United States of America v. Kavaratzis, 2004 CanLII 18251 (ON CA)

DATE: 20040121

DOCKET: C38996

COURT OF APPEAL FOR ONTARIO

BORINS, MacPHERSON and CRONK JJ.A.

B E T W E E N :

THE UNITED STATES OF AMERICA

Kevin Wilson and Chris DeSa, for the appellant

Appellant

• and -

JOHN KAVARATZIS

John Norris, for the respondent

Respondent

Heard: September 19, 2003

On appeal from the judgment of Justice Bruce C. Hawkins of the Superior Court of Justice dated October 11, 2002.

BORINS J.A.:

1This is an appeal by the United States of America from the judgment of Hawkins J. dismissing an application to extradite the respondent. It is the appellant’s position that the extradition judge erred in his interpretation and application of s. 29(1)(a) of the Extradition Act, S.C. 1999, c. 18. The respondent concedes this position. However, in reliance on United States of America v. Drysdale (2000), 2000 22651 (ON SC), 71 C.R.R. (2d) 133 (Ont. Sup. Ct.), the respondent submits that the extradition judge “reached the correct result despite [his] error” in his interpretation of s. 29(1)(a). For the reasons that follow, I would reject the respondent’s submission and allow the appeal.

2Although the respondent has conceded the appellant’s ground of appeal, it is helpful to consider it as the reasons the extradition judge erred apply to my analysis of the respondent’s position. To provide the appropriate context for my analysis, I will set out the relevant provisions of the Extradition Act, a summary of the facts based on the findings of the extradition judge and the reasons of the extradition judge.

The Extradition Act

3The following provisions of the Act are relevant to this appeal:

3. (1) A person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner for the purpose of prosecuting the person or imposing a sentence on or enforcing a sentence imposed on the person if

(a) subject to a relevant extradition agreement, the offence in respect of which the extradition is requested is punishable by the extradition partner, by imprisoning or otherwise depriving the person of their liberty for a maximum term of two years or more, or by a more severe punishment; and

(b) the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada,

(i) in the case of a request on a specific agreement, by imprisonment for a maximum term of five years or more, or by a more severe punishment, and

(ii) in any other case, by imprisonment for a maximum term of two years or more, or by a more severe punishment, subject to a relevant extradition agreement.

5. A person may be extradited

(a) whether or not the conduct on which the extradition partner bases its request occurred in the territory over which it has jurisdiction; and

(b) whether or not Canada could exercise jurisdiction in similar circumstances.

15.(1) The Minister [of Justice] 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 [of Canada] to seek, on behalf of the extradition partner, an order of a court for the committal of the person under section 29.

(3) The authority to proceed must contain

(a) the name or the description of the person whose extradition is sought;

(b) the name of the extradition partner; and

(c) the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person or the conduct in respect of which the person was convicted, as long as one of the offences would be punishable in accordance with paragraph 3(1)(b).

29.(1) A judge shall order the committal of the person into custody to await surrender if

(a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner;

33.(1) The record of the case must include

(a) in the case of a person sought for the purpose of prosecution, a document summarizing the evidence available to the extradition partner for use in the prosecution;

(3) A record of the case may not be admitted unless

(a) in the case of a person sought for the purpose of prosecution, a judicial or prosecuting authority of the extradition partner certifies that the evidence summarized or contained in the record of the case is available for trial and

(i) is sufficient under the law of the extradition partner to justify prosecution, or

(ii) was gathered according to the law of the extradition partner;

55.(1) On the hearing of an appeal against the discharge of a person or against a stay of proceedings, the court of appeal may

(a) allow the appeal and set aside the order of discharge or stay, if it is of the opinion

(i) that the order of discharge should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) that the order of discharge or the stay of proceedings should be set aside on the ground of a wrong decision on a question of law, or

(iii) that, on any ground, there was a miscarriage of justice; or

(b) dismiss the appeal.

(2) The court of appeal may, if it sets aside a stay of proceedings, order a new extradition hearing. The court of appeal may, if it sets aside an order of discharge, order a new extradition hearing or order the committal of the person.

The Facts

4By way of an authority to proceed issued on April 5, 2000, pursuant to s. 15 of the Act, the Minister of Justice authorized the Attorney General of Canada, on behalf of the United States of America (the “extradition partner”), to seek an order of committal of the respondent, who was being sought for prosecution by the United States. The Canadian offences that correspond to the conduct alleged against the respondent, as set out in the authority to proceed, are:

Conspiracy to traffic in cocaine (benzoylmethylecgonine) contrary to section 5(1) of the Controlled Drugs and Substances Act and section 465(1)(c) of the Criminal Code of Canada; and

Conspiracy to possess cocaine (benzoylmethylecgonine) for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act and section 465(1)(c) of the Criminal Code of Canada.

