Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 SCR 761

                                                 SUPREME COURT OF CANADA

Between:

Talib Steven Lake

Appellant

and

Canada (Minister of Justice)

Respondent

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

______________________________

Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761, 2008 SCC 23

Talib Steven Lake                                                                                                              Appellant

v.

Canada (Minister of Justice)                                                                                          Respondent

Indexed as:  Lake v. Canada (Minister of Justice)

Neutral citation:  2008 SCC 23.

File No.:  31631.

2007:  December 6; 2008:  May 8.

Present:  McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for ontario

Constitutional law — Charter of Rights  — Mobility rights — Right to remain in Canada — Extradition — Whether Minister of Justice’s decision to surrender fugitive to U.S. breached his mobility rights — Canadian Charter of Rights and Freedoms, s. 6(1) .

Extradition — Surrender — Minister of Justice surrendering fugitive to U.S. — Whether extradition unjustifiably infringed fugitive’s mobility rights — Whether Minister erred in his assessment of Cotroni factors — Whether Minister failed to provide adequate reasons for surrender — Canadian Charter of Rights and Freedoms, s. 6(1) .

Extradition — Judicial review of Minister’s order — Standard of review — Minister of Justice surrendering fugitive to U.S. — Whether reasonableness standard applies to Minister’s decision to order surrender of fugitive when fugitive’s rights under Canadian Charter of Rights and Freedoms  engaged — If so, whether Minister’s decision was reasonable — Extradition Act, S.C. 1999, c. 18, s. 57 .

In 1997, the appellant committed a number of offences in Canada related to trafficking crack cocaine and also sold crack cocaine to an undercover Ontario Provincial Police officer in Detroit, Michigan.  The appellant was charged in Canada with six offences, including conspiracy to traffic in crack cocaine, but he was not charged with trafficking cocaine in relation to the Detroit transaction.  The appellant pled guilty to the charges against him.  At the sentencing hearing, Crown counsel indicated that he agreed with the joint recommendation for a sentence at the low end of the range with respect to these types of offences because the appellant faced a strong likelihood of additional conviction and sentencing in the U.S.  The appellant had received concurrent sentences of one to three years of imprisonment.  After the appellant served his Canadian jail sentences, the U.S. requested his extradition to stand trial in that country in relation to the Detroit transaction.  The appellant was committed for extradition and, in 2005, the Minister of Justice ordered his surrender.  The Court of Appeal dismissed an application for judicial review of the Minister’s decision.

Held:  The appeal should be dismissed.

The Minister’s reasons for his decision to surrender the appellant were sufficient to allow the appellant to understand the basis for the decision and the reviewing court to assess the validity of the decision.  The Minister is required to give the appellant reasons for his decision and to respond to any submissions made by the appellant; however, the Minister is not required to provide a detailed analysis for every Cotroni factor.  The Cotroni factors do not have to be given equal weight and nothing precludes a conclusion that a single factor is determinative in a particular case. Although the locus delicti of the foreign offence is not always determinative, there was nothing unreasonable about the Minister’s conclusion in this case that no other Cotroni factor outweighs the fact that the appellant’s conduct occurred in the U.S.  [25] [30] [46] [48]

Section 6(1)  of the Canadian Charter of Rights and Freedoms  is prima facie infringed by a decision to surrender a Canadian citizen, but the infringement can generally be justified under s. 1  of the Charter .  Judicial assessment by a court of appeal of the Minister’s decision to surrender a fugitive is a form of administrative law review under s. 57  of the Extradition Act and the applicable administrative law standard is reasonableness.  The Minister’s superior expertise in relation to Canada’s international obligations and foreign affairs is relevant to the review of his assessment of whether an extradition is justified.  The legal threshold for finding that a surrender violates s. 6(1)  of the Charter  is evidence of improper or arbitrary motives for the decision not to prosecute the fugitive in Canada.  This leaves room for considerable deference to the Minister.  The fact that the Minister is not empowered to grant constitutional remedies does not determine the applicable standard.  The assessment of whether a surrender violates s. 7  of the Charter  similarly involves balancing factors for and against extradition to determine whether extradition would shock the conscience.  The Minister must balance the individual’s circumstances and the consequences of extradition against such factors as the seriousness of the offence for which extradition is sought, the importance of meeting Canada’s international obligations, and the need to ensure that Canada is not used as a safe haven from justice. The Minister’s decision is largely a political decision and falls at the extreme legislative end of the continuum of administrative decision making.  Interference with a Minister’s decision should be limited to exceptional cases of real substance.  [22] [26] [34] [36‑39]

According deference to the Minister’s assessment of the constitutional validity of his decision to surrender a fugitive does not unacceptably attenuate judicial review.  The reviewing court’s role is to determine whether the Minister’s decision falls within a range of reasonable outcomes.  This requires examining whether the Minister considered the relevant facts and reached a defensible conclusion based on those facts. The Minister’s conclusion should be upheld by a reviewing court unless it is unreasonable.  This approach reflects the fact that the Minister’s assessments under ss. 6(1)  and 7  of the Charter  involve fact‑based balancing tests.  The Minister is in the best position to weigh the relevant factors.  [40‑41]

The Minister’s conclusion that the appellant was not prosecuted and sentenced in Canada for the Detroit transaction was not unreasonable.  The appellant was not charged with the substantive offence of trafficking in relation to the transaction and the charge of conspiracy to traffic did not subsume the substantive offence of trafficking.  The sentencing judge made no reference to the charge in the U.S. at the sentencing hearing.  Crown counsel sought a reduced sentence for the convictions in Canada in light of the likelihood that the appellant would be convicted and punished in the U.S. for the Detroit transaction.  The Minister’s deference to the U.S. owing to the fact that the Detroit transaction occurred within its territory provides a sufficient basis for concluding that the decision to surrender the appellant, including the decision that the extradition would not violate s. 6(1)  of the Charter , was reasonable.  [44-45] [48]

