DATE: 20060616
DOCKET: C43417
COURT OF APPEAL FOR ONTARIO
LABROSSE, LASKIN AND ARMSTRONG JJ.A.
B E T W E E N :
UNITED STATES OF AMERICA AND THE MINISTER OF JUSTICE
Croft Michaelson for the respondent
Respondents
- and -
WAYNE BUDD
Brendan van Niejenhuis and Scott C. Hutchison for the appellant
Appellant
Heard: June 7, 2006
On appeal from the judgement of Justice Robert C. Maranger of the Superior Court of Justice, dated April 27, 2005 made at Ottawa, Ontario
By the Court:
INTRODUCTION
[1] The appellant appeals the decision of Maranger J. to commit him for extradition to the United Stated of America (the “USA”). The appellant also seeks judicial review of the surrender decision of the Minister of Justice (the “Minister”). For the following reasons, we would dismiss the appeal and the application for judicial review.
[2] The appellant is wanted by the USA to face criminal charges arising from his involvement, beginning around 1992, in a large-scale lottery fraud scheme perpetrated on thousands of people in the USA through mass mailings of promotional material and solicitations by telephone. In both cases, the people were induced by false and misleading representations to make payments to an organization (the “Moss” organization).
[3] The Amended Record of the case in support of the extradition was entered into evidence at the extradition hearing, without objection. Parts of the Amended Record of the Case had been obtained and sent to the USA, pursuant to a request for assistance and orders made under the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, C. 30 (4th Supp.). The nature of the fraud was established primarily through documents and business records, statements from victims, and the evidence of several high-ranking members of the organization. The evidence revealed, among other things, that the appellant was an officer or director of, or had a controlling interest in numerous corporations implicated in the alleged fraudulent activity.
THE APPEAL AGAINST COMMITTAL
[4] The extradition judge found that the requirement of double criminality was met and ordered that the appellant be committed for extradition. The Minister ordered that the appellant be surrendered to the USA to answer the charges against him.
[5] On his appeal against committal, the appellant raised the following grounds:
Under s. 29(4) of the Extradition Act, S.C. 1999, c. 18 (the “Act”), the appellant cannot be extradited for alleged conduct that was not prohibited in Canada when committed;
If s. 29(4) properly interpreted compels a different conclusion, the section should be struck down as a violation of the Canadian Charter of Rights and Freedoms (the “Charter”);
The extradition judge should not have admitted the evidence from business records gathered in Canada as summarized in the Amended Record of the Case filed by the USA in support of the extradition, as it did not comply with the strict, technical requirements of the Act; and
The evidence relied upon by the USA was insufficient to warrant his committal for extradition.
RELEVANT PROVISIONS OF THE ACT
Section 6:
Subject to a relevant extradition agreement, extradition may be granted under this Act whether the conduct or conviction in respect of which the extradition is requested occurred before or after this Act or the relevant extradition agreement or specific agreement came into force.
Section 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; and
(b) in the case of a person sought for the imposition or enforcement of a sentence, the judge is satisfied that the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed and that the person is the person who was convicted.
Section 29(4):
(4) The date of the authority to proceed is the relevant date for the purposes of subsection (1).
Section 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);
(b) the contents of the documents that are submitted in conformity with the terms of an extradition agreement; and
(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.
Section 32(2)
Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.
Section 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; and
(b) in the case of a person sought for the imposition or enforcement of a sentence,
(i) a copy of the document that records the conviction of the person, and
(ii) a document describing the conduct for which the person was convicted.
ISSUES
Issue 1. Section 29(4)
[6] In his factum, the appellant argues that the Authority to Proceed was invalid because the alleged conduct said to have taken place in the USA predated the 2002 amendments to the Canadian Criminal Code corresponding to the appellant’s conduct. He argues that double criminality under the Act should be assessed as of the date the alleged criminal conduct took place.
[7] In oral argument, the appellant’s counsel argued instead that s. 29(4), which became law in 1999, was only intended to apply to conduct that took place after the enactment of the statute. He contended that s. 29(4) is a substantive, not a procedural provision, and that citizens are entitled to notice that their conduct may be extraditable. Both arguments fail.
[8] Section 29 of the Act is clear and unambiguous. Under s. 29(1)(a), the extradition judge determines whether there is admissible evidence of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence or offences set out in the Authority to Proceed. Subsection (4) provides that the date of the Authority to Proceed is the relevant date for the purpose of subsection (1). Unlike the former Act, the assessment of double criminality is therefore made at the date of the Authority to Proceed, not the date when the alleged conduct occurred, even if that conduct pre-dated the enactment of the new Extradition Act. In the present case the appellant’s alleged conduct was criminal at the time the Authority to Proceed was issued.
[9] This interpretation of s. 29(4) had been adopted by other courts: see Ebke v. Federal Republic of Germany et al. (2003), 2003 NWTCA 1, 173 C.C.C. (3d) 261 (N.W.T.C.A.); Canada (Ministre de la Justice) c. Désilets, [2005] J.Q. No. 1515 (C.A.); The United States of America v. Reda, [2004] Q.J. No. 9554 (Sup. Ct.); and United States of America v. Quintin, 2000 22657 (ON SC), [2000] O.J. No. 791 (Sup. Ct.)/.
[10] If there can be any doubt about this interpretation, it is quickly dispelled by the wording of s. 6 which clearly provides that extradition may be granted whether the conduct occurred before or after the Act came into force. The Act, including s. 29, was clearly intended to apply to conduct that pre-dated the coming into force of the new statute.
