United States of America v. Gillingham, (2004) 201 B.C.A.C. 26 (CA)

• Judge: Finch, C.J.B.C., Prowse and Ryan, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 15, 2004
• Jurisdiction: British Columbia
• Citations: (2004), 201 B.C.A.C. 26 (CA);2004 BCCA 226

USA v. Gillingham (2004), 201 B.C.A.C. 26 (CA);

    328 W.A.C. 26

MLB headnote and full text

Temp. Cite: [2004] B.C.A.C. TBEd. MY.004

United States of America (petitioner/respondent) v. Richard Wayne Gillingham (respondent/appellant)

(CA25471)

Richard Wayne Gillingham (applicant) v. Canada (Minister of Justice (respondent)

(CA30718)

(2004 BCCA 226)

Indexed As: United States of America v. Gillingham

British Columbia Court of Appeal

Finch, C.J.B.C., Prowse and Ryan, JJ.A.

April 28, 2004.

Summary:

Gillingham, a Canadian citizen, fled to the United States to escape being tried on charges of sexual assault of two children. While in the State of Montana, he pleaded guilty, as part of a plea bargain, to four counts of sexual assault and one of assault committed there. He was sentenced to 10 years' im­prisonment on each of the five counts, con­secutive, for a total sentence of 50 years. As part of the plea bargain, the sentence was suspended on terms and condi­tions, includ­ing deportation to Canada to face similar charges and never to return to the U.S. again, and he was placed on proba­tion for the 50 year duration of the consecu­tive sentences. Back in Canada, he pleaded guilty to the outstanding charges and was sentenced to two years' imprisonment and three years' probation. After serving his custodial sen­tence, the probation order began to run. While on such probation, Gillingham moved to Ottawa, Ontario without informing his B.C. probation officer. In Ottawa, he was convicted of the offence of personation. U.S. authorities, being informed of these events, petitioned to revoke his U.S. probation. After serving his sentence for the personation conviction, Gillingham returned to British Columbia. Subsequently, he was charged with breaches of probation. The U.S. filed a supplemental petition to revoke Gillingham's probation and to impose the suspended sentence. Gillingham pleaded guilty to the breaches of probation and was sentenced. The United States formally requested Gil­lingham's extradition.

The British Columbia Supreme Court, in a decision reported at [1998] B.C.T.C. Uned. J46, committed Gillingham for extradition. The Minister of Justice ordered him to be surrendered to Montana. Gillingham ap­pealed the decision of the extradition judge and sought judicial review of the Minister's decision. The appeal and the application were heard together.

The British Columbia Court of Appeal, in a decision reported in 144 B.C.A.C. 165; 236 W.A.C. 165, dismissed Gillingham's appeal from the committal order. The court allowed Gillingham's application for judicial review in part, holding that Gillingham, who asserted that his surrender was tainted by improper motives by Canadian authorities, raised issues worthy of consideration which were not raised before the Minister with sufficient clarity. The court, acting under s. 25.2(6) of the Extradition Act, referred the matter back to the Minister for further in­vestigations and consideration.

Gillingham appealed the dismissal of his appeal from the committal order to the Supreme Court of Canada.

The Supreme Court of Canada remanded Gillingham's case back to the Court of Appeal for deci­sion in light of its judgments in three recent, relevant cases. Subsequently, the Minister refused to change its earlier decision to surrender Gillingham to the U.S.

The British Columbia Court of Appeal, in the following decision, treated the hearing on remand as a fresh appeal from the committal order. The court again dismissed the appeal. The court also addressed the application for judicial review of the surrender order, and dismissed that application, affirming that Gillingham be surrendered to the United States.

Editor's Note: see also a related case at [2003] B.C.T.C. 470.

Civil Rights - Topic 3129

Trials - Due process, fundamental rights and fair hearings - Criminal and quasi-criminal proceedings - Extradition pro­ceedings - [See both Extradition - Topic 19 ].

Extradition - Topic 8

General - Extradition - Application of Charter - The British Columbia Court of Appeal discussed the jurisdiction of the extradition or committal judge (and the Court of Appeal on appeal from a com­mittal order), to deal with Charter issues and remedies - See paragraphs 36 to 43, 172.

