United States of America v. Cotroni; United States of America v. El Zein, 1989 CanLII 106 (SCC), [1989] 1 SCR 1469

United States of America v. Cotroni; United States of America v. El Zein, 1989 CanLII 106 (SCC), [1989] 1 SCR 1469

United States of America v. Cotroni; United States of America v. El Zein, 1989 CanLII 106 (SCC), [1989] 1 SCR 1469

United States of America Appellant

v.

Frank Santo Cotroni Respondent

and between

United States of America Appellant

v.

Samir El Zein Respondent

indexed as: united states of america v. cotroni; united states of america v. el zein

File Nos: 20035, 20036.

*1988: May 5.

*Present: Beetz, Wilson, Le Dain, La Forest and L'Heureux‑Dubé JJ.

**Re‑hearing: 1989: February 22, 23; 1989: June 8.

**Present: Dickson C.J. and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.

on appeal from the court of appeal for quebec

Constitutional law -- Charter of Rights -- Right of Canadian citizen to remain in Canada -- Extradition -- Conspiracy to import drugs into U.S.A. from Canada -- Actions of accused taking place in Canada -- Offence existing under both U.S. law and Canadian law -- Whether or not extradition of Canadian citizen under these circumstances an infringement of citizen's right to remain in Canada -- If so, whether or not extradition justifiable under s. 1 of the Charter -- Canadian Charter of Rights and Freedoms, ss. 1, 6(1).

Extradition -- Canadian citizens involved in conspiracy to import drugs into U.S.A. from Canada -- Actions of accused taking place in Canada ‑‑ Offence existing under both U.S. law and Canadian law -- Whether or not extradition of Canadian citizen under these circumstances an infringement of citizen's right to remain in Canada -- If so, whether or not extradition justifiable under s. 1 of the Charter.

Appellants are Canadian citizens who were arrested in Canada for separate offences pursuant to warrants issued under the Extradition Act and the Extradition Treaty between Canada and the United States. Both were alleged to have participated in a conspiracy to import and distribute heroin in the United States; El Zein was also alleged to have imported heroin into the United States. The appellants' actions which related to the alleged offences took place when they were in Canada and appellants could have been tried under Canadian law. The United States sought extradition, committal for extradition was ordered in each case and applications for habeas corpus with certiorari in aid were dismissed. The Quebec Court of Appeal quashed the committals. The constitutional questions before this Court queried (1) whether the surrender of a Canadian citizen to a foreign state constituted an infringement of the s. 6(1) Charter right to remain in Canada and, (2) if so, whether surrender here constituted a reasonable limit on that right under s. 1.

Held (Wilson and Sopinka JJ. dissenting): The appeals should be allowed; both constitutional questions should be answered in the affirmative.

Per Dickson C.J. and La Forest, L'Heureux‑Dubé, Gonthier and Cory JJ.: The extradition of a Canadian citizen prima facie infringes the citizen's right to remain in Canada as guaranteed by s. 6(1) of the Charter -- a right to be interfered with only if justified as being required to meet a reasonable state purpose. This Charter right would have been drafted differently if it were to include only protection from expulsion and banishment or exile. Its central thrust, nevertheless, is against exile and banishment for the purpose of excluding membership in the national community. Extradition is not directed to that purpose and lies at the outer edges of the core values being protected by the provision.

The objectives underlying extradition are pressing and substantial and are sufficiently important to make it a reasonable limit -- within the meaning of s. 1 and assuming the other requirements of s. 1 are met -- to the Charter right set out in s. 6(1). The investigation, prosecution and suppression of crime for the protection of the citizen and the maintenance of peace and public order is an important goal of all organized societies. The pursuit of that goal cannot realistically be confined within national boundaries. The objectives of extradition go beyond that of suppressing crime, simpliciter, and include bringing fugitives to justice for the proper determination of their guilt or innocence in a proper hearing.

An extradition may be rationally connected to the objectives underlying extradition notwithstanding the fact that Canada has sufficient interest to prosecute for the same acts. It is often better that a crime be prosecuted where its harmful impact is felt and where the witnesses and the persons most interested in bringing the criminal to justice reside.

The Oakes test should not be applied in an overly rigid and mechanistic fashion: the language of the Charter invites a measure of flexibility. While the rights guaranteed by the Charter must be given priority in the equation, the underlying values must be sensitively weighed in a particular context against other values of a free and democratic society sought to be achieved by the legislature.

Extradition impairs the right under s. 6(1) as little as is reasonably possible. Extradition practices have been tailored as much as possible for the protection of the liberty of the individual and accord the same kinds of rights (though in a necessarily attenuated form) as are afforded to an accused under ss. 7 and 11 of the Charter. The important and substantial objectives which underlie extradition and which are essential to the maintenance of a free and democratic society warrant this somewhat peripheral Charter infringement.

In the case at bar, respondents were physically present in Canada when they allegedly participated in the transactions in respect of which they stand charged. These alleged transactions, however, were of a transnational nature. While continued physical presence in Canada may be relevant under ss. 1 and 6 of the Charter, the locus of wrongdoing is not. The right to remain in Canada, furthermore, is not more affected by the alleged crime's being committed outside Canada as opposed to inside Canada.

A general exception for a Canadian citizen who could be charged in Canada would unduly interfere with the objectives of extradition. Considerations relating to effective prosecution, the availability of evidence, initiative for investigation and to the impossibly difficult task of determining the country best suited to try the case by judicial examination, go beyond mere administrative convenience and touch the very purpose underlying extradition. In particular, the interests of society in bringing a fugitive to justice at a trial where his or her guilt or innocence can be properly determined would be seriously impaired. Such an approach, moreover, would weaken the system generally, and so the objectives it serves, by sapping the trust and good faith that must exist between nations and their officials and law enforcement agencies at many levels.

Justification for the limitation of the right under s. 1 is not vitiated by the fact that the question of whether or not extradition will take place is left to the discretion of the Attorney General of Canada or of a province. The principal discretion involved is whether or not to prosecute and the reasons justifying that discretion underlie the discretion of deciding whether or not a Canadian should be prosecuted in Canada or abroad. In exercising this discretion, a citizen's s. 6(1) rights must be given due weight. In practice, the decision whether to prosecute or not to prosecute in this country and allow the authorities in another country to seek extradition, is made following consultations between the appropriate authorities in the two countries when various factors, including nationality, are considered in weighing the interests of the two countries in the prosecution.

The executive discretion to surrender was of little relevance here.

Per Wilson J. (dissenting): Section 6(1) of the Charter was designed to protect the right of a Canadian citizen to choose of his own volition to enter, remain in or leave Canada. The language of s. 6(1) is clear and unambiguous. Had it been the intention that s. 6(1) address only a citizen's right not to be exiled or banished, the section would have been framed in more specific terms.

The locus of the wrongdoing is very relevant in any attempt to justify extradition as a reasonable limit on a Canadian citizen's right to remain in Canada. It is often the key factor connecting the accused to the requesting state. The right of a citizen to remain in Canada need not be violated when the crime has been committed by a Canadian in Canada and is punishable by Canadian law. He can be brought to justice right here. It is otherwise when the crime has been committed in the requesting state. The argument for extradition being a reasonable limit under s. 1 is clearly much stronger in the latter case. More persuasive reasons than convenience of prosecution are required to justify the violation of a right expressly guaranteed to Canadian citizens in the Charter. This Charter right is not a trivial one nor can its breach be viewed as peripheral.

The executive branch of government in exercising its discretionary powers as to whether or not to extradite or whether or not to prosecute is bound by the Charter. It has no discretion as to whether or not it will respect guaranteed rights. Its discretion is limited by the Charter and not vice versa.

The control of trans‑border crime is of sufficiently pressing and substantial concern to warrant a legislative limit on the citizen's right to remain in Canada. The proportionality test, however, was not met. Extradition, while it may be rationally connected in general to the objective of controlling trans‑border crime, does not impair the s. 6(1) right "as little as possible" on the particular facts of these appeals. The objective could have been achieved by prosecuting respondents in Canada and so have avoided a contravention of s. 6(1) of the Charter entirely. A flexible approach might be taken with respect to proportionality in some cases but careful scrutiny of a legislative scheme should not be abandoned where that scheme directly abridges a guaranteed right, particularly in relation to an aspect of the criminal law.

The comity of nations fostered by extradition would not be adversely affected if extradition were to be denied in cases such as the present.

Per Sopinka J. (dissenting): For the reasons given by Wilson J., extradition of a citizen who can be tried in Canada is not a reasonable limit and extradition in this case would constitute a breach of s. 6(1) which has not been justified under s. 1 of the Charter. The implications arising from the majority decision, however, need be expressed.

The infringement of s. 6(1) of the Charter resulting from extradition is not peripheral: countries to which a Canadian can be extradited do not recognize the presumption of innocence or the right to remain silent; do not permit bail; have no independent bar; and still retain the death penalty for a number of offences. Any enforceable rules of law designed to protect the citizen make no distinction as to the nature of the requesting state. Further, little protection can be afforded by matters considered at the time of treaty negotiations because many of the treaties are old and the political and legal nature of many states has drastically changed in the interim.

The practice that the decision to extradite is made after consultations between the authorities of Canada and the requesting state is only a practice and is not reviewable unless a discretion was exercised for an improper or arbitrary motive. It is neither "a limit prescribed by law" nor crafted to lessen the impact of a breach of s. 6(1) and so cannot justify that breach.

A decision to prosecute in Canada will not protect the citizen against extradition unless the treaty confers a discretion in Canada not to extradite its own citizens. This discretion is a political matter. Accordingly, whether a decision to prosecute will avail will depend on the general policy of the Canadian government. This policy is not expressed in any instrument having the force of law.

A law cannot be salvaged by relying on the discretion of the prosecutor not to apply the law where it would result in a violation of the Charter. Such discretion is not circumscribed by guidelines enforceable at law.

Cases Cited

By La Forest J.

