United States of America v. Cotroni; United States of America v. El Zein

The facts of these cases may be summarized briefly as follows:

(A)Mr. Cotroni

(i) Mr. Cotroni is a Canadian citizen;

(ii)on August 30, 1983 he was arrested in Canada pursuant to a warrant issued under the Extradition Act, R.S.C. 1970, c. E-21, and the Extradition Treaty between Canada and the United States, C.T.S. 1976;

(iii)the warrant alleged that Mr. Cotroni participated in a conspiracy to possess and distribute heroin in the United States;

(iv)all of Cotroni's actions relating to the alleged conspiracy took place in Canada and at no time did Cotroni leave Canada.

(B) Mr. El Zein

(i)Mr. El Zein is a Canadian citizen;

(ii)on December 17, 1984 he was arrested in Canada pursuant to a warrant issued under the Extradition Act and the Extradition Treaty between Canada and the United States;

(iii)the warrant alleged that El Zein had imported heroin into the United States and that he participated in a conspiracy to import and distribute heroin in the United States;

(iv)all of El Zein's actions relating to the allegations took place in Canada and at no time did El Zein leave Canada.

The extradition of each accused to the United States was sought on the ground that the drug enforcement laws of the United States extend beyond the territorial boundaries of the United States where the object of the illegal activity is to bring the drugs into the United States. Canada has similar legislation governing the importation of drugs into and the exportation of drugs out of Canada. It is common ground that each accused could have been charged by Canadian authorities with violating s. 423(1)(d) of the Criminal Code, R.S.C. 1970, c. C-34, and s. 5 of the Narcotic Control Act, R.S.C. 1970, c. N-1.

At their respective extradition hearings both Cotroni and El Zein were committed for surrender to the United States. Both appealed their committals, first unsuccessfully to the Quebec Superior Court and then successfully to the Quebec Court of Appeal, on the basis that their extradition to the United States violated s. 6(1) of the Charter . The United States asked for and was granted leave to challenge the findings of the Quebec Court of Appeal in this Court. The following constitutional questions were set by Justice Lamer:

1. Does the surrender of a Canadian citizen to a foreign state constitute an infringement of his right to remain in Canada as set out in s. 6(1) of the Canadian Charter of Rights and Freedoms ?

2. If the surrender of such citizen constitutes a prima facie infringement of his right to remain in Canada, does the surrender of respondent in the circumstances of this case constitute a reasonable limit under s. 1 of the Canadian Charter of Rights and Freedoms ?

Section 6(1) of the Charter provides:

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

In the Quebec Court of Appeal it was conceded by counsel for the United States that the extradition process as contemplated by the Extradition Act and the Extradition Treaty between Canada and the United States violated s. 6(1) of the Charter . However, on appeal to this Court, counsel for the United States argued that the rights enumerated in the Charter , even without reference to s. 1, were not absolute but were subject to internal qualifications and limits. Counsel therefore interpreted s. 6(1) narrowly as solely designed to deal with circumstances in which a Canadian citizen was threatened with exile, banishment or expulsion. Extradition of a citizen did not, therefore, violate s. 6(1).

This Court has, on several occasions, set forth the guidelines to be employed in construing Charter provisions. In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344, Dickson J., as he then was, stated:

In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court expressed the view that the proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.

In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter . The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter 's protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court's decision in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts.

Applying these guidelines, it is my view that s. 6(1) of the Charter was designed to protect a Canadian citizen's freedom of movement in and out of the country according to his own choice. He may come and go as he pleases. He may elect to remain. Although only Canadian citizens can take advantage of s. 6(1) the right protected is not that of Canadian citizenship. Rather, the right protected focuses on the liberty of a Canadian citizen to choose of his own volition whether he would like to enter, remain in or leave Canada. Support for this interpretation is found in the language of the other subsections of s. 6 and in the heading of s. 6 "Mobility Rights".

In my view, the language of s. 6(1) is clear and unambiguous. Had it been the intention that s. 6(1) address only a citizen's right not to be exiled or banished, the section would have been framed in more specific terms. Indeed, the more specific terminology of exile and expulsion are used in both the Canadian Bill of Rights, R.S.C. 1970, App. III, and the European Convention on Human Rights.

