Canada (Attorney General) v. Mathurin, 2015 ONCA 581

• Judge: Weiler, Feldman and Benotto, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 12, 2014
• Jurisdiction: Ontario
• Citations: 2015 ONCA 581;(2015), 337 O.A.C. 331 (CA)

Can. (A.G.) v. Mathurin (2015), 337 O.A.C. 331 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AU.022

The Attorney General of Canada (on behalf of the United States of America) (respondent) v. Yvette Mathurin (appellant)

(C57793; 2015 ONCA 581)

Indexed As: Canada (Attorney General) v. Mathurin

Ontario Court of Appeal

Weiler, Feldman and Benotto, JJ.A.

August 26, 2015.

Summary:

Pursuant to a request for assistance by the United States, Canadian authorities obtained a production order for the subscriber information associated with an IP address pursuant to s. 487.012 of the Criminal Code. The information corroborated Mathurin's involvement in a fraud scheme. Investigators obtained and executed a warrant to search Mathurin's residence. Following the warrant's execution, there was no report to a justice as required by s. 489.1 of the Code. The information obtained through the production order and the search was shared with the American law enforcement officials. The information was relied on by the United States in the Record of Case in support of a request to extradite Mathurin. Mathurin asserted that the Canadian authorities breached her ss. 7, 8 and 10(b) Charter rights. She applied for disclosure of the evidence gathered in Canada in order to pursue the Charter claims.

The Ontario Superior Court, in decision reported at 2013 ONSC 5810, dismissed the application.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 5810, issued a warrant for committal of Mathurin for extradition to the United States. Mathurin appealed the court's decisions.

The Ontario Court of Appeal allowed the appeal in part. The court refused to interfere with the discretionary decision not to order disclosure, except to refer the issue of the effect of the Canadian authorities' failure to report as required by s. 489.1.

Civil Rights - Topic 1373

Security of the person - Police surveillance - Interception of private communications - Disclosure - Pursuant to a request for assistance by the United States, Canadian authorities obtained a production order for the subscriber information associated with an IP address pursuant to s. 487.012 of the Criminal Code - The information corroborated Mathurin's involvement in a fraud scheme - Investigators obtained and executed a warrant to search Mathurin's residence - The information obtained through the production order and the search was shared with the American law enforcement officials - The information was relied on by the United States in the Record of Case in support of a request to extradite Mathurin - Mathurin applied for disclosure of the evidence gathered in Canada in order to pursue Charter claims, including that her s. 8 rights were violated by the Canadian investigators' failure to obtain judicial authorization before sharing the information obtained under the production order and search warrant - The Ontario Court of Appeal held that the failure to obtain judicial authorization before sharing the information did not breach Mathurin's s. 8 rights - See paragraph 43.

Criminal Law - Topic 3012

Special powers - Third party production orders - When available - Pursuant to a request for assistance by the United States, Canadian authorities obtained a production order for the subscriber information associated with an IP address pursuant to s. 487.012 of the Criminal Code - The information corroborated Mathurin's involvement in a fraud scheme - Investigators obtained and executed a warrant to search Mathurin's residence - The information obtained through the production order and the search was shared with the American law enforcement officials - The information was relied on by the United States in the Record of Case in support of a request to extradite Mathurin - Mathurin applied for disclosure of the evidence gathered in Canada in order to pursue Charter claims, including that the informations to obtain (ITOs) the production order and search warrant did not clearly disclose that the information obtained would be transferred to American authorities - The Ontario Court of Appeal stated that, as noted by the extradition judge, the ITOs disclosed the existence of a joint investigation - It was therefore open to the extradition judge to hold that the issuing justice could have inferred that sharing would take place - There was no reviewable error in his conclusion that the warrant and production order were properly obtained - See paragraph 44.

Criminal Law - Topic 3042.1

Special powers - Search warrants - When available - [See Criminal Law - Topic 3012 ].

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of or omissions in sworn information - [See Criminal Law - Topic 3012 ].

