USA v. Gillingham Date:, 2003 BCSC 470

Citation: USA v. Gillingham Date: 20030327 2003 BCSC 470 Docket: No. CC010195 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: UNITED STATES OF AMERICA AND: RICHARD WAYNE GILLINGHAM REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE ALLAN Counsel for the United States of America: William Y.W. Loo Appearing on his own behalf: Richard Wayne Gillingham Date and Place of Hearing: February 13, 14 and 21, 2003 Vancouver, B.C. The applications: [ 1 ] Two applications were brought in this extradition proceeding: the USA’s application to revoke Mr. Gillingham’s bail and Mr.

Gillingham’s application for habeas corpus. [ 2 ] Mr. Loo submits that Mr. Gillingham’s extradition proceedings are governed by the old Extradition Act , R.S.C. 1985, c. E-23 which did not make any statutory provision for judicial release awaiting committal or surrender. However, it is common ground that in proceedings under that Act , the Court has inherent jurisdiction to grant bail to a fugitive who has been committed and is awaiting the Minister’s decision on surrender. The USA submits that Mr.

Gillingham should be detained on grounds analogous to the primary, secondary and tertiary grounds outlined in s. 515(10) of the Criminal Code .

Section 524 provides that if the Court is satisfied that Mr. Gillingham contravened the terms of his recognizance, then the onus is upon him to justify his release. Background: [ 3 ] In August 1993, in Montana, Mr. Gillingham pleaded guilty to four counts of sexual assault and one count of assault in relation to children. Pursuant to a plea agreement, he was given five ten-year sentences to be served consecutively.

The sentences were suspended on certain conditions, including the following: • he have no unsupervised contact with children under the age of 16 years; • he undertake no employment, service or recreational pursuits involving supervision of children under 16 years of age; • he hold no positions of power or authority over children, including volunteer work; • he return to Canada to face similar charges pending; and • he never return to the U.S. [ 4 ] Mr. Gillingham was deported and in November 1993, he pleaded guilty in Chilliwack to committing two counts of sexual assault involving young children in 1988.

He was sentenced to two years imprisonment and three years probation. One of the terms of his probation was that he have no unsupervised contact with children under the age of 16 years. [ 5 ] In November 1997, contrary to the terms of his probation orders, he taught Sunday school in Summerland to children between the ages of 7 and 9. He was not supervised. He also assisted in a woodworking exhibit in Summerland, where he had unsupervised contact with children under 16 years of age.

On March 3, 1998, he pleaded guilty to two counts of breaching the B.C. probation order and an Ottawa probation order arising from a conviction there in 1997 for impersonation. He was sentenced to two concurrent terms of five months imprisonment and three years probation.

[ 6 ] Mr. Gillingham advised this Court that he was innocent of all of the offences for which he was convicted in Montana and B.C. and that he pleaded guilty only because his lawyers told him that he had to do so. [ 7 ] On July 8, 1996, the State of Montana filed a petition to revoke Mr. Gillingham’s probation on the basis that he had refused to sign an order setting out the rules of probation and a “waiver of extradition” as requested by his probation supervisor in Ottawa. His Canadian probation officer had then reported his refusal to sign it to his probation officer in Montana.

Montana did not proceed with that petition. [ 8 ] On January 16, 1998, a supplemental petition to revoke probation was filed, citing Mr. Gillingham’s probation violations arising from the criminal proceedings against him in Canada. On June 11, 1998, a warrant of apprehension was issued for Mr. Gillingham in Montana alleging that the breaches of the B.C. probation order also breached the Montana probation order. The USA requested Mr. Gillingham’s extradition and he was arrested in B.C. pursuant to the Extradition Act. [ 9 ] On June 16, 1998, Blair J. ordered Mr.

Gillingham’s detention on the primary, secondary and tertiary grounds. [ 10 ] On December 29, 1998, following a committal hearing, Mr. Justice Collver ordered that Mr. Gillingham be committed and, on May 28, 1999, the Minister of Justice (the “Minister”) ordered that he be surrendered to the USA. Mr. Gillingham appealed the committal order and sought judicial review of the Minister’s surrender order. On November 7, 2000, the Court of Appeal dismissed the appeal from committal but allowed the judicial review in part and remitted the matter to the Minister for further consideration. [ 11 ] Mr.

Gillingham appealed the committal order further to the Supreme Court of Canada. On October 17, 2002, that Court remanded the case back to the Court of Appeal for reconsideration on the basis of the reasons in its decisions in United States of America v. Kwok , [2001] 1 S.C.R. 532 , 2001 SCC 18 and United States of America v. Cobb , [2001] 1 S.C.R. 587 , 2001 SCC 19 , including a consideration of Mr. Gillingham’s Charter rights (No. 29065). There has been no reconsideration by the Court of Appeal to date. I will discuss this issue at some length at the end of this judgment. [ 12 ] With respect to Mr.

