Superior Court of Justice (Toronto Region)

COURT FILE NO.: EX 278/09

DATE: 2012-01-12

BETWEEN:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE REPUBLIC OF POLAND Requesting State/Respondent

• and -

WLADYSLAW HIERONIM BARTOSZEWICZ Person Sought/Applicant

COUNSEL: Moiz Rahman and Roy Lee, for the Attorney General of Canada Edward L. Greenspan, Q.C. and Julianna Greenspan, for the Applicant

rEASONS FOR DECISION OF BACKHOUSE, J. RELEASED JANUARY 12, 2012

Introduction

[1] The Republic of Poland seeks the extradition of Wladyslaw Hieronim Bartoszewicz (“the applicant”) from Canada pursuant to the United Nations Convention against Corruption for the purpose of his prosecution for fraud-related offences under the Polish Penal code.

[2] It is alleged that in March, 1995, while an official of the Polish government, the applicant demanded a bribe of $1,000,000 (USD) from Marek Dochnal to facilitate a successful bid in the privatization of Ozarow Cement Plan in Ozarow, Poland.

[3] It is submitted on behalf of the applicant that there should be a stay of proceedings based on an alleged abuse of process. The applicant’s argument in support of the stay on account of the abuse of process is twofold:

(1) There has been a “disguised extradition in the guise of a deportation proceeding”;

(2) The Attorney General of Canada (“AGC”) has obstructed the Court’s process in the conduct of these proceedings.

Because the conduct of these proceedings is raised, I set forth below the history.

History of These Proceedings

[4] In a motion I heard May 26, 2010, the applicant raised the issues of abuse of process and manifest unreliability and sought disclosure of documents in the possession of the AGC. The applicant submitted that there was a prior request for extradition which was denied by Canada followed by an attempt to deport the applicant through deportation proceedings, the purpose of which was to circumvent the proper extradition process. Counsel for the AGC submitted that there was no proof that there was a prior extradition request and no evidence of any communications between the Justice Department and Citizenship and Immigration Canada.

[5] In my decision released June 14, 2010, I dismissed the motion for disclosure because I found that there was no air of reality to the issues raised. I also did not accept the submission of “manifest unreliability” with respect to the evidence proferred in support of the committal.

[6] At the extradition hearing held December 14 and 15, 2010, the applicant renewed his request for a stay of proceedings based on the alleged abuse of process, namely a “disguised extradition in the guise of a deportation proceeding”. In the supplementary record then before me, there was a redacted note obtained from the applicant’s file with Citizenship and Immigration Canada obtained through Freedom of Information. The note stated:

“26 July 07-spoke with Martin Coyle [redacted] re above. He advised that Poland had sent an extradition pkg but due to lack of extradition treaty between CDA-Poland Min of Justice cannot act on req. Detective Coyle to find out fr Poland if charges or conviction been rendered in absentia to expedite removal of PI.”

[7] Counsel for the AGC characterized the note as a “cryptic note by an unnamed person who does not make clear what their basis is for making that statement” and as a “red herring”. He argued that there was no basis to conclude that there was more than one extradition request, no evidence that the request was received or refused and no evidence of any link between the extradition proceedings and the immigration proceedings. He submitted that the applicant was the one who made himself known to the immigration authorities by making an application and then they started looking into him. He submitted that there was no evidence that there was any communication or any push by any foreign state to have immigration proceedings commenced or continued to have the applicant returned to Poland and no evidence of any kind of cooperation between the two countries.

[8] In my decision released December 16, 2010, I concluded that there was an air of reality to the allegation of abuse of process based on the supplementary record and that an oral hearing was required. I therefore ordered the AGC to produce additional relevant documents. I also stated that I would case manage the oral hearing and that the parties should meet with a view to agreeing to a protocol for the evidence and to identify relevant production. I noted that extradition proceedings are intended to be quickly proceeded with and that I expected all parties and counsel to cooperate to ensure a fair hearing on the merits within 3 months.

[9] Regrettably, following my December 16, 2010 ruling, the issue of disclosure remained outstanding and this matter was returned before me several times. On January 26, 2011, the AGC produced 88 documents from the Justice Department’s extradition file. Of the 88 documents that were produced, redactions were made on the basis of relevance, solicitor and client privilege and because a third party had not given consent. The covering letter from counsel to the AGC to the applicant’s counsel that accompanied the documents stated, amongst other things, that “as soon as we hear back from third parties as to whether they consent to the release of that information we may be able to provide additional disclosure to you.” Although counsel for the applicant continued to request from the AGC the documents which had not been produced including those declined based on lack of third party consent, the documents were not produced.

[10] The applicant was aware that there were at least 235 pages in the file based on the results of his Request for Freedom of Information. Counsel for the AGC advised that he had not seen all of these documents himself. Instead, the file was culled by someone in the Justice Department for any communications where there was mention of “immigration” or “deportation”. This formed the basis of the AGC’s productions.

