Information No. 19-138
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
BRADY JOHN HILLIS
RULING ON APPLICATION
BEFORE THE HONOURABLE JUSTICE GEORGE
on September 4, 2019 at LONDON, Ontario.
APPEARANCES:
A. Rice Counsel for the Federal Crown
S. Weinstein Counsel for Brady John Hillis
WEDNESDAY SEPTEMBER 4, 2019
R U L I N G
GEORGE J. (Orally):
The United States of America has requested the extradition of Brady John Hillis. It is alleged that he committed acts of sexual touching against three girls at a resort in Minnesota. The Minister has issued an authority to proceed pursuant s. 15 of the Extradition Act.
Mr. Hillis has brought an application. He seeks a finding that there has been an abuse of process. As a remedy he seeks a stay of proceedings.
In support of this request he relies upon the declaration of Peter Wold, an attorney licensed to practice in the States of Minnesota, North Dakota, South Dakota and in U.S. District Courts.
He deposes that he acts for Mr. Hillis in respect of the charges brought in Minnesota. He describes in some detail the civil commitment process to the Minnesota Sex Offender Program.
I learned from Mr. Wold that after an individual’s prison sentence is completed the courts may civilly commit that person in treatment for an indefinite period. Even without a conviction a civil court may commit if the judge determines that the offender is a “sexual psychopathic personality” or a “sexually dangerous person” or both.
This regime is described as aggressive and one of the most far-reaching such programs in the United States. People can potentially be confined for an indefinite period.
Mr. Wold tells me that the legal standard that applies to this commitment regime is distinctively vague and broad. Mr. Wold provides a history of this legislative scheme, which originated in 1939. He also provides a brief history of judicial treatment of the provision. Of particular note is that it is not necessary to prove that the person has an inability to control their sexual impulses, is violent, or has a history of violence. There is no such criterion and no recency requirement. This regime’s legality and constitutionality have been upheld most recently in 2017.
While I do not believe this is addressed in Mr. Wold’s affidavit, I note also that if convicted Mr. Hillis faces a sentence of 30 years imprisonment. I think we would all agree that this is a drastic increase from the penalty one would face were they convicted of similar crimes in Canada.
At the outset of the hearing the Attorney General raised a jurisdictional issue. Counsel, Ms. Rice, takes the view that this Charter Application exceeds my statutory mandate. She seeks a ruling on this question before proceeding with the extradition hearing as, if I determine that I do have jurisdiction she would in all likelihood seek to cross-examine Mr. Wold. She, in effect, asks that I summarily dismiss the Charter Application.
Counsel for Mr. Hillis argues that I do have jurisdiction. In the course of his submissions he set out those areas where I suspect there is common ground:
- My role and the role of the Minster are
distinct. This is clear and
uncontroversial;
That I am not merely a rubber stamp; and;
While I am not concerned with defences or
with any matters where the person sought
has an onus or evidentiary burden, I do
have the ability to address Charter issues
and to grant remedies so long as the
particular constitutional issue being
raised is relevant to the committal
process.
I’m going to pause here to reflect upon the Extradition Act and to describe what exactly my role is.
Section 29 provides that:
A judge shall order the committal of the person into custody to await surrender if, in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that had it occurred in Canada would justify committal for trial on the offence set out in the authority to proceed, and the judge is satisfied that the person is the person sought by the extradition partner.
What is described here is often referred to as dual criminality. It speaks for itself and the section makes clear what it is. But it is essentially the requirement that one can only be extradited to the requesting jurisdiction if a similar law exists in the extraditing country.
This is my mandate. This is my role. This is the starting point.
Mr. Hillis, in support of his position that we should proceed with his Charter Application, makes several submissions, including:
- Pursuant to s. 25 of the Act, and for the
purposes of the Constitution Act, I have,
with respect to the functions I am required
to perform, the same competence that I
possess by virtue of being a Superior Court
Judge.
- The jurisprudence makes it abundantly clear
that I can grant Charter remedies so long
as the presenting Charter issue and
subsequent breach, if one is found, is
related and relevant to committal.
- Fairness of the committal hearing itself
falls within my jurisdiction. In other
words, part of my role as an extradition
judge is to ensure that the committal
hearing is fair and that the proceeding is
conducted in accordance with the principles
of fundamental justice.
Having said all of that, on the basis of the record now before me, including obviously Mr. Wold’s evidence, even if I wanted am I able to grant the relief requested by Mr. Hillis? He says I can for these reasons:
- He argues that there is indeed a
nexus between what he styles an abuse of
process and this committal hearing.
- Apart from any Charter issues, Mr. Wold’s
evidence is relevant potentially to the
test for committal. That is his evidence
has a bearing on dual criminality.
