Viscomi v. Attorney General of Ontario et al. Lane v. Attorney General of Ontario et al. Rubin v. Attorney General of Ontario et al.

[Indexed as: Viscomi v. Ontario (Attorney General)]

Ontario Reports

Ontario Superior Court of Justice,

Code J.

January 9, 2015

123 O.R. (3d) 733 | 2015 ONSC 61

Case Summary

Criminal law — Mutual legal assistance in criminal matters — Presumptively ex parte nature of gathering order and sending order regime under ss. 18 and 20 of Mutual Legal Assistance in Criminal Matters Act not violating s. 7 or s. 8 of Charter — Absence of opportunity to appear at s. 20 hearing and oppose sending order on basis of alleged Charter violation not rendering scheme unconstitutional — Act containing broad array of s. 7 and s. 8 safeguards — Large number of after-the-fact remedies available — Canadian Charter of Rights and Freedoms, ss. 7, 8 — Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.), ss. 18, 20.

In three separate applications that were heard together, the applicants challenged the constitutional validity of ss. 18 and 20 of the Mutual Legal Assistance in Criminal Matters Act ("MLACMA"). They argued that the gathering order and sending order regime found in ss. 18 and 20 violates s. 8 of the Canadian Charter of Rights and Freedoms because the proceedings are presumptively ex parte, and argued that at the s. 20 "sending stage", s. 8 of the Charter requires a presumption in favour of notice to any party with a reasonable expectation of privacy in relation to the seized material that is to be sent abroad by the Canadian authorities.

Held, the applications should be dismissed.

Section 8 of the Charter generally does not require inter partes proceedings at the investigative stage of the criminal process. At that stage, there are strong public policy justifications for an expeditious and confidential process. The trans-border context of the MLACMA does not require a departure from the normal principles relating to ex parte searches. The MLACMA contains a broad array of safeguards of s. 7 and s. 8 Charter rights. The absence of an opportunity to appear at a s. 20 hearing and oppose a sending order on the basis of an alleged Charter violation does not render the scheme constitutionally deficient. In any event, the temporary loss of that one preventive remedy in some cases is compensated for by the broad array of after-the-fact remedies that remain available. In particular, the suspect or accused against whom the MLACMA evidence is to be used retains several remedies. First, a Wilson application can be brought, seeking to reopen the s. 20 hearing on an inter partes basis. Second, an MLACMA order can be appealed under s. 35 of the Act. Third, an application can be brought to quash any underlying domestic search warrant on which the MLACMA order depends. Fourth, an originating application can be brought, seeking a declaration of violation of Charter rights. Fifth, a civil lawsuit can be brought against the police and the Crown alleging a violation of Charter rights and seeking civil remedies. Sixth, remedies may be available in extradition proceedings. Seventh, diplomatic and/or political pressure can be exerted, seeking the return of evidence already sent abroad, if it is subsequently determined that the evidence was obtained on the basis of [page734] some serious Charter violation. Eighth, remedies may be available in the foreign proceedings, based on the foreign court's rules of evidence.

Canada (Commissioner of Competition) v. Falconbridge Ltd., 2003 CanLII 52144 (ON CA), [2003] O.J. No. 1563, 225 D.L.R. (4th) 1, 170 O.A.C. 299, 173 C.C.C. (3d) 466, 24 C.P.R. (4th) 289, 12 C.R. (6th) 243, 59 W.C.B. (2d) 72 (C.A.); R. v. Budd, 2000 CanLII 17014 (ON CA), [2000] O.J. No. 4649, 138 O.A.C. 116, 150 C.C.C. (3d) 108, 48 W.C.B. (2d) 341 (C.A.); R. v. Rodgers, [2006] 1 S.C.R. 554, [2006] S.C.J. No. 15, 2006 SCC 15, 266 D.L.R. (4th) 101, 347 N.R. 201, J.E. 2006-910, 210 O.A.C. 200, 207 C.C.C. (3d) 225, 37 C.R. (6th) 1, 140 C.R.R. (2d) 1, EYB 2006-104246, 69 W.C.B. (2d) 741, revg (2004), 2004 CanLII 28435 (ON CA), 70 O.R. (3d) 97, [2004] O.J. No. 1073, 237 D.L.R. (4th) 122, 184 O.A.C. 354, 182 C.C.C. (3d) 449, 21 C.R. (6th) 284, 60 W.C.B. (2d) 444 (C.A.); Russian Federation v. Pokidyshev, 1999 CanLII 3787 (ON CA), [1999] O.J. No. 3292, 178 D.L.R. (4th) 91, 124 O.A.C. 24, 138 C.C.C. (3d) 321, 27 C.R. (5th) 316, 90 A.C.W.S. (3d) 879, 43 W.C.B. (2d) 325 (C.A.); United Kingdom v. Ramsden, 1996 CanLII 1527 (ON CA), [1996] O.J. No. 2716, 92 O.A.C. 270, 41 C.B.R. (3d) 124, 108 C.C.C. (3d) 289, 31 W.C.B. (2d) 538 (C.A.); United States of America v. McAmmond, 2005 CanLII 20 (ON CA), [2005] O.J. No. 8, 193 O.A.C. 129, 192 C.C.C. (3d) 149, 126 C.R.R. (2d) 1, 64 W.C.B. (2d) 429 (C.A.); United States of America v. Price (2007), 86 O.R. (3d) 762, [2007] O.J. No. 2673, 2007 ONCA 526, 226 O.A.C. 45, 225 C.C.C. (3d) 307, 160 C.R.R. (2d) 169, 75 W.C.B. (2d) 536; Wakeling v. United States of America, [2014] S.C.J. No. 72, 2014 SCC 72, 15 C.R. (7th) 1, 2014EXP-3536, J.E. 2014-1995, EYB 2014-244333, consd

Canada (Attorney General) v. Foster, 2006 CanLII 38732 (ON CA), [2006] O.J. No. 4608, 274 D.L.R. (4th) 253, 217 O.A.C. 173, 215 C.C.C. (3d) 59, 71 W.C.B. (2d) 903 (C.A.); R. v. Tse, [2012] 1 S.C.R. 531, [2012] S.C.J. No. 16, 2012 SCC 16, 257 C.R.R. (2d) 295, 91 C.R. (6th) 223, 2012EXP-1459, J.E. 2012-794, 429 N.R. 109, 321 B.C.A.C. 1, 280 C.C.C. (3d) 423, 344 D.L.R. (4th) 599, 99 W.C.B. (2d) 750, distd

Other cases referred to

Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416, [1993] S.C.J. No. 6, 99 D.L.R. (4th) 350, 146 N.R. 270, J.E. 93-242, 78 C.C.C. (3d) 510, 18 C.R. (4th) 374, 13 C.R.R. (2d) 65, [1993] 1 C.T.C. 111, 93 D.T.C. 5018, 37 A.C.W.S. (3d) 1297, 18 W.C.B. (2d) 355; Canada (Attorney General) v. Lane (2014), 121 O.R. (3d) 721, [2014] O.J. No. 3126, 2014 ONCA 506, 323 O.A.C. 142, 116 W.C.B. (2d) 174; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, 11 D.L.R. (4th) 641, 55 N.R. 241, [1984] 6 W.W.R. 577, J.E. 84-770, 33 Alta. L.R. (2d) 193, 55 A.R. 291, 27 B.L.R. 297, 14 C.C.C. (3d) 97, 2 C.P.R. (3d) 1, 41 C.R. (3d) 97, 9 C.R.R. 355, 84 D.T.C. 6467; Michaud v. Quebec (Attorney General), 1996 CanLII 167 (SCC), [1996] 3 S.C.R. 3, [1996] S.C.J. No. 85, 138 D.L.R. (4th) 423, 201 N.R. 241, 109 C.C.C. (3d) 289, 1 C.R. (5th) 1, 38 C.R.R. (2d) 230, 32 W.C.B. (2d) 15; R. v. B. (S.A.), [2003] 2 S.C.R. 678, [2003] S.C.J. No. 61, 2003 SCC 60, 231 D.L.R. (4th) 602, 311 N.R. 1, [2004] 2 W.W.R. 199, J.E. 2003-2086, 21 Alta. L.R. (4th) 207, 339 A.R. 1, 178 C.C.C. (3d) 193, 14 C.R. (6th) 205, 112 C.R.R. (2d) 155, 58 W.C.B. (2d) 430; R. v. F. (S.), 2000 CanLII 5627 (ON CA), [2000] O.J. No. 60, 182 D.L.R. (4th) 336, 128 O.A.C. 329, 141 C.C.C. (3d) 225, 32 C.R. (5th) 79, 70 C.R.R. (2d) 41, 45 W.C.B. (2d) 93 (C.A.); R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, [1995] S.C.J. No. 81, 128 D.L.R. (4th) 98, 186 N.R. 329, J.E. 95-1941, 64 B.C.A.C. 161, 101 C.C.C. (3d) 193, 42 C.R. (4th) 269, 32 C.R.R. (2d) 273, 28 W.C.B. (2d) 272; R. v. Moore, 2014 ONSC 6621 (S.C.J.); R. v. Spencer, [2014] 2 S.C.R. 212, [2014] S.C.J. No. 43, 2014 SCC 43, 2014EXP-1920, J.E. 2014-1084, EYB 2014-238452, 458 N.R. 24, [2014] 8 W.W.R. 209, 312 C.R.R. (2d) 349, 11 C.R. (7th) 52, 375 D.L.R. (4th) 255, 438 Sask. R. 230, 312 C.C.C. (3d) 215, 114 W.C.B. (2d) 282; R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, 130 N.R. 277, [1992] 1 W.W.R. 97, 83 Alta. L.R. (2d) 193, 120 A.R. 161, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277, 18 C.R.R. (2d) 210, 14 W.C.B. (2d) 266; [page735] R. v. Ward (2012), 112 O.R. (3d) 321, [2012] O.J. No. 4587, 2012 ONCA 660, 296 O.A.C. 298, 267 C.R.R. (2d) 198, 97 C.R. (6th) 377; R. v. Wilson, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594, [1983] S.C.J. No. 88, 4 D.L.R. (4th) 577, 51 N.R. 321, [1984] 1 W.W.R. 481, J.E. 84-70, 26 Man. R. (2d) 194, 9 C.C.C. (3d) 97, 37 C.R. (3d) 97, 11 W.C.B. 200; Viscomi v. Ontario (Attorney General), [2014] O.J. No. 4254, 2014 ONSC 5262 (S.C.J.)

