2015 NBCA 59, 2015 NBCA 59

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 68-14-CA GREGORY LOGAN APPELLANT GREGORY LOGAN APPELANT - and - - et - THE ATTORNEY GENERAL OF CANADA (On behalf of the United States of America) RESPONDENT LE PROCUREUR GÉNÉRAL DU CANADA (au nom des États-Unis d’Amérique) INTIMÉ Logan v. The Attorney General of Canada (On behalf of the United States of America), 2015 NBCA 59 CORAM: The Honourable Justice Richard The Honourable Justice Quigg The Honourable Justice Baird Logan c.

Le Procureur général du Canada (au nom des États-Unis d’Amérique), 2015 NBCA 59 CORAM : l’honorable juge Richard l’honorable juge Quigg l’honorable juge Baird Appeal from a judicial review of an Order of Surrender under s. 40(1) of the Extradition Act , S.C. 1999, c. 18: January 27, 2015 Appel de la révision judiciaire d’un arrêté d’extradition pris en vertu du par. 40(1) de la

Loi sur l’extradition , L.C. 1999, ch. 18 : le 27 janvier 2015 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: May 20, 2015 Appel entendu : le 20 mai 2015

Judgment rendered: October 1, 2015 Jugement rendu : le 1 octobre 2015 Reasons for judgment: The Honourable Justice Quigg Concurred in by: The Honourable Justice Richard The Honourable Justice Baird Counsel at hearing: For the appellant: Brian H. Greenspan and Jill D. Makepeace For the respondent: Jacqueline Palumbo Motifs de jugement : l’honorable juge Quigg Souscrivent aux motifs : l’honorable juge Richard l’honorable juge Baird Avocats à l'audience : Pour l’appelant : Brian H. Greenspan et Jill D.

Makepeace Pour l’intimé : Jacqueline Palumbo THE COURT The application for judicial review is dismissed LA COUR La demande de révision judiciaire est rejetée. The judgment of the Court was delivered by QUIGG, J.A. I. Introduction [ 1 ] This is an application by Gregory Logan for judicial review of a decision of the Minister of Justice (the Minister) ordering his surrender to the United States of America under the terms of the Extradition Act , S.C. 1999, c. 18 (“the Act ”). [ 2 ] The application was heard simultaneously with an appeal of the Committal Order issued from the court of Queen’s Bench.

The reasons for our dismissing that appeal are rendered separately but are relevant together with these reasons. [ 3 ] The matter involves Gregory Logan who was charged and convicted in Canada for certain offences and is now charged in the United States for offences he says will result in his being effectively convicted twice for the same events. Mr. Logan submits the Minister made many errors, one of which being he erred in the exercise of his discretion by concluding

that, while double jeopardy did attach to some of the offences, it did not attach to others. Appling the standard of review that governs applications of this type, I am of the view there is no basis for interference with the Minister’s decision. For the reasons that follow, I would dismiss the application. II. Background [ 4 ] Mr. Logan engaged in illegal cross-border commercial activities, namely the exportation and sale of narwhal tusks from Canada to buyers in the United States. Canadian and American agencies pursued a collaborative and cooperative joint investigation into his activities.

On December 14, 2011, a summons was issued in New Brunswick for Mr. Logan to appear in Provincial Court on charges of unlawful exportation. Mr. Logan was charged in Canada with approximately 22 counts of unlawfully exporting narwhal tusks to the United States in violation of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, S.C. 1992, c. 52 ( WAPPRIITA ). On November 14, 2012, Mr. Logan was indicted in the United States District Court for the District of Maine on charges relating to unlawful importation and money laundering.

The United States then made a request to the Minister for his extradition. In both countries, the conduct alleged against Mr. Logan is that he acquired narwhal tusks in Canada, negotiated their sale to American purchasers, smuggled them into the United States from Canada, and repatriated the proceeds into Canada. In January 2013, while the Canadian plea resolution discussions between the Public Prosecution Service of Canada (PPSC) and Mr. Logan were ongoing, Mr. Logan became aware of the U.S. charges against him, and his counsel obtained a copy of the U.S. indictment at that time. [ 5 ] On September 25, 2013, Ms.

Cathy Chalifour, acting on behalf of the Minister, authorized the Attorney General to seek an order for Mr. Logan’s committal for extradition on a charge of possession of property obtained by crime. According to Mr. Logan, he was unaware an Authority to Proceed (ATP) had been issued by Canadian officials, and, on October 1, 2013, he pled guilty to seven counts of unlawfully exporting narwhal tusks to the United States, contrary to subsection 6(2) of the WAPPRIITA . According to an agreed statement of facts, between 2003 and 2009, Mr.

Logan illegally exported narwhal tusks from Canada to the United States by concealing them in his utility trailer and driving them across the border at Calais, Maine. Mr. Logan exported an estimated 250 narwhal tusks to the United States during this seven-year period. Mr. Logan was sentenced to an eight-month conditional sentence of imprisonment and a $385,000 fine. At the time of sentencing, the judge stated that the basis for the sentence, including the “substantial fine”, was to address both general and specific deterrence under the WAPPRIITA . At Mr.

Logan’s plea and sentencing hearing, no mention was made of either the U.S. charges or of s. 725(1) (

c) of the Criminal Code that permits a sentencing judge to consider any facts forming part of the circumstances of the offence that could constitute a basis for a separate charge. [ 6 ] As mentioned above, the United States sought Mr. Logan’s extradition on the U.S. charges, and, on September 25, 2013, an ATP was signed under s. 15 of the Act , on behalf of the Minister. The ATP authorized the Attorney General of Canada, on behalf of the United States, to seek a Warrant of Committal against Mr. Logan.

The ATP lists the Canadian offence of possession of property obtained by crime contrary to s. 354 of the Criminal Code as that which corresponds to the conduct alleged by the United States against Mr. Logan. [ 7 ] An application for an extradition arrest warrant was made by the Attorney General of Canada on December 17, 2013, under s. 16 of the Act . The ATP was filed in support of the application. Mr. Logan was arrested on December 19, 2013, pursuant to the extradition arrest warrant. Under s. 24 of the Act , the filing of the ATP requires an extradition judge to hold an extradition hearing. [ 8 ] Mr.

Logan alleges that he pled guilty in October 2013, with the understanding that prosecution in the United States would not be pursued, as the charges to which he pled guilty encompassed all of his conduct in both countries. After learning extradition proceedings had been authorized, Mr. Logan brought an application for a stay of proceedings on the basis that the extradition proceedings constituted an abuse of process. The application was heard by the extradition judge and dismissed on July 22, 2014.

The extradition judge determined the abuse of process claims were not relevant to the committal hearing, and did not engage his residual discretion to stay proceedings; he ordered the applicant committed for extradition. Mr. Logan appeals that decision. As stated above, it is the subject of a separate decision. [ 9 ] In his written submissions to the Minister, Mr. Logan again argued there had been abuse of process by Canadian officials, and he sought a hearing to obtain viva voce evidence from four individuals he had sought (unsuccessfully) to compel to testify at the extradition hearing.

On January 27, 2015, the Minister rejected Mr. Logan’s submissions, and ordered his surrender to the United States for prosecution on the offences of conspiracy to launder monetary instruments and laundering monetary instruments. The Minister declined to order Mr. Logan’s surrender on charges related to smuggling. Mr. Logan seeks judicial review of this decision pursuant to s. 57 of the Act . He asks this Court to allow the application, and quash the warrant of surrender issued by the Minister. III. Grounds for Judicial Review

