R v. MINISTER OF JUSTICE OF CANADA, 2018 QCCA 2124

Kirstein c. Attorney General of Canada (United States of America) 2018 QCCA 2124 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006319-162 , 500-10-006498-172, 500-10-006490-179, 500-10-006527-178, 500-10-006528-176 DATE: 13 DECEMBER 2018 CORAM: THE HONOURABLE JULIE DUTIL, J.A. PATRICK HEALY, J.A. SUZANNE GAGNÉ, J.A. 500-10-006319-162 (500-36-007612-156) CLIFFORD KIRSTEIN APPELLANT - Person Sought v .

THE ATTORNEY GENERAL OF CANADA REPRESENTING THE UNITED STATES OF AMERICA RESPONDENT - Requesting State ____________________________________________________________________ 500-10-006498-172 CLIFFORD KIRSTEIN PETITIONER v. MINISTER OF JUSTICE OF CANADA RESPONDENT _____________________________________________________________________ 500-10-006490-179 MARK EL BERNACHAWY PETITIONER v . MINISTER OF JUSTICE OF CANADA RESPONDENT _____________________________________________________________________ 500-10-006527-178 KELEN BUCHAN PETITIONER v.

MINISTER OF JUSTICE OF CANADA RESPONDENT _____________________________________________________________________ 500-10-006528-176 AQIYL (A.K.A. AGIYL) KAMALDIN PETITIONER

v. MINISTER OF JUSTICE OF CANADA RESPONDENT JUDGMENT [ 1 ] There are five files concerning extradition before the Court. They arise from the same investigation. For this reason they were heard together and they will be resolved together in this judgment. Four of the five persons sought for fraud by the United States (“the requesting state”) were committed to await extradition by the Superior Court. [1] The respondent (“the Minister”) subsequently ordered their unconditional surrender for prosecution. Mr. Kirstein appeals from the committal order and all four ask this court to review the decision of the Minister.

Context [ 2 ] The relevant facts are not contested. The alleged scheme involved telephone calls to family members who were persuaded to transfer money on the false representation that financial assistance would be provided to another member in distress. This type of fraud is widely known as an “Emergency” or “Grandson” Scheme. The victims are typically elderly. In this case there were at least 74 victims in the United States and they were allegedly defrauded of a total of about $495,000.00.

The facts alleged in this scheme were set out in the Record of the Case submitted by the requesting state and a supplemental Record of the Case. In this case the requesting state alleges twenty-five counts of fraud. Mr. Kirstein’s appeal from committal [ 3 ] On appeal from the committal order Mr. Kirstein raises three grounds: the validity of the search warrant, the validity of the authority to proceed and the sufficiency of the evidence. Search warrant [ 4 ] Investigators obtained a warrant to search and seize various items, including cellular telephones.

Neither the information to obtain the warrant nor the warrant specified that among items to be seized was the data contained in any cellular telephone. [ 5 ] The warrant was obtained and issued according to the state of the law after Morelli [2] but before Vu . [3] Morelli underscored the importance of the expectation of privacy in computers and other personal devices but Vu makes clear that, in addition to seizure of the device, there must be a specific authorisation to seize data in a cellular telephone.

It is equally clear, as the extradition judge concluded, that the search and seizure in this case did not conform to the principles expressed in Vu . The appellant claims that the seized data should have been excluded under section 24(2) of the Charter and in accordance with Grant [4] and subsequent jurisprudence. In this case the extradition judge meticulously applied the criteria set out in Grant and, in the absence of clear error, the Court owes deference to his conclusions on this question. [ 6 ] This ground of appeal must fail.

Authority to proceed [ 7 ] In an extradition case the authority to proceed is similar to an information that states the Canadian offence corresponding to the alleged conduct. In this case the corresponding offence is fraud. [5] Mr. Kirstein submits that the authority to proceed cannot be validly issued without the consent of the Attorney General of Canada. [ 8 ] As a general rule the authority to commence proceedings may be delegated to counsel acting for the Attorney General. This principle is codified in

section 24 of the

Interpretation Act . [6] A statute may require, exceptionally, the consent of the Attorney General and such a requirement may be expressed in various ways: “consent of the Attorney General,” “consent in writing of the Attorney General,” or “personal consent in writing of the Attorney General.”

Section 15 of the Extradition Act allows the Minister of Justice to issue an authority to proceed if she is satisfied that the conditions in

section 3 of the Act have been met. Unlike an order of surrender under

section 40 of the Act, the personal consent of the Minister is not a condition for the issuance of an authority to proceed under

section 15 or any relevant treaty. There is thus no exception to the general principle in

section 24 of the

Interpretation Act and there can be no objection to delegation of the Minister’s authority to a responsible law officer acting for her. [7] The appellant argues, in effect, that the issuance of an authority to proceed must be treated in the same way as a direct indictment in a domestic prosecution. There is no basis for this submission and this court will not adopt such an

interpretation of

section 15 of the Act. [ 9 ] This ground of appeal must be rejected. Sufficiency of evidence [ 10 ] The extradition judge reviews the circumstantial evidence implicating Mr. Kirstein in the alleged offences. He describes in detail the evidence identifying the appellant and supporting his participation in the commission of the alleged crimes. [ 11 ] The judge also sets out fully the principles relating to the nature of extradition and the role of the judge.

