United States of America v. Barbu, 2010 ONCA 891

DATE: 20101221

DOCKET: C52379

COURT OF APPEAL FOR ONTARIO

Before: MacPherson, Sharpe and MacFarland JJ.A.

The Attorney General of Canada on Behalf of the United States of America

Respondent

and

Jonjel Barbu

Applicant

Counsel: Brian H. Greenspan and Jill D. Makepeace for the applicant Richard Kramer and Monika Rahman for the respondent

Heard: October 1, 2010

An application for judicial review from the surrender order of the Minister of Justice dated May 6, 2010.

MacFarland J.A.:

OVERVIEW

[1] On June 2, 2008, the applicant, Jonjel Barbu, a Canadian citizen, was indicted by a Grand Jury in the United States District Court for the Eastern District of Pennsylvania and charged with:

1. Conspiracy to import 1000 kg or more of marijuana contrary to Title 21, U.S.C., Sections 952(a), 960(a), 960(b)(1)(G) and 963.

2. Conspiracy to transport and transfer monetary instruments and funds of approximately $2 million USD with intent to promote the conspiracy to import marijuana contrary to Title 21, U.S.C., Sections 952 and 960, in violation of Title 18, U.S.C., section 1956(a)(2)(A); and

3. Knowingly attempting to transport, transmit, and transfer, and aiding and abetting the attempt to transport, transmit and transfer monetary instruments and funds that is, approximately $407,440 USD from a place in the United Sates to Canada contrary to Title 21, U.S.C., sections 952(a), 960(a) and 963 and Title 18, U.S.C., sections 2 and 1956(a) 2(A).

[2] By diplomatic note dated May 8, 2008, the United States formally requested the applicant’s extradition to stand trial in Pennsylvania on the offences set out above.

[3] On September 25, 2008, an Authority to Proceed (ATP) was issued authorizing representatives of the Attorney General of Canada to seek the applicant’s committal for Canadian offences corresponding to this conduct, namely:

1. Importing a Schedule II controlled substance, contrary to section 6 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19; and

2. Possession of property obtained by crime, contrary to section 354 of the Criminal Code, R.S.C. 1985, c. C- 46.

[4] The applicant was arrested on an extradition warrant in October, 2008. On December 10, 2009, he consented to his committal and was subsequently committed for extradition by O’Marra J. on that date for the offences set out in the ATP. No appeal was taken from the extradition order.

[5] On January 11, 2010, the applicant, through his counsel, made written submissions to the Minister of Justice regarding his surrender, pursuant to s. 43(1) of the Extradition Act, S.C. 1999, c. 18. He did not contest his surrender. Instead he asked the Minister to seek assurances that should he be convicted, he would only be sentenced for conduct expressly contained in the surrender order, and that all aggravating factors on sentencing be established beyond a reasonable doubt.

[6] The Minister ordered the applicant’s surrender on his criminal conduct articulated in terms of the U.S. offences for which the United States had requested extradition. The Minister declined to seek the assurances requested by the applicant.

[7] The applicant seeks judicial review of the Minister’s decision. He argues that the Minister erred in ordering his surrender on the offences contained in the United States indictment rather than for the Canadian offences set out in the Authority to Proceed and the Committal Order. He also argues that the Minister erred in failing to seek the assurances he requested. He submits that the Minister’s decision is unreasonable.

[8] The Crown argues that the applicant is simply attempting to relitigate the issues already settled by the Supreme Court of Canada in its recent decision in Canada (Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170.

THE FACTS

[9] The Record of the Case and Supplemental Record of the Case filed in support of the extradition request set out the facts relied upon. Robert J. Livermore, Trial Attorney, United States Department of Justice, Organized Crime and Racketeering Section has certified that the evidence summarized therein or contained in attached documents is both available for trial and is sufficient under the laws of the United States to justify prosecution. No issue is taken with Mr. Livermore’s statement.

