CITATION: United States of America v. Singh, 2015 ONSC 3648
COURT FILE NO.: 329/13
DATE: 20150605
ONTARIO
SUPERIOR COURT OF JUSTICE
(TORONTO REGION)
IN THE MATTER OF AN APPLICATION
PURSUANT TO SECTION 39 OF THE EXTRADITION ACT, S.C. 1999, c. 18,
FOR AN ORDER THAT ITEMS SEIZED AT ARREST BE TRANSFERRED TO
THE UNITED STATES OF AMERICA ON SURRENDER
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Applicant
– and –
JASJIT VIRDI SINGH a.k.a. “JASJIT SINGH VIRDI”
Respondent
Moiz Rahman, for the Attorney General of Canada
Wayne A. Cunningham, for Jasjit Singh
HEARD: April 23, 2015
REASONS FOR DECISION
N. SPIES J.
Overview
[1] The Attorney General of Canada (“Attorney General”) sought an order on behalf of the United States of America for the committal for extradition of Jasjit Virdi Singh. Mr. Singh is sought for prosecution on one count of failure to attend court and to impose sentence in relation to ten convictions for various offences related to sexual interference, all contrary to the California Penal Code and set out in the Authority to Proceed issued February 14, 2014.
[2] On March 6, 2015, I ordered the committal of Mr. Singh into custody pursuant to s. 29 of the Extradition Act (the “Act”) to await surrender for prosecution and sentencing for these offences.
[3] The Attorney General now seeks an order pursuant to s. 39 of the Act providing that items seized from Mr. Singh when he was arrested pursuant to a warrant issued under the Immigration and Refugee Protection Act (“IRPA”) on August 29, 2013, be sent to the United States to be used in his prosecution on the failure to attend court offence. On December 12, 2013, while already in custody, Mr. Singh was arrested on a provisional arrest warrant under the Act.
[4] When Mr. Singh was arrested on August 29, 2013, the Toronto Fugitive Squad seized an Apple iMac Pro, an Apple iPad and three Apple iPhones (the “Seized Items”). The Seized Items were placed in a property locker with the Toronto Police Service and have remained in the custody of the Toronto Police Service since that arrest under the IRPA.
[5] I heard submissions from counsel on April 23, 2015, and for the reasons that follow I have decided to dismiss the Attorney General’s application.
The Relevant Provisions in Issue
[6] Subsection 39(1) of the Act states:
39 (1) Subject to a relevant extradition agreement, a judge who makes an order of committal may order that any thing that was seized when the person was arrested and that may be used in the prosecution of the person for the offence for which the extradition was requested be transferred to the extradition partner at the time the person is surrendered. (Emphasis added)
[7] Article 15 of the Treaty on Extradition Between the Government of Canada and the Government of the United States of America CTS 1976 No. 3 (“Treaty) states:
[^1]The extent permitted under the law of the requested State and subject to rights of third parties, which shall be duly respected, all articles acquired as a result of the offense or which may be required as evidence shall, if found, be surrendered to the requesting State if extradition is granted. (Emphasis added)
Subject to the qualifications of paragraph (1) of this Article, the above-mentioned articles shall be returned to the requesting State even if the extradition, having been agreed to, cannot be carried out owing to the death or escape of the person sought.
The Issues
[8] Section 39 of the Act permits a judge who issues a committal order to include an order to transfer to the requesting State any item seized upon the arrest of the person sought that may be used in the prosecution of the person for the offence for which the extradition was requested.
[9] The central issue in dispute is the statutory interpretation of s. 39 of the Act. Mr. Rahman, counsel for the Attorney General, submitted that as a result of the opening words of s. 39(1) of the Act, this application to send the Seized Items is governed by Article 15 of the Treaty which he argued overrides the wording of s. 39(1) of the Act and governs the categories of evidence that can be sent to the United States. It is his position that the Treaty does not require that the items be seized upon an arrest, whatever the basis for that arrest because it uses the word “found”. In the alternative, if s. 39(1) governs, he submits that it is not restricted to items seized upon an arrest made pursuant to the Act but rather applies to items seized upon any lawful arrest whether under the Act or some other authority.
