



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Talashkova, 2014 ONCA 74

DATE: 20140129

DOCKET: C56798 and C57542

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

The Attorney General of Canada on behalf of the
    United States of America and the Minister of Justice

Respondents

and

Marina Talashkova

Appellant/Applicant

Tyler Hodgson, for the appellant/applicant

Faiyaz Amir Alibhai and Richard Kramer, for the
    respondents

Heard: January 21, 2014

On appeal from the committal order of Justice John B.
    McMahon of the Superior Court of Justice, dated February 21, 2013, and on
    application for judicial review of the surrender order of the Minister of
    Justice dated July 24, 2013.

By the Court:

[1]

The appellant is sought for prosecution in the United States District
    Court for the Central District of California for fraud and money laundering
    offences flowing from an alleged Internet sales fraud scheme. McMahon J. denied
    her application for a stay of proceedings and found that she should be committed
    for extradition. The Minister of Justice subsequently ordered her
    surrender.  The appellant appeals the committal order and applies for
    judicial review of the surrender order. She also brings an application for the
    admission of fresh evidence.

[2]

The appellant submitted before the extradition judge and on this appeal
    that Canada Border Services Agency (CBSA) officials acted in a manner that
    violated her rights under the
Immigration and Refugee Protection Act
(
IRPA
)
    and s. 7 of the
Canadian Charter of Rights and Freedoms
. Among other
    things, she relies upon the following conduct: inquiries made by a CBSA
    official of United States officials regarding potential extradition, failure to
    ensure that she obtained a timely review of her detention, failure to afford
    her an opportunity to voluntarily withdraw from Canada, improper consideration
    of extradition as a factor in deciding whether she was inadmissible to Canada
    and the redaction of a s. 44(1) report to delete any reference to extradition.

[3]

The appellant submits that this conduct amounted to an abuse of process
    under the residual category of abuse of process identified in
R. v. OConnor
,
    [1995] 4 S.C.R. 411, and that a stay of proceedings pursuant to s. 24(1) of the
Charter
is the appropriate remedy.

[4]

The extradition judge concluded that the CBSA officials did not engage
    in any deliberate misconduct and that they had lawful grounds to find the
    appellant inadmissible to Canada pursuant to s. 36(1)(c) of the
IRPA
. He
    did have concerns about the conduct of CBSA officials involved in the case,
    specifically their violation of the CBSAs policies designed to separate
    immigration and extradition procedures. However, the extradition judge
    concluded that the appellant had not met the test for a stay.

[5]

On this appeal the appellant
    submits that
the
extradition
judge
    erred in applying the test for abuse of process by focusing on the effects of
    the abuse on trial fairness rather than the administration of justice. She also
    argues that the
extradition
judge erred
    in law in finding that bad faith for
Charter
purposes is limited to
    wilful or deliberate misconduct. Finally, the appellant submits that the
extradition
judge erred by misapprehending
the evidence on critical issues.

[6]

A stay is a remedy of last resort which will only be employed to rectify
    an abuse of process in the clearest of cases:
R v. Regan
, 2002 SCC 12,
    [2002] 1 S.C.R. 297, at para. 53. In the context of the residual category of
    abuse of process, a stay will only be justified where the alleged misconduct
    amounts to unfairness or vexatiousness of such a degree that it contravenes
    fundamental notions of justice and thus undermines the integrity of the
    judicial process:
OConnor
,

at para. 73.

[7]

As a discretionary decision, the determination of whether to grant a
    stay attracts considerable appellate deference.

Intervention is not
    justified unless the appellant can establish that the judge at first instance
    has misdirected herself or the decision is so wrong that it would amount to an
    injustice. Where the judge at first instance exercises her discretion, that
    decision cannot be replaced simply because the appellate court takes a
    different view of the facts. Rather, findings of fact should not be disturbed
    absent a palpable and overriding error in the assessment of the evidence:
Regan
,
    at paras. 117-18.

[8]

This deferential imperative is particularly pronounced in extradition
    cases, such as the case at bar, where the application judge has had the benefit
    of
viva voce
evidence. As previously noted by this court, the
    extradition judge had the opportunity to observe the witness and hear his
    testimony first hand. He was, therefore in the best position to determine the
    facts:
United States of America v. Wilson
(2002)
,
170 C.C.C.
    (3d) 527 (Ont. C.A.), at para. 47.

[9]

Contrary to the appellants submission, the fact that the extradition
    judge considered the effect of the CBSA officials conduct on the fairness of
    her immigration process does not amount to an error in law. A stay in the
    context of the residual category of abuse of process is by its nature a
    flexible remedy which requires the court to have regard to all the
    circumstances of the case. Prejudice to the accuseds rights, while not
    determinative, is a relevant part of that analysis:
R. v. Nixon
,
2011
    SCC 34, [2011] 2 S.C.R. 566, at para. 41. A consideration of the effect of the
    impugned conduct on the appellants rights was a relevant inquiry in the
    broader analysis of the impact of such conduct on public confidence in the
    administration of justice.

