United States of America v. Shulman, [2001] 1 S.C.R. 616, 2001 SCC 21

Howard Shulman Appellant

v.

United States of America Respondent

Indexed as: United States of America v. Shulman

Neutral citation: 2001 SCC 21.

File No.: 26912.

2000: March 24; 2001: April 5.

Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour JJ.

on appeal from the court of appeal for ontario

Constitutional law -- Charter of Rights -- Mobility rights -- Right to remain in Canada – Extradition – Whether mobility rights engaged at committal stage of extradition process -- Canadian Charter of Rights and Freedoms, s. 6(1).

Constitutional law -- Charter of Rights -- Fundamental justice -- Extradition -- Whether considerations relating to fundamental justice engaged at committal stage of extradition process -- Canadian Charter of Rights and Freedoms, s. 7.

Extradition -- Extradition process -- Scope of Charter jurisdiction of extradition judge at committal stage -- Whether mobility rights and considerations of fundamental justice engaged at committal stage of extradition process -- Whether extradition judge competent to grant Charter remedies -- Canadian Charter of Rights and Freedoms, ss. 6, 7, 24 -- Extradition Act, R.S.C. 1985, c. E-23, s. 9(3).

Extradition -- Extradition process -- Remedies -- Charter jurisdiction -- Abuse of process -- Role of appellate courts.

Extradition -- Evidence -- Fresh evidence -- Fugitive seeking to adduce fresh evidence in Court of Appeal -- Evidence including threats uttered by U.S. prosecutor -- Whether Court of Appeal erred in dismissing fugitive’s motion to adduce fresh evidence -- Whether fresh evidence revealed abuse of process -- If so, whether stay of proceedings should be granted.

Extradition -- Evidence -- Admissibility -- Affidavit evidence referring to fugitive’s allegedly unlawful activities provided by alleged co-conspirators -- Alleged co-conspirators awaiting sentence when affidavit material prepared and sworn -- Fugitive claiming that co-conspirators’ evidence infringed principles of fundamental justice and constituted abuse of process -- Whether extradition judge and Court of Appeal correct in refusing to exclude affidavit evidence -- Canadian Charter of Rights and Freedoms, ss. 7, 24.

Along with several other individuals, the appellant, who is a Canadian citizen, allegedly defrauded American residents through a telemarketing scheme executed from Canada. The U.S. requested the appellant’s extradition on charges of fraud and conspiracy to commit fraud. The affidavit evidence referring directly to the appellant’s allegedly unlawful activities was provided by alleged co-conspirators who had pleaded guilty in the U.S. but had not been sentenced at the time the affidavits were sworn. At his extradition hearing, the appellant claimed that his rights under ss. 6 and 7 of the Canadian Charter of Rights and Freedoms were violated by the extradition proceedings and sought additional disclosure. His claim was denied and he was committed for surrender to the U.S. On appeal against committal, the appellant sought to adduce fresh evidence consisting of threatening statements made by the American judge and prosecuting attorney with carriage of the matter in the U.S. First, as he was sentencing a co-conspirator in the scheme, the American judge assigned to his trial commented that those fugitives who did not cooperate would get the “absolute maximum jail sentence”. Second, the prosecuting attorney hinted during a television interview that uncooperative fugitives would be subject to homosexual rape in prison. The Court of Appeal dismissed both the motion to adduce fresh evidence and the appeal against committal.

Held: The appeal should be allowed.

The Charter jurisdiction of the committal court must be assessed in light of that court’s limited function under the Extradition Act. The extradition judge is competent to grant Charter remedies, including a stay of proceedings, on the basis of a Charter violation but only insofar as the Charter breach pertains directly to the circumscribed issues relevant at the committal hearing. The committal hearing aims to determine whether the foreign authority has put forward sufficient admissible evidence to make out a prima facie case against the fugitive.

A fugitive’s right to remain in Canada is not engaged at the committal stage in and of itself and arises only with the Minister’s decision to surrender and upon judicial review of that decision. There was no obligation, in this case, to admit at the committal hearing evidence that may subsequently be relevant to s. 6 issues. The appellant’s s. 6 rights were not infringed.

Conversely, s. 7 of the Charter permeates the entire extradition process and is engaged, although for different purposes, at both the committal and the surrender stages of the process. Both s. 7 of the Charter and the common law doctrine of abuse of process require that the judicial phase of extradition proceedings be conducted in accordance with the procedural fairness which is part of the principles of fundamental justice. Here, the appellant received a fair extradition hearing. He was not subjected to undue pressure by American officials before or during his committal hearing because he was not aware of the American judge’s statement and the prosecuting attorney’s threat had not yet been uttered. As the comments could not in any way have had any impact on the fairness of the committal hearing, and thus the appellant’s s. 7 rights were not infringed at that stage, the extradition judge was correct in denying the appellant’s application for a stay of proceedings.

As a result of the 1992 amendments to the Extradition Act, the role of the provincial court of appeal has been significantly expanded, particularly with regard to alleged violations of constitutional rights. In the case of Charter issues arising at the ministerial stage, such as s. 6 issues, the court of appeal is now the original judicial forum in which they can be raised, leading the appellate courts to receive evidence relevant to the Charter challenges that neither the extradition judge nor the Minister had any obligation to receive. In addition, like all courts, the courts of appeal have an implied jurisdiction to control their own process, including through the doctrine of abuse of process.

