COURT OF APPEAL FOR ONTARIO

DATE: 20000601

DOCKET: C31696

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.

[12] Accordingly, the application is dismissed.

Signed: “G.D. Finlayson J.A.”
“Doherty J.A.”
“Dennis O’Connor J.A.”