



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



United
                States of America v. Reumayr,









2005 BCCA
            34




Date: 20050120




Docket: CA032101

Between:

Alfred
      Heinz Reumayr

Applicant



And

Canada
      (Minister of Justice)

Respondent













Before:



The Honourable
            Madam Justice Rowles





(In Chambers)









A.H. Reumayr



Appearing on his own behalf





D.J. Strachan



Counsel for the Respondent





Place and
            Date of Hearing:



Vancouver, British Columbia





2 December 2004





Place and
            Date of Judgment:



Vancouver, British Columbia





20 January 2005







Reasons for Judgment of the Honourable Madam Justice
        Rowles:

[1]

Mr.
      Alfred Heinz Reumayr has applied for an extension of time within which
      to bring appeals from three orders made in the course of extradition proceedings
      against him.  The first two orders, dated 25 October 1999 and 1 December
      1999, extended the time within which the Requesting State could deliver
      its supporting documents.  The third order, dated 31 October 2001, was
      the committal order made by Williamson J.

[2]

Mr.
      Reumayr's appeal from the committal order was dismissed on 26 June 2003
      in
U.S.A. v. Reumayr
, 2003 BCCA 375, 176 C.C.C. (3d) 377
      (cited to C.C.C.), but his application for judicial review of the surrender
      order was allowed "to the extent of directing that the surrender be
      set aside and the matter remitted back to the Minister to determine whether
      the surrender order is consistent with the committal order in accordance
      with these reasons" (at 396).

[3]

On
      23 August 2004, Mr. Reumayr filed an appeal from the orders made by Macaulay
      J., Dohm A.C.J. and Williamson J. as well as applications for a discharge,
      a stay of proceedings,
habeas corpus
, prohibition, certiorari and
      a Notice of Constitutional Question.  In seeking both an extension of time
      within which to appeal the orders and leave to appeal, Mr. Reumayr submits
      that the time limits set out in s. 14 of the
Extradition Act
,
      S.C. 1999, c. 18 ("
Act
") cannot be judicially extended
      after their expiry and the orders extending the time, as well as the committal
      order, are therefore nullities.  To support his argument, Mr. Reumayr relies
      on the mandatory wording of s. 14 of the
Act
and, among other
      cases, the decision of this Court in
United States v. Manns
,
      2004 BCCA 158, 183 C.C.C. (3d) 330.

[4]

The
      respondent's position may be summarized as follows:

(a)        the orders Mr. Reumayr now wishes
      to appeal are all superseded by this Court's dismissal of the appeal from
      the committal order;

(b)        this Court has no jurisdiction
      to reopen the appeal from the committal order to entertain Mr. Reumayr's
      new argument because the formal order has been entered; and

(c)        Mr. Reumayr has, in any event, failed to demonstrate a clear
      and compelling case that a miscarriage of justice will result unless the
      point he now wishes to raise is permitted to go forward to appeal.

[5]

By
      way of background, Mr. Reumayr is charged in the United States District
      Court for the District of New Mexico with attempting to bomb the Trans-Alaska
      Pipeline by means of explosive devices, and aiding and abetting in the
      attempted bombing, in violation of Title 18,
United States Code
,
      sections 844(i), 1366(a), 2332b, and 2.  The charges stem from an investigation
      conducted by the R.C.M.P. and the United States Bureau of Alcohol, Tobacco
      and Firearms (the "ATF").  Mr. Reumayr allegedly planned to detonate
      numerous bombs along the Trans-Alaska oil pipeline on or about New Year's
      Day, 2000 with financial gain as his motive.  His plan was to purchase
      large amounts of oil futures contracts on the commodities market before
      the bombing.  Once the pipeline was damaged, Mr. Reumayr hoped that the
      supply of crude oil in the market would decrease, the price of his oil
      commodities contracts would rise, and that he would reap a substantial
      profit by selling his oil contracts.

