Logan v. Canada (Attorney General), (2015) 441 N.B.R.(2d) 29 (CA)

JudgeRichard, Quigg and Baird, JJ.A.
CourtCourt of Appeal (New Brunswick)
Case DateMay 20, 2015
JurisdictionNew Brunswick
Citations(2015), 441 N.B.R.(2d) 29 (CA);2015 NBCA 59

Logan v. Can. (A.G.) (2015), 441 N.B.R.(2d) 29 (CA);

    441 R.N.-B.(2e) 29; 1152 A.P.R. 29

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. OC.003

Renvoi temp.: [2015] N.B.R.(2d) TBEd. OC.003

Gregory Logan (appellant) v. The Attorney General of Canada (on behalf of the United States of America) (respondent)

(68-14-CA; 2015 NBCA 59)

Indexed As: Logan v. Canada (Attorney General)

Répertorié: Logan v. Canada (Attorney General)

New Brunswick Court of Appeal

Richard, Quigg and Baird, JJ.A.

October 1, 2015.

Summary:

Résumé:

Logan exported narwhal tusks to the United States for sale. This resulted in his being charged with offences in both the United States and New Brunswick. He pleaded guilty in New Brunswick to seven counts of unlawfully exporting narwhal tusks to the United States contrary to the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. At the time of the guilty pleas, he had not known that the United States had requested his extradition and an authority to proceed had been issued six days earlier. Logan applied for a stay of the extradition proceedings, asserting that they were abusive, as possible extradition exposed him to double jeopardy in the United States and substantial punishment if convicted.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision not reported in this series of reports, denied a stay and committed the accused for extradition to the United States. The Minister of Justice ordered his surrender to the United States for prosecution on the offences of conspiracy to launder monetary instruments and laundering monetary instruments. The Minister declined to order surrender on charges related to smuggling. Logan appealed the committal order and applied for judicial review of the surrender order.

The New Brunswick Court of Appeal, in a decision reported at 441 N.B.R.(2d) 78; 1152 A.P.R. 78, dismissed the appeal from the committal order.

The New Brunswick Court of Appeal dismissed the application for judicial review of the surrender order.

Editor's note: for a related decision involving the same parties see 420 N.B.R.(2d) 349; 1091 A.P.R. 349.

Civil Rights - Topic 525

Mobility rights - Right to remain in Canada - Extradition - Logan exported narwhal tusks to the United States for sale - The Minister of Justice ordered his surrender to the United States for prosecution on the offences of conspiracy to launder monetary instruments and laundering monetary instruments - Logan applied for judicial review, asserting that the Minister erred by failing to properly consider that the surrender of Logan would violate his s. 6(1) Charter right to remain in Canada - The New Brunswick Court of Appeal rejected the assertion - Canadian prosecuting authorities had to give "due weight" to a Canadian citizen's right to remain in Canada by conducting a good-faith analysis of whether prosecution in Canada would be "equally effective" to prosecution in the requesting state based on the factors set out in United States of America v. Cotroni; United States of America v. El Zein (1989, SCC) - The Minister properly identified that test and weighed the various factors relevant in the circumstances of the case - His decision was entitled to a high degree of deference - The Minister did not breach the duty of procedural fairness by not obtaining reasons for the Public Prosecution Service of Canada's opinion that a Canadian prosecution on the money laundering charges was not a realistic option - See paragraphs 46 to 55.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - Logan exported narwhal tusks to the United States for sale - He pleaded guilty in New Brunswick to seven counts of unlawfully exporting narwhal tusks to the United States contrary to the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act - The Minister of Justice ordered his surrender to the United States for prosecution on the offences of conspiracy to launder monetary instruments and laundering monetary instruments - Logan applied for judicial review, asserting that the Minister erred in determining that his surrender would not violate s. 7 of the Charter as a result of abuse of process - He asserted that he entered a guilty plea in Canada on the mistaken belief that the disposition encompassed the entirety of his liability and that he would face no prosecution in the United States - The New Brunswick Court of Appeal dismissed the application - Setting aside a surrender order on such a ground was extremely rare and could only be granted in the "clearest of cases", where the continuation of the judicial proceedings would irreparably prejudice the integrity of the justice system - It was an exceptional remedy reserved for cases involving the most egregious forms of state misconduct or other abuse - Logan had to provide overwhelming evidence that the proceedings were unfair to the point that they were contrary to the interests of justice - This was not such a case - Absent evidence of bad faith or improper motive, the Minister was entitled to assume that the Canadian authorities acted in accordance with their legitimate authority and for no improper purpose - See paragraphs 27 to 36.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - Logan exported narwhal tusks to the United States for sale - He pleaded guilty in New Brunswick to seven counts of unlawfully exporting narwhal tusks to the United States contrary to the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act - The Minister of Justice ordered his surrender to the United States for prosecution on the offences of conspiracy to launder monetary instruments and laundering monetary instruments - Logan applied for judicial review, asserting that the Minister erred in the exercise of his discretion by not seeking assurances from the United States with respect to penalty to ensure that there would be no violation of the principle of specialty or s. 7 of the Charter - Logan asserted that the consideration of "all relevant" conduct by the sentencing court in the United States would result in punishment for conduct which formed the basis for the offences for which he was already punished in Canada - Further, the length of the sentence that he faced in the United States (10 to 12.5 years) would shock the Canadian conscience - The New Brunswick Court of Appeal dismissed the application - The Minister obtained information from the United States on their sentencing regime and determined that it contained "significant protections for accused persons" - Logan had the right to challenge any information submitted in support of sentence, to present any mitigating factors to the sentencing court, and to appeal any sentence on the basis that it was substantively or procedurally unreasonable - The Minister provided sound reasons in determining that it would not shock the conscience of Canadians to surrender Logan notwithstanding the potential for a lengthy sentence in the United States - See paragraphs 56 to 61.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - [See first Civil Rights - Topic 3129 ].

