COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Cisar, 2014 ONCA 151
DATE: 20140228
DOCKET: C55375 & C57565
Hoy A.C.J.O., Rosenberg and Sharpe JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Roman Cisar
Appellant
Roman Cisar, appearing in person
Louis P. Strezos, Duty Counsel
Tracy Kozlowski, for the respondent
Heard: September 10, 2013
On appeal from the conviction entered on February 2, 2012 and the sentence imposed on April 20, 2012 by Justice Colin R. Westman of the Ontario Court of Justice.
Rosenberg J.A.:
[1] The appellant appeals from his conviction and sentence by Westman J. on charges of fraudulently obtaining computer services, fraudulent use of a computer system, theft and possession of stolen goods. The charges refer to “IMAGENATION computer software”. The trial judge sentenced the appellant to 30 months’ imprisonment. For the following reasons, I would dismiss the appeal.
THE FACTS
[2] The charges against the appellant relate to computer software developed by the Spicer Corporation. Steve Spicer was the CEO of Spicer Corporation and at the relevant times owned 70 percent of the company’s stock. The appellant was employed by Spicer Corporation for seven years until July 1996. During this time he was in charge of marketing for the company. While he was at the company, the appellant obtained his MBA and had hoped to obtain a more senior position. In 1995, he was disciplined for taking unscheduled vacation and for improper use of company resources, and he was advised that any future deviation from the company’s policies on vacation would result in a 5 percent pay reduction. In March 1996, the appellant handed in his resignation but gave a long (3-month) notice period. He hoped that the company would try to retain him in a more senior position. The company did not and in July 1996 the appellant left the company. Before doing so, he took with him on a number of discs the source code for the Imagenation computer software.
[3] The appellant eventually went to the Czech Republic where he set up Parallax69 Software International and produced Eroiica 4.2 software. This software, and a successor version Eroiica 4.3, were derived directly from the source code he had taken from Spicer Corporation. The appellant testified and offered a two-fold defence. He claimed that Steve Spicer had given him the source code to assist in promoting a project that came out of the appellant’s MBA studies. The project was to use programmers in the Czech Republic, which would be less expensive than using Canadian programmers, to continue development of Spicer Corporation’s software. Thus, the appellant claimed a colour of right to take and use the source code. His second defence was that the charges all related to the Imagenation software, whereas he had only taken the source code, which was valueless. The trial judge rejected these defences.
[4] The trial judge also rejected the appellant’s submissions that he should have obtained a stay of proceedings because his rights under ss. 11(a), (b) and (d) and 7 of the Charter of Rights and Freedoms were infringed.
[5] The appellant was unrepresented during the trial and on this appeal. However, the appellant was very ably assisted on the appeal by Louis Strezos acting as duty counsel. On the appeal, the appellant again put forward his substantive defences and the Charter arguments. With the assistance of Mr. Strezos, the appellant particularly relied upon the alleged violation of his rights under s. 11(a) of the Charter. I will begin with the Charter arguments.
ANALYSIS
(1) Charter Grounds of Appeal
(i) Introduction
[6] The various Charter grounds largely rest on the delay in first notifying the appellant of the charges against him and then bringing him to trial. Following is a brief chronology of the events leading to the trial. The appellant handed in his resignation in March of 1996. His last day of work was July 24, 1996. In his last few days of work, he trained his replacement, Carola Donsig. She saw that during this time he was downloading something from his computer onto a series of new discs. The appellant admitted at trial that he was copying the source code onto these discs. The appellant left the country and travelled for some time, eventually moving to the Czech Republic. I will deal further with the events in the Czech Republic later. The appellant began selling his version of the software sometime after June 1997. He claimed that by the end of 1999 he had given up on the venture and he put all of his records in storage in the Czech Republic. He returned to Canada in 2000. Although he claimed to have had some kind of business arrangement with Mr. Spicer, the appellant had no contact with Mr. Spicer when he returned. He lived north of Toronto in a residence in his wife’s name. He and his children used his wife’s maiden name and he used out-of-town post office boxes for his mailing address.
