COURT FILE NO.: CR-21-90000082-00MO
DATE: 20221124
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
– and –
ANTON VIKHAREV
Chris Bundy, for the Attorney General of Canada
Boris Bytensky, for Anton Vikharev
HEARD: August 10, 2022
R.F. GOLDSTEIN J.
[1] Anton Vikharev is wanted in the United States of America. The United States has requested his extradition. On June 4, 2021, he was about to board a plane to Frankfurt, Germany and then go on to Russia when police officers arrested him on the strength of a provisional arrest warrant granted by Schreck J. of this Court.
[2] Mr. Vikharev asks that the proceedings be stayed as an abuse of process. He argues that the officer swearing the affidavit made significant material omissions and misrepresentations. He argues that it was a significant violation of his rights under s. 7 of the Canadian Charter of Rights and Freedoms.
[3] I respectfully disagree. There were omissions in the affidavit, but those omissions were not material. Even if they were material, the actions of the Canadian authorities do not rise to an abuse of process.[^1] For the reasons that follow, the application is dismissed.
BACKGROUND
The Allegations In The Statement Of The Case
[4] Commencing in 2015, the United States Internal Revenue Service (the American equivalent of the CRA) investigated a false refund scheme. According to the Statement of the Case supplied to Canadian authorities, the perpetrators of the scheme claimed some $11.1 million in fraudulent tax refunds. The scheme resulted in an actual loss to the U.S. government of just over $2 million. The scheme allegedly ran from 2011 to 2016. The perpetrators opened 500-600 bank accounts in New York and New Jersey. They used multiple passports to open the accounts.
[5] The scheme allegedly contained many badges of fraud: although multiple passports were used, all contained the same photograph; the bank account holder did not match the name of the taxpayer to whom the refund was issued; the bank accounts had no other activity than to receive tax refunds; some accounts received multiple tax refunds; tax returns were filed from IP addresses that were in locations different from those listed on the returns as the taxpayer’s address; and the taxpayer’s addresses did not match the addresses on the bank accounts.
[6] The IRS obtained surveillance photos of automated teller machines from 2015 to 2017. The surveillance photos allegedly showed Mr. Vikharev making cash withdrawals on 12 occasions. The withdrawals were made from accounts shortly after fraudulent tax refunds had been paid into them.
Mr. Vikharev’s Background
[7] On May 15, 2012, Mr. Vikharev obtained a student visa permitting him to be in the United States until September 1, 2012. He arrived in Anchorage, Alaska, on June 12, 2012. Mr. Vikharev stayed in the United States until July 4, 2017. Canadian and American authorities do not know what he did during the five years he lived in the United States, other than the alleged criminal activity. He left via El Paso, Texas, and crossed into Ciudad Juarez, Mexico. He then returned to Russia. He took a roundabout route: from Ciudad Juarez he went to Mexico City. He took a flight on Aeromexico from Mexico City to Havana, Cuba. From Havana he made his way back to Russia.
[8] In 2019 Mr. Vikharev and his wife came to Canada. They applied for status as refugees. They lived and worked in Canada pending determination of those claims. In May 2021 Mr. Vikharev and his wife abandoned their refugee claims and made plans to return to Russia. When a refugee claim is abandoned, the claimant no longer has status in Canada, triggering a removal order. As part of the removal order process, on May 21, 2021, Mr. Vikharev had an interview with Canada Border Services Agency (CBSA) officers. He provided his itinerary to the officers.
The Provisional Arrest Warrant
[9] On February 23, 2021, the U.S. District Court for the Western District of Missouri issued a warrant for Mr. Vikharev’s arrest. An agent of the U.S. Internal Revenue Service received information that Mr. Vikharev was scheduled to fly from Toronto to Frankfurt, Germany, on June 4, 2021. On June 2, 2021, IRS agents reached out to the Toronto Police Fugitive Squad about Mr. Vikharev. The Toronto Police ran checks on Mr. Vikharev. They confirmed that he had abandoned his refugee claim in Canada and that there was a departure order outstanding. Detective Constable Charlene Smith of the Fugitive Squad was assigned. DC Smith reached out to the Department of Justice in Toronto on June 2, 2021, at 5:13 pm to give a “head’s up” that there would be a request for a Provisional Arrest Warrant (PAW) from the United States for an individual flying to Frankfurt on June 4 at 6:20 pm.
