Defence in stage collapse want charges stayed

Unreasonable-delay argument comes after judge says he no longer has jurisdiction

More than five years after a stage collapse at an outdoor Radiohead concert that killed drum technician Scott Johnson, defence lawyers argued in court Monday that charges should be stayed because of unreasonable delays in the legal process.

Charges were first laid against entertainment company Live Nation, engineer Domenic Cugliari and contractor Optex Staging in June 2013.

After an already-lengthy case, the trial now has to start over again after a mistrial was declared this spring. Closing arguments were supposed to begin in June, but the presiding judge, Justice Shaun Nakatsuru, was appointed to the Ontario Superior Court earlier this year and decided that he no longer had jurisdiction over the case.

The new trial is scheduled to begin on Sept. 5 and end in May 2018 — almost five years since charges were laid.

Lawyers for Live Nation and Cugliari, Jack Siegel and Scott Thompson, argued the trial isn’t happening within a reasonable period of time, violating their charter rights to a timely trial.

“By that time, and in fact before we get there, we’ll have reached a point where any complexity cannot possibly justify the delay,” said Siegel, who represents Live Nation.

The Supreme Court of Canada’s landmark Jordan decision last summer established new time limits on court proceedings, stating that cases heard in provincial court should go to trial within 18 months, and those heard in Superior Court should go to trial within 30 months.

This is the second time Cugliari and Live Nation have applied to get charges stayed over unreasonable delays. Last October, Justice Nakatsuru dismissed their attempt, saying the trial’s slow pace was acceptable because the highly technical evidence made the case particularly complex.

Live Nation Canada, Live Nation Ontario and Optex Staging each face four charges alleging they failed to ensure the stage structure was being built in a safe manner. Cugliari, the engineer, faces one count of endangering a worker because his advice or certification was allegedly made negligently or incompetently.

On Monday, Siegel and Thompson argued that the complexity of the case does not justify a roughly 60month delay. The lawyers argued that Nakatsuru’s appointment was not a “discrete event.” Under the Jordan ruling, delays caused by “discrete events” that were unforeseen or unavoidable don’t count as part of the overall delay.

Siegel said that the mistrial caused by Justice Shaun Nakatsuru’s appointment to the Superior Court could have been avoided by the justice system. The Crown could have adopted an amendment that allowed Justice Nakatsuru to continue the trial, he said; the judge’s appointment could have been postponed, or the judge could have declined or asked for a deferral.

“My submission is that all of the state actors collectively have a responsibility to ensure these delays do not happen,” Siegel said.

Crown prosecutor David McCaskill said the court should only look at the delays caused by the judge’s appointment, which he called a discrete event. McCaskill said the justice system’s response to the mistrial and the time allotted for the new trial is reasonable.

Siegel, however, said there’s a need to examine the whole case, and assess the delays “cumulatively.”

The 2012 collapse killed Scott Johnson, a 33-year-old British drum technician who was touring with Radiohead. Three other workers were injured after part of the stage structure came crashing down during setup for the concert at Downsview Park.

Johnson’s father, Ken, said the attempt to stay charges again is “extremely annoying.” He said the case needs to have closure, so they can know for certain what caused the collapse that killed his son, and ensure it doesn’t happen again.

“Scott, my son, he’s been waiting a long time for the answers,” said Johnson, speaking over the phone from his home in England.

“I just feel it needs to be completed. They can’t just put it off because of the time factor, it doesn’t make sense.”

Justice Ann Nelson said the parties will be contacted about what to expect for the scheduled trial start on Sept. 5.

“They can’t just put it off because of the time factor, it doesn’t make sense.”

KEN JOHNSON FATHER OF SCOTT, RADIOHEAD DRUM TECHNICIAN KILLED IN THE COLLAPSE