It will be tougher to delay court trials because of Covid

Tickets and court summonses for truck drivers and their companies are often made under highway traffic legislation, regulations concerning the transportation of dangerous goods, or regulations governing general workplace conditions such as smoking. Usually, these are all prosecuted in our provincial courts.

Companies are often (rightly) eager to defend such charges, or to negotiate “plea deals”, because a conviction can negatively affects safety rating and insurance rates. Sometimes independent operators are similarly incentivized to defend charges because of penalty clauses in their contracts.

Blocking covid
(Illustration: istock)

According to Supreme Court of Canada guidance regarding the constitutional right to a speedy trial, such offences need to be tried within 18 months (or 30 months for more serious offences or offences tried in superior courts), subject to unreasonable delays attributable to the accused. If the Crown cannot shepherd its case along in time, the result will be a “stay” of the charges, meaning that no conviction will be registered.

The presumptive 18-month deadline can be adjusted for “exceptional circumstances”. These “exceptional circumstances” can either be specific to an unusually complex matter, or simply refer to discrete situations that are beyond the control of the prosecutor without any reasonable method to mitigate the delay.

Typically, the steps to a prosecution include serving the ticket or summons, answering any request for Crown disclosure (the prosecutor is supposed to provide everything in their file so that the accused can mount a fair defence), an “early resolution meeting” to discuss a potential settlement, at least one procedural hearing, and a trial.

If a trial is required, it is not uncommon for these steps to take the better part of a year in busier locales. Thus, there is usually some “wiggle room” for an inattentive or busy prosecutor. As a result, Crown disclosure is often not made in a timely way, causing the first hearing to be adjourned to a later date.

During the Covid era, however, the ability of courts and prosecutors to keep up has been compromised. At first, courts were largely closed and staff were unable to work efficiently from home. More recently, as things have begun to return to a level of normalcy, they have been working against a significant backlog.

Several cases across the country have allowed Covid-related restrictions to count as “exceptional circumstances”, especially in B.C. and Ontario. However, as hearings have moved online and as hybrid work has become more of a reality for court staff, it will likely become increasingly difficult for prosecutors to blame systemic limitations for their delays. The Supreme Court’s guidance is for the parties to do what they reasonably can to minimize delays. It is never satisfactory for one side to sit on its hands.

Each case will turn on its own facts, but defendants to regulatory charges are advised to act prudently and cooperatively. This will ensure they are onside with the Supreme Court’s requirements, and it will also help to color any delay as something that ought to be attributed to the prosecution. At the same time, they should be mindful of their constitutional entitlement to a speedy trial, which could provide leverage in negotiating a plea deal if not a complete defense at trial.

Alan S. Cofman is associate counsel at Miller Thomson LLP, and can be reached by calling 416-595-8578, or emailing acofman@millerthomson.com.


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