



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Churuk, 2013 ONCA
    330

DATE: 20130523

DOCKET: C54053, C54054, C56061 & C56062

Laskin, Feldman and Watt JJ.A.

IN THE MATTER OF an appeal of a
    committal order pursuant to s. 49 of the
Extradition Act
, S.C. 1999,
    c. 18

AND IN THE MATTER OF an
    application for judicial review pursuant to s. 57 of the
Extradition Act
,
    S.C. 1999, c. 18

BETWEEN

The Attorney General of Canada on Behalf of the
    United States of America

Respondent

and

Yaroslav Churuk (a.k.a. Yaroslav Botsvynyuk a.k.a.
    Slavko)  and Mykhaylo Botsynyuk (a.k.a.
    Mykhaylo Churuk a.k.a. Misha)

Appellants/Applicants

Paul Slansky, for the appellants/applicants

Richard A. Kramer, for the respondent

Heard and released orally: May 2, 2013

On appeal from the committal order of Justice Jane E.
    Kelly of the Superior Court of Justice, dated July 22, 2011, and on application
    for judicial review of the surrender order of the Minister of Justice, dated August
    28, 2012.

ENDORSEMENT

[1]

The appellants/applicants are sought for prosecution in Pennsylvania for
    their role in a human trafficking scheme that saw their victims smuggled from
    the Ukraine into the United States, where they were allegedly held under
    conditions of servitude.

[2]

The appellants are alleged to have conspired in the scheme with their
    three brothers, two of whom have been found guilty following their trial by
    jury in Pennsylvania.

[3]

Kelly J. ordered the appellants committed for extradition.  The Minister
    of Justice then ordered their surrender.  The appellants appeal the committal
    order and apply for judicial review of the surrender order.  They raise
    numerous interrelated grounds of appeal and arguments.  We will deal briefly
    with each one.

(1)

Ulterior Motives

[4]

The appellants contend that the Ukraine has ulterior motives to
    prosecute them and that the United States is wilfully blind to these motives. 
    The appellants argue that to extradite them in these circumstances would be an
    abuse of process.  Both the extradition judge and the Minister rejected this
    argument.  We see no error in their doing so.

[5]

Contrary to the appellants submission, we are satisfied that the
    extradition judge understood the argument on ulterior motives but did not
    accept it.  After making several findings at para. 21 of her reasons, she
    concluded at para.  22:

Further, there is no requirement for the authorities in the U.S.A.
    to examine the Ukrainian investigation and court proceedings or make that part of
    the Record of the Case.  Police misconduct in Ukraine cannot make it an abuse
    of process for the American to prosecute persons for offences allegedly
    committed in their jurisdiction.

[6]

We agree with her conclusion.

(2)

Disclosure

[7]

The appellants argue that they cannot challenge the reliability of the
    evidence of the witnesses without disclosure of their names.  Pardu J. rejected
    this argument.  She held that this was a matter that went to ultimate
    reliability, not threshold reliability.  On the record in this case we agree
    with her holding.  Moreover, as Kelly J. noted, the appellants received, in
    considerable detail, the substance of the evidence against them.

[8]

Finally, ordering disclosure of the names of the witnesses would give
    the appellants a degree of disclosure that would exceed their entitlement under
    the procedural laws of Pennsylvania: see
USA v. Michaelov
, at para.
    61.  The sensible purpose of this disclosure policy is to protect the safety of
    the victims in human trafficking cases.

(3)

Certification

[9]

The appellants contend that without the names of the witnesses the
    record is not properly certified.  There is no merit to this contention.

(4)

The Conduct was
    Statute Barred

[10]

The
    United States has said that the offences continued until 2007.  The indictment
    was issued March 17, 2010 and, thus, filed within the five year limitation
    period.  Moreover, this argument was raised by one of the brothers at his trial
    in the United States and was rejected.  In our opinion, the Minister was
    entitled to rely on the United States position and the finding of the trial
    court.

(5)

Indirect Refoulement

[11]

The
    appellants also argue that, as they are convention refugees in Canada, they are
    entitled to our countrys protection and that their surrender would amount,
    indirectly at least, to refoulement.  The Minister concluded there were serious
    reasons for considering that the appellants had committed a serious
    non-political crime in the United States before they were declared refugees in
    Canada.  Therefore, they were not entitled to protection under the principle of
    non-refoulement.

[12]

We
    agree with the Minister.

[13]

In
    addition, the Minister asked CIC to conduct a risk assessment and that
    assessment showed the appellants would not face a risk of persecution or
    torture in the Ukraine.

(6)

Double Jeopardy

[14]

Churuk
    was not even prosecuted in the Ukraine so that he was not in jeopardy.  
    Therefore, he cannot raise this argument.

[15]

The
    Minister recognized that he had discretion under s. 47(a) of the Act to refuse
    the surrender of Botsvynyuk on the ground of double jeopardy.  The Minister
    declined to exercise this discretion because, in his view, the victims were
    different and a considerable part of the criminal conduct could not be
    prosecuted in the Ukraine.

[16]

These
    were reasonable grounds for the Ministers exercise of discretion not to refuse
    surrender on the basis of double jeopardy.

(7)

Persecution

[17]

The
    appellants submit that before surrendering them, the Minister was required to
    seek assurances that they would be returned to Canada, not the Ukraine, after
    the United States proceedings are completed.  The Minister did not accept this
    submission.  He held that the appellants surrender would not shock the
    conscience and, therefore, assurances were neither required nor appropriate.

[18]

We
    agree.

(8)

Conclusion

[19]

The
    appeal and the application for judicial review are dismissed.

John Laskin J.A.

Kathryn Feldman J.A.

David Watt J.A.


