Court File and Parties
Court File No.: CR 22-70000184 Date: 2023-03-28 Ontario Superior Court of Justice
Between: His Majesty The King – and – Anh Chiem
Counsel: B. Richards and C. Langdon, for the Crown N. Lutes, for Mr. Chiem M. Schwarzentruber, for the Law Society of Ontario
Heard: 2 February 2023
Before: S.A.Q. Akhtar J.
Ruling on the Production Order
Factual Background
1The applicant, Anh Chiem, is charged with the first degree murder of Scott Rosen, a lawyer who was representing the applicant’s son in law in litigation against her.
2The Crown’s allegation is that on 18 December 2020, the applicant parked a U-Haul pickup truck in Mr. Rosen’s office underground parking garage. When the applicant saw Mr. Rosen walking into the lot, she drove at high speed towards him, pinning him against a wall, and then reversed back into him after he had fallen to the ground. The applicant is alleged to have driven off leaving Mr. Rosen to be found by the authorities.
3Subsequent investigation revealed that the applicant had filed a complaint against Mr. Rosen to the Law Society of Ontario (“the LSO”) which had been dismissed. Police also discovered that the applicant had rented a white U-Haul truck several days before the murder. When it was returned, the truck was damaged.
4In January 2021, the LSO advised the Crown that the applicant’s complaints regarding Mr. Rosen could not be disclosed without the consent of all parties, or, in the alternative, a court order. In May 2021, Mr. Rosen’s estate requested disclosure of the complaints, but received only documents created by Mr. Rosen and correspondence from the LSO to the deceased. When the estate asked for the applicant’s complaints, it was told that s. 49.12(1) of the Law Society Act (LSA) prohibited the LSO from providing that material.
5At a judicial pre-trial on 22 April 2022, the possibility of a production order was mooted. The Crown corresponded with the LSO, between 11-13 October 2022, and suggested the LSO apply for a court order permitting disclosure of the complaints. The LSO indicated it would consider the matter. Nothing, however, was done.
6On 1 November 2022, the Crown wrote to the LSO asking whether it intended to seek a court order permitting disclosure of the complaints. The LSO responded that the matter was still under consideration. Some two weeks later, the Crown and LSO counsel met to discuss the matter. On 25 November 2022, counsel for the LSO wrote to the Crown informing them he was “writing to confirm that we are prepared to proceed with a production order to be served upon the LSO in respect of copies of the Chiem complaints and correspondence”. On 28 November 2022, the Crown told the LSO that it would be “proceeding by way of a production order”.
7The Crown made good on its intention. On 7 December 2022, Justice of the Peace Cruz issued a production order compelling the LSO to provide the applicant’s complaints made against Mr. Rosen (“the Order”). A copy of the Order was emailed to the LSO who responded by providing four compressed password protected files. However, the password needed to access the files was withheld.
8On 11 January 2023, pursuant to a discussion at a judicial pre-trial held the day before, Forestell J. issued a subpoena duces tecum ordering the LSO to bring the subject matter to court. The LSO agreed to appear in court with the documents on 18 January 2023. On 17 January 2023, the LSO wrote to the Crown confirming that it would not take issue with the validity of the Order.
9However, on 18 January 2023, the applicant filed an application to quash the Order.
10I heard argument on this matter on 2 February 2023, and following submissions, I dismissed the application. These are my reasons for doing so.
The Applicant’s Grounds
11The applicant argues:
- She has standing to challenge the Order on the basis that she was given actual notice of proceedings. The applicant submits that this is an appropriate case to allow her to make submissions to the court.
- The Order is invalid because it was obtained from a justice, not a judge, and that this contradicts provisions in the LSA which contemplates that only a Superior Court judge may consider the appropriateness of disclosing protected materials.
- The Order had no safeguards or built-in considerations which reflect the criteria of the LSA.
- The subject matter of the Order contains materials that the LSO is unable to legally disclose.
