Froom v. Canada (Minister of Justice), (2003) 242 F.T.R. 1 (FC)

• Judge: Layden-Stevenson, J.
• Court: Federal Court (Canada)
• Case Date: September 02, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 242 F.T.R. 1 (FC);2003 FC 1299

Froom v. Can. (2003), 242 F.T.R. 1 (FC)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. NO.038

Arthur Froom (applicant) v. The Minister of Justice (respondent)

(T-2024-01; 2003 FC 1299)

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

Federal Court

Layden-Stevenson, J.

November 7, 2003.

Summary:

The United States requested Froom's extradition to stand trial on fraud offences. Froom applied for judicial review with respect to an authority to proceed issued by the Minister of Justice under s. 15(1) of the Extradition Act. The Minister moved to strike out the notice of application.

A Prothonotary of the Federal Court of Canada, Trial Division, in a decision reported at 218 F.T.R. 230, granted the motion and struck out Froom's application. Froom appealed.

The Federal Court of Canada, Trial Division, in a decision reported at 225 F.T.R. 173, allowed the appeal and dismissed the Minister's motion to strike. The court held that the Minister's argument that the court should not exercise jurisdiction to judicially review the authority to proceed because there was an adequate alternative remedy, was more appropriately dealt with at the hearing of the judicial review application than on a motion to strike the application.

The Federal Court subsequently held that it had jurisdiction to review a decision of the Minister to issue an authority to proceed under s. 15 of the Extradition Act at the outset of the extradition process, in circumstances where strong grounds existed for arguing that the Minister acted arbitrarily, in bad faith, or that the Minister was motivated by an improper motive or irrelevant considerations. However, the court stated that judicial review in the Federal Court would not be available where the underlying grounds of review disclosed arguments that fell squarely within the jurisdiction of the extradition judge, or the Minister, or where the grounds dealt with arguments in areas where the law was settled. The court considered the grounds raised by Froom on the application for judicial review and dismissed the application.

Administrative Law - Topic 3220

Judicial review - General - Interim applications or rulings - Froom applied for judicial review with respect to an authority to proceed (ATP) issued by the Minister of Justice under s. 15(1) of the Extradition Act - The Minister argued that the judicial review should not be entertained because the Minister's decision to issue the ATP was an interlocutory one - The Federal Court held that it did not need to determine, for the purposes of the application, whether the decision was final or interlocutory - Decisions of the Federal Court of Appeal had left the door open for the court to proceed with judicial review of interlocutory decisions where there were special circumstances - There were special circumstances in this case - See paragraphs 65 to 68.

Administrative Law - Topic 3302

Judicial review - General - Bars - Alternate remedy - Froom applied for judicial review with respect to an authority to proceed (ATP) issued by the Minister of Justice under s. 15(1) of the Extradition Act - The Minister argued that the grounds raised could be argued and determined within the provisions of the Act and therefore an adequate alternative remedy existed and the court should decline to exercise its discretion to hear the judicial review application - The Federal Court stated that "Requiring the individual to proceed with a committal hearing, and if committed, to appeal the committal order, and if unsuccessful, to make submissions to the Minister, and if unsuccessful, then (but only then), to address the impropriety of the ATP where there may possibly, but not necessarily, be a remedy in judicial review proceedings before the provincial appellate court, does not provide an adequate or appropriate alternative remedy or forum. It is unfair and fundamentally unjust to insist that an individual undergo, and perhaps complete, each stage of the process in order to challenge the Minister's decision, on the basis of the grounds I have enumerated, when a remedy may ultimately be beyond reach within that process. If a remedy is ultimately found to be within reach, the process, while providing an alternative remedy, does not, in my view, provide an adequate one" - See paragraph 59.

Courts - Topic 4057

Federal Court of Canada - Jurisdiction - Trial Division - Judicial review of interlocutory decisions - [See Administrative Law - Topic 3220 ].

