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International Law - Extradition and criminal mutual legal assistance - Bars to extradition - Abuse of process

Thursday, July 21, 2016 @ 8:00 PM  


Application by Lunn for judicial review of an extradition surrender decision. The applicant, age 68, left Canada in the 1960s and built a successful construction and development business in Boston. Despite amassing significant wealth, the applicant declared personal and corporate bankruptcy in 2001. He blamed his insolvency on his unscrupulous common law partner. According to prosecutors in the United States, the applicant sent up to $4 million back to Canada prior to declaring bankruptcy. In 2006, the United States charged the applicant with offences related to bankruptcy fraud. In 2004, an incident unrelated to the charges underlying the extradition request saw the applicant arrested and charged with smuggling undeclared money into the United States. He returned to Canada in 2005 in breach of a bail condition requiring him to remain in the United States. The applicant remained in Canada thereafter. In 2012, the United States sought the extradition of the applicant. In 2013, Canada issued an authorization to proceed. The applicant was arrested in Nova Scotia in 2014. In 2015, he signed a consent to committal with the intent of opposing surrender. The Minister issued a direction for unconditional surrender. The applicant sought judicial review with further disclosure of materials related to the issue of delay.

HELD: Application dismissed. Aside from privileged legal advice, the applicant had the Minister’s complete file. He was given a reasonable opportunity to state his case. There was no authority for the Minister to make further inquiries into the requesting state’s domestic police practices. The applicant’s contention of state misconduct in the course of the investigation was conjecture that did not warrant the exceptional disclosure sought. The Minister was alive to the issue of delay and determined it was a matter for consideration during any trial in the United States. A significant factor informing the Minister’s decision was that the applicant was a fugitive during the six-year delay after trying to enter the country with undeclared cash and skipping bail. It was safe to infer the charges would have been addressed in timely fashion had the applicant not skipped bail. Although the applicant’s conduct was dispositive of the matter, the merits of the Minister’s decision nonetheless withstood judicial review on the standard of reasonableness. The Minister comprehensively addressed the sufficiency of the particulars of the case, the relative severity of the potential penalty, the reliability of the evidence, the issue of the delay, and the applicant’s health concerns and family obligations. No basis for judicial intervention was established.