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Criminal - Extradition (2). United States v. Mann
In United States v. Mann (Ont CA, 2024) the Ontario Court of Appeal dismissed an extradition JR of a surrender order, here where the applicant argued that "the Minister [SS: of Justice] fettered his discretion by adopting the committal judge’s reasons wholesale and also failed to meaningfully consult with the Minister for Immigration, Refugees and Citizenship Canada (IRCC), as required by s. 40(2) of the Extradition Act":[29] It is agreed that the standard of review of the Minister’s decision to order the applicant’s surrender is reviewable on a standard of reasonableness.
[30] The appellant argues that the Minister’s reasons on the private use exception relied exclusively on the committal judge’s reasons, which amounts to an impermissible delegation of discretion. We do not agree that the Minister did so. The Minister reviewed the appellant’s submissions and the record in front of him before agreeing with some of the committal judge’s conclusions. The Minister further noted that he must balance any absence of an equivalent defence in the U.S. against other criteria such as Canada’s treaty obligations. We see no basis to disturb the discretionary balancing engaged in by the Minister.
[31] The appellant further argues that the Minister’s decision was unreasonable because he failed to meaningfully consult with the IRCC, as required by s. 40(2) of the Extradition Act. While the appellant concedes that the Minister of Justice did consult with the IRCC, he argues that this consultation was insufficient because the latter concluded that it would be premature to conduct a risk assessment in relation to the appellant’s potential deportation to India following his extradition to the United States.
[32] We see no merit to this ground of appeal. The Minister of Justice provided the IRCC with relevant information respecting the appellant’s circumstances and the proposed extradition to the U.S. The IRCC subsequently provided the Minister with its assessment, which included information on the potential implications of the extradition proceedings on the appellant’s Canadian immigration status, a risk assessment for the U.S., and potential relief available to the appellant to resist removal from the U.S.
[33] It is true that the IRCC concluded that it would be premature to conduct a risk assessment with respect to the appellant’s potential deportation to India, as such deportation was not an entirely foreseeable consequence of his extradition to the United States. As the IRCC pointed out, even if extradited, the appellant still faced trial in the U.S. and potential incarceration if convicted before any removal to India could be contemplated. The IRCC’s finding of prematurity aligns with the Charter and Canada’s international human rights obligations, which require that a risk assessment be contemporaneous with a refugee claimant’s removal to the country against which they claim protection: Németh v Canada, 2010 SCC 56, [2010] 3 S.C.R. 281, at paras. 50, 103 and 114; Bulaman v. Canada, 2015 QCCA 1473, at paras. 62-69.
[34] The IRCC’s assessment was meaningfully taken into account by the Minister of Justice in his surrender decision. In particular, the Minister relied upon the information provided by the IRCC regarding avenues available to the appellant to challenge his potential removal from the U.S. The Minister made further inquiries with the U.S. Department of Justice about the removal process and the availability of mechanisms throughout to prevent deportation. All this information enabled the Minister to knowledgeably evaluate the appellant’s concerns regarding the possibility of his subsequent deportation to India if he were extradited to the U.S.
[35] The Minister meaningfully consulted with the IRCC, as required by s. 40(2) of the Extradition Act, and his surrender order was reasonable. We therefore dismiss the appellant’s application for judicial review of that order. . 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 considered the committal to trial in Canada issue:[24] .... The committal judge noted that extradition judges have a circumscribed and limited screening function. Their role is to determine whether there is a prima facie case of a Canadian crime having been committed, and not to become embroiled in questions about possible defences or the likelihood of conviction: M. M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at para. 38. ....
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