COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

U.S.A. v. Wakeling,

 

2012 BCCA 397

Date: 20121009

Docket: CA039032

Between:

The Attorney General of Canada on behalf of the United States of America and the Attorney General for British Columbia

Respondents

And

Andrew Gordon Wakeling

Appellant

Between:

The Attorney General of Canada on behalf of the Minister of Justice

Respondent

And

Andrew Wakeling

Applicant

Corrected Judgment: The text of the judgment was corrected at paragraph 40 where a change was made on October 17, 2012;

Before:

The Honourable Mr. Justice Low

The Honourable Mr. Justice Groberman

The Honourable Madam Justice A. MacKenzie

On appeal from:  Supreme Court of British Columbia, 13 May 2011,
(U.S.A. v. Wakeling, Vancouver Docket No. 25260); and
Minister of Justice, 20 October 2011, (Wakeling v. Canada (Minister of Justice))

Counsel for the Appellant:

G.P. DelBigio, Q.C.

Counsel for the Respondent
Attorney General of Canada:

W.P. Riley & K.L. Swift

Counsel for the Intervenor
Attorney General of British Columbia:

M.J. DeWitt-Van Oosten, Q.C.

Place and Date of Hearing:

Vancouver, British Columbia

May 31 and June 1, 2012

Place and Date of Judgment:

Vancouver, British Columbia

October 9, 2012

Written Reasons by:

The Honourable Mr. Justice Low

Concurred in by:

The Honourable Mr. Justice Groberman
The Honourable Madam Justice MacKenzie


 

Reasons for Judgment of the Honourable Mr. Justice Low:

[1]             Mr. Wakeling appeals an extradition order of committal made by Madam Justice Ross on 13 May 2011.  Mr. Wakeling is wanted in the United States for prosecution for certain drug offences.  

[2]             He also seeks a judicial review under s. 57 of the Extradition Act, S.C. 1999, c. 18, of an order of surrender made by the Minister of Justice of Canada on 20 October 2011.

Extradition order

[3]             The extradition judge concisely stated the constitutional issue raised by Mr. Wakeling in an application he brought in the extradition proceeding for inter alia an order that his Charter rights had been violated (my emphasis):

[1]        The United States of America has requested extradition of the applicant Andrew Gordon Wakeling so that he may be tried on drug related offences in the state of Minnesota. It is alleged that Mr. Wakeling conspired with others to export drugs from Ontario into Minnesota. Prior to the extradition request being made, Canadian authorities had conducted a criminal investigation against Mr. Wakeling and others. The investigation was in relation to the conduct which is the subject of the present extradition request. As part of the Canadian investigation, judicial authorizations were granted to intercept Mr. Wakeling's private communications and his private communications were in fact intercepted. Canadian authorities transmitted information concerning Mr. Wakeling's intercepted private communications to the requesting state. He was arrested and charged with drug related offences in Canada; however, the Crown withdrew the charges and these extradition proceedings were commenced.

[2]        In this application Mr. Wakeling contends that s. 8(2)(f) of the Privacy Act, R.S.C. 1985, c. P-21 and s. 193(2)(e) of the Criminal Code, R.S.C. 1985, c. C-46, are inconsistent with ss. 7 and 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [Charter]. Mr. Wakeling seeks a declaration that those sections are of no force or effect.

[4]             Mr. Wakeling contends that the extradition judge erred in holding that neither s. 193(2)(e) of the Criminal Code nor s. 8(2)(f) of the Privacy Act, R.S.C. 1985, c. P-21, breaches individual rights under either s. 7 or s. 8 of the Charter.

