France v. Liang

France v. Liang Collection Decisions of the Court of Appeal Date 2007-10-31 Neutral citation 2007 ONCA 741 Docket numbers C44114, C45148 Judges Laskin, John Ivan; Simmons, Janet M.; LaForme, Harry Smith Subject Criminal Decision Content CITATION: France v. Liang, 2007 ONCA 741 DATE: 20071031 DOCKET: C44114 and C45148 COURT OF APPEAL FOR ONTARIO LASKIN, SIMMONS and LAFORME JJ.A. BETWEEN: THE ATTORNEY GENERAL OF CANADA on behalf of THE REPUBLIC OF FRANCE Respondent and BEN CONG LIANG Appellant AND BETWEEN: BEN CONG LIANG Applicant and THE MINISTER OF JUSTICE FOR CANADA Respondent Gregory Lafontaine for the applicant/appellant Robert Frater and Heather J. Graham for the respondents Heard: April 20, 2007 On appeal from the order of committal of Justice Norman M. Karam of the Superior Court of Justice dated March 23, 2005 on application for judicial review of the March 1, 2006 decision of the Minister of Justice surrendering the applicant to the Republic of France without conditions. LASKIN J.A.: OVERVIEW [1] The central issue on this appeal and application for judicial review is whether the conduct of Canadian and French authorities in extradition proceedings amounted to an abuse of process. [2] In November 2002, in his absence, Ben Cong Liang was convicted of five drug related offences in France . He was sentenced to ten years in jail. In May 2003, Mr. Liang pleaded guilty to several drug related offences in Canada . He was sentenced to five years imprisonment. In February 2004, the Republic of France asked Canada to extradite Mr. Liang so that he could serve his ten year French sentence. In early March 2004 – a day before he was to be released on day parole on his Canadian sentence – Mr. Liang was arrested in connection with the extradition proceedings against him. [3] Both before the extradition judge on the committal hearing and before the Minister of Justice on the surrender decision, Mr. Liang submitted that the extradition proceedings against him amounted to an abuse of process. He contended that the French and Canadian authorities intentionally delayed bringing these proceedings and that this delay severely prejudiced him. He asked either for a stay or for an order that he not be surrendered. Both the extradition judge, Karam J., and the Minister rejected Mr. Liang’s submissions. The extradition judge ordered his committal and the Minister ordered his surrender without conditions. He asks to set aside both orders. [4] In this court Mr. Liang renews his abuse of process submission and argues that the extradition judge and the Minister erred in failing to give effect to it. He also argues that the Minister erred in failing to hold that his surrender would violate his right to remain in Canada under s. 6(1) of the Charter. Finally, he argues that the Minister erred in failing to give proper consideration to his offer to plead guilty in Canada to the conduct that was the subject of the charges in France . [5] Although France still seeks Mr. Liang’s extradition, it is willing to grant him a new trial, and if he is convicted again, to credit against his sentence in France any time he spent in custody in Canada awaiting extradition. B. BACKGROUND i) Facts underlying France ’s extradition request and the committal hearing [6] In August 2000, two men were arrested at the train station at the Charles de Gaulle Airport in Paris. They were carrying approximately twenty-four thousand tablets of MDMA (commonly known as the recreational drug “ecstasy”), which the French authorities seized. The two men admitted that they were part of an international drug smuggling operation and that they took instructions from Mr. Liang. [7] The two men told the French authorities that Mr. Liang had given them airline tickets to go from Toronto to Paris. They said that he then had sent them to Amsterdam to obtain the drugs and transport them to Paris, where they were to mail the drugs to an address he would later supply. In Amsterdam, the two men met with one of Mr. Liang’s associates, who told them to mail the drugs to an address in Toronto when they arrived in Paris. [8] Relying on the statements of these two men, the French authorities charged Mr. Liang with five drug related offences: complicity in unlawfully importing a narcotic (trafficking); complicity in unlawfully transporting a narcotic; complicity in unlawfully possessing a narcotic; complicity in possessing goods deemed to have been unlawfully imported (contraband); and complicity in unlawfully acquiring a narcotic. [9] Mr. Liang was ordered to appear for trial on November 12, 2002. He did not appear. He was prosecuted in his absence and convicted of all five charges. He was sentenced to ten years in prison and permanently banned from French territory. ii) Facts underlying the Canadian charges against Mr. Liang [10] By February 2001, Canadian authorities had become aware of Mr. Liang’s involvement in drug trafficking. They initiated a large scale investigation called “Project Ombrage”. This investigation