IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)

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1 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO) File Number: BETWEEN: SURESH SRISKANDARAJAH and Appellant (Appellant) THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA and THE MINISTER OF JUSTICE and ATTORNEY GENERAL OF ONTARIO Respondents (Respondents) Intervener RESPONDENTS FACTUM (Rule 42 of the Rules of the Supreme Court of Canada) Attorney General of Canada Department of Justice Per Nancy Dennison Per Croft Michaelson 130 King Street West, Suite 3400 Toronto, Ontario M5X 1K6 Telephone: Fax: Counsel for the respondents Myles J. Kirvan Deputy Attorney General of Canada Per Robert Frater 234 Wellington Street, Room 1161 Ottawa, Ontario K1A 0H8 Telephone: Fax: Agent for the respondents

2 2 John Norris & Brydie Bethell Barristers Simcoe Chambers Suite Simcoe Street Toronto, Ontario M5H 4E2 Telephone: Fax: Counsel for the appellant Gowling Lafluer Henderson LLP Per Brian A. Crane, Q.C. Suite Elgin Stret Ottawa, Ontario K1P 1C3 Téléphone : Télécopieur : Agent for the appellant Attorney General of Ontario 720, Bay Street, 10 th floor Toronto, Ontario M5G 2K1 Telephone : Fax : Counsel for the intervener Burke-Roberton Per Robert E. Houston, Q.C. 70, rue Gloucester Ottawa (Ontario) K1R 5J8 Téléphone : Télécopieur : Agent for the intervener

3 i TABLE OF CONTENTS PART I STATEMENT OF FACTS... 1 A. Overview... 1 B. Facts The Extradition Request from the United States The LTTE The F.B.I. s Investigation of the LTTE... 4 a. Sriskandarajah s Assistance to the Senior Procurement Officer of the LTTE... 4 b. Sriskandarajah Assists the LTTE to Launder Money... 5 c. Sriskandarajah Instructs Others on Smuggling Items to the LTTE in Sri Lanka. 6 d. Sriskandarajah s Efforts to Obtain Submarine and Warship Design Software for the LTTE... 7 e. Sriskandarajah Obtains Other Items for the LTTE The Constitutional Challenge and Committal Decision The Minister s Surrender Decision The Court of Appeal s Decision PART II RESPONSE TO THE QUESTIONS IN ISSUE PART III ARGUMENTS A. The Possibility of Prosecution in Canada is Simply One Factor the Minister Must Consider The Principles Established in Cotroni are Well-Settled Law There is No Compelling Reason To Overrule Cotroni B. The Minister Provided the Appellant with Procedural Fairness C. The Minister s Decision is Reasonable PART IV COSTS PART V ORDER SOUGHT PART VI TABLE OF AUTHORITIES PART VII LEGISLATION... 28

4 1 A. OVERVIEW PART I STATEMENT OF FACTS 1. The Appellant, Suresh Sriskandarajah (the Appellant or Sriskandarajah ), is wanted in the United States of America for criminal prosecution in relation to allegations that he provided support and assistance to a terrorist group, the Liberation Tigers of Tamil Eelam ( LTTE ). His extradition hearing was heard together with that of another individual, Piratheepan Nadarajah ( Nadarajah ), who is wanted in the United States of America for prosecution in relation to his alleged involvement in a conspiracy to purchase weapons for the LTTE. 2. The Appellant and Nadarajah were both committed for extradition by the extradition judge, and ordered surrendered by the Minister. On appeal to this Court, they seek to avoid extradition to the United States by arguing that: (1) the corresponding Canadian offences under sections 83.03, and are unconstitutional because they unjustifiably infringe sections 2(b) and 7 of the Charter of Rights and Freedoms; (2) this Court should overturn its previous rulings in U.S.A. v. Cotroni 1, U.S.A. v. Kwok 2, and Lake v. Canada(Minister of Justice) 3 and establish an absolute bar to extradition when a citizen can be prosecuted in Canada for the conduct underlying the extradition request; and, (3) the Minister denied them procedural fairness when, in the absence of any evidence of bad faith, he declined to go behind the exercise of prosecutorial discretion and obtain and disclose the reasons why the relevant prosecutorial authority had decided not to prosecute them in Canada. 3. There is no merit to any of the arguments advanced by the Appellant and Nadarajah. The corresponding Canadian offences do not infringe the Charter, for the reasons set out in the Respondents factum filed in Nadarajah (file no ). The Appellant and Nadarajah have provided no compelling justification for overruling Cotroni, Kwok and Lake. As this Court established in those cases, the fact that the person sought can be prosecuted in Canada is not a determinative factor, but simply one factor for the Minister to consider in deciding whether to order surrender, and the Minister s decision is entitled to substantial deference given its political nature. Furthermore, this Court has repeatedly affirmed that the decision not to prosecute the person sought in Canada is an exercise of prosecutorial discretion. In the absence of evidence 1 [1989] 1 S.C.R (per LaForest J.) 2 [2001] 1 S.C.R [2008] 1 S.C.R. 761

