2017 QCCA 621, 2017 QCCA 621

Damgajian c. The Attorney General of Canada (United States of America) 2017 QCCA 621 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005837-156 (500-36-006910-130) 500-10-005958-150 DATE: April 6, 2017 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. YVES-MARIE MORISSETTE, J.A. MARIE-JOSÉE HOGUE, J.A. No: 500-10-005837-156 JOSEPH DAMGAJIAN PETITIONER – interested person v. THE ATTORNEY GENERAL OF CANADA on behalf of the UNITED STATES OF AMERICA RESPONDENT – extradition partner No: 500-10-005958-150 JOSEPH DAMGAJIAN PLAINTIFF v.

MINISTER OF JUSTICE OF CANADA RESPONDENT – decision maker JUDGMENT [ 1 ] THE COURT , for the reasons of Justice Hogue, with which Chief Justice Duval-Hesler and Justice Morissette concur: [ 2 ] DISMISSES Mr. Damgajian’s motion for leave to appeal the committal order; [ 3 ] GRANTS Mr. Damgajian’s application for judicial review, QUASHES the Minister of Justice’s order to extradite and REFERS the matter back to the current Minister of Justice for her to determine whether an order of surrender should be issued and, if so, for what offence(s). NICOLE DUVAL HESLER, C.J.Q. YVES-MARIE MORISSETTE, J.A.

MARIE-JOSÉE HOGUE, J.A. Mtre Pierre Poupart, Ad. E. LES AVOCATS POUPART, DADOUR, TOUMA

For the Petitioner Mtre Laurent Brisebois MINISTÈRE DE LA JUSTICE CANADA For the Respondent Date of hearing: January 17, 2017 REASONS OF HOGUE, J.A. [ 4 ] The United States of America requested the extradition from Canada of Petitioner Joseph Damgajian to stand trial on various charges in relation with the importation and the distribution of pseudoephedrine in the United States. [ 5 ] The Petitioner is a citizen of Canada, of the United States and of Lebanon.

He resides in Canada and does business on the internet, offering around 600 “Health and Beauty” products. [ 6 ] The Petitioner is alleged to have sold and delivered pseudoephedrine through the postal system to customers in the United States and Australia, without holding the required permit. [ 7 ] Along with its extradition request, the United States produced a Record of the Case for Prosecution (RCP) and a First Supplemental Record of the Case for Prosecution (FSRCP) containing a

summary of the evidence gathered by the investigators. [ 8 ] Pseudoephedrine is a controlled substance listed in

Schedule VI of the Controlled Drugs and Substances Act ( LRCDA ). It is commercialized under different names and used mainly as a decongestant. It is also a precursor to methamphetamine, a substance listed on

Schedule I of the LRCDA . Although pseudoephedrine is sold freely on the Canadian market, it cannot be exported or imported without a valid permit. [ 9 ] On September 6, 2013, the Minister of Justice of Canada issued an Authority to Proceed (ATP ), authorizing the Attorney General of Canada to request from the Court the issuance of a committal order. The offence, from a Canadian standpoint, was then described as the « importation of a

Schedule VI controlled substance, contrary to section 6 (1) of the Controlled Drugs and Substances Act ». [ 10 ] After a committal hearing, the judge of the Superior Court of Quebec ruled that there was sufficient evidence to justify committal for the offence of importation set out in the ATP under Canadian law.

The Petitioner was committed to custody to await the Minister of Justice’s decision on surrender. [ 11 ] The Petitioner seeks to appeal the judgment of committal. [ 12 ] On August 21, 2015, the then Minister of Justice rendered his decision and ordered that the Petitioner be unconditionally surrendered for all offences identified in the American indictment and in the extradition request. [ 13 ] The Petitioner has filed a Petition for Judicial Review of the Minister’s decision as well as a Motion for Leave to Appeal the Committal Order. [ 14 ] The Petitioner was released by a judge of this Court pending the appeal and the judicial review of the Minister’s decision. [ 15 ] At the hearing before the Court, the Petitioner suggested that leave to appeal is no longer required, explaining that it was only sought because he was originally raising a mixed question of fact and law that he has since abandoned.

The only remaining question being whether the extradition judge erred in concluding that the ATP correctly identified the offence which would justify committal for trial in Canada, he submits that he has an automatic right of appeal because that issue is one of law. [ 16 ] The Court is therefore seized of both the motion for leave to appeal the committal order and the petition for judicial review of the Minister’s decision.

