SUPREME
COURT OF CANADA
Citation: M.M. v. United States of America, 2015 SCC 62, [2015] 3
S.C.R. 973
|
Date: 20151211
Docket: 35838
|
Between:
M.M.
Appellant
and
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
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis,
Wagner and Côté JJ.
Reasons
for Judgment:
(paras. 1 to 172)
Dissenting
Reasons:
(paras. 173 to 282)
|
Cromwell J. (McLachlin C.J. and Moldaver
and Wagner JJ. concurring)
Abella J. (Karakatsanis and Côté JJ.
concurring)
|
M.M. v. United States of America, 2015
SCC 62, [2015] 3 S.C.R. 973
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
Indexed as: M.M. v.
United States of America
2015 SCC 62
File No.: 35838.
2015: March 17; 2015: December 11.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver,
Karakatsanis, Wagner and Côté JJ.
on appeal from the court of appeal for quebec
Extradition
— Committal hearings — Evidence — Role of extradition judge — Test for
committal — Principle of double criminality — Mother of three children facing
child abduction charges in U.S. — Whether extradition judge applied correct principles
in relation to double criminality and to own role in assessing reliability and
sufficiency of evidence — Whether extradition judge should consider evidence
about possible defences and other exculpating circumstances in deciding whether
to commit for extradition — Whether evidence justified mother’s committal — Extradition
Act, S.C. 1999, c. 18, ss. 3(1) , 29(1) (a).
Extradition
— Surrender order — Judicial review — Extradition Act providing that Minister
of Justice shall refuse to order surrender if unjust or oppressive having
regard to all relevant circumstances — Minister ordering mother’s surrender for
extradition to U.S. to face child abduction charges — Whether Minister gave appropriate
consideration to defence of necessity available under Canadian law but not
available under law of requesting state — Whether Minister gave appropriate
consideration to effect of extradition on best interests of children — Whether
Minister’s decision to surrender was reasonable — Extradition Act, S.C. 1999,
c. 18, s. 44(1) (a).
M
is the mother of three children. The family was living in Georgia when the
parents divorced. The Georgia courts awarded the father sole custody of the
children. M was given no visitation rights and was permitted no further contact
with the children. However, when the father reported the children missing in
2010, Georgia police located M with her children in a battered women’s shelter
in Quebec and arrested her. After being placed in foster care, the children
were returned to M’s care following her release on bail. The U.S. sought M’s
extradition to face prosecution in Georgia for the offence of interstate
interference with custody. The Minister of Justice issued an Authority to
Proceed (“ATP”) with extradition, listing the corresponding Canadian offences
of abduction in the Criminal Code . The Quebec Superior Court dismissed
the U.S.’s application for M’s committal for extradition. The Court of Appeal
for Quebec, however, set aside M’s discharge and ordered her committal for
extradition (the “committal order”). The Minister of Justice ordered M’s
surrender for extradition, and the Court of Appeal dismissed her application
for judicial review of the Minister’s decision (the “surrender order”). M
appeals both the committal and the surrender orders.
Held (Abella,
Karakatsanis and Côté JJ. dissenting): The appeal should be
dismissed in relation to both the committal order and the surrender order.
Per
McLachlin C.J. and Cromwell, Moldaver, and Wagner JJ.: With
respect to the committal order, the extradition judge applied incorrect
principles in relation to the double criminality requirement and her role in
assessing the reliability of the evidence before her. The extradition judge
erred in law in weighing and relying on evidence of defences and other
exculpatory circumstances, in finding that the requesting state’s evidence did
not justify committal, and in relation to her analysis of the Canadian
offences. With respect to the surrender order, potential defences and the best
interests of children are relevant to the Minister of Justice’s decision
making. In this case, the Minister appropriately considered the children’s best
interests and raised on his own motion the question of
Georgia law in relation to M’s possible defence of qualified necessity. As such, the Minister’s decision to send M to Georgia for trial was
reasonable.
The
extradition process serves two important objectives: the prompt compliance with
Canada’s international obligations to its extradition partners, and the
protection of the rights of the person sought. This requires a careful
balancing of the broader purposes of extradition with those individual rights
and interests. Extradition is a three-phase process (ATP, committal and
surrender) and, at each stage, concern to balance these interests is apparent.
Also underlying all three phases is the broad principle of double criminality
expressed in s. 3(1) (b) of the Extradition Act , that is, the
principle that Canada should not extradite a person to face punishment in
another country for conduct that would not be criminal in Canada.
The
committal phase of the extradition process serves an important, but
circumscribed and limited screening function. The extradition judge is to
determine whether there is evidence of conduct that, had it occurred in Canada,
would justify committal for trial in Canada on the offence set out in the ATP;
if not, the person must be discharged: s. 29(1) (a) and (3) of the Extradition
Act . This incorporates the test that a justice conducting a preliminary
inquiry must apply under Canadian law when deciding whether to commit an
accused for trial. The extradition judge’s role is to determine whether there
is a prima facie case of a Canadian crime, not to become embroiled in
questions about possible defences or the likelihood of conviction. Committal
hearings are not trials; they are intended to be expeditious procedures to
determine whether a trial should be held.
The
extradition judge’s role, like that of the preliminary inquiry justice, is not
concerned with defences or other matters on which the accused bears an
evidential or persuasive burden. While the role of the extradition judge at the
committal phase has evolved as a result of legislative amendments and the
requirements of the Charter, the basic principles governing extradition
have remained the same. There is nothing in the jurisprudence suggesting any
change in the extradition judge’s statutorily defined role. Moreover, the
jurisprudence did not and could not change by judicial decree the statutory
requirement that the requesting state has only to show that the record would
justify committal for trial in Canada.
Overall,
the correct approach is a restrained view of the role of the extradition judge
in assessing the reliability of evidence. The extradition judge’s starting
point is that the requesting state’s certified evidence is presumptively
reliable. This presumption may only be rebutted by showing fundamental
inadequacies or frailties in the material relied on by the requesting state. It
is only where the evidence supporting committal is so defective or appears so
unreliable that it would be dangerous or unsafe to act on it that the
extradition judge is justified in refusing committal on this basis. In order to
admit evidence from the person sought for this purpose, the judge must be
persuaded that the proposed evidence, considered in light of the entire record,
could support such a conclusion.
In
this case, the extradition judge erred in concluding that the requesting state’s
evidence in the certified record of the case (“ROC”) was insufficient to
require committal. She gave no weight to the presumption of reliability of the
ROC. The ROC supported committal here. The circumstantial evidence and the
reasonable inferences that could be drawn from it were sufficient to conclude
that a reasonable jury properly instructed could return a verdict of guilt. The
ROC permitted reasonable inferences that M had taken the children from the
parent who had lawful care of them, and was sufficient to support a reasonable
inference that M had abducted the children in violation of a custody order with
the intent to deprive the father of their possession.
The
extradition judge also erred in law in relation to the requirements for a prima
facie case and in relation to her analysis of the Canadian offences. With
respect to s. 280(1) of the Criminal Code (abduction of a person under
16), her conclusions that the children left of their own volition, that they were
not taken out of the father’s possession by M, that “all of the evidence”
indicates that the three children ran away from their father’s residence and
that their elder sister drove them to Canada are wrong in law and in fact. With
respect to the law, depriving parents of the “possession” of their children is
not limited to circumstances in which the parents were in physical control of
the children. The essence of the offence is interference with the parent’s
exercise of his or her right of control over the child. The prosecution would
not have to establish that M physically took the children. As well, the
extradition judge failed to recognize that there was conflicting evidence
concerning how the children came to be with M in Canada. The record before the
extradition judge could not reasonably be thought to meet the threshold of
showing either that the evidence in the ROC was so unreliable that it should be
discarded or that the inferences relied upon by the requesting state were
unreasonable.
With
respect to the qualified defence of necessity under s. 285 of the Criminal
Code , again the extradition judge erred both in law and in fact. With
respect to the law, it was not part of the extradition judge’s role to consider
whether there might be valid defences to the Canadian offences. As for the
facts, the extradition judge did not consider that s. 285 requires that there
be danger of imminent harm either to the children or to M herself. There was
evidence of neither.
At
the surrender stage of the proceedings, the Minister of Justice must not
surrender a person for extradition if this would be “unjust or oppressive”,
pursuant to s. 44(1) (a) of the Extradition Act . The basic concern
which underlies the broader principle of double criminality, which operates at
the ATP and committal phases of the extradition process, may also inform the
Minister’s surrender decision. The Minister engages in a weighing exercise of
all the relevant circumstances. This is a vitally important role because it
provides an additional safeguard of the rights of the person sought and
addresses matters that may not be properly considered at the two earlier stages
of the extradition process. The Minister has a role to play at the surrender
stage in assessing the potential consequences for the person sought of being
subjected to the law of the requesting state. Where surrender would be contrary
to the principles of fundamental justice, it will also be unjust and
oppressive.
In
exercising this power to surrender, the Minister must consider, when relevant,
the best interests of children who are or may be affected by the extradition
and whether there is a significant difference in jeopardy between domestic and
foreign law. With respect to this latter consideration, the rationale of the
broad principle of double criminality may inform the Minister’s exercise of
this authority to refuse surrender if there are defences available in Canada
that are not available in the requesting state.
Thus,
the availability of possible defences that fall outside of the scope of the
double criminality inquiry required at the first two phases of the extradition
process can nonetheless be relevant at the third. It follows from this that the
Minister should consider, when relevant, how the person sought would be
affected by the unavailability of a comparable defence in the requesting state.
However,
it does not follow that every difference in the availability of defences or in
jeopardy makes extradition unjust or oppressive or contrary to the principles
of fundamental justice. There is generally speaking nothing unjust in
surrendering a person to face the legal consequences of their acts in the place
where they were committed. Differences in legal systems — even substantial
differences — should not, generally speaking, constitute grounds for refusing
surrender. Before the unavailability of a defence could engage the threshold
for refusal, the person sought must show: (1) that there is, in fact, a
difference of substance in the respective laws of the requested and requesting
state so that the defence is available in Canada but no comparable defence is
available in the requesting state; (2) that there is a reasonable prospect of
success were the defence to be raised if he or she were tried for the same
conduct in Canada; and (3) that the difference between the laws of the two
countries must lead to a significantly greater jeopardy for the person sought
in the requesting state. If these three elements are present, then the Minister
is required to weigh the potential difference in defences along with all the
other relevant considerations in making his or her surrender decision. The onus
of persuasion remains on the person sought. The Minister’s ultimate conclusion
will be treated with deference on judicial review.
In
this case, the Minister’s decision was not unreasonable
because M did not meet any of the three threshold requirements. First, M did not show that there is any difference in substance
between the law in Canada and in Georgia. Given the fact that the U.S.
authorities advised the Minister that M could rely on a defence of coercion at
her trial in Georgia, there is no reason to assume that there is a significant
substantive difference between coercion and necessity. The record contains
nothing to support the assertion that there is no defence in Georgia comparable
to the statutory necessity defence. Second, the material in the record does not
show a reasonable prospect of success on the Canadian qualified defence of
necessity if M were tried for the alleged conduct in Canada. This defence is
available only if there was “imminent harm”. The material before the Minister
did not provide any basis to think that the imminent harm requirement was
present here. Furthermore, M’s position on the facts changed dramatically in
her submissions to the Minister, such that these contentions could not
reasonably be thought to be entitled to much weight. Third, M failed to show
that she faced significantly greater jeopardy in Georgia than in Canada.
On
the issue of the best interests of the children, the Minister, in making a
surrender decision, can consider personal circumstances, including the hardship
extradition will create for families, and it is necessary to do so where the
material puts these considerations in play. This obligation extends to
considering the best interests of children who will or may be affected by
extradition when the material on record shows that this is a relevant concern.
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 society does not always deem it essential
that the best interests of the child trump all other concerns. For example, the
consequences of a parent having to face criminal charges elsewhere cannot in
themselves be unjust or oppressive.
In
this case, the Minister was required to consider the best interests of the
children in making his surrender decision. 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. These key conclusions were
reasonable and they led to a reasonable decision to surrender M. On any
reasonable view of the record, what would be best for these children was
anything but clear given their unhappy, unstable and complicated family history
and the apparent problems of both parents. With respect to the impact of M’s
extradition on the children, there was nothing before the Minister and nothing
in the record before this Court providing any further information about the
children’s welfare or M’s parenting abilities after the children were returned
to her care, nothing that suggested to the Minister that the children would be
returned to their father’s care if their mother were surrendered, nothing in
the material about whether M would be incarcerated pending her trial in Georgia
or what impact her pending criminal charges could have on her relationship with
the children, and no evidence about other possible family placements either in
Canada or in the United States.
Per Abella,
Karakatsanis and Côté JJ. (dissenting): No one can be extradited
unless his or her conduct would have constituted an offence that is punishable
in Canada. This is known as the principle of double criminality, a cornerstone
of the extradition process in Canada. Its purpose is to ensure that no
one is surrendered from Canada to face prosecution in another country for
conduct that does not amount to a criminal offence in this country. Double criminality
is based on ensuring that a person’s liberty is not restricted as a consequence
of offences not recognized as criminal by the requested state. In other words,
where a person is extradited for conduct not amounting to a criminal offence in
Canada, the principle of double criminality is offended. Given the context of
extradition proceedings and the liberty interests involved, the threshold for
committal for extradition is higher than the threshold that applies to
preliminary inquiries in criminal proceedings. To justify committal in extradition proceedings, the evidence must be such that a
reasonable, properly instructed jury could return a guilty verdict.
Section 285 of the Criminal
Code states that no one will be found guilty of an offence under ss. 280 to
283 of the Criminal Code if the taking or harbouring of any young person
was necessary to protect him or her from danger of imminent harm. The result of
s. 285 is that an accused who would otherwise be guilty of an offence under ss.
280 to 283 , but whose conduct falls under the conditions specified in s. 285 ,
is not criminally liable for his or her actions. In the words of s. 3(1) (b)
of the Extradition Act , the conduct would not have constituted a
punishable offence. Consideration of the s. 285 defence where a person is
sought for extradition under ss. 280 to 283 is a necessary component of
determining whether a punishable offence has occurred in Canada.
Removing consideration of s. 285
from the scope of the extradition judge’s review would fail to give proper
effect to the principle of double criminality. If the double criminality
requirement is to achieve its purpose of ensuring that a person is not
surrendered to face prosecution for conduct that would not amount to a criminal
offence in Canada, s. 285 must be taken into account when deciding whether a
person’s conduct would constitute a crime if committed in this country and so
justify committal. To preclude its consideration is to unduly narrow the role
of the extradition judge in ensuring that double criminality is met, and in
providing a meaningful process safeguarding the liberty interests of the person
sought for extradition.
The defence that it was necessary
to rescue the children to protect them from imminent harm is not available in the
state of Georgia. The children were 9, 10 and 14 years old. The extradition
judge found that the children were afraid of their father and that he had
physically and mentally mistreated them. She also found that the children had
run away from their father without any assistance or even the knowledge of
their mother, that it was more than a week before they contacted her for help
and that the mother’s actions in taking the children after they ran away were
to protect them from further harm.
Based on a meaningful judicial
assessment of the whole of the evidence, the extradition judge correctly
determined that the evidence did not reveal conduct that would justify
committal. Given the clear wording of s. 285, the mother could not be found
guilty on the charge of abduction since her intent was to protect the children
from danger of imminent harm at the hands of their father. No reasonable jury
in Canada, properly instructed, could therefore return a verdict of guilty on
the charge of abduction of the children against the mother in the
circumstances. Committal, as the extradition judge concluded, is therefore not
justified.
Section 44(1) (a) of the Extradition
Act requires the Minister of Justice to consider all the relevant
circumstances in deciding whether surrender would be unjust or oppressive. Even
if one were to accept that the requirements for double criminality have been
met, this does not relieve the Minister of his responsibility to consider that
a statutory defence that goes to the very heart of the offence is available in
Canada and not in Georgia. Such a consideration falls squarely within the
Minister’s statutory safety valve function at the surrender stage and is
therefore a necessary consideration when discretion is exercised under s.
44(1) (a).
So too are the best interests of
the children. In her submissions to the Minister, the mother noted that the
children fled from their abusive father and would face serious risks of harm if
they were returned to him. The father left the children to take care of
themselves most of the time and was physically and mentally abusive. This abuse
was the reason the children ran away from the home, leading them to live in an
abandoned house for over a week before contacting the mother. If the children
were forced back to the United States or separated from her, they would either
suffer additional abuse or face the absence of any parental figure.
It is contrary to the best
interests of the children to extradite the mother. There is no dispute that the
children should not be returned to their abusive father. To surrender the
mother for her conduct in protecting the children is to penalize them for
reaching out to her by depriving them of the only parent who can look after
them. Moreover, because the defence of rescuing children to protect them from
imminent harm does not exist in Georgia, the mother will not be able to raise
the defence she would have been able to raise had she been prosecuted in Canada.
If extradited, the mother could
face up to 15 years imprisonment if convicted of the interference with custody
charges. Yet the Minister makes no reference to the impact of the mother’s
surrender on the family. Instead, he observed that the availability of foster
care adequately compensates for the mother’s potential imprisonment in Georgia.
This represents an inexplicable rejection of the cornerstone of this country’s
child welfare philosophy, namely, to attempt whenever reasonably possible to
keep children and parents together. The Minister expressed uncertainty as to
the children’s best interests. This ought to have led him to err on the side of
the children’s right to be with a loving parent, not on the side of
surrendering the mother to face a criminal process where a key defence would be
unavailable.
In light of all the instability and trauma the children have experienced,
it is obvious that what would be least harmful for them would be to remain in
Canada with the mother who put herself in legal jeopardy to protect them,
instead of being relegated to foster care. What the Minister considered instead was the mother’s
conduct three years prior to the incident in question, which led to her losing
custody and access. This history should not be denied, but neither is it of any
particular relevance in considering what she did in responding to the children’s
desperate request, or to what her current relationship was to the children. The
question is not whether she was an ideal parent, but whether her conduct in
coming to her children’s rescue should deprive them of her care and deprive her of her
liberty for up to 15 years.
The very charges the mother faces
arose because she acted in what she saw as her children’s best interests. The
evidence before the Minister unequivocally showed that the children fled from
their father’s home because he was abusive and that they eventually contacted
their mother for assistance. She did not remove them from his home. In fact,
the evidence accepted throughout these proceedings is that the children ran
away on their own without either the assistance or knowledge of the mother.
Between returning to the abusive household, remaining in an abandoned home or
reuniting with their mother, the children felt they had no alternative. Rightly
or wrongly, the children believed that taking such measures would be less
harmful to their well-being than remaining in their father’s abusive household.
They cannot be judged for taking desperate measures to escape intolerable
conditions which placed them in harm’s way. The Minister was obliged to take
into serious consideration why the children contacted their mother for
assistance. They had suffered harm. They had no place to go. Reaching out to
their mother was the only realistic alternative for them. And responding to
their pleas for safety was the only realistic alternative for the mother. In
penalizing the mother for coming to the assistance of her children instead of
ignoring their entreaties, the Minister was penalizing her for accepting her
responsibility to protect the children from harm.
The Minister inadequately
considered the children’s best interests, and his conclusions with respect to
the availability of the s. 285 defence rendered his decision to order the
mother’s surrender unreasonable. Limiting his assessment of the mother’s trial
in Georgia to whether it would be procedurally fair instead of whether it would
be unjust or oppressive to extradite her, sidesteps the proper analysis. Given
the liberty interests at stake and the potential for criminal liability in
circumstances that may not attract punishment in Canada, it is not enough to
determine whether the trial in the requesting state will be procedurally fair.
The presence of a statutory defence in Canada going directly to criminality
where no analogous defence is recognized in the requesting state is, on its
face, the very sort of factor that makes surrender unjust or oppressive.
There is little
demonstrable harm to the integrity of Canada’s extradition process in finding
it to be unjust or oppressive to extradite the mother of young children she
rescued, at their request, from their abusive father. The harm, on the other
hand, of depriving the children of their mother in these circumstances is
profound and demonstrably unfair.
Cases Cited
By Cromwell J.
Discussed:
United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77; referred
to: Canada v. Schmidt, [1987] 1 S.C.R. 500; United States v.
Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Sriskandarajah v. United States
of America, 2012 SCC 70, [2012] 3 S.C.R. 609; Canada (Justice) v.
Fischbacher, 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. Shephard, [1977] 2 S.C.R. 1067; Mezzo v. The Queen,
[1986] 1 S.C.R. 802; R. v. Charemski, [1998] 1 S.C.R. 679; United
States of America v. Dynar, [1997] 2 S.C.R. 462; McVey (Re), [1992]
3 S.C.R. 475; R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623; United
States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532; R. v.
Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635; R. v. Russell, 2001 SCC
53, [2001] 2 S.C.R. 804; R. v. Deschamplain, 2004 SCC 76, [2004] 3
S.C.R. 601; Dubois v. The Queen, [1986] 1 S.C.R. 366; United States
of America v. Yang (2001), 56 O.R. (3d) 52; United States of America v.
Graham, 2007 BCCA 345, 243 B.C.A.C. 248; France v. Diab, 2014 ONCA
374, 120 O.R. (3d) 174; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Burke,
[1996] 1 S.C.R. 474; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; United
States of America v. Anderson, 2007 ONCA 84, 85 O.R. (3d) 380; R. v.
Pires, 2005 SCC 66, [2005] 3 S.C.R. 343; United States of America v.
Mach, [2006] O.J. No. 3204 (QL); United States of America v. Edwards,
2011 BCCA 100, 306 B.C.A.C. 160; Scarpitti v. United States of America,
2007 BCCA 498, 247 B.C.A.C. 234; United States of America v. Orphanou,
2011 ONCA 612, 107 O.R. (3d) 365; United States of America v. Ranga,
2012 BCCA 81, 317 B.C.A.C. 207; Canada (Attorney General) v. Bennett,
2014 BCCA 145, 353 B.C.A.C. 311; United States of America v. Aneja, 2014
ONCA 423, 120 O.R. (3d) 620; United States of America v. U.A.S., 2013
BCCA 483, 344 B.C.A.C. 302; Canada (Attorney General) v. Viscomi, 2014
ONCA 879, 329 O.A.C. 47; Canada (Attorney General) v. Hislop, 2009 BCCA
94, 267 B.C.A.C. 155; Singh v. Canada (Attorney General), 2007 BCCA 157,
238 B.C.A.C. 213; Canada (Minister of Justice) v. Gorcyca, 2007 ONCA 76,
220 O.A.C. 35; United States of America v. Lorenz, 2007 BCCA 342, 243
B.C.A.C. 219; Canada (Attorney General) v. Sosa, 2012 ABCA 242, 536 A.R.
