CITATION: United States of America v. Singh, 2009 ONCA 247
DATE: 20090319
DOCKET: C46074 and C47018
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Rosenberg and Goudge JJ.A.
BETWEEN
The United States of America and The Minister of Justice and Attorney General of Canada
Respondent
and
Yadwinder Singh aka Goldy aka Yadwinder Dhillon
Appellant
John Norris for the appellant
Richard Kramer for the respondent
Heard: February 24, 2009
On appeal from committal by Justice Bonnie J. Wein of the Superior Court of Justice dated October 17, 2006 and for judicial review of the decision of the Minister of Justice dated April 24, 2007.
By the Court:
[1] The appellant appeals from his committal for surrender to the United States by Wein J. for the offence of conspiracy to traffic in cannabis (marijuana). He also applies for judicial review of the decision of the Minister of Justice ordering his surrender on the extradition request. At the conclusion of argument the court dismissed the appeal from committal and the application for judicial review. These are our reasons for those decisions.
THE APPEAL FROM COMMITTAL
[2] The only ground of appeal argued on the appeal from committal is based on the appellant’s application to admit fresh evidence. After the appellant’s committal, he came into possession of records of two interviews with one of the prosecution’s main witnesses, Gerald McPherson. These records were disclosed as a result of parallel proceedings brought by the Attorney General of Ontario under the Civil Remedies Act, 2001, S.O. 2001 c. 28.
[3] The first interview, which appears to be no more than a proffer of evidence by McPherson, closely matches the testimony McPherson was expected to provide as set out in the Record of the Case. The second interview, which is a transcript of a recorded interview with McPherson, contains some details that are inconsistent with the proffer and hence the Record of the Case. However, the core of McPherson’s story remains the same. He explains the appellant’s role in the conspiracy to export marijuana to the United States including his involvement in the shipment of the drugs and the payments to McPherson for transporting the drugs. The inconsistencies in the details between the two versions are not such as to doubt the availability of the evidence for trial: United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77, at para. 58. Nor could it be said that McPherson’s proposed evidence has been shown to be manifestly unreliable despite the gaps or inconsistencies in the story as it is revealed in the second interview, especially as to how many times McPherson met with the appellant. Even in the second interview, McPherson provides evidence that cogently implicates the appellant in a conspiracy to export large quantities of marijuana into the United States.
[4] In our view, the proposed fresh evidence would not have affected the disposition by the committing judge. Accordingly, we would not admit that evidence. The appeal from committal is dismissed.
THE JUDICIAL REVIEW
Article 17 bis
[5] The applicant is not a citizen of Canada and accordingly has no constitutional right to remain in Canada under s. 6 of the Charter of Rights and Freedoms. He thus has no right to a review in accordance with the factors set out in United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469. The applicant submits, however, that Article 17 bis of the Treaty of Extradition between Canada and the United States of America, Can. T.S. 1991 No. 37, gives him a comparable right to have the Minister of Justice conduct a review to determine whether he should be prosecuted in Canada rather than the United States. The applicant submits that it is apparent that the Minister did not conduct such a review.
[6] We would not give effect to this submission. We have serious doubts that Article 17 bis confers any rights on the accused. However, we need not decide that issue since the applicant has not demonstrated that the Minister did not conduct the review. The fact that the Minister authorized that the extradition proceed, and as the Attorney General did not launch a domestic prosecution, is itself some indication that the decision was made not to submit the case to Canadian authorities for the purpose of prosecution.
[7] Further, in his Reasons for Surrender, the Minister, while denying that the Article 17 bis confers any rights on the applicant, went on to explain why he had decided to order the applicant’s extradition. He identified some of the very factors listed in Article 17 bis such as the respective interests of the Contracting Parties and the availability of the evidence.
Failure to seek assurances
[8] The applicant submits that the Minister erred in ordering the applicant’s surrender without seeking assurances from the United States that upon completion of any criminal proceedings the applicant would be able to return to Canada, rather than being deported to India. The Minister stated that such assurances are not necessary to protect the applicant’s right to fundamental justice. The Minister also considered that an attempt to obtain such assurances would constitute an improper interference with the sovereignty of the United States. The applicant has not shown that this was an unreasonable exercise of the Minister’s discretion. In that respect we note that the applicant was already under a deportation order in Canada and that his claim for refugee status had been rejected.
Refusal to delay surrender
[9] The applicant sought delay of his surrender until the forfeiture proceedings launched by the Attorney General of Ontario under the Civil Remedies Act, 2001 had been disposed of. The applicant points out that he has continuously asked the Attorney General to expedite those proceedings. He submits that if he is deported to the United States he will be unable to adequately defend against proceedings. It is indeed unfortunate that the Attorney General of Ontario having launched these proceedings has been unable to speedily prosecute them. However, whether to delay extradition is a matter of discretion, and we have not been persuaded that the Minister did not exercise his discretion reasonably. The applicant has not provided any evidence as to how his ability to adequately defend those proceedings would be compromised. In our view, mere assertions that he would not be able to instruct counsel or present relevant evidence without any explanation as to what evidence would be unavailable cannot demonstrate that the Minister’s decision was unreasonable. In the circumstances, the Minister was entitled to give preference to the interest in an expeditious extradition process.
Request for reconsideration
[10] The request for reconsideration turns on the availability of the fresh evidence dealt with in the appeal. In view of our conclusion concerning the cogency of that evidence, we cannot say that the Minister erred in refusing to reconsider his decision.
DISPOSITION
[11] Accordingly, the appeal from committal and the application for judicial review are dismissed.
Signed: “Dennis O’Connor A.C.J.O.
“M. Rosenberg J.A.”
“S. T. Goudge J.A.”
RELEASED: “DOC” March 19, 2009