Disguised Extradition

Meurrens LawInadmissibility

Extradition and deportation are two different things.  Extradition is the official process whereby one country transfers a suspected or convicted criminal to another country, generally for prosecution.  Deportation, on the other hand, is the removal of an individual from a country generally done for the purpose of achieving an immigration objective.  In Roncarelli v. Duplessis, [1959] S.C.R. 121, the Supreme Court of Canada (the “SCC”) recognized that it was an abuse of process for a government department to exercise a statutory power for a reason that is unrelated to the purpose for which that power was granted.  In the immigration context, it is accordingly an abuse of process for immigration authorities to initiate removal proceedings against an individual to extradite someone.

In United States v. Rogan, 2014 BCSC 116 (“Rogan”), Justice Fish summarized the principles of what is known as “disguised extradition” as follows: (Citations and paragraph numbers removed)

Deportation and extradition have fundamentally different underlying objectives. Deportation is a discretionary decision made by Canadian immigration authorities aimed at protecting the public good. Extradition, which is initiated by foreign authorities, is aimed at delivering a person sought for prosecution to that foreign authority.

A person subject to extradition proceedings has a panoply of constitutionally-enshrined protections not available to a person subject to an IRPA admissibility hearing. For example, a person ordered extradited is immune from prosecution in the requesting state for offences that have not been identified in the surrender order. By contrast, there are no restrictions on what a deported person can be prosecuted for once removed from Canada.

The essence of a “disguised extradition” claim is that removal proceedings were not instituted to pursue a valid immigration objective, but to procure, on behalf of a foreign state, a person’s return for prosecution.

A heavy onus rests on the party advancing a disguised extradition claim to establish, on clear and convincing evidence, that deportation proceedings were a mere artifice, sham, façade or device to achieve the ulterior objective of extradition.

In the face of such a claim, it is open to the Court to inquire whether the conduct of government reflects good faith pursuit of a legitimate Canadian immigration objective, or bad faith utilization of the power to deport for the collateral purpose of surrendering a person to a foreign state for prosecution. To succeed with a claim of disguised extradition, a person must first demonstrate that the Minister did not genuinely consider it to be in the public interest to expel the person in question in pursuit of a legitimate Canadian immigration objective.

Where, as in this case, a stay of proceedings is sought, the remedy will only be granted in the clearest of cases where the conduct at issue so shocks the conscience of the community that preservation of the integrity of the justice system requires termination of the proceedings by judicial order.

Given the high bar erected by the governing tests, it has been said that “disguised extradition” claims will succeed only in extremely rare cases.

The Purpose the Immigration Proceedings

As demonstrated in the summary above, what generally matters is the purpose of the government officials in initiating removal proceedings.  Canadian courts often cite the following passage from Lord Denning in R v. Brixton Prison (Governor), [1962] 3 All E.R, as endorsed by the SCC in Moore v. Minister of Manpower and Immigration, [1968] S.C.R. 839:

So there we have in this case the two principles:  on the one hand the principle arising out of the law of extradition under which the officers of the Crown cannot and must not surrender a fugitive criminal to another country at its request except in accordance with the Extradition Acts duly fulfilled;on the other hand the principle arising out of the law of deportation, under which the Secretary of State can deport an alien and put him on board a ship or aircraft bound for his own country if he considers it conducive to the public good that that should be done.  How are we to decide between these two principles?  It seems to me that it depends on the purpose with which the act is done.  If it was done for an authorized purpose, it was lawful.  If it was done professedly for an authorized purpose, but in fact for a different purpose with an ulterior object, it was unlawful.  If, therefore, the purpose of the Home Secretary in this case was to surrender the applicant as a fugitive criminal to the United States of America, because they had asked for him, then it would be unlawful; but if his purpose was to deport him to his home country because he considered his presence here to be not conducive to the public good, then his action is lawful.

