DATE: 20040316
DOCKET: C38689, C39662
COURT OF APPEAL FOR ONTARIO
FELDMAN, SHARPE JJ.A. and MCCOMBS J. (ad hoc)
B E T W E E N:
UNITED STATES OF AMERICA – and – HER MAJESTY THE QUEEN – and – MARTIN CAUCHON, MINISTER OF JUSTICE
Beverly J. Wilton for the respondents
Respondents
- and -
SHANE TYRONE FERRAS
Brian H. Greenspan and Seth P. Weinstein for the appellant
Applicant/Appellant
Heard: March 2, 2004
On appeal from a committal order of Justice R.D. Reilly of the Superior Court of Justice dated August 15, 2002 and an application for judicial review of an order of surrender of the Minister of Justice dated February 26, 2003.
BY THE COURT:
[1] The appellant, a Canadian citizen, was indicted in the United States, together with twenty-eight other individuals, on several charges of securities fraud, conspiracy, and money laundering. He was arrested in Ontario on a provisional warrant of arrest issued by the United States District Court for the Eastern District of New York and committed for extradition by Reilly J. At the extradition hearing, the appellant conceded that there was sufficient evidence to commit him for extradition. However, he challenged the constitutionality of ss. 32(1)(a) and 33(1) of the Extradition Act, S.C. 1999, c. 18 (“Act”). The appellant conceded that the extradition judge was bound by this court’s decision in United States of America v. Yang (2001), 2001 20937 (ON CA), 56 O.R. (3d) 52, upholding the constitutionality of those sections, but argues before this court that Yang did not address the situation of a Canadian citizen being sought for extradition.
[2] Following his committal, the appellant directed written submissions to the Minister of Justice requesting the Minister to decline to order his surrender on the grounds that it would violate the appellant’s rights under ss. 6 and 7 of the Canadian Charter of Rights and Freedoms. The Minister dismissed this request and ordered the appellant’s surrender.
[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 appellant appeals the order of committal and seeks judicial review of the Minister’s decision to surrender him to the American authorities. The appeal and the application for judicial review raise the following issues:
Does the evidentiary standard for the admissibility of evidence in ss. 32(1)(a) and 33 of the Act violate the appellant’s s. 7 Charter rights?
Does the s. 32(1)(c) “reliability” requirement imposed on evidence adduced by the party sought for extradition violate s. 7 of the Charter?
Would the appellant’s extradition violate his rights under s. 6(1) of the Charter?
[5] 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. Latty and Wright and the decisions in both cases are being released at the same time.
Analysis
- Does the evidentiary standard for the admissibility of evidence in ss. 32(1)(a) and 33 of the Act violate the appellant’s s. 7 Charter rights?
[6] Yang upheld the constitutionality of ss. 32(1) and 33. The appellant did not request a five-judge panel of this court to review the correctness of Yang. Accordingly, Yang governs.
[7] The appellant submits that Yang is distinguishable on the grounds that he is a Canadian citizen and is thereby entitled to insist upon a more stringent standard of evidence to justify his extradition. The appellant argues that in the case of a Canadian citizen, procedural fairness requires a higher evidentiary standard of reliability than contemplated by ss. 32 and 33, relying on expert evidence to the effect that civil law countries do not, as a general rule, permit the extradition of their nationals.
[8] We do not agree with this submission. It would be contrary to both the established pattern of Canadian extradition law and to the language of s. 7 of the Charter, which guarantees fundamental justice to “everyone”, not just to Canadian citizens, to say that s. 7 requires one extradition regime for non-Canadians and another for Canadian citizens. See Federal Republic of Germany v. Schreiber, [2002] O.J. No. 3170 (Sup. Ct.) at para. 38 per Watt J.: “By its terms, s. 7 applies to everyone. The comprehensive term ‘everyone’ embraces equally the citizen and the non-citizen. There is nothing in the terms of s. 7, nor inherent in the rights it protects, that justifies a differential application dependent on citizenship.”
[9] In our view, the treatment of citizens in civil law jurisdictions does not assist the appellant. Jurisdictions that refuse to extradite citizens typically assert jurisdiction to try their own citizens for offences committed abroad. This stands in stark contrast with common law regimes, including that of Canada, where the assertion of criminal law jurisdiction is, as a general rule, territorial for citizens and non-citizens alike. We shall return to the question of citizenship below when considering the appellant’s s. 6(1) argument.