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 1, 7, 8, 24(1)

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52

Criminal Code, R.S.C. 1985, c. C-46, ss. 184.4 [as am.], 193(2)(e), 196(1) [as am.], 487 [as am.], 487.012, 489.1 [as am.], 490(2), (3), (9)(c)

Extradition Act, S.C. 1999, c. 18

Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.), ss. 17 [as am.], 18 [as am.], (2) (a), (b) [as am.], (5), (7) [as am.], 19 [a am.], 20 [as am.], (2), 21 [as am.], 35 [as am.]

APPLICATIONS for declarations of constitutional invalidity.

Joseph Wilkinson and Bradley Greenshields, for applicant Viscomi.

Robert Hubbard and Michael Fawcett, for Attorney General of Ontario.

Nancy Dennison and Richard Kramer, for Attorney General of Canada.

Meara Conway, for applicant Lane.

Joseph Wilkinson and Bradley Greenshields, for applicant Rubin.

CODE J.: —

A. Overview

[1] The three applicants, Marco Viscomi, Brandon Lane and Heinrich Wolfgang Rubin (hereinafter "Viscomi", "Lane" and "Rubin"), have brought three separate originating applications. All three applications raised the same constitutional issue and so they were heard together.

[2] The three applicants seek a declaration of constitutional invalidity, pursuant to s. 52 of the Constitution Act, 1982. They submit that ss. 18 and 20 of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) (hereinafter "MLACMA") violate ss. 7 and 8 of the Canadian Charter of Rights and Freedoms and cannot be saved by s. 1 of the Charter. In addition, they seek certain ancillary remedies that are personal to each applicant. However, the ancillary remedies depend upon success in striking down the legislation pursuant to s. 52.

[3] The central issue on which these applications turn is whether the search and seizure regime found in ss. 18 and 20 of MLACMA (known as "gathering orders" and "sending orders") [page736] violates s. 8 of the Charter because the proceedings are presumptively ex parte. The applicants submit that, at the s. 20 "sending stage", s. 8 requires a presumption in favour of notice to any party with a reasonable expectation of privacy in relation to the seized material that is to be sent abroad by Canadian authorities.

[4] A large seven-volume application record was filed by all of the parties. After a two-day hearing, I reserved judgment. These are my reasons for judgment.

B. Facts

[5] The individual facts of the three applicants' cases are not essential to the argument, as the applications are s. 52 attacks on the legislation. However, some understanding of the facts helps to illustrate why the three applicants have raised the issue concerning a lack of notice under the MLACMA legislation. As will be seen, none of the applicants received notice of the MLACMA proceedings that involved seizures of things in which they claim an interest.

(i) Viscomi's case

[6] Viscomi was the subject of two parallel police investigations in Canada and the United States relating to allegations of Internet luring, child pornography, uttering threats and extortion. All of the relevant events took place over the Internet, in January 2012, with Viscomi allegedly in Ontario and the two child victims at their home in Virginia Beach. The U.S. police interviewed the two victims, examined their computer and then obtained Internet subscriber information in Ontario, without a warrant. The subscriber information pointed to Viscomi as the perpetrator of the offences. It should be noted that, at this time, the law in Ontario did not require a search warrant in order to obtain Internet subscriber information. See R. v. Ward (2012), 2012 ONCA 660, 112 O.R. (3d) 321, [2012] O.J. No. 4587 (C.A.). The law on this point has now changed. See R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, [2014] S.C.J. No. 43, 312 C.C.C. (3d) 215. The police in Ontario then obtained a domestic search warrant and seized Viscomi's computer. As a result of this joint investigation, Viscomi was charged with various offences, both in Ontario and in Virginia.

[7] The ensuing procedural history of Viscomi's case is long and complex. It is set out fully in Viscomi v. Ontario (Attorney General), [2014] O.J. No. 4254, 2014 ONSC 5262 (S.C.J.). In brief summary, the Ontario charges were withdrawn in the Ontario Court of Justice in favour of a U.S. request for extradition which proceeded in this court. While the extradition request [page737] was at its early stages, and before it had been heard, a MLACMA application came on before me, ex parte, seeking the fruits of the Ontario search warrant in aid of the U.S. investigation and the anticipated U.S. prosecution of Viscomi. I granted both a gathering order and a sending order, pursuant to ss. 18 and 20 of MLACMA, in November 2012 and March 2013. The extradition hearing proceeded on the basis of a record of the case ("ROC") that did not include the fruits of the Ontario search warrant. Viscomi was committed by Campbell J. in May 2013. Some months later, in October 2013, the Minister of Justice ordered the surrender of Viscomi to the U.S. authorities.

[8] It was in the course of correspondence with the Minister of Justice, in September 2013, that Viscomi learned for the first time about the ex parte MLACMA proceedings. In May 2014, Viscomi brought an application to reopen the MLACMA proceedings. I heard the application, inter partes, pursuant to the court's inherent jurisdiction to review its own ex parte orders (a so-called "Wilson application"). See R. v. Wilson, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594, [1983] S.C.J. No. 88, 9 C.C.C. (3d) 97, at pp. 123-24 C.C.C. In September 2014, I dismissed the application to reopen and affirmed the ex parte gathering and sending orders. See Viscomi v. Ontario (Attorney General), supra. Viscomi's appeal from Campbell J.'s committal decision and his judicial review of the minister's surrender decision are presently pending in the Court of Appeal.

(ii) Lane's case

[9] The applicant Lane, like Viscomi, was the subject of parallel Canadian and U.S. police investigations relating to his Internet activities in the 2008 to 2010 time period. In late November 2010, police in Ontario executed a domestic search warrant, seized computers and hard drives, and arrested Lane. A few days later, in early December 2010, Lane was arrested on a provisional extradition warrant relating to various child pornography offences in Louisiana. In late February 2011, the extradition proceedings commenced in this court. Unlike in Viscomi's case, the ROC in Lane's case included reference to some of the items seized pursuant to the domestic search warrant executed in November 2010, which presumably had been informally shared with the U.S. authorities.

[10] While the request for extradition was pending in this court, the U.S. authorities initiated a formal request for assistance, pursuant to MLACMA, seeking the fruits of the domestic search warrant. The extradition hearing commenced before Abrams J. with an application, pursuant to the Charter, seeking [page738] to exclude those parts of the ROC that referred to the domestic search and seizures at Lane's premises. Judgment was reserved by Abrams J. on the Charter application on January 24, 2012. A few months later, on April 23, 2012, McWatt J. granted gathering and sending orders pursuant to MLACMA, after an ex parte hearing. A letter from Crown counsel advised McWatt J. that the domestic warrant was the subject of "a substantial challenge by the defence in the context of Mr. Lane's extradition hearing". The fruits of the domestic search and seizures at Lane's premises were eventually delivered to the U.S. authorities on September 25, 2012, pursuant to McWatt J.'s orders.

[11] The reasons for judgment of Abrams J., on the reserved Charter application, were released on September 27, 2012. He granted the application, finding that various Charter violations had occurred during the search of Lane's premises, and he proceeded to exclude that part of the evidence from the ROC. The Canadian authorities immediately asked the U.S. authorities not to examine the evidence seized from Lane's premises, which was now in U.S. hands due to the MLACMA proceedings. On October 10, 2012, the unopened boxes of seized evidence were returned to Canada by the U.S. authorities. On October 12, 2012, counsel for Lane was advised of the ex parte MLACMA proceedings and of the fact that the seized evidence had been returned unopened.

[12] In June 2013, the extradition hearing resumed before Abrams J. An application for a stay of proceedings, alleging abuse of process, was heard and it was granted by Abrams J. in September 2013. The finding of abuse of process focused, in particular, on "mismanagement" of "parallel proceedings" under the Extradition Act, S.C. 1999, c. 18 and under MLACMA. Abrams J. found that "the conduct of counsel for the Minister of Justice and the police in this case amounts to a purposeful tactic or strategy to withhold crucial information from this Court, the [applicant Lane] and his counsel".

[13] The Crown appealed the stay of proceedings and on June 30, 2014, the Court of Appeal allowed the appeal, set aside the stay and ordered a new extradition hearing. The court reversed a number of Abrams J.'s findings of fact. More importantly for the present case, the court found that there was no impropriety in proceeding ex parte at the MLACMA hearing before McWatt J. and in not keeping the extradition judge apprised of the MLACMA proceedings. The court stated [Canada (Attorney General) v. Lane (2014), 121 O.R. (3d) 721, [2014] 3126, 2014 ONCA 506, at paras. 38-44]: [page739]

The extradition judge was of the view that when determining whether there was an abuse of process in the respondent's committal proceeding, he was entitled to consider the conduct of the MLAT proceedings. He said that it was important for the extradition judge to be advised of developments in the MLAT process, and that the two proceedings should proceed "with due regard one for the other" (para. 159).

