United States of America v. Cotroni; United States of America v. El Zein

United States of America v. Cotroni; United States of America v. El Zein
Collection
Supreme Court Judgments
Date
1989-06-08
Report
[1989] 1 SCR 1469
Case number
20035, 20036
Judges
Beetz, Jean; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
Quebec
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 20035, 20036
Decision Content
United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469
United States of America Appellant
v.
Frank Santo Cotroni Respondent
and between
United States of America Appellant
v.
Samir El Zein Respondent
indexed as: united states of america v. cotroni; united states of america v. el zein
File Nos: 20035, 20036.
*1988: May 5.
*Present: Beetz, Wilson, Le Dain, La Forest and L'Heureux‑Dubé JJ.
**Re‑hearing: 1989: February 22, 23; 1989: June 8.
**Present: Dickson C.J. and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.
on appeal from the court of appeal for quebec
Constitutional law -- Charter of Rights -- Right of Canadian citizen to remain in Canada -- Extradition -- Conspiracy to import drugs into U.S.A. from Canada -- Actions of accused taking place in Canada -- Offence existing under both U.S. law and Canadian law -- Whether or not extradition of Canadian citizen under these circumstances an infringement of citizen's right to remain in Canada -- If so, whether or not extradition justifiable under s. 1 of the Charter -- Canadian Charter of Rights and Freedoms, ss. 1 , 6(1) .
Extradition -- Canadian citizens involved in conspiracy to import drugs into U.S.A. from Canada -- Actions of accused taking place in Canada ‑‑ Offence existing under both U.S. law and Canadian law -- Whether or not extradition of Canadian citizen under these circumstances an infringement of citizen's right to remain in Canada -- If so, whether or not extradition justifiable under s. 1 of the Charter .
Appellants are Canadian citizens who were arrested in Canada for separate offences pursuant to warrants issued under the Extradition Act and the Extradition Treaty between Canada and the United States. Both were alleged to have participated in a conspiracy to import and distribute heroin in the United States; El Zein was also alleged to have imported heroin into the United States. The appellants' actions which related to the alleged offences took place when they were in Canada and appellants could have been tried under Canadian law. The United States sought extradition, committal for extradition was ordered in each case and applications for habeas corpus with certiorari in aid were dismissed. The Quebec Court of Appeal quashed the committals. The constitutional questions before this Court queried (1) whether the surrender of a Canadian citizen to a foreign state constituted an infringement of the s. 6(1) Charter right to remain in Canada and, (2) if so, whether surrender here constituted a reasonable limit on that right under s. 1 .
Held (Wilson and Sopinka JJ. dissenting): The appeals should be allowed; both constitutional questions should be answered in the affirmative.
Per Dickson C.J. and La Forest, L'Heureux‑Dubé, Gonthier and Cory JJ.: The extradition of a Canadian citizen prima facie infringes the citizen's right to remain in Canada as guaranteed by s. 6(1) of the Charter -- a right to be interfered with only if justified as being required to meet a reasonable state purpose. This Charter right would have been drafted differently if it were to include only protection from expulsion and banishment or exile. Its central thrust, nevertheless, is against exile and banishment for the purpose of excluding membership in the national community. Extradition is not directed to that purpose and lies at the outer edges of the core values being protected by the provision.
The objectives underlying extradition are pressing and substantial and are sufficiently important to make it a reasonable limit -- within the meaning of s. 1 and assuming the other requirements of s. 1 are met -- to the Charter right set out in s. 6(1) . The investigation, prosecution and suppression of crime for the protection of the citizen and the maintenance of peace and public order is an important goal of all organized societies. The pursuit of that goal cannot realistically be confined within national boundaries. The objectives of extradition go beyond that of suppressing crime, simpliciter, and include bringing fugitives to justice for the proper determination of their guilt or innocence in a proper hearing.
An extradition may be rationally connected to the objectives underlying extradition notwithstanding the fact that Canada has sufficient interest to prosecute for the same acts. It is often better that a crime be prosecuted where its harmful impact is felt and where the witnesses and the persons most interested in bringing the criminal to justice reside.
