United States of America v. Kissel

United States of America v. Kissel Kissel v. The Minister of Justice for Canada [Indexed as: United States of America v. Kissel]

89 O.R. (3d) 481

Court of Appeal for Ontario,

Feldman, Sharpe and Simmons JJ.A.

March 28, 2008

Criminal law -- Extradition -- Surrender order -- Minister not erring in failing to give reasons for surrender order in absence of submissions from applicant or request for reasons -- Applicant committed for extradition on charges of conspiracy to commit fraud, fraud and laundering proceeds of crime -- Attorney General stating at hearing not seeking committal on conspiracy to launder money and calling no evidence on that charge -- Record containing only passing mention of American offence of witness tampering (similar to Canadian offence of obstruction of justice) -- Extradition judge not making findings that there was sufficient evidence of those charges -- Minister erring in ordering applicant's surrender on additional charges of conspiracy to launder money and witness tampering.

The appellant and his wife controlled and operated a company which provided cosmetic medical procedures not generally covered by health insurance plans and which allegedly engaged in various schemes to defraud insurance companies by misrepresenting the nature of the procedures. The appellant was committed for extradition on charges of conspiracy to commit fraud, fraud and laundering the proceeds of crime. At the extradition hearing the Attorney General stated that he would not seek committal on charge of conspiracy to launder money. The Record of Case provided by the American authorities had only a passing reference to the American charge of witness tampering, for which the Canadian equivalent would be obstruction of justice. The Minister of Justice ordered his surrender to the United States on charges of conspiracy, mail fraud, health care fraud, witness tampering, conspiracy to launder money and engaging in monetary transactions with criminally derived property. Although the appellant had not requested reasons, he filed an application for judicial review of the surrender order based in part on the Minister's failure to give reasons. The Minister sent a letter to counsel for the appellant noting that the Attorney General had not sought committal on the offence of conspiracy to launder the proceeds of crime, but taking the position that the conduct underlying the U.S. charge of conspiracy to commit money laundering was the same conduct that the extradition judge relied upon to order committal for laundering the proceeds of crime. The Minister concluded that the fact that there was no committal on conspiracy to launder the proceeds of crime, which would be an exact match to the U.S. offence of conspiracy to commit money laundering, was no impediment to the Minister's decision to surrender on that offence. The appellant appealed the committal order and applied for judicial review of the surrender order.

Held, the appeal should be dismissed; the application for judicial review should be allowed in part.

The extradition judge properly concluded that the evidence was sufficient to meet the test for committal on the three corresponding offences.

In the absence of any submissions or a request for reasons, the Minister was not obligated to give reasons for his surrender order. The Minister is not required [page482] to guess at what objections or issues the appellant might have raised had he made submissions, and then respond as if such objections had been raised. Even if the Minister was required to give reasons, the appellant would at best only be entitled to an order remitting the matter to the Minister for further consideration and reasons. As the Minister had now provided reasons, there was no basis for making such an order at this point.

The Attorney General did not call evidence regarding a conspiracy to launder money, presumably because the appellant's wife would be the only possible co-conspirator, which would be barred under Canadian law. The judge made no findings that could support a committal on that charge and the record did not provide a basis upon which the Minister could order the appellant's surrender for conspiracy to launder money. Although some aspects of the evidence relating to the fraud might be relevant to witness tampering, there was only slight reference to that offence in the Record of the Case submitted by the Americans. The judge made no findings that could support a committal on witness tampering. In the absence of an evidentiary foundation, the Minister had no power to order the appellant's surrender on those offences. The part of the surrender order relating to those charges should be set aside.

APPEAL from the order of committal made by Beaulieu J. of the Superior Court of Justice, dated November 30, 2006, for extradition; APPLICATION for judicial review of the surrender order made by the Minister of Justice dated March 5, 2007, with further reasons dated July 30, 2007.