Extradition - Topic 19

General - Bars to extradition - Delay - Gillingham was convicted in Montana on April 7/93 - On August 6/93 he received a suspended sentence and probation - He was deported to Canada on August 26/93 - From November 1993 to November 1995 he was in custody in Canada for convic­tions there - After November 1995 he was on probation, which he breached - In February 1996 Montana was notified of the breaches - In July 1996 Montana filed its first petition to revoke the suspended sen­tence - In July 1998 Montana sought Gil­lingham's extradition - The British Colum­bia Court of Appeal held that Mon­tana's delay in enforcing the U.S. probation order and in seeking extradition did not compro­mise the fairness of the extradition, preju­dice Gillingham, violate the Charter, s. 7, or justify a stay - See paragraphs 96 to 109, 172.

Extradition - Topic 19

General - Bars to extradition - Delay - Gillingham was committed for extradition to the U.S. to face completion of a Mon­tana sentence - Gillingham unsuccessfully appealed the committal order - The Supreme Court of Canada remanded the case back to the Court of Appeal - An approximately 27 month delay occurred between the Court of Appeal's original decision and the Minister of Justice's re­consideration decision to surrender Gil­lingham - The British Columbia Court of Appeal held that the 27 month delay (at least one year of which was attributable to the Canadian government's failure to ensure that Gillingham had timely disclo­sure of the case against him), did not vio­late the Charter, s. 7, or the principles of natural justice or constitute an abuse of process - See paragraphs 143 to 161, 175.

Extradition - Topic 22

General - Bars to extradition - Abuse of process - Gillingham, a Canadian citizen, was convicted in Montana - He received a suspended sentence, probation and was deported to Canada, where he committed other offences and breached his probation - U.S. authorities sought extradition to have Gillingham complete his sentence - Gil­lingham alleged that his Canadian proba­tion officer improperly contacted U.S. authorities and persuaded them to seek his extradition - The British Colum­bia Court of Appeal found no abuse of process, the conduct not being improper, in bad faith or malicious - The U.S. did not seek extradi­tion until two years after the communica­tions - The probation officer did not prompt or influence the extradition request - There was no personal animosity or malice, nor were the communications based on fabricated evidence - See para­graphs 44 to 46, 66 to 78, 172.

Extradition - Topic 22

General - Bars to extradition - Abuse of process - Gillingham, a Canadian citizen, was convicted in Montana - He received a suspended sentence, probation and was deported to Canada, where he committed other offences and breached his probation -U.S. authorities sought extradition to have Gillingham complete his sentence - Gil­lingham alleged that a Canadian proba­tion officer acted improperly, in bad faith and maliciously in attempting to have him sign a waiver of extradition - The British Columbia­ Court of Appeal found no abuse of process warranting a stay - There was no attempt to intimidate, threaten or induce Gillingham - Moreover, U.S. auth­orities did not proceed to extradition on this basis - Seeking a waiver of extradition was not abusive or a Charter violation, absent evidence of intimidation or coercion - See paragraphs 44 to 46, 79 to 86, 172.

Extradition - Topic 22

General - Bars to extradition - Abuse of process - [See second Extradition - Topic 19 ].

Extradition - Topic 23

General - Bars to extradition - Charter breaches - [See second Extradition - Topic 19 and second Extradition - Topic 22 ].

Extradition - Topic 1023

Who may be extradited - Particular per­sons - Persons facing outstanding sen­tences - Gillingham, a Canadian citizen, was con­victed in Montana, received a suspended sentence and probation and was deported to Canada, where he breached his proba­tion - U.S. authorities sought extra­dition to have Gillingham complete his sentence - The British Columbia Court of Appeal held that Montana had the pre­scriptive jurisdiction to make a probation order controlling Gillingham's conduct outside the U.S. - The U.S. had a legit­imate inter­est in seeking extradition (en­forcing its courts' orders and ensuring offenders were brought to justice), which provided a real and substantial link between Gillingham's conduct and the extradition request - Nei­ther Gillingham's deportation nor Mon­tana's failure to rely on the Prisoner Trans­fer Treaty disentitled the U.S. from re­questing extradition - See paragraphs 129 to 142, 171, 174.

