Court File and Parties

Court File No.: CR-24-10000283-0000 Date: 2024-11-12 Superior Court of Justice – Ontario

Re: His Majesty the King, (Respondent) And: Stephane Gagnon, (Applicant Defendant)

Before: S.F. Dunphy J.

Counsel: S. Foda, for the Applicant R. Young, A. Holmes & J.P. D’Angelo, for the Crown Respondent

Heard at Toronto: September 16-24, 2024

Reasons for Decision – Abuse of Process and s. 11(b)

[1] Mr. Gagnon has brought two applications before me, both of which seek as their remedy a stay of proceedings pursuant to s. 24(1) of the Charter of Rights and Freedoms. The first is an application alleging a breach of the defendant’s right to trial within a reasonable time contrary to s. 11(b) of the Charter. The second is an application alleging an abuse of process arising from (i) the circumstances of his return to Canada and arrest in what is alleged was a “disguised extradition” from Indonesia to Canada contrary to the common law or s. 7 of the Charter; or (ii) from alleged misrepresentations to the court that are said to have resulted in depriving him of his right to reasonable bail pursuant to s. 11(e) of the Charter. The two applications are independent but share many common evidentiary points and were heard in a single, combined hearing.

[2] Mr. Gagnon left Canada knowing of the potential for a criminal investigation into his business dealings, which investigation began shortly after his departure and resulted in the present charges. He brought his family with him, settling in a country with whom Canada has no extradition treaty. He learned of the present charges almost as soon as the Information was sworn. He took no steps to return to Canada on learning of the charges. In such circumstances, the characterization of the resulting delay as Defence Delay is plainly required by binding precedent and common sense. The s. 11(b) Charter application has no merit and must be dismissed.

[3] I also find that there was no “disguised extradition” from Indonesia. Indonesia law provided a lawful means to deport someone who was seeking to avoid prosecution. Canada provided logistical support to Indonesia in support of a Indonesian sovereign and independent decision to locate and then deport a fugitive from Canadian justice using its own legal procedures. That action cannot be characterized in any way as an abuse of process still less a clear case requiring the drastic remedy of a stay of proceedings. Finally, I find that the strained interpretation that the applicant seeks to place on the representations made by the Assistant Crown Attorney at his original bail hearing are just that: strained. There was neither misrepresentation in fact nor intention to mislead. The abuse of process application is also without merit.

[4] The applications must both accordingly be dismissed. My more detailed reasons follow.

Procedural Background and Factual Findings

[5] Mr. Gagnon is charged with fraud over $5,000 (s. 380(1)(a) Criminal Code) and use of a forged document (s. 368(1) of the Criminal Code). His trial is scheduled for April 28, 2025. It is alleged that Mr. Gagnon defrauded 335 people of over $20 million of which only $9 million was returned. Viva voce evidence pertaining to both applications was heard over seven days followed by oral argument immediately following the completion of the last witness on the seventh day. Both parties filed written arguments as well.

[6] Before proceeding with a review of the evidence and my findings of fact in relation to it, some general comments about the evidence and my approach to it are in order.

[7] There was a very considerable volume of hearsay evidence on these applications. In a perfect world, such evidence should be considered and either admitted or rejected on an item-by-item basis. I found that proceeding in that fashion would have unnecessarily protracted the hearing of these applications and placed the trial date at considerable risk. A case-by-case review of each document in the mass of documents attached, for example, to the affidavits of the applicant’s law student, would have consumed all or substantially all of the time set aside for the hearing and it would have been all but impossible to reschedule the hearing on the merits prior to the scheduled trial date.

[8] As case management judge, I ordered the parties to exchange “will say” statements of expected witnesses at the evidentiary hearing of these applications and encouraged the parties as far as possible to file affidavits of an intended witness’ evidence in chief thereby enabling the parties to proceed directly to cross-examination after a summary in chief examination following the adoption of those affidavits by the witness in question. Both parties filed affidavits from most of the witnesses they called at the hearing each of whom adopted their respective affidavits as their evidence occasionally subject to minor corrections identified at the outset. This method of proceeding enabled the hearing to be completed in the time allotted (which had already been extended by two days) but left many admissibility issues to be addressed in final argument.

[9] As mentioned, the applicant filed affidavits from an articling student attaching a large volume of documents, primarily sourced from Crown disclosure but also including other documents from various sources (including the defendant who provided no direct evidence of his own) that the applicant sought to rely upon. Many of these documents contained hearsay statements of non-witnesses. Given the hybrid nature of the hearing and in the interest of efficiency, I allowed the parties to state their objections to various items of evidence for the record but reserved on such objections until after the evidence had been received.

[10] The most significant point of disagreement between the parties on admissibility of evidence was in relation to hearsay. When the dust settled at the end of the hearing and after hearing the parties’ arguments, I found that no novel application of the exceptions to the hearsay rule were required and the separation of the evidentiary wheat from the chaff presented no difficulties. A very large volume of the paper evidence consisted of hearsay evidence of little to no evidentiary value.

[11] One category of hearsay that arose frequently was out of court statements of non-party witnesses – primarily statements of various officials in Indonesia whether reported by the person who heard them or, in some cases, as reported in newspaper articles. The law on the admissibility of such statements is straightforward. Such evidence cannot be relied upon to establish the truth of the matter reported but may only be considered as evidence of why the person through whom the statement was introduced into evidence did or not do a thing after learning of the hearsay statement (where the doing or not doing of the thing is itself relevant). The evidence in relation to media accounts of Mr. Gagnon’s deportation fits into that category and is relied upon for this purpose and this purpose only. The actions taken as a result of the media accounts include inquiries made of Indonesian government officials to confirm that there was no misapprehension of the nature of the proceedings and that Canada’s consistently expressed position that it would not seek extradition was understood.

[12] The second category of hearsay that arose was evidence of statements attributed by certain witnesses to the accused applicant Mr. Gagnon or documents sourced from him. Mr. Gagnon bears the onus on this application (subject of course to the shifting onus within a s. 11(b) application under R. v. Jordan, 2016 SCC 27 if the 30-month threshold is exceeded). He did not testify on this application, nor did he swear an affidavit. It was Mr. Gagnon’s choice whether to challenge or confirm the accuracy of statements or documents attributed to him with his own first-hand evidence. He chose not to do so. The use I may make of such evidence is governed by well-established principles that I see no basis to depart from.