He notes that in a case of circumstantial evidence the judge must undertake a limited weighing of the evidence to determine whether there is a case to answer, which means sufficient evidence that would allow a reasonable trier of fact to make a finding of guilt. [8] The judge concludes that the evidence presented by the requesting state meets this standard and accordingly commits the persons sought for extradition. The application of the correct legal standard in the evaluation of the evidence requires deference on review and precludes appellate

intervention unless that evaluation is unreasonable in the sense that it reveals palpable and overriding error. Such an error is not akin to a needle in a haystack but a beam in the eye. [9] [ 12 ] There is no such error here and, accordingly, this ground of appeal must fail. Applications for review of the Minister’s decision [ 13 ] All four petitioners seek review of the Minister’s decision. The grounds they advance are formulated variously and there is substantial overlap. [ 14 ]

Section 40 of the Extradition Act and the governing jurisprudence recognise that the Minister has a broad discretion in giving effect to Canada’s obligations with its extradition partners.

A dominant consideration in this respect is the effectiveness of cooperation in transnational law enforcement and respect for the principle of comity between and among nations. [10] In making a decision whether to order surrender, the Minister must take into account relevant circumstances and must consider any submissions advanced by the person sought. [11] There is in this sense a broad duty of fairness that the Minister must observe before making an order to surrender. [12] There is, however, no duty of disclosure that is comparable to that required of prosecutors in domestic criminal prosecutions. [13] [ 15 ] While this discretion is broad, it is also subject to constraints.

Section 44 of the Extradition Act compels the Minister to refuse the surrender of a person sought if to do so would be “unjust or oppressive” in the circumstances. Further, the Minister’s decision to surrender must comply with the Charter, notably sections 6 and 7, and only obliquely

section 12. Here or there? [ 16 ] Extradition of a Canadian citizen or a permanent resident of Canada necessarily implies a reasonable limitation of mobility rights under

section 6 of the Charter. [14] A frequent issue in the exercise of the Minister’s discretion is whether a person sought should be prosecuted in Canada or in the requesting state. Both partners often have well-founded grounds on which to proceed and the determination whether to surrender the person sought or prosecute in Canada is a test not only of the Minister’s discretion but also of international cooperation.

Since Cotroni [15] this determination has been considered in a consistent sequence of cases in the Supreme Court that emphasise the overriding importance of reasonableness in the exercise of the discretion to surrender or prosecute. No single factor is necessarily determinative.

The so-called Cotroni factors include these, as discussed in Lake : - where was the impact of the offence felt or likely to be felt, - which jurisdiction has the greater interest in prosecuting the offence, - which police force played the major role in the development of the case, - which jurisdiction has laid charges, - which jurisdiction is ready to proceed to trial, - where is the evidence located, - whether the evidence is mobile, - the number of accused involved and whether they can be gathered together in one place for trial, - in what jurisdiction were most of the acts in furtherance of the crime committed, - the nationality and residence of the accused, - the severity of the sentence the accused is likely to receive in each jurisdiction. [30] How relevant each of these factors is to the determination of the appropriate jurisdiction for prosecution may vary from case to case.

Nothing in Cotroni suggests that these factors should be given equal weight or precludes a conclusion that a single factor is determinative in a particular case. The list merely identifies some of the factors that will tend to favour either extradition or prosecution in Canada. To instruct prosecutorial authorities on how to decide whether to prosecute would deprive the concept of prosecutorial discretion of all meaning. The responsibility for deciding which factors are determinative lies with the authorities themselves; the list serves simply to highlight the relevant factors.

The exercise of prosecutorial discretion will be interfered with in only the clearest of cases, such as where there is evidence of bad faith or improper motives. Absent such evidence, the infringement of an individual’s s. 6(1) mobility rights upon surrender will not be unjustified merely because the Minister has decided, rather than prosecuting the individual in Canada, to defer to the foreign authorities seeking extradition. [16] [ 17 ] In this case the investigation was led chiefly by Canadian police.

The evidence was collected primarily in Canada and, apart from the alleged victims, the identified witnesses were also in Canada. The persons sought were in Canada and most of the alleged fraudulent acts occurred in Canada. At the same time, however, the effects of the alleged conduct was dominantly in the United States. There were at least 74 victims of the alleged conduct and the losses incurred by them in the approximate amount of $495,000.00 were incurred in the United States. In these circumstances the United States plainly had a substantial interest in the prosecution of this case.

