Court of Appeal of Quebec

Deland v. Procureur général du Canada (États-Unis d'Amérique)

500-10-006742-181, 500-10-006743-189, 500-10-006941-189, 500-10-006959-199

Chamberland, Schrager et Rancourt

Appeal  from a judgment of the Superior Court dismissing a motion for further disclosure. Allowed in part. Appeal from a judgment ordering the committal of the appellants pending their extradition. Allowed.

The United States requests the extradition of the appellants so that they may answer to charges corresponding in Canadian law to an offence of weapons trafficking contrary to sections 99 and 463 of the Criminal Code (R.S.C. 1985, c. C-46). The request stems from an investigation into the appellants’ procurement of controlled firearms and ammunition from a fictitious business situated in the Requesting State for the purpose of exporting them to other countries. In particular, the appellants seek disclosure of the evidence pertaining to the approvals obtained by the Requesting State to allow its undercover agent to gather evidence in Canada. They also contest the decision of the Minister of Justice, who signed an extradition order to surrender the appellants to the Requesting State.

Pursuant to section 32(2) of the Extradition Act (S.C. 1999, c. 18), the extradition record must contain sufficient information to determine whether the evidence gathered in Canada satisfies the rules of evidence under Canadian law. It is not necessary to establish an air of reality of a violation of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, II, No. 44, Schedule B, Part I). However, the appellants’ extradition record contains no details of the approvals received by the Requesting State that allowed its undercover agent to gather evidence in Canada, which raises a reasonable possibility that the evidence was not gathered in accordance with Canadian law. As a result, the appellants were entitled to request  further disclosure, and the trial judge made a reviewable error in summarily dismissing that request.

However, the judge properly directed himself in refusing to authorize further disclosure to prove a Charter violation to establish an entrapment defence. The appellants provided no concrete evidence that would lend an air of reality to such a violation.  In addition, the extradition judge cannot consider such a defence, because his role is limited to determining whether there is sufficient evidence of an offence under Canadian law corresponding to the offence alleged in the Requesting State. Therefore, it is up to the trial judge to consider that defence.

Regarding the Minister’s decisions, the scheme of the Extradition Act leads to the conclusion that sending the file back to the extradition judge for a new committal hearing for the person sought necessarily entails that they are set aside.

The case is returned to the Superior Court for a new committal hearing.

*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca

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