United States of America v. Babuin

2002BCSC1032 Citation: United States of America v. Babuin Date: 20020715 2002 BCSC 1032 Docket: CC001606 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA In the Matter of the Extradition Act BETWEEN: THE ATTORNEY GENERAL OF CANADA, ON BEHALF OF THE UNITED STATES OF AMERICA APPLICANT/ REQUESTING STATE AND: TIMOTHY RYAN BABUIN RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE GROBERMAN Counsel for the Applicant and Requesting State Deborah J. Strachan Counsel for the Respondent P. Michael Bolton, Q.C. Jason B. Gratl Date and Place of Hearing July 8 and 9, 2002 Vancouver, BC [1] The Respondent in this extradition hearing applies to quash the Authority to Proceed issued by Minister of Justice. The ground for the application is that "the Authority to Proceed lacks sufficient particularity to provide the Respondent with notice of the nature of the conduct alleged against him, and thus is not an authority to proceed as required by section 15(1) of the Extradition Act." The application is brought both pursuant to the Extradition Act and pursuant to section 7 of the Canadian Charter of Rights and Freedoms. [2] The Authority to proceed in this case simply says that the alleged conduct for which the respondent is sought to be extradited in this case corresponds with Canadian offences of "fraud contrary to s. 380 or the Criminal Code" and "mail fraud contrary to s. 381 of the Criminal Code." The Authority to Proceed does not set out the time period or places in which the frauds are alleged to have occurred, nor does it identify the persons defrauded or describe the property of which they were allegedly defrauded. [3] At the close of argument, I advised counsel that I was dismissing the application to quash, and gave brief reasons. I indicated that I would provide more detailed reasons in written form. These are the written reasons. The "Authority to Proceed" Within the Extradition Process [4] The extradition of a person from Canada involves a three-stage process under the Extradition Act, S.C. 1999 c. 18. First, the Minister of Justice has discretion, upon receiving a request for extradition and being satisfied that certain conditions are met, to authorize further proceedings. This is done through the issuance of a document known as an "Authority to Proceed". In its terms, it authorizes the Attorney General to apply for a committal order before the Supreme Court. Pursuant to section 15 of the Extradition Act, the Authority to Proceed must contain the name or description of the person whose extradition is sought, the name of the requesting state, and "the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person." [5] The second stage of an extradition proceeding is the extradition hearing before the court. At this stage, the court must determine whether the evidence presented on behalf of the requesting state discloses a prima facie case against the respondent in respect of an offence listed in the Authority to Proceed. Where it determines that a prima facie case is disclosed, the court issues an Order for Committal pursuant to section 29 of the Extradition Act. [6] If the Court grants an Order for Committal, the third stage of the extradition proceeding is reached. At this stage, the Minister of Justice must decide whether to make an Order of Surrender, under which the Respondent is extradited to the requesting state. [7] It has been said that the Authority to Proceed in an extradition proceeding is analogous to an information or indictment in a domestic criminal proceeding, and that it is designed to give notice to the person sought of what is alleged against him or her: United States v. Drysdale, (2000) 32 C.R. (5th) 163 (Ont. S.C.) at para. 51. [8] While there are elements of similarity between the Authority to Proceed and an information or indictment, it must be recognized that each is a separate, statutorily defined document, and that caution must be exercised in assuming that the requirements applicable to one are also applicable to the other. [9] The issue in this case is whether the Authority to Proceed must provide details of the alleged offences sufficient to allow the respondent to identify the acts forming the basis of the request for extradition. Analogous requirements are expressly mandated for indictments in domestic criminal proceedings by section 581(3) of the Criminal Code, R.S.C. 1985, c. C-46. Previous Decisions of this Court [10] This issue has been before this Court previously. In United States of America v. Shull, No. CC991440, Vancouver Registry, the respondents sought and obtained an order quashing an Authority to Proceed on the basis that it failed to provide details of the alleged offences. In that case, the Hearing Judge held that an Authority to Proceed must set out particulars of the conduct for which extradition is sought. [11] The issue also came before this court in the case of United States of America v. Reumayr, No. CC991033, Vancouver Registry. In that case, the court refused to follow Shull, holding that it was wrongly decided, and that it was an unconsidered judgment given in circumstances where the exigencies of the hearing required an immediate decision without opportunity to fully consult