Cases referred to Idziak v. Canada (Minister of Justice), 1992 CanLII 51 (SCC), [1992] 3 S.C.R. 631, [1992] S.C.J. No. 97, 97 D.L.R. (4th) 577, 144 N.R. 327, 59 O.A.C. 241, 9 Admin. L.R. (2d) 1, 77 C.C.C. (3d) 65, 17 C.R. (4th) 161, 12 C.R.R. (2d) 77, 36 A.C.W.S. (3d) 718, 17 W.C.B. (2d) 572; Maisonneuve v. Canada (Minister of Justice), [2006] Q.J. No. 4054, 2006 QCCA 977, [2006] R.J.Q. 2299, J.E. 2006-1592, 71 W.C.B. (2d) 815; R. v. Bowles, 1985 ABCA 185, [1985] A.J. No. 1056, 40 Alta. L.R. (2d) 1, 62 A.R. 167, 21 C.C.C. (3d) 540 (C.A.); R. v. Hawke (1975), 1975 CanLII 672 (ON CA), 7 O.R. (2d) 145, [1975] O.J. No. 2200, 22 C.C.C. (2d) 19, 29 C.R.N.S. 1 (C.A.); United States v. Ferras, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 2006 SCC 33, 268 D.L.R. (4th) 1, 351 N.R. 1, J.E. 2006-1461, 209 C.C.C. (3d) 353, 39 C.R. (6th) 207, 143 C.R.R. (2d) 140, 69 W.C.B. (2d) 711, EYB 2006-107828; United States of America v. Gorcyca, [2007] O.J. No. 395, 2007 ONCA 76, 220 O.A.C. 35, 216 C.C.C. (3d) 403, 73 W.C.B. (2d) 120 Statutes referred to Canadian Charter of Rights and Freedoms Criminal Code, R.S.C. 1985, c. C-46, ss. 380 [as am.], 462.31 [as am.], 465 [as am.] Extradition Act, S.C. 1999, c. 18, ss. 15, 19 Immigration Act, R.S.C. 1985, c. I-2 [rep.] United States Code, Title 18, ss. 317, 1341, 1342, 1347, 1512(b)(2),(3), 1956(h), 1957

Gregory Lafontaine and Vincenzo Rondinelli, for appellant/ applicant. Nancy Dennison and Heather J. Graham, for Attorney General on behalf of respondent United States of America and Minister of Justice for Canada. [page483]

The judgment of the court was delivered by

[1] SHARPE J.A.: -- This is an appeal from an order of committal for extradition on charges of conspiracy to commit fraud, fraud, and laundering the proceeds of crime, and an application for judicial review of the Minister's subsequent order of surrender to the United States on charges of conspiracy, mail fraud, health care fraud, witness tampering, conspiracy to launder money and engaging in monetary transactions with criminally derived property. Both the appeal and the application for judicial review turn on the sufficiency of the evidence and of the reasons of the extradition judge when making the committal order and of the Minister of Justice when making the surrender order. For convenience, I will refer to the appellant/applicant as the appellant.

Facts

[2] The evidence against the appellant is contained in the Record of the Case ("RoC"), drafted by an inspector with the United States Postal Inspection Service. The RoC recites the results of an investigation against the appellant, his wife and several others in relation to allegations of an elaborate health insurance fraud.

[3] The appellant and his wife, Sonia LaFontaine, controlled and operated a company called LaFontaine Rish Medical Associates ("LRMA"). LRMA provided cosmetic medical procedures not normally considered medically necessary and therefore not usually covered by health insurance plans. It is alleged that LRMA submitted numerous claims to health insurance companies for payment of cosmetic procedures by having doctors in its employ falsely certify that such procedures were medically necessary, or by falsely describing them as medically necessary procedures. It is also alleged that LRMA submitted claims that included certifications that certain procedures had been performed by physicians, when the procedures were either not actually performed, or performed by non-physician LRMA employees, such as the appellant's wife.

[4] The evidence summarized in the RoC is based upon evidence from LRMA patients; staff involved in LRMA's administration or in its provision of medical procedures; physicians employed by LRMA whose signed certifications appear on the allegedly fraudulent claims; and examination of relevant documents, including the claims and records of the insurance companies.

[5] It is also alleged that when the appellant and his wife became aware that they were under investigation for fraud and were served with a grand jury subpoena, they shredded patient [page484] files, claim forms, and other documents and created documents to alter the description of procedures or the identities of patients. The investigator's review of LRMA bank records indicated that at about the same time, large sums of money were transferred from LRMA's New York bank accounts and it is alleged that these transfers included moneys obtained as a result of the alleged fraud.

