United States of America v. Johnstone, 2013 BCCA 2

• Judge: Saunders, Neilson and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 18, 2012
• Jurisdiction: British Columbia
• Citations: 2013 BCCA 2;(2013), 333 B.C.A.C. 107 (CA)

USA v. Johnstone (2013), 333 B.C.A.C. 107 (CA);

    571 W.A.C. 107

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. JA.016

In The Matter Of the Extradition Act, S.C. 1999, c. 18, as amended

The Attorney General of Canada on behalf of the United States of America (respondent) v. Jay Cameron Johnstone (applicant)

(CA036370; 2013 BCCA 2)

Indexed As: United States of America v. Johnstone

British Columbia Court of Appeal

Saunders, Neilson and Bennett, JJ.A.

January 10, 2013.

Summary:

The Attorney General of Canada (Minister) ordered that Johnstone be surrendered to the United States (Extradition Act, s. 40), to face a charge of child-luring in Maricopa County, Arizona. The Minister declined Johnstone's application for reconsideration of that order. Johnstone applied for judicial review of each of those decisions.

The British Columbia Court of Appeal dismissed the applications.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - [See Extradition - Topic 3383 ].

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - In February 2006, Johnston was arrested in Maricopa County, Arizona, for child-luring, with a trial scheduled for July 2006 - However, on May 1, 2006, he was detained by U.S. immigration authorities because his visa had expired - He was deported on June 12, 2006 - On October 12, 2007, the United States requested Johnstone's extradition on the child-luring charge - A number of proceedings ensued and on October 6, 2011, the Attorney General of Canada (Minister) ordered Johnstone's surrender back to the U.S. - Johnstone applied for judicial review, arguing that his surrender was unjust and oppressive (Extradition Act, s. 44(1)(a)) and violated his s. 7 Charter rights because the United States had deported him allegedly with full knowledge that he was facing this charge and because of unreasonable delay (abuse of process) - The British Columbia Court of Appeal dismissed the application, holding that the Minister's decision was reasonable - See paragraphs 30 to 45.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition proceedings - The Attorney General of Canada (Minister) ordered that Johnstone be surrendered to the United States (Extradition Act, s. 40), to face a charge of child-luring in Maricopa County, Arizona - He applied for judicial review, arguing that his surrender was unjust and oppressive, and violated his rights under s. 7 of the Charter, because the conditions in the Maricopa County detention facilities were oppressive and inhumane - The British Columbia Court of Appeal dismissed the application, holding that the Minister's decision was reasonable on the jurisprudence and the evidence available - Harsh conditions in the requesting state did not justify refusing surrender - See paragraphs 46 to 52.

Extradition - Topic 19

General - Bars to extradition - Delay - [See first Civil Rights - Topic 3129 ].

Extradition - Topic 22

General - Bars to extradition - Abuse of process - [See first Civil Rights - Topic 3129 ].

Extradition - Topic 23

General - Bars to extradition - Charter breaches - [See both Civil Rights - Topic 3129 ].

Extradition - Topic 3383

Surrender to demanding country - Procedure - Reasons for decision - The Attorney General of Canada (Minister) ordered that Johnstone be extradited to the United States to face a charge of child-luring - He applied for judicial review, arguing that the Minister's reasons for surrender were inadequate - The British Columbia Court of Appeal dismissed the application - Supreme Court jurisprudence had shed significant doubt as to whether adequacy of reasons was a stand-alone basis for setting aside a decision - Rather, the reviewing court should adopt a more organic exercise and review the reasonableness of the outcome and the adequacy of the reasons together - Here, the reasons were sufficient to allow the reviewing court to understand why the Minister made his decision and to determine whether that decision fell within the range of reasonable outcomes - See paragraphs 54 to 58.

Extradition - Topic 3384

Surrender to demanding country - Procedure - Due process and fundamental justice - [See both Civil Rights - Topic 3129 ].

Cases Noticed:

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. 30].

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. 30].

United States of America v. Gillingham (2004), 201 B.C.A.C. 26; 328 W.A.C. 26; 184 C.C.C.(3d) 97; 2004 BCCA 226, refd to. [para. 34].

Argentina (Republic) v. Mellino, [1987] 1 S.C.R. 536; 76 N.R. 51; 80 A.R. 1; 33 C.C.C.(3d) 334, refd to. [para. 40].

United States of America v. Allard and Charette, [1987] 1 S.C.R. 564; 75 N.R. 260; 8 Q.A.C. 178; 33 C.C.C.(3d) 501, refd to. [para. 41].

Garz v. United States of America (2006), 215 C.C.C.(3d) 429; 2006 QCCA 222, refd to. [para. 41].

United States of America v. Reumayr (2005), 214 B.C.A.C. 261; 353 W.A.C. 261; 199 C.C.C.(3d) 1; 2005 BCCA 391, refd to. [para. 43].

Turchin v. Étas-Unis d'Amérique (2007), 219 C.C.C.(3d) 214; 2007 QCCA 136, refd to. [para. 44].

Hungary (Republic) et al. v. Dascalu (2009), 268 B.C.A.C. 175; 452 W.A.C. 175; 244 C.C.C.(3d) 98; 2009 BCCA 132, refd to. [para. 44].

Suresh v. Canada (Minister of Citizenship and Immigration, [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 46].

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. 49].

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

Gwynne v. Minister of Justice (Canada) (1998), 103 B.C.A.C. 1; 169 W.A.C. 1; 50 C.R.R.(2d) 250, leave to appeal refused (1998), 227 N.R. 298; 120 B.C.A.C. 87; 196 W.A.C. 87, refd to. [para. 50].

United States of America v. Reumayr (2003), 184 B.C.A.C. 251; 302 W.A.C. 251; 176 C.C.C.(3d) 377; 2003 BCCA 375, refd to. [para. 52].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 54].

United States of America v. Taylor (2003), 182 B.C.A.C. 83; 300 W.A.C. 83; 2003 BCCA 250, refd to. [para. 54].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 55].

Counsel:

P. Edelmann, for the appellant;

D. Strachan and D. Majzub, for the respondent.

These applications were heard in Vancouver, British Columbia, on September 18, 2012, before Saunders, Neilson and Bennett, JJ.A., of the British Columbia Court of Appeal. The following decision was delivered for the court on January 10, 2013, by Neilson, J.A.