Thailand (Kingdom) v. Saxena, (2006) 224 B.C.A.C. 43 (CA)

• Judge: Finch, C.J.B.C., Low and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 02, 2006
• Jurisdiction: British Columbia
• Citations: (2006), 224 B.C.A.C. 43 (CA);2006 BCCA 98

Thailand v. Saxena (2006), 224 B.C.A.C. 43 (CA);

    370 W.A.C. 43

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. MR.026

On appeal from the Supreme Court of British Columbia from the Order of Committal of the Honourable Mr. Justice Maczko pronounced the 15th day of September, 2000 at Vancouver, British Columbia

The Attorney General of Canada on behalf of The Kingdom of Thailand (respondent/requesting state and applicant) v. Rakesh Saxena (appellant/fugitive and respondent)

(CA027749)

On judicial review from the decision of the Honourable Martin Cauchon, Minister of Justice of Canada, pronounced the 18th day of November, 2003 at Ottawa, Ontario and

On judicial review from the decision of the Honourable Irwin Cotler, Minister of Justice of Canada, pronounced the 6th day of September, 2005 at Ottawa, Ontario and

On judicial review from the decision of the Honourable Irwin Cotler, Minister of Justice of Canada, pronounced the 1st day of December, 2005 at Ottawa, Ontario

Rakesh Saxena (applicant/fugitive) v. Minister of Justice and Attorney General of Canada (respondent/Minister)

(CA031462)

(2006 BCCA 98)

Indexed As: Thailand (Kingdom) v. Saxena

British Columbia Court of Appeal

Finch, C.J.B.C., Low and Lowry, JJ.A.

March 3, 2006.

Summary:

The Kingdom of Thailand sought to extradite Saxena from Canada so that he could be charged and tried for crimes in the nature of commercial fraud that he was said to have committed in Thailand. The British Columbia Supreme Court committed Saxena for surrender (see [2000] B.C.T.C. 672) and the Minister of Justice ordered his surrender to Thailand. Saxena appealed from the order of committal, arguing that the sections of the Extradition Act under which evidence was tendered at the extradition hearing offended s. 7 of the Charter. Saxena also brought three applications for judicial review with respect to the Minister's surrender order and his decisions confirming that order. Saxena argued that his surrender to Thailand offended his s. 7 Charter rights because: (1) if he was returned to Thailand there was a substantial risk that he would be denied a fair trial, subjected to inhumane prison conditions, tortured, or killed, and no reliance could be placed on assurances that had been obtained from Thailand in that regard; and (2) neither the extradition court that issued the committal order nor the Minister had made any determination that he could actually be prosecuted under the law of Thailand. Saxena also argued that he was denied procedural fairness in that he was refused disclosure of information in relation to the Minister's consideration of his concerns about mistreatment and the applicability of Thai law.

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

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - The Kingdom of Thailand sought to extradite Saxena from Canada - A committal order was made and the Minister of Justice ordered Saxena's surrender to Thailand - Saxena applied for judicial review of the Minister's surrender order and his decisions confirming that order - Saxena argued that his surrender to Thailand offended his s. 7 Charter rights because if he was returned to Thailand there was a substantial risk that he would be denied a fair trial, subjected to inhumane prison conditions, tortured, or killed - He further argued that no reliance could be placed on assurances which the Minister had obtained from Thailand in that regard and that Canada had no effective means of enforcing such assurances - The British Columbia Court of Appeal held that the Minister's decision to surrender Saxena with the assurances that he had was not patently unreasonable - See paragraphs 41 to 58.

