A-570-03
2004 FCA 352
Arthur Froom (Appellant)
v.
Minister of Justice (Respondent)
Indexed as: Froom v. Canada (Minister of Justice) (F.C.A.)
Federal Court of Appeal, Linden, Sexton and Sharlow JJ.A.--Toronto, October 18 and 21, 2004.
Extradition -- Appeal, cross-appeal from Federal Court decision denying judicial review of Extradition Act, s. 15 authority to proceed -- Relevant features of Act reviewed -- Minister's position: F.C. should always decline Federal Courts Act, s. 18 jurisdiction to review authority to proceed, because Extradition Act providing adequate alternative remedy, and to avoid forum-shopping, other reprehensible conduct -- Judge ruled Court would exercise jurisdiction in certain circumstances but rejected application on merits, Minister could delegate power to issue authority to proceed -- Cross-appeal quashed as inappropriate, unnecessary -- Attempt to challenge portion of reasons, not decision itself -- Case law supporting proposition F.C. may decline jurisdiction where adequate alternative remedy -- Need not be perfect remedy -- Discretionary decision reversible on appeal only in limited circumstances -- Judge below of view extradition judge lacking jurisdiction to review authority to proceed -- Body of case law post-dating Judge's decision reveals extradition judges have broader powers than was supposed at that time -- Relief available under Charter, superior court's inherent jurisdiction to prevent abuse of own process.
Federal Court Jurisdiction -- Extradition Act, conferring jurisdiction on provincial superior, appellate courts -- Whether F.C. should always decline Federal Courts Act, s. 18 jurisdiction to review authority to proceed as Extradition Act provides adequate alternative remedy -- Avoidance of forum-shopping -- As decision to decline jurisdiction discretionary, not reversible on appeal except in limited circumstances -- Whether extradition judge has jurisdiction to review authority to proceed -- Relief under Charter available -- Recent case law is to effect extradition judge's power to grant remedies broader than previously thought.
This was an appeal and cross-appeal from the Federal Court's dismissal of an application for judicial review of an Extradition Act, section 15 authority to proceed.
Under the Act, only a provincial superior court judge may act as an extradition (or "committal") judge and an appeal lies only to the provincial appellate court. Again, only the last-mentioned court may sit in judicial review of the Minister's surrender decision.
Upon judicial review, it was the Minister's position that the Federal Court should always decline to exercise its Federal Courts Act, section 18 jurisdiction to deal with an application for judicial review of an authority to proceed since the Extradition Act provides an adequate alternative remedy and also to avoid multiple proceedings, forum-shopping, inconsistent results and delay. The Judge, however, ruled that the Court does have review jurisdiction under section 15 where strong grounds exist for an argument that the Minister has acted arbitrarily, in bad faith or for improper motive but that review is unavailable if the issues fall squarely within the extradition judge's jurisdiction, or that of the Minister, or where the argument involves a point of law that is settled. Turning to the merits, the Judge concluded that the only ground raised by applicant (appellant herein) which met the threshold was that of improper delegation but she denied the application because it is permissible for the Minister to delegate authority to issue an authority to proceed.
By way of cross-appeal, the Crown sought a declaration that the Federal Court should decline to entertain this judicial review application, although no such declaration was sought from the Judge hearing the application for judicial review.
Held, the appeal should be dismissed; the cross-appeal quashed.
The cross-appeal was an attempt to challenge part of the reasons for decision rather than the decision itself. A cross-appeal was both inappropriate and unnecessary herein since the Minister's argument could be raised in responding to the appeal.
It is settled law that the Federal Court has a discretion to decline jurisdiction where an adequate alternative remedy exists. It is not necessary that the alternative remedy be perfect. Since the decision to decline jurisdiction is discretionary, it is not open to reversal upon appeal unless irrelevant factors were taken into account, relevant factors disregarded or the conclusion was unreasonable.
