Judgments

T-2024-01

2003 FC 1299

Arthur Froom (Applicant)

v.

The Minister of Justice (Respondent)

Indexed as: Froom v. Canada (Minister of Justice) (F.C.)

Federal Court, Layden-Stevenson J.--Toronto, August 12, 13, September 2; Ottawa, November 7, 2003.

Extradition -- Application for judicial review of authority to proceed (ATP) -- Applicant initially arrested in Toronto under Immigration Act on various grounds including wanted in U.S.A. for insurance fraud -- U.S.A. requesting extradition as indicted by grand jury to stand trial for fraud -- Minister's motion to strike judicial review application granted by Prothonotary, reversed by Judge -- Issue whether Court having jurisdiction to review ATP -- Application denied -- Extradition explained -- Extradition hearing similar to preliminary enquiry -- History of Canadian extradition legislation reviewed -- Current Act designed to modernize process in response to growth of transnational crime -- Rules of evidence relaxed -- Justice Minister, not extradition judge, now determines equivalency of offences -- Minister's argument: Court should decline jurisdiction as adequate, alternative remedies available -- Act does not oust jurisdiction re: ATP decisions -- Purposes of ATP -- Why extradition laws to be liberally construed -- ATP reviewable by F.C. -- Judicial review should be available at outset of process -- Minister's argument ATP non-reviewable as interlocutory ignoring unique nature of extradition proceeding -- Applicable review standard -- High level of deference appropriate based on pragmatic, functional analysis -- Applicant's argument re: Treaty non-compliance not meeting judicial review threshold, lacking evidentiary basis -- ATP not quashed as lacking particularity -- Kowbel v. The Queen distinguished as applicant indicted for conspiracy with wife, others known, unknown -- Statutory requirements for ATP, indictment differ -- Extradition important part of criminal justice system but not equated to criminal trial process -- Criminal law technicalities have limited application to extradition -- Argument abuse of process for delay aggravated by initial resort to deportation unsupported by evidence Minister not acting in pursuit of legitimate objectives -- Abuse of process argument could be made to Minister prior to surrender -- Statute requires Minister to determine whether surrender unjust -- Minister not wrongfully delegating power to issue ATP to Departmental senior counsel -- As conflicting Ontario Superior Court decisions, cannot be said matter squarely within jurisdiction of extradition judge -- "Delegatus non potest delegare" maxim now less followed as courts recognize necessity for implied delegation for efficient public administration -- Minister can delegate s. 15 power.

Administrative Law -- Judicial Review -- Certiorari -- Decision of Justice Minister to issue authority to proceed (ATP) under Extradition Act, s. 15 -- Minister challenging jurisdiction -- Arguing Act provides complete code of procedural safeguards -- Circumstances under which Court should decline jurisdiction -- Court to adopt purposive, functional approach -- Inquiry focussed on legislator's intent -- Factors to be considered -- Extradition laws to be liberally construed to achieve Treaty's purpose -- ATP reviewable by F.C. in appropriate case (Minister acted arbitrarily, in bad faith, had improper motive) -- Judicial review should be available at outset of process -- Minister's argument, no judicial review as ATP decision interlocutory, ignores unique nature of extradition proceedings -- Whether decision "interlocutory" problematic where exercise of ministerial discretion, not tribunal ruling -- Case law says interlocutory decisions reviewable in special circumstances -- Applicable review standard -- Minister's political, international relations expertise factor of greatest importance -- High level of deference owed -- Arguments Treaty not complied with not meeting judicial review threshold -- Abuse of process argument (delay, aggravated by initial attempted deportation) unsupported by evidence Minister acted in bad faith, for improper motive -- Abuse of process argument can be made to Minister prior to surrender -- Act requires Minister to determine whether surrender unjust upon consideration of all circumstances -- Document delegating power to issue ATP to Departmental senior counsel not invalid for failure to fill in exact date -- Minister not acting arbitrarily in delegating ATP authority -- Maxim "delagatus non potest delegare" now less adhered to -- Courts recognize necessity for implied delegation for efficient public administration.

Federal Court Jurisdiction -- Whether having jurisdiction to entertain application for judicial review of decision of Justice Minister to issue authority to proceed (ATP) in extradition matter -- Whether adequate, alternative remedies exist -- Extradition Act ousts F.C. jurisdiction re: surrender, silent re: s. 15 ATP decisions -- In deciding whether to decline jurisdiction, Court must adopt purposive, functional approach -- Relevant factors -- ATP is subject to F.C. review in appropriate case (Minister acted arbitrarily, in bad faith, improper, irrelevant motives) -- Questionable whether any situation where provincial appellate courts can review ATP -- Judicial review should be available at outset of process -- No other adequate remedy.

Applicant, seeking to avoid extradition to the United States, brought this application for judicial review of an authority to proceed (ATP) which had been issued by the Minister of Justice pursuant to the Extradition Act.

Applicant, an American, is married to a Canadian and resides here. He frequently travelled outside Canada on business. He was arrested in Toronto for Immigration Act violations and released on conditions. The allegations were that he had worked illegally in Canada, been convicted in the United States of impaired driving and was wanted there for insurance fraud. His conditional deportation was ordered only on the basis of the fraud allegation. An application for judicial review of the Adjudicator's order was rejected by Kelen J.

A United States Embassy Diplomatic Note requested the extradition of Arthur Kissel, a.k.a. Arthur Froom, indicating that he was wanted to stand trial for fraud. He had been indicted by a grand jury. The ATP issued on July 3, 2001. On ex parte application, a justice of the Ontario Superior Court of Justice issued an arrest warrant. Released on a recognizance and a surety, applicant then sought certiorari to quash the ATP as well as injunctions and other relief. The Minister's motion to strike this application was granted by a prothonotary but an appeal from that decision was allowed by Gibson J. That Judge was not prepared to resolve the question whether this Court has jurisdiction to judicially review issuance of an ATP upon a motion to strike.

Applicant noted the absence of authority as to whether Federal Court has jurisdiction to review an ATP. The Act does not oust this Court's jurisdiction. It was argued that the decision to issue an ATP should be treated no differently than any other decision by a Minister. This Court was the only forum that could grant relief in that the extradition judge lacks jurisdiction to quash an ATP.

Held, the application should be dismissed.

Extradition is the surrender by one state, at another's request, of a person within its jurisdiction who has been accused or convicted of a crime committed within that other state's jurisdiction. An executive function, it is a product of international agreements. The initial phase of the extradition process is judicial in nature; the second is executive. At the judicial stage, the evidence must establish a prima facie case that the alleged conduct constitutes a crime in the requesting state, would constitute a crime here and is contemplated in the bilateral treaty (the double criminality rule). Second: the evidence must establish, on a balance of probabilities, that the person before the Court is indeed the person sought to be extradited.

An extradition hearing is similar to a preliminary inquiry in that the judge has to refrain from weighing the evidence or assessing credibility. Nor can the judge consider how the evidence was gathered or any defences that might be advanced at trial.

In 1992 the Act was amended in order to streamline and simplify extradition procedure. It now provides for a single review by provincial court of the decisions of the extradition judge and the Minister. The provincial court of appeal was given "exclusive original jurisdiction" to review the judicial decision to commit and the executive decision to surrender. Resort to a writ of habeas corpus to review the committal was eliminated. Still, the amendments did not alter the two-tiered structure of the Act and the separate functions of judge and Minister.

In 1999 a new Act came into force. It was designed to modernize the process and was in response to the increasingly global nature of crime. This was at a time when the growth of transnational crime had resulted in worldwide initiatives to make extradition more expeditious. Another consideration was the necessity for Canada to cooperate with United Nations tribunals which oversee trials of war crimes and crimes against humanity. Under the evidence rules in the new Act, evidence that would be inadmissible at a trial in Canada is admitted. In particular, hearsay inadmissible at common law or which would not meet the requirements established by recent Supreme Court of Canada decisions, is admitted. It was the 1999 Act that introduced the ATP, which must set out the Canadian offence that is equivalent to the offence allegedly committed in the extradition partner state. This represented a departure from previous practice whereunder the proceeding was commenced by diplomatic note. It is now the Minister rather than the extradition judge who determines equivalency.

The Minister's position was that extradition is an executive function involving political decisions and that the Act provides a complete code so far as procedural safeguards are concerned. It is the provincial superior courts which have expertise in these matters. The Minister says that applicant's challenges concern the evidence relied upon by the United States, matters relating to American law, non-compliance with the treaty and the Act. The suggestion was that adequate alternative remedies do exist so that this Court should decline to exercise its discretion to grant judicial review. Applicant pointed out that the Minister's initial decision is reviewable only by the Federal Court under section 18.1, the extradition judge being compelled to accept the decision to issue an ATP. While subsection 57(1) of the new Act was said to oust Federal Court jurisdiction to review section 40 surrender decisions, that is not so for section 15 (ATP) decisions.

The ATP serves two functions in the extradition process. It gives notice to the person sought of what is alleged against him and ensures that the Minister's decision to authorize the seeking of committal on behalf of the requesting state is made in a timely way.

Determining whether there is an adequate alternative remedy raised statutory interpretation issues and required a consideration of the circumstances under which the Court should decline to exercise its discretion to entertain a judicial review application. The Supreme Court has held that, in determining whether to decline jurisdiction, the Court must adopt a purposive and functional approach to ensure that the inquiry is focussed on the legislator's intent, not on interpreting isolated provisions. Relevant factors include convenience of the alternative remedy, nature of the error and the nature of the "appellate" body. The question is not which is the better forum, but is the alternative forum adequate?

It can, as a general proposition, be stated that extradition laws should be liberally construed to achieve the Treaty's purpose. Extradition treaties support the efforts of law enforcement agencies on both sides of international borders. A state would not want to be seen as a haven for criminals.

Having considered the arguments put forward on both sides, it was concluded that, in an appropriate case, an ATP is subject to review by Federal Court.

The ATP is the foundation block upon which the extradition process stands. In issuing the ATP, the Minister exercises a statutory power within the contemplation of Federal Courts Act, section 2. Blind judicial deference to executive judgment cannot be expected and in a case where there are strong grounds for arguing that the Minister acted arbitrarily, in bad faith, had an improper motive or was motivated by irrelevant considerations, it could not be concluded that Parliament's intention was that such decision not be reviewable. It was not clear that there are any circumstances in which provincial appellate courts might entertain judicial review with respect to an ATP. The Court was of the view that judicial review ought to be available at the outset of the process, not just after a surrender order. It would be unjust to require an individual to undergo each stage of the process in order to challenge the Minister's decision. Even if a remedy is ultimately found to be within reach, the process, while providing an alternative remedy, fails to provide an adequate one. That said, the circumstances under which judicial review of an ATP is available will be exceedingly rare.

An alternative argument put forward by the Minister was that judicial review should not be entertained because the decision to issue an ATP is interlocutory in nature. There was, however, no authority for that proposition. The point was made by applicant that the question whether a decision is final or interlocutory is not always easy. The appropriate characterization can indeed become clouded where the decision involves an exercise of ministerial discretion as opposed to a tribunal's ruling during a proceeding. Respondent's arguments on this issue failed to address the unique nature of extradition proceedings, which involve a process having mutually exclusive and distinct phases. There is a contextual distinction between extradition matters and other cases with which this Court is normally concerned. The Act is silent as to review of the Minister's role at the outset of the process. For purposes of this application, it was unnecessary to determine whether the decision was final or interlocutory. Case law leaves open the door to the judicial review of interlocutory decisions in special circumstances.

As to the applicable standard of review, the four factors of the pragmatic, functional analysis mandated by the Supreme Court of Canada led in this case to a standard of patent unreasonableness. Expertise of the decision-maker was the factor of greatest importance. The Minister possesses expertise in political and international relations matters and must bear in mind the honour of Canada in its relations with other states. That dictates a high level of deference. The provision in particular as well as the purpose of the Act as a whole also point to very high deference. As for nature of the problem, the issue is one of mixed fact and law, but more fact intensive and this again suggests high deference.

Applicant's next argument was that, in three respects, the Treaty had not been complied with. First, under Article 9(1), an extradition request is to be made through diplomatic channels. Applicant said that the Diplomatic Note herein went from the American Embassy at Ottawa to the Department of Justice rather than to Foreign Affairs. Second, under Article 4(1)(ii) extradition is not granted if prosecution is time-barred in the requesting state. Applicant made reference to the Speedy Trial Act, an American statute, which prescribes a limitation period. Third, Article 9(3) requires that if the request relates to a person not yet convicted, it must be accompanied by an arrest warrant issued by a judicial officer as well as evidence that, under the laws of the requesting state, would justify arrest and committal for trial had the offence been committed there. Applicant noted that the warrant makes no reference to conspiracy so that the ATP, to the extent that it makes reference to conspiracy, should be quashed.

Not one of these arguments met the judicial review threshold, for there was no allegation that the Minister had acted arbitrarily, in bad faith, had an improper motive or was motivated by irrelevant considerations. Furthermore, these submissions lacked an evidentiary basis. It was not for the courts to say where signatories to international treaties should direct documentation; there was nothing wrong with the documentation herein having been sent to the Department of Justice. The documentation certified that each of the charges against applicant had been laid within the Statute of Limitations. The Article 9(3) argument was without merit, since that provision does not require that all offences in the indictment be mentioned in the warrant.

In arguing that the ATP was a nullity, applicant suggested that this Court follow the unreported decision of the British Columbia Supreme Court in United States of America v. Shull quashing an ATP as lacking sufficient particularity. Applicant submitted that the reference to conspiracy does not disclose an offence since the allegation is that he conspired with his wife and a husband and wife cannot conspire with each other: Kowbel v. The Queen. In relation to the money laundering count, it was not alleged that the offence was completed i.e. payment by the insurer. But applicant was mistaken in supposing the ATP to be a "charging document" and his submissions failed to distinguish between the statutory requirements for an indictment and an ATP. The former may be found in the Criminal Code, the latter in the Extradition Act. While the extradition process is an important part of our criminal justice system, it is not to be equated to the criminal trial process. The nice distinctions of the criminal law have no place in the law of extradition. The principle that the technicalities of criminal law apply to only a limited extent in extradition cases is now well understood by the courts. Applicant's submission, that the rule of specialty is compromised since the ATP was not clearly worded, was lacking in substance. Nor was the co-conspirators argument well taken. Kowbel concerned a husband and wife alone; the indictment herein makes reference to "and others known and unknown" to the grand jury. Whether the act charged is a crime under American law is for the American prosecutors to decide; it is for the extradition judge to determine whether there is sufficient evidence that the alleged offence, if committed in Canada, constitutes a crime. The decision in Shull has not been followed by any court but, if it was correct in holding that the extradition judge is empowered to quash an ATP, applicant would have no basis upon which to ask this Court to assume jurisdiction.

Applicant submitted that this proceeding was an abuse of process, because of delay of three and one-half years since the grand jury indictment, a delay aggravated by the tactical decision to resort to deportation proceedings in an attempt to circumvent the necessity for extradition. The applicant maintained that the earlier deportation effort was a de facto extradition attempt, so the extradition proceedings were an abuse of process. It was, however, held by Kelen J. upon judicial review of the conditional deportation order against applicant that he had failed to discharge the heavy onus of showing that deportation had been pursued for illegitimate purposes. If applicant's position was that the Minister acted in bad faith or for an improper motive, there would be a necessity for evidence that the Minister had not acted in pursuit of legitimate objectives. But no evidence had been put before the Court indicating improper conduct or bad faith on the Minister's part. The submissions regarding delay and abuse of process should be made to the Minister, if a committal order is made, prior to surrender. Improper motives or bad faith on the part of Canadian authorities in seeking extradition would constitute a ground for review of the surrender decision. Given the mandatory nature of paragraph 44(1)(a) of the Act, the Minister must consider all of the relevant circumstances, singly and in combination, in determining whether surrender would be unjust or oppressive and the individual is entitled to reasons responsive to the factors relevant to his situation. A surrender order is subject to judicial review by the provincial appellate court.

Applicant's submission that, since Canada acts as agent, actions by the Americans amounting to abuse of process can "vitiate this entire proceeding" may have been based upon a misunderstanding of certain comments of Arbour J. in the Shulman case. This matter has yet to reach the extradition hearing stage and applicant's arguments fall within the jurisdiction of either the extradition judge or the Minister.

In the course of this hearing, respondent's counsel made reference to a document delegating the power to issue an ATP to a particular senior Justice Canada counsel. Applicant seized upon the fact that although there was a space for the specific date, it read June --, 1999. Applicant argued that this defect rendered the delegation a nullity. Counsel could find no case law directly on point. Nothing turned on the exact date that the document was signed.

