2020 QCCA 655, 2020 QCCA 655

Official English Translation of the Judgment of the Court Deland c. Procureur général du Canada (États-Unis d'Amérique) 2020 QCCA 655 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL Nos.: 500-10-006742-181 500-10-006743-189 500-10-006941-189 500-10-006959-199 (500-36-008575-170) (500-36-008576-178) DATE: MAY 20, 2020 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. MARK SCHRAGER, J.A. JOCELYN F. RANCOURT, J.A. No.: 500-10-006742-181 (500-36-008576-178) GUY DELAND APPELLANT – Person Sought v.

ATTORNEY GENERAL OF CANADA representing the United States of America RESPONDENT – Extradition Partner and UNITED STATES OF AMERICA IMPLEADED PARTY – Impleaded Party No.: 500-10-006959-199 GUY DELAND APPELLANT – Person Sought v. MINISTER OF JUSTICE OF CANADA RESPONDENT – Extradition Partner and UNITED STATES OF AMERICA IMPLEADED PARTY – Impleaded Party No.: 500-10-006743-189 (500-36-008575-170) CHARAN SINGH APPELLANT – Person Sought v. ATTORNEY GENERAL OF CANADA representing the United States of America RESPONDENT – Extradition Partner and UNITED STATES OF AMERICA IMPLEADED PARTY – Impleaded Party

No.: 500-10-006941-189 CHARAN SINGH APPELLANT – Person Sought v. MINISTER OF JUSTICE OF CANADA RESPONDENT – Extradition Partner and UNITED STATES OF AMERICA IMPLEADED PARTY – Impleaded Party JUDGMENT [ 1 ] The appellants, Messrs. Singh and Deland, appeal from a judgment rendered on May 18, 2018 by the Superior Court, District of Montreal (the Honourable Mr.

Justice Mario Longpré), that ordered their committal pending their extradition to the United States of America (the “Requesting State”). [1] [ 2 ] They also appeal from a decision of the Minister of Justice, the Honourable Jody Wilson-Raybould (the “Minister”), who signed a surrender order and ordered their surrender to the Requesting State, on November 26, 2018 in the case of Mr. Singh and on December 14, 2018 in the case of Mr.

Deland. [2] [ 3 ] The appellants had asked, inter alia , for disclosure of the evidence pertaining to the approvals obtained by the Requesting State to allow its undercover agent to gather evidence in Canada.

The judge dismissed this request on the ground that the appellants had shown no air of reality in order to obtain that information. [ 4 ] For the reasons of Rancourt, J.A., with which Chamberland and Schrager, JJ.A. concur, THE COURT : [ 5 ] ALLOWS the appeal; [ 6 ] REVERSES the judgment at first instance; [ 7 ] GRANTS in part the appellants’ motion for disclosure of the evidence; [ 8 ] ORDERS the respondent to disclose the following information within a period of 30 days following this judgment: A copy or

summary of all the approvals the Requesting State obtained to allow the U.S. Department of Homeland Security undercover agent to gather the evidence in Canada as well as all the documents and information (including verbal exchanges) having served to obtain those approvals. [ 9 ] RETURNS the file to the Superior Court so that a new committal hearing can be held after the aforementioned information has been disclosed. JACQUES CHAMBERLAND, J.A. MARK SCHRAGER, J.A. JOCELYN F.

RANCOURT, J.A Mtre Marie-Hélène Giroux MHG Avocats For appellant Guy Deland Mtre Louis-Nicholas Coupal Coupal Chauvelot For appellant Charan Singh Mtre Constantina Antonopoulos Department of Justice Canada For the respondent Date of hearing: November 19, 2019

REASONS OF JUSTICE RANCOURT 1. Context 1.1 The facts related to the investigation [ 10 ] This matter involves three individuals: Charan Singh, Guy Deland and Aydan Sin, all of whom are Canadian citizens. The extradition proceedings were initiated in Quebec for Messrs. Singh and Deland. Mr.

