J. 2003 SKQB 481 Q.B.G. A.D. 2003 No. 1063 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: THE UNITED STATES OF AMERICA, as represented by the Attorney General of Canada and ANDEL GRIFFITHS, a.k.a., MICHAEL CAMPBELL, MICHAEL GREEN AND ANDY GRIFFITHS, RESPONDENT H.H. Dahlem, Q.C. for The United States of America and for Attorney General of Canada M.W. Owens for Andel Griffiths JUDGMENT KOCH J. November 14, 2003 [1] Andel Griffiths (“Griffiths”) born September 7, 1975 is Jamaican national living in Saskatoon with his wife Jennifer, Canadian citizen. Griffiths entered Canada April 15, 2003 and is entitled to remain in Canada as permanent resident for the time being. He has permanent resident card which expires May 5, 2008. He has established residence in Saskatoon. [2] The United States of America (“USA”) seeks to extradite Griffiths to face a charge of conspiracy to import into the USA a substance containing cocaine. Griffiths was arrested in Saskatoon on May 28, 2003. On June 16, 2003 he was granted bail pending his extradition hearing. Subsequently the Attorney General of Canada caused to be filed with the court written authority to proceed pursuant to s. 15 of the Extradition Act, 1999, c. 18. Section 24 of the Act obligates the court to proceed with an extradition hearing. Pursuant to s. 29, the hearing must necessarily result in either committal under ss. (1), which places the matter once again before the Attorney General, or discharge under ss. (3). Section 29(1) provides (in part): 29. (1) judge shall order the committal of the person into custody to await surrender if (a) in the case of 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; [3] Each party has filed a motion as follows:(1) a motion dated September 9, 2003 on behalf of the Deputy Attorney General of Canada representing the USA for an order fixing a date for the hearing of the extradition request in this Court.(2) a motion dated September 25, 2003 on behalf of Griffiths for a stay of proceedings on one or more of the following grounds: contempt of court by the Attorney General of Canada for failing to provide proper disclosure; alternatively, the production by the Attorney General of witness statements and other evidence in compliance with the common law duty of procedural fairness as it applies in administrative proceedings; in the further alternative, the production by the Attorney General of witness statements and other information pursuant to s. of the Canadian Charter of Rights and Freedoms. [4] heard both motions concurrently. As the outcome of the motion on behalf of Griffiths will affect the disposition of the motion on behalf of the Deputy Attorney General, will first address the Griffiths motion. [5] The issues with respect to disclosure are as follows:1. It is alleged that the Attorney General has not disclosed all the evidence in his custody or control. Counsel for the Attorney General however has undertaken that everything within the control of the Attorney General has been turned over to the solicitor for Griffiths except only the diplomatic note from USA to Canada which initiated the process, which counsel contends is not relevant to the application for hearing. There has been no investigation in Canada of the alleged offence. The Attorney General has only that information which the USA authorities have seen fit to provide to him. accept the contention on behalf of the Attorney General that the diplomatic note is not relevant at this stage. 2. Griffiths’ counsel alludes to the following statement of Allbright J. of this Court when Griffiths was brought before the Court immediately following his arrest: Mr. Miller: It’s very serious allegation. The Court: Yes, it is and know that it’s would be in Mr. Griffiths’ best interest that all of the material available was disclosed, because know he would want to know everything that he has to deal with. And certainly know, Ms. LeClair-Harding that’s her way of she practises law, in wanting to know what’s there to provide the maximum of assistance to someone such as Mr. Griffiths. And subsequently the Court [addressing counsel for the Attorney General]: You will be providing to Ms. LeClair-Harding the information that she requires. He submits that this obligates the Attorney General to produce the investigational information that USA authorities plan to use to prosecute Griffith. Notwithstanding the able submission of counsel for Griffiths am unable to share his interpretation of the words of Allbright J. It does not follow from these comments of Allbright J. that Griffiths is entitled to disclosure additional to that otherwise required by law. Obviously Allbright J. directed or at least urged the Attorney General to make full and prompt disclosure. do not believe however that he intended to order any disclosure in addition to that otherwise required by law. [6] The hearing judge’s role in an extradition proceeding is limited to determining whether there is prima facie evidence that the act alleged would constitute crime in Canada. La Forest J. in the case of The Republic of Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] S.C.R. 536, 33 C.C.C. (3d) 334, put it this way (at p. 349): [The extradition hearing] is merely to determine whether the relevant crime falls within the appropriate treaty and whether the evidence presented is sufficient to justify the executive surrendering the fugitive to the requesting country for trial there. Responsibility for the conduct of our foreign relations, including the performance of Canada’s obligations under extradition treaties, is, of course, vested in the executive. repeat: the role of the extradition judge is modest one; absent express statutory or treaty authorization, the sole purpose of an extradition hearing is to ensure that the evidence establishes prima facie case that the extradition crime has been committed. See also U.S.A. v. Dynar, 1997 CanLII 359 (SCC), [1997] S.C.R. 462, 115 C.C.C. (3d) 481. [7] In the Mellino case, supra, La Forest J. went on to state at p. 350: In particular, it 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. This would seem to me to be in breach of the most elementary dictates of comity between sovereign states. foreign state obviously has