The United States of America et al. v. Johnson a.k.a. Umezurike

[Indexed as: United States of America v. Johnson]

62 O.R. (3d) 327

[2002] O.J. No. 4759

Docket Nos. C37443 and C38414

Court of Appeal for Ontario,

Rosenberg, Cronk and Gillese JJ.A.

December 12, 2002

Extradition -- Duties of Minister of Justice -- Accused allegedly receiving letter from U.S. Immigration and Naturalization Service (INS) stating he had to leave United States within 60 days -- Accused came to Canada -- Applicant allegedly breaching terms of his supervised release by leaving U.S. -- Applicant committed for extradition to U.S. for enforcement of sentence -- Minister of Justice ordering applicant's surrender -- No evidence that Minister complied with statutory duty to consult with minister responsible for Immigration Act before making surrender order if person has claimed refugee status -- Section 44(1) of Extradition Act provides that Minister shall refuse to make surrender order if it would be unjust or oppressive to do so -- Minister erring in apparently finding irrelevant that applicant spent 22 months in custody in Canada under harsh conditions and would likely receive no credit for this time upon return to U.S. -- Minister erring in failing to consider applicant's claim that he left U.S. at direction of INS and whether he would be subject to deportation to Nigeria if extradited to U.S. -- Order of surrender capable of being unjust or oppressive in applicant's circumstances -- Applicant entitled to reasons from Minister that were responsive to factors relevant to his situation -- Matter remitted back to Minister of Justice -- Extradition Act, S.C. 1999, c. 18, ss. 40(2), 44(1).

The appellant, a Nigerian citizen, pleaded guilty in the United States to two counts involving selling counterfeit money. He was sentenced to six months' imprisonment followed by a three-year term of supervised release. After serving the prison sentence, he left the United States and came to Canada. He claimed that he did so after receiving a letter from the United States Immigration and Naturalization Service ("INS") instructing him to leave the United States voluntarily within 60 days. A warrant was issued for the appellant's arrest for breach of his supervised release conditions. The INS ordered the appellant's deportation to Nigeria. The United States requested the appellant's extradition. The extradition judge ordered the appellant committed for surrender. The appellant made several submissions to the Minister of Justice. He argued that s. 3(1)(b)(i) and 3(3) of the Extradition Act barred extradition. He also submitted that extradition should be prevented on humanitarian and compassionate grounds as he had been detained for approximately 15 months in deplorable conditions at the Toronto East Detention Centre. He noted that he had sought refugee status in Canada. The Minister concluded that extradition was not barred by s. 3(1)(b)(i) or 3(3) of the Extradition Act and that the appellant's personal circumstances were not of such a nature that he should refuse to order surrender. He specifically held that the time spent by the appellant in detention did not provide a basis for declining to order his surrender. The Minister did not refer to the appellant's alleged refugee claim. The appellant was ordered surrendered for extradition. He appealed the committal order and brought an application for judicial review of the Minister's surrender order.

Held, the appeal should be dismissed; the application for judicial review should be allowed. [page328]

The extradition judge correctly concluded that it was the Minister, not the extradition judge, who is to determine whether Canada's treaty obligations are engaged with respect to the particular individual whose extradition is being requested. She properly declined to decide counsel's submissions in respect of s. 3 of the Act. There was no error in the committal decision.

Under s. 40(2) of the Extradition Act, before making a surrender order with respect to a person who has claimed Convention refugee status, the Minister "shall consult" with the Minister responsible for the Immigration Act. There was nothing to indicate that the Minister complied with this statutory obligation. On this basis alone, the case had to be remitted to the Minister.

Section 44(1) 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". The briefing note prepared by the Minister's staff indicated that, in all probability, the United States would not take the time spent by the appellant in custody in Canada into account. The Minister erred in law in treating this lengthy period of time, for which the appellant might receive no credit, as irrelevant. The fact that the appellant had spent more time in custody in Canada, in harsh conditions, than he would have received for the offence for which his extradition was being sought was a relevant factor under s. 44. A surrender in those circumstances was capable of being unjust and oppressive. The Minister also failed to consider the appellant's submission that he left the United States at the direction of the INS. If the appellant committed the offence, in part, at the direction of the United States government, it could be unjust to now return him to the United States. In addition, the Minister did not consider the possibility that the appellant might be deported to Nigeria if sent back to the United States. In light of the appellant's assertion that his life would be in danger in Nigeria, extradition might be unjust. Given the mandatory nature of s. 44(1)(a) of the Act, the Minister must consider all relevant factors, singly and in combination, to determine whether surrender would be unjust or oppressive. Moreover, the Minister must give reasons for his decision that are responsive to all of the relevant factors.