Civil Rights - Topic 3764

Punishment - General - Double punishment prohibited - Logan exported narwhal tusks to the United States for sale - He pleaded guilty in New Brunswick to seven counts of unlawfully exporting narwhal tusks to the United States contrary to the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act - The Minister of Justice ordered his surrender to the United States for prosecution on the offences of conspiracy to launder monetary instruments and laundering monetary instruments - Logan applied for judicial review, asserting that the Minister erred by concluding that double jeopardy did not attach to the conspiracy to launder offences - The New Brunswick Court of Appeal dismissed the application - The essential character of the Canadian offences was the act of cross-border smuggling - The distinct elements of the money laundering were based on specific conduct by Logan (the transportation, transmission, or transfer of funds or other monetary instruments out of the United States with the intent to promote or carry on an unlawful activity) - Although smuggling was a component of that offence, it was not the essence of the offence, nor was the fact that Logan profited from the smuggling - Assessing Logan's conduct on which the guilty pleas were based, the offence of money laundering was not discerned - See paragraphs 17 to 26.

Conflict of Laws - Topic 8

General - Doctrine of comity - Logan exported narwhal tusks to the United States for sale - He pleaded guilty in New Brunswick to seven counts of unlawfully exporting narwhal tusks to the United States contrary to the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act - The Minister of Justice ordered his surrender to the United States for prosecution on the offences of conspiracy to launder monetary instruments and laundering monetary instruments - Logan applied for judicial review, asserting that the Minister erred by failing to appreciate that the surrender would violate international comity - He asserted that Canada's decision to prosecute him satisfied Canada's international obligations to enforce the Convention on International Trade in Endangered Species of Wild Fauna and Flora and international comity required the United States to respect Canada's decision to do so - The New Brunswick Court of Appeal dismissed the application - An assertion that comity had not been respected by one state in discharging their international obligations was a matter between the contracting states - It was not a claim that could be asserted by an individual - See paragraphs 42 to 45.

Conflict of Laws - Topic 9201

Practice - General - Comity - [See Conflict of Laws - Topic 8 ].

Criminal Law - Topic 120

General principles - Double jeopardy - General - [See Civil Rights - Topic 3764 ].

Extradition - Topic 4

General - Role of Minister - Duty of fairness - [See Civil Rights - Topic 525 ].