The Oakes test should not be applied in an overly rigid and mechanistic fashion: the language of the Charter invites a measure of flexibility. While the rights guaranteed by the Charter must be given priority in the equation, the underlying values must be sensitively weighed in a particular context against other values of a free and democratic society sought to be achieved by the legislature.
Extradition impairs the right under s. 6(1) as little as is reasonably possible. Extradition practices have been tailored as much as possible for the protection of the liberty of the individual and accord the same kinds of rights (though in a necessarily attenuated form) as are afforded to an accused under ss. 7 and 11 of the Charter . The important and substantial objectives which underlie extradition and which are essential to the maintenance of a free and democratic society warrant this somewhat peripheral Charter infringement.
In the case at bar, respondents were physically present in Canada when they allegedly participated in the transactions in respect of which they stand charged. These alleged transactions, however, were of a transnational nature. While continued physical presence in Canada may be relevant under ss. 1 and 6 of the Charter , the locus of wrongdoing is not. The right to remain in Canada, furthermore, is not more affected by the alleged crime's being committed outside Canada as opposed to inside Canada.
A general exception for a Canadian citizen who could be charged in Canada would unduly interfere with the objectives of extradition. Considerations relating to effective prosecution, the availability of evidence, initiative for investigation and to the impossibly difficult task of determining the country best suited to try the case by judicial examination, go beyond mere administrative convenience and touch the very purpose underlying extradition. In particular, the interests of society in bringing a fugitive to justice at a trial where his or her guilt or innocence can be properly determined would be seriously impaired. Such an approach, moreover, would weaken the system generally, and so the objectives it serves, by sapping the trust and good faith that must exist between nations and their officials and law enforcement agencies at many levels.
Justification for the limitation of the right under s. 1 is not vitiated by the fact that the question of whether or not extradition will take place is left to the discretion of the Attorney General of Canada or of a province. The principal discretion involved is whether or not to prosecute and the reasons justifying that discretion underlie the discretion of deciding whether or not a Canadian should be prosecuted in Canada or abroad. In exercising this discretion, a citizen's s. 6(1) rights must be given due weight. In practice, the decision whether to prosecute or not to prosecute in this country and allow the authorities in another country to seek extradition, is made following consultations between the appropriate authorities in the two countries when various factors, including nationality, are considered in weighing the interests of the two countries in the prosecution.
The executive discretion to surrender was of little relevance here.
Per Wilson J. (dissenting): Section 6(1) of the Charter was designed to protect the right of a Canadian citizen to choose of his own volition to enter, remain in or leave Canada. The language of s. 6(1) is clear and unambiguous. Had it been the intention that s. 6(1) address only a citizen's right not to be exiled or banished, the section would have been framed in more specific terms.
The locus of the wrongdoing is very relevant in any attempt to justify extradition as a reasonable limit on a Canadian citizen's right to remain in Canada. It is often the key factor connecting the accused to the requesting state. The right of a citizen to remain in Canada need not be violated when the crime has been committed by a Canadian in Canada and is punishable by Canadian law. He can be brought to justice right here. It is otherwise when the crime has been committed in the requesting state. The argument for extradition being a reasonable limit under s. 1 is clearly much stronger in the latter case. More persuasive reasons than convenience of prosecution are required to justify the violation of a right expressly guaranteed to Canadian citizens in the Charter . This Charter right is not a trivial one nor can its breach be viewed as peripheral.
The executive branch of government in exercising its discretionary powers as to whether or not to extradite or whether or not to prosecute is bound by the Charter . It has no discretion as to whether or not it will respect guaranteed rights. Its discretion is limited by the Charter and not vice versa.
The control of trans‑border crime is of sufficiently pressing and substantial concern to warrant a legislative limit on the citizen's right to remain in Canada. The proportionality test, however, was not met. Extradition, while it may be rationally connected in general to the objective of controlling trans‑border crime, does not impair the s. 6(1) right "as little as possible" on the particular facts of these appeals. The objective could have been achieved by prosecuting respondents in Canada and so have avoided a contravention of s. 6(1) of the Charter entirely. A flexible approach might be taken with respect to proportionality in some cases but careful scrutiny of a legislative scheme should not be abandoned where that scheme directly abridges a guaranteed right, particularly in relation to an aspect of the criminal law.
