Korea v. Jung

2019 BCSC 1962 Korea v. Jung IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Korea v. Jung, 2019 BCSC 1962 Date: 20191115 Docket: 27360 Registry: Vancouver In the Matter of the Extradition Act, S.C. 1999, c. 18, as Amended Between: The Attorney General of Canada on Behalf of the Republic of Korea Requesting State And Myung Soo Jung Person Sought Before: The Honourable Mr. Justice Crossin Reasons for Judgment Counsel for the Requesting State: D.B. Majzub Counsel for the Person Sought: T.C. Paisana Place and Date of Trial/Hearing: Vancouver, B.C. September 19, 2019 Place and Date of Judgment: Vancouver, B.C. November 15, 2019 Overview [1] This is a preliminary challenge by the Attorney General of Canada on behalf of the Republic of Korea (the "Requesting State") to the notice of application filed by Mr. Myung Soo Jung (Mr. Jung") on June 14, 2018. [2] In particular the notice of application of Mr. Jung seeks: 1. A stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms on the basis that the extradition proceedings amount to an abuse of process for one or more of the following reasons: a) Canadian immigration authorities sought to deport the applicant for the improper purpose of assisting with the return of the applicant to Korea for prosecution; b) The Minister of Safety and Emergency Preparedness opposed the applicant's refugee claim for the improper purpose of assisting with the return of the applicant to Korea for prosecution; c) The Minister of Justice issued the Authority to Proceed for the improper purpose of circumventing the applicant's refugee claim; and d) The prosecution in Korea is being used as a means to collect the civil debt. 2. A declaration pursuant to section 52(1) of the Constitution Act 1982, that section 105 of the Immigration and Refugee Protection Act, S.C. 2001,c. 27, is inconsistent with section 7 of the Canadian Charter of Rights and Freedoms and is therefore of no force or effect. [3] The Requesting State argues that certain matters raised by Mr. Jung are outside the jurisdiction of the extradition judge, namely: a) Mr. Jung's constitutional challenge to s. 105 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA); and b) Mr. Jung's application to stay the proceedings as an abuse of process on the basis of his allegation that the Korean criminal charges and the related extradition proceedings are being used as a means of collecting a civil debt. [4] The Requesting State seeks Mr. Jung's extradition on the basis of allegations that he defrauded two individuals in connection with property development projects in Korea and Vancouver. [5] After being charged in Korea, Mr. Jung fled to Canada. In September 2010 he filed a refugee claim under the provisions of IRPA. [6] On April 25, 2012 while Mr. Jung's refugee claim was ongoing, the Requesting State submitted a Record of the Case to the Minister of Justice (the "Minister") outlining the central allegations of fraud against him. [7] On January 25, 2013 the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board rejected Mr. Jung's refugee claim. [8] Mr. Jung sought to judicially review the RPD's decision before the Federal Court. In Jung v. Canada (Citizenship and Immigration), 2015 FC 464, Montigny J. set aside the RPD's determination and remitted the matter back to the RPD for reconsideration. [9] The RPD held a second hearing in May 2017. On September 13, 2017, while the RPD decision was still pending, the Minister issued an Authority to Proceed under the Extradition Act, S.C. 1999 c. 18 [Extradition Act], permitting the commencement of extradition proceedings, and suspending Mr. Jung's refugee proceedings. [10] On June 14, 2018 Mr. Jung filed a notice of application with this Court, in which he seeks, inter alia, a stay of proceedings pursuant to s. 24(1) of the Charter, and a declaration pursuant to s. 52(1) of the Constitution Act, 1982, that s. 105 of the IRPA is inconsistent with s. 7 of the Charter and therefore of no force or effect. [11] The jurisdiction of the judge presiding over the committal stage of the extradition process has certain limitations. The jurisdiction over this process is shared between the Minister and the committal judge. Both occupy non-overlapping roles in the process: USA v. Fraser, 2014 BCSC 1641 at para. 30. [12] The jurisdiction of the court is limited to those matters specifically assigned to the committal judge under the Extradition Act. Section 29(1) of the Extradition Act sets out the functions of the committal judge: 29 (1) A judge shall order the committal of the person into custody to await surrender if (a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner; and (b) in the case of a person sought for the imposition or enforcement of a sentence, the