Evidence of Disguised Extradition

Whether a removal proceeding amounts to a “disguised extradition” is very fact specific.  In Rogan, Justice Fish listed the following four reasons as for why in that case there was an air of reality to the “disguised extradition” claim:

  • several FOSS entries reflect CBSA’s pre-occupation with the concern that Mr. Rogan would not be returned to the United States for prosecution purposes if immigration authorities continued to admit and allow him to remain in Canada;
  • [Enforcement Officer] Papp’s email of May 9, 2008 reflects his expectation that a s. 44 report would be written in three or four weeks, despite the fact that, by his own admission, he had no specific information until May 23, 2008 that criminal charges would be laid against Mr. Rogan in the United States;
  • Papp’s rationale for proceeding with the s. 44 reports on May 23, 2008 as reflected in his Highlights report and, specifically, the extent to which the s. 44 reports appear to be based not on the conduct underlying the criminal charges filed in United States, but on the civil suit, the amount of money Mr. Rogan owed the U.S. government, and the adverse findings of fact and credibility made against Mr. Rogan in the civil proceeding – considerations Papp previously concluded would not make Mr. Rogan inadmissible under s. 36 of the IRPA; and
  • [Hearings Officer] Zuck’s suggestion, adopted by [Enforcement Officer] Fast, that two additional s. 44 reports subsequently be prepared based on the factual findings made in the civil proceeding – circumstances which Papp considered but ultimately rejected as the foundation for reasonable grounds to believe that Mr. Rogan was inadmissible to Canada under s. 36 of the IRPA.

In United States v. Wilson, 2013 ONSC 779, meanwhile, the close timing between an arrest warrant in the United States and an inadmissibility report being prepared in Canada raised the notion of an “air of reality” to he possibility that the removal proceedings were a disguised extradition.  Justice Hainey wrote:

The timing and circumstances of the formal commencement of criminal proceedings against Mr. Wilson in the United States and the initiation of deportation proceedings against him in Canada raise a realistic possibility that the Canadian deportation proceedings resulted from communications with the US authorities. The immigration arrest warrant was issued in Canada the day after the criminal complaint and arrest warrant were issued in the United States.

Further, the criminal complaint and arrest warrant were issued in the United States two days after Mr. Wilson left the United States and entered Canada. The FBI investigation of Mr. Wilson had been ongoing for over a year at this point

I find that the very close timing of these events raises a realistic possibility that there may have been communications between officials in Canada and the United States concerning Mr. Wilson’ return to the United States to face the outstanding charges. I therefore find that the requested disclosure could be relevant to Mr. Wilson’s allegation that the deportation proceedings were, in fact, disguised extradition proceedings.

And of course, for anyone interested in this topic, I encourage you to read the decision of United States of America v. Tollman.  The lawyers in that case were Michael Code, my first year criminal law professor at the University of Toronto, and David Martin, a criminal defence and extradition lawyer in Vancouver that our law firm works regularly with.  Some key paragraphs of this fascinating decision read:

Further, this is not simply a case of disguised extradition. The US authorities did not simply discover that a fugitive from their justice system was living in Canada and attempt to persuade Canada to turn him over, rather than commence extradition proceedings. The entire process in this case was engineered by the United States. Because the complaint and warrant were sealed, Mr. Tollman had no idea the United States was seeking to prosecute him. He went about his life in the normal course. US authorities waited for Mr. Tollman to leave his own country and tracked him to Canada. He was only going to be here for two days and the US was keen to have him arrested before he could get back home to the United Kingdom. US authorities deliberately laid in wait to trap Mr. Tollman in a jurisdiction where he would be without any kind of support system, where it would be relatively easy to effect his removal and where they expected to have the cooperation of local authorities. That is not to say that the CBSA was privy to all of the United States’ machinations. However, the CBSA was willing to take action it would not otherwise have taken, solely to assist the US in obtaining Mr. Tollman’s return and are therefore complicit, at least to that extent, in the scheme. The United States hoped that once arrested in a foreign country Mr. Tollman would be held in custody or under restrictions that were sufficiently onerous that he would waive his rights and surrender. Against this engineered backdrop the actual steps taken by way of disguised extradition take on an even more sinister character.

