Schreiber v. Canada (Attorney General), 2007 FC 618

 

 

 

Date: 20070611

Docket: T-389-07

Citation: 2007 FC 618

Ottawa, Ontario, June 11, 2007

PRESENT:     The Honourable Mr. Justice Phelan

 

 

BETWEEN:

KARLHEINZ SCHREIBER

Applicant

and

 

THE ATTORNEY GENERAL OF CANADA,

THE SOLICITOR GENERAL OF CANADA,

AND THE COMMISSIONER OF THE RCMP

Respondents

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

I.          INTRODUCTION

[1]               Karlheinz Schreiber seeks judicial review of a number of acts by the RCMP, officials in the federal Department of Justice, and the respective Ministers (or those acting under their authority) over the years since 1995 in the context of an investigation and ultimately his extradition to Germany. The Applicant, through various types of relief sought in this Court, is hopeful of preventing his extradition. He has exhausted virtually all his avenues of relief.

 

[2]               Matters involving Mr. Schreiber’s extradition have been considered by the Ontario Superior Court sitting as extradition judge, by the Ontario Court of Appeal on three occasions - once in appeal and twice in judicial review, and by the Supreme Court of Canada twice (the latest leave application is pending).

 

[3]               The central legal issues are (1) whether the Federal Court has jurisdiction to consider this judicial review; (2) if it does, should this Court exercise its jurisdiction in regards to issues considered by the Ontario courts; and (3) if this Court does exercise its jurisdiction, should this application for judicial review be granted.

 

[4]               For the reasons to follow, this last ditch effort by the Applicant to prevent the enforcement of a Surrender Order, cast as an attack on the actions of officials of the Canadian government, but in reality a review of decisions of the Ontario Court of Appeal, cannot succeed. Section 57 of the Extradition Act (Act) gives the provincial courts of appeal the power to deal with the Applicant’s issues – which it has done. This Court cannot, or alternatively should not, interfere with these decisions.

II.         FACTS

[5]               Karlheinz Schreiber was born in Germany and became a Canadian citizen in 1982. He is the subject of an extradition request from Germany.

 

[6]               The Applicant was arrested in 1999 on a warrant issued by the Ontario Superior Court of Justice pursuant to the Act. He is wanted in Germany for the equivalent offences of tax evasion, fraud, writing forged documents, bribery and secret commissions.

 

[7]               After five years of motions, evidence and submissions before Justice Watt of the Superior Court of Ontario, the Applicant was committed for extradition on May 27, 2004. An Order of Committal was signed June 3, 2004, which the Applicant appealed to the Ontario Court of Appeal.

 

[8]               After the Applicant had made extensive submissions (300 pages of argument and 21 volumes of materials) to the Minister of Justice opposing his surrender to German authorities, on October 31, 2004, the Minister issued a Surrender Order and provided reasons for the Order.

 

[9]               The Minister’s Reasons are germane to this judicial review. The Minister considered the following issues (amongst others)

·                    sections 6 and 7 of the Charter;

·                    abuse of process including the use of questionable evidence arising from a dispute between German and Swiss authorities;

·                    bad faith including the unlawful interviewing of witnesses by the RCMP in Germany;

·                    denial of critical disclosure;

·                    whether extradition for fiscal offences and other matters violates the Canada-Germany Extradition Treaty and other laws and the absence of reciprocal extradition treatment;

·                    bias and reasonable apprehension of bias;

·                    misconduct regarding the extradition arrest; and

·                    further misconduct by the RCMP including the treatment of Stevie Cameron as a confidential informant.

 

[10]           The Applicant sought judicial review of the Minister’s October 31, 2004 Surrender Order. This judicial review was brought before the Ontario Court of Appeal pursuant to s. 57(2) of the Act.

 

[11]           On March 1, 2006 the Ontario Court of Appeal dismissed both the appeal of the Committal Order and the judicial review of the Minister’s Surrender Order. The Court of Appeal held that the Minister made no error in deciding to surrender Mr. Schreiber to Germany. The Supreme Court of Canada on February 1, 2007 denied leave to appeal the Court of Appeal’s March 1, 2006 decision.

 

[12]           The Applicant, while the leave to appeal proceedings were pending in the Supreme Court of Canada, applied to the Minister for a reconsideration of the Surrender Order. That application was denied on December 14, 2006.

 

[13]           This denial resulted in another judicial review application to the Ontario Court of Appeal pursuant to s. 57(2) of the Act.

