T-2024-01
2002 FCT 1278
Arthur Froom (Applicant)
v.
The Minister of Justice (Respondent)
Indexed as: Froom v. Canada (Minister of Justice) (T.D.)
Trial Division, Gibson J.--Toronto, November 27; Ottawa, December 9, 2002.
Extradition -- Justice Minister issuing authority to proceed under Extradition Act, s. 15 -- Judicial review application struck by prothonotary on basis of Parliamentary intent extradition matter for provincial superior courts -- Extradition from Canada four-part process: (1) partner state submits requests; (2) Minister authorizes Attorney General to seek committal order in provincial superior Court if satisfied conditions specified in Act met; (3) extradition hearing resulting in committal order pending surrender under Act, s. 29; (4) under Act, s. 40, Minister may order surrender to requesting state -- Under Extradition Act, s. 57(1), F.C. jurisdiction ousted as to s. 40 decision but no reference to s. 15(1) (authority to proceed) -- Appeal allowed -- Prothonotary not given power by Federal Court Rules, 1998 to deal with motion relating to liberty of person -- Questionable whether prothonotary had jurisdiction herein -- Impugned decision involved question vital to final issue of case -- Appeal court to exercise discretion de novo -- Question: was motion so clearly improper as to be bereft of any possibility of success -- When, in 1990, Parliament amended Federal Court Act to give it power to review royal prerogative decisions, revealed intention little outside scope of judicial review -- Extradition hearing judges have taken position lacking power to question authority to proceed -- Argument Court should decline jurisdiction it may have as incompatible with statutory scheme, better considered at judicial review.
Federal Court Jurisdiction -- Trial Division -- Appeal from order of prothonotary striking judicial review application regarding authority to proceed issued by Justice Minister under Extradition Act -- Prothonotary ruling Parliament's intention extradition within jurisdiction of provincial superior courts -- Extradition Act, s. 57(1) ousting F.C. jurisdiction regarding Ministerial decisions under s. 40 (surrender to requesting authority) but not as to authority to proceed -- Under Federal Court Rules, 1998 prothonotary lacking power to deal with motion regarding personal liberty -- Applicant herein had been arrested, released on recognizance -- Doubtful prothonotary had jurisdiction -- As question vital to final issue of case, F.C.T.D. on appeal to exercise discretion de novo -- Minister's argument Parliament's intention extradition matters dealt with by provincial superior courts based on distinguishable case -- When, in 1990, Parliament gave F.C. judicial review power over royal prerogative decisions, indicated very little to be excluded from judicial review -- Suggestion Court decline jurisdiction as incompatible with statutory scheme better considered at hearing of judicial review application.
This was an appeal by motion from an order of a Prothonotary striking an application for judicial review of a decision of the Minister of Justice, being an authority to proceed under Extradition Act, section 15. Under the authority issued by the Minister, applicant was arrested, following an ex parte application to the Ontario Superior Court of Justice, but later released on a recognizance requiring a cash deposit and a surety. Thus, he was, for a time, deprived of his liberty and his present liberty is conditional in nature. The Prothonotary's brief reasons for decision were that Parliament's intention was that extradition proceedings be dealt with by the provincial superior courts expeditiously so t hat Canada could promptly meet its international obligations.
The process for extradition from Canada is composed of four distinct phases. (1) An extradition partner state submits to the Minister an extradition request. (2) The Minister considers the request to determine whether or not the conditions specified in the Extradition Act have been met. If they have, the Justice Minister authorizes the Attorney General to proceed before a Superior Court of Justice for an order for committal. The authority to proceed sets forth the Canadian offences which correspond to the crimes alleged (in the instant case it was fraud, conspiracy to commit that offence as well as conspiracy to launder the proceeds of crime and laundering the proceeds). (3) An extradition hearing before a provincial superior court judge which can result in an order of committal to await surrender under Extradition Act, section 29 and a report to the Minister under section 38. (4) Under Act, section 40, the Minister is authorized to order the surrender to the authority seeking extradition of the person committed to await surrender.
