United States of America v. Cobb, 2001 SCC 19, [2001] 1 SCR 587

United States of America v. Cobb, [2001] 1 S.C.R. 587, 2001 SCC 19

Harry Cobb and Allen Grossman                                                      Appellants

v.

United States of America                                                                  Respondent

Indexed as:  United States of America v. Cobb

Neutral citation:  2001 SCC 19.

File No.:  27610.

2000:  March 24; 2001:  April 5.

Present:  McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour JJ.

on appeal from the court of appeal for ontario

Constitutional law -- Charter of Rights  -- Fundamental justice –  Remedies -- Extradition -- Whether considerations relating to fundamental justice engaged at committal stage of extradition process -- Whether extradition judge ought to have waited for ministerial decision on surrender before granting stay -- Canadian Charter of Rights and Freedoms, ss. 7 , 24  -- Extradition Act, R.S.C. 1985, c. E-23, s. 9(3).

Extradition -- Extradition process -- Scope of Charter  jurisdiction of extradition judge at committal stage -- Whether extradition judge had jurisdiction to entertain considerations relating to fundamental justice at committal stage of extradition process and to remedy breach of fundamental justice by granting stay of proceedings -- Whether extradition judge ought to have waited for ministerial decision on surrender before granting stay -- Canadian Charter of Rights and Freedoms, ss. 7 , 24  -- Extradition Act, R.S.C. 1985, c. E-23, s. 9(3).

Extradition -- Extradition process -- Abuse of process -- Whether doctrine of abuse of process can be invoked at committal stage of extradition process -- Whether extradition judge ought to have waited for ministerial decision on surrender before granting stay.

Along with several other individuals, the appellants, who are Canadian citizens, allegedly defrauded American residents through a telemarketing scheme executed from Canada.  The U.S. requested their extradition on charges of fraud and conspiracy to commit fraud.  While many of the co-conspirators have voluntarily attorned to the jurisdiction of Pennsylvania, the appellants have contested their extradition on the basis that extraditing them would unjustifiedly violate their rights under s. 7  of the Canadian Charter of Rights and Freedoms , in light of statements made by the American judge and prosecuting attorney with carriage of the matter in the U.S.  First, as he was sentencing a co-conspirator in the scheme, the American judge assigned to their trial commented that those fugitives who did not cooperate would get the “absolute maximum jail sentence”.  Second, the prosecuting attorney hinted during a television interview that uncooperative fugitives would be subject to homosexual rape in prison.

Based on these comments, the extradition judge refused to order committal of the appellants and stayed the extradition proceedings, even though the U.S. had presented a prima facie case against them. The Court of Appeal set aside the stay and remitted the matter to the extradition judge, ruling that the extradition judge should not pre-empt the discretion vested in the Minister of Justice to surrender the fugitive in the discharge of Canada’s treaty obligations.  No such decision has issued as the Minister has deferred making a decision on surrender pending completion of the appeal against committal.

Held:  The appeal should be allowed.

The bilateral treaty, the extradition hearing and the exercise of the executive discretion to surrender the fugitive all have to conform to the requirements of the Charter .  The extradition judge must ensure that the judicial hearing itself is conducted in accordance with the principles of fundamental justice.  As a result of the 1992 amendments to the Extradition Act, the extradition judge is competent to grant Charter  remedies, including a stay of proceedings, on the basis of a Charter  violation but only insofar as the Charter  breach pertains directly to the circumscribed issues relevant at the committal stage of the extradition process.

Where the issues before the courts involve a liberty and security interest, s. 7 is engaged and requires that the proceedings be conducted fairly.  Accordingly, although the committal hearing is not a trial, it must conform with the principles of procedural fairness that govern all judicial proceedings in Canada.  While the possibility of an unfair trial in the Requesting State is left for the Minister’s consideration, conduct by the Requesting State, or by its representatives, agents or officials, which interferes or attempts to interfere with the conduct of judicial proceedings in Canada is a matter that directly concerns the extradition judge.  Section 7 permeates the entire extradition process and is engaged, albeit differently, at both stages of the process.

Litigants are also protected from unfair, abusive proceedings through the doctrine of abuse of process.  Canadian courts have an inherent and residual discretion at common law to control their own process and prevent its abuse.  A stay of proceedings will be entered only in the clearest of cases and is always better dealt with by the court where the abuse occurs.

In this case, a stay of proceedings was justified either as a remedy based on s. 7  of the Charter  or on the basis of the doctrine of abuse of process.  Both statements, or at the very least the prosecutor’s statement, were an attempt to influence the unfolding of Canadian judicial proceedings by putting undue pressure on the appellants to desist from their objections to the extradition request.  The success or failure of that interference is immaterial.  The intimidation bore directly upon the very proceedings before the extradition judge.  Aside from the intimidation itself, a committal order obtained in the present circumstances would clearly not be consistent with the principles of fundamental justice.  The existence of potential remedies at the executive stage does not oust the jurisdiction of the courts to preserve the integrity of their own process.  The violation of the appellants’ rights occurred at the judicial stage of the process and calls for redress at that stage and in that forum.

