Acosta v. Canada (Minister of Justice), (2013) 334 B.C.A.C. 312 (CA)

• Judge: Saunders, Kirkpatrick and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: Thursday January 31, 2013
• Jurisdiction: British Columbia
• Citations: (2013), 334 B.C.A.C. 312 (CA);2013 BCCA 105

Acosta v. Can. (2013), 334 B.C.A.C. 312 (CA);

    572 W.A.C. 312

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. MR.026

Erlan Lizandro Acosta (appellant/respondent) v. The Attorney General of Canada on behalf of the Minister of Justice of Canada (respondent/applicant)

(CA039810; 2013 BCCA 105)

Indexed As: Acosta v. Canada (Minister of Justice)

British Columbia Court of Appeal

Saunders, Kirkpatrick and Garson, JJ.A.

March 12, 2013.

Summary:

Acosta applied for judicial review of a decision by the Minister of Justice to surrender him to the United States for prosecution for child molestation and rape.

The British Columbia Court of Appeal dismissed the application.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - [See Extradition - Topic 3348].

Extradition - Topic 3348

Surrender to demanding country - Conditions precedent - Similarity of crimes between jurisdictions (rule of double criminality) - Acosta applied for judicial review of a decision by the Minister of Justice to surrender him to the United States for prosecution for child molestation and rape - Acosta claimed that the Minister erred by issuing an authority to proceed for the offence of sexual interference (Criminal Code, s. 151), knowing that Acosta would face more serious charges and penalties in the United States - The British Columbia Court of Appeal dismissed the appeal - Canada used a conduct-based approach to double criminality, and the conduct alleged against Acosta fell within the parameters of sexual interference - There was no breach of s. 7 of the Charter in sending Acosta to the United States to face a potential penalty of life imprisonment - That prospect was not so extreme as to "shock the conscience" - See paragraphs 1 to 22.

Cases Noticed:

Canada (Minister of Justice) v. Fischbacher, [2009] 3 S.C.R. 170; 394 N.R. 139; 255 O.A.C. 288; 2009 SCC 46, refd to. [para. 5].

United States of America v. Cobb et al., [2001] 1 S.C.R. 587; 267 N.R. 203; 145 O.A.C. 3; 152 C.C.C.(3d) 270; 2001 SCC 19, refd to. [para. 17].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [para. 20].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 20].

Reference Re Ng Extradition, [1991] 2 S.C.R. 858; 129 N.R. 177; 119 A.R. 300; 84 D.L.R.(4th) 498, refd to. [para. 20].

United States of America et al. v. J.H.K. (2002), 160 O.A.C. 148; 165 C.C.C.(3d) 449 (C.A.), leave to appeal refused [2002] S.C.C.A. No. 51, refd to. [para. 21].

Whitley v. United States of America (1994), 75 O.A.C. 100; 119 D.L.R.(4th) 693; 94 C.C.C.(3d) 99 (C.A.), refd to. [para. 21].

Counsel:

G.N.A. Botting, for the appellant;

K. Swift, for the respondent.

This judicial review was heard in Vancouver, B.C., on January 31, 2013, before Saunders, Kirkpatrick and Garson, JJ.A., of the British Columbia Court of Appeal. The following decision was delivered for the court by Kirkpatrick, J.A., on March 12, 2013.