CITATION: Attorney General of Canada v. Suthanthiran, 2015 ONSC 3573
COURT FILE NO.: 13167
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA - KINGDOM OF BELGIUM
Respondent
– and –
KRISHNAN SUTHANTHIRAN, BEST THERATRONICS LTD. AND BEST MEDICAL BELGIUM INC.
Applicants
Jeffrey G. Johnston, for the Respondent
Joseph Addelman, for the Applicants
HEARD: May 29,2015
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 15(1) OF THE MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ACT, R.S.C. 1985, c. 30 (4th Supp.) to send seized evidence to the kingdom of belgium
REASONS FOR JUDGMENT
MARANGER J.
Introduction:
[1] On July 23, 2014, the Minister of Justice for Canada approved a request from the Kingdom of Belgium dated May 7, 2014, seeking a search and seizure of business records from the registered offices of Best Canada, located at 413 March Rd., Ottawa, Ontario. The request was pursuant to a treaty between Canada and the government of Belgium under the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985. c. 30 (4th Supp.) (“the Act”).
[2] The Belgium authorities sought the materials in furtherance of their investigation of various criminal offences under the Belgian Criminal Code, including: misuse of company assets, concealing assets and insolvency, making false statements, using false documents and money-laundering. These allegations were made against Krishnan Suthanthiran and companies under his control.
[3] On September 30, 2014, Justice Beaudoin authorized a search warrant, which was executed on October 2, 2014. The Attorney General of Canada applied for a Sending Order, pursuant to s. 15 of the Act, on February 26, 2015.
[4] On May 29, 2015, Krishnan Suthanthiran, Best Theratronics Ltd. and Best Medical Belgium Inc. (“the Applicants”) applied for an Order of Production requiring disclosure of the contents of the Request to Send that was presented to the Minister of Justice by the Belgium authorities, dated May 17, 2014. The Applicants also sought an order requiring Corporal Goodgie, of the RCMP, to attend for cross-examination on the affidavit he filed to obtain a search warrant, pursuant to section 12(1) of the Act.
[5] These “preliminary” applications are brought as part of a broader application to set aside the search warrant granted by Justice Robert Beaudoin, thereby resisting the Sending Order.
Background:
[6] The factual background to this application can be summarized as follows:
• The country of Belgium was investigating Krishnan Suthanthiran (“Suthanthiran”), Best Theratronics Ltd. (“Best Canada”), and Best Medical Belgium Inc. (“BMB”) for the Belgian offences of misuse of company assets, concealing assets and insolvency, making false statements, using false documents and money laundering, contrary to the Belgian Criminal Code.
• The claim is that Suthanthiran fraudulently misappropriated €9,656,000.00 from Best Medical Belgium SA (“BMB SA”) and its creditors by transferring funds to Suthanthiran through Best Canada in a series of transactions between April 1, 2011, and August 19, 2011. The thrust of the allegations are:
a) That Suthanthriran acquired ownership of BMB SA and then improperly transferred €5,500,000 from BMB SA to Best USA in the form of a loan; those funds were instead received by Best Canada and not repaid.
b) That Suthanthiran caused BMB SA to buy two cyclotrons (a miniature accelerator used to make radioactive isotopes in medicine) from Best Canada, which were never delivered. It is alleged that BMB SA, at Suthanthiran’s direction, made payments to Best Canada totaling €4,156,000 for the equipment; these funds were not repaid.
c) That Best Canada liquidated BMB SA’s assets and thereby contributed to the company becoming fraudulently insolvent.
• An ex parte application by the Attorney General of Canada for a search warrant was bought before Justice Robert Beaudoin on September 30, 2014, pursuant to s. 12(1) of the Act. The warrant was granted based on the on the affidavit of RCMP Corporal Goodgie, sworn on September 29, 2014.
• At paragraph 6, the affidavit indicated:
The information in this affidavit is based on my reading of the Request, which summarizes the Belgian investigation into the commission of the Offences, including witness interviews conducted by Belgian authorities and documents provided during the course of those interviews, as well as [an] investigation conducted in Canada by the RCMP and my speaking directly with the investigating judge overseeing the Belgian investigation…. On September 18, 2014, I spoke by telephone to the Honorable Judge Dhaeyerwho confirmed that the information contained in the request as summarized in this affidavit is true to the best of his knowledge and belief [sic].
• The affidavit is 32 pages in length and outlined some of the factual allegations advanced by the Belgian authorities in support of the authorization.