5 2 that the decision was made in bad faith or for an improper purpose, the prosecutor s reasons for declining to prosecute are not subject to disclosure. 4. There is nothing unreasonable in the Minister s decision that the Appellant be prosecuted in the United States. The evidence reveals strong links between Sriskandarajah s conduct and the interests of the United States. 4 Moreover, the Minister complied with the principles of procedural fairness. The Minister disclosed everything that he considered in making his surrender decision, with the exception of privileged material. The fact that the Public Prosecution Service of Canada ( PPSC ) had concluded that prosecution would be more effective in the United States was disclosed to the Appellant. The Minister was not provided with the PPSC s reasons for its conclusion and was under no obligation to obtain and disclose those reasons in the absence of any evidence of bad faith or impropriety. B. FACTS 5. The Respondent accepts as substantially correct the facts set out in the Appellant s factum, except for the facts stated in paragraphs 2-4, 15, and 30. The Respondent emphasizes the facts set out below. 1. The Extradition Request from the United States 6. In a diplomatic note dated October 20, 2006, the Government of the United States of America requested the Appellant's extradition for prosecution. The Appellant is wanted to stand trial in the United States District Court for the Eastern District of New York, for allegedly conspiring to provide material support to a foreign terrorist organization in violation of Title 18, United States, Code, section 2339B. He is also charged with allegedly dealing in the property of a specifically designated terrorist, in violation of Title 50 United States Code, section 1705(b). 7. The Minister issued an Authority to Proceed ( ATP ) on November 6, On October 9, 2007, the Minister issued an amended ATP authorizing the Attorney General of Canada to seek the committal of the Appellant for alleged conduct which corresponds to the Canadian offences of participating in activity of a terrorist group (s.83.13); collecting property 5 4 Court of Appeal Judgment in Sriskandarajah at para. 33, Joint Appellants Record, Vol. I, p Diplomatic Note No. 1060, October 20, 2006, Joint Appellants Record, Vol. II, p Authority to Proceed, dated November 20, 2006, Joint Appellants Record, Vol. II, p. 96

6 3 for the benefit of a terrorist group (s.83.03); and instructing to carry out activity for a terrorist group (s.83.21) The evidence in support of the American's request was in the form of a Record of the Case ( ROC ) 8 and Supplemental ROC. 9 These ROCs were also used in support of a companion request involving Ramanan Mylvaganam ( Mylvaganam ) and Nadarajah. 9. Mylvaganam was alleged to have assisted Sriskandarajah in obtaining submarine design software and dual-use equipment for the benefit of the LTTE. Mylvaganam was committed for extradition for participating in an activity of a terrorist group contrary to s of the Criminal Code and providing, making available, etc. property or services for terrorist purposes contrary to s of the Criminal Code, based on the same ROC in a separate proceeding. Mylvaganam s appeal from committal was dismissed. 10 Mylvaganam has been since been surrendered to the United States and pleaded guilty to the offence of providing material support to a foreign terrorist organization The LTTE 10. The LTTE has been listed as a terrorist group under s of the Criminal Code since April 8, 2006, and as a Foreign Terrorist Organization by the United States State Department since The LTTE was founded in 1976 with the goal of establishing an independent Tamil state in northern Sri Lanka. The LTTE started its armed conflict against the Sri Lankan Government in 1983, and has utilized a guerrilla strategy that often includes acts of terrorism. The LTTE uses illegal methods to raise money, acquire weapons and technology, and publicize its cause. The LTTE relies heavily upon supporters in the United States, Europe, Canada, Australia and elsewhere to raise and launder money, acquire intelligence, and purchase technology and military arms and equipment. 13 The LTTE is notorious for political 7 Authority to Proceed, dated October 9, 2007, Joint Appellants Record, Vol. II, p Record of the Case ( ROC ), dated October 18, 2006, Joint Appellants Record, Vol. II, p Supplemental ROC, dated October 17, 2007, Joint Appellants Record, Vol. II, p United States of America v. Mylvaganam, 2009 ONCA F.B.I. Press Release, dated February 8, 2012, Joint Appellant s Record, Vol. II, p ROC at para. 1(h), Joint Appellants Record, Vol. II, p. 101; P.C ; C. Gaz, 2006.III.1. Regulations Amending the Regulations Establishing a List of Entities ; Court of Appeal Judgement in Sriskandarajah at para. 16, Joint Appellants Record, Vol. 1, p ROC at para. 1(g), Joint Appellants Record, Vol. II, p. 101

