CITATION: Canada (Attorney General) v. Gorcyca, 2007 ONCA 76
DATE: 20070206
DOCKET: C42801 C37836
COURT OF APPEAL FOR ONTARIO
WEILER, GOUDGE and ROULEAU JJ.A.
B E T W E E N :
THE MINISTER OF JUSTICE
Respondent
Greg Lafontaine and Joseph Markin for the appellant/applicant
- and -
BRUCE ANTHONY GORCYCA aka ANTHONY DIMARCO aka TONY DIMARCO aka TONY DEMARCO aka TONY D. MARCO aka BRUCE DIMARCO
Bradley Reitz for the respondent
Appellant/Applicant
A N D
IN THE MATTER OF THE EXTRADITION ACT S.C. 1999 Ch. E-18
AND IN THE MATTER OF AN APPLICATION BY UNITED STATES OF AMERICA, EXTRADITION PARTNER, FOR THE EXTRADITION OF BRUCE ANTHONY GORCYCA a.k.a ANTHONY DIMARCO a.k.a. TONY DIMARCO a.k.a TONY DEMARCO a.k.a TONY D. MARCO a.k.a BRUCE DIMARCO
B E T W E E N:
THE UNITED STATES OF AMERICA
Requesting State (“Respondent”)
- and -
BRUCE ANTHONY GORCYCA a.k.a. ANTHONY DIMARCO a.k.a. TONY DIMARCO a.k.a. TONY DEMARCO a.k.a. TONY D. MARCO a.k.a. BRUCE DIMARCO
Person Sought (“Appellant”)
Heard: May 29 and 30, 2006
On appeal from the order of committal of Justice Tamarin M. Dunnet of the Superior Court of Justice dated February 25, 2002 and on an application for judicial review of the order of surrender of the Minister of Justice dated November 19, 2004.
GOUDGE J.A.:
[1] Bruce Anthony Gorcyca (whom I will call the appellant) is sought for extradition by the United States of America to face trial on one charge of conspiracy to commit wire fraud and securities fraud, six charges of wire fraud, and six charges of securities fraud.
[2] On February 25, 2002, he was committed by Dunnet J. to await surrender to the United States. On November 19, 2004, the Minister of Justice ordered his surrender to the United States.
[3] Mr. Gorcyca appeals the committal order and seeks judicial review of the surrender order. These proceedings were heard together in this court on May 29 and 30, 2006. At the outset, counsel for Mr. Gorcyca renewed his request for an adjournment. It had already been heard by Moldaver J.A. on May 15, 2006 and refused. Between that date and the hearing of the appeal nothing changed. We agreed with the conclusion of Moldaver J.A. and the reasons he gave. We denied the request for an adjournment.
[4] At the hearing of this appeal, the court requested that counsel file further written submissions in the judicial review proceeding on what I will call the “misalignment” argument made by Mr. Gorcyca, namely that the Minister has jurisdiction to order his surrender in the terms of the foreign charges only if there is a precise correspondence between the conduct alleged against him, the order committing him, and the foreign charges. These submissions were filed by the end of June 2006. In October 2006, Mr. Gorcyca discharged his lawyer and was given leave to file further written submissions by November 17, 2006, which he did. The court did not require a response from the Minister.
[5] Following the hearing in this court, on July 21, 2006, the Supreme Court of Canada issued its decision in United States of America v. Ferras (2006), 2006 SCC 33, 209 C.C.C. (3d) 353. As a consequence, counsel sought and received leave to file further written submissions on the appeal of the committal order. These submissions address what I will call the “Ferras” issue, namely the role of the extradition judge in assessing the sufficiency of the evidence presented at the committal hearing. The filing of these submissions was completed by October 4, 2006.
[6] We have considered all of these submissions. For the reasons that follow, I would dismiss both the appeal of the committal order and the application for judicial review of the surrender order.
Appeal of the Committal Order
[7] The appellant argues that he had inadequate notice of the case against him, that the extradition judge erred in dismissing his request for a stay based on abuse of process, that the reasons for committal are inadequate, and that the extradition judge erred in failing to prepare the actual committal order herself.