[11] On June 3, 2011, the applicant brought a motion where he submitted that the AGC had not complied with my ruling and where he sought unredacted copies of the documents. Counsel for the AGC submitted that certain documents could not be produced because of lack of consent of third parties and because of the possibility of harm to international relations, On June 28, 2011, I made a further order for production of documents after upholding the claims for solicitor client privilege in part. Although I dismissed the claim for solicitor-client privilege as between Poland and Canada, I gave the AGC two weeks from the release of the decision to advise if it wished to claim that a privilege other than solicitor and client applied to documents between the requesting state and the Department of Justice; Otherwise, these documents were to be produced. The AGC did not make further submissions.

[12] Counsel for AGC asked for time to consider the order and the proceedings were adjourned to June 30, 2011 and again at his request to August 8, 2011. On August 8, 2011, counsel for the AGC advised that the AGC was not prepared to provide the additional disclosure I had ordered and that he expected that counsel for the applicant would ask for a judicial stay. Counsel for the AGC gave no reasons for why the AGC would not comply with the order. Applicant’s counsel requested an adjournment to consider his position and the matter was adjourned to August 18, 2011.

[13] On August 18, 2011, applicant’s counsel requested that he be given an opportunity to have the Minister of the Attorney General and the Deputy Attorney General personally served with my order for the purpose of instituting contempt proceedings. He undertook to have the order personally served. The proceedings were adjourned to September 7, 2011 to permit service and to hear submissions as to whether contempt proceedings should be commenced.

[14] On August 26, 2011, the AGC’s counsel advised in writing that the AGC had complied that day with my order for disclosure. The proceedings were adjourned to September 19, 2011 to provide applicant’s counsel with an opportunity to review the productions. On September 19, 2011, applicant’s counsel confirmed that the disclosure was complete. October 31 and November 1, 2011 were scheduled to argue the abuse of process application. Submissions were completed on November 29, 2011.

[15] The productions made on August 26, 2011 disclose that:

a. On January 17, 2011, Citizenship and Immigration and the Canada Border Service Agency gave their consent to disclosure of documents originating from them.

b. On January 18, 2011, Cheryl Cruz, legal officer with the Criminal, Security and Diplomatic Law Division of the International Assistance Group advised Andrew Fobert, Senior Counsel with Justice’s International Assistance Group, that: 1) the view of Foreign Affairs was that disclosure of the documents will not likely cause harm to international relations; 2) therefore there was no basis to seek to withhold this record or portions under S.38 of the Canada Evidence Act; and 3) consent to its disclosure in its entirety was granted.

c. On January 19, 2011, the Polish prosecutor advised Andrew Fobert that Poland did not object to disclose documents emanating from Poland.

[16] At no point in the proceedings did the AGC invoke Section 37 of the Canada Evidence Act, R.S.C.1985, Chap.C-5 and object to the disclosure of information on the grounds of a specified public interest.

[17] These productions make clear that when counsel for the AGC submitted to me in June, 2011 that certain documents could not be produced because of lack of consent of third parties and because of the possibility of harm to international relations, in fact the AGC had already sought and obtained permission from third parties in January, 2011 to produce the documents the AGC had been ordered to produce, and the AGC had been advised by Foreign Affairs that disclosure would not likely cause harm to international relations.

Evidence of “disguised extradition in the guise of a deportation proceeding”

[18] The productions now made establish the following:

(1) On November 16, 2006, the Department of Justice’s International Assistance Group received a request from Poland for the arrest of the applicant for the purposes of extradition.

(2) On December 5, 2006, Detective Constable Martin Coyle, a RCMP officer with Interpol in Ottawa, advised Melanie Piche, a paralegal in the International Assistance Group, that based on the advice of Gisella Gagliardi, counsel for the Justice Department’s International Assistance Group, “we will be proceeding via immigration as we have no treaty with Poland and the subject has no status in Canada.” Detective Coyle’s notes from December 5, 2006 state that cancelling the applicant’s Canadian visa was discussed with IWRC [Immigration Warrant Response Centre] and that he would inform the Polish authorities that “we shall go via immigration as there is no treaty with Canada”. His notes state that he contacted the TFS (Toronto Fugitive Squad) and it was agreed that “we should revoke his visitor visa”. His notes further confirm that an email was sent to the Polish authorities “asking if they would like us to proceed through immigration or extradition” and that a reply was received from Poland on 2006/12/13 stating that “we could give the docs to Immigration.” His notes state that on 2006/12/14, the extradition documents were sent to Immigration and he informed the Polish authorities of this.

(3) On December 5, 2006, an email from Interpol’s National Central Bureau in Ottawa to the Polish authorities requested permission to proceed through immigration due to a lack of an extradition treaty between the two countries. The email stated: “We can cancel the Visitor Visa and possible deport this subject. Kindly advise our NCB which avenue you would like us to take on your behalf?”

(4) On December 13, 2006, the Polish Ministry of Justice State Public Prosecutor’s office responded, stating that it was their will that the wanted person be “detained and handed over to Polish justice authorities”, that they had no right to suggest to Canadian authorities the form they will choose, that they will accept any choice Canada makes, extradition or deportation and that they consent to deportation or extradition “because the need to bring the wanted person to a Polish court is urgent”.

(5) On January 25, 2007, the Appellate Prosecutor’s Office in Poland delivered an amendment of the request for the provisional arrest and extradition of the applicant.

