COURT FILE NO.: E-11-9/245
DATE: 20121022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA (ON BEHALF OF THE UNITED STATES OF AMERICA)
- and -
JERIES YACOB QUMSYEH
Elaine Krivel Q.C.,
for the Crown, respondent
Anthony Moustacalis and Prasanna Balasundaram, for the accused, applicant
HEARD: September 28, 2012
Mr. Justice Kenneth L. Campbell:
I
Introduction
[1] The applicant, 59 year old Jeries Yacob Qumsyeh, is wanted in the United States of America to face a charge of murder in relation to the mid-August, 1982 killing of his ex-wife, Salwa Isaac, in Michigan. Ms. Isaac was killed by a single gunshot wound to the head. Mr. Qumsyeh is a citizen of the Kingdom of Jordan, and he left the United States and returned to his homeland following the death of Ms. Issaac, but before he was charged with her murder. The applicant now remains in detention in Canada on a provisional arrest warrant, pending his potential extradition to the United States. It appears that the applicant has already been prosecuted and convicted for this same murder in Jordan. Indeed, the applicant has already served a 15 year term of imprisonment in Jordan for this same crime.
[2] The applicant now seeks a disclosure order requiring the respondent, the Attorney General of Canada, to provide him with information pertaining to: (1) the efforts the United States took to seek his extradition from Jordan; (2) the involvement of the United States in the applicant’s prosecution in Jordan for this murder, including any information and/or evidence that the United States provided to Jordan to assist in the Jordanian prosecution of the applicant; and (3) the position taken by the United States regarding the applicant’s prosecution in Jordan.
[3] The applicant contends that Jordan was assisted in his prosecution by the United States. While there has not yet been an extradition hearing to determine the sufficiency of the evidence against the applicant, the applicant seeks this disclosure order in hopes of, eventually, advancing an argument that his extradition to the United States for this same murder, after having been already convicted and sentenced for it in Jordan, with the assistance of the United States, would violate the rule against “double jeopardy,” amount to an abuse of process, and/or violate the provisions of s. 7 of the Charter of Rights.
[4] The Attorney General of Canada is opposed to this disclosure order for essentially three reasons. First, the Crown contends that this disclosure application is premature because the issue of double jeopardy is one for the Minister of Justice to consider during the surrender phase of the extradition proceedings. Second, the Crown argues that the request for a disclosure order is not a justiciable Charter of Rights claim within the jurisdiction of an extradition judge. Third, the Crown suggests that, as the information and/or materials sought by the applicant are under the control of the United States, this court has no jurisdiction to issue an order compelling the United States to provide this requested information and/or material.
[5] Accordingly, the basic issue on this application is whether the applicant is entitled, at this stage of the extradition process, to a disclosure order requiring the American prosecutorial authorities to provide any available information to the applicant as to their involvement in his earlier prosecution in Jordan for the murder of his ex-spouse.
[6] Before turning to an analysis of this issue, however, it will be useful to outline the general, functional operation of the Extradition Act, S.C. 1999, chap. 18, and the usual procedure as to how “double jeopardy” issues are typically dealt with in extradition matters.
II
Overview of the Functional Operation
of the [Extradition Act](https://www.canlii.org/en/ca/laws/stat/sc-1999-c-18/latest/sc-1999-c-18.html)
A. Introduction
[7] As Arbour J. explained, in delivering the judgment of the Supreme Court of Canada in United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 27-44, extradition is primarily a function of the executive branch of government and a product of international agreements between States. In Canada, the extradition process is, of course, governed by the Extradition Act, which codifies Canada's international obligations with respect to the surrender of fugitives who are alleged to have committed crimes in other countries.
[8] The Extradition Act sets out the manner in which extradition proceedings must be conducted. There are essentially two stages to the process – committal and surrender. The functional responsibilities with respect to each stage are divided, according to the Act, between the judiciary and the executive. The first phase involving the potential committal of the fugitive is the responsibility of the judiciary. The second phase involving the potential surrender of the fugitive to Canada’s extradition partner is the responsibility of the executive. The extradition process, more particularly, potentially involves the following steps.
B. Starting the Extradition Process – The Authority to Proceed
[9] First, once an extradition request has been received from an extradition partner, the Minister must determine, pursuant to s. 15(1) of the Act, whether to issue an “authority to proceed” that authorizes the Attorney General to seek, on behalf of the extradition partner, a court order of committal respecting the person sought to be extradited. In other words, this first stage commences the extradition process in Canada. That step has, of course, already taken place in the present case.
C. The Extradition Hearing
[10] Second, pursuant to s. 24(1) of the Extradition Act, upon receipt of the “authority to proceed” from the Attorney General, a judge holds an extradition hearing. The limited statutory role of the extradition judge at such a hearing is to assess the evidence to determine, in the case of a person sought for prosecution, whether there is admissible evidence of conduct that, had it occurred in Canada, “would justify committal for trial” for the alleged offence.
[11] In other words, much like a justice conducting a preliminary inquiry under Part XVIII of the Criminal Code, the extradition judge will generally order the committal of the person sought to be extradited under s. 29(1) of the Act if the judge concludes that there is admissible evidence upon which a reasonable jury, properly instructed, could convict the fugitive. See: United States of America v. Sheppard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828. The extradition judge is permitted, however, to remove evidence from judicial consideration if the judge is satisfied that the evidence is so manifestly unreliable or defective that it should be disregarded and given no weight. See: United States of America v. Ferras; United States of America v. Latty, 2006 SCC 33, [2006] 2 S.C.R. 77; Italy v. Caruana, [2004] O.J. No. 5851 (S.C.) at para. 153; Affirmed: 2007 ONCA 488, at para. 16; Leave denied: [2007] S.C.C.A. No. 474.
[12] Recently, in United States of America v. Leonard, 2012 ONCA 622, Sharpe J.A., delivering the judgment of the Court of Appeal for Ontario, helpfully articulated the legal test to be applied by an extradition judge at this stage of the process, at para 31:
The extradition judge applied the correct test for committal: was there available and reliable evidence upon which a reasonable jury, properly instructed, could convict a sought person for the corresponding Canadian offence listed in the Authorization to Proceed. … Where, as in this case, the evidence is circumstantial in nature, an extradition judge must weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences the trier of fact will be asked to make. “If the inferences required are within the field of inferences available on the whole of the evidence, nothing else matters”. … [citations omitted]
[13] It is not the function of the extradition hearing judge to consider the means by which the foreign officials may have prepared the evidence for the extradition hearing. Nor is it the judge’s function to weigh the ultimate issue as to the effect of any delay on the trial in the jurisdiction of the extradition partner. Nor is it open to the extradition judge to consider the application of any defences that might be raised at trial by the fugitive. See: Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536, at para. 28-38; Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500, at para. 28; McVey v. United States of America, 1992 CanLII 48 (SCC), [1992] 3 S.C.R. 475; United States of America v. Lépine, 1994 CanLII 116 (SCC), [1994] 1 S.C.R. 286, at p. 296.