Gillingham’s request for a judicial review of the Minister’s decision, the Court of Appeal determined that the material disclosed one meritorious ground : The Minister erred in surrendering the Applicant when the conduct that gives rise to the request for extradition has no connection to the United States as it occurred entirely within territorial limits of Canada and has neither effect nor impact upon the United States and therefore surrender violates the Applicant’s rights of citizenship as protected by s. 6 of the Charter. [ 13 ] The Court cited USA v.

Cotroni , 1989 CanLII 106 (SCC) , [1989] 1 S.C.R. 1469 and USA v. Lepine , 1994 CanLII 116 (SCC) , [1994] 1 S.C.R. 286 for the proposition that if there is no harmful impact on the requesting state, a Canadian citizen should not be extradited. It noted that the provision in the Montana order for immediate deportation to Canada and a prohibition against his ever returning to the USA “would seem to result in the United States having no interest in controlling his conduct in this country.” [ 14 ] The Court concluded that improper motives or bad faith on the part of the Canadian authorities in seeking to have Mr.

Gillingham extradited would be a ground for review of the decision to surrender him. Esson J.A. stated at ¶37: In my view, the assertion that the surrender of Mr. Gillingham is tainted by improper motives on the part of Canadian authorities and is based on conduct which has neither effect nor impact upon the United States and, consequently, that it violates his s. 6 rights has about it an air of reality. It follows that the appellant has raised issues worthy of consideration. Unfortunately, those issues were not raised before the Minister with sufficient clarity as to permit their true nature to be recognized.

If the Canadian authorities have acted improperly or if Montana has no legitimate interest in Mr. Gillingham’s return, it is likely that the breach of s. 6 will not be saved under s. 1. As between the extradition judge and the Minister, the issues are properly ones to be considered by the Minister. I am therefore of the view that the proper course is to refer this matter back to the Minister, as we have power to do under s. 25.2(6), to make further investigations and to give such further consideration to the issue defined in para. 21 hereof. As part of the re-examination of this case, Mr.

Gillingham should be given the opportunity to provide the Minister with such evidence as he can of his assertion that Canadian authorities have acted improperly. That evidence should be given consideration by the Minister in examining whether Mr. Gillingham’s Charter rights have been violated. The prior bail and habeas corpus applications: [ 15 ] On February 27, 2001, Mr.

Gillingham applied for bail pending the Minister’s decision, arguing that he should be released so that he could access materials necessary for the preparation of submissions to the Minister and that his elderly mother required him to take care of her. [ 16 ] A number of hearings were held before Madam Justice L. Smith between March 5 and June 28, 2001. She concluded that further detention was not required for the protection or safety of the public or to ensure Mr. Gillingham’s attendance in court so long as sufficiently stringent conditions were in place before his release.

She called for an investigation by the probation authorities to confirm that he could reside with his mother and that there were no children residing in or regularly visiting in the mobile home park where she lived. Subsequently, after being advised that Mrs. Gillingham wished to leave the trailer park for periods of time, Smith J. confirmed that she would not order his release without a plan that satisfied her that the public was going to be protected. [ 17 ] Mrs. Gillingham wrote to the Court asking that her son be allowed to reside with her.

She stated: “I, his mother, will make sure that he obeys all the conditions of his probation.” Ms. Miles, Mr. Gillingham’s bail supervisor, prepared a technical suitability report

that indicated that Mr. Gillingham could be electronically monitored there. [ 18 ] Smith J. released Mr. Gillingham under strict conditions on June 28. Modifications were necessary to permit Mr. Gillingham to go outside the mobile home but stay within the mobile park home and the ambit of the electronic monitoring. The final order, modified by Mr. Justice Taylor on July 6, 2001, included the following terms: CONDITION 1: This recognizance is to be supervised using Electronic Monitoring Program (EMP).