(6) Starting in February, 2007, a series of emails were sent to and from the Department of Justice’s International Assistance Group where they sought information about the applicant’s immigration matter, refer to the Poles being anxious about this matter, comment on Poland having expressed dissatisfaction with Canada with respect to the extradition and state that they would like to be able to tell Poland reliably that the Canadian immigration authorities may be deporting him soon.

(7) On April 16, 2007, Claude LeFrancois, senior counsel with the Justice Department’s International Assistance Group, stated in an email to several people in the International Assistance Group that:

“It appears that Mr. B. currently has no status in Canada (he seems to be in Canada on a tourist visa), such that perhaps CIC [Citizenship and Immigration Canada] would not find him admissible in light of the allegations of criminality against him. We have heard recently, however, that he married a Canadian woman and that she has applied to sponsor him for residence in Canada. At the moment, we are trying to determine in consultation with CIC, whether it is possible/likely that B. might eventually be deported, which would of course render the above considerations moot.”

A second email a few minutes later stated: “One more thing. The U.N. Convention against corruption does cover this offence and Poland has ratified it. I suppose that they might make a request under that convention once Canada has ratified it. When is that likely to be?”

(8) On the same day, Francine Blais, a senior paralegal with the Justice Department’s International Assistance Group, emailed Citizenship and Immigration Canada and stated that pursuant to the review of the applicant’s extradition file, they wished to be informed on the applicant’s immigration status and whether he is the subject of any immigration review. On April 17, 2007, Citizenship and Immigration Canada responded that he had status as a visitor and no immigration review had been done at this time.

(9) On April 16, 2007 the Justice Department’s International Assistance Group emailed Citizenship and Immigration Canada:

“In light of the alleged criminal conduct and activities of Mr. B. in Poland, we would appreciate receiving an overall view of the position which may or will be taken by the immigration officer responsible for this client.”

(10) On April 18, 2007, an email was sent from Citizenship and Immigration Canada to the Justice Department’s International Assistance Group advising that “I am presently researching this case for you. Hopefully I can fill you in tomorrow.”

(11) On May 27, 2007, Poland wrote to the Department of Justice’s International Assistance Group to advise that they had not received any answer from Canadian authorities to their December 13, 2006 letter and reiterated that they accepted both extradition and deportation, any choices that will guarantee effective handing over of the wanted person to competent Polish authorities.

(12) On June 11, 2007, Poland again wrote to the Department of Justice’s International Assistance Group reiterating its wish to have the applicant transferred by extradition or deportation and enclosing a notice of cancellation of the applicant’s passport. The letter referenced legal advice from Ms. Gagliari of the Department of Justice that deportation of the applicant was very unlikely.

(13) On June 29, 2007, Poland wrote to the Department of Justice’s International Assistance Group asking that the request for extraditing the applicant be expedited and referring to the keen interest of Polish public opinion and Polish mass media in the course of this matter.

(14) On July 10, 2007, counsel to the Department of Justice’s International Assistance Group wrote to Poland to confirm that Poland had determined that the U.N. Convention on Tranational Organized Crime would not cover the offences for which they sought the applicant’s extradition nor would any other multilateral convention and it was not possible to consider proceeding with extradition. The letter continues: “However, should the authorities of Poland so wish we would, at your request, provide the documentation received to our immigration authorities in order that they may, determine whether any measures may be taken vis-a-vis this person under the relevant immigration legislation. We will await your written response before taking any steps with our immigration authorities.”

(15) On July 13, 2007, Poland responded by requesting that the documentation which they had sent to the Department of Justice be forwarded to the immigration authorities with Poland’s request to have the matter processed as appropriate.

(16) On July 27, 2007, senior counsel for the Department of Justice’s International Assistance Group wrote to the general counsel of Citizenship and Immigration Canada enclosing the documentation submitted by Poland in support of its request for extradition of the applicant. The letter stated:

“As there is presently no extradition treaty in place between Canada and Poland, extradition proceedings are not possible. With the consent of Polish authorities, we are forwarding the documentation to your attention, to determine what action, if any, may be taken in accordance with Canadian law.”

(17) On July 27, 2007, Barbara Kothe, counsel to the Department of Justice’s International Assistance Group, wrote to Poland to advise that the documentation which Poland provided in support of the extradition was forwarded to Citizenship and Immigration Canada. On the same day, in an interoffice email, counsel to the Department of Justice’s International Assistance Group stated: “It would not be accurate to say that the Polish authorities have actually withdrawn their request; they are however, pursuing a different avenue to secure Mr. B’s return to Poland.”

(18) On September 5, 2007, a message was sent from a Citizenship and Immigration Canada counsellor in the Canadian embassy in Poland to Citizenship and Immigration Canada officials inside Canada stating that this case had the potential to generate media attention and that it was impossible to understate the amount of Polish media time currently devoted to allegations of bribery by public officials. The message stated that they received a call from the Polish National Prosecutors office asking for urgent information about the applicant’s extradition and that while there is no extradition treaty, it appears that there might be inadmissibility grounds for removing him. The message noted that Citizenship and Immigration had closed its file on the applicant in 2006.

