United States of America v. Commisso et al. [Indexed as: United States of America v. Commisso]

47 O.R. (3d) 257

[2000] O.J. No. 468

No. C28101

Court of Appeal for Ontario

Labrosse, Laskin and O'Connor JJ.A.

February 22, 2000

*Application for leave to appeal to the Supreme Court of

Canada was dismissed (without reasons) August 24, 2000

(Gonthier, Binnie and Arbour JJ.). S.C.C. File No. 27787.

S.C.C. Bulletin, 2000, p. 1406.

Charter of Rights and Freedoms -- Fundamental justice -- Delay -- Delay of 25 months between filing of appeal from discharge of fugitives at extradition hearing and hearing of appeal not violating fugitives' rights under s. 7 of Charter -- Fugitives doing nothing to expedite hearing of appeal -- Fugitives not alleging any real prejudice flowing from delay -- Application for order dismissing appeal or staying extradition proceedings dismissed -- Canadian Charter of Rights and Freedoms, s. 7.

Extradition -- Test for committal -- Fugitives charged in United States with conspiracy to distribute and possess with intent to distribute heroin and with conspiracy to import heroin into United States -- Extradition judge discharging fugitives on basis that evidence of conspiracy showed committed offence totally within Canada -- Situs of conduct irrelevant if conduct would, if it occurred in Canada, constitute prima facie case of any offence listed in Extradition Act or described in relevant extradition treaty -- Appeal by requesting state allowed and accused ordered extradited -- Extradition Act, R.S.C. 1985, c. E-23, s. 18(1).

Criminal law -- Extradition -- Test for committal -- Double criminality rule -- Fugitives charged in United States with conspiracy to import heroin and conspiracy to distribute and posses heroin with intent to distribute -- Extradition judge discharging accused on basis that evidence showing conspiracy committed entirely in Canada -- Extradition judge applying wrong test for committal -- Irrelevant whether it has been proven foreign court has jurisdiction to try offence -- Extradition judge to assume impugned conduct took place in Canada and then determine if prima facie case established that fugitive committed any Canadian extradition offence -- Accused properly ordered extradited when correct test for committal applied -- Accused seeking stay of extradition proceedings due to 25-month delay by requesting state in perfecting appeal -- Delay resulting in no prejudice to accused and no infringement of fair trial interests -- Accused ordered extradited.

The respondents were charged in the United States with one count of conspiracy to distribute and possess with intent to distribute a quantity of heroin and with one count of conspiracy to import heroin into the United States. The appellant, the United States of America, sought to extradite the respondents from Canada to stand trial on those charges. The extradition judge found that there was strong evidence that one of the respondents trafficked in heroin in the United States and that all of the respondents conspired to traffic in heroin in Canada. However, he found that there was insufficient evidence to establish either a prima facie case of a conspiracy in the United States, or that one of the objects of the conspiracy was to import heroin into the United States. The only evidence of conspiracy, he found, showed the commission of an offence totally within Canada that had no reasonable connection to the United States. He ordered that the respondents be discharged.

The appellant appealed. The respondents applied for an order dismissing the appeal or staying the extradition proceedings on the grounds that the delay of 25 months from the time of filing of the notice of appeal until the argument of the appeal violated their rights under s. 7 of the Canadian Charter of Rights and Freedoms.

Held, the respondents' application should be dismissed; the appeal should be allowed.

The extradition judge misinterpreted the test for committal under s. 18(1)(b). Under that section, the extradition judge is required to commit the fugitive for surrender if satisfied that the conduct that underlies the foreign charge, wherever it took place, would, if it occurred in Canada, constitute a prima facie case of any of the offences listed in the Extradition Act or described in the relevant extradition treaty. The extradition judge made three errors in applying s. 18(1)(b). He made the assessment under s. 18(1)(b) on the assumption that what occurred in the United States occurred in Canada and vice versa, rather than assuming that all of the impugned conduct occurred in Canada. He narrowed his assessment under Canadian law to only the "approximate equivalent Canadian offences" to those charged in the United States rather than considering any Canadian extradition offence. That error runs contrary to the leading authority which requires the court to consider all of the conduct without regard to the jurisdiction in which it took place. Alternatively, he based his assessment on the failure of the appellant to establish the American offences rather than determining if the conduct established a prima facie case of any Canadian extradition offence.

All of the evidence introduced by the appellant at the extradition hearing showed conduct that underlay the American charges and might, therefore, be used in making the assessment under s. 18(1)(b) of the Act. The evidence, if accepted, established that the respondents committed the offence of conspiracy to traffic in heroin and also the substantive offence of trafficking in heroin. The evidence met the requirements of s. 18(1)(b) and would justify a court issuing a warrant of committal for each of the respondents.

The respondents took no steps under the Criminal Appeal Rules, SI/93-169 to advance or expedite the hearing of the appeal. More importantly, they did not allege any real prejudice flowing from the delay, which would affect the fairness of the proceedings against them. Their rights under s. 7 of the Charter were not violated.

APPEAL by the requesting state from a discharge of fugitives at an extradition hearing; APPLICATION by the fugitives for an order dismissing the appeal or staying extradition proceedings.

