United States of America v. Magnifico, 2007 ONCA 535

CITATION: United States of America v. Magnifico, 2007 ONCA 535

DATE: 20070720

DOCKET: C43776 and C45257

COURT OF APPEAL FOR ONTARIO

GOUDGE, BLAIR and LAFORME JJ.A.

BETWEEN:

THE UNITED STATES OF AMERICA

Respondent/Requesting State

and

ITALO MAGNIFICO

Appellant/Person Sought

AND BETWEEN:

THE MINISTER OF JUSTICE

Respondent

and

ITALO MAGNIFICO

Appellant

Edward L. Greenspan, Q.C. for the appellant Bradley Reitz for the respondent

Heard: February 5, 2007

On appeal from the extradition order of Justice Peter Jarvis of the Superior Court of Justice, dated July 4, 2005, and by way of judicial review of the Minister’s surrender order dated March 30, 2006.

R.A. BLAIR J.A.

[1] Mr. Magnifico appeals from his committal for extradition to the United States by Justice Jarvis on July 4, 2005, and seeks judicial review of the Minister’s surrender order dated March 30, 2006.

[2] On his behalf, Mr. Greenspan submits that the extradition judge erred in his refusal to stay the proceeding on the ground that the actions of the Canadian authorities in the handling of the Canadian charges laid against him and in their handling of the extradition matter amounted to an abuse of process. In relation to the surrender order, he contends that the surrender is contrary to s. 6(1) of the Canadian Charter of Rights and Freedoms and is unjust and oppressive (a) because of the potentially severe penalty to which Mr. Magnifico may be subject if convicted in the United States, (b) because of the abuse of process referred to above, and (c) because there is no evidence to support the offence on which Mr. Magnifico is sought to be extradited.

[3] For the reasons that follow, I would dismiss both the appeal and the application for judicial review.

Facts

[4] The appellant is alleged to have supplied ecstasy in Toronto to American couriers who transported the drugs to Florida for distribution and sale. The shipments are said to have involved between 500 and 30,000 pills.

[5] Three of the appellant’s co-conspirators were arrested in the United States and agreed to co-operate with the United States authorities. As part of that co-operation, two of them – the Provenzano brothers, Santino and Steve – agreed to act as agents for the authorities and travelled to Toronto where they participated in a number of “buys” from Mr. Magnifico, each involving approximately 5,000 ecstasy pills.

[6] On April 11, 2002, Mr. Magnifico was arrested, along with another Canadian, Richard Savinetti, and charged in Canada with a number of drug-related offences involving ecstasy and hashish. Mr. Magnifico was released on bail, subject to relatively strict conditions which were gradually relaxed to some extent at a number of court appearances over the next two and a half years leading up to the events giving rise to this appeal. His charges were adjourned several times over this same period to await an extradition request from the United States.

[7] On November 4, 2003, Mr. Savinetti pleaded guilty in the Canadian proceedings to one count of possession for the purpose of trafficking and two counts of failure to comply. He was given a conditional sentence of two years less a day.

[8] Almost a year later, Canadian authorities received a request for extradition from the United States, and on October 4, 2004, an authority to proceed to extradition was issued. Counsel for the Attorney General applied for an arrest warrant under the Extradition Act,[^1] and on November 3, 2004, the appellant was arrested. The Canadian charges against him were adjourned to be dealt with on April 11, 2005.

[9] Two offences under Canadian law are named in the authority to proceed. They are: (1) conspiracy to traffic in a Schedule III substance, and (2) conspiracy to import into Canada a Schedule III substance. Ecstasy is a Schedule III drug. The Record of the Case for Prosecution in relation to the extradition relied heavily on the anticipated testimony of persons who have been charged, or who have pleaded guilty in the United States, in relation to the comparable American offences.

[10] Nothing happened with respect to the Canadian charges between November 2004, when the appellant was arrested on the extradition warrant, and March 2005. On March 21, 2005, however, the Department of Justice moved the charges up from their anticipated April 11 return date and – without any notice to the appellant or his counsel, and in their absence – withdrew the charges.