Criminal Law - Topic 5275.2

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Disclosure of information - [See Civil Rights - Topic 1373 ].

Criminal Law - Topic 5599.1

Evidence and witnesses - Foreign evidence assistance agreements and legislation - General - Pursuant to a request for assistance by the United States, Canadian authorities obtained a production order for the subscriber information associated with an IP address pursuant to s. 487.012 of the Criminal Code - The information corroborated Mathurin's involvement in a fraud scheme - Investigators obtained and executed a warrant to search Mathurin's residence - The information obtained through the production order and the search was shared with the American law enforcement officials - The information was relied on by the United States in the Record of Case in support of a request to extradite Mathurin - Mathurin applied for disclosure of the evidence gathered in Canada in order to pursue Charter claims, including that her rights were violated as the Canadian authorities should have acted under and in compliance with the Mutual Legal Assistance in Criminal Matters Act - The Ontario Court of Appeal held that the Canadian authorities were not required to proceed under the Act and there was no air of reality that failure to do so breached Mathurin's Charter rights - See paragraphs 41 to 42.

Cases Noticed:

R. v. Garcia-Machado (G.) (2015), 337 O.A.C. 302; 2015 ONCA 569, refd to. [para. 5].

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321, refd to. [para. 21].

United States of America v. Kwok, [2001] 1 S.C.R. 532; 267 N.R. 310; 145 O.A.C. 36; 2001 SCC 18, refd to. [para. 21].

R. et al. v. Larosa (N.) (2002), 163 O.A.C. 108; 166 C.C.C.(3d) 449 (C.A.), refd to. [para. 22].

United States of America et al. v. McAmmond (2005), 193 O.A.C. 129; 192 C.C.C.(3d) 149 (C.A.), refd to. [para. 23].

United States of America v. Fong, [2000] B.C.T.C. 88; 2000 BCSC 612, affd. (2001), 162 B.C.A.C. 32; 264 W.A.C. 32; 2001 BCCA 684, leave to appeal refused (2002), 293 N.R. 400; 180 B.C.A.C. 315; 297 W.A.C. 315 (S.C.C.), refd to. [para. 27].

R. v. Budd (W.), [2004] O.T.C. 481 (Sup. Ct.), refd to. [para. 29].

United States of America et al. v. Wakeling (2014), 465 N.R. 1; 363 B.C.A.C. 1; 624 W.A.C. 1; 2014 SCC 72, refd to. [para. 30].

R. v. Backhouse (J.) (2005), 195 O.A.C. 80; 194 C.C.C.(3d) 1 (C.A.), refd to. [para. 32].

R. v. Church of Scientology of Toronto and Zaharia (1987), 18 O.A.C. 321; 31 C.C.C.(3d) 449 (C.A.), refd to. [para. 32].

R. v. J.T. (2006), 313 N.B.R.(2d) 1; 809 A.P.R. 1; 2006 NBPC 35, refd to. [para. 32].

R. v. Karim (M.A.) et al. (2012), 546 A.R. 57; 2012 ABQB 470, refd to. [para. 32].

Penner v. Niagara Regional Police Services Board et al., [2013] 2 S.C.R. 125; 442 N.R. 140; 304 O.A.C. 106; 2013 SCC 19, refd to. [para. 38].

Canada (Attorney General) v. Talashkova, [2014] O.A.C. Uned. 42; 118 O.R.(3d) 622; 2014 ONCA 74, refd to. [para. 38].

R. v. Correia (2005), 133 C.R.R.(2d) 365; 2005 ONCJ 435, refd to. [para. 46].

R. v. Guiller (1985), 25 C.R.R. 273 (Ont. Dist. Ct.), refd to. [para. 46].

Counsel:

Boris Bytensky, for the appellant;

Richard Kramer, for the respondent.

This appeal was heard on December 12, 2014, by Weiler, Feldman and Benotto, JJ.A., of the Ontario Court of Appeal. Benotto, J.A., released the following decision for the court on August 26, 2015.