This view is mistaken. Extradition proceedings and MLAT proceedings are governed by separate statutes, each with its own purpose, procedures and safeguards to ensure that the rights of individuals are protected.

The Mutual Legal Assistance in Criminal Matters Act provides investigative tools to help Canada's treaty partners in criminal investigations. Proceedings under the Act are presumptively ex parte.

Under the gathering and sending regime at issue here, the AG Ontario was required to begin by applying ex parte for a gathering order (s. 17(2)). The court is empowered to impose such terms and conditions on the gathering order as it considers desirable (s. 18(5)), including a condition requiring that any subsequent application for a sending order be made on notice to a target of the investigation or to a person with an interest in the evidence that has been gathered: see Russian Federation v. Pokidyshev (1999), 1999 CanLII 3787 (ON CA), 138 C.C.C. (3d) 321 (Ont. C.A.), at para. 33.

After the evidence is gathered and a report submitted to the court, it is possible to seek a sending order, authorizing the sending of the gathered evidence to the requesting state (s. 20(1)). Unless the court imposes a condition in the gathering order requiring that notice be given before a sending order is sought, the sending order may also be requested ex parte: United States of America v. McAmmond (2005), 2005 CanLII 20 (ON CA), 192 C.C.C. (3d) 149 (Ont. C.A.), at para. 35.

The existence of the Charter motion was a relevant factor for the MLAT judge to consider in deciding whether to give the respondent notice of the sending hearing. It was therefore appropriate that the AG Ontario advised the MLAT judge that the evidence in question had been obtained by a search warrant and that this evidence was the subject of a Charter challenge.

The MLAT proceeding, however, was not relevant to the function of the extradition judge, and accordingly it was not necessary to advise him of its existence. The task of the extradition judge is to determine if there is sufficient evidence to justify committal. The existence of an MLAT request has no bearing on the question of whether sufficient evidence exists to justify committal.

[14] Lane's new extradition hearing has not yet commenced. He had been granted bail in December 2011, during the extradition hearing. However, he was re-arrested on August 14, 2012 and was charged with various breach of recognizance and child pornography offences in Ontario, relating to a computer that was in his possession while he was on bail. He pleaded guilty to these new Canadian offences on January 6, 2014 and was sentenced to nine and a half years' imprisonment by Beaman J. The [page740] U.S. request for MLACMA assistance has not been renewed and the seized evidence remains in Canada.

(iii) Rubin's case

[15] The applicant Rubin's case is much simpler than either Viscomi or Lane, as it still remains at the early investigative stages. Germany is investigating Rubin in relation to allegations that he misappropriated moneys from allegedly insolvent German companies. He resides in Canada and he has not been charged in Germany. The German authorities sought Canada's assistance, pursuant to MLACMA, in order to further their investigation of various fraud, abuse of trust and bankruptcy offences.

[16] Two different forms of investigative assistance were requested by Germany. First, banking records were sought, relating to corporate entities associated with Rubin. A company known as W.R. International Trade Corporation was identified as being linked to Rubin and its corporate banking records were located at Cambridge Mercantile Corporation in Toronto. On July 3, 2014, McWatt J. granted an ex parte gathering order, pursuant to s. 18 of MLACMA, and the banking records were produced. On August 11, 2014, Backhouse J. granted an ex parte sending order, pursuant to s. 20 of MLACMA, and the records were sent to Germany. The Cambridge Mercantile Corporation did not advise Rubin of the seizure of the corporate banking records.

[17] The second form of assistance that Germany sought was to take a statement from Rubin. MLACMA includes a power, pursuant to s. 18(2)(a), to compel testimony under oath in some circumstances. However, the German authorities sought only a voluntary statement from Rubin. Accordingly, the Canadian officer assigned to the case had been in contact with Rubin's counsel, negotiating matters relating to the proposed voluntary statement. The German authorities had indicated that they had "no objection to granting counsel for the accused access to the [seized] records", in conjunction with any questioning of Rubin. On September 3, 2014, some three weeks after the sending order had been granted, the Canadian officer contacted Rubin's counsel in relation to their ongoing negotiations over the voluntary statement and he sent counsel a copy of the gathering order. This is how Rubin learned of the ex parte MLACMA proceedings relating to the corporate banking records.

[18] It can be seen that the three applicants eventually learned of the MLACMA proceedings but they learned after the fact, that is, after sending orders had been granted and [page741] executed. They submit that s. 8 of the Charter requires a regime of presumptive notice, prior to the s. 20 sending order, because of their reasonable expectation of privacy in the seized items.

C. The Legislative Scheme

[19] In my view, there are five separate statutory provisions that are relevant to the constitutional issue that has been raised by the three applicants.

[20] The present applications are focused mainly on the lack of any presumption in favour of notice to parties with a privacy interest at the "sending" stage, that is, at the s. 20 hearing. However, that provision is closely connected to the prior "gathering" stage, where a hearing is conducted pursuant to s. 18. Furthermore, the parties agree that it is the s. 18 "gathering order" that actually amounts to a "search and seizure", whereas s. 20 merely provides for subsequent investigative sharing of the fruits of the prior search and seizure. Finally, it is s. 17 that provides for ministerial approval of a request and that refers to an "ex parte" application, it is s. 19 that provides for a "a report" from the officer who carries out the "gathering", and it is s. 21 that allows the minister to impose "terms or conditions" in relation to the "sending".

[21] All of these provisions are important to an overall assessment of the entire search and seizure scheme, pursuant to s. 8 of the Charter. Accordingly, ss. 17, 18, 19, 20 and 21 are all set out below:

17(1) When the Minister approves a request of a state or entity to obtain, by means of an order of a judge, evidence regarding an offence, the Minister shall provide a competent authority with any documents or information necessary to apply for the order.

(2) The competent authority who is provided with the documents or information shall apply ex parte for an order for the gathering of evidence to a judge of the province in which the competent authority believes part or all of the evidence may be found.

18(1) A judge to whom an application is made under subsection 17(2) may make an order for the gathering of evidence, where he is satisfied that there are reasonable grounds to believe that

(a) an offence has been committed; and

(b) evidence of the commission of the offence or information that may reveal the whereabouts of a person who is suspected of having committed the offence will be found in Canada.

(2) An order made under subsection (1) must provide for the manner in which the evidence is to be obtained in order to give effect to the request mentioned in subsection 17(1) and may [page742]

(a) order the examination, on oath or otherwise, of a person named therein, order the person to attend at the place fixed by the person designated under paragraph (c) for the examination and to remain in attendance until he is excused by the person so designated, order the person so named, where appropriate, to make a copy of a record or to make a record from data and to bring the copy or record with him, and order the person so named to bring with him any record or thing in his possession or control, in order to produce them to the person before whom the examination takes place;

(b) order a person named therein to make a copy of a record or to make a record from data and to produce the copy or record to the person designated under paragraph (c), order the person to produce any record or thing in his possession or control to the person so designated and provide, where appropriate, for any affidavit or certificate that, pursuant to the request, is to accompany any copy, record or thing so produced;

(c) designate a person before whom the examination referred to in paragraph (a) is to take place or to whom the copies, records, things, affidavits and certificates mentioned in paragraph (b) are to be produced; and

(d) order a person named in it to answer any question and to produce any record or thing to the person designated under paragraph (c) in accordance with the laws of evidence and procedure in the state or entity that presented the request.

(3) For greater certainty, under paragraph (2)(c), a judge who makes an order under subsection (1) may designate himself or herself -- either alone or with another person, including another judge -- or may designate another person, including another judge.

(4) An order made under subsection (1) may be executed anywhere in Canada.

(5) An order made under subsection (1) may include any terms or conditions that the judge considers desirable, including those relating to the protection of the interests of the person named therein and of third parties.

(6) The judge who made the order under subsection (1) or another judge of the same court may vary its terms and conditions.

(7) A person named in an order made under subsection (1) may refuse to answer any question or to produce a record or thing to the person designated under paragraph (2)(c) if

(a) answering the question or producing the record or thing would disclose information that is protected by the Canadian law of non-disclosure of information or privilege;

(b) requiring the person to answer the question or to produce the record or thing would constitute a breach of a privilege recognized by a law in force in the state or entity that presented the request; or

(c) answering the question or producing the record or thing would constitute the commission by the person of an offence against a law in force in the state or entity that presented the request. [page743]

(8) If a person refuses to answer a question or to produce a record or thing, the person designated under paragraph (2) (c)

(a) may, if he or she is a judge of a Canadian or foreign court, make immediate rulings on any objections or issues within his or her jurisdiction; or

(b) shall, in any other case, continue the examination and ask any other question or request the production of any other record or thing mentioned in the order.

(9) A person named in an order made under subsection (1) who, under subsection (7), refuses to answer one or more questions or to produce certain records or things shall, within seven days, give to the person designated under paragraph (2)(c), unless that person has already ruled on the objection under paragraph (8)(a), a detailed statement in writing of the reasons on which the person bases the refusal to answer each question that the person refuses to answer or to produce each record or thing that the person refuses to produce.

(10) A person named in an order made under subsection (1) is entitled to be paid the travel and living expenses to which the person would be entitled if the person were required to attend as a witness before the judge who made the order.

