R. v. Durward, 2013 ONSC 7722

CITATION : R. v. Durward, 2013 ONSC 7722 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 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 separateissue, unrelated to the s. 11(

b) Charter issues, a separate hearinghas been scheduled to hear argument on this application. Mr.Townsend was advised that, notwithstanding that a date wasscheduled for his application, he was still required to file therequisite application materials in the appropriate timeframe inorder for his application to proceed. [24] Similarly, some of the applicants wish to be excusedfrom attending the entire trial, particularly those portions of thetrial that do not relate to the charges that are specific to them.

Another series of pre-trial dates has been scheduled to hearargument on this issue, provided the applicants who wish totake 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 chargesagainst these applicants should be stayed for delay. The Law [26]

Section 11(

b) of the Canadian Charter of Rights andFreedoms provides that every person charged with a criminaloffence has the right to be tried within a reasonable time. Thefactors to be considered in determining whether an accusedperson’s s. 11(

b) rights have been infringed are set out in anumber of cases; however, the leading case remains theSupreme Court of Canada case of R. v. Morin, (SCC), [1992] 1 S.C.R. 771. [27] The Morin principles were recently summarized byBoswell 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 chargedwith a criminal offence has the right to be tried within a reasonable time. This right serves to protect and promote a number of keyindividual interests. First, it serves to minimize the anxiety and stigma associated with being charged with a criminal offence. Second, itserves to reduce the restrictions on liberty that may result from pre-trial incarceration and/or restrictive bail conditions. Third, itpromotes the hearing of proceedings while evidence is available and fresh.

At the same time, it promotes society's interest in seeing thattrials 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, (SCC), [1998] 3 S.C.R. 45. 11. 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. Thatsaid, 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 ofthe accused and society's interests within the factual context of each individual case, having regard to the particulars and causes of anyimpugned delays.

A purely mathematical calculation of the time between charge and trial is not sufficient - a contextual analysis isnecessary in every case. 12. In Morin, the Supreme Court provided a framework for the requisite judicial balancing. Within that framework, fourfactors 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 facieunexceptional then further inquiry is not necessary. Where the delays do warrant further inquiry, the remaining three factors are to beconsidered; (ii) Any waivers of time periods.

Any time periods unequivocally waived by an accused are to be deducted from the overall period ofdelay; (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; and (iii) Prejudice to the accused. There are two types of prejudice that factor into the 11(

b) analysis. First, inferential prejudice, whicharises from the delay itself. The longer the delay, the more likely it is that a court will infer prejudice. Second, prejudice, or a lackthereof, based on evidence led by the accused or the Crown. [28] In any s. 11(

b) Charter application, the judicialprocess requires an examination of the length of the delay andconducts a balancing of the factors set out in Morin. [29] The burden of proof throughout is on the accused: R.v. Smith, (SCC), [1989] 2 S.C.R. 1120 at 1132-33. [30] In considering the applications for a stay ofproceedings against these five accused, I will address each of thefour factors as set out above. Length of the Delay [31] The applicants have claimed that the delays inbringing this case to trial have been unreasonable, were an

abuse of process that has resulted in prejudice to them and thatthere has been the loss of evidence as a result of the delay. These claims require that I review and classify the reasons fordelay. In doing so, I adopt the following comments of LaskinJ.A. in R. v. Qureshi, (ON CA), [2004] O.J.No. 4711, 190 C.C.C. (3d) 453 (C.A), at para. 13: Inherent time requirements: These requirements recognize that some delay is inevitable. They cover the period required toprepare and process a case assuming the availability of adequate institutional resources. The inherent time requirements of a case areneutral in the s. 11(

b) reasonableness assessment. They do not count against the Crown or the accused. These time requirements includeintake procedures -- for example, bail applications, retention of counsel and disclosure. Greater time is required if the case is complex orif the proceedings include both a preliminary inquiry in the Provincial Court and a trial in the Superior Court. Actions of the accused: Actions of the accused falling short of waiver must nonetheless be taken into account in decidingwhether the delay is unreasonable. Actions of the Crown: Similarly, the Crown's actions may delay the trial.

Even if not blameworthy, the prosecution cannotrely on its own actions to justify a delay that is otherwise unreasonable. Limits on institutional resources: Inadequate resources may cause institutional or systemic delay. This delay begins whenthe parties are ready for trial but the system cannot give them a speedy trial date. The Supreme Court has put forward administrativeguidelines for acceptable institutional delay: eight to ten months in the Provincial Court and six to eight months in the Superior Court.These guidelines do not serve as limitation periods and may yield to other considerations.

Where they are exceeded, however, the overalldelay risks being labelled unreasonable. Other reasons for the delay: In deciding on a s. 11(

b) application, the court must take account of all the reasons for thedelay. This category catches reasons for delay that do not fit into the other four categories. Background [32] This case involves a large, complex prosecution withmultiple accused and massive quantities of disclosure. [33] In September 2005, the Bureau started aninvestigation when a manager from Public Works andGovernment Services Canada (PWGSC) contacted the Bureauwith information concerning an apparent bid-rigging scheme.

