COURT FILE NO.: CR-18-90000121-00MO
DATE: 20190328
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Respondent
– and –
TENZIN NORBU a.k.a. TENZIN PASANG a.k.a. PASSANG TSERING a.k.a. SONAM SANGPO a.k.a. TENZIN NAMGYAL a.k.a. TENZIN LAMA
Applicant
Adrienne Rice, for the Crown
Leo Adler, for the Applicant
HEARD: March 22, 2019
RULINGS ON A REQUEST TO ADJOURN THE HEARING AND TO JOIN WITH OTHER PROCEEDINGS FOR THE HEARING OF A COMMON ISSUE
B. P. O’MARRA J.
[1] The applicant, Mr. Norbu, was arrested on May 10, 2018 and released on bail on July 13, 2018. He is sought by the United States of America (“USA”) for allegedly counselling asylum seekers to make false claims on their applications. March 22, 2019 was scheduled for the hearing of an application to extradite Mr. Norbu to the USA. On that day, Mr. Norbu’s counsel submitted a series of applications. After brief oral submissions, I made a series of rulings with reasons to follow. These are those reasons.
THE APPLICATIONS
[2] Mr. Adler is counsel for Mr. Norbu. He is also counsel for Festus Akpobome and Gregory Hibbert who face unrelated extradition hearings before the Superior Courts in Brampton and Kingston respectively.
[3] On the date set for the hearing related to Mr. Norbu, his counsel applied for the following in relation to all three of his clients’ extradition hearings:
(1) Adjourning sine die each of the Applicants’ respective extradition hearings pending the receipt of a judicial decision regarding a proposed jurisdictional/Charter challenge to s. 2(2) of the Department of Justice Act, R.S.C. 1985, c. J-2.
(2) Requesting that the constitutional challenge to the Extradition Act, S.C. 1999, c. 19 in each of the Applicants’ respective extradition hearings be considered as a joint application to be decided by a single Justice of the Superior Court of Justice of Ontario, at a place and on a date to be determined by those responsible for the administration of such matters.
(3) The granting, or extending and continuing, of any release (bail) orders for each of the Applicants, as may be necessary, to accommodate the hearing of this joint application.
(4) The making of such further and other Orders or remedies as counsel for the Applicant may advise, and/or as this Honourable Court may see fit to grant.
[4] The grounds for the adjournment of all three hearings and for a joint or common proceeding are as follows:
(1) Each of the Applicants is facing extradition to the USA, and each of the Applicants is represented by the same counsel: Leo Adler of Leo Adler Law.
(2) Counsel for the USA with respect to each of the applications for extradition is a member of the same office of the Extradition Team of the Minister of Justice, located in Toronto.
(3) Despite the differing charges that each Applicant faces, the legal issues and arguments to be made with respect to the constitutionality of the Minister of Justice and the Attorney General being one and the same, for the purposes of the Extradition Act, will be identical with respect to all the Applicants.
(4) In order to promote efficiency and consistency, there ought to be: a) an adjournment of the current hearing dates set for each of the Applicants; b) the continuation of any bail orders; c) the appointment of a single judge to hear this application, at a place and time to be determined; and d) the requiring of all parties to file their respective Applications, Responses, facta and other materials on dates to be fixed by the court.
(5) The underlying basis of this challenge is that – at least for extradition purposes – there are diverse pieces of legislation, as well as the Treaty, that have assigned different functions to various officials, such as: the Minister responsible for foreign relations, the Minister of Justice, the Attorney General, and the Director of Public Prosecutions.
(6) It will be argued in each extradition hearing that one of the many purposes for such a division is to ensure that the extradition process is in compliance with the Charter – especially considering the drastic nature and effect of such a rendering, as set out in numerous decided cases.
(7) Accordingly, to allow the required Authority to Proceed (for example, as per s. 15 of the Extradition Act) to be issued by the Minister of Justice to the self-same Attorney General would make a mockery of the safeguards, checks and balances, and independent assessment and reassessment that the Act requires.
(8) As stated, at this point, counsel seeks to have the matter litigated only once, before only one judge, at only one location.
(9) Such further and other grounds as counsel may advise.
[5] Mr. Adler referred me to the decision of Durno J. in USA v. Efevwerha, 2019 ONSC 1609, at para. 72:
72 With regards to common-issues judges, there may be two or more extradition hearings with common issues. Pursuant to s. 551.7 of the Criminal Code one judge can be appointed to adjudicate on the common issues whether the proceedings are within the same Ontario region or not, provided they are in Ontario. On the respondent’s interpretation of the Extradition Act, separate judges would have to rule on the same issue.
[6] That decision related to whether a person sought for extradition could appear by designated counsel pursuant to s. 650.01 of the Criminal Code, R.S.C. 1985, c. C-46.
[7] The Crown opposed these applications for the following reasons:
(1) The extradition process is supposed to proceed expeditiously. The adjournment request does not comply in a timely way with the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-17.
(2) The bail terms have already been extended once related to a defence adjournment and there is no confirmation that the sureties are prepared to continue for an extended time.
(3) There is no merit to the proposed Charter arguments. The Crown referred to Idziak v. Canada (Minister of Justice), 1992 CanLII 51 (SCC), [1992] 3 S.C.R. 631, at paras. 51, 54, 56 and 57.
(4) Pursuant to s. 551.7 of the Criminal Code and r. 29B.06 of the Criminal Proceedings Rules, an application to join three unrelated hearings from separate regions in Ontario must be made to the Chief Justice or her designate. That was not done in this case.
RESULT
[8] The application to join the hearings currently set to proceed in Toronto, Brampton and Kingston is dismissed. Such an application must be made to the Chief Justice or her designate.
[9] The request to adjourn the hearing on Mr. Norbu to allow his counsel to serve and file the Charter application is granted. Mr. Adler advises that the sureties are aware of the adjournment request and are willing to continue in their roles. I will reserve any comment on the merits of the Charter application until I review and consider all of the submissions.
[10] I agree with Crown counsel that extradition matters should proceed expeditiously. Counsel for Mr. Norbu advises he will have the Crown served by March 29, 2019.
[11] I will remain seized of the matter and dates can be set in the near future to deal with the Charter issues and any other matters related to the extradition request related to Mr. Norbu.
B. P. O’Marra J.
Released: March 28, 2019
COURT FILE NO.: CR-18-90000121-00MO
DATE: 20190328
ONTARIO
SUPERIOR COURT OF JUSTICE
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Respondent
– and –
TENZIN NORBU a.k.a. TENZIN PASANG a.k.a. PASSANG TSERING a.k.a. SONAM SANGPO a.k.a. TENZIN NAMGYAL a.k.a. TENZIN LAMA
Applicant
RULINGS ON A REQUEST TO ADJOURN THE HEARING AND TO JOIN WITH OTHER PROCEEDINGS FOR THE HEARING OF A COMMON ISSUE
B. P. O’Marra J.
Released: March 28, 2019