Extradition - Topic 1403

Jurisdiction - Courts - Charter issues - [See Extradition - Topic 8 ].

Extradition - Topic 2703

Evidence and procedure before examining judge - Procedure - Powers of examining judge - [See Extradition - Topic 8 ].

Extradition - Topic 2703

Evidence and procedure before examining judge - Procedure - Powers of examining judge - Gillingham fled to the United States to avoid Canadian charges - While in Montana, he pleaded guilty to several offences committed there - His 50 year sentence was suspended and he was placed on probation and deported back to Canada - Because of subsequent conduct while in Canada, U.S. authorities sought his extra­dition under the Extradition Act, s. 18(1)(a), to have him complete his U.S. sentence - The British Columbia Court of Appeal held that the extradition judge had no jurisdiction to question the jurisdiction of the requesting state to request extradi­tion - The jurisdictional question was properly the subject of judicial review of the order of the Minister of Justice to surrender Gillingham to the U.S. - See paragraphs 44 to 46, 51 to 61, 173.

Extradition - Topic 2703

Evidence and procedure before examining judge - Procedure - Powers of examining judge - Gillingham, a Canadian citizen, was convicted in Montana of several of­fences - He received a suspended sen­tence, probation and was deported to Canada - Subsequently, U.S. authorities sought his extradition to face revocation of his U.S. probation order and execution of the cus­todial sentence, for breaches of the proba­tion order committed in Canada - Gil­lingham alleged misconduct by Cana­dian officials - The British Columbia Court of Appeal held that the extradition judge could consider whether Canadian officials acted improperly, in bad faith or with malicious intent, which could, where such conduct affected the fairness of the extradi­tion proceedings, form the basis for finding an abuse of process or a breach of the Charter, s. 7 - See paragraphs 44 to 46, 62 to 65, 172.

Extradition - Topic 2703

Evidence and procedure before examining judge - Procedure - Powers of examining judge - The British Columbia Court of Appeal held that an extradition judge, at the committal stage (and an appellate court on appeal from the committal order) had jurisdiction to consider whether delay caused by the requesting state constituted a violation of s. 7 of the Charter or an abuse of process - The fugitive must show that the delay caused prejudice which compromised the fairness of the extradition proceedings - See paragraphs 87 to 95, 172.

Extradition - Topic 3383

Surrender to demanding country - Pro­cedure - Reasons for decision - The British Columbia Court of Appeal referred to the duty of the Minister of Justice, in extradi­tion proceed­ings, to provide written rea­sons for reject­ing a submission that a fugitive's surrender would be unjust or oppressive because of humanitarian con­siderations - See para­graph 162.

Extradition - Topic 3383

Surrender to demanding country - Pro­cedure - Reasons for decision - Gillingham was a Cana­dian citizen who was convicted in Mon­tana, given a suspended sentence and probation and deported to Canada - Gill­ingham sought judicial review of the deci­sion of the Minister of Justice to sur­render him to the U.S. to face revocation of the proba­tion and execution of the suspended cus­todial sentence - The British Columbia Court of Appeal rejected Gil­lingham's argument that the Minister in­adequately explained his reasons for affirm­ing the order for surrender - The Minis­ter's rea­sons for concluding that the U.S. had a legitimate interest in Gilling­ham's extradi­tion, and for declining to refuse his sur­render on humanitarian grounds were adequate - See paragraphs 162 to 167, 176.

Extradition - Topic 3905

Practice - Appeals - Jurisdiction - [See Extradition - Topic 8 and fourth Extra­dition - Topic 2703 ].

Extradition - Topic 3906

Practice - Appeals - Evidence (incl. fresh evidence) - The British Columbia Court of Appeal held that appellate courts had a broad discretion to admit fresh evidence to generate a proper evidentiary basis for adjudication of Charter issues in extradi­tion proceedings where they sit as the court with original jurisdiction to grant Charter remedies - In such situations, appellate courts were not constrained by the usual criteria governing the admissibil­ity of fresh evidence as set out in R. v. Palmer (S.C.C.) - See paragraph 48.

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender - The British Columbia Court of Appeal discussed the standard of review of the Minister of Justice's decision to sur­render a fugitive for extradition - See paragraphs 119 to 128.