[10] In the Overview of the Record of the Case the nature of the allegations against the applicant is stated:

Jonjel Barbu has been charged with various crimes relating to a conspiracy to import large amounts of marijuana into the United States from Canada and the laundering of the proceeds from the sale of these drugs back into Canada. These charges follow an investigation by the Drug Enforcement Administration (“DEA”) which revealed that between on or about January 1, 2004, and October 23, 2006, Jonjel Barbu was a commercial truck driver and a member of a criminal conspiracy that imported illegal drugs into the United States from Canada, distributed the illegal drugs in the United States, and then laundered the proceeds from the sale of these illegal drugs to Canada in order to promote the importation conspiracy. The conspiracy was headed by a Canadian drug dealer, Quoc Diep. Other members of the criminal group included Quoc Diep’s couriers, which included Jonjel Barbu and Ivo Banovic, and his U.S. – based customers, which included Lien Dam, Nguyen Ly and Hang Le. Lien Dam, Nguyen Ly and Hang Le have all pleaded guilty to their drug dealing activities and are cooperating with the DEA.

[11] Particulars of the involvement of the applicant in the conspiracy are set out in the Summary of Evidence, in the Record of the Case in paras. 1 and 2 and in the Supplemental Record of the Case in paras. 6, 7, 8, 9 and subpara. (c) of para. 13. What follows is an overview of these facts.

[12] The evidence discloses that in June 2005, the applicant, who was a commercial truck driver, smuggled a large quantity of marijuana into the United States using his commercial tractor trailer. He delivered the shipment (approximately 100 pounds of marijuana) from Quoc Diep in Canada to Lien Dam in Philadelphia. In exchange, Lien Dam gave the applicant $200,000 USD in drug proceeds to take back to Quoc Diep in Canada. A few days later, the applicant returned to Philadelphia where he received a further $200,000 USD from Lien Dam. The money was from the sale of illegal drugs and was to be delivered to Quoc Diep in Canada.

[13] On June 23, 2005, DEA Special Agent Carl Rideout observed Lien Dam give the applicant a large bag. Special Agent Rideout contacted the Pennsylvania State Police who later stopped the applicant’s truck for a traffic violation. During the traffic stop, Special Agent Rideout positively identified the applicant by his Canadian identification card and seized $407,440 USD – the money given to the applicant by Lien Dam to give to Quoc Diep in Canada as payment for the marijuana shipment.

[14] In short, the applicant is alleged to have participated in a drug importing conspiracy, occupying the role of drug and proceeds of crime courier.

THE EXTRADITION PROCEDURE

[15] In Fischbacher, Charron J. gave a very helpful review of all stages of Canada’s extradition procedure in paras. 23 through 56 of the decision. She began by describing double criminality which she described as “a fundamental principle of the extradition process codified by the [Extradition Act].”

[16] Double criminality requires that the conduct upon which the extradition request is made be criminal in both the requesting and requested countries. This requirement is codified in s. 3(1) of the Extradition Act, S.C. 1999, c. 18 (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

(a) subject to a relevant extradition agreement, the offence in respect of which the extradition is requested is punishable by the extradition partner, by imprisoning or otherwise depriving the person of their liberty for a maximum term of two years or more, or by a more severe punishment; and

(b) the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada,

(i) in the case of a request based on a specific agreement, by imprisonment for a maximum term of five years or more, or by a more severe punishment, and

(ii) in any other case, by imprisonment for a maximum term of two years or more, or by a more severe punishment, subject to a relevant extradition agreement.

(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.

[17] Clearly, Canada’s approach to double criminality is conduct-based as opposed to offence-based. Para. 29 of Fischbacher summarizes:

As a result, it is not necessary that the Canadian offence described in the ATP or the committal order “match” the foreign offence for which the person is sought or surrendered in name or in terms of its constituent elements; it is “the essence of the offence” that is important on the conduct-based approach: A.W. La Forest, La Forest’s Extradition to and from Canada (3rd ed. 1991), at p. 69.

[18] There is no issue in this appeal that the conduct which is the subject of the extradition request is criminal in both Canada and the United States.

[19] The issue raised here is whether it is reasonable for the Minister to surrender an individual to face prosecution for charges which are materially different from the charges described in the ATP and the resulting committal order.

[20] The United States sought the applicant’s extradition to face charges in Pennsylvania for conspiracy to import over 1000 kilograms of marijuana, conspiracy to transfer and transport about $2 million USD with intent to promote the conspiracy to import marijuana and knowingly attempting to transfer funds in the sum of $407,440 USD from a place in the United States to Canada.