[11] In the meantime, on March 4, 2005, the appellant had moved for an adjournment of the extradition hearing pending the anticipated release the Supreme Court of Canada’s decisions in the Ferras and Latty cases. Those cases raised the issue of the admissibility of evidence in extradition proceedings and the right of Canadian counsel to challenge the Record of the Case on grounds of reliability and credibility.[^2] On April 18, 2005, Justice Chapnik dismissed this application.

[12] The extradition hearing proceeded before the extradition judge on June 14, 15, and 21, 2005. The appellant brought two applications at the time. First, he requested, again, that the proceedings be adjourned pending the Ferras and Latty decisions. Secondly, he requested a stay on the ground that the actions of the Canadian authorities amounted to an abuse of process. The extradition judge denied both applications and committed Mr. Magnifico for extradition.

[13] The “surrender” phase before the Minister of Justice then began. In the course of that process, Mr. Greenspan made comprehensive submissions on behalf of Mr. Magnifico, raising all of the issues that had been canvassed during the extradition hearing, together with the abuse of process, s. 6(1) and other arguments referred to above. On March 30, 2006, the Minister ordered that Mr. Magnifico surrender.

Analysis

The Extradition Hearing

[14] On the appeal, Mr. Greenspan did not pursue the point about the denied adjournment pending the Ferras and Latty decisions. Instead, he focused on his argument that the extradition judge erred in refusing to stay the proceedings on abuse of process grounds. In this respect, his principle submissions were:

(a) that the Canadian charges were a ruse, and that the Canadian authorities had acted inappropriately in laying them as a “holding operation” only, pending the decision of the United States whether to seek extradition, and without any bona fide intention to proceed with those charges in Canada; and

(b) that by surreptitiously moving the charges up to March 21st and withdrawing them in the absence of the appellant and his counsel, the Department of Justice improperly deprived the appellant of the opportunity to ask the court to compel the Crown to proceed in Canada and – more significantly – deprived him of the right to create a record at that hearing for purposes of making submissions to the Minister in the surrender process that Canada was the more appropriate jurisdiction for determining the charges, in accordance with the requirements laid down by the Supreme Court of Canada in that regard in United States v. Cotroni (1989), 48 C.C.C. (3d) 198 (S.C.C.).

[15] I do not accept these submissions.

[16] The extradition judge correctly noted that there is a “very high threshold to meet before a stay of proceedings will be granted”. While an extradition judge has the jurisdiction to grant such a remedy, it will only be granted in the clearest of cases, on the basis that the prosecution “is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court”: United States v. Cobb (2001), 2001 SCC 19, 152 C.C.C. (3d) 270 at para. 38 (S.C.C.), citing R. v. Conway (1989), 49 C.C.C. (3d) 289 at 301-02 (S.C.C.). In R. v. Regan (2002), 2002 SCC 12, 161 C.C.C. (3d) 97 (S.C.C.) at para. 54, Lebel J. said:

Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met:

(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(2) no other remedy is reasonably capable of removing that prejudice. [Citation omitted.]

The Court’s judgment in Tobiass, at para. 91, emphasized that the first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a past wrong. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future. [Emphasis added.]

[17] The extradition judge did not err in refusing to grant a stay in the circumstances of this case.

[18] First, he made a finding that the laying of the Canadian charges was not a ruse, done for an improper purpose. I see no palpable or overriding error in that finding on this record, and there is therefore no basis for interfering with it. There is nothing inherently wrong with the Crown maintaining criminal charges in Canada – assuming they are brought bona fide – until the Minister decides whether to authorize extradition proceedings: Unites States v. Prudenza (2006), 213 C.C.C. (3d) 312 at para. 38 (Ont. C.A.). Moreover, there is nothing improper about staying the criminal charges in favour of extradition: R v. Larosa (2002), 166 C.C.C. (3d) 449 (Ont. C.A.).

[19] Here, the Crown had ample evidence to support the laying of the charges. Amongst other factors, the Provenzano brothers had engaged in four specific drug transactions involving the appellant – each for 5,000 pills of ecstasy – and were prepared to testify about it. There are wiretaps of the appellant’s conversations with them. At the time of his arrest, approximately 43,000 pills were seized from a residence linked to him. It is not as if the Canadian charges against him were “trumped up”.

