ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 584/10
DATE: 2012/12/17
IN THE MATTER OF an application by the Attorney General of Ontario on behalf of the United States of America for a Sending Order pursuant to s. 20 of the Mutual Legal Assistance in Criminal Matters Act ;
IN THE MATTER OF an application by Habon Gayad and Idris Nuradin for a remedy pursuant to s. 24(1) of the Charter ;
and
IN THE MATTER OF an application by the Attorney General of Canada to be removed as a party to these mutual legal assistance proceedings and striking certain relief requested.
BETWEEN:
THE ATTORNEY GENERAL OF ONTARIO Applicant (Respondent) – and – HABON GAYAD and IDRIS NURADIN Respondents (Applicants) – and – THE ATTORNEY GENERAL OF CANADA Applicant (Respondent)
Michelle Campbell and Shawn Porter, Counsel for The Attorney General of Ontario
Robin Parker, Counsel for Habon Gayad and Idris Nuradin
Elaine Krivel, Q.C. Counsel for The Attorney General of Canada
HEARD: November 13, 2012
A.J. O’MARRA J.:
[ 1 ] The Attorney General of Canada has applied for an order to be removed as a party and to strike certain Charter relief sought by Habon Gayad and Idris Nuradin in their application in response to a sending order application brought by the Attorney General of Ontario under s.20 of the Mutual Legal Assistance in Criminal Matters Act , R.S.C. 1985 c.30. The remedies sought by Habon Gayad and Idris Nuradin under s.24(1) of the Charter of Rights and Freedoms as against the Attorney General of Ontario and Attorney General of Canada is the following:
An order directing the police to return the property seized from the applicants’ apartment on August 7, 2009, held without lawful authority by the police since the applicants’ criminal charges were withdrawn by the Crown on June 17, 2011;
In the alternative, an order directing that the property be destroyed;
A declaration that the conduct of the Crown in delaying their Canadian criminal charges from August 7, 2009 to June 17, 2011 in order to determine the preferred venue for prosecution (Canada or the United States) was an abuse of process;
A declaration that the conduct of the Crown in attempting to force the applicants to have their extradition hearing without counsel was an abuse of process;
An order for the legal costs incurred by the applicants in extradition on the fraudulent record;
An order prohibiting the Minister of Justice from issuing another authority to proceed in relation to this case;
In the alternative to an order of prohibition of further proceedings against the applicants, an order that the Attorney General pay their legal costs in defending any such proceedings; and
The costs of this proceeding.
[ 2 ] The applicant/respondent, Attorney General of Canada requests, in addition to being removed as a party to these proceedings that paragraphs 4 to 7 in the relief requested by Gayad and Nuradin in their notice of application be struck.
Background to the Originating Application
[ 3 ] On August 7, 2009, the Toronto Police Service executed a search warrant at the apartment of Gayad and Nuradin and seized property, the subject of the application by the Attorney General of Ontario for a sending order. Gayad and Nuradin were charged with fraud that alleged fraudulent telemarketing activities from Canada to the United States. The seized property was subject to a detention order that authorized the Toronto Police Service to retain the property “until the completion of all proceedings”. The charges were withdrawn on June 16, 2011 by counsel for the Attorney General of Ontario. Counsel for Gayad and Nuradin was advised in advance the charges would be withdrawn to facilitate an application to extradite Gayad and Nuradin to the United States.
[ 4 ] On October 11, 2011, the United States Department of Justice made a mutual legal assistance treaty (MLAT) request through the International Assistance Group of the Department of Justice in Ottawa for Canada to send the evidence seized during the search of the applicants’ apartment to the United States. The evidence requested, the property seized during the execution of the search warrant, was still in the possession of the Toronto Police Service.
[ 5 ] On October 17, 2011, the Minister of Justice issued an Authority to Proceed commencing the extradition process against Gayad and Nuradin. The record of case received from the Assistant U.S. Attorney, as part of the extradition request, certified that the evidence seized from the apartment of Gayad and Nuradin on August 9, 2009, was “available for trial”. Gayad and Nuradin assert that the only evidence of identity is that of the seized documentation and property, which was not available for trial because it was still in the possession of the Toronto Police Service.
[ 6 ] On October 21, 2011 the Minister of Justice, pursuant to s.17(1) of the MLACM Act provided the Attorney General of Ontario as the “competent authority” under the Act the necessary documents to obtain the evidence gathering order under s.18 and to apply for a sending order under s.20 with respect to the evidence seized.
[ 7 ] On December 13, 2011, Gayad and Nuradin were arrested on the extradition request. They were released on bail December 14, 2011 and remanded to set a date for the hearing.