[6] The United States submitted a First Supplemental Record of the Case in October 2005, which set out the content of the guilty plea "allocution" of facts admitted by Dr. Benito Rish, who was involved with the appellant in operating LRMA. American prosecutors attempted to introduce this plea allocution as evidence in the trial of the appellant's wife -- who was convicted -- but the United States Supreme Court ultimately ruled it inadmissible. In an accompanying letter, the U.S. prosecutor explained that he anticipated he would call Dr. Rish as a witness at the appellant's trial. Dr. Rish died in Nov. 2007, and the appellant applies to submit proof of his death as fresh evidence.

[7] The appellant also wishes to introduce as fresh evidence an affidavit from the appellant's U.S. counsel stating that she has received an affirmation from Dr. Zizza -- a physician employed by LRMA and a significant witness mentioned in the RoC -- as well as a letter from Dr. Zizza's former attorney, which indicate that he suffers from cognitive problems that render him incapable to testify at trial.

Procedural History

[8] This is yet another case with a deplorably protracted and lengthy history that is entirely inconsistent with the purpose and intent of the extradition scheme.

[9] The appellant entered Canada on a tourist visa in February 1998 and was arrested pursuant to the Immigration Act, R.S.C. 1985, c. I-2 in April 1998. Immigration proceedings concluded in October 2001 with the finding that the appellant was inadmissible on the grounds that he was suspected of committing a serious criminal offence outside of Canada. The Minister of Justice issued an Authority to Proceed under the Extradition Act, S.C. 1999, c. 18, in July 2001 for the offences corresponding to: conspiracy to commit fraud (ss. 380(1) and 465(1)(c) of the Criminal Code, R.S.C. 1985, c. C- 46); fraud (s. 380(1); conspiracy to launder the proceeds of crime (s. 462.31 and 465(1)(c); and laundering the proceeds of crime (s. 462.31). The appellant was arrested for extradition in September 2001. The extradition proceedings were, however, held in abeyance pending the appellant's [page485] unsuccessful attempt to quash the Authority to Proceed in the Federal Court, which was not finally concluded until the Supreme Court of Canada denied leave to appeal in April 2006.

[10] The extradition hearing commenced before Gans J. in April 2006. At that time, the Attorney General indicated that he was not seeking committal for conspiracy to launder the proceeds of crime, presumably because the only other suspected party to the conspiracy was the appellant's wife. Justice Gans made several rulings and decisions that the parties acknowledged to be binding, and the hearing itself proceeded before Beaulieu J. (the "extradition judge") in October 2006.

[11] The extradition judge found that the RoC contained evidence of a scheme to defraud insurance companies, which involved the appellant, his wife, and other employees, doctors and patients at LRMA. He found that there was evidence that the appellant, as one of the directing minds of LRMA, was a personally involved principal behind this fraud who signed forms and engaged in conversations with patients and witnesses concerning fraudulent insurance claims. There was evidence from patients and employees, corroborated by billing records, patient files, and other documents obtained from LRMA and insurance companies, that false insurance claim forms were routinely submitted to insurers. The extradition judge observed that the RoC's evidence includes insurance forms and other documents obtained from health insurance companies that indicate payments on fraudulent claims, as well as bank records that reveal deposits from cheques of such insurance companies into bank accounts belonging to the appellant and his wife. The RoC states that bank records also document various wire transfers of funds from New York bank accounts to Toronto bank accounts controlled by the appellant and his wife, which took place after deposits of more than $10,000 in payments on claims believed to be fraudulent.

[12] The extradition judge dismissed the appellant's application to stay the proceedings as an abuse of process, and made an order committing the appellant for extradition on the offences corresponding to the following Canadian Criminal Code offences: conspiracy to commit fraud (ss. 380(1) and 465(1) (c)); fraud (s. 380(1)); and laundering the proceeds of crime (s. 462.31).

[13] Following the order of committal, the appellant made no submissions to the Minister of Justice. Because the appellant had submitted a refugee claim, the Minister consulted with the Minister of Citizenship and Immigration, and provided the results of the consultation to the appellant's counsel in February 2007. [page486] The Minister ordered the appellant's surrender in March 2007 on the following offences under Title 18 of the United States Code: one count of conspiracy to violate the laws of the United States (s. 317); nine counts of mail fraud (ss. 1341-42); one count of health care fraud (s. 1347); one count of witness tampering (ss. 1512(b)(2), (3)); one count of conspiracy to commit money laundering (s. 1956(h)); and four counts of engaging in monetary transactions with criminally derived property (s. 1957).