APPEAL from a committal for extradition; APPLICATION for a judicial review of a surrender order.

Cases referred to Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, 243 N.R. 22; Kindler v. Canada (Minister of Justice) (1991), 45 F.T.R. 160n, 1991 78 (SCC), [1991] 2 S.C.R. 779, 84 D.L.R. (4th) 438, 129 N.R. 81, 6 C.R.R. (2d) 193, 67 C.C.C. (3d) 1, 8 C.R. (4th) 1 (sub nom. Kindler and Min. of Justice (Re)); Pacificador v. Canada (Minister of Justice) (2002), 2002 41595 (ON CA), 60 O.R. (3d) 685, 216 D.L.R. (4th) 47, 97 C.R.R. (2d) 20, 166 C.C.C. (3d) 321 (C.A.); United States of America v. Bonamie (2001), 2001 ABCA 267, 293 A.R. 201 (C.A.); United States of America v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, 85 B.C.L.R. (3d) 1, 195 D.L.R. (4th) 1, 265 N.R. 212, [2001] 3 W.W.R. 193, 81 C.R.R. (2d) 1, 151 C.C.C. (3d) 97, 39 C.R. (5th) 205 (sub nom. United States v. Burns); United States of America v. Yang (2001), 2001 20937 (ON CA), 56 O.R. (3d) 52, 203 D.L.R. (4th) 337, 87 C.R.R. (2d) 300, 157 C.C.C. (3d) 225, 45 C.R. (5th) 205 (C.A.); Whitley v. United States of America, 1996 225 (SCC), [1996] 1 S.C.R. 467, 27 O.R. (3d) 96n, 132 D.L.R. (4th) 575, 197 N.R. 169, 104 C.C.C. (3d) 447n, affg (1994), 1994 498 (ON CA), 20 O.R. (3d) 794, 119 D.L.R. (4th) 693, 25 C.R.R. (2d) D-1, 94 C.C.C. (3d) 99 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms Extradition Act, S.C. 1999, c. 18, ss. 3, 29(1), 40(2), 44(1) Immigration Act, R.S.C. 1985, c. I-2, s. 114(2) Immigrant and Refugee Protection Act, S.C. 2001, c. 27, s. 25(1) [page329] Treaties and conventions referred to Treaty on Extradition Between the Government of Canada and the Government of the United States, 3 December 1971, Can. T.S. 1976 No. 3 (entered into force 22 March 1976) [as amended by the Protocol Amending the Treaty on Extradition between the Government of Canada and the Government of the United States, 11 January 1988, Can. T.S. 1991 No. 37 (entered into force 26 November 1991)]

Kevin Wilson, for respondents. Tilo A. Johnson, on his own behalf.

The judgment of the court was delivered by

1GILLESE J.A.: -- Tilo A. Johnson brings an inmate appeal from an order dated November 23, 2001 committing him to be held in custody to await surrender to the United States. On May 6, 2002, Justice Minister Martin Cauchon ordered the surrender of Mr. Johnson to the United States. The appellant also brings an inmate notice of appeal (application for judicial review) from the Minister's Surrender Order and Warrant.

Background

2In response to a tip from informants, the United States Secret Service investigated the appellant, a Nigerian citizen, for passing counterfeit US$100 bills in Georgia. A secret service agent and an assistant United States attorney monitored a transaction in which the appellant sold 12 US$100 bills to the informants in exchange for $800 cash. The secret service arrested the appellant, who was identified as Josiah Umezurike. Twenty-nine additional federal reserve notes were found on the appellant's person at the time of his arrest.

3On June 7, 1996, the appellant pleaded guilty in the United States District Court - Northern District of Georgia to two counts of unlawful exchange of counterfeit obligations. On August 29, 1996, he was sentenced to six months' imprisonment, concurrent on each count, to be followed by a three-year term of supervised release, and was ordered to pay a special assessment of $100.