[13] Where statements attributed to (or documents sourced from) a party are concerned, it makes a difference who is eliciting the evidence and for what purpose.

[14] Where the statement attributed to him is relied upon by Mr. Gagnon in support of his own application, hearsay evidence of such a statement is clearly inadmissible to establish the truth of the statement made and such evidence can be afforded no weight. Such statements may have limited evidentiary weight in terms of explaining why the witness did or did not do something in consequence of having heard it. However, a party adverse in interest - in this case the Crown – may rely upon such statements for the truth of their content to prove an adverse fact in issue.

[15] Given the large volume of documentary and viva voce evidence presented on this application, it is neither practical nor necessary to produce an exhaustive catalogue of all evidence reviewed or considered on any given point. This issue was of primary importance in relation to Mr. Gagnon’s state of mind in leaving Canada – a relevant but not decisive fact. I have ignored or attached no weight to inadmissible hearsay declarations that found its way into materials filed by both sides and so advised them during oral argument.

[16] I make the following findings of fact common to both applications:

a. Mr. Gagnon left Canada in September 2019 and did not return to Canada until deported from Indonesia by Indonesian authorities in June 2023 in circumstances which form the basis of the present application.

b. A material if not decisive factor in Mr. Gagnon’s decision to leave Canada was the intent of placing himself beyond the reach of Canadian justice arising from apprehended criminal investigations arising from his business dealings in Canada. A partial list of some of the evidence leading to this conclusion includes:

i. He made arrangements for his then-wife Ms. Janette Layus to move herself and their children to the Philippines (where Ms. Layus had family) while he explored various destinations in Asia. He told Ms. Layus that he did not want to stay in the Philippines because that country has an extradition treaty with Canada. He also told Ms. Layus that he feared arrest over his RRSP business and was looking for a place in Asia to settle in that did not have an extradition treaty with Canada.

ii. Ms. Layus’ credibility in reporting these statements of Mr. Gagnon was challenged. It was alleged she had lied under oath in her police statement when stating that her separation and divorce had not been finalized at the time of her statement. I am not satisfied that she deliberately lied under oath as alleged. The uncontradicted evidence before me was that she never saw the Indonesian court documents by which she was allegedly divorced at the time and the legality of that divorce or the ancillary orders made by the Indonesian court was reasonably doubted by her then and now. The validity and status of the Indonesian family law proceedings is a collateral issue here and is not for me to determine. Her statements to police on the subject may have been incomplete, but I do not conclude that they were deliberately deceptive. Ms. Layus’ potential animus against her estranged spouse and the caution her evidence warrants in consequence was plain and obvious then as now. Aware of the potential for animus on her part, I found her evidence regarding the reason for Mr. Gagnon’s departure from Canada to be credible. Her evidence was also consistent with other evidence – in particular with (i) Mr. Gagnon having brought his children to join him in Asia as soon as a short leisure trip with his brother and friends was over; (ii) the evidence of the OSC investigator Mr. Radu of the OSC having received investor complaints in October 2019 which led to the opening of the investigation that ultimately led to the charges filed in October 2021 coupled with the strong probability that some or all of the complaining investors would have raised concerns with Mr. Gagnon or his company some time prior to initiating formal complaints to the OSC; (iii) the lack of any contradictory evidence from Mr. Gagnon about his intentions when leaving Canada; and (iv) more generally, the actions of Mr. Gagnon viewed as a whole, are quite consistent with someone the someone who decided to leave the jurisdiction before investor complaints resulted in legal actions or peril.

c. The OSC charged Mr. Gagnon with the two crimes that are pending before this court (fraud and use of forged document) in an Information sworn on October 13, 2021. The OSC investigation leading to these charges was triggered by investor complaints received in early October 2019. The OSC Senior Investigator assigned to the investigation was by Mr. Radu, a special constable appointed under the Police Services Act and a former police officer with the RCMP (Mr. Radu has since retired).

d. Mr. Gagnon was aware of the existence of the OSC investigation long before formal charges were laid. He had lawyers contact the OSC on his behalf in February 2021 while the investigation was still in its early stages. Mr. Gagnon’s lawyers were advised of the charges on the day the Information was sworn on October 13, 2021 and the charges themselves were the object of a press release which included particulars of the allegations. Mr. Gagnon was aware of the charges being laid against him either the same day or within a very small number of days following the OSC press release.

e. By October 2021 when charges were laid, there were grounds for investigators reasonably to infer that Mr. Gagnon had left Canada indefinitely, and that he was living somewhere in Asia, likely in Bali, Indonesia.

f. Mr. Gagnon arrived in Bali, Indonesia from the Philippines with Ms. Layus and their children in March 2020 in the very early days of the pandemic. He enrolled his children in a local international school. Between September 2019 and the family’s arrival in Bali in March 2020, Mr. Gagnon travelled widely in the region with passport entries from China, Thailand and Viet Nam among others. He continued to make occasional trips outside Indonesia after bringing his family there in March 2020 but prior to the Information in this case being sworn. There are no entries showing in his passport for travel thereafter in evidence.

g. Mr. Gagnon’s relationship with Ms. Layus had been troubled for some time prior to his departure from Canada. They separated in or about July 2020 and have remained separated since that time. Mr. Gagnon procured a divorce in Indonesia in September 2021 after Ms. Layus’ Indonesian visa had expired and she had left the country in December 2020 or shortly thereafter. She returned to visit the children on one occasion thereafter in early 2022 before Mr. Gagnon was deported in June 2023.

h. The validity of the divorce procured by Mr. Gagnon is not before me to decide. I find only that Ms. Layus’ uncontradicted evidence is that she did not receive the documents and was not aware of the proceeding before the orders were made and challenges its validity.

i. Mr. Gagnon applied for an investor visa in Indonesia in November 2020 and received a two-year investor visa shortly thereafter. He applied for and received a two-year renewal of this visa in September 2022. He had several addresses in Bali between 2020 and 2023 at least the most recent of which had not been notified to Indonesian immigration authorities as required by terms of his visa.