[14] Although the appellant did not request reasons, he filed an application for judicial review in April 2007, based in part on the Minister's failure to provide such reasons. The Minister then sent the appellant's counsel a letter in July 2007 explaining his reasons for ordering surrender.

[15] The Minister explained that he ordinarily did not provide reasons in the absence of submissions, but that he had decided to provide reasons in response to the appellant's application for judicial review on the basis that no reasons were provided. The Minister stated that he had concluded after careful review that surrender would not be inconsistent with the Extradition Act, the U.S.-Canada extradition treaty, or the Canadian Charter of Rights and Freedoms.

[16] The Minister noted that in determining which offences to surrender on, he must be satisfied that the conduct underpinning the U.S. offences for which surrender is being ordered would be criminal under Canadian law, but it is unnecessary that the Canadian offences have the same name or legal elements as the offences charged in the U.S. The Minister stated that he was aware that the Attorney General did not seek committal on the offence of conspiracy to launder the proceeds of crime, but the Minister took the position that the conduct underlying the U.S. charge of conspiracy to commit money laundering was the same conduct that the extradition judge relied upon to order committal for laundering the proceeds of crime. The Minister concluded that the fact that there was no committal on conspiracy to launder the proceeds of crime, which would be an exact match to the U.S. offence of conspiracy to commit money laundering, was no impediment to the Minister's decision to surrender on this offence.

[17] The appellant has raised a long list of issues in relation to the committal order. In my view, those issues are without merit and accordingly, my reasons for disposing of those issues will be brief. However, as I will explain, I agree with the appellant that there was no authority for the Minister to make a surrender order in relation to conspiracy to launder money and witness tampering and that the appellant is entitled to judicial review quashing that aspect of the surrender order. [page487]

Issues

[18] The appellant's issues can be conveniently grouped into the following four categories: (1) Did the extradition judge properly conclude that the evidence was sufficient to meet the test for committal on the three corresponding offences? (2) Was the Minister obligated to give reasons for his surrender decision even though the appellant chose not to make submissions, and should the court regard as reasons the letter he sent to the appellant after learning of the application for judicial review? (3) Should this court grant judicial review on the ground that the Minister ordered the appellant's surrender on conspiracy to launder money and witness tampering, even though the appellant was not committed on the Canadian offences that normally correspond to conspiracy to launder money and witness tampering? (4) Fresh evidence concerning the incapacity and unavailability of anticipated witnesses.

Analysis

1. Did the extradition judge properly conclude that the evidence was sufficient to meet the test for committal on the three corresponding offences?

(a) Application of United States v. Ferras, [2006 SCC 33](https://www.minicounsel.ca/scc/2006/33), [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33

[19] I do not accept the submission that the extradition judge erred by interpreting United States v. Ferras to require a two-stage analysis of the reliability and the sufficiency of the evidence for committal. In my view, the extradition judge's approach was consistent with the following passage from Ferras at paras. 36-38:

[T]his requires the judge to determine two matters: (1) what evidence is admissible under the Act; (2) whether the admissible evidence is sufficient to justify committal.

The inquiry into admissibility of the evidence depends on the nature of the evidence. In the Ferras appeals, the question is whether the "record of the case" meets the certification requirements of s. 33. If so, it is admissible . . . [page488]

The inquiry into sufficiency of the evidence to commit for extradition involves an evaluation of whether the conduct described by the admissible evidence would justify committal for trial in Canada . . .

[20] The appellant submitted that this RoC is deficient in that much of the evidence is general and there are evidentiary gaps that prevent a court from making the necessary findings. I agree that the RoC could have been prepared in a manner that more clearly set out the factual basis for each offence charged. However, taken as a whole, the RoC is sufficient to allow the court to be able to make the necessary findings under the Act.