Sin faced the same proceedings in British Columbia and was surrendered to the Requesting State on December 13, 2018. [ 11 ] The extradition request stems from an investigation into the procurement, by the appellants, of controlled firearms and ammunition (the “controlled weapons”) [3] from a fictitious business situated in the Requesting State and their export to the United Arab Emirates and Colombia. [ 12 ] The investigation, initiated by the Department of Homeland Security (“Homeland”), targeted the illegal export of controlled weapons, including firearms and ammunition, from the Requesting State. [ 13 ] To do so, Homeland established a fictitious business specialized in the sale and export of controlled weapons.

The business set up a platform with a website, an email address and a telephone number. It displayed its own trademark and purported to carry on import- export activities from the city of Buffalo. In reality, it was operated by Homeland personnel, including an undercover agent. [ 14 ] In November 2016, Mr. Singh contacted a person from the fictitious business who proved to be the undercover agent. [ 15 ] He asked for information on how to procure and export controlled weapons to Dubai in the United Arab Emirates.

The undercover agent explained the steps for exporting these controlled weapons in accordance with the requirements of the International Traffic in Arms Regulations (“ ITAR ”). He also indicated that every person wishing to export weapons must hold an export licence issued by the United States Department of State Directorate of Defence Trade Control. [ 16 ] Mr.

Singh, who had been fully apprised of the statutory requirements, asked the undercover agent on several occasions about the possibility of carrying out the transaction without having to hold such a licence. [ 17 ] Invariably, the undercover agent reminded him that the only way to proceed was to follow the legal route and obtain an export licence. Mr. Singh replied that he “[did] not care about the paperwork” [4] and that the only important thing for him was to export the controlled weapons to Dubai. [ 18 ] At the beginning of December 2016, Mr.

Singh called the undercover agent to inform him that he would be introducing him to his partner, Mr. Sin. He also proposed a meeting in Montreal to discuss the transaction. [ 19 ] Royal Canadian Mounted Police (“RCMP”) agents monitored Mr. Singh’s comings and goings. He was seen at a Tim Hortons restaurant in the Montreal region on December 8, 2016 with Messrs. Deland and Sin. While this meeting took place, the undercover agent received an email from Mr. Singh containing additional particulars regarding the purchase order for controlled weapons. [ 20 ] On December 9, 2016, the undercover agent sent Mr.

Singh an email in which he confirmed the purchase order for controlled weapons to be exported. To this email, he attached: (1) the invoice in the amount of US$96,243.75 and (2) the form to be filled out to obtain an export licence. The email also contained a new warning, written in bold type, that obtaining this export licence was mandatory. [ 21 ] A few moments later, the undercover agent received a phone call from Mr. Sin. He confirmed that he and his partner wanted to proceed “the wrong way”.

He then asked the undercover agent to send him a new invoice on which there would be added a US$26,000 ”service fee” to proceed “the wrong way”. [5] [ 22 ] The appointment between the undercover agent and Mr. Sin was scheduled for December 14, 2016. The meeting took place at the Centre Sheraton in Montreal. The undercover agent was present. Although he expected to meet with Mr. Sin, it was Mr. Deland who introduced himself to him under the name “Mark”. Mr. Deland mentioned that he worked for Mr. Sin. [ 23 ] The undercover agent indicated to Mr.

Deland that the lawful way of completing the transaction required that an export licence be obtained. The latter replied that neither he nor his partners wanted to fill out paperwork and that “their signature was a bag of cash”. The undercover agent reiterated that Mr. Deland’s request was unlawful and that he had already sent Mr. Singh the appropriate form to obtain the licence. Mr. Deland acknowledged that the risk the undercover agent would be taking by carrying out the transaction without an export licence was the reason they were willing to pay him a “service fee”. [6] [ 24 ] During the meeting, Mr.

Deland informed the undercover agent that he would be provided with an encrypted BlackBerry in order to communicate with them about the transaction. He also informed him that several people in his network were using this type of device and that if one of them were to be compromised, the BlackBerry’s memory would erase itself as a security measure.

[ 25 ] In January 2017, Mr. Deland contacted the undercover agent by means of phone calls and text messages. He asked him to revise the purchase order for controlled weapons to be sent to Dubai and indicated that the rest of the order would go to Cartagena, in Colombia. [ 26 ] On January 9, 2017, Mr. Deland phoned the undercover agent to confirm that he would shortly be receiving the device equipped with a program called “Sky” that would protect communications between the people in his network.