[10] The U.S. Justice Department then transmitted an urgent request for a PAW to the Minister of Justice. On June 3, 2021, the Minister’s delegate signed an authorization permitting the Attorney General of Canada to apply to this Court for a PAW. The PAW materials were sent to the Department of Justice in Toronto at 5:19 pm that day. Mr. Bundy responded that Lynne Axmith, a senior paralegal, would reach out the next day. At 7:50 am the next morning Ms. Axmith sent an email to CBSA with ten questions. Pat Bono, the CBSA Justice Liaison Officer, responded with answers at 8:28 am. Ms. Axmith had a follow-up question at 9:02 am regarding the details of the flight. Pat Bono responded at 9:18 that on May 21, 2021 Mr. Vikharev had notified CBSA of his intention to depart Canada on June 4, 2021. He was scheduled to fly at 6:20 pm that evening on Lufthansa to Frankfurt, and then on to Russia on a Lufthansa connecting flight.
[11] The affidavit in support of the PAW was drafted at the Department of Justice in Toronto that day. It was reviewed and then sworn by DC Smith some time on June 4, 2021. DC Smith testified that she made no substantive changes to the affidavit. Justice Schreck signed the PAW that day. Mr. Vikharev was arrested at Pearson International Airport prior to boarding. His wife was permitted to board the aircraft and depart. Justice Gillian Roberts denied bail.
ISSUES AND ANALYSIS
[12] Extradition is meant to be an expedited process. An extradition hearing is not a trial. The process is designed to minimize expenses and ensure Canada’s compliance with its international obligations, while protecting the rights of the person sought: United States v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462 at para. 122; United States v. M.M., 2015 SCC 62, [2015] S.C.R. 973 at paras. 15-16. The judge’s role during an extradition hearing is limited to determining whether there is a there is evidence sufficient to support a committal for trial, and that the conduct at issue would constitute an offence under Canadian law: Extradition Act, s. 29(1); United States v. M.M. at para. 36. An extradition judge may consider Charter issues: Extradition Act, s. 25. In United States v. Latina, 2015 ONSC 842, my colleague K. Campbell J. described the jurisdiction this way:
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 Extradiction Act, provided that the Charter issues "pertain directly to the circumscribed issues relevant at the committal stage of the extradition process." See United States v. Kwok, 2001 SCC 18, [2001] 1. S.C.R. 532 (S.C.C.), 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 v. Khadr, 2011 ONCA 358, 106 O.R. (3D) 449 (Ont. C.A.), at para. 45, leave refused, [2011] S.C.C.A. No. 316 (S.C.C.).
[13] Section 13(1) of the Extradition Act governs PAWs:
13 (1) A judge may, on ex parte application of the Attorney General, issue a warrant for the provisional arrest of a person, if satisfied that there are reasonable grounds to believe that
(a) it is necessary in the public interest to arrest the person, including to prevent the person from escaping or committing an offence;
(b) the person is ordinarily resident in Canada, is in Canada or is on the way to Canada; and
(c) a warrant for the person’s arrest or an order of a similar nature has been issued or the person has been convicted.
[14] It is agreed that only s. 13(1)(a) is in issue in this case.
[15] Mr. Bytensky argues that the PAW provisions were “grossly mis-used” in several respects. In particular, he argues that the DC Smith’s affidavit was misleading in that it falsely portrayed Mr. Vikharev as a “substantial flight risk”; that the urgency was manufactured by the requesting state; and that Mr. Vikharev was falsely portrayed as seeking to “escape” or “evade” justice. These misleading assertions, buttressed by material omissions, make out a case for an abuse of process.
[16] Mr. Bundy, for the Attorney General, raises preliminary issues regarding this Court’s jurisdiction to grant a remedy. His position is that there is no nexus between the alleged abuse of process and the issues on the extradition hearing.
[17] Accordingly, the following issues are before the Court:
(a) Is it necessary that there be a nexus between the alleged abusive conduct and the extradition hearing?
(b) Did the affidavit falsely portray Mr. Vikharev as a substantial flight risk who was seeking to escape?
(c) Was the urgency manufactured by the requesting state?
(d) Is a stay of proceedings warranted?
(a) Is it necessary that there be a nexus between the alleged abusive conduct and the hearing?
[18] Mr. Bundy, counsel for the Attorney General argues that there is no nexus between the alleged abuse of the PAW provisions and the committal hearing. Whether there was full, frank, and fair disclosure to the issuing judge has no bearing on the committal hearing itself. That is enough to dispose of this application.
[19] For his part, Mr. Bytensky, counsel for Mr. Vikharev, makes three points in response:
[20] First, the Attorney General raised this issue during an earlier disclosure application and was rebuffed. Justice Brian O’Marra, on a disclosure application, dismissed the same argument: United States v. Vikharev, 2022 ONSC 2023, 2022 CarswellOnt 4069. Second, but for the abuse, Mr. Vikharev would never have come before the court. And third, the Attorney General’s argument amounts to saying that the court cannot do anything about preserving the integrity of its process where it has been abused.