(b) Admissibility of the second supplemental record of the case

[21] The appellant argues that the Second Supplemental Record was inadmissible because it was certified in accordance with the treaty's present certification requirements in amended Art. 10(2), and this amendment did not come into force until long after the United States had made its extradition request. I would not give effect to this argument. The appellant failed to raise this argument at the committal hearing; in any event, as the Second Supplementary Record contains only the full names of individuals who are identified by their initials in the RoC, its use could not have had any material effect on the committal decision.

(c) Evidence of fraud

[22] The appellant submits that the RoC contains no evidence that any of the insurance companies actually made payments on the allegedly fraudulent claims submitted by the appellant and that, at most, the evidence established a prima facie case of attempted fraud.

[23] I am unable to accept this submission. I agree with the respondent that the RoC contains some evidence from which an inference could be drawn that some of the allegedly fraudulent claims were in fact paid. I refer in particular to the investigator's assertion that he has reviewed numerous documents, including claim forms submitted by LRMA, insurance company records, and LRMA banking records revealing in excess of $280,000 in deposits representing payment for claims believed to be fraudulent. To this, I would add an obvious point: there is ample evidence that LRMA submitted a large volume of allegedly fraudulent claims over a period of several years. The suggestion that LRMA would have continued to submit these claims in the absence of any payment strikes me as utterly implausible. [page489]

[24] Nor am I able to accept the submission that there was no evidence of the appellant's involvement in the fraudulent claims. I note in particular the RoC's references to evidence from LRMA employees (e.g., Marisol Salichs) and patients (e.g., Luz Jerez and Mariana Cardona) concerning the appellant's role in LRMA. This evidence directly links the appellant to the preparation and submission of false claims. There is also evidence of the appellant's exercise of authority in relation to LRMA's financial and banking activities and of the appellant's conduct in destroying and altering records once it became clear that LRMA was under investigation.

[25] The appellant relies on the Supreme Court of the United States' subsequent holding in a related proceeding that the "plea allocution" of Dr. Rish is inadmissible. However, even without this plea allocution, the RoC contains ample evidence from other sources from which an inference can be drawn that fraudulent claims were submitted, that fraudulent claims were paid, and that the appellant was personally involved in the scheme.

(d) Evidence of conspiracy to commit fraud

[26] I agree with the respondent that the extradition judge's use of the term "fraudulent scheme" to describe the alleged agreement is of no consequence, and that he applied the correct test regarding this offence.

[27] The appellant argues that the extradition judge erred in finding that there was sufficient evidence to commit on the corresponding offence of conspiracy to commit fraud. I agree with the respondent that there was evidence from which an inference could be drawn that the appellant participated in an alleged conspiracy to commit fraud with several other persons besides the appellant's wife; namely, LRMA physicians, staff members and patients.

(e) Evidence of laundering the proceeds of crime

[28] The appellant submits that there was no evidence that any of the bank accounts allegedly used to launder money obtained from the fraudulent medical claims were under the joint control of the appellant and his wife. The appellant also argues that in order to link the appellant to the Toronto TD Bank account, the extradition judge relied on bank records ruled inadmissible by Justice Gans and that once this evidence is removed from consideration, there is insufficient evidence to support committal on laundering the proceeds of crime. [page490]

[29] I disagree. There was ample admissible evidence that the appellant had control over the accounts in New York and that he was involved in transferring illegally obtained funds from these accounts with the intent to conceal such funds. I refer here to evidence of the appellant's role as owner and operator of LRMA; the appellant's role as signatory on LRMA's bank accounts; records of deposits into New York bank accounts controlled by the appellant and his wife that were identified as payments on allegedly fraudulent insurance claims; bank records of wire transfers of large sums of money from New York bank accounts to bank accounts controlled by the appellant and his wife, which occurred after money was paid on claims believed to be fraudulent, and one of which occurred soon after the appellant met with fraud investigators; and bank records indicating that the appellant and his wife opened a second New York bank account under a different corporate name, into which they wired large sums.

[30] The coincidences in the timing of the wire transfers and the opening of the second U.S. account in relation to the onset of investigations and requests for documents by health insurance companies and then a grand jury, is also some evidence from which an intent to launder property obtained by crime could be inferred.