The inquiry developed and soon involved other agencies, inparticular, Transport Canada and the Canada Border ServicesAgency. [34] In September, 2006 the Bureau obtained searchwarrants and conducted searches at the premises of all of theaccused who were later named in the February 2009

indictment. Substantial amounts of paper and electronic records were seized. The Bureau assigned two investigators almost exclusively to the file in order to extract the information relevant to their investigation from the seized records. In July 2008, the file was referred to the Public Prosecution Service of Canada with the recommendation that charges of bid-rigging be laid under s. 47 of the Competition Act . [35] The charges were laid on February 17, 2009. All of the charges against the 19 accused were contained in one information. The 19 accused included seven corporations and 12 individuals.

The charges are in relation to ten RFPs issued by PWGSC between June 2005 and October 2005 upon which the Crown alleges bid-rigging and conspiracy to bid-rig. All ten RFPs were for the provision of professional information technology (“IT”) services. Eight of the RFPs were for IT services to the Canada Border Services Agency (“CBSA”) and one was for a department of PWGCS, referred to as the “Canada On-Line RFP”. The tenth RFP was for the provision of IT services to Transport Canada.

The Transport Canada RFP was the largest of the nine RFPs and involves the largest number of accused (17 of the 19 original accused). [36] The information contains one count of bid-rigging under s. 47 of the Competition Act and one count of conspiracy to bid-rig under s. 465(1)(

c) of the Criminal Code for each of the ten RFPs, totalling 20 counts. The original information also contained four additional counts related only to the applicant, Susan Laycock, two of which were for counselling (counts 21 and 22) contrary to s. 464 of the Criminal Code . Counts 23 and 24 were stayed by the Crown during the preliminary inquiry. [37] The entire proceeding from the time the search warrant was executed until the trial date can be divided into to six periods as follows:

a) Pre-Charge Investigation: September 2006 to February 17, 2009

b) First Period: February 17, 2009 to October 3, 2009 (the time between thelaying of the charges and the setting of the preliminary inquiry)

c) Second Period: October 3, 2009 to December 6, 2010 (the time between thesetting of the preliminary inquiry and the beginning of the preliminary inquiry)

d) Third Period: December 6, 2010 to October 25, 2011 (the time needed toproceed with the preliminary inquiry)

e) Fourth Period: October 25, 2011 to November 18, 2011 (the time from thecommittal to the first appearance date in Superior Court)

f) Fifth Period: November 18, 2011 to September 2, 2014 (this period includes thecertiorari applications regarding the findings of the preliminary inquiry judge to theSuperior Court, the Court of Appeal and the leave to appeal to the Supreme Court ofCanada). Pre-Charge Investigation [38] The applicants, particularly Mr. Townsend, havealleged that the period between the search of the premises of theaccused in September 2006 and the laying of charges inFebruary 2009 must be considered in assessing whether their s.11(

b) rights have been infringed. [39] As indicated, during this period the Bureau wasanalyzing the information seized during the searches of theaccused’s premises. Two investigators were assigned full-time tocollect, identify and categorize this information. Until the workof the investigators was completed charges could not be laid. [40] The law is well settled that pre-charge time is notcounted when considering the length of delay in a s. 11(b)application. This principle is clearly set out in the decision of R.v.

Kalanj (1989), (SCC), 48 C.C.C. (3d) 459 atparagraphs 18 and 19: [18] In dealing with s. 11, it must first be recognized that it is limited in its terms to a special group of persons, those"charged with an offence". ... As stated above, s. 7 affords broad protection for liberty and security, while the other sections, particularlythose dealing with legal rights, apply to protect those rights in certain stated circumstances.

Section 11 affords its protection after anaccused is charged with an offence. The specific language of s. 11 should not be ignored and the meaning of the word "charged" shouldnot be twisted in an attempt to extend the operation of the

section into the pre-charge period. The purpose of s. 11(

b) is clear. It isconcerned with the period between the laying of the charge and the conclusion of the trial and it provides that a person charged with anoffence will be promptly dealt with. [19] The length of the pre-information or investigatory period is wholly unpredictable. ... It is for that reason that s. 11limits its operation to the post-information period. Prior to the charge, the rights of the accused are protected by general law and

guaranteed by ss. 7, 8, 9 and 10 of the Charter. [41] In responding to the allegation that the pre-chargedelay should be considered in this case, the Crown referred tothe Supreme Court of Canada case on R. v. L. (W.K.) (1991), (SCC), 64 C.C.C. (3d) 321. I note however, thatwhen this case reached the Supreme Court, the appellant hadabandoned the issue of s. 11(

b) and focussed on s. 11(

d) as itpertained to trial fairness and abuse of process. Nonetheless theSupreme Court of Canada confirmed that pre-charge delay wasnot grounds for a staying of a charge, and said at paragraph 22: [22] Does the Charter now insulate accused persons from prosecution solely on the basis of the time that has passedbetween the commission of the offence and the laying of the charge?

In my view, it does not. [42] In keeping with the principle that pre-charge delay isnot grounds for the staying of a charge, I do not accept theposition of the applicants that the period between the executingof the search warrants and the laying of charges is grounds forgranting a stay of the charges against them pursuant to s. 11(b)of the Charter. [43] In certain circumstances, however, pre-charge delaymay have an influence on the overall determination of whetherthe post-charge delay is unreasonable.

This issue was alsoaddressed by Justice Sopinka in Morin, at paragraph 35 asfollows: [35] As I have indicated, this factor requires the court to examine the period from the charge to the end of the trial. Charge means the date on which an information is sworn or an indictment is preferred (see Kalanj, supra, at p. 1607). Pre-charge delaymay in certain circumstances have an influence on the overall determination as to whether post-charge delay is unreasonable but of itselfit is not counted in determining the length of the delay.

