



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



Canada
                (Attorney General) v. Pacific International Securities Inc.,









2005 BCCA
            29




Date: 20050118




Docket: CA032300

Between:

The Attorney
      General of Canada

Appellant



And

Pacific
      International Securities Inc.

Respondent













Before:



The Honourable
            Mr. Justice Hall





(In Chambers)









K.J. Yule, Q.C. and
J.G. Johnston



Counsel for the Appellant





G.S. Snarch



Counsel for the Respondent





Place and
            Date of Hearing:



Vancouver, British Columbia





24 November 2004





Place and
            Date of Judgment:



Vancouver, British Columbia





18 January 2005







Reasons for Judgment of the Honourable Mr. Justice Hall:

[1]

This
      case raises an issue under the federal
Mutual Legal Assistance in
      Criminal Matters Act
, R.S.C. 1985, c. 30 (4th Supp.).  The statute
      provides that the Canadian Minister of Justice may respond to a request
      from a foreign state for Canada's assistance in gathering evidence.  The
      object of such request is to compel a party in Canada to produce evidence,
      including documentary or testimonial evidence, to assist in a prosecution
      in the foreign state.  If the Minister of Justice approves the request,
      the statute provides that the Attorney General of Canada may apply to a
      judge for an order in aid of the process.

[2]

Section
      18(1) of the statute provides that a judge may make an order for the gathering
      of evidence where that judge is satisfied there are grounds to believe
      that an offence has been committed and evidence concerning the offence
      or the whereabouts of the offender will be found in Canada.  Under s. 18(5),
      such an order "may include any terms or conditions that the judge
      considers desirable, including those relating to the protection of the
      interests of the person named therein and of third parties".  Further,
      under s. 18(10), a person named in such an order "is entitled to be
      paid the travel and living expenses to which the person would be entitled
      if the person were required to attend as a witness before the judge who
      made the order".  Ultimately, after the evidence has been obtained,
      the judge may order that it be sent to the foreign jurisdiction subject
      to any conditions that the judge considers desirable, as provided by s.
      20 of the statute.

[3]

In
      this case, a judge of the Supreme Court ordered the gathering of evidence
      from the respondent brokerage firm in early December 2003.  Initially it
      was directed that the evidence should be gathered together by the beginning
      of January 2004 but when that proved to be impracticable, the time period
      for the gathering of the evidence was extended to April 2004.  Certain
      evidence was ordered to be sent to the United States by the original hearing
      judge in December 2003, and on 28 April 2004 another judge of the court
      ordered, pursuant to s. 20(1) of the statute, that the additional evidence
      that had been gathered from the brokerage firm be sent.

[4]

On
      both occasions when evidence was ordered to be sent, the respondent brokerage
      firm requested the judge to reserve the issue of costs for further argument.  The
      respondent disclosed in the affidavit material filed by its vice-president,
      Compliance and Corporate Secretary, Mr. Thomas, that it seeks to advance
      a claim against the Crown of approximately $58,000 for expenses said to
      have been incurred in retrieving the requested documentary material.  The
      sums include staff time and photocopying costs.  The Crown opposed the
      application before the judge arguing that there was no statutory basis
      for such an order.  The Crown submitted that apart from the provisions
      of s. 18(10), which as already mentioned allows for payment of travel and
      living expenses, there is no provision in the statute for the payment of
      expenses occasioned by a request.  In September 2004, Boyd J., who heard
      the application requesting an order for reimbursement of costs or expenses,
      made an order in favour of the respondent brokerage firm ordering payment
      but did not deal with the question of quantum.  She directed that the parties
      were to agree between themselves as to an appropriate amount, or failing
      that, to apply to the court for directions for an appropriate procedure
      to review the actual quantum of the claim.

[5]

Counsel
      for the Crown now seeks leave to appeal from that decision of the Supreme
      Court judge.  Counsel for the respondent brokerage firm opposes the application.  Counsel
      for the Crown again submits that there is no specific authority in the
      statute for the order made by the judge.  It is argued that the matter
      is one of significance and that since the matter is one of first impression,
      it would be appropriate to grant leave.