judge is satisfied that the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed and that the person is the person who was convicted. [13] While a committal judge has the power to decide constitutional questions, this jurisdiction extends only so far as is necessary for the judge to perform his or her function under s. 29(1) of the Extradition Act: United States of America v. Romano, 2016 BCCA 444 at para. 13. [14] The committal judge may only grant Charter remedies that pertain directly to the circumscribed issues relevant to the committal stage of the extradition process, that is, the determination of whether there is a prima facie case of a Canadian crime: United States of America v. Kwok, 2001 SCC 18 at para. 57. The jurisdiction of the committal judge to address challenges to legislative provisions are only engaged in the context of this determination. [15] The court's Charter jurisdiction does permit it to grant a stay of proceedings on the basis of an abuse of the court's process. In addition, the court maintains an "inherent and residual discretion at common law to control [its] own process and prevent its abuse": United States of America v. Cobb, 2001 SCC 19 at para. 37. In this context, there is no substantial difference between the common law and Charter doctrines (Cobb at para. 36). [16] The jurisdiction in this regard may be exercised in two circumstances. Firstly, "if the actual conduct of the committal proceedings produces unfairness which reaches the level of a breach of s. 7 or an abuse of process"; and secondly, where "proceeding with committal proceedings would amount to an abuse of process or a breach of the principles of fundamental justice no matter how fairly that proceeding might be conducted"; United State of America v. Khadr, 2011 ONCA 358 at para. 47. [17] However, in either case, the person sought must demonstrate a nexus between the conduct alleged to constitute an abuse of process and the committal hearing itself: Khadr at para. 45. Declaration of Invalidity [18] The Requesting State submits that the operation of s. 105 of the IRPA is not relevant to the committal proceeding, consequently the committal judge has no jurisdiction to consider its constitutional validity. [19] Whether s. 105 actually violates the Charter is not the question. It may well. The question here is whether this Court has the authority to consider its constitutionality within the particular framework of the case at bar. Section 105 of the IRPA reads as follows: Suspension if proceeding under Extradition Act 105 (1) The Refugee Protection Division and Refugee Appeal Division shall not commence, or shall suspend, consideration of any matter concerning a person against whom an authority to proceed has been issued under section 15 of the Extradition Act with respect to an offence under Canadian law that is punishable under an Act of Parliament by a maximum term of imprisonment of at least 10 years, until a final decision under the Extradition Act with respect to the discharge or surrender of the person has been made. Continuation if discharge under Extradition Act (2) If the person is finally discharged under the Extradition Act, the proceedings of the applicable Division may be commenced or continued as though there had not been any proceedings under that Act. Rejection if surrender under Extradition Act (3) If the person is ordered surrendered by the Minister of Justice under the Extradition Act and the offence for which the person was committed by the judge under section 29 of that Act is punishable under an Act of Parliament by a maximum term of imprisonment of at least 10 years, the order of surrender is deemed to be a rejection of a claim for refugee protection based on paragraph (b) of Section F of Article 1 of the Refugee Convention. Final decision (4) The deemed rejection referred to in subsection (3) may not be appealed, and is not subject to judicial review except to the extent that a judicial review of the order of surrender is provided for under the Extradition Act. Limit if no previous claim (5) If the person has not made a claim for refugee protection before the order of surrender referred to in subsection (3), the person may not do so before the surrender. [20] Pursuant to this section, the issuance of an Authority to Proceed, which sets the committal process in motion, suspends any ongoing refugee proceedings concerning the person sought for extradition, pending the results of the extradition process. In the event that person is discharged, the refugee proceedings may resume. If however the Minister issues a surrender order, the claim will be deemed to have been rejected. [21] Mr. Paisana, with his usual skill and vigor, submits that this provision prevents a proper consideration of