Disclosure

• Author: Nancy L. Dennison/Seth Weinstein
• Pages: 159-184

159

Disclosure

8

I. General Principles ........................................ 160

II. Requests for Disclosure .................................... 163

III. Test for Disclosure to Challenge the Sufficiency of the Record

of the Case .............................................. 163

IV. Test for Disclosure Where Alleging a Charter Breach ............. 167

V. Disclosure in Possession of the Requesting State ............... 172

VI. Disclosure to Build a Case for the Minister .................... 177

Appendix 8.1 Sample Notice of Application for Disclosure ...... 179

Appendix 8.2 Sample Affidavit in Support of an Application

for Disclosure ............................... 182

160 Prosecuting and Defending Extradition Cases: A Practitioner’s Handbook

I. General Principles

As a matter of procedural fairness, a person being sought for extradition must be

provided with sucient disclosure to allow for meaningful scrutiny of the case that

the requesting state is relying on in support of its request for extradition. However,

this does not mean that the person sought is entitled to unlimited disclosure. The

disclosure requirements in Canadian law are not transplanted into the extradition

process and, accordingly, the Crown’s disclosure obligations pursuant to Stinchcombe1

do not apply. While the person sought is entitled to know the case against them, having

regard to the purpose and expeditious nature of the extradition process, procedural

fairness requires only that the person sought be provided with the disclosure necessary

to challenge the suciency of the certified record of the case (ROC) or to raise cir-

cumscribed Charter2 arguments within the jurisdiction of the extradition judge.

The scope of extradition disclosure was addressed by the Supreme Court of Canada

in Dynar, a case considered under the previous Act, where the person sought had

requested disclosure of documentation relating to the role Canadian law enforcement

played in the requesting state’s investigation. In upholding the extradition judge’s

refusal to order production, Cory and IacobucciJJ explained that the circumscribed

issues at an extradition hearing limited the scope of disclosure available:

Even though the extradition 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 Charter vary according to the context of the proceedings in which they are raised.

It is clear that there is no entitlement to the most favourable procedures imaginable: R. v.

Lyons, [1987] 2 S.C.R. 309, at pp.361-62. For example, more attenuated levels of proced-

ural safeguards have been held to be appropriate at immigration hearings than would apply

in criminal trials. See Chiarelli v. Canada (Minister of Employment and Immigration), [1992]

1 S.C.R. 711. The same approach is equally applicable to an extradition proceeding. While

it was stated in Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, at p.658, that

the committal hearing in the extradition process is “certainly judicial in its nature and

warrants the application of the full panoply of procedural safeguards,” it was held that the

extent and nature of procedural protection guaranteed by s.7 of the Charter in an extradi-

tion proceeding will depend on the context in which it is claimed (at pp.656-57).

The context and purpose of the extradition hearing will shape the level of procedural

protection that is available to a fugitive. In Kindler v. Canada (Minister of Justice), [1991]

2 S.C.R. 779, at p.844, the position was put by the majority in this way:

While the extradition process is an important part of our system of criminal justice,

it would be wrong to equate it to the criminal trial process. It diers from the

1 R v Stinchcombe, [1991] 3 SCR 326.

2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being ScheduleB

to the Canada Act 1982 (UK), 1982, c11 [Charter].