United States of America v. Dynar

United States of America v. Dynar
Collection
Supreme Court Judgments
Date
1997-06-26
Report
[1997] 2 SCR 462
Case number
24997
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 24997
Decision Content
United States of America v. Dynar, [1997] 2 S.C.R. 462
United States of America and the Honourable
Allan Rock, Minister of Justice for Canada Appellants
v.
Arye Dynar Respondent
Indexed as: United States of America v. Dynar
File No.: 24997.
1997: January 28; 1997: June 26.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Extradition ‑‑ Offences ‑‑ Money laundering ‑‑ Attempt ‑‑ Conspiracy ‑‑ Fugitive charged in U.S. with attempting to launder money and conspiracy to launder money ‑‑ Whether fugitive’s conduct would have amounted to offence under Canadian law if it had occurred in Canada ‑‑ Whether conduct would have amounted to criminal attempt or criminal conspiracy under Canadian law ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 24(1) , 462.31(1) , 465(1) (c) ‑‑ Narcotic Control Act, R.S.C., 1985, c. N‑1, s. 19.2(1).
Criminal law ‑‑ Attempt ‑‑ Conspiracy ‑‑ Whether impossibility constitutes defence to charge of attempt or conspiracy under Canadian law ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 24(1) , 465(1) (c).
Extradition ‑‑ Hearing ‑‑ Right to a fair hearing ‑‑ Disclosure ‑‑ Applicable procedural safeguards at extradition hearing.
The U.S. government requested the extradition of D, a Canadian citizen who had been the subject of a failed “sting” operation by the FBI. D had placed a telephone call from Canada to a former associate who was living in Nevada and who had become a confidential informant working for an FBI agent. D had been the subject of investigations in the U.S. into the laundering of substantial amounts of money originating in Nevada. The FBI agent had the informant introduce to D a second confidential informant, who was instructed to ask if D would be willing to launder large sums obtained as a result of illegal trafficking. When asked, D agreed with alacrity. Numerous conversations between the two men were recorded over the course of some months. It was eventually arranged that an associate of D would go to the U.S. to pick up some money to be laundered, but the FBI aborted the operation just prior to the transfer. D was charged in the U.S. with attempting to launder money and conspiracy to launder money. Following a hearing under the Extradition Act, he was committed for extradition. He complained to the Minister of Justice of the lack of disclosure of the Canadian involvement in the investigation, but the Minister refused D’s request to re‑open the extradition hearing, and ordered his surrender for prosecution in the U.S. The Court of Appeal allowed D’s appeal from the committal decision and granted his application for judicial review of the Minister’s decision to order his surrender. The major issue raised in this appeal is whether D’s conduct would have amounted to an offence under Canadian law if it had occurred in Canada. The issue presented on D’s cross‑appeal is whether the Canadian authorities violated D’s constitutionally guaranteed right to a fair hearing by failing to disclose details of official Canadian involvement in the U.S. investigation of him.
Held: The appeal should be allowed and the cross‑appeal dismissed.
(1) Issue on Appeal
Per Lamer C.J. and La Forest, L’Heureux‑Dubé, Gonthier, Cory and Iacobucci JJ.: If D had successfully consummated in Canada a scheme like the one he embarked on in the U.S., he would not have been guilty of any completed offence known to the law of Canada, since the conversion of monies that are believed to be but are not in fact the proceeds of crime was not an offence in Canada at the relevant time. There were two statutory provisions under which Canadian authorities might have prosecuted money‑laundering schemes like the one that D attempted to consummate, but both required that an accused, if he was to be convicted, should have known that the money he converted was the proceeds of crime. Since the money that the U.S. undercover agents asked D to launder was not in fact the proceeds of crime, D could not possibly have known that it was the proceeds of crime.
