United States of America v. Thamby, 2011 ONCA 333

CITATION: United States of America v. Thamby, 2011 ONCA 333

DATE: 20110429

DOCKET: C52902 & C52261

COURT OF APPEAL FOR ONTARIO

Laskin, MacPherson and Sharpe JJ.A.

BETWEEN

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

Respondent

and

Ragavan Thamby

Appellant

Alan D. Gold, for the appellant

Richard A. Kramer, for the respondent

Heard: April 5, 2011

On appeal from the committal order of Justice W. Brian Trafford of the Superior Court of Justice, dated May 18, 2010, and reported at [2010] O.J. No. 3196, and on application for judicial review from the decision of the Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada, concerning an application brought pursuant to s. 58 of the Extradition Act, S.C. 1999, c. 18, dated October 15, 2010.

Laskin J.A.:

A. Overview

[1] Ragavan Thamby is a Canadian citizen. He has appealed an order committing him for extradition and applied for judicial review of the Justice Minister’s order surrendering him to the United States to face fraud charges.

[2] The facts giving rise to these proceedings are unusual. In February 2007, Mr. Thamby was arrested and charged in Ontario with multiple counts of fraud contrary to the Criminal Code. The Crown alleged that Mr. Thamby participated in a fraudulent telemarketing scheme operating from Canada and targeting elderly residents living in the United States. His lawyer and the Crown prosecutor reached a plea agreement to resolve all of these charges. The agreement was vetted and approved by a judge of the Ontario Court of Justice. Mr. Thamby was set to plead guilty and be sentenced on July 24, 2009. Had that happened, no extradition proceedings could have been taken against him.

[3] However, Mr. Thamby’s case did not go forward on July 24. Because of a clerical error, the information on which he was to plead went astray. His case was adjourned to September 2, 2009 so that a replacement information could be issued. On August 31, two days before Mr. Thamby was again set to plead guilty, the Ontario prosecutor handling the case learned that back in June the Minister of Justice had issued an authority to proceed seeking Mr. Thamby’s extradition to the United States for the same conduct that founded the Ontario charges. On September 2, the Crown prosecutor stayed the Ontario charges so that the extradition proceedings could go forward.

[4] Before the extradition judge, Mr. Thamby accepted that the evidence against him was sufficient to warrant his committal. But he argued that staying the domestic charges rendered the extradition proceedings an abuse of process. He asked that those proceedings be stayed. The extradition judge did not accept this argument and committed Mr. Thamby for extradition.

[5] Before the Minister, Mr. Thamby renewed his abuse of process argument and also argued that surrendering him to the United States would unjustifiably violate his constitutional right to remain in Canada under s. 6(1) of the Charter. The Minister rejected both arguments and ordered his surrender.

[6] In this court, Mr. Thamby made essentially the same arguments that he had made before the extradition judge and the Minister. I see no merit in the abuse of process argument. However, in assessing Mr. Thamby’s claim of an unjustified violation of s. 6(1) of the Charter, the Minister failed to take account of the unusual facts of this case. I would set aside the Minister’s surrender order and remit the matter to him for reconsideration.

B. Additional Facts

(1) The domestic proceedings

[7] The charges against Mr. Thamby in Ontario resulted from a coordinated investigation by the Federal Bureau of Investigation and Toronto Police Services. The investigators alleged Mr. Thamby defrauded American residents of about $2 million.

[8] The plea agreement was reached between May 29 and June 3, 2009. Under the terms of the agreement, Mr. Thamby would have pleaded guilty to multiple counts of fraud and would have received a sentence of two years less a day to be served conditionally plus two years probation. He would also have been subject to a restitution order of $200,000. On July 24, 2009, Horkins J. of the Ontario Court of Justice approved the agreement and was ready to take Mr. Thamby’s plea. The clerical error in the court office derailed the proceedings.

(2) The United States’ extradition request

[9] In mid-May 2009, the United States sent Canada a diplomatic note requesting Mr. Thamby’s extradition to face charges of conspiracy to commit fraud, mail fraud and wire fraud. On June 23, 2009, the Minister of Justice issued an authority to proceed for the corresponding Canadian offence of fraud.

[10] The conduct underlying the charges in the United States is identical to the conduct for which Mr. Thamby was charged in Ontario. However, under United States sentencing guidelines, if convicted, Mr. Thamby faces a sentence of more than 15 years in prison.

(3) The committal proceedings before the extradition judge

[11] The committal hearing took place on May 13, 2010 before Trafford J. As I have said, for the purpose of committal, Mr. Thamby did not contest the sufficiency of the evidence against him.