j. The first Indonesian visa was issued prior to the swearing of the Information in the present case. The second visa was issued shortly after Canadian authorities first contacted Indonesian authorities about Mr. Gagnon but there is no evidence that the authorities who processed the visa application in September 2022 were aware of the initial contacts between Canadian and Indonesian authorities regarding Mr. Gagnon in August 2022.

k. Soon after the OSC published the charges including a summary of the allegations against Mr. Gagnon in October 2021, the RCMP applied to the RCMP Interpol desk for a “Red Diffusion” notice and then a “Red Notice”. In July and early August 2022 respectively, the RCMP Interpol office in Ottawa published the Red Diffusion Notice and Red Notice on the Interpol system. Both documents contained a photograph of Mr. Gagnon, listed the charges filed against him and contained a summary of the particulars of the allegations underlying the charges. A Canada-wide warrant for the arrest of Mr. Gagnon was also obtained.

l. Red Notices are normally published on-line and available to anyone searching the public database in addition to being available to Interpol member police forces internationally through the Interpol database. The posting country has the option of restricting the initial diffusion of these notices. Canada initially chose to do so with the result that neither notice was distributed through the Interpol system to authorities in Indonesia nor were they immediately available on-line. Nevertheless, the fact of the swearing of the Information and the outline of the charges was publicly disclosed by the OSC even if the RCMP Red Notice containing substantially similar information was not.

m. The RCMP liaison officer at the Jakarta embassy shared a copy of the Red Notice and the Red Diffusion Notice with his Indonesian police counterparts in August 2022 in connection with an information request received. These same documents and the Canada-wide arrest warrant were shared again with different Indonesian officials who requested them in April and May 2023 in connection with the potential deportation proceedings under discussion. I find that the sharing of these documents – created in Canada by Canadian police officers from information in their own files – was neither unlawful nor unusual in any way. Police to police information exchanges in criminal investigations are routine, unexceptional and not the object of data protection rules of Interpol. The mere publication on the Interpol system of a document did not preclude a member police force from using that document as it chose where doing so breached no Canadian law.

n. As it turned out, clerical errors had been made in preparing the Red Notice the origin of which are immaterial. Both documents as originally issued contained an incorrect passport number for Mr. Gagnon and an incorrect set of fingerprints. Apart from causing periodic confusion with Indonesian authorities as to whether the Stephane Gagnon located by them in Bali was the same man wanted by Canada in the weeks leading up to Mr. Gagnon’s deportation, nothing turns on those errors which were corrected shortly before Mr. Gagnon was returned to Canada.

o. The Red Notice in this case contained the following disclaimer prominently displayed: “Canada will not be in a position to present an extradition request to any country with whom it does not have a bilateral extradition treaty or arrangement. Where a subject is found in a country with whom Canada does not have a bilateral extradition treaty or arrangement, this Red Notice should not be treated as a request for provisional arrest of the subject”. There is no ambiguity in this disclaimer and all communications from Canadian officials to Indonesian officials were scrupulously consistent with this disclaimer up until Mr. Gagnon was placed on an airplane bound for Australia and then Canada.

p. Indonesia is a country with whom Canada has no extradition treaty. While it is possible to seek extradition from a non-treaty country on an ad hoc basis, this has only been done by Canada in a small number of cases involving a narrow category of serious crimes not similar to the present case. The caveat on the Red Notice quoted above accurately reflects Canada’s position regarding extradition in the case of a non-treaty country including Indonesia.

q. At no point during the entire span of the discussions between Canadian officials and authorities in Indonesia in 2022 or 2023 did Canada ever undertake to seek extradition of Mr. Gagnon or otherwise indicate that an extradition request would be presented for Mr. Gagnon nor was any such request ever made in fact.

r. It was reasonable to have sought and issued a Red Notice despite Mr. Gagnon’s believed presence in a country without an extradition treaty with Canada because investigators had information that Mr. Gagnon had travelled extensively in the region since his departure from Canada and might do so again at any time. Investigators had a “Pay and Prosecute” letter from the Ontario Ministry of the Attorney General confirming that Ontario would seek extradition of Mr. Gagnon in the event of his apprehension in a country with a bi-lateral treaty.

s. It was also reasonable to share the Red Notice with Indonesian police officials who requested this on two occasions (in August 2022 and May 2023 when the Canada-wide arrest warrant was also requested and shared). Both requests were made by Indonesian officials in the context of information sharing or of the deportation proceedings under consideration by Indonesia and suggested by officials of that country. The provision of such information was entirely consistent with normal police-to-police cooperation.

t. The RCMP had a liaison officer in the Canadian embassy in Jakarta. This officer, Wayne Laviolette, was effectively the sole point of contact between Canadian officials and Indonesian officials regarding the Gagnon matter beginning in late July 2022 until June 2023. Early on in his discussions, his Indonesian police counterpart suggested to him that Indonesia had deported fugitives in the past. Over the following days, Mr. Laviolette made clear that information only was being sought by Canada at that time, reminded him that Canada had no extradition treaty with Indonesia and requested that information inquiries be covert so as not to alert Mr. Gagnon.

u. Over the following weeks, Indonesian immigration officials provided the requested information concerning Mr. Gagnon’s entry and exit activity in July and August of 2021. Indonesian authorities asked whether Canada would pay for a police escort in the event of deportation of Mr. Gagnon from Indonesia and Mr. Laviolette started the process of seeking a response to that Indonesian request.

v. On December 7, 2022, Indonesian police advised Mr. Laviolette that Mr. Gagnon had been located at an address in Bali but that he was travelling under a different passport number than that indicated on the Red Notice.

w. Further meetings took place in early 2023 where, among other things, clarification was again sought as to whether Canada would pay the expenses of a deportation including the costs of a police escort. Throughout these discussions, Mr. Laviolette reminded the Indonesian officials on multiple occasions that Canada would not present an extradition request. The only matter discussed by Mr. Laviolette with Indonesian officials was the prospect of Canadian assistance in relation to a possible deportation process – extradition was never discussed as an option Canada would pursue. In the course of these meetings, he was advised by Indonesian officials that Indonesia could deport fugitives from justice and had done so recently in a case involving an Italian national.

