Defence moves to dismiss Radiohead stage collapse case after latest setback

Charges against an entertainment company and an engineer accused in a deadly 2012 stage collapse at a Radiohead
concert in Toronto should be thrown out after a legal setback sentthe case back to square one, defence lawyers argued Monday. Lawyers for the entertainment company Live Nation and anengineer, Domenic Cugliari, told an Ontario court that the case has seen unreasonable delays that violate their clients' right to a timely trial.

The case had already spanned years when it was set back by amistrial this spring. A new trial was ordered after the presiding judge, Justice Shaun Nakatsuru, was appointed to a higher court andruled he no longer had jurisdiction over the case.

• New trial ordered in deadly stage collapse at Radiohead concert in Toronto

By the time the new trial is scheduled to wrap up next May, itwill have been close to five years since the Occupational Health andSafety Act charges were laid - far beyond the time limitsestablished by the Supreme Court of Canada, lawyers for Live Nationand Cugliari said in their submissions.

"We'll have reached the point where any complexity (in the case)cannot possibly justify the delay," said Jack Siegel, whorepresents Live Nation. New time limits established by Canada's highest court last yearstate that cases heard in provincial court should go to trial within18 months and those heard in Superior Court should do so within 30
months.Under the rules laid out by the landmark ruling in R vs Jordan,delays caused by the defence or by unexpected "discrete" events are subtracted from the total time.

Siegel and Scott Thompson, who represents Cugliari, argued thatthe mistrial should not be considered a discrete event since thejustice system was responsible for Nakatsuru's appointment. The judge could have requested to have the appointment deferredor turned it down, Siegel said.

It's the second time the defence has sought to have the chargesin the case thrown out over unreasonable delays. An earlierapplication was dismissed last fall by Nakatsuru, who found the casewas complex enough to warrant a longer timeframe.Prosecutor David McCaskill said Monday the court should honourNakatsuru's ruling and only assess the additional delays caused bythe mistrial.

• Hearing continues for man killed after Radiohead stage collapse in 2012

What must be decided, he argued, is whether the justice system'sresponse to that disruption was reasonable. The defence disagreed, saying the court must examine the case"as a whole.""It's all of these delays cumulatively that need to beassessed," Siegel said.

Live Nation, Toronto-area contractor Optex Staging and Cugliariwere charged in 2013 with a total of 13 charges under the provincialOccupational Health and Safety Act. Live Nation Canada, Live Nation Ontario and Optex Staging each
face four counts alleging they failed to ensure the stage structurewas being built in a safe manner.

Cugliari faces one count of endangering a worker as a result ofallegedly negligent or incompetent advice or certification.
A British drum technician who was touring with Radiohead waskilled and three other workers were hurt after part of a massiveoutdoor structure came crashing down during setup for the June 2012concert at Downsview Park.

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Optex Staging has not applied for a stay of its charges but thejudge has agreed that the company will face the same fate as LiveNation on the issue.

A new trial has been scheduled for Sept. 5. Ontario provincialcourt Justice Ann Nelson said she would give the lawyers anindication next week whether the trial will go ahead but would nothave a full decision ready until later next month.