[10] Mr. Cunningham on behalf of Mr. Singh admits that the Seized Items sought to be sent to the United States may be used in the prosecution of Mr. Singh. However, he submitted that the Act, not the Treaty, determines the authority to send the Seized Items. Relying on the modern approach of statutory interpretation he argued that the opening words of s. 39(1) of the Act are a limitation or a restriction on a power and that the word “arrest” in s. 39(1) only applies where items are seized pursuant to an arrest under the Act and as such this application ought to be dismissed.
[11] Mr. Singh also asserts that his Charter rights were violated when he was arrested and searched and the items were seized. Counsel sensibly agreed that the issue of the statutory interpretation of s. 39 of the Act be decided first since a dismissal of that application would render the Charter issue, at least for these purposes, moot.
Analysis
[12] In s. 2 of the Act, “extradition agreement” is defined as “an agreement that is in force, to which Canada is a party and that contains a provision respecting the extradition of persons, other than a specific agreement.” There is no dispute that in this case the relevant extradition agreement that is referred to in the opening words of s. 39(1) of the Act; “[s]ubject to a relevant extradition agreement,” is the Treaty.
[13] Counsel only found one other decision considering the meaning of s. 39 of the Act; a decision of the British Columbia Supreme Court, United States of America v. Berke, 2013 BCSC 619, where Justice Ehrcke analogized the purpose behind a request to transfer items under s. 39 to requests made under the Mutual Legal Assistance in Criminal Matters Act (“MLACMA”) to send evidence abroad in determining whether or not the second prong of s. 39(1) had been met. That decision does not consider the issues raised in the case at bar.
The Meaning of “found” in the Treaty
[14] I turn first to what it would mean if the Treaty governs this application as submitted by Mr. Rahman. I agree with his submission that Article 15 gives the court much broader powers than s. 39(1) of the Act.
[15] Mr. Rahman’s primary position is that the term “found” in Article 15 means that the item is in the sending State’s lawful possession and he submits that it includes anything found as a result of a lawful search. I agree. On the plain wording of the Treaty, it does not appear to require that evidence sent to the United States be seized upon an arrest, whether the authority for that arrest is a statute or common law. The Treaty’s use of the words “if found” are at least broad enough to mean anything found as a result of a lawful search of a person, place or thing. The phrase does not suggest in any way that the search must be associated with a lawful arrest of the person.
[16] Article 15 of the Treaty is broader than s. 39(1) of the Act as to the items covered as well in that unlike s. 39(1), Article 15 does not require that the evidence “may be used in the prosecution” of the person sought. It refers to two categories of evidence: 1) articles acquired as a result of the offence; or 2) articles which may be required as evidence.
[17] For these reasons, if the Treaty governs this application as submitted by Mr. Rahman, then there is no basis to find that the Seized Items had to have been “found” pursuant to a lawful arrest. I see no way to interpret the language of Article 15 of the Treaty as requiring any arrest. Article 15 of the Treaty provides for a very broad power to send items “found” in Canada to the United States. Clearly if the Treaty governs, notwithstanding the language of the Act, subject to Mr. Singh’s Charter argument, the Seized Items could be sent to the United States even though he was not arrested under the Act when the Seized Items were found.
The Meaning of “subject to” in s. 39(1) of the Act
[18] I turn then to the central issue, the statutory meaning of s. 39(1); considering first its opening words: “[s]ubject to a relevant extradition agreement”.
[19] As I have already stated, Mr. Rahman’s position is that this opening phrase means that the Act is subject to the Treaty and that to the extent the Treaty is broader in scope with respect to items found in Canada that the Treaty overrides the Act and governs the sending of Seized Items to the United States.
[20] To give meaning to s. 39(1) Mr. Rahman submitted that the Treaty requires a judicial process by which the request can be made and that s. 39 governs procedurally but what can be sent is governed by the Treaty. Mr. Rahman also gave some examples where he submitted that the plain language of s. 39 would apply and he referred to the wording of many treaties in his factum. The difficulty with this aspect of his submissions is that it does not appear that the wording in other treaties has been litigated so in my view the provisions of other treaties do not assist me in deciding this application.
