DATE: 20040310 DOCKET: C33598 and C38933

COURT OF APPEAL FOR ONTARIO

LASKIN, MOLDAVER AND GOUDGE JJ.A.

C33598

B E T W E E N:

PATRICK MANNINGHAM Appellant

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UNITED STATES OF AMERICA Respondent

Paul Slansky, For the appellant Bradley Reitz, For the respondent

A N D B E T W E E N:

C38933

PATRICK MANNINGHAM Applicant

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THE MINISTER OF JUSTICE FOR CANADA Respondent

Heard: December 16 and 17, 2003

On appeal against the committal of Justice Michael R. Dambrot of the Superior Court of Justice dated January 31, 2000.

GOUDGE J.A.:

[1] On October 27, 1997 a federal grand jury in the United States of America returned an indictment charging Patrick Manningham and others with narcotics offences.

[2] On March 22, 1999, Mr. Manningham was arrested in Canada pursuant to a request from the United States for his extradition for prosecution.

[3] On January 31, 2000, Mr. Manningham was committed for extradition by Dambrot J. on charges of conspiracy to export hashish, exporting hashish, conspiracy to import hashish, conspiracy to traffic in hashish and possession of the proceeds of crime.

[4] On September 27, 2002, the Minister of Justice ordered his surrender to the United States of America.

[5] In this court Mr. Manningham challenges both the committal order and the surrender decision made against him.

[6] On his appeal of the committal order Mr. Manningham makes four arguments:

(a) That s. 32 of the Extradition Act, S.C. 1999, c. 18 (the new Act) is unconstitutional and therefore cannot serve, as it did in this case, as the vehicle to admit evidence before the extradition judge.

(b) That because of the time limits in s. 14(1) of the Act he is entitled to a discharge, because the Minister did not issue the authority to proceed in his case until September 21, 1999, more than ninety days after June 18, 1999, the date on which the new Act was proclaimed in force.

(c) That under the new Act, the extradition judge is required to define the conduct underlying the charge in order assess whether there was a prima facie case.

(d) That in several respects the evidence before the extradition judge was insufficient for committal.

[7] In his application for judicial review of the Minister’s surrender decision, Mr. Manningham makes three arguments:

(a) That the Minister improperly fettered his discretion.

(b) That the Minister failed to properly consider the applicant’s rights under s. 6 of the Charter of Rights and Freedoms.

(c) That the Minister erred in concluding that his surrender to the United States would not violate his s. 7 Charter rights.

[8] For the reasons that follow, I conclude that each of these arguments must fail. I would therefore dismiss the appeal from the committal order and the application for judicial review of the Minister’s surrender decision.

[9] To provide the context for these issues only a brief summary of the alleged facts underlying the American indictment against Mr. Manningham is necessary.

[10] Mr. Manningham was involved with others in arranging for and carrying out the shipment of two large quantities of hashish from New York to Canada through Niagara Falls. The shipments were sent essentially on consignment with the proceeds of the sales of the hashish in Canada to be returned to the United States as they came in. Mr. Manningham was said to be directly involved in the transportation of the hashish into Canada, the return of the proceeds of sale to the United States and, possibly, the return of some poor quality hashish back into the United States.

[11] On June 18, 1999, the new Extradition Act came into force and the old Extradition Act, R.S.C. 1985, c. E-23 (the old Act) was repealed.

APPEAL OF THE COMMITTAL ORDER

[12] The appellant attacks the committal order on the basis of the four arguments referred to above. I will deal with each of them in turn.

[13] The first argument addresses s. 32 of the new Act. This section makes admissible in an extradition hearing more evidence than would otherwise be admitted under Canadian law. Most importantly, s. 33(3) extends admissibility to documents contained in the record of the case certified by the requesting state.

[14] The appellant sought to challenge s. 32 before the extradition judge as violating his rights under s. 7 of the Charter. However, counsel for the requesting state sought no benefit from s. 32 since the evidence was prepared to comply with the old Act. The extradition judge therefore found the issue to be moot and refused to hear the Charter challenge.