However, the steps D took toward the realization of his plan to launder money would have amounted to a criminal attempt under Canadian law if the conduct in question had taken place entirely within Canada. The crime of attempt under s. 24(1) of the Criminal Code consists of an intent to commit the completed offence together with some act more than merely preparatory taken in furtherance of the attempt. D’s argument that Parliament did not intend by s. 24(1) to criminalize all attempts to do the impossible, but only those attempts that the common law has classified as “factually impossible”, does not help him, because the conventional distinction between factual and legal impossibility is not tenable. The only relevant distinction for purposes of s. 24(1) is between imaginary crimes and attempts to do the factually impossible. Only attempts to commit imaginary crimes fall outside the scope of the provision. Because what D attempted to do falls squarely into the category of the factually impossible ‑‑ he attempted to commit crimes known to law and was thwarted only by chance ‑‑ it was a criminal attempt within the meaning of s. 24(1) .
Even though D did not “know” that the money he attempted to convert was the proceeds of crime, he nevertheless had the requisite mens rea for a crime. Knowledge is not the mens rea of the money‑laundering offences. Knowledge has two components ‑‑ truth and belief ‑‑ and of these, only belief is mental or subjective. Belief is the mens rea of the money‑laundering offences. That the belief be true is one of the attendant circumstances that is required if the actus reus is to be completed. The absence of an attendant circumstance is irrelevant from the point of view of the law of attempt.
D’s conduct could also justify his surrender on the conspiracy charge. The issue is not whether D’s conduct can support a conviction for conspiracy, but only whether a prima facie case has been demonstrated that would justify his committal for trial if his conduct had taken place in Canada. For there to be a criminal conspiracy, there must be an intention to agree, the completion of an agreement, and a common design to do something unlawful. Conspiracy is a more “preliminary” crime than attempt, since the offence is considered to be complete before any acts are taken that go beyond mere preparation to put the common design into effect. Impossibility is not a defence to conspiracy. Conspirators should not escape liability because, owing to matters entirely outside their control, they are mistaken with regard to an attendant circumstance that must exist for their plan to be successful. From a purely conceptual perspective, the distinction between factual and legal impossibility is as unsound in the law of conspiracy as it is in the law of attempt. Cases of so‑called “legal” impossibility turn out to be cases of factual impossibility and the distinction collapses, except in cases of “imaginary crimes”. Furthermore, like attempt, conspiracy is a crime of intention. Since the offence of conspiracy only requires an intention to commit the substantive offence, and not the commission of the offence itself, it does not matter that, from an objective point of view, commission of the offence may be impossible.
Per Sopinka, McLachlin and Major JJ.: The intention to do an act coupled with some activity thought to be criminal is not sufficient to find the accused guilty of an attempt when that which was attempted was not an offence under the Criminal Code . There must be an underlying offence capable of being committed before the elements of the attempt offence can be considered. The substantive offence of money laundering as it stands cannot be committed without the actual proceeds of crime being present. The accused cannot “know” that what he is laundering is the proceeds of crime unless the proceeds are in fact the proceeds of crime. Since D did not have knowledge, the mens rea of the offence, he cannot be said to have attempted it. Moreover, it does not make sense to say that D attempted to launder the proceeds of crime, when he only attempted to launder what the FBI provided. There was no offence that could be committed; the laundering of legal proceeds is an imaginary crime.
The offence of conspiracy to launder money can be made out on these facts. The gravamen of the offence is the agreement to commit a crime, and it was open to the extradition judge to conclude that there was sufficient evidence of an agreement between D and his associate to commit the offence of money laundering. The conspiracy charge was based on the agreement to commit the general offence of money laundering, whereas the attempt charge was restricted to the attempted laundering of the money that was to have been provided by the authorities in the sting operation.
(2) Issue on Cross‑Appeal
A new hearing is not warranted here. The role of the extradition judge is a modest one, limited to the determination of whether or not the evidence is sufficient to justify committing the fugitive for surrender. The extradition hearing is intended to be an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canada’s international obligations. Even though the hearing must be conducted in accordance with the principles of fundamental justice, this does not automatically entitle the fugitive to the highest possible level of disclosure. The principles of fundamental justice guaranteed under s. 7 of the Canadian Charter of Rights and Freedoms vary according to the context of the proceedings in which they are raised. Procedures at the extradition hearing are of necessity less complex and extensive than those in domestic preliminary inquiries or trials. Since D received adequate disclosure of the materials that were being relied upon to establish the prima facie case against him, no additional disclosure was required. No justiciable Charter issue arises since the evidence provided by the requesting state contains sufficient information to conclude that the evidence was gathered entirely in the U.S., by American officials, for an American trial.
