SUPERIOR COURT OF JUSTICE
CITATION: United States of America v. Latina, 2015 ONSC 842
COURT FILE NO.: 29/14
DATE: 20150206
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE
UNITED STATES OF AMERICA
- and -
PAUL LATINA
Heather J. Graham and Andrea Wheeler,
for the respondent, the Attorney General
of Canada
Wayne Cunningham,
for the applicant/accused, Paul Latina
HEARD: Oct. 24 and Dec. 18-19, 2014
K.L. Campbell J.:
I
Overview
[1] The United States of America seeks the extradition of the applicant, Paul Latina, on a single charge of possession of child pornography. The offence is alleged to have been committed by the applicant in St. Louis County, Missouri in mid-July of 2013. Based upon the Record of the Case for the Prosecution, as certified by the Assistant Prosecuting Attorney in Missouri, I am satisfied that there is sufficient evidence to justify an order committing the applicant to extradition. Indeed, the parties have expressly agreed that the evidence of the alleged offence is sufficient to justify the requested committal order.
[2] The only issue between the parties is whether these extradition proceedings should be stayed on the basis that the conduct of the American and Canadian authorities, in their initial collective efforts to arrest the applicant and deport him from Canada, amounted to an abuse of process and/or a violation of the applicant’s constitutional rights under s. 7 of the Canadian Charter of Rights and Freedoms. The applicant contends that the American authorities knew that he was a Canadian citizen and deliberately concealed this fact from the Canadian authorities in initially seeking his arrest and deportation. The applicant also argues that the Canadian authorities failed to properly investigate the matter, electing instead to rely entirely upon inaccurate information from the American authorities. In the result, the applicant seeks a permanent stay of the extradition proceedings.
[3] For the following reasons, I reject this argument, and dismiss the stay application. In my view there is no proper justification for staying the extradition proceedings against the applicant in this case. Accordingly, there must be an order committing the applicant for extradition.
II
The Factual Background
[4] The applicant is now 37 years of age. He was born in the United States. In March of 2003, the applicant was convicted of a sexual offence in relation to a child in the state of Colorado and, as part of his sentence, the applicant was ordered to participate in the state sex offender registration program.
[5] Subsequently, in 2011 the applicant moved to St. Louis County, Missouri, where he completed his sex offender registration requirements with the St. Louis County Police Department. The applicant’s contact with this police department was through Detective Andrew Whelehon.
[6] In late March of 2013, the applicant was caught, through an undercover police operation, using the internet to attempt to lure someone he believed to be a 14-year-old female for sexual purposes. As part of the police investigation in relation to this offence, a search warrant was executed at the applicant’s residence, and he was discovered to be in possession of child pornography. In the result, in early April of 2013, the applicant was released from custody on a bond while awaiting trial on charges of: (1) failing to register as a sex offender; (2) attempted sexual misconduct with a child under 15 years of age; and (3) possession of child pornography.
[7] While living in the United States for the decade between 2003 and 2013, the applicant identified himself, and was known to law enforcement personnel, as a United States citizen.
[8] In April of 2013, the applicant was notified by email that he had been granted Canadian citizenship. The applicant’s mother was a Canadian citizen, and the applicant had applied for Canadian citizenship in June of 2012, based upon her citizenship.
[9] Twice in May of 2013, the applicant attended at the St. Louis County, Missouri Police Department and met with Detective Whelehon for the purpose of updating his sex offender registration documents. On each of these two occasions, the applicant indicated, in writing, that he possessed dual American-Canadian citizenship.
[10] On July 16, 2013, acting on information from a confidential informant, the police obtained another search warrant for the applicant’s residence. Again, this search revealed that the applicant was in possession of a significant quantity of child pornography. Warrants were issued for the arrest of the applicant in the United States.
[11] On July 17, 2013, within hours of the execution of this search warrant, the applicant entered Canada via the Blue Water Bridge in Sarnia, Ontario. The Canadian Border Services Agency (CBSA) officer at this location noted only that the vehicle entering Canada contained one American resident who intended to stay in Canada longer than 48 hours. At some point during his flight to Canada, the applicant cut off the electronic bracelet that he was required to wear as part of his judicial interim release order in the United States. Leaving the United States was also in violation of the terms of his bail.
[12] On July 25, 2013, Jared Corn, an Intelligence Analyst for the Missouri State Patrol, contacted Martin Davies, a CBSA officer in Calgary, Alberta, in connection with the applicant’s flight to Canada. Officer Corn advised Officer Davies that the applicant was a “US citizen and resident of Missouri,” who had a significant criminal record for “child sex offences” and was a “registered sex offender” in the United States. He also advised Officer Davies that the applicant had made comments about “going to live in Canada” to avoid the United States sex offender registry. He provided Officer Davies with certain details about the applicant, including his date of birth, his social security number (SSN), his Federal Bureau of Investigation (FBI) number, and details about the applicant’s motor vehicle.
