2014 QCCA 1639, 2014 QCCA 1639

Unofficial English Translation Racine c. Canada (Ministre de la Justice) 2014 QCCA 1639 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005405-137 DATE: September 10, 2014 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. CLAUDE C. GAGNON, J.A. MARTIN VAUCLAIR, J.A. MARIO RACINE APPLICANT – Interested person v.

MINISTER OF JUSTICE OF CANADA RESPONDENT – Decision-maker JUDGMENT [ 1 ] THE COURT , on an application for judicial review of a ministerial order of surrender rendered on March 27, 2013; [ 2 ] FOR THE REASONS of Vauclair, J.A., with which Kasirer and Gagnon JJ.A. agree: [ 3 ] DISMISSES the application for judicial review. NICHOLAS KASIRER, J.A. CLAUDE C. GAGNON, J.A. MARTIN VAUCLAIR, J.A. Mtre Sonia Mastro Matteo LAROUCHE & ASSOC.

For the Applicant Mtre Claudine Dib DEPARTMENT OF JUSTICE CANADA For the respondent Date of hearing: February 11, 2014 REASONS OF VAUCLAIR, J.A. [ 4 ] On March 27, 2013, the Minister of Justice Canada ("the Minister") ordered the surrender of Mario Racine ("Racine") to the United States to answer to criminal charges for criminal conduct relating to conspiracy, possession, distribution of marijuana in the

United States, and money laundering. [ 5 ] Racine now seeks the judicial review of this decision under

section 57 of the Extradition Act ("the Act"), arguing its unreasonableness, errors on the part of the Minister, and a violation of his constitutional right to remain in the country. Implicitly, he argues that the reasons for the decision are insufficient. For the reasons that follow, I find that there is no merit to the arguments Racine raises and that his application for judicial review should be dismissed.

GENERAL BACKGROUND [ 6 ] It is possible to sketch a general outline of the facts without getting into all the details of the record of the case. [ 7 ] Along with a certain Jimmy Cournoyer ("Cournoyer"), Racine was the leader of a criminal organization that trafficked drugs by way of smugglers travelling from Canada to New York State in the United States.

The proceeds of the drug sales were then sent to the State of California to purchase cocaine that was in turn imported back into Canada. [ 8 ] On March 7, 2012, a New York State grand jury indicted Racine for his criminal activities between January of 2001 and June or October of 2011, which were detailed in several counts. The investigation into the criminal organization was led by American authorities.

The evidence contained, inter alia , contributions from five accomplices, now collaborating with the American authorities as witnesses, as well as findings from undercover officers in the United States. [ 9 ] This direct evidence revealed the criminal activities of the organization to which Racine belonged and, more particularly, the crimes he committed. In Canada, between 2005 and 2011, several collaborating witnesses received cannabis directly from Racine so that they could transport it to the United States. The amount of drugs was significant, with single deliveries weighing up to a hundred pounds.

The witnesses also described the significant profits resulting from the sale of the drugs. Others also witnessed the movement of large amounts of money in the United States and the money laundering activities in California of the proceeds from cannabis trafficking. Finally, American undercover officers were involved with the criminal organization in money laundering. [ 10 ] The record of the case also refers to a police operation in the city of Laval. On August 9, 2010, Quebec provincial police found a cannabis plantation linked to Racine.

On August 12, 2010, he was charged with cannabis trafficking and possession for the purpose of trafficking. This was case number 540-01-045781-104. [ 11 ] On October 5, 2012, Fraser Martin J. ordered the committal of Racine pending the decision of the Minister pursuant to the authority to proceed dated May 25, 2012. He identified the criminal conduct as follows: [ translation ] Conspiracy for the purpose of trafficking in a substance listed in

Schedule II, in contravention of

section 5 of the Controlled Drugs and Substances Act and

section 465 of the Criminal Code ; and Possession of property obtained by the commission of an offence punishable by indictment, in violation of

section 354 of the Criminal Code . [1] [ 12 ] This first stage of the extradition procedure has not been challenged. Racine's submissions to the Minister [ 13 ] On December 13, 2012, Racine chose to make submissions to the Minister, in accordance with

section 43 of the Act . [ 14 ] He raised three arguments: [ translation ] "A violation of fundamental justice" because of the tardy disclosure of the evidence at trial and because of the unreliability of the evidence supporting his extradition, as well as a violation of his right to remain in Canada.

