Court of Appeal for Ontario

Citation: United States of America v. Thamby, 2011 ONCA 829

Date: 2011-12-22

Docket: C54224

Before: MacPherson, Juriansz and Epstein JJ.A.

Between:

The Minister of Justice and Attorney General of Canada on behalf of The United States of America (Respondent)

and

Ragavan Thamby (Applicant)

Counsel: Alan D. Gold, for the applicant Richard Kramer, for the respondent

Heard and released orally: December 16, 2011

On application for judicial review, pursuant to s. 57 of the Extradition Act, S.C. 1999, c. 18, of the decision dated August 17, 2011 of the Honourable Robert Nicholson, Minister of Justice and Attorney General of Canada.

ENDORSEMENT

[1] The applicant Ragavan Thamby applies for judicial review of the decision of the Minister of Justice dated August 17, 2011 ordering the surrender of the applicant to the United Sates to face serious fraud charges.

[2] The extradition judge ordered the applicant’s committal order for extradition on May 20, 2010. The Minister of Justice ordered the applicant’s surrender on October 15, 2010.

[3] The applicant appealed the committal order and sought judicial review of the surrender order. In a decision dated April 29, 2011, this court upheld the decision of the extradition judge. However, with respect to the surrender decision, the court determined that the Minister of Justice had failed to consider the unusual facts of this case (the almost completed guilty plea by the applicant to the Canadian fraud charges) and had not sufficiently considered the so-called Cotroni factors in assessing the applicant’s s. 6 Charter submission. The court allowed the application for judicial review and remitted the matter to the Minister of Justice for reconsideration.

[4] The applicant made additional submissions to the Minister. In a letter dated August 17, 2011, the Minister informed the applicant’s counsel that “I have concluded that Mr. Thamby’s surrender to the United States is still warranted on the offences for which his extradition is sought.”

[5] The applicant submits that the Minister’s decision is unreasonable and based upon errors in law. His principal submission is that the Minister’s Cotroni assessment is still flawed because the Minister failed to recognize and properly weigh the fact that carelessness of court staff prevented the prosecution from arriving at a final conclusion. As Mr. Gold put it, “the Minister allowed clerical carelessness to trump the applicant’s s. 6 Charter right to remain in Canada.” He says that the Minister has authority, independent of any exercise of prosecutorial discretion by the Attorney General of Ontario, to request charges be relaid or to prosecute any Criminal Code charge, and that this is what the Minister should do in this case.

[6] We are not persuaded by this submission. In his supplemental reasons, the Minister engaged in a proper Cotroni analysis. He considered the unusual factual history of this case, noting that the applicant would have pleaded guilty to the Canadian charges before the United States requested his extradition. He observed that the decision of the provincial Crown to stay the Canadian charges on the eve of resolution because of the extradition request was entirely proper, as found by both the extradition judge and this court.

[7] The Minister then reviewed the factors relating to the American charges, emphasizing the extent of the alleged fraud, the number of victims, and the fact that those victims were elderly residents of the United States. He concluded:

Accordingly, I am of the view that the United States has a significantly greater interest in prosecuting this case and that it is in the interests of justice that Mr. Thamby face prosecution in the jurisdiction in which he is alleged to have targeted vulnerable persons who cannot easily travel to Canada to testify.

[8] In our view, the Minister made no legal error in his analysis. Nor is his decision unreasonable. In his supplementary reasons, the Minister has properly addressed the concerns expressed by this court in its April 29, 2011 decision.

[9] The application for judicial review is dismissed.

“J.C. MacPherson J.A.” “R.G. Juriansz J.A.” “G.J. Epstein J.A.”