United States of America v. Cobb et al., (2001) 145 O.A.C. 3 (SCC)

• Judge: McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 24, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2001), 145 O.A.C. 3 (SCC);2001 SCC 19;197 DLR (4th) 46;41 CR (5th) 81;[2001] SCJ No 20 (QL);152 CCC (3d) 270;[2001] 1 SCR 587;145 OAC 3;267 NR 203;81 CRR (2d) 226;JE 2001-784;EYB 2001-23417;49 WCB (2d) 157

USA v. Cobb (2001), 145 O.A.C. 3 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2001] O.A.C. TBEd. AP.003

Harry Cobb and Allen Grossman (appellants) v. The United States of America (respondent)

(27610; 2001 SCC 19)

Indexed As: United States of America v. Cobb et al.

Supreme Court of Canada

McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour, JJ.

April 5, 2001.

Summary:

The accused, Canadian citizens resident in Canada, faced fraud charges in Pennsylvania. The United States applied to extradite the accused. The accused opposed extradition, claiming, inter alia, that their s. 7 Charter rights would be violated if they were extradited because of statements made by the American trial judge and the prosecutor. They also claimed that the United States did not make out a prima facie case and that there was undue delay.

The Ontario Court (General Division), in a decision reported at 42 O.T.C. 288, held that the United States made out a prima facie case. The court dismissed the delay applications. The court held that it had jurisdiction to hear Charter arguments. The court ordered that the extradition proceedings be stayed because the accused had been publicly threatened by the trial judge and the prosecuting attorney in a manner that violated their s. 7 Charter rights. The United States appealed.

The Ontario Court of Appeal, in a decision reported 125 O.A.C. 122, allowed the appeal, set aside the stay and remitted the matter to the General Division. The accused appealed.

The Supreme Court of Canada allowed the appeal and reinstated the stay of the extradition proceedings.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - The United States sought to extradite the accused Canadian citizens for fraud charges - During the sentencing of a co-accused, the American trial judge stated that accused who did not cooperate would receive the maximum sentence - The prosecutor stated, inter alia, that those who waited out their extradition would be "the boyfriend of a very bad man" - The extradition judge held that the United States made out a prima facie case - However, he stayed the extradition proceedings based on the judge's and prosecutor's statements - The Supreme Court of Canada affirmed the stay of proceedings - The statements were an attempt to influence the unfolding of the Canadian judicial proceedings by putting undue pressure on the accused to abandon their objections to extradition - The extradition judge had jurisdiction to control the integrity of the proceedings before him, and to grant a remedy, both at common law and under the Charter, for abuse of process.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - The Supreme Court of Canada noted that prior cases had confirmed that "the Charter applies to extradition proceedings in the sense that the treaty, the extradition hearing in Canada and the exercise of the executive discretion to surrender the fugitive all have to conform to the requirements of the Charter." - The court stated that "the committal judge presides over a judicial hearing and he or she must ensure that the hearing itself is conducted in accordance with the principles of fundamental justice (s. 7)." - The court held that amendments to the Extradition Act expanded the powers of the extradition judge - The court stated that "an extradition judge is therefore competent to grant Charter remedies, including a stay of proceedings, on the basis of a Charter violation but only insofar as the Charter breach pertains directly to the circumscribed issues relevant at the committal stage of the extradition process." - See paragraphs 24 to 26.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - The Supreme Court of Canada stated that "the issue at [the committal stage] is not whether the appellants will have a fair trial if extradited, but whether they are having a fair extradition hearing in light of the threats and inducements imposed upon them, by those involved in requesting their extradition, to force them to abandon their right to such a hearing. The focus of the fairness issue is thus the hearing in Canada, to which the Charter applies, and not the eventual trial in the U.S., which it may be premature to consider pending the Minister's decision on surrender. Conduct by the Requesting State, or by its representatives, agents or officials, which interferes or attempts to interfere with the conduct of judicial proceedings in Canada is a matter that directly concerns the extradition judge." - See paragraph 33.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - The Supreme Court of Canada stated that "section 7 [of the Charter] permeates the entire extradition process and is engaged, although for different purposes, at both stages of the proceedings. After committal, if a committal order is issued, the Minister must examine the desirability of surrendering the fugitive in light of many considerations, such as Canada's international obligations under the applicable treaty and principles of comity, but also including the need to respect the fugitive's constitutional rights. At the committal stage, the presiding judge must ensure that the committal order, if it is to issue, is the product of a fair judicial process. The Requesting State is a party to judicial proceedings before a Canadian court and is subject to the application of rules and remedies that serve to control the conduct of parties who turn to the courts for assistance." - See paragraphs 34 and 35.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - The United States, represented by the Attorney General of Canada, sought to extradite the accused Canadian citizens for fraud charges - The extradition judge held that a prima facie case was made out - However, he stayed the extradition proceedings, holding that the accused's s. 7 Charter rights would be violated if they were extradited because of statements made by the American trial judge and the prosecutor - The Supreme Court of Canada rejected an argument that the Charter was not engaged because the statements were not uttered by Canadian actors - The court stated that "the present appeal is not a case of 'foreign' conduct ... but is conduct attributable to a litigant before a Canadian court. This is sufficient to trigger the application, if not of s. 7 of the Charter, then of the common law doctrine of abuse of process, which, in the circumstances, rests on the same principles and calls for the same remedies." - See paragraph 49.