5The United States seeks the respondent’s extradition to stand trial in the United States District Court on charges relating to his alleged membership in a conspiracy whereby large quantities of cocaine were purchased in Florida and then transported to Buffalo, New York and thereafter imported into Canada for distribution there.

6It is alleged that Nestor Fonseca was the leader of the conspiracy. In furtherance of the objects of the conspiracy, Fonseca utilized several co-conspirators who traveled to the United States from Canada with money to purchase the cocaine in Florida and then to smuggle the cocaine into Canada. After the cocaine entered Canada, Fonseca took control of it and sold it to individuals in Canada, including the respondent. Between March 27, 1998 and June 15, 1998, with the assistance of his co-conspirators Fonseca imported approximately 50 kilograms of cocaine into Canada in five different shipments.

7After the cocaine was in Canada, Fonseca met with the respondent in Toronto on several occasions between April 20, 1998 and June 24, 1998 and sold him a total of approximately 11 kilograms of cocaine. The fate of the rest of the cocaine that Fonseca imported into Canada is unknown. The respondent’s role was limited to that of purchaser of part of the imported cocaine. All of the respondent’s conduct relevant to Fonseca’s scheme occurred in Canada. The United States does not allege that he participated in the purchase of the cocaine in Florida, its transport from there to the United States/Canadian border, or its importation into Canada.

The Decision of the Extradition Judge

8The extradition judge reviewed in considerable detail the evidence of the conduct relied on by the United States in support of its request for the respondent’s extradition. Thereafter, he observed that “reminders by our appellate courts that extradition proceedings are meant to be straightforward, uncomplicated and free from technicalities seem to have run aground of s. 29(1) of the present Act to s. 18(1)(b) of the former Act” (Extradition Act, R.S.C. 1985, c. E-23) because these “sections appear to have nothing to do with situations where the crime of which the person sought is alleged to be guilty was committed in Canada”.

9The extradition judge then referred to the statement of LaForest J., speaking for the majority of the Supreme Court of Canada in U.S.A. v. Lépine, 1994 116 (SCC), [1994], 1 S.C.R. 286 at 296, that “there is nothing in the [former] Act that requires that the judge consider where the acts charged took place”. However, it appears that he considered that Lépine had been overruled on this point by the following passage defining the role of the extradition judge in U.S.A. v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462 at 513-514:

It [the role] ensures that an individual will not be surrendered for a trial in a foreign jurisdiction unless, as previously mentioned, the requesting state presents evidence that demonstrates on a prima facie basis that the individual has committed acts in the foreign jurisdiction that would constitute criminal conduct in Canada.

This led the extradition judge to conclude:

I confess that I am unable to understand how I can be required to ensure that the requesting state presents a prima facie case that acts were committed in its jurisdiction without considering “where the acts charged took place”.

10After stating that all of the cocaine dealings between Fonseca and the respondent took place in the Toronto area, the extradition judge concluded:

I am satisfied that there is a prima facie case made out that [the respondent] conspired with [Fonseca] to traffic in cocaine and that they conspired to possess cocaine for the purpose of trafficking.

However, there is not one shred of evidence that such activity took place in the jurisdiction of the United States of America (the requesting state).

Following Dynar, I dismiss the application of the United States of America and order that John Kavartzis be discharged.

Analysis

(i) The respondent’s discharge

11The respondent concedes that the extradition judge erred in discharging him on the basis that there was no evidence that the conduct alleged against him occurred within the jurisdiction of the United States. Although the extradition judge was satisfied that there was a prima facie case that the respondent committed the two offences set out in the authority to proceed, he was nevertheless of the view that he could not commit the respondent unless there was evidence that the offences occurred in the United States. In arriving at this conclusion, he misunderstood Dynar and misinterpreted s. 29(1)(a) of the Act.

12The extradition process in Canada was reviewed by Arbour J. in United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532 at paras. 27-37 in the context of the former Act. He description applies equally to the process under the present Act. She pointed out that extradition is primarily a function of the executive branch of government and a product of international agreements between states, in which the court plays an important but limited role. The role is to determine whether there is sufficient evidence to order the committal for surrender of the person whose extradition is sought. Where the court decides that the person sought should be committed, it is for the Minister of Justice to determine whether that person is to be surrendered to the requesting state, known under the present Act as the extradition partner.