7 4 assassinations and for its suicide bombings. Between 1991 and 2006 when the ROC was certified, the LTTE conducted roughly 200 suicide bombings against targets in Sri Lanka killing civilians and children The F.B.I. s Investigation of the LTTE 11. In 1999, the Federal Bureau of Investigation commenced an investigation into the fundraising activities of the LTTE in the United States. The United States utilized confidential witnesses and seized and American bank records. This investigation revealed that the procurement officer for the LTTE used several accounts in the United States to purchase and/or inquire about military arms, unmanned aerial vehicles, submarine design, flight lessons, cell towers, radio controller equipment, global positioning system equipment, short wave radio equipment, radio and satellite equipment, cameras, and computers. These records lead to the Appellant, Mylvaganam and other co-conspirators. It is alleged that they facilitated these transactions for the procurement officer and other co-conspirators. 15 These American s also reveal that the Appellant laundered money for the LTTE in the United States and counselled individuals on how to smuggle goods to the LTTE in Sri Lanka. a. Sriskandarajah s Assistance to the Senior Procurement Officer of the LTTE 12. The s obtained in the United States reveal that in September 2004, Sriskandarajah assisted Thavarajah Pratheepan ( Pratheepan ), a senior arms and technology procurement officer for the LTTE, 16 with the purchase of towers and/or tower-related equipment. 13. In an seized by the United States investigators, dated September 29, 2004, the Appellant told Pratheepan and another co-conspirator, Elil, that we are ready to buy the equipment but that he still needed to hear from them regarding specifics for the towers so that he could order the parts. Images obtained from the Appellant's personal website included several pictures of LTTE-controlled territory in Sri Lanka and included a picture of a giant tower with 14 ROC at para. 1(b), Joint Appellants Record, Vol. II, p Criminal Complaint No M, August 18, 2006, Joint Appellants Record, Vol. II, p. 77; ROC, introduction, Joint Appellants Record, Vol II, p ROC at para. 8(a) Joint Appellants Record, Vol. II, p. 111; Supplemental ROC at para. 3, Joint Appellants Record, Vol. II, p. 125

8 5 satellite dishes. Another in the Appellant s account contained a logo for an organization called NTAB. The logo consists of the LTTE tiger emblem and satellite dishes The American investigation also revealed that in March 2005, the Appellant again assisted Pratheepan by providing him with a contact for a technician to assist with the LTTE s air traffic radars. The contact was at Raytheon Aircraft Company, a large military contractor. 18 b. Sriskandarajah Assists the LTTE to Launder Money 15. s, bank records and consensually-recorded conversations obtained by American investigators, show that, in March 2005, the Appellant assisted "Castro" (Veerakathi Manivannan, the LTTE's International Communications Secretariat) in laundering $13,500 for the LTTE. This money was laundered through bank accounts in the United States to pay for two tickets from a New York Travel agency. The tickets were for two individuals to travel to LTTEcontrolled territory in Sri Lanka. 19 The money was allegedly laundered with the assistance of Murugesu Vinayagamoorthy ( Moorthy ), Namasivaya Viswanathan, Thirukumaran Sivasubramaniam and Thirukumaran Sinnathamby. 16. The records reveal that, on March 21, 2005, Viswanathan sent the ticket details together with the travel agency s bank account number at JPMorgan Chase, Queens, New York via to Moorthy. Moorthy then sent this information to Castro. 17. On March 24 and 27, 2005, Moorthy ed Castro about the need to transfer funds to pay for the tickets, and requested that Castro provide Viswanathan with the particulars of the money transfer. On March 28, 2005, the Appellant ed Viswanathan explaining that the money had been deposited: $7,150 from California and $6,000 from Seattle. The Appellant added, They will both fax you right now. Viswanathan then received, by fax, copies of wire transfer requests from Sivasubramaniam and Sinnathamby. The money was not sent directly to ROC at para. 8(a), Joint Appellants Record, Vol. II, p. 111; See also Court of Appeal Judgment in Sriskandarajah at paras. 13(2) and (3) and 21, Joint Appellant s Record, Vol. I, pp ROC at para. 8(b), Joint Appellants Record, Vol. II, p. 111: See also Court of Appeal Judgment in Sriskandarajah at paras. 13(4) and 21, Joint Appellant s Record, Vol. I, p ROC at para. 9(a), Joint Appellants Record, Vol. II, p. 116; Criminal Complaint, Joint Appellants Record, Vol. II, p. 82 See also Court of Appeal Judgment in Sriskandarajah at paras. 13(5) and 21, Joint Appellant s Record, Vol. I, p ROC at para. 9(c), Joint Appellants Record, Vol. II, p. 116

