M.M. v. Canada (Minister of Justice), (2015) 480 N.R. 1 (SCC)

JudgeMcLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner and Côté, JJ.
CourtSupreme Court of Canada
Case DateMarch 17, 2015
JurisdictionCanada (Federal)
Citations(2015), 480 N.R. 1 (SCC);2015 SCC 62

M.M. v. Can. (2015), 480 N.R. 1 (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: [2015] N.R. TBEd. DE.014

M.M. (appellant) v. Minister of Justice Canada on behalf of the United States of America (respondent) and Criminal Lawyers' Association (Ontario) and British Columbia Civil Liberties Association (interveners)

(35838; 2015 SCC 62; 2015 CSC 62)

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

Supreme Court of Canada

McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner and Côté, JJ.

December 11, 2015.

Summary:

M.M. brought her children to Canada from the State of Georgia, U.S.A., in violation of a custody order, allegedly for their safety. The State of Georgia sought her extradition to face prosecution for interstate interference with custody. The Minister of Justice (Can.) issued an Authority to Proceed (ATP) with extradition, listing the corresponding Canadian offences of abduction in contravention of a custody order (Criminal Code, s. 282(1)) and abduction of a person under sixteen (s. 280(1)).

The Quebec Superior Court, in a decision with neutral citation 2011 QCCS 4800, dismissed the application for committal for extradition and ordered her immediate discharge. The U.S.A. appealed.

The Quebec Court of Appeal, in a decision with neutral citation 2012 QCCA 1142, set aside the Superior Court's order of discharge and ordered M.M.'s committal for extradition. Thereafter, the Minister of Justice (Can.) ordered that M.M. be surrendered for extradition. M.M. applied for judicial review of the surrender order.

The Quebec Court of Appeal, in a decision with neutral citation 2014 QCCA 681, dismissed M.M.'s application for judicial review. M.M. appealed both the committal and surrender orders.

The Supreme Court of Canada, Abella, Karakatsanis and Côté, JJ., dissenting, dismissed the appeal respecting both the committal and surrender orders.

Extradition - Topic 1

General - The Supreme Court of Canada reviewed the fundamental principles of extradition law - See paragraphs 14 to 26 - The court stated, inter alia, that extradition served pressing and substantial Canadian objectives: protecting the public against crime through its investigation; bringing fugitives to justice for the proper determination of their criminal liability; and ensuring, through international cooperation, that national boundaries did not serve as a means of escape from the rule of law - To achieve those pressing and substantial objectives, the extradition process was founded on the principles of "reciprocity, comity and respect for differences in other jurisdictions" - See paragraph 15.

Extradition - Topic 1

General - The Supreme Court of Canada reviewed the fundamental principles of extradition law - The court stated, inter alia, that in order to protect the rights and interests of persons sought for extradition, there had to be a careful balancing of the broader purposes of extradition with those individual rights and interests - The court noted that extradition was a three-phase process and, at each stage, concern to balance those interests was apparent - Also underlying all three phases was the broad principle of double criminality (i.e., the principle that Canada should not extradite a person to face punishment in another country for conduct that would not be criminal in Canada) - See paragraph 17.

Extradition - Topic 1

General - The Supreme Court of Canada discussed the three phases of the extradition process: (1) the Authority to Proceed (ATP), (2) the Judicial Committal or Discharge; and (3) Ministerial surrender or refusal to surrender for extradition - See paragraphs 19 to 26.

Extradition - Topic 1

General - The Supreme Court of Canada discussed the applicability of the double criminality rule to the extradition process - See paragraphs 18 to 26 and 111 and 112 - The court stated that "At the first two phases of the extradition process [i.e., the Authorization to Proceed phase and the Committal or Discharge phase], the Extradition Act addresses double criminality in express statutory terms. At the third [the Surrender phase], the rationale underlying the broad principle of double criminality informs the exercise of the Minister's power to refuse surrender for extradition where surrender would be 'unjust or oppressive' under s. 44(1)(a) of the Extradition Act" - See paragraph 18.