[ 10 ] Mr. Logan filed an application for judicial review to this Court, challenging the Minister’s surrender decision. He raises seven grounds of review:

a) The Minister of Justice erred in the exercise of his discretion by refusing to deny Mr. Logan’s surrender by concluding that although double jeopardy attached to the offences of cross-border smuggling of narwhal tusks, it did not attach to the offences of conspiracy to launder monetary instruments or laundering of monetary instruments;

b) The Minister of Justice erred in the exercise of his discretion by refusing to deny Mr. Logan’s surrender by failing to properly consider that the surrender of the applicant would violate s. 7 of the Charter as a result of abuse of process;

c) The Minister of Justice erred in concluding that there was no evidence of abuse in this case;

d) The Minister of Justice erred in refusing to grant an oral hearing to obtain the viva voce evidence of four witnesses whose evidence was relevant to a determination of whether there had been an abuse of process;

e) The Minister of Justice erred in the exercise of his discretion by refusing to deny Mr. Logan’s surrender by failing to appreciate that the surrender of the applicant would violate international comity;

f) The Minister of Justice erred in the exercise of his discretion by refusing to deny Mr. Logan’s surrender by failing to properly consider that the surrender of the applicant would violate s. 6(1) of the Charter ;

g) The Minister of Justice erred in the exercise of his discretion by failing to seek assurances from the United States with respect to penalty to ensure that there would be no violation of the principle of specialty or ss. 7 and 12 of the Charter . IV. Analysis A. Jurisdiction of the Court and Standard of Review [ 11 ] Section 57(1) of the Act gives the Court of Appeal exclusive jurisdiction to hear and determine an application for judicial review of the Minister’s decision to surrender Mr. Logan to the United States. The

section provides that grounds for judicial review of the Minister’s decision are the same as those upon which the Federal Court may grant relief under s. 18.1(4) of the Federal Courts Act , R.S.C. 1985, c. F-7. Thus, the Court of Appeal may grant relief if it is satisfied that the Minister:

(

a) acted without jurisdiction, acted beyond [his or her] jurisdiction or refused to exercise [his or her] jurisdiction; (

b) failed to observe a principle of natural justice, procedural fairness or other procedure that [he or she] was required by law to observe; (

c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (

d) based [his or her] decision or order on an erroneous finding of fact that [he or she] made in a perverse or capricious manner or without regard for the material before [him or her]; (

e) acted, or failed to act, by reason of fraud or perjured evidence; or (

f) acted in any other way that was contrary to law.

a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer;

b) n’a pas observé un principe de justice naturelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de respecter;

c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;

d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;

e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages;

f) a agi de toute autre façon contraire à la loi. [ 12 ] In Dionne v. Canada (Minister of Justice) , 2008 NBCA 61 , [2008] N.B.J. No. 414 (QL) , this Court discusses the standard of review respecting surrender decisions: In Lake v. Canada ( Minister of Justice) , [2008] S.C.J. No. 23 (QL) , 2008 SCC 23 , the Court unanimously affirmed that the standard of review of a surrender decision is reasonableness. The Supreme Court has repeatedly affirmed that a great degree of deference is owed to the Minister's decision to order surrender once a fugitive has been committed for extradition.

In Lake , the Court states that the Minister's decision on surrender involves the balancing of many competing considerations, and where those considerations are concerned, the Minister has "superior expertise". In addition, the Supreme Court stated that, as long as the Minister considers the correct legal principles, his decision to surrender should be upheld unless it is unreasonable in the sense that it is "irrational". [para. 20] [ 13 ] In Lake v.

Canada ( Minister of Justice) , 2008 SCC 23 , [2008] 1 S.C.R. 761 , the Supreme Court pointed out that the Minister’s exercise of discretion involves a fact-based balancing exercise and the reviewing court is not entitled to re-weigh the facts and substitute its own view. As long as the Minister considered the relevant facts and reached a reasonable conclusion based on those facts, his decision must be upheld: This Court has repeatedly affirmed that deference is owed to the Minister's decision whether to order surrender once a fugitive has been committed for extradition.

The issue in the case at bar concerns the standard to be applied in reviewing the Minister's assessment of a fugitive's Charter rights. Reasonableness is the appropriate standard of review for the Minister's decision, regardless of whether the fugitive argues that extradition would infringe his or her rights under the Charter . As is evident from this Court's jurisprudence, to ensure compliance with the Charter in the extradition context, the Minister must balance competing considerations, and where many such considerations are concerned, the Minister has superior expertise.

The assertion that interference with the Minister's decision will be limited to exceptional cases of "real substance" reflects the breadth of the Minister's discretion; the decision should not be interfered with unless it is unreasonable ( Schmidt ) (for comments on the standards of correctness and reasonableness, see Dunsmuir v. New Brunswick , [2008] 1 S.C.R. 190 , 2008 SCC 9 ). [para. 34] [ 14 ] Further, in Lake , the court explains that in applying the reasonableness standard to surrender decisions, the reviewing court must appreciate that “the standard does entail more than one possible conclusion”:

Reasonableness does not require blind submission to the Minister's assessment; however, the standard does entail more than one possibleconclusion. The reviewing court's role is not to re-assess the relevant factors and substitute its own view. Rather, the court mustdetermine whether the Minister's decision falls within a range of reasonable outcomes. To apply this standard in the extradition context, acourt must ask whether the Minister considered the relevant facts and reached a defensible conclusion based on those facts.

I agree withLaskin J.A. that the Minister must, in reaching his decision, apply the correct legal test. The Minister's conclusion will not be rational ordefensible if he has failed to carry out the proper analysis. If, however, the Minister has identified the proper test, the conclusion he hasreached in applying that test should be upheld by a reviewing court unless it is unreasonable. This approach does not minimize theprotection afforded by the Charter. It merely reflects the fact that in the extradition context, the proper assessments under ss. 6(1) and 7involve primarily fact-based balancing tests.

Given the Minister's expertise and his obligation to ensure that Canada complies with itsinternational commitments, he is in the best position to determine whether the factors weigh in favour of or against extradition. [para. 41] [15] Therefore, we must ask ourselves whether the Minister considered the relevant facts and reached a defensibleconclusion that falls within a range of reasonable outcomes. In my view, the Minister considered the relevant legal facts and reached areasonable conclusion based on those facts.

In order for the Minister’s decision to be reasonable, the surrender to the requesting statemust not be contrary to s. 7 of the Charter, nor unjust or oppressive under s. 44(1)(

a) of the Act. The test for refusing surrender under s. 7of the Charter is strict. It constitutionally limits the Minister’s ability to order surrender only in cases of a “very exceptional nature”where surrender would “shock the conscience”. It contemplates extreme situations where the nature of the criminal procedure results in apenalty in the requesting state which sufficiently shocks the conscience of Canadians and would render surrender “simply unacceptable”(United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283).

In Burns the Supreme Court provided examples of situations that could beshocking to the Canadian conscience: The "shocks the conscience" language signals the possibility that even though the rights of the fugitive are to be considered in thecontext of other applicable principles of fundamental justice, which are normally of sufficient importance to uphold the extradition, aparticular treatment or punishment may sufficiently violate our sense of fundamental justice as to tilt the balance against extradition.Examples might include stoning to death individuals taken in adultery, or lopping off the hands of a thief.

The punishment is so extremethat it becomes the controlling issue in the extradition and overwhelms the rest of the analysis. The respondents contend that now, unlikeperhaps in 1991 when Kindler and Ng were decided, capital punishment is the issue. [para. 69] [Emphasis in original.] [16] Therefore, in order for the Minister’s decision to be unreasonable on this ground, the record, taken as a whole,must demonstrate that extraditing Mr. Logan to the United States would be “simply unacceptable” or “shocking to the conscience”(Philippines (Republic) v. Pacificador, (ON CA), [2002] O.J.

No. 3024 (C.A.) (QL) leave to appeal dismissed:[2002] S.C.C.A. No. 390). In making this determination, the reviewing court must take into consideration the nature of the justice systemin the requesting jurisdiction and the guarantees it affords the individual being referred (Kindler v. Canada (Minister of Justice), (SCC), [1991] 2 S.C.R. 779, [1991] S.C.J. No. 63 (QL)). B. Does double jeopardy attach to the offences in the United States Indictment? [17] Mr. Logan submits pursuant to s. 47(

a) of the Act and Article 4(1) of the Treaty on Extradition Between theGovernment of Canada and the Government of the United States of America, E101323 - CTS 1976 No. 3 (“the Treaty”), the Minister hasjurisdiction to consider issues of double jeopardy following a committal order. Article 4(1)(

i) states that extradition shall not be granted: When the person whose surrender is sought is being proceeded against, or has been tried and discharged or punished in the territory ofthe requested State for the offence for which his extradition is requested. [18] Furthermore, s. 47(

a) of the Act provides that the Minister may refuse to order surrender if the person soughtwould “be entitled, if that person were tried in Canada, to be discharged under the laws of Canada because of a previous acquittal orconviction”. [19] It is Mr. Logan’s position that the Minister erred in concluding that, although double jeopardy attached to the

offences of cross-border smuggling of narwhal tusks, it did not attach to the offences of conspiracy to launder monetary instruments orlaundering of monetary instruments. He further submits the Minister erred in holding that the statement of facts in support of theCanadian guilty plea “makes no mention of the conduct by which Mr. Logan transported or transferred the proceeds from the sale of thetusks to Canada”. The Minister concluded Mr. Logan was not prosecuted and convicted in Canada for the conduct underlying the moneylaundering offences. [20] Mr.