Applied: R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; considered: Re Federal Republic of Germany and Rauca (1983), 1983 1774 (ON CA), 4 C.C.C. (3d) 385; Canada v. Schmidt, 1987 48 (SCC), [1987] 1 S.C.R. 500; R. v. Edwards Books and Art Ltd., 1986 12 (SCC), [1986] 2 S.C.R. 713; referred to: Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486; Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; Brickman v. Federal Republic of Germany, App. 1, No. 6242/73, C.D. 46; R. v. Governor of Pentonville Prison, ex parte Budlong, [1980] 1 All E.R. 701; R. v. Whyte, 1988 47 (SCC), [1988] 2 S.C.R. 3; Libman v. The Queen, 1985 51 (SCC), [1985] 2 S.C.R. 178; Director of Public Prosecutions v. Doot, [1973] A.C. 807; R. v. Jones, 1986 32 (SCC), [1986] 2 S.C.R. 284; Re Burley (1865), 60 B.F.S.P. 1241; R. v. Schwartz, 1988 11 (SCC), [1988] 2 S.C.R. 443; United States of America v. Swystun, (1987), 1987 115 (MB QB), 50 Man. R. (2d) 129; Smythe v. The Queen, 1971 831 (SCC), [1971] S.C.R. 680; R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309; R. v. Beare, 1988 126 (SCC), [1988] 2 S.C.R. 387; R. v. Smith (Edward Dewey), 1987 64 (SCC), [1987] 1 S.C.R. 1045.

By Wilson J. (dissenting)

R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; Singh v. Minister of Employment and Immigration, 1985 65 (SCC), [1985] 1 S.C.R. 177; Re Federal Republic of Germany and Rauca (1983), 1983 1774 (ON CA), 4 C.C.C. (3d) 385; Canada v. Schmidt, 1987 48 (SCC), [1987] 1 S.C.R. 500; Operation Dismantle Inc. v. The Queen, 1985 74 (SCC), [1985] 1 S.C.R. 441; United States of America v. Swystun, (1987), 1987 115 (MB QB), 50 Man. R. (2d) 129; R. v. Edwards Books and Art Ltd., 1986 12 (SCC), [1986] 2 S.C.R. 713.

By Sopinka J. (dissenting)

United States of America v. Swystun (1987), 1987 115 (MB QB), 50 Man. R. (2d) 129; R. v. Smith (Edward Dewey), 1987 64 (SCC), [1987] 1 S.C.R. 1045; Canada v. Schmidt, 1987 48 (SCC), [1987] 1 S.C.R. 500.

Statutes and Regulations Cited

Canadian Bill of Rights, R.S.C. 1970, App. III, s. 2(a).

Canadian Charter of Rights and Freedoms, ss. 1, 6(1), 7.

Constitution Act, 1982, s. 52(1).

Criminal Code, R.S.C. 1970, c. C‑34, s. 423(1)(d).

Extradition Act, R.S.C. 1970, c. E‑21, s. 3.

Narcotic Control Act, R.S.C. 1970, c. N‑1, s. 5.

Transfer of Offenders Act, S.C. 1977‑78, c. 9.

Authors Cited

Canada. Parliament. Special Joint Committee on the Constitution of Canada. Minutes and Proceedings of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada. First Session of the Thirty-second Parliament, 1980-81. Issue No. 46. Ottawa: 1981.

Castel, J. G. and Sharon A. Williams. "The Extradition of Canadian Citizens and Sections 1 and 6(1) of the Canadian Charter of Rights and Freedoms", in The Canadian Yearbook of International Law, vol. 25, published under the auspices of The Canadian Branch, International Law Association. Vancouver: University of British Columbia Press, 1987.

Council of Europe. Explanatory Reports on the Second to Fifth Protocols to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Strasbourg: 1971.

Extradition Treaty between Canada and the United States, Canada Treaty Series, 1976.

Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Securing certain Rights and Freedoms other than Those Already Included in the Convention and in the First Protocol Thereto, European Convention on Human Rights, Article 3, paragraph 1, European Treaty Series, No. 46.

Van Dijk, P. and G. J. H. Van Hoof. Theory and Practice of the European Convention on Human Rights. Deventer, The Netherlands: Kluwer Law and Taxation Publishers, 1984.

APPEAL (United States of America v. Cotroni) from a judgment of the Quebec Court of Appeal (1986), 1986 7323 (QC CA), 2 Q.A.C. 280, allowing an appeal a judgment of Mackay J. dismissing an application for habeas corpus with certiorari in aid with respect to an extradition order issued by Phelan J. Appeal allowed, Wilson and Sopinka JJ. dissenting; both constitutional questions should be answered in the affirmative.

APPEAL (United States of America v. El Zein) from a judgment of the Quebec Court of Appeal (1986), 1986 4657 (QC CA), 29 C.C.C. (3d) 560, [1986] R.J.Q. 1740, allowing an appeal a judgment of Phelan J. dismissing an application for habeas corpus with certiorari in aid with respect to an extradition order issued by Downs J. Appeal allowed, Wilson and Sopinka JJ. dissenting; both constitutional questions should be answered in the affirmative.

Michel Vien and James Brunton, for the appellant.

Francis Brabant and Simon Venne, for the respondent Frank Santo Cotroni.

Christian Desrosiers, for the respondent Samir El Zein.

La Forest J.

The judgment of Dickson C.J. and La Forest, L'Heureux-Dubé, Gonthier and Cory JJ. was delivered by

LA FOREST J. -- The principal issues in each of these appeals are set forth in the constitutional questions as follows:

1.Does the surrender of a Canadian citizen to a foreign state constitute an infringement of his right to remain in Canada as set out in s. 6(1) of the Canadian Charter of Rights and Freedoms?

2.If the surrender of such citizen constitutes a prima facie infringement of his right to remain in Canada, does the surrender of respondent in the circumstances of this case constitute a reasonable limit under s. 1 of the Canadian Charter of Rights and Freedoms?

Background

Mr. Cotroni, a Canadian citizen, was arrested in Canada on August 30, 1983, pursuant to a warrant issued under the authority of the Extradition Act, R.S.C. 1970, c. E-21, and the Extradition Treaty between Canada and the United States, CTS 1976. The United States requested the extradition of Mr. Cotroni on a charge in that country of conspiracy to possess and distribute heroin. All his actions relating to the alleged conspiracy took place while he was in Canada.

In brief, the conspiracy alleged involved the importation and sale of the drug to alleged accomplices of Cotroni in the United States. Delivery of the drug and payment would appear to have taken place in Canada, although most of the prosecution witnesses and the documentary evidence are in the United States. The accused's personal involvement was effectively confined to giving instructions to his accomplices in the United States and one in Canada by telephone in Montréal.

The extradition judge, Phelan J., ordered the committal of the accused for surrender. Cotroni then applied for the issue of a writ of habeas corpus with certiorari in aid before Mackay J., but this application was dismissed.

Cotroni then appealed to the Court of Appeal of Quebec on a variety of grounds, most of which are irrelevant to this appeal; see (1986), 1986 7323 (QC CA), 2 Q.A.C. 280. All but one of these were dismissed. However, the court (Bisson, Jacques and LeBel JJ.A.) allowed the appeal and quashed the order of committal on the ground that the extradition of Cotroni infringed s. 6(1) of the Canadian Charter of Rights and Freedoms and was not, in the particular circumstances of the case, justifiable as a reasonable limit under s. 1.

LeBel J.A. (with whom Bisson J.A. concurred) noted that Cotroni could be prosecuted in Canada as well as in the United States, and that the most important elements of the crime had taken place in Canada. Consistent with that court's earlier judgment in the El Zein case, he concluded that extradition under these circumstances did not meet the test set forth by this Court in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103. While the objectives sought by extradition, the maintenance of law and order and the suppression of crime on the international level in accordance with Canada's international obligations, were sufficient to warrant interference with a Charter right, these objectives could be met without infringing the right guaranteed by s. 6(1). Cotroni could be prosecuted in this country, so his extradition would be unreasonable and disproportionate. Jacques J.A., who had delivered the opinion of the court in El Zein, expressed similar views.

The facts of the El Zein appeal are rather similar and raise the same constitutional issues. On March 16, 1984, Mr. El Zein, a Canadian citizen, met two individuals in Montréal and gave them a package containing 700 grams of heroin. The two individuals were later arrested by the American customs authorities at the Champlain, New York border crossing, and the 700 grams of heroin were seized.

On December 17, 1984, Mr. El Zein was arrested under a warrant issued pursuant to the Extradition Act and the Extradition Treaty between Canada and the United States. The United States requested his extradition for importation of heroin, conspiracy to import and conspiracy to traffic. As in the Cotroni case, all of El Zein's personal involvement concerning the alleged offences took place in Canada.

Following the extradition hearing, El Zein was committed for surrender by Downs J. of the Quebec Superior Court. An application for habeas corpus with certiorari in aid was dismissed by Phelan J., but on appeal to the Quebec Court of Appeal (1986), 29 C.C.C. (3d) 560, (Bisson, Jacques and LeBel JJ.A.) this decision was reversed and the appellant was released.

Jacques J.A., who gave the principal judgment, held that the extradition of a Canadian citizen for a crime under a foreign law does not constitute a reasonable limit to the right of a citizen to remain in Canada where the facts on which the charge is based occurred in Canada and constitute a crime here. In his view, extradition under these circumstances did not meet either the test of rationality or minimum impairment set forth in R. v. Oakes, supra. The objective sought -‑ the suppression of crime -‑ could be achieved in this case by prosecuting the respondent in Canada where, for all practical purposes, the act charged occurred.

Leave to appeal to this Court from both decisions was then sought and granted.

Section 6(1) of the Charter

Section 6(1) of the Charter provides that "Every citizen of Canada has the right to . . . remain in . . . Canada". The courts below held that extraditing a Canadian citizen constitutes an infringement of this right by forcing a citizen to leave Canada, and justification for extradition, therefore, had to be sought under s. 1. This had, in effect, been conceded by counsel for the United States.

In this Court, however, counsel argued for a flexible, purposive approach which, he maintained, should lead to the conclusion that s. 6(1) would only apply when a Canadian citizen is threatened with exile, banishment or expulsion. Section 6(1) should not apply, the argument continues, unless governmental action arbitrarily or totally deprives a citizen of his or her right to remain in Canada. Extradition is not aimed at the deprivation of the right; it is temporary in nature and does not affect citizenship. It has existed in this country for over a hundred years.