Criminal Law - Topic 2649

Attempts, conspiracies, accessories and parties - Conspiracies - Involving husband and wife - The United States requested Froom's extradition to stand trial on fraud offences - The acts for which extradition was sought were allegedly committed by Froom in relation to a business that he ran with his wife - The Minister of Justice issued an authority to proceed (ATP) under s. 15(1) of Extradition Act - The ATP listed the following Canadian offences as corresponding to the conduct alleged against Froom in the United States: conspiracy to commit fraud, fraud, conspiracy to launder proceeds of crime and laundering the proceeds of crime - Froom applied to quash the ATP - He argued that the reference to conspiracy did not disclose an offence known to law because he was alleged to have conspired with his wife and a husband and wife could not conspire with each other (R. v. Kowbel (S.C.C.)) - The Federal Court rejected the argument - Kowbel stood for the proposition that a husband and wife could not be found guilty of conspiring with each other alone to commit an indictable offence - The Grand Jury indictment indicated conspiracy with respect to Froom and his wife and others known and unknown to the Grand Jury - See paragraphs 93 and 103.

Crown - Topic 703

Authority of Ministers - Delegation of - Delegable matters - Froom applied for judicial review with respect to an authority to proceed (ATP) issued by the Minister of Justice under s. 15(1) of Extradition Act - The ATP was signed by counsel for the International Assistance Group for the Minister of Justice - Froom argued that the Minister acted arbitrarily and erred in law by wrongfully delegating his authority to issue the ATP - The Federal Court held that considering the contents of s. 15, the Act as a whole, the jurisprudence, and the provisions of the Interpretation Act, it was open to the Minister to delegate the discretionary authority provided to him in s. 15 of the Act - There was nothing in the Act that indicated a contrary intention - See paragraphs 129 to 145.

Crown - Topic 705

Authority of Ministers - Delegation of - Form of - Froom applied for judicial review with respect to an authority to proceed (ATP) issued by the Minister of Justice under s. 15(1) of Extradition Act - A document signed by the Deputy Minister of Justice specified that the senior counsel for the International Assistance Group (who signed the ATP) was authorized to issue an ATP - The document was dated June, 1999 - Although there was a space provided for the insertion of the specific day of the month, the space was blank - Froom argued that the absence of the date rendered the document a nullity - The Federal Court held that nothing turned on the specific date in June 1999 when the document was signed - The ATP was issued more than two years later - The absence of a specific date was therefore not material - See paragraphs 125 to 128.

Extradition - Topic 20

Bars to extradition - Limitation period - The United States requested Froom's extradition - Froom applied for judicial review with respect to an authority to proceed issued by the Minister of Justice under s. 15(1) of Extradition Act - Article 4(1)(ii) of the extradition treaty between Canada and the United States dictated that extradition was not to be granted when the prosecution for the offence had become barred by lapse of time according to the laws of the requesting state - Froom argued that the U.S. Speedy Trial Act prescribed a limitation period and that no regard was had to it - The Federal Court rejected the argument - The certified Statement of Law of the Assistant United States Attorney General stated that the charges were laid within the limitation period applicable to each charge - The Minister was entitled to rely on the material supplied with the requisition as proof of foreign law - If Froom proceeded to an extradition hearing and was committed, he could raise the issue of the Speedy Trial Act with the Minister pursuant to s. 43(1) of the Act - If he was ultimately surrendered, he could address the matter before the United States trial judge - See paragraphs 82 and 87 to 88.

Extradition - Topic 22

Bars to extradition - Abuse of process - Froom applied for judicial review with respect to an authority to proceed (ATP) issued by the Minister of Justice under s. 15(1) of Extradition Act - Froom argued that it was an abuse of process for United States authorities to wait nearly three and a half years from the date of the Grand Jury Indictment to make a request for extradition - He also argued that the delay was aggravated by a conscious and tactical decision to use deportation proceedings in order to circumvent extradition - Froom submitted that the deportation effort was a de facto attempt at extradition and that this matter, being the second attempt by the Minister, was an abuse of process - The Federal Court held that there was no evidence that the Minister was not acting in utmost good faith in issuing the ATP - The ground therefore did not meet the threshold for judicial review of a decision to issue an ATP - Further, allegations of delay and abuse of process were to be made to the Minister pursuant to s. 44(1) of the Act - Where an allegation of abuse of process went to the fairness of the hearing itself, the extradition judge had jurisdiction to deal with it - Therefore, this ground fell squarely within the jurisdiction of the Minister or the extradition judge - Finally, if judicial review had been available, the court would not have found that the Minister's decision to issue the ATP was patently unreasonable - See paragraphs 107 to 124.

