United States of America v. Kwok, (2001) 145 O.A.C. 36 (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. 36 (SCC);2001 SCC 18;49 WCB (2d) 154;JE 2001-782;EYB 2001-23416;145 OAC 36;152 CCC (3d) 225;81 CRR (2d) 189;[2001] 1 SCR 532;267 NR 310;[2001] SCJ No 19 (QL);197 DLR (4th) 1;41 CR (5th) 44;[2001] ACS no 19

USA v. Kwok (2001), 145 O.A.C. 36 (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.002

Paul Yick Wai Kwok (appellant) v. The United States of America (respondent)

Paul Yick Wai Kwok (appellant) v. The Minister of Justice (respondent)

(26919; 2001 SCC 18)

Indexed As: United States of America v. Kwok

Supreme Court of Canada

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

April 5, 2001.

Summary:

Kwok, a Canadian citizen, was indicted in New York for drug conspiracy offences. The United States sought his extradition. Kwok sought disclosure of information on the involvement of Canadian authorities. He claimed that he required the information to determine whether his right to remain in Canada (Charter, s. 6(1)) was violated. The extradition judge refused to order disclosure and committed Kwok for extradition. Kwok renewed his request for disclosure before the Minister of Justice. The Minister refused disclosure and ordered that Kwok be surrendered. Kwok appealed the extradition judge's decision and applied for judicial review of the Minister's decision.

The Ontario Court of Appeal, in a decision reported 112 O.A.C. 312, dismissed the appeal and the application for judicial review. Kwok appealed.

The Supreme Court of Canada dismissed the appeal.

Administrative Law - Topic 7503

Delegated powers - Delegation - What constitutes - The United States sought Kwok's extradition for drug conspiracy offences - The Minister of Justice ordered Kwok's surrender - Kwok argued that the Minister infringed his s. 6 Charter rights by improperly delegating to his subordinates the decision of whether prosecution in Canada would be as effective as an American prosecution - The Supreme Court of Canada rejected the argument, stating that "the Minister can reach a conclusion as to whether or not a fugitive could be effectively prosecuted in Canada by relying on an evaluation presented to him or her by responsible Department officials, after having considered the appropriate principles and Canada's international obligations. Receiving assistance from local prosecutors in determining the feasibility of a Canadian prosecution does not displace the Minister's discretion or his or her ability to render a decision." - See paragraph 89.

Civil Rights - Topic 525

Mobility rights - Right to remain in Canada - Extradition - The United States sought Kwok's extradition for drug conspiracy offences - At the extradition hearing, Kwok alleged violations of his right to remain in Canada (Charter, s. 6(1)) - The Supreme Court of Canada affirmed that Kwok's s. 6 Charter rights were not engaged at the committal stage and the extradition judge had no jurisdiction to grant Charter remedies with respect to alleged violations of s. 6 - Since mobility issues were only engaged at the time of surrender, these issues were properly considered at the ministerial stage of the extradition process - Extradition judges should not pre-empt the executive with respect to those issues which fell under the Minister's responsibility under the Extradition Act - If the Minister's decision violated a fugitive's Charter rights, the provincial Court of Appeal could review the decision and grant a Charter remedy - See paragraphs 6, 60 to 87.

Civil Rights - Topic 525

Mobility rights - Right to remain in Canada - Extradition - The Minister of Justice surrendered Kwok to the United States for drug conspiracy offences - Kwok argued that the surrender violated his right to remain in Canada (Charter, s. 6(1)), because prosecution in Canada was a realistic option or would be equally effective - The Supreme Court of Canada affirmed that the surrender did not violate Kwok's s. 6(1) rights - The absence of positive evidence that the prosecution in Canada was not a realistic option or that it would not be equally effective did not mean that a surrender was unconstitutional - The Minister's decision with respect to the appropriateness of domestic prosecution attracted a high degree of deference - The Minister's reasons demonstrated that he considered Kwok's mobility rights but concluded that prosecution in Canada would not be as effective in view of the fact that the United States had a greater interest in the prosecution since most of the alleged activities were committed there - It was not at all improper, and indeed it was to be expected, that the Minister would not only consider the possibility of prosecution in Canada, but also the interest of the foreign State in prosecuting the fugitive on its own territory - See paragraphs 90 to 96.