THE MOTION FOR LEAVE TO APPEAL [ 17 ] The Petitioner submits that the committing judge was mistaken in concluding that the evidence contained in the RCP and the FSRCP would support a charge of importation, under Canadian law, had the facts occurred in Canada. [ 18 ] The offence being described in the ATP as that of “importation”, the Petitioner argues that the evidence cannot justify extradition since it only demonstrates an “ exportation ” from Canada and not an “ importation ” into Canada. [ 19 ] That issue is a mixed question of fact and law for which leave is necessary.

In deciding whether to grant leave, the Court must consider many factors, including the seriousness of the argument raised. [1] [ 20 ] The argument is clearly frivolous. [ 21 ] It is a well-recognized principle, codified in section 3(1) of the Extradition Act and known as the double criminality principle,

that for extradition to be allowed, it is essential that the offence or the conduct forming the basis of the extradition request be criminal under the law of both the requesting and the requested countries. [ 22 ] The Minister must first determine whether such is the case and, in the affirmative, issue an ATP allowing the Attorney General to initiate extradition proceedings on behalf of the requesting country. [2] [ 23 ] It is not necessary that the offence or the impugned conduct in the ATP be described or classified exactly as the equivalent offence in the foreign country (Art. 3(2) Extradition Act ).

As was rightly observed: “One has rather to look at the essence of the offence to determine if the double criminality requirement is met.” [3] [ 24 ] The Superior Court judge sitting as an extradition judge determines whether the impugned conduct constitutes a crime in Canadian law.

She must examine “the evidence in light of Canadian law and determine whether it reveals conduct that would justify committal for the crime listed in the ATP if it had occurred in Canada.” [4] [ 25 ] In answering this question, the extradition judge has no choice but to resort to a juridical fiction. [ 26 ] In the present case, the judge, rightly, asked herself whether the importation of pseudoephedrine into Canada, from the United States of America, would have constituted an offence in Canadian law and if the evidence was sufficient to justify a committal for “ importation ” under Canadian law, had the impugned conduct occurred here.

She considered that the Petitioner, had he been in the United States, would have sold and delivered pseudoephedrine to Canadian customers. [ 27 ] That was the proper approach. [ 28 ] As Blair J.A. of the Ontario Court of Appeal rightly observed: [35] Finally, I do not accept the argument that there was no evidence to support the offences in the authority to proceed.

The appellant submits that the authority to proceed calls for extradition on charges of conspiracy to traffic in and to import ecstasy into Canada , whereas all the evidence points to importing into the United States . [36] This submission is founded on a misconception of the purpose for outlining the proposed offence in the authority to proceed .

An authority to proceed must contain “the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person”: Extradition Act , s. 15(3)(c). [Emphasis added.] Here, the record of the case in the United States proceedings alleges that the appellant conspired to traffic in ecstasy and to import it into the United States.

Thus the authority to proceed simply identifies – correctly – the Canadian offences mirroring the charges that the appellant’s alleged conduct gives rise to in the requesting state . [37] The Minister made no error on this issue. [5] [ 29 ] I therefore propose that the motion for leave to appeal the committal order be dismissed.

THE PETITION FOR JUDICIAL REVIEW [ 30 ] Once the matter was remitted to the then Minister of Justice for him to decide whether to order the Petitioner’s surrender, the latter made submissions to the Minister in accordance with s. 43(1) of the Act , both personally and through counsel. [ 31 ] The Minister reviewed these submissions and, in a lengthy letter dated August 21, 2015, informed the Petitioner that he had decided to order his unconditional surrender to the United States.

In his view, such an order would not be unjust or otherwise oppressive, nor would it result in a violation of the Petitioner’s constitutional rights.

ANALYSIS [ 32 ] Although the principles applicable to a petition for judicial review of a Minister’s decision to order surrender are generally well known, a general overview may be of help. [ 33 ] First, it is useful to bear in mind that once the matter has been examined by the extradition judge, and remitted to the Minister for a full review of the case and a decision, the Minister’s power to accept or to refuse the extradition request is subject to the provisions of the Act. [ 34 ] The reasons for refusal are set out in ss. 44, 46 and 47 of the Act . Some are mandatory, while others are discretionary: 44.