Canadian Bill of Rights

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

(a) authorize or effect the arbitrary detention, imprisonment or exile of any person;

European Convention on Human Rights

Protocol 4, Article 3, paragraph 1:

1. No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.

Accordingly, I conclude that the extradition of a Canadian citizen violates his right to remain in Canada as guaranteed by s. 6(1) of the Charter .

Section 1 of the Charter provides:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The focus of the Charter is on the protection of the enumerated rights and freedoms from governmental intrusion. As Dickson C.J. stated in R. v. Oakes, [1986] 1 S.C.R. 103, at p. 136:

The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.

This point was also made in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, wherein I stated at p. 218:

It seems to me that it is important to bear in mind that the rights and freedoms set out in the Charter are fundamental to the political structure of Canada and are guaranteed by the Charter as part of the supreme law of our nation. I think that in determining whether a particular limitation is a reasonable limit prescribed by law which can be "demonstrably justified in a free and democratic society" it is important to remember that the courts are conducting this inquiry in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter .

Given this focus, governmental limits on protected rights and freedoms can only be legitimized in the clearest of cases. It is simply not enough to override a constitutionally protected right or freedom for the legislation to be designed to serve a particular state objective. Rather, the state objective must take cognizance of and be tailored to the rights and freedoms on which it impinges. It was with these considerations in mind that this Court in R. v. Oakes outlined the criteria which must be met before legislation infringing upon a guaranteed right or freedom can be saved by s. 1. It bears repeating (pp. 138-39):

To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom": R. v. Big M Drug Mart Ltd., supra, at p. 352. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra, at p. 352. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".

The Ontario Court of Appeal was the first appellate court in Canada to consider the application of s. 1 of the Charter to the law of extradition. In Re Federal Republic of Germany and Rauca (1983), 4 C.C.C. (3d) 385, that court considered a situation in which the West German authorities had requested extradition of a Canadian citizen for crimes he had committed during World War II prior to his becoming a Canadian citizen in territory occupied by Germany. The Court of Appeal held, at p. 406, without the benefit of this Court's decision in R. v. Oakes:

It is not necessary to turn to lengthy dictionary definitions of the words "demonstrably justified". They are words of common understanding and usage and they place a significant burden on the proponents of the limiting legislation. When the rationale and purpose of the Extradition Act and the treaty under it are looked at (having in mind that crime should not go unpunished), Canada's obligations to the international community considered and the history of such legislation in free and democratic societies examined, in our view, the burden of establishing that the limit imposed by the Extradition Act and the treaty on s. 6(1) of the Charter is a reasonable one demonstrably justified in a free and democratic society has been discharged by the respondents.

The Ontario court in obiter dicta, at p. 405, speculated as to what the outcome of the case would have been if the accused could have been prosecuted in Canada for his crimes:

Counsel for the appellant suggested that there was a possibility that the appellant could be prosecuted in Canada for the crimes with which he had been charged. If there was this alternative, the argument was that extradition was not a reasonable limit on the appellant's right as a citizen to remain in Canada. This submission was not pressed strongly and, like the Chief Justice of the High Court, we are not persuaded that there is, at present, a right to prosecute the appellant for the recited crimes in Canada. Even if there were such a right to prosecute, in light of the described purpose and reason for and lengthy history of extradition, it would not turn a reasonable limit on the citizen's right to remain in this country into an unreasonable limit. [Emphasis added.]

A majority of this Court, also in obiter dicta, has given support to the conclusion in Re Federal Republic of Germany and Rauca that extradition of a Canadian citizen who has committed an offence in a foreign jurisdiction meets the criteria of s. 1 of the Charter . In Canada v. Schmidt, [1987] 1 S.C.R. 500, La Forest J., for the majority, stated at p. 520:

In Rauca, supra, for example, the Ontario Court of Appeal recognized that extradition intruded on a citizen's right under s. 6 to remain in Canada, although it also found that the beneficial aspects of the procedure in preventing malefactors from evading justice, a procedure widely adopted all over the world, were sufficient to sustain it as a reasonable limit under s. 1 of the Charter . Section 6 was not raised in this case, though Schmidt is a Canadian citizen, no doubt because her counsel believed, as I do, that it was properly disposed of in the Rauca case.