[7] Meanwhile, in July 1998, Spicer Corporation began to suspect that the appellant had stolen the source code. The company confirmed this when they obtained a copy of the software that the appellant was selling on the Internet. In August 1998, Spicer Corporation was speaking to civil counsel and trying to find the appellant and stop his distribution of the Eroiica software. In January 1999, Spicer Corporation contacted the police. Police officers met with Crown counsel in April and on April 30, 1999, the information was sworn charging the appellant. A Canada-wide warrant was issued on May 18, 1999, apparently after Mr. Spicer wrote to Crown counsel confirming that Spicer Corporation would cover the expenses incurred by executing the Canada-wide warrant outside the Regional Municipality of Waterloo. The trial judge found that thereafter the investigating officers did nothing to try and locate the appellant even though employees of Spicer Corporation provided information to the police about the appellant’s probable whereabouts. For example, an employee of Spicer Corporation provided the police with the appellant’s telephone number in October 2001 and other information showing that the appellant was living in Kincardine. Although the information was passed to the police, neither the police nor Spicer Corporation seems to have done anything with the information.
[8] In April 2005, the appellant was interviewed by the police as a result of the death of his child. A Spicer employee learned of the death and it seems likely provided the information to the investigating officers. Again nothing more was done by either the police or Spicer Corporation in furtherance of the execution of the warrant.
[9] In late 2005, the appellant travelled to the Czech Republic using his Canadian passport. He returned to Canada without incident. On July 5, 2007, Steve Spicer unexpectedly died. On August 24, 2007, the appellant was finally arrested on the outstanding warrant when he was stopped during a routine traffic stop. On July 1, 2008, Open Text Corporation bought the assets of Spicer Corporation for approximately $12.4 million.
[10] After he was charged and released on bail, the appellant retained counsel. There was a considerable delay before the matter came to trial. Much of the delay was because the appellant was trying to resolve the civil proceedings with Spicer Corporation and Open Text. It was suggested that resolution of the civil proceedings would have affected the criminal proceedings. In December 2009, the appellant dismissed his civil counsel and in early 2010 he dismissed his criminal counsel. While the criminal defence counsel removed himself from the record, he was still assisting the appellant. The criminal trial began on April 26, 2010. On November 1, 2010, in the course of the trial, the appellant filed an application for a stay of proceedings because of breach of his s. 11(b) rights. The trial eventually stretched over approximately 20 days concluding on November 29, 2011. The trial judge delivered his reasons convicting the appellant and dismissing the various Charter motions on February 2, 2012. The trial judge sentenced the appellant on April 20, 2012.
(ii) Section 11(a)
[11] Section 11(a) of the Charter guarantees a person charged with an offence the right “to be informed without unreasonable delay of the specific offence”. The provision thus provides two forms of constitutional protection. The primary protection is notice of the specific offence. Without notice of the specific offence an accused may be deprived of the ability to make full answer and defence. Accused have the right to know with what they are charged so they can make decisions about their defence, assemble evidence and prepare to meet the prosecution case. This element of s. 11(a) is largely codified in s. 581 of the Criminal Code, which sets out the minimum requirements for sufficiency of an information: R. v. Cancor Software Corp. (1990), 74 O.R. (2d) 65 (C.A.) and R. v. Lucas (1983), 57 N.S.R. (2d) 159 (S.C. App. Div.). In the latter case, Jones J.A. referred to this court’s pre-Charter decision in R. v. Toth, [1959] O.R. 137 (C.A.), which described as a “fundamental principle of our law that an indictment must charge an offence in such a manner as clearly to bring home to an accused an accurate knowledge of the offence with which he is charged”. In Cancor, this court also referred to an article by E. Ratushny -- "The Role of the Accused in the Criminal Process" – in W.S. Tarnopolsky & G.A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms: Commentary (Toronto: Carswell, 1982), at 352, which identifies another reason for this s. 11(a) guarantee. It supports the important element of the rule of law that an accused can only be charged with an offence known to law:
A specific accusation presupposes a specific offence in law. It, therefore, provides an opportunity at the outset for the accused to challenge the authority of the officials of the state to subject him to the criminal process. If no offence exists in law, the accusation can be attacked and quashed, thereby terminating the proceeding.