(1) The Minister shall refuse to make surrender order if the Minister is satisfied that (

a) the surrender would be unjust or oppressive having regard to all relevant circumstances; or (

b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical 44.

(1) Le ministre refuse l’extradition s’il est convaincu que :

a) soit l’extradition serait injuste ou tyrannique compte tenu de toutes les circonstances;

b) soit la demande d’extradition est présentée dans le but de poursuivre ou de punir l’intéressé pour des motifs fondés sur la race, la nationalité, l’origine ethnique, la langue, la couleur, la religion, les convictions politiques, le sexe,

disability or status or that the person’s position may be prejudiced for any of those reasons.

(2) The Minister may refuse to make a surrender order if the Minister is satisfied that the conduct in respect of which the request for extradition is made is punishable by death under the laws that apply to the extradition partner. 46.

(1) The Minister shall refuse to make a surrender order if the Minister is satisfied that (

a) the prosecution of a person is barred by prescription or limitation by under the law that applies to the extradition partner; (

b) the conduct in respect of which extradition is sought is a military offence that is not also an offence under criminal law; or (

c) the conduct in respect of which extradition is sought is a political offence or an offence of a political character.

(2) For the purpose of subparagraph (1)(c), conduct that constitutes an offence mentioned in a multilateral extradition agreement for which Canada, as a party, is obliged to extradite the person or submit the matter to its appropriate authority for prosecution does not constitute a political offence or an offence of a political character. The following conduct also does not constitute a political offence or an offence of a political character : (

a) murder or manslaughter; (

b) inflicting serious bodily harm; (

c) sexual assault; (

d) kidnapping, abduction, hostage-taking or extortion; (

e) using explosive, incendiaries, devices or substances in circumstances in which human life is likely to be endangered or serious bodily harm or substantial property damage is likely to be caused; and (

f) an attempt or conspiracy to engage in, counselling, aiding or abetting another person to engage in, or being an accessory after the fact in relation to, the conduct referred to in any of paragraphs (

a) to (e). 47. The Minister may refuse to make a surrender order if the Minister if satisfied that (

a) the person would be entitled, if that person were tried in Canada, to be discharged under the laws of Canada because of a previous acquittal or conviction; (

b) the person was convicted in their absence and could not, on surrender, have the case reviewed; l’orientation sexuelle, l’âge, le handicap physique ou mental ou le statut de l’intéressé, ou il pourrait être porté atteinte à sa situation pour l’un de ces motifs.

(2) Il peut refuser d’extrader s’il est convaincu que les actes à l’origine de la demande d’extradition sont sanctionnés par la peine capitale en vertu du droit applicable par le partenaire. 46.

(1) Le ministre refuse l’extradition s’il est convaincu que :

a) toute poursuite à l’endroit de l’intéressé est prescrite en vertu du droit du partenaire;

b) les actes reprochés constituent une infraction militaire sans constituer par ailleurs une infraction criminelle;

c) les actes reprochés constituent une infraction à caractère politique.

(2) Ne peuvent être considérés comme une infraction à caractère politique les actes qui aux termes d’un accord multilatéral auquel le Canada est

partie constituent une infraction pour laquelle l’extradition — ou le renvoi de l’affaire aux autorités compétentes au Canada pour intenter la poursuite — est obligatoire, ni les actes suivants :

a) le meurtre ou l’homicide involontaire coupable;

b) l’infliction de lésions corporelles graves;

c) l’agression sexuelle;

d) l’enlèvement, le rapt, la prise d’otage ou l’extorsion;

e) l’utilisation d’explosifs, d’engins incendiaires, de substances ou d’appareils qui est susceptible de mettre en danger la vie ou de causer des lésions corporelles graves ou des dommages considérables à la propriété;

f) la tentative, le complot, la complicité après le fait, le conseil, l’aide ou l’encouragement à l’égard des actes visés aux alinéas

a) à e). 47 . Le ministre peut refuser d’extrader s’il est convaincu que :

a) l’intéressé, s’il subissait son procès au Canada, bénéficierait d’une libération du fait d’une condamnation ou d’un acquittement antérieurs;

b) l’intéressé a été condamné par défaut et ne pourrait, une fois extradé, obtenir une révision de son procès;

c) l'intéressé avait moins de dix-huit ans au moment de la perpétration de l'infraction et le droit applicable par le partenaire est incompatible