First Period: February 17, 2009 to October 3, 2009 [44] The seven-and-a-half-month period of February 17,2009 through October 3, 2009 is the time period between thelaying of the charges and the setting of the preliminary inquiry

date. The date for the preliminary inquiry was set on October 3, 2009 and the preliminary inquiry was scheduled to commence on December 1, 2010. It is the Crown’s position that this period of time is neutral time in the consideration of the delay factors that I am to consider. [45] During this seven-and-a-half-month period, there were four court appearances: March 17, April 15, June 22 and September 18, 2009. At the first appearance on March 17, 2009 all of the accused were represented by counsel except Mr.

Townsend who has always represented himself and the accused Tipacimowin Technology Inc. which was represented by its agent, Mr. Townsend. [46] During this same period there were also four separate rounds of disclosure. In January 2009, before the charges were laid, counsel for some of the applicants had contacted the Crown requesting disclosure.

The Crown and counsel for the accused began discussing the methods by which disclosure would be carried out so that the first round of disclosure, which contained everything then in the possession of the Crown, occurred (between March 3 and March 6, 2009), much of it provided electronically. There were approximately 197,000 pages of documents in that first round of disclosure. This was followed by a letter from the Crown on March 13, 2009 to counsel for all accused explaining the nature of the disclosure together with a breakdown of the organization of the disclosure. Defence Counsel were then provided a 191-page

summary of the evidence in order to assist them in dealing with the enormous volume of disclosure. [47] Crown counsel was continually mindful of the necessity of proceeding expeditiously and of minimizing delays. To that end, Crown counsel prepared and provided eight indices for the disclosed documents and also offered to prepare a consolidated index for any of the accused who were interested in

obtaining one. The Crown responded to all enquiries from defence counsel about the disclosure and offered technical assistance and training to the accused and their counsel on how to access the electronic disclosure. An example of the Crown’s efforts to assist defence counsel was when they provided a search engine program in Adobe and sent a technician to the lawyer then representing Mr. Walker, Mr.

Watts and The Devon Group Ltd. to assist him in reviewing the electronic disclosure. [48] On March 13, 2009 the Crown discovered an error in the disclosure where certain evidence had been mistakenly categorized as irrelevant.

The Crown immediately informed defence counsel and this evidence was produced in the second round of disclosure in May, 2009. [49] On May 6, 2009 the Crown provided the accused with additional explanations regarding the organization of the disclosure, the location of the indices, the purpose and value of the summaries and elements tables together with suggestions on how the documents might be searched, accessed and managed by the accused.

The Crown also continuously offered the services of the investigators and the technicians from the Bureau to those accused who required tips and assistance in searching the electronic disclosure. [50] The second round of disclosure occurred on May 20, 2009.

This disclosure consisted of the evidence miscategorised in the first round of disclosure, information regarding a guilty plea by one of the alleged co-conspirators and internal Bureau files related to documents that had been created by the Bureau during the course of the investigation. [51] On May 27, 2009 a meeting between the Crown and defence counsel was held to address certain issues about the proceeding and on June 29, 2009 the Crown began disclosing its pre-trial briefs in the form of evidence tables together with an

update of the items that had already been disclosed. [52] Between May 20, 2009 and the third round of disclosure on August 13, 2009, the Crown responded to multiple requests for additional disclosure from defence counsel.

The third round of disclosure included documents that the Crown had assessed as irrelevant, but which defence counsel wanted, together with documents that the Crown considered to be privileged, but for which the Crown waived its privilege. [53] By the third court appearance on June 22, 2009, the issue of the election of the accused was addressed however the accused were not prepared to make an election at that time because they were still reviewing the disclosure.

Some of the accused raised the possibility of a severance of some of the charges at this appearance but the Crown was not willing to consider a severance at that stage. [54] The fourth round of disclosure occurred on September 16, 2009 and consisted of additional documents related to the Crown’s continuing disclosure obligations. Defence counsel then asked the Crown to provide third party disclosure, rather than require them to bring O’Connor applications. [55] At the fourth court appearance on September 18, 2009, the accused asked for a preliminary inquiry. None of the accused was yet ready to make an election.

The Crown indicated that it would consider severing some of the counts but required further consideration and discussion before making its final determination. The case was adjourned to October 3, 2009 for the purpose of continuing these discussions and to set a preliminary inquiry date. Second Period: October 3, 2009 to December 6, 2010 [56] At the fifth court appearance on October 3, 2009, all accused consented to setting the preliminary inquiry date

commencing December 1, 2010. The Crown agreed to accommodate the calling of certain witnesses around some of the defence counsel’s other trial schedules. Counsel for the applicant Ms. Laycock informed the court that he was preparing a Fisher application for the next court appearance. [57] At that same appearance, rather than require the accused to bring O’Connor applications for the third party disclosure, the Crown undertook to obtain disclosure from various agencies, notwithstanding the Crown considered much of it to be irrelevant.

The Crown then proceeded to obtain third party disclosure and has continued to do so. [58] Between November 18, 2009 and June 23, 2010, the lawyers for the applicants, Ms. Durward, Ms. Laycock, Mr. Walker, Mr. Watts and The Devon Group Ltd. withdrew and these applicants began representing themselves. [59] There were a total of six court appearances after the October 3, 2009 appearance and the commencement of the preliminary inquiry in December 2010.

