T-2024-01
2002 FCT 367
Arthur Froom (Applicant)
v.
The Minister of Justice (Respondent)
Indexed as: Froom v. Canada (Minister of Justice) (T.D.)
Trial Division, Lafrenière P.--Toronto, March 27 and April 2, 2002.
Extradition -- Motion to strike application for judicial review of authority to proceed issued by Minister of Justice under Extradition Act, s. 15 -- Authority to proceed not subject to judicial review absent allegation of violation of constitutionally protected rights, mala fides, flagrant impropriety -- Discretionary decision preliminary step in process, not resulting in deprivation of fundamental justice -- Moreover Extradition Act setting out comprehensive procedural regime ousting Court's jurisdiction -- Motion allowed.
Federal Court Jurisdiction -- Trial Division -- Minister of Justice issuing authority to proceed under Extradition Act, s. 15 -- Extradition Act setting out comprehensive procedural regime ousting Court's jurisdiction -- Parliament intended extradition proceedings to be dealt with expeditiously by provincial superior courts -- Application for judicial review in respect of authority to proceed struck out as could not possibly succeed.
Administrative Law -- Judicial Review -- Authority to proceed issued by Minister of Justice under Extradition Act, s. 15 not amenable to judicial review -- Only preliminary step in process which guarantees procedural fairness to person impacted -- Decision not resulting in deprivation of fundamental justice -- Curial deference owed to Minister's discretionary decision, absent allegation of violation of constitutionally protected rights, mala fides, flagrant impropriety.
Practice -- Pleadings -- Motion to Strike -- Application for judicial review of authority to proceed issued by Minister of Justice under Extradition Act, s. 15 -- Judicial review application having no possibility of success -- Authority to proceed not subject to judicial review -- Extradition hearing process constituting more than adequate alternative remedy, ousting Court's jurisdiction -- Motion allowed.
This was a motion to strike the application for judicial review of an authority to proceed issued by the Minister of Justice. Extradition Act, subsection 15(1) permits the Minister, after being satisfied that the conditions set out in paragraph 3(1)(a) and subsection 3(3) have been met, to issue an authority to proceed. Those provisions relate to the length of imprisonment that may be imposed for the offences in respect of which extradition is requested, or that remains to be served in the case of a person who has already been sentenced to imprisonment. The applicant is an American citizen who resides in Canada. The United States of America requested his extradition for prosecution in the U.S.A. for federal fraud offences. The Minister determined the Canadian offences which corresponded to the conduct alleged against the applicant and issued the authority to proceed. The applicant was arrested but subsequently released on recognizance.
The issues were: (1) whether the issuance of an authority to proceed is subject to judicial review; and (2) if the Court has jurisdiction to review the Minister's decision, whether an adequate alternative remedy was available to the applicant.
Held, the motion should be allowed.
A notice of application should be struck out only where it is "so clearly improper as to be bereft of any possibility of success."
(1) The Minister's decision to issue an authority to proceed pursuant to Extradition Act, section 15 is akin to the exercise of discretion by the Attorney General of prosecutorial functions, such as preferring an indictment. Both decision makers are vested with broad discretionary powers to effectively discharge their high constitutional duties within the criminal justice system. Their decision, although significant, is only a preliminary step in a process which guarantees procedural fairness to the person impacted. Moreover, the decision maker is also ultimately accountable to either Parliament or the legislature, and not the courts. Just as prosecutorial discretion should not be subject to judicial review absent evidence of bad faith, similar curial deference should be given to the Minister's discretionary decision made pursuant to Extradition Act, section 15. Administrative law principles only come into play when a person's fundamental rights, privileges or interests are finally or significantly affected by the decision. The Minister's decision to issue an authority to proceed did not result in any deprivation of fundamental justice. The applicant retained the right to challenge both its validity and sufficiency within the extradition process. In the absence of any allegation of violation of constitutionally protected rights, or of any conduct that could be construed as evidence of mala fides or flagrant impropriety on the Minister's part, the authority to proceed was not a decision amenable to judicial review.