His arguments may be summarized as follows: • His extradition breaches the principles of fundamental justice because of the tardy disclosure of the evidence of the identity and statements of the collaborating witnesses, recognizing that the [ translation ] "the bulk of the evidence against the interested person is constituted by testimony from collaborating witnesses". This [ translation ] "surprise effect" shocks the conscience and constitutes an unjust surrender under

section 44 of the Act . • His extradition violates his right to remain in Canada to stand trial. In his view, standing trial in Canada is a realistic option because he is a Canadian citizen, he resides in Montreal, the effects of the alleged offences are more likely to be felt in Canada, and there are currently several charges for indictable drug offences pending against him in Canada.

Therefore, the Crown is in possession of evidence that seems to confirm Canadian involvement in the production of cannabis and may effectively prosecute in Canada. [2] The Minister's response [ 15 ] On March 27, 2013, the Minister responded to Racine, stating that his concerns regarding the disclosure of the evidence were unfounded. The American authorities had informed him that the disclosure would take place a sufficient amount of time before the trial to enable him to prepare an effective cross-examination.

The Minister concluded that Racine would have the right to a fair trial in the United States. [ 16 ] The Minister then undertook an analysis of the circumstances surrounding the alleged violation of

section 6 of the Charter . He first noted that the Public Prosecution Service of Canada ("PPSC") had assessed both the record and the evidence received from the United States but had not authorized prosecution in Canada. He then considered the appropriateness of prosecuting these offences in Canada and found that it was not indicated in the circumstances. For several reasons, the Minister concluded that the proceedings should take place on American soil.

[ 17 ] In his analysis of the relevant factors, the Minister noted, inter alia , that: (1) the prejudicial effects were predominant in the United States; (2) the investigation was carried out by American authorities and, in particular, the collaborating witnesses are in the United States and their evidence is essential; (3) this being a joint criminal enterprise, it was preferable for all of the accused to stand trial together and this must take place in the United States; and (4) on the facts in the record of the case, there is no criminal prosecution in Canada and the PPSC does not plan to prosecute. [ 18 ] The Minister nevertheless decided to refuse to surrender Racine specifically with regard to the criminal conduct relating to the cocaine.

Then, noting that there were unrelated charges pending against him in Quebec, he ordered Racine’s surrender nevertheless, basing himself on

section 64 of the Act . ANALYSIS [ 19 ] Racine raises five arguments against the Minister's decision. Like Racine, I will deal with the first two together. I will address the arguments in order, outlining the positions of the parties for each one. Issues 1 and 2 [ 20 ] In his memorandum, Racine presents his first two reasons as follows: [ translation ] 1. The Minster erred in law in finding that he could order the surrender of the Applicant-Interested person under

section 64 of the Extradition Act , concluding that the charges pending against him in Canada [ translation ] "were not based on the same conduct in respect of which the request for extradition was made", which was erroneous according to the evidence adduced; 2. The Minister erred in law and improperly exercised his discretion not to surrender the Applicant-Interested person by failing to consider the RECORD OF THE CASE which clearly demonstrates a factual relationship between the case pending in Canada and the facts supporting the charges filed in the United States (paragraph 47(

d) of the Extradition Act). Positions of the Parties [ 21 ] Racine's allegation is that the Minister either did not consider or improperly considered the existence of the charges pending in Quebec. His decision states both that Racine is facing no charges in Canada and that he is awaiting trial on drug trafficking charges. Racine claims that the Minister's response is contradictory and that this incoherence renders the decision unreasonable, erroneous, and inconsistent with the evidence.