Extradition - Topic 2.1

General - Extradition legislation - Interpretation - The Supreme Court of Canada stated that the broad principle of double criminality was expressed in s. 3(1)(b) of the Extradition Act: "A person may be extradited from Canada" if "the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada" - That broad principle, however, was given more precise meaning and was applied in more precise ways by other provisions of the Act - "The Extradition Act, of course, must be read as a whole and the broad words of s. 3(1)(b) must be understood in light of the more specific provisions" - See paragraph 17.

Extradition - Topic 2606

Evidence and procedure before examining judge - Nature of hearing - The Supreme Court of Canada affirmed that the extradition process was not a trial and should not be turned into one - See paragraphs 2, 3 and 64.

Extradition - Topic 2607

Evidence and procedure before examining judge - General - Role of extradition judge - An extradition judge refused to commit an individual (M.M.) for extradition to the State of Georgia, U.S.A., for the offence of interstate interference with custody - In considering whether the applicable Canadian offences were made out, the judge considered exculpatory evidence and the defence of necessity (Criminal Code, s. 285) - The Quebec Court of Appeal allowed an appeal - M.M. appealed - The Supreme Court of Canada dismissed the appeal - The court held that the extradition judge erred in law in weighing and relying on evidence of defences and other exculpatory circumstances - The extradition judge exceeded her role by failing to give weight to the presumption of reliability of the certified record of the case (ROC), and in weighing evidence that was incapable of showing that evidence in the ROC was so unreliable that it should be rejected or of showing that the inferences relied on by the requesting state were unreasonable - The extradition judge also erred in law in relation to her analysis of the Canadian offences - Here, contrary to the extradition judge's finding, the evidence in the ROC was sufficient to justify committal - See paragraphs 86 to 103.

Extradition - Topic 2607

Evidence and procedure before examining judge - General - Role of extradition judge - The Supreme Court of Canada discussed the scope of the extradition judge's role in the committal phase of the extradition process - The court stated, inter alia, that the extradition judge's role was to determine whether there was a prima facie case of a Canadian crime, not to become embroiled in questions about possible defences or the likelihood of convictions - Extradition hearings were not trials, rather they were intended to be expeditious procedures to determine whether a trial should be held - See paragraphs 36 to 43 and 64.

Extradition - Topic 2607

Evidence and procedure before examining judge - General - Role of extradition judge - The Supreme Court of Canada discussed the scope of the extradition judge's role in the committal phase of the extradition process - The court noted that the role of the extradition judge at the committal phase had evolved as a result of amendments to other aspects of the Extradition Act and the requirements of the Charter - Therefore, while the test for committal for trial continued to apply in extradition, the role of the extradition judge in applying that test differed in two respects from the preliminary inquiry context: (1) the extradition judge, unlike the preliminary inquiry justice, could grant Charter remedies that pertained directly to the circumscribed issues relevant to committal; and (2) the extradition judge, unlike the preliminary inquiry justice, had to engage in a limited weighing of the evidence to determine whether there was a plausible case - The court held that an extradition judge was not to consider defences on which the accused had a burden of proof, including the excuse of qualified necessity set out in s. 285 of the Criminal Code - Nor was the judge to generally weigh exculpatory evidence - Any weighing had only to be in the context of deciding whether the evidence undermined the presumed reliability of the requesting state's evidence to the point that it should be discarded - See paragraphs 36 to 87.

Extradition - Topic 2607

Evidence and procedure before examining judge - General - Role of extradition judge - The Supreme Court of Canada stated that at the committal stage of the extradition process, the extradition judge's role with respect to double criminality had been given specific legislative expression in the test for committal under s. 29 of the Extradition Act - It was s. 29 that delineated the judge's role in determining whether the evidence met the domestic component of double criminality and directly linked that role to the test for committal at trial - That test did not permit the judge to consider aspects of the criminal conduct on which the accused had an evidential burden - "Basic fairness to the person sought does not require that the extradition process have all of the safeguards of a trial, 'provided the material establishes a case sufficient to put the person on trial' ..." - See paragraphs 52 and 53.

