United States of America v. Kwok, 2001 SCC 18, [2001] 1 SCR 532

United States of Amercia v. Kwok, [2001] 1 S.C.R. 532, 2001 SCC 18

Paul Yick Wai Kwok                                                                          Appellant

v.

United States of America                                                                  Respondent

and between

Paul Yick Wai Kwok                                                                          Appellant

v.

Minister of Justice                                                                             Respondent

Indexed as:  United States of America v. Kwok

Neutral citation:  2001 SCC 18.

File No.:  26919.

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  -- Mobility rights -- Right to remain in Canada -- Extradition -- Whether mobility rights engaged at committal stage of extradition process -- Whether such rights should only be considered at surrender stage -- Whether Minister’s decision to surrender fugitive to U.S. breached his mobility rights -- Canadian Charter of Rights and Freedoms, s. 6(1) .

Extradition -- Extradition process -- Scope of Charter  jurisdiction of extradition judge at committal stage -- Interpretation of s. 9(3) of Extradition Act, R.S.C. 1985, c. E-23.

Extradition -- Disclosure of information -- Fugitive’s disclosure rights in extradition process -- Fugitive’s request for disclosure denied by extradition judge at committal stage and by Minister at surrender stage of extradition process -- Whether extradition judge and Minister correct in denying request.

The appellant is a Canadian citizen resisting extradition to the U.S. on charges of conspiracy to traffic heroin. Seeking to exercise his right to remain in Canada, under s. 6(1)  of the Canadian Charter of Rights and Freedoms , he requested complete disclosure of the RCMP investigation, which had parallelled the American investigation.  American prosecutors refused disclosure on the grounds that they did not rely on the fruits of the Canadian investigation to request extradition.  At the committal hearing, the extradition judge dismissed the appellant’s renewed request for disclosure, ruling that any application under s. 6(1)  of the Charter  was either premature or beyond the function of the extradition judge. The evidence met the requisite test for sufficiency and  the appellant was committed for surrender. The Minister of Justice refused his subsequent request for disclosure and ordered his immediate surrender to the U.S.  The Court of Appeal dismissed both his appeal against the committal order and his application for judicial review of the surrender order.

Held:  The appeals should be dismissed.

The Charter jurisdiction of the extradition judge is the same under either the 1992 or the current version of the Extradition Act. Fundamentally, the 1992 amendments were not meant to alter the two-tiered structure of the Extradition Act.  While s. 9(3)  eliminates the habeas corpus stage, both the extradition judge and the Minister of Justice maintain their separate functions and jurisdictions within the process, with the court deciding whether the Requesting State has made out a prima facie case to commit the fugitive, while the Minister makes the ultimate discretionary decision to surrender the fugitive. Section 9(3)  does not confer an expanded Charter  jurisdiction upon the extradition judge.  It simply permits the extradition judge to exercise the jurisdiction previously reserved for the habeas corpus judge.  This includes granting remedies for Charter  breaches that pertain directly to the circumscribed issues relevant at the committal stage of the extradition process.  Review of both the committal decision made by the extradition judge and the surrender decision made by the Minister rests with the provincial court of appeal and can be combined in a single hearing.

Section 6  of the Charter  is not engaged by a decision of the Canadian prosecutorial authorities not to prosecute in Canada or by the issuance of a warrant for committal.  Mobility issues are only engaged at the time of surrender and are therefore properly considered at the ministerial stage of the extradition process.  The Minister of Justice must comply with the Charter  on all matters incidental to surrendering a fugitive.  Issues relating to s. 6  are therefore premature before the extradition judge as extradition hearings do not have to serve as the forum in which to generate the fullest factual record on all constitutional matters that may relate to the extradition process.  Although remedies for anticipatory Charter  breaches can be granted,  the extradition judge ought not to pre-empt the Minister’s decision on surrender.  The Minister may receive affidavit evidence and/or call a discretionary hearing to allow a fugitive a reasonable opportunity to state his or her case. Judicial review of the Minister’s surrender order provides for a timely, effective and complete Charter  remedy for any s. 6  infringement that may have occurred in the extradition process.  In that sense, a court of appeal is fully empowered to grant Charter  remedies and to receive evidence to assist it in its assessment of s. 6, or any other Charter  issues.  In addition, even if  evidence that relates to matters falling outside the ambit of the extradition judge’s jurisdiction, such as ss. 6  or 12  issues, cannot be considered until the Minister has rendered a decision on surrender, on efficiency grounds, the extradition judge retains a limited discretion to hear, without deciding, such evidence when the allegations of Charter  infringement hold an air of reality.

Here, the extradition judge was correct in declining to hear the appellant’s s. 6 arguments and the Court of Appeal was right in concluding that the Minister had not infringed the appellant’s mobility rights in ordering his surrender to the U.S.  First,  there was no improper delegation. Receiving assistance from local prosecutors in determining the feasibility of a Canadian prosecution does not displace the Minister’s discretion or ability to render a decision. Second, the Minister’s decision with respect to the appropriateness of domestic prosecution attracts a high degree of deference.  Efficacy of prosecution goes beyond simply determining whether it has a chance of resulting in a conviction. Canada must be mindful of a foreign State’s interest in prosecuting the fugitive on its own territory.  Here, the Minister provided reasons which demonstrate that he considered the appellant’s mobility rights but concluded that prosecution in Canada would not be as effective in light of the fact that the U.S. had a greater interest in the prosecution since most of the alleged activities were committed there.  Lastly, while much less deference is due on the issue of whether the Minister properly considered the fugitive’s constitutional rights, the Minister’s decision to surrender was clearly reasonable and there is no evidence of improper conduct, arbitrary motives or bad faith in the decision.

Extradition proceedings are not concerned with issues of guilt or innocence.  This affects the scope of a fugitive’s right to disclosure. The extradition judge may only order the production of materials relevant to the issues properly raised at the committal stage of the process, subject to a discretion to expand the scope of that hearing. Since the Requesting State was not relying upon materials in the possession of Canadian authorities, and in the absence of any indication of bad faith or improper motives on the part of the U.S. or Canadian prosecuting authorities, there was no obligation for the U.S. to provide further disclosure. As for the degree of disclosure required from the Requested State, it will be considered only where a justiciable Charter  issue can arise from the potential involvement of Canadian authorities in the gathering of evidence.  Here,  the materials sought by the appellant were not relevant either on appeal from the judicial decision to commit or on judicial review of the executive decision to surrender.  Bearing in mind the expedient and summary nature of the committal hearing, the discretion that attaches to the Minister’s decision to surrender and the nature of extradition proceedings generally, the appellant received adequate disclosure at all stages of the extradition process.

Cases Cited

Applied:  United States of America v. Dynar, [1997] 2 S.C.R. 462; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; Argentina v. Mellino, [1987] 1 S.C.R. 536; Canada v. Schmidt, [1987] 1 S.C.R. 500; McVey v. United States of America, [1992] 3 S.C.R. 475; United States of America v. Lépine, [1994] 1 S.C.R. 286; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; Pacificador v. Philippines (Republic of) (1993), 83 C.C.C. (3d) 210, leave to appeal refused, [1994] 1 S.C.R. x; United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7, aff’g (1997), 116 C.C.C. (3d) 524; United States of America v. Whitley, [1996] 1 S.C.R. 467, aff’g (1994), 94 C.C.C. (3d) 99; Gwynne v. Canada (Minister of Justice) (1998), 103 B.C.A.C. 1, leave to appeal refused, [1998] 1 S.C.R. ix; R. v. Power, [1994] 1 S.C.R. 601; 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; approved:  United States of America v. Leon (1995), 96 C.C.C. (3d) 568, aff’d [1996] 1 S.C.R. 888; Swystun v. United States of America (1987), 40 C.C.C. (3d) 222; États-Unis d’Amérique v. Tavormina, [1996] R.J.Q. 693; United States of America v. Cheema, [1999] B.C.J. No. 1365 (QL); United States of America v. Garcia, [1994] O.J. No. 1027 (QL); United States of America v. Singh, [1994] O.J. No. 3941 (QL); United States of America v. Palmer, Ont. Ct. (Gen. Div.), January 23, 1996; United States of America v. D’Agostino (1997), 41 C.R.R. (2d) 325; United States of America v. Turenne (1998), 133 Man. R. (2d) 131; Thailand v. Saxena, [1999] B.C.J. No. 981 (QL); Thailand v. Saxena, [1999] B.C.J. No. 1364 (QL); disapproved:  United States of America v. Tilley (1996), 183 A.R. 158; United States of America v. Tilley, [1996] A.J. No. 718 (QL); United States of America v. Kerslake (1996), 142 Sask. R. 112; Chan v. Direction de la Maison Tanguay, [1996] R.J.Q. 335; Langman v. États-Unis d’Amérique, Sup. Ct. Mtl., No. 500-36-000987-977, October 16, 1997; Hong Kong v. Chan Chui-Mei, [1997] Q.J. No. 4066 (QL); 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, aff’g [1995] O.J. No. 4497 (QL); United States of America v. Tsioubris,  [2001] 1 S.C.R. 613, 2001 SCC 20; United States of America v. Cobb, [2001] 1 S.C.R. 587,  2001 SCC 19; United States of America v. Shephard, [1977] 2 S.C.R. 1067; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Canada v. Iaquinto, [1991] O.J. No. 1263 (QL), leave to appeal refused, [1991] 3 S.C.R. viii; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; R. v. Vermette, [1988] 1 S.C.R. 985; R. v. Pearson, [1992] 3 S.C.R. 665; R. v. Morales, [1992] 3 S.C.R. 711; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Goltz, [1991] 3 S.C.R. 485; United States of America v. Houslander (1993), 13 O.R. (3d) 44; Palmer v. The Queen, [1980] 1 S.C.R. 759; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Stewart v. Canada (Minister of Justice) (1998), 131 C.C.C. (3d) 423; R. v. Stinchcombe, [1991] 3 S.C.R. 326.

Statutes and Regulations Cited

Act to amend the Extradition Act, S.C. 1992, c. 13, s. 2.

Canadian Charter of Rights and Freedoms , ss. 1 , 6 , 7 , 8 , 11 , 12 , 24 .

Extradition Act, R.S.C. 1985, c. E-23 [am. 1992, c. 13], ss. 2, 9, 13, 15, 18, 19, 19.2, 19.3, 19.4(2), 25(1), 25.1, 25.2.

