GORE BAY—A Gordon Township businessman no longer faces charges of criminal negligence causing bodily harm after a judge in the Superior Court of Justice ruled delays in the case coming to a trial was a violation of his rights.
As heard in court, the case relates back to June 21, 2012 when Wesley Gatchell, 49, of Massey was killed in an accident involving a crane in Gordon Township. Mr. Gatchell had been working with a crane at the business, Dad’s Sales and Service on Highway 540, when the crane tipped over and struck Mr. Gatchell.
Court transcripts explain that “the applicant was using his boom truck, i.e. a commercial truck with a crane mounted to the back, to execute the loading (of a utility trailer). The boom truck toppled over, pinning Wesley Gatchell and inflicting fatal injuries. The failure to extend the outriggers and stabilizers resulted in the boom truck toppling over.”
As a result of the accident, both the Ontario Provincial Police and the Ministry of Labour (MOL) investigated, with the MOL laying charges in May, 2013. Ron Campbell, owner of the business, pleaded guilty in court in April 2014 to the charge of failing to ensure that a crane was in good operating condition and was subsequently fined $3,500.
The OPP laid a charge of criminal negligence causing death in September 2014. However, several delays meant that Mr. Campbell’s trial was eventually set to begin in October 2017, a period of more than five years after the original incident took place.
Crown Attorney Dave Beaton argued that it is clear in law that the Crown has the outright decision in making investigative and prosecutorial processes. As court transcripts explain, in this case, the Crown decided to wait until the Ministry of Labour investigation pursuant to the Occupational Health and Safety Act, R.S.O. 1990, c.0.1. was complete before proceeding with criminal negligence charges. “Since the incident occurred at the workplace, the Ministry of Labour became involved. The Occupational Health and Safety Act grants the ministry much wider powers of investigation without the necessity of a search warrant than under criminal investigation by the OPP. For instance, the ministry has the right, pursuant to w.54(1) of the Occupational Health and Safety Act, to enter in or upon any workplace at any time and without warrant or notice, seize any equipment, require production of documents and conduct testing, among other powers.”
In the court transcripts it is noted that while some of the delay was related to Mr. Campbell’s change in lawyers, Judge Robert Del Frate ruled that the main issue in the case was the police’s decision to wait until the MOL charges were dealt with before laying their own charges.
The Crown argued the ministry was the lead investigator in the case and had broader investigative powers. Unlike police, they didn’t have to get warrants. “While the OPP had the ability to obtain the same information, it would have to be gathered pursuant to a search warrant. The decision was made that the ministry would conduct the investigation and the OPP would assist.”
“Accordingly, the OPP took statements from various witnesses, but did not have access to all of the evidence collected by the ministry,” the court documents reveal.
The Crown further argued that the MOL case and the OPP case were different, although they stemmed from the same incident, and because a significant amount of the delay was in relation to Mr. Campbell having switched lawyers, the Crown argued that the delay attributed to the police was 24 moths, 11 days, not enough to qualify under R v. Jordan (a ruling that sets a limit of 30 months for bringing cases like this to trial).
Judge Del Frate said the OPP shouldn’t have waited for the MOL charges had been deal with before they laid their own charges. The Judge said this was unfair. “Firstly, there was no reason why the OPP investigation could not have proceeded in tandem with the investigation of the Ministry of Labour. “Though the ministry has greater powers of search and seizure, there was nothing precluding the OPP from obtaining a search warrant so that the same evidence could be retrieved. A lack of expertise (on the part of an officer) performing such investigations is not a valid explanation. The police could have obtained the production order much sooner and there was no necessity for waiting until after the applicant had pled guilty to the offence and the Occupational Health and Safety Act,” said the judge.
“Furthermore, it is obvious that the ministry was cooperating with the investigation of the OPP since within seven days of the OPP obtaining the production order, the entire file was forwarded to the OPP.”
“In my view, the applicant has been prejudiced by the pre-charge delay in laying the criminal negligence charge. Not only is there the additional turmoil associated with prolonging this matter, but one has to consider the financial cost of defending two separate charges arising from the same facts. Some five years later, he still does not have any finality to this incident,” read the judge in his decision.
“Even though the charges arise from the same factual situations, the applicable legal principles are different. However, what makes it an apparent unfairness to the accused is the sequence which the charges were laid. The Crown could have laid the criminal charges at the same time as the Occupational Health and Safety Act charges,” the judge read. “Both sets of charges could have proceeded in tandem.”
“At the very least if it was the Crown’s intention from the beginning that the criminal charges would be laid, a more emphatic notice should have been given to the applicant. It appears that the only notice of possible Criminal Code charges given to the applicant was on June 22, 2012 (when an OPP constable cautioned the applicant),” said the judge
“I do find that the police’s uncertainly in laying the criminal charges after the plea to the provincial offences constitutes a breach of the sense of fair play, an act which offends the community. This so especially when one considers that this was not a detailed or sophisticated investigation. As stated previously, all of the evidence except for the experts reports were obtained early on. Once the first reports were available, the OPP did not avail itself of a production order until after the applicant had pled guilty on April 17, 2014,” said the judge. “Accordingly, given the above analysis, in my view there is a breach pursuant to w.7 and 11(d) of the Charter. A stay of the proceedings on the criminal negligence charge is granted.”
