R. v. ACS Public Sector Solutions Inc., (2007) 434 A.R. 103 (PC)

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: November 13, 2007
• Citations: (2007), 434 A.R. 103 (PC);2007 ABPC 315

R. v. ACS Public Sector Solutions Inc. (2007), 434 A.R. 103 (PC)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. DE.012

Her Majesty the Queen v. ACS Public Sector Solutions Inc. (071073167P1; 2007 ABPC 315)

Indexed As: R. v. ACS Public Sector Solutions Inc.

Alberta Provincial Court

Allen, P.C.J.

November 13, 2007.

Summary:

ACS Public Sector Solutions Inc. (ACS) provided photo radar speed enforcement services under a contract with the Edmonton Police Service. Bell was a traffic officer who became the key player in recommending that the city should renew ACS's contract without the need for a tendering process. Subsequently, ACS was charged with being a party to a public officer's breach of trust, contrary to ss. 21 and 122 of the Criminal Code, and with two counts of unlawfully offering a benefit to Bell, contrary to s. 121(1)(b). Count one related to hockey tickets and count two related to an alleged offer of post-retirement employment. At the preliminary inquiry, ACS objected to the admissibility of certain statements, including (1) a statement made by Bell to Murphy, an ACS employee with whom Bell was romantically involved, and (2) statements made by MacPherson, ACS's Canadian director, to Bell.

The Alberta Provincial Court, in a decision reported at 434 A.R. 91, held that the statement made by Bell to Murphy was inadmissible and the statements made by MacPherson to Bell were admissible. The Crown conceded that ACS had to be discharged regarding the alleged offer of post-retirement employment. The preliminary inquiry proceeded regarding the remaining two counts.

The Alberta Provincial Court held that ACS could not be committed for trial on either count.

Company Law - Topic 9704

Actions against corporations and directors - General - Liability of company - Identification theory - ACS Public Sector Solutions Inc. (ACS) provided photo radar speed enforcement services under a contract with the Edmonton Police Service - Bell was a traffic officer who became the key player in recommending that the city should renew ACS's contract without the need for a tendering process - Subsequently, ACS was charged with being a party to a public officer's breach of trust, contrary to ss. 21 and 122 of the Criminal Code, and with two counts of unlawfully offering a benefit to Bell, contrary to s. 121(1)(b) - Count one related to hockey tickets provided by, among others, MacPherson, ACS's Canadian director, and count two related to an alleged offer of post-retirement employment made to Bell by MacPherson - The Crown asserted that MacPherson was the operating mind of ACS and that his actions made ACS liable for the offences - On a preliminary inquiry, the Alberta Provincial Court held that ACS could not be committed for trial - Because the offences predated amendments to the Code (s. 22.2) under which, if applicable, the Crown might prove that ACS was a party to the offences - Thus, any liability for ACS had to be founded on common law principles, including the identification theory - The underlying issue was what degree of responsibility MacPherson had regarding the proposed contract - The important function to be considered was whether MacPherson had been delegated the executive authority to design and supervise the implementation of the contract, rather than simply to implement the contract - The evidence, which was largely circumstantial, was insufficient to support such an inference - Therefore, the Crown had failed to establish the primary facts on which MacPherson's misconduct could be reasonably attributed to ACS - See paragraphs 144 to 166.

Criminal Law - Topic 403

Offences against the administration of law and justice - Corruption of officials - Official - What constitutes - ACS Public Sector Solutions Inc. (ACS) provided photo radar speed enforcement services under a contract with the Edmonton Police Service - Bell was a traffic officer who became the key player in recommending that the city should renew ACS's contract without the need for a tendering process - Subsequently, ACS was charged with, inter alia, unlawfully offering a benefit (Edmonton Oiler hockey tickets) to Bell, contrary to s. 121(1)(b) - At issue were hockey tickets given to Bell by MacPherson, ACS's Canadian director - On a preliminary inquiry, the Alberta Provincial Court held that ACS could not be committed for trial - MacPherson was not a close personal friend, the face value of the tickets was in excess of $100 and the evidence showed that, although Bell had paid for one ticket, MacPherson did not expect payment - The tickets were reasonably capable of supporting an inference that a benefit was offered to Bell by MacPherson - Further, one of the tickets was offered while Bell was in the process of making recommendations regarding the contract renewal - The mens rea was reasonably met regarding that ticket - However, s. 121(1)(b) did not apply because the city of Edmonton was not a government (federal or provincial) described in that section - Nor was Bell a government official - Bell was clearly a municipal employee - No reasonable inference could be drawn that the city, in entering into a photo enforcement contract, was effectively under the province's control - See paragraphs 105 to 143.