The Court of Appeal erred in declining to receive the fresh evidence. The prosecuting attorney’s televised statement was a shocking use of threats by an American official attempting to induce Canadian citizens to renounce the exercise of their lawful access to courts in Canada in order to resist a U.S. extradition request. The statement is properly attributed to the Requesting State. The fresh evidence was tendered in the Court of Appeal for the purpose of invoking the jurisdiction of that court to control its own process, as a basis for requesting an original remedy in the court of appeal. In these circumstances, the evidence must be relevant to the remedy sought before the Court of Appeal. It must be credible and sufficient, if uncontradicted, to justify the court making the order. Here, the evidence tendered by the appellant met the criteria and the Court of Appeal should have received it and should have considered whether that evidence revealed an abuse of process which possibly tainted, if not the committal hearing itself, the legitimate appeal from it. Standing alone, the statements of the prosecutor constitute a sufficient basis upon which to stay the proceedings.

The appellant’s arguments on the disclosure issues have no merit. As for the use of evidence provided by alleged co-conspirators, the extradition judge and the Court of Appeal were correct in refusing to exclude this evidence. The fact that the co-conspirators were awaiting sentence at the time of their evidence goes to weight, not admissibility. Weighing the evidence or assessing credibility is not part of the extradition judge’s jurisdiction and it is not for that judge to assume responsibility over the actions of foreign officials in preparing evidence.

Cases Cited

Followed: United States of America v. Kwok, [2001] 1 S.C.R. 532, 2001 SCC 18, aff’g (1998), 1998 CanLII 6409 (ON CA), 127 C.C.C. (3d) 353; United States of America v. Cobb, [2001] 1 S.C.R. 587, 2001 SCC 19; applied: United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067; Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759; R. v. McAnespie, 1993 CanLII 50 (SCC), [1993] 4 S.C.R. 501; R. v. Lévesque, [2000] 2 S.C.R. 487, 2000 SCC 47; Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536; referred to: United States of America v. Tsioubris, [2001] 1 S.C.R. 613, 2001 SCC 20; Shulman v. Canada (Minister of Justice) (2000), 2000 CanLII 2611 (ON CA), 146 C.C.C. (3d) 182; United States of America v. Houslander (1993), 1993 CanLII 8617 (ON SC), 13 O.R. (3d) 44; Pacificador v. Philippines (Republic of) (1993), 1993 CanLII 3381 (ON CA), 83 C.C.C. (3d) 210; Ontario (Attorney General) v. Paul Magder Furs Ltd. (1991), 1991 CanLII 7053 (ON CA), 6 O.R. (3d) 188, leave to appeal refused, [1992] 2 S.C.R. ix; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345; R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579; R. v. W. (W.) (1995), 1995 CanLII 3505 (ON CA), 100 C.C.C. (3d) 225; R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128; R. v. Cook, 1998 CanLII 802 (SCC), [1998] 2 S.C.R. 597; United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462; R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562; R. v. Pipe (1966), 51 Cr. App. R. 17; R. v. Williams (1974), 1974 CanLII 1576 (CMAC), 21 C.C.C. (2d) 1, leave to appeal refused, [1974] S.C.R. xii; R. v. Donaldson, [1988] O.J. No. 1232 (QL); United States of America v. Cheung, [1998] Q.J. No. 3393 (QL); R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 6, 7, 24(2).

Criminal Code, R.S.C. 1985, c. C-46, ss. 465(1)(c) [am. c. 27 (1st Supp.), s. 61], 683(1)(d).

Extradition Act, R.S.C., 1985, c. E-23, ss. 9(3) [ad. 1992, c. 13, s. 2], 19.2 [ad. idem, s. 3], 19.3 [idem],19.4(2) [idem], 19.9 [idem], 25.1 [idem, s. 5], 25.2 [idem].

Extradition Act, S.C. 1999, c. 18, ss. 25, 41, 49, 50, 51(2), 56, 57, 84.

APPEAL from a judgment of the Ontario Court of Appeal (1998), 1998 CanLII 17664 (ON CA), 128 C.C.C. (3d) 475, [1998] O.J. No. 3340 (QL), dismissing the appellant’s appeal from a committal order for surrender rendered by the Ontario Court (General Division), [1995] O.J. No. 4497 (QL). Appeal allowed.

Chris N. Buhr and Shayne G. Kert, for the appellant.

David Littlefield and Kevin Wilson, for the respondent.

The judgment of the Court was delivered by

Arbour J. –

I. Introduction

1 This appeal was heard together with United States of America v. Kwok, [2001] 1 S.C.R. 532, 2001 SCC 18, United States of America v. Cobb, [2001] 1 S.C.R. 587, 2001 SCC 19, and United States of America v. Tsioubris, [2001] 1 S.C.R. 613, 2001 SCC 20, all released concurrently. The appellant is a Canadian citizen resisting extradition to the United States of America on a charge of conspiracy to commit fraud. Several issues raised here were also raised in the other appeals, such as whether ss. 6 and 7 of the Canadian Charter of Rights and Freedoms are engaged at the committal level and what disclosure requirements apply at that level. The specific issues raised by this particular appeal are whether the Court of Appeal for Ontario ought to have admitted fresh evidence on appeal from the committal decision and whether evidence provided by alleged co-conspirators ought to have been excluded from the proceedings.

2 For the reasons below, as well as the reasons set out in Kwok, released concurrently, I find that s. 6 of the Charter was not infringed under the circumstances of this case. Similarly, the appellant had a fair extradition hearing. However, as established in Cobb, also released concurrently, both s. 7 of the Charter and the common law doctrine of abuse of process require that the judicial phase of the extradition process be conducted in accordance with the procedural fairness which is part of the principles of fundamental justice. In light of this, I am of the opinion that the Court of Appeal should have received the fresh evidence tendered by the appellant and, upon review of that evidence, should have entered a stay of proceedings.