[5]             Section 193 of the Criminal Code reads (my emphasis): 

(1) Where a private communication has been intercepted by means of an electro-magnetic, acoustic, mechanical or other device without the consent, express or implied, of the originator thereof or of the person intended by the originator thereof to receive it, every one who, without the express consent of the originator thereof or of the person intended by the originator thereof to receive it, wilfully

(a)        uses or discloses the private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof, or

(b)        discloses the existence thereof,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

(2) Subsection (1) does not apply to a person who discloses a private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof or who discloses the existence of a private communication

(a)        in the course of or for the purpose of giving evidence in any civil or criminal proceedings or in any other proceedings in which the person may be required to give evidence on oath;

(b)        in the course of or for the purpose of any criminal investigation if the private communication was lawfully intercepted;

(c)        in giving notice under section 189 or furnishing further particulars pursuant to an order under section 190;

(d)        in the course of the operation of

(i)         a telephone, telegraph or other communication service to the public,

(ii)        a department or an agency of the Government of Canada, or

(iii)       services relating to the management or protection of a computer system, as defined in subsection 342.1(2),

if the disclosure is necessarily incidental to an interception described in paragraph 184(2)(c), (d) or (e);

(e)        where disclosure is made to a peace officer or prosecutor in Canada or to a person or authority with responsibility in a foreign state for the investigation or prosecution of offences and is intended to be in the interests of the administration of justice in Canada or elsewhere; or

(f)         where the disclosure is made to the Director of the Canadian Security Intelligence Service or to an employee of the Service for the purpose of enabling the Service to perform its duties and functions under section 12 of the Canadian Security Intelligence Service Act.

(3) Subsection (1) does not apply to a person who discloses a private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof or who discloses the existence of a private communication where that which is disclosed by him was, prior to the disclosure, lawfully disclosed in the course of or for the purpose of giving evidence in proceedings referred to in paragraph (2)(a).

[6]             The relevant provisions of the Privacy Act are (my emphasis):

7.  Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be used by the institution except

(a) for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose; or

(b) for a purpose for which the information may be disclosed to the institution under subsection 8(2).

8. (1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.

(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed

(a) for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose;

(b) for any purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its disclosure;

...

(f) under an agreement or arrangement between the Government of Canada or an institution thereof and the government of a province, the council of the Westbank First Nation, the council of a participating First Nation — as defined in subsection 2(1) of the First Nations Jurisdiction over Education in British Columbia Act —, the government of a foreign state, an international organization of states or an international organization established by the governments of states, or any institution of any such government or organization, for the purpose of administering or enforcing any law or carrying out a lawful investigation;

[7]             The Charter provisions read:

7.  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.

8.  Everyone has the right to be secure against unreasonable search or seizure.

[8]             Mr. Wakeling does not dispute that the record of the case described available evidence sufficient to support the committal order.  He says, however, that evidence acquired by wiretaps judicially authorized under the applicable provisions of the Criminal Code should have been excluded from consideration on constitutional grounds.  Without that evidence in the record of the case, there would not have been a sufficient evidentiary basis for committal.  He asks this court to declare the statutory provisions unconstitutional and to quash the committal order.  (The parties agreed to ask the judge for a ruling on the constitutional issue without consideration of s. 24(2) of the Charter so, if we were to allow the appeal, we could only order a new extradition hearing as to the appropriate Charter remedy.) 

[9]             On 23 February 2006, a judge in Ontario authorized interception of private communications in connection with a Royal Canadian Mounted Police drug investigation in Thunder Bay.  From 24 March to 3 April 2006, police intercepted telephone conversations between Mr. Wakeling and Rodney Godbout.  The two men discussed transporting “forty-six” to Minneapolis, Minnesota.

[10]         On 5 April 2006, there was a series of calls between Mr. Godbout and Edna Gregoire about “23 packages of steaks” for Stacey Peterson.  On the same day, police officers gave this information to authorities in the United States and United States customs officers at the International Falls, Minnesota border crossing searched a van that Ms. Peterson had driven across the border.  In the van, they found 23 packages containing 46,000 ecstasy pills.

[11]         Ms. Peterson is said to have told United States authorities that she had been recruited by Mr. Godbout as a courier of the ecstasy.  She pleaded guilty to a drug offence in the United States and has agreed to testify about her dealings with Mr. Godbout. 

[12]         Under a second judicial wiretap authorization, on 6 June 2006 police intercepted a telephone conversation in which Mr. Wakeling told Mr. Godbout that “a little bird went canary on us”. 