Cases Cited

Followed:  United States of America v. Kwok, [2001] 1 S.C.R. 532, 2001 SCC 18; applied: Canada v. Schmidt, [1987] 1 S.C.R. 500; United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7; United States of America v. Dynar, [1997] 2 S.C.R. 462; Argentina v. Mellino, [1987] 1 S.C.R. 536; United States v. Allard, [1987] 1 S.C.R. 564; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; not followed:  United States of America v. Cazzetta (1996), 108 C.C.C. (3d) 536, leave to appeal refused, [1996] 3 S.C.R. xiv; referred to: United States of America v. Shulman, [2001] 1 S.C.R. 616, 2001 SCC 21, rev’g (1998), 128 C.C.C. (3d) 475; United States of America v. Tsioubris, [2001] 1 S.C.R. 613, 2001 SCC 20; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Keyowski, [1988] 1 S.C.R. 657; Amato v. The Queen, [1982] 2 S.C.R. 418; R. v. Mack, [1988] 2 S.C.R. 903; R. v. Scott, [1990] 3 S.C.R. 979; R. v. Potvin, [1993] 2 S.C.R. 880; R. v. Power, [1994] 1 S.C.R. 601; R. v. Carosella, [1997] 1 S.C.R. 80; R. v. Campbell, [1999] 1 S.C.R. 565; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Jewitt, [1985] 2 S.C.R. 128; Mills v. The Queen, [1986] 1 S.C.R. 863; United States of Mexico v. Hurley (1997), 116 C.C.C. (3d) 414.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , ss. 6 , 7 , 11( b ) , 12 , 24(1) .

Extradition Act, R.S.C. 1985, c. E-23, ss. 9(3) [ad. 1992, c. 13, s. 2], 19(a) [idem, s. 3].

Extradition Act , S.C. 1999, c. 18 , ss. 25 , 84 .

Extradition Treaty between Canada and the United States of America, Can. T.S. 1976, No. 3.

APPEAL from a judgment of the Ontario Court of Appeal (1999), 125 O.A.C. 122, 139 C.C.C. (3d) 283, [1999] O.J. No. 3278 (QL), allowing the respondent’s appeal from a judgment of the Ontario Court (General Division) (1997), 11 C.R. (5th) 310, granting a stay of proceedings.  Appeal allowed.

Paul D. Stern, for the appellant Harry Cobb.

Brian H. Greenspan, for the appellant Allen Grossman.

David Littlefield and Kevin Wilson, for the respondent.

The judgment of the Court was delivered by

Arbour J.  – 

I.  Introduction

1                                   The  appellants are both Canadian citizens resisting extradition to the United States of America on charges of fraud and conspiracy to commit fraud. Their appeal was heard together with United States of America v. Kwok, [2001] 1 S.C.R. 532, 2001 SCC 18, United States of America v. Shulman, [2001] 1 S.C.R. 616, 2001 SCC 21, and United States of America v. Tsioubris, [2001] 1 S.C.R. 613, 2001 SCC 20, all released concurrently.  Several issues raised here were also raised in the other cases.  However, the central issue in the present appeal relates to the scope of the Charter  jurisdiction conferred on an extradition judge at the committal stage of the extradition process by the 1992 amendments to the Extradition Act, R.S.C. 1985, c. E-23.  Specifically, the question is whether the appellants’ rights under s. 7  of the Canadian Charter of Rights and Freedoms  are engaged at the committal stage, and, if so,  whether the extradition judge has jurisdiction to remedy a breach of s. 7 by granting a stay of proceedings.

II.  Factual Background

2                                   For the sake of clarity, I note at the outset that the appeals of Howard Shulman and James Tsioubris arise from the same factual background as this appeal by Harry Cobb and Allen Grossman.  Shulman appealed separately before our Court because the development of his case in the courts below gave rise to an issue not raised by the present appeal.  As for Tsioubris, his extradition hearing and appeal to the Court of Appeal for Ontario were joined with that of Cobb and Grossman.  However, as he did not seek and receive leave to appeal to our Court at the same time as the other two,  Tsioubris is also a separate appellant.  That being said, the facts of this appeal are directly salient to Shulman’s and Tsioubris’s separate appeals, the decisions in which are released concurrently.

3                                   The appellants, Harry Cobb and Allen Grossman, are Canadian citizens whose extradition is sought in connection with mail fraud charges.  Between November 1989 and March 1993, Cobb and Grossman, along with several others, including Shulman and Tsioubris, allegedly made illegal sales of gemstones to residents of the United States of America (the Requesting State) through telemarketing activities originating in Canada.  During this period and throughout the extradition proceedings, the appellants resided in Canada.

4                                   The fraudulent activities involved a scheme where it is alleged that the appellants (and other co-participants), acting as “salesmen”, would contact American residents by telephone in order to sell them gemstones.  The persons contacted had already purchased a number of gems in unrelated transactions.  Representations were made to these individuals that the appellants would buy their existing gemstone collections, on behalf of overseas buyers, at an inflated price.  However, before this sale could be arranged, the individuals were required to purchase additional gemstones, at substantially inflated prices, to complete their collections.  Some 67 persons who purchased these additional stones were defrauded of $22 million since, allegedly, no overseas buyers existed and no purchases of the existing gemstone collections ever took place, nor were these transactions ever intended.

