Martin Giguere v Government of USA and Commissioner of Correctional Services
| Jurisdiction | Jamaica |
| Judge | G. Smith J,Sykes J,Edwards J |
| Judgment Date | 13 April 2012 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2011 HCV 05915 |
| Date | 13 April 2012 |
[2012] JMSC Full 4
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE FULL COURT
The Honourable Miss Justice G. Smith
The Honourable Mr Justice Sykes
The Honourable Miss Justice Edwards
CLAIM NO. 2011 HCV 05915
In the Matter of the Extradition Act
and
In the Matter of the Extradition Order in Respect of Martin Giguere made by the resident Magistrate for the Corporate Area
and
Lord Anthony Gifford and Mr Vernon Bailey instructed by Gifford, Thompson and Bright for the Applicant.
Mrs Ann-Marie Feurtado-Richards and Mr Garcia Kelly instructed by the Director of Public Prosecutions for the First Respondent.
Mr Curtis Cochrane instructed by the Director of State Proceedings for the Second Respondent.
EXTRADITION — PROCEEDINGS BEFORE MAGISTRATE — DUTY OF MAGISTRATE — TEST FOR COMMITTAL — WHETHER MAGISTRATE OBLIGED TO CONDUCT MEANINGFUL JUDICIAL PROCEEDINGS — NEED FOR PROCEEDINGS TO BE CONDUCTED FAIRLY — WHETHER ARREST IN GOOD FAITH.
EXTRADITION — DELAY IN MAKING REQUEST — MEANING OF UNJUST OR OPPRESSIVE — HABEAS CORPUS APPLICATION — REVIEW OF ORDER FOR COMMITTAL — ROLE OF THE REVIEWING COURT — WHETHER TO DISCHARGE FROM CUSTODY.
I have read in draft the judgments of Sykes and Edwards JJ. I agree with their reasoning and conclusion and I have nothing to add.
This is an application by Mr Martin Giguere, a Canadian citizen, for a writ of habeas corpus after he was ordered to be extradited to the United States of America by the Resident Magistrate (RM) for the Corporate Area, sitting as a court of committal under section 10 of the Extradition Act.
The application is based on three grounds. Permission was granted to add another ground as part of ground two.
At this point an overview of the case against Mr Giguere will be given. The details will be analysed in relation to each ground argued on behalf of Mr Giguere. The allegation against Mr Giguere is that he is part of an international drug trafficking ring operating across the common border of the United States of America (USA) and Canada. The case for the USA is that between November 16 and 27, 2010, a number of persons including a Mr Benoit David and Mr Giguere agreed with each other and with others to distribute at least five kilogrammes of cocaine or more in the USA. The conspiracy began in Newark, New Jersey, continued to New York City, then to Kansas City, Missouri, then to California, on to Phoenix, Arizona and back to New Jersey. It is in Arizona that Mr Giguere is alleged to have taken part in the conspiracy.
According to an anonymous confidential witness, Mr David arrived in Corona, California and booked into the Dynasty Hotel on November 14, 2007. He left the hotel and rented a grey Dodge Durango. He then purchased a four track cell phone as well as three nylon roller bags. Mr David left his room at the hotel and met two Hispanic looking men in the parking lot of the hotel. At this meeting, Mr David handed over a black nylon bag to the two men who then left the parking lot of the same hotel. The witness asserts that he knew that that bag contained USA currency and that it was payment for drugs. One of the two Hispanic looking gentlemen was subsequently identified via a photograph shown to the witness by Special Agent Milton Lynn of the United States Department of Homeland Security.
On November 15, 2007, Mr David checked out of the hotel taking with him the remaining two black nylon bags. These bags were taken to, and loaded onto an airplane at Corona Regional Airport, Corona, California. Mr David took off in the plane and arrived at Buckeye Municipal Airport, Arizona on November 16, 2007.
Mr David checked into the Holiday Inn Express at Goodyear, Arizona. Later on November 16, Mr David received eighty kilograms of cocaine in two black nylon roller bags from a Hispanic male who received from Mr David a small black nylon bag containing approximately US$250,000.00 as part payment for the cocaine.
On the same November 16, Mr David drove the same grey rented Dodge Durango to Phoenix International Airport where he picked up a man called Francis. Both men (David and Francis) returned to Buckeye Municipal Airport and then back to the Holiday Inn.
