Gervasoni v. Canada (Minister of Justice), (1996) 72 B.C.A.C. 141 (CA)

• Judge: Cumming, Hollinrake and Ryan, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 06, 1995
• Jurisdiction: British Columbia
• Citations: (1996), 72 B.C.A.C. 141 (CA)

Gervasoni v. Can. (1996), 72 B.C.A.C. 141 (CA);

    119 W.A.C. 141

MLB headnote and full text

Gerald Gervasoni (appellant) v. Canada (Minister of Justice) respondent

(VI02641)

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

British Columbia Court of Appeal

Cumming, Hollinrake and Ryan, JJ.A.

March 11, 1996.

Summary:

The Minister of Justice ordered that Gerv­asoni be surrendered to the United States for trial in Florida on a charge of first degree murder. Gervasoni applied under s. 25.2(1) of the Extradition Act and s. 2 of the Judi­cial Review Procedure Act for judicial review of the order.

The British Columbia Court of Appeal dismissed the application.

Extradition - Topic 3343

Surrender to demanding country - Condi­tions precedent - Assurance that death penalty will not be imposed - The Minis­ter of Justice issued an unconditional warrant of surrender to the United States respecting a first degree murder charge without first obtaining formal assurances from the U.S. that they would not seek the death penalty - The decision was based on advice from the U.S. government that the state would not seek the death penalty and that decision was final - The British Col­umbia Court of Appeal held that the Min­ister could rely on such representations and advice provided by the requesting state as he saw fit in reaching his political, discre­tionary decision - The Minister met the requirements of art. 6 of the Canada-U.S. Extradition Treaty.

Cases Noticed:

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; 144 N.R. 327; 59 O.A.C. 1, refd to. [para. 21].

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

United States of America v. Allard and Charette, [1987] 1 S.C.R. 564; 75 N.R. 260; 8 Q.A.C. 178, refd to. [para. 24].

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. 24].

Whitley v. United States of America (1994), 75 O.A.C. 100; 94 C.C.C.(3d) 99 (C.A.), leave to appeal granted (1995), 189 N.R. 239; 88 O.A.C. 80 (S.C.C.), refd to. [para. 25].

Statutes Noticed:

Canada-United States Extradition Treaty, art. 6 [para. 17].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 18.1(4) [para. 23].

Counsel:

Gary N. Botting, for the appellant;

Kenneth J. Yule, for the respondent.

This appeal was heard in Vancouver, British Columbia, on March 6, 1995, before Cumming, Hollinrake and Ryan, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered by Cumming, J.A., on March 11, 1996.