Scarpitti v. United States of America, (2007) 247 B.C.A.C. 234 (CA)

• Judge: Finch, C.J.B.C., Donald and Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 18, 2007
• Jurisdiction: British Columbia
• Citations: (2007), 247 B.C.A.C. 234 (CA);2007 BCCA 498

Scarpitti v. USA (2007), 247 B.C.A.C. 234 (CA);

    409 W.A.C. 234

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. OC.043

Michael James Scarpitti also known as Tre Arrow, Joshua Murray, Matthew Hill, John Pierce and "Ridge" (appellant) v. The Attorney General of Canada On Behalf of the United States of America (respondent)

And On Appeal from the Decision of the Minister of Justice, the Honourable Vic Toews, on April 24, 2006 at Ottawa, Ontario

Michael James Scarpitti (appellant) v. Canada (Minister of Justice) and Canada (Minister of Citizenship and Immigration) (respondents)

(CA033216; 2007 BCCA 498)

Indexed As: Scarpitti v. United States of America

British Columbia Court of Appeal

Finch, C.J.B.C., Donald and Smith, JJ.A.

October 19, 2007.

Summary:

Arrow appealed from an order of the British Columbia Supreme Court committing him for extradition to the United States for trial on charges in the state of Oregon. Arrow also applied for judicial review of an order of the Minister of Justice which surrendered him to the United States.

The British Columbia Court of Appeal dismissed the appeal and the application for judicial review.

Editor's Note: In 2000, Michael Scarpitti changed his name to Tre Arrow. He is referred to as Arrow in this headnote.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - The United States requested Arrow's extradition on multiple charges in the state of Oregon - A committal order was made and the Minister of Justice made an order for surrender - Arrow applied for judicial review of the surrender order, arguing that it was made in a manner which violated his right to procedural fairness and the principles of fundamental justice guaranteed by s. 7 of the Charter - Arrow relied on Singh v. M.E.I. (S.C.C.) as support for his argument that the duty of procedural fairness required the granting of an oral hearing as part of his application to seek refugee status - The British Columbia Court of Appeal rejected Arrow's argument - The test established in Singh, which dealt with the procedural requirements for the adjudication of refugee status claims, did not apply - The processing of Arrow's refugee claim had been suspended by s. 105 of the Immigration and Refugee Protection Act as a result of the issuance of the authority to proceed in the extradition proceedings - At that point, the process mandated by the Extradition Act was engaged - Arrow had an oral hearing during the committal stage of the extradition process - The denial of an oral hearing during the surrender stage was not a denial of procedural fairness, provided that Arrow had a reasonable opportunity to state his case through written submissions - See paragraphs 50 to 56.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - The United States requested Arrow's extradition on multiple charges in the state of Oregon - A committal order was made and the Minister of Justice made an order for surrender - Arrow applied for judicial review of the surrender order - Arrow argued that he was denied the procedural fairness required by s. 7 of the Charter, to the extent that he did not have a meaningful opportunity to consider or respond to the case summary prepared by the Minister of Citizenship and Immigration, which was referred to in the Minister's decision on surrender - The British Columbia Court of Appeal rejected the argument - Arrow was afforded and availed himself of the opportunity to provide additional comments to the Minister in relation to the Summary - The court was satisfied that Arrow had adequate disclosure of the case against him and a reasonable opportunity to state his own case and that he was afforded procedural fairness as required by s. 7 of the Charter - See paragraphs 57 to 61.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - [See Extradition - Topic 3344 and first Extradition - Topic 3365 ].

Extradition - Topic 4

Role of Minister (incl. duty of fairness) - [See first and second Civil Rights - Topic 3129 ].

Extradition - Topic 23

Bars to extradition - Charter breaches - [See first and second Civil Rights - Topic 3129 , Extradition - Topic 3344 and first Extradition - Topic 3365 ].

Extradition - Topic 2645

Evidence and procedure before examining judge - Evidence - General - Admissibility - The United States requested Arrow's extradition on multiple counts of arson and related charges in the state of Oregon - An order of the British Columbia Supreme Court committed Arrow for extradition - Arrow appealed from the committal order - Arrow argued that the court should exclude the evidence of his alleged co-conspirators as being "manifestly unreliable" on the basis that the three individuals had agreed to testify against Arrow as the result of plea agreements reached with U.S. authorities - The British Columbia Court of Appeal rejected the argument - There was no "air of reality" to the claim that the evidence of the alleged co-conspirators was "manifestly unreliable" - The points raised by Arrow went to credibility - They fell well short of weakening the case to the extent that committal should be refused - See paragraphs 36 to 43.

