The Attorney General of Canada on behalf of the United States of America v. Nguyen

[Indexed as: United States of America v. Nguyen]

Ontario Reports

Ontario Superior Court of Justice,

M.G. Quigley J.

July 19, 2013

116 O.R. (3d) 446 | 2013 ONSC 4842

Case Summary

Criminal law — Extradition — Disclosure — U.S. seeking applicant's extradition to face money-laundering charges — Applicant applying at committal stage for disclosure by Attorney General of U.S. indictment — Application granted — Disclosure of indictment at committal stage not prohibited by applicable jurisprudence — Applicant seeking to know extent of her jeopardy so that she could make meaningful choices whether to consent to committal or surrender or waive extradition — Applicant acknowledging that indictment could not be used as evidentiary tool to fight committal — Failure to disclose indictment violating applicant's rights under s. 7 of Charter — Canadian Charter of Rights and Freedoms, s. 7. [page447]

The United States sought the applicant's extradition to face money-laundering charges. The applicant brought an application at the committal stage for an order requiring the Attorney General to disclose the U.S. indictment. The Attorney General had the indictment in his possession and did not object to disclosing it at the surrender stage, but argued that at the committal phase of the extradition process, a person sought is only entitled to evidence that will be tendered in support of committal.

Held, the application should be granted.

While the applicable jurisprudence did not establish that disclosure of the U.S. indictment at the committal stage was required, it did not prohibit such disclosure. The applicant acknowledged that the indictment could not be used as an evidentiary tool to challenge committal. Her purpose in seeking disclosure was to know the extent of her jeopardy so that she could make meaningful choices about whether to consent to committal or surrender or waive extradition. Given that the indictment could not and would not be used at the committal phase, no unintended procedural mischief would result from giving the applicant access to the indictment. The applicant had the right to know the case against her. Failure to disclose the indictment at this time would violate her rights under s. 7 of the Canadian Charter of Rights and Freedoms.

Cases referred to

Argentina (Republic) v. Mellino, 1987 49 (SCC), [1987] 1 S.C.R. 536, [1987] S.C.J. No. 25, 40 D.L.R. (4th) 74, 76 N.R. 51, [1987] 4 W.W.R. 289, 52 Alta. L.R. (2d) 1, 80 A.R. 1, 33 C.C.C. (3d) 334, 28 C.R.R. 262, 2 W.C.B. (2d) 300; Canada (Justice) v. Fischbacher, [2009] 3 S.C.R. 170, [2009] S.C.J. No. 46, 2009 SCC 46, 198 C.R.R. (2d) 168, 248 C.C.C. (3d) 419, EYB 2009-164941, J.E. 2009-1880, 394 N.R. 139, 69 C.R. (6th) 21, 255 O.A.C. 288, 312 D.L.R. (4th) 1; R. v. Larosa, 2002 45027 (ON CA), [2002] O.J. No. 3219, 163 O.A.C. 108, 166 C.C.C. (3d) 449, 98 C.R.R. (2d) 210, 55 W.C.B. (2d) 52 (C.A.); United States of America v. Dynar (1997), 1997 359 (SCC), 33 O.R. (3d) 478, [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, 147 D.L.R. (4th) 399, 213 N.R. 321, J.E. 97-1400, 101 O.A.C. 321, 115 C.C.C. (3d) 481, 8 C.R. (5th) 79, 44 C.R.R. (2d) 189, 35 W.C.B. (2d) 8; United States of America v. Kwok, [2001] 1 S.C.R. 532, [2001] S.C.J. No. 19, 2001 SCC 18, 197 D.L.R. (4th) 1, 267 N.R. 310, J.E. 2001-782, 145 O.A.C. 36, 152 C.C.C. (3d) 225, 41 C.R. (5th) 44, 81 C.R.R. (2d) 189, 49 W.C.B. (2d) 154, REJB 2001-23416

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 7

Criminal Code, R.S.C. 1985, c. C-46, ss. 462.31 [as am.], 465 [as am.]

Extradition Act, S.C. 1999, c. 18 [as am.], ss. 3(1)(a), (b), 15, 24, 29, 58(b), 70-72

APPLICATION for a disclosure order.

