



COURT OF APPEAL FOR ONTARIO

CITATION: Belgium
    v. Suthanthiran, 2017 ONCA 343

DATE: 20170501

DOCKET: C62547

Laskin, Gillese and Watt JJ.A.

BETWEEN

Attorney
    General of Canada on behalf of the Kingdom of Belgium

Respondent

and

Krishnan Suthanthiran,
    Best Theratronics Ltd. and Best Medical Belgium Inc.

Appellants

Scott C. Hutchison and Matthew R. Gourlay, for the
    appellants

Jeffrey G. Johnston, for the respondent

Heard: September 28, 2016

On appeal from the decision of Justice Robert L. Maranger,
    of the Superior Court of Justice dated March 30, 2016, on an application pursuant
    to s. 15 of the
Mutual Legal Assistance in Criminal Matters Act,
R.S.C.
    1985, c. 30 (4
th
Supp) to send seized evidence to the Kingdom of
    Belgium
.

Watt J.A.:

[1]

Best Theratronics
    ("Best" or "Best Canada") is in the business of cancer
    diagnosis and treatment. Among other things, Best manufactures cyclotrons,
    machines that produce radioactive isotopes for use in radiation therapy.

[2]

Krishnan Suthanthiran
    ("Suthanthiran") founded Best and owns the company. Suthanthiran also
    heads an international group of companies all in the business of providing
    medical equipment and supplies. The companies involved in this appeal, Best
    Canada and Best Medical Belgium Inc. (BMB Inc.), are part of this
    international group.

[3]

Belgian authorities believe that
    three transactions involving a loan and the purchase and sale of two cyclotrons
    were criminal offences in the Kingdom of Belgium (Belgium).

[4]

Belgium sought assistance from Canada under the mutual legal assistance
    treaty between the two countries. On behalf of Belgium, counsel for the
    Attorney General of Canada obtained a search warrant under s. 12 of the
Mutual
    Legal Assistance in Criminal Matters Act,
R.S.C. 1985, c. 30 (4
th
Supp)

("
MLACMA"
). The warrant authorized the search of Best's
    offices in Canada for records relating to what Belgium regarded as the criminal
    transactions. The premises were searched and records seized.

[5]

Suthanthiran says that the records seized under the search warrant
    included documents that contain a vast array of commercially sensitive
    information, such as material about the design and manufacture of cyclotrons.
    This information, of an inestimable value to Best's competitors, is of little
    value in the potential criminal prosecution.

[6]

Belgium sought a sending order under s. 15(1) of
MLACMA
. Best
    wanted the order tailored, by the inclusion of appropriate terms and
    conditions, to ensure that a state-owned competitor of Best did not get access
    to the commercially sensitive information included in the seized documents.

[7]

A judge of the Superior Court of Justice made the sending order, but
    declined to attach any terms or conditions restricting access to the documents
    to those involved in the criminal prosecution.

[8]

Best and Suthanthiran sought and obtained leave to appeal to this court
    from the chambers judge. Leave to appeal was granted on a single question of
    law:

Did the application judge err in law by refusing to impose
    terms and conditions within the Sending Order that would minimize the risk that
    the applicants confidential information would be unnecessarily and
    inappropriately disclosed to third parties?

[9]

These reasons explain why I would
    answer "no" to the question on which leave to appeal was granted and
    would dismiss the appeal.

THE BACKGROUND FACTS

[10]

The background and procedural
    history essential to an understanding of the issue on which leave was granted
    are, for the most part, uncontroversial.

The Request for Mutual Legal Assistance

[11]

On May 7, 2014, Belgium sought legal assistance from Canada under the
Treaty
    between the Government of Canada and the Government of the Kingdom of Belgium
    on Mutual Legal Assistance in Criminal Matters
(the "Treaty"). Belgium
    sought assistance in connection with its investigation into three transactions
    said to involve Suthanthiran, Best Canada and BMB.

[12]

Belgium sought issuance of a search warrant under Article 10 of the
    Treaty in connection with their investigation of several criminal offences
    under Belgian law, including misuse of company assets; concealing assets in an insolvency;
    making false statements; using false documents; and money laundering.

The Allegations

[13]

Belgian authorities allege that Suthanthiran, through BMB, acquired
    ownership of a Belgian company specializing in nuclear applications in medicine.
    Upon acquisition, the company name was changed to BMB SA. Suthanthiran then
    fraudulently misappropriated funds from BMB SA and its creditors. He
    transferred these funds for his own benefit through a series of three
    transactions involving Best Canada.