CONDITION 2: You are to report to a Probation Office at #103 – 386 Ellis Street, Penticton, BC by Tuesday, July 03, 2001 upon release, in person, and thereafter as directed and once a week. CONDITION 3: You will reside with your mother at #3 – 8712 Stuart Street, Summerland, BC. CONDITION 4: You will not leave the mobile home park where your mother resides without the prior written permission of your Bail Supervisor. CONDITION 5: You will not leave the Province of British Columbia. CONDITION 6: You will surrender your passport(

s) and travel document(s). CONDITION 7: You will refrain from engaging in any activity that involves contact with persons under the age of sixteen (16) years. CONDITION 8: (

a) You will refrain from attending a public park or public swimming area where persons under the age of sixteen (16) years are present or can reasonably be expected to be present. (

b) You will refrain from attending a day care centre, school ground, playground or community centre at any time. CONDITION 9: (

a) You will not be in the presence of a person under the age of sixteen (16) except in the presence of an adult person approved in writing and in a public place then being frequented by members of the public. (

b) You will not seek, obtain or continue any employment, whether or not the employment is renumerated [sic] and you will not become or be a volunteer in a capacity that involve being in a position of trust or authority towards persons under the age of sixteen (16) years. CONDITION 10: Upon receipt of a letter from Minister ordering your surrender to the United States of America you will forthwith turn yourself in to the RCMP at 8709 Jubilee Road, Summerland, BC. [ 19 ] The provincial Crown also instituted proceedings under s. 810 of the Criminal Code and on August 20, 2001, Mr.

Gillingham apparently entered into a recognizance containing bail terms that essentially mirrored the bail terms in the extradition proceedings. Although Mr. Gillingham disputes the validity of that recognizance, its presence or absence has no effect on these proceedings. [ 20 ] On July 18, 2001, Mr. Gillingham applied to vary his bail to permit him to leave his residence unescorted to pick up his belongings from the North Fraser Pre-trial Centre. Counsel for the USA offered to have the materials delivered to him at the Crown’s expense. However, Mr.

Gillingham pursued his application and Madam Justice Boyd dismissed it. [ 21 ] Because Mr. Gillingham was considered a very high risk to re-offend, his bail supervisor, Ms. Miles, directed that he only leave the mobile park one hour a day if accompanied by his mother. However, she also indicated that she was prepared to approve appropriate alternative person to his mother. In Mr. Gillingham’s opinion, Ms. Miles’ conditions were too onerous and, on September 13, 2001, he applied to remove them. Mr.

Gillingham complained that “my mother was not ordered to be a warden for me.” In his view, the probation authorities lacked the jurisdiction to impose terms on his mother to supervise him. [ 22 ] Mr. Gillingham sought an order that the Court direct his bail supervisor to allow him unsupervised access in the community without restrictions. I heard that application and dismissed it. I stated: The court has no jurisdiction to order the probation office to do anything as you suggest. The court order as modified is clear, and the only role of your mother in the court order is to provide a residence for you.

There is no other onus or responsibility on your mother from the court’s point of view.

The supervision of bail is exclusively within the jurisdiction of the probation office, not the court. It is for the probation office to determine what terms you will leave your residence, etc., and they have said that they will look at people alternative to your mother and the court is not going to interfere with that. [ 23 ] On October 22, 2001, Dohm, A.C.J. dismissed a second application for the same relief. [ 24 ] On April 18, 2002, Ms. Miles met with Mrs. Gillingham who reportedly told her that her living situation was too stressful to continue, she could not meet Mr.

Gillingham’s demands, and she could no longer live with Mr. Gillingham under the conditions imposed by his bail. Mrs. Gillingham told Ms. Miles that Mr. Gillingham had walked outside the trailer park unsupervised on approximately six occasions. Ms. Miles says that Mr. Gillingham admitted those incidents when she confronted him, saying he had not done so many times and he had stopped. Ms. Miles prepared a statement for Mrs. Gillingham to sign but the latter declined to sign it. However, Ms. Miles wrote in her report that Mrs. Gillingham had signed the statement. On April 19, Mrs.

Gillingham repeated the essence of what she had told Ms. Miles to an RCMP officer but again declined to sign a prepared statement. [ 25 ] Ms. Carla Wright, who apparently runs the trailer court for her mother, provided a signed statement to the police that she had seen Mr. Gillingham walk on the road outside the trailer park in April 2002. She had a discussion with him about it and he told her he would not do it again. [ 26 ] On April 19, 2002, Mr. Gillingham was arrested for breaching his recognizance under s. 810 of the Criminal Code . On April 29, 2002, Ms.

Miles confirmed to Crown Counsel in Penticton that the residency situation for Mr. Gillingham no longer existed and the original release order lacked the basis upon which it was made. [ 27 ] Show cause hearings before the provincial court in Penticton for breach of the s. 810 recognizance were adjourned from time to time. On May 2, 2002, he first appeared in this Court in the extradition matter on the USA’s application that his bail be revoked for breaching his recognizance. Mr. Loo advises that between that date and September 30, 2002, the show cause hearing was adjourned 10 times to allow Mr.