[15] In this court, the appellant renewed his Charter challenge. However, he recognized that since the decision of the extradition judge, this court has dismissed the same constitutional challenge in United States of America v. Yang (2001), 56 O.R. (3d) 52. As a result, the appellant directed no argument to this issue. I would dismiss the appellant’s first argument on the basis of Yang, in addition to the mootness reason given by the extradition judge.

[16] In his factum, the appellant raised several subsidiary arguments premised on an assumption that s. 32 is constitutionally unsound. Since I agree that the section is constitutional, these subsidiary arguments need not be dealt with.

[17] The appellant’s second argument addresses s. 14(1) of the new Act. That section requires discharge of an arrested person if a request for extradition has not been made by the foreign state within a specified number of days after the arrest. If that time line is honoured, discharge is required if the Minister has not issued an authority to proceed within thirty days of the request for extradition.

[18] The new Act first introduced the concept of the authority to proceed. Authority to proceed may be issued by the Minister of Justice after receiving an extradition request and upon being satisfied, in the case of a request for the purpose of prosecution, that it is in respect of a qualifying offence as defined in s. 3 of the Act. Once issued, the Attorney General may seek an order for the committal of the person being sought for extradition.

[19] The appellant’s argument depends on the timing of the steps in the extradition process in this case taken together with the proclamation date of the new Act, namely June 18, 1999. The process began with the appellant’s provisional arrest on March 22, 1999 pursuant to article 11 of the Extradition Treaty between Canada and the United States of America, 3 December 1971, C.T.S. 1976/3 (entered into force 22 March 1976). It provides, in case of urgency, for the provisional arrest of a person sought pending a formal request for his or her extradition through the diplomatic channel. The Extradition Treaty also requires that this extradition request be received within sixty days of the provisional arrest, failing which the arrested person must be released. In the appellant’s case, the request was received before the end of March 1999, shortly after his provisional arrest on March 22, 1999.

[20] At that time, since the new Act was not yet in effect, there was no such thing as an authority to proceed by which the Minister authorized the Attorney General to seek a committal order. Nonetheless, it appears that the Minister acted promptly to have the Attorney General do so. On April 23, 1999, within a month of receipt of the formal request, counsel for the Attorney General applied to the court for a date to commence the extradition hearing. September 23, 1999 was fixed for the hearing to begin.

[21] On June 18, 1999, the new Act came into force and the old Act was repealed. On September 21, 1999 an authority to proceed was issued by the Minister in respect of the appellant. The extradition hearing did not in fact commence on September 23, 1999, but was adjourned from time to time, and began on November 17, 1999.

[22] The appellant bases his argument on these facts, the relevant provisions of the new Act and the Interpretation Act, R.S.C. 1985, c. I-21. Section 14(1)(b) of the new Act provides that a person who has been provisionally arrested must be discharged if: (i) the request for extradition is not received within the time required by the extradition agreement authorizing the provisional arrest (in this case sixty days); or (ii) thereafter, the Minister does not issue an authority to proceed within thirty days of the request being made. Section 14(1)(b) reads as follows:

14. (1) A person who has been provisionally arrested, whether detained or released on judicial interim release, must be discharged

(b) if the provisional arrest was made pursuant to a request made under an extradition agreement that contains a period within which a request for extradition must be made and the supporting documents provided,

(i) when the period has expired and the extradition partner has not made the request or provided the documents, or

(ii) when the request for extradition has been made and the documents provided within the period but the Minister has not issued an authority to proceed before the expiry of 30 days after the expiry of that period.

[23] The transition provisions in the new Act provide inter alia that where the extradition hearing began by June 18, 1999, the provisions of the old Act apply to it despite its repeal. Since that did not occur in this case, the new Act applies. Section 84 of the new Act says this:

84. The Extradition Act repealed by section 129 of this Act applies to a matter respecting the extradition of a person as though it had not been repealed, if the hearing in respect of the extradition had already begun on the day on which this Act comes into force.

[24] Finally, the appellant looks to ss. 10 and 44(c) and (d) of the Interpretation Act. They provide as follows:

10. The law shall be considered as always speaking, and where a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its true spirit, intent and meaning.

