ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-300-68
DATE: 2013/12/13
B E T W E E N:
Her Majesty the Queen
Respondent
- and -
Denis Pilon and Narissa Somji, Public Prosecution Service of Canada, Competition Law Section, Counsel for the Crown
Marina Durward, Susan Laycock, Philip McDonald, Donald Powell, Thomas Townsend, 1484558 Ontario Inc. (formerly known as “Brainhunter Inc.”), Ronald Walker, David Watts, The Devon Group Ltd., Spearhead Management Canada Ltd., and TPG Technology Consulting Ltd.
Defendants
The Applicants, Marina Durward, Susan Laycock, Thomas Townsend, Ronald Walker, David Watts, represented themselves
The Devon Group Ltd. was represented by David Watts
HEARD: October 8, 2013,
(at Ottawa, Ontario)
REASONS FOR DECISION ON APPLICATIONS
PURSUANT TO SS. 11(b) AND 24(1) OF THE CHARTER
MADAM JUSTICE B. R. WARKENTIN
[1] This decision deals with applications by five accused to have the charges against them dismissed for delay pursuant to ss. 11(b) and 24(1) of the Charter of Rights and Freedoms (the “Charter”). The applicants are Marina Durward, Susan Laycock, Thomas Townsend, David Watts, Ronald Walker and the Devon Group Ltd. Their applications were heard together and as such I have dealt with all five applications collectively in these Reasons.
Background
[2] The applicants were in the business of providing IT resources to the government and to the private sector. During 2005, Public Works and Government Services Canada (“PWGSC”) issued Requests for Proposals (“RFPs”) and it is as a result of the responses to these RFPs by these applicants and others that charges were laid.
[3] In 2006, the Competition Bureau (the “Bureau”) commenced an inquiry into bid-rigging allegations against fourteen individuals and seven companies, five of whom were these applicants. All 19 were alleged to have coordinated their bids for IT service contracts with the federal government in violation of the Competition Act. On February 17, 2009, at the request of the Bureau, the Attorney General filed criminal charges against the suspected companies and individuals.
[4] The theory of the Crown is that the accused decided to unify their efforts to win all the contracts from certain identified RFPs. To achieve that result, they are alleged to have participated in numerous meetings, communications (orally and in writing) and the sharing of information about technical requirements and pricing of bids. They are also alleged to have delegated specific roles among themselves in the preparation of the bids and to have maintained a “tracking list” identifying the parties, the winning RFPs, their resources, the prices, the contracts awarded, and to have acted collectively in responding to the authorities or in dealing with the contracts awarded.
[5] After the completion of the preliminary inquiry, 15 individuals and corporations were committed to stand trial, charged with bid-rigging, contrary to s. 47(2) of the Competition Act and conspiring to bid-rig under s. 465(1)(c) of the Criminal Code of Canada. Ms. Laycock was also charged with two counts of counselling someone to commit bid-rigging under s. 464(a) of the Criminal Code of Canada.
[6] Four of the 15 accused have had their charges severed and have elected to be tried by judge alone. The remaining 11 accused have elected to be tried by judge and jury.
[7] Of the 11 who have elected to be tried by judge and jury, the five individuals and one corporation named above have brought these 11(b) and s. 24(1) Charter applications to have their charges stayed on the grounds that there has been unreasonable delay in the proceedings. The corporation, The Devon Group Ltd., did not file an application or any materials on this application; however, its principle, David Watts, is one of the five individuals seeking dismissal for delay in this application and while not specifically submitted, should the application on behalf of Mr. Watts be granted, it would be granted as against The Devon Group Ltd. also.
[8] The materials submitted by four of the applicants, David Watts, Ronald Walker, Marina Durward and Susan Laycock, were substantially similar in both format and substance. The application by Thomas Townsend advanced additional arguments that were somewhat unique to those of the other applicants.
[9] Because this is an application for dismissal of the charges as a result of delay, the timeline of proceedings is important. All applicants argued that the time between the laying of charges in February 2009 and the scheduled trial date of September 2014, a period of 5 years and 7 months, is unreasonable. While specifically highlighted by Mr. Townsend, all of the applicants also claimed that the period between the execution of the search warrant at their individual premises in September 2006 until the charges were laid in February 2009 should be considered when examining the totality of the delay.