[21] Mr. Rahman submitted that the words “subject to” can be expansive and he referred to s. 3(1)(a) of the Act where the opening language is identical to s. 39(1). That subsection sets out as the default requirement for extradition that the sentence for the offence in the requesting State be a maximum term of two years or a more severe punishment. Article 2 of the Treaty, however, provides that extradition shall be granted if the term is greater than one year or any greater punishment which Mr. Rahman submitted was broader. The language of the Act is awkward but As Mr. Cunningham submitted, there does not appear to be a conflict in these two provisions. In any event, this argument presumes the correctness of Mr. Rahman’s position as this conflict, if there is one, has never been litigated. As a result this does not assist me in deciding this case.
[22] Mr. Rahman also submitted that s. 39 has to be interpreted in accordance with Canada’s international obligations, relying on United States of America. v. Anekwu, 2009 SCC 41 where the Supreme Court of Canada reaffirmed its earlier decision in R. v. Hape, 2007 SCC 26.
[23] As Mr. Rahman submitted the Supreme Court has consistently recognized that, when interpreting domestic legislation:
It is a well-established principle of statutory interpretation that in interpreting domestic legislation, courts should strive to arrive at a construction which conforms with Canada’s treaty obligations. See Anekwu, at para. 25
[24] Mr. Cunningham argued that the plain meaning of the phrase “subject to” is that it is a limiting phrase and it means that s. 39 is predicated on a treaty containing a provision for the transfer of items to the requesting State. If that provision is not in the treaty then there is no power to transfer. Mr. Cunningham referred to the Supreme Court of Canada’s decision; Nemeth v. Canada 2010 SCC 56, [2010] S.C.J. No. 56 in support of his position.
[25] Although I accept that in interpreting domestic legislation, courts should strive to arrive at a construction which conforms with Canada’s treaty obligations, I must start, as the Court in Anekwu did, with interpreting the words of s. 39 of the Act. In that regard I did find the Nemeth decision of assistance, by analogy, to the task before me.
[26] The issue before the court in Nemeth was whether the prohibition against the removal of an individual under s. 115(1) of IRPA prohibited extradition. The primary issue was the meaning of the term "removed from Canada." The court applied the modern approach of statutory interpretation to decide this issue.
[27] At the commencement of his analysis, Justice Cromwell for the unanimous court stated (at paras. 26 and 27):
The appellants emphasize the ordinary meaning of the words "removed from Canada" in s. 115(1) and that extradition is a form of "removal". I agree, of course, that the ordinary meaning of these words is broad enough to include removal by any means including extradition. However, according to the often repeated "modern principle" of statutory interpretation, the words used in the IRPA must be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. When this is done, it becomes clear in my view that the term "removed" has a specialized meaning in the IRPA and that it does not include removal by extradition.
Section 115 must be considered in the context of the other provisions of the statute which also deal with the subject of removal. Division 5 of Part I of the IRPA addresses "Loss of Status and Removal". The term "removal" is used in connection with the term "removal order" which is a specific order authorized by the IRPA in particular circumstances set out in detail therein: see, for example, ss. 44(2), 45(d) and 48. "Removed" and "removal", therefore, are words used in relation to particular procedures under the IRPA. This view is reinforced by the Immigration and Refugee Protection Regulations, SOR/2002-277. Section 53 of the IRPA provides that the regulations made under the IRPA may include provisions respecting "the circumstances in which a removal order shall be made or confirmed against a permanent resident or a foreign national": s. 53(b). Part 13 of the Regulations, addresses removal. Section 223 specifies that there are three types of removal orders: departure orders, exclusion orders and deportation orders. Surrender orders under the EA are not included. The linking of removal to these three types of orders further reinforces the view that the words "removed" and "removal" refer to particular processes under the IRPA. [Emphasis Added]
[28] With the assistance of my law clerk I considered several cases where the specific issue was the meaning of the phrase “subject to”. It seems that the basic principles are well established and that the cases depend to a large extent on their specific facts. What I have, therefore, considered are some of the general principles from the cases that assist in the interpretation of this phrase keeping in mind the approach taken by the court in Nemeth.