United States of America v. Lépine, 1994 116 (SCC), [1994] 1 S.C.R. 286, 111 D.L.R. (4th) 31, 163 N.R. 1, 87 C.C.C. (3d) 385; R. v. Potvin, 1993 113 (SCC), [1993] 2 S.C.R. 880, 105 D.L.R. (4th) 214, 155 N.R. 241, 16 C.R.R. (2d) 260, 83 C.C.C. (3d) 97, 23 C.R. (4th) 10, apld United States of America v. Shulman (1998), 1998 17664 (ON CA), 128 C.C.C. (3d) 475 (Ont. C.A.) [leave to appeal to S.C.C. allowed (1999), 236 N.R. 199n]; United States of America v. Tavormina (1996), 1996 5995 (QC CA), 112 C.C.C. (3d) 563 (Que. C.A.), distd Other cases referred to Canada v. Schmidt, 1987 48 (SCC), [1987] 1 S.C.R. 500, 61 O.R. (2d) 530, 20 O.A.C. 161, 39 D.L.R. (4th) 18, 76 N.R. 12, 28 C.R.R. 280, 33 C.C.C. (3d) 193, 58 C.R. (3d) 1 (sub nom. Schmidt v. R.); Stewart v. Canada (Minister of Justice) (1998), 1998 6226 (BC CA), 59 C.R.R. (2d) 33, 131 C.C.C. (3d) 423 (B.C.C.A.) (sub nom. United States of America v. Stewart); United States of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462, 147 D.L.R. (4th) 399, 213 N.R. 321, 44 C.R.R. (2d) 189, 115 C.C.C. (3d) 481, 8 C.R. (5th) 79; United States of America v. Manno (1996), 1996 5998 (QC CA), 112 C.C.C. (3d) 544 (Que. C.A.) [leave to appeal to S.C.C. refused (1997), 221 N.R. 311n]; United States of America v. McVey, 1992 48 (SCC), [1992] 3 S.C.R. 475, 73 B.C.L.R. (2d) 145, 97 D.L.R. (4th) 193, 144 N.R. 81, [1993] 1 W.W.R. 289, 77 C.C.C. (3d) 1 (sub nom. McVey (Re)); United States of America v. Smith (1984), 1984 3510 (ON SC), 15 C.C.C. (3d) 16 (Ont. Co. Ct.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 6(1), 7 Criminal Code, R.S.C. 1985, c. C-46, ss. 465(3), (4), 482 Extradition Act, R.S.C. 1985, c. E-23, ss. 2 "extradition crime", 3, 13, 16, 18(1), 19, 19.5(2), 19.8(a)(ii), 84 -- now S.C. 1999, c. 18 Extradition Act, S.C. 1999, c. 18, ss. 84, 129 Treaties and conventions referred to Canada-United States Extradition Treaty, Can. T.S. 1976 No. 3, Articles 2, 8, 10 Authorities referred to Stuart, Canadian Criminal Law: A Treatise, 3rd ed. (Toronto: Carswell, 1995), pp. 630-31

Thomas Beveridge, for appellant. Brian H. Greenspan and Peter W.S. Copeland, for respondent, Vincenzo Commisso. Leo A. Kinahan, for respondent, Rocco Commisso. J. Randall Barrs, for respondent, Cosimo D'Agostino. John Morris, for respondent, Matthew Szabo.

The judgment of the court was delivered by

[1] O'CONNOR J.A.: -- The respondents are charged in the United States with two counts of conspiracy. The first alleges that they conspired to distribute and possess with intent to distribute a quantity of heroin. The second alleges that they conspired to import heroin into the United States.

[2] The appellant, the United States of America, seeks to extradite the respondents from Canada to stand trial on these charges. After conducting a hearing under the Extradition Act, R.S.C. 1985, c. E-23, Matlow J. found that there was strong evidence that the respondent, Vincenzo Commisso, trafficked in heroin in the United States and that all of the respondents conspired to traffic heroin in Canada. However, he found that there was insufficient evidence to establish either a prima facie case of a conspiracy in the United States, or that one of the objects of the conspiracy was to import heroin into the United States. The only evidence of conspiracy, he found, showed the commission of an offence totally within Canada that had no reasonable connection to the United States. He therefore ordered that the respondents be discharged.

[3] This is an appeal by the United States from that order. The appellant argues that the extradition judge misinterpreted the test for committal under s. 18(1)(b) of the Act. Under that section an extradition judge is required to assume that the impugned conduct took place in Canada and to determine if the evidence establishes a prima facie case that the fugitive committed an extradition crime according to the laws of Canada. In making this assessment the court is not to concern itself with whether the evidence establishes the foreign charge or with whether the foreign court has jurisdiction to try the charge should extradition be ordered.

[4] The appellant argues that the extradition judge made three errors in applying s. 18(1)(b):

(a) He made the assessment under s. 18(1)(b) on the assumption that what occurred in the United States occurred in Canada and vice versa, rather than assuming that all of the impugned conduct occurred in Canada.

(b) He narrowed his assessment under Canadian law to only the "approximate equivalent Canadian offences" to those charged in the United States rather than considering any Canadian extradition offence.

(c) Alternatively, he based his assessment on the failure of the appellant to establish the American offences rather than determining if the conduct established a prima facie case of any Canadian extradition offence.

[5] I am satisfied that the extradition judge made each of these errors in interpreting and applying the test under s. 18(1)(b). I am also satisfied that if this court applies the proper test to the evidence, a warrant of committal should issue for each of the respondents.

[6] In addition to opposing the appeal on the merits, the respondents apply for an order either dismissing the appeal or staying the extradition proceedings because of the delay of 25 months from the time of filing of the notice of appeal until the argument of the appeal. This delay, they contend, violated their rights under s. 7 of the Canadian Charter of Rights and Freedoms. The respondents did not lead evidence alleging that the delay would affect the fairness of the proceedings against them. In the absence of evidence of prejudice of this kind, I would deny this application.

