ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR139000018000MO
DATE: 20131220
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Requesting State/Respondent
– and –
MICHAEL HUGH WILSON
Person Sought/Applicant
Faiyaz Amir Alibhai, for the Attorney General of Canada
Yoni Rahamin, for the Applicant
HEARD: December 12, 2013
HAINEY J.
Overview
[1] Mr. Wilson is wanted in the United States to face charges of fraud and money laundering.
[2] He is the subject of an extradition proceeding pursuant to section 29 of the Extradition Act. His extradition hearing is scheduled to proceed in this Court on February 7, 2014.
[3] Mr. Wilson applies for disclosure of certain material that he submits will form the basis of an application he intends to bring under the Canadian Charter of Rights and Freedoms alleging an abuse of process on the part of the Canadian government in relation to his extradition to the United States.
[4] He intends to argue that he was the subject of a deportation process in 2010 that was a disguised extradition proceeding designed to have him returned to the United States at the request of the authorities there.
[5] He maintains that this disguised extradition proceeding in 2010 was an abuse of process by the Canadian authorities. He submits that, as a result, the extradition proceeding that he currently faces should be stayed.
[6] He seeks disclosure of all communications from July 19, 2010 to July 26, 2010 between the authorities in the United States and Canada concerning Mr. Wilson’s return to the United States. He submits that there is a realistic possibility that disclosure of this material will form the evidentiary basis of his abuse of process application under the Charter.
[7] Counsel for the Attorney General opposes his application on the ground that there is no air of reality to the allegation that the deportation proceeding in 2010 was a disguised extradition proceeding carried out at the request of the United States. He submits that Mr. Wilson’s disclosure application is an impermissible fishing expedition which should be dismissed.
FACTS
[8] The extradition request stems from conduct Mr. Wilson is alleged to have engaged in between June 2008 and July 2009 in Buffalo, N.Y.
[9] It is alleged that Mr. Wilson received money from investors. Instead of investing the money as he had promised to do, he spent it on personal items.
[10] The FBI executed search warrants in relation to these allegations in July 2009.
[11] The FBI investigation continued for a year. Throughout this period Mr. Wilson was working in Buffalo.
[12] In July 2010 the U.S. Attorney’s Office sent him a letter advising that they were planning to file criminal charges against him.
[13] On July 19, 2010 he entered Canada as a passenger in a vehicle at the Peace Bridge. He drove to Toronto and then flew to Vancouver and spent a few days at Whistler, B.C.
[14] On July 21, 2010, two days after Mr. Wilson left the United States, Special Agent Rains of the FBI swore a criminal complaint against him for wire fraud. An arrest warrant was issued against him the same day in the United States.
[15] On the following day, July 22, 2010, an immigration warrant was issued for Mr. Wilson’s arrest in Canada.
[16] On July 23, 2010, information was sent from officials at the Canadian Border Services Agency (“CBSA”) at Niagara Falls to CBSA officials in Vancouver advising that Mr. Wilson was going to be flying from Vancouver to Toronto on July 24, 2010.
[17] Mr. Wilson was arrested at Vancouver International Airport by CBSA officials as he attempted to board a flight to Toronto on July 24, 2010.
[18] Formal deportation proceedings were commenced against him on July 26, 2010 by a Report to the Minister of Citizenship and Immigration under section 44(1) of the Immigration and Refugee Protection Act which stated in part as follows:
In accordance with subsection 44(1) of the Immigration and Refugee Protection Act, I hereby report that:
Michael Hugh Wilson born 06 Jan. 1987 in U.S.A.
Is a person who is:
A foreign national who has been authorized to enter Canada
And who, in my opinion, is inadmissible pursuant to:
Paragraph 36(1) (c) …
This report is based on the following information:
That Michael Hugh Wilson
Is not a Canadian citizen.
Is not a permanent resident of Canada
Orchestrated and executed a scheme by which he defrauded perspective investors of large sums of money which began in 2008 and is ongoing at present.
Was charged in the State of New York with offences contrary to Title 18 United States Code section 1343 as a result of this scheme.