The comity of nations fostered by extradition would not be adversely affected if extradition were to be denied in cases such as the present.
Per Sopinka J. (dissenting): For the reasons given by Wilson J., extradition of a citizen who can be tried in Canada is not a reasonable limit and extradition in this case would constitute a breach of s. 6(1) which has not been justified under s. 1 of the Charter . The implications arising from the majority decision, however, need be expressed.
The infringement of s. 6(1) of the Charter resulting from extradition is not peripheral: countries to which a Canadian can be extradited do not recognize the presumption of innocence or the right to remain silent; do not permit bail; have no independent bar; and still retain the death penalty for a number of offences. Any enforceable rules of law designed to protect the citizen make no distinction as to the nature of the requesting state. Further, little protection can be afforded by matters considered at the time of treaty negotiations because many of the treaties are old and the political and legal nature of many states has drastically changed in the interim.
The practice that the decision to extradite is made after consultations between the authorities of Canada and the requesting state is only a practice and is not reviewable unless a discretion was exercised for an improper or arbitrary motive. It is neither "a limit prescribed by law" nor crafted to lessen the impact of a breach of s. 6(1) and so cannot justify that breach.
A decision to prosecute in Canada will not protect the citizen against extradition unless the treaty confers a discretion in Canada not to extradite its own citizens. This discretion is a political matter. Accordingly, whether a decision to prosecute will avail will depend on the general policy of the Canadian government. This policy is not expressed in any instrument having the force of law.
A law cannot be salvaged by relying on the discretion of the prosecutor not to apply the law where it would result in a violation of the Charter . Such discretion is not circumscribed by guidelines enforceable at law.
Cases Cited
By La Forest J.
Applied: R. v. Oakes, [1986] 1 S.C.R. 103; considered: Re Federal Republic of Germany and Rauca (1983), 4 C.C.C. (3d) 385; Canada v. Schmidt, [1987] 1 S.C.R. 500; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; referred to: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Brickman v. Federal Republic of Germany, App. 1, No. 6242/73, C.D. 46; R. v. Governor of Pentonville Prison, ex parte Budlong, [1980] 1 All E.R. 701; R. v. Whyte, [1988] 2 S.C.R. 3; Libman v. The Queen, [1985] 2 S.C.R. 178; Director of Public Prosecutions v. Doot, [1973] A.C. 807; R. v. Jones, [1986] 2 S.C.R. 284; Re Burley (1865), 60 B.F.S.P. 1241; R. v. Schwartz, [1988] 2 S.C.R. 443; United States of America v. Swystun, (1987), 50 Man. R. (2d) 129; Smythe v. The Queen, [1971] S.C.R. 680; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045.
By Wilson J. (dissenting)
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Oakes, [1986] 1 S.C.R. 103; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Re Federal Republic of Germany and Rauca (1983), 4 C.C.C. (3d) 385; Canada v. Schmidt, [1987] 1 S.C.R. 500; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; United States of America v. Swystun, (1987), 50 Man. R. (2d) 129; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713.
By Sopinka J. (dissenting)
United States of America v. Swystun (1987), 50 Man. R. (2d) 129; R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045; Canada v. Schmidt, [1987] 1 S.C.R. 500.
Statutes and Regulations Cited
Canadian Bill of Rights, R.S.C. 1970, App. III, s. 2(a).
Canadian Charter of Rights and Freedoms, ss. 1 , 6(1) , 7 .
Constitution Act, 1982, s. 52(1) .
Criminal Code, R.S.C. 1970, c. C‑34, s. 423(1)(d).
Extradition Act, R.S.C. 1970, c. E‑21, s. 3.
Narcotic Control Act, R.S.C. 1970, c. N‑1, s. 5.
Transfer of Offenders Act, S.C. 1977‑78, c. 9.