[8] We did not require the respondent to answer any of these arguments. The record of the case submitted by the United States, together with the Authority To Proceed issued by the Minister, amply describe the allegations faced by the appellant. The abuse of process allegation falls far short of demonstrating any compromise to the fairness of the committal hearing or any potentially ominous climate that might be facing the appellant in the United States. The reasons of the extradition judge reveal her reasoning process and permit meaningful appellate review. Finally, the fact that the committal order signed by the extradition judge was prepared by the party seeking it is simply routine.
[9] The only argument that we required the respondent to answer was the appellant’s assertion that the record filed by the United States did not adequately indicate the sources of the information provided. I agree with the respondent’s response that, on proper examination, this is not so. The United States filed the record of the case and two supplementary records. Taken together, they adequately set out the sources of the information provided and certify their availability for trial. This ground of appeal fails.
[10] The appellant’s “Ferras” argument arises as a result of the decision of the Supreme Court of Canada last summer. In that case, the accused argued that the provisions of the Extradition Act, S.C. 1999, c. 18 (the “Act”), regulating the committal hearing do not ensure the threshold reliability of the evidence placed before the extradition judge and therefore do not comply with s. 7 of the Charter of Rights and Freedoms. The court dismissed this argument, finding that s. 29(1) of the Act gives the extradition judge the obligation to determine that the evidence is reliable enough to justify committal. The court was clear that this entitles the extradition judge to weigh the evidence to a limited extent, and further, that this represented a change in the previous jurisprudence which had left the extradition judge little or no room to evaluate the evidence from the foreign state. The court put it this way, at para. 46 of Ferras, supra:
Section 29(1)’s direction to an extradition judge to determine whether there is admissible evidence that would “justify committal” requires a judge to assess whether admissible evidence shows the justice or rightness in committing a person for extradition. It is not enough for evidence to merely exist on each element of the crime. The evidence must be demonstrably able to be used by a reasonable, properly instructed jury to reach a verdict of guilty. If the evidence is incapable of demonstrating this sufficiency for committal, then it cannot “justify committal”. The evidence need not convince an extradition judge that a person sought is guilty of the alleged crimes. That assessment remains for the trial court in the foreign state. However, it must establish a case that could go to trial in Canada. This may require the extradition judge to engage in limited weighing of the evidence to determine, not ultimate guilt, but sufficiency of evidence for committal to trial. [Emphasis in original.]
[11] In this case, the extradition judge understandably took her cue from the previous jurisprudence. In her reasons for judgment, she described her task as follows:
The person sought can point out weaknesses or deficiencies in the evidence of the Requesting State and present argument as to why he should not be extradited. However, the extradition judge is not required to weigh the evidence or to decide issues of credibility.
[12] While the extradition judge tasked herself with assessing the weaknesses or deficiencies in the evidence of the United States, she considered herself unable, because of the existing jurisprudence, to engage in any weighing of the evidence before her.
[13] Ferras now says that this is incorrect. The question is whether it would have made any difference in this case had she done so.
[14] The appellant’s position on this question turns on two pieces of evidence he adduced before the extradition judge. The appellant argues that had she engaged in even a limited weighing of that evidence against the evidence adduced on behalf of the United States, the latter would have been found insufficiently reliable to warrant his committal. I do not agree.
[15] The case against the appellant is that the fraudulent communications with which he is charged emanated from a condominium in North Miami Beach, Florida, between October 1997 and June 1999.
[16] The first piece of evidence the appellant relies on is the sworn statement of his former wife, Magaly Perez, in which she testifies that after the appellant moved out of that condo in the fall of 1997 he “did not use” the small office there, although he was there on weekends to pick up their daughter. This is only slightly different from her expected evidence as described in the record of the case tendered by the United States, which is to the effect that he went to the condo at least once a week to visit their daughter and do work in the home office. This slight difference does not make the latter unreliable as evidence of his access to the site from which the fraudulent communications originated.
