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Criminal - Extradition
MORE CASES
Part 2
. United States v. Mann
In United States v. Mann (Ont CA, 2024) the Ontario Court of Appeal dismissed an extradition appeal against a committal order [grounded on a dismissal of a request for disclosure, and a "finding that his conduct would have constituted an offence punishable under s. 163.1 of the Criminal Code" (child pornography)], and a JR of a surrender order.
Here the court considers the request for a disclosure order:(1) The disclosure judge properly dismissed the application for disclosure on the basis that there was no nexus between the alleged misconduct and the issues relevant to committal
[16] The appellant does not appear to dispute that a stay of extradition proceedings is available only where there is a nexus between the conduct alleged to constitute an abuse of process and the issues relevant to the extradition. The appellant’s argument is that the application judge interpreted the nexus requirement unduly narrowly, by holding that a stay of extradition proceedings would be available only where the requesting state was itself directly or indirectly involved in the alleged misconduct. He further argues that the initial arrest by Canadian authorities on March 19, 2021 was a pre-textual or “disguised” extradition arrest since Canadian officials were aware at the time that the appellant was wanted to face criminal charges in the U.S. Therefore, his arrest by Canadian officials was sufficiently connected with the extradition process such that the abuse he suffered in that arrest could give rise to a stay of his extradition, and he ought to have received the disclosure he requested.
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[21] While the evidentiary threshold for disclosure from R. v. Larosa (2002), 2002 CanLII 45027 (ON CA), 166 C.C.C. (3d) 449 (Ont. C.A.) requires only an air of reality to the alleged misconduct, the absence of a connection to the committal hearing means that the allegations could not support the remedy of a stay. The fact that Canadian officials were aware at the time of the arrest under the IRPA that the U.S. had sought the appellant’s provisional arrest under the Extradition Act did not render the March 19, 2021 arrest for breach of the IRPA unlawful or improper, since immigration and extradition investigations can legitimately run in tandem. Nor does the fact that there is cooperation between Canadian and U.S. officials, whose separate duties lead legitimately to the same practical result, constitute evidence of bad faith: Korea v. Jung, 2023 BCCA 113, 424 C.C.C. (3d) 11, at paras. 86-89. . United States v. Jones
In United States v. Jones (Ont CA, 2023) the Court of Appeal considered the SOR of a JR against "the Minister of Justice’s order of surrender under the Extradition Act":THE STANDARD OF REVIEW
[7] On judicial review, the standard of review for the exercise of the Minister’s discretion under the Extradition Act is reasonableness. The Minister’s decision to surrender a person for extradition is entitled to substantial deference: Lake v. Canada, 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 41. This is because the Minister’s decision to surrender a person is largely political in nature and therefore falls at the “extreme legislative end of the continuum of administrative decision-making”: India v. Badesha, 2017 SCC 44, [2017] 2 S.C.R. 127, at para. 39. Therefore, if the Minister considered the relevant facts and reached a reasonable conclusion based on those facts, the decision must be upheld: Lake, at paras. 2, 26, 34, 38, and 41.
[8] With respect to the reasons explaining the conclusions, the Supreme Court stated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 85, that a reasonable decision “is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision.”
[9] That said, the Supreme Court in Lake cautions, at para. 41, that “reasonableness does not require blind submission to the Minister's assessment.” The Minister must also apply the correct legal test and the “Minister's conclusion will not be rational or defensible if he has failed to carry out the proper analysis”: at para. 41. . United States v. Jones
In United States v. Jones (Ont CA, 2023) the Court of Appeal considered a JR against "the Minister of Justice’s order of surrender under the Extradition Act". Here the court considers this extradition in light of the Minister not seeking 'assurances' as to "not pursu(ing) civil commitment":(2) The decision not to seek assurances regarding civil commitment was reasonable
[32] The applicant requested that, if surrendered, the Minister seek assurances that the U.S. authorities would not pursue civil commitment in the applicant’s case. The Minister reviewed the applicant’s position in detail, outlined additional information obtained from U.S. authorities on the civil commitment process, and concluded that they did not warrant seeking specific assurances regarding the application of that process to the applicant. He explained:In the event that Mr. Jones’ circumstances, post-surrender, do give rise to federal civil commitment proceedings, I am satisfied that there are adequate safeguards in the United States’ federal civil commitment process that would allow him to oppose a finding that he is a “sexually dangerous person.” The statutory scheme in place is robust and ensures proper oversight and recourse for persons who may be subjected to those laws. This includes the right to legal representation at the district court hearing that would consider the issue as well as the ability to testify, advance evidence, and cross-examine witnesses. The decision of the district court to order civil commitment can also be appealed.
