Her Majesty the Queen v. Gong

[Indexed as: R. v. Gong]

Ontario Reports

Court of Appeal for Ontario

Nordheimer J.A.

September 18, 2020

152 O.R. (3d) 781 | 2020 ONCA 587

Case Summary

Appeal — Jurisdiction — Court of Appeal — Appellant charged with four offences subject to production order from Ontario Securities Commission --Application judge rejecting appellant's privilege claims over documents sought to be produced — Crown moving to quash appellant's appeal from application judge's order — Motion granted — Matter was clearly criminal such that any appeal route to Court of Appeal had to be found in Criminal Code — No such appeal route existed.

Criminal law — Appeal — Jurisdiction — Appellant charged with four offences subject to production order from Ontario Securities Commission --Application judge rejecting appellant's privilege claims over documents sought to be produced — Crown moving to quash appellant's appeal from application judge's order — Motion granted — Matter was clearly criminal such that any appeal route to Court of Appeal had to be found in Criminal Code — No such appeal route existed.

The appellant was charged with fraud over $5,000, possession of property obtained by crime, laundering proceeds of crime and uttering a forged document. Investigators for the Ontario Securities Commission obtained a production order under the Criminal Code for accounting and taxation files relating to the appellant and several companies under his control. The appellant asserted claims of solicitor-client or litigation privilege over the documents covered by the production order. An application judge rejected the claim of litigation privilege, and found that it would be necessary to review each of the documents to make a final determination as to the application of solicitor-client privilege. The appellant applied for leave to appeal the order of the application judge to the Supreme Court of Canada. The application was dismissed for want of jurisdiction. The appellant then appealed the order of the application judge to the Court of Appeal. The Crown moved to quash the appeal.

Held, the motion should be granted.

There was no appeal currently available from the order of the application judge. The appellant argued that it was a civil matter so that there was an appeal to the Court of Appeal under s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. However, the production order was directed at gathering possible evidence of a Criminal Code offence. Criminal charges had been laid against the appellant in the months before the production order was granted. Presumably any material obtained by the Crown through the production order was always intended to, and would, be used in furtherance of a prosecution. In those circumstances, the process could not be characterized as anything other than a criminal matter. As such, the appellant could not rely on the Courts of Justice Act and had to find an appeal route in the Criminal Code. The appellant acknowledged that no such appeal route existed. Different considerations would come into play if the appellant ended up being convicted at trial on the seized material. [page782]

Ontario (Provincial Police) v. Assessment Direct Inc., [2018] O.J. No. 451, 2018 ONCA 78 [Leave to appeal to S.C.C. refused [2018] S.C.C.A. No. 29]; R. v. Canadian Broadcasting Corp. (2011), 107 O.R. (3d) 161, [2011] O.J. No. 4323, 2011 ONCA 624, 285 O.A.C. 160, 13 C.P.C. (7th) 7, 344 D.L.R. (4th) 19, 281 C.C.C. (3d) 167, apld

Canada v. Stewart McKelvey Stirling & Scales (appeal by Dee), [2008] N.B.J. No. 169, 2008 NBCA 10, 232 C.C.C. (3d) 269, 78 W.C.B. (2d) 84, 330 N.B.R. (2d) 97; Kourtessis v. M.N.R., 1993 137 (SCC), [1993] 2 S.C.R. 53, [1993] S.C.J. No. 45, 102 D.L.R. (4th) 456, 153 N.R. 1, [1993] 4 W.W.R. 225, J.E. 93-836, 27 B.C.A.C. 81, 78 B.C.L.R. (2d) 257, 81 C.C.C. (3d) 286, 20 C.R. (4th) 104, 14 C.R.R. (2d) 193, [1993] 1 C.T.C. 301, 93 D.T.C. 5137, 19 W.C.B. (2d) 344; Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R v. Fink, [2002] 3 S.C.R. 209, [2002] S.C.J. No. 61, 2002 SCC 61, 216 D.L.R. (4th) 257, 292 N.R. 296, [2002] 11 W.W.R. 191, J.E. 2002-1713, 4 Alta. L.R. (4th) 1, 312 A.R. 201, 217 Nfld. & P.E.I.R. 183, 164 O.A.C. 280, 167 C.C.C. (3d) 1, 3 C.R. (6th) 209, 96 C.R.R. (2d) 189, [2002] 4 C.T.C. 143, 2002 D.T.C. 7267, 2002 D.T.C. 7287, 54 W.C.B. (2d) 401, JCPQ 2002-102; R. v. Wilder, 1996 1888 (BC CA), [1996] B.C.J. No. 1835, 80 B.C.A.C. 17, 110 C.C.C. (3d) 186, 32 W.C.B. (2d) 6, consd

