Court File and Parties
COURT FILE NO.: CR-22-90000047-00MO DATE: 20230613 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Requesting State/Respondent
- and-
SABRINA ELOFER aka SABRINA SARA; MILA MORALES Person Sought for Extradition/Applicant
Counsel: A. Rice, for the Respondent/Requesting State L. Adler and K. Gray, for the Applicant/Person Sought for Extradition
HEARD: May 24, 2023, at Toronto, Ontario
Michael G. Quigley J.
Reasons For Decision Request for Reconsideration
[1] The United States of America asked Canada to extradite Ms. Sabrina Elofer (the "Applicant" or "Ms. Elofer") to face charges arising from her alleged participation in a telemarketing fraud scheme that operated from Israel between 2014 and 2016.
[2] The extradition process commenced in Canada in 2021 under ss. 29(1)(a) of the Extradition Act, S.C. 1999, c. 18, (the "Act''). A warrant was obtained from the British Columbia Supreme Court for Ms. Elofer's arrest.
[3] Ms. Elofer was arrested in Toronto a year later, on May 2, 2022. She was released on bail shortly after her arrest, pending the scheduling of a committal hearing and a judicial determination of whether she should be committed for extradition.
[4] On March 16, 2023, Ms. Elofer brought an application before me, in which she sought orders for extraordinary disclosure relating to the issuance of her arrest warrant and for leave to cross-examine all police officers involved in the matter, including those who arrested her in Toronto on May 2, 2022.
[5] On April 23, 2023, I dismissed the applications brought by Ms. Elofer for additional disclosure relating to the issuance of her arrest warrant, and for leave to cross-examine the police officers who arrested her on May 2, 2022. I also dismissed her overall application for a stay of these extradition proceedings based upon her allegations of abusive state conduct.
[6] In submissions made before me on May 24, 2023, counsel for Ms. Elofer asks me to reconsider my decision. He asks that I reopen it to be reheard. He accepts that the Applicant's request for extraordinary disclosure has been dismissed but argues that I should not have considered or decided whether to grant leave to cross-examine the police officers, or the question of whether there is any air of reality to Ms. Elofer's abuse of process claim that could justify a stay in these proceedings. He submits neither issue was "on the table" that day, and he calls upon me to re-open the application and schedule a new hearing for submissions on the question of leave to cross-examine, to be heard by another judge of this court.
[7] Counsel for the Attorney General (sometimes referred to as the "A.G." or "the Attorney") vigorously opposes the Applicant's claim that these proceedings should be stayed owing to alleged abusive state conduct and resists the Applicant's efforts to re-open this matter for reconsideration. She says I made no error in deciding the matter as I did, and that there is no legal justification to reopen it, or to use further court resources to deal with it, apart from the need for a committal hearing, which she argues should now be scheduled without further delay.
[8] The question raised for me to decide is whether, and in what circumstances, an extradition judge may reopen or reconsider a decision on a preliminary application and whether it should be done here.
Background
[9] Ms. Elofer brought this application because she claims that in obtaining the warrant for her arrest on behalf of the Attorney General, and in executing the arrest warrant that was issued by the British Columbia Supreme Court, police authorities in British Columbia and Ontario breached her rights under ss. 7 to 9 of the Canadian Charter of Rights and Freedoms (the "Charter"). While there was a suggestion in oral submissions that the police authorities also violated the Applicant's section 10 Charter rights relative to rights to counsel, that issue was not raised in the Applicant's materials or the Application record, so I did not consider it further.
[10] The Application materials specifically requested findings that there were abuses of process committed by the police authorities involved in the matter that call for an order granting the extraordinary remedy of a stay of these proceedings. The Applicant also requested orders for extraordinary disclosure and leave to cross-examine the police officers. The stated purpose of those requests was to potentially elicit evidence that would inform and support her contention that the State engaged in abusive conduct and her overall request that the proceedings must be stayed.
[11] Counsel had initially agreed that two dates would be set for the argument of the application: March 16 to argue the first component, a request for extraordinary disclosure, and April 27 to argue the second component, a request for leave to cross-examine the police officers.
[12] On February 15, 2023, Mr. Adler, Counsel for the Applicant, served and filed her materials in support of the Application. Those documents request "disclosure and cross-examination" of "peace officers and other government agencies", a "stay of extradition", as set out in a combined Application Record.
[13] On February 16, Ms. Rice confirmed receipt but also asked Mr. Adler if he intended to argue the leave application on March 16 as well. I conclude from reviewing the Application Record that she asked that question because the materials filed by the Applicant addressed the entirety of the stay application, including not only the requests for disclosure and leave to cross-examine, but also the grounds alleged to support a finding of abuse of process that could support the Applicant's request that the entire proceedings be stayed.
[14] Mr. Adler responded that "March 16 is just the application for disclosure; April 27 is the application for leave to x-ex." As he later explained, the bifurcation of the application was scheduled in the expectation or possibility that an order for disclosure would be made, and that further evidence would be elicited, that could impact on the request for leave to cross-examine.
[15] The initial hearing took a full day on March 16, ending well past the usual 4:30 end of the court day. Logically, April 27 was set as the return date as that was the date upon which the Applicant proposed to argue for leave to cross-examine the police officers.