led them to characterize Mr. Liang as “a mastermind behind this form of drug importation” and “the head of a network of organized criminals responsible for maintaining and operating many hydroponic marijuana grow cultivations throughout the greater Toronto area”. [11] Mr. Liang was arrested in July 2002 and was charged with fifty-eight drug related offences. In May 2003 he pleaded guilty to three of these charges: the importation of ecstasy between March 1, 2001 and December 14, 2001; conspiracy to produce marijuana between April 1, 2001 and January 17, 2002; and conspiracy to traffic in marijuana between April 1, 2001 and January 17, 2002. He was sentenced to five years imprisonment, which was reduced to take account of ten months pre-trial custody. [12] Significantly, none of the fifty-eight charges laid against Mr. Liang in Canada captured any of his conduct in issue in France ’s extradition request and the committal hearing. The time frames differed: the French charges arose out of the August 2000 seizure, which predated “Project Ombrage” by six months. None of the Canadian charges concerned the importation of drugs into France or the possession, transportation, or acquisition of drugs within France . And the Canadian authorities did not lay charges in connection with any acts for which Mr. Liang was convicted in France . C. THE APPEAL AGAINST THE COMMITTAL ORDER i) The committal hearing and Mr. Liang’s submissions on appeal [13] At the hearing before the extradition judge, Mr. Liang acknowledged that the material filed by France in support of its extradition request met the two requirements for committal under s. 29(1)(a) of the Extradition Act, S.C. 1999, c. 18. There was admissible evidence of conduct that had it occurred in Canada would have justified committal for trial in Canada on charges of importation, trafficking, and possession for the purpose of trafficking contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19; and Mr. Liang was the person sought by France. [14] Thus, the only issue at the committal hearing and on the appeal from the committal order was whether the failure to bring extradition proceedings before February 2004 amounted to an abuse of process warranting a stay of proceedings. Mr. Liang submits that the extradition judge’s refusal to grant a stay was unreasonable. In the alternative, he submits that even if the extradition judge’s refusal was supportable on the material filed at the committal hearing, he now has an additional and important piece of evidence that strongly supports a stay. [15] To put these submissions in context I will set out the chronology, which Mr. Liang contends shows an unacceptably long delay in bringing extradition proceedings against him: · On July 17, 2002, Mr. Liang was arrested on the Canadian charges, and on August 1, 2002, was denied bail; · On November 12, 2002, Mr. Liang was convicted in France in his absence; · On December 20, 2002, while Mr. Liang was in custody on the Canadian charges, France requested his provisional arrest. However, he was not arrested; · On May 7, 2003, he pleaded guilty to three charges in Canada and was sentenced to five years in jail; · On January 30, 2004, France certified its record of the case to request Mr. Liang’s extradition to serve the sentence imposed on him in November 2002; · On February 16, 2004, the National Parole Board granted Mr. Liang day parole effective March 6, 2004; · On February 23, 2004, France forwarded its record of the case to Canada ; · On March 4, 2004, the Minister of Justice issued an authority to proceed authorizing the Attorney General to seek a committal order on behalf of France ; · On March 5, 2004, a warrant for Mr. Liang’s arrest was issued under the authority to proceed. He was arrested the same day. He did not apply for bail; · On March 23, 2005, Mr. Liang was committed for extradition; · Mr. Liang remained in custody until September 9, 2005, when he was granted bail. [16] Mr. Liang contends that this chronology shows that the French and Canadian authorities delayed the extradition process for an unacceptably long time. This lengthy delay, Mr. Liang argues, prejudiced him in two ways: he spent more time in custody awaiting extradition than he should have, and more significantly, he was prevented from resolving all the charges against him – French and Canadian – in one jurisdiction at one time. On this latter branch of his prejudice argument, Mr. Liang claims Canada intentionally refused to act on France ’s December 2002 request that he be provisionally arrested. Had he been arrested then, he could have made “his peace” and arranged his affairs. He points out that Canadian courts have disapproved the practice of leaving arrest warrants outstanding and that this disapproval should apply equally to extradition proceedings. [17] The extradition judge found that the delay probably prejudiced Mr. Liang but found no evidence that Canada or France was responsible for it: While it is apparent that the chronology of events