CITATION: United States of America v. Beltran, 2011 ONCA 775
DATE: 20111208
DOCKET: M40477 (C53106 & C53906)
COURT OF APPEAL FOR ONTARIO
Sharpe J.A. (In Chambers)
BETWEEN
The Attorney General of Canada on behalf of the United States of America
Respondents
and
Francisco Javier Beltran
Applicant
Michael H. Gordner, for the applicant
Moiz Rahman, for the respondents
Heard: December 02, 2011
Sharpe J.A.:
[1] The applicant seeks an order pursuant to s. 684 of the Criminal Code for the appointment of counsel to argue his appeal from committal for extradition and his application for judicial review of the surrender order made by the Minister of Justice (the “Minister”).
[2] The United States of America seeks the applicant’s extradition for prosecution in Texas on charges of fraud and aggravated identity theft. The applicant was committed by the extradition judge on a charge of fraud and the Minister has ordered his surrender for trial on both charges specified in the extradition request. The applicant filed an inmate notice of appeal from committal as well as an in-person application for judicial review of the surrender order. He has been denied a legal aid certificate on the grounds that his case has insufficient merit. The applicant appears to have no assets to retain counsel, although he has had the assistance of counsel at the committal hearing, in making submissions to the Minister and in making this application.
2. Jurisdiction
[3] As directed by the order of Cronk J.A., October 21, 2011, counsel made submissions as to the jurisdiction of this court to make a s. 684 order in the circumstances of this case.
[4] It is common ground that a single judge of this court has jurisdiction to appoint counsel for an appeal from a committal order. Although, the Attorney General concedes that a panel of this court has jurisdiction to appoint counsel to argue judicial review of the Minister’s order, the contentious issue is whether a single judge of this court also has jurisdiction to appoint counsel for a judicial review.
[5] Section 684 provides:
A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.
[6] The Extradition Act, S.C. 1999, c. 18, s. 52, expressly incorporates s. 684 of the Criminal Code in relation to “appeals under this Act.” An application for judicial review from the Minister’s surrender order pursuant to s. 57 of the Extradition Act is a proceeding distinct from an appeal from the committal order pursuant to s. 49. There is no provision comparable to s. 52 that expressly incorporates s. 684 in relation to applications for judicial review.
[7] The question, therefore, becomes: does that leave me without jurisdiction to appoint counsel to assist an applicant for judicial review?
[8] The Attorney General submits that absent express statutory authority, the only possible source of jurisdiction to appoint counsel in relation to the judicial review application is this court’s ancillary jurisdiction to make orders to control its own process. R. v. Russel, 2011 ONCA 303, 270 C.C.C. (3d) 256, at paras. 40-43 holds that a statutory trial court has the authority to appoint amicus where such an order is “necessary for the court to properly exercise the jurisdiction conferred by statute”. The Attorney General concedes that it therefore must follow that this court also has that jurisdiction. However, the Attorney General further submits that as the power is that of the “court”, it must be exercised by a panel of three judges and that a single judge sitting in chambers has no such authority: R. v. Church of Scientology of Toronto (1986), 1986 CanLII 4633 (ON CA), 25 C.C.C. (3d) 149 (Ont. C.A.).
[9] That analysis allows this court to appoint counsel where necessary, but requires the additional time-consuming step of an application to a three judge panel, rather than allowing the matter to proceed more efficiently and expeditiously before a single judge in chambers.
[10] The case law is inconclusive as to the jurisdiction of a single judge. In United States of America v. Peay, [1996] O.J. No. 1688 (Ont. C.A. [In Chambers]), Moldaver J.A. assumed, without deciding, that he had jurisdiction to appoint counsel in a case like the present, but declined to do so. Other cases have considered the merits of appointing of counsel for an application for judicial review without raising or dealing with the jurisdictional issue: see United States of America v. Wilson, 2011 BCCA 96, B.C.W.L.D. 2601 [In Chambers]; aff’d 2011 BCCA 164, B.C.W.L.D. 3640; United States of America v. O’Brien, [2009] B.C.J. No. 966 (B.C.C.A. [In Chambers])
[11] In my view, the answer is found in s. 57(9):
If an appeal under section 49 or any other appeal in respect of a matter arising under this Act is pending, the court of appeal may join the hearing of that appeal with the hearing of an application for judicial review.
Here, the hearing of the application for judicial review has been joined with the hearing of the s. 49 appeal. I see no reason why I should not regard the two proceedings as joined for the purposes of the preliminary and incidental procedural issue of appointment of counsel pursuant to s. 684. I note that s. 684 allows for the appointment of counsel in relation “to proceedings preliminary or incidental to an appeal”.
[12] This interpretation is consistent with the language of the Extradition Act read as a whole. Moreover, it achieves the practical and efficient result of allowing these applications to be dealt with by a single chambers judge.
[13] Accordingly, I find that I do have jurisdiction to appoint counsel for the purposes of all aspects of the joined appeal and judicial review proceeding before this court.