[21] The Authority to Proceed described the corresponding Canadian offences as importing a Schedule II controlled substance and possession of property obtained by crime. Noticeably absent was any allegation that the applicant was a member of a larger conspiracy.

[22] Section 15(3) of the Act provides that an ATP must contain three elements:

15(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).

[23] The applicant relies heavily on para. 32 of Fischbacher, where Charron J. states:

An ATP is akin to an information or indictment in a domestic prosecution in that the corresponding Canadian offence or offences listed in an ATP provide the focus of the determination to be made at the judicial stage. Accordingly, care must be taken to ensure that an ATP accurately identifies the Canadian offence that most closely resembles the alleged conduct underlying the foreign offence. This will necessarily require the Minister, in drafting the ATP, to undertake some limited interpretation of the domestic law.

[24] Essentially the applicant’s argument is that the American offence of conspiracy for which he was indicted is conduct which is also contrary to the law of Canada and that the Canadian offence of conspiracy to import marijuana is the offence that “most closely resembles the alleged conduct underlying the foreign offence.” Accordingly, the applicant’s position is that a failure to match the American offence to the Canadian offence that most closely resembles it means that the Minister’s decision to order surrender on the American conspiracy charges is unreasonable.

[25] In Fischbacher, the United States requested the extradition of Mr. Fischbacher to face a charge of first degree murder in Arizona. The ATP that was issued described the corresponding Canadian offence as “murder”. The extradition judge held that the Record of the Case did not disclose elements of planning and deliberation as would be required for a charge of first degree murder in Canada and accordingly he committed Mr. Fischbacher for the offence of second degree murder. No appeal was taken from the committal order. The Minister then ordered Mr. Fischbacher’s surrender for the American offence of first degree murder as requested by the United Sates.

[26] Mr. Fischbacher sought judicial review of the Minister’s decision before this court. He conceded his surrender for a charge of second degree murder but argued the Minister’s decision to surrender him on the charge of first degree murder was unreasonable. In support of his argument, Mr. Fischbacher relied on appellate decisions that have concluded that “misalignment” between the offence for which the Minister ordered surrender and the offence supported by the evidence at the committal hearing may render a surrender decision unreasonable. This court accepted Mr. Fischbacher’s argument and remitted the matter to the Minister for reconsideration. On further appeal to the Supreme Court of Canada, the Minister’s appeal was allowed and the Minister’s surrender order was restored. At para. 4 of the decision Charron J. noted:

In deciding how the principle of double criminality should be satisfied, it was open to Parliament to define the crimes for which extradition may be sought and ordered either in terms of the alleged conduct, or the elements of the foreign offence. Canada’s chosen approach is unquestionably conduct-based. Thus, extradition is permitted when the conduct underlying the foreign offence, if it occurred in Canada, would constitute an offence in Canadian law, however named or characterized. So long as the offence also falls in the category of extraditable offences, defined by the Extradition Act, S.C. 1999, c. 18 (the “Act”) double criminality is fulfilled. This approach is not only consistent with prevailing international practice, it also accords with the principle of comity which demands deference and respect for the laws of other nations.

[27] The role of the extradition judge is described in para. 35:

The judge must consider the evidence in light of Canadian law and determine whether it reveals conduct that would justify committal for the crime listed in the ATP if it had occurred in Canada.

[28] The extradition judge’s role has been described as a limited one. If he or she is satisfied that the impugned conduct would amount to a criminal offence in Canadian law, the domestic component of double criminality is satisfied and the person sought must be committed for extradition.

[29] It then falls to the Minister to determine whether to order surrender and if so on what basis. The power is subject to the provisions of the relevant treaty, the Act and must be exercised in accordance with the Canadian Charter of Rights and Freedoms. The Minister will balance all relevant considerations depending on the specific facts of the case.

[30] If, after this exercise, the Minister determines to surrender the fugitive the contents of the surrender order must comply with s. 58 of the Act.

[31] Subsection (b) of s. 58 provides:

58. An order of surrender must

(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.

[32] At para. 41 of Fischbacher, Charron J. noted:

Nothing in s. 58(b) requires that the Minister match or “align” the surrender offence with that listed in the ATP or the committal order, nor with the evidence adduced at the hearing. In fact, quite the contrary: s. 58(b) provides the Minister with flexibility in crafting an order of surrender, and clearly contemplates that the wording of the surrender order may differ from that of the ATP and the order of committal: see, e.g. United States of America v. Saad (2004), 183 C.C.C. (3d) 97, (Ont. C.A.), at para. 40.

