DATE: 20011030 DOCKET: C34862 C34864 C34865 C35594 C36281

COURT OF APPEAL FOR ONTARIO

RE:

UNITED STATES OF AMERICA and THE MINISTER OF JUSTICE (Respondents) – and – RICHARD ARMAND ADAM (Appellant)

BEFORE:

FELDMAN, SHARPE and CRONK JJ.A.

COUNSEL:

A. Michael Stein for the appellant and Richard Armand Adam (in person)

Bradley Reitz for the respondent

HEARD:

October 11, 2001

On appeal from the habeas corpus ruling by Mr. Justice Laforme on October 25, 1999; the habeas corpus ruling by Mr. Justice Ewaschuk on January 4, 2000; the committal order issued by Mr. Justice Lederman on July 5, 2000; the surrender order of the Minister of Justice dated December 1, 2000; and the application under s. 69 of the Extradition Act dismissed by Mr. Justice Grossi on February 2, 2001.

E N D O R S E M E N T

[1] These appeals arise from extradition proceedings on charges relating to an allegedly fraudulent loan scheme. The appellant was arrested for extradition in August 1997. An extradition hearing was held and on October 21, 1997, a warrant of committal was issued. That committal order was set aside on appeal by this court on May 17, 1999 and a new hearing was ordered. Prior to the hearing of the appeal, in October 1998, a new indictment was returned against the appellant in the United States. This “superseding” indictment altered the number of co-defendants and narrowed the scope of the charges against the appellant. After the order of this court directing a new hearing, the new Extradition Act came into force in June 1999.

[2] In October 1999, prior to the second extradition hearing, the appellant brought a habeas corpus application before Laforme J. The appellant argued that the superseding indictment created a new set of charges and that under the Treaty with the United States and the Extradition Act, new documents had to be filed to recommence the extradition proceedings. Laforme J. dismissed the habeas corpus application, ruling that the appellant’s detention was valid and that the appellant’s argument should be presented at the extradition hearing.

[3] In December 1999, the appellant filed a further habeas corpus application on the ground that the Minister had not issued an authority to proceed pursuant to s. 15 of the Extradition Act. Ewaschuk J. dismissed that application, ruling that the appellant’s detention was valid pursuant to the original arrest warrant issued under the old Act.

[4] The extradition hearing was to commence in February 2000, but did not proceed as Lederman J. ruled that the Minister was required to file an authority to proceed. The authority to proceed was filed and the hearing was adjourned to June 2000. After the hearing, Lederman J. ruled that the respondents had satisfied the relevant legal and factual requirements. He dismissed the appellant’s abuse of process application pursuant to s. 7 of the Charter and the appellant’s motion concerning alleged non-compliance with the Treaty, and ordered the appellant committed into custody for surrender for extradition.

[5] The appellant made submissions to the Minister of Justice pursuant to s. 43 of the Extradition Act. By letter dated December 1, 2000, the Minister provided detailed reasons for her decision to order the appellant’s surrender to the United States. The appellant then moved before Grossi J. for an order of release pursuant to s. 69 of the Extradition Act on the ground that the Minister had not made her order in a timely fashion in compliance with s. 40 of the Extradition Act. Grossi J. dismissed that application.

[6] Before this court, the appellant appeals the dismissal of his habeas corpus applications by Justices Laforme and Ewaschuk, the decision of Lederman J. committing him for extradition, and the dismissal of the s. 69 motion by Grossi J. The appellant also seeks judicial review of the Minister’s order pursuant to s. 57 of the Extradition Act.

[7] These appeals and the application for judicial review raise a number of overlapping issues which may be summarized as follows:

1. Is the appellant entitled to an order releasing him pursuant to s. 69 of the Extradition Act on the ground that the Minister failed to comply with the time limits prescribed by s. 40 of the Extradition Act?

2. Did the superseding indictment require the authorities to file additional materials or take additional proceedings to validate the extradition?

3. Did the respondents fail to comply with the requirements of the Extradition Act relating to the need for an authority to proceed?