13Under the present Act, the extradition process is commenced by the Minister of Justice by issuing an authority to proceed under s. 15 of the Act, which forms the foundational document for an extradition hearing under s. 24. Where, as in this case, the person is sought for prosecution, s. 29(1)(a) requires that the extradition judge commit the person sought where “there is evidence... of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed”.

14Applying this analysis to the circumstances of this appeal, the two offences named in the authority to proceed are conspiracy to traffic in cocaine and conspiracy to possess cocaine for the purpose of trafficking. As the extradition judge found, the evidence of the conduct on which the United States based its request for the respondent’s extradition disclosed an international conspiracy in the United States and Canada in which the respondent was implicated through his cocaine transactions in Canada. Once the trial judge made this finding, by the mandatory language of s. 29(1)(a) he was required to commit the respondent into custody to await surrender to the United States in the exercise of the discretion of the Minister of Justice.

15Sections 15 and 29 are central to the judicial phase of the extradition process. Their effect was explained by Rosenberg J.A. on behalf of this court in U.S.A. v. Yang (2001), 2001 20937 (ON CA), 56 O.R. (3d) 52 (Ont. C.A.) at para. 5:

The combined effect of ss. 15 and 29 is to implement the double criminality requirement. The authority to proceed sets out the Canadian offence that is equivalent to the offence allegedly committed in the extradition partner state. The extradition judge is therefore not concerned with foreign law. He or she merely determines whether there is evidence of conduct that would amount to the Canadian offence described in the authority to proceed. The evidence must be sufficient as would justify an accused’s committal for trial if the offence [for which his extradition is sought] were alleged to have been committed in Canada [emphasis added].

16As Rosenberg J.A. stated in para. 47, the role of the extradition judge is defined by s. 29(1). Primarily, that role is “to ensure the identity of the person sought and to protect that person from being surrendered for conduct that [Canadian law] would not recognize as criminal”. Rosenberg J.A. continued:

Thus, the judicial hearing acts as a modest screening device. It is structured around the fundamental concept that the actual trial takes place in the requesting state. Accordingly, the hearing is “intended to be an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canada’s international obligations”: Dynar at p. 514.

A helpful explanation of the extradition process under the new Act, including the roles played in the process by the Minister of Justice and the extradition judge, is to be found in the reasons for judgment of Dambrot J. in Drysdale, supra, at pp. 146‑147, 151‑152 and 157.

17Section 29(1)(a), therefore, does not authorize the extradition judge to consider foreign law or whether the extradition partner has jurisdiction over the conduct for which extradition is sought. That the extradition judge is not to be concerned about foreign law is reinforced by s. 33(3)(a) of the Act which provides that the record of the case for extradition, which under s. 33(1)(a) must include a document summarizing the evidence available to the extradition partner for use in the prosecution, may not be admitted unless it is sufficient under the law of the extradition partner to justify prosecution. In this appeal, the record of the case was certified by a trial attorney with the United States Department of Justice in the following terms:

In relation to that request [for extradition of the respondent] I... certify that the evidence summarized or contained in the attached documents is available for trial and is sufficient under the law of the United States to justify prosecution.

18Thus, in discharging the respondent because there was no evidence that the United States had jurisdiction over the “activity” that implicated the respondent, the extradition judge misinterpreted s. 29(1)(a) of the Act. He appears to have interpreted s. 29(1)(a) as requiring the United States to establish that it has prosecutorial jurisdiction over the cocaine transactions in which the respondent engaged in Toronto. As I have indicated, the extradition judge’s role is limited to determining whether there is evidence of conduct that would amount to the Canadian offence described in the authority to proceed. In this case, that conduct consists of evidence of Fonseca’s international cocaine trafficking conspiracy. The United States is seeking the respondent’s extradition so that he can be tried as a member of the conspiracy on the basis of his acts in furtherance of the conspiracy that occurred in Toronto, and not for his purchases of cocaine from Fonesca in Toronto as the extradition judge appeared to think. In addition, s. 5 of the Act expressly provides that a requesting state need not demonstrate its jurisdiction over the conduct for which extradition is requested.

19As I have stated, although the extradition judge acknowledged that the Supreme Court of Canada in Lépine held that the former Act did not require the extradition judge to consider where the acts charged took place, or the jurisdiction of the requesting state, he was of the view that Lépine was somehow overridden in this regard by the Supreme Court’s decision in Dynar. It would appear that the decision of this court in United States of America v. Commisso (2000), 47 O.R. (3) 257 (Ont. C.A.) at paras. 40-41, that held that Lépine was not overridden by Dynar, was not brought to the attention of the extradition judge. The views expressed in Lépine are now reinforced by s. 5 of the Act.