[6]

The
      respondent submits that ss. 18 and 20 of the statute are sufficiently broad
      to authorize the order made by the learned Supreme Court judge.  It points
      to provisions in the statutory regime wherein a judge can impose terms
      and conditions considered desirable for the protection of individuals.  Counsel
      for the respondent brokerage firm argues that it seems reasonable that
      a party forced to incur expenses ought to be able to claim reimbursement
      under the statute.  He submits that it is quite unlikely this Court would
      interfere with this discretionary order made in Supreme Court.

[7]

The
      parties are
ad idem
that this is a question of law and that under
      s. 35 of the statute, an appeal lies with leave to the Court of Appeal
      on a question of law alone.  The tests to be applied by the Court of Appeal
      in considering an application for leave to appeal were set out in the decision
      of Madam Justice Southin in
Canada (Attorney General) v. Ross
(1994),
      44 B.C.A.C. 228.  The criteria referred to by Madam Justice Southin at
      para. 33 are:

1.         Is the question raised not settled by authority?

2.         Is it 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?

3.         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?

4.         Are there other discretionary considerations,
      such as prejudice to either the applicant or the requesting state which
      require to be taken into account?

[8]

In
      the recent case
Canada (Attorney General) v. Pacific Network Services
(2003),
      190 B.C.A.C. 289, 2003 BCCA 685 at para. 11, Oppal J.A. opined that in
      addition to those criteria, a party seeking leave to appeal must demonstrate
      that there is a reasonable possibility of success, which seems to me simply
      another way of saying that the appeal has a degree of merit and is not
      frivolous.

[9]

Counsel
      for the respondent has pointed out that it seems not unreasonable that
      a person put to expense under the statute might properly seek reimbursement
      from some agency of the Crown.  However, I wonder whether this is really
      a "costs" issue or whether we are talking about something more
      properly described as "expenses".  Counsel for the Crown applicant
      submits that there is no clear authority in the statute for the granting
      of an order of the type granted by the Supreme Court judge here relating
      to reimbursement of costs or expenses.  There is no express provision in
      the statute but it may be reasonable to imply one.  Perhaps the broad discretionary
      language of ss. 18 and 20 should lead to such a conclusion.

[10]

An
      issue that occurs to me is whether it is appropriate to apply for an order
      of the type sought here by the respondent (and granted by the judge) in
      the proceedings themselves under the statute or whether this is a situation
      where more properly an invoice might be presented to the Crown authorities
      by the party who has incurred expenses.  In the latter circumstance, a
      failure by the Crown to respond or to pay might be met by the issuance
      of civil process.  Would that be a more appropriate way to bring the issue
      before a court?  There is no provision for a direction for taxation of
      costs set out in the legislation and a civil process might be considered
      a preferable method to sort out such a claim.

[11]

If
      leave is to be granted in a case, the chambers judge normally does not
      say much about the merits of the appeal but leaves that properly to the
      division hearing the case so I will refrain from further discussion of
      the issue.  Ultimately, this is a case of first impression not settled
      by any authority and I think it is of importance that the matter should
      be considered by this Court.  Counsel for the respondent, as I noted, points
      out that the case concerns a discretionary order.  The reluctance of this
      Court to interfere with a discretionary order is well known and established
      by many authorities, but in this case it seems to me that it is appropriate
      in the absence of authority for the court to consider the reach of this
      statute on this issue.  Because the matter has not hitherto been considered,
      it seems to me that I could not confidently say that there is no reasonable
      possibility of success of the proposed appeal.  I consider it appropriate
      for this Court to consider and give guidance on this issue.  Having reflected
      on the matter and considered the arguments advanced by the applicant and
      the respondent, it seems to me I ought to grant leave to appeal and I would
      so order.

The Honourable Mr. Justice Hall