In support of this proposition, counsel cited an extract from Hansard of a committee hearing in which the Deputy Minister of Justice and an opposition member indicated their view that the right under s. 6(1) was not absolute and did not protect against extradition. The extract (Debates of the House of Commons, January 1981, 46:118) reads:

Mr. Tassé: Perhaps I might mention that we do not see Clause 6 as being an absolute right: I will give you an example of a situation where a citizen would, in effect, lose his right to remain in the country: that would be by virtue of an order under the Extradition Act: if someone committed an offence in another country and he is sought in this country, he could be surrendered to the other country.

The same thing would apply in the case of countries belonging to the Commonwealth to which the Extradition Act does not apply, but the Fugitive Offenders Act does apply. In that situation a Canadian would not have the right to remain in the country by virtue of the offences he might have committed in another country and for which he is sought so that justice could be applied.

Mr. Epp: Mr. Tassé, I do not think that is really what we are dealing with. That is not arbitrary and under the Extradition Act there is a process to which the person is entitled before that extradition order can in fact be finalized.

The committee debates are certainly of interest, but as the Court observed in Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, at pp. 508-9, they can only be accorded minimal weight in interpreting the Charter. In fact, whatever weight one accords to the statements here, they give no enlightenment on whether the right itself should be restricted or whether extradition should be dealt with as a reasonable limitation to that right under s. 1 of the Charter.

In approaching the matter, I begin by observing that a Constitution must be approached from a broad perspective. In particular, this Court has on several occasions underlined that the rights under the Charter must be interpreted generously so as to fulfill its purpose of securing for the individual the full benefit of the Charter's protection (see the remarks of Dickson C.J. in Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at pp. 155-56; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, at p. 344). The intimate relation between a citizen and his country invites this approach in this context. The right to remain in one's country is of such a character that if it is to be interfered with, such interference must be justified as being required to meet a reasonable state purpose.

This is consistent with the ordinary meaning of the words "right to . . . remain in . . . Canada". Section 6(1) is phrased in broad terms. It does not state that a citizen has the right not to be arbitrarily expelled from Canada; it instead guarantees the right to remain in Canada. Had the intention of the Charter been solely to protect a person from being expelled, banished or exiled, it could have been so framed.

This approach is fortified by the fact that in enacting this clause several familiar models appear to have been ignored. The Canadian Bill of Rights, R.S.C. 1970, App. III, for example, more narrowly protects a person from exile (s. 2(a)), and the European Convention on Human Rights, 4th Protocol, Article 3, paragraph 1, states that a national shall not be "expelled". The Explanatory Reports on the Second to Fifth Protocols to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1971) explains that "It was understood that extradition was outside the scope of this paragraph." This approach is consistent with the International Covenant on Political Rights, Article 12, which contains no right to remain in one's own country, although it contains all the other rights listed in ss. 6(1) and 6(2)(a) of the Charter. A similar approach was adopted in Articles 2 and 3 of the Fourth Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms. In the light of these precedents, one would have thought these more specific words would have been used rather than according a general right to remain in Canada if a completely restricted right had been intended. I, therefore, conclude that extradition prima facie infringes upon the right guaranteed by s. 6(1) of the Charter.

That having been said, it seems to me that these precedents also reveal that the infringement to s. 6(1) that results from extradition lies at the outer edges of the core values sought to be protected by that provision. European authorities especially make a sharp distinction between expulsion and extradition; see Brickman v. Federal Republic of Germany, App. 1, No. 6242/73, C.D. 46, at pp. 202 and 210; P. Van Dijk and G. J. H. Van Hoof, Theory and Practice of the European Convention on Human Rights (1984), at p. 368. Like the international and constitutional documents I have referred to, the central thrust of s. 6(1) is against exile and banishment, the purpose of which is the exclusion of membership in the national community. While I would not wish to trivialize the effects of extradition on the individual, it is clear that extradition is not directed to the purpose. The words of Griffiths L.J. in contrasting extradition and deportation in R. v. Governor of Pentonville Prison, ex parte Budlong, [1980] 1 All E.R. 701, are relevant here. He said at p. 716:

I regard extradition as far more closely analogous to the implementation of domestic criminal law than to deportation. It is in no true sense a banishment from our shores as is deportation . . . .

An accused may return to Canada following his trial and acquittal or, if he has been convicted, after he has served his sentence. The impact of extradition on the rights of a citizen to remain in Canada appears to me to be of secondary importance. In fact, so far as Canada and the United States are concerned, a person convicted may, in some cases, be permitted to serve his sentence in Canada; see Transfer of Offenders Act, S.C. 1977-78, c. 9.

What is more, as I will attempt to demonstrate, extradition serves to promote a number of values that are central to a free and democratic society. These are considerations, however, that are relevant to the question whether and to what extent the Extradition Act and the treaty it implements can be saved under s. 1 of the Charter.

Before considering s. 1, however, I should point out that the conclusion that extradition infringes upon s. 6(1) of the Charter is in accord with previous judicial authorities. In Re Federal Republic of Germany and Rauca (1983), 1983 1774 (ON CA), 4 C.C.C. (3d) 385, the Ontario Court of Appeal held that extradition prima facie violates a citizen's right to remain in Canada as guaranteed by s. 6(1) of the Charter. The court went on, however, to find that it was a reasonable limit under s. 1. In Canada v. Schmidt, 1987 48 (SCC), [1987] 1 S.C.R. 500, this Court, though in obiter, endorsed the approach taken in Rauca, supra, in the following passage at p. 520:

As will be evident from what I have already said, I am far from thinking that the Charter has no application to extradition. The surrender of a person to a foreign country may obviously affect a number of Charter rights. In Rauca, supra, for example, the Ontario Court of Appeal recognized that extradition intruded on a citizen's right under s. 6 to remain in Canada, although it also found that the beneficial aspects of the procedure in preventing malefactors from evading justice, a procedure widely adopted all over the world, were sufficient to sustain it as a reasonable limit under s. 1 of the Charter. Section 6 was not raised in this case, though Schmidt is a Canadian citizen, no doubt because her counsel believed, as I do, that it was properly disposed of in the Rauca case.

I turn, then, to examine whether the assumption made in Canada v. Schmidt that extradition can be justified under s. 1 of the Charter can be supported.

Section 1 of the Charter

Section 1 of the Charter "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". As we saw, it was held in Re Federal Republic of Germany and Rauca, supra, (a holding approved, if obiter, by this Court in Canada v. Schmidt, supra) that extradition in general constitutes a reasonable limit within s. 1 to the right to remain in Canada set out in s. 6(1) of the Charter. The court stated in Re Federal Republic of Germany and Rauca, at p. 406:

When the rationale and purpose of the Extradition Act and treaty under it are looked at (having in mind that crime should not go unpunished), Canada's obligations to the international community considered and the history of such legislation in free and democratic societies examined, in our view, the burden of establishing that the limit imposed by the Extradition Act and the treaty on s. 6(1) of the Charter is a reasonable one demonstrably justified in a free and democratic society has been discharged by the respondents.

The court in that case was also of the view that even if the alleged crime could be prosecuted in Canada, the extradition of the accused would still be a reasonable limit on his right to remain in Canada. It stated, at p. 405:

Counsel for the appellant suggested that there was a possibility that the appellant could be prosecuted in Canada for the crimes with which he had been charged. If there was this alternative, the argument was that extradition was not a reasonable limit on the appellant's right as a citizen to remain in Canada. This submission was not pressed strongly and, like the Chief Justice of the High Court, we are not persuaded that there is, at present, a right to prosecute the appellant for the recited crimes in Canada. Even if there were such a right to prosecute, in light of the described purpose and reason for and lengthy history of extradition, it would not turn a reasonable limit on the citizen's right to remain in this country into an unreasonable limit.

The appellant naturally relies on these authorities.

Because of these authorities, the respondent Cotroni tended to shy away from contesting the general proposition that extradition constituted a reasonable limit on the right to remain in Canada, but stressed instead that it was not a reasonable limit under the circumstances of this case. Nonetheless, the argument advanced on behalf of the respondent El Zein that Canadian citizens should be tried in Canada for crimes committed abroad rather than be subjected to extradition really raises the general issue, and I shall therefore approach it frontally.

It is now well established that the onus of justifying a law creating a limitation to a Charter right lies with the party seeking to uphold that limitation, here the appellant; see R. v. Oakes, supra, which sets forth criteria for determining whether such a limitation is reasonable within s. 1 of the Charter. These criteria were recently summarized by Dickson C.J. in R. v. Whyte, 1988 47 (SCC), [1988] 2 S.C.R. 3, at p. 20, as follows:

There are two major criteria. First, the objective which the measure responsible for the limit on a right or freedom is designed to serve must be sufficiently important to permit overriding the constitutionally-protected right or freedom (Oakes, supra, at p. 138). Second, to show that the measures are reasonable and demonstrably justified requires an analysis of the proportionality of the measures (Oakes, supra, at p. 139). There are three components to the proportionality test: the measures must be carefully designed to achieve the objective of the legislation, with a rational connection to the objective. The second component is that the measure should impair the right or freedom as little as possible. Finally, there must be proportionality between the effects of the impugned measures on the protected right and the attainment of the objective.

No one denies that the first criterion in R. v. Oakes, supra, is satisfied in these cases. The objectives sought by the legislation, the parties agree, relate to concerns that are pressing and substantial. The investigation, prosecution and suppression of crime for the protection of the citizen and the maintenance of peace and public order is an important goal of all organized societies. The pursuit of that goal cannot realistically be confined within national boundaries. That has long been the case, but it is increasingly evident today. Modern communications have shrunk the world and made McLuhan's global village a reality. The only respect paid by the international criminal community to national boundaries is when these can serve as a means to frustrate the efforts of law enforcement and judicial authorities. The trafficking in drugs, with which we are here concerned, is an international enterprise and requires effective tools of international cooperation for its investigation, prosecution and suppression. Extradition is an important and well-established tool for effecting this cooperation.

The importance of extradition for the protection of the Canadian public against crime can scarcely be exaggerated. To afford that protection, there must be arrangements that ensure prosecution not only of those who commit crimes while they are physically in Canada and escape abroad, but also of those whose acts abroad have criminal effects in this country. This requires reciprocal arrangements with other states seeking similar objectives. As I noted in Libman v. The Queen, 1985 51 (SCC), [1985] 2 S.C.R. 178, at p. 212, it would be a sad commentary on our law if it was limited to the prosecution of minor offenders while permitting more seasoned criminals to operate on a world-wide scale.