19(1) A person designated pursuant to paragraph 18(2) (c) in an order made under subsection 18(1) shall make a report to the judge who made the order or another judge of the same court, accompanied by

(a) a transcript of every examination held pursuant to the order;

(b) a general description of every record or thing produced to the person pursuant to the order and, if the judge so requires, a record or thing itself; and

(c) a copy of every statement given under subsection 18(9) of the reasons for a refusal to answer any question or to produce any record or thing.

(2) The person designated pursuant to paragraph 18(2) (c) shall send a copy of the report to the Minister forthwith after it is made.

(3) If any reasons contained in a statement given under subsection 18(9) are based on the Canadian law of non-disclosure of information or privilege, a judge to whom a report is made shall determine whether those reasons are well-founded, and, if the judge determines that they are, that determination shall be mentioned in any order that the judge makes under section 20, but if the judge determines that they are not, the judge shall order that the person named in the order made under subsection 18(1) answer the questions or produce the records or things.

(4) A copy of every statement given under subsection 18(9) that contains reasons that purport to be based on a law that applies to the state or entity shall be appended to any order that the judge makes under section 20.

20(1) A judge to whom a report is made under subsection 19(1) may order that there be sent to the state or entity the report and any record or thing produced, as well as a copy of the order accompanied by a copy of any statement given under subsection 18(9) that contains reasons that purport to be [page744] based on a law that applies to the state or entity, as well as any determination of the judge made under subsection 19(3) that the reasons contained in a statement given under subsection 18(9) are well-founded.

(2) An order made under subsection (1) may include any terms or conditions that the judge considers desirable, after having considered any representations of the Minister, the competent authority, the person who produced any record or thing to the person designated under paragraph 18(2) (c) and any person who claims to have an interest in any record or thing so produced, including terms and conditions

(a) necessary to give effect to the request mentioned in subsection 17(1);

(b) with respect to the preservation and return to Canada of any record or thing so produced; and

(c) with respect to the protection of the interests of third parties.

(3) The execution of an order made under subsection 18(1) that was not completely executed because of a refusal, by reason of a law that applies to the state or entity, to answer one or more questions or to produce certain records or things to the person designated under paragraph 18(2) (c) may be continued, unless a ruling has already been made on the objection under paragraph 18(8)(a), if a court of the state or entity or a person designated by the state or entity determines that the reasons are not well-founded and the state or entity so advises the Minister.

(4) No person named in an order made under subsection 18(1) whose reasons for refusing to answer a question or to produce a record or thing are determined, in accordance with subsection (3), not to be well-founded, or whose objection has been ruled against under paragraph 18(8)(a), shall, during the continued execution of the order or ruling, refuse to answer that question or to produce that record or thing to the person designated under paragraph 18(2) (c), except with the permission of the judge who made the order or ruling or another judge of the same court.

21. No record or thing that has been ordered under section 20 to be sent to the state or entity mentioned in subsection 17(1) shall be so sent until the Minister is satisfied that the state or entity has agreed to comply with any terms or conditions imposed in respect of the sending abroad of the record or thing.

[22] It can be seen that s. 18 provides for a wide variety of searches and seizures, as well as compelled examinations of witnesses. The particular kind of search and seizure that is at issue in the present applications is a s. 18(2)(b) gathering order. The parties agree that it is akin to a s. 487.012 Criminal Code production order.

D. Analysis

[23] I intend to address the applicants' constitutional attack on the MLACMA legislative scheme in four analytical steps, as follows: [page745]

first, I will set out the binding authority in Ontario which has interpreted MLACMA as requiring presumptively ex parte proceedings;

second, I will set out the common law and Charter jurisprudence holding that the ex parte nature of investigative search and seizure regimes generally does not violate s. 8 of the Charter, due to valid public policy reasons related to the need for confidentiality and expedition;

third, I will address the issue of whether the above principles do not apply in the cross-border context because of the potential loss of domestic remedies;

fourth, I will address the rule in Tse, concerning the s. 8 need for after the fact notice in the context of certain search and seizure regimes.

(i) Judicial interpretation of MLACMA

[24] It is apparent from the above recitation of the facts that the three applicants are all targets or suspects in criminal investigations. It can also be seen from the above provisions of the legislative scheme that MLACMA does not require that any hearing pursuant to s. 18 or s. 20 be conducted ex parte, that is, without notice to the targets or suspects or to anyone else with an interest. The initial application must be filed ex parte, pursuant to s. 17, but the judge has discretion to impose "terms or conditions", pursuant to s. 18(5), and the judge has discretion to hear submissions from "any person who claims to have an interest in any record or thing so produced", pursuant to s. 20(2). Needless to say, the judge could not receive any such submissions unless notice had been given to the interested party at the s. 20 "sending stage".

[25] Accordingly, the parties agree that the legislation permits inter partes hearings but does not presume them or require them. However, the courts have interpreted the legislation as providing for hearings that are "presumptively ex parte". As the Court of Appeal put it in Canada (Attorney General) v. Lane, supra, at para. 40: "The [Mutual Legal Assistance in Criminal Matters Act] Act provides investigative tools to help Canada's treaty partners in criminal investigations. Proceedings under the Act are presumptively ex parte" (emphasis added).

[26] The legal policy basis for holding that MLACMA proceedings are "presumptively ex parte" emerged from a number of earlier decisions of the court. In Canada (Commissioner of Competition) v. Falconbridge Ltd., 2003 CanLII 52144 (ON CA), [2003] O.J. No. 1563, 173 C.C.C. (3d) 466 (C.A.), at para. 9, [page746] Rosenberg J.A. gave the judgment of the court and stated: "Mutual legal assistance is part of an investigatory process that should be dealt with as expeditiously as possible" (emphasis added).

[27] In United States of America v. McAmmond, 2005 CanLII 20 (ON CA), [2005] O.J. No. 8, 192 C.C.C. (3d) 149 (C.A.), at paras. 28-29 and 35, the court dealt with an extradition case involving an allegedly fraudulent cross-border telemarketing scheme. In McAmmond's case, as in Viscomi's and Lane's cases, there had been parallel U.S. and Canadian investigations that resulted in both MLACMA proceedings and Extradition Act proceedings. The MLACMA hearings were conducted ex parte and counsel for McAmmond alleged, on the extradition appeal, that "the transmittal to the United States pursuant to the ex parte sending order, and without any opportunity on his part to challenge the propriety of the search, was contrary to his [Charter] rights". The court rejected this argument. Blair J.A., speaking for the court, stated [at para. 35]:

Nor is there any merit to the complaint concerning the transmittal of the seized materials to the United States pursuant to the "sending order" issued under s. 20 of the Mutual Legal Assistance in Criminal Matters Act. That Act provides both for the gathering of evidence, at the request of a foreign state, by means of a Canadian court order (ss. 17 and 18) and for the sending of such evidence to the requesting state on the order of a Canadian court (s. 20). Section 17 expressly states that the gathering order may be obtained ex parte, subject to any terms and conditions the judge may impose. Although s. 20 does not expressly authorize an ex parte procedure, this court has said that the Act does not require such applications to be brought on notice to anyone: United Kingdom v. Ramsden (1996), 1996 CanLII 1527 (ON CA), 108 C.C.C. (3d) 289 at 308 (Ont. C.A.). In that case Charron J.A. stated (at 308):

In my view, requiring that notice be given in all cases to anyone who may have an interest in the proceedings would be contrary to the intended expediency of the process. The matter is better left to the discretion of the judge seized with any such application who can make any order in this respect as he or she deems fit in the circumstances.

(Emphasis added)

[28] In addition to the passage from United Kingdom v. Ramsden, 1996 CanLII 1527 (ON CA), [1996] O.J. No. 2716, 108 C.C.C. (3d) 289 (C.A.), at paras. 39-40 and 63 quoted above, Charron J.A.'s judgment in that case stated the following, on behalf of the court:

Mr. Ramsden is the target of the investigation in the United Kingdom which led to the requests for assistance in this country. As such, he is undoubtedly interested in the proceedings and centrally connected to the whole process. Although in first instance Mr. Ramsden relied, at least in part, upon the fact that he was the target of the investigation as a basis for obtaining standing in relation to some of the proceedings, he concedes before this Court that this fact, in and of itself, would not serve to give him [page747] standing with respect to any of the proceedings in question. In my view, this concession is a wise one.

Nothing in the Act could be interpreted as giving the target of an investigation automatic standing in any of the proceedings. In fact, the adoption of such a principle would arguably run contrary to the stated objective of the mutual legal assistance scheme to provide the widest measure of mutual legal assistance in criminal matters in a prompt and efficient manner. In this respect, reference may be made to the following provisions from the Treaty between Canada and the United Kingdom:

Article II:

1. The Parties shall, in accordance with this Treaty, grant each other the widest measure of mutual assistance in criminal matters.

2. The provisions of this Treaty shall not give rise to a right on the part of a private party to obtain or exclude any evidence or to impede the execution of the request.

Article VIII:

1. The central authority of the Requested State shall take whatever steps it considers necessary to secure the prompt execution of a request.

Assuming that the court could have exercised its inherent jurisdiction in entertaining Mr. Ramsden's application to set aside the ex parte order, it remained incumbent upon Mr. Ramsden to show that he was a person affected by the order. In my view, his status as target of the investigation could provide him with no greater standing in this respect than it could with respect to his application under the Act. It would be against public policy to allow the subject of a criminal investigation to meddle in the investigatory process on no other basis than his or her status as a target of the investigation. I am not persuaded that this principle should apply differently simply by reason of the fact that allegations of misrepresentation or material non-disclosure are made.