Cases Cited

Explained:  United States of America v. Kwok, [2001] 1 S.C.R. 532, 2001 SCC 18; not followed:  Stewart v. Canada (Minister of Justice) (1998), 131 C.C.C. (3d) 423; United States of America v. Gillingham (2004), 184 C.C.C. (3d) 97; United States of America v. Maydak (2004), 190 C.C.C. (3d) 71; United States of America v. Kunze (2005), 194 C.C.C. (3d) 422; Hanson v. Canada (Minister of Justice) (2005), 195 C.C.C. (3d) 46; United States of America v. Fordham (2005), 196 C.C.C. (3d) 39; Ganis v. Canada (Minister of Justice) (2006), 216 C.C.C. (3d) 337; referred to:  United States of America v. Cotroni, [1989] 1 S.C.R. 1469; Canada v. Schmidt, [1987] 1 S.C.R. 500; United States v. Allard, [1987] 1 S.C.R. 564; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; Bonamie, Re (2001), 293 A.R. 201; United States of Mexico v. Hurley (1997), 35 O.R. (3d) 481; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; United States of America v. Taylor (2003), 175 C.C.C. (3d) 185; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Beare, [1988] 2 S.C.R. 387; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1; Sheppe v. The Queen, [1980] 2 S.C.R. 22; United States of America v. Jamieson, [1996] 1 S.C.R. 465; United States of America v. Whitley (1994), 94 C.C.C. (3d) 99, aff’d [1996] 1 S.C.R. 467; Ross v. United States of America (1994), 93 C.C.C. (3d) 500, aff’d [1996] 1 S.C.R. 469.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , ss. 1 , 6(1) , 7 .

Extradition Act, R.S.C. 1985, c. E‑23, s. 9(3).

Extradition Act , S.C. 1999, c. 18 , ss. 25 , 43(1) , 44(1) , 47 (a), 49 , 57(2) , 57(7) .

Federal Courts Act , R.S.C. 1985, c. F‑7 , s. 18.1(4) .

Treaties and Other International Instruments

Treaty on Extradition Between Canada and the United States of America, Can. T.S. 1976 No. 3, Art. 4.

APPEAL from a judgment of the Ontario Court of Appeal (Laskin, Armstrong and MacFarland JJ.A.) (2006), 212 C.C.C. (3d) 51, 145 C.R.R. (2d) 156, [2006] O.J. No. 3485 (QL) (sub nom. United States of America v. Lake), dismissing an application for judicial review from a surrender order made by the Minister of Justice.  Appeal dismissed.

John Norris, for the appellant.

Robert J. Frater and Jeffrey G. Johnston, for the respondent.

The judgment of the Court was delivered by

LeBel J. —

I.  Introduction

[1]     The appellant Talib Steven Lake, a dual American and Canadian citizen, faces extradition to the United States of America to stand trial on a charge of unlawfully distributing nearly 100 grams of crack cocaine in the city of Detroit, Michigan.  He was committed for surrender after an extradition hearing, and the Minister of Justice ordered his surrender.  Mr. Lake appeals to this Court from the Ontario Court of Appeal’s decision dismissing an application for judicial review of the Minister’s surrender order. He contends that extradition would unjustifiably infringe his rights under s. 6(1)  of the Canadian Charter of Rights and Freedoms . He argues that the Minister erred in his assessment of the factors set out by this Court in United States of America v. Cotroni, [1989] 1 S.C.R. 1469, and in his conclusion that extradition was preferable to prosecution in Canada. He adds that the Minister failed to provide adequate reasons as to why extradition was preferred.

[2]     This appeal raises two central issues. First, what is the appropriate standard to be applied by courts in reviewing a decision by the Minister to order surrender? Second, in light of that standard, should the Minister’s decision be set aside in this case? In connection with these issues, the appellant also contends that the Minister did not provide adequate reasons for ordering his surrender.  He argues that while deference is generally owed to a decision by the Minister to order surrender, where an individual’s Charter  rights are engaged, the appropriate standard of review is correctness. The respondent submits that, according to the jurisprudence of this Court, the Minister’s assessment of a fugitive’s Charter  rights is also entitled to deference. The nature of the Minister’s decision requires him, even when considering a fugitive’s Charter  rights, to weigh competing factors, many of which include foreign policy considerations in which the Minister has superior expertise. Heightened scrutiny and interference by the judiciary has the potential to seriously disrupt the extradition regime, which engages Canada’s international obligations and serves as an important tool in the suppression of crime.

[3]     In my view, the Minister provided sufficient reasons for his decision to order the appellant’s surrender. That decision was reviewable on a standard of reasonableness, and it was reasonable. I would therefore dismiss the appeal.

II.  Background

[4]     In 1997 the appellant was charged in Windsor, Ontario with a series of offences related to cocaine trafficking. The Crown alleged that at the time, he was a U.S. citizen residing in Detroit.  The charges were laid as a result of an undercover operation of the Windsor unit of the O.P.P. Drug Enforcement Branch.  Mr. Lake became known to one of the investigators, Constable Ralph Faiella, as a result of a meeting between Constable Faiella and the appellant’s cousin, Aaron Walls, in Windsor. In August 1997, Mr. Walls, a lifetime resident of Windsor, offered to sell Constable Faiella crack cocaine, which he said Mr. Lake would bring from Detroit. The officer agreed and a meeting was arranged. At the meeting, Constable Faiella was introduced to Mr. Lake and paid him C$1,700 in exchange for 25 grams of crack cocaine.