demonstrates that any delay and lack of information probably has resulted in prejudice, at least to cause him, at some point, to spend time in pre-trial custody on the French charges, when he could have simultaneously been serving his Canadian sentence, or at worst exposing him to double jeopardy, there is an absence of evidence as to whether responsibility for either the delay, if there was a delay, or non-disclosure can be attributed to the authorities. [18] However, importantly for Mr. Liang’s submission, the extradition judge did observe that had there been evidence the authorities had manipulated the extradition process to cause delay and prejudice him, that may well have amounted to an abuse of process: Certainly, either the manipulation of the extradition process to cause delay in order to maximize the applicant’s incarceration, or the manipulation of the judicial process to mislead him into negotiating a plea agreement in ignorance of the disposition of the French charges, would, if proven, constitute an abuse of process and could be said to disturb the community’s sense of fair play and decency. [19] But the extradition judge found no such evidence, and therefore found no abuse of process. He applied the proper test for a stay, dismissed Mr. Liang’s application, and ordered his committal: However, since the onus rests with the applicant and since there is no evidence before the Court, either of a course of conduct on the part of authorities to delay the process, or even that the length of time in question constituted an undue delay, there is no basis upon which to conclude that there was an abuse of process in that respect. Similarly, there is no evidence that the applicant was misled when negotiating with Canadian authorities, or even that he was unaware of the disposition of the French allegations at the time. While it seems highly problematic, that he would not have been informed by notice in writing of his conviction and sentence, I certainly cannot conclude that such a failure by itself constitutes an abuse of process. After careful consideration of the circumstances in this case, in the absence of evidence supporting the allegations of abuse of process, I am unable to find a violation of the fundamental principles of justice that underlie the community’s sense of fair play and decency. It, therefore, does not meet the “clearest of cases” test, so as to justify a stay of these proceedings, and accordingly, this application is dismissed. [20] In renewing his argument for a stay, Mr. Liang submits that material disclosed to him after the committal hearing provides the evidence of manipulation the extradition judge said was missing. The evidence, Mr. Liang contends, is contained in a September 13, 2005 memorandum prepared for the Minister, which includes a diplomatic note from France dated December 20, 2002 supporting its request for Mr. Liang’s provisional arrest. The memorandum shows two things: one, an ongoing dialogue between French and Canadian authorities well before the Canadian charges were dealt with, in which the RCMP asked for France’s assistance in its investigation into Mr. Liang’s activities; and two, Canada made a decision around December 20, 2002 not to act on France’s request for a provisional arrest warrant. Mr. Liang submits that this “fresh” evidence ought to be admitted on the appeal of his committal order and that it would have affected the extradition judge’s decision to commit. ii) Analysis [21] It is well established that the doctrine of abuse of process applies to extradition proceedings to protect the integrity and fairness of those proceedings. See R. v. Cobb (2001), 152 C.C.C. (3d) 270 (S.C.C.); and R. v. Larosa (2002), 166 C.C.C. (3d) 449 (Ont. C.A. ). The question on this appeal is whether the extradition judge erred in concluding that the integrity and fairness of Mr. Liang’s extradition proceeding was not compromised. In my view, he did not. And the new evidence proffered on the appeal would not change the result of the committal hearing. I say this for a number of reasons. [22] First, the record is silent why Canada did not act on the request for a provisional arrest in December 2002, and therefore to suggest that Canada did so for an improper purpose is mere speculation. Indeed, it is quite plausible that Canada did not act because at the time Mr. Liang was detained in custody. Thus, a warrant for his provisional arrest, which under s. 13(1)(a) of the Extradition Act is generally issued to prevent a person from escaping or committing an offence, was unnecessary. In short, there is no evidence of manipulation or any other state misconduct in Canada ’s failure to act on the provisional arrest request. [23] Second, I see nothing objectionable in the RCMP’s request for France ’s assistance in its investigation. Moreover, the request occurred well before Mr. Liang was convicted in France , and therefore did not cause any delay in his extradition proceeding. [24] Third, and perhaps most important, Mr. Liang’s submission