[13]         The case against Mr. Wakeling is that his initial conversations with Mr. Godbout were about the shipment of the ecstasy subsequently intercepted at the border crossing and that the June conversation was about Ms. Peterson identifying Mr. Godbout to United States authorities as her principal in the transaction.  

[14]         Mr. Wakeling resides in Lillooet, British Columbia.  On 17 April 2007, he was arrested there on charges laid in Kenora, Ontario of trafficking in ecstasy, conspiracy to traffic and exporting the drug to the United States.  Mr. Godbout was similarly charged. 

[15]         On 13 August 2007, the United States requested the extradition of Mr. Wakeling and the Minister of Justice authorized that process on 25 October.  An extradition warrant was issued for his arrest.  The Crown directed a stay of proceedings on the drug charges in Kenora. 

[16]         Extradition proceedings were also taken against Mr. Godbout in Ontario.  He was committed for extradition.  On 7 November 2008 the Minister of Justice ordered his surrender.  A year later, the Ontario Court of Appeal dismissed his application for judicial review of the surrender order.  The court’s reasons are indexed at 2009 ONCA 835.  Those reasons address none of the issues raised in either the appeal or the review application now before us.

[17]         Under s. 22 of the Extradition Act, the extradition proceedings against Mr. Wakeling were transferred to British Columbia.  

[18]         In written reasons filed on 10 February 2011, the extradition judge found that the impugned statutory provisions do not breach any Charter rights.  Her reasons are indexed at 2011 BCSC 165. 

[19]         In a second hearing, the judge gave oral reasons dismissing additional evidentiary applications brought by Mr. Wakeling and committing him for extradition.  Those reasons do not give rise to any issues in this appeal.

[20]         The judge thought it unnecessary to determine the matter under the Privacy Act because the disclosure rules under the Criminal Code are more specific.  In any event she also found that s. 8(2)(f) of the Privacy Act  was not inconsistent with s. 7 or s. 8 of the Charter

[21]         I agree that it was not necessary to consider the constitutional attack on the Privacy Act provisions.  The R.C.M.P. investigators did not send the information to the United States authorities under the provisions of the Privacy Act.  They sent it in accordance with international policing practices with the knowledge that in doing so they were not committing an offence under s. 192 of the Criminal Code.  Therefore the Charter issues fell to be determined only with reference to the Criminal Code provision under attack. 

[22]         I also agree with the extradition judge that the complaint about the constitutionality of s. 193(2)(e) of the Criminal Code concerns the disclosure to a third party of the intercepted communications and engages s. 8 of the Charter, the more specific of the two sections invoked.  The constitutional argument involves a consideration of Mr. Wakeling’s reasonable expectation of privacy and therefore requires a consideration of s. 8 only.  If s. 193(2)(e) unreasonably breaches privacy rights,  that might be a basis for striking the section down for offending s. 8 of the Charter.  If it does not so breach the rights of the individual, it could not be said to offend s. 7 of the Charter.  Therefore the constitutional analysis is properly confined to a consideration of s. 8.  However, I will address the arguments made by Mr. Wakeling that s. 193(2)(e) of the Criminal Code offends s. 7 of the Charter.

[23]         Mr. Wakeling does not assert that the sharing with the external police authority of the information lawfully acquired under the wiretap orders was unconstitutional per se.  He argues that the sharing constituted a second search and should have been found to be constitutionally impermissible in the absence of a second judicial authorization procedure having been included by Parliament in the Criminal Code wiretap provisions.

[24]          After referring to leading cases on the right to privacy such as Hunter et al. v.  Southam Inc., [1984] 2 S.C.R. 145, R. v. Duarte, [1990] 1 S.C.R. 30, and R. v. Evans, [1996] 1 S.C.R. 8, the extradition judge said this: 

[62]      However, in the present case what is at issue is not the original interception of private communications, but their subsequent transmission to law enforcement authorities in the United States. Therefore, the question is whether Mr. Wakeling retained any reasonable expectation of privacy in the communications after they were intercepted pursuant to judicial authorization. In that regard, the jurisprudence is somewhat unsettled.