[19] Mr. Wilson was released on bail following his arrest. An admissibility hearing to determine whether he should be deported was scheduled. It was withdrawn by the CBSA on August 11, 2010. No further immigration proceedings were pursued against Mr. Wilson, who remained in Canada.
[20] On March 20, 2013, the United States requested his extradition from Canada for prosecution for the same offences that were the subject of the criminal complaint and arrest warrant issued on July 21, 2010.
[21] As indicated above, his extradition hearing is scheduled for February 7, 2014.
ISSUE
[22] Crown counsel submits that the only issue I must decide is whether there is an air of reality to the allegations. He concedes that if I conclude that there is an air of reality, disclosure should be ordered.
ANALYSIS
[23] Both counsel agree that in considering Mr. Wilson’s application for disclosure I am bound by the Ontario Court of Appeal’s decision in R. v. Larosa, 2002 45027 (ON CA), [2002] O.J. No. 3219. In Larosa, Justice Doherty set out the test to be applied in determining whether to order the production of documents in support of allegations of state misconduct in extradition proceedings in part as follows at paragraphs 76 and 78:
76 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.
78 The “air of reality” requirement comes from R. v. Kwok, supra, at 267-69. An “air of reality” means some realistic possibility that the allegations can be substantiated if the orders requested are made. …
[24] Mr. Rahamin, counsel for Mr. Wilson, submits that given the timing of the events leading up to his arrest on the immigration warrant, the only reasonable and rational inference that can be drawn is that between July 19, 2010 and July 24, 2010 the authorities in the United States contacted the Canadian authorities and requested that they take action to have Mr. Wilson returned to the United States.
[25] Crown counsel submits that there are other inferences that can be drawn. He argues that there is no evidence to suggest that the deportation proceeding against Mr. Wilson in 2010 was a disguised extradition proceeding. He maintains that it was proper for the Canadian authorities to pursue deportation proceedings against him under the circumstances.
[26] The timing and circumstances of the formal commencement of criminal proceedings against Mr. Wilson in the United States and the initiation of deportation proceedings against him in Canada raise a realistic possibility that the Canadian deportation proceedings resulted from communications with the US authorities. The immigration arrest warrant was issued in Canada the day after the criminal complaint and arrest warrant were issued in the United States.
[27] Further, the criminal complaint and arrest warrant were issued in the United States two days after Mr. Wilson left the United States and entered Canada. The FBI investigation of Mr. Wilson had been ongoing for over a year at this point
[28] I find that the very close timing of these events raises a realistic possibility that there may have been communications between officials in Canada and the United States concerning Mr. Wilson’ return to the United States to face the outstanding charges. I therefore find that the requested disclosure could be relevant to Mr. Wilson’s allegation that the deportation proceedings were, in fact, disguised extradition proceedings.
[29] I do not regard the disclosure request under the circumstances to constitute a fishing expedition. There is sufficient support on the evidentiary record before me to give the allegation an air of reality. I am satisfied that there is a realistic possibility that Mr. Wilson’s allegation can be substantiated if the disclosure order is made.
CONCLUSION
[30] The application for disclosure is therefore granted in relation to all communications during the period July 19, 2010 and July 26, 2010 between officials in Canada and the United States in relation to Mr. Wilson’s return to the United States.
[31] The Attorney General of Canada is hereby ordered to provide Mr. Wilson with disclosure of any and all unredacted material regarding communications with officials of the United States of America regarding Mr. Wilson’s return to the United States from Canada, including but not limited to, letters, facsimiles, documented telephone conversations, e-mails, memoranda or notes in the possession of all Canadian officials relating to the period July 19, 2010 to July 26, 2010 inclusive.
[32] This disclosure is to be provided to Mr. Wilson within 10 days of the date of this order.
HAINEY J.
Released: December 20, 2013
COURT FILE NO.: CR139000018000MO
DATE: 20131220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Requesting State/Respondent
- and -
MICHAEL HUGH WILSON
Person Sought/Applicant
REASONS FOR decision
HAINEY J.
Released: December 20, 2013