Németh v. Canada (Minister of Justice), (2010) 408 N.R. 198 (SCC)

JudgeMcLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
CourtSupreme Court (Canada)
Case DateJanuary 13, 2010
JurisdictionCanada (Federal)
Citations(2010), 408 N.R. 198 (SCC);2010 SCC 56

Németh v. Can. (2010), 408 N.R. 198 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2010] N.R. TBEd. NO.047

Jószef Németh and Jószefne Németh (a.k.a. Józsefne Nagy Szidonia) (appellants) v. Minister of Justice of Canada (respondent) and Barreau du Québec, Québec Immigration Lawyers Association and Canadian Council for Refugees (intervenors)

(33016; 2010 SCC 56; 2010 CSC 56)

Indexed As: Németh 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 appellants were granted refugee protection in Canada on the basis of a well-founded fear of persecution in their native Hungary because of their Roma ethnic origin. Years later, Hungary requested Canada to extradite them and the Minister of Justice ordered their surrender for extradition. The appellants applied for judicial review.

The Quebec Court of Appeal, in a decision reported 2009 CarswellQue 8504; 2009 QCCA 99, dismissed the application. The appellants appealed, arguing that because of Canada's non-refoulement obligations, they could not be extradited back to Hungary so long as they retained their refugee status in Canada. The Minister of Justice claimed that they could be extradited in spite of their refugee status because they were charged in Hungary with a serious non-political crime (fraud) and failed to establish any continuing risk of persecution upon their return.

The Supreme Court of Canada allowed the appeal, set aside the judgment of the Court of Appeal and the Minister's surrender decisions, and remitted the matter to the Minister for reconsideration according to law. The court held that the Immigration and Refugee Protection Act did not constrain the authority of the Minister of Justice to extradite a person with refugee status. The Minister had that authority under the Extradition Act. However, persons entitled to refugee protection in Canada and therefore protection against refoulement were entitled to protection under s. 44(1)(b) of the Extradition Act. Section 44(1)(b) of the Extradition Act provided that the Minister of Justice shall refuse to make a surrender order if the Minister was satisfied that the request for extradition was made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, etc., or that the person's position may be prejudiced for any of those reasons. In this case, the Minister's surrender decision was fundamentally flawed. He failed to address s. 44(1)(b), he imposed a burden on the appellants to show continuing risk of persecution and he applied a wrong and more onerous test than that prescribed by s. 44(1)(b). The decision was based on incorrect legal principles and was unreasonable. Further he did not deal with the "serious non-political crime" issues that arose in these circumstances.

Aliens - Topic 2

Definitions and general principles - Legislation - Interpretation - [See third, fourth, fifth and sixth Extradition - Topic 8.1 ].

Aliens - Topic 1783

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Place of deportation (incl. deportation to place of torture (non-refoulement)) (IRPA, s. 115) - [See second, third, fourth, fifth and sixth Extradition - Topic 8.1 ].

Civil Rights - Topic 660.4

Liberty - Limitations on - Extradition - The Supreme Court of Canada stated that because the exercise of the Minister of Justice's power to surrender a person for extradition under the Extradition Act implicated the liberty and in some cases the security of the person sought, the Minister owed a duty of fairness both at common law and in accordance with the principles of fundamental justice under s. 7 of the Charter - The court opined that the duty of fairness generally included adequate disclosure of the case against the person sought, a reasonable opportunity to respond to it and a reasonable opportunity to state his or her own case - See paragraph 70.

Civil Rights - Topic 1340.1

Security of the person - Extradition - General - [See Civil Rights - Topic 660.4 ].

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - [See Civil Rights - Topic 660.4 ].

Extradition - Topic 1

General - The Supreme Court of Canada briefly outlined the three phases of the extradition process under the Extradition Act - See paragraphs 61 to 64.

Extradition - Topic 2.1

General - Extradition legislation - Interpretation - Section 44 of the Extradition Act provided that the Minister of Justice shall refuse to make a surrender order if the Minister was satisfied that: (a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or (b) the request for extradition was made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, etc., or that the person's position may be prejudiced for any of those reasons - The Supreme Court of Canada interpreted s. 44 - The court stated, inter alia, that the mandatory reasons for refusal of surrender prevailed over provisions of an extradition treaty - See paragraph 69.

Extradition - Topic 2.1

General - Extradition legislation - Interpretation - Section 44 of the Extradition Act provided that the Minister of Justice shall refuse to make a surrender order if the Minister was satisfied that: (a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or (b) the request for extradition was made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, etc., or that the person's position may be prejudiced for any of those reasons - The Supreme Court of Canada interpreted s. 44 - The court first placed s. 44 in the context of the extradition process and then explained how it interacted with the refugee determination process - The court discussed the purpose of s. 44 in detail - See paragraphs 59 to 113.

