DATE: 20021219

DOCKET: C37319

COURT OF APPEAL FOR ONTARIO

ROSENBERG, CRONK and GILLESE JJ.A.

B E T W E E N:

THE UNITED STATES OF AMERICA

Respondent

• and -

PAUL B. WILSON

Appellant

Paul B. Wilson on his own behalf

A. Sabbadini for the respondent

Heard: September 23, 2002

On appeal from the committal order of Justice Edward G. McNeely dated November 14, 2001.

GILLESE J.A.:

[1] Paul B. Wilson brings an inmate appeal from an order committing him to be held in custody, pending his surrender for extradition to the United States, in relation to an escape custody charge in Texas.

Background

[2] The appellant is a Canadian citizen. He was born in Toronto in 1968 but lived in Wisconsin during the 1990s. While in Wisconsin, he was convicted of a number of acts of burglary, attempted burglary, forgery and criminal damage to property for which he received a global sentence of twenty-five years imprisonment followed by six years of probation.

[3] The following is a brief summary of the Wisconsin offences.

[4] On September 7, 1997, the appellant broke into Spee-Dee Delivery, a business where he had been working, and stole cash, computer components and electronic equipment valued in excess of $1,000. He pleaded no contest to the charge of burglary and was found guilty on February 20, 1998. On April 29, 1998, he was sentenced to five years imprisonment in the state prison.

[5] The appellant was next charged with five counts of being party to the crime of forgery and uttering of a forged document. He entered pleas of no contest to the first two counts. Counts three, four and five were dismissed. At the time of sentencing on April 29, 1998, in addition to the original five counts charged in the complaint, a further seventeen counts of forgery were read into the record for purposes of disposition. The appellant was sentenced to probation for six years and ordered to pay $11,845 in restitution.

[6] On June 5, 1998, the appellant pleaded guilty to a single count of forgery, as party to the crime. He was sentenced to ten years in the Wisconsin state prison, which sentence was stayed, and the appellant was placed on probation for six years consecutive to the five-year prison sentence he received on April 29, 1998.

[7] The appellant was charged with three further counts of burglary and one count of attempted burglary. He was convicted of two counts of burglary and one count of attempted burglary. On April 7, 1999, he was sentenced to ten years in prison, consecutive, in respect of one burglary count, five years in prison, consecutive, on the second burglary count, and five years in prison, consecutive, for attempted burglary.

[8] The appellant was sent to a Wisconsin state prison to begin serving his sentences. Under an agreement with the state of Texas, Wisconsin transferred the appellant to the Titus County Jail in northeast Texas to serve the balance of his Wisconsin sentences.

[9] On October 5, 1999, while working outside the Titus County Jail as part of a work crew, the appellant walked away from the work site, without authorization, and did not return.

[10] At the time of his escape, there were fifteen years, seven months and twenty-six days remaining to be served on the appellant’s Wisconsin sentences.

[11] On November 16, 1999, the appellant was arrested on a provisional arrest warrant pursuant to section 13 of the Extradition Act, S.C. 1999, c.18 (the “Act”). The warrant did not specify a United States charge but the request pursuant to which the warrant was issued referred to the Texas charge of escape from secure correctional facility. The request did not refer to the Wisconsin matters.

[12] The appellant has remained in custody since arrest, bail having been refused.

[13] On January 13, 2000[^1], by way of Diplomatic Note No. 013, the United States formally requested the appellant’s extradition in respect of both the Texas and Wisconsin matters.

[14] The United States furnished materials in support of the extradition request on both the Texas and Wisconsin matters on January 14, 2000 and again on February 14, 2000.

[15] On February 14, 2000, the Minister of Justice issued an authority to proceed in respect of the Canadian offences that correspond to the Wisconsin convictions.

[16] On March 7, 2000, the United States filed Diplomatic Note No. 168, requesting extradition with respect to the Wisconsin charges alone.

[17] On March 20, 2000, the United States issued Diplomatic Note No. 185, which clarified that the appellant faced charges in both Texas and Wisconsin. The Texas and Wisconsin offences were restated in full.

[18] On April 6, 2000, while represented by counsel, the appellant consented to the issuance of an order of committal for extradition on the Wisconsin charges. At the extradition hearing, Then J. issued an order of committal for surrender to the United States with respect to the Canadian offences that correspond to the Wisconsin convictions (the “first committal order”).

[19] On April 25, 2000, the Minister of Justice issued a second authority to proceed. It authorized the Attorney General to seek a committal order in respect of escape lawful custody, contrary to s. 145(1) of the Criminal Code, R.S.C. 1985, c. C-46, the Canadian equivalent of the Texas offence.