[13] Initially, the American authorities did not advise the Canadian authorities about the applicant’s claim of dual citizenship. The only American police officer who knew about the applicant’s dual citizenship was Detective Whelehon of the St. Louis County Police Department. Indeed, the Canadian authorities thought that the applicant was inadmissible to Canada and could be processed and deported back to the United States. Officer Davies determined, also on July 25, 2013, that a Canadian passport had never been applied for, or issued to, the applicant.
[14] As a result of receiving this information, on July 25, 2013 the CBSA entered a nationwide “lookout” for the applicant and his motor vehicle in Canada. This CBSA “lookout” indicated that, if the applicant was encountered, there should be a “progressive secondary examination” with a “focus on child pornography” and an examination for “immigration admissibility” as the applicant was “believed to be criminally inadmissible” to Canada.
[15] On August 1, 2013, Mark Ellis, an Intelligence Officer with the Southern Ontario Region of the CBSA, sought further information from the American authorities in relation to the applicant. He wanted to know the charges facing the applicant in the United States, and whether they had any information as to where the applicant might be headed in Canada. Officer Ellis indicated that he had an “alert” ready to be issued, but he wanted to ensure the accuracy of his information. Dave Wilborn, a Senior Inspector and Sex Offender Investigations Coordinator for the United States Marshals Office in Missouri, provided the information about the charges against the applicant, and indicated that he was unaware of the applicant having any family or friends in Canada.
[16] On August 15, 2013, the United States authorities learned that the applicant was in the Toronto area, as he had used his bank debit card a couple of times in that location. They passed this information along to the Canadian authorities, and sought their assistance in the apprehension of the applicant.
[17] In the result, on August 16, 2013, the Inland Enforcement unit of the CBSA issued an immigration warrant for the arrest of the applicant. This warrant indicated that, pursuant to s. 55(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), there were reasonable grounds to believe that the applicant was inadmissible to Canada, was a danger to the public, and was unlikely to appear for an admissibility hearing.
[18] At 1:40 p.m. on August 16, 2013, the applicant was arrested in Milton, Ontario on this warrant. At the time of his arrest, the applicant was in possession of his United States passport. When the applicant spoke to a CBSA official at 2:55 p.m., and was told that he was being detained for an admissibility hearing, the applicant replied that he was a Canadian citizen and he produced his long form citizenship document. At 3:15 p.m., after it was determined that this citizenship document was legitimate, the applicant was released from custody and given a taxi ride home.
[19] Subsequently, prosecutors in St. Louis, Missouri immediately sought the applicant’s extradition from Canada, and requested a provisional arrest warrant under the Extradition Act, S.C. 1999, c. 18. The “Urgency Statement” provided by the Missouri Assistant Prosecuting Attorney on August 16, 2013, noted that the applicant was released from custody “when it was discovered that he was also a Canadian citizen,” and that, accordingly, the applicant was aware that he was being pursued by the American authorities and might try to avoid apprehension. The provisional warrant was issued and, at approximately 9:55 a.m. on August 17, 2013, the applicant was again arrested. The applicant has remained in custody since that arrest pending his extradition hearing.
III
The Generally Applicable Legal Principles
[20] The legal principles that govern an application to stay extradition proceedings are not controversial, and were reiterated by the Court of Appeal for Ontario recently in United States of America v. Lane, 2014 ONCA 506, 121 O.R. (3d) 721, at paras 45-51. Those principles are, essentially, as follows.
[21] While an extradition judge does not have an inherent jurisdiction to consider issues under the Charter of Rights, an extradition judge does have the statutory jurisdiction to deal with such issues pursuant to s. 25 of the Extradition Act, provided that the Charter issues “pertain directly to the circumscribed issues relevant at the committal stage of the extradition process.” See United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 57. In other words, where a stay of the extradition proceedings is sought as a remedy for an alleged “abuse of process” that has resulted in a Charter violation, the extradition judge has jurisdiction to determine the issue where there is some “nexus between the conduct alleged to constitute an abuse of process and the committal hearing itself.” See United States of America v. Khadr, 2011 ONCA 358, 106 O.R. (3d) 449, at para. 45, leave refused, [2011] S.C.C.A. No. 316.
[22] Moreover, based upon the existing jurisprudence, the necessary “nexus” between the alleged abusive misconduct and the committal hearing will be found to exist in at least the following three circumstances: (1) where the evidence introduced at the committal hearing was obtained through the misconduct of the requesting state, as in United States of America v. Khadr; (2) where threats or inducements are made by state authorities in an effort to try to force the fugitive sought to abandon the right to a committal hearing, as in United States of America v. Cobb, 2001 SCC 19, [2001] 1 SCR 587; or (3) where the committal hearing itself was the result of misconduct by the requesting state, as in United States of America v. Tollman (2006), 2006 31732 (ON SC), 212 C.C.C. (3d) 511, [2006] O.J. No. 3672, (S.C.J.).
[23] In this respect it is important to recall that, as Arbour J. stated in giving the judgment of the court in United States of America v. Cobb, at para. 35:
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.