5                                   On July 19, 1994, a United States federal grand jury in the U.S. District Court for the Middle District of Pennsylvania indicted the appellants, along with 23 other individuals and eight corporations, with one count of conspiracy to commit mail and wire fraud, and 51 substantive counts of mail or wire fraud.  On December 6, 1994, the U.S. sought the extradition of several persons, including the appellants.

6                                   Following an extensive investigation by the Royal Canadian Mounted Police into the appellants’ conduct, it was decided that Canadian proceedings would not be initiated against them.  Much of the material gathered by the Canadian police investigation, including material seized pursuant to search warrants executed in Canada, was provided to the American authorities.

7                                   Many of the original co-conspirators voluntarily attorned to the jurisdiction of Pennsylvania.  The appellants, however, have contested their extradition on the basis that to extradite them would be an unjustified violation of their Charter  rights, in light of statements made by the American judge assigned to their trial, and of statements made by the prosecuting attorney with carriage of the matter.  Specifically, the impugned comments are, first, that on May 22, 1995, while sentencing one of the co-accused in the scheme, the assigned trial judge, Judge William Caldwell, made the following statement:

Mr. Kay [a co-accused], I’m sure that you might have some appreciation for the difficulty I have in trying to keep the participants in this matter in the proper level of accountability, the proper range of accountability.  It’s not really possible to do that, but I am attempting to treat everyone who comes in here, especially those who cooperated, in an evenhanded fashion. . . . 

[T]he sentence that I’m imposing I think takes into account your cooperation and certainly you’re entitled to have that recognized. I want you to believe me that as to those people who don’t come in and cooperate and if we get them extradited and they’re found guilty, as far as I’m concerned they’re going to get the absolute maximum jail sentence that the law permits me to give.  [Emphasis added.]

8                                   Second, the prosecutor, Assistant U.S. Attorney in the Middle District of Pennsylvania and principal affiant of the Requesting State, Gordon A. D. Zubrod, stated during an interview with Linden MacIntyre for The Fifth Estate, a Canadian television program, the specific broadcast of which (“The Maple Leaf Swindle”) aired on the CBC network on September 30, 1997:

MacIntyre: ... For those accused who choose to fight extradition, Gordon Zubrod warns they’re only making matters worse for themselves in the long run.

Zubrod:  I have told some of these individuals, “Look, you can come down and you can put this behind you by serving your time in prison and making restitution to the victims, or you can wind up serving a great deal longer sentence under much more stringent conditions”, and describe those conditions to them.

MacIntyre:  How would you describe those conditions?

Zubrod:  You’re going to be the boyfriend of a very bad man if you wait out your extradition.

MacIntyre:  And does that have much of an impact on these people?

Zubrod:  Well, out of the 89 people we’ve indicted so far, approximately 55 of them have said, “We give up”.

9                                   The appellants argue that in light of the powerful influence on sentencing that can be exerted by an American prosecutor, they took Mr. Zubrod’s comments as a very serious threat. Their committal hearing commenced on October 6, 1997, within a week of the CBC broadcast.  They resisted their extradition to Pennsylvania on the grounds that: (i) they would face sentences in the Requesting State that are very substantially higher than those they would face in Canada, and (ii) they would be subjected to homosexual rape in prison.  They allege that to extradite them in these circumstances would constitute a breach of their right to security of the person and a violation of the principles of fundamental justice, contrary to s. 7  of the Charter .

10                               The extradition judge found that the United States had made out a prima facie case for extradition, but nevertheless refused to order the committal of the appellants on the basis of the comments made by the American judge and by the prosecutor.  Accordingly, he stayed the extradition proceedings.  The Court of Appeal set aside the stay and remitted the matter to the extradition judge.  The Minister of Justice has deferred making a surrender decision pending completion of the appeal against committal.  Consequently, the appellants’ appeal to this Court is limited to the committal stage of the process and the extradition judge’s jurisdiction to grant a stay.

III.  Relevant Statutory Provisions

11                               Canadian Charter of Rights and Freedoms 

7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

24. (1)  Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Extradition Act, R.S.C. 1985, c. E-23, as amended by S.C. 1992, c. 13

9. (3) For the purposes of the Constitution Act, 1982 , a judge who is a superior court judge or a county court judge has, with respect to the functions that that judge is required to perform in applying this Act, the same competence that that judge possesses by virtue of being a superior court judge or a county court judge.

Extradition Act , S.C. 1999, c. 18 

25. For the purposes of the Constitution Act, 1982 , a judge has, with respect to the functions that the judge is required to perform in applying this Act, the same competence that that judge possesses by virtue of being a superior court judge.

84. The Extradition Act  repealed by section 129 of this Act applies to a matter respecting the extradition of a person as though it had not been repealed, if the hearing in respect of the extradition had already begun on the day on which this Act comes into force [June 17, 1999].

IV.  Proceedings and Judgments Below

A.   Ontario Court (General Division) (1997), 11 C.R. (5th) 310

12                               On October 28, 1997, Hawkins J. concluded that the United States had presented a prima facie case against Cobb, Grossman and Tsioubris.  He then had to adjudicate on two applications brought by the appellants. The first, brought pursuant to ss. 11( b )  and 24(1)  of the Charter  for undue delay in the time it took to hold the committal hearing, was dismissed.   The second and more salient of the two, brought pursuant to ss. 7  and 24(1)  of the Charter  for a stay of proceedings on the basis of the statements made by the American judge and prosecutor assigned to the case, was allowed and Hawkins J. granted a stay of the proceedings against Cobb, Grossman and Tsioubris.