[33] The applicant seeks to distinguish Fischbacher on the basis that the crime for which extradition was sought in that case was first degree murder and the crime for which the extradition order was made was second degree murder. Since the crime of murder was the same and since it was only the classification of the offence that was different, the applicant argues that the principle in Fischbacher does not apply to his case, where the crime of conspiracy to import and the crime of importation are different crimes with different constituent elements. The principle enunciated in Fischbacher is not limited to this distinction, nor does s. 58(b) of the Act offer any support to the applicant.

[34] The applicant further submits that if the Minister is able to extradite for the offence requested by an extradition partner in circumstances where the ATP and committal order provide for committal for an offence with different constituent elements, the role of the extradition judge is emasculated.

[35] I do not accept these arguments. In my view, the Act and current jurisprudence do not require alignment between the surrender order and the extradition order.

[36] In Fischbacher, the court reviewed appellate decisions of the British Columbia Court of Appeal and this court that relied on the “misalignment” or “substantially exceeds” test, which held that the Minister was required to ensure that the foreign evidence (adduced at the committal hearing) satisfied the elements of the foreign charge before he could surrender the fugitive for the requested offence. The Supreme Court in clear language specifically disapproved of this line of authority. At para. 49, the court noted:

With respect, it is my view that to the extent that Reumayr (2003) and its offspring stand for the principle that the Minister is required to “align” the Canadian and foreign offences by ensuring that the evidence adduced at an extradition hearing supports each element of the foreign offence upon which surrender is ordered, these decisions do not represent the law in Canada. The “misalignment” test adopted by the Court of Appeal in this case is incompatible with three key components of extradition law: conduct-based double criminality; the foundational principle of comity; and the carefully circumscribed role assigned to the extradition judge.

[37] In its consideration of Canada (Minister of Justice) v. Reumayr (2005), 2005 BCCA 391, 199 C.C.C. (3d) 1 (B.C. C.A.) 391, the Supreme Court noted at para. 45:

[A]lthough the Canadian and American crimes at issue had different constituent elements, the words of the Act made it clear that “as long as the conduct supports a Canadian offence, it does not matter what the offence might be or how the constituent elements are described in Canada. The person is liable to extradition”.

[38] In my view, provided the evidence adduced at the extradition hearing would have constituted a crime in Canada as described in the ATP, or amended ATP as the case may be, the domestic component of double criminality is met.

[39] On the facts of this case, the applicant concedes his committal for the offences set out in the ATP and the committal order. Having done so, this in no way precludes the Minister from exercising his discretion to order surrender of the applicant on his criminal conduct articulated in terms of the U.S. offences. Section 58(b) of the Act provides for this discretion. In my view, Fischbacher is dispositive of the appeal in this respect.

[40] The applicant further requested the Minister to seek assurances that any and all aggravating factors on sentence, in the event of his conviction on any of the charges, be established beyond a reasonable doubt.

[41] A prominent United States attorney had provided an opinion to counsel for the applicant wherein it was stated that in the United States, aggravating factors needed only to be proved on a preponderance of the evidence, which is comparable to the civil standard of proof in Canadian law. The Minister refused to seek such assurances.

[42] In my view, the differences between evidentiary standards of proof and factors that can be considered in sentencing do not alone make the applicant’s surrender to the United States unreasonable.

[43] The test to be applied is whether surrender in the particular circumstances would “shock the conscience”, or whether the person faces “a situation that is simply unacceptable”, Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, para. 31. The legal system of a requesting state need not mirror that of Canada in order for extradition to be consistent with the principles of fundamental justice or for the Minister’s surrender order to be reasonable. The respondent in its factum at para. 29 quotes La Forest J. in Canada v. Schmidt, [1987] 1 S.C.R. 500, at para. 48:

I see nothing unjust in surrendering to a foreign country a person accused of having committed a crime there for trial in the ordinary way in accordance with the system for the administration of justice prevailing in that country simply because that system is substantially different from ours with different checks and balances. The judicial process in a foreign country must not be subjected to finicky evaluations against the rules governing the legal process in this country. A judicial system is not, for example, fundamentally unjust – indeed it may in its practical workings be as just as ours – because it functions on the basis of an investigatory system without a presumption of innocence or, generally, because its procedural or evidentiary safeguards have none of the rigours of our system.

