DATE: 20060426
DOCKET: C43004
COURT OF APPEAL FOR ONTARIO
DOHERTY, SHARPE and JURIANSZ JJ.A.
B E T W E E N :
THE MINISTER OF JUSTICE AND ATTORNEY GENERAL OF CANADA and THE UNITED STATES OF AMERICA
Mark J. Sandler and John Norris for the applicant
Respondents
- and -
JOHN KAVARATZIS
Bradley Reitz for the Minister of Justice
Applicant
Heard: January 11, 2006
On judicial review under s. 57 of the Extradition Act from the surrender order of the Minister of Justice dated January 24, 2005.
DOHERTY J.A.:
I
[1] The Minister of Justice (the "Minister") has directed John Kavaratzis (the "applicant") surrendered to American authorities for prosecution on charges of conspiracy to distribute and possess cocaine contrary to federal drug laws. The applicant applies for judicial review of that surrender order. Counsel advances three arguments:
- the Minister should have refused surrender on the ground that the requesting state's claim of jurisdiction over the applicant was not well-founded;
- the Minister should have refused to surrender the applicant because his surrender constituted a violation of his constitutional right to remain in Canada as guaranteed by s. 6(1) of the Charter; and
- the surrender order should be quashed because the applicant was not afforded procedural fairness in the process culminating in the Minister's decision to surrender the applicant.
[2] I would dismiss the application for judicial review.
II
CHRONOLOGY
[3] By a diplomatic note dated March 9, 2000, the United States requested the extradition of the applicant, a Canadian citizen residing in Toronto. Extradition was sought for the purpose of prosecuting the applicant on federal narcotics offences, specifically conspiracy to distribute cocaine. The applicant had been indicted on that charge in the United States in November 1999.
[4] On April 5, 2000, the Minister authorized extradition proceedings against the applicant, listing the Canadian corresponding offences as conspiracy to traffic in cocaine and conspiracy to possess cocaine for the purpose of trafficking. The extradition hearing proceeded in September 2002. On October 11, 2002, Hawkins J. discharged the applicant, concluding that there was no evidence that the applicant conspired in the United States with others to traffic in cocaine. The Minister appealed and in January 2004 this court allowed the appeal (2004 18251 (ON CA), 182 C.C.C. (3d) 176), set aside the discharge order, and directed that the applicant be committed for extradition. An application for leave to appeal to the Supreme Court of Canada from this court's order was dismissed in June 2004.
[5] In January 2005, after considering submissions made on behalf of the applicant, the Minister ordered the applicant surrendered to the United States. The applicant then commenced these proceedings. He is on bail.
III
THE FACTS
[6] It is alleged that the applicant was a member of a drug conspiracy headed by a man named Nester Fonseca. According to the material provided by the American authorities, Fonseca withdrew large amounts of Canadian currency from Canadian banks in Toronto, arranged to have that currency converted to American currency and provided it to other members of the conspiracy to purchase cocaine in southern Florida. Those co-conspirators brought the cocaine through the United States back to Fonseca in Toronto who arranged for its distribution by others, including the applicant. The material referred to several meetings between the applicant, Fonseca and other alleged conspirators in Toronto between February 1998 and June 1998. On four occasions Fonseca provided the applicant with large amounts of cocaine for sale. In total, the applicant received about thirteen to fifteen kilograms of cocaine. He paid Fonseca $33,000 per kilogram.
[7] There was no evidence that the applicant did anything in the United States in connection with the drug trafficking scheme, or that he had any authority over anything done in connection with that scheme in the United States.
IV
THE ARGUMENTS
Should the Minister have declined to extradite on the basis that the American jurisdictional claim was not well-founded?
[8] Counsel for the applicant submits that, unlike the extradition judge, the Minister had the responsibility to monitor the extradition request to ensure that the American authorities were not exceeding their jurisdictional grasp in seeking the applicant's extradition. Counsel further argues that this court can review the Minister's decision that the American assertion of jurisdiction over the applicant was proper because the decision rests on a misapprehension of the facts and a misunderstanding of the Canadian law made applicable by Article 3(2) of the Treaty on Extradition between the Government of Canada and the Government of the United States of America, Can. T.S. 1976 No. 3, as am. by Can. T.S. 1991 No. 37 (the "Treaty"). Counsel argues that the Minister mistakenly viewed the American allegations as alleging an international drug conspiracy when in fact the allegation alleged only a conspiracy to distribute narcotics in the United States. Counsel also submits that the Minister was wrong in law when he indicated that a Canadian court would take jurisdiction over a person charged with conspiracy to traffic in narcotics in Canada, even if that person had no connection to Canada and did nothing in Canada to advance the alleged conspiracy.