(19) On September 6, 2007, a Citizenship and Immigration Canada counsellor in the Canadian embassy in Poland emailed Citizenship and Immigration Canada officials inside Canada to advise that there was a written request from Poland for the applicant’s deportation. That same day the Director General, Case Management Branch of Citizenship and Immigration Canada directed that the case be “referred to CBSA/Inland Enforcement for a possible A44 report”.

(20) In October, 2007 Canada ratified the U.N. Convention against Corruption.

(21) On March 26, 2008, immigration proceedings were formally commenced against the applicant, based on the same allegations that form the basis of the initial extradition request. A report under subsection 44(1) of the Immigration and Refugee Protection Act stated that the applicant:

“is a person who is: a foreign national who has been authorized to enter Canada and who, in my opinion, is inadmissible pursuant to :

Paragraph 36(1)(c) in that there are reasonable grounds to believe is a foreign national who is inadmissible on grounds of serious criminality for committing an act outside Canada that is an offence in the place where it was committed and that if committed in Canada, would constitute an offence under an act of Parliament punishable by a maximum term of imprisonment of at least 10 years.”

(22) On March 31, 2008, Poland wrote counsel for the Justice Department’s International Assistance Group requesting the applicant’s extradition pursuant to the United Nations Convention against Corruption.

(23) On May 8, 2008, the applicant’s extradition file was reactivated under the U.N. Convention against Corruption. On May 8, 2008, the Justice Department’s International Assistance Group wrote to General Counsel for Citizenship and Immigration Canada as follows:

“Re: Wladyslaw Hieronim Bartoszeewicz (DOB Nov.14/51)-Extradition request by Poland

This is further to a letter sent by Barbara Kothe [counsel to the Department of Justice’s International Assistance Group] on July 27, 2007 in the above matter. For ease of reference, I am attaching a copy thereof.

Since this correspondence, would you be a position to report further on the status of immigration proceedings, if any, in Canada for this person.”

(24) On May 20, 2008, the Justice Department’s International Assistance Group again wrote to Citizenship and Immigration Canada stating:

“A review of our file indicates that our last correspondence to you dating back to May 8, 2008 remains unanswered.

Briefly, on July 27, 2007 our office provided you with a copy of the documentation which was presented by Poland in support of the extradition request for Wladyslaw Hieronim Bartoszewicz. As there is no extradition treaty or arrangement in place between Canada and Poland, extradition proceedings were not then possible.

Could your office be in a position to report further on the status of immigration proceedings, if any, in Canada for this person. Please advise me if this query needs to be addressed to someone else in your team.”

(25) On June 5, 2008, the Department of Justice’s International Assistance Group was advised by Citizenship and Immigration Canada that the applicant was a Polish citizen on a Canadian visitor status with a sponsorship application pending.

(26) On June 13, 2008, Francine Blais of the Department of Justice’s International Assistance Group wrote Elaine Krivel, counsel to the Criminal International Operations, Canadian Mission to the European Union, part of the Department of Justice’s International Assistance Group, as follows:

“Re:Bartoszewicz, Wladyslaw Hieronim - first extradition request (UNCAC) from the Republic of Poland to Ontario on charges of fraud, misappropriation of funds by means of deceit and abuse of authority

Please find attached the original request plus one (1) copy of:

Poland’s original request for the extradition of the above noted individual dated March 31, 2008 which was received at our office on May 23, 2008

Poland’s initial request for provisional arrest and extradition dated September 8, 2006;

Poland’s amendment of request for provisional arrest and extradition dated January 25, 2007.

CBSA [Canada Border Service Agency] national security Division reported this week that enforcement action has been initiated with a s. 44 report based on IRPA[Immigration and Refugee Protection Act] s. 35(1)(c)serious criminality. An admissibility hearing has not been scheduled yet. I am told by CBSA that this could be quite a lengthy process. This Polish citizen still has a valid visitor’s status in Canada until November, 2011. Mr. Bartoszewicz has applied for permanent residency based on a spousal sponsorship application. This application has been kept in abeyance pending the outcome of the enforcement action.

By email dated June 12, 2008, Barbara informed Cezary Michalczuk, National Prosecutor’s Office that you would be responsible for reviewing the request on the basis on the U.N. Convention against Corruption…”

(27) The record then contains a series of emails which show that the extradition and immigration proceedings were occurring simultaneously. On June 5, 2008, Cezary Michalczuk of the Polish National Prosecutor’s Office wrote to Barbara Kothe, counsel to the Department of Justice’s International Assistance Group, explaining that he had not contacted her for some time with regard to the extradition of Mr. Bartoszewicz because the Canadian authorities had decided to pursue administrative proceedings aiming at removing him from Canada. He then states:

“In the meantime, we decided to submit the previous extradition request (dated January 2007) on the new basis ie. the Convention on Corruption of the UN of 31.10.2003. In this regard we sent you the letter dated March 31, 2008 and since then we have not heard from you.

Could you please send me any update on this matter. Please do so a.s.a.p. as the state of play now –on our side– is a bit confusing as we do not know which of these two procedures is being pursued by Canadian Authorities.”

