Court of Appeal of Quebec

Autorité des marchés financiers c. Baazov

Ruel, Moore, Bachand

Appeal from a Superior Court judgment granting an application to return seized property. Dismissed.

In 2016, during an investigation into insider trading, the appellant seized and copied many electronic media belonging to various respondents that contained over 16 million documents. Applications for further detention of the seized documents were granted in accordance with article 133 of the Code of Penal Procedure (CQLR, c. C-25.1). In 2019, the appellant informed the respondents that no penal or administrative proceeding would be brought against them following its investigation. The trial judge had to decide whether, in the circumstances, the appellant, who had to return the seized property, could still keep a copy of the seized information. She concluded that it could not, authorized the sealed documents to be returned to the respondents’ representative, and ordered the appellant to destroy the documents, hence the appeal. The issue of the basis of the impugned judgment and, consequently, the right of appeal, must be considered prior to the merits of the dispute.

The judge of first instance did not have jurisdiction because article 133 of the Code, which confers jurisdiction on the Superior Court to further detention, does not authorize an order for its return or destruction. Article 138 of the Code deals with the return of property, and the power is conferred on a judge of the Court of Québec, a municipal court, or even a justice of the peace. It is difficult to fault the judge because no party raised the issue of jurisdiction. To the contrary, they all asked the judge to continue hearing the case even though the appellant withdrew its last application for further detention. It is possible to agree, as the parties submit, that it was the most practical solution, but neither efficiency, proportionality, nor the proper administration of justice can confer jurisdiction on a court without the legislature’s intervention.

This Court cannot intervene as it does not have jurisdiction to hear the case. In matters involving an “order directing that a thing seized ... be detained, forfeited or returned”, article 266 subparagraph (6) states that the appeal is to the Superior Court. A party may appeal to the Court of Appeal only at the secondary appellate level, only on a question of law and after obtaining leave, in accordance with article 291 of the Code. The only right of appeal available to the appellant is under section 40(1) of the Supreme Court Act (R.S.C. 1985, c. S-26), which confers general jurisdiction on the Supreme Court of Canada over federal and provincial law. It is certainly not the most efficient solution for the parties, but practical considerations cannot serve as the basis of an adjudicative jurisdiction that does not exist.

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