[10]

The appellant is correct in her submission that
wilful
    or
deliberate misconduct is not a prerequisite
    for a finding of bad faith.
Negligence or wilful blindness on the part
    of the authorities can be inconsistent with good faith, and good faith may not
    be found where authorities violate, as a result of ignorance, established legal
    norms with which they should be familiar:
R. v. Grant
, 2009 SCC 32,
    [2009] 2 S.C.R. 353, at paras. 74-75.
However,
    we are unable to accede to the submission that the extradition judge equated
    bad faith with deliberate misconduct.
His careful and thorough reasons
    demonstrate that, having regard to the evidence before him and the findings he
    made based on that evidence, he concluded that the conduct of the CBSA
    officials did not warrant the imposition of a stay.

[11]

On
    the facts as found by the extradition judge, we see no error in his
    determination that a stay should not be granted. First, the extradition judge
    found that the CBSA officials were pursuing a valid immigration purpose and had
    valid grounds to determine both that the appellant was inadmissible to Canada
    and that she should be detained pending an admissibility hearing. Second, the
    extradition judge found that the CBSA officials actions were not undertaken to
    facilitate the extradition process. Third, he found that the United States and
    the Department of Justice acted properly throughout the process. Fourth, the
    extradition judge found that the decision of the Minister of Public Safety and
    Emergency Preparedness delegate to consider the irrelevant factor of
    extradition was a result of a lack of training and was not part of a deliberate
    effort to utilize the immigration system for a disguised extradition. Fifth, he
    found that the creation of a redacted report was not intended to and did not
    result in the misleading of the appellant or the Immigration and Refugee Board
    (IRB).

[12]

These
    were all findings that were open to the extradition judge to make and we are
    not satisfied that any of these findings were tainted by a material
    misapprehension of the evidence.

[13]

Specifically,
    there was no error in the extradition judges conclusion that both versions of
    the s. 44(1) report were before the IRB. Based on our review of the record
    filed on this appeal, it appears that the impugned report was made an exhibit
    before the IRB. Moreover, in his submissions to the extradition judge, counsel
    for the appellant submitted that there was only a possibility that both reports
    were not before the IRB.

[14]

The
    extradition judge also did not err with respect to his assessment of the
    evidence regarding the problems associated with allowing the appellant to
    withdraw from Canada. The extradition judge did not find that the appellant
    could only be returned to Russia on a direct flight. Instead, he accepted that
    while there is no requirement to return a party directly to her country of
    origin, the CBSA endeavours to avoid sending people to countries where there is
    a chance that that they will be returned to Canada. It was open to the
    extradition judge to accept this evidence.

[15]

With
    respect to the issue of the CBSA officials stopping the clock on the
    appellants detention review under s. 57(1) of the
IRPA,
we see no error
    in the extradition judges conclusion that any misunderstanding on the part of
    a CBSA official regarding the operation of the 48-hour period did not play any
    role in the appellants case. The officer who misunderstood the effect of
    weekends and holidays on the 48-hour period played no role in the appellants
    detention and only became aware of her existence on January 17, 2012, at
    approximately 3:45 p.m.

[16]

We
    find no palpable and overriding error in the extradition judges assessment of
    the evidence.

[17]

At their essence, the appellant's submissions amount to an
    invitation to this court to reweigh the evidence and substitute its discretion
    for that of the extradition judge. That, of course, is not the function of an
    appellate court. This is especially true in a case such as the case at bar
    where we are reviewing the discretionary decision of a judge in his
    determination of whether this was one of the clearest of cases warranting the
    imposition of a remedy of last resort.

[18]

In
    her application for judicial review, the appellant seeks an order setting aside
    the surrender order or in the alternative requests an order for additional
    disclosure of documents to be used on a redetermination by the Minister. No
    specific arguments regarding the reasonableness of the Minsters decision were
    raised in the appellants factum or in oral submissions, and we see no basis to
    interfere with the Ministers decision. Moreover, upon our review of the
    testimony of the CBSA officials, we are not satisfied that there is any
    evidence of material non-disclosure.

[19]

Finally,
    the appellant seeks leave to adduce fresh evidence regarding the issue of
    whether there was a lockdown on January 16, 2012 at the Vanier Centre for Women
    where she was being held. The application to adduce this new evidence is denied
    for two reasons.

[20]

First,
    the appellant has not offered any adequate explanation as to why she did not
    pursue her inquiries regarding the lockdown until August of 2013, some nine
    months after the hearing of the evidence.

[21]

Second,
    this evidence could only conceivably be relevant to the stay application if the
    appellant could establish that a CBSA official knew or ought to have known that
    there was no lockdown and that he/she purposely delayed the Ministers delegate
    review with the intention of assisting the United States with its extradition
    request. The proposed evidence is not capable of supporting this assertion.
    There was no evidence at the hearing and no subsequent evidence produced to
    suggest that the officials were aware or ought to have been aware that there
    was no lockdown at the facility. Thus, the proposed evidence is not
    sufficiently cogent that it could reasonably be expected to have affected the
    decision of the extradition judge to deny the stay application, and,
    accordingly, the application for the admission of the fresh evidence is denied.

[22]

The
    appeal and the application for judicial review are dismissed.

Released: January 29, 2014 EEG

J.C.
    MacPherson J.A.


E.E. Gillese J.A.


C.W.
    Hourigan J.A. 