61; Canada (Attorney General) v. Aziz, 2013 BCCA 414, 342 B.C.A.C. 305; United
States of America v. Doak, 2015 BCCA 145, 323 C.C.C. (3d) 219; R. v.
Chartrand, [1994] 2 S.C.R. 864; R. v. Dawson, [1996] 3 S.C.R. 783; R.
v. Vokey, 2005 BCCA 498, 217 B.C.A.C. 231; R. v. Flick, 2005 BCCA
499, 217 B.C.A.C. 237; Lake v. Canada (Minister of Justice), 2008 SCC
23, [2008] 1 S.C.R. 761; United States of America v. Johnson (2002), 62
O.R. (3d) 327; R. v. Hibbert, [1995] 2 S.C.R. 973; R. v. Ryan,
2013 SCC 3, [2013] 1 S.C.R. 14; Perka v. The Queen, [1984] 2 S.C.R. 232;
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney
General), 2004 SCC 4, [2004] 1 S.C.R. 76; Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817; Canada (Minister of
Justice) v. Thomson, 2005 CanLII 5078; Ganis v. Canada (Minister of
Justice), 2006 BCCA 543, 233 B.C.A.C. 243; Savu v. Canada (Ministre de
la Justice), 2013 QCCA 554; United States of America v. Thornett,
2014 BCCA 464, 363 B.C.A.C. 311; United States v. Pakulski, 2015 ONCA
539; H. (H.) v. Deputy Prosecutor of the Italian Republic, [2012]
UKSC 25, [2013] 1 A.C. 338; H. v. Lord Advocate, [2012] UKSC 24, [2013]
1 A.C. 413; Adam v. United States of America (2003), 64 O.R. (3d) 268; United
States v. Pakulski, 2014 ONCA 81; United States of America v. Johnstone,
2013 BCCA 2, 333 B.C.A.C. 107; United States of America v. Fong (2005), 193
C.C.C. (3d) 533.
By Abella J. (dissenting)
United
States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77; Kindler v.
Canada (Minister of Justice), [1991] 2 S.C.R. 779; United States of
America v. Lépine, [1994] 1 S.C.R. 286; Canada (Justice) v. Fischbacher,
2009 SCC 46, [2009] 3 S.C.R. 170; Washington (State of) v. Johnson,
[1988] 1 S.C.R. 327; McVey (Re), [1992] 3 S.C.R. 475; Winnipeg Child
and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R. 519; Thomson
v. Thomson, [1994] 3 S.C.R. 551; Pollastro v. Pollastro (1999), 43
O.R. (3d) 485; In re D. (Abduction: Rights of Custody), [2006] UKHL 51,
[2007] 1 A.C. 619; United States of America v. Dynar, [1997] 2 S.C.R.
462; R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3; R. v. Ryan,
2013 SCC 3, [2013] 1 S.C.R. 14; Canada v. Schmidt, [1987] 1 S.C.R. 500; Argentina
v. Mellino, [1987] 1 S.C.R. 536; United States v. Allard, [1987] 1
S.C.R. 564; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R.
281; Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3
S.C.R. 609; United States of America v. Kwok, 2001 SCC 18, [2001] 1
S.C.R. 532; Caplin v. Canada (Justice), 2015 SCC 32, [2015] 2 S.C.R. 568;
Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761; United
States of America v. Taylor, 2005 BCCA 440, 216 B.C.A.C. 137; R. v.
Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; Provost v. Canada (Procureur
général), 2015 QCCA 1172; Kunze v. Canada (Minister of Justice),
2005 BCCA 87, 209 B.C.A.C. 32; Canada (Minister of Justice) v. Thomson,
2005 CanLII 5078; Savu v. Canada (Ministre de la Justice), 2013 QCCA
554; United States of America v. Lucero‑Echegoyen, 2013 BCCA 149,
336 B.C.A.C. 188; Canada (Attorney General) v. Aziz, 2013 BCCA 414, 342
B.C.A.C. 305; United States of America v. Doak, 2015 BCCA 145, 323
C.C.C. (3d) 219; Agraira v. Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; A.B. v. Bragg Communications
Inc., 2012 SCC 46, [2012] 2 S.C.R. 567; Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817; United States of
America v. Cotroni, [1989] 1 S.C.R. 1469.
Statutes and Regulations Cited
Act to amend the Criminal Code and the Young Offenders Act, S.C. 1993, c. 45, s. 6.
Act to amend the Criminal Code in relation to sexual offences and
other offences against the person and to amend certain other Acts in relation
thereto or in consequence thereof, S.C. 1980‑81‑82‑83,
c. 125, s. 20.
Canadian Charter of Rights and Freedoms,
ss. 6(1) , 7 , 24(1) .
Constitution Act, 1982 .
Criminal Code, R.S.C. 1985, c. C‑46,
ss. 280 to 283 , 282 , 285 [formerly s. 250.4 ; ad. 1980‑81‑82‑83,
c. 125, s. 20].
Extradition Act, R.S.C. 1985, c. E‑23
[am. 1992, c. 13], s. 13.
Extradition Act, S.C. 1999, c. 18, ss. 3(1) ,
(2) , 15(1) , (3) , 24(2) , 29 , 31 to 37 , 32(1) , 40 , 42 , 43(2) , 44 to 47 .
Immigration Act, R.S.C. 1985, c. I‑2
[repl. 2001, c. 27].
Immigration and Refugee Protection Act,
S.C. 2001, c. 27 .
Immigration Regulations, 1978, SOR/78‑172,
s. 2.1 [ad. SOR/93‑44, s. 2].
O.C.G.A., § 16‑5‑45(c)(1) (2011).
Treaties and Other International Instruments
Convention for the Protection of Human Rights and Fundamental
Freedoms, 213 U.N.T.S. 221 [the European Convention
on Human Rights], art. 8.
Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, art. 13(b).
Convention on the Rights of the Child,
Can. T.S. 1992 No. 3, art. 19.
Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3, arts. 2, 10.
Authors Cited
Canada. House of Commons. House of Commons Debates,
vol. XV, 3rd Sess., 34th Parl., May 6, 1993, p. 19017.
Canada. House of Commons. House of Commons Debates, vol. XVII,
1st Sess., 32nd Parl., August 4, 1982, p. 20040.
Canada. House of Commons. House of Commons Debates, vol. 135,
No. 135, 1st Sess., 36th Parl., October 8, 1998, p. 9006.
Canada. House of Commons. House of Commons Debates, vol. 135,
No. 162, 1st Sess., 36th Parl., November 30, 1998, p. 10591.
Canada. House of Commons. Standing Committee on Justice and Human
Rights. Evidence, No. 096, 1st Sess., 36th Parl., November 4,
1998 (online: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=1039051&Language=E&Mode=1&Parl=36&Ses=1),
16:40.
Canada. Minister of Justice and Attorney General. Information
on Bill C‑127. Ottawa: Department of Justice, 1983.
Canada. Senate. Debates of the Senate, vol. IV, 3rd
Sess., 34th Parl., June 16, 1993, p. 3536.
Goldstein, Joseph, Anna Freud and Albert J. Solnit. Beyond
the Best Interests of the Child, new ed. New York: Free Press, 1979.
La Forest, Anne Warner. La Forest’s Extradition to and
from Canada, 3rd ed. Aurora, Ont.: Canada Law Book, 1991.
Shearer, I. A. Extradition in International Law.
Manchester: Manchester University Press, 1971.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The
Law of Evidence in Canada. Toronto: Butterworths, 1992.
APPEAL
from two judgments of the Quebec Court of Appeal (Thibault, Doyon and Dutil
JJ.A.), 2014 QCCA 681, [2014] AZ‑51061285, [2014] Q.J. No. 2910
(QL), 2014 CarswellQue 3081 (WL Can.), dismissing an application for judicial
review of a surrender order made by the Minister of Justice; and (Morissette,
Gagnon and Gascon JJ.A.), 2012 QCCA 1142, [2012] AZ‑50866680, [2012] Q.J.
No. 5896 (QL), 2012 CarswellQue 6422 (WL Can.), setting aside a decision
of Cohen J., 2011 QCCS 4800, [2011] AZ‑50778075, [2011] Q.J. No. 12453
(QL), 2011 CarswellQue 9861 (WL Can.). Appeal dismissed, Abella, Karakatsanis
and Côté JJ. dissenting.
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.
The judgment of McLachlin
C.J. and Cromwell, Moldaver and Wagner JJ. was delivered by
Cromwell J. —
I.
Introduction
[1]
The extradition process serves two important
objectives: the prompt compliance with Canada’s international obligations to
our extradition partners, and the protection of the rights of the person
sought. The latter objective places important limits on when extradition can be
ordered. The appellant in this case says that these limits should prevent her
extradition to the state of Georgia to face child abduction charges. She claims
that she would have a good defence if prosecuted in Canada, that there is no
comparable defence in Georgia, and that extraditing her would be contrary to
the best interests of her children.
[2]
The first limit on which the appellant relies is
that a person will not be extradited unless a Canadian judge finds that there
is a case to meet against him or her. The appellant maintains that this
requirement is not met here because she has a good defence to the charges and
the evidence against her is weak. But the appellant’s position is based on a
misconception of the extradition judge’s role. Fairness in extradition
requires only that the judge find that there is evidence of conduct that, had
it occurred in Canada, “would justify committal for trial”: Extradition Act,
S.C. 1999, c. 18, s. 29(1) (a). The extradition judge is not to consider
defences or weigh conflicting evidence other than in limited circumstances that
do not exist here. The appellant in effect wants to turn the extradition
process into a trial. But the extradition process is not a trial and, as the
Court said nearly three decades ago, it should never be permitted to become
one: Canada v. Schmidt, [1987] 1 S.C.R. 500, at p. 515.
[3]
The appellant also invokes a second limit. At
the ministerial phase of the extradition process, the Minister of Justice must
not surrender a person for extradition if this would be unjust or oppressive: Extradition
Act, s. 44 . As I will explain, the appellant is right to say that
potential defences and the best interests of her children are relevant to the
Minister’s decision making and can be considered by the Minister. But, in this
case, the Minister’s decision to send the appellant to Georgia for trial was
reasonable, notwithstanding the appellant’s arguments.
[4]
It will become obvious that I take a markedly
different view than my colleague Abella J. of both the content of the record
and of the governing legal principles. As I see it, my colleague’s reasons
propose to turn extradition hearings into trials. But the implications of that
approach compellingly demonstrate why this should not be done.
II.
Facts and Issues
[5]
The appellant is the mother of three children, a
boy and two girls who were respectively 18, 15 and 13 at the time this appeal
was heard. The family was living in Georgia when the parents separated and
divorced. The Georgia courts awarded the father sole custody of the three
children in June 2008. The appellant was given no visitation rights and was
permitted no further contact with the children.
[6]
In October 2010, the father reported the
children missing. That December, Georgia police located the appellant and her
children in a battered women’s shelter in Quebec. She was arrested and
initially denied bail pending her committal hearing. In February 2011, the
U.S., on behalf of Georgia, sought her extradition to face prosecution in Georgia
for interstate interference with custody. Later that same month, the Minister
of Justice issued an Authority to Proceed (“ATP”) with extradition, listing the
corresponding Canadian offences of abduction in contravention of a custody
order (s. 282(1) of the Criminal Code, R.S.C. 1985, c. C-46 ) and
abduction of a person under 16 (s. 280(1) of the Criminal Code ). The
children were placed in a foster family following a judgment from the Court of
Québec: Protection de la jeunesse — 113190, 2011 QCCQ 11853 (Lise
Gagnon J.C.Q., May 26, 2011).
[7]
In an oral decision rendered June 8, 2011 (with
written reasons dated June 20), the Quebec Superior Court granted the appellant
bail pending her committal hearing and, in an oral decision on July 8, 2011
(with written reasons dated August 10), dismissed the application for committal
for extradition: 2011 QCCS 4800. On June 15, 2012, the Quebec Court of Appeal
set aside the Superior Court’s order of discharge and ordered the appellant’s
committal for extradition: 2012 QCCA 1142. On November 28, 2012, the Minister
of Justice ordered the appellant’s surrender for extradition and, on April 4,
2014, the Court of Appeal dismissed the appellant’s application for judicial
review of the Minister’s decision: 2014 QCCA 681. The most recent information
that we have about the children is that the Minister understood that they had
been returned to the appellant’s care in June 2011 following her release on
bail.
[8]
The appellant appeals both the committal and the
surrender orders.
III.
Analysis
A.
Introduction
[9]
The appellant raises issues with respect to both
the committal process and the surrender process. With respect to committal,
the appellant submits that the Court of Appeal took too narrow a view of the
extradition judge’s role at the committal hearing. Her submissions revolve
around two main questions:
(1)
Should the extradition judge consider evidence about possible defences
and other exculpating circumstances in deciding whether to commit for
extradition?
(2)
Applying the appropriate legal test for committal, did the evidence
justify committal?
[10]
These two questions relate to some of the
fundamental principles of extradition law. The first concerns the double
criminality requirement of extradition — that the conduct alleged against the
appellant must be criminal had it been committed in Canada. The second concerns
the extradition judge’s role in assessing the weight to be given to the
evidence relied on to support committal. This latter question was the subject
of the Court’s decision in United States of America v. Ferras, 2006 SCC
33, [2006] 2 S.C.R. 77, which has received varied treatment by our appellate
courts. This appeal provides an opportunity to clarify and further develop the
law in relation to the committal process.
[11]
With respect to the Minister’s surrender
decision, the appellant raises two main issues concerning the question of
whether the Minister’s decision was unreasonable:
(1)
Did the Minister fail to give appropriate consideration to the fact that
a defence potentially available to the appellant under Canadian law is not
available under the law of the requesting state?
(2)
Did the Minister fail to give appropriate consideration to the effect of
extradition on the best interests of the appellant’s children?
[12]
These issues relate to the Minister’s obligation
to refuse surrender where extradition would be “unjust or oppressive” (Extradition
Act, s. 44(1) (a)) or where extradition would unjustifiably limit the
rights under the Canadian Charter of Rights and Freedoms of the person
sought for extradition. They also raise questions about how the committal and
surrender phases of the extradition process relate to each other.
[13]
Before turning to my analysis of these issues,
it will be helpful to put them in the context of the purposes and scheme of our
extradition law.
B.
Fundamental Principles of Extradition Law
(1)
Introduction
[14]
Extradition law starts with a basic principle:
while a person is in a country, he or she is subject to that country’s criminal
law and should expect to be answerable to it (United States v. Burns,
2001 SCC 7, [2001] 1 S.C.R. 283, at para. 72). Extradition is the process by
which one state assists another in putting that principle into practice. The Extradition
Act implements, through domestic law, Canada’s international obligations to
surrender persons found here so that they will face prosecution, or serve
sentences imposed, in another country (I will limit my brief review here to
extraditions which are sought for prosecution). Of course, Canada’s
international obligations to surrender for extradition are subject to various
conditions.
[15]
Extradition serves 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 do not serve as a means of escape from the rule of law
(Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3
S.C.R. 609, at para. 10). To achieve these pressing and substantial objectives,
our extradition process is founded on the principles of “reciprocity, comity and respect for
differences in other jurisdictions”: Canada
(Justice) v. Fischbacher, 2009 SCC 46, [2009] 3
S.C.R. 170, at para. 51, per Charron J. for a majority of the Court, quoting Kindler v. Canada (Minister of Justice), [1991] 2
S.C.R. 779, at p. 844, per McLachlin J. (as she then was). These principles
“are foundational to the effective operation of the extradition process” (Fischbacher, at para. 51) and mandate the prompt
execution of Canada’s international obligations.
[16]
That said, the rights and interests of persons
sought for extradition must be protected. This requires a careful balancing of
the broader purposes of extradition with those individual rights and interests.
Extradition is a three-phase process and, at each stage, concern to balance
these interests is apparent. Also underlying all three phases is the broad
principle of double criminality, that is, the principle that Canada should not extradite
a person to face punishment in another country for conduct that would not be
criminal in Canada.
[17]
This broad principle of double criminality is
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”. This
broad principle, however, is given more precise meaning and is applied in more
precise ways by other provisions of the Extradition 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.
[18]
At the first two phases of the extradition
process, the Extradition Act addresses double criminality in express
statutory terms. At the third, 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 .
(2)
The First Phase: the Authority to Proceed (‟ATPˮ)
[19]
The first phase of the extradition process
relates to receipt of an extradition request from a foreign state and the
decision of the Minister of Justice whether to proceed with it by issuing an
ATP. The Minister’s role is to satisfy him- or herself that two basic
requirements for extradition are met. The first is that, subject to any
relevant extradition agreement, the offence for which extradition is sought is
punishable in the requesting state for a maximum term of two years or more or
by a more severe punishment: ss. 15(1) and 3(1) (a) of the Extradition
Act . The second is to identify the Canadian offence or offences that would
make the alleged conduct criminal in Canada. The Extradition Act directs
that it is not relevant that the alleged conduct under foreign law “is named,
defined or characterized . . . in the same way as it is in Canada”: s. 3(2) .
[20]
At this stage in the process, the Minister is
concerned in part with the foreign law aspect of the double criminality
principle: he or she must be satisfied, among other things, that the offence
for which extradition is sought is criminal in the requesting state. The
Minister is also concerned with aspects of domestic criminal law because he or
she must identify the corresponding Canadian offences: s. 15(3) (c) of
the Extradition Act ; Fischbacher, at para. 27.
[21]
In this case, the requesting state sought
extradition for the Georgia offence of interstate interference with custody, in
violation of § 16-5-45(c)(1) of the Official Code of Georgia Annotated.
The Minister issued an ATP stating that the Canadian offences which correspond
to the alleged conduct are abduction in contravention of a custody order (s.
282(1) of the Criminal Code ) and abduction of a person under 16 (s.
280(1) of the Criminal Code ).
(3)
The Second Phase: Judicial Committal or
Discharge
[22]
If, as here, the Minister issues an ATP, the
extradition moves to the committal phase. This phase plays an important,
although carefully circumscribed, role in protecting the rights of the person
sought. That role is defined by s. 29(1) (a) and (3) of the Extradition
Act . The extradition judge is to determine two things: (1) whether “there
is evidence admissible under this Act of conduct that, had it occurred in
Canada, would justify committal for trial in Canada on the offence set out in
the authority to proceed”; and (2) “that the person [before the court] is the
person sought by the extradition partner” (s. 29(1) (a)). Committal is
ordered if the judge finds that these conditions exist; if not, the person must
be discharged: s. 29(1) (a) and (3) . This means that the requesting state
must show that it has evidence available for trial that would justify committal
for trial in Canada for the Canadian offences specified in the ATP.
[23]
It is important to understand that s. 29(1)(a)
codifies and defines the role of the extradition judge with respect to the
double criminality principle. That role is not defined by the broad principle
of double criminality enunciated in s. 3(1) (b). Rather, s. 29(1)(a)
is a specific provision which addresses and exhaustively defines the
extradition judge’s role. In my respectful view, the failure to recognize this
is a fatal flaw in the appellant’s position in relation to the role of the
extradition judge.
[24]
The appellant submits that the role of the
extradition judge must be conceived of much more broadly than the role of the
preliminary inquiry justice. As discussed below, I must reject this submission.
(4)
The Third Phase: Ministerial Surrender or
Refusal to Surrender for Extradition
[25]
If the extradition judge orders committal, the
case moves back to the Minister to exercise the power under s. 40 of the Extradition
Act to surrender or to refuse to surrender the person sought. This phase of
the process, while of course subject to the requirements of the statute and the
Charter , is essentially political in nature. In carrying out his or her
duties, the Minister must take into account Canada’s international obligations
and the requirement to act as a responsible 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 to 47 . The
provision relevant to this appeal provides that the Minister must refuse
surrender if “the surrender would be unjust or oppressive having regard to all
the relevant circumstances”: s. 44(1) (a). The jurisprudence holds that
the Minister must also refuse surrender where the consequences of surrender
would be contrary to the principles of fundamental justice under s. 7 of the Charter
or, in the case of a Canadian citizen, be an unjustified infringement of the
right to remain in Canada guaranteed by s. 6(1) of the Charter . In
exercising this power, the Minister must consider, when relevant, the best
interests of children who are or may be affected by the extradition and whether
there is a significant difference in jeopardy between domestic and foreign law.
With respect to this latter consideration, the rationale of the broad principle
of double criminality may inform the Minister’s exercise of this authority to
refuse surrender if there are defences available in Canada that are not
available in the requesting state.
C.
Appeal From Committal for Extradition
(1)
Issues and Overview
[27]
The committal appeal raises two main issues:
(1)
Should the extradition judge consider evidence about possible defences
and other exculpating circumstances in deciding whether to commit for
extradition?
(2)
Applying the appropriate legal test for committal, did the evidence
justify committal?
[28]
As I will explain, my view is that the
extradition judge applied incorrect principles in relation to the double
criminality requirement and her role in assessing the reliability of the
evidence before her. She also erred, in my respectful view, in concluding that
the evidence in the certified record of the case (“ROC”) was insufficient to
require committal. The Court of Appeal was correct to set aside the appellant’s
discharge and to order her committal for extradition.
(2)
First Issue: Exculpatory Evidence and Defences
at the Committal Stage
(a)
Decisions and Submissions
(i)
Extradition Judge
[29]
In opposing committal, the appellant sought
admission of a great deal of evidence to show that she had not abducted the
children but that they had run away from their father, at whose hands they
suffered physical and mental abuse, and that the appellant harboured the
children for their protection. Despite counsel for the requesting state’s
opposition, the extradition judge admitted most of the evidence, holding that
it was relevant and sufficiently reliable to be admissible.
[30]
The extradition judge then considered whether
the requesting state’s evidence justified committal for trial in Canada for the
offences of abduction of a person under 16 and abduction in contravention of a
custody order (ss. 280(1) and 282(1) of the Criminal Code ). She refused
committal on both.