4The conditions of supervised release included the following: to not leave the judicial district without the permission of the court or probation officer; to pay any assessment that remained unpaid at the commencement of the term of the supervised release; to report to the probation officer, as directed by the court or probation officer, and submit a truthful and complete report [page330] within the first five days of each month; to truthfully answer all inquiries by the probation officer and follow the instructions of the probation officer; and to notify the probation officer within 72 hours of any change in residence or employment.

5The appellant served the six-month prison sentence and began the supervised release portion of his sentence on December 24, 1996. According to the unsworn statement of the probation officer, the appellant breached the terms of his supervised release in several respects. She stated that he failed to: pay the special assessment as directed, notify the probation officer of a change in employment and residency, submit monthly supervision reports, obtain permission of the probation officer to leave the Northern District of Georgia or to travel to reside in Ontario, and report to probation since April 27, 1997. He also allegedly provided false information to the probation officer.

6As a result of these alleged violations, the probation officer filed a "Petition for Warrant and Order to Show Cause Why Supervised Release Should Not Be Revoked". A U.S. District Court judge ordered a warrant for the appellant's arrest on January 14, 1998 for breach of his supervised release conditions.

7According to the material filed in this court by the appellant, in or around May of 1997, he received a letter from the United States Immigration and Naturalization Service ("INS") that stated that he should leave the United States voluntarily within 60 days. According to the appellant, he followed the dictates of the letter and voluntarily left the United States. He arrived in Canada on August 22, 1997. The appellant says that the letter did not specify where he was to go when he left the United States. He says that he understood that the letter was a departure order and that he was required to leave the United States.

8On April 5, 1999, the INS ordered the deportation of the appellant to Nigeria.

9It appears that on July 28, 2000, the appellant was arrested under a Warrant for Provisional Arrest and held in custody at the Toronto East Detention Centre.

10On September 27, 2000, the United States Embassy filed a diplomatic note requesting the appellant's extradition.

11On September 29, 2000, the Minister of Justice issued an Authority to Proceed based on the corresponding Canadian offences of possession of counterfeit money and uttering counterfeit money. On November 9, 2000, the Minister issued a second Authority to Proceed for "enforcement of sentences".

12On November 23, 2001, the committal order was issued.

13On May 6, 2002, the Minister of Justice ordered the surrender of the appellant to the United States. [page331]

14If surrendered, the appellant will face a supervised release revocation hearing before a judge who will investigate the probation officer's allegations that he breached his supervised release. If there is a finding that he breached the terms of his release, the maximum sentence he will face is two years' imprisonment.

15The appellant alleges that if he is deported to Nigeria, pursuant to the outstanding INS deportation order, his life will be in danger.

The Committal Order

16The extradition judge acted pursuant to s. 29(1)(b) of the Extradition Act, S.C. 1999, c. 18 (the "Act") which provides:

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

(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.

17In accordance with the provisions of s. 29(1)(b), the extradition judge is to order committal if two criteria are met: first, that the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed and, second, that the person before the court is the person who was so convicted.

18The role of the extradition judge, when acting pursuant to s. 29(1)(a) of the Act, has been consistently held to be limited. Rosenberg J.A., of this court, recently stated in respect of s. 29(1)(a) that:

The starting point must be an examination of the role of the judicial phase of the extradition process. That role, described repeatedly as a modest one, is primarily to ensure the identity of the person sought and to protect that person from being surrendered for conduct that we would not recognize as criminal.

United States of America v. Yang (2001), 2001 20937 (ON CA), 56 O.R. (3d) 52, 157 C.C.C. (3d) 225 at para. 47 (C.A.).

19In my view, the role of the extradition judge when acting pursuant to s. 29(1)(b) is similarly limited. The extradition judge is to ensure that the evidence establishes a prima facie case that the two criteria have been met.

20Counsel appeared on behalf of the appellant at the committal hearing. Through counsel, the appellant conceded the first criterion. The extradition judge satisfied herself as to the identity of the appellant, thereby meeting the second criterion. [page332]

21The extradition judge properly declined to decide counsel's submissions in respect of s. 3 of the Act, in my view. She correctly concluded that it is the Minister, not the extradition judge, who is to determine whether Canada's treaty obligations are engaged with respect to the particular individual whose extradition is being requested.

22I find no error in the decision of the extradition judge.

The Surrender Order

23Counsel for the appellant made three submissions to the Minister of Justice prior to the Minister's decision to make the surrender order.

