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EXTRADITION AND CRIMINAL MUTUAL LEGAL ASSISTANCE - Extraditable offences

Friday, April 28, 2017 @ 9:35 AM  


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Motion by Damgajian for judicial review of the decision by the Minister of Justice (Minister) ordering his surrender for extradition. The United States of America requested Damgajian’s extradition to stand trial on various charges in relation to the importation and distribution of pseudoephedrine in the United States. Pseudoephedrine was a controlled substance listed in Schedule VI of the Controlled Drugs and Substances Act (CDSA). It was commercialized under different names and was used mainly as a decongestant. It was also a precursor to methamphetamine, a substance listed on Schedule I of the CDSA. Damgajian, a citizen of Canada and of the United States, was alleged to have sold and delivered pseudoephedrine through the postal system to customers in the United States and Australia, without holding the required permit. The Minister issued an Authority to Proceed (ATP), authorizing the Attorney General of Canada to request from the Court the issuance of a committal order. The offence, from a Canadian standpoint, was then described as the "importation of a Schedule VI controlled substance, contrary to s. 6(1) of the Controlled Drugs and Substances Act". The Superior Court ruled that there was sufficient evidence to justify committal for the offence of importation set out in the ATP under Canadian law. Damgajian submitted to the Minister that ordering his surrender would shock the Canadian conscience given the severity of the sentence he would face in the United States. He also invoked his personal circumstances as well as his right to remain in Canada under s. 6(1) of the Canadian Charter of Rights and Freedoms. These arguments were rejected by the Minister, who ordered that Damgajian be unconditionally surrendered for all offences identified in the American indictment and in the extradition request. Damgajian was subsequently released by the Court of Appeal pending his appeal of the committal order and his application for judicial review of the Minister's decision. While acknowledging the Minister’s wide discretion in drafting his Order, Damgajian argued that the offence mentioned in the Order of Surrender should be that mentioned in the committal order instead of all those mentioned in the indictment, namely: “Importation of a Schedule VI controlled substance, contrary to s. 6(1) of the Controlled Drugs and Substances Act.”

HELD: Motion granted. Offering little explanation, the Minister ordered the surrender on all the offences listed on the indictment. The Minister stated that he did not understand the reason behind Damgajian’s request that only the offence described in the committal order be included in the Order of Surrender. Failing to understand the reason behind Damgajian’s request, the Minister was unable to properly exercise his discretion. The matter was therefore to be referred back to the Minister for consideration of the possibility that Damgajian would face more severe sentences were all the offences mentioned in the American indictment included in the Order of Surrender. The Minister erred by failing to consider the probable sentence that Damgajian would face if convicted in Canada for the same conduct. The Minister only considered the maximum penalty and gave no consideration to factors that were taken into account in the Canadian sentencing system. Had he done so, he could well have concluded that the sentence to be faced by Damgajian in Canada would be far inferior to the maximum sentence of ten years. Not having properly considered the disparity of sentences in the two countries was an error that justified reconsideration.

Damgajian v. The Attorney General of Canada (United States of America), [2017] Q.J. No. 3867, Quebec Court of Appeal, The Honourables Nicole Duval Hesler C.J.Q., Yves-Marie Morissette J.A. and Marie-Josée Hogue J.A., April 6, 2017. Digest No. TLD-Apr242017012