[12] The second right protected by s. 11(a) and the right in issue in this appeal is the right to be informed without unreasonable delay. The content of this right must be considered in the context in which it is found. In my view, like the right to be informed of the specific offence, the object of the protection against unreasonable delay is also primarily to protect the right to make full answer and defence. This understanding of the objective of s. 11(a) is also consistent with the context provided by other parts of s. 11 of the Charter, particularly the related right to trial within a reasonable time in s. 11(b). The extensive case law considering s. 11(b) has identified the rights protected by that provision as (1) the right to security of the person; (2) the right to liberty, and (3) the right to a fair trial. In R. v. Morin, [1992] 1 S.C.R. 771, at p. 786, the court explained how those rights are protected:
The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.
[13] Until an accused has been informed of the charge, it is only the right to a fair trial that is impacted by delay. If accused are not aware of the charge, they are not subject to the anxiety, concern and stigma of exposure to criminal proceedings and their liberty is not impacted.
[14] The Supreme Court of Canada in R. v. Delaronde, [1997] 1 S.C.R. 213, appears to have approved of a form of analysis of s. 11(a) that is similar to s. 11(b) analysis. Delaronde was an appeal from a decision of the Quebec Court of Appeal reported at [1996] R.J.Q. 591. An English translation of the Court of Appeal’s decision is reported at 115 C.C.C. (3d) 355. The Supreme Court of Canada in oral reasons dismissed the accused’s appeal for the reasons of Otis J.A. in the Court of Appeal. Later, Lamer C.J.C. in a short addendum left open the possibility that s. 11(a) may also protect against prejudice to economic interests for which s. 24(1) might provide remedies. As he said at para. 5: “Having charges pending against one can affect decisions one must make in one’s life that are unrelated to the preparation of a defence.” This aspect of s. 11(a) is not an issue in this case, except as a factor the trial judge took into consideration at sentencing.
[15] In her reasons in Delaronde, Otis J.A. held that delay under s. 11(a) should be analyzed using the same factors as under s. 11(b), namely: the length of the delay, waiver of time periods, the reasons for the delay and prejudice to the accused. The findings of fact by the trial judge in this case have simplified the analysis. The delay runs from the date the charge was laid until the appellant was arrested and informed of the charge; that is, from April 30, 1999 to August 24, 2007, over eight years. The trial judge found that while the appellant may have been aware of possible civil proceedings by Spicer Corporation, and may have been taking steps to avoid having to deal with Spicer, he was not aware of the criminal charges until his arrest. The trial judge also found that the delay in informing the appellant of the charges was the responsibility of the authorities. The trial judge also found that there was no waiver of any s. 11(a) time periods by the appellant. The trial judge held that the authorities had caused the delay. As he said, “the bottom line is that the investigation was so inadequate I am not going to hold [the appellant] responsible for it and I do hold the authorities responsible”. This finding is fully supported by the evidence. Given the information provided by Spicer Corporation, even a modest effort by the police would have resulted in the appellant being found and informed of the charges after he returned to Canada in 2000.
[16] The significant issue in this case is whether the appellant was prejudiced by the delay. In my view, prejudice in this respect relates to prejudice to the right to a fair trial. A subsidiary issue is whether there must be actual prejudice or whether prejudice can be inferred. This second issue is important in this case because the trial judge found that there was no actual prejudice. I will briefly consider the question of actual prejudice and then turn to the question of inferred prejudice.
[17] There were two primary sources of prejudice from the delay. The first was the death of Mr. Spicer on July 5, 2007, just over a month before the appellant was arrested. The second was the loss of the appellant’s records from the storage locker in the Czech Republic and other records such as emails between the appellant and Mr. Spicer. I agree with the trial judge that the appellant did not establish any actual prejudice from either source. The appellant claims that with the death of Mr. Spicer and the loss of his records he was unable to confirm his defence of colour of right because his agreement was solely with Mr. Spicer. There was no evidence to support the view that had Mr. Spicer been alive and able to testify he would have confirmed the appellant’s defence. The evidence was overwhelming that Mr. Spicer did not and would not have given the appellant a copy of the source code to take to the Czech Republic. The source code represented Spicer Corporation’s main asset. All other agreements respecting the use of the company’s software were in writing. Yet, according to the appellant he was given a copy of the source code solely on the basis of an oral agreement. The evidence also established why the company would not have employed programmers outside of Canada to work on the source code. In particular, the company would have been concerned that if legal problems arose, it would have difficulty enforcing its rights. There was also considerable evidence of Mr. Spicer’s reaction when he found out about the Eroiica software that made it highly unlikely that he had any agreement with the appellant. Further, an essential element of the appellant’s defence showing he had an agreement with Mr. Spicer was that sometime after he arrived in the Czech Republic he realized he did not have the full source code. He claimed that he contacted Mr. Spicer who sent him the full source code. However, the only evidence is that the Eroiica software was based solely on the July 1996 version of the source code.
