





CITATION:
United States of
          America v.
Thamby
, 2011
          ONCA 333



DATE: 20110429



DOCKET: C52902 & C52261



COURT OF APPEAL FOR ONTARIO



Laskin, MacPherson and Sharpe JJ.A.



BETWEEN



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



Respondent



and



Ragavan

Thamby



Appellant



Alan D. Gold, for the appellant



Richard A. Kramer, for the respondent



Heard: April 5, 2011



On appeal from the committal order
          of Justice W. Brian Trafford of the Superior Court of Justice, dated May 18,
          2010, and reported at [2010] O.J. No. 3196, and on application for judicial
          review from the decision of the Honourable Rob Nicholson, Minister of Justice
          and Attorney General of Canada, concerning an application brought pursuant to
          s. 58 of the
Extradition Act
, S.C. 1999,
          c. 18, dated October 15, 2010.



Laskin J.A.:




A.

Overview

[1]

Ragavan

Thamby
is a Canadian citizen.  He has appealed
    an order committing him for extradition and applied for judicial review of the
    Justice Ministers order surrendering him to the United States to face fraud
    charges.

[2]

The facts giving rise to these proceedings are
    unusual.  In February 2007, Mr.
Thamby
was arrested and charged in Ontario with multiple
    counts of fraud contrary to the
Criminal
    Code
.  The Crown alleged that Mr.
Thamby
participated in a fraudulent telemarketing scheme
    operating from Canada and targeting elderly residents living in the United
    States.  His lawyer and the Crown
    prosecutor reached a plea agreement to resolve all of these charges.  The agreement was vetted and approved by a
    judge of the Ontario Court of Justice.  Mr.
Thamby
was set to plead guilty and be
    sentenced on July 24, 2009.  Had that
    happened, no extradition proceedings could have been taken against him.

[3]

However, Mr.
Thambys
case
    did not go forward on July 24.  Because
    of a clerical error, the information on which he was to plead went astray.  His case was adjourned to September 2, 2009
    so that
a replacement
information could be issued.  On August 31, two days before Mr.
Thamby
was again set to plead guilty, the Ontario
    prosecutor handling the case learned that back in June the Minister of Justice
    had issued an authority to
proceed
seeking Mr.
Thambys
extradition to the United States for the same
    conduct that founded the Ontario charges.  On September 2, the Crown prosecutor stayed the Ontario charges so that
    the extradition proceedings could go forward.

[4]

Before the extradition judge, Mr.
Thamby
accepted that the evidence against him was sufficient to warrant his
    committal.  But he argued that staying
    the domestic charges rendered the extradition proceedings an abuse of
    process.  He asked that those proceedings
    be stayed.  The extradition judge did not
    accept this argument and committed Mr.
Thamby
for
    extradition.

[5]

Before the Minister, Mr.
Thamby
renewed his abuse of process argument and also argued that surrendering him to
    the United States would unjustifiably violate his constitutional right to
    remain in Canada under s. 6(1) of the
Charter
.  The Minister rejected both arguments and
    ordered his surrender.

[6]

In this court, Mr.
Thamby
made essentially the same arguments that he had made before the extradition
    judge and the Minister.  I see no merit
    in the abuse of process argument.  However, in assessing Mr.
Thambys
claim of an
    unjustified violation of s. 6(1) of the
Charter
,
    the Minister failed to take account of the unusual facts of this case.  I would set aside the Ministers surrender
    order and remit the matter to him for reconsideration.

B.

Additional Facts

(1)

The domestic proceedings

[7]

The
    charges against Mr.
Thamby
in Ontario resulted from a
    coordinated investigation by the Federal Bureau of Investigation and Toronto
    Police Services.  The investigators
    alleged Mr.
Thamby
defrauded American residents of
    about $2 million.

[8]

The
    plea agreement was reached between May 29 and June 3, 2009.  Under the terms of the agreement, Mr.
Thamby
would have pleaded guilty to multiple counts of
    fraud and would have received a sentence of two years less a day to be served
    conditionally plus two years probation.  He would also have been subject to a restitution order of $200,000.  On July 24, 2009, Horkins J. of the Ontario
    Court of Justice approved the agreement and was ready to take Mr.
Thambys
plea.  The
    clerical error in the court office derailed the proceedings.

(2)

The United States extradition
    request

[9]

In
    mid-May 2009, the United States sent Canada a diplomatic note requesting Mr.
Thambys
extradition to face charges of conspiracy to
    commit fraud, mail fraud and wire fraud.  On June 23, 2009, the Minister of Justice issued an authority to proceed
    for the corresponding Canadian offence of fraud.

[10]

The
    conduct underlying the charges in the United States is identical to the conduct
    for which Mr.
Thamby
was charged in Ontario.  However, under United States sentencing
    guidelines, if convicted, Mr.
Thamby
faces a sentence
    of more than 15 years in prison.

(3)

The committal proceedings
    before the extradition judge

[11]

The
    committal hearing took place on May 13, 2010 before Trafford J.   As I have said, for the purpose of
    committal, Mr.
Thamby
did not contest the sufficiency
    of the evidence against him.