[24] Nevertheless, as the Supreme Court of Canada re-affirmed in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 32, 40-41, it will only be legally appropriate to stay the proceedings where: (1) there has been prejudice to the accused’s right to a fair trial or the integrity of the justice system, that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”; (2) there is no other alternative remedy reasonably capable of redressing the prejudice; and, where (after steps one and two) there is still uncertainty over whether a stay is warranted, (3) where the court concludes that the proceedings should be stayed after balancing the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits.” See also R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1, at paras. 63, 73; Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391, 118 C.C.C. (3d) 443; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 53-57.
[25] There are two types of prejudice that can result in the granting of a stay of proceedings, namely: (1) prejudice to the accused’s right to a fair trial; and (2) prejudice to the integrity of the justice system. Misconduct which compromises trial fairness is the “main category” of the abuse of process that will lead to a stay of proceedings, whereas misconduct that risks undermining the integrity of the judicial process is the “residual category” of abuse of process that will lead to a stay of proceedings. The legal test is the same for both categories, but the test will often play out differently depending upon which category is invoked. See United States of America v. Lane, at paras. 49-50; R. v. O’Connor, at para. 73; R. v. Babos, at paras. 31-33, 39, 45.
[26] In the present case there is no allegation of any prejudice to the accused’s right to a fair trial. The request for a stay of proceedings in this case is based entirely upon the contention that the alleged misconduct of the various state authorities has caused prejudice to the integrity of the justice system (i.e. invoking the “residual category” of prejudice). Accordingly, the key issue in the present case is whether the state authorities have engaged in misconduct that is so offensive to societal notions of fair play and decency that to permit an extradition hearing (and potentially a criminal trial) to proceed would contravene fundamental notions of justice and undermine the integrity of the justice system. In other words, it must be determined whether the alleged state misconduct has been so egregious and harmful to the integrity of the justice system that having an extradition hearing and trial – even entirely fair proceedings – would suggest that the justice system condones misconduct that offends society’s sense of fair play and decency. See R. v. Babos, at paras. 35-38, 40-44; United States of America v. Lane, at para. 50.
[27] Significantly, the appellate court jurisprudence has consistently repeated that the “prospective” remedy of a stay of proceedings is the “ultimate,” “final” and “most drastic” remedy, which permanently concludes the case without any hearing on the merits. Accordingly, a stay of proceedings is reserved for only those “clearest of cases” where the “very high threshold” for abuse of process is reached. It will be only in “exceptional” or “relatively very rare” cases that state misconduct will be “so egregious that the mere fact of going forward in the light of it will be offensive.” See R. v. O’Connor, at para. 68; Canada (Minister of Citizenship and Immigration) v. Tobiass, at para. 91; R. v. Babos, at paras. 35-47.
IV
The Positions of the Parties
[28] The applicant argues that the conduct of the American and Canadian authorities constitutes an abuse of process and/or a violation of his rights guaranteed by s. 7 of the Charter. More particularly, the applicant argues: (1) that the American authorities intentionally withheld information from the Canadian authorities regarding his Canadian citizenship, so as to improperly manipulate immigration deportation proceedings and circumvent the necessary extradition proceedings; and (2) that the Canadian authorities negligently failed to conduct an independent investigation into the applicant’s admissibility into Canada, and thereby permitted immigration proceedings to become no more than disguised extradition proceedings.
[29] The applicant argues that while some international cooperation between the American and Canadian authorities is perfectly appropriate, it must be premised on good faith on both sides of the border, and that immigration proceedings must only be instituted for proper purposes. The applicant contends that, in this case, the American authorities declined to provide the Canadian authorities with a very important piece of information, namely, that he was a Canadian citizen. This was the applicant’s “primary” allegation of abuse of process. Further, the Canadian authorities failed to exercise proper diligence in their own investigative efforts because if they had conducted the proper database search, they would have themselves discovered that he was a Canadian citizen. This negligence by the Canadian authorities “aggravated” the abuse of process by the American authorities. However, the applicant argues that even if the Canadian authorities operated in good faith, the extradition proceedings should still be stayed as the failure by the American authorities to disclose his Canadian citizenship so offends society’s sense of fair play and decency that it undermines the integrity of the judicial system.
[30] The respondent argues, on the other hand, that the applicant has failed to demonstrate that this is one of the clearest of cases of abuse of process warranting the drastic remedy of a stay of proceedings. More particularly, the respondent contends: (1) that the applicant has suffered no actual prejudice as a result of any state action; (2) that the applicant’s brief period of custody under the immigration warrant, before it was discovered that the applicant was a Canadian citizen, does not prejudice the integrity of the justice system, especially given that the police authorities – both in the United States and in Canada – acted in good faith throughout this case; and (3) that the great public interest in an extradition hearing (and potential criminal trial) on the merits of the case requires that the proceedings not be stayed, but be allowed to continue.