Criminal Law - Topic 408

Offences against the administration of law and justice - Corruption of officials - Conferring of benefits - ACS Public Sector Solutions Inc. (ACS) provided photo radar speed enforcement services under a contract with the Edmonton Police Service - Bell was a traffic officer who became the key player in recommending that the city should renew ACS's contract without the need for a tendering process - Subsequently, ACS was charged with, inter alia, unlawfully offering a benefit (Edmonton Oiler hockey tickets) to Bell, contrary to s. 121(1)(b) - At issue were hockey tickets given to Bell by two ACS employees, Murphy and McBride - Murphy was a friend of Bell's and later became romantically involved with him - McBride was a close personal friend - Bell reciprocated by providing each with tickets or meals - The Alberta Provincial Court held that these hockey tickets did not constitute a "benefit" within the meaning of s. 121(1)(b) - The only reasonable inference was that Bell was provided with the tickets because of his close personal relationship with Murphy and McBride - Further, an exchange of benefits took place - See paragraphs 107 to 114.

Criminal Law - Topic 408

Offences against the administration of law and justice - Corruption of officials - Conferring of benefits - [See Criminal Law - Topic 403 ].

Criminal Law - Topic 414

Offences against the administration of law and justice - Corruption of officials - Breach of trust - What constitutes - ACS Public Sector Solutions Inc. (ACS) provided photo radar speed enforcement services under a contract with the Edmonton Police Service - Bell was a traffic officer who became the key player in recommending that the city should renew ACS's contract without a tendering process - Subsequently, ACS was charged with, inter alia, being a party to a public officer's breach of trust, contrary to ss. 21 and 122 of the Criminal Code - The alleged breach of trust related to Bell's statement in a document he prepared and presented to the city that "Administration supports a sole source contract approach for this program" - The Crown relied on evidence of hockey tickets given to Bell and an alleged offer of post-retirement employment for its theory that ACS abetted Bell in making the allegedly false statement - On a preliminary inquiry, the Alberta Provincial Court held that ACS could not be committed for trial - The evidence did not establish, even on a reasonable inference basis, that the procedure Bell adopted represented a serious and marked departure from the standards expected of a person in his position of trust - Further, the job offer had too many conditions to qualify as genuine and it was purely speculative to conclude that the hockey tickets provided encouragement - In any event, regarding mens rea, nothing indicated that anyone at ACS knew that Bell was making recommendations that the administration supported sole sourcing, intended Bell to make misrepresentations or assisted or encouraged him to do so - See paragraphs 29 to 104.

Criminal Law - Topic 2742

Attempts, conspiracies, accessories and parties - Parties to offences - Necessary intention or knowledge - [See Criminal Law - Topic 414 ].

Criminal Law - Topic 2746

Attempts, conspiracies, accessories and parties - Parties to offences - What constitutes abetting - [See Criminal Law - Topic 414 ].

Cases Noticed:

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 8].

R. v. Arcuri (G.), [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126; 157 C.C.C.(3d) 21, refd to. [para. 8].

Carswell v. Powell Duffryn Associated Collieries Ltd., [1940] A.C. 152 (H.L.), refd to. [para. 13].

R. v. Munoz (L.) [2006] O.T.C. 112; 205 C.C.C.(3d) 70 (Sup. Ct.), refd to. [para. 13].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 13].

R. v. Boulanger (D.), [2006] 2 S.C.R. 49; 350 N.R. 326, appld. [para. 30].

R. v. Greyeyes (E.R.), [1997] 2 S.C.R. 825; 214 N.R. 43; 152 Sask.R. 294; 140 W.A.C. 294; 116 C.C.C.(3d) 334, refd to. [para. 84].

R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881; 27 N.R. 153; 47 C.C.C.(2d) 93, refd to. [para. 85].