(28) On June 12, 2008, the Justice Department’s Ms. Kothe advised the Polish authorities that the Justice Department’s Ms. Krivel would be in touch with them shortly in regard to the extradition and that the removal proceedings were not being handled by her department, were ongoing and could take a considerable amount of time with an uncertain outcome.

(29) A number of emails then went back and forth between the Justice Department’s International Assistance Group and Citizenship and Immigration Canada whereby the Justice Department requested and was informed as to the status of the immigration proceedings. On July 14, 2009, the Justice Department was advised that the admissibility hearing was adjourned until October 16, 2009, that since he was not detained, the case was far from being on the fast track and adding to the delays, there were indications that a refugee claim was coming.

(30) On July 6, 2009, Poland’s extradition materials under the U.N.Convention Against Corruption were received in Ottawa.

(31) On July 21, 2009, the admissibility proceedings against the applicant were withdrawn on the basis that the applicant was “deemed rehabilitated as per R18(2(c)”.

(32) On August 10, 2009, extradition proceedings were authorized against the applicant.

(33) On September 25, 2009, Citizenship and Immigration Canada advised the Justice Department that the applicant had no status in Canada, his permanent residence application under the spousal class was put on hold due to his “warrant in”, he passed the first stage of his permanent resident application on August 10, 2009 and having been “deemed rehabilitated”, his admissibility hearing was withdrawn.

Deportation as Disguised extradition

[19] A deportation proceeding which is proved to have been a disguised extradition has long been recognized as an abuse of process. This conclusion flows from rule of law considerations. The rule of law is a foundational principle of our democracy. Where the executive uses a proceeding, e.g. deportation, for a purpose for which it is not intended, e.g. extradition, this conduct is a violation of the rule of law and constitutes an abuse of process.

[20] The purposes of extradition and deportation are fundamentally different. Extradition is intended to advance the requesting state’s interests. Canada’s only interest is to comply with its treaty obligations and to ensure compliance with the requirements for extradition as agent of the requesting state. Deportation proceedings (technically an admissibility hearing which results in a removal order) are to protect Canada’s national interests in removing, in accordance with our law, foreign nationals who are not entitled to be in Canada.

[21] What one needs to determine is the executive’s intent in commencing immigration proceedings. Ordinarily, intent cannot be proved by direct evidence.

[22] In this matter, the available evidence is a series of emails between Canada and Polish authorities, inferences from the conduct of the Canadian authorities, and inferences from the failure to call evidence which could have been adduced.

Findings of Fact and Analysis

Deportation as Disguised extradition

[23] I am satisfied on a balance of probabilities that the sole purpose of the deportation proceedings was to assist Poland in obtaining the return of the applicant. It was not a step taken because it was conducive to the public good. I have reached this conclusion for a number of reasons.

[24] First, the exchange of emails which I have outlined above, leads to the conclusion that deportation proceedings were only commenced because that is what the Polish government wanted. Citizenship and Immigration Canada seemed to have no interest in deporting the applicant until Poland became involved. The applicant had status as a visitor in Canada and had closed its file on the applicant at the time that the Justice Department on Poland’s behalf began trying to interest Citizenship and Immigration Canada in inadmissibility proceedings against the applicant.

[25] The Polish government expressed concerns about the delays in the proceedings and dissatisfaction with Canada. Correspondence from Poland in May and June, 2007 pressed for extradition or deportation, “any choices that will guarantee effective handing over of the wanted person to competent Polish authorities.” A letter dated June 29, 2007 from the Polish authorities to the Justice Department referred to the keen interest of Polish public opinion and Polish mass media in the course of the matter. In July, 2007 the Justice Department sought Poland’s written response before providing documentation to the immigration authorities. Poland immediately responded, requesting that the documentation which they had sent to the Department of Justice be forwarded to the immigration authorities. Further pressure from Poland about deporting the applicant came in September, 2007 via the Canadian embassy in Poland who reported receiving both a telephone call from the Polish National Prosecutors office asking for urgent information about inadmissibility grounds for removing the applicant and a written request for his deportation.

[26] The email dated July 27, 2007, referenced in subparagraph 16 (17) above is telling. The Polish authorities are said to be pursuing a different course from extradition to secure the applicant’s return to Poland. This can only refer to deportation.

[27] The same day Citizenship and Immigration Canada was advised of Poland’s written request to the Canadian embassy in Poland for the applicant’s deportation, the Director General, Case Management Branch of Citizenship and Immigration Canada directed that the applicant’s case be referred to the Canada Border Security Agency. On March 26, 2008, immigration proceedings were formally commenced against the applicant notwithstanding that by this time, Canada had ratified the U.N.Convention against Corruption and should have been aware that it covered the offence alleged against the applicant. The Justice Department thereafter continued to monitor the progress of the immigration proceedings.

[28] By July, 2009, when it appeared that the immigration proceedings were not resulting in a speedy removal of the applicant, Poland renewed its extradition request under the U.N.Convention Against Corruption and the immigration proceedings were withdrawn.

[29] The inference arises from Canada’s repeated seeking of Poland’s consent to Canada commencing deportation proceedings against the applicant, that without Poland’s consent, pressure and urging, nothing would have been done to attempt deportation. This inference is supported by the absence of any material suggesting that the deportation proceedings were initiated in the “public good” and in furtherance of Canada’s national interests.