Extradition - Topic 2607

Evidence and procedure before examining judge - General - Role of extradition judge - The Supreme Court of Canada discussed the role of the extradition judge where the person involved sought to adduce evidence for the purpose of undermining the reliability of the requesting state's evidence - The court noted that in order to be admissible such evidence had to be reliable and relevant (Extradition Act, ss. 29(1) and 32(1)(c)) - The reliability requirement meant that the evidence had to possess "sufficient indicia of reliability to make it worth consideration by the judge at the hearing" - That "threshold reliability" requirement was not an onerous standard - However, the relevance requirement was linked directly to the test for committal under s. 29 - "In other words, the evidence must be relevant to the task of the extradition judge , that is, whether the test for committal under s. 29(1) of the Extradition Act has been met ... To decide whether the proffered evidence is relevant in this sense, the extradition judge must consider the proposed evidence in the light of the limited weighing of evidence which he or she must undertake in applying the test for committal" - See paragraphs 73 to 76.

Extradition - Topic 2607

Evidence and procedure before examining judge - General - Role of extradition judge - The Supreme Court of Canada, per Cromwell, J., stated that "Before the extradition judge embarks on hearing evidence from the person sought whose object is to challenge the reliability of the evidence presented by the requesting state, the judge may, and I would suggest generally should, require an initial showing that the proposed evidence is realistically capable of satisfying the high standard that must be met in order to justify refusing committal on the basis of unreliability of the requesting state's evidence. This showing may be based on summaries or will-say statements or similar offers of proof. If the judge concludes that the proposed evidence, taken at its highest, is not realistically capable of meeting this standard, it ought not to be received ... I conclude that in order to admit evidence from the person sought, directed against the reliability of the evidence of the requesting state, the judge must be persuaded that the proposed evidence, considered in light of the entire record, could support the conclusion that the evidence essential to committal is so unreliable or defective that it should be disregarded" - The court offered some examples of evidence that might or might not be admissible - See paragraphs 73 to 85.

Extradition - Topic 2607

Evidence and procedure before examining judge - General - Role of extradition judge - The Supreme Court of Canada discussed the role of the extradition judge where the person involved sought to adduce evidence for the purpose of undermining the reliability of the requesting state's evidence - The court stated that examples of evidence that might not meet the high threshold of admissibility were evidence which: (1) invited the judge to assess credibility, (2) established a basis for competing inferences, or (3) provided for a defence or exculpatory account of events - The court stated that it was not saying that courts had to always reject such evidence - Cromwell, J., stated that "It is possible that such evidence may in certain, and likely fairly unusual cases, meet the high threshold for showing that the evidence of the requesting state should not be relied on. Ferras leaves open the possibility that, for example, evidence of virtually unimpeachable authenticity and reliability which contradicts the ROC [certified record of the case] could rebut the presumption of its reliability and could justify refusal to commit. Such situations I would expect to be very rare" - See paragraphs 81 to 85.

Extradition - Topic 2641

Evidence and procedure before examining judge - Evidence - General - [See first, third, fourth, fifth, sixth and seventh Extradition - Topic 2607 ].

Extradition - Topic 2642

Evidence and procedure before examining judge - Evidence - General - Relevance and reliability - [See first, third, fifth, sixth and seventh Extradition - Topic 2607 ].

Extradition - Topic 2645

Evidence and procedure before examining judge - Evidence - General - Admissibility (incl. voir dire) - [See fifth, sixth and seventh Extradition - Topic 2607 ].

Extradition - Topic 2654

Evidence and procedure before examining judge - Evidence - General - Fugitive's right to call evidence - [See fifth, sixth and seventh Extradition - Topic 2607 ].

Extradition - Topic 2660

Evidence and procedure before examining judge - Evidence - General - The record (incl. certification) - [See first and seventh Extradition - Topic 2607 ].

Extradition - Topic 2706

Evidence and procedure before examining judge - Procedure - Test for committal - The Supreme Court of Canada discussed the test for committal for extradition - See paragraphs 43 to 85.

Extradition - Topic 2901

Provisional arrest and detention - General - [See third Extradition - Topic 1 ].

Extradition - Topic 2914

Provisional arrest and detention - Warrant of committal - General - Authority to proceed - [See third and fourth Extradition - Topic 1 ].