Extradition - Topic 2.1

General - Extradition legislation - Interpretation - Section 44(1)(b) of the Extradition Act provided that the Minister of Justice shall refuse to make a surrender order if the Minister was satisfied that the request for extradition was made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, etc., or that the person's position may be prejudiced for any of those reasons - The Supreme Court of Canada interpreted s. 44(1)(b) - The court held that s. 44(1)(b) had to be considered whenever the Minister's surrender decision concerned a person with refugee status in Canada and the requesting state was the one from which the refugee had been granted protection - See paragraph 114.

Extradition - Topic 2.1

General - Extradition legislation - Interpretation - Section 44(1)(b) of the Extradition Act provided that the Minister of Justice shall refuse to make a surrender order if the Minister was satisfied that the request for extradition was made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, etc., or that the person's position may be prejudiced for any of those reasons - The Supreme Court of Canada interpreted s. 44(1)(b) - The court held that the concluding words of s. 44(1)(b) (i.e., "or that the person's position may be prejudiced for any of those reasons") were not explicitly limited to prejudice to the person in the prosecution or punishment - Rather, the court read the closing words of s. 44(1)(b) broadly as protecting a refugee against refoulement which risked prejudice to him or her on the listed grounds in the requesting state whether or not the prejudice was strictly linked to prosecution or punishment - Thus, a person who was a refugee and therefore entitled to non-refoulement protection under the Refugee Convention was entitled to invoke the protection under s. 44(1)(b) - Further, a person who met the definition of refugee under s. 96 of the Immigration and Refugee Protection Act also met the test for risk of prejudice set out in s. 44(1)(b) - Thus, persons entitled to refugee protection in Canada and therefore protection against refoulement were entitled to protection under s. 44(1)(b) - See paragraphs 87 to 102.

Extradition - Topic 2.1

General - Extradition legislation - Interpretation - Section 44(1)(b) of the Extradition Act provided that the Minister of Justice shall refuse to make a surrender order if the Minister was satisfied that the request for extradition was made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, etc., or that the person's position may be prejudiced for any of those reasons - The Supreme Court of Canada interpreted s. 44(1)(b) - The court held that refusal of surrender was mandatory if the Minister was satisfied that the conditions which lead to conferral of refugee status still existed and it was not shown that the person sought was or had become ineligible for refugee status - That is, a person's position may be prejudiced within the meaning of s. 44(1)(b) if surrendered in violation of Canada's non-refoulement obligations under the Refugee Convention - The relevant time for considering the person's ongoing entitlement to refugee protection and therefore protection against refoulement and any change of conditions in the requesting state for the purposes of s. 44(1)(b) was the time at which surrender was sought - See paragraph 113.

Extradition - Topic 2.1

General - Extradition legislation - Interpretation - Section 44(1)(b) of the Extradition Act provided that the Minister of Justice shall refuse to make a surrender order if the Minister was satisfied that the request for extradition was made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, etc., or that the person's position may be prejudiced for any of those reasons - The Supreme Court of Canada interpreted s. 44(1)(b) - The court held that persons entitled to refugee protection in Canada and therefore protection against refoulement were entitled to protection under s. 44(1)(b) - The court held that the question of entitlement to protection against refoulement arose at the time surrender was being considered and had to be assessed in light of the circumstances at that time - The court stated that "the refugee status of the person sought establishes, absent proof on the balance of probabilities to the contrary, that his or her position will be prejudiced on a prohibited ground under s. 44(1)(b) if surrendered. The refugee does not have the burden of showing that the circumstances giving rise to conferral of refugee status continue to exist in the requesting state or that he or she otherwise remains entitled to refugee protection" - See paragraphs 103 to 113.

Extradition - Topic 2.1

General - Extradition legislation - Interpretation - Section 44(1)(b) of the Extradition Act provided that the Minister of Justice shall refuse to make a surrender order if the Minister was satisfied that the request for extradition was made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, etc., or that the person's position may be prejudiced for any of those reasons - The Supreme Court of Canada stated that "This clear link between s. 44(1)(b) and Canada's international obligations under the Refugee Convention has important implications for its interpretation and application in the refugee context. The Refugee Convention has an 'overarching and clear human rights object and purpose' and domestic law aimed at implementing the Refugee Convention, such as s. 44(1)(b), must be interpreted in light of that human rights object and purpose ... Section 44(1)(b), when applied to the situation of a refugee whose extradition is sought, must be understood in the full context of refugee protection" - See paragraph 86.