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

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 17(4)(b).

Authors Cited

Canada.  House of Commons Debates, vol. IV, 3rd Sess., 34th Parl., November 7, 1991, pp. 4777-79.

La Forest, Anne Warner.  La Forest’s Extradition To and From Canada, 3rd ed.  Aurora, Ont.:  Canada Law Book Inc., 1991.

Roach, Kent.  Constitutional Remedies in Canada.  Aurora, Ont.:  Canada Law Book Inc., 1994 (loose-leaf updated November 2000, release 7).

APPEALS from a judgment of the Court of Appeal for Ontario (1998), 41 O.R. (3d) 131, 163 D.L.R. (4th) 128, 127 C.C.C. (3d) 353, 55 C.R.R. (2d) 172, 112 O.A.C. 312, dismissing the appellant’s application for judicial review and his appeal from a committal order for surrender.  Appeals dismissed.

Chris N. Buhr and Shayne G. Kert, for the appellant.

David Littlefield and Kevin Wilson, for the respondents.

The judgment of the Court was delivered by

Arbour J.  – 

I.  Introduction

1                                   This appeal was heard together with United States of America v. Cobb, [2001] 1 S.C.R. 587, 2001 SCC 19, United States of America v. Tsioubris, [2001] 1 S.C.R. 613, 2001 SCC 20, and United States of America v. Shulman, [2001] 1 S.C.R. 616, 2001 SCC 21, all released concurrently.  The appellant is a Canadian citizen resisting extradition to the United States of America on charges of conspiracy to traffic heroin. The related cases involve charges of fraud and conspiracy to commit fraud.  The four appeals raise issues relating to the scope of the Charter  jurisdiction of an extradition judge at the committal stage of extradition proceedings, pursuant to the 1992 amendments to the Extradition Act, R.S.C. 1985, c. E-23.  Specifically, this appeal raises three issues: (i) whether the right to remain in Canada under s. 6(1)  of the Canadian Charter of Rights and Freedoms  is engaged at the committal stage; (ii) the extent of a fugitive’s right to disclosure at that stage;  and (iii) whether the Minister of Justice breached the appellant’s Charter  rights by denying his request for additional disclosure and by ordering his surrender.

2                                   Relying on this Court’s decision in  United States of America v. Dynar, [1997] 2 S.C.R. 462,  the courts below narrowly construed the provision of the Extradition Act conferring Charter  jurisdiction on the extradition judge.  Both the extradition judge and the Court of Appeal for Ontario concluded that s. 6 was not engaged at the committal stage and denied the related additional disclosure which the appellant had sought.  The Court of Appeal further upheld the decision of the Minister of Justice to surrender the appellant to the Requesting State, underlining the degree of deference which must be afforded the ministerial decision.

3                                   For the reasons below, I also conclude that the appellant’s Charter  rights were not infringed and that the order of surrender must stand.

4                                   The Extradition Act was amended in 1992. The amendments did not alter the two-tiered structure of the extradition process in Canada.  The extradition judge and the Minister of Justice maintain their distinctive roles, the court deciding whether the Requesting State has made out a prima facie case to commit the fugitive, while the Minister makes the ultimate discretionary decision to surrender the fugitive.  Before 1992, the extradition judge had no jurisdiction to grant Charter  remedies. A judge sitting in habeas corpus review of the committal decision was the court of competent jurisdiction to hear Charter  arguments and grant a remedy under s. 24(1)  of the Charter .  Section 9(3) , added by An Act to amend the Extradition Act, S.C. 1992, c. 13, s. 2, effected a significant change in eliminating the habeas corpus stage of the extradition process, essentially collapsing that stage into the committal hearing.  Consequently, the extradition judge received some jurisdiction to deal with Charter  issues.

5                                   However, s. 9(3) did not give plenary and exclusive Charter  jurisdiction to the extradition judge.  The Minister of Justice retains jurisdiction on matters related to surrender, and must comply with the Charter  on all matters incidental to surrendering a fugitive.  The Minister’s decision is subject to judicial review by the court of appeal.  Thus, although the extradition judge can now grant a Charter  remedy, he or she can only do so on matters relevant at the committal stage.

6                                   Since mobility issues are only engaged at the time of surrender, these issues are properly considered at the ministerial stage of the extradition process.  Exceptionally, extradition judges retain a limited discretion to hear evidence relating to an alleged violation of s. 6  of the Charter  when it is efficient and expedient to do so, yet they cannot decide on the merits of the issue.  Alleged s. 6 violations are not relevant at the committal hearing. It is for the Minister to consider a fugitive’s mobility rights under s. 6, and an alleged violation of s. 6 cannot be remedied until the Minister has rendered a decision to surrender.   In the present case, in my view, the extradition judge was correct in declining to hear the appellant’s s. 6 arguments and the Court of Appeal was right in concluding that the Minister had not infringed the appellant’s mobility rights in ordering his surrender to the United States.

7                                   I also agree that no errors were made, either by the extradition judge or by the Minister, with respect to the disclosure requests made by the appellant.  I am therefore of the view that Mr. Kwok’s Charter  rights were not breached and his appeal must fail.

II.  Factual Background

8                                   The appellant, Paul Yick Wai Kwok, is a Canadian citizen whose extradition is sought by the respondent, the United States of America (the Requesting State), in connection with two drug trafficking charges.  Kwok is accused of supplying over 50 kilograms of heroin from Canada in several transactions between January 1990 and September 1995, to co-conspirators who distributed that heroin within the U.S.  Even when not supplying heroin, Kwok allegedly played a critical role, while in Canada, in bringing together customers and suppliers and received a share of the resulting profits. 

9                                   Intercepted telephone conversations involving various co-conspirators, including the appellant himself, constituted a significant portion of the American evidence.  Although this material was intercepted by the American authorities, the appellant was also the object of two Canadian authorizations to intercept private communications.  The Federal Bureau of Investigation sought and received information regarding Kwok from the Royal Canadian Mounted Police, who conducted regular surveillance of him from April 1993 to September 1995.  The RCMP volunteered additional information to the FBI about their ongoing investigation into the appellant’s activities.  On November 14, 1995, the Requesting State sought the appellant’s extradition after a New York grand jury indicted him, in October of that year, on charges of conspiracy to distribute and to possess with intent to distribute heroin, and on conspiracy to import heroin into the U.S. 

10                               Prior to the extradition hearing, the appellant requested complete disclosure of the RCMP investigation including the applicable authorizations to intercept private communications and affidavits used to obtain those authorizations.  American prosecutors refused to comply with the request, stating that they were not relying on the fruits of the Canadian investigation and did not intend to rely on this evidence in the future.  The evidence arising out of the U.S. investigation included approximately 1,000 tapes of intercepted communications obtained from three sources: (i) calls subpoenaed from U.S. penitentiaries where an alleged co-conspirator was incarcerated; (ii) calls intercepted from authorizations granted in New York and New Jersey from February to August of 1993; and (iii) tapes made by an American undercover officer who infiltrated the conspiracy by posing as a customer.

11                               Arguing that he could not make effective representations on his s. 6(1)  Charter  rights without access to the requested material, the appellant renewed his request before the extradition judge.  He demanded disclosure of (i) all of the Canadian investigation into his alleged involvement in the trafficking of narcotics; (ii) all discussions between Canadian police and American investigative authorities; and (iii) all discussions between Canadian police and both Canadian and American prosecuting authorities concerning the decision by which no proceedings were initiated against him in Canada, in order to allow an American prosecution to proceed.  The extradition judge dismissed the application, ruling that s. 6  Charter  rights were not engaged at the committal stage.  The appellant then conceded that the evidence submitted by the Crown, on behalf of the Requesting State, was sufficient to make out a prima facie case and that there was no dispute as to identity.  He was committed for surrender.

12                               The appellant subsequently reiterated his request for disclosure to the Minister of Justice, who refused it on the basis that the Crown’s prosecutorial discretion had been properly exercised in the decision not to proceed against him in Canada.  The Minister ordered the appellant’s immediate surrender on both drug trafficking charges. The Court of Appeal dismissed both Kwok’s appeal of the committal order by the extradition judge and his application for judicial review of the Minister’s decision to surrender him.  Kwok now appeals to this Court both decisions of the Court of Appeal.

III.  Relevant Statutory Provisions

13                               Canadian Charter of Rights and Freedoms 

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

                                                                   . . .

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

2. In this Act,

. . .

“judge” includes any person authorized to act judicially in extradition matters;

9. (1) All judges of the superior courts and of the county courts of a province, and all commissioners who are appointed for the purpose in a province by the Governor in Council, under the Great Seal, by virtue of this Part, are authorized to act judicially in extradition matters under this Part within the province, and each of those persons has for the purposes of this Part all the powers and jurisdiction of any judge or provincial court judge of the province.

(2) Nothing in this section shall be construed so as to confer on any judge any jurisdiction in habeas corpus matters.

(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.

13. The fugitive referred to in section 12 shall be brought before a judge, who shall, subject to this Part, hear the case, in the same manner, as nearly as may be, as if the fugitive was brought before a justice of the peace, charged with an indictable offence committed in Canada.

15. The judge shall receive, in the manner set out in section 14, any evidence tendered to show that the crime of which the fugitive is accused or alleged to have been convicted is an offence of a political character, or is, for any other reason, not an extradition crime, or that the proceedings are being taken with a view to prosecute or punish the fugitive for an offence of a political character.

18. (1) The judge shall issue a warrant for the committal of the fugitive to the nearest convenient prison, there to remain until surrendered to the foreign state, or discharged according to law,

(a) in the case of a fugitive alleged to have been convicted of an extradition crime, if such evidence is produced as would, according to the law of Canada, subject to this Part, prove that the fugitive was so convicted; and

(b) in the case of a fugitive accused of an extradition crime, if such evidence is produced as would, according to the law of Canada, subject to this Part, justify the committal of the fugitive for trial, if the crime had been committed in Canada.

                                                                   . . .

19. The judge who commits a fugitive to prison shall, on the committal,

(a) inform the fugitive that the fugitive will not be surrendered until after the expiration of thirty days and has a right to appeal the committal; and

(b) transmit to the Minister of Justice a certificate of the committal, with a copy of all the evidence taken before the judge not already so transmitted, and such report on the case as the judge thinks fit.

