United States of America v. Dynar [1997] 2 S.C.R. 462: Extradition -- Offences -- Money laundering -- Attempt -- Conspiracy -- Fugitive charged in U.S. with attempting to launder money and conspiracy to launder money -- Whether fugitive's conduct would have amounted to offence under Canadian law if it had occurred in Canada -- Whether conduct would have amounted to criminal attempt or criminal conspiracy under Canadian law -- Right to a fair hearing -- Disclosure

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Extradition -- Offences -- Money laundering -- Attempt -- Conspiracy -- Fugitive charged in U.S. with attempting to launder money and conspiracy to launder money -- Whether fugitive's conduct would have amounted to offence under Canadian law if it had occurred in Canada -- Whether conduct would have amounted to criminal attempt or criminal conspiracy under Canadian law -- Criminal Code, R.S.C., 1985, c. C-46, ss. 24(1), 462.31(1), 465(1)(c) -- Narcotic Control Act, R.S.C., 1985, c. N-1, s. 19.2(1).

Criminal law -- Attempt -- Conspiracy -- Whether impossibility constitutes defence to charge of attempt or conspiracy under Canadian law -- Criminal Code, R.S.C., 1985, c. C-46, ss. 24(1), 465(1)(c).

Extradition -- Hearing -- Right to a fair hearing -- Disclosure -- Applicable procedural safeguards at extradition hearing.

The U.S. government requested the extradition of D, a Canadian citizen who had been the subject of a failed "sting" operation by the FBI. D had placed a telephone call from Canada to a former associate who was living in Nevada and who had become a confidential informant working for an FBI agent. D had been the subject of investigations in the U.S. into the laundering of substantial amounts of money originating in Nevada. The FBI agent had the informant introduce to D a second confidential informant, who was instructed to ask if D would be willing to launder large sums obtained as a result of illegal trafficking. When asked, D agreed with alacrity. Numerous conversations between the two men were recorded over the course of some months. It was eventually arranged that an associate of D would go to the U.S. to pick up some money to be laundered, but the FBI aborted the operation just prior to the transfer. D was charged in the U.S. with attempting to launder money and conspiracy to launder money. Following a hearing under the Extradition Act, he was committed for extradition. He complained to the Minister of Justice of the lack of disclosure of the Canadian involvement in the investigation, but the Minister refused D's request to re-open the extradition hearing, and ordered his surrender for prosecution in the U.S. The Court of Appeal allowed D's appeal from the committal decision and granted his application for judicial review of the Minister's decision to order his surrender. The major issue raised in this appeal is whether D's conduct would have amounted to an offence under Canadian law if it had occurred in Canada. The issue presented on D's cross-appeal is whether the Canadian authorities violated D's constitutionally guaranteed right to a fair hearing by failing to disclose details of official Canadian involvement in the U.S. investigation of him.

Held: The appeal should be allowed and the cross-appeal dismissed.

(1) Issue on Appeal

Per Lamer C.J. and La Forest, L'Heureux-Dubé, Gonthier, Cory and Iacobucci JJ.: If D had successfully consummated in Canada a scheme like the one he embarked on in the U.S., he would not have been guilty of any completed offence known to the law of Canada, since the conversion of monies that are believed to be but are not in fact the proceeds of crime was not an offence in Canada at the relevant time. There were two statutory provisions under which Canadian authorities might have prosecuted money-laundering schemes like the one that D attempted to consummate, but both required that an accused, if he was to be convicted, should have known that the money he converted was the proceeds of crime. Since the money that the U.S. undercover agents asked D to launder was not in fact the proceeds of crime, D could not possibly have known that it was the proceeds of crime.

However, the steps D took toward the realization of his plan to launder money would have amounted to a criminal attempt under Canadian law if the conduct in question had taken place entirely within Canada. The crime of attempt under s. 24(1) of the Criminal Code consists of an intent to commit the completed offence together with some act more than merely preparatory taken in furtherance of the attempt. D's argument that Parliament did not intend by s. 24(1) to criminalize all attempts to do the impossible, but only those attempts that the common law has classified as "factually impossible", does not help him, because the conventional distinction between factual and legal impossibility is not tenable. The only relevant distinction for purposes of s. 24(1) is between imaginary crimes and attempts to do the factually impossible. Only attempts to commit imaginary crimes fall outside the scope of the provision. Because what D attempted to do falls squarely into the category of the factually impossible -- he attempted to commit crimes known to law and was thwarted only by chance -- it was a criminal attempt within the meaning of s. 24(1).

