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Monday, June 05, 2017 @ 8:17 AM  

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Appeal by Suthanthiran, Best Theratronics (Best) and Best Medical Belgium (BMB) from a sending order granted in favour of the Belgian government. Suthanthiran was the founder and owner of Best, which was in the business of cancer diagnosis and treatment. Best manufactured cyclotrons, machines that produced radioactive isotopes for use in radiation therapy. Belgian authorities sought Canada’s assistance in investigating whether three transactions, involving a loan and the purchase and sale of two cyclotrons, were criminal offences in Belgium. The Attorney General of Canada obtained a search warrant for Best’s offices in Canada for records relating to the alleged criminal transactions. The premises were searched and records were seized. Suthanthiran claimed that the records seized contained a vast array of commercially sensitive information, valuable to Best’s competitors, but of little value in the criminal prosecution. Belgium sought a sending order. Best wanted the order tailored to ensure that a state-owned competitor of Best did not get access to the commercially sensitive information. The sending order was granted, without any conditions restricting access to the documents to those involved in the criminal prosecution. The sending hearing judge found no evidence that Belgium was acting in bad faith or that the Request for assistance was part of a conspiracy to obtain intellectual property belonging to Suthanthiran and Best. The sending hearing judge also found that Suthanthiran’s concerns were answered by the mutual legal assistance treaty between Canada and Belgium which precluded Belgium from disclosing or using the information sent, except for the purpose of the criminal fraud investigation, without the prior consent of the Minister of Justice.

HELD: Appeal dismissed. The sending hearing judge did not err in failing to include terms limiting the disclosure and use of the seized material. Belgium was bound by the treaty to use the information only for the purpose it was sought, namely, the criminal investigation of Suthanthiran and Best. The sending hearing judge fulfilled his duty to ensure that the conditions precedent to the order were met, by examining whether the warrant was executed according to its conditions, and whether there was any other reason not to send the information seized. The judge did not have discretion under the Mutual Legal Assistance in Criminal Matters Act to impose terms on the sending order that interfered with the conduct of the investigation or proceedings in Belgium. Nor did the Act assume that the Minister of Justice and Belgium authorities would not adhere to their treaty obligations.

Belgium v. Suthanthiran, [2017] O.J. No. 2183, Ontario Court of Appeal, J.I. Laskin, E.E. Gillese and D. Watt JJ.A., May 1, 2017. Digest No. TLD-June52017001