United States v Cotroni

Background

The case involved Frank Santo Cotroni, a Canadian citizen who was accused of planning to sell heroin in the United States. He was arrested in Canada 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, 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 exile and not extradition, which may not be a permanent removal and does not terminate Canadian citizenship. Hansard 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, cited Re B.C. 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 (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 (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 test as set out by R v Oakes (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, and the Court made reference to the global village envisioned by Canadian thinker Marshall McLuhan. 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 (1865) showed that criminals should receive "little leniency" in extradition cases.

Wilson

A dissent was written by Justice Bertha Wilson. 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 Canada v. 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 Sopinka. 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 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.