CITATION: A.G. Canada v. Gill, 2015 ONSC 2577

COURT FILE NO.: 542/14

DATE: 20150421

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

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

Respondent/Requesting State

– and –

ARPINDER SINGH GILL

Applicant/Person Sought for Extradition

Nancy Dennison, for the Respondent

Alan Gold, for the Applicant

HEARD: March 2, 2015

RULING ON DISCLOSURE APPLICATION

WEIN J.

Overview of the Case

[1] Mr. Gill was arrested on September 25, 2014, in Canada, pursuant to a provisional arrest warrant under the Extradition Act. The warrant relates to two Indictments issued in the State of Michigan in the United States in April 2004 and October 2006, charging the Applicant with conspiracy to possess with intent to distribute marijuana, cocaine, and MDMA. The underlying offences date back to a period between December 2002 and July 2003.

[2] Mr. Gill now asserts that the close to ten-year delay by the United States in taking steps to secure his presence at trial amounts to an abuse of process, warranting a stay of the extradition proceedings.

[3] He has brought an Application in advance of his extradition hearing for an order requiring the Attorney General of Canada [AG Canada] to obtain and disclose all relevant material in possession of any authorities, in Canada or the United States, relating to “the decision not to take steps to secure the Applicant’s presence at a trial to answer the criminal charges against him, notwithstanding their knowledge of the applicant’s whereabouts.” At the hearing of the Application, his Counsel agreed that disclosure had previously been given by the AG Canada, and that the request is now limited to an order requiring the obtaining and disclosure of material in the United States relating to “the failure to secure the Applicant’s presence at a trial to answer the criminal charges against him, notwithstanding their knowledge of the applicant’s whereabouts .”

[4] The Applicant submits that the material sought will support an argument under section 7 of the Charter that the delay in seeking extradition impacts the fairness of the extradition hearing and amounts to an abuse of process such that proceeding with the extradition hearing would violate the Charter.

[5] The Applicant also submits, tangentially, that what evidence has already been disclosed by the Canadian authorities about the U.S. actions is inadmissible hearsay. That argument cannot be a basis for enhancing the right to disclosure at this stage, however.

[6] The AG Canada, on behalf of the requesting state, argues that there is no jurisdiction to order disclosure of materials in possession of the United States, that the Applicant is already in possession of materials from authorities in Canada, and that even if there were jurisdiction to order the disclosure requested, there is no “air of reality” to the argument that the Applicant’s right to fair extradition proceedings would be prejudiced. Finally it is argued that that, in any event, any delay by the United States authorities that does not impact his right to a fair hearing is a matter for the Minister to consider at the surrender phase. In short, it is argued that the application amounts to a “fishing expedition”.

Chronology

[7] The chronology of events is undisputed:

Date

Event

December 1, 2002

Commencement of alleged conspiracy to possess illegal drugs with intent to distribute

January 2003

Time period of Canadian investigation named Project Longhaul.

July 29, 2003

Conclusion of Project Longhaul.

July 23, 2003

Date of search warrants executed at applicant’s residence in Brampton, ON

July 31, 2003

Conclusion of time period of conspiracy to possess with intent.

September 2003

Applicant departed for India

April 29, 2004

Indictment issued by Grand Jury, State of Michigan USA

July 23, 2004

British Columbia information charging conspiracy to import and traffic cocaine

July 23, 2004

Warrant for applicant’s arrest

October 25, 2006

Michigan First Superseding indictment adding MDMA to charge

June 19, 2008

Applicant renews passport in New Delhi, India

June 20, 2013

Applicant renews passport in New Delhi, India

July 26, 2013

Applicant returns to Canada

August 1, 2013

Applicant arrested on Canadian charges

September 19, 2014

British Columbia charges stayed pursuant to section 11(b)of Charter

September 21, 2014

Applicant returns to Brampton, ON

September 25, 2014

Applicant arrested on provisional arrest warrant

November 2014

AG Canada receives request from U.S. to extradite

December 2014

Minister issues Authority to Proceed.

Jan 8, 2015

Disclosure from the Attorney General of Canada requested

Jan 8, 2015

Further disclosure denied by the Attorney General of Canada

Requested Disclosure

[8] The Applicant asks this Court to order disclosure of all relevant material in possession of any authorities in the United States, regarding the efforts made to bring him to trial in the United States. In particular, the Applicant seeks disclosure of information regarding any efforts made by the United States to extradite him since his Indictment in Michigan, dated April 29, 2004, until September 2014, when the Applicant was released from custody in British Columbia and the Minister of Justice issued the Authorization to Apply for a Provisional Arrest Warrant, pursuant to s.12 of the Extradition Act.