R. v. Consolidated Fastfrate Transport Inc. (1995), 1995 1527 (ON CA), 24 O.R. (3d) 564, [1995] O.J. No. 1855, 125 D.L.R. (4th) 1, 83 O.A.C. 1, 99 C.C.C. (3d) 143, 40 C.P.C. (3d) 160, 61 C.P.R. (3d) 339, 27 W.C.B. (2d) 528; R. v. Lepage (1997), 1997 2236 (ON CA), 36 O.R. (3d) 3, [1997] O.J. No. 4016, 152 D.L.R. (4th) 318, 103 O.A.C. 241, 119 C.C.C. (3d) 193, 11 C.R. (5th) 1, 47 C.R.R. (2d) 66, 36 W.C.B. (2d) 90, distd

Other cases referred to

R. v. Gong, [2019] O.J. No. 5879, 2019 ONSC 5899

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 15

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1) (b)

Criminal Code, R.S.C. 1985, c. C-46, ss. 487.012 [as am.], 488.1 [as am.], 672.47 [as am.], 672.54 [as am.]

Supreme Court Act, R.S.C. 1985, c. S-26, s. 40(1)

MOTION by the Crown to quash an appeal from an order of an application judge.

Davin Garg, for applicant.

Scott Hutchison and Alexa Ferguson, for respondent.

The judgment of the court was delivered by

[1] NORDHEIMER J.A.: — The Crown brings this motion to quash an appeal taken by Mr. Gong from the order of the application judge.[^1] For the following reasons, the motion is granted and the appeal is quashed. [page783]

I: Background

[2] Mr. Gong is charged with four offences: fraud over $5,000; possession of property obtained by crime; laundering proceeds of crime; and uttering a forged document.

[3] In March 2018, investigators for the Ontario Securities Commission (the "OSC") obtained a production order under the provisions of the Criminal Code, R.S.C. 1985, c. C-46 in relation to the appellant and several companies under his control. The production order related to the files held by PricewaterhouseCoopers ("PWC") in relation to accounting and taxation matters for the appellant and his companies. The appellant asserted claims of solicitor-client or litigation privilege over the documents covered by the production order.

[4] On consent, the documents which are the subject of the production order were sealed and filed with the court pending the determination of the privilege claims.

[5] The application judge rejected the claim of litigation privilege. She also rejected the solicitor-client privilege claim in its broadest respect. However, the application judge found that it would be necessary to review each of the documents in question to make a final determination as to the application of solicitor-client privilege. To accomplish that review, she appointed two referees whose task was to review all of the documents and separate them into various categories that she established. The application judge hoped that this process would expedite the review of the documents.

[6] The appellant first sought leave to appeal to the Supreme Court of Canada from the order of the application judge, under s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26. That application was dismissed by a judgment of the court which read, in part, "dismissed for want of jurisdiction": 39040 (April 16, 2020).

[7] The appellant then brought an appeal to this court, which the Crown moves to quash on the basis that no appeal lies from the application judge's order.