on abuse of process is based on the indefensible proposition that he had the right to plead guilty in Canada to all charges arising out of his international drug trafficking. He has no such right. I agree with the Attorney General’s argument that criminals such as Mr. Liang whose crimes know no borders run the risk that any of the countries harmed by their actions may justifiably demand that they answer for their actions in that country. [25] This is particularly so in Mr. Liang’s case because even if he were to plead guilty in Canada to conspiracy to import drugs into Canada , that plea would not capture the conduct that underlies the French convictions. It would not capture Mr. Liang’s conviction for the importation of drugs into France or his convictions for the transportation, possession, and acquisition of drugs within France . Thus, any delay in the extradition proceedings did not affect his ability to resolve all of his charges at once in one jurisdiction. He simply was not entitled to do so. [26] Fourth, the record contains no evidence that Mr. Liang was misled by Canadian or French authorities or that information concerning the convictions in France was withheld from him when he negotiated his plea and sentence agreement in Canada . To the contrary, at his bail hearing in August 2002, Mr. Liang became aware that he was under investigation in France . Yet, he apparently made no inquiries about his legal jeopardy in France before he pleaded guilty in Canada in May 2003. His own lack of due diligence seriously undercuts his argument on prejudice and unfairness. [27] Fifth, although Canadian courts have rightly criticized the practice of holding warrants of arrest and not acting on them, this criticism is directed to domestic proceedings and not extradition proceedings. See for example R. v. Cardinal (1985), 21 C.C.C. (3d) 254 (Alta. C.A. ); and R. v. Parisien (1971), 3 C.C.C. (2d) 433 (B.C.C.A.). In domestic proceedings, an accused generally has the right under s. 478(3) of the Criminal Code to consolidate charges laid in different jurisdictions and have them dealt with in one province. No similar right exists in extradition proceedings. A person subject to several extradition requests cannot gather up these requests and insist on having them dealt with in one country. [28] Sixth, it is much harder to obtain a remedy for delay in an extradition proceeding than for delay in a domestic prosecution because activities that cross national boundaries and involve different legal systems are inevitably complex. As La Forest J. said writing for the majority of the court in R. v. Mellino, [1987] 1 S.C.R. 536 at 554-5, “[I]t is not the business of an extradition judge to assume responsibility for reviewing the actions of foreign officials in preparing the evidence for an extradition hearing.… Nor is an extradition judge empowered to weigh the ultimate issue of whether delay will affect the trial of the action in a foreign country.” Moreover, the delay in bringing extradition proceedings in Mellino was considerably longer than that in the present case. Yet, the Supreme Court of Canada concluded that the delay in Mellino did not constitute an abuse of process or a contravention of the principles of fundamental justice. If it did not do so in Mellino, it is difficult to see how it does in this case. [29] Seventh, and finally, any possible prejudice Mr. Liang may have suffered because of the delay in the extradition proceedings is significantly attenuated by two considerations: France is willing to grant him a new trial, and if he is convicted again, it is willing to credit against his sentence any time he spent in pre-extradition custody in Canada . [30] To obtain a stay, Mr. Liang must show an abuse of process – a serious compromise of the integrity and fairness of the extradition process – on the clearest of cases standard. He has not done so. His appeal against the committal order must fail. D. THE APPLICATION FOR JUDICIAL REVIEW OF THE SURRENDER ORDER [31] Mr. Liang also applies to judicially review the Minister’s surrender order. He makes three submissions in support of his application. First, he says that the Minister should not have made a surrender order because surrender would amount to an abuse of process. Second, he says that the Minister should have refused surrender because surrender would violate his right to remain in Canada under s. 6(1) of the Charter. And third, he says that the Minister committed a reviewable error in failing to properly consider his undertaking to plead guilty in Canada . i) Abuse of process [32] I have concluded that the committal proceeding should not be stayed for abuse of process. For the same reasons, I also conclude that Mr. Liang has not shown that the surrender order should be set aside for abuse of process. In the language of s. 44(a) of the Extradition Act, surrendering Mr. Liang is not “unjust or oppressive”. ii) Section 6(1) of the Charter [33] Mr. Liang is a Canadian citizen. Section 6(1) of the Charter gives