13                               The extradition judge relied on the decision of the Court of Appeal for Quebec in United States of America v. Cazzetta (1996), 108 C.C.C. (3d) 536, leave to appeal to the Supreme Court of Canada denied, [1996] 3 S.C.R. xiv, to conclude that he had jurisdiction to entertain a s. 7  Charter  argument and grant relief under s. 24.

14                               He found that Judge Caldwell’s remark was “nothing short of a bold, undisguised threat intended to intimidate the applicants and others into abandoning their right to resist extradition by lawful means” (para. 25).  As for the televised comments of the prosecutor, Mr. Zubrod,  Hawkins J. added, “I believe and I hope I can safely say that no right-thinking Canadian would endorse the use of a threat of homosexual rape as a means of persuading Canadian residents to abandon their rights to a full extradition hearing” (para. 35).  In granting a stay of the extradition proceedings, he concluded, at para. 36:

In my view, to commit these fugitives for surrender to be tried before a judge who has publicly threatened them with the imposition of a maximum sentence before having commenced their trial and to be prosecuted by a prosecutor who has publicly threatened them with homosexual rape (boasting at the same time how effective the technique has been) “shocks the Canadian conscience” and is “simply not acceptable”.

B.  Court of Appeal for Ontario (1999), 125 O.A.C. 122

15                               On September 13, 1999, Brooke J.A. set aside the stay and remitted the matter to the extradition judge for the formal issuance of warrants of committal. For a unanimous court, he held that there was no basis upon which to distinguish the Court of Appeal’s decision in United States of America v. Shulman (1998), 128 C.C.C. (3d) 475 (Ont. C.A.).  He held that, despite the 1992 amendments to the Extradition Act, the role of the extradition judge remains a narrow one, confined to that specified in the statute and that the court should not pre-empt the discretion vested in the Minister of Justice to surrender the fugitive in the discharge of Canada’s treaty obligations.  The role of the extradition judge is to determine whether there is a prima facie case that a crime falling under the terms of the Extradition Treaty between Canada and the United States of America, Can. T.S. 1976, No. 3, has been committed by the fugitives.  Even if the extradition judge had broad s. 24  Charter  jurisdiction, he or she should wait until the Minister has made a decision on surrender.  Thus, Hawkins J.’s decision to stay the proceedings was premature.

V. Issue

16                               The issue before us is whether the Court of Appeal for Ontario erred in finding that considerations relating to s. 7  of the Charter  are not engaged at the committal stage of the extradition process, are beyond the jurisdiction of the extradition judge, and thus are only engaged at the time of the decision of the Minister of Justice to surrender the fugitive.

VI.  Analysis

17                               The respondent has not argued that the comments made by Judge Caldwell were misinterpreted by Hawkins J. or that his characterization of these comments was ill-founded or inappropriate.  I agree that taken at face value, the remarks made by the sentencing judge in a related case reasonably bear the interpretation given to them by the extradition judge in this case.  I wish to point out, however, that they may also carry a slightly different meaning, one that would cause me considerably less concern.  Judge Caldwell was sentencing a person who had been cooperative.  He was entitled to give credit to that cooperation in the sentence that he was about to impose.  It is in that context that he stated, in relation to those who did not cooperate: “... if we get them extradited and they’re found guilty, as far as I’m concerned they’re going to get the absolute maximum jail sentence that the law permits me to give” (emphasis added).  It is quite possible that the judge did not mean that he would impose the maximum sentence regardless of any other relevant factor, but simply that he would discount the maximum sentence by any other legally relevant factor, and then give no additional reduction in light of the absence of cooperation.  This is, I would have thought, all that the law permits.

18                               Obviously, this is not what the appellants or Hawkins J. understood the impugned passage to mean.  While the interpretation given by the extradition judge may not have been the one intended by Judge Caldwell, it is nevertheless a reasonable one.  Indeed in my view, it is what a lay person would have understood and we must take that as a fact reasonably found by the trier of facts.  I  would not interfere with this finding.

19                               As for the comments made by the prosecuting attorney: “You’re going to be the boyfriend of a very bad man if you wait out your extradition”, referring to the harsher conditions under which a prison sentence would be served, that statement, in my view, bears precisely the meaning given to it by the extradition judge.  No less sinister interpretation is plausible.

20                               With that in mind I now turn to the consequences of these statements on the appellants’ extradition process.  I shall analyse briefly the Charter  jurisdiction vested in the extradition judge before determining whether he or she can grant a stay of proceedings to remedy breaches of fundamental justice.

A.  The Impact of Section 9(3) on the Charter Jurisdiction of the Extradition Judge

21                               Just as I did in Kwok, I shall refer throughout these reasons to the Extradition Act, R.S.C. 1985, c. E-23 as amended by An Act to amend the Extradition Act, S.C. 1992, c. 13.  The appellants argue that s. 9(3)  of the Extradition Act gives an extradition court complete jurisdiction in connexion with Charter  matters as they relate to the judicial function performed at the committal stage of the extradition process.  The respondent takes the position that s. 9(3) has not expanded the role of the Charter  at that phase of the process and that the extradition judge has the same limited Charter  jurisdiction previously exercised by the habeas corpus judge with respect to Charter  issues. 