Another argument was that the Minister acted arbitrarily and erred in law in wrongfully delegating his authority in that delegation of the power to issue an ATP is not authorized by the Act. The Court was urged to find that the requirement that the Minister had to be "satisfied" together with the nature of the decision dictate that the power cannot be delegated. Reference was made to Federal Republic of Germany v. Schreiber in which Watt J. ruled that an extradition judge lacked jurisdiction to question an ATP's validity based on impermissible delegation of ministerial authority. The Court was of the view that if the Minister did improperly delegate his authority, he could be said to have acted arbitrarily. In the Woolley case, Ontario Superior Court Justice Hoilett held that he did have jurisdiction to rule on whether an ATP was defective for having been signed by senior counsel rather than the Minister. In view of the conflicting case law, it cannot be said that the matter falls squarely within the jurisdiction of the extradition judge. The Ramawad case, which involved improper delegation of the Minister's authority under the Immigration Regulations, supported applicant's position on this issue. But, in Dr. Q, it would seem that the Supreme Court of Canada has taught that, in every case, a reviewing judge must first determine the applicable review standard by applying the pragmatic and functional analysis. The Minister's expertise does not extend to a decision to delegate and the problem--whether his discretionary power can be delegated--is a pure question of law. Correctness was the appropriate review standard. Still, there is high authority for the proposition that the statutory contruction that grew up around the maxim delegatus non potest delegare may have operated more strongly in the past when express delegation was generally thought necessary. And, even before the enactment of Interpretation Act, subsection 24(2) (which provides that a person serving in an appropriate capacity within the minister's department can do that which the minister is empowered to do), courts had recognized a principle of implied delegation of ministerial powers so as to ensure the proper, efficient functioning of public administration. Turning to the Act, while those subsections dealing with an individual's surrender require the Minister to act "personally", this was not said in relation to section 15. All things considered, it was open to the Minister to delegate his section 15 discretionary authority.

In the result, while the Federal Court did have jurisdiction to review the Minister's decision to issue an ATP under Act, section 15, an order issued dismissing the application for judicial review.

statutes and regulations judicially

considered

Canada Pension Plan, R.S.C., 1985, c. C-8.

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 24.

Citizenship Act, R.S.C., 1985, c. C-29, s. 18.

Criminal Code, R.S.C., 1985, c. C-46, ss. 581 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 118), 601(11) (as am. idem, s. 123).

Extradition Act, S.C. 1999, c. 18, ss. 2, 3, 4, 6, 7, 8, 11, 13, 14, 15, 19, 20, 21, 23, 24, 25, 29, 31, 32, 33, 34, 35, 36, 37, 38, 40 (as am. by S.C. 2000, c. 24, s. 51; 2001, c. 27, s. 250), 41, 42, 43, 44, 45, 46, 47 (as am. by S.C. 2002, c. 1, s. 190), 47.1 (as enacted by S.C. 2000, c. 24, s. 52), 48 (as am. by S.C. 2001, c. 27, s. 251), 49, 51, 53, 54, 55, 56, 57 (as am. by S.C. 2002, c. 8, s. 141), 71(3).

Extradition Act, 1989 (U.K.), 1989, c. 33.

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.5 (as enacted by S.C. 1990, c. 8, s. 5).

Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 2(1) "final judgment", 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27).

Fisheries Act, R.S.C., 1985, c. F-14, s. 7.

Immigration Act, R.S.C., 1985, c. I-2.

Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 6(2).

Interpretation Act, R.S.C., 1985, c. I-21, s. 24(2) (as am. by S.C. 1992, c. 1, s. 89).

Speedy Trial Act, 88 Stat. 2080 (1974) (as am. by 93 Stat. 328 (1979)).

Treaty on Extradition between the Government of Canada and the Government of the United States of America, December 3, 1971, [1976] Can. T.S. No. 3, Arts. 2 (as am. by [1991] Can. T.S. No. 37, Art. 1), 4(1)(ii),(iii), 8, 9, 10, 11 (as am. idem, Art. VII), 12.

cases judicially considered

applied:

Froom v. Canada (Minister of Citizenship and Immigration), 2003 FC 1127; [2003] F.C.J. No. 1443 (T.D.) (QL); United States of America v. Kwok, [2001] 1 S.C.R. 532; (2001), 197 D.L.R. (4th) 1; 152 C.C.C. (3d) 225; 41 C.R. (5th) 44; 81 C.R.R. (2d) 189; 267 N.R. 310; 145 O.A.C. 36; McVey (Re); McVey v. United States of America, [1992] 3 S.C.R. 475; (1992), 97 D.L.R. (4th) 193; [1993] 1 W.W.R. 289; 73 B.C.L.R. (2d) 145; 16 B.C.A.C. 241; 77 C.C.C. (3d) 1; 144 N.R. 81; Federal Republic of Germany v. Schreiber, [2000] O.J. No. 2618 (Sup. Ct.) (QL); Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; (1995), 122 D.L.R. (4th) 129; 26 Admin. L.R. (2d) 1; [1995] 2 C.N.L.R. 92; 177 N.R. 325; Rees v. Secretary of State for the Home Dept., [1986] 2 All E.R. 321 (H.L.); Zündel v. Canada (Human Rights Commission), [2000] 4 F.C. 255; (2000), 25 Admin. L.R. (3d) 135; 256 N.R. 125 (C.A.); Szczecka v. Canada (Minister of Employment and Immigration) (1993), 116 D.L.R. (4th) 333; 25 Imm. L.R. (2d) 70; 170 N.R. 58 (F.C.A.); Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; (2003), 223 D.L.R. (4th) 599; [2003] 5 W.W.R. 1; 11 B.C.L.R. (4th) 1; 48 Admin. L.R. (3d) 1; 179 B.C.A.C. 170; 302 N.R. 34; United States of America v. Reumayr (2003), 184 B.C.A.C. 251; 176 C.C.C. (3d) 377 (B.C.C.A.); R. v. Harrison, [1977] 1 S.C.R. 238; (1976), 66 D.L.R. (3d) 660; [1976] 3 W.W.R. 536; 28 C.C.C. (2d) 279; 8 N.R. 47; Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12; (1997), 142 D.L.R. (4th) 193; 43 Admin. L.R. (2d) 1; 31 C.C.L.T. (2d) 236; 206 N.R. 363; Canada (Minister of Human Resources Development) v. Wiemer (1998), 228 N.R. 341; 42 R.F.L. (4th) 242 (F.C.A.).

distinguished:

Kowbel v. The Queen, [1954] S.C.R. 498; [1954] 4 D.L.R. 337; (1954), 110 C.C.C. 47; 18 C.R. 380.

considered:

Froom v. Canada (Minister of Justice), [2003] 3 F.C. 268; (2002), 225 F.T.R. 173 (T.D.); United Kingdom v. Woolley, [2003] O.J. No. 3805 (Sup. Ct.) (QL); Reza v. Canada, [1994] 2 S.C.R. 394; (1994), 116 D.L.R. (4th) 61; 21 C.R.R. (2d) 236; 24 Imm. L.R. (2d) 117; 167 N.R. 282; 72 O.A.C. 348; Fast v. Canada (Minister of Citizenship and Immigration) (2001), 41 Admin. L.R. (3d) 200; 217 F.T.R. 159; 288 N.R. 8 (F.C.A.); Reza v. Canada (1992), 11 O.R. (3d) 65; 98 D.L.R. (4th) 88; 9 Admin. L.R. (2d) 121; 11 C.R.R. (2d) 213; 58 O.A.C. 377 (C.A.); Fast v. Canada (Minister of Citizenship and Immigration), [2001] 1 F.C. 257; (2000), 24 Admin. L.R. (3d) 74; 186 F.T.R. 16; 7 Imm. L.R. (3d) 40 (T.D.); United States of America v. Shulman, [2001] 1 S.C.R. 616; (2001), 152 C.C.C. (3d) 294; 41 C.R. (5th) 100; 81 C.R.R. (2d) 245; 268 N.R. 115; 145 O.A.C. 201; Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149; 142 N.R. 173 (F.C.A.); Reebok Canada v. Minister of National Revenue (1995), 179 N.R. 300 (F.C.A.); United States of America v. Shull, unreported oral decision, 29/6/01, Vancouver Docket CC991440; Edgar v. Canada (Attorney General) (1999), 46 O.R. (3d) 294; 182 D.L.R. (4th) 419; 127 O.A.C. 202; 4 T.T.R. (2d) 235 (C.A.); Attorney General of Quebec v. Carrières Ste. Thérèse Ltée, [1985] 1 S.C.R. 831; (1985), 20 D.L.R. (4th) 602; 13 Admin. L.R. 144; 20 C.C.C. (3d) 408; 59 N.R. 391.

referred to:

Froom v. Canada (Minister of Justice), [2002] 4 F.C. 345; (2002), 218 F.T.R. 230 (T.D.); Canada v. Schmidt, [1987] 1 S.C.R. 500; (1987), 39 D.L.R. (4th) 18; 33 C.C.C. (3d) 193; 58 C.R. (3d) 1; 28 C.R.R. 280; 76 N.R. 12; 20 O.A.C. 161; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; (1991), 84 D.L.R. (4th) 438; 67 C.C.C. (3d) 1; 8 C.R. (4th) 1; 6 C.R.R. (2d) 193; 129 N.R. 81; United Stated of America v. Shephard, [1977] 2 S.C.R. 1067; (1976), 70 D.L.R. (3d) 136; 30 C.C.C. (2d) 424; 34 C.R.N.S. 207; 9 N.R. 215; Argentina v. Mellino, [1987] 1 S.C.R. 536; (1987), 80 A.R. 1; 40 D.L.R. (4th) 74; [1987] 4 W.W.R. 289; 52 Alta. L.R. (2d) 1; 33 C.C.C. (3d) 334; 28 C.R.R. 262; 76 N.R. 51; United States of America v. Lépine, [1994] 1 S.C.R. 286; (1993), 111 D.L.R. (4th) 31; 87 C.C.C. (3d) 385; 163 N.R. 1; 69 O.A.C. 241; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; (1992), 97 D.L.R. (4th) 577; 9 Admin. L.R. (2d) 1; 77 C.C.C. (3d) 65; 17 C.R. (4th) 161; 12 C.R.R. (2d) 77; 144 N.R. 327; 59 O.A.C. 241; United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469; (1989), 23 Q.A.C. 182; 96 N.R. 321; 48 C.C.C. (3d) 193; United States of America v. Yang (2001), 56 O.R. (3d) 52; 203 D.L.R. (4th) 337; 157 C.C.C. (3d) 225; 45 C.R. (5th) 205; 87 C.R.R. (2d) 300; 149 O.A.C. 364 (C.A.); United States of America v. Kucan (2001), 151 O.A.C. 131 (C.A.); United States of America v. Drysdale (2000), 32 C.R. (5th) 163; 71 C.R.R. (2d) 133 (Ont. Sup. Ct.); Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; (1998), 36 O.R. (3d) 418; 154 D.L.R. (4th) 193; 50 C.B.R. (3d) 163; 33 C.C.E.L. (2d) 173; 221 N.R. 241; 106 O.A.C. 1; United States of America v. Sagarra (2003), 226 Nfld. & P.E.I.R. 321; 177 C.C.C. (3d) 180 (Nfld. C.A.); Thailand v. Karas, 2001 BCSC 72; [2001] B.C.J. No. 124 (S.C.) (QL); Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; (1997), 144 D.L.R. (4th) 1; 50 Admin. L.R. (2d) 199; 71 C.P.R. (3d) 417; 209 N.R. 20; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 160 D.L.R. (4th) 193; 11 Admin. L.R. (3d) 1; 43 Imm. L.R. (2d) 117; 226 N.R. 201; amended reasons [1998] 1 S.C.R. 1222; (1998), 11 Admin. L.R. (3d) 130; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; (2002), 208 D.L.R. (4th) 107; 37 Admin. L.R. (3d) 252; 18 Imm. L.R. (3d) 93; 280 N.R. 268; Brodie and Barrett v. The King, [1936] S.C.R. 188; [1936] 3 D.L.R. 81; (1936), 65 C.C.C. 289; United States of America v. Dynar, [1997] 2 S.C.R. 462; (1997), 33 O.R. (3d) 478; 147 D.L.R. (4th) 399; 115 C.C.C. (3d) 481; 8 C.R. (5th) 79; 44 C.R.R. (2d) 189; 213 N.R. 321; 101 O.A.C. 321; United States of America v. Bonamie (2001), 293 A.R. 201; [2002] 1 W.W.R. 247; 96 Alta. L.R. (3d) 252; 90 C.R.R. (2d) 269 (C.A.); United States of America v. Earles (2003), 176 B.C.A.C. 231; 176 C.C.C. (3d) 116 (C.A.); United States of America v. Gillingham (2000), 193 D.L.R. (4th) 133; 144 B.C.A.C. 165; 149 C.C.C. (3d) 261 (B.C.C.A.); United States of America v. Johnson (2002), 62 O.R. (3d) 327; 50 Admin. L.R. (3d) 156; 170 C.C.C. (3d) 539; 166 O.A.C. 345 (C.A.); United States of America v. Cobb, [2001] 1 S.C.R. 587; (2001), 197 D.L.R. (4th) 46; 152 C.C.C. (3d) 270; 41 C.R. (5th) 81; 81 C.R.R. (2d) 226; 267 N.R. 203; 145 O.A.C. 3; Ramawad v. Minister of Manpower and Immigration, [1978] 2 S.C.R. 375; (1977), 81 D.L.R. (3d) 687; 18 N.R. 69.

authors cited

La Forest, Anne Warner. La Forest's Extradition to and from Canada, 3rd ed. Aurora, Ont.: Canada Law Book, 1991.

APPLICATION for judicial review of a decision by the Minister of Justice to issue an authority to proceed under Extradition Act, section 15. Application denied.

appearances:

Lorne Waldman, David B. Cousins and Gregory Lafontaine for applicant.

Dale L. Yurka and Joseph Cheng for respondent.

solicitors of record:

Waldman and Associates, Toronto, David B. Cousins, Toronto, and Lafontaine & Associate, Toronto, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

[1]Layden-Stevenson J.: Arthur Froom (also known as Arthur Kissel) wishes to avoid extradition to the United States of America on charges of conspiracy, fraud and laundering the proceeds of crime. In this application, he asks the Court, among other things, to judicially review and quash the authority to proceed (ATP) issued by the Minister under the Extradition Act, S.C. 1999, c. 18 (the Act) on July 3, 2001.

FACTUAL AND PROCEDURAL BACKGROUND

[2]Because of the nature of some of the arguments that will be referred to in due course, it is necessary, for contextual purposes, to set out the factual and procedural basis that underlies this particular application. Mr. Froom is an American citizen, is married to a Canadian citizen and is presently resident in Canada. In the past, Mr. Froom travelled to and from Canada regularly for business purposes. In April 1998, he was arrested in Toronto by Canadian officers for alleged violations of the former Immigration Act, R.S.C., 1985, c. I-2. He was released on conditions.

[3]Mr. Froom appeared before an adjudicator of the Immigration and Refugee Board regarding allegations that he had worked illegally in Canada, that he had been convicted of drinking and driving in the United States and that he was wanted in the United States on charges of fraud related to insurance claims. The allegation with respect to working illegally was not established and the impaired driving allegation was withdrawn. The Adjudicator made a conditional deportation order on the basis of the remaining allegation. The Adjudicator's order was the subject of an application for judicial review that was dismissed by Mr. Justice Kelen on October 2, 2003 [Froom v. Canada (Minister of Citizenship and Immigration), 2003 FC 1127; [2003] F.C.J. No. 1443 (T.D.) (QL)].

[4]On June 28, 2001, United States Embassy Diplomatic Note No. 456 was presented to the Department of Foreign Affairs and International Trade requesting the extradition of Arthur Kissel, a.k.a. Arthur Froom. The document indicates that "Kissel is wanted to stand trial on federal fraud offences". The acts for which extradition is sought are acts allegedly committed by Mr. Froom in relation to the business (the provision of medical services) that he ran with his wife. On July 3, 2001, the ATP issued. It was signed by counsel for the International Assistance Group (the IAG) for the Minister of Justice, Canada. It lists the following Canadian offences as being those that correspond to the conduct alleged against Mr. Froom in the United States:

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

- fraud contrary to section 380 of the Criminal Code;

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

- laundering the proceeds of crime contrary to section 462.31 of the Criminal Code.

[5]The certified legal statement of the Assistant United States Attorney for the Southern District of New York, included as part of the documentation supporting the request for extradition, indicates that the first grand jury indictment in relation to this matter was returned on March 28, 1998. After considering additional evidence, the grand jury returned a first superseding indictment on November 4, 1998, modifying the charge in the original indictment. On October 20, 1999, after considering additional evidence, the grand jury returned a second superseding indictment and on March 29, 2000, after considering additional evidence, the grand jury returned a third superseding indictment. The certified legal statement specifies that the third superseding indictment replaces the previous indictments as the charging document in the case.

[6]An ex parte application was made before a justice of the Superior Court of Justice, Ontario, for a warrant of arrest and it issued on September 11, 2001. Mr. Froom was arrested and later released on a recognizance requiring a cash deposit of $25,000 and a surety for the amount of $20,000. He filed a notice of application on November 12, 2001, seeking a writ of certiorari quashing the ATP, a declaration that it is invalid and of no force and effect and a declaration setting aside the decision of the Minister. In an amended notice of application dated May 5, 2003, Mr. Froom significantly expands the remedies sought and adds requests for various injunctions against the Minister of Justice and the Attorney General relating to the ATP and the extradition proceedings as well as various other remedies with respect to the Ontario courts and the United States.

[7]Mr. Froom also made a claim for Convention refugee status in Canada. That claim was denied. There is additionally an action against Her Majesty dealing with issues similar to those involved in this application. The action is presently stayed on the consent of the parties.

