United States of America v. Maydak, (2004) 203 B.C.A.C. 60 (CA)

• Judge: Prowse, Oppal and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 22, 2004
• Jurisdiction: British Columbia
• Citations: (2004), 203 B.C.A.C. 60 (CA);2004 BCCA 478

USA v. Maydak (2004), 203 B.C.A.C. 60 (CA);

    332 W.A.C. 60

MLB headnote and full text

Temp. Cite: [2004] B.C.A.C. TBEd. SE.051

Keith Edward Maydak (appellant) v. The Attorney General of Canada, on behalf of the United States of America (respondent)

(CA030864)

Keith Edward Maydak (applicant/appellant) v. Canada (Minister of Justice) and Canada (Minister of Citizenship and Immigration) (respondents/respondents)

(CA031455; 2004 BCCA 478)

Indexed As: United States of America v. Maydak

British Columbia Court of Appeal

Prowse, Oppal and Lowry, JJ.A.

September 22, 2004.

Summary:

On April 20, 2003, Garson, J., committed Maydak for surrender to the United States of America so that he could serve the re­mainder of a sentence imposed on him in Pennsylvania. See [2003] B.C.T.C. 702. On November 18, 2003, the Minister of Justice ordered the surrender of Maydak to the United States. Maydak sought the following relief in the British Columbia Court of Appeal: (1) a stay of proceedings of the extradition order; (2) an order allowing his appeal from Garson, J.'s, committal order; (3) judicial review in the form of an order setting aside the surrender order of the Minister; and (4) judicial interim release.

The British Columbia Court of Appeal de­nied the relief sought.

Editor's Note: For a related decision in­volving the same parties, see 196 B.C.A.C. 9; 322 W.A.C. 9.

Extradition - Topic 606

Extraditable offences - General - Extra­ditable sentence - Section 3(3) of the Ex­tradition Act provided that, subject to a relevant extradition agreement, the extra­dition of a person sentenced to imprison­ment or "another deprivation of liberty" could only be granted if at least six months remained in the sentence or a more severe punishment remained to be carried out - The United States sought Maydak's extra­dition so he could serve the rest of his sentence, now consisting of the remainder of a three-year term of supervised release that followed a 96-month period of incar­ceration - The Minister of Justice ordered Maydak surrendered - Maydak applied for judicial review, arguing that the Minister erred in his assessment of s. 3(3) of the Extradition Act in that supervised release was not a custodial sentence - The British Columbia Court of Appeal dismissed the application - An extraditable sentence in­cluded a non-custodial form of sentence such as supervised release - "Supervised" meant a freedom and liberty subject to state supervision - It was, as the Minister stated, a "form of detention" - The court added that the six months requirement in s. 3(3) applied absent an express provision to the contrary in the Canada-U.S. Extradition Treaty - See paragraphs 63 to 65.

Extradition - Topic 2915

Provisional arrest and detention - Warrant of committal - General - Issue of - Con­ditions precedent - Maydak was found guilty in the United States of wire fraud, mail fraud, money laundering and access device fraud - Maydak was sentenced to 96 months in jail followed by a three-year term of supervised release - Maydak ap­parently served the entire custodial term, with the supervised release term beginning on February 15, 2001 - Maydak was ar­rested in Canada on an unconnected matter before his supervised release term expired - The United States sought Maydak's ex­tradition so he could serve the rest of his sentence - An extradition judge ordered him committed, ruling that the conduct described in the record corresponded to the offences of fraud (Criminal Code, s. 380), mail fraud (s. 381) and laundering of pro­ceeds of crime (s. 462.31), which were stated in the Authority to Proceed - The British Columbia Court of Appeal upheld the decision - See paragraphs 29 to 44.

Extradition - Topic 3365

Surrender to demanding country - Con­siderations - Pending refugee claim - [See second Extradition - Topic 3947 ].

Extradition - Topic 3809

Practice - General - Stay of proceedings - The British Columbia Court of Appeal held that an extradition judge had the au­thority to grant a stay of proceedings where it was alleged that there had been an abuse of process - In the present case, the court declined to grant a stay where there was no evidence that the requesting state "committed any acts that would compro­mise the fairness of the extradition in this jurisdiction" - See paragraphs 23 to 28.

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender - Standard of review - The Unit­ed States sought Maydak's extradition so he could serve the rest of his sentence, which was by then the remainder of a three-year term of supervised release that followed a 96-month period of incar­ceration - An extradition judge ordered Maydak committed - The Minister of Justice ordered his surrender - Maydak sought judicial review - The British Columbia Court of Appeal dismissed the application - The court ruled that the standard of correctness was applicable because the Minister was required to con­sider an applicant's constitutional rights and ruled also that high deference was owed to the ministerial decision to sur­render - See paragraphs 52 to 58.