[44] As the Minister noted in his correspondence to counsel for the applicant:

Extradition is based on the principle of comity or respect for the laws of our treaty partners. In cases where there is a difference between the treaty partner’s justice system and our own, the principle of comity requires that we recognize the foreign authorities’ right to govern their own process. As the Supreme Court of Canada stated in Republic of Argentina v. Mellino (1987), 33 C.C.C. (3d) 334, “the assumption that the requesting state will give the fugitive a fair trial according to its law underlies the whole theory and practice of extradition.”

I also bear in mind the Supreme Court of Canada’s decision in United States of America v. Burns, supra, which established the principle that “individuals who choose to leave Canada leave behind Canadian law and procedures and must generally accept the local law, procedure and punishments which the foreign state applies to its own residents.”

In my view, it would be inappropriate to make Mr. Barbu’s surrender conditional upon the receipt of an assurance which seeks to alter the applicable standard of proof in the American proceedings as this would offend the principle of comity.

[45] In my view, the Minister’s decision to defer to the laws and procedures of the requesting state is a reasonable one with which I would not interfere.

[46] I would dismiss application for judicial review.

“J. MacFarland J.A.”

“I agree J. C. MacPherson J.A.”

Sharpe J.A.: (Dissenting)

[47] I have had the advantage of reading the reasons of my colleague MacFarland J.A. For the following reasons, I arrive at a different conclusion on the issue raised by this application for judicial review.

1. Introduction

[48] The applicant faces an indictment in the United States District Court on three counts alleging that he was a member of a large-scale drug conspiracy to import 1000 kilograms or more of marijuana and to illegally launder approximately $2 million. The Minister of Justice issued an Authority to Proceed (ATP), not in terms of the alleged conduct underlying the U.S. indictment, but in terms of Canadian offences involving different conduct, namely that the applicant had engaged in single acts of importing 100 pounds of marijuana and possessing $400,000 obtained by crime.

[49] The essence of the conduct that amounts to conspiracy is an agreement to perform an illegal act. The gravity of that conduct is assessed in relation to the scope and scale of the agreement. A specific illegal act committed by an individual may constitute some evidence of involvement in an unlawful conspiracy, but it is not the conduct of conspiracy.

[50] At the committal hearing in Canada, the appellant did not face the allegation that he was a member of a large-scale drug importing conspiracy involving 1000 kilograms (2,200 pounds) of marijuana and $2 million. The extradition judge considered the different and narrower allegation that on one occasion the applicant had imported 100 pounds of marijuana and handled approximately $400,000 of drug-related money. After the applicant consented to surrender on those offences, the Minister reverted to the terms of the U.S. indictment and ordered that the applicant be surrendered on charges alleging the different and much more serious conduct.

[51] The scheme of the Extradition Act, S.C. 1999, c. 18 (the “Act”) involves a three-stage process that engages both executive and judicial functions. The judicial function is to ensure that the basic requirements of justice are met before a person is surrendered for trial in the requesting state. It is a basic requirement of justice that there is a judicial determination that the requesting state has established a prima facie case that the person sought committed the crime alleged and should stand trial for it. In my view, the Minister’s decision to issue a surrender order for offences involving different conduct than that considered at the extradition hearing undermined the judicial phase and the integrity and fairness of the extradition process and is therefore unreasonable.

2. Canada (Justice) v. Fischbacher

[52] I agree that this application must be determined in accordance with the law as stated by the Supreme Court of Canada's decision in Canada (Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170. That decision re-affirms the conduct-based approach to the double criminality requirement laid down by the Act. Fischbacher overrules decisions of this and other courts that appeared to require a “match” or “alignment” between the elements of the foreign offence for which the person is sought and the elements of the Canadian offence for which the person is committed. I agree that Fischbacher decides that when making the decision whether to surrender the person sought, the Minister need not engage in a minute consideration of the elements of the foreign offence, and that the Minister is not restricted to surrendering persons sought for extradition only where there was evidence before the extradition judge to establish each and every constituent element of the foreign offence. Provided the foreign offence is based on conduct that is also criminal under Canadian law, the Minister has the discretion to issue a surrender order in terms of the foreign charges. Fischbacher eliminates any need to “align” or “match” the elements of the foreign and Canadian offences as that “would require the Minister to effectively second-guess the foreign state’s assessment of its own law” and offend the principle of comity (para. 5). It is symmetry of conduct “not symmetry between the elements of the Canadian and foreign offences” that is “determinative of double criminality” (para. 50).