V
Analysis
- The Conduct of the American Authorities
a. Introduction
[31] As I have indicated, the applicant contends that the American law enforcement authorities were actively engaged in improperly seeking his return to the United States through immigration proceedings, while at the same time dishonestly concealing the fact of his Canadian citizenship from the Canadian authorities. In my view, there is no credible or persuasive evidence in support of that position. While the applicant advised one Missouri police officer, namely, his sex offender registry contact in St. Louis County, that he had dual citizenship in the United States and Canada, there is no evidence that this information was initially passed along to the other American authorities more actively engaged in seeking the arrest and return of the applicant. Further, the evidence suggests that the American law enforcement authorities were skeptical of this claim, and doubted that the applicant had Canadian citizenship. In any event, I am satisfied that the evidence does not establish that the American authorities were generally aware of the applicant’s dual citizenship when they were seeking his deportation, and were deliberately keeping this information from the Canadian authorities.
b. The Evidence Does Not Establish Any Deliberate Concealment of the
Applicant’s Dual Citizenship on the Part of the American Authorities
[32] As I have indicated, in my opinion the applicant has failed to establish that the American authorities: (1) knew the applicant was a Canadian citizen; and (2) intentionally tried to conceal this fact from the Canadian authorities, in an effort to have the Canadian authorities unlawfully deport him back to the United States. In reaching this conclusion, I have considered all of the following circumstances:
• For at least the ten year period between 2003 and 2013 the applicant lived only in the United States. Further, during this period of time the applicant only identified himself as being an American citizen.
• The applicant was not himself first told that he had been granted Canadian citizenship until April of 2013. This took place after his arrest on his other pending criminal charges in the United States (i.e. the charges commenced in March of 2013 for failing to register as a sex offender, attempted sexual misconduct with a child under 15 years of age, and possession of child pornography).
• When the applicant crossed the border into Canada on July 17, 2013, shortly after the police executed their second search warrant at his Missouri residential premises, he was driving a vehicle bearing a Missouri state disabled veteran’s license plate, and he identified himself to the border authorities as an American.
• In late July of 2013, the American police authorities confirmed that that the applicant had never been issued a Canadian passport, but subsequent correspondence, in early August of 2013, suggested that they suspected that the applicant may have another passport under a false name, as they believed that the applicant had been using a false name or alias in Canada.
• Correspondence emanating from the American police authorities in early August of 2013 suggested that they were unaware of any family or friends that the applicant might have in Canada.
• Police reports that the American police authorities were working with in relation to the applicant, listed the applicant’s citizenship as only American. For example, the National Crime Information Centre (NCIC), maintained by the FBI in the United States, listed the applicant’s citizenship as only American.
• In a Memorandum dated August 16, 2013, written by the St. Louis County Assistant Prosecuting Attorney, providing an “Urgency Statement” about this case, and seeking the apprehension of the applicant, the prosecutor indicated that, following the execution of the search warrant at his residence, the applicant “disappeared” from the St. Louis County area, and it was believed by law enforcement that he “may attempt to enter Canada as he purportedly claimed to be a Canadian citizen” [emphasis added]. This language suggested that the American law enforcement authorities either did not believe the applicant’s “claim” of Canadian citizenship, or were at least very skeptical as to the truth of this dual citizenship claim.
c. The Testimony of the Applicant
[33] The applicant testified that when he moved from Colorado to Missouri he was still required to comply with his sex offender registry obligations, and report quarterly to the Missouri State Highway Patrol. Indeed, the applicant produced two sex offender registration documents which demonstrated his efforts to comply with his obligations. First, the applicant produced a “90 day” sex offender registration document, dated May 1, 2013, that was signed by the applicant and Detective Whelehon, and that indicated the applicant’s citizenship was “US/Canada.” Second, the applicant produced a “vehicle change” sex offender registration document, dated May 20, 2013, that was also signed by the applicant and Detective Whelehon, and which also indicated that the applicant’s citizenship was “US/Canada.” Accordingly, it was clear that, in May of 2013, the applicant told Detective Whelehon about his dual American/Canadian citizenship.
[34] The applicant testified, however, that he had actually told Detective Whelehon about his acquisition of Canadian citizenship in early April of 2013. The applicant explained that, within a few days of receiving his Canadian citizenship document in the mail, he arranged to meet with Detective Whelehon to make a change to his registration. According to the applicant, during this meeting, he showed the officer his official Canadian citizenship form, and told the officer all about how he had secured his dual citizenship through his mother who was a Canadian citizen. The applicant also testified that he told Detective Whelehon that he had family in northern Alberta, and talked to him about going there one day for a visit. The applicant testified that while they completed a registration form noting this change of his citizenship status, he was unable to produce that document, explaining that he must have either left it in his home in Missouri, or lost the document. The applicant testified that while he realized that there was no legal requirement that he advise the officer of his citizenship change, he wanted to provide this information about his changed citizenship status in any event.