9 6 the travel agency. Rather, Castro, with the assistance of the Appellant, diverted the funds through two American bank accounts: Sinnathamby wired $7,150 from his bank account at Wells Fargo; Sivasbramaniam wired $6000 from a Bank of America bank account. Two days later, the Wells Fargo and Bank of America accounts were reimbursed by wire transfers from a UBS bank account in Zurich, Switzerland. On or about August 19, 2006, Moorthy explained to a confidential witness that Castro facilitated the transfer of the money for the tickets through someone in Canada. 21 c. Sriskandarajah Instructs Others on Smuggling Items to the LTTE in Sri Lanka 18. s seized by United States investigators reveal that the Appellant instructed others on how to smuggle goods into the LTTE-controlled territory in Sri Lanka. On or about October 23, 2005, the Appellant ed three students in relation to a trip to Sri Lanka and explained to the students how to smuggle various items, including Spartan compasses, a Java GPS receiver, an RFMD computer boards kit, and laptop computers, past Sri Lankan Army officials. The Appellant instructed the students that once they got to the Tigers checkpoint, they were to tell them that Waterloo Suresh sent them. He further instructed the students that they were to then go to a specific location and to tell them waterloo Suresh sent you and you need to see Elil. 22 [The Appellant, Suresh Sriskandarajah, lived in Waterloo and attended the University of Waterloo at this time. 23 ] The Appellant indicated that he needed to know that the goods arrived safely. He emphasized the importance of keeping the equipment safe, and the information confidential. 24 He specifically instructed the students to delete the after reading it ROC at para. 9, Joint Appellants Record, Vol. II, pp ROC at para. 8(g), Joint Appellants Record, Vol. II, p. 116; See also Court of Appeal Judgment in Sriskandarajah at paras. 13(6) and 21, Joint Appellant s Record, Vol. I, p ROC at para. 8, Joint Appellants Record, Vol. II, p ROC at para. 8(g), Joint Appellants Record, Vol. II, pp ROC at para. 8 (g), Joint Appellants Record, Vol. II, p. 114; Criminal Complaint, Joint Appellants Record, Vol. II, pp

10 7 d. Sriskandarajah s Efforts to Obtain Submarine and Warship Design Software for the LTTE 19. s seized by American investigators also reveal that Sriskandarajah and Mylvaganam facilitated the purchase of approximately $22,000 worth of submarine and warship 26 design software from a U.K. company, GRC Ltd, for the benefit of the LTTE. 20. While Mylvaganam dealt with GRC directly, he took his instructions from the Appellant. The Appellant instructed Mylvaganam to tell GRC that the software was required for a fourth year university project that had been sponsored by ATI Technologies. In furtherance of this story, the Appellant provided Mylvaganam with a false purchase order from ATI for 13 different software products The software products that were ordered included: a program that enabled the designer to create a solid model of a marine vehicle; a program that allowed the designer to assess the stability of the submarine and perform dynamic simulations of submarine manoeuvres; a program to analyze the structure of asymmetric submarine pressure hulls; and programs to estimate longitudinal weight distribution during the designing process and to assess the power of a vessel using regression analysis. The total cost for the 13 different products was 11,296 British pounds. The Appellant made arrangements to provide payment to GRC for the requested products. 28 e. Sriskandarajah Obtains Other Items for the LTTE 22. In April 2006, Mylvaganam shipped over $22,000 worth of dual-use equipment to Sriskandarajah, including GPS navigation receivers and radio communication kits. records confirm that the majority of these products were purchased from a company in Los Altos, California. Mylvaganam and co-conspirators originally tried to smuggle this equipment into Canada for Sriskandarajah but they were denied entry. When they re-entered in the United 26 ROC at para. 8 (c)(i), Joint Appellants Record, Vol. II, p. 111 See also Court of Appeal Judgment in Sriskandarajah at paras. 13(7) and 21, Joint Appellant s Record, Vol. I, p ROC at para. 8 (c) (ii) (v), Joint Appellants Record, Vol. II, pp ROC at para. 8 (c) (vii), Joint Appellants Record, Vol. II, p. 113

