COURT FILE NO.: CR-13-90000098-00MO

DATE: 20140314

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an application pursuant to section 29 of the Extradition Act for an order committing THI LUYEN LE a.k.a. LINH to await the Minister’s decision on whether he should be surrendered to the United States of America.

AND IN THE MATTER OF AN APPLICATION BY THI LUYEN LE a.k.a. LINH FOR DISCLOSURE

BETWEEN:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA

Respondent on Motion

(Applicant/Requesting State)

– and –

THI LUYEN LE a.k.a. LINH

Applicant on Motion

(Respondent/Person Sought for Extradition)

Faiyaz Amir Alibhai, for the Attorney General of Canada

Barry A. Fox, for the Applicant

HEARD: February 25, 2014

r.f. GOLDSTEIN J.

REASONS FOR JUDGMENT ON DISCLOSURE APPLICATION

[1] In February 2006 Ms. Le allegedly sold just over 130,000 ecstasy pills to an undercover agent of the U.S. Drug Enforcement Administration. The pills were transported by Ms. Le’s courier from Canada to the United States and seized in Philadelphia. The United States now seeks her extradition.

[2] In March 2013 the Attorney General sought a warrant for Ms. Le’s arrest. Nordheimer J. denied the request on the grounds that lapse of seven years was unexplained, but with leave to present an application with further information. More information was obtained and another application was made to Thorburn J., who granted the arrest warrant. Ms. Le was arrested and placed on bail.

[3] Mr. Fox, on behalf of Ms. Le, applies for further disclosure. He wants notes and other documents that would explain what efforts were made to locate Ms. Le. He says that there are grounds to believe that the United States authorities provided untruthful information to the Canadian authorities. He says that if the Americans lied that would be an abuse of process requiring this Court to stay the proceedings. He also says that the inordinate delay constitutes an abuse of process.

[4] I respectfully disagree. There is no basis to order disclosure because there is no air of reality to the proposed abuse of process application. As well, the issue of delay is one for the Minister of Justice during the surrender phase, if Ms. Le is committed. On February 25, 2014 I dismissed the application with reasons to follow. These are those reasons.

FACTS

[5] Dan La is a drug dealer. He is what the American authorities refer to as a cooperating witness or a cooperating defendant. In 2006 he agreed to cooperate with the DEA in exchange for sentencing consideration. He made contact with Ms. Le and spoke to her on the telephone. All of those conversations were recorded. Ms. Le indicated that she was able to supply high quality ecstasy pills that could be imported into the United States. La and an undercover law enforcement agent met with Ms. Le in Buffalo in February 2006. They discussed the price per pill of ecstasy, and the transportation of bulk currency. Ms. Le and La had several further discussions over the telephone during which they negotiated the shipment to the United States from Canada of large amounts of ecstasy pills.

[6] On March 28, 2006 Ms. Le contacted La. She indicated that her courier had the ecstasy pills and would meet with him in Philadelphia that day. La and an undercover agent met the courier as planned. They obtained just over 130,000 ecstasy pills. La then paid one of Ms. Le’s associates with a bag of paper that was simulated to look and feel like $500,000.00 in U.S. currency. Two of Ms. Le’s associates were charged and convicted in the United States but Ms. Le has remained at large since 2006.

[7] On January 18, 2013 Robert J. Livermore, an Assistant United States Attorney in Pennsylvania, certified the record of the case. On February 7, 2013 the Attorney General of Canada issued an Authority to Proceed. The equivalent Canadian offences are, rather ungrammatically, Conspiracy to “Possession” of Property Obtained by Crime contrary to sections 354 and 465 of the Criminal Code and Importing a Controlled Substance contrary to section 6 of the Controlled Drugs and Substances Act.

[8] The Record of the Case included a date of birth, photograph, driver’s licence number, vehicle make and model, and address for Ms. Le. The Record of the Case also indicated that Ms. Le is a Canadian citizen born in Vietnam.

[9] In November and December 2012 Constable Walker of the Toronto Fugitive Squad performed computer checks on Ms. Le. He conducted a Ministry of Transportation search and obtained another photograph of Ms. Le. He then performed surveillance at the address that was provided in the Record of the Case. He observed Ms. Le and confirmed her identity by comparing her to the two photographs.

[10] On March 11, 2013 Constable Walker swore an affidavit in support of an application for an arrest warrant. He summarized the allegations in the Record of the Case and the investigative steps that he had taken. Nordehimer J. dismissed the application. In a short endorsement Nordheimer J. stated that the material placed before him was insufficient to explain why Ms. Le would be considered a flight risk given that she is a Canadian citizen and that seven years had elapsed between the date of the offences and the date of the extradition request.