FACTS

[7] The evidence in support of the request for extradition was introduced by way of affidavits. There were no cross- examinations on those affidavits, nor was there any evidence called by the respondents.

[8] On March 8, 1993, Vincenzo Riverso, a co-operating witness working with the United States Federal Bureau of Investigation, met with the respondent Vincenzo Commisso, at the Café Bruno in Brooklyn, New York. Vincenzo Commisso told Riverso that he had brown heroin available for sale at a price of $100,000 per kilogram. On the following day, he gave Riverso a tin foil wrapped sample that tested positive for heroin. Riverso told Vincenzo Commisso that he would buy a half kilogram.

[9] Vincenzo Commisso and Riverso had further meetings in Brooklyn later in March during which Vincenzo Commisso introduced Riverso to a man called Tony, who was to be present for the proposed heroin deal. On March 30, Riverso met Tony and purchased a half kilogram of heroin for $50,000. Tony told Riverso that he had been working for Vincenzo Commisso for 17 years and if there was any problem, Riverso should talk to Vincenzo Commisso.

[10] On May 6, 1993, Vincenzo Commisso called Riverso at his home in Brooklyn and asked him to come to Canada to meet with him. He told Riverso he would be able to provide heroin to him in Canada at a lower price than in the United States. On May 13, Vincenzo Commisso called again and made the same request.

[11] On August 17, 1993, the two met at the Café Bruno in Brooklyn. Vincenzo Commisso told Riverso that he had heroin in Canada but that he did not want to transport it to New York. He quoted prices and told Riverso how to carry the heroin in his possession on an airplane without being detected. In late September, Vincenzo Commisso again called Riverso at his home in Brooklyn and once again asked him to come to Canada. He repeated that Riverso could purchase heroin at a lesser cost in Canada than in New York.

[12] In October, Riverso flew to Toronto accompanied by undercover FBI agents. On October 13, Vincenzo Commisso met Riverso and drove him to a house at 21 Nada Crescent in Woodbridge, Ontario. Vincenzo Commisso went into the house, alone. When he returned to the car he told Riverso that he had just spoken with the person from whom he was getting the heroin and that he would return and get a sample later.

[13] The two men went to a bar where they met Vincenzo Commisso's cousin, the respondent Rocco Commisso. The three of them drove back to 21 Nada Crescent. Vincenzo and Rocco Commisso went into the house. When they returned, Vincenzo Commisso handed Riverso a small aluminum sample that subsequently tested positive for heroin. Vincenzo Commisso said that the supplier had only 12 ounces, which Riverso could purchase for $70,000. Riverso was prepared to proceed but this deal eventually fell through. Vincenzo and Rocco Commisso told Riverso that they were unable to get the heroin because the police were searching the house of the person from whom they were to obtain it.

[14] An FBI agent who accompanied Riverso on this trip subsequently learned that the respondent Cosimo D'Agostino resided at 21 Nada Crescent and that local police had conducted a search of his house on October 13.

[15] On November 10, 1993, Rocco Commisso called Riverso at his home in Brooklyn. Riverso said he would come to Canada again, but that the heroin must be ready. Riverso travelled to Toronto and on November 22 he met Rocco Commisso at Bloomingdale Dry Cleaners in Toronto and gave him $80,000 in U.S. funds as up front "buy money". Rocco Commisso left with the money. He returned later and gave the money, less $2,380, back to Riverso. He explained that the supplier was concerned that the money was counterfeit and had taken the $2,380 to check it. Shortly afterwards, Riverso left and returned to Brooklyn without completing the heroin transaction.

[16] Two days later, Rocco Commisso called Riverso and told him that if he had stayed another few minutes, he would have shown up with "that guy" and the deal could have been completed. Rocco Commisso offered to pay Riverso's expenses to return to Canada to complete the deal.

[17] In mid-December, Riverso spoke on the telephone from Brooklyn to Rocco Commisso. Rocco Commisso said he was with "a friend of mine" and put D'Agostino on the phone. D'Agostino said that he felt badly about the last time and that if Riverso had waited around a little longer the deal could have been completed. Riverso discussed his proposed return to Canada to complete the heroin transaction with both Rocco Commisso and D'Agostino.

[18] In early January of 1994, Riverso travelled to Toronto for the third time. On January 6, he had lunch with Rocco Commisso and D'Agostino. Riverso was provided with two samples which field tested positive for heroin. The following day, Riverso met Rocco Commisso and D'Agostino at Bloomingdale Cleaners. D'Agostino asked for the buy money in advance. Riverso refused. D'Agostino left and returned with the respondent Matthew Szabo who aggressively demanded the buy money in advance. Riverso again refused. Eventually, Riverso agreed to show them the buy money. He showed $77,620 in U.S. funds to Rocco Commisso, D'Agostino and Szabo.

[19] D'Agostino and Szabo counted the money. D'Agostino left to get the heroin while the other three waited. While they were waiting, Szabo told Riverso that he could get Riverso all the heroin he needed. D'Agostino returned and gave Riverso a package that contained 435 grams of heroin. D'Agostino and Szabo then left with the money.

[20] Subsequently, Riverso had a number of phone conversations from Brooklyn with Vincenzo Commisso, Rocco Commisso and D'Agostino regarding a further purchase of heroin. However, no further deals were completed.

[21] Indictments were returned by the grand jury in the Southern District of New York on June 12, 1996 charging (and I will paraphrase) that from October 1992 until the date of the indictment, in the Southern District of New York and elsewhere, the respondents conspired with each other and other persons known and unknown to import heroin into the United States and to distribute and possess with the intent to distribute heroin, both contrary to certain sections in Title 21 of the United States Code.

