COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Viscomi, 2014 ONCA 765

DATE: 2014-10-31

DOCKET: M44253

Strathy C.J.O. (In Chambers)

IN THE MATTER OF an application pursuant to s. 20(1) of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.), for an Order to send evidence gathered in Canada for use by authorities in the United States of America in their investigation and prosecution of Marco Viscomi

BETWEEN

The Attorney General for Ontario

and

The Attorney General of Canada

Respondents

and

Marco Viscomi

Applicant

Joseph S. Wilkinson, for the applicant

Robert W. Hubbard, for the respondent the Attorney General of Ontario

Nancy Dennison, for the respondent the Attorney General of Canada

Heard: October 16, 2014

Motion for leave to appeal from the order of Justice M.A. Code of the Superior Court of Justice, dated September 11, 2014, with reasons reported at: 2014 ONSC 5262.

Strathy C.J.O.:

[1] The applicant seeks leave to appeal from an order dismissing his application to re-open a sending order made under s. 20(1) of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.)("MLACMA"). For the reasons that follow, the application for leave to appeal is dismissed.

[2] The applicant is charged in the United States with sexual coercion of a minor and transporting visual depictions of sexually explicit conduct involving a minor by means of a computer.

[3] The application judge heard the MLACMA proceedings ex parte on November 6, 2012, following which he granted two gathering orders, and on March 12, 2013, at which time he granted two sending orders.

[4] An extradition hearing was held on April 11 and 12, 2013 and resulted in a committal order. The applicant has appealed to this court from that order.

[5] On October 17, 2013, the Minister advised the applicant's lawyer of his reasons for surrendering the applicant to the U.S. authorities. His letter made specific reference to the MLACMA orders and informed the applicant that the materials had been sent to the United States.

[6] The applicant did not seek leave to appeal the MLACMA orders.

[7] The applicant then filed a Notice of Application in this court seeking judicial review of the Minister's surrender decision.

[8] On May 9, 2014, more than six months after he became aware of the orders, the applicant brought an application to re-open the MLACMA proceedings. The application judge characterized it, correctly in my view, as a Wilson application.[^1] He held that the court had inherent jurisdiction to review its own orders on an inter partes basis. He noted that the review was not a hearing de novo. The issue was whether, in light of the more complete record before him, there remained some basis on which the original orders could have been made. He concluded that there had been no material non-disclosure in the original ex parte proceedings and dismissed the application to re-open them.

[9] Not having sought leave to appeal the MLACMA orders, the applicant now seeks leave to appeal the order in the Wilson application. The respondents assert this court has no jurisdiction to hear an appeal from that order.

[10] This jurisdictional issue turns on the interpretation of s. 35 of MLACMA, which provides:

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.

[11] The question is whether the order of the application judge was made "under" MLACMA. The simple answer is that it was not. No provision of MLACMA provides jurisdiction to conduct a Wilson review of a gathering or sending order. As recognized by the application judge, this review was conducted pursuant to the inherent jurisdiction of the court to review its own ex parte order.

[12] It is well-settled that there is no appeal from a Wilson application: R. v. Meltzer, [1989] 1 S.C.R. 1764, at pp. 1773-1775; R. v. Heikel, [1989] 1 S.C.R. 1776, at p. 1779; R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1431.

[13] I conclude this court has no jurisdiction to hear an appeal from the Wilson order. Accordingly, there is no basis on which to grant leave to appeal. The sending orders were subject to two avenues of review – an appeal under s. 35 of MLACMA or a Wilson application pursuant to the court's inherent jurisdiction. The avenues were concurrent, but distinct. The applicant did not seek leave to appeal the sending orders. Those orders were fully executed and the material in question is in the hands of the United States authorities.

[14] MLACMA is intended to be an expeditious means of discharging Canada's treaty obligations. That purpose would not be achieved by providing an appeal from an interlocutory order refusing to set aside an order from which a right of appeal was available but was not exercised.

[15] The application for leave to appeal is therefore dismissed.

[^1]: R. v. Wilson, [1983] 2 S.C.R. 594.