DATE: 20040316

DOCKET: C39032

COURT OF APPEAL FOR ONTARIO

FELDMAN, SHARPE JJ.A. and MCCOMBS J. (ad hoc)

B E T W E E N:

THE UNITED STATES OF AMERICA – and – THE MINISTER OF JUSTICE and ATTORNEY GENERAL OF CANADA

Beverly J. Wilton for the respondents

Respondents

• and -

LEROY LATTY AND LYNVAL WRIGHT

Vanessa Christie for the appellants

Appellants

Heard: March 4, 2004

On appeal from a committal order of Justice H.E. Sachs of the Superior Court of Justice dated October 4, 2002 and an application for judicial review of an order of surrender of the Minister of Justice dated March 17, 2003.

BY THE COURT:

[1] The appellants are sought for extradition to the United States to face charges of conspiracy to traffic cocaine and conspiracy to possess cocaine for the purpose of trafficking. The American authorities allege that both appellants were parties to a scheme to transport large quantities of cocaine from the United States to the United Kingdom. It is alleged that an American Airlines flight attendant transported regular shipments of cocaine from New York to London from 1992 to 1999 and that the appellants coordinated the shipments from Canada.

[2] At the extradition hearing, the appellants made no submissions with respect to the sufficiency of the evidence, but rather challenged the constitutionality of ss. 32 and 33 of the Extradition Act, S.C. 1999, c.18 ("Act").

[3] Sections 32 and 33, introduced as part of the new Act that came into force in 1999, eliminate the need for first-hand sworn evidence and permit the requesting state to proceed on the basis of an unsworn record of the case. The foreign prosecutor or judge is required only to provide a summary of the evidence and to certify that the evidence is available for the purposes of prosecution in the requesting state.

32.(1) Subject to subsection (2), evidence that would otherwise be admissible under Canadian law shall be admitted as evidence at an extradition hearing. The following shall also be admitted as evidence, even if it would not otherwise be admissible under Canadian law:

(a) the contents of the documents contained in the record of the case certified under subsection 33(3);

(c) evidence adduced by the person sought for extradition that is relevant to the tests set out in subsection 29(1) if the judge considers it reliable.

(2) Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.

33.(1) The record of the case must include

(a) in the case of a person sought for the purpose of prosecution, a document summarizing the evidence available to the extradition partner for use in the prosecution;

(2) A record of the case may include other relevant documents, including documents respecting the identification of the person sought for extradition.

(3) A record of the case may not be admitted unless

(a) in the case of a person sought for the purpose of prosecution, a judicial or prosecuting authority of the extradition partner certifies that the evidence summarized or contained in the record of the case is available for trial and

(i) is sufficient under the law of the extradition partner to justify prosecution,

(ii) was gathered according to the law of the extradition partner.

(4) No authentication of documents is required unless a relevant extradition agreement provides otherwise.

(5) For the purposes of this section, a record of the case includes any supplement added to it.

[4] The extradition judge dismissed the constitutional challenge on the ground that she was bound by the decision of this court in United States of America v. Yang (2001), 2001 20937 (ON CA), 56 O.R. (3d) 52. The appellants appeal to this court, but they did not ask for a five-judge panel to reconsider Yang. They argue that that ss. 32 and 33 violate s. 7 of the Canadian Charter of Rights and Freedoms because

1. ss. 32(1)(a) and 33 permit the requesting state to proceed on the basis of an unsworn record of the case, and

2. s. 32(1)(c) imposes a "reliability" requirement on evidence adduced by the party sought for extradition.

[5] Following their committal for extradition, the appellants made written submissions to the Minister of Justice, requesting him to refuse to order their surrender on the following grounds:

1. That the conduct in respect of which the request for extradition is sought is properly within the jurisdiction of Canada to prosecute and extradition should be refused;

2. That extradition would be unjust and oppressive on the ground that

(a) the evidence against the appellants will be comprised of the allegations of a co-conspirator and wire tap evidence which would likely not be admissible in Canada;

(b) if convicted, the appellants will likely face the penalty of life imprisonment;

3. In the alternative, if the Minister does order their surrender, he should ask for assurances that the appellants will be given "two for one" credit for pre-trial custody in Canada.

[6] The appellant Latty is a Canadian citizen and argued that the Minister's decision to surrender him violates his s. 6(1) Charter right to remain in Canada. He also relied on s. 44(1)(a) of the Act requiring the Minister to refuse a surrender order if satisfied that such an order would be unjust or oppressive having regard to all the relevant circumstances. The appellant Wright is a landed immigrant and therefore unable to assert a s. 6(1) Charter claim, but he too relies upon s. 44(1)(a) of the Act. Both appellants also relied upon ss. 7 and 12 of the Charter in their submissions to the Minister.

[7] The Minister refused the appellants' requests and the appellants seek judicial review of the Minister's decision. (For ease of reference, we refer to them as "appellants" throughout, although for purposes of the judicial review application they are "applicants" before this court.)

[8] This appeal and application for judicial review was heard during the same week and by the same panel that heard the appeal in United States of America v. Ferras and the decisions in both cases are being released at the same time.