[16] I accept that it is Mr. Adler's position that in his argument on March 16, he was only arguing the disclosure issue, and that he believed argument for leave to cross-examine the police officers would come on another day, April 27. It was also his position that the issue of the stay itself would also have to await another day, because only then could it be known whether further evidence would have emerged relevant to the stay application.
[17] I also acknowledge that the principal focus of Mr. Adler's submissions on March 16 was on the Applicant's request for orders permitting disclosure, though it is also evident from the transcript that he did speak to other elements of the application as well, and in some respects made relatively fulsome submissions, as I discuss below. While his entire factual and legal position was set out in the Application materials, defence counsel says he has been denied an additional opportunity to make more fulsome oral submissions on the leave to cross-examine question, and on whether the Applicant's claims of egregious breaches of her Charter rights have an air of reality to them.
[18] The A.G.'s oral submissions on March 16 were much broader than those of defence counsel. They embraced the entirety of the application for a stay and its constituent components, not only the request for the orders for extraordinary disclosure but also the request for leave to cross-examine.
[19] The Attorney argued that the entire application should be dismissed without the need to waste further court time. She took that position because looked at through the lens of the tests in R. v. LaRose, she asserted that the Applicant had failed to establish entitlement on the face of the record to the disclosure she requested and failed to demonstrate that her Charter rights were breached when she was arrested. More importantly from the Attorney's perspective, the application should be dismissed because the Applicant was unable to demonstrate the required nexus between the misconduct she alleged and my role as an extradition judge.
[20] At the end of submissions on March 16, I reserved my decision. My reasons were not yet finalized as the April 27 return date was approaching, so I briefly advised counsel of my decision and findings in a formal letter, dated April 19, 2023, and then sent my final Reasons for Decision to both counsel four days later, on April 23, 2023. That decision is reported at 2023 ONSC 2474.
[21] In that decision I reached the following findings and conclusions: (i) There was no breach of the Applicant's Charter rights arising out of or in relation to the issuance of the warrant for her arrest by the British Columbia Supreme Court; (ii) There was no breach of the Applicant's Charter rights arising out of or in relation to the manner in which police authorities in Toronto executed that valid warrant and placed Ms. Elofer under arrest; (iii) That in light of findings (i) and (ii), the Applicant's requests for extraordinary disclosure should be dismissed because there was no air of reality to support the grounds for either of the extended disclosure requests; (iv) That in light of findings (i) and (ii) and (iii), the Applicant's request to cross-examine the police officers should be dismissed because there were no grounds that met the air of reality test to permit cross-examination of the police officers in British Columbia or Ontario on the record that remained; and finally, (v) That not only could I find no "air of reality" within the meaning of the LaRose test to support the Applicant's claims as a whole, but also that she had not established the required "nexus" of the claimed abuse of process to the committal hearing process itself, as that required to support the extraordinary remedy that she requested of a stay of the extradition proceedings.
[22] In the result, and having regard to my gatekeeping function as the extradition judge, I dismissed Ms. Elofer's application for a stay of proceedings in its entirety, including the subsidiary requests for extraordinary disclosure and leave to cross-examine the police officers. Based upon the extensive written materials filed and the oral submissions that were made on March 16, I concluded that the entire application should be dismissed and that the absence of an air of reality to the claims of abusive state conduct eliminated any need to devote further court resources, limited as they are, to further hearings and submissions.
Issues and position of the parties
[23] Counsel for the Defence asserted that the March 16 hearing date was to be restricted solely to the issue of whether an order for disclosure should issue, even though he acknowledged that the A.G. had argued the entire matter on its merits that day. He said: So, I made it very clear, again, that this was simply a disclosure application and while my friend went beyond that, I just wasn't dealing with it and I certainly wasn't prepared to deal with it because the stay application - much of it depended on the disclosure. (My emphasis)
[24] Defence counsel's overall submission on this reconsideration application was that by deciding the matter in its entirety, Ms. Elofer did not have the opportunity to make further, more focused oral submissions on later dates on the issue of leave to cross-examine and on the abuse of process claim itself, when, at least in his view, those two other issues were not on the table on that day in March.
[25] He submits that the matter itself is not res judicata, and that I retain the discretionary powers of a trial judge to reopen and reconsider even though this occurred in the course of an extradition proceeding and not a trial.
[26] Mr. Adler went on to state: I think that you do have the same type of powers [as a trial judge] because the equivalence, if you will, of a final order as a trial judge, which is the signing of the sentencing, or as the Court of Appeal pointed out, the taking out of an order, is the committal order. That's the final aspect of an extradition hearing after a committal hearing. We certainly have not had a committal hearing. So, I say to Your Honour, that, and again, I'm not going to dispute, certainly not before Your Honour, the issue of disclosure that you've rejected, but I say to Your Honour that I'm entitled to a proper hearing with proper case law and proper submissions on the other two issues, which did not occur. The remedy, with great respect, is to then proceed, and I think under the circumstances, with a different judge to deal with the issue of the cross-examination. Depending on what happens, it then goes on to a possible committal hearing.