[11] It must be remembered that the Act is concerned with extradition from Canada and not prosecution in Canada. The appellant’s surrender to the USA under the Act cannot be said to operate retroactively. The Act was in force when the request was received and his surrender ordered.
[12] In any event, from a practical point of view, the appellant was liable for extradition under the former Act. Fraud, conspiracy to commit fraud and money laundering were all offences under Canadian law at the time the appellant is alleged to have committed the offences in the USA. The appellant would have been liable to be extradited under the former Act.
[13] We would not give effect to this ground of appeal.
Issue 2. The Charter argument
[14] In his factum, the appellant submits that sections 6 and 7 of the Charter do not permit the retroactive application of s. 29(4) to the period prior to the passage of the Act. This argument was not pursued during oral argument.
[15] No notice of constitutional question was filed in the court below. Since the issue was not properly raised and considered in the court below, it should not, generally speaking, be entertained for the first time on appeal. Constitutional challenges should not be determined in an evidentiary vacuum, particularly when legislative facts are required to properly consider the issue: see, for example, R. v. Sweeney (2000), 2000 16878 (ON CA), 148 C.C.C. (3d) 247 (Ont. C.A.).
[16] No reason has been advanced as to why, in this case, the appellant should be permitted to raise this issue for the first time on appeal. In any event, we see no merit in this argument on the basis of the written submissions. Section 29(4) of the Act does not violate any provision of the Charter. It does not contravene the Charter to extradite a person to a foreign state for a criminal trial, when the alleged conduct is an offence under Canadian law at the time the extradition request is received.
Issue 3. The summary of evidence from records gathered in Canada
[17] The USA relied, in part, on a summary of records that had been gathered in Canada. In our view, the summary of this evidence was admissible, as mandated in s. 33 (1): see United States of America v. McDowell (2004), 2004 36125 (ON CA), 183 C.C.C. (3d) 149 (Ont. C.A.). The extradition judge noted that there is no basis to believe that any of the evidence relied on had been obtained unlawfully or improperly. He was correct in concluding that the summary of the evidence relating to the business records was properly admissible under s. 32 of the Act as long as it complied substantively with Canadian law.
[18] As stated in Re McVey, 1992 48 (SCC), [1992] 3 S.C.R. 475 at para. 106, “the fine or nice distinctions of criminal law are out of place in the law of extradition.”
[19] To hold otherwise, on this issue in this case, would frustrate the extradition process.
Issue 4. The sufficiency of the evidence
[20] The test for determining the sufficiency of the evidence for extradition is the same as at a preliminary inquiry: is there some evidence upon which a properly instructed jury, acting reasonably, could return a verdict of guilty? See U.S.A. v. Sheppard (1976), 1976 8 (SCC), 30 C.C.C. (2d) 424 (S.C.C.).
[21] There is no issue that the Moss organization was a criminal organization. The Amended Record of the case included evidence that:
• the appellant was a director or officer of a significant number of companies involved in the fraud;
• the appellant admitted he set up the companies in his name at the request of Moss;
• millions of dollars derived from the fraud flowed to and from those companies;
• the telephone lines used in the fraud were paid by one company associated with the appellant;
• the appellant discussed the telemarketing operation of one company with another individual involved in the fraud; and
• the appellant gave final approval before any financial decisions could be made in respect of the telemarketing of one company.
[22] Taken individually, these pieces of evidence may not amount to much. However, taken in their totality, the circumstantial evidence of the role of the appellant is sufficient to justify committal for extradition on the offences described in the Authority to Proceed.
The Appeal of the Minister’s decision
[23] In his factum, the appellant also attacks the Minister’s surrender decision and contends that the Minister erred in the following ways:
(a) he stated that the appellant could resist the admission of any evidence wrongfully obtained against him in Canada at his criminal trial in the USA;
(b) he found that the USA had not resiled from the evidence summarized in the Record of the Case; and
(c) the attempt to extradite the appellant is the continuation of a pattern of abusive behaviour and it would be oppressive and unjust to surrender him.
[24] In oral argument, counsel argued only the alleged errors in (a) and (c). We found no merit in these arguments and did not require the Minister to respond.
[25] At the outset, it must be remembered that the Minister’s decision to order surrender attracts a high standard of judicial review: see Canada v. Schmidt, 1987 48 (SCC), [1987] 1 S.C.R. 500.
[26] With respect to the first argument, it must be presumed that the appellant will receive a fair trial in the foreign state. There is also a finding by the extradition judge that there is no basis to believe that any of the evidence summarized and relied upon by the USA was gathered improperly in Canada.
[27] As to the second argument, the appellant relies on a previous investigation by the USA (the Powelson investigation) that involved the appellant and that was eventually abandoned. After the USA abandoned the investigation, the appellant brought an application for various types of relief based on the impropriety of Canadian and American authorities. The application judge ruled against the appellant. In our view, on the record before us, the previous investigation bears no connection to the present case.
[28] The Minister’s decision to surrender the appellant is reasonable and ought not to be disturbed. The appellant has failed to establish that it would be oppressive or unjust to surrender him to the USA.
[29] Accordingly, the appeal and the application for judicial review are both dismissed.
RELEASED: June 16, 2006
“J.M.L.”
Signed: “J.M. Labrosse J.A.”
“J.I. Laskin J.A.”
“R.P. Armstrong J.A.”