[11] On March 21, 2013 Mr. Livermore (the Assistant U.S. Attorney) wrote a letter providing further information. He indicated that the reason for the delay was simply that the authorities did not know where Ms. Le was located. He stated that the American authorities had received information that she had fled to Vietnam but that in 2012 they began to receive rumours that Ms. Le had returned to Canada. He further stated that the U.S. Marshall’s Service liaison in Canada coordinated with his Canadian counterparts but that the process took a considerable period of time. Mr. Livermore stated that in August 2012 the Canadian Border Services Agency contacted the U.S. Marshall’s service indicating that they had solid information regarding Ms. Le’s location. The U.S. Marshall’s Service and the CBSA then identified Ms. Le’s present location.

[12] On April 12, 2013 the Attorney General made a fresh application for an arrest warrant. Constable Walker swore a supplemental affidavit in support of that application. He attached Mr. Livermore’s letter. He obtained a traveller history for Ms. Le from the CBSA and attached it to his affidavit. The traveller history indicated that she had been out of Canada on several occasions between 2006 and 2012. The ports she had embarked from included Hong Kong and Hanoi. She travelled through Vancouver Airport in 2006, 2008, and 2009, as well as Pearson Airport on multiple occasions. Constable Walker also indicated that he had reviewed a Toronto Police Service record of arrest for Ms. Le. The record of arrest indicated that Ms. Le was facing domestic charges between May 2009 and December 2009. The charges were withdrawn. The TPS obviously knew Ms. Le’s whereabouts at that time but Constable Walker did not know whether the information was ever communicated to either the Toronto Fugitive Squad or to the U.S. authorities. Thorburn J. granted the application and an arrest warrant was issued.

[13] On April 19, 2013 Mr. Livermore wrote another letter. In the letter he stated: “Ms. Le has been a fugitive on these charges since 2006. Law enforcement in both Canada and the United States have been attempting to locate her since that time.” That letter was sent after the Attorney General made the second application for an arrest warrant. Obviously, it was not before Thorburn J. although it was disclosed to Ms. Le.

ANALYSIS

[14] Mr. Fox originally sought disclosure of the following materials from counsel for the Attorney General:

• All correspondence between U.S. and Canadian law enforcement officials respecting Ms. Le;

• Full disclosure of any MLAT requests relating to Ms. Le;

• Notes of officers involved in providing information to the United States in relation to this matter;

• Full disclosure of efforts made by U.S. authorities to locate Ms. Le;

• Disclosure that would independently support the U.S. claim that Ms. Le had fled to Vietnam and that U.S. and Canadian law enforcement agencies began to look for Ms. Le;

• Disclosure to support the claim that efforts to locate Ms. Le were undertaken by the U.S. Marshall liaison in Canada who consulted with Canadian authorities;

• Disclosure of the source of rumours that Ms. Le had returned to Canada in 2012;

• Disclosure from CBSA as to their evidence gathering in Canada with respect to Ms. Le, as well as disclosure of when and to whom the information was provided;

• A copy of the request made by Constable Walker to the CBSA for the traveller history.

[15] Mr. Fox also wrote directly to Mr. Livermore requesting information. He informed the Court that he has not received a reply from Mr. Livermore.

[16] Before me, Mr. Fox took a more narrowly focussed position. He indicated that he was not seeking an order compelling the production of material in the possession of the American authorities. He agreed with counsel for the Attorney General that this Court has no jurisdiction to make that order, an appropriate concession given the weight of authority from many provinces: see, for example, R. v. Lore (1997), 1997 10604 (QC CA), 116 C.C.C. (3d) 255 (Que.C.A.); United States of America v. Go, 2008 38267 (ON SC), [2008] O.J. No. 3012 (Sup.Ct.); R. v. Stuckey, [2005] B.C.J. No. 699 (Sup.Ct). He also withdrew his request for outstanding MLAT requests. As I understand it, he now seeks disclosure only of correspondence between Canadian and American authorities (which is undoubtedly in the possession of the authorities in this country) and disclosure in relation to efforts made to find Ms. Le.

[17] Mr. Alibhai, for the Attorney General, opposes the application on the basis that there is no air of reality to the claim that Mr. Livermore lied in his letters. He also argues that the question of delay is one for the Minister.

[18] In my view, there are two issues to be decided:

(1) Is there an air of reality to the assertion that Ms. Le has been prejudiced by the delay?

(2) Is there an air of reality to the proposed abuse of process motion?

Is there an air of reality to the assertion that Ms. Le has been prejudiced by the delay?