Authors Cited
Canada. Parliament. Special Joint Committee on the Constitution of Canada. Minutes and Proceedings of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada. First Session of the Thirty-second Parliament, 1980-81. Issue No. 46. Ottawa: 1981.
Castel, J. G. and Sharon A. Williams. "The Extradition of Canadian Citizens and Sections 1 and 6(1) of the Canadian Charter of Rights and Freedoms ", in The Canadian Yearbook of International Law, vol. 25, published under the auspices of The Canadian Branch, International Law Association. Vancouver: University of British Columbia Press, 1987.
Council of Europe. Explanatory Reports on the Second to Fifth Protocols to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Strasbourg: 1971.
Extradition Treaty between Canada and the United States, Canada Treaty Series, 1976.
Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Securing certain Rights and Freedoms other than Those Already Included in the Convention and in the First Protocol Thereto, European Convention on Human Rights, Article 3, paragraph 1, European Treaty Series, No. 46.
Van Dijk, P. and G. J. H. Van Hoof. Theory and Practice of the European Convention on Human Rights. Deventer, The Netherlands: Kluwer Law and Taxation Publishers, 1984.
APPEAL (United States of America v. Cotroni) from a judgment of the Quebec Court of Appeal (1986), 2 Q.A.C. 280, allowing an appeal a judgment of Mackay J. dismissing an application for habeas corpus with certiorari in aid with respect to an extradition order issued by Phelan J. Appeal allowed, Wilson and Sopinka JJ. dissenting; both constitutional questions should be answered in the affirmative.
APPEAL (United States of America v. El Zein) from a judgment of the Quebec Court of Appeal (1986), 29 C.C.C. (3d) 560, [1986] R.J.Q. 1740, allowing an appeal a judgment of Phelan J. dismissing an application for habeas corpus with certiorari in aid with respect to an extradition order issued by Downs J. Appeal allowed, Wilson and Sopinka JJ. dissenting; both constitutional questions should be answered in the affirmative.
Michel Vien and James Brunton, for the appellant.
Francis Brabant and Simon Venne, for the respondent Frank Santo Cotroni.
Christian Desrosiers, for the respondent Samir El Zein.
//La Forest J.//
The judgment of Dickson C.J. and La Forest, L'Heureux-Dubé, Gonthier and Cory JJ. was delivered by
LA FOREST J. -- The principal issues in each of these appeals are set forth in the constitutional questions as follows:
1.Does the surrender of a Canadian citizen to a foreign state constitute an infringement of his right to remain in Canada as set out in s. 6(1) of the Canadian Charter of Rights and Freedoms ?
2.If the surrender of such citizen constitutes a prima facie infringement of his right to remain in Canada, does the surrender of respondent in the circumstances of this case constitute a reasonable limit under s. 1 of the Canadian Charter of Rights and Freedoms ?
Background
Mr. Cotroni, a Canadian citizen, was arrested in Canada on August 30, 1983, pursuant to a warrant issued under the authority of the Extradition Act, R.S.C. 1970, c. E-21, and the Extradition Treaty between Canada and the United States, CTS 1976. The United States requested the extradition of Mr. Cotroni on a charge in that country of conspiracy to possess and distribute heroin. All his actions relating to the alleged conspiracy took place while he was in Canada.
In brief, the conspiracy alleged involved the importation and sale of the drug to alleged accomplices of Cotroni in the United States. Delivery of the drug and payment would appear to have taken place in Canada, although most of the prosecution witnesses and the documentary evidence are in the United States. The accused's personal involvement was effectively confined to giving instructions to his accomplices in the United States and one in Canada by telephone in Montréal.
The extradition judge, Phelan J., ordered the committal of the accused for surrender. Cotroni then applied for the issue of a writ of habeas corpus with certiorari in aid before Mackay J., but this application was dismissed.
Cotroni then appealed to the Court of Appeal of Quebec on a variety of grounds, most of which are irrelevant to this appeal; see (1986), 2 Q.A.C. 280. All but one of these were dismissed. However, the court (Bisson, Jacques and LeBel JJ.A.) allowed the appeal and quashed the order of committal on the ground that the extradition of Cotroni infringed s. 6(1) of the Canadian Charter of Rights and Freedoms and was not, in the particular circumstances of the case, justifiable as a reasonable limit under s. 1 .