x. At no time did Mr. Laviolette seek to persuade or influence Indonesian officials on the issue of whether to undertake a deportation process involving Mr. Gagnon but he did receive and respond to requests for assistance or information made by them.

y. In April and May 2023 discussions turned to more detailed logistical issues associated with deportation including possible flight routes (there being no direct flights to Canada from Bali). During these discussions, Indonesian officials requested the cancellation of Mr. Gagnon’s Canadian passport. During this time frame, Mr. Laviolette was able to confirm that Canada would cover the costs of Mr. Gagnon’s deportation. Documents including the Red Notice and the underlying arrest warrant were again shared by Mr. Laviolette with Indonesian authorities at their request.

z. On May 12, 2023, Canadian passport officials advised that Mr. Gagnon’s passport had been revoked. As requested, Mr. Gagnon was not immediately informed of this development.

aa. On May 19, 2023 Indonesian immigration authorities detained Mr. Gagnon in Bali. When it appeared from media reports that Mr. Gagnon had been detained for the purpose of extradition, Canada immediately sought clarification because it had not made and would not make such a request.

bb. On June 1, 2023 Mr. Laviolette received a copy of a formal request sent to the Canadian ambassador by the Ministry of Law and Human Rights of Indonesia regarding a pending Request for Deportation of “the Canadian citizen fugitive named Stephane Gagnon” informing that the deportation of Mr. Gagnon would occur on June 4, 2023. In light of his cancelled passport, the letter requested the issuance of a temporary Travel Document for Mr. Gagnon. Canada complied with this request and issued an Emergency Travel Document.

cc. Mr. Gagnon’s deportation did not proceed on June 4 as the Indonesian request letter indicated. Mr. Gagnon engaged a lawyer and publicity was given to allegations of corruption of certain police officers involved in the case. There is a volume of hearsay evidence on the subject of such alleged corruption which is as consistent with Mr. Gagnon having offered bribes to avoid Indonesian action as with such officers having attempted to extort money from him to avoid action. I have no factual foundation permitting me to reach a conclusion in either direction beyond noting that it appeared to the Canadian officials offering logistical support to Indonesian officials that the resulting public controversy played a role in the delay in proceeding with the planned deportation of Mr. Gagnon.

dd. At the end of the day, Indonesian officials made their own decision to deport Mr. Gagnon with knowledge of and having looked into the corruption allegations.

ee. The alleged corruption in the case concerns attempts to prevent the deportation of Mr. Gagnon in or about February 2023 (regardless of who offered or demanded money). Indonesian officials had been considering such a proceeding for more than six months at that point. I find no basis whatever to conclude that any Canadian officials had any knowledge whatsoever of the corruption allegations until after Mr. Gagnon was detained in Indonesia in May 2023. I cannot conclude in any way that the subsequent decision to deport Mr. Gagnon by Indonesian officials was in any way a result of that alleged corruption – to the contrary to the allegations delayed the decision by several days.

ff. While certain internal Indonesian police documents created in connection with the detention and ultimate deportation of Mr. Gagnon make reference to laws regarding extradition and “handing over” of Mr. Gagnon, the official Indonesian request to the Canadian ambassador for a Travel Document for Mr. Gagnon on June 1, 2023 clearly referred to his planned deportation by the Immigration Office and the actual deportation decision of the Immigration Office dated June 8, 2023 is clearly and unambiguously a deportation order finding that Mr. Gagnon was a foreign national who it was determined was “attempting to evade prosecution and the execution of his punishment in his home country”.

gg. There is no basis for me to conclude that Mr. Gagnon’s deportation from Indonesia was unlawful. The deportation order in question is apparently valid and grounded in Indonesian law on its face. While the applicant called an Indonesian law professor who testified that in his view the relevant provisions of the Indonesian Immigration Law (s. 75(3)) applied only to foreign nationals avoiding punishment after conviction of an offence, Prof. Juwana admitted that the words used in the statute might also be translated as applying to someone avoiding “prosecution” and not merely “punishment” even if he did not consider that to be the better view and he was not aware of any court decisions that agreed with his more restricted view of the interpretation of the statute. Under cross examination he also admitted that he had not reviewed the full immigration file, that he could not say what other factors the Immigration officials had relied upon in reaching their decision, that he had not produced the full provisions of the relevant law to this court nor a certified translation thereof, and that he agreed that Indonesia did have a state interest in not wanting to be viewed as a “safe haven for criminals” and that he was not a specialist in immigration law. Prof. Juwana’s opinion is of very limited assistance and certainly provides me with no sufficient foundation to question the validity or lawfulness of decisions taken by a sovereign country on its own soil applying its own laws.

hh. I similarly find no basis whatsoever to conclude that Canadian officials knew or ought to have known that the deportation order of June 8, 2023 by which Mr. Gagnon was deported from Indonesia was invalid or unlawful nor is there any basis for me to so conclude today.

ii. Mr. Gagnon was removed from Indonesia pursuant to the order of June 8, 2023. He was accompanied by Indonesian police to Sydney Australia where, upon arrival the next morning, he was given his Canadian Emergency Travel Document valid only for travel to Canada. Australian border authorities did not permit him to clear immigration at the airport and enter the country but detained him and placed him on an Air Canada flight to Vancouver on June 11, 2023 (Sydney time) and he was arrested upon his arrival in Vancouver later that day (Vancouver time).

jj. There was never any reasonable basis to expect that Mr. Gagnon would return voluntarily at any point prior to his deportation from Indonesia on June 8, 2023 or his arrival in Canada on June 11, 2023.

kk. At no time did Mr. Gagnon take any steps to return to Canada to face these charges or to advise investigators of his actual address in Indonesia. Mr. Gagnon was aware of the charges laid against him within a very short period of time after the Information was sworn in October 2021 and had Canadian lawyers attempting to obtain information about what evidence police had about him.

ll. Requests for disclosure from police made by Mr. Gagnon’s lawyers prior to his return to Canada in June 2023 and subsequent arrest were not responded to. It was reasonable in the circumstances for investigators and police to have shared no non-public information with Mr. Gagnon or his lawyers prior to his return to Canada. The risks of disclosing particulars of how much police had discovered about the details or proceeds of an alleged financial crime (involving more than $10 million in proceeds that had allegedly disappeared) to a fugitive at large and at liberty outside Canada were obvious.

mm. On June 29, 2023, Mr. Gagnon appeared in bail court during which hearing the Assistant Crown Attorney made representations regarding the lack of an extradition mechanism to bring Mr. Gagnon back to Canada form Indonesia and the lack of Canadian officials present on the scene of his deportation which the applicant alleges were misleading and had the effect of depriving him of reasonable bail.