19.2  A fugitive may appeal a committal, or a foreign state that has made a requisition for surrender may appeal a discharge of a fugitive or a stay of any proceedings held pursuant to section 13, to the court of appeal of the province in which, as the case may be, the order of committal, the order discharging the fugitive or the order staying the proceedings was made . . . .

19.4 . . .

(2)  The hearing of an appeal from a decision with respect to the committal of a fugitive or any other appeal in a matter arising under this Act may be deferred by the court of appeal until the Minister of Justice makes a decision with respect to the surrender of the fugitive under section 25.

25. (1) Subject to this Part, the Minister of Justice, on the requisition of a foreign state, may, within a period of ninety days after the date of a fugitive’s committal for surrender, under the hand and seal of the Minister, order the fugitive to be surrendered to the person or persons who are, in the Minister’s opinion, duly authorized to receive the fugitive in the name and on behalf of the foreign state, and the fugitive shall be so surrendered accordingly.

                                                                   . . .

25.1 (1)  The Minister may, notwithstanding section 25, postpone the making of the order referred to in subsection 25(1) . . . .

(2)  Where the Minister has filed a notice of postponement with the court of appeal under paragraph (1)(b), that court shall not defer the hearing of the appeal under subsection 19.4(2).

25.2 (1) Notwithstanding the Federal Court Act, the court of appeal of the province in which the committal of a fugitive was ordered has exclusive original jurisdiction to hear and determine applications for judicial review under this Act, in accordance with subsections (2) to (10), made in respect of the decision of the Minister of Justice under section 25.

                                                                   . . .

(9)  Where an appeal under section 19.2, or any other appeal in respect of a matter arising under this Act, is pending, the court of appeal may join the hearing of that appeal with the hearing of an application for judicial review made under this section or otherwise.

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)

14                               On April 17, 1996, Madam Justice Wein rejected the appellant’s application for disclosure, stating that it

misconceives the “modest” function of the extradition judge and seeks to expand it unnecessarily.  An overall view of the complete extradition process, both judicial and executive, shows that Charter  considerations under section 6(1) are fully assessed in the process, both at the executive decision-making level and on the review by the Court of Appeal. 

15                               Wein J. concluded that any application under s. 6(1) was either premature or beyond the function of the extradition judge. She also declined to exercise any residual discretion she might have to order the requested disclosure. In her view, the s. 6 issue was not relevant to any argument to be made at the extradition hearing and could not assist in the determination of the issue of the sufficiency of evidence.  She found no basis upon which to order disclosure at the extradition hearing for the purpose of allowing the appellant to prepare his submissions to the Minister.

16                               Satisfied that the evidence met the requisite test for sufficiency, that there was no issue as to identification, and that the U.S. offences were virtually identical to Canadian offences thereby meeting the “double criminality” requirement of the Extradition Act , Wein J. ordered Kwok’s committal on May 16, 1996.

B. Minister of Justice

17                               On October 9, 1996, the Minister of Justice ordered the appellant’s immediate surrender to the United States to face trial in the State of New York.  The Minister pointed out that his surrender decision was political, not judicial, in nature.  Consequently, he was not obligated to provide the kind of disclosure or the procedural safeguards applicable to judicial proceedings.  He noted that the appellant had been provided with a summary of the factual information that was before him and had received an opportunity to comment on these materials.  The additional disclosures sought were not relied upon by the American authorities for purposes of their investigation, nor would the U.S. be relying on the Canadian wiretaps in their prosecution process.

18                               Further, the Minister considered the principles relating to the mobility rights guaranteed by s. 6  of the Charter  and came to the conclusion that surrendering the appellant would not be unconstitutional.  As the Attorney General of Canada was the competent prosecutorial authority, the Minister was satisfied that no charges would be laid in Canada and that this exercise of prosecutorial discretion was in accordance with the principles set out by this Court in United States of America v. Cotroni, [1989] 1 S.C.R. 1469.

C.  Court of Appeal for Ontario (1998), 41 O.R. (3d) 131

19                               The appellant argued on appeal that his request for disclosure should have been granted by the extradition judge or, alternatively, by the Minister, in order to permit a proper preparation of his application for a stay of the extradition proceedings.  That application alleged that his surrender to the United States would constitute a breach of his s. 6(1) mobility rights.  On August 4, 1998, the Court of Appeal dismissed both the application for judicial review of the surrender and the appeal against the committal order.

20                               Charron J.A., for a unanimous court, held that the extradition judge and the Minister were correct in denying the appellant’s request for additional disclosure.  The material he sought fell outside the scope of disclosure to which a fugitive was entitled in extradition proceedings.  In her view, s. 6(1) mobility rights are only engaged in the Minister’s decision to surrender, not at the committal stage of the extradition process.  She disagreed with the decision of the Quebec Court of Appeal 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, and applied Dynar, supra, a decision confirming, in her view, that the pre-amendment cases on the modest role of the judiciary in the extradition process were still applicable.  Thus, the appellant was entitled only to disclosure of the material on which the United States was relying to establish a prima facie case, which did not include any of the materials sought by the appellant.

21                               Furthermore, Charron J.A. found no reason to interfere with the Minister’s discretion to surrender the appellant.  In reference to Cotroni, she held, at p. 145, that

[i]t does not follow from Cotroni that, in the absence of positive evidence that prosecution in Canada is not “a realistic option” or that it would not be “equally effective”, a surrender is unconstitutional.

Stressing the discretion of prosecutorial authorities, Charron J.A. recalled that it operated in the context of Canada’s international obligations.

22                               The appellant also sought disclosure of information aimed at reviewing the prosecutorial discretion not to prosecute in Canada.  While such a decision may be open to judicial review on grounds of bad faith or improper motives, there must be an air of reality to the application.  In Charron J.A.’s view, this had not been shown.  She therefore concluded that the Minister had made no error in exercising his discretion to refuse the appellant’s request for further disclosure and that he did not err in his consideration of the appellant’s s. 6(1) rights.  The Minister’s reliance on the advice of his authorized representatives did not amount to an improper delegation of his duty. Nothing indicated that the appellant’s surrender would be unconstitutional.

V.  Analysis

23                               I propose to resolve the issues referred to in para. 1 of these reasons in three steps.  I will first analyse the impact of s. 9(3)  of the Extradition Act  on the Charter  jurisdiction of the extradition judge and delineate the boundaries of that jurisdiction.  Second, I will determine whether s. 6(1)  Charter  rights are engaged at the committal stage of the extradition process and I will review the Minister’s decision to surrender.  Finally, I will examine a fugitive’s disclosure rights within the extradition process with a view to determining whether the appellant ought to have received the additional disclosure that he sought throughout.

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

24                               As indicated earlier, this appeal requires an analysis of s. 9(3) of the 1992 amendments to the Extradition Act .  A completely revised Extradition Act  came subsequently into force on June 17, 1999.  The new Act contains a provision similar to s. 9(3) of the 1992 version.  Indeed, s. 25 of the 1999 Act is not materially different from s. 9(3); it merely lightens the language of the provision.  I will return below to the change of wording in the French version of s. 25 of the 1999 revision. Section 84 of the 1999 Act provides that the 1992 version still governs proceedings commenced prior to June 17, 1999.  Since that is the case here, I will refer to the 1992 Act throughout these reasons.  Given that, for all intents and purposes, the current s. 25 is identical to s. 9(3), clarifying the impact of s. 9(3) on the Charter  jurisdiction of the extradition judge remains a live issue, the resolution of which would be the same under either the 1992 or current version of the Act.

25                               The appellant argues that s. 9(3)  of the Extradition Act  gives the extradition judge complete jurisdiction on Charter  matters as they relate to extradition. He therefore maintains that the extradition hearing is the appropriate forum for the determination of all Charter  issues arising out of the extradition process.  The respondents take the position that s. 9(3)  has not expanded the role of the Charter  at the judicial phase of the extradition process.  Rather, the respondents submit that the extradition judge maintains the modest role of determining whether or not there is a prima facie case. 

26                               Much turns on the nature and scope of the extradition process before 1992, and the legislative intent behind the 1992 amendments to the Act.  With that in mind, I now turn to examine both these topics, as well as the judicial interpretation of s. 9(3).

(i)  Overview of the Extradition Process in Canada

27                               Extradition is primarily a function of the executive branch of government and a product of international agreements between States.  The extradition process in Canada is governed by the Extradition Act , which codifies into domestic law Canada’s international obligations to surrender fugitives who have committed crimes, or are alleged to have committed crimes, in other jurisdictions.  Section 13 of the Act sets out the manner in which extradition proceedings are to be conducted.  It involves a two-stage process: committal and surrender.  The first phase is judicial in nature while the second is essentially an executive phase.  I shall discuss each stage in turn.

28                               First, during a judicial hearing, the extradition judge, interchangeably called committal judge, determines whether there is sufficient evidence to order the fugitive committed for surrender (s. 18).  Two criteria must be met before a warrant of committal may issue: (1) the evidence presented must disclose a prima facie case that the conduct alleged to have occurred within the jurisdiction of the Requesting State constitutes a crime there, would constitute a crime in Canada if committed here, and is contemplated in the bilateral treaty (the “double criminality” rule); and (2) the evidence tendered in support of the request for extradition must, on a balance of probabilities, establish that the person for whom extradition is sought, is the person before the court (the identity issue). 

29                               At least prior to 1992, such was the extent of the jurisdiction of the  extradition or committal judge.  This first stage was often compared to a preliminary inquiry, where a justice of the peace, in deciding whether to commit an accused for trial, must determine whether there is evidence upon which a jury, acting reasonably and properly instructed, could convict the accused.  Like the justice of the peace presiding over the preliminary inquiry, the extradition judge had to refrain from weighing the evidence or assessing credibility: United States of America v. Shephard, [1977] 2 S.C.R. 1067.  Nor was it his or her function to consider how foreign officials gathered  the evidence, to weigh the effect of any delay on the trial in the Requesting State, or to consider defences that could be raised at trial: Argentina v. Mellino, [1987] 1 S.C.R. 536, at pp. 554-55.  The limited functions of the extradition judge were repeatedly confirmed and applied, inter alia, in Canada v. Schmidt, [1987] 1 S.C.R. 500; McVey v. United States of America, [1992] 3 S.C.R. 475; and United States of America v. Lépine, [1994] 1 S.C.R. 286.