[6]

It
      is alleged that in order to carry out his plan, Mr. Reumayr contacted James
      Paxton, a former member of the U.S. Special Forces and an expert in explosives,
      whom he had met when they were both inmates at a prison in Seagoville,
      Texas.  Mr. Reumayr sought to enlist Mr. Paxton's help in obtaining blasting
      caps.  Subsequently, Mr. Paxton told the ATF about Mr. Reumayr's requests
      for blasting caps, which caused the ATF to begin an investigation into
      Mr. Reumayr's plan.  Mr. Paxton, now working as an agent for the ATF, entered
      into correspondence with Mr. Reumayr over several months, which culminated
      in two meetings between them in July and August 1999 at hotels in the Lower
      Mainland area of British Columbia.  At this point, Mr. Paxton had also
      become an agent for the R.C.M.P.  During these meetings, Mr. Reumayr gave
      Mr. Paxton a quantity of explosives and bomb components.  The two men discussed
      extensively the technical details of Mr. Reumayr's plan to bomb the pipeline.

[7]

On
      18 August 1999, the R.C.M.P. arrested Mr. Reumayr when he returned to Mr.
      Paxton's hotel room for a third meeting.  Charges were laid against him
      by both the Attorney General of British Columbia and the United States
      Attorney in the District of New Mexico.

[8]

A
      provisional request for extradition was subsequently made by the United
      States pursuant to the
Treaty on Extradition Between Canada and the
      United States of America
, Can. T.S. 1976, No. 3, as amended (the "
Treaty
").

[9]

On
      20 August 1999, a provisional warrant for Mr. Reumayr's arrest was issued
      under the
Act
.  The warrant was executed on 24 August 1999
      at the North Fraser Pretrial Centre where Mr. Reumayr was being held on
      the domestic charges.  He was brought before the Supreme Court of British
      Columbia in New Westminster and remanded over to 26 August to appear in
      Supreme Court in Vancouver.

[10]

As
      of 24 August 1999, the United States had 60 days within which to present
      its formal request for extradition and supporting documents.

[11]

On
      25 October 1999, counsel for the United States of America applied under
      s. 14 of the
Act
to extend the time for the United States
      to provide documents in support of the extradition request.  Mr. John Banks,
      who was then counsel for Mr. Reumayr, took no position on the application.  On
      25 October 1999, an order was made by Macaulay J. that the date by which
      the United States authorities were to provide documents in support of the
      request for the extradition of Mr. Reumayr was extended to 23 November
      1999.

[12]

On
      1 December 1999, counsel for the United States brought a second application
      to extend the time in which to provide supporting documents.  That application
      was opposed by Mr. Banks but a further extension was granted by Dohm A.C.J.
      to 17 December 1999.

[13]

On
      10 December 1999, the United States provided its supporting documents.

[14]

On
      10 January 2000, the Minister of Justice issued an authority to proceed
      ("ATP") under the provisions of the
Act
, in which
      the corresponding Canadian offences were set out as follows:

a)         possession
      of an explosive substance contrary to section 82(1) of the
Criminal
      Code
of Canada;

b)         possession
      of materials with intent to cause the explosion of explosive substances
      contrary to section 81(1)(a) of the
Criminal Code
of Canada;

c)         attempt
      arson contrary to sections 433 and 463(d) of the
Criminal Code
of
      Canada;

d)         attempt
      mischief contrary to sections 430 and 463(d) of the
Criminal Code
of
      Canada.

[15]

On
      16 March 2000, Mr. Reumayr applied for judicial interim release on the
      extradition matter before Oppal J. (as he then was) who detained him on
      both the primary and secondary grounds.

[16]

On
      3 April 2000, the domestic charges were stayed by the Attorney General
      of British Columbia.

[17]

On
      15 September 2000, on an application for a 90 day bail review, Baker J.
      continued his detention on both the primary and secondary grounds.

[18]

At
      the commencement of the extradition hearing before Williamson J., counsel
      for the Attorney General of Canada filed the ATP as an exhibit.  The ATP
      gives the superior court jurisdiction to conduct a hearing pursuant to
      s. 24(1) of the
Act
.  Mr. Reumayr did not raise any issue
      as to the lawfulness of his custody at that time.