He also explained that the device’s memory could be erased remotely as a protection measure. [7] [ 27 ] On January 30, 2017, a Homeland agent picked up a package that had been sent to the attention of the undercover agent. The package had been shipped from Indiana, but included a Canadian contact. It contained a BlackBerry Q5. That same day, the undercover agent contacted Mr.

Deland who helped him adjust the phone’s settings, including establishing two passwords and configuring a feature that would allow the undercover agent to erase the phone’s entire memory as a security measure if a police officer were to try to access it. [8] [ 28 ] On February 6 and 7, 2017, Mr. Deland transferred US$69,980, representing approximately 50% of the agreed price, to the bank account indicated by the undercover agent. The transferred funds originated from a Canadian bank account at the Toronto- Dominion Bank. [9] [ 29 ] In February and March 2017, Messrs.

Sin and Deland continued to communicate with the undercover agent about the purchase order for controlled weapons and about future purchase orders intended for the Netherlands and Australia. [ 30 ] The undercover agent confirmed to Messrs. Deland and Sin that a container containing the controlled weapons had been shipped to Dubai from New Jersey on March 18, 2017. He indicated that the controlled weapons intended for Colombia would be shipped from New Jersey on March 29, 2017. [10] [ 31 ] Suspecting that the undercover agent was working for law enforcement, Mr.

Deland asked him to cancel the shipment of the controlled weapons to Colombia at the end of March 2017. The undercover agent claimed that the shipment was already on the way. [ 32 ] The last discussion between the undercover agent and the appellants took place on April 10, 2017. Messrs. Singh and Deland asked him to hold on to the controlled weapons until they could find a new customer. *** [ 33 ] On June 20, 2017, Messrs.

Singh, Deland and Sin were arrested pursuant to a provisional arrest warrant. [11] [ 34 ] On August 11, 2017, the United States sent the Canadian authorities a record of the case summarily describing the facts warranting the extradition request, as well as a

summary of the evidence to be adduced at trial. [12] [ 35 ] On August 18, 2017, the United States formally requested the extradition of Messrs. Singh, Deland and Sin by diplomatic note. [13] [ 36 ] On September 11, 2017, the Minister signed an Authority to Proceed. The Authority to Proceed authorized the Attorney General of Canada to initiate proceedings to obtain a committal order from the Superior Court of Quebec in accordance with

section 15 of the E xtradition Act . [14] The Authority to Proceed stated that the offence under Canadian law, corresponding to the U.S. offence, was attempted weapons trafficking, contrary to ss. 99 and 463 Cr.C . [ 37 ] On October 19, 2017, the Requesting State submitted a supplemental record of the case to the Canadian authorities. [15] 1.2 The judicial proceedings [ 38 ] Each of the appellants presented a motion for disclosure of the evidence on January 10, 2018. They sought to obtain the following documents:

(1) The indictment issued by the United States of America; (2) the reports originating from the RCMP regarding the investigations and searches carried out with respect to Messrs. Sin, Deland and Singh; (3) every video and/or audio recording as well as the photographs taken at the Centre Sheraton and Tim Hortons; (4) all information regarding the steps and investigations carried out with respect to the Canadian bank account used to transfer funds to the account used by the undercover agent; (5) all conversations recorded between the undercover agent and Messrs.

Sin, Deland and Singh; and (6) all emails exchanged between the undercover agent and Messrs. Sin, Deland and Singh. [ 39 ] On February 28, 2018, Mr. Deland filed a motion for a stay of proceedings.

Claiming that he had been the victim of a trap set by the U.S. authorities, he pleaded that the entrapment, together with the impossibility of accessing the evidence collected by the U.S. authorities, justified a stay of proceedings. [ 40 ] The respondent applied to have the two motions dismissed on the ground that they were prima facie unfounded. [16] The judge granted said application from the bench on March 1, 2018 and dismissed the motions for disclosure of evidence and for a stay of proceedings. [ 41 ] On March 2, 2018, Messrs.