II: Analysis

[8] The first issue to be determined is whether the order under appeal is criminal or civil, because that determination directs the applicable appeal route, if any. The Crown says that this is a criminal matter and any appeal route must be found in the Criminal Code. The appellant says that it is a civil matter so that an appeal lies to this court from the "final" order under s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. [page784]

[9] The governing principles are found in Canadian Broadcasting Corp. v. Ontario (2011), 107 O.R. (3d) 161, [2011] O.J. No. 4323, 2011 ONCA 624, per Doherty J.A., at para. 18. There are three categories of orders that would be considered to be criminal in nature. Those three categories are: (i) an order made in the course of a criminal proceeding, (ii) an order directly impacting on an ongoing or pending criminal proceeding, or (iii) an order rescinding or varying an order made in a criminal proceeding. The order of the application judge here clearly fits into the first and second categories.

[10] The circumstances here mirror what occurred in Ontario (Provincial Police) v. Assessment Direct Inc., [2018] O.J. No. 451, 2018 ONCA 78, leave to appeal to S.C.C. refused [2018] S.C.C.A. No. 29. In that case, the police had obtained documents pursuant to a search warrant issued in a possible criminal prosecution. No charges had yet been laid. The targets of the search warrant claimed privilege over the documents. The application judge found that certain documents were not privileged and ordered that they be released to the police. The targets appealed to this court from that order. This court quashed the appeal, specifically finding that no appeal lay under s. 6(1)(b) of the Courts of Justice Act. In doing so, this court said, at para. 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.

[11] The production order in this appeal was granted under the pertinent provisions of the Criminal Code. It was directed at gathering possible evidence of a Criminal Code offence. Criminal charges were laid against the appellant in the months before the production order was granted. Presumably any material that is obtained by the Crown through the production order (if the privilege claim fails) was always intended to, and will, be used in furtherance of a prosecution. In those circumstances, I do not see how this process could be characterized as anything other than a criminal matter.

[12] In my view, the order at issue here is an order that was "directed at the enforcement or implementation of a criminal order".

[13] The appellant attempts to distinguish this case from Assessment Direct by relying on the Supreme Court of Canada's judgment that dismissed the motion for leave to appeal for "want of jurisdiction". The appellant submits that "[i]f an application [page785] under s. 40 of the Supreme Court Act is not the correct avenue of appeal then it must be the case that an appeal lies to this Court" (respondent's factum para. 34).

[14] The flaw in that submission is the assumption that there must be a route of appeal. That is not necessarily the case. Any appeal route must be found in a statute: Kourtessis v. M.N.R., 1993 137 (SCC), [1993] 2 S.C.R. 53, [1993] S.C.J. No. 45, at pp. 69-70 S.C.R. I have already set out why the order in question here does not arise from a civil matter with the result that the Courts of Justice Act cannot be relied upon to provide an appeal route. Consequently, the appellant must find an appeal route in the Criminal Code. The appellant acknowledges that no such appeal route exists under the Criminal Code.

[15] The appellant also contends that there must be an appeal route because if the documents are released to the Crown then "the proverbial cat is out of the bag". However, that is often the result in a criminal proceeding where pre-trial rulings are made with respect to the seizure of evidence. Evidence gathered through search warrants, wiretaps, production orders and the like, are often determined before trial. Indeed, they may be determined before charges have been laid, as was the case in Assessment Direct. That fact does not change the existing appeal routes. An accused person who fails to successfully challenge one of these types of orders can only appeal that result after the trial is completed and the accused is found guilty. That reality exists notwithstanding the unbagging of the proverbial cat.

