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Criminal - Extradition - Charter. United States v. Jones
In United States v. Jones (Ont CA, 2023) the Court of Appeal considered a JR against "the Minister of Justice’s order of surrender under the Extradition Act". In these quotes the court assesses this extradition in light of Charter s.6 'mobility rights':(3) The applicant’s s. 6 rights were not unjustifiably violated
[43] The applicant’s third ground for the judicial review relates to the violation of his s. 6 rights. In particular, the right of Canadian citizens to remain in Canada under s. 6(1) of the Charter, which provides: “[e]very citizen of Canada has the right to enter, remain in and leave Canada.”
[44] In United States v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469, the Supreme Court determined that extradition is a prima facie limitation on the right to remain in Canada. However, the court also observed that extradition will be generally warranted under s. 1 of the Charter as a reasonable limitation of the right to remain in Canada, given the pressing and substantial objectives of extradition: “(1) protecting the public against crime through its investigation; (2) bringing fugitives to justice for the proper determination of their criminal liability; (3) ensuring, through international cooperation, that national boundaries do not serve as a means of escape from the rule of law”: Akinbobola, at para. 9, citing Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609, at para. 10.
[45] In this application, the Minister concluded that certain factors “weigh[ed] significantly” in favour of surrender, namely that the U.S. has a greater interest in prosecuting the applicant; the minor victim alleged to be exploited over an extended period of time resides in the U.S.; the impact of the applicant’s alleged conduct was felt most strongly in the U.S.; the U.S. has a more comprehensive case pertaining to the applicant’s alleged conduct, and the investigation involving Victim 4 has been undertaken primarily by the Federal Bureau of Investigation; in addition to Victim 4, the victim’s mother and key civilian witnesses all reside in the U.S.; and the one Canadian police officer whose testimony may form part of the U.S. prosecution has given evidence already in possession of the U.S. authorities. The Minister also confirmed that no Canadian prosecutorial agency has expressed interest in prosecuting the conduct for which extradition is sought.
[46] With respect to the applicant’s undertaking to plead guilty if charged for criminal conduct in relation to Victim 4 in Canada, the Minister responded that, “[i]t is my view that Mr. Jones’ request to plead guilty in Canada should be denied. Canada’s commitment to fighting crime involves not only prosecuting alleged perpetrators in Canada, but also ensuring Canada does not become a safe haven for those, including Canadians, who victimize persons abroad from within Canada.” The Minister emphasized the importance of this point in the context of internet-based criminal conduct.
[47] The Minister concluded that, in all of the circumstances of the case, it would not be an unjustifiable breach of the applicant’s s. 6 Charter rights to surrender him to face prosecution in the U.S.
[48] According to the applicant, in his s. 6 analysis, the Minister made numerous legal errors: he created a false dichotomy between surrender and the applicant walking free; applied the wrong test to considering sentencing disparity; failed to respond to an important aspect of the applicant’s submissions; and dismissed the applicant’s undertaking to plead guilty for erroneous and/or unfair reasons.
[49] The Minister concluded that surrender did not constitute an unjustifiable breach of s. 6 because it would not shock the conscience of Canadians. The applicant takes issue with the reference to the threshold for a s. 7 violation as part of the s. 6 Cotroni analysis. The applicant argues that the Cotroni analysis is concerned with whether domestic prosecution would be an equally effective or desirable outcome as extradition, not with whether surrender would shock the conscience of Canadians, nor whether surrender would be unjust or oppressive. By conflating the tests to consider sentencing disparity under s. 7 of the Charter and s. 44(1)(a) of the Extradition Act, the Minister erred in dismissing sentencing disparity as a consideration under s. 6 altogether.
[50] The applicant also argues that the Minister erred in failing to accept his undertaking to plead guilty to a Canadian prosecution of criminal conduct in relation to Victim 4, which would best serve the public interest considerations of costs, delays, and inconvenience to witnesses (particularly considering the lack of incentive to plead guilty in the U.S., given the likely sentence).
[51] Again, I am not persuaded by these arguments.