[20] Secondly, Mr. Greenspan’s argument that the appellant was deprived of a forum in the Ontario Court of Justice to probe the reasons surrounding the delayed extradition request and the Cotroni basis for proceeding in the United States – creative as it is – cannot prevail. While the Crown’s haste and secrecy in bringing the charges forward and dealing with them without notice to Mr. Greenspan or his client remains puzzling, I know of no authority requiring the Crown to proceed with charges it no longer wishes to pursue. Mr. Greenspan acknowledged that he was aware of none either. Nor is the Crown required to provide an explanation for withdrawal. Courts are reluctant to interfere with prosecutorial discretion in laying or withdrawing charges and will only do so in the clearest of cases: see United States v. Leon (1996), 105 C.C.C. (3d) 385 (S.C.C.).

[21] I can see no basis upon which the appellant would have been successful in persuading a judge to compel the Crown to proceed with charges it no longer wished to pursue, solely for the purposes of exploring the Crown’s reasons for withdrawal and permitting the appellant to create a Cotroni record for purposes of a pending extradition hearing in another court. Consequently, I do not see how the withdrawal of the Canadian charges in the Ontario Court of Justice can be said to have impinged upon the appellant’s right to remain in Canada pursuant to s. 6(1) of the Charter or to have been an event sufficiently egregious to have tainted the integrity of the extradition process, thus justifying a stay.

[22] This is particularly so where the appellant had other remedies in the extradition proceedings. The appellant could have requested a hearing before the Minister to attempt to vindicate his right to stay in Canada (an admittedly rare, but possible, option), but he made no such request. He could have attempted to persuade the extradition judge to exercise his discretion to hear evidence, with a view to laying the foundation for the appellant’s Cotroni arguments to the Minister within the parameters laid down in United States v. Kwok (2001), 2001 SCC 18, 152 C.C.C. (3d) 225 at paras. 60-84 (S.C.C.). Finally, the appellant made full submissions to the Minister on the Cotroni factors, and the Minister took those submissions into account in making his surrender decision.

[23] Here, as the extradition judge noted:

There is no evidence of what Mr. Magnifico would have done had he been provided with notice that the Canadian charges were going to be withdrawn. The charges had existed for some time, and there had been numerous court appearances. On the face of it, Mr. Magnifico had ample opportunity to plead guilty, or to create a record.

[24] I can find no error in his decision not to stay the extradition proceedings on the grounds of abuse of process.

The Minister’s Surrender Decision

[25] Nor would I give effect to the application for judicial review of the Minster’s surrender decision.

[26] The Minister’s decision whether to surrender someone for extradition is primarily an exercise of executive discretion; it is essentially political in nature and at the extreme legislative end of the continuum of administrative decision making. A surrender decision is therefore entitled to great deference, and courts must be “extremely cautious” to avoid undue interference in this area. See Schmidt v. The Queen (1987), 33 C.C.C. (3d) 193 at 213-14 (S.C.C.); Idziak v. Canada (Minister of Justice) (1992), 77 C.C.C. (3d) 65 at 83-84 (S.C.C.); and United States v. Burns (2001), 2001 SCC 7, 151 C.C.C. (3d) 97 at 118 (S.C.C.).

[27] Section 47(d) of the Extradition Act gives discretion to the Minister to refuse to make a surrender order where the conduct in respect of which the extradition request is made “is the subject of criminal proceedings in Canada against the person [sought].” Article 17 bis of the Canada-United States Extradition Treaty[^3] deals with this type of situation as well. It provides that:

If both contracting Parties have jurisdiction to prosecute the person for the offence for which extradition is sought, the executive authority of the requested State, after consulting with the executive authority of the requesting State, shall decide whether to extradite the person or submit the case to its competent authorities for purpose of prosecution. In making its decision, the requested State shall consider all relevant factors, including but not limited to:

(i) the place where the act was committed or intended to be committed or the injury occurred or was intended to occur;

(ii) the respective interests of the Contracting Parties;

(iii) the nationality of the victim or the intended victim; and

(iv) the availability and location of the evidence.

