2011 QCCA 2378, 2011 QCCA 2378

Unofficial English Translation Plata c. Canada (Ministre de la Justice) 2011 QCCA 2378 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004806-103 DATE: December 20, 2011 CORAM: THE HONOURABLE MARC BEAUREGARD, J.A. ANDRÉ ROCHON, J.A. ALLAN R. HILTON, J.A. ANTHONY PLATA APPLICANT – Interested person v.

MINISTER OF JUSTICE OF CANADA RESPONDENT – Decision maker JUDGMENT [ 1 ] The Court, on the applicant's motion to quash the order of surrender of the applicant to the United States of America to stand charges for various offences, made on October 27, 2010, by the Minister of Justice of Canada pursuant to s. 40(1) of the Extradition Act , S.C. 1999, c. 18; [ 2 ] For the reasons of Beauregard J.A., with which Rochon and Hilton JJ.A. agree: [ 3 ] ALLOWS the application for judicial review in part and REFERS the matter back to the Minister for reconsideration in light of paragraphs [39], [40], and [41] of the attached reasons for judgment.

MARC BEAUREGARD, J.A. ANDRÉ ROCHON, J.A. ALLAN R. HILTON, J.A. Mtre Dylan Jones and Mtre Jonathan Gordon (BORO POLNICKY LIGHTER) For the Applicant Mtre Christian Jarry (DEPARTMENT OF JUSTICE CANADA) For the respondent Date of hearing: October 6, 2011

REASONS OF BEAUREGARD, J.A. [ 4 ] Anthony Plata, relying on s. 49 of the Extradition Act, S.C. 1999, c. 18 (the "Act"), appeals from a judgment of the Superior Court (the Honourable Mr.

Justice Michel Delorme) rendered on February 24, 2010, which ordered his committal for extradition. [ 5 ] Relying on s. 57(1) of the Act , the applicant also asks the Court to cancel an order for his extradition to the United States to face charges for various offences, made on October 27, 2010, pursuant to s. 40(1) of the Act, in view of the judgment of Delorme J. - 0 - [ 6 ] On April 15, 2008, Plata was caught red-handed and arrested in the forest in Quebec, not far from the Canada-U.S. border (Sainte-Agnès-de-Dundee), as he was returning from a trip exporting 264 kg of marijuana from Canada to the United States. [ 7 ] The following day, on April 16, 2008, the following charges were filed against Plata in Quebec: 1.

Between April 1, 2008, and April 15, 2008, conspiracy to possess marijuana for the purpose of trafficking and to export marijuana; 2. On April 15, 2008, possession of marijuana for the purpose of trafficking; and 3. On April 15, 2008, exporting marijuana. [ 8 ] On June 8, 2009, pursuant to an agreement with the prosecution, Plata confessed to having committed the offence of conspiracy, and a stay of proceedings was ordered with regard to the offences of possession of marijuana for the purpose of trafficking and exporting marijuana.

Plata was sentenced to three years in prison. [ 9 ] Two days later, on June 10, 2009, the American authorities charged Plata with various offences and issued an arrest warrant, which was provided to the police officers in charge of the legal proceedings against him in Canada. [ 10 ] On August 19, 2009, an American grand jury indicted Plata on the following charges: Count 1 Conspiracy (between July of 2007 and June of 2009) to possess a narcotic for the purpose of trafficking and to traffic in a narcotic; Count 2 Conspiracy (between July of 2007 and June of 2009) to launder money; Count 4 Conspiracy (between July of 2007 and June of 2009) to import a narcotic; Count 6 Possession (on April 15, 2008) of a narcotic for the purpose of trafficking. [ 11 ] I note that the conspiracies alleged by the American authorities extend over a much longer period than the conspiracy perpetrated between April 1, 2008, and April 15, 2008, to which Plata pleaded guilty. [ 12 ] On September 2, 2009, the American authorities asked the Minister of Justice to extradite Plata. [ 13 ] On October 5, 2009, pursuant to s. 15(1) of the Act , the Minister issued an authority to proceed and authorized the Attorney General to petition the Superior Court, on behalf of the United States, for an order of committal pursuant to s. 29(1) (

a) of the Act. [ 14 ] Under s. 15(3)(

c) of the Act , the Minister identified as follows the offences which, in his view, correspond to all of the acts alleged against Plata under Canadian law, one of which carries a sanction in Canada under s. 3(11) (

b) of the Act: 1. Laundering Proceeds of crime, contrary to

section 462.31 of the Criminal Code ; 2. Trafficking in a

Schedule II controlled substance, contrary to

section 5 of the Controlled Drugs and Substances Act . [ 15 ] On October 7, 2009, Plata was brought to appear before a judge of the Superior Court. [ 16 ] On December 14, 2009, the Minister substituted the first offence named with the following: Possession of property obtained by crime contrary to

section 354 of the Criminal Code . [ 17 ] On January 14, 2010, once Plata had become eligible for parole from the imprisonment prison sentence resulting from the judgment rendered on June 8, 2009, that had convicted him for his actions in Quebec on April 15, 2008, a Superior Court judge refused to grant him interim release during his extradition proceedings. - 0 -