[17] Taken together with substantial other evidence that the appellant sent the fraudulent faxes from that condo, a limited weighing of the sworn statement of Ms. Perez would not have affected the result reached by the extradition judge.
[18] The second piece of evidence is of even less assistance to the appellant. It is an affidavit from C. Elvin Feltner Jr. filed by the appellant at the committal hearing, in which Mr. Feltner testifies that he agreed to allow the appellant to offer some television airtime he owned to the appellant’s customers, and that at all times he was locatable by those seeking to contact him.
[19] The record of the case does not describe Mr. Feltner as a witness but does describe the expected evidence of others to the effect that they were unable to contact him or get confirmation from him that he had airtime available. In these circumstances, the Feltner affidavit does not diminish the reliability of this evidence nor does it diminish its sufficiency to justify the appellant’s committal. A limited weighing of it by the extradition judge would not have changed the result. I would therefore dismiss this ground of appeal.
[20] In summary, therefore, the appeal of the committal order is dismissed.
Judicial Review of the Surrender Order
[21] The appellant’s attack on the Minister’s decision to order his surrender in the terms of the foreign charges is based on his “misalignment” argument.
[22] The appellant argues that, because of the principle of double criminality, the Minister has no jurisdiction to order surrender for foreign offences where he is not satisfied that the particular conduct at issue in those offences has been determined by the extradition judge to justify committal for trial in Canada. The appellant therefore says that the surrender order must be quashed.
[23] Put another way, the appellant argues that the principle of double criminality protects him from extradition to face foreign charges based on conduct that has not been found to warrant committal in Canada for the counterpart Canadian offences. He says there cannot be a misalignment between the conduct alleged against him, the offences named in the committal order and the foreign charges.
[24] The appellant says that the Minister can easily avoid this difficulty by drafting the Canadian offences named in the Authority To Proceed in a way that matches the foreign charges.
[25] The background for this argument is the request of the United States for the extradition of the appellant dated October 3, 2000.
[26] The request said that he is the subject of an amended complaint filed in the United States District Court charging him with:
- one count of conspiracy to commit wire fraud and securities fraud;
- six counts of wire fraud; and
- six counts of securities fraud.
[27] The amended complaint (the foreign charging document) sets out these offences. Each count of wire fraud is based on a specific letter transmitted on a specific date to a specific recipient. Similarly, each count of securities fraud is based on conduct in relation to the securities of a particular company.
[28] The Minister issued an Authority To Proceed against the appellant on October 25, 2000. It said this:
The Canadian offences which correspond to the alleged conduct are:
• Attempted fraud contrary to section 380(1) of the Criminal Code;
• Attempted fraud affecting the public market contrary to section 380(2) of the Criminal Code; and
• False pretenses contrary to section 362 of the Criminal Code.
[29] On February 25, 2002, the extradition judge ordered the committal of the appellant for the offences set out in the Authority To Proceed.
[30] The Minister issued his decision to surrender the appellant on November 19, 2004 in the following terms:
Finally, I have decided to order your surrender to the United States on the offences of wire fraud (6 counts) and securities fraud (6 counts). I will not order surrender on the conspiracy offence since no Canadian offence was listed in the Authority to Proceed that would correspond to the conduct alleged in relation to the conspiracy charge and you were not committed for extradition on such an offence.
[31] The order of surrender of the same date orders the surrender of the appellant to the United States for “[s]ix counts of wire fraud” and “six counts of securities fraud … as set out in [the] amended complaint”.
[32] The appellant’s argument is not about the principle of specialty. The order of surrender leaves no doubt about the offences for which he can be prosecuted in the United States following his extradition. He can only be prosecuted for the foreign charges in the order.
[33] Rather, his argument engages the principle of double criminality. He says that for four counts of wire fraud, the evidence concerning the fax at issue (and whether he was its sender) was not analyzed by the extradition judge, and thus was not determined by the extradition judge to justify his committal in Canada.