[31]
With respect to s. 280(1) , the extradition judge
found that the evidence showed that the appellant had not taken the children
from their father but that they had run away. With respect to s. 282(1) , the
extradition judge found that there was no evidence that the appellant had
harboured the children with the specific intent of depriving their father of
custody. She came to this conclusion essentially by relying on the defence
found at s. 285 of the Criminal Code , which reads:
285. [Defence] No one shall be found guilty of an offence under sections
280 to 283 if the court is satisfied that the taking, enticing away,
concealing, detaining, receiving or harbouring of any young person was
necessary to protect the young person from danger of imminent harm or if the
person charged with the offence was escaping from danger of imminent harm.
[32]
The extradition judge held that this defence
could be considered at the committal stage of extradition proceedings because
double criminality requires the extradition judge to proceed to a meaningful
judicial assessment of all of the evidence based on Canadian law. Relying on s.
285 , and in light of the evidence adduced by the appellant, the extradition
judge ruled that “no reasonable jury could draw the inference, as submitted by
the Requesting State, that the mother’s intent was to deprive the father of
possession of these children”: para. 75 (CanLII). Moreover, the evidence showed
that the appellant’s conduct would not be criminal if it had occurred in
Canada.
(ii)
Court of Appeal
[33]
The Quebec Court of Appeal found that the
evidence that the children had run away on their own and that the appellant
harboured the children to protect them from future harm was exculpatory in
nature. It was aimed at contradicting the ROC and laying the ground for a
potential defence of the respondent. By taking such matters into consideration,
the judge went beyond the proper role of an extradition judge as defined by Ferras.
(iii)
Submissions
[34]
The appellant submits that the Court of Appeal
took too narrow a view of the extradition judge’s role and of the inquiry
mandated by Ferras. In line with this reasoning, the intervener
British Columbia Civil Liberties Association submits that an extradition judge
must inquire as to the existence of exculpatory defences. Both the text of the Extradition
Act and the expanded role of the extradition judge set out in Ferras mandate
this broader inquiry which is also consistent with international law.
[35]
The respondent opposes this line of reasoning,
noting that the Court has repeatedly emphasized the limited scope of the
extradition judge’s role. Extradition hearings are not trials and extradition
judges are not to consider and weigh evidence pertaining to defences. The extradition
judge, by virtue of s. 29(1) of the Extradition Act , is concerned solely
with determining whether there is sufficient evidence to justify committal.
That determination does not involve looking at potential defences, and Ferras
did not hold otherwise.
(b)
Analysis
(i)
Scope of the Extradition Judge’s Role
[36]
The committal phase of the extradition process
serves an important, but circumscribed and limited screening function. The role
of the extradition judge is simply to decide whether he or she is satisfied
that the person before the court is the person sought and whether “there is
evidence admissible under [the Extradition Act and available for trial]
of conduct that, had it occurred in Canada, would justify committal for
trial in Canada on the offence set out in the authority to proceed”: s.
29(1) (a) of the Extradition Act ; see also Ferras, at para.
50.
[37]
The reference to evidence that “would justify
committal for trial in Canada” in s. 29(1) (a) of the Extradition Act
incorporates the test that a justice conducting a preliminary inquiry must
apply when deciding whether to commit an accused for trial in Canada: see,
e.g., Skogman v. The Queen, [1984] 2 S.C.R. 93; R. v. Arcuri,
2001 SCC 54, [2001] 2 S.C.R. 828. This is also the test that applies to whether
a trial judge should order a directed verdict of acquittal at the end of the
Crown’s case: see e.g., United States of America v. Shephard, [1977] 2
S.C.R. 1067; Mezzo v. The Queen, [1986] 1 S.C.R. 802; R. v. Charemski,
[1998] 1 S.C.R. 679.
[38]
Thus, the language of s. 29(1) (a) links
the role of the extradition judge in relation to double criminality to the test
for committal (and directed verdicts). The incorporation of the test for
committal to trial is meant to make the extradition process efficient,
permitting prompt compliance with Canada’s international obligations, while
also ensuring that there is at least a prima facie case against the
person of a Canadian crime: see, e.g., United States of America v. Dynar,
[1997] 2 S.C.R. 462, at paras. 121‑22; Ferras, at para.
21. The extradition judge’s role is to determine whether there is a prima
facie case of a Canadian crime, not to become embroiled in questions about
possible defences or the likelihood of conviction. Extradition hearings are not
trials; they are intended to be “expeditious procedures to determine whether a
trial should be held”: Dynar, at para. 122, quoting McVey (Re),
[1992] 3 S.C.R. 475, at p. 551.
[39]
However, the role of the extradition judge at
the committal phase has evolved as a result of amendments to other aspects of
the Extradition Act and the requirements of the Charter . The
result is that while the test for committal for trial continues to apply in
extradition, the role of the extradition judge in applying that test differs in
two respects from the preliminary inquiry context.
[40]
The first difference is that the extradition
judge, unlike the preliminary inquiry justice, may grant Charter
remedies that pertain directly to the circumscribed issues relevant to
committal: see, e.g., R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623; United
States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532. The second is
that the extradition judge, unlike the preliminary inquiry justice, must engage
in a limited weighing of the evidence to determine whether there is a plausible
case. Thus, where the evidence is so defective or appears so unreliable that
the judge concludes it would be dangerous or unsafe to convict, then the case
is considered insufficient for committal: Ferras, at para. 54. This
ensures that the extradition process does not “deprive the person sought of the
independent hearing and evaluation required by the principles of fundamental
justice applicable to extradition”: Ferras, at para. 40; see also paras.
47‑49.
[41]
The appellant’s position is that the extradition
judge is entitled to assess exculpatory evidence including evidence of
necessity. It is clear that the preliminary inquiry justice cannot do so in the
context of committal to trial and there can be little serious doubt that the change
proposed by the appellant would constitute a significant alteration of
long-settled principles about the nature of the extradition process. Therefore,
the question of principle underlying the appellant’s position is whether we
should further differentiate between the two roles by expanding the role of the
extradition judge.
[42]
In my view, we should not take this step. The
changes in the role of the extradition judge which occurred in Kwok and Ferras
were based on legislative changes to the Extradition Act . Both decisions
were clear that the basic principles governing extradition remained the same
despite these amendments. In this case, there is no legislative or other
development that supports the fundamental change proposed by the appellant.
[43]
In order to explain why I have reached this
conclusion, it will be helpful to explore in more detail the role of the
preliminary inquiry justice in relation to committal for trial. By virtue of s.
29 of the Extradition Act , that is also the framework that governs the
role of the extradition judge. We must then consider how and why that role has
changed before turning to evaluate the appellant’s submissions.
(ii)
The Test for Committal to Trial
[44]
The role the appellant proposes for the
extradition judge has no parallel with that of the preliminary inquiry
justice. A preliminary inquiry justice could not refuse to commit for trial on
the basis of the sort of exculpatory evidence relied on by the appellant.
[45]
The test for committal for trial is whether
there is any admissible evidence that could, if believed, result in a
conviction: Shephard, at p. 1080; Arcuri, at para. 21. Where the
evidence is circumstantial, the judge must conduct a limited weighing of the
circumstantial evidence to assess whether, in light of all of the evidence
including any defence evidence, it is reasonably capable of supporting the
inferences that the Crown asks to be drawn: Arcuri, at para. 23.
[46]
The preliminary inquiry justice is concerned
only with the essential elements of the offence and any other conditions on
which the prosecution bears the evidential burden of proof: Arcuri, at
para. 29; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 16; R.
v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 24. The
justice has no role to play with respect to matters on which the accused bears
an evidential (or persuasive) burden. The rule was perhaps most clearly stated
in a directed verdict case to which the same rule applies: there must be a
committal for trial if there is “some evidence of culpability for every
essential definitional element of the crime for which the Crown has the
evidential burden” (Charemski, at para. 3 (emphasis in original), per
Bastarache J. for a majority of the Court, referring to J. Sopinka, S. N.
Lederman and A. W. Bryant, The Law of Evidence in Canada (1992), at p.
136). While the accused is entitled to present evidence by way of defence, the
preliminary inquiry justice cannot weigh the merits of that evidence in
reaching his or her decision as to whether to commit for trial: Hynes,
at para. 52, per Major J., dissenting. Thus, where the Crown has
adduced direct evidence on all the elements of the offence, the justice must
commit even if the defence proffers exculpatory evidence: Sazant, at
para. 16.
[47]
Nor is the preliminary inquiry justice to assess
the quality, credibility or reliability of the evidence, with the exception of
the limited weighing to assess whether the inferences which the Crown seeks to
be drawn from circumstantial evidence are reasonable as contemplated in Arcuri:
R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 15. So,
for example, it is a jurisdictional error for the justice to refuse to commit
because, in the judge’s view, the identification evidence did not establish
identification beyond a reasonable doubt: Dubois v. The Queen, [1986] 1
S.C.R. 366, at pp. 378-79.
[48]
In light of these principles, a preliminary
inquiry justice could not refuse to commit the appellant on the basis of the
evidence on which she relies. The justice could not consider evidence of
necessity because there is no evidentiary burden on the Crown with respect to
those circumstances. Under s. 285 of the Criminal Code , the Crown does
not have to make out a prima facie case of the absence of circumstances
of necessity in order to have an accused committed for trial under ss. 280(1)
and 282(1) of the Criminal Code . As for other exculpatory evidence, the
preliminary inquiry justice could not assess its quality, credibility or
reliability or rely on it to justify discharging an accused.
(iii)
The Role of the Extradition Judge Before Kwok
and Ferras
[49]
Before Kwok and Ferras, the
role of the extradition judge in deciding whether to commit closely resembled
that of the preliminary inquiry justice. Thus, as in the case of committal for
trial, the extradition judge had no discretion to refuse to extradite if there
were any evidence supporting each of the elements of the offence alleged: Shephard,
at p. 1080. An extradition judge had no jurisdiction to deal with defences
unless the governing extradition treaty provided otherwise: Schmidt, at
p. 515. Like the preliminary inquiry justice, the extradition judge (before the
legislative amendments in 1992, as discussed in greater detail below) had no Charter
jurisdiction. In short, the test for committal for extradition was tied closely
to the test for committal for trial and, like the preliminary inquiry justice,
the extradition judge had no role to play with respect to matters that were not
part of the Crown’s prima facie case.
[50]
This link to the test for committal was stated
explicitly in Schmidt: the purpose of the extradition hearing is to
determine “whether there is such evidence of the crime alleged to have been
committed in the foreign country as would, according to the law of Canada,
justify his or her committal for trial if it had been committed here” (p. 515).
More recently, the Court affirmed this link in Fischbacher: “The
[extradition] judge must consider the evidence in light of Canadian law and
determine whether it reveals conduct that would justify committal for the crime
listed in the ATP if it had occurred in Canada” (para. 35).
[51]
Extradition judges also distinguished between
sufficiency of evidence — which was their concern — and reliability, which was
not. So, for example, material that “is so bereft of detail, such as the
witness’ means of knowledge, that the judge cannot determine its sufficiency”
would not justify committal: United States of America v. Yang (2001), 56
O.R. (3d) 52 (C.A.), at para. 63. Two examples given by the Court of Appeal in Yang
are instructive. The first concerned a statement that police suspected the
person sought of committing the offence. The court noted that without any basis
being disclosed for this suspicion, that statement would not be sufficient to
permit committal: para. 63. The second example concerned admissible hearsay
evidence containing direct evidence of guilt. This, the court stated, would be
sufficient for committal because the judge’s function does not include
assessing the reliability of that evidence: para. 64.
[52]
The broad principle of double criminality and
its underlying rationale are of fundamental importance to our extradition
process, and as I have explained, they operate in specific ways at each of the
three stages of our extradition process. However, at the committal stage, the
extradition judge’s role with respect to double criminality has been given
specific legislative expression in the test for committal under s. 29 of the Extradition
Act . This provision gives precise statutory definition to the role of the
extradition judge with respect to double criminality. It is s. 29 that
delineates the judge’s role in determining whether the evidence meets the
domestic component of double criminality and directly links that role to the
test for committal at trial: Fischbacher, at para. 35. That test, as I
have explained, does not permit the judge to consider aspects of the criminal
conduct on which the accused bears an evidential burden: see, e.g., Fischbacher,
at para. 52; Schmidt, at p. 515.
[53]
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”: Ferras, at para. 21 (emphasis added). It bears repeating
that defences and other matters on which the accused bears an evidential burden
of proof play no part in deciding whether the Crown’s case is sufficient to put
the person on trial.
(iv)
Changes to the Role of the Extradition Judge: Kwok
and Ferras
[54]
Kwok and Ferras
created significant differences between how the preliminary inquiry justice
and the extradition judge apply the same legal test for committal. It is
helpful in considering the new approach advocated by the appellant to examine
briefly these differences, which, in my view, do not assist the appellant.
1.
Charter Jurisdiction: Kwok
[55]
Before 1992, the extradition judge had no Charter
jurisdiction. The decision to commit was reviewable by way of habeas corpus
and the judge conducting that review had authority to apply the Charter
to issues relevant to the committal decision: see Kwok, at paras.
4 and 35. The Extradition Act, R.S.C. 1985, c. E-23, was amended in 1992
(S.C. 1992, c. 13) so that the functions previously exercised by the
extradition judge and the judge on review by means of habeas corpus were
combined in the extradition judge: Kwok, at para. 39. In
addition, the amended legislation specified that a superior court judge sitting
as an extradition judge had, for the purposes of the Constitution Act, 1982 ,
the same competence otherwise possessed by a superior court judge. The Court in
Kwok held that the effect of these changes was to permit “the
extradition judge to exercise the jurisdiction previously reserved for the habeas
corpus judge, which includes remedies for the Charter breaches that
pertain directly to the circumscribed issues relevant at the committal stage of
the extradition process”: para. 57.
[56]
This change does not assist the appellant and
the appellant does not suggest that it does. The Court noted that the decision
in Kwok “leaves the powers and functions of the committal court
substantially unchanged”: para. 57.
2.
Ferras: Limited Weighing
[57]
Ferras decided
that the extradition judge’s role with respect to weighing evidence must be
somewhat enlarged compared to that of the preliminary inquiry justice. This
change was spurred by legislative amendment (i.e., the Extradition Act,
S.C. 1999, c. 18 ) as well as by the different demands of s. 7 of the Charter
in the extradition, as opposed to the preliminary inquiry, context.
[58]
The legislative changes considered in Ferras
related to what evidence could be admitted at the committal stage and the
definition of the extradition judge’s role in the Extradition Act currently
in force. With respect to evidence, the Extradition Act now provides for
evidence to be admitted, even if not otherwise admissible under Canadian law,
if contained in the certified ROC: s. 32(1) (a). With respect to the role
of the extradition judge, the text of the previous Extradition Act had
“cemented the analogy” between the role of the extradition judge and the role
of a preliminary inquiry justice: Ferras, at para. 48. It directed the
extradition judge to “hear the case, in the same manner, as nearly as may be,
as if the fugitive was brought before a justice of the peace, charged with an
indictable offence committed in Canada”: s. 13 . The 1999 amendments to the Extradition
Act modified this direction so that it simply provided the extradition
judge with the same powers as a preliminary inquiry justice, “with any
modifications that the circumstances require”: s. 24(2) ; see Ferras, at
para. 48. This weakened the strength of the analogy between the two roles.
[59]
The Court also noted some differences between
the committal hearing and a preliminary inquiry that brought different Charter
considerations into play. First, evidence at a preliminary inquiry is admitted
according to Canadian rules of evidence and brings with it the “inherent
guarantees of threshold reliability” required by those rules: Ferras, at
para. 48. Evidence at an extradition hearing, however, by virtue of the
expanded rules of admissibility noted in the previous paragraph, “may lack the
threshold guarantees of reliability afforded by Canadian rules of evidence”: ibid.
Second, as discussed earlier, the extradition judge, unlike the preliminary
inquiry justice, has the authority to grant Charter remedies. Thus,
while the extradition hearing and the preliminary inquiry are both pre-trial
screening devices and both use the same test of sufficiency of evidence for
committal, the Court found that these differences made it “inappropriate to
equate the task of the extradition judge with the task of a judge on a
preliminary inquiry”: ibid.
[60]
The analysis in Ferras of these differences
led the Court to modify the role of the extradition judge. This adjustment was
also prompted by the combination of the limited role of the extradition judge
as set out in Shephard and the evidentiary provisions of the 1999 Extradition
Act which “effectively removed much of an extradition judge’s former
discretion to not admit evidence”: Ferras, at para. 41. The Court
concluded that denying an extradition judge’s discretion to refuse committal
for reasons of insufficient evidence would “violate a person’s right to a
judicial hearing by an independent and impartial magistrate — a right implicit
in s. 7 of the Charter where liberty is at stake”: para. 49. In light of
this, the Court found that the test for committal under s. 29(1) of the Extradition
Act granted the extradition judge discretion to refuse extradition on the
basis of insufficient evidence: for example, where the reliability of the
evidence certified was successfully impeached or where there was no evidence
that the evidence was available (para. 50). This was a significant change from
the jurisprudence before Ferras, which, as noted above, restricted the
extradition judge’s inquiry to the sufficiency of the evidence.
(v)
The Extradition Judge’s Role After Ferras
[61]
Ferras acknowledged
both the importance and the limits of the committal process. It ensures that
the person will not be extradited unless the requesting state makes out a
prima facie case: see, e.g., Dynar, at para. 119. But this “modest
screening device . . . is structured around the fundamental concept that the
actual trial takes place in the requesting state”: Yang, at para. 47;
see also Ferras, at para. 48. Fairness in this context does not require
a trial, but simply that there is sufficient evidence to justify putting the
person on trial: Ferras, at para. 21.
[62]
Ferras did not
envisage any change in the test for committal; there was no challenge to that
statutory test in s. 29 of the Extradition Act which links committal for
extradition to the test for committal for trial. Nor did Ferras envisage
any fundamental change in the nature of the committal process. The Court noted
that the extradition judge’s role is not to determine guilt or innocence or to
engage in the ultimate assessment of reliability: paras. 46 and 54. The
evidence in the ROC is presumed to be reliable and “[u]nless rebutted, this
presumption of reliability will stand and the case will be deemed sufficient to
commit for extradition”: para. 66. In Ferras, the fact that some of the
evidence was hearsay and came from unsavoury witnesses did not rebut this
presumption. The Court underlined the point that “the issue is not whether the
information in the record is actually true”: para. 68. The extradition judge’s
limited weighing goes only to whether there is “a plausible case”: para. 54.
[63]
This means that there continues to be a high
threshold for refusing committal on the basis that the supporting evidence is
unreliable. It is only where the evidence supporting committal is “so defective
or appears so unreliable” or “manifestly unreliable” that it would be
“dangerous or unsafe” to act on it that the extradition judge is justified in
refusing committal on this basis: Ferras, at paras. 54 and 40.
[64]
While the role of the extradition judge in
scrutinizing evidence has been somewhat enhanced to ensure Charter compliance,
it remains the case that an extradition hearing is not a trial and it should
never be permitted to become one: Schmidt, at p. 515. The process is
intended to be expeditious and efficient so as to “ensure prompt compliance
with Canada’s international obligations”: Dynar, at para. 122.
[65]
There is nothing in Ferras, or in the
analysis that underlies it, suggesting any change in the extradition judge’s
statutorily defined role with respect to double criminality. Quite the reverse.
Ferras reiterates that the test remains whether there is evidence that
is sufficient to justify committal had the conduct occurred in Canada: see
para. 46. The preliminary inquiry justice has never had any role to play in
assessing potential defences or excuses or other aspects of the crime on which
the accused bears an evidential (or for that matter, persuasive) burden of
proof. Moreover, the Court since Ferras has affirmed that the test for
committal — and therefore the extradition judge’s role with respect to double
criminality — is whether the evidence “reveals conduct that would justify
committal for the crime listed in the ATP if it had occurred in Canada”: Fischbacher,
at para. 35. In saying this, the Court approved the statement in its earlier
decision in McVey (Re), at p. 528, that the extradition judge “is
concerned with whether the underlying facts of the charge would, prima facie,
have constituted a crime . . . if they had occurred in Canada”: Fischbacher,
at para. 35. All of these affirmations demonstrate that the extradition judge’s
role, like that of the preliminary inquiry justice, is not concerned with
defences or other matters on which the accused bears an evidential or
persuasive burden.
[66]
A fatal flaw in the appellant’s position and,
respectfully, in the reasoning of my colleague Abella J. is to take Ferras
as fundamentally changing the statutory test for committal. It did not. Ferras’s
insistence on a meaningful judicial determination by the extradition judge
speaks only to the rigour that an extradition judge must bring to the
assessment of the evidence. Ferras did not — indeed could not — change
by judicial decree the statutory requirement that the requesting state has only
to show that the record would justify committal for trial in Canada. The
committal for trial process has never been concerned with possible defences on
which the accused bears an evidential or persuasive burden and Ferras
provides no support for any fundamental change to this statutory test for
committal.
[67]
Some appellate case law since Ferras has
held that it may be helpful to speak of the test for committal in terms of the
test for appellate review of whether a verdict after trial is reasonable: see,
e.g., United States of America v. Graham, 2007 BCCA 345, 243 B.C.A.C. 248,
at paras. 31-32. Respectfully, however, I am not convinced that this is a
helpful way to think about whether the evidence justifies committal: see, e.g.,
France v. Diab, 2014 ONCA 374, 120 O.R. (3d) 174, at para. 139.
[68]
The scope of review for an unreasonable verdict
is retrospective in nature. The appellate court examines the full trial record,
sometimes supplemented by fresh evidence. The appellate court is not limited,
as is the extradition judge, to the evidence of a bare prima facie case,
presented in the ROC. The scope of review is also in some respects broader than
the review for committal. The reviewing court is entitled to consider whether
findings of credibility are supported on any reasonable view of the evidence,
to intervene based on the bizarre nature of the evidence or the possibility of
collusion and, in the case of a trial by judge alone, to assess reasonableness
in light of the trial judge’s reasons for conviction: see, e.g., R. v. Yebes,
[1987] 2 S.C.R. 168, at p. 186; R. v. Burke, [1996] 1 S.C.R. 474, at
paras. 7 and 53; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at
paras. 37 and 41. These bases of intervention have no parallel in the context
of committal for extradition.
[69]
I respectfully conclude that it is not helpful
to draw the analogy between the role of the extradition judge and that of an
appellate court in determining whether a verdict after trial is unreasonable.