Extradition - Topic 3342

Surrender to demanding country - Conditions precedent - That surrender not be unjust or oppressive - The Supreme Court of Canada held that the Minister of Justice in deciding whether an individual would be surrendered for extradition should consider, when relevant, how the person sought would be affected by the unavailability of a comparable defence in the requesting state to that available in Canada - That analysis should be done in considering whether surrender would be unjust or oppressive or otherwise contrary to the principles of fundamental justice - However, not every difference in the availability of defences or in jeopardy made extradition unjust or oppressive or contrary to the principles of fundamental justice - Rather there was a high test, which the court outlined in detail - See paragraphs 111 to 124.

Extradition - Topic 3342

Surrender to demanding country - Conditions precedent - That surrender not be unjust or oppressive - The Supreme Court of Canada held that in order for the unavailability of a defence in the requesting state that was available in Canada to engage the threshold for refusal of surrender under s. 44(1)(a) of the Extradition Act (i.e., be unjust or oppressive) or be considered contrary to the principles of fundamental justice, the person sought had to show three things: (1) it had to be clear that there was, in fact, a difference in the respective laws of the requested and requesting state so that the defence was available in Canada but no comparable defence was available in the requesting state; (2) there had to be a reasonable prospect of success were the defence to be raised if the accused were tried for the same conduct in Canada; and (3) the difference between the laws of the two countries had to lead to a significantly greater jeopardy for the person sought in the requesting state - If the threshold was met, the Minister had to weigh that along with all other relevant considerations in reaching a decision - The court offered some possible scenarios as illustrations - See paragraphs 121 to 126.

Extradition - Topic 3342

Surrender to demanding country - Conditions precedent - That surrender not be unjust or oppressive - M.M. brought her children to Canada from the State of Georgia, U.S.A., in violation of a custody order, allegedly for their safety - The Minister of Justice (Can.) ordered M.M. surrendered for extradition to Georgia respecting the offence of interstate interference with custody - M.M. claimed that the Minister's decision was unreasonable and unjust or oppressive because the Minister failed to consider that the Canadian defence of necessity was not available in Georgia - The Supreme Court of Canada held that the Minister's decision was not unreasonable - The decision did not meet any of the three threshold requirements which could engage the Minister's power to refuse surrender under s. 44(1)(a) of the Extradition Act (i.e., on the basis the surrender would be unjust or oppressive) - M.M. did not show that there was any difference in substance between the law in Canada and the law in Georgia - The material in the record, considered as a whole, did not show a reasonable prospect of success on the Canadian qualified defence of necessity if M.M. were tried for the alleged conduct in Canada - M.M. failed to show that she faced significantly greater jeopardy in Georgia than in Canada - See paragraphs 130 to 141.

Extradition - Topic 3342

Surrender to demanding country - Conditions precedent - That surrender not be unjust or oppressive - [See second Extradition - Topic 3370 ].

Extradition - Topic 3348

Surrender to demanding country - Conditions precedent - Similarity of crimes between jurisdictions (rule of double criminality) - [See second and fourth Extradition - Topic 1 , Extradition - Topic 2.1 and fourth Extradition - Topic 2607 ].

Extradition - Topic 3370

Surrender to demanding country - Considerations - Best interests of the children - The Supreme Court of Canada discussed how the Minister of Justice in making a surrender decision was to deal with the issue of the best interests of the children - See paragraphs 141 to 151.

Extradition - Topic 3370

Surrender to demanding country - Considerations - Best interests of the children - The Supreme Court of Canada, per Cromwell, J., stated the "The respondent [Minister of Justice] accepts that, in making a surrender decision, the Minister can consider personal circumstances, including the hardship extradition will create for families. I would add that it is necessary for the Minister to do so where the material before him or her puts these considerations in play. This obligation extends to considering the best interests of children who will or may be affected by extradition. That said, however, the best interests of children on surrender for extradition must be considered in light of other important legal principles and the facts of the individual case ... 'the legal principle of the "best interests of the child" may be subordinated to other concerns in appropriate contexts'; its application 'is inevitably highly contextual'; and '[s]ociety does not always deem it essential that the "best interests of the child" trump all other concerns in the administration of justice' ..." - See paragraphs 144 and 145.