[8]In relation to this proceeding, the respondent, by motion, sought to strike the application for judicial review. The Prothonotary's decision allowing the motion Froom v. Canada (Minister of Justice), [2002] 4 F.C. 345 (T.D.) (Froom No. 1) was appealed and the appeal was allowed by Mr. Justice Gibson Froom v. Canada (Minister of Justice), [2003] 3 F.C. 268 (T.D.) (Froom No. 2). He concluded that while there exists [at paragraph 34] a "compelling argument that this Court does not have the jurisdiction to judicially review the issuance of an authority to proceed, an equally compelling argument can be made that this Court has such jurisdiction by virtue of the Federal Court Act and, in the absence of the ousting of that jurisdiction, this Court should fully consider exercising it". In relation to the question whether, if this Court has jurisdiction to judicially review an ATP, should it nonetheless refrain from exercising that jurisdiction, Mr. Justice Gibson had this to say [at paragraphs 35-36]:

Counsel for the Minister, without acknowledging that this Court has jurisdiction to judicially review an authority to proceed, urged that, if the Court has the jurisdiction, it should not exercise it because there exists an adequate alternative remedy and further, that its exercise would be incompatible with the statutory scheme of the Extradition Act and expeditious fulfilment of Canada's international obligations in the field of extradition.

I am satisfied that this is an issue more appropriately dealt with on the hearing of any application for judicial review and not on a motion to strike such an application.

[9]The hearing of this application began on August 12, 2003. The morning of August 12th was consumed by argument with respect to a motion by the applicant that had been scheduled for hearing during general sittings on August 11th. When it became apparent to the Motions Judge that the matter required significantly more time than was available on general sittings, the motion was directed to be set over and dealt with at the outset of the hearing of the application. Mr. Froom had requested that various portions of the respondent's record and memorandum of fact and law be struck on the basis that it was not apparent what documents were before counsel for the IAG when the decision to issue the ATP was made. Notwithstanding that the motion arguments were substantial, a compromise of the issue was eventually agreed upon, and when the respondent provided correspondence from the IAG counsel in this respect, the motion was withdrawn. It became apparent, however, that the remaining 1[frac12] days would not provide sufficient time within which to canvass material contained in 15 volumes of authorities, 4 volumes of records and requiring the appearances of 5 lawyers. At the end of the day on August 13th, the hearing was adjourned and scheduled to resume on September 2nd.

[10]Matters were somewhat further complicated when one of the applicant's counsel fell ill prior to the September 2nd date and requested an adjournment on the Friday preceding the scheduled date. In response, I directed able counsel to be present on September 2nd to address the request for an adjournment and to be prepared to proceed. When we resumed, I, at the outset, commented on the fact that the counsel in question had not presented any of the oral argument during the first phase of the hearing. The submissions of one of Mr. Froom's counsel revealed that while the incapacitated counsel had not argued orally, there had been interaction and consultation among Mr. Froom's counsel and that it was anticipated that the opportunity for similar interaction and consultation would be afforded between the conclusion of the respondent's argument and the reply.

[11]Reluctant to delay the matter, but at the same time concerned that I not prejudice the applicant in any way, I proposed that the matter continue as scheduled, that the remaining arguments be transcribed, that the reply be given and that the transcript be prepared on an expedited basis. The transcript would be available to the applicant's incapacitated counsel by September 8th. Upon review of the arguments, it would be open to that counsel to submit any reply (within the parameters of proper reply content) that had not been, but in counsel's view should have been, canvassed in the reply. I proposed that the incapacitated counsel be granted until September 17th to provide his augmented reply, if any, in written form.

[12]Neither Mr. Froom's counsel (who were present) nor the respondent's counsel took exception to my proposed solution. It should be noted, however, that Mr. Froom was not present during this discussion and while his counsel took no exception, he noted that his position was subject to any objections Mr. Froom might have. Mr. Froom arrived shortly thereafter and the matter proceeded without further delay. No objections were made.

[13]Counsel's submissions and authorities in support were received on September 17th. Those submissions extend well beyond what constitutes appropriate and proper reply and in some instances canvass issues that were not raised either in the applicant's argument or that of the respondent. To the extent that the September 17th submissions take such liberties, they will not be considered. Counsel for the respondent forwarded an additional brief submission on October 2, 2003, for the purpose of alerting me to and providing me with a copy of a decision of Justice Hoilett of the Ontario Superior Court of Justice dated September 26, 2003 [United Kingdom v. Woolley, [2003] O.J. No. 3805 (QL)]. On October 7th, Mr. Froom's counsel responded, in writing, to the respondent's submission.

ISSUE

[14]The issue, leaving aside for the moment the various grounds for judicial review argued by the applicant, is whether or not the Court should decline jurisdiction and refuse to exercise its discretion to hear the application for judicial review of the ATP. The issue is delineated in this manner because the respondent, at the hearing, conceded that "Section 18.1 of the Federal Court Act makes it impossible to argue that the decision of the Minister is not a decision within the meaning of the section" or that the Court lacks jurisdiction to review it. Thus, if I decline jurisdiction, that will end the matter. However, should I conclude otherwise, the applicant's grounds for review must be examined.

OVERVIEW OF THE POSITIONS OF THE PARTIES

[15]Mr. Froom notes that this is a case of first impression and that no authority exists regarding judicial review of the ATP by the Federal Court. It is beyond dispute that the Act does not oust the jurisdiction of the Federal Court in relation to section 15 of the Act: Froom No. 2. He argues that the decision to issue the ATP should not be treated any differently from any other decision made by any other Minister. Most importantly, it is urged that I should assume jurisdiction because there is nowhere else to go. The law is clear--the extradition judge lacks jurisdiction to quash an ATP.

[16]The respondent agrees that Mr. Froom cannot obtain an order to quash the ATP from the extradition judge, but asks that I look beyond the manner in which Mr. Froom characterizes the issue (inability to quash the ATP) and examine the grounds upon which he relies in support of his request. If the grounds can be argued and determined elsewhere, within the provisions of the Act and without resort to section 18.1 [as enacted by S.C. 1990, c. 8 s. 5; 2002, c. 8, s. 27] of the Federal Courts Act, R.S.C., 1985, c. F-7 [s. 1 (as am. by S.C. 2002, c. 8 s. 14)], as amended, then an adequate alternative remedy exists and I should, in that case, decline to exercise my discretion. Alternatively, the respondent contends that the Minister's decision is an interlocutory one and, as such, is not amenable to judicial review.

STATUTORY SCHEME AND JURISPRUDENCE

[17]The relevant statutory provisions are attached to these reasons as Schedule A. The relevant articles of the extradition agreement between Canada and the United States [Treaty on Extradition between the Government of canada and the Government of the United States of America, December 3, 1971, [1976] Can. T.S. No. 3] are attached as Schedule B. Because subsection 3(1) and section 15 of the Act are of particular significance they are, for ease of reference, reproduced here. Subsection 3(3) is omitted because it does not apply to Mr. Froom.

3. (1) A person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner for the purpose of prosecuting the person or imposing a sentence on--or enforcing a sentence imposed on--the person if

(a) subject to a relevant extradition agreement, the offence in respect of which the extradition is requested is punishable by the extradition partner, by imprisoning or otherwise depriving the person of their liberty for a maximum term of two years or more, or by a more severe punishment; and

(b) the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada,

(i) in the case of a request based on a specific agreement, by imprisonment for a maximum term of five years or more, or by a more severe punishment, and

(ii) in any other case, by imprisonment for a maximum term of two years or more, or by a more severe punishment, subject to a relevant extradition agreement.

. . .

15. (1) The Minister may, after receiving a request for extradition and being satisfied that the conditions set out in paragraph 3(1)(a) and subsection 3(3) are met in respect of one or more offences mentioned in the request, issue an authority to proceed that authorizes the Attorney General to seek, on behalf of the extradition partner, an order of a court for the committal of the person under section 29.

(2) If requests from two or more extradition partners are received by the Minister for the extradition of a person, the Minister shall determine the order in which the requests will be authorized to proceed.

(3) The authority to proceed must contain

(a) the name or description of the person whose extradition is sought;

(b) the name of the extradition partner; and

(c) the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person or the conduct in respect of which the person was convicted, as long as one of the offences would be punishable in accordance with paragraph 3(1)(b).

(4) A copy of an authority to proceed produced by a means of telecommunication that produces a writing has the same probative force as the original for the purposes of this Part.

[18]Before considering the submissions and arguments of the parties in more detail, it is helpful to review the historical as well as the present statutory scheme and the fundamental principles arising from the jurisprudence in relation to extradition matters.

[19]Extradition is the surrender by one state, at the request of another, of a person within its jurisdiction who is accused or has been convicted of a crime committed within the jurisdiction of the other state: Anne Warner La Forest, La Forest's Extradition to and from Canada, 3rd ed. (Aurora: Canada Law Book, 1991). It is primarily a function of the executive and a product of international agreements made between states: Canada v. Schmidt, [1987] 1 S.C.R. 500 (Schmidt). It is a practice that has deep historical roots in Canada and has been a necessary component of the administration of justice since before Confederation. Extradition procedure is founded on the concepts of reciprocity, comity and respect for differences in other jurisdictions: Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 (Kindler).

[20]An overview of the extradition process (including the 1992 amendments) is provided in United States of America v. Kwok, [2001] 1 S.C.R. 532 (Kwok). The summary that follows, with the exception of the passages that deal with the 1999 Act, is derived principally from Kwok and includes the authorities referred to by Madam Justice Arbour.

[21]In Canada, the Act governs the extradition process and codifies into domestic law Canada's international obligations regarding surrender. The first phase is judicial in nature while the second is essentially an executive phase. During the judicial phase, the extradition judge (also referred to as the committal judge) presides over an extradition hearing for the purpose of determining whether there is sufficient evidence to order the individual committed for surrender. For a warrant of committal to issue, two criteria must be met. First, the evidence presented must disclose a prima facie case that the conduct alleged to have occurred within the jurisdiction of the requesting states constitutes a crime there, would constitute a crime in Canada if committed here and is contemplated in the bilateral treaty (the double criminality rule). Second, the tendered evidence must, on a balance of probabilities, establish that the person sought to be extradited is the person before the court (the identity issue).

[22]In an extradition (committal) hearing, the extradition judge is akin to a judge conducting a preliminary inquiry in that he or she has to determine the sufficiency of evidence. Like a preliminary inquiry judge, the extradition judge has to refrain from weighing the evidence or assessing credibility: United States of America v. Shephard, [1977] 2 S.C.R. 1067 (Shephard). The extradition judge cannot consider how foreign officials gathered the evidence, weigh the effect of any delay on the trial in the requesting state, or consider defences that could be raised at trial: Argentina v. Mellino, [1987] 1 S.C.R. 536 (Mellino). The extradition judge's statutory functions are modest and limited: Schmidt, supra; McVey (Re); McVey v. United States of America, [1992] 3 S.C.R. 475 (McVey); United States of America v. Lépine, [1994] 1 S.C.R. 286 (Lépine).

[23]Before the 1992 amendments, the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, appendix II, No. 44]] applied to extradition proceedings in the sense that the treaty, the extradition hearing in Canada, and the exercise of the executive discretion to surrender the individual all had to conform to the requirements of the Charter. The extradition judge, however, did not have the power to adjudicate on Charter issues or to grant Charter remedies.

[24]If the extradition judge determined that there was sufficient evidence to commit, he or she signed a warrant or order for committal and it was forwarded to the Minister of Justice along with the judge's report. The second stage of the process then began and during that stage, the Minister decided whether the individual should be surrendered to the requesting state. This phase of the process has been considered to be essentially political in nature: McVey, supra; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631 (Idziak).

[25]These phases were additionally considered to be distinct and separate. The extradition judge could not order the actual surrender of the individual to the foreign state because that was the exclusive responsibility of the executive. Conversely, the Minister could not exercise the power to surrender an individual until that person had been committed by the judge. In the exercise of the executive discretion to surrender, the Minister of Justice must have regard to Charter considerations: United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469 (Cotroni).

[26]Before the 1992 amendments, the Act provided for review of the committal decision by way of habeas corpus. Jurisdiction to issue a writ of habeas corpus lay with a superior court judge sitting on habeas corpus review of the extradition judge's decision to commit. In determining the legality of the fugitive's detention and/or committal, the habeas corpus judge had a limited jurisdiction to consider specific Charter violations and to grant remedies under section 24 of the Charter. This power could not be used to pre-empt the ministerial decision regarding surrender, although there did exist an exceptional power, under section 7 of the Charter, to stay extradition proceedings in circumstances where the decision to surrender an individual for trial in a foreign country would, in the particular circumstances, violate the principles of fundamental justice: Mellino, supra.

[27]Barring obvious or urgent circumstances, a decision to stay the extradition process was only open to a judge of the Federal Court Trial Division sitting in review of the Minister's decision to surrender the individual pursuant to the Federal Court Act (now the Federal Courts Act). The need to await the exercise of executive discretion was stressed in Schmidt, supra.

[28]Thus, before the 1992 amendments, both the committal proceedings and judicial review of them were curtailed by the existence of the second, executive stage of the extradition process. The latter had to be allowed to follow its course. The dual track of judicial and executive decision-making, each accompanied by its own review process, was cumbersome and time-consuming. An appeal from the habeas corpus review of the committal decision could be taken as of right to the provincial court of appeal and, with leave, to the Supreme Court. The separate ministerial decision concerning surrender, if judicially reviewed in the Federal Court, was subject to further potential appeals to the Federal Court of Appeal and, with leave, to the Supreme Court.

[29]On December 1, 1992, significant amendments to the Act came into force. Parliament streamlined and simplified the extradition procedure. The amendments provided for a single right of review to the applicable provincial court from both the decision of the extradition judge and that of the Minister. The provincial court of appeal received "exclusive original jurisdiction" to review the judicial decision to commit and the executive decision to surrender.

[30]The amendments also permitted a possible merger of those functions by expressly allowing the court to defer the hearing of an appeal from a committal decision until the Minister's decision with respect to surrender was made, unless the Minister filed a notice of postponement with the court of appeal. In that case, the court of appeal would proceed with the appeal from committal rather than await the ministerial decision on surrender.

[31]Recourse to the writ of habeas corpus to review the committal was eliminated. The powers of the committal judge were expanded to include all the powers that could previously be exercised only by a superior court judge sitting in habeas corpus. Hence, there was a transfer of Charter jurisdiction to grant remedies related to an issue properly before the extradition judge. As stated, the provincial appellate court was granted exclusive jurisdiction regarding judicial review of the Minister's decision to surrender. The 1992 amendments were not, however, meant to alter the fundamental two-tiered structure of the Act. Both the extradition judge and the Minister maintained their separate functions and jurisdictions within the process.

[32]A new Act came into force on June 17, 1999. Significant changes were made. The rationale underlying the 1999 Act is discussed in United States of America v. Yang (2001), 56 O.R. (3d) 52 (C.A.) (Yang). Mr. Justice Rosenberg, writing for the Court, notes that Canada wished to modernize its extradition process. The process, as it existed, did not easily accommodate modern offences and the increasingly global nature of crime itself. Of particular concern was the difficulty encountered when a requesting state with a different legal system from that of the requested state had to comply with the evidentiary requirements of the requested state. Bilateral negotiations ensued and during this time, the growth in transnational crime sparked worldwide initiatives to modernize extradition--to make it simpler and more expeditious. Another important consideration for Canada was its obligation to cooperate with the United Nations tribunals that oversee trials of war crimes and crimes against humanity.

[33]The 1999 Extradition Act contains: the rule of double criminality (section 3); time limits on proceedings against a person arrested on a provisional warrant (sections 14, 21); the right to apply for bail (sections 19, 20); the right of the Minister to seek assurances from the extradition partner (section 40 [as am. by S.C. 2000, c. 24, s. 51; 2001, c. 27, s. 250]); the right to attach conditions that individuals not be prosecuted for other offences--the rule of speciality (section 40); prohibition against surrender for political crimes, certain military crimes and offences barred by a limitation period (section 46); and the right of the Minister to refuse surrender in cases concerning, among other things, autrefois acquit or convict, persons convicted in their absence and having no right to have the case reviewed and young persons where the procedure in the extradition partner is inconsistent with the fundamental principles governing the Canadian legislation. The Act maintained the 1992 provisions for appealing the committal (section 49) and reviewing the decision of the Minister to surrender (section 53): Yang, supra.

[34]The rules of evidence in the new Act are found at sections 31 through 37. Section 32 provides that evidence, not otherwise admissible under Canadian law, is admissible at the extradition hearing and can be used to make out the case for committal under section 29. The contents of the record of the case are described in section 33. The record of the case need only contain a summary of the evidence. A judicial or prosecuting authority must certify that the evidence summarized or contained in the record of the case is available for the trial and that the evidence is sufficient under the law of the extradition partner to justify prosecution or was gathered under the law of the extradition partner. A document is admissible whether or not it is solemnly affirmed or under oath. Thus, various types of evidence that would not be admissible at a Canadian trial are admissible at the extradition hearing. In particular, hearsay is admissible although it would not meet a common law or statutory exception and would not meet the necessity and reliability requirements set out in the more recent cases of the Supreme Court: Yang, supra.

