United States of America v Borle, 2023 ABKB 584

Court of King’s Bench of Alberta Citation: United States of America v Borle, 2023 ABKB 584 Date: 20231017 Docket: 230330383X1 Registry: Edmonton Between: Attorney General of Canada (on behalf of the United States of America) Respondent/Applicant - and - Cyril Borle Applicant/Respondent _______________________________________________________ Reasons for Decision on Extradition Stay Application of the Honourable Justice Eric F. Macklin _______________________________________________________ I.

Introduction [ 1 ] Cyril Borle applies for a stay of an application for his extradition by the Attorney General of Canada (Canada), on behalf of the United States of America (USA), for sex related internet offences allegedly committed by him. Mr. Borle was facing similar charges in Ontario, but those charges have been stayed by the Ontario Crown.

[ 2 ] Mr. Borle argues that an abuse of process has been, or is being, committed by Canada, the Ontario Crown and the USA and he is seeking a stay of the extradition proceeding under ss 7 and 24(1) of the Charter as the only suitable remedy. He has only named Canada as a respondent. However, the allegations of bad faith, improper motives, and breach of the Charter are alleged against the Ontario Crown, who was not added as a party. [ 3 ] Specifically, Mr.

Borle argues that only one inference can be drawn from the timing of the extradition application, having been brought immediately after the Ontario Crown’s decision to stay the Canadian charges: the Ontario Crown wanted to avoid scrutiny for delay under s 11(

b) of the Charter . That delay arose because the Ontario Crown received additional disclosure shortly before the Ontario Court of Justice trial scheduled for April 11-14, 2023 leading to an adjournment of the trial. [ 4 ] The application is denied, and the extradition hearing may proceed. II. The Proceedings [ 5 ] Mr.

Borle was charged in Ontario on a five-count indictment with: invitation to sexual touching contrary to s 152 of the Criminal Code ; luring for the purpose of making child pornography contrary to s 172.1; luring for the purpose of inviting sexual touching contrary to s 172.1; possession of child pornography contrary to s 163.1; and transmitting sexually explicit material to a child contrary to s 171.1. The alleged offences occurred between April 1, 2020 and May 31, 2020. At the material times, Mr.

Borle lived in Ottawa and the only complainant in the Canadian indictment, C.Z., lived with her parents in the State of Pennsylvania. [ 6 ] The Ontario charges were scheduled for trial in the Ontario Court of Justice from April 11-14, 2023. The parties appeared in Trial Management Court on April 4, 2023 to confirm readiness for trial. At that appearance, Mr. Borle applied to adjourn the trial, arguing late disclosure of relevant information by the Crown.

The Crown opposed the adjournment application because it had only recently received the additional information from American authorities and had provided it to the Defence when received. Counsel for Mr. Borle initially advised the Court that he was not waiving s 11(

b) of the Charter . [ 7 ] Following a short adjournment, the Crown advised that counsel for Mr. Borle “is prepared to waive 11(b), and as this is also a clear defence request, and... that this not [sic] disclosure that was previously known to the Crown, the Crown will not oppose the defence application.” The presiding Justice then directed that the waiver of 11(

b) be “marked on the information.” The trial was adjourned. Timeline [ 8 ] The following timeline is relevant: Date May 17, 2020 C.Z.’s mother reports to the Pennsylvania State Police that her daughter had been exchanging intimate images with a man online. March 3, 2021 The American investigation determined that the messages had originated from a hotel in Ottawa, and the Ottawa Police Service was informed. October 8, 2021 The Ottawa police obtained a Canada wide warrant for Mr. Borle in relation to the now jointly conducted Canadian and American investigation.

October 26, 2021 The Information alleging five counts was sworn in Ottawa on October 26, 2021; each count related to the same complainant — C.Z. November 3, 2021 Mr. Borle was arrested and charged with five counts under the Criminal Code involving a single complainant, C.Z. (the Ontario proceedings). March 24, 2022 An arrest warrant was issued for Mr. Borle by the US District Court, Western District of Pennsylvania in relation to six criminal counts involving the production and transmission of images of a minor engaged in sexually explicit conduct. The six counts related to two complainants, C.Z. and another.

March 24, 2023 Ontario Crown provided Counsel for Mr. Borle with late additional disclosure. The trial had been set in the Ontario Court of Justice for April 11-14, 2023. Undated The Deputy Director of the Office of International Affairs, Criminal Division at the US Department of Justice sent a Request for Provisional Arrest of Mr. Borle to the Minister of Justice, Canada. In that request, the USA indicated that the matter was urgent, saying: “Borle is scheduled to go to trial in Canada on April 11, 2023, on charges pertaining to offense conduct similar to that underlying the US charges.

