The Attorney General of Canada on behalf of the United States of America et al. v. Talashkova

[Indexed as: United States of America v. Talashkova]

Ontario Reports

Court of Appeal for Ontario,

MacPherson, Gillese and Hourigan JJ.A.

January 29, 2014

118 O.R. (3d) 622 | 2014 ONCA 74

Case Summary

Criminal law — Extradition — Abuse of process — Extradition judge expressing some concern about conduct of Canada Border Services Agency officials involved in appellant's case but concluding that appellant had not met test for stay of proceedings for abuse of process under residual category — Extradition judge not erring in considering effects of Canada Border Services Agency officials' conduct on fairness of immigration process — Extradition judge not finding that bad faith for Charter purposes is limited to willful or deliberate misconduct — Extradition judge committing no palpable and overriding error in his assessment of evidence.

The appellant was committed for extradition to the United States to stand trial on fraud and money laundering charges, and the Minister of Justice ordered her surrender. Before the extradition judge, the appellant sought a stay of proceedings, arguing that Canada Border Services Agency ("CBSA") officials violated her rights under s. 7 of the Canadian Charter of Rights and Freedoms by, among other things, failing to ensure that she obtained a timely review of her detention, failing to afford her an opportunity to voluntarily withdraw from Canada, improperly considering extradition as a factor in deciding whether she was inadmissible to Canada, and redacting a report under s. 44(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 to delete any reference to extradition. The extradition judge expressed some concerns about the officials' conduct but concluded that the appellant had not met the test for a stay of proceedings for abuse of process in the residual category. The appellant appealed the committal order and applied for judicial review of the surrender order.

Held, the appeal and application should be dismissed.

In applying the test for abuse of process in the residual category, the extradition judge did not err by focusing on the effects of the abuse on trial fairness rather than the administration of justice. A stay in the context of the residual category of abuse of process is by its nature a flexible remedy which requires the court to have regard to all the circumstances of the case. Prejudice to the accused's rights, while not determinative, is a relevant part of that analysis. The extradition judge did not equate bad faith with deliberate misconduct. He was entitled to find that the CBSA officials were pursuing a valid immigration purpose and had valid grounds to determine both that the appellant was inadmissible to Canada and that she should be detained pending an admissibility hearing, that their actions were not undertaken to facilitate the extradition process, and that the creation of a redacted report was not intended to and did not result in the misleading of the appellant or the Immigration and Refugee Board.

There was no basis for interfering with the minister's surrender decision.

Cases referred to

R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 245 C.C.C. (3d) 1, EYB 2009-161617, J.E. 2009-1379, 66 C.R. (6th) 1, 193 C.R.R. (2d) 1, 391 N.R. 1, 253 O.A.C. 124; [page623] R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 33 C.R.R. (2d) 1, 29 W.C.B. (2d) 152; R. v. Nixon, [2011] 2 S.C.R. 566, [2011] S.C.J. No. 34, 2011 SCC 34, 237 C.R.R. (2d) 333, 417 N.R. 274, [2011] 7 W.W.R. 429, 2011EXP-2036, 41 Alta. L.R. (5th) 221, J.E. 2011-1113, 502 A.R. 18, 271 C.C.C. (3d) 36, 335 D.L.R. (4th) 565, 85 C.R. (6th) 1, 13 M.V.R. (6th) 1; R. v. Regan, [2002] 1 S.C.R. 297, [2002] S.C.J. No. 14, 2002 SCC 12, 209 D.L.R. (4th) 41, 282 N.R. 1, J.E. 2002-377, 201 N.S.R. (2d) 63, 161 C.C.C. (3d) 97, 49 C.R. (5th) 1, 91 C.R.R. (2d) 51, 52 W.C.B. (2d) 150; United States of America v. Wilson, 2002 15558 (ON CA), [2002] O.J. No. 4881, 167 O.A.C. 192, 170 C.C.C. (3d) 527, 56 W.C.B. (2d) 413 (C.A.)

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 7, s. 24(1)

Immigration and Refugee Protection Act, S.C. 2001, c. 27 [as am.], ss. 36(1)(c), 44(1), 57(1)

APPEAL from the committal order of McMahon J. of the Superior Court of Justice dated February 21, 2013; APPLICATION for judicial review of the surrender order of the Minister of Justice dated July 24, 2013.

Tyler Hodgson, for appellant/applicant.