Extradition - Topic 3370

Surrender to demanding country - Considerations - Best interests of the children - The Supreme Court of Canada stated that "It is clear from our jurisprudence that the 'unjust or oppressive' test set out in s. 44(1)(a) of the Extradition Act and the deferential standard of judicial review of a surrender order create a high threshold: the Minister will not lightly be found to have unreasonably ordered surrender. This same threshold applies to the impact of extradition on the best interests of children ... To be clear, the high threshold that applies generally under s. 44(1)(a) of the Extradition Act does not diminish the Minister's obligation to carefully assess the impact of surrender on children. But it does underline the point that the weighing of those considerations must take account of other important principles of extradition law viewed in light of all of the circumstances of the particular case" - See paragraphs 152 to 154.

Extradition - Topic 3370

Surrender to demanding country - Considerations - Best interests of the children - M.M. brought her children to Canada from the State of Georgia, U.S.A., in violation of a custody order, allegedly for their safety - The Minister of Justice (Can.) ordered that M.M. be surrendered for extradition to Georgia respecting the offence of interstate interference with custody - M.M. claimed that the Minister's decision was unreasonable and unjust and oppressive because the Minister failed to give appropriate consideration to the effect of extradition on the best interests of M.M.'s children - The Supreme Court of Canada held that the Minister's decision was reasonable and contained no reviewable error - The Minister was required to consider the best interests of the children - The Minister's key conclusions were that the best interests of the children were unclear, that the impact of extradition on the children was also unclear and that there were important considerations favouring surrender for extradition - The court held that those key conclusions were reasonable and they led to a reasonable decision to surrender M.M. to Georgia - See paragraphs 155 to 169.

Extradition - Topic 3381

Surrender to demanding country - Procedure - General - [See third Extradition - Topic 1 ].

Cases Noticed:

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161, refd to. [paras. 2, 240].

United States of America et al. v. Ferras, [2006] 2 S.C.R. 77; 351 N.R. 1; 214 O.A.C. 326; 2006 SCC 33, refd to. [paras. 10, 199].

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; 2001 SCC 7, refd to. [para. 14].

United States of America et al. v. Nadarajah, [2012] 3 S.C.R. 609; 437 N.R. 107; 301 O.A.C. 264; 2012 SCC 70, refd to. [paras. 15, 250].

Sriskandarajah v. United States of America - see United States of America et al. v. Nadarajah.

Canada (Minister of Justice) v. Fischbacher, [2009] 3 S.C.R. 170; 394 N.R. 139; 255 O.A.C. 288; 2009 SCC 46, refd to. [paras. 15, 205].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [paras. 15, 205].

Németh v. Canada (Minister of Justice), [2010] 3 S.C.R. 281; 408 N.R. 198; 2010 SCC 56, refd to. [paras. 25, 245].

R. v. Skogman, [1984] 2 S.C.R. 93; 54 N.R. 34, refd to. [para. 37].

R. v. Arcuri (G.), [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126; 2001 SCC 54, refd to. [para. 37].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 37].

R. v. Mezzo, [1986] 1 S.C.R. 802; 68 N.R. 1; 43 Man.R.(2d) 161, refd to. [para. 37].

R. v. Charemski (J.), [1998] 1 S.C.R. 679; 224 N.R. 120; 108 O.A.C. 126, refd to. [para. 37].

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321, refd to. [paras. 38, 230].

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. [paras. 38, 210].

McVey, Re - see United States of America v. McVey.

R. v. Hynes (D.W.), [2001] 3 S.C.R. 623; 278 N.R. 299; 208 Nfld. & P.E.I.R. 181; 624 A.P.R. 181; 2001 SCC 82, refd to. [para. 40].

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. [paras. 40, 251].