[22] The United States District Court issued warrants for the arrest of the respondents. As the respondents were in Canada, the appellant made requests to Canada for their extradition under the provisions of the extradition treaty between the two countries.

[23] The respondents were arrested in Canada on warrants issued under the Extradition Act. Matlow J., sitting as an extradition judge, conducted an extradition hearing and on June 5, 1997, he ordered that the respondents be discharged.

Issue No. 1 -- The Extradition Judge Erred in Applying the Test under s. 18(1)(b)

(a) The extradition process

[24] When Canada enters into an extradition treaty it assumes reciprocal obligations with the other contracting country to surrender persons found within Canada under the provisions in the treaty. Extradition treaties set out the obligations of the contracting states to one another.

[25] Canada's extradition treaty with the United States recognizes that the domestic procedures of the country from which extradition is requested should be used to implement those obligations. [See Note 1 at end of document.] The internal extradition process in Canada is governed by the Extradition Act. [See Note 2 at end of document] It should be noted that the Act under which Matlow J. conducted the committal hearing (the "old Act") has since been replaced by the Extradition Act, S.C. 1999, c. 18 (the "new Act"). Section 129 of the new Act repeals the old Act, but s. 84 provides that the old Act still applies to extradition cases in which the hearing was begun prior to the new Act coming into force. That provision applies to this case, and therefore any references to the "Extradition Act" ("the Act") below should be taken to be references to the old Act.

[26] The Act establishes a two-step process for determining whether a fugitive should be surrendered to a foreign state. The first step is judicial in nature. Under s. 13 of the Act, the extradition hearing is conducted by an extradition judge and is to be conducted in a manner similar to a preliminary hearing. Section 16 permits evidence to be received by way of deposition taken in a foreign state. After conducting a hearing, the extradition judge determines whether a case has been made out under the test in s. 18(1) of the Act. If not, the fugitive is discharged. If a case for committal is made out, s. 19 of the Act provides that the judge issues a warrant of committal and sends a certificate of the committal, a copy of the evidence taken at the hearing and such report on the case as the judge thinks fit to the Minister of Justice.

[27] The second step of the extradition process involves the executive branch of government. The Minister of Justice makes the final decision whether the fugitive will be surrendered to the requesting state. This executive decision-making phase is the mechanism by which the Canadian government monitors whether a requesting state has gone beyond the terms of the treaty in exercising jurisdiction: United States of America v. Lépine, 1994 116 (SCC), [1994] 1 S.C.R. 286, 87 C.C.C. (3d) 385.

(b) Test for committal

[28] Section 18(1) establishes the test to be applied by the extradition judge in determining whether a fugitive should be committed for surrender. Section 18(1)(a) sets out the test for those fugitives who it is alleged have already been convicted of an offence in the requesting state.

[29] Section 18(1)(b) provides the test for cases involving fugitives, like the respondents, who are subject to outstanding charges in the requesting jurisdiction. The section reads as follows:

18(1) The judge shall issue a warrant for the committal of the fugitive to the nearest convenient prison, there to remain until surrendered to the foreign state, or until discharged according to law,

(b) in the case of a fugitive accused of an extradition crime, if such evidence is produced as would, according to the law of Canada, subject to this Part, justify the committal of the fugitive for trial, if the crime had been committed in Canada.

[30] The test under s. 18(1)(b) embodies the "double criminality" rule. This rule underlies the structure of the extradition process and has its origins in the principle of reciprocity. The rule is designed to protect the fundamental rights of an individual whose extradition is being sought by ensuring that a person is not surrendered to another country for conduct not considered to be a criminal offence in the country from which extradition is sought: Lépine, at pp. 296-97 S.C.R., p. 391 C.C.C.; United States of America v. McVey, 1992 48 (SCC), [1992] 3 S.C.R. 475, 77 C.C.C. (3d) 1.

[31] The proper interpretation of the test set out in s. 18(1)(b) has been the subject of much judicial analysis in recent years. Before turning to the specific issues raised by this appeal, I think it would be helpful to set out a number of the principles that govern the way a court should apply s. 18(1)(b) to the facts of a particular case.

[32] The first is that the assessment to be made under this section is conduct based. The wording of the section requires the court to assume that "the crime has been committed in Canada." This has been interpreted to mean that the court should look to the impugned conduct and make its assessment under Canadian law on the basis of that conduct: McVey, at pp. 536-37 S.C.R., p. 28 C.C.C.; Lépine, at p. 296 S.C.R., p. 391 C.C.C.

[33] Next, it has been held that the court should consider only the conduct that underlies the foreign charge for which extradition is being sought. The extradition judge is concerned with whether that conduct would prima facie constitute an extradition crime under the laws of Canada had it taken place in Canada: McVey, at p. 528 S.C.R., p. 21 C.C.C.; United States of America v. Manno (1996), 1996 5998 (QC CA), 112 C.C.C. (3d) 544 (Que. C.A.) at p. 558. Put another way, the double criminality rule does not permit an extradition judge to base the committal decision on evidence of conduct that "has nothing to do" with the conduct charged in the foreign jurisdiction: United States of America v. Tavormina (1996), 1996 5995 (QC CA), 112 C.C.C. (3d) 563 (Que. C.A.) at p. 569.

[34] I interpret this requirement, that the court should only look to the conduct underlying the foreign charge to mean that the conduct to be considered in the s. 18(1)(b) assessment must have some connection to the foreign charge or must constitute some evidence of that charge.