Extradition - Topic 4

Role of Minister - The Kingdom of Thailand sought to extradite Saxena from Canada so that he could be charged and tried for crimes that he was said to have committed in Thailand - A committal order was made and the Minister of Justice ordered that Saxena be surrendered to Thailand - Thailand proposed to prosecute Saxena under its Penal Code and its Securities and Exchange Act (SEA) - The charges contemplated under the Penal Code had become time-barred and Saxena had provided the Minister with a legal opinion that the SEA was not applicable to him - The Minister took the view that the applicability of the Thai statute was a matter of Thai law to be determined by a court in Thailand - The British Columbia Court of Appeal held that the Minister made no error in declining to consider Thai law - The monitoring of compliance with the extradition Treaty by the executive did not extend to requiring the Minister to consider Thai law with a view to determining whether Saxena could be prosecuted under the SEA - That would be a matter for the judge before whom Saxena would be tried in Thailand - See paragraphs 59 to 76.

Extradition - Topic 23

Bars to extradition - Charter breaches - [See Civil Rights - Topic 3129 ].

Extradition - Topic 2643.2

Evidence and procedure before examining judge - Evidence - General - Cross-examination - The Kingdom of Thailand sought to extradite Saxena from Canada so that he could be charged and tried for crimes that he was said to have committed in Thailand - The British Columbia Supreme Court committed Saxena for surrender and the Minister of Justice ordered that he be surrendered to Thailand - Saxena appealed from the committal order - He argued that the sections of the Extradition Act under which evidence was tendered at the extradition hearing (which was not subjected to cross-examination and would not normally be admissible in a Canadian court) offended s. 7 of the Charter - That was said to be particularly so when no assurance was given that the evidence would be available for trial - The British Columbia Court of Appeal rejected the argument and dismissed the appeal - See paragraphs 14 to 15.

Extradition - Topic 3323

Surrender to demanding country - Consent by surrendering country - Surrender order - Amendment or correction of - The Kingdom of Thailand sought Saxena's extradition from Canada - A committal order was made and the Minister of Justice ordered that Saxena be surrendered to Thailand - The Minister subsequently amended the surrender order - Saxena argued that it was not open to the Minister to amend the surrender order as, unlike the 1999 Extradition Act, which did not apply, the 1985 Extradition Act contained no provision for amending orders - The British Columbia Court of Appeal stated that "if it was not open to the Minister to amend his order before it had been executed, which I doubt, it remains open to this court to remedy what can only be a defect in form or a technical irregularity in the order as originally made under s. 25.2(8) of the Act" - See paragraphs 38 to 39.

Extradition - Topic 3382

Surrender to demanding country - Procedure - Disclosure - The Kingdom of Thailand sought to extradite Saxena from Canada - A committal order was made and the Minister of Justice ordered Saxena's surrender to Thailand - Saxena applied for judicial review of the Minister's surrender order and his decisions confirming that order, arguing that he was denied procedural fairness - Saxena submitted that he was entitled to disclosure of all communications between the Minister and Thailand with respect to the assurances that Thailand had given to the Minister regarding its treatment of Saxena and with respect to the applicability of Thai law - The British Columbia Court of Appeal rejected the argument - Saxena did not establish that there was a real possibility of torture to the satisfaction of the Minister and there was no basis on which it could be said that the Minister was required to afford Saxena the disclosure he sought - Greater disclosure might be afforded when Charter issues arose provided there was an air of reality to the purpose which it was said any further disclosure would serve - However, there was no such air of reality in this case - See paragraphs 77 to 83.

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender - The Kingdom of Thailand sought to extradite Saxena from Canada to be charged and tried for crimes that Saxena was said to have committed in Thailand - A committal order was made and the Minister of Justice ordered Saxena's surrender to Thailand - Saxena applied for judicial review of the Minister's surrender order and his decisions confirming that order - Saxena argued that the Minister's decision to surrender him despite an alleged risk of mistreatment in Thailand was reviewable on a correctness standard because it involved a consideration of his Charter rights - The British Columbia Court of Appeal held that Saxena was challenging a factual determination and that the Minister's decision on the question of any mistreatment which Saxena might be subjected to was reviewable on a standard of patent unreasonableness - See paragraphs 41 to 50.