[29] The phrase “subject to” was interpreted by the Ontario Court of Appeal in Murphy v. Welsh (1991), 1991 CanLII 7253 (ON CA), 3 O.R. (3d) 182, 26 A.C.W.S. (3d) 1179, where the issue on appeal was “whether s. 180(1) of the Highway Traffic Act, R.S.O. 1980, c. 198 (HTA), requires an action on behalf of an infant injured in a motor vehicle accident to be brought within two years of the accident or whether an infant is permitted by s. 47 of the Limitations Act, R.S.O. 1980, c. 240, to bring the action within two years of attaining majority” (para. 1). Section 180(1) of the HTA commenced with: “Subject to subsections (2) and (3), no action shall be brought…” Interpreting this clause, Blair J.A. held at paras. 16-17:
16 … The narrow question becomes, what is the meaning to be attributed to the words “subject to” in s. 180(1)?
17 The meaning of the expression “subject to” in statutes was, in my opinion, correctly stated by the late Professor Elmer A. Driedger in The Composition of Legislation: Legislative Forms and Precedents, 2nd ed. (Ottawa: Supply & Services Canada, 1976), at pp. 139-40 as follows:
Subject to -- Used to assign a subordinate position to an enactment, or to pave the way for qualifications.
Where two sections conflict, and one is not merely an exception to the other, the subordinate one should be preceded by subject to; this reconciles the conflict and serves as a warning that there is more to come.
The phrase “subject to” always has a counterpart. In other words, the section containing the phrase will always specify the enactment or qualification to which it is subordinate. In s. 180(1), the words “subject to” are followed only by a reference to subss. (2) and (3). In my opinion, the ordinary interpretation of this provision is that s. 180(1) is subordinate only to subss. (2) and (3). Had the legislature intended to restrict the operation of s. 180(1) further, it could have included s. 47 of the Limitations Act or any other statutory provision in the exceptions named after the words “subject to”: see Hinton Electric Co. v. Bank of Montreal (1903), 9 B.C.R. 545 (S.C.) at p. 550. It did not do so and, therefore, I find that the operation of s. 180(1) is not subject to s. 47 of the Limitations Act. (Emphasis added)
[30] This decision by the Court of Appeal was reversed by the Supreme Court in Murphy v. Welsh 1993 CanLII 59 (SCC), [1993] 2 S.C.R. 1069, 65 O.A.C. 103. The Supreme Court did not reject outright the Court of Appeal’s conception of “subject to,” but instead found that “subject to” did not preclude the two provisions both being valid to the extent to which they could stand together.
[31] Using this approach, s. 39(1) of the Act would be considered subordinate to the Treaty which provides some support to Mr. Rahman’s position. However, it could also be said that this still begs the question: in what respect is s. 39(1) subordinate to the Treaty?
[32] The definition of the phrase “subject to” from the Concise Oxford English Dictionary, 11th ed., Oxford University Press (2004), which is a source that the courts have also considered in statutory interpretation cases, states that the meaning of the phrase “subject to” includes “dependent or conditional upon” or “under the control or authority of” (adjectives) or “conditionally upon” (adverb). Using this meaning of the phrase, Mr. Cunningham’s interpretation of the phrase would prevail.
[33] Even if I could determine a plain meaning of the phrase “subject to”, which in this context I find is difficult, the modern principles of statutory interpretation also require an examination of the other provisions in the Act.
[34] As Mr. Cunningham pointed out, s. 33(4) of the Act starts with the words “Unless a relevant extradition agreement provides otherwise”. Another example is s. 66(3)(b) of the Act where the subsection ends with the words: “unless a relevant extradition agreement provides for another time limit.” In both examples, the language is clear that the relevant treaty supersedes the Act.