LeBel J.A. (with whom Bisson J.A. concurred) noted that Cotroni could be prosecuted in Canada as well as in the United States, and that the most important elements of the crime had taken place in Canada. Consistent with that court's earlier judgment in the El Zein case, he concluded that extradition under these circumstances did not meet the test set forth by this Court in R. v. Oakes, [1986] 1 S.C.R. 103. While the objectives sought by extradition, the maintenance of law and order and the suppression of crime on the international level in accordance with Canada's international obligations, were sufficient to warrant interference with a Charter right, these objectives could be met without infringing the right guaranteed by s. 6(1) . Cotroni could be prosecuted in this country, so his extradition would be unreasonable and disproportionate. Jacques J.A., who had delivered the opinion of the court in El Zein, expressed similar views.
The facts of the El Zein appeal are rather similar and raise the same constitutional issues. On March 16, 1984, Mr. El Zein, a Canadian citizen, met two individuals in Montréal and gave them a package containing 700 grams of heroin. The two individuals were later arrested by the American customs authorities at the Champlain, New York border crossing, and the 700 grams of heroin were seized.
On December 17, 1984, Mr. El Zein was arrested under a warrant issued pursuant to the Extradition Act and the Extradition Treaty between Canada and the United States. The United States requested his extradition for importation of heroin, conspiracy to import and conspiracy to traffic. As in the Cotroni case, all of El Zein's personal involvement concerning the alleged offences took place in Canada.
Following the extradition hearing, El Zein was committed for surrender by Downs J. of the Quebec Superior Court. An application for habeas corpus with certiorari in aid was dismissed by Phelan J., but on appeal to the Quebec Court of Appeal (1986), 29 C.C.C. (3d) 560, (Bisson, Jacques and LeBel JJ.A.) this decision was reversed and the appellant was released.
Jacques J.A., who gave the principal judgment, held that the extradition of a Canadian citizen for a crime under a foreign law does not constitute a reasonable limit to the right of a citizen to remain in Canada where the facts on which the charge is based occurred in Canada and constitute a crime here. In his view, extradition under these circumstances did not meet either the test of rationality or minimum impairment set forth in R. v. Oakes, supra. The objective sought -‑ the suppression of crime -‑ could be achieved in this case by prosecuting the respondent in Canada where, for all practical purposes, the act charged occurred.
Leave to appeal to this Court from both decisions was then sought and granted.
Section 6(1) of the Charter
Section 6(1) of the Charter provides that "Every citizen of Canada has the right to . . . remain in . . . Canada". The courts below held that extraditing a Canadian citizen constitutes an infringement of this right by forcing a citizen to leave Canada, and justification for extradition, therefore, had to be sought under s. 1 . This had, in effect, been conceded by counsel for the United States.
In this Court, however, counsel argued for a flexible, purposive approach which, he maintained, should lead to the conclusion that s. 6(1) would only apply when a Canadian citizen is threatened with exile, banishment or expulsion. Section 6(1) should not apply, the argument continues, unless governmental action arbitrarily or totally deprives a citizen of his or her right to remain in Canada. Extradition is not aimed at the deprivation of the right; it is temporary in nature and does not affect citizenship. It has existed in this country for over a hundred years.
In support of this proposition, counsel cited an extract from Hansard of a committee hearing in which the Deputy Minister of Justice and an opposition member indicated their view that the right under s. 6(1) was not absolute and did not protect against extradition. The extract (Debates of the House of Commons, January 1981, 46:118) reads:
Mr. Tassé: Perhaps I might mention that we do not see Clause 6 as being an absolute right: I will give you an example of a situation where a citizen would, in effect, lose his right to remain in the country: that would be by virtue of an order under the Extradition Act: if someone committed an offence in another country and he is sought in this country, he could be surrendered to the other country.