[14] In this regard it is important to recall the true nature and purpose of an extradition hearing. As Watt J., as he then was, observed in Germany v. Schreiber, [2000] O.J. No. 2618 (S.C.J.), at para. 57:
… extradition is to be and remain an expedited process to ensure prompt compliance with Canada's international obligations that our statute and treaties reflect. These authorities, and others like them, remind extradition hearing judges that the hearing is not a trial, nor should it be allowed to become a trial, as though it were a domestic criminal proceeding. It is not simply a matter of degree. There is a difference in kind between an extradition hearing and the trial of a domestic criminal case.
[15] The authorities have, however, always maintained a limited jurisdiction, to be exercised in exceptional cases, to provide relief to a fugitive under the Charter of Rights. However, as the following passages from the majority judgment of LaForest J. in Argentina v. Mellino, at para. 33-37, suggest, extradition hearing judges should be most reluctant to pre-emptively interfere with the manner in which the executive may fulfill its responsibilities:
There may, it is true, conceivably be situations where it would be unjust to surrender a fugitive either because of the general condition of the governmental and judicial apparatus or, more likely, because some particular individual may be subjected to oppressive treatment. These are judgments, however, that are pre-eminently within the authority and competence of the executive to make. The courts may, as guardians of the Constitution, on occasion have a useful role to play in reviewing such decisions, but it is obviously an area in which courts must tread with caution.
Finally, in exercising jurisdiction over executive action, a court must firmly keep in mind that it is in the executive that the discretion to surrender a fugitive is vested. Consequently, barring obvious or urgent circumstances, the executive should not be pre-empted. In cases where the feared wrong may be avoided by interstate arrangements, it may be doubted that the courts should ordinarily intervene before the executive has made an order of surrender. As already mentioned, the primary responsibility for the conduct of external relations must lie with the executive. The executive may well be able to obtain sufficient assurances from the foreign country to ensure compliance with the requirements of fundamental justice. It would, of course, be open to the courts to review any such arrangements to ensure compliance with Charter requirements. However, a court would have to be extremely circumspect in taking such a course. It should not lightly assume that the executive has ignored its undoubted duty to ensure that its actions conform to constitutional requirements or that a foreign country would not act in good faith in complying with such assurances.
[emphasis added]
[16] The decision of the Court of Appeal for Ontario in United States of America v. Khadr (2011), 2011 ONCA 358, 106 O.R. (3d) 449 (C.A.); Leave denied: [2011] S.C.C.A. No. 316, however, serves as a helpful reminder that, in some exceptional circumstances, an extradition judge may stay the extradition proceedings against the fugitive on the basis of an abuse of process and violation of s. 7 of the Charter of Rights, where the impugned conduct of the foreign state taints the integrity of the extradition court. As Sharpe J.A. observed, in delivering the judgment of the court, at para. 34-52, in such circumstances, the fact that the executive may have the statutory jurisdiction to refuse to issue a surrender order for this same reason, does not deprive the extradition hearing court of the jurisdiction and power to “protect its own integrity by staying proceedings on the ground of abuse of process.” See also: R. v. Larosa (2002), 2002 CanLII 45027 (ON CA), 166 C.C.C. (3d) 449 (Ont.C.A.), at para. 50-52; United States of America v. Licht (2002), 2002 BCSC 1151, 168 C.C.C. (3d) 287 (B.C.S.C.), at para. 29-31, 64.
[17] Of course, if the extradition judge orders committal, the fugitive has a right of appeal against this decision to the court of appeal.
D. The Potential Surrender Order – The Decision of the Minister
[18] In the event that the judge, at the conclusion of the extradition hearing, orders the committal of the fugitive, the next step of the process, pursuant to s. 40(1) of the Extradition Act, permits the Minister to personally order the surrender of the person to the extradition partner. This next step in the extradition process is, essentially, political in nature. See: Idziak v. Canada (Minister of Justice), 1992 CanLII 51 (SCC), [1992] 3 S.C.R. 631, at para. 56; United States of America v. Kwok, at para. 32.
[19] Under the provisions of the Extradition Act, there are a number of considerations that the Minister is obliged to assess in making this decision. Significantly, according to s. 43(1) of the Act, the person committed may make submissions to the Minister on “any ground that would be relevant to the Minister” in making the decision as to whether or not to order surrender. There are two particular statutorily enumerated relevant considerations for the Minister that could be addressed in submissions by the applicant. According to s. 44(1)(a) of the Act, the Minister “shall refuse” to make a surrender order if satisfied that the surrender would be “unjust or oppressive” having regard to all the relevant circumstances. Under s. 47(a) of the Act, the Minister “may refuse” to make a surrender order if satisfied that the person sought to be extradited would be entitled, if that person were tried in Canada, to be “discharged under the laws of Canada because of a previous acquittal or conviction.” It is apparent from these statutory provisions that considerations regarding potential “double jeopardy” issues are matters for the consideration of the Minister in deciding whether or not to issue a surrender order.
[20] In deciding whether or not to order surrender, the Minister must consider whether surrender would violate the person’s rights guaranteed by s. 7 of the Charter of Rights. The applicable test in this regard is whether ordering surrender would “shock the conscience” or whether extradition would place the person in an “unacceptable” situation. In making this assessment, the Minister must consider and balance all relevant factors specific to the fugitive, including whether extradition would be unjust or oppressive given the age or mental condition of the fugitive, or any discrimination based on race or religion, or whether there are more general concerns about a particular form or punishment, issues of double jeopardy, or the operation of a limitation period. See: Canada v. Schmidt, at para. 46; United States of America v. Allard, 1987 CanLII 50 (SCC), [1987] 1 S.C.R. 564, at para. 16; United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469; Kindler v. Canada (Minister of Justice), 1991 CanLII 78 (SCC), [1991] 2 S.C.R. 779; Reference Re Ng Extradition (Can.), 1991 CanLII 79 (SCC), [1991] 2 S.C.R. 858; United States of America v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283 at para. 63-69; United States of America v. Kwok, at para. 34; United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, at para. 34; Bouarfa v. Canada (Minister of Justice), 2012 QCCA 1378.