him a constitutional right to remain in Canada . That right is subject to reasonable limits, including extradition under the act and the Extradition Treaty Between the Government of the Republic of France and the Government of Canada, 17 November 1988. However, in deciding whether to order surrender, the Minister was required to take account of Mr. Liang’s constitutional right to remain in Canada . See United States of America v. Cotroni, [1989] 1 S.C.R. 1469. [34] Mr. Liang submits that the Minister made two reviewable errors in failing to conclude that surrender would violate his constitutional right to remain in Canada : the Minister wrongly held that Canada had no jurisdiction to prosecute Mr. Liang on the substantive offences for which France sought his extradition; and he failed to consider in any meaningful way Articles 5 and 6 of the Treaty between Canada and France or the factors he is directed to weigh in deciding whether to order surrender. [35] For reasons that I will elaborate on, I accept that Canada had jurisdiction to prosecute Mr. Liang for some of the conduct on which the French charges were based but the Minister’s “jurisdictional error” was immaterial. I do not agree that the Minister failed to consider the Treaty or the factors bearing on his surrender decision. He did consider and balance the important factors. His determination that on balance the factors favoured ordering Mr. Liang’s surrender is entitled to significant deference from this court. I would not interfere with the Minister’s determination. [36] Canada likely could have prosecuted Mr. Liang for conspiracy to import drugs into Canada from France . To the extent that the Minister erred in holding otherwise, his error is immaterial for two reasons. First, he concluded, reasonably in my view, that “even if some form of prosecution in Canada were possible,” he “would yield to the superior interest of the Republic of France in prosecuting this matter.” [37] Second, even if prosecuting Mr. Liang was a possible option, that does not by itself bar extradition. If it did, it would bar extradition in many cases where it was obviously warranted and would effectively frustrate the international efforts of law enforcement to combat international criminal enterprises. [38] The Minister must decide not just whether prosecution in Canada is a possible or a realistic or an equally effective option, but whether it is a desirable option having regard to our country’s international obligations and a legitimate request from one of our extradition partners. See United States of America v. Kwok, [2001] 1 S.C.R. 532 at 579. In so deciding the Minister must weigh a number of factors. Whether prosecution in Canada is a realistic option is only one of these factors. It is not, in the words of Arbour J. in Kwok at 579, “a determinative constitutional requirement”. [39] These factors that the Minister must consider have come to be called “the Cotroni factors” because La Forest J. approved them in his reasons in that case, and they are replicated in the policy statement governing the Minister’s decision whether to extradite a Canadian citizen. [40] This brings me to the second error Mr. Liang argues that the Minister made in ordering surrender. Mr. Liang contends that the Minister failed to meaningfully consider either these factors or Articles 5 and 6 of the Treaty. I begin with the two Treaty provisions. Both provisions address when extradition may be refused, and both are permissive. Article 5.1 states: Extradition may be refused: 1. if the person sought is being prosecuted by the requested State for the offence for which extradition is requested or if the competent authorities of the requested State have decided, in accordance with the procedure provided by the law of that State, not to prosecute or have decided to terminate the prosecution they have instituted. Article 5.1 deals with cases where, for example, Canada has asserted jurisdiction over the offences and dealt with them. It does not apply here as the August 2000 seizure in France has never been the subject of Canadian charges. [41] Article 6.1 states: Extradition may be refused if, under the law of the requested State, the offence for which the person is sought was committed in whole or in part in the territory of the requested State or in any other place subject to the jurisdiction of that State. This Article gives the Minister discretion to refuse extradition if the offence was committed at least partly in Canada . In the light of the Minister’s reasonable conclusion that the substantive offences occurred in France , he had no basis to exercise his discretion to refuse extradition under this Article. [42] I turn now to the Cotroni factors, which the Minister should consider in exercising his discretion whether to extradite a Canadian citizen. These factors are: a. where the impact of the offence was felt or likely to have been felt; b. which jurisdiction has the greater interest in prosecuting the offence; c. which police force