4. Did Lederman J. err in dismissing the appellant’s abuse of process motion?

5. Are there grounds for judicial review of the Minister’s order to surrender the appellant to the United States?

Analysis

Issue 1 Is the appellant entitled to an order releasing him pursuant to s. 69 of the Extradition Act on the ground that the Minister failed to comply with the time limits prescribed by s. 40 of the Extradition Act?

[8] The Extradition Act, s. 40 provides that the Minister may, within a period of 90 days after the date of a person’s committal to await surrender, order that the person be surrendered to the extradition partner. Under s. 40(5), the Minister may extend this period by one additional period that does not exceed 60 days. The Minister did extend the period for the order to December 2, 2000. On the appellant’s s. 69 application for release, Grossi J. found that the appellant did not receive until December 8, 2000, the Minister’s letter dated December 1, 2000, stating that an order for his surrender had been made and that no formal order for the appellant’s surrender had been supplied to the appellant or his jailer up to the time the application was heard. However, Grossi J. also found that the Minister in fact had made an order for the appellant’s surrender on December 1, 2000 on the basis of the Minister’s statement to that effect in her letter. Grossi J. ruled that the Minister was not required to deliver the order to the jailer on or before December 2, 2000 and dismissed the application.

[9] The appellant submits that as the liberty of the subject is at stake, strict compliance with the time limits prescribed by the Extradition Act is required and further, that the Minister does not “make” the order for surrender until the formal order is delivered to the jailer.

[10] In our view, the appellant has failed to establish a basis for us to interfere with Grossi J.’s dismissal of the s. 69 application. Even if we were to accept the appellant’s submission that the order is only “made” when delivered to the jailer (a point we find unnecessary to decide), we are satisfied that “sufficient cause is shown against the discharge” within the meaning of s. 69. At the time the Minister considered the appellant’s submission and made her decision for his surrender to the United States, the appellant had appealed the order of Lederman J. committing him for surrender. Pursuant to the Extradition Act, the appellant could not be surrendered until he either abandoned his appeal or the appeal was finally decided. It follows that while the Minister’s order is a necessary step in the extradition process, the timing of that order had no practical effect in this case at the time of the s. 69 application, because of the outstanding appeal. The legal basis for the appellant’s detention was Lederman J.’s committal order which, under the Act, continued to provide legal justification for his detention so long as his appeal from that order was outstanding. As Grossi J. stated, the Minister could not require the appellant to be surrendered in violation of the Extradition Act. It follows that even if the Minister’s order for surrender should have been in the hands of the jailer on or before December 2, 2000, failure to comply with this alleged requirement does not vitiate the legality of the appellant’s detention or provide a basis in law for ordering his release under s. 69.

[11] Accordingly, we would dismiss the appeal from the order of Grossi J. dismissing the s. 69 application.

Issue 2 Did the superseding indictment require the authorities to file additional materials or take additional proceedings to validate the extradition?

[12] We do not accept the submission that the superseding indictment had the effect of invalidating the ongoing extradition proceedings or requiring the respondents to file any additional materials. As we have already noted, the new indictment narrowed the scope of the charges against the appellant. It did not add any new allegations against him. There is nothing in the Extradition Act or in the Treaty with the United States that requires the requesting State to file the formal indictment as part of the extradition record. Nor does the foreign indictment provide the basis for the proceedings before the extradition judge, where the question is whether there is prima facie admissible evidence of allegations that would constitute a criminal offence if committed within Canada.

[13] Article 9 of the Treaty does require the United States to provide a copy of the warrant of arrest when making its request for extradition. However, we do not agree with the submission that the respondents were required to file a fresh warrant of arrest after the superseding indictment had been issued. Article 9 of the Treaty relates to the originating request for extradition that is made through diplomatic channels. The respondents complied with its terms at the time these proceedings were initiated. We do not agree that in the circumstances of this case Article 9 creates an ongoing obligation to file fresh materials as the proceedings unfold. Accordingly, even if, as the appellant submits, the original warrant of arrest was no longer valid when the superseding indictment was issued, it was valid both at the time the original request for extradition was made through diplomatic channels and at the time the appellant was arrested. In our view, that satisfied the requirements of Article 9.

[14] Accordingly, we reject the appellant’s submission that the respondents were required to file a fresh warrant of arrest or the superceding indictment to maintain these proceedings for his extradition.

