USA v. Cotroni [1989] 1 S.C.R. 1469: Right of Canadian citizen to remain in Canada -- Extradition -- Conspiracy to import drugs into U.S.A. from Canada -- Actions of accused taking place in Canada -- Offence existing under both U.S. law and Canadian law -- Whether or not extradition of Canadian citizen under these circumstances an infringement of citizen's right to remain in Canada

Constitutional law -- Charter of Rights -- Right of Canadian citizen to remain in Canada -- Extradition -- Conspiracy to import drugs into U.S.A. from Canada -- Actions of accused taking place in Canada -- Offence existing under both U.S. law and Canadian law -- Whether or not extradition of Canadian citizen under these circumstances an infringement of citizen's right to remain in Canada -- If so, whether or not extradition justifiable under s. 1 of the Charter -- Canadian Charter of Rights and Freedoms, ss. 1, 6(1).

Extradition -- Canadian citizens involved in conspiracy to import drugs into U.S.A. from Canada -- Actions of accused taking place in Canada -- Offence existing under both U.S. law and Canadian law -- Whether or not extradition of Canadian citizen under these circumstances an infringement of citizen's right to remain in Canada -- If so, whether or not extradition justifiable under s. 1 of the Charter.

Appellants are Canadian citizens who were arrested in Canada for separate offences pursuant to warrants issued under the Extradition Act and the Extradition Treaty between Canada and the United States. Both were alleged to have participated in a conspiracy to import and distribute heroin in the United States; El Zein was also alleged to have imported heroin into the United States. The appellants' actions which related to the alleged offences took place when they were in Canada and appellants could have been tried under Canadian law. The United States sought extradition, committal for extradition was ordered in each case and applications for habeas corpus with certiorari in aid were dismissed. The Quebec Court of Appeal quashed the committals. The constitutional questions before this Court queried (1) whether the surrender of a Canadian citizen to a foreign state constituted an infringement of the s. 6(1) Charter right to remain in Canada and, (2) if so, whether surrender here constituted a reasonable limit on that right under s. 1.

Held (Wilson and Sopinka JJ. dissenting): The appeals should be allowed; both constitutional questions should be answered in the affirmative.

Per Dickson C.J. and La Forest, L'Heureux-Dubé, Gonthier and Cory JJ.: The extradition of a Canadian citizen prima facie infringes the citizen's right to remain in Canada as guaranteed by s. 6(1) of the Charter -- a right to be interfered with only if justified as being required to meet a reasonable state purpose. This Charter right would have been drafted differently if it were to include only protection from expulsion and banishment or exile. Its central thrust, nevertheless, is against exile and banishment for the purpose of excluding membership in the national community. Extradition is not directed to that purpose and lies at the outer edges of the core values being protected by the provision.

The objectives underlying extradition are pressing and substantial and are sufficiently important to make it a reasonable limit -- within the meaning of s. 1 and assuming the other requirements of s. 1 are met -- to the Charter right set out in s. 6(1). The investigation, prosecution and suppression of crime for the protection of the citizen and the maintenance of peace and public order is an important goal of all organized societies. The pursuit of that goal cannot realistically be confined within national boundaries. The objectives of extradition go beyond that of suppressing crime, simpliciter, and include bringing fugitives to justice for the proper determination of their guilt or innocence in a proper hearing.

An extradition may be rationally connected to the objectives underlying extradition notwithstanding the fact that Canada has sufficient interest to prosecute for the same acts. It is often better that a crime be prosecuted where its harmful impact is felt and where the witnesses and the persons most interested in bringing the criminal to justice reside.

The Oakes test should not be applied in an overly rigid and mechanistic fashion: the language of the Charter invites a measure of flexibility. While the rights guaranteed by the Charter must be given priority in the equation, the underlying values must be sensitively weighed in a particular context against other values of a free and democratic society sought to be achieved by the legislature.

Extradition impairs the right under s. 6(1) as little as is reasonably possible. Extradition practices have been tailored as much as possible for the protection of the liberty of the individual and accord the same kinds of rights (though in a necessarily attenuated form) as are afforded to an accused under ss. 7 and 11 of the Charter. The important and substantial objectives which underlie extradition and which are essential to the maintenance of a free and democratic society warrant this somewhat peripheral Charter infringement.

In the case at bar, respondents were physically present in Canada when they allegedly participated in the transactions in respect of which they stand charged. These alleged transactions, however, were of a transnational nature. While continued physical presence in Canada may be relevant under ss. 1 and 6 of the Charter, the locus of wrongdoing is not. The right to remain in Canada, furthermore, is not more affected by the alleged crime's being committed outside Canada as opposed to inside Canada.