It was important to note that Extradition Act, subsection 57(1) ousts the jurisdiction of the Federal Court to judicially review a Ministerial decision under section 40, giving it to the provincial court of appeal. There is no equivalent ousting in relation to the issuance of an authority to proceed under subsection 15(1).
Four issues had to be dealt with upon this appeal: (1) had the prothonotary jurisdiction to strike the judicial review application; (2) if he had jurisdiction, what is the standard of review; (3) whether this Court has jurisdiction to judicially review an authority to proceed; and (4) if it has jurisdiction, should this Court, on the facts, exercise such jurisdiction?
Held, the appeal by way of motion should be allowed.
(1) Under subsection 50(1) of the Federal Court Rules, 1998 a prothonotary is empowered to deal with any motion under the Rules other than one relating to the liberty of a person. In the instant case, an arrest warrant had been executed and applicant incarcerated. Thus, it could be argued that the motion to strike was in relation to applicant's liberty since he was seeking to strike the authority under which he had been incarcerated and remains conditionally at large. The effect of the prothonotary's decision would be to extinguish applicant's challenge to the authority whereunder his liberty was, and is, put in jeopardy. While it is doubtful that the prothonotary did have jurisdiction herein, this question did not have to be definitively answered i n view of the Court's determination of other issues on this appeal.
(2) It was not disputed that the impugned decision involved a question vital to "the final issue of the case" as defined by Justice MacGuigan in Aqua-Gem Investments Ltd. Accordingly, upon appeal, the Court had to exercise its discretion de novo in deciding whether applicant's notice of motion was "so clearly improper as to be bereft of any possibility of success".
(3) It was urged by counsel for the Minister that Parliament's intention w as that jurisdiction over extradition matters be vested in the provincial superior courts and in support of that proposition reference was made to the Trial Division decision in Garcia v. Canada (Minister of Justice). That decision could, however, be distinguished on its facts and as having concerned the predecessor to the current Extradition Act. As pointed out by Décary J.A., for the Court, in Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services ), when, in 1990, Parliament amended paragraph 18(1)(a) of the Federal Court Act to allow for judicial review of decisions made in the exercise of a royal prerogative, it revealed its intention that henceforth very little would be beyond the scope of judicial review. In Fast v. Canada (Minister of Citizenship and Immigration), a citizenship revocation matter, Lemieux J. was not satisfied that the Minister, in issuing a notice, was not exercising a statutory power contemplated by Federal Court Act, section 2. That Judge found apt the Complexe Cousineau case.
Judges exercising jurisdiction under the Extradition Act have made it clear that they lack authority to judicially review the exercise by the Minister of his power to issue an authority to proceed. Thus, in Federal Republic of Germany v. Schreiber, Justice Watt wrote that the "Minister of Justice is the guardian of Canadian sovereignty interests" and that her decision "albeit of a political nature, may well involve considerations of foreign law that a re beyond the scope of the extradition hearing judge's authority". He specifically indicated in an endorsement in that matter that his jurisdiction did not extend to inquiring into the validity of the authority to proceed.
As noted above, this Court's jur isdiction to review a surrender order has been ousted by subsection 57(1) but, by stark contrast, no mention was made of the decision to issue an authority to proceed. Thus, Parliament chose not to oust the Court's jurisdiction to review such decisions.
(4) The Minister's arguments, that this Court ought not to exercise any jurisdiction it may have in view of the availability of an alternative remedy and as it would be incompatible with the statutory scheme and the expeditious discharge of Canada's interna tional obligations, could be better dealt with at the hearing of the judicial review application than upon a motion to strike.
statutes and regulations judicially
considered
Extradition Act, S.C. 1999, c. 18, ss. 2 "extradition partner", 15, 16(1), 18(1), 29, 38, 40, 42, 43, 44, 45, 46, 47, 48, 49, 57(1).
| Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(1) "federal board, commission or other tribunal" (as am. by S.C. 1990, c. 8, s. 1), 18(1) (as am. idem , s. 4), 18.1 (as enacted idem, s. 5). |
| Federal Court Rules, 1998, SOR/98-106, r. 384. |
cases judicially considered
followed:
Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425; [1993] 1 C.T.C. 186; (1993), 93 DTC 5080; 149 N.R. 273 (C.A.); David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588; (1994), 58 C.P.R. (3d) 209; 176 N.R. 48 (C.A.); Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services), [1995] 2 F.C. 694; (1995), 125 D.L.R. (4th) 559; 184 N.R. 260 (C.A.).
applied:
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.).
distinguished:
Garcia v. Canada (Minister of Justice) (1997), 129 F.T.R. 174 (F.C.T.D.).
considered:
Federal Republic of Germany v. Schreiber, [2000] O.J. No. 2618 (S.C.J.) (QL).
referred to:
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.