Extradition - Topic 25

Bars to extradition - Treaty noncompliance - The United States requested Froom's extradition - Froom applied for judicial review with respect to an authority to proceed (ATP) issued by the Minister of Justice under s. 15(1) of Extradition Act - Froom argued that the warrant of arrest issued by the United States judge did not refer to conspiracy and therefore, the ATP, to the extent that it purported to deal with conspiracy, should be quashed for failure to comply with Article 9(3) of the extradition treaty between Canada and the United States - The Federal Court held that the argument was without foundation because Article 9(3) did not require that all offences listed in the indictment be listed in the warrant - See paragraphs 83 and 89.

Extradition - Topic 25

Bars to extradition - Treaty noncompliance - [See Extradition - Topic 20 and Extradition - Topic 3804 ].

Extradition - Topic 2914

Provisional arrest and detention - Warrant of committal - General - Authority to proceed - Froom applied for judicial review with respect to an authority to proceed (ATP) issued by the Minister of Justice under s. 15(1) of Extradition Act - Froom argued that the ATP was a nullity because it lacked sufficient particularity to enable him to know the case he had to meet - Froom noted an analogy between the ATP and the information or indictment in a criminal proceeding - He submitted that by virtue of s. 601(11) of the Criminal Code, a preliminary inquiry judge had jurisdiction to hear a motion to quash an information and that s. 24(2) of the Act vested the extradition judge with the powers of a justice under Part XVIII Criminal Code - The Federal Court held that Froom's position with respect to the requirements of an ATP were misguided - The ATP was not a charging document and Froom was not charged with any offence in Canada - Section 601 was found in Part XX of the Code rather than Part XVIII - Froom's submissions failed to distinguish between the statutory requirements regarding an information or indictment and those with respect to an ATP - The former were located in the Criminal Code and the latter in the Extradition Act - See paragraphs 91 to 97.

Extradition - Topic 2914

Provisional arrest and detention - Warrant of committal - General - Authority to proceed - [See Crown - Topic 703 , first Extradition - Topic 3941 and both Extradition - Topic 3944 ].

Extradition - Topic 3804

Practice - General - Extradition request - The United States requested Froom's extradition - Froom applied for judicial review with respect to an authority to proceed issued by the Minister of Justice under s. 15(1) of Extradition Act - Article 9(1) of the extradition treaty between Canada and the United States stated that the request for extradition was to be made through the diplomatic channel - Froom alleged that a document described as Diplomatic Note No. 456 was sent from the United States Embassy in Ottawa to the offices of the International Assistance Group of the Department of Justice in Ottawa - He argued that the Diplomatic Note should have travelled from the American Embassy to the Department of Foreign Affairs and then to the Department of Justice - The Federal Court stated that it was not for the courts to dictate where signatories to international treaties should direct their documentation - Diplomatic Note No. 456 complied with Article 9 - There was nothing in the Act or the treaty that precluded receipt of the documents by the International Assistance Group of the Department of Justice - See paragraphs 81 and 86.

Extradition - Topic 3941

Practice - Judicial review - General - Froom applied for judicial review with respect to an authority to proceed issued by the Minister of Justice under s. 15(1) of the Extradition Act - The Federal Court held that, balancing the factors of the pragmatic and functional analysis, the applicable standard of review was patent unreasonableness - See paragraphs 74 to 79.

Extradition - Topic 3941

Practice - Judicial review - General - Froom applied for judicial review with respect to an authority to proceed (ATP) issued by the Minister of Justice under s. 15(1) of Extradition Act - The ATP was signed by counsel for the International Assistance Group for the Minister of Justice - Froom argued that the Minister acted arbitrarily and erred in law by wrongfully delegating his authority to issue the ATP - The Federal Court held that the standard of review applicable with respect to the Minister's decision to delegate was one of correctness - See paragraphs 136 to 138.

