A Manitoulin Island man is no longer facing criminal negligence causing death charges after a judge ruled delays in bringing the case to trial were a violation of his rights.
The case dates back to June 21, 2012, when Wesley Gatchell, 49, of Massey was killed in an accident involving a crane in Gordon Township. Gatchell was working with a crane at a business on Highway 540 when the crane tipped over and struck him.
“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 court transcripts read. “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.”
The Ontario Provincial Police and the Ontario Ministry of Labour both investigated, with the MOL laying charges in May 2013. Business owner Ron Campbell pleaded guilty in April 2014 to a charge of failing to ensure that a crane was in good operating condition and was fined $3,500.
The OPP laid a charge of criminal negligence causing death in September 2014. But a series of delays meant that his trial was eventually set to begin in October 2017, more than five years after the incident took place.
While some of the delay was related to Campbell's change in lawyers, the judge ruled the main issue in the case was police's decision to wait until the MOL charges were dealt with before laying charges of their own.
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.
“For instance, the ministry has the right ... 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,” the Crown argued. “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 the day of the incident 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 Crown also argued the MOL case and the OPP case were different, even though they stemmed from the same incident.
“Although the informations arise from the same event and victim, the charges address different societal interests and conduct,” the Crown argued.
And because a significant amount of the delay was connected to Campbell switching lawyers, the Crown argued the delay attributed to the police is 24 months, 11 days, not enough to qualify under R v Jordan.
The R v Jordan case is a landmark court ruling that set a limit of 30 months for bringing cases like this to trial, but delays caused by the defence can't be counted. Since the ruling, more than 200 cases have been tossed due to prosecution delays.
While accepting the Crown argument the case doesn't qualify under Jordan, the judge ruled the OPP caused an unreasonable delay by deciding to wait until after the MOL charges were dealt with rather than proceeding sooner.
“There was no reason why the OPP investigation could not have proceeded in tandem with the investigation of the Ministry of Labour,” the judge wrote. “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 performing such investigations is not a valid explanation.
“There was no necessity for waiting until after the applicant had pled guilty to the offence under the Occupational Health and Safety Act. Furthermore, it is obvious that the ministry was cooperating with the investigation of the OPP.”
While a delay can be considered reasonable if a case or investigation is particularly complicated, this was a relatively straightforward situation, the court ruled.
“The police’s uncertainty 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,” the decision states. “This is 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.”
And an important witness died since the incident, making it more difficult for the defendant to present his case. The judge wrote that people have a right to expect that once they have been dealt with in court, they can expect finality to their legal case. Trying Campbell on MOL charges and then laying criminal charges afterwards was unfair.
“The accused should have a sense of security that when he or she makes a decision on a set of charges, that decision resolves the case in its entirety,” the court ruled. “He or she should not be under a sense of false security. An expectation of finality is not unreasonable. To have further charges laid after such a lengthy period of time causes me to find a degree of unfairness which the community would not accept.
“Accordingly, given the above analysis, in my view there is a breach (and) stay of the proceedings on the criminal negligence charge is granted.”