Issues to be Decided

[17] Was the delay between the date the information was sworn (October 13, 2021) and the date Mr. Gagnon returned to Canada and was taken into custody on June 11, 2023 “Defence Delay” within the framework directed by the Supreme Court of Canada for assessing applications under s. 11(b) of the Charter?

[18] Do the circumstances of Mr. Gagnon’s deportation from Indonesia constitute an abuse of process for which warrant the remedy of a stay of proceedings whether pursuant to s. 24(1) of the Charter of Rights and Freedoms or pursuant to common law?

[19] Did statements made by the Assistant Crown Attorney at the applicant’s initial bail hearing mislead the court and, if so, is a stay of proceedings under s. 24(1) of the Charter an appropriate remedy?

Analysis and Discussion of Issues

(a) S. 11(b) Application

[20] I do not find it necessary to examine the steps taken in the proceeding since Mr. Gagnon’s return to Canada on June 11, 2023. The applicant has not alleged any circumstances that might bring into question the application of an 11(b) threshold below the 30-month presumptive threshold directed by the Supreme Court of Canada in R. v. Jordan. Concluding as I have that the time between the swearing of the Information on October 13, 2021 and Mr. Gagnon’s return to Canada on June 11, 2023 is Defence Delay that should be excluded in the Jordan calculation of Net Delay and that the Net Delay calculated on that basis to the anticipated end of trial is well below the 30-month Jordan threshold, there is no need to examine which, if any, time periods after June 11, 2023 might also be excluded from Net Delay since doing so would have no bearing on the outcome of the application.

[21] From the time the Information was sworn on October 13, 2021 (or shortly thereafter) until his return to Canada on June 11, 2023, Mr. Gagnon may fairly be described as a fugitive from justice.

[22] Mr. Gagnon’s lawyers were notified of the charges the same day the Information was sworn. There can be no question that Mr. Gagnon was aware of the charges against him on or about the date of the Information.

[23] Upon learning of the charges, Mr. Gagnon took no steps to surrender himself to authorities. To the contrary, he took steps aimed at frustrating the Canadian investigation. When it appeared that a former domestic employee of his in Indonesia was cooperating with Canadian police, Mr. Gagnon sent another employee of his to track her down and to attempt to persuade her to cease communications with Canadian investigators. Canadian investigators lacked detailed information abut Mr. Gagnon’s location until shortly before the deportation proceedings.

[24] There can be no question that Canadian authorities took all reasonable steps to locate Mr. Gagnon. Indeed, in the Abuse of Process application to be discussed below, the applicant takes the position that the state went beyond merely taking all reasonable steps to bring him to justice in Canada and strayed into the realm of the unreasonable.

[25] The suggestion that a fugitive from justice, knowing of the existence of a warrant for his arrest at all material times, can complain that delay in bringing him to justice from the other end of the earth could be characterized as a violation of his right to trial within a reasonable time is utterly absurd. The case law in this area is quite consistent with common sense and requires no such absurd outcome: R. v. White.

[26] The s. 11(b) application must be dismissed.

(b) Abuse of Process: Misleading Bail Court

[27] On June 29, 2023, a bail hearing was held for Mr. Gagnon. The hearing was a contested one and Mr. Gagnon was represented by counsel. Mr. Gagnon takes issue with two statements made by the Assistant Crown Attorney in the course of that bail hearing which the applicant asserts were intentionally misleading and amounted to a violation of his right to reasonable bail and an abuse of process.

[28] The first disputed representation was as follows:

“And he was - there's no extradition treaty with Indonesia, and I'll get to that later too. And - but he was deported from Indonesia. That's not our process. We didn't seek the extradition because we can't. There's no, there's no mechanism.”

[29] The second disputed representation was this:

“Ultimately, he was deported from Indonesia by Indonesian authorities. No RCMP were there or anything like that. But I understand that when they deported him, they deported him, like, in leg cuffs with Indonesian officials, no Canadian officials.”

[30] In the case of the first statement, the applicant described this as possibly a “negligent characterization of the law” because it is possible under Canadian law to request extradition of Mr. Gagnon and authorities chose not to do so. That statement is theoretically true in a certain light but is quite incomplete and certainly does not rise to the level of misleading the court, let alone knowingly.

[31] The first statement was factually accurate in the context in which it was made. There is in fact no extradition treaty with Indonesia. Mr. Gagnon was deported from Indonesia and the deportation process was in no way a “Canadian process”. The Crown did not seek extradition in this case because they factually could not do so even if it is also factually correct to state that extradition is theoretically possible with or without a treaty.

[32] Under s. 78 of the Extradition Act, SC 1999, c 18 the discretion conferred on the Minister to make a request for extradition to a State is not conditioned upon the existence of a treaty. Canada can request any state to extradite any person for any reason under s. 78 whether or not there is an existing treaty. That does not mean that there is a “mechanism” to do so of the sort referred to by the Crown in the context of the submissions made to the Learned Justice at the bail hearing.

[33] The scheme of the Extradition Act when it comes to outbound requests (i.e. from Canada to another state) requires a “competent authority” – in the context of this case, the Ontario Attorney General whose agents are prosecuting Mr. Gagnon - to make a request of the Minister to extradite a person for prosecution of an offence over which Canada has jurisdiction. The Minister is not obliged to grant a request of the competent authority even if one is made. If the Minister accedes to the demand and makes the request of the foreign state, there is no obligation for the foreign state to which the request is directed even to consider an extradition request absent a treaty or similar arrangement.

