Present: Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Extradition ‑‑ Similar offences committed in Canada and U.S. ‑‑ U.S. minimum sentence significantly more severe than Canadian sentence ‑‑ Crown allegedly indicated prior to trial on indictment that extradition hearing would proceed if no guilty plea ‑‑ Whether Crown's conduct so egregious that extradition should be stayed.
Appellant was charged in Canada with possession of cocaine for the purpose of trafficking. Later, he was indicted in the United States with three similar charges, each carrying a ten‑year minimum sentence. Affidavits of the appellant's legal advisers were filed at the extradition hearing. One alleged that the Crown prosecutor had indicated, just prior to the commencement of the trial on the indictment, that the proposed extradition hearing would proceed if the appellant did not plead guilty. At issue is whether the Crown's conduct was so egregious that the extradition of the appellant should be stayed.
Held: The appeal should be dismissed.
The facts do not disclose any lack of good faith. The affidavits disclosed no misconduct, let alone egregious misconduct, on the part of the Crown. At most, they indicated that an offer was made that the extradition proceedings would be stayed in exchange for a plea of guilty to the Canadian indictment. This was no more than an offer that may have been made with the best of intentions based upon the longer sentence the appellant might face in the United States. There was no pressure exerted upon the appellant to plead guilty. In addition, the Crown's decision to stay the prosecution on the morning it was to commence was not improper. The appellant would not have been surprised by the extradition proceedings.
An appellate court is empowered to enquire into the exercise of prosecutional discretion only in the clearest of cases of abuse of the court’s process. This was certainly not “the clearest of cases”.
Cases Cited
Referred to: United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R. v. Power, [1994] 1 S.C.R. 601.
APPEAL from a judgment of the Ontario Court of Appeal (1995), 96 C.C.C. (3d) 568, 77 O.A.C. 313, 26 C.R.R. (2d) 310, dismissing an appeal from committal for extradition by Hayes J. and dismissing an application for judicial review of the decision of the Minister of Justice to surrender for extradition. Appeal dismissed.
Edward L. Greenspan, Q.C., and Alison Wheeler, for the appellant.
Robert Hubbard and William H. Corbett, Q.C., for the respondents.
The judgment of the Court was delivered by
1 Cory J. -- On this appeal, the sole issue is whether the conduct of the Crown is so egregious that the extradition of the appellant should be stayed. The issue raised is purely factual in nature. For its resolution it is necessary to set out a brief summary of the relevant events and proceedings.
2 On November 8, 1991, the appellant, a Canadian citizen residing in Toronto, was charged in Canada with a single count of possession of cocaine for the purpose of trafficking. This charge resulted from the discovery, during a search conducted by the Toronto police, of eight kilos of cocaine in a Toronto warehouse, alleged to have been owned and operated by the appellant.
3 It was not until August 10, 1993, that a grand jury in the Western District of New York returned an indictment charging the appellant with the following offences, each carrying a ten‑year minimum sentence:
(1) conspiracy to possess with intent to distribute five kilos or more of cocaine from September 1991 to February 1992;
(2) possession with intent to distribute five kilos or more of cocaine on or about September 16 and 17, 1991;
(3) possession with intent to ship and distribute five kilos or more of cocaine on or about October 29 and 30, 1991.
On these American charges, the appellant was accused along with Christopher Breen, who was alleged to have supplied the cocaine to another co-conspirator, David Dillon, who in turn was said to have delivered it to the appellant in Buffalo, New York. Dillon is an American citizen. Breen would appear to be at least an American resident. These are discrete and separate charges from that referred to in the Canadian indictment.
4 According to the evidence on the extradition hearing, the appellant travelled to Buffalo, met with and received packages of cocaine from Dillon, and returned to Canada with the cocaine on two occasions: September 17, 1991 and October 30, 1991. Dillon's affidavit stated that he himself had received the cocaine in U.P.S. shipments from Breen. Evidence of the seizure of eight kilograms of cocaine made by Toronto police on November 8, 1991 was also tendered.
5 Early in September 1993, the appellant and his legal advisors were aware that the American authorities were going to undertake extradition proceedings and his advisers discussed the situation with the American prosecutor. On October 8 the extradition warrant was issued and four days later the appellant was arrested as he entered the court room to commence his trial on the Canadian indictment. The Crown then stayed the Canadian proceedings.
6 On the extradition hearing, affidavits of the appellant’s legal advisers were filed. One of these affidavits alleged that the Crown prosecutor had indicated that if the appellant did not plead guilty to the Canadian indictment the proposed extradition hearing would proceed.
7 It is this suggestion, made just before the trial in Canada was to commence, which is said to constitute egregious misconduct on the part of the Crown. I cannot agree with that contention.
8 There is no doubt that in considering an application for extradition Canadian authorities must act in good faith. See United States of America v. Cotroni, [1989] 1 S.C.R. 1469. The facts of this case simply do not disclose any lack of good faith.
9 At the outset I should state that like Griffiths J.A. ((1995), 96 C.C.C. (3d) 568), I am not at all sure that the affidavits were admitted by the judge hearing the application for extradition. They were marked only for identification and it would appear that they were never admitted as evidence.
10 However, even assuming that they were admitted they do not disclose any misconduct, let alone egregious misconduct, on the part of the Crown. At most all that they indicate is that an offer was made that, in exchange for a plea of guilty to the Canadian indictment, the extradition proceedings would be stayed. This was no more than an offer that may have been made with the best of intentions based upon the longer sentence the appellant might face in the United States. There was no pressure exerted upon the appellant to plead guilty.
11 Further, I cannot accept the submission that the decision of the Crown to stay the prosecution on the morning it was to commence was improper. The appellant could not have been surprised by the extradition proceedings. Rather, he was aware that they would probably be undertaken for at least six weeks before they were commenced. Indeed his Canadian legal advisers had consulted with the American prosecutor.
12 In addition, in R. v. Power, [1994] 1 S.C.R. 601, it was held that an appellate court is empowered to enquire into the exercise of prosecutional discretion only in the clearest of cases of abuse of the court’s process. If there was in fact any abuse of process, this is certainly not “the clearest of cases”.
13 The appeal is therefore dismissed.
Appeal dismissed.
Solicitors for the appellant: Greenspan, Buhr, Toronto.
Solicitor for the respondents: The Attorney General of Canada, Toronto.
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