COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Churuk, 2013 ONCA 330

DATE: 20130523

DOCKET: C54053, C54054, C56061 & C56062

Laskin, Feldman and Watt JJ.A.

IN THE MATTER OF an appeal of a committal order pursuant to s. 49 of the Extradition Act, S.C. 1999, c. 18

AND IN THE MATTER OF an application for judicial review pursuant to s. 57 of the Extradition Act, S.C. 1999, c. 18

BETWEEN

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

Respondent

and

Yaroslav Churuk (a.k.a. Yaroslav Botsvynyuk a.k.a. Slavko) and Mykhaylo Botsynyuk (a.k.a. Mykhaylo Churuk a.k.a. Misha)

Appellants/Applicants

Paul Slansky, for the appellants/applicants

Richard A. Kramer, for the respondent

Heard and released orally: May 2, 2013

On appeal from the committal order of Justice Jane E. Kelly of the Superior Court of Justice, dated July 22, 2011, and on application for judicial review of the surrender order of the Minister of Justice, dated August 28, 2012.

ENDORSEMENT

[1] The appellants/applicants are sought for prosecution in Pennsylvania for their role in a human trafficking scheme that saw their victims smuggled from the Ukraine into the United States, where they were allegedly held under conditions of servitude.

[2] The appellants are alleged to have conspired in the scheme with their three brothers, two of whom have been found guilty following their trial by jury in Pennsylvania.

[3] Kelly J. ordered the appellants committed for extradition. The Minister of Justice then ordered their surrender. The appellants appeal the committal order and apply for judicial review of the surrender order. They raise numerous interrelated grounds of appeal and arguments. We will deal briefly with each one.

(1) Ulterior Motives

[4] The appellants contend that the Ukraine has ulterior motives to prosecute them and that the United States is wilfully blind to these motives. The appellants argue that to extradite them in these circumstances would be an abuse of process. Both the extradition judge and the Minister rejected this argument. We see no error in their doing so.

[5] Contrary to the appellants’ submission, we are satisfied that the extradition judge understood the argument on ulterior motives but did not accept it. After making several findings at para. 21 of her reasons, she concluded at para. 22:

Further, there is no requirement for the authorities in the U.S.A. to examine the Ukrainian investigation and court proceedings or make that part of the Record of the Case. Police misconduct in Ukraine cannot make it an abuse of process for the American to prosecute persons for offences allegedly committed in their jurisdiction.

[6] We agree with her conclusion.

(2) Disclosure

[7] The appellants argue that they cannot challenge the reliability of the evidence of the witnesses without disclosure of their names. Pardu J. rejected this argument. She held that this was a matter that went to ultimate reliability, not threshold reliability. On the record in this case we agree with her holding. Moreover, as Kelly J. noted, the appellants received, in considerable detail, the substance of the evidence against them.

[8] Finally, ordering disclosure of the names of the witnesses would give the appellants a degree of disclosure that would exceed their entitlement under the procedural laws of Pennsylvania: see USA v. Michaelov, at para. 61. The sensible purpose of this disclosure policy is to protect the safety of the victims in human trafficking cases.

(3) Certification

[9] The appellants contend that without the names of the witnesses the record is not properly certified. There is no merit to this contention.

(4) The Conduct was Statute Barred

[10] The United States has said that the offences continued until 2007. The indictment was issued March 17, 2010 and, thus, filed within the five year limitation period. Moreover, this argument was raised by one of the brothers at his trial in the United States and was rejected. In our opinion, the Minister was entitled to rely on the United States’ position and the finding of the trial court.

(5) Indirect Refoulement

[11] The appellants also argue that, as they are convention refugees in Canada, they are entitled to our country’s protection and that their surrender would amount, indirectly at least, to refoulement. The Minister concluded there were serious reasons for considering that the appellants had committed a serious non-political crime in the United States before they were declared refugees in Canada. Therefore, they were not entitled to protection under the principle of non-refoulement.

[12] We agree with the Minister.

[13] In addition, the Minister asked CIC to conduct a risk assessment and that assessment showed the appellants would not face a risk of persecution or torture in the Ukraine.

(6) Double Jeopardy

[14] Churuk was not even prosecuted in the Ukraine so that he was not in jeopardy. Therefore, he cannot raise this argument.

[15] The Minister recognized that he had discretion under s. 47(a) of the Act to refuse the surrender of Botsvynyuk on the ground of double jeopardy. The Minister declined to exercise this discretion because, in his view, the victims were different and a considerable part of the criminal conduct could not be prosecuted in the Ukraine.

[16] These were reasonable grounds for the Minister’s exercise of discretion not to refuse surrender on the basis of double jeopardy.

(7) Persecution

[17] The appellants submit that before surrendering them, the Minister was required to seek assurances that they would be returned to Canada, not the Ukraine, after the United States proceedings are completed. The Minister did not accept this submission. He held that the appellants’ surrender would not “shock the conscience” and, therefore, assurances were neither required nor appropriate.

[18] We agree.

(8) Conclusion

[19] The appeal and the application for judicial review are dismissed.

“John Laskin J.A.”

“Kathryn Feldman J.A.”

“David Watt J.A.”