The same thing would apply in the case of countries belonging to the Commonwealth to which the Extradition Act does not apply, but the Fugitive Offenders Act does apply. In that situation a Canadian would not have the right to remain in the country by virtue of the offences he might have committed in another country and for which he is sought so that justice could be applied.
Mr. Epp: Mr. Tassé, I do not think that is really what we are dealing with. That is not arbitrary and under the Extradition Act there is a process to which the person is entitled before that extradition order can in fact be finalized.
The committee debates are certainly of interest, but as the Court observed in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 508-9, they can only be accorded minimal weight in interpreting the Charter . In fact, whatever weight one accords to the statements here, they give no enlightenment on whether the right itself should be restricted or whether extradition should be dealt with as a reasonable limitation to that right under s. 1 of the Charter .
In approaching the matter, I begin by observing that a Constitution must be approached from a broad perspective. In particular, this Court has on several occasions underlined that the rights under the Charter must be interpreted generously so as to fulfill its purpose of securing for the individual the full benefit of the Charter 's protection (see the remarks of Dickson C.J. in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 155-56; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344). The intimate relation between a citizen and his country invites this approach in this context. The right to remain in one's country is of such a character that if it is to be interfered with, such interference must be justified as being required to meet a reasonable state purpose.
This is consistent with the ordinary meaning of the words "right to . . . remain in . . . Canada". Section 6(1) is phrased in broad terms. It does not state that a citizen has the right not to be arbitrarily expelled from Canada; it instead guarantees the right to remain in Canada. Had the intention of the Charter been solely to protect a person from being expelled, banished or exiled, it could have been so framed.
This approach is fortified by the fact that in enacting this clause several familiar models appear to have been ignored. The Canadian Bill of Rights, R.S.C. 1970, App. III, for example, more narrowly protects a person from exile (s. 2(a)), and the European Convention on Human Rights, 4th Protocol, Article 3, paragraph 1, states that a national shall not be "expelled". The Explanatory Reports on the Second to Fifth Protocols to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1971) explains that "It was understood that extradition was outside the scope of this paragraph." This approach is consistent with the International Covenant on Political Rights, Article 12, which contains no right to remain in one's own country, although it contains all the other rights listed in ss. 6(1) and 6(2) (a) of the Charter . A similar approach was adopted in Articles 2 and 3 of the Fourth Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms. In the light of these precedents, one would have thought these more specific words would have been used rather than according a general right to remain in Canada if a completely restricted right had been intended. I, therefore, conclude that extradition prima facie infringes upon the right guaranteed by s. 6(1) of the Charter .
That having been said, it seems to me that these precedents also reveal that the infringement to s. 6(1) that results from extradition lies at the outer edges of the core values sought to be protected by that provision. European authorities especially make a sharp distinction between expulsion and extradition; see Brickman v. Federal Republic of Germany, App. 1, No. 6242/73, C.D. 46, at pp. 202 and 210; P. Van Dijk and G. J. H. Van Hoof, Theory and Practice of the European Convention on Human Rights (1984), at p. 368. Like the international and constitutional documents I have referred to, the central thrust of s. 6(1) is against exile and banishment, the purpose of which is the exclusion of membership in the national community. While I would not wish to trivialize the effects of extradition on the individual, it is clear that extradition is not directed to the purpose. The words of Griffiths L.J. in contrasting extradition and deportation in R. v. Governor of Pentonville Prison, ex parte Budlong, [1980] 1 All E.R. 701, are relevant here. He said at p. 716:
I regard extradition as far more closely analogous to the implementation of domestic criminal law than to deportation. It is in no true sense a banishment from our shores as is deportation . . . .
An accused may return to Canada following his trial and acquittal or, if he has been convicted, after he has served his sentence. The impact of extradition on the rights of a citizen to remain in Canada appears to me to be of secondary importance. In fact, so far as Canada and the United States are concerned, a person convicted may, in some cases, be permitted to serve his sentence in Canada; see Transfer of Offenders Act, S.C. 1977-78, c. 9.
What is more, as I will attempt to demonstrate, extradition serves to promote a number of values that are central to a free and democratic society. These are considerations, however, that are relevant to the question whether and to what extent the Extradition Act and the treaty it implements can be saved under s. 1 of the Charter .