[70]
In general, courts of appeal have interpreted Ferras
as requiring a restrained view of the role of the extradition judge in
assessing the reliability of evidence. That is the correct approach.
[71]
In particular, I largely agree with the
interpretation of Ferras given by Doherty J.A. writing for the court in United
States of America v. Anderson, 2007 ONCA 84, 85 O.R. (3d) 380, at paras.
28-31. Ferras “does not envision weighing competing inferences that may
arise from the evidence”, other than in the limited sense noted in Arcuri
of considering that the inferences sought to be drawn from circumstantial evidence
are reasonable: Anderson, at para. 28. Ferras does not
contemplate that the extradition judge will decide whether a witness is
credible or his or her evidence is reliable beyond determining that the
evidence is not “so defective” or “so unreliable” that it should not be given
any weight: Anderson, at para. 30. Ferras does not call upon the
extradition judge to evaluate the relative strength of the case put forward by
the requesting state. There is no power to deny extradition simply because the
case appears to the extradition judge to be weak or unlikely to succeed at
trial. Ferras requires the extradition judge, however, to remove
evidence from consideration that appears to the judge to be “so defective” or
“so unreliable” that it should be disregarded. This may be the result of
problems inherent in the evidence itself, problems that undermine the
credibility or reliability of the source of the evidence, or a combination of
those two factors.
[72]
I also agree with Doherty J.A. that “it is only
where the concerns with respect to the reliability of the evidence, whatever
the source or sources, are sufficiently powerful to justify the complete
rejection of the evidence, that these concerns become germane to the s. 29(1) (a)
inquiry”: Anderson, at para. 30. The extradition judge’s starting point
is that the certified evidence is presumptively reliable: see Ferras, at
paras. 52-56. This presumption may only be rebutted by evidence showing
“fundamental inadequacies or frailties in the material relied on by the requesting
state”: Anderson, at para. 31.
(vi)
A Word About Process
[73]
In Ferras and its companion appeals, the
persons sought did not adduce evidence directed to the unreliability of the
information contained in the ROC. Ferras, therefore, did not have to
consider in detail the practical issues that arise when the person sought seeks
to adduce evidence for the purpose of undermining the reliability of the
requesting state’s evidence. However, Ferras and other jurisprudence
provide helpful guidance on those questions.
[74]
The starting point is that the person sought may
adduce evidence if it is “relevant to the tests set out in subsection 29(1) if
the judge considers it reliable”: Extradition Act, s. 32(1) (c).
Thus, there are two requirements for evidence to be admissible under this
provision: reliability and relevance.
[75]
The reliability requirement means that the
evidence must possess “sufficient indicia of reliability to make it worth
consideration by the judge at the hearing”: Ferras, at para. 53.
This “threshold reliability” requirement is not an onerous standard. It imposes
“no greater evidentiary hurdle to the person sought” than the evidentiary
requirements governing the requesting state: ibid.
[76]
However — and this is a key point — the
relevance requirement is linked directly to the test for committal under s. 29
of the Extradition Act . 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. (This relevance
requirement is the same whether the evidence is otherwise admissible under
Canadian law or not.) 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.
[77]
A significant procedural point follows from
this, as I see it. 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. To paraphrase Charron J. in R. v. Pires, 2005
SCC 66, [2005] 3 S.C.R. 343, at para. 31, there is no point in permitting the
evidence if there is no reasonable likelihood that it will impact on the
question of committal: see also United States of America v. Mach, [2006]
O.J. No. 3204 (QL) (S.C.J.); Anderson, at paras. 37-46; United States
of America v. Edwards, 2011 BCCA 100, 306 B.C.A.C. 160, at paras. 31-35.
[78]
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.
[79]
I recognize that the extradition judge has a
limited discretion exceptionally to admit evidence that is not, strictly
speaking, relevant to the committal inquiry but will be relevant to the
Minister’s task at the surrender stage of the proceedings. As recognized in Kwok,
this may, in exceptional cases, be an efficient and expedient approach, fully
recognizing that the extradition judge has no role in deciding the merits of
the issue: paras. 6 and 74. Nothing that I have said is intended to eliminate
this exceptional, discretionary power of the extradition judge.
[80]
It will be helpful to give some examples of
evidence that may or may not meet the high threshold justifying a refusal of
committal on the basis of unreliability of the evidence.
(vii) Some Examples
[81]
Appellate courts have held, and in my view
correctly, that some types of evidence are either irrelevant or not
sufficiently cogent to be capable of allowing the person sought to successfully
challenge the reliability of the evidence in the ROC.
[82]
For instance, generally speaking, proposed
evidence that does nothing more than to invite the judge to assess the
credibility of evidence contained in the ROC is not admissible: see, e.g., Scarpitti
v. United States of America, 2007 BCCA 498, 247 B.C.A.C. 234, at
paras. 40-43; United States of America v. Orphanou, 2011 ONCA 612,
107 O.R. (3d) 365, at paras. 33-39; United States of America v. Ranga,
2012 BCCA 81, 317 B.C.A.C. 207, at paras. 33-37; Canada (Attorney
General) v. Bennett, 2014 BCCA 145, 353 B.C.A.C. 311, at para. 24; United
States of America v. Aneja, 2014 ONCA 423, 120 O.R. (3d) 620, at
paras. 31-46; United States of America v. U.A.S., 2013 BCCA 483,
344 B.C.A.C. 302, at para. 38. It is generally not appropriate for the
extradition judge to evaluate the credibility of witness evidence in relation
to the facts of the alleged offence because such an inquiry “invites a
comparison and weighing of alternatives that goes beyond the limited role of an
extradition judge”: Bennett, at para. 24.
[83]
Courts have also held that, generally speaking,
evidence which establishes a basis for competing inferences of guilt or
innocence is inadmissible at the committal hearing. Evidence of that nature
generally cannot rebut the presumed reliability of the ROC or show that
inferences relied on by the requesting state are unreasonable: Canada
(Attorney General) v. Viscomi, 2014 ONCA 879, 329 O.A.C. 47, at
paras. 16-20; Canada (Attorney General) v. Hislop, 2009 BCCA 94,
267 B.C.A.C. 155, at para. 31; Anderson, at para. 28. As
mentioned earlier, the test for committal does not require that guilt be the
only possible inference that can be drawn from the evidence; it need only be a
reasonable inference. The fact that evidence — either contained in the ROC or
adduced by the person sought — can support inferences consistent with the
innocence of the person sought is not relevant to the test for committal. Just
as with the ultimate determination of credibility, the choice between competing
inferences — provided the one relied on by the requesting state is reasonable —
“is ultimately a decision for the fact finder at trial,
not for the extradition judge”: Hislop, at para. 31.
[84]
Similarly, evidence that establishes a defence
or attempts to establish a different or exculpatory account of events will
generally be inadmissible as it does not affect the reliability of the
requesting state’s evidence: Singh v. Canada (Attorney General), 2007
BCCA 157, 238 B.C.A.C. 213, at para. 56; Canada (Minister of Justice)
v. Gorcyca, 2007 ONCA 76, 220 O.A.C. 35, at paras. 15-20; United
States of America v. Lorenz, 2007 BCCA 342, 243 B.C.A.C. 219, at
paras. 46-47; Canada (Attorney General) v. Sosa, 2012 ABCA 242, 536
A.R. 61, at para. 20; Canada (Attorney General) v. Aziz, 2013 BCCA
414, 342 B.C.A.C. 305, at para. 36; United States of America v. Doak,
2015 BCCA 145, 323 C.C.C. (3d) 219, at paras. 51-56. Extradition judges
should generally decline to consider different or innocent accounts of events
as it requires an assessment of the evidence’s ultimate reliability, which is
within the realm of the trier of fact: see Doak, at para. 55. It is
for the foreign court to assume this role, not the extradition judge.
[85]
This is not to say that courts must always
reject evidence which (1) invites the judge to assess credibility, (2)
establishes a basis for competing inferences, or (3) provides for an
exculpatory account of events. 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 could
rebut the presumption of its reliability and could justify refusal to commit.
Such situations I would expect to be very rare.
(c)
Application
[86]
As I have explained, there is nothing in Ferras
to suggest that the extradition judge has a role to play with respect to
defences on which the accused bears a burden of proof, including the excuse of
qualified necessity set out in s. 285 of the Criminal Code . Ferras reiterates
that the test remains whether there is evidence that is sufficient to justify
committal for trial, as set out in s. 29 of the Extradition Act . That
statutory direction is inconsistent with the consideration of defences because
they (and other matters on which the accused has an evidential burden) have
never formed part of the test for committal to trial in the preliminary inquiry
context. Moreover, any scope for considering defences would undermine the
limited burden of the requesting state to provide evidence of a prima facie
case. And, from a practical standpoint, considering defences would
fundamentally change the nature of the extradition hearing, making it more akin
to a trial. Ferras, as we have seen, did not mandate any such
fundamental re-imagining of the committal process; it simply enhanced the
extradition judge’s authority to engage in limited weighing of the evidence in
applying the test for committal under s. 29 of the Extradition Act .
[87]
Similarly, there is nothing in Ferras to
support the contention that the extradition judge should generally weigh
exculpatory evidence. Rather, Ferras holds that any weighing must only
be in the context of deciding whether the evidence undermines the presumed
reliability of the requesting state’s evidence to the point that it should be
discarded.
[88]
Finally on this point, Ferras does not
mandate, or even provide any support for, the change the appellant wants to the
role of the extradition judge with respect to double criminality.
[89]
The extradition judge, respectfully, erred in
law in weighing and relying on evidence of defences and other exculpatory
circumstances. She gave no weight to the presumption of reliability of the ROC,
accepted some accounts given by some of the children in relation to the facts
of the offences and weighed the evidence and, having done so, rejected the
evidence in the ROC.
[90]
The extradition judge also erred in law in
relation to the requirements for a prima facie case and the elements of
the necessity defence.
[91]
With respect to s. 280(1) of the Criminal
Code (abduction of a person under 16), the extradition judge found that “a ‘meaningful
judicial assessment’ of all of the evidence . . . indicates clearly that the
children left of their own volition, and that they were not taken out of the
father’s possession by anyone, and certainly not by [the appellant]”: para. 61,
quoting Ferras, at para. 25. She found that “all of the evidence” indicates
that the three children ran away from their father’s residence and that their
elder sister drove them to Canada: para. 62. Respectfully, these conclusions
are wrong in law and in fact.
[92]
First, the law. Depriving parents of the
“possession” (s. 280(1) of the Criminal Code ) of their children is not
limited to circumstances in which the parents were in physical control of the
children at the time of the taking. The essence of the offence is not a
physical taking of the child, but interference with the parent’s exercise of
his or her right of control over the child: see, e.g., R. v. Chartrand,
[1994] 2 S.C.R. 864; R. v. Dawson, [1996] 3 S.C.R. 783; R. v. Vokey,
2005 BCCA 498, 217 B.C.A.C. 231; R. v. Flick, 2005 BCCA 499, 217
B.C.A.C. 237. Contrary to what the extradition judge assumed, in order to be
found guilty of taking the children out of the lawful possession of their
father, the prosecution would not have to establish that the appellant
physically took the children.
[93]
As for the facts, the extradition judge failed
to recognize that there was conflicting evidence adduced on behalf of the
appellant concerning how the children came to be with her in Canada. There was
evidence supporting the version of events that the extradition judge adopted.
There was also evidence, however, supporting the proposition that the appellant
had taken the children to Canada precisely for the purpose of keeping them away
from their father. The extradition judge admitted a Youth Court judgment dated
May 26, 2011, which indicated that at the end of November 2010, “[t]he children
. . . left Georgia with their mother and moved to Canada”: para. 49, quoting
the Youth Court judgment, at para. 10. The extradition judge also admitted a
report by Quebec’s Director of Youth Protection (“DYP”) from January 2011. The
oldest child is reported to have told the DYP that they “left Georgia with
their mother and moved to Canada”: A.R., vol. III, at p. 98. The middle child
said that they stayed with friends or family “until their departure for Canada
with their mother”: ibid., at p. 99. The appellant herself told the DYP
that “this is not the first time” that she has taken the children without
authorization and that she “took her children to Canada with no regards to the
interdiction of contact . . . . [s]he is aware that her actions were illegal”: ibid.,
at p. 101. The record before the extradition judge could not reasonably be
thought to meet the threshold of showing either that the evidence in the ROC
was so unreliable that it should be discarded or that the inferences relied on
by the requesting state were unreasonable.
[94]
With respect to s. 282(1) of the Criminal
Code (abduction in contravention of a custody order), the extradition judge
found that the appellant could not be found guilty in Canada of this offence
because she would be entitled to the qualified defence of necessity under s.
285 of the Criminal Code . Again, the extradition judge erred both in law
and in fact.
[95]
With respect to the law, it was not part of the
extradition judge’s role to consider whether there might be valid defences to
the Canadian offences. In order to obtain a committal for trial, the
prosecution does not have to negate defences, such as the excuse set out in s.
285 , on which the accused bears the evidential burden. As for the facts, the
extradition judge did not consider that s. 285 requires that there be danger of
imminent harm either to the children or to the appellant. There was evidence of
neither.
(d)
Conclusion
[96]
The extradition judge exceeded her role by failing
to give weight to the presumption of reliability of the 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.
(3)
Second Issue: Was the Evidence in the ROC
Sufficient to Justify Committal?
(a)
Decisions and Submissions
[97]
The extradition judge found that the ROC, taken
at face value, was not sufficient to justify committal for either offence. She
found that it did not provide “any evidence whatsoever” of two of the essential
elements of the offence of the abduction of a person under the age of 16 (s.
280(1) of the Criminal Code ): para. 61. There was no evidence that the
appellant took the children or that she did so out of the possession of and
against the will of their father. With respect to the offence relating to
abduction in contravention of a custody order (s. 282(1) of the Criminal
Code ), the extradition judge found that the ROC contained “no evidence
whatsoever” that the appellant had received or harboured the children with the
specific intent of depriving their father of possession: para. 67.
[98]
The Court of Appeal disagreed with both of these
conclusions and held that the ROC supported reasonable inferences of the
existence of all of the essential elements of the Canadian offences. The
extradition judge erred, the court held, by evaluating the relative strength of
the case and by assessing witness credibility rather than deciding whether
there was some evidence available for trial that was not manifestly unreliable
on every essential element of the parallel Canadian crime.
[99]
The appellant submits that the Court of Appeal
was wrong to overrule the extradition judge. I disagree.
(b)
Analysis
[100]
As the Court of Appeal found, the ROC supported
committal. The ROC stated that the children, while in the sole custody of their
father, were reported by him as missing on October 30, 2010 and that he had
given no authority for anyone to take the children. They were found by a
Georgia police officer in Gordon County, Georgia, in a car driven by the
appellant on November 9, 2010, even though there was a court order that she
could have no contact with them. The ROC further stated that the children were
still missing in the middle of December 2010 and that they were tracked to a
women’s shelter using the internet service provider logins of the two oldest
children. The three missing children and the appellant were found in the
shelter. This circumstantial evidence and the reasonable inferences that could
be drawn from it were sufficient to conclude that a reasonable jury properly
instructed could return a verdict of guilt regarding the abduction of a person
under 16 offence (s. 280(1) of the Criminal Code ): Court of Appeal
judgment, at para. 15 (CanLII).
[101]
The ROC permitted reasonable inferences that the
appellant had taken the children out of the possession of and against the will
of the parent who had lawful care or charge of them, as is prohibited by s.
280(1) of the Criminal Code . Similarly, the ROC established that the
appellant was aware that the father had full custody and that she did not have
the right to be in contact with the children. Again, this is sufficient to
support a reasonable inference that the appellant had abducted the children in
violation of a custody order with the intent to deprive the father of their
possession contrary to s. 282(1) of the Criminal Code .
[102]
As the Court of Appeal found, by setting aside
the circumstantial evidence offered by the requesting state and the reasonable
inferences that could be drawn from it, the extradition judge went beyond the
limited weighing of the evidence allowed by Ferras. The Court of Appeal
rightly intervened.
[103]
I would dismiss the appeal relating to the
committal order.
D.
Appeal From the Surrender Decision
(1)
Introduction and Issues
[104]
The issues here concern judicial review of the
Minister’s decision to surrender the appellant for extradition. The appellant
says that the Minister’s surrender decision was unreasonable and that the Court
of Appeal was wrong to find otherwise. She makes two main points, one
concerning the apparent absence in Georgia of a defence of necessity to the
abduction charges and the other in relation to the best interests of the
children. The questions at issue raised by the appellant can be stated as
follows:
(1)
Did the Minister fail to give appropriate consideration to the fact that
a defence potentially available to her under Canadian law is not available
under the law of the requesting state?
(2)
Did the Minister fail to give appropriate consideration to the effect of
extradition on the best interests of the appellant’s children?
[105]
The appellant contends that the Minister did not
give adequate consideration to either question and that as a result his
decision is unreasonable. Both of these matters, in her submission, should have
engaged the Minister’s duty to refuse surrender set out in s. 44(1) (a)
of the Extradition Act . It provides that the Minister “shall refuse to
make a surrender order” if he or she is satisfied that “the surrender would be
unjust or oppressive having regard to all the relevant circumstances”.
[106]
There is no dispute that the standard of review
that the Court of Appeal had to apply to the Minister’s decision was
reasonableness. This standard was authoritatively
described in Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1
S.C.R. 761, at para. 41:
To apply this standard in the
extradition context, a court must ask whether the Minister considered the
relevant facts and reached a defensible conclusion based on those facts. . . . If
. . . the Minister has identified the proper test, the conclusion he has
reached in applying that test should be upheld by a reviewing court unless it
is unreasonable. . . . Given the Minister’s expertise and his obligation to
ensure that Canada complies with its international commitments, he is in the
best position to determine whether the factors weigh in favour of or against
extradition. [Emphasis added.]
The ultimate question on appeal,
therefore, is whether the Minister’s decision was unreasonable. In my view, it
was not. I will address the necessity defence and best interests of the child
separately, but we must recognize that the Minister was obliged to consider
these matters individually and cumulatively: Fischbacher, at para. 37,
quoting United States of America v. Johnson (2002), 62 O.R. (3d) 327
(C.A.), at para. 45.
(2)
The Decisions Below
(a)
The Minister’s Decision
[107]
The appellant submitted to the Minister that
ordering her surrender would be “unjust or oppressive” because she had a
defence to the charges and that extradition would be contrary to her children’s
best interests. On the first issue, the Minister noted that the Court of Appeal
had determined there was sufficient evidence to order the appellant’s
committal; that it was not his role to question the sufficiency of this
evidence; that defences should be left to the foreign trial court to consider;
and that, although she would be unable to raise a defence of necessity before
the Georgia court, she could raise a defence of coercion. On the second issue,
he concluded that “[t]he best interests of [the appellant’s] children are by no
means clear” (Minister’s decision, at p. 4 (A.R., vol. I, at p. 69)); that the
impact of extradition on the children was unclear; and that there were
important considerations favouring her surrender. Considering these matters
separately and cumulatively alongside a number of other relevant factors, he
determined that the appellant’s surrender would not be unjust or oppressive.
(b)
Quebec Court of Appeal
[108]
The Court of Appeal concluded that the
Minister’s decision was reasonable. He had appropriately considered the
children’s best interests and had carefully analyzed submissions based on the
Superior Court’s findings related to the children’s situation. The decision
contained no reviewable error warranting the court’s intervention.
(3)
First Issue: Defences
(a)
Submissions
[109]
The appellant submits that the Minister’s
decision to surrender is unreasonable because it did not take into
consideration the fact that the defence of necessity, on which the appellant
relies, does not exist in the requesting state. The appellant submits that this
issue is of fundamental importance, and if the defence is not taken into
consideration at the committal stage, then it must necessarily become relevant
at the ministerial stage. While the Minister did mention that the defence of
coercion was available in the requesting state, the appellant contends that
this is irrelevant as it does not take into account the same factors as s. 285
of the Criminal Code .
[110]
The respondent asserts that the Minister was
right in noting that the appellant will receive a fair trial in the requesting
state despite her inability to raise a necessity defence at trial. Moreover,
the Minister was attentive to the appellant’s situation, as he received
information from the U.S. Department of Justice that the appellant would be
able to raise the defence of coercion. The fact that the defences afforded to
the appellant under Canadian and U.S. law are not identical does not make
surrender unjust or oppressive.
(b)
Analysis
(i)
Legal Principles
[111]
The principle of double criminality, as
discussed above, operates at the first two phases of the extradition process.
In deciding whether to issue an ATP, the Minister addresses the foreign component
of double criminality: Fischbacher, at para. 35. The extradition judge,
at the judicial phase, addresses the domestic side of double criminality, to
the extent of deciding whether the evidence “reveals conduct that would justify
committal for the crime listed in the ATP if it had occurred in Canada”: ibid.
[112]
The appellant’s position is that a broad
principle of double criminality also operates at the surrender stage of the
process. This position is developed in greater detail by the intervener Criminal
Lawyers’ Association (Ontario). I agree that the basic concern which underlies
the broad principle of double criminality may also inform the Minister’s
determination of whether extradition would be unjust or oppressive or contrary
to the principles of fundamental justice at the surrender stage of the
extradition process.
[113]
At the surrender stage, the Minister must
determine “whether it is politically appropriate and not fundamentally unjust
for Canada to extradite the person sought”: Fischbacher, at para. 36.
This requires consideration of all the relevant circumstances, both
individually and cumulatively, to determine whether surrender would be unjust
or oppressive: Fischbacher, at para. 37, quoting Johnson, at para. 45. Thus, the Minister engages in a weighing
exercise of all the relevant circumstances that favour surrender versus those
that do not: Fischbacher, at para. 38.
[114]
This is a vitally important role because it
provides an additional safeguard of the rights of the person sought and
addresses matters that may not be properly considered at the two earlier stages
of the extradition process. Thus, while the ATP process and the limited screening function at the judicial phase of the process may, without more,
lead to harsh results, it is for the Minister to decide whether Canada will
comply with the treaty obligation to surrender where matters offend against
public policy: A. W. La Forest, La
Forest’s Extradition to and from Canada (3rd ed. 1991), at p. 70.