Extradition - Topic 2.1

General - Extradition legislation - Interpretation - [See first and second Extradition - Topic 8.1 ].

Extradition - Topic 4

General - Role of Minister - Duty of fairness - [See Civil Rights - Topic 660.4 ].

Extradition - Topic 8

General - Extradition - Application of Charter - [See Civil Rights - Topic 660.4 ].

Extradition - Topic 8.1

General - Extradition - Application of immigration legislation - The appellants were granted refugee protection in Canada on the basis of a well-founded fear of persecution in their native Hungary because of their Roma ethnic origin - Years later, Hungary requested Canada to extradite them because of a fraud charge ($2,700) - The Minister of Justice eventually ordered their surrender for extradition, holding that the principle of non-refoulement did not stand in the way of the order - The appellants appealed, arguing that because of Canada's non-refoulement obligations, they could not be extradited back to Hungary so long as they retained their refugee status in Canada - The Supreme Court of Canada allowed the appeal - The Minister's consideration of the case was fundamentally flawed - He failed to address s. 44(1)(b) of the Extradition Act, which provided that the Minister of Justice shall refuse to make a surrender order if satisfied that the request for extradition was made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, etc., or that the person's position may be prejudiced for any of those reasons - The Minister also erred in imposing a burden on the appellants to show continuing risk of persecution and he applied a wrong and more onerous test than that prescribed by s. 44(1)(b) - The decision was based on incorrect legal principles and was unreasonable - Further he did not deal with the "serious non-political crime" issues that arose in these circumstances - See paragraphs 1 to 124.

Extradition - Topic 8.1

General - Extradition - Application of immigration legislation - The appellants were granted refugee protection in Canada on the basis of a well-founded fear of persecution in their native Hungary because of their Roma ethnic origin - Years later, Hungary requested Canada to extradite them and the Minister of Justice ordered their surrender for extradition - The appellants argued that because of Canada's non-refoulement obligations, they could not be extradited back to Hungary so long as they retained their refugee status in Canada (i.e., that the powers to extradite under the Extradition Act (EA) had to be read as being subject to the detailed refugee scheme under the Immigration and Refugee Protection Act (IRPA)) - The Minister of Justice, on the other hand, claimed that the appellants could be extradited in spite of their refugee status because they were charged in Hungary with a serious non-political crime (fraud) (i.e., the interaction of extradition and non-refoulement was addressed mainly through the EA and, more particularly, through the mandatory and discretionary bases on which the Minister could refuse surrender of a person sought for extradition) - The Supreme Court of Canada rejected the appellants' argument that the power to surrender for extradition was subject to the refugee process under the IRPA - The court largely accepted the Minister's position that protection against refoulement was addressed in the extradition context by the mandatory and discretionary bars to surrender in the EA - The court found however that the Minister applied the wrong legal tests in exercising those powers in this case - See paragraphs 11 to 124.

Extradition - Topic 8.1

General - Extradition - Application of immigration legislation - At issue was resolution of a possible conflict between the non-refoulement provision (Immigration and Refugee Protection Act (IRPA,) s. 115), whereby a protected person (incl. a refugee) could not be "removed from Canada" to a country where they would be at risk of persecution, and the general powers of the Minister of Justice to surrender a person for extradition under the Extradition Act (EA) which had no express limitation or exception relating to refugees - It was argued that the statutes conflicted because the IRPA prohibited refoulement, while the EA permitted the Minister to do so through extradition - It was further submitted that the Minister's powers under the EA should be interpreted as not applying to refugees in order to avoid the conflict - The Supreme Court of Canada found that there was no conflict between the IRPA and the EA because the prohibition on removal from Canada under s. 115 of the IRPA did not apply to extradition - Applying the modern principle of statutory interpretation, it was clear that the term "removed" had a specialized meaning in the IRPA - The words "removed from Canada" in s. 115(1) referred to the removal processes under the IRPA, not to the surrender for extradition under the EA - See paragraphs 14 to 31.