authority. Accordingly, the Judge in Reumayr did not consider that the decision of this court in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 prevented him from departing from the decision in Shull. [12] Had I been the Extradition Hearing Judge in Reumayr, I might not have characterized the decision in Shull as coming within an exception to Re Hansard Spruce Mills. It is likely that I would have followed Shull as a matter of comity, though I think that it was wrongly decided. Having said this, I am arguably bound, as a matter of comity, to now follow Reumayr. There are no exceptions to the principles set out in Re Hansard Spruce Mills that would allow me to depart from it. In any event, as I have said, I believe that it reaches the correct result, for reasons which I will now set out. The Authority to Proceed and the Doctrine of Specialty [13] In arguing that the Authority to Proceed must specify the transactions giving rise to each alleged offence, the Respondent puts forward a number of arguments. First, he argues that such detail is necessary for the purposes of applying the "doctrine of specialty", a fundamental doctrine in the law of extradition. [14] The doctrine of specialty ordinarily prohibits the requesting state from putting an accused on trial for any offences other than the specific offences for which he or she was extradited. The doctrine is expressly referred to in both section 40 of the Extradition Act and in Article 12 of the Treaty on Extradition Between Canada and the United States of America. Counsel have referred me to the case of Regina v. Buck (1917), 55 S.C.R. 133 as an example of the application of the doctrine of specialty in Canada. [15] An Order of Surrender in an extradition case defines the conduct for which a person is being extradited. In order for the doctrine of specialty to be properly applied, the Order of Surrender ought to set out the offences for which extradition is granted in sufficient detail to prevent the requesting state from expanding the charges against the extradited individual beyond those contemplated in the extradition proceedings. [16] Section 58(b) of the Extradition Act sets out the requirements of an Order of Surrender. It states that the Order must "describe the offence in respect of which the extradition is requested, the offence for which the committal was ordered or the conduct for which the person is to be surrendered." Thus, it would appear that the Minister of Justice may use any one of three formulations to describe the subject matter on which extradition is granted. [17] The "offence for which the committal was ordered" is, presumably, a reference to section 29(2)(b) of the Extradition Act, which provides that the Order of Committal must contain "the offence set out in the authority to proceed for which committal is ordered". Section 15(3)(c) merely requires the Authority to Proceed to name the offence under Canadian law corresponding to the alleged conduct of the person sought to be extradited. [18] The respondent argues that the ambit of the doctrine of specialty would be inappropriately restricted if Orders of Surrender merely stated the name of the Canadian offence corresponding to the alleged unlawful conduct of the person who is extradited. If the Respondent in this case were to be extradited, an Order of Surrender simply stating that he was extradited for prosecution in the United States for offences corresponding to "fraud and mail fraud" would be inadequate to give the Respondent appropriate protection under the doctrine of specialty. [19] I agree with the Respondent that such an Order of Surrender would not be appropriate from the standpoint of the doctrine of specialty. I do not agree, however, that the result is that I must find the Authority to Proceed inadequate. Nothing in the Extradition Act compels the Minister to limit the description of the conduct for which a person is extradited to the words used in the Authority to Proceed. Where the words used in the Authority to Proceed provide only a generalized indication of the alleged conduct for which extradition is ordered, it would not be appropriate to use those words in the Order of Surrender. This, however, does not affect the validity of the Authority to Proceed. The Authority to Proceed and the Minister's Decision [20] A second argument put forward by the Respondent is that unless the Authority to Proceed provides greater detail of the offences for which extradition is sought, the Minister will have insufficient information during the third stage of the extradition proceedings to determine what offences may be subject to the Order of Surrender. [21] I do not accept this proposition. It is true that where an Order for Committal is made, it will normally simply repeat the wording of the Authority to Proceed in setting out the offence. The Order of Committal is not, however, the only document transmitted by the Extradition Hearing Judge to the Minister. Pursuant to section 38 of the Extradition Act, the judge must also transmit to the Minister a copy of all of the evidence adduced at the Extradition Hearing, and "any report that the judge thinks fit". The Order of Committal, then, is not the only information received by the Minister as to the details of the