[35] It is Mr. Cunningham’s position that if Parliament intended the Treaty to prevail over s. 39 it would have used language similar to these sections. I agree with that submission.
[36] Mr. Rahman also submitted that a strict interpretation of s. 39 (1) could frustrate Canada’s international obligations under the Treaty, relying as I have already stated on the principles from Hape. For example to the extent the Treaty includes “all articles acquired as a result of the offence” Mr. Cunningham’s interpretation would not permit the sending of items in situations where the requesting State does not intend to prosecute. Furthermore Mr. Rahman submitted, Canada's obligation to send evidence to its extradition partners can be found in a number of its extradition agreements which like the U.S.-Canada Treaty, do not refer only to property seized at the time of the arrest of the person sought.
[37] The first problem with this submission, however, is the language of Article 15(1) of the Treaty which opens with the words “[To] the extent permitted under the law of the requested State”. Mr. Rahman submitted that this is not a reference to the Act but rather a reference to any other domestic laws governing the seizure of evidence that apply including the Charter. I do not accept that submission. I see no reason why this opening language in Article 15 would not include a reference to the Act.
[38] Furthermore, as submitted by Mr. Cunningham, Mr. Rahman’s interpretation of the opening words of Article 15 is that they only modify the legality of the finding of the items. Since Article 15 provides for both the finding and the surrender of the items to the requesting State, the opening words must modify both the finding and surrender of evidence; in other words the entire article. This supports Mr. Cunningham’s interpretation of s. 39(1) of the Act.
[39] In any event, there could be no serious argument that Canada’s Treaty obligations might be completely frustrated by a strict interpretation of s. 39(1) of the Act. There is no dispute that the United States could request that Canada provide assistance in obtaining the Seized Items pursuant to s. 17(2) of the MLACMA, which permits an ex parte application to a judge for an order under s. 18(1) for the gathering of evidence (a “Gathering Order”). In this case the items have already been “gathered” so presumably the United States would only have to seek a “Sending Order” pursuant to s. 20(1) of the MLACMA.
[40] Section 10 of the MLACMA adopts the Criminal Code in respect of a search or a seizure under that Act. This ensures that the search and seizure is constitutional before it happens and puts any Charter concerns upfront; at least in this case where there would no longer be any basis to proceed with such an application ex parte or the person affected moves to set aside an order made ex parte.
[41] As I understand it, this process under the MLACMA is used more often than s. 39 of the Act. Mr. Rahman submitted this is because the evidence gets to the requesting State sooner. In this case if the order is granted the evidence will not go until Mr. Singh is surrendered. He suggested this is why one does not see a lot of s. 39 cases. In fact, as I have already stated, counsel were only able to find one.
[42] The fact that the United States could resort to the MLACMA of course does not prevent the Attorney General from seeking an order pursuant to s. 39(1) of the Act. As Mr. Rahman pointed out, there could be two ways in which the Seized Items could be sent to the United States were his argument to prevail.
[43] Although I accept that position, for the reasons stated, in my view it is not necessary to distort the meaning of s. 39(1) in order to comply with any obligations created by the Treaty. I find that the phrase “subject to a relevant extradition agreement” in s. 39(1) means that s. 39 is predicated on a treaty containing a provision for the transfer of evidence to the requesting State. Since Article 15 of the Treaty has such a provision then this application is governed by s. 39(1) of the Act. The question that remains, however, is the meaning of the word “arrest” in s. 39(1). Does it refer to any lawful arrest as submitted by Mr. Rahman or only an arrest under the Act as submitted by Mr. Cunningham?
Meaning of “arrest” in s. 39(1) of the Act
[44] Mr. Rahman’s alternative argument was that if the items have to be found pursuant to an arrest, looking to the Treaty that would mean any lawful arrest, not only an arrest under the Act. As discussed above, the Treaty uses broader language relating to the surrender of property to the requesting State than does the Act. Mr. Rahman argued that even if an application to send evidence requires that the evidence be seized pursuant to an "arrest," the meaning of that term in s. 39 of the Act must be interpreted broadly and in a manner consistent with the Treaty and that Canada's obligation under its many extradition treaties in order to give proper effect to Canada's international obligations. It is his position that the fact that a number of Canada's extradition treaties do not even use the term "arrest" suggests that the narrow approach suggested by Mr. Cunningham is inconsistent with Canada's international obligations. It is his position that any lawful arrest should qualify as an arrest under s. 39.
