Court of Appeal for Ontario

Date: 2018-09-21 Docket: M49547 Motion Judge: MacFarland J.A.

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 Krishnan Suthanthiran.

Parties

Between

The Attorney General of Canada – Kingdom of Belgium Responding Party

and

Krishnan Suthanthiran, Best Theratronics Ltd. and Best Medical Belgium Inc. Applicants

Counsel

Scott C. Hutchison, for the applicants

Jeffrey G. Johnston, for the responding party

Heard: September 20, 2018

Endorsement

[1] The history of this litigation to this point in time is succinctly set out in paragraphs 1-10 of the application judge's reasons.

[2] The thrust of the argument is that, although the propriety of the issuance of the sending order in this province was upheld by this court and a subsequent application for leave to appeal to the Supreme Court of Canada denied, because another court of coordinate jurisdiction in British Columbia denied a sending order involving the same parties and the same investigation and the Attorney General did not appeal that ruling – the Ontario court should, by reason of the principle of res judicata and/or issue estoppel somehow be bound to follow that determination of the B.C. court and come to a similar conclusion.

[3] While the argument may be novel, in my view it is entirely without merit.

[4] First I am satisfied that this court is without jurisdiction to hear an appeal in these circumstances. As the application judge noted:

The jurisdiction and test to re-open proceedings under the Act flows from the decision of R. v. Wilson, [1983] 2 S.C.R. 594. In Viscomi v. Ontario (Attorney General), 2014 ONSC 5262, 326 C.C.C. (3d) 160 at paras 18-20, Code J. set out the governing principles when considering whether to re-open proceedings in the context of a Mutual Legal Assistance Treaty (MLAT) matter.

[5] A motion for leave to appeal from the Viscomi decision was dismissed by this court: R. v. Viscomi, 2014 ONCA 765.

[6] It is argued here as it was in Viscomi, that the application to re-open is made under the Mutual Legal Assistance in Criminal Matters Act (R.S.C., 1985, c. 30 (4th Supp.)). As the Chief Justice explained in his reasons:

[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.

[7] That is the situation here. The Applicants in their Notice of Application to Re-Open Sending Hearing request:

[8] 1. An order pursuant to s. 15(1)(a) of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.), and the inherent jurisdiction of this court, re-opening the sending application –

[9] In my view, the law on this point is settled. An application such as this to re-open a sending application does not arise under the MLACMA because as the Chief Justice noted there is no provision in that Act that provides jurisdiction to conduct a Wilson review of a sending order. Consequently the only available jurisdictional basis for a review is a Wilson application pursuant to the court's inherent jurisdiction. The law is well-settled that there is no appeal from a Wilson order: R. v. Meltzer (1989), 1 S.C.R. 1764 at pp. 1773-1775.

[10] There were two avenues available for the review of the Sending Order here – first an appeal under s. 35 of the Act or a Wilson application. The applicants here have availed themselves of both avenues and been unsuccessful in both. In my view, they are at the end of the proverbial road.

[11] It is clear from his reasons that the application judge was alive to the decision of Code J. and well aware that the jurisdiction he was exercising in hearing the application to review was pursuant to his inherent jurisdiction. While the proceedings he was asked to re-open had been conducted under the MLACMA – the application to re-open was not. This is clear from Viscomi.

[12] Even if I am wrong on the jurisdictional point – I would not grant leave to appeal. I do not accept the applicants' argument as it relates to the principles of res judicata and issue estoppel.

[13] First, the sending hearings in the two jurisdictions were not based on the same record, seek the same relief or involve the same parties.

[14] In his careful reasons the application judge detailed the differences between the two applications and in particular the differences between the Goodgie affidavit in support (Ontario) and the Laton affidavit (B.C.). See paras. 22-28. And in the end concluded he did not agree with the B.C. court's ultimate conclusion in any event. There is nothing unusual about courts in the different provinces coming to different conclusions on issues.

[15] Secondly, the Ontario litigation was finally concluded before the decision in the B.C. court was decided. If the issue estoppel/res judicata principle was even applicable – and in my view it is not on these facts – it would be applicable to the B.C. decision not the Ontario decision.

[16] The applicants here simply pick the result they prefer and fashioned an argument that fits their choice – an argument I do not accept.

[17] For these reasons the application for leave to appeal is dismissed.

J. MacFarland J.A.