The Minister’s decision to surrender the persons sought was reasonable and could not be described as “unjust or oppressive” within the meaning of

section 44 of the Act. [17] Sentence [ 18 ] The applicants submit that the Minister could not reasonably exercise her discretion to order the surrender of the persons sought without first ascertaining the probable sentence that they might receive if found guilty in the requesting state. She knew that the

maximum sentence for fraud in Canada is fourteen years and she was informed that in the requesting state, depending on variables that are not yet known, the sentence would likely be between 51 and 87 months.

The claimants argue, in effect, that in every case where there is an apparent discrepancy between the probable sentence in the requesting and requested state the Minister is compelled to make inquiries about the likely sentence in both states and, in the events of a marked discrepancy, she should require from the requesting state assurances of a lesser sentence or refuse surrender entirely. [ 19 ] It is, of course, impossible for the Minister to predict with any measure of reliability a probable sentence for fraud in Canada or the requesting state.

There are too many variables that would make such an exercise imponderable and unreliable. As a consequence of this impossibility, such a prediction cannot be stipulated as a necessary condition for the reasonable exercise of the Minister’s discretion to order or refuse surrender.

Moreover, it has been long established in Canadian jurisprudence that the existence of a discrepancy between the sentence that might be imposed in the requesting or requested state is not by itself a sufficient reason to refuse surrender unless there is a clear foundation on which to affirm that the probable sentence in the requesting sentence would shock the conscience of Canadians. To ascertain whether there is such a foundation the Minister may make inquiries, independently or at the request of the persons sought, or the persons sought may make submissions on this point to the Minister.

But there is no rule to the effect that the Minister must make this inquiry in every case. To suggest otherwise would imply that the Court can unilaterally amend

section 44 of the Act. [ 20 ] It was submitted at the hearing of this appeal that in Damgajian [18] the Court recently imposed a requirement upon the Minister to ascertain the probable sentence that would be imposed in the requesting state and the requested state and thus determined that the Minister could not exercise her discretion to surrender reasonably without doing so. In that case it appeared that the persons sought could receive a maximum sentence in Canada of ten years but a sentence of between ten and twenty years in the requesting state.

The Minister did not attempt to ascertain the probable sentence that the person sought would receive in Canada. If he had done so, the information might have revealed a more significant disparity between the probable sentence in the requesting or requested state that could have influenced the Minister’s determination whether surrender would be unjust or oppressive.

The Court said this: [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 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. [ 21 ] In paragraph [58] the Court underscores that its observations about the Minister’s error are particular to “the circumstances of this case.” It will also be noted that the Court specifically says that the error in this instance was the failure to ascertain the probable sentence in Canada rather than the maximum sentence.

The error was significant to the extent that the probable sentence would almost certainly fall well below the maximum provided by law. [ 22 ] The observations in Damgajian are consistent with earlier jurisprudence to the effect that the Minister should consider, among a variety of factors, the likely sentence that the person would receive in the requesting and requested states. They do not suggest that this inquiry is a necessary condition for the reasonable exercise of the Minister’s discretion.

They certainly do not suggest that in the absence of this inquiry, or the response to it, the Minister’s decision will be unreasonable for this reason alone. [ 23 ] The applicants submit that the Minister should have sought assurances from the requesting state that the persons sought would not receive excessive sentences. While the Minister may do so under the Treaty, or must do so where there is a possibility of the death penalty, there is no general obligation to seek assurances in every instance where there is a discrepancy between the sentence that might be imposed in the requesting and requested states.

At most it might be argued that a specific obligation to consider a request for

assurances would arise where there are reasonable grounds to believe that the requesting state would treat the person sought in a manner that would shock the conscience of Canadians. [19] FOR THESE REASONS THE COURT: [ 24 ] DISMISSES Mr. Kirstein’s appeal from the order of committal in the Superior Court; [ 25 ] DISMISSES the applications for review of the Minister’s decision to order the unconditional surrender of the applicants. JULIE DUTIL, J.A. PATRICK HEALY, J.A. SUZANNE GAGNÉ, J.A.

Mtre Marc Labelle LABELLE, CÔTÉ, TABAH & ASSOCIÉS For Clifford Kirstein Mtre Jean Dury ROCK, VLEMINKX, DURY & ASSOCIÉS Mtre Andrée-Anne Blais ADVOCATIS For Mark El Bernachawy Mtre Andrew Barbacki For Kelen Buchan Mtre Steven G. Slimovitch For Aqiyl (A.K.A. Agiyl) Kamaldin Mtre Laurent Brisebois MINISTRY OF JUSTICE OF CANADA For Minister of Justice of Canada Date of hearing: 6 November 2018