[21] Significantly, many appellate court decisions have stressed the important division of responsibility in relation to potential issues under the Charter of Rights. More specifically, these authorities remind us that it is the executive where the power is statutorily vested to order the surrender of the fugitive. It is the Minister who is obliged to consider the potential surrender of the fugitive against arguments that such surrender would amount to an abuse of process, place the fugitive in double jeopardy, or otherwise violate the guarantees in the Charter of Rights. It is not for the courts to “pre-empt” the Minister in considering these issues by prematurely interfering in the responsibility of the executive. See: Argentina v. Mellino, at pp. 558; Canada v. Schmidt, at p. 552; See: United States of America v. Kwok, at para. 35-37.
[22] Of course, if the Minister orders the surrender of the fugitive, this decision may be the subject of an application for judicial review in the court of appeal. The discretion at the heart of any such decision to surrender a fugitive will attract a high degree of deference on such a judicial review application. After all, as the Supreme Court of Canada noted in Lake v. Canada (Minister of Justice), [2008] 2 S.C.R. 761, at para. 41, the Minister has the “expertise and [the] obligation to ensure that Canada complies with its international commitments” and it is the Minister who “is in the best position to determine whether the factors weigh in favour of or against extradition.” However, “much less deference” is due to the Minister in assessing the constitutional rights of the fugitive. See: Whitley v. United States of America (1994), 1994 CanLII 498 (ON CA), 20 O.R. (3d) 794 (C.A.), at p. 805; Affirmed: 1996 CanLII 225 (SCC), [1996] 1 S.C.R. 467; United States of America v. Kwok, at para. 93-94; Stewart v. Canada (Minister of Justice) (1998), 1998 CanLII 6226 (BC CA), 131 C.C.C. (3d) 423 (B.C.C.A.), at pp. 432-433; United States of America v. Leonard, at para. 47-48.
E. Conclusion
[23] Accordingly, from this review of the extradition process it is apparent that, as Watt J. noted in Germany v. Schreiber, at para. 72, under the Extradition Act, the Minister and extradition hearing judge largely occupy “two different solitudes,” in that each “operates independently of the other” and that “neither intrudes into the other’s area of responsibility” without good reason.
III
Double Jeopardy Issues in Extradition Matters
A. Introduction - The Provisions of the [Extradition Act](https://www.canlii.org/en/ca/laws/stat/sc-1999-c-18/latest/sc-1999-c-18.html)
[24] As already noted, under the Extradition Act, the Minister is given the statutory jurisdiction to consider “double jeopardy” issues in determining whether or not to issue a surrender order. Indeed, according to s. 47(a) of the Extradition Act, the Minister may refuse to make a surrender order if the fugitive sought to be extradited would be entitled, if tried in Canada, to be discharged under the laws of Canada because of a “previous acquittal or conviction.” Accordingly, courts have been understandably hesitant to deal with double jeopardy issues such as autrefois acquit, autrefois convict, and res judicata, especially before the Minister has had an opportunity to consider them.
B. The Supreme Court of Canada Decision in Canada v. Schmidt
[25] The leading case in this regard remains Canada v. Schmidt, where the Supreme Court of Canada dealt with the issue of how the defence of “double jeopardy” ought to be dealt with in the extradition process. The fugitive argued that the rule against double jeopardy was so fundamental to Canadian criminal law that Parliament must have intended to permit this defence to be presented at the extradition hearing. In rejecting this pure extradition law argument, LaForest J., delivering the judgment of the majority of the Court, at para. 29-30, held that this would “import trial procedures” into the extradition hearing, an approach that was “out of keeping with extradition law generally.” LaForest J. noted that, as such pleas are made at trial under our domestic criminal law, so too in extradition matters “these are issues that can be raised at the trial in the foreign country.” The country seeking surrender under a treaty “must be trusted with the trial of offences.”
[26] In Canada v. Schmidt the fugitive also argued, however, that a different result was required by ss. 7 and 11(h) of the Charter of Rights. In concluding that s. 11(h) of the Charter did not apply to an extradition hearing, LaForest J. concluded, at para. 36-37:
The right is that of a person charged with an offence not to be tried for the offence again if he or she has already been finally acquitted of the offence. The Government of Canada, to which the Charter applies, is not trying the fugitive. An extradition hearing, we saw, is not a trial. It is simply a hearing to determine whether there is sufficient evidence of an alleged extradition crime to warrant the Government under its treaty obligations to surrender a fugitive to a foreign country for trial by the authorities there for an offence committed within its jurisdiction. To repeat, s. 11(h) was not intended to be given extraterritorial application so as to govern criminal processes in another country. It was intended to govern trials conducted by the governments of this country mentioned in s. 32. Here no trial is being conducted by the Government of Canada. If a trial is to be held, it will be conducted by a foreign government in a foreign country for an offence under its laws.
Fundamentally, what the appellant seeks to do is to restructure the extradition hearing (which is simply one to determine a condition precedent to the executive's power to surrender, i.e., whether there is a prima facie case that an alleged extradition crime was committed) into a quite different proceeding to determine whether the foreign trial meets the standards of a trial conducted in this country. I agree with the extradition judge … that he had no jurisdiction to do this.
[27] In considering the potential application of s. 7 of the Charter, LaForest J. concluded, at para. 47, that there may be some circumstances where the manner in which the foreign state will deal with the fugitive on surrender, whether justified under its domestic law or not, that the surrender of the fugitive under those circumstances would violate the principles of fundamental justice protected by s. 7 of the Charter. LaForest J. recognized that situations might well arise where the nature of the criminal procedures or penalties in a foreign country “sufficiently shocks the conscience” that any decision to surrender a fugitive for trial there would breach s. 7 of the Charter. LaForest concluded, however, that, even in such circumstances, in most cases:
… judicial intervention should await the exercise of executive discretion. For the decision to surrender is that of the executive authorities, not the courts, and it should not be lightly assumed that they will overlook their duty to obey constitutional norms by surrendering an individual to a foreign country under circumstances where doing so would be fundamentally unjust.