[5]     Subsequently, as a result of earlier meetings, Constable Faiella accepted an invitation to play golf with Mr. Walls and Mr. Lake. He exchanged telephone numbers with Mr. Lake, who indicated that he would be happy to sell him several ounces of cocaine for $1,625 per ounce. They agreed to contact each other at a later date.

[6]     On September 18, 1997, Mr. Lake and Constable Faiella made arrangements over the phone for a four-ounce transaction. Mr. Lake instructed the officer to meet him in front of Kinko’s Restaurant in Detroit the following Monday, September 22, 1997, at 11:00 a.m. The Federal Bureau of Investigation was informed, and it agreed to provide and monitor a body pack device and to provide additional surveillance. The transaction was intercepted and recorded by the F.B.I. The total weight of the cocaine purchased by Constable Faiella was later determined to be approximately 99.2 grams.

[7]     Constable Faiella participated in another transaction with Mr. Walls and Mr. Lake involving the sale of 96.5 grams of crack cocaine at Mr. Walls’ Windsor residence in October 1997. On December 8, 1997, he telephoned Mr. Lake and set up a transaction for another four ounces of cocaine the following day. He met Mr. Walls and another man at a Windsor convenience store, where both men were immediately arrested. A search warrant was then executed at the Walls residence, and when the police arrived, Mr. Lake was in the backyard with another man and was seen to be placing something at the base of a fence. Mr. Lake was arrested, and the item seized next to the fence was found to be a plastic bag containing 65 grams of crack cocaine.

[8]     The appellant was charged with six offences in relation to the above transactions. One of the charges was that he had conspired with Aaron Walls to traffic in a controlled substance between September 11 and September 22, 1997. The appellant was not, however, charged with the substantive offence of trafficking in relation to the Detroit transaction. He pled guilty on all charges.

A. Sentencing Hearing

[9]     At the sentencing hearing before Ouellette J. of the Ontario Court (General Division), counsel made a joint submission consisting of an agreed statement of facts and a recommendation that Mr. Lake be sentenced to a total of three years in prison. Crown counsel indicated that the motivating factor in his agreeing to a three-year sentence, which he acknowledged to be “on the low end of the range with respect to these types of offences”, was that he had recently received a copy of an indictment against the appellant issued in the United States District Court, Eastern District of Michigan, for the offence of trafficking in cocaine allegedly committed on September 22, 1997. Given the compelling evidence against the appellant, Crown counsel was of the view that Mr. Lake faced a strong likelihood of conviction in the United States on this charge and would therefore likely serve time there in addition to his sentence on the Canadian charges. At the time, although the appellant claimed to be a Canadian citizen by virtue of the fact that his mother had been born in Canada, he could not offer any proof of his Canadian citizenship and it was expected that deportation proceedings would take place upon conclusion of his sentence.

[10] The appellant was sentenced to a total of three years’ imprisonment, in addition to the eight months he had spent in pre-trial custody.  At some point, he was able to establish his Canadian citizenship, and he settled in Windsor upon his release.

B. Extradition Request and Minister’s Reasons for Surrender

[11] On May 5, 2003, after Mr. Lake had served his Canadian jail sentence, the United States requested that he be extradited to stand trial on the trafficking offence. On June 30, 2003, the Minister issued an authority to proceed. On May 31, 2004, Mr. Lake was committed for extradition. His counsel made submissions to the Minister, arguing against surrender on several grounds. However, the Minister ordered Mr. Lake’s surrender on February 28, 2005.

[12] In his reasons, the Minister stated that the competent prosecutorial authority had, after considering the documentary evidence provided by the American authorities as well as the factors set out by this Court in Cotroni, decided that prosecution of Mr. Lake in Canada was not warranted. Although the Minister indicated that he would not interfere with this exercise of prosecutorial discretion, he nevertheless went on to consider whether the decision to prefer extradition over prosecution in Canada was consistent with Mr. Lake’s rights under s. 6(1)  of the Charter . Given that the transfer of cocaine was alleged to have taken place in Detroit, the Minister concluded that Canada did not have jurisdiction to prosecute the offence. Even if some form of prosecution in Canada were possible for this offence, he would have yielded to the superior interest of the United States in protecting its own public and maintaining public confidence in its laws and criminal justice system through prosecution. In the Minister’s opinion, surrender would not unjustifiably infringe Mr. Lake’s rights under s. 6(1)  of the Charter .

[13] The Minister also considered whether he should deny surrender on the basis that Mr. Lake had already been convicted and sentenced for the conduct, and the offence, for which he was sought in the United States. He decided that although the Canadian and American charges arose from the same investigation and involved overlapping conduct, they were separate and distinct and concerned two different wrongs. Ordering Mr. Lake’s surrender therefore would not violate Art. 4 of the Treaty on Extradition Between Canada and the United States of America, Can. T.S. 1976 No. 3, or s. 47 (a) of the Extradition Act , S.C. 1999, c. 18 . The Minister added that Crown counsel had taken the American indictment into account in agreeing to a reduced sentence and that Ouellette J. had accepted that Mr. Lake would likely face further prosecution. He concluded that Mr. Lake had not already been sentenced for the conduct underlying the American charge.