[18] On February 24, 2010, after receiving and considering the evidence, and after hearing the submissions of counsel for theparties, Delorme J. ordered that Plata be committed to custody to await his extradition. [19] On March 22, 2010, Plata appealed that judgment.

In his notice of appeal, he alleged: The Extradition Judge erred in law by concluding that there was evidence that your appellant possessed property obtained by crime; Your appellant reserves the right to raise such other grounds as may appear in the Court record. [20] The first ground is clearly without merit; see paragraphs [18] to [25] of this judgment, inclusively.

And indeed, Plata does notrepeat this argument in his factum, raising instead two others, which he outlines as follows: It is respectfully submitted that the Honourable Extradition Judge erred in law by ordering the committal of the appellant considering:(1) the important delays in requesting extradition, and (2) the fact that the American and Canadian authorities did not consult each otherto ensure that the appellant did not endure multiple trials in both jurisdictions. [21] The respondent states that these arguments were not submitted before the Superior Court and that in any event they did not fallunder that court's jurisdiction. [22] I accept the respondent's submission that a Superior Court judge would have lacked the jurisdiction to rule on these argumentsif they had been presented.

The judgment in United States of America v. Cobb, 2001 SCC 19 , [2001] 1 S.C.R. 587, does notsupport the appellant's claim: The alleged breach does not pertain "directly to the circumscribed issues relevant at the committal stage ofthe extradition process". In any event, the argument is unfounded.

I will provide my reasons for this conclusion later on whenconsidering the application for review, which also raises this argument against the Minister. - 0 - [23] On April 23, 2010, two months after the February 24, 2010, decision of Delorme J., counsel for Plata asked the Minister not toextradite his client, raising the following grounds: 1. Plata's culpable conduct took place in Canada; 2. Plata was judged and punished for the misconduct with which the United States wished to charge him; 3. The U.S. was late in requesting Plata's extradition, and this tardiness had caused him prejudice; 4.

The way in which the American and Canadian authorities acted violated his client's rights under s. 6 of the CanadianCharter of Rights and Freedoms; 5. The offences described by the Minister in his authorization to the Attorney General and in the judgment of Delorme J.ordering his imprisonment have nothing in common with the conspiracies alleged by the Americans. [24] On October 27, 2010, the Minister rejected most of the arguments presented by counsel for Plata and ordered Plata's extraditionon the condition that the American authorities give an assurance: That Mr.

Plata will not be prosecuted for any conduct which occurred between April1, 2008 and April15, 2008, in relation to theprosecution of the conspiracy to possess with intent to distribute and the conspiracy to import charges listed above. [25] For the purposes of this paragraph and those that follow, I recall the offences for which the American authorities wished toprosecute Plata: Count 1 Conspiracy (between July of 2007 and June of 2009) to possess a narcotic for the purpose of trafficking and to traffic in anarcotic; Count 2 Conspiracy (between July of 2007 and June of 2009) to launder money; Count 4 Conspiracy (between July of 2007 and June of 2009) to import a narcotic; Count 6 Possession (on April 15, 2008) of a narcotic for the purpose of trafficking. [26] It should be noted that the condition applies only with respect to the conspiracy to possess a narcotic for the purpose oftrafficking and to traffic in a narcotic, and with respect to the conspiracy to import a narcotic.

The condition does not apply with respect tothe conspiracy to launder money or the charge of, on April 15, 2008, possessing a narcotic for the purpose of trafficking. [27] That same day, the Minister wrote to counsel for Plata to explain the reasons he had not accepted his arguments with theexception of those concerning the condition I have just mentioned. He answered each of the arguments put forward by the appellant inthe following manner: 1.

The offences alleged by the American authorities were committed in Canada only [28] Concerning the argument that Plata's culpable conduct took place in Canada and not the United States, the Minister noted thatthe American authorities claimed that they were able to prove what was alleged in the four counts noted above, even if Plata never leftCanada betwen April 1, 2008, and April 15, 2008. [29] Plata has not shown that this conclusion is unreasonable. Moreover, he did not repeat this submission in his appeal factum.