[52] As stated above, the Supreme Court has confirmed that the prima facie infringement of s. 6 that extradition entails can generally be justified under s. 1. The determination of whether it is justified requires the Minister to weigh the factors favouring domestic prosecution against the interest of the requesting state in prosecuting. This means that the Minister’s assessment rests largely on his political decision of whether Canada should defer to the interests of the requesting state: see Lake, at paras. 30, 37.
[53] It was open to the Minister to conclude that, short of a situation where surrender was unjust or oppressive or shocked the conscience of Canadians, the surrender did not constitute an unjustifiable breach of s. 6. This conclusion, in the circumstances of this case, was not unreasonable. Similarly, the Minister’s rejection of the applicant’s undertaking to plead guilty to the child luring charge in relation to Victim 4, if a prosecution was initiated in Canada, also was reasonable, especially where no Canadian agency had expressed any interest in such a prosecution. The applicant also could point to no other case where the rejection of such an undertaking was found to be unreasonable.
[54] In summary, the Minister thoroughly considered the applicant’s s. 6 submissions, consulted with his own officials, as well as the Ministry of the Attorney General of Ontario, to discuss prosecuting the applicant in Canada, considered the evidence before him, and made inquiries to the U.S. Department of Justice about the treatment of this case. The Minister reviewed the applicable law, balanced the relevant factors, and came to the conclusion that extradition would not constitute an unjustified violation of s. 6(1) of the Charter. . United States v. Jones
In United States v. Jones (Ont CA, 2023) the Court of Appeal considered a JR against "the Minister of Justice’s order of surrender under the Extradition Act". Here the court considers this extradition in light of Charter s.7:(1) The Minister’s conclusion that surrender was not a violation of s. 7 of the Charter, or unjust or oppressive, was reasonable.
[12] The Minister identified the legal standard for the s. 7 Charter argument to be whether the surrender “would shock the conscience of Canadians”: United States v. Lane, 2017 ONCA 396, 138 O.R. (3d) 167, at para. 85, leave to appeal refused, [2017] S.C.C.A. No. 390, and the principle that refusal to surrender on this basis is available only in very exceptional circumstances: United States v. Akinbobola, 2022 ONCA 29, at para. 18.
[13] The applicant argues that the standard is not necessarily this high, and that a sentence that could be characterized as unjust or oppressive, even if not a violation of s. 7, would be a sufficient basis for declining to surrender.
[14] The respondent contends that there is no merit to the applicant’s claim, and reiterates, as the Supreme Court held in United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, at paras. 67-69, that only circumstances of a “very exceptional nature” will reach the threshold of shocking the conscience of Canadians to justify refusal of surrender and therefore be unjust or oppressive. According to the court in Burns, the “shocks the conscience” terminology might be met, for example, by subjecting an offender to punishments such as “stoning to death individuals taken in adultery” or “lopping off the hands of a thief”: at para. 69. In such circumstances, the punishment is so extreme that it becomes “the controlling issue in the extradition and overwhelms the rest of the analysis”: at para. 69.
[15] The Minister decided that the sentence would not be one that would shock the conscience of Canadians, nor was it one which could be characterized as unjust or oppressive. The Supreme Court stated in Lake that a Minister’s reasons “must make it clear that he considered the individual’s submissions against extradition and must provide some basis for understanding why those submissions were rejected”: at para. 46. The Minister’s decision in this case clearly met this threshold.
[16] The applicant also submits that the Minister’s conclusion that surrender would not be unjust or oppressive is unreasonable because he failed to consider all relevant circumstances, failed to consider them cumulatively, and failed to adequately respond to the applicant’s submissions. In particular, the Minister, according to the applicant, failed to consider his personal circumstances, including that, in relation to the Canadian prosecution for child luring, the applicant immediately waived his Charter rights, and confessed upon being arrested. Moreover, the applicant was in his early 20s when the alleged offences were committed, and he had amassed no additional charges in Canada since finishing his sentence.
[17] I would reject this argument. The Minister clearly was aware of the applicant’s personal circumstances. Unlike in United States v. Leonard, 2012 ONCA 622, 112 O.R. (3d) 496, however, those circumstances did not constitute a significant issue that could have affected the decision to surrender. In Leonard, this court found the Minister acted unreasonably, in part, by failing to address the applicant’s Indigenous status and Gladue sentencing principles properly. Here, there is no similar governing, sentencing principle that was not addressed by the Minister arising from this applicant’s personal circumstances.
