Court File and Parties
COURT FILE NO.: --
DATE: 2020-09-28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
WEN CHING TSE, TROPICAL GRILL INTERNATIONAL INC., ASIAN WOK RESTAURANT INC. Applicant
Counsel: Samir Adam, for the Respondent Duane Milot/Igor Kastelyanets, for the Applicant
HEARD: In Writing
REASONS ON FORUM CONVENIENS
VARPIO J.
OVERVIEW
[1] This is an application by the Federal Crown to change the venue of Ms. Wen Ching Tse, Tropical Grill International Inc. and Asian Wok Restaurant Inc.’s substantive application. The substantive application seeks to attack a search warrant executed primarily in North Bay, Ontario. At this point, no charges have been laid by the PPSC or by the CRA. The substantive application has been filed in North Bay, Ontario. The Federal Crown wishes for the matter to be heard in Ottawa. For the reasons that follow, I find that North Bay is the forum conveniens.
FACTS
[2] On February 26, 2020, Justice of the Peace T. Patch, sitting in Ottawa, Ontario, authorized five search warrants as part of an Income Tax Act investigation into Ms. Tse. The warrants were executed on the same day at three locations in North Bay and two locations in Toronto. It appears from the materials filed that the locations in North Bay were two restaurants operated by Ms. Tse as well as properties associated with accounting firm(s) in the Toronto area.[^1]
[3] On May 22, 2020, Ms. Tse filed an application for the interim impoundment of all things seized pursuant to the warrants authorized on February 26, 2020. Ms. Tse also filed an application for leave to cross-examine the affiant as a precursor to an application for certiorari. The applications were served upon the Provincial Crown Attorney’s office in Toronto and filed in the Superior Court of Justice in Toronto. I note that Ms. Tse’s lawyers are located in Toronto.
[4] PPSC Ottawa was advised of Ms. Tse’s application and, on June 16, 2020, the assigned Federal Crown emailed Ms. Tse’s counsel to inform them that the application had been served upon the wrong Crown’s office and in the wrong city. Ms. Tse’s counsel was asked to serve PPSC Ottawa and to re-file the application in Ottawa.
[5] On June 23, 2020, Ms. Tse refiled the applications in North Bay. On June 24 and 29, 2020, the Federal Crown emailed Ms. Tse’s counsel to request the refiling of the application in Ottawa. Ms. Tse declined so to do.
[6] On July 9, 2020, counsel advised the Federal Crown that the application was under review by the Superior Court in North Bay. That same day, the Federal Crown emailed the Superior Court trial coordinator in North Bay to advise them that the parties were not ad idem with respect to the proper forum for the application.
[7] On July 20, 2020, the Crown served Ms. Tse with an application pursuant to section 490(2) and (9.1) of the Criminal Code for the Further Detention of Things Seized. No date has been set but this application, as per the PPSE, it is scheduled to be heard in Ottawa. This hearing pertains to the same warrants and seized items that are the subject of Ms. Tse’s applications.
[8] The investigation into Ms. Tse is ongoing as per the PPSE.
THE LEGISLATION
[9] A writ of certiorari is an extraordinary remedy governed by Part XXVI of Code.[^2] The Federal Crown and Ms. Tse are ad idem that the Ontario Superior Court of Justice has the jurisdiction to determine such matters. The dispute arises over whether Ottawa or North Bay is proper forum for Ms. Tse’s application.
[10] In Ontario, the procedure to be followed when filing an application in the Superior Court of Justice is set out in The Criminal Proceedings Rules for the Superior Court of Justice[^3] (the Rules). The relevant provisions are listed below:
Rule 6.02 states:
Applications shall be made to a judge of the court in the county, district or region where the criminal proceedings to which the application relates are being or are to be heard.
Rule 6.06(1) states:
Unless otherwise ordered by a judge of the court, an application to which this rule applies shall be heard and determined by a judge of the court in the county or district in which the trial or other proceedings to which the application relates are being or are to be held.
Rule 43.01 states:
This rule applies to applications in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition, including applications to quash a subpoena, warrant, conviction, inquisition or other order or determination and applications for discharge of a person in custody.
Rule 43.02 states:
Applications made under rule 43.01 shall be made to a judge of the court in the region, county or district in which the proceedings to which the application relates have been, are being or are to be taken.
ANALYSIS
[11] To determine forum conveniens, I must first determine where the proceedings have been originated in this matter. Put another way, did the proceedings originate with the issuance of the warrant in Ottawa, or did the proceedings originate with the filing of the application in North Bay?[^4] I am aware of no Ontario authority dealing with whether a “proceeding”, as per the Rules, is commenced by the issuance of a warrant.