[25]         The judge then asked herself whether the transmission by the R.C.M.P. of the intercepted communications to the United States authorities amounted to a search for the purposes of s. 8 of the Charter.  She concluded that the answer to that question required an evaluation of “the expectation of privacy that Mr. Wakeling had in the intercepted communications” (para. 67).

[26]         After referring to authorities that discuss whether a person has any residual expectation of privacy with respect to items lawfully seized under a search warrant, the judge concluded, at para. 75, that Mr. Wakeling “retained at best, a modest, close to minimal, expectation of privacy in the lawfully intercepted communications that were lawfully in the possession of the police.”  She went on to say that the sharing of the information was “not conduct that interferes with a reasonable expectation of privacy in the circumstances.”  Therefore, the disclosure did not engage s. 8 of the Charter

[27]         In the event that the sharing of the information did constitute a search under s. 8, the extradition judge discussed at some length the arguments of Mr. Wakeling that the sharing was an unreasonable intrusion into his privacy.  As to s. 7 of the Charter, the judge rejected the assertions that the impugned Criminal Code section was vague and overly broad, that it lacked transparency and accountability, and that it breached the rule of law.  She also noted at para. 133 a passage from R. v. Herrer, [1995] 2 S.C.R. 562, in which McLachlin J. (as she then was), writing for herself and Major J., said at para. 55:

We live in an era when people, goods and information pass from country to country with great rapidity. Law enforcement authorities, if they are to do their job, must apprehend people and intercept goods and communications wherever they may be found. Often they find themselves working with officers in foreign jurisdictions; often they are merely the recipients of information gathered independently elsewhere. The result is evidence gathered by rules which may differ from Canadian rules. We need to accommodate the reality that different countries apply different rules to evidence gathering, rules which must be respected in some measure if we are to retain the ability to prosecute those whose crime and travel take them beyond our borders.

[28]         Mr. Wakeling’s argument on appeal is substantially the same as the argument he made at the extradition hearing.  We have not been made aware of any decided case directly on point. 

[29]         The argument has four components: (1) that disclosure under s. 193(2)(e) of lawfully intercepted communications re-engages s. 8 of the Charter such that the provision should not be found to be constitutionally valid in the absence of a provision in the Criminal Code for prior judicial authorization; (2) that Charter compliance requires a provision in the Criminal Code for disclosure of intercepted private communications to be done in a transparent and accountable manner, and the impugned provision falls short of that requirement; (3) that Charter compliance also requires strict limitations on the use that can be made by the recipient of the disclosed communication; and (4) that the language of the impugned provision is vague and overbroad.  The last three matters are said to engage requirements of fundamental justice under s. 7 of the Charter.

[30]         The Charter issues before us have to be considered in the context of the judicially-established constitutionality of the wiretap provisions of the Criminal Code and the necessity for inter-jurisdictional co-operation in the investigation of suspected criminal conduct.  The overarching question is whether s. 193(2)(e) is reasonable. 

[31]         The wiretap provisions are found in Part VI of the Criminal Code, ss. 183 to 196.  The Charter validity of any particular section or subsection must be considered in the context of the overall legislative scheme. 

[32]         It is an indictable offence to intercept private communications by means of electronic or other devices without consent or without prior judicial authorization.  Such authorization can be given only with respect to certain enumerated serious offences and must be based on reasonable and probable grounds.  Section 185(1)(c) sets out the facts that must be established by affidavit to support the granting of an authorization.  If granted, the authorization is time-limited, subject to renewal.  Interception at the office or residence of a lawyer cannot be approved except in certain limited circumstances.  An authorizing judge can attach “terms and conditions” the judge “considers advisable in the public interest”.  The judge can grant the authorization only if “it would be in the best interests of the administration of justice to do so” and if “other investigative procedures have been tried and have failed or are unlikely to succeed” or in cases of urgency - s. 186(1).  All documents relating to the application for judicial authorization are placed in a sealed packet and kept in the custody of the court. 