Extradition - Topic 8.1

General - Extradition - Application of immigration legislation - The non-refoulement provision (Immigration and Refugee Protection Act (IRPA,) s. 115), provided that protected persons (incl. refugees) could not be "removed from Canada" to a country where they would be at risk of persecution - It was argued that s. 115 should be interpreted in a way that was consistent with Canada's non-refoulement obligations under the United Nations Convention Relating to the Status of Refugees (i.e., art. 33 which prohibited expulsion or return of a refugee, an obligation which was widely accepted to include removal by way of extradition) - It followed, the submission went, that "removal" in the IRPA should receive the same broad interpretation as the Convention because only such an interpretation was consistent with Canada's obligations in relation to non-refoulement under the Refugee Convention - The Supreme Court of Canada accepted that the protection against refoulement under the Refugee Convention applied to expulsion by extradition - Also, where possible, statutes should be interpreted in a way which made their provisions consistent with Canada's international treaty obligations and principles of international law - However, the presumption that legislation implemented Canada's international obligations was rebuttable - If the provisions were unambiguous, they had to be given effect - Section 115 did not address removal by extradition and so its clear meaning had to be given effect - Moreover, the court did not accept that this interpretation of s. 115 resulted in Canadian domestic law failing to respect its non-refoulement obligations under the Refugee Convention - Thus, s. 115 could not and need not be interpreted as applying to removal by extradition - See paragraphs 32 to 35.

Extradition - Topic 8.1

General - Extradition - Application of immigration legislation - The non-refoulement provision (Immigration and Refugee Protection Act (IRPA,) s. 115), provided that protected persons (incl. refugees) shall not be "removed from Canada" to a country where they would be at risk of persecution - It was argued that s. 115, and particularly the phrase "shall not be removed from Canada", prohibited extradition of a refugee - It was argued that the plain meaning of the words included removal by extradition, that this interpretation was necessary to implement Canada's obligations under the Refugee Convention; and that the judgment in Suresh v. Canada (Minister of Citizenship and Immigration) (SCC 2002) supported that view - The Supreme Court of Canada stated that Suresh did not provide support for that view - Suresh was concerned with the deportation of a refugee on security grounds; it had nothing to do with extradition - The court concluded that s. 115 of the IRPA did not address removal by extradition and there was no conflict between that provision and the provisions of the EA authorizing the Minister to surrender a refugee for extradition - See paragraphs 35 to 39.

Extradition - Topic 8.1

General - Extradition - Application of immigration legislation - It was argued that the absence of a provision in the Extradition Act expressly addressing the extradition of a person with refugee status withheld that power from the Minister of Justice (i.e., the "silence argument") - It was submitted that, in effect, a finding of refugee status under the Immigration and Refugee Protection Act (IRPA) was binding on the Minister under the EA until it was ended using the procedures of cessation or revocation under the IRPA - The Supreme Court of Canada held that this position found no explicit support in the text of the IRPA or the EA and was inconsistent with the apparent intention of Parliament - The Minister of Justice was intended to take the lead when a refugee's rights were implicated in an extradition decision - Moreover, the "binding effect" argument, was not supported under international law principles - The court concluded that Canada's obligations under the Refugee Convention did not require an earlier formal determination of refugee status to be binding on the extradition authorities - The court therefore rejected the "silence argument" - The IRPA did not constrain the authority of the Minister to extradite a person with refugee status - The Minister had that authority under the EA - See paragraphs 40 to 55.

Extradition - Topic 8.1

General - Extradition - Application of immigration legislation - [See second, third, fourth, fifth, sixth, and seventh Extradition - Topic 2.1 ].

Extradition - Topic 264

Treaties - Interpretation - Conflict with extradition act - [See first Extradition - Topic 2.1 ].

Extradition - Topic 3366

Surrender to demanding country - Considerations - Refugee status - [See third, fourth, fifth and sixth Extradition - Topic 2.1 and first, second, third and fourth Extradition - Topic 8.1 and Extradition - Topic 3386 ].

Extradition - Topic 3384

Surrender to demanding country - Procedure - Due process and fundamental justice - [See Civil Rights - Topic 660.4 ].

Extradition - Topic 3386

Surrender to demanding country - Procedure - Consultation - The Supreme Court of Canada noted that the refugee determination process was not expressly mentioned in the Extradition Act other than in s. 40(2) - Section 40(2) provided that before ordering the surrender of "a person who has made a claim for refugee protection", the Minister of Justice must consult with the Minister responsible for the Immigration and Refugee Protection Act (i.e., the Minister of Citizenship and Immigration (MCI)) - The court noted that the provision referred only to those who had claimed refugee protection, not those who had been granted refugee protection - The court stated that it followed that, in the case of a person with refugee status, s. 40(2) did not require the Minister of Justice to consult with the MCI - However, it had been held that the provision did not preclude the Minister from doing so (Hungary (Republic) v. Horvath (ONCA 2007) - The court held that, in any event, such consultation was required by virtue of s. 7 of the Charter where a surrender decision concerned a person with refugee status - See paragraph 66.

