Logan v. Canada (Attorney General), (2015) 441 N.B.R.(2d) 78 (CA)

• Judge: Richard, Quigg and Baird, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: May 20, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 441 N.B.R.(2d) 78 (CA);2015 NBCA 60

Logan v. Can. (A.G.) (2015), 441 N.B.R.(2d) 78 (CA);

    441 R.N.-B.(2e) 78; 1152 A.P.R. 78

MLB headnote and full text

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.010

Renvoi temp.: [2015] N.B.R.(2d) TBEd. OC.010

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

(97-14-CA; 2015 NBCA 60)

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. 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) 29; 1152 A.P.R. 29, dismissed the application for judicial review of the surrender order.

The New Brunswick Court of Appeal dismissed the appeal from the committal 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 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - 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 WAPPRIITA) - 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 - Logan applied for a stay of the extradition proceedings, asserting that they were abusive - An extradition judge denied a stay and committed Logan for extradition - Logan appealed, asserting that he pleaded guilty in Canada after being misled that his plea would preclude any chance of his extradition to the Unites States and the judge erred in concluding that there was no evidence of mala fides or other abuse by the Canadian authorities - The New Brunswick Court of Appeal dismissed the appeal, stating that "In summary, the case before us involves cross-border criminal activity which gives rise to overlapping prosecutorial jurisdictions. Both the Canadian and U.S. authorities have conducted lawful investigations of Mr. Logan's alleged cross-border criminality, have laid charges in accordance with their respective laws, and have pursued those charges in good faith. There is no basis to conclude that Mr. Logan has been prejudiced or subjected to unfair treatment. By January 2013, he was in possession of a copy of the U.S. Indictment. He knew that he faced jeopardy in the United States nine months prior to entering his guilty plea in Canada. Even with that knowledge, Mr. Logan declined to make inquiries to the United States regarding what, if any, legal risk he faced in that country prior to resolving the Canadian charges under the WAPPRIITA. Mr. Logan also declined to ask the Canadian sentencing judge to apply s. 725(1)(c) of the Criminal Code, to 'consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge'. ... In the absence of evidence of misconduct, Mr. Logan asks this Court to infer an abuse of process in relation to the actions of the Canadian authorities. Allegations of abuse by state actors are grave matters and should not be given any credence without proof. Having concluded that there was no evidence of abusive conduct on the part of the Canadian authorities, the extradition judge was entitled to assume that they acted properly and not for any improper or arbitrary motives. It follows that the extradition judge made no error in finding that the onerous threshold that might warrant a stay of the extradition proceedings was not met in this case. ... Mr. Logan's assertions amount to a claim of double jeopardy. Double jeopardy is within the exclusive authority of the Minister to consider in deciding whether to order surrender. The Minister's lawful, and discretionary, decision is not a basis upon which to stay the extradition proceedings as abusive." - See paragraphs 28 to 30.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - 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 - 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 - Logan applied for a stay of the extradition proceedings, asserting that they were abusive - An extradition judge denied a stay and committed Logan for extradition to the United States - Logan appealed, asserting that the judge erred in finding that Logan's claim of double jeopardy did not engage his limited Charter jurisdiction to stay the extradition proceedings - The New Brunswick Court of Appeal dismissed the appeal, holding that "... the extradition judge properly found that the double jeopardy concerns raised by Mr. Logan did not engage his jurisdiction to grant a stay of the extradition proceedings on the residual category of abuse of process. In other words, the integrity of the court's process was not at risk because of Mr. Logan's possible exposure to double jeopardy in the United States. Claims of double jeopardy are not uncommon in the extradition context ... Extradition cases, by their very nature, often involve trans-border crimes which may result in overlapping domestic and foreign prosecutorial jurisdictions. In response to this reality, the extradition regime in Canada incorporates protections against double jeopardy. However, Parliament has expressly assigned to the Minister the duty to assess double jeopardy claims. ... For this reason, there is no legal precedent for an extradition judge to grant a stay of the extradition proceedings on the basis of a claim of double jeopardy. Ordering a stay in the circumstances of this case would have constituted a fundamental departure from pre- and post-Khadr jurisprudence [Canada (Attorney General) v. Khadr (2011, Ont. C.A.)] on this issue, and would have expanded the Charter abuse jurisdiction of the extradition judges well beyond that endorsed in Khadr. I therefore find no error in the extradition judge's decision." - See paragraph 31.