[53] In my view, however, the Supreme Court of Canada’s analysis of the conduct-based approach in Fischbacher should not be read as conferring an open-ended discretion on the Minister to surrender a person for extradition for a different offence based upon different conduct than that underlying the Canadian offence considered by the extradition judge.

3. Harmonization of the three phases of the extradition process

[54] The reasoning in Fischbacher is premised upon the need to harmonize all phases of the extradition process and to respect important principles of extradition law that need to be taken into account when assessing the reasonableness of the Minister’s surrender decision. A key element in the harmonization of the executive and judicial phases of the extradition process is the direction in para. 32 of Fischbacher that the Minister must take care that the ATP “accurately identifies the Canadian offence that most closely resembles the alleged conduct underlying the foreign offence.” This ensures that the conduct underlying the Canadian offence that is the focus of attention at the committal hearing closely resembles the conduct underlying the foreign offence for which the person is surrendered. If the conduct considered at the extradition hearing does not closely resemble the conduct underlying the foreign offence for which the person sought is surrendered, there is a disconnect between the executive and judicial phases of the process that frustrates and undermines the judicial phase and renders the executive surrender decision unreasonable.

[55] The Extradition Act assigns responsibility for the first phase of the extradition process to the executive. The Minister is given the discretion to issue an ATP. It is the legal document that, pursuant to s. 15, “authorizes the Attorney General to seek, on behalf of the extradition partner, an order of the court for the committal” into custody of the person sought to await surrender. It is the ATP that defines the scope of the inquiry before the extradition judge at the committal hearing.

[56] The second phase is judicial. Pursuant to s. 29, the extradition judge is charged with the task of making a judicial determination as to whether there is sufficient evidence of conduct “that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the [ATP]”. While the rules of evidence are relaxed for extradition hearings, the extradition judge retains a vitally important role in ensuring the integrity and fairness of the extradition process. The judicial phase of the extradition process ensures that the person sought (often as in this case a Canadian citizen) will be sent to the foreign jurisdiction for trial on the foreign charges only if the Attorney General, acting on behalf of the extradition partner, is able to lead evidence that would justify committal for trial in Canada.

[57] The purpose of the extradition hearing was considered by the Supreme Court of Canada in United States of America v. Ferras; United States of America v. Latty, 2006 SCC 33, [2006] 2 S.C.R. 77. There, the court held, at para. 19, that the hearing is required to ensure that “the basic demands of justice” are observed and that the person sought for extradition is accorded “fair process”. The court also held at para. 19 that the basic demands of justice require that “the requesting state must establish that there are reasonable grounds to conclude that the person sought may have committed the offence” and that “[a] person cannot be sent from the country on mere demand or surmise.” The court added, at para. 20, that “before a person can be extradited, there must be a judicial determination that the requesting state has established a prima facie case that the person sought committed the crime alleged and should stand trial for it.” Ferras speaks directly to the need to harmonize the judicial and executive phases of the extradition process. The “separate and independent judicial phase recognizes that extradition involves both executive and judicial acts…[and] provides a check against state excess by protecting the integrity of the proceedings and the interests of the ‘named person’ in relation to the state process” (para. 23). The judicial phase “must not play a supportive or subservient role to the executive” but rather “must provide real protection against extradition in the absence of an adequate case against the person sought” (para. 23).

[58] At the third phase, the Minister’s executive discretion is once again engaged. In the words of s. 40, “[t]he Minister may…personally order that the person be surrendered to the extradition partner.” As Charron J. put it in Fischbacher, at para. 23, the exercise of executive discretion effectively “bookends the judicial phase”, defining the inquiry before the extradition judge and implementing the judicial committal decision after considering other relevant factors.

