Court of Appeal for Ontario
Date: 2018-01-30
Docket: M48577, M48687 (C64473)
Panel: Doherty, LaForme and Paciocco JJ.A.
Between
The Ontario Provincial Police and Her Majesty the Queen Applicants
and
Assessment Direct Inc., Universal Injury Rehabilitation Centre Inc., Osler Rehabilitation Centre Inc., Metro Rehabilitation Centre Inc., Rouge Valley Rehabilitation Centre Inc. and Publix Rehabilitation Centre Inc. Respondents
Counsel
John Patton, for the applicants
Richard Shekter and Karina Wong, for the respondents
Erin Dann, for the referee
Heard and released orally: January 18, 2018
Reasons for Decision
[1] This is an appeal from an order of Nordheimer J. determining whether certain materials seized by the O.P.P. under a search warrant issued on the Criminal Code is subject to litigation privilege and therefore not potentially evidence in any criminal proceeding that might be undertaken. To this point in time, there have been no charges laid.
[2] We note that in his order, Nordheimer J. made no declaratory order relating to the constitutionality of any statutory provision or any state conduct.
[3] In our view, the order is properly characterized as affecting the enforcement or implementation of the search warrant. The search warrant is a judicial order made on an ex parte application brought under the Criminal Code pertaining to an ongoing criminal investigation. In our view, judicial orders that are directed at the enforcement or implementation of a criminal order are themselves criminal in nature.
[4] No appeal lies to this court in a criminal proceeding under the Courts of Justice Act. The appeal must be quashed.
"Doherty J.A."
"H.S. LaForme J.A."
"David M. Paciocco J.A."