Cases Cited
By Cory and Iacobucci JJ.
Not followed: Director of Public Prosecutions v. Nock, [1978] 2 All E.R. 654; referred to: McVey (Re); McVey v. United States of America, [1992] 3 S.C.R. 475; R. v. Zundel, [1992] 2 S.C.R. 731; R. v. Vogelle and Reid, [1970] 3 C.C.C. 171; R. v. Stevens (1995), 96 C.C.C. (3d) 238; Irwin v. The Queen, [1968] S.C.R. 462, aff’g [1968] 2 C.C.C. 50; Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660; R. v. Cline (1956), 115 C.C.C. 18; R. v. Ancio, [1984] 1 S.C.R. 225; R. v. Deutsch, [1986] 2 S.C.R. 2; R. v. Gladstone, [1996] 2 S.C.R. 723; R. v. Donnelly, [1970] N.Z.L.R. 980; R. v. McIntosh, [1995] 1 S.C.R. 686; R. v. O’Brien, [1954] S.C.R. 666; Mulcahy v. The Queen (1868), L.R. 3 H.L. 306; Papalia v. The Queen, [1979] 2 S.C.R. 256; Guimond v. The Queen, [1979] 1 S.C.R. 960; Haughton v. Smith, [1973] 3 All E.R. 1109; R. v. Shivpuri, [1986] 2 All E.R. 334; R. v. Atkinson, [1987] O.J. No. 1930 (QL); R. v. Sew Hoy, [1994] 1 N.Z.L.R. 257; R. v. Chow Sik Wah, [1964] 1 C.C.C. 313; Howard Smith Paper Mills Ltd. v. The Queen, [1957] S.C.R. 403; R. v. Whitchurch (1890), 24 Q.B.D. 420; Argentina v. Mellino, [1987] 1 S.C.R. 536; United States of America v. Lépine, [1994] 1 S.C.R. 286; Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228; Canada v. Schmidt, [1987] 1 S.C.R. 500; United States v. Allard, [1987] 1 S.C.R. 564; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Chaplin, [1995] 1 S.C.R. 727; R. v. Lyons, [1987] 2 S.C.R. 309; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; Philippines (Republic) v. Pacificador (1993), 14 O.R. (3d) 321; United States of America v. Whitley (1994), 94 C.C.C. (3d) 99, aff’d [1996] 1 S.C.R. 467; R. v. Terry, [1996] 2 S.C.R. 207; R. v. Harrer, [1995] 3 S.C.R. 562.
By Major J.
Referred to: R. v. Donnelly, [1970] N.Z.L.R. 980; Haughton v. Smith, [1973] 3 All E.R. 1109; People v. Jaffe, 78 N.E. 169 (1906); R. v. Zundel, [1992] 2 S.C.R. 731; R. v. Zundel (1987), 31 C.C.C. (3d) 97; R. v. Streu, [1989] 1 S.C.R. 1521; R. v. Vogelle and Reid, [1970] 3 C.C.C. 171; R. v. Collins (1864), 9 Cox C.C. 497.
Statutes and Regulations Cited
Bill C‑17, Criminal Law Improvement Act, 1996, 2nd Sess., 35th Parl., 1996.
Canadian Charter of Rights and Freedoms, ss. 7 , 8 , 24 , 32 .
Criminal Attempts Act 1981 (U.K.), 1981, c. 47, ss. 1, 5.
Criminal Code, R.S.C., 1985, c. C‑46, ss. 24 , 27 , 163(2) (a), 181 , 196(4) (a) [rep. & sub. 1993, c. 40, s. 14(3)], 300, 354(1), 462.31(1) [ad. c. 42 (4th Supp.), s. 2 ], 465(1), 495(1)(a).
Extradition Act, R.S.C., 1985, c. E‑23, ss. 3, 9(3) [ad. 1992, c. 13, s. 2], 13, 14, 15, 16, 18(1)(b), (2), 19(b).
Interpretation Act, R.S.C., 1985, c. I‑21, s. 45(3) .
