SUPREME
COURT OF CANADA
Between:
(Jose) Raul Monter Ortega
Appellant
and
Attorney
General of Canada on behalf of
the
United Mexican States
Respondent
And between:
Robert Shull,
Terry Shull and Leonard Fiessel
Appellants
and
Attorney
General of Canada on behalf
of
the United States of America
Respondent
Coram:
McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron
and Rothstein JJ.
Reasons for
Judgment:
(paras. 1 to 3)
|
McLachlin C.J. (Bastarache, Binnie, LeBel, Deschamps,
Fish, Abella, Charron and Rothstein JJ. concurring)
|
______________________________
United Mexican States v. Ortega; United States of America v.
Fiessel, [2006] 2 S.C.R. 120, 2006 SCC 34
(Jose) Raul Monter Ortega Appellant
v.
Attorney General of Canada on behalf of
the United Mexican States Respondent
‑ and ‑
Robert Shull, Terry Shull and Leonard Fiessel Appellants
v.
Attorney General of Canada on behalf
of the United States of America Respondent
Indexed as: United Mexican States v. Ortega;
United States of America v. Fiessel
Neutral citation: 2006 SCC 34.
File No.: 30998.
2006: March 23; 2006: July 21.
Present: McLachlin C.J. and Bastarache, Binnie,
LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Charter of
Rights — Liberty and security of person — Fundamental
justice — Extradition — Committal
hearing — Whether provisions of extradition legislation relating to
evidence at committal hearing permit extradition on unavailable
evidence — If so, whether provisions infringe principles of
fundamental justice applicable to extradition — Canadian Charter of
Rights and Freedoms, s. 7 — Extradition Act, S.C. 1999,
c. 18, ss. 29 , 32(1) (b).
Extradition of the appellants was sought, by Mexico in
one case and the US in the other, under the treaty method provided for in
s. 32(1) (b) of the Extradition Act . The appellants alleged
that s. 32(1) (b) infringes s. 7 of the Canadian Charter of
Rights and Freedoms because the treaty method does not contain a
requirement that the evidence tendered at the committal hearing be certified as
available for trial in the requesting state. In both cases the extradition
judges accepted the constitutional objection, but the Court of Appeal set aside
those decisions and remitted the matters to the extradition judges.
Held: The
appeals should be allowed and the cases returned to the extradition judges.
For the reasons given in United States of America
v. Ferras, [2006] 2 S.C.R. 77, 2006 SCC 33, s. 32(1) (b)
of the Extradition Act is constitutional. [1‑3]
Cases Cited
Followed: United
States of America v. Ferras, [2006] 2 S.C.R. 77, 2006 SCC 33.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
ss. 1 , 7 .
Extradition Act, S.C. 1999, c. 18,
s. 32(1) (b).
APPEALS from a judgment of the British Columbia Court
of Appeal (Donald, Smith and Thackray JJ.A.) (2005),
253 D.L.R. (4th) 237, 212 B.C.A.C. 228, 350 W.A.C. 228,
196 C.C.C. (3d) 225,
[2005] B.C.J. No. 1090 (QL), 2005 BCCA 270,
setting aside a judgment of Koenigsberg J. (2004),
237 D.L.R. (4th) 281, 183 C.C.C. (3d) 75,
117 C.R.R. (2d) 191, 118 C.R.R. (2d) 189,
[2004] B.C.J. No. 402 (QL), 2004 BCSC 210, and a
judgment of Goepel J., [2004] B.C.J. No. 1434 (QL),
2004 BCSC 908, dismissing applications for committal. Appeals
allowed.
Richard C. C. Peck, Q.C., and Eric V. Gottardi, for the
appellant (Jose) Raul Monter Ortega.
David J. Martin, for the appellants Robert Shull, Terry Shull and
Leonard Fiessel.
Robert Frater and Janet Henchey,
for the respondents.
The judgment of the Court was delivered by
1
The Chief Justice — These
appeals, together with the appeals by Ferras, Latty and
Wright (United States of America v. Ferras; United States of America
v. Latty, [2006] 2 S.C.R. 77, 2006 SCC 33 (the “Ferras appeals”)),
released concurrently, raise the constitutionality of provisions of the Extradition
Act, S.C. 1999, c. 18 , relating to the evidence that can be
put before an extradition judge. For the reasons given in the Ferras
appeals, I conclude that the challenged provisions are constitutional.
However, I would allow the appeals and return the cases to the extradition
judges for determination in accordance with the interpretation of the Act set
out in those reasons.
2
It will be open to the United Mexican States and the United States of
America to supplement the evidence by showing that the evidence is available
for trial.
3
The constitutional questions are answered as follows:
1. Does s. 32(1)(b)
of the Extradition Act, S.C. 1999, c. 18 , in whole or in part, infringe
the rights and freedoms guaranteed by s. 7 of the Canadian Charter of Rights
and Freedoms ?
Answer: No.
2. If so, is the
infringement a reasonable limit prescribed by law as can be demonstrably
justified in a free and democratic society under s. 1 of the Canadian
Charter of Rights and Freedoms ?
Answer: It is unnecessary to
answer this question.
Appeals allowed.
Solicitors for the appellant
(Jose) Raul Monter Ortega: Peck and Company,
Vancouver.
Solicitors for the appellants Robert Shull,
Terry Shull and Leonard Fiessel: David J. Martin Law
Corporation, Vancouver.
Solicitor for the respondents: Attorney
General of Canada, Ottawa.