[35]The ATP was introduced in the 1999 Act. The ATP is defined by section 15 and its contents are prescribed. To issue the ATP, the Minister must be satisfied that the conditions set out in paragraph 3(1)(a) and subsection 3(3) have been met. The authority to proceed sets out the Canadian offence that is equivalent to the offence allegedly committed in the extradition partner state. This represents a departure from previous practice. Before 1999, the proceeding was commenced by way of diplomatic note. The note specified the offences for which extradition was sought in the requesting state. The translation to comparable Canadian offences was done by the extradition judge during the committal hearing. Equivalency is now determined by the Minister. I will discuss the ATP, in more detail, later in these reasons.

[36]The previously discrete two-tiered system of the extradition process was not altered with the coming into force of the 1999 Act. Although variously described as consisting of two, three or four stages, there remains a function for the Minister and a function for the extradition judge. In Federal Republic of Germany v. Schreiber, [2000] O.J. No. 2618 (Sup. Ct.) (QL) (Schreiber), Mr. Justice Watt of the Ontario Superior Court of Justice describes the functions as follows [at paragraph 72]:

Under the Act, the Minister and the extradition judge occupy two (2) very different solitudes. The Minister has a role at the beginning and the end of the extradition process. The judge discharges his or her function in the middle. Each operates independently of the other, except to the extent that the Minister's final involvement is contingent on a judicial order for committal. Neither intrudes into the other's area of responsibility. Neither reviews the other's determination or decision.

ADEQUATE ALTERNATIVE REMEDY

The Respondent

[37]The respondent argues that Mr. Froom's application is nothing other than an attempt to avoid going through the extradition process. The "quashing of the ATP" per se is not the only remedy available. It is submitted that there are many remedies available to Mr. Froom and all are contained, in one form or another, within the Act. I am urged to have regard to the entire extradition process and conclude that the judicial phase of that process lies exclusively with the provincial courts.

[38]The respondent relies on the various Supreme Court decisions that categorize extradition as an executive function involving political decisions made in furtherance of Canada's international obligations. Although intended to be an expedited process, it incorporates procedural safeguards for those whose extradition is sought. The procedural safeguards are contained in the Act and the Act constitutes a complete code in this regard. The argument is that extradition matters historically have been, and should continue to be, left to the superior courts of the provinces where there is expertise in the area. While the Federal Court has expertise in relation to judicial review of decisions, it lacks expertise in this subject-matter.

[39]The respondent relies heavily on Reza v. Canada, [1994] 2 S.C.R. 394 (Reza) and Fast v. Canada (Minister of Citizenship and Immigration) (2001), 41 Admin. L.R. (3d) 200 (F.C.A.) (Fast). In Reza, the respondent Minister of Employment and Immigration sought to stay Reza's application in the Ontario Court (General Division) seeking declarations and injunctive relief in relation to the Immigration Act, R.S.C., 1985, c. I-2. The Minister was successful and the trial court, after concluding that it had jurisdiction to grant the relief, declined to do so, on the basis that the review of immigration matters should be left with the Federal Court of Canada. The Ontario Court of Appeal [Reza v. Canada (1992), 11 O.R. (3d) 65 (C.A.)] (Madam Justice Abella dissenting) reversed the trial judge, holding that the issue was a constitutional one, jurisdiction was concurrent and the choice of court should lie with the applicant. The Supreme Court concluded that the trial judge had properly exercised his discretion on the basis that Parliament had created a comprehensive scheme of review of immigration matters, the Federal Court was an effective and appropriate forum and there was, therefore, no reason to interfere with the exercise of the trial judge's discretion.

[40]In Fast v. Canada (Minister of Citizenship and Immigration), [2002] 1 F.C. 257 (T.D.), the respondent Minister of Citizenship and Immigration applied to strike the application for judicial review of the Minister's notice of proposed revocation of citizenship. Mr. Justice Lemieux concluded that judicial review was not available. He determined that section 18.5 [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act [R.S.C., 1985, c. F-7] barred the application. The Federal Court of Appeal dismissed the appeal, substantially agreeing with the decision of Mr. Justice Lemieux. The Court added that even if section 18.5 had not applied, the Court could have exercised its discretion to refuse the judicial review application on the basis that the reference procedure contemplated by section 18 of the Citizenship Act, R.S.C., 1985, c. C-29 with respect to revocation of citizenship was an adequate alternative remedy.

[41]Relying on a number of authorities, the respondent contends that the applicant's challenges, in substance, deal with the sufficiency or nature of the evidence relied on by the United States in relation to the alleged offence; matters relative to American law; non-compliance with the treaty; and, non-compliance with the Act. Some of these matters have been definitely determined by the Supreme Court and the remainder can be dealt with by the extradition judge, the Minister, the provincial appellate court (in this case the Ontario Court of Appeal) or, if Mr. Froom is surrendered, by the trial court in the United States. Thus, there exists an adequate alternative remedy and I should decline to exercise my discretion to grant judicial review.

The Applicant

[42]Mr. Froom says the opposite. He submits that Schreiber, supra, is unequivocal--the extradition judge is obliged to accept the statement of the Minister that the alleged conduct corresponds to the named Canadian offences. The provincial appellate court is similarly restricted: United States of America v. Kucan (2001), 151 O.A.C. 131 (C.A.) (Kucan). It is argued that this initial decision of the Minister, described by Mr. Justice Gibson in Froom No. 2, supra as the second phase in the process, is reviewable only by the Federal Court pursuant to section 18.1 of the Federal Courts Act because there is no jurisdiction for review elsewhere. The provincial appellate court can hear an appeal of a committal order, but the subject-matter will not include the Minister's decision to issue an ATP because the extradition judge is obliged to accept it.

[43]Mr. Froom acknowledges that under subsection 43(1) of the Act, he may make submissions to the Minister on "any" ground, but only with respect to the decision to surrender. The provincial appellate court can entertain an application for judicial review of the Minister's surrender decision, but will be restricted to the record upon which the decision was made. The decision to issue the ATP will not be part of that record.

[44]The Reza and Fast decisions, supra are distinguishable, says Mr. Froom. In Reza, there was concurrent jurisdiction but the Ontario Court, recognizing the Federal Court's expertise in immigration matters, deferred to it. The extradition judge's expertise is with respect to the sufficiency of evidence and committal; jurisdiction does not extend beyond those areas. In Fast, all issues raised in the judicial review proceeding could be raised during the revocation reference hearing. That is distinct from this situation where issues of delegation and abuse of process cannot be determined in the context of the ATP.

[45]Last, Mr. Froom contends that this Act is new and section 15 is a new provision with a new role for the Minister. Although the Federal Court's jurisdiction with respect to judicial review of section 40 (surrender) decisions has been ousted by subsection 57(1) [as am. by S.C. 2002, c. 8, s. 141], that is not so for section 15 (ATP) decisions. The only mechanism available for judicial review of the latter is pursuant to section 18.1 of the Federal Courts Act.

Analysis

[46]Mr. Froom's extradition is sought by the United States of America pursuant to the provisions of the Extradition Act and the treaty between Canada and the United States. The Minister of Justice (section 2) is responsible for the implementation of extradition agreements, the administration of the Act, and dealing with requests for extradition (section 7). The ATP is the document whereby the Minister of Justice authorizes the Attorney General of Canada, on behalf of the requesting state, to seek a committal order under section 29. The ATP is a condition precedent and without it there can be no committal hearing.

[47]In exercising his statutory authority to administer the Act and to engage his statutory discretion to issue an ATP under subsection 15(1), the Minister must receive a request for extradition and be satisfied that the requirements of paragraph 3(1)(a) and subsection 3(3) of the Act have been met with respect to at least one of the offences mentioned in the request. Paragraph 3(1)(a) deals with extradictable conduct. It does so by making reference to the punishment provided for the offence in the jurisdiction of the extradition partner. The section also refers to the purpose of the request of the extradition partner. It may be for any one of three purposes: prosecuting the person; imposing a sentence on the person; or enforcing a sentence earlier imposed on the person in the requesting state for an offence described in paragraph 3(1)(a). It is inevitable that the Minister will be obliged to consider the purpose of the extradition request in determining whether the requirements of paragraph 3(1)(a) have been met: Schreiber, supra.

[48]In relation to Mr. Froom, because paragraph 3(1)(a) is subject to a relevant extradition agreement, "punishment" is determined by reference to Article 2 [as am. by [1991] Can. T.S. No. 37, Art. 1] of the Treaty where the alleged offence is punishable by the "laws of both Contracting Parties by imprisonment or other form of detention for a term exceeding one year or any greater punishment".

[49]The contents of the ATP are prescribed in subsection 15(3). Because of paragraph 15(3)(c), the Minister must specify in the ATP the Canadian offence that corresponds to the conduct for which the person is sought. The combined effect of sections 15 and 29 is to implement the double criminality requirement. The authority to proceed sets out the Canadian offence that is equivalent to the offence allegedly committed in the extradition partner state. The extradition judge is therefore not concerned with foreign law. The judge's task is merely to determine whether there is evidence of conduct that would amount to the Canadian offence described in the ATP: Yang, supra.

[50]When regard is had to section 14 of the Act, it appears that until the supporting documents from the requesting state have been received, the ATP will not be issued. Section 14 provides for the discharge of a person who has been provisionally arrested (whether detained or released on judicial interim release) when the extradition request, the supporting documents and the ATP have not been received within the specified time limits. In paragraphs 14(1)(b) and 14(1)(c), the clock starts to run after the formal request and the supporting documents have been provided.

[51]Thus, the ATP has two functions in the extradition process. It gives notice to the person sought of what is alleged against him and it ensures that the Minister's decision to authorize the seeking of committal on behalf of the requesting state is made in a timely way: United States of America v. Drysdale (2000), 32 C.R. (5th) 163 (Ont. Sup. Ct.). As previously stated, the extradition judge is obliged to accept the statement of the Minister that the alleged conduct corresponds to the named Canadian offences.

[52]The resolution of the question regarding the availability of an adequate alternative remedy engages issues of both statutory interpretation and a consideration of the appropriate circumstances under which the Court should decline to exercise its discretion to entertain an application for judicial review because of the existence of an adequate alternative remedy. The fundamental principle is the same for both issues. Rizzo and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 and its progeny dictate a purposive approach to statutory construction requiring that regard be had to the purpose of the enactment and the intention of Parliament. Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3 (Matsqui) instructs that the Court, when determining whether to decline to exercise discretion, must adopt a purposive and functional approach to ensure that the inquiry is focussed directly on the intent of the legislator rather than on an interpretation of isolated provisions. Matsqui indicates that the purposive analysis leads to favouring the "process approach". The factors to consider when determining whether to embark upon a judicial review, or require an applicant to proceed through an alternate route, include the convenience of the alternative remedy, the nature of the error and the nature of the "appellate" body. The factors are not closed and it is for the courts, in particular circumstances, to isolate and balance those factors that are relevant. It is not accurate to ask which is the better forum in which to consider, at first instance, the issue raised. Rather, the question should be--is the alternative forum an adequate forum?

[53]Bearing these principles in mind, I am also cognizant that, as a general proposition, extradition laws should be liberally construed so as to achieve the purpose of the Treaty. Extradition is intended to be an expedited process designed to keep expenses to a minimum and to ensure prompt compliance with Canada's international obligations. In McVey, supra, Mr. Justice La Forest stated 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. Moreover, extradition treaties support the endeavours of law enforcement agencies on both sides of our international borders. It is certainly appropriate that criminals should be prosecuted in the country where the crime was allegedly committed and where the persons and witnesses most interested in bringing the individual to trial may live. As well, the state from which an individual is requested has a legitimate interest in seeing that it does not become a haven for criminals: Idziak, supra. Finally, the Court should be reticent to cause serious interference with the workings of the system.

[54]I have wrestled with the positions advanced by each of the parties and I have concluded that judicial review of an ATP does lie, in an appropriate case, and that the Federal Court, as the law now stands, has jurisdiction to entertain and determine an application for judicial review of the Minister's decision before the matter proceeds to the committal hearing. In arriving at this conclusion, I have balanced the above-noted principles and factors with those that I discuss below.

[55]The ATP is new to Canada, but it is not a novel concept. Mr. Justice La Forest, in McVey, explains the procedure in England and notes that the British and Canadian Acts are substantially the same except that in England, the Secretary of State considers, at the outset, whether the conditions for surrender under the treaty are met. If the Secretary of State concludes that the conditions are met, he issues an order to proceed. It is readily apparent that our present Act now contains a similar provision. Although not referred to by either of the parties, the decision of Rees v. Secretary of State for the Home Dept., [1986] 2 All E.R. 321 (H.L.) discussed (under the previous British Act) the necessary conditions to enable the Secretary of State to issue the order to proceed as well as the availability of review of the order. Relevant, for present purposes, were the questions dealing with the latter, i.e. the power to review the making of the order by the Secretary of State. The opinion of the House of Lords was succinctly stated: the police magistrate (under Canadian legislation the committal judge) did not have power to review the exercise of the Secretary of State's discretion to make an order to proceed. The High Court did have power to review the exercise of the Secretary of State's discretion to make the order although a successful challenge to such exercise could only very rarely arise. I note that the "order to proceed" terminology was replaced by the words "authority to proceed" when the Extradition Act, 1989 (U.K.) [1989, c. 33] was enacted in Britain.

[56]The ATP is the foundation block upon which the extradition process stands. The Minister, in issuing the ATP, is exercising a statutory power contemplated by section 2 of the Federal Courts Act. Section 18.1 of that Act normally vests jurisdiction for the review of such decisions in the Federal Court. While, pursuant to subsection 57(1) of the Extradition Act, the Federal Court has no jurisdiction to review the Minister's surrender decision, no similar provision regarding judicial review of the decision to issue an ATP exists.

[57]Decisions of the executive are subject to judicial review in accordance with the principles set out in the relevant authorities: United States of America v. Sagarra (2003), 226 Nfld. & P.E.I.R. 321 (Nfld. C.A.) (Sagarra). Blind judicial deference to executive judgment cannot be expected . . . judicial interference must be limited to cases of real substance: Schmidt, supra. It is beyond dispute that the Minister cannot indiscriminately issue an ATP. In my view, in circumstances where strong grounds exist for arguing that the Minister acted arbitrarily, in bad faith, or that the Minister was motivated by an improper motive, or motivated by irrelevant considerations, Parliament could not have intended (even when streamlining and modernizing the process are accorded significant respect) that the decision would not be reviewable. If that were the intent, it would violate the rule of law.

[58]I regard it as settled law that the extradition judge has no jurisdiction to review the ATP: Kucan, supra; Schreiber, supra; Sagarra supra; Thailand v. Karas, 2001 BCSC 72; [2001] B.C.J. No. 124 (S.C.) (QL). The provincial appellate courts, on an appeal from a committal order, are similarly restricted: Kucan; Sagarra. It is also clear that section 7 of the Charter permeates the entire extradition process: United States of America v. Shulman, [2001] 1 S.C.R. 616 (Shulman). It is not at all clear under what circumstances, if at all, the provincial appellate courts might entertain judicial review with respect to an ATP.

[59]It appears to me that if a committal order has issued, a positive surrender decision is made and judicial review is taken with respect to the surrender order, the issuance of the ATP, at that juncture, is moot. If the nature of the alleged error regarding the Minister's decision should fall within one of the categories discussed above and the individual's liberty is arguably restricted (an individual subject to provisional arrest or released conditionally), in my view, judicial review should be available at the outset of the process. Requiring the individual to proceed with a committal hearing, and if committed, to appeal the committal order, and if unsuccessful, to make submissions to the Minister, and if unsuccessful, then (but only then), to address the impropriety of the ATP where there may possibly, but not necessarily, be a remedy in judicial review proceedings before the provincial appellate court, does not provide an adequate or appropriate alternative remedy or forum. It is unfair and fundamentally unjust to insist that an individual undergo, and perhaps complete, each stage of the process in order to challenge the Minister's decision, on the basis of the grounds I have enumerated, when a remedy may ultimately be beyond reach within that process. If a remedy is ultimately found to be within reach, the process, while providing an alternative remedy, does not, in my view, provide an adequate one.

[60]There is a caveat to my conclusion. I caution that it is not open to an individual, by a mere characterization of the application as one to quash the ATP, to obtain judicial review. Where the underlying grounds disclose arguments that fall squarely within the jurisdiction of the extradition judge, or the Minister, or where the grounds deal with arguments in areas where the law is settled, judicial review of the ATP at the outset would not be available. Were it otherwise, the result would be to elevate form over substance. At the end of the day, the circumstances under which judicial review of the ATP is available will be exceedingly rare. This is in keeping with the comment, in Schmidt, supra, that judicial intervention must be limited to cases of real substance. It is necessary to ensure that the Minister is permitted to act in a manner that preserves the effectiveness of the extradition process and, at the same time, conforms to what is regarded as fundamentally just.

INTERLOCUTORY DECISION

The Respondent

[61]The respondent's alternative submission is that judicial review should not be entertained because the Minister's decision to issue the ATP is an interlocutory one. The respondent's counsel readily acknowledged an inability to provide any authority on point. Four decisions were offered for guidance. Two of those deal with the availability of review with respect to evidentiary rulings made by a tribunal during the course of its hearing. Another is concerned with the issuance of an interlocutory injunction pending disposition of a complaint to the Canada Human Rights Commission and the fourth involves an appeal of a decision that was not final.

