Canada (Attorney General) v. Barnaby, (2015) 471 N.R. 190 (SCC)

• Judge: McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 23, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 471 N.R. 190 (SCC);2015 SCC 31;[2015] 2 SCR 563;323 CCC (3d) 185;2015 CanLII 20665 (SCC)

Can. (A.G.) v. Barnaby (2015), 471 N.R. 190 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.R. TBEd. MY.025

Attorney General of Canada (appellant) v. Anthony Barnaby (respondent)

(35548; 2015 SCC 31; 2015 CSC 31)

Indexed As: Canada (Attorney General) v. Barnaby

Supreme Court of Canada

McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté, JJ.

April 23, 2015.

Summary:

The Minister of Justice of Canada signed extradition orders ordering Barnaby's surrender to the State of New Hampshire on murder charges. Barnaby had proceeded to trial on three occasions, in 1989 and 1990. Each trial ended in a hung jury. At the conclusion of the third trial, the prosecution entered a dismissal. In 2010, the New Hampshire authorities reopened the investigation. In 2011, evidence seized from the crime scene was submitted for DNA testing. Barnaby applied for judicial review of the Minister's surrender order.

The Quebec Court of Appeal, in a decision with neutral citation 2013 QCCA 1305, allowed the judicial review application. The Court found that the new DNA evidence did not link Barnaby to the crimes. "In these circumstances, the only issue is whether a fourth trial would constitute an abuse of process in his case." The Court concluded that "a fourth trial would be contrary to the protection afforded by the Charter". The Minister appealed.

The Supreme Court of Canada allowed the appeal and reinstated the surrender order.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi- criminal proceedings - Extradition proceedings - [See first and second Extradition - Topic 3947 ].

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - [See Extradition - Topic 22 ].

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See first and second Extradition - Topic 3947 ].

Extradition - Topic 8

General - Extradition - Application of Charter - [See first and second Extradition - Topic 3947 ].

Extradition - Topic 22

General - Bars to extradition - Abuse of process - The Minister of Justice (Can.) ordered Barnaby's surrender to the United States for a fourth trial on murder charges, more than 20 years after the alleged murders - Three previous trials had each ended in a hung jury - The Quebec Court of Appeal allowed Barnaby's application for judicial review - The Supreme Court of Canada, in reinstating the surrender order, addressed Barnaby's argument that the Minister applied the wrong test for abuse of process - "The Minister stated that to find an abuse of process, evidence of bad faith or an improper motive on the part of the foreign authorities is required. We agree with Mr. Barnaby that this was not a correct statement of the law. ... [A]buse of process also captures conduct short of bad faith that nonetheless risks undermining the integrity of the justice system." - That error, however, did not render the Minister's decision unreasonable - "The many factors that the Minister is required to balance in the extradition context means that our domestic abuse of process doctrine cannot automatically be equated with the 'shocks the conscience' standard. Whether or not Canada would label these circumstances an abuse of process is therefore not determinative of the question the Minister was required to answer. Reading the Minister's reasons as a whole, it is clear that he considered all of the relevant factors pertaining to the issue before him." - See paragraphs 10 and 11.

Extradition - Topic 23

General - Bars to extradition - Charter breaches - [See first and second Extradition - Topic 3947 ].

Extradition - Topic 2607

Evidence and procedure before examining judge - General - Role of extradition judge - [See fifth Extradition - Topic 3947 ].

Extradition - Topic 3342

Surrender to demanding country - Conditions precedent - That surrender not be unjust or oppressive - [See first Extradition - Topic 3947 ].

Extradition - Topic 3360

Surrender to demanding country - Considerations - General - [See third Extradition - Topic 3947 ].

Extradition - Topic 3384

Surrender to demanding country - Procedure - Due process and fundamental justice - [See first Extradition - Topic 3947 ].

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender (incl. standard of review) - The Minister of Justice (Can.) ordered Barnaby's surrender to the United States for a fourth trial on murder charges, more than 20 years after the alleged murders - Three previous trials had each ended in a hung jury - The Quebec Court of Appeal allowed Barnaby's application for judicial review - The Supreme Court of Canada reinstated the surrender order - "First, the Court of Appeal did not apply the correct legal test. The question before the court was whether the Minister's decision to surrender Mr. Barnaby was reasonable. In analyzing this question, the court stated that 'the only issue is whether a fourth trial would constitute an abuse of process in his case' ... . However, the issue was not whether submitting Mr. Barnaby to a fourth trial would constitute an abuse of process - either in Canada or in the United States. Rather, the issue was whether extraditing Mr. Barnaby to face a situation in which he may be subjected to a fourth trial would be contrary to the principles of fundamental justice guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms so as to 'shock the conscience' or otherwise be 'unjust or oppressive' under s. 44(1) of the Extradition Act ... . Properly analyzed, this question requires the Minister to engage in a balancing exercise, which recognizes that the principles of fundamental justice usually support extradition ... . It is only where a 'particular treatment' in the requesting state - in this case, the possibility of holding a fourth trial so many years after the alleged crime - sufficiently violates our sense of fundamental justice that the balance will be tilted against extradition" - See paragraph 2.