Narcotic Control Act, R.S.C., 1985, c. N‑1, ss. 4(1), 19.2(1) [ad. c. 42 (4th Supp.), s. 12].
N.Y. Penal Law § 110.10 (Consol. 1984).
United States Code, Title 18, §§ 371, 1956(a)(3).
Authors Cited
Brown, Barry. “‘Th’ attempt, and not the deed, Confounds us’: Section 24 and Impossible Attempts” (1981), 19 U.W.O. L. Rev. 225.
Canada. Law Reform Commission. Working Paper 45. Secondary Liability: Participation in Crime and Inchoate Offences. Ottawa: The Commission, 1985.
Colvin, Eric. Principles of Criminal Law, 2nd ed. Scarborough, Ont.: Thomson Professional Publishing Canada, 1991.
Fletcher, George P. Rethinking Criminal Law. Boston: Little, Brown, 1978.
La Forest, Anne Warner. La Forest’s Extradition to and from Canada, 3rd ed. Aurora, Ont.: Canada Law Book, 1991.
Meehan, Eugene M. A. “Attempt ‑‑ Some Rational Thoughts on its Rationale” (1976‑77), 19 Crim. L.Q. 215.
Mewett, Alan W., and Morris Manning. Mewett & Manning on Criminal Law, 3rd ed. Toronto: Butterworths, 1994.
Rainville, Pierre. “La gradation de la culpabilité morale et des formes de risque de préjudice dans le cadre de la répression de la tentative” (1996), 37 C. de D. 909.
Stuart, Don. Canadian Criminal Law: A Treatise, 3rd ed. Scarborough, Ont.: Carswell, 1995.
Williams, Glanville. “Attempting the Impossible ‑‑ A Reply” (1979‑80), 22 Crim. L.Q. 49.
Williams, Glanville. Criminal Law ‑‑ The General Part, 2nd ed. London: Stevens & Sons, 1961.
Williams, Glanville. Textbook of Criminal Law, 2nd ed. London: Stevens & Sons, 1983.
Williams, Glanville. “The Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes?”, [1986] Cambridge L.J. 33.
APPEAL and CROSS‑APPEAL from a judgment of the Ontario Court of Appeal (1995), 25 O.R. (3d) 559, 85 O.A.C. 9, 101 C.C.C. (3d) 271, allowing the respondent’s appeal from a decision of the Ontario Court (General Division), [1994] O.J. No. 3940 (QL), committing him for extradition and his application for judicial review of the Minister of Justice’s decision to order his surrender. Appeal allowed and cross‑appeal dismissed.
Robert W. Hubbard and Croft Michaelson, for the appellants.
Frank Addario, for the respondent.
The judgment of Lamer C.J. and La Forest, L’Heureux-Dubé, Gonthier, Cory and Iacobucci JJ. was delivered by
1 Cory and Iacobucci JJ. -- The issue in this appeal is whether the respondent’s conduct in the United States would constitute a crime if carried out in this country, thereby meeting the requirement of “double criminality” which is the precondition for the surrender of a Canadian fugitive for trial in a foreign jurisdiction. This issue requires the Court to consider the scope of the liability for attempted offences and conspiracy under Canadian criminal law, specifically, whether impossibility constitutes a defence to a charge of attempt or conspiracy in Canada.
2 The issue to be determined on the respondent’s cross‑appeal is whether, in order to receive a fair committal hearing, he was entitled to full disclosure of all materials gathered in the course of the investigation which are in the possession of the Requesting State or the Canadian authorities. Specifically, the Court is asked to decide if he was entitled to receive disclosure of information regarding the involvement of the Canadian authorities in the investigation with a view to establishing a violation of his rights under the Canadian Charter of Rights and Freedoms .
I. Facts
3 Arye Dynar, a Canadian citizen, was the subject of a failed “sting” operation attempted by the Federal Bureau of Investigation in the United States. Mr. Dynar was indicted together with Maurice Cohen, who is also a Canadian citizen, in the United States District Court of Nevada. The United States indictment charged both Mr. Dynar and Mr. Cohen with one count of attempting to launder money in violation of Title 18, United States Code, § 1956(a)(3), and one count of conspiracy to violate Title 18, United States Code, § 1956(a)(3), contrary to Title 18, United States Code, § 371. The Government of the United States requested their extradition by Diplomatic Note dated November 30, 1992. This appeal relates to the request for the extradition of Mr. Dynar.