[62]The respondent argues that the ATP is a preliminary or interlocutory decision. In support, he points to the relative simplicity of the decision in question, the procedure set out in the statute and the fact that since committal and surrender have yet to be determined, judicial review may never be necessary. Relying on Zündel v. Canada (Human Rights Commission), [2000] 4 F.C. 255 (C.A.), the respondent notes that in general, absent jurisdictional issues, rulings made in the course of a tribunal's proceedings should not be challenged until a tribunal has completed its process because the judicial review may be totally unnecessary; unnecessary delays and expenses associated with appeals can bring the administration of justice into disrepute, and courts have adopted this principle.

[63]The respondent also refers to Szczecka v. Canada (Minister of Employment and Immigration) (1993), 116 D.L.R. (4th) 333 (F.C.A.) wherein it was held that absent special circumstances, there should not be appeals or judicial reviews of interlocutory decisions. The breaking up of cases and the resulting delays and expenses interfering with the sound administration of justice are to be avoided. Additionally, there will not be any basis for judicial review, especially immediate review, when at the end of the proceedings, some other appropriate remedy exists. On the basis of Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149 (F.C.A.), the respondent submits that the same principles apply with respect to an appeal of a decision that is not a final determination of rights.

The Applicant

[64]Mr. Froom argues contra. Relying on Reebok Canada v. Minister of National Revenue (1995), 179 N.R. 300 (F.C.A.), he notes the Court's statement that the question of whether a judgment or order is final or interlocutory is sometimes not free of difficulty. He refers to the meaning of "final judgment" set out in subsection 2(1) of the Federal Courts Act, wherein it is defined as "any judgment or other decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding". Applying the relevant words in the definition to his circumstances, he contends that the words emphasize that the truncation or elimination of an essential issue in a case or application can result in a final determination even though the case "in the round", so to speak, continues on other issues. Relying again on the fact that the quashing of the ATP is not a remedy that can be obtained elsewhere, he maintains that the decision is a final one. Last, Mr. Froom submits that here, at the beginning of the process, "the conduct and circumstances may be such as to disentitle the Minister to initiate proceedings".

Analysis

[65]The submissions were not overly helpful with respect to this issue. Generally, in the legal sense, we refer to matters as being either "interlocutory" or "final" in the context of actions and judicial orders. In matters of judicial review, where the subject matter involves a decision, the characterization can become clouded. This is particularly so when the decision is one that involves the exercise of ministerial discretion rather than one that, in substance, is analogous to a ruling by a tribunal during the course of its proceedings. Although the Zündel, supra and Szczecka, supra decisions were concerned with evidentiary rulings by tribunals, the general principles arising from them in relation to applications for judicial review are instructive.

[66]The uniqueness of extradition proceedings, with their various and complex considerations, constitutes another component of this analysis. It is evident, from the contents of the "Statutory Scheme and Jurisprudence" subtitle in these reasons, that significant distinctions exist between extradition and the other areas with which we are concerned on judicial review applications. Here, we have not only a proceeding, but a process wherein mutually exclusive and distinct phases exist. The respondent's arguments on this particular issue fail to address this characteristic. The respondent's position that the ATP is interlocutory in nature and does not determine substantive rights flies in the face of counsel's concession, at the outset of the hearing, that it is impossible to argue that the decision is not one within the meaning of section 18.1 of the Federal Courts Act and within the jurisdiction of this Court.

[67]The issuance of the ATP is the role of the Minister. As discussed in Schreiber, supra, the Minister discharges the functions assigned to him on either side of the extradition judge whose function is discharged in the middle of the process. The Minister's decision, in so far as it determines whether or not the matter will proceed to an extradition hearing, is arguably final. This is illustrative of the discreteness of each of the phases in the process and the contextual distinction between extradition matters and other areas with which we are normally concerned. The role of the judge in the middle of the process is subject to appeal and the role of the Minister at the end of the process is subject to judicial review. The Act is silent regarding review of the Minister's role at the outset of the process.

[68]However, in my view, I need not determine, for purposes of this application, whether the decision is final or interlocutory. Both Zündel, supra and Szczecka, supra, leave the door open for the Court to proceed with judicial review of interlocutory decisions where there are special circumstances. I have determined and described the special circumstances that exist, in the context of the issuance of an ATP, in paragraphs 55 through 60 of these reasons. I do not propose to repeat them. Suffice it to say that where special circumstances do exist, it is open to the Court to entertain an application for judicial review.

APPLICANT'S GROUNDS OF REVIEW

[69]Mr. Froom personally prepared his affidavit with its attached exhibits as well as his memorandum of fact and law. They are lengthy. The contents of his affidavit were of sufficient concern to the respondent to prompt the filing, prior to the scheduled hearing, of a motion to strike significant portions. The Motions Judge concluded that the affidavit, its admissibility and weight were matters better left for determination by the application judge.

[70]It is not uncommon, when litigants are self-represented, to find their documentation wanting. Established rules, procedures and evidentiary matters, with their attendant niceties and distinctions, present challenges for lay persons not familiar with them. Mr. Froom was represented by counsel at the hearing. His counsel consolidated and refined the arguments into an organized and comprehensive framework that included specific reference to the relevant paragraphs of the affidavit and the authorities upon which he relied.

[71]I will address the arguments as presented by counsel. I do not intend to deal with each of the various paragraphs in Mr. Froom's affidavit that offend the relevant rules of evidence. I will say only that those statements that constitute opinion, speculation and legal argument have not been considered.

[72]In an effort to provide cogency and cohesiveness to my analysis of Mr. Froom's grounds for review, I will identify each ground as an issue and, in turn, will identify the subsidiary issues arising from the global issue. I will then determine whether or not the ground (including each of its components) meets the threshold set out earlier in these reasons. For clarity, the grounds (or at least one of them) must establish that the Minister acted arbitrarily, or in bad faith, or was motivated by an improper motive or was motivated by irrelevant considerations. Grounds that fall squarely within the jurisdiction of the extradition judge or the Minister will not meet the threshold nor will those in areas where the law is settled to the extent that it renders the arguments bereft of any chance of success.

[73]Having established the parameters for the remainder of these reasons and assuming without deciding, again for purposes of cogency and cohesiveness, that one or more of Mr. Froom's grounds meet the threshold, I will address the applicable standard of review. The delineation of the grounds, the argument in relation to the grounds and my analysis will follow immediately thereafter.

THE STANDARD OF REVIEW

[74]In applying the pragmatic and functional analysis to arrive at the applicable standard of review, I have been guided by the decisions of the Supreme Court of Canada. I have had particular regard to the reasons in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; and Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226. The four factors of the pragmatic and functional analysis in this instance lead to a standard of patent unreasonableness.

[75]In relation to the first factor, the Act is silent regarding review or appeal of the Minister's discretionary decision to issue an ATP. This is a neutral factor.

[76]The expertise of the decision-maker is the most important factor. The Minister has expertise in political matters, international relations and the ramifications of the law of extradition. It is the Minister who must consider the good faith and honour of this country in its relations with other states: Idziak, supra. This necessitates a high level of deference.

[77]The third factor is the purpose of the provision in particular and the Act as a whole. The mandate of the Act is to codify into domestic law Canada's international obligations regarding surrender. It delineates the process for the handling of extradition matters. The purpose of the particular provision (section 15) is to determine whether the requesting state has provided the necessary information to satisfy the requirements of the treaty and the Act in relation to its request for extradition. The provision also provides the Minister with discretion to issue the ATP. This factor militates in favour of very high deference.

[78]The fourth factor is the nature of the problem and whether it relates to a determination of law or fact. Here, there is overlap between the third and fourth factors. The question in issue is one of mixed fact and law, but it is more fact intensive when regard is had to the statutory requirements involved. The Minister must determine whether the requesting state has provided sufficient information to satisfy the requirements set out in section 15. While this requires reference to the components of the particular section, whether those requirements are met is ultimately a question of fact. This factor requires high deference.

[79]Balancing these factors, I conclude that the applicable standard of review is patent unreasonableness.

NON-COMPLIANCE WITH TREATY

[80]Mr. Froom alleges that there was non-compliance with the Extradition Treaty between Canada and the United States in three respects.

(a) Article 9(1)

[81]This provision states that the request for extradition shall be made through the diplomatic channel. Mr. Froom alleges that a document described as Diplomatic Note No. 456 was sent from the United States Embassy in Ottawa to the offices of the International Assistance Group of the Department of Justice in Ottawa. The basis for his allegation is a facsimile header at the top of the note. The essence of his complaint is that the Diplomatic Note should have travelled from the American Embassy to the Department of Foreign Affairs, from the Department of Foreign Affairs to the Department of Justice, and that this routing should be evidenced by notations of communication. The Treaty should be interpreted to require all documents to be sent through the diplomatic channel to maintain the integrity of the process.

(b) Article 4(1)(ii)

[82]This provision dictates that extradition shall not be granted when the prosecution for the offence has become barred by lapse of time according to the laws of the requesting state. Mr. Froom argues that the Speedy Trial Act, 88 Stat. 2080 (1974), as amended 93 Stat. 328 (1979), prescribes a limitation period and that no regard was had to it. The first indictment was laid in 1998 and 3[frac12] years later an extradition request was made. The United States case law makes it clear that the Speedy Trial Act applies with respect to extradition.

(c) Article 9(3)

[83]This provision requires that when the request relates to a person who has not yet been convicted, it must also be accompanied by a warrant of arrest, issued by a judge or other judicial officer of the requesting state, and by such evidence as, according to the law of the requested state, would justify the individual's arrest and committal for trial if the offence had been committed there, including evidence proving the person requested is the person to whom the warrant of arrest refers. Mr. Froom argues that the warrant of the Honourable Michael B. Mukasey of the United States District Court, Southern District of New York, does not refer to conspiracy. For this reason, the ATP, to the extent it purports to deal with conspiracy, should be quashed for failure to comply with Article 9(3).

Analysis

[84]None of these arguments meet the threshold for judicial review. There is no allegation that the Minister acted arbitrarily, in bad faith, that he was motivated by an improper motive, nor that he was motivated by irrelevant considerations in relation to any of these submissions. Moreover, there is no evidentiary basis upon which such allegations could be sustained.

[85]Although I need not say more, I note that the Diplomatic Note No. 456 from the Embassy of the United States to the Department of Foreign Affairs and International Trade requests the extradition of Arthur Kissel, a.k.a Arthur Froom from Canada. The supporting documentation includes the record of the case and the statement of law. The statement of law consists of the legal statement prepared by the Assistant United States Attorney for the southern district of New York; the grand jury indictment of Sonia Lafontaine and Arthur Kissel dated March 29, 2000; sections of the United States Code, and the warrant for arrest issued by Honourable Michael B. Mukasey. The statement of law documents were accompanied by a certification as to their authenticity and execution signed by the Acting Deputy Director, Office of International Affairs, Criminal Division, U.S. Department of Justice in Washington, D.C.; a certification that the noted Acting Deputy Director is now and was, at the time the certification was signed, Acting Deputy Director, Office of International Affairs, Criminal Division, U.S. Department of Justice in Washington, D.C., signed on behalf of the Attorney General, John Ashcroft; a certification that the documents are authentic, signed on behalf of the Secretary of State, Colin L. Powell by Patrick O. Hatchett, Assistant Authentication, Office of the Department of State, and a certification by the Principal Consular Officer of Canada in the United States that the papers are documents to be used upon an application for extradition from the Government of the United States, authenticated by Patrick O. Hatchett.

[86]It is not for the courts to dictate where signatories to international treaties should direct their documentation. Diplomatic Note No. 456 complies with the requirements of Article 9. There is nothing in the Act or the Treaty that precludes receipt of the documents by the International Assistance Group, Department of Justice. Indeed, it is the Minister of Justice who is charged with responsibility for dealing with requests for extradition under section 7 of the Act.

[87]The Speedy Trial Act is a United States statute that establishes time limits for completing the various stages of federal criminal prosecutions. It provides statutory factors for the calculation of the time limits, both inclusions and exclusions. Most importantly, the statutory directed calculations are performed by the United States trial judge. The provision of the treaty prohibiting extradition when prosecution has become barred by lapse of time is intended to bring into operation statutes of limitations that prohibit prosecution for certain crimes after a stated lapse of time: Mellino, supra. The certified statement of law of the Assistant United States Attorney details the limitation period applicable to each of the charges against Mr. Froom and specifically states that charges have been laid for each within the Statute of Limitations. The Minister is entitled to rely on the material supplied with the requisition as proof of foreign law: McVey, supra. The objectives served by the extradition system require the existence of trust and good faith between nations and their officials and law enforcement agencies at many levels: Cotroni, supra.

[88]Should Mr. Froom proceed to an extradition hearing and be committed, it is open to him to raise the issue of the Speedy Trial Act with the Minister, pursuant to subsection 43(1) of the Act. That provision permits submissions on any grounds that would be relevant to the Minister in making a decision with respect to the surrender of the individual. If he is ultimately surrendered, Mr. Froom can address the matter before the United States trial judge.

[89]The argument regarding Article 9(3) is without foundation because the article does not require that all offences listed in the indictment be listed in the warrant.

[90]I reiterate that this ground of review does not meet the threshold for judicial review of a decision to issue an ATP. Even if it had met the threshold, it cannot be said that any of these arguments would result in a finding that the Minister's decision was patently unreasonable.

ATP IS A NULLITY

[91]Mr. Froom submits that the ATP, as framed, is a nullity because it lacks sufficient particularity to enable him to know the case he has to meet. Relying on Drysdale, supra, he notes the analogy between the ATP and the information or indictment in a criminal proceeding. He refers to the comments of Justice Dambrot that the ATP is of fundamental importance in the extradition hearing because the offences listed in it will provide the focus of the determination to be made.

[92]The genesis of Mr. Froom's argument is Brodie and Barrett v. The King, [1936] S.C.R. 188 (Brodie), now codified in section 581 [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 118] of the Criminal Code, R.S.C., 1985, c. C-46. Mr. Froom states that by virtue of subsection 601(11) [as am. idem, s. 123] of the Criminal Code, a preliminary inquiry judge has jurisdiction to hear a motion to quash an information. Subsection 24(2) of the Act vests the extradition judge with the powers of a justice under Part XVIII of the Criminal Code, with such modifications as circumstances may require. Thus, it is said that a motion to quash the ATP at the outset is available.

[93]Mr. Froom urges me to follow the approach of the British Columbia Supreme Court in United States of America v. Shull (unreported oral decision dated June 29, 2001, Vancouver Docket CC991440) (Shull) where the Court, after finding that the extradition judge has jurisdiction, quashed the ATP on the basis that, on its face, it lacked sufficient particularity. Even if I should not follow Shull, those authorities that have regard to both the ATP and the record of the case to determine the case to be met do not, submits Mr. Froom, provide assistance. His reasoning in this respect is that the reference to conspiracy does not disclose an offence known to law because he is alleged to have conspired with his wife. A husband and wife cannot conspire with each other: Kowbel v. The Queen, [1954] S.C.R. 498 (Kowbel).

[94]Additionally, it is said that while the allegation of fraud is a substantive count, Mr. Froom does not know what he is defending against because the record of the case contains acronyms and numbers as opposed to identifications. Similarly, in relation to the substantive count of money laundering, there is no allegation regarding completion of the offence, i.e. a payout by the insurance company. Moreover, the rule of specialty is compromised when there is no clearly worded ATP. The Act contains no provision for particulars and amendments can be made only on the request of the Attorney General pursuant to subsection 23(2).

[95]In summary, Mr. Froom argues that the extradition judge is powerless and is left with no choice but to sit through a proceeding that should be terminated before it begins because the charging document fails to disclose an offence known to law. The extradition judge will not be able to determine whether the conduct, had it occurred in Canada, constitutes an offence in Canada because the judge will not know "what actions correlate to which Canadian offences".

Analysis

[96]Mr. Froom does not argue, in relation to the sufficiency of the ATP, that the Minister acted arbitrarily, in bad faith, that he was motivated by an improper motive or that he was motivated by irrelevant considerations.

[97]While it is correct that the ATP is an important document, Mr. Froom's position in relation to its requirements is misguided. The ATP is not a "charging document" and Mr. Froom is not charged with any offence in Canada. Section 601 is found in Part XX rather than Part XVIII of the Criminal Code. Mr. Froom's submissions fail to distinguish between the statutory requirements regarding an information or indictment and those with respect to an ATP. The former are located in the Criminal Code and the latter in the Extradition Act. They are not the same.

[98]In the context of this extradition matter, the Minister, after receiving the request for extradition, may issue an ATP if satisfied that Mr. Froom's extradition is sought for the purpose of prosecution of offences punishable by one year or more. The contents of the ATP are mandated in subsection 15(3) and it must include:

15. . . .

(a) the name or description of the person whose extradition is being sought;

(b) the name of the extradition partner; and

(c) the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person . . . . [Emphasis added.]

[99]While the extradition process is an important part of our system of criminal justice, it would be wrong to equate it to the criminal trial process: Kindler, supra. It is an established principle that the fine or nice distinctions of criminal law are out of place in the law of extradition: McVey, supra.