a person's refugee status at the surrender stage of the extradition process. It is submitted a person with refugee status presumptively falls within the ambit of s. 44(1)(b) of the Extradition Act. As such, the Minister must refuse to surrender such a person "if the Minister is satisfied that the conditions which led to the conferral of refugee status still exist and it is not shown that the person sought was or has become ineligible for refugee status": See Németh v. Canada (Justice), 2010 SCC 56, at para. 114. A provision which prevents a person sought for extradition from establishing their eligibility for refugee status, therefore, potentially denies that person the benefit of this presumption at the surrender stage. [22] Mr. Jung urges, as I understand it, that the alleged unfairness and prejudice that inures to Mr. Jung as a consequence of this legislative interplay compromises the integrity of the process of this Court. To proceed, it is submitted, in these circumstances, amounts to complicity by this Court in the ongoing alleged unconstitutional deprivation. [23] In my view I do not appreciate there is a discernible connection between the impugned provision and the functions of the committal judge. The operation of s. 105 has no bearing on either the conduct or consequences of the committal hearing itself. To the extent s. 105 may produce an unfairness rising to the level of a constitutional breach, it is an unfairness confined to the surrender stage of the extradition. [24] I also conclude that this unfairness cannot be said to flow as a consequence of the committal hearing itself. This provision is triggered by the Minister's issuance of an Authority to Proceed, prior to the committal stage of the extradition process. There is simply no palpable nexus between this provision and the committal process. [25] I do not agree that because the fact the committal judge plays a crucial role in the overall extradition process this is sufficient to establish jurisdiction over a provision not specifically engaged in the committal process. To accede to this argument would be to expand the scope of the committal judge's potential jurisdiction to include any challenge to any part of any act that touches on the extradition process. This, it seems to me, is contrary to well-settled law: Italy v. Seifert, 2007 BCCA 407 at para. 74. [26] The task before the committal judge remains the same with or without the operation of s. 105. The role of the committal judge is to determine whether there is sufficient prima facie evidence of conduct, which, had it occurred in Canada, would constitute a Canadian crime. Section 105 of the IRPA is not relevant to this determination. For this reason, I conclude I do not have jurisdiction to consider its constitutionality. b) The abuse of process claim [27] The Requesting State submits that this Court also lacks jurisdiction to consider Mr. Jung's abuse of process claim in so far as it arises from allegations that the extradition proceedings are being used as a means of collecting a civil debt. [28] The Requesting State has framed the issue in terms of comity between legal systems. It is the submission of the Requesting State that the allegations of Mr. Jung amount to an impermissible attempt to question the good faith of the Korean authorities. Accordingly, such an inquiry would undermine the principles of comity and mutual trust and good faith, which are at the heart of the extradition process. [29] In particular, the Requesting State submits that allowing Mr. Jung's abuse of process claim to proceed would violate what it characterizes as the "Mellino principle" as that principle emerges in Argentina v. Mellino, [1987] 1 S.C.R. 536. This principle, as subsequently applied, has been captured as follows: that "an extradition judge has no business inquiring into or questioning the motivation behind the extradition partner's decision to lay criminal charges and pursue extradition": United States v. Rogan, 2014 BCSC 1016 at para. 138. According to the Requesting State, the Mellino principle is wholly dispositive of Mr. Jung's abuse of process claim and, in the result, renders this Court without jurisdiction to consider the matter. [30] Mr. Jung submits that the issue rests on the inherent jurisdiction of the court to control its own process. Mr. Jung places reliance on Attorney General of Canada, on behalf of the Republic of Italy v. Seifert, 2003 BCSC 991 (and on the unreported decision of this Court in United States of America v. Alfred-Adekeye (31 May 2011), Vancouver 25413 (B.C.S.C.). He says that the court may question the bona fides of the Requesting State where its misconduct directly implicates the integrity of the committal hearing itself: Seifert at paras. 