[21] I do not agree that O’Marra J. finally decided this point during the disclosure application. O’Marra J. had to decide whether the disclosure request complied with the conditions set out in R. v. LaRosa, 2002 45027 (ON CA), 2002 CarswellOnt 2787, [2002] O.J. No. 3219, 166 C.C.C. (3d) 449 (Ont.C.A.) at para. 76. These conditions are:
• 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 and the testimony sought would be relevant to the allegations.
[22] At para. 6, O’Marra J. summarized Mr. Vikharev’s position on the disclosure application:
The Applicant submits that: (1) the court "might" find that an abuse of process has occurred; (2) that there is at least an air of reality to the allegation that the Respondent intentionally, recklessly or negligently misled the issuing justice to suggest that the Applicant was seeking to escape or evade justice when the Respondent know or, at least, ought to have known, that this was not so; and (3) the disclosure sought is likely relevant to an assessment of the allegations. As such, all three parts of the test for disclosure in the extradition context are met.
[23] The Attorney General argued in response:
… the Applicant has failed to demonstrate a nexus between the alleged misconduct and the extradition hearing. With no nexus to the extradition hearing the Applicant's complaints are incapable of leading to a stay of the extradition proceedings.
[24] O’Marra J. found at para. 26:
The issue at this stage is not whether the provisional warrant was issued based on false or misleading information. It is unclear whether that allegation has been made out, and if so whether it was so egregious as to amount to an abuse of process. I am satisfied that based on the Larosa criteria there should be an order for further disclosure related to this issue.
[25] In my view, O’Marra J. was only deciding whether the requested disclosure met the LaRosa test, in that there was at least an air of reality to the allegations of abuse. I do not think I am foreclosed from deciding this issue with a more fulsome record.
[26] I also do not agree that but for the abuse Mr. Vikharev would never have come before the court at all. That submission assumes that if more information had been provided to Justice Schreck, he would not have issued the PAW. Even if more information had been provided, the PAW certainly could have issued. It is impossible to know what Justice Schreck would have done. He may well have issued the PAW. There was certainly a basis upon which he could have granted the PAW, with or without the omitted information.
[27] I do, however, agree with Mr. Bytensky that this court can always do something about it when its process is abused. That is a sufficient nexus. I agree that if the court were to find that its process was abused in obtaining a PAW, and it was the clearest of cases, a stay of proceedings would be available. The court may always make a finding of abuse of process and stay a proceeding where there is an interest in denouncing misconduct and preserving the integrity of the justice system. That is the residual category described in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 at para. 32. In Federal Republic of Germany v. Ebke, 2001 NWTSC 52, 2001 CarswellNWT 78, 158 C.C.C. (3d) 253 at para. 22 Vertes J. the person sought applied for a stay of proceedings based on an improperly obtained PAW. Vertes J. had no doubt that the Court had the jurisdiction to entertain an application. See also: United States v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587.
[28] In Latina, the application for a stay was also grounded in alleged abuse in obtaining a provisional arrest warrant. Like this case, the abuse was founded on the residual category. Campbell J. noted that a nexus is required but proceeded to hear the application. He obviously assumed that there was a nexus present. I agree.
(b) Did the affidavit falsely portray Mr. Vikharev as a substantial flight risk who was seeking to escape?