30                               Prior to the 1992 amendments, the Charter  applied 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 had to conform to the requirements of the Charter . However, the extradition judge did not have the power to adjudicate on Charter  issues and to grant Charter  remedies. On that point, La Forest J. stated in Mellino, supra, at p. 557:

In the rare cases where the actions of Canadian executives or officials may give rise to the need for Charter  review, I do not think the extradition judge has Charter  jurisdiction.  For reasons of efficiency, the Act and the treaty have strictly confined his role.  Parliament has indicated how extradition proceedings are to be reviewed – by superior courts by means of the writ of habeas corpus.  A court in habeas corpus proceedings is ordinarily confined to questions of jurisdiction, but as such proceedings are contemplated by Parliament as the sole means of review in extradition proceedings, and from which, moreover, it has provided appeals to the Court of Appeal and to this Court, a court in habeas corpus proceedings is obviously the court of competent jurisdiction for the purposes of s. 24  of the Charter .  [Emphasis added.]

31                               In 1992, before the amendments, La Forest J. re-emphasized in McVey, supra, at p. 519, that extradition is primarily a function of the executive.  All functions within the extradition process that are not expressly assigned by statute to the extradition judge remain with the executive.

The treaties, sensitive to the liberty of the individual, contain provisions for their protection. Most important is the requirement that there be prima facie evidence that the act charged would constitute a crime in Canada. This specific matter, about which judges are most competent, is the task assigned to a judge by the Extradition Act . Other tasks, no doubt, may be assigned to extradition judges, but one must find a statutory source, and courts should not reach out to bring within their jurisdictional ambit matters that the Act has not assigned to them. Barring statutory provision, the task of dealing with international treaty obligations is for the political authorities, and is performed by the Ministers and departments in the course of fulfilling their appropriate mandates.

32                               Once the extradition judge decides that, under s. 13 of the Act, there is sufficient evidence to commit, he or she signs the warrant or order for committal which is forwarded to the Minister of Justice, along with the judge’s report: s. 19; Dynar, supra, at paras. 117-18.  This marks the passage to the second stage of the extradition process.  During this second step, the Minister decides whether the fugitive should be surrendered to the Requesting State.  This phase of the extradition process is essentially political in nature.  Cory J. discussed the specific nature of the Minister’s surrender decision in Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, at p. 659:

Parliament chose to give discretionary authority to the Minister of Justice.  It is the Minister who must consider the good faith and honour of this country in its relations with other states.  It is the Minister who has the expert knowledge of the political ramifications of an extradition decision.  In administrative law terms, the Minister’s review should be characterized as being at the extreme legislative end of the continuum of administrative decision‑making.

                                                                   . . .

It is correct that the Minister of Justice has the responsibility to ensure the prosecution of the extradition proceedings and that to do so the Minister must appoint agents to act in the interest of the requesting state.  However the decision to issue a warrant of surrender involves completely different considerations from those reached by a court in an extradition hearing.  The extradition hearing is clearly judicial in its nature while the actions of the Minister of Justice in considering whether to issue a warrant of surrender are primarily political in nature.

33                               The two stages of the extradition process are thus distinct and separate.  The extradition judge does not have the authority to order the actual surrender of the fugitive to the foreign State; that is the exclusive responsibility of the executive pursuant to s. 25.  This exclusive power was recognized in Schmidt, supra, at p. 514 (per La Forest J.), and Pacificador v. Philippines (Republic of) (1993), 83 C.C.C. (3d) 210 (Ont. C.A.), at p. 222 (per Doherty J.A.), leave to appeal refused, [1994] 1 S.C.R. x.  Conversely, the Minister cannot exercise the power to surrender a fugitive until he or she has been committed for that purpose by a judge.

34                               In the exercise of his or her executive discretion to surrender a fugitive, the Minister of Justice must give regard to Charter  considerations: Cotroni, supra; United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7.  I will return to Charter  considerations at the ministerial level later in these reasons.  The issue at this point is to determine the forum in which Charter  issues will be dealt with during the first judicial phase of extradition proceedings.

35                               Prior to the 1992 amendments, review of the committal decision was provided for in s. 19 (a) of the Extradition Act , which provided that the fugitive who had been ordered committed for surrender had a right to apply for a writ of habeas corpus.  In the same way, Charter  jurisdiction lay not with the extradition judge but with the superior court judge sitting on habeas corpus review of the extradition judge’s decision to commit: Mellino, supra, at p. 557.  The habeas corpus judge was required to determine whether the extradition judge had jurisdiction to commit the fugitive.  In determining the legality of the fugitive’s detention and/or committal, the habeas corpus judge had jurisdiction to grant remedies under s. 24  of the Charter : ibid.  In that decision, this Court determined that the extradition judge had no jurisdiction to determine whether there had been an unreasonable delay in requesting extradition, such as to constitute a violation of ss. 7  and 11  of the Charter .  That competence belonged to the habeas corpus judge. 

36                               In turn, this power of review by way of habeas corpus could not be used to pre-empt the ministerial decision whether to surrender, a subsequent stage of the extradition process.  La Forest J. recognized in Mellino, supra, at p. 558, that there did exist, even at the habeas corpus stage, an exceptional power, under s. 7  of the Charter , to stay extradition proceedings in circumstances where “the decision to surrender a fugitive for trial in a foreign country would in the particular circumstances violate the principles of fundamental justice”.  La Forest J. went on to say:

. . . 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.

Thus, barring obvious or urgent circumstances, a decision to stay the extradition process was only open to a judge of the Trial Division of the Federal Court, sitting in review of the Minister’s decision to surrender the fugitive (Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 17(4)(b) (now R.S.C. 1985, c. F-7, s. 17(5) (b))).  The need to await the exercise of executive discretion was stressed again in Schmidt, supra, at p. 522, per La Forest J.

37                               Hence, even within the broad habeas corpus jurisdiction as it existed prior to the 1992 amendments, both the committal proceedings, and judicial review of these proceedings, were curtailed by the existence of the second, executive stage of the extradition process, which had to be allowed to follow its course. This dual track of judicial and executive decision-making, each accompanied by its own review process, was cumbersome and time-consuming.  On the one hand, an appeal from the habeas corpus review of the committal decision could be taken as of right to the provincial court of appeal and, with subsequent leave, to this Court.  On the other hand, the separate Ministerial decision concerning surrender could be judicially reviewed in the Trial Division of the Federal Court, with further potential appeals to the Federal Court of Appeal and to this Court:  A. W. La Forest, La Forest’s Extradition To and From Canada (3rd ed. 1991), at pp. 179-220. 

(ii) Legislative Intent Underlying the 1992 Amendments

38                               Significant structural amendments to the Extradition Act  came into force on December 1, 1992.  The amendments now provide for a single right of review to the appropriate provincial court of appeal from both the decisions of the extradition judge and that of the Minister of Justice.  Not only does the court of appeal receive “exclusive original jurisdiction” to review the judicial decision to commit and the executive decision to surrender, but the amendments also contemplate a possible “merger” of these functions, by expressly allowing the court to defer the hearing of an appeal from a committal decision until the Minister has made a decision with respect to surrender (s. 19.4(2)), unless the Minister files a notice of postponement with the court of appeal, in which case the court of appeal must proceed with the appeal from committal rather than await the Minister’s decision on surrender (s. 25.1(2)).

39                               In addition, Parliament streamlined and simplified the extradition procedure by enacting s. 9(3), which essentially collapses into one the functions and powers previously exercised separately by the extradition judge and by the habeas corpus judge.  This was achieved first by modifying s. 19 to eliminate recourse to the writ of habeas corpus to review the committal and replace it simply with an appeal to the court of appeal.  Then, the powers of the committal judge were expanded to include all the powers that could previously be exercised only by a superior court judge sitting in habeas corpus review.  For the sake of convenience, I repeat here the wording of s. 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.  [Emphasis added.]

40                               In explaining the purpose of Bill C-31, then Minister of Justice, the Honourable Kim Campbell, dubbed the 1992 amendments “up-to-date, modern legislation taking into account the need to hear [Charter ] arguments in the court of first instance”: House of Commons Debates, vol. IV, 3rd Sess., 34th Parl., November 7, 1991, at p. 4779.

41                               In developing the amendments, the Minister of Justice stated in the House, at pp. 4777-78, that she was guided by three principles:

First, the appeal and review process of extradition matters should resemble as nearly as possible the remedies available to those charged with criminal offences in Canada. Second, the person whose extradition is sought should enjoy the protections of the Canadian Charter of Rights and Freedoms . Third, to the extent possible, duplication of proceedings should be avoided.

The appeal and review process should be expedient but permit a fair hearing. The division of functions between the judiciary and the minister must be clearly respected.  Our international obligations to our extradition treaty partners to return offenders must also be respected.

She further commented, at p. 4778:

[translation] [The pre-1992 law] results in needless duplication of administering evidence and wastes the courts’ time. This change [the 1992 amendments] would allow charter-based arguments concerning applications to be considered at a later stage of the proceedings, without having to go before a different judge.

Charter-based arguments relating to the minister’s extradition decision can be considered when the minister’s decision is reviewed.

42                               On one hand, the Minister referred to the desirability of providing Charter  protection to persons whose extradition is sought.   The appellant points to ss. 19.2 and 19.3 of the Act, which refer to the extradition judge having stayed the proceedings, as further indications that Parliament intended to confer on the extradition judge the authority for any and all Charter  adjudication. 

43                               On the other hand, while enacting s. 9(3), Parliament did not repeal s. 9(2), which provided that:

Nothing in this section shall be construed so as to confer on any judge any jurisdiction in habeas corpus matters.

This subsection disappeared in the 1999 amendments.  It is curious that the provision, which seemed to have been related to the abolished habeas corpus method of review, was left in place in 1992.  Be that as it may, I am of the view that when an extradition hearing is presided over by a superior court judge, that judge is empowered by s. 9(3) to grant any statutory, common law or Charter  remedies related to an issue that properly arises before him or her.  That power need not be exercised through a writ of habeas corpus.  In coming to this conclusion, I note that even the respondents do not contest that s. 9(3) took the Charter  jurisdiction formerly exercised by the habeas corpus judge and conferred it upon the extradition judge: see respondents’ factum, at para. 25.  Hence, even if we cannot speak of a collapsing of functions per se, there was undeniably a transfer of Charter  jurisdiction.  There is no indication, however, that Parliament intended to expand the Charter  jurisdiction of the extradition judge beyond that formerly exercised by the habeas corpus judge.