[14] The Minister decided that, despite the delay between the U.S. indictment and the formal request for Mr. Lake’s extradition, this case did not amount to one of the “clearest of cases” that would justify ignoring Canada’s obligations under the Treaty. He noted that the delay between the end of Mr. Lake’s Canadian sentence and the request was only two years, and that Mr. Lake was aware of the indictment at the time of his Canadian sentencing hearing and could have turned himself in at any time in order to deal with the charge expeditiously. There was no suggestion that the delay had affected the possibility that Mr. Lake would receive a fair trial in the United States or his ability to make full answer and defence. The Minister also observed that the mandatory 10-year minimum sentence Mr. Lake would face if convicted in the United States would not “shock the conscience” of Canadians, nor would it be unjust or oppressive in light of the seriousness of the allegations against him. Nor would Mr. Lake’s personal circumstances justify refusing surrender. According to the Minister, while it was commendable that Mr. Lake was supporting his common law spouse and their children in Windsor, this fact did not amount to a compelling or overriding circumstance that outweighed the importance of ensuring that Canada was not used as a safe haven by fugitives from justice.

C. Judicial History _ Ontario Court of Appeal (2006), 212 C.C.C. (3d) 51

[15] On a judicial review application to the Court of Appeal, the appellant argued that the Minister had erred in concluding that surrender would not infringe his s. 6(1) mobility rights, and that the Minister’s reasons for so concluding were inadequate. The appellant added that the minimum sentence he would face upon conviction in the United States was arbitrary and disproportionate and that his surrender therefore violated his rights under both s. 7  of the Charter  and s. 44(1) (a) of the Extradition Act .  On September 1, 2006, the Court of Appeal dismissed the appellant’s application for judicial review.

[16] Laskin J.A., for a unanimous court, agreed that the Minister had a duty to give adequate reasons for his surrender order. Such reasons should explain why the surrender order was made and should be sufficient to permit the reviewing court to determine whether the Minister applied the proper principles and fairly considered any submissions against surrender. In this case, although the Minister’s reasons were brief, Laskin J.A. concluded that they were adequate.

[17] Further, Laskin J.A. found no reason to interfere with the Minister’s conclusion that the appellant’s rights under s. 6(1) would not be unjustifiably infringed by a decision to order his surrender. In making this assessment, the Minister was required to apply the correct legal test, but his weighing of the factors relevant to that test was entitled to deference. Though the Minister had erred in concluding that Canada had no jurisdiction to prosecute Mr. Lake for the substantive offence of trafficking, this error was unimportant given that he had gone on to conclude that even if some form of prosecution in Canada was in fact possible, the United States had a greater interest in prosecuting Mr. Lake. Contrary to the appellant’s submission, the Minister is not required to refer expressly to all the Cotroni factors. Citing this Court’s decision in United States of America v. Kwok, [2001] 1 S.C.R. 532, 2001 SCC 18, Laskin J.A. concluded that the Minister’s decision would be upheld if it was “clearly reasonable”. In deferring to the greater interest of the United States in prosecuting Mr. Lake, the Minister’s decision met this threshold requirement.

[18] Regarding the mandatory minimum sentence, Laskin J.A. noted that the test under s. 7  of the Charter  is not whether the sentence is arbitrary; arbitrariness may be a valid consideration but it is not, on its own, determinative. Rather, to infringe s. 7, the foreign sentence must “shock the conscience” (Canada v. Schmidt, [1987] 1 S.C.R. 500, at p. 522) or be “simply unacceptable” (United States v. Allard, [1987] 1 S.C.R. 564, at p. 572). Under s. 44(1) (a) of the Extradition Act, the sentence must be “unjust” or “oppressive”.  A mandatory 10-year minimum sentence for distributing nearly 100 grams of a lethal drug is not so shocking or unjust as to warrant judicial intervention. The appellant had also argued that the sentence would be disproportionate given that courts generally impose concurrent sentences for a conviction on a substantive offence and a conviction on conspiracy to commit that offence. He submitted that he would effectively be serving consecutive sentences for the offences in the instant case. In Laskin J.A.’s view, however, proportionality is relevant only if the sentence is so extreme that it offends what is fair and just. He considered the sentence faced by the appellant to fall far short of that standard, particularly given that the U.S. indictment had been taken into account at Mr. Lake’s sentencing hearing in Canada.

III. Analysis

[19] In his appeal to this Court, the appellant argues that the Minister’s decision should be set aside solely on the basis that extradition would unjustifiably infringe his rights under s. 6(1)  of the Charter . He submits that none of the important objectives of extradition would be advanced by a decision to order his surrender. In particular, he argues that the Minister erred in concluding that Canada did not have jurisdiction to prosecute the offence and that he has in fact already been prosecuted and sentenced in Canada for the very conduct underlying the U.S. indictment. The appellant adds that the Minister failed to consider the factors weighing against surrender and that the Minister’s reasons were therefore insufficient. He contends that the Minister’s decision should be reviewed on a correctness standard and that, in light of these alleged errors, the Minister’s decision was incorrect and must be set aside.

A. Issues

[20] The issues to be resolved in this appeal are (1) the appropriate standard of review for the Minister’s decision when a fugitive’s Charter  rights are engaged and (2) whether, in light of that standard, the Minister’s decision should be upheld or set aside. As mentioned above, a related issue is whether the Minister provided sufficient reasons for his decision.  Before we consider the standard, it will be necessary to review the nature of the extradition process and its status under the Charter .

B. Process of Extradition From Canada

[21] The process of extradition from Canada has two stages:  a judicial one and an executive one. The first stage consists of a committal hearing at which a committal judge assesses the evidence and determines (1) whether it discloses a prima facie case that the alleged conduct constitutes a crime both in the requesting state and in Canada and that the crime is the type of crime contemplated in the bilateral treaty; and (2) whether it establishes on a balance of probabilities that the person before the court is in fact the person whose extradition is sought. In addition, s. 25  of the Extradition Act , S.C. 1999, c. 18  (formerly s. 9(3) of the Extradition Act, R.S.C. 1985, c. E-23), empowers the committal judge to grant a remedy for any infringement of the fugitive’s Charter  rights that may occur at the committal stage: Kwok, at para. 57.