4 The events that formed the basis of the indictment began with a telephone call placed on January 2, 1990, from Canada, by Mr. Dynar to a former associate, Lucky Simone, who was living in Nevada. The call was apparently made to seek investors for a business operation in the United States. Lucky Simone had, unbeknownst to Mr. Dynar, become a confidential informant working for FBI agent William Matthews. He informed Agent Matthews of Mr. Dynar’s call, and Agent Matthews requested that Mr. Simone return the call. Mr. Simone gave his consent for Agent Matthews to record the conversation.
5 Affidavit evidence filed by the Requesting State indicates that, during the 1980s, Mr. Dynar was the subject of investigations in the United States pertaining to the laundering of substantial amounts of money originating in the State of Nevada. Agent Matthews’ involvement in the investigation of Mr. Dynar’s activities began in 1988. When Mr. Dynar made contact with Lucky Simone in 1990, Agent Matthews deposed that he decided to determine whether or not Mr. Dynar was still involved in laundering money which was the proceeds of crime. He had Mr. Simone introduce a second confidential informant, known as “Anthony”, to Mr. Dynar. Anthony was instructed to ask if Mr. Dynar would be willing to launder large sums obtained as a result of illegal trafficking. When asked, Mr. Dynar agreed with alacrity to launder money for Anthony.
6 A great many conversations between the two men were recorded over the course of some months. On all of these occasions, Anthony was in Las Vegas, Nevada and Mr. Dynar was in Canada. Eventually, Mr. Dynar and Anthony arranged an initial meeting. The meeting was purportedly to allow Anthony to give money to Mr. Dynar for laundering as a first step towards developing a relationship in which Mr. Dynar would regularly launder money for him. During several of the conversations, it was made clear that the money to be laundered was “drug money”. Mr. Dynar insisted more than once that the amounts had to be large in order to make his efforts worthwhile. The conversations also disclosed that Mr. Dynar had an associate named “Moe”, who was subsequently identified as Maurice Cohen. Agent Matthews recorded all of the conversations in Las Vegas pursuant to the applicable law of the United States, which only requires the consent of one party for the lawful interception of the conversation. Special Agent Charles Pine of the Internal Revenue Service (IRS) was able to identify the voice of Maurice Cohen in the background of several of the conversations.
7 The initial plan of the American authorities was to set up the transfer of funds to Mr. Dynar in the United States. However, Mr. Dynar believed that he was the subject of a sealed indictment in the United States charging him with laundering very large sums of money and that if he travelled to that country, he would be arrested. It was accordingly agreed that Mr. Dynar’s associate, Maurice Cohen, would meet Anthony’s associate in Buffalo. Mr. Cohen was to take the money to Toronto where it would be laundered by Mr. Dynar. It would then be taken back to Buffalo by Mr. Cohen on the following day, after a commission for Mr. Dynar had been deducted.
8 In Buffalo, Mr. Cohen met with Special Agent Dennis McCarthy of the IRS, who was posing as Anthony’s associate. The conversations that took place between them in preparation for the transfer of funds were recorded by Agent McCarthy. They contain several statements to the effect that Mr. Cohen was working for Mr. Dynar, as well as some explanations of the logistics of the laundering scheme. In the end, however, the money was not transferred to Mr. Cohen. The FBI aborted the operation by pretending to arrest Agent McCarthy just prior to the transfer of the money. Mr. Cohen was allowed to return to Canada.
9 A committal hearing under s. 13 of the Extradition Act, R.S.C., 1985, c. E‑23, was held before Keenan J. of the Ontario Court (General Division). In support of the request for extradition of Mr. Dynar and Mr. Cohen, the United States as the Requesting State relied upon affidavits from the investigating officers and transcripts of the recorded telephone conversations. This evidence formed the basis for the decision to commit Mr. Dynar for extradition.