[18] Evidence that was fatal to the appellant’s claim of prejudice arises from his own testimony. He admitted that whatever agreement he had with Mr. Spicer fell through in 1998, yet the Eroiica software was still being sold as late as 2008. He claimed that his agreement with Mr. Spicer was that he would have 51 percent of the project and Mr. Spicer would have 49 percent. Yet the appellant admitted that he never sent any of the proceeds to Mr. Spicer.
[19] The appellant claimed that his agreement with Mr. Spicer was to evaluate the viability of a future venture using programmers in the Czech Republic. On his own evidence, there was no agreement with Mr. Spicer that would allow him to sell a version of the software in Europe and keep the majority of the profits. That there was any such agreement was highly unlikely given that almost half of Spicer Corporation’s profits came from the sale of its own Imagenation software in Europe.
[20] Finally, there was simply no evidence that any records ever existed that would have confirmed the appellant’s version of events. The appellant accepted that any of the emails he claimed to have received from Mr. Spicer no longer existed in February 2000, because of the manner in which he dealt with email providers. The delay in informing the appellant of the charges in no way affected his right to defend himself. At its highest, the appellant’s inability to cross-examine Mr. Spicer may have impacted on his claim that the police should have been able to notify him of the charges much earlier. However, the trial judge accepted that the appellant was not responsible for any of the s. 11(a) delay. The problem with that claim was that there was no prejudice to his fair trial rights, not that the state was responsible for the delay.
[21] There are elements of the chronology, particularly the events of October 2001 and May 2005, that are troubling. At these times, Spicer Corporation and the police for unexplained reasons did not follow up on information that would have led to the appellant’s arrest. The difficulty facing the appellant is leveraging that suspicion into a likelihood Steve Spicer could have provided any evidence to support the appellant’s story. In the absence of anything to support that theory, I would defer to the trial judge’s conclusion that the delay did not prejudice the appellant.
[22] Since there was no actual prejudice to the appellant, the appellant could succeed on his application under s. 11(a) only if it is open to the court to infer prejudice. In considering unreasonable delay under s. 11(b), the court will infer prejudice from a lengthy delay in bringing an accused to trial. Inferred prejudice primarily arises from the impact of delay on the accused’s security and liberty interests. In Delaronde, Otis J.A. appeared to find that only actual prejudice is relevant under s. 11(a). As she stated in the final two paragraphs of her reasons:
Like the CIP Inc. case but for different reasons, the right to a fair trial constitutes the sole basis of prejudice alleged by the respondent. No evidence going to establish "an actual impairment of its ability to make full answer and defence" was called by the respondent (R. v. CIP Inc., supra, p. 863). Although the issue of prejudice was at the centre of the hearing at first instance, the respondent chose not to call any evidence in this regard and the whole of the evidence called by the parties does not permit one to find any impairment of the right to a fair trial.
As a result of the preceding, although the delay in the case at bar was much longer that it should have been, I consider that the respondent has not shown that the protection of his interests has been affected because the record does not indicate any unfavourable effect on his right to a fair trial. Given the absence of evidence of prejudice by the respondent, the public interest in trying an accused must take precedence over the accused's interest in obtaining a stay of the proceedings based on the mere passage of time. In addition, I consider that there has not been a violation of the respondent's rights protected by s. 11(a) and as a result, it would be appropriate to grant the appeal and to overturn the judgment ordering the stay of the proceedings.
[23] Justice Otis also referred with approval to the decision of MacDonnell Prov. Div. J. in R. v. 741290 Ontario Inc. (1991), 2 O.R. (3d) 336, at p. 353:
The most compelling argument which has been mounted for a presumption of prejudice has been with respect to the effects of delay on security of the person. Once concern about that factor is nullified, as it is when dealing with a corporation, the greatest part of the basis for a presumption of prejudice collapses.