[115]
The Court has repeatedly affirmed that the Minister
has a role to play at the surrender stage in assessing the potential
consequences for the person sought of being subjected to the law of the
requesting state. There are circumstances in which “the manner in which the
foreign state will deal with the [person sought] on surrender . . . may be such
that it would violate the principles of fundamental justice to surrender an
accused under those circumstances”: Schmidt, at p. 522. Where surrender
would be contrary to the principles of fundamental justice, it will also be
unjust and oppressive under s. 44(1) (a): see, e.g., Burns, at
para. 68; Lake, at para. 24.
[116]
The Court has also recognized that the
availability of possible defences that fall outside of the scope of the double
criminality inquiry required at the first two phases of the extradition process
can nonetheless be relevant at the third. In Schmidt, the Court decided
that the special pleas of autrefois acquit and res judicata could
not be raised during the judicial phase. The Court added, however, that “the
underlying considerations involved in these pleas” should not be ignored in
considering whether surrender should be refused on the grounds that it would
violate the principles of fundamental justice or be otherwise unjust or
oppressive: pp. 527-28. And most recently, in Fischbacher, the Court
affirmed that a significant discrepancy in jeopardy between Canada and the
requesting state may be a relevant consideration when deciding whether
surrender is unjust or oppressive or contrary to the principles of fundamental
justice:
It is well established that in
exceptional circumstances, the panoply of relevant factors that inform a
surrender decision may include a significant discrepancy between the jeopardy
faced by the person sought in the requesting state and that which he would face
if convicted in Canada in respect of the same conduct . . . . [para. 54]
[117]
Considering defences that are potentially
available in Canada but not in the requesting state is consistent with this
jurisprudence. It is also consistent with both the rationale of the double
criminality principle and with the conduct-based approach to double criminality
adopted by our Extradition Act . The underlying concern is that “an act
shall not be extraditable unless it constitutes a crime according to the laws
of both the requesting and the requested States”: I. A. Shearer, Extradition
in International Law (1971), at p. 137 (emphasis added).
[118]
It follows from this that the Minister 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. This analysis should be done in considering whether
surrender would be unjust or oppressive or otherwise contrary to the principles
of fundamental justice.
[119]
That said, it does not follow that every
difference in the availability of defences or in jeopardy makes extradition
unjust or oppressive or contrary to the principles of fundamental justice.
Rather, the text of s. 44 of the Extradition Act , the underlying
purposes of extradition and the jurisprudence show that it is only where, in
light of all of the circumstances, the consequences of surrender are “simply
unacceptable” that the Minister must intervene: see, e.g., Lake, at
paras. 18 and 31. Section 44 refers to surrender being “unjust or oppressive”,
which is clearly a high test. Moreover, that test must be applied in light of a
“panoply of relevant factors”: Fischbacher, at para. 54. These include
not only the circumstances of the person sought, but the principles of comity
and reciprocity that underlie extradition.
[120]
The assessment must also account for the fact
that the very existence of an extradition arrangement with a foreign country
entails a determination that “the general system for the administration of
justice in the foreign country sufficiently corresponds to our concepts of
justice to warrant entering into the treaty in the first place”: Schmidt,
at p. 523. There is generally speaking nothing unjust in surrendering a
person to face the legal consequences of their acts in the place where they
were committed. Differences in legal systems — even substantial differences —
should not, generally speaking, constitute grounds for refusing surrender. As
La Forest J. wrote for a majority of the Court in Schmidt:
. .
. I see nothing unjust in surrendering to a foreign country a person accused of
having committed a crime there for trial in the ordinary way in accordance with
the system for the administration of justice prevailing in that country simply
because that system is substantially different from ours with different checks
and balances. The judicial process in a foreign country must not be
subjected to finicky evaluations against the rules governing the legal process
in this country. [Emphasis added; p. 522.]
[121]
It follows, in my view, that before the
unavailability of a defence could engage the threshold for refusal under s.
44(1) (a) of the Extradition Act or be considered contrary to the
principles of fundamental justice, the person sought must show three things. If
this threshold is met, the Minister must, of course, weigh this along with all
other relevant considerations in reaching a decision. The elements of the
threshold are these.
[122]
First, it must be clear that there is, in fact,
a difference in the respective laws of the requested and requesting state so
that the defence is available in Canada but no comparable defence is available
in the requesting state. The difference must be one of substance and not
merely a matter of different labels or slight variations in the way the defence
is defined. If the threshold is met, the nature of the defence will also be
part of the overall weighing in the final decision making. For example, the
Canadian defence of duress goes to the moral involuntariness of the accused’s
conduct and the complete absence of any similar defence may be seen as at odds
with a foundational principle of Canadian penal policy.
[123]
Second, there must be a reasonable prospect of
success were the defence to be raised if the accused were tried for the same
conduct in Canada. Once again, if the threshold is met, the apparent strength
of the defence will also be considered in the overall weighing of the relevant
considerations.
[124]
Finally, the difference between the laws of the
two countries must lead to a significantly greater jeopardy for the person
sought in the requesting state. This is assessed by considering the potential
disparity in criminal consequences for the requested person that would flow
from the unavailability of the defence.
[125]
Consider some possible scenarios as
illustrations. The relevant defence might be a partial defence to murder in
Canada, but there may be little or no difference between the potential
sentences for manslaughter in Canada and for murder in the requested state. If
this is so, the unavailability of the partial defence will not result in a
significantly greater jeopardy. For example, provocation in Canada is a partial
defence, reducing what would otherwise be murder to manslaughter. A requesting
state may not recognize the partial defence of provocation, but may take the
circumstances of provocation into account in sentencing. As a result, in this
scenario, the unavailability of the partial defence might well be given less
weight. Another scenario is that the unavailable defence is a full defence to
the crime, thereby making the difference between conviction and acquittal.
Returning to the example of duress, it is under Canadian law a full defence based
on the moral involuntariness of the accused’s conduct. The absence of any
comparable defence in the requesting state would result in significantly
greater jeopardy.
[126]
If these three elements are present, then the
Minister is required to weigh the potential difference in defences along with
all the other relevant considerations in making his or her surrender decision.
Particularly where the defence appears strong and its unavailability under the
law of the requesting state is at odds with Canadian penal policy, this factor
will generally be given significant weight. The onus of persuasion remains on
the person sought. The Minister’s ultimate conclusion will be treated with
deference on judicial review.
(ii)
Application
[127]
The Minister’s reasons for ordering surrender do
not meaningfully engage with the appellant’s arguments as advanced in this
Court. This is explained by the fact that the focus of the appellant’s
submissions to the Minister in relation to the qualified defence of necessity
under s. 285 of the Criminal Code were entirely different from what has
been advanced before us. The appellant’s position on this point to the Minister
was simply that she had such a strong defence to the charges under Canadian law
that it would be unjust and oppressive to put her on trial in Georgia. The
appellant’s written submissions to the Minister focused exclusively on the conditions specified in s. 285 and how they applied to the facts of
her case. There was no mention
of the absence of an equivalent defence in Georgia.
[128]
Responding to this
position, the Minister correctly noted that the Court
of Appeal had determined there was sufficient evidence to order the appellant’s
committal and that it was not his role to question the sufficiency of the
evidence for committal. He also referred to a body of jurisprudence indicating that he should not
entertain defences, as they should be left for the foreign court to consider:
see, e.g., Singh. These considerations provide a
reasonable basis for the Minister not to refuse surrender on the ground that
the appellant claimed to have a good defence under Canadian law.
[129]
It seems that the Minister went on to raise on his own motion the question of Georgia law in
relation to the appellant’s possible defence of qualified necessity. I do not
say this in any way critically; it was of course appropriate for the Minister
to raise this question. The Minister caused inquiries to be made with the Office of International Affairs of the
U.S. Department of Justice concerning the possible defences that the appellant
may raise at her trial and the likely sentences she would face, if convicted.
He ultimately received information that the appellant would not be able to
raise a defence of necessity, but that she could raise the defence of coercion
before the trial court in Georgia. This information was included in the
Minister’s decision. Beyond this, we know nothing about the differences between
Georgia law and Canadian law. In particular, we know nothing about the
differences, if any, between the Georgia defence of coercion and the qualified
defence of necessity under s. 285 of the Criminal Code .
[130]
The question, therefore, is whether the
Minister’s decision is unreasonable because he did not go on to consider
further the possible differences in defences. In my view, the Minister’s
decision was not unreasonable because the appellant did not meet any of the
three threshold requirements described above which could engage the Minister’s
power to refuse surrender under s. 44(1) (a).
[131]
First, the appellant did not show that there is
any difference in substance between the law in Canada and in Georgia. We know
nothing about the alleged differences, if any, between the Canadian offences
and the Georgia offences and nothing about the differences, if any, between the
types of defences available in each jurisdiction. Given that we know nothing
about the elements of the Georgia offence of “interstate interference with
custody” beyond the fact that the Minister identified ss. 280(1) and 282(1) of
the Criminal Code as being the corresponding Canadian offences, we
cannot assume that Georgia law provides for no lawful excuse that might include
the appellant’s conduct in the circumstances that she alleges it occurred. And
we certainly know nothing about the Georgia law of “coercion”.
[132]
We do know that under our own criminal law, the
excuses of duress — often referred to as coercion — and necessity are closely
related. As the Court said in R. v. Hibbert, [1995] 2 S.C.R. 973, at
para. 54, “the similarities between the two defences are so great that
consistency and logic require that they be understood as based on the same
juristic principles”. Both are excuses based on the idea of normative
involuntariness: R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14, at para.
17, citing Hibbert, at para. 54; see also Perka v. The Queen,
[1984] 2 S.C.R. 232. Given the close relationship between the two excuses under
our own law and the fact that the U.S. authorities advised the Minister that
the appellant could rely on a defence of coercion at her trial in Georgia, I
see no reason simply to assume that there is a significant substantive
difference between the two. The appellant asserts that “[t]he availability of the defence of duress in Georgia is irrelevant
as it does not take into account the same factors as s. 285 of the Criminal
Code ”: A.F., at para. 55. However, there is no basis in the record for this
assertion, and the appellant’s contention is nothing more than speculation.
[133]
In short, the record contains nothing to support
the assertion that there is no defence in Georgia comparable to the statutory
necessity defence under our Criminal Code . All we know is that the
Minister was advised that the appellant “will not be able to raise a defence
that it was necessary to remove her children to protect them from danger of
imminent harm [but that she] may raise the defence of coercion before the trial
court in Georgia”: Minister’s decision, at p. 6.
[134]
Second, the material in the record, considered
as a whole, does not show a reasonable prospect of success on the Canadian
qualified defence of necessity if the appellant were tried for the alleged
conduct in Canada.
[135]
This Court has not pronounced on the precise
ambit of the qualified defence of necessity provided for in s. 285 of the Criminal
Code . However, that section is clear that the defence is available only if
the “taking, enticing away, concealing, detaining, receiving or harbouring of
any young person” was necessary either to protect the young person from danger
of “imminent harm” or if the person charged was escaping from the danger of
“imminent harm”. The material before the Minister did not provide any basis to
think that either of these imminent harm requirements was present here.
[136]
The appellant’s position before the extradition
judge was that she had not abducted the children but had joined them in Canada
after they had fled here on their own. While in my respectful view the
extradition judge should not have got into this issue as she did, she found
that “all of the evidence indicates that the three children ran away from their
father’s residence at the end of October 2010 without consulting their mother
and without her knowledge, and that they stayed alternately in an abandoned
house or with friends, with assistance from their 29-year-old elder sister O.,
who drove them to Canada”: para. 62. While the extradition judge’s decision had
been reversed by the Court of Appeal, her purported factual findings provided
no basis to think that the children were at imminent risk of harm when the
appellant, according to this version of her position, intervened and still less
that the appellant was escaping from danger of imminent harm.
[137]
The appellant’s position on the facts changed
dramatically in her submissions to the Minister. In those submissions, she
submitted that “when she fled to Canada with the children in November
[2010], [she] felt that she didn’t have a choice, as the children begged her to
take care of them and help them to run away from the danger that the
custody of their father represents to them. . . . In taking her children to
Canada, she was saving them from an imminent danger of physical and mental
abuse by their father”: A.R., vol. III, at pp. 111-12 (emphasis added). Given
the appellant’s very different position on the facts before the extradition
judge, these contentions could not reasonably be thought to be entitled to much
weight.
[138]
Third, the appellant failed to show that she
faced significantly greater jeopardy in Georgia than in Canada.
[139]
I conclude that the appellant’s submissions to
the Minister in relation to possible Canadian defences to the charges,
considered in light of all of the material, could not reasonably be thought to
meet the requirements that could engage the threshold for refusal under s.
44(1) (a) of the Extradition Act or on the basis that the
surrender would be contrary to the principles of fundamental justice.
[140]
In reaching this conclusion, I have considered
that the detailed framework which I propose in my reasons was not available to
the appellant when making her submissions to the Minister. However, as I have
noted, the focus of her submissions to the Minister was on the availability of
a defence in Canada, not on the absence of a comparable defence in Georgia. In
essence, the appellant asks us to find the Minister’s decision to be
unreasonable on the basis of a point which was not raised directly with him.
The appellant did so while pointing to nothing beyond speculation to support
the contention now advanced. In these circumstances, applying the framework to
the appellant’s submissions is not procedurally unfair to her and the
development of this framework provides no basis for ordering reconsideration by
the Minister.
(4)
Second Issue: Best Interests of the Children
(a)
Submissions
[141]
The appellant contends that the Minister did not
properly consider the effect of extradition on the best interests of her
children, which she says require her to stay in Canada. She contends that the
Minister did not give sufficient weight to the fact that if the appellant is
extradited, the children will be placed in foster care without any relatives
caring for them. She submits that since obtaining full custody of her children
in Canada, she has been an exemplary mother, and that her extradition would
break up their family — facts that the Minister did not acknowledge or to which
he gave insufficient weight. The appellant says her actions saved her children
from their abusive father and that it would shock the conscience of Canadians
to order her surrender for extradition in circumstances where she had to choose
between saving her children and retaining her freedom.
[142]
The respondent’s position is that the Minister
appropriately considered the children’s best interests, which he found to be
unclear. His treatment of this factor in his decision is consistent with
Canadian appellate jurisprudence, international instruments, foreign
jurisprudence, and his duty to take into consideration all relevant
circumstances when making his surrender decision.
(b)
Analysis
Legal Principles
[143]
The legal question underpinning the appellant’s
position concerns the role the best interests of children should play in the
Minister’s decision with respect to surrender for extradition.
[144]
The respondent 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.
[145]
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: Fischbacher,
at paras. 37-38. As the Court said in Canadian Foundation for Children,
Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R.
76, “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”: paras. 10-11.
[146]
Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, is the leading
authority from this Court concerning the obligation to give serious
consideration to the best interests of children when exercising discretionary
powers that may affect them. In Baker, the Court considered the
role of the children’s interests in ministerial decisions on humanitarian and
compassionate (“H & C”) applications under the Immigration Act, R.S.C.
1985, c. I-2 (now the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 ). The Minister was authorized to exempt people from certain requirements
and to facilitate their admission to Canada “owing to the existence of
compassionate or humanitarian considerations”: Immigration Regulations, 1978,
SOR/78-172, s. 2.1 (added by SOR/93-44, s. 2). As the Court noted, “the H &
C decision is one that provides for an exemption from regulations or
from the Act, [and] in practice, it is one that, in cases like this one,
determines whether a person who has been in Canada but does not have status can
stay in the country”: Baker, at para. 15. In other words, the Minister
has broad discretion to exempt persons on H & C grounds in a context in
which his or her decision “affects in a fundamental manner the future of
individuals’ lives” and “may also have an important impact on the lives of any
Canadian children of the person . . . since they may be separated from one of
their parents and/or uprooted from their country of citizenship, where they
have settled and have connections”: ibid.
[147]
To reach its conclusion on the role of the best
interests of the child, the Court took into account this broad grant of
discretion regarding H & C applications as well as the purposes of the Immigration
Act, the ministerial guidelines for making H & C decisions, and
relevant international instruments. It held that “for the exercise of the
discretion to fall within the standard of reasonableness, the decision-maker
should consider children’s best interests as an important factor, give them
substantial weight, and be alert, alive and sensitive to them”: Baker,
at para. 75. The best interests of the child will not always outweigh other
considerations. But, in Ms. Baker’s case, “failure to give serious weight and
consideration to the interests of the children constitute[d] an unreasonable
exercise of the discretion”: para. 65.
[148]
As in Baker, international instruments
touching on the rights of children inform the role the best interests of the
child should play in the Minister’s surrender decision. For example, the values
and principles underlying the international Convention on the Rights of the
Child, Can. T.S. 1992 No. 3, and other instruments recognize the
importance of being attentive to children’s interests and rights when making
decisions that affect their future: Baker, at para. 71. I accept
that in the context of s. 44(1) (a), such instruments weigh in favour of
requiring the Minister to give careful consideration to the best interests of a
child who may or will be impacted by an individual’s extradition.
[149]
However, Baker also calls for an
examination of the nature of the statutory power and the purpose of the
legislative scheme when considering the impact of the best interests of the
child on the exercise of statutory authority. When we do that here, we see that
the Minister must consider the best interests of children who may or will be
affected by surrender for extradition when the material before him or her shows
that this is a relevant concern. However, the Minister must do so in light of
all of the circumstances, including the realities of the impact on children of
the criminal processes under domestic law and the importance of complying with
Canada’s international obligations to its extradition partners.
[150]
Unlike the H & C process, extradition
directly concerns important bilateral international obligations to extradition
partners and ultimately the viability of international mutual assistance in
criminal matters. The Minister, in considering whether to surrender such a
person for extradition, “must take into account the requirements of good faith
and honour of Canada in responding to the request under an extradition treaty
and must weigh the political and international relations ramifications of the
decision whether or not to surrender”: Németh, at para. 64.
[151]
Moreover, the criminal law context of
extradition differentiates it from H & C discretion in the immigration
context. Under Canadian domestic law, parents sometimes go to jail. They are
denied bail before trial and sentenced to imprisonment upon conviction where
the demands of criminal justice require it. And this is so even when
incarceration has serious, negative effects on the individual’s children. Given
this reality of domestic criminal justice, it follows that the consequences of
having to face criminal charges cannot in themselves be unjust or oppressive:
see, e.g., Canada (Minister of Justice) v. Thomson, 2005 CanLII 5078
(Ont. C.A.), at para. 7.
[152]
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. This is confirmed by Canadian
appellate authority on the point. So, for example, the British Columbia Court
of Appeal spoke of the need for the person sought to “meet a high threshold to
warrant a s. 44(1) (a) refusal by the Minister”: Ganis v. Canada (Minister of
Justice), 2006 BCCA 543, 233 B.C.A.C. 243, at para. 31. Likewise, the Quebec Court of Appeal stated that [translation] “[t]he consequences for the
applicant’s children cannot prevent his surrender unless they cause it to be
unjust or oppressive, to shock the conscience or simply to be unacceptable”: Savu
v. Canada (Ministre de la Justice), 2013 QCCA 554, at para. 99
(CanLII). See also United States of America v. Thornett, 2014 BCCA 464,
363 B.C.A.C. 311, at para. 38, and United States v. Pakulski, 2015 ONCA
539, at paras. 8-9 (CanLII).
[153]
The international authorities to which we have
been referred confirm this view. So, for example, the Supreme Court of the
United Kingdom upheld the extradition of parents even in the face of an impact
on children that was considered to be “heart-rending”: H. (H.) v. Deputy
Prosecutor of the Italian Republic, [2012] UKSC 25, [2013] 1 A.C. 338. And
this result was reached in the context of a requirement that extradition be
consistent with the guaranty of a right to respect of the fugitive’s family
life in art. 8 of the European Convention on Human Rights, 213 U.N.T.S.
221, which provides that “[e]veryone has the right to respect for his private
and family life”. Similarly, in H. v. Lord Advocate, [2012] UKSC 24,
[2013] 1 A.C. 413, the demands of the interests of criminal justice and of
treaty obligations that favoured extradition ultimately outweighed the
children’s best interests: para. 58. The Supreme Court in these cases also
thoroughly reviewed the jurisprudence of the European Court of Human Rights
concerning the interaction of art. 8 and extradition. That court has
“repeatedly said that it will only be in exceptional circumstances that an
applicant’s private or family life in a contracting state will outweigh the
legitimate aim pursued by his or her extradition”: H., at para. 59; see
also H. (H.), at paras. 113-14.
[154]
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.
(c) Application
[155]
In this case, the Minister was required to
consider the best interests of the children in making his surrender decision.
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. In my view, these key conclusions were reasonable and they led to
a reasonable decision to surrender the appellant.
[156]
I turn first to the best interests of the
children and the Minister’s comment that they were unclear. On the material
before him this was not only a reasonable conclusion, but an understatement. On
any reasonable view of the record, what would be best for these children was
anything but clear given their unhappy, unstable and complicated family history
and the apparent problems of both parents.
[157]
The Minister noted a number of salient points
from the record to support his conclusion. Because of the appellant’s chronic
substance abuse problems, the Georgia courts had awarded the father sole
custody and had denied the appellant visitation rights. According to the ROC,
she had been arrested for driving under the influence while her children were
in the car. On May 26, 2011, the children had been placed in foster care. From
the time of the appellant’s arrest on December 23, 2010 through to June 8,
2011, the children were not in the care of either parent, but the Minister
understood that they were returned to the appellant’s care on June 8, 2011. I
note that it is unclear what the source of this information is. So far as I am
able to tell, there was nothing before the Minister and nothing in the record
before us providing any further information about the children’s welfare or the
appellant’s parenting abilities after the children were returned to her care.
[158]
A review of further information in the record
suggests that the Minister reasonably assessed it in reaching his conclusion
that the children’s best interests were unclear. From the ROC, it appears that
the appellant and the children’s father were divorced in 2001 with the
appellant being awarded sole custody and the father visitation rights. In
November 2005, the father was given temporary custody; the children apparently
were removed from the appellant’s care because of her chronic substance abuse
problems. She was found to have absconded from the jurisdiction with the
children in violation of a court order in December 2007; an arrest warrant was
issued for her in January 2008; she was convicted of interference with custody
in August 2008 and sentenced to 12 months of probation; and she violated her
probation by leaving the jurisdiction without permission.