[34] An extradition treaty creates or adopts reciprocal rights and obligations between states and thereby establishes a “mechanism” to operate under to process requests in both directions. For its part, Canada communicated to the provincial Crown in this case a standing policy not to make such requests absent a treaty arrangement, a position departed from only on rare occasions and not in circumstances similar to the current case. There is no obligation to make a formal request from the Provincial to the Federal level where the latter’s policy not to act upon the request in the present circumstances had been clearly communicated.

[35] There was nothing misleading in the summary representation made by the Assistant Crown Attorney to the Learned Justice at the bail hearing considered in the context in which it was made it. The statement made was in substance correct even if a hypothetical qualification might have been more correct. Given the communicated policy of the Canadian government, the Crown in this case accurately represented that there was no available mechanism to extradite Mr. Gagnon.

[36] I reach a similar conclusion in relation to the second statement. Mr. Gagnon was in fact deported from Bali, Indonesia by Indonesian authorities after an Indonesian process. No RCMP officials were present at the hearing where the order was made, at the airport when he was put on an airplane bound for Australia nor on the airplane itself.

[37] The statement, viewed in isolation, did not mention the degree of logistical assistance to the deportation provided by Canada. The RCMP had a liaison officer stationed at the embassy in Jakarta. The prospect of deportation was raised by Indonesian authorities with him. He consistently and clearly communicated that Canada would not be making a request for extradition and Canada made no such request. Indonesia communicated its ability and willingness to deport Mr. Gagnon and made specific informational and logistical requests of Canada which Mr. Laviolette relayed faithfully. Canada supplied information and agreed to provide the logistical support requested without ever suggesting that Canada could or would go down the extradition route. The discussions encapsulated in this short paragraph extended over several months from late July 2022 until Mr. Gagnon left Indonesia in June 2023.

[38] While all of the details of that logistical and informational liaison effort of the RCMP liaison officer was not detailed in the statement of the Crown quoted above, the evidence before the Learned Justice clearly demonstrated that Canada had cooperated significantly with Indonesian authorities in the deportation process. Whether that liaison person was a police officer stationed abroad or a career diplomat is utterly irrelevant. The statement was accurate and not misleading viewed in the context in which it was made.

[39] This abuse of process application insofar as it concerns alleged misrepresentations made at the bail hearing has no merit and must be dismissed.

(c) Abuse of Process and “Disguised Extradition”

[40] The core of the applicant’s position is that his deportation from Indonesia was a “disguised extradition” which the applicant contends amounts to an abuse of process that requires the issuance of a stay of proceedings to safeguard the integrity of the Canadian judicial process. The applicant contends that his deportation from Indonesia was a “sham deportation” that was “initiated, facilitated and completed because of the actions of Canadian law enforcement” that circumvented the extradition process of two nations, entailed an unlawful revocation of the applicant’s passport without notice and a violation of the written undertaking to seek extradition contained in the Red Notice.

[41] None of these allegations can withstand scrutiny. I shall review each of the three principal legs of the applicant’s claim in reverse order.

(i) Revocation of Passport

[42] The applicant takes issue with the fact that he was not provided with written notice of the decision to cancel his passport and includes this failure as one of the factors allegedly tainting the deportation procedures that resulted in his return to Canada. I find no merit in this suggestion in fact, and can find no basis to elevate this alleged failing to the level of an abuse of process warranting a stay of proceedings.

[43] At the time Canadian authorities cancelled Mr. Gagnon’s passport, Canada had already clearly communicated to Indonesia that it would not be seeking extradition from Indonesia given the lack of a bi-lateral treaty. Indonesia had provided informational assistance through its immigration officials in locating Mr. Gagnon in Bali and in identifying recent entries and exits from Indonesia. Indonesia had also communicated its potential willingness to expel Mr. Gagnon using immigration procedures available to them which had been used in analogous situations in the past. They indicated that it would be of assistance to them in applying those procedures if Mr. Gagnon’s passport were revoked. The RCMP liaison officer conveyed that request up the chain to the relevant Canadian passport officials.

[44] There can be no doubt that the outstanding Ontario charges faced by Mr. Gagnon were proper grounds for the cancellation of his passport. S. 10(1) of the Canadian Passport Order provides that a passport may be revoked by the Minister on the same grounds for which the issuance of a passport may be denied and s. 9(1) of the same regulation provides that a passport may be denied in the case of a person who stands charged with an indictable offence.

[45] Where a decision to revoke a passport is taken, the Minister is required to “take reasonable measures to provide written notice of the decision to revoke the passport to the person to whom the passport was issued”. In this case, the RCMP requested the cancellation of Mr. Gagnon’s passport without providing written notice to Mr. Gagnon on the basis that the passport was being used to facilitate Mr. Gagnon’s attempts to avoid justice. The decision to defer providing written notice was perfectly reasonable in the circumstances. There were reasonable grounds to conclude that Mr. Gagnon had used his passport to flee Canada to a jurisdiction from which extradition was not possible to avoid prosecution.

[46] The cancellation of the passport was lawful and the decision to defer providing notice thereof was reasonable in the circumstances as contemplated by the regulation.

(ii) Breach of Undertaking in Red Notice

[47] I find no need to consider further the allegation that Canada breached an undertaking in the Red Notice to seek extradition of Mr. Gagnon which somehow confers rights upon him. The Red Notice clearly and unambiguously disclaimed any such undertaking which disclaimer was consistently and clearly communicated to Indonesian authorities throughout. The question of what benefit Mr. Gagnon can seek to claim from a non-existent undertaking does not arise. Once again, there is no basis to characterize this alleged failing as an abuse of process that rises to the level justifying the application of the extreme remedy of a stay of proceedings.