[45] I start with the plain wording of s. 39(1) and in this case, the meaning of the word “arrest”. The term “arrest” in s. 39(1), viewed in isolation, is broad enough to include any arrest as submitted by Mr. Rahman. However, I must consider this meaning in the context of the entire statute.
[46] The term "arrest" is used elsewhere in relation to particular powers under the Act and in particular ss. 12 to 16 of the Act, which permit the issuance of a warrant pursuant to a request for a provisional arrest (ss. 12 and 13) or after the Minister has issued an Authority to Proceed (s. 16). The term “arrest” is used in connection with either procedure for the issuance of a warrant and both provisions refer to the Criminal Code. Mr. Cunningham argues that by analogy to Nemeth, as with the term “removal” under the IRPA, the linking of the term “arrest” to other powers in the Act suggest that the word “arrest” refers to an arrest under the Act. I agree.
[47] Mr. Cunningham also relies on references in the Act to the IRPA and to other references to the Criminal Code. In Nemeth Justice Cromwell further stated at para. 29:
- It is also worth noting that while s. 115 of the IRPA does not refer to extradition, it is mentioned elsewhere in the IRPA. So, as we shall see shortly, s. 105 of the IRPA deals explicitly with certain aspects of the interaction of extradition proceedings and refugee claims and s. 112(2)(a) of the IRPA precludes persons from applying for protection under s. 112(1) when they have been ordered removed from Canada and have extradition proceedings pending against them. The IRPA, therefore, in certain instances expressly deals with the interplay between extradition and the refugee and the removal process. The fact that it does, supports an inference that when Parliament intended to address that interplay, it did so expressly. There is, as noted, no express provision in the IRPA dealing with the extradition of refugees. [Emphasis Added]
[48] The Act adopts a number of powers and procedures from the Criminal Code (where many of the powers to arrest are codified). The procedures under s. 570(4) of the Criminal Code are adopted in s. 16(3) of the Act; the procedures under s. 522(2) of the Criminal Code are adopted in s. 18(1)(a)(i); the powers and procedures under Part XVI of the Criminal Code are adopted under s. 19 of the Act; the powers under Part XVIII of the Criminal Code are adopted under s. 24(2) of the Act; the power to compel a witness under ss. 698 to 708 is adopted under s. 28 of the Act; and finally, the powers and procedures of appeal contained in the Criminal Code are adopted under s. 52 of the Act. As in Nemeth the fact that in certain instances the Act refers to the Criminal Code supports an inference that when Parliament intended to include the Criminal Code it did so expressly. Subsection 39 of the Act makes no reference to the Criminal Code.
[49] There is also interplay between the Act and the IRPA which is addressed in ss. 40, 48 and 75 of the Act. Again by analogy to Nemeth, the explicit reference to the IRPA in other provisions of the Act supports an inference that where Parliament intended to refer to certain powers or procedures it expressly did so. Since s. 39(1) makes no reference to an arrest under the Criminal Code or the IRPA, it suggests that it was not intended by Parliament to include arrests under the Criminal Code or the IRPA.
[50] Both counsel made submissions as to why the approach taken by the other would lead to absurd results. I have already deal with Mr. Rahman’s submissions that a strict interpretation of s. 39 of the Act would frustrate Canada’s obligations under the Treaty. He also submitted that Mr. Cunningham’s interpretation would lead to absurd results in that it is not uncommon for a fugitive to come to the attention of authorities and be arrested lawfully under a statute other than the Act and that fugitive is then arrested later under the Act. The items in the fugitive’s possession would of course be seized at the time of the first arrest. He submitted that a broader interpretation of the term "arrest" recognizes the many different situations in which fugitive offenders may be arrested and that not all fugitive offenders come to the authorities' attention through an extradition request. He added that a fugitive, who is only discovered by accident because he has gone to great lengths to hide from authorities, would not have been "arrested" within the meaning of s. 39. On the other hand, a person sought who is easier to find because he is resident in Canada, and for whom authorities could easily execute a warrant, would be "arrested." It is his position that this narrow interpretation of the term "arrest" advocated by Mr. Cunningham yields absurd results.
