United States of America v. Robertson, (2013) 346 B.C.A.C. 293 (CA)

JudgeNewbury, Frankel and Stromberg-Stein, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateNovember 14, 2013
JurisdictionBritish Columbia
Citations(2013), 346 B.C.A.C. 293 (CA);2013 BCCA 505

USA v. Robertson (2013), 346 B.C.A.C. 293 (CA);

    592 W.A.C. 293

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. DE.004

William Robertson (applicant) v. Minister of Justice (respondent)

(CA040375; 2013 BCCA 505)

Indexed As: United States of America v. Robertson

British Columbia Court of Appeal

Newbury, Frankel and Stromberg-Stein, JJ.A.

November 20, 2013.

Summary:

Robertson applied for judicial review of an order of the Minister of Justice surrendering him to the United States of America to stand trial on six counts of mail fraud and five counts of wire fraud. Robertson argued that the Minister erred by ordering his surrender for the two counts in the U.S. Indictment, given that the extradition judge had found that there was no mens rea supporting fraud or even attempted fraud, only actions supporting the strict liability regulatory offence of unlawful telemarketing under the Competition Act. Robertson submitted that because he was only committed for the Canadian offence of unlawful telemarketing, the double-criminality rule precluded his surrender on the American fraud offences. His primary position was that a person could not be surrendered unless the Canadian offence for which there had been a committal included an element of mens rea. In the alternative, he submitted that if mens rea was an element of the foreign offence for which extradition was sought, then a person could not be surrendered unless it was also an element of the Canadian offence for which there had been a committal. Robertson also argued that his surrender would be unjust and oppressive in violation of s. 44 of the Extradition Act and ss. 7 and 12 of the Charter because: (a) the extradition judge found that he was a "mere functionary"; (b) he was not committed on the Canadian offence of attempted fraud; (c) the Canadian offence on which he was committed was regulatory in nature; (d) he was aging and in ill health; and (e) he had been in custody for more than one year.

The British Columbia Court of Appeal dismissed the application. By virtue of art. 2(1) of the Treaty on Extradition between Canada and the United States of America, a person could be surrendered if the "conduct" in issue "constitutes an offence" in both countries punishable by a term of imprisonment "exceeding one year". That conduct-based approach to double criminality was also reflected in s. 3(1) of the Extradition Act. The offence of unlawful telemarketing was punishable by more than one year's imprisonment, Accordingly, conduct that supported a committal for that offence was extraditable. That the offence was one of strict liability was of no moment. The court also dismissed Robertson's argument that his surrender would be unjust and oppressive. His role in the telemarketing scheme was properly a matter for the American courts. While it might happen that Robertson would not receive a custodial sentence because the totality of his pre-sentence custody exceeded any term of imprisonment considered to be a fit sentence by the American courts, that potential did not render his surrender either unjust or unacceptable. Robertson also did not provide any details regarding his health to the Minister.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - See paragraphs 25 to 32.

Civil Rights - Topic 3840.2

Cruel and unusual treatment or punishment - What constitutes - Extradition - See paragraphs 25 to 32.

Extradition - Topic 705

Extraditable offences - Canada-U.S. Treaty - Double criminality - See paragraphs 14 to 24.

Extradition - Topic 3342

Surrender to demanding country - Conditions precedent - That surrender not be unjust or oppressive - See paragraphs 25 to 32.

Extradition - Topic 3348

Surrender to demanding country - Conditions precedent - Similarity of crimes between jurisdictions (rule of double criminality) - See paragraphs 14 to 24.

Cases Noticed:

Canada (Minister of Justice) v. Fischbacher, [2009] 3 S.C.R. 170; 394 N.R. 139; 255 O.A.C. 288; 2009 SCC 46, refd to. [para. 19].

Hilts v. Canada (Minister of Justice) (2013), 332 B.C.A.C. 170; 569 W.A.C. 170; 2013 BCCA 42, leave to appeal denied 460 N.R. 397 (S.C.C.), refd to. [para. 20].

Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761; 373 N.R. 339; 236 O.A.C. 371; 2008 SCC 23, refd to. [para. 29].

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. 29].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 12 [para. 26].

Extradition Act, S.C. 1999, c. 18, sect. 3(1) [para. 22]; sect. 44(1) [para. 26].

Treaty on Extradition between Canada and the United States of America, Can. T.S. 1976, No. 3, art. 2(1) [para. 22].

Counsel:

G.N.A. Botting, for the applicant;

S.A. Lord, for the respondent.

This application was heard on November 14, 2013, at Vancouver, B.C., before Newbury, Frankel and Stromberg-Stein, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered orally by Frankel, J.A., on November 20, 2013.

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1 practice notes
  • United State of America v. Robertson, (2014) 474 N.R. 391 (Motion)
    • Canada
    • Supreme Court (Canada)
    • May 8, 2014
    ...in the case of William Robertson v. Minister of Justice , a case from the British Columbia Court of Appeal dated November 20, 2013. See 346 B.C.A.C. 293; 592 W.A.C. 293; 2013 BCCA 505. See Bulletin of Proceedings taken in the Supreme Court of Canada , May 9, 2014. Motion dismissed. [End of ......
1 cases
  • United State of America v. Robertson, (2014) 474 N.R. 391 (Motion)
    • Canada
    • Supreme Court (Canada)
    • May 8, 2014
    ...in the case of William Robertson v. Minister of Justice , a case from the British Columbia Court of Appeal dated November 20, 2013. See 346 B.C.A.C. 293; 592 W.A.C. 293; 2013 BCCA 505. See Bulletin of Proceedings taken in the Supreme Court of Canada , May 9, 2014. Motion dismissed. [End of ......

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