[34] For two counts of securities fraud, the appellant says that there was no evidence before the extradition judge of conduct in relation to the securities of the two companies concerned. He says that the extradition judge could not have committed him on these two delicts and did not purport to do so.
[35] The appellant argues that, as a consequence, the Minister had no jurisdiction to surrender him for trial in the United States on these six offences. He says that the misalignment between these six foreign charges for which he is being surrendered, the charges on which he was committed, and the conduct alleged against him offends the requirements of Canadian extradition law.
[36] The broad context for the analysis of this issue has been provided by the Supreme Court of Canada. For nearly two decades that court has made clear that a rigidly technical approach to extradition proceedings should be rejected in favour of a fair and liberal interpretation that seeks to fulfill Canada’s international obligations. In Schmidt v. The Queen et al. (1987), 33 C.C.C. (3d) 193 at 215-16 (S.C.C.), the court put it this way:
The present system of extradition works because courts give the treaties a fair and liberal interpretation with a view to fulfilling Canada’s obligations, reducing the technicalities of criminal law to a minimum and trusting the courts in the foreign country to give the fugitive a fair trial, including such matters as giving proper weight to the evidence and adequate consideration of available defences and the dictates of due process generally.
[37] Before turning to the alleged misalignment between the various steps in the extradition process, the first task is to analyze whether each of those steps, taken separately, complies with the Act.
[38] The first step is the issuing of the Authority To Proceed by the Minister. Section 15(3) of the Act sets out its mandatory contents:
- (3) The authority to proceed must contain
(a) the name or description of the person whose extradition is sought;
(b) the name of the extradition partner; and
(c) the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person or the conduct in respect of which the person was convicted, as long as one of the offences would be punishable in accordance with paragraph 3(1)(b).
[39] The Authority To Proceed in this case complies with these mandatory requirements. The offences named in the Authority To Proceed need not specify particulars of the transactions alleged against the appellant, at least apart from considerations of due process. Moreover, the offences named in the Authority To Proceed may be fewer in number than those in the foreign charging document, provided that the former are broad enough to embrace the counts in the latter. See United States of America v. Saad (2004), 183 C.C.C. (3d) 97 at paras. 14, 43, 45, 48 (Ont. C.A.). In other words, there is no need for the offences named in the Authority To Proceed to precisely mirror the offences in the foreign charging document. Section 15(3) requires that the named Canadian offences correspond to the alleged conduct of the person sought, not to the foreign offences.
[40] The second step is the committal hearing and the resulting committal order issued by the extradition judge. For someone sought for prosecution, that step is governed by ss. 29(1)(a) and (2) of the Act:
- (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; …
(2) The order of committal must contain
(a) the name of the person;
(b) the offence set out in the authority to proceed for which the committal is ordered;
(c) the place at which the person is to be held in custody; and
(d) the name of the extradition partner.
[41] In this case, these requirements were also complied with. The extradition judge found that there was admissible evidence of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offences set out in the Authority To Proceed. In performing this limited task the extradition judge is not required to consider the foreign charging document or foreign law. See Saad, supra, at para. 23. In other words, at the committal stage there is no requirement to ensure that the alleged conduct supports the foreign charges.
[42] The third step is the surrender order issued by the Minister. Section 58 of the Act sets out its requirements. Sections 58(a) and (b) read as follows:
- An order of surrender must
(a) contain the name of the person who is to be surrendered;
(b) describe the offence in respect of which the extradition is requested, the offence for which the committal was ordered or the conduct for which the person is to be surrendered;
[43] Here the Minister met these requirements by ordering the appellant’s surrender for the offences in respect of which extradition was requested, namely the offences in the foreign charging document. Thus this step, viewed on its own, also satisfied the Act.
[44] However, the appellant argues that the Minister can only issue a surrender order in the terms of the foreign offences if he can be assured that the appellant’s alleged conduct that would support those offences has been found by the extradition judge to warrant committal in Canada. In other words, the alleged conduct, the offences named in the Authority To Proceed and the committal order, and the foreign offences described in the surrender order cannot be misaligned.
