[1] The appellant Arthur Froom has appealed, and the Minister of Justice has cross-appealed, an order of a Judge of the Federal Court dated November 7, 2003, dismissing an application for judicial review of an authority to proceed issued under section 15 of the Extradition Act, S.C. 1999, c. 18. The Federal Court decision is reported as Froom v. Canada (Minister of Justice) (F.C.), [2004] 2 F.C.R. 154, (2003) 242 F.T.R. 1, (2003), 8 Admin. L.R. (4th) 1.

[2] Section 15 of the Extradition Act was enacted in 1999 as part of a complete revision of the extradition process, which was intended to make the procedure simpler and more expeditious. The Extradition Act and its history are well and fully described in the Judge's reasons. At this stage it is necessary to highlight only two of the characteristics of the statutory scheme.

[3] First, the new Extradition Act, like its statutory predecessors, gives the provincial superior and appellate courts jurisdiction over all judicial functions under the Extradition Act. That reflects a recognition of the experience and expertise of the judges of the provincial superior and appellate courts in matters of criminal law. Only a judge of a provincial superior court may act as an extradition judge (sometimes referred to as a committal judge). Only a provincial appellate court may hear an appeal from the decision of an extradition judges. Only a provincial appellate court may hear an application for judicial review of a decision of the Minister to surrender a person sought to be extradited.

[4] Second, section 15 of the Extradition Act makes the Minister responsible for identifying the equivalent Canadian offences, which must be named on the authority to proceed.

[5] The authority to proceed against Mr. Froom reads as follows:

The Minister of Justice authorizes the Attorney General of Canada to proceed before the Superior Court of Justice to seek an order for the committal of Arthur Kissel aka Arthur Froom who is being sought for prosecution by the UNITED STATES OF AMERICA. The Canadian offences which corresponds [sic] to the alleged conduct are:

• conspiracy to commit fraud contrary to sections 380(1) and 465(1)(c) of the Criminal Code of Canada;• fraud contrary to section 380(1) of the Criminal Code of Canada;

• conspiracy to launder the proceeds of crime contrary to sections 462.31 and 465(1)(c) of the Criminal Code of Canada; and

• laundering the proceeds of crime contarty [sic] to section 462.31 of the Criminal Code of Canada.

Dated at Ottawa, Ontario this 3^rd day of July, 2001

[Signature]

Barbara Kothe, Counsel

International Assistance Group

for the Minister of Justice of Canada

[6] The grounds for Mr. Froom's application for judicial review may be summarized as follows: (a) the Minister had not complied with the relevant extradition treaty; (b) the authority to proceed is a nullity because it lacks sufficient particulars; (c) the issuance of the authority to proceed is an abuse of process because of delay or because the Crown is also pursuing deportation proceedings; and (d) the issuance of an authority to proceed must be performed personally by the Minister and cannot be delegated.

[7] The Minister opposed Mr. Froom's application on the merits. The Minister also argued that, although section 18 of the Federal Courts Act, R.S.C. 1985, c. F-7, gives the Federal Court the jurisdiction to deal with an application for judicial review of an authority to proceed, the Federal Court should always decline to exercise that jurisdiction because the Extradition Act provides an adequate alternative remedy. Counsel for the Minister also points out the obvious, which is that if the Federal Court does not decline jurisdiction in such cases, the inevitable result will be multiple proceedings, forum-shopping, inconsistent results and delay.

[8] The conclusions of the Judge on the question of the jurisdiction of the Federal Court are set out in parts (a) and (b) of her "Summary of Conclusions" (paragraph 148 of her reasons):

(a) The Federal Court has jurisdiction to review the decision of the Minister of Justice to issue an authority to proceed under section 15 of the Extradition Act, at the outset of the extradition process, in circumstances where strong grounds exist for arguing that the Minister acted arbitrarily, in bad faith, or that the Minister was motivated by an improper motive, or motivated by irrelevant considerations;

(b) The mere characterization of an application for judicial review as one to quash the authority to proceed is not sufficient. Judicial review in the Federal Court will not be available where the underlying grounds of review disclose arguments that fall squarely within the jurisdiction of the extradition judge, or the Minister, or where the grounds deal with arguments in areas where the law is settled ... .

[9] The Judge went on to consider Mr. Froom's grounds for his application for judicial review. She found that none of the grounds, except the question of improper delegation, met the threshold in (a) and (b) above. She found that the question of delegation met that threshold, but that it is permissible for the Minister to delegate the authority to issue an authority to proceed. She therefore dismissed Mr. Froom's application for judicial review.

Motion to adjourn the appeal hearing

[10] The hearing of this appeal was scheduled for a full day on Monday, October 18, 2004 in Toronto. Mr. Froom sought an adjournment on short notice because of the illness of one of his counsel. As counsel for the Minister objected to the adjournment, Mr. Froom's other counsel appeared at the hearing to speak to the motion to adjourn. However, he indicated that he would be prepared to speak to Mr. Froom's motion to quash the cross-appeal, and also to make submissions on the issue of the jurisdiction of the Federal Court to deal with Mr. Froom's application for judicial review. The Court allowed the adjournment motion in part. Consideration of the merits of Mr. Froom's application for judicial review was deferred. Counsel were directed to make oral submissions on the motion to quash the cross-appeal and on the jurisdiction issue.