The Statutory Sections
12Section 487.014 of the Criminal Code governs the issuance of production orders and reads as follows:
487.014 (1) Subject to sections 487.015 to 487.018, on ex parte application made by a peace officer or public officer, a justice or judge may order a person to produce a document that is a copy of a document that is in their possession or control when they receive the order, or to prepare and produce a document containing data that is in their possession or control at that time.
(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds to believe that (a) an offence has been or will be committed under this or any other Act of Parliament; and (b) the document or data is in the person’s possession or control and will afford evidence respecting the commission of the offence.
(3) The order is to be in Form 5.005.
(4) A person who is under investigation for the offence referred to in subsection (2) may not be made subject to an order.
13After receiving notice of the issuance of a production order, the target may apply to revoke or vary the order under s. 487.0193 of the Code which reads as follows:
487.0193 (1) Before they are required by an order made under any of sections 487.014 to 487.018 to produce a document, a person, financial institution or entity may apply in writing to the justice or judge who made the order — or to a judge in the judicial district where the order was made — to revoke or vary the order.
(2) The person, institution or entity may make the application only if they give notice of their intention to do so to a peace officer or public officer named in the order within 30 days after the day on which the order is made.
(3) The person, institution or entity is not required to prepare or produce the document until a final decision is made with respect to the application.
(4) The justice or judge may revoke or vary the order if satisfied that (a) it is unreasonable in the circumstances to require the applicant to prepare or produce the document; or (b) production of the document would disclose information that is privileged or otherwise protected from disclosure by law.
The Issues
Standing
14The applicant argues that since she received notice of the Order, she should be allowed to challenge its validity.
15The Crown opposes standing, arguing that the Code does not permit a party other than the holder of the records to be produced to be able to vary the Order.
16I agree with the Crown.
17The wording of s. 487.0193 makes clear that only the party ordered to produce the document may apply to have the production order revoked or varied. I see nothing in the section that permits a third party to make that application.
18In this case, the LSO would be entitled to make an application to revoke or vary the Order. However, they have chosen not to do so and confirmed their intention to produce the documents subject to any other court order.
19Contrary to the applicant’s claims, notice of a production order application does not amount to the right to challenge the order. Whist there is no explicit restriction on the Crown or defence on the potential to participate in a challenge to a production order should one be made, those proceedings can only be initiated by the party ordered to produce the documents. Only that party can seek revocation and/or variation. In the absence of an LSO challenge to the Order, the applicant has no standing to initiate proceedings on her own.
20Moreover, I do not agree that there are efficiency and policy reasons for permitting the applicant to initiate a challenge, rather than wait until after the documents have been produced. At this stage, the content of the documents is unknown.
21If the applicant is correct, all parties - other than the LSO - would be proceeding in a vacuum. Any challenge to the disclosure of the documents would be meaningless without knowing their content and relevance. It may be that the application judge would have to review the documents and provide a summary so that each party could make submissions. This is hardly an efficient way to proceed.
22Since the real question raised by the applicant is one of admissibility, that is a question best answered after the documents have been produced. At that stage, knowledge of the contents of the documents would allow for full argument to be made by the parties and enable the presiding judge to render a judgment based on all the facts.
23For the foregoing reasons, I conclude the applicant has no standing to challenge the issuance of the Order.
24For the sake of completeness, I will deal with the applicant’s remaining arguments.
Should the Order Be Read in Accordance with the LSA?
25The applicant argues that s. 487.014 of the Code should be read alongside the criteria set out in the LSA, including the need for a prior judicial authorisation from a Superior Court judge rather than a justice.
26Section 41.13 of the LSA reads as follows:
49.13 (1) The Society may apply to the Superior Court of Justice for an order authorizing the disclosure to a public authority of any information that a bencher, officer, employee, agent or representative of the Society would otherwise be prohibited from disclosing under section 49.12. 1998, c. 21, s. 21; 2002, c. 18, Sched. A, s. 12 (2).