[12]

The
    extradition judge dismissed the stay application and committed Mr.
Thamby
for extradition.  He found no evidence the provincial Crown knew of the extradition
    proceedings before August 31, 2009.  He
    also found that the Ontario prosecutorial authorities had acted in good
    faith.  Therefore, their decision to stay
    the domestic charges was not improper.

(4)

The Ministers surrender order

[13]

On October 15, 2010, having considered Mr.
Thambys
submissions, the Minister of Justice ordered his
    surrender to the United States.  The
    Minister of Justice also found no abuse of process in staying the domestic
    charges.  He held that Mr.
Thamby
had no right to plead guilty in Canada, and merely
    because he faced a longer sentence in the United States was not a reason to
    refuse his surrender.

[14]

The Minister also held that surrendering Mr.
Thamby
to the United States would not unjustifiably violate
    his constitutional right under s. 6(1) of the
Charter
to remain in Canada.  The Minister did a 
Cotroni
assessment and concluded that surrender for
    prosecution in the United States was the most effective and appropriate option.

C.

Analysis

(1)

There was no abuse of process

[15]

But for the error in the court office, Mr.
Thamby
would have received a conditional sentence of two
    years less a day.  He now faces the
    prospect of a sentence of more than 15 years in prison.  As severe as that may be, the mere
    possibility that a Canadian citizen may face a much higher sentence if
    extradited does not turn a stay of the domestic proceedings in favour of
    extradition into an abuse of process:  see
Whitley

v. USA
(1994) 20 O.R. (3d) 794 (C.A.),
affd
[1996] 1 S.C.R. 467.
[1]

[16]

Mr.
Thambys
abuse of process
    argument must rest on showing that, in exercising their discretion to stay the
    domestic charges, the Ontario prosecutors acted in bad faith or for improper
    motives.  Trafford J. made no finding of
    bad faith or improper motives.  And there
    is no evidence to support such a finding.  Thus, both the extradition judge and the Minister were correct to reject
    Mr.
Thambys
claim of abuse of process.

(2)

In determining that extradition
    did not unjustifiably violate Mr.
Thambys
s. 6(1)
    rights, the Minister of Justice failed to consider the unusual facts of this
    case

[17]

Under s. 6(1) of the
Charter
every Canadian citizen has the right to remain in
    Canada.  In
USA v.
Cotroni
, [1989] 1 S.C.R. 1469, the
    Supreme Court of Canada held that extradition is a
prima facie
infringement of the right guaranteed by s. 6(1), but is
    justified under s. 1 of the
Charter
.  Nonetheless, in a particular case, depending
    on the facts, the extradition of a Canadian citizen to face charges abroad may
    amount to an unjustified infringement of that
citizens s.
    6(1) rights
.  Whether it does is
    for the Minister to decide:  see
USA v. Kwok
, [2001] 1 S.C.R. 532.

[18]

Typically the Minister must decide whether prosecution
    in Canada is a realistic option: see
Controni
at 1498:

Of course, the authorities must give due weight to
    the constitutional right of a citizen to remain in Canada.  They must in good faith direct their minds to
    whether prosecution would be equally effective in Canada, given the existing
    domestic laws and international cooperative arrangements.  They have an obligation flowing from s. 6(1)
    to assure themselves that prosecution in Canada is not a realistic option.

[19]

The Ministers decision is discretionary.  In exercising that discretion, the Minister
    invariably considers some or all of the factors approved of by La Forest J.
    writing for the majority in
Cotroni
at 1498-1499:

·

where was the impact of the offence felt or
    likely to have been felt,

·

which jurisdiction has the greater interest in
    prosecuting the offence,

·

which police force played the major role in the
    development of the case,

·

which jurisdiction has laid charges,

·

which jurisdiction has the most comprehensive
    case,

·

which jurisdiction is ready to proceed to trial,

·

where is the evidence located,

·

whether the evidence is mobile,

·

the number of accused involved and whether they
    can be gathered together in one place for trial,

·

in what jurisdiction were most of the acts in
    furtherance of the crime committed,

·

the nationality and residence of the accused,

·

the
severity of the
    sentence the accused is likely to receive in each jurisdiction.

[20]

The weighing and balancing of these factors have come
    to be known as a 
Cotroni
assessment.  Because a
Cotroni
assessment involves the exercise of discretion, the Ministers decision whether
    to surrender a Canadian citizen for extradition is entitled to deference from a
    reviewing court.  A court should
    interfere with the Ministers decision only if it is unreasonable:  see
USA
    v. Lake
, [2008] 1 S.C.R. 761, at para. 34.

[21]

However, before deferring to the Ministers decision,
    the court must be satisfied that the Minister carried out a proper
    analysis.  And a proper analysis requires
    consideration of the relevant facts.
LeBel
J. made this point writing for the court in
Lake
at para. 41:

The reviewing courts role is not to re-assess the relevant
    factors and substitute its own view.  Rather,
    the court must determine whether the Ministers decision falls within a range
    of reasonable outcomes.  To apply this
    standard in the extradition context, a court must ask whether the Minister
    considered the relevant facts and reached a defensible conclusion based on
    those facts.  I agree with Laskin J.A.
    that the Minister must, in reaching his decision, apply the correct legal
    test.  The Ministers conclusion will not
    be rational or defensible if he has failed to carry out the proper
    analysis.  If, however, the Minister has
    identified the proper test, the conclusion he has reached in applying that test
    should be upheld by a reviewing court unless it is unreasonable.

