United States of America v. Commisso et al., (2000) 129 O.A.C. 166 (CA)

• Judge: Labrosse, Laskin and O'Connor, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 13, 1999
• Jurisdiction: Ontario
• Citations: (2000), 129 O.A.C. 166 (CA)

USA v. Commisso (2000), 129 O.A.C. 166 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. FE.077

The United States of America (appellant/requesting state) v. Vincenzo Commisso, Rocco Commisso, Cosimo D'Agostino and Matthew Szabo (respondents/fugitives)

(C28101)

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

Ontario Court of Appeal

Labrosse, Laskin and O'Connor, JJ.A.

February 22, 2000.

Summary:

The respondents were charged in the United States with two counts of conspiracy. The first count alleged that they conspired to distribute, and possess with intent to dis­tribute, a quantity of heroin. The second count alleged that they conspired to import heroin into the United States. The United States sought to extradite the respondents from Canada to stand trial on the charges. After conducting a hearing under the Extra­dition Act, the extradition judge ordered that the respondents be discharged. The United States appealed from that order, arguing that the extradition judge misinterpreted the test for committal under s. 18(1)(b) of the Act. In addition to opposing the appeal on the merits, the respondents applied for an order either dismissing the appeal or staying the extradition proceedings on the basis that the delay of 25 months from the time of filing of the notice of appeal until the argument of the appeal violated their rights under s. 7 of the Charter.

The Ontario Court of Appeal allowed the appeal, set aside the order discharging the respondents and issued a warrant of commit­tal for each of the respondents. The court held that the extradition judge erred in inter­preting and applying the test under s. 18(1)(b) of the Act. The court dismissed the respondents' Charter application where they had not shown that the delay would affect the fairness of the proceedings against them.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceed­ings - [See Civil Rights - Topic 3130 ].

Civil Rights - Topic 3130

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Delay - The respon­dents were charged in the United States with two counts of conspiracy - The United States sought to extradite the re­spondents - After a hearing under the Extradition Act, the extradition judge ordered that the respondents be discharged - The United States appealed - The respon­dents applied for an order either dismissing the appeal or staying the extradition pro­ceedings on the basis that the delay of 25 months from the time of filing of the notice of appeal until the argument of the appeal violated their rights under s. 7 of the Charter - The Ontario Court of Appeal dismissed the respondents' application where they had not shown that the delay would affect the fairness of the proceed­ings against them - The court also noted that the respondents took no steps under the Criminal Appeal Rules to advance or expedite the hearing of the appeal - See paragraphs 77 to 86.

Extradition - Topic 19

Bars to extradition - Delay - [See Civil Rights - Topic 3130 ].

Extradition - Topic 23

Bars to extradition - Charter breaches - [See Civil Rights - Topic 3130 ].

Extradition - Topic 2706

Evidence and procedure before examining judge - Procedure - Test for extradition - Section 18(1)(b) of the Extradition Act provided the test to be applied in cases involving fugitives who were subject to outstanding charges in the requesting juris­diction - The Ontario Court of Appeal set out a number of principles that governed the way a court should apply s. 18(1)(b) - The court stated "[i]n summary, drawing together these principles, the test under s. 18(1)(b) may be paraphrased as follows: The extradition judge shall commit a fugi­tive for surrender if satisfied that the con­duct that underlies the foreign charge, wherever it took place, would if it oc­curred in Canada constitute a prima facie case of any of the offences listed in the Extradition Act or described in the relevant extradition treaty" - See paragraphs 31 to 45.

Extradition - Topic 2706

Evidence and procedure before examining judge - Procedure - Test for extradition - The respondents were charged in the United States with two counts of con­spiracy - The United States sought to extradite the respondents - After a hearing under the Extradition Act, the extradition judge ordered that the respondents be discharged - The United States appealed - The Ontario Court of Appeal allowed the appeal - The extradition judge erred in applying the test in s. 18(1)(b) of the Act where: (1) he made the assessment under s. 18(1)(b) on the assumption that what occurred in the United States occurred in Canada and vice versa, rather than as­suming that all of the impugned conduct occurred in Canada; (2) he narrowed his assessment under Canadian law to only the "approximate equivalent Canadian of­fences" to those charged in the United States rather than considering any Cana­dian extradition offence; and (3) he based his assessment on the failure of the United States to establish the American offences rather than determining if the conduct established a prima facie case of any Cana­dian extradition offence - See paragraphs 4 to 5 and 64 to 76.

Extradition - Topic 3902

Practice - Appeals - Grounds - [See second Extradition - Topic 2706 ].

Cases Noticed:

United States of America v. Lepine (1994), 163 N.R. 1; 69 O.A.C. 241; 87 C.C.C.(3d) 385 (S.C.C.), refd to. [para. 27].

United States of America v. McVey (1992), 144 N.R. 81; 16 B.C.A.C. 241; 28 W.A.C. 241; 77 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 30].

United States of America v. Manno (1996), 112 C.C.C.(3d) 544 (Que. C.A.), refd to. [para. 33].

United States of America v. Tavormina (1996), 112 C.C.C.(3d) 563 (Que. C.A.), dist. [para. 33].

United States of America et al. v. Dynar (1997), 213 N.R. 321; 101 O.A.C. 321; 115 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 38].

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161; 58 C.R.(3d) 1; 28 C.R.R. 280; 39 D.L.R.(4th) 18; 33 C.C.C.(3d) 193, refd to. [para. 39].

United States of America v. Smith (1984), 14 C.C.C.(3d) 16 (Ont. Co. Ct.), refd to. [para. 44].

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.), refd to. [para. 44].

United States of America v. Shulman, [1998] O.A.C. Uned. 350; 128 C.C.C.(3d) 475 (C.A.), leave to appeal granted [1998] S.C.C.A. No. 513; 236 N.R. 199 (S.C.C.), dist. [para. 72].

R. v. Potvin (R.), [1993] 2 S.C.R. 880; 155 N.R. 241; 66 O.A.C. 81; 105 D.L.R.(4th) 214; 83 C.C.C.(3d) 97; 23 C.R.(4th) 10; 16 C.R.R.(2d) 260, refd to. [para. 82].

Statutes Noticed:

Extradition Act, R.S.C. 1985, c. E-23, sect. 18(1)(b) [para. 29].

Authors and Works Noticed:

Stuart, Canadian Criminal Law (3rd Ed. 1995), pp. 630-631 [para. 73].

Counsel:

Thomas Beveridge, for the appellant;

Brian H. Greenspan and Peter Copeland, for the respondent, V. Commisso;

Leo A. Kinahan, for the respondent, R. Commisso;

J. Randall Barrs, for the respondent, C. D'Agostino;

John Morris, for the respondent, M. Szabo.

This appeal was heard on October 13, 1999, before Labrosse, Laskin and O'Con­nor, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by O'Connor, J.A., on February 22, 2000.