Supreme Court of Canada affirms extradition of Canadian
citizens for alleged support of Liberation Tigers of Tamil Eelam where lower
court found that independent assessment had been conducted and that surrender
would not unjustifiably violate their rights under the Canadian Charter of
Rights and Freedoms
In the following case, the U.S. requested the extradition of
two Canadian citizens, accused of assisting the Liberation Tigers of Tamil
Eelam (LTTE), a terrorist organization involved in insurgency in Sri Lanka. The
Ontario Superior Court of Justice found the evidence sufficient to support the
terrorism charges. The Canadian Minister of Justice ordered the surrender of
the accused to the United States. The Court of Appeal upheld the extradition
decisions, and the Accused appealed.
The Canadian Supreme Court dismisses the appeals and
confirms the surrender. In brief, the record showed that the Minister conducted
an independent assessment and concluded that surrender of the Accused would not
unjustifiably violate their s. 6(1) Canadian Charter of Rights and Freedoms
rights [Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11]. Further, the
Minister’s conclusion that there were sufficient links to the United States to
justify extradition flowed from this independent assessment and did not appear
unreasonable.
Before the Supreme Court of Canada, the Accused/Appellants’
arguments include the following: The extradition violates s. 6(1) of the
Canadian Charter of Rights and Freedoms, which guarantees the right of citizens
to remain in Canada, when the foreign state’s claim of jurisdiction is weak or
when prosecution in Canada is feasible, and the Minister’s review of the
extradition order did not comply with the requirements of procedural fairness.
The Court’s reasoning follows:
“8 Section
6(1) of the Charter provides that “[e]very citizen of Canada has the right to
enter, remain in and leave Canada”. This Court first analyzed the rapport
between extradition and the right to remain in Canada in Cotroni c. Centre de
Prévention de Montréal, [1989] 1 S.C.R. 1469 (S.C.C.). The scheme proposed in
Cotroni was subsequently confirmed and refined in United States v. Kwok, 2001
SCC 18, [2001] 1 S.C.R. 532 (S.C.C.), and in United States v. Lake, 2008 SCC
23, [2008] 1 S.C.R. 761 (S.C.C.). From this jurisprudence, six principles
provide guidance to respond to the interpretation of s. 6(1) proposed by the
appellants.”
“9 First,
Cotroni, Kwok and Lake hold that extradition constitutes a marginal limitation
of the s. 6(1) right to remain in Canada. Although the surrender of a Canadian
citizen to a foreign country impairs the individual’s right to remain on
Canadian soil, s. 6(1) is primarily aimed against exile and banishment, i.e.
exclusion from membership in the national community. As a consequence, this
limitation “lies at the outer edges of the core values” of s. 6(1): Cotroni, at
p. 1481.”
“10 Second, and
flowing from the previous point, extradition will be generally warranted under
s. 1 of the Charter as a reasonable limitation of the right to remain in
Canada: Cotroni, at p. 1483; Lake, at para. 37. This is supported by the
pressing and substantial objectives of extradition: (1) protecting the public
against crime through its investigation; (2) bringing fugitives to justice for
the proper determination of their criminal liability; (3) ensuring, through
international cooperation, that national boundaries do not serve as a means of
escape from the rule of law.”
“11 Third, the
Minister’s discretion to extradite or to prosecute in Canada is a necessary
condition for the effective enforcement of the criminal law, and it attracts a
high degree of deference: Cotroni, at p. 1497; Kwok, at paras. 93‑96; Lake, at
para. 34. The Minister’s assessment of whether the infringement of a fugitive’s
s. 6(1) right is justified under s. 1 involves a determination of whether,
based on his superior expertise of Canada’s international obligations and
interests, Canada should defer to the interests of the requesting state. This
is mostly a political decision. Courts should interfere with the Minister’s
discretion only in the ‘clearest of cases’ (Lake, at para. 30).”