Cases Noticed:

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, appld. [para. 3].

United States of America v. Cobb et al., [2001] 1 S.C.R. 587; 267 N.R. 203; 145 O.A.C. 3; 152 C.C.C.(3d) 270; 2001 SCC 19, dist. [para. 3].

United States of America v. Shulman, [2001] 1 S.C.R. 616; 268 N.R. 115; 145 O.A.C. 201; 152 C.C.C.(3d) 294; 2001 SCC 21, appld. [para. 3].

Metzner v. Metzner (2000), 141 B.C.A.C. 84; 231 W.A.C. 84; 190 D.L.R.(4th) 366; 80 B.C.L.R.(3d) 133; 2000 BCCA 474, refd to. [para. 9].

Canada (Minister of Justice) v. Pacificador (2002), 162 O.A.C. 299; 60 O.R.(3d) 685; 216 D.L.R.(4th) 47; 166 C.C.C.(3d) 321 (C.A.), leave to appeal refused (2003), 312 N.R. 195; 180 O.A.C. 399 (S.C.C.), refd to. [para. 10].

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; 97 D.L.R.(4th) 193; 77 C.C.C.(3d) 1, refd to. [para. 34].

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161; 39 D.L.R.(4th) 18; 33 C.C.C.(3d) 193, refd to. [para. 35].

Argentina (Republic) v. Mellino, [1987] 1 S.C.R. 536; 76 N.R. 51; 80 A.R. 1; 33 C.C.C.(3d) 334; 40 D.L.R.(4th) 74, refd to. [para. 36].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 48].

United States of America v. Allison (1918), 42 D.L.R. 595 (N.S. Co. Ct.), refd to. [para. 54].

Lazerman v. Canada (Minister of Justice), [1998] Q.J. No. 40 (C.A.), refd to. [para. 54].

Burke, Re, [2000] 3 All E.R. 481; [2001] 1 A.C. 422; 261 N.R. 1 (H.L.), refd to. [para. 54].

United States of America v. Lépine, [1994] 1 S.C.R. 286; 163 N.R. 1; 69 O.A.C. 241; 111 D.L.R.(4th) 31; 87 C.C.C.(3d) 385, folld. [para. 56].

United States of America v. Commisso et al. (2000), 129 O.A.C. 166; 47 O.R.(3d) 257; 143 C.C.C.(3d) 158 (C.A.), leave to appeal refused (2000), 261 N.R. 197; 141 O.A.C. 197 (S.C.C.), refd to. [para. 58].

Wacjman v. Canada (Minister of Justice) et al. (2002), 171 C.C.C.(3d) 134 (Que. C.A.), leave to appeal refused (2003), 319 N.R. 197 (S.C.C.), refd to. [para. 58].

United States of America v. Kavaratzis (2004), 181 O.A.C. 230 (C.A.), refd to. [para. 58].

R. et al. v. Larosa (N.) (2002), 163 O.A.C. 108; 166 C.C.C.(3d) 449 (C.A.), refd to. [para. 62].

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. 64].

Whitley v. United States of America (1994), 75 O.A.C. 100; 94 C.C.C.(3d) 99; 119 D.L.R.(4th) 693 (C.A.), affd. [1996] 1 S.C.R. 467; 197 N.R. 169; 91 O.A.C. 121; 132 D.L.R.(4th) 575, refd to. [para. 65].

United States of America v. Leon, [1996] 1 S.C.R. 888; 195 N.R. 228; 90 O.A.C. 217; 105 C.C.C.(3d) 385; 134 D.L.R.(4th) 17, consd. [para. 83].

United States of America v. Allard and Charette, [1987] 1 S.C.R. 564; 75 N.R. 260; 8 Q.A.C. 178; 40 D.L.R.(4th) 102, refd to. [para. 88].

United States of America v. Reumayr (2003), 184 B.C.A.C. 251; 302 W.A.C. 251; 176 C.C.C.(3d) 377; 2003 BCCA 375, consd. [para. 90].

United States of America v. Bobiak, 2002 BCSC 1872, refd to. [para. 90].

United States of America v. Danielson, [2002] B.C.T.C. 1854; 2002 BCSC 1854, refd to. [para. 90].