R. v. Sazant (M.), [2004] 3 S.C.R. 635; 348 N.R. 1; 210 O.A.C. 376; 2004 SCC 77, refd to. [para. 46].

R. v. Russell (D.), [2001] 2 S.C.R. 804; 274 N.R. 247; 150 O.A.C. 99; 2001 SCC 53, refd to. [para. 46].

R. v. Deschamplain (D.), [2004] 3 S.C.R. 601; 347 N.R. 287; 211 O.A.C. 323; 2004 SCC 76, refd to. [para. 47].

R. v. Dubois, [1986] 1 S.C.R. 366; 66 N.R. 289; 41 Man.R.(2d) 1, refd to. [para. 47].

United States of America et al. v. Yang (2001), 149 O.A.C. 364; 56 O.R.(3d) 52, refd to. [para. 51].

United States of America v. Graham (2007), 243 B.C.A.C. 248; 401 W.A.C. 248; 2007 BCCA 345, refd to. [para. 67].

France (Republic) v. Diab (2014), 320 O.A.C. 301; 120 O.R.(3d) 174; 2014 ONCA 374, refd to. [para. 67].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 68].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, refd to. [para. 68].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 68].

United States of America et al. v. Prudenza et al. (2007), 219 O.A.C. 369; 2007 ONCA 84, refd to. [para. 71].

United States of America v. Anderson - see United States of America et al. v. Prudenza et al.

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 77].

R. v. Pires - see R. v. Lising (R.) et al.

Canada (Attorney General) v. Mach, [2006] O.T.C. 731 (Sup. Ct.), refd to. [para. 77].

United States of America v. Mach - see Canada (Attorney General) v. Mach.

United States of America v. Edwards (2011), 306 B.C.A.C. 160; 516 W.A.C. 160; 2011 BCCA 100, refd to. [para. 77].

Scarpitti v. United States of America (2007), 247 B.C.A.C. 234; 409 W.A.C. 234; 2007 BCCA 498, refd to. [para. 82].

Canada (Attorney General) v. Orphanou (2011), 285 O.A.C. 143; 107 O.R.(3d) 365; 2011 ONCA 612, refd to. [para. 82].

United States of America v. Orphanou - see Canada (Attorney General) v. Orphanou.

United States of America v. Ranga (2012), 317 B.C.A.C. 207; 540 W.A.C. 207; 2012 BCCA 81, refd to. [para. 82].

Canada (Attorney General) v. Bennett (2014), 353 B.C.A.C. 311; 603 W.A.C. 311; 2014 BCCA 145, refd to. [para. 82].

United States of America v. Aneja (2014), 319 O.A.C. 3; 120 O.R.(3d) 620; 2014 ONCA 423, refd to. [para. 82].

United States of America v. U.A.S. (2013), 344 B.C.A.C. 302; 587 W.A.C. 302; 2013 BCCA 483, refd to. [para. 82].

Canada (Attorney General) v. Viscomi (2014), 329 O.A.C. 47; 2014 ONCA 879, refd to. [para. 83].

Canada (Attorney General) v. Hislop (2009), 267 B.C.A.C. 155; 450 W.A.C. 155; 2009 BCCA 94, refd to. [para. 83].

Singh v. Canada (Attorney General) (2007), 238 B.C.A.C. 213; 393 W.A.C. 213; 2007 BCCA 157, refd to. [para. 84].

Canada (Minister of Justice) v. Gorcyca (2007), 220 O.A.C. 35; 2007 ONCA 76, refd to. [para. 84].

United States of America v. Lorenz et al. (2007), 243 B.C.A.C. 219; 401 W.A.C. 219; 2007 BCCA 342, refd to. [para. 84].

Canada (Attorney General) v. Sosa (2012), 536 A.R. 61; 559 W.A.C. 61; 2012 ABCA 242, refd to. [para. 84].

Canada (Attorney General) v. Aziz (2013), 342 B.C.A.C. 305; 585 W.A.C. 305; 2013 BCCA 414, refd to. [paras. 84, 259].

United States of America v. Cameron et al. (2015), 370 B.C.A.C. 179; 635 W.A.C. 179; 323 C.C.C.(3d) 219; 2015 BCCA 145, refd to. [paras. 84, 259].

United States of America v. Doak - see United States of America v. Cameron et al.