[29] Mr. Bytensky argues that the affidavit did not portray an accurate picture of Mr. Vikharev’s situation. A great deal of important information about Mr. Vikharev was intentionally left out. Specifically, I take these allegations directly from Mr. Bytensky’s factum:
• The Applicant arrived in Canada with his wife (not alone), had planned to leave Canada together with his wife and had apparently spent his entire time in Canada residing with his wife;
• Shortly after arriving in Canada in 2019, the Applicant and his wife made refugee claims;
• The removal order made against the Applicant was a Departure Order, which was not yet in effect;
• The Applicant (and his wife) lived and worked lawfully and openly for nearly two years;
• Throughout this two year period, the Applicant maintained contact with Canadian immigration officials and the CBSA, and had provided accurate contact information to the Canadian authorities which (in the case of the address) had been confirmed by Constable Smith herself;
• During this two year period, Canadian immigration officials had been in touch with American immigration officials specifically relating to the Applicant;
• The reason that the Applicant was planning to leave Canada was because he and his wife voluntarily withdrew their refugee claims and voluntarily intended to depart Canada to return to Russia;
• The Applicant and his wife communicated openly and repeatedly with CBSA officials regarding their departure from Canada;
• The “interview” between the CBSA and the Applicant on May 21, 2021 was part of and/or directly related to the voluntary withdrawal of the Applicant’s refugee claim (which was finalized with the IRB only two days earlier), and the ongoing dialogue with CBSA officials about his exit from Canada was not commenced through a seemingly random interview that seemingly occurred long after his last contact with Canadian officials and more than 2.5 years after a (seemingly unconditional) validly-existing removal order had been made against the Applicant;
• The Affiant had no knowledge of an “extensive history of international travel”, and that, at most, the only international travel that would have been known to the Respondent involved an 11 year period (2010-2021), and included one flight in 2019 to Canada, plus travel on two occasions to and from the United States (where the return trip to Russia in 2017 - travel overland to Mexico and then through Cuba - had been on consecutive days as part of a connecting flight itinerary;
• There was no information known to any of the authorities to suggest that the Applicant was aware of the warrant for his arrest or of the investigation leading to the same.
[30] Mr. Bytensky’s point is that the affidavit deliberately failed to comply with the requirement of full, fair, and frank disclosure. The omitted facts may well have led the issuing judge to deny the PAW. Those material omissions painted an unfair and misleading picture of Mr. Vikharev’s status in Canada and omitted the fact that he was voluntarily departing.
[31] I respectfully disagree. It is true that the affidavit did not contain every fact known to the Canadian authorities. Full disclosure did not require every fact. Moreover, the affidavit did not paint the dire picture of Mr. Vikharev that is claimed.
[32] The standard for disclosure in an ex parte application was memorably described in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 by LeBel J. at para. 46:
Looking at matters practically in order to learn from this case for the future, what kind of affidavit should the police submit in order to seek permission to use wiretapping? The legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of material facts… So long as the affidavit meets the requisite legal norm, there is no need for it to be as lengthy as À la recherche du temps perdu, as lively as the Kama Sutra, or as detailed as an automotive repair manual. All that it must do is set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization. Ideally, an affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigation over a number of months and even of years.
[33] Full, fair, and frank disclosure means that the affiant cannot mislead the issuing judge or justice through language or strategic omissions. The affiant must also disclosure details that are unfavourable: R. v. Gero, 2021 ONCA 50 at para. 48. The affiant must not attempt to confuse or deceive the reader or obscure or mischaracterize the state of affairs: R. v. Beauchamp, 2015 ONCA 260.
[34] Watt’s Manual of Criminal Evidence describes materiality this way:
Evidence is immaterial if the proposition of fact in that it is offered to prove is not, under the governing substantive and procedural law, and issue before the court. Evidence is material if it is offered to prove or disprove a fact in issue.
[35] In the context of an application under s. 13(1) of the Extradition Act the test is this: if a fact could affect the issuing judge’s decision it is material and should be disclosed. If a fact could have no bearing on the issuing judge’s decision, it is immaterial and need not be disclosed.
[36] In my view, the omissions were not material. The affidavit did not fail to meet the requirement of full, fair, and frank disclosure. There was no attempt by the Canadian authorities to mislead the issuing judge. I found DC Smith to be a credible witness. I accept DC Smith’s evidence on that point. I need not go through every alleged material omission. I will deal with the main allegations and the overall impression left by the affidavit.
[37] DC Smith’s affidavit stated:
I have reviewed email correspondence from Pat Bono, Justice Liaison Officer with the C.B.S.A., advising the following:
• VIKHAREV entered Canada on August 18, 2019 at Pearson International Airport.
• VIKHAREV is a citizen of Russia and is a foreign national in Canada.
• A removal order was issued on November 14, 2018.
• In an interview completed on May 21, 2021, VIKHAREV notified CBSA of his intention to depart Canada.
• VIKHAREV provided CBSA with his itinerary sometime between May 28, 2021and June 3, 2021. The itinerary indicated that VIKHAREV would be departing Canada at 18:20 on Lufthansa 471 to Frankfurt and on to Russia via Lufthansa 1436, today, June 4th.
[38] It is obviously true that DC Smith did not include in the affidavit all of the information known to her and to CBSA. As Araujo makes clear, however, not every bit of information known to the authorities is required in the affidavit. It is information that is material to the issuing judge’s decision that must be included.
[39] The issuing judge would have known that Mr. Vikharev was in contact with Canadian authorities; that Mr. Vikharev was not in any kind of immigration detention; that Mr. Vikharev was subject to Canadian legal process, as there was a removal order; that Mr. Vikharev had met with CBSA officers (who had not taken him into custody); and that Mr. Vikharev had openly provided his itinerary to CBSA officers.