(2) Moreover, the Extradition Act sets out a comprehensive procedural regime which ousts the Court's jurisdiction. The extradition hearing process with its right to appeal, the right to make submissions to the Minister, and the right to judicially review the Minister's surrender order, constitutes a more than adequate alternative remedy. Parliament intended that the extradition proceedings be dealt with by the provincial superior courts expeditiously so that Canada may promptly meet its international obligations. The extradition procedure contemplated by the Extradition Act is not only an adequate alternative forum, but is the only forum available to the applicant to deal with the issues raised herein. The application for judicial review could not possibly succeed.
statutes and regulations judicially
considered
Citizenship Act, R.S.C., 1985, c. C-29, s. 18.
| Extradition Act, S.C. 1999, c. 18, ss. 3(1)(a), (3), 15(1). |
| Federal Court Act, R.S.C., 1985, c. F-7, s. 18 (as am. by S.C. 1990, c. 8, s. 4). |
| Federal Court Rules, 1998, SOR/98-106, r. 384. |
cases judicially considered
applied:
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.); R. v. Baptiste, [2000] O.J. No. 528 (S.C.J.) (QL); Fast v. Canada (Minister of Citizenship and Immigration) (2001), 228 N.R. 8 (F.C.A.).
considered:
Federal Republic of Germany v. Schreiber, [2000] O.J. No. 2618 (S.C.J.) (QL).
MOTION to strike out the application for judicial review of an authority to proceed issued by the Minister under Extradition Act, section 15. Motion allowed.
appearances:
Lorne Waldman and David B. Cousins for applicant.
Dale L. Yurka, M. Sean Gaudet, and Lara M. Speirs for respondent.
solicitors of record:
David B. Cousins, Toronto and Jackman, Waldman & Associates, Toronto for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order and order rendered in English by
Lafrenière P.:
Introduction
[1]This motion is brought by the respondent, Minister of Justice (the Minister), for an order striking out the notice of application issued November 13, 2001, without leave to amend, and for judgment dismissing the application with costs to the Minister.
[2]As alternative relief, the Minister seeks an order striking out certain paragraphs from the notice of application and the affidavit of the applicant, as well as leave to file the respondent's affidavit material beyond the time limits set out in the Federal Court Rules, 1998 [SOR/98-106] and an order that the application proceed as a specially managed proceeding pursuant to rule 384.
[3]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.
Facts
[4]An application for judicial review was brought by the applicant, Arthur Froom ( Froom) on November 13, 2001 in respect of an authority to proceed issued on July 3, 2001 by the Minister pursuant to subsection 15(1) of the Extradition Act [S.C. 1999, c. 18] (the authority to proceed). The authority to proceed was signed by Barbara Kothe, counsel in the International Legal Assistance Group of the Department of Justice Canada.
[5]The Minister's discretion to issue an authority to proceed is set out in subsection 15(1) of the Extradition Act:
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.
[6]Paragraph 3(1)(a) and subsection 3(3) of the Extradition Act provide as follows:
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;
. . .
(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.
[7]The issuance of the authority to proceed is the first step in the extradition process, which may ultimately culminate in an order made by the Minister of surrender to the extradition partner.
[8]Froom is an American citizen and currently resides in Canada. By way of Diplomatic Note dated June 28, 2001, the United States of America (the U.S.A.), a party to an extradition agreement with Canada, requested the extradition of Froom for prosecution in the U.S.A. for federal fraud offences, which include mail fraud and engaging in transactions in criminally derived property.
[9]On July 3, 2001, the Minister of Justice issued the authority to proceed which authorized the Attorney General of Canada (the Attorney General) to seek an order for the committal of Froom. The Canadian offences which the Minister determined correspond to the conduct alleged against Froom in the U.S.A. are described in the authority to proceed as follows:
(1) conspiracy to commit fraud contrary to sections 380 and 465(1)(c) of the Criminal Code;
(2) fraud contrary to section 380 of the Criminal Code;
(3) conspiracy to launder the proceeds of crime contrary to sections 462.31 and 465(1)(c) of the Criminal Code; and
(4) laundering the proceeds of crime contrary to section 462.31 of the Criminal Code
[10]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 and surety for the amount of $20,000.
[11]The authority to proceed was provided to Froom's lawyer on September 12, 2001. In his affidavit filed in support of the application, Froom claims that he only became aware of the authority to proceed on October 23, 2001 when he viewed the contents of the motion record by the Department of Justice which had been used for the purpose of the ex parte application.
[12]On October 18, 2001, the Superior Court of Justice adjourned the extradition proceedings following a request for further disclosure by Froom's lawyer. The matter is presently returnable before the extradition judge on May 3, 2002, presumably to fix a date for the extradition hearing.
[13]In his notice of application, Froom seeks an order quashing the authority to proceed, as well as declarations that the authority to proceed is invalid and of no legal effect. Froom alleges in particular that the Minister failed to satisfy herself in accordance with subsection 15(1) of the Extradition Act that the conditions set out in paragraph 3(1)(a) and subsection 3(3) had been met, that the Minister's function to issue the authority to proceed had been improperly delegated and that the Minister failed to adequately describe the offences against him.