It should be noted that in neither Rauca nor Schmidt was the Ontario Court of Appeal or this Court dealing with the extradition of a Canadian citizen for acts committed within Canada for which the accused could be prosecuted in Canada. This is before us for the first time. In both Rauca and Schmidt the acts were committed in the requesting state, the typical extradition context.

Since it was not necessary to my decision in Schmidt I did not express an opinion as to the soundness of the proposition stated in absolute form in Rauca that extradition was per se a reasonable limit justified under s. 1 because I was not sure that it should not be subject to qualification in some circumstances. In other words, it seemed to me unwise and unnecessary to state this as a bald and absolute proposition and preferable, while acknowledging that in general extradition is a reasonable limit, to deal with particular circumstances on a case by case basis. It was my view that there might well be circumstances in which extradition might not be a reasonable limit under s. 1. The present appeals illustrate the problem about which I was concerned. Even if extradition is a reasonable limit demonstrably justified in a free and democratic society where a Canadian citizen commits an offence within the territorial boundaries of a foreign state, and I think that it clearly is, that does not dispose of the present appeals. In these appeals we must take into account the fact that the accused are Canadian citizens, that their alleged wrongful conduct took place entirely within Canada, and that such conduct gives rise to offences for which the accused can be charged and prosecuted in Canada. It is in that factual context that the Oakes test must be applied.

I emphasize that we are dealing in these cases with a very narrow issue. We are not dealing with circumstances in which a Canadian citizen who has committed an offence in a foreign country seeks to resist extradition on the basis of his right under s. 6(1) of the Charter to remain in Canada. Such a claim would, in my opinion, fail. While extradition infringes the rights of Canadian citizens under s. 6(1), the law of extradition has been held to be and, in my view, is in those circumstances a reasonable limit on that right which can be justified in a free and democratic society. The crucial question before us in these cases is whether extradition is a reasonable limit on the Canadian citizen's constitutionally guaranteed right to remain in Canada where his wrongful conduct took place wholly within Canada and constitutes an offence for which he can be charged and prosecuted here. I believe that these facts are relevant to the balancing exercise to be undertaken under s. 1 of the Charter .

My colleague takes the position that the locus of the accused's wrongdoing is irrelevant under both s. 6(1) and s. 1 of the Charter . I must respectfully disagree. I believe that the locus of the wrongdoing is very relevant when extradition to a foreign country is sought to be justified as a reasonable limit on a Canadian citizen's right to remain in Canada. Indeed, the locus of the wrongdoing is frequently the key factor connecting the accused to the requesting state. A Canadian citizen who leaves Canada for another state must expect that he will be answerable to the justice system of that state in respect of his conduct there. There can be no doubt as to the real interest of a requesting state in bringing to justice Canadians who have committed crimes within its (the requesting state's) territory. The question is whether that interest weighs as heavily under s. 1 when the crime was committed by a Canadian within Canadian territory.

It is not necessary in order that the appellants in this case be brought to justice that they be extradited to the United States. They can be brought to justice right here. It is alleged, however, that it would be more convenient if they were prosecuted in the United States and that Canada will appear to be uncooperative if it refuses to extradite them. In my view, it would require far stronger reasons than those to justify the violation of a right expressly guaranteed to Canadian citizens in the Charter .

I may say that I view with some alarm my colleague's characterization of the proposed extradition of the respondents as a "peripheral" violation of s. 6(1). If one characterizes a complete denial of the citizen's right to remain in Canada under s. 6(1) as a "peripheral" violation, then, of course, one has already pre-judged the s. 1 issue. I would, however, respectfully suggest that such an approach represents a novel departure from the Court's traditional approach to the balancing process called for under s. 1 and one that could pose a very serious threat to the protection for the citizen which the Charter was intended to provide.

