As we’ve mentioned in previous posts, from the moment charges are laid, there is an ongoing obligation on Crown Prosecutors to review:
whether there is a “reasonable likelihood of conviction”, and
whether a prosecution is in the “public interest”.
If at any time either one of those considerations are answered in the negative, the Crown is under an obligation to stay the charges.
On the defence side of things, that means that we really have two opportunities to try and get the charges dealt with or stayed. The first is before trial, should we decide to play our hand and try to convince the Crown that it does not, in fact, have a “reasonable likelihood of conviction”. The second, of course, is at trial, where we would try to convince the judge that the Crown had not proven it’s case “beyond a reasonable doubt”, either because the evidence fell short of proving the charges themselves, or because we had an acceptable defence.
While the latter may make for some dramatic television moments, more often than not our best work takes place outside of the courtroom.
Case in point: We recently represented a client that suffered a workplace incident. Although provincial workplace health and safety took conduct of the subsequent investigation and ultimately recommended charges, our own investigation into the matter revealed that:
(a) the client was regularly and continuously crossing provincial boundaries in the course of its operations. Even though it wasn't a "transportation company" in the traditional sense, the fact that the client was transporting its own equipment meant that the client was, at law, a "federally regulated transportation undertaking" and therefore not subject to the OH&S Act;
(b) although not a “farming and ranching operation” in the traditional sense, the client and its workers were, at the time of the incident, “directly or indirectly involved” in the “production of crops” and in the “raising and maintenance of livestock”, which meant that the client was, at law, captured by the terms of what was then the Farming and Ranching Exemption Regulation, and therefore not subject to the OH&S Act; and
(c) there was a real question about whether, given the client’s legal status, it could be found guilty of any alleged breach of the OH&S legislation outside of those specifically dealing with the “contractor” or “prime contractor” provisions in the OH&S Act.
As a result of our efforts, we were able to provide a convincing argument to the Crown that the charges ought to be withdrawn or stayed - all without the need or expense of a trial (although for the record, we’re of the opinion that a trial would have resulted in a "not guilty" verdict in any event)!