What is more, I do not think that the free and democratic society that is Canada, any more than any other modern society, should today confine itself to parochial and nationalistic concepts of community. Canadians today form part of an emerging world community from which not only benefits but responsibilities flow. This is consistent with the approach taken by this Court in Libman v. the Queen, supra, at p. 214, where after stating that we should not be indifferent to the protection of the public in other countries, I added, at p. 214:

In a shrinking world, we are all our brother's keepers. In the criminal arena this is underlined by the international cooperative schemes that have been developed among national law enforcement bodies.

In a similar vein, Lord Salmon in Director of Public Prosecutions v. Doot, [1973] A.C. 807, in a passage (at p. 834) cited with approval in Libman v. The Queen, at pp. 197-98, stated:

I do not believe that any civilised country, even assuming that its own laws do not recognize conspiracy as a criminal offence, could today have any reasonable objection to its nationals being arrested, tried and convicted by English courts in the circumstances to which I have referred. Today, crime is an international problem -‑ perhaps not least crimes connected with the illicit drug traffic ‑- and there is a great deal of cooperation between the nations to bring criminals to justice. Great care also is taken by most countries to do nothing which might help their own nationals to commit what would be crimes in other countries: see, for example, section 3(2) of the Dangerous Drugs Act 1965.

As he made clear elsewhere (at p. 831), the fact that the relevant "crimes were more likely to ruin young lives in the United States of America than in this country . . ." is not of any great moment.

There is another aspect respecting the objectives of extradition worth mentioning. As I earlier indicated, these objectives go beyond that of suppressing crime, simpliciter, and include bringing fugitives to justice for the proper determination of their guilt or innocence. (Indeed most extradition cases, like the case here, involve accused, rather than convicted persons.) Extradition thus shares one of the basic objectives of all criminal prosecutions: to discover the truth in respect of the charges brought against the accused in a proper hearing. This is one of the "interests of society" referred to by Dickson C.J. in R. v. Oakes, which must, under s. 1 of the Charter, be balanced against the interest of the individual.

These various objectives are, in my view, sufficiently important to warrant the existence of a reasonable limit to the Charter right set out in s. 6(1), assuming such limit, here extradition, meets the other relevant requirements for the application of s. 1.

Counsel for the respondents argue, however, that the extradition of the respondents in the circumstances of this case fails to meet the test of proportionality, the second major criterion enunciated in R. v. Oakes. To begin with, they say, such a measure is not rationally connected with the objectives sought to be attained. The respondents are Canadians and, they add, all their actions relating to the charges were committed in Canada (an assertion, however, that must be tempered by what I shall have to say later). From this they conclude that, rationally, the offences should be prosecuted here.

I do not doubt that Canada has a sufficient interest to warrant its prosecuting the respondents. The activities of which they are accused constitute serious antisocial acts that would permit prosecution under several criminal provisions. But as is clear from Libman v. The Queen, supra, more than one country may have jurisdiction to prosecute an accused for a crime. There are also sufficient links to the United States to warrant that country to prosecute. In fact, the injurious effects of the crime would be felt in that country, for it is there that the illicit drugs would be distributed. Nor is that all. It appears that in both cases most, if not all, of the evidence and many of the witnesses are located in the United States. As the appellants point out, the discovery of the crimes, the police inquiries and the legal proceedings relating to these cases all originated there. Without the intervention of the United States, the crimes might never have been discovered.

I see nothing irrational in surrendering criminals to another country, even when they could be prosecuted for the same acts in Canada. It is often better that a crime be prosecuted where its harmful impact is felt and where the witnesses and the persons most interested in bringing the criminal to justice reside, and what I have said about where the witnesses and evidence are located certainly makes it rational in the present case.

The more serious attack of the respondents is based on the second component of the proportionality test. In R. v. Oakes, supra, Dickson C.J. observed that "the means, even if rationally connected to the objective . . . should impair `as little as possible' the right or freedom in question". The objective of transnational crimes, the respondents say, can, in the circumstances of the present cases, be achieved without infringing on the right set forth in s. 6(1) of the Charter by prosecuting them in Canada.

The difficulty I have with this approach is that it seeks to apply the Oakes test in too rigid a fashion, without regard to the context in which it is to be applied. It must be remembered that the language of the Charter, which allows "reasonable limits", invites a measure of flexibility. As I noted in R. v. Jones, 1986 32 (SCC), [1986] 2 S.C.R. 284, at p. 300:

Though the Charter protects the individual from compulsion or restraint in violation of his rights, and a court must, as Dickson J. noted in R. v. Big M Drug Mart Ltd. [1985 69 (SCC), [1985] 1 S.C.R. 295], at p. 344, interpret the rights it enshrines in "a generous rather than a legalistic" fashion, the protection accorded them, as he has also noted, can only be "within the limits of reason" (see Hunter v. Southam Inc. [1984 33 (SCC), [1984] 2 S.C.R. 145], at p. 156).

In R. v. Edwards Books and Art Ltd., 1986 12 (SCC), [1986] 2 S.C.R. 713, four of the seven judges expressly accepted a flexible approach to the proportionality test. Having referred to R. v. Oakes and a number of earlier cases, Dickson C.J. (speaking for himself, Chouinard and Le Dain JJ.) observed at p. 768 that the Court had stated that "the nature of the proportionality test would vary depending on the circumstances". He continued at pp. 768-69:

Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the Court has been careful to avoid rigid and inflexible standards.

The Chief Justice then went on to accept a flexible approach to the proportionality test on the basis that "Legislative choices regarding alternative forms of business regulation do not generally impinge on the values and provisions of the Charter" (p. 772). Though I was prepared to go further, I was in complete agreement with all of this (p. 792).

In the performance of the balancing task under s. 1, it seems to me, a mechanistic approach must be avoided. While the rights guaranteed by the Charter must be given priority in the equation, the underlying values must be sensitively weighed in a particular context against other values of a free and democratic society sought to be promoted by the legislature. As the Ontario Court of Appeal put it in Re Federal Republic of Germany and Rauca, supra, at p. 401: "In approaching the question objectively, it is recognized that the listed rights and freedoms are never absolute and that there are always qualifications and limitations to allow for the protection of other competing interests in a democratic society."

Turning specifically to extradition, the first point to note is that the interference with the right guaranteed by s. 6(1) is not, as previously mentioned, central to the concerns addressed by that provision. Furthermore, as is indicated in Canada v. Schmidt, supra, extradition practices have been tailored as much as possible for the protection of the liberty of the individual. It accords the same kinds of rights (though in a necessarily attenuated form) as are afforded to an accused under ss. 7 and 11 of the Charter. As against this somewhat peripheral Charter infringement must be weighed the importance of the objectives sought by extradition -‑ the investigation, prosecution, repression and punishment of both national and transnational crimes for the protection of the public. These objectives, we saw, are of pressing and substantial concern. They are, in fact, essential to the maintenance of a free and democratic society. In my view, they warrant the limited interference with the right guaranteed by s. 6(1) to remain in Canada. That right, it seems to me, is infringed as little as possible, or at the very least as little as reasonably possible.

The foregoing conclusion is supported by the history of extradition in this country. Because of the facility with which criminals can escape from one country to the other, Canada and the United States have always been in the forefront of the development of this procedure. This special vulnerability ‑- strongly accentuated today -‑ made it imperative that little leniency be accorded citizens in this regard; see Re Burley (1865), 60 B.F.S.P. 1241, at p. 1261, per Richards J. For well over one hundred years, extradition has been part of the fabric of our law. Though this does not exempt it from Charter scrutiny, nevertheless, as the Ontario Court of Appeal noted in Re Federal Republic of Germany and Rauca, supra, at p. 404: "the Charter was not enacted in a vacuum and the rights set out therein must be interpreted rationally having regard to the then existing laws and, in the instant case, to the position which Canada occupies in the world and the effective history of the multitude of extradition treaties it has had with other nations". As that court also observed (pp. 404-5), the remarks taken from Hansard, previously cited, at least indicate that the problem was not absent from the minds of those charged with approving the language of the Charter.

This seems to me to be fully in accord with the following remarks of Dickson J. in R. v. Big M Drug Mart Ltd., supra, at p. 344, regarding the manner in which the Charter should be interpreted:

The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court's decision in Law Society of Upper Canada v. Skapinker, 1984 3 (SCC), [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts.

The approach I have adopted is akin to that followed by three members of this Court, the Chief Justice, Lamer J. and myself, in R. v. Jones, supra. That case concerned the pastor of a fundamentalist church who educated his children in the church basement and refused either to send his children to a public school as required by the Alberta School Act or to seek an exemption from that requirement as permitted by the Act if the school authorities determined that the children were receiving "efficient instruction". He argued, inter alia, that the requirement to seek an exemption infringed against his freedom of religion guaranteed under s. 2(a) of the Charter. Four of the judges (Beetz, McIntyre, Wilson and Le Dain JJ.), found it unnecessary to consider a s. 1 defence because, in their view, the appellant's religious rights had not been infringed, although Wilson J. added that such a defence would have failed for lack of evidence. The other three judges, however, decided the case on the basis that the appellant's religious rights had been infringed but held that the intrusion was of a minimal or peripheral character. His rights were, therefore, reasonably limited by the requirement that the education be certified as efficient because of the interest of the province, which the Court found compelling, in the "efficient instruction" of the young (p. 299).

While the infringement in the present case would not appear to be as peripheral to the core rights protected by s. 6(1) of the Charter as to be described as minimal, it should be observed that the members of the Court who relied on s. 1 in R. v. Jones also stated that the same reasoning would apply to somewhat more intrusive situations, making it clear, however, that reasonable accommodation would have to be made and, in particular, that "it would be necessary to delicately and sensitively weigh the competing interests so as to respect, as much as possible, the religious convictions of the appellant as guaranteed by the Charter" (p. 298).

As I noted earlier, the extradition arrangements we are considering here have sought to respect both the right to remain in Canada and the requirements of due process as much as possible.

As earlier noted, however, the respondents did not rely so much on the argument that extradition should not apply to citizens generally as upon the special circumstances of these cases. Indeed, the respondent Cotroni does not appear to deny that, in general, extradition is a reasonable limit on a citizen's right to remain in Canada. Both respondents argue, however, that extradition is not a reasonable limit in the circumstances of these particular cases, i.e., cases which present a situation where (1) the accused is a Canadian citizen; (2) the conduct of the accused with respect to the alleged crime took place entirely in Canada; and (3) the accused could be charged with the offence under Canadian as well as United States law.