Gillingham to prepare a plan for his release. [ 28 ] In a report dated July 4, 2002, Dr. Speth, a psychologist at the Forensic Psychiatric Services Commission, noted that Mr. Gillingham went to great lengths to deny responsibility for his past sexual offences, that he qualifies for a diagnosis of pedophilia, that he has never received sex offender treatment, and that his high risk to re-offend cannot be safely managed in the community, even with the strictest conditions. [ 29 ] On October 10, 2002, Mr. Gillingham applied for habeas corpus on the basis that his present detention is the result of Ms.

Miles’ “improper motives” and is hence illegal. Mr. Gillingham told Mr. Justice Shaw that since 1995 there has been a conspiracy against him between a probation officer in the US and probation officers and bail supervisors in Canada. Shaw J. adjourned the application on the basis that Mr. Gillingham had not filed proper material. [ 30 ] Mr. Gillingham’s application, together with the USA’s application to revoke bail, came before Mr. Justice Davies on October 17. Mr. Gillingham was represented by counsel, Mr. Rankin, who argued the habeas corpus application. Counsel’s instructions included Mr.

Gillingham’s complaints that Ms. Miles put undue psychological stress on his mother by telling her the media would be involved, and that the RCMP would inform the community about the tremendous risk that he represented. He alleged that his mother was forced to be his gaoler. He pointed out that the last sexual offences for which he was convicted occurred in 1988. The living arrangement ordered by Smith J. had fallen through as a result of Ms. Miles’ intervention.

His mother had been pressured and forced into a situation where she could no longer do what she was willing to do had the spirit of Smith J’s order been followed. [ 31 ] Mr. Gillingham’s arguments, which he repeated at length before me, ignore the fact that the order of Smith J. did not allow Mr. Gillingham to leave trailer park without written authority of his bail supervisor . Ms.

Miles was thereby given the authority by the Court to determine the terms upon which he could leave the trailer park. [ 32 ] Davies J. suggested that the habeas corpus issue had been determined by the earlier orders made by this Court. That is, Mr. Gillingham was able to leave the trailer park only with the permission of the bail supervisor and it was within her authority to set appropriate conditions which included being supervised by his mother or another acceptable person.

Davies J. described those conditions as eminently sensible. [ 33 ] After hearing extensive submissions, Davies J. adjourned both the USA’s application to revoke bail and Mr. Gillingham’s habeas corpus application to permit Mr. Gillingham to prepare a suitable release plan. He stated that the plan must be provided in writing to counsel for the USA with full particulars of the intended conditions to enable the USA to seek input from the appropriate correctional authorities. Pending that plan, Mr. Gillingham would remain incarcerated by reason of his breaches of the prior release order.

Davies J. noted that he had heard virtually complete argument on the habeas corpus issue and that it was “highly unlikely” the application could succeed. Whether Mr. Gillingham should be released on bail: [ 34 ] Mr. Gillingham denies breaching the terms of his recognizance. Counsel for the USA provided no sworn evidence of any witnesses to verify the alleged breaches. In my opinion, Ms. Miles’ reports must be considered in the context of her inaccurate notation in them that Mrs. Gillingham had provided a sworn statement to her. [ 35 ] I would characterize the USA’s case that Mr.

Gillingham breached his recognizance as weak. However, that issue is moot. Mr. Gillingham’s bail was effectively revoked by virtue of the fact that the conditions underpinning his release no longer exist. There is evidence that Mrs. Gillingham can no longer share her home with Mr. Gillingham and even Mr. Gillingham does not seriously suggest

that she is willing to do so now. Further, Mr. Gillingham has been unable to put forth a suitable release plan that provides effective supervision to manage his risk level that has consistently been described as “high to re-offend”. [ 36 ] Mr. Gillingham’s extensive past criminal record includes convictions unrelated to these proceedings. In 1986, he was convicted of three counts of abducting a child under the age of 16 and given two years probation.

In 1989, he was convicted of failing to comply with a recognizance after he attempted to contact the victim of the 1986 offences while on bail and given 21 days in jail. In 1997, he was convicted of personation with intent and given a sentence of 30 days and 24 months probation. [ 37 ] On August 17, 2001, a risk assessment prepared by the Community Notification Advisor Program, rated Mr. Gillingham as a high risk offender, whose modus operandi in committing child-related sexual offences was “sophisticated” and “predatory”.

When he was released in 1995, he was classified as an untreated sexual offender considered to be “a high risk to the public on any form of release … a high risk to re-offend in a manner that will cause serious harm.” [ 38 ] The law is clear that bail should be granted to a fugitive after committal only in exceptional circumstances: USA v. Berladyn (December 24, 1992), Vancouver CC880571 (B.C.S.C.); USA v. Ross (July 5, 1993), Vancouver CAO17111 (B.C.C.A.). The onus on the person sought is even higher after surrender has been ordered. [ 39 ] Both Smith J. and Davies J. have told Mr.