Before considering s. 1 , however, I should point out that the conclusion that extradition infringes upon s. 6(1) of the Charter is in accord with previous judicial authorities. In Re Federal Republic of Germany and Rauca (1983), 4 C.C.C. (3d) 385, the Ontario Court of Appeal held that extradition prima facie violates a citizen's right to remain in Canada as guaranteed by s. 6(1) of the Charter . The court went on, however, to find that it was a reasonable limit under s. 1 . In Canada v. Schmidt, [1987] 1 S.C.R. 500, this Court, though in obiter, endorsed the approach taken in Rauca, supra, in the following passage at p. 520:
As will be evident from what I have already said, I am far from thinking that the Charter has no application to extradition. The surrender of a person to a foreign country may obviously affect a number of Charter rights. In Rauca, supra, for example, the Ontario Court of Appeal recognized that extradition intruded on a citizen's right under s. 6 to remain in Canada, although it also found that the beneficial aspects of the procedure in preventing malefactors from evading justice, a procedure widely adopted all over the world, were sufficient to sustain it as a reasonable limit under s. 1 of the Charter . Section 6 was not raised in this case, though Schmidt is a Canadian citizen, no doubt because her counsel believed, as I do, that it was properly disposed of in the Rauca case.
I turn, then, to examine whether the assumption made in Canada v. Schmidt that extradition can be justified under s. 1 of the Charter can be supported.
Section 1 of the Charter
Section 1 of the Charter "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". As we saw, it was held in Re Federal Republic of Germany and Rauca, supra, (a holding approved, if obiter, by this Court in Canada v. Schmidt, supra) that extradition in general constitutes a reasonable limit within s. 1 to the right to remain in Canada set out in s. 6(1) of the Charter . The court stated in Re Federal Republic of Germany and Rauca, at p. 406:
When the rationale and purpose of the Extradition Act and treaty under it are looked at (having in mind that crime should not go unpunished), Canada's obligations to the international community considered and the history of such legislation in free and democratic societies examined, in our view, the burden of establishing that the limit imposed by the Extradition Act and the treaty on s. 6(1) of the Charter is a reasonable one demonstrably justified in a free and democratic society has been discharged by the respondents.
The court in that case was also of the view that even if the alleged crime could be prosecuted in Canada, the extradition of the accused would still be a reasonable limit on his right to remain in Canada. It stated, at p. 405:
Counsel for the appellant suggested that there was a possibility that the appellant could be prosecuted in Canada for the crimes with which he had been charged. If there was this alternative, the argument was that extradition was not a reasonable limit on the appellant's right as a citizen to remain in Canada. This submission was not pressed strongly and, like the Chief Justice of the High Court, we are not persuaded that there is, at present, a right to prosecute the appellant for the recited crimes in Canada. Even if there were such a right to prosecute, in light of the described purpose and reason for and lengthy history of extradition, it would not turn a reasonable limit on the citizen's right to remain in this country into an unreasonable limit.
The appellant naturally relies on these authorities.
Because of these authorities, the respondent Cotroni tended to shy away from contesting the general proposition that extradition constituted a reasonable limit on the right to remain in Canada, but stressed instead that it was not a reasonable limit under the circumstances of this case. Nonetheless, the argument advanced on behalf of the respondent El Zein that Canadian citizens should be tried in Canada for crimes committed abroad rather than be subjected to extradition really raises the general issue, and I shall therefore approach it frontally.
It is now well established that the onus of justifying a law creating a limitation to a Charter right lies with the party seeking to uphold that limitation, here the appellant; see R. v. Oakes, supra, which sets forth criteria for determining whether such a limitation is reasonable within s. 1 of the Charter . These criteria were recently summarized by Dickson C.J. in R. v. Whyte, [1988] 2 S.C.R. 3, at p. 20, as follows:
There are two major criteria. First, the objective which the measure responsible for the limit on a right or freedom is designed to serve must be sufficiently important to permit overriding the constitutionally-protected right or freedom (Oakes, supra, at p. 138). Second, to show that the measures are reasonable and demonstrably justified requires an analysis of the proportionality of the measures (Oakes, supra, at p. 139). There are three components to the proportionality test: the measures must be carefully designed to achieve the objective of the legislation, with a rational connection to the objective. The second component is that the measure should impair the right or freedom as little as possible. Finally, there must be proportionality between the effects of the impugned measures on the protected right and the attainment of the objective.