Jurisdiction

[9] While the original request was for disclosure of relevant material from authorities, in both Canada or the United States, it has been acknowledged by the Applicant that the Canadian authorities, prior to the hearing of the application for a stay of the Canadian charges on the basis of unreasonable delay, provided full disclosure. It is acknowledged that the only outstanding disclosure is in the hands of the foreign authorities, specifically the United States. The jurisdictional issue is whether or not this court can order this disclosure, either directly, or by ordering the Attorney General of Canada to formally ask the requesting state to produce the material in its possession.

[10] There are extensive authorities that hold that the court does not have jurisdiction to order disclosure in possession of foreign authorities in the context of extradition proceedings.

[11] In U.S.A. v. Qumseyh, 2012 ONSC 5987, the applicant sought a disclosure order requiring the Attorney General to provide information about the U.S.’s efforts to seek his extradition from Jordan. The applicant was charged with murder in Michigan, and he argued that extradition to the U.S. would violate his s.7 Charter rights. He argued double jeopardy, since he had already been prosecuted and convicted of the offence of murder in Jordan - the same charge underlying the potential extradition to the United States. The court held that “an extradition judge has no jurisdiction to make an extra-judicial order demanding that the prosecutorial authorities in the United States provide this disclosure” (para 62).

[12] As well, the disclosure request was brought before the extradition hearing was held, and so the Minister had not yet had the opportunity consider the disclosure request. Because the issue of double jeopardy was one that the Minister was obliged to consider in relation to a Surrender Order, the court held that, at the committal stage, an extradition judge should not make an extra-jurisdictional order to provide the disclosure before the Minister had a chance to consider the issue and potentially pursue diplomatic channels.

[13] In U.S.A. v. Sidhu, (unreported May 23 2012, S.C.J.), in a case where publically available court records were sought, the court dismissed the application for disclosure on the basis that the court had no jurisdiction to order the Attorney General to produce information that it does not control or possess, and that in any event the records could be obtained by U.S. counsel asking for an unsealing order.

[14] Similarly in U.S.A. v. Go, 2008 CanLII 38267 (ON SC), [2008] O.J. No.3012( S.C.J.), the court held that there was no jurisdiction to order disclosure.

[15] In Germany v. Shrieber, [2000] O.J. No. 2618, the Court held that the disclosure sought was beyond the authority of the court to provide. The court went on to state that the Record of the Case identified the source of the material on which its statements of fact were said to be based. The court concluded that:

there is no warrant in the Act or Treaty to require disclosure of the primary materials in the custody of authorities in the [requesting state]. At all events, such an order would not be enforceable. Domestic disclosure commands do not extend to foreign jurisdictions (at para. 89).

[16] The Applicant also relies on the decision in U.S.A. v. Cobb, 2001 SCC 19, [2001] S.C.J. No. 20 [Cobb]. The Supreme Court of Canada, in reviewing its earlier decision in R. v. Kwok, 2001 SCC 18 [Kwok], noted that, while the extradition judge does possess some Charter jurisdiction in relation to the initial committal phase of the extradition process, this Charter jurisdiction must be assessed in light of the limited function of the court under the Act. This function “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”. (para 22).

[17] It is clear that an extradition judge can 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 (para. 26).

[18] Cobb was not a disclosure case, but related to threats made by the requesting state intended to intimidate the applicant into abandoning his right to resist his extradition by lawful means pursuant to s.7 of the Charter. The Court held that concerns over such conduct properly belonged to the judicial phase of the extradition process, because the violation of the appellant’s rights occurred at the judicial phase and could not be remedied by the Minister, who is “not the guardian of the integrity of the courts” (para 44).

[19] In paragraph 35 of Cobb, the court held:

The Requesting State is a party to judicial proceedings before a Canadian court and is subject to the application of rules and remedies that serve to control the conduct of parties who turn to the courts for assistance. Even aside from any claim of Charter protection, litigants are protected from unfair, abusive proceedings through the doctrine of abuse of process, which bars litigants — and not only the State — from pursuing frivolous or vexatious proceedings, or otherwise abusing the process of the courts.

[20] However, as Cobb was not a disclosure case it is not directly applicable and the other case relied on by the applicants, Kwok, was a situation of domestic disclosure.

[21] In U.S.A v. Tollman [2006] O.J. No. 5588, The Attorney General had suggested that disclosure may not be ordered in relation to a fundamentally oppressive delay, and that only the Minister had the discretion.

[22] In U.S.A. v. Le, 2014 ONSC 1569, [2014] O.J. No. 1245 it was acknowledged that the court had no jurisdiction to order the production of material in the possession of American authorities (paragraph 16).