Moreover, where a person is found to be a “sexually dangerous person” and is confined in an appropriate treatment facility, the director of that facility is required to submit annual reports on the person’s mental condition and to make recommendations on whether ongoing commitment is necessary. A civilly committed person may, every six months, apply to the relevant district court to be discharged. [33] The Minister also dealt with the possibility of state (as opposed to federal) initiated civil commitment, and stated he was satisfied that this eventuality was not a risk, as no such state-initiated process had ever occurred in the past against a person in federal custody.
[34] The applicant argues that the Minister erred by failing to reconcile why he sought an assurance against federal civil commitment in United States v. Hillis, 2021 ONCA 447, 156 O.R. (3d) 525, but declined to do so in the applicant’s case. According to the applicant, where the Minister previously sought assurances to ensure the justness and constitutionality of a Canadian citizen’s surrender, he should provide an explanation for why he declined to obtain the same assurances for another citizen in similar circumstances.
[35] This argument was raised with the Minister as well. The Minister expressly distinguished Hillis, explaining that, in Hillis, the subject of the extradition application was exposed to state civil commitment under Minnesota’s civil commitment regime, a regime criticized for its serious gaps in due process and insufficient checks and balances for persons who may be subject to the regime.
[36] The applicant notes that Hillis dealt not only with state civil commitment but also with federal civil commitment. The respondent highlights that, while it is true that the analysis in Hillis focuses on the Minnesota civil commitment process, the federal process was added to the assurance sought in an abundance of caution, rather than in relation to any specific concerns with the federal process.
[37] The respondent emphasizes that, as this court reiterated in Hillis, interference with the Minister’s exercise of discretion in this principally political arena is limited to “exceptional cases of real substance”: at para. 85. The respondent contends that there is nothing exceptional about the Minister ordering surrender without an assurance against the remote possibility that the applicant might face civil commitment proceedings in the United States, and that appellate courts have repeatedly upheld surrender orders where the Minister has declined to seek such an assurance (relying on Hillis, at para. 100).
[38] I do not view the different approach taken by the Minister in Hillis and in this case as problematic.
[39] This court affirmed in Viscomi, at para. 55, that the Minister’s reliance on satisfaction with the procedural protections afforded a person subject to the civil commitment process in the U.S., and the similarity of civil commitment to involuntary committal under Canadian mental health laws, were sufficient to ground the Minister’s conclusion that the possibility of civil commitment did not violate s. 7 of the Charter.
[40] I am not persuaded that the Minister acted unreasonably in exercising his discretion, after careful analysis, not to seek specific assurances from the U.S. authorities in relation to civil commitment.
[41] The main basis for the Minister’s decision was that procedural safeguards apply in the U.S. federal context, and that a similar regime exists in Canada for commitment. The applicant has not explained why the Minister’s conclusions in relation to civil commitment are unreasonable or why the principle set out in Viscomi, reproduced above, would not apply here. The fact that the Minister in a different context did seek such an assurance (principally motivated by a specific concern about a specific state’s civil commitment scheme) is not a basis for interference with the Minister’s discretion in this case.
[42] In my view, this ground of judicial review fails. . United States v. Norbu
In United States v. Norbu (Ont CA, 2023) the Court of Appeal addresses an extradition case, both appeal and judicial review procedures:[1] Tenzin Norbu appeals a committal order to await his surrender to the United States of America to stand trial on charges arising from an immigration fraud scheme. He also seeks judicial review of a surrender order of the Minister of Justice (the “Minister”). For the following reasons, I would dismiss both the appeal and the application.
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The Appeal of the Committal Order
A. ISSUES
[10] On appeal of the committal order, the appellant essentially renews the two arguments that were dismissed below; namely, that the application judge erred in finding that there was sufficient evidence to establish that:1. the appellant was the person who is alleged to have committed the offences and is sought for extradition; and
2. the appellant (or rather, the person alleged to have committed the offences) knew that the applications of the 31 persons who did not provide affidavits were fraudulent. [11] I am unpersuaded that the application judge made either error.