 

[14]           The Ontario Court of Appeal dismissed the judicial review on May 9, 2007. It held that the Applicant’s surrender to Germany would not offend the Canadian sense of what is fair, right and just. Leave to appeal this latest decision is pending before the Supreme Court of Canada.

 

[15]           On March 7, 2007, the Applicant commenced these proceedings in the Federal Court. The application is cast as a judicial review of the actions of the Respondents from “January 1995 to the present as they relate to the fundamental rights and freedoms of the Applicant”.

 

[16]           The particular forms of relief sought are:

“(a)      an Order staying the Surrender Order of the Minister of Justice dated December 14, 2006 and extent to the present until such time as the Applicant’s lawsuit in Alberta has been tried;

 

(b)        an Order staying the Surrender Order of the Minister of Justice as a result of the egregious conduct and abuse of process of the Respondents, their servants, and employees;

 

(c)        an Order in the nature of Certiorari quashing and setting aside the decision of the Minister of Justice to surrender him to Germany;

 

(d)        a Declaration that the Respondents have breached the duties of procedural fairness and natural justice in relation to the manner in which the Applicant has been treated by the actions of the Respondents taken on behalf of both the Government of Canada and the Government of Germany;

 

(e)        a Declaration that the Applicant’s rights pursuant to the Chart(er) of Rights and Freedoms have been breached;

 

(f)         a Declaration that the conduct of the Respondents has been contrary to the fundamental tenets of Canadian law and jurisprudence and their actions have been, and continue to be, tainted as a result of conflicts of interest, an absence of impartiality, actual or perceived biases, and generally unreasonable and contrary to the laws of Canada;

 

(g)        habeas corpus; and

 

(h)        solicitor client costs.”

 

The purpose of this judicial review is to quash or stay the extradition order and the implementation of the Surrender Order.

 

[17]           In support of this application for judicial review is the affidavit of Mr. Schreiber which outlines a litany of complaints about the conduct of Canadian officials and Ministers in the pursuit of his extradition. The facts and issues covered and argued before this Court are similar, if not identical, to those raised before the Minister and described in paragraph 9 of these reasons.

 

[18]           In some respects the Applicant expands on his complaint about Canadian officials. One aspect is the inclusion of the International Assistance Group (IAG), a branch of the Department of Justice charged with assisting on extradition matters, within the web of abuse and Charter violations which the Applicant alleges.

 

[19]           The Applicant invokes the general supervisory power of this Court over federal decision makers’ conduct (and that of their subordinates) under s. 18 of the Federal Courts Act and the Court’s powers and duties to protect Charter rights.

 

III.       ANALYSIS

A.        Preliminary

[20]           The Respondent raised the issue of striking the judicial review because it was bereft of any possibility of success. The central theme of this position is that the Federal Court has no jurisdiction to supervise the decision of the Minister of Justice to order the surrender of the Applicant pursuant to s. 40 of the Act.

 

[21]           As this case was argued in its entirety, there is no point in dealing with what would have been a preliminary motion.

 

[22]           The Respondent asks that the Court strike out as respondents both the Solicitor-General and the Commissioner of the RCMP. If this Court had jurisdiction and was prepared to exercise that jurisdiction, it is not clear that either of these parties should be struck.

 

[23]           The Respondent further asks that various portions of Mr. Schreiber’s affidavit be struck because certain paragraphs have at least one or more of the following infirmities – hearsay, argument, opinion, immaterial and irrelevant.

 

[24]           While an applicant who challenges the “conduct” of government may require some leeway in pleading because a significant amount of evidence is only available from the government respondent through cross-examination, the Applicant in this case strayed far over the line between “leeway” and “license”.

 

[25]           However, rather than striking these portions of the affidavit, the Court can recognize the infirmities and discount or discard from its consideration those offending portions of the affidavit. Much of the offending evidence is contextual in nature and is given the weight it deserves.

 

B.         Jurisdiction

[26]           The Respondent contends that the Federal Court has no jurisdiction to entertain this judicial review because the power over judicial review is vested in the court of appeal of the relevant jurisdiction pursuant to s. 57(1) of the Act.

 

[27]           The Applicant has argued that s. 57(1) relates only to “decisions” of the Minister and not to “matters” as that term has been applied in decisions such as Krause v. Canada, [1999] F.C.J. No. 179 (Q.L.), where the term encompasses conduct or courses of action. The Applicant says that his Federal Court proceeding is in respect of conduct; therefore, a subject not covered by s. 57(1).

