United States of America v. Gunn

• Jurisdiction: Manitoba
• Court: Court of Appeal (Manitoba)
• Judge: Scott, C.J.M., Huband and Hamilton, JJ.A.
• Neutral Citation: 2007 MBCA 21
• Citation: 2007 MBCA 21,(2007), 212 Man.R.(2d) 241 (CA),[2007] 4 WWR 707,[2007] MJ No 131 (QL),154 CRR (2d) 258,212 Man R (2d) 241,[2007] M.J. No 131 (QL),(2007), 212 ManR(2d) 241 (CA),212 ManR(2d) 241,212 Man.R.(2d) 241
• Date: 23 October 2006

USA v. Gunn (2007), 212 Man.R.(2d) 241 (CA);

      389 W.A.C. 241

MLB headnote and full text

Temp. Cite: [2007] Man.R.(2d) TBEd. FE.051

United States of America (extradition partner/respondent) v. Jerrold L. Gunn (person sought/appellant)

(AR 05-30-06090; 2007 MBCA 21)

Indexed As: United States of America v. Gunn

Manitoba Court of Appeal

Scott, C.J.M., Huband and Hamilton, JJ.A.

February 22, 2007.

Summary:

The United States requested the extradition of Gunn for prosecution of criminal offences. The Minister of Justice issued an authority to proceed under s. 15 of the Extradition Act, certifying that there were offences under the Canadian law that corresponded to Gunn's alleged conduct in the United States. Gunn moved under the Constitutional Questions Act, challenging the constitutionality of ss. 32, 33 and 34 of the Extradition Act.

The Manitoba Court of Queen's Bench, in a decision reported at 181 Man.R.(2d) 136, dismissed the motion. Gunn appealed.

The Manitoba Court of Appeal dismissed the appeal.

Extradition - Topic 2648

Evidence and procedure before examining judge - Evidence - General - Disclosure - The United States requested Gunn's extradition for criminal prosecution - The extradition judge dismissed preliminary motions by Gunn for, inter alia, the production for inspection of the United States investigator's and prosecutor's file and an order compelling their attendance at the extradition hearing - Gunn appealed his subsequent committal, asserting that he had been seeking production for inspection not disclosure - The Manitoba Court of Appeal dismissed the appeal - Gunn's assertion was a distinction without a difference - Gunn was seeking disgorgement of the requesting party's case at the committal stage which, absent the most exceptional circumstances, he was not entitled to - The broad disclosure standards mandated in domestic criminal trials continued to be excluded from extradition proceedings, except on the rare occasion where there was an air of reality to the assertion that the accused's s. 7 right to a fair hearing had been adversely affected or there had been an abuse of process - This was not such an occasion - See paragraphs 33 to 44.

Extradition - Topic 2657

Evidence and procedure before examining judge - Evidence - General - Identification - The United States requested the extradition of the respondent (Jerrold L. Gunn) for criminal prosecution - The record of the case had the respondent's photograph attached as an exhibit and stated that Gilliland had examined the exhibit and identified the person depicted therein as Gunn - Gilliland was an alleged co-conspirator - The record of the case stated that the Gunn being sought was born in Quebec in 1995 - The respondent was born in Winnipeg, Manitoba, in 1938, where he still lived - The respondent did not match the physical description provided in the records of the case - Two supplementary records of the case stated that, inter alia, the "Jerrold L. Gunn" being sought for extradition lived in Winnipeg - The extradition judge held that despite the inconsistencies in the records of the case, he was satisfied that the respondent was the person being sought - The Manitoba Court of Appeal affirmed the decision - Even where the identification evidence provided by the requesting state was contradictory, the extradition judge was entitled to compare the person before the court with the person described and find that the person before the court was the right person - See paragraphs 28 to 32.

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender - Standard of review - The Manitoba Court of Appeal stated that the appropriate standard of review respecting an order of committal for extradition was derived from the wording of s. 53 of the Extradition Act - A "reasonableness/cannot be supported by the evidence" test applied respecting questions of fact - Nonetheless, deference was due to the extradition judge's findings and conclusions - An appellate court was not free to simply substitute its view of the facts for that of the committal judge - Pursuant to s. 53(a)(ii), a correctness standard applied to questions of law - However, pursuant to s. 53(b)(ii), an appeal could be dismissed, even where there was a "wrong decision on a question of law", if "no substantial wrong or miscarriage of justice has occurred" - See paragraph 49.