[28] Moreover, LaForest J. made it clear that it was not generally appropriate to consider the potential application of “double jeopardy” issues at the extradition hearing. More particularly, in concluding that there was no violation of s. 7 of the Charter in this case, LaForest J. stated, at para. 56-57:
I do not think our constitutional standards can be imposed on other countries. A person who is accused of violating the laws of a foreign country within its jurisdiction cannot, it seems to me, rightly complain that she has been deprived of her liberty and security in a manner inconsistent with the principles of fundamental justice simply because she is to be surrendered to that country for trial in accordance with its traditional procedures, even though those procedures may not meet the specific constitutional requirements for trial in this country. In particular, I do not think we should attempt to export our particular version of the technical pleas of autrefois acquit and res judicata to a foreign country. Still less do I think that these should be raised at an extradition hearing, where to rely on such pleas, in a setting where foreign law must be proved and where facts may have to be established under procedural and evidentiary rules different from those of the requesting state, invites importing into extradition proceedings factors which the experience of over a hundred years establishes to be unwise.
I find it unnecessary then to explore whether the foreign courts should, on such evidence as we now have, give effect to the pleas of autrefois acquit and res judicata. This is not to say that the underlying considerations involved in these pleas are to be ignored in considering whether the executive should refuse to surrender on the grounds that such surrender would violate the principles of fundamental justice. Repeated attempts by the same prosecutorial authorities to prosecute a person for the same offence may, in certain circumstances, well amount to harassment sufficiently oppressive that surrender of such a person would violate those principles. As I mentioned earlier, however, the courts should intervene only in compelling situations.
C. The Other Relevant Judicial Authorities
[29] Following this lead from the Supreme Court of Canada, extradition hearing judges have continued to refrain from engaging in the consideration of potential double jeopardy issues in foreign states, leaving it to the executive to determine, under s. 47(a) of the Extradition Act, whether to refuse to issue a surrender order on the basis of a double jeopardy argument flowing from a “previous acquittal or conviction.”
[30] For example, in United States of America v. Drysdale (2000), 2000 CanLII 22651 (ON SC), 32 C.R. (5th) 163 (S.C.J), Dambrot J. dismissed an application brought by a fugitive, pursuant to s. 24 of the Charter of Rights, in advance of the extradition hearing, on the basis that his extradition would violate his rights against double jeopardy. In rejecting this argument, Dambrot J. stated, at para. 24:
I note that where a person sought advances a meritorious claim of double jeopardy, the Minister has ample jurisdiction to vindicate it. Section 44(1) of the Act compels the Minister to refuse to make a surrender order where surrender would be unjust or oppressive. Section 47 permits the Minister to refuse to make a surrender order where the person would be entitled, if charged in Canada, to be discharged because of a previous acquittal or conviction. In addition, article 4 of the Treaty on Extradition Between Canada and the United States of America provides that extradition shall not be granted when the person whose surrender is sought has been tried and discharged or punished in the territory of the requested state for the offence for which his extradition is requested. I do not presume the outcome of the application of any of these provisions. I simply point out that the Minister has responsibilities with respect to this issue. Her decision is subject to review in the Court of Appeal. I see no good reason for me to strain to usurp the function of the Minister or the Court of Appeal. It seems apparent that this application is premature.
[31] The Court of Appeal for Ontario confirmed the legal propriety of this approach in United States of America v. K.(J.H.) (2002), 2002 CanLII 44985 (ON CA), 165 C.C.C. (3d) 449. In advancing both an appeal against the committal order of the extradition judge and a judicial review application challenging the surrender order made by the Minister, the fugitive argued that, in light of earlier criminal proceedings in Ontario in relation to the allegedly same sexual assaults against his daughter, his ordered extradition to the United States put him in double jeopardy. Both appellate proceedings were dismissed. In considering the appeal from the committal order of the extradition judge, McMurtry C.J.O., delivering the judgment of the Court of Appeal, accepted the correctness of the approach adopted by the extradition judge, at para. 24-25:
In my view the extradition judge was correct when he expressed the view that his role in the extradition proceeding was a limited one. In his reasons he stated as follows:
In an extradition hearing, as indicated in the decisions in Republic of Argentina v. Mellino, U.S.A. v. Dyner, and in Regina v. Schmidt, my principal concern is to determine whether there is a prima facie case that an alleged extradition crime was committed and if so, to order the fugitive committed for surrender pursuant to s. 18 of the Extradition Act.
Questions of autrefois acquit or res judicata are matters that must be considered by the executive branch of the government, subject to ultimate judicial review if those considerations are not properly resolved.
The issue of Charter defences or potential abuse of process are other matters that must be considered by the executive or by an appellate court upon a judicial review. In short, an extradition judge's authority under s. 18 of the Extradition Act is limited to determining whether the fugitive's act would constitute a crime in Canada ...
In my opinion the record of the sentencing of the appellant that was before the extradition judge does not support a finding that the sentencing judge took into consideration the appellant's conduct towards his daughter in Florida. In any event, the conclusion of the extradition judge was correct when he did not apply Article 4(1) of the Treaty notwithstanding his finding that the appellant was punished in Ontario for the offence for which his extradition was requested.
[32] McMurtry C.J.O. also concluded that the extradition judge was correct in not applying s. 7 of the Charter of Rights in the circumstances of this case, given that the “double jeopardy” claim advanced by the fugitive did not relate to any issue relevant to the committal stage of the extradition process. More particularly, McMurtry C.J.O. stated, at para. 33:
I am of the view that the extradition judge was correct in not applying s. 7 in the circumstances of this case. As expressed by Arbour J. in Cobb, … the extradition judge's jurisdiction to grant Charter remedies is generally limited to the circumscribed issues relevant at the committal stage of the extradition process, including determining whether the hearing is conducted in accordance with the principles of fundamental justice. However, when it comes to considering whether the severity of the potential penalty to be imposed would breach s. 7 of the Charter, that issue is not for the extradition judge to determine but should be left for the Minister's consideration.
