R. et al. v. Larosa (N.), (2002) 163 O.A.C. 108 (CA)

• Judge: Doherty, Goudge and MacPherson, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 30, 2002
• Jurisdiction: Ontario
• Citations: (2002), 163 O.A.C. 108 (CA);2002 CanLII 45027 (NS CA);2002 CanLII 45027 (ON CA);166 CCC (3d) 449;[2002] OJ No 3219 (QL);163 OAC 108;55 WCB (2d) 52;98 CRR (2d) 210

R. v. Larosa (N.) (2002), 163 O.A.C. 108 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. AU.035

Nunzio Larosa (appellant) v. Her Majesty the Queen and The United States of America (respondents)

(C35440; C35467; M27775)

Indexed As: R. et al. v. Larosa (N.)

Ontario Court of Appeal

Doherty, Goudge and MacPherson, JJ.A.

August 22, 2002.

Summary:

The accused was charged with various drug related offences. The United States requested his extradition on drug charges. The Crown stayed the Canadian charges. A motions judge (Watt, J.) dismissed the accused's motion to set aside the stay proceedings and reinstate the Canadian charges. A motions judge (O'Driscoll, J.), dismissed the accused's motion to stay the extradition proceedings and ordered the accused committed to await surrender to the United States. The accused appealed the above orders and sought the production of documents and/or the compelling of testimony from certain witnesses.

The Ontario Court of Appeal dismissed the appeals and part of the motion. The court adjourned the rest of the motion to the hearing of a pending judicial review application.

Civil Rights - Topic 660.4

Liberty - Limitations on - Extradition - The accused was charged with various drug related offences - The United States requested his extradition on drug charges - The Crown stayed the Canadian charges - A motions judge dismissed the accused's motion to set aside the stay proceedings and reinstate the Canadian charges - The Ontario Court of Appeal dismissed the accused's appeal - The court rejected the accused's argument that he had a constitutional right (Charter, s. 7) to have his criminal trial proceed to completion unless "permanently terminated" - Section 7 was engaged when there was some interference or potential interference with the life, liberty or security of the person - The Crown's stay of proceedings had the opposite effect on the accused's liberty interests - There was no longer a contest between the accused and the Canadian state - See paragraphs 37 to 41.

Extradition - Topic 22

General - Bars to extradition - Abuse of process - The accused was charged with various drug related offences - The United States requested his extradition on drug charges - The Crown stayed the Canadian charges - The accused argued that the Crown manipulated the Canadian criminal proceedings by inducing a co-accused to elect trial by judge and jury and subsequently preferred a direct indictment to prevent the accused from proceeding to trial in the Provincial Division - The alleged motive was so as to maintain the viability of the extradition option - Therefore, the Crown abused the processes of the court and disentitled itself from access to the extradition process - The Ontario Court of Appeal rejected the argument - The Attorney General's power to enter a stay would have been the same had the matter proceeded by way of trial in the Provincial Division - See paragraphs 64 and 65.

Extradition - Topic 1403

Jurisdiction - Courts - Charter issues - The accused was charged with various drug related offences - The United States requested his extradition on drug charges - The Crown stayed the Canadian charges - A motions judge dismissed the accused's motion to stay the extradition proceedings on the basis that the extradition proceedings amounted to an abuse of the court's process and/or a violation of his s. 7 Charter rights - The Ontario Court of Appeal held that the motions judge erred in finding that s. 25 of the Extradition Act did not give him jurisdiction to consider the accused's claims - See paragraphs 45 to 53.

Extradition - Topic 3904

Practice - Appeals - Stay of proceedings - [See Civil Rights - Topic 660.4 ].

Extradition - Topic 3905

Practice - Appeals - Jurisdiction - The accused was charged with various drug related offences - The United States requested his extradition on drug charges - The Crown stayed the Canadian charges - A motions judge dismissed the accused's motion to set aside the stay proceedings and reinstate the Canadian charges - The accused appealed - The Ontario Court of Appeal dismissed the appeal - The court characterized the accused's motion as a request that the motions judge exercise his jurisdiction under s. 24(1) of the Charter as a trial judge and stated that it was not appealable to it (i.e. interlocutory appeal) - See paragraphs 32 to 37.

Extradition - Topic 3906

Practice - Appeals - Evidence (incl. fresh evidence) - The Ontario Court of Appeal stated that its jurisdiction to receive evidence on extradition appeals and judicial reviews from the Minister's surrender order was largely undeveloped - The court discussed the approach it should take when an appellant sought production of documents and compelled testimony in aid of this court's original jurisdiction to receive evidence in extradition matters - See paragraph 75.