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction (incl. court of competent jurisdiction) - Prior to 1992, an extradition judge did not have jurisdiction to grant Charter remedies - A judge sitting in habeas corpus review of the committal decision was the court of competent jurisdiction to hear Charter arguments and grant a remedy under s. 24(1) - Amendments to the Extradition Act in 1992 consolidated the habeas corpus jurisdiction with that of the committal judge (s. 9(3)) - The Supreme Court of Canada stated that the 1992 amendments did not confer unlimited Charter jurisdiction on the extradition judge - Section 9(3) permitted the extradition judge "to exercise the jurisdiction previously reserved for the habeas corpus judge, which includes remedies for the Charter breaches that pertain directly to the circumscribed issues relevant at the committal stage of the extradition process, and otherwise leaves the powers and functions of the committal court substantially unchanged" - See paragraphs 24 to 57.

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - The Supreme Court of Canada held that alleged violations of s. 6 of the Charter were not relevant at the committal stage, but were properly considered at the ministerial stage of the extradition process - However, the court considered the requirement of a proper evidentiary basis and stated that "evidence that relates to matters falling outside the ambit of the extradition judge's jurisdiction, such as ss. 6 or 12 issues, can be presented in one of three ways: (i) the extradition judge has the discretion to hear all or some of the evidence, on grounds of expediency, and thereby put the issues on the record without deciding on the alleged Charter breach; (ii) the Minister can receive affidavit evidence and/or call a discretionary hearing; and (iii) the provincial court of appeal may receive such evidence when it judicially reviews the Minister's decision on surrender." - See paragraph 84.

Civil Rights - Topic 8590

Canadian Charter of Rights and Freedoms - Practice - Evidence - [See Civil Rights - Topic 8586 ].

Crown - Topic 706

Authority of Ministers - Delegation of - What constitutes a delegation - [See Administrative Law - Topic 7503 ].

Extradition - Topic 8

General - Extradition - Application of Charter - [See first Civil Rights - Topic 525 and Civil Rights - Topic 8363 ].

Extradition - Topic 21

General - Bars to extradition - Ability to prosecute in Canada - [See second Civil Rights - Topic 525 ].

Extradition - Topic 23

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

Extradition - Topic 1403

Jurisdiction - Courts - Charter issues - [See first Civil Rights - Topic 525 and Civil Rights - Topic 8363 ].

Extradition - Topic 2641

Evidence and procedure before examining judge - Evidence - General - [See Civil Rights - Topic 8586 ].

Extradition - Topic 2648

Evidence and procedure before examining judge - Evidence - Disclosure - The United States sought Kwok's extradition for drug conspiracy offences - The RCMP had investigated Kwok and forwarded information to the FBI - Kwok claimed that his surrender would violate his s. 6(1) Charter rights - Kwok sought disclosure of the Canadian investigation and discussions between Canadian and American authorities - The United States authorities were not relying on the RCMP information - The Supreme Court of Canada stated that the extradition judge could only order the production of materials relevant to the issues properly raised at the committal stage of the process (subject to the discretion to expand the hearing's scope to establish a factual basis for a subsequent Charter challenge) - Kwok was entitled to know the case against him, including the materials upon which the United States relied upon to establish a prima facie case - Since the United States was not relying upon the materials in the Canadian authorities' possession, and in the absence of any indication of bad faith or improper motives on the part of prosecuting authorities, there was no obligation to provide disclosure of the requested material - See paragraphs 97 to 102.