[23] In light of these authorities, it is clear that this court does not have jurisdiction at this stage to order the production of materials in the possession of the United States authorities. The proper course is to have the Minister consider this issue at the surrender stage.

[24] Accordingly, this application is premature.

Test for Disclosure where Delay Amounts to a Charter Breach

[25] Even if there were jurisdiction to order disclosure at this stage, the Applicant would still have to meet the Larosa test to determine whether the court should compel the production of additional disclosure on the basis of an alleged Charter breach. An individual’s right to disclosure in the extradition context is more limited than in a criminal trial. As a starting point, it is undisputed that the Stinchcombe rules of disclosure in criminal trials do not apply at an extradition hearing.

[26] The extent of the fugitive’s right to disclosure was set out by the Supreme Court of Canada in U.S.A. v. Dynar, [1991] S.C.J. No. 64 where it was held that, in light of the limited nature of an extradition hearing, the fugitive is only entitled to “disclosure of materials on which the Requesting State is relying to establish its prima facie case” (para 134).

[27] Nonetheless, where the fugitive is able to demonstrate an air of reality to a Charter breach, they may be entitled to additional disclosure to allow the fugitive to establish a factual basis for a Charter challenge. For example, such disclosure may relate to the production of documents and/or the compelling of testimony in support of allegations of state misconduct. Even in the decision in U.S.A. v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532 , the applicant’s request was limited to materials in the hands of the Canadian authorities( para. 97)

[28] In order to succeed on an application for additional disclosure where there is an alleged Charter breach, the applicant must satisfy a three-part test, set by the Ontario Court of Appeal in R v. Larosa, 2002 CanLII 45027 (ON CA), [2002] O.J. No. 3219 (C.A.) at para 76:

1. the allegations must be capable of supporting the remedy sought;

2. there must be an air of reality to the allegations; and

3. it must be likely that the documents sought would be relevant to the allegations.

[29] Importantly, the jurisprudence is clear that bald allegations of state misconduct said to amount to a Charter breach will not suffice. Rather, the applicant must provide an evidentiary foundation to support the allegations in question. Further, such an evidentiary base must be established before additional disclosure can be ordered. In other words, the applicant is not entitled to additional disclosure in order to determine whether his Charter rights have been violated (Larosa at para 85; see also U.S.A. v. Coa, 2009 CanLII 65377 (ON SC), [2009] O.J. No. 4987 at para 38; U.S.A. v. Earles, 2003 BCCA 20 at paras 35-37).

[30] When the basis for the Charter breach is unreasonable delay, only a delay that compromises the fairness of the extradition hearing is within the purview of the extradition judge. It is clear that s.11(b) of the Charter does not apply to extradition proceedings: Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536.

[31] Only a delay that is of such an extent that it amounts to an abuse of process will reach a Charter s. 7 claim. There must be a sufficient nexus between the alleged abusive conduct and the committal hearing itself. A general example of such a nexus would be where evidence introduced at the committal hearing was obtained through the misconduct of the requesting state.

[32] Where, however, the delay is attributable to the requesting state, such a nexus will not exist because the delay pertains to the operation of the criminal justice process in the requesting state. The Court must not delve into questions relating to the process of a foreign state that is an extradition partner: Mellino. That type of delay falls within the purview of the Minister to be considered at the surrender stage: U.S.A. v. Gillingham, 2004 BCCA 226, Sidhu.

[33] In this case, the Applicant asserts that the ten-year delay by the United States in bringing these extradition proceedings, notwithstanding that they knew his whereabouts, has resulted in a violation of his s.7 Charter rights. It is argued that this delay:

a) impacts the fairness of the extradition hearing; and

b) amounts to an abuse of process.

[34] In particular, the Applicant asserts that the delay has prejudiced him by undermining his ability to make full answer and defence in responding to the case for committal at the extradition hearing. He argues that he no longer has a memory of the alleged events, and all relevant records he might have had have since been destroyed.

[35] As indicated above, this court has a limited jurisdiction to consider whether the delay has impacted the fairness of the extradition hearing.

[36] The second question is whether the Applicant has demonstrated an air of reality that he will not have a fair extradition hearing. Significantly, this question must be considered in the context of the limited function of an extradition hearing – that is, whether there is sufficient evidence to warrant the Applicant’s committal for trial. In other words, at this stage, the extradition judge is merely considering whether there is some evidence upon which a jury could convict.

[37] A bald allegation of inherent prejudice arising from delay will not suffice: see Turchin c. Etats-Unis d’Amerique 2007 QCCA 136 at paras.59-60. The Applicant has not established an impediment to his ability to respond to the case at this stage, of committal. Mere delay is not in and of itself sufficient to prevent the Applicant from preparing for the extradition hearing.

