United States of America et al. v. Ferras, (2006) 214 O.A.C. 326 (SCC)

• Judge: McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 17, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2006), 214 O.A.C. 326 (SCC);2006 SCC 33;351 NR 1;268 DLR (4th) 1;[2006] ACS no 33;143 CRR (2d) 140;39 CR (6th) 207;209 CCC (3d) 353;[2006] SCJ No 33 (QL);[2006] 2 SCR 77;214 OAC 326;JE 2006-1461;EYB 2006-107828;69 WCB (2d) 711

USA v. Ferras (2006), 214 O.A.C. 326 (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: [2006] O.A.C. TBEd. JL.063

Shane Tyrone Ferras (appellant) v. United States of America, Her Majesty the Queen and Irwin Cotler, Minister of Justice (respondents)

(30211)

Leroy Latty and Lynval Wright (appellants) v. United States of America, Minister of Justice and Attorney General of Canada (respondents)

(30295; 2006 SCC 33; 2006 CSC 33)

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

Supreme Court of Canada

McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

July 21, 2006.

Summary:

Ferras, a Canadian citizen, was indicted in the United States for several offences. He was committed for extradition. The Minister of Justice ordered his surrender. Ferras appealed the committal order and applied for judicial review of the surrender order. Ferras argued that ss. 32(1)(a), 32(1)(c) and 33 of the Extradition Act violated s. 7 of the Charter. He also argued that the extradition would violate his s. 6(1) Charter rights.

The Ontario Court of Appeal, in a decision reported at 184 O.A.C. 306, rejected the arguments and dismissed the appeal and the judicial review application. Ferras appealed.

Latty and Wright were charged in the United States with conspiracy to traffic cocaine and conspiracy to possess cocaine for the purpose of trafficking. They were committed for extradition. The Minister of Justice ordered their surrender. Latty and Wright appealed the committal order and applied for judicial review of the surrender order, alleging that ss. 32(1)(a), 32(1)(c) and 33 of the Extradition Act violated their rights under s. 7 of the Charter. They also argued that the surrender should be refused because (1) the charges could be prosecuted in Canada; (2) the possibility that, if convicted, they could face life imprisonment with no possibility of parole, violated their rights under s. 7 of the Charter; and (3) the Minister's decision not to seek the assurance of the American authorities that they receive a two for one credit for time served in pre-trial custody violated their rights under ss. 6, 7 and 12 of the Charter.

The Ontario Court of Appeal, in a decision reported at 185 O.A.C. 1, dismissed the appeal and the judicial review application. Latty and Wright appealed.

The Supreme Court of Canada dismissed the appeals of Ferras, Latty and Wright.

Civil Rights - Topic 525

Mobility rights - Right to remain in Canada - Extradition - Ferras, a Canadian citizen, challenged the constitutionality of ss. 32(1)(a) and 33(3) of the Extradition Act, which permitted extradition to another country by the "record of the case" method - The Supreme Court of Canada stated that "Extradition to another country infringes the right of a Canadian citizen under s. 6(1) of the Charter to remain in Canada. ... However, s. 6 is not engaged at the committal stage of the extradition process, only at the surrender stage ... Once an extradition judge has determined that a prima facie case for extradition exists, the Minister's surrender decision is of a 'political and/or diplomatic nature' ... In exercising ministerial discretion, the Minister has 'an obligation flowing from s. 6(1) to assure [himself] that prosecution in Canada is not a realistic option' ... However, the Minister is not required to base the surrender decision on evidence submitted at the committal hearing. Thus, s. 6(1) of the Charter cannot be infringed by the impugned provisions." - See paragraphs 82 and 83.

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 principles of fundamental justice applicable to an extradition hearing require that the person sought for extradition must receive a meaningful judicial determination of whether the case for extradition prescribed by s. 29(1) of the Extradition Act has been established -- that is, whether there is sufficient evidence to permit a properly instructed jury to convict. This requires an independent judicial phase, an independent and impartial judge and a judicial decision based on an assessment of the evidence and the law." - See paragraph 26.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - Section 29(1) of the Extradition Act provided that a "judge shall order the committal of the person into custody to await surrender if ... there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada" - The Supreme Court of Canada held that s. 29(1), properly construed, granted the extradition judge discretion to refuse to extradite on insufficient evidence such as where the reliability of the evidence certified was successfully impeached or where there was no evidence, by certification or otherwise, that the evidence was available for trial - Therefore, ss. 32(1)(a) and (b) and s. 33 of the Extradition Act, which permitted the extradition judge to act on the record of the case or evidence adduced pursuant to a treaty, did not violate a person's constitutional right to a fair judicial hearing (Charter, s. 7) when considered together with the judge's duty to determine the case for extradition under s. 29(1) - See paragraphs 1 to 50.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - The appellants were charged with trafficking in cocaine - They submitted that their surrender to the United States, where they could receive sentences if convicted of 10 years to life without parole, would "shock the conscience" of Canadians and thus run afoul of fundamental justice - They also submitted that the Minister's refusal to seek assurances for enhanced credit for time served in pre-trial custody would offend fundamental justice - The Supreme Court of Canada rejected the submissions - The court stated, inter alia, that "The only factor in favour of the Minister seeking assurances is that the Minister may be well placed to inform the requesting state about the onerous conditions of pre- surrender custody in Canada. However, these are issues that the appellants can themselves raise at sentencing if they are convicted of a crime in the United States." - See paragraphs 84 to 92.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada held that it was not necessary for a person challenging the actual reliability or availability of evidence adduced at a committal hearing to seek a remedy under s. 24 of the Charter - Section 29(1) of the Extradition Act, properly construed, conformed to both Charter values and the comity, reciprocity and respect for differences underlying extradition - Therefore, no constitutional conflicts arose from the exercise of an extradition judge's discretion to order committal - Simply put, the extradition judge had the discretion to give no weight to unavailable or unreliable evidence when determining whether committal was justified under s. 29(1) - Thus, the person sought did not need to seek a constitutional remedy - Nevertheless, s. 24(2) of the Charter remained an avenue through which evidence could be excluded from consideration at an extradition hearing for reasons of fairness other than availability and reliability concerns - See paragraphs 59 and 60.