Faiyaz Amir Alibhai and Richard Kramer, for respondents.

[1] BY THE COURT: -- The appellant is sought for prosecution in the United States District Court for the Central District of California for fraud and money laundering offences flowing from an alleged Internet sales fraud scheme. McMahon J. denied her application for a stay of proceedings and found that she should be committed for extradition. The Minister of Justice subsequently ordered her surrender. The appellant appeals the committal order and applies for judicial review of the surrender order. She also brings an application for the admission of fresh evidence.

[2] The appellant submitted before the extradition judge and on this appeal that Canada Border Services Agency ("CBSA") officials acted in a manner that violated her rights under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") and s. 7 of the Canadian Charter of Rights and Freedoms. Among other things, she relies upon the following conduct: inquiries made by a CBSA official of United States officials regarding potential extradition, failure to ensure that she obtained a timely review of her detention, failure to afford her an opportunity to voluntarily withdraw from Canada, improper consideration of extradition as a factor in deciding whether she [page624] was inadmissible to Canada and the redaction of a s. 44(1) (of the IRPA) report to delete any reference to extradition.

[3] The appellant submits that this conduct amounted to an abuse of process under the residual category of abuse of process identified in R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, and that a stay of proceedings pursuant to s. 24(1) of the Charter is the appropriate remedy.

[4] The extradition judge concluded that the CBSA officials did not engage in any deliberate misconduct and that they had lawful grounds to find the appellant inadmissible to Canada pursuant to s. 36(1) (c) of the IRPA. He did have concerns about the conduct of CBSA officials involved in the case, specifically their violation of the CBSA's policies designed to separate immigration and extradition procedures. However, the extradition judge concluded that the appellant had not met the test for a stay.

[5] On this appeal, the appellant submits that the extradition judge erred in applying the test for abuse of process by focusing on the effects of the abuse on trial fairness rather than the administration of justice. She also argues that the extradition judge erred in law in finding that bad faith for Charter purposes is limited to wilful or deliberate misconduct. Finally, the appellant submits that the extradition judge erred by misapprehending the evidence on critical issues.

[6] A stay is a remedy of last resort which will only be employed to rectify an abuse of process in the clearest of cases: R. v. Regan, [2002] 1 S.C.R. 297, [2002] S.C.J. No. 14, 2002 SCC 12, at para. 53. In the context of the residual category of abuse of process, a stay will only be justified where the alleged misconduct amounts to "unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process": O'Connor, at para. 73.

[7] As a discretionary decision, the determination of whether to grant a stay attracts considerable appellate deference. Intervention is not justified unless the appellant can establish that the judge at first instance has misdirected herself or the decision is so wrong that it would amount to an injustice. Where the judge at first instance exercises her discretion, that decision cannot be replaced simply because the appellate court takes a different view of the facts. Rather, findings of fact should not be disturbed absent a palpable and overriding error in the assessment of the evidence: Regan, at paras. 117-18.

[8] This deferential imperative is particularly pronounced in extradition cases, such as the case at bar, where the application judge has had the benefit of viva voce evidence. As previously [page625] noted by this court, the "extradition judge had the opportunity to observe the witness and hear his testimony first hand. He was, therefore in the best position to determine the facts": United States of America v. Wilson, 2002 15558 (ON CA), [2002] O.J. No. 4881, 170 C.C.C. (3d) 527 (C.A.), at para. 47.

[9] Contrary to the appellant's submission, the fact that the extradition judge considered the effect of the CBSA officials' conduct on the fairness of her immigration process does not amount to an error in law. A stay in the context of the residual category of abuse of process is by its nature a flexible remedy which requires the court to have regard to all the circumstances of the case. Prejudice to the accused's rights, while not determinative, is a relevant part of that analysis: R. v. Nixon, [2011] 2 S.C.R. 566, [2011] S.C.J. No. 34, 2011 SCC 34, at para. 41. A consideration of the effect of the impugned conduct on the appellant's rights was a relevant inquiry in the broader analysis of the impact of such conduct on public confidence in the administration of justice.

[10] The appellant is correct in her submission that wilful or deliberate misconduct is not a prerequisite for a finding of bad faith. Negligence or wilful blindness on the part of the authorities can be inconsistent with good faith, and good faith may not be found where authorities violate, as a result of ignorance, established legal norms with which they should be familiar: R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, at paras. 74-75. However, we are unable to accede to the submission that the extradition judge equated bad faith with deliberate misconduct. His careful and thorough reasons demonstrate that, having regard to the evidence before him and the findings he made based on that evidence, he concluded that the conduct of the CBSA officials did not warrant the imposition of a stay.

