Simon's Legal Resources

Private Prosecutions - Use of Criminal Code Investigative Procedures

. R. v. Gong

In R. v. Gong (Ont CA, 2020) the Court of Appeal considered an appeal where a party was the target of Criminal Code investigative procedures by the Ontario Securities Commission. The case is interesting for the use of CCC investigative procedures for what is technically a private criminal prosecution:

[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.