Although currently subject to pretrial release conditions in Canada, BORLE could potentially be released from all release conditions depending upon the outcome of the Canadian prosecution. Due to the nature of the alleged conduct underlying the US charges, BORLE’s release would present a public safety issue.” The USA further committed to seek Mr. Borle’s extradition within 60 days of the date of provisional arrest.

March 30, 2023 Minister of Justice Canada authorized the Attorney General of Canada to apply for a provisional arrest warrant under s 12 of the Extradition Act , SC 1999, c 18 , in response to the request by the USA. April 4, 2023 Mr. Borle applied for an adjournment of the trial because of the late disclosure. Initially, Mr. Borle was not prepared to waive his s 11(

b) Charter rights, but ultimately did so and the Crown did not oppose the adjournment application. The trial was adjourned to set a new date. April 6, 2023 Court of King’s Bench of Alberta issued a provisional warrant for Mr. Borle’s arrest under s 13 of the Extradition Act April 13, 2023 Mr. Borle was advised there was a warrant for his provisional arrest under s 12 of the Extradition Act . He turned himself in and was released on bail the next day. April 20, 2023 Ontario Crown stayed the charges against Mr. Borle.

May 18, 2023 The USA issued a Record of the Case for Prosecution setting out that the USA charges involved two minor complainants, including C.Z. June 29, 2023 A delegate of the Minister of Justice issued an Authority to Proceed under s 15 of the Extradition Act authorizing the Attorney General of Canada to seek an order for committal in the Alberta Court of King’s Bench. July 21, 2023 Mr. Borle filed a Charter application seeking a stay or dismissal of the extradition proceedings arguing a breach of ss 7 and 24(1) of the Charter .

No hearing has yet been scheduled under s 24(1) of the Extradiction Act [ 9 ] Among the documents filed by Mr. Borle is an affidavit sworn by Sean Logue, Esq, an attorney-at-law in Pittsburgh Pennsylvania. He states he has been retained to provide expert evidence on the applicable laws that would apply to Mr. Borle if he is extradited to the Western District of Pennsylvania. Canada opposes the admissibility of Mr. Logue’s affidavit. III. Issues [ 10 ] The three issues are: 1. Is the affidavit of Mr. Logue relevant and admissible? 2. Has there been an abuse of process justifying a stay of Mr.

Borle’s extradition? 3. Is there any basis to grant a stay of the extradition application? IV. Analysis A. Admissibility of Affidavit [ 11 ] At the oral hearing of this application, I advised that Mr. Logue’s affidavit would not be admitted. His expert evidence on the law in the USA about limitation periods, the right to trial in a reasonable period of time, and sentencing is not relevant to these proceedings and has no bearing on whether there has been an abuse of process or breach of the Charter by the Ontario Crown, Canada, or the USA. B.

Abuse of Process Role of Extradition Judge [ 12 ] The role of the extradition judge is limited. Extradition is an expeditious process by which Canada fulfills its international obligations under the Extradition Treaty between Canada and the United States of America , Can. T.S. 1976 No. 3 (am. Can. T.S. 1991 No. 3, Art. VII)) (Treaty) to send persons sought for prosecution by USA.

The process is not a trial and, while Canada must protect the rights of the persons sought, the purpose of extradition is to facilitate a trial on the merits in the country where the person sought is charged. [ 13 ] Extradition under the Extradition Act consists of three phases: • Upon an extradition request, the Minister of Justice decides whether to issue an Authority To Proceed (Authority) authorizing the Attorney General of Canada to seek committal for extradition of the person in question; • If an Authority is issued, the extradition justice decides whether to commit the person; • If the person is committed for extradition, the Minister then decides whether to commit the person. [ 14 ] The Minister has the sole discretion to surrender the person and there are statutory grounds that the Minister must consider in exercising that jurisdiction, including whether surrender would be “unjust and oppressive” ( Extradition Act s 44) and whether surrender would breach s 7 of the Charter by offending the principles of fundamental justice: United States of America v Adam , 2014 BCCA 136 at paras 35 and 39 , leave to appeal ref’d [2014] SCCA No. 258 ; Clarke v Canada (Attorney General) , 2023 SKCA 84 at para 42 .

