COURT FILE NO.: 09-300-68 DATE: 2014-04-07
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
— 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.
Accused
Counsel: Denis Pilon and Narissa Somji, Counsel for the Respondent The Applicants Ronald Walker, David Watts and The Devon Group Ltd. represented themselves
HEARD: February 20, 2014, at Ottawa, Ontario
REASONS FOR DECISION ON APPLICATIONS
(S. 650 of the Criminal Code of Canada)
Madam Justice B. R. Warkentin
[1] Three of the accused, Ronald Walker, David Watts and the Devon Group Ltd. (the “Applicants”), are asking this Court for permission to be absent during portions of their trial pursuant to section 650(2)(b) of the Criminal Code. Ronald Walker and David Watts are representing themselves and the Devon Group Ltd. is represented by David Watts as its agent.
[2] The Applicants together with five other individuals and three more corporations are charged with bid rigging contrary to s. 47(2) of the Competition Act and conspiring to bid-rig under section 465(1)(c) of the Criminal Code. In total there are seven individuals and four corporations charged on a 22 count indictment. Ronald Walker and David Watts are charged with two of the 22 counts and the Devon Group Ltd is charged with one of the 22 counts.
[3] The trial is scheduled to begin on September 2, 2014 before a judge and jury. It is expected the trial will last for 15 weeks.
[4] There are two more weeks of pre-trial motions scheduled for the weeks of April 23 and May 2, 2014. Some pre-trial motions, including this application, have already been heard.
[5] Section 650(1) of the Criminal Code requires an accused (other than an organization) to be present in court during the whole of his or her trial. This principle has long been of fundamental importance to the proper administration of justice in Canada and is intended to protect the accused’s right to full answer and defence as well as to ensure trial fairness.
[6] The Court does have a discretion under s. 650(2)(b) to permit an accused to be absent during the whole or a part of the trial on such conditions as the Court thinks are proper.
Position of the Applicants
[7] Mr. Watts’ and Mr. Walker’s arguments are essentially the same. They contend that because they have been charged with only two of the 22 counts on the indictment, charges involving allegations relating to certain Transport Canada Requests for Proposals (“RFP”s) on an indictment where the remaining 20 charges involve allegations relating to Canada Border Services Agency and Canada On-Line Requests for Proposals, they should not have to attend those portions of the trial that do not relate to the charges against them.
[8] It is their position that the evidence relating to them with respect to the Transport Canada RFP is less than 20% of the overall evidence to be presented in the case and that requiring they attend the entire trial is unfair to them and would pose a hardship.
[9] In reaching their assessment of the evidence related to the Transport Canada RFP, they both made reference to the much shorter judge alone case that will be following this jury trial for four more accused with respect to the Transport Canada RFP. It was their contention that the shorter trial was an indication of the amount of evidence relating to their alleged role in the bid-rigging and conspiracy to bid-rig charges.
[10] They submitted that the requirement of their presence in court over a four month period would have a significant negative impact on their respective business operations and employment.
[11] David Watts claimed his ability to meet with clients, consultants and business partners – activities that must be done during regular business hours – would have a substantial negative effect on his financial affairs.
[12] Ronald Walker asserted that full-time attendance at the trial would necessitate his resignation from his employment position as a CEO, the loss of which would have a significant impact on his ability to support his family and pay for his daughter’s university education.
[13] These Applicants also claimed that the stress of attending the trial would have a negative impact on their health. Mr. Watts has issues with his heart and is diabetic. He claimed that he has been instructed by his family physician to minimize stress and anxiety and he has accordingly organized his work schedule to work only part-time. Mr. Watts is also responsible for the medical care of his 82-year-old mother whom he is required to drive to medical appointments.
[14] Mr. Walker claimed that the long period of time that has been required to bring this matter to trial (as outlined in the section 11(b) applications) has had a negative impact on his stress levels and psychological well-being.
[15] Both Applicants confirmed they were aware of their obligation to be present during the trial and indicated they were willing to sign a waiver confirming their understanding of the consequences of being absent from parts of the trial. They both agreed to abide by any conditions imposed by the Court.