II. Factual Background

3 I have already set out some of the background facts of this appeal in the companion case of Cobb. The appellant, Howard Shulman, was one of several individuals accused of mail and wire fraud in a Pennsylvania indictment of July 1994. His extradition in connection with those charges was sought in the same Diplomatic Note which sought the extradition of Cobb, Grossman and Tsioubris. However, the extradition proceedings against Shulman moved faster than the proceedings against Cobb, Grossman and Tsioubris, giving rise to different issues in the present appeal.

4 Much of the material obtained during the RCMP investigation into the circumstances at the basis of the American charges against the appellant and others was provided to the American authorities and some of it was relied upon by the United States in the extradition proceedings against the appellant. All the affidavit evidence referring directly to Shulman’s allegedly unlawful activities was provided by alleged co-conspirators who had pleaded guilty in the United States to some or all charges related to the same scheme but had not been sentenced when their affidavit material was prepared and sworn.

5 At his extradition hearing held on September 13, 14, 15 and 18, 1995, the appellant sought additional disclosure on two matters: (i) the status of the American proceedings of the alleged co-conspirators, including whatever “plea agreements” had been entered into; and (ii) all discussions between Canadian police and American prosecutors concerning the decision by which no proceedings were initiated against the appellant in Canada, in order to allow an American prosecution to proceed. The appellant argued that this disclosure was relevant to his claim that his right to remain in Canada, as guaranteed by s. 6 of the Charter, was violated by the extradition proceedings because prosecution in Canada was a viable option. He further submitted that the wholesale use of alleged co-conspirators’ evidence infringed fundamental principles of justice and constituted an abuse of the Canadian court’s process. Specifically, he argued that these affidavits were tainted by the fact that they were sworn while the alleged co-conspirators were awaiting sentence. In addition to the application for disclosure, the appellant also made an application to stay the extradition proceedings or, alternatively, to exclude the affidavit evidence under s. 24(2) of the Charter. The appellant’s requests were unsuccessful and the extradition judge committed him for surrender to the United States.

6 The appellant filed an appeal against the committal decision and the Minister of Justice deferred making a decision on surrender until the disposition of that appeal. Prior to the hearing of Shulman’s appeal against committal, the committal hearing involving Cobb, Grossman and Tsioubris proceeded. On October 28, 1997, the extradition judge entered a stay of the proceedings against them as a result of statements made by the American judge and by the prosecutor who had carriage of the case in the United States. On May 22, 1995, prior to the appellant’s committal hearing, the assigned American trial judge, Judge William Caldwell, while sentencing one of the co-accused in the scheme, stated:

I want you to believe me that as to those people who don’t come in and cooperate and if we get them extradited and they’re found guilty, as far as I’m concerned they’re going to get the absolute maximum jail sentence that the law permits me to give.

7 As for the comments made by the prosecutor, Assistant U.S. Attorney in the Middle District of Pennsylvania, and principal affiant of the Requesting State, Gordon A. D. Zubrod stated during an interview with Linden MacIntyre for The Fifth Estate, a Canadian television program, the specific broadcast of which (“The Maple Leaf Swindle”) aired on the CBC network on September 30, 1997:

MacIntyre: . . . For those accused who choose to fight extradition, Gordon Zubrod warns they’re only making matters worse for themselves in the long run.

Zubrod: I have told some of these individuals, “Look, you can come down and you can put this behind you by serving your time in prison and making restitution to the victims, or you can wind up serving a great deal longer sentence under much more stringent conditions”, and describe those conditions to them.

MacIntyre: How would you describe those conditions?

Zubrod: You’re going to be the boyfriend of a very bad man if you wait out your extradition.

MacIntyre: And does that have much of an impact on these people?

Zubrod: Well, out of the 89 people we’ve indicted so far, approximately 55 of them have said, “We give up”.

8 On appeal from his committal, the appellant sought to adduce fresh evidence, consisting of the comments made in public by the U.S. judge and by the prosecutor, together with social science evidence describing the extent of the power and discretion exercised by an American federal prosecutor, resulting from the American federal Sentencing Guidelines. This evidence had formed the basis of Hawkins J.’s decision to stay the proceedings against Cobb, Grossman and Tsioubris. The Court of Appeal dismissed both the motion to adduce fresh evidence and the appeal against committal. Two days before this Court granted leave to appeal that decision, the Minister issued the surrender order. An application for judicial review of that order was dismissed by the Court of Appeal for Ontario on June 1, 2000 ((2000), 2000 CanLII 2611 (ON CA), 146 C.C.C. (3d) 182). The only appeal before this Court is the appeal against committal.

III. Relevant Statutory Provisions

9 Canadian Charter of Rights and Freedoms

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

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Extradition Act, R.S.C. 1985, c. E-23, as amended by S.C. 1992, c. 13

9. . . .

(3) For the purposes of the Constitution Act, 1982, a judge who is a superior court judge or a county court judge has, with respect to the functions that that judge is required to perform in applying this Act, the same competence that that judge possesses by virtue of being a superior court judge or a county court judge.

Extradition Act, S.C. 1999, c. 18

25. For the purposes of the Constitution Act, 1982, a judge has, with respect to the functions that the judge is required to perform in applying this Act, the same competence that that judge possesses by virtue of being a superior court judge.