alleged offence for which the Court commits a respondent. The record transmitted to the Minister will be sufficient to allow the Minister to determine the scope of the offences at issue even if the Authority to Proceed is, by itself, insufficiently precise to serve that purpose. Notice to the Respondent [22] It is also argued unless the Authority to Proceed provides full details of the offences on which extradition is sought, the hearing will violate section 7 of the Charter. The principles of fundamental justice, it is argued, require that the Respondent have adequate notice of the allegations that he is facing on the extradition hearing. [23] I agree completely with the proposition that the Respondent requires more detail of the alleged offences than is contained in the Authority to Proceed. I do not agree, however, that the detail needs to be provided through the medium of a more detailed Authority to Proceed. [24] In this case, I am told that the Respondent has received detailed disclosure of the evidence that is to be tendered at the hearing. This goes a long way, in my view, to answering the allegation that he has not been given adequate notice of the case to be put forward. [25] In complex cases, merely providing the respondent with minutes of evidence may be insufficient to meet the requirements of fundamental justice. The evidence may be voluminous and complicated, and the manner in which the requesting state wishes to organize it into an allegation of an offence may be less than transparent. In such cases, fundamental justice may require that the Attorney General, representing the requesting state, provide an indication of the allegations that it says are material to its case. [26] I do not agree, however, that the Minister of Justice has the duty to provide this information in the Authority to Proceed. In my view, the duty to provide this information lies with the Attorney General, acting on behalf of the requesting state, and it may be satisfied in a variety of ways. In a straightforward case, ordinary disclosure of the evidence available to the Attorney General may be sufficient; in a complex case, some additional material may be necessary, but it need not be embodied in the Authority to Proceed. An informal document, such as a letter from counsel for the Attorney General, may provide appropriate notice of the allegations to be canvassed at the extradition hearing. Admissibility of Evidence [27] It is argued that the hearing judge will require details of the allegations against the respondent in order to make rulings on admissibility of evidence. This is a sound observation; only evidence that is relevant to the material allegations can be admitted. [28] Even a broad Authority to Proceed, of the sort filed in this case, can function, to some degree, as a yardstick against which relevance of evidence can be measured. Where greater precision is demanded by the circumstances of the case, the Attorney General must meet that demand. I do not, however, agree with the contention that the demand must be met by the Authority to Proceed. [29] The extradition court is entitled to rely on other representations in determining the scope of the issues before it; the Attorney General's opening may set out the limits of the case to be presented; the detailed charges from the requesting state may also do so, where they are filed in evidence. [30] In any event, as I have already indicated, the absence of a requirement for detailed allegations in the Authority to Proceed will not absolve the Attorney General of the duty to give proper notice of those allegations to the Respondent. If there is any doubt as to the scope of the allegations before the extradition court, resort may be had to the documents making up notice of the allegations to the respondent. Conclusion [31] The Extradition Act is a complete code for the hearing of extradition matters. Together with provisions of the Criminal Code that are incorporated by reference, it alone sets out the procedures to be followed and the documentary requirements for extradition. Subject always to a requirement that proceedings comply with constitutional norms, the court is not entitled to engraft additional procedural or substantive requirements on top of those provided by the statute. [32] Section 15 of the Extradition Act very clearly sets out the requirements of an Authority to Proceed. It does not include a requirement that the allegations upon which the extradition request is based be detailed; it is, in this regard, in stark contrast to the requirements of section 581(3) in respect of indictments. [33] Nor can such a requirement be said to be implicit in the statute or required by the Charter. While particulars of the allegations being made against a Respondent may be required for various purposes during the course of an extradition proceeding, there is no necessity that the Minister, the Respondent, or the Extradition Hearing Judge find these particulars within the four corners of the Authority to Proceed. [34] I therefore find that the Authority to Proceed in this case complies with the requirements of the Extradition Act and dismiss the Respondent's application to quash it. "H. Groberman, J." The Honourable Mr. Justice H. Groberman