[16] Mr. Watts suggested that one condition might be to require that for the days in which he is absent from trial, he must review the day’s transcript of proceedings.
[17] Mr. Walker was in agreement with this condition and also agreed that he would retain counsel to attend court on the days he is absent. He indicated he would always be within 30 minutes of the courthouse and available to attend within that time frame should his attendance be required on short notice.
[18] The Applicants were of the opinion that the Crown was in support their application.
Position of the Crown
[19] The Crown first described the complexity of this case. As already set out, it involves 22 counts of bid-rigging and conspiring to bid-rig. These counts are with respect to 10 Requests For Proposals with the Federal Government for the provision of IT services. The offences are indictable and the Applicants are liable upon conviction to a fine or term of imprisonment not exceeding five years or both. The Crown noted that the Transport Canada RFP contains the largest number of accused and is the most complex of all of the RFPs.
[20] The Crown advised the Court that it anticipates calling between 15 and 20 witnesses at trial and that while not all the accused are charged with all counts, many of the Crown’s witnesses will be testifying with respect to multiple RFPs and overlapping issues relevant to all the counts.
[21] Additionally, this case involves extensive documentary evidence. There was disclosure of more than 200,000 document pages and the Crown tendered approximately 2,200 documents at the preliminary hearing. The Crown anticipates that there will be even more documentary evidence tendered at trial and that the documentary evidence may be relevant to multiple counts and multiple accused.
[22] The Crown does not oppose the absence of the Applicant, the Devon Group Ltd., during any portion of the trial provided a waiver is signed by a senior office of the Devon Group Ltd. agreeing that the trial may proceed in the absence of a representative of the organization. This position reflects the wording of s. 650(1) of the Criminal Code where the obligation to be present does not apply to an organization.
[23] With respect to Ronald Walker and David Watts, the Crown indicated a willingness to consent to their absence from pre-trial motions or during legal arguments taking place at trial in the absence of the jury, but only on a motion-by-motion basis as the trial progresses and depending on the following factors:
a. the subject of the legal issues before the Court and its relevance to the individual Applicant;
b. whether absence is requested for that portion of the motion addressing argument or witness testimony (voir dires);
c. upon the Applicants establishing substantial cause for their absence; and
d. upon the Applicants, following consultation with counsel, signing a fully-informed waiver confirming they understand the consequences of the decision to be absent for those portions of the proceedings.
[24] Equally, the Crown does not oppose the absence of the Applicants during the testimony of certain Crown witnesses whose evidence is anticipated will be only in relation to the counts concerning the Canada Border Services Agency and Canada On-Line Requests for Proposals. The Crown agreed it would provide the Court and the Applicants with a list of those potential witnesses at the beginning of the trial.
[25] Notwithstanding the Crown’s position regarding the Applicants’ absence from parts of the trial, the Crown submitted that the absence of the Applicants for any witness testimony should be determined on a day-to-day basis as the trial progresses; otherwise there is a danger that the trial will not proceed in an efficient and orderly manner. The Crown does not want to be put in the position of guaranteeing that either the witness schedule or the trial will proceed in accordance with the anticipated schedule. The Crown was also adamant that the Crown should not be the party obligated to advise the Applicants of any schedule changes or of unforeseen evidence that might be relevant to the Applicants.
[26] The Crown argued that any absences permitted by the Court should be conditional upon the Applicants, after consultation with a lawyer, signing a fully-informed waiver confirming they understand the consequences of their decision to be absent from parts of the trial.
[27] The Crown also submitted that the Applicants should be required to renew their application to be absent from the trial for any witnesses called by the defence and that the Applicants should be required to be present for all other portions of the trial, including but not limited to, the arraignment, jury selection, opening and closing addresses, and charge to the jury.
Preliminary Hearing
[28] A number of accused, including these Applicants, sought permission to be absent from the preliminary hearing. This request was refused by Justice Adler, the preliminary hearing judge. She was concerned that absences might have a negative impact on the scheduling of witness testimony and could cause unnecessary delays. She required all of the self-represented accused to be present each day of the preliminary inquiry but was prepared to consider requests on a day-to-day basis whether an accused could be absent for that day.