[40] It is true that the issuing judge would not have known that the removal order was not yet in effect, but, respectfully, what difference did that make? Surely, the key points were that Mr. Vikharev was about to get on a plane; and that he was wanted in the United States.
[41] I do not agree that the affidavit gave the impression that Mr. Vikharev had “gone underground” or was seeking to “evade justice”. I find that the affidavit would have left the issuing judge with the opposite impression: that Mr. Vikharev was in touch with CBSA and was above-board about his plans. Conditional removal orders are issued when a person makes a refugee claim. The order does not take effect until the claim is withdrawn or determined against the claimant: Immigration and Refugee Protection Act, s. 49(1). A departure notice is a type of removal order.
[42] DC Smith testified that she did not know the difference between a removal order and a departure notice. She testified that she relied on CBSA officers assigned to the Fugitive Squad to assist with the different types of orders. I do not find that to be unreasonable. The Immigration and Refugee Protection Act is complicated. The customs and immigration apparatus in this country is large and complex. Criminal lawyers quite routinely consult immigration lawyers when they have clients with immigration difficulties because the legislation and its intersection with Canadian criminal law is complicated. Failure by criminal defence counsel to consult immigration counsel might well be professionally negligent: R. v. Shiwprashad, 2015 ONCA 577. It would be unreasonable to hold police officers to a higher standard of legal knowledge than lawyers. In any event the point is largely moot. As Mr. Vikharev had withdrawn his refugee claim if the removal order was not yet in effect it would have been shortly.
[43] The issuing judge would have known that Mr. Vikharev arrived in Canada in 2019 and that he was going to leave in 2021. The issuing judge would have known that Mr. Vikharev must have had some kind of status in Canada – for the two years he was in Canada he was not in immigration custody and had communications (including an interview) with CBSA. The issuing judge would not have been left with the impression that Mr. Vikharev was underground and suddenly decided to flee. If DC Smith had truly wanted to leave a false impression, she simply could have told the issuing judge that Mr. Vikharev was about to get on a plane to Russia and left out the fact that Mr. Vikharev had cooperated with CBSA by providing his itinerary.
[44] Moreover, if the affidavit had portrayed Mr. Vikharev in the dire manner suggested it would not have been entirely inaccurate. In my respectful view, had the affidavit included every detail known to the Canadian and U.S. authorities it would not have detracted from the application. Of course, that is not the test – the test is whether those details were material to the decision the issuing judge had to make. They were not.
[45] Mr. Vikharev had lived illegally in the United States for five years. His route out of the United States was circuitous and suspicious. Although it is not clear whether the Canadian authorities knew it at the time of the application for the PAW, Mr. Vikharev had lived underground in the United States for something like five years. That was clearly relevant to the risk of flight. Certainly, Justice Roberts thought so when she denied him bail. The Americans obviously knew Mr. Vikharev had been living underground – hence DC Smith’s statement that “U.S. authorities believe that VIKHAREV is a substantial flight risk…” The belief was clearly well grounded based on the facts known to them. It is true, as Mr. Bytensky asserts, that DC Smith did not know the details of Mr. Vikharev’s history of international travel – but she did not assert that she did. She asserted that the Americans did know and did believe he was a flight risk. In her testimony, DC Smith stated that it appeared from what she knew that Mr. Vikharev did have a history of international travel. I agree that Mr. Vikharev’s history of international travel could be described as extensive. He came into the United States through Alaska. He left through Mexico. He took a roundabout route back to Russia.
[46] Disclosure of the refugee claim would not have painted a different or more favourable portrait of Mr. Vikharev. Suppose a judge had known of the claim, known the details of Mr. Vikharev’s roundabout travel to Russia, and known of Mr. Vikharev’s history of living underground in the United States. Suppose also that judge also knew that Mr. Vikharev had withdrawn the claim. I think it would have been open to a judge to conclude that the refugee claim was possibly a sham, and that Mr. Vikharev did not have a legitimate fear of persecution in Russia. Russia was hardly a peace-loving liberal democracy with the rule of law when Mr. Vikharev made his refugee claim in 2019. Russia had not become a peace-loving liberal democracy when Mr. Vikharev withdrew his refugee claim in 2021. In other words, the withdrawn refugee claim was not material. I also do not see the materiality of the fact that Mr. Vikharev was living with his wife; or the materiality of the fact that she had also made and withdrawn a refugee claim.