[100]Mr. Justice La Forest, in speaking of the extradition crime as described by the requested state, opined that it is sufficient if the nature of the crime is known. As with the warrant (of arrest), the courts have not required particularity. They have, for example, found warrants that described the relevant crime as [at page 520] "fraud by an agent" or "stealing" to be sufficient (citations omitted). If discussions of that kind can now only be found in early cases, it is presumably because the principle that the technicalities of criminal law only apply to a limited extent in extradition cases is now well understood by the courts: McVey.

[101]The individual is entitled to know the case against him including the materials on which the requesting state is relying to establish its prima facie case: United States of America v. Dynar, [1997] 2 S.C.R. 462; Kwok, supra. The Act (subsection 33(1)) requires that the record of the case contain a summary of the evidence. To be admissible (subsection 33(3)), a judicial or prosecuting authority of the requesting state must certify that the summarized evidence is available for trial and either sufficient to justify prosecution by the requesting state or gathered in accordance with the laws of the requesting state. The record of the case includes any supplement added to it (subsection 33(5)). This information will be before the extradition judge and will be available to both the individual and counsel. It is available to Mr. Froom for it is included in his application record. It is also open to Mr. Froom (paragraph 33(1)(c)) to present evidence relevant to the issues of identity and prima facie case at the extradition hearing.

[102]Mr. Froom's submission that the rule of specialty is compromised where the ATP is not clearly worded lacks substance. His broad allegation stands without any argument in support of it. The doctrine of specialty prohibits the requesting state from trying the individual for any offences other than those for which extradition is granted (subsection 40(3) of the Act and Article 12 of the Treaty). The Act requires an extradition judge who commits an individual (subsection 38(1)) to transmit to the Minister a copy of the order, a copy of the evidence adduced at the hearing, as well as any report that the judge thinks fit. In such circumstances and in the absence of specific argument indicating otherwise, I fail to see how the doctrine of specialty is compromised. I note the recent decision of United States of America v. Reumayr (2003), 184 B.C.A.C. 251 (C.A.), where the British Columbia Court of Appeal allowed an application for judicial review of the Minister's surrender order in circumstances where it was not clear from the Minister's reasons whether the differences between the offences in the committal order and those in the surrender order were differences of form or substance.

[103]Regarding the co-conspirators argument, I note that Kowbel, supra, stands for the proposition that a husband and wife cannot be found guilty of conspiring with each other alone to commit an indictable offence. The grand jury indictment indicates conspiracy with respect to Sonia LaFontaine, a.k.a Sonia Froom and Arthur Kissel, a.k.a Arthur Froom and others known and unknown to the grand jury. A conspiracy must involve more than one person, even though all of the conspirators may not either be identified, or be capable of being convicted: Dynar, supra. The issue of whether the act charged is a crime under United States law is for the prosecutors in the United States to decide. The task of assessing whether there is sufficient evidence that the alleged offence, if committed in Canada, constitutes a crime is the duty of the extradition judge: McVey, supra.

[104]While the extradition hearing is not a full-fledged trial, neither is it a mere formality. If the material presented in the record of the case is so bereft of detail that the judge cannot determine its sufficiency, the judge will have to discharge the person sought for prosecution. That is not a question of the judge weighing the evidence or passing on its reliability, but of carrying out the functions assigned by statute: Yang, supra.

[105]In so far as Shull, supra is concerned, the case stands in isolation, has not been followed in British Columbia or elsewhere, and does not assist Mr. Froom in any event. In Shull, the Court determined that the extradition judge has jurisdiction to quash the ATP. If that were so, Mr. Froom would have no basis upon which to argue that the Federal Court should assume jurisdiction.

[106]In the result, Mr. Froom has not met the threshold for judicial review in relation to this alleged ground of review. Moreover, the essence of the arguments constitutes an attack on the sufficiency of evidence, a matter falling squarely within the jurisdiction of the extradition judge. If I am wrong in this respect, for the above-noted reasons, Mr. Froom's submissions fail to disclose any grounds upon which the Minister's decision to issue the ATP could be regarded as patently unreasonable.

ABUSE OF PROCESS

[107]Next, Mr. Froom submits that the extradition proceeding is an abuse of process. This argument has two prongs, the first of which relates to delay. The contention is that it is clearly an abuse of process for the United States authorities to wait nearly 3[frac12] years from the date of the grand jury indictment on March 20, 1998 (all the while knowing Mr. Froom's whereabouts) to make a request for extradition. The second prong is that the delay is aggravated by a conscious and tactical decision to use the deportation proceedings in order to circumvent extradition.

[108]Mr. Froom maintains that the deportation effort was a de facto attempt at extradition and that this matter, being the second attempt by the Minister, is an abuse of process. It is said that the Government of Canada is acting as agent for the Americans such that any decisions undertaken by the Americans that equate to abuse of process can "vitiate this entire proceeding". It is the "decision of the Americans, perhaps on the advice of the Canadian immigration authorities, that led to the determination to go with the immigration proceedings". Relying on section 4 of the Act, he argues that the discharge of a person does not preclude further proceedings based on the same conduct unless the judge is of the opinion that the further proceedings would be an abuse of process.

[109]Mr. Froom points to various pieces of "evidence" in support of his argument. He refers in his affidavit to comments allegedly made by the immigration case presenting officer to his former immigration lawyer; to facsimile cover pages (two) between United States authorities, Canadian immigration and Toronto police; to a one-page selected excerpt from a "transcript" of United States proceedings regarding his wife and five pages selected from the "transcript" of his immigration hearing before the Adjudicator; to a memo from a United States postal inspector dated March 9, 1998 directed to Canadian authorities and containing Mr. Froom's address, and to the comments contained in two pieces of redacted correspondence (emanating from two United States attorneys and directed to two judges of United States courts) regarding civil proceedings relating to Mr. Froom in the United States. Because he was not cross-examined on his affidavit and because there is no affidavit from the respondent, Mr. Froom submits that this evidence stands uncontradicted and must be accepted.

[110]It is contended that this "evidence" establishes that the United States authorities were aware of his presence in Canada in March 1998, and did nothing with respect to extradition until April 2001. There is no dispute that the United States authorities provided information to Canadian immigration authorities.

Analysis

[111]Mr. Froom's submission is somewhat unusual in that, generally, disguised extradition may be found to exist where extradition proceedings have failed and deportation is then used as a backup because there is insufficient evidence to support extradition. I have concluded that, for various reasons, this argument cannot succeed.

[112]I begin by noting that the allegation that the immigration proceeding constitutes a disguised extradition and an abuse of process was fully argued before Mr. Justice Kelen during Mr. Froom's application for judicial review of the Adjudicator's conditional deportation order. Mr. Froom's application was dismissed on October 2, 2003: Froom v. Canada (Minister of Citizenship and Immigration), 2003 FC 1127; [2003] F.C.J. No. 1443 (T.D.) (QL) (Froom No. 3). My colleague deals extensively with the "disguised extradition" submissions and concludes that "the applicant has not discharged the heavy onus upon him of showing that the Canadian authorities have pursued deportation for illegitimate purposes". The reasons of Mr. Justice Kelen postdate the hearing of this matter and the respondent in that application is not the respondent in the matter before me. On that basis, the doctrine of issue estoppel does not apply. However, I find my colleague's reasoning and analysis persuasive.

[113]It is important to again review what is at issue here. Mr. Froom seeks judicial review of the Minister's decision to issue the ATP. I have determined that, to succeed, he must meet the threshold articulated earlier in these reasons in relation to a ground that does not fall within the jurisdiction of the extradition judge or the Minister.

[114]At first blush, it appears that the allegation of abuse of process encompasses an allegation that the Minister acted in bad faith or for an improper motive. To support such an allegation the applicant must lead evidence that the Minister was not acting in pursuit of legitimate objectives. The authorities that discuss improper motive or bad faith regarding constitutional challenges and the exercise of prosecutorial discretion, in the context of extradition, require that there be an "air of reality" to the allegation. In my view, that test is appropriate here. There must be an "air of reality" to Mr. Froom's allegation.

[115]The Minister of Justice received an extradition request on June 29, 2001, with respect to the third superseding indictment dated March 29, 2000, in relation to Mr. Froom. Mr. Froom characterizes this matter as a second extradition proceeding (the first being the immigration deportation proceedings). He does not suggest that the Minister of Justice had any involvement in or knowledge of the immigration proceedings. Rather, he states in his affidavit at paragraph 61:

I believe that the Minister of Justice must have been aware of the Immigration Act proceeding commenced by the Minister of Citizenship and Immigration since knowledge of one Minister is knowledge of the other and since members of the Metro Toronto Police Fugitive Squad arrested me in the Immigration Act matter in 1998 and arrested me again in 2001 under the Extradition Act.

Neither argument nor authority is advanced in support of this statement.

[116]Mr. Froom does not suggest that any of the "evidence" attached to his affidavit, and upon which he relies, was before the Minister when the ATP issued. Rather, in relation to it, he states at paragraph 77 of his affidavit:

The Minister should have recognized this and taken this into consideration before issuing the Authority to Proceed in my case.

Neither argument nor authority is advanced in support of this statement. In passing, I mention that the mere fact that "evidence" stands uncontradicted does not render it admissible. Documents, or excerpts from them, are to be introduced in accordance with the relevant evidentiary rules and procedures. Affidavits are to be confined to facts within the personal knowledge of the deponent.

[117]There is no evidence before me indicating improper conduct, arbitrary motive or bad faith on the part of the Minister. The evidence, such as it is, does not bear on those issues relevant to the Minister's decision to issue the ATP. In fact, there is no evidence that the Minister of Justice was not acting in utmost good faith in determining that the ATP would issue. Thus, the applicant's ground does not meet the threshold for judicial review. That, however, is not the only reason why this ground cannot succeed.

[118]There is ample authority to support the proposition that submissions alleging delay and abuse of process should be made to the Minister (if a committal order is made) prior to surrender (subsection 43(1)). The timeliness and manner of prosecuting the extradition proceeding is a factor that the Minister may consider when determining whether a surrender order is unconstitutional or otherwise oppressive or unjust: United States of America v. Bonamie (2001), 293 A.R. 201 (C.A.); Reumayr, supra; United States of America v. Earles (2003), 176 B.C.A.C. 231 (C.A.).

[119]Improper motives or bad faith on the part of the Canadian authorities in seeking to have an individual extradited would be a ground for review of the decision to surrender: United States of America v. Gillingham (2000), 193 D.L.R. (4th) 133 (B.C.C.A.).

[120]Paragraph 44(1)(a) of the Act provides that the Minister "shall" refuse to make a surrender order if the Minister is satisfied that the surrender "would be unjust or oppressive having regard to all the relevant circumstances". Given the mandatory nature of the provision, the Minister must consider all relevant circumstances, singly and in combination, to determine whether surrender would be unjust or oppressive. The individual is entitled to reasons responsive to the factors relevant to his situation: United States of America v. Johnson (2002), 62 O.R. (3d) 327 (C.A.).

[121]Where the allegation of abuse of process raises issues that could be said to go to the fairness of the extradition hearing itself, the extradition judge has jurisdiction to deal with it either on the basis of section 7 of the Charter or on the basis of the court's inherent power to control its own process: United States of America v. Cobb, [2001] 1 S.C.R. 587; Sagarra, supra; Reumayr, supra.

[122]It is evident that, generally, allegations of delay and abuse of process are to be made to the Minister pursuant to subsection 44(1) of the Act. Where an allegation of abuse of process goes to the fairness of the hearing itself, the extradition judge has jurisdiction to deal with it. The Minister's order regarding surrender may be judicially reviewed by the provincial appellate court and the extradition judge's committal order may be appealed to the provincial appellate court. Thus, this ground falls squarely within the jurisdiction assigned to either the Minister or the extradition judge. It falls within the caveat discussed in paragraph 60 and elsewhere in these reasons.

[123]There are two matters raised in argument that require comment. Mr. Froom's reference to section 4 of the Act is consistent with my reasoning in that the "judge" referred to in section 4 is defined in section 2 as "a judge of the court" and "court" means, "in Ontario, the Ontario Court (General Division)". The other matter relates to Mr. Froom's allegation that because Canada acts as agent, decisions by the Americans that equate to abuse of process can "vitiate this entire proceeding". No basis is advanced with respect to that observation and I can only assume that it is a misguided interpretation of Madam Justice Arbour's comments in Shulman, supra, when referring to the requesting state being represented by the Attorney General. Madam Justice Arbour noted that, pursuant to governmental agreements and arrangements, Canadian government officials acted as counsel and agent for a party litigant (the requesting state). The statement is not, in my view, to be taken for anything other than what it states. It was the requesting state that the Supreme Court found fault with in Shulman, not the Canadian authorities. Moreover, Mr. Froom has not yet reached the stage of an extradition hearing. At this point, the Minister has merely issued the ATP authorizing the Attorney General to proceed to a hearing.

[124]This ground does not meet the threshold for judicial review of a decision to issue an ATP. It also raises arguments that fall squarely within the jurisdiction of either the extradition judge or the Minister. Finally, had I determined that judicial review was available, Mr. Froom's arguments would not persuade me that the Minister's decision to issue the ATP was patently unreasonable.

DELEGATION

[125]Before examining this ground of review, I wish to comment on an issue that arose as a result of a remark I made during the hearing. In the course of reviewing various documents contained in the records, the respondent's counsel referred to a particular document that delegated certain powers under the Act (including the power to issue an ATP) to specified persons within the department of justice. The document specifies, among other things, that the senior counsel for the IAG who signed the ATP in this matter is authorized to issue an ATP. The delegation document is signed by the Deputy Minister of Justice and is dated. Although there is a space provided for the insertion of the specific day of the month, the space is blank and the document is dated June --, 1999. When counsel referred to this document, I queried whether the specific date appeared on the original. Counsel responded that it did not.

[126]Not surprisingly, Mr. Froom seized this opportunity to attack the document. He took the position that, since I had raised the issue, it could not be ignored. Mr. Froom's submission is that one cannot say "sometime in June 1999" the authority was delegated. The date is a matter of substance and its absence renders the document a nullity. The respondent takes the position that the document is not the source of the Minister's power to delegate and it is therefore superfluous. It is nothing other than an inter-office memorandum and the only thing that is unclear is on which day in June of 1999 it was signed.

[127]Because the issue was not referred to in the memorandum of argument of either party and because it was my intervention that precipitated the argument, I requested further submissions from counsel. I received those submissions, and despite the best efforts of counsel, the submissions are not particularly helpful because there does not appear to be any jurisprudence that is directly relevant. The submissions deal with authorities regarding omissions from court judgments, orders and directives, with regulations passed pursuant to statutes and with criminal law matters. Nothing proffered deals with a document of this nature.

[128]While I have no desire to oversimplify the matter, neither do I wish to spend time dwelling on a point that I do not, on the facts of this matter, view as significant to its outcome. Subject to my determination of the issue with respect to the propriety of the Minister's delegation of his authority under section 15 of the Act (authority to issue the ATP), I am of the view that nothing turns on the specific date in June 1999, when the document was signed. The ATP in relation to Mr. Froom issued on July 3, 2001, more than two years later. Thus, the absence of the specific day of execution is not material in this instance. I do not say that it is unnecessary to consider the absence of a date in every case, but further analysis in this regard is better left to a situation where it may be material.

Applicant

[129]Mr. Froom does not suggest that the Minister, in delegating the authority to issue the ATP, acted from an improper motive, in bad faith or that he was motivated by irrelevant considerations. Rather, the suggestion is that the Minister acted arbitrarily and erred in law by wrongfully delegating his authority.

[130]The argument is that there is nothing contained in the Act that authorizes the Minister to delegate his discretionary power to issue an ATP. The question becomes, therefore, whether there is an implied right to delegate. Mr. Froom refers to the following authorities for guidance regarding resolution of this issue: R. v. Harrison, [1977] 1 S.C.R. 238 (Harrison); Ramawad v. Minister of Manpower and Immigration, [1978] 2 S.C.R. 375 (Ramawad); Edgar v. Canada (Attorney General) (1999), 46 O.R. (3d) 294 (C.A.) (Edgar); Attorney General of Quebec v. Carrières Ste-Thérèse Ltée., [1985] 1 S.C.R. 831 (Ste-Thérèse Ltée.).

[131]Mr. Froom argues that it was open to Parliament to provide for delegation in the Act. Since it failed to so provide, in accordance with the noted authorities, regard must be had to the contents of the Act, the nature of the decision and the responsibilities involved. While the discretionary nature of the Minister's authority, in and of itself, does not mean that delegation is not possible, Mr. Froom maintains that we must look further. His contention is that it is the combined effect of this discretionary power and the use of the word "satisfied" that implies that the Minister must exercise the power personally. The fact that the Minister must be satisfied "modifies the permissive word `may'". In short, he urges me to find that the requirement that the Minister must be satisfied, combined with the nature of the decision, dictates that the power cannot be delegated. He submits that under the former Act, this power, now vested in the Minister, was vested in the extradition judge and that this fact militates against delegation.

