Cavan v. Canada (Minister of Justice) et al., (2015) 339 O.A.C. 272 (CA)

• Judge: Watt, Pepall and Huscroft, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 30, 2015
• Jurisdiction: Ontario
• Citations: (2015), 339 O.A.C. 272 (CA);2015 ONCA 664

Cavan v. Can. (2015), 339 O.A.C. 272 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. OC.002

In The Matter Of an application for judicial review pursuant to s. 57 of the Extradition Act, S.C. 1999, c. 18

The Minister of Justice and Attorney General of Canada and The United States of America (respondents) v. Han Cavan (applicant)

(C58169; 2015 ONCA 664)

Indexed As: Cavan v. Canada (Minister of Justice) et al.

Ontario Court of Appeal

Watt, Pepall and Huscroft, JJ.A.

October 2, 2015.

Summary:

Cavan consented to his committal for surrender to United States authorities for his alleged involvement in drug transactions. A judge ordered his committal. The Minister of Justice ordered Cavan's surrender. Cavan applied for judicial review, contending that the surrender order was fatally flawed by legal errors the Minister made in his decision.

The Ontario Court of Appeal dismissed the application and affirmed the surrender decision of the Minister.

Civil Rights - Topic 1340.1

Security of the person - Extradition - General - [See Extradition - Topic 3342 ].

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - [See Extradition - Topic 3342 ].

Civil Rights - Topic 3157.4

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

Extradition - Topic 4

General - Role of Minister (incl. duty of fairness) - The Ontario Court of Appeal reviewed the authority of the Minister of Justice to order or refuse surrender (Extradition Act, ss. 40 and s. 44(1)(a)) - The Court stated that "[t]he exercise of the Minister's power of surrender implicates the liberty and, in some cases, the security of the person sought. As a result, the Minister owes a duty of fairness both at common law and in accordance with the principles of fundamental justice under s. 7 of the Charter" - See paragraphs 42 to 49.

Extradition - Topic 19

General - Bars to extradition - Delay - The Minister of Justice ordered the applicant's surrender to the United States authorities - On judicial review, the applicant contended that the Minister made several errors in failing to find that surrender would not be unjust or oppressive (Extradition Act, s. 44(1)(a)) - His claim of abuse of process rested on a claim of undue delay in the initiation of extradition proceedings - The Ontario Court of Appeal stated that "[a] complaint of this kind comes uncomfortably close to an attempt to impose our standards on the timeliness of trial proceedings on foreign authorities or at least to gauge their conduct by such a standard. And this we cannot do. Not directly. And not indirectly. The Minister made an inquiry about the time that had elapsed from indictment to the initiation of extradition proceedings. He received a response, on its face reasonable - the accused persons had been indicted two days after the investigation concluded, and additional information in support of the charges had been gathered. The involvement of two different jurisdictions in the extradition of one of [the applicant's] co-defendants had required consultation and coordination. It was not unreasonable for the Minister to accept this response." - See paragraphs 68 and 69.

Extradition - Topic 19

General - Bars to extradition - Delay - The applicant was serving a sentence in Canada under the International Transfer of Offenders Act - Extradition proceedings were outstanding - The applicant's parole was suspended and later revoked by the Parole Board of Canada (PBC) - A surrender order to United States authorities was made in respect of the applicant's outstanding charges - The applicant sought judicial review, claiming that the Minister erred in his assessment of prejudice attributable to the delay in initiation of the extradition proceedings - The Ontario Court of Appeal held that no prejudice ensued from the pace at which extradition proceedings were pursued - "Decisions that involve the exercise of discretion are notoriously the subject of deference on review. Second, the fact that the extradition proceedings were outstanding formed no part of the decision of the PBC to suspend and later revoke the applicant's parole. ... It was the applicant's own conduct that compromised his conditional liberty, not the fact of extradition proceedings. ... Third, it does not follow ... from the fact U.S. authorities provided information to their Canadian counterparts about the alleged criminal activity of the applicant that the United States authorities were bound to accelerate the initiation of extradition proceedings. ... Fourth, any collateral consequences in Canada of alleged criminal activity in the United States are of no moment to United States authorities." - See paragraphs 82 to 89.

Extradition - Topic 22

General - Bars to extradition - Abuse of process - The applicant sought judicial review of the surrender order made by the Minister of Justice under s. 40 of the Extradition Act - The alleged errors included that the Minister imposed too rigorous a standard in responding to the applicant's submission that to surrender him to the United States would constitute an abuse of process - The Ontario Court of Appeal reviewed the two categories of abuse of process recognized in domestic proceedings - "Each would also be captured by s. 7 of the Charter. Each is rooted in state conduct. The main category encompasses state conduct that affects the fairness of the trial. The residual category takes in state conduct that contravenes fundamental notions of justice and thus undermines the integrity of the judicial process ... Abuse of process does not require evidence of bad faith or an improper motive on the part of the foreign authorities. It also captures conduct that falls short of bad faith but still risks undermining the integrity of the justice system" - The Court also considered the three requirements used to determine whether a stay of proceedings was warranted under either category of abuse of process - See paragraphs 51 to 57.