[20] On September 13, 2000, the Attorney General obtained an ex parte warrant for the appellant’s arrest, pursuant to s. 16 of the Act, with respect to the escape lawful custody charge.

[21] The appellant brought an application to set aside the first committal order on the basis that he consented to it in the expectation that the Minister of Justice would not issue an authority to proceed in respect of the Texas charge.

[22] Juriansz J. dismissed that application on September 24, 2001, holding that the court had no jurisdiction to set aside the order.

[23] A second extradition hearing was held in response to the United States’ request that the appellant be extradited on the Texas charge. The record before this court does not contain a notice of application or supporting documentation by the appellant. However, in his reasons for decision, the extradition judge refers to an application brought by the appellant, which was dealt with as part of the extradition hearing. From those reasons, it appears that the appellant brought an application at the outset of the second extradition hearing, asking that the extradition judge stay the committal hearing or discharge him.

[24] The appellant was represented by counsel at the second extradition hearing. It appears that the appellant, through his counsel, advanced two arguments in support of his request that a stay of proceedings be ordered. First, he argued that as no authority to proceed in respect of the Texas matter was issued within the period specified by s. 14(1)(b)(ii) of the Act, he was entitled to be discharged. Second, he argued that he would not have consented to extradition on the Wisconsin convictions if he had known that the Minister of Justice was going to later issue an authority to proceed on the Texas charge.

[25] The appellant gave brief evidence at the hearing. He said that when the first authority to proceed arrived, he was shocked to find that extradition was being sought by Wisconsin but not Texas. Thereafter, his lawyer negotiated an arrangement under which the appellant would consent to extradition to Wisconsin in accordance with the terms of the first authority to proceed. The appellant testified that, based on his conversations with his counsel and with the Crown prosecutor, he believed the United States would proceed on the Wisconsin extradition request alone. On that basis, he consented to extradition to Wisconsin. On cross-examination, the appellant conceded that no one explicitly represented to him that the Texas charge would not be pursued.

[26] The extradition judge rejected the appellant’s submission based on s. 14 of the Act, stating:

At the present time, he is detained in custody pursuant to a committal order of Mr. Justice Then, dated April 6, 2000, respecting the Wisconsin convictions, as well as the arrest warrant issued on September 13, 2000, under s. 16 of the Extradition Act in relation to the Texas charge we are dealing with.

The fact that at some date in the past, Mr. Wilson might have been set free if the only reason for his detention was the provisional arrest warrant of November 16, 1999, does not mean that he can now be set free, when he is detained not on that provisional arrest warrant but on the committal for surrender order of April 6, 2000, with respect to the Wisconsin charge and the s. 16 arrest warrant issued on September 13, 2000, in respect of the Texas charge we are dealing with.

The further argument that the words “must be discharged” in s. 14 of the Extradition Act means discharge from the extradition proceedings rather than discharge from the provisional arrest is without merit. The words of article 11 of the Treaty and of s. 14 of the Act do not support such an interpretation and neither does the fact that in many of the cases where s. 14(1)(b)(i) would become operative there would not, as yet, be any request for extradition at all.

Accordingly, the first submission must fail.

[27] The extradition judge also rejected the appellant’s second argument, holding that the facts did not establish an abuse of process:

The second submission of Mr. Wilson, through his counsel, is that he would not have consented to extradition on the Wisconsin convictions if he had known that the Minister of Justice was going to later issue an authority to proceed on the Texas charge. Mr. Wilson, in his evidence, did not allege any misrepresentation by counsel for the Attorney General or anyone else leading to his consent to extradition on the Wisconsin convictions. At its highest, his evidence was that he believed no authority to proceed on the Texas charge would issue, and that he further believed that his then lawyer and counsel for the Attorney General, neither of whom gave evidence, shared a similar belief.

There is no suggestion that anyone at any time gave him assurances that extradition on the Texas charge would not proceed.

Clearly, on these facts, no issue of abuse of process reaching into the present extradition proceedings arises.

The second submission also fails.

[28] After dismissing the stay application, the extradition judge considered the extradition request and satisfied himself that the evidence justified committal for trial on the equivalent Canadian charge of escaping lawful custody and that Mr. Wilson was the person sought for extradition.

[29] On November 14, 2001, the extradition judge committed the appellant into custody to await surrender to the United States in relation to the Texas charge.

[30] The extradition judge added the following, by way of a report to the Minister of Justice under s. 38(1)(c) of the Act:

Mr. Wilson has already served, as actual time in custody in Canada, an amount of time equal to the maximum sentence of two years, which he could have served in Canada for the Canadian equivalent offence of escape lawful custody under s. 145(1) of the Criminal Code.