26. The Extradition Act repealed by section 129 of this Act applies to a matter respecting the extradition of a person as though it had not been repealed, if the hearing in respect of the extradition had already begun on the day on which this Act comes into force [June 17, 1999].

IV. Proceedings and Judgments Below

A. Ontario Court (General Division), [1995] O.J. No. 4497 (QL)

10 On September 13, 1995, Lyon J. denied all of the appellant’s applications for disclosure, the application to stay the proceedings and the application to exclude the affidavit evidence under s. 24(2) of the Charter.

11 Lyon J. ruled that “material need not be disclosed unless it is relevant ... to matters in issue at the extradition hearing” (para. 17) conducted by the court. The extradition judge held that the status of the American proceedings against the alleged co-conspirators was not relevant to any issue before him. The requested information could affect the weight to be given to the affidavits but would not affect their admissibility before the court. It is not the function of the extradition judge to weigh the evidence or to assess credibility: United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067. Lyon J. was of the view that the absence of a right of cross-examination on these affidavits reinforced his conclusion.

12 Lyon J. also denied disclosure of discussions between Canadian police and American prosecutors as a result of which the Canadian authorities decided not to proceed in Canada but rather to let matters move forward in the United States. Lyon J. ruled that the disclosure issue was premature and therefore irrelevant, since there had not yet been a decision by the Minister to surrender the fugitive. He relied on United States of America v. Houslander (1993), 1993 CanLII 8617 (ON SC), 13 O.R. (3d) 44 (Gen. Div.), where Blair J. said, at p. 51, that the extradition hearing is designed to provide a summary and expeditious determination as to whether there is sufficient evidence to commit the fugitive for surrender, and that it does not permit building a case for another purpose. Lyon J. did not see that any possible breach of s. 6 rights could have occurred regardless of the outcome of the appellant’s application for disclosure.

13 Lyon J. also rejected the appellant’s disclosure request based on the argument that the Canadian authorities were improperly motivated to prefer extradition by reason of the more severe sentences in the United States. He explained, at para. 42:

While improper motive is a ground for judicial review for a prosecutorial discretion, there has to be an air of reality to these allegations before the court will act on it. There is, in my view, no air of reality to the [appellant’s] position such that an alleged abuse of the extradition court’s process could be a basis for an order of disclosure.

14 On September 18, 1995, Lyon J. committed the appellant for surrender. He was satisfied that there was sufficient prima facie evidence to establish that Shulman had attempted to carry out the fraudulent plan to sell gemstones such that he could be committed for trial for such an offence in Canada, on a charge of conspiracy to commit the indictable offence of false pretences and fraud, contrary to s. 465(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46, a crime punishable by more than one year. However, no prima facie case having been made out, Lyon J. discharged the appellant of the 51 substantive counts of specific offences consisting of acts of mail and wire transmissions or communications for the purpose of executing the objectives of alleged conspiracy.

B. Court of Appeal for Ontario (1998), [1998 CanLII 17664 (ON CA)](https://www.canlii.org/en/on/onca/doc/1998/1998canlii17664/1998canlii17664.html), 128 C.C.C. (3d) 475

15 As indicated earlier, the appellant moved to introduce fresh evidence on appeal, on the basis of information that had come to light in the October 1997 committal hearing of Cobb, Grossman and Tsioubris.

16 On August 19, 1998, the Court of Appeal for Ontario dismissed the appellant’s motion to adduce fresh evidence, holding that the evidence related to matters which were for the Minister of Justice to consider, whose decision could then be subject to judicial review.

17 The court also upheld the rulings of Lyon J. on the various issues of additional disclosure, given the limited purpose of the extradition hearing and based on the court’s earlier decisions in United States of America v. Kwok (1998), 1998 CanLII 6409 (ON CA), 127 C.C.C. (3d) 353, and Pacificador v. Philippines (Republic of) (1993), 1993 CanLII 3381 (ON CA), 83 C.C.C. (3d) 210. Mobility rights were not engaged at the committal stage of the extradition process. Moreover, the court held that even if the extradition judge had been competent to grant the remedies requested, the fact that the affiants were convicted but not sentenced did not provide a basis for either staying the proceedings or excluding their evidence.

18 The court dismissed the respondent’s cross-appeal, upholding Lyon J.’s decision to discharge Shulman on the 51 substantive counts of mail and wire fraud.

V. Issues

19 This appeal raises several issues identical to those of the companion cases Kwok, supra, and Cobb, supra. As in those cases, the central issue here is whether ss. 6 and 7 of the Charter are engaged at the committal stage of extradition proceedings. This, in turn, raises the question of whether the Court of Appeal ought to have received the fresh evidence. Finally, the appellant raises again in this Court the remaining disclosure issues and the use at the committal hearing of the affidavits from alleged co-conspirators.

VI. Analysis

A. [Sections 6](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and[ 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) at the Committal Hearing

20 The appellant argues that s. 9(3) of the Extradition Act gives an extradition court complete jurisdiction in connexion with Charter matters as they relate to the functions that the court performs in an extradition hearing. The respondent takes the position that s. 9(3) has not expanded the role of the Charter at that phase of the proceedings and that the extradition judge has the same limited Charter jurisdiction previously exercised by the habeas corpus judge with respect to Charter issues. Throughout these reasons, I shall refer to the Extradition Act, R.S.C. 1985, c. E-23, as amended by An Act to amend the Extradition Act, S.C. 1992, c. 13.

