DATE: 20050128
DOCKET: C39272 C40953
COURT OF APPEAL FOR ONTARIO
ROSENBERG, GOUDGE AND BORINS JJ.A.
B E T W E E N :
THE UNITED STATES OF AMERICA AND THE MINISTER OF JUSTICE AND ATTORNEY GENERAL OF CANADA
(Respondents)
- and -
RUSSELL JOHN FONG
(Applicant/Appellant)
John Norris for the appellant
Croft Michaelson and Maria Gaspar for the respondent
Heard: October 22, 2004
On appeal from the Order of Committal of Justice Harriet E. Sachs of the Superior Court of Justice dated December 18, 2002, and in the matter of an application for judicial review of the Order of Surrender of the Minister of Justice dated October 27, 2003.
GOUDGE J.A.:
[1] On December 18, 2002, the appellant was committed for extradition to the United States of America by Sachs J. On October 27, 2003, the Minister of Justice ordered that he be surrendered to the United States for trial on the offence of conspiracy to distribute methylenedioxymethamphetamine (“MDMA”) in the United States. MDMA is known colloquially as “ecstasy”.
[2] The appellant appeals his committal order on the basis that the Authority to Proceed authorizing the Attorney General to seek that order does not describe the conspiracy offences said to correspond to his conduct with enough particularity to let him know the case he had to meet.
[3] The appellant also seeks judicial review of the Minister’s surrender order. He says that the Minister erred in finding that Canadian law would provide for jurisdiction over the offence if the factual situation was reversed and the appellant’s conduct had occurred in the United States instead of Canada. He argues that this led the Minister to wrongly conclude that the discretion given to him by Art. 3(2) of the Treaty on Extradition, 22 March 1976, Can. T.S. 1976 No. 3 as amended between Canada and the United States was not engaged. The appellant also says that the Minister erred in failing to provide him the disclosure necessary to make complete submissions against surrender and in failing to provide sufficient reasons for the surrender decision. Finally, the appellant says that the Minister’s decision assumed that the main prosecution witness was in Florida. It is now agreed that this witness has been returned to Canada and is now on parole.
[4] For the reasons that follow, I would give effect to none of these arguments save the last. I would therefore dismiss the appeal from the committal order, but I would adjourn the application for judicial review of the surrender order so that the appellant can ask the Minister to amend the surrender order in light of the new facts concerning the location of the main prosecution witness.
THE FACTS
[5] The facts stated in the Record of the Case certified by the American authorities are straightforward.
[6] On February 8, 2001, agents of the United States Drug Enforcement Agency arrested Pierre Mercier and seized approximately 28,000 units of MDMA from his Florida hotel room. Mr. Mercier told them that he obtained the drugs from Frederick Antwi. Mr. Antwi was arrested in Florida the same day. He admitted that he had supplied the drugs to Mr. Mercier and said that he received them in Canada from the appellant.
[7] The Record of the Case states that Mr. Antwi will testify as to the conspiracy he entered into with the appellant to distribute MDMA in Florida. Mr. Antwi will testify that he made two trips to Florida for this purpose. On the first trip he smuggled approximately 30,000 units of MDMA into the United States, which he then distributed in Florida. On the second trip he did the same with approximately 32,000 units. In both instances, he received the drugs from the appellant who was aware that they were to be trafficked in the United States.
[8] Following his arrest on February 8, Mr. Antwi assisted the American authorities by making several monitored telephone calls to the appellant to confirm the appellant’s involvement in supplying the MDMA which Mr. Antwi had transported to Florida. Through these calls, Mr. Antwi also arranged to have an undercover RCMP officer meet with the appellant in Toronto for the purpose of obtaining samples of the MDMA that the appellant had for sale and that Mr. Antwi could then distribute in the United States.
[9] The appellant was arrested in Toronto on March 12, 2001, when he met with the undercover officer to sell him 10,000 units of MDMA. Pursuant to a search warrant executed the next day, the police seized the units from the appellant’s vehicle and $29,800 in U.S. currency from his residence.