[33]         Section 193(1) of the Criminal Code makes it an indictable offence, absent consent, to disclose private communications intercepted by means of an electronic or other device (pursuant to judicial authorization or not), or to disclose the existence of same, all subject to certain exceptions, including that contained in the impugned provision, s. 193(2)(e).  The other exceptions, such as disclosure in legal proceedings, are both obvious and necessary.  In the Charter context, each is a reasonable part of a reasonable legislative scheme. 

[34]         In my opinion, disclosure to other administration of justice officers, domestic and foreign, is an equally obvious and necessary exception without the necessity of further judicial authorization or prior notice. 

[35]         The argument made on behalf of Mr. Wakeling to the contrary is based substantially on broad statements of principle with respect to privacy interests and fundamental justice.  For example, the argument extracts the following from R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442 at para. 51: “There is no doubt as to how crucial the role of the police is to the maintenance of law and order and the security of Canadian society.  But there has always been and will continue to be a concern about the limits of acceptable police action”.  Further, in Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, the Court was concerned with the threat of terrorism and stated at para. 6 that the response to that threat must be guided by the rule of law and “does not call for the abdication of law”.  Other authorities cited were concerned with the necessity for open court proceedings. 

[36]         Citing R. v. Dyment, [1988] 2 S.C.R. 417 at 430, Mr. Wakeling makes the point that “there must be clear rules” to make statutory violation of privacy interests constitutionally valid.  He also cites Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, in which LaForest J. said, in dissent but not on this point, at para. 66 that “certain privacy interests may also inhere in the s. 7 right to life, liberty and security of the person”. He cites various statements by the Court in Hunter about the need to balance the interests of the state and the interests of the individual.  Finally, he quotes Duarte at para. 21, where the Court remarks on the “insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words”. 

[37]         Reliance on the above statements of principle melds the application of s. 7 and s. 8 of the Charter and makes the issue very broad.  Mr. Wakeling contends in his factum at para. 77 that s. 193(2)(e) of the Criminal Code does not meet the standards of protection of individual privacy rights found in Hunter because it “does not sufficiently regulate or control police discretion in relation to the disclosure or transmittal of wiretapped conversations abroad in accordance with constitutional standards”.

[38]         I will first discuss the narrower s. 8 issue. 

[39]         In my opinion, the only ongoing expectation of privacy that Mr. Wakeling enjoyed with respect to the lawfully intercepted private communications is found in s. 193 of the Criminal Code.  He could expect that the interceptions themselves, or the fact of their existence, would not be disclosed except for the legitimate purposes of law enforcement, giving evidence or reporting as mandated by statute.  Any other disclosure by the police would constitute the commission of an indictable offence as well as a breach of Mr. Wakeling’s rights under s. 8 of the Charter.  On the other hand, Mr. Wakeling could not expect that Parliament would protect his arguably conspiratorial criminal conversations from being used in a criminal investigation when and where required for that purpose.  Such an expectation would be unreasonable, manifestly so. 

[40]         I reject the argument that disclosure of the interceptions to the appropriate authorities in the United States amounted to a second search or an extension of the initial lawful electronic search.  The judicial authorization was made by the judge on a finding that it was “in the best interests of the administration of justice to do so” (s. 186(1)(a)) and, therefore, with full knowledge that incriminating evidence recovered would be used “in the interests of the administration of justice in Canada or elsewhere” (s. 193(2)(e)).  It is part of the overall scheme of Part VI of the Criminal Code that the potential scope of the privacy intrusion extends beyond the investigative purposes of the local police unit that makes the application.  There is no need for a second judicial authorization to confirm that which has already been authorized.

