Ganis v. Canada (Minister of Justice), (2006) 233 B.C.A.C. 243 (CA)

• Judge: Finch, C.J.B.C., Hall and Saunders, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 12, 2006
• Jurisdiction: British Columbia
• Citations: (2006), 233 B.C.A.C. 243 (CA);2006 BCCA 543

Ganis v. Can. (2006), 233 B.C.A.C. 243 (CA);

    386 W.A.C. 243

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. DE.028

Georgios Ganis (appellant) v. Canada (Minister of Justice) (respondent)

(CA33534; 2006 BCCA 543)

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

British Columbia Court of Appeal

Finch, C.J.B.C., Hall and Saunders, JJ.A.

December 7, 2006.

Summary:

On November 20, 1992, Ganis was convicted in the Czech Republic (then Czechoslovakia) of four counts of procuring women to Germany and Greece for the purpose of prostitution. He was sentenced to four years' imprisonment. On January 19, 1993, he began serving his sentence. On November 6, 1993, Ganis received a temporary leave of absence from the prison for good behaviour. Contrary to the terms of that release, he did not return to the prison on November 12, 1993, or ever. Ganis eventually came to Canada. A Czech court convicted him in absentia of being unlawfully at large and sentenced him to six months' imprisonment. The Czech Republic requested Ganis's extradition for enforcement of the sentence remaining on the procurement charge and the six month sentence imposed in his absence. The Minister of Justice authorized the Attorney General to seek an order for Ganis's committal into custody to await surrender to the Czech Republic. The Authority to Proceed named the analogous Canadian offences as procuring and being unlawfully at large (Criminal Code, ss. 212 and 145(b)).

The British Columbia Supreme Court, in a decision reported at [2004] B.C.T.C. 688, allowed the application. Ganis appealed from the committal order and sought judicial review of the Minister's surrender order.

The British Columbia Court of Appeal, in a decision reported at 233 B.C.A.C. 223; 386 W.A.C. 223, dismissed the appeal from the committal order.

The British Columbia Court of Appeal dismissed the judicial review application and affirmed the Minister's surrender order.

Extradition - Topic 1023

Who may be extradited - Particular persons - Persons facing outstanding sentences - The Czech Republic requested Ganis's extradition for enforcement of a sentence remanet on a procurement charge and a six month sentence imposed in his absence for being unlawfully at large - The Minister of Justice granted a surrender order - Ganis sought judicial review - He submitted, inter alia, that the Minister erred in finding that there was sufficient evidence respecting the length of sentence that remained to be served - The British Columbia Court of Appeal dismissed the application - The Minister did not err in relying on the Czech authorities' advice that there were 812 days left to be served of the four year sentence for procuring and the entire six month sentence for being unlawfully at large - See paragraphs 39 and 41.

Extradition - Topic 1023

Who may be extradited - Particular persons - Persons facing outstanding sentences - The Czech Republic requested Ganis's extradition for enforcement of a sentence remanet on a procurement charge and a six month sentence imposed in his absence for being unlawfully at large - The Minister of Justice granted a surrender order - Ganis sought judicial review - He submitted, inter alia, that the requesting state had provided no evidence that he was at large before the expiry of the sentence, and so challenged his surrender to serve the sentence imposed for the corresponding conviction - The British Columbia Court of Appeal held that the sufficiency of evidence supporting the charge was an issue for the committal judge, pursuant to s. 29 of the Extradition Act - The proper route by which to challenge the judge's findings of fact was to bring an appeal in the provincial appellate court - See paragraph 40.

Extradition - Topic 1410

Jurisdiction - Courts - To determine whether treaty in force - The Czech Republic requested Ganis's extradition for enforcement of a sentence remanet on a procurement charge and a six month sentence imposed in his absence for being unlawfully at large - The Minister of Justice granted a surrender order - Ganis sought judicial review - He submitted, inter alia, that the Minister erred in finding that there was a valid treaty in force between Canada and the requesting state - The British Columbia Court of Appeal held that it lacked jurisdiction to determine the validity of the treaty - The question of a treaty's validity was purely political, and there was no legal component in these circumstances that would warrant the court's interference - See paragraphs 17 to 26.