[ 8 ] Counsel for Gayad and Nuradin asserts that the American extradition request related to the same conduct that had been the subject of the Canadian charges withdrawn by counsel for the Attorney General of Ontario on June 16, 2011. Further, the evidence relied on by the United States in support of the extradition request was being held without lawful authority by the Toronto Police. It was being held in contravention of the August 13, 2009 order that allowed the Toronto Police Service to retain the property “until the completion of all proceedings”. The Attorney General of Canada was relying on the certification by the Assistant U.S. Attorney in the record of case that the evidence was “available for trial” in the United States to proceed with extradition.
[ 9 ] Gayad and Nuradin allege that during the time they were being remanded to set a date for the extradition hearing and in the process of trying to retain counsel, officers of the Toronto Police Service tried to obtain their consent to relinquish interest in the documents and property seized from their apartment. They allege officers told them the request for consent had nothing to do with the extradition process. They refused to consent until they had advice of counsel.
[ 10 ] On April 12, 2012, the Attorney General of Ontario brought a s.490 application for forfeiture of the property in order to send it to the United States to be used as evidence against them.
[ 11 ] Gayad and Nuradin made a number of remand appearances into June 2012 due to a denial of Legal Aid to permit them to retain counsel, and afterward in order to bring a Rowbotham Application for an order of the Court for payment of fees for counsel who was prepared to act.
[ 12 ] They allege that Counsel for the Attorney General of Canada learned through the materials filed for Gayad on the Rowbotham application that their defence to the extradition process was to be that the record of case had fraudulently stated the property seized from their home was available for trial in the U.S. Further. the police had “attempted to coerce the applicants to waive return of” the seized evidence, failing which the evidence became the subject of the s.490 forfeiture application brought Crown counsel of the Attorney General of Ontario.
[ 13 ] On June 15, 2012, the Minister of Justice issued a notification that the authority to proceed with the extradition of Gayad and Nuradin was withdrawn.
[ 14 ] On July 20, 2012, counsel for the Attorney General of Ontario advised counsel for Gayad and Nuradin that the s.490 forfeiture application was withdrawn and that the Attorney General of Ontario would proceed to obtain a gathering order for the seized property. The gathering order was granted ex parte on July 24, 2012 by Frank J. of the Superior Court.
[ 15 ] In the foregoing, the only proceeding extant at present is the application by the Attorney General of Ontario for the sending order for the evidence ordered to be gathered pursuant to s.20 of the Mutual Legal Assistance in Criminal Matters Act. The criminal charges have been withdrawn by the Attorney General of Ontario, and the extradition application has been withdrawn by the Attorney General of Canada.
Position of the Parties
[ 16 ] The position of the Attorney General of Canada is that it is not a party to the gathering and sending order process. Under Section 17(1) of the MLACM Act :
When the Minister ( of Justice ) approves a request of a state or entity to obtain, by means of an order of a judge, evidence regarding an offence, the Minister ( of Justice ) shall provide a competent authority with any documents or information necessary to apply for the order. (parenthesis added for clarity)
[ 17 ] “Competent authority” is defined in section 2 of the Act as follows:
“competent authority” means the Attorney General of Canada, the attorney general of a province or any person or authority with the responsibility in Canada for the investigation or prosecution of offences.
[ 18 ] In this instance, the Attorney General of Ontario is the “competent authority” responsible for prosecution of Criminal Code offences and as such has carriage and control of the matter. The Attorney General of Canada is not involved in the process, and as such is not a party.
[ 19 ] Under s.17 (2) the “competent authority” shall apply for an order for the gathering of evidence to a judge of the province “in which the competent authority believes” part or all of the evidence may be found.
[ 20 ] The only proceeding, in which the Attorney General of Canada was engaged, was the application under the Extradition Act , which was withdrawn.
[ 21 ] The MLACM Act and the Extradition Act deal with two separate proceedings. Counsel for the Attorney General of Canada contends that the Acts are complete codes with respect to the proceedings taken under them. Any remedy sought by Gayad and Nuradin against the Attorney General of Canada must be brought within the parameters of a proceeding under an Act in which it is a party. Gayad and Nuradin cannot create adjunct or ancillary proceedings in order to seek remedies against a party outside of the Acts simply by filing a notice of application. Gayad and Nuradin cannot obtain orders or remedies against the Attorney General of Canada, a non-party to the Sending Order Application brought under the MLAMC Act by the competent authority, in this instance, the Attorney General of Ontario.
[ 22 ] Counsel for Gayad and Nuradin contends the Federal Crown has incorrectly characterized the instant proceedings as proceedings commenced pursuant to the Mutual Legal Assistance and Criminal Matters Act , notwithstanding the style of cause set out in their Notice of Application. Counsel contends it is principally a s.24 (1) Charter application for relief from the frivolous, vexatious and continued pattern of abuse caused her clients by the respondents in both the aborted criminal and extradition proceedings.