B. ANALYSIS
(1) There was sufficient identification evidence for extradition purposes
[12] As noted, the appellant argued that the extradition judge erred in concluding that the identification evidence was sufficient to ground a committal order. He advanced three sub-arguments:i. the name Tenzin Norbu is so exceedingly common among Tibetans, the fact that he bears the same name as the person named in the ROC cannot be sufficient evidence that he is the person sought;
ii. the photo identification provided in the ROC was undated and unsourced and there was no evidence independent of the two identification witnesses to conclude that it was a photograph of the appellant; and
iii. the extradition judge erred in making his own identification of the appellant at the hearing, which took place via Zoom. [13] The role of the application judge in an extradition hearing is established and limited by statute:[T]he role of the extradition judge is a modest one; absent express statutory or treaty authorization, the sole purpose of an extradition hearing is to ensure that the evidence establishes a prima facie case that the extradition crime has been committed.
Republic of Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536, at para. 29. [14] The criteria for committal of a person sought for prosecution abroad is set out in s. 29(1) of the Extradition Act, S.C. 1999, c. 18:A judge shall order the committal of the person into custody to await surrender if … (a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner. [15] An extradition hearing is not a trial. It is intended, rather, to be “an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canada’s international obligations”: United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 122. Although an extradition judge may not refuse extradition simply because the case appears to be unlikely to succeed at trial, the extradition judge can exclude evidence that is “manifestly unreliable”: United States of America v. Ferras; United States of America v. Latty, 2006 SCC 33, [2006] 2 S.C.R. 77, at para. 40. This allows for a limited weighing of the evidence to determine whether the evidence adduced in the ROC is sufficient for the accused to stand trial: Ferras, at paras. 39-49 and 54.
[16] In order to justify committal for extradition, the requesting state must make out a prima facie case of the offence set out in the Authority to Proceed. Sections 32 and 33 of the Extradition Act provide that the determination of whether a prima facie case has been met may proceed on the basis of a certified summary of the evidence that is available for prosecution.
[17] With respect to establishing the identity of the person before the court, s. 37 of the Extradition Act provides that the court may accept as evidence in support of the request for extradition:(a) the fact that the name of the person before the court is similar to the name that is in the documents submitted by the extradition partner; and
(b) the fact that the physical characteristics of the person before the court are similar to those evidenced in a photograph, fingerprint or other description of the person. [18] The appellant’s name is not merely similar but identical to the name of the person sought for extradition. The appellant does not deny this. The extradition judge accepted the evidence of the appellant’s name as some evidence in support of extradition, as he was entitled to do under s. 37(a).
[19] The appellant alleges mistaken identity, but he has not provided an evidentiary basis for that conclusion, as would be required for the argument to succeed given the evidence to the contrary: United States of America v. Odale, 2013 ABCA 178, 553 A.R. 132, at paras. 14-15, leave to appeal refused, 2013 CarswellAlta 1991. Mere assertion of the commonality of one’s name within one’s ethnic community is insufficient and the extradition judge made no error in this regard.
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[30] ... The requesting state is not required to submit its entire case for prosecution. A summary of what the appellant is alleged to have done with respect to a few applicants can be sufficient to allow the inference that the remaining applicants were likewise caught up in a broader fraudulent scheme: see e.g., United States of America v. Anekwu, 2009 SCC 41, [2009] 3 S.C.R. 3; United States of America v. Orphanou, 2011 ONCA 612, 107 O.R. (3d) 365; United States of America v. Beltran, 2010 ONSC 6451.
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Judicial Review of the Minister’s Surrender Order
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[34] The decision to order or refuse surrender is discretionary. The exercise of discretion is guided by the Extradition Act and the relevant treaty with the requesting state, and subject to the Charter. Section 44(1) of the Extradition Act provides that the Minister “shall refuse to make a surrender order if the Minister is satisfied that (a) the surrender would be unjust or oppressive having regard to all the relevant circumstances”. The judicial review of such a decision is conducted on the reasonableness standard: India v. Badesha, 2017 SCC 44, 412 D.L.R. (4th) 411, at para. 39. . United States v. Barnes
In United States v. Barnes (Ont CA, 2023) the Court of Appeal stated the JR SOR for a surrender for extradition, and then considered the extradition role of race and health problems:[3] The Minister’s decision to surrender for extradition is reviewed pursuant to the reasonableness standard, as this court explained in United States v. Hillis, 2021 ONCA 447, 156 O.R. (3d) 525, at paras. 83-88.