44                               The overall statutory framework does not reveal any intent to alter the respective tasks of the judiciary and the executive. The function of the committal judge is not expanded by the 1992 amendments beyond the acquisition of the powers of the habeas corpus judge. That function remains the determination of whether a prima facie case has been made out.  As the habeas corpus judge formerly could, the extradition judge can now grant appropriate Charter  remedies on matters relevant to the committal stage, provided that he or she does not usurp the Minister’s function.

(iii) Judicial Interpretation of Section 9(3)

45                               Our Court has directly considered the impact of s. 9(3) upon an extradition hearing in Dynar, supra.  In that case, the fugitive argued that he had received inadequate disclosure of the involvement of the Canadian investigating authorities in the gathering of the evidence that formed the basis of the committal order.  The Charter arguments he sought to raise were based on s. 7 (entrapment) and s. 8 (illegal wiretap).  This Court held that the affidavit evidence submitted by the United States contained sufficient information to conclude that the evidence was gathered entirely by American officials and that no justiciable Charter  argument arose. Cory and Iacobucci JJ. left the scope of the Charter  jurisdiction conferred upon the extradition judge under s. 9(3) open for another day, saying only that “[t]he extradition judge may also have limited Charter  jurisdiction under s. 9(3) of the amended Extradition Act ”: Dynar, at para. 121 (emphasis added).   They re-emphasized the limited role of the committal judge, stating the committal hearing is neither intended nor designed to provide the discovery function of a domestic preliminary inquiry.

46                               There have been conflicting interpretations of s. 9(3) in other courts. Some courts have held that extradition judges have jurisdiction to consider any application for Charter  relief, while others have concluded that the pre-amendment case law which narrowly limited the role of the extradition judge still applies.  I shall consider each position in turn, beginning with the narrow view.

47                               In Pacificador, supra, the committal judge refused to compel an RCMP officer to testify as to the circumstances under which, in the Philippines, he took certain statements which formed part of the documentary evidence used at the extradition hearing.  Watt J. ruled the evidence inadmissible since weighing evidence and assessing credibility were beyond the scope of his function as extradition judge.  The Ontario Court of Appeal upheld his decision, Doherty J.A. adding, at p. 218, that the discovery function at the judicial phase of the extradition process is limited:

Extradition is a creature of statute. The purpose underlying the judicial phase of the extradition process must be found in the Act. The sole purpose, as set out in section 18(1)(b) of the Act, is to determine whether the evidence adduced establishes a prima facie case against the fugitive: McVey. . . .   Nothing in the statute speaks to a discovery function akin to that played by the preliminary inquiry. 

Nor can that function be read into the Act. The extradition court cannot be concerned with the ultimate merits of the charge or the fairness of the adjudicative process to which the fugitive will be subject in the foreign court: United States of America v. Allard. . . .  Equally, the extradition court cannot oversee a discovery process relating to some potential future proceeding in a foreign country when that proceeding will be conducted according to foreign laws and possibly to different notions of concepts such as “full answer and defence”.

48                               In United States of America v. Leon, Ont. Ct. (Gen. Div.), April 7, 1994, unreported, aff’d (1995), 96 C.C.C. (3d) 568 (Ont. C.A.), aff’d [1996] 1 S.C.R. 888,  the fugitive sought a ruling that a search had been conducted in breach of his s. 8  Charter  rights and that the resulting evidence should be excluded from the extradition hearing.  Hayes J. assumed jurisdiction to consider a breach of s. 8 rights, and the resultant exclusionary remedy. However, he declined to consider allegations pertaining to breaches of ss. 6(1) and 7 on the basis that to do so would be premature as these issues could properly be put to the Minister in the context of his discretion to issue the order of surrender.  Hayes J. issued a warrant for committal.  The Court of Appeal for Ontario found it unnecessary to decide whether the committal judge had erred in entertaining the s. 8 application because it ultimately concluded that no Charter  infringement had been established.  Both the Court of Appeal and this Court affirmed the extradition and refrained from addressing the s. 6(1) issue.  According to this approach, the extradition judge could properly examine the admissibility of evidence under ss. 24(2)  and 8  of the Charter , assuming the issue was directly relevant to the judicial phase of the hearing.  However, the responsibility to consider s. 6(1) rights continues to reside with the Minister of Justice and not the extradition judge.

49                               The same was suggested in Swystun v. United States of America (1987), 40 C.C.C. (3d) 222 (Man. Q.B.) (although that decision dealt with a habeas corpus judge rather than a committal judge) and États-Unis d’Amérique v. Tavormina, [1996] R.J.Q. 693 (Sup. Ct.).  Recently, Bennett J. reached a similar conclusion in United States of America v. Cheema, [1999] B.C.J. No. 1365 (QL) (S.C.), holding, at paras. 79-80, that the extradition judge’s only “new” power involves search and seizure issues:

In my view, the amendments to the Extradition Act ,  including s. 9(3) , have not broadly expanded the Charter  jurisdiction of the extradition judge.  The role of the extradition judge has been reiterated in Dynar, in spite of the amendments.  The language in s. 9(3)  is clear.  The jurisdiction is limited to the “functions that that judge is required to perform in applying this Act”.  The extradition judge is to ensure that there is sufficient admissible evidence to put the fugitive on trial in the requesting country, that the crime is one that would be a crime in Canada, and [that] the fugitive will face a penalty [exceeding one year] if convicted. In the context of determining what evidence is admissible, s. 9(3)  gives the extradition judge jurisdiction to rule on the admissibility of evidence gathered in Canada and to ensure the gathering of such evidence meets the standard required by the Charter of Rights .

Therefore, the extradition judge may rule, for example, on search and seizure issues. This is an expansion of the jurisdiction previously held.

50                               In United States of America v. Garcia, [1994] O.J. No. 1027 (QL) (Gen. Div.), the fugitive requested a stay of proceedings based on the argument that his ss. 7 and 12 rights would be infringed if he were extradited to Florida, where he could face the death penalty if convicted of murder.  Jarvis J. concluded that s. 9(3) allowed him to consider an application for Charter  relief.  However, in refusing to accede to the fugitive’s application, Jarvis J. reasoned that, under the circumstances, no breach would occur until the Minister decided to extradite.  The fugitive’s request at the committal hearing was premature as Parliament had not enacted s. 9(3) to allow the extradition judge to decide ss. 7  and 12  Charter  breaches where such a decision would usurp the Minister’s responsibilities under s. 25 of the Act. 

51                               Still more courts have held this view of a narrow Charter  jurisdiction: United States of America v. Singh, [1994] O.J. No. 3941 (QL) (Gen. Div.) (per Ewaschuk J.); United States of America v. Palmer, Ont. Ct. (Gen. Div.), January 23, 1996, per Wein J., unreported; United States of America v. D’Agostino (1997), 41 C.R.R. (2d) 325 (Ont. Ct. (Gen. Div.)) (per Wilson J.); United States of America v. Shulman, [1995] O.J. No. 4497 (QL) (Gen. Div.) (per Lyon J.), aff’d (1998), 128 C.C.C. (3d) 475 (Ont. C.A.) (per Carthy, Doherty and Charron JJ.A.); United States of America v. Turenne (1998), 133 Man. R. (2d) 131 (Q.B.) (per Steel J.); Thailand v. Saxena, [1999] B.C.J. No. 981 (QL) (S.C.), and Thailand v. Saxena, [1999] B.C.J. No. 1364 (QL) (S.C.) (per Maczko J.). Both courts below in the present case opted for that approach.

52                               I turn now to the contrary opinion.  In United States of America v. Tilley (1996), 183 A.R. 158 (Q.B.), and United States of America v. Tilley, [1996] A.J. No. 718 (QL) (Q.B.), Veit J. held that the extradition court was the only proper forum in which to establish whether there had been a Charter  breach. She allowed the fugitive to call evidence to establish alleged breaches of his constitutional right not to be subjected to cruel and unusual punishment, even though the issue did not lead directly to excluding evidence from the committal hearing.  Baynton J. endorsed this reasoning in United States of America v. Kerslake (1996), 142 Sask. R. 112 (Q.B.).

53                               The Quebec Court of Appeal adopted the same view in Cazzetta, supra.  Chamberland J.A., for the court (Fish J.A. dissenting on other issues), expressly held that s. 9(3) conferred broad Charter  jurisdiction upon the extradition judge, who was competent to determine whether the fugitive’s rights under ss. 6 and 7 were violated as a result of the conduct of Canadian officials.  He stated, at p. 546:

[translation]  The extradition judge is now competent, therefore, to declare a principle of law incompatible with the Constitution Act, 1982  (section 52 ); he is also a court of competent jurisdiction to register a breach or denial of a Charter  right and to grant an appropriate remedy (section 24(1) ) or exclude evidence obtained in such conditions (section 24(2) ).

One must therefore be leery of the cases dealing with the jurisdiction of the extradition judge prior to the 1992 amendments. The addition of section 9(3) certainly marks the end of the analogy between the functions of the extradition judge and those of the judge presiding over a preliminary hearing, at least from the standpoint of jurisdiction to handle constitutional challenges.

For similar reasoning, see also Chan v. Direction de la Maison Tanguay, [1996] R.J.Q. 335 (Sup. Ct.) (per Béliveau J.); Langman v. États-Unis d’Amérique, Sup. Ct. Mtl., No. 500-36-000987-977, October 16, 1997, unreported; and Hong Kong v. Chan Chui-Mei, [1997] Q.J. No. 4066 (QL) (Sup. Ct.) (per Marx J.).

54                               In my view, the 1992 amendments did not confer unlimited Charter  jurisdiction on the extradition judge and therefore do not render obsolete all previous extradition case law.  Section 9(3) clearly confers Charter  jurisdiction upon the extradition judge insofar as the issues are specific to the functions of the extradition hearing, and to the extent that the Charter  remedies could have previously been granted by the habeas corpus judge. This is consistent with this Court’s decision in Dynar, supra, which confirmed that the limited role of the extradition judge had not been substantially modified by the 1992 amendments.  The added jurisdiction conferred upon the extradition judge must be understood in light of this governing principle.  Through s. 9(3), the extradition judge acquired the jurisdiction formerly reserved to the habeas corpus judge, and nothing else.