[14]

The first transaction involved a transfer of funds from BMB SA to Best
    USA. The transfer was said to be a loan. But the funds did not go to Best USA.
    Instead, the money went to Best Canada. The loan was never repaid.

[15]

The second and third transactions involved the purported sale of two
    cyclotrons by Best Canada to BMB SA. The allegation is that BMB SA paid for the
    cyclotrons, at least in part, but that no cyclotron was ever delivered to BMB
    SA and no refund of BMB SA's purchase price was ever made.

[16]

In the end, according to Belgian authorities, the loan and purchase
    payments liquidated BMB SA's assets and contributed to its insolvency.

Ministerial Approval

[17]

On July 23, 2014, in accordance with s. 11(1) of
MLACMA
, the
    Minister of Justice approved the Belgian request for legal assistance. This
    approval permitted a competent authority, counsel for the Attorney General of
    Canada, to apply for a search warrant in accordance with the Request from
    Belgium.

The Search Warrant

[18]

About two months after the Minister's approval, a judge of the Superior
    Court of Justice granted a search warrant under s. 12(1) of
MLACMA
.
    The warrant authorized search for and seizure of records relating to the three
    specific transactions including:

·

correspondence, emails, electronic messages, faxes, notes,
    memoranda and reports;

·

estimates, purchase orders, orders forms and invoices;

·

agreements and contracts;

·

financial records, accounting ledgers, bank records and receipts;

·

drawings, drafts, plans and designs;

·

production schedules and details of when production started and
    ended;

·

information on the whereabouts of the finished products; and

·

information showing the people in charge of the projects.

The Items Seized under Warrant

[19]

Within days of its issuance,
    Canadian authorities executed the warrant at Best Canada's office. They made a
    forensic image of Best Canada's server and of the laptop used by its Director
    of Finance. The items seized from these sources included quotations, the terms
    and conditions of sales of the company's products, and drawings and documents
    related to the design and manufacture of cyclotron products.

The Report to the Issuing Judge

[20]

About four and one-half months after execution of the search warrant,
    the author of the information to obtain the warrant (the "ITO") filed
    a report with the issuing judge as required under s. 14(1) of
MLACMA
.

The Preliminary Applications

[21]

Counsel for the Attorney General of Canada sought a sending order under
    s. 15(1) of
MLACMA
on behalf of Belgium. At the outset of the sending
    hearing, Best and Suthanthiran alleged that Belgium was acting in bad faith and
    had obtained the search warrant by providing materially misleading information
    to the issuing judge. To advance their argument that the warrant should be
    quashed and the seized materials returned, Best and Suthanthiran sought
    disclosure of the Request to Send on which the Minister acted and also sought
    leave to cross-examine the author of the ITO.

[22]

The judge at the sending hearing dismissed both preliminary applications
    brought by Best and Suthanthiran. He found that there was no air of reality to
    the claim that Belgium, through the submission of the ITO, had deliberately and
    materially misled the judge who issued the search warrant.

The Sending Hearing

[23]

About nine months later, the sending hearing resumed. Best and
    Suthanthiran no longer pursued their challenge to the issuance of the search
    warrant. However, they resisted issuance of the sending order and, in the
    alternative, a sending order without terms and conditions adequately protecting
    against disclosure of their commercially sensitive information.

[24]

Suthanthiran testified at the sending hearing. He described what he
    considered the consequences would be if what was turned over to Belgian
    authorities included commercially sensitive information about cyclotron design,
    and production. His principal concern was that Best's main competitor, a
    company owned in part by the Belgian government, could come into possession of
    Best's intellectual property in a parallel civil proceeding thereby jeopardizing
    his business. Suthanthiran persisted in his claim that the purpose that
    motivated the assistance request was to enable Best's main competitor to gain a
    competitive advantage by acquisition of commercially sensitive information from
    Best.

[25]

Suthanthiran was not cross-examined.

[26]

The sending hearing judge also received in evidence a letter from a
    Belgian attorney explaining the circumstances in which parties to a parallel
    civil proceeding may obtain access to materials in the criminal file. In
    Belgium, parties also have the option, in the course of civil proceedings, of dropping
    their claim and continuing as a civil party before the criminal court with
    access to materials in the criminal file. The attorney also pointed out the
    penal consequences that may ensue when a person uses the materials contained in
    a criminal file for an improper purpose:

It should however be noted that the Belgian criminal code
    punishes with a prison sentence of eight days up to one year or with a fine of
    156 EUR up to 3,000 EUR (article 460ter Penal Code), any use of information
    obtained by having received access to/a copy of a criminal file, which aims at
    or results (i) in obstructing the criminal investigation, or (ii) infringing
    the privacy of a person mentioned in the file or (iii) in infringing the
    personal or moral integrity, or the assets, of a person mentioned in the file.

This being said, even if such improper use of the information
    can be sanctioned as such, this changes nothing to the mere fact that corporate
    documents containing very confidential or sensitive information will be
    disclosed at a certain moment to the persons being part to the criminal
    proceedings (accused persons and civil parties), namely when they will receive
    access to the criminal file.

[27]

In conclusion, the attorney offered this advice:

It is why in practice it is advisable to ask the judge to
    restrict seized documents to the ones which are strictly related to the
    offences at stake and, if possible, to avoid the junction of documents which
    are not linked to the offences making the object of the investigation,
    certainly when they contain confidential or sensitive information which have
    nothing to do with such investigated offences.

The Reasons of the Sending Hearing Judge

[28]

The sending hearing judge was satisfied that the search warrant had been
    executed according to its terms and conditions. He found no evidence that
    Belgium was acting in bad faith or that the Request for assistance was
    "part of [
sic
] grand conspiracy to obtain intellectual property
    belonging to [Suthanthiran and Best]".

[29]

The sending order included none of the terms or conditions that
    Suthanthiran or Best sought to protect their commercially sensitive
    information. The sending hearing judge found that Suthanthirans concerns were
    in large measure answered by Article 17 of the Treaty which restricts the Requesting
    State from disclosing or using the information except for the purpose for which
    it was requested without prior consent by the Minister of Justice.

[30]

The sending judge further found that the commercially sensitive material
    was relevant to the criminal fraud investigation. Suthanthiran is in the
    business of manufacturing cyclotrons and all information related to this
    business is relevant at the investigative stage. All of the information was
    therefore included in the sending order.

The Issue on Appeal

[31]

The chambers judge granted leave to appeal on a single question of law:

Did the application judge err in law by refusing to impose
    terms and conditions within the Sending Order that would minimize the risk that
    the applicants confidential information would be unnecessarily and
    inappropriately disclosed to third parties?

The Arguments on Appeal

[32]

Suthanthiran and Best ("the appellants") contend that the
    sending hearing judge erred in law in failing to include terms and conditions that
    would protect commercially sensitive information. On appeal they request the
    following terms and conditions: first, that items or copies of items not be
    disseminated to any private person, party, or litigant who is not involved in
    an official capacity in the criminal proceedings; and second, if the Belgian
    authorities wish to make a different use of the seized material, they can
    re-apply to a Superior Court of Justice for such permission.

[33]

Section 15(1)(b) of
MLACMA
confers a broad discretion to attach
    terms and conditions to a sending order, including terms and conditions of the
    nature sought here. And the circumstances in this case warranted their
    inclusion.

[34]

The appellants say that, on its face, s. 15(1) of
MLACMA
confers a broad discretion on the sending hearing judge. There is first a
    discretion to grant or refuse a sending order. However, what is of greater
    importance here is the discretion explicitly included in s. 15(1)(b) to include
    in the order any terms and conditions that the judge considers desirable.

[35]

The appellants accept that the sending hearing judge must exercise the
    discretion in s. 15(1)(b) in a manner that comports with the language and
    overall purpose of
MLACMA
. But the inclusion of terms and conditions
    of the nature sought here falls well within these parameters. The proposed
    terms are consistent with the judicial duty to ensure that what is sent is used
    for a proper purpose, but without compromise of the legitimate interests of
    those affected.

[36]

According to the appellants, several discrete errors infected the trial
    judge's analysis and warrant setting aside his conclusion.

[37]

The appellants say that the sending hearing judge took an overly narrow
    view of the judicial role in mutual legal assistance proceedings. He ceded the
    important judicial work of taking cognizance of individual interests to the
    Minister. He failed to give effect to the persuasive force of several
    authorities which have imposed restricted or prohibited access terms like those
    sought here. The inclusion of terms and conditions is not simply a matter for
    the Minister, else there would be no need for the discretion conferred on the
    sentencing hearing judge by s. 15(1)(b).

[38]

The appellants agree that the sending hearing judge was entitled to
    assume that Belgium would honour its legal obligations in its use of the
    material sent from Canada under Article 17 of the Treaty. That Belgium would do
    so, however, is cold comfort to the appellants who wish to ensure against
    compromise of their intellectual property. This is work for the sending hearing
    judge under s. 15, not for Belgium or for the Minister who acts in Belgium's
    stead under Article 17.

[39]

In resisting the appellants' claims of error in the decision of the
    sending hearing judge, the respondent makes two overarching submissions. The
    first is that, assuming the sending hearing judge had the authority to include
    terms and conditions of the nature requested here, he made no error in failing
    to do so. The second is that inclusion of such terms and conditions would have
    exceeded the authority for which s. 15(1)(b) of
MLACMA
provides.

[40]

The respondent says that the record is bereft of any evidentiary
    foundation to impose the requested terms, even if s. 15(1)(b) authorizes their
    inclusion in a sending order, which the respondent contests. After all, Article
    17 of the Treaty prohibits Belgium from disclosing or using information or
    evidence furnished for purposes other than those stated in the Request. There
    is no evidence that Belgium would fail to adhere to its disclosure and use
    obligations under Article 17 of the Treaty. The sending hearing judge found
    that there was no air of reality to the allegation that Belgium was acting in
    bad faith. To impose terms or conditions placing limitations on use where this
    issue is already addressed by the Treaty would impugn the good faith of
    Belgium. To the extent that the material is disclosed to other parties in the
    course of the criminal proceedings in Belgium, Belgian law restricts the use of
    the material to legitimate purposes.

[41]

The respondent reminds us that the Minister and the judiciary have
    different responsibilities at different stages of the mutual legal assistance
    process. These different responsibilities must be kept in mind in interpreting
    the judge's role at the sending hearing under s. 15(1) of
MLACMA
. The
    judge must be satisfied that the relevant search warrant was executed in
    accordance with its terms and that the records or things seized should be sent to
    the Requesting State.

[42]

According to the respondent, the discretion conferred on the sending
    hearing judge under s. 15(1)(b) of
MLACMA
is not unbounded, rather is
    circumscribed by the division of responsibility between the Minister and the
    judiciary under
MLACMA
; the Treaty provisions; and the objectives of
    the mutual legal assistance regime. The authority under s. 15(1) must be
    exercised in a way that is consistent with the Act and provides the widest measure
    of mutual assistance in criminal matters as required by Article 1 of the
    Treaty. Any conditions imposed under s. 15(1)(b) cannot infringe on the
    Minister's authority to ensure compliance with the Treaty, or the Requesting State's
    authority to conduct proceedings within its jurisdiction in accordance with its
    own procedure.

[43]

The respondent also takes issue with the appellants' reliance on several
    first instance decisions from British Columbia in which terms and conditions
    similar to those sought here have been included in sending orders. The
    respondent says those decisions proceed on an erroneous premise: that the
    principles developed in extradition proceedings apply equally to mutual legal
    assistance proceedings. No such rule of equivalence applies as this court has
    made clear in its rejection of the foundational British Columbia authority of
United
    States of America v. Stuckey
, 2000 BCSC 171, 144 C.C.C. (3d) 184.

The Governing Principles

[44]

The issue framed by the chambers judge for our determination is a narrow
    one. However, it is one that is best informed by a brief canvass of the mutual
    legal assistance process which involves not only a domestic statute, but also
    the Treaty between Belgium and Canada.

The Nature of Mutual Legal Assistance

[45]

Mutual legal assistance is a relationship between the governments of
    sovereign states. It is a relationship born of a desire on the part of both
    states to improve the effectiveness of both countries in the investigation,
    prosecution and suppression of crime through cooperation and mutual legal
    assistance in criminal matters.

[46]

To formalize their mutual legal assistance relationship, the governments
    of sovereign states enter into treaties that define their obligations and the
    manner in which requests for and responses to requests for mutual legal
    assistance are to be carried out. In accordance with the Treaty, each party
    grants the other the widest measure of mutual assistance in criminal matters.

[47]

A country that seeks legal assistance from a Treaty partner makes a Request
    through its central authority to the central authority of the Requested State.
    In this case, the request is made to and the response is made by the central
    authority for Canada  the Minister of Justice  or the officials designated by
    the Minister.

The Purpose of MLACMA

[48]

Treaties between sovereign states require legislation to implement them
    domestically.
MLACMA
is domestic legislation that implements various
    treaties or other arrangements on mutual legal assistance. It sets out the
    procedure for assistance and cooperation to help treaty partners in their
    detection and investigation of crime. Among other things, it provides ways for
    our treaty partners to obtain information from Canadian sources to assist in investigations
    undertaken by the treaty partner:
Russian Federation v. Pokidyshev
(1999), 138 C.C.C. (3d) 321 (Ont. C.A.), at paras. 15-16.

[49]

As a domestic statute,
MLACMA
is subject to the usual rules of
    statutory interpretation, which require courts to look to the words of the
    statute, the scheme of the Act as a whole and Parliament's intention and
    purpose in its passage of the legislation:
Pokidyshev
, at para. 14.

[50]

In general terms,
MLACMA
provides for various methods of
    evidence collection in Canada, post-collection supervision and conveyance of
    the evidence collected to the Requesting Treaty Partner. The Act also assigns
    responsibilities to the Minister, who is responsible for the implementation of
    the Treaty and the administration of the Act:
MLACMA
, s. 7(1).

Requests for Assistance

[51]

A treaty partner, like Belgium, which seeks legal assistance, institutes
    its petition by a Request to the Minister of Justice, the central authority in
    Canada, under para. 1 of Article 15 the Treaty. The Request will describe,
    among other things, the nature of assistance sought:
Treaty
, Article
    14.

Implementing the Request

[52]

When a Request for mutual legal assistance is received, the Minister
    deals with it in accordance with the Treaty and
MLACMA
:
MLACMA
,
    s. 7(2). Where the Request is for or includes a search and seizure, and the
    Minister approves the Request, the Minister provides a "competent
    authority", as defined in s. 2(1) of
MLACMA
, with the documents
    and information necessary to apply for a search warrant:
MLACMA
, s. 11(1).

Issuing the Search Warrant

[53]

Search warrants may be granted by a judge of the Superior Court of
    Justice on an
ex parte
application by the competent authority
    designated by the Minister. The evidentiary support for the application is an
    information on oath which must satisfy certain statutory requirements:
MLACMA
,
    ss. 11(2) and 12(1). The judge who issues the warrant may attach conditions to
    its execution, including but not only conditions relating to the time or manner
    of its execution:
MLACMA
, s. 12(2).

[54]

The judge who issues a search warrant under
MLACMA
has a
    further obligation: to fix a time and place for a hearing to consider the
    execution of the warrant and the report of the peace officer who executed it:
MLACMA
,
    s. 12(3).

The Report to the Issuing Judge

[55]

The officer who executes the search warrant issued under
MLACMA
is required to make a report about its execution, including a general
    description of the records or things seized under the warrant, and file that
    report with the issuing court at least five days before the hearing to consider
    the execution of the warrant:
MLACMA
, s. 14(1). The Minister is
    entitled to a copy of the report forthwith after its filing:
MLACMA
,
    s. 14(2).

The Sending Hearing

[56]

Section 15 of
MLACMA
governs the hearing fixed by the judge who
    issued the warrant to consider the execution of the warrant and the report of
    the peace officer who executed it. For ease of reference, the term
    "sending hearing" is generally applied to this hearing.

[57]

The sending hearing judge must first decide whether the warrant was
    executed according to its terms and conditions, or whether there is some other
    reason why what was seized should not be sent to the Requesting Treaty Partner.
    To inform this decision, the sending hearing judge is required to consider the
    representations of the Minister, the competent authority, the person from whom
    the things were seized under the warrant and anybody else who claims to have an
    interest in anything seized:
MLACMA
, s. 15(1).

[58]

Where the sending hearing judge is not satisfied that there is any
    reason to return the things seized to their owner or the person from whom they
    were seized, the judge may order the record or things seized sent to the Requesting
    Treaty Partner:
MLACMA
, s. 15(1)(b).

Including Terms and Conditions in the Sending Order

[59]

A sending hearing judge who decides to send records or things to the Requesting
    Treaty Partner is authorized to impose any terms or conditions the judge
    considers desirable in the sending order. Among the terms are those necessary
    to give effect to the request; to preserve and return to Canada any record or
    thing seized; and to protect the interests of third parties:
MLACMA
,
    s. 15(1)(b).

[60]

Inclusion of terms or conditions is discretionary. The enabling language
    is the permissive "may", not the presumptive or mandatory
    "shall":
United States of America v. Price
, 2007 ONCA 526,
    225 C.C.C. (3d) 307, at para. 16. However, this discretion to include terms and
    conditions is not unbounded. It must be exercised in a way that:

i.

comports with the language and overall purpose of
MLACMA;

ii.

is consistent with the objectives and principles that underlie
MLACMA
in its broadest sense;

iii.

is consonant with the purpose of a sending order; and

iv.

accords with the principles of statutory interpretation of criminal
    legislation.

See,
Pri
ce
,
at para. 18;
Canada
    (Attorney General) v. Foster
(2006), 215 C.C.C. (3d) 59 (Ont. C.A.), at
    paras. 54, 56.

[61]

Among the objectives of
MLACMA,
two are of particular
    significance. First, the Act fulfills Canada's international obligations to
    cooperate in the investigation of international crime and to provide legal
    assistance in criminal matters to other states. Second, by offering help to
    other states, Canada ensures that those same states will, in their turn,
    provide Canada with assistance when necessary to investigate crimes in which
    Canada has an interest:
Foster
, at para. 55.

[62]

Both the Treaty and the statute must be construed in a fair and liberal
    manner so as to favour Canada's fulfillment of its international obligations
    and Parliament's accomplishment of its legislative objectives:
United
    States of America v. Ross
(1995), 100 C.C.C. (3d) 320 (Que. C.A.), at p.
    324. See also,
Foster
, at para. 57.

[63]

In
Pokidyshev
, this court held that there were limits on the
    discretion of the sending hearing judge. Among other things, the sending
    hearing judge is not concerned with whether it is advisable to assist the
    foreign jurisdiction or whether the foreign jurisdiction will comply with any
    order the judge might make. Both are matters for the Minister:
Pokidyshev
,
    at para. 40.

[64]

While these comments were made in relation to a sending hearing under s.
    20 of MLACMA, regarding an evidence gathering order, the principles are
    applicable to a s. 15 sending hearing as well:
United States of America v.
    El-Jabsheh
, 2002 BCSC 246, 167 C.C.C. (3d) 82, at para. 21.

[65]

Some courts have included terms and conditions in sending orders
    restricting use or disclosure of evidence sent to a requesting treaty partner.

[66]

In
Stuckey
, counsel at the sending hearing agreed on terms
    restricting access to the material while it was in the United States and
    governing its return to Canada, but could not agree on the scope of its use by
    American authorities. The sending hearing judge, Owen-Flood J., agreed that a
    term that would restrict use of the evidence to the specific criminal
    proceedings involving Stuckey and his associates could not be included since it
    could frustrate a legitimate purpose of the Request: to investigate and
    potentially prosecute other related conduct and other persons then unknown:
Stuckey
,
    at paras. 9-10.

[67]

Owen-Flood J. then adapted a form of the specialty principle from
    extradition law to ground a condition that would avoid the potential problems
    of foreign states making requests for assistance based on reciprocated
    offences, only to use the material sent for the investigation and prosecution
    of additional offences for which reciprocity does not exist:
Stuckey
,
    at paras. 11-13.

[68]

In the end, Owen-Flood J. imposed terms and conditions that:

i.

restricted use of the material to criminal proceedings related to the
    offences listed in the Request;

ii.

required United States authorities to apply to the British Columbia
    Supreme Court if they wished to use the material in connection with criminal
    proceedings that related to offences other than those listed in the Request;

iii.

prohibited dissemination of the things or copies to persons other than
    those involved in the criminal proceedings for the listed or approved offences;
    and

iv.

directed the return of the items to Canada on final conclusion of the
    United States proceedings.

See,
Stuckey
, at para. 15.

[69]

In
Canada (Attorney General) v. Pacific Network Services
, 2003
    BCSC 171 (Burnyeat J., in chambers), the sending hearing judge considered that
    it was
always
appropriate to include a term in the sending order that
    restricted use of the items forwarded to criminal proceedings relating to the
    individuals or entities named in the Request. The items should not be used in
    other criminal proceedings including those relating to offences other than
    those listed in the original Request:
Pacific Network Services
, at
    para. 19. The sending hearing judge concluded that there was no other way to
    protect the interests of third parties apart from the inclusion of such a term:
Pacific Network Services
, at para. 20. In addition to the terms
    included in the order of Owen-Flood J., the sending judge in
Pacific
    Network Services
also included a re-application term in the event that
    United States authorities wanted to use the material sent in connection with
    proceedings other than those listed in the original Request. Contrary to the
    approach taken in
Stuckey
, such a further request was to be made by
    the United States of America to Canada, rather than to the sending hearing
    judge:
Pacific Network Services
, at para. 27.

[1]


[70]

Two further authorities warrant brief reference.

[71]

In
Canada (Attorney General) v. Sharples
, 2006 BCSC 1768 (Shabbits
    J., in chambers), the sending judge refused to include a term requiring the
    Treaty partner  the United States of America  to make a further request if it
    (the United States) proposed to use the items sent in proceedings relating to offences
    other than those listed in the original Request. Such a term, the judge
    reasoned, simply required the United States to comply with an Article of the Treaty,
    something the judge was prepared or required to assume and the Minister to
    supervise:
Sharples
, at paras. 11 and 16.

[72]

But the
Sharples
court did include a term that the items sent
    could be used only in connection with criminal proceedings that related to the
    offence listed in the Request:
Sharples
, at paras. 25-26. And this
    despite a term in para. 2 of Article IX of the Treaty that prohibited use or
    disclosure "for purposes other than those stated in the request without
    the prior consent of the Central Authority of the Requested State":
Sharples,
at paras. 13, 25, 26.

[73]

A similar term was imposed in
United States of America v. Bin
,
    2016 BCSC 124, 127 W.C.B. (2d) 382. In that case, a condition was imposed that the
    sent material may only be used for the purposes of a prosecution for the
    offences set out in the search warrant, except by further order of this Court:
    at para. 27.

[74]

This court has rejected the approach and analysis taken in
Stuckey
.
    The principle of reciprocity as found in the extradition context has no place
    in the analysis under MLACMA:
Canada (Commissioner of Competition) v. Falconbridge
    Ltd.
(2003), 173 C.C.C. (3d) 466, at paras. 76-87.

Supervision of Use of Material Sent

[75]

Two provisions govern disclosure and use of materials sent to the
    Requesting Treaty Partner.

[76]

First, the Treaty.

[77]

Article 17 of the Treaty prohibits Belgium from disclosing or using
    information or evidence furnished for purposes other than those stated in the Request
    without the prior consent of the Minister as the central authority of the
    Requested State.

[78]

Second, the Act.

[79]

Section 16 of
MLACMA
prohibits implementation of a sending
    order under s. 15 until the Minister is satisfied that the Requesting State has
    agreed to comply with any terms imposed in respect of the sending abroad of the
    record or thing.

The Principles Applied

[80]

As I will explain, I am satisfied that the sending hearing judge did not
    err in failing or refusing to impose terms and conditions in the sending order
    to minimize the risk that confidential, commercially sensitive information in
    the materials seized under warrant was not inappropriately or unnecessarily
    disclosed to Best's Belgian competitor in related civil proceedings.

[81]

First, some context.

[82]

At the sending hearing, the appellant's primary claim was that a sending
    order should be refused because the Requesting State was acting in bad faith.
    The appellants claimed that Belgium invoked the instrumentality of mutual legal
    assistance by advancing a colourable allegation of fraudulent activity in order
    to obtain for a state-owned or supported competitor commercially sensitive
    documents of Best relating to the design and manufacture of cyclotrons.

[83]

The sending hearing judge found that the claim had no air of reality.
    The appellants had not made a tenable allegation of bad faith. The judge made the
    sending order; and declined to include the terms or conditions sought by the
    appellants as an alternative remedy.

[84]

In this court, the appellants have abandoned their allegation of bad
    faith, no longer contest the sending order and confine their claim to the
    inclusion of terms and conditions to prevent disclosure to and use by their
    Belgian competitor of what they characterize as commercially sensitive
    information.

[85]

The appellants seek two specific terms on appeal:

·

The items or copies of the items are not to be disseminated to
    any private person, party or litigant who is not involved in an official
    capacity in the criminal proceedings.

·

If the Belgian authorities wish to make different use of the
    seized material, they can re-apply to the Superior Court of Justice for such
    permission.

The nature of the mutual legal assistance scheme does
    not favour inclusion of these terms and conditions.

[86]

The fundamental authority for providing mutual legal assistance to a
    foreign jurisdiction is the Treaty or other agreement between the relevant
    sovereign nations. Canada and Belgium have agreed to grant each other the
    widest measure of mutual assistance in criminal matters. The Treaty partners
    exchange promises to fulfill their respective obligations as Requesting and Requested
    States. The mere existence of the Treaty attests to the belief of each partner
    that the other will discharge its obligations and conduct itself in accordance
    with those obligations.

[87]

Under the Treaty, each partner acts through its central authority. All
    requests and responses must be transmitted to and received by that central
    authority. The central authority for Canada is the Minister of Justice.

[88]

As the Requesting State, Belgium is required to observe any conditions
    imposed by the Requested State, Canada, in relation to any seized documents,
    records or objects that may be delivered to Belgium under para. 3 of Article 10
    of the Treaty.

[89]

The Request for assistance must include, among other things, a
    description of the nature of the investigation or proceedings; a summary of the
    relevant facts; and a copy or summary of the relevant laws. And the Requesting
    State must not disclose or use information or evidence furnished for purposes
    other than those stated in the Request without the prior consent of the
    Minister of Justice, the central authority of the Requested State, in this
    case, Canada.

[90]

In the result, the Treaty makes it clear that use and disclosure of the
    assistance provided, as for example information, objects and things seized
    under warrant, is confined to the purpose stated in the Request. No other use
    or disclosure is permissible except with prior consent. And the only authority
    who can provide that consent, which must precede the proposed expanded use or
    disclosure, is the Minister of Justice.

[91]

It is
MLACMA
that implements the Treaty domestically and
    assigns responsibilities to the Minister and the judiciary. These roles are discrete.
    They are not transferable. To each, his or her own. The Treaty and
MLACMA
work together as part of an integrated whole.

[92]

Second, the role of the sending hearing judge under s. 15(1) of
MLACMA.
The primary role of the sending hearing judge is to ensure that the
    statutory conditions precedent to the making of a sending order have been met.
    This requires the judge to examine whether the warrant was executed according
    to its terms and conditions and whether there is any other reason why what has
    been seized should not be sent. The judge must ensure that the sending order
    strikes an appropriate balance between any state and individual interests
    engaged by the sending order.

[93]

Third, the discretion to impose terms and conditions under s. 15(1)(b)
    of
MLACMA
is circumscribed by the division of responsibility between
    the Minister and the judiciary; the provisions of the Treaty; and the
    objectives of the mutual legal assistance scheme. This discretion does not
    extend to imposing terms and conditions that interfere with the conduct of an
    investigation or proceedings in the Requesting State. Nor does it assume that
    the Minister of Justice will not fulfill her role under
MLACMA
or the
    Treaty, or that the Requesting State will not adhere to its Treaty obligations
    about use and disclosure of sent material.

[94]

Finally, the British Columbia authorities the appellants muster in
    support lack persuasive force. In large measure, they transport principles of
    extradition law to the mutual legal assistance context, as for example, the
    dual criminality requirement. The prevailing jurisprudence in
this
province is that mutual legal assistance proceedings do
not
require
    dual criminality.

[95]

In addition, the British Columbia cases include a term or condition that
    seems redundant in light of the restricted use and disclosure provisions of the
    Treaty. What is more, their inclusion of a term that requires a further
    application to the court that made the sending order, if expanded use or
    disclosure is sought, is at odds with the Treaty requirement that assigns this
    responsibility to the Minister of Justice.

[96]

The sending judge did not err in failing to include terms limiting the
    disclosure and use of the seized material. This is not to say that parties
    cannot craft appropriate terms and conditions to attach to a sending order. The
    Treaty contemplates the imposition of conditions. Under Article 10, the
    Requesting State shall observe any conditions imposed by the Requested State in
    relation to seized documents. The Act, which gives effect to this Treaty, also contemplates
    discretion to impose terms and conditions, as demonstrated by the language of
    s. 15(1)(b) and s. 16. Appropriate terms would do more than merely repeat the protections
    already afforded to the parties by the Treaty and would not frustrate the
    purposes of the Act.

[97]

For example, if the material was clearly not relevant to the
    investigation or was privileged, redactions may be an appropriate exercise of
    the sending judges discretion. Irrelevant material may also be omitted from
    the sending order: see,
United States v. Equinix Inc
., 2017 ONCA 260. However,
    this request was not made at the sending hearing in this case and the sending
    hearing judge can hardly be faulted for failing to omit any material from his
    order. Instead, the appellants at the sending hearing argued these matters in
    the abstract and relied upon largely undefined intellectual property concerns.

CONCLUSION

[98]

For these reasons, I would dismiss the appeal.

Released: May 1, 2017 (JL)

David Watt J.A.

I agree. John Laskin
    J.A.

I agree. E.E. Gillese
    J.A.





[1]
The Attorney General of Canada sought leave to appeal from the decision of the
    sending hearing judge on the ground that he erred in holding that he was bound
    by the decision of Owen-Flood J. and also erred in imposing conditions under
    the provisions of s. 20 of the Act. Leave was refused on the basis that the
    issue raised was not of importance and that there was no reasonable prospect of
    success because s. 20 permitted the inclusion of conditions:
Canada
    (Attorney General) v. Pacific Network Services
, 2003 BCCA 685, 190 B.C.A.C.
    289 (Oppal J.A., in chambers).