[10] The United States seeks to extradite the appellant for the purpose of prosecution on an indictment filed in Florida on March 7, 2001, charging him, Mr. Mercier and Mr. Antwi with conspiracy to possess and distribute approximately 34,000 units of MDMA in Florida.
[11] The indictment charges that the conspiracy existed from an unknown date but from at least January 2001 until February 9, 2001. At the committal hearing, counsel for the United States indicated that apart from certain telephone calls from Mr. Antwi to the appellant the United States was not relying on the events after February 9, 2001, that gave rise to the charges subsequently laid against the appellant in Canada on February 12, 2002.
[12] The domestic charges alleged that on March 12, 2001, the appellant trafficked in MDMA and on March 13, 2001, he had possession of that drug for the purpose of trafficking and had in his possession the proceeds of crime.
[13] On May 30, 2001, the Minister of Justice issued the Authority to Proceed to the Attorney General of Canada to seek an order for committing the appellant for extradition. It identified the following Canadian offences corresponding to the conduct in respect of which extradition was sought:
• conspiracy to possess a controlled substance for the purpose of trafficking i : e 3, 4 methylenedioxymethamphetamine (MDMA – ecstacy) included in Schedule III of the Controlled Drugs and Substances Act contrary to s. 465(1)(c) Criminal Code of Canada and ss. 5(2) of the Controlled Drugs and Substances Act.
• conspiracy to traffic a controlled substance included in Schedule III of the Controlled Drugs and Substances Act, i : e 3, 4 methylenedioxymethamphetamine (MDMA – ecstacy) contrary to s. 465(1)(c) of the Criminal Code and to the Controlled Drugs and Substances Act.
• possession for the purpose of trafficking of a controlled substance i : e 3, 4 methylenedioxymethamphetamine (MDMA – ecstacy) contrary to s. 5(2) of the Controlled Drugs and Substances Act.
• trafficking of i : e 3, 4 methylenedioxymethamphetamine
(MDMA – ecstacy) contrary to s. 5(1) of the Controlled Drugs and Substances Act.
[14] After a hearing at which the appellant participated fully, Sachs J. issued an order on December 18, 2002, committing the appellant into the custody of the United States for the offences set out in the Authority to Proceed.
[15] On May 8, 2003, counsel for the appellant filed a twenty-one page submission with the Minister of Justice urging him to decline to surrender the appellant, but rather to prosecute him domestically, possibly together with the domestic prosecution already under way. The appellant submitted that, in the circumstances, prosecution in Canada would be equally effective and his surrender would be an unjustified infringement of his rights under s. 6(1) of the Canadian Charter of Rights and Freedoms.
[16] At the same time, the appellant requested the Minister to disclose certain additional information that he asserted to be necessary to permit him to make complete submissions supporting his position. The request focused on the charges against Mr. Antwi, their resolution, and Mr. Antwi’s current custodial status. Later, the appellant also requested disclosure of the Cotroni analysis made by the Attorney General’s agent. This analysis explained why a foreign prosecution for conspiracy to distribute MDMA in the United States should be preferred to domestic prosecution even though the appellant should be prosecuted domestically for trafficking in 10,000 units of MDMA.
[17] The Minister responded to the appellant on October 27, 2003. He declined to provide further disclosure, noting that the appellant was provided with a summary of the factual information received by the Minister and was given the opportunity to comment on it. The Minister concluded that the appellant had been provided with the disclosure required by Canadian law.
[18] The Minister’s letter also outlined his conclusion that surrendering the appellant would not violate his Charter rights, nor be inconsistent with the Extradition Act, S.C. 1999, c. 18 or the Treaty. The Minister states he signed the order that the appellant be surrendered to the United States on the offence of conspiracy to distribute MDMA in the United States. He concluded the letter stating that pursuant to s. 64(1) of the Extradition Act he was not prepared to vary the requirement that the surrender not take place until the appellant has been discharged on his Canadian charges by acquittal, expiry of sentence, or otherwise.
THE APPEAL OF THE COMMITTAL ORDER
[19] The appellant argues that the Authority to Proceed does not describe the conspiracies with sufficient particularity to inform him of the case he had to meet and therefore the resulting committal order must be set aside.