20By way of summary, s. 15 informs s. 29(1)(a) and requires the extradition judge to determine only whether the conduct disclosed by the extradition partner’s evidence on which it has based its request for extradition amounts to the Canadian offence or offences specified in the authority to proceed. Before issuing an authority to proceed the Minister of Justice must identify the Canadian offence constituted by the alleged conduct. Under s. 29(1)(a), the extradition judge need only assess the evidence against the offence described in the authority to proceed. The status of the person sought is not an issue for the extradition judge. This is an additional matter for the decision of the Minister before he or she may issue an authority to proceed as s. 15 requires that the Minister be satisfied that the extradition request meets the requirements of s. 3. Section 3 includes the determination that the request for extradition is “for the purpose of prosecuting... the person” requested for extradition.

21Thus, the extradition judge erred in discharging the respondent.

(ii) Did the extradition judge, notwithstanding that he erred in interpreting s. 29(1)(a) of the Act, reach the correct result?

22The respondent takes the position that even though the extradition judge ordered his discharge on erroneous grounds, the judge nevertheless reached the correct result for the following reasons: (1) the authority to proceed was lacking in particulars of the two conspiracies that it set out; and (2) the “mirror image” requirement of s. 29(1)(a) cannot be applied where the conduct relied on for the extradition of the person sought occurred entirely in Canada. In support of this position, the respondent relies on certain observations of Dambrot J. in Drysdale, supra. The respondent did not advance this argument before the extradition judge. For the reasons that follow, I would not give effect to this argument.

23In Drysdale, an extradition hearing was held with respect to four individuals whose extradition was sought under the present Act by the United States on narcotics charges. The Minister of Justice issued an authority to proceed with regard to each individual. In total, the authorities to proceed referenced twenty-one Canadian offences of which eleven were drug related conspiracies. At the conclusion of the hearing, Dambrot J. discharged Drysdale and two other individuals on the ground that the evidence of their conduct did not meet the test in s. 29(1)(a). However, he committed the fourth individual, Manningham, whose appeal from his committal was heard by this court in December 17, 2003 and, at present, is under consideration.

24As authority for the two grounds that the respondent advances in support of his contention that the extradition judge reached the correct result, counsel for the respondent relies on two lengthy passages from Dambrot J.’s reasons for judgment. In the first passage, at pp. 158‑159, Dambrot J. was concerned with the Minister’s failure to provide particulars of the numerous conspiracies contained in the authorities to proceed. However, his concern was alleviated by the specification by the requesting state of the offences that he was required to consider. In the second passage, at pp. 159‑161, he discussed his difficulty in undertaking a s. 29(1)(a) analysis where the evidence of the “acts” or conduct relied on by the extradition partner for the extradition of the person sought took place entirely in Canada. He was troubled by the fact that Drysdale and other Canadian “members” of the alleged U.S. drug conspiracy had been convicted of Canadian offences on the basis of their Canadian conduct, which also formed part of the conduct relied on by the United States for their extradition.

25As the appellant submits, the discussion of Dambrot J. in Drysdale relied on by the respondent played no part in his decision and constitutes obiter dicta. In this case, the authority to proceed complies with s. 15(3)(c) of the Act, which does not require the Minister of Justice to provide particulars of the offences that under Canadian law correspond to the alleged conduct of the person sought. The evidence of the international cocaine conspiracy relied on by the United States for its request to extradite the respondent implicated him as a member of the conspiracy by virtue of his conduct in furtherance of the conspiracy. Moreover, the extradition judge found that this evidence was sufficient to support the two conspiracies set out in the authority to proceed. As I have stated, under s. 29(1)(a) of the Act this constitutes the limited role of the judge in an extradition hearing. As for the second ground relied on by the respondent, the appellant further submits, as I have explained, that it is not within the extradition judge’s role to be concerned with the place where the alleged conduct of the person sought occurred, or the laws of that place. The status of the person sought is an issue for the Minister of Justice and not for the extradition judge.

26Therefore, I am unable to agree with the respondent that the extradition judge reached the correct result notwithstanding that he erred in interpreting s. 29(1)(a) of the Act.

Result

27For the foregoing reasons, the extradition judge erred in his interpretation of s. 29(1)(a) of the Act. The respondent’s argument does not convince me that the extradition judge nevertheless came to the right result. Therefore, I would allow the appeal and set aside the respondent’s discharge. As a prima facie case was made out against the respondent on the offences described in the authority to proceed, this is an appropriate case in which to order the committal of the respondent under s. 55(2) of the Act.

28In the result, I would allow the appeal, set aside the order of the extradition judge discharging the respondent and substitute an order for his committal. Should the appellant require the assistance of the court in carrying out this order, it may bring the appropriate application.