Gillingham that he would not procure his interim release pending Ministerial reconsideration in the absence of a plan that satisfies the Court he is sufficiently supervised that he does not pose a danger to young children. He has declined to retain legal counsel on the bail issues on the basis that no-one will help him. Unfortunately, without legal assistance, his chances of developing an acceptable workable plan of release are bleak. [ 40 ] On October 22, 2002, Mr.

Gillingham delivered to the Court a “proposed release plan” seeking his release on his own recognizance on the basis there were no grounds to detain him on the primary, secondary or tertiary grounds. He reviewed his criminal record and the lengthy history of these proceedings. He stated, inter alia, that: I have, for years now, accepted the unreasonable, unjustified and illegal interference in my life by the B.C. courts, probation officers, bail supervisor Cindi Miles, and the Minister of Justice.

However, it is neither fair, nor just, to keep me in jail pending due process of “Canadian” law, prior to my resolving the illegal interference in my life by the Americans. And, no restrictions to my liberty are justified as I have no outstanding charges in Canada. [ 41 ] Mr.

Gillingham had suggested a number of alternate residence options that he could utilize if he were released: • residing at the Men’s Shelter at the Dunsmuir House in Vancouver; • living with a friend in her apartment; • renting a room at the Garfield Hotel in New Westminster; or • residing at one of Kelowna’s halfway houses administered by the Kelowna House Association. [ 42 ] Ms. Miles conducted an investigation of those alternative options in light of criteria suggested by counsel for the USA: adequate supervision by a suitable adult; the feasibility of electronic monitoring; provision for escorting Mr.

Gillingham outside of the residence; the presence of children; and any other factors relevant to the protection or safety of the public. [ 43 ] The first three scenarios were unsuitable for various reasons, including inadequate supervision. The Kelowna House Association may be able to provide adequate supervision; however, the Association would have to charge a per diem rate of $80 - $100 for his accommodation, supervision and escorts. Being without funds, Mr. Gillingham applied to the Provincial Correctional System for assistance.

His application was denied because of current financial restraints and on the basis that this is a federal matter. I suggested that he make an application for funding to the federal authorities and Mr. Loo obtained the name of the appropriate official to contact. It is unlikely that this application will be successful. Ms. Miles has indicated that she believes the Federal Correctional Service may fund individuals who are on parole at half way houses, but not persons on bail. [ 44 ] I am not prepared to release Mr. Gillingham on bail. Whether Mr.

Gillingham should be released on his habeas corpus application: [ 45 ] On October 22, 2002, Mr. Gillingham wrote to Mr. Justice Davies requesting a hearing pursuant to s. 524(3) (

b) of the Criminal Code for a habeas corpus hearing with witnesses. On October 31, 2002, he wrote to the Court Registry seeking to appear before Smith J. with Mr. Yule in attendance for the USA and have his witnesses appear by videoconference to testify as to Ms. Miles’ abuse of her position as his bail supervisor. [ 46 ] When Mr. Gillingham appeared before me on February 13 and 14, he complained that he had not had the opportunity to call witnesses on his habeas corpus application to testify as to what Ms. Miles “did to” his mother.

He indicated that he wished to call a number of witnesses, including his mother, but he was unable to say whether they would be prepared to testify in Court, either in person or by videoconference, or to provide affidavits. I advised him that he could introduce the evidence of the witnesses by way of affidavit but they could be required to attend for cross-examination. The matter was adjourned to February 21 to enable Mr. Gillingham to present a proposal regarding the names of the witnesses he wished to call, their willingness to testify, how they would testify, and the issues upon which they would give evidence.

Mr. Loo indicated that he wished to make submissions on the evidentiary value of the

proposed testimony before any decisions was made to call evidence. [ 47 ] On February 21, Mr. Gillingham declined to address any of the relevant issues. He vented further complaints about Ms. Miles, the courts, the judicial system, and the Ministerial delays. He was adamant that he should have had his witnesses ten months ago and now he must be released in order to prepare his witnesses to testify in his defence. [ 48 ] Mr.

Gillingham’s arguments in support of his habeas corpus application focus upon “the Improper Motives” by civil servants and his inability to obtain documents in the possession of probation officers’ files that he feels would assist his case. That submission appears to rest on the doomed proposition that his bail supervisor had no authority to impose conditions or restrictions on his movements outside the trailer park. As that argument cannot succeed, it would not assist Mr. Gillingham to call witnesses to testify regarding Ms. Miles “improper motives”. [ 49 ] Mr.

