In a recent Ontario decision regarding the Crown's obligation to disclose documents in an Occupational Health and Safety Act prosecution, the Court held that the prosecution did not have an obligation to disclose to the defendant any Ministry of Labour documents relating to a "guarding project" it undertook at the defendant's facility approximately seven to nine years before an alleged failure to guard a machine.

By way of background, the defendant company was charged with failing to guard a machine as required by the Industrial Establishments regulation under the OHSA.  The alleged offence date was in 2016.  Between 2007 and 2009, MOL officials had engaged in a "guarding project" at the defendant's facility.

Shortly before the start of the trial in respect of the guarding charge, defence counsel recognized that documents relating to the "guarding project", which were not disclosed by the prosecution, would be relevant to the defence of the charge.  As a result, defence counsel brought an application before the court requesting that the prosecution disclose the documents, arguing that the documents were required for the defendant to make full answer and defence, which included presenting defences of due diligence, officially induced error and reliance on a regulator.  The prosecution countered that it had no obligation to disclose the information because the information was dated and irrelevant, and in any event, the prosecution was not in possession of the requested information.

The Court noted that the right to make full answer and defence is a broad concept that includes the right to disclosure.  The Crown (prosecution) has a duty to disclose all relevant, non-privileged information in its possession or control, whether inculpatory or exculpatory. This is referred to as first party disclosure.  (For the purposes of disclosure, the "Crown" refers to the prosecuting Crown, not all Crown entities.  All other Crown entities, including police, are third parties for the purposes of disclosure.)

The Court stated that the MOL's obligation to provide information to the prosecution is limited to the "fruits of the investigation" and information that is "obviously relevant" to the defendant's case. "Obviously relevant" means relevant in the context of a defendant's ability to meet the prosecution's case, raise a defence or make decisions with respect to the conduct of the defence.

In this case, the documents relating to the "guarding project" were not in the possession or control of the prosecution.  Further, the information sought, which was in the possession of the MOL, did not meet the criteria of "fruits of the investigation" because the information was not "generated or acquired during or as a result of the specific investigation into the charges against the accused".  Finally, the documents were not "obviously relevant" because of the significant lapse of time between the "guarding project" and the occurrence of the alleged offence, during which time the machine had been altered.

As a result, the Court held that the requested information did not fit within the first party disclosure regime, and the prosecution therefore had no obligation to disclose the documents to the defendant. 

Notably, the prosecution took the position that, had the defence requested the "guarding project" documents earlier, it would have acted in good faith and made inquiries as to what information could be provided.  As such, this case serves as an important reminder to consider and request any and all potential documents that may exist relating to a charge under the OHSA as early as possible in the prosecution process, and to obtain legal advice as early as possible after an incident or after OHSA charges have been laid.

Click here to read the Court's decision.

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