[159]
It also appears that for some period of time
between 2004 and 2008, the children were placed in foster care because neither
parent could care for them. The Georgia court found that the father had been
the sole provider for the children since November 2005 and as of June 2008 he was
considered to be fit and capable of providing for them. The appellant was said
not to have provided any support for the children since their removal from her
home in 2005. The ROC also reveals that at the time she was alleged to have
been arrested for driving under the influence while her children were
passengers — an allegation to which the Minister referred in his decision — she
was still subject to a non-contact order. After the children and the appellant
arrived in Canada in late 2010, they lived in a shelter. The DYP indicated that
during this period the appellant was found with marijuana in her purse,
although she denied that it was hers. Following the appellant’s arrest and
detention in December 2010 in connection with the extradition proceedings, the
children were placed in foster care. When the foster care placement was extended
in May 2011, the Court of Québec observed that the appellant’s past “clearly
shows she has been capable of contravening Court orders before and jeopardizing
the children’s stability”: para. 21 (CanLII).
[160]
The record also contains disquieting information
about the father. There were allegations of physical abuse and neglect and
indications that he was not pursuing with any vigour the children’s return to
him. In May 2011, the Court of Québec found that the claims of physical abuse
by the father had to be taken seriously and that the authorities in Georgia
could not confirm that the children would be safe from abuse there: para. 15.
[161]
All of this information in the record, taken
together with the facts to which the Minister referred in his decision, supports
the view that he reasonably concluded the children’s best interests were
unclear.
[162]
With respect to the impact of the appellant’s
extradition on the children, the Minister noted that the children “were
returned to [the appellant’s] care” in June 2011, but nothing suggested to him that
the children would be returned to their father’s care if their mother were
surrendered: Minister’s decision, at p. 4. Rather, the DYP would determine
whether the children should be placed in the care of a responsible family
member or, if necessary, in foster care. This assessment must be considered in
light of the fact that there was nothing in the material about whether the
appellant would be incarcerated pending her trial in Georgia or what impact her
pending criminal charges could have on her relationship with the children.
There was no evidence about other possible family placements either in Canada
or in the United States.
[163]
Before this Court, the appellant submits that
since obtaining “full custody of her children in Canada . . . [she] has been an
exemplary mother”, and that the Minister did not acknowledge this: A.F., at
para. 71. As I noted earlier, there is no information about the appellant’s
behaviour or the children’s welfare past June 2011. There is no basis for
finding the Minister’s decision to be unreasonable because he did not address
the appellant’s care for the children since they were returned to her, as there
was no evidence of that before him. To the extent that the appellant had
information on this issue that she believed to be relevant but had not placed
before the Minister, it seems to me that the appropriate avenue to pursue would
have been to ask the Minister to accept additional evidence and reconsider the
decision: Extradition Act, ss. 42 and 43(2) ; see also Adam v. United
States of America (2003), 64 O.R. (3d) 268 (C.A.), at paras. 17-26; United
States v. Pakulski, 2014 ONCA 81, at paras. 7-9 (CanLII); United States
of America v. Johnstone, 2013 BCCA 2, 333 B.C.A.C. 107, at paras. 7-8, 27
and 61; and United States of America v. Fong (2005), 193 C.C.C. (3d) 533
(Ont. C.A.), at paras. 31-38.
[164]
In my view, the Minister reasonably concluded,
based on the information he had before him, that the potential impact on the
children of the appellant’s extradition was unclear.
[165]
In addition to his consideration of what was in
the best interests of the children, the Minister also took into account that
persons accused of crimes in Canada cannot escape criminal prosecution only on
the basis that prosecution against them may have negative consequences on their
spouses, children or other family members. This was an appropriate matter for
him to consider. The Minister also took into account that it is an important
principle of public policy that parents not be allowed to abduct their children
in violation of a custody order or use international borders to separate their
children from their custodial parent. This too was an appropriate matter for
him to take into account.
[166]
Related to this last point, the appellant
submits that she should not be punished for legitimately saving her children
from a real threat and that it would be unjust and oppressive for a person in
the appellant’s situation to have to choose between saving her children and
retaining her freedom.
[167]
In my view, the record did not make out even a
reasonable basis to think that the appellant had to abduct the children in
order to protect them from their father’s alleged physical abuse. And, as the
Minister rightly pointed out, it was not his role to question the sufficiency
of evidence for committal. It was not unreasonable for the Minister to give
little weight to the appellant’s position that she was in effect forced to do
what she did to protect the children.
[168]
In my view, the Minister’s decision reviewed the
relevant facts and stated and applied the correct legal principles to the
submissions and evidence that were placed before him. He gave serious
consideration to the best interests of the children and weighed them with the
other relevant considerations in concluding that the appellant’s surrender
would not be unjust or oppressive in these circumstances.
[169]
To conclude, I agree with the Court of Appeal
that the Minister’s decision is reasonable and contains no reviewable error
that would justify intervention on judicial review.
[170]
I would dismiss the appeal in relation to the
Minister’s surrender order.
IV.
Disposition
[171]
I would dismiss both the appeal in relation to
the committal order and the surrender order.
[172]
Having considered the appellant’s submission
regarding costs, I would make no order as to costs.
The reasons of Abella,
Karakatsanis and Côté JJ. were delivered by
[173]
Abella J. (dissenting) — This is a case about three young children who
reached out to their mother to rescue them from a violent and abusive father
after running away and living several days in an abandoned house. She now faces
the possibility of up to 15 years in jail if extradited to the United States
for that rescue.
[174]
The issue in this appeal is whether Canada
should extradite the mother. Under our extradition law, no one can be
extradited unless his or her conduct would have constituted an offence that is
punishable in Canada. This is known as the principle of double criminality, a
cornerstone of the extradition process in Canada. Its purpose is to
ensure that no one is surrendered from Canada to face prosecution in another
country for conduct that does not amount to a criminal offence in this country.
[175]
It is not an offence in Canada to deprive a
parent of custody if it was necessary to protect a child from imminent harm. As
a result, the committal judge found that the mother would not be guilty of a
criminal offence in this country.
[176]
It is also self-evidently contrary to the best
interests of the children to extradite her. There is no dispute that the
children should not be returned to their abusive father. To surrender the
mother for her conduct in protecting the children is to penalize them for
reaching out to her by depriving them of the only parent who can look after
them. Moreover, because the defence of rescuing children to protect them from
imminent harm does not exist in Georgia, the mother will not be able to raise
the defence she would have been able to raise had she been prosecuted in
Canada. Surrender in these circumstances is, with respect, Kafkaesque.
[177]
I would accordingly allow the appeal.
Background
[178]
M.M. and R.P. were married in 1996 and divorced
in 2001. They had three children, who were born in 1996, 2000 and 2001. At the
time of the divorce, the family was living in the state of Georgia, in the
United States.
[179]
M.M., the mother, was initially awarded sole
custody of the children after the divorce. The father, R.P., had visiting
rights. In 2005, the father took temporary custody of the children. On June 19,
2008, a Georgia court gave him sole custody of the children because of the
mother’s substance abuse problems. The order provided that she was to have no
visitation rights or contact with the children.
[180]
On October 30, 2010, the father reported the
three children missing. They were 9, 10 and 14 years old. According to the
children, they ran away because of their father’s abusive treatment and
violence. They did so without consulting their mother and without her
knowledge, and stayed alternately in an abandoned house or with friends. The
children did not contact their mother until around November 9. That same day,
in Georgia, the mother was pulled over with the three children in her car by
police, who suspected her of driving under the influence. Unaware that the
children had been reported missing, the police officer left the children in the
care of a colleague until a relative chosen by the mother could pick them up.
[181]
Several weeks later, the mother and the children
were found in a battered women’s shelter in Quebec. The mother was born in
Quebec and, like her children, is a dual citizen of Canada and the United
States.
[182]
The social worker representing the Quebec
Director of Youth Protection made numerous attempts to reach the father in the
ensuing months to no avail. Although he once informed the social worker that he
was working with an American group to have the children sent back to the United
States, the father told another social worker the next day that he had no
intention of coming to Canada to pick them up. His phone service was later
disconnected and there is no record of his whereabouts. His physical and
emotional abuse of the children is not in dispute.
[183]
On December 22, 2010, the mother was charged in
Georgia with interstate interference with a custody order, aggravated stalking,
and contributing to the delinquency of a minor. A warrant for her arrest was
issued.
[184]
On December 23, 2010, the mother was arrested in
Canada at the shelter. Two months later, based on an extradition request from
the United States, an authority to proceed was issued on the interference with
custody charges, seeking the mother’s committal for the corresponding Canadian
offences of (1) abduction of a person under 16, contrary to s. 280 of the Criminal
Code, R.S.C. 1985, c. C-46 , and (2) abduction in contravention of a custody
order, contrary to s. 282 . These provisions state:
280. (1) Every one who, without lawful authority, takes or
causes to be taken an unmarried person under the age of sixteen years out of
the possession of and against the will of the parent or guardian of that person
or of any other person who has the lawful care or charge of that person is
guilty of an indictable offence and liable to imprisonment for a term not
exceeding five years.
(2) In this section
and sections 281 to 283 , “guardian” includes any person who has in
law or in fact the custody or control of another person.
. . .
282. (1) Every one who, being the parent, guardian or person
having the lawful care or charge of a person under the age of fourteen years,
takes, entices away, conceals, detains, receives or harbours that person, in
contravention of the custody provisions of a custody order in relation to that
person made by a court anywhere in Canada, with intent to deprive a parent or
guardian, or any other person who has the lawful care or charge of that person,
of the possession of that person is guilty of
(a) an
indictable offence and is liable to imprisonment for a term not exceeding ten
years; or
(b) an
offence punishable on summary conviction.
(2) Where a count
charges an offence under subsection (1) and the offence is not proven only
because the accused did not believe that there was a valid custody order but
the evidence does prove an offence under section 283 , the accused may be
convicted of an offence under section 283 .
[185]
A statutory defence to charges under ss. 280 and
282 is recognized in s. 285 of the Criminal Code :
285. No one shall be found guilty of an offence under sections 280
to 283 if the court is satisfied that the taking, enticing away, concealing,
detaining, receiving or harbouring of any young person was necessary to protect
the young person from danger of imminent harm or if the person charged with the
offence was escaping from danger of imminent harm.
[186]
Shortly after her arrest, the mother sought
interim release. The request was denied. Her second request, however, was
granted.
[187]
The extradition judge, Cohen J., ultimately
refused to issue an order for the mother’s committal for extradition. In
refusing the request, she noted that the role of an extradition judge is not
merely to act as a “rubber stamp” of the executive, but to ensure that a person
sought for extradition receives a meaningful judicial assessment of his or her
case on the basis of the evidence and the law.
[188]
The extradition judge accepted evidence of a
series of admissions made in connection with the mother’s first request for
interim release; prior testimony from the oldest child at the hearing for the
mother’s second request for interim release; a judgment from the Youth Division
of the Court of Québec on a motion for the children’s protection; and two
reports from social workers in Canada and the United States filed as exhibits
in the proceedings before the Youth Court. This evidence indicated that the
children were afraid of their father and that he had physically and mentally
mistreated them. It also confirmed that the children had run away from their father
without any assistance or even the knowledge of their mother, and that it was
more than a week before they contacted her for help.
[189]
As a result of this evidence, Cohen J. concluded
that the s. 280(1) offence of abduction of a person under 16, had not been made
out. In her view, the evidence clearly indicated that the children had left
their father of their own volition. There was no evidence that the mother had
taken the children, or caused them to be taken, out of the possession of and
against the will of their father without lawful authority. The only evidence
supporting this conclusion was a statement in a summary of the evidence
available for trial prepared by the United States saying that the father’s
testimony would be that he suspected the mother of taking the children without
his authority. The extradition judge found this evidence to be so defective and
unreliable as not to be worthy of consideration.
[190]
As for the s. 282(1) offence of abduction in
contravention of a custody order, the extradition judge held that there was
insufficient evidence of the mother’s specific intent to deprive the father of
possession of the children. On the contrary, the evidence indicated that the
mother refused to receive or harbour the children after they ran away.
[191]
Cohen J. was also of the view that, given the
“clear wording” of s. 285 , the mother could not be found guilty on the charge
of abduction since her intent was to protect the children from danger of
imminent harm at the hands of their father. No reasonable jury in Canada,
properly instructed, could therefore return a verdict of guilty on the charge
of abduction of the children against the mother in the circumstances.
[192]
The order for committal was accordingly refused.
[193]
The Quebec Court of Appeal allowed the appeal
and ordered the mother’s committal. In its view, the role of an extradition
judge is limited, and precludes weighing the probative value of the evidence.
In this case, the extradition judge erred by considering whether there was, in
essence, a reasonable likelihood of conviction. She failed to discuss unrefuted
admitted facts from the record of the case, namely that the children went
missing while in their father’s custody and that they were found in their
mother’s car on November 9, 2010. In the Court of Appeal’s view, the evidence
established the essential elements to justify committal.
[194]
In addition, the Court of Appeal held that the
extradition judge erred by taking into account the defence set out in s. 285 of
the Criminal Code . It concluded that while “in due course” a defence
along the lines of s. 285 may be open to the mother, the extradition judge went
beyond her proper role in considering it at the committal stage.
[195]
In the mother’s submissions to the Minister of
Justice, she argued that her surrender would be unjust and oppressive both
because her extradition would not be in the best interests of her children, and
because she had a strong defence to the equivalent Canadian charges under s.
285 of the Criminal Code . She noted in particular that she had taken
good care of her children, that she was saving them from imminent danger of
physical and mental abuse by bringing them to Canada, and that they would face
a serious risk of harm if they were to return to their abusive father in
Georgia.
[196]
The Minister ordered her surrender. He noted
that the “best interests of the child” is not a principle of fundamental
justice and that a person accused of a crime in Canada cannot escape criminal
prosecution solely because it may have negative consequences on his or her
family. In any event, he found that the best interests of the children were
unclear, and that there was no evidence suggesting that the children would be
returned to their father’s care if the mother were extradited. Moreover, the
Minister was of the view that if the mother were extradited, the Quebec
Director of Youth Protection could determine what was in the children’s best
interests, and that if no family member could take care of them, foster care
would be available.
[197]
In addition, he concluded that the s. 285
defence did not alter the criminal nature of the conduct, nor was it a
relevant consideration in determining whether the mother’s conduct met the
requirements of double criminality. In his view, defences should be left for
consideration by the foreign court. While he acknowledged that no defence
equivalent to s. 285 is recognized under Georgia law, he noted that the mother
could nonetheless raise the defence of coercion. In his view, it was not his
role to question the sufficiency of the evidence for committal.
[198]
The Quebec Court of Appeal dismissed the
mother’s application for judicial review of the Minister’s surrender order. It
concluded that the Minister’s decision was reasonable because he took into
consideration and evaluated all the relevant circumstances, including the best
interests of the children. The Minister also properly balanced the mother’s
personal circumstances and the consequences of extradition for the mother and
her children against such factors as the importance for Canada to meet its
international obligations and for Canada not to be used as a safe haven by
fugitives. The mother’s surrender to the United States would therefore not be
unjust or oppressive, nor would it result in a violation of her constitutional
rights.
[199]
This Court, in United States of America v.
Ferras, [2006] 2 S.C.R. 77, clarified the test for committal in extradition
proceedings, clearly distinguishing it from the lower threshold for committal
in preliminary inquiries. That test is whether there is “sufficient evidence
upon which a reasonable jury, properly instructed, could convict”: para. 65.
In my view, that threshold for committal was not met in this case.
[200]
And although it is not strictly necessary, given
my view that committal was not justified, I would also set aside the Minister’s
surrender order. In my respectful view, he did not take into sufficient account
the best interests of the children who, having sought their mother’s assistance
in escaping from their father’s violence, would find themselves without a
parent if she were extradited for helping them. Nor did the Minister take
proper account of the fact that Georgia does not recognize a defence analogous
to s. 285 .
Analysis
[201]
Extradition is often characterized as taking
place over three phases. At the first stage, the Minister must decide,
after receiving an extradition request from a foreign state, whether to proceed
with the matter by issuing an authority to proceed. If an authority to proceed
is issued, the next phase is the committal stage, where the extradition judge
determines whether the requirement of double criminality is met and,
therefore, whether committal is justified. If committal is ordered, the matter
reverts to the Minister to decide whether to order surrender: see Extradition
Act, S.C. 1999, c. 18, s. 40 . The power to order or refuse surrender is
discretionary, but is subject to the provisions of the Extradition Act
and the Extradition Treaty between Canada and the United States of America,
Can. T.S. 1976 No. 3 (“Treaty”), and must be exercised in
accordance with the Canadian Charter of Rights and Freedoms . Most
pertinently for purposes of this case, s. 44(1) (a) of the Extradition
Act provides that the Minister must refuse surrender if he is satisfied
that the surrender would be “unjust or oppressive having regard to all the
relevant circumstances”.
[202]
Canada is a signatory to a number of extradition
treaties, including the Treaty, which governs extradition between Canada
and the United States. The Treaty and other extradition treaties are
implemented into domestic law in the Extradition Act .
[203]
“Double criminality” is a precondition to
surrender under Canada’s extradition treaties (e.g., Articles 2 and 10 of the Treaty),
and is codified at s. 3(1) of the Extradition Act . Section 3(1) provides:
3. (1) A person may be extradited from Canada in accordance
with this Act and a relevant extradition agreement on the request of an
extradition partner for the purpose of prosecuting the person or imposing a
sentence on — or enforcing a sentence imposed on — the person if
(a) subject
to a relevant extradition agreement, the offence in respect of which the
extradition is requested is punishable by the extradition partner, by
imprisoning or otherwise depriving the person of their liberty for a maximum term
of two years or more, or by a more severe punishment; and
(b) the
conduct of the person, had it occurred in Canada, would have constituted
an offence that is punishable in Canada,
(i) in
the case of a request based on a specific agreement, by imprisonment for a
maximum term of five years or more, or by a more severe punishment, and
(ii) in
any other case, by imprisonment for a maximum term of two years or more, or by
a more severe punishment, subject to a relevant extradition agreement.
[204]
Double criminality therefore incorporates both a
domestic and foreign component. Section 3(1) (a) of the Extradition
Act requires that the offence upon which extradition is requested be
punishable in the requesting state by a loss of liberty of two or more years.
Section 3(1) (b) provides that the conduct underlying the foreign offence
must constitute an offence punishable in Canada by at least two years.
[205]
As McLachlin J. explained in Kindler v.
Canada (Minister of Justice), [1991] 2 S.C.R. 779, at p. 845, Canada “will
not extradite for acts which are not offences in this country”. The underlying
purpose of the double criminality requirement is to ensure that “no one in
Canada [is] surrendered for prosecution outside this country for behaviour that
does not amount to a crime in this country”: United States of America v.
Lépine, [1994] 1 S.C.R. 286, at p. 297. Stated otherwise, “[t]he purpose of
double criminality is to safeguard the liberty of an individual whose
extradition is sought by ensuring that he or she is not surrendered to face
prosecution in another country for conduct that would not amount to a criminal
offence in the country of refuge”: Canada (Justice) v. Fischbacher,
[2009] 3 S.C.R. 170, at para. 26.
[206]
The principle of double criminality is
internationally recognized as central to extradition law: Fischbacher,
at para. 26. Resting in part on the concept of reciprocity, it ensures that a
person’s liberty is not at risk as a consequence of an offence
which is not criminal in the requested state: Washington (State of) v.
Johnson, [1988] 1 S.C.R. 327, at p. 341 (citing Ivan A. Shearer, Extradition
in International Law (1971), at pp. 137-38).
[207]
That is because double criminality is based, in
part, on ensuring that “a person’s liberty is not restricted as a consequence
of offences not recognized as criminal by the requested State”: Shearer, at p.
137. As Prof. Shearer explains, the rule of reciprocity ensures that a state is
not required to extradite someone for an offence for which it, in return,
“would never have occasion to make demand”: p. 138. In other words, where a
person is extradited for conduct not amounting to a criminal offence in the
requested state, the principle of double criminality is offended.
[208]
Responsibility for deciding whether the foreign
component of double criminality has been met falls to the Minister. When the
Minister receives an extradition request for a person sought to face trial, he
or she must determine whether the conduct described in the extradition request
satisfies the conditions set out in s. 3(1) (a) of the Extradition Act
before he or she can issue an authority to proceed: Extradition Act, s. 15(1) . Section 15(3) of the Extradition Act
provides that the authority to proceed must include three components, including
that the conduct must amount to an offence punishable in Canada in accordance
with s. 3(1) (b).
[209]
The authority to proceed authorizes the Minister
to seek an order of committal before an extradition judge. The function of the
extradition hearing is to determine whether the domestic component of double
criminality is met, as required by s. 3(1) (b) of the Extradition Act .
Section 29(1) of the Extradition Act provides:
29. (1) A judge shall order the committal of the person into
custody to await surrender if
(a) in the case of a person sought
for prosecution, there is evidence admissible under this Act of conduct that,
had it occurred in Canada, would justify committal for trial in Canada on the
offence set out in the authority to proceed and the judge is satisfied that the
person is the person sought by the extradition partner;
[210]
Section 29(1) of the Extradition Act
requires a judge to order committal if there is sufficient evidence to justify
committal for trial in Canada had the offence occurred in this country. The
requirement, however, must be read harmoniously with the rest of the Act. In
particular, s. 3(1) (b) provides in part that the conduct of the person,
had it occurred in Canada, must constitute “an offence that is punishable in
Canada”. Effect must be given to s. 3(1) (b) and the animating principle
of double criminality in determining the scope of the extradition judge’s role
in deciding whether to order committal. As a result, the function of the
extradition hearing is
to determine whether there is
sufficient evidence that a fugitive accused has committed an act in the
requesting state that would, if committed in Canada, constitute a Canadian
crime . . . . In short, . . . what the extradition judge must determine is
whether the conduct of the accused would constitute a crime if it had
been committed in this country. [Emphasis in original.]
(McVey
(Re), [1992] 3 S.C.R. 475, at p. 526)
[211]
This Court most recently discussed an appeal of
a committal order in Ferras, where it held that before a person
can be ordered for committal, there must be a “meaningful judicial
determination” of whether the case for extradition has been established,
namely, “whether there is sufficient evidence to permit a properly instructed
[Canadian] jury to convict”: para. 26. An extradition judge is not merely “a
rubber stamp”, but must instead “judicially consider the facts and the law and
be satisfied that they justify committal before ordering extradition”: para.
25.
