Court File and Parties
COURT FILE NO.: CR-21-90000049-00
DATE: 20211130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Requesting State
– and –
BAKSHINDER PALSINGH MANN Person Sought
Counsel:
Heather J. Graham, for the Respondent on disclosure application
Dana Achtemichuk, for the Applicant on disclosure application
HEARD: October 22, 2021
RULING ON A DISCLOSURE APPLICATION ON AN EXTRADITION
B. P. O’MARRA J.
[1] On June 21, 2019, a warrant was issued for the arrest of the applicant in California. The allegations related to the exchange of sexually explicit images and sexual intercourse with his fifteen-year-old cousin that resulted in her pregnancy. Culpable homicide charges were laid against members of the family related to the death of the newborn infant. There was also a warrant for his arrest on a charge of accessory in relation to the death of the infant. The applicant was arrested and released on terms that included he remain in California. Later that month the applicant entered Canada after cutting off his electronic monitoring bracelet in contravention of his release terms.
[2] In March 2021, Canada Border Services Agency (CBSA) became aware that the applicant was in Canada at an address in Brampton, Ontario. With the assistance of Peel Regional Police (PRP) members of CBSA executed a Special Entry Warrant under the Immigration and Refugee Protection Act (IRPA) S.C. 2001, c. 27 on March 19, 2021 at the residence where the applicant was staying. Under the IRPA the applicant was arrested for serious criminality (s. 36(1)(c)) and illegal entry into Canada (ss. 18(1), 41(a)).
[3] On March 24, 2021, an officer with the Toronto Police Fugitive Squad arrested the applicant on a provisional arrest warrant issued under the Extradition Act, S.C.1999, c.18. The Attorney General of Canada on behalf of the United States is not seeking a committal for any conduct relating to the death of the infant.
[4] News of the applicant’s arrest in Canada, and the nature of the charges he faces in California, have been the subject of local and American media attention. It has been reported in the Toronto Sun, Toronto Star, an Indo-Canadian news outlet, a local Brampton news outlet and ABC News.
[5] The applicant seeks disclosure of information and materials related to the following:
He claims he was physically abused and threatened by the officers who arrested him on March 19, 2021.
He further claims that after his arrest he was held in custody at the Maplehurst Correctional Complex (Maplehurst) and the correctional officers informed other inmates of the nature of his outstanding charges in California. As a result, the applicant was beaten by another inmate. During the attack the correctional officers failed to intervene in a timely way. The applicant suffered significant injuries. This incident is being investigated by Halton Regional Police (HRP). The applicant has been interviewed by them, but he is unaware whether criminal charges have been laid.
[6] On September 13, 2021, applicant’s counsel were provided a redacted copy of his institutional and medical records from Maplehurst pursuant to a request under the Freedom of Information and Protection of Privacy Act (FIPPA) R.S.O. 1990, Chapter F.31 known as an Access to Information and Privacy Request (ATIP Request). The covering letter to the response sets out the various grounds for the applicable redactions under FIPPA as well as instructions on how to appeal the decision to the Information and Privacy Commissioner. The ATIP records confirm that the applicant required ongoing medical attention for serious injuries following an altercation at Maplehurst on April 28, 2021. They also confirm that he was placed in segregation at his own request for periods of time, beginning approximately June 10, 2021.
[7] By email dated October 6, 2021, counsel for the respondent partially acceded to the applicant’s disclosure request related to the arrest on March 19, 2021. The following documents were voluntarily provided to counsel for the applicant:
• Handwritten notes of the CBSA Officer (redacted); • Transcription of those notes (redacted); • Handwritten notes of the lead PRP Officer; • PRP Use of Force Report; and • PRP Occurrence Report.
[8] The applicant claims that his rights under the Charter of Rights and Freedoms were violated by the authorities in these two incidents. He intends to advance an application to stay the extradition proceedings as an appropriate remedy for these violations.