11 8 States, they told the customs officers that the large quantity of computer chips, GPS equipment and other technology were for a university project Sriskandarajah and Mylvaganam also attempted to purchase night-vision equipment from a company in British Columbia. Mylvaganam again told the company that the products were for a fourth year design project we are doing at our university The Constitutional Challenge and Committal Decision 24. Nadarajah s and Sriskandarajah s extradition hearings were heard together. Nadarajah is wanted in the United States for his involvement in purchasing AK 47s and surface to air missiles from an undercover agent in New York. Nadarajah would have been arrested in the United States along with his co-conspirators but he was denied entry into the United States. 25. The extradition judge dismissed Sriskandarjah s and Nadarajah s constitutional challenge to the corresponding Canadian offences under sections 83.03, and of the Criminal Code. The extradition judge found that ss , and of the Criminal Code which incorporate the definition of terrorist activity in s (1) of the Criminal Code do not violate s. 2(b) or s. 7 of the Charter. 31 On March 9, 2009, the extradition judge ordered the committal of both Sriskandarajah and Nadarajah for the offences set out in the ATP The Minister s Surrender Decision 26. The Minister carefully considered the voluminous submissions made by the Appellant. The Minister then determined that the Appellant's surrender was not contrary to s. 7 of the Charter or s. 44 of the Extradition Act, and that surrendering him would be a justifiable limitation of his s. 6(1) Charter right to remain in Canada. 27. The Minister conducted his own assessment of the factors set out by this Court in Cotroni. He declined to accede to the Appellant s request to provide disclosure of the PPSC s 29 ROC at para. 8 (e), Joint Appellants Record, Vol. II, p. 114; Criminal Complaint, Joint Appellants Record, Vol. II, p. 84; See also Court of Appeal Judgment in Sriskandarajah at paras. 13(9) and 21, Joint Appellant s Record, Vol. I, p ROC at para. 8(d), Joint Appellants Record, Vol. II, pp ; See also Court of Appeal Judgment in Sriskandarajah at paras. 13(8) and 21, Joint Appellant s Record, Vol. I, p Reasons for Committal at para. 43, Joint Appellants Record, Vol. I, p Reasons for Committal at paras , Joint Appellants Record, Vol. I, pp Minister s Decision, Joint Appellants Record, Vol. I, p

12 9 assessment that prosecution in the United States would be more effective. 34 The Minister stated that the principles of procedural fairness did not require him to disclose the reasons behind the PPSC s decision that prosecution in the United States would be more effective. The Minister did not have these reasons when he made his own decision. The Minister noted that the decision whether to prosecute is a matter of prosecutorial discretion. It is reviewable only on very narrow grounds, specifically bad faith, which the Appellant did not allege In coming to the conclusion that the Appellant s surrender was a justifiable limitation of his right to remain in Canada, the Minister stated as follows: While Mr. Sriskandarajah is a Canadian citizen and all of his conduct is alleged to have been committed on Canadian soil, the negative impact of his actions, when considered in concert with the alleged actions of his many co-conspirators, would have been felt in jurisdictions outside of Canada. The evidence summarized in the Record of the Case and Supplementary Record of the Case indicated that since 1999, agents of the United States Federal Bureau of Investigation and other United States law enforcement personnel have been investigating individuals and charitable organizations that allegedly provide material support to the LTTE. It is this investigation which linked Mr. Sriskandarajah to the LTTE and which is the basis of the allegation that Mr. Sriskandarajah was involved in providing material support to the LTTE in the period from September 2004 to April The Canadian investigation of Mr. Sriskandarajah was initiated as a direct result of information received from American authorities. RCMP investigators executed a search warrant at Mr. Sriskandrajah s residence in Waterloo, Ontario on August 21, 2006, and seized numerous computers, compact discs, financial records and other items linking him to the LTTE. The search warrant was obtained by the RCMP as a result of a request made to Canada in accordance with the Treaty between the Government of Canada and the Government of the United States on Mutual Legal Assistance in Criminal Matters. The grounds for the warrant were based on information provided by United States investigators. The United States has developed the case against Mr. Sriskandarajah. Charges have been laid in the United States and the United States is also ready to proceed to trial against him. In Canada no charges have been laid and none are contemplated. Furthermore, with the exception of the Canadian authorities who collected evidence against Mr. Sriskandarajah, all of the of the witnesses who will testify at trial are located 34 Minister s Decision, Joint Appellants Record, Vol. I, pp. 50, Minister s Decision, Joint Appellants Record, Vol. I, p. 50