[27] Counsel for the Attorney, on the other hand, emphasized that she was asking for the dismissal of the entire matter on March 16, and she takes the position that I have made findings and final determinations on all the issues. Consequently, she contends that the matter has been decided and that I am now functus officio and have no further jurisdiction to alter that result. She responded directly to defence counsel's assertion that as a result of their scheduling, the A.G. was bound to come back another day to argue the leave to cross-examine, regardless of what the outcome was on the application for disclosure.
[28] As Ms. Rice observed, it was only after receiving the Applicant's fulsome materials, the complete application record for the stay of proceedings and the underlying constituent components, that she filed her written submissions on March 17 on behalf of the A.G. In her submission, the Attorney General could not be bound, either to a return appearance on another day, or be prevented from making all embracing argument at the first opportunity to have the entirety of the application dismissed.
[29] Not surprisingly, the Attorney General observed it could only fully develop its responding position to the Applicant's arguments once he knew what the Applicant intended to argue in support of her claims. If the A.G. considered it to be an unmeritorious argument, which it did, then the A.G. maintained that it should have and did remain open for him to ask the Court to dismiss deal the application without further appearances, so as to not waste the court's time.
[30] The A.G.'s responding materials show that the relief it sought was that all the applications be dismissed in their entirety. Counsel for the A.G. argued that the position the Attorney General took on the matter as a whole was clear from the written submissions, and so there was no prejudice to the Applicant that the Crown argued as she did. I accept that the record does show that she did not resile from that position at the oral hearing.
[31] Importantly, counsel for the A.G. also conceded that recent appellate jurisprudence affirms that there are circumstances where I would have the discretionary power to reopen the matter, as discussed below, but she claims this is not one of those circumstances. She argues I made no error in disposing of the matter as I have, and because the interests of justice in the context of this extradition proceeding cannot justify the resources that would be expended to provide another hearing on matters that have already been decided. She takes that position based upon her contention, not only that the Applicant had not satisfied the air of reality test necessary to permit a finding of abuse of process which could permit a stay of these extradition proceedings to be granted, but also having regard to the need for expedition in respecting our international treaty obligations.
Legal principles
(i) Reconsideration of previously decided matters
[32] When this issue first arose after I had released my decision, the position of the parties appeared to focus on their respective contentions whether, as the presiding applications judge, I was functus officio, as distinct from the question whether the matter itself was res judicata as it relates to the court.
[33] The scope of the functus officio principle is helpfully described in the Supreme Court decision in Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, at paras. 33-34. The phrase itself means that a final decision of a court that is susceptible of appeal cannot, as a general rule, be reconsidered by the court that rendered that decision. It is said that once the formal judgment has been entered, the court loses jurisdiction. Thereafter a court will have the power to amend a judgment only in very limited circumstances, such as where there is a statutory basis to do so, where necessary to correct an error in expressing its manifest intention, or where the matter has not been heard on its merits. The rule serves goals of finality and, by stabilizing judgments subject to review, an orderly appellate procedure.
[34] At least within the context of a criminal trial, the caselaw advanced by defence counsel does support his position that a trial judge retains the discretion to reopen a case where there are circumstances that require it, at any time up until the entering of the order of committal, sentencing the offender after having been convicted at trial.
[35] In the leading authority decided almost fifty years ago, R. v. Lessard, [1976] O.J. No. 74, Martin J.A instructs that where a trial is presided over by a judge alone without a jury, it is a long-accepted principle that the judge may allow an accused to change his plea from guilty to not guilty at any time before the imposition of sentence. Even though the court may have accepted the plea at the time it was entered, and even after a plea inquiry under s. 606 of the Criminal Code, it can be changed at any time before sentence is imposed because until that time the proceedings have not been completed.
[36] The Court of Appeal affirmed these principles in R. v. Griffith, 2013 ONCA 510 at para. 12, but it also emphasized Martin J.A.'s caution that the power to vacate the adjudication of guilt after a trial "should only be exercised in exceptional circumstances and where its exercise is clearly called for."
[37] The principle extends as well to the appellate context. In R. v. Smithen Davies, 2020 ONCA 759, the Court of Appeal permitted the re-opening of an appeal against conviction more than six months after convictions were upheld, on the basis that no final order was ever entered by the Registrar after the appeal was decided. Crown counsel objected, claiming that the court was functus once it had released its reasons on the appeal, but the court rejected that assertion and instead affirmed the prevailing view that the doctrine of functus officio only arises after the entry of the order disposing of the appeal, not the giving or release of reasons for the decision. As such, an appellate court that hears an appeal on its merits and issues reasons for its dismissal of that appeal is not functus officio and retains a discretion to permit re-opening in those circumstances.
[38] At paras. 56-57 of the decision, Watt J.A. comments on the "interests of justice" issue, also of interest here, that the reopening of any case necessarily entails (citations omitted):
[56] The re-opening decision requires consideration of all the circumstances. Two competing principles are at work. The need for finality in criminal litigation favours a restrictive approach. Prevention of potential miscarriages of justice, on the other hand, supports a more expansive approach. The "interests of justice" includes both the interest of the accused in having their guilt adjudicated on the basis of all the available evidence, and that of the state in the integrity of the criminal justice process including its finality and order.