Extradition - Topic 4

General - Role of Minister - Duty of fairness - The Minister of Justice ordered Logan's surrender to the United States for prosecution on the offences of conspiracy to launder monetary instruments and laundering monetary instruments - Logan applied for judicial review, asserting that the Minister denied him procedural fairness by refusing his request for an oral hearing - He had sought an oral hearing to present viva voce evidence on the issue of abuse of process by four witnesses (the Canadian authorities) - The New Brunswick Court of Appeal dismissed the application - The record before the Minister did not disclose evidence of misconduct or other abusive actions on the part of the Canadian authorities - Logan had not satisfied the air of reality requirement - As such, it was reasonable for the Minister to conclude that an oral hearing was not warranted - See paragraphs 37 to 41.

Extradition - Topic 18

General - Bars to extradition - General - [See Conflict of Laws - Topic 8 ].

Extradition - Topic 21

General - Bars to extradition - Ability to prosecute in Canada - [See Civil Rights - Topic 525 ].

Extradition - Topic 22

General - Bars to extradition - Abuse of process - [See first Civil Rights - Topic 3129 ].

Extradition - Topic 23

General - Bars to extradition - Charter breaches - [See Civil Rights - Topic 525 and both Civil Rights - Topic 3129 ].

Extradition - Topic 2747

Evidence and procedure before examining judge - Defences - Res judicata (incl. autrefois acquit and autrefois convict) - [See Civil Rights - Topic 3764 ].

Extradition - Topic 3347

Surrender to demanding country - Conditions precedent - Immunity respecting other crimes committed before surrender (rule of speciality) - [See second Civil Rights - Topic 3129 ].

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender (incl. standard of review) - [See Civil Rights - Topic 525 ].

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender (incl. standard of review) - The New Brunswick Court of Appeal reviewed the reasonableness standard of review as it applied to surrender orders under the Extradition Act - See paragraphs 11 to 16.

Cases Noticed:

Dionne v. Canada (Minister of Justice) (2008), 336 N.B.R.(2d) 177; 862 A.P.R. 177; 2008 NBCA 61, refd to. [para. 12].

Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761; 373 N.R. 339; 236 O.A.C. 371; 2008 SCC 23, refd to. [para. 13].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [para. 15].

Canada (Minister of Justice) v. Pacificador (2002), 162 O.A.C. 299, leave to appeal refused (2003), 312 N.R. 195; 180 O.A.C. 399 (S.C.C.), refd to. [para. 16].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 16].

Whaling v. Canada (Attorney General), [2014] 1 S.C.R. 392; 455 N.R. 1; 351 B.C.A.C. 43; 599 W.A.C. 43; 2014 SCC 20, refd to. [para. 20].

United States of America v. Andrews (1991), 73 Man.R.(2d) 131; 3 W.A.C. 131 (C.A.), refd to. [para. 22].

R. v. Van Rassel, [1990] 1 S.C.R. 225; 105 N.R. 103; 27 Q.A.C. 285, refd to. [para. 25].

R. v. Nixon (O.), [2011] 2 S.C.R. 566; 417 N.R. 274; 502 A.R. 18; 517 W.A.C. 18; 2011 SCC 34, refd to. [para. 33].

United States of America v. Anekwu, [2009] 3 S.C.R. 3; 393 N.R. 77; 275 B.C.A.C. 282; 465 W.A.C. 282; 2009 SCC 41, refd to. [para. 33].

Liang v. Canada (Attorney General), 2007 ONCA 741, refd to. [para. 35].

Whitley v. United States of America (1994), 75 O.A.C. 100; 20 O.R.(3d) 794 (C.A.), refd to. [para. 39].

R. et al. v. Larosa (N.) (2002), 163 O.A.C. 108; 166 C.C.C.(3d) 449 (C.A.), refd to. [para. 40].

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; 144 N.R. 327; 59 O.A.C. 241, refd to. [para. 44].

United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469; 96 N.R. 321; 23 Q.A.C. 182, refd to. [para. 48].

United States of America et al. v. Nadarajah, [2012] 3 S.C.R. 609; 437 N.R. 107; 301 O.A.C. 264; 2012 SCC 70, refd to. [para. 50].

United States of America v. Kwok, [2001] 1 S.C.R. 532; 267 N.R. 310; 145 O.A.C. 36; 2001 SCC 18, refd to. [para. 54].