11. Where an enactment, in this section called the “former enactment”, is repealed and another enactment, in this section called the “new enactment”, is substituted therefor,

(c) every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment in so far as it may be done consistently with the new enactment;

(d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto

(iii) in a proceeding in relation to matters that have happened before the repeal.

[25] The appellant argues that because the new Act applies he is entitled to a discharge since the authority to proceed against him was issued late. It was not issued within thirty days of the request for extradition being made, nor within thirty days or even ninety days of the proclamation of the new Act. He says that adapting the time lines in the new Act to his circumstances, as called for by ss. 44(c) and (d) of the Interpretation Act, requires that the time limits in s. 14(1) of the new Act commence at the latest on June 18, 1999, when the new Act takes effect. The Minister has at most the sixty days authorized by s. 14(1)(b)(i) plus the thirty days authorized by s.14(1)(b)(ii), and he was in breach of this time limit when he issued the authority to proceed on September 21, 1999, more than ninety days after the appellant’s provisional arrest.

[26] In response, the Crown simply relies on the decision of this court in United States of America v. Adam (2001), 151 O.A.C. 70, which was issued after the decision under appeal. The Crown says that this decision settles the issue against the appellant.

[27] The extradition judge dismissed the appellant’s argument for one main reason. He observed that the time limit established under s. 14(1)(b)(i) for issuing an authority to proceed had long ago passed and its enforcement could no longer fulfil the function of requiring the expeditious commencement of proceedings against those provisionally arrested because this had already been effected by events preceding June 18, 1999. He therefore concluded that this part of the procedure established by the new Act could not be adapted to the proceeding before him and need not be followed.

[28] The extradition judge also offered what he called a technical reason for finding against the appellant. He concluded that s. 14 accords rights only to those provisionally arrested under the new Act and since the appellant’s provisional arrest took place under the Extradition Treaty, s. 14 did not apply to him.

[29] I do not agree with the second reason offered by the extradition judge. In my view, s. 14(1) should not be read down to encompass only those who are provisionally arrested under the new Act. The opening language of the section suggests no such limitation but speaks generally of a person who has been provisionally arrested. Moreover, s. 14(1)(b) expressly contemplates persons whose provisional arrest was requested pursuant to an Extradition Treaty, such as the appellant.

[30] However, I would reach the same ultimate conclusion as the extradition judge although my reasons are slightly different from his main reason. Because I conclude that s. 14 does not compel the appellant’s discharge on the facts of this case, I need not decide whether this court in its short reasons in Adam decided that s. 14 can have no application to any case in which extradition proceedings were initiated before the new Act came into force or whether its conclusion was simply that s. 14 had no meaningful application to the case before it because of the particular facts.

[31] In this case, the timing of the initiation of extradition proceedings against the appellant means that the time limits of s. 14 of the new Act cannot be applied precisely according to their terms. An authority to proceed could not be issued within thirty days of a request for extradition made in late March 1999 because the concept was created only with the proclamation of the new Act on June 18, 1999.

[32] In such circumstances ss. 10 and 44 of the Interpretation Act require that the provisions of s. 14(1) be given effect according to their true spirit, intent and meaning and that they be conformed to so far as that can be done. In the words of s. 44(d) they are to be followed “so far as they can be adapted” to the particular case.

[33] I agree with the extradition judge that the time limit to issue an authority to proceed is one of the safeguards in the new Act designed to ensure that a person who is provisionally arrested for extradition is dealt with as expeditiously as possible so that his or her liberty interest is minimally impaired. Section 14(1) requires that the person be discharged if no request for extradition is made within sixty days of the arrest (or such longer period as the applicable extradition treaty provides). It also requires that the Minister issue the authority to proceed within thirty days of the extradition request. Section 24(1) requires a judge, on receiving the authority to proceed, to hold an extradition hearing. Once the authority to proceed has been issued, s. 21(3) requires an early date to be set for that hearing if the person has been provisionally arrested. The true spirit and intent of these sections is to ensure that extradition proceedings against a person provisionally arrested move forward as expeditiously as possible.