[212]
Given that both committal hearings and
preliminary inquiries are pre-trial screening procedures directed at assessing
the sufficiency of evidence, a parallel had previously been drawn between the
two. Notably, however, Ferras explained that
there are significant differences between the two
procedures:
It is important as well to note
the differences between extradition hearings and domestic preliminary
inquiries. Both are pre-trial screening devices and both use the same test
of sufficiency of evidence for committal: whether evidence exists upon which a
reasonable jury, properly instructed, could return a verdict of guilty . .
. . Previously, the Extradition Act cemented the analogy between the two
proceedings by directing that an extradition judge “hear the case, in the same
manner, as nearly as may be, as if the fugitive was brought before a justice of
the peace, charged with an indictable offence committed in Canada” . . . . The
new Act, however, does not maintain this close parallel in
proceedings. Section 24(2) of the Act states: “For the purposes of the
hearing, the judge has, subject to this Act, the powers of a justice under Part
XVIII of the Criminal Code , with any modifications that the circumstances require.” This
grants the extradition judge the same powers as a preliminary inquiry judge,
but requires the judge to exercise those powers in a manner appropriate to the
extradition context. The judge no longer follows “as nearly as may be” the
procedure of a preliminary inquiry. A second difference comes from the
different rules for admitting evidence. Evidence is admitted on a
preliminary inquiry according to domestic rules of evidence, with all the
inherent guarantees of threshold reliability that those rules entail. In
contrast, evidence adduced on extradition may lack the threshold guarantees of
reliability afforded by Canadian rules of evidence. A third difference
comes from the ability of extradition judges to grant Charter remedies. These
differences make it inappropriate to equate the task of the extradition judge
with the task of a judge on a preliminary inquiry. [Emphasis
added; para. 48.]
Ferras thus clearly distinguished committal hearings from preliminary
inquiries, eschewing the latter’s threshold in extradition proceedings.
[213]
Given the context of extradition proceedings and
the liberty interests involved, the threshold for committal for extradition is
higher than the threshold that applies to preliminary inquiries for committal
to a criminal trial. This is reflected in the expanded ability of the
extradition judge to admit and assess evidence led at the committal hearing:
Section 29(1) of the Extradition Act . . . requires the extradition judge to be
satisfied that the evidence would justify committal for trial in Canada, had
the offence occurred here. Canadian courts in recent decades have adopted
the practice of leaving a case or defence to the jury where there is any
evidence to support it, and have discouraged trial judges from weighing the
evidence and refusing to put a matter to the jury on the basis that the
evidence is not sufficiently reliable or persuasive . . . . This may explain .
. . that the extradition judge has no discretion to refuse to extradite if
there is any evidence, however scant or suspect, supporting each of the
elements of the offence alleged. This narrow approach to judicial
discretion should not be applied in extradition matters, in my opinion. The
decision to remove a trial judge’s discretion reflects confidence that, given
the strict rules of admissibility of evidence on criminal trials, a properly
instructed jury is capable of performing the task of assessing the reliability
of the evidence and weighing its sufficiency without the assistance of the
judge. The accused is not denied the protection of the trier of fact
reviewing and weighing the evidence. The effect of applying this test in
extradition proceedings, by contrast, is to deprive the subject of any review
of the reliability or sufficiency of the evidence. Put another way, the
limited judicial discretion to keep evidence from a Canadian jury does not have
the same negative constitutional implications as the removal of an extradition
judge’s discretion to decline to commit for extradition. In the latter
case, removal of the discretion may deprive the subject of his or her
constitutional right to a meaningful judicial determination before the
subject is sent out of the country and loses his or her liberty. [Emphasis
added; para. 47.]
[214]
To justify committal in extradition proceedings,
therefore, the test is clear: there must not only be
evidence on each element of the offence, the evidence must be such that a
reasonable, properly instructed jury could return a guilty verdict. As this
Court stated in Ferras:
Section 29(1) ’s direction to an
extradition judge to determine whether there is admissible evidence that would
“justify committal” requires a judge to assess whether admissible evidence shows
the justice or rightness in committing a person for extradition. It is not
enough for evidence to merely exist on each element of the crime. The evidence
must be demonstrably able to be used by a reasonable, properly instructed jury
to reach a verdict of guilty. If the evidence is incapable of
demonstrating this sufficiency for committal, then it cannot “justify
committal”. The evidence need not convince an extradition judge
that a person sought is guilty of the alleged crimes. That assessment
remains for the trial court in the foreign state. However, it must
establish a case that could go to trial in Canada. This may require
the extradition judge to engage in limited weighing of the evidence to
determine, not ultimate guilt, but sufficiency of evidence for committal to
trial. [Emphasis in original; para. 46.]
[215]
In determining whether committal is justified,
the extradition judge must consider both what evidence is admissible under the Extradition
Act and whether that evidence justifies committal: Ferras, at para.
36. Sections 31 to 37 of the Extradition Act provide the
framework for the admissibility of evidence in the extradition context. Of
particular note, s. 32(1) provides in part that evidence admissible under
Canadian law is admissible at an extradition hearing. In addition, evidence
adduced by the person sought for extradition that is “relevant” to the test for
committal set out in s. 29(1) is admissible if the judge considers it
“reliable”, notwithstanding the fact it might otherwise not be admissible under
Canadian law: s. 32(1) (c).
[216]
The central issue in this case with respect to
the committal order is, as a result, whether “a reasonable, properly instructed
jury” could “reach a verdict of guilty”. In my view, this necessarily involves
consideration of the statutory defence in s. 285 of the Criminal Code ,
which states in part that no one will be found guilty of an offence under ss.
280 to 283 of the Criminal Code if the taking or harbouring of any young
person was necessary to protect the young person from danger of imminent harm.
[217]
The statutory defence now codified at s. 285 was first added to the Criminal
Code in 1982 as part of a larger series of amendments to the Code
related to sexual offences and other offences against the person: An Act to
amend the Criminal Code in relation to sexual offences and other offences
against the person and to amend certain other Acts in relation thereto or in
consequence thereof, S.C. 1980-81-82-83, c. 125, s. 20. At that time, the
defence was limited to circumstances where the young person was in danger of
imminent harm and did not extend to an accused who himself or herself was in
danger. In describing the purpose of the provision and another new defence,
Jean Chrétien, then-Attorney General and Minister of State for Social
Development, said:
Defences are provided for
where the absconding parent has the consent of the custodial parent, and also
for the rare case in which the absconding parent can persuade a court that his
motive was to save the child from “danger of imminent harm”.
(House
of Commons Debates, vol. XVII, 1st Sess., 32nd Parl., August 4, 1982, at p.
20040)
[218]
The information publicly distributed by the
Department of Justice when the provision came into effect emphasized that the
legislation was aimed at protecting children:
The legislation also
strengthens the Criminal Code provisions against taking a child without
the consent of the person who has legal custody of that child. “The new law
puts the child first” said [then-Minister of Justice and Attorney General]
Dr. [Mark] MacGuigan, “and recognizes that children have rights: the right to
security, stability and continuity in their lives.”
. . .
The new law attempts to stop
th[e] practice [of child stealing or abduction]. It accepts that children have
rights. They have the right to security, stability, and continuity in their
lives. The law protects children from their own parents.
. . .
If the child is in
immediate danger, this is a justification for taking the child. The accused
must prove to the court that there was a danger of harm.
[Emphasis added.]
(Information
on Bill C-127 (1983), news release, “Sexual Offences Bill Proclaimed Law”,
January 4, 1983, and brochure, “Abduction: Stealing Children”)
[219]
In 1985, the Criminal Code was revised
and the provision was recodified as s. 285 . In 1993, it was amended and
expanded to apply in circumstances where either the young person or the accused
is escaping from danger of imminent harm: An Act to amend the Criminal Code
and the Young Offenders Act, S.C. 1993, c. 45, s. 6. As the then-Minister
of Justice Pierre Blais said, the amendment served to ensure that a defence was
available to battered spouses fleeing violence who decide to take their
children with them: House of Commons Debates, vol. XV, 3rd Sess., 34th
Parl., May 6, 1993, at p. 19017; Senator Erminie Cohen, Debates of the
Senate, vol. IV, 3rd Sess., 34th Parl., June 16, 1993, at p. 3536.
[220]
Internationally, Canada is a signatory to a number of
international instruments which, like s. 285 , recognize the primacy of
protecting children from harm. The Convention on the Rights of the Child,
Can. T.S. 1992 No. 3, for example, which Canada ratified in 1991, provides that
state parties must “take all appropriate legislative, administrative, social
and educational measures to protect the child from all forms of physical or
mental violence, injury or abuse, neglect or negligent treatment, maltreatment
or exploitation . . . while in the care of parent(s), legal guardian(s) or any
other person who has the care of the child”: art. 19. The fact that 195
countries have now accepted the Convention speaks to the reality that
“protecting children from harm [is] a universally accepted goal”: Winnipeg
Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, at para. 73.
[221]
Similarly, The Hague Convention on the Civil
Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (‟The
Hague Conventionˮ), also underscores the importance of keeping
children safe from harm. It states that an order to return a child who has been
wrongfully removed from his or her habitual residence may be refused if “there
is a grave risk that his or her return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation”:
art. 13(b).
[222]
In Thomson v. Thomson, [1994] 3 S.C.R.
551, La Forest J. explained that this risk must “be a weighty one”, but also
acknowledged that “from a child centred perspective, harm is harm”: p. 597; and
see Pollastro v. Pollastro (1999), 43 O.R. (3d) 485 (C.A.). See also In
re D. (Abduction: Rights of Custody), [2007] 1 A.C. 619 (H.L.), where it
was similarly observed that “limitations on the duty to return must be
restrictively applied”, but that there will nevertheless be “circumstances in
which a summary return would be so inimical to the interests of the particular
child that it would also be contrary to the object of the Convention”: para.
51.
[223]
Like the Convention on the Rights of the
Child and The Hague Convention, s. 285 is aimed at protecting
children from harm. Just as the Convention on the Rights of the Child
obligates states to take action to protect a child from violence and abuse, and
The Hague Convention guards against a child being returned to a
situation of grave risk of harm or another intolerable situation, s. 285 shields
an individual who takes a child out of necessity to protect him or her from
danger of imminent harm. Section 285 thus creates a statutory defence to ensure
that children are protected from harm.
[224]
It should not, as a result, represent or be seen
as a codification of the common law defence of necessity. Contrary to the
Crown’s submissions, I see no basis for imposing its exceptionally high
threshold into the s. 285 context. Narrowing the defence in s. 285 by importing
the tripartite requirements to satisfy the common law necessity test would
undermine the text and purpose of the provision. Section 285 requires proof
that the taking be “necessary to protect the young person from danger of
imminent harm”. As the legislative history discussed earlier in these reasons
makes clear, the provision is aimed at “put[ting] the child first” and excusing
an accused’s conduct where there is “danger of harm”: Information on
Bill C-127.
[225]
In fact, nowhere in the legislative history is
there any mention that s. 285 was intended to incorporate any aspect of the
common law defence of necessity. Instead, as previously noted, the words of
the then-Minister of Justice confirm that the intention was to provide for the
“rare case in which the absconding parent can persuade a court that his motive
was to save the child from ‘danger of imminent harm’”. The focus, therefore,
is clear — the rescue of children in danger.
[226]
Importing common law barriers from the necessity
defence test thus contradicts both the language and, in particular, the
child-centred purpose of the provision. This is not a licence to abduct
children, it is a defence from criminal liability where their safety urgently
requires rescue. In the rare case where the evidence shows that the taking “was
necessary to protect the young person from danger of imminent harm” or that
“the person charged with the offence was escaping from danger of imminent
harm”, the defence will be made out. Had Parliament intended to allow the
common law defence of necessity to apply to ss. 280 and 282 , there would have
been no need to enact s. 285. With great respect, to consider s. 285 as
incorporating the defence of necessity renders s. 285 redundant.
[227]
The result of s. 285 is that an accused who
would otherwise be guilty of an offence under ss. 280 to 283 but whose conduct
falls under the conditions specified in s. 285 is not criminally liable for his
or her actions. In the words of s. 3(1) (b) of the Extradition Act ,
the conduct would not have constituted a punishable offence.
[228]
In order for the s. 285 defence to preclude
committal, therefore, the evidence presented at the extradition hearing must be
sufficiently compelling as to s. 285’s application to the facts of the case
that a reasonable, properly instructed jury could not convict. This is consistent
with the standard for committal set out in Ferras, where the Court held
that a meaningful judicial determination of whether the test for committal has
been satisfied requires “sufficient evidence to permit a properly instructed
jury to convict”: para. 26.
[229]
In other words, if a properly instructed jury
could not convict in this case by reason of s. 285, the conduct would not
constitute “an offence that is punishable in Canada” pursuant to s. 3(1) (b)
of the Extradition Act . As a result, the requirement of double
criminality is not met.
[230]
It is true that an extradition hearing is
intended to be an expedited process that ensures Canada’s prompt compliance
with international obligations at a minimum of expense: United States of
America v. Dynar, [1997] 2 S.C.R. 462, at para. 122. At the same time, however, “[o]ne of
the most important functions of the extradition hearing is the protection of
the liberty of the individual”: Dynar, at para. 121. A meaningful judicial determination of whether the double criminality
requirement is met should not be sacrificed on the altar of potential concerns
of expediency, comity and cost. These concerns are adequately addressed in the
existing extradition process and not undermined by consideration of the
viability of a s. 285 defence. In any event, they must be counterbalanced
against the need for a meaningful judicial assessment of the case based on the
evidence and the law so that the liberty interests of the person sought for
extradition are fully respected and protected.
[231]
The task, therefore, for the extradition judge
in deciding whether committal is warranted is to determine whether the evidence
as a whole
discloses a case on which a
jury could convict. If the evidence is so defective or appears so
unreliable that the judge concludes it would be dangerous or unsafe to convict,
then the case should not go to a jury and is therefore not sufficient to meet
the test for committal.
(Ferras,
at para. 54)
[232]
Applying these principles, the extradition judge
in this case accepted evidence that she concluded met the threshold test of
reliability and was relevant to the issue of committal. Based on a meaningful
judicial assessment of the whole of the evidence, she determined that the
evidence did not reveal conduct that would justify committal. In my view, she
was right to do so.
[233]
Consideration of the s. 285 defence where a
person is sought for extradition on a corresponding Canadian offence under ss.
280 to 283 , is a necessary component of determining whether a punishable
offence has occurred in Canada. This requires an assessment of potential
exonerating factors in order to determine whether the impugned conduct is
indeed criminal. Removing consideration of s. 285 from the scope of the
extradition judge’s review would fail to give proper effect to the principle of
double criminality. If the double criminality requirement is to achieve its
purpose of ensuring that a person is not surrendered to face prosecution for
conduct that would not amount to a criminal offence in Canada, s. 285 must
therefore be taken into account when deciding whether a person’s conduct would
constitute a crime if committed in this country and so justify committal. To
preclude its consideration is to unduly narrow the role of the extradition
judge in ensuring that double criminality is met, and in providing a meaningful
process safeguarding the liberty interests of the person sought for
extradition.
[234]
There is ample evidence in this case to support
the conclusion that, in light of s. 285, a reasonable and properly instructed
jury in Canada could not return a guilty verdict on the abduction charges. As
the extradition judge concluded, the evidence clearly indicated that the
children left their father of their own volition and that he was abusive. The
judgment from the Youth Division of the Court of Québec, concurring with an
analysis of the situation made by one of the social workers, found that the
children were abused by the father and were at risk for further violence if
they were returned to Georgia. More specifically, the social worker
noted that the father had admitted to using violence in order to correct his
two daughters and that information obtained from Georgia Social Services
illustrated that their services could not confirm that the children would be safe
from abuse if taken back to Georgia.
[235]
The children similarly reported to the social
worker that their father was abusive, often using belts to hit them. The
youngest child stated that the father often told the children that they were
bad and created reasons to punish them. The oldest child reported that both his
siblings were regularly victims of abuse at the hands of their father, and that
he too was abused by the father when he was younger. Both the oldest and middle
children explained that they left their father’s home together with their
younger sister at the end of October 2010 following an altercation between the
middle child and the father in which he physically abused her. The children
were only 9, 10 and 14 years old at the time. The mother similarly told the
social worker that the father had a violent past and that she took the children
to Canada solely out of a desire to protect them. Moreover, the oldest child
told the social worker that he would rather remain in Canada because he
believes he is safe here. Both the youngest and middle child similarly reported
that they were afraid of being physically abused if they were to return to
their father.
[236]
Further corroboration of abuse and harm
came from the testimony of the oldest child at a hearing for the mother’s
interim release. He testified that he and his younger sisters had been
physically and mentally abused by the father, stating that “there were
incidents with our father, we never had a good relationship and we could not be
around him, we did not feel comfortable or safe”. According to the oldest
child, the father threatened the children and beat them with a belt. They
decided to run away from their father’s home without the mother’s assistance or
knowledge, and lived on their own for more than a week before contacting their
mother.
[237]
The extradition judge’s unequivocal conclusion
based on this evidence was that a reasonable, properly instructed Canadian
jury, given the clear wording of s. 285, could not return a verdict of guilty
because “the mother’s intent in receiving and harbouring the children
after they ran away from their father was to protect the children from further,
imminent harm”:
In the circumstances and based upon the
facts summarized above, no reasonable jury could draw the inference, as
submitted by the Requesting State, that the mother’s intent was to deprive the
father of possession of these children, especially as they left of their own
volition and not as a result of any actions on her part.
[238]
I agree. In my view, the evidence in this case
is sufficiently compelling that a properly instructed jury could not convict
the mother of offences under ss. 280 and 282 of the Criminal Code had
her conduct occurred in Canada given the operation of s. 285 . This evidence
suggests that the children left the father’s home on their own volition and
that the mother’s actions in taking the children after they ran away were to
protect them from further danger of imminent harm. The double criminality
requirement is accordingly not met and the mother’s committal is not warranted
in light of the evidence.
[239]
As a result, even under the common law defence
of necessity, no reasonable and properly instructed jury could find that the
tripartite test required to engage the defence of necessity is met on the facts
of this case. This Court has long held that the common law defence of necessity
requires evidence that the accused was faced with a danger of imminent peril or
harm, that there was no reasonable legal alternative to the accused’s conduct
and that there is proportionality between the harm caused by the accused and
the harm avoided by resorting to the impugned conduct: R. v. Latimer,
[2001] 1 S.C.R. 3, at paras. 28-34; R. v. Ryan, [2013] 1
S.C.R. 14. The committal judge found that the evidence, including admissions by
the father, “clearly indicates that he physically abused the three children”.
The evidence was that the children were at “serious risk” of further abuse. The
children remained at risk even after they had run away, as they were living in
an abandoned house, itself a vulnerable situation, and would have been returned
to their father if they had been found. This evidence was uncontradicted. On
the issue of whether there was a reasonable legal alternative, the mother could
have surrendered her children to the government, or sought to vary the custody
order. However, she knew the father to be abusive, yet he retained sole
custody. Obviously, the government would either have returned the children to
him, at least in the short term, or placed them in foster care. In the
circumstances of this case, no jury could find this to be a reasonable option
for a parent. Finally, no jury could find that the harm of depriving an abusive
father of custody, and who is not interested in having the children returned to
him, outweighs the harm of children being abused.
[240]
I am aware that there is a trilogy of cases from
this Court suggesting that common law and Charter defences should not be
addressed by extradition judges, but left instead for determination in the
foreign court: Canada v. Schmidt, [1987] 1 S.C.R. 500; Argentina v.
Mellino, [1987] 1 S.C.R. 536; United States v. Allard, [1987] 1
S.C.R. 564. These cases, however, dealt with procedural, not statutory defences
which go to whether the conduct itself constitutes an offence.
[241]
In Schmidt, for example, a person sought
for extradition to the United States argued that she should not be extradited
to face charges under Ohio law principally on the ground that she was acquitted
in respect of the same activity under United States federal law and thus her
committal would violate the principle of autrefois acquit, either under
the Charter or at common law. In rejecting the argument, La Forest J., writing for the majority, held
that a judge at an extradition hearing “has no jurisdiction to deal
with defences that could be raised at trial” unless the Extradition Act
or the applicable extradition treaty otherwise provides: p. 515 (emphasis
added). In his view, importing defences into the extradition hearing more
appropriately dealt with at trial could “seriously affect the efficient working
of a salutary system devised by states for the mutual surrender of suspected
wrongdoers”: p. 516.
[242]
And in Mellino, La Forest J., again
writing for the majority, concluded that “[i]t would cripple the operation of our extradition arrangements if
extradition judges were to arrogate the power to consider defences that
should properly be raised at trial”: p. 555 (emphasis added). In
that case, the person sought for extradition requested a stay of the proceedings
on the grounds that a 17-month delay between his discharge at a first
extradition hearing and the institution of second extradition proceedings was
an abuse of process and infringed s. 7 of the Charter .
[243]
Finally, in Allard, another case
involving a request to stay proceedings on Charter grounds, La Forest J.
held that a judge acting in an extradition matter is not a court of competent
jurisdiction under s. 24(1) of the Charter to order a stay of
proceedings. He again reiterated that “[t]he various defences to [a]
charge are for the consideration of the judge at the trial in the
[requesting state]”: p. 571 (emphasis added). Canadian courts, accordingly,
“need not enquire into whether the prosecution will conform to our procedures
or if there are defences that could be raised if the trial took place in
Canada”: pp. 571-72 (emphasis added).
[244]
Schmidt, Mellino
and Allard are thus clearly distinguishable from the case at bar in that
they are concerned with procedural and Charter defences, not a statutory
defence like s. 285 going directly to criminality. As the British Columbia
Civil Liberties Association submitted, the species of exculpatory defence
before the Court in this case does engage criminality. Pursuant to s.
285, a person cannot be found guilty of an offence under ss. 280 to 283 where
the taking was necessary to protect the young person from danger of imminent
harm. Unlike the Charter and procedural defences in Schmidt, Mellino
and Allard, s. 285 is a statutory defence that defines the criminal
conduct. In my view, an extradition judge must accordingly consider the defence
in assessing whether the double criminality requirement is met before ordering
committal.