(Emphasis added)

[29] The Court of Appeal has also held in a number of cases that the judge of this court who conducts a s. 20 "sending" hearing must "take into consideration the need to ensure that Canada's international obligations are honoured and to foster cooperation between investigative authorities in different jurisdictions" and must seek to fulfil our "international obligations under various treaties and conventions to assist other states in the investigation and detection of [international] crime". See R. v. Budd, 2000 CanLII 17014 (ON CA), [2000] O.J. No. 4649, 150 C.C.C. (3d) 108 (C.A.), at para. 28, per Rosenberg J.A.; United States of America v. Price (2007), 2007 ONCA 526, 86 O.R. (3d) 762, [2007] O.J. No. 2673, 225 C.C.C. (3d) 307 (C.A.), at para. 17, per Sharpe J.A.; [page748] Russian Federation v. Pokidyshev, 1999 CanLII 3787 (ON CA), [1999] O.J. No. 3292, 138 C.C.C. (3d) 321 (C.A.), at para. 15, per Doherty J.A. One of the treaty obligations that is included in all of the relevant treaties entered into by Canada, pursuant to MLACMA, is a requirement that Canadian authorities maintain the confidentiality of the foreign request for investigative assistance. As the court put it in Canada (Attorney General) v. Lane, supra, at para. 33:

Mr. Kramer and Ms. Rahman [Crown counsel] had a duty by treaty to use their best efforts to maintain the confidentiality of the MLAT application. Paragraph 5 of Article 6 of the Treaty Between the Government of Canada and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters, 18 March 1985, Can T.S. 1990 No. 19 (entered into force 24 January 1990) states: the "Requested State shall use its best efforts to keep confidential a request and its contents except when otherwise authorized by the Requesting State." It was up to the MLAT judge to determine who should receive notice and be given the opportunity to be heard before a sending order is issued: United Kingdom v. Ramsden, 1996 CanLII 1527 (ON CA), [1996] O.J. No. 2716, 108 C.C.C. (3d) 289 (Ont. C.A.), at p. 308 C.C.C.

[30] It can be seen that this strong consistent line of authority from the Court of Appeal, as summarized above, has emphasized the fact that MLACMA proceedings are "investigative". In other words, they are not trial proceedings where the ultimate merits of the case are adjudicated. They are simply proceedings where the police are trying to solve an alleged international crime and to either lay charges or exonerate suspects. As a result of this "investigative" nature of the proceedings, there are strong public policy justifications for an "expeditious" and "confidential" process. Hence, the presumptively ex parte nature of the proceedings.

(ii) Section 8 of the Charter generally does not require inter partes proceedings due to the public policy justifications for ex parte hearings at investigative stages of the criminal process

[31] Aside from the MLACMA context, there is a strong body of common law and Charter jurisprudence holding that investigative search and seizure proceedings generally need to be conducted on an ex parte basis so as not to "frustrate the purpose of the proceeding". The risk that suspects will flee or will hide or destroy evidence, are the most commonly cited reasons that require speed and secrecy during the investigative stages of a criminal matter. Section 8 of the Charter has been held to generally accommodate these state interests.

[32] The law on this point was summarized by Doherty J.A., speaking for the court in R. v. Rodgers (2004), 2004 CanLII 28435 (ON CA), 70 O.R. (3d) 97, [2004] O.J. No. 1073, 182 C.C.C. (3d) 449 (C.A.), at paras. 31-32 and 34. [page749] That case involved a constitutional attack on one of the DNA warrant provisions found in the Criminal Code (relating to data bank warrants for certain convicted and sentenced offenders) which permits, but does require, an ex parte hearing. Doherty J.A. summarized the applicable law governing ex parte search and seizure regimes as follows:

Section 487.055(1) begins with the words "[a] provincial court judge may, on ex parte application". Identical words in s. 487.05, the DNA [investigative] warrant section, have been interpreted as giving the judge a discretion to proceed ex parte or provide notice to an affected party: R. v. F.(S.) (2000), 2000 CanLII 5627 (ON CA), 141 C.C.C. (3d) 225 at 244 (Ont. C.A.); R. v. B. (S.A.), supra, at p. 215. The appellants accept that s. 487.055(1) only permits and does not require an ex parte proceeding. They contend that as there are no circumstances under which proceeding ex parte could be justified, the discretion to proceed ex parte contravenes the principles of fundamental justice.

The court's power to proceed ex parte with motions or applications brought under the Criminal Code is well established where the failure to proceed ex parte would frustrate the administration of justice. For example, s. 487(1), authorizes the issuance of search warrants and makes no reference to proceeding ex parte. It is accepted, however, that judges hearing search warrant applications may proceed, and indeed usually will proceed ex parte: R. v. Canadian Broadcasting Corp. (2001), 2001 CanLII 24044 (ON CA), 52 O.R. (3d) 757 (C.A.), at 766-68. Section 487.055 expressly contemplates proceeding ex parte. In doing so, it does no more than recognize that a court may, as a matter of controlling the effectiveness of its own process and proceedings, allow an application to proceed without notice where the court is satisfied that notice would frustrate the purpose of the proceeding or render the due administration of justice impracticable: R. v. B. (S.A.), supra, at p. 215; Nova Scotia (Attorney General) v. MacIntyre (1982), 1982 CanLII 14 (SCC), 65 C.C.C. (2d) 129 at 147-49 (S.C.C.). The power to proceed ex parte where circumstances warrant is an integral component of the proper administration of justice. That power cannot in and itself run afoul of the principles of fundamental justice.

In determining how the procedural discretion described in s. 487.055(1) should be exercised, the court should begin with the general rule that a person whose right to liberty or security of the person may be affected by a court order, is entitled to notice of the application for that order, the material relied on in support of that application and an opportunity to be heard: Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3 at 24-25. That general rule, however, admits of exceptions. One exception involves applications for court approval of investigative orders such as search warrants. That kind of application is normally brought ex parte because of the very real risk that the target of the application, if given notice, would take steps to frustrate the investigative process, or flee the jurisdiction: R. v. B. (S.A.), supra, at p. 215. The need to move quickly to seek, obtain and implement court orders referable to investigative procedures can sometimes provide an added reason for proceeding ex parte.

(Emphasis added)

[33] On further appeal, the Supreme Court of Canada reversed the result that the Court of Appeal reached in [page750] R. v. Rodgers, supra. However, the court did not disagree with the above passages in Doherty J.A.'s reasons which were based, in part, on earlier Supreme Court of Canada decisions like B. (S.A.). Indeed, the majority judgment of Charron J. in R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, [2006] S.C.J. No. 15, 207 C.C.C. (3d) 225, at paras. 45-47 and 51-55, went farther in explaining when an ex parte search and seizure regime can be reasonable. Charron J. stated the following:

The remaining question is whether the making of s. 487.055 orders without requiring notice to and participation by the convicted offender breaches fundamental fairness. . . .

Mr. Rodgers submits that ex parte hearings are exceptional and limited in their use where some harm could result from the giving of notice. . . .

However, it is important to note at the outset that the fallacy in Mr. Rodgers' argument is that it presupposes that notice and participation are themselves principles of fundamental justice, any departure from which must be justified in order to meet the minimal constitutional norm. As I read his reasons, Fish J. adopts the same reasoning. With respect, it is my view that this is not the proper approach. The constitutional norm, rather, is procedural fairness. Notice and participation may or may not be required to meet this norm -- it is well settled that what is fair depends entirely on the context: see [citations omitted].

The determinative question becomes whether, in all the circumstances, Parliament's choice of a presumptively ex parte hearing is fundamentally unfair. In my view, it is not. Keeping in mind that there is no constitutional guarantee to the most favourable procedure available, it is important to note that the chosen procedure in this case does provide the offender with the following safeguards:

(1) prior judicial authorization must be obtained on written application to a provincial court judge: s. 487.055(1);

(2) the applicant must establish that the targeted offender falls within one of the designated categories of offenders;

(3) the judge has the discretion to give notice to the offender affected by the application;

(4) the judge has the discretion not to order DNA sampling;

(5) in deciding whether to grant the authorization, the judge is statutorily required to "consider the person's criminal record, the nature of the offence and the circumstances surrounding its commission and the impact such an authorization would have on the privacy and security of the person": s. 487.055(3.1);

(6) the judge may require conditions to ensure that "the taking of the samples . . . is reasonable in the circumstances": s. 487.06(2); and

(7) the police must report back in writing to the provincial court judge: s. 487.057(1). [page751]

Further, although there is no appeal from a s. 487.055 order, the decision of the judge is reviewable on certiorari. Without doubt, errors in the record can be made. However, giving the offender notice and an opportunity to be heard is not the only procedure by which any error could be corrected. It is not as if DNA samples can be taken surreptitiously without the knowledge of the targeted person. . . .

For these reasons, I conclude that the DNA data bank legislative scheme meets the constitutional requirements of s. 8 of the Charter.