[10] In support of their applications, David Watts, Ronald Walker, Marina Durward and Susan Laycock claimed:
a) That the delay is prejudicial to them as self-represented accused. Because of the scope and complexity of the case, legal representation is too expensive for these applicants who have therefore decided to represent themselves. The trial is expected to last four months and will require the applicants to take leaves of absence from their respective employment, which will cause hardship.
b) The delay will result in a loss of witnesses and evidence. The alleged criminal acts took place in and around 2005 and the applicants expressed concern that their rights to make full answer and defence have been compromised by the length of the delay. The applicants state that they may have trouble locating potential witnesses and they have concerns that the witnesses’ memories for events that occurred almost 10 years ago will be severely compromised. In addition, the applicants are concerned about the loss of documentary evidence that may have been able to support their defence.
c) The length of time this matter has been ongoing has caused health concerns caused by the stress affiliated with undue delay, loss of personal and business reputation, financial impacts relating to the loss of business, and international travel concerns.
[11] The charges relating to three of the applicants, Thomas Townsend, David Watts and Ronald Walker, relate to an RFP with Transport Canada and they have each been charged on only two of the 22 counts. The corporate applicant, The Devon Group Ltd., is charged on one of the 22 counts. These three applicants claim that there has been an unnecessary delay in bringing the charges against them to trial because of the Crown’s decision not to sever the charges relating to the Transport Canada RFP from those of the other accused charged on the Canada Border Services Agency RFPs.
[12] In support of their position, these applicants alleged that it was unfair of the Crown to agree to sever the charges in relation to four of the accused who elected to proceed by judge alone and not to sever their charges.
Applicant Thomas Townsend
[13] In addition to the allegations of delay that he alleges violate his s. 11 (b) Charter rights, the applicant, Thomas Townsend alleged misfeasance on the part of the Crown and the Bureau in the conduct of the investigation and management of the charges against him.
[14] Mr. Townsend has alleged that he has suffered prejudice due to the Bureau’s public statements about its investigation that Mr. Townsend claims were defamatory.
[15] Mr. Townsend submitted that the Crown caused undue delay by not properly screening the charges against him with regard to the charges that related to one of the Canada Border Services Agency RFPs. Mr. Townsend was initially charged on two other counts; however, those charges were quashed at the preliminary inquiry.
[16] Mr. Townsend then alleged that the Crown mischaracterized his position regarding both his election for a judge and jury trial and whether or not he consented to the delays resulting from a certiorari application brought by six of the accused after the preliminary inquiry, and claims he never agreed to the delays caused by the certiorari application.
[17] As with the other applicants, Mr. Townsend claims that due to the extensive passage of time, the Court should infer prejudice. Mr. Townsend argued that the likelihood that this trial, once disposed of, will be appealed by either party should also be considered when calculating the length of the delay in this 11(b) application. He claims his 11(b) rights include the right to have the matter finally disposed of in a reasonable period of time, including all appeals.
[18] Alternatively, Mr. Townsend seeks an order that he be granted the same election as other co-accused to that of trial by judge alone, claiming that he was not given a meaningful opportunity to make this election on previous occasions.
Position of the Crown
[19] The Crown asks the Court to dismiss the 11(b) applications. It is the Crown’s position that there was no delay caused by the Crown and that all of the delay since the laying of the charges was caused either by the inherent time requirements of the court process or by one or more of the accused with the knowledge and consent of all the accused.
[20] The Crown denied that the applicants have suffered prejudice from the delay. None of the accused has ever been detained and the Crown argued that all the accused were and remain able to make full answer and defence. The Crown also claimed to have acted well beyond its obligations in attempting to assist the accused with understanding the nature of the charges against them.
[21] With respect to the severing of charges, the Crown submitted that it is entitled to prosecute the claim as it deems appropriate. The Crown has endeavored to assist these applicants, but is not prepared to sever charges and then be in a position of conducting a number of trials on the same issues, particularly when the charges against the accused are interrelated. The Crown also noted that the Transport Canada RFP contains the largest number of accused and is the most complex of all of the RFPs for which charges are laid. It would not be in the interests of justice to have a number of trials all of which would be similar in complexity and time.
[22] Finally, the Crown submitted that the applicants’ allegation that there has been a loss of evidence is not a credible argument because the evidence in this case is of a documentary nature that has been preserved and disclosed to all accused.
Issues Unrelated to s. 11(b) and s. 24(1)
[23] Mr. Townsend in his application, in addition to seeking that the charges against him be stayed as a result of his allegation that the delays in bringing this matter to trial are unreasonable, has asked the court to strike down s. 47 of the Competition Act as unconstitutional. Because this is a separate issue, unrelated to the s. 11(b) Charter issues, a separate hearing has been scheduled to hear argument on this application. Mr. Townsend was advised that, notwithstanding that a date was scheduled for his application, he was still required to file the requisite application materials in the appropriate timeframe in order for his application to proceed.