[33] Similarly, in United States of America v. Chang (2006), 2006 CanLII 2616 (ON SC), 205 C.C.C. (3d) 258 (S.C.J.) Garton J. dealt with an application by a fugitive, during the course of an extradition hearing, to stay the proceedings on the basis that they were an abuse of process and a violation of s. 7 of the Charter of Rights on double jeopardy grounds. Expressly applying the reasoning of Dambrot J. in United States of America v. Drysdale, at para. 27, Garton J. concluded, at para. 47-51:
What the applicant is asking the court to do in this case is to consider and apply Article 4(1) – a jurisdiction that I clearly do not have – before the Minister, who does have that jurisdiction, considers it. In other words, the only way that the court can get to the point of considering whether the applicant's s. 7 Charter rights have been violated is by treading into territory that is clearly within the province of the Minister and outside this court's statutory mandate. In my view, following such a course would constitute a clear case of the court reaching out to bring within its jurisdictional ambit a matter that the Act has not assigned to it. This is exactly what the court in McVey … stated that an extradition judge must not do.
It is clear from the decision in Cobb that the court possesses the power to preserve the integrity of its own process, which includes the jurisdiction to grant remedies based on s. 7 of the Charter or the common law. However, the present case is not one in which the integrity of the court is compromised or the court proceedings are irreparably tainted. As reiterated in the decision in K. (J.H.), the issue of double jeopardy falls squarely within s. 47 of the Act and Article 4(1) of the Treaty, and is a matter to be considered by the executive branch of the government, not by the extradition judge. Unlike the situation in Cobb, the Minister is in a position to address the unfairness alleged by the applicant.
It is not for this court to presume the outcome of the Minister's decision with respect to Article 4(1). Whatever that decision, it will be subject to review in the Court of Appeal. As stated in Schmidt v. The Queen, … in most cases, judicial intervention should await the exercise of executive discretion. The decision to surrender is that of the executive authorities, not the courts, and it should not be lightly assumed that they will overlook their duty to obey constitutional norms and to abide by and properly apply the provisions of the Act and relevant treaty.
IV
Applications for Disclosure
A. Introduction
[34] This case is not, however, only about consideration of the applicant’s legal argument about “double jeopardy.” In the present case the applicant seeks an order requiring disclosure of information pertaining to the involvement of the extradition partner, the United States of America, in the prosecution of the applicant in Jordan. With respect, the governing authorities make it clear that such a disclosure application is both premature and made to the wrong authority. In my view, such a disclosure request must be made by the applicant to the Minister, and must wait until after the extradition judge has issued a committal order.
B. The Decision in United States of America v. Dynar
[35] The issue of disclosure in the context of an extradition hearing was first considered by the Supreme Court of Canada in United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462. The fugitive argued that he was entitled to a significant level of disclosure in extradition proceedings so that he could make full answer and defence in accordance with his constitutional rights under s. 7 of the Charter. The Supreme Court held, however, that Canadian domestic disclosure requirements could not simply be transplanted into extradition proceedings. Indeed, the Court recognized only a limited disclosure requirement in extradition hearings due to the limited statutory function of the extradition hearing judge. More specifically, in a joint judgment by Cory and Iacobucci JJ., the Court drew the following conclusions on this issue, at para. 128-133:
Even though the extradition hearing must be conducted in accordance with the principles of fundamental justice, this does not automatically entitle the fugitive to the highest possible level of disclosure. The principles of fundamental justice guaranteed under s. 7 of the Charter vary according to the context of the proceedings in which they are raised. It is clear that there is no entitlement to the most favourable procedures imaginable. … For example, more attenuated levels of procedural safeguards have been held to be appropriate at immigration hearings than would apply in criminal trials. … The same approach is equally applicable to an extradition proceeding. While it was stated in Idziak v. Canada (Minister of Justice) … that the committal hearing in the extradition process is “clearly judicial in its nature and warrants the application of the full panoply of procedural safeguards,” it was held that the extent and nature of procedural protection guaranteed by s. 7 of the Charter in an extradition proceeding will depend on the context in which it is claimed.
It follows that it is neither necessary nor appropriate to simply transplant into the extradition process all the disclosure requirements referred to in Stinchcombe … Those concepts apply to domestic criminal proceedings, where onerous duties are properly imposed on the Crown to disclose to the defence all relevant material in its possession or control. This is a function of an accused's right to full answer and defence in a Canadian trial. However, the extradition proceeding is governed by treaty and by statute. The role of the extradition judge is limited and the level of procedural safeguards required, including disclosure, must be considered within this framework.
Procedures at the extradition hearing are of necessity less complex and extensive than those in domestic preliminary inquiries or trials. Earlier decisions have wisely avoided imposing procedural requirements on the committal hearing that would render it very difficult for Canada to honour its international obligations. Thus, in Mellino … reservations were expressed about procedures that would permit an extradition hearing to become the forum for lengthy examinations of the reasons for delay in either seeking or undertaking extradition proceedings. La Forest J., for the majority, held that this would be “wholly out of keeping with extradition proceedings”.
The statutory powers of an extradition judge are limited. The hearing judge may receive sworn evidence offered to show the truth of the charge or conviction (s. 14), receive evidence to show that the particular crime is not an extradition crime (s. 15), and take into account sworn, duly authenticated depositions or statements taken in a foreign state (s. 16). The obligation on the Requesting State is simply to establish a prima facie case for the surrender of the fugitive and it is not required to go further than this. The committal hearing is neither intended nor designed to provide the discovery function of a domestic preliminary inquiry. … Specifically, disclosure of the relationship between United States and Canadian authorities in an investigation is not a requirement imposed on the Requesting State under either the Act or the treaty.
Any requirement for disclosure that is read into the Act as a matter of fundamental justice under s. 17 of the Charter will therefore necessarily be constrained by the limited function of the extradition judge under the Act, and by the need to avoid imposing Canadian notions of procedural fairness on foreign authorities.
[citations omitted – emphasis added]
C. The Decision in Germany v. Schrieber
[36] The same issue was considered in Germany v. Schreiber. Watt J. began his analysis of this issue by observing, at para. 79-80, that there was no specific provision in the Extradition Act or the governing treaty that required the type of disclosure to a fugitive in extradition proceedings that could be expected in domestic criminal proceedings under R. v. Stinchcombe (1991), 1991 CanLII 45 (SCC), 68 C.C.C. (3d) 1 (S.C.C.). Watt J. suggested that this absence was of some significance as the authority of an extradition hearing judge was “entirely statute-based and the Charter lacks the same sweep it has in domestic proceedings.”
