R. v. Kachkar (J.), 2014 ONCA 560

• Judge: Watt, J.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 19, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 560;(2014), 324 O.A.C. 30 (CA)

R. v. Kachkar (J.) (2014), 324 O.A.C. 30 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JL.039

In The Matter Of an application pursuant to s. 20(1) of the Mutual Legal Assistance in Criminal Matters Act, S.C. 1988, c. 37, as amended, for an Order to Send Evidence gathered in Canada for use by authorities in the United States of America in their investigation of Jack Kachkar, Steven Handley, Colin Hunter, Rima Goldschmidt, et al, as operators of Inyx Inc.

Her Majesty the Queen (respondent) v. Jack Kachkar (applicant)

(M43083; 2014 ONCA 560)

Indexed As: R. v. Kachkar (J.)

Ontario Court of Appeal

Watt, J.A.

July 21, 2014.

Summary:

The applicant sought leave to appeal from a sending order made by a Superior Court judge under s. 20(1) of the Mutual Legal Assistance in Criminal Matters Act. The applicant's principal complaint was that the judge who made the order misinterpreted his earlier amended gathering order and applied, incorrectly, the decision in Russian Federation v. Pokidyshev (1999 Ont. C.A.). The result, according to the applicant, was that the sending order included records of corporate entities that had not been included within the four corners of the amended gathering order and should be set aside.

The Ontario Court of Appeal, per Watt, J.A., dismissed the motion and refused leave to appeal.

Criminal Law - Topic 5599.9

Evidence and witnesses - Foreign evidence assistance agreements and legislation - Forwarding evidence to requesting state (sending order) - The Ontario Court of Appeal, per Watt, J.A., stated that "Section 35 of the MLAT [Mutual Legal Assistance in Criminal Matters Act] permits an appeal to the court of appeal from any order or decision a judge or court in Canada makes under the MLAT. But no appeal lies as of right. Leave to appeal is required. And the appeal is limited to questions of law alone. Further, the application for leave to appeal must be made to a judge of the court of appeal within 15 days after the order or decision that is challenged. ... Questions of law are about what the correct legal test is, while questions of fact are questions about what actually took place between the parties. Questions of mixed fact and law are questions about whether the facts satisfy the legal tests ... A question that is about the application of legal standard is also a question of law ..." - See paragraphs 28 and 30.

Criminal Law - Topic 5599.9

Evidence and witnesses - Foreign evidence assistance agreements and legislation - Forwarding evidence to requesting state (sending order) - Section 35 of the Mutual Legal Assistance in Criminal Matters Act (MLAT) permitted an appeal to the court of appeal from any order or decision of a judge or court in Canada made under the MLAT, on a question of law, with leave of the court - Section 35 did not define the standard to be applied to determine whether leave should be granted, nor provide a list of factors to be considered - The Ontario Court of Appeal, per Watt, J.A., stated that the jurisprudence had filled the statutory void by providing the following factors a judge or court should consider in deciding whether leave should be granted, if satisfied that a question of law alone had been raised: "i. Is the question raised not settled by authority? ii. Is the question raised of importance generally and, if not of importance generally, is it nonetheless of great importance to a person with serious interests, such as his liberty, at stake? iii. Does the proposition of law put forward have any merit or, to put it another way, does it appear to the judge not to be frivolous? iv. Are there other discretionary considerations, such as prejudice to either the applicant or the requesting state, which require to be taken into account?" - See paragraphs 31 and 32.

Criminal Law - Topic 5599.9

Evidence and witnesses - Foreign evidence assistance agreements and legislation - Forwarding evidence to requesting state (sending order) - The Ontario Court of Appeal, per Watt, J.A., stated that "Both the Minister of Justice and judges of provincial and territorial superior courts have duties assigned to them under the MLAT [Mutual Legal Assistance in Criminal Matters Act]. The Minister of Justice is the guardian of Canadian sovereignty interests. He controls the front and back end of the process. No request proceeds without the Minister's approval. No sending order is implemented without the Minister's approval. As in extradition cases, the central role of the Minister of Justice reflects the essential political nature of decisions involving international relations ... The judicial role under Part I of the MLAT differs from that of the Minister. The judge is tasked with the responsibility of ensuring compliance with the statutory conditions precedent to the making of the order requested by the competent authority. And the judge must also fashion an order that balances the legitimate state and individual interests at stake ..." - See paragraphs 33 to 35.

Criminal Law - Topic 5599.9

Evidence and witnesses - Foreign evidence assistance agreements and legislation - Forwarding evidence to requesting state (sending order) - The applicant sought leave to appeal from a sending order made by a Superior Court judge under s. 20(1) of the Mutual Legal Assistance in Criminal Matters Act - The Ontario Court of Appeal, per Watt, J.A., dismissed the motion and refused leave to appeal - The proposed grounds of appeal were that the judge erred in: (i) including in the Sending Order records that fell outside the terms of the gathering order; (ii) interpreting the Gathering Order; and (iii) applying the court's 1999 decision in Russian Federation v. Pokidyshev to the circumstances of this case - First, it was arguable that at least the first, and perhaps the second, proposed ground of appeal involved a question of mixed fact and law, rather than a question of law alone - Whether certain records collected under the Gathering Order fell within "business records relating to Inyx Canada" seemed more a question about whether the records satisfied the standard set in the order than about the standard itself - Second, the first two proposed grounds of appeal were unique to this case, raising no issue of overarching importance beyond the idiosyncratic circumstances of this case - No proceedings were extant in the requesting jurisdiction; thus the applicant's liberty interest was not implicated - Third, the merits of the proposed grounds of appeal were not strong - The documents were business records "relating to" Inyx Canada - The evidence was obtained under a gathering order, not seized in accordance with a search warrant - In Pokidyshev, the court decided that, on a sending hearing, the judge did not have to satisfy him or herself: (i) that the material was gathered in accordance with a gathering order; or (ii) that it would afford evidence of the commission of an offence in the requesting state - The applicant's proposed argument was simply a repackaging of an argument that was irrelevant for the judge at the sending hearing - See paragraphs 41 to 47.

Practice - Topic 8874

Appeals - Leave to appeal - From question of law - [See first, second and fourth Criminal Law - Topic 5599.9 ].

Cases Noticed:

Pokidyshev et al., Re (1999), 124 O.A.C. 24; 138 C.C.C.(3d) 321 (C.A.), refd to. [para. 2].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 29].

R. v. Araujo (A.), [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 30].

Canada (Attorney General) et al. v. Ross (1994), 44 B.C.A.C. 228; 71 W.A.C. 228 (C.A.), refd to. [para. 32].

Ontario (Attorney General) v. Vonk Dairy Products B.V. et al. - see Vonk Dairy Products B.V., Re.

Vonk Dairy Products B.V., Re (1998), 110 O.A.C. 151 (C.A.), refd to. [para. 32].

Statutes Noticed:

Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985 (4th Supp.), c. 30, sect. 35 [para. 28].

Counsel:

Jack Kachkar, appearing in person;

Susan Ficek, for the respondent.

This motion for leave to appeal was heard on February 19, 2014, by Watt, J.A., of the Ontario Court of Appeal, who delivered the following decision on July 21, 2014.