On June 27, 2013, Madam Justice B.B. Warkentin of the Ontario Superior Court of Justice held that section 69(2) of the Competition Act violates sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms when applied in criminal proceedings.

Section 69(2) establishes the following presumptions:

  1. actions taken by an agent of a participant in a Competition Act proceeding are deemed to have been done, said or agreed to with the authority of that participant absent evidence to the contrary;
  2. records received or written by an agent of a participant are deemed to have been written or received with the authority of the participant absent evidence to the contrary; and,
  3. a record proven to be 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 is prima facie proof that the participant had knowledge of the record and its contents, and that anything recorded in or by the record as having been done, said or agreed to by the participant or its agent was done, said or agreed to as recorded.

The Crown was seeking to rely on section 69(2) in its prosecution of 7 individuals and 4 organizations for criminal bid rigging contrary to section 47 of the Competition Act and conspiracy to bid rig contrary to section 465 of the Criminal Code.  At the trial, which is scheduled to begin next month, the Crown is expected to rely on evidence comprised of thousands of emails and other documents taken from computers seized from the business offices of the accused.

Two of the accused brought an application challenging the constitutionality of section 69(2) on the grounds that the provision establishes a reverse onus.  As a result of this reversal, an accused may be convicted notwithstanding reasonable doubt of guilt, contrary to the presumption of innocence and the right to life, liberty and security of the person.  The applicants stressed that it was particularly troubling to presume that a person has read and approved everything in his or her email inbox as well as the email inboxes of employees and co-workers, including attachments.

The Crown argued that section 69(2) does not violate the Charter because the presumptions it contains are permissive and they are presumptions of fact, not presumptions that establish an element of a criminal offence.  As the trier of fact must weigh each record submitted and determine what it means with respect to any element of the offence, there is no reversal of the burden of proof.  The Crown further argued that the presumptions in section 69(2) are similar to common law and statutory rules regarding the admissibility of business records and that various circumstantial factors in competition law prosecutions support the trustworthiness of documents submitted under section 69.

In reasons issued July 15, 2014, Justice Warkentin held that section 69(2) establishes evidentiary and legal presumptions which reverse the onus of proof. In reaching this conclusion she agreed with the applicants that section 69(2) is directory, not permissive, and rejected the Crown’s contention that the provision is similar to rules governing the admissibility of business records.  Justice Warkentin found that knowledge is an essential element of the offence of conspiracy.  Accordingly, by requiring the trier of fact to accept that an accused has knowledge of records submitted by the Crown, the provision contravenes the presumption of innocence.  She further held that in the context of a criminal proceeding, where loss of liberty and personal stigma may follow a guilty conviction, section 69(2) violates sections 7 and 11 (d) of the Charter.  Justice Warkentin also agreed with the applicants that there is no serious or pressing societal problem to justify the violations under section 1 of the Charter and, in the alternative, the objective is not proportionate to the jeopardy to an accused of the reverse onus.

Justice Warkentin concluded that section 69(2) is of no force and effect in a criminal proceeding.  She was careful to note, however, that nothing in her decision prevents the use of section 69(2) in civil proceedings before the Competition Tribunal.

Patrick McCann of McCann & Lyttle Associates and Peter Mantas of Fasken Martineau’s Ottawa office represent the two defendants that brought the constitutional challenge.