22                               I concluded in Kwok, that the Charter  jurisdiction of the committal court must be assessed in light of the court’s limited function under the Act.  This function only extends to the determination of whether the foreign authority has put forward sufficient admissible evidence to make out a prima facie case against the fugitive.

23                               I also concluded in Kwok, that the extradition judge does possess some Charter  jurisdiction, so long as the Charter  issues relate to the initial phase of the extradition process.  In that case, I held that a fugitive’s right to remain in Canada (s. 6) was not engaged at the committal stage in and of itself, and arose only at the executive phase of the process, in the Minister’s decision to surrender, and upon judicial review of that decision.

24                               This Court has confirmed, in Canada v. Schmidt, [1987] 1 S.C.R. 500, at pp. 520-21, and again, more recently, in United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7, that the Charter  applies to extradition proceedings in the sense that the treaty, the extradition hearing in Canada and the exercise of the executive discretion to surrender the fugitive all have to conform to the requirements of the Charter . The committal judge presides over a judicial hearing and he or she must ensure that the hearing itself is conducted in accordance with the principles of fundamental justice (s. 7).

25                               In light of the limited powers of the extradition judge prior to the 1992 amendments, the Charter  issues arising at the committal stage were decided by a judge reviewing the committal order pursuant to a writ of habeas corpus (Extradition Act,  s. 19 (a)).  The 1992 amendments abolished the recourse to a writ of habeas corpus, replacing it by an appeal to the court of appeal, and expanded the powers of the extradition judge to include the functions previously exercised on habeas corpus review.  This expansion included the power to grant appropriate remedies for pertinent Charter  breaches.  As this Court indicated in United States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 146:

Perhaps it will suffice to observe that as a result of the enactment of the section [s. 9(3)  of the Extradition Act], the extradition judge is a “court of competent jurisdiction” pursuant to s. 24  of the Charter , provided that the presiding judge normally fulfills that function.

26                               The extradition judge is therefore competent to grant Charter  remedies, including a stay of proceedings, on the basis of a Charter  violation but only insofar as the Charter  breach pertains directly to the circumscribed issues relevant at the committal stage of the extradition process.

B.  Committal Jurisdiction to Remedy Breaches of Fundamental Justice

27                               The allegation of a breach of fundamental justice stems from the statements made by the American trial judge and the prosecutor, seemingly directed at the accused responding to an extradition request by the United States.  The ensuing issues are:  whether s. 7  of the Charter  can arise at the committal stage of the extradition process, enabling the extradition judge to grant a Charter  remedy; whether the doctrine of abuse of process can be invoked; and whether, notwithstanding any remedial powers, the extradition judge ought to have waited for a ministerial decision before granting a stay of proceedings.

28                               The appellants submit that the determination of whether a fugitive’s s. 7 rights are infringed should not be left to the Minister, as a Minister is not “a court of competent jurisdiction”. They submit that the threats of homosexual rape and a sentence at the maximum end of the legal spectrum arising solely as a result of the exercise of a fugitive’s rights pursuant to Canadian law infringe s. 7.  In addition to the statutory powers, the appellants argue that the extradition judge has inherent powers at common law to control the process of the court and remedy abuses of process. To proceed further and issue a committal order would constitute an abuse of the judicial process and infringe their security interest in violation of the principles of fundamental justice.  The extradition proceedings ought therefore to be stayed.

29                               The respondent maintains that s. 7  Charter  issues are not engaged at the extradition hearing stage unless they somehow relate to the narrow function of the extradition judge. The respondent argues that the comments in question were irrelevant to the decision of the extradition judge as regards the sufficiency of the evidence and that it is the Minister’s task to give effect to s. 7 in deciding whether to surrender.  Moreover, whether the issue is approached in terms of the Charter  jurisdiction of the extradition judge or in terms of the inherent jurisdiction of superior courts, the extradition judge ought not to have pre-empted the decision of the Minister of Justice in respect of the comments made by the U.S. judge and prosecutor.  The respondent points to Argentina v. Mellino, [1987] 1 S.C.R. 536, as establishing that it is not the extradition court’s role to give effect to suggestions that a fugitive will not be given a fair trial in the Requesting State.

(i) Section 7  of the Charter  in the Context of the Committal Hearing

30                               This Court has stated repeatedly that both the extradition hearing and the exercise of the executive discretion to surrender a fugitive must conform with the requirements of the Charter , including the principles of fundamental justice: Schmidt, supra; United States v. Allard, [1987] 1 S.C.R. 564; Burns, supra.   In Schmidt, at p. 522, La Forest J. addressed the concerns for the treatment that a fugitive would likely receive at the hands of the Requesting State:

I have no doubt either that in some circumstances the manner in which the foreign state will deal with the fugitive on surrender, whether that course of conduct is justifiable or not under the law of that country, may be such that it would violate the principles of fundamental justice to surrender an accused under those circumstances. To make the point, I need only refer to a case that arose before the European Commission on Human Rights, Altun v. Germany (1983), 5 E.H.R.R. 611, where it was established that prosecution in the requesting country might involve the infliction of torture. Situations falling far short of this may well arise where the nature of the criminal procedures or penalties in a foreign country sufficiently shocks the conscience as to make a decision to surrender a fugitive for trial there one that breaches the principles of fundamental justice enshrined in s. 7.

