DATE: 20060901
DOCKET: C42150
COURT OF APPEAL FOR ONTARIO
LASKIN, ARMSTRONG AND MACFARLAND JJ.A.
B E T W E E N :
THE UNITED STATES OF AMERICA AND THE HONOURABLE IRWIN COTLER, MINISTER OF JUSTICE
Kevin Wilson for the Attorney General of Canada
Respondents
- and -
TALIB STEVEN LAKE
Frank Miller, for the applicant
Applicant
Heard: February 10, 2006
On application for judicial review from the surrender order made on February 28, 2005 by the Minister of Justice.
LASKIN J.A.:
A. INTRODUCTION
[1] In September 1997, at a golf course in Windsor, the appellant Talib Lake offered to sell crack cocaine to an undercover Ontario Provincial Police officer. About a week later, Mr. Lake delivered 99.2 grams of cocaine to the officer in Detroit, Michigan. He was indicted in a United States District Court for unlawful distribution of a controlled substance. If found guilty, he faces a mandatory minimum sentence of ten years imprisonment without parole.
[2] The respondent, the United States Government, seeks Mr. Lake’s extradition. When extradition proceedings began, Mr. Lake was a Canadian citizen living in Ontario. He was, nonetheless, committed for extradition and the Minister of Justice has ordered his surrender. In this court, he seeks judicial review of the Minister’s surrender order. His counsel advances three grounds of review:
the Minister failed to give adequate reasons for holding that Mr. Lake’s surrender would not infringe s. 6 of the Charter;
the Minister failed to do a proper “Cotroni assessment” and therefore, erred in holding that Mr. Lake’s surrender would not infringe his right to remain in Canada under s. 6 of the Charter;
the United States’ minimum sentence for distributing crack cocaine is arbitrary and disproportionate, and therefore Mr. Lake’s surrender to face this sentence breaches his rights under both s. 7 of the Charter and s. 44(1)(a) of the Extradition Act.
B. BACKGROUND FACTS
a. Project Cyclone
[3] In February 1997, the OPP began an undercover investigation into drug trafficking in Essex County. The investigation was known as Project Cyclone. It lasted several months. During the course of the investigation, sixty people were arrested. One of those arrested was Mr. Lake.
[4] The OPP first became aware of Mr. Lake when his cousin told the police that Mr. Lake was his supplier. The OPP then investigated Mr. Lake’s activities and eventually charged him with several drug related offences, including conspiracy to traffic in cocaine in Windsor and Detroit between September 11 and September 22, 1997. However, Mr. Lake was not charged in Canada with the substantive offence of trafficking.
b. The trafficking offence for which Mr. Lake has been surrendered
[5] On September 18, 1997, Mr. Lake, his cousin and an undercover officer, Ralph Faiella, met on a golf course in Windsor. During the meeting Mr. Lake offered to sell Mr. Faiella crack cocaine for $1,625.00 per ounce. Mr. Faiella said that he would buy. He and Mr. Lake agreed to get in touch with each other later. The OPP then contacted the FBI about the pending purchase.
[6] Mr. Lake telephoned Mr. Faiella and told him he was prepared to sell 4 ounces of crack cocaine. He told Mr. Faiella to meet him in front of Kinko’s restaurant in Detroit at 11:00 a.m. on September 22, 1997. Mr. Faiella obtained the buy money and a body pack tape recorder from the FBI, and met Mr. Lake at the appointed time and place. Mr. Lake got into Mr. Faiella’s car and they drove to Mr. Lake’s car. Mr. Lake produced 99.2 grams of crack cocaine and Mr. Faiella gave him $6,500.00 for the drugs.
[7] Mr. Faiella returned to Windsor with the drugs and handed them over to an FBI agent who had been helping him. He also gave the agent the body pack tape recorder. The agent took the drugs and the surveillance tape back to the United States. On October 19, 1998 Mr. Lake was indicted in Michigan for distributing crack cocaine.
c. The Canadian sentencing proceedings
[8] Mr. Lake pleaded guilty to the Canadian offences for which he had been charged. As I have said, the offences included conspiracy to traffic in cocaine. That conspiracy resulted in and ended with the sale of crack cocaine to Mr. Faiella in Michigan.