Cases Noticed:

United Mexican States v. Ortega, [2004] B.C.T.C. 210; 183 C.C.C.(3d) 75; 2004 BCSC 210, revd. (2005), 212 B.C.A.C. 228; 350 W.A.C. 228; 196 C.C.C.(3d) 225; 2005 BCCA 270, leave to appeal granted (2005), 347 N.R. 399 (S.C.C.), refd to. [para. 15].

United States of America v. Turenne (2004), 187 Man.R.(2d) 45; 330 W.A.C. 45; 187 C.C.C.(3d) 375; 2004 MBCA 120, leave to appeal refused [2004] 3 S.C.R. xiv; 338 N.R. 197; 201 Man.R.(2d) 318; 356 W.A.C. 318, refd to. [para. 15].

United States of America v. Gillingham (2004), 201 B.C.A.C. 26; 328 W.A.C. 26; 184 C.C.C.(3d) 97; 2004 BCCA 226, leave to appeal refused [2004] 3 S.C.R. viii; 337 N.R. 199; 216 B.C.A.C. 317; 356 W.A.C. 317, consd. [para. 41].

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. 44].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, consd. [para. 44].

Chahal v. United Kingdom (1996), 23 E.H.R.R. 405 (E.C.H.R.), refd to. [para. 45].

Canada (Minister of Justice) v. Stewart (1998), 117 B.C.A.C. 284; 191 W.A.C. 284; 131 C.C.C.(3d) 423 (C.A.), consd. [para. 47].

Argentina (Republic) v. Mellino, [1987] 1 S.C.R. 536; 76 N.R. 51; 80 A.R. 1; 33 C.C.C.(3d) 334, consd. [para. 49].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81; 67 C.C.C.(3d) 1, consd. [para. 51].

Canada (Minister of Justice) v. Pacificador (2002), 162 O.A.C. 299; 166 C.C.C.(3d) 321; 60 O.R.(3d) 685 (C.A.), leave to appeal refused [2003] 1 S.C.R. xiv; 312 N.R. 195; 180 O.A.C. 399, refd to. [para. 52].

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; 77 C.C.C.(3d) 1, consd. [para. 59].

United States of America v. Lépine, [1994] 1 S.C.R. 286; 163 N.R. 1; 69 O.A.C. 241; 87 C.C.C.(3d) 385, consd. [para. 59].

Schmidt v. Canada et al. (1987), 76 N.R. 12; 20 O.A.C. 161; 33 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 63].

United States of America v. Smith (1984), 15 C.C.C.(3d) 16 (Ont. Co. Ct.), affd. (1984), 16 C.C.C.(3d) 10 (Ont. H.C.), refd to. [para. 65].

Whitley v. United States of America (1994), 75 O.A.C. 100; 94 C.C.C.(3d) 99; 20 O.R.(3d) 794; 119 D.L.R.(4th) 693 (C.A.), affd. (1996), 197 N.R. 169; 91 O.A.C. 121; 104 C.C.C.(3d) 447 (S.C.C.), consd. [para. 81].

United States of America v. Kwok (2001), 267 N.R. 310; 145 O.A.C. 36; 152 C.C.C.(3d) 225; 2001 SCC 18, refd to. [para. 82].

R. et al. v. Larosa (N.) (2002), 163 O.A.C. 108; 166 C.C.C.(3d) 449 (C.A.), refd to. [para. 82].

Statutes Noticed:

Extradition Act, R.S.C. 1985, c. E-23, sect. 25.2(8) [para. 39].

Counsel:

S.R. Chamberlain, Q.C., for the appellant/applicant;

D.J. Strachan and J.G. Johnston, for the respondent.

This appeal was heard on January 30 to February 2, 2006, at Vancouver, British Columbia, before Finch, C.J.B.C., Low and Lowry, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Lowry, J.A., on March 3, 2006.