13 10 in the United States and all of Mr. Sriskandarajah s co-accused have been charged in the United States. 36. In the circumstances of this case, insofar as the investigation was initiated and developed by the American authorities, all of the co-accused have been charged there, and most of the witnesses are located there, it would not in my view be an unjustifiable breach of Mr. Sriskandarajah s section 6 Charter rights to surrender him to face prosecution in the United States The Court of Appeal s Decision 29. The Court of Appeal held that sections 83.03, and of the Criminal Code, which incorporate the definition of terrorist activity in s (1) of the Criminal Code, do not violate sections 2(b), 2(d) and 7 of the Charter. The reasons are discussed in the companion appeals of U.S.A. v. Nadarajah 38 and R v. Khawaja The Appellant s appeal from committal was also dismissed. The Court of Appeal noted that while the evidence against Sriskandarajah was mostly circumstantial, it was extensive. 40 Moreover, the Appellant s committal was amply supported by the evidence The Court of Appeal also concluded that there was nothing unreasonable in the Minister s decision to surrender the Appellant. The Minister complied with the principles of procedural fairness. His refusal to disclose the PPSC s assessment as to why prosecution in the United States was more effective was reasonable as: i) the Minister provided the Appellant with all non-privileged materials that the Minister had before him, including the PPSC s conclusion that prosecution in the United States was preferable; ii) the Minister did not see a copy of the PPSC s assessment; and, iii) the Minister conducted his own independent assessment having regard to all of the material before him, the results of which were set out in his reasons Minister s Decision, Joint Appellants Record, Vol. I, pp Minister s Decision, Joint Appellants Record, Vol. I, pp Court of Appeal Judgment in Nadarajah, Joint Appellants Record, Vol. I, pp Court of Appeal Judgment in Khawaja, Joint Appellants Record, Vol. I, pp Court of Appeal Judgment in Sriakandarajah at para. 21, Joint Appellants Record, Vol. I, p Court of Appeal Judgment in Sriskandarajah at para. 18, Joint Appellants Record, Vol. I, p Court of Appeal Judgment in Sriskandarajah at para. 26, Joint Appellants Record, Vol. I, p. 73

14 The Court of Appeal also found that the evidence revealed strong links between the Appellant s conduct and the interests of the United States, and dismissed the Appellant s argument that there was a highly tenuous link between the Appellant s conduct and the United States. The court below noted that the Minister s assessment of the strength of those interests attracts considerable deference from a reviewing court. The Court of Appeal held that there was no basis to interfere with the Minister s finding that the Appellant s extradition was a justifiable limit of s. 6(1) of the Charter. 43 PART II RESPONSE TO THE QUESTIONS IN ISSUE 33. On November 8, 2011, the Chief Justice stated the following constitutional questions: Do ss , or of the Criminal Code, R.S.C. 1985, c. C-46, which incorporate the definition of terrorist activity in s (1) of the Criminal Code, infringe s. 2(b) of the Canadian Charter of Rights and Freedoms? If so, is the infringement a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? Does ss of the Criminal Code, R. S.C. 1985, c. C-46, which incorporates the definition of terrorist activity in s (1) of the Criminal Code, infringe s. 7 of the Canadian Charter of Rights and Freedoms? If so, is the infringement a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? The Respondents position is that ss , or of the Criminal Code are constitutional. The Respondents adopt and rely upon the submissions set out in the Respondents factum in Nadarajah (34013) on this point. 35. The Appellant, together with Nadarajah, also argues that: (i) this Court should overrule its decision in Cotroni and hold that citizens may not be extradited if it is possible to prosecute them in Canada; (ii) the Appellant was denied procedural fairness when the Minister declined to go behind the exercise of prosecutorial discretion, in the absence of any evidence of bad faith; and, (iii) the Minister s decision was unreasonable. 43 Court of Appeal Judgment in Sriskandarajah at para. 33, Joint Appellants Record, Vol. I, p Order of the Chief Justice stating constitutional questions, Joint Appellant s Record, Vol. II, pp

15 The Respondents position, in answer to this, is: (i) the Appellant has wholly failed to provide any compelling rationale as to why this Court should overrule its well-established jurisprudence, which holds that the possibility of prosecution in Canada is not a determinative factor but simply one factor that the Minister must consider in making the surrender decision; (ii) the Appellant was provided with procedural fairness throughout; and, (iii) the Minister s decision was not unreasonable, but fell within a range of reasonable outcomes and is entitled to deference.

