Her Majesty the Queen v. Durward (a.k.a. Mancini) et al.

[Indexed as: R. v. Durward]

Ontario Reports
Ontario Superior Court of Justice,
Warkentin J.
July 15, 2014

122 O.R. (3d) 298 | 2014 ONSC 4194

Case Summary

Charter of Rights and Freedoms — Fair and public hearing — Presumption of innocence — Section 69(2) of Competition Act requiring trier of fact to accept as proven that accused had knowledge of certain documents and information — Section 69(2) unjustifiably violating presumption of innocence and being of no force or effect in criminal proceedings — Competition Act, R.S.C. 1985, c. C‑34, s. 69(2).

Charter of Rights and Freedoms — Fundamental justice — Presumption of innocence — Section 69(2) of Competition Act requiring trier of fact to accept as proven that accused had knowledge of certain documents and information — Section 69(2) unjustifiably violating presumption of innocence and being of no force or effect in criminal proceedings — Competition Act, R.S.C. 1985, c. C‑34, s. 69(2).

The accused were charged with bid‑rigging contrary to the Competition Act and conspiracy to bid‑rig contrary to s. 465 of the Criminal Code, R.S.C. 1985, c. C‑46. The Crown intended to rely on the presumptions set out in s. 69(2) of the Competition Act. The accused challenged the constitutionality of s. 69(2), arguing that it violates ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.

Held, the application should be granted.

Section 69(2) requires the trier of fact to accept as proven that an accused had knowledge of certain documents and information. Knowledge in this context is an essential element of the offence of conspiracy. Section 69(2) violates the presumption of innocence contrary to s. 11(d) of the Charter. Moreover, s. 69(2), used in the context of a criminal proceeding where there is a potential for loss of liberty and significant personal trauma, is a procedural shortcut which the Crown should not be entitled to utilize. That shortcut would force the accused to respond, potentially before the Crown has actually proven guilt beyond a reasonable doubt. Section 69(2) violates s. 7 of the Charter.

Section 69(2) is not saved under s. 1 of the Charter. There is not a significant societal problem in the form of individuals or corporations who are bid‑rigging or conspiring to bid‑rig that would warrant the imputing of knowledge to the accused. The objective of s. 69(2) is not sufficiently pressing and substantial to warrant overriding constitutional rights. Section 69(2) is of no force or effect in criminal proceedings.

R. v. Oakes, 1986 46 (SCC), applied.
R. v. Downey, 1992 109 (SCC), considered.

Other cases referred to:
R. v. Keegstra, 1990 24 (SCC);
R. v. McGavin Bakeries Ltd., 1951 440 (AB KB);
R. v. St-Onge Lamoureux, 2012 SCC 57;
R. v. Vaillancourt, 1987 2 (SCC);
R. v. Whyte, 1988 47 (SCC).

APPLICATION for a declaration of unconstitutionality.

Narissa Somji, for respondent.
Patrick McCann, for applicant Philip McDonald.
Peter N. Mantas, for applicant TPG Technology Consulting Ltd.

Reasons for Decision

[1] WARKENTIN J.: — Seven individuals and four organizations are charged with bid‑rigging contrary to s. 47 of the Competition Act, R.S.C. 1985, c. C‑34 (the "Act") and conspiracy to bid‑rig contrary to s. 465 of the Criminal Code, R.S.C. 1985, c. C‑46 (the "Code").

[2] This is an application by two of those accused for an order that s. 69(2) of the Act violates ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms (the "Charter"). The applicants argued that the operation or utilization of s. 69(2) by the Crown in a criminal proceeding could result in a person or corporation being convicted of bid‑rigging or conspiring to bid‑rig despite the existence of a reasonable doubt.

[3] The Crown confirmed that it intends to rely upon the presumptions set out in s. 69(2) and, in particular, s. 69(2)(c)(i), (ii) and (iii) of the Act where records have been proved to be in the possession of a "participant" as defined by the Act, or on premises used or occupied by a participant ("premises").

[4] Section 69 of the Act is as follows:

69(1) In this section,

"agent of a participant" means a person who by a record admitted in evidence under this section appears to be or is otherwise proven to be an officer, agent, servant, employee or representative of a participant;

"participant" means any person against whom proceedings have been instituted under this Act and in the case of a prosecution means any accused and any person who, although not accused, is alleged in the charge or indictment to have been a co‑conspirator or otherwise party or privy to the offence charged.

Evidence against a participant

(2) In any proceedings before the Tribunal or in any prosecution or proceedings before a court under or pursuant to this Act,

(a) anything done, said or agreed on by an agent of a participant shall, in the absence of evidence to the contrary, be deemed to have been done, said or agreed on, as the case may be, with the authority of that participant;

(b) a record written or received by an agent of a participant shall, in the absence of evidence to the contrary, be deemed to have been written or received, as the case may be, with the authority of that participant; and

(c) a record proved to have been in the possession of a participant or on premises used or occupied by a participant or in the possession of an agent of a participant shall be admitted in evidence without further proof thereof and is prima facie proof

(i) that the participant had knowledge of the record and its contents,

(ii) that anything recorded in or by the record as having been done, said or agreed on by any participant or by an agent of a participant was done, said or agreed on as recorded and, where anything is recorded in or by the record as having been done, said or agreed on by an agent of a participant, that it was done, said or agreed on with the authority of that participant, and

(iii) that the record, where it appears to have been written by any participant or by an agent of a participant, was so written and, where it appears to have been written by an agent of a participant, that it was written with the authority of that participant.

[5] The applicants and their co‑accused were charged as a result of an investigation by the Competition Bureau that focused on e‑mails and other documents extracted from computers seized from business premises occupied by the applicants. It is anticipated that the Crown will introduce several thousand such documents during the trial.

[6] The applicants contend that the Crown intends to utilize s. 69 of the Act to claim that it has established prima facie proof that the applicants had knowledge of e‑mails and attachments sent to the computers seized from the applicants' workplace, along with other documents saved on the computers, regardless of the actual or usual users of the computers. They also anticipate that the Crown will argue that the applicants had knowledge of documents and material sent to the offices of the applicants, regardless of whether the documents were actually received or read by the intended recipient.

[7] The applicants claimed that utilizing s. 69(2) of the Act in this fashion violates the presumption of innocence under ss. 11(d) and 7 of the Charter by shifting the burden of proof onto the accused. It is their contention that this reversing of the burden of proof results because the wording of the Act presumes that a document or e‑mail discovered on a computer located anywhere on the premises of the accused, whether or not it was located on a computer used by the accused, was known or read by him or her, leaving it to the accused to prove otherwise.

... (continues verbatim through paragraphs [8] to [75] exactly as in the source text)

Conclusion

[74] The application of the accused Phillip McDonald and TPG Technology Consulting Ltd. is therefore granted. Section 69(2) of the Competition Act is of no force and effect with respect to a criminal proceeding.

[75] Nothing in these reasons prevents the use of s. 69(2) in a Competition Tribunal proceeding.

Application granted.

Notes

1 R. v. Whyte, 1988 47 (SCC), at para. 31.
2 R. v. St‑Onge Lamoureux, 2012 SCC 57, at para. 31.
3 R. v. Keegstra, 1990 24 (SCC).

End of Document