Charges against an entertainment company and an engineer accused in a deadly 2012 stage collapse at a Radiohead concert in Toronto should be thrown out after a legal setback sent the case back to square one, defence lawyers argued Monday.
Lawyers for the entertainment company Live Nation and an engineer, Domenic Cugliari, told an Ontario court that the case has seen unreasonable delays that violate their clients’ right to a timely trial.
The case had already spanned years when it was set back by a mistrial this spring. A new trial was ordered after the presiding judge, Justice Shaun Nakatsuru, was appointed to a higher court and ruled he no longer had jurisdiction over the case.
By the time the new trial is scheduled to wrap up next May, it will have been close to five years since the Occupational Health and Safety Act charges were laid — far beyond the time limits established by the Supreme Court of Canada, lawyers for Live Nation and Cugliari said in their submissions.
“We’ll have reached the point where any complexity (in the case) cannot possibly justify the delay,” said Jack Siegel, who represents Live Nation.
New time limits established by Canada’s highest court last year state that cases heard in provincial court should go to trial within 18 months and those heard in Superior Court should do so within 30 months.
Under the rules laid out by the landmark ruling in R vs Jordan, delays caused by the defence or by unexpected “discrete” events are subtracted from the total time.
Siegel and Scott Thompson, who represents Cugliari, argued that the mistrial should not be considered a discrete event since the justice system was responsible for Nakatsuru’s appointment.
The judge could have requested to have the appointment deferred or turned it down, Siegel said.
It’s the second time the defence has sought to have the charges in the case thrown out over unreasonable delays. An earlier application was dismissed last fall by Nakatsuru, who found the case was complex enough to warrant a longer timeframe.
Prosecutor David McCaskill said Monday the court should honour Nakatsuru’s ruling and only assess the additional delays caused by the mistrial.
What must be decided, he argued, is whether the justice system’s response to that disruption was reasonable.
The defence disagreed, saying the court must examine the case “as a whole.”
“It’s all of these delays cumulatively that need to be assessed,” Siegel said.
Live Nation, Toronto-area contractor Optex Staging and Cugliari were charged in 2013 with a total of 13 charges under the provincial Occupational Health and Safety Act.
Live Nation Canada, Live Nation Ontario and Optex Staging each face four counts alleging they failed to ensure the stage structure was being built in a safe manner.
Cugliari faces one count of endangering a worker as a result of allegedly negligent or incompetent advice or certification.
A British drum technician who was touring with Radiohead was killed and three other workers were hurt after part of a massive outdoor structure came crashing down during setup for the June 2012 concert at Downsview Park.
Optex Staging has not applied for a stay of its charges but the judge has agreed that the company will face the same fate as Live Nation on the issue.
A new trial has been scheduled for Sept. 5. Ontario provincial court Justice Ann Nelson said she would give the lawyers an indication next week whether the trial will go ahead but would not have a full decision ready until later next month.