APPEAL by way of motion from the order of a prothonotary ([2002] 4 F.C. 345), striking an application for judicial review of an authority to proceed, issued by the Minister of Justice under Extradition Act, section 15. Appeal allowed.
appearances:
Lorne Waldman and David B. Cousins for applicant.
Dale L. Yurka and Sean Grandet for respondent.
solicitors of record:
Jackman, Waldman & Associates, Toronto, and David B. Cousins, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Gibson J.:
INTRODUCTION
[1]These reasons arise out of an appeal by way of motion from an order of Prothonotary Roger Lafrenière, dated April 2, 2002 [[2002] 4 F.C. 345], whereby he struck the applicant's (Mr. Froom's) application for judicial review of a decision of the Minister of Justice (the Minister), entitled "authority to proceed" made under section 15 of the Extradition Act.1 In his application for judicial review, Mr. Froom set out 18 grounds as the basis for the application.
[2]In his appeal by way of motion, Mr. Froom seeks the following reliefs:
1. an order setting aside the order made on April 2, 2002 by Roger Lafrenière, Esq., Prothonotary, wherein he dismissed the applicant's judicial review application issued on November 13, 2001;
2. an order directing that the applicant's application for judicial review otherwise proceed in accordance with the Rules of the Federal Court;
3. an award of the costs of this motion together with an award of costs for the hearing on April 2, 2002 before the said prothonotary; an[d]
4. such further and other order as the Court deems appropriate.
BACKGROUND
[3]The Minister's motion that was before Prothonotary Lafrenière sought, in addition to the relief granted by the learned Prothonotary, judgment dismissing Mr. Froom's judicial review application, and costs. As alternative relief, the Minister sought an order striking out certain paragraphs from Mr. Froom's application for judicial review and Mr. Froom's affidavit in support, as well as leave to file the Minister's affidavit material beyond the time limits set out in the Federal Court Rules, 1998,2 and an order that the application proceed as a specially managed proceeding pursuant to rule 384. With regard to the alternative relief sought, Prothonotary Lafrenière wrote at paragraph 3 of his reasons:
The parties agreed at the hearing of the motion that it would be more efficient to await disposition of the Minister's request to strike out the application before dealing with the alternative relief. Submissions of counsel were therefore confined to the question as to whether the notice of application ought to be struck in its entirety. The balance of the relief requested by the Minister was adjourned pending a determination of this question.
The Minister's request for alternative relief remains outstanding.
[4]By reason of the Minister's authority to proceed, Mr. Froom was arrested on September 11, 2001 following an ex parte application by the Attorney General of Canada before the Superior Court of Justice of Ontario. He was subsequently released on a recognizance requiring a cash deposit of $25,000.00 and a surety for the amount of $20,000. Thus, although Mr. Froom remains at liberty, he was, by reason of the Minister's authority to proceed, for a time deprived of his liberty and the liberty that he now enjoys is conditional.
[5]Prothonotary Lafrenière provided brief but cogent reasons for his decision that is here under appeal. He concluded in the following terms [at paragraphs 28-29]:
Parliament clearly intended that extradition proceedings be dealt with by the provincial superior courts expeditiously in order for Canada to ensure it promptly meets its international obligations. I am satisfied that the extradition procedure contemplated by the Extradition Act is not only an adequate alternative forum to deal with the issues raised by Froom in his notice of application, but the only one available to him.
For the reasons above, I conclude that the application for judicial review could not possibly succeed and must therefore be struck.