2. Autrefois convict [ 30 ] We should recall that, on April 15, 2008, Plata was caught red-handed and arrested in Quebec as he was returning from exporting 264 kg of marijuana from Canada to the U.S. [ 31 ] We should recall that the next day, Plata was charged in Quebec with conspiracy to possess marijuana for the purpose of trafficking and to export marijuana.

He was also charged in Quebec with possession of marijuana for the purpose of trafficking and with exporting marijuana. [ 32 ] Further to an agreement between the prosecution and Plata, the applicant pleaded guilty to the charge of conspiracy, and a stay of proceedings was ordered on the other two charges. [ 33 ] Subsequently, Plata was charged in the U.S. with three conspiracies that allegedly took place between July 2007 and June 2009, and with possession of a narcotic for the purpose of trafficking on April 15, 2008. [ 34 ] The three conspiracies alleged by the American authorities (once again, perpetrated between July 2007 and June 2009) include the period between April 1, 2008, and April 15, 2008. [ 35 ] Plata submitted to the Minister that, since the three conspiracies alleged by the American authorities include the conspiracy of which he has been convicted in Quebec, the Quebec judgment constitutes res judicata .

Therefore, he argues, he cannot be convicted in the United States since that would violate the rule of autrefois convict. [ 36 ] The Minister accepted Plata's argument in part, and that is why he sought assurances from the American authorities that they would adduce no evidence concerning Plata's actions between April 1, 2008, and April 15, 2008, in seeking his conviction for conspiracy to possess a narcotic for the purpose of trafficking and to traffic in a narcotic, and for conspiracy to import a narcotic (counts 1 and 4). [ 37 ] Since the American authorities intend to prove and claim that they are able to prove that, regardless of what happened between April 1, 2008, and April 15, 2008, that Plata conspired to possess a narcotic for the purpose of trafficking, to traffic in a narcotic, and to import this substance, Plata has not shown that the Minister's decision is unreasonable. [ 38 ] Plata's argument that he should not be extradited because the American authorities have not alleged one or more specific conspiracies but a general conspiracy that includes the period between April 1, 2008, and April 15, 2008, is not convincing.

We cannot see why, if Plata actually did conspire as early as July of 2007, he should not be punished for this fact because he has been punished for a conspiracy between April 1, 2008 and April 15, 2008.

Obviously, the situation would be different if Plata had been convicted in Canada of the general conspiracy and if extradition had been sought for the conspiracy between April 1, 2008, and April 15, 2008. [ 39 ] But I must wonder why the Minister did not impose his condition also with respect to counts 2 and 6, and particularly with respect to count 6. [ 40 ] As a result of the agreement between Plata and Quebec, a stay of proceedings was ordered on the charge of possession (on April 15, 2008) of marijuana for the purpose of trafficking.

It would be unfair for the American authorities to charge him with such an offence. [ 41 ] Moreover, when Plata and the Canadian authorities agreed that Plata would plead guilty to conspiracy to possess marijuana for the purpose of trafficking and exporting, the Canadian authorities could very well have charged Plata with laundering money. It is implicit that the decision not to bring this charge was part of the agreement. Consequently, once again, it would be unfair for the American authorities to charge him with such an offence. 3.

Unfair and oppressive actions [ 42 ] Plata submits that the Minister had jurisdiction to refuse extradition if he found that the extradition would be unfair and oppressive, and that the Minister acted unreasonably by concluding that it would not. [ 43 ] This conduct was unfair and oppressive because of the time elapsed before the American authorities charged him and sought his extradition, because the American and Canadian authorities did not work together to ensure that Plata was charged in only one of the countries and not in both, and because Plata should have been prosecuted in Canada alone.

TIME PERIODS [ 44 ] Plata was arrested in Quebec on April 15, 2008, and was charged the next day. [ 45 ] On June 8, 2009, he formally pleaded guilty and the judge sentenced him to three years in prison. [ 46 ] Even though they were aware of all of the facts, the American authorities waited until June 10, 2009, two days after his conviction in Quebec, to file charges against him. [ 47 ] Plata submits that this thirteen-month delay caused him prejudice. [ 48 ] In actual fact, Plata does not complain so much about the length of the time but the fact that, if he had known on June 8, 2009, that he was going to be charged two days later in the U.S., he never would have pleaded guilty. [ 49 ] Plata adds that the American authorities waited to see what would come of the Canadian proceedings before filing charges against him.