[22]

In the part of his reasons dealing with the abuse of
    process argument, the Minister does refer to Mr.
Thambys
submission on the plea agreement.  He
    even recognizes that this submission is closely tied to Mr.
Thambys
argument on s. 6(1) of the
Charter
.  Unfortunately, however, the Minister does not
    say anything more about this submission other than to observe that it can be
    considered by this court on the appeal from the committal order.

[23]

Thus, there is nothing in the Ministers reasons to
    show that he considered the plea agreement or the unusual facts of this case
    when he rejected Mr.
Thambys
s. 6(1) argument.  According to
Cotroni
, the Minister is required
    to consider whether prosecution in Canada is a realistic option.  Three of the
Cotroni
factors to be weighed and
    assessed are which jurisdiction has laid charges, which jurisdiction is
    ready to
proceed
to trial, and the severity of the
    sentence the accused is likely to receive in each jurisdiction.  Obviously, prosecution in Canada was a
    realistic option.  Charges were laid and
    successfully resolved.  Mr.
Thamby
would have been sentenced to two years less a day to
    be served in the community.  Now he faces
    a sentence of 15 years to be served in prison.  The harsher sentence that he now faces is a factor that militates
    against surrender:
U.S.A. v.
Ferras
; U.S.A. v.
Latty
, [2006] 2 S.C.R. 77, at para. 86.

[24]

Thus, the plea agreement and the unusual facts that
    precluded it from being implemented together with the disparity in sentences in
    the two jurisdictions are relevant to Mr.
Thambys
s.
    6(1) argument.  However, instead of
    adverting to these facts and especially to the plea agreement, which, but for
    the information having gone astray would have put an end to the extradition
    proceedings, the Minister simply said:

As Minister of Justice acting under section 40 of
    the Act, my role in the extradition process is essentially political in nature
    (
United States v. Kwok
,
supra
;
Lake v. Canada (Minister of Justice)
,
supra
).  As such, I will not
    interfere with the exercise of discretion not to prosecute Mr.
Thamby
, nor do I have the authority to direct the relevant
    investigative authorities to pursue an investigation or lay charges against
    him.

And:

Based on the fact that charges were originally laid
    in Canada, there can be no doubt that a Canadian prosecution was possible in
    this case.  I accept the finding of the
    extradition judge that the Canadian authorities properly exercised their
    discretion to stay Mr.
Thambys
domestic charges in
    favour of prosecution in the United States.  I can see nothing improper in these circumstances in this matter being
    prosecuted in the United States and I am particularly mindful that the crucial
    evidence of the elderly victims is located in the United States.  The Canadian evidence, though considerable,
    consists primarily of seized records and the evidence of the Canadian
    investigators and is more easily transportable to another jurisdiction for
    trial than is the evidence of the alleged victims.

Although Mr.
Thamby
was
    arrested in Canada and charged, there are no Canadian criminal proceedings
    pending against him.  By contrast, there
    are charges pending against Mr.
Thamby
in the United
    States District Court for the Southern District of Texas and his extradition
    has been sought from Canada.  In the
    absence of charges against Mr.
Thamby
in Canada, in
    my view, the principles enunciated in
Cotroni
,
supra
,
    applied to the facts of this case combined with Canadas treaty obligations
    make surrender for prosecution in the United States the most effective and
    appropriate option in this case.

[25]

Respectfully, these reasons include a considerable
    amount of boiler plate language but very little about Mr.
Thambys
actual circumstances and, as I have already mentioned, they say nothing about
    the plea agreement that was reached with the Ontario prosecutors, approved by
    an Ontario judge and set to be implemented.

[26]

Whether these circumstances ought to dictate a
    different result is not for me to say. Certainly, the Minister identified some
    relevant considerations warranting surrender, such as the harm having occurred
    to elderly victims in the United States. But Mr.
Thamby
is entitled to have the Minister weigh all of the relevant considerations
    favouring a domestic prosecution when exercising his discretion whether to make
    a surrender order.  From Mr.
Thambys
perspective, the extradition proceedings were
    unexpected, occurred at the very last moment and yet may have an enormous
    impact on his life.  On these unusual
    facts he is entitled to know why he cannot conclude his plea agreement in
    Canada.

D.

Conclusion

[27]

I
    would dismiss the appeal from the committal order.  I would allow the application for judicial
    review and remit the matter to the Minister for reconsideration.

RELEASED:  Apr. 29,
    2011
JL

John
    Laskin J.A.
I
    agree J.C. MacPherson J.A.
I
    agree Robert J. Sharpe J.A.





[1]
A more
    severe sentence in the foreign jurisdiction may be relevant to the Ministers
    surrender decision.  See para.
23 of these reasons.