THE STATUTORY SCHEME OF THE EXTRADITION ACT
[6]Prothonotary Lafrenière, in his reasons for the decision under appeal, describes the process for extradition of an individual from Canada as having two distinct phases, a judicial phase and a ministerial phase. Before me, counsel were in agreement that there are three phases to the process, all comprised within the two phases that Prothonotary Lafrenière describes. For my own part, I am satisfied that there are four distinct phases to the process of extradition from Canada.
[7]The first phase consists of the submission to the Minister of a request for extradition emanating from an extradition partner,3 that is to say:
2. . . .
. . . 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 [to the Extradition Act].
[8]The second phase consists of an examination by the Minister of the extradition request resulting in satisfaction on his or her part that conditions specified in the Extradition Act are or are not met. On the facts of this matter, the Minister, apparently by her delegate, concluded that the relevant conditions were in fact met. In the authority to proceed document, the Minister provides the authority to proceed, and expresses her satisfaction that the relevant conditions have been met in the following terms:
The Minister of Justice authorizes the Attorney General of Canada to proceed before the Superior Court of Justice [of Ontario] to seek an order for the committal of Arthur Kissel aka Arthur Froom who is being sought for prosecution by the UNITED STATES OF AMERICA. The Canadian offences which corresponds [sic] to the alleged conduct are:
· conspiracy to commit fraud contrary to sections 380(1) and 465(1)(c) of the Criminal Code of Canada;
· fraud contrary to section 380(1) of the Criminal Code of Canada;
· conspiracy to launder the proceeds of crime contrary to sections 462.31 and 465(1)(c) of the Criminal Code of Canada; and
· laundering the proceeds of crime contrary to section 462.31 of the Criminal Code of Canada.4
[9]As earlier noted in these reasons, and pursuant to subsection 16(1) of the Extradition Act, the Attorney General of Canada sought and obtained, a warrant for the arrest of Mr. Froom. The warrant was executed, Mr. Froom was incarcerated and subsequently released on conditions as provided for in subsection 18(1) of the Act.
[10]The third phase of the extradition process is an extradition hearing before a judge of the appropriate provincial superior court, on the facts of this matter, according to the reasons of Prothonorary Lafrenière, the Superior Court of Justice of Ontario. While that process has been instituted against Mr. Froom, perhaps by reason of the proceedings in this Court, it has not been carried through to completion which would be represented by, if Mr. Froom were found to be extraditable, an order of committal to await surrender issued pursuant to section 29 of the Extradition Act. If an order of committal to await surrender were issued against Mr. Froom, the judge making the order would report to the Minister pursuant to section 38 of that Act.
[11]Pursuant to section 49 of the Extradition Act, an appeal lies to the appropriate court of appeal from an order of committal.
[12]The fourth phase follows. Section 40 of the Extradition Act provides authority to the Minister, personally, to order surrender to the authority seeking extradition of a person committed to await surrender. Prior to any such order being made by the Minister, the person who might be the subject of the order is entitled to 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".5
[13]Sections 44 to 46 of the Extradition Act set out circumstances in which the Minister is obliged to refuse to make a surrender order. Section 47 of the Act sets out circumstances where the Minister may refuse to make a surrender order. Section 48 of the Act requires the Minister to order the discharge of the appropriate person where the Minister decides not to make a surrender order in relation to him or her.
[14]Subsection 57(1) of the Extradition Act is particularly pertinent for the purposes of these reasons. That subsection reads as follows:
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.
[15]It is to be noted that subsection 57(1) of the Extradition Act ousts the jurisdiction of this Court to judicially review a decision of the Minister under section 40 of the Act and vests that jurisdiction in the court of appeal of the appropriate province. No equivalent ousting of the jurisdiction of this Court, if there be such jurisdiction, is reflected in the Act in relation to a decision by the Minister to issue an authority to proceed under subsection 15(1) of the Act. A defect or defects in the authority-to-proceed process is not among the circumstances set out in sections 42 to 47 of the Act under which the Minister is obliged to, or has a discretion to, refuse to make a surrender order.