“12 Fourth,
ministerial discretion to extradite is not unfettered. Public authorities must give
due regard and weight to the citizen’s Charter right to remain in Canada in
considering whether to prosecute domestically or order surrender. The Minister
must order surrender only if satisfied that extradition is more appropriate
than domestic prosecution, having balanced all factors which he finds relevant
under the circumstances, such as: · Where was the impact of the offence felt or
likely to have been felt? · Which jurisdiction has the greater interest in
prosecuting the offence? · Which police force played the major role in the
development of the case? · Which jurisdiction has laid charges? · Which
jurisdiction has the most comprehensive case? · Which jurisdiction is ready to
proceed to trial? · Where is the evidence located? · Is the evidence mobile? ·
How many accused are involved and can they be gathered together in one place
for trial? · In what jurisdiction were most of the acts in furtherance of the
crime committed? · What is the nationality and residence of the accused? · What
is the severity of the sentence that the accused is likely to receive in each
jurisdiction?”
“13 Fifth, no
single factor is dispositive. Nor need all relevant factors be given equal
weight. The Minister may decide to grant an extradition request because of one
factor which he finds determinative in a given case. The pertinence and
significance of the ‘Cotroni factors’ vary from case to case: Lake, at para.
30. Nothing precludes the Minister from paying more heed to one factor than
another in a given case. The inquiry is essentially a fact‑based, balancing
assessment within the expertise of the Minister.”
“14 Sixth, the
question of whether a Canadian prosecution is a realistic option is simply one
factor that must be considered. It is not the determinative factor in the Minister’s
assessment: Cotroni, at p. 1494; Kwok, at para. 92; Lake, at para. 37. ¼.” [¼]
“20 No
compelling reasons have been shown to depart from the principles set out in
Cotroni, Kwok and Lake. These principles have been consistently and repeatedly
upheld by this Court. The common theme is that extradition, unlike exile and
banishment, does not lie at the core of the right to remain in Canada under s.
6(1) of the Charter. A Canadian citizen who is extradited to stand trial in a
foreign state does not necessarily become persona non grata: the accused may
return to Canada if he is acquitted or, if he is convicted, at the end of his
sentence or even to serve his sentence in accordance with the International
Transfer of Offenders Act, S.C. 2004, c. 21. Extradition does not violate the
core values of s. 6(1), but rather, it fulfills the needs of an effective
criminal justice system.”
“21 The
appellants have not shown that the considerations on which Cotroni (1989), Kwok
(2001) and Lake (2008) were based are no longer valid. If anything, the march
of globalization calls for increased international cooperation in law
enforcement.” [¼]
“24 The
appellants argue that the Minister’s duty of procedural fairness goes beyond
providing reasons to explain which Cotroni factors prompted his decision.
Procedural fairness, they say, also requires the Minister of Justice to obtain
and disclose the assessment of the Public Prosecution Service of Canada
(‘PPSC’) on whether to prosecute them in Canada. The appellants argue that they
should be given time to respond to the prosecution assessment by the PPSC,
following which the Minister should address their concerns in his final
decision to extradite. They submit that disclosure is important because the
decision not to lay charges in Canada was a key factor in the final decision to
extradite. They add that this would ensure that the prosecutorial authorities’
assessment was not based on erroneous or out‑dated information.”
“25 The Minister
refused the appellants’ requests for this information, stating that he had
provided the appellants with all of the materials which he had considered in
making the decisions on surrender, with the exception of legal advice, and that
he had not been provided with a copy of any PPSC assessment. With respect to
the PPSC’s assessment of prosecution in Canada, the Minister took the position
that the decision whether to prosecute in Canada was only one of many relevant
factors, and pointed out that the appellant’s right of appeal was from the
decision to extradite, not the decision whether to prosecute, which involves
prosecutorial discretion. (See Minister’s Reasons on Surrender re
Sriskandarajah, A.R., vol. I, at pp. 50‑51; see also Minister’s reasons on
Surrender re Nadarajah, at pp. 58‑59.)”
“26 The
appellants’ submission that they are entitled to see the PPSC’s prosecution
assessment cannot be sustained.”
“27 First and
foremost, prosecutorial authorities are not bound to provide reasons for their
decisions, absent evidence of bad faith or improper motives: Kwok, at paras.
104‑108. Not only does prosecutorial discretion accord with the principles of
fundamental justice—it constitutes an indispensable device for the effective
enforcement of the criminal law: Cotroni, at pp. 1497‑98. The appellants do not
allege bad faith. Their request to see the prosecution assessment is a thinly
disguised attempt to impugn the state’s legitimate exercise of prosecutorial
authority.”