55                               The difference of opinion between the Quebec Court of Appeal in Cazzetta, supra, and the Ontario Court of Appeal in the present case may be due in part to subtle differences between the English and the French versions of s. 9(3), which I reproduce here together:

(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.

(3) Dans le cadre de la Loi constitutionnelle de 1982 , un juge de cour supérieure ou de cour de comté conserve les compétences qu’il a en cette qualité, dans l’exercice des fonctions qu’il est tenu d’accomplir en appliquant la présente loi.

56                               The English version appears to limit the Charter  competence to acts “with respect to the functions that that judge is required to perform”.  The French version, however, may suggest that the extradition judge has the extended Charter  competence he or she always has as a superior court judge, and that it exists alongside the performance of the judge’s duties under this Act.  Further amendments in 1999 have barely modified the English version of what was then s. 9(3). The French text, however, now reads as follows:

25.  Dans le cadre de la Loi constitutionnelle de 1982 , le juge dispose, dans l'exécution de ses fonctions d'application de la présente loi, des compétences d'un juge de la cour supérieure.

This change in syntax supports the conclusion that the limited view of Charter  jurisdiction was indeed the intended meaning of s. 9(3).  In light of the above, I am of the view that the decision of the Quebec Court of Appeal in Cazzetta was incorrect and should not be followed.

(iv)  Conclusion on Section 9(3)

57                               Given the legislative intent behind the 1992 amendments, the interpretation of s. 9(3) in the full context of the Act, in accordance with the principle of statutory construction endorsed by this Court in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, and the still relevant pre-existing case law, I conclude that the amendments were not meant to alter the fundamental two-tiered structure of the Act.  While s. 9(3) eliminates the habeas corpus stage, both the extradition judge and the Minister maintain their separate functions and jurisdictions within the process.  Section 9(3)  of the Extradition Act  does not confer an expanded Charter  jurisdiction upon the extradition judge.  It simply permits the extradition judge to exercise the jurisdiction previously reserved for the habeas corpus judge, which includes remedies for the Charter  breaches that pertain directly to the circumscribed issues relevant at the committal stage of the extradition process, and otherwise leaves the powers and functions of the committal court substantially unchanged.  Review of both the committal decision made by the extradition judge and the surrender decision made by the Minister within 90 days of the committal rests with the provincial court of appeal.  Both reviews can be combined in a single hearing in the court of appeal.

58                               Given my above conclusion, the outstanding issue to be determined is whether mobility rights as guaranteed by s. 6(1)  of the Charter  are engaged at the committal stage of the extradition process.  If so, constitutional issues related to s. 6(1) will fall within the province of the extradition judge.  If not, they will await consideration by the Minister, and under judicial review, by the Court of Appeal.

B.  Are Section 6(1) Charter Rights Engaged at the Extradition Hearing and/or

     Violated at the Ministerial Level?

59                                The appellant argues that the decision to commit has the immediate effect of depriving him of his freedom with a view to his surrender to a foreign country, thus implicating a broad array of Charter  rights, including the right to remain in Canada.  The respondents reiterate that s. 6 issues do not arise until the second stage of the extradition process, at the level of the ministerial decision whether to surrender, and of course, upon judicial review of that decision.  Under this heading, I begin by generally discussing mobility rights within the extradition process in order to specifically dispose of the appeal against committal and close by reviewing the Minister’s decision to surrender the appellant.

(i) Mobility Rights Within Extradition Proceedings

60                               Section 6(1)  of the Charter  guarantees a citizen the right to remain in Canada, subject to the limitations rendered permissible by s. 1.  In Cotroni, supra, the majority of this Court found extradition to be a reasonable limit to a Canadian citizen’s s. 6 rights.   Building on the premise that it was not irrational to surrender criminals to another country, even when they could be prosecuted for the same acts in Canada, La Forest J., for the majority, upheld the discretionary authority of the Attorney General of Canada or of a province, as the case may be, to decide whether or not to prosecute.  He wrote at pp. 1497-98:

The effective enforcement of criminal law would be impossible if someone were not vested with that discretion (see Smythe v. The Queen, [1971] S.C.R. 680, at p. 686), and this Court has on at least two occasions indicated that prosecutorial discretion is consistent with Charter  requirements of fundamental justice: see R. v. Lyons, [1987] 2 S.C.R. 309, at p. 348; R. v. Beare, [1988] 2 S.C.R. 387, at p. 411.  The same reasons underlie the necessity for permitting a discretion to decide whether a Canadian should be prosecuted in Canada or abroad.  Of course, the authorities must give due weight to the constitutional right of a citizen to remain in Canada.  They must in good faith direct their minds to whether prosecution would be equally effective in Canada, given the existing domestic laws and international cooperative arrangements.  They have an obligation flowing from s. 6(1) to assure themselves that prosecution in Canada is not a realistic option.  [Emphasis added.]

61                               Thus, a person whose extradition is sought from Canada can argue that, in the circumstances of his or her case, a surrender order would be an unjustified infringement of s. 6(1) if, for instance, an equally effective prospect of prosecuting in Canada had been unjustifiably and improperly abandoned.  This raises the question at the heart of this appeal as to the appropriate forum in which to have such allegations adjudicated.

62                               The Court of Appeal for Ontario, in Canada v. Iaquinto, [1991] O.J. No. 1263 (QL), leave to appeal to the Supreme Court of Canada denied, [1991] 3 S.C.R. viii, held that s. 6 arguments could not be entertained prior to the Minister’s decision on the surrender of the fugitive.  More precisely, the court held that s. 6 is not engaged by a decision of the Canadian prosecutorial authorities not to prosecute in Canada, nor is it engaged by the issuance of a warrant for committal.  Section 6 is engaged by the Minister’s surrender decision although a breach does not have to await the actual surrender.  In light of this, the court added that it was premature to raise the issue before the extradition judge since it could not be assumed that the Minister would ignore any Charter  rights arising in an individual case.

63                               In Idziak, supra, at pp. 658-60, Cory J. restated that the decision to issue an order of surrender involves completely different considerations from those examined by a court in issuing a warrant of committal.  The political and/or diplomatic nature of the surrender decision requires that it be ordinarily made in the first instance by the Minister.  He confirmed that neither the decision from Canadian prosecutorial authorities to forego prosecution nor the extradition judge’s warrant for committal implicate s. 6 rights.  All that is decided by the extradition judge is the sufficiency of the prima facie evidence that the conduct disclosed would be a crime in Canada and that the person whose extradition is sought is the fugitive before the court.  The fugitive is not prevented from remaining in Canada as a result of these steps. It is thus the Minister’s decision to surrender that creates the s. 6 issue.

64                               This conclusion was reiterated in United States of America v. Whitley, [1996] 1 S.C.R. 467, when this Court endorsed in a brief oral judgment the view expressed by the Court of Appeal for Ontario ((1994), 94 C.C.C. (3d) 99) that s. 6 issues were the Minister’s responsibility at the executive phase of the extradition process.  In the words of Laskin J.A., at pp. 116-17:

The Minister’s reasons indicate that he applied the correct legal principles and that he expressly took into account several of the factors referred to in Cotroni and in art. 17 bis of the Treaty. . . . The Minister is charged with the responsibility of weighing these factors and ultimately deciding whether prosecution in Canada would be equally effective.

65                               In the context of this appeal, even if s. 6 rights do not arise at the committal level, the appellant maintains that a breach may be inevitable and should be dealt with by the extradition judge.  Similarly, threats to a person’s security or life need to be addressed preventively by the courts.

66                               Remedial action by the courts for future violations is not precluded as a matter of law despite the use of a past tense in the language of s. 24(1).  In Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, this Court suggested that a remedy under s. 24(1) could be granted not only in the case of an actual interference with Charter  rights but also to prevent probable future harms when an applicant can establish an apprehension of such interference at a future trial. R. v. Vermette, [1988] 1 S.C.R. 985, confirmed, at p. 992, that Charter  remedies may be available in cases where an applicant can establish the threat of a future violation. 

67                               However, as professor Kent Roach remarks, “[t]he appropriateness of remedies to prevent Charter  violations will depend, in part, on the Charter  right that is threatened”: Constitutional Remedies in Canada (loose-leaf ed.), at p. 5-34.2.  Not allowing anticipatory s. 6 arguments to be made at the committal level is simply letting the legislated process take its course and giving effect to this Court’s instruction in Mellino, supra, and Schmidt, supra, that a committal judge ought not to pre-empt the Minister’s decision.  Judicial review of the Minister’s surrender order provides for a timely, effective and complete Charter  remedy for any s. 6 infringement that may have occurred in the extradition process.

68                               The appellant advances additional arguments to support his claim that s. 6(1)  of the Charter  is relevant at the committal hearing and is consequently part of the expanded jurisdiction conferred upon the extradition judge by s. 9(3) of the Act.  He relies on Cotroni, supra, as confirming the jurisdiction of the extradition judge over alleged violations of s. 6  of the Charter .  Cotroni was an appeal from a habeas corpus hearing which actually decided the s. 6 issue; the appellant submits that the decision implicitly confirms the habeas corpus Charter jurisdiction over mobility rights issues, which was transferred to the extradition judge by virtue of s. 9(3). 

69                               The jurisdictional issue was not raised in Cotroni. The Court was not asked to address the question of which specific decision-maker, between the extradition judge and the Minister,  is responsible for s. 6 issues, and the case did not deal with the procedural issues involved in extradition.  Cotroni does not assist the appellant on this point.

70                               The appellant also submits that a fugitive ought to be permitted to assert his constitutional rights at the earliest possible stage of the extradition process, particularly since the fugitive is subject to ongoing legal proceedings and possibly to incarceration.  Thus it is argued that even though the ultimate violation of s. 6 occurs at the surrender stage, the fugitive has a real interest in not having to await the Minister’s decision before vindicating his Charter  interests. 

71                               This argument is not persuasive. The process of interim release and detention under the Extradition Act  incorporates by reference the Criminal Code  provisions which apply to the pre-trial release and detention of an accused charged with a criminal offence in Canada. While interim detention may be subject to Charter  scrutiny, for example on the basis of an alleged violation of s. 9  (as in R. v. Pearson, [1992] 3 S.C.R. 665, and R. v. Morales, [1992] 3 S.C.R. 711), and while any such avenues of redress may be available under the Extradition Act , none of those concerns engage s. 6(1) since, as mentioned earlier, although remedies for anticipatory Charter  breaches can be granted, there is no reason here to pre-empt the Minister’s decision and the subsequent judicial review which can address any remaining Charter  concern.