THE ISSUES
[16]Four issues were identified on this appeal by way of motion. They are the following:
(1) the jurisdiction of a prothonotary to strike Mr. Froom's application for judicial review;
(2) if Prothonotary Lafrenière had jurisdiction to strike, the standard of review on this appeal;
(3) the jurisdiction of this Court to judicially review an authority to proceed issued under the Extradition Act; and
(4) if this Court has the jurisdiction to judicially review an authority to proceed, whether this Court should exercise that jurisdiction on the facts of this matter.
ANALYSIS
(1) The jurisdiction of a prothonotary to strike an authority to proceed
[17]The jurisdiction of a prothonotary to hear and dispose of motions under the Federal Court Rules, 19986 derives from subsection 50(1). The relevant portions of that rule for the purpose of this matter read as follows:
50. (1) A prothonotary may hear, and make any necessary orders relating to, any motion under these Rules other than a motion
. . .
(f) relating to the liberty of a person;
[18]As earlier indicated in these reasons, by virtue of the authority to proceed issued against him by the Minister, the Attorney General of Canada applied to the appropriate court and obtained an arrest warrant in respect of Mr. Froom, that arrest warrant was executed, Mr. Froom was incarcerated and later released on conditions. Thus, arguably at least, the motion to strike that was here before Prothonotary Lafrenière could be said to relate to the liberty of Mr. Froom or to be "une requête concernant la mise en liberté ou l'incarcération [of Mr. Froom]". By his application for judicial review, Mr. Froom seeks to strike the authority under which he was incarcerated and under which he now remains conditionally at large. The impact of the motion to strike, if successful, and it was successful before Prothonotary Lafrenière, would be to extinguish Mr. Froom's challenge to the authority under which his liberty was, and continues to be, in jeopardy.
[19]Counsel for the Minister urged before me that the relationship between the motion to strike and Mr. Froom's liberty interest is simply too remote to oust the jurisdiction of a prothonotary by virtue of paragraph 50(1)(f) in either its English or French version.
[20]Unfortunately, this issue was apparently not raised before Prothonotary Lafrenière and therefore was not addressed by him in reaching the decision that is here under appeal. For that reason, and in light of my conclusions to follow, I will not address this issue further and will not attempt to decide it definitively, notwithstanding that I have grave doubt that the Prothonotary had jurisdiction to deal with the motion to strike that was before him.
(2) Standard of review
[21]In Canada v. Aqua-Gem Investments Ltd.,7 Justice MacGuigan wrote at pages 462-463:
I also agree with the Chief Justice [who dissented in part] in part as to the standard of review to be applied by a motions judge to a discretionary decision of a prothonotary. Following in particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 . . ., and Lacourcière J.A. in Stoicevski v. Casement (1983), 43 O.R. (2d) 436 . . ., discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or
(b) they raise questions vital to the final issue of the case.
Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo. [Citations omitted; emphasis added.]
In a footnote, Justice MacGuigan added the following commentary with regard to the concept "the final issue of the case". The note reads in part as follows:
It should be noted that Lord Wright's phrase "the final issue of the case" is quite different from "the final issue in the case." Lord Wright means "vital to the result of the case" rather than "vital to the ultimate issue on the merits of the case." [Emphasis in the original.]
It was not in dispute before me that the decision of Prothonotary Lafrenière here under appeal raises a question or questions vital to the final issue of the case within the meaning attributed to that expression by Lord Wright and by Justice MacGuigan. In the circumstances then, it was equally not in dispute before me that I ought to exercise my own discretion de novo in considering the issues that were before Prothonotary Lafrenière.
[22]I am further guided by the words of Justice Strayer in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc.,8 where he wrote at pages 596-597:
. . . the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. This case well illustrates the waste of resources and time in adding on to what is supposed to be a summary judicial review proceeding the process of an interlocutory motion to strike. This motion to strike has involved a hearing before a trial judge and over one half day before the Court of Appeal, the latter involving the filing of several hundred pages of material, all to no avail.
At page 600, Justice Strayer continued:
This is not to say that there is no jurisdiction in this Court either inherent or through Rule 5 [now Rule 4] by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion. [Emphasis added.]
While there is here an issue of statutory interpretation and the intention of Parliament, in addition to an issue as to the adequacy of the allegations in Mr. Froom's notice of motion, I am satisfied that the only question before me remains whether or not Mr. Froom's notice of motion is "so clearly improper as to be bereft of any possibility of success."