(f) Overall sufficiency of the reasons for committal

[31] In light of the foregoing analysis, I conclude that there is no merit to the submission that the extradition judge failed to provide adequate reasons for his committal order. Nor do I see any merit to the appellant's submission that the extradition judge's reasons were deficient because they did not focus on the issues that Justice Gans had identified in a two- page aide memoire, which he entered as an exhibit during the pre-hearing proceedings. The extradition judge's reasons appear to follow this outline and the appellant cannot point to any specific place in the reasons that suggest otherwise. In any case, I agree with the respondent that the aide memoire was not a binding document. Consequently, even if the appellant could prove that either the extradition judge or the Minister ignored it, this would be insufficient to constitute reversible error.

[32] In my view, the extradition judge provided a detailed assessment of the evidence and properly identified the basis for his decision to commit the appellant on the specified charges. As such, the order of committal against the appellant should be upheld in its entirety. [page491]

2. Was the Minister obligated to give reasons for his surrender decision even though the appellant chose not to make submissions, and should the court regard as reasons the letter he sent to the appellant after learning of the application for judicial review?

[33] I do not accept the appellant's submission that, in the absence of any submissions or a request for reasons, he is entitled to an order for judicial review setting aside the Minister's sending order. The Minister's decision to order surrender was described in Idziak v. Canada (Minister of Justice), 1992 CanLII 51 (SCC), [1992] 3 S.C.R. 631, [1992] S.C.J. No. 97, at para. 54, as situated "at the extreme legislative end of the continuum of administrative decision-making". A ministerial decision of this nature is plainly distinguishable from a decision provided at the conclusion of a contested administrative hearing or trial where evidence has been led, submissions have been made and issues have been identified for resolution. Here, the appellant failed to raise any issue with the Minister, and in the absence of submissions, I fail to see how the Minister would know what questions he should respond to or attempt to resolve. The Minister would have to guess at the potential objections to his surrender decision and any reasons he offered would be given in a vacuum.

[34] I agree with the following analysis of the Quebec Court of Appeal in Maisonneuve v. Canada (Minister of Justice), [2006] Q.J. No. 4054, 2006 QCCA 977, at paras. 27-28, 31-32:

If the person sought does not exercise this right [to make submissions] conferred by the Act, the Minister will only have the extradition file at his or her disposal. Even without the submissions of the person sought, the Minister must still ensure that the surrender should not be refused under the Act. For example, if the file satisfies the Minister that extradition would be unjust or oppressive (s. 44(1)(a) of the Act) or that prosecution is barred by prescription under the law of the extradition partner (s. 46(1)(a) of the Act), an extradition order must not be made. On the other hand, without the insight provided by submissions from the person sought, the record may not reveal certain facts that could cause the Minister to refuse to order surrender.

Whatever the situation, the Minister must ensure compliance with the Act in light of the facts brought to his or her knowledge. But this does not necessarily mean that the Minister is always obliged to provide reasons for his or her decision when the person sought has made no submissions. In any case, the failure to give reasons does not mean that the Minster has not studied the file before making the decision; in my view, it should be taken as a given unless the circumstances of the case suggest the contrary, which is not the situation here. . . . . . [page492]

Although an administrative tribunal generally should give reasons for its decisions, the fact remains that applicants should first address the administrative tribunal and request reasons before seeking judicial review of a decision on the grounds that reasons were not provided: Marine Atlantic Inc. v. Canadian Merchant Service Guild, 2002 FCT 939, [2002] F.C.J. No. 1217 (F.C.A.).

It is not necessary here to decide whether the Minister should have provided reasons for his first decision, because he did render a decision giving reasons when the applicants sent him their submissions ... at which time he took the submissions into account. It therefore appears that the issue raised by the applicants is moot because, after having seen that no reasons were given, they addressed the Minister, who subsequently rendered a decision giving reasons. The spirit of the procedure suggested by the Federal Court of Appeal in Marine Atlantic Inc., supra, was complied with, and this ground should be dismissed.

[35] In any event, even if this argument were accepted, the appellant would at best only be entitled to an order remitting the matter to the Minister for further consideration and reasons. As the Minister has now provided reasons, there is no basis for making such an order at this point. The situation here is readily distinguishable from those arising in cases such as R. v. Bowles, 1985 ABCA 185, [1985] A.J. No. 1056, 21 C.C.C. (3d) 540 (C.A.), and R. v. Hawke (1975), 1975 CanLII 672 (ON CA), 7 O.R. (2d) 145, [1975] O.J. No. 2200, 22 C.C.C. (2d) 19 (C.A.), where reasons were issued or modified after a litigant had initiated appeal proceedings. Until the application for judicial review, the Minister had no idea as to the grounds on which the appellant wished to challenge the sending order's issuance, and no appearance of bias or unfairness can arise in these circumstances.