31                               In Dynar, supra, at para. 124, the focus was on the required fairness of the Canadian process:

The Charter does therefore guarantee the fairness of the committal hearing. The Minister’s discretion in deciding to surrender the fugitive may also attract Charter  scrutiny.  In both instances, s. 7  of the Charter , which provides that an individual has a right not to be deprived of life, liberty or security of the person, except in accordance with the principles of fundamental justice, will be most frequently invoked.  It is obvious that the liberty and security of the person of the fugitive are at stake in an extradition proceeding. The proceedings must therefore be conducted in accordance with the principles of fundamental justice. . . .

32                               The principles of fundamental justice guaranteed under s. 7 vary according to the context of the proceedings in which they are raised: Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; Dynar, supra.  Where the issues before the courts involve a liberty and security interest, s. 7 is engaged and requires that the proceedings be conducted fairly.  Accordingly, although the committal hearing is not a trial, it must conform with the principles of procedural fairness that govern all judicial proceedings in this country, particularly those where a liberty or security interest is at stake.

33                               The respondent argues that any concern that the appellants may face unfair proceedings in the United States is a matter for the Minister, not for the extradition judge, whose sole function is to assess the sufficiency of the evidence.  True as this may be, it misses the real issue here. The issue at this stage is not whether the appellants will have a fair trial if extradited, but whether they are having a fair extradition hearing in light of the threats and inducements imposed upon them, by those involved in requesting their extradition, to force them to abandon their right to such a hearing.  The focus of the fairness issue is thus the hearing in Canada, to which the Charter  applies, and not the eventual trial in the U.S., which it may be premature to consider pending the Minister’s decision on surrender.  Conduct by the Requesting State, or by its representatives, agents or officials, which interferes or attempts to interfere with the conduct of judicial proceedings in Canada is a matter that directly concerns the extradition judge. 

34                               Section 7 permeates the entire extradition process and is engaged, although for different purposes, at both stages of the proceedings. After committal, if a committal order is issued, the Minister must examine the desirability of surrendering the fugitive in light of many considerations, such as Canada’s international obligations under the applicable treaty and principles of comity, but also including the need to respect the fugitive’s constitutional rights.  At the committal stage, the presiding judge must ensure that the committal order, if it is to issue, is the product of a fair judicial process.

35                               The Requesting State is a party to judicial proceedings before a Canadian court and is subject to the application of rules and remedies that serve to control the conduct of parties who turn to the courts for assistance.  Even aside from any claim of Charter  protection, litigants are protected from unfair, abusive proceedings through  the doctrine of abuse of process, which bars litigants – and not only the State – from pursuing frivolous or vexatious proceedings, or otherwise abusing the process of the courts.

(ii) The Doctrine of Abuse of Process

36                               Although s. 7  of the Charter  incorporates the abuse of process doctrine, it does not extinguish the common law doctrine, as was recognized by L’Heureux-Dubé J. in R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 70:

... I conclude that the only instances in which there may be a need to maintain any type of distinction between the two regimes will be those instances in which the Charter , for some reason, does not apply yet where the circumstances nevertheless point to an abuse of the court’s process.

37                               Canadian courts have an inherent and residual discretion at common law to control their own process and prevent its abuse.  The remedy fashioned by the courts in the case of an abuse of process, and the circumstances when recourse to it is appropriate were described by this Court in R. v. Keyowski, [1988] 1 S.C.R. 657, at pp. 658-59:

The availability of a stay of proceedings to remedy an abuse of process was confirmed by this Court in R. v. Jewitt, [1985] 2 S.C.R. 128. On that occasion the Court stated that the test for abuse of process was that initially formulated by the Ontario Court of Appeal in R. v. Young (1984), 40 C.R. (3d) 289.  A stay should be granted where “compelling an accused  to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency”, or where the proceedings are “oppressive or vexatious” ([1985] 2 S.C.R. [128], at pp. 136-37).  The Court in Jewitt also adopted “the caveat added by the Court in Young that this is a power which can be exercised only in the ‘clearest of cases’” (p. 137).

See also Amato v. The Queen, [1982] 2 S.C.R. 418; R. v. Mack, [1988] 2 S.C.R. 903,  at p. 939; R. v. Scott, [1990] 3 S.C.R. 979; R. v. Potvin, [1993] 2 S.C.R. 880; R. v. Power, [1994] 1 S.C.R. 601, at pp. 612-15; R. v. Carosella, [1997] 1 S.C.R. 80, at paras. 52-56; R. v. Campbell, [1999] 1 S.C.R. 565, at paras. 20 to 22; and Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44, at paras. 116 and 118 (per Bastarache J.).

38                               When a stay of proceedings is entered in a criminal case for abuse of process,  “[t]he prosecution is set aside, not on the merits . . . , but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court”: R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667.  The remedy is reserved for the clearest of cases and is always better dealt with by the court where the abuse occurs: R. v. Jewitt, [1985] 2 S.C.R. 128.