Extradition - Topic 3944

Practice - Judicial review - Jurisdiction - The Federal Court held that it had jurisdiction to review a decision of the Minister of Justice to issue an authority to proceed under s. 15 of the Extradition Act, at the outset of the extradition process, in circumstances where strong grounds existed for arguing that the Minister acted arbitrarily, in bad faith, or that the Minister was motivated by an improper motive or irrelevant considerations - However, the court stated that the mere characterization of an application for judicial review as one to quash an authority to proceed was not sufficient - Judicial review in the Federal Court would not be available where the underlying grounds of review disclosed arguments that fell squarely within the jurisdiction of the extradition judge, or the Minister, or where the grounds dealt with arguments in areas where the law was settled - See paragraphs 54 to 60.

Extradition - Topic 3944

Practice - Judicial review - Jurisdiction - The United States requested Froom's extradition - Froom applied for judicial review with respect to an authority to proceed (ATP) issued by the Minister of Justice under s. 15(1) of the Extradition Act - Froom alleged that there was non-compliance with the extradition treaty between Canada and the United States in three respects - The Federal Court held that none of the arguments raised by Froom met the threshold for judicial review of a decision to issue an ATP - There was no allegation that the Minister acted arbitrarily, in bad faith, that he was motivated by an improper motive, or that he was motivated by irrelevant considerations in relation to any of Froom's submissions - Moreover, there was no evidentiary basis upon which such allegations could be sustained - See paragraph 84.

Cases Noticed:

Froom v. Canada (Minister of Justice) (2002), 218 F.T.R. 230 (T.D. Protho.), refd to. [para. 8].

Froom v. Canada (Minister of Justice) (2002), 225 F.T.R. 173 (T.D.), refd to. [para. 8].

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161; 58 C.R.(3d) 1; 28 C.R.R. 280; 39 D.L.R.(4th) 18; 33 C.C.C.(3d) 193, refd to. [para. 19].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81; 67 C.C.C.(3d) 1, refd to. [para. 19].

United States of America v. Kwok, [2001] 1 S.C.R. 532; 267 N.R. 310; 145 O.A.C. 36; 152 C.C.C.(3d) 225 (S.C.C.), refd to. [para. 20].

United States of America v. Sheppard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 22].

Argentina (Republic) v. Mellino, [1987] 1 S.C.R. 536; 76 N.R. 51; 80 A.R. 1; 33 C.C.C.(3d) 334, refd to. [para. 22].

United States of America v. McVey, [1992] 3 S.C.R. 475; 144 N.R. 81; 16 B.C.A.C. 241; 28 W.A.C. 241; 77 C.C.C.(3d) 1, refd to. [para. 22].

United States of America v. Lépine, [1994] 1 S.C.R. 286; 163 N.R. 1; 69 O.A.C. 241, refd to. [para. 22].

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; 144 N.R. 327; 59 O.A.C. 241; 77 C.C.C.(3d) 65; 97 D.L.R.(4th) 577; 9 Admin. L.R.(2d) 1; 17 C.R.(4th) 161; 12 C.R.R.(2d) 77, refd to. [para. 24].

United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469; 96 N.R. 321; 23 Q.A.C. 182; 48 C.C.C.(3d) 193, refd to. [para. 25].

United States of America et al. v. Yang (2001), 149 O.A.C. 364; 56 O.R.(3d) 52 (C.A.), refd to. [para. 32].

Germany (Federal Republic) v. Schreiber, [2000] O.J. No. 2618 (Sup. Ct.), refd to. [para. 36].

Reza v. Minister of Employment and Immigration, [1994] 2 S.C.R. 394; 167 N.R. 282; 72 O.A.C. 348, refd to. [para. 39].

Fast v. Canada (Minister of Citizenship and Immigration) (2001), 288 N.R. 8 (F.C.A.), refd to. [para. 39].

United States of America v. Kucan (2001), 151 O.A.C. 131 (C.A.), refd to. [para. 42].

United States of America v. Drysdale et al., [2000] O.T.C. 72; 32 C.R.(5th) 163 (Sup. Ct.), refd to. [para. 51].

Rizzo and Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193; 36 O.R.(3d) 418n; 50 C.B.R.(3d) 163; 33 C.C.E.L.(2d) 173; 98 C.L.L.C. 210-006, refd to. [para. 52].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325; 122 D.L.R.(4th) 129, refd to. [para. 52].

Rees v. Secretary of State, [1986] 2 All E.R. 321 (H.L.), refd to. [para. 55].

