



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 companys 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
    companys 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 appellants
    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 Corporations 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 appellants 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 wifes name. He and his children used his wifes
    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 appellants probable whereabouts. For example, an employee
    of Spicer Corporation provided the police with the appellants 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 courts 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 Appeals decision is reported at 115 C.C.C. (3d) 355. The Supreme
    Court of Canada in oral reasons dismissed the accuseds 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 ones 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 appellants 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 appellants 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 Corporations main asset. All other agreements respecting
    the use of the companys 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. Spicers 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 appellants 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 appellants 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 Corporations 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 appellants 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 appellants 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
    appellants arrest. The difficulty facing the appellant is leveraging that
    suspicion into a likelihood Steve Spicer could have provided any evidence to
    support the appellants story. In the absence of anything to support that
    theory, I would defer to the trial judges 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 accuseds 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
    appellants 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 Courts earlier
    adoption of the reasons of Otis J.A. in
Delaronde.
In my view, any
    risk of prejudice to the appellants 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 appellants 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 accuseds 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 appellants 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 appellants s. 11(b)
    rights.

[29]

The
    period from August 2007 to April 2012 although lengthy also did not result in
    violation of the appellants 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 appellants 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
    appellants 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
    accuseds
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 appellants 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
    appellants allegation that the evidence of three of the Crown witnesses was
    tainted because they had seen the appellants 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 appellants 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 appellants 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 companys 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 appellants 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
    appellants 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 appellants 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
    appellants 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 appellants 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 appellants
    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 Corporations
    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 judges
    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 Corporations assets as one indication
    of the value of the software.  But for the appellants 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 appellants 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.


