Docket: T-962-15
Citation:
2015 FC 1266
Ottawa, Ontario, November 12, 2015
PRESENT: The
Honourable Madam Justice Gagné
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Docket: T-962-15
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BETWEEN:
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GEORGE WILCOX
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Applicant
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and
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THE MINISTER OF
FOREIGN AFFAIRS AND
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THE MINISTER OF
JUSTICE AND
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ATTORNEY
GENERAL OF CANADA
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Respondents
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JUDGMENT AND REASONS
[1]
I am seized of two motions: the first, brought by
the Respondents pursuant to Rule 4 of the Federal Court Rules,
SOR/98-106 [Rules], seeks to dismiss the application filed by the Applicant on
June 9, 2015, for judicial review of a decision dated February 2, 1976 by the
then Secretary of State for External Affairs, Allan MacEachen. This decision is
that of ratification of the Treaty on Extradition between the Government of
Canada and the Government of the United States of America, 3 December 1971,
Can TS 1976/3 (entered into force 22 March 1976) [Extradition Treaty]. The
second motion, brought by the Applicant under subsection 18(1) of the Federal
Courts Act, RSC 1985, c F-7, is for an interim stay of the surrender order
issued against him by the Minister of Justice on March 4, 2014, pursuant to
section 40 of the Extradition Act, SC 1999, c 18 [Act], until the application
for judicial review before this Court is heard on the merits.
[2]
Therefore, should I grant the motion to dismiss,
the Applicant’s motion would necessarily be disposed of.
[3]
The Respondents move to dismiss the application
for judicial review on the following grounds: (i) it is time-barred by virtue
of the limitation period prescribed under subsection 18.1(2) of the Federal
Courts Act; (ii) the determination of the validity of a treaty is a
political matter reserved for the executive and is thus non-justiciable; (iii)
in any event, subsection 57(1) of the Act ousts the jurisdiction of the Court
over extradition matters and this application for judicial review is an
indirect attack on the surrender order upheld by the British Columbia Court of
Appeal [BCCA] and; (iv) in the alternative, if ever this Court has residual discretion
to exercise jurisdiction, it should decline to exercise it because the
appropriate recourse would have been to seek remedies before the BCCA.
[4]
As for the Applicant, he argues that it is precisely
because he has exhausted all his remedies before the courts of inherent
jurisdiction that, in accordance with Wilson v Canada (Justice), 2012 FC
280 [Wilson], this Court should exercise residual jurisdiction to deal
with the validity of the treaty – an issue arising from the exercise of
ministerial discretion. Essentially, he argues that the application for judicial
review is exclusively within the jurisdiction of this Court as an exception to
section 57 of the Act, in the same way as is an Authority to Proceed [ATP]
issued under section 15 of the Act.
[5]
As regards the interim stay pending this Court’s
review of the underlying application, the Applicant does not provide detailed
written submissions on whether the test in RJR-Macdonald Inc v Canada
(Attorney General), [1994] 1 S.C.R. 311, is met. Rather, he discusses the
merits of the application before this Court and focuses on the issue of whether
this Court has jurisdiction to hear the application.
[6]
For the reasons discussed below, I am of the
view that the Respondents’ motion to dismiss should be granted on the ground
that this application is outside the jurisdiction of this Court.
I.
Background
[7]
The Applicant is a Canadian citizen and is
wanted in the United States for having been convicted in absentia of two
offences in the state of Arizona, which he committed between 2007 and 2008. He
is also wanted for the prosecution of two other offences, as the jury was
unable to reach a verdict on those other counts.
[8]
On November 13, 2003, the Minister of Justice
issued an ATP under section 15 of the Act authorizing the Attorney General of Canada
to initiate extradition proceedings on behalf of the United States.
[9]
On January 22, 2013, the extradition judge
Cullen of the Supreme Court of British Columbia [BCSC] ruled on six preliminary
motions or applications brought by the Applicant and found, amongst other
things, that it was not in the province of the extradition judge to review allegations
of the Minister’s non-compliance with the Extradition Treaty.
[10]
On August 13, 2013, Cullen ACJ issued an order
of committal pursuant to paragraphs 29(1)(a) and 29(1)(b) of the Act
for prosecution of two counts corresponding to the Canadian offence of sexual
interference contrary to section 151 of the Criminal Code, and for
imposition of a sentence with respect to two other counts of the same offence,
as set out in the ATP [Committal Order].