[34] As I have said, the exact time limits in s. 14(1) cannot be adapted precisely to this case. The trigger for the time limit for making the request for extradition, namely the provisional arrest, occurred months before the enactment of the new legislation. So did the trigger for the time limit for issuing the authority to proceed, namely the extradition request.

[35] However, in a functional sense both time lines were followed here. The extradition request was made before the end of March 1999, fewer than ten days after the appellant’s provisional arrest and well within a sixty day time limit. We know that the Minister authorized the Attorney General to proceed with an extradition hearing to seek a committal order within a further month, because on April 23, 1999, the court fixed a date for the commencement for that hearing. Although the Minister did not issue an authority to proceed when he instructed the Attorney General to apply to the court (because the concept did not yet exceed), he did issue that document prior to the date set for the hearing to commence.

[36] The appellant argues that the Minister should be held to a ninety day time limit or even a thirty day time limit running from the proclamation date of the new Act. To do so would be to adopt a judicially created trigger point different from that found in the new Act. More importantly, even the thirty day time limit would have changed nothing in practice. The Minister had already authorized the Attorney General to proceed. The appellant does not suggest that if the authority to proceed had been issued before September 21, 1999, the date previously fixed for the extradition hearing to commence would have been advanced at all. The extradition process was moved forward as expeditiously as possible from the date of provisional arrest.

[37] Thus, in my view, the true spirit and intent of the time lines in s. 14(1) of the new Act have been given effect to in this case. From a functional point of view, they have been adapted to this case as far as possible. The appellant’s second argument must therefore fail.

[38] The appellant’s third argument is that the extradition judge must define the conduct underlying the charge in the requesting state in order to discharge his or her task under s. 29(1) of the new Act. In other words, the appellant says that the extradition judge must determine the “conduct” alleged by the foreign charge against the person sought for extradition.

[39] I agree with the extradition judge’s finding that this argument must fail.

[40] Section 15 of the new Act requires the Minister to set out in the authority to proceed the name of the offence or offences under Canadian law that correspond to the conduct of the person alleged by the requesting state. Where the person is sought for prosecution, s. 15(3) provides as follows:

15(3) The authority to proceed must contain …

(c) the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person … as long as one of the offences would be punishable in accordance with paragraph 3(1)(b).

[41] The task of the extradition judge is then set out in s. 29(1)(a):

29. (1) A judge shall order the committal of the person into custody to await surrender if

(a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner.

[42] In Yang, supra, at para. 5 Rosenberg J.A. described the role of the extradition judge effected by these two sections as follows:

The combined effect of ss. 15 and 29 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. [Emphasis added.]

[43] The new Act strictly defines the role of an extradition judge. In this case Dambrot J. ably explained that role in the context of the companion role of the Minister in protecting the rule of double criminality which has always been vital to the law of extradition. I agree entirely with what he said at paras. 76, 77 and 78 of his reasons:

[76] The new Act is clear and unequivocal. The judge is to decide whether there is evidence admissible under the Act of conduct that, if it had occurred here, would justify committal in Canada on an offence set out in the authority to proceed. The problem under the old regime, if there was one, was that there was no place to look for guidance as to the offences upon which committal was sought other than the foreign arrest warrant or indictment. The new Act does not even require the foreign warrant or indictment to be placed before the extradition judge. The evaluation of evidence now clearly relates solely to the authority to proceed.

[77] This is not to say that the rule of double criminality has been abandoned. It remains enshrined in section 3 of the Act. Section 3 provides:

3. (1) A person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner for the purpose of prosecuting the person or imposing a sentence on – or enforcing a sentence imposed on – the person if

(a) subject to a relevant extradition agreement, the offence in respect of which the extradition is requested is punishable by the extradition partner, by imprisoning or otherwise depriving the person of their liberty for a maximum term of two years or more, or by a more severe punishment; and

(b) the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada,

(i) in the case of a request based on a specific agreement, by imprisonment for a maximum term of five years or more, or by a more severe punishment, and

(ii) in any other case, by imprisonment for a maximum term of two years or more, or by a more severe punishment, subject to a relevant extradition agreement.