[132]Mr. Froom contends that I am left with no choice but to exercise my discretion in relation to this ground of review because the extradition judge is without jurisdiction to do so. In this respect, he relies on an endorsement in Federal Republic of Germany v. Schreiber, [2000] O.J. No. 5813 (Sup. Ct.) (QL), where Mr. Justice Watt determined that the extradition judge lacked jurisdiction to inquire into the validity of the ATP [at paragraph 1] "on the ground of impermissible delegation of ministerial authority". Moreover, it is argued that the Minister cannot be expected to review his own decision regarding delegation. The provincial appellate court on judicial review of a surrender order can review only what the Minister considered in relation to the surrender order and that does not include the ATP. Thus, neither the provincial appellate court nor the Supreme Court will, under these circumstances, be in a position to review the ATP.

[133]Last, Mr. Froom submits that despite the enactment of subsection 24(2) [as am. by S.C. 1992, c. 1, s. 89] of the Interpretation Act, R.S.C., 1985, c. I-21, statutes enacted subsequent to the amendment contain delegation provisions. By way of example, he refers to subsection 6(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Thus, this constitutes strong reason to conclude that if Parliament intended the discretionary authority in section 15 of the Act to be delegated, it would have specifically so stated.

Analysis

[134]I begin by saying that, in my view, this ground of review falls within the threshold earlier established in these reasons. If the Minister improperly delegated his authority, it can be said that he acted arbitrarily.

[135]In terms of the caveat, I am mindful of the respondent's position that the extradition judge does have jurisdiction to deal with the issue of "delegation". Specifically, I refer to United Kingdom v. Woolley, supra, where Justice Hoilett of the Ontario Superior Court, at the outset of an extradition hearing, entertained a preliminary jurisdictional argument. The argument, in that matter, was that the ATP was defective in that it had been signed by senior counsel, International Assistance Group, for the Minister of Justice, and ought to have been signed by the Minister. Justice Hoilett heard the arguments and ruled on the issue. As indicated earlier, the Schreiber endorsement holds otherwise. Thus, it appears that whether the extradition judge has jurisdiction to inquire into the validity of the ATP on the basis of impermissible delegation of ministerial authority is an unresolved question. For present purposes, it cannot be said that it is a matter that falls "squarely within the jurisdiction of the extradition judge". Thus, the caveat does not apply.

[136]I confess that, at this point, I am uncertain as to the proper approach to take regarding the question of delegation. Mr. Froom urges me to examine the issue directly and to make a determination. The standard of review, he contends, does not apply in relation to delegation. It is an issue of law--was there proper delegation or not? There is judicial support for that approach. In Ramawad, supra, when it was determined that the authority of the Minister under the Regulations of the Immigration Act could not be exercised by an officer pursuant to an implied delegation of authority from the Minister, the resulting decision was held to be invalid. In Matsqui, supra, Justices La Forest, Major and McLachlin (as she then was) determined that there is no question of standard of review where the issue is one where the decision-maker has no jurisdiction to entertain the question, i.e., where the decision-maker has decided a question beyond its strict jurisdictional limits. In this instance, I would think that if the Minister determined that he could delegate his authority when in fact he could not, he would be acting beyond his jurisdictional limits.

[137]As appealing as the suggested approach may be, if my understanding of Dr. Q v. College of Physicians and Surgeons of British Columbia , [2003] 1 S.C.R. 226 (Dr. Q) is correct, in every case, the reviewing judge must begin by determining the applicable standard of review with respect to the impugned decision by applying the pragmatic and functional analysis. "The nominate grounds, language of jurisdiction, and ossified interpretations of statutory formulae, while still useful as familiar landmarks, no longer dictate the journey" [at paragraph 24]. Thus, it appears that the decision with respect to delegation can be determined only after I determine the applicable standard of review and apply that standard to the Minister's decision.

[138]In this respect, it does not necessarily follow that the standard of patent unreasonableness applies. The Minister's expertise regarding extradition matters and specifically the issuance of the ATP arises from expertise in political matters, international relations and the ramifications of the law of extradition. That is not so with respect to a decision to delegate. While the overall objective of the Act remains as stated earlier in my analysis regarding the standard of review, this specific decision is one where the Minister enjoys no particular expertise. The Court is equally, if not better, placed to determine the issue of delegation. Similarly, the nature of the problem--whether the discretionary power can be delegated--is a pure question of law. The purpose of the Act, the nature of the decision, and the expertise of the Minister do not entitle him to misinterpret the scope of the jurisdiction. The absence of a privative clause or right of appeal is, as stated earlier, a neutral factor. Balancing these factors, in relation to the decision in issue, I conclude that the applicable standard of review is one of correctness.

[139]The following excerpt from the Supreme Court's decision in Harrison, supra, is instructive on the topic of delegation [at pages 245-246]:

. . . there is implied authority in the Attorney General to delegate the power to instruct, in s. 605(1). I do not think that s. 605(1) requires the Attorney General personally to appeal or personally to instruct counsel to appeal in every case. Although there is a general rule of construction in law that a person endowed with a discretionary power should exercise it personally (delegatus non potest delegare) that rule can be displaced by the language, scope or object of a particular administrative scheme. A power to delegate is often implicit in a scheme empowering a Minister to act. As Professor Willis remarked in "Delegatus Non Potest Delegare" (1943) 21 Can. Bar Rev. 257 at p. 264:

. . . in their application of the maxim delegatus non potest delegare to modern governmental agencies the Courts have in most cases preferred to depart from the literal construction of the words of the statute which would require them to read in the word "personally" and to adopt such a construction as will best accord with the facts of modern government which, being carried on in theory by elected representatives but in practice by civil servants or local government officers, undoubtedly requires them to read in the word "or any person authorized by it".

See also S.A. DeSmith, Judicial Review of Administrative Action, 3d.ed., at p. 271. Thus, where the exercise of a discretionary power is entrusted to a Minister of the Crown it may be presumed that the acts will be performed, not by the Minister in person, but by responsible officials in his department: Carltona, Ltd. v. Commissioners of Works, [1943] 2 All E.R. 560 (C.A.). The tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable to expect them to be performed personally. It is to be supposed that the Minister will select deputies and departmental officials of experience and competence, and that such appointees, for whose conduct the Minister is accountable to the Legislature, will act on behalf of the Minister, within the bounds of their respective grants of authority, in the discharge of ministerial responsibilities. Any other approach would lead to administrative chaos and inefficiency. It is true that in the present case there is no evidence that the Attorney General of British Columbia personally instructed Mr. McDiarmid to act on his behalf in appealing judgments or verdicts of acquittal of trial courts but it is reasonable to assume the "Director, Criminal Law" of the Province would have that authority to instruct.

[140]Similarly, in Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12, the Court commented that the express delegation or devolution of powers to departmental officials found in section 7 (of the Fisheries Act [R.S.C., 1985, c. F-14]) may seem unnecessary today since powers entrusted to a minister of the Crown will generally be performed, not by the Minister, but by responsible officials in his department. The statutory construction that grew up around the Latin maxim delegatus non potest delegare may have operated more strongly in the past when express delegation was generally thought necessary.

[141]Subsection 24(2) of the Interpretation Act provides:

24. . . .

(2) Words directing or empowering a minister of the Crown to do an act or thing, regardless of whether the act or thing is administrative, legislative or judicial, or otherwise applying to that minister as the holder of the office, include

(a) a minister acting for that minister or, if the office is vacant, a minister designated to act in the office by or under the authority of an order in council;

(b) the successors of that minister in the office;

(c) his or their deputy; and

(d) notwithstanding paragraph (c), a person appointed to serve, in the department or ministry of state over which the minister presides, in a capacity appropriate to the doing of the act or thing, or to the words so applying.

[142]The Federal Court of Appeal had occasion to comment on the effect of subsection 24(2) in Canada (Minister of Human Resources Development) v. Wiemer (1998), 228 N.R. 341, a case involving a decision of the Pension Appeals Board that quashed the Minister's decision to allow a demand for a division of a spouse's unadjusted pensionable earnings pursuant to the Canada Pension Plan [R.S.C., 1985, c. C-8]. Mr. Justice Létourneau, for the court, stated as follows [at paragraph 11]:

There is no requirement under the Act that approval of an application for a division of unadjusted pensionable earnings be given by the Minister personally. Under subsection 24(2) of the Interpretation Act, R.S.C. 1985, c. I-21, powers given to a minister to do an act or a thing can be exercised by a person appointed to serve in the department over which the Minister presides in a capacity appropriate to the doing of the act. Indeed, section 24 merely recognizes in legislation an existing practice dictated by the diversity and complexities of modern public administrations. Prior to the enactment of this provision, our Courts had recognized the existence of a principle of implied delegation of ministerial powers in order to ensure a proper and efficient functioning of public administration.

[143]When regard is had to the Act as a whole, it is evident, and indeed mandated by section 7, that the Minister is responsible for its administration. Subsections 40(1) and 71(3) specifically require the Minister to act "personally" in relation to circumstances involving the surrender of an individual. No similar wording is used in relation to section 15.

[144]I stated earlier that the ATP is the foundation block upon which the extradition process stands. That being so, it is important not to overstate its significance. While it is an important document, its consequences for the individual are less significant than the consequences associated with a committal order or a surrender order. The statutory requirements in relation to the ATP are not complicated and it is inaccurate to say that the extradition judge exercised the section 15 functions under the former Act. That is the case only in relation to the delineation of equivalent Canadian offences.

[145]Considering the contents of section 15, the Act as a whole, the jurisprudence, and the provisions of the Interpretation Act, in my view, it is open to the Minister to delegate the discretionary authority provided to him in section 15 of the Act. There is nothing in the Act that indicates a contrary intention. The Edgar, supra, and Ste. Thérèse Ltée, supra, cases do not assist Mr. Froom. In Edgar, the section in question referred to the Minister in his "sole" discretion and in Ste. Thérèse Ltée, the word "himself" was used in conjunction with the word "Minister". Neither of those situations is appreciably different from the use of the word "personally" in subsections 40(1) and 71(3) of the Act. I conclude that the Minister's decision regarding delegation is correct.

[146]I return to where I began regarding this issue. If Mr. Froom's approach to the question of delegation is the correct one (determine the question without reference to the standard of review), for the above stated reasons, the result is the same. Thus, this ground of review fails.

[147]In relation to the relief requested in Mr. Froom's self-prepared amended notice of application, his counsel, at the hearing, requested that the ATP be quashed. Contingent upon success in that respect, counsel asked that I entertain a request to enter a stay of the extradition proceeding. There was neither a request nor a suggestion that I consider any other relief. I have approached the arguments that were presented by counsel (as I indicated at the outset of these reasons). I have treated the requested relief in the same manner.

SUMMARY OF CONCLUSIONS

[148]In summary, my conclusions regarding this application are as follows:

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

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

(c) The applicable standard of review, with respect to a decision of the Minister made pursuant to the Extradition Act, is patent unreasonableness;

(d) The applicant's grounds of review with respect to non-compliance with the Treaty, with respect to the question of whether the authority to proceed is a nullity and with respect to abuse of process, do not meet the threshold set out in (a) and (b) above. Had the threshold been met in relation to these grounds, it has not been demonstrated that the Minister's decision was patently unreasonable;

(e) The ground of review regarding impermissible delegation of ministerial authority meets the above-noted threshold. The standard of review applicable to the Minister's decision in this respect is correctness;

(f) It is permissible for the Minister to delegate the discretionary authority in section 15 of the Extradition Act;

(g) The applicant's ground of review regarding impermissible delegation of ministerial authority fails.

[149]In the result, the application for judicial review is dismissed with costs. An order will so provide.

SCHEDULE "A"    

Extradition Act, S.C. 1999, c. 18

2. The definitions in this section apply in this Act.

"Attorney General" means the Attorney General of Canada.

"court" means

(a) in Ontario, the Ontario Court (General Division);

(b) in Quebec, the Superior Court;

(c) in New Brunswick, Manitoba, Alberta and Saskatchewan, the Court of Queen's Bench;

(d) in Nova Scotia, British Columbia, Yukon and the Northwest Territories, the Supreme Court, and in Nunavut, the Nunavut Court of Justice; and

(e) in Prince Edward Island and Newfoundland, the Trial Division of the Supreme Court.

"court of appeal" means

(a) in the Province of Prince Edward Island, the Appeal Division of the Supreme Court; and

(b) in all other provinces, the Court of Appeal.

"extradition agreement" means an agreement that is in force, to which Canada is a party and that contains a provision respecting the extradition of persons, other than a specific agreement.

"extradition partner" means a State or entity with which Canada is party to an extradition agreement, with which Canada has entered into a specific agreement or whose name appears in the schedule.

. . .

"Minister" means the Minister of Justice.

. . .

3. (1) A person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner for the purpose of prosecuting the person or imposing a sentence on -- or enforcing a sentence imposed on -- the person if

(a) subject to a relevant extradition agreement, the offence in respect of which the extradition is requested is punishable by the extradition partner, by imprisoning or otherwise depriving the person of their liberty for a maximum term of two years or more, or by a more severe punishment; and

(b) the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada,

(i) in the case of a request based on a specific agreement, by imprisonment for a maximum term of five years or more, or by a more severe punishment, and

(ii) in any other case, by imprisonment for a maximum term of two years or more, or by a more severe punishment, subject to a relevant extradition agreement.

(2) For greater certainty, it is not relevant whether the conduct referred to in subsection (1) is named, defined or characterized by the extradition partner in the same way as it is in Canada.

(3) Subject to a relevant extradition agreement, the extradition of a person who has been sentenced to imprisonment or another deprivation of liberty may only be granted if the portion of the term remaining is at least six months long or a more severe punishment remains to be carried out.

. . .

6. Subject to a relevant extradition agreement, extradition may be granted under this Act whether the conduct or conviction in respect of which the extradition is requested occurred before or after this Act or the relevant extradition agreement or specific agreement came into force.

7. The Minister is responsible for the implementation of extradition agreements, the administration of this Act and dealing with requests for extradition made under them.

8. (1) Unless the extradition agreement has been published under subsection (2), an extradition agreement -- or the provisions respecting extradition contained in a multilateral extradition agreement -- must be published in the Canada Gazette no later than 60 days after it comes into force.

(2) An extradition agreement -- or the provisions respecting extradition contained in a multilateral extradition agreement -- may be published in the Canada Treaty Series and, if so published, the publication must be no later than 60 days after it comes into force.

(3) Agreements and provisions published in the Canada Gazette or the Canada Treaty Series are to be judicially noticed.

. . .

11. (1) A request by an extradition partner for the provisional arrest or extradition of a person shall be made to the Minister.

(2) A request by an extradition partner for the provisional arrest of a person may also be made to the Minister through Interpol.

12. The Minister may, after receiving a request by an extradition partner for the provisional arrest of a person, authorize the Attorney General to apply for a provisional arrest warrant, if the Minister is satisfied that

(a) the offence in respect of which the provisional arrest is requested is punishable in accordance with paragraph 3(1)(a); and

(b) the extradition partner will make a request for the extradition of the person.

13. (1) A judge may, on ex parte application of the Attorney General, issue a warrant for the provisional arrest of a person, if satisfied that there are reasonable grounds to believe that

(a) it is necessary in the public interest to arrest the person, including to prevent the person from escaping or committing an offence;

(b) the person is ordinarily resident in Canada, is in Canada or is on the way to Canada; and

(c) a warrant for the person's arrest or an order of a similar nature has been issued or the person has been convicted.

. . .

15. (1) The Minister may, after receiving a request for extradition and being satisfied that the conditions set out in paragraph 3(1)(a) and subsection 3(3) are met in respect of one or more offences mentioned in the request, issue an authority to proceed that authorizes the Attorney General to seek, on behalf of the extradition partner, an order of a court for the committal of the person under section 29.

(2) If requests from two or more extradition partners are received by the Minister for the extradition of a person, the Minister shall determine the order in which the requests will be authorized to proceed.

(3) The authority to proceed must contain

(a) the name or description of the person whose extradition is sought;

(b) the name of the extradition partner; and

(c) the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person or the conduct in respect of which the person was convicted, as long as one of the offences would be punishable in accordance with paragraph 3(1)(b).

(4) A copy of an authority to proceed produced by a means of telecommunication that produces a writing has the same probative force as the original for the purposes of this Part.

. . .

23. (1) The Minister may substitute another authority to proceed at any time before the extradition hearing begins. All documents issued and orders made by the court apply in respect of the new authority to proceed, unless the court, on application of the person or the Attorney General, orders otherwise.

(1.1) Where the Minister substitutes another authority to proceed under subsection (1) and the person applies for another date to be set for the beginning of the extradition hearing in order to give the person an opportunity to examine the new authority, the judge may set another date for the hearing.

(2) The judge may, on application of the Attorney General, amend the authority to proceed after the hearing has begun in accordance with the evidence that is produced during the hearing.

(3) The Minister may at any time withdraw the authority to proceed and, if the Minister does so, the court shall discharge the person and set aside any order made respecting their judicial interim release or detention.

24. (1) The judge shall, on receipt of an authority to proceed from the Attorney General, hold an extradition hearing.

(2) For the purposes of the hearing, the judge has, subject to this Act, the powers of a justice under Part XVIII of the Criminal Code, with any modifications that the circumstances require.

25. For the purposes of the Constitution Act, 1982, a judge has, with respect to the functions that the judge is required to perform in applying this Act, the same competence that that judge possesses by virtue of being a superior court judge.