Before going on to more general considerations respecting these submissions, I wish to make a few specific observations about them. In the first place, I think the manner in which the second point is put places a rather misleading colouration on what occurred in these cases. The respondents were undoubtedly physically present in Canada when, as it is alleged, they participated in the acts in respect which they are charged with the relevant offences. But the transactions in which they are alleged to have been engaged in were transnational in nature. The allegations are that they were designed and put into effect in cooperation with associates in the United States to have impact in that country. As such, the United States, as well as Canada, could properly exercise jurisdiction in respect of the alleged offences.

Drug traffickers organize their affairs on the basis of the international market for narcotics. Modern communication means the territoriality of wrongdoing is no longer the determining factor for criminal law jurisdiction over international crime. Why should the territoriality of the wrongdoing be so important under constitutional law? Indeed the locus of the wrongdoing seems irrelevant to the s. 6(1) Charter right which purports to allow Canadian citizens to remain physically in Canada. My view is that while continued physical presence in Canada may be relevant under ss. 1 and 6 of the Charter, the locus of wrongdoing is not.

A second observation I wish to make is that the sole difference between the situation in these cases and that approved in the passage in Re Federal Republic of Germany and Rauca, supra, at p. 405, last cited, is that the acts personally committed by Rauca took place entirely outside Canada. I am unable to understand, however, how the right to remain in Canada is more affected in one case than the other. Moreover, if the generally recognized limit does not apply where the accused may be prosecuted in Canada, it is difficult to see why Canada should be able to extradite any Canadian, for it may under international law prosecute crimes by Canadians wherever committed. Why should it not take that step to avoid violating the constitutional right accorded by s. 6?

I turn now to more general considerations. Extradition, we saw, has been a major tool of international cooperation in bringing fugitives to justice and combatting crime. But for a system of extradition to be effective, reliance must be placed on the initiative and cooperation of law enforcement and judicial and administrative bodies at many levels and in many countries. A general exception for a Canadian citizen who could be charged in Canada would, in my view, interfere unduly with the objectives of the system of extradition. It would often occur, for example, that a person could not be convicted in Canada because of lack of evidence here. Again, what initiative would law enforcement agencies in one country have to investigate a crime that could not be successfully prosecuted? As well, there are many cases where all the conspirators should be tried together. These are only a few of the difficulties that would arise. On the other hand, to require judicial examination of each individual case to see which could more effectively and fairly be tried in one country or the other would pose an impossible task and seriously interfere with the workings of the system. The present case itself is an illustration of many of the practical considerations that should be borne in mind in considering the matter. As already mentioned, the alleged crimes were discovered in the United States, the investigations and legal proceedings originated there, and most of the witnesses and other evidence are in that country. Indeed, the impact of the crimes would primarily be felt in that country. These and other factors strongly militate against the view advanced by the respondents.

These considerations go beyond mere administrative convenience. They go to the very purpose for which a system of extradition is put in place. In particular, the interests of society in bringing a fugitive to justice at a trial where his or her guilt or innocence can be properly determined would be seriously impaired. Such an approach, moreover, tends to weaken the system generally, and so the objectives it serves, by sapping the trust and good faith that must exist between nations and their officials and law enforcement agencies at many levels. In Canada v. Schmidt, supra, the Court noted at p. 524:

The present system of extradition works because courts give the treaties a fair and liberal interpretation with a view to fulfilling Canada's obligations, reducing the technicalities of criminal law to a minimum and trusting the courts in the foreign country to give the fugitive a fair trial . . . .

A comment I made in R. v. Edwards Books and Art Ltd., supra, (now approved by a majority of this Court: see R. v. Schwartz, 1988 11 (SCC), [1988] 2 S.C.R. 443, at p. 488) seems appropriate here. I stated at pp. 794-95:

Given that the objective is of pressing and substantial concern, the Legislature must be allowed adequate scope to achieve that objective. It must be remembered that the business of government is a practical one. The Constitution must be applied on a realistic basis having regard to the nature of the particular area sought to be regulated and not on an abstract theoretical plane. In interpreting the Constitution, courts must be sensitive to what Frankfurter J. in McGowan, supra, at p. 524 calls "the practical living facts" to which a legislature must respond.

The foregoing considerations are relevant to the respondent El Zein's submission that there was a readily available substitute for extradition that would not infringe on the right of a citizen to remain in Canada. Canada, he maintained, could adopt the practice followed by some European countries of refusing extradition and prosecuting their own nationals for crimes wherever committed. In a recent article, J. G. Castel and Sharon A. Williams, "The Extradition of Canadian Citizens and Sections 1 and 6(1) of the Canadian Charter of Rights and Freedoms", in The Canadian Yearbook of International Law, vol. 25 (1987), at pp. 268-69, the authors recount the widespread criticism of this practice. "This attitude of lack of faith and actual distrust", they observe, "is not in keeping with the spirit behind extradition treaties." They further observe that prosecution by the requested state does not constitute an acceptable substitute for extradition. At pages 268-69, they state:

. . . even where the requested state has jurisdiction to prosecute based on the nationality of the fugitive, it places the fugitive in a privileged position, as the state of nationality has no real interest in prosecuting him or her for an offence in a foreign state, perhaps against foreign persons, with remote sources of evidence and general lack of contact with the scene of the crime. The practical objections that can be raised constitute a grave handicap to both prosecution and defence counsel. Shearer suggests that: "[W]here the result is the acquittal of the accused -‑ the chances of which are substantially increased by trial under such conditions -‑ the charge can all too easily be made by the authorities of the locus delicti that the prosecuting State performed its duty without effort or enthusiasm."

As I noted earlier, extradition is now part of the fabric of our law. The countries where the system we are invited to adopt exists have a completely different criminal justice system, the inquisitorial system, which includes quite different rules and practices for obtaining and presenting evidence. To apply the concept in relation to those countries would require a substantial revamping of our system in a manner that would probably not meet Charter requirements. Cooperation with common law countries would be seriously limited as well. If a prosecution was held here, witnesses would frequently be required from those countries. Reciprocity would be expected for similar prosecutions there, but this might well require that Canadians be compelled to leave Canada for the purpose, a procedure that, if the rigid approach advanced is taken, would itself involve infringement of the s. 6(1) right.

Apart from these difficulties, what the respondent El Zein really asks the Court to do is to decide which of two systems should be adopted for the fulfillment of a legislative objective where many imponderables must be considered. I need not dwell on the appropriateness of this course, however, because for reasons I have already given, there are many cases where it is preferable for an accused to be tried in a foreign country rather than in Canada that can only be determined by prosecutorial discretion in a specific context. A system under which each country would prosecute its own nationals would simply not be effective. It would invite disagreement between the two countries to the detriment of international cooperative schemes for the prosecution and suppression of crime.

Counsel for the respondent, however, argued that the limitation on the right under s. 6(1) could not be justified under s. 1 because the question whether extradition will take place or not is left completely to discretion and there are no criteria set forth for the exercise of that discretion. This argument was recently dealt with and rejected by Hanssen J. in a case very similar to the present, United States of America v. Swystun (1987), 1987 115 (MB QB), 50 Man. R. (2d) 129. When analyzed, it is clear that the principal discretion involved is that of the Attorney General of Canada or of a province, as the case may be, to prosecute or not to prosecute. The effective enforcement of criminal law would be impossible if someone were not vested with that discretion (see Smythe v. The Queen, 1971 831 (SCC), [1971] S.C.R. 680, at p. 686), and this Court has on at least two occasions indicated that prosecutorial discretion is consistent with Charter requirements of fundamental justice; see R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, at p. 348; R. v. Beare, 1988 126 (SCC), [1988] 2 S.C.R. 387, at p. 411. The same reasons underlie the necessity for permitting a discretion to decide whether a Canadian should be prosecuted in Canada or abroad. Of course, the authorities must give due weight to the constitutional right of a citizen to remain in Canada. They must in good faith direct their minds to whether prosecution would be equally effective in Canada, given the existing domestic laws and international cooperative arrangements. They have an obligation flowing from s. 6(1) to assure themselves that prosecution in Canada is not a realistic option. As the Court observed in R. v. Beare, supra, at p. 411, "if, in a particular case, it was established that a discretion was exercised for improper or arbitrary motives, a remedy under s. 24 of the Charter would lie . . . ."

In practice, the decision whether to prosecute, or not to prosecute in this country and allow the authorities in another country to seek extradition, is made following consultations between the appropriate authorities in the two countries. The factors that will usually affect such a decision were recently considered by Hanssen J. in United States of America v. Swystun, supra, at pp. 133-34. These factors include:

‑where was the impact of the offence felt or likely to have been felt,

‑which jurisdiction has the greater interest in prosecuting the offence,

‑which police force played the major role in the development of the case,

‑which jurisdiction has laid charges,

‑which jurisdiction has the most comprehensive case,

‑which jurisdiction is ready to proceed to trial,

‑where is the evidence located,

‑whether the evidence is mobile,

‑the number of accused involved and whether they can be gathered together in one place for trial,

‑in what jurisdiction were most of the acts in furtherance of the crime committed,

‑the nationality and residence of the accused,

‑the severity of the sentence the accused is likely to receive in each jurisdiction.

As Hanssen J. observed, at p. 134, ". . . it is apparent from an examination of the factors listed above that although a fugitive may not have personally performed any act in the foreign jurisdiction in furtherance of the crime with which he is charged, that jurisdiction, for a variety of reasons may still be the most effective place for him to be prosecuted."

As I noted earlier, the effective prosecution and the suppression of crime is a social objective of a pressing and substantial nature, and it is imperative today that this objective be effectively pursued on the international as well as on the national plane. In doing this, I am satisfied that some infringement of the right of s. 6(1) is warranted. Speaking specifically of transnational crimes, Hanssen J., in a passage with which I am in entire agreement, stated at p. 133:

I am satisfied that this objective is of sufficient importance to warrant overriding the constitutionally protected right of a citizen to remain in Canada even when all of the alleged acts constituting the crime took place in Canada and also constitute a crime which can be prosecuted here. A general policy of refusing to extradite our citizens in such cases would reduce the effectiveness of extradition as a major tool in combatting transnational crime. The mere fact that a fugitive may be prosecuted in Canada does not necessarily lead to an effective and efficient prosecution even when all of the constituent elements of the crime occurred in Canada.