Singh and Deland presented a motion to hold a voir dire and exclude the evidence gathered by the Requesting State. They sought to exclude the evidence that had been collected, stating that the Superior Court is responsible for assessing the admissibility of the evidence gathered in Canada, in accordance with s. 32 of the E xtradition Act . On March 5, 2018, the

respondent once again applied to summarily dismiss this motion, arguing the absence of an air of reality and the absence of any legal basis on which the judge could exclude the evidence gathered. [ 42 ] On March 8, 2018, the judge, ruling from the bench with reasons to follow, granted the respondent’s application and dismissed the motion to hold a voir dire and exclude evidence. He took the application for a committal order under advisement. 2. The judgment under appeal [ 43 ] The judge signed the judgment on May 8, 2018. [ 44 ] He dealt first with the motion for disclosure of the evidence.

He wrote that the appellants’ motions had no air of reality justifying an inquiry of compliance with the Canadian Charter of Rights and Freedoms (the “ Charter ”). [17] He stated that at the committal order stage, the appellants were entitled to the evidence in the record of the case.

Further disclosure would be justified and ordered only in very rare cases of a Charter violation. [18] He therefore likened the appellants’ motions to a fishing expedition. [19] [ 45 ] Moreover, he did not find that there was an air of reality to a Charter violation with respect to the evidence gathered in Canada by the undercover agent. In that regard, he noted: “The evidence gathered in Canada can be submitted in

summary form in the ROC in accordance with

section 33 of the Extradition Act , and, as such, it is presumptively admissible under

section 32 of the Extradition Act ”. [20] The appellants failed to convince him that the record of the case was lacking information, which would have justified an order for further disclosure. [21] [ 46 ] As regards the motion for a stay of proceedings, he wrote that the allegations in support thereof did not establish an air of reality with respect to a Charter violation. [22] He stated that the entrapment defence is not one to be considered by the extradition judge, but rather by the trial judge. [23] [ 47 ] As regards the grounds warranting the

summary dismissal from the bench, on March 8, 2018, of the motion to hold a voir dire and exclude evidence, he explained that he had already concluded that there was no air of reality to a Charter violation that could have justified further disclosure. He added that the allegations of the motion seeking to exclude the evidence gathered in Canada were “broad and unspecific”. [24] This is why he granted the respondent’s application for a

summary dismissal and dismissed the appellants’ motion to hold a voir dire and exclude the evidence. [ 48 ] Lastly, he ordered the committal of the appellants after having dismissed their argument that there was insufficient proof of the intent ( mens rea ) to commit the offence described in s. 99 Cr.C . [25] He was of the view that they were aware that what they were doing was illegal when they committed the offences. [26] He also dismissed the argument to the effect that the Requesting State no longer had evidence of the use of the BlackBerry. [27] 3.

The ministerial decisions [ 49 ] The Minister rendered two decisions with essentially the same conclusions. [ 50 ] She dismissed the appellants’ motions for further disclosure for reasons similar to those expressed by the Superior Court judge. [28] [ 51 ] Next, she considered whether surrendering the appellants to the Requesting State would constitute an unjustifiable violation of s. 6 of the Charter .

After having analyzed the factors set out by the Supreme Court in Cotroni , [29] she concluded that the Requesting State has a greater interest in prosecuting, because it initiated the investigation and the evidence was gathered there. [30] She was of the view that surrendering the appellants to the Requesting State would not be unjust or oppressive within the meaning of s. 44(1) of the Extradition Act . [ 52 ] The Minister pointed out that the defence of entrapment could be raised at the trial on the merits. [ 53 ] In addition, when addressing the disparity between the sentences the appellants could face in both countries, she was of the view that this disparity is not oppressive or unjust and would not shock the conscience of Canadians. [ 54 ] Lastly, the ministerial decisions dealt specifically with the indictment on money laundering charges.

Indeed, a few months before the Minister rendered her decisions, Messrs. Deland and Singh had received a copy of the U.S. indictment from the International Assistance Group of the Department of Justice. The indictment contained the count of “Conspiracy to commit money laundering”, contrary to s. 1956(

h) of the United States Code . [31] [ 55 ] The appellants therefore pointed out to the Minister that this new offence had not been declared in the Authority to Proceed and that they now faced a much more severe sentence, which was liable to shock the conscience of Canadians. They argued that the significant disparity between the sentence liable to be imposed by the Requesting State and that to which they would be liable in Canada rendered their extradition “unjust and oppressive” within the meaning of s. 44(1) of the Extradition Act . [ 56 ] In her decisions, the Minister replied that this observation was unfounded because their extradition had not been requested for

this offence. She stated that her surrender order “ does not include it ”. She added that the principle of specialty, enshrined in the Extradition Treaty between Canada and the United States of America , [32] would protect them against any prosecution for offences other than those for which Canada had ordered their extradition. She therefore refused to analyze the severity of the sentences the appellants could face if found guilty of money laundering and performed her analysis solely in respect of the offence of attempted weapons trafficking. 4.

