Idziak v. Canada (Minister of Justice), (1992) 144 N.R. 327 (SCC)

• Judge: McLachlin and Iacobucci, JJ.
• Court: Supreme Court of Canada
• Case Date: Thursday November 19, 1992
• Jurisdiction: Canada (Federal)
• Citations: (1992), 144 N.R. 327 (SCC);144 NR 327;17 CR (4th) 161;9 Admin LR (2d) 1;77 CCC (3d) 65;59 OAC 241;12 CRR (2d) 77;[1992] CarswellOnt 113;36 ACWS (3d) 718;17 WCB (2d) 572;[1992] SCJ No 97 (QL);1992 CanLII 51 (SCC);97 DLR (4th) 577;[1992] ACS no 97;[1992] 3 SCR 631

Idziak v. Can. (1992), 144 N.R. 327 (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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Boniface Robert Idziak (appellant) v. The Minister of Justice, The Honourable Kim Campbell, and the Superintendent of the Sault Ste. Marie Jail, Jude Lake (respondent)

(21845)

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

Supreme Court of Canada

Lamer, C.J.C., La Forest,

L'Heureux-Dubé, Sopinka, Cory,

McLachlin and Iacobucci, JJ.

November 19, 1992.

Summary:

Idziak was ordered to be extradited to the United States and the Minister of Justice signed the warrant of surrender after advis­ing him that there were no grounds for refusing to surrender him. He subsequently learned of an internal memorandum con­sidered by the Minister before making her decision. Idziak applied to the Ontario High Court for habeas corpus to set aside the warrant of surrender on the ground that the Minister denied him fundamental justice under s. 7 of the Charter.

The Ontario High Court in a judgment reported 53 C.C.C.(3d) 385; 48 C.R.R. 165, ruled that habeas corpus lay, but dismissed the application in a judgment reported 70 O.R.(2d) 498; 63 D.L.R.(4th) 267; 53 C.C.C.(3d) 464; 48 C.R.R. 179. Idziak appealed.

The Ontario Court of Appeal dismissed the appeal in a decision reported 67 D.L.R.(4th) 639; 48 C.R.R. 187. Idziak appealed, raising the additional ground of bias.

The Supreme Court of Canada dismissed the appeal, holding that there was no institu­tional bias or reasonable apprehension of bias in the Minister's consideration of the matter and it was not unfair of the Minister to consider the memorandum without dis­closing it to Idziak.

Administrative Law - Topic 608

Hearing and decision - Disclosure by tribunal - To parties of material used or relied upon by the tribunal in making its decision - In deciding whether to issue a warrant of surrender of a person subject to an extradition order the Minister con­sidered an internal memorandum without disclosing it to the person - The memo­randum included a summary of the extra­di­tion proceedings, a summary of the per­son's representations to the Minister and a recommendation - The Supreme Court of Canada held that the Minister was not bound to disclose the memorandum to the person and did not breach the principles of fundamental justice under s. 7 of the Charter in not doing so - See paragraphs 59 to 63.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias - Apprehension of - Idziak was ordered extradited - The Minister of Justice signed the warrant of surrender after advising him that there were no grounds for refusing to surrender - He subsequently learned of an internal briefing memorandum undisclosed to him, but considered by the Minister before deciding - Idziak applied for habeas corpus on the grounds of institutional bias and reasonable apprehension of bias (where the Minister prosecuted the proceedings before the extradition judge and also issued the war­rant of surrender) and unfairness in not disclosing the memorandum - The Supreme Court of Canada affirmed the dismissal of the application, holding that there was no institutional or actual bias or reasonable apprehension thereof and no unfairness in not disclosing the memoran­dum.

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal - Bias - Apprehension of - [See Administrative Law - Topic 2088].

Extradition - Topic 4

General - Role of Minister - [See Ad­ministrative Law - Topic 2088].