[18] The applicant next argues that extradition would result in “split-up” or “piecemeal” prosecutions which, when considered in combination with the applicant’s personal circumstances, the similarity in the offences, and the extreme sentencing disparity, render it impossible for the Minister to conclude that political considerations outweigh the impact of surrender. The only reasonable conclusion, according to the applicant, is that surrender would be unjust or oppressive.
[19] The respondent submits that the applicant’s claim misconstrues the meaning of a piecemeal prosecution. A piecemeal prosecution, the respondent argues, might arise where an accused is subject to different prosecutions in different countries for the same offence or harm to the same victim. That is not the situation here. The Minister stated in his reasons, “[t]he essential character of the two offences is distinct, and they concern different wrongs against two different victims.”
[20] The Minister rejected the applicant’s argument that the extradition amounted to split prosecution over the same crime. The Minister explained that the fact that Mr. Jones’ alleged criminal conduct was committed in a specific time frame, prior to his Canadian prosecution, did not mean that his conduct in relation to each of his victims constituted a single or ongoing transaction. The prosecutions involved different victims and different conduct and circumstances surrounding the commission of the offences. Further, the Minister noted that Pennsylvania Victim 4 endured harms experienced in the U.S., and the Minister accepted the importance of prosecuting the case in the jurisdiction where the harm was done, and the vulnerable victim located.
[21] The Minister relied on Canada (Attorney General) on behalf of the United States of America v. Tyndall, 2021 ABCA 95, in which the Court of Appeal of Alberta addressed concerns with respect to overlapping aspects of prosecutions in the U.S. and Canada for criminal conduct involving child luring over the internet and upheld a surrender in analogous circumstances.
[22] I see no basis on which to disturb the Minister’s conclusion on this issue, which is entitled to deference.
[23] Finally, the applicant argues that the significant disparity in sentences between Canada and the U.S. constitutes a ground on which surrender should have been declined as unjust or oppressive.
[24] The U.S. indictment charges Mr. Jones with committing the offences of sexual exploitation of children, which carries a minimum penalty of 15 years’ imprisonment and a maximum penalty of 30 years’ imprisonment; and extortion by means of interstate communications, which carries a maximum penalty of 2 years’ imprisonment.
[25] The Minister stated that U.S. authorities advised him that Mr. Jones’ potential sentence will depend on whether he decides to plead guilty, or is found guilty after trial, to one or more of the counts charged. If Mr. Jones is found guilty at trial, he will be sentenced by the presiding judge who has the discretion to determine the appropriate sentence. The Minister noted that the sentencing judge also has the discretion to impose a sentence consecutively or concurrently.
[26] The Minister emphasized the variability of the sentencing process in the U.S. depending on whether Mr. Jones decided to plead guilty, or to cooperate with the American authorities in related investigations.
[27] The Minister acknowledged that the disparity in potential sentencing in this case was significant – a range of 18 months to 6 years if convicted in Canada (depending on which counsel’s suggested range were accepted) to a minimum sentence of 15 years if convicted in the U.S., with a maximum of 30 years imprisonment. The Minister, having acknowledged the disparity, concluded, “[n]evertheless, with the exception of death penalty cases, nothing in the Treaty allows the Minister to refuse surrender based on sentencing disparity, including a large one.”
[28] A sentence is not unjust or oppressive simply because the applicant would have received a lesser sentence had he been prosecuted domestically: U.S.A. v. Ranga, 2012 BCCA 82, [2012] B.C.W.L.D. 5379, at para. 9. In United States v. Viscomi, 2019 ONCA 490, 146 O.R. (3d) 145, at para. 46, this court stated that “the determination of whether a potential sentence is so severe as to be fundamentally unjust, is not established by a simple quantitative comparison of the relative lengths of foreign and domestic sentence ranges.”
[29] The applicant has provided no case law where the length of the foreign sentence was found to constitute such an extreme punishment that it infringed s. 7 or that it properly should be characterized as unjust or oppressive.
[30] The Minister’s rejection of the applicant’s claim with respect to the disparity of sentence was reasonable.
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