COURT OF APPEAL FOR ONTARIO
FINLAYSON, DOHERTY and O'CONNOR JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN (MINISTER OF JUSTICE) (Respondent)
–and–
HOWARD SHULMAN (Applicant)
David Littlefield and Kevin Wilson, for the respondent
Chris N. Buhr, for the applicant
Heard: May 25, 2000
On appeal pursuant to s.25(2) of the Extradition Act, R.S.C. 1985, c.E-23, as amended by 1992 (Can.), c.13, s.5, for judicial review of the Order of the respondent directing the applicant’s surrender to the United States of America, the Requesting State, in connection with outstanding extradition proceedings.
BY THE COURT:
[1] On July 19, 1994, a federal grand jury sitting in Harrisburg, Pennsylvania, U.S.A. returned an indictment charging the applicant, together with 24 other individuals and eight corporations, with one count of conspiracy to commit mail fraud and wire fraud, and 51 substantive counts of mail fraud or wire fraud, contrary to certain provisions of Title 18, United States Code. The indictment alleged that the offences occurred between November 1989 and March 1993, relating to the sale of gemstones to U.S. residents by means of telemarketing activities originating in Canada. On December 6, 1994, the requesting state, the United States of America, sought the extradition of the applicant and others by way of Diplomatic Note.
[2] On September 18, 1995, The Honourable Mr. Justice W.D. Lyon committed the applicant for extradition on the single count of conspiracy to commit mail fraud and wire fraud, and discharged him on the 51 substantive counts of mail fraud and wire fraud. Both parties appealed the order of W.D. Lyon J. and the Minister of Justice elected to await the decision of this court before deciding whether to order the surrender of the applicant. On August 19, 1998, this court upheld the order for committal and dismissed the cross-appeal of the requesting state regarding the discharge of the applicant on the other charges of mail fraud and wire fraud: United States of America v. Shulman, (1998) 128 C.C.C. (3d) 475 (Ont. C.A.). Leave to appeal to the Supreme Court of Canada from this Court’s dismissal of the applicant’s appeal was granted on February 18, 1999. The appeal has been argued and judgment has been reserved.
[3] On February 16, 1999, the Minister of Justice ordered the applicant’s immediate surrender to the United States to face trial in the State of Pennsylvania on the single count of conspiracy to commit mail and wire fraud. The applicant applies pursuant to s.25(2) of the Extradition Act, R.S.C. 1985, c.E-23, as amended by 1992 (Can.), c.13, s.5, for judicial review of this order of the Minister.
[4] A number of objections were raised in this application to the order of the Minister but we do not propose to deal with all of them. One objection was to the sufficiency of the reasons given by the Minister in deciding that the applicant’s s.6(1) rights under the Canadian Charter of Rights and Freedoms (“Charter”) to remain in Canada would not be violated by the extradition process. In United States of America v. Cotroni (1989), 1989 106 (SCC), 48 C.C.C. (3d) 193 (S.C.C.), La Forest J. for the majority of the Court dealt with the executive discretion to surrender in the following language at p.226:
In the absence of proceedings against the accused in this country, Canada is under an international obligation to surrender a person accused of having committed a crime listed in an extradition treaty if it meets the requirements of the treaty, in particular presenting sufficient evidence before a judge to satisfy the requirements of a prima facie case.
[5] In dealing with s.6(1) of the Charter, La Forest said at p.225:
Of course, the authorities must give due weight to the constitutional right of a citizen to remain in Canada. They must in good faith direct their minds to whether prosecution would be equally effective in Canada, given the existing domestic laws and international co-operative arrangements. They have an obligation flowing from s.6(1) to assure themselves that prosecution in Canada is not a realistic option.
[6] As we understand the applicant’s position, the Minister is required to conduct her own independent investigation into “whether prosecution would be equally effective in Canada” rather than rely upon the decision of the Attorney General of Ontario not to pursue a prosecution in Ontario and allow the extradition to proceed. We do not agree. The Minister is not obliged to conduct such an investigation. She is entitled, in the absence of any indication that the prosecutor has acted for improper motives, to accept the decision of the authority charged with the responsibility of prosecuting such an offence in Ontario.
[7] We have compared the reasons of the Minister in her letter to applicant’s counsel with the criteria set out in Cotroni, supra, at p.225 and we are satisfied that she exercised her discretion reasonably in light of those criteria.
[8] The second argument we propose to deal with arises out of certain statements attributed to the trial judge and the prosecutor assigned to hear this case in the United States. Those statements more than suggest that any accused to this conspiracy who resists extradition will be treated more harshly than those who surrender voluntarily to the jurisdiction of the State of Pennsylvania. It is submitted by the applicant that the Minister erred in her opinion that the applicant’s s.7 Charter rights to a fair trial would not be violated in view of the assurances that she had received that: (1) the prosecutor whose conduct had been impugned had been removed from the case; (2) the sentencing discretion of the trial judge was narrowly confined and (3) there was a mechanism available through which to challenge the hearing of this matter by the assigned judge based on allegations of bias.
[9] The assurances received by the Minister, combined with the respect we have for the due process inherent in the American judicial system, satisfies us that the Minister made no error in this regard. The system of justice in the United States is constitutionally similar to ours and provides sufficient procedural protections to accused persons: see Kindler v. Canada (Minister of Justice), 1991 78 (SCC), [1991] 2 S.C.R. 779 at pp.845 and 855. We are also reminded that in Argentina v. Mellino, [1987] 1 S.C.R. 536, the Supreme Court stated at pp.554-56:
The assumption that the requesting state will give the fugitive a fair trial according to its laws underlies the whole theory and practice of extradition and our courts have over many years made it abundantly clear that an extradition judge should not give effect to any suggestion that the proceedings are oppressive or that the fugitive will not be given a fair trial….
. . .
There may, it is true, conceivably be situations where it would be unjust to surrender a fugitive either because of the general condition of the governmental and judicial apparatus or, more likely, because some particular individual may be subjected to oppressive treatment. These are judgments, however, that are pre-eminently within the authority and competence of the executive to make. The courts may, as guardians of the Constitution, on occasion have a useful role to play in reviewing such decisions, but it is obviously an area in which courts must tread with caution.
[10] Finally, there were two issues raised as to a lack of disclosure on the part of the Minister. One related to information gathered by Canadian police in the course of their investigation. There is nothing in the record to indicate that the Minister had available to her the requested investigative reports and other material in the possession of the appropriate Canadian police forces. Additionally, the relevance of this material to the Minister’s assessment of the applicant’s claim under s.6(1) of the Charter has not been shown.
[11] The second issue related to disclosure of the material made available by U.S. authorities to the Minister regarding their assurances with respect to the s.7 issue. In view of our disposition of that matter, we do not feel that we have to deal with this submission except to comment that this is a late blooming interest in light of counsel’s expressed view to the Minister, in a letter dated September 21, 1998, that no assurances from the U.S. prosecutorial authorities or judiciary would be adequate in the applicant’s case.
12Accordingly, the application is dismissed.
Signed: “G.D. Finlayson J.A.”
“Doherty J.A.” “Dennis O’Connor J.A.”