10 Keenan J. proceeded on the assumption that there was no involvement by Canadian authorities in the investigation and he was therefore highly critical of the conduct of the United States authorities in carrying out the investigation. It subsequently became clear that the Canadian authorities had indeed been consulted and informed regarding the various stages of the investigation. A memo from a U.S. federal government lawyer received by the Canadian Department of Justice in response to Keenan J.’s decision indicated that a formal cooperative arrangement was in place in which information was exchanged between United States and Canadian authorities regarding Mr. Dynar’s activities.
11 Mr. Dynar’s counsel complained of the lack of disclosure of the Canadian involvement in the investigation to the Minister of Justice in written submissions that were made prior to the Minister’s decision to surrender Mr. Dynar. Mr. Dynar’s counsel also attempted on two occasions to obtain full disclosure from the Minister of materials showing the course of dealings between the Canadian and American authorities. This disclosure was refused on both occasions on the basis that the Department of Justice did not possess the requested information, and in any event, that such disclosure was not appropriate in the extradition context. In his submissions to the Minister, Mr. Dynar’s counsel also invoked compassionate grounds related to some of Mr. Dynar’s health problems, and argued that Mr. Dynar should be prosecuted in Canada. All of these submissions were rejected by the Minister, who refused Mr. Dynar’s request to re‑open the extradition hearing, and ordered his surrender for prosecution in the United States.
12 Mr. Dynar appealed to the Ontario Court of Appeal from Keenan J.’s committal decision, and sought judicial review of the Minister’s decision to order his surrender. Galligan J.A., for a unanimous court, allowed the appeal and the application for judicial review on the basis that the activities of Mr. Dynar would not constitute a criminal offence in Canada, even though they did constitute an offence under the applicable United States law: (1995), 25 O.R. (3d) 559, 85 O.A.C. 9, 101 C.C.C. (3d) 271. Mr. Dynar was therefore discharged.
13 The Minister of Justice and the United States have appealed Mr. Dynar’s discharge and Mr. Dynar has brought a cross‑appeal.
II. Applicable Legislation
14 The relevant statutory provisions are not the United States provisions under which Mr. Dynar has been indicted, but the provisions of the Canadian Criminal Code, R.S.C., 1985, c. C‑46, and the Narcotic Control Act, R.S.C., 1985, c. N‑1. It is these enactments which will determine whether the conduct of Mr. Dynar in the United States would constitute offences in this country. See McVey (Re); McVey v. United States of America, [1992] 3 S.C.R. 475.
15 The Criminal Code provision that establishes the substantive “money laundering” offence is:
462.31 (1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and knowing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of
(a) the commission in Canada of an enterprise crime offence or a designated drug offence; or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an enterprise crime offence or a designated drug offence.
16 A similar offence is contained in the Narcotic Control Act:
19.2 (1) No person shall use, transfer the possession of, send or deliver to any person or place, transport, transmit, alter, dispose of or otherwise deal with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and knowing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of
(a) the commission in Canada of an offence under section 4, 5 or 6; or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence under section 4, 5, or 6.
17 The relevant provisions of the Criminal Code which provide criminal liability for attempt and conspiracy are:
24. (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.
465. (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:
. . .
(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable;
18 Finally, the role of the extradition judge in a committal hearing is provided for under the Extradition Act, as amended by S.C. 1992, c. 13. In particular, the following provisions are relevant to this appeal:
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.
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.
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,
. . .
(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.
III. Judgments Below
A. Ontario Court of Justice (General Division), [1994] O.J. No. 3940 (QL)
19 Keenan J. held that the wiretap evidence “if legally admissible, is sufficient evidence upon which a properly instructed jury could find that Dynar and Cohen had agreed to engage in a scheme to launder illicit funds and that Cohen’s meeting with McCarthy in Buffalo was an act in furtherance of that conspiracy” (para. 3). He was also of the view that the conduct of Dynar and Cohen could constitute the offence of attempt to launder proceeds of crime.
20 Keenan J. noted that the wiretap interceptions were made “without reasonable and probable grounds to believe that an offence had been committed” (para. 5). The interceptions were part of a “sting” operation and the money laundering scheme did not exist. He noted that, if the judicial authorization for the wiretap had been sought in Canada, it would have been refused. However, Charter relief was not available because the infringement was not the result of Canadian state action, and did not involve the cooperation of the Canadian authorities. He held that the mere fact that the evidence was used in Canadian extradition proceedings did not engage the Charter .