16 13 PART III ARGUMENTS A. THE POSSIBILITY OF PROSECUTION IN CANADA IS SIMPLY ONE FACTOR THE MINISTER MUST CONSIDER 1. The Principles Established in Cotroni are Well-Settled Law 38. The decision to surrender a person for extradition to a foreign state is a function of the Executive, which is essentially political in nature and falls at the extreme legislative end of the continuum of administrative decision making. 45 While extradition is a prima facie infringement of the right to remain in Canada under section 6(1) of the Charter, that infringement can generally be justified as a reasonable limitation under section 1 of the Charter In an unbroken line of extradition cases extending from Cotroni (1989), 47 through Whitley (1994), 48 Kwok (2001) 49 and Lake (2008), 50 this Court has held that the Minister must balance competing considerations in determining if surrender is a justifiable limit of s. 6(1) of the Charter. This is primarily a fact-based balancing exercise that will vary according to the circumstances The Minister is afforded considerable discretion in balancing these factors. Given the Minister s expertise and his obligation to ensure that Canada complies with its international commitment he is in the best position to determine whether the factors weigh in favour of or against extradition. 52 If the Minister has identified the proper test, his conclusion should be upheld by a reviewing court unless it is unreasonable. It is not the reviewing court s role to reassess the relevant factors and substitute its own view for that of the Minister. The court must 45 Idziak, v. Canada (Minister of Justice), [1992] 3 S.C.R. 631 at p. 659 (per Cory J.); Lake, supra at para Lake, supra at para Cotroni, supra 48 Whitley, supra 49 Kwok, supra 50 Lake, supra 51 See also Canada (Justice) v. Fischbacher, [2009] 3 S.C.R. 170 at para. 38 (per Charron J.); Idziak, supra at p. 659; United States of America v. Ferras, [2006] 2 S.C.R. 77 at para. 83; United States of America v. Burns, [2001] 1 S.C.R. 283 at paras. 32 and Lake, supra at para. 41; See also Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 at p. 849 (permclachlin.j.)

17 14 simply determine whether the Minister s decision falls within a range of reasonable outcomes. 53 As recently stated by this Court in Lake, Accordingly, the Minister s assessment of whether the infringement of s. 6(1) is justified rests largely on his decision whether Canada should defer to the interests of the requesting state. This is largely a political decision, not a legal one. The legal threshold for finding it unacceptable is evidence that the decision not to prosecute in Canada was made for improper or arbitrary motives. This leaves room for considerable deference to the Minister s conclusion that the infringement of s. 6(1) is justified. 54 (emphasis added) 41. If the person sought for extradition may also be prosecuted in Canada, the Minister must consider not only the possibility of prosecution in Canada, but also the interest of the foreign state in prosecuting the fugitive on its own territory. the inquiry as to whether a prosecution in Canada is a realistic option is simply one factor that must be considered in the exercise of the Minister s broad discretion. In Cotroni, supra, La Forest J. declined to elevate that factor to a determinative constitutional requirement. Rather, he wrote, at p. 1494: 55 The possibility of prosecution in Canada is, however, simply one of many factors that the Minister must consider in determining if surrender is a justifiable limitation of s. 6(1) of the Charter. It is not a determinative factor, as this Court recognized in Cotroni and reaffirmed in Kwok: A general exception for a Canadian citizen who could be charged in Canada would, in my view, interfere unduly with the objectives of the system of extradition [T]o require judicial examination of each individual case to see which could more effectively and fairly be tried in one country or the other would pose an impossible task and seriously interfere with the workings of the system The Appellant, however, seeks to overturn this well-established body of jurisprudence and elevate domestic prosecution to a determinative constitutional requirement, which would operate as a bar to extradition any time that Canada was capable of prosecuting the person sought. This Court should decline the Appellant s invitation to do so. 53 Lake, supra at para 41; See also Doré v. Barreau du Quebéc, 2012 SCC 12 at paras. 7 and Lake supra at para. 37; See also Doré supra at para Kwok, supra at para Kwok, supra at para. 92

18 15 2. There is No Compelling Reason To Overrule Cotroni 43. The Appellant presents no compelling reason to overrule Cotroni, apart from a statement that the time has come for this Court to reconsider its ruling. Precedents of this Court, however, do not come with a best before date. 44. The decision to overrule a previous decision of this Court is a serious step that is not lightly undertaken. Before embarking on such an undertaking, the Court must be satisfied that there are compelling reasons establishing that the precedent was wrongly decided and should be overruled. The threshold is a high one and, for that reason, departures from precedent are rare The Appellant has wholly failed to provide any compelling justification for overturning Cotroni and, by necessary implication, the more recent decisions of this Court in Kwok and Lake which reaffirmed the principles articulated in Cotroni. There are no compelling reasons advanced by the Appellant establishing that Cotroni, decided by a five member majority with only two dissents, was wrongly decided. The ruling in Cotroni has not been shown to be unworkable or inconsistent with other decisions of this Court. Indeed, the contrary is the case: Cotroni has been consistently followed and applied by this Court. 46. Nor does the mere passage of time warrant revisiting the ruling in Cotroni that extradition is generally a justifiable limit of s. 6(1) of the Charter. In Cotroni, the majority of this Court applied the Oakes test and held that extradition was a proportional response to the pressing and substantial objectives of extradition. The Court was satisfied that: i) extradition was rationally connected to these objectives; ii) it minimally impaired the s. 6(1) Charter rights; and, iii) the salutary benefits of extradition outweigh the deleterious effects. The reasons the Court provided for arriving at that conclusion have not been called into question by virtue of the passage of time. 47. The right of Canadian citizens to remain in Canada has not altered since this Court decided Cotroni. Contrary to the Appellant s assertion, there is no need to revisit the Court s 57 Ontario (Attorney General) v. Fraser, [2011] 2 S.C.R. 3 at paras (per the Chief Justice and Lebel J.) and paras (per Rothstein J.); R. v. Henry, [2005] 3 S.C.R. 609 at paras