Later on the same day, Mr David called someone in Canada to ask for assistance in concealing the cocaine. Mr David received additional cocaine on November 17.
It is at this point that Mr Giguere enters the picture. He arrives and meets with Mr David at the same Holiday Inn. He goes to Mr David's room. The witness alleges that he observes Mr Giguere take custody of the cocaine which was in the three black nylon bags and places them in a green Jeep Liberty rental vehicle which Mr Giguere had driven to the hotel. Mr David then gives Mr Giguere the keys to the rented grey Dodge Durango and he (Giguere) drove away the Durango. After he had gone for some time, Mr Giguere sent a text message to Mr David which read, “It's done.”
The witness continues by asserting that after Mr David read this message, he (David) drove the Jeep Liberty to Buckeye Municipal Airport, loaded the bags with the cocaine on the plane and took off heading east. The evidence continues with other allegations regarding the transportation and securing of the drug.
As is well known, extradition is a primarily political process where the executive of one state agrees with the executive of another state that each will surrender to the other, persons within its borders who are sought by the other state. The courts are interposed to answer the purely legal questions and thereafter, if the courts decide that extradition is legally permissible in any given case, then it is for the executive branch of government of the requested State to decide whether the person will be surrendered to the requesting State.
However, the fact that it is ultimately a political decision does not mean that the role of the courts is that of a rubber stamp. McLachlin CJ of the Canadian Supreme Court in United States of America v Ferras; United States of America v Latty 268 DLR (4th) 1 held that extradition law requires that the basic demands of justice be met in these types of proceedings. Her Ladyship insisted that “a person cannot be sent away on mere demand or surmise.” Her Ladyship also held that “it must be shown that there are reasonable grounds to send the person to trial” and that a “prima facie case for conviction must be established through a meaningful judicial process.” According to the very learned Chief Justice, a “meaningful judicial process … involves three related requirements: a separate and independent judicial phase; an impartial judge or magistrate; and a fair and meaningful hearing.” It was emphasized by her Ladyship that the “judicial aspect of the process provides a check against state excess by protecting the integrity of the proceedings and the interests of the “named person” in relation to the state process.” The judicial phase “must not play a supportive or subservient role to the executive. It must provide real protection against extradition in the absence of an adequate case against the person sought.” Mr Giguere is entitled to have all these things spoken of by McLachlin CJ.
McLachlin CJ made these observations en route to discarding the previous test for extradition which was simply that there had to be some evidence against the suspect and adopting another test which was expressed by her to be looking “at the whole evidence presented at the extradition hearing and [determine] whether it discloses a case on which a jury could convict.” Her Ladyship went to say that '[i]f the evidence is so defective or appears to be so unreliable that the judge concludes that it would be dangerous or unsafe to convict, then the case should not go to a jury and is therefore not sufficient to meet the test for committal.” More will be said about this later in this judgment particularly the unsafe aspect of it since in Jamaica, the courts here have adopted the position in R v Galbraith [1981] 2 All ER 1060 in deciding whether a case should go to the jury. Also her Ladyship discussed the difference the wording of the new extradition legislation had on the old case law which drew a close analogy between “extradition hearings and domestic preliminary inquiries.” The old statute stated that the extradition judge should “hear the case, in the same manner, as nearly as may be, as if the fugitive was brought before a justice of the peace, charged with an indictable offence committed in Canada.” The new Act dispensed with close analogy by saying that the extradition judge had powers of a justice under Part XVIII of the Criminal Code with any modifications that the circumstances require. Therefore her Ladyship reasoned the extradition judge no longer followed “as nearly as may be” the procedure of a preliminary inquiry.
The old extradition statute in Canada used the same formulation of words used in the Jamaican Act save that the Jamaican Act ended with the words “within his jurisdiction” whereas the former Canadian statute used the words “in Canada.” I am therefore quite aware that the actual decision in Ferras was influenced by the changes in the Canadian legislation but this does not negate the points made by her Ladyship regarding a meaningful judicial process with the components as described by her.
The right of a person whose extradition is sought, whether a Jamaican national or otherwise, is buttressed by section 14 (1) (i) (ii) of the Jamaican Charter of Fundamental Rights and Freedoms. The section reads:
No person shall be deprived of his liberty except on reasonable grounds and in accordance with...
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