- Does the “reliability” requirement imposed by s. 32(1)(c) on evidence adduced by the party sought for extradition violate s. 7 of the Charter?
[10] The appellant submits that as evidence led by an individual sought for extradition must be considered “reliable” by the extradition judge, s. 32(1)(c) imposes a higher standard on the individual than it imposes on the requesting state, and should be struck down as violating the principles of fundamental justice guaranteed by s. 7 of the Charter. In our view, this argument must be dismissed. The appellant did not raise this argument either before the extradition judge or before the Minister. Nor did he not attempt to lead evidence on his extradition hearing. The argument is advanced for the first time on appeal with no factual basis. In these circumstances, it is not open to the appellant to advance this submission on this appeal.
[11] We would also observe that while the point was not explicitly raised in Yang, Rosenberg J.A. did consider the argument when assessing the constitutionality of ss. 32 and 33 as a whole. Rosenberg J.A. referred to Bourgeon v. Canada (Attorney General) (2000), 2000 22635 (ON SC), 187 D.L.R. (4th) 542 (Ont. Sup. Ct.) where it was held that the imposition of the reliability requirement in s. 32(1)(c) was fundamentally unfair. At para. 58, Rosenberg J.A. expressly disagreed with the proposition “that fairness requires that the reliability condition imposed by statute upon evidence sought to be adduced by the fugitive must also be applied to the evidence sought to be adduced by the extradition partner.” See also Germany v. Ebke (2001), 2001 NWTSC 17, 203 D.L.R. (4th) 415 (N.W.T. S.C.), affirmed 2003 NWTCA 1, [2003] 9 W.W.R. 61 (N.W.T.C.A.), leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 178; United States of America v. Richardson, [2003] O.J. No. 823 (Sup. Ct.). The reliability requirement in s. 32(1)(c) must be read in the context of the section as a whole. Extradition involves foreign proceedings and Parliament has decided that, in the interest of comity, evidence may be led even if it would not otherwise be admissible under Canadian law. In the case of evidence led by the requesting state, pursuant to s. 33(3), the record of the case will not be admitted unless certified by a judicial or prosecuting authority of the requesting state to be sufficient to justify prosecution and as having been gathered according to the law of the requesting state. To require the same certification for evidence led by the person sought for extradition would not be practicable and, indeed, would almost certainly work to the individual’s disadvantage. It is replaced, in a functional sense, by the reliability requirement and, in our view, the reliability requirement should be interpreted accordingly. This does not, in our view, produce a situation where the evidence led by the individual will be subjected to a higher admissibility threshold than the evidence led by the requesting state.
[12] It is common ground that the extradition of a Canadian citizen constitutes a prima facie violation of s. 6(1) of the Charter that must be justified as a reasonable limit under s. 1: see United States of America v. Cotroni, 1989 106 (SCC), [1989] 1 S.C.R. 1469. The appellant argues that the relaxed evidentiary standard of reliability introduced by ss. 32 and 33 of the Act is, when applied to a Canadian citizen, fundamentally unfair and therefore cannot be justified as a reasonable limit on the appellant’s s. 6(1) right. The Minister rejected this submission on the following ground:
The evidentiary rules under the Act do not alter the fact that extradition is a justified limitation upon section 6 Charter rights. It is my view that admissibility of evidence at an extradition hearing is a procedural fairness and fundamental justice issue and not a citizenship rights issue. Accordingly, the real issue is whether committing an individual for extradition based upon evidence provided in a Record of the Case accords with the principles of fundamental justice. As indicated above, these provisions have been judicially determined to comport with the principles of fundamental justice. Consequently, I see no basis to refuse surrender based on this submission.
[13] We see no reason to interfere with the Minister’s decision. As we have already noted, Yang holds that the evidentiary regime established by ss. 32 and 33 accords with the principles of fundamental justice. In our view, that determination presents an insurmountable hurdle to the argument that those same provisions fail to qualify as a reasonable limit on the appellant’s s. 6(1) rights.
Conclusion
[14] Accordingly, the appeal and the application for judicial review are dismissed.
“K. Feldman J.A.”
“Robert J. Sharpe J.A.”
“D. McCombs J. (ad hoc)
Released: March 16, 2004