- While the ultimate decision on surrender is
a matter for the Minister, there is
an overlap, meaning, since I am not a
rubber stamp, and since the Minister
is not tasked with protecting the Court’s
integrity, I should step in and consider
this application on its merits. In other
words, to address the Charter motion would
not preempt the Minister. My jurisdiction
exists irrespective of the Minister’s
jurisdiction to grant the same relief.
- This is an alternate position but, even if
I disagree with Mr. Hillis on the
jurisdictional question, I should still
proceed as he suggests and allow for a
complete evidentiary record to be
developed, which would obviously include
Mr. Wold’s declaration, and testimony
should he be cross-examined. In other
words, it is necessary to have a complete
record put before the Minister.
- The abuse of process alleged here rests not
only in the potential consequences, which I
agree are excessive and draconian
(especially if there is a loss of liberty
following an acquittal), but also in the
fact the U.S. authorities, in its
materials, failed to disclose all
potential consequences. This he attempts
to fit within the line of reasoning
espoused in several cases, including
Cobb and Khadr, which stand for the
proposition that the conduct of the
State seeking extradition, including its
representatives and agents, is relevant to
the hearing itself and the very test for
committal. That is, it bears upon the
fairness and integrity of the process.
The overarching point Mr. Hillis attempts to make is this. I am not now addressing whether any of this amounts to an abuse of process. I may, in the fullness of time, agree with the Attorney General that there is no Charter violation. The question is simply whether I have jurisdiction to find Charter breaches and grant remedies, and I clearly do.
It is within this context that I must view and assess the Attorney General’s opposition to proceeding as Mr. Hillis suggests. This is where I now turn.
I am not going to repeat Ms. Rice’s submissions. Her argument was organized in a way that was easy to follow. She responded in turn to each of the points raised by Mr. Hillis’ counsel.
The long and short of it is this: Taking Mr. Wold’s declaration at face value, and accepting everything he deposes is true, the Attorney General submits that there is no basis upon which to conclude an abuse of process has occurred. I agree.
Potential consequences alone do not bring this within my orbit. Meaning if this were the only issue or factor, I can confidently conclude, even at this early stage, that it does not in any way impact the fairness of this hearing. This is clearly an issue for the Minister to consider in making the ultimate determination on surrender.
Mr. Hillis’ counsel advances this further argument. If not the penalty itself, the failure of the U.S. authorities to disclose the potential consequences does place the specter abuse of process within my Charter jurisdiction. In other words, this silence, which he characterized as misleading, is reviewable by an extradition judge. This bad conduct brings it within the circumscribed purpose of the extradition hearing.
For the following reasons I reject this argument.
Consider, first, the Supreme Court’s comments in M.M. which adds some body and depth to s. 29. It describes an extradition judge’s jurisdiction as statutory and limited. The Court writes:
The committal phase of the extradition process serves an important, but circumscribed and limited screening function. The role of the extradition judge is simply to decide whether he or she is satisfied that the person before the court is the person sought and whether “there is evidence admissible under the Act and available for trial of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed.
And that leads me to this question: What of Mr. Wold’s evidence calls into question the fairness of this hearing and/or in what way does it call into question this Court’s integrity? The answer, in my view, is it does neither and I am confident in arriving at that conclusion now without allowing the Charter motion to proceed further and without bringing this hearing to a halt to allow for the cross-examination of Mr. Wold.
I make this determination taking Mr. Wold’s evidence at its highest and accepting it as truth. There is nothing more to know about his evidence. There is nothing more I need to know about it.
Next, is it open to me, on this record, to conclude that U.S. authorities misled us by not including in the materials information about all potential consequences. And, if it is indeed the case that U.S. authorities have misled us, what is the import?
Let me start here. It is difficult to see how this was an attempt to mislead, but even if I am wrong, we now know and knew before we commenced this hearing what the potential consequences are, and this knowledge is the remedy to the problem identified by Mr. Weinstein. We all know now what the potential consequences are. Mr. Hillis knows and knew before we commenced the hearing. Indeed, potential consequences are the focus of Mr. Wold’s declaration, which was obtained at Mr. Hillis instance.
While counsel pointed me to the Treaty itself and what it says the requesting State must disclose, consider also s. 33 of the Act which sets out that which must be included in the record of the case, which has been complied with. This simply has no bearing on the presenting issues, nor does it impact the conduct of this hearing. It does not call into question the fairness of this proceeding nor does it impugn the Court’s integrity. This hearing can unfold, and I will perform my circumscribed role unimpeded.