Extradition - Topic 22

General - Bars to extradition - Abuse of process - The Minister of Justice ordered the applicant's surrender to the United States authorities for his alleged involvement in drug transactions - On judicial review, the applicant alleged error in the test the Minister applied in rejecting the applicant's submission that surrender would constitute an abuse of process - The Ontario Court of Appeal rejected that claim of error - "The applicant is correct to say that the Minister erred in his statement that bad faith or improper motive are conditions precedent to a successful claim of abuse of process; however, reading his decision as a whole, the Minister applied the correct test. The Minister's reasons indicate that he considered all of the relevant factors pertaining to the issue before him, including the delay, [the applicant's] reincarceration and any potential prejudice. In addition, as the applicant put the bona fides of the requesting state in issue, it was appropriate for the Minister to consider whether the request for extradition was made in good faith or for some colourable purpose." - See paragraphs 60 to 62.

Extradition - Topic 22

General - Bars to extradition - Abuse of process - The applicant sought judicial review of the surrender order made by the Minister of Justice under s. 40 of the Extradition Act - His argument about abuse of process rested on a claim of unreasonable delay in the initiation of extradition proceedings (the residual category of abuse of process) - The Ontario Court of Appeal, as a reason for rejecting that argument, stated that "the applicant's invocation of the residual category of abuse of process requires a showing that the state conduct risks undermining the integrity of the extradition process. Such a showing would require evidence of conduct that is offensive to societal notions of fair play and decency. Cases warranting a stay of proceedings, and thus a refusal of surrender, on this ground are exceptional and rare. Nothing that occurred here amounts to an affront to fair play and decency that is disproportionate to the societal interest in the effective discharge of our international obligations to those accused of serious crimes in the jurisdiction of our extradition partner." - See paragraph 67.

Extradition - Topic 3342

Surrender to demanding country - Conditions precedent - That surrender not be unjust or oppressive - The applicant sought judicial review of the surrender order made by the Minister of Justice - He contended that the surrender order was unsupportable because the Minister made several errors in failing to find that surrender would not infringe the applicant's s. 7 Charter rights or would not be unjust or oppressive (Extradition Act, s. 44(1)(a)) - The Ontario Court of Appeal reframed the alleged errors as follows: "i. The Minister erred in law by applying the wrong test and confining abuse of process to cases of bad faith and improper motive and thereby imposing an erroneously high standard on the exercise of his discretion to refuse to order surrender; ii. by limiting prejudice to the impact of delay on the extradition hearing; and iii. by unfairly imposing a burden on the applicant to show that an earlier extradition request would have resulted in his earlier release from custody." - The Court considered each component of the "overarching submission of unreasonableness", and in the end result dismissed the application and affirmed the surrender decision of the Minister.

Extradition - Topic 3360

Surrender to demanding country - Considerations - General - The Ontario Court of Appeal commented on the relationship between the domestic proceedings before the Parole Board of Canada (PBC) and the impact of parole revocation on surrender for extradition - "Whether a prisoner serving a penitentiary sentence in Canada will receive parole and, if so, when and on what basis is determined by the PBC. It is of no moment to eligibility whether the sentence being served is for a domestic crime or for an offence committed elsewhere and served here under the International Transfer of Offenders Act. The Board is not a court. It is not bound by the traditional rules of evidence, but rather may act on information that would not be admissible in criminal trial proceedings. Nothing disentitles the PBC from acting on information gathered in a foreign jurisdiction. That said, foreign law enforcement authorities have no standing before the Board. Whether the foreign information is conveyed to the Board depends on domestic authorities. The use, if any, the Board makes of the information is determined by the Board in the exercise of its discretion." - See paragraphs 78 and 79.

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender (incl. standard of review) - The applicant sought judicial review of the surrender order made by the Minister of Justice under s. 40 of the Extradition Act - The alleged errors included that the Minister imposed too rigorous a standard in responding to the applicant's submission that to surrender him to the United States would constitute an abuse of process - The Ontario Court of Appeal considered the combined effect of several governing principles - Some of those principles "describe the standard of review of a surrender decision. Others define the scope of the doctrine of abuse of process. Still others interpret the duty of the Minister under s. 44(1)(a) of the Extradition Act. And others describe the extent to which, if at all, Canadian authorities can direct the manner in which our extradition partners carry out their investigation of offences and pursuit of extradition proceedings." - See paragraph 41.