[12] The extradition judge dismissed the stay application and committed Mr. Thamby for extradition. He found no evidence the provincial Crown knew of the extradition proceedings before August 31, 2009. He also found that the Ontario prosecutorial authorities had acted in good faith. Therefore, their decision to stay the domestic charges was not improper.

(4) The Minister’s surrender order

[13] On October 15, 2010, having considered Mr. Thamby’s submissions, the Minister of Justice ordered his surrender to the United States. The Minister of Justice also found no abuse of process in staying the domestic charges. He held that Mr. Thamby had no right to plead guilty in Canada, and merely because he faced a longer sentence in the United States was not a reason to refuse his surrender.

[14] The Minister also held that surrendering Mr. Thamby to the United States would not unjustifiably violate his constitutional right under s. 6(1) of the Charter to remain in Canada. The Minister did a “Cotroni assessment” and concluded that surrender for prosecution in the United States was “the most effective and appropriate option.”

C. Analysis

(1) There was no abuse of process

[15] But for the error in the court office, Mr. Thamby would have received a conditional sentence of two years less a day. He now faces the prospect of a sentence of more than 15 years in prison. As severe as that may be, the mere possibility that a Canadian citizen may face a much higher sentence if extradited does not turn a stay of the domestic proceedings in favour of extradition into an abuse of process: see Whitley v. USA (1994) 1994 498 (ON CA), 20 O.R. (3d) 794 (C.A.), aff’d 1996 225 (SCC), [1996] 1 S.C.R. 467.[^1]

[16] Mr. Thamby’s abuse of process argument must rest on showing that, in exercising their discretion to stay the domestic charges, the Ontario prosecutors acted in bad faith or for improper motives. Trafford J. made no finding of bad faith or improper motives. And there is no evidence to support such a finding. Thus, both the extradition judge and the Minister were correct to reject Mr. Thamby’s claim of abuse of process.

(2) In determining that extradition did not unjustifiably violate Mr. Thamby’s s. 6(1) rights, the Minister of Justice failed to consider the unusual facts of this case

[17] Under s. 6(1) of the Charter every Canadian citizen has the right to remain in Canada. In USA v. Cotroni, 1989 106 (SCC), [1989] 1 S.C.R. 1469, the Supreme Court of Canada held that extradition is a prima facie infringement of the right guaranteed by s. 6(1), but is justified under s. 1 of the Charter. Nonetheless, in a particular case, depending on the facts, the extradition of a Canadian citizen to face charges abroad may amount to an unjustified infringement of that citizen’s s. 6(1) rights. Whether it does is for the Minister to decide: see USA v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532.

[18] Typically the Minister must decide whether prosecution in Canada is a realistic option: see Controni at 1498:

Of course, the authorities must give due weight to the constitutional right of a citizen to remain in Canada. They must in good faith direct their minds to whether prosecution would be equally effective in Canada, given the existing domestic laws and international cooperative arrangements. They have an obligation flowing from s. 6(1) to assure themselves that prosecution in Canada is not a realistic option.

[19] The Minister’s decision is discretionary. In exercising that discretion, the Minister invariably considers some or all of the factors approved of by La Forest J. writing for the majority in Cotroni at 1498-1499:

• where was the impact of the offence felt or likely to have been felt,
• which jurisdiction has the greater interest in prosecuting the offence,
• which police force played the major role in the development of the case,
• which jurisdiction has laid charges,
• which jurisdiction has the most comprehensive case,
• which jurisdiction is ready to proceed to trial,
• where is the evidence located,
• whether the evidence is mobile,
• the number of accused involved and whether they can be gathered together in one place for trial,
• in what jurisdiction were most of the acts in furtherance of the crime committed,
• the nationality and residence of the accused,
• the severity of the sentence the accused is likely to receive in each jurisdiction.

[20] The weighing and balancing of these factors have come to be known as a “Cotroni assessment”. Because a Cotroni assessment involves the exercise of discretion, the Minister’s decision whether to surrender a Canadian citizen for extradition is entitled to deference from a reviewing court. A court should interfere with the Minister’s decision only if it is unreasonable: see USA v. Lake, 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 34.

[21] However, before deferring to the Minister’s decision, the court must be satisfied that the Minister carried out a proper analysis. And a proper analysis requires consideration of the relevant facts. LeBel J. made this point writing for the court in Lake at para. 41:

The reviewing court’s role is not to re-assess the relevant factors and substitute its own view. Rather, the court must determine whether the Minister’s decision falls within a range of reasonable outcomes. To apply this standard in the extradition context, a court must ask whether the Minister considered the relevant facts and reached a defensible conclusion based on those facts. I agree with Laskin J.A. that the Minister must, in reaching his decision, apply the correct legal test. The Minister’s conclusion will not be rational or defensible if he has failed to carry out the proper analysis. If, however, the Minister has identified the proper test, the conclusion he has reached in applying that test should be upheld by a reviewing court unless it is unreasonable.

