COURT FILE NO.: CR-21-90000082-00MO
DATE: 20221130
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
R.F. GOLDSTEIN J.
[1] The United States seeks the extradition of Anton Vikharev. He is wanted for participation in a tax fraud scheme. On August 10, 2022 I heard an application to stay the extradition proceedings as an abuse of process. I was scheduled to deliver my ruling on September 21, 2022. On September 21, 2022 counsel for the Attorney General provided the Court with information. I did not deliver my ruling on September 21, 2022. I held a closed proceeding on October 28, 2022. Some information about the proceeding was provided to Mr. Bytensky, counsel for Mr. Vikharev.
[2] As a result, Mr. Bytensky asked me to recuse myself from the proceedings. He did not argue that I was actually biased. He argued that there was a reasonable apprehension of bias because he (and his client) simply did not know what happened. On November 24, 2022 I dismissed the recusal application. On the same day I delivered my ruling on the abuse of process application, which I dismissed. See: United States v. Vikharev, 2022 ONSC 5048, 2022ONSC 5048. When I dismissed the recusal application, I indicated that I would provide reasons in due course. What follows are my reasons.
The Toronto Police Arrest Mr. Vikharev For His Alleged Role In A Tax Fraud
[3] In 2015 the U.S. internal Revenue Service began investigating a false refund scheme. Mr. Vikharev is alleged to have been a player in that scheme. The U.S. authorities allege that the fraudsters obtained some $11.1 million in fraudulent tax refunds between 2011 and 2016. Mr. Vikharev allegedly made several cash withdrawals from automated teller machines on 12 occasions. In May 2012 Mr. Vikharev came to the United States on a student visa. His visa expired in September 2012. He left the United States in July, 2017. He was obviously without status for most of his time in the United States.
[4] In 2019 Mr. Vikharev and his wife came to Canada. They made refugee claims. In May 2021 they abandoned those claims and made plans to return to Russia. On June 2, 2021 American authorities reached out to the Toronto Police Fugitive Squad about Mr. Vikahrev. They had information that Mr. Vikharev was going to return to Russia via Germany on June 4, 2021. The Americans transmitted a request that Canadian authorities provisionally arrest Mr. Vikharev. The Minister of Justice, through his delegate, agreed. The Attorney General, representing the United States – the extradition partner – applied for a provisional arrest warrant (PAW) from Justice Schreck of this Court. Justice Schreck granted the provisional arrest warrant on June 4, 2022. Mr. Vikharev was arrested at Pearson International Airport in Toronto as he was about to board his flight to Frankfurt. My colleague Justice Gillian Roberts denied an application for bail. Mr. Vikharev remained in custody.
Mr. Vikharev Alleges An Abuse Of Process
[5] On August 20, 2022 I heard Mr. Vikharev’s application to stay the proceedings for an abuse of process. Briefly, Mr. Bytensky argued that the Canadian authorities had misled Justice Schreck when they applied for a PAW. He argued that there were material omissions in the affidavit supporting the application. After hearing the application, I reserved my decision to September 21, 2022.
Information Provided To The Court And Follow Up
[6] On September 20, the day before I was to deliver my ruling, counsel for the Attorney General contacted me. A Summary was later prepared and provided to Mr. Bytensky. The Summary was filed as an exhibit. The Summary stated:
Summary of Information Provided to Justice Goldstein
On September 20, 2022, counsel for the Attorney General of Canada provided the Court with information disclosing a concern for public safety and a concern that impacts the proper administration of justice. In closed proceedings, on October 28, 2022, the Attorney General’s counsel filed material detailing the public safety concerns.
[7] On September 29, 2022 I held an ex parte and in camera hearing. I appointed Anil Kapoor and his associate, Mariam Sheikh, as amicus curiae. The recitals to the order appointing Mr. Kapoor set out the reasons for his appointment:
WHEREAS the Crown has provided the Court with information that raises safety and public interest privilege concerns (The Information);
AND WHEREAS the Court wishes to receive submissions on whether The Information is subject to disclosure to Mr. Vikharev and, if so, whether any privilege claim is being made;
AND WHEREAS the determination of whether The Information should be disclosed can only be determined in the absence of Mr. Vikharev and in the absence of the public in an ex parte in camera proceeding;
AND WHEREAS fair and proper adversarial litigation of these issues will require someone within the “circle of privilege” to question and challenge claims made by the Crown, and assist the Court with properly informed submissions with respect to the issues;
AND WHEREAS Counsel Anil Kapoor – a federally-appointed and security-cleared Special Advocate, permitted to conduct National Security litigation pursuant to the security certificate provisions of the Immigration and Refugee Protection Act, and has served as Amicus in s. 37 hearings related to a number of criminal proceedings where public interest privilege has been claimed over materials and information pertaining to investigative techniques and technology— has agreed to assist this Honourable Court as amicus curiae with the assistance of an associate in his office…
[8] On October 4, 2022, Mr. Bundy, counsel for the Attorney General, wrote to Mr. Bytensky. Mr. Bundy attached an affidavit and a copy of the order appointing Mr. Kapoor as amicus curiae. Mr. Bundy indicated that there would be a motion for a closed hearing pursuant to s. 27 of the Extradition Act. That section states:
The presiding judge may make an order excluding any person from the court for all or part of an extradition hearing or hearing in respect of a judicial interim release if the judge is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice to exclude the person.