[15] Pursuant to s 25 of the Extradition Act (formerly s 9(3)), the extradition judge has jurisdiction to grant remedies for Charterbreaches that pertain directly to the circumscribed issues relevant at the committal stage of the extradition process: United States ofAmerica v Kwok, 2001 SCC 18 at para 57. Timing of the Stay and the Extradition Application [16] Mr. Borle seeks an Order staying or dismissing the extradition application under ss 7 and 24(1) of the Charter. Relying on thetimeline of the events set out earlier, he argues that the “only available inference ... is that the stay of proceedings was entered to avoidscrutiny under s 11(

b) of the Charter.” [17] Mr. Borle argues that where there are competing jurisdictions, and one jurisdiction has chosen to exercise its jurisdiction, thatchoice must be made before either jurisdiction lays charges.

Section 5 of the Extradition Act states: 5 A person may be extradited (

a) whether or not the conduct on which the extradition partner bases its request occurred in the territory over which it has jurisdiction;and (

b) whether or not Canada could exercise jurisdiction in similar circumstances. [18] When there is a conflict between jurisdictions, the Treaty provides that where there is a choice of jurisdiction, rather than asharing of jurisdiction, the choice is made at the executive level before either jurisdiction presses charges, and that comity favours anagreement as to where the accused should be prosecuted for a “single transnational offence.”: R v Larche, 2006 SCC 56 at para 67. [19] The Treaty provides that if both states have jurisdiction to prosecute, the “executive authority” of the requested state (theMinister), after consulting with the executive authority of the requesting state, will decide whether to prosecute or extradite.

Mr. Borleargues that the choice was already made when Canada proceeded with the prosecution. [20] Larche is distinguishable. In Larche the Supreme Court was considering the effect of s 725(1)(

c) on sentencing when theaccused was convicted and the offences were transnational. Section 725(1)(

c) permits a sentencing judge to take into account any factsthat form part of the circumstances of the offence that could have been the basis for a separate charge. Here, Mr.

Borle has not been tried or convicted domestically. [21] There are many decisions in which Canadian charges were stayed when the Crown became aware of extradition applications.For example, see: USA v Leon, (SCC), [1996] 1 SCR 888; Whitley v United States of America (1994), (ON CA), 20 OR (3d) 794, 94 CCC (3d) 99 (ON CA); aff'd (SCC), [1996] 1 SCR 467; Canada (AttorneyGeneral) v Godbout, 2009 ONCA 835; R v Thamby, 2010 ONSC 2821, aff’d 2011 ONCA 333; R v Larosa (2002), (ON CA), 163 OAC 108, 166 CCC (3d) 449 (ON CA); United States v Wong, 2015 BCSC 1203 at para 50, aff’d 2017 BCCA 109, leaveto appeal ref’d [2017] SCCA No. 15. [22] The timing of the extradition application and the staying of the domestic charges is not determinative and does not provide abasis for staying the extradition application.

Tactic or Prosecutorial Discretion? [23] Mr. Borle asserts that the Ontario Crown improperly exercised its discretion under s 579 of the Criminal Code by staying thecharges “for the purpose of circumventing their obligations under s. 11(

b) of the Charter, and that they are only permitting the extraditionproceedings to move forward because of their perceived compromised position with respect to s. 11(

b) of the Charter.” That is, heargues, the “only available inference from the timing of the proceedings...is that the stay of proceedings was entered to avoid scrutinyunder

section 11(

b) of the Charter.” [24] This assertion is not supported by any evidence. Rather, the evidence demonstrates that the Ontario Crown would not beconcerned about late disclosure leading to a delay in the trial because Mr. Borle’s counsel waived his s 11(

b) rights as a precursor toOntario Crown consenting to the adjournment request by the defence. [25] There are two types of Crown conduct that can be reviewed by a Court: • exercise of prosecutorial discretion and • tactics or conduct before the Court. Exercises of prosecutorial discretion are reviewable only for abuse of process, but tactics and conduct before the Court may be reviewedmore widely: R v Anderson, 2014 SCC 41 at paras 35-36. [26] Mr.

Borle argues that the Court should review the Crown’s actions as “tactics or conduct before the Court.” He argues thatthe conduct complained of here (passing off the prosecution to the United States when a Charter issue arises) comes within the categoryof “tactics or conduct” and is not owed any deference, citing Anderson at para 59.