(Emphasis added)

[34] Two of the earlier DNA warrant cases relied on in Rodgers were R. v. B. (S.A.), 2003 SCC 60, [2003] 2 S.C.R. 678, [2003] S.C.J. No. 61, 178 C.C.C. (3d) 193 and R. v. F. (S.), 2000 CanLII 5627 (ON CA), [2000] O.J. No. 60, 141 C.C.C. (3d) 225 (C.A.). They involved targets or suspects who were under investigation, prior to any trial. Rodgers, on the other hand, involved targets or suspects who had already been convicted and sentenced and whose DNA was sought for the data bank and not for any active investigation. In other words, the provisions at stake in B. (S.A.) and in F. (S.) are the ones that are more relevant to the case at bar, as they involved investigative warrants and not data bank warrants. The need for confidentiality and expedition is much stronger in the context of an investigative warrant. In R. v. B. (S.A.), supra, at para. 56, Arbour J. stated the following, on behalf of a unanimous nine member court:

Finally, the appellant contends that the ex parte nature of the proceedings renders the legislation unconstitutional. Requiring an inter partes hearing for a search warrant that is part of the investigative process could unnecessarily draw out and frustrate the criminal investigation. However, the majority of the Court of Appeal was correct to observe that the reference to ex parte proceedings is not mandatory. Indeed, s. 487.05(1) does not deprive a judge of the option of requiring a contested hearing in a suitable case. An issuing judge may find it advisable to require notice in order to ensure reasonableness and fairness in the circumstances. But, as with most investigative techniques, the ex parte nature of the proceedings is constitutionally acceptable as a norm because of the risk that the suspect would take steps to frustrate the proper execution of the warrant.

(Emphasis added)

[35] In R. v. F. (S.), supra, at paras. 40-42, Finlayson J.A. gave the judgment of the court and stated:

The respondent seemed to think that because the legislation authorized an ex parte application, that this is the only way it could be granted. Clearly, the procedure is permissive.

It is important to remember that applications for search warrants and other judicial warrants traditionally have been heard ex parte to avoid not only the flight of the suspect but also the destruction of what is sought under [page752] the warrant. Even accepting that the destruction or alteration of DNA evidence is not a possibility and that there may be cases where notice might be ordered by the issuing judge, these are not reasons for the court on a constitutional review to start rewriting customary procedures. One must keep in mind that these DNA warrants are an investigative tool. If their use is to be overly restricted by procedural impediments and interlocutory proceedings, the investigation may be frustrated. As Hill J. acknowledges, one of the important justifications for the legislation is that it can serve to protect the innocent. If the police are focussing on the wrong suspect, it is in everyone's interest that he or she is cleared and the search for the true perpetrator continue without delay. These are all considerations properly left to the issuing judge.

Accordingly, there is nothing constitutionally wrong with the legislation as drafted.

(Emphasis added)

[36] It can be seen from the above line of binding authority that presumptively ex parte search and seizure regimes, like ss. 18 and 20 of MLACMA, have repeatedly been found to be constitutional. Especially in the context of investigative warrants, the authorities are clear that the need for speed and confidentiality is presumptively essential to the purposes of an investigative search, namely, to seize relevant evidence and to quickly complete an investigation before the suspects become aware of the investigation and their potential jeopardy. Even after charges have been laid, the s. 7 right to disclosure is subject to a "discretion to delay disclosure" in those cases where "early disclosure may impede completion of an investigation". See R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, 68 C.C.C. (3d) 1, at p. 11 C.C.C. Finally, even when the investigation is complete, and when no charges have been laid, the state retains a "legitimate interest in protecting the secrecy of its investigations". See Michaud v. Quebec (Attorney General), 1996 CanLII 167 (SCC), [1996] 3 S.C.R. 3, [1996] S.C.J. No. 85, 109 C.C.C. (3d) 289, at para. 49.

[37] The applicants seek to distinguish the above authorities on two bases. First, they submit that trans-border crime and MLACMA proceedings are different from domestic crime, and from domestic search and seizure regimes, because the seized evidence will be leaving the jurisdiction. As a result, some domestic remedies for unconstitutional searches may become academic or may no longer be available. Second, they submit that certain ex parte MLACMA searches may remain secret and never be subject to any judicial review. Therefore, a constitutional requirement of after-the-fact notice, as set out in R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, [2012] S.C.J. No. 16, 280 C.C.C. (3d) 423, is engaged. These two arguments are addressed below, in the next two sections of these reasons. [page753]

(iii) Does the trans-border context change the normal

principles relating to ex parte searches?

[38] The suggestion that different constitutional norms apply to trans-border or international criminal investigations, as opposed to domestic criminal investigations, seems intuitively unsound. Trans-border crimes need to be effectively investigated just as much as domestic crimes and our international treaties require investigative co-operation.

[39] Furthermore, the long line of MLACMA case law summarized above (Lane, Falconbridge, McAmmond, Ramsden, Budd, Price and Pokidyshev) has consistently held that the same presumptively ex parte norms and the same policy values that apply to domestic investigations also apply to MLACMA investigations because the need for expedition and confidentiality is the same. I appreciate that none of these cases involved constitutional attacks on the MLACMA legislation. Nevertheless, the Court of Appeal has repeatedly held that there is nothing unfair or unreasonable, on the facts of those cases, about presumptively ex parte MLACMA proceedings. In McAmmond, the court held that there was no Charter violation in failing to give notice and in Lane, the court held that it was properly within the discretion of the judge not to give notice, even when the underlying domestic seizure violated Lane's Charter rights.

[40] In all these circumstances, the argument that different constitutional principles should apply to MLACMA searches, requiring a regime of presumptive notice, is difficult to sustain. Furthermore, the respondent Attorneys General submit that the recent decision of the Supreme Court of Canada in Wakeling v. United States of America, [2014] S.C.J. No. 72, 2014 SCC 72, released three weeks after the applicants filed their facta in the present case, effectively puts an end to the argument. I agree with this submission.

[41] Wakeling was an extradition case where Canadian police had obtained a domestic wiretap authorization and had informally shared the fruits of this search with U.S. authorities, without a formal MLACMA order. In this regard, the facts of Wakeling bear some resemblance to the early stages of the Lane investigation. At his extradition hearing, Wakeling launched a broad s. 7 and s. 8 Charter attack on s. 193(2)(e) of the Criminal Code, which permits the sharing of Canadian wiretaps with foreign investigators. One of Wakeling's arguments was that there is "an obligation to provide notice of the disclosure to the person whose communications were intercepted", prior [page754] to sending Canadian wiretaps to foreign investigators. See Wakeling v. U.S.A., supra, at para. 11.

[42] Although Wakeling did not involve the use of MLACMA proceedings, it can be seen that the case raised a closely analogous constitutional issue to the one in the case at bar. The majority of the court dismissed Wakeling's Charter argument. McLachlin C.J.C. held that a lawful seizure in Canada, for example, pursuant to a domestic warrant, can be shared with foreign authorities without notice, pursuant to common law powers. She reasoned as follows [at paras. 92-93]:

The warrant allows the police to obtain the information and to use it for purposes of law enforcement. The individual whose communications are lawfully intercepted under a valid warrant cannot complain that this unreasonably breaches his privacy. To put it metaphorically, a valid warrant sanitizes the state intrusion on privacy, as long as the execution of the warrant is reasonable and the information is used for purposes of law enforcement.

It has never been suggested that this principle is confined to the use of information in Canada. The reality is that crime does not stop at national borders, and police routinely share information that they have lawfully obtained under warrant with their counterparts in other countries. Provided information is shared for purposes of law enforcement, the individual cannot complain that the sharing violates his s. 8 rights to privacy.

(Emphasis added)

[43] It can be seen that the chief justice held that evidence lawfully seized in Canada, pursuant to a warrant, can be shared with other police agencies for legitimate investigative purposes. Furthermore, she held that this common law principle is not limited to domestic crime as it applies equally to cross-border crime and cross-border investigations.

[44] Moldaver J., speaking for three members of the court, expressly concurred with this part of McLachlin C.J.C.'s reasons. He stated the following [at para. 29]:

In concluding that s. 193(2)(e) is an authorizing provision, I do not quarrel with the Chief Justice that, in general, the police may look to the common law for authority to use the fruits of a lawful search for legitimate law enforcement purposes, including disclosures to foreign law enforcement agencies.

(Emphasis added)

[45] A four member majority of the court has, therefore, held that the common law permits sharing of lawfully obtained domestic evidence with foreign investigative agencies, without notice. If these common law powers do not violate s. 7 or s. 8 of the Charter, it is hard to see how analogous statutory powers under MLACMA could violate the Charter. Section 18 provides for the initial domestic seizure by way of a lawful gathering order (like the wiretap authorization in Wakeling) and s. 20 [page755] provides for the further disclosure of the seizure to the foreign investigators by way of a sending order (like the informal sharing pursuant to s. 193(2)(e) in Wakeling). Indeed, the requirement of a judicial "sending" hearing, pursuant to s. 20 of MLACMA, is far more protective of s. 8 interests than the regime under consideration in Wakeling.

[46] Moldaver J. went on to hold that s. 8 protections extend to the further sharing or disclosure stage of the proceedings, but only in the heightened privacy context of wiretaps. Even in this most invasive s. 8 context, Moldaver J. rejected any requirement of further notice. He reasoned that the only notice of a search and seizure, in the domestic context, comes after-the-fact and even that form of notice is routinely delayed until completion of any ongoing investigation. He held that it would be impractical and unreasonable to require such after-the-fact notice, when the ongoing investigation is a foreign investigation, and that other after-the-fact remedies for unlawful domestic searches would still be available, such as "pressure through diplomatic channels" (as occurred in Lane). Moldaver J.'s reasons, in this regard, are as follows [at paras. 67-69 and 76]:

Pursuant to s. 196(1) of the Criminal Code, an individual who has been wiretapped must be provided with written notification within three months of the time the authorization was given or renewed, subject to judicially authorized extensions. These extensions may be authorized, for instance, where providing notice to the suspect would derail an ongoing police investigation.