21 I have concluded in Kwok, that the Charter jurisdiction of the committal court must be assessed in light of the court’s limited function under the Act. This function only extends to the determination of whether the foreign authority has put forward sufficient admissible evidence to make out a prima facie case against the fugitive. Similarly, in Cobb, I concluded that the extradition judge was competent to grant Charter remedies, including a stay of proceedings, on the basis of a Charter violation but only insofar as the Charter breach pertains directly to the circumscribed issues relevant at the initial phase of the extradition process, the committal stage.

22 I held in Kwok that a fugitive’s right to remain in Canada, guaranteed by s. 6 of the Charter, is not engaged at the committal stage in and of itself and arises only at the executive phase of the process, in the Minister’s decision to surrender, and upon judicial review of that decision. In the case at bar, the Minister had decided to defer the surrender decision until after the disposition of the appeal against committal. Although I recognized in Kwok a limited residual discretion on the part of the extradition judge to receive evidence relating to those issues when convenient and expedient to do so, the extradition judge here did not err in refusing to admit evidence that may subsequently be relevant to s. 6(1) issues. The appellant’s s. 6 rights were not infringed.

23 The analytical context of s. 7 differs from that of s. 6. I held in Cobb, that s. 7 of the Charter permeates the entire extradition process and is engaged, although for different purposes, at both the committal and the surrender stages of the process. I further found in that case that the statements made by the American trial judge and by the prosecuting attorney could reasonably be interpreted, and indeed were interpreted by the extradition judge, as threats to discourage the fugitives from fully resorting to the Canadian extradition process. Although the committal hearing is not a trial, it must conform with the principles of procedural fairness that govern all judicial proceedings in this country. In light of the threats and inducements imposed upon them, I found that it was open to the extradition judge to conclude as he did that Cobb and Grossman would not have a fair extradition hearing, and, consequently, to stay those proceedings. I reached the same conclusion in Tsioubris, released concurrently.

24 The appellant’s extradition hearing was held long before that of Cobb, Grossman and Tsioubris. At his hearing, he did not raise the comments made by Judge Caldwell and the broadcast of prosecutor Zubrod’s comments had not yet been aired. Rather, Shulman contested his extradition, as he was entitled to, on grounds that were ultimately unsuccessful. He later raised the impugned statements in a motion to adduce fresh evidence before the Court of Appeal, in the course of his appeal against committal. It is therefore clear that the appellant was not subjected to undue pressure by U.S. officials before or during his committal hearing as were the other fugitives in the companion cases. For one, the U.S. prosecutor had not yet uttered the threats that would taint the other proceedings. As for the comments by Judge Caldwell, there is no evidence to suggest that the appellant was aware of them, nor was the extradition judge made aware of these comments. Consequently, the comments could not in any way have had any impact on the fairness of the committal hearing.

25 Accordingly, I conclude that the appellant received a fair committal hearing and that the extradition judge was correct in denying his application for a stay of proceedings. While it is proper to raise these issues before the committal judge when they affect the committal hearing, it was not the case here.

26 I now turn to examine the role of appellate courts in Canadian extradition proceedings with a view to discussing the doctrine of abuse of process and the admissibility of the fresh evidence tendered before the Court of Appeal in that context.

B. The Role of Appellate Courts in Extradition Proceedings and Abuse of Process

27 The judicial phase of the Canadian extradition process comprises a right of appeal to a provincial court of appeal and, with leave, to this Court. This may be combined with a judicial review of the Minister’s decision to surrender or, as here, the Minister may postpone his or her decision pending appellate review of the committal order. This appeal process is provided for in ss. 19.2, 19.3, 19.4(2), 19.9, 25.1 and 25.2 of the Extradition Act (ss. 41, 49, 50, 51(2), 56 and 57 of the current version of the Act) and is an integral part of the system by which Parliament has chosen to discharge its obligations under international law and under the applicable treaty. I have described that system in greater detail in Kwok, at paras. 38, 39 and 78. The fugitive may, of course, forego any right of appeal from committal, or desist from an appeal already launched, and proceed directly to the executive level for a ministerial decision on surrender.

28 Even though the ultimate decision to surrender a fugitive to a Requesting State is an executive decision by the Minister of Justice, that decision cannot be made unless and until there has been a judicial determination, and, if necessary an appeal from that determination, that the Requesting State has presented before a Canadian court sufficient prima facie evidence to have the fugitive committed for surrender. As I have previously mentioned, that judicial phase is not a full-fledged trial, nor is it a mere formality. Unless the fugitive waives his or her right to a judicial hearing by consenting to committal, the Requesting State must present its case in court. In availing itself of the Canadian judicial process, the Requesting State, like any other party before our courts, and even more so when the liberty of a person is at stake, is subject to the doctrine of abuse of process.

29 Moreover, persons subject to extradition proceedings – both at the judicial and executive phase – are entitled to the protection of the Charter, and different Charter rights come into play at different stages of the process. Section 7, which for our purposes largely overlaps with the doctrine of abuse of process, guarantees a fair hearing, conducted in accordance with the principles of fundamental justice as they apply to a hearing of that nature. It applies, albeit differently, to both phases of the process.

30 Since 1992, provincial courts of appeal have a more central and important role to play in extradition matters. As I explained in Kwok, extradition proceedings prior to 1992 were fragmented and provincial courts of appeal would be seized of appeals from committals which were themselves subject to prior judicial review through writs of habeas corpus. Meanwhile, judicial review of the Minister’s decision to surrender was under the jurisdiction of the Trial Division of the Federal Court, with further possible appeal to the Federal Court of Appeal. Decisions from both appellate channels could ultimately be the subject of a leave application to this Court.