21 Keenan J. stated that the 1992 amendments to the Extradition Act were intended to overcome problems of delays and multiplicity of proceedings in extradition matters. Section 9(3) of the Extradition Act removes the necessity for a fugitive in an extradition proceeding to seek Charter relief by way of an application for habeas corpus. The extradition judge, as a superior court judge, is a “court of competent jurisdiction” for the purposes of s. 24 of the Charter . But the provision restricts the power of the extradition judge to grant any such relief to the functions the judge performs under the Act. As a result, Keenan J. was of the view that the availability of Charter relief in a committal proceeding is limited to infringements that directly affect the hearing and the procedures set out in the Act, and may also include questions of unreasonable delay. However since no Charter violation had been committed by a Canadian government actor, it was not necessary to explore the scope of available Charter relief under s. 9(3) .
22 Keenan J. acknowledged that the role of the extradition judge under the Extradition Act is a modest one. It is limited to examining the evidence submitted to ensure that it complies with the Act, and that it is sufficient to disclose conduct which would constitute an offence if it had been carried out in Canada. Although the evidence in the case at bar did meet this test, Keenan J. felt it necessary to comment on the method by which the evidence had been gathered by the Requesting State as part of his reporting function under s. 19(b) of the Extradition Act.
23 In his report to the Minister of Justice, Keenan J. was critical of the conduct of the American authorities. He characterized their actions in investigating Mr. Dynar as a cross‑border “fishing expedition” that showed lack of respect for Canadian sovereignty. He condemned the FBI for failing to make use of mutual legal assistance treaties to request Canadian assistance in gathering evidence in Canada, and concluded that “[w]hether deliberately or inadvertently, the F.B.I. agents ignored the principles of international comity and treated Canada as a part of their own jurisdiction for gathering evidence” (para. 30). He expressed the opinion that Agent Matthews did not have reasonable grounds for believing that an offence was being or would be committed.
24 Nonetheless, Keenan J. thought that all requirements for Mr. Dynar’s extradition had been properly fulfilled and issued a warrant of committal for him.
B. Minister of Justice
25 The Minister of Justice wrote to counsel for Mr. Dynar, indicating that although the extent of the involvement of Canadian law enforcement officials in the investigation had not been disclosed prior to the committal hearing, he was not persuaded that the hearing should be re‑opened. Although Keenan J. commented on the lack of Canadian involvement in his reasons for committal, “this did not form the basis for his decision that the Charter did not apply to the evidence gathering process of the American authorities in this case”.
26 The Minister stressed the fact that the investigations were conducted in the United States, and that Mr. Dynar’s conversations were intercepted there. As a result, he was of the view that s. 24(2) of the Charter could not be applied to exclude the evidence gathered in the United States. Although he recognized that his decision to surrender Mr. Dynar must comply with the Charter , and that extradition in certain circumstances may violate the principles of fundamental justice, he concluded that there was nothing about Mr. Dynar’s case that would render his surrender unacceptable or oppressive.
27 The Minister rejected Mr. Dynar’s counsel’s submissions that Mr. Dynar’s age and health justified a refusal of surrender. Nothing indicated that Mr. Dynar was unfit for trial, and there was no evidence that extradition would aggravate his medical condition. Furthermore, if treatment was required it would be available in the United States.
28 The Minister signed the warrants of surrender for Mr. Dynar.
C. Ontario Court of Appeal (1995), 25 O.R. (3d) 559
29 Galligan J.A. set out the issue presented by this case. United States law allows conviction of persons caught in money‑laundering “sting” operations, but Canadian law does not. In particular, the Canadian offence of money‑laundering requires not only that the money must be the actual proceeds of crime, but also that the accused have knowledge of that fact. The American offence is complete if the person acts on a representation that the property is the proceeds of crime. The money does not have to be the proceeds of crime, and no actual knowledge is required.
30 Galligan J.A. recognized that the test for establishing an extradition crime is conduct‑based. However since actual knowledge is required for the substantive offences of money laundering under the Criminal Code and the Narcotic Control Act, he was of the view that “it would be manifestly unjust to use the law relating to attempts and conspiracy to elevate conduct which does not amount to an extradition crime into conduct which does” (p. 567).