While Parliament could perhaps, as a matter of policy, require a second notice relating specifically to a s. 193(2) (e) disclosure, there are inherent difficulties with such a requirement. In order to decide whether to apply for an extension of time in providing notice of disclosure, Canadian authorities would have to keep abreast of all foreign investigations involving the disclosed information. Without such knowledge, it would be impossible for them to know whether providing notice of the disclosure to the suspect would derail or otherwise compromise a foreign investigation.

To require Canadian authorities to stay on top of all foreign investigations that involve the disclosed information is surely unreasonable. It would be highly burdensome, if not entirely impractical. In my view, the absence of a requirement to provide a second notice does not render the wiretap regime unconstitutional.

Likewise, if the information in question is found to have been unlawfully obtained, its use in an extradition proceeding -- or in any other legal venue -- could be challenged. In other contexts, Canada could exert pressure through diplomatic channels. There are various ways that Canada pursues its objectives on the international stage -- founded on the principles of comity and state sovereignty -- which may have application in a particular case.

(Emphasis added) [page756]

[47] If Wakeling holds that s. 8 does not require after-the-fact notice, once the foreign investigation is complete, even in the heightened privacy context of Criminal Code wiretaps, it is hard to see how the applicants can succeed in arguing that s. 8 requires a presumption of before-the-fact notice at the s. 20 "sending" stage of MLACMA.

[48] Mr. Wilkinson, counsel for Viscomi and Rubin, relied heavily on the decision in Canada (Attorney General) v. Foster, 2006 CanLII 38732 (ON CA), [2006] O.J. No. 4608, 215 C.C.C. (3d) 59 (C.A.) in this part of his argument. He submitted that Foster illustrates the fact that a number of parties can and should get notice at the s. 20 "sending" stage, and that the reality of inter partes hearings at the s. 20 "sending" stage in cases like Foster should presumptively extend to anyone with a privacy interest in the things seized.

[49] In my view, Foster does not assist the applicants. The case involved an unusual set of facts. The French authorities were investigating an allegedly fraudulent sale of art works by a "corporate entity and an individual", who are not named in the judgment but who appear to have been based in Europe. The alleged victims of the fraud, who purchased the works of art, were a group of Canadian "collectors". The works of art were in storage with a Canadian gallery, referred to as the "MacLaren". On this set of facts, it can be seen that the two Canadian parties who owned and possessed the works of art (the "collectors" and the "MacLaren") were both "innocent third parties with proprietary interests in valuable works of art", as the court put it. Neither of these Canadian parties was a target or a suspect in the French investigation. See Canada (Attorney General) v. Foster, supra, at paras. 5-7 and 32.

[50] The French authorities obtained a s. 18 MLACMA gathering order, in order to examine the works of art. The "MacLaren", who had custody of the works of art, was necessarily served with the s. 18 order. However, the "collectors" were not given notice and the issue was whether they should have received notice. Rosenberg J.A. gave the judgment of the court and stated the following [at paras. 28-32]:

The collectors submit that they were deprived of the ability to object before being required to produce the plasters, the usual safeguard for an evidence-gathering order. As this court said in Canada (Commissioner of Competition) v. Falconbridge Ltd. (2003), 2003 CanLII 52144 (ON CA), 173 C.C.C. (3d) 466 at para. 19:

There are a number of safeguards inherent in the procedure and explicitly provided in the legislation that protect the target of the order. First, as indicated, the authorities do not seize the material sought.The person against whom the order is made must produce them. This gives the person an opportunity to challenge the validity and scope of the order before a court. Second, the judge who made the order or any [page757] other judge may vary its terms and conditions pursuant to s. 18(6). Third, s. 18(7) provides that the person may refuse to produce a record or thing if producing the record or thing would disclose information that is protected by Canadian laws relating to privilege or non-disclosure of information.

It is not unusual for an evidence-gathering order to be made against someone other than the owner of the record or things. Paragraph 18(2)(b) expressly contemplates such a situation. An order to produce requires persons to produce things in their "possession or control", terms that are not synonymous with ownership. Owners are dependent upon the persons to whom they have entrusted their records or things to either object to production or to notify them so that they may apply for standing and object to the production.

Further, it is difficult to understand how the collectors would have been in a better position if the Attorney General of Canada had applied for a search warrant, the procedure they say should have been followed. The applications for both of these investigative aids are made ex parte and both a warrant and an order are served on the person in control of the things sought to be seized or produced, as the case may be.

The orders in this case were served on the MacLaren and the other custodians of the plasters. The MacLaren had the opportunity to object to producing the plasters or could have notified the owners that the order had been made so that they could object to production. I think that the application judge could have included a term requiring that the owners be served with the order, but his failure to do so was not a jurisdictional error. The judge could reasonably take the view that the MacLaren would know who owned the plasters and would notify them accordingly. If the Attorney General of Canada had proceeded by way of search warrant rather than order, the collectors would have been in no better position; they still would have depended upon the MacLaren to notify them of the warrant's existence.

In any event, the owners did eventually learn of the order. I agree with the collectors that counsel for the Attorney General of Canada should have sent a copy of the order to counsel for the collectors when she was asked to do so. The collectors were innocent third parties with proprietary interests in valuable works of art. They were entitled to a copy of the order upon request.

(Italics of Rosenberg J.A. in original; underlining added)

[51] In my view, there is nothing in Foster that could support the applicants' argument concerning a presumptive right of notice to any party with a privacy interest in the things seized. None of the parties at issue in Foster were targets or suspects in an investigation, like the three applicants in the case at bar. In my view, the judgment in Foster simply stands for the proposition that the party with "possession or control" of the thing to be produced will always and necessarily receive notice. Furthermore, this party in "possession and control" (and the court) may notify any other "innocent third parties with proprietary interest in the things to be seized". There is no suggestion of a broader right or need for notice to any party with privacy interests in the [page758] thing seized, including targets and suspects. Indeed, any such suggestion would contradict the court's decisions in Lane, McAmmond and Ramsden. Furthermore, the evidence in the record before me is that gathering orders under MLACMA "regularly include a clause requiring the third party record holder to keep the existence of the order confidential". This explains why the target of the order often does not inform any other parties about the MLACMA proceedings.

[52] Mr. Wilkinson submitted that there is a reduced need for secrecy at the "sending" stage, once the items have been seized at the "gathering" stage and are in the possession of the police. This is only partially true. Potential loss or destruction of any of the evidence already seized in Canada is not the real concern in MLACMA proceedings. The greater concern is with loss of any evidence that has not yet been seized, with tipping off suspects, associates or accomplices in Canada or abroad, and with the successful expeditious completion of the investigation. These all remain powerful justifications for presumptively ex parte proceedings at the "sending" stage.

[53] For all these reasons, I am satisfied that the normal presumption in favour of ex parte proceedings in domestic searches and seizures applies with equal force to international or trans-border searches and seizures pursuant to MLACMA.

(iv) Does the rule in Tse apply to MLACMA?

[54] The one other authority on which Mr. Wilkinson placed considerable reliance was R. v. Tse, supra, at paras. 81-86. In that case, the Supreme Court of Canada struck down the emergency warrantless wiretap power found in s. 184.4 of the Criminal Code on the basis that it violated s. 8 of the Charter. The crucial failing in the legislation was that it contained no after-the-fact notice provision, such as the notice requirement in s. 196(1) [of the Criminal Code], which applies to almost all other kinds of wiretaps. As a result, persons subjected to warrantless emergency wiretaps who are never charged "may never become aware that their private communications have been intercepted".

[55] It is true that certain MLACMA searches can be hypothesized, where a person with a privacy interest in a seized item might never learn of the seizure. For example, if a personal computer had been left in the custody or control of a friend or a parent, and the friend or parent was ordered to produce it pursuant to MLACMA, and the friend or parent never told the computer's owner about the seizure, and the computer was then sent abroad in aid of a foreign investigation, and the foreign [page759] investigation concluded without any charges being laid, the owner of the computer would "never become aware that their private computer had been seized by the authorities", to paraphrase Tse.

[56] In my view, Tse is of no assistance to the applicants for two reasons. First of all, the above hypothesized fact situation would also be true in the context of a domestic production order issued pursuant to s. 487.012 or a domestic search warrant issued pursuant to s. 487 of the Criminal Code. In either case, the seized or produced computer would be brought before a justice pursuant to s. 489.1 and would be detained pursuant to s. 490, until the conclusion of the investigation. Notice of the detention hearings would be given to "the person from whom the thing detained was seized", pursuant to s. 490(2) and s. 490(3); that is, notice would be given to the parent or the friend, but not to the absent owner. Finally, once the investigation was concluded, with no charges laid, the computer would be returned to "the person from whom it was seized", pursuant to s. 490(9)(c); that is, it would be returned to the parent or friend and not to the owner. In other words, the owner with a privacy interest in the computer would never learn of its production or seizure under the Criminal Code and would never receive after-the-fact notice of the production or seizure. Mr. Wilkinson did not suggest that these provisions of the Criminal Code would violate s. 8 and the rule in Tse.