(

c) the person was less than eighteen years old at the time of the offence and the law that applies to them in the territory over which the extradition partner has jurisdiction is not consistent with the fundamental principles governing the Youth Criminal Justice Act ; (

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

e) one of the conduct on which the extradition partner bases it request occurred in the territory over which the extradition partner has jurisdiction. avec les principes fondamentaux mis en œuvre par la Loi sur le système pénal de justice pour les adolescents ;

d) l’intéressé fait l’objet d’une poursuite criminelle au Canada pour les actes à l’origine de la demande d’extradition;

e) aucun des actes à l’origine de la demande d’extradition n’a été commis dans le ressort du partenaire. [ 35 ] The Courts have determined that the Minister is under an obligation to consider all relevant circumstances [6] in deciding to issue a surrender order.

He also has to explain the reasons for his decision. [7] [ 36 ] The Court will refer the matter back to the Minister if it comes to the conclusion that he has omitted to consider a relevant factor, or has given weight to an irrelevant factor, [8] or misunderstood one or several relevant factors. [ 37 ] Determining whether surrender would be unjust or oppressive is broadly discretionary and the Courts must show great deference to the Minister’s decision, limiting their intervention to cases where that decision is unreasonable. [9] [ 38 ] In the present case, the Petitioner argued that ordering his surrender would shock the Canadian conscience given the severity of the sentence he would face in the United States.

He also invoked his personal circumstances as well as his right to remain in Canada under section 6(1) of the Canadian Charter of Rights and Freedoms . [10] These arguments were all rejected by the Minister. [ 39 ] At the hearing, the Petitioner did not stress the arguments based on his personal circumstances nor on his right to remain in Canada. [ 40 ] Instead, the Petitioner argued that in reaching his decision to order surrender, the Minister had made three errors:

a) he founded his decision partially on an erroneous conclusion of fact;

b) he made a mistake in his analysis of how the offence should be identified in the Order of Surrender; and

c) he misunderstood the Petitioner’s argument that he did not realize that pseudoephedrine was a controlled substance. [ 41 ] I propose to analyze those arguments individually.

A) Did the Minister found his decision partially on an erroneous conclusion of fact? [ 42 ] The Petitioner’s proposition is that the Minister mistakenly took into consideration the quantity of pseudoephedrine sold and delivered in Australia in reaching his decision to order surrender.

He states that the Minister should have considered only the quantities exported to the United States. [ 43 ] A careful review of the Minister’s decision, however, leads to the conclusion that he did not consider the pseudoephedrine quantities sold to Australian customers in reaching his decision. [ 44 ] Although it is true that the Minister referred to the sales and deliveries made in Australia, which amount to thousands of pills, he did so only in his

summary of the facts revealed by the evidence provided by the United States in the RCP and the FSRCP . [ 45 ] His letter to the Petitioner’s attorney’s shows that he only took into consideration the quantities delivered to American customers.

Looking at the severity of the potential sentence faced by the Petitioner in the United States to determine whether it would shock the conscience of Canadians, he wrote: In my view, the possibility of severe penalties for an individual who has sent hundreds of pseudoephedrine pills , a precursor to methamphetamine, to the United States would not be considered unacceptable to the collective Canadian conscience… (Emphasis added) [ 46 ] This passage, referring to hundreds of pseudoephedrine pills, clearly suggests that the Minister only considered pseudoephedrine quantities imported into the United States. [ 47 ] Petitioner’s argument in that respect must fail.

B) Did the Minister make a mistake in analyzing how the offence should be described in the Order of Surrender? [ 48 ] In his submissions to the Minister, the Petitioner, while acknowledging the Minister’s wide discretion in drafting his Order, argued that the offence mentioned in the Order of Surrender should be that mentioned in the committal order instead of all those mentioned in the indictment, namely: “Importation of a