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender (incl. standard of review) - The Ontario Court of Appeal, in considering the reasonableness standard of review for the decision to surrender, stated that the standard "does not command that reviewing courts be blindly submissive to the Minister's assessment. That said, the standard does entail more than one possible conclusion. Our role is not to reassess the relevant factors and substitute our own view for that of the Minister. What we must decide is whether the Minister's decision falls within a range of reasonable alternatives. We must ask ourselves: Did the Minister consider the relevant facts and reach a defensible conclusion based on those facts? Provided the Minister has identified the proper test, his conclusion should be upheld unless it is unreasonable, that is to say, falls outside the range of reasonable outcomes" - See paragraphs 58 and 59.

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender (incl. standard of review) - The applicant sought judicial review of the surrender order made by the Minister of Justice - He alleged error in the test the Minister applied in rejecting the submission that surrender would constitute an abuse of process or be unjust or oppressive (Extradition Act, s. 44(1)(a)) - The Ontario Court of Appeal rejected that claim of error, and further stated that "[i]n any event, the standard to be met to establish an abuse of process - a showing that the state conduct risks undermining the extradition process - is so far removed from what occurred here as to make the error of no consequence to the result. In reviewing the Minister's surrender decision on a standard of reasonableness, I proceed from a standard of deference owing to the discretionary nature of the decision, the superior expertise of the Minister and his obligation to ensure that Canada complies with its international obligations. His decision is principally an exercise of executive discretion, essentially political in nature, and at the extreme legislative end of the continuum of administrative decision-making. Further, I am mindful of the admonition that interference with the Minister's decision on surrender is to be limited to exceptional cases of 'real substance'." - See paragraphs 64 and 65.

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender (incl. standard of review) - The applicant was serving a sentence in Canada under the International Transfer of Offenders Act - Extradition proceedings were outstanding - The applicant's parole was suspended and later revoked by the Parole Board of Canada - A surrender order to United States authorities was made in respect of the applicant's outstanding charges - The applicant sought judicial review - An alleged error was that the Minister unfairly imposed a burden on the applicant to show that an earlier extradition request would have resulted in his earlier release from custody - The Ontario Court of Appeal affirmed the surrender decision - The general rule enacted by s. 64 of the Extradition Act was that the surrender order did not take effect until the person was discharged from custody - "First, I do not read the reasons of the Minister as imposing a burden on the applicant to demonstrate that more timely initiation of the extradition proceedings would have resulted in the applicant's earlier release. The reasons simply point out the general rule that s. 64(1) puts in place. ... Second, a contrary order by the Minister based simply on delay would offend comity in that it would necessarily imply ministerial authority to superintend the manner in which foreign authorities conduct their business. No such authority resides in the Minister." - See paragraphs 96 to 98.

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. 42].

United States of America v. Bonamie - see Bonamie, Re.

Bonamie, Re (2001), 293 A.R. 201; 257 W.A.C. 201; 2001 ABCA 267, refd to. [para. 46].

United States of America v. Cobb et al. (2001), 267 N.R. 203; 145 O.A.C. 3; 2001 SCC 19, refd to. [para. 46].

Németh v. Canada (Minister of Justice), [2010] 3 S.C.R. 281; 408 N.R. 198; 2010 SCC 56, refd to. [para. 48].

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. 49].

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161, refd to. [para. 50].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 51].

R. v. Nixon (O.), [2011] 2 S.C.R. 566; 417 N.R. 274; 502 A.R. 18; 517 W.A.C. 18; 2011 SCC 34, refd to. [para. 51].

R. v. Babos (A.), [2014] 1 S.C.R. 309; 454 N.R. 86; 2014 SCC 16, refd to. [para. 51].

Canada (Attorney General) v. Barnaby (2015), 471 N.R. 190; 323 C.C.C.(3d) 185; 2015 SCC 31, refd to. [para. 52].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 53].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 57].

R. v. Conway, [1989] 1 S.C.R. 1659; 94 N.R. 241; 34 O.A.C. 165, refd to. [para. 57].

United States of America v. Magnifico (2007), 227 O.A.C. 64; 223 C.C.C.(3d) 129; 2007 ONCA 535, refd to. [para. 58].

Canada (Minister of Justice) v. Hanson (2005), 209 B.C.A.C. 113; 345 W.A.C. 113; 2005 BCCA 77, refd to. [para. 80].

Statutes Noticed:

Extradition Act, S.C. 1999, c. 18, sect. 44(1)(a) [para. 28]; sect. 64(1) [para. 80]; sect. 66(1) [para. 81].

Counsel:

John Norris and Meara Conway, for the applicant;

Nancy Dennison, for the respondents.

This judicial review application was heard on January 30, 2015, before Watt, Pepall and Huscroft, JJ.A., of the Ontario Court of Appeal. In reasons written by Watt, J.A., the Court delivered the following judgment, released on October 2, 2015.