[9] After hearing submissions, on October 6, 2022 I ordered that there be a closed hearing. In my view, even if s. 27 of the Extradition Act did not permit a closed hearing, it is beyond doubt that a court may control its own process. That may include restricting public access where the interests of justice require: MacIntyre v. Attorney General of Nova Scotia, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175 at para. 70. Our courts, of course, are presumptively open. In my view, however, the interests of justice in this case required that I hold an in camera hearing.
The Closed Hearing
[10] On October 28, 2022 an ex parte hearing was held. Mr. Kapoor and Ms. Sheikh were present as amicus curiae. Mr. Bundy represented the Attorney General of Canada. I determined that the information was irrelevant to anything that the court had to decide on either the abuse of process application or the extradition hearing itself. I also determined that the information could not be disclosed based on public interest privilege.
Mr. Vikharev Brings A Recusal Application
[11] On November 4, 2022 the matter resumed before me. The summary of the closed proceedings and the summary of information were provided to Mr. Bytensky. Understandably, Mr. Bytensky requested an adjournment to consider his client’s interests. Ultimately, he brought this application requesting that I recuse myself.
[12] Upon the return of the application, Mr. Bytensky argued that as a result of the developments since September 20, 2022 there was a reasonable apprehension of bias. Mr. Bytensky did not allege any actual bias on my part. Rather, his argument was that the proceedings had been tainted by the Court’s receipt of undisclosed information. That receipt was prejudicial to the rights of his client. Because neither he nor his client had any access to the information or indeed to the process, the public could no longer have confidence in the proceedings. Although Mr. Bytensky had confidence that amicus curiae had discharged the role faithfully, Mr. Kapoor and Ms. Sheikh owed no duty to Mr. Vikharev and had no solicitor-client relationship with Mr. Vikharev. They were unable properly safeguard his interests in the closed hearing. Moreover, during a criminal case an accused person has the right to be personally present: Criminal Code, s. 650(1). Although the Extradition Act does not have a similar provision, the right of an accused person to be present and hear the case against him or her is fundamental to our system of justice. Furthermore, Mr. Vikharev was unable to assess whether the information passed on to the Court could taint the trier of fact with a reasonable apprehension of bias, even unconsciously.
Analysis
[13] Let me state at the outset that it is never easy – for obvious reasons – for counsel to ask a judge to recuse him or herself. Nonetheless, when the occasion demands it, counsel must do so and ought not to shirk from their duty to zealously safeguards the rights of their clients. Although I ultimately dismissed the application, I wish to be clear that Mr. Bytensky acted with his usual professionalism in bringing the application.
[14] A judge owes a fundamental duty to render impartial decisions and to appear impartial: R. v. R.D.S., 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 120. The test for a reasonable apprehension of bias was set out by the Supreme Court of Canada by De Grandpre J. (in dissent but not on this point) in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369:
As already seen by the quotation above, the apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would a informed person, viewing the matter realistically and practically--and having thought the matter through--conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly."
[15] As Abella J. explained in Yukon Francophone School Board v. Attorney General of Yukon, 2015 SCC 25, [2015] 2 S.C.R. 282, the purpose of the test is to ensure the appearance as well as the reality of a fair process. There is a strong presumption of judicial impartiality. As a result, recusal requires a real likelihood or probability of bias or apprehended bias. The inquiry is contextual and fact specific. There is a high burden on the party alleging the bias, or apprehension of bias: Yukon Francophone School Board at paras. 22, 25, 26.