[35] The extradition judge may look to the foreign indictment, but only for the purpose of determining what conduct is to be included in the assessment under s. 18(1)(b). The foreign indictment enables the extradition judge to identify the conduct with which a fugitive is charged in the requesting jurisdiction. In referring to the foreign indictment, however, the court must not be concerned with whether the conduct establishes the commission of the foreign charge nor with whether the foreign court has jurisdiction to try the charge: Manno, at pp. 558-59 C.C.C.

[36] The third principle is that the extradition judge should consider the impugned conduct without regard to the jurisdiction in which the conduct took place. In Lépine, La Forest J., writing for the majority, pointed out that nothing in the Act requires the judge to consider where the acts charged took place or to consider the jurisdiction of the requesting state. At p. 297 S.C.R., p. 391 C.C.C., he said:

The question to be asked, then, is whether, if the impugned acts or conduct had been committed in Canada, they would constitute a crime here: see McVey, at pp. 536 and 541. It is not whether, if some of the conduct had been committed here and some abroad, it would be a crime here.

[37] In reaching this conclusion, La Forest J. specifically rejected what he termed "a type of 'mirror image' approach under which only the specific acts that took place in the requesting jurisdiction would be considered to have taken place in Canada."

[38] The respondents argue that the conclusion in Lépine was modified or even overruled by the subsequent decision of the Supreme Court in United States of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462, 115 C.C.C. (3d) 481. Justices Cory and Iacobucci, writing for the majority, at pp. 513-14 S.C.R., p. 521 C.C.C., said:

One of the most important functions of the extradition hearing is the protection of the liberty of the individual. It ensures that an individual will not be surrendered for 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.

(Emphasis added)

[39] This statement embodies the type of "mirror image" approach that was rejected by the majority in Lépine. The reference in this passage to "acts in the foreign jurisdiction" appears to have been taken from statements in McVey and Canada v. Schmidt, 1987 48 (SCC), [1987] 1 S.C.R. 500, 33 C.C.C. (3d) 193, both of which were decided before Lépine. It is difficult to reconcile this statement in Dynar with the majority decision in Lépine.

[40] In my view, the passage in Dynar relied upon by the respondents was not meant to overrule Lépine. It is included in a section of the reasons with the heading, "The Nature of the Extradition Hearing." In this section the majority set out a general description of the principles that guide a court when conducting an extradition hearing. The jurisdiction in which the conduct that formed the basis of the charges in Dynar took place was not an issue considered by the court.

[41] The direction given by the majority in Lépine, namely that the court should consider the impugned conduct without regard to the jurisdiction in which it took place, in my view, continues to be the proper approach. Having said this, the requirement that an extradition judge only consider the conduct underlying a foreign charge may, in some cases, cause the court to draw a line, possibly territorial, between conduct that underlies a foreign charge and conduct that does not.

[42] With the conduct viewed in accordance with these principles, the extradition judge is required to determine whether the conduct, if it occurred in Canada, would constitute a prima facie case of an extradition crime according to the laws of Canada.

[43] An "extradition crime" is defined in s. 2 of the Act to mean any crime that if committed in Canada would be one of the crimes listed in the schedule to the Act or in the case of an extradition arrangement (a treaty) any crime described in such arrangement. Article 2 of the Canada-United States Extradition Treaty no longer lists specific extradition offences. It provides that "extradition shall be granted for any offence punishable by the laws of both parties by imprisonment for a term exceeding one year or any greater punishment."

[44] It is not necessary that the Canadian offence established by the conduct be described by the same name or that it have the same legal elements as the offence charged in the requesting state. The protection afforded by the double criminality rule is ensured if the conduct that underlies the foreign charge constitutes any extradition crime under the laws of Canada: see United States of America v. Smith (1984), 1984 3510 (ON SC), 15 C.C.C. (3d) 16 (Ont. Co. Ct.), McVey, Manno, Tavormina and Stewart v. Canada (Minister of Justice) (1998), 1998 6226 (BC CA), 131 C.C.C. (3d) 423, 59 C.R.R. (2d) 33 (B.C.C.A.). In most cases, particularly when extradition is sought by the United States, where the system of criminal law is similar to our own, there will be a similarity between the offence charged and the Canadian offence against which the assessment is made. However, an equivalency between the two is not a requirement.

[45] In summary, drawing together these principles, the test under s. 18(1)(b) may be paraphrased as follows: The extradition judge shall commit a fugitive for surrender if satisfied that the conduct that underlies the foreign charge, wherever it took place, would if it occurred in Canada constitute a prima facie case of any of the offences listed in the Extradition Act or described in the relevant extradition treaty.

(c) Reasons of extradition judge

[46] In his reasons, the extradition judge set out the analytical process he proposed to follow in assessing the evidence in support of the request for extradition.

[47] The extradition judge said that the application of s. 18(1)(b) to the facts of the case required him to apply what he called a "notional fiction" by which he would pretend that what is said to have occurred in the United States occurred in Canada and vice versa.

[48] With the evidence viewed in this manner, the extradition judge said he would determine if there was sufficient evidence such that a justice conducting a preliminary hearing in Canada would be required to commit the persons before him to stand trial. In doing so, he would base his analysis on the "approximate equivalent" Canadian charges to those for which extradition was being sought. He would apply the evidence to the notional Canadian charges of conspiracy to import heroin and conspiracy to traffic heroin and then determine if the evidence would justify ordering the respondents to stand trial in Canada on those notional charges.

[49] The extradition judge accepted that this approach differed from that described in Smith, where Borins J. held that the s. 18 test would be satisfied if "the conduct alleged . . . would have constituted any criminal offence pursuant to Canadian law had it occurred in Canada" (emphasis in original).