Schedule VI controlled substance, contrary to section 6(1) of the Controlled

Drugs and Substances Act .” [ 49 ] The Petitioner argued that since the evidence provided by the United States through the RCP and the FSRCP would not justify, under Canadian law, a committal for an offence suggesting that he knew that the pseudoephedrine would be used to manufacture a controlled substance such as methamphetamine, his case should be treated in accordance with the rule of speciality and the Minister should order surrender for the sole offence mentioned in the committal order. [ 50 ] Thus, the American authorities would be prevented from prosecuting him for any offences implying knowledge that the pseudoephedrine would be used to manufacture methamphetamine, such offences entailing potentially more severe sentences. [ 51 ] The Minister, offering little explanation, ordered the surrender on all the offences listed on the indictment. [ 52 ] It is true that the Minister, in drafting his order, has the discretion to “describe the offence in respect of which the extradition is requested, the offence for which the committal was ordered or the conduct for which the person is to be surrendered” as per

section 58(

b) of the Act . [ 53 ] The Minister in this instance stated that he did not understand the reason behind the Petitioner’s request that only the offence described in the committal order should be included in the Order of Surrender: While you have indicated Mr. Damgajian’s family situation is the reason that I should choose to surrender him on the Canadian offence listed in the ATP, you have provided no other reasoning on this point. Mr. Damgajian’s family circumstances have already been discussed, and it is not clear on its face why Mr.

Damgajian’s family situation provides a reason to surrender him on the Canadian offence. Indeed, it is difficult to understand how surrendering Mr. Damgajian on the Canadian charge listed in the ATP would put him in any more of a favorable position than surrendering him on the American offences. [ 54 ] Failing to understand the reason behind the Petitioner’s request, the Minister was unable to properly exercise his discretion.

The matter must therefore be referred back to the present Minister of Justice so that she may consider the possibility that the Petitioner may face more severe sentences were all the offences mentioned in the American indictment included in the Order of Surrender.

C) Did the Minister misunderstand the Petitioner’s argument that he did not know that pseudoephedrine was a controlled substance? [ 55 ] The Minister rejected this argument on the basis that he was not authorized to review the extradition judge’s decision nor to evaluate the weight of the evidence provided by the United States. [ 56 ] The Petitioner states that what he was trying to convey to the Minister was that he should take into consideration the fact that he did not realize what use would be made of the pseudoephedrine since his lack of knowledge would make the severity of his potential sentence shocking to the conscience of Canadians. [ 57 ] This argument is clearly relevant to the issue of determining whether, in light of all the circumstances, a surrender would be unjust or oppressive (section 44(1) of the Act ). [ 58 ] I am of the view that, in the circumstances of this case, the Minister was under the obligation to consider the potential sentence faced by the Petitioner in deciding whether a surrender order would be unjust or oppressive or, in other words, would be shocking to the conscience of Canadians. [ 59 ] The Minister had before him the opinion of an American lawyer, namely Mr.

Christopher James Nathan, who, having reviewed the file, filed two affidavits containing his opinion that the Petitioner would face a sentence of between 135 and 235 months of imprisonment (from 10 to 20 years), depending on how much pseudoephedrine he was found to have imported into the United States, on his criminal history, on his acceptance of responsibility or lack thereof, as per the United States Sentencing Guidelines .

He also stated that a federal prisoner will generally serve at least 85% of his sentence. [ 60 ] The Minister sought additional information from the United States Department of Justice – Office of International Affairs – and was advised that there are no minimum penalties for the offences for which the Petitioner would be charged and that the maximum penalties for each charge vary from 4 to 20 years.

Furthermore, the decision to order sentences to run consecutively or concurrently is a discretionary one. [ 61 ] The Minister pointed out that the maximum penalty in Canada would be 10 years of imprisonment and, citing the Supreme Court of Canada, expressed the opinion that surrender should not be denied specifically on the basis that the applicable penalties in the state requesting extradition are more severe than those that might be imposed under Canadian law.

He did acknowledge that, as mentioned in Fischbacher , [11] he could consider such sentencing discrepancies in reaching his decision on surrender, especially where the discrepancy is a significant one. [ 62 ] The Minister made a mistake in terminating his analysis at that point and failing to consider the probable sentence that Petitioner would have faced if convicted in Canada for the same conduct. The Minister only considered the maximum penalty and gave no consideration to factors that are taken into account in the Canadian sentencing system.

Had he done so, he may well have concluded that the sentence to be faced by the Petitioner in Canada would be far inferior to the maximum sentence of ten years. [ 63 ] Not having properly considered the disparity of sentences in the two countries is an error that justifies referring the matter back to the Minister for reconsideration. [ 64 ] For these reasons, I propose to allow the appeal for judicial review, set aside the Minister’s decision and refer the matter back to the present Minister of Justice so that she may determine whether an order of surrender should be issued and, if so, for what offence(s).

MARIE-JOSÉE HOGUE, J.A.