[35] I do not accept the testimony of the applicant about his alleged meeting with Detective Whelehon in early April of 2013. Indeed, I find that there was no such meeting. While the applicant was able to produce his other sex offender registration documents, he was unable to produce any documentation to support the alleged April meeting. If there had been such an April meeting, during which documentation was created noting his changed citizenship status, the applicant should have been able to produce that supporting documentation. He was not. I find that the applicant invented this earlier meeting to artificially improve his assertion that the American authorities were well aware of his Canadian citizenship and his family connections to Canada. Significantly, while the applicant maintained in his testimony that he had extended family in Alberta, he could not name a single family member, or even the name of the town where they allegedly resided in Alberta.
d. Analysis of the Evidence
[36] The only American police official who had been provided with information about the applicant’s Canadian citizenship was Detective Whelehon. In May of 2013, during the course of two meetings with Detective Whelehon, which took place in connection with the applicant’s sex offender registry obligations, the applicant completed documentation that revealed, amongst other things, that the applicant had a dual “US/Canada” citizenship. Detective Whelehon had but slight involvement in any of the international law enforcement discussions that took place between the American and Canadian authorities in July and August of 2013 regarding the applicant. However, Detective Whelehon did not pass on, to the Canadian authorities, his knowledge of the Applicant’s dual citizenship.
[37] His failure in this regard was not, however, as a result of any bad faith or improper motive, or any deliberate attempt to deceive the Canadian authorities. In my view, it is entirely likely that this information was not passed along by Detective Whelehon, a local St. Louis County police officer, because he did not appreciate its significance to the potential deportation or extradition of the applicant from Canada. There is certainly no evidence that Detective Whelehon was well versed in the legal nuances of international obligations concerning immigration proceedings versus extradition proceedings.
[38] Accordingly, I decline to infer any bad faith or improper motive to Detective Whelehon with respect to his failure to expressly advise the Canadian authorities, in his limited contact with them, that the applicant had advised him that he had dual “US/Canada” citizenship. I am even less inclined to conclude that the American law enforcement authorities more generally were possessed of any bad faith or improper motives in seeking the return of the applicant. There is no evidence that any other member of the American authorities was even aware of the applicant’s dual citizenship. In the result, I cannot conclude that the American authorities were covertly trying to have the applicant improperly deported from Canada notwithstanding their knowledge of his Canadian citizenship, by keeping their knowledge from the Canadian authorities.
[39] This case is quite unlike United States of America v. Tollman, relied upon by the applicant. In that case, the court found “substantial” and “overwhelming evidence” that the American authorities had “deliberately set out to thwart the Canadian extradition process” by attempting to manipulate Canadian immigration proceedings, repeatedly directing the Canadian police authorities to arrest the fugitive and deliver him to the border so that the nuisance of formal extradition proceedings could be avoided. The American authorities sought to deny the accused fugitive the protections afforded under the Extradition Act. The court found that this improper conduct was an affront to the processes of the court that could not be condoned, and that disentitled the foreign state any relief under the Extradition Act. The present case lacks any such evidence. The applicant has simply not established that the American law enforcement authorities knew that the applicant had recently acquired Canadian citizenship and decided to dishonestly conceal it from the Canadian authorities to avoid the formality of extradition proceedings, thereby improperly manipulating immigration proceedings.
[40] Further, in this case there is no evidence that the American authorities knew that individuals with dual American/Canadian citizenship could not be deported from Canada to the United States. Nor is there any evidence that the American authorities thought that such dual citizenship could not be easily and quickly discovered and confirmed by the Canadian authorities. Nor is there any evidence that the American authorities thought that the Canadian authorities would simply quickly deport the applicant, purely on their instructions, and without any independent investigation of their legal ability to do so. In the absence of such evidence, it is difficult to understand how any of the American authorities could realistically have thought that they might be able to dupe the Canadian authorities into immediately illegally deporting a Canadian citizen.
[41] In the present case, the applicant was, in fact, released from custody just 95 minutes after his arrest on the immigration warrant when the Canadian police authorities discovered from the applicant himself, and were able to confirm, that the applicant possessed Canadian citizenship. However, had the applicant’s citizenship status not been discovered with such dispatch, it would inevitably have been eventually discovered at some point early in the deportation process, and would have similarly resulted in the timely release of the applicant. The inevitable release of the applicant following his arrest on the immigration warrant, upon discovery of his Canadian citizenship, was hardly to the strategic advantage of the American law enforcement authorities. Rather, it only provided the applicant with an opportunity, at least potentially, to escape apprehension, realizing that his specific Canadian location had been discovered by the American law enforcement authorities who were hunting for him and trying to have him arrested and detained.
[42] In summary, based upon all of the evidence in the present case, I am simply not satisfied that the American authorities generally knew of the applicant’s recently bestowed Canadian citizenship and sought to deliberately conceal his Canadian citizenship from the Canadian authorities, or were in any other way engaged in improperly seeking the applicant’s return to the United States through deportation proceedings. While Detective Whelehon was certainly aware, in May of 2013, that the applicant claimed to have dual citizenship, it is unlikely that Detective Whelehon understood the significance of the information, and the evidence suggests that the American authorities always remained skeptical about the accuracy of this claim. Moreover, in failing to immediately alert the Canadian authorities as to this claim of dual citizenship, I am satisfied that the American authorities were not intentionally seeking to hide relevant information from the Canadian authorities.