[19] I begin with the following observations:

[20] First, an extradition hearing is not a trial. The extradition judge is required to determine only two things: first, whether there is a prima facie case that a crime was committed in the foreign jurisdiction and that it would constitute a crime if committed in Canada; and second, that the evidence establishes on a balance of probabilities that the person before the court is the person sought. The decision to actually surrender a person sought is made by the Minister of Justice.

[21] Second, disclosure as a matter of course is available in an extradition proceeding only in relation to issues properly raised at the committal stage of the proceedings. A Court may, however, order further disclosure where an applicant can show that there is an air of reality to the proposed Charter application: United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532 at paras. 100, 106.

[22] Third, a stay of proceedings will only be granted in the clearest of cases: United States of America v. Khadr, 2011 ONCA 358, [2011] O.J. No. 2060; 234 C.R.R. (2d) 31, 106 O.R. (3d) 449, 273 C.C.C. (3d) 55; 337 D.L.R. (4th) 638 (C.A). There is no doubt that the Court may stay a proceeding where would be fundamentally unfair. The Court also has a residual power to stay proceedings that would not be procedurally unfair but would nonetheless approve of egregious state conduct: Khadr, paras. 31-32.

[23] There is some question as to the test for disclosure to be applied at the committal stage of the proceeding. In United States v. Larosa, 2002 45027 (ON CA), [2002] O.J. No. 3219, 166 C.C.C. (3d) 449 (C.A.) Doherty J.A. set out the three-part test for determining whether a court should order further disclosure at the appeal or judicial review stage of a proceeding:

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.

[24] Decisions of the Superior Court as to the appropriate test have generally followed Larosa: United States of America v. Wilson, [2013] O.J. No. 5933 (Sup.Ct.); United States of America v. Mathurin, 2013 ONSC 2575, [2013] O.J. No. 1957 (Sup.Ct.).

[25] To the contrary, however, is the decision of K. Campbell J. in United States of America v. Qumsyeh, 2012 ONSC 5987, [2012] O.J. No. 4970, 269 C.R.R. (2d) 334 (Sup.Ct.). In 2012 Qumsyeh was sought by the United States for the murder of his wife. She was killed in 1982. He had apparently been convicted in Jordan of the same crime and served a 15-year sentence there. He sought disclosure of information in the hands of the American prosecutorial authorities in order to show that there had been involvement in the Jordanian prosecution. He also wished to build a case for an abuse of process and double jeopardy argument.

[26] Justice Campbell stated:

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.

[27] Since the question of double jeopardy was left to the Minister at the surrender phase, K. Campbell J. refused to order the disclosure.

[28] I respectfully agree with K. Campbell J. that Larosa should not be applied to disclosure questions at the extradition hearing, although it is obviously of assistance. An extradition judge has a limited function. The following comments of Arbour J. in Kwok should continue to guide disclosure applications at the committal stage:

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 (Dynar, supra, per Cory and Iacobucci JJ., at para. 141). 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.

[29] I turn now to the question of delay. There are different kinds of delay that may result in a remedy. Pre-extradition delay caused by the failure of the requesting state to seek the return of the person sought in a timely manner is one type of delay. The issue for a judge at the committal stage is whether that delay has resulted in the potential for an unfair hearing. Another type of delay is delay that is so fundamentally oppressive that it would result in an injustice and merit a stay of proceedings. This second delay forms part of the residual jurisdiction of the court to stay proceedings as I have already discussed.

[30] Mr. Alibhai, for the Attorney General, referred to United States of America v. Gillingham, 2004 BCCA 226, [2004] B.C.J. No. 822, 239 D.L.R. (4th) 320, 184 C.C.C. (3d) 97, 118 C.R.R. (2d) 256 (B.C.C.A.). In that case the British Columbia Court of Appeal considered a submission that the failure of the prosecutorial authorities in Montana to seek the person sought in a timely manner. The Court agreed that an extradition judge has jurisdiction to consider pre-extradition delay where that delay may affect the fairness of the extradition proceeding. I agree. Mere delay is within the purview of the Minister as it concerns the internal criminal process of the requesting state: Republic of Argentina v. Mellino, 1987 49 (SCC), [1987] 1 S.R.R. 536, 33 C.C.C. (3d) 334; China v. Wong, 2009 ONCA 148, [2009] O.J. No. 598 (C.A.). It is only where delay would affect the fairness of the proceeding that an extradition judge may order disclosure.

[31] The Court in Gillingham also held that the residual jurisdiction to stay proceedings where the delay is fundamentally oppressive and unjust is left to the Minister: see paras. 92-94. The Attorney General relies on this decision for the proposition that disclosure may not be ordered in relation to this type of delay. Given the subsequent decisions of the Ontario Court of Appeal in Khadr and Czech Republic v. Zajicek, 2012 ONCA 99, [2012] O.J. No. 627, 108 O.R. (3d) 721, 280 C.C.C. (3d) 1, 343 D.L.R. (4th) 410 (C.A.) I have doubts that the Attorney General’s position is correct, at least in Ontario.