Extradition - Topic 3944

Practice - Judicial review - Jurisdiction - Idziak was ordered to be extradited - The Minister of Justice signed the warrant of surrender after advising him that there were no grounds for refusing to surrender him - He subsequently learned of an internal memorandum considered by the Minister before making her decision - Idziak applied to the Ontario High Court for habeas corpus to set aside the warrant of surrender - The Minister submitted that he should have pursued his remedy in the Federal Court of Canada, Trial Division - The Supreme Court of Canada affirmed that provincial courts and the Federal Court had concurrent jurisdiction over extradition matters and that the Ontario High Court was an appropriate and com­petent forum to consider a habeas corpus application respecting the warrant of sur­render - See paragraphs 33 to 40.

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender - [See Extradition - Topic 3944].

Habeas Corpus - Topic 564

Jurisdiction to issue writ - Federal Court - Trial Division - [See Extradition - Topic 3944].

Habeas Corpus - Topic 621

Jurisdiction to issue writ - Ontario courts - General - [See Extradition - Topic 3944].

Habeas Corpus - Topic 1020

Grounds for issue of writ - Restriction of freedom - Extradition order - Idziak was ordered to be extradited - The Minister of Justice signed the warrant of surrender after advising him that there were no grounds for refusing to surrender him - He subsequently learned of an internal mem­orandum considered by the Minister before making her decision - Idziak applied to the Ontario High Court for habeas corpus to set aside the warrant of surrender - The Supreme Court of Canada held that habeas corpus was an appropriate remedy for someone subject to an outstanding warrant of detention, notwithstanding that he was not yet in custody - See paragraphs 20 to 32.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not raised on application, at trial, in pleadings or in prior proceedings - The appellant raised the issues of bias and privilege for the first time in his application for leave to the Supreme Court of Canada and in its factum - The respondent objected to the issue being raised - The Supreme Court of Canada considered the issues, where the respondent had notice of the issues in the application for leave and the factum and was given an opportunity to file additional evidence and therefore suffered no preju­dice - See paragraph 41.

Practice - Topic 9013

Appeals - Restrictions on argument on appeal - Grounds limited by order grant­ing leave to appeal - Supreme Court of Canada - [See Practice - Topic 9102].

Practice - Topic 9102

Appeals - Supreme Court of Canada - Grounds of appeal - Expansion of - Leave to appeal to the Supreme Court of Canada was granted on only one ground, but before the court the respondent raised the issue of the court's jurisdiction - The Supreme Court of Canada held that it limited its jurisdiction by limiting the grounds of appeal and the grounds should not be expanded - However, the court always had the capacity to consider its own jurisdiction and should not be placed in a position requiring it to rule on a mat­ter in which it lacked jurisdiction - The court accordingly considered the jurisdic­tional issue, but stated that the respondent should have raised the issue in response to the appellant's application for leave - See paragraphs 17 to 19.

Cases Noticed:

Isbell, Re, [1930] S.C.R. 62, consd. [paras. 10, 28].

R. v. Gamble, [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81; 45 C.C.C.(3d) 204; 66 C.R.(3d) 193, appld. [paras. 10, 25].

Argentina v. Mellino, [1987] 1 S.C.R. 536; 76 N.R. 51; 80 A.R. 1; 52 Alta. L.R.(2d) 1; [1987] 4 W.W.R. 289; 28 C.R.R. 262; 33 C.C.C.(3d) 334; 40 D.L.R.(4th) 74, refd to. [para. 15].

R. v. Perka et al., [1984] 2 S.C.R. 232; 55 N.R. 1; 14 C.C.C.(3d) 385; 13 D.L.R.(4th) 1; [1984] 6 W.W.R. 289; 42 C.R.(3d) 113, consd. [para. 17].

R. v. Wigman, [1987] 1 S.C.R. 246; 75 N.R. 51; 33 C.C.C.(3d) 97; [1987] 4 W.W.R. 1; 56 C.R.(3d) 289, consd. [para. 17].

R. v. Warner, [1961] S.C.R. 144, consd. [para. 17].

Lizotte v. R., [1951] S.C.R. 115, consd. [para. 17].

R. v. Canadian Dredge & Dock Co., [1985] 1 S.C.R. 662; 59 N.R. 241, consd. [para. 17].

R. v. Miller, [1985] 2 S.C.R. 613; 63 N.R. 321; 14 O.A.C. 33; 23 C.C.C.(3d) 97; 52 O.R.(2d) 585; 49 C.R.(3d) 1; 16 Admin. L.R. 184; 24 D.L.R.(4th) 9, appld. [paras. 23, 34].