[9] The Minister has a responsibility to monitor requests for extradition to ensure compliance with the Extradition Act, S.C. 1999, c. 18 (the "Act"), and any applicable extradition treaty: United States of America v. Lapine (1994), 1994 116 (SCC), 87 C.C.C. (3d) 385 at 391-92 (S.C.C.). The Act and applicable treaties impose pre-conditions and limitations on the Minister's exercise of his surrender powers. The Minister must monitor requests for extradition to ensure that those pre-conditions and limitations are honoured by him when exercising the surrender power. If, as with Article 3(2) of the Treaty, the situs of the alleged offence can impact on the Minister's surrender powers, the Minister must take account of the situs of the offence in exercising his or her surrender powers.
[10] The Minister's responsibility to monitor compliance with the Treaty and the Act cannot be equated with a freestanding duty to determine whether the requesting state's assertion of jurisdiction over the offence is well founded. Re McVey (1992), 1992 48 (SCC), 77 C.C.C. (3d) 1 (S.C.C.) makes it clear that the determination of jurisdiction of the foreign court is a matter first for the foreign authorities and ultimately for the foreign court. The Minister is entitled to rely on the validity of the assertion of jurisdiction made by the requesting state. That is not to say that the jurisdiction of the foreign court can never be challenged in the surrender phase of the extradition process. An individual whose extradition is sought could demonstrate that the assertion of jurisdiction by the requesting state is so clearly baseless under the law of the requesting state, or so clearly antithetical to Canadian notions of jurisdiction, that the Minister would be entitled to refuse to surrender the subject of the extradition request.
[11] That is not this case. Nothing was placed before the Minister to suggest that under American law the American Federal Court would not have jurisdiction over the offence. In fact, the material placed before the Minister offered implicit support for the jurisdiction of the American court over the conspiracy alleged in the extradition request. That material reveals that several of the co-conspirators have pled guilty in Federal Court in the United States and received significant jail sentences.
[12] Article 3(2) of the Treaty does require that the Minister consider the locus of the offence alleged by the requesting state. It 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.
[13] Article 3(2) assumes that the offence for which extradition is sought was committed outside of the United States. Article 3(2) provides that if Canadian courts would take jurisdiction over the offence "in similar circumstances" the extraterritorial situs of the offence places no limitation on the Minister's power to surrender. If, however, Canada would not take jurisdiction over the offence then the Minister has a discretion to refuse extradition because of the extraterritorial nature of the offence.[^1]
[14] The applicant submitted that, as he had had no involvement in the American component of the scheme, the Minister should view the offence for which the applicant's extradition was sought as having occurred entirely outside of the territory of the United States, thereby triggering a consideration of Article 3(2) of the Treaty. The Minister accepted this argument but went on to conclude:
In my view, Canada would have jurisdiction over an offence committed in similar circumstances and thus article 3(2) of the treaty mandates surrender, subject, of course, to other relevant considerations.
[15] In explaining his conclusion the Minister made three observations. First, he noted that the material provided by the United States alleged that the applicant was a member of "a general conspiracy which had as its object the obtaining of drugs in the United States of America and their transportation across the Canadian border for sale here." Second, the Minister observed that under Canadian law a Canadian court would take jurisdiction over an allegation of conspiracy to traffic in narcotics in Canada if the agreement was made in Canada, or if any overt act in furtherance of the agreement took place in Canada. Third, the Minister considered the "substantial connection" test for jurisdiction over criminal offences developed in R. v. Libman (1985), 1985 51 (SCC), 21 C.C.C. (3d) 206 (S.C.C.). He concluded that the "substantial connection" test would give a Canadian court jurisdiction over the conspiracy alleged in the extradition request in "similar circumstances".
[16] I see no error in the Minister's analysis. He did not misapprehend any material fact. The United States did allege that the applicant was a party to a transnational conspiracy involving the illicit purchase, transportation, and sale of drugs in the United States and Canada. I attach no significance to the fact that the allegation is one of a conspiracy to distribute cocaine in the United States rather than one of conspiracy to import or export and distribute cocaine. An agreement that involves the purchase, transportation, and sale of cocaine in more than one country is an international drug conspiracy, even if it is prosecuted as a conspiracy to distribute simpliciter.