Adrienne Rice, for applicant/requesting state.

Frank Addario and Megan Savard, for respondent/ person sought for extradition.

M.G. QUIGLEY J.: —

Introduction

[1] The United States asks Canada to extradite the applicant, Phuong Kim Nguyen, to face money-laundering charges for her [page448] involvement in an international drug-trafficking and money-laundering operation. That conduct is alleged to have taken place over nine years ago.

[2] United States authorities certified their record of the case ("ROC") against Phuong Kim Nguyen on June 5, 2012. The Minister of Justice and Attorney General of Canada issued the authority to proceed ("ATP") to extradite her on June 11, 2012. The ATP identifies the Canadian offences that correspond to the conduct described in the ROC as conspiracy to launder proceeds of crime contrary to ss. 462.31 and 465 of the Criminal Code, R.S.C. 1985, c. C-46.

[3] The RCMP arrested Ms. Nguyen on January 17, 2013 pursuant to an Extradition Act, S.C. 1999, c. 18 (the "Act") warrant issued by Justice Pattillo. Ms. Nguyen then retained counsel to represent her on the extradition proceedings that is scheduled for October 3 and 4, 2013.

[4] On this application, Ms. Nguyen seeks an order requiring that the Attorney General of Canada provide her with the U.S. indictment that charges her with those criminal offences. Although the minister has that indictment in his possession, to date the minister has refused that request and the Attorney General has vigorously sought to defeat this application.

[5] I accept most of the Attorney General's submissions about the limited scope of judicial action under the Extradition Act in this second "committal phase" of the extradition process. Nevertheless, I can find no conflict with that jurisprudence or any harm that would result from granting the applicant her request, given the limited use she proposes to make of the U.S. indictment and the limits on that use that are imposed by the case law.

[6] Moreover, I accept Ms. Nguyen's submissions that denying her access to the U.S. indictment could frustrate the will of Parliament in enacting the provisions in ss. 70-72 of the Extradition Act.

[7] For these reasons, as elaborated upon in the paragraphs that follow, I find that the applicant is entitled to the limited disclosure she seeks. The application is granted subject to the terms set out further in these reasons.

Summary of Factual Background

[8] In 2003 and 2004, the United States Drug Enforcement Agency ("DEA"), the Federal Bureau of Investigation ("FBI") and the RCMP in Canada investigated an international money-laundering operation. They identified a number of suspects, including certain alleged "ringleaders", Hoang Nguyen from [page449] Atlanta, Georgia, and Mai Le from Ottawa. As part of their investigation, the U.S. authorities obtained intercepts of Hoang Nguyen's phone calls. On February 22, 2005, the U.S. Attorney charged 14 people with money-laundering and drug-trafficking offences, including Mai Le and Hoang Nguyen.

[9] Hoang Nguyen went to trial, and he was convicted of money laundering and sentenced to 19 years in prison.

[10] Following negotiations with the U.S. Attorney's office, Mai Le, however, opted to waive extradition from Canada as part of a negotiated plea. In exchange for the withdrawal of six other charges, she pleaded guilty in the United States to three counts of distribution of MDMA, conspiracy to launder funds and continuing criminal enterprise. She was sentenced to 15 years in prison.

[11] While it was unclear whether Mai Le's co-operation with the extradition process contributed to the reduction in her U.S. sentence, the newspaper reports and advice from U.S. counsel reproduced in the applicant's factum suggest that, at least some U.S. jurisdictions, the U.S. Attorney will offer a reduction in sentence in exchange for co-operating with Canadian extradition.

[12] The ROC shows that the activity alleged against Mai Le and Hoang Nguyen was serious and involved sophisticated criminality. The applicant was not identified as part of that activity at that time; however, the U.S. authorities now believe that the applicant is Hoang Nguyen's sister and now allege that she was a participant in those events.