[78] It is the task of the Minister, by virtue of s. 15(1), after receiving an extradition request, to determine compliance with s. 3(1)(a), or s. 3(3) where applicable, and then to determine what offences under Canadian law correspond to the conduct alleged against the person in the requesting state, as distinct from the question of the sufficiency of the evidence. Sections 32 and 33 of the Act then contemplate that evidence, which is available for use in the foreign prosecution, will be placed before the extradition judge in the form of affidavits or a record of the case. The judge then determines whether the conduct of the person sought, as disclosed in the evidence placed before him or her, satisfies the requirement of s. 3(1)(b). Finally, armed with the judge’s order of committal and report under s. 38, the Minister must decide, subject to review by the Court of Appeal of the relevant province pursuant to s. 57, whether surrender should be ordered. As will be seen, while the rule of double criminality is preserved by the new Act, the extradition judge is not its sole guardian. The extradition judge has but a modest role to play in ensuring that the rule is respected. The Minister has a significant role. In the end, the appellate courts have the final word.

[44] The extradition judge therefore discharges his or her role in protecting the rule of double criminality by determining whether there is evidence of conduct that would amount to the Canadian offence described in the authority to proceed. The extradition judge is not required by the new Act to go on to determine that this corresponds with the conduct alleged against the person in the requesting state. This ground of appeal must be dismissed.

[45] In this case, the authority to proceed against the appellant listed the offences of conspiracy to export hashish, exporting hashish, conspiracy to import hashish, conspiracy to traffic in hashish and possession of the proceeds of crime. While it is not a ground of appeal, I agree with the extradition judge that where the Minister finds conspiracy to be the offence under Canadian law that corresponds to the conduct alleged in the foreign state, some care should be taken in drafting the authority to proceed. If the facts give rise to a number of possible conspiracy offences, some of which might be broad and others narrow, some national and other international, the Minister should make clear what conspiracies he wants the extradition judge to consider. Fortunately, that was done here by counsel for the requesting state in argument. Without some clarity on this score, there will remain concerns both that the person sought for extradition will lack proper notice of the case to be met and that the offence for which the committal is ordered will not properly correspond to the crime for which the person will be prosecuted if surrendered.

[46] The latter concern reflects the rule of speciality, the other cornerstone of the law of extradition. While not obliged to do so, the extradition judge can also provide some protection of this rule by specifying particulars of the transaction for which committal is ordered either in the committal order, or in the accompanying report that the judge may make to the Minister pursuant to s. 38(1)(c) of the new Act. Then, apart from specific extradition arrangements, if the Minister ordered the surrender of a person for an offence that did not come within the conduct described, he arguably would have acted without jurisdiction.

[47] The appellant’s final argument addresses several respects in which he says that the evidence before the extradition judge was insufficient for committal. These can each be dealt with briefly.

[48] The appellant argues that because there is no proceeds of crime charge in the United States there can be no factual allegations in relation to that charge and therefore no conduct to consider. However, this ignores the fact that the extradition judge is not concerned with foreign law or the nature of the charge in the requesting state. As I have said, his or her task is simply to determine whether there is evidence of conduct that if it had occurred in Canada would justify committal for trial in Canada on the offence set out in the authority to proceed.

[49] The appellant also says that there was insufficient evidence that the appellant hired drivers to take the hashish across the border or that the substance was in fact hashish. However, there was ample evidence from the appellant’s co-conspirators from which the extradition judge could properly draw both conclusions.

[50] Finally, the appellant says that because he was discharged on the charge of importing, he had also to be discharged with respect to conspiracy to import. I disagree. There is no inconsistency. The appellant was discharged on the former charge because the witnesses did not know whether it was the appellant or a co-conspirator who had returned the inferior hashish from Canada to the United States. However, there was ample evidence that the appellant was part of a conspiracy to do so.

[51] In summary the appellant’s four challenges to the committal order must all fail. The appeal is dismissed.