Counsel for El Zein also drew attention to the executive discretion to surrender, but I do not think it is of much relevance here. In the absence of proceedings against the accused in this country, Canada is under an international obligation to surrender a person accused of having committed a crime listed in an extradition treaty if it meets the requirements of the treaty, in particular presenting sufficient evidence before a judge to satisfy the requirements of a prima facie case. There is, it is true, some discretion in the federal government under the treaties to refuse surrender, for example, where the crime is one of a political character. There may, as well, be cases where the government, for high political purposes or for the protection of an accused, may be prepared not to conform with a treaty. But this executive discretion would rarely be exercised and is impossible to define in the abstract. That is scarcely surprising. The extradition process is not arbitrary, unfair or based on irrational considerations. As was noted in Canada v. Schmidt, supra, at p. 515, the procedure is tailored with an eye to the liberty of the individual.

I might add that I find the argument that the fact that the executive discretion to refuse surrender and the duty to present requests for extradition in court, both fall within the responsibilities of the Minister of Justice, somehow create an unacceptable conflict to have no merit. Of no substance either is the contention that the executive power to surrender, which is derived from the treaty, is not a "law" within the meaning of s. 1 of the Charter and so cannot justify the infringement of a Charter right. The executive power and the treaty derive their validity, for purposes of domestic law, from s. 3 of the Extradition Act, R.S.C. 1970, c. E-21.

Secondary Issues

In addition to the constitutional questions already discussed, the respondents raised a number of secondary issues.

One issue raised by the respondent Cotroni is whether it was necessary for the appellants to produce the tapes of intercepted telephone communications rather than the transcripts. On this issue it is sufficient to say that I agree with the conclusion reached on this point by the courts below. It raises no jurisdictional point and the weight to be attached to the evidence was for the extradition judge to determine.

For his part, the respondent El Zein briefly questioned the jurisdiction of the United States in respect of the offences he is alleged to have committed, but here too I think the issue was properly decided in the courts below, specifically by Downs J.

Finally, counsel for El Zein argued that the type of crime of which his client was charged now carried a minimum penalty of ten years and that such a penalty had been held to violate the Charter in R. v. Smith (Edward Dewey), 1987 64 (SCC), [1987] 1 S.C.R. 1045. The reason the provision in that case was struck down was because its breadth was such that it could apply to persons in circumstances that would constitute cruel and unusual punishment. It is not for this Court to pass upon the validity of the laws of other countries. If, it is true, the power to surrender were exercised in respect of a person for whom such a penalty would constitute cruel and unusual punishment, the courts could review the matter; see Canada v. Schmidt, supra, at pp. 523-24. But that is not this case. There is nothing in the record to indicate that the accused in any way fitted the description of the individual postulated in R. v. Smith (Edward Dewey) (p. 1053) -- "a young person . . . caught with only one, indeed . . . his or her first `joint of grass'".

Disposition

For these reasons, I would allow the appeals, reverse the judgments of the Court of Appeal and restore the judgments of the superior court on habeas corpus. The respondents should be committed for surrender pursuant to the orders of the extradition judges, which should be restored.

I would answer both constitutional questions in the affirmative.

Wilson J.

The following are the reasons delivered by

WILSON J. (dissenting) -- I have had an opportunity to read the reasons for judgment of my colleague Justice La Forest and, while I agree with him that the respondents' rights under s. 6(1) of the Canadian Charter of Rights and Freedoms have been infringed, I am unable to accept his conclusion that their extradition to the United States in the circumstances of this case constitutes a reasonable limit which can be demonstrably justified in a free and democratic society under s. 1 of the Charter.

1. The Facts

The facts of these cases may be summarized briefly as follows:

(A)Mr. Cotroni

(i) Mr. Cotroni is a Canadian citizen;

(ii)on August 30, 1983 he was arrested in Canada pursuant to a warrant issued under the Extradition Act, R.S.C. 1970, c. E-21, and the Extradition Treaty between Canada and the United States, C.T.S. 1976;

(iii)the warrant alleged that Mr. Cotroni participated in a conspiracy to possess and distribute heroin in the United States;

(iv)all of Cotroni's actions relating to the alleged conspiracy took place in Canada and at no time did Cotroni leave Canada.

(B) Mr. El Zein

(i)Mr. El Zein is a Canadian citizen;

(ii)on December 17, 1984 he was arrested in Canada pursuant to a warrant issued under the Extradition Act and the Extradition Treaty between Canada and the United States;

(iii)the warrant alleged that El Zein had imported heroin into the United States and that he participated in a conspiracy to import and distribute heroin in the United States;

(iv)all of El Zein's actions relating to the allegations took place in Canada and at no time did El Zein leave Canada.

The extradition of each accused to the United States was sought on the ground that the drug enforcement laws of the United States extend beyond the territorial boundaries of the United States where the object of the illegal activity is to bring the drugs into the United States. Canada has similar legislation governing the importation of drugs into and the exportation of drugs out of Canada. It is common ground that each accused could have been charged by Canadian authorities with violating s. 423(1)(d) of the Criminal Code, R.S.C. 1970, c. C-34, and s. 5 of the Narcotic Control Act, R.S.C. 1970, c. N-1.

2. The issues

At their respective extradition hearings both Cotroni and El Zein were committed for surrender to the United States. Both appealed their committals, first unsuccessfully to the Quebec Superior Court and then successfully to the Quebec Court of Appeal, on the basis that their extradition to the United States violated s. 6(1) of the Charter. The United States asked for and was granted leave to challenge the findings of the Quebec Court of Appeal in this Court. The following constitutional questions were set by Justice Lamer:

1. Does the surrender of a Canadian citizen to a foreign state constitute an infringement of his right to remain in Canada as set out in s. 6(1) of the Canadian Charter of Rights and Freedoms?

2. If the surrender of such citizen constitutes a prima facie infringement of his right to remain in Canada, does the surrender of respondent in the circumstances of this case constitute a reasonable limit under s. 1 of the Canadian Charter of Rights and Freedoms?

3. Section 6(1) of the Charter

Section 6(1) of the Charter provides:

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

In the Quebec Court of Appeal it was conceded by counsel for the United States that the extradition process as contemplated by the Extradition Act and the Extradition Treaty between Canada and the United States violated s. 6(1) of the Charter. However, on appeal to this Court, counsel for the United States argued that the rights enumerated in the Charter, even without reference to s. 1, were not absolute but were subject to internal qualifications and limits. Counsel therefore interpreted s. 6(1) narrowly as solely designed to deal with circumstances in which a Canadian citizen was threatened with exile, banishment or expulsion. Extradition of a citizen did not, therefore, violate s. 6(1).

This Court has, on several occasions, set forth the guidelines to be employed in construing Charter provisions. In R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, at p. 344, Dickson J., as he then was, stated:

In Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, this Court expressed the view that the proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.

In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court's decision in Law Society of Upper Canada v. Skapinker, 1984 3 (SCC), [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts.

Applying these guidelines, it is my view that s. 6(1) of the Charter was designed to protect a Canadian citizen's freedom of movement in and out of the country according to his own choice. He may come and go as he pleases. He may elect to remain. Although only Canadian citizens can take advantage of s. 6(1) the right protected is not that of Canadian citizenship. Rather, the right protected focuses on the liberty of a Canadian citizen to choose of his own volition whether he would like to enter, remain in or leave Canada. Support for this interpretation is found in the language of the other subsections of s. 6 and in the heading of s. 6 "Mobility Rights".

In my view, the language of s. 6(1) is clear and unambiguous. Had it been the intention that s. 6(1) address only a citizen's right not to be exiled or banished, the section would have been framed in more specific terms. Indeed, the more specific terminology of exile and expulsion are used in both the Canadian Bill of Rights, R.S.C. 1970, App. III, and the European Convention on Human Rights.

Canadian Bill of Rights

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

(a) authorize or effect the arbitrary detention, imprisonment or exile of any person;

European Convention on Human Rights

Protocol 4, Article 3, paragraph 1:

1. No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.

Accordingly, I conclude that the extradition of a Canadian citizen violates his right to remain in Canada as guaranteed by s. 6(1) of the Charter.

4. Section 1 of the Charter

Section 1 of the Charter provides:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The focus of the Charter is on the protection of the enumerated rights and freedoms from governmental intrusion. As Dickson C.J. stated in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, at p. 136:

The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.

This point was also made in Singh v. Minister of Employment and Immigration, 1985 65 (SCC), [1985] 1 S.C.R. 177, wherein I stated at p. 218:

It seems to me that it is important to bear in mind that the rights and freedoms set out in the Charter are fundamental to the political structure of Canada and are guaranteed by the Charter as part of the supreme law of our nation. I think that in determining whether a particular limitation is a reasonable limit prescribed by law which can be "demonstrably justified in a free and democratic society" it is important to remember that the courts are conducting this inquiry in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter.

Given this focus, governmental limits on protected rights and freedoms can only be legitimized in the clearest of cases. It is simply not enough to override a constitutionally protected right or freedom for the legislation to be designed to serve a particular state objective. Rather, the state objective must take cognizance of and be tailored to the rights and freedoms on which it impinges. It was with these considerations in mind that this Court in R. v. Oakes outlined the criteria which must be met before legislation infringing upon a guaranteed right or freedom can be saved by s. 1. It bears repeating (pp. 138-39):

To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom": R. v. Big M Drug Mart Ltd., supra, at p. 352. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra, at p. 352. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".

The Ontario Court of Appeal was the first appellate court in Canada to consider the application of s. 1 of the Charter to the law of extradition. In Re Federal Republic of Germany and Rauca (1983), 1983 1774 (ON CA), 4 C.C.C. (3d) 385, that court considered a situation in which the West German authorities had requested extradition of a Canadian citizen for crimes he had committed during World War II prior to his becoming a Canadian citizen in territory occupied by Germany. The Court of Appeal held, at p. 406, without the benefit of this Court's decision in R. v. Oakes:

It is not necessary to turn to lengthy dictionary definitions of the words "demonstrably justified". They are words of common understanding and usage and they place a significant burden on the proponents of the limiting legislation. When the rationale and purpose of the Extradition Act and the treaty under it are looked at (having in mind that crime should not go unpunished), Canada's obligations to the international community considered and the history of such legislation in free and democratic societies examined, in our view, the burden of establishing that the limit imposed by the Extradition Act and the treaty on s. 6(1) of the Charter is a reasonable one demonstrably justified in a free and democratic society has been discharged by the respondents.