[22] After an individual has been committed for extradition, the Minister reviews the case to determine whether the individual should be surrendered to the requesting state. This stage of the process has been characterized as falling “at the extreme legislative end of the continuum of administrative decision-making” and is viewed as being largely political in nature: Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, at p. 659. Nevertheless, the Minister’s discretion is not absolute. It must be exercised in accordance with the restrictions set out in the Extradition Act, as well as with the Charter .

[23] Section 44(1)  of the Extradition Act compels the Minister to refuse surrender when he is satisfied that

44. (1) . . .

(a)  the surrender would be unjust or oppressive having regard to all the relevant circumstances; or

(b)  the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons.

[24] Although a detailed discussion on the nature of the relationship between s. 44(1)  of the Extradition Act and s. 7  of the Charter  will not be necessary for the purposes of this appeal, it is evident that similar considerations may often apply to both these provisions and that the protections they afford overlap somewhat. Where surrender would be contrary to the principles of fundamental justice, it will also be unjust and oppressive: Bonamie, Re (2001), 293 A.R. 201 (C.A.). Where extradition is sought for the purpose of persecuting an individual on the basis of a prohibited ground, ordering surrender would be contrary to the principles of fundamental justice: United States of Mexico v. Hurley (1997), 35 O.R. (3d) 481 (C.A.), at pp. 496-97.

[25] Section 43(1)  of the Extradition Act provides that an individual who has been committed for extradition may make submissions against surrender to the Minister and the Minister must consider them before making his decision. If the Minister decides to order surrender, he is required to give the individual reasons for his decision: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.  In particular, the Minister must respond to any submissions against surrender made by the individual and explain why he disagrees: United States of America v. Taylor (2003), 175 C.C.C. (3d) 185 (B.C.C.A.).

[26] The individual is entitled to appeal against the order of committal and to apply for judicial review of the Minister’s decision to order surrender. The grounds for appealing the committal order are set out in s. 49  of the Extradition Act:  an appeal may be filed in a provincial court of appeal on a ground involving a question of law or may be filed, with leave, on a ground involving a question of fact or mixed law and fact, or on any other ground of appeal. Section 57(7) provides that the grounds for judicial review of the Minister’s decision to order surrender are those on which the Federal Court may grant relief under s. 18.1(4)  of the Federal Courts Act , R.S.C. 1985, c. F-7 .  Thus, under s. 57(2), judicial assessment of the Minister’s decision by the court of appeal is a form of administrative law review and must be conducted in accordance with the applicable administrative law standard. As I will explain below, it is my view that the applicable standard is reasonableness.

C.  Extradition and the Charter

[27] In determining whether surrender is consistent with the Charter , the Minister  must consider many factors, including Canada’s international obligations and its relationships with foreign governments.  The need to fulfil Canada’s obligations in relation to extradition is always a crucial factor precisely because of the important objectives of the extradition regime. La Forest J. elaborated on these objectives, and on the importance of international co-operation in achieving them, in Cotroni, at p. 1485:

The investigation, prosecution and suppression of crime for the protection of the citizen and the maintenance of peace and public order is an important goal of all organized societies. The pursuit of that goal cannot realistically be confined within national boundaries. That has long been the case, but it is increasingly evident today. Modern communications have shrunk the world and made McLuhan’s global village a reality. The only respect paid by the international criminal community to national boundaries is when these can serve as a means to frustrate the efforts of law enforcement and judicial authorities. The trafficking in drugs, with which we are here concerned, is an international enterprise and requires effective tools of international cooperation for its investigation, prosecution and suppression. Extradition is an important and well-established tool for effecting this cooperation.

[28] In Cotroni, this Court held that while extradition constitutes a prima facie infringement of a Canadian citizen’s mobility rights under s. 6(1)  of the Charter , that infringement can be justified under s. 1. After canvassing the important objectives of extradition, La Forest J., for the majority, rejected the argument that extraditing a Canadian citizen to face charges on which he can be prosecuted in Canada is irrational. It may be easier to prosecute a Canadian citizen in a foreign jurisdiction owing to the availability of witnesses or evidence. In addition, the foreign jurisdiction may have a greater interest in prosecuting the offence. In concluding that the right was minimally impaired by the extradition process, he noted that “extradition practices have been tailored as much as possible for the protection of the liberty of the individual” (p. 1490).

[29] On the issue of where a fugitive should be prosecuted, La Forest J. stated that “to require judicial examination of each individual case to see which could more effectively and fairly be tried in one country or the other would pose an impossible task and seriously interfere with the workings of the system” (p. 1494). Citing this Court’s decisions in R. v. Lyons, [1987] 2 S.C.R. 309, and R. v. Beare, [1988] 2 S.C.R. 387, he noted that prosecutorial discretion is consistent with the Charter  and will not be interfered with absent evidence of improper or arbitrary motives. La Forest J. went on to list the considerations, now known as the “Cotroni factors”, that will generally be considered in determining whether to prosecute in this country or to allow authorities in a foreign jurisdiction to seek extradition. These factors include:

-   where was the impact of the offence felt or likely to be felt,

-   which jurisdiction has the greater interest in prosecuting the offence,

-   which police force played the major role in the development of the case,

-   which jurisdiction has laid charges,

-   which jurisdiction is ready to proceed to trial,

-   where is the evidence located,

-   whether the evidence is mobile,

-   the number of accused involved and whether they can be gathered together in one place for trial,

-   in what jurisdiction were most of the acts in furtherance of the crime committed,

-   the nationality and residence of the accused,

-   the severity of the sentence the accused is likely to receive in each jurisdiction.

