DATE: 20011031 DOCKET: C35331
COURT OF APPEAL FOR ONTARIO
RE:
THE UNITED STATES OF AMERICA (Respondent) –and– JOHN KUCAN (Appellant)
BEFORE:
FINLAYSON, AUSTIN and SHARPE JJ.A.
COUNSEL:
Frederick Caplan, for the appellant
Peter DeFreitas, for the respondent
HEARD:
October 24, 2001
RELEASED ORALLY:
October 24, 2001
On appeal from the committal order of Justice James C. Kent dated November 3, 2000.
E N D O R S E M E N T
[1] The appellant is a fugitive wanted for trial in the United States on charges relating to his role in a stolen truck ring. The Canadian offences defined by the Minister in the Authority to Proceed are conspiracy to possess stolen property, possession of stolen property, and bringing into Canada property obtained by crime.
[2] After an extradition hearing, the appellant was committed for surrender on those charges. The appellant only appeals against his committal on the charge of bringing into Canada property obtained by crime. He concedes that he was properly committed for surrender on the other two charges.
[3] On June 18, 1999, the former Extradition Act was repealed and the new Extradition Act, S.C. 1999 c. 18 was proclaimed in force. Because the hearing of this extradition request began after the date of proclamation, the proceedings in this case are governed by the new Act.
[4] This court had the opportunity of considering the new Act in United States of America and Attorney General of Canada v. Zhi Xing Yang, released September 11, 2001. Rosenberg J.A., speaking for the court, said at para. 5:
The combined effect of ss. 15 and 29 [of the Act] is to implement the double criminality requirement. The authority to proceed sets out the Canadian offence that is equivalent to the offence allegedly committed in the extradition partner state. The extradition judge is therefore not concerned with foreign law. He or she merely determines whether there is evidence of conduct that would amount to the Canadian offence described in the authority to proceed. The evidence must be sufficient as would justify an accused’s committal for trial if the offence were alleged to have been committed in Canada.
[5] We agree with the position of the respondent that the judge in appeal was restricted in the exercise of his power by the language of the Authority to Proceed. It was not open to him to consider the nature of the charges in the United States of America. He is obliged to accept the statement of the Minister that the alleged conduct corresponds to the named Canadian offences, including the one complained of, namely “bringing into Canada property obtained by crime contrary to section 357 of the Criminal Code.”
[6] This court in appeal is similarly restricted. There is no application for judicial review of the Minister’s decision before us.
[7] Accordingly, the appeal is dismissed.
Signed: “G.D. Finlayson J.A.”
“Austin J.A.”
“Robert J. Sharpe J.A.”