The Ontario court in obiter dicta, at p. 405, speculated as to what the outcome of the case would have been if the accused could have been prosecuted in Canada for his crimes:

Counsel for the appellant suggested that there was a possibility that the appellant could be prosecuted in Canada for the crimes with which he had been charged. If there was this alternative, the argument was that extradition was not a reasonable limit on the appellant's right as a citizen to remain in Canada. This submission was not pressed strongly and, like the Chief Justice of the High Court, we are not persuaded that there is, at present, a right to prosecute the appellant for the recited crimes in Canada. Even if there were such a right to prosecute, in light of the described purpose and reason for and lengthy history of extradition, it would not turn a reasonable limit on the citizen's right to remain in this country into an unreasonable limit. [Emphasis added.]

A majority of this Court, also in obiter dicta, has given support to the conclusion in Re Federal Republic of Germany and Rauca that extradition of a Canadian citizen who has committed an offence in a foreign jurisdiction meets the criteria of s. 1 of the Charter. In Canada v. Schmidt, 1987 48 (SCC), [1987] 1 S.C.R. 500, La Forest J., for the majority, stated at p. 520:

In Rauca, supra, for example, the Ontario Court of Appeal recognized that extradition intruded on a citizen's right under s. 6 to remain in Canada, although it also found that the beneficial aspects of the procedure in preventing malefactors from evading justice, a procedure widely adopted all over the world, were sufficient to sustain it as a reasonable limit under s. 1 of the Charter. Section 6 was not raised in this case, though Schmidt is a Canadian citizen, no doubt because her counsel believed, as I do, that it was properly disposed of in the Rauca case.

It should be noted that in neither Rauca nor Schmidt was the Ontario Court of Appeal or this Court dealing with the extradition of a Canadian citizen for acts committed within Canada for which the accused could be prosecuted in Canada. This is before us for the first time. In both Rauca and Schmidt the acts were committed in the requesting state, the typical extradition context.

Since it was not necessary to my decision in Schmidt I did not express an opinion as to the soundness of the proposition stated in absolute form in Rauca that extradition was per se a reasonable limit justified under s. 1 because I was not sure that it should not be subject to qualification in some circumstances. In other words, it seemed to me unwise and unnecessary to state this as a bald and absolute proposition and preferable, while acknowledging that in general extradition is a reasonable limit, to deal with particular circumstances on a case by case basis. It was my view that there might well be circumstances in which extradition might not be a reasonable limit under s. 1. The present appeals illustrate the problem about which I was concerned. Even if extradition is a reasonable limit demonstrably justified in a free and democratic society where a Canadian citizen commits an offence within the territorial boundaries of a foreign state, and I think that it clearly is, that does not dispose of the present appeals. In these appeals we must take into account the fact that the accused are Canadian citizens, that their alleged wrongful conduct took place entirely within Canada, and that such conduct gives rise to offences for which the accused can be charged and prosecuted in Canada. It is in that factual context that the Oakes test must be applied.

I emphasize that we are dealing in these cases with a very narrow issue. We are not dealing with circumstances in which a Canadian citizen who has committed an offence in a foreign country seeks to resist extradition on the basis of his right under s. 6(1) of the Charter to remain in Canada. Such a claim would, in my opinion, fail. While extradition infringes the rights of Canadian citizens under s. 6(1), the law of extradition has been held to be and, in my view, is in those circumstances a reasonable limit on that right which can be justified in a free and democratic society. The crucial question before us in these cases is whether extradition is a reasonable limit on the Canadian citizen's constitutionally guaranteed right to remain in Canada where his wrongful conduct took place wholly within Canada and constitutes an offence for which he can be charged and prosecuted here. I believe that these facts are relevant to the balancing exercise to be undertaken under s. 1 of the Charter.

My colleague takes the position that the locus of the accused's wrongdoing is irrelevant under both s. 6(1) and s. 1 of the Charter. I must respectfully disagree. I believe that the locus of the wrongdoing is very relevant when extradition to a foreign country is sought to be justified as a reasonable limit on a Canadian citizen's right to remain in Canada. Indeed, the locus of the wrongdoing is frequently the key factor connecting the accused to the requesting state. A Canadian citizen who leaves Canada for another state must expect that he will be answerable to the justice system of that state in respect of his conduct there. There can be no doubt as to the real interest of a requesting state in bringing to justice Canadians who have committed crimes within its (the requesting state's) territory. The question is whether that interest weighs as heavily under s. 1 when the crime was committed by a Canadian within Canadian territory.

It is not necessary in order that the appellants in this case be brought to justice that they be extradited to the United States. They can be brought to justice right here. It is alleged, however, that it would be more convenient if they were prosecuted in the United States and that Canada will appear to be uncooperative if it refuses to extradite them. In my view, it would require far stronger reasons than those to justify the violation of a right expressly guaranteed to Canadian citizens in the Charter.

I may say that I view with some alarm my colleague's characterization of the proposed extradition of the respondents as a "peripheral" violation of s. 6(1). If one characterizes a complete denial of the citizen's right to remain in Canada under s. 6(1) as a "peripheral" violation, then, of course, one has already pre-judged the s. 1 issue. I would, however, respectfully suggest that such an approach represents a novel departure from the Court's traditional approach to the balancing process called for under s. 1 and one that could pose a very serious threat to the protection for the citizen which the Charter was intended to provide.

It was also strenuously argued before us that the decision whether or not to extradite an accused at the behest of a requesting state is a matter of ministerial discretion and that the decision whether an accused should be prosecuted in Canada or elsewhere is a matter of prosecutorial discretion. The underlying premise of this submission seems to be that the executive branch of government in exercising such discretionary powers is not bound by the Charter. Section 32(1) of the Charter seems to be a complete answer to this submission. I would refer also to the statement of Dickson J. in Operation Dismantle Inc. v. The Queen, 1985 74 (SCC), [1985] 1 S.C.R. 441, at p. 455:

I have no doubt that the executive branch of the Canadian government is duty bound to act in accordance with the dictates of the Charter.

The Charter is part of the constitution of Canada which is declared to be the supreme law of the country in s. 52(1) of the Constitution Act, 1982. It is insupportable to suggest that the Attorney General of Canada or any other official of government has a discretion whether or not to respect the rights guaranteed under it.

It would, moreover, be my view that countries with which Canada has extradition treaties might be expected to have confidence in the Canadian system of justice to deal responsibly with its own citizens committing crimes within its own borders. Conversely, Canada might be expected to repose a similar confidence in the justice systems of the countries with which it has undertaken treaty obligations. Mutual respect for each other's system in dealing with their own nationals committing crimes within their own territories would appear to make eminent good sense. This is not, after all, the primary focus of extradition and Canada would, in my view, have to have a very good reason for abdicating its public responsibility to deal with its own nationals committing crimes within its own territory. I say this quite apart from Canada's obligation to respect the constitutional rights of its citizens although the latter is, of course, the paramount issue raised in these appeals.

I do not view the right of Canadian citizens to be tried here (where this is possible) in preference to trial in a foreign jurisdiction as a trivial one. The system of justice in the United States, which happens to be the requesting state in this case, may be very similar to our own and the proceedings there may closely parallel the proceedings here. But this will not necessarily be so in the case of all requesting states. The right in some cases may be a very valuable one indeed.

I return then to the application of R. v. Oakes to the narrow issue in these cases. The first criterion identified by Dickson C.J. in that case was that the governmental objective in limiting the right be in response to a pressing and substantial concern. I agree with my colleague, La Forest J., that the control of trans-border crime is, indeed, of sufficient importance to warrant a legislative limit on a constitutionally protected right. States can no longer live in "splendid isolation". Modern technology allows for almost instantaneous world-wide communication and same-day world-wide travel and transportation. Criminals take advantage of this advanced technology, particularly in the area of drug trafficking, and effective means are accordingly required on an inter-state level to combat this problem. As La Forest J. points out in his reasons, extradition is an important and well-established tool for the suppression of trans-border crime. It therefore meets the first criterion set out in R. v. Oakes.

The first criterion in R. v. Oakes having been satisfied, the legislative limit must next pass the proportionality test. First, the scheme must be rationally connected to the objective. At the Quebec Court of Appeal in Re El Zein and The Queen (1986), 1986 4657 (QC CA), 29 C.C.C. (3d) 560, Jacques J.A. felt that no such rational connection existed. He stated at p. 567:

(TRANSLATION) According to the criteria of reasonableness laid down by the Supreme Court in the Oakes decision, this measure is not rationally connected to the objective pursued, namely, the suppression of transborder crime -- the facts took place in Canada; these facts constitute a crime in Canada as well as in the United States. Those are the two premises. Their rational conclusion is not extradition and a trial in the United States, but rather a trial in Canada, because it is Canada which has the duty to preserve public order and to repress crime within its borders. The connection with the United States is only incidental and not necessary.

I share the concerns of Jacques J.A. but I believe that they are better dealt with under the second tier of the proportionality test. It is generally accepted that more than one state can have an interest in prosecuting the acts of a particular individual. In such cases both states have jurisdiction to try the accused for the offence. Canada obviously has a vital interest in controlling criminal activity within its own borders. At the same time, on the facts of these appeals, the harm resulting from the commission of the offences would have been more acutely and immediately felt within the United States. I would conclude, therefore, that the means employed, i.e., extradition are rationally connected to the objective of controlling trans-border crime.

In my view, however, the scheme of extradition, on the particular facts of these appeals, cannot pass the second tier of the Oakes proportionality test which requires that the means, even if rationally connected to the objective, impair "as little as possible" the right in question. The objective of controlling trans-border crime could have been achieved by prosecuting Cotroni and El Zein in Canada under s. 423 of the Criminal Code and s. 5 of the Narcotic Control Act. The prosecution of Cotroni and El Zein in Canada would have avoided a contravention of s. 6 of the Charter entirely.