United States of America v. Sagarra (2003), 226 Nfld. & P.E.I.R. 321; 673 A.P.R. 321 (Nfld. & Lab. C.A.), refd to. [para. 57].

Thailand (Kingdom) v. Karas, [2001] B.C.T.C. 72; 2001 BCSC 72, refd to. [para. 58].

United States of America v. Shulman, [2001] 1 S.C.R. 616; 268 N.R. 115; 145 O.A.C. 201, refd to. [para. 58].

Zündel v. Citron et al., [2000] 4 F.C. 255; 256 N.R. 125 (F.C.A.), refd to. [para. 62].

Szczecka v. Ministre de l'Emploi et de l'Immigration (1993), 170 N.R. 58; 116 D.L.R.(4th) 333 (F.C.A.), refd to. [para. 63].

Canada (Secretary of State) v. Luitjens (1992), 142 N.R. 173 (F.C.A.), refd to. [para. 63

Reebok Canada et al. v. Minister of National Revenue (Customs and Excise) (1995), 179 N.R. 300 (F.C.A.), refd to. [para. 64].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 74].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 74].

Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; 280 N.R. 268, refd to. [para. 74].

Dr. Q., Re (2003), 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 74].

R. v. Brodie, [1936] S.C.R. 188, refd to. [para. 92].

R. v. Kowbel, [1954] S.C.R. 498, refd to. [para. 93].

United States of America v. Reumayr (2003), 184 B.C.A.C. 251; 302 W.A.C. 251; 2003 BCCA 375, refd to. [para. 102].

Froom v. Canada (Minister of Citizenship and Immigration) (2003), 240 F.T.R. 22; 2003 FC 1127, refd to. [para. 112].

Bonamie, Re (2001), 293 A.R. 201; 257 W.A.C. 201; 96 Alta. L.R.(3d) 252 (C.A.), refd to. [para. 118].

United States of America v. Earles (2003), 176 B.C.A.C. 231; 290 W.A.C. 231; 171 C.C.C.(3d) 116 (C.A.), refd to. [para. 118].

United States of America v. Gillingham (2000), 144 B.C.A.C. 165; 236 W.A.C. 165 (C.A.), refd to. [para. 119].

United States of America et al. v. Johnson (2002), 166 O.A.C. 345; 62 O.R.(3d) 327 (C.A.), refd to. [para. 120].

United States of America v. Cobb et al., [2001] 1 S.C.R. 587; 267 N.R. 203; 145 O.A.C. 3, refd to. [para. 121].

R. v. Harrison, [1977] 1 S.C.R. 238; 8 N.R. 47, refd to. [para. 130].

Ramawad v. Minister of Manpower and Immigration, [1978] 2 S.C.R. 375; 18 N.R. 69; 81 D.L.R.(3d) 687, refd to. [para. 130].

Edgar v. Canada (Attorney General) (1999), 127 O.A.C. 202; 46 O.R.(3d) 294 (C.A.), refd to. [para. 130].

Québec v. Carrières Ste-Thérèse Ltée, [1985] 1 S.C.R. 831; 59 N.R. 391, refd to. [para. 130].

Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12; 206 N.R. 363; 142 D.L.R.(4th) 193, refd to. [para. 140].

Canada (Minister of Human Resources Development) v. Wiemer (1998), 228 N.R. 341 (F.C.A.), refd to. [para. 142].

Statutes Noticed:

Extradition Act, S.C. 1999, c. 18, sect. 15 [para. 17].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 24(2) [para. 141].

Authors and Works Noticed:

La Forest, Anne Warner, Extradition to and from Canada (3rd Ed. 1991), generally [para. 19].

Counsel:

Lorne Waldman, David B. Cousins and Gary Lafontaine, for the applicant;

Dale Yurka and Joseph Cheng, for the respondent.

Solicitors of Record:

Waldman and Associates, Toronto, Ontario, David B. Cousins, Toronto, Ontario, and Gregory Lafontaine, Toronto, Ontario, for the applicant;

Department of Justice, Toronto, Ontario, for the respondent.

This application was heard on August 12 and 13 and September 2, 2003, at Toronto, Ontario, before Layden-Stevenson, J., of the Federal Court, who delivered the following decision on November 7, 2003.