[30] This conclusion is confirmed by a number of considerations. First, the s. 44(1) report against the applicant under the Immigration and Refugee Protection Act only referenced Section 36(1)(c) of the Act. It is not clear how Section 36(1)(c) even applied. The only Canadian crimes listed in the extradition proceeding actually commenced are Section 121(1)(a)(ii) and (3) of the Criminal Code. The documents submitted with the request for an admissibility hearing contained only these sections of the Criminal Code. These carry penalties of 5 years. Section 36(1)(c) requires 10 years. I appreciate that because Sections 121(1)(ii) and (3) are indictable offences, Section 36(2)(c) could have been used. However, it was not referenced in the Section 44(1) report.

[31] Of greater concern is the fact that the deportation proceedings were terminated on July 12, 2009 because the applicant was “deemed rehabilitated” pursuant to Section 18(2)(c)of the Act’s Regulations which provides:

“18(2) The following persons are members of the class of persons deemed to have been rehabilitated:

(c) persons who have committed no more than one act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, if all of the following conditions apply, namely:

(i) the offence is punishable in Canada by a maximum term of imprisonment of less than 10 years,

(ii) at least 10 years have elapsed since the day after the commission of the offence,

(iii) the person has not been convicted in Canada of an indictable offence under an Act of Parliament,

(iv) the person has not been convicted in Canada of any summary conviction offence within the last 10 years under an Act of Parliament or of more than one summary conviction offence before the last 10 years, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

(v) the person has not within the last 10 years been convicted outside of Canada of an offence that, if committed in Canada, would constitute an offence under an Act of Parliament, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

(vi) the person has not before the last 10 years been convicted outside Canada of more than one offence that, if committed in Canada, would constitute a summary conviction offence under an Act of Parliament,

(vii) the person has not been convicted outside of Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament.”

[32] The allegation against the applicant was that he committed the offence of bribery of a public official in Poland in March, 1995, more than 13 years before the commencement of Canada’s deportation proceedings. There is no allegation that while in Canada the applicant committed any crimes or illegal acts. The conditions in Section 18(2)(c) deeming a person rehabilitated applied equally to the applicant in March, 2008 when the proceedings were commenced as they did when the proceedings were withdrawn.

[33] The inference I draw from the commencement of immigration proceedings where, in fact, the applicant was not subject to a removal order because he was “deemed rehabilitated” is that there was no legitimate Canadian national interest in play. Rather, the step was taken to appease the Polish government.

[34] This is not a case where the applicant entered Canada illegally. The “safe haven” concern does not surface in this case. He entered Canada as a temporary resident pursuant to a valid visa first issued in 2001 and lived in Canada for a substantial period prior to any Polish proceedings.

[35] The delay in proceeding with any immigration proceedings after Poland sought extradition in late 2006 when there was no extradition treaty in force and their commencement in March, 2008 also suggests to me that the purpose was to assist Poland. If Canada believed it was “conducive to the public good” to deport the applicant, it would likely have shown more diligence.

[36] Counsel for the AGC submitted that the facts are consistent with cooperation between Canada and Poland and that cooperation was appropriate. I have no doubt that cooperation would be appropriate. However, seeking Poland’s consent to deport and receiving written requests for deportation go far beyond cooperation. Canada needed Poland’s cooperation to establish “criminality” under Section 36(1)(c) of the Immigration and Refugee Protection Act. It did not need cooperation to decide to commence immigration proceedings. It only needed to conclude that his deportation was “conducive to the public good”. Obviously because he was deemed rehabilitated, his deportation was not possible and there was no public good to be achieved.

[37] In my opinion, given the written record, all of which came from various government’s files, if innocent inferences were to be contended for, some oral evidence should have been called by the AGC. In fact, in anticipation that such evidence would be useful, I directed an oral hearing. However, the AGC chose to call no evidence. Its failure to call evidence which was available to it, confirms the inferences which I have drawn. (See Sopinka Lederman and Bryant, The Law of Evidence in Canada, 3rd ed., section 6.449 at pg 377 and Cross and Tapper on Evidence, 9th ed. at pp 36-39).

[38] In these circumstances, it is difficult to understand why extradition proceedings were not commenced once Canada ratified the UN Convention Against Corruption in October 2007 and instead deportation proceedings without any merit were commenced in March 2008. What seems to have happened is that the work up in immigration proceedings began in September 2007 (Paragraph 16 (19), above) and continued until formal proceedings were issued in March 2008. That Canada subsequently ratified the UN Convention in October 2007 seems to have been overlooked. The AGC neither called any evidence nor offered any explanation for these events.

Misconduct of AGC

[39] The applicant also alleges the AGC’s misconduct as a basis for a stay on the grounds of abuse of process.