The Court in Anderson, however, stated thatdeference is not owed to counsel who behave inappropriately in the courtroom, but that “our adversarial system does accord a highdegree of deference to the tactical decisions of counsel.” [27] The core elements of prosecutorial discretion include the discretion to enter a stay. This is not a question of tactics or conduct;it is an exercise of prosecutorial discretion: Krieger v Law Society of Alberta, 2002 SCC 65 at para 46; Pereira v British Columbia,(Attorney General), 2023 BCCA 31 at paras 32 and 51.

[28] In Anderson, the Court recognized prosecutorial discretion as an expansive term that covers all “decisions regarding thenature and extent of the prosecution and the Attorney General’s participation in it.” Noting that it was likely impossible to create anexhaustive list of examples of prosecutorial discretion, the Court listed several examples in addition to those identified in Krieger:Anderson at para 44. [29] Mr. Borle argues that there is no discretion to breach an accused’s Charter rights and that the Crown’s actions here fall withinthe abuse of process referenced in Anderson at para 45.

At para 49 of Anderson, the Court held that abuse of process may be foundwhere evidence of the Crown’s decision “undermines the integrity of the judicial process” or results in trial unfairness. Improper motivesand bad faith are also relevant. The Court concluded, at para 50, that abuse of process refers to Crown conduct that is egregious andseriously compromises trial fairness and/or the integrity of the justice system. [30] In the alternative, Mr.

Borle argues that if the Court concludes that this was an exercise of prosecutorial discretion, not tacticsand conduct, then he must first prove, on a balance of probabilities, that there was an abuse of process. Relying on Anderson, Mr. Borleasserts that once abuse of process has been established, the onus shifts to the Crown to establish why a particular decision was made. [31] There is a presumption that prosecutorial discretion is exercised in good faith.

This presumption means that an applicant mustestablish an evidentiary foundation before seeking reasons for the Crown’s exercise of discretion and must prove abuse of process on abalance of probabilities. Absent evidence of bad faith or improper motives, the prosecutorial authorities are not obliged to give reasonsfor their decision: Anderson at paras 52, 55. [32] Mr. Borle has led no evidence of bad faith or improper motives, nor any evidence of egregious conduct that compromises trialfairness or the justice system’s integrity. The Defence had waived s 11(

b) rights at the time of the trial adjournment application and thereis no basis for this Court to infer that the Ontario Crown was acting to circumvent the Charter. [33] At that time, the Ontario Crown indicated it was prepared to proceed with the trial. Simply because the Ontario charges werestayed just short of 18 months after they were laid, means nothing. Mr. Borle has led no evidence about what happened between the dateof his arrest and the date the late disclosure was made, so it cannot even be determined whether any portion of the delay may have beencaused by Defence actions. [34] Mr.

Borle has not presented any evidence that the circumstances offend the community’s sense of fair play; nor has he shownthat there is state conduct that provides an air of reality to his allegations: USA v U.S., 2012 BCSC 766 at para 55, aff'd 2013 BCCA483, leave to appeal ref'd (SCC); France v BM, 2020 ABQB 186 at paras 27, 30 and 74. Nexus Between the Two Proceedings? [35] Mr. Borle argues that the Ontario Crown was guilty of misconduct in staying the Ontario charges. There is no connection,however, between the Ontario proceedings and the extradition proceedings.

The Ontario Crown’s conduct, even if it constitutedmisconduct, is the conduct of the Crown in right of Ontario. It has no bearing on the integrity of Canada in fulfilling its obligations underthe Treaty, or the Attorney General of Canada in acting on the authorization of the Minister, or this Court in fulfilling its responsibilitiesunder the Extradition Act or the Charter. [36] In United States v Lane, 2014 ONCA 506, (leave to appeal ref’d [2014] SCCA No 425) the Court set out the situations wherea nexus has been found between the conduct alleged to be an abuse of process and the committal hearing itself.

Those situations includewhere evidence at the committal hearing was obtained by the misconduct of the requesting state: United States of America v Khadr,2011 ONCA 358 (leave to appeal ref’d [2011] SCCA No 316); where threats or inducements are used to coerce the person to abandontheir right to a committal hearing: United States of America v Cobb, 2001 SCC 19, [2001] 1 SCR 587; or where the committal hearingwas itself the result of misconduct by the requesting state: United States of America v Tollman (2006), (ON SC),212 C.C.C. (3d) 511 (ON SupCtJus). [37] The Ontario proceeding was a separate and distinct legal process under the Criminal Code (see United States v Lane, 2014ONCA 506 at para 38-39 for an analogous application). [38] There is no nexus between the Ontario proceedings, conducted by a different embodiment of the Crown in a differentprovince under different legislation, and the extradition proceedings, held in Alberta before an Alberta court and pursued by the AttorneyGeneral of Canada under the Extradition Act.