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[5] The Minister agreed that the applicant’s race was relevant to his surrender decision and applied the test set out by this court in United States of Mexico v. Hurley (1997), 1997 CanLII 3355 (ON CA), 35 O.R. (3d) 481 (C.A.).
[6] On the first prong of the Hurley test, the Minister found there was evidence of systemic racism against Black people in the United States. On the second prong, the Minister acknowledged the applicant’s concerns about discrimination and obtained information concerning a prior offence committed by the applicant in Florida, which resulted in a no-contest plea, as well as information about the Florida justice system provided by the Florida state prosecutor. The Minister concluded that the applicant failed to establish, on a balance of probabilities, that he would be persecuted based on his race. His conclusion was based on his consideration of Florida state constitutional guarantees, statutory protections available to the applicant in Florida, and Florida’s initiatives to identify and redress disparate treatment on the basis of race and ethnicity. The Minister’s conclusion was amply supported by the record that was before him and is reasonable.
[7] Second, the applicant argues that he requires considerable health care and that, although the Minister acknowledged this, he wrongly found that the applicant would receive the surgery and medical treatment he required, a finding that the applicant says was not supported by the evidence.
[8] We do not agree.
[9] As the Minister noted in his decision, the fact that a person sought for extradition has health problems does not, in itself, render surrender unjust or oppressive, or violate the principles of fundamental justice. Moreover, the Minister was entitled to rely on representations from the U.S. authorities concerning the applicant’s access to medical care: United States v. Levy, 2019 ONCA 915, 452 C.R.R. (2d) 1, at paras. 19-20. It was not necessary for the Minister to seek assurances from the prosecuting state that the applicant’s medical needs would be sufficiently addressed. The Minister considered the request for a postponement of the extradition on medical grounds and rejected it because treatment options were available to the applicant in the United States.
[10] We are satisfied that it was reasonable for the Minister to find, on the record before him, that the applicant’s health could be managed with appropriate care that would be available in either pre-trial or post-conviction custody in Florida, and that the effect of surrender would not be unjust or oppressive. . Czech Republic v. Karicka
In Czech Republic v. Karicka (Ont CA, 2023) the Court of Appeal considered a JR of an extradiction order:[3] The Minister concluded that there was no justification to refuse the applicant’s surrender to the Czech Republic as (i) surrender would not be contrary to the relevant extradition agreement in this case, namely the Treaty Between His Majesty and Czechoslovakia, for the Extradition of Criminals[1], (ii) it would not be unjust or oppressive, and (iii) it would not breach the applicant’s s. 7 Charter rights. He therefore ordered his surrender to the Czech Republic.
[4] The standard of review of the Minister’s decision is reasonableness. Interference with the Minister's decision will be limited to exceptional cases of "real substance". It is not this court’s role to reassess the factors considered by the Minister or substitute its own view. “The court must determine whether the Minister’s decision falls within a range of reasonable outcomes”: Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 41. This reflects the breadth of the Minister's discretion: Lake, at paras. 34-41; India v. Badesha, 2017 SCC 44, [2017] 2 S.C.R. 127, at para. 39; Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609, at para. 22; and United States of America v. Johnstone, 2013 BCCA 2, at para. 32. Courts must also recognize the constraints on the Minister imposed by international law including treaty obligations: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 105-7, 114. In that regard, the Supreme Court of Canada has recognized that the Minister enjoys “superior expertise” in relation to these international obligations and foreign affairs, including the extent to which they factor into his assessment of a fugitive’s claim that extradition would violate their rights under the Charter: Lake, at para. 37.
[5] In arriving at his decision, the Minister is entitled to rely on information provided by the requesting state “without the need for further inquiry”: Scarpitti v. United States of America, 2007 BCCA 498, 228 C.C.C. (3d) 262, at para. 67. The applicant has the onus to demonstrate that he would face actual risk of persecution if he is surrendered to the Czech Republic.
[6] We find the Minister’s decision was reasonable.
