





CITATION:
United States of America v. Thamby, 2011 ONCA
          829



DATE: 20111222



DOCKET: C54224



COURT OF APPEAL FOR ONTARIO



MacPherson, Juriansz and Epstein JJ.A.



BETWEEN



The Minister
          of Justice and Attorney General of Canada

on behalf of
          The United States of America



Respondent



and



Ragavan Thamby



Applicant



Alan D. Gold, for the applicant



Richard Kramer, for the respondent



Heard and released orally:
December 16, 2011



On application for judicial review, pursuant to s. 57 of the
Extradition
          Act
, S.C. 1999, c. 18, of the decision dated August 17, 2011 of the
          Honourable Robert Nicholson, Minister of Justice and Attorney General of
          Canada.



ENDORSEMENT




[1]

The applicant Ragavan Thamby applies for judicial review of the decision
    of the Minister of Justice dated August 17, 2011 ordering the surrender of the
    applicant to the United Sates to face serious fraud charges.

[2]

The extradition judge ordered the applicants committal order for
    extradition on May 20, 2010.  The Minister of Justice ordered the applicants
    surrender on October 15, 2010.

[3]

The applicant appealed the committal order and sought judicial review of
    the surrender order.  In a decision dated April 29, 2011, this court upheld the
    decision of the extradition judge.  However, with respect to the surrender
    decision, the court determined that the Minister of Justice had failed to
    consider the unusual facts of this case (the almost completed guilty plea by
    the applicant to the Canadian fraud charges) and had not sufficiently
    considered the so-called
Cotroni
factors in assessing the applicants s.
    6
Charter
submission.  The court allowed the application for judicial
    review and remitted the matter to the Minister of Justice for reconsideration.

[4]

The applicant made additional submissions to the Minister.  In a letter
    dated August 17, 2011, the Minister informed the applicants counsel that I
    have concluded that Mr. Thambys surrender to the United States is still
    warranted on the offences for which his extradition is sought.

[5]

The applicant submits that the Ministers decision is unreasonable and
    based upon errors in law.  His principal submission is that the Ministers
Cotroni
assessment is still flawed because the Minister failed to recognize and
    properly weigh the fact that carelessness of court staff prevented the
    prosecution from arriving at a final conclusion.  As Mr. Gold put it, the
    Minister allowed clerical carelessness to trump the applicants s. 6
Charter
right to remain in Canada.  He says that the Minister has authority,
    independent of any exercise of prosecutorial discretion by the Attorney General
    of Ontario, to request charges be relaid or to prosecute any
Criminal Code
charge, and that this is what the Minister should do in this case.

[6]

We are not persuaded by this submission.  In his supplemental reasons,
    the Minister engaged in a proper
Cotroni
analysis.  He considered the
    unusual factual history of this case, noting that the applicant would have
    pleaded guilty to the Canadian charges before the United States requested his
    extradition.  He observed that the decision of the provincial Crown to stay the
    Canadian charges on the eve of resolution because of the extradition request
    was entirely proper, as found by both the extradition judge and this court.

[7]

The Minister then reviewed the factors relating to the American charges,
    emphasizing the extent of the alleged fraud, the number of victims, and the
    fact that those victims were elderly residents of the United States.  He
    concluded:

Accordingly, I am of the view that the United
    States has a significantly greater interest in prosecuting this case and that
    it is in the interests of justice that Mr. Thamby face prosecution in the
    jurisdiction in which he is alleged to have targeted vulnerable persons who
    cannot easily travel to Canada to testify.

[8]

In our view, the Minister made no legal error in his analysis.  Nor is
    his decision unreasonable.  In his supplementary reasons, the Minister has
    properly addressed the concerns expressed by this court in its April 29, 2011
    decision.

[9]

The application for judicial review is dismissed.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

G.J. Epstein J.A.