31 The 1992 amendments simplified that process by abolishing the recourse to habeas corpus and vesting jurisdiction in the provincial courts of appeal over both the appeal from committal and the judicial review from the Minister’s decision on surrender. The amendments allowed for the possibility of a combined hearing of both issues.

32 As some of the functions previously exercised by the habeas corpus judge are now within the competence of the superior court judge presiding over the committal hearing, the role of the Court of Appeal has also been significantly expanded, particularly with regard to alleged violations of constitutional rights. In the case of Charter issues arising at the ministerial stage, such as s. 6 mobility issues, the Court of Appeal is now the original judicial forum in which they can be raised. This unavoidably leads to an expanded role for the Courts of Appeal, including having to receive evidence relevant to the Charter challenges that neither the extradition judge nor the Minister had any obligation to receive.

33 Not only is the Court of Appeal a forum of original jurisdiction for Charter purposes under the Extradition Act as a result of the 1992 amendments, but it also has, like all courts, an implied, if not inherent, jurisdiction to control its own process, including through the application of the common law doctrine of abuse of process.

34 Albeit in a different context, the Court of Appeal for Ontario has invoked that doctrine to sanction the conduct of a litigant in the appeal process. In Ontario (Attorney General) v. Paul Magder Furs Ltd. (1991), 1991 CanLII 7053 (ON CA), 6 O.R. (3d) 188, leave to appeal to the Supreme Court of Canada denied, [1992] 2 S.C.R. ix, a corporation was the subject of a court order to close its retail business establishments on Sundays and holidays. The corporation continued to open in defiance of the order and was held in contempt of the order. The corporation appealed the contempt order and the Attorney General moved to quash the appeal or adjourn the proceedings until the corporation purged its contempt and undertook to obey the order of the court. The Court of Appeal agreed with the Attorney General and held that it was an abuse of process to assert a right to be heard in court while refusing to obey a court order that has not been properly stayed. The proceedings were adjourned as the corporation’s disobedience impeded the course of justice and impaired the ability of the court to enforce its orders.

35 In the present case, the appellant proposed to tender fresh evidence before the Court of Appeal, on which basis he was seeking a stay of proceedings on Charter grounds akin to the doctrine of abuse of process. I now turn to that evidence and to its admissibility and effect.

C. The American Statements as Fresh Evidence

36 In Cobb, I reviewed the statements made by the American judge and by the prosecutor which were found by the extradition judge in that case to constitute an abuse of process justifying a stay of proceedings. I found that the extradition judge was entitled to conclude as he did and to enter a stay. The same statements are at issue in this case, although distinctions must be made as to their potential impact. I will review each of them in turn.

37 As I indicated in Cobb, the statement by Judge Caldwell, which he made while sentencing a cooperative fugitive alleged to be a co-conspirator of the appellant, was capable of different interpretations. I restate the salient part of his remarks:

I want you to believe me that as to those people who don’t come in and cooperate and if we get them extradited and they’re found guilty, as far as I’m concerned they’re going to get the absolute maximum jail sentence that the law permits me to give.

38 The extradition judge in Cobb interpreted these remarks as an improper threat to penalize the fugitives for exercising their rights under Canadian law to resist extradition. That interpretation was a reasonable one, although in my view, Judge Caldwell’s remarks might have had a different intent. To repeat what I wrote in that judgment, at para. 17:

I agree that taken at face value, the remarks made by the sentencing judge in a related case reasonably bear the interpretation given to them by the extradition judge in this case. I wish to point out, however, that they may also carry a slightly different meaning, one that would cause me considerably less concern. Judge Caldwell was sentencing a person who had been cooperative. He was entitled to give credit to that cooperation in the sentence that he was about to impose. It is in that context that he stated, in relation to those who did not cooperate: “... if we get them extradited and they’re found guilty, as far as I’m concerned they’re going to get the absolute maximum jail sentence that the law permits me to give” (emphasis added). It is quite possible that the judge did not mean that he would impose the maximum sentence regardless of any other relevant factor, but simply that he would discount the maximum sentence by any other legally relevant factor, and then give no additional reduction in light of the absence of cooperation. This is, I would have thought, all that the law permits.

39 That ambiguous statement was made by the American judge a few months before the appellant’s extradition hearing and it seemed to have gone unnoticed by the appellant until it was raised by others in related proceedings.

40 The comments made by Mr. Zubrod are of a different nature. On Canadian television, he made an unambiguous statement to the effect that those who resist their extradition to face charges in the U.S. will, if convicted, be subjected to harsher incarceration conditions, including being exposed to sexual violence while in jail.

41 In my view, that statement was properly characterized by the extradition judge in Cobb as a shocking use of threats by a U.S. official attempting to induce Canadian citizens to renounce the exercise of their lawful access to courts in Canada in order to resist a U.S. extradition request. The statement was made almost two years after the appellant in this case had been committed for surrender by the extradition judge, but before the hearing of his appeal by the Court of Appeal. The statement emanated from the prosecutor who had carriage of the case in the U.S. and who was the author of the main affidavit upon which the extradition request was based. Therefore, the statement is properly attributed to the Requesting State, also the respondent in the Court of Appeal. The threat uttered by the prosecutor was never explained or withdrawn, and we must presume that it continues to be operative to this day.

42 The question then is whether the Court of Appeal should have received the evidence proffered by the appellant as fresh evidence and, if so, whether it should have stayed the proceedings against the appellant as a result.