Gillingham’s habeas corpus application is dismissed. The status of Mr. Gillingham’s appeal from the committal order of Collver J.: [ 50 ] In my opinion, Mr. Gillingham’s only potential remedy lies in a rehearing of his appeal from committal. [ 51 ] The Court of Appeal dismissed Mr. Gillingham’s appeal from Collver J.’s committal order on the basis of the law as it then stood. Esson J.A. for the Court noted that the extradition judge had relied on Schmidt v. The Queen , 1987 CanLII 48 (SCC) , [1987] 1 S.C.R. 500 in declining to consider Mr.

Gillingham’s submissions regarding double jeopardy, res judicata, and his rights protected by s. 6(1), 7 and 11(

h) of the Charter . In Schmidt , the Supreme Court of Canada had held that an extradition judge, whose role was essentially that of a judge presiding at a preliminary inquiry, had no authority to rule on potential defences or Charter issues. [ 52 ] The decisions of the Ontario Court of Appeal in Kwok v. U.S.A. (1988), 1998 CanLII 6409 (ON CA) , 127 C.C.C. (3d) 353 and Cobb and Grossman v. U.S.A. (1999), 1999 CanLII 4319 (ON CA) , 139 C.C.C. (3d) 283 held that 1992 amendments to the extradition legislation did not broaden the jurisdiction of the extradition judge to consider Charter issues.

Those cases were subsequently overturned by the Supreme Court of Canada but, at the time the Court of Appeal dismissed Mr. Gillingham’s appeal from the committal order, the decisions were still pending. [ 53 ] Accordingly, the Court of Appeal restricted its consideration of the Charter issues raised in Mr. Gillingham’s submissions to a judicial review of the Minister’s decision, and not to his appeal from committal. [ 54 ] When the Supreme Court of Canada remanded Mr. Gillingham’s appeal to the Court of Appeal for reconsideration in October 2002, the implication was clear that further submissions by Mr.

Gillingham could be directed to the committal decision and the issues reconsidered on the basis of the expanded Charter jurisdiction of the extradition judge. The enhanced Charter jurisdiction of the extradition judge: [ 55 ] It may be useful to briefly outline the expanded jurisdiction of the extradition judge. The previous Extradition Act permitted a review of a committal order by way of a writ of habeas corpus to a judge of the Supreme Court. The extradition judge had no Charter jurisdiction and little inherent jurisdiction: Argentina v.

Mellino , 1987 CanLII 49 (SCC) , [1987] 1 S.C.R. 536 . [ 56 ] The jurisdiction of the extradition judge, enhanced by the 1992 amendments, is found in s. 25 of the current Extradition Act : For the purposes of the Constitution Act , 1982 , a judge has, with respect to the functions that the judge is required to perform in applying this Act , the same competence that that judge possesses by virtue of being a superior court judge. [ 57 ] As a result, an extradition court is now a court of competent jurisdiction pursuant to s. 24 of the Charter and has the jurisdiction to give appropriate remedies for pertinent Charter breaches, including stays of proceeding and orders excluding evidence.

However, the scope and breadth of that jurisdiction was unsettled until the Supreme Court of Canada’s decisions in Kwok , supra and Cobb, supra . Extradition judges are also courts of inherent jurisdiction: United States of America v. Dynar, 1997 CanLII 359 (SCC) , [1997] 2 S.C.R. 462 ; Kwok , supra ; and Cobb , supra . [ 58 ] In Cobb , supra , Arbour J. described the Charter jurisdiction of the extradition judge at ¶ 24: This Court has confirmed, in Canada v. Schmidt , 1987 CanLII 48 (SCC) , [1987] 1 S.C.R. 500 , at pp. 520-21 , and again, more recently, in United States v.

Burns , [2001] 1 S.C.R. 283 , 2001 SCC 7 , that the Charter applies to extradition proceedings in the sense that the treaty, the extradition hearing in Canada and the exercise of the executive discretion to surrender the fugitive all have to conform to the requirements of the Charter . The committal judge presides over a judicial hearing and he or she must ensure that the hearing itself is conducted in accordance with the principles of fundamental justice (s.7). [ 59 ]

Section 7 of the Charter states: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 60 ]

Section 7 of the Charter applies to an extradition hearing to ensure that the person sought receives a fair extradition hearing, one that conforms with the principles of fundamental justice.

