



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gong, 2020 ONCA 587

DATE: 20200918

DOCKET: M51634 (C68411)

Lauwers, Brown and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Respondent)

and

Xiao Hua Gong

Respondent (Appellant)

Davin Garg, for the applicant

Scott Hutchison and Alexa Ferguson, for
    the respondent

Heard: August 26, 2020 by
    videoconference

Nordheimer
    J.A.:

[1]

The Crown brings this motion to quash an appeal
    taken by Mr. Gong from the order of the application judge
[1]
. For the following reasons,
    the motion is granted and the appeal is quashed.

I: BACKGROUND

[2]

Mr. Gong is charged with four offences: fraud
    over $5,000; possession of property obtained by crime; laundering proceeds of
    crime; and uttering a forged document.

[3]

In March 2018, investigators for the Ontario
    Securities Commission (the "OSC") obtained a production order under
    the provisions of the
Criminal Code
R.S.C. 1985, c. C-46 in relation
    to the appellant and several companies under his control. The production order related
    to the files held by Price Waterhouse Coopers ("PWC") in relation to
    accounting and taxation matters for the appellant and his companies. The
    appellant asserted claims of solicitor-client or litigation privilege over the documents
    covered by the production order.

[4]

On consent, the documents which are the subject
    of the production order were sealed and filed with the court pending the determination
    of the privilege claims.

[5]

The application judge rejected the claim of
    litigation privilege. She also rejected the solicitor-client privilege claim in
    its broadest respect. However, the application judge found that it would be
    necessary to review each of the documents in question to make a final
    determination as to the application of solicitor-client privilege. To
    accomplish that review, she appointed two referees whose task was to review all
    of the documents and separate them into various categories that she
    established. The application judge hoped that this process would expedite the
    review of the documents.

[6]

The appellant first sought leave to appeal to
    the Supreme Court of Canada from the order of the application judge, under s.
    40(1) of the
Supreme Court Act
, R.S.C. 1985, c. S-26. That application
    was dismissed by a judgment of the court which read, in part, dismissed for
    want of jurisdiction: 39040 (April 16, 2020).

[7]

The appellant then brought an appeal to this
    court, which the Crown moves to quash on the basis that no appeal lies from the
    application judges order.

II: Analysis

[8]

The first issue to be determined is whether the
    order under appeal is criminal or civil, because that determination directs the
    applicable appeal route, if any. The Crown says that this is a criminal matter
    and any appeal route must be found in the
Criminal Code
. The appellant
    says that it is a civil matter so that an appeal lies to this court from the
    final order under s. 6(1)(b) of the
Courts of Justice Act
, R.S.O.
    1990, c. C.43.

[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 Canadas
    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 (Respondents 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] 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), 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),
    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 courts jurisdiction to hear the appeal was not contested.
    However, he went on to observe that, in any event, the respondents 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 Crowns position, which
    appellants 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), 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 appellants 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.

III: Conclusion

[24]

I would grant the motion and quash the appeal.

Released: PL September 18, 2020

I.V.B. Nordheimer J.A.

I agree. P. Lauwers
    J.A.

I agree. David Brown
    J.A.





[1]

R. v. Gong
, 2019 ONSC 5899.