[47] Indeed, in her decision denying bail to Mr. Vikharev, Justice Roberts stated:
Mr. Vikharev was able to live in the United States for five years beyond the expiration of his study visa. When he eventually left the United States, he did not notify the authorities but crossed the land border into Mexico and then flew to Cuba and onto Russia. This suggests that Mr. Vikharev has some savvy in relation to living under the radar.
[48] I turn to the question of whether Mr. Vikharev was attempting to flee or evade justice. Mr. Bytensky argues that the Canadian authorities should have told the issuing judge that they did not believe that he was attempting to flee, as DC Smith testified. Mr. Bytensky further argues that s. 13(1)(a) can only apply to a person who is seeking to “evade” or “escape”. It could not, therefore, apply to Mr. Vikharev, who was in the process of openly leaving Canada. As Mr. Bytensky puts it in his factum:
As discussed above, the Treaty is premised on “urgency” and the Extradition Act specifically refers only to “escape”. If the section was meant to apply to anyone who was simply in the process of openly departing Canada, especially when that departure is part of a co-ordinated process with the involvement of Canadian immigration authorities, section 13 of the Extradition Act could have simply said so.
While departure from Canada could, in certain circumstances, justify a provisional arrest warrant, this should only occur if there is a reason to connect the departure with an intentional attempt to avoid capture by the authorities.
[49] Respectfully, I cannot agree. The question was not whether Mr. Vikharev was consciously fleeing, but whether he was leaving. I take that from the language of s. 13(1)(a) of the Extradition Act.
[50] An issuing judge must be satisfied that it is necessary in the public interest to arrest the person. The public interest may include – but does not need to – preventing the escape of that person. In other words, while an intention to escape or evade justice is a sufficient condition to issue a PAW under s. 13(1)(a) of the Extradition Act, it is not a necessary condition. That is based on the language of the statute. In this case, however, in paragraphs 18 to 20 DC Smith indicated that a PAW was necessary to prevent escape so I will deal with the argument on basis.
[51] It was known that Mr. Vikharev had booked a flight to Seattle at one point but did not take that flight. DC Smith did not assert that was an example of Mr. Vikharev’s knowledge of the arrest warrant – properly, because the authorities in Canada and the United States did not know why he didn’t get on that airplane (although they obviously had their suspicions).
[52] Mr. Bytensky argues, in essence, that the authorities must have reasonable grounds to believe that the person sought is consciously seeking to evade justice. Thus, the person sought must have some idea that they are wanted in the requesting state and is going to act on that idea before a PAW can issue.
[53] Respectfully, I cannot agree with that interpretation of s. 13(1)(a). “Escape” is not a defined term in the Criminal Code, the Extradition Act, or the Immigration and Refugee Protection Act. Black’s Law Dictionary defines “Escape” as:
The act or an instance of breaking free from confinement, restraint, or an obligation; or
An unlawful departure from legal custody without the use of force.
[54] In Re Rizzo & Rizzo Shoes, 1998 837 (SCC), [1998] 1 S.C.R. 27 at para. 21 Iacobucci J. quoted Driedger in Construction of Statutes (2nd ed. 1983) at p. 87:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[55] In my view, the words “to prevent the person from escaping” do not require a conscious intention to evade capture. The Black’s Law Dictionary definition of the verb “escape” suggests an escape from lawful confinement or custody. The prevention of escape from custody cannot have been Parliament’s intention. A provisional arrest warrant would hardly be necessary to arrest someone who is already confined.
[56] In my view, Parliament used “escape” in s. 13(1)(a) in the sense of preventing a person from departing the jurisdiction, and thus evading justice. I do not think it imports a requirement of conscious intention. In any event, the intent and the scheme of the Extradition Act suggest otherwise. Cromwell J. described the over-arching purpose of the extradition regime in M.M. at paras. 14-15:
Extradition law starts with a basic principle: while a person is in a country, he or she is subject to that country’s criminal law and should expect to be answerable to it (United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, at para. 72). Extradition is the process by which one state assists another in putting that principle into practice. The Extradiction Act implements, through domestic law, Canada’s international obligations to surrender persons found here so that they will face prosecution, or serve sentences imposed, in another country (I will limit my brief review here to extraditions which are sought for prosecution). Of course, Canada’s international obligations to surrender for extradition are subject to various conditions.