[17] The applicant's submissions confuse the question of proof with the question of jurisdiction. It may be that the American authorities will in the end fail to prove that the applicant was a party to the "general conspiracy" alleged. Jurisdiction over the offence does not, however, turn on whether the prosecution will eventually be able to prove that an individual accused was a party to that offence. Jurisdiction over the offence must be determined at the outset and must look to the allegations made by the prosecution. The Minister correctly characterized the nature of the allegations made by the American authority.
[18] I agree with the Minister's conclusion that a Canadian court would assume jurisdiction in "similar circumstances". The American allegation is one of conspiracy to distribute cocaine contrary to American federal drug laws. It alleges that the agreement was initially made in Canada and that overt acts in furtherance of the conspiracy were committed by some of the conspirators in the United States, but not by the applicant. If Canadian prosecutorial authorities alleged a conspiracy to violate Canadian drug laws initially entered into in the United States involving overt acts committed by some of the conspirators in Canada, a Canadian court would have jurisdiction over the conspiracy charge: see R. v. Connolly and McGreevy (1894), 1894 106 (ON CA), 1 C.C.C. 468 at 505 (Ont. H.C.); see also Matthew R. Goode, Criminal Conspiracy in Canada (Toronto: Carswell, 1975) c. 4; United States v. Downing (1931), 51 F.2d 1030 at 1031 (2d. Cir.); D.P.P. v. Doot, [1973] A.C. 807 (H.L.), Viscount Dilhorne at 823, Lord Pearson at 835.[^2] These cases demonstrate that the Canadian court would have jurisdiction over the offence even if not all of the alleged co-conspirators had acted within Canada. Jurisdiction over an accused is distinct from jurisdiction over an offence. Jurisdiction over an accused is irrelevant to the operation of Article 3(2) of the Treaty.[^3]
[19] The Minister's reference to Libman, supra, confirms that in his view the general approach to jurisdiction over criminal offences developed in Libman yields the same result as do the cases that have specifically addressed jurisdiction over conspiracy allegations. I think this assessment is correct. If an alleged conspiracy had as its object the violation of Canadian drug laws, and if overt acts in furtherance of that purpose were committed in Canada, there would clearly be a "substantial connection" between Canada and the alleged conspiracy sufficient to found jurisdiction over the offence.
[20] The Minister committed no error in his appreciation or application of Article 3(2) of the Treaty.
Did the surrender violate s. 6(1) of the Charter?
[21] The applicant is a Canadian citizen. Section 6(1) of the Charter gives him a constitutional right to remain in Canada. That right is subject to reasonable limits, including extradition as governed by the Act and applicable treaties. In exercising the surrender discretion under the Act the Minister must take into account the applicant's constitutional right to remain in Canada. This consideration becomes particularly significant where the conduct of the applicant that gives rise to the request for extradition is also conduct that could be prosecuted in Canada: see United States of America v. Cotroni (1989), 1989 106 (SCC), 48 C.C.C. (3d) 193 at 225 (S.C.C.).
[22] The Minister acknowledged that the applicant could be prosecuted for drug trafficking in Canada and, therefore, directed his mind to the factors set out in Article 17 bis of the Treaty. That article refers to various factors that must be considered by the Minister in exercising his discretion to surrender an individual if that individual could be prosecuted in either Canada or the United States. These factors largely replicate those referred to in Cotroni, supra.
[23] Counsel for the applicant submitted that a weighing of the relevant factors so clearly favoured prosecution of the applicant in Canada over prosecution in the United States that the Minister's decision to surrender the applicant was unreasonable and resulted in an infringement of the applicant's constitutional right to remain in Canada. In making that argument, counsel began with the assertion that the applicant did not commit any crime against American law. As he puts it in his factum:
The only offences he [the applicant] committed were offences against Canadian law.
[24] If one begins with the premise that the applicant committed no crime against American law, the decision to surrender the applicant to the US authorities must violate his rights under s. 6(1). The Minister could not proceed from that premise. To the contrary, the requesting state asserted that the applicant had committed a serious offence against American federal drug laws. The Minister proceeded on the basis that the requesting state had made the allegation in good faith and, therefore, had a valid interest in the prosecution of the applicant. He was entitled to do so. The reasonableness of the Minister's decision to surrender the applicant cannot be meaningfully assessed if one begins from the premise that the applicant committed no crime against American laws.