[20] We did not find it necessary to call on the respondent to answer this argument. The facts set out in the record of the case are not complicated. They describe a conspiracy to possess MDMA and to distribute it in Florida. This is not a case where the facts could be said to give rise to a number of possible conspiracies so that the person sought for extradition would be left in a state of uncertainty concerning the case to be met if the Minister did not particularize the conspiracy alleged. Here the appellant could not reasonably have had any doubt about the conspiracy being alleged against him.
[21] The appeal from the committal order is therefore dismissed.
THE JUDICIAL REVIEW OF THE SURRENDER ORDER
[22] The appellant’s first argument invokes Art. 3(2) of the Treaty which provides:
When the offense for which extradition is requested was committed outside the territory of the requesting State, the executive or other appropriate authority of the requested State shall grant extradition if the laws of the requested State provide for jurisdiction over such an offense committed in similar circumstances. If the laws in the requested State do not so provide, the executive authority in the requested State may, in its discretion, grant extradition.
[23] The appellant argues that the Minister erred in law in concluding that his discretion was not engaged under Art. 3(2). The Minister held that if the factual situation was reversed (and the appellant had supplied the drugs to Mr. Antwi in Florida for distribution in Canada) Canada would assert jurisdiction over the offence because there is the real and substantial link with this country required by R. v. Libman, 1985 51 (SCC), [1985] 2 S.C.R. 178 at 213.
[24] I agree with the Minister’s conclusion. If the facts in this case were reversed, there would clearly be real and substantial links between the offence and Canada. The appellant would have supplied a large quantity of MDMA to Mr. Antwi in Florida, knowing that it would be taken to Canada and distributed there. The object of the conspiracy would be to produce harm in Canada. The effects of the conspiracy would be felt here through the distribution of the drugs here in furtherance of that conspiracy. These connections would be ample to provide Canada with jurisdiction to try the offence.
[25] Second, the appellant says that the Minister denied him the disclosure he requested and thereby breached the duty of fairness that the Minister owed to the appellant.
[26] I disagree. Among other things, the appellant had available to him the Record of the Case in support of the extradition request and a memorandum to the Minister from senior counsel outlining the factual information presented to the Minister. These were sufficient to permit the appellant to make detailed submissions to the Minister about the applicability of the principles in United States of America v. Cotroni, 1989 106 (SCC), [1989] 1 S.C.R. 1469.
[27] The appellant sought additional disclosure to explain why the agent of the Attorney General of Canada decided that prosecution both in the United States and in Canada was warranted. However, prosecutorial discretion with respect to the appropriateness of domestic prosecution attracts a high degree of deference on judicial review. See United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532 at para. 93. As the Minister’s reply to the appellant makes clear, the appellant is sought for extradition with respect to conduct that pre-dates the conduct giving rise to the Canadian charges. Moreover, there is no suggestion of impropriety or bias on the part of the prosecutorial authorities, nor is there anything to suggest that the Minister failed to consider the Cotroni factors when he made his surrender order.
[28] In these circumstances, the further information requested does not bear on issues of sufficient relevance to the surrender decision (including the appellant’s Charter rights) that the Minister must make the disclosure sought.
[29] Third, the appellant argues that the Minister failed to give adequate reasons for his decision to surrender the appellant while at the same time authorizing his domestic prosecution.
[30] Again, I disagree. There is no doubt that the appellant is entitled to reasons for the decision to surrender which are responsive to the factors relevant to his situation. This court has said so clearly in United States of America v. Johnson (2002), 2002 19980 (ON CA), 62 O.R. (3d) 327 (C.A.). However, the explanation for the course chosen by the Minister is quite straightforward and was set out in his reply to the appellant on October 27, 2003. The appellant’s conduct for which extradition is sought occurred in a defined time frame that pre-dates the conduct for which he is charged domestically. The Minister considered that the earlier conduct would be more effectively prosecuted in the United States. The later conduct occurred entirely in Canada and, although it was uncovered as a result of the same criminal investigation, it has only the most minimal linkage with the United States. In my view, the Minister’s reasons are not deficient. Moreover, his surrender decision is reasonable in the circumstances.