[245]
In addition, to the extent Schmidt, Mellino
and Allard may suggest the extradition judge should not consider any
defences when deciding whether to order committal, these decisions have been
overtaken by this Court’s subsequent jurisprudence in the extradition and Charter
context. It is beyond dispute that the function of the extradition hearing is
to determine whether the domestic component of double criminality is met: Németh
v. Canada (Justice), [2010] 3 S.C.R. 281, at para. 63; Fischbacher,
at para. 35. As set out in s. 3(1) (b) of the Extradition Act ,
this requires in part that “the conduct of the person, had it occurred in
Canada, would have constituted an offence that is punishable in Canada”.
Barring an extradition judge from considering s. 285 could result in an order
for committal in circumstances where the double criminality requirement is not
met, thereby jeopardizing the liberty of the individual, a vital interest this
country’s extradition process is designed in part to protect.
[246]
This makes it crucial to observe that if the
mother is extradited, the s. 285 defence that it was necessary to rescue the
children to protect them is not available in the state of Georgia. While this
fact does not alter the analysis of whether the domestic component of double
criminality is met, it is relevant to the philosophy behind the earlier cases
from this Court deferring consideration of defences to the trial in the
requesting state. Where, as here, a defence like the one in s. 285 cannot
be raised in the requesting state, the ratio of those cases disintegrates.
[247]
Whether common law defences generally should
be considered as part of the double criminality inquiry is not before this
Court and is best left for determination in a case where the issue is squarely
raised. In any event, in this case there is a statutory defence which is
clearly available on the facts and would lead a reasonable and properly
instructed jury not to return a verdict of guilty on charges under ss. 280(1)
and 282(1) . Committal, as the extradition judge concluded, is therefore
not justified.
[248]
Where committal is not justified, the
extradition judge must order the person’s discharge and the matter does not go
to the Minister to decide whether or not to order surrender: see Extradition
Act, s. 29(3) . While it is therefore not strictly necessary to deal with
the surrender order, in my view, the approach the Minister used raises concerns
not only about how to approach the best interests of children, but also on the
interplay between those interests and the nature of the crime the mother was
charged with — a crime which, in Canada, attracts a singular statutory
defence. His decision to order surrender was, as a result, unreasonable.
[249]
The surrender stage of the extradition process
is an executive function requiring the Minister to review the case in its
entirety to determine whether or not to order the individual’s surrender
and, if so, on what basis: Fischbacher, at para. 36. The Minister’s
general powers on the question of surrender are set out in s. 40(1) of the Extradition
Act :
40.
(1) The Minister may, within a period of 90 days after the date of a
person’s committal to await surrender, personally order that the person be
surrendered to the extradition partner.
[250]
Despite s. 40(1), the Minister’s surrender
powers are not entirely discretionary: Sriskandarajah v. United States of
America, [2012] 3 S.C.R. 609, at para. 12. As this Court explained
in Németh, the discretion whether to order or to refuse surrender “is
structured and, in some circumstances, constrained” by the Extradition Act ,
the applicable treaty and the Charter : para. 65. The Court also held
that the Minister’s surrender powers under the Extradition Act “should
be interpreted and applied . . . in light of Canada’s international
undertakings”: para. 54.
[251]
The Minister acts as a safety valve to preclude
extradition even where the formal legal requirements for committal appear to
have been met. As the Extradition Act makes clear, the Minister’s role
includes the protection of the liberty and human rights of the person sought
for extradition, which explains why the Minister “must comply with the Charter
on all matters incidental to surrendering a fugitive”: United States of
America v. Kwok, [2001] 1 S.C.R. 532, at para. 5; see also Németh,
at para. 70.
[252]
Parliamentary debates leading to the passage of
the revised Extradition Act in 1999 further indicate that limitations on
the Minister’s power to surrender include “humanitarian considerations”, and
that these limitations “provide an important safeguard for the person sought”:
Peter Adams, Parliamentary Secretary to Leader of the Government in the House
of Commons, House of Commons Debates, vol. 135, No. 162, 1st
Sess., 36th Parl., November 30, 1998, at p. 10591. The then-Minister of
Justice, Anne McLellan, confirmed that the revised Extradition Act “sets
out clearly, for the first time, a minister’s responsibilities and duties to
ensure that the human rights and fair treatment of the fugitive will be
safeguarded”: House of Commons Standing Committee on Justice and Human Rights, Evidence,
No. 096, 1st Sess., 36th Parl., November 4, 1998 (online), at 16:40. This
parliamentary intent was also confirmed by the Minister’s Parliamentary
Secretary, Eleni Bakopanos, who said that “the safeguards referred to in the [revised
Extradition Act ] are provided in addition to any protection under the
Canadian Charter of Rights and Freedoms which the person sought may
have”: House of Commons Debates, vol. 135, No. 135, 1st Sess.,
36th Parl., October 8, 1998, at p. 9006.
[253]
Section 44(1) of the Extradition Act sets
out the grounds on which the Minister must refuse to order surrender,
including if it would be “unjust or oppressive having regard to all the
relevant circumstances”. In Németh, this Court noted that
Parliament’s use of the mandatory language contained in s. 44 leaves the
Minister “no discretion” to depart from the grounds articulated in that
provision, even to give effect to a treaty obligation: para. 69. In addition to
the grounds set out in s. 44(1) of the Extradition Act , the Minister
must also refuse to order surrender where doing so would “shock the conscience”
of Canadians and thereby violate s. 7 of the Charter : Caplin v.
Canada (Justice), [2015] 2 S.C.R. 568, at para. 1.
[254]
Despite the inevitable overlap between the inquiries
under s. 44(1) of the Extradition Act and s. 7 of the Charter ,
their distinct and independent significance must be emphasized: Lake v.
Canada (Minister of Justice), [2008] 1 S.C.R. 761, at para. 24. Notably,
while s. 44(1) is not limited to conduct that would constitute a breach of the Charter ,
it is nonetheless the case that where surrender would be contrary to the
principles of fundamental justice, it will also be unjust and oppressive
within the meaning of s. 44(1) : Németh, at para. 71. Section 44(1) ,
however, allows the Minister to refuse surrender even where no Charter
breach is alleged or established: Fischbacher, at para. 39; Németh,
at para. 71. The Minister retains a residual discretion under s. 44(1) to
refuse surrender as being “unjust or oppressive” in view of the totality of the
circumstances, including but not limited to circumstances which would render
the surrender inconsistent with Charter principles: Fischbacher,
at para. 39.
[255]
The words “unjust” and “oppressive” are not
defined in the Extradition Act , but take their meaning from the
extradition context. Parliament has broadly worded s. 44(1) to require the
Minister to “hav[e] regard to all the relevant circumstances”, favouring a
broad interpretation of the provision. Moreover, as Cromwell J. made clear in Németh,
at para. 71, s. 44(1)(a) extends to preclude surrender where extradition
would not only breach the Charter rights of the person sought, but
extends to other circumstances where surrender would not amount to a Charter
breach: see also Fischbacher, at para. 39.
[256]
In United States of America v. Taylor
(2005), 216 B.C.A.C. 137, Finch C.J.B.C. explained that a surrender would be
“unjust” if it “would be undeserved, unfounded, or disproportionate in all the
circumstances”: para. 36. On the other hand, he defined the term “oppressive”
to mean “that the decision to surrender was made in disregard of the merits of
the case, was clearly unreasonable or that the Minister exercised his statutory
power arbitrarily, or in a way that overwhelmed the applicant’s efforts to
resist surrender”: para. 36. As he noted, “In applying these broad, indeed
somewhat subjective, tests one must ask to whom the applicant’s
surrender would appear to be unjust or oppressive, and why right thinking
Canadians would consider it to be so”: para. 37.
[257]
In deciding whether surrender would be unjust or
oppressive, regard must therefore be had to “all the relevant circumstances”: Extradition
Act, s. 44(1) (a). In Fischbacher, Charron J. explained that
the “relevant circumstances” for determining whether surrender is unjust or
oppressive will vary from case to case, and set out a list of non-exhaustive
considerations which may factor into the analysis:
Reaching a conclusion on surrender
requires the Minister to undertake a balancing of all the relevant
circumstances, weighing factors that militate in favour of surrender against
those that counsel against. The circumstances that will be “relevant” to a
surrender decision will vary depending on the facts and context of each
case. Some of these factors may include: any representations made by
the person sought on the question of surrender in accordance with s. 43(1) of
the Act, the conduct of the proceedings in the requesting country before and
after the request for extradition, the potential punishment facing the
individual if surrendered, humanitarian issues relating to the personal
circumstances of the individual, the timeliness and manner of prosecuting the
extradition proceedings in Canada, the need to respect the constitutional
rights of the person sought and Canada’s international obligations under the Treaty
and as a responsible member of the international community: see Bonamie,
Re, 2001 ABCA 267, 293 A.R. 201, at para. 54, and United States of
America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, at para. 34. [para. 38]
[258]
In Fischbacher, Charron J. further
explained that, in exercising his discretion to order or refuse surrender, the
Minister may also consider the law of the requesting state, including its
attendant penalty and the possible consequences the person sought may face:
para. 54. Reflecting the Minister’s duty to consider the totality of relevant
circumstances, the Minister must also “compare the likely sentence that would
be imposed in a foreign state with the likely sentence that would be imposed in
Canada”: R. v. Anderson, [2014] 2 S.C.R. 167, at para. 27
(emphasis deleted). Other cases have suggested that the potential
hardship to the person sought and the impact of surrender on his or her family
may also factor into the analysis: see, e.g., Taylor, at para. 39; Provost
v. Canada (Procureur général), 2015 QCCA 1172, at para. 50 (CanLII);
Kunze v. Canada (Minister of Justice) (2005), 209 B.C.A.C. 32; Canada
(Minister of Justice) v. Thomson, 2005 CanLII 5078 (Ont. C.A.); Savu v.
Canada (Ministre de la Justice), 2013 QCCA 554, at paras. 98-99 (CanLII).
[259]
Consistent with s. 44(1) ’s humanitarian purpose,
the scope of the Minister’s inquiry should not be unduly restricted,
particularly where the weakness in the requesting state’s case is evident and
serious hardship would face the individual if surrendered: United States of
America v. Lucero-Echegoyen (2013), 336 B.C.A.C. 188, at paras. 26 and 29; Canada
(Attorney General) v. Aziz (2013), 342 B.C.A.C. 305, at para. 63; United
States of America v. Doak (2015), 323 C.C.C. (3d) 219 (B.C.C.A.), at paras.
71-72. Animating the exercise of the Minister’s discretion is a persistent
concern that a person not be surrendered in circumstances that are unjust or
oppressive.
[260]
While it is not the role of the court judicially
reviewing the Minister’s surrender decision “to re-assess the relevant factors
and substitute its own view”, the decision “will not be rational or defensible
if he has failed to carry out the proper analysis”: Lake, at para. 41.
Reviewing courts must accordingly determine whether the Minister considered the
relevant facts and reached a defensible conclusion based on those facts: Lake,
at para. 41; see also Németh, at para. 10. In other words,
“[r]easonableness does not require blind submission to the Minister’s
assessment”: Lake, at para. 41. In my view, the Minister’s inadequate
consideration of the children’s best interests and his conclusions with respect
to the availability of the s. 285 defence rendered his decision to order the
mother’s surrender unreasonable.
[261]
In her submissions to the Minister, the mother
noted that the children fled from their abusive father and would face serious
risks of harm if they were returned to him. She highlighted the fact that the father
left the children to take care of themselves most of the time and that he was
physically and mentally abusive. Her submissions further made clear that this
abuse was the precise reason the children ran away from the home, leading them
to live in an abandoned house for over a week before contacting the mother.
According to the mother, if the children were forced back to the United States
or separated from her, they would either suffer additional abuse, or face the
absence of any parental figure.
[262]
Although the Minister turned his mind to the
mother’s submissions on these issues, the formalistic manner in which they were
analyzed does not reflect the kinds of considerations required in structuring
the exercise of discretionary administrative action implicating the interests
of children. To that effect, and while said in a different context, I agree
with LeBel J.’s comment in Agraira v. Canada (Public Safety and
Emergency Preparedness), [2013] 2 S.C.R. 559, that those
considerations include “such matters as children’s rights, needs, and best
interests” as well as “maintaining connections between family members”: para.
41. This is particularly true in light of the “[r]ecognition of the inherent
vulnerability of children [which] has consistent and deep roots in Canadian
law”: A.B. v. Bragg Communications Inc., [2012] 2 S.C.R. 567, at
para. 17 (emphasis in original). As L’Heureux-Dubé J. foundationally observed
in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817, the Minister should have “consider[ed] [the] children’s best
interests as an important factor, give[n] them substantial weight, and [been]
alert, alive and sensitive to them”: para. 75.
[263]
Yet because the Minister found that the
children’s interests were unclear to him, he was unsure of how to address them.
He therefore decided that the Director of Youth Protection would determine what
was in their best interests after the mother’s extradition and, if
necessary, place them in foster care.
[264]
The Minister’s uncertainty as to the children’s
best interests ought to have led him to err on the side of the children’s right
to be with a loving parent, not on the side of surrendering the mother to face
a criminal process where a key defence was unavailable. What is “best” for a
child is not always identifiable with crystalline clarity, but what is harmful
often is: Joseph Goldstein, Anna Freud and Albert J. Solnit, Beyond
the Best Interests of the Child (new ed. 1979). In light of all the
instability and trauma the children had experienced, it is obvious that what
would be least harmful for them would be to remain in Canada with their mother.
[265]
What the Minister considered instead was the
mother’s history of drug and alcohol use, leading to her loss of custody and
access. This history should not be denied, but neither is it of any particular
relevance in considering what she did in responding to what was obviously the
children’s desperate request or what her current relationship to the children
was. The question is not whether she was an ideal parent, but whether
her conduct in coming to her children’s rescue should deprive them of her care
and deprive her of her liberty for up to 15 years.
[266]
It is true, as the Minister noted, that
individuals cannot avoid criminal liability simply because it may have negative
consequences on their children. But the very charges the mother faces arose
because she acted in what she saw as her children’s best interests. The evidence
before the Minister unequivocally showed that the children fled from their
father’s home because he was physically and mentally abusive. That is why,
after years of enduring this abuse, they eventually contacted their mother for
assistance. She did not remove them from his home. In fact, the evidence
accepted throughout these proceedings is that the children ran away on their
own without either the assistance or knowledge of the mother.
[267]
The Minister appears to skate over both the harm
to which the children were subject while living with the father and the fact
that the mother’s apprehension of the children was clearly motivated by her
desire to rescue them from harm. As such, he essentially penalized the children
for escaping a situation of harm and reaching out to their mother for
assistance. Yet it is difficult to see what choices they — or she —
realistically had. He also penalized the mother for coming to the
assistance of her children instead of ignoring their entreaties. This amounts
to penalizing her for accepting her responsibility to protect the children from
harm.
[268]
There was extensive evidence in the committal proceedings about
the children’s strong relationship with their mother, including evidence that
the mother “has always taken good care” of them. This can also be inferred from
the fact that the children contacted her to rescue them from harm. In this
case, to offer a measure of stability after suffering years of harm, where the
very offence involves rescuing the children from a violent father, the children
should be permitted to remain in the care of the mother who put herself in
legal jeopardy to protect them, instead of relegated to foster care.
[269]
At the end of the day, there is little
demonstrable harm to the integrity of our extradition process in finding
it to be unjust or oppressive to extradite the mother of young children she
rescued, at their request, from their abusive father. The harm, on the other
hand, of depriving the children of their mother in these circumstances is
profound and, with respect, demonstrably unfair.
[270]
Between returning to the abusive household,
remaining in an abandoned home, or reuniting with their mother, the children
clearly felt they had no alternative. Rightly or wrongly, the children
evidently believed that taking such measures would be less harmful to their
well-being than remaining in their father’s abusive household. Should they have
done so? We can hardly judge them for taking desperate measures to escape
intolerable conditions placing them in harm’s way. Should the mother have
responded and assisted them? It is hardly realistic to expect a parent to do
otherwise.
[271]
The Minister was obliged to take into serious
consideration why the children contacted their mother for assistance. They had
suffered harm. They had no place to go. Reaching out to their mother was the
only realistic alternative for them. And responding to their pleas for safety
was the only realistic alternative for the mother.
[272]
None of this appears to have been acknowledged
in the Minister’s decision, which lacks any of the compassionate considerations
which are such a significant part of the Minister’s responsibilities at the
surrender stage.
[273]
Moreover, the Minister failed to address the
uncertainty of the father’s whereabouts, his almost complete lack of interest
in these proceedings and his indifference with respect to the interests of his
children. Between the period of December 29, 2010 and May 26, 2011, for
example, a social worker made 15 attempts to reach the father, leaving various
messages on his answering machine. The social worker reported that the father
only called back once to inquire into the judicial proceedings against the
mother, and his phone number was subsequently disconnected. She further stated
that the father never expressed the wish to have the children return to his
home.
[274]
If extradited, the mother could face up to 15
years imprisonment if convicted of the interference with custody charges. The
result of her having responded to the children’s pleas for assistance would, if
she were sent to the United States, risk depriving the children not only of
their mother who took them out of harm’s way, but of any parent
throughout their remaining childhood. Yet, the Minister makes no
reference to the impact of the surrender on the importance of maintaining
family unity. And his observation that the availability of foster care
adequately compensates for the mother’s potential imprisonment in Georgia
represents, with respect, an inexplicable rejection of the cornerstone of this
country’s child welfare philosophy, namely, to attempt whenever reasonably
possible to keep children and parents together.
[275]
No less problematic, in my view, is how the
Minister dealt with the mother’s s. 285 defence and the unavailability of an
analogous defence in Georgia. The Minister acknowledged both that s. 285
would be available to the mother on these facts if she were facing prosecution
in Canada, and that there was no s. 285-like defence in Georgia. Citing Schmidt,
Mellino and other case law, the Minister concluded that Canadian courts
have held that defences should be left for consideration by the requesting
state’s trial court. According to the Minister, the unavailability of an
analogous defence to s. 285 did not mean that the mother would receive an
unfair trial; on the contrary, in his view, she would have the opportunity to
challenge the prosecution’s case and present available defences and evidence.
[276]
With respect, the Minister’s position seems to
me to be inherently contradictory. Asserting that defences should be raised in
the requesting state, but at the same time acknowledging that no defence
analogous to s. 285 is available to the mother in Georgia, led the Minister to
unduly narrow his discretion. Section 44(1) (a) requires him to consider all
the relevant circumstances in deciding whether surrender would be unjust or
oppressive. Even if one were to accept that the requirements for double
criminality have been met, this does not relieve the Minister from his
responsibility to consider that a statutory defence that goes to the very heart
of the offence is available in Canada and not in Georgia. In my view, such a
consideration falls squarely within the Minister’s statutory safety valve
function at the surrender stage, and is therefore a necessary consideration
when discretion is exercised under s. 44(1) (a).
[277]
Limiting his assessment of the mother’s trial in
Georgia to whether it would be procedurally fair instead of whether it would be
unjust or oppressive to extradite her, sidesteps the proper analysis. As the
Criminal Lawyers’ Association (Ontario) submits, the Minister cannot ignore
substantive differences between the Canadian legal system and the foreign legal
system simply because the foreign system is otherwise procedurally fair. It is
true that the extradition process does not require that there be mirror
conformity between the requesting state’s criminal justice system and the
system in place in Canada: Kindler, at p. 844. However, given the
liberty interests at stake and the potential for criminal liability in
circumstances that may not attract punishment in Canada, it is not enough to
determine whether the trial in the requesting state will be procedurally
fair.
[278]
As Charron J. observed in Fischbacher,
“the conduct of the proceedings in the requesting country before and after the
request for extradition” may be a relevant factor in deciding whether to order
surrender: para. 38. The presence of a statutory defence in Canada going
directly to criminality where no analogous defence is recognized in the requesting
state is, on its face, the very sort of factor that makes surrender unjust or
oppressive. Surely, as our Court has held, if the Minister must compare the
likely sentence that would be imposed in the requesting state with the likely
sentence that would be imposed in Canada, he must also evaluate the likely
defences that can and cannot be raised in both countries: Anderson, at
para. 27. This does not require perfect symmetry between Canadian laws
and the laws of the requesting state. As McLachlin J. observed in Kindler,
the extradition process “must accommodate differences between our system of
criminal justice and the systems in place in reciprocating states”: p. 844.
[279]
That said, where a person sought for extradition
faces a consequence he or she would not face in this country because a
statutory defence is not recognized under the requesting state’s law, the basic
demands of justice mandate consideration of the implications of this fact. Such
an approach is consistent with this Court’s understanding of the important
liberty interests at stake in the extradition process. Extradition constitutes
a serious denial of liberty: Ferras, at para. 12. As a result,
“extradition practices have been tailored as much as possible for the
protection of the liberty of the individual”: United States of America v. Cotroni, [1989] 1 S.C.R. 1469, at p. 1490.
Extradition to a country that does not recognize a defence analogous to s. 285
is therefore an important consideration in the extradition process.
[280]
Moreover, as indicated in the portion of these
reasons dealing with the committal order, to the extent cases like Schmidt
and Mellino can be read to preclude consideration of defences in the
extradition context, this case is clearly distinguishable because it involves a
statutory defence which directly engages criminality, not a Charter or
procedural defence. In addition, unlike Schmidt and Mellino
where this Court suggested that the extradition judge has no jurisdiction to
deal with defences that could be raised at trial, it is beyond dispute
that the mother will not be able to raise a defence analogous to s. 285 before
the trial court in Georgia. And finally, unlike Schmidt and Mellino
which dealt with committal, this case is also an appeal from a surrender
decision, where the scope of the Minister’s role as an important safety valve
is far wider than that of the extradition judge, hence the words “unjust” and
“oppressive” and “all the relevant circumstances”. This injustice
to the mother is compounded by the serious consequences for the children if she
is extradited.
[281]
For all of these reasons, in my respectful view
the Minister’s decision to order the mother’s surrender was unreasonable.
[282]
I would accordingly allow the appeal with costs
to the mother throughout and order her immediate discharge.
Appeal
dismissed, Abella, Karakatsanis and Côté JJ. dissenting.
Solicitors
for the appellant: Grey Casgrain, Montréal; Clemente Monterosso, Montréal.
Solicitor
for the respondent: Attorney General of Canada, Montréal.
Solicitors
for the intervener the Criminal Lawyers’ Association (Ontario): John
Norris Barrister, Toronto.
Solicitors for the
intervener the British Columbia Civil Liberties Association: Hunter
Litigation Chambers, Vancouver; Michael Sobkin, Ottawa.