United States of America v. Dynar, [1997] 2 S.C.R. 462 (1997)

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 ...

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