[19]

On
      30 October 2001, after a lengthy hearing, Williamson J. committed Mr. Reumayr
      for surrender pursuant to s. 29(1) of the
Act.
He found
      that Mr. Reumayr's conduct, if it occurred in Canada, would amount to the
      first two offences set out in the ATP, but that the evidence did not establish
      the attempt offences.  Mr. Reumayr was represented by counsel, Mr. Mark
      Jetté, throughout the hearing.

[20]

On
      23 May 2002, the Minister ordered Mr. Reumayr's surrender on all the outstanding
      American charges.  Mr. Reumayr then brought both an appeal from committal
      and an application for judicial review.

[21]

As
      noted above, on 26 June 2003, this Court dismissed the appeal from the
      committal order.  Mr. Reumayr was represented by Mr. Jetté on the appeal
      and the application for judicial review.  One of the issues raised was
      pre-hearing delay, but that point was dismissed because this Court was
      of the view that Williamson J. had adopted the correct approach in dismissing
      the application for a stay of proceedings at first instance.  The primary
      issue on the application for judicial review was whether, in view of the
      findings of Williamson J. on the corresponding Canadian offences (the issue
      of dual criminality), Mr. Reumayr could be surrendered to face the American
      attempt charges or whether he could be surrendered to face only the possession
      of explosive devices charges.  This Court decided that the terms of the
      surrender order did not appear to be consistent with the committal order
      and remitted the matter to the Minister for reconsideration.

[22]

Mr.
      Reumayr subsequently brought an application under s. 69 of the
Act
for
      an order that he be discharged from custody on the ground that the Minister
      of Justice had not made an order of surrender within the time limit prescribed
      in the
Act
.  Alternatively, Mr. Reumayr applied for
habeas
      corpus
on the ground that his continued detention was unlawful and
      constituted a violation of his rights under s. 7 of the
Charter
.  On
      16 June 2004, in
Reumayr v. Canada (Minister of Justice)
,
      2004 BCSC 808, Garson J. dismissed Mr. Reumayr's application.

[23]

On
      2 July 2004, Mr. Mark Jetté, counsel for Mr. Reumayr, sought a reconsideration
      by the Minister on the basis that, among other things, there has been unreasonable
      delay such that an order of surrender would now be contrary to s. 7 of
      the
Charter
.

[24]

On
      21 July 2004, Mr. Reumayr filed an appeal of the decision of Garson J.,
      an application for judicial review pursuant to s. 57(6), a renewed application
      for discharge pursuant to s. 69, an application to stay the proceedings,
      and an application for an expedited hearing.

[25]

On
      9 November 2004, the Minister rendered his second decision, surrendering
      the appellant to face all of the charges on the American indictment, including
      the attempt charges.

[26]

The
      appeal from the orders made by Garson J. is now set to be heard by this
      Court on 18 January 2005.

[27]

With
      that background, I turn now to the applications before me.

[28]

While
      represented by counsel on other matters, Mr. Reumayr is acting on his own
      behalf on his application to extend the time within which to appeal the
      orders of Macaulay J. and Dohm A.C.J. made in 1999 and the committal order
      of Williamson J. made in 2001.  His argument that the interlocutory orders
      and the subsequent committal order are nullities is being raised for the
      first time on this application.

[29]

It
      is Mr. Reumayr's submission that the time limits set out in s. 14 of the
Act
cannot
      be judicially extended after their expiry.  He argues that
USA v.
      Manns
,
supra
, among others, supports his argument.  The
      following facts, as stated in his written brief, are relevant to Mr. Reumayr's
      submissions:

[1]        On 16 August 1999, a provisional warrant for arrest of the
      appellant was sought by the United States, and authorized by the Attorney
      General.  (The exact same body of conduct grounded both the Canadian and
      U.S. charges.)

[2]        The appellant was arrested on domestic charges, on August
      18, 1999 and remanded into custody.

[3]        The provisional warrant for arrest was issued by Dohm J.,
      of the BC Supreme Court, on August 20, 1999, while appellant was in custody.

[4]        The provisional
      warrant of arrest was served on appellant on August 24, 1999.

[5]        The Minister
      applied on October 25, 1999, on behalf of the Requesting State, for an
      extension of time pursuant to s.14(2) of the
Extradition Act
in
      which to deliver the Supporting documents.  The Court extended the time
      until November 23, 1999. Appellant's counsel took no position on the matter,
      at this application.