[22] In the part of his reasons dealing with the abuse of process argument, the Minister does refer to Mr. Thamby’s submission on the plea agreement. He even recognizes that this submission is closely tied to Mr. Thamby’s argument on s. 6(1) of the Charter. Unfortunately, however, the Minister does not say anything more about this submission other than to observe that it can be considered by this court on the appeal from the committal order.

[23] Thus, there is nothing in the Minister’s reasons to show that he considered the plea agreement or the unusual facts of this case when he rejected Mr. Thamby’s s. 6(1) argument. According to Cotroni, the Minister is required to consider whether prosecution in Canada is a realistic option. Three of the Cotroni factors to be weighed and assessed are “which jurisdiction has laid charges,” “which jurisdiction is ready to proceed to trial,” and “the severity of the sentence the accused is likely to receive in each jurisdiction.” Obviously, prosecution in Canada was a realistic option. Charges were laid and successfully resolved. Mr. Thamby would have been sentenced to two years less a day to be served in the community. Now he faces a sentence of 15 years to be served in prison. The harsher sentence that he now faces is a factor that militates against surrender: U.S.A. v. Ferras; U.S.A. v. Latty, 2006 SCC 33, [2006] 2 S.C.R. 77, at para. 86.

[24] Thus, the plea agreement and the unusual facts that precluded it from being implemented together with the disparity in sentences in the two jurisdictions are relevant to Mr. Thamby’s s. 6(1) argument. However, instead of adverting to these facts and especially to the plea agreement, which, but for the information having gone astray would have put an end to the extradition proceedings, the Minister simply said:

As Minister of Justice acting under section 40 of the Act, my role in the extradition process is essentially political in nature (United States v. Kwok, supra; Lake v. Canada (Minister of Justice), supra). As such, I will not interfere with the exercise of discretion not to prosecute Mr. Thamby, nor do I have the authority to direct the relevant investigative authorities to pursue an investigation or lay charges against him.

And:

Based on the fact that charges were originally laid in Canada, there can be no doubt that a Canadian prosecution was possible in this case. I accept the finding of the extradition judge that the Canadian authorities properly exercised their discretion to stay Mr. Thamby’s domestic charges in favour of prosecution in the United States. I can see nothing improper in these circumstances in this matter being prosecuted in the United States and I am particularly mindful that the crucial evidence of the elderly victims is located in the United States. The Canadian evidence, though considerable, consists primarily of seized records and the evidence of the Canadian investigators and is more easily transportable to another jurisdiction for trial than is the evidence of the alleged victims.

Although Mr. Thamby was arrested in Canada and charged, there are no Canadian criminal proceedings pending against him. By contrast, there are charges pending against Mr. Thamby in the United States District Court for the Southern District of Texas and his extradition has been sought from Canada. In the absence of charges against Mr. Thamby in Canada, in my view, the principles enunciated in Cotroni, supra, applied to the facts of this case combined with Canada’s treaty obligations make surrender for prosecution in the United States the most effective and appropriate option in this case.

[25] Respectfully, these reasons include a considerable amount of boiler plate language but very little about Mr. Thamby’s actual circumstances and, as I have already mentioned, they say nothing about the plea agreement that was reached with the Ontario prosecutors, approved by an Ontario judge and set to be implemented.

[26] Whether these circumstances ought to dictate a different result is not for me to say. Certainly, the Minister identified some relevant considerations warranting surrender, such as the harm having occurred to elderly victims in the United States. But Mr. Thamby is entitled to have the Minister weigh all of the relevant considerations favouring a domestic prosecution when exercising his discretion whether to make a surrender order. From Mr. Thamby’s perspective, the extradition proceedings were unexpected, occurred at the very last moment and yet may have an enormous impact on his life. On these unusual facts he is entitled to know why he cannot conclude his plea agreement in Canada.

D. Conclusion

[27] I would dismiss the appeal from the committal order. I would allow the application for judicial review and remit the matter to the Minister for reconsideration.

RELEASED: Apr. 29, 2011

“JL” “John Laskin J.A.” “I agree J.C. MacPherson J.A.”

“I agree Robert J. Sharpe J.A.”

[^1]: A more severe sentence in the foreign jurisdiction may be relevant to the Minister’s surrender decision. See para. 23 of these reasons.