R. v. Chartrand (J.), [1994] 2 S.C.R. 864; 170 N.R. 161; 74 O.A.C. 257, refd to. [para. 92].

R. v. Dawson (E.F.), [1996] 3 S.C.R. 783; 203 N.R. 254; 155 N.S.R.(2d) 241; 457 A.P.R. 241, refd to. [para. 92].

R. v. Vokey (J.P.) (2005), 217 B.C.A.C. 231; 358 W.A.C. 231; 2005 BCCA 498, refd to. [para. 92].

R. v. Flick (R.J.) (2005), 217 B.C.A.C. 237; 358 W.A.C. 237; 2005 BCCA 499, refd to. [para. 92].

Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761; 373 N.R. 339; 236 O.A.C. 371; 2008 SCC 23, refd to. [paras. 106; 254].

United States of America et al. v. Johnson (2002), 166 O.A.C. 345; 62 O.R.(3d) 327 (C.A.), refd to. [para. 106].

R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161, refd to. [para. 132].

R. v. Ryan (N.P.), [2013] 1 S.C.R. 14; 438 N.R. 80; 324 N.S.R.(2d) 205; 1029 A.P.R. 205; 2013 SCC 3, refd to. [paras. 132, 239].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 132].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 145].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [paras. 146, 262].

Ganis v. Canada (Minister of Justice) (2006), 233 B.C.A.C. 243; 386 W.A.C. 243; 2006 BCCA 543, refd to. [para. 152].

Savu v. Canada (Ministre de la Justice), 2013 QCCA 554, refd to. [paras. 152; 258].

United States of America v. Thornett (2014), 363 B.C.A.C. 311; 624 W.A.C. 311; 2014 BCCA 464, refd to. [para. 152].

Canada (Attorney General) et al. v. Pakulski, [2015] O.A.C. Uned. 619; 2015 ONCA 539, refd to. [para. 152].

H.H. v. Deputy Prosecutor of the Italian Republic, [2013] 1 A.C. 338; [2012] UKSC 25, refd to. [para. 153].

B.H. et al. v. United Kingdom (Lord Advocate) et al., [2012] N.R. Uned. 96; [2013] 1 A.C. 413; [2012] UKSC 24, refd to. [para. 153].

United States of America et al. v. Adam (2003), 170 O.A.C. 222; 64 O.R.(3d) 268 (C.A.), refd to. [para. 163].

Canada (Attorney General) v. Pakulski, [2014] O.A.C. Uned. 46; 2014 ONCA 81, refd to. [para. 163].

United States of America v. Johnstone (2013), 333 B.C.A.C. 107; 571 W.A.C. 107; 2013 BCCA 2, refd to. [para. 163].

United States of America v. Fong, [2005] O.A.C. Uned. 56; 193 C.C.C.(3d) 533 (C.A.), refd to. [para. 163].

United States of America v. Lépine, [1994] 1 S.C.R. 286; 163 N.R. 1; 69 O.A.C. 241, refd to. [para. 205].

Washington (State) v. Johnson et al., [1988] 1 S.C.R. 327; 83 N.R. 1, refd to. [para. 206].

Child and Family Services of Winnipeg Central v. K.L.W. et al., [2000] 2 S.C.R. 519; 260 N.R. 203; 150 Man.R.(2d) 161; 230 W.A.C. 161; 2000 SCC 48, refd to. [para. 220].

Thomson v. Thomson, [1994] 3 S.C.R. 551; 173 N.R. 83; 97 Man.R.(2d) 81; 79 W.A.C. 81, refd to. [para. 222].

J.A.P. v. R.S.P. (1999), 118 O.A.C. 169; 43 O.R.(3d) 485 (C.A.), refd to. [para. 222].

Pollastro v. Pollastro - see J.A.P. v. R.S.P.

D., Re, [2007] 1 A.C. 619; 367 N.R. 330; [2006] UKHL 51, refd to. [para. 222].

R. v. Latimer (R.W.), [2001] 1 S.C.R. 3; 264 N.R. 99; 203 Sask.R. 1; 240 W.A.C. 1, refd to. [para. 239].

Argentina (Republic) v. Mellino, [1987] 1 S.C.R. 536; 76 N.R. 51; 80 A.R. 1, refd to. [para. 240].