Conclusion on Abuse of Process [39] There has been no abuse of process by any party to either the Ontario proceeding or this one. C. Stay of the Extradition Application [40] It is not necessary to address the test for staying the extradition application because I have found there was no abuse ofprocess, but I will address the elements of the test as it was addressed by the parties. [41] A stay of proceedings is “the most drastic remedy” available to a Court when assessing abuse of process and must be reservedfor the clearest of cases: R v Babos, 2014 SCC 16 at paras 30, 31.

The conduct complained of must be such that it shocks the conscienceof the community: R v Power, (SCC), [1994] 1 SCR 601 at para 11). [42] In Babos, the Court set out a three-part test to determine when a stay is warranted:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested,

perpetuated or aggravated through the conduct of the trial, or by its outcome”;

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interestsin favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest thatsociety has in having a final decision on the merits”. Babos at para 32. [43] Mr. Borle argues that all three tests are met here:

(1) The integrity of the justice system will be compromised if the extradition proceeds after Canada took carriage of the prosecution andsubjected Mr. Borle to very strict release conditions (those conditions included house arrest, some movement if approved and limited useof, and traceable, smart phones, computers, etc).

(2) There is no alternative remedy that would redress the prejudice but, unlike most stay applications, a stay in this case would only staythe extradition proceedings, requiring the Crown to proceed in their initial choice of forum. Mr. Borle argues that this is not as drastic aremedy as is normally the case with a stay.

(3) The balancing of the interests served by granting a stay with society’s interests in having a decision on the merits favours grantingthe stay because the Crown should be held to their initial choice of forum; the Canadian process could still continue by direct indictmentand a trial in the Superior Court. Staying the Ontario proceedings was not improper [44] It is not uncommon for the Minister to begin extradition proceedings even though there are ongoing domestic criminalproceedings.

If prosecutors exercise their discretion in good faith, there is nothing improper in staying domestic charges: United States of America v Leon, (SCC), [1996] 1 SCR 888: the Crown offered to stay the extradition proceedings ifthe defendant pled guilty. The defendant refused and the Crown stayed the domestic charges and the extradition proceeded. Whitley v United States of America (1994), (ON CA), 20 OR (3d) 794, 94 CCC (3d) 99 (ON CA); aff'd (SCC), [1996] 1 SCR 467: The Attorney General of Canada stayed the Canadian drug charges when it learned the USA was seekingextradition on charges arising from the same facts.

The Court held that the Attorney General of Canada’s exercise of prosecutorialdiscretion did not constitute an abuse of process. Further, there was no Charter breach occasioned by the fact that the USA penalties fordrug offences were more severe. Canada (Attorney General) v Godbout, 2009 ONCA 835: The Crown negotiated a guilty plea to three charges and just beforesentencing, learned that the USA was seeking extradition on one of those charges. The Crown stayed the proceedings on that charge andrenegotiated a plea on the other charges.

The defendant appealed the Minister’s decision to order surrender to the USA on the onecharge. The Court held that the prosecutorial authorities were entitled to stay the Canadian charge and rethink the plea bargain, and thatthe Crown’s conduct in proceeding with the prosecution did not raise any Crown conduct that could possibly constitute an abuse ofprocess. R v Thamby, 2010 ONSC 2821 at para 15; (aff’d 2011 ONCA 333): The Court was faced with similar facts and arguments as here. Theaccused was charged with fraud in both Canada and the USA arising from the same facts. The USA sought to extradite the accused.

TheOntario Crown had negotiated a plea of guilty but on learning that the Authority was issued for the accused’s extradition, she stayed theCanadian charges. The accused argued that the Ontario Crown stayed the charges based on the improper motive of subjecting him tomore severe penalties in the USA.

The Court concluded that there was nothing improper in staying the domestic charges in the absenceof any evidence of improper motive or bad faith. [45] See also R v Larosa (2002), (ON CA), 163 OAC 108, 166 CCC (3d) 449 (ON CA) at para 60; UnitedStates v Wong, 2015 BCSC 1203 at para 50, aff’d 2017 BCCA 109, leave to appeal ref’d [2017] SCCA No. 15. [46] There is no prejudice to Mr. Borle’s right to a fair trial or the integrity of the justice system. There is nothing in the evidencethat establishes, on a balance of probabilities, that there was any bad faith or improper motive in staying the domestic charges here.