72                               The appellant also submits that the Charter  arguments he sought to raise can only be effectively considered by a court of competent jurisdiction when inscribed within a factual context.  In Cazzetta, supra, Chamberland J.A. preferred to see all Charter  arguments fleshed out before the extradition judge, where they could be assessed within the full factual context.  Evidence may need to be evaluated, and witnesses may need to be examined and cross-examined in support of, and in response to the Charter  claim. It is argued that neither the Minister’s administrative process nor the court of appeal is a suitable venue for the presentation and the evaluation of such evidence.  Rather, the most suitable forum for the compilation of an evidentiary record is the committal court.

73                               While I agree that a proper evidentiary basis is required for Charter  adjudication (see R. v. Mills, [1999] 3 S.C.R. 668, and R. v. Goltz, [1991] 3 S.C.R. 485), the issue is not whether it is more suitable to hear the evidence at the committal stage, but whether it is necessary to do so given that the s. 6 issue is substantively premature.  Because extradition hearings are not intended to be trials or even trial-like, as this Court has recognized in Schmidt, supra, at pp. 515-16, they do not have to serve as the forum in which to generate the fullest factual record on all constitutional matters that may relate to the extradition process.

74                               If s. 6 issues are premature at the committal stage, it would follow that evidence dealing with an alleged s. 6 breach would be irrelevant and therefore inadmissible at the committal hearing.  However, on efficiency grounds, it has been recognized that extradition judges could have the discretion to hear, without deciding, evidence on alleged s. 6  Charter  violations when the allegations hold an air of reality: Whitley, supra, and Pacificador, supra. This may indeed be an appropriate course of action, for instance when the issues relevant to the committal are intertwined with the factual basis upon which the Charter  challenge will subsequently be based, or when the same witnesses may conveniently be heard on both issues, but I stress that this is entirely within the discretion of the extradition judge. As the Minister may decline to surrender the fugitive committed for extradition, efficiency may equally dictate waiting for the Minister’s decision before arguing Charter  remedies, particularly if it calls for an evidentiary foundation unrelated to that presented in relation to the committal.   This concern was well expressed by Blair J. in United States of America v. Houslander (1993), 13 O.R. (3d) 44 (Gen. Div.), at p. 51:

“Building a case for another purpose” is not consistent with the nature of the extradition hearing, which is designed to provide a summary and expeditious determination as to whether there is sufficient evidence to commit the fugitive for surrender.

75                               Although I would not oust altogether the discretion of the extradition judge to receive evidence related solely to s. 6  Charter  issues, he or she should keep in mind the need for an expeditious disposition of the committal issues, the danger of confusion that may arise if irrelevant evidence is received, and the waste that will result if the Minister ultimately declines to surrender.

76                               While a committal hearing may be a suitable forum in which to compile a factual record to deal with some Charter  issues, the factual record may be developed or supplemented at subsequent levels, when the issues actually arise.  As the Court of Appeal for Ontario stressed in Whitley, supra, there is nothing to prevent the Minister from conducting a hearing or permitting evidence to be submitted in writing for the purpose of deciding whether to surrender the fugitive.

77                               The court of appeal may also be the appropriate forum in which evidence relevant to an alleged Charter  violation can be adduced.  Of course, courts of appeal are rarely the original jurisdiction in which Charter  remedies can be obtained and are also rarely required, in the discharge of their judicial functions, to hear evidence and decide factual issues as a forum of first instance.  However, realistically, under the current extradition structure, it may often be the only appropriate judicial forum, particularly if the extradition judge and the Minister both declined to exercise their discretion to receive such evidence.

78                               The intent of the amendments to the Extradition Act  was to streamline the extradition process and, while maintaining the two-tiered system described above, to consolidate the multiplicity of judicial proceedings that could otherwise be launched to review that process.  Indeed, since 1992, the Extradition Act  permits the consolidation of the appeal from the committal decision of the extradition judge and the judicial review of the surrender decision of the Minister: ss. 19.2, 19.4(2) and 25.2(9).  This streamlining vests an original Charter  jurisdiction in provincial appellate courts and enables those courts to receive an adequate evidentiary record of the kind usually compiled in trial or pre-trial courts.

79                               If the proper factual basis upon which the Charter  issues engaged in the surrender phase of the process has not yet been constructed, the court of appeal will have to receive such evidence in whatever form it deems appropriate.  Since the court of appeal is the competent judicial forum of original jurisdiction under the Act to receive such evidence, its admissibility would obviously not be subject to the Palmer test governing the admissibility of fresh evidence on appeal: Palmer v. The Queen, [1980] 1 S.C.R. 759.

80                               On a related point, relying on the Quebec Court of Appeal’s reasoning in Cazzetta, and on United States of America v. Burns (1997), 116 C.C.C. (3d) 524 (B.C.C.A.), the appellant further argues that the Minister is not a “court of competent jurisdiction”, empowered by the Charter  to grant constitutional remedies. This is undeniable. The Minister is required to respect a fugitive’s constitutional rights in deciding whether to exercise his or her discretion to surrender the fugitive to the Requesting State.  But the Minister cannot decide whether a Charter  breach has occurred and, if so, grant the fugitive an appropriate remedy.  That function is judicial, not ministerial.

81                               In the event that the ministerial decision were to violate the fugitive’s Charter  rights, under the current structure of the Extradition Act , the “court of competent jurisdiction” to address the s. 6 issues is the provincial court of appeal which reviews the Minister’s decision, possibly in conjunction with the appeal, if any, from the committal decision.  As I have discussed above, that court is fully empowered to grant Charter  remedies and to receive evidence to assist it in its assessment of s. 6, or any other Charter  issues.

82                               Finally, the appellant points to the Cazzetta line of judicial authority as ensuring that s. 6 does not receive a special, less favourable procedural treatment, distinct from other Charter  provisions.  The appellant urges this interpretation upon the Court, arguing that neither s. 9(3) nor any other section in the Act indicates that s. 6 mobility rights should be treated differently than any other right under the Charter , and that to exclude mobility rights from the jurisdiction of the extradition judge would establish a hierarchy of rights contrary to the principle established in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 877.

83                               This argument is misguided.  As discussed earlier, remedial action may be sought under the Charter  for a future harm that, though likely to occur, actually has yet to materialize.  Nevertheless, as a basic premise, remedies must generally await infringement.  The fact that the decision to surrender is an executive one, rather than a judicial decision, does not exempt that decision from Charter  compliance, and an effective remedy exists, should there be any Charter  violation in any part of the extradition process, in the form of the joint appeal and judicial review in the court of appeal.      

84                               In short, evidence that relates to matters falling outside the ambit of the extradition judge’s jurisdiction, such as ss. 6 or 12 issues, can be presented in one of three ways: (i) the extradition judge has the discretion to hear all or some of the evidence, on grounds of expediency, and thereby put the issues on the record without deciding on the alleged Charter  breach; (ii) the Minister can receive affidavit evidence and/or call a discretionary hearing; and (iii) the provincial court of appeal may receive such evidence when it judicially reviews the Minister’s decision on surrender.

(ii) Conclusion on the Appeal Against Committal

85                               This Court’s decision in Dynar, which  held that the pre-amendment cases on the limited role of the judiciary in extradition proceedings are still applicable, is dispositive of the appeal against committal.   I find that s. 9(3) empowers the extradition judge to grant remedies for Charter  violations, including, where appropriate, a stay of proceedings, but only insofar as the Charter  breaches pertain directly to the circumscribed issues relevant at the committal stage of the extradition process.  Extradition judges should not pre-empt the executive with respect to those issues which fall under the Minister’s responsibility under the Act.  In this light, while the surrender-related ss. 6 and 12 issues must be first determined by the Minister, allegations of violations of other Charter  rights are properly dealt with by the extradition judge, for example when the Charter  infringements are related to the fair process of the extradition hearing itself.

86                               This Court’s decision in Cobb, supra, released concurrently, illustrates the extradition court’s competence to grant the Charter  remedy deemed just and appropriate in circumstances where the fairness of the extradition hearing itself is compromised through the actions of the Requesting State.

87                               In contrast, in the present case, the Court of Appeal for Ontario did not err in confirming the decision of the extradition judge that the appellant’s s. 6 rights were not engaged at the committal stage and that the extradition judge had no jurisdiction to grant Charter  remedies with respect to alleged violations of s. 6.

(iii)  Judicial Review of the Minister’s Decision to Surrender

88                               I now turn to the appeal against surrender.  The appellant submits that the second phase of the extradition process violated his s. 6(1)  Charter  rights as prosecution in Canada for the alleged crime was a realistic option or would be equally effective.  The appellant attacks the Minister’s decision on two grounds.  First, he contends that the Minister improperly delegated to his subordinates the decision of whether prosecution in Canada would be as effective as an American prosecution and, in doing so, infringed his s. 6  Charter  rights.  Second, the appellant contends that there is no evidence that a prosecution in Canada would not be “equally effective”.  The respondents argue that both the decision not to prosecute and the decision to surrender the fugitive are within the discretion of the Minister, subject to judicial review.  Without at least an air of reality to the allegations of ministerial bad faith or impropriety, a fugitive should not be allowed to go beyond the exercise of prosecutorial discretion. 

89                               I find no merit in the claim of improper delegation.  The Minister can reach a conclusion as to whether or not a fugitive could be effectively prosecuted in Canada by relying on an evaluation presented to him or her by responsible Department officials, after having considered the appropriate principles and Canada’s international obligations. Receiving assistance from local prosecutors in determining the feasibility of a Canadian prosecution does not displace the Minister’s discretion or his or her ability to render a decision.

90                               On the second argument as to the Minister’s proper consideration of the Cotroni test, I agree with Charron J.A. that “[i]t does not  follow from Cotroni that, in the absence of positive evidence that prosecution in Canada is not ‘a realistic option’ or that it would not be ‘equally effective’, a surrender is unconstitutional.”  The efficacy of a prosecution goes beyond simply determining whether it has any chance of resulting in a conviction.  It requires an assessment, in the public interest, of all the costs and risks involved, including delay, inconvenience to witnesses and applicable rules.