Logan asserts that, although he was not charged in Canada with discrete money laundering offences, thefinancial aspect of the narwhal tusk transactions was an integral part of the admitted facts in support of his guilty plea to the smugglingoffences, and a significant basis upon which he was sentenced. In Mr.

Logan’s written submission, he states “in other words, it issubmitted that the conduct at issue is simply the transfer of the funds from the buyers in the United States to the applicant in Canada.The methodology or the steps involved in that transfer are more aptly described as the particulars of the conduct” (para. 39 of Mr.Logan’s submission). According to Mr. Logan, although the facts in support of the Canadian guilty plea do not particularize the mannerby which the funds were transferred from the United States buyers to Mr.

Logan in Canada with the same degree of detail as the UnitedStates indictment, particulars were nevertheless included in Mr. Logan’s admissions in Canada. He made precise admissions with respectto the amounts received from the United States customers totaling $692,393.30. The fact that the funds were transferred to Mr. Logan inCanada from his American buyers, as well as an explanation of the means by which that was achieved, were admitted by Mr. Loganduring his guilty plea. In his written submission, Mr.

Logan states the Minister has “blatantly ignored the facts in claiming that the guiltyplea made no mention of the conduct by which Mr. Logan transported or transferred the proceeds from the sale of the tusks to Canada”.According to Mr. Logan, there is a fundamental flaw in the Minister’s analysis where he engaged in a comparison of the generalcharacter of money laundering offences to smuggling offences, rather than examining the particular circumstances of this case.

Heargues the Minister erred in his assessment of double jeopardy by merely considering the basic elements of the offence of smuggling, ascompared to the basic elements of money laundering, and in concluding these were distinct. Mr. Logan says the Minister did not examineor accurately scrutinize the fashion in which the smuggling offences were characterized in the facts in support of the Canadian guiltyplea.

Furthermore, he failed to appreciate that the objective of the smuggling activities, the profit from buyers in United States (throughthe transfer of monetary instruments from the United States to Canada totalling almost $700,000), was of paramount importance in theimposition of sentence. Mr. Logan alleges that, “instead of appreciating that the totality of the Applicant’s conduct was addressed by theCanadian justice system, the Minister examined the issue in a factual vacuum”. The Minister concluded the two offences were distinctand, as a result, double jeopardy did not apply. Mr.

Logan submits the Minister was obliged by s. 7 of the Charter to apply a broaderdefinition of double jeopardy, as endorsed by the Supreme Court in Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1S.C.R. 392, by a proper consideration of double punishment. [21] Mr. Logan further submits the Minister erred in emphasizing that he was not convicted of a money launderingoffence in Canada.

He posits it has been firmly established that, firstly, the proper approach to extradition to and from Canada is conductbased and not offence based; and, secondly, criminal law in Canada permits offenders to be punished for crimes for which they have notbeen specifically charged and convicted in certain circumstances. He submits that, in this case, the nexus between the uncharged moneylaundering offences and the smuggling charges was patently obvious, and conceded by both parties at the time of the Canadianresolution – Mr.

Logan smuggled narwhal tusks into United States for profit. [22] According to counsel for the Attorney General of Canada, the essential conduct of exportation and moneylaundering are distinct and the Minister applied the correct legal test in assessing Mr. Logan’s assertion of double jeopardy, noting that itis the “essential character of the transaction” that determines whether the person sought for extradition is subject to double jeopardy inthe foreign state. To find double jeopardy, the legal characteristics of each offence “must be the same […] both in fact and in law” (seeUnited States of America v.

Andrews, (MB CA), [1991] M.J. No. 323 (C.A.) (QL)). Counsel for the AttorneyGeneral maintains that, in applying this test to Mr. Logan’s circumstances, the Minister made the following findings: […] The essential character of the offence for which Mr. Logan was convicted in Canada is the act of transporting narwhal tusks acrossthe border without a federal permit.

Conversely, the money laundering offences for which he is sought by the United States are based onthe act of transferring monetary instruments obtained in the United States to a place outside of the United States to promote the carryingon of an unlawful activity. The essential character of the smuggling and money laundering offences is, in my view, distinct.[Respondent’s submission, para. 43] [23] I agree. The essential character of the Canadian offence was the act of cross-border smuggling: the act oftaking the narwhal tusks across the border to the United States.

The distinct elements of the American offence of money laundering arebased on specific conduct by Mr. Logan. As stated in the respondent’s submission: […] The essential elements are the transportation, transmission, or transfer of funds or other monetary instruments out of the UnitedStates with the intent to promote or carry on an unlawful activity. Although the smuggling is a component of that offence, as the relevantunlawful activity, it is not the essence of the offence, nor is the fact that he profited from the smuggling. [para. 45] [24] Mr.

Logan submits the Minister ought to have considered all of the facts that were read in on the guilty plea in

assessing double jeopardy, rather than looking at the essential character of the offence. [25] In R. v. Van Rassel, (SCC), [1990] 1 S.C.R. 225, [1990] S.C.J. No. 11 (QL), the SupremeCourt says it is the “nature” of the two charges at issue that must be assessed in determining whether double jeopardy attaches: The defence of autrefois acquit is codified in the Criminal Code. The relevant sections read as follows: 534.

(1) An accused who is called upon to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others. 535.

(1) An accused may plead the special pleas of (

a) autrefois acquit, (

b) autrefois convict, and (

c) pardon. . . .

(5) Where an accused pleads autrefois acquit or autrefois convict it is sufficient if he (

a) states that he has been lawfully acquitted, convicted or discharged under subsection 662.1(1), as the case may be, of the offencecharged in the count to which the plea relates; 537.

(1) Where an issue on a plea of autrefois acquit or autrefois convict to a count is tried and it appears (

a) that the matter on which the accused was given in charge on the former trial is the same in whole or in part as that on which it isproposed to give him in charge, and (

b) that on the former trial, if all proper amendments had been made that might then have been made, he might have been convicted ofall the offences of which he may be convicted on the count to which the plea of autrefois acquit or autrefois convict is pleaded, the judge shall give judgment discharging the accused in respect of that count. To make out the defence of autrefois acquit, the accused must show that the two charges laid against him are the same.

In particular, hemust prove that the following two conditions have been met: (1) the matter is the same, in whole or in part; and (2) the new count must be the same as at the first trial, or be implicitly included in that of the first trial, either in law or on account of theevidence presented if it had been legally possible at that time to make the necessary amendments. It is sometimes difficult to apply the principle of autrefois acquit to charges arising in criminal law systems completely different from ourown.

While the laws of different countries are rarely the same, it must be recognized that the plea of autrefois acquit is based on theprinciple of justice and fairness and that the Criminal Code does not require that the charges be absolutely identical. Despite thetechnical form of the relevant sections of the Criminal Code, the substantive point is a simple one: could the accused have beenconvicted at the first trial of the offence with which he is now charged?

If the differences between the charges at the first and secondtrials are such that it must be concluded that the charges are different in nature, the plea of autrefois acquit is not appropriate. On theother hand, the plea will apply if, despite the differences between the earlier and the present charges, the offences are the same. Forexample, the presence under foreign law of a defence which does not exist under domestic law will not prevent the principle of autrefoisacquit from applying: R. v. Aughet (1918), 118 L.T. 658 (C.A.)[.] [paras. 15-17]

[ 26 ] In my view, assessing the conduct on which Mr. Logan’s guilty plea was based, the offence of money laundering is not discerned. There was no evidence before the Canadian court as to the manner and means by which Mr. Logan transported, transmitted, and transferred the funds from United States to Canada with the intent of carrying on his illegal smuggling activities. I would therefore dismiss this ground of review. C. Does the surrender of Mr. Logan amount to an abuse of process and violation of s. 7 of the Charter? [ 27 ] Mr.

Logan submits the Minister erred in determining his surrender to the American authorities would not violate s. 7 of the Charter as a result of abuse of process. It has been held by the Supreme Court that a Minister’s surrender decision violates s. 7 of the Charter where an individual would face a situation that is “simply unacceptable” or where the nature of the extradition partner’s criminal procedures or penalties “sufficiently shocks the conscience” ( Kindler ).