A general exception for a Canadian citizen who could be charged in Canada would unduly interfere with the objectives of extradition. Considerations relating to effective prosecution, the availability of evidence, initiative for investigation and to the impossibly difficult task of determining the country best suited to try the case by judicial examination, go beyond mere administrative convenience and touch the very purpose underlying extradition. In particular, the interests of society in bringing a fugitive to justice at a trial where his or her guilt or innocence can be properly determined would be seriously impaired. Such an approach, moreover, would weaken the system generally, and so the objectives it serves, by sapping the trust and good faith that must exist between nations and their officials and law enforcement agencies at many levels.

Justification for the limitation of the right under s. 1 is not vitiated by the fact that the question of whether or not extradition will take place is left to the discretion of the Attorney General of Canada or of a province. The principal discretion involved is whether or not to prosecute and the reasons justifying that discretion underlie the discretion of deciding whether or not a Canadian should be prosecuted in Canada or abroad. In exercising this discretion, a citizen's s. 6(1) rights must be given due weight. In practice, the decision whether to prosecute or not to prosecute in this country and allow the authorities in another country to seek extradition, is made following consultations between the appropriate authorities in the two countries when various factors, including nationality, are considered in weighing the interests of the two countries in the prosecution.

The executive discretion to surrender was of little relevance here.

Per Wilson J. (dissenting): Section 6(1) of the Charter was designed to protect the right of a Canadian citizen to choose of his own volition to enter, remain in or leave Canada. The language of s. 6(1) is clear and unambiguous. Had it been the intention that s. 6(1) address only a citizen's right not to be exiled or banished, the section would have been framed in more specific terms.

The locus of the wrongdoing is very relevant in any attempt to justify extradition as a reasonable limit on a Canadian citizen's right to remain in Canada. It is often the key factor connecting the accused to the requesting state. The right of a citizen to remain in Canada need not be violated when the crime has been committed by a Canadian in Canada and is punishable by Canadian law. He can be brought to justice right here. It is otherwise when the crime has been committed in the requesting state. The argument for extradition being a reasonable limit under s. 1 is clearly much stronger in the latter case. More persuasive reasons than convenience of prosecution are required to justify the violation of a right expressly guaranteed to Canadian citizens in the Charter. This Charter right is not a trivial one nor can its breach be viewed as peripheral.

The executive branch of government in exercising its discretionary powers as to whether or not to extradite or whether or not to prosecute is bound by the Charter. It has no discretion as to whether or not it will respect guaranteed rights. Its discretion is limited by the Charter and not vice versa.

The control of trans-border crime is of sufficiently pressing and substantial concern to warrant a legislative limit on the citizen's right to remain in Canada. The proportionality test, however, was not met. Extradition, while it may be rationally connected in general to the objective of controlling trans-border crime, does not impair the s. 6(1) right "as little as possible" on the particular facts of these appeals. The objective could have been achieved by prosecuting respondents in Canada and so have avoided a contravention of s. 6(1) of the Charter entirely. A flexible approach might be taken with respect to proportionality in some cases but careful scrutiny of a legislative scheme should not be abandoned where that scheme directly abridges a guaranteed right, particularly in relation to an aspect of the criminal law.

The comity of nations fostered by extradition would not be adversely affected if extradition were to be denied in cases such as the present.

Per Sopinka J. (dissenting): For the reasons given by Wilson J., extradition of a citizen who can be tried in Canada is not a reasonable limit and extradition in this case would constitute a breach of s. 6(1) which has not been justified under s. 1 of the Charter. The implications arising from the majority decision, however, need be expressed.

The infringement of s. 6(1) of the Charter resulting from extradition is not peripheral: countries to which a Canadian can be extradited do not recognize the presumption of innocence or the right to remain silent; do not permit bail; have no independent bar; and still retain the death penalty for a number of offences. Any enforceable rules of law designed to protect the citizen make no distinction as to the nature of the requesting state. Further, little protection can be afforded by matters considered at the time of treaty negotiations because many of the treaties are old and the political and legal nature of many states has drastically changed in the interim.

The practice that the decision to extradite is made after consultations between the authorities of Canada and the requesting state is only a practice and is not reviewable unless a discretion was exercised for an improper or arbitrary motive. It is neither "a limit prescribed by law" nor crafted to lessen the impact of a breach of s. 6(1) and so cannot justify that breach.

A decision to prosecute in Canada will not protect the citizen against extradition unless the treaty confers a discretion in Canada not to extradite its own citizens. This discretion is a political matter. Accordingly, whether a decision to prosecute will avail will depend on the general policy of the Canadian government. This policy is not expressed in any instrument having the force of law.

A law cannot be salvaged by relying on the discretion of the prosecutor not to apply the law where it would result in a violation of the Charter. Such discretion is not circumscribed by guidelines enforceable at law.

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