Extradition - Topic 3903

Practice - Appeals - Scope of - The appellants were granted refugee protection in Canada on the basis of a well-founded fear of persecution in their native Hungary because of their Roma ethnic origin - Years later, Hungary requested Canada to extradite them and the Minister of Justice eventually ordered their surrender for extradition - The appellants applied for judicial review - The Quebec Court of Appeal dismissed the application - The appellants appealed - The Supreme Court of Canada stated that "The standard of judicial review is not contentious. The Minister's decision to surrender for extradition should be treated with deference; it will generally be reviewed for reasonableness. However, in order for a decision to be reasonable, it must relate to a matter within the Minister's statutory authority and he must apply the correct legal tests to the issues before him ..." - See paragraph 10.

Statutes - Topic 526

Interpretation - General principles - Consistency with comity of nations or international law - [See fourth Extradition - Topic 8.1 ].

Statutes - Topic 1648

Interpretation - Extrinsic aids - Legislative history - Legislative committee reports and minutes - The Supreme Court of Canada stated that resort could be had to the evidence of Departmental officials who testified before Parliamentary committees regarding legislative amendments where it was relevant and reliable and provided it was used with caution and not given undue weight - See paragraph 46.

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General - [See third Extradition - Topic 8.1 ].

Words and Phrases

Shall not be removed from Canada - The Supreme Court of Canada discussed the meaning of this phrase as it appeared in s. 115 (the non-refoulement provision) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 - See paragraphs 24 to 31.

Cases Noticed:

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. [para. 10].

R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867; 275 N.R. 201; 206 Nfld. & P.E.I.R. 304; 618 A.P.R. 304; 2001 SCC 56, refd to. [para. 14].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 24].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 26].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 26].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 34].

R. v. Zingre, Wuest and Reiser, [1981] 2 S.C.R. 392; 38 N.R. 272; 10 Man.R.(2d) 62, refd to. [para. 34].

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 34].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 34].

Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269; 292 N.R. 250; 164 O.A.C. 354; 2002 SCC 62, refd to. [para. 34].

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 161 A.R. 201; 225 W.A.C. 201; 2000 SCC 31, refd to. [para. 46].

Castillo v. Castillo, [2005] 3 S.C.R. 870; 343 N.R. 144; 376 A.R. 224; 360 W.A.C. 224; 2005 SCC 83, refd to. [para. 46].

Canada 3000 Inc. (Bankrupt), Re, [2006] 1 S.C.R. 865; 349 N.R. 1; 212 O.A.C. 338; 2006 SCC 24, refd to. [para. 46].

R. v. United Kingdom (Secretary of State for the Home Department); Ex parte Yogathas, [2003] 1 A.C. 920; [2002] UKHL 36, refd to. [para. 50].

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. 60].

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. [para. 61].

Hungary (Republic) v. Hovarth (2007), 230 O.A.C. 66; 65 Imm. L.R.(3d) 169; 2007 ONCA 734, leave to appeal refused [2008] 1 S.C.R. ix; 386 N.R. 383; 252 O.A.C. 398, refd to. [para. 66].

Whitley v. United States of America (1994), 75 O.A.C. 100; 119 D.L.R.(4th) 693 (C.A.), affd. [1996] 1 S.C.R. 467; 197 N.R. 169; 91 O.A.C. 121, refd to. [para. 70].

Canada (Minister of Justice) v. Pacificador (2002), 162 O.A.C. 299; 166 C.C.C.(3d) 321 (C.A.), refd to. [para. 72].

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. 73].

United States of America et al. v. Pannell (2007), 232 O.A.C. 56; 227 C.C.C.(3d) 336; 2007 ONCA 786, refd to. [para. 73].

Hurley v. United States of Mexico et al. (1997), 101 O.A.C. 121; 35 O.R.(3d) 481 (C.A.), refd to. [para. 73].

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

Bonamie, Re (2001), 293 A.R. 201; 257 W.A.C. 201; 96 Alta. L.R.(3d) 252; 2001 ABCA 267, refd to. [para. 73].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 86].

Folkerts v. State-Secretary of Justice (1978), 74 I.L.R. 472 (Netherlands), refd to. [para. 92].

Hilali v. Central Court of Criminal Proceedings No. 5 of the National Court, Madrid, [2006] EWHC 1239 (Admin.); [2006] 4 All E.R. 435 (Q.B. Div. Ct.), refd to. [para. 94].

Croatia (Republic) v. Snedden, [2010] HCA 14; 265 A.L.R. 621, refd to. [para. 94].