. . .

29. (1) A judge shall order the committal of the person into custody to await surrender if

(a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner; and

(b) in the case of a person sought for the imposition or enforcement of a sentence, the judge is satisfied that the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed and that the person is the person who was convicted.

(2) The order of committal must contain

(a) the name of the person;

(b) the offence set out in the authority to proceed for which the committal is ordered;

(c) the place at which the person is to be held in custody; and

(d) the name of the extradition partner.

(3) A judge shall order the person discharged if the judge does not order their committal under subsection (1).

(4) The date of the authority to proceed is the relevant date for the purposes of subsection (1).

(5) Subject to a relevant extradition agreement, if a person has been tried and convicted without the person being present, the judge shall apply paragraph (1)(a).

. . .

31. For the purposes of sections 32 to 38, "document" means data recorded in any form, and includes photographs and copies of documents.

32. (1) Subject to subsection (2), evidence that would otherwise be admissible under Canadian law shall be admitted as evidence at an extradition hearing. The following shall also be admitted as evidence, even if it would not otherwise be admissible under Canadian law:

(a) the contents of the documents contained in the record of the case certified under subsection 33(3);

(b) the contents of the documents that are submitted in conformity with the terms of an extradition agreement; and

(c) evidence adduced by the person sought for extradition that is relevant to the tests set out in subsection 29(1) if the judge considers it reliable.

(2) Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.

33. (1) The record of the case must include

(a) in the case of a person sought for the purpose of prosecution, a document summarizing the evidence available to the extradition partner for use in the prosecution; and

(b) in the case of a person sought for the imposition or enforcement of a sentence,

(i) a copy of the document that records the conviction of the person, and

(ii) a document describing the conduct for which the person was convicted.

(2) A record of the case may include other relevant documents, including documents respecting the identification of the person sought for extradition.

(3) A record of the case may not be admitted unless

(a) in the case of a person sought for the purpose of prosecution, a judicial or prosecuting authority of the extradition partner certifies that the evidence summarized or contained in the record of the case is available for trial and

(i) is sufficient under the law of the extradition partner to justify prosecution, or

(ii) was gathered according to the law of the extradition partner; or

(b) in the case of a person sought for the imposition or enforcement of a sentence, a judicial, prosecuting or correctional authority of the extradition partner certifies that the documents in the record of the case are accurate.

(4) No authentication of documents is required unless a relevant extradition agreement provides otherwise.

(5) For the purposes of this section, a record of the case includes any supplement added to it.

34. A document is admissible whether or not it is solemnly affirmed or under oath.

35. A document purporting to have been signed by a judicial, prosecuting or correctional authority, or a public officer, of the extradition partner shall be admitted without proof of the signature or official character of the person appearing to have signed it.

36. A translation of a document into one of Canada's official languages shall be admitted without any further formality.

37. The following are evidence that the person before the court is the person referred to in the order of arrest, the document that records the conviction or any other document that is presented to support the request:

(a) the fact that the name of the person before the court is similar to the name that is in the documents submitted by the extradition partner; and

(b) the fact that the physical characteristics of the person before the court are similar to those evidenced in a photograph, fingerprint or other description of the person.

38. (1) A judge who issues an order of committal of a person to await surrender shall transmit to the Minister the following documents:

(a) a copy of the order;

(b) a copy of the evidence adduced at the hearing that has not already been transmitted to the Minister; and

(c) any report that the judge thinks fit.

(2) When the judge orders the committal of a person, the judge shall inform the person that they will not be surrendered until after the expiry of 30 days and that the person has a right to appeal the order and to apply for judicial interim release.

. . .

40. (1) The Minister may, within a period of 90 days after the date of a person's committal to await surrender, personally order that the person be surrendered to the extradition partner.

(2) Before making an order under subsection (1) with respect to a person who has made a claim for refugee protection under the Immigration and Refugee Protection Act, the Minister shall consult with the minister responsible for that Act.

(3) The Minister may seek any assurances that the Minister considers appropriate from the extradition partner, or may subject the surrender to any conditions that the Minister considers appropriate, including a condition that the person not be prosecuted, nor that a sentence be imposed on or enforced against the person, in respect of any offence or conduct other than that referred to in the order of surrender.

(4) If the Minister subjects surrender of a person to assurances or conditions, the order of surrender shall not be executed until the Minister is satisfied that the assurances are given or the conditions agreed to by the extradition partner.

(5) If the person has made submissions to the Minister under section 43 and the Minister is of the opinion that further time is needed to act on those submissions, the Minister may extend the period referred to in subsection (1) as follows:

(a) if the person is the subject of a request for surrender by the International Criminal Court, and an issue has been raised as to the admissibility of the case or the jurisdiction of that Court, for a period ending not more than 45 days after the Court's ruling on the issue; or

(b) in any other case, for one additional period that does not exceed 60 days.

(6) If an appeal has been filed under section 50 and the Minister has extended the period referred to in subsection (1), the Minister shall file with the court of appeal a notice of extension of time before the expiry of that period.

41. (1) The Minister may postpone the making of the order of surrender if

(a) an appeal has been filed under section 50;

(b) the Minister files a notice of postponement with the court of appeal before the expiry of the period referred to in subsection 40(1); and

(c) the order is made not later than 45 days after the date of the decision of the court of appeal.

(2) When the Minister has filed a notice of postponement with the court of appeal under paragraph (1)(b), that court may not defer the hearing of the appeal under subsection 51(2).

42. The Minister may amend a surrender order at any time before its execution.

43. (1) The person may, at any time before the expiry of 30 days after the date of the committal, make submissions to the Minister in respect of any ground that would be relevant to the Minister in making a decision in respect of the surrender of the person.

(2) The Minister may accept submissions even after the expiry of those 30 days in circumstances that the Minister considers appropriate.

44. (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that

(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.

(2) The Minister may refuse to make a surrender order if the Minister is satisfied that the conduct in respect of which the request for extradition is made is punishable by death under the laws that apply to the extradition partner.

45. (1) The reasons for the refusal of surrender contained in a relevant extradition agreement, other than a multilateral extradition agreement, or the absence of reasons for refusal in such an agreement, prevail over sections 46 and 47.

(2) The reasons for the refusal of surrender contained in a relevant multilateral extradition agreement prevail over sections 46 and 47 only to the extent of any inconsistency between either of those sections and those provisions.

46. (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that

(a) the prosecution of a person is barred by prescription or limitation under the law that applies to the extradition partner;

(b) the conduct in respect of which extradition is sought is a military offence that is not also an offence under criminal law; or

(c) the conduct in respect of which extradition is sought is a political offence or an offence of a political character.

(2) For the purpose of subparagraph (1)(c), conduct that constitutes an offence mentioned in a multilateral extradition agreement for which Canada, as a party, is obliged to extradite the person or submit the matter to its appropriate authority for prosecution does not constitute a political offence or an offence of a political character. The following conduct also does not constitute a political offence or an offence of a political character:

(a) murder or manslaughter;

(b) inflicting serious bodily harm;    

(c) sexual assault;

(d) kidnapping, abduction, hostage-taking or extortion;

(e) using explosives, incendiaries, devices or substances in circumstances in which human life is likely to be endangered or serious bodily harm or substantial property damage is likely to be caused; and

(f) an attempt or conspiracy to engage in, counselling, aiding or abetting another person to engage in, or being an accessory after the fact in relation to, the conduct referred to in any of paragraphs (a) to (e).

47. The Minister may refuse to make a surrender order if the Minister is satisfied that

(a) the person would be entitled, if that person were tried in Canada, to be discharged under the laws of Canada because of a previous acquittal or conviction;

(b) the person was convicted in their absence and could not, on surrender, have the case reviewed;

(c) the person was less than eighteen years old at the time of the offence and the law that applies to them in the territory over which the extradition partner has jurisdiction is not consistent with the fundamental principles governing the Youth Criminal Justice Act;

(d) the conduct in respect of which the request for extradition is made is the subject of criminal proceedings in Canada against the person; or

(e) none of the conduct on which the extradition partner bases its request occurred in the territory over which the extradition partner has jurisdiction.

47.1 The grounds for refusal set out in sections 44, 46 and 47 do not apply in the case of a person who is the subject of a request for surrender by the International Criminal Court.

48. (1) If the Minister decides not to make a surrender order, the Minister shall order the discharge of the person.

(2) When the Minister orders the discharge of a person and the person has made a claim for refugee protection under the Immigration and Refugee Protection Act, the Minister shall send copies of all relevant documents to the minister responsible for that Act.

49. A person may appeal against an order of committal -- or the Attorney General, on behalf of the extradition partner, may appeal the discharge of the person or a stay of proceedings -- to the court of appeal of the province in which the order of committal, the order discharging the person or the order staying the proceedings was made,

(a) on a ground of appeal that involves a question of law alone;

(b) on a ground of appeal that involves a question of fact or a question of mixed law and fact, with leave of the court of appeal or a judge of the court of appeal; or

(c) on a ground of appeal not set out in paragraph (a) or (b) that appears to the court of appeal to be a sufficient ground of appeal, with leave of the court of appeal.

. . .

51. (1) An appeal under this Act shall be scheduled for hearing by the court of appeal at an early date whether that date is in or out of the prescribed sessions of that court.

(2) The hearing of an appeal against an order of committal may be deferred by the court of appeal until the Minister makes a decision in respect of the surrender of the person under section 40.

. . .

53. On the hearing of an appeal against an order of committal of a person, the court of appeal may

(a) allow the appeal, in respect of any offence in respect of which the person has been committed, if it is of the opinion

(i) that the order of committal should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) that the order of committal should be set aside on the ground of a wrong decision on a question of law, or

(iii) that, on any ground, there was a miscarriage of justice; or

(b) dismiss the appeal

(i) if it does not allow the appeal on any ground referred to in paragraph (a), or

(ii) even though the court of appeal is of the opinion that on the ground referred to in subparagraph (a)(ii) the appeal may be decided in favour of the appellant, if it is of the opinion that no substantial wrong or miscarriage of justice has occurred and the order of committal should be upheld.

54. If the court of appeal allows an appeal under paragraph 53(a), it shall

(a) set aside the order of committal and

(i) discharge the person, or

(ii) order a new extradition hearing; or

(b) amend the order of committal to exclude an offence in respect of which the court is of the opinion that the person has not been properly committed on a ground referred to in subparagraph 53(a)(i), (ii) or (iii).

55. (1) On the hearing of an appeal against the discharge of a person or against a stay of proceedings, the court of appeal may

(a) allow the appeal and set aside the order of discharge or stay, if it is of the opinion

(i) that the order of discharge should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) that the order of discharge or the stay of proceedings should be set aside on the ground of a wrong decision on a question of law, or

(iii) that, on any ground, there was a miscarriage of justice; or

(b) dismiss the appeal.

(2) The court of appeal may, if it sets aside a stay of proceedings, order a new extradition hearing. The court of appeal may, if it sets aside an order of discharge, order a new extradition hearing or order the committal of the person.

56. (1) The Supreme Court may defer, until the Minister makes a decision with respect to the surrender of the person under section 40, the hearing of an application for leave to appeal, or the hearing of an appeal, from a decision of the court of appeal on an appeal taken under section 49, or on any other appeal in respect of a matter arising under this Act.

(2) The Supreme Court may also, if an application for judicial review is made under section 57 or otherwise, defer the hearing until the court of appeal makes its determination on the application.

57. (1) Despite the Federal Court Act, the court of appeal of the province in which the committal of the person was ordered has exclusive original jurisdiction to hear and determine applications for judicial review under this Act, made in respect of the decision of the Minister under section 40.

(2) An application for judicial review may be made by the person.

(3) An application for judicial review shall be made, in accordance with the rules of court of the court of appeal, within 30 days after the time the decision referred to in subsection (1) was first communicated by the Minister to the person, or within any further time that the court of appeal, either before or after the expiry of those 30 days, may fix or allow.

(4) Section 679 of the Criminal Code applies, with any modifications that the circumstances require, to an application for judicial review.

(5) An application for judicial review shall be scheduled for hearing by the court of appeal at an early date whether that date is in or out of the prescribed sessions of that court.

(6) On an application for judicial review, the court of appeal may

(a) order the Minister to do any act or thing that the Minister has unlawfully failed or refused to do or has unreasonably delayed in doing; or

(b) declare invalid or unlawful, quash, set aside, set aside and refer back for determination in accordance with any directions that it considers appropriate, prohibit or restrain the decision of the Minister referred to in subsection (1).

(7) The court of appeal may grant relief under this section on any of the grounds on which the Trial Division of the Federal Court of Canada may grant relief under subsection 18.1(4) of the Federal Court Act.

(8) If the sole ground for relief established in an application for judicial review is a defect in form or a technical irregularity, the court of appeal may

(a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; or

(b) in the case of a defect in form or a technical irregularity in the decision, make an order validating the order, to have effect from the time and on the terms that it considers appropriate.

(9) If an appeal under section 49 or any other appeal in respect of a matter arising under this Act is pending, the court of appeal may join the hearing of that appeal with the hearing of an application for judicial review.

SCHEDULE "B"

Treaty on Extradition between the Government of Canada and the Government of the United States of America

Article 2

(1) Extradition shall be granted for conduct which constitutes an offense punishable by the laws of both Contracting Parties by imprisonment or other form of detention for a term exceeding one year or any greater punishment.

(2) An offense is extraditable notwithstanding

(i) that conduct such as interstate transportation or use of the mails or of other facilities affecting interstate or foreign commerce, required for the purpose of establishing jurisdiction, forms part of the offense in the United States, or

(ii) that it relates to taxation or revenue or is one of the purely fiscal character.

. . .

Article 4

(1) Extradition shall not be granted in any of the following circumstances:

(i) When the person whose surrender is sought is being proceeded against, or has been tried and discharged or punished in the territory of the requested State for the offense for which his extradition is requested.

(ii) When the prosecution for the offense has become barred by lapse of time according to the laws of the requesting State.

(iii) When the offense in respect of which extradition is requested is of a political character, or the person whose extradition is requested proves that the extradition request has been made for the purpose of trying or punishing him for an offense of the above-mentioned character. If any question arises as to whether a case comes within the provisions of this subparagraph, the authorities of the Government on which the requisition is made shall decide.

. . .

Article 8

The determination that extradition should or should not be granted shall be made in accordance with the law of the requested State and the person whose extradition is sought shall have the right to use all remedies and recourses provided by such law.

    Article 9

(1) The request for extradition shall be made through the diplomatic channel

.(2) The request shall be accompanied by a description of the person sought, a statement of the facts of the case, the text of the laws of the requesting State describing the offense and prescribing the punishment for the offense, and a statement of the law relating to the limitation of the legal proceedings.

(3) When the request relates to a person who has not yet been convicted, it must also be accompanied by a warrant of arrest issued by a judge or other judicial officer of the requesting State and by such evidence as, according to the laws of the requested State, would justify his arrest and committal for trial if the offense had been committed there, including evidence proving the person requested is the person to whom the warrant of arrest refers.

(4) When the request relates to a person already convicted, it must be accompanied by the judgment of conviction and sentence passed against him in the territory of the requesting State, by a statement showing how much of the sentence has not been served, and by evidence proving that the person requested is the person to whom the sentence refers.

. . .

Article 10

(1) Extradition shall be granted only if the evidence be found sufficient, according to the laws of the place where the person sought shall be found, either to justify his committal for trial if the offense of which he is accused had been committed in its territory or to prove that he is the identical person convicted by the courts of the requesting State.

(2) The documentary evidence in support of a request for extradition or copies of these documents shall be admitted in evidence in the examination of the request for extradition when, in the case of a request emanating from Canada, they are authenticated by an officer of the Department of Justice of Canada and are certified by the principal diplomatic or consular officer of the United States in Canada, or when, in the case of a request emanating from the United States, they are authenticated by an officer of the Department of State of the United States and are certified by the principal diplomatic or consular officer of Canada in the United States.

Article 11

(1) In case of urgency a Contracting Party may apply for the provisional arrest of the person sought pending the presentation of the request for extradition through the diplomatic channel. Such application shall contain a description of the person sought, an indication of intention to request the extradition of the person sought and a statement of the existence of a warrant of arrest or a judgment of conviction against that person, and such further information, if any, as would be necessary to justify the issue of a warrant of arrest had the offense been committed, or the person sought been convicted, in the territory of the requested State.

(2) On receipt of such an application the requested State shall take the necessary steps to secure the arrest of the person claimed.

(3) A person arrested shall be set at liberty upon the expiration of sixty days from the date of arrest pursuant to such application if a request for extradition and the documents specified in Article 9 have not been received. This stipulation shall not prevent the institution of proceedings with a view to extraditing the person sought if the request and documents are subsequently received.

Article 12

(1) A person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting State for an offense other than that for which extradition has been granted nor be extradited by that State to a third State unless:

(i) He has left the territory of the requesting State after his extradition and has voluntarily return to it;

(ii) He has not left the territory of the requesting State within thirty days after being free to do so; or

(iii) The requested State has consented to his detention, trial, punishment for an offense other than that for which extradition was granted or to his extradition to a third State, provided such other offense is covered by Article 2.

(2) The foregoing shall not apply to offenses committed after the extradition.