Most of these appearances dealt with updates regarding the third party disclosure, withdrawal of counsel for some of the accused, courtroom accommodation for the preliminary inquiry and accommodations made for those accused representing themselves as to the need for them to attend the preliminary inquiry. [60] The Crown advised the Court that it was prepared to permit defence counsel to appear on behalf of those accused represented by counsel during the preliminary inquiry and those who were representing themselves to appear only when required.

In other words, in an effort to inconvenience the accused as little as possible, the Crown did not require each individual accused to attend the entire preliminary inquiry, but only those parts dealing with counts to which they had been charged.

[61] After the June 23, 2010 court appearance, Mr.

McCann, counsel for Philip McDonald, one of the accused in the information, proposed by letter to all accused and the Crown that those accused not represented by counsel might consider waiving their right to a preliminary inquiry provided that the Crown undertake to discharge all accused charged on any count that was discharged by the preliminary inquiry judge regardless of whether or not that accused had participated in the preliminary inquiry. [62] The Crown immediately agreed in principle and proceeded to work out an agreement that was satisfactory to all accused.

At the next court appearance on September 8, 2010, the applicants Ms. Durward, Mr. Walker, Mr. Watts and The Devon Group Ltd. consented and waived their rights to a preliminary hearing. Ms. Laycock waived her right to a preliminary hearing for Counts 1 through 20, but not for Counts 21 and 22 where she was the sole person charged. Mr. Townsend did not waive his right to a preliminary hearing. Third Period: December 6, 2010 to October 25, 2011 [63] The preliminary inquiry commenced as scheduled on December 6, 2010. The preliminary inquiry was completed on June 10, 2011.

This period included a two-month delay between the completion of the evidence portion of the inquiry and the closing submissions because the judge hearing the inquiry had a health issue. [64] On October 11, 2011 the preliminary inquiry judge rendered her decision orally and provided a 60-page written decision on committal on October 25, 2011. [65] The preliminary inquiry, while long, was shorter than it might have been due to the agreement between the Crown and the accused who waived their rights to a preliminary inquiry.

Additionally, Crown and defence counsel cooperated in the method by which evidence was called and they proceeded,

where possible, with written argument and facta. [66] The preliminary inquiry judge discharged some of the accused on some or all of the counts on which they had been charged. The company Tipacimowin Technology Inc. for whom Mr. Townsend was acting as agent and Mr. Townsend were discharged on two counts that related to one of the CBSA’s RFPs. Mr. Townsend was not discharged on two counts that related to the Transport Canada RFP. Ms. Laycock, the only other of these applicants who participated in the preliminary inquiry, was not discharged.

Fourth Period: October 25, 2011 to November 18, 2011 [67] This was the period of time between the committal and the first appearance in the Superior Court. An indictment was issued on November 18, 2011 in the Ontario Superior Court of Justice consisting of 22 counts. The applicants stand charged on the 22 counts as follows:

a) Susan Laycock – all 22 counts

b) Marina Durward – Counts 1-20

c) Thomas Townsend – Counts 1 and 11

d) Ronald Walker – Counts 1 and 11

e) David Watts – Counts 1 and 11

f) The Devon Group Ltd. – Count 11 [68] The remaining nine accused on the indictment are as follows:

a) Donald Powell – Counts 1-20

b) Spearhead Management Inc. – Counts 11-20

c) TPG Technology Consulting Ltd. – Counts 11-20

d) Philip McDonald – Counts 1-20 e) 1484558 Ontario Inc. (Brainhunter Inc.) – Count 11

f) Barry Dowdall – Counts 1 and 2

g) Perry Henningsen – Counts 1 and 2

h) David Gellneau – Counts 1-4

i) Donna Cona Inc. – Counts 1-4 Fifth Period: November 18, 2011 to the trial date, September 2014 [69] November 18, 2011 was the first appearance in the Superior Court. At this appearance, counsel for four of the accused indicated they would be making an election for a judge alone trial. With the agreement of all of the accused it was determined that formal elections would be made at the next court appearance, scheduled for December 16, 2011.

In the intervening period, the accused were instructed to discuss their respective positions with the Crown. [70] Counsel for the accused, TPG Technology Consulting Ltd. (TPG) informed the court that his client was considering seeking certiorari of the preliminary inquiry judge’s findings on committal. As with the election, it was agreed that the issue of the certiorari application would be discussed further at the December 16, 2011 appearance. [71] On December 16, 2011 the Crown asked each of the accused to put their election on the record.

In addition to three other accused, all of these applicants elected to have a trial with judge and jury. Mr. Townsend, in this application, has resiled from his election, claiming that he did not intend to elect a trial by judge and jury but thought he had no alternative. [72] The four accused who had previously indicated they were seeking a judge alone trial, made that election on December 16, 2011.

The Crown informed the court and counsel for those seeking a judge alone trial that it would be asking the court to decline that election and that a hearing on that issue would be necessary [73] By the December 16, 2011 appearance, the certiorari

application had been commenced by six of the accused, three of whom had elected trial by judge and jury and three of whom were seeking a judge alone trial. None of these applicants were parties to the certiorari application. [74] All of the accused, including these applicants, agreed to delay the trial until after the decision in the certiorari application was rendered. As with his election for a trial by judge and jury, Mr. Townsend in this application has also resiled from his consent to the delay.