No one denies that the first criterion in R. v. Oakes, supra, is satisfied in these cases. The objectives sought by the legislation, the parties agree, relate to concerns that are pressing and substantial. The investigation, prosecution and suppression of crime for the protection of the citizen and the maintenance of peace and public order is an important goal of all organized societies. The pursuit of that goal cannot realistically be confined within national boundaries. That has long been the case, but it is increasingly evident today. Modern communications have shrunk the world and made McLuhan's global village a reality. The only respect paid by the international criminal community to national boundaries is when these can serve as a means to frustrate the efforts of law enforcement and judicial authorities. The trafficking in drugs, with which we are here concerned, is an international enterprise and requires effective tools of international cooperation for its investigation, prosecution and suppression. Extradition is an important and well-established tool for effecting this cooperation.
The importance of extradition for the protection of the Canadian public against crime can scarcely be exaggerated. To afford that protection, there must be arrangements that ensure prosecution not only of those who commit crimes while they are physically in Canada and escape abroad, but also of those whose acts abroad have criminal effects in this country. This requires reciprocal arrangements with other states seeking similar objectives. As I noted in Libman v. The Queen, [1985] 2 S.C.R. 178, at p. 212, it would be a sad commentary on our law if it was limited to the prosecution of minor offenders while permitting more seasoned criminals to operate on a world-wide scale.
What is more, I do not think that the free and democratic society that is Canada, any more than any other modern society, should today confine itself to parochial and nationalistic concepts of community. Canadians today form part of an emerging world community from which not only benefits but responsibilities flow. This is consistent with the approach taken by this Court in Libman v. the Queen, supra, at p. 214, where after stating that we should not be indifferent to the protection of the public in other countries, I added, at p. 214:
In a shrinking world, we are all our brother's keepers. In the criminal arena this is underlined by the international cooperative schemes that have been developed among national law enforcement bodies.
In a similar vein, Lord Salmon in Director of Public Prosecutions v. Doot, [1973] A.C. 807, in a passage (at p. 834) cited with approval in Libman v. The Queen, at pp. 197-98, stated:
I do not believe that any civilised country, even assuming that its own laws do not recognize conspiracy as a criminal offence, could today have any reasonable objection to its nationals being arrested, tried and convicted by English courts in the circumstances to which I have referred. Today, crime is an international problem -‑ perhaps not least crimes connected with the illicit drug traffic ‑- and there is a great deal of cooperation between the nations to bring criminals to justice. Great care also is taken by most countries to do nothing which might help their own nationals to commit what would be crimes in other countries: see, for example, section 3(2) of the Dangerous Drugs Act 1965.
As he made clear elsewhere (at p. 831), the fact that the relevant "crimes were more likely to ruin young lives in the United States of America than in this country . . ." is not of any great moment.
There is another aspect respecting the objectives of extradition worth mentioning. As I earlier indicated, these objectives go beyond that of suppressing crime, simpliciter, and include bringing fugitives to justice for the proper determination of their guilt or innocence. (Indeed most extradition cases, like the case here, involve accused, rather than convicted persons.) Extradition thus shares one of the basic objectives of all criminal prosecutions: to discover the truth in respect of the charges brought against the accused in a proper hearing. This is one of the "interests of society" referred to by Dickson C.J. in R. v. Oakes, which must, under s. 1 of the Charter , be balanced against the interest of the individual.
These various objectives are, in my view, sufficiently important to warrant the existence of a reasonable limit to the Charter right set out in s. 6(1) , assuming such limit, here extradition, meets the other relevant requirements for the application of s. 1 .
Counsel for the respondents argue, however, that the extradi