CITATION: Italy v. Caruana, 2007 ONCA 488
DATE: 20070629
DOCKET: C42781
COURT OF APPEAL FOR ONTARIO
MACPHERSON, GILLESE and ROULEAU JJ.A.
BETWEEN:
REPUBLIC OF ITALY and MINISTER OF JUSTICE
(Respondents)
And
ALFONSO CARUANA
(Applicant/Appellant)
Philip Campbell for the appellant
Nancy Dennison for the respondent, the Attorney General of Canada
Heather Graham for the respondent, the Minister of Justice
Heard: June 8, 2007
On appeal from the committal order of Justice David Watt of the Superior Court of Justice dated November 26, 2004, with reasons reported at [2004] O.J. No. 5851, and an application for judicial review of the order for surrender of the Minister of Justice dated November 17, 2005.
BY THE COURT:
[1] Italy seeks the extradition of Mr. Caruana.
[2] Mr. Caruana was committed to stand trial in Italy in 1994 for his role in a crime family and his involvement in an international drug conspiracy between 1977 and 1986. He was tried along with a number of other defendants. Prior to the commencement of the trial, the criminal court in Italy found that Mr. Caruana was a "defaulter". He did not appear at his trial; the Italian court proceeded in his absence. Mr. Caruana was represented by counsel at the trial. He was convicted of offences relating to his role in the international drug conspiracy and with the crime group.
[3] In 1997, Mr. Caruana appealed his convictions. There he had the benefit of both counsel of his choice and court-appointed counsel but, again, he was not present at the hearing of the appeal. His appeal was dismissed and, later in 1997, the Italian appeal court sentenced him to twenty-one years and ten months imprisonment. An enforcement order was issued by the Italian court on February 6, 1998, but no part of the sentence was served as Mr. Caruana had "absconded".
[4] In 2000, Mr. Caruana pleaded guilty to drug trafficking in Canada and was sentenced to eighteen years in prison.
[5] In 2003, Italy began extradition proceedings. At that time, Mr. Caruana was entitled to be considered for conditional release from the Canadian prison in which he was serving his sentence for the Canadian offences. The record of the case against Mr. Caruana provided by Italy showed his involvement with a crime family, international drug transactions and transfers of large sums of money to facilitate those transactions. The evidence came from informants who had also been charged, electronic surveillance and investigators.
[6] In November 2004, Mr. Caruana was ordered committed for surrender on the Italian offences by Watt J.
[7] Mr. Caruana made submissions to the Minister of Justice on February 24, 2005, arguing that it would be abusive to surrender him because the trial in Italy was conducted in his absence and he had no further right of appeal or review. On November 17, 2005, the Minister ordered his surrender to Italy, finding that it was not unjust or oppressive to surrender him given the findings of the extradition judge and that Mr. Caruana would be entitled to seek a review of his convictions in Italy. The Minister found that assurances of a new trial were not necessary.
[8] On May 10, 2006, Mr. Caruana made further submissions to the successor Minister of Justice and asked that the Minister rescind the surrender order. The Minister declined to reconsider the surrender order.
[9] Mr. Caruana appeals his committal and seeks judicial review of the Minister's surrender order.
A PRELIMINARY MATTER
[10] Mr. Caruana seeks to introduce as fresh evidence, the opinion of Antonella Cuccureddu, an Italian lawyer, regarding the likelihood that Mr. Caruana would be able to successfully obtain a review of his Italian convictions under provisions in Italian criminal law procedure.
[11] This evidence could have been adduced at the proceedings before the committal judge or the Minister or both. Ms. Cuccureddu was known to Mr. Caruana prior to the extradition hearing in October 2004, as she was scheduled to give sworn testimony and be cross-examined in September 2004. Mr. Caruana did not seek to tender her opinion at the committal hearing nor did he include it in support of his submissions to the Minister in February 2005 or May 2006.
[12] This fresh evidence relates to the availability of the Italian review process and what rights Mr. Caruana will have if he is extradited. That matter is the very essence of the position argued by Mr. Caruana at committal and before the Minister so it cannot be said that the issue is new. In our view, the proposed fresh evidence comes too late in the process to be adduced for the first time now and ought not to be admitted.