[14]At paragraph 26 of his affidavit filed in support of the application, one of a number of paragraphs which the Minister has requested be struck out, Froom provides the following rationale for his request that this Court intervene at this stage:
26. It is open to the Court to conclude that there was not even minimal analysis of the matter by any Canadian authority at the time the Authority to Proceed was issued in my matter. I should not be put to the effort and expense of defending my extradition the future (sic) when the material deficiencies in probative evidence in the materials relied on by the Minister of Justice in issuing the Authority to proceed (sic) exist and the Authority to Proceed alleges offences unknown to Canadian law.
[15]On November 15, 2001, Froom also commenced an action in this Court in which he seeks declarations that the authority to proceed is invalid, damages, and interim and permanent injunctions restraining the Attorney General of Canada and the Minister from proceeding with his extradition. Froom alleges in the statement of claim that he made a refugee claim in Canada in April 1998 based on "political persecution of medical and health care providers by powerful insurance lobby using the United States Justice Department and Federal Agencies as their means and ways to avoid having to pay legitimate claims by creating a climate of fear of being prosecuted for simple billing disputes such as whether a lesion removed or a varicose vein injected was medically necessary or not." He is presently the subject of a conditional order of deportation dated October 17, 2001.
Submissions of the parties
[16]The parties agree that the applicable legal test for striking out a notice of application is set out in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 in which the Federal Court of Appeal cautions that the Court should only strike out a notice of application where it is "so clearly improper as to be bereft of any possibility of success."
[17]The Minister advances two primary grounds which he claims justify striking out the application at its inception. First, the issuance of an authority to proceed is not a decision amenable to judicial review as it is akin to a discretionary power exercised by the Attorney General in a prosecutorial role. Secondly, even if this Court has jurisdiction to review the decision by the Minister, it should decline to do so in that an adequate alternative remedy is available to Froom. According to the Minister, the issues raised in the application ought properly be advanced in accordance with the Extradition Act, which provides a complete procedural code applicable to the extradition process.
[18]Counsel for Froom submits that the issues raised in the application for judicial review in the context of the Extradition Act are novel and have not previously been considered by this Court. As such, he says, the application for judicial review cannot be considered frivolous or vexatious and should be allowed to proceed. Counsel maintains that the Minister was carrying out a quasi-judicial, as opposed to purely discretionary, function in issuing the authority to proceed and that the decision is therefore subject to judicial review. While acknowledging that the central issue in this motion is whether an adequate alternative remedy is available to deal with the issues raised in the application, he disputes the Minister's contention that same can be provided within the extradition process. Counsel urges the Court to conclude, in light of the limited statutory jurisdiction of an extradition judge, that it is not beyond doubt that the issues raised in the application can be adequately addressed at the extradition hearing, and more particularly the grounds set out in paragraphs (i) to (viii) in the notice of application.
Analysis
[19]There are two distinct phases to the extradition process--the judicial phase and the ministerial phase. The judicial phase consists of the court proceedings which determine whether a factual and legal basis for extradition exists. It is concerned with the sufficiency of the evidence contained in the record of the case.
[20]The ministerial phase consists of the exercise by the Minister of his or her discretion at two distinct periods, at the beginning and the end of the extradition process. At the initial stage, the Minister is called upon to exercise his or her discretion whether to issue an authority to proceed pursuant to subsection 15(1) of the Extradition Act. The process is succinctly explained by Watt J. in Federal Republic of Germany v. Schreiber, [2000] O.J. No. 2618 (S.C.J.) (QL), at paragraphs 60 to 65:
In a temporal sense, the involvement of the Minister brackets that of the superior court judge. The Minister receives the request from the extradition partner. It is the minister's statutory responsibility under s. 7 of the Act to deal with the request. It is for the Minister to decide whether she or he will authorize the Attorney General to apply for a provisional arrest warrant. Further, it is for the Minister to say whether she or he will issue an authority to proceed that authorizes the Attorney General to seek, on behalf of the extradition partner, a judicial order of committal under s. 29 of the Act.
. . .
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.
[21]Counsel for Froom submits that an authority to proceed should be subject to judicial review before this Court because of the limited jurisdiction of an extradition judge to entertain challenges relating to the exercise of the Minister's discretion or the validity of her actions. I disagree. The Minister's decision whether to issue an authority to proceed pursuant to section 15 of the Extradition Act is akin to the exercise of discretion by the Attorney General of prosecutorial functions, such as preferring an indictment. Both decision makers are vested with broad discretionary powers to effectively discharge their high constitutional duties within the criminal justice system. Their decision, although significant, is only a preliminary step in a process which guarantees procedural fairness to the person impacted. Moreover, the decision maker is also ultimately accountable to either Parliament or the legislature, and not the courts.