[28] Although compacted into four factors, these criteria echo those adopted by LaForest J. in Cotroni (at 225) and are intended to provide the benchmarks for balancing whether the rights of the person sought under s. 6(1) of the Charter would be violated by extradition in such circumstances.

[29] Mr. Greenspan submits that the Minister erred in concluding that the appellant’s surrender was not contrary to s. 6(1) and the Treaty. As noted at the outset of these reasons, he contends that the surrender is unjust and oppressive (a) because of the potentially severe penalty to which Mr. Magnifico may be subject if convicted in the United States, (b) because of the abuse of process referred to above, and (c) because there is no evidence to support the offence on which Mr. Magnifico is sought to be extradited.

[30] I do not agree.

[31] The Minister’s surrender letter demonstrates that he carefully considered all of these submissions and all of the pertinent Cotroni factors, s. 47(d) of the Extradition Act, and Article 17 bis of the Treaty. There was ample material in the Record to support his conclusion that Mr. Magnifico should be extradited to the United States rather than be prosecuted in Canada.

[32] The Crown acknowledges that the appellant may be subject to a more severe penalty if he is convicted in the United States and that this factor is relevant to the surrender analysis by virtue of s. 7 of the Charter: Burns, supra, at 126. Mr. Reitz points out, however, that in at least three other narcotics-related cases the Supreme Court of Canada has affirmed surrender orders to the United States where the persons sought faced long minimum sentences: see Minister of Justice v. Jamieson (1996), 104 C.C.C. (3d) 575; Ross v. United States of America (1996), 104 C.C.C. (3d) 446; and United States v. Whitley (1996), 104 C.C.C. (3d) 447.

[33] The Minister considered this jurisprudence and applied it to the appellant’s situation. He made no error in concluding that it would not be fundamentally unjust to surrender the appellant on the basis of his potential exposure to a more severe penalty.

[34] Nor did he err in refusing to surrender on abuse of process grounds. Mr. Greenspan made the same argument to the Minister as he made in this court. I have already rejected it for the reasons set out above.

[35] Finally, I do not accept the argument that there was no evidence to support the offences in the authority to proceed. The appellant submits that the authority to proceed calls for extradition on charges of conspiracy to traffic in and to import ecstasy into Canada, whereas all the evidence points to importing into the United States.

[36] This submission is founded on a misconception of the purpose for outlining the proposed offence in the authority to proceed. An authority to proceed must contain “the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person”: Extradition Act, s. 15(3)(c). [Emphasis added.] Here, the record of the case in the United States proceedings alleges that the appellant conspired to traffic in ecstasy and to import it into the United States. Thus the authority to proceed simply identifies – correctly – the Canadian offences mirroring the charges that the appellant’s alleged conduct gives rise to in the requesting state.

[37] The Minister made no error on this issue.

[38] In the end, there was no violation of the appellant’s s. 6(1) Charter rights, no abuse of process, and ample evidence to support the charges on which extradition is sought. I would not interfere with the Minister’s order to surrender Mr. Magnifico to the United States authorities for extradition.

Disposition

[39] For the foregoing reasons, the appeal from the extradition order of the extradition judge and the application for judicial review of the Minister’s surrender order are dismissed.

“R.A. Blair J.A.”

“I agree S.T. Goudge J.A.”

“I agree H.S. LaForme J.A.”

RELEASED: July 20, 2007

[^1]: S.C. 1999, c. 18, s. 16. [^2]: United States of America v. Ferras; United States of America v. Latty (2006), 2006 SCC 33, 209 C.C.C. (3d) 353 (S.C.C.). The Court held that counsel was entitled to a limited right of challenge on reliability and credibility grounds. [^3]: See the Protocol amending the Treaty on Extradition between the Government of Canada and the Government of the United States of America signed at Washington on December 3, 1971 as amended by an Exchange of Notes on June 28 and July 9, 1974, 11 January 1988, Can. T.S. 1991 No. 37 (entered into force 26 November 1991).