United States of America v. Cotroni
Encyclopedia
| United States of America v. Cotroni; United States of America v. El Zein | ||||||
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 Supreme Court of Canada |
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| Argued February 22-23, 1989 Decided June 8, 1989 |
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| Holding | ||||||
| Extradition of the respondents is justified; extradition is a minor issue regarding mobility rights. | ||||||
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| Case opinions | ||||||
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United States of America v. Cotroni; United States of America v. El Zein [1989] 1 S.C.R. 1469 was a decision by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on extradition
Extradition
Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
and freedom of movement
Freedom of movement
Freedom of movement, mobility rights or the right to travel is a human right concept that the constitutions of numerous states respect...
under section 6
Section Six of the Canadian Charter of Rights and Freedoms
Section Six of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects the mobility rights of Canadian citizens, and to a lesser extent that of permanent residents. By mobility rights, the section refers to the individual practice...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. The Court found extradition violates section 6 but is a justified infringement under section 1
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
of the Charter.
Background
The case involved Frank Santo Cotroni, a Canadian citizen who was accused of planning to sell heroin in the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. He was arrested in Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
and plans were made to extradite him. Cotroni resisted the extradition on the grounds that it was in violation of section 6(1) of the Charter, which grants Canadian citizens the right to stay in Canada. He won his case in the Quebec Court of Appeal
Quebec Court of Appeal
The Court of Appeal for Quebec is the highest judicial court in Quebec, Canada....
, who argued that it was possible to try Cotroni in Canada, where the crime was centred.
The second respondent in the case was Samir El Zein, also a Canadian citizen, who gave heroin to two people in Canada who were then caught trying to cross the border with it. El Zein was arrested and the US requested he be extradited. El Zein also won his case in the Court of Appeal.
Decision
When the case reached the Supreme Court, the appellants argued that section 6(1) should be interpreted in the way it was meant, namely to guard against arbitrary exileExile
Exile means to be away from one's home , while either being explicitly refused permission to return and/or being threatened with imprisonment or death upon return...
and not extradition, which may not be a permanent removal and does not terminate Canadian citizenship. Hansard
Hansard
Hansard is the name of the printed transcripts of parliamentary debates in the Westminster system of government. It is named after Thomas Curson Hansard, an early printer and publisher of these transcripts.-Origins:...
from 1981, just before the implentation of the Charter, was cited to reinforce this point. Nevertheless, the Supreme Court majority decision, written by Gerard La Forest
Gérard La Forest
Gérard Vincent La Forest, CC, QC, FRSC, LL.D was a Puisne Justice of the Supreme Court of Canada from January 16, 1985 to September 30, 1997....
, cited Re B.C. Motor Vehicle Act
Re B.C. Motor Vehicle Act
Reference re Section 94 of the Motor Vehicle Act, [1985] 2 S.C.R. 486 was a landmark reference submitted to the Supreme Court of Canada regarding the constitutionality of the British Columbia Motor Vehicle Act...
(1985) to say the framers' intent was not binding in Charter case law. Rights can be given generous, liberal interpretations, and the right considered in this case was deemed to be important enough that limits would have to be justified.
It was noted the wording of section 6(1) was vague, and if given a straightforward reading could be interpreted to provide rights against extradition and not just arbitrary banishment. Indeed, the Canadian Bill of Rights
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
(1960) had provided a right against exile and the Charter did not use that limited wording. Nevertheless, while extradition would violate section 6(1), it would not violate the primary principles underlying the right. European case law, in particular, was cited to show extradition and exile are different. Past Canadian case law, like Re Federal Republic of Germany and Rauca and obiter dicta in Canada v. Schmidt
Canada v. Schmidt
Canada v. Schmidt, [1987] 1 S.C.R. 500, is a decision by the Supreme Court of Canada on the applicability of fundamental justice under the Canadian Charter of Rights and Freedoms on extradition...
(1987) also indicated extradition was a violation, but still a justified limit, on section 6.
The Court then turned to section 1 of the Charter, which provides for reasonable limits on rights. Cotroni declined to argue that extradition was unreasonable under section 1, since predent had already determined it was reasonable. However, Cotroni did argue extradition would be unreasonable in this particular case. El Zein's legal representation argued Canadian citizens should be held in Canada and their trials should occur there. To determine the application of section 1, the Court used the Oakes test, as set out by R. v. Oakes
R. v. Oakes
R. v. Oakes [1986] 1 S.C.R. 103 is a case decided by the Supreme Court of Canada which established the famous Oakes test, an analysis of the limitations clause of the Canadian Charter of Rights and Freedoms that allows reasonable limitations on rights and freedoms through legislation if it can be...
(1986). Everyone agreed fighting crime would be an important objective for limiting a Charter right. Moreover, international cooperation was needed to do this because of globalization
Globalization
Globalization refers to the increasingly global relationships of culture, people and economic activity. Most often, it refers to economics: the global distribution of the production of goods and services, through reduction of barriers to international trade such as tariffs, export fees, and import...
, and the Court made reference to the global village envisioned by Canadian thinker Marshall McLuhan
Marshall McLuhan
Herbert Marshall McLuhan, CC was a Canadian educator, philosopher, and scholar—a professor of English literature, a literary critic, a rhetorician, and a communication theorist...
. The question was then whether the infringement of the right was rational and as small as reasonably possible. The respondents claimed it was not, since they were Canadian, most of the crimes took place in Canada, and could be tried in Canada. While the Supreme Court acknowledged Canada could justifiably try the respondents itself, the US was justified to try the respondents as well, and it was the US that would have absorbed most of the negative impact of the crime. Extradition was therefore rational since "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." Even if extradition may not be the smallest possible limit on the right, the government was allowed some flexibility and extradition simply did not strike at the primary values of section 6. This conclusion was reinforced by the fact that extradition has long been practiced in Canada, and Re Burley
Re Burley
Re Burley , 1 U.C.L.J. 34, was a decision on extradition by the Court of Common Pleas of Upper Canada. Though made two years before Confederation, the case has been cited by the Supreme Court of Canada in mobility rights and extradition cases over a century later.-Decision:The decision was made by...
(1865) showed that criminals should receive "little leniency" in extradition cases.
Wilson
A dissent was written by Justice Bertha WilsonBertha Wilson
Bertha Wernham Wilson, CC was a Canadian jurist and the first woman Puisne Justice of the Supreme Court of Canada.-Early life:...
. She concurred that extradition would violate section 6 but felt extradition in this case would not be justified under section 1. She emphasized the importance of rights and consequent high expectations for limits. The precedent in Rauca and Schmidt had not dealt with a case where most of the criminal activity had occurred in Canada, and this case was different since the defendants could be tried in Canada. She also complained the decision to treat extradition as a minor section 6 issue leaves little work for section 1.
Sopinka
Another dissent was written by Justice John SopinkaJohn Sopinka
John Sopinka, QC was a Canadian lawyer and puisne justice on the Supreme Court of Canada, the first Ukrainian-Canadian appointed to the high court....
. He largely agreed with Wilson, but stressed that the view of extradition as a minor section 6 issue was wrong because of "the spectrum of nations to which a citizen can be extradited." Some countries do not have many of the legal rights Canada has, and as a result extradition can be a weighty issue. He also expressed fear that the precedent established by Canada v. Schmidt, that fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
can be breached considering the potential punishments faced by an extradited person, might be at risk since the Court had concluded extradition was generally reasonable.