It is odd that Mr. Tollman was detained at the Metro West Detention Centre, the most restrictive facility in which he could be imprisoned. He had no criminal record and no history of violence and the offences with which he was charged were non-violent in nature. He had no history of disobeying court orders and, apart from the outstanding charges in the United States, appeared to be a respectable, law-abiding citizen. The usual detention centre for immigration matters is a secure facility and people held in custody there are not free to come and go as they wish. Such a facility would surely have been adequate to ensure Mr. Tollman did not simply leave the jurisdiction. His passports had been seized. There was no reason to believe he would “break out of” the usual immigration detention centre and then illegally flee the jurisdiction. The only basis for believing him to be a flight risk was his financial worth. In these circumstances, it is unusual that he would have been kept in custody in such harsh conditions. The allegation was made in this application that Mr. Tollman’s placement at the Metro West Detention was part of the overall scheme to intimidate him into giving up. Those allegations have gone unanswered. There is good reason to believe that the US authorities influenced the decision as to where Mr. Tollman would be detained, and further that their purpose in doing so was to ensure that his detention was as unpleasant as possible so as to pressure him into abandoning his rights and surrendering to the United States. This is a contributing factor to the abuse of process.

It stretches credulity to suggest that at the very time the United States was scrambling to get the extradition process commenced and arranging to apply on an urgent basis for an extradition arrest warrant, by pure happenstance, the person charged with the responsibility of carrying out the IRB order for Mr. Tollman’s release, all on his own, willfully refused to do so, and then left for the day, closing the office. How fortuitous. I acknowledge there is no direct evidence linking this deliberate refusal to obey a valid IRB order to any motivation to delay Mr. Tollman’s release until an extradition warrant could be obtained. However, it is clear there were communications at various levels about what was going on, communications that that were either not committed to writing, have not been preserved, or were not in the records of the CBSA that were ordered to be disclosed. The refusal to release in the face of an order that was not under appeal, the timing of that refusal, the all-too-convenient delay as a result of the release, and the communications that were ongoing between US and Canadian authorities raise a very real concern about the bona fides of the delay in releasing Mr. Tollman. The motivation behind this conduct was very directly challenged in the applicant’s material from the outset. Those people who are clearly in a position to clarify what happened have remained silent. That does not remove the heavy onus from the applicant to prove his case. However, in my view, this situation falls within the words of Donovan L.J. in Brixton Prison (at p. 664) in that the evidence that has been brought forward “sow[s] such substantial and disquieting doubts in the mind of the court about the bona fides . . . that the court will consider that some answer is called for.” In my opinion, the reasonable inference from the evidence (and the lack of any responding evidence) is that CBSA officials were deliberately dragging their feet in dealing with Mr. Tollman’s release, under the ruse of a jurisdictional problem with the IRB order, in order to give the US authorities and the DOJ sufficient time to obtain an extradition arrest warrant. That was improper and abusive.In addition to the personal impact on Mr. Tollman, the conduct here must be condemned as contrary to the fundamental principles upon which our justice system is based. The justice system must be fair for all who become enmeshed in it, regardless of intellect, wealth or station in life. Mr. Tollman was able to insist on his rights, albeit at considerable personal and financial cost. However, he was armed with intelligence, stamina, a social position of power and prestige, and enormous personal wealth. Very few people would have been able to do what he has done. If the system went awry for him, what hope is there for the weak, the poor and those less powerful? The answer must be in the vigilance of the justice system itself. Misconduct of this sort cannot ever be tolerated, for to do so is to condone, perhaps even to invite, similar conduct in the future. This is the kind of conduct that offends this community’s sense of fair play and decency. Having conducted itself in this manner, the requesting state is disentitled to any relief from this court. Accordingly, this extradition proceeding is permanently stayed.