Even though D did not "know" that the money he attempted to convert was the proceeds of crime, he nevertheless had the requisite mens rea for a crime. Knowledge is not the mens rea of the money-laundering offences. Knowledge has two components -- truth and belief -- and of these, only belief is mental or subjective. Belief is the mens rea of the money-laundering offences. That the belief be true is one of the attendant circumstances that is required if the actus reus is to be completed. The absence of an attendant circumstance is irrelevant from the point of view of the law of attempt.

D's conduct could also justify his surrender on the conspiracy charge. The issue is not whether D's conduct can support a conviction for conspiracy, but only whether a prima facie case has been demonstrated that would justify his committal for trial if his conduct had taken place in Canada. For there to be a criminal conspiracy, there must be an intention to agree, the completion of an agreement, and a common design to do something unlawful. Conspiracy is a more "preliminary" crime than attempt, since the offence is considered to be complete before any acts are taken that go beyond mere preparation to put the common design into effect. Impossibility is not a defence to conspiracy. Conspirators should not escape liability because, owing to matters entirely outside their control, they are mistaken with regard to an attendant circumstance that must exist for their plan to be successful. From a purely conceptual perspective, the distinction between factual and legal impossibility is as unsound in the law of conspiracy as it is in the law of attempt. Cases of so-called "legal" impossibility turn out to be cases of factual impossibility and the distinction collapses, except in cases of "imaginary crimes". Furthermore, like attempt, conspiracy is a crime of intention. Since the offence of conspiracy only requires an intention to commit the substantive offence, and not the commission of the offence itself, it does not matter that, from an objective point of view, commission of the offence may be impossible.

Per Sopinka, McLachlin and Major JJ.: The intention to do an act coupled with some activity thought to be criminal is not sufficient to find the accused guilty of an attempt when that which was attempted was not an offence under the Criminal Code. There must be an underlying offence capable of being committed before the elements of the attempt offence can be considered. The substantive offence of money laundering as it stands cannot be committed without the actual proceeds of crime being present. The accused cannot "know" that what he is laundering is the proceeds of crime unless the proceeds are in fact the proceeds of crime. Since D did not have knowledge, the mens rea of the offence, he cannot be said to have attempted it. Moreover, it does not make sense to say that D attempted to launder the proceeds of crime, when he only attempted to launder what the FBI provided. There was no offence that could be committed; the laundering of legal proceeds is an imaginary crime.

The offence of conspiracy to launder money can be made out on these facts. The gravamen of the offence is the agreement to commit a crime, and it was open to the extradition judge to conclude that there was sufficient evidence of an agreement between D and his associate to commit the offence of money laundering. The conspiracy charge was based on the agreement to commit the general offence of money laundering, whereas the attempt charge was restricted to the attempted laundering of the money that was to have been provided by the authorities in the sting operation.

(2) Issue on Cross-Appeal

A new hearing is not warranted here. The role of the extradition judge is a modest one, limited to the determination of whether or not the evidence is sufficient to justify committing the fugitive for surrender. The extradition hearing is intended to be an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canada's international obligations. Even though the hearing must be conducted in accordance with the principles of fundamental justice, this does not automatically entitle the fugitive to the highest possible level of disclosure. The principles of fundamental justice guaranteed under s. 7 of the Canadian Charter of Rights and Freedoms vary according to the context of the proceedings in which they are raised. Procedures at the extradition hearing are of necessity less complex and extensive than those in domestic preliminary inquiries or trials. Since D received adequate disclosure of the materials that were being relied upon to establish the prima facie case against him, no additional disclosure was required. No justiciable Charter issue arises since the evidence provided by the requesting state contains sufficient information to conclude that the evidence was gathered entirely in the U.S., by American officials, for an American trial

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