New trial ordered in deadly 2012 stage collapse

Drum technician was killed, three other workers were injured in accident before a Radiohead concert at Downsview Park

A new trial has been ordered for those charged in a stage collapse at an outdoor Radiohead concert in Toronto five years ago that killed drum technician Scott Johnson, 33.

“We’ve got to start over again,” said Crown lawyer David McCaskill.

“It’s frustrating that we were so close to the finish line.”

Closing arguments were supposed to begin this week, after the judge heard about 40 days worth of evidence and a number of motions over roughly the past year and a half, said McCaskill.

A mistrial was declared after the presiding judge, Justice Shaun Nakatsuru, was appointed to the Ontario Superior Court earlier this year, and ruled he no longer had jurisdiction over the case.

Nakatsuru said he came to the decision with “great regret.”

“My appointment was unexpected and without notice. I know that the defendants have waited a long time for the final resolution of this case. So has the public,” he wrote in his decision, noting that he empathizes deeply with the deceased’s father, who travelled from the United Kingdom more than once.

“There are many compelling reasons why it would be in the best interests of justice for me to finish this. But I cannot.”

Under the Criminal Code, when a judge is appointed to another court during a trial, he continues to have jurisdiction over that trial until its completion.

However, there is no similar provi- sion under the Provincial Offences Act.

The latest delay could put the case in jeopardy. One of the defence lawyers in the case, Scott Thompson, says they will be bringing an application to have the charges thrown out over unreasonable court delays. The motion is scheduled to be heard on Aug. 21.

New time limits established by the Supreme Court of Canada last summer state that cases heard in provincial court should go to trial within 18 months and those heard in Superior Court should do so within 30 months.

It’s been more than four years since the entertainment company Live Nation, a Toronto-area contractor Optex Staging and an engineer, Domenic Cugliari, were charged in 2013 with a total of 13 charges under the Occupational Health and Safety Act.

Live Nation Canada, Live Nation Ontario and Optex Staging each face four counts 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 as a result of allegedly negligent or incompetent advice or certification.

Nakatsuru rejected a similar application last fall, deeming the delay acceptable because of the highly technical nature of the evidence.

If the new motion is also unsuccessful, the new trial is scheduled to begin on Sept. 5, and continue through May of 2018.

McCaskill said they may not be able to get all of the same witnesses back for a new trial. Many of them came from overseas, he said, and one witness has died since testifying.

The Ministry of Labour, which administers the Occupational Health and Safety Act, declined to comment on the case as it remains before the courts, but said the right to be tried within a reasonable time is a fundamental part of the justice system.

“The Crown is always concerned about delays which interfere with that right,” a spokeswoman said in an email. A case management meeting is scheduled for July 20.

A British drum technician who was touring with the band was killed and three other workers were hurt after part of a massive outdoor structure came crashing down during setup for the June 2012 concert at Downsview Park.

The falling debris crushed drum technician Johnson, whom the band called “a highly skilled and valued member” of its road crew.

Johnson’s father, Ken, has travelled from his home in England to represent his son during the trial.

In 2016, he told the Star his family was enraged by the first application to have the case dismissed.

“I am sure that no one planned to kill Scott on that day, but if the case is not resolved, how do we know how to ensure it never happens again?” he said at the time.