[57] The "interests of justice" standard to permit re-opening of an appeal heard and determined on its merits requires a case-specific examination of all the circumstances. An all-inclusive list of relevant factors eludes composition, but among those a court might consider are these: i. the principle of finality; ii. the risk of a miscarriage of justice; iii. the cogency of the case for re-opening; iv. the nature of the error or omission alleged to require re-opening; and v. the significance of the error to the disposition of the appeal. (My emphasis)
[39] Returning to the case at hand, I find it important to note that defence counsel's submission seeking to apply this caselaw to the present circumstances on this extradition proceeding is advanced solely on the basis of analogy, and not by a claim of direct relevance of that caselaw to the issues that are at stake in this application. In other words, defence counsel calls these principles into play on the basis of his submission that the circumstances here are analogous to those at a trial and that, as he puts it, calls for the presence of an "equivalence" to the final order a trial judge makes, the signing of the sentencing order or the taking out of an order ending the proceeding, before the matter or the powers of the presiding judge are functus. If correct, this means that an extradition judge would have discretion to re-open any aspect of the extradition proceeding until the committal order is made, that being the equivalent, in his submission, of the final order imposing sentence upon an offender convicted of an offence at trial.
[40] The cases advanced by defence counsel emphasize that the innocent should not be allowed to be convicted. There is nothing shocking in that proposition. It will always be the duty of the Court to clear those who are innocent of the crimes alleged against them, even if it requires a re-opening of a trial. This follows because the power to reopen is founded on the duty of the court to clear the innocent -- a duty "equal or superior in importance to its duty to convict and punish the guilty": see S. (An Infant) v. Recorder of Manchester, [1971] A.C. 481 (H.L.) referred to by Rosenberg J.A. at para. 16 of Griffith.
[41] However, these cases do not distinguish between the principles that are applicable in criminal trials where innocence is at stake, and the circumstances of extradition proceedings where the only issues are the principles of double criminality, and that the Person Sought who is alleged to be prima facie culpable for the alleged offences under the law of the Requesting State, is indeed the accused before the court.
[42] The case law shows that extraditions are fundamentally different from criminal trials. They do not deal with or make determinations of guilt or innocence. Both counsels have acknowledged this difference in both their written and oral submissions.
[43] Certainly, the presumption of innocence of the Person Sought is engaged in an extradition proceeding, and the Person Sought continues to be assumed innocent through the extradition process, because the question of guilt will only be determined by the courts of the Requesting State if the Person Sought has been extradited, and once he or she has had their trial under the laws of that state. The Person Sought is not accused of offences under our law, but only under the law of the Requesting State.
[44] However, as the court emphasized in Smithen-Davis, that also means that there is no adjudication of guilt or innocence of the Applicant in this case which could directly call the principles of this caselaw into play. Nevertheless, I do generally accept defence counsel's position, and I agree that I would be able to reopen this matter, as he has requested, if I find that the circumstances and the "interests of justice", as Watt J.A. described them above, call for it.
(ii) The decision in R. v. R. V.
[45] In my view, R. v. R.V., [2018] O.J. No. 3162, 2018 ONCA 547, is the decision that most squarely addresses the issue in this case is. In that case an unusual set of circumstances was in play that gave rise to questions requiring a later judge to determine whether he was bound by the decision of an earlier judge, and whether the core issue decided by the earlier judge could be re-opened in the middle of the trial.
[46] The case involved allegations of sexual assault. In R. V., the accused was convicted of sexual assault and sexual interference. The context for the decision as it relates to this case was an application under s. 276 of the Criminal Code to permit the complainant to be cross-examined on specific instances of relevant prior sexual experience.
[47] The importance of the decision in the context of the issues in the present case lies in the Court's finding that the trial judge had erred in holding that the application judge's s. 276 ruling was binding on him. It found that when a judge becomes seized of a matter under s. 669.2, s/he becomes the trial judge for all purposes and has the same authority that the replaced judge had, including the power to reconsider prior rulings when it is in the interests of justice to do so.
[48] In R. V., changes in circumstances as the trial progressed would otherwise have made it appropriate to reconsider the original s. 276 ruling, but the trial judge's erroneous conclusion that he was bound by that ruling effectively precluded applications to reconsider that ruling made during the trial. On this basis, the conviction was set aside, and a new trial was ordered.
[49] At paras. 99-103, Pacciocco J.A. sets out the principles applicable to the power of a trial judge to reconsider earlier rulings made within a trial (citations and references omitted):
[99] The principles of res judicata do not apply during a hearing to decisions reached by a judge during that hearing, and a judge is not functus officio when a voir dire has ended. As Sopinka J. affirmed in R. v. Adams, judges who are not functus officio have jurisdiction to reconsider and vary the orders that are made within a trial, in the interests of justice. Justice Sopinka said, at para. 30: As a general rule, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at the time the order was made have materially changed. In order to be material, the change must relate to a matter that justified the making of the order in the first place.
[100] Indeed, this court has held that a trial judge can change their mind up until the point when the accused has been sentenced: R. v. Lessard.
[101] There are, of course, limits on the authority to reconsider. It should not be used without circumspection because of the interest in finality and clarity. Nor can reconsideration produce unfairness. For example, it may not be appropriate to reconsider rulings that have been relied upon by one of the parties in forming a trial strategy, unless the prejudice incurred in reliance on the ruling can be remedied.
