Extradition

• Author: International Law Group

In July 1994, a U.S. federal grand jury indicted Harry Cobb and Allen Grossman (appellants), two Canadian citizens and residents, for engaging in a $22,000,000 mail fraud and conspiracy involving gemstones (executed from Canada but involving U. S. residents). At least 25 individuals and 8 corporations took part. Several of their alleged coconspirators had voluntarily returned to face the charges pending in the U. S. District Court for the Middle District of Pennsylvania. The United States then requested Canadian authorities to extradite Cobb and Grossman, among others.

Appellants objected to being extradited, however, on the grounds that it would violate their rights under Section 7 of the Canadian Charter of Rights and Freedoms because of intimidating statements made by the American trial judge and prosecutor. Section 7 provides that: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

At the sentencing of one of the co-conspirators, the American judge remarked that those fugitives who did not cooperate would get the "absolute maximum jail sentence." The federal prosecutor also stated during a Canadian TV interview broadcasted just before appellants' hearing that: "You're going to be the boyfriend of a very bad man if you wait out your extradition." There is no record showing that the U.S. government has repudiated these remarks.

Although the U.S. had admittedly put forth the necessary prima facie case, the extradition judge declined to order the appellants committed and stayed the proceedings based on the American comments. Represented by Canadian officials, the United States' request then went to the Ontario Court of Appeal. That Court set aside the stay and sent the matter back to the extradition judge, holding that the lower court should not pre-empt the discretion given to the Minister of Justice as to whether or not to surrender a fugitive pursuant to the United States -- Canadian Treaty on Extradition (as amended 1974) [27 U.S.T. 983; T.I.A.S. 8237.]

The Minister, however, has delayed his decision in the matter until completion of any further appeal. The Canadian Supreme Court allows the appeal.

The Court first points out that the Canadian Charter of Rights and Freedoms controls the application of the extradition treaty, the conduct of the hearing, as well as the exercise of executive discretion as to surrender...