[40] There is no doubt in my mind that the AGC’s conduct of this matter falls far short of acceptable behaviour. The AGC’s response to my first production order was woefully inadequate necessitating further attendances. Counsel for the AGC submitted that documents could not be produced because, amongst other things, third party consent was required and there was a risk to international relations. In fact, subsequent disclosure showed that both these contentions were untrue. The AGC had the consent of Poland, Citizenship and Immigration and the Canada Border Service Agency to disclosure of documents and Foreign Affairs had declared there was no danger to international relations. It is improper for counsel, who are officers of the court, and on whose factual representations courts must rely, not to be candid. It is no excuse that counsel before me did not personally review the documents. The disclosure exercise should have been supervised.

[41] After my order issued which gave the AGC the opportunity to make additional submissions if claims for privilege other than solicitor-client privilege were to be raised, the AGC’s counsel did not avail himself of this opportunity. Rather, after adjourning the matter twice to consider his position, he advised at the last possible moment that the AGC would not make the disclosure. He refused to explain why. Because I had largely refused production of documents for which solicitor/client privilege was claimed, it was difficult to understand the reasons for defiance of the order. After applicant’s counsel indicated he would seek a contempt citation, and undertook to serve the Minister and Deputy Minister of Justice personally, the matter was adjourned. Some days later, counsel for the AGC advised that it would make the disclosure. Counsel for the applicant submits that this defiance was a contempt of court and without merit given that the subsequent disclosure showed there was no factual basis for two principal objections.

[42] Counsel for the AGC submitted a book of authorities to support his submissions that the initial refusal to comply was not a contempt of court. In his submission, the refusal to comply with my order, was an acceptable strategem to achieve an appeal when, as in this matter, no appeal lies from an interlocutory order. (See Extradition Act, S.C.1999, c.18, Section 49.)

[43] AGC’s counsel referred to Regina v. Creswell, 2000 BCCA 583, 149 C.C.C.(3d) 286, a decision of the B.C.C.A. It supports the proposition that where a court orders documents produced for which privilege is claimed, the Crown has a choice. Comply or request a stay and then appeal. The Court held that this practise is supported by “necessity” and in those circumstances, the Crown is guilty neither of contempt nor abuse of process.

[44] In my opinion, this decision does not support the AGC’s conduct in this case. Regina v. Creswell, supra, dealt with claims of privilege. It is in that context that the justification of necessity arises. In the present case, most of the AGC’s claims of solicitor/client privilege were upheld. Most of the documents for which production was ordered did not include claims of privilege. For example, I did not accept a submission that allegedly irrelevant parts of relevant documents can be redacted. I also rejected claims of lack of third party consent and potential impairment of international relations. I also rejected the claim that Poland and Canada were in a solicitor/client relationship. Other grounds of privilege for these documents could have been argued but were not. Accordingly, R. v. Creswell does not support the complete refusal to comply.

[45] As well, as already noted, two of the bases alleged for non disclosure were not factually true. Asserting these grounds and then defying the order for their production was abusive.

[46] The assertion that “necessity” justified wilful non compliance is difficult to reconcile with the rule of law. Parliament deliberately chose to deny a right of appeal from interlocutory orders in extradition proceedings. The AGC cannot achieve indirectly what is not available directly. Moreover the claim of necessity cannot be made out where Section 37 of the Canada Evidence Act provides a basis for avoiding production prior to an appeal. In this case, the AGC did not invoke Section 37. In my respectful opinion, in the absence of a Section 37 application, the AGC must comply with production orders. Otherwise, it exposes itself, as it did here, to contempt proceedings.

[47] R. v. Creswell, supra, also proceeded differently. In Creswell, no application for contempt was made at trial. The Crown candidly declared its purpose. The Court issued a stay because of the failure to produce. Such a final order can be appealed and the validity of the production order challenged. On the appeal, it is too late to raise for the first time that the Crown was guilty of contempt. To consider an appeal from a final order which is expressly provided for in the statute as an abuse of court is at odds with the majority decision in Regina v. Power, 1994 CanLII 126 (SCC), 89 C.C.C.(3d) 1.

[48] I have concluded that it is a fair inference in this matter that production was stone-walled, and compliance of my order resisted, to avoid disclosure of the documents which tend to show a disguised extradition. It was only when looking down the barrel of potential contempt proceedings that the AGC was compliant.

[49] In the result, I consider the AGC’s conduct an abuse of process.

[50] The applicant submits that a stay of proceedings is the appropriate response to a disguised extradition which is an abuse of power and an abuse of process. In his submission, this conduct poisons the extradition proceedings. The AGC submits if there was an abuse of process, it did not impact the extradition proceedings.

[51] I have approached my analysis from the perspective that a stay should only be granted in the clearest of cases and only if the abuse of process prejudices the fairness of the hearing or the integrity of the judicial system. Where the abuse of process is alleged prosecutorial misconduct, even greater care must be taken.

[52] I have concluded that a stay of proceedings is the appropriate response in this matter. My reasons are these.

[53] First, the rule of law is a foundational principle in our democracy. Everyone is required to obey the law. Government is required to execute its powers for the purpose for which these are granted. When a power is exercised for a purpose other than its intended one, an abuse of power results. An abuse of power by government is a very serious misconduct. It must be addressed to ensure as far as possible that it will not be repeated in the future. A stay of proceedings is the only practicable way to deliver the message that abuse of power will not be tolerated.

