Application for Judicial Review

• Author: Nancy L. Dennison/Seth Weinstein
• Pages: 361-406

361

Application for

Judicial Review

16

I. Perfecting the Application for Judicial Review ................... 362

A. Bail Pending the Application for Judicial Review ........... 362

B. Filing Material ...................................... 363

II. Powers of the Court of Appeal on an Application for

Judicial Review ........................................... 364

A. Receiving Evidence and Disclosure ..................... 364

B. Remedies in Relation to the Surrender Order ............. 365

III. Standard of Review of the Minister’s Surrender Decision ......... 366

IV. Challenges to the Minister’s Surrender Decision ................ 367

A. Procedural Fairness Challenges ........................ 367

B. Challenges to Decision That Extradition Is a Justifiable

Limitation of Charter Section6(1) ...................... 370

C. Challenges Alleging Surrender Is Contrary to Principles of

Fundamental Justice, Contrary to Charter Section7,

or Is Unjust or Oppressive, Contrary to Extradition

Act Section44(1)(a) ................................. 374

D. Section 44(1)(b) of the Act: Refugee Status .............. 396

E. Double Jeopardy .................................... 399

V. Conclusion .............................................. 401

Appendix 16.1 Sample Application for Judicial Review ........... 402

Appendix 16.2 Sample Application for Bail Pending Application

for Judicial Review ........................... 405

362 Prosecuting and Defending Extradition Cases: A Practitioner’s Handbook

I. Perfecting the Application for Judicial Review

If the person being sought for extradition is ordered surrendered by the minister of

justice, the person will have to consider whether to bring an application for judicial

review of the minister’s surrender decision. The person sought will receive a copy of

the order of surrender and written reasons from the minister.

An application for judicial review of the minister’s surrender decision is heard by

the relevant court of appeal,1 not the federal court. Section57 of the Act states:

57(1) Despite the Federal Courts Act, the court of appeal of the province in which the

committal of the person was ordered has exclusive original jurisdiction to hear and

determine applications for judicial review under this Act, made in respect of the decision

of the Minister under section40.

(2) An application for judicial review may be made by the person.

The deadline for filing an application for judicial review is 30 days from the date of

receipt of the minister’s decision, although this may be varied by the court. Sec-

tion57(3) of the Act states:

(3) An application for judicial review shall be made, in accordance with the rules of

court of the court of appeal, within 30 days after the time the decision referred to in sub-

section (1) was first communicated by the Minister to the person, or within any further

time that the court of appeal, either before or after the expiry of those 30 days, may fix

or allow.

Included in Appendix 16.1 to this chapter is a sample notice of application for ju-

dicial review of the minister’s surrender decision in Ontario. One should also consult

the relevant court of appeal rules to determine the form of the notice as well as the

number of copies that must be provided to the court.

A. Bail Pending the Application for Judicial Review

A person has the right to apply for bail pending the hearing of the application for judicial

review, pursuant to section57(4) of the Act. Section57(4) incorporates section679 of

the Criminal Code2 “with any modifications that the circumstances require.” Accord-

ingly, the person sought must establish (1)that the application for judicial review is

not frivolous; (2)that the person will surrender into custody in accordance with the

terms of the release; and (3)that the person’s detention is not necessary in the public

1 Section 2 of the Extradition Act, SC 1999, c18 defines “court of appeal” as the Court of

Appeal in all provinces except for Prince Edward Island, where it is the Appeal Division of

the Supreme Court.

2 Criminal Code, RSC 1985, cC-46.

Chapter 16 Application for Judicial Review 363

interest. This test is the same as the one applied to bail pending appeal of the committal

order, as discussed in detail in Chapter13. Appendix16.2 to this chapter is a sample

notice of application for bail pending an application for judicial review.

B. Filing Material

As noted in section 57(10) of the Act, the laws and rules that apply to applications for

judicial review apply to applications for judicial review of the minister’s surrender

decision with any necessary modifications:

(10) Unless inconsistent with the provisions of this Act, all laws, including rules,

respecting judicial review in force in the province of the court of appeal apply, with any

modifications that the circumstances require, to applications under this section.

Pursuant to section 57(5) of the Act, an application for judicial review is to be

scheduled at an early hearing, whether that date is in or out of the prescribed sessions

of the court, consistent with the view that extradition proceedings are meant to be

expeditious.

As a practical matter, at least in Ontario, once the notice of application is filed with

the court, the attorney general will generally file all of the material that was before the

minister, with the exception of any legal opinion, because that is privileged. Counsel

will then ask for the attorney general’s consent for the material to be released from the

court to counsel so that counsel for the applicant can prepare the application record.3

There is an exception to this general practice and that is where privilege is asserted.

This situation has arisen where the person sought has argued that they are an informant

and that this is relevant to the minister’s surrender decision.4 In this situation, which

occurred in AB5 and in XY,6 the person sought brought an application to file on the

appeal and an application for judicial review materials under seal on the basis that the

person sought was an informant. The Ontario Court of Appeal required that the media

be given notice of this application, so before bringing such an application, one should

check with the relevant court of appeal to determine whether there is a protocol in

place for notifying the media of such applications.

In considering whether the file should be sealed, the court must first be satisfied

on the balance of probabilities that the person sought is an informant. Counsel for the

attorney general may or not agree with the assertion, but the ultimate determination

is made by the court.

3 See rule 11 of the Ontario Criminal Appeal Rules, SI/93-169.

4 XY v United States, 2015 ONCA 773 [XY (2015 ONCA)].

5 AB v Attorney General (Canada) (16 June 2016), C60934 (Ont CA).

6 XY v United States, 2013 ONCA 497 [XY (2013 ONCA)].