Cardinal and Oswald v. Kent Institution, Director of, [1985] 2 S.C.R. 643; 63 N.R. 353; 23 C.C.C.(3d) 118; 24 D.L.R.(4th) 44; [1986] 1 W.W.R. 577; 16 Admin. L.R. 233, appld. [para. 23].

Morin v. National Special Handling Unit Review Committee, [1985] 2 S.C.R. 662; 63 N.R. 363; 23 C.C.C.(3d) 132; 24 D.L.R.(4th) 71; 49 C.R.(3d) 26; 16 Admin. L.R. 264, appld. [para. 23].

R. v. National Parole Board, [1986] 2 S.C.R. 459; 72 N.R. 61; 3 Q.A.C. 133; 34 D.L.R.(4th) 427; 30 C.C.C.(3d) 129; 55 C.R.(3d) 83, appld. [para. 23].

Masella v. Langlais, [1955] S.C.R. 263, consd. [para. 28].

Pringle v. Fraser, [1972] S.C.R. 821, dist. [para. 38].

Peiroo v. Minister of Employment and Immigration (1989), 34 O.A.C. 43; 69 O.R.(2d) 253 (C.A.), leave to appeal refused 104 N.R. 319; 37 O.A.C. 160 (S.C.C.), dist. [para. 38].

Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; 121 N.R. 198, dist. [para. 38].

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12, appld. [para. 43].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R. (4th) 422; 14 C.R.R. 13; 12 Admin. L.R. 137, consd. [para. 46].

Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81; 69 D.L.R.(4th) 489; [1990] 3 W.W.R. 239; 43 Admin. L.R. 157, consd. [para. 47].

Syndicat des employés de production du Québec et de l'Acadie v. Commission Canadienne des droits de la personne et al., [1989] 2 S.C.R. 879; 100 N.R. 241, consd. [para. 47].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 61 C.R.(3d) 1, consd. [para. 47].

Chiarelli v. Canada (Minister of Employ­ment and Immigration), [1992] 1 S.C.R. 711; 135 N.R. 161, consd. [para. 47].

Lippé et al. v. Québec (Procureur général) et al., [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241; 61 C.C.C.(3d) 127, appld. [para. 48].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, appld. [para. 50].

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, appld. [para. 54].

Newfoundland Telephone Co. Ltd. v. Board of Commissioners of Public Utili­ties (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, consd. [para. 56].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380; 50 C.C.C.(3d) 495; 105 D.L.R.(3th) 745; 16 C.R.(3d) 294, consd. [para. 62].

Radulesco v. Canadian Human Rights Commission, [1984] 2 S.C.R. 407; 55 N.R. 384, dist. [para. 63].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304, consd. [para. 67].

Statutes Noticed:

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

Department of Justice Act, R.S.C. 1985, c. J-2, sect. 2, sect. 4, sect. 5 [para. 7].

Extradition Act, R.S.C. 1985, c. E-23, sect. 25 [para. 7].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 2 [para. 33]; sect. 17(6) [now sect. 18(2)] [para. 35]; sect. 18 [para. 34].

Habeas Corpus Act, R.S.O. 1990, c. H.1, sect. 1, sect. 5 [para. 20].

Authors and Works Noticed:

La Forest, Extradition to and from Canada (3rd Ed. 1991), p. 15 [para. 60].

Counsel:

Henry S. Brown, Q.C., for the appellant;

J.E. Thompson, Q.C., and D.D. Graham Reynolds, for the respondents.

Solicitors of Record:

Gowling, Strathy & Henderson, Ottawa, Ontario, for the appellant;

Attorney General of Canada, Ottawa, Ontario, for the respondents.

This case was heard on May 25, 1992, at Ottawa, Ontario, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin and Iacobucci, JJ., of the Supreme Court of Canada.

On November 19, 1992, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Cory, J. (L'Heureux-Dubé and Iaco­bucci, JJ., concurring) - see paragraphs 1 to 65;

Lamer, C.J.C. (McLachlin, J., concur­ring) - see paragraph 66;

La Forest, J. - see paragraph 67;

Sopinka, J. - see paragraph 68.