Adjei v. Minister of Employment and Immigration, [1989] 2 F.C. 680; 132 N.R. 24 (F.C.A.), refd to. [para. 98].

R. v. United Kingdom (Secretary of State for the Home Department); Ex parte Sivakumaran - see Sivakumaran, Re.

Sivakumaran, Re, [1988] 1 A.C. 958; 98 N.R. 108 (H.L.), refd to. [para. 100].

M38/2002 v. Minister for Immigration and Multicultural and Indigenous Affairs, [2003] FCAFC 131; 199 A.L.R. 290, refd to. [para. 100].

Zaoui v. Attorney General (No. 2), [2005] 1 N.Z.L.R. 690 (C.A.), refd to. [para. 100].

Immigration and Naturalization Service v. Cardoza-Fonseca (1987), 480 U.S. 421 (Sup. Ct.), refd to. [para. 101].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 66].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 105, sect. 112 [para. 42]; sect. 115 [para. 22].

European Convention on Extradition, art. 3(2), art. 33(1) [para. 78].

Extradition Act, S.C. 1999, c. 18, generally [para. 3]; sect. 44(1)(a), sect. 44(1)(b) [para. 68].

United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969, No. 6, art. 1A(2) [para. 17]; art. 33 [para. 20]; art. 42 [para. 18].

United Nations Protocol Relating to the Status of Refugees, Can. T.S. 1969, No. 29 [para. 17].

Authors and Works Noticed:

Aughterson, E.P., Extradition: Australian Law and Procedure (1995), pp. 35, 36 [para. 52]; ྷྷ 111 to 115 [para. 94].

Bassiouni, M. Cherif, International Extradition: United States Law and Practice (5th Ed. 2007), p. 193 [para. 52].

Canada, Hansard, House of Commons Debates, vol. 135, No. 162, 1st Sess., 36th Parliament (November 30, 1998), pp. 10591, 10592, 10595 [para. 82].

Canada, House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Human Rights (November 5, 1998), (online: http://www2.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=36&Ses=1&DocId=1039052&File=0), p. 1710 [para. 83].

Canada, House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Human Rights (November 17, 1998), (online: http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=1039054&Language=E&Mode=1&Parl=36&Ses=1, generally [para. 84]; pp. 1145, 1205 [para. 47].

Canada, House of Commons, Standing Committee on Justice and Human Rights, Sixteenth Report (November 23, 1998), clause 44 [para. 85].

Canada, Standing Senate Committee on Legal and Constitutional Affairs, Proceedings of, Issue No. 60, 1st Sess., 36th Parliament (March 10, 1999), p. 60:6 ff. [para. 47].

Currie, Robert J., International & Transnational Criminal Law (2010), pp. 467, 468 [para. 69].

Droege, Cordula, Transfers of detainees: legal framework, non-refoulement and contemporary challenges (2008), 90 Int'l Rev. of the Red Cross 669, p. 677 [para. 33].

Duffy, Aoife, Expulsion to Face Torture? Non-refoulement in International Law (2008), 20 Int'l J. Refugee L. 373, generally [para. 104].

Feller, Erika, Türk, Volker, and Nicholson, Frances, La Protection des réfugiés en droit international (2008), generally [para. 109]; pp. 144, 145 [para. 33]; 596, 603 [para. 109].

Fitzpatrick, Joan, and Bonoan, Rafael, La cessation de la protection de réfugié, in Feller, Erika, Türk, Volker, and Nicholson, Frances, La Protection des réfugiés en droit international (2008), pp. 596, 603 [para. 109].

Goodwin-Gill, Guy S., and McAdam, Jane, The Refugee in International Law (3rd Ed. 2007), pp. 143 [para. 109]; 234 [para. 100]; 257 to 262 [para. 33]; 258 [para. 78].

Hansard - see Canada, Hansard, House of Commons Debates.

Hathaway, James C., The Rights of Refugees under International Law (2005), pp. 158, 278, 302 [para. 50]; 304, 305 [para. 100]; 920 [paras. 50, 109].

Jones, Martin, and Baglay, Sasha, Refugee Law (2007), p. 146 [para. 117].

Kapferer, Sibylle, The Interface between Extradition and Asylum (2003), generally [para. 33]; paras. 273 to 277 [para. 52].

Köfner, Gottfried, Case abstract (1993), 5 Int'l J. Refugee L. 271, p. 272 [para. 93].

Lauterpacht, Elihu, and Bethlehem, Daniel, Avis sur la portée et le contenu du principe du non-refoulement, in Feller, Erika, Turk, Volker, and Nicholson, Frances, La Protection des réfugiés en droit international (2008), pp. 144, 145 [para. 33].

