



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Viscomi, 2014 ONCA 765

DATE: 20141031

DOCKET: M44253

Strathy C.J.O. (In Chambers)

IN THE MATTER OF an application pursuant to s. 20(1) of
    the
Mutual Legal Assistance in Criminal Matters Act
, R.S.C. 1985, c. 30
    (4th Supp.), for an Order to send evidence gathered in Canada for use by
    authorities in the United States of America in their investigation and
    prosecution of Marco Viscomi

BETWEEN

The Attorney General for Ontario

and

The Attorney General of Canada

Respondents

and

Marco Viscomi

Applicant

Joseph S. Wilkinson, for the applicant

Robert W. Hubbard, for the respondent the Attorney
    General of Ontario

Nancy Dennison, for the respondent the Attorney General
    of Canada

Heard: October 16,
    2014

Motion for leave
    to appeal from the order of Justice M.A. Code of the Superior Court of Justice,
    dated September 11, 2014, with reasons reported at: 2014 ONSC 5262.

Strathy C.J.O.:

[1]

The applicant seeks leave to appeal from an order dismissing his
    application to re-open a sending order made under s. 20(1) of the
Mutual
    Legal Assistance in Criminal Matters Act
,
    R.S.C. 1985, c. 30 (4
th
Supp.)

(
MLACMA
).
    For the reasons that follow, the application for leave to appeal is dismissed.

[2]

The applicant is charged in the United States with sexual coercion of a
    minor and transporting visual depictions of sexually explicit conduct involving
    a minor by means of a computer.

[3]

The application judge heard the
MLACMA
proceedings
ex parte
on November 6, 2012, following which he granted two gathering orders, and on
    March 12, 2013, at which time he granted two sending orders.

[4]

An extradition hearing was held on April 11 and 12, 2013 and resulted in
    a committal order. The applicant has appealed to this court from that order.

[5]

On October 17, 2013, the Minister advised the applicants lawyer of his
    reasons for surrendering the applicant to the U.S. authorities. His letter made
    specific reference to the
MLACMA
orders and informed the applicant
    that the materials had been sent to the United States.

[6]

The applicant did not seek leave to appeal the
MLACMA
orders.

[7]

The applicant then filed a Notice of Application in this court seeking
    judicial review of the Ministers surrender decision.

[8]

On May 9, 2014, more than six months after he became aware of the
    orders, the applicant brought an application to re-open the
MLACMA
proceedings.
    The application judge characterized it, correctly in my view, as a
Wilson
application.
[1]
He held that the court had inherent jurisdiction to review its own orders on an
inter partes
basis. He noted that the review was not a hearing
de
    novo
. The issue was whether, in light of the more complete record before
    him, there remained some basis on which the original orders could have been
    made. He concluded that there had been no material non-disclosure in the
    original
ex parte
proceedings and dismissed the application to re-open
    them.

[9]

Not having sought leave to appeal the
MLACMA
orders, the
    applicant now seeks leave to appeal the order in the
Wilson
application.
    The respondents assert this court has no jurisdiction to hear an appeal from that
    order.

[10]

This
    jurisdictional issue turns on the interpretation of s. 35 of
MLACMA
,
    which provides:

An appeal lies, with leave, on a
    question of law alone, to the court of appeal, within the meaning of section 2
    of the
Criminal Code
,
    from any order or decision of a judge or a court in Canada
made under this Act,
if the application for leave to
    appeal is made to a judge of the court of appeal within fifteen days after the
    order or decision.

[11]

The
    question is whether the order of the application judge was made under
MLACMA.
The simple answer is that it was not. No provision of
MLACMA
provides jurisdiction to conduct a
Wilson
review of a gathering or
    sending order. As recognized by the application judge, this review was conducted
    pursuant to the inherent jurisdiction of the court to review its own
ex
    parte
order.

[12]

It
    is well-settled that there is no appeal from a
Wilson
application:
R.
    v. Meltzer
, [1989] 1 S.C.R. 1764, at pp. 1773-1775;
R. v. Heikel
,
    [1989] 1 S.C.R. 1776, at p. 1779
; R. v. Garofoli,
[1990] 2 S.C.R. 1421,
    at p. 1431
.

[13]

I
    conclude this court has no jurisdiction to hear an appeal from the
Wilson
order.
    Accordingly, there is no basis on which to grant leave to appeal. The sending
    orders were subject to two avenues of review  an appeal under s. 35 of
MLACMA
or a
Wilson
application pursuant to the courts inherent
    jurisdiction. The avenues were concurrent, but distinct. The applicant did not
    seek leave to appeal the sending orders. Those orders were fully executed and
    the material in question is in the hands of the United States authorities.

[14]

MLACMA
is intended to be an expeditious means of discharging Canadas treaty
    obligations. That purpose would not be achieved by providing an appeal from an
    interlocutory order refusing to set aside an order from which a right of appeal
    was available but was not exercised.

[15]

The
    application for leave to appeal is therefore dismissed.





[1]

R. v. Wilson
, [1983] 2 S.C.R. 594
.