• As a basis for their request for disclosure and to cross-examine Corporal Goodgie, the Applicants claim that Corporal Goodgie’s affidavit contained misleading and false information, and did not present a full and accurate description of the events leading up to the request being made.
Basis of Application
[7] In support of the preliminary application Ms. Emma Cariou, legal assistant to counsel representing Suthanthiran, filed an affidavit. Ms. Emma Cariou’s affidavit disputes the following points in Corporal Goodgie’s affidavit:
• that the expansion of the facilities of Best Thetrathronics at 413 March Rd. was funded by fraudulently obtained money from Best Medical Belgium.
• that the Fleurus site could not support the operation of the two new cyclotrons and therefore the transfer the funds to Best Therathronics was therefore fraudulent.
• that the €5,500,000 loan from BMB SA to Best Therathronics Inc. (the Virginia parent company to Best Therathronics Ltd., located in Ottawa) was fraudulent because the beneficiary of the loan, being Best Therathronics Ltd., was not the stated borrower.
• that business plans were never received from Suthanthiran.
• that the €5,500,000 loan and the payments on the two cyclotrons were for the deliberate purpose of depleting the BMB SA’s assets, rendering them insolvent for the benefit of the other companies.
[8] The Applicant’s affidavit also attached several documents to support these general propositions, including several volumes of business expense receipts to show that the Best Canada and BMB were incurring many costs to support BMB SA.
Applicable Law and Analysis:
[9] R. v. Larosa, (2002), 2002 CanLII 45027 (ON CA), 166 C.C.C. (3rd) 449, 98 C.R.R. (2d) 210 (Ont. C. A.), sets out the test to be applied when determining whether documents that were not before the court should be disclosed and whether leave should be granted to cross-examine the officer who swore the affidavit in support of the warrant in the context of a MLAT proceeding. Paragraph 76 reads:
In my view, before ordering the production of documents and compelling testimony in support of allegations of state misconduct, this court should be satisfied that the following three criteria have been met by the applicant:
• the allegation must be capable of supporting the remedy sought;
• there must be an air of reality to the allegation; and
• it must be likely that the documents sought and the testimony sought would be relevant to the allegations.
[10] The disclosure rights and obligations under the Act are analogous to those in the context of extradition cases. The right to make full answer and defence is not engaged in proceedings under this legislation, with the result being that disclosure is limited to the material relied upon in seeking the judicial authorization at issue (See: Canada v. Curtis, 2005 BCSC 516, 65 W.C.B. (2d) 246).
[11] The simple truth in this case is that, even if the contentions raised by the Applicants have merit and the relevant portions of the officer’s affidavit were excised, the remaining information in the affidavit would support the issuance of the search warrant by the authorizing justice. In other words, the allegations are not capable of supporting the remedy sought.
[12] Furthermore, I find that there is no air of reality to the Applicants’ contention that the requesting state deliberately misled the Court to obtain the search warrant. In Larosa, at paragraph 79, Justice Doherty explained the significant onus that rests on an applicant when making such an allegation:
… the accused bears the burden of making a tenable allegation of mala fides on the part of the Crown. Such an allegation must be supportable by the record before the court, or if the record is lacking or insufficient, by an offer of proof. Without such an allegation, the court is entitled to assume what is inherent in the process, that the Crown exercised discretion properly, and not for improper or arbitrary motives…
[13] The evidence presented by the Applicants does not amount to a tenable allegation of mala fides on the part of the Belgium or Corporal Goodgie.
[14] The evidence presented has to be considered in the context of the offences alleged. The essence of the allegations is that Suthanthiran used a multi-million dollar fraudulent loan from a Belgian company to expand a Canadian company; the Belgian company became insolvent to the detriment of its creditors. The contentions raised in the material filed by the Applicants, whether taken individually or as a whole, do not eliminate the reasonable and probable grounds contained in the officer’s affidavit in support of this fundamental allegation.
[15] Therefore, the applications for disclosure of the Request to Send and for leave to cross-examine Corporal Goodgie are dismissed.
Maranger J.
Released: June 17, 2015
CITATION: Attorney General of Canada v. Suthanthiran, 2015 ONSC 3573
COURT FILE NO.: 13167
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 15(1) OF THE MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ACT, R.S.C. 1985, c. 30 (4th Supp.) to send seized evidence to the kingdom of belgium
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA - KINGDOM OF BELGIUM
Respondent
– and –
KRISHNAN SUTHANTHIRAN, BEST THERATRONICS LTD. AND BEST MEDICAL BELGIUM INC.
Applicants
REASONS FOR JUDGMENT
Maranger J.
Released: June 17, 2015