[31] The appellant appeals to this court from the committal order of November 14, 2001, in the following terms:

[M]y appeal is based on the judge’s decision to commit me for extradition to the U.S. (Texas) escape custody. The judge overlooked my attorney’s (P. Slansky) argument that due to Section 14 of the Extradition Act that I must be discharged because the “Authority to Proceed” did not arrive in the prescribed time limits. Mr. Slansky further argued that re-arresting me to “start anew” was abuse of process, the effects of this new arrest also had a negative effect on my pre-arranged agreement with the state of Wisconsin. Mr. Slansky further argued that the actions of the crown attorney coupled with this negative effect again constituted abuse of process. The judge disagreed. I appeal. The law prescribes I be discharged and there is case law describing “abuse of process” in similar situations as mine. I wish this matter heard to better clarify the meaning of Section 14 of the Extradition Act for myself as well as future accused facing extradition. When time limits are missed, can the Crown simply re-arrest and start anew? Why then have time limits?

Issues

[32] There was clear and sufficient evidence before the extradition judge to justify the appellant’s committal for trial on the equivalent Canadian charge of escaping lawful custody. The identity of the appellant was not in question.

[33] The notice of appeal does not question the merits of the committal order. Rather, Mr. Wilson appeals from the dismissal of his stay application that was heard as part of the second extradition proceeding.

[34] In order to determine whether the extradition judge erred in dismissing the stay application, two issues must be addressed:

(1) Did the extradition judge err in concluding that the appellant should not be discharged from the extradition proceedings under s. 14(1)(b)(ii) of the Act because the second authority to proceed was not issued within the prescribed time limits?

(2) Was the issuance of the second authority to proceed an abuse of process? If so, does the abuse warrant the appellant’s discharge?

The Relevant Legislation

[35] In determining these issues, ss. 4, 13, 14, 15 and 16 of the Act, set out below, must be considered.

4. For greater certainty, the discharge of a person under this Act or an Act repealed by section 129 or 130 does not preclude further proceedings, whether or not they are based on the same conduct, with a view to extraditing the person under this Act unless the judge is of the opinion that those further proceedings would be an abuse of process.

13.(1) A judge may, on ex parte application of the Attorney General, issue a warrant for the provisional arrest of a person, if satisfied that there are reasonable grounds to believe that

(a) it is necessary in the public interest to arrest the person, including to prevent the person from escaping or committing an offence;

(b) the person is ordinarily resident in Canada, is in Canada or is on the way to Canada; and

(c) a warrant for the person’s arrest or an order of a similar nature has been issued or the person has been convicted.

14.(1) A person who has been provisionally arrested, whether detained or released on judicial interim release, must be discharged

(a) when the Minister notifies the court that an authority to proceed will not be issued under section 15;

(b) if the provisional arrest was made pursuant to a request made under an extradition agreement that contains a period within which a request for extradition must be made and the supporting documents provided,

(i) when the period has expired and the extradition partner has not made the request or provided the documents, or

(ii) when the request for extradition has been made and the documents provided within the period but the Minister has not issued an authority to proceed before the expiry of 30 days after the expiry of that period; or

15.(1) The Minister may, after receiving a request for extradition and being satisfied that the conditions set out in paragraph 3(1)(a) and subsection 3(3) are met in respect of one or more offences mentioned in the request, issue an authority to proceed that authorizes the Attorney General to seek, on behalf of the extradition partner, an order of a court for the committal of the person under section 29.

16.(1) The Attorney General may, after the Minister issues an authority to proceed, apply ex parte to a judge in the province in which the Attorney General believes the person is or to which the person is on their way, or was last known to be, for the issuance of a summons to the person or a warrant for the arrest of the person.

[emphasis added]

[36] These sections of the Act must be read in conjunction with Article VI of the Treaty on Extradition Between the Government of Canada and the Government of the United States (Amended by an Exchange of Notes), 3 December 1971, Can. T.S. 1976 No. 3 (entered into force 22 March 1976), as amended by the Protocol amending the Treaty on Extradition between the Government of Canada and the Government of the United States, 11 January 1988, Can. T.S. 1991 No. 37 (entered into force 26 November 1991) (the “Treaty”). Article VI reads as follows:

Article VI:

Paragraph (3) of Article 11 of the Extradition Treaty is deleted and replaced by the following:

(3) A person arrested shall be set at liberty upon the expiration of sixty days from the date of arrest pursuant to such application if a request for extradition and the documents specified in Article 9 have not been received. This stipulation shall not prevent the institution of proceedings with a view to extraditing the person sought if the request and documents are subsequently received.