[16] In this case, Mr. Bundy, counsel for the Attorney General of Canada, one of the parties to the litigation quite properly conveyed information to me. That information raised “safety and public interest privilege concerns.” The information certainly did raise those concerns, but I was also concerned –as reflected in the recitals to the order appointing amicus curiae – about whether that information (or any part of it) could be or should be disclosed to counsel for Mr. Vikharev. On the same day that I received the information I contacted Mr. Kapoor – a prominent criminal defence lawyer who is experienced in dealing with federal security certificate cases – and asked that he act as amicus curiae. Mr. Kapoor agreed. The next day, September 21, 2022, I informed the parties that I was not in a position to deliver my ruling. Mr. Kapoor was appointed along with his associate, Ms. Sheikh, in a formal order. The information that was conveyed to me by the Attorney General was provided to Mr. Kapoor and Ms. Sheikh. They were (and remain) prohibited from disclosing it without a court order.
[17] The role of Mr. Kapoor and Ms. Sheikh was set out in an Appendix to the order appointing him:
The role of Amicus Curiae is to assist the Court with determinations relevant to disclosure issues arising from The Information, and to protect Mr. Vikharev’s interests when he is excluded from the proceeding; as such, the Amicus Curiae will have the following broad mandate:
a) to make submissions to the Court as to whether The Information is subject to disclosure, and
b) to make submissions to the Court should the Crown claim privilege over all or any part of The Information.
[18] The information was duly provided to Mr. Kapoor and Ms. Sheikh. Mr. Bundy informed Mr. Bytensky by letter about the appointment, the terms of the order, and the fact that a closed hearing would be held. The hearing was then held on October 28, 2022. The following summary of closed proceedings was subsequently provided to Mr. Bytensky:
A. The Closed Proceeding
On October 28, 2022, an ex parte in camera proceeding was held in person pursuant to s. 27 of the Extradition Act (“Closed Proceeding”).
B. Materials Filed In the Closed Proceeding
Counsel filed the following materials with the Court:
• Amici Curiae’s Memorandum of Law, and
• Crown’s Record on the Closed Proceedings
In addition, several exhibits were filed during the closed proceeding.
C. Submissions
In the Closed Proceeding, counsel for the Attorney General of Canada and amici curiae addressed the court on whether the information provided ex parte to the Court should be disclosed to Mr. Vikharev. Counsel made submissions on the information’s relevance to the extradition and abuse of process proceedings and (if relevant) whether public interest privilege protects the information from disclosure.
Submissions relied on the written materials, which canvassed case law on the limited disclosure obligations in extradition proceedings.
Counsel addressed whether summaries of the information provided to the court and of the oral portion of the Closed Proceeding should be provided to Mr. Vikharev and his counsel. Counsel jointly tendered a proposed summary of the information to be disclosed.
No viva voce evidence was heard.
D. The Ruling
The Court found that the information was irrelevant to both the abuse of process application and the extradition proceedings. The Court further held that, even if the information was relevant, it would clearly be caught by public interest privilege. As such, the Court ruled that the information should not be disclosed.
The Court ordered that summaries, as proposed by counsel, be prepared for the Court’s approval and released to Mr. Vikharev and his counsel.
[19] As noted, Mr. Bytensky then brought this recusal motion.
[20] Would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude that it is more likely than not that I would – whether consciously or unconsciously – decide fairly? In my view, the answer is “yes”.
[21] One of my objectives upon receiving the information was to balance the interests of Mr. Vikharev and the state interest in safeguarding public safety and maintaining a public interest privilege. The balancing exercise had some features in common with a Garofoli Step 6 proceeding: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at p. 1458; R. v. Crevier, 2015 ONCA 619 at para. 42. Judges, of course, are required to balance competing interests all the time. It is integral to what a judge does.
[22] Here, counsel for the Attorney General, an experienced federal prosecutor, was not the only person present and making submissions at the closed hearing. I also had the benefit of submissions from a leading criminal defence lawyer well versed in issues of privilege and public safety. Although that lawyer was not in a solicitor-client relationship with Mr. Vikharev, he was well-placed to consider and protect Mr. Vikharev’s interests. A hearing was held on the record. Sealed exhibits were filed. The evidence as well as my reasons form part of the sealed record. That record will be available for another court to review, if necessary.
[23] Although the solution may not have been ideal from Mr. Vikharev’s point of view, that is not the test. Section 7 of the Charter guarantees “a fair process, having regard to the nature of the proceedings at issue”: United States v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77 at para. 14. Mr. Vikharev is entitled to a fair process, not the most favourable procedures imaginable: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at para. 108.