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender - The United States sought Maydak's extradition so he could serve the rest of his sentence, now consisting of the remainder of a three-year term of super­vised release that followed a 96-month period of incarceration - The Minister of Justice ordered Maydak surrendered - Maydak sought judicial review - The British Columbia Court of Appeal dis­missed the application where: (1) the Minister did not err in refusing to review the evidence that formed the basis of May­dak's convictions and the subsequent ex­culpatory evidence submitted to the Minis­ter; (2) an argument that the Minister erred in surrendering Maydak to complete a sentence for offences outside the scope of the committal order was invalid; (3) more than six months remained in Maydak's sentence; (4) an argument that the Minister erred by surrendering Maydak to face a hearing alleging a breach of supervised release was invalid; (5) an argument that the Minister erred by surrendering Maydak to face an excessive sentence in the United States was invalid; (6) an argument that the Minister failed to observe the prin­ciples of natural justice, procedural fairness and made erroneous findings of fact in a perverse and capricious manner was in­valid; and (7) it could not be said that (a) the Extradition Act violated Maydak's rights under the Charter, Bill of Rights or the Refugee Convention, and (b) the Minister erred in making an order for surrender after having considered May­dak's rejection for refugee status under s. 105(3) of the Immigration and Refugee Protection Act - See paragraphs 59 to 84.

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender - [See Extradition - Topic 606 ].

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender - Section 105(3) of the Immi­grant and Refugee Protection Act, provided that, in certain circumstances, an order of surrender under the Extradition Act was deemed to be a rejection of a claim for refugee protection - The British Columbia Court of Appeal held that its review of a surrender order was, in essence, also a review of the deemed rejection of a refu­gee claim - See paragraph 81.

Cases Noticed:

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, consd. [para. 24].

United States of America v. Gillingham (2004), 201 B.C.A.C. 26; 328 W.A.C. 26; 2004 BCCA 226, consd. [para. 25].

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, consd. [para. 27].

Philippines (Republic) v. Pacificador (1993), 64 O.A.C. 344; 83 C.C.C.(3d) 210 (C.A.), leave to appeal refused [1994] 1 S.C.R. x; 175 N.R. 160; 72 O.A.C. 159, refd to. [para. 43].

United States of America v. Shephard (1976), 9 N.R. 215; 30 C.C.C.(2d) 424 (S.C.C.), refd to. [para. 43].

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; 144 N.R. 327; 59 O.A.C. 241, consd. [para. 53].

Gwynne v. Canada (Minister of Justice) (1998), 103 B.C.A.C. 1; 169 W.A.C. 1 (C.A.), leave to appeal dismissed [1998] 1 S.C.R. ix; 227 N.R. 298; 120 B.C.A.C. 87; 196 W.A.C. 87, consd. [para. 54].

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, consd. [para. 54].

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.), consd. [para. 55].

United States of America v. Earles (2003), 176 B.C.A.C. 231; 290 W.A.C. 231; 171 C.C.C.(3d) 116; 2003 BCCA 20, consd. [para. 60].

Burke, Re, [2001] 1 A.C. 422; 261 N.R. 1 (H.L.), consd. [para. 64].

Hurley v. United States of Mexico et al. (1997), 101 O.A.C. 121; 116 C.C.C.(3d) 414 (C.A.), dist. [para. 75].

Wollaston v. Minister of Manpower and Immigration, [1973] S.C.R. 102, refd to. [para. 76].

Xie v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C. 372; 239 F.T.R. 59; 2003 FC 1023, consd. [para. 82].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, consd. [para. 83].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, consd. [para. 85].

Statutes Noticed:

Extradition Act, S.C. 1999, c. 18, sect. 3(1)(b) [para. 30]; sect. 3(3) [para. 19]; sect. 29(1)(b) [para. 29].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 105(3) [para. 78]; sect. 105(4) [para. 81].

Counsel:

K. Maydak, appearing on his own behalf;

D.J. Strachan, for the respondents, At­torney General of Canada and Minister of Justice;

R.K. Reimer, for the respondent, Minister of Citizenship and Immigration.

This appeal was heard at Vancouver, British Columbia, on May 11, 2004, by Prowse, Oppal and Lowry, JJ.A, of the British Columbia Court of Appeal.

The decision of the Court of Appeal was delivered on September 22, 2004, by Oppal, J.A.