Extradition - Topic 2648

Evidence and procedure before examining judge - Evidence - Disclosure - The United States sought Kwok's extradition for drug conspiracy offences - The RCMP had investigated Kwok and forwarded information to the FBI - Kwok claimed that his surrender would violate his s. 6(1) Charter rights - Kwok sought disclosure of the Canadian investigation and discussions between Canadian and American authorities - The United States authorities were not relying on the RCMP information - The Supreme Court of Canada stated that "only where a justiciable Charter issue can arise from the potential involvement of the Canadian authorities in the gathering of evidence is it necessary to consider the degree of disclosure that might be required of the Requested State" - See paragraph 106.

Extradition - Topic 3360

Surrender to demanding country - Considerations - General - [See Administrative Law - Topic 7503 and second Civil Rights - Topic 525 ].

Extradition - Topic 3382

Surrender to demanding country - Procedure - Disclosure - The United States sought Kwok's extradition for drug conspiracy offences - The RCMP had investigated Kwok and forwarded information to the FBI - Kwok claimed that his surrender would violate his s. 6(1) Charter rights - Kwok sought disclosure of the Canadian investigation and discussions between Canadian and American authorities, claiming that the disclosure was necessary for his Charter argument - The United States authorities were not relying on the RCMP information - The Minister of Justice refused Kwok's disclosure request - The Supreme Court of Canada held that the Minister had a duty of fairness to ensure that a fugitive has adequate disclosure of the case against him or her and a reasonable opportunity to state his or her own case - The court affirmed that Kwok received adequate disclosure, stating that his disclosure request did not bear on issues sufficiently relevant to the surrender decision or his constitutional rights in that process - See paragraphs 103 to 109.

Extradition - Topic 3382

Surrender to demanding country - Procedure - Disclosure - [See second Extradition - Topic 2648 ].

Extradition - Topic 3943

Practice - Judicial review - Evidence - [See Civil Rights - Topic 8586 ].

Extradition - Topic 3944

Practice - Judicial review - Jurisdiction - [See first Civil Rights - Topic 525 ].

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender - [See second Civil Rights - Topic 525 ].

Cases Noticed:

United States of America v. Cobb et al. (2001), 267 N.R. 203; 145 O.A.C. 3 (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 v. Shulman (2001), 268 N.R. 115; 145 O.A.C. 201 (S.C.C.), refd to. [para. 1].

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

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, refd to. [para. 18].

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, not folld. [para. 20].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 29].

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

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161, refd to. [para. 29].

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. 29].

United States of America v. Lépine, [1994] 1 S.C.R. 286; 163 N.R. 1; 69 O.A.C. 241, refd to. [para. 29].

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].

Philippines (Republic) v. Pacificador (1993), 64 O.A.C. 344; 83 C.C.C.(3d) 210 (C.A.), leave to appeal denied [1994] 1 S.C.R. x; 175 N.R. 160; 72 O.A.C. 159, consd. [para. 33].

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. 34].

United States of America v. Leon (1995), 77 O.A.C. 313; 96 C.C.C.(3d) 568 (C.A.), affd. [1996] 1 S.C.R. 888; 195 N.R. 228; 90 O.A.C. 217, consd. [para. 48].

United States of America v. Swystun (1987), 50 Man.R.(2d) 129; 40 C.C.C.(3d) 222 (Q.B.), refd to. [para. 49].

Etats-Unis d'Amérique v. Tavormina, [1996] R.J.Q. 693 (Sup. Ct.), refd to. [para. 49].

United States of America v. Cheema et al. (1999), 14 B.C.T.C. 217 (S.C.), refd to. [para. 49].

United States of America v. Garcia, [1994] O.J. No. 1027 (Gen. Div.), consd. [para. 50].

United States of America v. Singh, [1994] O.J. No. 3941 (Gen. Div.), refd to. [para. 51].

United States of America v. D'Agostino et al. (1997), 23 O.T.C. 204; 41 C.R.R.(2d) 325 (Gen. Div.), refd to. [para. 51].