[31] The appellant’s final attack on the Minister’s surrender decision is based on the fresh evidence that was filed in this court by way of an agreed statement of fact. It indicates that Mr. Antwi lived in Mississauga, Ontario, prior to his arrest in Florida. He was sentenced on January 3, 2002, in Florida to seventy-one months incarceration and two years supervised release and was deported to Canada on July 22, 2003, as part of a Canada-United States prisoner exchange. On being returned to Canada, he continued to serve his sentence at a federal prison until his release on parole on September 2, 2003. Currently, he resides in Toronto.
[32] Counsel for the respondent candidly acknowledged that when the Minister made his surrender order he was unaware that Mr. Antwi had returned to Canada and was now on parole and residing in Toronto. The appellant argues that these facts are relevant to the Cotroni analysis and because they have not been considered by the Minister, his surrender decision should be set aside and the matter remitted to him for reconsideration in light of these new facts.
[33] In deciding whether to order the appellant’s surrender, the Minister’s assessment of whether prosecution would be equally effective in Canada is simply one factor, although no doubt an important one to be considered in the exercise of his broad discretion. As I have said, the assessment of the relative effectiveness of domestic prosecution attracts a high degree of deference on judicial review.
[34] It is clear that the location of the evidence is a relevant factor in that assessment. (See Cotroni, supra, at 1488, 1494.) Moreover, despite the significant deference accorded to the Minister’s weighing of the various Cotroni factors, his failure to consider a relevant factor may be grounds for review. (See Kwok, supra, at para. 108.)
[35] However the appellant’s argument raises a jurisdictional issue. Section 57(7) of the Extradition Act provides the grounds upon which this court may grant relief on judicial review of the Minister’s surrender decision. This court may grant relief on any of the grounds on which the Federal Court may grant relief under subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7. These grounds appear to require a showing that the Minister made a reviewable error when he made his surrender decision. They do not appear to encompass a change in relevant circumstances that came to the Minister’s attention after that decision was made. The Crown argues that at the time he made the surrender decision the Minister could not be said to have failed to consider any relevant Cotroni factor. Given the disposition I propose, it is not necessary to finally decide this issue.
[36] There is no doubt that the location of Mr. Antwi is an important factor in the Cotroni analysis. He will be the central witness in the proposed American proceedings. The fact that he is now known to be on parole in Canada could make an important difference in that analysis. Thus, while not every change in relevant circumstances will warrant an adjournment of an application for judicial review to permit the appellant to ask the Minister to reconsider his surrender order on the basis of new facts, in my view, the appropriate course in this appeal is an adjournment for that purpose. The Minister’s authority to reconsider, and if persuaded, to amend his surrender order, is described in Adam v. United States of America (2003), 2003 31874 (ON CA), 64 O.R. (3d) 268 (Ont. C.A.), as is this court’s jurisdiction to judicially review the Minister’s response to a request to amend.
[37] In addition to the potential importance of the new facts, there is a simple practical reason for proceeding in this way. If we were to find that these new facts could not be considered because they arose after the surrender order, the appellant could presumably seek reconsideration from the Minister and commence a fresh judicial review application of the Minister’s response. Given these circumstances, it is simply more efficient to address this issue as part of the existing judicial review proceeding.
[38] To accomplish this expeditiously, the appellant will have thirty days to request the Minister to amend his surrender order in light of the new facts. The appellant is to advise this court that the request has been made. If the appellant decides not to make such a request, the judicial review application will be dismissed as all his other arguments have failed. If he does make the request, the appellant may file the Minister’s response when it is received and may seek directions from me as to whether further submissions will be made to the panel in light of the response and if so the form of those submissions.
[39] In summary, therefore, the appeal from the committal order is dismissed and the application for judicial review is adjourned in accordance with these reasons.
Released: January 28, 2005 “MR”
“S.T. Goudge J.A.”
“I agree M. Rosenberg J.A.”
“I agree S. Borins J.A.”