[13] The U.S. authorities first started to investigate Ms. Nguyen in March 2009, when an FBI agent investigating a Houston money-laundering operation became aware of a person identified in the ROC as "CW-1", a confidential witness. Based primarily on information provided by CW-1 and another confidential witness, a Charlotte, N.C., marijuana distributor ("CW-2"), U.S. authorities now believe that the applicant helped Hoang Nguyen organize the delivery of $414,870 in cash to Georgia in March 2004 by giving him advice and directions over the telephone.

[14] Counsel for the applicant claims that the ROC merely includes vague statements by CW-1 and CW-2 suggesting that Ms. Nguyen was heavily involved in the conspiracy, but that her alleged role in the operation is not clear. In particular, CW-1 stated that he or she delivered hundreds of thousands of dollars on behalf of the applicant and CW-2 stated that the applicant [page450] was a respected member of the Vietnamese drug and money-laundering organization. Further and more detailed factual allegations are set out in the ROC and in the ATP which treats the conduct as conspiracy to launder proceeds of crime contrary to ss. 462.31 and 465 of the Criminal Code.

Issues and Analysis

[15] There is a simple but novel issue at stake on this application: at what point in the extradition process, if at all, is the person sought entitled to see the actual evidence and charges on which the requesting state proposes to prosecute them, as set out in the indictment prepared by that state?

[16] In Canada, the extradition process has three main stages. First, the minister issues an ATP which is presumed to meet the applicable treaty requirements. At the second, committal phase, a judge decides whether the requesting state has put forward enough evidence in the ROC to warrant the extradition of the accused. At the third, surrender phase, the minister determines whether the individual should be surrendered for prosecution by the foreign state.

[17] Ms. Nguyen seeks an order requiring that the Attorney General of Canada, on behalf of the United States of America, disclose to her the U.S. indictment that charges her with those criminal offences at the committal phase of the extradition process. She claims that the U.S. indictment will show the full factual underpinnings for the extradition request and the actual jeopardy she faces in the United States. She has been advised by a U.S. attorney that the jeopardy she potentially faces in the United States could range from a fine to imprisonment for life. Ms. Nguyen requests production of the U.S. indictment at this stage for the purpose of allowing her to make meaningful choices about the manner in which to conduct her defence and, most importantly, whether to exercise her rights under the Extradition Act to consent to committal or surrender or to waive extradition.

[18] On April 7, 2013, Ms. Nguyen's counsel wrote to counsel for the Minister of Justice requesting a copy of the United States indictment, but the minister responded on April 9, 2013 refusing [page451] that request. The minister's counsel takes the position that "[a]t the judicial phase [committal phase] of the extradition process a person sought is only entitled to evidence that will be tendered in support of committal".

[19] It is important to note here that the Attorney General (i) does have the U.S. indictment in its possession in Canada; (ii) does concede the importance of providing the U.S. indictment to Ms. Nguyen; and (iii) agrees to do so once the committal phase is over, at the third and final stage of the proceeding, if she is committed. The debate before me is one of timing, as the minister opposes this application on the basis that the disclosure is not required in the second committal phase as it will be produced later at the surrender phase if the minister decides to surrender Ms. Nguyen to the U.S. As such, the Attorney General argues that the applicant's request for disclosure of the U.S. indictment is premature and not required.

[20] The Attorney General says that extradition is meant to be a simple and expeditious process by which Canada returns persons who are alleged to have committed crimes in other states to those nations. It is a political process at its core, where primary responsibility rests with the executive branch of government in issuing the ATP in the first phase and in deciding whether to surrender the individual in the third phase.

[21] My primary responsibility as the extradition judge is to hold a hearing at the second committal phase to determine whether the evidence presented in the ROC would support a committal on the Canadian equivalent of the offences described in the ATP. Apart from this limited judicial role, all remaining functions in the extradition process are the prerogative of the minister. It is the minister alone who decides whether the person ought to be surrendered to the other state and an extradition proceeding is not a trial: United States of America v. Dynar.

[22] A person sought for extradition is ordinarily not entitled to disclosure from the requesting state beyond the production of the evidence that it relies upon to establish its prima facie case. In U.S.A. v. Kwok, the Supreme Court, however, recognized that further disclosure was possible under very limited circumstances. The court held that further disclosure could be ordered to establish a factual basis for a Charter challenge when it is expedient to do so and when there is at least an air of reality to the Charter claims being advanced.