31 Galligan J.A. did not find it necessary to consider the theory of impossible attempts, characterizing the real issue as whether a different mental element can be the basis for the offence of attempt or conspiracy than is required for the substantive offence. In his view, knowledge and belief are discrete states of mind that are not the same for legal purposes. The intention for the offence of attempt must mirror the intention for the corresponding substantive offence. Since knowledge is essential for the substantive offence of money laundering, the offence of attempt to launder money is only made out if the accused intends to deal with money knowing that it is derived from crime.
32 Furthermore, Galligan J.A. indicated that the essence of a conspiracy under the Criminal Code is an agreement to commit an indictable offence. The agreement between Dynar and Cohen was an agreement to deal with money believed to be the proceeds of crime, which is not an offence in Canada. He could not justify the substitution of the mental element of belief for knowledge when the charge is conspiracy to launder money. In the absence of knowledge, the agreement between Dynar and Cohen was not a conspiracy to launder money either under the Criminal Code or the Narcotic Control Act.
33 In the result, Galligan J.A. was of the view that the conduct of Mr. Dynar did not constitute an offence in Canada, and therefore he was not extraditable. Furthermore, since Mr. Dynar should have been discharged under s. 18(2) of the Extradition Act, the Minister was not entitled to order his surrender. The appeal from the committal and the application for judicial review of the Minister’s surrender decision were therefore allowed, both decisions were set aside and Mr. Dynar was discharged.
34 Finally, Galligan J.A. disagreed with Keenan J.’s opinion that the American authorities had entrapped Mr. Dynar. He was of the view that there was a basis for reasonable suspicion that an offence was being committed after Mr. Dynar made his first attempt to contact his Las Vegas associate. Furthermore, the American officer did not go beyond providing Mr. Dynar with an opportunity to commit the offence. No improper inducement was offered. Finally, Galligan J.A. found no basis in the evidence for criticizing the conduct of the American investigators. The additional evidence disclosed after the hearing also revealed appropriate respect for Canadian sovereignty and adequate consultation between American and Canadian law enforcement officials.
IV. Issues
35 The major issue which arises on the appeal is whether Mr. Dynar’s conduct would have amounted to an offence under Canadian law if it had occurred in Canada. This question in turn has two parts: whether an accused who attempts to do the “impossible” may be guilty of attempt and whether an accused who conspires with another to do the impossible may be guilty of conspiracy.
36 On the cross‑appeal the issue presented is whether the Canadian authorities violated Mr. Dynar’s constitutionally guaranteed right to a fair hearing by failing to disclose to Mr. Dynar details of official Canadian involvement in the U.S. investigation of him.
V. Analysis
A. The Criminality of Mr. Dynar’s Conduct Under Canadian Law
(1) Introduction
37 In our view, Mr. Dynar’s conduct would have amounted to a criminal attempt and a criminal conspiracy under Canadian law.
38 An accused may not be extradited from Canada unless it appears that his conduct, if it had taken place in Canada, would have amounted to a crime under the laws of this country. See Extradition Act, s. 18(1)(b). Mr. Dynar resists extradition on the ground that he did nothing that the criminal law of Canada proscribes. The appellants answer that, if Mr. Dynar had done in Canada what he did (telephonically) in the United States, he would have been guilty of the crimes of attempt and conspiracy.
39 It is clear that, if Mr. Dynar had successfully consummated in Canada a scheme like the one that he embarked upon in the United States, he would not have been guilty of any completed offence known to the law of Canada. The conversion of monies that are believed to be the proceeds of crime but that are not in fact the proceeds of crime was, at the relevant time in the history of this proceeding, not an offence in Canada.
40 There were two statutory provisions (s. 462.31(1) of the Criminal Code and s. 19.2(1) of the Narcotic Control Act) under which Canadian authorities might have prosecuted money‑laundering schemes like the one that Mr. Dynar attempted to consummate. However, both required that an accused, if he was to be convicted, should have known that the money he converted was the proceeds of crime:
462.31 (1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any pr