Extradition - Topic 2658

Evidence and procedure before examining judge - Evidence - General - Evidence required to ground proceedings - The United States requested Arrow's extradition on multiple counts of arson and related charges in the state of Oregon - An order of the British Columbia Supreme Court committed Arrow for extradition - Arrow appealed from the committal order - The British Columbia Court of Appeal dismissed the appeal - A properly instructed jury acting reasonably could, on the evidence presented, convict Arrow of arson and the other acts alleged in the authority to proceed - See paragraphs 44 to 49.

Extradition - Topic 3342

Surrender to demanding country - Conditions precedent - That surrender not be unjust or oppressive - [See Extradition - Topic 3344 ].

Extradition - Topic 3344

Surrender to demanding country - Conditions precedent - Imposition of conditions - The United States requested Arrow's extradition on multiple charges in the state of Oregon - A committal order was made and the Minister of Justice made an order for surrender - Arrow applied for judicial review of the surrender order - Arrow argued that surrender without an assurance that he would be provided with a raw vegan diet as a condition of his surrender was contrary to s. 7 of the Charter, or "unjust or oppressive" within the meaning of s. 44(1)(a) of the Extradition Act - The Minister had concluded that it was not necessary to seek an assurance that Arrow would be provided with a raw vegan diet as the Requesting State had stated its intention to do its best to accommodate Arrow's dietary needs - The British Columbia Court of Appeal held that there was no basis to interfere with the Minister's decision to surrender Arrow without assurances - On the basis of the information provided by the Requesting State, the Minister concluded that his refusal to seek an assurance with respect to Arrow's dietary needs would not make his surrender "shocking to the Canadian conscience" or "unjust or oppressive" - See paragraphs 63 to 68.

Extradition - Topic 3365

Surrender to demanding country - Considerations - Pending refugee claim - The United States requested Arrow's extradition on multiple charges in the state of Oregon - A committal order was made and the Minister of Justice made an order for surrender - Arrow applied for judicial review of the surrender order - As part of his application for judicial review, Arrow challenged the constitutionality of s. 105 of the Immigration and Refugee Protection Act (IRPA), which provided that a person's refugee claim was deemed to be rejected if the person was ordered surrendered under the Extradition Act - Arrow argued that s. 105 violated s. 7 of the Charter because it resulted in the final determination of his refugee claim without an oral hearing - The British Columbia Court of Appeal stated that the issue had been addressed in U.S.A. v. Maydak (B.C.C.A.) - In that case, the court held that the extradition process provided sufficient procedural safeguards to satisfy the requirements of the Charter and that the lack of an oral hearing did not in and of itself constitute a breach of s. 7, provided that the appellant had had full disclosure and a full opportunity to respond to the allegations against him - The extradition process followed in Arrow's case was consistent with the Charter and the principles of natural justice - His surrender did not violate s. 7 of the Charter - The court concluded that in these circumstances, for the reasons provided in Maydak, it was neither necessary nor appropriate to consider whether s. 105 of the IRPA was contrary to the Charter - See paragraphs 69 to 74.

Extradition - Topic 3365

Surrender to demanding country - Considerations - Pending refugee claim - [See first Civil Rights - Topic 3129 ].

Extradition - Topic 3803

Practice - General - Disclosure - The United States requested Arrow's extradition on multiple counts of arson and related charges in the state of Oregon - An order of the British Columbia Supreme Court committed Arrow for extradition - Arrow appealed from the committal order and he sought disclosure of all correspondence and documents, including cooperation agreements, between the U.S. government and his alleged co-conspirators - Arrow argued that the fact that the guilty pleas tendered by his co-conspirators were made because of plea agreements rendered them unreliable - He sought disclosure of the documents in order to demonstrate that there had been improper communication between the U.S. government and the alleged co-conspirators, and that he had been unfairly targeted with false allegations - The British Columbia Court of Appeal dismissed the application for disclosure - There was no air of reality to the allegations that the co-conspirators falsely implicated Arrow in order to obtain plea agreements - There was no evidence of any improper communication between the U.S. government and the co-conspirators - See paragraphs 21 to 28.

