A-799-96
CORAM: DENAULT J.A.
MacGUIGAN J.A.
DESJARDINS J.A.
BETWEEN:
RAYMOND
DESFOSSÉS
Appellant
-
and -
ALLAN ROCK, MINISTER OF
JUSTICE CANADA
Respondent
REASONS FOR JUDGMENT
OF THE COURT
(Delivered from the Bench at Montreal, Quebec,
on Wednesday, June 25, 1997.)
MacGUIGAN J.A.
In
our view the principles in extradition cases have been already laid down by the
Supreme Court of Canada in recent decisions. For instance, Cory J. put it this
way in Idziak v. Canada, [1992] 3 S.C.R. 631, 659-60:
Parliament chose to give
discretionary authority to the Minister of Justice.... In administrative law
terms, the Minister's review should be characterized as being at the extreme
legislative end of the continuum of administrative decision-making....
The extradition hearing is clearly judicial in its nature while the actions of
the Minister of Justice in considering whether to issue a warrant of surrender
are primarily political in nature.... The Act simply grants to the Minister a
discretion as to whether to execute the judicially approved extradition by
issuing a warrant of surrender.
S.
7 of the Charter, like the common law, imposes the additional element,
as McLachlin J. pointed out in Kindler v. Canada [1991] 2 S.C.R. 779,
856 that for intervention the Minister must have erred in law or exercised his
discretion upon an inadmissible basis. Put another way, La Forest J. in Canada
v. Schmidt, [1987] 1 S.C.R. 500, 523 stated that "judicial
intervention must be limited to cases of real substance."
We
are all in general agreement with the decision of the Motions Judge, Dubé J.
While we have some doubts as to whether the capias or warrant of arrest
could be correctly said "not to be an essential ingredient under the
Treaty" [Appeal Book I, 16], we agree with the following statement
by Dubé J. [Appeal Book, I, 16]:
Faced with an indictment from a
grand jury, the Minister could not have refused to surrender the fugitive to
the requesting state merely because the second capias was not before the
extradition judge. Whether or not the superseding indictment had the legal
effect of rendering the first capias null and void, as claimed by Mr.
Larrinaga, is for the legal authorities of the requesting state to decide and
not for the Canadian Minister of Justice.
It
does not appear to us that this exercise of ministerial discretion is a matter
of real substance or a discretion marked by an error of law or exercised upon
an inadmissible basis. Articles 11(3) and 9(3) of the Treaty ought to be
interpreted liberally so as to serve the Treaty's purposes.
The
appeal must therefore be dismissed.
(Mark R. MacGuigan)
J.A.
A-799-96
CORAM: DENAULT J.A.
MacGUIGAN J.A.
DESJARDINS
J.A.
BETWEEN:
RAYMOND
DESFOSSÉS
Appellant
-
and -
ALLAN ROCK, MINISTER OF
JUSTICE CANADA
Respondent
Heard at Montreal, Quebec, on Wednesday, June 25,
1997.
Judgment rendered from the Bench at Montreal,
Quebec, on Wednesday, June 25, 1997.
REASONS FOR JUDGMENT OF THE COURT: MacGUIGAN J.A.
A-799-96
BETWEEN:
RAYMOND
DESFOSSÉS
Appellant
-
and -
ALLAN ROCK, MINISTER OF
JUSTICE CANADA
Respondent
REASONS FOR JUDGMENT OF
THE COURT
Email this Content