3. Should this court grant judicial review on the ground that the Minister ordered the appellant's surrender on conspiracy to launder money and witness tampering, even though the appellant was not committed on the Canadian offences that normally correspond to conspiracy to launder money and witness tampering?

[36] I agree with the appellant that on this record, in the absence of committal on Canadian offences embracing conduct that amounts to conspiracy to launder money and witness tampering, the Minister had no power to order the appellant's surrender on those offences.

[37] It would appear that the Attorney General did not seek committal on conspiracy to launder the proceeds of crime because there was no evidence of any agreement by the appellant to launder money with anyone other than the appellant's wife, who could not be the appellant's sole co-conspirator as a matter of Canadian law. [page493]

[38] The respondent argues that the Extradition Act, ss. 15 and 19, does not require that the Authority to Proceed or the committal order make any reference to the foreign charges. The respondent furthermore observes that neither the extradition treaty nor the principle of double criminality require that the offences in the committal order and the foreign offences named in the surrender order possess precisely the same name or elements, so long as the conduct captured by the corresponding Canadian offences includes the conduct that constitutes the foreign offences for which the surrender order is made. The respondent argues that the extradition judge ordered committal for laundering the proceeds of crime, and the conduct supporting committal on this offence also entails the conduct required for the offence of conspiracy to commit money laundering.

[39] I accept the submission that the test for surrender is conduct-based, but I fail to see how that supports surrender on the charges of conspiracy to launder money and witness tampering. In United States of America v. Gorcyca, 2007 ONCA 76, [2007] O.J. No. 395, 216 C.C.C. (3d) 403 (C.A.), at para. 64, this court held that a surrender order is presumptively unreasonable "where there is an absence of evidence on what would appear to be an essential element of the foreign charge in the surrender order". An essential element of the conduct required for conspiracy is an agreement to commit a substantive offence. After abandoning his request to commit the appellant for conspiracy to launder the proceeds of crime, the Attorney General made no effort at the committal hearing to lead evidence of an agreement to engage in money laundering. Consequently, the extradition judge did not make a finding that there was sufficient evidence of such an agreement. An essential element of conduct required to support conspiracy -- namely, an agreement to commit an unlawful act -- cannot be found in or derived from evidence that establishes only that the accused engaged in the unlawful act.

[40] Similarly, the Attorney General did not seek committal for the Canadian offence corresponding to witness tampering and there is only a passing reference in the RoC to interference with a witness. The respondent argues that witness tampering is part and parcel of the conduct captured by the fraud committal as the RoC alleges in relation to one of the fraud allegations that the appellant told a patient to mislead investigators. I disagree. Witness tampering -- or, in Canadian terms, obstruction of justice -- involves conduct that is quite different and distinct from fraud. In my opinion, the committal for fraud does not include a finding that there was sufficient evidence of witness tampering to justify committal. [page494]

4. Fresh evidence concerning the incapacity and unavailability of anticipated witnesses

[41] The appellant submits that the evidence concerning Dr. Rish's death and Dr. Zizza's mental incapacity demonstrate the unavailability of the evidence of both witnesses and goes to the heart of the case, and may therefore lead to different decisions on committal and surrender.

[42] I agree with the respondent that the proposed fresh evidence should be rejected because it is incapable of affecting the result of either of the decisions under review. In my view, there is ample evidence apart from that of Drs. Rish and Zizza (accepting for the purpose of argument that Dr. Zizza is in fact mentally incapable of testifying) to support the committal.

Conclusion

[43] For these reasons, I would dismiss the appeal from the committal order, but allow the application for judicial review to the following extent only: insofar as the surrender order purports to surrender the appellant on charges of conspiracy to commit money laundering or witness tampering, those parts of the order should be set aside. Otherwise, I would dismiss the application for judicial review and uphold the surrender order.

Appeal dismissed; application allowed in part.