[16] The appellant tries to sustain his position by reference to a variety of other decisions, none of which, viewed fairly, assist him. I do not intend to refer to all of the cases upon which the appellant relies, but I will mention the two that emanate from this court. The appellant contends that R. v. Consolidated Fastfrate Transport Inc. (1995), 1995 1527 (ON CA), 24 O.R. (3d) 564, [1995] O.J. No. 1855, 125 D.L.R. (4th) 1 (C.A.) is "directly analogous to the case at bar". That is simply not the case. In Fastfrate, an injunction had been obtained to restrain the accused company from disposing of its assets pending trial. This court understandably held that the injunction was a civil order and thus appealable under the Courts of Justice Act. As Galligan J.A. said, at p. 6 D.L.R.: "It is my view that the order in this case was a civil order made for the purpose of assisting the criminal law and did not itself become a part of the ongoing criminal proceedings." An injunction bears no comparison to a production order granted under the Criminal Code.

[17] The other case is R. v. Lepage (1997), 1997 2236 (ON CA), 36 O.R. (3d) 3, [1997] O.J. No. 4016 (C.A.), in which the accused applied for [page786] a declaration that ss. 672.47 and 672.54 of the Criminal Code were unconstitutional. The trial judge found that s. 672.54 violated s. 15 of the Canadian Charter of Rights and Freedoms. The Crown appealed. In a footnote to his decision, Doherty J.A. noted that the issue of this court's jurisdiction to hear the appeal was not contested. However, he went on to observe that, in any event, the respondent's successful application for declaratory relief engaged the civil appellate jurisdiction of this court under the Courts of Justice Act. No declaratory relief was sought or obtained in this case. I also note that this court expressly noted in Assessment Direct that no declaratory relief had been sought in that case. The decision in Lepage simply does not assist the appellant.

[18] Two other cases support the Crown's position, which appellant's counsel, very fairly and responsibly, included in his factum. The first is Canada v. Stewart McKelvey Stirling & Scales (appeal by Dee), [2008] N.B.J. No. 169, 2008 NBCA 10, 232 C.C.C. (3d) 269, where the New Brunswick Court of Appeal held that no appeal lay from the determination by a judge of the Court of Queen's Bench that certain documents, seized from the premises of a law firm in compliance with a production order issued pursuant to s. 487.012 of the Criminal Code, were not privileged because the order was made in the course of a criminal investigation that led to a criminal prosecution.

[19] The other is R. v. Wilder, 1996 1888 (BC CA), [1996] B.C.J. No. 1835, 110 C.C.C. (3d) 186 (C.A.). In that case, the target of a search warrant, whereby documents were seized from a solicitor's office under s. 488.1 of the Criminal Code, moved to quash the search warrant. The documents in question had been sealed pursuant to the procedure set out in s. 488.1. The British Columbia Court of Appeal held that no appeal lay to it from the order of the application judge made under s. 488.1 regarding whether solicitor-client privilege attached to the documents.

[20] Finally, the appellant invokes the decision in Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, [2002] 3 S.C.R. 209, [2002] S.C.J. No. 61, 2002 SCC 61, to argue that since the principle of solicitor-client privilege is involved in this case, broad remedies should be provided.

[21] That submission runs headlong into the principle that appeal rights must be found in a statute. I have already referred to the decision in Kourtessis where that point was clearly made: "[a]ppeals are solely creatures of statute" per La Forest J., at p. 69 S.C.R. There is nothing in Lavallee that alters that basic principle -- a principle that does not vary based on the importance of the [page787] underlying issue. The decision in Lavallee dealt with the process under the Criminal Code to protect a claim of privilege. It did not purport to address what, if any, appeal routes lay from decisions that ruled on whether the privilege applied.

[22] The appellant's submission also runs counter to many prior decisions, some of which I have referred to above, where solicitor-client privilege was at issue, but that fact did not alter the conclusion regarding whether an appeal lay or not.

[23] To conclude, no appeal lies at this stage from the order of the application judge. Different considerations will come into play if a trial is held, if the material seized is relied upon at the trial, and if the appellant is convicted.

III: Conclusion

[24] I would grant the motion and quash the appeal.

Motion granted.

Notes

[^1]: R. v. Gong, [2019] O.J. No. 5879, 2019 ONSC 5899.

End of Document