[32] In my view, there is no air of reality to the claim that the pre-extradition delay has resulted in unfairness during the extradition process or that the delay has been so oppressive and unfair as to be fundamentally unjust. That is because there is simply no evidence of unfairness such that Ms. Le would be unable to have a fair extradition hearing. There is also no evidence that the delay is so fundamentally unjust that it would be oppressive and unfair to continue the process. There is also nothing apparent in the record of the case that would point to an unfairness or injustice. Ms. Le relies on the mere passage of time. With respect, the mere passage of time without more is not the type of delay that can be remedied by an extradition judge. Accordingly, I would not order disclosure in relation to the pre-extradition delay.

Is there an air of reality to the proposed abuse of process motion?

[33] Mr. Fox does not argue that the alleged lies told by the American authorities about their efforts to locate Ms. Le would cause procedural unfairness. Rather, he relies on the residual jurisdiction of the Court. He argues that there is a basis upon which a court could find that the requesting state told a deliberate lie and, therefore, that the Court should stay the proceeding in the interests of protecting the integrity of its process. Mr. Fox argues that the assertions by Mr. Livermore cannot be true. Constable Walker was able to locate Ms. Le quickly and easily using information provided by the Americans. All he did was run a Ministry of Transportation check to obtain a photograph for surveillance purposes.

[34] I respectfully disagree. The notion that simply because one municipal law enforcement agency in Canada was aware of Ms. Le’s whereabouts for a period in 2009 when she faced relatively minor charges means that the entire giant United States law enforcement apparatus was also automatically aware of her whereabouts is unrealistic. There is no evidence that there is such automatic access. There is an assertion that Ms. Le has lived openly in Ontario since 2006. The assertion rests on the assumption that since she was before the courts for six months in 2009 and that because her picture was in the Ministry database she could easily have been found. That assertion is certainly not enough to give an air of reality to the proposed Charter motion. The CBSA traveller history lends some credence to Mr. Livermore’s assertion that the United States authorities had received rumours that Ms. Le had fled to Vietnam and returned to Canada some years later. In 2006 Ms. Le transited twice through Vancouver Airport. In 2008 she did so again, as well as once in 2009. Vancouver is obviously the Canadian gateway for Pacific Rim countries. Although that evidence is certainly not dispositive, it does nothing to contradict the information in Mr. Livermore’s letter. As well, the traveller history shows that Ms. Le had travelled through Hanoi in 2011 and Hong Kong in 2012. Again, that evidence is not dispositive but it certainly gives at least some weight to Mr. Livermore’s assertion that in 2012 the American authorities received information that Ms. Le had returned to Canada and does nothing to contradict anything said by Mr. Livermore. Even if Mr. Livermore was simply incorrect about Ms. Le’s residency, a mere error is not in and of itself enough to give rise to an abuse of process. As well, I note that the letter did not claim that Ms. Le had resided in Vietnam, (as it was put in the Notice of Application) but merely that the American authorities had received information.

[35] Ms. Le provided an affidavit at her bail hearing setting out her previous Ontario addresses. She did not offer more detailed evidence to refute the suggestion in Mr. Livermore’s letter on this application. Her affidavit mentions business dealings with China and Vietnam but says nothing about her travels. That affidavit was not before me on the application but I am aware of its contents.

[36] I would also point out that at its highest, the state conduct complained of by Ms. Le is that the Americans easily could have found her if they had looked a little harder and then lied to cover up their laziness. With great respect to Mr. Fox, who made a very focused and effective argument, I do not agree that the evidence supports that assertion. Even if it did, I have some doubts that such conduct would justify a stay of proceedings when it only went to the issue of whether a warrant or summons should be issued, and when it is compared to some of the very egregious cases in the extradition context:

• Torture of the person sought by the Pakistani security forces: Khadr;

• A threat of prison rape if the person sought did not surrender: United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587.

[37] Finally, it is clear that all of the information before me was also before Thorburn J. when she issued the warrant for the arrest of Ms. Le.

DISPOSITION

[38] The application is dismissed.

R.F. Goldstein J.

Released: March 14, 2014

COURT FILE NO.: CR-13-90000098-00MO

DATE: 20140314

ONTARIO

SUPERIOR COURT OF JUSTICE

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA

Respondent on Motion

(Applicant/Requesting State)

– and –

THI LUYEN LE a.k.a. LINH

Applicant on Motion

(Respondent/Person Sought for Extradition)

REASONS FOR JUDGMENT on disclosure application

R.F. Goldstein J.

Released: March 14, 2014