[30] How relevant each of these factors is to the determination of the appropriate jurisdiction for prosecution may vary from case to case.  Nothing in Cotroni suggests  that these factors should be given equal weight or precludes a conclusion that a single factor is determinative in a particular case. The list merely identifies some of the factors that will tend to favour either extradition or prosecution in Canada. To instruct prosecutorial authorities on how to decide whether to prosecute would deprive the concept of prosecutorial discretion of all meaning. The responsibility for deciding which factors are determinative lies with the authorities themselves; the list serves simply to highlight the relevant factors. The exercise of prosecutorial discretion will be interfered with in only the clearest of cases, such as where there is evidence of bad faith or improper motives. Absent such evidence, the infringement of an individual’s s. 6(1) mobility rights upon surrender will not be unjustified merely because the Minister has decided, rather than prosecuting the individual in Canada, to defer to the foreign authorities seeking extradition.

[31] The Minister is also often asked to consider whether surrender would violate an individual’s rights under s. 7  of the Charter .  The test that has been applied is whether ordering extradition would “shock the conscience” (Schmidt, at p. 522), or whether the fugitive faces “a situation that is simply unacceptable” (Allard, at p. 572). In Schmidt, La Forest J. emphasized that deference is owed to the Minister’s assessment:

The courts have the duty to uphold the Constitution. Nonetheless, this is an area where the executive is likely to be far better informed than the courts, and where the courts must be extremely circumspect so as to avoid interfering unduly in decisions that involve the good faith and honour of this country in its relations with other states. In a word, judicial intervention must be limited to cases of real substance. [p. 523]

[32] In Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, the majority of this Court explained that the proper approach is to balance the factors for and against extradition in the circumstances in order to determine whether extradition would tend to “shock the conscience”. In United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7, the Court reaffirmed the Kindler approach but added that the words “shock the conscience” should not “be allowed to obscure the ultimate assessment that is required: namely whether or not the extradition is in accordance with the principles of fundamental justice” (para. 68). In making this assessment, the relevant factors may be specific to the fugitive, such as age or mental condition, or general, such as considerations associated with a particular form of punishment.

[33] In Burns, the issue was whether s. 7 requires that the Minister, before ordering surrender, seek assurances that the death penalty will not be imposed where the fugitive faces the possibility of being sentenced to death upon conviction in the requesting state. In concluding that such assurances are required in all but the most exceptional cases, the Court emphasized the serious philosophical and practical concerns regarding capital punishment that had been expressed by Canada and by the international community, noting in particular the fact that the death penalty is final and irreversible. In addition, the Minister was unable to “poin[t] to any public purpose that would be served by extradition without assurances that is not substantially served by extradition with assurances” (para. 125 (emphasis in original)). Burns thus serves as an example of the kind of critical circumstances in which a reviewing court will interfere with the Minister’s decision.

D. Standard of Review

[34] This Court has repeatedly affirmed that deference is owed to the Minister’s decision whether to order surrender once a fugitive has been committed for extradition. The issue in the case at bar concerns the standard to be applied in reviewing the Minister’s assessment of a fugitive’s Charter  rights. Reasonableness is the appropriate standard of review for the Minister’s decision, regardless of whether the fugitive argues that extradition would infringe his or her rights under the Charter . As is evident from this Court’s jurisprudence, to ensure compliance with the Charter  in the extradition context,  the Minister must balance competing considerations, and where many such considerations are concerned, the Minister has superior expertise. The assertion that interference with the Minister’s decision will be limited to exceptional cases of “real substance” reflects the breadth of the Minister’s discretion; the decision should not be interfered with unless it is unreasonable (Schmidt) (for comments on the standards of correctness and reasonableness, see Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9).

[35] The appellant argues that where the decision to order surrender engages an individual’s Charter  rights, the appropriate standard of review is correctness. According to the appellant, though reviewing courts generally owe, and generally show, great deference to the Minister’s decision, the Minister’s assessment of the fugitive’s Charter  rights is entitled to no such deference. Although the appellant concedes that the Minister has superior expertise in relation to Canada’s treaty obligations and international interests, he does not consider the Minister to have superior expertise where the constitutionality of his own decision is concerned. He adds that the reviewing court is the first point of access to Charter  relief at the surrender stage, noting the following statement of Arbour J. in Kwok, at para. 80:

The Minister is required to respect a fugitive’s constitutional rights in deciding whether to exercise his or her discretion to surrender the fugitive to the Requesting State. But the Minister cannot decide whether a Charter  breach has occurred and, if so, grant the fugitive an appropriate remedy. That function is judicial, not ministerial. (See also para. 94.)

Finally, the appellant submits that although the Minister’s assessment of a fugitive’s Charter  rights involves many factual considerations, it is fundamentally a legal matter. In my view, the appellant’s arguments are flawed for the following reasons.

[36] First, it should be noted that in Kwok, Arbour J. was responding to an argument by the appellant in that case that s. 6(1)  of the Charter  is relevant at the committal stage. In support of this argument, Mr. Kwok had stated that the Minister is not a “‘court of competent jurisdiction’, empowered by the Charter  to grant constitutional remedies”:  para. 80. Although she acknowledged that the Minister cannot grant remedies for a Charter  breach, Arbour J. pointed out that the Minister’s decision is subject to judicial review by the provincial court of appeal. If a Charter  breach occurs, the appellate court is empowered to grant an appropriate remedy. However, this line of reasoning sheds no light on the standard the appellate court should apply in reviewing the Minister’s decision in order to determine whether such a breach has occurred. It merely refutes the argument that any infringement of s. 6(1) rights must be assessed at the committal hearing.

