Court File and Parties

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

Counsel: Jeffrey G. Johnston, for the Respondent Scott Hutchison, for the Applicants

Heard: November 1, 2018

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

Amended Endorsement

The text of the original endorsement was corrected on November 5, 2018 and the description of the correction is appended.

Maranger J.

[1] This was an application for a temporary stay of a Sending Order issued on March 30th 2016 pursuant to section 15(1) of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c.30 (4th Supp.) (“the Act”).

[2] The fairly extensive history of this matter can be summarised as follows:

• On March 30, 2016, I issued a Sending Order under section 15(1) of (“the Act”). The decision followed two hearings: (1) to obtain disclosure of the Request to Send and cross-examine the officer on the search warrant; and (2) the sending hearing itself.
• See: Attorney General of Canada-Belgium v. Suthanthiran, 2015 ONSC 3573, 2015 O.J. No. 3352, and Attorney General of Canada-Belgium v. Suthanthiran, 2016 ONSC 2162.
• An appeal of the Sending Order decision was dismissed by the Ontario Court of Appeal on May 1, 2017. See: Belgium v. Suthanthiran, 2017 ONCA 343, 347 C.C.C. (3d) 120. Leave to appeal to the Supreme Court of Canada was denied on January 18, 2018. See: Suthanthiran v. Belgium (2018), S.C.C. No 256.
• On August 8, 2018 I dismissed an application to re-open the sending hearing: See: Belgium v. Suthanthiran, 2018 ONSC 4787. On September 20th, 2018 leave to appeal that decision was denied by the Ontario Court of Appeal.

[3] The request for a temporary stay is based upon the Applicant seeking the opportunity to make submissions to the Minister of Justice concerning terms and conditions they wish imposed upon the sending order. The terms and conditions sought relate to the Applicants wanting protection from disclosure of trade secrets and intellectual property rights.

[4] As Justice McFarlane indicated in her decision to deny leave to appeal dated September 20, 2018 “this is the end of the proverbial road.” For the reasons that follow I would dismiss the application.

[5] The test to determine whether to grant a temporary stay/injunction is the three-part test set out in the decision of RJR Macdonald Inc. v. The Attorney General of Canada, [1994] 1 S.C.R. 311; First, the Applicant must demonstrate a serious question to be tried; Second, the Applicant must convince the court that they will suffer irreparable harm if the relief is not granted and; Third, the Applicant must demonstrate that the balance of convenience, and in particular the public interest, supports the granting of a stay.

[6] The basis for their being serious question to be tried is predicated on there being a legitimate fact-based concern that the intellectual property and trade secrets of the applicant will be compromised if certain terms and conditions are not set out in the sending order. The previous findings of this court and of the Court of Appeal have held that there was no evidentiary foundation for this concern.

[7] In any event article 17 of the Treaty provides the very protection sought by the applicant. It states “the requesting State shall not disclose or use information or evidence furnished for purposes other than those stated in the request without the prior consent of the central authority of the requested state.” The treaty is the protection. As Justice Watt indicated in the Ontario Court of Appeal decision dated May 1, 2017 “the treaty partners exchange promises to fulfil their respective obligations as requesting and requested states. The mere existence of the treaty attests to the belief of each partner that the other will discharge his obligations and conduct itself in accordance with those obligations”.

[8] The Applicants have not demonstrated that they will suffer irreparable harm if a stay is refused. There is no evidence to ground the concern that the evidence once in the hands of the Belgium authorities will be misused.

[9] Finally it is doubtful that there is a mechanism or the jurisdiction to make representations to the Minister. There is nothing in the legislation that supports the proposition that submissions can be made. The law is settled that the Act is a complete code for the conduct of mutual legal assistance proceedings: See Canada (Attorney General) v. Foster (2006), 215 C.C.C. (3d) 59 (Ont. C.A.).

[10] Therefore the application is denied.

Maranger J.

Released: November 5, 2018

Appendix

November 5, 2018: At para. 2 of this endorsement the word "matter" has been removed. “The fairly extensive matter history of this matter can be summarised as follows:”