Issue 3 Did the respondents fail to comply with the requirements of the Extradition Act relating to the need for an authority to proceed?

[15] In our view, jurisdiction was not lost on account of the Minister’s alleged failure to provide an authority to proceed in the manner and within the times prescribed by ss. 14 and 15 of the Extradition Act. These extradition proceedings were initiated long before the new Extradition Act came into force. Because the proceedings were commenced under the scheme of the prior legislation, it was not possible for the Minister to comply with the requirements of s. 14 which are keyed to the provisions of the new Act. The appellant was not arrested pursuant to a provisional arrest warrant under s. 13 of the Act and accordingly the time limits prescribed by s. 14 that relate to “a person who has been provisionally arrested” have no meaningful application to this case.

Issue 4 Did Lederman J. err in dismissing the appellant’s abuse of process motion?

[16] In U.S.A. v. Cobb (2001), 2001 SCC 19, 152 C.C.C. (3d) 270, the Supreme Court of Canada referred to R. v. Keyowski (1988), 1988 CanLII 74 (SCC), 40 C.C.C (3d) 481 (S.C.C.) as setting out the authority for the nature of the remedy fashioned by the courts in the case of abuse of process, and the circumstances when recourse to it is appropriate:

The availability of a stay of proceedings to remedy an abuse of process was confirmed by this court in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128. On that occasion the Court stated that the test for abuse of process was that initially formulated by the Ontario Court of Appeal in R. v. Young (1984), 1984 CanLII 2145 (ON CA), 40 C.R. (3d) 289. A stay should be granted where "compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency", or where the proceedings are "oppressive or vexatious" ([1985] 2 S.C.R. at pp. 136-7). The court in Jewitt also adopted "the caveat added by the Court in Young that this is a power which can be exercised only in the 'clearest of cases' " (p. 137).

[17] We are not persuaded that there is any basis for us to interfere with the findings of Lederman J. relating to abuse of process. After considering the documentary evidence and hearing the appellant’s evidence, he concluded that the evidence was insufficient to warrant the drastic remedy of a stay of proceedings. As Lederman J. observed, the appellant can raise some of these matters by way of defence in the American proceedings. Lederman J. applied the correct legal test for committal and the appellant has failed to demonstrate any error that would justify this court’s intervention.

Issue 5 Are there grounds for judicial review of the Minister’s order to surrender the appellant to the United States?

[18] In U.S.A. v. Whitley (1994), 1994 CanLII 498 (ON CA), 94 C.C.C. (3d) 99, a decision affirmed by the Supreme Court of Canada (1996), 1996 CanLII 225 (SCC), 104 C.C.C. (3d) 447, this court at p. 110 described the standard of review of the Minister’s decision in the following terms:

…if the Minister violates the fugitive’s constitutional rights or otherwise errs in law, or if the Minister denies the fugitive procedural fairness, acts arbitrarily, in bad faith or for improper motives, or if the Minister’s decision is plainly unreasonable, then the reviewing court is entitled to interfere; otherwise, the court should defer to the Minister’s surrender decision.

[19] In our view, that standard of review has not been met in the present case. We have already disposed of most, if not all of the legal points that are also relied on in the judicial review application. The Minister provided the appellant with a fourteen page detailed assessment of the various submissions he made and the appellant has not shown that her decision was arbitrary or unreasonable, made in bad faith or for any improper motive, or that he was denied procedural fairness.

[20] The appellant urges us to consider evidence that he argues is exculpatory in nature. We have reviewed that evidence and we are not persuaded that it provides sufficient basis for the relief the appellant seeks. It is well established in law that it is not for the extradition judge, the Minister or this court on appeal or judicial review to make the ultimate determination of the issue of guilt or innocence. That is a matter for the foreign court. As we are satisfied that the relevant legal rules have been followed and that adequate evidence has been provided by the respondents, we would dismiss the application for judicial review.

Conclusion

[21] Accordingly, the appeals and the application for judicial review are dismissed.

“K. Feldman J.A.”

“Robert J. Sharpe J.A.”

“E. Cronk J.A.”