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Appeals - Civil or Criminal

. R. v. Gong

In R. v. Gong (Ont CA, 2020) the Court of Appeal considered the interesting issue of when an appeal route was civil [and thus under CJA 6(1)(b)] or criminal [and thus under the CCC]. The facts were that a party was the target of Criminal Code investigative procedures by the Ontario Securities Commission:
[9] The governing principles are found in Canadian Broadcasting Corporation v. Ontario, 2011 ONCA 624, 107 O.R. (3d) 161, per Doherty J.A., at para. 18. There are three categories of orders that would be considered to be criminal in nature. Those three categories are: (i) an order made in the course of a criminal proceeding, (ii) an order directly impacting on an ongoing or pending criminal proceeding, or (iii) an order rescinding or varying an order made in a criminal proceeding. The order of the application judge here clearly fits into the first and second categories.

[10] The circumstances here mirror what occurred in Ontario (Provincial Police) v. Assessment Direct Inc., 2018 ONCA 78, leave to appeal to S.C.C. refused, 37918 (June 21, 2018). In that case, the police had obtained documents pursuant to a search warrant issued in a possible criminal prosecution. No charges had yet been laid. The targets of the search warrant claimed privilege over the documents. The application judge found that certain documents were not privileged and ordered that they be released to the police. The targets appealed to this court from that order. This court quashed the appeal, specifically finding that no appeal lay under s. 6(1)(b) of the Courts of Justice Act. In doing so, this court said, at para. 3:
In our view, the order is properly characterized as affecting the enforcement or implementation of the search warrant. The search warrant is a judicial order made on an ex parte application brought under the Criminal Code pertaining to an ongoing criminal investigation. In our view, judicial orders that are directed at the enforcement or implementation of a criminal order are themselves criminal in nature.
[11] The production order in this appeal was granted under the pertinent provisions of the Criminal Code. It was directed at gathering possible evidence of a Criminal Code offence. Criminal charges were laid against the appellant in the months before the production order was granted. Presumably any material that is obtained by the Crown through the production order (if the privilege claim fails) was always intended to, and will, be used in furtherance of a prosecution. In those circumstances, I do not see how this process could be characterized as anything other than a criminal matter.

[12] In my view, the order at issue here is an order that was “directed at the enforcement or implementation of a criminal order”.

[13] The appellant attempts to distinguish this case from Assessment Direct by relying on the Supreme Court of Canada’s judgment that dismissed the motion for leave to appeal for “want of jurisdiction”. The appellant submits that “[i]f an application under s. 40 of the Supreme Court Act is not the correct avenue of appeal then it must be the case that an appeal lies to this Court” (Respondent’s factum para. 34).

[14] The flaw in that submission is the assumption that there must be a route of appeal. That is not necessarily the case. Any appeal route must be found in a statute: Kourtessis v. Minister of National Revenue, 1993 CanLII 137 (SCC), [1993] 2 S.C.R. 53, at pp. 69-70. I have already set out why the order in question here does not arise from a civil matter with the result that the Courts of Justice Act cannot be relied upon to provide an appeal route. Consequently, the appellant must find an appeal route in the Criminal Code. The appellant acknowledges that no such appeal route exists under the Criminal Code.

[15] The appellant also contends that there must be an appeal route because if the documents are released to the Crown then “the proverbial cat is out of the bag”. However, that is often the result in a criminal proceeding where pre-trial rulings are made with respect to the seizure of evidence. Evidence gathered through search warrants, wiretaps, production orders, and the like, are often determined before trial. Indeed, they may be determined before charges have been laid, as was the case in Assessment Direct. That fact does not change the existing appeal routes. An accused person who fails to successfully challenge one of these types of orders can only appeal that result after the trial is completed and the accused is found guilty. That reality exists notwithstanding the unbagging of the proverbial cat.

[16] The appellant tries to sustain his position by reference to a variety of other decisions, none of which, viewed fairly, assist him. I do not intend to refer to all of the cases upon which the appellant relies, but I will mention the two that emanate from this court. The appellant contends that R. v. Consolidated Fastfrate Transport Inc. (1995), 1995 CanLII 1527 (ON CA), 125 D.L.R. (4th) 1 (Ont. C.A.). is “directly analogous to the case at bar.” That is simply not the case. In Fastfrate, an injunction had been obtained to restrain the accused company from disposing of its assets pending trial. This court understandably held that the injunction was a civil order and thus appealable under the Courts of Justice Act. As Galligan J.A. said, at p. 6: “It is my view that the order in this case was a civil order made for the purpose of assisting the criminal law and did not itself become a part of the ongoing criminal proceedings.” An injunction bears no comparison to a production order granted under the Criminal Code.

[17] The other case is R. v. Lepage (1997), 1997 CanLII 2236 (ON CA), 36 O.R. (3d) 3 (C.A.), in which the accused applied for a declaration that ss. 672.47 and 672.54 of the Criminal Code were unconstitutional. The trial judge found that s. 672.54 violated s. 15 of the Charter. The Crown appealed. In a footnote to his decision, Doherty J.A. noted that the issue of this court’s jurisdiction to hear the appeal was not contested. However, he went on to observe that, in any event, the respondent’s successful application for declaratory relief engaged the civil appellate jurisdiction of this court under the Courts of Justice Act. No declaratory relief was sought or obtained in this case. I also note that this court expressly noted in Assessment Direct that no declaratory relief had been sought in that case. The decision in Lepage simply does not assist the appellant.

[18] Two other cases support the Crown’s position, which appellant’s counsel, very fairly and responsibly, included in his factum. The first is Dee v. Her Majesty the Queen in Right of Canada, 2008 NBCA 10, 232 C.C.C. (3d) 269, where the New Brunswick Court of Appeal held that no appeal lay from the determination by a judge of the Court of Queen's Bench that certain documents, seized from the premises of a law firm in compliance with a production order issued pursuant to s. 487.012 of the Criminal Code, were not privileged because the order was made in the course of a criminal investigation that led to a criminal prosecution.

[19] The other is R. v. Wilder (1996), 1996 CanLII 1888 (BC CA), 110 C.C.C. (3d) 186 (B.C.C.A.). In that case, the target of a search warrant, whereby documents were seized from a solicitor's office under s. 488.1 of the Criminal Code, moved to quash the search warrant. The documents in question had been sealed pursuant to the procedure set out in s. 488.1. The British Columbia Court of Appeal held that no appeal lay to it from the order of the application judge made under s. 488.1 regarding whether solicitor-client privilege attached to the documents.

[20] Finally, the appellant invokes the decision in Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, 2002 SCC 61, [2002] 3 S.C.R. 209, to argue that since the principle of solicitor-client privilege is involved in this case, broad remedies should be provided.

[21] That submission runs headlong into the principle that appeal rights must be found in a statute. I have already referred to the decision in Kourtessis where that point was clearly made: “[a]ppeals are solely creatures of statute” per La Forest J. at p. 69. There is nothing in Lavallee that alters that basic principle – a principle that does not vary based on the importance of the underlying issue. The decision in Lavallee dealt with the process under the Criminal Code to protect a claim of privilege. It did not purport to address what, if any, appeal routes lay from decisions that ruled on whether the privilege applied.

[22] The appellant’s submission also runs counter to many prior decisions, some of which I have referred to above, where solicitor-client privilege was at issue, but that fact did not alter the conclusion regarding whether an appeal lay or not.

[23] To conclude, no appeal lies at this stage from the order of the application judge. Different considerations will come into play if a trial is held, if the material seized is relied upon at the trial, and if the appellant is convicted.


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