In the long-running saga of the American extradition case against Kim Dotcom, owner of the Mega-Upload internet "sharing" service (media reports here), the New Zealand Court of Appeal has recently overturned lower court decisions ordering the US, as requesting state, to disclose a broad swathe of the evidence underpinning its record of the case. The decision is essentially one of statutory interpretation, turning on the fact that the US is an "exempted state" under part 3 of the NZ Extradition Act. It is entitled to present its request by way of "record of the case," rather than submitting the actual evidence that supports the extradition request, or part of it, as is required of other states. And, according to the Court of Appeal, it need not disclose evidence even on motion by the person sought.
While the dependence of the finding on the New Zealand statute makes the decision of limited relevance outside that country, I noted with interest the CA's finding that there is nothing in international law that would bar a disclosure order. This is something that the Canadian extradition case law is still tied up in knots about, and our overall law on the subject weighs against disclosure in most circumstances but is certainly divided. A number of Canadian courts have declined to order disclosure against the US, in part due to concerns about extraterritorial application of our law (particularly the Charter, which drives most disclosure matters).
The CA dealt with the matter quite simply at para. 119:
"The extradition court does have jurisdiction to order disclosure to ensure a fair hearing because it has all the powers and jurisdiction of a court conducting a committal hearing. Because the applicant is a party to the proceeding, orders for disclosure does not involve the District Court making orders with extraterritorial [e]ffect."
Essentially, by accessing our courts, the requesting state has attorned to our jurisdiction and is subject to all remedies that might be imposed on a party. This is certainly the kind of reasoning that underpins motions for abuse of process in Canadian extradition matters, so it's really quite a modest extension. Food for thought.
Comments