Court of Appeal for Ontario

Date: 2018-02-09

Docket: C62707 and C63629

Judges: MacFarland, Pardu and Benotto JJ.A.

Between

Her Majesty the Queen Respondent

and

Tzvi Lexier Applicant (Appellant)

Counsel

Nicolas M. Rouleau and Daniel C. Santoro, for the appellant

Heather Graham, for the respondent

Heard: January 30, 2018

On appeal from: the order for committal entered on September 2, 2016 by Justice Katherine B. Corrick of the Superior Court of Justice and the decision of the Minister of Justice to surrender the appellant.

Reasons for Decision

[1] The appellant appeals his committal for extradition to the United States of America and, by way of judicial review, seeks to quash the surrender order of the Minister of Justice.

[2] The conduct underlying the request involved the appellant's management of a business that sold pharmaceuticals to doctors and clinics in the U.S. without complying with the American regulatory regime governing sales of prescription drugs. The companies managed by the appellant generated some 18 million dollars in revenue by acquiring drugs in other countries and selling them in the United States at much lower prices than those approved by the American regulatory agencies.

[3] The appellant concedes that he participated in that scheme, but says that the evidence at the committal hearing did not justify a committal for fraud. He argues that there was no deprivation and that there was no misrepresentation as to the nature of the drugs.

[4] The Authority to Proceed ("ATP") authorized the Attorney General to seek a committal on charges of fraud and possession of property obtained by crime. The committal hearing proceeded on that basis and the appellant was committed for these crimes.

[5] The Minister then surrendered the appellant to the U.S. for conspiracy (not fraud) and the unlicensed distribution of prescription drugs.

[6] The appellant submits that the process was unfair because he did not have an opportunity to respond to the allegations of conspiracy, which is in essence a different offence than fraud. In addition, he submits that:

(a) the committal judge erred when she did not compel disclosure of the identities of the anonymous witnesses at the hearing;

(b) there was insufficient evidence of the appellant's participation in the fraud alleged; and

(c) the Minister's decision to surrender on charges of conspiracy was unreasonable when fraud, not conspiracy, was the offence named in the ATP.

[7] We reject these submissions.

Anonymous Witnesses and Disclosure

[8] The committal judge lacked the jurisdiction to require the foreign state to disclose the names of the witnesses: U.S.A. v. Khadr, [2007] O.J. No 3140, at para. 51 (S.C.); U.S.A. v. Su Go, [2008] O.J. No. 3012, at para. 22 (S.C.). Nor was there an air of reality to the appellant's assertion that the witnesses could have recanted. The main cooperating witnesses pleaded guilty to charges relating to the scheme. We are not satisfied that any unfairness to the appellant resulted in this case.

Double Criminality and Possession of Property Obtained by Crime

[9] Although the appellant focused his submissions on the allegation of fraud, the ATP also listed the charge of possession of property obtained by crime. The evidence supported this charge and the appellant did not seriously contest it. This satisfied the double criminality requirement on committal without reference to the fraud charge. The Canadian offence of possession of property obtained by crime, as specified in s. 354 of the Criminal Code, R.S.C. 1985, c. C-46, provides that:

Everyone commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from

(a) the commission in Canada of an offence punishable by indictment; or

(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.

[10] Section 31.2 of the Food and Drug Act, R.S.C. 1985, c. F-27 provides that every person who contravenes any provision of the act or regulations is guilty of an indictable or summary conviction offence. The Food and Drug Regulations, C.R.C., c. 870 then provide for the licensing of persons who import drugs and requires that they apply for permits.[1]

[11] As such, the same conduct attributed to the appellant in the U.S. would have been criminal, and punishable by indictment, had it occurred in Canada. It is therefore not necessary to consider the sufficiency of the evidence relating to fraud, despite the potential gaps in the evidence relating to fraud as identified by the appellant.

Ministerial Discretion in Surrender Orders

[12] Once the appellant was committed, the Extradition Act, S.C. 1999, c. 18, s. 58(b) gave the Minister a broad discretion to describe the offence as the Minister saw fit – unfettered by any restraints in the ATP or the evidence in support of committal. The Supreme Court made this clear in Canada (Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170, at para. 41:

Nothing in s. 58(b) requires that the Minister match or "align" the surrender offence with that listed in the ATP or the committal order, nor with the evidence adduced at the hearing. In fact, quite the contrary: s. 58(b) provides the Minister with flexibility in crafting an order of surrender, and clearly contemplates that the wording of the surrender order may differ from that of the ATP and the order of committal…

[Italics in original.]

[13] Likewise, in U.S.A. v. Barbu, 2010 ONCA 891, at para. 37, leave to appeal refused [2011] S.C.C.A. No. 66, this court cited the Supreme Court's decision in Canada (Minister of Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170, at para. 45 that: "the words of the Act made it clear that 'as long as the conduct supports a Canadian offence, it does not matter what the offence might be or how the constituent elements are described in Canada. The person is liable to extradition'." (citation omitted). There was no procedural unfairness in the Minister's surrender decision. The essence of the conduct described in the ATP and the Record of the Case was the same as in the surrender order – carrying on the business of selling pharmaceuticals and deliberately bypassing the American regulatory regime while doing so.

Conclusion

[14] In summary, the appellant was properly committed on one of the charges in the ATP and the Minister did not act unfairly in exercising the discretion to surrender the appellant on charges of conspiracy.

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

"J. MacFarland J.A."

"G. Pardu J.A."

"M.L. Benotto J.A."

[1] See ss. G.02.001 to G.02.003, for example.