[29] These Applicants then waived their right to a preliminary inquiry after an arrangement was reached with the Crown and defence. The agreement provided that, if there were success in obtaining a discharge on any of the counts on an issue common to those accused who had waived their right to a preliminary inquiry (provided the discharge was not reviewed or was upheld on review), the Crown would not proceed on those same counts against those accused who had waived their right to a preliminary inquiry.
[30] The counts set out above against these Applicants were not discharged at the preliminary inquiry, with the result that these Applicants have not had the benefit of hearing the evidence against them as they might otherwise have, had they attended the preliminary inquiry.
The Law
[31] As already set out, section 650(1) of the Criminal Code establishes both a right for each accused to be present during the course of their trial as well as a duty for each accused to be present. Section 650(2)(b) provides the Court with the discretion to permit an accused to not be present upon the imposition of conditions satisfactory to the Court.
[32] The Crown presented a thorough review of the jurisprudence from across Canada at various levels of court and processes. From that review, there are a number of factors and principles that courts have taken into consideration in the exercise of its discretion to absent an accused from attending court:
General principles
• The discretion of the judge should be exercised in only the clearest of circumstances and in a manner in which the rights of all parties in the trial are respected. Society has an interest in minimizing the number and scope of difficulties that may arise throughout the trial process and the judge has a duty to minimize the chances of such difficulties arising (R. c. Rickard, [1995] J.Q. no 1485 (C.S.Q)).
• The judge must resolve how to balance an accused’s desire not to attend part of the trial with the public interest in avoiding unnecessary delays and problems resulting from the accused’s absence (R. v. Schindler, 2003 BCPC 565, at para. 8).
• Each request pursuant to s. 650(2)(b) must be considered on its own merits (R. v. Drabinsky (2008), 2008 40225 (ON SC), 235 C.C.C. (3d) 350 at para. 12 (Ont. S.C.).
• The importance of the presence of the accused to the administration of criminal justice during his or her indictable offence proceedings has long been a basic principle of criminal law. It is well lodged in the very foundation of proper criminal procedure. However, recent reforms aimed at modernizing the system and streamlining its process have clearly been aimed at providing a level of administrative flexibility not previously available (R. v. Clark, 2011 NBQB 6, 226 C.R.R. (2d) 1 at para. 69 – however, this was not a case dealing with the application of s. 650(2)(b) directly).
The nature of the request for non-attendance
• The mere preference of the accused to be absent is not in itself sufficient to obtain permission of the Court to be absent (R. v. Brown, [1997] O.J. No. 6166 at para. 3 (Ont. C.J.))
• The presence of the accused is of such fundamental importance to the fairness of the trial that there ought to be a substantial cause for him/her to be absent (R. v. Brown, at para. 3).
[33] The 2003 decision from British Columbia, R. v. Schindler referenced above, involved seven defendants charged with conspiracy. The application in that case was by several of the accused to be excused from attending the preliminary hearing at times when it was not anticipated that the evidence would concern them directly. The judge considered the application to be reasonable, but then denied it on grounds that the proposed conditions the individual accused were prepared to abide by would be too difficult to implement and insufficient to prevent potential complications and delay to the trial.
[34] In making this finding, the Court in Schindler appeared to rely on the fact that the case was highly complex and involved a number of accused, and as such there was a higher likelihood of complications arising that could result in prejudice to all the accused in addition to creating unreasonable delays.
[35] Nonetheless, in a later application for the same relief at trial, the judge permitted one of the accused to be absent from the trial for work-related reasons under the strict condition that the accused not be further than 90 minutes away from the courthouse and that he maintain close contact with his counsel (R. v. Schindler, 2003 BCPC 566, at para. 3). The accused in this case had legal representation for the entire proceeding.
Analysis
[36] None of the jurisprudence deals with circumstances where the accused are representing themselves. In each of the cases where an accused was granted the right to be absent, that accused had a lawyer who was able to instruct the accused about the risks of their absence as well as maintain a presence in the courtroom to address issues as they arose and was responsible for recalling their client when required.