[11]
The Applicant filed a Notice of Appeal or
Application for Leave to Appeal in respect of the judge’s Committal Order.
[12]
Meanwhile, on November 11, 2013, the Applicant
made submissions to the Minister in respect of his potential surrender to the
United States and asked to be discharged. Among several other arguments, the
Applicant pleaded that the Extradition Treaty was never properly ratified by
Canada and that it was therefore invalid.
[13]
On March 4, 2014, the Minister informed the Applicant
that he signed warrants ordering for his surrender pursuant to section 40 of
the Act [Order for Surrender]. He responded to the Applicant’s submission that
his surrender should be refused on the basis that the Extradition Treaty was
not ratified (p 139, Respondents’ Motion Record):
…[y]ou argue that, although the Treaty,
“purported to have come into force on 22 March 1976” was ratified by the U.S.
Senate after “long debate and modifications.” neither the Treaty nor its
supplements have ever been ratified in Canada by Parliament by Order-in-Council
or by any other democratic process.
You further argue that, in 1971, an
Order-in-Council allowed the Secretary of State for External Affairs, Mitchell
Sharp, to sign the draft Treaty “subject to ratification.” You submit
that the Treaty was not ratified by any democratic body before the Secretary
of State for External Affairs “purported of his own initiative to ratify the
treaty by signing a four line “instrument of ratification” in 1976. You submit
that this action has no force of law without actual ratification and there is
no record of an Order of Ratification in the Canadian archives, at the
Department of Foreign Affairs International Trade and Development, in Justice
libraries, or anywhere else.
It is for the executive to maintain
Canada’s extradition relationship and to determine which agreements are in
force (See e.g. Attorney General (Canada) v Kerfoot, 2013 BCSC 122; Czech
Republic v Ganis, 2006 BCCA 542; Kingdom of Thailand v Karas, 2001
BCSC 72; Czech Republic v Moravek, 2004 MBCA 174; United States of
America v Wilson, 2011 BCCA 96; McVey v United States of America,
[1992] 3 S.C.R. 475).
Neither Canada nor the United States, the
two contracting parties to the Treaty, has ever called into question its
existence….the fact that both Canada and the United States have maintained this
treaty relationship for more than 25 years fully supports the conclusion that
the Treaty is in force. In addition, a reading of the published
agreement in the Canada Gazette of April 3, 1976, confirms that
Instruments of Ratification were exchanged between Canada and the United States
on March 22, 1976, in Ottawa, Ontario.
I also note that, when the Treaty
was ratified, it was referentially implemented into domestic law by the Extradition
Act, R.S.C. 1970 c. E-21 (the Extradition Act (1970)), which was in
force at the time. There was no Parliamentary process for ratification, nor was
this a requirement. Once the Treaty came into force, the Extradition
Act (1970) operated to immediately implement Canada’s international
obligations under the Treaty (Re Stuckey (1999), 181 DLR (4th)
144 (BCSC)).
[14]
On March 24, 2014 the Applicant filed for
judicial review of the Minister’s Order for Surrender under section 57 of the
Act, with the BCCA.
[15]
On February 4, 2015, the BCCA considered and
dismissed both the appeal of the Committal Order and the judicial review of the
Minister’s Order for Surrender.
[16]
The application for leave to appeal to the
Supreme Court of Canada was dismissed without reasons on June 11, 2015.
[17]
However, two days prior, on June 9, 2015 the Applicant
filed before this Court an application for judicial review of the February 2,
1976 decision of the Secretary of State of External Affairs, Allan MacEachen, to
ratify the Extradition Treaty, seeking the following relief:
− declaratory
relief that the Extradition Treaty remains unratified and is of no force and
effect;
− an injunction or writ of prohibition preventing the
Minister from removing the Applicant from Canada until this matter is resolved
in this Court;
− a writ of prohibition also prohibiting the Minister from
using the unratified Treaty until the time as it is ratified;
− a writ of quo warranto demanding to know the
justification of the Secretary of State for External Affairs for endorsing the
unratified Treaty as “ratified” when he knew or ought to have known that the
Treaty was unratified and his predecessor had been informed in his presence
that the draft treaty was “subject to ratification”.
II.
Issues
[18]
The motions presently before the Court raise the
following issues for consideration:
(1)
Is the application barred due to the expiry of
the limitation period?
