DATE: 20010813 DOCKET: C30548 and C32040
COURT OF APPEAL FOR ONTARIO
CARTHY and CHARRON JJ.A. and McCOMBS J. ad hoc
B E T W E E N :
UNITED STATES OF AMERICA
Requesting State
(Respondent)
Edward L. Greenspan, Q.C.
and Marie Henein,
- and -
for the appellant
LEIB WALDMAN
Fugitive
Kevin Wilson,
(Appellant)
for the respondent
A N D B E T W E E N :
MINISTER OF JUSTICE
Respondent
Heard: August 9, 2001
- and -
Released orally: August 9, 2001
LEIB WALDMAN
Fugitive
(Applicant)
On appeal from the order of committal for surrender pursuant to the Extradition Act by Morrison J. on April 22, 1998 and on the judicial review of the Minister of Justice’s order of surrender dated April 30, 1999.
BY THE COURT:
[1] We see no reason to interfere with the decision of the extradition judge on any of the three issues raised by the appellant.
[2] First, with respect to the charge of failing to surrender for service of sentence pursuant to an order of the court, it is our view that the extradition judge was correct in finding that the conduct alleged by the requesting state would constitute an offence if it occurred in Canada. We are in substantial agreement with the extradition judge’s analysis on this issue.
[3] Second, with respect to the sufficiency of the record, we are satisfied that there was sufficient evidence in relation to each of the constituent elements of the offences alleged by the requesting state for the reasons given by the extradition judge.
[4] Third, we are not satisfied that the extradition judge erred in finding that he had no jurisdiction to entertain the Charter application brought before him. The application was based on two grounds: (a) the alleged risk that Mr. Waldman would be deported to Romania at the conclusion of his sentence in the United States; and (b) the remarks made by a prosecutor and a judge which formed the subject-matter of a Charter application in United States v. Cobb (2001), 2001 SCC 19, 152 C.C.C. (3d) 270 S.C.C.
[5] It is conceded that the extradition judge did not have the jurisdiction to entertain the application on the first ground. It is also conceded that the application on the second ground, in so far as it was based on an allegation that Mr. Waldman would not receive a fair trial if surrendered, was also one that could only be entertained by the Minister of Justice and not by the extradition judge. It is not apparent from the material before us that any abuse of process issue, similar to the one entertained in the Cobb decision, was raised before the extradition judge. Even assuming that it was, we are not satisfied that the remarks in question, which were made in relation to another unrelated proceeding, could form the basis of a finding of abuse of process in Mr. Waldman’s case. We see no merit to the argument that the record could have been expanded on that point if the extradition judge had agreed to entertain the application. The same factual basis was relied upon on the Charter application before the Minister of Justice and there is no contention that the appellant did not have the opportunity to present a full record at that stage of the extradition process.
[6] For these reasons, the appeal from the order of committal is dismissed.
[7] With respect to the order of surrender, we see no reason to interfere with the decision of the Minister of Justice. All relevant issues put before her were fully canvassed and we see no error in the exercise of her discretion. The application is also dismissed.
(signed) “J. J. Carthy J.A.”
(signed) “Louise Charron J.A.”
(signed) “D. McCombs J. (ad hoc)”