(iii) Disguised Extradition

[48] I have summarized my findings of fact in relation to this subject earlier and, at the risk of oversimplification shall digest those findings still further here:

a. Mr. Gagnon was in fact a fugitive from Canadian justice from the time he learned of the Information sworn on October 13, 2021 until his return to Canada on June 11, 2023.

b. Canada had no extradition treaty with Indonesia and was unambiguously clear and direct at all times with all relevant Indonesian authorities throughout that Canada would not seek extradition of Mr. Gagnon and did not depart from that consistent and clearly communicated position at any time.

c. In the context of supplying routine police-to-police cooperation about the location and movements of a fugitive, Indonesian authorities communicated to Canada that relevant Indonesian immigration law permitted the deportation of Mr. Gagnon from Indonesia, that they had used such a process in analogous situations in the past, and that they were considering employing such a process in the case of Mr. Gagnon. Indonesia eventually did just that.

d. Canada did not request the deportation of Mr. Gagnon and Indonesia’s decision to implement a procedure suggested by it using its own laws was not the product of any pressure applied by Canada. Canada’s role throughout the process was confined to offering logistical support to decisions independently arrived at by Indonesia.

e. The logistical support requested by Indonesia included covering the costs of removing Mr. Gagnon from Indonesia (airline tickets for Mr. Gagnon and the Indonesian police escorts as far as Australia) and the issuance of an emergency travel document.

f. Canada lawfully revoked Mr. Gagnon’s passport and provided him with an emergency travel document that enabled Mr. Gagnon to depart from Australia to Canada but that did not authorize him to pass through border controls in Australia.

g. There is no basis to conclude that the process used by Indonesian authorities to order Mr. Gagnon out of the country was unlawful. Apart from the inherent difficulties of an Ontario court attempting to sit in judgment of the propriety of ex facie lawful actions of a sovereign government acting within its own jurisdiction, the applicant’s own Indonesian law expert conceded that there were multiple lawful means of expelling Mr. Gagnon from Indonesia including “police to police” assistance and that an available interpretation of the relevant provisions of the Indonesian statute permitted deportation of fugitives seeking to avoid trial even if it was one he did not favour. He also agreed that no Indonesian court had ever confirmed his own narrower construction of the statute.

h. Mr. Gagnon had a lawyer in Indonesia and unsuccessfully contested the deportation process.

[49] In my view, the foregoing conclusions stand as an absolute bar to any conclusion that Mr. Gagnon’s rights under s. 7 of the Charter have been breached or that Canada’s actions can be characterized as a common law abuse of this court’s process and at all events the applicant has failed to satisfy the test under R. v. Babos, 2014 SCC 16 for the issuance of a stay of proceedings.

[50] Mr. Gagnon was validly arrested on an existing warrant when he presented himself for entry at Vancouver Airport on June 11, 2023. The applicant conceded that Indonesia was perfectly within its rights to apply its own law to deport him but alleged that virtually any input into Indonesia’s decision-making process by Canada irrevocably taints the result of that process as “disguised extradition” and an abuse of process. Neither common sense nor any of the cited jurisprudence leads to such a conclusion.

[51] The applicant referred to two Ontario cases that refer to the concept of “disguised extradition”: United States of America v. Tollman, 2006 ONSC 31731 and Attorney General (Canada) v. Bartoszewicz, 2012 ONSC 250.

[52] Tollman was a case involving a United States citizen facing charges of tax evasion in the United States but residing in the United Kingdom. With advance co-ordination with US authorities, Mr. Tollman was detained by Canada when passing through Toronto in transit from London bound for Bermuda. There was no Canadian nexus beyond his transitory presence in Canada for the time necessary to board his connecting flight at Toronto airport. Instead, he was held by immigration authorities who commenced proceedings to have him removed under immigration law. The plan hit a snag when Mr. Tollman was ordered released pending the immigration hearing. The order for his release was not immediately complied with and the immigration proceeding was converted overnight to an extradition hearing and Mr. Tollman was ordered detained anew. In passing, it should be noted that nothing prevented the United States from making an extradition request in the first place – Canada has an extradition treaty with the United States and in such cases there is a process that is as well understood as it is quite regularly exercised. Molloy J. found that the United States was bound by treaty with Canada to pursue extradition and the circumstances of his detention disentitled the United States from the relief sought. Canada’s use of immigration law to detain him was found to be unrelated to the purpose of the immigration statute and thus an abuse of process.

[53] Canada has no extradition treaty with Indonesia and there can be no suggestion that there is any legal obligation – by treaty or otherwise – for Canada to seek extradition nor is there any legal requirement for Canada to withhold cooperation with Indonesia in the application of its own immigration laws to a Canadian citizen on its territory in any other manner.

[54] Bartoszewicz was an application for extradition from Canada to Poland that was challenged with allegations of corruption of the requesting state and an allegation that the Polish criminal proceedings were being improperly used to collect a civil debt. As with Tollman, the extradition proceedings had been preceded by deportation proceedings.

[55] Both of these Canadian authorities examined steps taken under Canadian law to remove someone from Canada to another place for prosecution where both the immigration laws and the extradition laws under consideration were Canadian and the intended criminal prosecution was foreign. There is no question that a Canadian court can consider whether the alleged (mis)application of Canadian immigration law undertaken for the purpose of avoiding the provisions of applicable Canadian statutes amounts to an abuse of its own process.

[56] The situation before me is effectively the inverse of Tollman and Bartoszewisz. The jurisdiction of those courts to review the Canadian proceedings in question was undoubted. Neither involved a Canadian citizen or an intended Canadian prosecution. Both cases preceded R. v. Babos and neither entailed a weighing of the Canadian public interest in a decision on the intended prosecution on its merits. They are simply of no assistance to me in deciding this case.

[57] The applicant also referred to the English case of R. v. Horseferry Road Magistrate’s Court Ex parte Bennett, (1994) 98 Cr. App. R. 114 (H.L). The circumstances of that case were also quite different from this and I find it to be of very little practical use.

[58] Mr. Bennett was wanted in England on fraud charges. He was a New Zealand national present in South Africa. There was no applicable extradition treaty but there was a “special procedure” that was potentially applicable under the English statute which differs very considerably from our own statute. Mr. Bennett was first deported by South Africa to his home country (New Zealand where he was also wanted). He got as far as Taipei before he was forcibly detained – allegedly by South African police – who returned him to South Africa against his will. From there he was put on a new flight by South African police this time to London Heathrow. He was transported in handcuffs, ostensibly being deported to New Zealand again although this would have required a transfer of airports across London. He was arrested on arrival at Heathrow. The case came on as a reference to the House of Lords on assumed facts to consider the jurisdictional point of whether the lower court had any authority to inquire into the legality of the means by which he was brought to England.

