United States of America v. Kwok

United States of America v. Kwok
Collection
Supreme Court Judgments
Date
2001-04-05
Neutral citation
2001 SCC 18
Report
[2001] 1 SCR 532
Case number
26919
Judges
McLachlin, Beverley; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 26919
Decision Content
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