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender (incl. standard of review) - The Minister of Justice (Can.) ordered Barnaby's surrender to the state of New Hampshire on murder charges, more than 20 years after the alleged murders - Three previous trials had each ended in a hung jury - The Quebec Court of Appeal allowed Barnaby's application for judicial review - The Supreme Court of Canada, in reinstating the surrender order, stated that "The Court of Appeal was required to assess the Minister's weighing of the various relevant factors to determine whether his conclusion was reasonable. The court did not do so. In coming to the conclusion that the Minister's surrender order was unreasonable, the court did not turn its mind to the key factors that supported the reasonableness of the Minister's decision. One important benchmark is whether subjecting an accused to a fourth trial under similar circumstances in Canada would constitute a breach of the principles of fundamental justice. It is clear that there is no per se rule to that effect. The parties have pointed us to Canadian case law suggesting that fourth trials are permissible in some circumstances ... . From this, it is apparent that a fourth trial cannot be viewed as invariably constituting a breach of s. 7. All of the circumstances must be assessed. The material before us is to the effect that the United States case law takes a broadly similar approach. ... In fact, it appears that broadly similar principles will be applied in New Hampshire as would be applied here in order to determine whether a fourth trial, under all of the circumstances, is fair and just." - See paragraphs 3 to 5.

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender (incl. standard of review) - The Minister of Justice (Can.) ordered Barnaby's surrender to United States, on murder charges, more than 20 years after the alleged murders (three previous trials had each ended in a hung jury) - The Quebec Court of Appeal allowed Barnaby's application for judicial review - The Supreme Court of Canada, in reinstating the surrender order, held that the Court of Appeal failed to consider the principle of comity and Canada's international obligations - "A refusal of surrender is deeply inconsistent with the principles of international cooperation that are the foundation of an extradition treaty. The Minister had to give weight to these principles and the Court of Appeal erred in failing to recognize this." - See paragraph 6.

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender (incl. standard of review) - The Minister of Justice (Can.) ordered Barnaby's surrender to United States, on murder charges, more than 20 years after the alleged murders - Three previous trials had each ended in a hung jury - The Quebec Court of Appeal allowed Barnaby's application for judicial review - The Supreme Court of Canada, in reinstating the surrender order, held that the Court of Appeal erred in concluding that there was no "true 'new evidence'" against Barnaby - The foreign authorities certified that there was new evidence against Barnaby - On the record, it was clear that some testimonial evidence related to facts and conversations that only occurred in recent years - In addition, there was new DNA evidence that, if accepted, would directly implicate his co-accused - In doing so, it would also indirectly implicate Barnaby - "This evidence may be considered confirmatory of Mr. Barnaby's prior statements that the two men committed the murders together. Given that Mr. Barnaby did not indicate why he did not believe this evidence to be new, the Minister was entitled to rely on the representations of the U.S. authorities that it was new evidence for the purposes of his analysis." - See paragraph 7.

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender (incl. standard of review) - The Minister of Justice (Can.) ordered Barnaby's surrender to United States, on murder charges, more than 20 years after the alleged murders - Three previous trials had each ended in a hung jury - The Quebec Court of Appeal allowed Barnaby's application for judicial review - The Supreme Court of Canada, in reinstating the surrender order, stated that "[i]t is for the extradition judge - not for the Minister or a court reviewing the Minister's decision - to determine whether there is sufficient evidence to warrant committal. Once the person sought has been committed, 'weighing the evidence or assessing its reliability are matters for trial in the foreign jurisdiction. [These] are not matters for the Minister to address when considering whether to surrender the [person sought]'" - See paragraph 8.

Cases Noticed:

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. 2].

Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761; 373 N.R. 339; 236 O.A.C. 371; 2008 SCC 23, refd to. [para. 2].

R. v. Badgerow (R.) (2014), 321 O.A.C. 1; 119 O.R.(3d) 399; 2014 ONCA 272, leave to appeal refused, [2014] 3 S.C.R. v, refd to. [para. 3].

R. v. Anderson (R.T.) (2002), 155 O.A.C. 216; 57 O.R.(3d) 671 (C.A.), refd to. [para. 3].

Caplin v. Canada (Minister of Justice) (2015), 471 N.R. 199; 2015 SCC 32, refd to. [para. 7].

Germany (Federal Republic) et al. v. Schreiber (2006), 207 O.A.C. 306; 206 C.C.C.(3d) 339 (C.A.), leave to appeal refused, [2007] 1 S.C.R. xiv; 364 N.R. 396, refd to. [para. 8].

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. 8].

R. v. Babos (A.), [2014] 1 S.C.R. 309; 454 N.R. 86; 2014 SCC 16, refd to. [para. 10].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 2].

Extradition Act, S.C. 1999, c. 18, sect. 44(1) [para. 2].

Counsel:

Marc Ribeiro and Ginette Gobeil, for the appellant;

Clemente Monterosso and Marie-Philippe Tanguay, for the respondent.

Solicitors of Record:

Attorney General of Canada, Montreal, Quebec, for the appellant;

Clemente Monterosso, Montreal, Quebec; Marie-Philippe Tanguay, Montreal, Quebec, for the respondent.

This appeal was heard and judgment rendered on April 23, 2015, by McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté, JJ., of the Supreme Court of Canada. The following reasons were delivered on May 29, 2015, in both official languages.