[ 23 ] In material submitted on this matter, counsel for Gayad and Nuradin contends with respect of the Federal Crown:
The heart of the applicants’ claim – which must be taken as true on this preliminary motion to strike – is that the Federal Crown has, and continues to, breach their fundamental Charter Rights by pursuing their extradition in an abusive manner.
[ 24 ] The sending hearing presently before the Court is simply the latest incarnation of this abuse of prosecution. Further, this court as a court of competent jurisdiction must be available “to determine” whether a Charter infringement has occurred and if so to grant and enforce a “just and appropriate” remedy under s.24 (1) .
Analysis
[ 25 ] The Attorney General of Canada is not a party to the MLACM Act sending order application in this instance. The de facto competent authority is the Attorney General of Ontario. Once the gathering order is obtained from the court and the s. 19 (1) report of the designated person made, the competent authority applies under s. 20 (1) of the Act for an order to send the evidence to the requesting country, subject to terms and conditions considered desirable by the judge after representations.
[ 26 ] The general operation and discretion of the judge under section 20 is described in Re Mutual Legal Assistance in Criminal Matter s, 1999 3787 (ON CA) , [1999] O.J. No. 3292 (O.C.A.) by Doherty J.A. at paras. 39-40:
The discretion vested in a judge by s. 20(1) and s. 20(2) is framed broadly so that the judge may consider the specific issues raised in a particular application made for an order to send material to the foreign jurisdiction. Those issues will involve a consideration of a number of factors, including the nature of the material which the applicant seeks to have sent to the foreign jurisdiction and the representations made by the applicant or any other party appearing on the application for the sending order. For example, where a party with an interest in the material contends that it has no connection to the investigation of any crime within the foreign state's jurisdiction, the judge will consider that submission and any evidence relevant thereto in deciding what order, if any, to make under s. 20. Similarly, if an interested party contends that the s. 18 order was based on false or inaccurate information or offers additional information which is relevant to the basis upon which the gathering order was obtained, the s. 20 judge can hear evidence and any factual findings she makes can be factored into both her decision to make the order and her decision as to the terms, if any, to be included in the order. The factors to be considered by the s. 20 judge will depend on the circumstances of each application.
There are, however, limits on the discretion vested in the s. 20 judge. These limits flow from the nature of the judicial role in the process contemplated by the Act. In my view, a judge under s. 20 is not concerned with the advisability of assisting the foreign jurisdiction or whether the foreign jurisdiction will comply with any order the judge might make. Those matters must be addressed by the Minister of Justice.
[ 27 ] The competent authority as applicant and “any other party appearing on the sending order application, which in this instance would include Gayad and Nuradin, may make representations as to terms and conditions or whether an order should be made. When an order is made subject to terms prior to sending the evidence the Minister of Justice addresses the state executive concerns of being satisfied that the requesting state or entity will comply with any terms or conditions imposed in the sending order.
[ 28 ] The Attorney General of Ontario, as the competent authority and the Federal Crown in this instance have distinct roles in who obtains the sending order and who does what with it after it is made.
[ 29 ] In terms of the Extradition Act, I accept that it is a complete code with respect to its procedures and operation. In USA v. Kwork, 2001 SCC 18 () , [2001] 1 S.C.R. 532 at para. 27 Arbour J. noted:
Extradition is primarily a function of the executive branch of government and a product of international agreements between states. The extradition process in Canada is governed by the Extradition Act, which codifies into domestic law Canada’s international obligations to surrender fugitives who have committed crimes, or are alleged to have committed crimes in other jurisdictions. Section 13 of the Act sets out the manner in which extradition proceedings are to be conducted. It involves a two-stage process: committal and surrender. The first phase is judicial in nature while the second is essentially an executive phase
[ 30 ] When in the judicial phase the Act defines the role of the court in the conduct of its hearings, including Charter and appellate jurisdiction ( Sections 49 to 57 ). Sections 24 and 25 state as follows:
S. 24 (1) The judge shall, on receipt of an authority to proceed from the Attorney General, hold an extradition hearing.
(2) For the purposes of the hearing, the judge has, subject to this Act , the powers of a justice under Part XVIII of the Criminal Code , with any modifications that the circumstances require.
S. 25 For the purposes of the Constitution Act , 1982, a judge has, with respect to the functions that the judge is required to perform in applying this Act , the same competence that that judge possesses by virtue of being a Superior Court Judge.
[ 31 ] Gayad and Nuradin seek Charter relief from this court as against the applicant/ respondent, specifically a stay of future proceedings based on an extradition process that is no longer proceeding.