(2)
Is the matter under review justiciable?
(3)
Does this Court have the jurisdiction to hear
the application and grant the relief requested?
(4)
If answered in the affirmative, should an
interim stay be granted to the applicant?
III.
Analysis
[19]
As I am of the view that issues (2) and (3)
above are determinative, I will limit my reasons accordingly.
Justiciability
[20]
Article 18 of the Extradition Treaty states that
“this treaty shall be ratified and the instrument of
ratification shall be exchanged at Ottawa as soon as possible”. On
December 11, 1975, the Governor in Council authorized the Secretary of State
for External Affairs to execute and issue, on behalf of Canada, an instrument
of ratification and to cause the instruments to be exchanged in Ottawa (Exhibit
2 filed at the hearing). On February 2, 1976, the Secretary of State signed the
instrument of ratification and a Protocol of exchange was signed by the parties
on March 22, 1976 (Exhibit 1 filed at the hearing). The Extradition Treaty
entered into force the same day and was subsequently published in the Canada
Gazette.
[21]
The Applicant contends before this Court, as he
did in his submissions to the Minister, that since the Extradition Treaty was
not democratically ratified by Canada, it is invalid and the Order for
Surrender could not stand.
[22]
In Chateau-Gai Wines Ltd v Institut National
des Appellations d’Origine des Vins et Eaux-de-Vie, [1975] 1 S.C.R. 190 at 199
[Chateau-Gai Wines], the Supreme Court of Canada held that “the question of whether the treaty is in force, as opposed
to what its effect should be, is … wholly within the province of the public
authority…”. A similar finding was made by the BCCA in Ganis v Canada
(Minister of Justice), 2006 BCCA 543 [Ganis]. The following
paragraphs are of note:
[17] The case
law is clear that "barring statutory provision, the task of dealing with
international treaty obligations is for the political authorities, and is
performed by the Ministers and departments in the course of fulfilling their
appropriate mandates": McVey v. United
States of America, [1992] 3 S.C.R. 475 (S.C.C.), at 519.
[…]
[20] In my
view, however, the existence of a treaty is not a justiciable question and
therefore it is not open to this Court to review the Minister's finding on any
standard.
[21] In
determining whether a subject matter is justiciable, the court must decide
"whether the question is purely political in nature and should, therefore,
be determined in another forum or whether it has a sufficient legal component
to warrant the intervention of the judicial branch": Reference re Canada Assistance Plan (Canada),
[1991] 2 S.C.R. 525 (S.C.C.), at 545.
[22] In this
case, the evidence discloses that Canada and the Czech Republic knew the
agreement relied upon, and conducted themselves as acting pursuant to it. It
should also be remembered that extradition does not require a formalized
treaty. Rather, it can be carried out pursuant to a specific agreement designed
to address a 'one-off' situation, or in the absence of an agreement but where
the requesting state is named in the Act
as an extradition partner: see ss. 2, 3, 9 and 10 of the Act. These other routes are consistent
with the principle that extradition relationships are within the realm of the
executive and may arise in a variety of ways.
[23] Matters
of foreign affairs, including treaty-making, are part of the Crown's
Prerogative powers. While this classification alone will not always put a matter
beyond the scope of judicial review there are some powers which, because of
their nature and subject matter, will not be amenable to the judicial process: Black v. Canada (Prime Minister) (2001),
54 O.R. (3d) 215 (Ont. C.A.). In Council of Civil Service Unions v. Minister
for Civil Service (1984), [1985] 1 A.C. 374, [1984] 3 All E.R. 935
(U.K. H.L.) (cited with approval by Laskin J.A. for the Court in Black , supra,
at para. 36), Lord Roskill identified the Prerogative powers related to
treaty-making as falling within that category. Apart from Charter issues which might arise on the
facts of another case, and apart from the exception below relating to
jurisdiction, it appears that the question of a treaty's validity is purely
political, and that there is no legal component in these circumstances that
would warrant the court's interference.
[24] Our
courts are sometimes asked to interpret a treaty's provisions and determine its
domestic effect; that task, involving legal questions, is within the
judiciary's expertise. A treaty's existence,
however, is not an ordinary question of law but a highly political matter as
between the executive of two contracting states. The Supreme Court of Canada
has recognized this distinction, holding that "whether a treaty is in
force, as opposed to what its effect should be, [is] wholly within the province
of the public authority": Chateau-Gai
Wines Ltd. v. Institut national des appellations d'origine des vins &
eaux-de-vie (1974), [1975] 1 S.C.R. 190 (S.C.C.), per Pigeon J. at
199.