[37] These Applicants waived their right to a preliminary inquiry after their request to be absent was denied. They benefited from an arrangement with the Crown and the other accused, thus enabling them to continue with their respective employment and business obligations over that period and still benefit from the quashing of any of the charges should that have occurred.
[38] By waiving their right to a preliminary hearing however, they have not had the opportunity to review the Crown’s evidence against them in the formal setting of the preliminary hearing process.
[39] Both Mr. Watts and Mr. Walker have insisted on their right to be tried by a judge and jury even when the Crown offered to provide them an opportunity to re-elect judge alone, with certain conditions regarding the number of trials the Crown was prepared to undertake on these charges.
[40] I am not satisfied at this point in the trial process that either of these Applicants appreciates the complexities of conducting a jury trial, nor the potential adverse effects that their absence in the presence of a jury might have on the perception of their guilt or innocence.
[41] Similarly, should there be unforeseen evidence requiring the attendance of these accused, there would be unnecessary delays of the trial, inconveniencing not only all of those accused who are present and their counsel, but also the members of the jury. Delays of this nature might unnecessarily lengthen an already lengthy trial.
[42] Having said that, I accept that there will be a number of witnesses whose evidence is entirely unrelated to the charges against these Applicants. I am also mindful of the fact that there are often unforeseen delays and legal argument that arise in the absence of the jury on particular legal or evidentiary issues that might not involve these Applicants.
[43] Finally, and perhaps most importantly for these Applicants, I am acutely aware of the financial and personal cost of absenting oneself for a period of 15 weeks from one’s place of business or employment as well as the emotional and physical impact of participating in a long trial, particularly when one is already in ill health. While that alone is not sufficient to permit a person to be absent from one’s trial, the cost is more difficult to rationalize in a trial with multiple accused and multiple counts that have nothing to do with these Applicants.
[44] I am satisfied that the factors as set out have established that a substantial cause does exist to be absent that is more than the mere preference of the Applicants. However, in considering these factors, the only basis on which I am be prepared to consider the absence of these Applicants is if they have retained counsel who have advised them of the risks of being absent and that they sign a fully informed waiver, approved by the Crown and the Court. The Applicants must also have their lawyer present in court for all parts of the trial where they are permitted to be absent.
[45] The periods for which these Applicants may be absent will only be considered when the witness list and trial schedule is in place. I will require additional submissions on that schedule as the trial date approaches. During periods when they are absent, both Applicants must be available to return to the courthouse on 60 minutes’ notice.
[46] To be clear, once there is a valid waiver of the right to be present and each Applicant has instructed his counsel to continue the conduct of the defence in his absence, I am prepared to exercise my discretion and permit the absence of the Applicants for only those parts of the trial where the evidence does not deal with the counts against them. They must be present for the selection of the jury and for all other aspects of this trial except for specific instances that will be determined on a day-by-day basis. It may be necessary to vary conditions in the Applicants’ Recognizance of Bail to address this arrangement and to ensure that, should they fail to attend trial when required, they will be in breach and subject to a warrant of committal.
[47] It is also important to clarify that the Applicants have the right to revoke the waiver should they decide to do so; however, should the waiver be revoked during or prior to the trial, that Applicant’s right to be absent would be immediately rescinded by the Court.
[48] The dates for trial have been scheduled for some time and it is therefore incumbent on these Applicants to ensure that they have legal representation available to attend the trial as scheduled when they are absent.
[49] In making my ruling in this fashion I am satisfied there will be no prejudice to the conduct of the defence. The conditions imposed will enable the Court to conduct an orderly trial. Similarly, the trial will continue to provide to all of the accused a full opportunity to be heard on the issues raised against them.
Madam Justice B. R. Warkentin
Released with publication ban: April 7, 2014 Released for publishing: April 27, 2015
COURT FILE NO.: 09-300-68 DATE: 2014-04-07
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– 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.
Accused
REASONS FOR DECISION ON APPLICATIONS (S. 650 of the Criminal Code of Canada)
Warkentin J.
Released with publication ban: April 7, 2014 Released for publishing: April 27, 2015