Section 7 permeates the entire extradition process and is engaged both at

the committal and surrender stages: United States of America v. Shulman , 2001 SCC 21 (CanLII) , [2001] 1 S.C.R. 616 , 2001 S.C.C. 21 at ¶23. [ 61 ] In Cobb , supra , the Supreme Court of Canada confirmed that the extradition judge has jurisdiction pursuant to the Charter and at common law to stay extradition proceedings as an abuse of process where the abuse relates to the committal hearing. The facts in that case were extreme. The trial judge in the USA had threatened to impose the absolute maximum jail sentence permitted by law if the fugitives did not cooperate and go to the USA voluntarily.

The prosecutor assigned to the case appeared on a Canadian television program and threatened that those fugitives who contested their extradition would serve longer sentences under much more stringent conditions, and would “be the boyfriend of a very bad man”. The extradition judge stayed the proceedings on the basis that the conduct of the American officials abused the process of the extradition court. [ 62 ] The Ontario Court of Appeal set aside the stay but the Supreme Court of Canada restored it.

The requesting state had argued that the conduct of the American officials could only relate to the trial in the USA. Because such conduct was not relevant to any issue before the extradition judge, it could not be the subject of any Charter remedy. Arbour J., for the Court, rejected this argument. At ¶33- 35, she stated: The respondent argues that any concern that the appellants may face unfair proceedings in the United States is a matter for the Minister, not for the extradition judge, whose sole function is to assess the sufficiency of the evidence. True as this may be, it misses the real issue here.

The issue at this stage is not whether the appellants will have a fair trial if extradited, but whether they are having a fair extradition hearing in light of the threats and inducements imposed upon them, by those involved in requesting their extradition, to force them to abandon their right to such a hearing. The focus of the fairness issue is thus the hearing in Canada, to which the Charter applies, and not the eventual trial in the U.S., which it may be premature to consider pending the Minister’s decision on surrender.

Conduct by the Requesting State, or by its representatives, agents or officials, which interferes or attempts to interfere with the conduct of judicial proceedings in Canada is a matter that directly concerns the extradition judge.

Section 7 permeates the entire extradition process and is engaged, although for different purposes, at both stages of the proceedings. After committal, if a committal order is issued, the Minister must examine the desirability of surrendering the fugitive in light of many considerations, such as Canada’s international obligations under the applicable treaty and principles of comity, but also including the need to respect the fugitive’s constitutional rights. At the committal stage, the presiding judge must ensure that the committal order, if it is to issue, is the product of a fair judicial process.

The Requesting State is a party to judicial proceedings before a Canadian court and is subject to the application of rules and remedies that serve to control the conduct of parties who turn to the courts for assistance. Even aside from any claim of Charter protection, litigants are protected from unfair, abusive proceedings through the doctrine of abuse of process, which bars litigants – and not only the State – from pursuing frivolous or vexatious proceedings, or otherwise abusing the process of the courts.

The extradition judge’s jurisdiction to order disclosure: [ 63 ] The person sought may also be entitled to disclosure of materials in relation to justiciable Charter issues that properly arise at the extradition hearing if he or she can demonstrate “an air of reality” to the alleged Charter infringement. [ 64 ] In Kwok , supra, the fugitive sought disclosure of the Canadian investigation into his alleged drug trafficking activities and all discussions between Canadian and American investigative and prosecuting authorities.

Kwok sought this disclosure in connection with his argument that surrender to the USA would breach his mobility rights as a Canadian citizen guaranteed under s. 6 of the Charter . The extradition judge dismissed the application for disclosure and committed Kwok for surrender. The Minister also refused to make disclosure and ordered his surrender.

Kwok’s appeal from committal and his application for judicial review of the Minister’s decision to surrender him were dismissed by both the Court of Appeal and the Supreme Court of Canada. [ 65 ] Arbour J. for the Court held that because mobility rights were not engaged at committal stage, the extradition judge had no jurisdiction to grant Charter remedies with respect to alleged violations of s. 6.

Accordingly, Kwok’s disclosure application for disclosure was properly dismissed. [ 66 ] The test as to whether or not disclosure should be ordered is whether or not there is an “air of reality” to the basis for which disclosure is sought. [ 67 ] In United States of America v. Licht (2002), 163 C.C.C. (3d) 372 , 2002 BCSC 299 the applicant sought disclosure of information from the RCMP relating to its involvement in an investigation of him by the U.S.

Drug Enforcement Administration utilizing the “reverse sting” technique. [ 68 ] In Licht , there was credible evidence that foreign agents had acted on Canadian soil with the assistance of the RCMP in a reverse sting operation.

Such conduct would be illegal and the evidence of that conduct, upon which the USA sought to rely, could be inadmissible at the extradition hearing. [ 69 ] Accordingly, Dillon J. concluded that there was an air of reality to the proposed abuse of process argument pursuant to s. 7 of the Charter and she ordered disclosure of the requested materials that were in the possession of the R.C.M.P. [ 70 ] At a subsequent hearing, in United States of America v.