[13] In any event, it would make no difference to the result. The Italian authorities have confirmed that Mr. Caruana may seek a review of his conviction. Furthermore, there is nothing in the record to indicate that Mr. Caruana has sought to bring such a review application. To that extent, the fresh evidence is about the hypothetical outcome of proceedings that may never be brought. It is speculative. Moreover, the information in the affidavit fails to demonstrate that Mr. Caruana's surrender would be unjust or oppressive and, thus, is not relevant to the Minister's surrender decision.
The Appeal and Application for Judicial Review
[14] Mr. Caruana makes three primary arguments on the appeal and application.
[15] First, he argues that he was committed on unreliable evidence and, consequently, in light of United States of America v. Ferras (2006), 2006 SCC 33, 209 C.C.C. (3d) 353 (S.C.C.), his committal cannot stand.
[16] We disagree. Ferras permits the extradition judge to remove evidence from judicial consideration if satisfied that the evidence is so manifestly unreliable or defective that it should be disregarded and given no weight for the purposes of deciding whether the test for committal has been met: United States of America v. Anderson (2007), 2007 ONCA 84, 219 O.A.C. 369 at para. 29 (C.A.), leave to appeal to S.C.C. requested, [2007] S.C.C.A. No. 159. The evidence in the record of the case was sufficient to justify committal: it is neither manifestly unreliable or defective. Nor is it vague or conclusory. It establishes a prima facie case that Mr. Caruana was one of the organizing forces of an international heroin drug conspiracy, a member of a crime group and involved in money laundering. The evidence consists not only of the testimony of co-operating accomplices but also of bank documents showing that Mr. Caruana received more than $35,000,000 in cash in his various bank accounts, which money was subsequently transferred to Switzerland and paid to people associated with international drug trafficking. Mr. Caruana does not put forth any evidence to undermine that contained in the record of the case.
[17] Second, Mr. Caruana argues that s. 7 of the Charter is violated because he is to be surrendered to Italy where he was convicted in absentia and he has no assurance of a new trial.
[18] Again, we disagree. Mr. Caruana has not demonstrated that his surrender is contrary to s. 7. He was found to be a "defaulter" in accordance with Italian law. Mr. Caruana has provided no evidence on which to dispute that finding. Also in accordance with Italian law, he was tried and convicted in absentia. Further, he is entitled to seek a review of his convictions pursuant to Italian law.
[19] The fact that a foreign state has a different legal system does not mean that its system of justice is unfair. The principles of fundamental justice in the extradition context recognize that differences in the criminal justice systems of other jurisdictions are to be respected and that the Charter guarantees are not to be given extraterritorial effect to govern how criminal proceedings in a foreign state are conducted. See Kindler v. Canada (Minister of Justice) (1991), 67 C.C.C. (3d) 1 at 55 (S.C.C.). Mr. Caruana led no evidence to suggest that the safeguards which exist in the Italian justice system in respect of in absentia proceedings operate unfairly, either generally or in Mr. Caruana's specific circumstances. The fact that the trial proceeded in absentia and the question of whether Mr. Caruana is to be granted a review of his convictions are matters that are to be determined by Italy.
[20] Further, we see nothing unconstitutional in the discretion given to the Minister under the Extradition Act, S.C. 1999, c. 18 to order Mr. Caruana's surrender. As the Supreme Court noted in United States of America v. Burns (2001), 2001 SCC 7, 151 C.C.C. (3d) 97 at para. 67, only circumstances of a "very exceptional nature" would constitutionally limit the Minister's discretion in extradition cases. Mr. Caruana has failed to demonstrate that his surrender, after having been convicted in absentia and without an assurance of a new trial, shocks the conscience of Canadians.
[21] Third, Mr. Caruana submits that the Minister did not satisfy himself that Art. 1(2) of the Treaty between Canada and Italy Concerning Extradition, Canada and Italy, 6 May 1981, Can. T.S. 1985 No. 17 has been met. This argument rests on the assertion that Italy was without jurisdiction to prosecute the offences.
[22] We see no merit in this submission. Italy clearly had the jurisdiction to prosecute the offences: the Italian Court of Appeal in Palmero found that Italy was "the main centre" where the crime families resided and the drug trafficking took place. The fact that Mr. Caruana was not physically present in Italy for his trial or appeal does not alter Italy's jurisdiction to prosecute the offences. Accordingly, we see no basis on which to remit this matter to the Minister for further reconsideration.
DISPOSITION
[23] Accordingly, the appeal and application are dismissed.
RELEASED: June 29, 2007 ("EEG")
"J. C. MacPherson J.A."
"E. E. Gillese J.A."
"Paul Rouleau J.A."