- The Conduct of the Canadian Authorities
a. Introduction
[43] The applicant also contends that the Canadian law enforcement authorities participated in an abuse of process as they engaged the immigration process in bad faith, and in an effort to improperly deport the applicant. The applicant argues that, had the Canadian police authorities reasonably conducted a professional and independent investigation, instead of relying wholly upon the American police authorities and, in effect, acting as their conduit or proxy in Canada, they would have quickly discovered the applicant’s Canadian citizenship, and not permitted immigration proceedings to become disguised extradition proceedings.
[44] It is fair to observe that if the Canadian authorities had searched their “Global Case Management System” (GCMS) database, they would have immediately discovered that the applicant, in fact, possessed dual citizenship. This reality was, unfortunately, not revealed by their checks of their “Field Operations Support System” (FOSS) database. This was a mistake on their part, and the Canadian authorities candidly acknowledge that this was a “hard lesson learned.” This is not, however, evidence of an abuse of process. The fact remains that the Canadian authorities were simply not aware of the applicant’s relatively recent application for Canadian citizenship. The Canadian authorities reasonably relied, at least in part, on the intelligence information that they received from the American authorities that the applicant was an American citizen, and their own investigative efforts, including their checks of the FOSS database, did not provide any evidence to the contrary.
b. No Bad Faith or Improper Purpose on the Part of the Canadian Authorities
[45] As I have indicated, this evidence does not establish that the Canadian authorities acted in bad faith in this case and/or were engaged in an abuse of process. Indeed, in my view, the evidence establishes that the Canadian authorities acted, at all times, in good faith in their investigation in relation to the applicant. In reaching this conclusion, I have considered all of the following circumstances:
• The applicant’s certificate of Canadian citizenship was issued to him directly through an embassy in the United States. Moreover, this information was found only on the GCMS electronic database maintained by the federal Department of Citizenship and Immigration.
• When inquiries were first made of the CBSA as to the potential location of the applicant in Canada, a check for the applicant was performed on the FOSS database, also maintained by the federal Department of Citizenship and Immigration, but it revealed no information about the applicant.
• Correspondence between the Canadian and American authorities showed that, in late July of 2013, the Canadian authorities believed that the applicant was inadmissible in Canada as a result of his American criminal convictions, and that he was, accordingly, subject to arrest without warrant and liable to be processed and deported back to the United States.
• There is no evidence that the applicant was ever issued, or ever possessed, a Canadian passport. The CBSA confirmed this fact in late July of 2013.
• When the CBSA issued an immigration arrest warrant and arrested the applicant on August 16, 2013, the Canadian authorities still reasonably believed that the applicant was a citizen of the United States, who had previously been convicted of a sexual offence against a child, who had an outstanding criminal charges alleging a further sexual offence against a child, and who was inadmissible in Canada. A further check on the FOSS database revealed no additional information in relation to the applicant.
• As soon as the Canadian authorities were able to confirm the accuracy of the applicant’s claim that he was a Canadian citizen, following his arrest on the immigration warrant, the applicant was immediately released from custody, and arrangements were made to provide him with taxi transportation back to his Toronto residence.
• The applicant was not again arrested in connection with his alleged possession of child pornography in Missouri in mid-July of 2013 until the following day (August 17, 2013), when a provisional arrest warrant was properly issued under the Extradition Act, based upon an urgent request by the Missouri prosecutor.
[46] As I have indicated, in my view the evidence demonstrates that the Canadian authorities acted in good faith throughout their investigation of the applicant. While they certainly might have checked the CGMS database as an independent investigative step to examine the citizenship status of the applicant, they had no reason to question the reliability of the information that they had been given in this regard by the American authorities. After all, the applicant was known to be a citizen and long-term resident of the United States, with no known history of residence in, or travel to, Canada, and their checks of the FOSS database had not suggested otherwise.
c. The Evidence of Ian Fawcett
[47] Mr. Ian Fawcett, the Supervisor of Inland Enforcement for the CBSA, testified that, in the summer of 2013, he believed that the FOSS database, which was used regularly and frequently by CBSA officers in relation to a wide variety of immigration issues, would reflect all information about grants of Canadian citizenship. In short, Mr. Fawcett believed that he could rely upon the FOSS database to provide accurate information as to whether or not any individual was a Canadian citizen. This was the database that was checked to determine whether the applicant was a Canadian citizen, and which failed to reveal the applicant’s Canadian citizenship.
[48] Mr. Fawcett also testified, however, that he came to learn – on August 16, 2013 through his involvement in this case – that the FOSS database did not provide information about grants of Canadian citizenship where the person was born outside Canada, and that such information was only conveyed through the GCMS database. Unfortunately, not everyone working in the CBSA had access to the GCMS database, and some were forced to rely upon the FOSS database for immigration information.