[24] Similarly, some of the applicants wish to be excused from attending the entire trial, particularly those portions of the trial that do not relate to the charges that are specific to them. Another series of pre-trial dates has been scheduled to hear argument on this issue, provided the applicants who wish to take this position file the requisite application materials.
[25] These reasons therefore deal only with the issue of s. 11(b) and s. 24(1) of the Charter, whether or not the charges against these applicants should be stayed for delay.
The Law
[26] Section 11(b) of the Canadian Charter of Rights and Freedoms provides that every person charged with a criminal offence has the right to be tried within a reasonable time. The factors to be considered in determining whether an accused person’s s. 11(b) rights have been infringed are set out in a number of cases; however, the leading case remains the Supreme Court of Canada case of R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771.
[27] The Morin principles were recently summarized by Boswell J. in R. v. D.M., 2012 ONSC 221 at paras. 10‑12:
Section 11(b) of the Canadian Charter of Rights and Freedoms (the "Charter") provides that every person charged with a criminal offence has the right to be tried within a reasonable time. This right serves to protect and promote a number of key individual interests. First, it serves to minimize the anxiety and stigma associated with being charged with a criminal offence. Second, it serves to reduce the restrictions on liberty that may result from pre-trial incarceration and/or restrictive bail conditions. Third, it promotes the hearing of proceedings while evidence is available and fresh. At the same time, it promotes society's interest in seeing that trials are held within a reasonable time, and in seeing that those who transgress the law are dealt with fairly and according to law: see R. v. Morin, as above, at paras. 27‑28 and R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45.
The leading authority on s. 11(b) applications remains the Supreme Court's 1992 decision in R. v. Morin, as above. In Morin, Mr. Justice Sopinka confirmed that the primary purpose of s. 11(b) is the protection of the individual rights of the accused. That said, there are always significant societal interests in play when an accused seeks to have criminal charges stayed on the basis of delay. The remedy of a stay permanently prevents the state from prosecuting alleged criminal acts. Courts must balance the individual rights of the accused and society's interests within the factual context of each individual case, having regard to the particulars and causes of any impugned delays. A purely mathematical calculation of the time between charge and trial is not sufficient - a contextual analysis is necessary in every case.
In Morin, the Supreme Court provided a framework for the requisite judicial balancing. Within that framework, four factors must be considered:
(i) The length of the delay. This factor requires a general overview of the length of any delays. If the delays are prima facie unexceptional then further inquiry is not necessary. Where the delays do warrant further inquiry, the remaining three factors are to be considered;
(ii) Any waivers of time periods. Any time periods unequivocally waived by an accused are to be deducted from the overall period of delay;
(iii) The reasons for the delay, including five sub-categories:
- inherent time requirements of the case;
- actions of the accused;
- actions of the Crown;
- institutional resources;
- other reasons for delay;
(iii) Prejudice to the accused. There are two types of prejudice that factor into the 11(b) analysis. First, inferential prejudice, which arises from the delay itself. The longer the delay, the more likely it is that a court will infer prejudice. Second, prejudice, or a lack thereof, based on evidence led by the accused or the Crown.
[28] In any s. 11(b) Charter application, the judicial process requires an examination of the length of the delay and conducts a balancing of the factors set out in Morin.
[29] The burden of proof throughout is on the accused: R. v. Smith, 1989 12 (SCC), [1989] 2 S.C.R. 1120 at 1132‑33.
[30] In considering the applications for a stay of proceedings against these five accused, I will address each of the four factors as set out above.
(Decision continues with the full reasons exactly as in the source.)
Madam Justice B. R. Warkentin
Released with publication ban: December 13, 2013
Released for publishing: May 20, 2015
COURT FILE NO.: 09‑300‑68
DATE: 2013/12/13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
– and –
Marina Durward, Susan Laycock, Philip McDonald, Donald Powell, Thomas Townsend, 1484558 Ontario Inc. (formerly known as “Brainhunter Inc.”), Ronald Walker, David Watts, The Devon Group Ltd., Spearhead Management Canada Ltd., and TPG Technology Consulting Ltd.
Defendants
REASONS FOR DECISION ON APPLICATIONS PURSUANT TO
SS. 11(b) AND 24(1) OF THE CHARTER
Warkentin J.
Released with publication ban: December 13, 2013
Released for publishing: May 20, 2015