24First, he argued that s. 3(1)(b)(i) of the Act operated to prevent extradition. Section 3(1)(b)(i) provides that a person may be extradited for the purpose of enforcing a sentence where the conduct of the person, had it occurred in Canada, would have constituted an offence punishable in Canada, in the case of a request based on a specific agreement, by imprisonment for a maximum term of five years or more. The offence in question was the Canadian equivalent of breach of probation. The maximum penalty for breach of probation in Canada is two years' imprisonment where the Crown elects to proceed by indictment. Thus, the appellant's counsel argued, extradition was prohibited by virtue of s. 3(1)(b)(i).

25Second, he submitted that s. 3(3) of the Act barred extradition because the appellant had already served the totality of his sentence of imprisonment. Counsel argued that extradition could only be ordered where the person who has been sentenced to imprisonment has not completed the totality of his or her sentence and the remaining custodial term is at least six months long.

26Third, he submitted that extradition should be prevented on humanitarian and compassionate grounds as the appellant had been detained for a significant period of time in deplorable conditions at the Toronto East Detention Centre, where as many as three and sometimes four persons shared one cell. Counsel submitted that "[g]iven that his impugned conduct amounts to nothing more than a breach of probation . . . his incarceration for so long would be shocking to the public."

27At the time of those submissions, the appellant had been in detention for approximately 15 months. By the time of the Minister's decision, he had been detained for approximately 22 months.

28Earlier in his submissions, counsel noted that the appellant had been required to leave the United States, during the supervised release portion of his sentence, due to removal proceedings by the INS. He submitted: "It thus appears that the [page333] government now seeking Umezurike's return is the same government that ordered his removal."

29The appellant made his own written submissions to the Minister, as well. He referred to his personal circumstances, including the fact that he is married and is the father of a young child in Canada who needs him, that he has made academic progress while in Canada, and that he has not engaged in any criminal activity while in Canada. He alleged that he had been the subject of a beating while in detention, had been denied needed medical care, and has been unjustly treated in the detention centre because he is African. He submitted letters that spoke to his good character and academic performance.

30The appellant also stated, in his written submissions, that he sought refugee status while in Canada.

31In a letter dated May 6, 2002 to counsel for the appellant, the Minister responded to the submissions and gave his decision requiring the appellant's surrender.

32The Minister considered the first two submissions of the appellant's counsel, and rejected both. The Minister concluded that s. 3(1)(b)(i) of the Act did not apply. Section 3(1)(b)(i) applies to extradition requests made pursuant to "a specific agreement". Extradition was not requested pursuant to "a specific agreement"; it was made pursuant to the Treaty on Extradition Between the Government of Canada and the Government of the United States (Amended by an Exchange of Notes), 3 December 1971, Can. T.S. 1976 No. 3 (entered into force 22 March 1976), as amended by the Protocol Amending the Treaty on Extradition between the Government of Canada and the Government of the United States, 11 January 1988, Can. T.S. 1991 No. 37 (entered into force 26 November 1991) (the "Treaty").

33The Minister noted that s. 3(3) of the Act is expressly subject to the terms of the relevant extradition treaty. The Treaty does not stipulate any minimum remaining period of incarceration. As well, the Minister stated that if the appellant's supervised release were revoked, he would face a maximum period of incarceration of two years, a period beyond the six-month requirement stipulated in s. 3(3).

34The Minister expressed the view that the appellant's personal circumstances were not of such a nature that he should refuse to order surrender.

35The Minister responded as follows to the submission that extradition should be refused because of the time that the appellant had spent in detention:

You have also submitted that Mr. Umezurike has spent a significant period of time in custody as a result of the extradition proceedings, and that I [page334] should refuse to order his surrender for this reason. I am of the view that this does not provide a basis for me to decline to order his surrender. It will be for Mr. Umezurike to raise this argument with the appropriate authorities in the United States of America.

36There is no response in the Minister's decision letter to the appellant's alleged claim for refugee status in Canada.

Analysis

37The standard of review by this court, of the Minister's surrender decision, is set out by Laskin J.A. in Whitley v. United States of America (1994), 1994 498 (ON CA), 20 O.R. (3d) 794, 94 C.C.C. (3d) 99 (C.A.), affd 1996 225 (SCC), [1996] 1 S.C.R. 467, 104 C.C.C. (3d) 447 at p. 805 O.R., p. 110 C.C.C.:

These passages, together with the requirements of the Act, indicate that if the Minister violates the fugitive's constitutional rights or otherwise errs in law, or if the Minister denies the fugitive procedural fairness, acts arbitrarily, in bad faith or for improper motives, or if the Minister's decision is plainly unreasonable, then the reviewing court is entitled to interfere; otherwise, the court should defer to the Minister's surrender decision.