Nicholls, Clive, Montgomery, Clare, and Knowles, Julian B., The Law of Extradition and Mutual Assistance (2nd Ed. 2007), ྷྷ 5.44 to 5.53 [para. 94].

Pirjola, Jari, Shadows in Paradise - Exploring Non-Refoulement as an Open Concept (2007), 19 Int'l J. Refugee L. 639, p. 645 [para. 100].

Schabas, William A., Non-Refoulement, in Final Report, Expert Workshop on Human Rights and International Co-operation in Counter-Terrosim (OSCE Office for Democratic Institutions and Human Rights and United Nations High Commissioner for Human Rights) (2007) (online: http:/www.osce.org/documents/odihr/2007/02/23424_en.pdf), p. 23 [para. 19].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 223, 224, 225 [para. 14]; 609 to 614 [para. 46].

Swart, Bert, Refusal of Extradition and the United Nations Model Treaty on Extradition (1992), 23 Neth Yrbk. Int'l L. 175, p. 194 [para. 80].

United Nations High Commissioner for Refugees, Guidance Note on Extradition and International Refugee Protection (2008) (online: http://www.unhcr.org/refworld/ docid/481ec7d92.html, generally [para. 18]; para. 53 [para. 52].

United Nations High Commissioner for Refugees, Problems of Extradition Affecting Refugees (October 16, 1980) No. 17 (XXXI) (online: http://www.unhcr.org/ refworld/docid/3ae68c4423.html, generally [para. 33].

United Nations High Commissioner for Refugees, Summary Conclusions - Exclusion from Refugee Status (May 3 and 4, 2001), para. 27, in Feller, Erika, Türk, Volker, and Nicholson, Frances, La Protection des réfugiés en droit international (2008), generally [para. 109].

United Nations, Office on Drugs and Crime, Revised Manuals on the Model Treaty on Extradition and on the Model Treaty on Mutual Assistance in Criminal Matters (2002), (online: http://www.unodc.org/pdf/ model_treaty_extradition_revised_manual.pdf), para. 47 [para. 80].

Waldman, Lorne, Immigration Law and Practice (2nd Ed. 2005) (2009 Looseleaf Update, Issue 1), vol. 1, ྷྷ 8.91 to 8.98 [para. 98].

Wouters, Kees, International Legal Standards for the Protection from Refoulement (2009), pp. 25 [para. 19]; 56, 57 [para. 100]; 99 [para. 50]; 136 [para. 33]; 137 [para. 78].

Counsel:

Marie-Hélène Giroux and Clément Monterosso, for the appellants;

Ginette Gobeil and Janet Henchey, for the respondent;

Pierre Poupart and Ronald Prégent, for the intervenor, Barreau du Québec;

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

John Norris and Brydie Bethell, for the intervenor, the Canadian Council for Refugees.

Solicitors of Record:

Monterosso Giroux, Montréal, Quebec, for the appellants;

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

Poupart, Dadour et Associés and Shadley, Battista, Montréal, Quebec, for the intervenor, Barreau du Québec;

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

John Norris and Brydie Bethell, Toronto, Ontario, for the intervenor, the Canadian Council for Refugees.

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 for judgment, for the court, in both official languages, on November 25, 2010.