[25] Similarly, the applicant's contention that the Minister's decision to order him surrendered was unreasonable because "the impact of his [the applicant's] offences was felt only in Canada" assumes that the applicant was not a party to the conspiracy which involved the purchase and transportation of cocaine in the United States. In determining where the negative impact of the alleged criminal conduct was felt, the Minister had to look to the allegations made by the United States and not to the applicant's description of the scope of the conspiracy that was alleged against him.
[26] The Minister's decision to surrender the applicant involved an exercise of his discretion. Some of the relevant factors may have favoured prosecution in Canada and other may have favoured prosecution in the United States. In the end it was for the Minister to weigh those competing factors. I can find no error in the Minister's applications of the relevant principles and cannot characterize the exercise of his discretion as unreasonable. The application has not demonstrated any basis upon which this court should interfere with the Minister's determination that extradition would not violate the applicant's rights under s. 6(1) of the Charter: see United States of America v. Whitley (1994), 1994 498 (ON CA), 94 C.C.C. (3d) 99 at 108-110 (Ont. C.A.), aff'd (1996), 1996 225 (SCC), 104 C.C.C. (3d) 447 (S.C.C.).
Was the applicant denied procedural fairness?
[27] The applicant contends that he was not given adequate disclosure to permit him to fully present his case against surrender. He also contends that the reasons of the Minister are inadequate. Before I address the specific claims it is helpful to summarize the surrender phase of these proceedings. That phase occupied about nine months.
[28] By letter dated May 28, 2004, counsel for the applicant made extensive submissions to the Minister arguing that the applicant should not be surrendered to the United States. The primary argument advanced by counsel was that the American courts had no jurisdiction to prosecute the applicant. Counsel also requested full disclosure, subject to any privilege claim, of all material placed before the Minister for his consideration when deciding whether to surrender the applicant.
[29] In October 2004, Justice Department lawyers provided the Minister with a supplementary memorandum outlining two additional developments in the applicant's case. First, the Minister was told that individuals who had been convicted in the United States were co-operating with the authorities. These individuals were prepared to testify that the applicant was aware the cocaine he was selling was being smuggled into Canada from the United States. According to these individuals the applicant had been involved in discussions about the smuggling of cocaine into Canada. Second, the Minister was given an updated report on the status of the proceedings in the United States against the other co-conspirators. Six had pleaded guilty to the charge in US Federal Court and received jail sentences of varying lengths.
[30] Counsel for the applicant was provided with a copy of the supplementary material that had been given to the Minister and was invited to make further submissions on the question of surrender. He did so in late November 2004. Counsel argued that the new information from the co-conspirators was so inherently unreliable that it should not be considered by the Minister. In the alternative, counsel requested disclosure from the Minister "of all such information". Finally, counsel argued that, as at least one of the co-conspirators had been returned to Canada to serve his jail sentence, the Minister should direct a second "Cotroni" assessment in that their location of potential witnesses was a significant factor in that assessment.
[31] The Minister was told of counsel for the applicant's additional submissions by way of a memo dated December 2, 2004. In that memo, the Minister was advised that two of the co-conspirators had been returned to Canada to serve their sentences. He was further advised that, as requested by counsel for the applicant, a second "Cotroni" assessment had been made in the light of the return of two of the co-conspirators to Canada. That second assessment confirmed the earlier opinion of counsel that the United States was the appropriate forum in which to try the applicant.
[32] In January 2005, the Minister ordered the applicant surrendered to the United States.
[33] The Minister owed a duty of fairness to the applicant at the surrender phase of the extradition process. The contours of that duty are shaped by the function being performed by the Minister. As my colleague, Laskin J.A., observed in United States of America v. Whitely, supra, at 113:
The Minister's surrender decision is political in nature, not judicial. It lies at the legislative end of the spectrum of administrative decision-making.
[34] The Minister's disclosure obligations cannot be equated with the obligations placed on the prosecution in a domestic criminal case. In deciding whether to surrender the applicant, the Minister is essentially exercising a discretion which must take into account Canada's international obligations and the specifics of the particular case. The applicant is entitled to know the criteria that the Minister will apply in exercising that discretion and he is entitled to know the substance of the information upon which the Minister has based the exercise of that discretion: see United States of Mexico v. Hurley (1997), 1997 3355 (ON CA), 116 C.C.C. (3d) 414 at 427-28 (Ont. C.A.).