According to Racine, the offences are the same ones and the Minister should have refused his extradition so that the Canadian case could proceed. [ 22 ] The Minister responds that the Canadian charges concern only one specific incident and that the American charges are much broader and cover a longer period of time. Consequently, the Minister relied on

section 64 of the Act . Analysis [ 23 ] It is not disputed that in Canada, more specifically in Quebec, District of Laval, Racine faces two charges of having, on or about August 9, 2010, trafficked in a substance specified in

Schedule II (cannabis) and of having had cannabis in his possession for the purpose of trafficking. Racine faults the Minister for applying

section 64 of the Act when on the facts it was not open for him to do so, and for ordering his surrender without regard for paragraph 47(

d) of the Act . [ 24 ] Let us first consider the relevant provisions: 47. Le ministre peut refuser d’extrader s’il est convaincu que : …

d) l’intéressé fait l’objet d’une poursuite criminelle au Canada pour les actes à l’origine de la demande d’extradition; 47. The Minister may refuse to make a surrender order if the Minister is satisfied that … (

d) the conduct in respect of which the request for extradition is made is the subject of criminal proceedings in Canada against the person;

(1) L’arrêté d’extradition visant une personne par ailleurs accusée sous le régime d’une

loi canadienne d’avoir commis une infraction qui ne se fonde pas sur les mêmes actes que ceux à l’origine de la demande d’extradition ou qui purge une peine au Canada pour une telle infraction ne prend effet, sauf instruction contraire du ministre, qu’après l’acquittement de la personne, l’expiration de sa peine ou toute autre forme de libération.

(2) Il est entendu que le paragraphe (1) s’applique même quand l’accusation est postérieure à la prise de l’arrêté d’extradition. 64.

(1) Unless the Minister orders otherwise, a surrender order made in respect of a person accused of an offence within Canadian jurisdiction or who is serving a sentence in Canada after a conviction for an offence, other than an offence with respect to the conduct to which the order relates does not take effect until the person has been discharged, whether by acquittal, by expiry of the sentence or otherwise.

(2) For greater certainty, the person need not have been accused of the offence within Canadian jurisdiction before the surrender order was made. [ 25 ] The Minister’s obligations include giving due consideration to all factors relevant to the extradition issue and to give sufficient reasons for his decision to surrender. [3] The Minister must respond to any submissions against surrender and give his reasons if he disagrees.

This is his duty, which may be reviewed according to the standard of reasonableness; in other words, the Minister's decision must fall within a range of reasonable outcomes. [4] In my view, the Minister's decision meets these requirements. [ 26 ] While it is true that the Minister's decision did not provide a detailed review of the facts underlying the Canadian charges, it cannot be concluded, as Racine argues, that he failed to consider the situation.

In addition, the state of the record does not convince me that it contains the contradiction he perceives therein. [ 27 ] The Minister made the following observations: prosecution is possible in Canada, currently no charges based on the same facts have been laid, and the PPSC does not plan to bring any. He wrote: [ translation ] While there is no doubt that it would be possible to prosecute in Canada on the allegations in respect of which the request for extradition is made, there is at the moment no charge pending against Mr.

Racine in Canada and I accept the fact that the Canadian authorities responsible for the prosecution have in good faith deferred to the interest of the American authorities in prosecuting this case. [ 28 ] The Minister noted in conclusion that he has taken the pending charges into account: He wrote: [ translation ] I note that Mr. Racine is currently awaiting trial on charges of drug trafficking in the province of Quebec. Pursuant to

section 64 of the Act and in the circumstances of this case, I find that my order of surrender should take effect immediately, despite the fact that Mr. Racine is facing charges in Canada. [ 29 ] Therefore, the criticism concerns more the Minister's conclusion that the facts giving rise to the pending charges are for offences "other than an offence with respect to the conduct to which the order relates/ ne se fonde[nt] pas sur les mêmes actes que ceux à l'origine de la demande d'extradition ", to quote

section 64 of the Act . [ 30 ] It is difficult to respond fully to a criticism that was not fully presented or developed. Racine limits himself to excerpts from documentary evidence that may suggest a connection between the Canadian and American actions. But the certified record of the case goes on to outline criminal activity on American soil that has no counterpart on Canadian soil and therefore indicates that the criminal conduct in Canada was very different, specific and limited in scope.