He argues that this was inappropriate and demonstrates bad faith on the part of the American authorities. [ 50 ] Plata also adds that he suffered additional prejudice because the American authorities did not seek Plata's extradition until September 2, 2009, and the Minister did not issue the authority to proceed until October 5, 2009. This resulted in his being incarcerated

for more than four months. [51] Plata cannot rely on s. 11(

b) of the Charter to protest the pre-charge delay, especially if his complaint is against the Americanauthorities. [52] The Minister cannot criticize the American authorities for the time it took them to file the charges after April 15, 2008. [53] Plata has not shown that the American authorities should have informed him before June 8, 2009, that he would face subsequentcharges in the U.S. [54] It also cannot be said that the American authorities unduly delayed asking the Minister to extradite Plata on September 2, 2009,or that the Minister himself unduly delayed issuing the authority to proceed on October 5, 2009. [55] In sort, this is not a case in which the time elapsed is clearly unacceptable or would shock the conscience of Canadians andinfringe s. 7 of the Charter.

The Minister's conclusion in this respect is therefore far from unreasonable. LACK OF COMMUNICATION BETWEEN THE CANADIAN AND AMERICAN AUTHORITIES AND THE ERROR INPERMITTING THE PROSECUTION OF PLATA IN BOTH CANADA AND THE U.S. [56] The treaty between Canada and the U.S. provides that, in any given case, the authorities of the two countries must communicatewith each other to determine where the offender will be prosecuted.

This duty to communicate concerns only the two countries, and thelack of communication in a particular case cannot be raised by the offender, who may be concerned not with whether the two countriescommunicated with each other but whether his rights under s. 6 of the Charter have been infringed. [57] I reiterate that, on April 15, 2008, Plata was caught red-handed while exporting 264 kg of marijuana from Canada to the U.S.,and that he was caught on Canadian soil. He was immediately arrested by the Canadian authorities, and three charges were filed againsthim the next day: 1.

Between April 1, 2008 and April 15, 2008, conspiracy to possess marijuana for the purpose of trafficking and to exportmarijuana; 2. On April 15, 2008, possession of marijuana for the purpose of trafficking; and 3.

On April 15, 2008, exporting marijuana. [58] Because Plata was caught red-handed, the Canadian authorities were clearly justified in arresting him and charging him as theydid. [59] Apparently, the facts that took place on April 15, 2008, constituted but one event among many other similar, earlier ones inwhich the American authorities claimed Plata had conspired. [60] The document entitled Record of the Case for Prosecution, the Amended Record of the Case for Prosecution, and SupplementalRecord of the Case for Prosecution states that the American authorities had noted the import of drugs across the Quebec-New Yorkborder since July 11, 2007.

The American authorities had a witness prepared to describe how the organization operated and the extent ofthe monthly imports. The witness would provide the names of certain people involved in the case.

On a number of occasions, heaccepted marijuana from Plata and gave Plata money at the New York-Quebec border. [61] Another witness corroborates the first. [62] The record also shows that, after Plata's arrest, drugs were again imported to the U.S. by a person or persons who had conspiredwith Plata since June 2007. [63] In the circumstances, regardless of the fact that Plata had been charged by the Canadian authorities for his actions betweenApril 1, 2008, and April 15, 2008, the American authorities wanted to prosecute Plata for conspiracy from July of 2007 until June of2009. [64] It is clear that, according to the test set out in United States v.

Cotroni, (SCC), [1989] 1 S.C.R. 1469, theAmerican proceedings had their own justification and did not violate Plata's rights under s. 6 of the Charter. [65] Because I am of the opinion that the Minister did not render an unreasonable decision by rejecting Plata's argument that theQuebec judgment convicting him constituted res judicata thereby barring his prosecution in the United States, I cannot see how beingprosecuted in the U.S. after being prosecuted in Quebec infringes on Plata's rights under ss. 6 and 7 of the Charter.

The Canadianauthorities did not abuse their authority by arresting Plata on April 15, 2008, and prosecuting him in Quebec, and the Americanauthorities have not abused their authority by prosecuting Plata in the United States. At least, the Minister's conclusion in this regard isnot unreasonable. 4. Lack of correlation between the charges brought by the American authorities and the offences named by the Minister [66] In light of Canada (Justice) v.

Fischbacher, 2009 SCC 46 , [2009] 3 S.C.R. 170, the argument that there is norelationship between the charges against Plata in the U.S. and the corresponding offences named by the Minister in the authority toproceed is unfounded. The Minister's conclusion in this respect is therefore far from unreasonable. Moreover, Plata does not repeat thisargument in his appeal factum.

[ 67 ] Consequently, I would dismiss the appeal, allow in part the application for judicial review, and refer the matter back to the Minister for reconsideration in light of paragraphs [39], [40], and [41] of these reasons. MARC BEAUREGARD, J.A.