[45] In my view this is not required by the Act, the Treaty on Extradition between the Government of Canada and the Government of the United States of America, 3 December 1971, Can. T.S. 1976, No. 3, as am. by Can. T.S. 1991/37 (the “Treaty”), or the principle of double criminality. What is required is that the alleged conduct of the person sought, had it occurred in Canada, would warrant committal for an offence named in the Authority To Proceed.
[46] This principle is reflected in ss. 3(1)(b) and (2) of the Act:
3.(1) A person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner for the purpose of prosecuting the person or imposing a sentence on – or enforcing a sentence imposed on – the person if
(b) the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada,
(2) For greater certainty, it is not relevant whether the conduct referred to in subsection (1) is named, defined or characterized by the extradition partner in the same way as it is in Canada.
[47] These provisions are clearly conduct-based. They require that the alleged conduct, if it had occurred here, constitute an offence in Canada, not the precise offence mirroring the offences in the foreign charging document.
[48] The Treaty reflects the same approach. The basic principle is that extradition requires that the alleged conduct constitute an offence in both countries, not that it constitutes precisely the same offence. Article 2(1) puts it this way:
Article 2
(1) Extradition shall be granted for conduct which constitutes an offense punishable by the laws of both Contracting Parties by imprisonment or other form of detention for a term exceeding one year or any greater punishment.
[49] The other article in the Treaty that is relevant to this issue is Article 10(1):
Article 10
(1) Extradition shall be granted only if the evidence be found sufficient according to the laws of the place where the person sought shall be found either to justify his committal for trial if the offense of which he is accused had been committed in its territory or to prove that he is the identical person convicted by the courts of the requesting State.
[50] While less clear, this provision, read consistently with Article 2(1), requires only that the evidence said to constitute the foreign offence be sufficient to justify committal for trial in the country where the requested person is found in order for the extradition to be granted.
[51] Thus the Treaty mirrors the Act: extradition requires that the conduct alleged by the foreign state to be criminal also constitute an offence in Canada. The precise alignment of the alleged conduct, the named Canadian offence in the committal order, and the foreign offence is not necessary.
[52] Finally, the principle of double criminality does not support the appellant’s argument either. In United States of America v. McVey (1992), 77 C.C.C. (3d) 1 at 7 (S.C.C.), LaForest J., writing for the majority, made clear that from the standpoint of domestic law, extradition is a creature of statute and that Canada’s international obligations must be found in the terms of the appropriate treaty. Thus, while this principle may have value as an aid to interpreting the law, it has no freestanding effect. By itself, double criminality cannot bring the appellant success.
[53] More importantly, the principle of double criminality is to the same effect as the Act and the Treaty. It is conduct-based. In an oft-quoted passage in United States of America v. Manno (1996), 112 C.C.C. (3d) 544 at 552 (Que. C.A.), Proulx J.A. described the rules of double criminality and specialty. He described the former this way:
According to the first rule, a person can only be extradited where it has been proven that the act with which he is charged constitutes a crime under the respective laws of the two states in question, but without it being necessary that this act constitute the same identical crime in the two states.
[54] Once again, there is no requirement that the alleged conduct constitute both a foreign offence and the Canadian offence which is its precise counterpart. It is enough to satisfy double criminality if the conduct alleged by the foreign state to constitute the foreign offence also constitutes a crime in Canada.
[55] In summary, I would conclude that neither the Act nor the Treaty nor the principle of double criminality require the Minister to ensure the precise alignment of the alleged conduct, the Canadian offence in the committal order and the foreign offence as the appellant contends. The Minister can order surrender in terms of the foreign offence for which extradition is sought if the conduct alleged by the foreign state to be sufficient for the foreign prosecution has been found both admissible under the Act and sufficient, if committed here, to justify committal for a Canadian offence that corresponds to that conduct. That is exactly what happened here. The appellant’s misalignment argument must be dismissed.