 

[28]           The Applicant points out that s. 17(6) of the Federal Courts Act provides that the Federal Court has no jurisdiction to entertain any proceeding in a “matter” where an Act of Parliament confers jurisdiction in respect of a “matter” on a court constituted or established by or under a law of the province.

 

[29]           It is my understanding that the Applicant’s argument is that since only “decisions” are vested under provincial courts of appeal jurisdiction, proceedings in respect of “matters” are not ousted from the Federal Court either under the Extradition Act or the Federal Courts Act.

 

[30]           Even if the Applicant is correct, and it is not clear that “matter” in s. 17(6) is not directed more at “subject-matter” rather than “conduct”, the Applicant’s real intent is to prevent the operation of the Minister’s decision to issue a Surrender Order. This is clear from the nature of the relief sought.

 

[31]           To accept the Applicant’s argument is to conclude that Parliament intended to bifurcate extradition proceedings such that decisions are dealt with by provincial courts of appeal but that the manner in which a decision is reached and the steps taken in furtherance of reaching a decision remain with the Federal Court.

 

[32]           Section 57 of the Act does not establish any such intent. Section 57(1) which commences with “Despite the Federal Courts Act …”, specifically excludes this Court. The section goes on to confer “exclusive original jurisdiction” on the provincial courts of appeal. The powers of a court of appeal in s. 57(6) are broad, encompass precisely what the Applicant seeks and are similar to this Court’s powers under s. 18.1(3) of the Federal Courts Act.

 

[33]           Moreover, s. 57(7) gives the courts of appeal the power to grant relief on the same grounds as this Court may under s. 18.1(4) of the Federal Courts Act.

 

[34]           Read as a whole, it is my view that the intention of the legislation was to cloth the provincial courts of appeal with Federal Court-like powers. The intent of Parliament is to have extradition judges and judicial review of Ministerial decisions consolidated in a single court to maintain consistency in the extradition process. The words used by Parliament are sufficient to fulfil this intent.

 

[35]           The Applicant admits that he is before this Court because this Court is the guardian of the Charter, an extradition judge’s role is too restrictive to address his issues, the Ontario Court of Appeal has rejected each of his cases, and now he is about to be surrendered to Germany. He “has nowhere else to go”.

 

[36]           The courts of appeal are also guardians of the Charter in their fields of jurisdiction, and the courts of appeal enjoy as broad rights of review as this Court. The other reasons given by the Applicant have nothing to do with this Court’s jurisdiction. This Court does not sit in review, as a court of last resort, over provincial courts of appeal any more than those courts of appeal can sit in review of this Court’s jurisdiction.

 

[37]           In my view, the Federal Court of Appeal’s conclusions in Froom v. Canada (Minister of Justice), 2004 FCA 352, although dealing with an “authority to proceed” and the powers of an extradition judge, are just as applicable to a surrender decision and to the powers of provincial courts of appeal. That Court’s conclusion is that the provincial courts have the requisite power to inquire into decisions of the Minister based on arbitrariness, bad faith, improper motives and irrelevant considerations.

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] 1 S.C.R. 587, United States of America v. Gillingham, (2004) 239 D.L.R. (4^th) 320 (B.C.C.A.).

 

[38]           This Court has held that it does not have jurisdiction to hear an application for judicial review of a Ministerial surrender decision. (See Waldman v. Canada (Minister of Citizenship and Immigration), 2003 FC 1326)

24.              The judgment of Teitelbaum J. in Garcia v. Canada (Minister of Justice) [1997] F.C.J. No. 453 at para.25, although pre-dating our present statutory regime on these matters, appears to me to be clear authority that this Court does not have jurisdiction to hear an application for judicial review of a surrender decision of the Minister of Justice under the Extradition Act “or issue interim relief pursuant to that application.” That this is still the law would appear to be obvious from the wording of section 57(1) of our present Extradition Act.

(underlined for emphasis)

 

[39]           While the Applicant has attempted to couch this judicial review as dealing with conduct, he seeks no relief against those whose conduct (other than the Minister of Justice) is alleged to violate the laws. The reality is that he wishes to stop the operation of the Minister’s surrender decision and all of his grounds, arguments and facts are inextricably linked to that decision.

 

[40]           Therefore, I conclude that this Court does not have jurisdiction to grant the relief sought. However, if the Court does have some jurisdictional link to this case, the Court must then consider whether it should exercise its discretion to grant relief.