[7] First, the Minister recognized the historical and persistent problems with the respect to the treatment of the Roma people and the applicant’s claims about his experiences. The Minister did not find that this was why the applicant left the Czech Republic. He noted the improvements in conditions for Roma people with tangible results in the last decade, and the mechanisms that have been put into place to combat racism. At the oral hearing of this appeal, the applicant’s counsel conceded that the situation has improved. In the absence of any evidence that he will face persecution if surrendered, it was reasonable for the Minister to rely on the improved conditions: Mexico v. Hurley (1997), O.R. (3d) 481, 1997 CarswellOnt 2172, at paras. 50, 61-64 (Carswell) (C.A.); Hungary v. Dascalu, 2009 BCCA 132, 244 C.C.C. (3d) 98, at paras. 27-29.
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[11] Third, the Minister noted that in Canada, the equivalent offences for break and entry causing damage would carry a maximum term of life imprisonment, and he determined that it is not shocking to the Canadian conscience to serve a two-year sentence for these offences with credit for presentence custody on a 1:1 basis with approximately 10 months remaining on his sentence. This is consistent with other cases in which the courts have held that severe sentences will generally not shock the conscience of Canadians unless they invoke consequences comparable to torture, the death penalty or excision of limbs and it is not for the Minister to assess whether foreign mandatory minimum penalties would be unconstitutional under Canadian law as that would amount to an impermissible extraterritorial application of s. 12 of the Charter: United States v. Hillis, 2021 ONCA 447, at paras. 103-106. . United States v. Sychantha
In United States v. Sychantha (Ont CA, 2023) the Court of Appeal considered an appeal of an extradition committal order:[3] The appellant was unrepresented at the extradition hearing. The appellant had had several lawyers acting for him up to the hearing but, in each case, he had discharged the lawyer. Indeed, a Rowbotham order had been obtained prior to the hearing to provide the appellant with a lawyer but the appellant also discharged that lawyer.
[4] The appellant does not argue that the evidence provided by the requesting state as presented on the committal hearing did not justify committal. Rather, he now contends that the extradition hearing was unfair because the extradition judge did not provide him with sufficient assistance given his unrepresented status. We do not agree. We do not see anything that the extradition judge failed to do that materially affected the fairness of the hearing. It is always possible to argue that the presiding judge could have done more. Perfection is not, however, the standard to be applied. The appellant must demonstrate a serious failure and that he has not done: R. v. Forrester, 2019 ONCA 255, at para 17.
[5] The appellant’s main complaint is that the evidence in the record identifying him as the person who supplied the drugs was flawed. Again, we do not agree. Six separate witnesses identified the appellant by photographs shown to them. In addition, details about each witness’s personal familiarity with the appellant were provided. It is noteworthy that many of the witnesses had ongoing contact with the appellant, mostly in person, on multiple occasions over the course of many months. The appellant was not a stranger to the witnesses.
[6] In any event, any challenge to the quality of the identification process is a matter for trial. In that regard, it is important to remember that the test to be applied by an extradition judge under s. 29(1)(a) of the Extradition Act, S.C. 1999, c. 18 is the committal test applied by a justice at a preliminary inquiry in a domestic Canadian prosecution. Consequently, the extradition judge does not evaluate the strength of the case, nor do they generally evaluate the credibility or reliability of the witnesses. The evidence must be rendered "so defective" or "so unreliable" before an extradition judge can disregard it: U.S.A. v. Anderson, 2007 ONCA 84, at paras 28-31. . United States v. Creighton
In United States v. Creighton (Ont CA, 2023) the Court of Appeal considered when surrender of a person under extradition would offend Charter s.7 and the Extradition Act:[2] The Minister’s decision to surrender for extradition is entitled to substantial deference: Lake v. Canada, 2008 SCC 23, at para. 41. The Minister must apply the correct legal principles and engage in the proper legal analysis. The Minister must also reach a “defensible” conclusion on the application of the relevant principles to the facts as found by the Minister: United States of America v. Leonard, 2012 ONCA 622, at para. 48, leave to appeal refused, [2012] S.C.C.A. No. 490.
[3] If the applicant cannot demonstrate a material legal error, this court will interfere with the Minister’s decision only if that decision is outside a range of reasonable outcomes.
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[9] Surrender of a person for extradition in circumstances that would “shock the conscience of the community” contravenes that person’s rights under s. 7 of the Charter: United States v. Burns, 2001 SCC 7, at para. 60; Canada v. Fischbacher, 2009 SCC 46. The Minister must also refuse to surrender a person if, in all the circumstances, the surrender would be “unjust or oppressive”: Extradition Act, s. 44(1)(a). The constitutional standard and the statutory provision overlap: Lake, at para. 24, Fischbacher, at para. 39.
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