Grounds of appeal for the extradition judgment and the ministerial decisions [ 57 ] Messrs. Singh and Deland are of the view that the judge erred by refusing to authorize additional disclosure. [ 58 ] Mr. Singh further argues that the judge erred in law in his assessment of the elements that make up the offence of attempted weapons trafficking under s. 99 Cr.C . [ 59 ] As for Mr. Deland, he alleges that the Minister erred in refusing to disclose additional evidence.

Furthermore, he submits that she should have replied to his observations on the count of money laundering for which Canada also ordered his surrender to the Requesting State. Lastly, he argues that s. 59 of the Extradition Act violates s. 7 of the Charter . [ 60 ] Messrs. Singh and Deland contend that the Minister erred when interpreting the application of the factors in Cotroni [33] pertaining to s. 6 of the Charter . 5.

Analysis 5.1 The extradition judge’s refusal to authorize further disclosure 5.1.1 Charter violation and entrapment [ 61 ] The appellants first seek further disclosure in order to prove a Charter violation and thereby establish an entrapment defence. [ 62 ] This ground must be dismissed.

The extradition judge can order the production of additional evidence only in exceptional circumstances, that is, in the rare instances where there is at least an air of reality to the Charter claims. [34] Of course, it is the Charter violation that gives rise to additional disclosure, not the reverse. [35] Otherwise, this would open the door to fishing expeditions, [36] which must necessarily be excluded from the extradition process, one that is designed to ensure prompt compliance with Canada’s international obligations. [37] The appellants admit that they need this evidence in order determine whether there has been a Charter violation. [38] Moreover, the appellants provided no concrete evidence that would lend an air of reality to their claim of a Charter violation.

They rely solely on the nature of the undercover police operation and on vague conjecture, which cannot suffice. [39] [ 63 ] Moreover, the extradition judge cannot consider the defence of entrapment the appellants have raised, because his role is limited to determining, in accordance with s. 29 of the Extradition Act , whether there is sufficient evidence of a corresponding offence under Canadian law for the offence alleged in the Requesting State. As the extradition judge rightly noted, the appellants will be able to raise the defence of entrapment at trial. [40] 5.1.2 Evidence gathered in Canada [ 64 ] Messrs.

Singh and Deland also argue that, pursuant to s. 32(2) of the Extradition Act , “evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted”; in the present case, that is the Charter and the law of evidence. In their view, the judge should have allowed disclosure of the additional evidence pertaining to the approvals obtained by the Requesting State that allowed it to operate within Canada and gather evidence there.

This information would make it possible to determine the admissibility of the evidence so obtained. [41] [ 65 ] In my view, the appellants are correct. [ 66 ] It is accurate to state, as the respondent does, that a committal hearing is not a trial, [42] that the appellants are not entitled to the highest possible level of disclosure, [43] that the disclosure requirements established by the Supreme Court in Stinchcombe [44] do not apply to extradition proceedings and that the appellants cannot insist on disclosure of all the evidence resulting from a joint investigation. [45] [ 67 ] On the other hand, since the Supreme Court ruling in United States of America v.

Anekwu , [46] it is established that the record of the case must contain certain information on how the evidence was obtained in Canada. As Charron, J. stated: Since compliance with Canadian rules of evidence is mandatory in respect of Canadian-gathered evidence, it follows that the record of the case should contain sufficient information to enable the person sought and the extradition judge to ascertain whether any item of evidence has been gathered in Canada and, when that is the case, some information should also be provided on how it was obtained . […]

In short, I conclude that a flexible approach that does not insist that evidence take a particular form, but that still ensures that the person sought may challenge the admissibility of evidence under the Charter , or its content according to Canadian evidentiary rules, is more consistent with the purpose of the extradition hearing. [47] [Emphasis added] [ 68 ] This excerpt highlights the two components of the requirement set out in s. 32(2) of the Extradition Act that evidence must satisfy Canadian rules of evidence.