[59] To these three phases, one must add the final supervisory stage and the jurisdiction of the provincial appellate courts to entertain appeals from the committal order of the extradition judge (s. 49) and applications for judicial review of the Minister’s surrender order (s. 57). The standard of review that applies to an application for judicial review was described by this court in United States of America v. Whitely (1994), 20 O.R. (3d) 794 at p. 805, aff’d [1996] 1 S.C.R. 467:

[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] When reviewing the Minister’s decision for legal error and reasonableness, it seems to me important that the Act should be interpreted in a manner that harmonizes and reconciles the three stage “executive-judicial-executive” extradition process. Each stage should be seen in relation to the other two stages. The powers conferred at one stage are shaped and defined by the powers to be exercised at the other stages. A decision made at one stage should not ignore, usurp or undermine authority that properly adheres to decisions made at a different stage. Just as this court must accord appropriate deference to the fact-finding role of the extradition judge and to the executive discretion of the Minister, the Minister must pay appropriate heed to the role of the extradition judge when framing the ATP and making the surrender decision.

[61] Each stage should also be considered in light of certain basic principles of extradition law, including the need to respect Charter rights; the principle of specialty that precludes the requesting state from prosecuting the person surrendered for offences not specified in the surrender order; the principle of comity that underlies the entire process; and the principle of deference to executive discretion on matters relating to Canada’s relationships with foreign countries.

4. Application: was the Minister’s surrender decision reasonable?

[62] The first stage was the Minister’s decision to issue an ATP. This is a crucial decision as the ATP both authorizes the Attorney General to seek committal and provides the focus for the judicial phase to follow at the committal stage. The scope of the inquiry before the extradition judge is to decide whether there is evidence that would justify committal for trial in Canada on the Canadian offences identified in the ATP.

[63] While the Minister’s decision regarding the ATP is discretionary, as with all discretionary decisions the law imposes certain limits. In Fischbacher, at para. 32, Charron J. recognized that the discretion to issue the ATP is shaped and, as I read her reasons, limited by the purpose of the ATP in defining what is to follow as the extradition process proceeds to the judicial phase and then returns to the executive phase:

An ATP is akin to an information or indictment in a domestic prosecution in that the corresponding Canadian offence or offences listed in an ATP provide the focus of the determination to be made at the judicial stage. Accordingly, care must be taken to ensure that an ATP accurately identifies the Canadian offence that most closely resembles the alleged conduct underlying the foreign offence. This will necessarily require the Minister, in drafting the ATP, to undertake some limited interpretation of the domestic law. [Emphasis added.]

[64] The reason for requiring that care “be taken to ensure that an ATP accurately identifies the Canadian offence that most closely resembles the alleged conduct underlying the foreign offence” is obvious. If the judicial phase is to play the essential role contemplated by Ferras in ensuring the integrity of the extradition process, the evidence led at the committal hearing and considered by the extradition judge must relate to the alleged conduct that underlies the foreign offence. It does not matter if the foreign law attaches a different criminal label to the conduct. It does matter that throughout the extradition process, the Minister and the extradition judge exercise their discretionary and decision-making powers in relation to the same conduct.

[65] Here the foreign request and indictment specified three offences:

4. Conspiracy to import 1000 kg or more of marijuana contrary to Title 21, U.S.C., Sections 952(a), 960(a), 960(b)(1)(G) and 963.

5. Conspiracy to transport and transfer monetary instruments and funds of approximately $2 million USD with intent to promote the conspiracy to import marijuana contrary to Title 21, U.S.C., Sections 952 and 960, in violation of Title 18, U.S.C., section 1956(a)(2)(A); and

6. Knowingly attempting to transport, transmit, and transfer, and aiding and abetting the attempt to transport, transmit and transfer monetary instruments and funds that is, approximately $407,440 USD from a place in the United States to Canada contrary to Title 21, U.S.C., sections 952(a), 960(a) and 963 and Title 18, U.S.C., sections 2 and 1956(a)(2)(A).

[66] There can be no doubt from the indictment and from the supporting record that the applicant is being sought for prosecution in the United States as a member of a large-scale drug importing and money-laundering conspiracy. The prosecution alleges a criminal conspiracy to import large quantities of marijuana and ecstasy into the United States from Canada over a 34-month period and to launder the proceeds of those crimes back into Canada, involving the shipment of between 75 and 200 pounds of marijuana per month in transactions involving some $2 million.

