COURT OF APPEAL FOR ONTARIO

CITATION: United States of America v. Nguyen, 2012 ONCA 58

DATE: 20120130

DOCKET: M40855 (C53423 and C54538)

O’Connor A.C.J.O., MacPherson J.A. and O’Connor J. (ad hoc)

IN THE MATTER OF an appeal by the Applicant of his committal for extradition;

AND IN THE MATTER OF an application for judicial review of the Minister’s decision on surrender;

AND IN THE MATTER OF an application pursuant to section 683(1) of the Criminal Code;

BETWEEN

The Attorney General of Canada on behalf of the United States of America

Respondent

and

Dung Ngoc Nguyen

Appellant/Applicant

Kim Schofield and Zachary Kerbel, for the applicant

Richard Kramer, for the respondent

Heard and released orally: January 26, 2012

ENDORSEMENT

[1] The applicant Dung Ngoc Nguyen brings this motion for the production of documents, to cross-examine the certifying U.S. attorney, and to examine the applicant’s counsel at first instance. All of this relief is sought to explore paragraph 10 of the Record of the Case which, the applicant asserts, is untruthful. The key sentence in this paragraph is: “Canadian law enforcement officers are expected to testify that DUNG NGOC NGUYEN has a history of trafficking drugs in Canada”.

[2] The applicant states that this sentence is false because, although she was charged with drug trafficking offences in 2005, the charges were withdrawn after the trial judge made a Charter ruling excluding evidence. The applicant submits that inclusion of the impugned statement in the ROC constitutes an abuse of process. The relief sought in the motion is designed to obtain information about the impugned statement so that the applicant can develop an abuse of process argument for her appeal of the committal order of the Thorburn J. and her judicial review of the Minister’s surrender decision.

[3] We do not accept this submission. There is no air of reality to the applicant’s assertion that the requesting state deliberately attempted to mislead Canadian courts. The applicant concedes that there was no attempt to hide the withdrawal of the earlier Canadian charges; in fact, this was disclosed during the initial application for her extradition arrest warrant.

[4] In addition, neither the applicant’s previous counsel (at the committal stage) nor her current counsel (at the surrender stage) sought disclosure or production relating to this issue. The current motion is a very late-developing contention in the extradition process. Indeed, the information in paragraph 10 is completely unconnected to the facts which gave rise to the charges that are the subject matter of this extradition request.

[5] Finally, the committal judge did not rely on the information in the impugned paragraph in making her committal decision. As for the Minister, he carefully addressed the issue on the basis of the record before him and stated “you have provided no evidence to suggest that the United States was attempting to mislead by including this information in its materials”. The record supports this observation.

[6] As an alternative argument, the applicant seeks an order that the applicant’s prior counsel attend for examination in relation to an allegation of ineffective assistance of counsel. On the basis of this record, including previous counsel’s oral submissions and factum at the committal hearing and his letter to Ms. Schofield dated January 16, 2012, we see no basis for making such an order.

[7] The motion is dismissed.

“Dennis O’Connor A.C.J.O.”

“J.C. MacPherson J.A.”

“O’Connor J. (ad hoc)”