Cases Noticed:

United States of America et al. v. Ferras, [2006] 2 S.C.R. 77; 351 N.R. 1; 214 O.A.C. 326; 2006 SCC 33, consd. [para. 3].

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. 17].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 21].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 22].

Parisot, Re (1889), 5 T.L.R. 344 (Q.B.), refd to. [para. 24].

United States of America v. Anekwu, [2006] B.C.T.C. Uned. 709; 2006 BCSC 1363, 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. 26].

Philippines (Republic) v. Pacificador (1993), 64 O.A.C. 344; 14 O.R.(3d) 321 (C.A.), refd to. [para. 28].

United States of America v. Wong (No. 2) (1995), 59 B.C.A.C. 39; 98 W.A.C. 39; 98 C.C.C.(3d) 332 (C.A.), refd to. [para. 29].

S.J.T. v. United States of America (2002), 230 Nfld. & P.E.I.R. 152; 682 A.P.R. 152 (N.L.T.D.), refd to. [para. 29].

United States of America v. Asiegbu et al., [2006] B.C.T.C. 1378; 2006 BCSC 1378, refd to. [para. 31].

United States of America v. Drysdale, [2000] O.T.C. 72; 32 C.R.(5th) 163 (Sup. Ct.), affd. (2004), 185 O.A.C. 125; 237 D.L.R.(4th) 660 (C.A.), refd to. [para. 35].

Germany (Federal Republic) et al. v. Schreiber (2006), 207 O.A.C. 306 (C.A.), leave to appeal denied (2007), 364 N.R. 396, refd to. [para. 35].

United States of America v. Akrami et al., [2000] B.C.T.C. 734; 2000 BCSC 1438, refd to. [para. 35].

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. 37].

United States of America v. Shulman, [2001] 1 S.C.R. 616; 268 N.R. 115; 145 O.A.C. 201; 2001 SCC 616, refd to. [para. 37].

R. et al. v. Larosa (N.) (2002), 163 O.A.C. 108; 166 C.C.C.(3d) 449 (C.A.), refd to. [para. 38].

United States of America et al. v. Prudenza et al. (2006), 216 O.A.C. 231 (C.A.), leave to appeal refused (2007), 364 N.R. 395 (S.C.C.), refd to. [para. 40].

United States of America v. Wacjman, [2002] Q.J. No. 5094 (C.A.), refd to. [para. 40].

United States of America v. Daul (2005), 257 Sask.R. 203; 342 W.A.C. 203; 2005 SKCA 34, refd to. [para. 40].

Thailand (Kingdom) v. Saxena (2006), 224 B.C.A.C. 43; 370 W.A.C. 43; 2006 BCCA 98, leave to appeal denied (2006), 362 N.R. 394 (S.C.C.), refd to. [para. 40].

United States of America v. Turenne (2004), 184 Man.R.(2d) 228; 318 W.A.C. 228; 2004 MBCA 79, refd to. [para. 40].

United States of America v. Ritter (2006), 406 A.R. 341; 2006 ABQB 576, refd to. [para. 41].

Canada (Attorney General) v. Mach, [2006] O.T.C. 731 (Sup. Ct.), refd to. [para. 42].

Canada (Attorney General) v. Dhillon, [2006] O.J. No. 4776 (Sup. Ct.), refd to. [para. 42].

United States of America v. St-Gelais (1994), 90 C.C.C.(3d) 83 (Que. C.A.), refd to. [para. 47].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 47].

Ebke v. Germany, [2003] 9 W.W.R. 61; 2003 NWTCA 1, leave to appeal denied [2003] S.C.C.A. No. 178, refd to. [para. 48].

Authors and Works Noticed:

Botting, Gary, Canadian Extradition Law Practice (2005), p. 180 [para. 46].

Counsel:

P.V. Walsh, Q.C., for the appellant;

C.J. Mainella, for the respondent.

This appeal was heard on October 23, 2006, by Scott, C.J.M., Huband and Hamilton, JJ.A., of the Manitoba Court of Appeal. Scott, C.J.M., delivered the following decision for the court on February 22, 2007.