The best way to look at this is to contrast it with the examples cited by counsel. I am not going to repeat them all; they should be fresh in our mind. But the White case, for example, involved an allegation that the extradition request was an abuse of process as the requesting State was seeking the surrender so it could prosecute a criminal matter when, on a much lower standard, related civil claims were rejected. This argument did not hold water. This in my view, is the closest fact-set to ours.
On the other hand, in Zajicek a nexus was found but it arose directly from the requesting State’s investigation of the very crime it wanted to prosecute which, quite rightly, fell to the extradition judge to consider.
In the case at bar there is no allegation of an improper investigation. It is purely a question of the potential consequences that might befall Mr. Hillis. There is no nexus between this question and the fairness of this hearing.
The abuse of process alleged here is the extreme potential consequences Mr. Hillis might face in Minnesota. That being the case, and with nothing more, that falls to the exclusive jurisdiction of the Minister. It does not impugn this Court’s integrity. I do not know whether the Minister will ultimately issue a surrender order, but I agree with the Attorney General that that step must occur.
Why would I weigh-in just because I do not know what the Attorney General is going to do? The next steps have not happened and they need to. Were I to consider this application on the basis of Mr. Wold’s evidence alone, I would be preempting the Minister and intruding on that which falls within his sole purview.
We must be mindful of the stages and protections afforded Mr. Hillis. I note that s. 40 merely allows the Minister to order surrender. It is permissive, not mandatory. Subsection (3) allows the Minister to seek any assurances he deems appropriate from the extradition partner. Section 43 allows Mr. Hillis to make submissions to the Minster, which in this case would surely include Mr. Wold’s declaration; a declaration that is fulsome, detailed, and which clearly explains the civil commitment process in Minnesota. Thirty days is the timeframe within which to receive those submissions, but the Minister is permitted to receive them beyond that if he considers it appropriate.
Section 44 directs the Minister to refuse to make a surrender if it would be “unjust or oppressive having regard to all the relevant circumstances”. It strikes me that Mr. Wold’s evidence is tailor-made for this specific subsection. His evidence has a direct bearing on that very question, which is the Minister’s alone to answer.
In addition, not only does Mr. Hillis have the right to appeal against any decision or order I might make, by virtue of s. 57 he may seek a judicial review of the Minister’s decision if he does not give due weight to Mr. Wold’s evidence.
I have to this point focused on whether I have jurisdiction to hear and decide this particular abuse of process allegation concluding, based on the filed materials and declaration of Mr. Wold, that I do not. During the course of my discussion so far, I hope it has been made abundantly clear as well that Mr. Wold’s evidence has no relevance to the dual criminality question.
At the risk of repeating myself, s. 29 prescribes my task. I must order the committal of Mr. Hillis into custody to await surrender if after being satisfied that he is indeed the person being sought by U.S. authorities, there is evidence of conduct that had it occurred in Canada would justify committal for trial in Canada on the offence set out in the authority to proceed. Mr. Wold’s evidence does not touch on this at all. It is true that there is a disparity in potential sentences, but that is not a part of s. 29.
Lastly, irrespective of the jurisdictional question, should I allow the matter to proceed in order to establish a complete record for the Minister? In other words, should I permit Mr. Hillis to further lay the foundation for his submissions, which will surely focus on the potential consequences in Minnesota?
On these facts I find that this is unnecessary. Mr. Wold’s declaration is clear, thorough, and I suspect unassailable. I have no reason to believe that what he deposes is untrue. It is what it is, and the Minister will have to at least consider it and factor it into his decision on surrender.
As I indicated earlier, Mr. Wold’s evidence as it now stands seems tailor-made for that part of this process. I do not see how counsel elaborating on it here, or subjecting Mr. Wold to cross- examination, would add any value to it. If I thought it would, I would allow it, but in light of an extradition hearing’s purpose - which is to resolve this issue in a summary and expeditious manner - and having regard to the evidence in question it just does not make sense to proceed in this way.
In the result I agree with Ms. Rice. I find that there is no intertwining of potential penalty and the question of whether a prima facie case for committal exists. Which means there is no nexus, which means there is nothing to be gained from hearing from Mr. Wold at this stage.
Therefore I do not, in these circumstances and on this record, have jurisdiction to address Mr. Hillis’ stay application.
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CERTIFICATE OF TRANSCRIPT
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I Tammy McKay, certify that this document is a true and accurate transcript of the recording of R. v. John Hillis in the Superior Court of Justice held at 80 Dundas Street, London Ontario taken from Digital Recording 2311_CrtRm20_20190904_092320__10_GEORGEJON.dcr, which has been certified in Form 1.
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Transcript Ordered: ..........................September 4, 2019
File Received from Recording Management: .....September 4, 2019
Reasons sent..................................September 4, 2019
Reasons returned.............................September 10, 2019
Transcript Completed: .......................September 10, 2019
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