[6]        The Requesting
      State failed to meet the extended deadline and the Minister applied on
      December 1, 1999, for a second extension.

[7]        The Court
      extended the time until December 17, 1999, but this extension was opposed
      by appellant's counsel.

[8]        Supporting
      documents were certified by the Requesting State on December 10, 1999.

[30]

Mr.
      Reumayr relies on provisions in both the
Treaty
and the
Act
to
      support his arguments.  Article 11, paragraph (3), as amended, of the
Treaty
reads
      as

follows:

(3)        A person
      arrested shall be set at liberty upon the expiration of sixty days from
      the date of arrest pursuant to such application if a request for extradition
      and the documents specified in Article 9 have not been received. This stipulation
      shall not prevent the institution of proceedings with a view to extraditing
      the person sought if the request and documents are subsequently received.

[31]

The
      applications made in the Supreme Court to extend the time for the United
      States to provide documents in support of the extradition request were
      made under s. 14 of the
Act.
That section provides:

14.(1)    A person who has been provisionally arrested, whether detained
      or released on judicial interim release, must be discharged

(
a
)        *
      * *

(
b
)        if
      the provisional arrest was made pursuant to a request made under an extradition
      agreement that contains a period within which a request for extradition
      must be made and the supporting documents provided,

(i)   when the
      period has expired and the extradition partner has not made the request
      or provided the documents, or

(ii)   when the
      request for extradition has been made and the documents provided within
      the period but the Minister has not issued an authority to proceed before
      the expiry of 30 days after the expiry of that period; or

(
c
)        *
      * *

(2)        On application of the Attorney General, a judge

(
a
)        may
      extend a period referred to in subsection (1); or

(
b
)        *
      * *

(3)
In
      extending a period under subsection (2), the judge may also grant the person
      judicial interim release or vary the conditions of their judicial interim
      release.

[32]

Mr.
      Reumayr points out that the Minister did not apply for an extension of
      time to produce the necessary supporting documentation until after the
      60-day period set out in the
Treaty
had expired.  He further
      points out that the time period in which supporting documentation must
      be delivered by the requesting state had expired before both the first
      and second extensions of time were granted by Macaulay J. and Dohm A.C.J.
      respectively.  The result, in Mr. Reumayr's submission, is that he was
      entitled to be discharged pursuant to s. 14(1)(b)(i) of the
Act
after
      the time period for producing supporting documents had elapsed.

[33]

Mr.
      Reumayr relies on the mandatory wording of
s.
      14(1)(b)(i)
: "
A person who has been
      provisionally arrested, whether detained or released on judicial interim
      release,
must
be discharged," when, in the case of a treaty
      request, the formal extradition request and the documents required for
      the extradition hearing have not been provided within the time limit prescribed
      by the
Treaty
.  He submits that the decision in
USA
      v. Manns
,
supra
, is analogous and supports his argument.

[34]

In
United
          States v. Manns
,
supra
, this Court determined that an
          authority to proceed had not been issued until the day following the
          expiry of the time period in which it was to be made, and held that
          the appellant was therefore entitled to be discharged.  The sections
          under consideration in
Manns
were s. 15 and s. 14(1)(b)(ii)
          of the
Act
which provide:

15.(1)    The Minister may, after receiving a request for extradition
      and being satisfied that the conditions set out in paragraph 3(1)(
a
)
      and subsection 3(3) are met in respect of one or more offences mentioned
      in the request, issue an authority to proceed that authorizes the Attorney
      General to seek, on behalf of the extradition partner, an order of a court
      for the committal of the person under section 29.

14.(1)    A person who has been provisionally arrested, whether detained
      or released on judicial interim release, must be discharged

(
a
)        *
      * *

(
b
)        if
      the provisional arrest was made pursuant to a request made under an extradition
      agreement that contains a period within which a request for extradition
      must be made and the supporting documents provided,

(i)   * * *

(ii)   when the
      request for extradition has been made and the documents provided within
      the period but the Minister has not issued an authority to proceed before
      the expiry of 30 days after the expiry of that period; ...

