R. v. Durward, 2015 ONSC 1988
COURT FILE NO.: 09-300-68
DATE: 2015/05/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Marina Durward, Susan Laycock, Philip McDonald, Donald Powell, Thomas Townsend, Ronald Walker, The Devon Group Ltd., Spearhead Management Canada Ltd., and TPG Technology Consulting Ltd.
Defendants
Denis Pilon, Valerie Chénard and Narissa Somji, for the Crown
Patrick McCann for the Defendant Philip McDonald, Peter N. Mantas for the Defendant TPG Technology Consulting Ltd., and Leslie Wilbur for the Defendant Ronald Walker
HEARD: March 23, 2015 and via Written Submissions
amended Ruling on THE use of the DEFENCE OF MISTAKE OF FACT
Madam Justice B. R. Warkentin
[1] On March 26, 2015, I granted the Defence motion to have the defence of mistake of fact placed before the jury with respect to whether or not the accused honestly believed the RFPs were calls for bids or tenders.
[2] The parties presented their argument in writing. In reaching my conclusion, I considered the Defence and the Crown facta, as well as the trial evidence. I provided reasons on March 26, 2015; however, because of an error I made regarding the nature of the offence of bid-rigging in s. 47(2) of the Competition Act, R.S.C., 1985, c. C-34, at the request of the parties, I agreed to provide these amended reasons.
[3] The Crown submitted that a mistaken belief with regard to whether the RFPs are calls or request for bids or tenders is a mistake of law, and therefore not a defence to the charges.
[4] In light of the fact that the Ontario Court of Appeal in R. v. Dowdall, 2013 ONCA 196, 2013 CarswellOnt 3600, at paras. 6-7 [Dowdall] (the title of this matter at the conclusion of the preliminary hearing prior to the Crown severing some of the counts) held that whether or not the RFPs are calls for bids or tenders is a question of fact for the trier of fact to determine, the issue of whether the RFPs are calls or request for bids or tenders is properly a question of fact, not law.
[5] In order for the defence to be placed before the jury, it must first pass the “air of reality” test. As indicated by the Supreme Court of Canada in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 330, at para. 51, while a trial judge has a duty to put to the jury any defence for which there is an air of reality, a judge also has a duty not to put before the jury any defences for which there is no air of reality (Cinous, at paras. 50-51).
[6] A defence possesses an air of reality if there is evidence upon which a properly instructed jury, acting reasonably, could acquit the accused on the basis of the defence (Cinous, at para. 2). The evidentiary basis for the defence may arise as a result of the examination of the accused, defence witnesses, or Crown witnesses. It may also arise as a result of the factual circumstances of the case or from any other evidential source on the record. “There is no requirement that the evidence be adduced by the accused” (Cinous, at para. 53).
[7] In applying the air of reality test the judge is to consider the totality of the evidence, without weighing evidence, assessing credibility, making findings of fact, or drawing factual inferences (Cinous, at para. 54).
[8] On the totality of the evidence in this case, it is unnecessary for me to make any factual findings or weigh credibility in order to find that the air of reality test has been satisfied. Many of the Crown’s witnesses were unclear as to the nature of the RFPs in question; whether or not they were calls for bids or tenders or some type of process that resulted in supply arrangements. The RFPs on their face were unclear as to their nature and in at least one of the RFPs, the document specifically stated it was not a tender. This evidence taken together with the evidence of those accused who testified about their understanding that the RFPs were not calls for bids or tenders is sufficient to satisfy the “air of reality” test.
[9] Once the air of reality test has been satisfied, the Crown then has to prove beyond a reasonable doubt that the accused did not hold an honest but mistaken belief that the RFPs were not calls for bids or tenders. The Supreme Court of Canada in R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, wrote, at para. 217, that:
While it creates an evidentiary burden on the accused in the sense that he must raise sufficient evidence to give the defence an air of reality to justify its presentation to the jury, the burden of proving all of the elements of the offence beyond a reasonable doubt rests squarely with the Crown.
[10] The Defence seeks to have the defence of mistake of fact, as to whether or not the RFPs were calls for bid or tenders, added as though it were an element of the offence of bid-rigging under s. 47(2) of the Competition Act. In particular, the Defence seeks to have the jury determine whether or not the defendants honestly believed the RFPs were not calls for bids or tenders, and therefore did not have the necessary mens rea to commit the offence of bid-rigging.
[11] In R. v. Van Deelen, 2005 CanLII 62981, 2005 CarswellOnt 10394, at para. 16 (Ont. S.C.), aff’d 2009 ONCA 53, 185 C.R.R. (2d) 1, the Superior Court defined mistake of fact as:
A state of facts which an accused honestly believes to exist when he did the act which negatives the mens rea required to prove the offence. In order for a mistake of fact to provide a defence to a criminal charge, the mistake of fact must be one involving an innocent intention, rather than one involving another criminal act.
Conclusion
[12] Taking the wording of s. 47(2) in the form it was in 2005 when the offences are alleged to have occurred, together with the Court of Appeal’s direction that the issue of whether or not the RFPs in question are calls for bids or tenders is a question of fact for the trier of fact to determine; my charge to the jury will address the elements of the offence of bid-rigging in this manner:
Were the RFPs in question calls for bids or tenders? If yes;
Did the accused honestly but mistakenly believe that the RFPs in question were not calls for bids or tenders? If no;
Did the accused submit a proposal in response to the calls for bids or tenders? If yes;
Were the bids or tenders arrived at by agreement or arrangement between one or more of the accused and/or other person(s)? If yes;
Was the agreement or arrangement made known to the person calling for or requesting the bids or tenders at or before the time when any bid or tender was submitted by any person who was a party to the agreement or arrangement?
[13] Defence counsel has conceded that, based upon an earlier ruling limiting the Crown on arguments it may make with respect to the nature of the agreement or arrangement element of the offence of bid-rigging, that whether or not the RFPs were calls for bids or tenders is the only route under the defence of mistake of fact that may be argued.
[14] Having found that there is an air of reality as to whether the accused were honestly and reasonably mistaken in their belief that the RFPs were not calls or requests for bids or tenders, the jury will be permitted to consider this defence.
Madam Justice B. R. Warkentin
Released: May 27, 2015
CITATION: R. v. Durward, 2015 ONSC 1988
COURT FILE NO.: 09-300-68
DATE: 2015/05/27
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, Ronald Walker, The Devon Group Ltd., Spearhead Management Canada Ltd., and TPG Technology Consulting Ltd.
Defendants
AMENDED RULING ON THE USE OF THE
DEFENCE OF MISTAKE OF FACT
Warkentin J.
Released: May 27, 2015