The Judge below concluded that she had jurisdiction to review the authority to proceed because Parliament, while intending to streamline the extradition process, could not have meant to legislate that the decision to issue an authority to proceed would not be reviewable as that would violate the rule of law. The second reason for her decision was that an extradition judge lacks jurisdiction to review an authority to proceed. While agreeing with much of the Judge's reasons, this Court was unable to agree that an extradition judge lacks jurisdiction to provide an adequate remedy if issuance of the authority to proceed is tainted by a significant impropriety on the Minister's part. In such case, the extradition judge may grant relief under the Charter or pursuant to a superior court's inherent jurisdiction to control its own process and prevent the abuse thereof. A substantial body of authority has accumulated during the time since the impugned order was handed down and it reveals that the scope of remedies available to an extradition judge (and to provincial appellate courts sitting on appeal from extradition warrants and on judicial review of surrender decisions) is less narrow than it seemed when the Judge was considering the application herein. Had the Judge declined to deal with the issue of whether the Minister's discretion to issue an authority to proceed could be delegated, the extradition judge could have done so.
statutes and regulations judicially
considered
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], s. 24(1).
| Extradition Act, S.C. 1999, c. 18, s. 15. |
| Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18. |
| Federal Court Rules, 1998, SOR/98-106, r. 341(1)(b). |
| Immigration Act, R.S.C., 1985, c. I-2. |
| Immigration and Refugee Protection Act, S.C. 2001, c. 27. |
cases judicially considered
applied:
Zündel v. Canada (2004), 241 D.L.R. (4th) 362; 186 O.A.C. 196 (C.A.); leave to appeal to S.C.C. dismissed [2004] S.C.C.A. No. 316; affg R. v. Zundel, [2003] O.T.C. 1042 (S.C.J.).
considered:
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; revg (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.); United States of America v. Helfrich (2004), 183 C.C.C. (3d) 565 (B.C.S.C.); United States of America v. Sagarra (2004), 233 Nfld. & P.E.I.R. 181 (Nfld. C.A.); United States of America v. Saad (2004), 237 D.L.R. (4th) 623; 183 C.C.C. (3d) 97; 184 O.A.C. 282 (C.A.).
referred to:
Roberts v. Canada, [2000] 3 C.N.L.R. 303; (1999), 247 N.R. 350; 27 R.P.R. (3d) 157 (F.C.A.); 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.); 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; United States of America v. Kucan (2001), 151 O.A.C. 131 (C.A.); Federal Republic of Germany v. Schreiber, [2000] O.J. No. 2618 (S.C.J.) (QL); United States of America v. Sagarra (2003), 226 Nfld. & P.E.I.R. 321; 117 C.C.C. (3d) 180 (Nfld. C.A.); Thailand v. Karas, 2001 BCSC 72; [2001] B.C.J. No. 124 (QL); 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; 2001 SCC 19; United States of America v. Gillingham (2004), 239 D.L.R. (4th) 320; 201 B.C.A.C. 26; 184 C.C.C. (3d) 97 (C.A.); United Kingdom v. Woolley, [2003] O.J. No. 3805 (S.C.J.) (QL).
APPEAL and CROSS-APPEAL from Federal Court order rejecting application for judicial review of an Extradition Act, section 15 authority to proceed ([2004] 2 F.C.R. 154; (2003), 8 Admin. L.R. (4th) 1; 242 F.T.R. 1; 2003 FC 1299). Appeal dismissed: cross-appeal quashed.
appearances:
Gregory Lafontaine for appellant.
Dale L. Yurka and Joseph Cheng for respondent.
solicitors of record:
Lafontaine & Associate, Toronto, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
[1]Sharlow J.A.: The appellant Arthur Froom has appealed, and the Minister of Justice has cross-appealed, an order of a judge of the Federal Court dated November 7, 2003, dismissing an application for judicial review of an authority to proceed issued under section 15 of the Extradition Act, S.C. 1999, c. 18. The Federal Court decision is reported as Froom v. Canada (Minister of Justice), [2004] 2 F.C.R. 154 (F.C.).
[2]Section 15 of the Extradition Act was enacted in 1999 as part of a complete revision of the extradition process, which was intended to make the procedure simpler and more expeditious. The Extradition Act and its history are well and fully described in the Judge's reasons. At this stage it is necessary to highlight only two of the characteristics of the statutory scheme.