[24] The appellant, however, relies upon R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, which he submits establishes that prejudice to fair trial rights may be presumed or inferred from delay. I agree that the risk of prejudice to fair trial rights can be inferred from lengthy delay. That is, there is no burden on the accused to prove actual prejudice. This seems clear from para. 37 of Cromwell J.’s reasons:
It is difficult to assess the risk of prejudice to the appellant’s ability to make full answer and defence, but it is also important to bear in mind that the risk arises from delay to which the appellant made virtually no contribution. Missing from the analysis of the majority of the Court of Appeal, in my respectful view, is an adequate appreciation of the length of the delay in getting this relatively straightforward case to trial. As noted already, prejudice may be inferred from the length of the delay.
[25] In Godin, at para. 36, Cromwell J. also noted that it was possible to identify a risk of prejudice because of the issues in that case: charges of sexual assault, unlawful confinement and threatening where credibility was an issue. He agreed with the reasons of the dissenting judge in this court “that the extra passage of time made it more likely that the ability of the appellant to cross-examine effectively had been diminished”.
[26] Thus, Godin was a case where there was actual risk of prejudice to fair trial rights and where prejudice could be inferred. However, there is nothing in Godin which undermines earlier decisions of the Supreme Court of Canada and especially Morin, which in my view hold that it is open to the prosecution to establish there is no prejudice to rights protected by s. 11(b) including fair trial rights. As Sopinka J. said for the majority at pp. 801-03:
Accordingly, in an individual case, prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn. In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined.
…
Apart, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding. For example, the accused may rely on evidence tending to show prejudice to his or her liberty interest as a result of pre-trial incarceration or restrictive bail conditions. Prejudice to the accused's security interest can be shown by evidence of the ongoing stress or damage to reputation as a result of overlong exposure to "the vexations and vicissitudes of a pending criminal accusation", to use the words adopted by Lamer J. in Mills, supra, at p. 538. The fact that the accused sought an early trial date will also be relevant. Evidence may also be adduced to show that delay has prejudiced the accused's ability to make full answer and defence.
Conversely, the prosecution may establish by evidence that the accused is in the majority group who do not want an early trial and that the delay benefited rather than prejudiced the accused. Conduct of the accused falling short of waiver may be relied upon to negative prejudice. [Emphasis added.]
[27] If it is true, for s. 11(b), that inferred prejudice can be rebutted, it must also be true for s. 11(a), especially in light of the Supreme Court’s earlier adoption of the reasons of Otis J.A. in Delaronde. In my view, any risk of prejudice to the appellant’s fair trial rights from delay that might have been inferred from the very lengthy delay has been rebutted. This is not the kind of case where issues of credibility or the ability to cross-examine could be inferred simply from the delay. In my view, the appellant did not show a violation of his s. 11(a) rights.
(iii) Section 11(b)
[28] In my view, analysis of the violation of the appellant’s rights under s. 11(b) requires consideration of two time periods. The s. 11(b) time runs from the date the charge was laid in April 1999 to the end of the trial in April 2012. The first period to consider is from April 1999 to the arrest in August 2007. While s. 11(b) protects an accused’s liberty, security of the person and fair trial rights, it is only the fair trial rights that are implicated during this first period. Since the accused did not know of the charges, the usual concerns such as stress or damage to reputation or interference with liberty had no application. I have already considered the appellant’s fair trial rights under the s. 11(a) analysis. Since none of the rights which s. 11(b) is designed to protect were implicated during this first period, this first very lengthy period of time did not result in any violation of the appellant’s s. 11(b) rights.
[29] The period from August 2007 to April 2012 although lengthy also did not result in violation of the appellant’s rights. There was some initial delay due to disclosure requirements. However, by May 2008, the initial disclosure issues had been resolved and the matter was ready for a judicial pre-trial. From that time until April 2010 virtually all of the delay was caused by the appellant seeking adjournments while he attempted to resolve concurrent civil proceedings. The appellant expressly waived his s. 11(b) rights from December 16, 2008 to September 28, 2009. While the appellant no longer had counsel, the record shows that the appellant was still being assisted by his former counsel. On September 28, 2009, the appellant requested a great deal more disclosure. Most of this disclosure was records held by third parties, namely Spicer Corporation and Open Text. Thus, there was further delay when the appellant brought an application for third-party production of records. In April 2010, some further disclosure was provided by the Crown from the police, but this did not delay the proceedings. The trial began on April 26, 2010 and continued on April 27, 28 and May 17-20. It was still not completed and the trial was adjourned to November and December 2010. The appellant rejected earlier trial dates in August. Attempts by the Crown to find other earlier dates to continue the trial were frustrated because the appellant, who was unrepresented, was attempting to retain counsel.