[25] If a
treaty's existence is called into question by one of the contracting parties,
that dispute might be for resolution at the political level, or failing that,
in some other forum. The existence of a treaty, however, cannot be for
adjudication in a domestic court, in a dispute between an individual and one of
the contracting states. Such a process might have untold political and
diplomatic consequences, well beyond the issue of whether one individual should
be extradited. A ruling on a treaty's existence or validity could not properly
be made in the absence of both parties to it.
[26] As the
Treaty's existence is not a justiciable issue in our Courts it is not open to
us to review the Minister's determination that the Treaty validly exists and
applies to the appellant…
[23]
In both his written and oral submissions, the
Applicant confuses the question of the justiciable nature of the validity of an
international treaty and that of the jurisdiction of the extradition court. He
contends that in his application for judicial review of the Minister’s Order
for Surrender before the BCCA, he chose not to pursue the issue of whether the
Extradition Treaty was validly ratified, as it and other extradition courts
have stated on numerous occasions that the validity of a treaty was not a justiciable
question. That would explain why he exhausted his remedies before the
extradition courts prior to raising the issue before this Court.
[24]
However, that is not a matter of the respective
jurisdictions of the extradition courts and that of this Court but rather a
matter of separation of powers between the executive and the judiciary.
[25]
Ratification of a treaty expresses a state’s
intention to be bound be that treaty. As it was a condition precedent to the
entry into force of the Extradition Treaty, the Applicant contends that the
purported ratification is based on false representation and that the treaty is
null ab initio. The Applicant adds, without much explanation, that this
constitutes “an inexcusable violation of international
law and a breach of the principle of the rule of law” (para 30 of the
Applicant’s memorandum of facts and law).
[26]
All those questions are political in nature and
they concern the executive, not this Court or any court. I see no distinction
between the facts of this case and those arising in Chateau-Gai Wines and
Ganis.
Jurisdiction
[27]
I agree with the Respondents that the Applicant’s
application for judicial review is an indirect attack on the Minister’s Order
for Surrender, although framed as an attack on the actions of government officials,
taken over 39 years ago. As such, section 57 of the Act ousts the jurisdiction
of the Court to judicially review such a decision (Schreiber v Canada
(Attorney General), 2007 FC 618, aff’d 2008 FCA 147; Waldman v Canada (Minister
of Citizenship and Immigration), 2003 FC 1326). I also agree with the
Respondents that Wilson, above does not stand as authority for the claim
that the Federal Court retains a residual jurisdiction in all extradition
cases. In Wilson, just as in Froom v Canada (Minister of Justice),
2004 FCA 352 [Froom], this Court was asked to judicially review an ATP
issued by the Minister. Justice Noël found that the provincial court of appeal
had exclusive jurisdiction to review an order of surrender by the Minister
pursuant to the exception provided for under section 57 of the Act; however, no
such exception was provided for in relation to the judicial review of a
decision to issue an ATP (Wilson at paras 11, 17-18).
[28]
Unlike Wilson and Froom, in this
case the Order for Surrender is specifically at the heart of the Applicant’s
recourse. The question of the treaty’s ratification or so-called
“non-compliance” was raised by the Applicant before the Minister in relation to
his decision to issue an Order for Surrender and the Order for Surrender does
address the Applicant’s argument that the Extradition Treaty would be invalid
for lack of ratification. I agree with the Minister that there was no reason
for the Applicant to choose not to pursue the issue, and consequently not to
seek remedies, on judicial review of that decision before the BCCA
[29]
Even when this Court has residual jurisdiction
over an extradition matter - which is not the case in the present file - an
applicant is supposed to exhaust his or her remedies in that forum since this
Court has consistently declined to exercise any residual jurisdiction in favour
of the provincial courts.
[30]
Therefore, I am of the opinion that this Court does
not have jurisdiction over the matter raised by the Applicant’s application for
judicial review, whether or not residual.
IV.
Conclusion
[31]
For the above reasons, the Respondents’ motion
to dismiss the application for judicial review will be granted. As a
consequence, there is no need for this Court to rule on the Applicant’s motion
for a stay of the Order for Surrender until his application for judicial review
is dealt with on the merits.
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