[3]First, the new Extradition Act, like its statutory predecessors, gives the provincial superior and appellate courts jurisdiction over all judicial functions under the Extradition Act. That reflects a recognition of the experience and expertise of the judges of the provincial superior and appellate courts in matters of criminal law. Only a judge of a provincial superior court may act as an extradition judge (sometimes referred to as a committal judge). Only a provincial appellate court may hear an appeal from the decision of an extradition judge. Only a provincial appellate court may hear an application for judicial review of a decision of the Minister to surrender a person sought to be extradited.
[4]Second, section 15 of the Extradition Act makes the Minister responsible for identifying the equivalent Canadian offences, which must be named on the authority to proceed.
[5]The authority to proceed against Mr. Froom reads as follows:
The Minister of Justice authorizes the Attorney General of Canada to proceed before the Superior Court of Justice 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 contarty [sic] to section 462.31 of the Criminal Code of Canada. |
Dated at Ottawa, Ontario this 3rd day of July, 2001
| [Signature] |
|
________ |
| Barbara Kothe, Counsel |
| International Assistance Group |
| for the Minister of Justice of Canada |
[6]The grounds for Mr. Froom's application for judicial review may be summarized as follows: (a) the Minister had not complied with the relevant extradition treaty; (b) the authority to proceed is a nullity because it lacks sufficient particulars; (c) the issuance of the authority to proceed is an abuse of process because of delay or because the Crown is also pursuing deportation proceedings; and (d) the issuance of an authority to proceed must be performed personally by the Minister and cannot be delegated.
[7]The Minister opposed Mr. Froom's application on the merits. The Minister also argued that, although section 18 [as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26] of the Federal Courts Act, R.S.C., 1985, c. F-7 [s. 1 (as am. idem, s. 14)], gives the Federal Court the jurisdiction to deal with an application for judicial review of an authority to proceed, the Federal Court should always decline to exercise that jurisdiction because the Extradition Act provides an adequate alternative remedy. Counsel for the Minister also points out the obvious, which is that if the Federal Court does not decline jurisdiction in such cases, the inevitable result will be multiple proceedings, forum-shopping, inconsistent results and delay.
[8]The conclusions of the Judge on the question of the jurisdiction of the Federal Court are set out in parts (a) and (b) of her "Summary of Conclusions" (paragraph 148 of her reasons):
(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;
[9]The Judge went on to consider Mr. Froom's grounds for his application for judicial review. She found that none of the grounds, except the question of improper delegation, met the threshold in (a) and (b) above. She found that the question of delegation met that threshold, but that it is permissible for the Minister to delegate the authority to issue an authority to proceed. She therefore dismissed Mr. Froom's application for judicial review.
Motion to adjourn the appeal hearing
[10]The hearing of this appeal was scheduled for a full day on Monday, October 18, 2004 in Toronto. Mr. Froom sought an adjournment on short notice because of the illness of one of his counsel. As counsel for the Minister objected to the adjournment, Mr. Froom's other counsel appeared at the hearing to speak to the motion to adjourn. However, he indicated that he would be prepared to speak to Mr. Froom's motion to quash the cross-appeal, and also to make submissions on the issue of the jurisdiction of the Federal Court to deal with Mr. Froom's application for judicial review. The Court allowed the adjournment motion in part. Consideration of the merits of Mr. Froom's application for judicial review was deferred. Counsel were directed to make oral submissions on the motion to quash the cross-appeal and on the jurisdiction issue.
The motion to quash the cross-appeal
[11]In the cross-appeal, the Crown seeks a declaration that the Federal Court should decline to deal with this application for judicial review, although no such declaration was sought from the Judge hearing the application. In my view, the Crown's cross-appeal is an attempt to challenge part of the reasons for her decision, not the decision itself. A cross-appeal is not necessary or appropriate in these circumstances because any argument in support of the order under appeal may be raised in response to the appeal (see, for example, Roberts v. Canada, [1999] 3 C.N.L.R. 303 (F.C.A.), at paragraph 147, and paragraph 341(1)(b) of the Federal Court Rules, 1998, SOR/98-106). I would grant the motion to quash the Minister's cross-appeal.