Counsel for the United States urged that there were legitimate reasons for the prosecutions to take place in the United States as opposed to Canada. The crimes were uncovered by United States authorities, the investigation and legal proceedings were initiated there, most of the witnesses and evidence is there and the impact of the crimes would primarily have been felt there. We were referred to United States of America v. Swystun (1987), 1987 115 (MB QB), 50 Man. R. (2d) 129, which highlighted several factors to be taken into account in determining the appropriate jurisdiction for a prosecution. I do not for a moment doubt that the United States has an interest in prosecuting crimes whose impact is felt there. Nor do I question that the United States may be the more convenient forum for the prosecution of these particular offences. However, in my opinion, these considerations are more apposite to the question of whether the legislative means are rationally connected to the objective than to the question of whether the right is impaired as little as possible. As I mentioned earlier, the focus of the Charter is the protection of rights and freedoms fundamental to a free and democratic society. Limits on those rights must be confined to those which are reasonable and justified in that kind of society and should not be based merely on considerations of administrative convenience. As I stated in Singh v. Minister of Employment and Immigration, supra, at pp. 218-19, in the context of whether the procedures for the adjudication of refugee status claims set out in the Immigration Act, 1976 violated the Charter:

The issue in the present case is not simply whether the procedures set out in the Immigration Act, 1976 for the adjudication of refugee claims are reasonable; it is whether it is reasonable to deprive the appellants of the right to life, liberty and security of the person by adopting a system for the adjudication of refugee status claims which does not accord with the principles of fundamental justice.

Seen in this light I have considerable doubt that the type of utilitarian consideration brought forward by Mr. Bowie can constitute a justification for a limitation on the rights set out in the Charter. Certainly the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so. No doubt considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice but such an argument, in my view, misses the point of the exercise under s. 1. The principles of natural justice and procedural fairness which have long been espoused by our courts, and the constitutional entrenchment of the principles of fundamental justice in s. 7, implicitly recognize that a balance of administrative convenience does not override the need to adhere to these principles. Whatever standard of review eventually emerges under s. 1, it seems to me that the basis of the justification for the limitation of rights under s. 7 must be more compelling than any advanced in these appeals.

Although these comments were made with reference to a violation of s. 7 of the Charter and not s. 6, I believe they reflect a proper approach to the interpretation and application of s. 1.

In coming to this conclusion I am not unmindful of the comments of La Forest J. that a flexible approach should be taken in some cases to the proportionality test in R. v. Oakes. However, this does not seem to me to be one of those cases. It is one thing to temper scrutiny of legislation and relax the general approach to "fine tuning" when dealing with alternate forms of business regulation (see R. v. Edwards Books and Art Ltd., 1986 12 (SCC), [1986] 2 S.C.R. 713, per Dickson C.J., at p. 772) and another thing entirely to abandon careful scrutiny of a legislative scheme which directly abridges a guaranteed right particularly in relation to an aspect of the criminal law.

Furthermore, in my opinion, the comity of nations fostered by extradition is not adversely affected by the result I have reached. United States law enforcement agencies will continue to monitor the United States borders to prevent the importation of illegal drugs and these agencies will continue to cooperate with Canadian law enforcement agencies. Information will be shared and support will be given not only between law enforcement agencies but also between prosecutors. I would respectfully adopt the words of Jacques J.A. in Re El Zein and The Queen, supra, at pp. 568-69:

(TRANSLATION) Mere courtesy, or co-operation in combating crime, among various countries, does not justify this extradition because the end sought through this co-operation can be attained while still respecting the right of a citizen to remain in his country.

I conclude, therefore, that on the particular facts of these appeals extradition cannot be justified under s. 1 of the Charter.

5. Disposition

I would dismiss both appeals on the ground that extradition violates s. 6(1) of the Charter and is not saved by s. 1 in circumstances where the accused is a Canadian citizen, where his conduct took place wholly within Canada, and where his conduct constitutes an offence for which he can be tried and prosecuted both in Canada and in the requesting state.

I would answer the constitutional questions in each of these appeals as follows:

Question 1

Does the surrender of a Canadian citizen to a foreign state constitute an infringement of his right to remain in Canada as set out in s. 6(1) of the Canadian Charter of Rights and Freedoms?

Answer

Yes.

Question 2

If the surrender of such citizen constitutes a prima facie infringement of his right to remain in Canada, does the surrender of respondent in the circumstances of this case constitute a reasonable limit under s. 1 of the Canadian Charter of Rights and Freedoms?

Answer

No.

Sopinka J.

The following are the reasons delivered by

SOPINKA J. (dissenting) -- I concur in the conclusion reached by my colleague Justice Wilson and her reasons. Inasmuch, however, as I have concerns about the implications of the majority decision for the rights of a citizen to be tried in this country which are not limited to those cases in which all relevant acts have been committed here, I have decided to express these concerns separately.

Although the principal argument in this case was that extradition in the circumstances herein was not a reasonable limit, the respondent El Zein raised the general issue that extradition of a citizen is not a reasonable limit with respect to the right to remain in Canada which is guaranteed under s. 6(1) of the Canadian Charter of Rights and Freedoms. As a result, the reasons of my colleague Justice La Forest address the general issue and reach the conclusion that extradition of a citizen is itself a reasonable limit on the rights conferred by s. 6(1) of the Charter, even when under the laws of Canada the citizen could be prosecuted here.

In balancing the seriousness of the Charter breach against the object to be achieved, my colleague classifies the infringement to s. 6(1) resulting from extradition as peripheral. I cannot agree with this characterization when viewed against the spectrum of nations to which a citizen can be extradited. Our citizens may be extradited not only to the United States but to countries where systems are radically different and whose laws provide none of the traditional protections for persons charged. If, for example, a Canadian citizen who is presumed to be innocent under our laws is extradited to a country that does not recognize the presumption of innocence, requires the accused to testify, does not permit bail, has no independent bar and imposes the death penalty for a number of different offences, I would consider the consequences of the breach of the citizen's right to remain in Canada as more than peripheral. Indeed, it is tantamount to banishment.

And yet, such limits as exist contained in any enforceable rules of law designed for the protection of the citizen make no distinction between the petty drug trafficker who is extradited to the United States and a citizen who is extradited for a capital offence in the circumstances described above.

Counsel for the respondent, El Zein, submitted that in this situation a Charter breach cannot be justified on the basis of prosecutorial discretion for which there are no criteria. In dealing with this submission, my colleague refers to the decision of Hanssen J. in United States of America v. Swystun (1987), 1987 115 (MB QB), 50 Man. R. (2d) 129, and the alleged practice that obtains with respect to the decision whether to prosecute in Canada. The practice to which Hanssen J. refers was presumably based on evidence adduced before him. His statement appears to be a finding of fact. That evidence does not appear to have been presented in this case but, in any event, accepting that this is the practice, it is just that -- a practice. The reasons of Hanssen J. do not disclose if it is recorded in any writing. The passage from the reasons of Hanssen J., paraphrased in my colleague's reasons, appears at p. 134:

In practice, both the decision as to whether or not to prosecute in Canada and whether or not to extradite to the requesting state are made following consultations between the appropriate authorities in Canada and the appropriate authorities in the requesting jurisdiction. The factors which will usually affect such a decision are those which I mentioned earlier.

Departure from this practice would not be reviewable unless, as pointed out by my colleague, "it was established that a discretion was exercised for improper or arbitrary motives". It is, therefore, difficult to accept that a breach of a Charter right can be justified by offering the citizen the protection of this practice. In my opinion, these are not "limits prescribed by law". Nor are they carefully crafted to lessen the impact of a breach of s. 6(1).

The prosecutorial discretion referred to in the Swystun case, supra, is not found in the Extradition Act, R.S.C. 1970, c. E-21, but in the general discretion of the Crown to decide, as in any case, whether to prosecute. Indeed, even a decision to prosecute in Canada will not protect the citizen against extradition unless the treaty confers a discretion in Canada not to extradite its own citizens. Such a provision exists in a number of treaties. It is not, however, a discretion conferred on a prosecutor but is a matter of political discretion. Accordingly, whether a decision to prosecute will avail will depend on the general policy of the Canadian government. This policy is not expressed in any instrument having the force of law.

In my opinion, avoidance of a Charter violation cannot be delegated to a prosecutor whose conduct is not circumscribed by guidelines which are enforceable in a court of law. I agree with the following statement of Lamer J. in a different context in R. v. Smith (Edward Dewey), 1987 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1078:

In my view the section cannot be salvaged by relying on the discretion of the prosecution not to apply the law in those cases where, in the opinion of the prosecution, its application would be a violation of the Charter. To do so would be to disregard totally s. 52 of the Constitution Act, 1982 which provides that any law which is inconsistent with the Constitution is of no force or effect to the extent of the inconsistency and the courts are duty bound to make that pronouncement, not to delegate the avoidance of a violation to the prosecution or to anyone else for that matter.

It might be said that some protection is afforded in the extradition treaties in that the Canadian government would have considered the matter of the political and legal systems of the requesting state at the time of negotiation. Unfortunately, many of these treaties pre-date 1926 and some pre-date 1900. Furthermore, they were not negotiated by Canada but by Great Britain. The political nature of the country and certainly its legal system may have drastically changed in the interim.

In Canada v. Schmidt, 1987 48 (SCC), [1987] 1 S.C.R. 500, my colleague, La Forest J., acknowledged that in some circumstances the manner in which the requesting state proposed to deal with a fugitive might constitute a breach of the rules of fundamental justice. If the judgment in this case justifies the extradition of a citizen in general as a reasonable limit, I have difficulty in appreciating how it could in any case constitute a breach of fundamental justice. Accordingly, even the door that was left open in Canada v. Schmidt, supra, may now have been closed. I therefore conclude that extradition of a citizen who can be tried in Canada, in the present state of the law of extradition, is not a reasonable limit and that extradition in this case would constitute a breach of s. 6(1) which has not been justified under s. 1 of the Charter.

Appeals allowed, WILSON and SOPINKA JJ. dissenting; both constitutional questions should be answered in the affirmative.

Solicitor for the appellant: Frank Iacobucci, Ottawa.

Solicitors for the respondent Frank Santo Cotroni: Sidney H. Leithman and Francis Brabant, Montréal.

Solicitors for the respondent Samir El Zein: Desrosiers, Provost & Taillefer, Montréal.