Gavrila v. Canada (Minister of Justice), (2010) 408 N.R. 273 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 13, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 408 N.R. 273 (SCC);2010 SCC 57

Gavrila v. Can. (2010), 408 N.R. 273 (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: [2010] N.R. TBEd. NO.048

Tiberiu Gavrila (appellant) v. Minister of Justice of Canada (respondent) and Amnesty International (Canada Section), Québec Immigration Lawyers Association and Canadian Civil Liberties Association (intervenors)

(33313; 2010 SCC 57; 2010 CSC 57)

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

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

November 25, 2010.

Summary:

The appellant was granted refugee protection in Canada on the basis that he had been persecuted in Romania because of his ethnic origin and his activities in a Roma advocacy association. The Romanian authorities later requested that he be extradited to serve a prison sentence on a conviction for forging visas (i.e., two visas for US$1,800), which occurred before he left Romania. The appellant was never able to acquire permanent resident status, because he was inadmissible to Canada on grounds of serious criminality. Between his arrival in Canada and the time he was taken into custody pursuant to an order made under the Extradition Act, the appellant was convicted of several indictable offences. The Minister of Citizenship and Immigration Canada applied to the Immigration and Refugee Board (IRB), seeking to vacate a decision to allow the appellant's claim for refugee protection, but the IRB refused the request. Ultimately, the Minister of Justice ordered that the appellant be extradited to Romania to serve his prison sentence. The appellant applied for judicial review of the surrender order.

The Quebec Court of Appeal, in a decision reported [2009] J.Q. No. 6686; 2009 QCCA 1228, dismissed the application. The appellant appealed.

The Supreme Court of Canada stated that this case raised questions about the interplay between extradition and refugee protection. The court, applying the principles developed in the companion case of Németh v. Canada (Minister of Justice) (2010), 408 N.R. 198; 2010 SCC 56, released concurrently, allowed the appeal and remitted the matter to the Minister of Justice for reconsideration of his decision to surrender the appellant for extradition.

Extradition - Topic 3366

Surrender to demanding country - Considerations - Refugee status - The appellant was granted refugee protection in Canada because of persecution in Romania relating to his ethnic origin - The Romanian authorities later requested that he be extradited to serve a prison sentence respecting a conviction for forging visas, which occurred before he left Romania - The appellant was never able to acquire permanent resident status, because he was inadmissible to Canada on grounds of serious criminality - After coming to Canada, the appellant was convicted of several indictable offences - Authorities were unsuccessful in having the decision allowing his claim for refugee protection vacated - Ultimately, the Minister of Justice ordered that the appellant be extradited to Romania (Extradition Act) to serve his prison sentence - The appellant sought relief, fearing mistreatment if returned to Romania - The Supreme Court of Canada, applying the principles developed in the companion case of Németh v. Canada (Minister of Justice), set aside the Minister's decision - Here, the Minister applied the wrong legal principles - He failed to consider s. 44(1)(b) of the Extradition Act, the most relevant provision in this case - Further, the appellant should not have been required to prove that persecution would in fact occur and that it would either shock the conscience or be fundamentally unacceptable to Canadians, and should not have had his case evaluated only on the basis of s. 44(1)(a) considerations.

Cases Noticed:

Németh v. Canada (Minister of Justice) (2010), 408 N.R. 198; 2010 SCC 56, appld. [para. 1].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 9].

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

Immigration and Refugee Protection Act, S.C. 2001, c. 27, generally [para. 9].

United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969, No. 6, art. 1F(b) [para. 12].

Counsel:

Stéphane Handfield and Dimitrios Strapatsas, for the appellant;

Ginette Gobeil and Janet Henchey, for the respondent;

Johanne Doyon, Elaine Doyon and Dan Bohbot, for the intervenor, Québec Immigration Lawyers Association;

Lorne Waldman and Jacqueline Swaisland, for the intervenor, Amnesty International (Canada Section);

Sukanya Pillay, for the intervenor, Canadian Civil Liberties Association.

Solicitors of Record:

Lapointe & Associés, Montréal, Quebec, for the appellant;

Attorney General of Canada, Montréal, Quebec, for the respondent;

Doyon et Associés, Montréal, Quebec, for the intervenor, Québec Immigration Lawyers Association;

Waldman & Associates, Toronto, Ontario, for the intervenor, Amnesty International (Canada Section);

Canadian Civil Liberties Association, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association.

This appeal was heard on January 13, 2010, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. Cromwell, J., delivered the following reasons, in both official languages, for the court, on November 25, 2010.