19 16 central holding that the infringement that results from extradition lies at the outer edges of the core values sought to be protected by s. 6(1) of the Charter The central thrust of s. 6(1) of the Charter today, as it was when Cotroni was decided, is to protect Canadian citizens against exile and banishment. The narrow wording in the Canadian Bill of Rights 59, the European Convention on Human Rights 60 and other European authorities make it clear that there is a distinction between expulsion and extradition The purpose of extradition is not directed at expelling Canadian citizens, nor does it have that effect. Unlike expulsion, an accused may return to Canada following his or her trial or sentence. Similarly, if a Canadian is convicted in a foreign jurisdiction such as the United States, they may seek to be transferred back to Canada. 62 Extradition is, therefore, not at the core of what s. 6(1) of the Charter seeks to protect against. 63 It wasn t at the time of Cotroni and it isn t now. This interpretation is consistent with Parliament s intent that s. 6(1) of the Charter not be an absolute right or bar to extradition of Canadian citizens The pressing and substantial objectives of extradition are even more important today than when this Court first considered this issue in Cotroni. The majority of this Court in Cotroni described these objectives as follows: 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 Appellant s factum at para Canadian Bill of Rights, R.S.C. 1970, App. III s. 2(a) 60 Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Securing certain Rights and Freedoms other than those already Included in the Convention and in the First Protocol Thereto, European Convention on Human Rights, Article 3, paragraph 1, European Treaty Series, No Cotroni, supra at pp ; See also Council of Europe, Explanatory Report on the forth Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Strasbourg; Cotroni, supra at p. 1482; See also International Transfer of Offenders Act, S.C. 2004, c. 21, ss Cotroni, supra at p Cotroni, supra at p Cotroni, supra at p. 1484; See also Doré, supra at para. 55

20 The Court also noted that in fighting crime, Canada should not confine itself to a parochial and nationalistic concept of community but rather Canada should form part of an emerging world community from which not only benefits but responsibilities flow. 66 Cooperation between countries in fighting crime is even more important now. Today s world has shrunk even further. With the evolution of e-commerce and the wireless internet, criminals can instantaneously communicate with anonymity and commit crimes around the world from the comfort of their own homes, or anywhere there is wireless internet. The investigation of crime is therefore even more difficult than it was in As recognized by this Court in R v. Hape, Transnational crime is a growing problem in the modern world, as people, property and funds move fluidly across national borders. Some of the most costly, exploitive or dangerous crimes are committed on a worldwide scale, unconfined by state boundaries. The investigation and policing of such criminal activities requires cooperation between 67 states. 52. There is nothing irrational in using extradition to achieve these objectives even where a person could be prosecuted for the same acts in Canada. It is consistent with the principle of reciprocity that encourages states to cooperate with one another to combat transnational crime The Appellant argues that Cotroni should be overturned because of the emergence of sweeping claims by foreign states of jurisdiction over the conduct of Canadian citizens within Canadian territory. 69 The Appellant, however, provides no evidentiary foundation to support this bald assertion. Even if he were correct, it would not provide a basis for overturning the decision in Cotroni. The list of factors identified by the Court in Cotroni include factors, such as: where was the impact of the offence likely to be felt; which jurisdiction has the greater interest in prosecuting the offence; where were most of the acts in furtherance of the crime committed; and, what is the nationality of the accused and where does he live. Factors such as these will militate in favour of domestic prosecution in circumstances where a foreign jurisdiction asserts a sweeping claim of jurisdiction over the conduct of citizens in Canada. 54. It is not surprising, though, that in a world with increasing ease of communications, globalization, and transnational crimes, that the same conduct will give rise to jurisdiction to 66 Cotroni, supra at p R v. Hape, [2007] S.C.R. 292 at para Hape, supra at paras. 52 and Appellant s factum at para. 47

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