In Burns , the Supreme Court held the test is whether the extradition is in accordance with the principles of fundamental justice: Use of the "shocks the conscience" terminology was intended to convey the exceptional weight of a factor such as the youth, insanity, mental retardation or pregnancy of a fugitive which, because of its paramount importance, may control the outcome of the Kindler balancing test on the facts of a particular case.

The terminology should not be allowed to obscure the ultimate assessment that is required: namely whether or not the extradition is in accordance with the principles of fundamental justice. The rule is not that departures from fundamental justice are to be tolerated unless in a particular case it shocks the conscience. An extradition that violates the principles of fundamental justice will always shock the conscience. The important inquiry is to determine what constitutes the applicable principles of fundamental justice in the extradition context. [paras. 68] [ 28 ] Mr.

Logan asserts that the “conduct” of Canadian authorities culminating in extradition proceedings against him constitutes an abuse of process. He opines he entered a guilty plea in Canada on the mistaken belief that the disposition encompassed the entirety of his liability and that he would face no prosecution in the United States for the following reasons: 1) his arrest and prosecution in Canada followed the completion of a cooperative, joint investigation by authorities in Canada and the United States; 2) the scope of the conduct captured by the guilty plea was unrestricted, and Mr.

Logan was punished not only for smuggling narwhal tusks into United States, but also for the profit he received as a result; and 3) throughout the resolution discussions with the Canadian prosecutor, counsel for Mr. Logan repeatedly raised concerns with respect to a potential American prosecution, yet disclosure of the fact the Canadian authorities were simultaneously facilitating Mr. Logan’s surrender to the United States was delayed until his plea and sentence had been secured. [ 29 ] I reject those contentions. Overall, the Minister exercised his discretion properly.

He considered all of the information in the record before him and reasonably determined that Mr. Logan’s surrender was justified under the Act as well as the Charter . [ 30 ] Mr. Logan contends the Minister failed to squarely address his submission that the joint investigation by the United States and Canada induced Mr. Logan to believe that Canada had chosen to conduct the prosecution. He also submits the Minister erred in concluding the extradition proceedings were not abusive, and surrendering Mr. Logan to face double jeopardy in the United States clearly offends s. 7 of the Charter . According to Mr.

Logan, the circumstances of this case are egregious having regard to the fact that extradition proceedings were commenced in Canada prior to Mr. Logan’s criminal resolution, yet, he was not advised of this until months later. [ 31 ] With respect to the disclosure issue, the Minister rejected Mr. Logan’s submission that he was entitled to disclosure of the extradition request from the United States, and notice of the subsequent authorization on behalf of the Minister to commence extradition proceedings prior to his guilty plea. Mr.

Logan states the information contained in the ATP would have assisted him to ensure the Canadian resolution encompassed the proceeds component (although Mr. Logan submits that it did), the ground on which surrender has been ordered. Disclosure would have impacted both the viability of the Canadian plea resolution and the propriety of the sentence imposed.

[32] Counsel for the Attorney General states there is no merit to Mr. Logan’s argument that he pleaded guilty inCanada after being misled into thinking his plea would extinguish any chance of his extradition to the United States. She submits theMinister properly concluded the evidence advanced in support of Mr. Logan’s claims of misconduct was incapable of establishing evenan air of reality to any alleged abuse or breach of the Charter, let alone demonstrate that this is one of the clearest cases warranting theexceptional remedy of a refusal of surrender on the residual category of abuse of process.

According to the Attorney General, there wasno basis to conclude that Mr. Logan had been prejudiced or subjected to unfair treatment. He had a copy of the U.S. indictment byJanuary 2013, he was aware that he faced jeopardy in the United States nine months prior to entering his guilty plea in Canada, and evenwith that knowledge, Mr.

Logan declined to make inquiries with the United States regarding what, if any, legal jeopardy he was facing inthat country, prior to resolving the Canadian charges. [33] Setting aside a Minister’s Surrender Order on such a ground is extremely rare and may only be granted in the“clearest of cases”, where the continuation of the judicial proceedings would irreparably prejudice the integrity of the justice system (R.v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, para. 41). It is an exceptional remedy reserved for cases involving the most egregiousforms of state misconduct or other abuse. Mr.

Logan must provide overwhelming evidence that the proceedings are unfair to the pointthey are contrary to the interests of justice. Allegations of abuse by state actors are grave matters and should not be given any credencewithout concrete proof (United States of America v. Anekwu, 2009 SCC 41, [2009] 3 S.C.R. 3, para. 3). [34] The Attorney General gives various examples of the high threshold that must be met to establish a clear case ofabuse of process, warranting a stay of extradition proceedings, or the setting aside of the Minister’s surrender decision: In United States of America v.

Khadr (2011), 2011 ONCA 358 , 273 CCC (3d) 55 (Ont CA), a stay was ordered incircumstances where the evidence introduced at the committal hearing was obtained through the misconduct of the requesting state. TheUnited States had obtained an inculpatory statement from Mr. Khadr while he was detained in Pakistan, subjected to beatings by policeand denied consular services. In United States of America v.

Cobb, 2001 SCC 19 , [2001] 1 S.C.R. 587, there was evidence thatthe foreign authorities had made statements suggesting that if the persons sought contested extradition, they would be given themaximum sentences available and be subjected to homosexual rape in prison. In United States of America v. Tollman (2006), (ON SC), 212 CCC (3d) 511 (Ont CA), the Court found evidence of a deliberate plan to engineer the return of Mr.Tollman to the United States without affording him the opportunity to exercise his rights under the Act, including subjecting him to aharsh prison setting. In Czech Republic v.

Zajicek (2012), 2012 ONCA 99 , 280 CCC (3d) 1 (Ont CA), it was alleged that Mr.Zajicek had been arbitrarily detained and subjected to police brutality and torture in the Czech Republic – the country seeking hisextradition. [Respondent’s submission, para. 65] In my opinion this case is not comparable in any way to these cases. [35] It appears Mr.

Logan’s submission that his guilty plea in Canada was not an informed one, as he was not awarehis extradition would be pursued in the United States on American charges, is based on the mistaken belief he had a right to resolve all ofhis Canadian and U.S. charges in one jurisdiction. “Individuals engaged in cross-border crimes have no such right and they run the riskthat any of the countries harmed by their actions may justifiably demand that they answer for their actions in that country” (France v.Liang, 2007 ONCA 741, [2007] O.J.

No. 4171 (QL), para. 24). [36] A review of the record indicates the Minister properly concluded that the evidence before him disclosed noimproper motive or other abuse of process. There is no evidence the PPSC conducted the Canadian plea resolution discussions or theplea and sentencing proceedings in bad faith, nor is there evidence of any Canadian authority manipulating either the Canadianproceedings under the WAPPRIITA, or the extradition proceedings in such a way as to expose Mr. Logan to prejudice or unfairness.

Inthe absence of evidence of bad faith or improper motive, the Minister was entitled to assume that the Canadian authorities acted inaccordance with their legitimate authority and for no improper purpose. Therefore this ground must fail. D. Was there a need for an oral hearing to achieve procedural fairness? [37] Mr. Logan requested an oral hearing before the Minister in order to present viva voce evidence on the issue ofabuse of process by the following four witnesses:

1) Paul Adams, Senior Prosecutor from the Public Prosecution Service of Canada, who dealt with the Canadian file; 2) Leslie Sampson, a senior investigator from Environment Canada; 3) Glenn Ehler, a senior investigator from Environment Canada; and 4) Cathy Chalifour, counsel at the International Assistance Group, who signed the Authority to Proceed on behalf of the Minister ofJustice. [38] Although the Minister conceded he had the jurisdiction to hold a hearing, he concluded there was no air ofreality to Mr. Logan’s claim of abuse of process, and that Mr.

Logan had received the disclosure to which he was entitled in theextradition process. Mr. Logan claims the abusive conduct lies in the fact that at least one investigator had knowledge, prior to his guiltyplea in Canada, that his extradition to the United States would be sought, yet deliberately withheld this information from him despite theconstitutional disclosure obligation. It is submitted by Mr.

Logan that he ought to have been permitted to probe which participants hadknowledge of the request for his extradition, the timing of the acquisition of that knowledge, the decisions as to whether he would benotified of the request for his extradition, and the reasons why disclosure was delayed. According to Mr. Logan, these facts would haveestablished the depth of the abusive conduct, whether it was simply a single investigator who deliberately withheld relevant informationfrom him, or whether the abuse was systemic. Mr.