played the major role in the development of the case; d. which jurisdiction has laid charges; e. which jurisdiction has the most comprehensive case; f. which jurisdiction is ready to proceed to trial; g. where the evidence is located; h. whether the evidence is mobile; i. the number of accused involved and whether they can be tried in one place; j. in which jurisdiction most of the acts in furtherance of the crime were committed; k. the nationality and residence of the accused; and l. the severity of the sentence the accused is likely to receive in each jurisdiction. [43] The Minister did not expressly advert to all of these factors, but he did point to two of them, both highly relevant to his decision to order Mr. Liang’s surrender: · France had a superior interest in prosecuting Mr. Liang’s conduct. That is unquestionably so. The couriers were arrested with the drugs in France . France ’s sovereignty, not Canada ’s sovereignty, was violated. And as I said previously, a Canadian prosecution would not capture the conduct underlying the French charges. · Key evidence against Mr. Liang is located in France. Although Mr. Liang disputes this by submitting the key witnesses are in Canada , the record does not support his submission. Some witnesses were sentenced to imprisonment and banished from France , but there is no evidence that they are in Canada . [44] Moreover, it is obvious that several other Cotroni factors that the Minister did not expressly refer to favour extradition: the police force that played a major role in the development of the case; the jurisdiction that has laid charges; the jurisdiction that has the most comprehensive case; and, the jurisdiction that was ready to proceed to trial. [45] Also, the Minister took account of two factors that mitigated any violation of Mr. Liang’s right to remain in Canada under s. 6(1) of the Charter: he was entitled to return to Canada if acquitted, or on completion of his sentence in France ; and, if convicted, he could apply for a transfer to serve his sentence in Canada . [46] The Minister’s exercise of discretion on the inappropriateness of a domestic prosecution “attracts a high degree of deference” from a reviewing court: see Kwok at 579. Unless the Minister exercised that discretion unreasonably this court should not interfere. In the light of the considerations referred to by the Minister, his decision that surrender would not violate Mr. Liang’s right under s. 6(1) of the Charter was reasonable. This court has no basis to interfere with it. iii) Mr. Liang’s undertaking to plead guilty in Canada [47] Mr. Liang submits that the Minister failed to properly consider his undertaking to plead guilty in Canada because he misinterpreted the Supreme Court of Canada’s decision in United State of America v. Ross (1996), 104 C.C.C. (3d) 446. In Ross, the Supreme Court, in upholding a surrender order, “substantially” agreed with the reasons of Taylor J.A. of the British Columbia Court of Appeal in (1994), 93 C.C.C. (3d) 500. At 536, Taylor J.A. suggested that the offer of a person subject to an extradition request to plead guilty in Canada to charges relating to the conduct in question is a matter for the Minister to consider in deciding whether to order surrender. [48] In this case, however, the Minister relied on Ross for the proposition that “a person sought for extradition cannot choose the jurisdiction in which he will be sentenced by offering to plead guilty”. For that reason the Minister refused to give Mr. Liang’s undertaking any weight. As counsel for Mr. Liang pointed out, that proposition likely comes from the concurring reasons of Finch J.A. in Ross, not from the reasons of Taylor J.A. [49] Nonetheless, even if the Minister’s reliance on Ross was misplaced, it does not assist Mr. Liang. At its highest, Mr. Liang’s undertaking is a factor for the Minister to consider. It is not determinative of where he should be prosecuted. Moreover, Mr. Liang’s purpose in undertaking to plead guilty in Canada is undoubtedly to obtain a less severe sentence than he received or likely would receive if convicted anew in France . That purpose – Taylor J.A. recognized in Ross – does not justify refusing extradition. And, to repeat again what I said earlier, a charge in Canada would not encompass the conduct that lies at the heart of the charges in France . Mr. Liang’s undertaking therefore affords no basis to refuse France ’s legitimate request to extradite him. [50] I would dismiss Mr. Liang’s application for judicial review. E. CONCLUSION [51] The extradition proceedings against Mr. Liang did not constitute an abuse of process. Surrendering him to France does not violate his right to remain in Canada under s. 6(1) of the Charter. And the Minister did not err in refusing to give effect to Mr. Liang’s undertaking to plead guilty in Canada . [52] I would dismiss both the appeal and the application for judicial review. RELEASED: OCT 31 2007 “John Laskin J.A.” “J.L.” “I agree Janet Simmons J.A.” “I agree H.S. LaForme J.A.”