[102] The most common circumstance where it may be in the interests of justice to reconsider rulings is where facts have materially changed.
[103] However, this is not the only circumstance. Rulings have also been re-opened where a party has misunderstood the scope of an admission, or because counsel was unaware of relevant evidence at the time. A trial judge may also correct a decision that they discover was made in error.
(iii) Availability of summary dismissal and the Courts role as gatekeeper
[50] There are two other legal aspects to this matter that I find it important to bear in mind on this application for reconsideration. The first is the availability of summary dismissal in criminal trials, and evidently also in extradition cases. The second is to remember the specific gatekeeping function served by the extradition judge, compared to that of a trial judge.
[51] The availability of a summary dismissal procedure in cases like this was noted in the submissions of both counsels. It appears able to be used by the prosecutor in a criminal matter to seek a summary ruling dismissing all the relief sought by an applicant.
[52] Its genesis was a 1996 decision in British Columbia in R. v. Vukelich (1996), 78 B.C.A.C. 113 which dealt with whether a trial judge could summarily deny an accused's request for a voir dire in a trial relating to alleged conduct by police that was said to constitute abuse of process.
[53] In Ontario, the procedure is set out in Rule 34.02 of the Ontario Superior Court Rules of Criminal Procedure ("CPR"), which provides: The presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.
[54] In R. v. Glegg, 2021 ONCA 100, at para. 36, Watt J.A. wrote that: Rule 34.02 is essential to effective and fair litigation. It promotes two goals: efficiency and correct results. Dismissing applications that have no reasonable prospect of success unclutters the proceedings, weeds out the hopeless, and draws the attention of the decision-makers where it should be - ensuring that those with a reasonable prospect of success proceed to adjudication on their merits: Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 (S.C.C.), at para. 19.
[55] A so-called Vukelich application occurs before the court hears the merits of the underlying application. It asks: should the underlying application be summarily dismissed, or should it be allowed to proceed to a voir dire? Further, given the finality of the potential result, what standard should be applied in determining whether an application should be dismissed summarily, or allowed to proceed?
[56] Those questions were answered earlier this year by the Supreme Court in R. v. Haevischer, 2023 SCC 11, 2023 CSC 11. Writing for the court, Martin J. noted the clear consensus across Canada that trial judges have the power to summarily dismiss applications made in the criminal law context in certain circumstances. At para. 3, she sets out the standard to be applied in criminal cases to summarily dismiss an application for a stay of proceedings for abuse of process without a full hearing: ... an application in a criminal proceeding, including for a stay of proceedings for abuse of process, should only be summarily dismissed if the application is "manifestly frivolous". This threshold best preserves fair trials, protects the accused's right to full answer and defence, and ensures efficient court proceedings. It is a rigorous standard that allows trial judges to weed out the sort of applications that the summary dismissal power is designed to exclude but permits most applications to be decided on their merits in proportionate proceedings. (My emphasis)
[57] Both defence and Crown counsel, respectively, referred to recent decisions relating to the use of this procedure in an extradition context. Defence counsel referred to United States of America v. Rowe, 2023 BCSC 849, and the A.G. briefly referred to United States of America v. Bhatia, 2023 ONSC 2869. Both were cases seeking disclosure in connection with abuse of process claims.
[58] In Rowe, the A.G. sought the extradition of Michael Rowe on behalf of the United States in relation to conduct that would have amounted in Canada to the offence of sexual assault contrary to s. 271 of the Criminal Code. Mr. Rowe objected to the admission of the supplementary record of case ("SROC") as an abuse of process contrary to s. 7 of the Charter, and sought its exclusion under s. 24. In response, the United States brought a Vukelich application. In light of the recent decision in Haevischer, the application judge affirmed that the obligation was on the United States to show that Mr. Rowe's underlying application was "manifestly frivolous", in the sense that it was obviously bound to fail: Haevischer at paras 71 to 83.
[59] In his decision granting the United States' summary dismissal application, Ilry J. emphasized that the role of an extradition judge differs from the role of a preliminary inquiry judge in two important respects: first, an extradition judge may grant Charter remedies pertaining to issues, but only provided they are "relevant to committal"; and second, the judge "must engage in limited weighing of the evidence to determine whether there is a plausible case for committal of the Person Sought": see MM v. United States, 2015 SCC 62 at para. 40.
[60] Turning to Bhatia, I acknowledge that there was no formal discussion of that decision by either counsel during these submissions. It was simply referred to briefly by counsel for the A.G. as another recent example of the summary dismissal procedure having been used in the extradition context. It is a very recent decision (May 10, 2023) by a respected criminal judge of this court, Miller J., that provides insight into questions arising in the context of a summary dismissal proceeding in an extradition matter. It was decided only two weeks before I heard these submissions. It is because it approaches the summary dismissal issue from a slightly different perspective than in Rowe, and arguably through a lens that more closely approximates the circumstances of this case.
[61] In Bhatia, as in Rowe, the Person Sought brought a disclosure application during the committal hearing scheduled for his extradition and the A.G. applied for summary dismissal of that application. The United States sought Mr. Bhatia's extradition to face charges corresponding under American law to the Canadian offence of fraud, contrary to ss. 380(1) of the Criminal Code.