Whether the Federal Court should decline to exercise its jurisdiction
[12]It is well established that the Federal Court has the discretion to decline to exercise its judicial review jurisdiction if the applicant has available an adequate alternative remedy: Fast v. Canada (Minister of Citizenship and Immigration) (2001), 41 Admin. L.R. (3d) 200 (F.C.A.); Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3. In considering whether to decline jurisdiction, the test is whether the alternative remedy is adequate, not whether it is perfect. The decision to decline or refuse to decline jurisdiction is discretionary, and cannot be reversed on appeal unless the Judge has considered irrelevant factors, failed to consider relevant factors, or reached an unreasonable conclusion: Canadian Pacific Ltd. v. Indian Band Matsqui, [1995] 1 S.C.R. 3, at paragraph 39 (per Lamer C.J., on this point writing for the majority).
[13]Reza v. Canada, [1994] 2 S.C.R. 394 is instructive on this point. In Reza, the issue was whether the Ontario Court of Appeal was correct in reversing the decision of Ferrier J., then a judge of the Ontario Court (General Division), to stay an application for a declaration that certain provisions of the Immigration Act, R.S.C., 1985, c. I-2 were unconstitutional. At the time, the applicant was the subject of proceedings in the Federal Court dealing with those provisions. The Supreme Court of Canada reversed the decision of the Ontario Court of Appeal [Reza v. Canada (1992), 11 O.R. (3d) 65], substantially adopting the dissenting reasons of Abella J.A. (as she then was). The Court describes as follows the portion of her reasons dealing with the factors to be taken into account in considering the exercise of the discretion to stay proceedings (at page 403):
In her view there was no obligation on the part of the Ontario Court (General Division) to hear every case presented for adjudication in which there is a constitutional issue raised. She held that the discretion to decline to hear such a case surely exists when not only does the Federal Court have concurrent jurisdiction to deal with the matter, it also has expertise and experience in immigration law, administrative law and Federal Court procedure, the core issues of the respondent's application. She also found it significant that the Federal Court has an exclusive mandate over immigration matters and found the principles from Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 O.R. (2d) 253 (dealing with habeas corpus), were applicable. Abella J.A. noted that the failure to decline to exercise jurisdiction would raise concerns over forum-shopping, inconsistency and multiplicity of proceedings.
[14]A similar result was reached, for similar reasons, in Zündel v. Canada (2004), 241 D.L.R. (4th) 362 (Ont. C.A.) (application for leave to appeal to S.C.C. dismissed on October 21, 2004, [2004] S.C.C.A. No. 316 (QL)). In that case, the Ontario Court of Appeal dismissed an appeal of the decision of Senior Justice Benotto [[2003] O.T.C. 1042 (S.C.J.)] to stay proceedings in an application for a writ of habeas corpus ad subjiciendum with certiorari in aid. At the time, the applicant was in detention under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, because he was the subject of a security certificate which, if found to be reasonable, could lead to his deportation. A designated judge of the Federal Court had commenced the statutory proceeding required to determine the reasonableness of the security certificate. Those proceedings included periodic review of the applicant's detention. The Ontario Court of Appeal concluded that, even though the Superior Court of Justice is the only court that can grant an application for habeas corpus, the statutory procedure under the Immigration and Refugee Protection Act is not inappropriate or less advantageous than the habeas corpus jurisdiction of the Ontario Court.
[15]In this case, the Judge concluded that she should exercise her jurisdiction to deal with Mr. Froom's application for judicial review, but only to the extent that there were strong grounds for arguing that the Minister acted arbitrarily or in bad faith, or that the Minister was motivated by an improper motive or irrelevant considerations. She reached that conclusion largely because of two considerations, stated at paragraph 58 of her reasons. The first consideration was her conclusion that Parliament could not have intended, even when streamlining and modernizing the extradition process, that the decision to issue an authority to proceed would not be reviewable, because if that were the intent, it would violate the rule of law.
[16]The second consideration was the Judge's conclusion that it is settled law that the extradition judge has no jurisdiction to review an authority to proceed. In support of that conclusion, she cites United States of America v. Kucan (2001), 151 O.A.C. 131 (C.A.); Federal Republic of Germany v. Shreiber, [2000] O.J. No. 2618 (QL); United States of America v. Sagarra (2003), 226 Nfld. & P.E.I.R. 321 (Nfld. C.A.); Thailand v. Karas, 2001 BCSC 72; [2001] B.C.J. No. 124 (QL).