[41]         Assuming, but not accepting, that the sharing of the interceptions with the authorities in the United States was a second search or an extension of the lawful electronic search, it is my opinion that s. 193(2)(e), on application of the test set out in Hunter, is a reasonable provision within the legislative scheme.  Support for this conclusion is found in United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469.  In that case, the court was concerned with the Charter (s. 6) mobility rights of Canadian citizens wanted for extradition to the United States for prosecution on drug charges based on alleged conduct that took place only in Canada.  Although made in this different context, the following comments by La Forest J. at p 1485 have application to the present case: 

The investigation, prosecution and suppression of crime for the protection of the citizen and the maintenance of peace and public order is an important goal of all organized societies. The pursuit of that goal cannot realistically be confined within national boundaries. That has long been the case, but it is increasingly evident today. Modern communications have shrunk the world and made McLuhan's global village a reality. The only respect paid by the international criminal community to national boundaries is when these can serve as a means to frustrate the efforts of law enforcement and judicial authorities. The trafficking in drugs, with which we are here concerned, is an international enterprise and requires effective tools of international cooperation for its investigation, prosecution and suppression.

...

What is more, I do not think that the free and democratic society that is Canada, any more than any other modern society, should today confine itself to parochial and nationalistic concepts of community. Canadians today form part of an emerging world community from which not only benefits but responsibilities flow. This is consistent with the approach taken by this Court in Libman v. the Queen, supra, at p. 214, where after stating that we should not be indifferent to the protection of the public in other countries, I added, at p. 214:

In a shrinking world, we are all our brother's keepers. In the criminal arena this is underlined by the international cooperative schemes that have been developed among national law enforcement bodies.

In a similar vein, Lord Salmon in Director of Public Prosecutions v. Doot, [1973] A.C. 807, in a passage (at p. 834) cited with approval in Libman v. The Queen, at pp. 197-98, stated:

I do not believe that any civilised country, even assuming that its own laws do not recognize conspiracy as a criminal offence, could today have any reasonable objection to its nationals being arrested, tried and convicted by English courts in the circumstances to which I have referred. Today, crime is an international problem -- perhaps not least crimes connected with the illicit drug traffic -- and there is a great deal of cooperation between the nations to bring criminals to justice. Great care also is taken by most countries to do nothing which might help their own nationals to commit what would be crimes in other countries: see, for example, section 3(2) of the Dangerous Drugs Act 1965.

[42]         Section 193(2)(e) does not breach s. 8 of the Charter.  

[43]         In my opinion, there is no merit in the s. 7 fundamental justice submissions made on Mr. Wakeling’s behalf.  The impugned provision does not have to be transparent by requiring prior notice and there is no need for a reporting requirement of some sort after the fact.  The information gathered by lawful electronic interception becomes law enforcement intelligence.  In my opinion, it is no different than information obtained from a police informer or information contained in documents that lawfully come into the hands of the police.  If disclosure is in the interests of the administration of justice, there is no need for prior judicial approval or for notice or for reporting.  Such requirements would formalize and hamper the inter-jurisdictional investigation of crime and sometimes the prevention of crime.  Control of the use of lawfully-gathered police intelligence by foreign authorities is not practical and would be presumptuous.  What is practical and necessary for both crime detection and crime prevention is the ability of police officers to lawfully inform their counterparts in other jurisdictions about impending criminal activity, as occurred in the present case, or past criminal activity.    

[44]         I do not find the wording of s. 193(2)(e) to be vague or overbroad.  The administration of justice is a concept that is well understood and needs no clarification or narrowing.

[45]         Section 193(2)(e) does not breach s. 7 of the Charter

[46]         I find it unnecessary to discuss the point made by the respondent that the appellant is asking the court to criminalize conduct that Parliament has not seen fit to criminalize. 

Surrender order

[47]         The next step in the extradition process was for the Minister to consider whether to make an order under ss. 58 and 60 of the Extradition Act for surrender of Mr. Wakeling to United States authorities. 

[48]         The Minister received written submissions from counsel for Mr. Wakeling.  On 20 October 2011 he made the surrender order. 

[49]         On this application for judicial review of that order under s. 57 of the Extradition Act, Mr. Wakeling contends that the Minister erred in his interpretation of the rule of specialty amounting to an abuse of Mr. Wakeling’s rights under s. 6 and s. 7 of the Charter; that the Minister abused Canada’s extradition powers by ordering surrender rather than preferring prosecution of the drug offences in Ontario; that the Minister erred in not ordering disclosure of the process and the criteria for preferring extradition over domestic prosecution; that the Minister unlawfully refused Mr. Wakeling an oral hearing; and that the Minister acted unlawfully in failing to find that surrender would violate Mr. Wakeling’s rights under s. 6 and s. 7 of the Charter.  The last point is said to be an outcome of the cumulative effect of the other errors made by the Minister in exercising his discretion to order surrender.  