[62] In Mr. Bhatia's application, he sought disclosure of a criminal record and plea agreement for the person identified in the ROC as Cooperating Witness 1 ("CW-1") to enable him to make the argument at his extradition hearing that CW-1's evidence identifying him should be excluded on the basis that it was manifestly unreliable.
[63] The A.G. submitted that Mr. Bhatia's application for disclosure did not show a substantial ground for the disclosure order sought, which the A.G. contended was contrary to settled case law. Moreover, the A.G. conceded that the ROC contained sufficient evidence apart from CW-1's anticipated evidence, to establish Mr. Bhatia's identification, sufficient for the purpose of committal.
[64] Miller J. relied upon R. v. Haevischer, acknowledging that the appropriate standard for summary dismissal is whether the underlying application is "manifestly frivolous." She noted as well that the Supreme Court found that "[a]pplications that depend on legal propositions that are clearly at odds with settled and unchallenged law are manifestly frivolous", and that "[A]n application may also be manifestly frivolous where the remedy sought could never issue on the facts of the particular application."
[65] Importantly, the A.G. contended that both situations applied to Mr. Bhatia's application for disclosure. They both applied because, as in this case, to succeed in his application, Mr. Bhatia needed to demonstrate that there was an "air of reality" to the foundation of his application.
[66] Miller J. dismissed Mr. Bhatia's application for disclosure on the basis of settled law, and her determination that "the remedy sought could never issue on the facts of the particular application." Thus, Mr. Bhatia's application was "manifestly frivolous" on both prongs of the two tests from Haevischer.
[67] These two cases, and the distinction they draw in the context of summary dismissal applications in extradition matters provide a segue to the difference in roles of a trial judge and an extradition judge, and the different gatekeeper role that the extradition judge plays, compared to a trial judge. Those differences impact directly on this matter and the Applicant's request for reconsideration.
[68] In my Reasons for Decision dismissing the Applications, I emphasized the difference this has on these proceedings. I referred, for example, to Romania v. Iusein, 2016 ONSC 6758, where the court speaks to the different role of the extradition judge on a motion for disclosure like this, as compared to the role of a trial judge as it relates to whether matters have an "air of reality" to them. A judge at a trial must be diligent to ensure that only those defences that have a realistic possibility of success are put to the jury. He or she does not weigh evidence because in a trial, that fact-finding function belongs to the jury alone.
[69] In contrast, an extradition judge must apply scrutiny to prevent an applicant from making unproductive inquiries to police or departments of government which amount to wasteful fishing expeditions, where there is no evidential basis to make the inquiry other than on someone's untested say-so. R. v. Kwok and LaRose direct that such inquiries should only be permitted where they satisfy the "air of reality" requirement, that is, some realistic possibility that the allegations can be substantiated if the orders requested are made. The gatekeeper function calls upon me to guard against speculative requests for disclosure based upon the possibility that a violation has occurred. The "air of reality" test can only be met by some evidence, and not merely speculation, that provides some cogent evidential support for the alleged violation.
[70] As I stated at para. 71 of my Reasons, this is grounded in the need for the court to guard against fishing expeditions, as Doherty J.A. explained at para. 74 of LaRose: Fishing expeditions are not tolerated in any judicial proceeding, particularly one which is intended to provide a simple and expeditious means of responding to Canada's international obligations.
[71] I relied upon that gatekeeper role in denying either extraordinary disclosure or cross-examination of Officer Durkin (at paras. 112 and 113), and in determining at para. 184 that there was no cogent foundation to permit cross-examination of the police officers.
Discussion, analysis, and conclusions
[72] Defence counsel took the position that finality in an extradition process comes only at the end of a committal hearing depending on the result. He says there were two further issues to be argued here, but only at later times, notwithstanding that the entirety of the application was before me on the first hearing date based upon the record filed. Regardless of any indicia on the face of the materials filed that counsel had seemingly agreed to argue on two separate days, it was all in the materials in front of me.
[73] Nevertheless, defence counsel remained insistent that the fact that he and counsel for the Attorney originally scheduled two separate hearings on two separate dates, also bound the court. He said it precluded me from considering the matter as a whole.
[74] Defence counsel's position, at its simplest, is that because he was only prepared to argue the disclosure issue that day, then the court also was limited to rendering a decision only on that issue. Regardless of what I decided on disclosure and despite what the record shows, he claims that he did not have an opportunity to make oral submissions on the two other points at the first hearing.
[75] I told counsel on May 24 that in my view it was not open to me to reconsider the decisions I reached. If a reconsideration were permitted, it would have to be before another justice of this court. Defence counsel submitted, however, that despite his extensive materials filed, he had "not been heard", and had not made oral submissions on those other two matters. That is why he says the other two questions require another hearing by another judge.
[76] While his submissions may not have been as fulsome as they might have been in chief, rather than in reply, in my view the record shows that the claim that defence counsel had "not been heard" on the other matters, respectfully, is simply not correct. Defence counsel's submissions in reply at the end the day on March 16, were permitted to extend well beyond the normal time or breadth usually allowed for reply. The record shows that he did make reply submissions. They occupy 21 pages of the 125-page transcript. Despite his protest at page 105 that he would not deal with issues pertaining to stay, he did address that issue and he did respond to the A.G.'s submissions, not only on the abuse of process case law but also on the question of nexus.