39                               This Court’s observation in Mellino, supra, that a superior court judge sitting in extradition proceedings has no inherent jurisdiction to stay proceedings based on the common law doctrine of abuse of process must now be interpreted in light of the 1992 amendments to the Extradition Act.  When Mellino was decided, the extradition judge had a narrow role to play and was subject to the supervisory authority of the superior court exercising habeas corpus jurisdiction.  The jurisdiction to protect against abuse of process rested with the habeas corpus judge, as the extradition judge had no inherent jurisdiction either at common law or under the Charter : see Mills v. The Queen, [1986] 1 S.C.R. 863.  The consolidation of the habeas corpus jurisdiction with that of the committal judge, confirmed in Kwok, now vests the authority to apply the doctrine of abuse of process in the committal court.

40                               The decision of Hawkins J. granting a stay of proceedings was therefore justified, in my opinion, either as a remedy based on s. 7  of the Charter  or on the basis of the court’s inherent powers at common law to control its own process and prevent its abuse.  In this case, the abuse of process was directly and inextricably related to the committal hearing.

(iii) The Need to Wait for an Executive Decision

41                               It is possible that, at a later stage, the Minister might have seen fit in this case not to proceed with the surrender, or to do so under certain terms and conditions.  Had she not postponed her consideration of the issue when it came before her, the Minister would have had to consider whether it would be appropriate to surrender the appellants to the United States to face trial before a court which had already expressed its intention to apply the maximum sentence against them should they be convicted.  This should raise essentially two concerns for the Minister.  The first is whether the fugitives will be the subject of a process, in the Requesting State, whereby an important part, the sentencing one, has been prejudged, and whether this raises serious concerns of fairness and due process.  The second issue, which the Minister would also have to consider, is whether the reasons expressed for such a pre-determination of the appropriate sentence by the trial judge raise concerns about Canada’s obligations under the treaty. The American trial judge has indicated that the harshness of the sentence will be a reflection of the unwillingness of the appellants to waive the process, judicial and executive, put in place under Canadian law, consistent with the terms of the treaty, to determine the appropriate action to be taken by Canada vis-à-vis the Requesting State.  In such circumstances, a Minister may have concerns about an apparent attempt to interfere with Canada’s discharge of its obligations.

42                               As mentioned earlier, the s. 7 issues before the extradition judge are different.  His or her concern is not principally whether the appellants will face a possibly unfair trial, or an unfair sentencing hearing in the United States, or whether, if convicted and sentenced to imprisonment, they will be subjected to sexual violence as predicted, indeed as prescribed, by the attorney prosecuting the case against them.  These concerns are for the most part premature at the committal stage as they engage the consideration of issues involving other constitutional rights, such as ss. 6 and 12,  which must await consideration by the Minister, and by the courts upon judicial review of that executive decision.  The s. 7 issue before the extradition judge is whether the extrajudicial conduct and pronouncements of a party to the proceedings, or of those associated with that party, disentitle that party from the judicial assistance that it is seeking and whether it would violate the principles of fundamental justice to commit the fugitives for surrender to the Requesting State.

43                               In my opinion, Hawkins J. was correct in deciding in this case that the matter before him should be stayed for abuse of process.   The statements made by the American judge and the U.S. attorney may properly be visited upon the Requesting State itself, who was a party before the court.  This is particularly so since the U.S. attorney who made the impugned statements was the prosecutor who had carriage of the case and also the principal affiant before the extradition judge in support of the case for the United States.   Both statements, or at the very least the prosecutor’s statement, were an attempt to influence the unfolding of the Canadian judicial proceedings by putting undue pressure on the appellants to desist from their objections to the extradition request.  The pressures were not only inappropriate but also, in the case of the statements made by the prosecutor on the eve of the opening of the judicial hearing in Canada, unequivocally amounted to an abuse of the process of the court.  We do not condone the threat of sexual violence as a means for one party before the court to persuade any opponent to abandon his or her right to a hearing.  Nor should we expect litigants to overcome well-founded fears of violent reprisals in order to be participants in a judicial process.  Aside from such intimidation itself, it is plain that a committal order requiring a fugitive to return to face such an ominous climate – which was created by those who would play a large, if not decisive role in determining the fugitive’s ultimate fate – would not be consistent with the principles of fundamental justice.

44                               These concerns, and the remedies to which they give rise, properly belong to the judicial phase of the extradition process as they are not dependent on the ultimate outcome of either the committal or the surrender decision.  Nothing the Minister could have done would address the unfairness which would taint a committal order obtained under the present circumstances.   The Minister is not the guardian of the integrity of the courts.  It is for the courts themselves to guard and preserve their integrity. This is therefore not a case that must await the executive decision.  The violations of the appellants’ rights occurred at the judicial stage of the process and call for redress at that stage and in that forum.

45                               Under the Extradition Act, the Requesting State must come before the courts in Canada to show that it has a case against the fugitive that entitles it to proceed to request a surrender order from the Minister.  That judicial phase is mandatory unless the fugitive consents to being committed.  In the course of that process, the Requesting State is governed by the rules of fundamental justice that prevail when liberty interests are at stake, and by the doctrine of abuse of process that governs the conduct of all litigants before Canadian courts.