[50] The extradition judge then said he would consider and apply s. 465(3) and (4) of the Criminal Code, which deals with the jurisdiction of a Canadian court over offences of conspiracy that have an extra-territorial aspect. As part of the process, the extradition judge said that he was precluded from carrying out a detailed analysis of the substantive law of the United States underlying the American indictment.

[51] Having set out this analytical approach, the extradition judge found that the appellant had not made out a prima facie case of either of the two counts alleged in the indictment based on their approximate Canadian equivalents. He went on to say that there was "strong evidence that Vincenzo Commisso trafficked in heroin in the United States and strong evidence that all of the persons conspired to traffic heroin in Canada but there is not sufficient evidence to support either of the two counts alleged in the indictment" (emphasis added). This reference is clearly to the two American charges.

[52] The extradition judge then briefly reviewed the evidence and concluded that there was no evidence that persons other than Vincenzo Commisso "were involved in anything that occurred in the U.S. sufficient to make out a prima facie case of a conspiracy there [in the United States]" and that he was also unable to conclude that there was "a prima facie case made out that importation into the U.S. was one of the objects of that alleged conspiracy" (emphasis added). Accordingly, he ordered that each of the respondents be discharged.

[53] The extradition judge concluded his reasons by stating in the penultimate paragraph:

No one could possibly argue reasonably that a Canadian extradition judge could properly commit persons for surrender for extradition to the U.S., as in this case, on the basis of evidence showing the commission of an offence totally within Canadian territorial jurisdiction and having no reasonable connection to the U.S. such as might arise upon the application of any U.S. approximate equivalents to s. 465(3) and s. 465(4) of the Criminal Code.

[54] I have difficulty with these reasons. It is not clear to me how the extradition judge applied the test to s. 18(1)(b) in reaching the decision to discharge the respondents. He does not appear to have followed the approach that he said he was going to take.

[55] The appellant argues that the extradition judge erred in applying the notional fiction of pretending that what occurred in the United States occurred in Canada and vice versa and on that basis determining if there was a prima facie case. I agree. This approach runs afoul of the majority decision in Lépine, which requires the court to consider all of the conduct without regard to the jurisdiction in which it took place.

[56] In response, Mr. Greenspan, for the respondent Rocco Commisso, argues that the extradition judge did not actually use this fiction when he came to apply the test under s. 18(1) (b) to the evidence. I agree that the language he used in setting out his conclusions suggests that he did not. However, that language creates other difficulties. After reviewing the evidence, the extradition judge said that he was not satisfied that there was sufficient evidence to establish the American offences and that there was insufficient evidence to establish a conspiracy in the United States.

[57] This language suggests that the extradition judge did not engage in the exercise of assessing the conduct to determine if there was a prima facie case of a Canadian offence, but rather looked to see if the evidence made out a prima facie case of the American charges.

[58] If this is the basis upon which the extradition judge in fact decided the case, then he engaged in an exercise that clearly falls outside of that which is required by s. 18(1)(b). It is well settled that an extradition judge should not be concerned either with the sufficiency of the proof of the foreign charge or with the jurisdiction of the foreign court to try the charge. On the face of these conclusions, the extradition judge appears to have done both.

[59] The appellant also submits that the extradition judge erred when he said that he would apply the evidence to the "approximate Canadian equivalent charges" rather than to any Canadian extradition offence. In doing so, the extradition judge recognized that the approach he was taking differed from that set out in Smith. Smith has been adopted by higher courts on a number of occasions: see for example, McVey, Manno and Stewart. The approach in Smith is the correct one. It was an error to restrict the assessment under s. 18(1)(b) to only the "approximate Canadian equivalent charges" to those set out in the foreign indictment.

[60] The effect of this error, in the context of this case, particularly when combined with the error of assuming what occurred in the United States occurred in Canada and vice versa, would result in a significant departure from the basis upon which the assessment under s. 18(1) is to be made.

[61] That said, it is not clear to me exactly how the extradition judge used "the approximate Canadian equivalent charges" in the analysis that led to his conclusions. Although he initially said he was not satisfied that the appellant had made out a prima facie case based on the Canadian equivalent charges, he went on to reason that there was insufficient evidence to support the two counts alleged in the American indictment and that there was not a prima facie case of a conspiracy in the United States. As I point out above, this approach would constitute a fundamental error in applying s. 18(1)(b).

[62] The respondents argue that the references by the extradition judge to the failure to prove the charges in the United States were inadvertent and this court should find that he either approached the assessment under s. 18(1)(b) in the proper manner or that any errors he made in setting out the legal principles he proposed to use did not affect his conclusion.

[63] I am not able to accept either of these arguments. I am satisfied that the extradition judge's reasons, however interpreted, demonstrate the errors in law relied upon by the appellant. I am also satisfied that whatever approach the extradition judge actually used, led him to reach the wrong conclusion. It is my view that when the test under s. 18(1)(b) is properly applied to the evidence, a warrant of committal should be issued for each of the respondents.

(d) The application of the s. 18(1)(b) test

[64] The first step in applying the test under s. 18(1)(b) is to determine what conduct underlies the American charges. I will first deal with the charge of conspiracy to import heroin into the United States.

[65] A conspiracy is an agreement between two or more persons to achieve an unlawful purpose or to achieve a lawful purpose by unlawful means. In my view, all of the conduct alleged by the appellant underlies this charge. That conduct is some evidence that each of the respondents was a party to a single agreement to sell heroin to Riverso for the purposes of importing the heroin into the United States.