The Minister's conclusion is therefore within the range of reasonable outcomes. [ 31 ] Ultimately, Racine sees the actions alleged against him in Canada as part of a continuum with the American criminal enterprise. This argument has a certain weight, since at first glance there is a connection between the charges in Quebec and the crimes alleged in the United States. Racine, however, raises nothing more than this connection.

This is a fundamental characteristic of cross-border criminal activity such as drug trafficking, which generally takes place in both countries, as illustrated in Cotroni . [5] Certainly, the surrender cannot, as Racine suggests, be refused for this reason alone. Rather, the circumstances require an assessment of the Cotroni factors. [ 32 ] Therefore, even supposing for the purposes of the appeal that Racine is correct in saying that the alleged conduct in Canada was not that contemplated in

section 64 of the Act , the Minister's decision in this respect seems quite incidental in the circumstances. As we shall see, the Minister nevertheless considered the appropriateness of prosecuting in Canada, acknowledged that it was possible, but still decided in favour of extradition. I do not believe that the Minister incorrectly understood the record when he made that decision or that he failed in his duty.

[ 33 ] Contrary to Racine's argument,

section 47 is not restrictive. It allows the Minister to refuse surrender for a reason appearing in the record, including the existence of criminal proceedings in Canada for conduct in respect of which the request for extradition is made.

The provision creates no obligation and no prohibition. [6] Moreover, it should be noted that there is nothing inherently wrong with laying charges in Canada in good faith while awaiting the Minister's decision on surrender or, for that matter, with withdrawing them in favour of extradition. [7] In the circumstances, I cannot see how the current situation creates an obstacle barring extradition. Issue 3 [ 34 ] In his memorandum, Racine writes: [ translation ] 3.

The Minister erred in law in applying his discretion and in respect of the constitutional right of the Applicant-Interested person [ translation ] "to remain in Canada and stand trial in his country" by failing to consider all of the factors set out in Cotroni , Kwok , Lake and Sriskandarajah . Positions of the Parties [ 35 ] Essentially, Racine argues that the Minister's analysis of the Cotroni factors in connection with subsection 6(1) of the Charter is

summary and incomplete. He failed to take into account the arguments that weigh in his favour. Racine claims that the Minister obscured the fact that the proceeds of the American enterprise were to be used to import cocaine into Canada and that consequently, the effects of the offence are more likely to be felt in Canada. In short, he adds, [ translation ] "Canada has more interest in having the Applicant- Interested person respond to all of the charges in its own territory, given the proceedings already undertaken in Quebec".

Racine points out the involvement of the Canadian police and the evidence gathered here. He admits that some of the evidence was collected in the United States but insists that the entire case should proceed in Canada [ translation ] "so that, if appropriate, the Applicant-Interested person will be sentenced for his entire criminal involvement, rather than splitting the case between two territories".

Finally, Racine notes that he is a Canadian citizen and that his involvement in the alleged crimes took place essentially in Canadian territory. [ 36 ] The Minister states that he directed himself properly in fact and in law. He adequately considered the appropriateness of prosecuting in Canada. He notes his discretion in extradition matters. He answers that he correctly applied the Cotroni factors, the relative importance of each varying according to the circumstances. The possibility of prosecuting on Canadian soil is therefore merely one consideration among others.

After noting that there is no prosecution in Canada, he weighed the various factors. In his memorandum, he reported the following: [ translation ] 46. In this case, (

i) because the marijuana entered the United States to be distributed there, the individuals who consumed it and suffered the negative effects thereof were probably American residents; (ii) the proceeds of the illegal sale of marijuana were obtained from American residents, most likely in American currency; (iii) the investigation was launched and carried out by the United States; (iv) several of the applicant's co-accused are already facing prosecution in the United States; (

v) several collaborating witnesses are available to testify in the United States, and their testimony is crucial to successful prosecution; (vi) no charges have been brought in Canada against the defendant with regard to the conduct described in the record of the case. Analysis [ 37 ] Subsection 6(1) of the Charter guarantees every Canadian citizen "the right to enter, remain in and leave Canada".