He now claims that his response of “the same” after a number of the other accused stated they consented to delay the trial pending the result of the certiorari application was not indicative of his consent. [75] At the next court appearance on January 23, 2012, at the request of counsel for TPG, it was agreed that a trial date should be scheduled immediately rather than wait until the decision on certiorari had been rendered. At that same appearance, the court was informed that an agreement had been reached with the Crown to sever the charges against the four accused who were seeking to have a judge alone trial.

The agreement was that the judge alone trial would not proceed until after the judge and jury trial and that those accused electing to proceed by judge alone had waived their s. 11(

b) Charter rights as part of the agreement. [76] The judge and jury trial was then scheduled to commence on February 2, 2013 with pre-trial motions starting on October 29, 2012. [77] The decision denying the certiorari application was rendered by RSJ Hackland on July 18, 2012. On August 8, 2012, the six applicants who had sought certiorari informed the court that they were appealing the decision of RSJ Hackland and as such the trial and pre-trial dates were vacated. All of the accused consented to vacating the trial dates and a new date was scheduled commencing October 7, 2013 for five months. At this

appearance, Mr. Townsend expressed his desire to re-elect to a judge alone trial. After some discussion, the Crown informed the court that it would consent to a re-election if all accused seeking the jury trial agreed to re-elect to judge alone. The Crown made it clear that it was not prepared to conduct more than two trials. [78] The Court of Appeal rendered its decision, upholding the decision of RSJ Hackland on April 2, 2013.

At the next court appearance on May 14, 2013 one of the certiorari applicants (Spearhead Management Canada Ltd.) informed the court that they were seeking leave to appeal to the Supreme Court of Canada. [79] At this appearance, further discussions occurred between some of these applicants and the Crown about whether they wished to change their election to proceed with a judge alone trial.

When pressed about the length of time it was taking to get to trial, the Crown offered that for those applicants who wished to re-elect to a judge alone trial, the Crown was prepared to proceed with those charges in the fall of 2013. Mr. Townsend and Ms. Laycock refused that offer and indicated that they wanted to be joined in the judge alone trial that was scheduled to proceed after the judge and jury trial. Mr. Watts and Mr. Walker also refused the Crown’s offer and informed the court that they were not prepared to re-elect to judge alone. Ms. Durward informed the court that she intended to bring a

section 11(

b) Charter motion. [80] The trial was then scheduled to commence on April 14, 2014 over the objections of some accused (not these applicants) who thought it was premature due to the anticipated time needed for Spearhead Management Canada Ltd. to hear from the Supreme Court of Canada regarding its leave application. [81] Unfortunately, almost immediately after the April 14,

2014 date had been set it was discovered by the court’s administration that there had not been enough time allotted to hear the trial due to scheduling issues with the trial judge. The parties were canvassed about commencing the trial earlier in March 2014. Counsel for the accused, TPG Technology Consulting Ltd. informed the court that proposed date of March 2014 was not possible due to the leave application to the Supreme Court of Canada by the accused Spearhead Management Canada Ltd. and the time required to deal with pre-trial motions in advance of the trial date.

The trial was then rescheduled to September 2, 2014 for a period of 15 weeks.

Analysis of the Six Periods [82] For ease of reference, I have summarized the six periods in the following chart: Period Date Event Length of time between events Pre Charge Investigation September 16, 2006 - February 17, 2009 Investigative sweep: seizure of and analysis of computers 2.5 years Period #1 February 17, 2009 - October 3, 2009 Period between laying of charges and scheduling preliminary inquiry 7.5 months (OCJ) Period #2 October 3, 2009 - December 6, 2010 Time between the scheduling of, and commencement of the preliminary inquiry 14 months (OCJ) Period #3 December 6, 2010- October 25, 2011 Time required to proceed with the preliminary inquiry 10.75 months (OCJ) Period #4 October 25, 2011 - November 18, 2011 Time between committal and first appearance in Superior Court 3 weeks (SCJ) Period #5 November 18, 2011 - September 2, 2014 Time between first appearance in Superior Court and the trial. 2 years and 9.5 months (SCJ) Pre Charge Investigation: September 16, 2006 - February 17, 2009 [83] I have already determined that the time required for the pre charge investigation is not included as part of the

calculation of delay in the s. 11(

b) analysis. For the reasons set out below, I also find that the pre-charge delay in this proceeding is irrelevant to the overall determination of whether the post-charge delay was unreasonable. Period One: February 17, 2009-October 3, 2009 (the time between the laying of the charges and the setting of the preliminary inquiry) [84] This seven-and-one-half-month period between the laying of charges and the setting of the preliminary inquiry date was reasonable in light of the large amount of disclosure. Counsel for all the accused and Mr.

Townsend, who was the only applicant representing himself during this period, were familiarizing themselves with the disclosure. [85] I do not find the 7.5-month period, which can be characterized as the intake period, to be unreasonable. This is a case that is at the complex end of the spectrum, with multiple accused and hundreds of thousands of pages of documents. Therefore I find that this period is entirely attributable to the inherent time requirements of the case.