[9] In the Canadian sentencing proceedings, the Crown took into account the outstanding indictment in Michigan. In the light of that indictment, Crown counsel agreed to a joint submission for a three-year sentence (in addition to 8 months pre-trial custody), a rather lenient disposition for Mr. Lake’s activities. The Crown explained his position to Ouellette J., the sentencing judge:
What Mr. Lake faces in prosecution with respect to this charge in the United States, in which the evidence is compelling, and the likelihood of him being convicted in the United States as a result of the events of September 22, 1997, are high. The crown has taken that into account with respect to looking at the entire situation. And that was a motivating factor as far as the crown was concerned with respect to this sentence which I acknowledge is on the low end of the range with respect to these types of offences…
[10] On December 2, 1998 Ouellette J. sentenced Mr. Lake to three years in the penitentiary, a sentence that he has now served.
d. The extradition proceedings
[11] On April 14, 2003 the United States asked to extradite Mr. Lake. On June 30, 2003 the Minister issued an authority to proceed for the offence of trafficking in cocaine. On May 31, 2004 Mr. Lake was committed for extradition. He does not appeal his committal order. On February 28, 2005 the Minister ordered his surrender.
C. ANALYSIS
1) Did the Minister give adequate reasons for holding that Mr. Lake’s surrender would not infringe s. 6 of the Charter
[12] The Minister held that surrendering Mr. Lake for extradition would not infringe his right as a Canadian citizen to remain in Canada, a right guaranteed by s. 6 of the Charter. Mr. Lake submits that the Minister had a duty to give adequate reasons for this holding and that he breached this duty.
[13] I agree that the Minister had a duty to give adequate reasons for his surrender order. Although a Minister’s surrender order lies at the legislative or political end of administrative decision-making, it nonetheless has serious consequences for the person subject to it. The surrender proceedings will be fair only if at the end of those proceedings, the person to be surrendered is told the reasons for the decision. Reasons are especially important when the person to be extradited claims a breach of a Charter guarantee.
[14] In U.S.A v. Johnson, 170 C.C.C. (3d) 538 at paras. 46-47 my colleague Gillese J.A. emphasized the Minister’s obligation to give adequate reasons for a surrender decision.
[46] In my view, the Minister must give reasons for his decision. The holding of L’Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 43, a case arising in the context of deportation, applies equally to the decision to surrender under the Extradition Act.
In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached [emphasis added].
[47] The decision to surrender a fugitive to an extradition party is as important as the humanitarian and compassionate determination under s. 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 (now s. 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27), dealt with in Baker. The appellant was entitled to reasons that were responsive to the factors relevant to his situation.
[15] Reasons in extradition proceedings serve the same purposes as they do in ordinary litigation. See R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. They should tell the person being extradited why the surrender order was made; and they should permit a reviewing court to determine whether the Minister applied the proper principles and fairly considered the person’s claim not to be surrendered. If the Minister’s reasons for surrender meet these twin purposes, they will be adequate.
[16] The Minister’s reasons for holding that Mr. Lake’s surrender would not breach his s. 6 Charter right were brief. But, in my view, they were adequate. The Minister said the following:
You have argued that, pursuant to Cotroni, supra, it is a “realistic option” to prosecute Mr. Lake in Canada for the offence of distribution of cocaine. With respect, I disagree. The transfer of cocaine from Mr. Lake to Cst. Faiella is alleged to have taken place in the City of Detroit. Canada has no jurisdiction to prosecute this offence. Even if some form of prosecution in Canada were possible, in the circumstances of this case, I would yield to the superior interest of the United States of America in prosecuting this matter. The evidence alleged that Mr. Lake trafficked cocaine within the boundaries of the United States of America. The United States of America is entitled to seek to protect its own public and maintain public confidence in its laws and criminal justice system through prosecution.
[17] These reasons tell Mr. Lake why he is being extradited: in the Minister’s view the United States has a superior interest in prosecuting him. The reasons also permit this court to determine whether the Minister conducted a proper “Cotroni assessment” or whether he committed a reviewable error in that assessment. I would not give effect to this ground of appeal.
2) Did the Minister fail to do a proper Cotroni assessment and therefore err in holding that Mr. Lake’s surrender would not infringe his right to remain in Canada under s. 6 of the Charter
[18] Mr. Lake claimed that extraditing him to the United States would infringe his right to remain in Canada under s. 6 of the Charter. In considering that claim, the Minister had to assess whether the desirability and effectiveness of a prosecution in Canada would justify denying the request for extradition. The Minister typically makes that assessment by considering the set of factors listed in United States of America v. Cotroni, [1989] 1 S.C.R. 1469 at para. 56.
[19] Mr. Lake submits that the Minister failed to do a proper Cotroni assessment, and as a result infringed s. 6 of the Charter. In connection with this submission, Mr. Lake argues that the Minister’s Cotroni assessment is not entitled to any deference from this court. Correctness, he argues, is the proper standard of review of a Ministerial decision affecting constitutional rights.