JUDICIAL REVIEW OF THE SURRENDER DECISION

[52] The Minister’s decision to order the surrender of Mr. Manningham and the reasons for that decision were communicated to him in a nine page letter dated September 27, 2002. As applicants for judicial review of that decision Mr. Manningham raises the three arguments I have set out at the beginning of these reasons.

[53] First, the appellant argues that the Minister improperly fettered his discretion in making the surrender decision. He points to the following paragraph in the Minister’s letter:

As a general rule, my discretion to refuse surrender is justifiable only on compelling grounds related to specific provisions set out in the Extradition Act, the Treaty on Extradition between Canada and the United States of America, or where surrender would be contrary to the rights guaranteed by the Canadian Charter of Rights and Freedoms.

[54] I find no merit in this argument. The grounds set out by the Minister in this paragraph are all central to the surrender decision he is required to make. The Minister does not suggest that he will refuse to consider anything that pertains to these grounds or that he will not take into account other relevant considerations. Nor does the applicant suggest any grounds which the Minister declined to consider in reaching his decision. This argument fails.

[55] The applicant’s second argument is that the Minister failed in several respects to properly consider his rights under s. 6 of the Charter. He says that the Minister wrongly delegated the analysis required by United States of America v. Cotroni, [1989] 1 S.C.R. 1469 to a prosecutor, that a proper Cotroni analysis could not reasonably yield the conclusion that prosecution would be more effective in the United States, and that he should have been provided with disclosure of the full basis for the Cotroni analysis.

[56] This argument also fails. The Minister’s letter makes clear that he did not delegate the consideration of the applicant’s s. 6 rights. While the Minister properly indicated that he would not revisit the decision of the Canadian prosecuting authorities not to prosecute in this country absent bad faith, the Minister expressly reached his own conclusion that it was appropriate to try the applicant in the United States and set out his reasons for this conclusion. Most important were that the applicant’s alleged criminal conduct occurred in the United States, that the investigation was done by the American authorities, that the primary witnesses and evidence against the applicant are located in the United States, and that the American prosecutor is ready to proceed with this prosecution. In my view, the Minister’s conclusion is quite reasonable, particularly given the high degree of deference to be accorded to his decision with respect to domestic prosecution. See United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532 at para. 93.

[57] Nor is there any basis here for disclosure of the full Cotroni assessment. The applicant suggests that the decision to extradite, rather than to prosecute in Canada, must have been made in bad faith simply because it is lacking in merit. Since I have found the Minister’s decision to have been reasonable, it is not surprising that I conclude that the appellant’s claim of improper motive or bad faith has no air of reality and that there is therefore no requirement for disclosure.

[58] Thirdly, the applicant argues that the Minister did not properly consider his s. 7 rights. In particular he says that his psychological condition makes him a suicide risk if surrendered. However, the Minister considered this and found that it was not a sufficiently significant threat to constitute a violation of the applicant’s s. 7 rights. The Minister based his conclusion on a number of factors including a statement from the applicant that there was no risk of suicide from the surrender decision itself. In the applicant’s own view, only once surrender becomes an imminent threat is there cause for concern. The Minister viewed the risk as minimal because the applicant had faced the possibility of being tried and imprisoned in the United States and had responded rationally. The Minister concluded that surrender would not “shock the conscience” and did not violate the applicant’s s. 7 Charter rights. There is nothing in the Minister’s conclusion in this regard that I find unreasonable. Given the deference owed to the Minister’s conclusion, even a conclusion about the applicant’s Charter rights, I would not interfere with it.

[59] The applicant’s final argument is that the Minister did not consider in combination all the circumstances relevant to his surrender. However, I see nothing in the Minister’s letter of September 27, 2002 that would indicate that the Minister did not do this. This argument too must fail.

[60] In conclusion, the application for judicial review of the Minister’s surrender decision is dismissed as well as his appeal of the committal order.

Released: March 10, 2004 “JL”

“S. T. Goudge J.A.”

“I agree John Laskin J.A.”

“I agree M. J. Moldaver J.A.”