Jamieson v. Canada (Minister of Justice) (1994), 197 N.R. 2 (Que. C.A.), revd. [1996] 1 S.C.R. 465; 197 N.R. 1, refd to. [para. 59].

Ross v. United States of America (1994), 51 B.C.A.C. 1; 84 W.A.C. 1 (C.A.), affd. [1996] 1 S.C.R. 469; 197 N.R. 32; 75 B.C.A.C. 239; 123 W.A.C. 239, refd to. [para. 59].

United States of America et al. v. J.H.K. (2002), 160 O.A.C. 148 (C.A.), leave to appeal denied (2003), 312 N.R. 198 (S.C.C.), refd to. [para. 59].

Gwynne v. Minister of Justice (Canada) (1998), 103 B.C.A.C. 1; 169 W.A.C. 1; 50 (C.A.), leave to appeal refused (1998), 227 N.R. 298; 120 B.C.A.C. 87; 196 W.A.C. 87 (S.C.C.), refd to. [para. 59].

Argentina (Republic) v. Mellino, [1987] 1 S.C.R. 536; 76 N.R. 51; 80 A.R. 1, refd to. [para. 60].

Counsel:

Avocats:

Brian H. Greenspan and Jill D. Makepeace, for the appellant;

Jacqueline Palumbo, for the respondent.

This application was heard on May 20, 2015, by Richard, Quigg, and Baird, JJ.A., of the New Brunswick Court of Appeal. Quigg, J.A., delivered the following reasons for judgment for the court, in both official languages, on October 1, 2015.

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3 practice notes
  • Logan v. Canada (Attorney General), (2015) 441 N.B.R.(2d) 78 (CA)
    • Canada
    • New Brunswick Court of Appeal (New Brunswick)
    • May 20, 2015
    ...committal order and applied for judicial review of the surrender order. The New Brunswick Court of Appeal, in a decision reported at 441 N.B.R.(2d) 29; 1152 A.P.R. 29 , dismissed the application for judicial review of the surrender The New Brunswick Court of Appeal dismissed the appeal fro......
  • Lunn v. Canada (Minister of Justice), (2016) 374 N.S.R.(2d) 295 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • April 13, 2016
    ...where Canadian courts have seen fit to interfere in a Minister's surrender decision. For example, in Logan v. United States of America , 2015 NBCA 59, Quigg, J.A. succinctly describes the types of situations that might prompt a court to act: 33 Setting aside a Minister's Surrender Order on ......
  • Canada (Attorney General) on behalf of the United States of America v Tyndall,
    • Canada
    • Court of Appeal (Alberta)
    • March 15, 2021
    ...jeopardy, the offence must be the same in both fact and law; that does not appear to be the case here: Logan v United States of America, 2015 NBCA 59, leave to appeal refused, citing United States v Andrews, [1991] MJ No 323 (MBCA). [64] Further, the Minister’s decision on the issue of doub......
3 cases
  • Logan v. Canada (Attorney General), (2015) 441 N.B.R.(2d) 78 (CA)
    • Canada
    • New Brunswick Court of Appeal (New Brunswick)
    • May 20, 2015
    ...committal order and applied for judicial review of the surrender order. The New Brunswick Court of Appeal, in a decision reported at 441 N.B.R.(2d) 29; 1152 A.P.R. 29 , dismissed the application for judicial review of the surrender The New Brunswick Court of Appeal dismissed the appeal fro......
  • Lunn v. Canada (Minister of Justice), (2016) 374 N.S.R.(2d) 295 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • April 13, 2016
    ...where Canadian courts have seen fit to interfere in a Minister's surrender decision. For example, in Logan v. United States of America , 2015 NBCA 59, Quigg, J.A. succinctly describes the types of situations that might prompt a court to act: 33 Setting aside a Minister's Surrender Order on ......
  • Canada (Attorney General) on behalf of the United States of America v Tyndall,
    • Canada
    • Court of Appeal (Alberta)
    • March 15, 2021
    ...jeopardy, the offence must be the same in both fact and law; that does not appear to be the case here: Logan v United States of America, 2015 NBCA 59, leave to appeal refused, citing United States v Andrews, [1991] MJ No 323 (MBCA). [64] Further, the Minister’s decision on the issue of doub......

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