[54] Second, in my opinion, it is not correct to conclude that the “disguised extradition” does not affect the subsequent extradition proceedings. It is possible for Canada to commence deportation proceedings and while these are pending, to receive an extradition request. So long as the deportation proceedings are for a valid purpose, the Immigration and Refugee Protection Act, S.C. 2001, c.27 provides a protocol in terms of which matter proceeds first. (See Section 105). However, the finding of “disguised extradition” means that in effect two extradition proceedings have been commenced, each relying on the same facts. It has long been a principle of the common law that no one shall be twice vexed or harassed for the same cause. The disguised extradition terminated in favour of the applicant. In my opinion, it was wrong to commence another extradition proceeding based on the exact same facts as had been the basis of the first one. This principle derives both from a requirement of fairness to individuals against whom actions are taken which can have punitive consequences and from the public interest in putting an end to litigation. As I see it, the applicant faced one extradition proceeding, albeit a disguised one; he should not be required to face a second one.

[55] It is unnecessary for me to consider whether the AGC’s conduct would warrant a stay on a stand alone basis i.e. assuming no disguised extradition. Yet, in my respectful opinion, its efforts at stonewalling production of documents to avoid disclosure of the “disguised extradition” is an aggravating factor and relevant to the exercise of discretion in considering whether a stay should be granted. The public expects the Crown to act fairly throughout. This expectation is a legal requirement. In this case, the expectation of fairness was not met.

[56] I have also considered the impact of a stay of proceedings on the Republic of Poland and its right to seek extradition of the applicant. Poland could have pressed for extradition in October 2007 when Canada ratified the U.N.Convention. Instead it was content to abide the deportation proceedings. In fact in the email dated September 6, 2007, it is reported that Poland had made a written request for the applicant’s deportation. In my opinion, having both consented to Canada’s proceeding with deportation and having requested that Canada deport the applicant, Poland must suffer the consequences of Canada’s abuse of power in proceeding with the deportation.

[57] In the result, the cavalier manner with which the applicant was treated in this case with the commencement of meritless deportation proceedings intended to bring about his extradition shocks my conscience and would shock the public’s conscience. The attempts to avoid disclosure also shock my conscience and would similarily affect the public. A stay of proceedings is therefore entered.

Extradition

[58] For completeness, in the event of an appeal, I express my opinion on whether the evidence adduced was sufficient for an order of extradition.

[59] Over the objection of counsel for the AGC, I reviewed a number of affidavits and 13 statements of the principal witness, Marek Dochnal, filed on behalf of the person sought. The purpose of the affidavits and statements was to demonstrate that the evidence in support of extradition was so unreliable that the charges would have to be withdrawn from the jury. This is a very high threshold.

[60] Having reviewed the affidavits and considered counsel’s submissions, I am satisfied that none of the affidavits contradict what is in the Record of the Case or undermine the evidence in support of extradition. Generally, the affidavits discuss the process of privatization, the procedures in place and the checks and balances. Some of the affidavits state that the applicant was not involved or not in a significant way in the privatization process.

[61] This is a case of alleged corruption. The whole nature of corruption is that it undermines checks and balances even though they are in place. It does not undermine the reliability of the evidence to say that that the privatization process is not corrupt. To make out the offence under s. 121(1)(d) of the Criminal Code, one does not need to have influence-it is sufficient to pretend to have it.

[62] Having reviewed the statements and considered counsel’s submissions, I am satisfied that the highest one can put the effect of these statements is this. Some inconsistencies in Mr. Dochnal’s evidence is shown. For example, the Record of the Case states that the applicant made a bribe of $1 million U.S to Mr. Dochnal on March 24, 1995. In his January 18, 2005 statement, Mr. Dochnal states that he thinks the date is after May 25, 1995 because prior to his receiving a letter from the Ministry of Ownership and Transformation in May 25, 1995, he saw no reason in dealing in other than the official and legal way. The applicant left the Ministry March 31, 1995. After being advised of this, Mr. Dochnal consulted a diary entry made ten years earlier by him which stated “1:30” and 5 meteorology tables for the month of March, 1995. He then identified March 24, 1995 as the day of the bribe on the basis that it was the warmest day in March.

[63] The applicant may have a defence. However, there is some evidence to support the charges for which extradition is sought. Indeed, counsel for the applicant did not submit otherwise. His argument is that the evidence is so unreliable to require a directed verdict of acquittal. The AGC has satisfied the requirements under the Extradition Act. My role is not to determine whether the applicant should be convicted. In my more limited role I am completely satisfied that the evidence adduced by the applicant is not sufficient to conclude that the case against him is so unreliable as to require a directed verdict of acquittal. Accordingly, I have concluded that there is a sufficient basis in the evidence to order the applicant committed for extradition on the charges in the Record of the Case and but for the stay of proceedings, I would have so ordered.

Backhouse J.

Released January 12, 2012

COURT FILE NO.: EX 278/09 DATE: 2012-01-12

ONTARIO SUPERIOR COURT OF JUSTICE

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE REPUBLIC OF POLAND

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WLADYSLAW HIERONIM BARTOSZEWICZ

REASONS FOR JUDGMENT

Backhouse J.

Released: January 12, 2012