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. 240].

Caplin v. Canada (Minister of Justice), [2015] 2 S.C.R. 568; 471 N.R. 199, refd to. [para. 253].

United States of America v. Taylor (2005), 216 B.C.A.C. 137; 356 W.A.C. 137 (C.A.), refd to. [para. 256].

R. v. Anderson (F.), [2014] 2 S.C.R. 167; 458 N.R. 1; 350 Nfld. & P.E.I.R. 289; 1088 A.P.R. 289; 2014 SCC 41, refd to. [para. 258].

Provost v. Canada (Procureur général), 2015 QCCA 1172, refd to. [para. 258].

Kunze v. Canada (Minister of Justice) (2005), 209 B.C.A.C. 32; 345 W.A.C. 32 (C.A.), refd to. [para. 258].

Canada (Minister of Justice) v. Thomson, 2005 CanLII 5078 (Ont. C.A.), refd to. [para. 258].

United States of America v. Lucero-Echegoyen (2013), 336 B.C.A.C. 188; 574 W.A.C. 188; 2013 BCCA 149, refd to. [para. 259].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 262].

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, refd to. [para. 279].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 57].

Criminal Code, R.S.C. 1985, c. C-46, sect. 280(1), sect. 282(1) [para. 6].

Extradition Act, S.C. 1999, c. 18, sect. 3(1)(b) [para. 17]; sect. 29(1) [para. 74]; sect. 29(1)(a) [para. 2 et seq.]; sect. 32(1)(c) [para. 74]; sect. 44 [para. 119]; sect. 44(1)(a) [para. 26].

Counsel:

Julius H. Grey, Cornelia Herta-Zvezdin, Clemente Monterosso and Iris Simixhiu, for the appellant;

Ginette Gobeil and Diba Majzub, for the respondent;

John Norris and Meara Conway, for the intervener, the Criminal Lawyers' Association (Ontario);

Brent Olthuis, Greg J. Allen and Michael Sobkin, for the intervener, the British Columbia Civil Liberties Association.

Solicitors of Record:

Grey Casgrain, Montreal, Quebec; Clemente Monterosso, Montreal, Quebec, for the appellant;

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

John Norris Barrister, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario);

Hunter Litigation Chambers, Vancouver, British Columiba; Michael Sobkin, Ottawa, Ontario, for the intervener, the British Columbia Civil Liberties Association.

This decision was heard on March 17, 2015, before McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner and Côté, JJ., of the Supreme Court of Canada. The decision of the court was delivered on December 11, 2015, and the following opinions were filed:

Cromwell, J. (McLachlin, C.J.C., Moldaver and Wagner, JJ., concurring) - see paragraphs 1 to 172;

Abella, J., dissenting (Karakatsanis and Côté, JJ., concurring) - see paragraphs 173 to 282.

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1 practice notes
  • Canada (Attorney General) v. Badesha et al., 2016 BCCA 88
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • February 26, 2016
    ...of America v. El Zein, [1989] 1 S.C.R. 1469; 96 N.R. 321; 23 Q.A.C. 182, refd to. [para. 72]. M.M. v. Canada (Minister of Justice) (2015), 480 N.R. 1; 2015 SCC 62, refd to. [para. Canada (Minister of Justice) v. Fischbacher (2009), 394 N.R. 139; 255 O.A.C. 288; 2009 SCC 46, refd to. [para. ......
1 cases
  • Canada (Attorney General) v. Badesha et al., 2016 BCCA 88
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • February 26, 2016
    ...of America v. El Zein, [1989] 1 S.C.R. 1469; 96 N.R. 321; 23 Q.A.C. 182, refd to. [para. 72]. M.M. v. Canada (Minister of Justice) (2015), 480 N.R. 1; 2015 SCC 62, refd to. [para. Canada (Minister of Justice) v. Fischbacher (2009), 394 N.R. 139; 255 O.A.C. 288; 2009 SCC 46, refd to. [para. ......

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