[20] Before dealing with Mr. Lake’s substantive submission on section 6, I will address the standard of review. A correctness standard for constitutional issues relating to a surrender order finds support in several decisions of the British Columbia Court of Appeal. The earliest decision is Canada (Minister of Justice) v. Stewart (1998), 131 C.C.C. (3d) 423 at paras. 17-18 where Donald J.A. wrote:
[17] The authorities seem clear that on the general question of surrender much deference ought to be accorded the Minister…
[18] What is less clear is whether there should be any deference given to the Minister’s disposition of Charter questions addressed for the first time a the surrender stage of the extradition process. I have concluded that deference is inappropriate and that the reviewing court should examine the Minister’s Charter decisions on the standard of correctness. While the present structure of the process makes it necessary for the Minister to determine these matters in the first instance, it should be recognized that what the Minister is really deciding is whether her executive act would violate the Charter. If deference were accorded her assessment of the constitutional validity of her own act then I believe that judicial review would be unacceptably attenuated. In my opinion, a person affected by an executive decision is entitled to the full measure of Charter scrutiny unrestricted by notions of deference. It is only at the review stage that a neutral, uninvolved examination of the decision can take place.
See also U.S.A. v. Gillingham (2004), 2004 BCCA 226, 184 C.C.C. (3d) 97 (B.C.C.A.).
[21] However, the principal decision on the standard of review is the Supreme Court of Canada’s judgment in U.S.A. v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532. Although Arbour J., writing for the court, cited Stewart with approval, I do not believe that she fully endorsed it. She wrote at paras. 94-95:
[94] While prosecutorial discretion is at the heart of the ministerial function and attracts a high standard of deference on judicial review, much less deference is due on the issue of whether the Minister properly considered the fugitive’s constitutional rights, including s. 6 of the Charter (see Stewart v. Canada (Minister of Justice) (1998), 131 C.C.C. (3d) 423 (B.C.C.A.), at pp. 432-33).
[95] In my opinion, the Minister’s decision to surrender in this case was clearly reasonable in view of the relevant factors:…”
[22] I read these paragraphs to mean that in assessing a Charter claim, the Minister must apply the correct test or the correct legal principles; if the Minister does not do so then the surrender order will be reviewable on the correctness standard. If, however, the Minister applies the correct test, the weighing of the factors relevant to that test is entitled to deference. To summarize what Arbour J. concluded in Kwok at para. 95, if on a consideration of the relevant factors the Minister’s surrender order is “clearly reasonable”, a reviewing court ought not to interfere.
[23] Mr. Lake contends that the Minister erred in his Cotroni assessment for two reasons: the Minister applied the wrong principle because he erroneously concluded that Canada had no jurisdiction to try the offence for which he is to be extradited; and the Minister erred by failing to consider all the Cotroni factors. I do not accept either contention.
[24] I repeat for convenience the Minister’s brief reasons on s. 6 of the Charter.
You have argued that, pursuant to Cotroni, supra, it is a “realistic option” to prosecute Mr. Lake in Canada for the offence of distribution of cocaine. With respect, I disagree. The transfer of cocaine from Mr. Lake to Cst. Faiella is alleged to have taken place in the City of Detroit. Canada has no jurisdiction to prosecute this offence. Even if some form of prosecution in Canada were possible, in the circumstances of this case, I would yield to the superior interest of the United States of America in prosecuting this matter. The evidence alleges that Mr. Lake trafficked cocaine within the boundaries of the United States of America. The United States of America is entitled to seek to protect its own public and maintain public confidence in its laws and criminal justice system through prosecution.
[25] On his first contention, Mr. Lake focuses on the sentence “Canada has no jurisdiction to prosecute this offence.” Taken in isolation this sentence gives force to Mr. Lake’s argument. His offer to deliver crack cocaine took place in Windsor. Therefore, even though the delivery took place in the United States, he could have been prosecuted for trafficking (by offer) in Canada. See R. v. Libman, [1985] 2 S.C.R. 178; Controlled Drugs and Substance Act, S.C. 1996, c.19, s. 2 (1).
[26] However, this jurisdictional question is unimportant because the Minister went on to consider Mr. Lake’s s. 6 claim on the assumption that “some form of prosecution in Canada were possible.” He then correctly applied the test under Cotroni.