91                               In considering the efficacy of a domestic prosecution and its desirability, the Minister remains mindful of Canada’s international obligations.  The Minister may decide to yield to the superior interest of the Requesting State, even in a case where some form of prosecution in Canada is not materially impossible or totally unlikely to succeed.  The Minister must consider whether the fugitive’s right to remain in Canada may be accommodated by a domestic prosecution that would justify denying the legitimate request of one of Canada’s extradition partners.

92                               In addition, the inquiry as to whether a prosecution in Canada is a realistic option is simply one factor that must be considered in the exercise of the Minister’s broad discretion.  In Cotroni, supra, La Forest J. declined to elevate that factor to a determinative constitutional requirement. Rather he wrote, at p. 1494:

A general exception for a Canadian citizen who could be charged in Canada would, in my view, interfere unduly with the objectives of the system of extradition. . . . [T]o require judicial examination of each individual case to see which could more effectively and fairly be tried in one country or the other would pose an impossible task and seriously interfere with the workings of the system.

93                               The Minister’s decision with respect to the appropriateness of domestic prosecution attracts a high degree of deference: Burns, supra, Idziak, supra, Whitley, supra, and Schmidt, supra; Gwynne v. Canada (Minister of Justice) (1998), 103 B.C.A.C. 1, leave to appeal to Supreme Court of Canada denied, [1998] 1 S.C.R. ix, and R. v. Power, [1994] 1 S.C.R. 601.  In the present case, the Minister provided reasons which demonstrate that he considered the appellant’s mobility rights but concluded that prosecution in Canada would not be as effective in view of the fact that the United States had a greater interest in the prosecution since most of the alleged activities were committed there.   It is not at all improper, and indeed it is to be expected, that the Minister will not only consider the possibility of prosecution in Canada, but also the interest of the foreign State in prosecuting the fugitive on its own territory.

94                               While prosecutorial discretion is at the heart of the ministerial function and attracts a high standard of deference on judicial review, much less deference is due on the issue of whether the Minister properly considered the fugitive’s constitutional rights, including s. 6  of the Charter  (see Stewart v. Canada (Minister of Justice) (1998), 131 C.C.C. (3d) 423 (B.C.C.A.), at pp. 432-33). 

95                               In my opinion, the Minister’s decision to surrender in this case was clearly reasonable in view of the following factors: (a) the co-operating witnesses were in the United States; (b) most, if not all of the evidence was in that country; (c) the heroin was imported into and distributed in the United States, and (d) the FBI played the major role in the investigation with minimal assistance from the RCMP.  The fact that the appellant’s activities were also the subject of a Canadian investigation is, in the circumstances of this case, of little significance.  I find no error in the conclusions reached by the Court of Appeal, at p. 147:

Nor did [the Minister] err in his consideration of Kwok’s s. 6(1) rights. He considered relevant principles in accordance with correct principles of law.  The Minister’s reliance on the advice of his authorized representatives did not amount to an improper delegation of his duty.  His reasons make it clear that he understood that it was his role to ensure that the surrender of Mr. Kwok would be in accordance with the Charter .  On the facts of this case, there was nothing to indicate that Kwok’s surrender would be unconstitutional.

96                               There is no evidence in this case of improper conduct, arbitrary motives or bad faith in the Minister’s decision to surrender the appellant to the Requesting State.  Consequently, the decision will stand.

C.  Disclosure Rights in the Extradition Process

97                               Throughout the process of his extradition, the appellant has sought disclosure of additional materials with a view to establishing unjustified violations of his Charter  rights.  More specifically, the appellant demanded disclosure of (i) all of the Canadian investigation into his alleged involvement in the trafficking of narcotics; (ii) all discussions between Canadian police and American investigative authorities; and (iii) all discussions between Canadian police and both Canadian and American prosecuting authorities concerning the decision to proceed in the United States rather than in Canada. The appellant argues that the rationale in R. v. Stinchcombe, [1991] 3 S.C.R. 326, imposes on both the Requesting and Requested States an obligation to disclose all relevant information as early as during the judicial extradition hearing.  He submits that the refusal by the extradition judge to order disclosure of such material effectively denied him an opportunity to assess whether his s. 6 rights were infringed, thus precluding any court from determining that issue. 

98                               In my view, the decision of this Court in Dynar, supra, is dispositive of the appellant’s claim for disclosure in this case.

99                               Stinchcombe, supra, dealt with disclosure in a criminal trial context where the right to make full answer and defence is directly engaged on issues of guilt or innocence.  Extradition proceedings are not concerned with issues of guilt or innocence.  Rather, they are in some ways akin to preliminary inquiries.  However, as pointed out by Cory and Iacobucci JJ. in Dynar, supra, at paras. 132-33:

The committal hearing is neither intended nor designed to provide the discovery function of a domestic preliminary inquiry. See Philippines (Republic) v. Pacificador [cite omitted]. Specifically, disclosure of the relationship between United States and Canadian authorities in an investigation is not a requirement imposed on the Requesting State under either the Act or the treaty.

. . . Any requirement for disclosure that is read into the Act as a matter of fundamental justice under s. 7  of the Charter  will therefore necessarily be constrained by the limited function of the extradition judge under the Act, and by the need to avoid imposing Canadian notions of procedural fairness on foreign authorities. 

100                           The extradition judge may only order the production of materials relevant to the issues properly raised at the committal stage of the process, subject to his or her discretion to expand the scope of that hearing to allow the parties to establish the factual basis for a subsequent Charter  challenge, when it is expedient to do so, including, obviously, when there is at least an air of reality to the Charter  claims (Dynar, supra, per Cory and Iacobucci JJ., at para. 141).  Requests for disclosure of materials related to issues which properly belong to the executive phase of extradition, and to the judicial review thereof, have no independent relevance before the extradition judge and are subsumed in his or her discretion to hear evidence related to such issues. 

101                           In this case, the appellant was entitled to know the case against him, including the materials upon which the United States relied upon to establish a prima facie case.  Since the Requesting State was not relying upon materials in the possession of Canadian authorities, and in the absence of any indication of bad faith or improper motives on the part of prosecuting authorities, there was no obligation to provide further disclosure of materials requested.

102                           The substance of the discussions between the U.S. and Canada regarding a decision to prosecute may have been relevant, at most, to a possible future breach of s. 6; a breach that would occur, if at all, at the surrender stage of the process. As I indicated earlier in these reasons, I would not preclude altogether the exercise of a residual discretion of the part of the extradition judge to allow evidence on some of these issues in a proper case, and to order disclosure accordingly. That discretion would only be exercised for reasons of convenience, in an effort to expedite further the full disposition of the issues. There was no need to resort to it in the present case.

103                           The appellant also submits that the Court of Appeal erred in finding that the Minister was correct in denying his request for additional disclosure.  At the stage of the surrender decision by the Minister, s. 6 interests are engaged and the fugitive is entitled to submit materials in support of any issue relevant to the Minister’s decision, including materials supporting any constitutional claim.  In the absence of disclosure, the appellant argues that he was denied the ability to make effective s. 6 representations at this crucial stage.

104                           The Minister has a duty of fairness to ensure that the fugitive has adequate disclosure of the case against him or her and a reasonable opportunity to state his or her own case.  To this end, the Minister may hold an evidentiary hearing but is not required to do so.

105                           In Whitley, supra, the fugitive was seeking disclosure of materials similar to the information sought by the appellant, and essentially for the same purpose. Specifically, Mr. Whitley sought (at p. 112 C.C.C.):

(i)        the information in the police files in Hamilton pertaining to the Canadian charge against the appellant [Whitley];

(ii)        information concerning the plea and sentencing arrangements for the appellant’s co-conspirators;

(iii)       documents and notes on the decision to prefer a foreign prosecution to a domestic one.

In addition, he requested various internal ministerial briefs and documents relating to the Minister’s decision to extradite.  Noting that the fugitive’s request for additional disclosure was aimed at exploring s. 6(1)  Charter  issues, Laskin J.A., and ultimately this Court, held that such material did not have to be disclosed, even at the executive phase. 

106                           Only where a justiciable Charter  issue can arise from the potential involvement of the Canadian authorities in the gathering of evidence is it necessary to consider the degree of disclosure that might be required of the Requested State: Dynar, supra.  In Dynar, the fugitive was not entitled to further disclosure from the Canadian authorities because no justiciable Charter  issue arose.  Canadian authorities had not provided any assistance to the Americans in gathering evidence and, in any event, the latter were not relying on anything but their own evidence.  Considering the breadth of the prosecutorial discretion involved in extradition cases, and absent any air of reality to any suggestion of impropriety or bias on the part of prosecutorial authorities, the disclosure requests made by the appellant to the Minister did not bear on issues sufficiently relevant to the surrender decision, or to the constitutional rights of the appellant in that process, to require compulsory disclosure. 

107                           Although the Minister is the one originally required to determine the fugitive’s entitlement to disclosure at the surrender stage, that decision is subject to judicial review and the court of appeal, seized as it was here with that review combined with the appeal from the committal decision, is in the best position to evaluate the relevance of the materials sought, and to enforce the appellant’s Charter  rights in a judicial manner, as required by law.

108                           In this case, I agree with the Court of Appeal that the materials sought by appellant were not relevant  either on appeal from the judicial decision to commit,  or on judicial review of the executive decision to surrender.  There is nothing to suggest that the Minister failed to consider the Cotroni factors or the fugitive’s constitutional rights.  Nor is there any indication that the Minister based his decisions not to prosecute domestically and to surrender the fugitive for extradition on improper motives.

109                           Bearing in mind the expedient and summary nature of the committal hearing, the discretion that attaches to the Minister’s decision to surrender and the nature of extradition proceedings generally, the appellant received adequate disclosure at all stages of the extradition process.

VI.  Conclusions and Disposition

110                           The Court of Appeal for Ontario did not err in finding that considerations to mobility rights under s. 6(1)  of the Charter  are not engaged at the committal stage of extradition proceedings,  are only engaged at the time of the decision of the Minister of Justice to surrender the fugitive and are thus beyond the jurisdiction of the extradition judge.  It also did not err in finding that the Minister of Justice did not breach the appellant’s mobility rights under s. 6(1)  of the Charter  by ordering his surrender.  In light of these findings, the Court of Appeal was correct in denying the appellant’s request for additional disclosure at both the committal and surrender levels.

111                           Accordingly, I would dismiss both the appeal against committal and the appeal against the judicial review of the surrender order. 

Appeals dismissed.

Solicitors for the appellant:  Buhr & Kert, Toronto.

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