Extradition serves pressing and substantial Canadian objectives: protecting the public against crime through its investigation; bringing fugitives to justice for the proper determination of their criminal liability; and ensuring, through international cooperation, that national boundaries do not serve as a means of escape from the rule of law (Sriskandarajah v. United States of America, 2012 SCC 70 [2012] 3 S.C.R. 609, at para. 10). To achieve these pressing and substantial objectives, our extradition process is founded on the principles of “reciprocity, comity and respect for differences in other jurisdictions”: Canada (Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170, at para. 51, per Charron J. for a majority of the Court, quoting Kindler v. Canada (Minister of Justice), 1991 78 (SCC), [1991] 2 S.C.R. 779, at p. 844, per McLachlin J. (as she then was). These principles “are foundational to the effective operation of the extradition process” (Fischbacher, at para. 51) and mandate the prompt execution of Canada’s international obligations.
[57] It is unclear to me how interpreting s. 13(1)(a) to include a conscious intention would fulfill Canada’s international obligations. Canadian authorities would have to turn down a request for a PAW from an extradition partner unless there were reasonable grounds to believe that the person sought knew of the investigation and the arrest warrant. Canadian authorities could never obtain a PAW without those pre-conditions. It would frustrate, rather than facilitate, Canada’s international obligations. Many jurisdictions rely on sealed indictments and arrest warrants for obvious reasons. It cannot have been Parliament’s intent to frustrate the legal systems of our extradition partners – especially where it would not provide any extra protection for the legal rights of a person sought.
[58] Requiring a conscious intention would also lead to absurd results. This case is an excellent example: it would have meant that Mr. Vikharev was free to return to Russia – and therefore escape prosecution – because Canadian authorities did not have reasonable grounds to believe that he knew he was wanted in the United States. Does that mean that Canadian or American authorities should have given him notice that there was a warrant for his arrest? That cannot be what Parliament had in mind when s. 13(1)(a) was enacted. With great respect, the answer cannot be “well, Canadian authorities just had to let Mr. Vikharev get on that plane and go to Russia because they didn’t have reasonable grounds to believe that he knew he was wanted in the United States.” Nothing in the Extradition Act suggests such a pre-condition.
[59] Thus, whether the Canadian authorities believed that Mr. Vikharev knew he was wanted in the United States was not material to the decision made by the issuing judge. I find, therefore, that omissions from the affidavit were not material to the decision under s. 13(1)(a) of the Extradition Act. I also find that there was no attempt to mislead the issuing judge by the Canadian authorities, and no failure to make full, fair and frank disclosure.
(c) Was the urgency manufactured by the requesting state?
[60] Mr. Bytensky argues that there was no urgency to the situation. Neither the Americans nor the Canadian authorities thought he was fleeing because he was aware of proceedings in the United States. Moreover, Mr. Vikharev was living openly in Canada. Both the Canadian and the American authorities were aware of that. The Americans took no steps between April 2021 – when they knew he was in Canada – and June 2021. In other words, the urgency was entirely manufactured by the Americans be their own inaction.
[61] With respect, I cannot agree. The Extradition Act does not specifically mention urgency in the case of a provisional arrest warrant. Article 11(1) of the Extradition Treaty between Canada and the United States, however, does:
11(1) In case of urgency a Contracting Party may apply for the provisional arrest of the person sought pending the presentation of the request for extradition through the diplomatic channel. Such application shall contain a description of the person sought, an indication of intention to request the extradition of the person sought and a statement of the existence of a warrant or arrest or a judgment of conviction against that person, and such further information, if any, as would be necessary to justify the issue of a warrant of arrest had the offense been committed, or the person sought been convicted, in the territory of the requested State.
[62] Mr. Vikharev was one player (and possibly not even a major player) in a larger scheme investigated by the American authorities. As Mr. Bytensky points out, there is no evidence that Mr. Vikharev knew that he was wanted in the United States or that the American authorities had taken at least some steps to arrest him. The Americans had information that he was to visit Seattle from Canada and prepared to arrest him on arrival. He didn’t get on the airplane. It was not an unreasonable tactic for the Americans to simply wait and see if he decided to visit the United States again. They obviously could not have known that he would decide to drop his refugee claim and return to Russia. I do not accept that this was a situation manufactured by the requesting state through its own inaction. It was a situation that was created by Mr. Vikharev deciding to return to Russia, where he would have been beyond the reach of the American authorities.
(d) Is a stay of proceedings warranted? If not, should the PAW be set aside?
[63] Since the omissions were not material, there was no abuse of process. Even if I am wrong and the omissions were material, the actions of the Canadian authorities simply do not rise to the level of an abuse of process.