[30] Given this chronology, the most important factors in resolving this aspect of the s. 11(b) issue are the appellant’s waiver of his s. 11(b) rights and the actions of the accused in explaining the delay. In my view, the appellant has failed to establish that his s. 11(b) rights were infringed. The delay from when the charges were laid until the sentencing is extraordinary, but is explained. As I have said, the first period of delay did not prejudice any of the rights that s. 11(b) is designed to protect. The second period is explained by the appellant’s express waiver of time period and his own actions. Once the appellant became aware of the charges, his conduct shows that he was not seeking an early criminal trial. I would not give effect to this ground of appeal.
(iv) The Delay in Bringing the s. 11(b) Application
[31] The appellant also argues that the trial judge erred in the manner in which he conducted the s. 11(a) and (b) motions. Ordinarily an application for a stay of proceedings for violation of s. 11(b) is dealt with prior to the trial commencing. In this case, the trial began in April 2010. The appellant filed his application for a stay of proceedings for breach of his s. 11(b) rights on November 1, 2010. Prior to this time, there was sporadic mention of delay, the trial judge raising the issue on several occasions with Crown counsel.
[32] In my view, the appellant was not prejudiced by the manner in which the delay motions were conducted. While a s. 11(b) motion will ordinarily be dealt with as a pre-trial motion, the context is important. First, this is not a case where the trial judge failed to raise an obvious Charter issue where the accused is unrepresented. The trial judge did raise the delay issue and sought submissions from the parties. In the end, the court dealt with the s. 11(b) motion. Second, there are circumstances where allegations of infringement to an accused’s Charter rights are more properly dealt with at the conclusion of the trial. Justice Doherty made this clear in R. v. Bero (2000), 151 C.C.C. (3d) 545 (Ont. C.A.), a case involving an application for a stay of proceedings based on lost evidence. As he said at para. 18:
The trial judge should not have ruled on the motion at the outset of the trial. This Court has repeatedly indicated that except where the appropriateness of a stay is manifest at the outset of proceedings, a trial judge should reserve on motions such as the motion brought in this case until after the evidence has been heard. The trial judge can more effectively assess issues such as the degree of prejudice caused to an accused by the destruction of evidence at the end of the trial: R. v. B.(D.J.) (1993), 16 C.R.R. (2d) 381 at 382 (Ont. C.A.); R. v. A.(S.) (1992), 60 O.A.C. 324 at 325 (C.A.). The approach favoured by this Court was approved in R. v. La (1997), 116 C.C.C. (3d) 97 at 107-108 (S.C.C.). [Emphasis added]
[33] Whether a stay was appropriate in this case, especially as a result of an alleged violation of s. 11(a) turned on prejudice to the appellant’s fair trial rights. That issue could best be determined at the conclusion of the case. This was an unusual case where despite the very lengthy delay the appropriateness of a stay was not manifest at the outset of the proceedings.
(v) Violations of ss. 7 and 11(d) of the Charter
[34] The arguments under ss. 7 and 11(d) of the Charter were based on the appellant’s allegation that the evidence of three of the Crown witnesses was tainted because they had seen the appellant’s statement of defence in the civil case and because they had a motive to fabricate based on their association with Spicer Corporation and Open Text. There is no merit to these submissions. There was no evidence that the evidence of these witnesses was tainted. There was no mystery to the appellant’s defence. It had been laid out in a statement he gave to the police following his arrest before the defence in the civil case was served and filed. The evidence of the three witnesses about whom the appellant complained was confirmed by the agreed statement of facts and other witnesses whose evidence could not have been tainted. It was nothing but bald speculation that the witnesses had a motive to falsely implicate the appellant.
[35] The appellant seeks to rely on the fact that a relatively small amount of the purchase price, $250,000 on a $12.4 million sale, was held back by Open Text pending resolution of the civil case with the appellant. There was nothing to show that the appellant’s criminal case had any impact at all on the transaction with Open Text or the financial interests of the three Crown witnesses. As Crown counsel points out in her submissions, any costs that might have been incurred were those of Spicer Corporation and would be covered by the hold back.