(2) The court shall not make an order under this section if the information sought to be disclosed came to the knowledge of the Society as a result of, (a) the making of an oral or written statement by a person in the course of the audit, investigation, review, search, seizure or proceeding that may tend to criminate the person or establish the person’s liability to civil proceedings; (b) the making of an oral or written statement disclosing matters that the court determines to be subject to solicitor-client privilege; or (c) the examination of a document that the court determines to be subject to solicitor-client privilege.
27The applicant points specifically to s. 49.12 of the LSA which prohibits disclosure of material which “may tend to criminate the person or establish the person’s liability to civil proceedings” or material which attracts solicitor-client privilege.
28The applicant also draws this court’s attention to s. 49.13 of the LSA which specifies that the LSO may apply to the Superior Court of Justice for an order authorising disclosure of material “that a bencher, officer, employee, agent or representative of the Society would otherwise be prohibited from disclosing under section 49.12”. Here, the applicant says the fact that the Order was authorised by a Justice of the Peace creates a conflict with the LSA, which should be avoided by reading in the LSA requirement of authorisation only by a Superior Court judge.
29The applicant claims that once the LSO became aware of the police’s intention to seek a production order, it should have made an application to the Superior Court of Justice in accordance with its own statute and bylaws. The applicant submits that failure to do so does not bring an end to the enquiry, but permits this court to review the Order using LSA criteria.
30For the following reasons, I find that the LSA provisions have no bearing on the s. 487.014 procedure and should not be used in the issuance and review of production orders.
31First, s. 487.0193(4)(b) permits the variance of a production order if a justice or judge is satisfied that production “would disclose information that is privileged or otherwise protected from disclosure by law.” In other words, the protection for privileged documents already exists within the statutory scheme for production orders. If a party believes that production of material in its possession would violate privilege, it may seek recourse by applying for an exemption or variance. In this case, the LSO has not sought variance on this basis, leading to the clear inference that no privilege conflicts exist.
32Secondly, with respect to the protection afforded by the LSA on the grounds of incrimination, s. 487.0196 of the Code explicitly overrides incrimination as a basis for resisting a production order by stating that:
No one is excused from complying with an order made under any of sections 487.014 to 487.018 on the ground that the document that they are required to produce may tend to incriminate them or subject them to a proceeding or penalty. However, no document that an individual is required to prepare may be used or received in evidence against them in a criminal proceeding that is subsequently instituted against them, other than a prosecution for an offence under section 132, 136 or 137.
33I would also add that in the criminal trial context, the question of whether incrimination is a bar to the use of produced materials is best dealt with in the admissibility context rather than the production stage.
34Thirdly, the Criminal Code provisions relate to the authorisation of a production order on application by law enforcement officers whereas the LSA is a statute designed to govern how its members and employees conduct themselves. The section relied upon by the applicant is a good example: it deals with situations when the LSO wishes to disclose material otherwise prohibited.
35Finally, I reject the applicant’s argument that s. 487.0193 contemplates a wholesale review of the order itself. It simply permits a court to determine whether the document holder need not produce the documents on the basis set out in subsection (4): R. v. CTV, a Division of bell Media Inc., 2015 ONSC 4842 at paras. 23-28.
36For these reasons, I find there is no basis or justification to apply LSA criteria in the issuance of a production order.
Is the LSO Unable to Disclose the Subject Matter of the Production Order?
37The applicant’s fourth ground is answered by the fact that the LSO has not sought a variance to or exemption from the order. This indicates that it can disclose what has been ordered.
38As previously described, this demonstrates the built-in safeguard of the statutory production order regime: if the holder of the documents believes that it is unable to legally disclose what is contained in a production order, it may pursue an application to revoke or vary the order under s. 487.0193 of the Code.
39For these reasons, the application is dismissed.
Released: 28 March 2023 S.A.Q. Akhtar J.