[66] In March 1993, Vincenzo Commisso sold heroin to Riverso in Brooklyn, New York. On different occasions after that, he and two of the other respondents, Rocco Commisso and Cosimo D'Agostino, invited Riverso to come to Canada to buy more heroin. As it turned out, Riverso came here three times but the respondents were only able to sell him heroin on the third trip in January 1994. The fourth respondent, Szabo, was integrally involved in the actual sale.

[67] It would be open to a court to draw an inference that the sale in January 1994 was the culmination of the invitation first issued by Vincenzo Commisso in the spring of 1993. This conduct is some evidence that the four respondents were parties to a single agreement to sell heroin to Riverso.

[68] Moreover, this conduct is connected to the specific conspiracy alleged, that being for the purpose of importing heroin into the United States. One of the alleged co- conspirators did sell heroin in the United States. Three of them encouraged Riverso, whom they believed to be an American drug dealer, to come to Canada to buy more. He was told that the heroin would be cheaper to buy in Canada. On one occasion, an offer was made to pay his plane fare. He was told how to carry heroin on a plane without being detected. It was clear that the respondents believed that Riverso would take the heroin back to the United States for resale there. In my view, this conduct is some evidence of the unlawful purpose alleged in the American charge, to import heroin into the United States.

[69] I am also satisfied that this conduct constitutes some evidence of the second American charge, conspiracy to distribute heroin. The respondents believed that Riverso was an American drug dealer. They agreed to sell an amount of heroin that was clearly intended to be marketed or distributed in the United States.

[70] The question is not whether this conduct establishes a prima facie case that the respondents committed the two American charges, but rather whether the conduct underlies those charges in the sense that the conduct has some connection to or is some evidence of those charges. In my view, it does.

[71] In arguing against this conclusion, the respondents rely on the decision of the Quebec Court of Appeal in Tavormina. In my view, the facts in Tavormina are distinguishable. Tavormina was charged in the United States with two conspiracies. The purpose of the first was to import narcotics into the United States, the purpose of the second was to traffic in narcotics. The evidence disclosed the existence of two separate conspiracies. The first was among a number of third parties and had the object of importing cocaine into the United States. There was no evidence that Tavormina was a party to this conspiracy. The second, in which the evidence showed Tavormina participated, had the object of distributing the cocaine once it arrived in the United States. Tavormina was committed by the extradition judge on the second count but discharged on the first. The United States appealed the discharge. In upholding the result, Proulx J.A. reasoned that the facts that underlay the conspiracy to impor t charge did not support a prima facie case that the fugitive had committed an offence in Canada. He put it this way, at p. 569:

That being said, I do not believe the double criminality rule permits an extradition judge to base his decision on evidence of certain conduct and to order the fugitive committed for surrender to the foreign state when this evidence has nothing to do with the conduct charged in the accusation [the indictment] for which his extradition is sought.

(Emphasis added)

[72] In the same way, the present case is also distinguishable from United States of America v. Shulman (1998), 1998 17664 (ON CA), 128 C.C.C. (3d) 475 (Ont. C.A.), application for leave to appeal granted [1999] S.C.C.A. No. 513, 236 N.R. 199n where this court upheld the extradition judge's order to discharge the fugitive on 51 of 52 counts in an American indictment. In Shulman, like Tavormina, there was no evidence adduced in reference to the charges on which the fugitive had been discharged.

[73] The respondent Szabo argues that he is in a different position than the other three respondents. He contends that because the evidence only shows that he was involved on the day of the second sale of heroin to Riverso in January 1994, that there is no evidence to connect him to charges involving a conspiracy that came into existence before that date. I disagree. Szabo played a very active role in the events at the time of the sale. He aggressively demanded the buy money in advance. He and D'Agostino counted the money. When D'Agostino left to get the heroin, Szabo told Riverso he could get all the heroin Riverso needed. Szabo appeared to be a central part of the selling operation. The fact that he was not involved in earlier efforts to sell heroin to Riverso and the fact that the evidence does not establish any direct connection between Szabo and Vincenzo Commisso does not mean that his conduct could not constitute some evidence that he was a party to the same conspiracy. Professor Stuart in his text, Canadian Criminal Law: A Treatise, 3rd ed. (Toronto: Carswell, 1995) put it nicely when he said at pp. 630-31:

. . . there need not be direct communication between the conspirators. There can be a "wheel" conspiracy, where only one person in the conspiracy communicates directly with each of the others, and a "chain" conspiracy, where A communicates with B, B with C, and C with D. However, these metaphors cannot substitute for substantive requirements. The common venture requirement guards against several conspiracies being falsely rolled into one.

[74] In summary, I am satisfied that all of the evidence introduced by the appellant at the extradition hearing showed conduct that underlies the American charges and may, therefore, be used in making the assessment under s. 18(1)(b) of the Act.

[75] The second step in the assessment under s. 18(1)(b) is to determine whether, if this conduct occurred in Canada, it would constitute a prima facie case of a Canadian offence. There can be no doubt that the evidence, if accepted, establishes that the respondents committed the offence of conspiracy to traffic in heroin and also the substantive offence of trafficking in heroin. I am satisfied that the evidence meets the requirements of s. 18(1)(b) and would justify a court issuing a warrant of committal for each of the respondents.

[76] Szabo argues that his committal would infringe ss. 6(1) and 7 of the Charter and that these infringements cannot be justified pursuant to s. 1. This argument rests on the assertion that Szabo was only present in Canada, that his offence was committed here and that he did nothing more than sell heroin to someone who happened to be a foreign visitor to Canada. Put another way, Szabo argues that his conduct had no connection to the American charges. I have already set out why I disagree with this position. I see no merit to the arguments based on the Charter.