(3) This Court's jurisdiction to judicially review an authority to proceed issued by the Minister under the Extradition Act
[23]Counsel for the Minister urged that this question must be addressed by reference to the scheme of the Extradition Act and the intent of Parliament. She urged that it is apparent both from the record of the debates in Parliament when the Extradition Act was being considered and from the statutory scheme itself, as well as from relevant judicial pronouncements, that the following are essential features of the extradition process:
- first, extradition proceedings are intended to be dealt with expeditiously by the appropriate court in order to ensure prompt compliance with Canada's international obligations;9
- secondly, while the extradition process is intended to be expedient, it contains procedural safeguards that permit persons sought for extradition a fair hearing; and
- thirdly, jurisdiction with respect to extradition matters is, by the Extradition Act, vested in provincial superior courts, not the Federal Court of Canada.
For the last of the three propositions, counsel cited Garcia v. Canada (Minister of Justice).10 While that decision of Justice Teiltelbaum clearly stands for the proposition for which it is cited, I am satisfied that it is distinguishable on its facts from this matter and on the basis that it was a decision under the predecessor to the current Extradition Act.
[24]Subsection 18(1) of the Federal Court Act11 vests in the Trial Division of this Court "exclusive original jurisdiction" to grant a broad range of reliefs against "federal board[s], commission[s] or other tribunal[s]" as that phrase is defined in subsection 2(1) [as am. by S.C. 1990, c. 8, s. 1] of that Act. By section 18.1 [as enacted idem, s. 5] of that Act, such reliefs may be obtained on an application for judicial review made by the Attorney General of Canada or by "anyone directly affected by the matter in respect of which relief is sought".
[25]In Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services),12 Justice Décary, for the Court, wrote at pages 701-702:
When it amended paragraph 18(1)(a) of the Federal Court Act in 1990 to henceforward permit judicial review of decisions made in the exercise of a royal prerogative, Parliament unquestionably made a considerable concession to the judicial power and inflicted a significant setback on the Crown as the executive power, if one may characterize making the government still further subject to the judiciary as a setback. What appears from this important amendment is that Parliament did not simply make the "federal government" in the traditional sense subject to the judiciary, but intended that henceforth very little would be beyond the scope of judicial review. That being so, I must say I have some difficulty giving to s. 18(1)(a) an interpretation which places Ministers beyond the scope of review when they exercise the most everyday administrative powers of the Crown, though these are also codified by legislation and regulation.
[26]While the statutory authority given to the Minister to issue an authority to proceed under the Extradition Act might hardly be said to be an "everyday administrative power", I am satisfied that it is an administrative power codified by legislation.
[27]In Fast v. Canada (Minister of Citizenship and Immigration),13 a motion to strike an application for judicial review of a decision of this Court in a citizenship revocation matter, where a distinctive statutory process quite unlike, but nonetheless analogous, to the extradition process is provided, Justice Lemieux wrote at paragraph 40:
I am further not satisfied the Minister and the Attorney General have made out a case the Minister, in issuing the notice, was not exercising a statutory power contemplated by section 2 of the Federal Court Act and, in this respect the Federal Court of Appeal's decision[s] in Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Service, . . . and Krause v. Canada, . . . are apt. [Citations omitted.]
[28]It is at least arguable that the same might be said on the facts of this matter.
[29]Judges exercising jurisdiction under the Extradition Act have made it clear that they do not regard themselves as being vested by that Act with jurisdiction to review, in a manner equivalent to judicial review, the exercise by the Minister of the power to issue an authority to proceed. In Federal Republic of Germany v. Schreiber,14 Justice Watt wrote at paragraph 65:
The Minister of Justice is the guardian of Canadian sovereignty interests. At the front end of the process, it is his or her function to ensure that the request of the extradition partner is compliant with the Act and the applicable treaty. Her decision, albeit of a political nature, may well involve considerations of foreign law that are beyond the scope of the extradition hearing judge's authority. [Emphasis added.]