Extradition - Topic 1410

Jurisdiction - Courts - To determine whether treaty in force - The British Columbia Court of Appeal stated that "If a treaty's existence is called into question by one of the contracting parties, that dispute might be for resolution at the political level, or failing that, in some other forum. The existence of a treaty, however, cannot be for adjudication in a domestic court, in a dispute between an individual and one of the contracting states. Such a process might have untold political and diplomatic consequences, well beyond the issue of whether one individual should be extradited. A ruling on a treaty's existence or validity could not properly be made in the absence of both parties to it." - See paragraph 25.

Extradition - Topic 3342

Surrender to demanding country - Conditions precedent - That surrender not be unjust or oppressive - The Czech Republic requested Ganis's extradition for enforcement of a sentence remanet on a procurement charge and a six month sentence imposed in his absence for being unlawfully at large - The Minister of Justice granted a surrender order - Ganis sought judicial review - He submitted, inter alia, that his lack of Canadian citizenship made him ineligible for transfer to a Canadian prison, his lack of Czech citizenship made him ineligible for parole, and these were factors to consider in the unjustness or oppressiveness of his extradition - The British Columbia Court of Appeal stated that "The status of one's citizenship, or absence of same, may be relevant to a decision under s. 44(1)(a). However, citizenship must be viewed in the context of all the other relevant circumstances. Here, the appellant has been convicted of very serious offences. He committed those offences in a country where he is not a citizen, and has sought refuge in another country where he is not a citizen. In my opinion, he must expect to be answerable where he committed the offences to that country's legal, judicial and correctional systems, including any disadvantages they might impose on non-citizens." - See paragraph 37.

Extradition - Topic 3342

Surrender to demanding country - Conditions precedent - That surrender not be unjust or oppressive - The Czech Republic requested Ganis's extradition for enforcement of a sentence remanet on a procurement charge and a six month sentence imposed in his absence for being unlawfully at large - The Minister of Justice granted the surrender order - Ganis sought judicial review, submitting, inter alia, that his surrender would be unjust and oppressive because, inter alia, it would cause undue emotional and financial hardship to his three year old son and wife, the latter said to suffer from mental illness, high blood pressure and diabetes; and it would aggravate her health problems to the point that their son would likely become a ward of the province because of her inability to care for him - The British Columbia Court of Appeal dismissed the application - The court considered, inter alia, that Ganis's wife and son would have the continued benefit of the provincial health and social welfare system in his absence; the procurement offences were very serious, and the sentence remanet for them was substantial, compared to the time served; and none of the sentence for being unlawfully at large had been served - See paragraphs 27 to 38.

Extradition - Topic 3344

Surrender to demanding country - Conditions precedent - Imposition of conditions - The Czech Republic requested Ganis's extradition for enforcement of a sentence remanet on a procurement charge and a six month sentence imposed in his absence for being unlawfully at large - The Minister of Justice granted the surrender order - Satanove, J., granted a committal order - Ganis sought judicial review, submitting, inter alia, that the Minister erred in surrendering him without an assurance that he would only serve the remainder of his four year sentence for trade in women, and be entitled to a new trial on the allegation of obstructing the execution of a judgment - The British Columbia Court of Appeal held that an assurance seeking a new trial would amount to an interference with the requesting state's judicial system - Moreover, given the committal judge's finding that there was evidence to support the underlying charge sufficient to justify surrender for the enforcement of the corresponding sentence, there was no basis on which to conclude that a new trial was necessary to satisfy the principles of fundamental justice - See paragraph 46.

Extradition - Topic 3344

Surrender to demanding country - Conditions precedent - Imposition of conditions - The Czech Republic requested Ganis's extradition for enforcement of a sentence remanet on a procurement charge and a six month sentence imposed in his absence for being unlawfully at large - The Minister of Justice granted the surrender order - Ganis sought judicial review, submitting, inter alia, that the Minister erred in surrendering him without assurances relating to his medical care - The British Columbia Court of Appeal dismissed the application - In deciding that such assurances were unnecessary, the Minister relied on information provided by the Czech Republic as to the care that would be available to Ganis during his incarceration - The Minister also stated in his reasons that his officials would advise the Czech authorities of Ganis's medical condition at the time of his surrender - Having received advice from the requesting state, the Minister was entitled to rely on it, and to order surrender without assurances - See paragraphs 47 to 49.