[59] Among the assumed facts in that case was “that the English police took a deliberate decision not to pursue extradition procedures but to persuade the South African police to arrest and forcibly return the appellant to this country under the pretext of deporting him to New Zealand”.

[60] The assumed facts in ex p. Bennett amounted to an extra-legal rendition of a New Zealand national by South Africa to a country of which he was not a citizen, undertaken at the instance of English police. There was no suggestion that South African police were acting lawfully (a proposition that would be particularly difficult to defend in the case of actions taken by South African police thousands of miles outside their home jurisdiction in Taipei) and the assumed fact was that English police played a directing role in the conduct in question. That is quite the opposite of the facts present here.

[61] Mr. Gagnon was a Canadian national resident in Indonesia deported to Canada under an Indonesian statute in a procedure during which he was represented by counsel. I have found that Canada did no more than offer logistical support to decisions independently taken by Indonesia. There is no evidence that Mr. Gagnon could legally have gone anywhere else in the world but Canada on June 11, 2023, when he was placed on an Australia-bound flight with papers that permitted him to do no more than transit via Sydney airport to Canada. The two cases could not be more dissimilar.

[62] Our Court of Appeal considered ex p. Bennett in R. v. Khadr, 2011 ONCA 358. However, I don’t consider that Khadr provides the applicant with any material support here either even if Mr. Khadr was a Canadian citizen. Like Tollman, Khadr involved an application for extradition on behalf of the United States where it was found that the actions of the applicant United States disentitled it to the relief sought. In Khadr as in Ex p. Bennett there were distinct overtones of the prosecuting state actively assisting in something very much akin to kidnapping. There was evidence that the United States had bribed Pakistan to hand over Mr. Khadr. Khadr is of no assistance to the applicant’s claim (while Khadr was a Canadian, the prosecuting state in that case was the United States).

[63] The premise of the applicant’s case is that any involvement of the Canadian government in immigration proceedings undertaken in a foreign country irrevocably taints that process with illegality under international law regardless of the domestic law of the country in question, a premise that in turn presumes the existence of some sort of quasi-constitutional right to extradition. No such right exists.

[64] Mr. Gagnon was not a refugee and none of the international law principles associated with that status apply here. There is no principle of law obliging any state to afford fugitives in their country with notice and a head start to try to escape justice. There is no right of sanctuary or asylum from common-law crime abroad and every state has the right to expel foreign nationals from their soil in such cases under their own domestic law free from foreign interference. Canada had no obligation to afford Mr. Gagnon with a passport to facilitate his efforts to escape justice. Canada had every right to cancel his passport and to co-operate with Indonesian authorities in the exercise of its own sovereign right to decide which foreign nationals should be permitted to enter or remain on its territory. There are no circumstances present here which could justify abandoning the assumption of regularity that Indonesian legal proceedings undertaken in Indonesia and in areas of unquestioned Indonesian sovereignty are entitled to.

[65] There being no breach of s. 7 of the Charter attaching to the actions of Canadian officials in this matter, I do not find it necessary to follow the applicant’s invitation to overturn the Supreme Court of Canada’s decision in R. v. Hape, 2007 SCC 26 regarding the applicability of the Charter outside of Canada.

[66] The applicant also took the position that “the only remedy historically granted” in the case of “disguised extradition” is a stay of proceedings. In support of this proposition, the cases of Tollman, Bartoszewicz and Ex p. Bennett referred to above were again cited.

[67] In fact, the remedy of a stay of proceedings to an otherwise valid, pending Canadian criminal proceeding is not a remedy of first resort under Canadian law. It is an extreme remedy to be applied in only the clearest of cases where the fairness of the trial process itself is undermined or where the continuation of the process risks undermining the integrity of the judicial process. The test prescribed by the Supreme Court in Babos requires proof of: (1) prejudice to the right to a fair trial or to the integrity of the justice system that will be impacted by the continuation of the trial or its outcome, (2) the lack of an alternative remedy, and (3) a balancing of the considerations favouring a stay against society’s interest in having a final decision on the merits of criminal charges.

[68] My conclusions above are sufficient to dispose of the first part of the Babos test. Mr. Gagnon’s right to a fair trial has not been impacted at all and the integrity of the Canadian judicial system is in no way compromised by the manner of his re-patriation to Canada. Finally, the interest of Canada in prosecuting Mr. Gagnon is a strong one. A permanent stay of proceeding of the charges here would amount to the functional equivalent of a pardon, putting Mr. Gagnon in a better position than where he was when he was deported. At that time, he was without a valid passport and facing charges in Canada, a country with an extensive network of extradition treaties. It should be noted that the stay of proceedings issued in Tollman or Bartoszewicz had no impact on the pending charges in the United States or Poland as the case may be.

[69] I cannot concur that the Babos test can be deemed “automatically” satisfied by the mere incantation of the phrase “disguised extradition. In my view, the application of the Babos analysis to this application is obligatory in the circumstances of this case and precludes the application of a stay of proceedings in this case.

[70] In conclusion, I cannot conclude that the Canadian judicial system has been abused by what occurred prior to Mr. Gagnon’s return to Canada. Mr. Gagnon chose to flee to Indonesia. His assumption that Canada could not extradite him from Indonesia was indeed well-founded. His assumption that Indonesia, applying its own law, would not expel an investor-class resident whom it concluded was an undesirable fugitive was not. It is not an abuse of process to provide logistical assistance to repatriate a Canadian citizen who is a fugitive from justice being deported by a country in the application of its own laws. There is no principle of fundamental justice that prescribes extradition as the sole and exclusive means by which a fugitive citizen of Canada can be returned to Canada.

Disposition

[71] For the foregoing reasons, I am dismissing both applications in their entirety. Excluding properly counted Defence Delay, Mr. Gagnon’s trial is scheduled to be completed in less than thirty months. There were no material misrepresentations made to the court in the course of his bail hearing and the process by which he was deported from Indonesia and returned to Canada cannot be characterized as a breach of his s. 7 Charter rights or as a common law abuse of process.

[72] Orders accordingly.

S.F. Dunphy J. Date: November 12, 2024