Extradition - Topic 3901

Practice - Appeals - General - The United States requested Arrow's extradition on multiple charges in the state of Oregon - An order of the British Columbia Supreme Court committed Arrow for extradition - After the committal order was made, the Supreme Court of Canada concurrently released decisions in the Ferras and Ortega cases - The decision in Ferras modified the test for extradition previously set out in U.S.A. v. Shephard - Arrow appealed from the committal order - He argued that, in light of Ferras, the committal order should be re-evaluated by a judge exercising the discretion set out in that case - The British Columbia Court of Appeal held that the appropriate course in this case was for the court to review the evidence in light of the new rule - The court stated that there were two questions for it to decide with respect to the committal order - The first was whether Arrow's argument on appeal that the committal evidence (and specifically, the evidence of his co-conspirators) was "manifestly unreliable" would have made any difference in this case had the extradition judge been able to consider that issue - The second issue was whether the evidence that survived scrutiny would form a sufficient basis on which a properly instructed jury acting reasonably could reach a verdict of guilty in Canada - See paragraphs 29 to 35.

Cases Noticed:

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. 19].

United States of America v. Latty - see United States of America et al. v. Ferras.

United Mexican States v. Ortega, [2006] 2 S.C.R. 120; 351 N.R. 52; 227 B.C.A.C. 317; 374 W.A.C. 317; 2006 SCC 34, refd to. [para. 19].

United States of America v. Fiessel - see United Mexican States v. Ortega.

R. et al. v. Larosa (N.) (2002), 163 O.A.C. 108; 166 C.C.C.(3d) 449 (C.A.), refd to. [para. 25].

United States of America v. Freimuth, [2004] B.C.T.C. 154; 183 C.C.C.(3d) 296 (S.C.), refd to. [para. 27].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215; 30 C.C.C.(2d) 424, refd to. [para. 29].

United States of America v. Thomlison (2007), 219 O.A.C. 322; 216 C.C.C.(3d) 97; 2007 ONCA 42, refd to. [para. 30].

United States of America et al. v. Prudenza et al. (2007), 219 O.A.C. 369; 2007 ONCA 84, refd to. [para. 30].

United States of America v. Anderson - see United States of America et al. v. Prudenza et al.

United States of America v. Graham (2007), 243 B.C.A.C. 248; 401 W.A.C. 248; 2007 BCCA 345, refd to. [para. 31].

Italy v. Seifert (2007), 246 B.C.A.C. 46; 406 W.A.C. 46; 2007 BCCA 407, refd to. [para. 34].

R. v. Vetrovec; R. v. Gaja (1982), 41 N.R. 606; 67 C.C.C.(2d) 1 (S.C.C.), refd to. [para. 41].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 45].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 52].

Whitley v. United States of America (1994), 75 O.A.C. 100; 20 O.R.(3d) 794 (C.A.), refd to. [para. 54].

United States of America v. Burns and Rafay (2001), 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 151 C.C.C.(3d) 97; 2001 SCC 7, refd to. [para. 63].

United States of America v. Fordham (2005), 211 B.C.A.C. 195; 349 W.A.C. 195; 196 C.C.C.(3d) 39 (C.A.), refd to. [para. 63].

Thailand (Kingdom) v. Saxena (2006), 224 B.C.A.C. 43; 370 W.A.C. 43; 207 C.C.C.(3d) 106 (C.A.), refd to. [para. 65].

Gervasoni v. Canada (Minister of Justice) (1996), 72 B.C.A.C. 141; 119 W.A.C. 141 (C.A.), refd to. [para. 67].

United States of America v. Maydak (2004), 203 B.C.A.C. 60; 332 W.A.C. 60; 190 C.C.C.(3d) 71 (C.A.), refd to. [para. 70].

Counsel:

J.J. Blazina, for the appellant;

J.G. Johnston, for the respondent, Attorney General of Canada on behalf of the United States of America and the Minister of Justice of Canada;

K. Reimer, for the respondent, Attorney General of Canada on behalf of the Minister of Citizenship and Immigration Canada.

This appeal and application were heard on April 18, 2007, at Vancouver, British Columbia, before Finch, C.J.B.C., Donald and Smith, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Finch, C.J.B.C., on October 19, 2007.