



COURT OF APPEAL FOR ONTARIO

CITATION:
United
  States v. Yu, 2012 ONCA 876

DATE: 20121213

DOCKET: C54877

Doherty, Simmons and Hoy JJ.A.

IN THE MATTER OF an application for judicial review pursuant
    to s. 57 of the Extradition Act, S.C. 1999, c. 18

BETWEEN

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

Respondents

and

Kang Ming Yu

Applicant

John Norris, for the applicant

Heather J. Graham, for the respondent

Heard and released orally: December 7, 2012

On application for judicial review of the surrender order
    of the Minister of Justice, dated December 14, 2011.

ENDORSEMENT

[1]

This is an application for judicial review of the decision of the
    Minister ordering the applicant to surrender to the United States for
    prosecution on drug charges pursuant to the terms of the relevant treaty
    between Canada and the United States.  The Canadian prosecutorial authority
    exercised its discretion not to prosecute the applicant on those charges.  It did,
    however, prosecute the applicant on different substantive charges in Canada
    arising out of the same investigation.  The applicant pled guilty to those
    charges and will be surrendered for extradition once released on those charges.

[2]

The applicant argues that the Minister: (1) erred in concluding that in
    the circumstances extradition did not unjustifiably violate the applicants s.
    6(1)
Charter
rights; (2) denied the applicant procedural fairness in
    refusing to obtain and disclose the prosecutors
Cotroni
[1]
assessment; and (3) erred in concluding that extradition would not constitute
    an abuse of process and thereby violate the applicants s. 7
Charter
rights and be unjust or oppressive under s. 44(1)(a) of the
Extradition Act
(the Act).

[3]

The Ministers surrender decision under the Act is to be afforded
    substantial deference and should not be interfered with unless it is
    unreasonable.  This court must ask whether the Minister considered the relevant
    factors and whether his decision falls within range of reasonable outcomes.

[4]

We are not persuaded that the Ministers conclusion that extradition
    does not unjustifiably violate the applicants s. 6(1)
Charter
rights
    is unreasonable.  The Ministers reasons demonstrate that he considered the
    relevant factors in conducting his
Cotroni
analysis and reached a
    defensible conclusion.

[5]

In oral argument, counsel for the applicant advanced three submissions
    in support of the contention that the Ministers
Cotroni
analysis
    under s. 6(1) was flawed.

[6]

First, he argues that the Minister fell into the same error identified
    in para. 78 of
United States v.

Leonard
, 2012 ONCA 622, namely:

by positing the choice in these cases as being between
    surrender and allowing accused drug traffickers to walk free, the Minister has
    misstated and distorted the true consequences of refusing surrender

[7]

While the Ministers reasons are similar in some respects to those in
Leonard
,
    he did not make the error identified in para. 78 of
Leonard
.  The
    absence of Canadian charges with respect to the conduct was only one of the
    factors in his analysis.  He wrote:

In sum the United States significant interest in prosecuting
    this case, the location of key evidence in the United States, and the absence
    of criminal proceedings against Mr. Yu in Canada strongly militate in favour of
    surrender.  I am, therefore, satisfied that surrendering Mr. Yu to stand trial
    in the United States would not unjustifiably violate his s. 6(1)
Charter
rights.

[8]

Counsels second submission targets the Ministers observation that
    Canada does not have jurisdiction to prosecute Mr. Yu on the U.S. offence of
    conspiracy to import ketamine into the United States.  We agree with counsel
    that this observation, while technically correct, ignores the fact that it was
    open to Canada to prosecute the substance of the conduct through a charge of
    exporting.  We are satisfied, however, that this observation played no role in
    the Ministers decision to surrender.  On these facts, the United States had
    the clearly stronger interest in prosecuting the conduct, however named.

[9]

In his third submission, counsel argues that the Minister failed to
    consider that extradition to the United States would deny the applicant the
    ability to invoke the
Charter
to challenge Canadian gathered evidence
    (for example, wiretaps).  Assuming this argument might have force in the
    appropriate circumstances, there is nothing in this record to suggest that the
    Canadian gathered evidence is constitutionally suspect or that the inability to
    raise
Charter
arguments would actually disadvantage the applicant.

[10]

Nor
    are we persuaded that the Minister denied the applicant procedural fairness in
    refusing to disclose the prosecutors
Cotroni
analysis.  This court,
    in several cases, declined to order the disclosure of the prosecutors
Cotroni
analysis.  We see no reason to come to a different conclusion in this case,
    particularly as it appears that the Minister did not even look at the
    prosecutors
Cotroni
analysis.

[11]

With
    respect to the applicants final, abuse of process argument, even accepting
    that the Minister described the abuse of process doctrine too narrowly, we are
    not persuaded that an abuse of process is made out.  The test applied is
    whether surrender would shock the conscience or whether the applicant faces
    a situation that is simply unacceptable.  While the Canadian and United
    States prosecutions arose out of the same investigation, they are in respect of
    different offences, committed in different countries.  The public would, in our
    view, consider both countries as having a legitimate interest in the
    prosecution of the applicant.

[12]

This
    application is accordingly dismissed.

Doherty J.A.

Janet Simmons J.A.

Alexandra Hoy J.A.





[1]

United States of America v. Cotroni
,
    [1989] 1 S.C.R. 1469.