TheOntario Crown was entitled to exercise its discretion to stay the charges in favour of extradition. Alternative remedy [47] Mr. Borle asserts there is no alternative remedy to address the prejudice but notes that, in this case, a stay will not end hisprosecution because the Ontario Crown could proceed by direct indictment and the Jordan 30-month time limit at the superior courtwould apply. [48] It bears emphasis that the charges in Canada related to one complainant, whereas the US charges relate to two complainants,one of whom is the complainant in the Canadian charges. Mr.

Borle suggests that both US complainants relate to a single investigation soit would be appropriate for him to be charged in Canada with the offences relating to both complainants and the Crown (presumably theOntario Crown who has not been named here) should be required to do so. [49] I wholly reject this suggestion. It is neither desirable nor proper for a court to tell any Crown what charges to proffer, whichcomplainants to name and how to conduct its prosecution of an alleged offender. Balancing interests

[ 50 ] Mr. Borle further argues that a stay would not impair society’s interest in a final decision on the merits since, as noted above, the Ontario Crown could proceed by direct indictment. [ 51 ] The nature of the alleged offences means that the advantages of staying the extradition do not outweigh the interest in having this matter decided in the USA. The alleged offences are serious – the complainants were just 15 and 16 years old at the time of the offences.

The anticipated evidence speaks to sexually explicit photos of these children in a demeaning and degrading fashion. [ 52 ] In R v Z(MJ), 2022 MBCA 61 , the Court of Appeal refused to grant a stay despite serious state misconduct where a police officer denigrated the accused and was offensive, profane, threatening, and abusive. The seriousness of the charges and society’s interest in having a final decision on the merits favoured proceeding. [ 53 ] If I were required to balance these competing interests, the balance would lie with refusing to grant the stay.

Conclusion on merits of stay application [ 54 ] The Ontario Crown’s exercise of prosecutorial discretion was not motivated by bad faith or improper motive. There is no prejudice to the integrity of the justice system. That is sufficient on its own to conclude that no stay of the extradition application is justified. [ 55 ] Further, even if I were required to balance society’s interests with Mr. Borle’s assertion that the integrity of the justice system requires a stay to denounce misconduct and preserve the integrity of the justice system, a stay is not warranted.

There was no misconduct to denounce and there has been no harm to the integrity of the justice system. V. Conclusion [ 56 ] There was no abuse of process here for the following reasons: (

a) The Ontario Crown was not concerned about the delays in the trial since Defence Counsel waived Mr. Borle’s rights under s 11(

b) and the decision in Jordan ; (

b) The Ontario Crown exercised prosecutorial discretion when staying the charges in Ontario, and doing so was not a question of tactics or conduct before the Court. (

c) Mr. Borle led no evidence to rebut the presumption that the Ontario Crown acted in good faith and with proper motives when it stayed the Canadian charges. Nor did Mr. Borle lead any evidence of egregious conduct that compromised trial fairness or the integrity of the justice system. (

d) There is no nexus or connection between the Ontario Crown’s decision to stay the charges and the extradition proceedings. Extradition was commenced by the United States, and Canada applied for provisional arrest and extradition to fulfill its obligations under the Extradition Act and the Treaty, at the direction of the Attorney General of Canada and Minister of Justice. [ 57 ] Mr. Borle has not established the requirements for a stay. There is no prejudice to his right to a fair trial and the integrity of the justice system will not be compromised by the extradition.

Any advantages to staying the extradition do not outweigh society’s interest in having the matter tried in the USA. [ 58 ] Mr. Borle may raise any Charter concerns at the third step in the process when the Minister decides whether to surrender him to American authorities. This is consistent with the narrow parameters given an extradition judge assigned to hear the committal application. It is unnecessary for me to determine whether I am the extradition judge in this matter. [ 59 ] The application by Mr.

Borle to stay the application for his extradition by the Attorney General of Canada, on behalf of the United States of America, is dismissed. The extradition application can proceed. Heard on the 22 nd day of September, 2023. Dated at the City of Edmonton, Alberta this 17 th day of October, 2023. Eric F. Macklin J.C.K.B.A. Appearances: Cameron M. Regehr and Stephanie Nedoshytko For The Attorney General of Canada

Stacey M. Purser and Cateline T. Joly For Cyril Borle