[37] After carefully reviewing many of the authorities on this issue, Watt J. concluded, at para. 85-86, that they “yield a common result,” namely, that an extradition hearing judge has a “modest function to perform” and the boundaries of the extradition hearing “are marked out by the enabling statute and applicable treaty” and that neither grants the extradition judge the same kind of authority the judge has “over prosecutorial disclosure decisions in domestic trial proceedings.” Moreover, Watt J. observed that the Charter jurisdiction that is conferred to an extradition judge “is firmly tethered to the functions that the superior court judge is empowered to perform under the Act.” Watt J. concluded that the disclosure sought was beyond his authority to provide.
D. The Decision in United States of America v. Kwok
[38] Perhaps the most important decision in this area of the law is the Supreme Court of Canada decision in United States of America v. Kwok. In that case the fugitive sought disclosure of materials throughout the process of his extradition with a view to establishing violations of his Charter rights. More specifically, the fugitive sought disclosure of: (1) the Canadian investigation into his alleged involvement in the narcotics trafficking; (2) discussions between the Canadian and American investigative authorities; and (3) discussions between Canadian and American prosecuting authorities regarding the decision to proceed with the prosecution in the United States. The fugitive argued that he was entitled to disclosure of such relevant information at the extradition hearing, and that the extradition judge erred in refusing to make that disclosure order.
[39] The Supreme Court of Canada unanimously held that the extradition judge had not erred in refusing to make the requested disclosure order. In reaching this conclusion, Arbour J., delivering the judgment of the Court, at para. 98-110, observed that, unlike a criminal trial, extradition proceedings are “not concerned with issues of guilt or innocence,” and are more “akin to preliminary inquiries.” Arbour J. quoted a passage from United States v. Dynar, at para. 132-133, noting that extradition hearings are “neither intended nor designed to provide the discovery function” of a preliminary inquiry, and that any disclosure requirement must be “constrained by the limited function of the extradition judge” and “the need to avoid imposing Canadian notions of procedural fairness on foreign authorities.” More particularly, Arbour J. stated, at para. 100:
The extradition judge may only order the production of materials relevant to the issues properly raised at the committal stage of the process, subject to his or her discretion to expand the scope of that hearing to allow the parties to establish the factual basis for a subsequent Charter challenge, when it is expedient to do so, including, obviously, when there is at least an air of reality to the Charter claims … [citations omitted]. Requests for disclosure of materials related to issues which properly belong to the executive phase of extradition, and to the judicial review thereof, have no independent relevance before the extradition judge and are subsumed in his or her discretion to hear evidence related to such issues.
[emphasis added]
[40] In concluding that the fugitive had been given adequate disclosure throughout the extradition process, Arbour J. also observed, at para. 102, that the potential breach of the Charter that was being advanced by the fugitive was really only relevant at the “surrender stage of the process.” While not wishing to preclude altogether the exercise of a residual discretion by an extradition judge to hear evidence and “order disclosure accordingly,” Arbour J. commented that such discretion would “only be exercised for reasons of convenience, in an effort to expedite further the full disposition of the issues,” and there was no need to resort to it in that case.
[41] Importantly, Arbour J. also observed, at para. 104-107, that the Minister had a “duty of fairness to ensure that the fugitive has adequate disclosure” and a “reasonable opportunity” to state his or her case in relation to the question of whether or not a surrender order should issue, and the Minister’s decision as to the fugitive’s “entitlement to disclosure at the surrender stage” is subject to judicial review to enforce those Charter rights. See also: Whitley v. United States of America (C.A.) at p. 112.
E. The Decision in United States of America v. Cobb
[42] In United States of America v. Cobb, released concurrently with United States of America v. Kwok, Arbour J., again delivering the judgment of the unanimous court, at para. 22-23, confirmed: (1) that the Charter jurisdiction of the extradition court had to be assessed in light of the court’s “limited function” under the Extradition Act, which “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;” and (2) that the limited Charter jurisdiction of an extradition hearing judge extended only to Charter issues related to the “initial phase of the extradition process” – the committal stage. In the factual circumstances of that case, however, the court concluded that the impugned conduct of the extradition partner, which amounted to a breach of the principles of fundamental justice in violation of s. 7 of the Charter, was “directly and inextricably tied to the committal hearing.” Accordingly, the extradition judge had the jurisdiction to “control the integrity of the proceedings” and stay the proceedings as an abuse of process. See also: United States of America v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616.
F. The More Recent Disclosure Cases
[43] In United States of America v. Go, 2008 CanLII 38267 (ON SC), [2008] O.J. No. 3012 (S.C.J.) Clark J. dealt with a disclosure request by a fugitive, in the context of an extradition hearing, for forensic evidence (ie. DNA and palm print evidence) in the possession of the extradition partner. Accepting that the United States extradition partner was effectively a party to the Canadian extradition proceedings, Clark J., at para. 15-16, still concluded that he had no jurisdiction to order the American authorities to produce these materials to the fugitive. In reaching this conclusion, Clark J. relied upon the decision in R. v. Lore (1997), 1997 CanLII 10604 (QC CA), 116 C.C.C. (3d) 255 (Que. C.A.), where Fish J.A., as he then was, stated, at para. 40:
Accordingly, even assuming existence of the materials for which an order is sought, I see no basis upon which this Court can require the prosecution to remit what it neither has nor controls. And surely the Court has no jurisdiction to order anyone in the United States to disclose anything at all to the R.C.M.P., to the Crown or to the appellant directly.
[44] In the result, Clark J. concluded that he possessed “no jurisdiction to order American authorities to take any positive step.” See also: Re Stuckey, [2005] B.C.J. No. 699, (S.C.) at para. 36; United States of America v. Beker, [2009] O.J. No. 954 (S.C.J.) at para. 8-11; United States of America v. Shulman.
[45] Finally, earlier this year in United States of America v. Sindhu (unreported, May 23, 2012, Ont.S.C.J.) Flynn J. dealt with an application by the fugitive for disclosure in connection with his upcoming extradition hearing in relation to alleged drug importing charges in the United States. More particularly, the fugitive sought sealed “due diligence” documents in relation to these charges, including all communications between the United States and Canada as to their efforts to locate the fugitive. The fugitive argued that these documents, sealed in a Buffalo courthouse, were necessary to support a Charter application to be made to the extradition hearing judge alleging an abuse of process on the part of the American authorities. In dismissing this disclosure application, Flynn J. agreed with the Crown that he had “no jurisdiction to order the production of [disclosure] from the American courts.” More specifically, Flynn J. agreed with the decision of Clark J. in United States of America v. Go, that he did not have “jurisdiction to order the Attorney General of Canada to produce material that it does not control or possess.” Further, Flynn J. noted that there were other routes to the disclosure of this information, namely: (1) the fugitive could bring an application before the American court in possession of the sealed “due diligence” file to have the file unsealed and disclosed; and/or (2) raise the issue of the disclosure of this information in his submissions to the Minister.