[24] Under the circumstances, I believe an informed member of the public would find that the process was fundamentally fair to Mr. Vikharev. An informed person would understand that a court is often required to balance competing legitimate interests – and would be aware that there were competing legitimate interests here. An informed person would also understand that amicus curiae was present to raise issues that could be raised by counsel for Mr. Vikharev. An informed person, having thought the matter through, would not find that the procedures adopted would raise a reasonable apprehension of bias.
[25] Strong policy reasons also militate against a recusal. It would be far too easy for a litigant to rid him or herself of a judge he or she didn’t like simply by having an unsolicited ex parte communication. To set the threshold so low would encourage unscrupulous litigants. Surely the key point is not the fact of the communication, but rather the manner by which it is dealt with by the court.
[26] That point is made in R. v. M.M., 2022 ONCA 63. The accused was on trial before a judge of the Ontario Court of Justice for sexual assault and sexual interference regarding a child. In the secure area accessible to judges, justices of the peace, and court staff, a sitting justice of the peace approached the trial judge. The justice of the peace informed the trial judge that she was the mother of the accused’s former spouse and grandmother of his children. She asked if she could attend the trial. The trial judge indicated that it was a public courtroom, and anyone could attend. The justice of the peace returned a few moments later saying she would not attend as the accused objected. Upon resumption of the trial, the trial judge put his recollection of the events on the record before the parties. Counsel for the accused brought an application for a mistrial. The trial judge dismissed it. He subsequently convicted the accused. On appeal, the accused argued that the trial judge should have granted the mistrial. The Court of Appeal applied the test in Yukon Francophone School Board, noting that there were no cases where a judicial officer had approached another judicial officer. Sossin J.A. noted that had the judge done nothing but acknowledge the encounter, a reasonable apprehension of bias may have remained. Instead, the trial judge took important steps to mitigate the appearance of unfairness, including putting his recollection of the encounters on the record; hearing and considering submissions of counsel; and explaining why he believed he could remain unbiased. As Sossin J.A. noted at para. 35, because of the steps taken by the trial judge “a reasonable observer would not be more likely than not to conclude that the trial judge was biased.”
[27] Mr. Bytensky points to Ontario Human Rights Commission v. Toneguzzo, 2005 HRTO 9. The complainant alleged a breach of the Ontario Human Rights Code by Kimberley-Clark during her employment. The dispute related, at least in part, to the complainant’s eligibility for long-term disability benefits. The insurance company responsible for Kimberly-Clark’s employee benefits was Manulife. The adjudicator, a law professor, became aware that Manulife’s actions were relevant to the proceedings, although Manulife was not a respondent. The adjudicator was a consultant to a law firm that was acting for the plaintiffs in a class-action lawsuit involving Manulife. Although he was not acting as a solicitor the plaintiff’s solicitors had barred him from providing more information about the nature of his retainer. He disclosed that to the parties and invited them to bring a recusal motion. Kimberly-Clark did so. The adjudicator stated at paras. 41 and 42:
… I accept that the parties were entitled to more disclosure of the nature of my engagement in the class action suit against Manulife. Without that fuller disclosure in a situation already at least close to the line, Kimberly-Clark is justified in asserting that they do not have enough information on which to assess whether there is a reasonable apprehension of bias…
… there may come a point (and perhaps very soon) at which the status of Manulife will have to be clarified. In that context, any situation in which Manulife was served with notice of these proceedings with a view to determining whether it should be added as a party or even put on notice, would introduce Manulife itself into the proceedings directly. Once again, were I to continue to serve, I would have to disclose my involvement in the class action suit to Manulife, and it is quite likely that counsel for Manulife would make a motion for recusal…
[28] The adjudicator then recused himself.
[29] Toneguzzo is readily distinguishable. In that case, the adjudicator was directly involved with a corporation that may have become involved in the very litigation before the tribunal. That party refused to permit him to answer questions relevant to whether the adjudicator was actually biased. In doing so, the adjudicator was unable to answer questions that would allow the parties to judge whether he could decide the case fairly. He was placed in a situation that raised a reasonable apprehension of bias.
[30] In my respectful view, the facts are very different here. Human Rights Tribunal adjudicators work part-time and usually have other jobs. That is what happened in Toneguzzo, where the adjudicator received information through his unrelated consulting work. In contrast, I am not directly involved with either party. I only received information from one of the parties in my capacity as a judge.
Disposition
[31] As noted, on November 24, 2022 I dismissed the recusal application.
R.F. Goldstein J.
Released: November 30, 2022
COURT FILE NO.: CR-21-90000082-00MO
DATE: 20221130
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 RECUSAL APPLICATION
R.F. Goldstein J.