United States of America v. Adetiloye, 2010 ONCA 865

CITATION: United States of America v. Adetiloye, 2010 ONCA 865

DATE: 2010-12-16

DOCKET: C52820

COURT OF APPEAL FOR ONTARIO

BEFORE: Laskin, Armstrong and LaForme JJ.A.

IN THE MATTER OF the Extradition Act, S.C. 1999, c.18;

AND IN THE MATTER OF an Application by the United States of America, the Requesting State, for the extradition of Adekunle Olufemi Adetiloye;

AND IN THE MATTER OF an Application for Judicial Review of the decision of the Minister of Justice to surrender the Applicant to the United States;

BETWEEN

The United States of America and The Minister of Justice

Respondent

and

Adekunle Olufemi Adetiloye

Applicant

COUNSEL:

Robin Parker, for the applicant

Moiz Rahman, for the respondent

HEARD AND RELEASED ORALLY: December 1, 2010

On appeal from the committal order of Justice Thomas R. Lederer of the Superior Court of Justice, dated September 25, 2009 and on an application for judicial review of the decision of the Honourable Robert Nicholson, Minister of Justice and Attorney General of Canada, concerning an application brought pursuant to s. 43(2) of the Extradition Act.

ENDORSEMENT

[1] Because of an administrative slip, the applicant was surrendered to the United States before his judicial review application was heard. The applicant acknowledges that his premature removal to the United States was unintentional and not deliberate.

[2] The applicant, nonetheless, argues that before we consider the merits of his judicial review application, we should order the Minister either to arrange for the applicant’s return to Canada or to seek assurances from the United States authorities that they would respect the decision of this court.

[3] We do not accept the applicant’s argument. The applicant’s premature removal is regrettable. But, in our view, it has not prejudiced the fair hearing of his judicial review application. He is represented by competent counsel and thus, for the purpose of his judicial review application, is in the same position as if he were in Canada. Therefore, we think that we should consider the merits of the judicial review application first. Only if we decide that the application has merit does the question of remedy arise.

[4] On the merits, the applicant contends that it would be unfair to allow his guilty plea in Canada to be used against him in the United States proceedings. Accordingly, he submits that he should not be surrendered without assurances that his guilty plea will not be used in evidence against him.

[5] We do not agree with the applicant’s contention. His guilty plea was not enticed or involuntary. It was negotiated with the assistance of his counsel. There is no evidence that the applicant was misled either by Canadian or United States authorities in those negotiations. The applicant did not move to strike his plea or set it aside. His plea must therefore be taken to be voluntary.

[6] Moreover we have no basis to direct the American authorities on what evidence they will use in prosecuting the applicant. The use, if any, to be made of the applicant’s guilty plea in the United States is a matter for the American prosecutors.

[7] Therefore, the request for the orders sought in paragraph 53 of the applicant’s factum is dismissed.

"John Laskin J.A."

"Robert P. Armstrong J.A."

"H.S. LaForme J.A."