[57] This leads to the second and more fundamental reason as to why Tse is of no assistance to the applicants. The Supreme Court of Canada unanimously struck down s. 184.4 of the Criminal Code in Tse due to the lack of any after-the-fact notice provision, for the following very specific reasons, per Moldaver and Karakatsanis JJ. speaking for the court [at paras. 83-86]:

After-the-fact notice should not be viewed as irrelevant or of little value for s. 8 purposes. In this regard, we agree with the observations of the intervener Criminal Lawyers' Association (Ontario):

. . . notice is neither irrelevant to s. 8 protection, nor is it a "weak" way of protecting s. 8 rights, simply because it occurs after the invasion of privacy. A requirement of after-the-fact notice casts a constitutionally important light back on the statutorily authorised intrusion. The right to privacy implies not just freedom from unreasonable search and seizure, but also the ability to identify and challenge such invasions, and to seek a meaningful remedy. Notice would enhance all these interests. In the case of a secret warrantless wiretap, notice to intercepted person stands almost alone as an external safeguard.

The jurisprudence is clear that an important objective of the prior authorization requirement is to prevent unreasonable searches. In those exceptional cases in which prior authorization is not essential to a reasonable search, [page760] additional safeguards may be necessary, in order to help ensure that the extraordinary power is not being abused. Challenges to the authorizations at trial provide some safeguards, but are not adequate as they will only address instances in which charges are laid and pursued to trial. Thus, the notice requirement, which is practical in these circumstances, provides some additional transparency and serves as a further check that the extraordinary power is not being abused.

In our view, Parliament has failed to provide adequate safeguards to address the issue of accountability in relation to s. 184.4. Unless a criminal prosecution results, the targets of the wiretapping may never learn of the interceptions and will be unable to challenge police use of this power. There is no other measure in the Code to ensure specific oversight of the use of s. 184.4. For s. 8 purposes, bearing in mind that s. 184.4 allows for the highly intrusive interception of private communications without prior judicial authorization, we see that as a fatal defect. In its present form, the provision fails to meet the minimum constitutional standards of s. 8 of the Charter.

After-the-fact notice, such as that currently found at s. 196(1), is one way of correcting this deficiency; it may not be the only one. Other effective means are no doubt open to Parliament.

(Emphasis added)

[58] As I read the above passages in Tse, the lack of any after-the-fact notice was fatal to s. 8 compliance in that case because it is a warrantless power; it is a wiretap power; and there are no other accountability safeguards. The combination of these three circumstances, resulting in a "secret warrantless wiretap", was described as "exceptional" and "extraordinary". Even then, the court made it clear that after-the-fact notice was only "one way of correcting this deficiency" and that "other effective means are no doubt open to Parliament".

[59] None of this reasoning has any application to MLACMA: the search powers in the statute do not include wiretaps; none of the search powers in the statute are warrantless; and there are a number of additional safeguards against abuse that I will set out below. In Wakeling v. U.S.A., supra, at paras. 64-66, Moldaver J. distinguished Tse on this same basis. He stated the following:

In making these arguments, Mr. Wakeling and the BCCLA rely on Tse, where the constitutionality of s. 184.4 of the Criminal Code was in issue. That provision permitted peace officers to intercept certain private communications without judicial authorization if an officer believed, on reasonable grounds, that the interception was immediately necessary to prevent an unlawful act that would cause serious harm. In striking it down, this Court held that "s. 184.4 falls down on the matter of accountability because the legislative scheme does not provide any mechanism to permit oversight of the police use of this power" (para 11 (emphasis added)).

In my opinion, Tse is distinguishable from the present case. First, the statutory scheme at issue in Tse contained no accountability measures. As I will explain, that is not the case with s. 193(2)(e). [page761]

Second, the impugned provision in Tse involved warrantless searches and seizures. Accountability measures, including after-the-fact notice and reporting requirements, are of particular importance in that context. The emergency wiretap provision, by its very nature, allows the police to conduct a warrantless search in exigent circumstances. No balancing of interests before a judge occurs. In contrast, Mr. Wakeling's private communications were intercepted pursuant to a judicial authorization. Issuing the authorization required the judge to balance Mr. Wakeling's privacy interests with the interests of law enforcement. A variety of procedural safeguards were adhered to. Unlike an emergency wiretap situation, Mr. Wakeling's privacy interests were afforded significant protection at the interception stage.

Also see R. v. Moore, 2014 ONSC 6621 (S.C.J.), at paras. 63-66.

[60] For all the above reasons, the rule in Tse requiring after-the-fact notice in order to salvage s. 8 compliance in certain exceptional statutory contexts has no application to MLACMA.

E. Conclusion

[61] In my view, the "gathering" and "sending" powers found in s. 18 and s. 20 of MLACMA comply with s. 7 and s. 8 of the Charter. Applying the contextual approach to this issue set out by Charron J. in R. v. Rodgers, supra, the following features of the legislation are noteworthy:

first, these are "investigative tools" that generally require confidentiality and expedition, in order to be effective. Accordingly, there is a strong state interest in ex parte proceedings;

second, the investigation of cross-border or international crime is no different than domestic crime in this regard. Indeed, Canada's treaty obligations require confidentiality and expedition;

third, both the s. 18 and s. 20 search and seizure powers require separate and distinct judicial hearings and warrants. The second stage "sending" hearing and warrant is a protection that is not found in the analogous legislative schemes of the United Kingdom, the United States, New Zealand and Australia. In other words, the Canadian legislation is more protective of s. 8 interests than analogous regimes in other free and democratic countries;

fourth, the standard on which the s. 18 warrant issues is the normal constitutional standard of "reasonable grounds" to believe that "an offence has been committed" and that relevant evidence "will be found". See Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, 14 C.C.C. (3d) 97; [page762]

fifth, the judge has discretion not to grant the order, both at the s. 18 and s. 20 stages. See Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416, [1993] S.C.J. No. 6, 78 C.C.C. (3d) 510;

sixth, the judge has discretion to give notice to any interested party. In addition, the person who is the subject of the s. 18 gathering order can object and appear at a hearing pursuant to s. 18(7);

seventh, the judge has discretion to impose "terms or conditions";

eighth, the s. 18 and s. 20 hearings are based on a written record and the person who carries out the gathering order prepares a written report, all of which are preserved as court records;

ninth, the minister controls both the front end and back end of the process, pursuant to ss. 17 and 21, and can impose additional "terms or conditions";

tenth, the MLACMA is based on treaty obligations that are reciprocal. As a result, Canada can exert effective political and diplomatic pressure when there is a risk of misuse or abuse in relation to evidence sent by Canada;

eleventh, the treaties and the sending orders place limits on the use to which the evidence can be put;

twelfth, there are a number of available remedies when MLACMA evidence is used against a suspect or an accused, including a right of appeal pursuant to s. 35 of the MLACMA. This remedial aspect of the scheme will be further discussed below.

[62] It can be seen that the MLACMA legislation contains a broad array of s. 7 and s. 8 safeguards that easily satisfy the contextual test set out in Rodgers. The applicants' argument focuses mainly on the fact that one remedy is lost, when the person with a privacy interest in the seized thing is not given notice and is, therefore, unable to appear at a s. 20 hearing and cannot oppose the sending order on the basis of an alleged violation of his Charter rights. Lane is the best illustration of this scenario. The one lost remedy is that persons like Lane are deprived of an opportunity to persuade the judge that the seized items ought not to be sent abroad, due to a serious Charter violation.

[63] Accepting that this one remedy may be lost in some cases, at least temporarily, it does not render the legislation [page763] constitutionally deficient in my view. To focus on the temporary loss of one preventive remedy, in some cases, is to insist on "the most favourable procedure available" rather than on "the minimal standard mandated by the Charter", as Charron J. put it, speaking for the majority in Rodgers, supra, at paras. 49 and 51 [emphasis in original]. The proper approach is to look at all 12 features of the legislation, summarized above, and ask whether "Parliament's choice of a presumptively ex parte hearing is fundamentally unfair", again quoting Charron J. in Rodgers, supra, at para. 51. In my view, it is not. In any event, the temporary loss of this one preventive remedy in some cases is compensated for by the broad array of after-the-fact remedies that remain available. In particular, the suspect or accused against whom MLACMA evidence is to be used, retains the following remedies:

first, a Wilson application can be brought, seeking to reopen the s. 20 hearing on an inter partes basis, as Viscomi did in the present case;

second, a s. 35 appeal can be brought against the MLACMA order, if necessary with an application to extend time;

third, an application in the nature of certiorari can be brought, seeking to quash any underlying domestic search warrant on which the MLACMA order depends (a remedy that was available to both Viscomi and Lane);

fourth, an originating application can be brought, seeking a declaration of violation of Charter rights;

fifth, a civil lawsuit can be brought against the police and the Crown, alleging any violation of Charter rights and seeking civil remedies;

sixth, remedies may be available in extradition proceedings (for example, Lane sought remedies excluding the evidence in the ROC that had been gathered in Canada and Viscomi sought remedies from the Minister of Justice arising from the MLACMA proceedings);

seventh, diplomatic and/or political pressure can be exerted, seeking the return of evidence already sent abroad, if it is subsequently determined that the evidence was obtained on the basis of some serious Charter violation. This potential remedy was referred to by Moldaver J. in Wakeling and it proved effective in Lane; [page764]

eighth, and last, remedies may be available in the foreign proceedings, based on the foreign court's rules of evidence. In this regard, it should be remembered that in this country R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, [1995] S.C.J. No. 81, 101 C.C.C. (3d) 193 allows some scope for arguments that evidence gathered abroad may be excluded pursuant to s. 24(1) [of the Charter] if it causes unfairness in a domestic trial. Analogous principles may exist in the evidence law of some foreign courts.

[64] For all these reasons, I am satisfied that the MLACMA legislative scheme, with its presumptively ex parte proceedings, does not violate ss. 7 and 8 of the Charter. Accordingly, the three applications are dismissed.

Applications dismissed.

End of Document