[11] On the facts as found by the extradition judge, we see no error in his determination that a stay should not be granted. First, the extradition judge found that the CBSA officials were pursuing a valid immigration purpose and had valid grounds to determine both that the appellant was inadmissible to Canada and that she should be detained pending an admissibility hearing. Second, the extradition judge found that the CBSA officials' actions were not undertaken to facilitate the extradition process. Third, he found that the United States and the Department of Justice acted properly throughout the process. Fourth, the extradition judge found that the decision of the Minister of Public Safety and Emergency Preparedness' delegate to consider the irrelevant factor of extradition was a result of a lack of training and was not part of a deliberate effort to utilize the immigration [page626] system for a disguised extradition. Fifth, he found that the creation of a redacted report was not intended to and did not result in the misleading of the appellant or the Immigration and Refugee Board ("IRB").

[12] These were all findings that were open to the extradition judge to make and we are not satisfied that any of these findings were tainted by a material misapprehension of the evidence.

[13] Specifically, there was no error in the extradition judge's conclusion that both versions of the s. 44(1) report were before the IRB. Based on our review of the record filed on this appeal, it appears that the impugned report was made an exhibit before the IRB. Moreover, in his submissions to the extradition judge, counsel for the appellant submitted that there was only a possibility that both reports were not before the IRB.

[14] The extradition judge also did not err with respect to his assessment of the evidence regarding the problems associated with allowing the appellant to withdraw from Canada. The extradition judge did not find that the appellant could only be returned to Russia on a direct flight. Instead, he accepted that while there is no requirement to return a party directly to her country of origin, the CBSA endeavours to avoid sending people to countries where there is a chance that that they will be returned to Canada. It was open to the extradition judge to accept this evidence.

[15] With respect to the issue of the CBSA officials "stopping the clock" on the appellant's detention review under s. 57(1) of the IRPA, we see no error in the extradition judge's conclusion that any misunderstanding on the part of a CBSA official regarding the operation of the 48-hour period did not play any role in the appellant's case. The officer who misunderstood the effect of weekends and holidays on the 48-hour period played no role in the appellant's detention and only became aware of her existence on January 17, 2012, at approximately 3:45 p.m.

[16] We find no palpable and overriding error in the extradition judge's assessment of the evidence.

[17] At their essence, the appellant's submissions amount to an invitation to this court to reweigh the evidence and substitute its discretion for that of the extradition judge. That, of course, is not the function of an appellate court. This is especially true in a case such as the case at bar where we are reviewing the discretionary decision of a judge in his determination of whether this was one of the clearest of cases warranting the imposition of a remedy of last resort.

[18] In her application for judicial review, the appellant seeks an order setting aside the surrender order or, in the alternative, requests an order for additional disclosure of documents to be [page627] used on a redetermination by the minister. No specific arguments regarding the reasonableness of the minster's decision were raised in the appellant's factum or in oral submissions, and we see no basis to interfere with the minister's decision. Moreover, upon our review of the testimony of the CBSA officials, we are not satisfied that there is any evidence of material non-disclosure.

[19] Finally, the appellant seeks leave to adduce fresh evidence regarding the issue of whether there was a lockdown on January 16, 2012 at the Vanier Centre for Women, where she was being held. The application to adduce this new evidence is denied for two reasons.

[20] First, the appellant has not offered any adequate explanation as to why she did not pursue her inquiries regarding the lockdown until August of 2013, some nine months after the hearing of the evidence.

[21] Second, this evidence could only conceivably be relevant to the stay application if the appellant could establish that a CBSA official knew or ought to have known that there was no lockdown and that he/she purposely delayed the minister's delegate review with the intention of assisting the United States with its extradition request. The proposed evidence is not capable of supporting this assertion. There was no evidence at the hearing and no subsequent evidence produced to suggest that the officials were aware or ought to have been aware that there was no lockdown at the facility. Thus, the proposed evidence is not sufficiently cogent that it could reasonably be expected to have affected the decision of the extradition judge to deny the stay application, and, accordingly, the application for the admission of the fresh evidence is denied.

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

Appeal and application dismissed.

End of Document