[22]Courts have been reticent to review actions or conduct of prosecutors in the criminal law context based on sound principles of public policy and common sense. In R. v. Baptiste, [2000] O.J. No. 528 (S.C.J.) (QL), McKinnon J. held that prosecutorial discretion should not be subject to judicial review, absent evidence of bad faith. He further concluded that administrative law principles only come into play when a person's fundamental rights, privileges or interests are finally or significantly affected by the decision. Relevant extracts of his reasons are reproduced below, at paragraphs 29-30, 52:
To permit the importation of administrative law principles into the prosecutorial environment of the criminal law deserves reflection upon the potential impact of such a policy. There would be no end to decisions which would be reviewable, including the decision to prosecute or not prosecute an individual; the decision to appeal or not appeal a particular case; the decision to direct further investigation or not direct further investigation in any particular case; the decision to withdraw or not withdraw a particular charge; the decision to stay or not stay a prosecution; the decision to proceed by way of indictment or by summary conviction; the decision to divert a particular case outside the criminal law or not to divert that case outside the criminal law.
It is immediately apparent that to import administrative law principles and apply them to the everyday decision-making functions of the prosecution would effectively result in the complete paralysis of the administration of the criminal law. These decisions are made with obvious frequency in every Crown law office and in every courtroom in the common law world from minute to minute, hour to hour, and day to day. The nature of the workings of prosecutorial discretion make it singularly inappropriate to judicial review. To the extent that these decisions affect the interest of individual accused in the criminal process, those decisions are subject to review at trial. It is at the trial where the customary procedural safeguards affecting the rights of accused persons are engaged.
. . .
Absent bad faith on the part of the Crown, the court will not come to the aid of an accused who is complaining about the manner in the which the Crown has exercised its discretion.
[23]It follows that similar curial deference should be given to the Minister's discretionary decision made pursuant to section 15 of the Extradition Act. The Minister, as she then was, was required to satisfy herself that the conditions set out in paragraph 3(1)(a) and subsection 3(3) were met in respect of one or more offences mentioned in the request made by the U.S.A. Her decision to issue an authority to proceed did not result in any deprivation of fundamental justice to Froom, who retains the right to challenge both its validity and sufficiency within the extradition process. In the absence of any allegation of violation of Froom's constitutionally protected rights, or of any conduct that could be construed as being evidence of mala fides or flagrant impropriety on the part of the Minister, I conclude that the authority to proceed is not a decision amenable to judicial review.
[24]Moreover, even if the decision to issue the authority to proceed could be the subject of judicial review, I am satisfied that the Extradition Act sets out a comprehensive procedural regime which ousts this Court's jurisdiction. On receipt of the authority to proceed, the extradition judge, who is also a superior court judge, is required to hold an extradition hearing in order to determine whether the person ought to be committed to await surrender. An extradition hearing is not a criminal trial, but is rather more akin to a preliminary hearing. Where a person is sought for prosecution by the extradition partner, the judge must specifically determine whether (a) there is evidence 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 (b) the judge is satisfied that the person is the person sought by the extradition partner.
[25]If the judge orders the person to be committed awaiting surrender, the person has the right to appeal the committal order and to apply for judicial interim release. The decision whether or not to surrender the person lies with the Minister. The person sought is entitled to make submissions to the Minister with respect to any matter that is relevant to the Minister's decision. The Minister is precluded from surrendering the person if the surrender would be unjust or oppressive having regard to all the relevant circumstances, or the request for extradition is made for the purpose of prosecuting or punishing the person by reason of various enumerated grounds. The Minister's decision to surrender the person can be judicially reviewed in the provincial court of appeal, notwithstanding section 18 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)].
[26]Thus, the issuance of the authority to proceed initiates the judicial phase of the extradition process in which the person sought is granted "the full panoply of procedural safeguards." The person sought has ample opportunity to challenge the evidence presented against him by the extradition partner in the extradition hearing and has the right to appeal if he is ordered committed to await surrender.
[27]In Fast v. Canada (Minister of Citizenship and Immigration) (2001), 288 N.R. 8, the Court of Appeal held that the reference procedure set out in section 18 of the Citizenship Act [R.S.C., 1985, c. C-29] constituted an adequate alternative remedy that would justify the Court exercising its discretion to dismiss the judicial review application which sought to have a notice of proposed revocation set aside. The same reasoning applies in the present case. The extradition hearing process with its right to appeal, the right to make submissions to the Minister and the right to judicially review the Minister's surrender order, constitutes a more than adequate alternative remedy.
[28]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.
[29]For the reasons above, I conclude that the application for judicial review could not possibly succeed and must therefore be struck.
ORDER
1. The notice of application is hereby struck, without leave to amend.