The motion to quash the cross-appeal

[11] In the cross-appeal, the Crown seeks a declaration that the Federal Court should decline to deal with this application for judicial review, although no such declaration was sought from the Judge hearing the application. In my view, the Crown's cross-appeal is an attempt to challenge part of the reasons for her decision, not the decision itself. A cross-appeal is not necessary or appropriate in these circumstances because any argument in support of the order under appeal may be raised in response to the appeal (see, for example, Roberts v. Canada, (1999), 247 N.R. 350 (F.C.A.) at paragraph 147, and paragraph 341(1)(b) of the Federal Court Rules, 1998, SOR/98-106). I would grant the motion to quash the Minister's cross-appeal.

Whether the Federal Court should decline to exercise its jurisdiction

[12] It is well established that the Federal Court has the discretion to decline to exercise its judicial review jurisdiction if the applicant has available an adequate alternative remedy: Fast v. Canada (Minister of Citizenship and Immigration) (2001), 288 N.R. 8, (2001) 41 Admin. L.R. (3d) 200 (F.C.A.); Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3. In considering whether to decline jurisdiction, the test is whether the alternative remedy is adequate, not whether it is perfect. The decision to decline or refuse to decline jurisdiction is discretionary, and cannot be reversed on appeal unless the Judge has considered irrelevant factors, failed to consider relevant factors, or reached an unreasonable conclusion: Canadian Pacific v. Matsqui, at paragraph 39 (per Lamer C.J., as he then was, on this point writing for the majority).

[13] Reza v. Canada, [1994] 2 S.C.R. 394 is instructive on this point. In Reza, the issue was whether the Ontario Court of Appeal was correct in reversing the decision of Ferrier J., then a judge of the Ontario Court (General Division), to stay an application for a declaration that certain provisions of the Immigration Act, R.S.C. 1985, c. I-2 were unconstitutional. At the time, the applicant was the subject of proceedings in the Federal Court dealing with those provisions. The Supreme Court of Canada reversed the decision of the Ontario Court of Appeal, substantially adopting the dissenting reasons of Abella J.A. (as she then was). The Court describes as follows the portion of her reasons dealing with the factors to be taken into account in considering the exercise of the discretion to stay proceedings (at page 403):

... In her view there was no obligation on the part of the Ontario Court (General Division) to hear every case presented for adjudication in which there is a constitutional issue raised. She held that the discretion to decline to hear such a case surely exists when not only does the Federal Court have concurrent jurisdiction to deal with the matter, it also has expertise and experience in immigration law, administrative law and Federal Court procedure, the core issues of the respondent's application. She also found it significant that the Federal Court has an exclusive mandate over immigration matters and found the principles from Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 O.R. (2d) 253 (dealing with habeas corpus), were applicable. Abella J.A. noted that the failure to decline to exercise jurisdiction would raise concerns over forum-shopping, inconsistency and multiplicity of proceedings.

[14] A similar result was reached, for similar reasons, in R. v. Zundel, (2004) 241 D.L.R. (4th) 362, (2004) 186 O.A.C. 196 (application for leave to appeal dismissed on October 21, 2004, [2004] S.C.C.A. No. 316). In that case, the Ontario Court of Appeal dismissed an appeal of the decision of Senior Justice Benotto to stay proceedings in an application for a writ of habeas corpus ad subjiciendum with certiorari in aid. At the time, the applicant was in detention under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, because he was the subject of a security certificate which, if found to be reasonable, could lead to his deportation. A designated Judge of the Federal Court had commenced the statutory proceeding required to determine the reasonableness of the security certificate. Those proceedings included periodic review of the applicant's detention. The Ontario Court of Appeal concluded that, even though the Superior Court of Justice is the only court that can grant an application for habeas corpus, the statutory procedure under the Immigration and Refugee Protection Act is not inappropriate or less advantageous than the habeas corpus jurisdiction of the Ontario court.

[15] In this case, the Judge concluded that she should exercise her jurisdiction to deal with Mr. Froom's application for judicial review, but only to the extent that there were strong grounds for arguing that the Minister acted arbitrarily or in bad faith, or that the Minister was motivated by an improper motive or irrelevant considerations. She reached that conclusion largely because of two considerations, stated at paragraph 58 of her reasons. The first consideration was her conclusion that Parliament could not have intended, even when streamlining and modernizing the extradition process, that the decision to issue an authority to proceed would not be reviewable, because if that were the intent, it would violate the rule of law.

[16] The second consideration was the Judge's conclusion that it is settled law that the extradition judge has no jurisdiction to review an authority to proceed. In support of that conclusion, she cites United States of America v. Kucan (2001), 151 O.A.C. 131, Federal Republic of Germany v. Shreiber, [2000] O.J. No. 2618, United States of America v. Sagarra (2003), 226 Nfld. & P.E.I.R. 321 (Nfld C.A.), Thailand v. Karas, 2001 BCSC 72.