[77] Amongst other things, defence counsel acknowledged that I did need to make limited determinations of credibility in applying the LaRose tests. He also spoke to the decisions in Tollman, responding to the A.G.'s submissions, in United States v. Jghedoise, 2019 ONCA 937 involving the illegal search of a phone, and in United States v. Meng, 2019 BCSC 2317, where Holmes A.C.J., the same jurist who issued the arrest warrant in this case, discusses the issue of disclosure and acknowledges its availability. I agree with defence counsel's reference to para. 37 of Holmes A.C.J.'s reasons in this one of the numerous Meng decisions: The person sought may nonetheless be entitled to additional disclosure relating to a Charter issue they intend to raise in the extradition proceedings. This additional body of disclosure will be available only if the determination of the Charter issue is within the circumscribed authority of the extradition judge and the issue has an air of reality in the sense I will outline below. (emphasis added) The point, however, is that that any Charter issue raised in an extradition proceeding can only be resolved and must remain within the judge's limited powers in extradition matters, and the alleged Charter offending conduct must have an air of reality to it as prescribed by LaRose.
[78] Mr. Adler also referred to the decision of my colleague B. O'Marra J. in United States v. Vikharev, [2022] ONSC 2023, but he did not mention the subsequent decision of R.F. Goldstein J. dismissing Mr. Vikharev's application to stay the extradition proceedings against him based upon alleged abuse of process: United States v. Vikharev, 2022 ONSC 5048.
[79] In the earlier proceeding, B. O'Marra J. was satisfied that there should be an order for further disclosure to look into whether the information sworn to obtain a provisional warrant for his arrest ("PAW") was tainted omissions of important information to Schreck J., which might have caused him to deny the PAW. B. O'Marra J. was content to make that order based on the LaRose criteria, in the sense that he found there was at least an air of reality to the allegations of abuse made by Mr. Vikharev.
[80] However, when the matter later came before R.F. Goldstein J., he dismissed Mr. Vikharev's claim of abuse of process. He acknowledged that there were omissions in the affidavit, but he found that they were not material. He specifically found that B. O'Marra J.'s granting of a disclosure order did not preclude him from deciding the issue as he did based upon a more complete and fulsome record. Moreover, Goldstein J. concluded that even if he had found the omissions to be material, he would still have concluded that the remedy sought was unreachable because he found that the actions of the Canadian authorities did not rise to an abuse of process.
[81] I note in passing that the complaint of misleading disclosure relating to flight risk in Vikharev was also the principal ground of challenge by Ms. Elofer of the information provided by Acting Sargeant Durkin to Holmes A.C.J. in this case. However, unlike B. O'Marra J., I was not satisfied in this case that the allegations made relative to the issuance of the arrest warrant had an air of reality to them, and that is why I dismissed Ms. Elofer's disclosure request.
[82] For all these reasons and looking at defence counsel's submissions in reply as a whole, I am unable to agree with defence counsel that he has "not been heard".
[83] Counsel for the Attorney General takes the position that the circumstances in this case do not justify reconsideration by any judge. She agrees that if I were to decide that the matter itself had not been heard on the merits, that is, the request for leave to cross-examine and the viability of the application for a stay of these entire proceedings, then the remedy would be for the matter to go in front of another judge for consideration. She takes the firm position, however, that those are not the circumstances present here, because she argues the matter has been heard on its merits and she relies upon the decision in R. v. R.V. in support of that claim.
[84] As discussed above, the Court of Appeal in R.V. talks about circumstances that would justify reconsideration. They include a material change in circumstances, where the interests of justice require reconsideration and other circumstances where reconsideration would be appropriate, for example, in circumstances where a counsel misunderstood the scope of an admission, or a judge discovered that his or her decision was made in error. In this case, the Applicant has not pointed to any material change in circumstances, and I am at a loss to see anything before me other than the same argument and the same evidence.
[85] One potential circumstance that would justify reconsideration would be if I were to determine that I had made an error in reaching the decision that I did. Defence counsel took that position and asserted that I made an error by going beyond what he claims was in issue that day, because in his submission, the only issue that it was open to me to rule on that day was the application for extraordinary disclosure. He says I ought not to have gone beyond that, but that since I did, the decision can be re-opened.
[86] The Attorney General concedes that if I was in error, that would be a circumstance where the interests of justice would call for reconsideration. However, again, the Attorney General rejects the position that my decision was in error. Counsel contends that it was clear from the Notice of Applications, embracing not only disclosure, but also leave to cross-examine, the remedy sought of a stay of proceedings, and the factums presented to the Court, that regardless of the defence position that only distinct matters within watertight compartments could be considered on two different dates, the Attorney General was plainly responding to the entirety of the application before the Court, with all its constituent elements.