[12] The Quebec courts have dealt with tax matters akin to those before me. In R. v. Accurso, [2019] Q.J. No. 5142 at paras 168 – 171, Weitzman J.Q.C. of the Court of Quebec (Criminal and Penal Division) dealt with a fraud trial whereby the accused attacked the CRA’s ability to share information with the RCMP. Some of the information shared had been disclosed in an ITO sworn in support of a production order. Inter alia, the accused attacked the CRA’s ability to share that information as contemplated by section 241 of the Income Tax Act:
Provision of information
241 (1) Except as authorized by this section, no official or other representative of a government entity shall
(a) knowingly provide, or knowingly allow to be provided, to any person any taxpayer information;
(b) knowingly allow any person to have access to any taxpayer information; or
Communication where proceedings have been commenced
(3) Subsections 241(1) and 241(2) do not apply in respect of
(a) criminal proceedings, either by indictment or on summary conviction, that have been commenced by the laying of an information or the preferring of an indictment, under an Act of Parliament…
[13] The court thus had to determine whether the swearing of an ITO in support of a production order constituted a criminal proceeding. In determining that the swearing of an affidavit in support of a production order did constitute a criminal proceeding per se, Weitzman J.Q.C. cited the Quebec Court of Appeal as follows:
In Allaire [Agence du revenu du Canada v. Allaire, 2015 QCCA 1185], a production order for documents was obtained pursuant to section 487.012(1) of the Criminal Code, in the course of a fraud investigation. The order required the CRA to provide taxpayer information in the context of the application of the Excise Act, 2001 (EA).134 Although the decision deals with the application of subsection 211(4) of the EA,135 the Court of Appeal notes that it is essentially the same as subsection 241(3) of the ITA.136
The Quebec Court of Appeal held that the production order was a "legal proceeding" and that it related to the administration and the execution of the EA,137 thus the exception applied, allowing the CRA to share the taxpayer's information.
The plain meaning of the term "legal proceeding" implies a proceeding that is actually before a court. This is consistent with the definition found in Black's Law Dictionary (10th ed.) which read as follows:
Legal proceedings: Any proceeding authorized by law and instituted in a court or tribunal to acquire a right or to enforce a remedy.
This view is also consistent with finding that pre-charge judicial authorisations, such as warrants or production orders, as in Allaire, fall within the definition of legal proceedings.
[14] Although the Quebec Court of Appeal’s ruling in Allaire is not binding upon me, it provides clear authority for the notion that, prior to the laying of a criminal charge, the issuance of a production order (or, similarly, the issuance of a search warrant) is a criminal legal proceeding for the purposes of certain statutes like the Income Tax Act. I agree with, and adopt, the logic in Accurso. Accordingly, an issuance of a search warrant constitutes a pre-charge criminal proceeding and is thus captured by Rules 6.02 and 43.02 of the Criminal Rules. Pursuant to those rules, applications seeking prerogative writs that attack a warrant (prior to the laying of any criminal charges) should presumptively occur in the jurisdiction where that warrant was issued.[^5] As noted earlier, the warrant in this case was issued in Ottawa.
[15] The matter does not, however, end there. Change of venue applications are routinely heard by this court, and implicit within the parties’ submissions before me, is the fact that both the Federal Crown and Ms. Tse want me to determine the forum conveniens for Ms. Tse’s application.
[16] I am unaware of any rule, legislation or jurisprudence that governs a change of venue application for pre-charge proceedings since s. 599(1) of the Criminal Code of Canada and the jurisprudence interpreting same deal with change of venue for a trial.
[17] Dambrot J. dealt with a circumstance in R. v. Vaughan, [2002] O.J. No. 5237 (Ont. S.C.) that is instructive. In Vaughan, the applicant (Mr. Vaughan), had previously been found the equivalent Not Criminally Responsible for a sexual assault and was detained in the Penetanguishene Mental Health Centre (“PMHC”) for 21 years. Mr. Vaughan brought an application in Toronto (where his trial was presumably held) seeking a variety of orders in the nature of mandamus and/or certiorari with respect to his detention.