[35]

In
Manns
,
      the extradition judge had considered whether Mr. Manns was entitled to
      be discharged on the ground that the ATP had not been issued within the
      prescribed time limit.  In considering this question, the extradition judge
      engaged in an interpretation pertaining to the precise number of days that
      had elapsed in the relevant period.  In doing so, he applied the
Interpretation
      Act
, R.S.C. 1985, c. I-21, and concluded that the authority to
      proceed has been issued within the requisite time.  In allowing the appeal,
      Smith J.A. analyzed the relevant provisions of the
Interpretation
      Act
and determined that the extradition judge had misinterpreted
      that Act, and the error had led him to miscalculate the pertinent date
      on which the time period had expired.  What the Court considered to be
      the correct application of the Act led to the conclusion that the authority
      to proceed had been issued one day after the expiry of the time period
      and, on that basis, held that the appellant was entitled to be discharged.

[36]

While
      Mr. Reumayr's argument on the point he raises may have merit, I am not
      persuaded that this is a case in which an extension of time within which
      to appeal the three orders ought to be granted.

[37]

In
      Elaine F. Krivel, Q.C.
et al.
,
A Practical Guide to Canadian
      Extradition
, (Toronto: Carswell, 2002) the authors note that s. 14
      is unique to the new
Extradition Act
and that no comparable
      section existed in the earlier legislation.  As to the significance of
      the new provision, the authors state, at 73,
§
3.0:

The negotiated terms of the treaties with respect to the time periods
      within which the formal request and supporting materials are to be provided
      continue to apply.  However, the Act has modified the operation of the
      treaty terms by providing that the time periods may be extended on the
      order of a judge.

[38]

The
      authors go on to discuss the purpose of the new section, at 74,
§
4.0:

The purpose
      of s. 14 is to implement safeguards and impose time limits on the duration
      of provisional arrest given its exceptional nature.  Provisional arrest
      is exceptional because it allows for the arrest of a person in urgent or
      other pressing circumstances without Canada actually having received the
      extradition request from the requesting state.  As well, the application
      for the provisional arrest is made without having the benefit of the complete
      record which will be supplied in support of the extradition request.  Section
      14 places limits upon the length of time that a person can remain subject
      to extradition proceedings prior to receipt of the formal extradition request,
      the documentation for use at the hearing, and the authority to proceed.  The
      section is flexible, however, in that it permits the time periods to be
      extended by a judge.  The authority to extend the time periods in favour
      of the requesting state is balanced by the provision that allows the judge
      to grant or vary judicial interim release orders.

[39]

One
      of the aims of s. 14 appears to be to avoid permitting a person who has
      been provisionally charged to languish in custody.  This aim or factor
      was discussed in
United States v. Drysdale
(2000), 32 C.R.
      (5
th
) 163, [2000] O.J. No. 214 (Q.L.) (Ont. S.C.J.),
per
Dambrot
      J, aff'd on other grounds at (2004), 21 C.R. (6
th
) 386, 183 C.C.C. (3d) 133 (
sub. nom
.
United
      States of America v. Manningham
) (Ont. C.A.):

[65]       Finally,
        on this issue, I note that s. 14(2) of the
Act
permits a judge
        to extend a period referred to in s. 14(1).  If necessary, I would extend
        the
period in this case to September 21, 1999,
nunc pro tunc
,
        if I have the authority to do so.  The Applicants contend, however, that
        s. 14(2) only permits a judge to extend the time for issuing an authority
        to proceed before the expiration of the statutory period.  There is much
        force to this argument.  Where the framers of this statute intended to
        permit extensions of time to be made after the expiry of a statutory
        time limit, they used explicit language to accomplish that end.  In this
        regard, I refer to s. 50(2) and s. 57(3) of the
Act
.  Moreover,
        given that s. 14(2) entitles a fugitive to be discharged and set at liberty
        at the expiration of a certain period of time should certain acts not
        be done, it is not illogical that there be no power to extend the time
        after the right to be discharged has accrued. In any event, however,
        in light of my earlier conclusions, the application for discharge is
        refused.