54 and 55. Mr. Jung's allegations - namely, that the Requesting State is using the extradition process to pressure him into paying a civil debt - discloses, in his view, exactly this kind of misconduct. As a result, this Court has jurisdiction to consider his abuse of process claim. [31] The committal judge's jurisdiction to grant a stay of proceedings for an abuse of process is rooted in the courts "inherent and residual discretion at common law to control [its] own process and prevent its abuse"; Cobb at para. 37. [32] In other words, the committal judge retains what I would describe as an immutable jurisdiction to defend the integrity of the committal process. It is here, rather than in the principle of comity, that the jurisdictional analysis should commence. [33] Generally, the focus of the doctrine of abuse of process is not on the interests of the litigants; nor the outcome of the merits of the matter; and the doctrine ought not be distracted by those concerns. It is a doctrine singularly focused on the preservation of the integrity of the court's process and the independence of the judiciary. [34] Where the Requesting State has engaged in conduct that threatens the integrity of the committal process, comity gives way to the inherent jurisdiction of the court to prevent the abuse of its process. In seeking extradition, the Requesting State "must come before the courts in Canada to show that it has a case against the fugitive that entitles it to proceed to request a surrender order from the Minister". In doing so, it is "governed by the rules of fundamental justice that prevail when liberty interests are at stake, and by the doctrine of abuse of process that governs the conduct of all litigants before the Canadian Courts": Cobb at para. 45. [35] However, where the integrity of the committal process is not at stake, the committal judge has no jurisdiction to consider allegations of misconduct on the part of the Requesting State. The committal judge only has power over the process she or he actually oversees: that is, the committal process itself. It is only where the Requesting State engages in conduct that "reaches into and infects or otherwise prejudices the fairness of an ongoing Canadian proceeding" that the committal judge has the power to intervene: Rogan at para. 38; United States of America v. Tollman 2006 CanLII 31732 (O.N. S.C.) at para. 18. [36] I tend to the view expressed by Mr. Jung that Mellino must be read with some caution. Under the Extradition Act in force at the time Mellino was decided, the committal judge played a peripheral role in the extradition process, and had no authority to consider Charter issues: United States of America v. Kwok, 2001 SCC 18 at para. 4. This of course is no longer the case. Nor does the Supreme Court of Canada decision in M.M. v. United States of America, 2015 SCC 62, alter this principle in any meaningful way, as the Requesting State appears to imply. M.M. merely reaffirms earlier jurisprudence on the role of the committal judge: paras. 55, 56, and 65. [37] The determinative question on this preliminary challenge is not whether Mr. Jung's allegations impugn the good faith of the Requesting State, but rather, whether the Requesting State's alleged conduct threatens the integrity or fairness of the committal process. If so, this Court not only has the necessary jurisdiction to prevent the abuse of its own process, it is duty bound to exercise it. [38] Certainly, it cannot be persuasively argued that allegations of this nature could not constitute an abuse of process in a domestic criminal proceeding. As stated by Ryan J.A. in U.S.A. v. Huson, 2000 BCCA 159: [15] In this country it is an abuse of process to use criminal proceedings to enforce a civil debt. It would be wrong for example, to charge a person with theft, threaten him with jail unless he returned the money, and hold proceedings in abeyance as a club until he paid the money back. [39] Mr. Jung's cites Alfred-Adekeye for the proposition that such conduct would constitute an abuse of process in the extradition context as well. In that case the court found that U.S. authorities had colluded with representatives of a private corporation to pressure a former employee into abandoning a civil lawsuit against the corporation by seeking his extradition. McKinnon J. found that this amounted to an abuse of process and ordered a stay of proceedings: What is the conduct or misconduct alleged? Fundamental to respect for the criminal law is the notion that issuance of criminal proceedings to effect resolution of civil matters ought not to be continents. Such a process encourages unseemly partnerships which, when viewed by a well-informed public, would bring the administration of justice into disrepute. At