[18] Another justice had previously refused a Crown motion to transfer the matter to Simcoe, the judicial seat where the Penetanguishene facility is located. Dambrot J. examined the particular facts of the case before him to determine whether it was in the interests of justice that the matter be continued in Toronto. He considered the fact that Mr. Vaughan was subpoenaing a number of witnesses and records from the PMHC, that Mr. Vaughan was detained in the PMHC and would require travel to and from PMHC each day and that staff member(s) would have to accompany Mr. Vaughan. At para. 13, he concluded that “when one starts with the fact that the matter should have been brought in Simcoe and when added to it is the fact that having it heard in Toronto potentially inconveniences witnesses and requires expenses for the transportation of both the respondent and considerable material to Toronto, there is little to be said for this matter staying in Toronto”. Thus, Dambrot J. engaged in a balancing of convenience to determine the forum conveniens.
[19] I adopt Dambrot J.’s reasoning and find that in order to determine the forum conveniens of Ms. Tse’s application, I ought to engage in a balancing of convenience to determine whether the presumption in favour of hearing Ms. Tse’s application in Ottawa (where the proceedings originated) has been rebutted.
[20] In this regard, the PPSC argues that the information to obtain the warrants was filed in Ottawa. The warrants were judicially authorized in Ottawa. An application for the further detention of items seized during the execution of the warrants is slated to be heard in Ottawa. Ottawa has been the site of every proceeding associated with the investigation of Ms. Tse. If the applicant is successful it will cross-examine the affiant who resides in Ottawa. The Applicant submits, therefore, that Ottawa is the proper forum for the Respondent’s application.
[21] With respect to police convenience, however, Di Luca J. of this court in R. v. Davis, 2018 ONSC 4630 addressed a situation where the applicant accused brought a variety of writs seeking to prohibit an Ontario Court Justice in a given courthouse from hearing a case because the offence charged occurred entirely in another judicial centre. Di Luca J. stated at para. 30 that “[w]hile I need not determine the issue in this instance, it strikes me that in ordinary or routine cases, mere convenience to the police will not be a sufficient basis upon which a decision on venue is made”.
[22] Counterbalancing the convenience to police and the prosecutor in the case before me are the following factors:
a. Ms. Tse resides in North Bay;
b. Her business operations in North Bay were searched;
c. Three of the five locations searched are in North Bay; and
d. Ms. Tse has no apparent connection to Ottawa and would presumably have to travel to Ottawa to attend court.
[23] I accept the Federal Crown’s submissions that, assuming Ms. Tse is ultimately charged, charges could be laid in North Bay or other areas of the province. The Federal Crown submitted:
The Income Tax Act does not limit the trial of an accused to the venue of the offence as suggested by the Respondent. Ms. Tse’s trial could reasonably be set anywhere she was found or apprehended within Ontario. If the CRA were to discover that Ms. Tse had business dealings in Timmins or further tax violations were uncovered in Kenora, her trial could be held in any of those venues. At first blush, North Bay may seem like the only possible venue for the trial of Ms. Tse, but it is too early in the investigation to make that assumption.
[24] Despite the Federal Crown’s submissions, Ms. Tse has rebutted the presumption that the substantive application ought to be heard in Ottawa and, instead, the application shall be heard in North Bay. Undoubtedly, there is police and prosecutorial convenience in having the matter heard in Ottawa however, as noted in Davis, police convenience is a mitigated factor. Conversely, the factors auguring in favour of hearing the matter in North Bay are powerful especially when I consider the factors described in paragraph 22 above. Indeed, if “[a]t first blush, North Bay may seem like the only possible venue for the trial of Ms. Tse”, absent powerful reasons to the contrary which do not exist here, the balance of convenience clearly favours hearing the substantive application in North Bay. This is especially true when I consider the resources of the state.
ORDER
[25] The Federal Crown’s application for change of venue is therefore dismissed. I hereby Order that Ms. Tse’s application be heard in North Bay. I make no findings with respect to any other matters including the forum conveniens of the retention hearing or the forum conveniens of any putative future trial.
Varpio J.
Released: September 28, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and –
WEN CHING TSE, TROPICAL GRILL INTERNATIONAL INC., ASIAN WOK RESTAURANT INC.
REASONS ON forum conveniens
Varpio J.
Released: September 28, 2020
[^1]: For sake of simplicity, I will collectively refer to Ms. Tse and the restaurants as “Ms. Tse” unless, (a) otherwise specified; or (b) in situations where by clear inference I am referring to Ms. Tse in her personal capacity. [^2]: Section 774 of the Code. [^3]: SI/2012-7; Rule 1.02; s.482 of the Code. [^4]: I note that in situations where criminal or quasi-criminal charges are laid, it is clear that the proceedings originate in the venue where the Crown chooses to file the information and/or direct indictment. [^5]: I make no findings with respect to the issue of telewarrants.