43 I point out at the outset that the evidence tendered as “fresh evidence” in the Court of Appeal does not constitute fresh evidence as this was understood in the leading case of Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. Section 683(1)(d) of the Criminal Code provides an appellate court with the discretion to admit fresh evidence where it considers it in the interests of justice. In applying that provision, this Court in Palmer established a four-pronged test, which was confirmed, inter alia, in R. v. McAnespie, 1993 CanLII 50 (SCC), [1993] 4 S.C.R. 501, and, recently, in R. v. Lévesque, [2000] 2 S.C.R. 487, 2000 SCC 47, per Gonthier for the Court (I dissented on another point), to guide the discretionary power to admit fresh evidence on appeal.

(1) The evidence should generally not be admitted if it could have been adduced at trial through due diligence. In a criminal setting, this criterion is applied with more laxity, so that persuasive fresh evidence that fails to satisfy the due diligence requirement must be considered not in isolation but against the strength of the other factors and the interests of justice: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345; R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579.

(2) The evidence must be relevant in that it bears upon a decisive or potentially decisive issue in the trial. If the material sought to be admitted challenges the very validity of the trial process, the evidence should be admitted notwithstanding the criteria: R. v. W. (W.) (1995), 1995 CanLII 3505 (ON CA), 100 C.C.C. (3d) 225 (Ont. C.A.).

(3) The evidence must be credible in the sense that it is reasonably capable of belief.

(4) The evidence must be such that, if believed and when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result.

44 The Palmer test is applicable to quasi-criminal matters such as extradition proceedings. However, one must be mindful of the context and the purpose for which the evidence is tendered. Properly construed, the evidence here was tendered in the Court of Appeal for the purpose of invoking the jurisdiction of that court to control its own process, rather than for the purpose of asking the court to review the proceedings in the court below. In the same way, if evidence is required to support a Charter claim that can only be advanced for the first time in the Court of Appeal, as would be the case for matters that can only be raised after the Minister’s decision to surrender, upon judicial review by the Court of Appeal of that decision, the Palmer test is of limited application.

45 In such cases, the evidence is not offered as a foundation for reviewing the decision under appeal, but as a basis for requesting an original remedy in the Court of Appeal. Consequently, in these circumstances, the evidence must be relevant to the remedy sought before the Court of Appeal. It must be credible and sufficient, if uncontradicted, to justify the court making the order. Before this Court, the respondent argued that the Court of Appeal was correct in declining to hear as fresh evidence the comments of the U.S. judge and the prosecutor, since that evidence was irrelevant to the appellate review of the decision of the extradition judge. Such evidence could only be relevant at the executive phase, as it is the Minister who is tasked with making s. 7 assessments in the context of the decision to surrender (subject to judicial review by provincial courts of appeal).

46 This argument, in my view, mischaracterizes the purpose of the so-called fresh evidence. The s. 7 Charter claim that the appellant advanced in the Court of Appeal was an allegation of abuse of the ongoing judicial process. The process which the appellant maintained was being abused was the judicial phase of the extradition process, which includes the review of committal on appeal. In my view, the evidence was relevant to the appellant’s claim that the Requesting State, as a party to this litigation, disentitled itself from the assistance of Canadian courts by permitting its officials to behave as they did in this case.

47 Furthermore, the evidence was credible. Not only was it uncontradicted and unexplained, but the respondent made no efforts to distance itself from the impugned comments. Indeed, the evidence was acted upon in the related cases of Cobb and Tsioubris as a basis for granting the very remedy sought by the appellant before the Court of Appeal. In this sense, the evidence served to challenge the essential validity of the committal hearing, and thus played a decisive role in the analysis of those appeals. It would have played a similar role at the appeal against committal in the present case.

48 In my opinion, the Court of Appeal should have received the evidence tendered by the appellant and should have considered whether that evidence revealed an abuse of process which possibly tainted, if not the committal hearing itself, the legitimate appeal from it. Abuse of process is always better dealt with by the court where the abuse occurs: R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128.

49 Having reached this conclusion, I would normally remit the matter to the Court of Appeal for its consideration of the evidence and for its assessment of the intent and import of the remarks by the American officials. However, in the unusual circumstances of this case, no useful purpose can be served in sending the matter back to the Court of Appeal.

50 I have already expressed my opinion as to the appropriateness of staying the proceedings against the fugitives in Cobb. Even though I concluded in that case that the extradition judge did not err in granting a stay of proceedings on the basis of both the comments made by Judge Caldwell in 1995 and the remarks of prosecutor Zubrod in 1997, I take a slightly different view in the present case. I would disregard the comments of Judge Caldwell. As I indicated in Cobb, the interpretation given by Hawkins J. to the comments of Judge Caldwell was not an unreasonable one and I saw no reason to interfere with it on appeal. Here, on the other hand, I must consider this fresh evidence without the benefit of the assessment of either the extradition judge or the court of appeal. I must therefore come to my own conclusion about the import of Judge Caldwell’s comments. For the reasons I expressed above, his remarks, made in the course of a sentencing hearing, may not necessarily be construed as a threat of judicial retaliation directed at those who avail themselves of the Canadian judicial system to oppose an extradition request, as is their right. Taken alone, and in their proper context, these comments, in my judgment, would not be sufficient to sustain a claim of abuse of process.

51 On the other hand, the threats uttered by the U.S. prosecutor are, in my view, unambiguous and shocking. They were addressed generically, so to speak, to all those who were resisting extradition in the matter that Mr. Zubrod was prosecuting. As he himself put it when asked whether his threats had had any impact: “Well, out of the 89 people we’ve indicted so far, approximately 55 of them have said, ‘We give up’.”