Extradition - Topic 3944

Practice - Judicial review - Jurisdiction - [See second Extradition - Topic 1023 ].

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender (incl. standard of review) - The British Columbia Court of Appeal stated that "A decision to surrender is an executive order and will generally attract a high degree of deference. Reviewing courts must assess the Minister's findings of fact on a standard of patent unreasonableness, and they will be reluctant to interfere with the decision itself unless it is patently unreasonable or there is evidence of improper conduct, arbitrary motives or bad faith on the part of the Minister. On the other hand, where the issue is a question of law, including the Charter argument raised in this case, the standard of review is one of correctness ..." - See paragraph 12.

Cases Noticed:

United States of America v. Kwok, [2001] 1 S.C.R. 532; 267 N.R. 310; 145 O.A.C. 36; 2001 SCC 18, refd to. [para. 12].

United States of America v. Gillingham (2004), 201 B.C.A.C. 26; 328 W.A.C. 26; 184 C.C.C.(3d) 97; 2004 BCCA 226, refd to. [para. 12].

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, refd to. [para. 17].

Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 21].

Reference Re Canada Assistance Plan (B.C.) - see Reference Re Constitutional Question Act (B.C.).

Black v. Chrétien et al. (2001), 147 O.A.C. 141; 54 O.R.(3d) 215 (C.A.), refd to. [para. 23].

Black v. Canada (Prime Minister) - see Black v. Chrétien et al.

Council of Civil Service Unions et al., Re, [1985] 1 A.C. 374; 62 N.R. 336; [1984] 3 All E.R. 935 (H.L.), refd to. [para. 23].

Council of Civil Service Unions v. Minister for the Civil Service - see Council of Civil Service Unions et al., Re.

Institut National des Appellations d'Origine des Vins et Eaux-de-Vie v. Chateau-Gai Wines Ltd., [1975] 1 S.C.R. 190; 2 N.R. 1, refd to. [para. 24].

United States of America v. Reumayr (2003), 184 B.C.A.C. 251; 302 W.A.C. 251; 176 C.C.C.(3d) 377 (C.A.), refd to. [para. 27].

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; 195 D.L.R.(4th) 1, refd to. [para. 30].

United States of America v. Taylor (2005), 216 B.C.A.C. 137; 356 W.A.C. 137; 200 C.C.C.(3d) 388 (C.A.), refd to. [para. 31].

Kunze v. Canada (Minister of Justice) (2005), 209 B.C.A.C. 32; 345 W.A.C. 32; 194 C.C.C.(3d) 422 (C.A.), refd to. [para. 31].

United States of America v. Kunze - see Kunze v. Canada (Minister of Justice).

Hong Kong v. Cheng, [1996] O.J. No. 5581 (Sup. Ct.), dist. [para. 31].

Canada (Minister of Justice) v. Thomson, [2005] O.A.C. Uned. 116 (C.A.), refd to. [para. 32].

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; 144 N.R. 327; 59 O.A.C. 241, refd to. [para. 40].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 44].

United States of America v. Reumayr (2005), 214 B.C.A.C. 261; 353 W.A.C. 261; 199 C.C.C.(3d) 1 (C.A.), refd to. [para. 45].

Canada (Minister of Justice) v. Reumayr - see United States of America v. Reumayr.

Gervasoni v. Canada (Minister of Justice) (1996), 72 B.C.A.C. 141; 119 W.A.C. 141 (C.A.), leave to appeal refused (1996), 204 N.R. 398; 84 B.C.A.C. 240; 137 W.A.C. 240 (S.C.C.), refd to. [para. 49].

Statutes Noticed:

Extradition Act, S.C. 1999, c. 18, sect. 44(1)(a) [para. 11].

Counsel:

I. Donaldson, Q.C., for the appellant;

D.J. Strachan and M. Williams, for the respondent.

This application was heard at Vancouver, B.C., on October 12, 2006, by Finch, C.J.B.C., Hall and Saunders, JJ.A., of the British Columbia Court of Appeal. Finch, C.J.B.C., delivered the following decision for the court on December 7, 2006.