46                               The respondent also argued that the concerns raised by the appellants could and should have been left to the Minister to address because more appropriate remedies were available at that level. For example, it is argued that the Minister could seek assurances that the appellants will be fairly treated in the United States. In United States of Mexico v. Hurley (1997), 116 C.C.C. (3d) 414 (Ont. C.A.), the fugitive applied for judicial review of the Minister’s decision to extradite him on the basis that he feared persecution because of his sexual orientation.  The Court of Appeal acknowledged that there was a “hostile climate towards homosexuals in Mexico” (p. 422), but the Minister had sought and was given assurances by the Requesting State concerning the conditions of Hurley’s future incarceration.  In the end, the court deferred to the Minister’s decision to extradite.

47                               The respondent relies on La Forest J.’s statement in Mellino, at p. 558, to argue that Hawkins J. was wrong in pre-empting the Minister’s surrender decision:

... a court must firmly keep in mind that it is in the executive that the discretion to surrender a fugitive is vested. Consequently, barring obvious or urgent circumstances, the executive should not be pre-empted.  In cases where the feared wrong may be avoided by interstate arrangements, it may be doubted that the courts should ordinarily intervene before the executive has made an order of surrender. 

The respondent takes the position that the circumstances of the case under consideration were neither obvious nor urgent.  It is submitted that the impugned comments will not necessarily be acted upon and that, in any event, the Minister may fully address the situation by requesting that another judge and prosecutor take carriage of the matter.

48                               As I indicated before, the existence of potential remedies at the executive stage does not oust the jurisdiction of the courts to control their own process in cases such as here, where the courts are required to preserve the integrity of their own proceedings.  For example, if the impugned statements at issue here had been uttered after the committal order, and any appeal therefrom, the appellants might have been left to raise their concerns with the Minister, who might have considered the appropriateness of a response ranging from refusing to surrender, to seeking the types of assurances that may alleviate legitimate concerns with the fairness of the foreign process.

49                               It has also been argued that the impugned comments were not uttered by Canadian actors and therefore do not, in and of themselves, engage the Charter .  This, in my view, mischaracterizes the issue.  The present appeal is not a case of “foreign” conduct, which may not attract Charter  scrutiny, but it is conduct attributable to a litigant before a Canadian court. This is sufficient to trigger the application, if not of s. 7  of the Charter , then of the common law doctrine of abuse of process, which, in the circumstances, rests on the same principles and calls for the same remedies: see O’Connor, supra. It is therefore unnecessary to decide whether the presence of the Attorney General of Canada exercising a statutory function on behalf of the United States, such as appearing before a Canadian court on behalf of the United States in a Canadian proceeding pursuant to the Extradition Act, would be sufficient to trigger the Charter  protection requested here.  Suffice it to say that pursuant to governmental agreements and arrangements, Canadian government officials acted as counsel and agent for a party litigant who attempted to dissuade Canadian citizens from asserting their liberty rights before a Canadian court.

50                               Finally, the respondent argues that the impugned comments could not have been meant to intimidate the appellants into abandoning their right to resist extradition since the appellants were not in fact dissuaded from availing themselves of their procedural rights, as evidenced by their appeal before this Court.  I find no merit to this argument. It may very well be that the threats of the severe and illegal consequences that may follow their resistance to extradition have made the appellants more, not less, determined to resist their surrender. Frankly, this would have been quite understandable.  The abuse of process here consists in the attempt to interfere with the due process of the court.  The success or failure of that interference is immaterial.

VII.  Conclusion and Disposition

51                               I would answer the issue posed in this appeal in the affirmative.  The Court of Appeal for Ontario erred in finding that the considerations relating to s. 7  of the Charter  were not engaged at the committal stage of the extradition proceedings. 

52                               By placing undue pressure on Canadian citizens to forego due legal process in Canada, the foreign State has disentitled itself from pursuing its recourse before the courts and attempting to show why extradition should legally proceed.  The intimidation bore directly upon the very proceedings before the extradition judge, thus engaging the appellants’ right to fundamental justice at common law, under the doctrine of abuse of process, and as also reflected in s. 7  of the Charter .  The extradition judge did not need to await a ministerial decision in the circumstances, as the breach of the principles of fundamental justice was directly and inextricably tied to the committal hearing.

53                               In my view, the extradition judge had the jurisdiction to control the integrity of the proceedings before him, and to grant a remedy, both at common law and under the Charter , for abuse of process.  He was also correct in concluding as he did that this was one of the clearest of cases where to proceed further with the extradition hearing would violate “those fundamental principles of justice which underlie the community’s sense of fair play and decency” (Keyowski, supra, at pp. 658-59), since the Requesting State in the proceedings, represented by the Attorney General of Canada, had not repudiated the statements of some of its officials that an unconscionable price would be paid by the appellants for having insisted on exercising their rights under Canadian law.

54                               Accordingly I would allow the appeal, set aside the order of the Court of Appeal for Ontario and reinstate the order of Hawkins J. staying the extradition proceedings.

Appeal allowed.

Solicitors for the appellant Harry Cobb:  Stern & Landesman, Toronto.

Solicitors for the appellant Allen Grossman:  Greenspan, Humphrey, Lavine, Toronto.

Solicitor for the respondent:  The Department of Justice, Toronto.