 

C.        Court Discretion

[41]           There may be some aspects of extradition proceedings or some aspects of conduct which fall to this Court. It would be by virtue of a lacuna in the general operation of s. 57 of the Act or some form of concurrent jurisdiction.

 

[42]           Assuming, without agreeing that this Court could deal with some or all of the aspects of the Applicant’s judicial review, the Court must consider whether it should decline to exercise that jurisdiction in the face of findings by the Ontario Court of Appeal.

 

[43]           Again, in Froom, the Federal Court of Appeal addressed this issue specifically even as it relates to the surrender stage of extradition proceedings.

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.

 

[44]           The Applicant’s attack on the conduct of the Respondents is based on circumstances which were raised or could have been raised with the Ontario Court of Appeal. Most of the matters raised here were dealt with by the Ontario Court of Appeal. The Applicant obviously recognized the Ontario Court of Appeal’s jurisdiction to deal with these matters.

 

[45]           It would be inappropriate for this Court to disregard the conclusions of the Ontario courts. To do so raises issues of forum shopping, inconsistency and multiplicity of proceedings which issues were recognized by the Supreme Court in Reza v. Canada, [1994] 2 S.C.R. 394 to be relevant to a Court declining jurisdiction.

 

[46]           There is an adequate alternative remedy to this Court exercising such jurisdiction as it may have. That alternative remedy need not be identical nor perfect so long as it is adequate. (See Froom at para. 12)

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).

 

[47]                          As referred to in paragraph 44, the Ontario Court of Appeal has the necessary jurisdiction to deal with all of the grounds relied upon by the Applicant. To the extent that there is any merit to the argument that relevant facts were not disclosed to the Court, the Applicant has not sought to reopen or otherwise deal with that matter before the relevant court.

 

[48]                          Based upon the decisions in Froom and in Coffey v. Canada (Minister of Justice), 2005 FC 554, even the extradition judge, whose role in extradition is very specific, has the authority to deal with improper actions by the government and potential breaches of the Charter.

 

 

[49]                          The Applicant places great reliance on this Court’s role in protecting Charter rights but he does not argue that the extradition judge or the provincial courts of appeal cannot consider arguments that his Charter rights have been infringed.

[50]                          In exercising the Court’s discretion not to consider the Applicant’s judicial review, a further factor is the delay in bringing these proceedings. The time frame covered by the Applicant’s pleadings stretches back to 1995.

 

[51]           Not only is this judicial review, in reality, an attack on a “decision or order” to which the 30‑day rule to bring judicial review in this Court is applicable, even if this is a “matter”, judicial review must be brought in a “reasonable time”. There is no reasonable explanation for delay – the Applicant has known all the critical facts and has had recourse to the Ontario courts. He could have brought these proceedings years ago.

 

[52]           As this Court has concluded (a) that the proper jurisdiction for this “matter” has been and is the Ontario Court of Appeal and (b) that even if it has jurisdiction, it will not exercise its discretion to grant judicial review, the Court will not address arguments on the merits (if any) of this judicial review.

 

IV.       CONCLUSION

[53]           The Court must conclude that this is a last minute – last gasp attempt to prevent the enforcement of the Minister’s Surrender Order. This judicial review is a back door effort to seek review of the decisions of the Ontario Court of Appeal – an effort which this Court will not sanction.

 

[54]           For these reasons, this judicial review will be denied with costs.
JUDGMENT

THIS COURT ORDERS AND ADJUDGES that this application for judicial review will be denied with costs.

 

 

 

“Michael L. Phelan”

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-389-07

 

STYLE OF CAUSE:                          KARLHEINZ SCHREIBER

 

                                                            and

 

                                                            THE ATTORNEY GENERAL OF CANADA et al

 

 

 

PLACE OF HEARING:                    Halifax, Nova Scotia

 

DATE OF HEARING:                      June 6, 2007

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          Phelan J.

 

DATED:                                             June 11, 2007

 

 

 

APPEARANCES:

 

Mr. Robert Hladun, Q.C.	FOR THE APPLICANT
Mr. James Shaw	FOR THE RESPONDENTS

 

SOLICITORS OF RECORD:

 

HLADUN & COMPANY Barristers & Solicitors Edmonton, Alberta	FOR THE APPLICANT
MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Edmonton, Alberta	FOR THE RESPONDENTS