Civil Rights - Topic 3157.4

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

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - Application of - Territorial limits - [See fifth Civil Rights - Topic 3129 ].

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction (incl. court of competent jurisdiction) - [See second Civil Rights - Topic 3129 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See first Civil Rights - Topic 3129 ].

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process - The Supreme Court of Canada held that the consolidation of the habeas corpus jurisdiction with that of the committal judge under the 1992 amendments to the Extradition Act vested the authority to apply the doctrine of abuse of process in the committal court - See paragraphs 36 to 40.

Extradition - Topic 8

General - Extradition - Application of Charter - [See second, third and fourth Civil Rights - Topic 3129 ].

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 first Civil Rights - Topic 3129 ].

Extradition - Topic 1401

Jurisdiction - Courts - General - [See Courts - Topic 2015 ].

Extradition - Topic 1403

Jurisdiction - Courts - Charter issues - The United States sought to extradite the accused Canadian citizens for fraud charges - The extradition judge held that the United States had made out a prima facie case - However, he stayed the extradition proceedings, holding that the accused's s. 7 Charter rights would be violated if they were extradited because of statements made by the American trial judge and the prosecutor - The United States argued, inter alia, that the concerns raised by the accused should have been dealt with by the Minister at the surrender stage - The Supreme Court of Canada rejected the argument, stating that "the existence of potential remedies at the executive stage does not oust the jurisdiction of the courts to control their own process in cases such as here, where the courts are required to preserve the integrity of their own proceedings" - See paragraphs 41 to 48.

Extradition - Topic 1403

Jurisdiction - Courts - Charter issues - [See first, second, third and fourth Civil Rights - Topic 3129 ].

Cases Noticed:

United States of America v. Kwok (2001), 267 N.R. 310; 145 O.A.C. 36 (S.C.C.), folld. [para. 1].

United States of America v. Shulman (2001), 268 N.R. 115; 145 O.A.C. 201 (S.C.C.), refd to. [para. 1].

United States of America v. Tsioubris (2001), 267 N.R. 201; 145 O.A.C. 1 (S.C.C.), refd to. [para. 1].

United States of America et al. v. Cazzetta (1996), 108 C.C.C.(3d) 536 (Que. C.A.), leave to appeal denied [1996] 3 S.C.R. xiv; 206 N.R. 316, refd to. [para. 13].

United States of America v. Shulman, [1998] O.A.C. Uned. 350; 128 C.C.C.(3d) 475 (C.A.), refd to. [para. 15].

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161, refd to. [para. 24].

United States of America v. Burns and Rafay (2001), 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1 (S.C.C.), refd to. [para. 24].

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321, refd to. [para. 25].

Argentina (Republic) v. Mellino, [1987] 1 S.C.R. 536; 76 N.R. 51; 80 A.R. 1, refd to. [para. 29].

United States of America v. Allard and Charette, [1987] 1 S.C.R. 564; 75 N.R. 260; 8 Q.A.C. 178, refd to. [para. 30].

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; 144 N.R. 327; 59 O.A.C. 241, refd to. [para. 32].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 36].

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122, refd to. [para. 37].

R. v. Amato, [1982] 2 S.C.R. 418; 42 N.R. 487, refd to. [para. 37].

R. v. Mack, [1988] 2 S.C.R. 903; 90 N.R. 173, refd to. [para. 37].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 37].

R. v. Potvin (R.), [1993] 2 S.C.R. 880; 155 N.R. 241; 66 O.A.C. 81, refd to. [para. 37].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 37].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 37].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 37].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 37].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, refd to. [para. 38].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 38].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 39].

Hurley v. United States of Mexico et al. (1997), 101 O.A.C. 121; 116 C.C.C.(3d) 414 (C.A.), refd to. [para. 46].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 11].

Extradition Act, R.S.C. 1985, c. E-23, sect. 9(3) [para. 11].

Counsel:

Paul D. Stern, for the appellant, Cobb;

Brian H. Greenspan, for the appellant, Grossman;

David Littlefield and Kevin Wilson, for the respondent.

Solicitors of Record:

Stern & Landesman, Toronto, Ontario, for the appellant, Cobb;

Greenspan, Humphrey, Lavine, Toronto, Ontario, for the appellant, Grossman;

Department of Justice, Toronto, Ontario, for the respondent.

This appeal was heard on March 24, 2000, by McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour, JJ., of the Supreme Court of Canada. On April 5, 2001, Arbour, J., delivered the following decision for the Court in both official languages.