Analysis

Issue #1: Discharge Pursuant to s. 14 of the Act

[37] There are two forms of arrest under the Act: provisional arrest pursuant to s. 13 and “straight” arrest pursuant to s. 16. In each case, the arrest warrant is issued upon application by the Attorney General of Canada.

[38] Where a provisional arrest warrant has been issued, s. 14, read in conjunction with Article VI of the Extradition Treaty, sets out certain deadlines within which the request for extradition must be received and the authority to proceed issued. In the appellant’s case, the United States as requesting state, had sixty days within which to provide a formal request for extradition. Thereafter, the Minister of Justice had thirty days to issue an authority to proceed.

[39] These deadlines exist to protect the accused from being detained without charge.

[40] Where the established deadlines are not met, s. 14 provides that the person arrested “must be discharged” from custody.

[41] A straight arrest warrant under s. 16 may issue only after the Minister of Justice has issued an authority to proceed pursuant to s. 15 of the Act. Section 15 provides that the Minister may issue an authority to proceed after receiving a request for extradition.

[42] By its terms, s. 14 applies only to those who have been provisionally arrested. A plain reading of ss. 15 and 16 confirms that the deadlines in s. 14 do not apply to straight arrest situations. Logic compels the same conclusion. A straight arrest warrant may be obtained only after a request for extradition has been received and an authority to proceed has already issued. As the authority to proceed enumerates the charges against the person, there can be no detention without charge.

[43] The appellant was arrested on November 16, 1999, under a provisional arrest warrant. The Minister of Justice did not issue an authority to proceed in respect of the Texas charge within the time limits set out in s. 14. If the appellant were being detained pursuant only to the November 1999 provisional arrest, he would be entitled to a s. 14 discharge in respect of his arrest on the Texas charge.

[44] However, the appellant’s provisional arrest was superseded by his straight arrest in respect of the Texas charge pursuant to the September 13, 2000 warrant. The straight arrest was based on the second authority to proceed, to which the time limits in s. 14 did not apply.

[45] Section 4 of the Act explicitly provides that discharge does not preclude further proceedings based on the same conduct unless those further proceedings constitute an abuse of process. Thus, so long as the further proceedings did not constitute an abuse of process, s. 4 gave the Minister the authority to issue the second authority to proceed and the Attorney General the authority to apply for the s. 16 warrant, regardless of whether a s. 14 discharge was in place or could have been obtained.

[46] Therefore, the extradition judge did not err in concluding that the appellant was not entitled to be discharged on the basis that the second authority to proceed was not issued within the time lines imposed by s. 14 of the Act in respect of the Texas charge.

Issue #2: Abuse of Process

[47] It is established law that an appellate court should not interfere with a trial judge’s findings of fact, absent a palpable and overriding error in the understanding of the evidence. In my view, the established standard of review applies to findings of fact by judges in extradition hearings. The extradition judge had the opportunity to observe the witness and hear his testimony first hand. He was, therefore in the best position to determine the facts.

[48] The extradition judge found that no assurance had been given by the requesting state or by the Attorney General that further proceedings would not be commenced and that extradition on the Texas charge would not be sought. He found that, at most, the appellant believed that no authority to proceed on the Texas charge would issue.

[49] There is no basis for interference with these findings of the extradition judge.

[50] In light of such findings, the issuance of the second authority to proceed cannot be said to have prejudiced the appellant.

[51] A stay of proceedings to remedy an abuse of process should be granted where “compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency” or where the proceedings are “oppressive or vexatious”. It is a remedy to be granted only in the “clearest of cases”. See R. v. Cobb (2001), C.C.C. (3d) 270 (S.C.C.).

[52] There is nothing in the record before this court to suggest that the authorities were “hiding the possibility of extradition” on the Texas charge from the appellant or that the method of proceeding was motivated to gain a tactical advantage. See R. v. Larosa (2002), 166 C.C.C. (Ont. C.A.).

[53] Section 4 of the Act expressly authorizes the taking of further proceedings on the same conduct, so long as those proceedings are not an abuse of process. Given such authority and the absence of any assurance that proceedings in relation to the Texas charge would not be taken, in my view, the second authority to proceed and subsequent proceedings do not violate the community’s sense of fair play nor can they be said to be oppressive or vexatious. They do not constitute an abuse of process. It is not appropriate to bar the United States and Canada from proceeding on the Texas charge.

Conclusion

[54] The extradition judge committed no error in dismissing the stay application. I would, therefore, dismiss the appeal.

“E.E. Gillese J.A.”

“I agree M. Rosenberg J.A.”

“I agree E. A. Cronk J.A.”

Released: December 19, 2002

[^1]: NB. The Diplomatic Note is itself incorrectly dated January 13, 1999.