[17] I agree with the Judge that, in principle, the Federal Court should always decline jurisdiction to deal with an application for judicial review of an authority to proceed if the grounds for the application disclose arguments that are squarely within the jurisdiction of the extradition judge, because in such cases an adequate alternative remedy would be available from the extradition judge. The same is true of any matter that is within the jurisdiction of the Minister at the surrender stage, or the provincial appellate court on judicial review of the surrender decision, or any matter that, under the applicable extradition treaty or the Extradition Act, must be deferred to the foreign court if the person sought for extradition is surrendered.

[18] I also agree that an extradition judge does not have the jurisdiction to conduct a judicial review of the authority to proceed, or to decide anew whether the Minister was correct to conclude that the statutory conditions for the issuance of an authority to proceed are met.

[19] However, I am unable to agree with the Judge that it necessarily follows that an extradition judge lacks the jurisdiction to provide an adequate remedy if the issuance of the authority to proceed is tainted by a significant impropriety on the part of the Minister in the issuance of the authority to proceed. On the contrary, it is my view that an extradition judge who is presented with evidence that the decision of the Minister to issue an authority to proceed was made arbitrarily or in bad faith, or was motivated by improper motives or irrelevant considerations, has the requisite jurisdiction to grant an appropriate remedy under the Canadian Charter of Rights and Freedoms or under the inherent jurisdiction of the superior courts to control their own process and prevent its abuse: U.S.A. v. Cobb, [2001] S.C.R. 587,United States of America v. Gillingham, (2004) 239 D.L.R. (4th) 320 (B.C.C.A.).

[20] In fact, a review of the record of this case, the dozens of cases cited by both counsel, and the written and oral submissions of counsel, discloses not a single example of a potential challenge to the validity of an authority to proceed that could not be adequately remedied by an extradition judge or by a provincial appellate court, given the jurisprudence that has developed since the order under appeal was issued. The scope of remedies available to extradition judges, and provincial appellate courts sitting on appeal from extradition warrants or on judicial review from the Minister's surrender decisions, is not as narrow as it appeared to be when the Judge was dealing with Mr. Froom's application for judicial review.

[21] For example, in United States of America v. Helrich, (2004) 183 C.C.C. (3d) 565 (B.C.S.C.), Groberman J. entertained an application to terminate extradition proceedings on the ground that the authority to proceed was signed by a person who was not authorized to sign it. He recognized the limitations on his statutory jurisdiction, but he reasoned that he would be acting within those limitations if, upon being satisfied that the authority to proceed was signed by someone without the requisite authority, he decided to terminate the proceedings on the basis that the authority to proceed was a nullity.

[22] In U.S.A. v. Sagarra, (2004) 233 Nfld. & P.E.I.R. 181 (Nfld. C.A.), issues relating to the validity of the request for extradition, and thus the validity of the authority to proceed, were considered in the context of an application for judicial review of a surrender order.

[23] And it is suggested by way of obiter dictum in United States of America v. Saad (2004), 237 D.L.R. (4th) 623 (Ont.C.A.), that an authority to proceed may be quashed by an extradition judge as a remedy under subsection 24(1) of the Charter if it is insufficient to provide adequate notice of the case faced by the person sought to be extradited.

[24] I would add only one comment on whether, as a matter of law, the Minister's discretion to issue an authority to proceed can be delegated. The Judge concluded that it is open to the Minister to delegate that authority. I agree with her, substantially for the reasons she gave. I note, however, that if she had declined to deal with that point, the extradition judge could have done so: United Kingdom v. Woolley, [2003] O.J. No. 3805 (QL) (Ont. S.C.J.), and United States of America v. Helrich (cited above).

[25] I conclude that the Judge should have declined to exercise her jurisdiction to consider Mr. Froom's application for judicial review of the authority to proceed, and should have dismissed his application on that ground.

Conclusion

[26] I would grant Mr. Froom's motion to quash the Minister's cross-appeal, and I would dismiss the appeal without reconvening the hearing to consider the merits of the application. I would grant the Crown the costs of the appeal, and I would grant Mr. Froom costs in respect of the motion to quash the cross-appeal.

"Karen R. Sharlow"

J.A.

"I agree

A.M. Linden"

"I agree

J. E. Sexton"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-570-03

STYLE OF CAUSE: ARTHUR FROOM

Appellant

and

MINISTER OF JUSTICE

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: OCTOBER 18 , 2004

REASONS FOR JUDGMENT: SHARLOW J.A.

CONCURRED IN BY: LINDEN J.A.

SEXTON J.A.

DATED: OCTOBER 21, 2004

APPEARANCES:

Gregory Lafontaine FOR APPELLANT

Dale Yurka FOR RESPONDENT

Mr. Joseph Cheng

SOLICITORS OF RECORD:

Gregory Lafontaine FOR APPLICANT

Barrister & Solicitor

Toronto, Ontario

FOR RESPONDENT

Morris Rosenberg

Deputy Attorney General of Canada

Department of Justice

Toronto Ontario

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Froom v. Canada (Minister of Justice), 2004 FCA 352

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2004 FCA 352