Prelude to a Blockbuster: USA v Ferras; USA v Latty

One of the more interesting things I learned in first-year Criminal Law was that, during the 1970s and 1980s, the Supreme Court of Canada (“SCC”) twisted itself into knots over the defence of necessity. First, in Morgentaler v The Queen, [1976] 1 SCR 616, it neither confirmed nor denied that the defence existed at common law. Then, in Perka v The Queen, [1984] 2 SCR 232 [Perka], the majority acknowledged the existence of the defence, but only in the most compelling of circumstances involving personal danger; Justice Wilson strongly dissented, arguing it had a much wider scope. Perka was about a ship, but the defence of necessity had everything to do with abortion, which was, and continues to be, an extremely divisive topic. The split in Perka was coloured by the presence of the Morgentaler cases.

The saga more or less ended when the SCC refused to answer the necessity question in R v Morgentaler, [1988] 1 SCR 30, because the majority struck down the abortion provisions based on Charter arguments. The reason I found all of this so interesting was that it was the first time that I could see the SCC looking over their shoulder, so to speak, while they were drafting their precedents.

The case of United States of America v Ferras; United States of America v Latty, 2006 SCC 33 [Ferras], handed down last July, is not quite as radical. There are no contentious issues like abortion splitting the judges into blocs. Ferras was a unanimous ruling, so it is clear the justices all agree on how to characterize the relevant Charter jurisprudence. Still, this is another situation, like the above, where it seems the SCC was looking over their shoulder, laying the groundwork for last week’s blockbuster Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 [Charkaoui]. The judgment in Ferras was released on July 21, and oral arguments for Charkaoui had concluded one month prior. And it was this case, Ferras, that the SCC relied upon as it ruled that certain elements of the security certificate regime were unacceptable.

There are several notable elements of the Chief Justice’s decision in Ferras which I will discuss in this post. Firstly, it sets out the three components of a meaningful judicial process (it was these that were subsequently applied in Charkaoui to strike out elements of the security certificate regime.) Secondly, it applies these basic procedural requirements specifically to extradition hearings. Finally, the Chief Justice makes comments relating to sentencing and extradition which I think will be very important going forward.

Background

The facts of the case are relatively simple. Both men, Ferras and Latty, were ordered extradited to the United States — Ferras on fraud charges, Latty on charges for allegedly trafficking cocaine. The U.S. used the “record of case” method during the extradition proceedings, whereby the government of the U.S. “certifies” that the evidence against the men was available for trial and was sufficient to justify that trial. They also introduced unsworn statements by American police officers summarizing the evidence.

As I mentioned, the SCC determined that the right to a meaningful judicial process is a principle of fundamental justice. Moreover, they defined that process as having three basic components:

1. A separate and independent judicial phase;
2. An impartial judge or magistrate, and;
3. A fair and meaningful hearing.

It was the last component that the SCC determined was violated by the security certificates regime in Charkaoui, since a fair and meaningful hearing includes the requirement that the judge has access to all of the relevant facts and law.

The Ferras Decision

In Ferras, the SCC determined that the extradition process did not stand up to the newly minted test for a meaningful judicial process. Prior to the Charter, judges were required to commit persons for extradition, so long as there was some evidence before them that parallelled every element of a corresponding offence in Canada. Because judges were granted no discretion, even when the evidence was inherently unreliable, this process could not be characterized as meaningful. However, instead of striking out the legislation that forced judges to commit persons for extradition, the SCC simply read in some degree of judicial discretion. The test now reads as follows:

“The evidence must be demonstrably able to be used by a reasonable, properly instructed jury to reach a verdict of guilty such that a case could go to trial in Canada. Because the requirements for committal of s. 29(1) grant the extradition judge a discretion to refuse to extradite on insufficient evidence, such as where the reliability of evidence is successfully impeached or where it is not shown that the evidence is available for trial, ss. 32(1)(a) and (b) and 33 of the Extradition Act do not violate s. 7 of the Charter.” (para. 46)

Commentary

I wrote in an earlier post that there seems to be a tendency at the SCC to spend an overwhelming amount of time on the main arguments, and then brush the tertiary arguments aside with a few scant paragraphs. This was the case again here, when the SCC dealt with Latty’s argument that to deport him to the U.S. on drug charges would “shock the conscience” of Canadians. If convicted in the U.S. following his extradition, Latty faces a sentence of 10 years to life without parole. I think it is troubling, to say the least, that he could face a sentence in the foreign jurisdiction that is far more harsh than the Canadian penalties for even murder or high treason.

However, in this instance at least, the SCC can hardly be blamed for their summary approach to this question: it seems that Latty introduced no evidence or case law to support his assertion. But I think this issue needs to be dealt with in more detail, particularly with the Marc Emery extradition hearing scheduled to begin in May (Marc Emery is a Canadian citizen charged in the United States for trafficking in marijuana due to his Vancouver-based business exporting marijuana seeds via mail. For more information see the surprisingly thorough report by George Stroumboulopoulos.)

This area of law is certainly one to watch. Its practically brimming with controversy, both because of Marc Emery and the intersection of the differing attitudes toward drugs between our country and our neighbour to the south, and because of the intersection between post-9/11 security concerns and the need to maintain a strong human rights record of which we can all be proud. Unfortunately, this judgement doesn’t offer much of a glimpse toward future direction, outside of saying that, for Mr. Latty at least, “the factors favouring surrender in this circumstance far outweigh those that do not.” The SCC certainly used this case as a stepping stone toward its high profile decision in Charkaoui. It will be interesting to see how Ferras factors into the equally high-profile extradition jurisprudence.