



COURT OF APPEAL FOR ONTARIO

CITATION:
United States of
    America v. Nguyen, 2012 ONCA 58

DATE: 20120130

DOCKET: M40855 (C53423 and C54538)

OConnor A.C.J.O., MacPherson J.A. and OConnor
    J. (
ad hoc
)

IN THE MATTER
    OF an appeal by the Applicant of his committal for extradition;

AND IN THE
    MATTER OF an application for judicial review of the Ministers decision on
    surrender;

AND IN THE
    MATTER OF an application pursuant to section 683(1) of the
Criminal Code
;

BETWEEN

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

Respondent

and

Dung Ngoc Nguyen

Appellant/Applicant

Kim Schofield and Zachary Kerbel, for the applicant

Richard Kramer, for the respondent

Heard and released orally: January 26, 2012

ENDORSEMENT


[1]

The applicant Dung Ngoc Nguyen brings this motion for the
    production of documents, to cross-examine the certifying U.S. attorney, and to
    examine the applicants counsel at first instance.  All of this relief is
    sought to explore paragraph 10 of the Record of the Case which, the applicant
    asserts, is untruthful.  The key sentence in this paragraph is: Canadian law
    enforcement officers are expected to testify that DUNG NGOC NGUYEN has a
    history of trafficking drugs in Canada.

[2]

The applicant states that this sentence is false because,
    although she was charged with drug trafficking offences in 2005, the charges
    were withdrawn after the trial judge made a
Charter
ruling excluding
    evidence.  The applicant submits that inclusion of the impugned statement in
    the ROC constitutes an abuse of process.  The relief sought in the motion is
    designed to obtain information about the impugned statement so that the
    applicant can develop an abuse of process argument for her appeal of the committal
    order of the Thorburn J. and her judicial review of the Ministers surrender
    decision.

[3]

We do not accept this submission.  There is no air of reality to
    the applicants assertion that the requesting state deliberately attempted to
    mislead Canadian courts.  The applicant concedes that there was no attempt to
    hide the withdrawal of the earlier Canadian charges; in fact, this was
    disclosed during the initial application for her extradition arrest warrant.

[4]

In addition, neither the applicants previous counsel (at the
    committal stage) nor her current counsel (at the surrender stage) sought
    disclosure or production relating to this issue.  The current motion is a very
    late-developing contention in the extradition process.  Indeed, the information
    in paragraph 10 is completely unconnected to the facts which gave rise to the
    charges that are the subject matter of this extradition request.

[5]

Finally, the committal judge did not rely on the information in
    the impugned paragraph in making her committal decision.  As for the Minister,
    he carefully addressed the issue on the basis of the record before him and
    stated you have provided no evidence to suggest that the United States was
    attempting to mislead by including this information in its materials.  The
    record supports this observation.

[6]

As an alternative argument, the applicant seeks an order that the
    applicants prior counsel attend for examination in relation to an allegation
    of ineffective assistance of counsel.  On the basis of this record, including
    previous counsels oral submissions and factum at the committal hearing and his
    letter to Ms. Schofield dated January 16, 2012, we see no basis for making such
    an order.

[7]

The motion is dismissed.

Dennis OConnor A.C.J.O.

J.C. MacPherson J.A.

OConnor J. (ad hoc)