[87] The Attorney General did respond in his written and oral submissions to the position that was advanced by the Applicant. However, it was also plain to me on my analysis following the hearing, that there was no new or different ground claimed for the request to be granted leave to cross-examine the police officers. The argument appeared to be the same argument as on the disclosure application, although there was a suggestion that perhaps there would be something else, some new evidence, if the order permitting extraordinary disclosure was granted. In my view, Ms. Elofer's Notice of Application makes it clear at section C3 at pages 160 and 161 that it is the same argument.
[88] The Attorney General's position on this request for reconsideration focused upon two points: (i) that this extradition proceeding is not a trial and (ii) that the circumstances do not justify reconsideration by me or any other judge.
[89] In the May 24 submissions, Ms. Rice referred me to pages 59-60 of the transcript of the March 16 hearing. She explained there, on that original hearing date, why it was that all the issues were on the table and that I must consider them. This is now the foundation for her position on these submissions that the circumstances present here do not justify reconsideration.
[90] The core of that position related to the application for a stay, and the requirements of the first part of the LaRose test that the allegations must be capable of supporting the remedy given the obvious fact that the remedy that is being sought by the Applicant is the stay of proceedings. As such, in the A.G.'s submission, it was necessary to deal with that reality check on the original hearing date for the application. She also emphasized that the other foundational issue was whether the required nexus was present. If there was no nexus established between the allegations and the committal proceeding, then there could be no foundation for any further hearings in the matter, apart from the committal hearing itself. Put differently, absent a nexus, the claims have no merit in enabling the remedy sought to be achieved. The A.G. argued that was a fundamental problem that the defence failed to address.
[91] I agree with the Attorney General that the Applicant failed to give an offer of meaningful proof, and without an offer of proof, the request for disclosure must be denied. The caselaw is clear that the person sought cannot say to the court that if only it will grant the orders sought for disclosure or leave to cross-examine, then the person sought will perhaps be able to provide an offer of proof. The jurisprudence confirms that is a waste of court resources that must not be allowed.
[92] In summary, the Attorney General asserted that (i) there is nothing that has changed here that would entitle the Applicant to a reconsideration, (ii) that there was no prejudice, (iii) that the Attorney General set out its position clearly, and (iv) that the arguments simply do not have merit. She concluded by reminding me that I serve a gate keeping function, and that function is to hold at bay arguments that just do not a cogent reason to be heard in a courtroom.
[93] Respectfully, I do not accept the Applicant's position that neither the issue of cross-examination of the police officers or the viability of the abuse of process claim and remedy that was sought were in play at the March 16 hearing, as well as disclosure, or that there is anything left to litigate on that question.
[94] I concluded that there was no air of reality to Ms. Elofer's application for extraordinary disclosure, either with respect to the obtaining of the warrant, or in respect of her claims that her Charter rights were breached when she was arrested. Having reached that conclusion, as stated at para. 154 of my Reasons, I found that there was no merit to the Applicant's further extraordinary request to cross-examine all the police officers.
[95] In my view, that leaves no basis to conduct a second or further hearing on that request for cross-examination, because as the reasons show, (i) I have already specifically found on the record and evidence that was before me that the request to cross-examine the officers cannot and does not meet the required threshold, and (ii) I have dismissed the application in its entirety.
[96] It is plain from my reasons, not only that Ms. Elofer's claim of abuse of process has been dismissed, but also that I made extensive findings of fact and law in support of that conclusion. It was within my jurisdiction to make those findings and to dismiss the matter in its entirety without wasting court resources on further steps that could not meet the LaRose test because they had no air of reality to support them.
[97] It should be emphasized, that it was, is, and will always remain within the jurisdiction of the court to regulate its own process and to ensure that court resources are not wasted. I found that the Applicant was unsuccessful in establishing an air of reality to either of the two claimed foundational elements for the remedy sought. This left the inevitable conclusion, detailed extensively in my reasons, that there was no merit to the Applicants claim of abuse of process, and consequently, there was no merit to her claim that she is entitled to the extraordinary remedy of a stay of proceedings.
[98] It was clear from the record and the contents of the Applicant's and Respondent's factums, that the fundamental question in this case that informed the subsidiary procedural requests was always whether there was an air of reality to the abuse of process claim. That will typically be the central issue in cases like this that will determine whether preliminary relief should be granted. The applications for disclosure and cross-examination can only be looked at through that lens.
[99] While I may have the discretionary power to reopen the matter and ask another judge to conduct further hearings for leave to cross-examine and for a stay based upon abuse of process, without deciding the point in this extradition context, I decline to do so and reject the Applicant's position that the matter has not been heard as fully as required.
[100] I reach that conclusion because the authorities are clear to me that in the facts and circumstances of this extradition proceeding, even if I have that discretionary power, this is not a case that calls for it to be exercised. I am unable to reach any other conclusion than that the matter has been decided in its entirety.
[101] It follows that if Ms. Elofer seeks a remedy, and if she is committed for extradition at the next phase of this extradition proceeding, it will lie at the Ministerial level or the Court of Appeal, as provided for in the legislation.
Released: June 13, 2023
DATE: 20230613 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Requesting State/Respondent
- and-
SABRINA ELOFER aka SABRINA SARA; MILA MORALES Person Sought for Extradition/Applicant
REASONS FOR DECISION REQUEST FOR RECONSIDERATION
Michael G. Quigley J.
Released: June 13, 2023