Logan maintains these issues are at the heart of the assessment of whether he wasafforded the requisite fairness, and the Minister unfairly denied him that opportunity. [39] According to counsel for the Attorney General, the Minister did not deny Mr. Logan procedural fairness indeclining to conduct an oral hearing. The person sought for extradition has no right to an oral hearing as a matter of procedural fairnessunder s. 7 of the Charter. In Whitley v. United States of America, (ON CA), [1994] O.J.

No. 2478 (C.A.) (QL), reasonsadopted by the Supreme Court, the Court states: The Charter applies to the Minister's surrender decision. But that decision, coming after a judicial determination to commit a fugitive forextradition, principally involves the exercise of executive discretion. It calls into consideration not just the constitutional rights of thefugitive but, as well, Canada's international commitments. For these reasons the Minister's decision is entitled to deference from anappellate court exercising its review power under s. 25.2 of the Act. In Canada v.

Schmidt, (SCC), [1987] 1 S.C.R. 500at p. 523, 33 C.C.C. (3d) 193 (sub nom. Schmidt v. R.) at p. 215, La Forest J., writing for the majority, said: Blind judicial deference to executive judgment cannot, of course, be expected. The courts have the duty to uphold the Constitution.Nonetheless, this is an area where the executive is likely to be far better informed than the courts, and where the courts must beextremely circumspect so as to avoid interfering unduly in decisions that involve the good faith and honour of this country in its relationswith other states.

In a word, judicial intervention must be limited to cases of real substance. and at pp. 526-27 S.C.R., p. 217 C.C.C.: Judicial intervention in this area must, therefore, as I have stated, be restricted to compelling situations bearing in mind that the executivehas the first responsibility in this area and that judicial intervention conveys in Lord Russell C.J.'s phrase in Re Arton, [1896] 1 Q.B. 108at p. 115, "a reflection of the gravest possible kind, not only upon the motive and actions of the responsible Government, but alsoimpliedly upon the judicial authorities of a neighbouring and friendly Power". [para. 21] [40] Where further disclosure or an oral hearing is sought to advance a claim of abuse of process, the person mustraise an air of reality to the abuse that is alleged before such further disclosure or hearing will be warranted.

In R v. Larosa, (ON CA), [2002] O.J. No. 3219 (C.A.) (QL), Doherty JA says: […] “Fishing” expeditions are not tolerated in any judicial proceeding, particularly one which is intended to provide a simple andexpeditious means of responding to Canada’s international obligations. Extradition proceedings cannot be allowed to become de factoroyal commissions. […] [para. 74] [41] In this case, the record before the Minister simply did not disclose evidence of misconduct or other abusiveactions on the part of the Canadian authorities. Mr. Logan did not satisfy the air of reality requirement.

As such, it was reasonable for theMinister to conclude that an oral hearing was not warranted in this case as a matter of procedural fairness.

E. Did the Minister err in the exercise of his discretion by failing to appreciate that the surrender would violate internationalcomity? [42] Mr. Logan urges this Court to find that the Minister erred in failing to appreciate that Mr. Logan’s surrenderwould violate international comity. Mr. Logan was prosecuted and convicted under the WAPPRIITA, which is legislation enacted by theCanadian government to enforce Canada’s international commitment and obligation to regulate the international and interprovincial tradeof animals and plants. The fact that Canada chose to prosecute Mr.

Logan for his commercial, cross-border enterprise involving narwhaltusks demonstrates Canada’s commitment to these international obligations. According to Mr. Logan, the prosecution in the UnitedStates is duplicitous, as the legislation under which Mr. Logan is indicted is the American equivalent of the same internationalcommitment. Mr.

Logan argues that, in this case, Canada has assumed complete and appropriate responsibility for the enforcement ofthe Convention on International Trade in Endangered Species of Wild Fauna and Flora, March 3rd, 1973, 993 U.N.T.S. 243 (CITES)through the prosecution and punishment of its citizens. According to Mr. Logan, the proceeds component of the enterprise was anessential feature of the Canadian resolution. [43] Therefore, in these circumstances, Mr. Logan argues international comity requires that the United Statesrespect the decision of the Canadian government to prosecute him.

Counsel for the Attorney General disputes this position, and says theMinister reasonably rejected Mr. Logan’s argument that the United States has violated international comity by pursuing charges againsthim in this matter. In doing so, the Minister stated: Whether the Canadian prosecution satisfied Canada’s international obligations vis-à-vis the provisions of CITES does not affect theability of the United States to avail itself of a cooperation mechanism to seek the extradition of Mr. Logan from Canada to faceprosecution in the United States.

Enforcing the provisions of the WAPPRIITA does not, in and of itself, prevent Canada from consideringand responding to extradition requests, particularly when the alleged unlawful conduct for which extradition is sought has not been thesubject of punishment in Canada. Indeed Canada equally has an international obligation to comply with requests made under the Treaty. [44] In Idziak v. Canada (Minister of Justice), (SCC), [1992] 3 S.C.R. 631, [1992] S.C.J.

No. 97(QL), at p. 659, the Supreme Court notes that Parliament has chosen to give to the Minister the discretionary authority over whether aperson sought for extradition should be surrendered to an extradition partner. “It is the Minister who must consider the good faith andhonour of this country in its relations with other states” and it is he “who has the expert knowledge of the political ramifications of anextradition decision”.

Ministers’ surrender decisions “should be characterized as being at the extreme legislative end of the continuum ofadministrative decision-making”. [45] The Attorney General comments that an assertion that comity has not been respected by one state indischarging their international obligations is a matter between the contracting states. It is not a claim that may be asserted by anindividual. I agree, and for that reason would reject this ground of review. F. Did the Minister err in the exercise of his discretion by failing to properly consider the surrender of Mr.

Logan would violate s.6(1) of the Charter? [46] Mr. Logan submits the Minister erred in concluding that his surrender would not unjustifiably violate s. 6(1) ofthe Charter. The Minister held the United States had a legitimate interest in prosecuting Mr. Logan and that it was the most effectivejurisdiction in which to proceed with the prosecution in relation to the proceeds. The Minister determined the key evidence in support ofthe money laundering offences was located in the United States, and Mr. Logan’s co-accused were prosecuted there. Mr.

Logan submitsthe Minister ignored the fact that the key evidence in support of the guilty plea in Canada was also located in the United States, and thatCanada had an equal or greater interest in prosecuting Mr. Logan. [47] According to Mr. Logan, the Minister stated he had been advised that “counsel for the PPSC, the competentauthority to conduct a prosecution in this matter, reviewed the case … [and] concluded that prosecuting Mr. Logan in Canada for theconduct underlying the American charges of conspiracy to launder monetary instruments and laundering of monetary instruments is not arealistic option”. Mr.

Logan says it is not known why the Canadian prosecutors took this position as the Minister failed to seek anysupport for this “bald and conclusory opinion”, nor was any notice or opportunity to challenge the assertion provided to counsel for Mr.Logan. Mr. Logan purports this is an irrational position having regard to the fact that he was prosecuted in Canada for the smugglingoffences, which were only criminalized by virtue of his conduct outside of Canada.

[48] Counsel for the Attorney General contends the Minister reasonably found that Mr. Logan’s surrender wouldnot unjustifiably violate his constitutional right to remain in Canada under s. 6(1) of the Charter. In United States of America v. Cotroni, (SCC), [1989] 1 S.C.R. 1469, [1989] S.C.J. No. 56 (QL), the Supreme Court held that the extradition of a Canadiancitizen is a prima facie infringement of his or her right to remain in Canada, as guaranteed by s. 6(1) of the Charter.

However, pursuantto s. 1 of the Charter, extradition may be a reasonable limit on that right when considering “the importance of the objectives sought byextradition – the investigation, prosecution, repression and punishment of both national and transnational crimes for the protection of thepublic” (Cotroni, para. 39). [49] Therefore, Canadian prosecuting authorities must give “due weight” to a Canadian citizen’s right to remain inCanada by conducting a good-faith analysis of whether prosecution in Canada would be “equally effective” to prosecution in therequesting state based on the factors set out by the Supreme Court in Cotroni: • 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; • whether the evidence is mobile; • the number of accused involved and whether they can be gathered together in one place for trial; • in what jurisdiction were most of the acts in furtherance of the crime committed; • the nationality and residence of the accused; • the severity of the sentence the accused is likely to receive in each jurisdiction. [para. 56] [50] The PPSC examined the Cotroni factors with respect to Mr.