Period Two: October 3, 2009-December 6, 2010 (the time between the setting of the preliminary inquiry and the beginning of the preliminary inquiry) [86] I also accept that this period of 14 months was reasonable and part of the inherent time requirements in bringing this case to a preliminary inquiry. I also find that the accused waived their s. 11(

b) Charter rights for this period. On October 3, 2009 none of the accused was ready for a preliminary inquiry. The preliminary inquiry date was scheduled with the consent of all of the accused. The parties’ expectation was that the time between October 3, 2009 and December 6, 2010 would provide the accused with sufficient time to prepare for the preliminary inquiry. [87] During this period the Crown assisted the accused by obtaining third party disclosure without the necessity of requiring the accused to bring O’Connor applications. In this respect, all the parties acted responsibly in the scheduling of the

preliminary inquiry on a realistic date in the future.

While there was some indication that there had been discussions at the various court appearances about the need for appropriate facilities in order to accommodate a preliminary inquiry with this number of accused and the ability to present evidence in a coherent fashion, it was apparent that the court did in fact ensure that it supplied the necessary facilities in a time frame that was reasonable and as such none of the delay is attributable to systemic delays. [88] As such I find that this second period was part of the inherent delay required by all of the parties to prepare for the preliminary inquiry.

Period Three: December 6, 2010-October 25, 2011 (the time needed to proceed with and complete the preliminary inquiry) [89] The preliminary inquiry proceeded as scheduled.

The parties, working together with the Crown ensured that the time required for the preliminary inquiry was minimized by reaching agreement as to when the accused were required to attend and by reaching a deal that permitted some of these applicants to waive their right to a preliminary inquiry, but still receiving the benefits of any discharge that might have applied to them. [90] There was a two-month delay when the preliminary inquiry judge dealt with a personal health problem, but this period did not unduly delay the completion of the preliminary inquiry. [91] I find therefore that with the exception of the two- month period where the preliminary inquiry judge was ill, this period was of the inherent time requirements of the court.

The two-month period is attributable to a systemic delay. Period Four: October 25, 2011-November 18, 2011 (the time from the committal to the first appearance date in Superior Court) [92] This three-week period is neutral. It was part of the inherent time requirements of the case in moving the matter

from the Ontario Court of Justice into the Superior Court of Justice. Period Five: November 18, 2011-September 2, 2014 (date of the commencement of trial) [93] This lengthy time period includes the certiorari application to the Superior Court and the Appeal of that decision to the Court of Appeal, as well as additional delay due to the leave application by one of the accused to the Supreme Court of Canada.

It is this period that requires the most scrutiny because of the length of time this matter has been in the Superior Court of Justice without proceeding to trial. [94] The Crown claims that there is no delay in this period that is attributable to actions of the Crown. [95] I have reviewed the transcript of the appearance on December 16, 2011 and it is clear from that transcript that all of these applicants agreed to wait for the decision on the certiorari application before setting a date for trial. I do not accept the position Mr.

Townsend now asserts, that he did not really consent to this delay when he answered “the same” when asked his position after the other accused indicated that they were consenting. [96] The certiorari application sought to quash all the committals by the preliminary inquiry judge on all the charges of bid rigging and conspiracy to commit bid rigging. Success on the certiorari would have ended the proceedings in this court against all of the accused. As such, the delay of the trial pending the result of the certiorari application was reasonable.

It would not have served any of the accused to proceed to trial and risk being convicted to later find that the charges against the other accused had been quashed. [97] The accused argued in the certiorari application and it is their position in this case against them that the RFPs to which they responded were not calls or requests for bids or tenders

because they did not result in any of the parties receiving any contractual entitlement to perform any services. In dismissing the certiorari application before RSJ Hackland, which was upheld on appeal to the Court of Appeal, the Court found the proper question was whether the parties intended a contract in the sense of creating bidding rights and obligations with respect to the procurement process.

The Court of Appeal agreed and found that there was some evidence on the basis of which a properly-instructed trier of fact could find that the accused had made “bids” in response to “a call or request for bids or tenders” within the meaning of s. 47 of the Competition Act and as such committed the offence of bid-rigging and/or conspiring to bid-rig. [98] All these applicants either expressly or impliedly consented to the additional delay caused by the applicants to the certiorari application when they appealed to the Court of Appeal. Mr.

Peter Mantas, counsel for TPG Technology Consulting Ltd., advised the court on August 8, 2012 that he had contacted all of the self-represented accused by email to enquire if there was any objection to the further delay resulting from the pending appeal to the Court of Appeal. Mr. Mantas stated that while he did not receive responses from some individuals, he had not received any objections to the additional delay.

All of these applicants attended the August 8, 2012 appearance and when provided the opportunity to object by the judge presiding on that date, none did so. [99] These applicants have argued that notwithstanding the time taken by waiting for the decision in the certiorari application and appeal, they were ready to proceed to trial and an earlier trial date should have been provided to them when they asked for one. The issue was dealt with at the appearance on May 14, 2013. [100] On May 14, 2013, the Crown offered all the applicants

the opportunity to have their claims severed and to proceed to a judge alone trial in the fall of 2013 rather than wait for the results of the application for leave to appeal to the Supreme Court of Canada by one of the other accused. For the reasons outlined in paragraph 79 above, all of the applicants refused this offer. [101] The trial then scheduled to commence in April 2014 was delayed until the present date of September 2, 2014 when the court administration realized that insufficient time had been allotted to the April 2014 trial period given the assigned judge’s schedule.