52 Standing alone, the statements of the prosecutor constitute a sufficient basis upon which to disentitle the Requesting State from pursuing this matter further before the courts in Canada. This threat is still in effect as the United States appears as a respondent before this Court. We are therefore in as good a position as the Court of Appeal to intervene to protect the integrity of the judicial phase of the extradition proceedings against the appellant, including the appellate component of that judicial phase.

53 For the reasons given in Cobb, even though other remedies can always be considered and applied by the Minister at the surrender stage, such as a refusal to surrender or a surrender with preconditions, I am of the view that it is neither premature nor inappropriate for appellate courts to preserve their own integrity by disallowing the claim of litigants who use unconscionable means to advance their interests before the courts. All things considered, such was the case here.

D. Disclosure Issues and Use of Alleged Co-Conspirators’ Affidavit Material

54 In light of the above, it is not necessary to deal with the other issues raised in the appeal. However, since they were fully argued before us, I will dispose of them briefly. First, for the reasons given in Kwok and Cobb, I find no merit in the appellant’s arguments on the disclosure issues.

55 Second, the appellant argued before the extradition judge that the use of the affidavit material of alleged co-conspirators, who had pleaded guilty in the U.S. but had not been sentenced at the time of swearing the affidavits, violated his rights under s. 7 of the Charter. He submitted that using such evidence was an invitation to perjury by the alleged co-conspirators, who could tailor their evidence in favour of the prosecution to seek a lesser sentence. He argued that this material should have been excluded from the extradition proceedings under s. 24(2) of the Charter. The respondent submitted that there was no basis in Canadian law, and specifically under s. 7 of the Charter, for excluding such evidence.

56 An extradition judge has the power to exclude evidence under s. 24(2) of the Charter as a remedy for a violation of a fugitive’s constitutional rights. The Charter applies only domestically and has no effect extraterritorially, except to Canadian authorities: R. v. Cook, 1998 CanLII 802 (SCC), [1998] 2 S.C.R. 597. However, in an appropriate case, the extradition judge could exclude evidence gathered by the foreign authorities in such an abusive manner that its admission per se would be unfair under s. 7 of the Charter: United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462; R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562.

57 The impugned evidence at issue here is not inadmissible in Canadian law. The appellant has referred to R. v. Pipe (1966), 51 Cr. App. R. 17 (C.A.), in which Parker L.C.J. wrote, at pp. 20-21:

It may well be, and indeed it is admitted, that in strict law Swan was a competent witness, but for years now it has been the recognised practice that an accomplice who has been charged, either jointly charged in the indictment with his co-accused or in the indictment though not under a joint charge, or indeed has been charged though not brought to the state of an indictment being brought against him, shall not be called by the prosecution, except in limited circumstances.

58 However, this English rule goes further than Canadian practice. Indeed many cases have followed the broader interpretation formulated by McIntyre J. in R. v. Williams (1974), 1974 CanLII 1576 (CMAC), 21 C.C.C. (2d) 1 (C.M.A.C.) (leave to appeal to the Supreme Court of Canada denied, [1974] S.C.R. xii), at p. 11 and cited with approval by Ritchie J. for the majority of this Court in Shephard, supra, at p. 1086:

While the practice of calling an accomplice against whom unresolved legal proceedings are outstanding is to be frowned upon and even condemned involving as it does grave dangers in that a witness may be provided with a strong motive to colour his evidence or give false evidence I cannot say that such evidence is inadmissible nor that its reception will void a conviction. The effect of the Canadian decisions is to indicate that while such a step may affect the weight of evidence offered in this fashion it does not go to the question of admissibility.

See also R. v. Donaldson, [1988] O.J. No. 1232 (QL) (Dist. Ct.), per Wright Dist. Ct. J., and United States of America v. Cheung, [1998] Q.J. No. 3393 (QL) (Sup. Ct.), per Hesler J.

59 The fact that the affiants were awaiting sentence at the time of their evidence goes to weight, not admissibility. Weighing the evidence or assessing credibility is not part of the extradition judge’s jurisdiction, as this Court established in Shephard, supra, and it is not open to that judge to assume responsibility over the actions of foreign officials in preparing evidence or to assume that foreign courts will not give the fugitive a fair trail or cannot properly weigh evidence: Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536. The extradition judge and the Court of Appeal were correct in refusing to exclude this evidence.

VII. Conclusions and Disposition

60 The Court of Appeal erred in declining to receive the fresh evidence. Even if the U.S. Government did not endorse their views, by allowing its officials to place undue pressure on a Canadian citizen to forego due legal process in Canada, the Requesting State has disentitled itself from pursuing its extradition request before the courts. The intimidation bore upon the judicial phase of the extradition process in its entirety, thus engaging the appellant’s right to fundamental justice under s. 7 of the Charter as well as by virtue of the doctrine of abuse of process.

61 This Court, just as the Court of Appeal did, has the requisite jurisdiction to control the integrity of the proceedings before it, and to grant a remedy, both at common law and under the Charter, for abuse of process. Since the Requesting State in these proceedings, represented by the Attorney General of Canada, has not repudiated the statements of one of its officials that an unconscionable price would be paid by the appellant for having insisted on exercising his rights under Canadian law, this is a clear case where to proceed further with the extradition hearing would violate “those fundamental principles of justice which underlie the community’s sense of fair play and decency” (R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657, at pp. 658-59).

62 Accordingly I would allow the appeal and enter a stay of the extradition proceedings against the appellant.

Appeal allowed.

Solicitors for the appellant: Buhr & Kert, Toronto.

Solicitor for the respondent: The Department of Justice, Toronto.