Logan, and concluded that his prosecutionrespecting the money laundering in Canada was not a realistic option. Although the PPSC had the principal discretion to determinewhether to prosecute Mr. Logan in Canada, the Minister was required to ensure that the decision to favour extradition over domesticprosecution did not unjustifiably violate his rights under s. 6(1) of the Charter. In order for the Minister to be satisfied that Mr. Logan’ssurrender was consistent with the dictates of the Charter, he had to undertake an independent consideration of the factors set out by theSupreme Court in Cotroni.

In his decision, the Minister correctly identified the test that he should apply to the factual circumstancespursuant to Cotroni, and considered these facts in a reasonable manner in conducting this assessment. The Minister had to decide not onlywhether prosecution in Canada was a possible, realistic, or equally effective option, but whether it was a desirable option having regardto Canada’s international obligations. In so doing, the Minister had to weigh a number of factors, only one of which was whetherprosecution in Canada was a realistic option.

The Minister’s exercise of discretion on these matters attracts a high degree of deference. InSriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609, the Supreme Court states: Second, as the Minister pointed out, the ability to prosecute in Canada is but one of many factors to be considered in deciding whether toextradite a person for prosecution in another country.

Procedural fairness does not require the Minister to obtain and disclose everydocument that may be indirectly connected to the process that ultimately led him to decide to extradite. [para. 28] [51] Counsel for the Attorney General states the Minister’s decision was reasonable. He carefully applied theCotroni factors to Mr. Logan’s case, and determined that the United States has the overriding interest in prosecuting Mr. Logan on themoney laundering offences for which he is sought.

In coming to this conclusion, the Minister emphasized the following: • The cross-border nature of the money laundering offences; • The United States has the more comprehensive case in relation to those crimes; • All the payments for the smuggled narwhal tusks were made by purchasers who are located in the United States; • The primary evidence against him was gathered in the United States by U.S. investigators; and

• The U.S. banking records showing the payments made by the U.S. purchasers are in the possession of the U.S. authorities. [ 52 ] The Minister highlighted the cooperating co-defendants are in the United States, and that two of Mr. Logan’s co-accused have already been tried in the United States. The Minister further noted that Mr.

Logan has never been charged in Canada with any money laundering offences and no charges are contemplated as a result of the PPSC’s decision that a Canadian prosecution is not a viable option. [ 53 ] In my view, the Minister properly identified the applicable test, and he weighed the various factors relevant to the application of that test in the circumstances of this case. As such, his decision is entitled to a high degree of deference. [ 54 ] With respect to Mr.

Logan’s contention that the Minister ought to have obtained reasons for the PPSC’s opinion that a Canadian prosecution on the money laundering charges is not a realistic option (as he contends the PPSC’s position was irrational), this argument has been rejected by the Supreme Court in past cases. In Sriskandarajah , the Supreme Court confirmed its decision in United States v.

Kwok , 2001 SCC 18 , [2001] 1 S.C.R. 532, that the Minister’s duty of procedural fairness does not require that he obtain and disclose the Cotroni assessment conducted by the Canadian prosecuting authorities on whether to prosecute the person sought for extradition in Canada. The Court noted that “prosecutorial authorities are not bound to provide reasons for their decisions, absent evidence of bad faith or improper motives” (para. 27) on the clearest of cases standard.

The Court also noted that “the ability to prosecute in Canada is but one of many factors to be considered [by the Minister] in deciding whether to extradite a person for prosecution in another country” (para. 28). [ 55 ] As a result, the Minister has fully complied with the duty of procedural fairness applicable at the surrender stage of the extradition process and I would not give effect to this ground of appeal. G. Did the Minister properly find that United States sentencing laws neither violate specialty protection nor s. 7 of the Charter? [ 56 ] Mr.

Logan maintains that the Minister erred in failing to seek assurances from the United States with respect to penalty to ensure that there would be no violation of the principle of specialty or s. 7 of the Charter . According to Mr. Logan, these assurances should have been forthcoming, particularly in light of his conclusion that double jeopardy attached to the smuggling offences for which the United States sought to prosecute him. Instead, the Minister affirmed that limiting the surrender to the money laundering offences “answer[ed] any concern surrounding the protection against double jeopardy”.

He further held that the United States was entitled to take into consideration the aggravating and mitigating circumstances, but that did not constitute being punished for a separate offence. Mr. Logan disputes this, and says that although he would be sentenced for a separate offence, the consideration of “all relevant conduct” will result in punishment for conduct which forms the basis for offences for which he was already punished in Canada. As a result, in Mr.

Logan’s view, assurances to prevent the increase of sentence on account of this conduct are necessary. [ 57 ] The doctrine of specialty is incorporated in Article 12(1) of the Treaty . It provides that a person extradited “shall not be detained, tried or punished in the territory of the requesting state for an offence other than that for which extradition has been granted”. In addition to this, the Act has expressly included the law of specialty with respect to the Minister’s powers to seek assurances.

Section 40(3) provides that the Minister may seek assurances from the extradition partner that a sentence not be imposed on a person in respect of any offence or conduct other than that referred to in the order of surrender. As a result, Mr. Logan submits that irrespective of the terms of the surrender, or the convictions ultimately entered in the United States, he will be exposed to punishment on the entirety of the conduct involved, as reflected in the position of the United States prosecutor, and in the opinion of experienced United States counsel. Despite the fact that Mr.

Logan is not being surrendered to face prosecution on the smuggling offences, he will be subject to an increased sentence due to the conduct underlying those offences, as they would constitute “relevant conduct”. Therefore, Mr. Logan asserts this is in violation of the law of specialty and the terms of the Treaty and the Act . [ 58 ] In exceptional cases, the Supreme Court has recognized that differences between the jeopardy faced by the person sought in the foreign country, and that which he would face in Canada can impact upon the surrender decision.

Further, a Minister’s surrender decision will be contrary to s. 7 where an individual would face a situation that is “simply unacceptable” or would “sufficiently shock the conscience”. The Minister concluded Mr. Logan would likely face a lesser sentence as he will be surrendered on the money laundering charges only. However, the opinion Mr. Logan received from United States authorities was that he would face an estimated custodial sentence of between 10 and 12.5 years in the United States for the offences of a conspiracy to launder monetary instruments and laundering of monetary instruments.

The estimate provided by the prosecutor in United States, which was not limited to the money laundering offences, was between seven and 12.5 years’ incarceration. Mr. Logan advances that, having regard to the fact the custodial portion of his sentence in Canada was eight months, served conditionally, a custodial sentence in the United States between 10 and 12.5 years would shock the Canadian conscience. Therefore, Mr. Logan submits that extraditing him to face the American sentencing regime, in the absence of assurances, would be in violation of the principles of fundamental justice.

[59] Counsel for the Attorney General responds by stating that Mr. Logan did not request the Minister seek suchassurances. Furthermore, Mr. Logan had asserted to the Minister that there are no conditions or assurances that could render surrenderappropriate in this case. According to counsel for the Attorney General,

Article 12 of the Treaty does not apply to limit what aggravatingor mitigating factors a U.S. sentencing court may consider in determining an appropriate sentence. In Canada, evidence of circumstancesrelating directly to the commission of the offence may be considered on sentence as aggravating factors.

Article 12 operates to preventthe United States from prosecuting Mr. Logan on the smuggling charges, or any other offences not listed in the Minister’s surrenderorder, which predate Mr. Logan’s extradition. According to the Attorney General, there is no suggestion that the United States, which isbound by the Treaty, will seek to prosecute Mr. Logan on offences not covered by the Minister’s surrender order. With respect to therange of sentence Mr. Logan may face if convicted, the Supreme Court has held in a string of cases, that more severe sentences ofimprisonment in the U.S. as compared to Canada do not bar surrender under s. 7 of the Charter or s. 44(1)(

a) of the Act, unless thesentences involve extrajudicial forms of punishment that would shock the conscience (United States of America v. Jamieson, (QC CA), [1994] Q.J. No. 524 (C.A.) (QL), rev’d (SCC), [1996] 1 S.C.R. 465, [1996] S.C.J. No. 24(QL); Whitley; Ross v. United States of America, (BC CA), [1994] B.C.J. No. 2215 (C.A.) (QL), aff’d (SCC), [1996] 1 S.C.R. 469, [1996] S.C.J. No. 26 (QL); see also United States of America v. J.H.K., (ON CA),[2002] O.J. No. 2341 (C.A.) (QL), leave to appeal to SCC refused, [2002] S.C.C.A. No. 501; Gwynne v. Canada (Minister of Justice), (BC CA), [1998] B.C.J.