United States of America v. Shulman, [1995] O.J. No. 4497 (Gen. Div.), affd. [1998] O.A.C. Uned. 350; 128 C.C.C.(3d) 475 (C.A.), refd to. [para. 51].

United States of America v. Turenne (1998), 133 Man.R.(2d) 131 (Q.B.), refd to. [para. 51].

Thailand (Kingdom) v. Saxena (1999), 11 B.C.T.C. 306 (S.C.), refd to. [para. 51].

Thailand (Kingdom) v. Saxena (1999), 14 B.C.T.C. 344 (S.C.), refd to. [para. 51].

United States of America v. Tilley (1996), 183 A.R. 158 (Q.B.), not folld. [para. 52].

United States of America v. Tilley, [1996] A.J. No. 718 (Q.B.), not folld. [para. 52].

United States of America v. Kerslake (1996), 142 Sask.R. 112 (Q.B.), refd to. [para. 52].

Chan v. Direction de la Maison Tanguay, [1996] R.J.Q. 335 (Sup. Ct.), refd to. [para. 53].

Hong Kong v. Chan Chui-Mei, [1997] Q.J. No. 4066 (Sup. Ct.), refd to. [para. 53].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 57].

Canada v. Iaquinto, [1991] O.J. No. 1263 (C.A.), leave to appeal denied, [1991] 3 S.C.R. viii; 137 N.R. 387; 55 O.A.C. 397, consd. [para. 62].

Whitley v. United States of America, [1996] 1 S.C.R. 467; 197 N.R. 169; 91 O.A.C. 121, affing. (1994), 75 O.A.C. 100; 94 C.C.C.(3d) 99 (C.A.), refd to. [para. 64].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 66].

R. v. Vermette, [1988] 1 S.C.R. 985; 84 N.R. 296; 14 Q.A.C. 161, refd to. [para. 66].

R. v. Pearson (E.), [1992] 3 S.C.R. 665; 144 N.R. 243; 52 Q.A.C. 1, refd to. [para. 71].

R. v. Morales (M.), [1992] 3 S.C.R. 711; 144 N.R. 176; 51 Q.A.C. 161, refd to. [para. 71].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 73].

R. v. Goltz, [1991] 3 S.C.R. 485; 131 N.R. 1; 5 B.C.A.C. 161; 11 W.A.C. 161, refd to. [para. 73].

United States of America v. Houslander (1993), 13 O.R.(3d) 44 (Gen. Div.), refd to. [para. 74].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 79].

United States of America v. Burns and Rafay (1997), 94 B.C.A.C. 59; 152 W.A.C. 59; 116 C.C.C.(3d) 524 (C.A.), refd to. [para. 80].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 82].

Gwynne v. Canada (Minister of Justice) (1998), 103 B.C.A.C. 1; 169 W.A.C. 1 (C.A.), leave to appeal denied [1998] 1 S.C.R. ix; 227 N.R. 298; 120 B.C.A.C. 87; 196 W.A.C. 87, refd to. [para. 93].

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. 93].

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. 94].

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. 97].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 6(1) [para. 13].

Extradition Act, R.S.C. 1985, c. E-23, sect. 9(3) [para. 13].

Extradition Act, S.C. 1999, c. 18, sect. 25 [para. 13].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates (3rd Sess., 34th Parl.) (November 7, 1991), vol. 4, pp. 4777, 4778 [para. 41]; 4779 [para. 40].

La Forest, Anne Warner, Extradition To and From Canada (3rd Ed. 1991), pp. 179 to 220 [para. 37].

Roach, Kent, Constitutional Remedies in Canada (2000 Looseleaf Update - Release 7), p. 5-34.2 [para. 67].

Counsel:

Chris N. Buhr and Shayne G. Kert, for the appellant;

David Littlefield and Kevin Wilson, for the respondents.

Solicitors of Record:

Buhr & Kert, Toronto, Ontario, for the appellant;

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

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.