[36] The appellant also claimed that the company’s civil counsel had somehow interfered with the criminal case by interfering with or counselling witnesses. There was no evidence to support this allegation.
[37] I would not give effect to the appellant’s arguments under ss. 7 and 11(d) of the Charter.
(2) Value of the of the source code
[38] The appellant submits that the copy of the source code had no value and therefore he committed no offences. He also points out that the charges refer to the “IMAGENATION computer software”, which he says is quite different from the source code. There is no merit to this ground of appeal. The evidence was overwhelming that the source code had a great deal of value. While it was being continuously changed at Spicer Corporation, the copy that the appellant stole in July 1996 had value. That the appellant was able to use it to produce his own software, which he sold on the Internet, is some evidence of its value.
[39] It was an admitted fact that: “The Eroiica 4.2 software program was derived directly from the source code of the Imagenation software program.” The appellant’s argument turns on the misapprehension that because only the Imagenation software was actually sold to users, it alone had value. The Crown did not have to put an exact value on the source code in order to obtain convictions. For the theft charge, for example, it was sufficient that the source code was worth more than $5,000. The Crown met this burden.
[40] I am also satisfied that the wording of the information did not prejudice the appellant or mean that the offences were not made out. The appellant’s argument is that because the information refers to the Imagenation computer software and he only stole and used the source code that was used to produce the software sold to the public, no offences were made out. The charge that makes the appellant’s case clearest is the theft charge: that the appellant on or about July 22, 1996 “did steal the IMAGENATION computer software, the property of Spicer Corporation, of a value exceeding five thousand dollars, contrary to Section 334(a) of the Criminal Code of Canada”.
[41] There are two answers to this submission. First, on the evidence, the description “IMAGENATION computer software” was broad enough to include the source code, which was simply a version of the software used to compile the version sold to the public. It was simply the software in a different language.
[42] Second, the appellant’s argument is really one of notice. The charges, including the theft charge gave the appellant sufficient notice of the offences with which he was charged so that he could defend himself. Section 583(g) of the Criminal Code provides that an information is not insufficient by reason only that “it does not name or describe with precision any person, place or thing”.
[43] I would not give effect to these grounds of appeal.
(3) The Sentence Appeal
[44] The trial judge imposed a sentence of 30 months’ imprisonment. One of the most important issues in the sentencing was the harm caused by the appellant’s conduct in stealing the source code and then using it to sell his own version of the software that had been developed at great cost by Spicer Corporation. The trial judge concluded that the evidence did not permit him to put a value on the harm caused to the company. He accepted that the source code had a value of $12 million because that is what Open Text paid for Spicer Corporation’s assets.
[45] The trial judge also took into account the delay in proceeding with the charges. Even though he did not find a violation of s. 11(a) that would lead to a stay of proceedings, he considered that the appellant was entitled to some reduction in the sentence because of the delay, in accordance with the decision of the Supreme Court of Canada in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, and Lamer C.J.C.’s addendum in Delaronde. The trial judge stated that he would have imposed 33 months’ imprisonment but that the delay should result in a reduction to 30 months.
[46] Other factors that the trial judge took into account were that the offences were not particularly sophisticated and that the appellant operated in the open, selling his version of the software on the Internet.
[47] I have not been persuaded that the sentence imposed is unfit or that there is a basis for interfering with the sentence on the basis of any error in principle. The reduction in sentence due to delay is a matter within the trial judge’s discretion. The trial judge recognized that valuing the damage done by the appellant was difficult. It was open to him to take into account the $12 million that Open Text paid for Spicer Corporation’s assets as one indication of the value of the software. But for the appellant’s fraud, which impacted the value of the software, Open Text may well have paid significantly more and there was other evidence adduced at trial that could have been used to set an even higher value. For example, some of the evidence from the Spicer Corporation employees suggested that the company had lost revenue of as much as $28 million because of the appellant’s sale of his version of the software. This was a serious and massive fraud, resulting in considerable damage to a company, its owners and employees.
[48] Accordingly, while I would grant leave to appeal the sentence I would dismiss the appeal.
Released: February 28, 2014
“M.R.” “M. Rosenberg J.A.”
“I agree Alexandra Hoy A.C.J.O.”
“I agree Robert J. Sharpe J.A.”