Extradition is a restriction of this right, but one that is justified. [8] The Minister must weigh many factors before allowing extradition to ensure that the surrender complies with the constitutional rights of the interested person. In Cotroni , the Supreme Court set out these factors before they were condensed and integrated into the Treaty between the two countries. [9] [ 38 ] They are reiterated in Sriskandarajah : (

i) Where was the impact of the offence felt or likely to have been felt? (ii) Which jurisdiction has the greater interest in prosecuting the offence? (iii) Which police force played the major role in the development of the case? (iv) Which jurisdiction has laid charges? (

v) Which jurisdiction has the most comprehensive case? (vi) Which jurisdiction is ready to proceed to trial? (vii) Where is the evidence located? (viii) Is the evidence mobile? (ix) How many accused are involved and can they be gathered together in one place for trial? (

x) In what jurisdiction were most of the acts in furtherance of the crime committed? (xi)What is the nationality and residence of the accused? (xii) What is the severity of the sentence that the accused is likely to receive in each jurisdiction? [10] The relevance of the Cotroni factors varies from one case to another, and the weighing of these factors falls to the Minister, who has both the expertise and the duty to ensure that Canada meets its international obligations. [11] I believe that the Minister, as was his duty, gave sufficient reasons for his decision in the circumstances. [ 39 ] Racine insists that prosecution in Canada is possible.

Without question, the Minister must assess whether prosecution in Canada is a realistic option. Contrary to what Racine suggests, however, the realistic possibility of prosecution on Canadian soil is merely one consideration among others, and it is not determinative. [12] [ 40 ] A reading of the decision clearly shows that the Minister did not ignore the fact that the organization was based in Montreal, that the meetings between Racine and the American accomplices (now collaborating witnesses) took place on Canadian soil, that Racine is a Canadian citizen, and that he is facing criminal proceedings in Canada.

The Minister sought counsel from the Public Prosecution Service of Canada, which did not recommend prosecution in Canada. Not only was it open for him to do so, but he was free to rely on "an evaluation presented to him or her by responsible Department officials". [13] That said, he did not assign determinative weight to that

opinion and went on to carry out his own evaluation, referring to the submissions listed above in paragraph [36]. Indeed, all the circumstances of this case are similar to those considered by the Supreme Court in Sriskandarajah . [14] [ 41 ] Racine is in fact attempting to persuade the Court to substitute its own opinion for that of the Minister, which is not its role.

I repeat, the Court "must determine whether the Minister’s decision falls within a range of reasonable outcomes" after an analysis according to the appropriate legal standard. [15] The standard of judicial review of the Minister's decision in extradition matters is that of reasonableness. [16] The Minister's exercise of his jurisdiction in deciding whether to order the surrender attracts significant deference and "[c]ourts should interfere with the Minister’s discretion only in the 'clearest of cases'". [17] [ 42 ] Racine does not persuade me that this is one of the clearest of cases. On the contrary.

The only thing that Racine's argument shows — and does so eloquently –– is that there are two aspects to this criminal activity. Obviously, his reading of the situation leads him to conclude that prosecution in Canada would be preferable. The Minister, however, ordered his surrender, and it was his choice to make. The record of the case as presented tends to confirm that the Minister's decision was the right one and, a fortiori , that it was reasonable. Racine has demonstrated no error or omission on the part of the Minister. Issue 4 [ 43 ] Racine presents his fourth ground as follows: [ translation ] 4.

The Minister has erred by failing to ask the American authorities to provide the assurances that the applicant will be prosecuted only in connection with the offences for which the surrender is ordered, given the decision not to order his surrender for the charges relating to the possession and distribution of cocaine (section 40 of the Extradition Act ). Positions of the Parties [ 44 ] The criticism brought against the Minister is that he failed to seek assurances from the American partner that it was not planning to have him stand trial for the offences relating to the possession and distribution of cocaine.