No. 222 (C.A.) (QL), leave to appeal to SCC refused, [1998] S.C.C.A. No. 95 (QL)). [60] These cases emphasize that the principles of comity and respect for state sovereignty, which are the foundationof the extradition process, mandate that deference be shown to a treaty partner’s criminal justice system, including their sentencingregime. As stated by the Supreme Court, in Argentina v. Mellino, (SCC), [1987] 1 S.C.R. 536, [1987] S.C.J. No. 25(QL), “[t]he assumption that the requesting state will give the fugitive a fair trial according to its law underlies the whole theory andpractice of extradition” (para. 32).

Moreover, individuals who choose to commit crimes abroad must generally accept the laws andpenalties applicable to persons in that country. Canada should seek to avoid being a safe haven for those seeking more lenient sentencesfor cross-border crimes (Mellino). [61] In coming to this decision, the Minister obtained information from the United States on their sentencing regimeand determined that it contains “significant protections for accused persons”. Mr.

Logan will have the right to challenge any informationsubmitted in support of sentence, to present any mitigating factors to the sentencing court, and to appeal any sentence on the grounds thatit is substantively or procedurally unreasonable. In my view, the Minister has provided sound reasons in determining that it would notshock the conscience of Canadians to surrender Mr. Logan, notwithstanding the potential for a lengthy U.S. sentence. I would not disturbthe Minister’s decision on this basis. V. Conclusion and Disposition [62] In

summary, the Minister's decision to surrender a Canadian citizen is owed a high level of deference. Once theCourt of Appeal determines the Minister considered the relevant facts and reached a "defensible conclusion" applying the correct legaltest as articulated in Lake, Burns and Kindler, it is not the Court of Appeal's role to reassess the relevant factors and substitute its ownview. I conclude the Minister's decision in this case falls within a "range of reasonable outcomes". The Minister carefully considered allof the submissions made by Mr.

Logan, and his reasons for surrender indicate that he weighed all of Mr. Logan’s submissions. TheMinister provided a clear explanation as to why they could not prevail. The reasons of the Minister clearly meet the sufficiency standardestablished by the jurisprudence. With respect to the issues raised by Mr. Logan, the Minister applied the correct legal tests andprinciples. Overall, the Minister exercised his discretion properly. He considered all of the information that was in the record before himand reasonably determined that Mr. Logan’s surrender was justified under the Act as well as the Charter.

It is for these reasons I woulddismiss Mr. Logan’s application for judicial review. I would direct that an order be issued that Mr. Logan surrender himself to theappropriate authorities within 3 days of the release of the Court’s decision, failing which a warrant will be issued for his arrest. ______________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR:

___________________________ J.C. MARC RICHARD, J.A. ___________________________ BARBARA L. BAIRD, J.A. Version française de la décision rendue par LA JUGE QUIGG I. Introduction [1] Il s’agit en l’espèce d’une demande déposée par Gregory Logan en vue de la révision judiciaire d’une décision du ministre de la Justice (le Ministre) ordonnant son extradition vers les États-Unis d’Amérique en vertu de la

Loi sur l’extradition , L.C. 1999, ch. 18 (« la Loi »). [2] La demande a été entendue en même temps que l’appel de l’ordonnance d’incarcération rendue par la Cour du Banc de la Reine. Les motifs pour lesquels nous rejetons cet appel sont rendus séparément, mais ils sont pertinents au même

titre que les présents motifs. [3] L’affaire concerne Gregory Logan qui a été accusé et déclaré coupable au Canada de certaines infractions et qui est maintenant accusé d’infractions aux États-Unis. Selon lui, ces accusations feront en sorte qu’il sera en fait condamné deux fois pour les mêmes événements. M. Logan prétend que le Ministre a commis de nombreuses erreurs dont l’une consiste à avoir conclu, dans l’exercice de son pouvoir discrétionnaire, que le principe de double péril s’appliquait à certaines des infractions, mais pas à d’autres.

Après avoir appliqué la norme de contrôle qui régit les demandes de cette nature, je suis d’avis que rien ne justifie la modification de la décision du Ministre. Pour les motifs exposés ci-dessous, je suis d’avis de rejeter la demande. II. Le contexte [4] M. Logan s’est lancé dans des activités commerciales transfrontalières illégales, savoir l’exportation et la vente de défenses de narvals du Canada à des acheteurs aux États-Unis. Des organismes canadiens et américains ont mené, en collaboration, une enquête conjointe sur ses activités.

Le 14 décembre 2011, une assignation a été décernée au Nouveau- Brunswick en vue de la comparution de M. Logan devant la Cour provinciale relativement à des accusations d’exportation illégale. Au Canada, M. Logan a fait l’objet d’environ vingt-deux chefs d’accusation d’exportation illégale de défenses de narvals vers les États-Unis en violation de la

Loi sur la protection d’espèces animales ou végétales sauvages et la réglementation de leur commerce international et interprovincial , L.C. 1992, ch. 52. Le 14 novembre 2012, un acte d’accusation lui imputant des infractions d’importation illégale et de blanchiment d’argent a été déposé contre M. Logan devant la Cour de district des États-Unis pour le district du Maine. Les États-Unis ont ensuite présenté une demande au Ministre en vue de son extradition. Dans les deux pays, les actes reprochés à M.

Logan sont qu’il s’est procuré des défenses de narvals au Canada, a négocié leur vente à des acheteurs américains, les a introduites en contrebande aux États- Unis depuis le Canada et a rapatrié le produit de la vente au Canada. En janvier 2013, pendant que les discussions en vue d’une entente sur le plaidoyer avaient lieu au Canada entre le Service des poursuites pénales du Canada (SPPC) et M.

Logan, ce dernier a appris l’existence des accusations portées contre lui aux États-Unis et son avocat a alors obtenu une copie de l’acte d’accusation déposé aux États-Unis. [5] Le 25 septembre 2013, Maître Cathy Chalifour, au nom du Ministre, a autorisé le Procureur général à solliciter une ordonnance prescrivant l’incarcération de M. Logan en vue de son extradition relativement à une accusation de possession de biens criminellement obtenus. M.

Logan dit qu’il ne savait pas qu’un arrêté introductif d’instance avait été établi par les autorités canadiennes et, le 1 er octobre 2013, il a plaidé coupable à sept chefs d’exportation illégale de défenses de narvals vers les États- Unis, infraction prévue au par. 6(2) de la

Loi sur la protection d’espèces animales ou végétales sauvages et la réglementation de leur

commerce international et interprovincial . Selon un exposé conjoint des faits, entre 2003 et 2009, M. Logan a illégalement exporté des défenses de narvals du Canada vers les États-Unis en les dissimulant dans sa remorque utilitaire et en leur faisant traverser la frontière à Calais, dans le Maine. M. Logan a exporté environ deux cent cinquante défenses de narvals aux États-Unis au cours de cette période de sept ans. Il a été condamné à un emprisonnement de huit mois avec sursis et à une amende de 385 000 $.

Au moment du prononcé de la sentence, le juge a dit que la peine, y compris [TRADUCTION] « l’amende substantielle », avait pour but de répondre à l’objectif de dissuasion, tant générale que particulière, énoncé à la

Loi sur la protection d’espèces animales ou végétales sauvages et la réglementation de leur commerce international et interprovincial . Lors de l’audience sur le plaidoyer et la détermination de la peine de M. Logan, il n’a été fait mention ni des accusations portées aux États-Unis ni de l’ al. 725(1)

c) du Code criminel du Canada qui autorise le juge à prendre en considération les faits liés à la perpétration de l’infraction sur lesquels pourrait être fondée une accusation distincte. [6] Comme je l’ai dit, les États-Unis ont sollicité l’extradition de M. Logan afin qu’il réponde aux accusations portées contre lui dans ce pays et, le 25 septembre 2013, un arrêté introductif d’instance a été signé en vertu de l’ art. 15 de la Loi , au nom du Ministre. L’arrêté introductif d’instance autorisait le Procureur général du Canada, au nom des États-Unis, à solliciter un mandat de dépôt contre M. Logan.