[23] Against this background, it is not surprising that the jurisprudence has forcefully resisted requests for additional disclosure. Indeed, the controlling jurisprudence establishes that, absent a Charter challenge that has an air of reality to it, a judge during the committal phase of the extradition process is to determine the request of the foreign state solely on the basis of the conduct described and the evidence set out in the ROC. In this case, the U.S. does not rely on the U.S. indictment for the purposes of committal -- it relies only on the ROC. Ms. Nguyen, however, seeks disclosure of the U.S. indictment even though there is no Charter violation alleged.

[24] I agree with the Attorney General that the leading jurisprudence does establish that disclosure of the U.S. indictment is not required as part of this committal phase of the Canadian extradition process. But neither, I find, does the jurisprudence prohibit further disclosure at the committal phase.

[25] The Attorney General also focused on the principle of conduct-based "double criminality" as another reason why to delay release of the U.S. indictment until the surrender phase. The double criminality principle lies at the heart of our extradition law.

[26] As the court made plain in Fischbacher, if the minister decides to surrender the person sought in the third, surrender phase of the extradition process, his order is made under s. 58(b) of the Act.

[27] The court held that it would be inconsistent with the Act and with the extradition treaty if the minister was required to assess the parity between the elements of the Canadian offence and the elements of the foreign offence.

[28] Thus, it seems clear that it would not be open to this court to go beyond the conduct described in the ROC at this stage of the proceeding to permit the introduction of the U.S. indictment as a defence tool to challenge committal.

[29] Further, counsel for the person sought conceded in his reply arguments that the U.S. indictment cannot be used as an evidentiary tool to try to derail the committal process.

[30] Given that the U.S. indictment would not and could not be used at the committal phase, I cannot foresee any unintended procedural mischief that could result from permitting the person sought to have access to the U.S. indictment.

[31] Even though no specific Charter infringement is presently alleged, the applicant claims it would be unfair to prevent her at this time from seeing the U.S. indictment.

[32] There are procedures contemplated in the Extradition Act beyond those described above: ss. 70-72.

[33] The Act plainly contemplates that consenting to committal, surrender or waiving extradition are avenues potentially available to the person sought well before the surrender phase.

[34] On their face, these provisions appear intended to provide a means to expedite the extradition process.

[35] The Attorney General acknowledges the significance of the U.S. Indictment and has agreed to provide it to the applicant during the third, surrender stage.

[36] But it seems to me that this line of argument misses the point entirely.

[37] It makes no sense to suggest that the U.S. indictment is not important to this decision-making process.

[38] The case law effectively prohibits the applicant from referring to the facts set out in the U.S. indictment in an effort to undermine the conduct described in the ROC.

[39] The applicant has the right to know the case against her.

[40] Failure to produce that document at this time may prevent her from obtaining potential benefits in the U.S. prosecution against her from an early and informed exercise of those statutory rights.

[41] I conclude that it would frustrate Parliament's intent to expedite the extradition process to put persons sought in the position where they may not be able to make meaningful and informed decisions.

[42] I order that the Attorney General disclose the U.S. indictment to the applicant. The order is given on the understanding that it will be used to facilitate decision-making by the person sought under ss. 70-72 of the Act but will not be used to challenge committal.

Application granted.

Notes

1 Application record, Tab 2G.
2 Extradition Act, ss. 3, 15.
3 United States of America v. Kwok, 2001 SCC 18.
4 Krutules memorandum dated May 3, 2013.
5 Extradition Act, ss. 24, 29.
6 U.S.A. v. Kwok.
7 (1997), 1997 359 (SCC).
8 U.S.A. v. Dynar.
9 U.S.A. v. Kwok.
10 Ibid.; see also R. v. Larosa, 2002 45027 (ON CA).
11 Extradition Act, s. 3(1)(a), (b).
12 Ibid.
13 Canada (Justice) v. Fischbacher, 2009 SCC 46.
14 1987 49 (SCC).

End of Document