It was also strenuously argued before us that the decision whether or not to extradite an accused at the behest of a requesting state is a matter of ministerial discretion and that the decision whether an accused should be prosecuted in Canada or elsewhere is a matter of prosecutorial discretion. The underlying premise of this submission seems to be that the executive branch of government in exercising such discretionary powers is not bound by the Charter . Section 32(1) of the Charter seems to be a complete answer to this submission. I would refer also to the statement of Dickson J. in Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 455:

I have no doubt that the executive branch of the Canadian government is duty bound to act in accordance with the dictates of the Charter .

The Charter is part of the constitution of Canada which is declared to be the supreme law of the country in s. 52(1) of the Constitution Act, 1982 . It is insupportable to suggest that the Attorney General of Canada or any other official of government has a discretion whether or not to respect the rights guaranteed under it.

It would, moreover, be my view that countries with which Canada has extradition treaties might be expected to have confidence in the Canadian system of justice to deal responsibly with its own citizens committing crimes within its own borders. Conversely, Canada might be expected to repose a similar confidence in the justice systems of the countries with which it has undertaken treaty obligations. Mutual respect for each other's system in dealing with their own nationals committing crimes within their own territories would appear to make eminent good sense. This is not, after all, the primary focus of extradition and Canada would, in my view, have to have a very good reason for abdicating its public responsibility to deal with its own nationals committing crimes within its own territory. I say this quite apart from Canada's obligation to respect the constitutional rights of its citizens although the latter is, of course, the paramount issue raised in these appeals.

I do not view the right of Canadian citizens to be tried here (where this is possible) in preference to trial in a foreign jurisdiction as a trivial one. The system of justice in the United States, which happens to be the requesting state in this case, may be very similar to our own and the proceedings there may closely parallel the proceedings here. But this will not necessarily be so in the case of all requesting states. The right in some cases may be a very valuable one indeed.

I return then to the application of R. v. Oakes to the narrow issue in these cases. The first criterion identified by Dickson C.J. in that case was that the governmental objective in limiting the right be in response to a pressing and substantial concern. I agree with my colleague, La Forest J., that the control of trans-border crime is, indeed, of sufficient importance to warrant a legislative limit on a constitutionally protected right. States can no longer live in "splendid isolation". Modern technology allows for almost instantaneous world-wide communication and same-day world-wide travel and transportation. Criminals take advantage of this advanced technology, particularly in the area of drug trafficking, and effective means are accordingly required on an inter-state level to combat this problem. As La Forest J. points out in his reasons, extradition is an important and well-established tool for the suppression of trans-border crime. It therefore meets the first criterion set out in R. v. Oakes.

The first criterion in R. v. Oakes having been satisfied, the legislative limit must next pass the proportionality test. First, the scheme must be rationally connected to the objective. At the Quebec Court of Appeal in Re El Zein and The Queen (1986), 29 C.C.C. (3d) 560, Jacques J.A. felt that no such rational connection existed. He stated at p. 567:

(TRANSLATION) According to the criteria of reasonableness laid down by the Supreme Court in the Oakes decision, this measure is not rationally connected to the objective pursued, namely, the suppression of transborder crime -- the facts took place in Canada; these facts constitute a crime in Canada as well as in the United States. Those are the two premises. Their rational conclusion is not extradition and a trial in the United States, but rather a trial in Canada, because it is Canada which has the duty to preserve public order and to repress crime within its borders. The connection with the United States is only incidental and not necessary.

I share the concerns of Jacques J.A. but I believe that they are better dealt with under the second tier of the proportionality test. It is generally accepted that more than one state can have an interest in prosecuting the acts of a particular individual. In such cases both states have jurisdiction to try the accused for the offence. Canada obviously has a vital interest in controlling criminal activity within its own borders. At the same time, on the facts of these appeals, the harm resulting from the commission of the offences would have been more acutely and immediately felt within the United States. I would conclude, therefore, that the means employed, i.e., extradition are rationally connected to the objective of controlling trans-border crime.