G. Disclosure Issues on Appeal Following a Surrender Order
The Ontario Court of Appeal Decision in R. v. Larosa
[46] All of the “disclosure” authorities discussed above deal with the issue of disclosure in the context of the propriety of an extradition hearing judge ordering disclosure to the fugitive at that stage of the extradition process. While some of the authorities, most notably United States of America v. Kwok, helpfully discuss the possibility of such disclosure applications being made to the Minister during the “surrender order” phase of the process, this does not change the factual context of the authorities. All of these cases remain decisions about the propriety of disclosure being ordered at an extradition hearing.
[47] There is one authority that considered the “production/disclosure” issue from a different perspective. The important decision of the Court of Appeal for Ontario in R. v. Larosa deals with this issue from a different factual perspective, namely, the prospect of court ordered production/disclosure after the extradition judge has issued a committal order and the Minister has issued a surrender order. The applicant relies heavily upon this decision in support of his position, so it must be carefully examined and its true import understood.
[48] In R. v. Larosa the accused was charged, both in Canada and the United States, with drug offences flowing from his alleged participation in a massive cocaine distribution scheme. While the criminal proceedings commenced in Ontario, the United States sought the extradition of the accused. The treaty between the two countries prevented the prosecution of the accused for the same offences in both countries. Ultimately, the Crown agreed that the United States was the more appropriate forum for the prosecution, and the Crown stayed the proceedings in Ontario. This cleared the way for the extradition of the accused to the United States. The accused brought a motion to re-instate the charges in Ontario, but that application was dismissed. A defence motion to stay the extradition proceedings was also dismissed, and a committal order was issued. Subsequently, the accused sought disclosure of certain information from the Minister, but that request was declined. The Minister then issued a surrender order. The defence brought a motion challenging the surrender order on the basis that it was not made in a timely way, but that motion was dismissed.
[49] The accused launched appeals against all of these adverse decisions. Further, the accused brought a motion, pursuant to s. 683 of the Criminal Code, for the production of documents and compelling certain testimony. In the judgment in R. v. Larosa, Doherty J.A., on behalf of the unanimous court, dealt with: (1) the appeal against the decision refusing to re-instate the criminal charges in Ontario; (2) the appeal against the committal order at the extradition hearing; and (3) the motion for production. In relation to the motion for production Doherty J.A. noted, at para. 7, that the Minister had “declined to make certain disclosure requested by the appellant,” and that this part of the appeal would “turn on whether the Minister should have made that disclosure” and whether the Court of Appeal “should order that disclosure and consider that material.” After carefully considering and dismissing both appeals, at para. 31-68, Doherty J.A. turned to the merits of the production/disclosure motion.
[50] First, Doherty J.A. suggested, at para. 69, that this production/disclosure motion was only relevant to the appellant’s abuse of process and Charter claims that were appropriately advanced only in connection with the appeal against the committal order made at the extradition hearing and made in the judicial review application challenging the Minister’s surrender order. Next, Doherty J.A. outlined, at para. 70-74, the jurisdictional power of the court to receive evidence in relation to both kinds of appellate proceedings.
[51] Doherty J.A. then made the following comments, at para. 74-76:
This motion is one step removed from a request that this court receive evidence. The appellant is looking for evidence and he seeks the court’s assistance in that search. The court’s power under s. 683 of the Criminal Code to provide that assistance in an appropriate case is not questioned. The appellant must, however, do more than simply assert that the documents requested and the testimony sought will assist in determining issues raised on the appeal and the application for judicial review. “Fishing” expeditions are not tolerated in any judicial proceeding, particularly one which is intended to provide a simple and expeditious means of responding to Canada’s international obligations. Extradition proceedings cannot be allowed to become de facto royal commissions. It must also be acknowledged, however, that an appellant who alleges an abuse of process or a failure by the Minister to adequately consider certain issues may find it difficult to obtain the evidence necessary to support that charge. Much of the relevant information will be in the possession of the state against whom the allegations of misconduct are made. The appellant may well not have access to that information without the assistance of the court and cannot be expected to describe with precision the contents of documents he or she has never had the opportunity to examine. Requests for production will often lack some particularity.
The jurisdiction of this court to receive evidence on extradition appeals and judicial reviews from the Minister’s surrender order is largely undeveloped. I think it is best to proceed cautiously in formulating the approach that this court should take when an appellant seeks production of documents and compelled testimony in aid of this court’s original jurisdiction to receive evidence in extradition matters. The approach may vary depending on whether the appeal is from the committal order or the surrender order and it may also vary depending on the nature of the issues raised. The analysis which follows is directed at motions for production or the compelling of testimony that arise out of alleged state misconduct resulting in a breach of an appellant’s s. 7 rights and/or an abuse of process. These issues may arise at either the committal or the surrender phase of the extradition process.
In my view, before ordering the production of documents and compelling testimony in support of allegations of state misconduct, this court should be satisfied that the following three criteria have been met by the applicant:
• the allegations must be capable of supporting the remedy sought;
• there must be an air of reality to the allegations; and
• it must be likely that the documents sought and the testimony sought would be relevant to the allegations.
[52] The appellant contends that, in these passages from R. v. Larosa, the Court of Appeal was effectively creating a disclosure standard that should be applied by extradition judges in any case where the fugitive seeks disclosure, in the context of an extradition hearing, of information that may support their contention that the proceedings are an abuse of process or otherwise a violation of s. 7 of the Charter of Rights. Indeed, the applicant argues that, since he meets this three-part disclosure standard in the circumstances of this case, he is entitled to the disclosure order he seeks. I disagree with this interpretation of R. v. Larosa.
[53] Viewed in its proper factual context, it is apparent that, in R. v. Larosa, the Court of Appeal sought to articulate a three-part test for ordering production/disclosure where the fugitive has already had an extradition hearing and a surrender order has already been issued by the Minister, and the fugitive, on appeal and/or judicial review of those committal and surrender orders, contends that he or she has been wrongly denied the necessary disclosure to properly advance their abuse of process and/or Charter of Rights arguments. It is in that factual context, at the conclusion of the extradition process, on appeal and/or judicial review, that this three-part standard is to be applied.