jurisdiction over the actions of its officials, although, no doubt, the executive of this country must, on occasion, consider such matters in exercising its discretion to surrender fugitive. [8] The role of the hearing judge, vis-à-vis, the role of the Minister of Justice was described by Watt J. of the Ontario Superior Court of Justice in the case of Germany v. Schreiber, [2000] O.J. No. 2618 (S.C.J.), as follows: [71] It has been said, and said repeatedly by courts of the highest authority, that the role of an extradition hearing judge is narrow one, confined to what is specified in the enabling statute. That role is to determine whether there is prima facie case that an extradition crime has been committed by the person sought for extradition. [72] Under the Act, the Minister and the extradition judge occupy two (2) different solitudes. The Minister has role at the beginning and the end of the extradition process. The judge discharges his or her function in the middle. Each operates independently of the other, except to the extent that the Minister’s final involvement is contingent on judicial order for committal. Neither intrudes into the other’s area of responsibility. Neither reviews the other’s determination or decision. [9] Because of the limited role of the hearing judge Charter jurisdiction is necessarily restricted to those issues specific to the functions of the extradition hearing. As Arbour J. of the Supreme Court of Canada held in the case of U.S.A. v. Kwok, [2001] S.C.R. 532, 2000 SCC 18 (CanLII), 152 C.C.C. (3d) 225 (S.C.C.), s. 9(3) of the Extradition Act does not confer an expanded Charter jurisdiction upon the extradition judge. It simply permits the extradition judge to exercise the jurisdiction previously reserved for the habeas corpus judge which includes remedies only for Charter breaches that pertain directly to the circumscribed issues relevant at the committal stage of the extradition process. [10] In Thailand v. Karas, 2000 BCSC 1717 (CanLII), [2000] B.C.J. No. 2689 (S.C.), Lysyk J. stated: [32] line of authority under the former legislation and under the Act provides firm support for the proposition that applications for disclosure will be denied unless they are tied to the limited jurisdiction of the extradition judge. [33] The points made in Dynar include the following. The principles of fundamental justice guaranteed under s. of the Charter vary according to the context in which they are raised: para. 128. The context and purpose of the extradition hearing shape the level of procedural protection that is available to fugitive and the extradition process is not to be equated to the criminal trial process: para. 129. Accordingly, it is neither necessary nor appropriate to transplant into the extradition process all of the disclosure requirements set out in Stinchcombe, and developed in subsequent jurisprudence, relating to domestic criminal proceedings and in regard to the accused’s right to full answer and defence in Canadian trial: para. 130. The committal hearing is neither intended nor designed to provide the discovery function of domestic preliminary inquiry: para. 132. While the fugitive is entitled to know the case against him, for purposes of the extradition hearing, he is generally entitled to disclosure only of materials relied upon by the requesting state to establish its prima facie case: paras. 134-35. Disclosure may be required with respect to justiciable Charter issue, but the material before the extradition court must provide an “air of reality” to the contention that there has been violation of the fugitive’s Charter right(s): para. 136 et seq. [11] In recent decision in this Court on an application for detailed disclosure prior to an extradition hearing in the case of United States of America v. Daul, 2003 SKQB 272 (CanLII), [2003] S.J. No. 389 (Q.B.), Krueger J. commented as follows: [9] The right to make full answer and defence is paramount in trial. In extradition hearings guilt or innocent is not in issue. One must also bear in mind that the extradition procedure is based upon treaty where each state assumes that the reciprocating state has fair and just criminal system. The applicant is entitled to disclosure of the materials on which the United States is relying to establish prima facie case. He is not entitled, at the extradition stage, to present his defence on the assumption that fair hearing will not take place at the trial or in order to avoid trial in the foreign state. [11] Disclosure of the information and materials applied for might, if committed, assist the applicant in his attempt to persuade the Minister not to surrender him. That argument has not been advanced, nor is it expedient at this stage. An appeal to the Court of Appeal was dismissed. [12] Counsel for Griffiths argues that the application before Krueger J. in the Daul case was under s. of the Charter and no consideration was given to parallel common law rights advanced on behalf of Griffiths, specifically, denial of natural justice. see no merit in that argument. The fundamental issue is the extent of Griffiths’ right to disclosure of documents and information. If he is not entitled under s. of the Charter to what he has requested then concurrent common law rights cannot serve to expand his entitlement. [13] It follows that the motion on Griffiths’ behalf is without merit and it is accordingly dismissed. [14] am not prepared to award costs against Griffiths’ solicitor as requested by counsel for the Attorney General. [15] The motion on behalf of the Attorney General to set a date for the extradition hearing is granted. The hearing is to proceed on January 6, 2004 at 10:00 a.m. or at such other date and time as counsel may agree upon in consultation with the Local Registrar.
The United States of America sought to extradite the respondent to face a charge of conspiracy to import into the USA a substance containing cocaine. The USA brought a motion to set a date for the extradition hearing. The respondent brought a motion requesting further disclosure and alleged that the USA had not disclosed all of the evidence in its custody or control. HELD: The application for disclosure was dismissed. A date for the extradition hearing was set.