“28 Second, as
the Minister pointed out, the ability to prosecute in Canada is but one of many
factors to be considered in deciding whether to extradite a person for
prosecution in another country. Procedural fairness does not require the
Minister to obtain and disclose every document that may be indirectly connected
to the process that ultimately led him to decide to extradite.”
“29 Finally,
concerns that the decision may have been based on out‑dated information are met
by the appellants’ ability to bring full and correct information to the
attention of the Minister. In turn, the Minister must, in good faith, transfer
to the prosecution authorities the information he finds relevant.”
“30 As a matter
of procedural fairness, full Stinchcombe‑type disclosure is not required at the
surrender stage … Stinchcombe, [1991] 3 S.C.R. 326 (S.C.C.)). The Minister must
present the fugitive with adequate disclosure of the case against him or her,
and with a reasonable opportunity to state his or her case against surrender
(Kwok, at paras. 99 and 104), and he must provide sufficient reasons for his
decision to surrender (Lake, at para. 46; Kwok, at para. 83). In this case, the
Minister complied with these requirements.”
“31 I conclude
that the claim of procedural unfairness has not been established.”
“32 The
appellants argue that the Minister’s decisions to order their surrender to the
United_States was unreasonable
because he failed to consider all relevant factors bearing on the Cotroni
assessment. In particular, they submit, the Minister failed to address (1) the
weak American claim of jurisdiction over the appellants’ alleged conduct, and
(2) the ability to prosecute in Canada. Accordingly, extradition was an
unjustifiable limitation on the appellants’ s. 6(1) rights.”
“33 As explained
above, the Minister’s order of surrender is a political decision that attracts
a high degree of judicial deference. The Extradition Act confers broad
discretion on the Minister’s decision to extradite: s. 7.”
“34 In these
cases, the record shows that the Minister properly considered and weighed the
factors relevant to the situation of the appellants. With respect to the
appellants’ first concern, the Minister found that the ‘negative impact of
[their] actions, when considered in concert with the alleged actions of [their]
many coconspirators, would have been felt in jurisdictions outside of Canada’,
implicitly including the United States (A.R., vol. I, at pp. 54 and 60).
Additionally, it seems clear on the facts alleged here that the conduct
described is connected in one way or another with the use of e‑mail accounts,
companies and bank accounts based within the United States. With respect to the
appellants’ second concern, the Minister considered whether prosecution should
proceed in Canada and concluded that this factor did not negate extradition.”
“35 In
concluding that extradition was a justifiable limitation of the appellants’ s.
6(1) right, the Minister provided five reasons which were relevant: the
investigation was initiated and developed by American authorities; charges have
been laid in the U.S.; the U.S. is ready to proceed to trial; all of the co‑accuseds
have been charged in the U.S.; and most of the witnesses are located in the
U.S. Contrary to the suggestion of the appellants (Sriskandarajah factum, at
paras. 78‑82), the Minister did not ascribe determinative weight to the fact
that the PPSC decided not to lay charges in Canada against them. The Minister
conducted an independent Cotroni assessment and concluded that the surrender of
the appellants would not unjustifiably violate their s. 6(1) rights,
principally on the basis of the fact that the U.S. had taken the lead in
investigating and prosecuting the actions of the appellants. The Minister’s
conclusion that there were sufficient links to the U.S. to justify extradition
flowed from this independent assessment and has not been shown to be
unreasonable on the evidence.”
The Court therefore dismisses the appeal and confirms the
orders of surrender.
Citation: United States of America v. Sriskandarajah,
Supreme Court of Canada, 2012 CarswellOnt 15585, 2012 SCC 70, J.E. 2012‑2329,
97 C.R. (6th) 267, 290 C.C.C. (3d) 349, 104 W.C.B. (2d) 845, 45 Admin. L.R.
(5th) 1, 437 N.R. 107 (December 14, 2012) (Docket: 34009, 34013).
****
Patrick Michael Megaro is a partner at Halscott Megaro PA. His primary areas of practice are criminal defense, criminal appeals, post-conviction relief, civil appeals, and civil rights litigation. Attorney Profile at: https://solomonlawguild.com/patrick-michael-megaro; Attorney News at: https://attorneygazette.com/patrick-megaro%2C-esq#ab17a387-a757-4c0f-bc37-81f556fd15ea