[64] A court may enter a stay of proceedings where the right to a fair trial (or in this case an extradition proceeding) has been prejudiced; or where prejudice to the integrity of the justice system “will be manifested, perpetuated or aggravated” by the continuation of the proceeding (the residual category). There must be no other remedy capable of addressing the prejudice: Babos at paras. 33-36. The burden the party requesting the stay is very high: a stay will only be granted in the “clearest of cases”: Babos at para. 44.
[65] In United States v. Cavan, 2015 ONCA 664, Watt J.A. stated at para. 67:
… the applicant's invocation of the residual category of abuse of process requires a showing that the state conduct risks undermining the integrity of the extradition process. Such a showing would require evidence of conduct that is offensive to societal notions of fair play and decency. Cases warranting a stay of proceedings, and thus a refusal of surrender, on this ground are exceptional and rare. Nothing that occurred here amounts to an affront to fair play and decency that is disproportionate to the societal interest in the effective discharge of our international obligations to those accused of serious crimes in the jurisdiction of our extradition partner.
[66] If the omissions were material they were not deliberate. I carefully observed DC Smith’s testimony. I carefully reviewed her evidence and I found her to be a credible witness. The Department of Justice drafted the affidavit. She deferred to the Department’s advice (for that, in essence, is what it was) as to the legal standard of what was required in the affidavit. She testified that they were the legal experts. I find that to be reasonable. A police officer can hardly be criticized for following the legal advice of Crown counsel, even if that advice turns out to be wrong: R. v. Shirose, 1999 676 (SCC), [1999] 1 S.C.R. 565 at paras. 73-75.
[67] In any event, this is hardly the clearest of cases. There is nothing like what occurred United States v. Tollman, 2015 ONSC 842. In that case, Molloy J. found that the Canadian authorities set out to deliberately thwart the extradition process by using deportation proceedings. The case is also nothing like United States v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587. In that case, the prosecutor in the requesting state indicated that if a person sought did not surrender, when he eventually did make it into custody he would become “the boyfriend of a very bad man”. In other words, he would be subject to harsh conditions, including sexual assault, if he did not cooperate. In United States v. Khadr, 2011 ONCA 358, the person sought was a Canadian citizen in Pakistan. The United States suspected he was supplying weapons to Al Qaeda. At the behest of the Americans, he was abducted in Pakistan, held in custody, and tortured.
[68] As the Attorney General points out in its factum, Tollman, Cobb, and Khadr are obvious examples of the clearest of cases. The state conduct in each of those cases was shocking. I am obviously not suggesting that torture and threats of sexual assault are the minimum requirements for a stay but nothing in the conduct of either the Canadian or American authorities in this case even approaches that level of misconduct.
[69] Aside from the residual category described in Babos, a judge also has a discretion to set aside a properly issued search warrant where the judge is satisfied that the police conduct has been subversive of the pre-authorization process: R. v. Paryniuk, 2017 ONCA 87 at para. 66. Mr. Bytensky raised this issue to argue that there are remedies that may require something less than the clearest of cases.
[70] In R. v. Kerr, 2020 ONCA 530, a police agent – colloquially a “jailhouse informant” – provided information to the police. The police obtained an authorization to intercept private communications. The affidavit did not include information that the agent was to receive sentencing consideration from the Crown in another matter. The Court of Appeal stated:
We agree that the ITO affiant should have included the information relating to Mr. Busch’s sentencing considerations. However, the standard to set aside an otherwise valid warrant is high, and meeting it may require conduct amounting to an abuse of process: Paryniuk, at para. 70. The trial judge heard the affiant’s testimony and cross-examination and found that this omission was inadvertent rather than deliberate. His finding is entitled to deference, and we see no reason to intervene.
[71] As a matter of process, what would be the material effect of setting aside the PAW? Mr. Vikharev is already in custody on a detention order, after a bail hearing in this court. Even if the discretion to set aside an otherwise valid order somehow did extend to a PAW, I would not exercise it in this case. At its highest, the authorities in this case failed to tell the issuing judge that Mr. Vikharev and his wife made refugee claims, lived openly in Canada for two years, and then withdrew those claims. There is simply no evidence of state conduct subversive of the pre-authorization process that meets the Paryniuk threshold.
DISPOSITION
[72] The abuse of process application is dismissed.
R.F. Goldstein J.
Released: November 24, 2022
COURT FILE NO.: CR-21-90000082-00MO
DATE: 20221124
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
– and –
ANTON VIKHAREV
REASONS FOR JUDGMENT ON ABUSE OF PROCESS APPLICATION
R.F. Goldstein J.
[^1]: I use the term “authorities” as shorthand to collectively describe law enforcement and prosecutorial organizations in both countries. I refer to specific organizations or individuals to provide context where necessary.