[27] On the second contention, Mr. Lake points out that the Minister expressly referred to only a few of the Cotroni factors. The full set of Cotroni factors is as follows:
where was the impact of the offence felt or likely to have been felt;
which jurisdiction has the greater interest in prosecuting the offence;
which police force played the major role in the development of the case;
which jurisdiction has laid charges;
which jurisdiction has the most comprehensive case;
which jurisdiction is ready to proceed to trial;
where is the evidence located;
whether the evidence is mobile;
the number of accused involved and whether they can be gathered together in one place for trial;
in what jurisdiction were most of the acts in furtherance of the crime committed;
the nationality and residence of the accused;
the severity of the sentence the accused is likely to receive in each jurisdiction.
[28] The Minister referred to the second factor (the superior interest of the United States in prosecuting); the fourth factor (the United States has laid the charge); and the tenth factor (the conduct took place in the United States). From the extradition request and committal order, the Minister would also have known that the United States was ready to go to trial (the sixth factor) and had the evidence to do so (the seventh factor).
[29] The Minister did not refer to some of the factors that might favour a domestic prosecution: for example, Mr. Lake’s nationality and residence (the eleventh factor) – he was a Canadian citizen living in Ontario; and the police force that played a major role in the development of the case (the third factor) – the OPP. However, the Minister is not required to refer expressly to each Cotroni factor. See United States of America v. Whitley (1994), 20 O.R. (3d) 794 (C.A.), reasons adopted by the Supreme Court of Canada, 1996 225 (SCC), [1996] 1 S.C.R. 467. Unless Mr. Lake can show that the factors the Minister did not refer to would make his Cotroni assessment unreasonable, this court should not interfere with the surrender order. I do not think that Mr. Lake can do so.
[30] In my view, the Minister’s Cotroni assessment was “clearly reasonable”. The United States has a greater interest than Canada in prosecuting the offence in question. The offence took place in the United States. The FBI obtained and implemented the wiretape authorization, provided the buy money and surveillance coverage, and took custody of both the electronic and narcotic evidence. In short, the American government has a legitimate interest in prosecuting Mr. Lake in its own territory. I would not give effect to this ground of appeal.
3) Does Mr. Lake’s surrender to face a mandatory minimum sentence of ten years imprisonment breach s. 7 of the Charter and s. 44(1)(a) of the Extradition Act
[31] If extradited to the United States for distributing over 50 grams of crack cocaine, Mr. Lake faces a mandatory minimum sentence of ten years in prison with no eligibility for parole and no credit for any portion of the sentence he served in Canada. The government may recommend that the sentence be reduced, but only if certain stringent conditions are met. Mr. Lake submits that his surrender to face this sentence breaches his rights under s. 7 of the Charter (his right not to be deprived of his liberty and security of the person except in accordance with the principles of fundamental justice) and s. 44(1)(a) of the Extradition Act, S.C. 1999, c. 8 (his right not to be surrendered if “the surrender would be unjust or oppressive having regard to all the relevant circumstances”).
[32] Mr. Lake makes two arguments in support of this submission. First he argues that the ten-year mandatory minimum is arbitrary, and second he argues that it results in a disproportionate sentence. I disagree with both arguments.
[33] Mr. Lake’s argument on arbitrariness arises from the different sentencing regimes in the United States for distributing crack cocaine and distributing powdered cocaine. Mandatory minimum sentences in the United States for drug offences are based on quantity and substance. The United States scheme equates the distribution of one unit of crack cocaine to the distribution of 100 units of powdered cocaine. Distributing over 50 grams of crack cocaine merits the ten-year mandatory minimum sentence Mr. Lake faces. To merit a ten-year mandatory minimum sentence for distributing powdered cocaine, a person would have to distribute at least 5 kilograms.
[34] Mr. Lake contends that this 100:1 ratio is irrational. He points out that in three separate reports the United States Sentencing Commission has recommended a reduction in the minimum sentence for distributing over 50 grams of crack cocaine[^1].
One of the main reason that the Commission has recommended abandoning the 100:1 ratio is its disproportionate impact on African American communities. The Commission’s recommendation has consistently been rejected by the United States Congress[^2].
[35] Arbitrariness is not the test under s. 7 of the Charter or under s. 44(1)(a) of the Extradition Act. The test is far more stringent: to offend s. 7 the foreign sentence must “shock the conscience” or be “simply unacceptable”. See Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; United States of America v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283. Similarly, to offend s. 44(1)(a) of the Act, the sentence must be “unjust” or “oppressive”. The arbitrariness of a sentence may be a consideration in whether a sentence infringes s. 7 or s. 44(1)(a), but it alone is not determinative. Even a sentence that would not pass constitutional muster in Canada would not necessarily offend s. 7. We do not require that foreign criminal sentencing policies meet Canadian constitutional norms. See Canada v. Schmidt, [1987] 1 S.C.R. 500; Ross v. United States of America (1994), 93 C.C.C. (3d) 500 (B.C.C.A.), reasons adopted by the Supreme Court of Canada, [1996] 1 S.C.R. 496. “Shocks the conscience” remains the Charter standard.