R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161; 99 C.C.C.(3d) 193, refd to. [para. 94].

R. v. Roach (R.W.) (2004), 192 C.C.C.(3d) 557 (Ont. C.A.), refd to. [para. 95].

R. v. Helsdon (J.) (2007), 220 O.A.C. 302; 216 C.C.C.(3d) 1 (C.A.), refd to. [para. 96].

R. v. Curran (1977), 7 A.R. 295; 38 C.C.C.(2d) 151 (C.A.), leave to appeal refused (1978), 20 N.R. 180; 8 A.R. 449; 38 C.C.C.(2d) 151 (S.C.C.), refd to. [para. 97].

R. v. Hoggan, [1966] 3 C.C.C. 1 (Alta. C.A.), refd to. [para. 99].

R. v. Maciel (R.) (2007), 222 O.A.C. 174; 219 C.C.C.(3d) 516 (C.A.), refd to. [para. 101].

R. v. Greenwood and Tsinonis (1991), 51 O.A.C. 133; 8 C.R.(4th) 235 (C.A.), refd to. [para. 109].

R. v. Hinchey (M.F.) and Hinchey (B.A.), [1996] 3 S.C.R. 1128; 205 N.R. 161; 147 Nfld. & P.E.I.R. 1; 459 A.P.R. 1, appld. [para. 110].

R. v. Pilarinos (D.) et al., [2002] B.C.T.C. 1267; 167 C.C.C.(3d) 97 (S.C.), refd to. [para. 112].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181; 34 C.C.C.(2d) 18, refd to. [para. 118].

R. v. Verma (P.) (1996), 96 O.A.C. 63; 112 C.C.C.(3d) 155 (C.A.), refd to. [para. 124].

Yellow Cab Ltd. v. Board of Industrial Relations (Alta.) et al., [1980] 2 S.C.R. 761; 33 N.R. 585; 24 A.R. 275, refd to. [para. 124].

Mattabi Mines Ltd. v. Ontario (Minister of Revenue), [1988] 2 S.C.R. 175; 87 N.R. 300; 29 O.A.C. 268, refd to. [para. 125].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81; 95 C.C.C.(3d) 481, refd to. [para. 125].

R. v. Vandenbussche (1979), 50 C.C.C.(2d) 15 (Ont. Prov. Ct.), refd to. [para. 131].

R. v. Achtem (1979), 19 A.R. 338; 52 C.C.C.(2d) 240 (C.A.), leave to appeal refused (1979), 31 N.R. 178; 20 A.R. 88 (S.C.C.), dist. [para. 132].

Medicine Hat (City) v. Canada (1985), 59 A.R. 355 (C.A.), refd to. [para. 137].

Canada v. Amway Corp. et al., [1989] 1 S.C.R. 21; 91 N.R. 18, refd to. [para. 146].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, refd to. [para. 148].

R. v. Canadian Dredge & Dock Co. et al., [1985] 1 S.C.R. 662; 59 N.R. 241; 9 O.A.C. 321; 19 C.C.C.(3d) 1, refd to. [para. 150].

Ship Rhone v. Ship Peter A.B. Widener et al., [1993] 1 S.C.R. 497; 148 N.R. 349, refd to. [para. 154].

R. v. Safety-Kleen Canada Inc. (1997), 98 O.A.C. 14; 114 C.C.C.(3d) 214 (C.A.), refd to. [para. 155].

R. v. Ontario Power Generation, [2006] O.J. No. 4659 (C.J.), refd to. [para. 157].

Authors and Works Noticed:

Hogg, Peter W., and Monahan, Patrick J., Liability of the Crown (3rd Ed. 2000), pp. 334, 335 [para. 136].

Rogers, Ian MacF., The Law of Canadian Municipal Corporations (2nd Ed. 1971), p. 14 [para. 126].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 34, 35 [para. 125]; 162, 163 [para. 130]; 51 [para. 124].

Counsel:

S.P. MacKenzie, for the Crown;

M. Morrison and M. Dixon, for the accused.

This case was heard at Edmonton, Alberta, by Allen, P.C.J., of the Alberta Provincial Court, who delivered the following ruling on the committal for trial on November 13, 2007.