



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lexier, 2018 ONCA 126

DATE: 20180209

DOCKET: C62707 and C63629

MacFarland, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tzvi Lexier

Applicant (Appellant)

Nicolas M. Rouleau and Daniel C. Santoro, for the
    appellant

Heather Graham, for the respondent

Heard: January 30, 2018

On appeal from the order for committal entered on September
    2, 2016 by Justice Katherine B. Corrick of the Superior Court of Justice and
    the decision of the Minister of Justice to surrender the appellant.

REASONS FOR
    DECISION

[1]

The appellant appeals his committal for extradition to the United States
    of America and, by way of judicial review, seeks to quash the surrender order
    of the Minister of Justice.

[2]

The conduct underlying the request involved the appellants management
    of a business that sold pharmaceuticals to doctors and clinics in the U.S.
    without complying with the American regulatory regime governing sales of
    prescription drugs. The companies managed by the appellant generated some 18
    million dollars in revenue by acquiring drugs in other countries and selling
    them in the United States at much lower prices than those approved by the
    American regulatory agencies.

[3]

The appellant concedes that he participated in that scheme, but says
    that the evidence at the committal hearing did not justify a committal for
    fraud. He argues that there was no deprivation and that there was no
    misrepresentation as to the nature of the drugs.

[4]

The Authority to Proceed (ATP) authorized the Attorney General to seek
    a committal on charges of fraud and possession of property obtained by crime.
    The committal hearing proceeded on that basis and the appellant was committed
    for these crimes.

[5]

The Minister then surrendered the appellant to the U.S. for conspiracy
    (not fraud) and the unlicensed distribution of prescription drugs.

[6]

The appellant submits that the process was unfair because he did not
    have an opportunity to respond to the allegations of conspiracy, which is in
    essence a different offence than fraud. In addition, he submits that:

(a)

the committal judge erred when she did not compel disclosure of the
    identities of the anonymous witnesses at the hearing;

(b)

there was insufficient evidence of the appellants participation in the
    fraud alleged; and

(c)

the Ministers decision to surrender on charges of conspiracy was
    unreasonable when fraud, not conspiracy, was the offence named in the ATP.

[7]

We reject these submissions.

[8]

The committal judge lacked the jurisdiction to require the foreign state
    to disclose the names of the witnesses:
U.S.A. v. Khadr
,
[2007] O.J. No 3140, at para. 51 (S.C.);
U.S.A. v. Su Go
,

[2008]
    O.J. No. 3012, at para. 22 (S.C.). Nor was there an air of reality to the
    appellants assertion that the witnesses could have recanted. The main
    cooperating witnesses pleaded guilty to charges relating to the scheme. We are
    not satisfied that any unfairness to the appellant resulted in this case.

[9]

Although the appellant focused his submissions on the allegation of
    fraud, the ATP also listed the charge of possession of property obtained by
    crime. The evidence supported this charge and the appellant did not seriously
    contest it. This satisfied the double criminality requirement on committal
    without reference to the fraud charge. The Canadian offence of possession of
    property obtained by crime, as specified in s. 354 of the
Criminal Code
,
    R.S.C. 1985, c. C-46, provides that:

Everyone commits an offence who has in his possession any property
    or thing or any proceeds of any property or thing knowing that all or part of
    the property or thing or of the proceeds was obtained by or derived directly or
    indirectly from

(a) the commission in Canada of an
    offence punishable by indictment; or

(b) an act or omission anywhere
    that, if it had occurred in Canada, would have constituted an offence
    punishable by indictment.

[10]

Section
    31.2 of the
Food and Drug Act
, R.S.C. 1985, c. F-27 provides that
    every person who contravenes any provision of the act or regulations is guilty
    of an indictable or summary conviction offence. The
Food and Drug
    Regulations
, C.R.C., c. 870 then provide for the licensing of persons who
    import drugs and requires that they apply for permits.
[1]

[11]

As
    such, the same conduct attributed to the appellant in the U.S. would have been
    criminal, and punishable by indictment, had it occurred in Canada. It is
    therefore not necessary to consider the sufficiency of the evidence relating to
    fraud, despite the potential gaps in the evidence relating to fraud as
    identified by the appellant.

[12]

Once
    the appellant was committed, the
Extradition Act
, S.C. 1999, c. 18, s.
    58(b) gave the Minister a broad discretion to describe the offence as the
    Minister saw fit  unfettered by any restraints in the ATP or the evidence in
    support of committal. The Supreme Court made this clear in
Canada (Justice)
    v. Fischbacher
,
2009 SCC
    46, [2009] 3 S.C.R. 170,at para. 41:

Nothing in s. 58(
b
) requires that the Minister match or
    align the surrender offence with that listed in the ATP or the committal
    order, nor with the evidence adduced at the hearing. In fact, quite the
    contrary: s. 58(
b
) provides the Minister with flexibility in crafting an
    order of surrender, and clearly contemplates that the wording of the surrender
    order may differ from that of the ATP and the order of committal

[Italics in original.]

[13]

Likewise,
    in
U.S.A. v. Barbu
,

2010 ONCA 891, at para. 37
,
    leave to appeal refused [2011] S.C.C.A. No. 66, this court cited the Supreme
    Courts decision in
Canada (Minister of Justice) v. Fischbacher
, 2009
    SCC 46, [2009] 3 S.C.R. 170, at para. 45 that: the words of the Act made it
    clear that as long as the conduct supports a Canadian offence, it does not
    matter what the offence might be or how the constituent elements are described
    in Canada. The person is liable to extradition. (citation omitted). There was
    no procedural unfairness in the Ministers surrender decision. The essence of
    the conduct described in the ATP and the Record of the Case was the same as in
    the surrender order  carrying on the business of selling pharmaceuticals and
    deliberately bypassing the American regulatory regime while doing so.

[14]

In
    summary, the appellant was properly committed on one of the charges in the ATP
    and the Minister did not act unfairly in exercising the discretion to surrender
    the appellant on charges of conspiracy.

[15]

The
    appeal and the application for judicial review are dismissed.

J.
    MacFarland J.A.

G. Pardu
    J.A.

M.L. Benotto J.A.





[1]

See ss. G.02.001 to G.02.003, for example.