[49] Mr. Fawcett also testified that, in the summer of 2013, prior to the initial arrest of the applicant, he genuinely believed that the applicant was inadmissible to Canada on the basis that the applicant had failed to disclose his criminal history, was a danger to the public, and was not likely to appear in Canada for an admissibility hearing. He admitted that he relied upon information that he had received from other officers that the applicant was a foreign national and an American citizen. Further, as the American authorities had requested the assistance of the CBSA in locating and returning the applicant to the United States, he wanted to move forward with the immigration warrant. Mr. Fawcett admitted that he was surprised when he eventually learned, through accessing the GCMS database, that that the applicant was a Canadian citizen. Mr. Fawcett explained that he thought he had done the proper investigative background check in relation to the applicant and testified that, if he had thought there was any doubt about the immigration/citizenship status of the applicant, he would have also checked the GCMS database.
[50] I accept the testimony of Mr. Fawcett. He struck me as an honest witness who was providing candid and truthful testimony. He appeared to honestly regret not having earlier discovered that the applicant was a Canadian citizen, but frankly and openly explained how this oversight had happened. In my view, Mr. Fawcett acted honestly and in good faith throughout all of his dealings with the applicant. His oversight, and that of his CBSA colleagues, in failing to double-check the immigration/citizenship status of the applicant on the GCMS database (as well as the FOSS database), was not the result of any deliberate misconduct, recklessness, wilful blindness, or even carelessness or negligence on their part. Further, there was no violation of any established legal norms with which they ought to have been familiar. See United States of America v. Talashkova, 2014 ONCA 74, 118 O.R. (3d) 622, at para.10; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 74-75; R. v. Taylor, 2014 SCC 50, 311 C.C.C. (3d) 285, at para. 39. Rather, the oversight arose from an honest misunderstanding as to the precise scope of the operation of the FOSS database. This is the kind of technical mistake that any reasonable person might make, almost regardless of how diligent and honest they may be.
d. Not an Abuse of Process or Charter Violation in Any Event
[51] In any event, the impugned conduct of the Canadian authorities cannot fairly and accurately be described as an abuse of process or a violation of the applicant’s rights under s. 7 of the Charter. More particularly, the Canadian authorities engaged in no conduct that violated the fundamental principles of justice which underlie the community’s sense of fair play and decency, or which could be accurately described as in any way oppressive or vexatious. Accordingly, permitting these extradition proceedings (and potentially the criminal trial proceedings) against the applicant to continue would not in any way undermine the integrity of the justice system. See R. v. Jewitt, 1985 47 (SCC), [1985] 2 S.C.R. 128, at pp. 136-137; R. v. Keyowski, 1988 74 (SCC), [1988] 1 S.C.R. 657, at pp. 658-659; R. v. O’Connor, at paras. 59, 70-73; R. v. Carosella, 1997 402 (SCC), [1997] 1 S.C.R. 80, 112 C.C.C. (3d) 289, at paras. 52-56; United States of America v. Cobb, at paras. 36-40, 42.
[52] The jurisprudence suggests that a “disguised extradition” claim which amounts to an abuse of process may be established in exceptional cases where there is compelling evidence that the immigration proceedings were a sham, commenced for an improper purpose and without any legitimate basis to pursue deportation. Typically, it arises when the evidence of the alleged foreign crime is not strong enough to justify extradition, and deportation proceedings are employed improperly to achieve indirectly the result that could not be achieved directly through extradition, and in proceedings which involve fewer procedural protections for the accused fugitive. See Bembenek v. Canada (1991), 1991 11763 (ON SC), 69 C.C.C. (3d) 34, [1991] O.J. No. 2162 (Gen.Div.), at paras. 10, 58-60; United States of America v. Quintin (2000), 2000 22657 (ON SC), 73 C.R.R. (2d) 237, [2000] O.J. No. 791 (S.C.J.), at paras. 47-50; United States of America v. Wilson, 2014 ONSC 2994, [2014] O.J. No. 2397, at para. 13. Accordingly, the present case, in which the parties are agreed that there is sufficient evidence to justify the committal of the applicant for extradition, is certainly not a typical case of “disguised extradition.”
[53] It is important to recall that, in practical terms, there is a significant overlap between extradition and deportation, and the fact that there was some cooperation between the American and the Canadian authorities in locating and arresting the person in question is not evidence of any improper motive on the part of the Canadian authorities. See Bembenek v. Canada, at paras. 120-122; United States of America v. Quintin, at paras. 47, 50-51; United States of America v. Kissel, [2006] O.J. No. 5020 (S.C.J.), at paras. 136-155, affirmed, 2008 ONCA 208, 89 O.R. (3d) 481, leave refused, [2008] S.C.C.A. No. 250.
[54] There is simply no evidence of any “disguised extradition” in the circumstances of the present case. The American authorities sought the arrest and deportation of the applicant in good faith, and the Canadian authorities had a legitimate basis to initially pursue the arrest and deportation of the applicant. See United States of America v. Talashkova, [2013] O.J. No. 1283 (S.C.J.), at para. 79, affirmed, 2014 ONCA 74, 118 O.R. (3d) 622, at paras. 10-11.