Extradition - Topic 23

General - Bars to extradition - Charter breaches - [See Civil Rights - Topic 525 , second and third Civil Rights - Topic 3129 ].

Extradition - Topic 2645

Evidence and procedure before examining judge - Evidence - General - Admissibility (incl. voir dire) - [See Civil Rights - Topic 8368 ].

Extradition - Topic 2658

Evidence and procedure before examining judge - Evidence - General - Evidence required to ground proceedings - [See second Civil Rights - Topic 3129 ].

Extradition - Topic 2658

Evidence and procedure before examining judge - Evidence - General - Evidence required to ground proceedings - The Supreme Court of Canada discussed how and when concerns about reliability or availability of evidence would render evidence insufficient for the purposes of committal -See paragraphs 51 to 80.

Extradition - Topic 2659

Evidence and procedure before examining judge - Evidence - General - Burden of proof - [See second Civil Rights - Topic 3129 ].

Extradition - Topic 3344

Surrender to demanding country - Conditions precedent - Imposition of conditions - [See third Civil Rights - Topic 3129 ].

Extradition - Topic 3362

Surrender to demanding country - Considerations - Proportionality or severity of potential punishment - [See third Civil Rights - Topic 3129 ].

Cases Noticed:

United Mexican States v. Ortega (2006), 351 N.R. 52; 2006 SCC 34, refd to. [para. 1].

United States of America et al. v. Yang (2001), 149 O.A.C. 364; 56 O.R.(3d) 52 (C.A.), refd to. [para. 5].

United Mexican States v. Ortega, [2004] B.C.T.C. 210; 237 D.L.R.(4th) 281; 2004 BCSC 210, revd. (2005), 212 B.C.A.C. 228; 350 W.A.C. 228; 253 D.L.R.(4th) 237; 2005 BCCA 270, refd to. [para. 5].

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; 144 N.R. 327; 59 O.A.C. 241, refd to. [para. 7].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, consd. [para. 9].

R. v. Rodgers - see R. v. Jackpine (R.).

R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200; 2006 SCC 15, refd to. [para. 14].

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161, refd to. [para. 19].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 19].

Glucksman v. Henkel (1911), 221 U.S. 508, refd to. [para. 19].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 248; 322 N.R. 205; 199 B.C.A.C. 45; 326 W.A.C. 45; 2004 SCC 42, refd to. [para. 23].

Dr. Bonham's Case, Re (1610), 8 Co. Rep. 113b; 77 E.R. 646, refd to. [para. 24].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 24].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 24].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 25].

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, refd to. [para. 38].

R. v. Arcuri (G.), [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126; 2001 SCC 54, refd to. [para. 39].

United States of America v. Cobb et al., [2001] 1 S.C.R. 587; 267 N.R. 203; 145 O.A.C. 3; 2001 SCC 19, refd to. [para. 42].

United States of America v. Kwok, [2001] 1 S.C.R. 532; 267 N.R. 310; 145 O.A.C. 36; 152 C.C.C.(3d) 225; 2001 SCC 18, refd to. [para. 42].

United States of America v. Shulman, [2001] 1 S.C.R. 616; 268 N.R. 115; 145 O.A.C. 201; 2001 SCC 21, refd to. [para. 42].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 45].

R. v. D.O.L., [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241, refd to. [para. 47].

United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469; 96 N.R. 321; 23 Q.A.C. 182; 48 C.C.C.(3d) 193, refd to. [para. 82].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [para. 85].

R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 90].

United States of America v. Adam (2003), 170 O.A.C. 222; 174 C.C.C.(3d) 445 (Ont. C.A.), refd to. [para. 90].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 6(1) [para. 82]; sect. 7 [para. 1].

Extradition Act, S.C. 1999, c. 18, sect. 29(1)(a) [para. 35]; sect. 32, sect. 33(1), sect. 33(3)(a) [Appendix A].

Authors and Works Noticed:

Botting, Gary, Extradition Between  Canada and the United States (2005), p. 8 [para. 41].

La Forest, Anne Warner, The Balance Between Liberty and Comity in the Evidentiary Requirements Applicable to Extradition Proceedings (2002), 28 Queen's L.J. 95, p. 172 [para. 41].

Counsel:

Brian H. Greenspan, for the appellant Ferras;

Edward L. Greenspan, Q.C., and Vanessa V. Christie, for the appellants Latty and Wright;

Robert J. Frater and Janet Henchey, for the respondents.

Solicitors of Record:

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

Greenspan White, Toronto, Ontario, for the appellants Latty and Wright;

Attorney General of Canada, Ottawa, Ontario, for the respondents.

This appeal was heard on October 17, 2005, by McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada. McLachlin, C.J.C., delivered the following decision for the court in both official languages on July 21, 2006. Major, J., took no part in the judgment.