[17]I agree with the Judge that, in principle, the Federal Court should always decline jurisdiction to deal with an application for judicial review of an authority to proceed if the grounds for the application disclose arguments that are squarely within the jurisdiction of the extradition judge, because in such cases an adequate alternative remedy would be available from the extradition judge. The same is true of any matter that is within the jurisdiction of the Minister at the surrender stage, or the provincial appellate court on judicial review of the surrender decision, or any matter that, under the applicable extradition treaty or the Extradition Act, must be deferred to the foreign court if the person sought for extradition is surrendered.
[18]I also agree that an extradition judge does not have the jurisdiction to conduct a judicial review of the authority to proceed, or to decide anew whether the Minister was correct to conclude that the statutory conditions for the issuance of an authority to proceed are met.
[19]However, I am unable to agree with the Judge that it necessarily follows that an extradition judge lacks the jurisdiction to provide an adequate remedy if the issuance of the authority to proceed is tainted by a significant impropriety on the part of the Minister in the issuance of the authority to proceed. On the contrary, it is my view that an extradition judge who is presented with evidence that the decision of the Minister to issue an authority to proceed was made arbitrarily or in bad faith, or was motivated by improper motives or irrelevant considerations, has the requisite jurisdiction to grant an appropriate remedy under the Canadian Charter of Rights and Freedoms [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]] or under the inherent jurisdiction of the superior courts to control their own process and prevent its abuse: U.S.A. v. Cobb, [2001] 1 S.C.R. 587; United States of America v. Gillingham (2004), 239 D.L.R. (4th) 320 (B.C.C.A.).
[20]In fact, a review of the record of this case, the dozens of cases cited by both counsel, and the written and oral submissions of counsel, discloses not a single example of a potential challenge to the validity of an authority to proceed that could not be adequately remedied by an extradition judge or by a provincial appellate court, given the jurisprudence that has developed since the order under appeal was issued. The scope of remedies available to extradition judges, and provincial appellate courts sitting on appeal from extradition warrants or on judicial review from the Minister's surrender decisions, is not as narrow as it appeared to be when the Judge was dealing with Mr. Froom's application for judicial review.
[21]For example, in United States of America v. Helfrich, (2004) 183 C.C.C. (3d) 565 (B.C.S.C.), Groberman J. entertained an application to terminate extradition proceedings on the ground that the authority to proceed was signed by a person who was not authorized to sign it. He recognized the limitations on his statutory jurisdiction, but he reasoned that he would be acting within those limitations if, upon being satisfied that the authority to proceed was signed by someone without the requisite authority, he decided to terminate the proceedings on the basis that the authority to proceed was a nullity.
[22]In United States of America v. Sagarra (2004), 233 Nfld. & P.E.I.R. 181 (Nfld. C.A.), issues relating to the validity of the request for extradition, and thus the validity of the authority to proceed, were considered in the context of an application for judicial review of a surrender order.
[23]And it is suggested by way of obiter dictum in United States of America v. Saad (2004), 237 D.L.R. (4th) 623 (Ont. C.A.), that an authority to proceed may be quashed by an extradition judge as a remedy under subsection 24(1) of the Charter if it is insufficient to provide adequate notice of the case faced by the person sought to be extradited.
[24]I would add only one comment on whether, as a matter of law, the Minister's discretion to issue an authority to proceed can be delegated. The Judge concluded that it is open to the Minister to delegate that authority. I agree with her, substantially for the reasons she gave. I note, however, that if she had declined to deal with that point, the extradition judge could have done so: United Kingdom v. Woolley, [2003] O.J. No. 3805 (S.C.J.) (QL), and United States of America v. Helfrich.
[25]I conclude that the Judge should have declined to exercise her jurisdiction to consider Mr. Froom's application for judicial review of the authority to proceed, and should have dismissed his application on that ground.
Conclusion
[26]I would grant Mr. Froom's motion to quash the Minister's cross-appeal, and I would dismiss the appeal without reconvening the hearing to consider the merits of the application. I would grant the Crown the costs of the appeal, and I would grant Mr. Froom costs in respect of the motion to quash the cross-appeal.
Linden J.A.: I agree.
Sexton J.A.: I agree.