84 O.R. (3d) 481
Court of Appeal for Ontario,
MacPherson J.A. (In Chambers)
March 13, 2007
* Vous trouverez la traduction française de la décision ci-dessus à la p. 487, post.
Criminal law — Mutual legal assistance in criminal matters — Leave to appeal — Gathering order — Applicant facing fraud charges in United States — Applicant also being charged with obstruction of justice after removing thirteen boxes of material from his office after document production request was served on him — United States government seeking gathering and sending orders under ss. 17(2) and 20(1) of Mutual Legal Assistance in Criminal Matters Act in respect of those boxes of material — Application judge granting gathering order — Applicant applying for leave to appeal gathering order under s. 35 of Act — Leave to appeal denied — Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.), ss. 17(2), 20(1), 35.
The applicant was facing fraud-related charges in the United States. He was also charged with obstruction of justice after removing 13 boxes of documents from his office after a document production request was served on him and his counsel. The United States government applied pursuant to ss. 17(2) and 20(1) of the Mutual Legal Assistance in Criminal Matters Act for gathering and sending orders relating to the 13 boxes. The application judge granted a gathering order pursuant to s. 17(2). The sending hearing had not yet been held. The applicant applied for leave to appeal the gathering order under s. 35 of the Act and for a stay of the gathering order.
Held, the application should be dismissed.
The test for leave to appeal under s. 35 of the Act is as follows: (1) Is the question raised not settled by authority? (2) Is it of importance generally and, if not of importance generally, is it nonetheless of great importance to a person with serious interests, such as his liberty, at stake? (3) Does the proposition of law put forward have any merit? (4) Are there other discretionary considerations, such as prejudice to either the applicant or the requesting state, which should be taken into account?
The first factor was evenly balanced in this case. The second factor told strongly in favour of the respondent. The gathering order stage of the hearing process is a preliminary one. All that the application judge did was preserve the relevant material, make it accessible to the parties, and lay the groundwork for a full and effective sending stage of the hearing which was set to take place in less than a week. The third factor favoured the respondent. While the grounds of appeal were not frivolous, two were very weak and the third was peripheral to the main issue before the application judge. The fourth factor strongly favoured the respondent, as no one was prejudiced by the gathering order. The application for leave to appeal and for an order staying the gathering order is dismissed.
Cases referred to
Canada (Commissioner of Competition) v. Falconbridge Ltd., [2003] O.J. No. 1563, 225 D.L.R. (4th) 1, 173 C.C.C. (3d) 466, 24 C.P.R. (4th) 289, 12 C.R. (6th) 243 (C.A.); National Cheese & Food Co. (Re), [1998] O.J. No. 1988, 110 O.A.C. 151, 38 W.C.B. (2d) 281 (C.A.); United States of America v. Ross, [1994] B.C.J. No. 971, 44 B.C.A.C. 228, 24 W.C.B. (2d) 185 (C.A.), apld [page482]
Statutes referred to
Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.), ss. 17(2) [as am.], 20 [as am.], 35 [as am.]
Securities Exchange Act, 48 Stat. 881 (1934) (codified at 15 U.S.C. 78a)
APPLICATION for leave to appeal the gathering order under the Mutual Legal Assistance in Criminal Matters Act from the judgment of Colin L. Campbell J. of the Superior Court of Justice, dated March 5, 2007, with supplementary reasons dated March 8, 2007.
Amy Alyea and Lorna Bolton, for respondent. Michael Lacy, for applicant/appellant.
MACPHERSON J.A. (in chambers): —
A. Introduction
[1] The applicant Conrad Black seeks leave to appeal the judgment of Justice Colin L. Campbell dated March 5, 2007. In this judgment, the application judge ordered that the contents of 13 boxes which Mr. Black, an assistant and his chauffeur removed from the offices of Hollinger Inc. at 10 Toronto Street in Toronto, be gathered and produced to an RCMP officer pursuant to s. 17(2) of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) (the “Act”).