L’arrêté introductif d’instance mentionne l’infraction de possession de biens criminellement obtenus, infraction prévue à l’ art. 354 du Code criminel , comme étant celle qui correspond aux actes que les États-Unis reprochent à M. Logan . [7] Le 17 décembre 2013, le Procureur général du Canada a présenté une demande en vue d’obtenir un mandat d’arrestation aux fins d’extradition en vertu de l’ art. 16 de la Loi . L’arrêté introductif d’instance a été déposé à l’appui de la demande. M. Logan a été arrêté le 19 décembre 2013, conformément au mandat d’arrestation. Aux termes de l’

article 24 de la Loi , lorsqu’il y a dépôt de l’arrêté introductif d’instance, le juge d’extradition doit procéder à l’audition de la demande d’extradition. [8] M. Logan prétend que, lorsqu’il a plaidé coupable en octobre 2013, il était entendu que la poursuite engagée aux États-Unis serait abandonnée puisque les accusations auxquelles il plaidait coupable englobaient l’ensemble des actes reprochés dans les deux pays. Après avoir appris que la procédure d’extradition avait été autorisée, M.

Logan a déposé une demande en suspension de l’instance pour le motif que la procédure d’extradition constituait un abus de procédure. La demande a été entendue par le juge d’extradition et rejetée le 22 juillet 2014. Le juge a estimé que les prétentions concernant l’abus de procédure n’étaient pas pertinentes pour ce qui concernait l’audience sur l’incarcération et il n’a pas exercé le pouvoir discrétionnaire résiduel qu’il avait de suspendre l’instance; il a ordonné que le requérant soit incarcéré en vue de son extradition. M. Logan interjette appel de cette décision.

Comme nous l’avons vu, cet appel fait l’objet d’une décision distincte. [9] Dans ses mémoires au Ministre, M. Logan a de nouveau prétendu qu’il y avait eu abus de procédure de la part des fonctionnaires canadiens et il a sollicité une audience en vue d’obtenir le témoignage de vive voix de quatre personnes qu’il avait (en vain) essayé d’assigner à témoigner à l’audience d’extradition. Le 27 janvier 2015, le Ministre a rejeté les prétentions de M.

Logan et a ordonné son extradition vers les États-Unis afin qu’il y soit jugé relativement aux infractions de complot en vue de blanchir des instruments monétaires et de blanchiment d’instruments monétaires. Le Ministre a refusé d’ordonner l’extradition de M. Logan relativement à des accusations liées à la contrebande. M. Logan sollicite la révision judiciaire de cette décision en vertu de l’ art. 57 de la Loi . Il demande à notre Cour d’accueillir la demande et d’annuler l’arrêté d’extradition pris par le Ministre. III. Les moyens qui fondent la demande de révision judiciaire [10] M.

Logan a déposé devant notre Cour une demande de révision judiciaire dans laquelle il conteste la décision du Ministre de l’extrader. Il soulève sept moyens de révision : [TRADUCTION]

a) Le ministre de la Justice a commis une erreur dans l’exercice de son pouvoir discrétionnaire du fait qu’il a refusé de rejeter la demande en vue de l’extradition de M. Logan après avoir conclu que bien que le principe de double péril s’appliquât aux infractions de contrebande de défenses de narvals, il ne s’appliquait pas aux infractions de complot en vue de blanchir des instruments monétaires ou de blanchiment d’instruments monétaires;

b) Le ministre de la Justice a commis une erreur dans l’exercice de son pouvoir discrétionnaire du fait qu’il a refusé de rejeter la demande en vue de l’extradition de M. Logan sans prendre convenablement en considération le fait que l’extradition du requérant violerait l’art. 7 de la Charte par suite d’un abus de procédure;

c) Le ministre de la Justice a commis une erreur en concluant qu’il n’y avait aucune preuve d’abus en l’espèce;

d) Le ministre de la Justice a commis une erreur en refusant d’accorder la tenue d’une audience afin d’obtenir le témoignage de vive voix de quatre témoins dont le témoignage était pertinent aux fins de déterminer s’il y avait eu abus de procédure;

e) Le ministre de la Justice a commis une erreur dans l’exercice de son pouvoir discrétionnaire du fait qu’il a refusé de rejeter la demande en vue de l’extradition de M. Logan sans prendre en considération le fait que l’extradition du requérant violerait les principes de courtoisie internationale;

f) Le ministre de la Justice a commis une erreur dans l’exercice de son pouvoir discrétionnaire du fait qu’il a refusé de rejeter la demande en vue de l’extradition de M. Logan sans prendre convenablement en considération le fait que l’extradition du requérant violerait le par. 6(1) de la Charte ;

g) Le ministre de la Justice a commis une erreur dans l’exercice de son pouvoir discrétionnaire du fait qu’il a omis de demander aux États-Unis de lui donner des assurances concernant la peine afin de s’assurer qu’il n’y aurait pas violation du principe de spécialité ou des art. 7 et 12 de la Charte. IV. Analyse A. La compétence de la Cour et la norme de contrôle [11] Le paragraphe 57(1) de la Loi confère à la Cour d’appel la compétence exclusive pour connaître de la demande de révision judiciaire de la décision du Ministre d’extrader M. Logan vers les États-Unis. Cet

article dispose que les motifs pour lesquels la Cour peut prendre des mesures lors de la révision de la décision du Ministre sont les mêmes que ceux pour lesquels la Cour fédérale peut prendre des mesures en application du par. 18.1(4) de la

Loi sur les Cours fédérales , L.R.C. (1985), ch. F- 7. Ainsi, la Cour d’appel peut prendre les mesures prévues si elle est convaincue que le Ministre, selon le cas :

(

a) acted without jurisdiction, acted beyond [his or her] jurisdiction or refused to exercise [his or her] jurisdiction; (

b) failed to observe a principle of natural justice, procedural fairness or other procedure that [he or she] was required by law to observe; (

c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (

d) based [his or her] decision or order on an erroneous finding of fact that [he or she] made in a perverse or capricious manner or without regard for the material before [him or her]; (

e) acted, or failed to act, by reason of fraud or perjured evidence; or (

f) acted in any other way that was contrary to law.

a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer;

b) n’a pas observé un principe de justice naturelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de respecter;

c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;

d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;

e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages;

f) a agi de toute autre façon contraire à la loi. [12] Dans l’arrêt Dionne c. Canada (Ministre de la Justice) , 2008 NBCA 61 , [2008] A.N.-B. n o 414 (QL) , notre Cour a examiné la norme de contrôle applicable en ce qui concerne les arrêtés d’extradition : Dans Lake c. Canada (Ministre de la Justice) , [2008] A.C.S. n o 23 (QL) , 2008 CSC 23 , la Cour suprême a confirmé unanimement que la norme de contrôle d’un arrêté d’extradition est celle de la raisonnabilité.

De même, la Cour a réitéré plusieurs fois qu’une grande déférence s’impose envers la décision du Ministre de prendre un arrêté d’extradition une fois le fugitif incarcéré. Dans Lake , la Cour suprême a indiqué que la décision que doit rendre le Ministre sur une demande d’extradition l’oblige à soupeser de nombreuses considérations opposées et qu’il possède à l’égard de celles-ci une « plus grande expertise ».

En outre, la Cour a déclaré que, tant que le Ministre prend en compte les principes juridiques pertinents, sa décision d’extrader devait être maintenue à moins d’être déraisonnable au sens où elle serait « irrationnelle ». [par. 20] [13] Dans l’arrêt Lake c. Canada (Ministre de la Justice) , 2008 CSC 23 , [2008] 1 R.C.S. 761 , la Cour suprême a souligné que l’exercice du pouvoir discrétionnaire du Ministre suppose une pondération essentiellement dépendante de l’appréciation des faits en cause et que la cour de révision n’a pas le droit de substituer sa propre appréciation des faits pertinents.

Si le Ministre a tenu compte des faits pertinents et a tiré une conclusion raisonnable au regard de ces faits, sa décision doit être confirmée : Notre Cour a confirmé à maintes reprises que la déférence s’imposait à l’endroit de la décision du ministre de prendre ou non un arrêté d’extradition une fois le fugitif incarcéré. Elle doit aujourd’hui déterminer quelle norme de contrôle judiciaire s’applique à l’appr

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