U.S.A. v. Cheema et al

2003 BCSC 1485internet.doc United States of America v. Cheema et al

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: U.S.A. v. Cheema et al, 2003 BCSC 1485 Date: 20030930 Docket: CC980093 Registry: Vancouver In the matter of the Extradition Act, R.S.C. 1999 c. 18 Between: The Attorney General of Canada on behalf of The United States of America Applicant/ Requesting State And: Ranjit Cheema, Troy Lorenz and Saliendra Narayan Respondents Before: The Honourable Madam Justice Bennett Reasons for Judgment Ban on Publication pursuant to s.26 of the Extradition Act - has been lifted as of October 22, 2004 Counsel for the Attorney General of Canada D.J. Strachan & J.G. Johnston Counsel for the Respondent, Cheema D.J. Martin & J.P. Quenneville Counsel for the Respondent, Narayan B. Craig Counsel for the Respondent, Lorenz J. Turner Date and Place of Hearing: June 9 and 10, 2003 Vancouver, B.C. [1] On June 10, 2003, I permitted the fugitives to call evidence on a voir dire in an effort to demonstrate that there has been an abuse of process in this case. I gave brief reasons with further reasons to follow. These are the reasons, which serve as supplementary reasons. [2] The United States of America (USA) seeks to extradite the three fugitives on drug offences. The fugitives argue three points: 1. The conduct of the RCMP in Canada was illegal.

2. The conduct of the RCMP in Pakistan was illegal.

3. The one-time agent for the RCMP, Khan, operated illegally in Canada either with the knowledge and/or at the direction of the RCMP and/or the U.S. Drug Enforcement Agency (DEA). [3] Prior to the hearing I read most, if not all, of the documents, which are now Exhibit A. [4] Counsel for the USA submits that I need not embark on a voir dire because there is no evidentiary foundation to the position that there has been an abuse of process. She relies on the reasons of Dambrot J. in U.S.A. v. Quintin (2000), 73 C.R.R. (2d) 237 at 253 (Ont. Sup. Ct. Just.) where he said: In my view, a judge to whom an application for relief under s. 24 of the Charter is made is not obliged, by the mere fact that an application is brought, to enter into an evidential inquiry or to entertain a prolonged argument. Where the materials placed before the judge, or a summary of the proposed evidence called for by the judge, provide no basis for a finding of a Charter infringement, or no basis for the granting of the remedy sought, then the trial judge is entitled to dismiss the motion. To embark on a lengthy hearing where the outcome is a foregone conclusion is both a waste of judicial resources and an affront to the administration of justice. In support of this position, I rely principally on R. v. Kutynec (1992), 8 C.R.R. 300, 70 C.C.C. (3d) 289 (Ont. C.A). [5] I agree completely with these comments.

The question is whether there is a basis for a finding a Charter infringement in this case. [6] A review of the documents filed demonstrate that there was considerable conflict between the Montreal Drug Section and the Vancouver Drug Section regarding the use of Mr. Khan, as an agent, as well as the proper route of investigation of the fugitive, Mr. Cheema. [7] There is an evidentiary basis to permit an inquiry into the lawfulness of the conduct of the Montreal Drug Section, as well as the conduct of the RCMP in Pakistan. This latter point is of less significance, and if it was an issue standing alone, I would not permit further pursuit of this point. [8] Of more significance is the issue regarding the role of Mr. Khan. [9] The operation planned by the Montreal Drug Section to do what is referred to as a "controlled delivery" of illegal drugs into Canada from Pakistan was terminated at Headquarters, as a result of the decision in R. v. Campbell (1997), 115 C.C.C. (3d) 310 (Ont. C.A.). When this decision was communicated to the RCMP Liaison Officer in Islamabad, he, apparently, referred Mr. Khan to the DEA. The DEA, apparently, would not investigate the matter without U.S. suspects. Mr. Khan came to Vancouver, B.C. in April, after the Canadian investigation was terminated, to meet with the RCMP from Montreal and with the fugitive, Mr. Cheema. [10] There is a live issue, and an

evidentiary basis, regarding the purpose of Mr. Khan's trip to Canada. The issue is whether he was acting under the auspices of either the RCMP or the DEA or had his own hidden agenda. [11] In U.S.A. v. Licht, [2002] B.C.J. No. 1814 (Q.L.) (B.C.S.C.), Dillon J. found an abuse of process where a DEA agent entered Canada illegally, and illegally furthered a police investigation in Canada. Justice Dillon found, at para. 64, that the conduct of the U.S. agents constituted an abuse of process and entered a stay of proceedings. [12] Given the documentary evidence tendered and the decision in Licht, I am satisfied that there is an evidentiary basis to justify a voir dire and the calling of viva voce testimony. "E.A. Bennett, J." The Honourable Mr. Justice E.A. Bennett