[9] In R. v. Larosa, 2002 CanLii 45027 (ONCA) at para. 76 the court addressed the criteria for ordering production of documents in extradition proceedings as follows:
• The allegations must be capable of supporting the remedy sought; • There must be an air of reality to the allegations; and • It must be likely that the documents sought would be relevant to the allegations:
[10] Extradition hearings are not trials and the applicable disclosure is fundamentally different from domestic criminal proceedings. The latter relate to the right of an accused to make full answer and defence in a trial where guilt or innocence are at stake: USA v. Dynar, 1997 CanLII 359 (SCC), 2 S.C.R. 462 at paras. 130-132; USA v. Kwok, 2001 SCC 18, 1 S.C.R. 532 at paras. 99-101.
[11] The person sought for extradition is ordinarily “not entitled to disclosure from the Requesting State beyond the production of the evidence that it relies on to establish its prima facie case”: Dynar at paras. 134, 144; Kwok at paras. 99, 101.
[12] An extradition judge has Charter jurisdiction but only in respect of issues related to whether there is a prima facie case against the person sought. Canadian courts have the inherent and residual common law discretion to control their own process and prevent an abuse of that process. The presiding judge must ensure that the committal order, if it is to issue, is the product of a fair judicial process: USA v. Cobb, 2001 SCC 19.
[13] In USA v. Lane, 2014 ONCA 506 at para. 45 the court addressed the extradition judge’s jurisdiction to consider Charter issues. The Extradition Act s. 25 gives the judge jurisdiction to consider such that “pertain directly to the circumscribed issues relevant to the committal stage of the extradition process”: Kwok at para. 57. If a stay of proceedings is sought there should be “a nexus between the conduct alleged to constitute an abuse of process and the committal hearing itself”: USA v. Khadr, 2011 ONCA 358 at para. 45, leave to appeal refused, [2011] SCCA 316. Such a nexus has been found to exist where the evidence introduced at the committal hearing was obtained through the misconduct of the requesting state (Khadr), where threats or inducements are made to force the person sought to abandon the right to a committal hearing (Cobb), and where the committal hearing itself was the result of misconduct by the requesting state: USA v. Tollman (2006), 2006 CanLII 31732 (ON SC), 212 CCC (3d) 511 (Ont.S.C.).
[14] In USA v. Shulman, 2001 SCC 21, the party sought was committed for surrender related to charges of fraud. He appealed against committal and sought to tender fresh evidence of threatening statements made by the American judge and prosecuting attorney who had carriage of the matter in the United States. The judge had commented that those fugitives who did not cooperate would get “the absolute maximum sentence”. The prosecuting attorney had hinted during a television interview that the uncooperative fugitives would be subject to sexual assault in prison. The Court of Appeal dismissed both the motion to adduce fresh evidence and the appeal against committal. On further appeal, the Supreme Court ruled that the Court of Appeal erred in not receiving the fresh evidence. The televised comments of the prosecuting attorney were a shocking use of threats by an American official attempting to induce a Canadian citizen to renounce the exercise of his lawful access to courts in Canada to resist an extradition request. Those statements were properly attributed to the Requesting State. Standing alone, the statements of the prosecutor constituted a sufficient basis upon which to stay the proceedings.
[15] The overall position of the applicant is that a stay of proceedings should be ordered to denounce the alleged misconduct of the various police agencies, border security officers and correctional officers. However, even if those highly contentious allegations were made out, there is an absence of connection to the impending extradition process.
[16] The arrest on March 19, 2021 was made before the extradition arrest. There were clearly grounds to arrest him for violations of immigration laws related to his entry to Canada quite apart from the extradition process. The alleged incidents at Maplehurst on April 28, 2021 are totally unrelated to the extradition process. Neither alleged incident involved the gathering of evidence to be tendered at a committal hearing. There is no suggestion that the Requesting State was in any way involved in either incident. The production sought by the applicant could not support the declared goal of a stay of the extradition proceedings.
[17] On that basis the application is dismissed.
B. P. O’MARRA J.
Released: November 30, 2021
COURT FILE NO.: CR-21-90000049-00
DATE: 20211130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Requesting State
– and –
BAKSHINDER PALSINGH MANN
Person Sought
RULING ON A DISCLOSURE APPLICATION on an extradition
B. P. O’MARRA J.
Released: November 30, 2021