United States of America v. Reid, [2002] O.J. No. 2377 (S.C.J.), refd to. [para. 90].

Shull et al. v. United States of America (Attorney General) et al., [2003] B.C.T.C. 444; 2003 BCSC 444, refd to. [para. 90].

Unites States of America v. Canada (Min­ister of Justice) - see Shull et al. v. United States of America (Attorney General) et al.

United States of America v. Rizk, [2002] O.T.C. Uned. 171 (S.C.), refd to. [para. 90].

R. v. Castro (J.F.) et al. (2001), 157 B.C.A.C. 97; 256 W.A.C. 97; 157 C.C.C.(3d) 255; 2001 BCCA 507, refd to. [para. 91].

R. v. Dhillon (G.S.) (2001), 157 B.C.A.C. 124; 256 W.A.C. 124; 2001 BCCA 555, refd to. [para. 91].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 92].

United States of America v. Chao (2003), 190 B.C.A.C. 161; 311 W.A.C. 161; 2003 BCCA 458, leave to appeal refused [2003] S.C.C.A. No. 407, refd to. [para. 94].

Bonamie, Re (2001), 293 A.R. 201; 257 W.A.C. 201; 2001 ABCA 267, refd to. [para. 94].

Gwynne v. Minister of Justice (Canada) (1998), 103 B.C.A.C. 1; 169 W.A.C. 1; 50 C.R.R.(2d) 250, leave to appeal ref­used (1998), 227 N.R. 298; 120 B.C.A.C. 87; 196 W.A.C. 87 (S.C.C.), refd to. [para. 121].

Cook v. Canada (Minister of Justice) (2002), 174 B.C.A.C. 222; 286 W.A.C. 222; 168 C.C.C.(3d) 184; 2002 BCCA 535, refd to. [para. 121].

United States of America v. Taylor (2003), 182 B.C.A.C. 83; 300 W.A.C. 83; 175 C.C.C.(3d) 185; 2003 BCCA 250, refd to. [para. 121].

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. 122].

United States of America v. Earles (2003), 176 B.C.A.C. 231; 290 W.A.C. 231; 2003 BCCA 20, refd to. [para. 125].

R. v. Greco (R.) (2001), 155 O.A.C. 316; 159 C.C.C.(3d) 146 (C.A.), leave to appeal refused (2001), 300 N.R. 194; 169 O.A.C. 195 (S.C.C.), appld. [para. 132].

R. v. Cook (D.R.), [1998] 2 S.C.R. 597; 230 N.R. 83; 112 B.C.A.C. 1; 182 W.A.C. 1; 164 D.L.R.(4th) 1, refd to. [para. 133].

R. v. Libman, [1985] 2 S.C.R. 178; 62 N.R. 161; 12 O.A.C. 33; 21 C.C.C.(3d) 206; 21 D.L.R.(4th) 174, refd to. [para. 134].

Ecrémont v. Seguin (1921), 39 C.C.C. 113 (Que. K.B.), refd to. [para. 139].

Blencoe v. Human Rights Commission (B.C.), [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 190 D.L.R.(4th) 513; 2000 SCC 44, refd to. [para. 144].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 162].

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; 151 C.C.C.(3d) 97; 195 D.L.R.(4th) 1; 2001 SCC 7, refd to. [para. 177].

Authors and Works Noticed:

Krivel, E.F., Q.C., Beveridge, T., and Hayward, J.W., A Practical Guide to Canadian Extradition (2002), pp. 424 [para. 146]; 431 to 436 [para. 86].

LaForest, A.W., LaForest's Extradition To and From Canada (3rd Ed. 1991), pp. 28 to 31 [para. 36]; 45 to 46 [para. 86].

Counsel:

R.W. Gillingham appeared on his own behalf;

K.J. Yule, Q.C., for the respondents, United States of America and Canada (Minister of Justice).

This appeal and application were heard in Vancouver, British Columbia, on January 15, 2004, before Finch, C.J.B.C., Prowse and Ryan, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on April 28, 2004, when the fol­lowing opinions were filed:

Finch, C.J.B.C. (Prowse, J.A., concur­ring) - see paragraphs 1 to 179;

Ryan, J.A. - see paragraphs 180 to 186.