[50]         In my opinion, none of these submissions has merit.  The surrender order does not offend s. 7 and is a reasonable interference with Mr. Wakeling’s mobility rights under s. 6.

[51]         In his reasons for ordering surrender as set out in a letter to Mr. Wakeling’s counsel dated 20 October 2011, the Minister said this about the rule of specialty: 

Rule of Specialty

In the event that Mr. Wakeling’s surrender is ordered, you request confirmation that I will enforce the rule of specialty.

By virtue of Article 12(1) of the Treaty, Mr. Wakeling will, if surrendered, enjoy the protection of specialty.  Without the consent of the Government of Canada, the United States cannot prosecute or impose a sentence on Mr. Wakeling for any offences other than those for which I order his surrender.

Accordingly, I am of the view that nothing further is required to enforce specialty.

[52]         The rule of specialty is an express term of the governing extradition treaty between Canada and the United States.  There is no specific requirement in law that the Minister confirm that he will enforce the rule.  In the unlikely event that the rule is breached by the requesting state, Mr. Wakeling will have resort to legal remedy in either this country or in the requesting state.  There is no requirement for the Minister to give the assurances sought.  He is entitled to expect that the United States will honour its treaty obligation.  

[53]         The Minister gave fairly extensive reasons for refusing disclosure sought with respect to the decision to enter a stay of proceedings of the Ontario charges and to prefer extradition to domestic prosecution. 

[54]         In his submission to the Minister, Mr. Wakeling asserted that the disclosure he sought was necessary for his argument that extradition in his case was “an improper and abusive use of extradition powers”.  However, Mr. Wakeling has not demonstrated how that might be so.  It was necessary for the Minister to respond appropriately to the request for extradition in accordance with this country’s treaty obligations.  He did so.  After committal, it was necessary for the Minister to consider whether extradition should be preferred to domestic prosecution. 

[55]         Mr. Wakeling has made no persuasive argument that there was any disclosure not granted that might have been relevant to his submissions on this issue.  He has not shown that the Minister’s reasons for refusing the request for disclosure involved an improper application of the law or were otherwise defective in any way. 

[56]         Mr. Wakeling submitted to the Minister that the discretionary decision of Canadian prosecuting authorities to prefer extradition was “an improper and abusive use of extradition powers”.  Section 44(1) of the Extradition Act requires the Minister to refuse surrender if surrender would be “unjust or oppressive having regard to all the relevant circumstances”.  The Minister rejected this argument and his reasons for doing so are unimpeachable. 

[57]         As to the submission that domestic prosecution would have been equally effective, the Minister considered and applied the factors set out in Cotroni to decide whether extradition would be contrary to the principles of fundamental justice or would unjustifiably violate Mr. Wakeling’s mobility rights.  It has not been shown that the Minister improperly exercised his discretion in this respect. 

[58]         The Minister refused Mr. Wakeling’s request for an oral hearing.  It is said that the Minister erred because an evidentiary hearing was required, to quote from the appellant’s factum, “in the particular circumstances of this case”.  The factum does not say what those particular circumstances were and this argument did not improve at the oral hearing. 

[59]         There is no requirement for an oral hearing.  It was not unreasonable for the Minister to decline the request.  This is not an unusual extradition case.  If we were to require the Minister to conduct an oral hearing in this case, it is difficult to see how that would not stand as a precedent for requiring an oral hearing, if requested, in every case.

Conclusion

[60]         I would dismiss the appeal of the extradition order.

[61]         I would dismiss the application for judicial review of the surrender order.

“The Honourable Mr. Justice Low”

I agree:

“The Honourable Mr. Justice Groberman”

I agree:

“The Honourable Madam Justice A. MacKenzie”