Civil Rights - Topic 3764

Punishment - General - Double punishment prohibited - [See both Civil Rights - Topic 3157.4 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See both Civil Rights - Topic 3157.4 ].

Extradition - Topic 22

General - Bars to extradition - Abuse of process - [See both Civil Rights - Topic 3157.4 ].

Extradition - Topic 1403

Jurisdiction - Courts - Charter issues - [See second Civil Rights - Topic 3157.4 ].

Extradition - Topic 2747

Evidence and procedure before examining judge - Defences - Res judicata (incl. autrefois acquit and autrefois convict) - [See both Civil Rights - Topic 3157.4 ].

Extradition - Topic 3809

Practice - General - Stay of proceedings - [See both Civil Rights - Topic 3157.4 ].

Cases Noticed:

Canada (Attorney General) v. Khadr (2011), 280 O.A.C. 210; 273 C.C.C.(3d) 55; 2011 ONCA 358, leave to appeal refused (2011), 429 N.R. 397; 294 O.A.C. 397 (S.C.C.), refd to. [para. 6].

United States of America et al. v. Ferras, [2006] 2 S.C.R. 77; 351 N.R. 1; 214 O.A.C. 326; 2006 SCC 33, refd to. [para. 15].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 15].

United States of America v. Thomlison (2007), 219 O.A.C. 322; 216 C.C.C.(3d) 97; 2007 ONCA 42, refd to. [para. 15].

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. 15].

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. 15].

Canada (Attorney General) v. Qumsyeh, [2012] O.T.C. Uned. 5987; 2012 ONSC 5987, refd to. [para. 15].

United States of America v. Drysdale et al., [2000] O.T.C. 72 (Sup. Ct.), refd to. [para. 15].

Bouarfa v. Canada (Minister of Justice), 2012 QCCA 1378, refd to. [para. 15].

United States of America v. McVey, [1992] 3 S.C.R. 475; 144 N.R. 81; 16 B.C.A.C. 241; 28 W.A.C. 241, refd to. [para. 15].

Canada (Attorney General) v. Chang, [2006] O.T.C. 462 (Sup. Ct.), refd to. [para. 15].

United States of America v. Chang - see Canada (Attorney General) v. Chang.

Germany (Federal Republic) v. Schreiber, [2000] O.J. No. 2618 (Sup. Ct.), refd to. [para. 15].

United States of America v. Cobb et al., [2001] 1 S.C.R. 587; 267 N.R. 203; 145 O.A.C. 3; 2001 SCC 19, refd to. [para. 17].

Lane v. Canada (Attorney General) (2014), 323 O.A.C. 142; 121 O.R.(3d) 721; 2014 ONCA 506, refd to. [para. 18].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 20].

Canada (Attorney General) v. Zajicek (2012), 289 O.A.C. 4; 2012 ONCA 99, refd to. [para. 22].

United States of America v. Tollman, 2006 OJC 2672, refd to. [para. 22].

Liang v. Canada (Attorney General), 2007 ONCA 741, leave to appeal denied (2007), 385 N.R. 399 (S.C.C.), refd to. [para. 27].

France v. Liang - see Liang v. Canada (Attorney General).

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161, refd to. [para. 31].

Canada (Attorney General) et al. v. Qumsyeh, [2015] O.A.C. Uned. 530; 2015 ONCA 551, refd to. [para. 31].

Counsel:

Avocats:

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

Jacqueline Palumbo, for the respondent.

This appeal 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 judgment in both official languages for the court on October 1, 2015.