Canadian Safety Reporter

2 Canadian HR Reporter, a Thomson Reuters business 2017 CSR | August 2017 | News as part of its world tour. The concert promoter, Live Nation Canada, contracted Optex Stag- ing and Services to build a large outdoor stage in the park for the concert. However, a short time before the venue was to be opened to ticketholders, the large roof overhanging the stage collapsed, crushing a drum technician who was a member of Radiohead's road crew. Emergency first- responders rushed to the scene, but the drum technician died of his injuries. Three other workers were injured in the accident. The Ontario Ministry of La- bour investigated the stage roof collapse. As a result of the inves- tigation, Live Nation Canada, its subsidiary Live Nation Ontario, and Optex were all charged with four counts of failing to ensure the stage structure was built in a safe manner. Domenic Cugli- ari, the engineer who oversaw construction of the stage, was charged with one count of en- dangering a worker from negli- gent or incompetent advice or certification. The trial proceeded and Jus- tice Shaun Nakatsuru of the Ontario Court of Justice was the presiding judge. Justice Nakat- suru heard all of the evidence in various hearings over the past few years and three days for ar- gument were set aside in June 2017, for which the Crown and Cugliari's counsel prepared writ- ten submissions. Judge appointed to higher court after hearing evidence However, things took a turn when Justice Nakatsuru was ap- pointed to the Superior Court of Ontario on April 12, 2017, meaning he was no longer a pro- vincial court judge. The Crown argued that the appointment shouldn't matter to the proceed- ings, as the Canada Criminal Code stipulates that when a pro- vincial court judge is appointed to another court, that judge maintains jurisdiction to finish the trial. The Ontario Provincial Offences Act doesn't have such a provision, but it does require that a justice presiding over a trial must preside over the whole trial once evidence is heard. The Crown also argued that the On- tario act's principles of interpre- tation results in the application of the Criminal Code provisions where there is absence of a spe- cific provision. Cugliari's counsel disagreed, arguing that Justice Nakatsuru's appointment to a higher court took away his jurisdiction to hear the case, since there was no specific Ontario legislation to permit continuing jurisdiction for the judge — the Criminal Code did not apply to provincial cases such as this one. Justice Nakatsuru agreed that when Parliament passed the Criminal Code's continuing ju- risdiction clause, it "envisioned a situation like this arising and made provision for a clear grant of continuing jurisdiction." However, the Ontario Provin- cial Offences Act didn't specifi- cally cover such circumstances. Though the latter act states the presiding justice shall preside over the "whole of the trial," it also allows for conducting of a new trial under another justice if the presiding judge dies or can- not continue. The Ontario act also states "a justice presiding at a trial may, at any stage of the trial and upon the consent of the prosecutor and defendant, order that the trial be conducted by an- other justice" and things would proceed as under the provision dealing with a judge's death or inability to continue. Nakatsuru found the Ontario Courts of Justice Act did not support him continuing to pre- side over the case after his ap- pointment — s. 123(2) of the act stated a judge could participate in a decision in a matter previ- ously heard by that judge if ap- pointed to another court, but s. 95(3) of the same act excluded this clause from "proceedings under the Provincial Offences Act." The Provincial Offences Act applied to the case against Live Nation, Optex, and Cugli- ari, and it states that "a proceed- ing in respect of an offence shall be heard and determined by the Ontario Court of Justice sitting in the county or district in which the offence occurred" and by a provincial judge or justice of the peace. Justice Nakatsuru also found that if such an appointment to another court didn't have an im- pact on his jurisdiction, then the Criminal Code and other pieces of legislation wouldn't need to have provisions addressing the issue. In addition, the Crown elected to have the case heard by a provincial court judge un- der the Ontario Occupational Health and Safety Act, meaning the case must be presided over by a provincial court judge. As of April 12, 2017, when he was appointed to the Superior Court of Ontairo, Justice Nakatsuru was no longer a provincial court judge. "The lack of any continuing jurisdiction in the circumstanc- es of this case means that I can no longer sit on this trial," said Justice Nakatsuru. "By failing to enact a provision similar to (the Criminal Code provision allow- ing continuance of jurisdiction) in the Provincial Offences Act, means that the (Ontario) Legis- lature intended that there can be no continuing authority for me to finish this trial." Justice Nakatsuru recognized that the time and costs spent on the trial so far were signifi- cant and made for "a number of strong practical arguments in favour" of him presiding to the end, but said "practicality and convenience do not confer jurisdiction." He declared a mis- trial and ordered a new trial with a new provincial court judge, which was set to begin in Sep- tember. However, counsel for the de- fendants told the Canadian Press that they will be applying to have the charges thrown out due to unreasonable court delays, as five years had passed since the charges had been laid. For more information see: • R. v. Live Nation Canada Inc., 2017 CarswellOnt 8559 (Ont. C.J.). Trial < pg. 1 Crown chose provincial court judge under OHSA Credit: Shutterstock/omnimoney

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