Without such assurances, the immediate order of Racine's surrender is an unjust and oppressive decision. [ 45 ] The Minister argues that he has no obligation to seek the assurances referred to here. Moreover, the principle whereby the requesting State may prosecute the accused only for the charges referred to in the order of surrender is expressly set out in the Extradition Treaty Between Canada and the United States of America. Analysis [ 46 ] It should be pointed out that Racine did not raise this issue before the Minister, such that the appropriateness of considering it in review may be questioned.

Since the respondent has replied and the criticism is clearly unfounded, I will take only the time needed to make two remarks. [ 47 ] While it is true that subsection 40(3) of the Ac t authorizes the Minister to seek such assurances, he was not obliged to do so in the present case. The rule of specialization prohibits the requesting State from prosecuting the interested person for offences other than those for which the extradition is sought.

Article 12 of the Treaty between Canada and the United States provides for this specifically, which is in itself an assurance. [18] Second, the offences on the order of surrender clearly refer to marijuana and not cocaine. For these reasons, the assurances requested by Racine are clearly pointless. [19] Issue 5 [ 48 ] Here is the fifth and final allegation in the memorandum: [ translation ] 5.

The Minister rendered a decision based on an erroneous finding of fact in concluding that the Applicant-Interested person would have the benefit of a full answer and defence despite the assertion of the American authorities that the statements of the collaborating witnesses at the heart of the evidence against the Applicant-Interested person would be sent only "shortly before trial" (ROC). Positions of the Parties [ 49 ] Racine states that the Minister should not have been satisfied with the general answers received from the American authorities.

In addition, the Minister restricted his analysis to the mere possibility of cross-examining the collaborating witnesses, whereas disclosure of the evidence must allow the accused to understand the case, do research, develop a strategy, or decide whether to challenge the charges against him. In the view of Racine, extraditing an accused while depriving him of this disclosure shocks the conscience of Canadians and constitutes an unjust and oppressive surrender. [ 50 ] In the view of the Minister, Canadian constitutional rights do not have extraterritorial effect.

The principles of comity and sovereignty do not permit intrusion into the legal system of the requesting State. In this case, the Minister obtained guarantees from the American authorities that the disclosure of the evidence would allow the defence to make effective use of it. Analysis [ 51 ] In the record of the case, it is stated that the names of the collaborating witnesses will be disclosed only shortly before the trial for safety reasons. Consequently, it can be assumed that their statements will be disclosed at the same time.

[ 52 ] The Minster was assured by the Office of International Affairs, United States Department of Justice that the defendant in a criminal trial is guaranteed the opportunity to cross-examine witnesses. Today, Racine criticizes the Minister for being too restrictive in his response by considering the impact of the disclosure on the cross-examination only. This criticism is unfounded. It should be recalled that the response is not dissociated from its context or, more particularly, from Racine's complaints in his submissions to the Minister.

While it is true that he invokes his general right to make full answer and defence, he refers in this respect only to ensuring an effective cross-examination of the collaborating witnesses. [ 53 ] The disclosure of evidence pursues broader objectives than the mere possibility of cross-examining witnesses, however.

The real issue here is the identity of the collaborating witnesses that are being kept secret for safety reasons. [ 54 ] It is trite law that a perfect concordance between the rights guaranteed in Canada and those in the requesting State should not be sought. [20] It is up to the Minister to weigh these realities and determine whether the extradition would shock the conscience or whether the situation is unacceptable. This decision attracts deference. [21] In Schmidt , the Supreme Court wrote: 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 be extremely circumspect so as to avoid interfering unduly in decisions that involve the good faith and honour of this country in its relations with other states.

In a word, judicial intervention must be limited to cases of real substance. [22] [ 55 ] It should be noted that the Minister obtained assurances that all of the information would be disclosed, including the testimonies and prior statements of the witnesses, the details of their criminal records and other crimes, any other evidence affecting their credibility, partiality or reliability, and any other exculpatory evidence. This information will be disclosed at different times, but in any event sufficiently in advance for the defence to be able to put it to " effective use " (emphasis added).

Having considered the above, the Minister concluded that the surrender would be neither unjust nor oppressive. Racine has not demonstrated that this decision was unreasonable [ 56 ] I would therefore dismiss the application for judicial review. MARTIN VAUCLAIR, J.A.