The parties were offered the option of commencing the trial in March 2014 instead or of waiting until the September 2, 2014 date. Mr. Mantas for TPG expressed concern about the difficulty in dealing with all of the required pre-trial motions in advance of a trial scheduled to commence in March and as a result, the trial was scheduled to commence on September 2, 2014. [102] I find that the period from November 14, 2011 until May 14, 2013 was delay attributable to the accused. The applicants consented to this delay and as such for this period they waived their s. 11(

b) Charter rights. [103] The 11-month delay from May 14, 2013 until the initial, but aborted, trial date of April 14, 2014 is an inherent delay. However, the 4.5-month delay occasioned by the rescheduling from April 14, 2014 to September 2, 2014 may be characterized as being a systemic delay. Notwithstanding that some of the accused preferred to wait until September, these applicants did not consent to this further delay.

Summary of Delays [104] The delays in the two courts and my characterization of them is summarized in the chart below: Period Date Length of time between events Characterization of Delay Pre Charge Investigation September 16, 2006 - February 17, 2009 2.5 years No delay Period #1 February 17, 2009 - October 3, 2009 (OCJ) 7.5 months Intake, inherent delay Period #2 October 3, 2009 - December 6, 2010 (OCJ) 14 months Neutral, inherent delay Period #3 December 6, 2010- October 25, 2011 (OCJ) 8.75 months, 2 months Inherent delay Systemic delay Period #4 October 25, 2011 - November 18, 2011 (SCJ) 3 weeks Inherent delay Period #5 November 18, 2011 - April 14, 2014 April 14, 2014 - September 2, 2014 (SCJ) 2 years and 5 months 4.5 months Accused Waiver Systemic delay [105] By my calculations the total time attributable to systemic delays is 6.5 months, which is well within the administrative guidelines for a two-stage (Ontario Court of Justice and Superior Court of Justice) proceeding.

I have found that apart from the delay as a result of the certiorari application and appeal, which is entirely attributable to the accused and to which I have found that these applicants consented, the delays are reasonable for a case of this significant complexity. [106] Mr. Townsend has also asked the court to consider the delay that will result from any of the parties appealing the verdict after trial as part of the systemic delay. There is no basis for this consideration in any s. 11(

b) analysis and therefore I have not considered this as a factor when reaching my decision on the length of delay. [107] Notwithstanding that I have found the delays to be reasonable, there is one other factor that requires

consideration. This is whether or not the applicants have beenprejudiced. Prejudice [108] There are two types of possible prejudice to accusedpersons in the manner in which prejudice is considered. One isinferred prejudice and the other is actual prejudice. These areequally important considerations. [109] Prejudice can be inferred from the length of delayitself. Actual prejudice is established with evidence. In thiscase, the length of time that has passed from the time thecharges were laid in February 2009 until the trial date inSeptember 2014 could infer prejudice to the applicants.

Thistime would be considered excessive in all calculations ofreasonableness in bringing a matter to trial, if the delays wereeither attributed to the Crown or were systemic delays caused asa result of inadequate institutional resources. In this case,however, the delay was caused by the accused themselves inchoosing to wait until the decision on the certiorari application,in anticipation that all of the charges against all accused wouldbe quashed. These applicants, having consented to thatapplication, cannot now demand that their s. 11(

b) Charterrights be invoked on the basis that the delay was unreasonable. [110] I therefore find that the inherent delay in this case didnot prejudice the applicants. [111] With respect to actual prejudice, Justice Cromwell inthe Supreme Court of Canada case of R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 at para. 30, stated: 30 Prejudice in this context is concerned with the three interests of the accused that s. 11(

b) protects: liberty, as regards topre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion thataccompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendantto lead evidence, cross-examine witnesses, or otherwise to raise a defence. [112] None of the applicants were detained or were subjectedto bail restrictions; therefore the issue of liberty is not relevant

in this consideration. [113] All of the applicants recounted the effects that the charges have had on them both personally and professionally and claimed that those effects have been highly prejudicial. In particular, they are barred from bidding on government contracts until these charges have been dealt with and if convicted will have a further period in which they are unable to bid, which has had a significant detrimental effect on their respective financial circumstances. [114] Additionally, Mr. Watts and Mr.

Walker recounted the negative health effects they have suffered as a result of the stress of this process and all the applicants commented that the stigma associated with these proceedings has been high, resulting in lost opportunities and in the case of Ms. Laycock, lost employment. [115] The applicants all have argued that witnesses will likely have had a weakening of their memory. They claim that evidence that may have existed nine years ago may be difficult to come by now and the availability of witnesses will be problematic.

They claim that these factors compromise their ability to make full answer and defence. [116] The applicants, Mr. Watts, Mr. Walker and Mr. Townsend also argued that the charges against them, specifically the charges related to the Transport Canada RFP, should have been severed from the rest of the charges in the indictment.