[ 32 ] In United States of America v. Cobb, 2001 SCC 19 () , [2001] 1 S.C.R. 587 Arbour J. noted at para. 26 that it was only as a result of the 1992 amendments to the Extradition Act, s.9 (3), now s. 25 that the expansion included the power to grant appropriate remedies for pertinent Charter breaches:
The extradition judge is therefore competent to grant Charter remedies, including a stay of proceedings, on the basis of a Charter violation but only insofar as the Charter breach pertains directly to the circumscribed issues relevant at the committal stage of the extradition process.
[ 33 ] The extradition process was discontinued when the Minister of Justice withdrew the Authority to Proceed pursuant to s. 23 (3) of the Extradition Act . Notwithstanding, the applicants seek either an order prohibiting the Minister of Justice from issuing another Authority to Proceed or, in the alternative, an order prohibiting any further proceedings against them. It amounts to a request by the applicants on a finding of violation of s.7 pertaining to a withdrawn Authority to Proceed for a proscriptive remedy in the absence of a proceeding.
[ 34 ] The Charter did not create courts of competent jurisdiction, but rather the Charter enlarged the powers of already competent courts. (See R. v. Metzler, 1989 68 (SCC) , [1989] 1 S.C.R. 1764) The Superior Court is a court of competent jurisdiction in extradition matters with respect to the functions required of the judge in applying the Act .
[ 35 ] Moreover, in my view, to accede to the relief requested would be to interfere with the executive function of the Minister of Justice in compliance with international treaty obligations and with the prosecutorial discretion of the Attorney General of Canada.
[ 36 ] With respect to the former, in McVey v. United States of America , 1992 48 (SCC) , [1992] 3 S.C.R. 475 at para. 53 La Forest J.
In essence, the treaty obligations are of a political character to be dealt with in the absence of statute by political authorities. However, as Laskin J. noted in Commonwealth of Puerto Rico v. Hernandez, 1973 184 (SCC) , [1975] 1 S.C.R. 228, at p. 245, the liberty of the individual has not been forgotten in these rather special proceedings. The treaties, sensitive to the liberty of the individual, contain provisions for their protection. Most important is the requirement that there be prima facie evidence that the act charged would constitute a crime in Canada. The specific matter, about which judges are most competent, is the task assigned to a judge by the Extradition Act . Other tasks, no doubt may be assigned to extradition judges, but one must find a statutory source, and the courts should not reach out to bring within their jurisdictional ambit matters that the Act has not assigned to them. Barring statutory provision, the task of dealing with international treaty obligations ifs for the political authorities, and is to be performed by the Ministers and departments in the course of fulfilling their appropriate mandates.
[ 37 ] With respect to the latter, in The Law Society of Alberta v. Krieger and the Minister of Justice and the Attorney General for Alberta , 2002 SCC 65 () , [2002] 3 S.C.R. 372 at para. 32 Iacobucci and Major JJ. stated:
The court’s acknowledgement of the Attorney General’s independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our constitution. Subject to the abuse of process doctrine, supervising one litigant’s decision-making process – rather than the conduct of litigants before the court – is beyond the legitimate reach of the court. In Re Hoem v. The Law Society of British Columbia (1985), 1985 447 (BC CA) , 20 C.C.C. (3 rd ) 239 (BCCA) Esson J.A. for the court observed at p.254, that:
The independence of the Attorney General, in deciding fairly who should be prosecuted, is also a hallmark of a free society. Just as the independence of the bar within its proper sphere must be respected, so must the independence of the Attorney General.
We agree with these comments. The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawing constitutional lines are necessary in areas subject to such grave potential conflict.
[ 38 ] The Extradition Act it not applicable to past or future proceedings. Where there is a distinct self-contained legislative regime, as in the Extradition Act , it would be up to the extradition judge within the context of an extradition hearing to consider the appropriate relief. This court should decline to do so in the absence of a proceeding under the Extradition Act for want of jurisdiction .
Ruling
[ 39 ] In the result, the application brought by the Attorney General of Canada to be removed as a party to the application brought by Gayad and Nuradin is granted. Further, relief cited in paragraphs 4 to 7, which pertain to the Attorney General of Canada are hereby struck.
A.J. O’Marra J.
Released: December 17, 2012
COURT FILE NO.: 584/10
DATE: 2012/12/17
ONTARIO SUPERIOR COURT OF JUSTICE
THE ATTORNEY GENERAL OF ONTARIO Applicant (Respondent) – and – HABON GAYAD and IDRIS NURADIN Respondents (Applicants) – and – THE ATTORNEY GENERAL OF CANADA Respondent
REASONS FOR JUDGMENT A.J. O’Marra J.
Released: December 17, 2012