[35] I turn now to the applicant's specific disclosure complaints. He submits that he was entitled to the "Cotroni" assessments prepared by counsel in the Justice Department. He argues that he could not make his case against surrender without knowing exactly what was in the "Cotroni" assessments prepared by counsel. I disagree. The applicant knew the criteria that the Minister would apply in determining the question of surrender. He had the substance of all of the information that the Minister considered in making that decision. I fail to see how disclosure of counsel's assessment of how those relevant factors should be weighed was necessary in order for the applicant to make his case that on a proper "Cotroni" assessment surrender was not warranted. The surrender process is not adversarial. The Minister's position when considering whether to surrender under the Act cannot be equated with that of a judge called upon to make a decision based on the submissions of competing parties.
[36] The applicant also argues that he should have received copies of all statements made by the co-conspirators rather than simply a summary of the anticipated evidence of the co-conspirators. I agree with counsel for the respondent's submission that disclosure of the substance of the anticipated evidence provided the applicant with ample information to address the significance of that information to his surrender: United States of Mexico v. Hurley, supra, at 427. The applicant's contention that he should have received the actual statements as well as "all available information concerning the obtaining of those statements" assumes the Minister's duty of fairness imposed upon him a level of disclosure akin to that owed to an accused in a criminal trial.
[37] Lastly, the applicant argues that he was denied procedural fairness because the Minister did not specifically address the applicant's argument that the Minister should not rely on any of the information allegedly coming from the co-conspirators in the fall of 2004. It would appear that the Minister was provided with that information in response to the applicant's argument that the American court had no jurisdiction to try him on the conspiracy charge.
[38] The Minister's duty of fairness requires that he explain his decision ordering the surrender to the applicant: United States of America v. Johnson (2002), 2002 19980 (ON CA), 170 C.C.C. (3d) 538 at 548-49 (Ont. C.A.). The duty to provide reasons for the decision to surrender does not, however, mean that the Minister must address each and every argument that has been put to him in the course of the surrender phase.
[39] The Minister's reasons for surrender demonstrate that he was aware of the applicant's position that he should not consider the material concerning the statements allegedly made by the co-conspirators in the fall of 2004. Given the Minister's determination that the conspiracy occurred outside of the territory of the United States, but that a Canadian court would take jurisdiction in similar circumstances by virtue of the overt acts committed by the conspirators in Canada, the appellant's knowledge of activities in the United States would seem to have little relevance to the Minister's exercise of his discretion. Clearly, the jurisdiction of a Canadian court over a conspiracy allegation in similar circumstances would not depend on whether the co-conspirators who did not act in Canada were aware of the overt acts in furtherance of the conspiracy that did occur in Canada. The extent of the applicant's knowledge of the activities that occurred in the United States in furtherance of the conspiracy may be significant at trial, but has little, if anything to do, with the question of surrender.
[40] For the sake of completeness, I would add that I see no merit in the argument that the Minister should have disregarded the information provided by the conspirators because of its obvious unreliability. The applicant chose to base his main argument against surrender on the alleged absence of any connection between him and the activities in the United States. I think the Minister was entitled to determine what connection, if any, there was between the applicant and the activities in the United States as part of his assessment of the submissions made to him by the applicant.
V
CONCLUSION
[41] I would dismiss the application.
RELEASED: "DD" "APR 26 2006"
"Doherty J.A."
"I agree Robert J. Sharpe J.A."
"I agree R.G. Juriansz J.A."
[^1]: Section 5 of the Act also speaks to extradition for extra-territorial offences. It is not inconsistent with Article 3(2) and I need not consider the section separately.
[^2]: These same cases strongly suggest that the conspiracy alleged against the applicant occurred partly within the territory of the United States because acts in furtherance of that alleged conspiracy were committed in the United States. On this view, Article 3(2) of the Treaty is irrelevant.
[^3]: It is not surprising that the Treaty does not speak in terms of jurisdiction over the accused. The purpose of extradition is to return the individual to the jurisdiction of the requesting state. Once the individual is in that jurisdiction, jurisdiction over that individual is established.