[36] I am not persuaded that a mandatory minimum sentence of ten years for distributing nearly 100 grams of a drug as lethal as crack cocaine either shocks the Canadian conscience or is so unjust that the intervention of this court is warranted. Indeed I am not even persuaded that the ten-year sentence is arbitrary or irrational.
[37] The United States has chosen to treat trafficking in crack cocaine far more gravely than trafficking in powdered cocaine. It appears to have had valid reasons – born of its own experience – for doing so. Mr. Miller on behalf of Mr. Lake fairly told us that the United States circuit courts of appeal, without exception, have rejected constitutional challenges to the 100:1 ratio[^3]. These courts have found that Congress had a rational basis for treating the distribution of crack cocaine more severely: it viewed the distribution of crack as a greater threat than the distribution of powdered cocaine because it was less expensive and thus more easily obtained; and it thought crack cocaine to be more addictive.
[38] Moreover, save in exceptional circumstances, of which this is not one, I think it unwise for a Canadian court to, in effect, put United States sentencing policy on trial. Compare United States of America v. Burns, supra. It is not for this court to pronounce on the wisdom of that policy. Ordinarily deference to ministerial decisions, grounded in considerations of comity, weighs against judicial intervention. And that is especially so because American courts, like our own, have fair procedural safeguards in their sentencing proceedings.
[39] Mr. Lake’s argument on proportionality is that the United States will not make his sentence for distributing cocaine concurrent with the Canadian sentence that he has already served. He contends that courts generally avoid imposing consecutive sentences for conspiring to commit an offence and for the offence that was the sole object of the conspiracy. Yet, if convicted, he will receive what amounts to consecutive sentences, making his sentence in the United States disproportionate.
[40] I see little merit in this argument. If proportionality has any role to play under s. 7 of the Charter or s. 44(1)(a) of the Extradition Act, then the sentence must be so extreme that it offends what is fair and just. The sentence Mr. Lake faces falls far short of this.
[41] Mr. Lake has already received an accommodation from a Canadian court in anticipation of the United States sentencing proceedings. Three years (plus eight months pre-trial custody) for the offence that he committed here was light by Canadian standards, even on a guilty plea. Also, in several cases, this court and the Supreme Court of Canada have held that extradition to the United States to face even longer mandatory minimum sentences was constitutional. One example is the decision in United States of America v. Jamieson, [1996] 1 S.C.R. 465, where the Supreme Court of Canada upheld extradition to the United States to face a minimum twenty-year sentence for the sale of ten ounces of cocaine. See also United States of America v. Whitley, supra, and Ross v. United States of America, supra. I would not give effect to this ground of appeal.
D. CONCLUSION
[42] The Minister gave adequate reasons for holding that surrendering Mr. Lake would not infringe his right to remain in Canada under s. 6 of the Charter. The Minister’s “Cotroni assessment” under s. 6 of the Charter was reasonable. Surrendering Mr. Lake to face a mandatory minimum sentence of ten years imprisonment for distributing over 50 grams of crack cocaine does not shock the conscience and is not unjust or oppressive, and therefore does not offend either s. 7 of the Charter or s. 44(1)(a) of the Extradition Act. I would therefore dismiss Mr. Lake’s application for judicial review.
RELEASED: Sept. 01, 2006
“JL” “John Laskin J.A.”
“I agree Robert P. Armstrong J.A.”
“I agree Jean MacFarland J.A.”
[^1]: United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy (February 1995); United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy (April 29, 1997); United States Sentencing Commission, Report to Congress – Cocaine and Federal Sentencing Policy (May 2002).
[^2]: The first of these reports was submitted pursuant to 28 U.S.C. § 994(p), which provides that an amendment to the sentencing guidelines submitted by the Commission will take effect unless Congress disapproves it. In October 1995 Congress enacted legislation “to disapprove of amendments to the Federal Sentencing Guidelines relating to lowering of crack sentences” and directed a further report (Pub. L. No. 104-38, 109 Stat. 334). The subsequent reports were not submitted under the authority of 28 U.S.C. § 994(p) and therefore did not require Congressional action to preclude their coming into force.
[^3]: See e.g. United States v. Gaines, 122 F.3d 324 (6th Cir. 1997); United States v. Williams, 962 F.2d 1218 (6th Cir. 1992). See also United States v. Peterson, 143 F.Supp.2d 569 (E.D. Va. 2001).