bar, it would appear Cisco's representatives were very much complicit with U.S. justice authorities to utilize the criminal process to put as much pressure on Mr. Adekeye as they possibly could. [40] I must say I do not find Alfred-Adekeye a concrete authority for this proposition. The issue of jurisdiction does not even appear to have been raised in that case. Accordingly the decision makes no distinction between the criminal proceedings, the extradition proceedings, and the committal process. In particular, there is no discussion of the connection between the Requesting State's conduct and the integrity of the committal process itself. [41] I would pose the question this way: what constitutes conduct that implicates the integrity of the committal process? The jurisprudence has generally adopted the requirement that there be some "nexus" between the Requesting State's conduct and the committal hearing itself: United States v. Whyte, 2016 ONCA 624 at para. 44. This is not always easy to discern. [42] The comments of Arbour J. in Cobb provide useful guidance in this respect. In explaining why the allegations in that case properly fell to the committal judge to consider, she stated the following at para. 44: These concerns, and the remedies to which they give rise, properly belong to the judicial phase of the extradition process as they are not dependent on the ultimate outcome of either the committal or the surrender decision. Nothing the Minister could have done would address the unfairness which would taint a committal order obtained under the present circumstances. [43] As previously stated, conduct that implicates the integrity of the committal process is conduct that would irreparably taint any committal order obtained in the circumstances, regardless of the outcome of the extradition process as a whole. To pose the proposition somewhat differently; the committal judge has jurisdiction over those abuses specific to the committal process, which cannot be remedied later by refusing to surrender the person sought, or obtaining assurances from the Requesting State. [44] In my view, the conduct alleged by Mr. Jung would constitute an abuse of this nature. [45] Mr. Jung's allegations, it is true, represent a variation on the typical allegations canvassed in abuse of process applications in the extradition context. According to Mr. Jung, the Requesting State is using the extradition process to pressure him into paying a civil debt. Instead of alleging improper interference with the committal process, as in Cobb, or an attempt to circumvent procedural protections, as in Tollman, he suggests that the extradition process itself has become the instrument of abuse. [46] The committal judge is not responsible for overseeing the extradition process as a whole. The committal judge is concerned with the specific integrity of the committal process itself. In my view however, any allegation that the extradition process as a whole is being used to exert improper pressure necessarily implicates the integrity of the committal process itself. This is because the committal process exerts its own force of compulsion, independent of the ultimate outcome of the extradition proceedings. The potential misuse of this force of compulsion is very much the concern of the committal judge. [47] This force of compulsion manifests itself in several ways. The committal process provides the Requesting State an opportunity to confront a person sought for extradition with the full case against them. In addition, it inevitably exacts a harsh toll, both financially and emotionally, on the person sought, regardless of the outcome. If the process does result in a committal order, that order represents palpable escalations in that person's peril. It brings a person sought for extradition a step closer to surrender to an eventual prosecution. [48] The misuse of these pressures to coerce an individual into paying a civil debt is an abuse that cannot later be remedied at the surrender stage. By the time the Minister resumes jurisdiction over the process the pressure has already been applied. The Minister cannot undo the abuse by refusing to surrender the person sought, nor by seeking assurances from the Requesting State. In my view, any committal order obtained in these circumstances would be irreparably tainted. [49] This is not an issue of comity; it does not implicate the fairness of the Korean legal system. Rather, it is a question of the integrity of this Court's own process. [50] In this sense, I conclude there is a direct nexus between these allegations and the committal process itself. For this reason, I conclude I have jurisdiction to consider Mr. Jung's abuse of process claim. [51] The application is allowed in part. "Crossin, J."