First, the record of the case must make it possible to ascertain whether any item of evidence was gathered in Canada.

Second, the record of the case must contain details on the manner in which the evidence was obtained in Canada, so that the parties and the extradition judge can ascertain whether that evidence is admissible under Canadian law. [ 69 ] It should be noted that, in the present matter, the record of the case contains sufficient information so that the appellants and the extradition judge can ascertain that evidence was gathered in Canada by the U.S. undercover agent when he was in Montreal on December 14, 2016. The record of the case indicates that the undercover agent identified Mr.

Deland, discussed details with him regarding the procurement, export and delivery of the controlled weapons and answered his questions on shipping methods, the lead time for delivery and the terms of payment. During this meeting, the undercover agent also learned that Mr. Deland was firmly determined to complete the transaction without complying with the legal requirements. [ 70 ] That having been said, does the record of the case contain details on the manner in which this evidence was obtained by the undercover agent on Canadian soil? [ 71 ] In United States of America v.

Fraser , [48] the British Columbia Court of Appeal specified that, quite apart from whether the person sought can show an air of reality to a Charter breach, the record of the case must include sufficient information to determine that evidence gathered in Canada is admissible according to Canadian rules of evidence, as required by s. 32(2) of the Extradition Act . [49] [ 72 ] It concluded that the test that applies to this question differs from the test that applies when a Charter violation is alleged [50] and that it imposes a lesser burden on the person sought: “the threshold is lower than an air of reality and is no higher than raising a question”. [51] The person sought must merely raise a question or a reasonable possibility that evidence gathered in Canada is not admissible according to Canadian rules of evidence. [ 73 ] More recently, in Belapatino Savaresse c.

Procureure générale du Canada (États-Unis d’Amérique) , [52] this Court had to determine, in particular, whether the record of the case contained sufficient information to ascertain whether the evidence gathered by a U.S. undercover agent was admissible under Canadian law. [53] Mr.

Savaresse had requested, inter alia , disclosure of the “appropriate approvals” [54] that the Requesting State had received from Canada to allow the undercover agent to gather evidence in the country, a request that the extradition judge had refused. [ 74 ] In his reasons, Schrager, J.A. was of the view, like the British Columbia Court of Appeal in Fraser , that the person sought was not required to establish an air of reality of a Charter violation, but was merely required to raise a question or a reasonable possibility that evidence gathered in Canada was inadmissible under the Canadian rules of evidence. [55] He stated that the admissibility of evidence must be determined on the facts, such that if a doubt regarding admissibility exists, disclosure of the evidence should be ordered. [56] [ 75 ] In the instant case, it is clear that the extradition judge was mistaken about the applicable test, as evidenced in the following passage from his judgment: [15] The persons sought have established no “air of reality” of a Charter violation regarding any of the evidence gathered in Canada that is summarized in the ROC and in the SROC.

The evidence gathered in Canada can be submitted in

summary form into the ROC in accordance with

section 33 of the Extradition Act , and, as such, it is presumptively admissible under

section 32 of the Extradition Act . [57] [Emphasis added] [ 76 ] The judge applied the “air of reality” test instead of the test to determine whether the appellants had raised a question or a reasonable possibility that the evidence gathered in Canada was not admissible according to Canadian rules of evidence. [ 77 ] In addition to this mistake, the judge did not address the question of whether the record of the case contained sufficient details to ascertain whether the evidence gathered in Canada by the U.S. undercover agent was admissible under Canadian law. [ 78 ] However, he should have done so, particularly in light of the appellant’s argument regarding the approvals the Requesting State had received to allow its undercover agent to gather evidence in Canada. [ 79 ] In Savaresse , Schrager, J.A. dealt specifically with the approvals that the Requesting State had received to allow the U.S. undercover agent to gather evidence in Canada.