[67] Yet the ATP makes no reference to a conspiracy or a criminal agreement, but sets out offences based upon different conduct that, at best, might amount to overt acts undertaken during the course of a conspiracy. The ATP states:

The Canadian offences which correspond to the alleged conduct are:

1. Importing a Schedule II controlled substance, contrary to section 6 of the Controlled Drugs and Substances Act;

2. Possession of property obtained by crime, contrary to section 354 of the Criminal Code.

[68] While I agree that Fischbacher mandates a conduct-based approach that does not require a precise alignment between the elements of the foreign offence and elements of the corresponding Canadian offence, I fail to see how, to paraphrase para. 32 of Fischbacher, it can be said that the ATP accurately identified the Canadian offences that most closely resemble the alleged conduct underlying the foreign offences.

[69] In my view, this case is distinguishable from Fischbacher. There, the foreign indictment and surrender order alleged first degree murder while the ATP and the committal order alleged second degree murder. The definition of the elements for various degrees of murder varies from jurisdiction to jurisdiction. The Supreme Court held that the demands of the extradition process did not require a precise alignment of foreign and Canadian definitions of the degrees of murder. So long as the conduct alleged against the person sought amounted to murder under Canadian law, it was open to the Minister to surrender the person for trial on murder, however defined, in the requesting state.

[70] Here the problem runs deeper and is more fundamental. The discrepancy present in this case lies in the marked difference between the conduct underlying the foreign offences and the conduct underlying the Canadian offences set out in the ATP and considered at the extradition hearing. The conduct involved in being a participant in a 34-month drug importing conspiracy involving 2,200 pounds of marijuana and $2 million is qualitatively different and more serious than being involved in a single transaction of importing 100 pounds of marijuana and handling $400,000. As a result, there has been no judicial determination that there is sufficient evidence of the different and more serious conduct underlying the U.S. offences. In my view, to issue a surrender order unsupported by such a judicial determination is inconsistent with the design of the Act and would undermine the fairness and integrity of the entire extradition process.

[71] The respondent relies on para. 41 of Fischbacher where Charron J. stated:

Nothing in s. 58(b) requires that the Minister match or “align” the surrender offence with that listed in the ATP or the committal order, nor with the evidence adduced at the hearing. In fact, quite the contrary: s. 58(b) provides the Minister with flexibility in crafting an order of surrender, and clearly contemplates that the wording of the surrender order may differ from that of the ATP and the order of committal…[Citation omitted.]

[72] In my view, that passage cannot be read in isolation. I read it as being premised on the Minister’s compliance with the court’s earlier direction in para. 32 “to ensure that an ATP accurately identifies the Canadian offence that most closely resembles the alleged conduct underlying the foreign offence.” I do not agree that it allows the Minister to issue a surrender order for an offence involving conduct markedly different from the conduct underlying the Canadian offence identified in the ATP and considered by the extradition judge. Otherwise, the executive surrender decision is disconnected from the judicial committal decision to the point where the surrender decision circumvents and ignores the judicial component of the extradition process.

[73] During oral argument, various hypothetical cases were debated to test the limits of the respondent’s argument. If the foreign charge was murder, could the Minister issue an ATP for assault, secure a committal for assault and then surrender the person sought for murder? Counsel for the respondent more or less conceded that the logic of his argument required him to answer “yes”. He stated, however, that if the foreign charge was murder, the Minister could be trusted not to issue an ATP for assault. In my view, that is not a satisfactory answer. It fails to recognize the legal limits that are imposed on the Minister’s discretion by the overall scheme of the Act, as interpreted in Fischbacher and Ferras.

5. Assurances

[74] For the reasons given by MacFarland J.A., I agree with the respondent’s submission that even if the Minister had surrendered the applicant for the offences identified in the ATP, his decision to refuse to seek the assurances sought by the applicant and to defer to the laws and procedures of the requesting state in relation to the penalty to be imposed was not unreasonable.

6. Conclusion

[75] Accordingly, I would allow the application for judicial review, set aside the Minister’s surrender decision, and remit the matter to the Minister for further consideration.

RELEASED: December 21, 2010 “JCM”

“Robert Sharpe J.A.”