Licht , (2002), 168 C.C.C. (3d) 287 , 2002 BCSC 1151 , Dillon J., stayed the extradition proceedings on the basis that the American agents had unlawfully entered Canada to carry on the reverse sting operation

without the consent or knowledge of the RCMP. She held that their conduct was so egregious as to constitute an abuse of process that disentitled the requesting state from the assistance of the court. The disclosure ordered in the previous hearing had been essential to allow Licht to make full answer and defence at the committal hearing. [ 71 ] In

summary, the law appears to be clear that the extradition judge now has jurisdiction to stay the extradition proceedings if there is evidence of an abuse of the Court’s process . While the s. 7 Charter rights of the person sought are engaged at the committal stage, his or her s. 6 rights are not. Where there is an air of reality to a breach of the applicant’s Charter rights, the Court may order disclosure of relevant material. [ 72 ] In this case, Mr. Gillingham’s arguments at the committal hearing and on appeal raised both

section 6 and 7 Charter issues. The Court of Appeal expressed concern that there may well have been inappropriate communications between the Canadian and the US authorities. At ¶ 29-31, Esson J.A. stated: In the course of the hearing in this court, we asked counsel for the requesting state whether he could identify any reason for the request that Mr. Gillingham be returned. He said he could suggest none. Mr. Gillingham, who conducted his own appeal, offered his explanation.

He believes that Canadian correctional or probation authorities have persuaded the Montana authorities to pursue these proceedings in order to relieve the Canadian authorities from having to cope with a troublesome “client.” The record before us includes some evidence consistent with that point of view, e.g., the matter of the probation supervisor in Ottawa acting on behalf of the Montana authorities in seeking Mr. Gillingham’s signature on a piece of paper designed to provide evidence of a purported breach of his obligations along with a waiver of extradition. Mr.

Gillingham asserted that he had obtained through the Freedom of Information legislation a document which tended to prove more directly that the initiative came from Canadian authorities but, as the matter had not been previously raised and as Mr. Yule had no knowledge of the documents, we declined to pursue the matter further. If inappropriate initiatives by Canadian authorities could be established, that might in itself be a ground for refusing surrender. Improper motives or bad faith on the part of authorities can give rise to Charter violations which cannot be justified under s. 1.

In the extradition context, the issue of improper motives and bad faith has been discussed most often in relation to the discretion whether or not to prosecute a fugitive in Canada (emphasis added) [ 73 ] Mr. Gillingham has attempted unsuccessfully to obtain the relevant material through the Freedom of Information Act. It is at least arguable that such communications could ground an abuse of process argument.

Disclosure of those communications may support or disprove that argument. [ 74 ] The Court of Appeal now has original jurisdiction to hear new evidence and order disclosure in an extradition proceeding where it considers such a procedure appropriate. On the other hand, that Court might remit the matter back to this Court to rehear the committal proceeding. An application for disclosure could be made at that time. Conclusion: [ 75 ] To date, the Court of Appeal has not reconsidered Mr. Gillingham’s appeal of the committal order.

An inquiry to the Court of Appeal Registry subsequent to this application revealed that neither party had taken steps to set the matter down for rehearing. That is troubling. It may be that Mr. Gillingham believed that the Court of Appeal would reconsider his committal automatically, without the necessity of him actively taking steps to have the matter reheard. That is not the case.

However, I understand that on March 26, 2003, the Registrar of the Court of Appeal wrote to the parties requesting that they advise that Court as to whether they intend to pursue this matter. [ 76 ] In these lengthy reasons for judgment, I have attempted to summarize the long and complex history of Mr. Gillingham’s extradition process and highlight the reasons why he may wish to pursue his possible remedy in the Court of Appeal. Hopefully, this

summary of the extensive record will assist Mr. Gillingham in any attempts to procure a lawyer or legal aid to pursue an appeal of his committal. In my opinion, it would be essential for Mr. Gillingham to retain counsel to assist him with such an appeal. [ 77 ] After drafting these reasons, on March 26, 2003, I received a copy of a letter from the Department of Justice to the Criminal Registry, advising that “the Minister has decided not to alter his predecessor’s decision ordering Mr.

Gillingham’s surrender to the United States.” Counsel for the USA seeks to make further submissions on the effect of this development on the applications before me. [ 78 ] Counsel have leave to appear before me to make submissions on any outstanding issues. If he prefers, Mr. Gillingham may appear by video-conference. “M.J. Allan, J.” The Honourable Madam Justice M.J. Allan