In my view, however, the scheme of extradition, on the particular facts of these appeals, cannot pass the second tier of the Oakes proportionality test which requires that the means, even if rationally connected to the objective, impair "as little as possible" the right in question. The objective of controlling trans-border crime could have been achieved by prosecuting Cotroni and El Zein in Canada under s. 423 of the Criminal Code and s. 5 of the Narcotic Control Act. The prosecution of Cotroni and El Zein in Canada would have avoided a contravention of s. 6 of the Charter entirely.

Counsel for the United States urged that there were legitimate reasons for the prosecutions to take place in the United States as opposed to Canada. The crimes were uncovered by United States authorities, the investigation and legal proceedings were initiated there, most of the witnesses and evidence is there and the impact of the crimes would primarily have been felt there. We were referred to United States of America v. Swystun (1987), 50 Man. R. (2d) 129, which highlighted several factors to be taken into account in determining the appropriate jurisdiction for a prosecution. I do not for a moment doubt that the United States has an interest in prosecuting crimes whose impact is felt there. Nor do I question that the United States may be the more convenient forum for the prosecution of these particular offences. However, in my opinion, these considerations are more apposite to the question of whether the legislative means are rationally connected to the objective than to the question of whether the right is impaired as little as possible. As I mentioned earlier, the focus of the Charter is the protection of rights and freedoms fundamental to a free and democratic society. Limits on those rights must be confined to those which are reasonable and justified in that kind of society and should not be based merely on considerations of administrative convenience. As I stated in Singh v. Minister of Employment and Immigration, supra, at pp. 218-19, in the context of whether the procedures for the adjudication of refugee status claims set out in the Immigration Act, 1976 violated the Charter :

The issue in the present case is not simply whether the procedures set out in the Immigration Act, 1976 for the adjudication of refugee claims are reasonable; it is whether it is reasonable to deprive the appellants of the right to life, liberty and security of the person by adopting a system for the adjudication of refugee status claims which does not accord with the principles of fundamental justice.

Seen in this light I have considerable doubt that the type of utilitarian consideration brought forward by Mr. Bowie can constitute a justification for a limitation on the rights set out in the Charter . Certainly the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so. No doubt considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice but such an argument, in my view, misses the point of the exercise under s. 1. The principles of natural justice and procedural fairness which have long been espoused by our courts, and the constitutional entrenchment of the principles of fundamental justice in s. 7, implicitly recognize that a balance of administrative convenience does not override the need to adhere to these principles. Whatever standard of review eventually emerges under s. 1, it seems to me that the basis of the justification for the limitation of rights under s. 7 must be more compelling than any advanced in these appeals.

Although these comments were made with reference to a violation of s. 7 of the Charter and not s. 6 , I believe they reflect a proper approach to the interpretation and application of s. 1.

In coming to this conclusion I am not unmindful of the comments of La Forest J. that a flexible approach should be taken in some cases to the proportionality test in R. v. Oakes. However, this does not seem to me to be one of those cases. It is one thing to temper scrutiny of legislation and relax the general approach to "fine tuning" when dealing with alternate forms of business regulation (see R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, per Dickson C.J., at p. 772) and another thing entirely to abandon careful scrutiny of a legislative scheme which directly abridges a guaranteed right particularly in relation to an aspect of the criminal law.

Furthermore, in my opinion, the comity of nations fostered by extradition is not adversely affected by the result I have reached. United States law enforcement agencies will continue to monitor the United States borders to prevent the importation of illegal drugs and these agencies will continue to cooperate with Canadian law enforcement agencies. Information will be shared and support will be given not only between law enforcement agencies but also between prosecutors. I would respectfully adopt the words of Jacques J.A. in Re El Zein and The Queen, supra, at pp. 568-69:

(TRANSLATION) Mere courtesy, or co-operation in combating crime, among various countries, does not justify this extradition because the end sought through this co-operation can be attained while still respecting the right of a citizen to remain in his country.

I conclude, therefore, that on the particular facts of these appeals extradition cannot be justified under s. 1 of the Charter .