B. Facts
(1) The parties and events
[2] Mr. Black and several co-accused have been charged in the United States with various fraud-related offences arising out of transactions, primarily involving non-compete agreements in relation to Hollinger International. Mr. Black is also charged with obstruction of justice with respect to the 13 boxes he removed from the Hollinger Inc. office in Toronto. The trial in these matters is set to commence on March 14, 2007 in Chicago, Illinois.
[3] Pursuant to ss. 17(2) and 20(1) of the Act, the United States government applied for gathering and sending orders relating to the 13 boxes. The boxes are sought as potential evidence respecting the fraud charges faced by the defendants and, especially, the obstruction of justice charge faced by Mr. Black.
[4] The prosecution bases its obstruction of justice charge exclusively on Mr. Black’s removal of the 13 boxes. In May 2005, Mr. Black had already been charged under the U.S. Securities Exchange Act, 48 Stat. 881 (1934) (codified at 15 U.S.C. 78a) [page483] and was aware that he was the subject of a criminal investigation in the United States. On May 20, 2005, a document production request was served on counsel for Mr. Black and others. In its application under the Act, the American authorities allege that the following took place the same day:
1. On or about May 20, 2005, at approximately 2:08 p.m. E.S.T., an assistant to BLACK requested that security personnel at the 10 Toronto Street offices assist her in removing approximately 13 boxes to her vehicle in the rear parking area of the 10 Toronto Street offices. As the boxes were being moved by security personnel, a representative of Inc. advised the Inspector that BLACK was planning to remove boxes of documents from the 10 Toronto Street offices. Upon learning of BLACK’S attempt to remove documents from the 10 Toronto Street offices, security personnel were advised by the Inspector of the December 17, 2004 Canadian court order regarding the removal of documents. Subsequently, all of the boxes were returned by security personnel to the inside of the 10 Toronto Street offices.
On or about May 20, 2005 at approximately 5:11 p.m. E.S.T., BLACK, his chauffeur and his assistant returned to the 10 Toronto Street offices and loaded the approximately 13 boxes of documents (which BLACK had attempted to have removed earlier in the day) from inside the 10 Toronto Street offices through a rear entrance and into BLACK’s vehicle. BLACK’s vehicle was then driven away by his chauffeur with the boxes of documents inside.
[5] Six days later, on May 26, 2005, counsel for Mr. Black returned the 13 boxes to the possession of the inspector for Hollinger Inc. Since November 9, 2006, the boxes have been stored at the Superior Court of Justice in Toronto.
(2) The application judge’s decision
[6] The application judge heard the application for a gathering order pursuant to s. 17(2) of the Act on February 27, 2007. He granted the application in reasons released on March 5, 2007. At the request of Mr. Black’s counsel, he released supplementary reasons on March 8, 2007.
[7] The application judge summarized his resolution of the issues before him near the end of his first set of reasons:
I am therefore satisfied that notwithstanding the able submissions of counsel for Black, a gathering Order should issue. For the purposes of the gathering Order, since they are deposited with the Court, nothing further need be done with the documents at this stage.
The original index prepared on behalf of the Inspector and the more recent revision and addition will be made available for the Attorney General.
I am satisfied that it is appropriate to adjourn consideration of the sending Order for a very short time to await further submissions once the requesting party has had the opportunity to review the index such as it is. [page484]
When the adjourned motion for sending is heard, counsel will be expected to address the following:
(a) what documentation from the list is said to be relevant to the SEC subpoena request and therefore the obstruction of justice charge;
(b) whether any greater access to the documents should be permitted by way of a sending Order given the breadth of the Minister’s approval of the Request;
(c) issues of privilege and the basis for any such claim.
[8] The sending hearing has now been set for March 16, 2007.
[9] The applicant seeks leave to appeal the application judge’s decision and, if leave is granted, an order staying the gathering order pending the resolution of the appeal.
C. Issues
[10] The issues on this application are:
(1) Should leave to appeal be granted to enable the applicant to appeal the gathering order made by the application judge?
(2) If the answer to (1) is “Yes”, should the gathering order be stayed pending the hearing and resolution of the appeal?