He wrote as follows: [ translation ] [32] Do the ROCs in the case at bar contain sufficient information to ascertain whether the evidence gathered in Canada would be admissible under Canadian law? […] [33] In the instant case, none of the ROCs contains information regarding the “appropriate approvals”. What is their nature, how were these approvals obtained and who granted them? There is no such information in the ROC and nothing to that effect was disclosed at the hearing before the trial judge. Furthermore, we do not know who decides whether approvals are appropriate. In this sense, the expression

is an opinion rather than a statement of fact. […] [36] Given the multiple contacts between the U.S. undercover agent and the vague mention of “appropriate approvals” and considering s. 462.31

(3) Cr.C . , the applications are not a fishing expedition . Since the judge did not address these matters, this Court must intervene. Admittedly, she had a discretionary power, but the fact that she gave no weight to these relevant considerations, as described hereinabove, justifies the Court’s exercise of its jurisdiction under s. 53 of the Extradition Act to allow the appeal. [58] [Emphasis added] [ 80 ] Schrager, J.A.’s remarks can certainly be applied to the appellants’ situation. [ 81 ] The record of the case regarding them contains no details on the approvals the Requesting State received.

We do not know the nature of those approvals, nor how they were obtained or who granted them. This information is relevant because it will allow the appellants, and the extradition judge, to gauge whether the evidence complies with Canadian law, according to s. 32(2) of the Extradition Act . [ 82 ] The fact that the record of the case contains not even the slightest indication regarding the procedures or approvals that preceded a police officer from a foreign state gathering the evidence on Canadian soil raises a reasonable possibility that the evidence was not gathered in accordance with Canadian law.

Consequently, the appellants were justified in asking the Superior Court to obtain additional disclosure to that effect and the trial judge committed a reviewable error by not giving any weight to that request. [ 83 ] Notwithstanding the terms of the Authority to Proceed, the surrender order mentions both the offence of attempted weapons trafficking and that of money laundering. Under the circumstances, one may question the U.S. undercover agent’s involvement in committing the offence of laundering the proceeds of crime described in s. 462.31 Cr.C .

Indeed, he agreed to receive a sum of money without the mandatory form for the export licence having been filled out. Although the operations on Canadian soil were carried out with the cooperation of the RCMP, nothing in the evidence establishes that they were carried out “under the direction of a peace officer” within the meaning of s. 462.31(3) Cr.C . [ 84 ] Consequently, I am of the view that the Court should order the respondent to disclose the following information within a period of 30 days following the date of this judgment: A copy or

summary of all the approvals the Requesting State obtained to allow the U.S. Department of Homeland Security undercover agent to gather the evidence in Canada as well as all the documents and information (including verbal exchanges) having served to obtain those approvals. [ 85 ] The file should also be returned to the Superior Court so that a new committal hearing can be held after the aforementioned information has been disclosed, in accordance with s. 54 (

a) of the Extradition Act . 5.2 The fate of the ministerial decisions [ 86 ] I now turn to the decisions rendered by the Minister. [ 87 ]

Section 38 of the Extradition Act requires a judge who issues an order of committal to send the Minister a copy of the order, a copy of the evidence adduced at the hearing that has not already been transmitted to the Minister and any report that the judge thinks fit.

Section 40 provides that the Minister may, within 90 days of the extradition judge’s committal order, sign an order for the surrender of the person sought. [ 88 ] Practically speaking, the Minister exercises her jurisdiction as soon as the extradition judge issues a committal order.

The scheme of the Extradition Act is such that one must conclude that sending the file back to the extradition judge for a new committal hearing of the person sought necessarily entails that the Minister’s decision is set aside. [59] [ 89 ] In conclusion, even if this is not required in order to adjudicate the appeal, it should be noted that, contrary to the Minister’s assertions in her decisions, the surrender orders expressly mentioned the offence of money laundering.

By refusing to answer the appellants’ observations on this count for which they are to be surrendered to the Requesting State, the Minister committed a palpable and unreasonable error. [ 90 ] For these reasons, it is my opinion that the judge committed a reviewable error by not allowing the disclosure of the evidence pertaining to the approvals obtained by the Requesting State. Consequently, I propose that the respondent be ordered to disclose that information and I return the file to the Superior Court so that a new committal hearing of the appellants can be held. JOCELYN F. RANCOURT, J.A.