Extradition - Topic 3906

Practice - Appeals - Evidence (incl. fresh evidence) - An accused, inter alia, appealed an order committing him for surrender to allow his extradition to the United States and also sought judicial review of the Minister's decision to surrender him to the American authorities - He argued that his extradition amounted to an abuse of process or a violation of his s. 7 Charter rights - He sought to compel the production of documents and to compel certain individuals to give evidence - The Ontario Court of Appeal stated that "before ordering the production of documents and compelling testimony in support of allegations of state misconduct, this court should be satisfied that the following three criteria have been met by the applicant: the allegations must be capable of supporting the remedy sought; there must be an air of reality to the allegations; and it must be likely that the documents sought and the testimony sought would be relevant to the allegations." - See paragraph 76.

Extradition - Topic 3906

Practice - Appeals - Evidence (incl. fresh evidence) - An accused, inter alia, appealed an order committing him for surrender to allow his extradition to the United States - He argued that his extradition amounted to an abuse of process or a violation of his s. 7 Charter rights - He sought to compel the production of documents and to compel certain individuals to give evidence - The Ontario Court of Appeal dismissed the motion - See paragraphs 69 and 84.

Extradition - Topic 3943

Practice - Judicial review - Evidence (incl. fresh evidence) - [See first and second Extradition - Topic 3906 ].

Cases Noticed:

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 29 D.L.R.(4th) 161; 26 C.C.C.(3d) 481, refd to. [para. 35].

R. v. Meltzer and Laison, [1989] 1 S.C.R. 1764; 96 N.R. 391; 49 C.C.C.(3d) 453; 70 C.R.(3d) 383, refd to. [para. 35].

R. v. Druken (J.K.) (1998), 228 N.R. 1; 166 Nfld. & P.E.I.R. 107; 511 A.P.R. 107; 126 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 35].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277; 61 C.C.C.(3d) 300; 2 C.R.(4th) 53, refd to. [para. 40].

Canada (Attorney General) v. Filmer, P.C.J., et al. (1992), 21 B.C.A.C. 141; 37 W.A.C. 141; 79 C.C.C.(3d) 70 (C.A.), leave to appeal dismissed [1993] S.C.C.A. No. 7 (S.C.C.), refd to. [para. 41].

R. v. Smith - see Canada (Attorney General) v. Filmer, P.C.J., et al.

United States of America v. Kwok (2001), 267 N.R. 310; 145 O.A.C. 36; 152 C.C.C.(3d) 225 (S.C.C.), refd to. [para. 47, footnote 3].

United States of America v. Cobb et al. (1999), 125 O.A.C. 122; 139 C.C.C.(3d) 283 (C.A.), refd to. [para. 47].

United States of America v. Cobb et al. (2001), 267 N.R. 203; 145 O.A.C. 3; 152 C.C.C.(3d) 270 (S.C.C.), refd to. [para. 48].

United States of America v. Shulman (2001), 268 N.R. 115; 145 O.A.C. 201; 152 C.C.C.(3d) 294 (S.C.C.), refd to. [para. 48, footnote 4].

United States of America v. Leon (1996), 195 N.R. 228; 90 O.A.C. 217; 105 C.C.C.(3d) 385 (S.C.C.), affing. (1995), 77 O.A.C. 313; 96 C.C.C.(3d) 568 (C.A.), refd to. [para. 60].

United States of America v. Whitley, [1996] 1 S.C.R. 467; 197 N.R. 169; 91 O.A.C. 121; 104 C.C.C.(3d) 447, affing. (1994), 75 O.A.C. 100; 94 C.C.C.(3d) 99 (C.A.), refd to. [para. 60].

R. v. Beaudry, [1967] 1 C.C.C. 272 (B.C.C.A.), refd to. [para. 65].

R. v. Durette et al. (1992), 54 O.A.C. 81; 72 C.C.C.(3d) 421 (C.A.), revd. [1994] 1 S.C.R. 469; 163 N.R. 321; 70 O.A.C. 1; 88 C.C.C.(3d) 1, refd to. [para. 79].

United States of America et al. v. Vreeland, [2002] O.T.C. 168; 164 C.C.C.(3d) 266 (Sup. Ct.), refd to. [para. 80].

Counsel:

Paul Slansky, for the appellant;

Bradley Reitz, for the respondents.

These matters were heard on May 30, 2002, before Doherty, Goudge and MacPherson, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., delivered the following judgment on August 22, 2002.