[30]In an endorsement dated November 3, 2000 in the same matter,15 Justice Watt wrote:
In combination, the Extradition Act and governing treaty, which define the limits of jurisdiction of an extradition hearing judge, do not authorize me to inquire into the validity of
i. the provisional arrest warrant; or,
ii. the authority to proceed.
on the ground of impermissible delegation of ministerial authority or actual or apprehended ministerial bias. [Underlined in applicant's authorities.]
[31]Impermissible delegation of ministerial authority and actual or apprehended ministerial bias are two of the issues raised on Mr. Froom's application for judicial review. Thus, if the Minister's exercise of discretion in issuing an authority to proceed is reviewable, it must be found elsewhere than in the role of the extradition judge.
[32]As earlier noted in these reasons, the Minister has a front-end and a back-end role in the extradition process. Upon receipt of an extradition request from an extradition partner, the Minister has the discretion to issue an authority to proceed. This is the front-end role of the Minister, earlier referred to as the second phase of the extradition process. Once the judicial element of the process, that carried out by an extradition judge, is completed, the Minister has a back-end role in determining whether or not to make a surrender order earlier referred to as the fourth phase of the extradition process. Once again as earlier noted in these reasons, the Extradition Act sets out a range of circumstances where the Minister is prohibited from making a surrender order. It also sets out a range of circumstances where the Minister is given the discretion to refuse to make a surrender order. It would appear to me that none of such circumstances comprehend a situation where the individual who was the subject of the extradition process manages to convince the Minister that he or she erred in issuing the authority to proceed.
[33]This Court's jurisdiction to review a ministerial decision to make a surrender order is specifically ousted by subsection 57(1) of the Extradition Act and such jurisdiction is vested in the court of appeal of the province in which the committal of the person was ordered. By contrast, and I regard it as a stark contrast, no mention is made in the Extradition Act of judicial review of a decision by the Minister to issue an authority to proceed. In my view, it is clear that Parliament understood that it could oust this Court's jurisdiction under the Federal Court Act and vest that jurisdiction either in the extradition judge or the court of appeal of the appropriate province. It clearly and unequivocally chose not to do so in respect of a decision by the Minister to issue an authority to proceed.
[34]Based upon the foregoing line of analysis, I am satisfied that, while Prothonotary Lafrenière makes 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.
(4) If this Court has jurisdiction to judicially review an authority to proceed, should it nonetheless refrain from exercising that jurisdiction?
[35]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.
[36]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.
CONCLUSION
[37]Based upon the foregoing analysis, and with great respect to the learned Prothonotary whose decision is under appeal before me, I cannot conclude that, in the words of Justice Strayer in David Bull Laboratories (Canada) Inc.,16 this is a "very exceptional" case where Mr. Froom's application for judicial review is "so clearly improper as to be bereft of any possibility of success". In the result, this appeal by way of motion will be allowed, the decision under review will be set aside and the Minister's motion to strike Mr. Froom's application for judicial review will be dismissed. Other elements of the Minister's motion that were adjourned before Prothonotary Lafrenière and that were not before me should be brought forward to be dealt with without delay.
COSTS
[38]Mr. Froom is entitled to his costs of the Minister's motion to strike, both before me and before Prothonotary Lafrenière, payable by the Minister to Mr. Froom in any event of the cause.
1 S.C. 1999, c. 18.
2 SOR/98-106.
3 Definition "extradition partner" in s. 2 of the Extradition Act.
4 Applicant's motion record, p. 000065.
5 S. 43 of the Extradition Act.
6 Supra, note 2.
7 [1993] 2 F.C. 425 (C.A.).
8 [1995] 1 F.C. 588 (C.A.).
9 See United States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 122.
10 (1997), 129 F.T.R. 174 (F.C.T.D.).
11 R.S.C., 1985, c. F-7 [s. 18(1) (as am. by S.C. 1990, c. 8, s. 4].
12 [1995] 2 F.C. 694 (C.A.).
13 [2001] 1 F.C. 257 (T.D.).
14 [2000] O.J. No. 2618 (S.C.J.).
15 Mr. Froom's authorities, Vol. 3, Tab 52.
16 Supra, note 8.