- The Remedy of a Stay of Proceedings is Not Justified
[55] As I have already indicated, the authorities establish that in cases where the proceedings against an accused have been conducted unfairly or have been otherwise damaging to the integrity of the judicial system, a stay of proceedings will be appropriate where two criterion are met: (1) the prejudice caused by the abusive state conduct will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice. See R. v. O’Connor, at para. 75; Canada (Minister of Citizenship and Immigration) v. Tobiass, at para. 90.
[56] The first criterion is critically important as it reflects the fact that a stay of proceedings is a “prospective” remedy. It is not intended to redress a wrong that has already been done, but rather seeks to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future. Accordingly, the mere fact that the state has mistreated an individual in the past is not enough to warrant a stay of proceedings. It must appear that the state misconduct is likely to continue in the future, or that permitting the prosecution will offend society’s sense of justice. See Canada (Minister of Citizenship and Immigration) v. Tobiass, at para. 91. Where the “residual category” of prejudice is invoked, however, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. See R. v. Babos, at para. 35.
[57] There is also a third criterion which balances the interests served by staying the proceedings against the interest that society has in having a final decision on the merits. This means that where the affront to fair play and decency caused by the state misconduct is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings. Accordingly, in some cases a compelling societal interest in having a full hearing may tip the scales in favour of proceeding, when measured against the offence to fair play and decency caused by the state misconduct. This third criterion takes on added importance where the “residual category” has been invoked. See Canada (Minister of Citizenship and Immigration) v. Tobiass, at para. 92; R. v. Babos, at paras. 40-43; R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, at para. 29; R. v. Zarinchang, 2010 ONCA 286, 99 O.R. (3d) 721, at para. 60.
[58] My consideration of these three criteria in the circumstances of the present case causes me to conclude that a stay of proceedings is not an appropriate remedy for any potential state misconduct by the American authorities and/or the Canadian authorities in any event. This is simply not one of the “clearest of cases” where such a remedy might be appropriate. See R. v. O’Connor, at para. 68; R. v. Babos, at para. 31.
[59] First, the only discernible actual prejudice suffered by the applicant by any of the alleged state misconduct in this case is that he was briefly under arrest in Canada on the afternoon of August 16, 2013 pursuant to the immigration warrant. The applicant was released, however, after but 95 minutes in custody, when the Canadian authorities determined that his Canadian citizenship document was legitimate. The applicant has not suffered any actual prejudice to his interests in a fair extradition hearing or a fair trial. Further, it is difficult to discern any particular prejudice to the integrity of the justice system. In any event, any potential prejudice has not been manifested, perpetuated or aggravated through the conduct of these extradition proceedings (or its result), nor will this prejudice be manifested, perpetuated or aggravated through the proposed American trial proceedings (or its outcome).
[60] Second, this is not a case where there is no other remedy reasonably capable of removing the perceived prejudice. Where individuals claim that they have been subjected to a false arrest, they may commence a civil action for monetary damages. In the circumstances of the present case, the applicant may, of course, elect to pursue such a remedy and it would, if successful, fully remedy the only actual prejudice suffered by the applicant. This remedy would also quite adequately “dissociate the justice system from the impugned state conduct going forward.” See R. v. Babos, at para. 39.
[61] Third, balancing the affront to fair play and decency caused by the alleged state misconduct against society’s interest in the extradition of the applicant to face a fair trial on the merits of the case against him also leads me to conclude that the “drastic” remedy of a stay of proceedings would be excessive and inappropriate in the circumstances of this case. It would permanently halt the prosecution of the accused for the alleged offence without an extradition hearing or criminal trial on the merits. See R. v. Regan, at para. 53; R. v. Babos, at para. 30. Possession of child pornography is a very serious offence. As Fish J. stated in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 8, such offences are “particularly insidious” in that they “breed a demand for images that exploit vulnerable children, both economically and morally,” and “generate widespread condemnation and intense feelings of disapprobation, if not revulsion.” See also R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at paras. 28, 34, 82-94, 103, 158-210. There is a compelling public interest in having such cases proceed to trial upon their merits. In contrast, any potential affront to fair play and decency caused by the state misconduct alleged by the applicant in this case is not significant.
VI
Conclusion
[62] In the result, I am not satisfied that the applicant has established that the conduct of the American authorities and/or the Canadian authorities in the present case amount to an abuse of process, or a violation of the constitutional rights of the applicant under s. 7 of the Charter. Nor am I satisfied that this is one of the “clearest of cases” when a stay of proceedings is an appropriate remedy for any perceived abuse of process. Accordingly, the application to stay the extradition proceedings is dismissed.
[63] As the parties have agreed, in the absence of an order staying the proceedings, the evidence in this case that the applicant was in possession of child pornography is such that there must be an order committing Mr. Latina for extradition.
Kenneth L. Campbell J.
Released: February 6, 2015
CITATION: United States of America v. Latina, 2015 ONSC 842
COURT FILE NO.: 29/14
DATE: 20150206
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA (ON BEHALF OF THE UNITED STATES OF AMERICA)
- and -
PAUL LATINA
REASONS FOR JUDGMENT
K.L. Campbell J.
Released: February 6, 2015