[37] Second, the Minister’s superior expertise in relation to Canada’s international obligations and foreign affairs remains relevant to the review of his assessment of a fugitive’s claim that extradition would violate his or her rights under the Charter . Whereas the Minister’s discretion must be exercised in accordance with the Charter , his assessment of any Charter  infringement that could result from ordering an individual’s surrender is closely intertwined with his responsibility to ensure that Canada fulfills its international obligations. The right of a Canadian citizen under s. 6(1) to remain in Canada is prima facie infringed by a decision to order that citizen’s surrender for extradition, but the infringement can generally be justified under s. 1, as this Court held in Cotroni.  In determining whether the infringement is justified, the Minister is required to consider not only “the possibility of prosecution in Canada, but also the interest of the foreign State in prosecuting the fugitive on its own territory”: Kwok, at para. 93. Accordingly, the Minister’s assessment of whether the infringement of s. 6(1) is justified rests largely on his decision whether Canada should defer to the interests of the requesting state. This is largely a political decision, not a legal one. The legal threshold  for finding it unacceptable is evidence that the decision not to prosecute in Canada was made for improper or arbitrary motives.  This leaves room for considerable deference to the Minister’s conclusion that the infringement of s. 6(1) is justified.

[38] Similarly, the Minister’s assessment of whether extradition accords with the fugitive’s s. 7 rights involves a balancing test. As I mentioned above, the Minister must weigh the factors for and against extradition to determine whether the circumstances are such that extradition would “shock the conscience”. In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, this Court considered the appropriate standard of review for the Minister’s decision whether a refugee faces a substantial risk of torture upon deportation. In its view, the Minister’s decision in that context requires a fact-driven inquiry involving the weighing of various factors and possessing a “negligible legal dimension” (para. 39). Accordingly, the Court concluded that the Minister’s decision would be entitled to deference upon judicial review.

[39] Whether extradition would “shock the conscience” involves a similar type of inquiry. The Minister must balance the individual’s circumstances and the consequences of extradition against such factors as the seriousness of the offence for which extradition is sought and the importance of meeting Canada’s international obligations and generally ensuring that Canada is not used as a safe haven by fugitives from justice. This inquiry will also often involve consideration of the protections that would be available to the fugitive and the conditions he or she would face in the requesting state. To say, as does the appellant in the instant case, that the decision whether surrender would unjustifiably infringe a fugitive’s Charter  rights remains fundamentally a legal matter is to disregard the reality that all executive and administrative decisions involving one’s rights are in essence “legal matters”. Yet not all such decisions are subject to judicial review on a correctness standard.  The decision in issue in Suresh was clearly a legal matter. The Court concluded that deference was owed to the Minister’s decision because it was based primarily on the Minister’s assessment of the facts; there was generally no need for the court to re-weigh the facts. The same is true in the extradition context.

[40] The appellant also pointed to several decisions of the British Columbia Court of Appeal in which the Minister’s assessment of a fugitive’s Charter  rights and of whether extradition would be unjust or oppressive within the meaning of s. 44(1) (a) of the Extradition Act was reviewed on a correctness standard: Stewart v. Canada (Minister of Justice) (1998), 131 C.C.C. (3d) 423; United States of America v. Gillingham (2004), 184 C.C.C. (3d) 97; United States of America v. Maydak (2004), 190 C.C.C. (3d) 71; United States of America v. Kunze (2005), 194 C.C.C. (3d) 422; Hanson v. Canada (Minister of Justice) (2005), 195 C.C.C. (3d) 46; United States of America v. Fordham (2005), 196 C.C.C. (3d) 39; Ganis v. Canada (Minister of Justice) (2006), 216 C.C.C. (3d) 337. In Stewart, the first case in which a court held that the appropriate standard was correctness, Donald J.A. expressed the concern that “[i]f deference were accorded [the Minister’s] assessment of the constitutional validity of [his] own act then I believe that judicial review would be unacceptably attenuated” (para. 18). With respect, this concern is misplaced.  It rests on an incorrect understanding of the Minister’s role in  assessing the interests at stake in the extradition context.  It is also inconsistent with this Court’s jurisprudence on the judicial review of extradition decisions.

[41] Reasonableness does not require blind submission to the Minister’s assessment; however, the standard does entail more than one possible conclusion. The reviewing court’s role is not to re-assess the relevant factors and substitute its own view. Rather, the court must determine whether the Minister’s decision falls within a range of reasonable outcomes. 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. I agree with Laskin J.A. that the Minister must, in reaching his decision, apply the correct legal test. The Minister’s conclusion will not be rational or defensible if he has failed to carry out the proper analysis. If, however, 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. This approach does not minimize the protection afforded by the Charter . It merely reflects the fact that in the extradition context, the proper assessments under ss. 6(1) and 7 involve primarily fact-based balancing tests. 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.

E. Application to the Facts of This Case

[42] The appellant asks that the Minister’s decision be set aside on the basis that extradition  would constitute an unjustified infringement of his rights under s. 6(1)  of the Charter . As I explained above, s. 6(1) requires the Minister to consider the possibility of prosecution in Canada. The Minister concluded that Canada did not have jurisdiction to prosecute the appellant for the substantive offence of trafficking that was based on the conduct that occurred in Detroit on September 22, 1997. However, he went on to say that regardless of whether or not Canada had jurisdiction to prosecute the appellant for that conduct, he would defer to the greater interest of the United States. Assuming, for the sake of argument, that Canada does have jurisdiction to prosecute the appellant, the issue is whether it was reasonable for the Minister to conclude that his extradition to the United States constitutes a justifiable infringement of his s. 6(1) rights.