Analysis

1. Do ss. 32 and 33 violate s. 7 of the Charter because

(a) ss. 32(1)(a) and 33 permit the requesting state to proceed on the basis of an unsworn record of the case, and

(b) s. 32(1)(c) imposes a "reliability" requirement on evidence adduced by the party sought for extradition?

[9] The decision of this court in Yang is dispositive of both issues. We do not agree with the appellants that the statement in Yang at para. 54 - that finding ss. 32 and 33 valid "does not preclude an argument that the application of the provisions may, in a particular case, operate to violate the fugitive's rights" - requires the extradition judge to assess the reliability of the evidence. Rather, we read this passage as indicating that the extradition judge is entitled to consider the evidence with a view to determining whether the Charter rights of the person sought for extradition have been otherwise violated.

[10] The appellants raised the s. 32(1)(c) point before the extradition judge, but they did not seek to introduce evidence and accordingly, there is no factual basis to support their assertion that the reliability requirement violates their s. 7 rights. Moreover, for the reasons given in Ferras, we do not accept the submission advanced by the appellants on this point.

2. Should this court grant judicial review of the Minister's decision to order the appellants' surrender?

[11] We are not persuaded by the argument that we should grant judicial review of the Minister's decision to surrender the appellants on any of the grounds advanced.

(a) Validity of ss. 32 and 33

[12] To the extent the appellants rely on the argument that ss. 32 and 33 of the Act violate s. 7 of the Charter, we need not repeat what we have already stated above dismissing that contention.

(b) Offence could be prosecuted in Canada

[13] With respect to the argument that surrender should be refused on the grounds that the appellants could be prosecuted in Canada, the Minister concluded as follows:

I have considered this ground in light of the terms of article 17 of the Treaty and section 6(1) of the Charter. In order to determine whether prosecution would be "equally effective in Canada, given the existing domestic laws and international co-operative arrangements" or indeed, whether prosecution in Canada would even be "a realistic option" as described by the Supreme Court of Canada in United States v. Cotroni (1989), 1989 106 (SCC), 48 C.C.C. (3d) 193 (S.C.C.), this matter was referred to the competent prosecutorial authority for assessment. Counsel for the Attorney General of Canada concluded that prosecution of each of these two persons in Canada, either separately or jointly, would not be equally effective to extradition and was not a realistic option.

I note that the cocaine was assembled and distributed through the United States for onward delivery to the United Kingdom using employees of an American airline. American investigators played the major role in developing the case and most of the witnesses are in the United States. There are no charges in Canada and as indicated above none are contemplated. I would not give effect to your submissions on this point.

[14] We see no reason to interfere with that determination. It is entirely consistent with Cotroni, supra at p. 225. The allegations involve a sophisticated international drug conspiracy involving several parties who are being prosecuted in the United States. The impact of the offence was most clearly felt in the United States and the United Kingdom, the investigation was primarily that of the American authorities, and most of the acts in furtherance of the conspiracy were committed in the United States. Criminal proceedings have already been commenced in the United States.

(c) Possibility of life imprisonment

[15] The appellants submitted expert evidence to the effect that if convicted, they could well face life imprisonment with no possibility of parole. While Canadian law does provide for a maximum of life imprisonment for similar offences, it is highly unlikely that the appellants would face a life sentence if prosecuted in Canada. However, we do not accept the contention that the prospect of a more severe sentence in the United States than would be imposed in Canada brings this case within the ambit of United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283 where the Supreme Court held at p. 129 that "a particular treatment or punishment may sufficiently violate our sense of fundamental justice as to tilt the balance against extradition. Examples might include stoning to death individuals taken in adultery, or lopping off the hands of a thief. The punishment is so extreme that it becomes the controlling issue in the extradition and overwhelms the rest of the analysis." In Burns, the Supreme Court of Canada held that extradition to face the death penalty would violate s. 7 of the Charter. The imposition of the maximum penalty that could be imposed for the same offence if committed in Canada simply does not fall into the same category as the death penalty, stoning or lopping off hands. Even if, in practice, such a sentence would rarely be imposed in this country, it is available under our law and it does not "sufficiently violate our sense of fundamental justice" to amount to a Charter violation.

(d) Credit for pre-trial custody

[16] Finally, we do not agree that the Minister's decision not to seek the assurance of the American authorities that the appellants receive a two for one credit for time served in pre-trial custody violates the appellants' rights under ss. 6, 7 or 12 of the Charter. While credit along these lines has become common in Canada, as the Minister observed in his decision rejecting this argument, there is a different regime in place in the United States to determine the appropriate credit for pre-trial custody administered by the federal prison authorities. As decided by this court in Adam v. United States of America (2003), 2003 31874 (ON CA), 64 O.R. (3d) 268, refusal to attach the condition requested does not violate the appellants' Charter rights.

Conclusion

[17] For these reasons, we dismiss the appeal and the application for judicial review.

"K. Feldman J.A."

"Robert J. Sharpe J.A."

"D. McCombs J. (ad hoc)"

Released: March 16, 2004