D. Analysis
(1) The leave issue
[11] The application for leave to appeal is brought pursuant to s. 35 of the Act, which provides: 35. An appeal lies, with leave, on a question of law alone, to the court of appeal, within the meaning of section 2 of the Criminal Code, from any order or decision of a judge or a court in Canada made under this Act, if the application for leave to appeal is made to a judge of the court of appeal within fifteen days after the order or decision.
[12] There is a clear test for considering whether leave should be granted under s. 35 of the Act. It was first stated by Southin J.A. (in chambers) in United States of America v. Ross, [1994] B.C.J. No. 971, 24 W.C.B. (2d) 185 (C.A.), at para. 33: AppLying to this Act the test developed on analogous provisions, I consider the criteria are:
1. Is the question raised not settled by authority?
2. Is it of importance generally and, if not of importance generally, is it nonetheless of great importance to a person with serious interests, such as his liberty, at stake? [page485]
3. Does the proposition of law put forward have any merit or, to put it another way, does it appear to the judge not to be frivolous?
4. Are there other discretionary considerations, such as prejudice to either the applicant or the requesting state which require to be taken into account?
[13] This formulation of the test has been explicitly adopted by this court: see Re National Cheese & Food Co., [1998] O.J. No. 1988, 110 O.A.C. 151 (C.A.), at para. 9 per Charron J.A. (in chambers) and Canada (Commissioner of Competition) v. Falconbridge Ltd., [2003] O.J. No. 1563, 173 C.C.C. (3d) 466 (C.A.), at para. 9.
[14] The applicant asserts that the application judge made three errors that warrant granting leave to appeal: (1) he conflated the gathering and sending stages of the hearing process; (2) he used the wrong legal test to determine whether a gathering order should issue; and (3) he erred with respect to the manner in which he approached the issue of excision of improperly relied upon information in support of the gathering order.
[15] Against the backdrop of the errors the applicant contends were made by the application judge, I will consider the four factors from Ross, National Cheese and Falconbridge.
(a) Questions not settled by authority
[16] In my view, this factor is evenly balanced between the parties.
[17] There is little authority relating to the relationship between the gathering and sending stages of the hearing process, presumably because the gathering stage usually proceeds on an ex parte basis. Accordingly, this factor favours the applicant.
[18] The test for determining whether a gathering order should issue is clear, was explicitly stated by the application judge (indeed he cited precisely the passage from a case authority proposed by the applicant) and, in my view, was manifestly applied correctly by the application judge. This factor favours the respondent.
[19] The excision point is a relatively novel one. However, in the context of the entire evidentiary record before the application judge, it was a minor point. This factor is evenly balanced.
(b) Importance generally or to a person with serious interests at stake
[20] This factor tells strongly in favour of the respondent. The reality — and, in my view, this is the crucial point in this application — is that the gathering order stage of the hearing [page486] process is a preliminary one. The pivotal point, where important issues are raised and serious interests are at stake, is the sending stage which, in this case, is scheduled to proceed later this week. All that the application judge did last week was preserve the relevant material, make it accessible to the parties, and lay the groundwork for a full and effective sending stage of the hearing.
(c) Merits of grounds of appeal
[21] I do not say that the proposed grounds of appeal are frivolous. However, I would label two of the grounds (the conflation and legal test grounds) as very weak and the third (the excision issue) as peripheral to the main issue before the application judge. Accordingly, this factor favours the respondent.
(d) Other factors
[22] This factor strongly favours the respondent. The gathering order prejudices no one. As set out above, the import and effect of the gathering order is the preservation of relevant material, ensuring its accessibility to both parties, and promoting a full, fair and effective sending stage of the hearing. As expressed by Ms. Alyea, the sending hearing is “the meat and potatoes” of the process; the gathering stage is preliminary.
(e) Conclusion
[23] Applying the Ross, National Cheese and Falconbridge factors, an order granting leave to appeal the application judge’s gathering order is not warranted.
(2) The stay issue
[24] The parties agree that this issue does not arise if leave to appeal is refused.
E. Disposition
[25] The application for leave to appeal and for a stay of the gathering order is dismissed.
Application dismissed. [page487]
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