[54] Once the extradition process has been completed, and the committal and surrender orders already issued, and an earlier disclosure request by the fugitive to the Minister has been denied, there must be some legal standard for the Court of Appeal to apply to determine whether or not the fugitive, on an appeal and/or judicial review application, is entitled to the disclosure/production that has earlier been refused by the Minister. It is for that particular context that Doherty J.A. articulated the three-part standard outlined at para. 76 of R. v. Larosa.
[55] In my view, however, in these passages in R. v. Larosa, Doherty J.A. was not purporting to reverse the many authorities holding that, in the absence of some exceptional reason, extradition judges should not pre-emptively intervene in a sphere of responsibility statutorily allocated to the Minister (i.e. double jeopardy issues). Nor was Doherty J.A. seeking to pass to extradition judges the recognized responsibility of the Minister, as outlined in United States of America v. Kwok, at para. 104-107, to ensure that a fugitive has adequate disclosure in relation to such issues.
[56] Accordingly, given that, in the present case, the applicant has not yet had an extradition hearing, and the Minister has never yet had the opportunity to consider a potential request for disclosure from the applicant, the three-part production/disclosure standard announced in R. v. Larosa has no application.
V
Analysis
[57] Having reviewed these various authorities, many of which are binding on me, I turn to the circumstances of the present case to determine whether or not I can or should order the disclosure now sought by the applicant.
[58] I begin from the foundation premise that, generally speaking, in the absence of some exceptional circumstance, an extradition judge ought not prematurely intervene and pre-empt a decision that Parliament has dictated, by its enactment of the Extradition Act, is in the Minister’s proper sphere of responsibility.
[59] According to ss. 44(1)(a) and 47(a) of the Extradition Act, the Minister is obliged to consider, in determining whether or not to issue a surrender order with respect to a fugitive, whether such an order would be “unjust or oppressive” expressly having regard to whether the fugitive would be entitled, if tried in Canada, to be “discharged under the laws of Canada because of a previous acquittal or conviction.” In other words, the Minister must carefully consider any potential “double jeopardy” issues. Under s. 43(1) of the Extradition Act, the applicant would be entitled, in making submissions to the Minister, to advance his “double jeopardy” argument.
[60] As Arbour J. observed in United States of America v. Kwok, at para. 104-107, the Minister, by virtue of his duty of fairness, is obliged to ensure that a fugitive has adequate disclosure and a reasonable opportunity to advance his or her position in relation to whether or not a surrender order should issue.
[61] In these circumstances, the applicant is entitled to seek disclosure from the Minister regarding the information and materials that he seeks from the court in this disclosure application. If and when a decision is made by the extradition judge that there should be a committal order in this case, the applicant would be entitled to apply to the Minister to secure the disclosure that he now seeks.
[62] Practically speaking, it makes more sense for the applicant to pursue his disclosure request by means of an application to the Minister. An extradition judge has no jurisdiction to make an extra-jurisdictional order demanding that the prosecutorial authorities in the United States provide this disclosure to the applicant. In this regard it is important to recall that much of the disclosure sought by the applicant relates to communications between Jordanian and American prosecutorial authorities. Accordingly, any court ordered disclosure would require not only information from the United States, but also information originating from Jordan. It is not difficult to imagine the international difficulties that might be caused by the issuance of such an order. The Minister, however, is in a position, if so advised, to pursue the potential disclosure of this information and materials through diplomatic and political channels with both Jordan and the United States. Indeed, the Minister may well have greater practical success securing the disclosure sought by the applicant through these channels than any court disclosure order, especially given the territorial limits on the enforcement of any such order.
[63] In these circumstances it would be premature and presumptuous for me to now make a disclosure order when the Minister has not yet even been asked to consider the issue. Indeed, it would entirely pre-empt the Minister’s consideration of the issue. In my view there is simply no justification for such a pre-emptive judicial step at this early stage of the extradition process in the circumstances of this case.
[64] There is absolutely no basis to believe that the Minister will not properly and promptly fulfill all of his obligations under the Extradition Act in the event that a committal order is made. Indeed, I presume that, if the applicant eventually seeks this disclosure from the Minister, and if the applicant is lawfully entitled to the disclosure, the Minister will take the necessary steps to try to provide it to the applicant.
[65] Of course, any disclosure decision made by the Minister in relation to a surrender order against the applicant could be subject to an application for judicial review to the Court of Appeal.
[66] Moreover, there is no immediate need for the disclosure sought by the applicant. Certainly no suggestion has been made by the applicant that the timing of this requested disclosure is an important issue. The applicant has not suggested that his “double jeopardy” argument can only properly be developed and advanced at the extradition hearing. Accordingly, there is no justification in the factual circumstances of this case that would warrant an abandonment of the more cautious approach, fully endorsed by the authorities, that it is usually appropriate to permit the executive to fulfill its statutorily assigned functions under the Extradition Act without needless judicial interference.
[67] There are simply no circumstances in this case that would suggest that this disclosure request by the applicant properly falls into that exceptional category of case where, without immediate disclosure, the applicant would be denied a fair extradition hearing, or that the integrity of the extradition court would be challenged or in any way tainted, by virtue of a violation of s. 7 of the Charter. This is not a case anything like United States of America v. Khadr.
[68] In the final analysis, I see no justifiable reason in the circumstances of the present case to depart from the great weight of judicial authority that holds that disclosure applications like the present one are premature at this stage of the extradition process, and should, instead, be made to the Minister in the event that a committal order is the result of the extradition hearing.
VI
Conclusion
[69] Accordingly, the application must be dismissed. It is dismissed, however, without prejudice to it being renewed before the Minister in the event that a committal order is made at extradition hearing. An order shall issue according.
Kenneth L. Campbell J.
DATE: October 22, 2012
COURT FILE NO.: E-11-9/245
DATE: 20121022
ONTARIO
SUPERIOR COURT OF JUSTICE
THE ATTORNEY GENERAL OF CANADA (ON BEHALF OF THE UNITED STATES OF AMERICA)
- and -
JERIES YACOB QUMSYEH
REASONS FOR JUDGMENT
Kenneth L. Campbell J.
Released: October 22, 2012