[51] By way of example Mr. Rahman referred to R. v. Viscomi, 2015 ONSC 61, [2015] O.J. No. 113 (S.C.J.) which considered the constitutionality of ss. 18 and 20 of the MLACMA. In that case both Mr. Viscomi and another applicant Mr. Lane were initially charged for the same conduct as extradition was ultimately sought for. After the extradition proceeding commenced, the domestic proceedings were discontinued. Mr. Rahman submitted it would be absurd since they were arrested under the Criminal Code here for the same conduct as the extradition request, that the items seized at the time of their initial arrest could not be sent to the requesting State pursuant to the Act. That, however, is not what happened as while the extradition hearing was in its early stages and before it had been heard, a MLACMA application was brought ex parte and a Gathering Order and a Sending Order were made.
[52] Although I agree this is not an uncommon scenario, as Mr. Rahman fairly stated, in most cases the MLACMA is used where extradition has begun or the person has been surrendered. I, therefore, do not agree that Mr. Cunningham’s interpretation would lead to absurd results.
[53] Mr. Cunningham submitted that a broad interpretation of “arrest” would lead to absurd results due to the limitations on the power to search incidental to arrest (i.e. it must be related to the reasons for arrest). He argued that seizures made upon the arrest of a person are authorized by the common law power to search incident to arrest. The common law power to arrest would not permit the search or seizure of items relevant to extradition proceedings, unless the arrest was authorized under the Act. On the other hand, the power to search for items relevant to extradition proceedings is contingent on the arrest being for the purpose of extradition. It is his position that an interpretation of s. 39 that permits the transfer of items seized pursuant to any arrest would recognize a power to transfer items where there is no corresponding power to search for or seize any items during the arrest and that this certainly could not have been intended by Parliament.
[54] When Mr. Singh was arrested he could not have been lawfully searched for evidence relevant to the Act. As Mr. Rahman argued in reply, although the power to search has to be relevant to the offence for which someone is arrested, what is discovered does not have to be relevant to that arrest. Evidence of another offence can be found.
[55] I accept Mr. Rahman’s submission that a broad interpretation of “arrest” would not lead to absurd results since the search would still have to be lawful and incident to the arrest. However this does not advance his interpretation of s. 39 of the Act because it would not always be the case that the items found as a result of an arrest under the Criminal Code or the IRPA would be relevant to the extradition request. In this case there is arguably an overlap but that will not be true in all cases.
[56] For these reasons I find that the term “arrest” in s. 39(1) of the Act refers to an arrest made pursuant to the Act.
Disposition
[57] For these reasons the Attorney General’s application for an order pursuant to s. 39(1) of the Act to send the items seized at the time of Mr. Singh’s arrest under the IRPA is dismissed.
N. SPIES J.
Released: June 5, 2015
CITATION: United States of America v. Singh, 2015 ONSC 3648
COURT FILE NO.: 329/13
DATE: 20150605
ONTARIO
SUPERIOR COURT OF JUSTICE
(TORONTO REGION)
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 39 OF THE EXTRADITION ACT, S.C. 1999, c. 18, FOR AN ORDER THAT ITEMS SEIZED AT ARREST BE TRANSFERRED TO THE UNITED STATES OF AMERICA ON SURRENDER
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Applicant
– and –
JASJIT VIRDI SINGH a.k.a. “JASJIT SINGH VIRDI”
Respondent
REASONS FOR DECISION
SPIES J.
Released: June 5, 2015
[^1]: The official copy of the Treaty on the Government of Canada website does not have the word “To” at the start of the clause.