[43] The appellant did not press the argument before this Court that he would be entitled to plead autrefois convict if he were actually to be charged in Canada with the substantive offence of trafficking in relation to the transaction of September 22, 1997. Nor did he argue that the Minister’s decision conflicted with Art. 4 of the Treaty, which prohibits extradition if the fugitive has already been convicted of or discharged for the alleged offence. Rather, the appellant focusses on the allegation that it would be unfair to extradite him on the trafficking charge, because he has already been prosecuted and sentenced in Canada. This, he argues, is a relevant factor to be considered in determining whether the infringement of his s. 6(1) rights can be justified under s. 1.

[44] In my view, the Minister’s conclusion was not unreasonable. The appellant was not charged with the substantive offence of trafficking in relation to the transaction of September 22, 1997. Although it is true that he was charged with conspiracy to traffic in narcotics on dates that included September 22, 1997, a charge of conspiracy does not subsume the substantive offence. An individual may be convicted both of conspiracy and of the substantive offence that was the object of that conspiracy: Sheppe v. The Queen, [1980] 2 S.C.R. 22.  If an accused is convicted on both charges, the usual order is that the sentences be served concurrently. However, even if an accused is charged only with conspiracy, evidence that he or she actually committed the substantive offence will generally lead to a harsher sentence than if the accused had conspired to commit it but had not actually done so.

[45] The Minister was of the view that the Canadian sentence did not reflect the fact that the appellant had committed the substantive offence. After reviewing the transcript of the sentencing hearing and the agreed statement of facts, the Minister noted that the sentencing judge had made no reference to the U.S. indictment and that Crown counsel had advised the court that he was seeking a reduced sentence in light of that indictment. Although the agreed statement of facts does make reference to the transaction of September 22, 1997, the clear implication of Crown counsel’s words at the sentencing hearing was that he was not seeking to punish the appellant for the Detroit transaction precisely because he expected the appellant to be punished for that offence in the United States. The relevant part of the transcript reads as follows:                      

What Mr. Lake faces is prosecution with respect to this charge in the United States, in which the evidence is compelling. And the likelihood of him being convicted in the United States as a result of the events of September 22, 1997, are high. The crown has taken that into account with respect to looking at the entire situation. And that was a motivating factor as far as the crown was concerned with respect to this sentence which I acknowledge is on the low end of the range with respect to these types of offences. [A.R., at p. 85]

In my view, it was reasonable for the Minister to conclude, relying upon the transcript of the sentencing hearing, that the appellant had not already been punished for the conduct underlying the U.S. indictment.               

[46] As for the adequacy of the Minister’s reasons, while I agree that the Minister has a duty to provide reasons for his decision, those reasons need not be comprehensive. The purpose of providing reasons is twofold:  to allow the individual to understand why the decision was made; and to allow the reviewing court to assess the validity of the decision. The Minister’s reasons must make it clear that he considered the individual’s submissions against extradition and must provide some basis for understanding why those submissions were rejected. Though the Minister’s Cotroni analysis was brief in the instant case, it was in my view sufficient. The Minister is not required to provide a detailed analysis for every factor. An explanation based on what the Minister considers the most persuasive factors will be sufficient for a reviewing court to determine whether  his conclusion was reasonable.

[47] In the case at bar, the Minister stated that he had considered the Cotroni factors, and in reaching his conclusion he emphasized that the alleged conduct had occurred in the United States:

. . . I would yield to the superior interest of the United States of America in prosecuting this matter. The evidence alleges that Mr. Lake trafficked cocaine within the boundaries of the United States of America. The United States of America is entitled to seek to protect its own public and maintain public confidence in its laws and criminal justice system through prosecution. [A.R., at p. 17]

[48] Although the locus delicti may not always be determinative, in this case, there is nothing unreasonable about the Minister’s conclusion. There is no other factor that would clearly outweigh the fact that the alleged conduct occurred in the United States. The appellant points to the severity of the punishment he will face upon conviction in the United States. However, this Court has upheld other decisions by the Minister to extradite individuals who face long prison sentences for drug offences: United States of America v. Jamieson, [1996] 1 S.C.R. 465; United States of America v. Whitley (1994), 94 C.C.C. (3d) 99 (Ont. C.A.), aff’d by and reasons adopted at  [1996] 1 S.C.R. 467; Ross v. United States of America (1994), 93 C.C.C. (3d) 500 (B.C.C.A.), aff’d by and reasons adopted at [1996] 1 S.C.R. 469. The sentence does not on its own provide a sufficient basis for interfering with a decision by the Minister to surrender a fugitive for extradition. The Minister’s deference to the United States owing to the fact that the alleged conduct occurred within its territory provides a sufficient basis for concluding that his decision was reasonable.

IV. Conclusion

[49] In light of this Court’s jurisprudence, it is clear that a reviewing court owes deference to a decision by the Minister to order surrender, including the Minister’s assessment of the individual’s Charter  rights. Although the Minister must apply the proper legal principles, his decision should be upheld unless it is unreasonable. In the case at bar, the Minister identified the proper test and provided reasons that were sufficient to indicate the basis for his decision to order the appellant’s surrender.  In my view, his decision to extradite the appellant rather than pursue prosecution in Canada is not unreasonable. The appeal is therefore dismissed.

Appeal dismissed.

Solicitors for the appellant:  Ruby & Edwardh, Toronto.

Solicitor for the respondent:  Attorney General of Canada, Vancouver.