38Intervention with a surrender decision due to an abuse of process or a violation of the Canadian Charter of Rights and Freedoms is warranted when, upon surrender, the individual would face a situation that is shocking to the conscience or which Canadians would find simply unacceptable. See Pacificador v. Canada (Minister of Justice) (2002), 2002 41595 (ON CA), 60 O.R. (3d) 685, 166 C.C.C. (3d) 321 (C.A.); Kindler v. Canada (Minister of Justice), 1991 78 (SCC), [1991] 2 S.C.R. 779, 67 C.C.C. (3d) 1; and United States of America v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, 151 C.C.C. (3d) 97.

39Under s. 40(2) of the Act, before making a surrender order with respect to a person who has claimed Convention refugee status, the Minister "shall consult" with the minister responsible for the Immigration Act. There is nothing in the Minister's response to the appellant, or in any material filed by the respondent, to indicate that the Minister complied with this mandatory obligation. On that basis alone, the case must be remitted to the Minister.

40Section 44(1) 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". I have already set out the Minister's response to the appellant's submission that he should not be surrendered because of the time spent in Canadian custody. I interpret that passage as a finding that the period of custody was an irrelevant factor. The briefing note prepared by the Minister's staff indicates that, in all probability, the United States judge [page335] will not take the time spent in custody in Canada into account. The Minister erred in law in treating this lengthy period of time, for which the appellant may receive no credit, as irrelevant. The fact that the appellant has spent more time in custody in Canada, in harsh conditions, than he would have received for the offence for which his extradition is being sought is a relevant factor under s. 44. A surrender in those circumstances is capable of being unjust or oppressive.

41That is not to say that the Minister was bound not to surrender the appellant. There may be reasons that would justify the surrender order notwithstanding the lengthy period of custody in Canada. What I do say is that this was a relevant factor which is capable of falling within s. 44(1) and the Minister was required to give reasons for finding that it did not warrant refusal to surrender.

42The Minister failed to consider two other relevant matters. The appellant submits that he left the United States at the direction of the INS. This, too, was a relevant factor to be considered and one which is capable of falling within s. 44(1). If the appellant committed the offence, in part, at the direction of the United States government, it could be unjust to now return him to the United States.

43In addition, the question arises as to whether the United States intends to act upon its deportation order if the appellant is surrendered. Although the letter from the Minister acknowledges that the appellant is subject to an outstanding deportation order, nothing is said about that possibility. If the appellant is sent back to the United States for an enforcement of sentence hearing, will he be subject to deportation? If so, extradition in such circumstances may be unjust, particularly given the appellant's assertion that his life will be in danger if he is deported to Nigeria.

44Moreover, it is possible that detention, in the circumstances, amounts to an abuse of process that would shock the Canadian conscience.

45Again, I do not say that the Minister was bound to refuse surrender. However, given the mandatory nature of s. 44(1)(a), I am of the view that the Minister must consider all relevant circumstances, singly and in combination, to determine whether surrender would be unjust or oppressive. See United States of America v. Bonamie (2001), 2001 ABCA 267, 293 A.R. 201 (C.A.).

46In my view, the Minister must give reasons for his decision. The holding of L'Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, at para. 43, a case arising in the context of [page336] deportation, applies equally to the decision to surrender under the Extradition Act.

In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.

(Emphasis added)

47The decision to surrender a fugitive to an extradition party is as important as the humanitarian and compassionate determination under s. 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 (now s. 25(1) of the Immigrant and Refugee Protection Act, S.C. 2001, c. 27), dealt with in Baker. The appellant was entitled to reasons that were responsive to the factors relevant to his situation.

Conclusion

48In view of these concerns, the Minister's surrender order cannot stand. However, in the circumstances, it is not possible for this court to determine whether surrender would shock the Canadian conscience or be unacceptable.

49I would dismiss the appeal from the committal order. I would grant the application for judicial review, set aside the decision of the Minister of Justice and refer the matter back to the Minister for determination in accordance with these reasons.