[56] Even if the misalignment argument were slightly recast to suggest that, independent of the committal order, the Minister must require some correspondence between the evidence in the foreign record and the foreign charges recited in the surrender order, I think it would fail on the facts of this case.
[57] There is no doubt that the Minister has a discretion to order surrender once a person has been committed to await surrender. Section 40(1) of the Act says this:
- (1) The Minister may, within a period of 90 days after the date of a person’s committal to await surrender, personally order that the person be surrendered to the extradition partner. [Emphasis added.]
[58] However, the Minister’s discretion is not unlimited. Section 44(1)(a) of the Act sets out a limit relevant to this argument:
44.(1) The Minister shall refuse to make a surrender order if the Minister is satisfied that
(a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; …
[59] Moreover, s. 57 of the Act permits judicial review of the Minister’s decision to order surrender. The deference to be accorded by the reviewing court is significant, however. In United States of America v. Whitley (1994), 94 C.C.C. (3d) 99 at 110 (Ont. C.A.), aff’d (1996), 1996 225 (SCC), 104 C.C.C. (3d) 447 (S.C.C.), this court formulated the scope for judicial review as follows:
[I]f the Minister violates the fugitive’s constitutional rights or otherwise errs in law, or if the Minister denies the fugitive procedural fairness, acts arbitrarily, in bad faith or for improper motives, or if the Minister’s decision is plainly unreasonable, then the reviewing court is entitled to interfere; otherwise, the court should defer to the Minister’s surrender decision.
[60] The recast version of this argument raises the question of whether there is a misalignment between the evidence in the foreign record and the foreign charges sufficient to justify judicial review of the Minister’s decision to order surrender in the terms of those charges.
[61] In answering this question, the case of United States of America v. Reumayr (2003), 2003 BCCA 375, 176 C.C.C. (3d) 377 (B.C.C.A.), is helpful in suggesting that the general approach of a reviewing court should not focus on differences in details or particulars. That court found that a surrender order would be deficient if it ordered surrender in terms of foreign charges that were substantively beyond the Canadian offences supported by the evidence at the committal hearing. That court put it this way, at para. 42:
It would defeat the purpose of the committal hearing if the Minister’s discretion extended to surrender for offences substantively beyond those supported by evidence at the committal hearing.
[62] I think this approach is properly applied to a court’s review, in light of the evidence in the foreign record, of the Minister’s decision to order surrender in the terms of the foreign charges.
[63] Where the Minister chooses to do this, the complaint that the evidence in the foreign record does not sufficiently support the foreign charges can have only very limited reach, in my view. The Minister is not charged with evaluating that evidence against the counterpart Canadian charges in the Authority To Proceed. Nor is there a requirement that the Canadian charges exactly match the foreign charges, as I have attempted to explain. Moreover, the Act requires that the foreign state certify that the evidence is sufficient to justify prosecution on the foreign charges and the principle of international comity requires that this be respected.
[64] This leaves little scope for the recast misalignment argument. In my view, only where there is an absence of evidence on what would appear to be an essential element of the foreign charge in the surrender order could it be argued that the order is plainly unreasonable or unjust or oppressive, at least without an explanation of why it is not. In such circumstances it could well be plainly unreasonable to deport someone where, from Canada’s perspective, there would seem to be no possibility of a just conviction.
[65] In this case, the only counts in the surrender order that are germane to this argument are the two counts of securities fraud for which the appellant says there was no evidence in the foreign record.
[66] I disagree with this assertion. There was clear evidence of correspondence emanating from the appellant that fraudulently promoted the shares of the two companies named in those two counts. Added to the appellant’s pattern of conduct described in detail in that record it cannot be said that there is an absence of evidence of an apparently essential element of these two foreign charges.
[67] Thus, even as reframed, I think the misalignment argument must fail.
[68] I would therefore dismiss the application for judicial review.
RELEASED: February 6, 2007 “KMW” “S.T. Goudge J.A.”
“I agree K.M. Weiler J.A.”
“I agree Paul Rouleau J.A.”