Issue No. 2: Appellate Delay

[77] The respondents apply for an order dismissing this appeal or alternatively, for an order staying all proceedings against them. This application is based on an alleged breach of s. 7 of the Charter arising from the delay between the date when the extradition judge discharged the respondents and the hearing of this appeal.

[78] On June 5, 1997, the extradition judge ordered that the respondents be discharged. Over the next few months, the United States served the respondents with a notice of this appeal and filed it in this court on September 12, 1997. [See Note 3 at end of document.] This appeal was argued approximately 25 months later on October 13, 1999.

[79] The reasons for the delay reflect poorly on the appellant. Although there was considerable delay awaiting the completion of the transcripts, the transcripts, other than the one for June 5, 1997, were unnecessary for argument of the appeal. There was no viva voce evidence at the extradition hearing. The hearing days before June 5 only involved submissions by counsel. The delay occasioned by the appellant waiting for these transcripts was unnecessary. There was also additional delay occasioned by the appellant's failure to promptly assign the file to appellate counsel within the Crown office.

[80] On this application, the respondents each filed affidavits setting out the prejudice they allege has been caused by the delay. These affidavits allege prejudice of a personal nature. There are no specific allegations of prejudice to the conduct of the appeal or to the defence of the charges should the respondents be extradicted. Two of the affidavits refer to the general loss of memory by witnesses arising from the passage of time, but nothing more specific is alleged.

[81] The respondents took no steps under the Criminal Appeal Rules to advance or expedite the hearing of the appeal.

[82] The respondents submit that the delay has infringed their rights under s. 7 of the Charter. The Supreme Court addressed the issue of appellate delay in R. v. Potvin, 1993 113 (SCC), [1993] 2 S.C.R. 880, 83 C.C.C. (3d) 97. Sopinka J., for the majority, held that s. 11(b) of the Charter does not apply to the delay involved in an appeal from conviction by an accused or to an appeal from an acquittal by the Crown. He concluded that although s. 11(b) does not apply, s. 7 may in appropriate circumstances afford a remedy for appellate delay.

[83] Sopinka J. pointed out that the rules of criminal procedure enable a party interested in a timely disposition of an appeal to eliminate any substantial delay on the part of the adversary. He went on to say that "[a]s for systemic delay, resort can be had to s. 7 in cases in the cases in which real prejudice is occasioned." In referring to real prejudice, Sopinka J. was addressing circumstances in which the fairness of the trial had been affected by the delay. The use of s. 7 in these circumstances is an application of the court's power to remedy an abuse of process that is enshrined in s. 7 as a principle of fundamental justice.

[84] Sopinka J. concluded in Potvin that an 18-month delay between a stay of proceedings and the hearing of an appeal did not constitute a breach of s. 7 because no evidence was offered to show that any real prejudice resulted from the appellate delay.

[85] Although the total delay in present cases is approximately 25 months, the respondents in this case have not satisfied the test in Potvin. The respondents took no steps under the Criminal Appeal Rules, SI/93-169 to eliminate the delay caused by the Crown. Section 19.5(2) of the Extradition Act provides that the rules of the court made under s. 482 of the Criminal Code apply to appeals under the Act. Under Ontario Criminal Appeal Rule 20, a respondent may request that the registrar serve notice on the appellant indicating that an appeal has not been perfected according to the scheme in the rules and that the appeal will be put before the court to be dismissed as an abandoned appeal unless perfected within 10 days.

[86] More importantly, the respondents do not allege any real prejudice. They have not shown that the fairness of their trial, if they are extradicted, will be affected by the delay. I would, therefore, dismiss this application.

DISPOSITION

[87] Section 19.8(a)(ii) provides that this court may set aside an order discharging a fugitive on the basis of a "wrong decision on a question of law." I am satisfied the extradition judge's order was based on an error in law and must therefore be set aside.

[88] Section 19.8 of the Extradition Act authorizes this court, where it sets aside an order of discharge, to either order a new hearing or order the committal of the fugitive with respect to the extradition crime for which the fugitive was discharged. In my view, there is nothing to be gained from ordering a new hearing. This case was argued on the basis of a "paper record". There was no viva voce evidence. This court is in as good a position as an extradition judge to determine the proper result. I am satisfied that there is sufficient evidence to justify an order committing each of the respondents for surrender.

[89] Accordingly, I would set aside the order discharging the respondents and issue a warrant of committal for each of the respondents with respect to both charges for which extradition is sought.

Application dismissed; appeal allowed.

Notes

Note 1: Article 8 of the Canada-United States Extradition Treaty, Can. T.S. 1976 No. 3 provides, "The determination that extradition should or should not be granted shall be made in accordance with the laws of the requested state."

Note 2: Section 3 of the Extradition Act provides that if there are inconsistencies between the Act and an extradition arrangement (a treaty), the arrangement prevails. There are articles in the Canada-United States Extradition Treaty that are very similar but not identical to sections in the Extradition Act. For example, Article 10 of the Treaty and s. 18 of the Act both set out the test to be applied to justify extradition. I see no inconsistency between any articles in the treaty and the provisions in the Act that would affect the issues raised in this appeal. The parties argued the appeal relying upon the wording of the sections in the Act and for ease of reference I will simply refer to those sections and not refer to the corresponding treaty provisions.

Note 3: Substituted service for D'Agostino, the last respondent to be served, was ordered on September 4, 1997.