DATE: 20031029

DOCKET: C38086

COURT OF APPEAL FOR ONTARIO

RE:

UNITED STATES OF AMERICA (Appellant/Requesting State) –and– KWOK YEUNG CHAN and MINH QUYEN TANG (Respondents/Persons Sought)

BEFORE:

O’CONNOR A.C.J.O., MOLDAVER and GILLESE JJ.A.

COUNSEL:

Kevin Wilson

for the appellant

Alan D. Gold

for the respondent Kwok Yeung Chan

Minh Quyen Tang

the respondent in person

HEARD AND ENDORSED:

October 28, 2003

On appeal from the stay of proceedings ordered by Justice Wailan Low of the Superior Court of Justice on April 12, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] We question whether the extradition judge had authority to make the impugned production order. Assuming, however, that she did, we are of the view that there is no basis for it. If the extradition judge was of the opinion that the record did not contain sufficient evidence to satisfy the test for committal under s. 29(1) of the Extradition Act, the proper course would have been to discharge the respondent. (See U.S.A. v. Yang (2001), 2001 20937 (ON CA), 157 C.C.C. (3d) 225 at para. 63.)

[2] Given our view that the production order should not have been made, we do not see this as a proper case for ordering the exceptional remedy of a stay because of the appellant’s failure to comply with it.

[3] In the result, the appeal is allowed and a new extradition hearing is ordered. We note that Mr. Tang appeared in person and made submissions.