[38] With respect to whether the delay amounts to an abuse of process, this court only has jurisdiction to consider the issue if there is a sufficient nexus between the alleged state misconduct and the committal hearing. Because the Applicant attributes the delay underlying the request for additional documents in this case to the United States authorities, as noted above, this court does not have jurisdiction to consider the issue because the conduct causing the alleged abuse of process relates to the criminal justice process within the United States. It is the prosecutorial and judicial officials of the United States who have the responsibility to determine whether the delay has impacted the Applicant’s ability to defend himself in the trial proper. Canadian courts are not positioned to supervise the conduct of foreign criminal justice officials.

[39] In any case, a review of the authorities indicates that the ten-year delay in this case is not inherently sufficient to warrant a stay of the extradition proceedings on the basis of an abuse of process amounting to a breach of s.7 of the Charter. In a number of cases, a delay of such duration and much longer has not been found to merit a stay of proceedings: see Factum of AG Canada, para. 58.

Disclosure for Purposes of Ministerial Hearing

[40] The Applicant requests, in the alternative, additional disclosure in order to create a record before the Minister of Justice for the purposes of the surrender hearing. Pursuant to s.43(1) of the Extradition Act, the Applicant is entitled to make submissions to the Minister in relation to the executive decision to surrender. Pursuant to s.44(1)(a) of the Act, the Minister must not surrender an individual if to do so would be unjust or oppressive in the circumstances of the case.

[41] In Kwok, the Supreme Court of Canada commented on the authority of the extradition judge to hear evidence relating to a Charter violation that is within the purview of the Minister to entertain at the surrender stage:

74 If s. 6 issues are premature at the committal stage, it would follow that evidence dealing with an alleged s. 6 breach would be irrelevant and therefore inadmissible at the committal hearing. However, on efficiency grounds, it has been recognized that extradition judges could have the discretion to hear, without deciding, evidence on alleged s.6 Charter violations when the allegations hold an air of reality: Whitley and Philippines (Republic), supra. This may indeed be an appropriate course of action, for instance when the issues relevant to the committal are intertwined with the factual basis upon which the Charter challenge will subsequently be based, or when the same witnesses may conveniently be heard on both issues, but I stress that this is entirely within the discretion of the extradition judge. As the Minister may decline to surrender the fugitive committed for extradition, efficiency may equally dictate waiting for the Minister's decision before arguing Charter remedies, particularly if it calls for an evidentiary foundation unrelated to that presented in relation to the committal. This concern was well expressed by Blair J. in United States v. Houslander (1993), 1993 CanLII 8617 (ON SC), 13 O.R. (3d) 44 (Ont. Gen. Div.), at p. 51:

"Building a case for another purpose" is not consistent with the nature of the extradition hearing, which is designed to provide a summary and expeditious determination as to whether there is sufficient evidence to commit the fugitive for surrender.

[42] The Applicant submits that it is in the interests of justice to allow him to establish a clear evidentiary record at the extradition hearing about the conduct of the United States before he must make submissions or establish such a record before the Minister. In support of this position, the Applicant asserts that the facts underlying the Charter breach relating to the extradition hearing are intertwined with those underlying the Charter issues that would be raised before the Minister. He therefore argues that it would be efficient and suitable to allow the parties to establish a factual record at this stage.

[43] The Supreme Court’s comments in Kwok indicate that the extradition judge has discretion to hear such evidence when the allegations have an ‘air of reality’. As noted above the Applicant has not satisfied this court that there is an air of reality to his allegation that the length of delay has rendered his extradition hearing unfair. Further, there is nothing to indicate that the issues relevant to committal are intertwined with the factual basis upon which the Charter challenge will subsequently be based, or that the same witnesses would be heard on both issues.

[44] In addition, the Minister has exclusive jurisdiction to determine whether delay attributable to the requesting state has amounted to an abuse or oppression of the fugitive’s rights.

[45] For these reasons, I am not satisfied that disclosure should be ordered to create a record for the Minister. The Applicant will be required to proceed on this issue at the surrender stage of the extradition process.

CONCLUSION

[46] The Applicant’s request for disclosure is denied.

Wein, J.

Released: April 21, 2015

CITATION: A.G. Canada v. Gill, 2015 ONSC 2577

COURT FILE NO.: ex 542/14

DATE: 20150421

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

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

Respondent/Requesting State

– and –

ARPINDER SINGH GILL

Applicant/Person Sought for Extradition

Ruling on disclosure application

Wein J

Released: April 21, 2015