[40]

In
Drysdale
,
      Dambrot J. was of the view that the extensions of time that can be granted
      under s. 14(2) are available only where the initial period has not elapsed.  On
      appeal, however, that issue was not directly considered. Instead, the Ontario
      Court of Appeal considered the question of whether the time periods set
      out in s. 14 applied to the case, given that the provisional arrest of
      the person sought had taken place before the
Act
came into
      effect.

[41]

There
      are several Ontario superior court decisions which have permitted extensions
      of time where the extension was sought after the period set out in s. 14(1)
      had expired:
Germany v. Schreiber
, [1999] O.J. No. 5297 (Q.L.)
      (Ont. S.C.J.),
per
Hamilton J.;
Romania v. Oeffner
,
      (1 December 2000), unreported (Ont. S.C.J.), 2000 CarwsellOnt 6166
per
Dunnet
      J.; and
Kocsis v. Hungary (Republic)
(7 October 1999), unreported
      (Ont. S.C.J.), 1999 CarswellOnt 5456
per
Ewaschuk J.

[42]

The
      reasoning in those cases, if applied in this case, would not support Mr.
      Reumayr's arguments.

[43]

Overall,
      I agree with the respondent's submissions that the orders Mr. Reumayr now
      wishes to appeal have been superseded by this Court's decision dismissing
      the appeal from the committal order and remitting the matter to the Minister
      to reconsider the terms of the surrender order.  When the appeal from the
      committal order was taken, Mr. Reumayr was obliged to bring all points
      he wished to appeal forward at that time.  To hold otherwise would undermine
      the principle of finality in litigation.  Moreover, this Court has no jurisdiction
      to reopen the appeal from the committal order because the formal order
      has been entered.

[44]

It
      is also my view that Mr. Reumayr has not presented a compelling case that
      a miscarriage of justice will result if he is not able to put forward his
      new argument on an appeal.  At the time the orders were made by Macaulay
      J. and Dohm A.C.J., Mr. Reumayr was also in custody on the domestic charges.  In
      view of the fact that he was in custody on the domestic charges, there
      was no prejudice to him in allowing the United States additional time to
      present its request and supporting documents.  Mr. Reumayr did not apply
      for bail on either the domestic charges or on the extradition matter until
      March 2000, at which time he was detained.  His subsequent application
      for release before Baker J. was denied.  Thus, at the commencement of the
      extradition hearing, the applicant was lawfully in custody before the court.

[45]

Mr.
      Reumayr was represented by counsel at the extradition hearing and on the
      appeal and the application for judicial review.  The appeal and the application
      for judicial review dealt with the arguments on the merits of the request.

[46]

Apart
      from the application of the principle of finality, Mr. Reumayr's submissions
      overlook Article 11, paragraph (3) of the
Treaty
which provides
      that even if a person arrested is set at liberty upon the expiration of
      60 days from the date of arrest, "[t]his stipulation shall not prevent
      the institution of proceedings with a view to extraditing the person sought
      if the request and documents are subsequently received."  Section
      4 of the
Act
carries that Article into effect by providing
      that
the discharge of a person under the
Act
does
      not preclude further proceedings, whether or not they are based on the
      same conduct, with a view to extraditing the person under the
Act
unless
      the judge is of the opinion that those further proceedings would be an
      abuse of process.  Section 4 provides:

4.         For greater certainty, the discharge of a person under this
      Act or an Act repealed by section 129 or 130 does not preclude further
      proceedings, whether or not they are based on the same conduct, with a
      view to extraditing the person under this Act unless the judge is of the
      opinion that those further proceedings would be an abuse of process.

[47]

Even
      if Mr. Reumayr would have been entitled to a discharge, if the issue had
      been raised in a timely way, there does not appear to be any reason why
      further proceedings would have been precluded in this case.

[48]

In
      the circumstances, I am of the view that no miscarriage of justice has
      resulted, even if Mr. Reumayr would have been entitled to be discharged
      because of the failure of the requesting state to meet the time requirements
      under the
Treaty
and the
Act
.

[49]

Accordingly,
      I would dismiss the application for an extension of time to appeal the
      three orders.  With the dismissal of the extension application, the applications
      for leave to appeal the orders must also fail.

The Honourable Madam Justice Rowles