They argued that had the Crown proceeded in that fashion, their trial, whether by judge and jury or by judge alone, would have been dealt with much earlier and would not have required the time expended by the Crown and all accused in reviewing the voluminous disclosure on all counts and waiting for those charged on the other counts to be ready for trial. [117] Mr. Townsend claimed that he was prejudiced by the actions of the Crown when the Crown laid charges against the

company Tipacimowin Technology Inc. (Tipacimowin), of which he was the agent and against himself in one of the Canada Border Services Agency RFPs that was later quashed at the preliminary inquiry. He has also alleged misfeasance on the part of the Crown and the Bureau in the management of the case against him, citing:

a) that the Bureau released information to the press defaming all of the accused by comparing the charges of bid-rigging to price-fixing. The defamatory publicity limited the company’s opportunities.

b) that after the charges against Tipacimowin and himself were quashed with regard to the CBSA bid, the Bureau has not removed their names from the website in the “Backgrounder” page that mentions Mr. Townsend and Tipacimowin.

c) that Industry Canada has prejudiced Mr. Townsend’s defence by not providing the applicant with their research file.

d) that the investigative sweep triggered a dismantling of Tipacimowin because directors resigned, shareholders relinquished shares, and the corporation lost its aboriginal status.

e) that the Department of Justice, Civil Litigation branch sent a lawyer to gather information at a confidential pre-trial hearing on August 8, 2012. In spite of his request pursuant to the Access to Information Act , the notes were not produced because the Department of Justice claimed confidentiality. Denying Mr. Townsend the right to this information has prejudiced his ability to make a full answer and defence. And,

f) that the failure of the Crown to provide information contained in Form 17 has left him uncertain as to what witnesses might be called and what other evidence there will be against him. Mr. Townsend is also not sure what the actus reus and mens rea of the offence are. [118] I do not accept the positions put forward by the applicants regarding prejudice to them. Any prejudice to their reputations and employability or the availability of obtaining government contracts was caused predominantly by the laying of the charges themselves.

The manner in which the case has proceeded since then has not significantly added to the stigma and loss of business to the applicants. In fact, there have been publication bans for most aspects of these proceedings. [119] The claims that Mr. Watts and Mr. Townsend have

made regarding lost business have not been tied to the length of the time the matter has taken to proceed to trial and are speculative in nature. Similarly, I do not consider the inability to bid on government contracts prejudicial in terms of the balancing on the s. 11 (

b) analyses I am required to do. These losses are as a result of the alleged conduct but they do not preclude the applicants from seeking non-governmental contracts. [120] Regarding the alleged loss of evidence, this is a case that will consist largely of documentary evidence. I accept that all the communications the Crown intends to adduce between the alleged co-conspirators were in writing and these have been disclosed to the applicants.

Therefore, the claim that there has been a loss of evidence due to the passage of time has not been made out. [121] Similarly, the applicants have not established their allegation that there will be fading memories resulting in a violation of their right to make a full answer and defence. [122] Finally, I do not accept that the severing of the Transport Canada RFP charges against Mr. Walker, Mr. Watts and Mr. Townsend would have resulted in their trial proceeding more expeditiously.

The Crown is entitled to prosecute the charges in the manner it deems appropriate having regard to all of the evidence and the interrelationship between the respective accused. Mr. Townsend’s Additional Issues [123] As with the other arguments on prejudice, I do not accept that Mr. Townsend has been prejudiced as a result of the charges against him and the company Tipacimowin under one of the Canada Border Services Agency RFPs, a charge that was later quashed at the preliminary inquiry or that the actions of the Crown and the Bureau amounted to misfeasance.

[124] There is no evidence whatsoever that there was any misfeasance by the Crown or by the Bureau. When the charges relating to the Canada Border Services Agency RFP were quashed at the preliminary inquiry, the judge stated: “However the evidence against Mr. Townsend and Tipacimowin is not sufficient to warrant committal in light of all the evidence.” At no time did the judge suggest that the Crown or the Bureau had acted inappropriately in laying these charges; she simply found the evidence was insufficient to commit on those charges. [125] In his additional complaints, Mr.

Townsend has made a number of other allegations of misconduct as a result of which he claims to have suffered prejudice. I do not accept Mr. Townsend’s position. It appears that Mr. Townsend is seeking to obtain a civil remedy alleging defamation in this proceeding and appears to believe that the Crown has a duty to provide him with legal advice. I note that Mr. Townsend is the only one of these applicants who has represented himself since the outset.

It is his right to do so; however, it would serve him well to obtain some legal advice so that he does not confuse the Crown’s obligations in the administration of justice with his rights as an accused person in a criminal proceeding. [126] Not only are Mr. Townsend’s allegations unfounded, in my review of all of the evidence in this proceeding since the search warrants were carried out in 2006, I find that the Crown and the Bureau have acted in a highly professional and ethical manner.

They have offered to assist the parties to the point of providing their own services to ensure that the accused were able to review and understand the documentary evidence they had accumulated. They then agreed to collect and distribute all third party disclosure requested without requiring O’Connor applications. Finally, the Crown and defence cooperated on the most efficient plan to proceed with the preliminary inquiry, thus enabling all the accused to continue with their respective employment over that period and still benefit from the quashing

of any of the charges. [127] Mr. Townsend has been charged with serious offences. He denies his guilt as is his right and that is the purpose of having a trial on these issues. I accept that the particular issues to be tried may be novel, which is why the certiorari application was of such importance. Conclusion [128] In

summary, I am not persuaded that the applicants’ rights under s. 11(

b) of the Charter have been infringed. The applications are therefore dismissed. ___________________________ Madam Justice B. R. Warkentin Released with publication ban: December 13, 2013 Released for publishing: May 20, 2015 CITATION : R. v. Durward, 2013 ONSC 7722 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