To continue reading

Request your trial
144 practice notes
  • B010 v Canada (Citizenship and Immigration),
    • Canada
    • Supreme Court (Canada)
    • November 27, 2015
    ...2005 SCC 46, [2005] 2 S.C.R. 401; United States of America v. Anekwu, 2009 SCC 41, [2009] 3 S.C.R. 3; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340; de Guzman v. Canada (Minister of Citizenship and Immigration), ......
  • M.M. v. Canada (Minister of Justice), 2015 SCC 62
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • December 11, 2015
    ...member of the international community in responding to a request by an extradition partner: see, e.g., Németh v. Canada (Justice) , 2010 SCC 56, [2010] 3 S.C.R. 281 , at para. 64. [26] The Extradition Act provides a number of bases on which the Minister may or must refuse surrender: ss. 44......
  • M.M. v. United States of America, 2015 SCC 62
    • Canada
    • Supreme Court (Canada)
    • December 11, 2015
    ... 2009 SCC 46 , [2009] 3 S.C.R. 170 ; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 ; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281 ; Skogman v. The Queen, [1984] 2 S.C.R. 93 ; R. v. Arcuri, 2001 SCC 54 , [2001] 2 S.C.R. 828 ; United States of America v. S......
  • ATCO Gas and Pipelines Ltd. et al. v. Alberta Utilities Commission, 2014 ABCA 397
    • Canada
    • Court of Appeal (Alberta)
    • May 9, 2014
    ...Stack v. Dowden, [2007] N.R. Uned. 109; [2007] UKHL 17, refd to. [para. 76]. Németh v. Canada (Minister of Justice), [2010] 3 S.C.R. 281; 408 N.R. 198; 2010 SCC 56, refd to. [para. Lévis (City) v. Fraternité des policiers de Lévis Inc. et al., [2007] 1 S.C.R. 591; 359 N.R. 199; 2007 SCC 14,......
  • Request a trial to view additional results
117 cases
  • B010 v Canada (Citizenship and Immigration),
    • Canada
    • Supreme Court (Canada)
    • November 27, 2015
    ...2005 SCC 46, [2005] 2 S.C.R. 401; United States of America v. Anekwu, 2009 SCC 41, [2009] 3 S.C.R. 3; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340; de Guzman v. Canada (Minister of Citizenship and Immigration), ......
  • M.M. v. United States of America, 2015 SCC 62
    • Canada
    • Supreme Court (Canada)
    • December 11, 2015
    ... 2009 SCC 46 , [2009] 3 S.C.R. 170 ; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 ; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281 ; Skogman v. The Queen, [1984] 2 S.C.R. 93 ; R. v. Arcuri, 2001 SCC 54 , [2001] 2 S.C.R. 828 ; United States of America v. S......
  • Mason v. Canada (Citizenship and Immigration), 2023 SCC 21
    • Canada
    • Supreme Court (Canada)
    • September 27, 2023
    ...of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281; referred to: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Northern Regional Health Authority v. Horrocks......
  • ATCO Gas and Pipelines Ltd. et al. v. Alberta Utilities Commission, 2014 ABCA 397
    • Canada
    • Court of Appeal (Alberta)
    • May 9, 2014
    ...Stack v. Dowden, [2007] N.R. Uned. 109; [2007] UKHL 17, refd to. [para. 76]. Németh v. Canada (Minister of Justice), [2010] 3 S.C.R. 281; 408 N.R. 198; 2010 SCC 56, refd to. [para. Lévis (City) v. Fraternité des policiers de Lévis Inc. et al., [2007] 1 S.C.R. 591; 359 N.R. 199; 2007 SCC 14,......
  • Request a trial to view additional results
1 firm's commentaries
  • Case Law Update: 'Nemeth v. Canada (Justice)'
    • Canada
    • Mondaq Canada
    • January 10, 2011
    ...2010 SCC 56, Released 25 November 2010 Immigration and Refugee Law – Extradition – Principle of Non-Refoulement This appeal involved the interplay between the right of refugees not to be returned to a country where they will face prosecution (the principle of non-refoulement) and Canada's o......
26 books & journal articles
  • Inadmissibility
    • Canada
    • Irwin Books Immigration Law. Second Edition Part Three
    • June 19, 2015
    ...of the Act, and a pre-removal risk assessment on subsection 97(1) grounds pursuant to section 112 of the Act. See also N é meth v Canada , 2010 SCC 56 at para 50; and Poshteh , above note 69 at para 63. 231 IRPA , above note 1, s 20.1. See Chapter 9 for information on designated foreign nat......
  • Table of cases
    • Canada
    • Irwin Books International & Transnational Criminal Law. Third Edition
    • June 25, 2020
    ...II Judgment, 17 May 2011 (Int’l Crim Trib for Rwanda) .................................................. 720 Németh v Canada (Justice), 2010 SCC 56 .................................................. 555, 596 Netherlands v Short, The, reprinted in (1990), 29 ILM 1375 (Neth Sup Ct) ................
  • Procedural Fairness as a Principle of Fundamental Justice
    • Canada
    • Irwin Books Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms. Second Edition
    • June 22, 2019
    ...without possibility of parole for possession of ten ounces of cocaine). 377 Lake , above note 373 at para 24; Németh v Canada (Justice) , 2010 SCC 56 at para 71 [ Németh ]. Compare United States of Mexico v Hurley (1997), 35 OR (3d) 481 (CA). 378 France v Diab , 2014 ONCA 374, leave to appe......
  • Table of cases
    • Canada
    • Irwin Books Immigration Law. Second Edition Part Four
    • June 19, 2015
    ...2014 FC 842 ..................................................................................................301 Németh v Canada, 2010 SCC 56 .........................................................................511 Newfoundland and Labrador Nurses Union v Newfoundland and Labrador (Tre......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT