Crown chided by appeal court for ‘abusive’ tactics

The Ontario Court of Appeal has sent a message that it won’t tolerate high-handed tactics by the Crown with the release of its decision in the United States v. Fafalios extradition case.

“This is the only case I can remember where a court was so offended by the conduct of the Crown that it wouldn’t even look at the merits of the appeal,” says Richard Shekter of Toronto’s Shekter Dychtenberg LLP, who represented respondent George Fafalios.

The case arose in the context of an extradition proceeding
against George and Marc Fafalios. Canadian authorities had arrested them in relation to an alleged scheme to defraud several American corporations. They were facing criminal charges, including fraud over $5,000.

The scenario is uncomplicated. The Crown attorney, Richard Kramer of Justice Canada, didn’t like Ontario Superior Court Justice Nancy Backhouse’s order requiring the Crown to produce certain documents.

So he told the court he wasn’t going to comply and invited the court to stay the proceedings or grant a discharge.

“He provided no notice of his intention to take this step,” wrote Justice Gloria Epstein on behalf of a Court of Appeal bench composed of fellow justices David Doherty and Stephen Goudge.

“He provided no explanation for refusing to provide further disclosure and requesting that the proceedings be terminated.”

Indeed, Epstein noted, the Crown’s “steadfast and only position” throughout the dispute over disclosure was that Shekter’s motion for exclusion of evidence based on a breach related to the Charter of Rights and Freedoms “was doomed to fail” and was irrelevant.

Backhouse discharged the respondents and indicated she was also prepared to make an order staying the proceedings as an abuse of process.
Kramer was hardly caught by surprise.

“It is not disputed that at the conclusion of the hearing on Nov. 26, 2010, the Crown had in hand two notices of appeal — one in the event that a stay was imposed and the other available if the court granted a discharge,” Epstein noted. The latter notice of appeal, dated Nov. 26, 2010, was served and filed with this court that day.”

It’s possible, however, that Moiz Rahman and Monika Rahman, who represented the Crown on appeal and presented substantive arguments that counsel at trial hadn’t advanced, were prepared for the Court of Appeal’s response to the case.

“We got a factum from the Crown that was entirely substantive and I decided that my primary and basically only argument in response was that the court shouldn’t even listen to this because the conduct of the Crown constituted an abuse of process,” says Shekter.

As it turned out, the strategy worked well.
“I am . . . of the view that this court should exercise its inherent jurisdiction to protect its process and dismiss the appeal without considering the merits of the impugned order,” Epstein concluded.

Generally speaking, orders in extradition proceedings, like interlocutory orders in criminal matters, can be challenged on appeal only after the proceedings are complete and the court makes a final order.

“The policy reasons underlying the bar against interlocutory appeals include the promotion of efficiency and protecting the system and those involved in it from the disadvantages associated with fragmentation,” Epstein wrote.

“In my view, these concerns are especially relevant in the extradition process which is, by design, an expedited process that is less complex and extensive than a criminal trial.”

The exceptions to the rule against interlocutory appeals are narrow and, according to Epstein, “limited to two types of circumstances [that put] the Crown in the position where there is no reasonable alternative.”

Such circumstances occur where the interlocutory ruling excludes evidence of such importance that it makes no sense for the Crown to continue or it raises a reasonable prospect of harm to an interest the court deems worthy of protection, such as the identity of an informant or solicitor-client privilege.

The burden of falling within the exceptions, however, is a heavy one.

“The onus on the Crown is formidable due to the exceptional nature of a procedure that essentially circumvents the rule against a direct appeal from an interlocutory order but also involves a party appealing from an order that the party expressly requested,” Epstein wrote.

Here, the Crown argued on appeal that the court should invoke the exception because there were two interests worthy of protection: privileged communications and the protection of international relations.
But Epstein would have none of it.

“Not surprisingly, given the fact that the two issues the Crown now raises in support of its argument that it had no reasonable alternative but to ‘fold its tent’ and appeal were not argued in the court below, the Crown faces another insurmountable problem — there is nothing in the record to support either concern,” she wrote.

As far as privilege was concerned, the Crown had waived it during the disclosure proceedings. At the same time, she found the claim about possible harm to international relations was no more than a “bald assertion.”

As well, according to Epstein, coming to court with notices of appeal in hand only aggravated the abuse with “high-handed and disrespectful” conduct supporting the conclusion that the Crown’s refusal to continue was “for the sole purpose of obtaining an interlocutory appeal on an adverse ruling” and therefore “an unfair and abusive exercise of prosecutorial discretion.”

While the final outcome of the case was unsatisfactory, the court put the responsibility on the Crown.

“It chose to bring the proceedings to an end without explanation,” Epstein noted. “It then found itself in this court with a record that was devoid of evidence to justify the extraordinary procedure it chose to follow.”

Carole Saindon, a spokeswoman for Justice Canada, would say only that the department was reviewing the matter.

Shekter says he has had no indication yet that the Crown intends to seek leave to appeal to the Supreme Court of Canada.

“Because of the summer recess, however, the time period for seeking leave doesn’t run out until the end of September,” he notes.

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