2. Should counsel be appointed pursuant to s 684?
[14] There does not appear to be any issue that the applicant lacks the means to obtain legal assistance and the issue is whether it is in the interests of justice that counsel be appointed to argue his appeal and application for judicial review. R. v. Bernardo (1997), 1997 CanLII 2240 (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.) at paras. 20-21, directs an inquiry whether the applicant requires the assistance of counsel to be “afforded a meaningful opportunity to establish the merits of the grounds” advanced. That question falls to be assessed on the basis of “two closely related principles”:
First, counsel must be appointed where an accused cannot effectively present his or her appeal without the help of a lawyer. Second, counsel must be appointed where the court cannot properly decide the appeal without the assistance of counsel. In most situations, both or neither principle will operate to require the appointment of counsel. Sometimes, however, one or the other, standing alone, will justify the appointment of a lawyer for the appellant.
[15] The first step in assessing a s. 684 application is to inquire into the merits of the appeal. This inquiry is limited to asking whether the appeal is arguable. In my view, for the applicant, this will be a difficult appeal and application for judicial review.
[16] Given the low threshold for committal and the carefully considered reasons of the committal judge, the appellant faces a decidedly uphill battle in contending that the committal judge erred in finding that the evidence warranted committal for fraud.
[17] The application for judicial review will also face substantial challenges. In making the surrender order, the Minister considered and rejected the contention that to surrender the appellant would be unjust, oppressive and contrary to s. 7 of the Charter on the following bases:
• the impact of false allegations made in support of the extradition arrest warrant application;
• prejudicial effect of the Canadian criminal investigations on the extradition proceedings and the United States prosecution;
• the evidence of duress and restricted application of the law of duress in the United States;
• the misleading allegations in the record of the case regarding the nature of the fraud in the amount of the loss; and
• the unduly harsh penalty sought by the United States authorities.
[18] The Minister considered these submissions individually and collectively and concluded that it would not be unjust or oppressive to surrender the applicant. While there were false allegations made in support of the extradition warrant, those allegations were withdrawn and not relied upon at the extradition hearing. The Minister explained why the Canadian criminal investigation had no impact on, and caused no prejudice with respect to, the extradition proceedings. The Minister also explained that matters of defence were for trial in the requesting state and that differences in substantive law do not constitute a reason to refuse surrender. The nature of the fraud in the amount of the loss were, according to the Minister, matters for the extradition judge in assessing the sufficiency of the evidence warranted committal, not matters for the Minister. The fact that a person sought for extradition faces a harsher sentence in the requesting state does not automatically make surrender unfair or oppressive.
[19] The applicant also contends that it was not open to the Minister to surrender the applicant on the aggravated identity theft charge that was not dealt with by the committal judge. To succeed on that argument, the applicant will have to distinguish both Canada (Minister of Justice) v. Fischbacher, 2009 SCC 46, 3 S.C.R. 170, and United States of America v. Barbu 2010 ONCA 891, 265 C.C.C. (3d) 244, leave to appeal refused [2011] S.C.C.A. No. 66. I fail to see how he will be able to do so.
[20] I conclude that there is little hope of success on the appeal and application for judicial review.
[21] Even if the applicant satisfies the minimal “arguable” threshold test on the merits, I am not persuaded that he satisfies the second step, set out in Bernardo, at para. 21:
…can the appellant effectively advance his grounds of appeal without the assistance of counsel? This inquiry looks to the complexities of the arguments to be advanced and the appellant’s ability to make an oral argument in support of the grounds of appeal. The complexity of the argument is a product of the grounds of appeal, the length and content of the record on appeal, the legal principles engaged, and the application of those principles to the facts of the case. An appellant’s ability to make arguments in support of his or her grounds of appeal turns on a number of factors, including the appellant’s ability to understand the written word, comprehend the applicable legal principles, relate those principles to the facts of the case, and articulate the end product of that process before the court.
[22] While extradition proceedings in this court involve a level of complexity that a lay person would find difficult to navigate, this appeal will be heard as an inmate appeal where the appellant will have the assistance of duty counsel. Counsel for the applicant outlined for me the arguments to be advanced on the appeal from the committal order and on the application for judicial review. The panel hearing the appeal will have the benefit of the applicant’s written submissions to the Minister of Justice which set out, in some detail, the applicant’s position. This is not a case, like Bernardo, involving a voluminous record yet to be compiled. Nor does it involve legal issues that will be unfamiliar to either the panel hearing the appeal or to duty counsel. In my view, particularly with the added benefit of duty counsel, this case falls into the same category as United States v. Peay where Moldaver observed, at para. 3,
I am confident that if the panel hearing the appeal and the application for judicial review is provided with this material, as well as the additional material in the appeal book, the applicant should have little difficulty presenting his own case with full assurance that the court will have a firm grasp of the issues raised and the arguments for and against.
[23] The appellant has not persuaded me that it is in the interests of justice to appoint counsel pursuant to s. 684.
[24] Finally, I note that where a single judge refuses as s. 684 application, it remains open to a panel to consider the matter afresh: see Bernardo at para. 12. Accordingly, should the panel conclude, for reasons not apparent to me on this application, that more than duty counsel assistance is required to satisfy the interest of justice in this case, it will be open to the panel to entertain a renewed s. 684 application.
Disposition
[25] Accordingly, the application for the appointment of counsel pursuant to s. 684 is dismissed.
“Robert J. Sharpe J.A.”
RELEASED: December 08, 2011