DATE: 20040319
DOCKET: C40086 and C40985
COURT OF APPEAL FOR ONTARIO
ROSENBERG, MOLDAVER and SIMMONS JJ.A.
B E T W E E N :
NAJEEB MAJED SAAD
Gregory Lafontaine for the applicant / appellant
Applicant/Person Sought
(Appellant)
- and -
Robin Parker
UNITED STATES OF AMERICA
for the respondent / respondent
Respondent/Requesting State (Respondent)
A N D B E T W E E N:
NAJEEB MAJED SAAD
Applicant
(Appellant)
- and -
MINISTER OF JUSTICE FOR CANADA
Respondent
(Respondent)
Heard: February 10, 2004
On appeal from committal by Justice Sandra Chapnik of the Superior Court of Justice on May 1, 2003, reasons reported at [2003] O.J. No. 1654 and [2003] O.J. No. 1655.
ROSENBERG J.A.:
[1] Najeeb Majed Saad appeals from the order of Chapnik J. committing him for extradition on certain drug offences and a sexual offence. He also applies for judicial review of the order of the Minister of Justice that he be surrendered to the United States of America. For convenience, I will refer to Mr. Saad as the appellant. The appellant’s principal grounds of appeal from committal and for seeking judicial review concern the sufficiency of the Authority to Proceed. While I would not give effect to those submissions, I would allow the appeal in part and quash that part of the committal order relating to one of the drug charges. Accordingly, I would remit the matter to the Minister to give further consideration to whether to order the appellant’s surrender.
THE FACTS
[2] On March 26, 2003, the Minister of Justice, pursuant to s. 15 of the Extradition Act, S.C. 1999, c. 18, issued an Authority to Proceed to the Attorney General of Canada to proceed before the Superior Court of Justice to seek an order for the committal of the appellant. The Authority to Proceed lists six Canadian offences that correspond to the alleged conduct for which the United States seeks the appellant’s extradition. As the appellant was discharged on three of the offences, I need only refer to the following three offences:
Trafficking in N-methyl-3,4-methylenedioxyamphetamine (N,alpha-dimethyl-1,3-benzodioxole-5-ethanamine), a substance represented or held out to be ecstasy (between February 1, 2002 and April 15, 2002), contrary to section 5(1) of the Controlled Drugs and Substances Act;
Trafficking in cocaine, a substance represented to be or held out to be cocaine (between February 1, 2002 and April 15, 2002), contrary to section 5(1) of the Controlled Drugs and Substances Act; and
Sexual Assault ([J.R.]) contrary to section 271 of the Criminal Code.
[3] The evidence in support of the application for extradition is contained in the Second Amended Record of the Case for Prosecution (the Record of the Case). It summarizes the testimony that is available for trial and would be sufficient under the law of the State of Florida to justify prosecution. That testimony can be briefly summarized as follows.
[4] On Friday February 8, 2002, the appellant met with two juveniles, E.S. and J.G., in Brevard County, Florida. On this occasion, the appellant gave the juveniles “ecstasy” and drove the juveniles to a wooded area where they engaged in various sexual acts. These juveniles were 15 years of age. The appellant was 27 years of age at the time. The following day the appellant, E.S. and J.G. drove to the Merritt Island area where the appellant supplied the juveniles with cocaine and “energy pills”. This conduct continued over the next two months and involved a number of juveniles in addition to E.S. and J.G. In particular, at some time between February 16th and March 2nd, the appellant supplied J.R., another juvenile, with ecstasy. J.R. passed out and when he regained consciousness he found the appellant having anal intercourse with him.
[5] The drugs supplied by the appellant to the juveniles on the various occasions were no longer available for analysis. Accordingly, the Authority to Proceed alleges trafficking on the basis of “holding out”. The evidence as to what was held out as “ecstasy” is in the expected testimony of Deputy J.C. Harrison that he was told that the appellant supplied the juveniles with “methylene-dioxy-methamphetamine, otherwise known as ecstasy”.
ANALYSIS
Appeal from committal
Sufficiency of the Authority to Proceed
[6] The appellant submits that the Authority to Proceed is inadequate as it did not particularize the transactions that were the subject matter of the extradition request. He submits that the materials produced by the extradition partner did not include the Florida charging documents or the relevant American legislation. He submits that the Authority to Proceed when read on its own, or even when read with the record of the case, did not define the factual transactions that were the subject of the extradition request.
[7] A preliminary issue with respect to this ground of appeal is whether the extradition judge had jurisdiction to quash the Authority to Proceed or discharge the appellant because of the alleged inadequacy of the Authority to Proceed. The extradition judge’s jurisdiction is statutory and there is no provision in the Extradition Act that expressly gives the judge the power to quash a deficient Authority to Proceed. Thus, s. 23 of the Act provides that the Minister may substitute another Authority to Proceed at any time before the extradition hearing begins, that the judge may “on application of the Attorney General” amend the Authority to Proceed after the hearing is begun, and that the Minister may at any time withdraw the Authority to Proceed, in which case, the court shall discharge the person. However, neither s. 23 nor any other provision of the Act appears to contemplate that the extradition judge can review the sufficiency of the Authority to Proceed.
[8] Finally, s. 24(2) of the Act provides that Part XVIII of the Criminal Code applies, “with any modifications that the circumstances require” at the extradition hearing. Part XVIII deals with the procedure at preliminary inquiries. However, the provision of the Criminal Code that deals with the sufficiency of indictments and informations, and gives a judge the power to quash an insufficient indictment or information, is set out in s. 601 of the Code, which is in Part XX of the Code, and would therefore not seem to apply to extradition hearings. See Froom v. Canada (Minister of Justice), 2003 FC 1299, [2003] F.C.J. No. 1655 (T.D.) at para. 97.
[9] The appellant submits that the extradition judge had the power to quash an insufficient Authority to Proceed under s. 25 of the Act, which provides as follows:
For the purposes of the Constitution Act, 1982, a judge has, with respect to the functions that the judge is required to perform in applying this Act, the same competence that that judge possesses by virtue of being a superior court judge.
[10] The appellant submits that if the Authority to Proceed is insufficient to provide adequate notice of the case he faces, this would violate the principles of fundamental justice, and the extradition judge could quash the information as a remedy under s. 24(1) of the Charter of Rights and Freedoms. I am prepared to assume that the extradition judge would have such a power. I note, however, that it may well be that a person who believes that the Authority to Proceed is insufficient may be able to apply to the Federal Court to review the sufficiency of the Authority to Proceed. See Froom v. Canada (Minister of Justice), at para. 54.
[11] Section 15(3) of the Extradition Act sets out the contents of the Authority to Proceed in these terms:
The Authority to Proceed must contain
(a) the name or description of the person whose extradition is sought;
(b) the name of the extradition partner; and
(c) the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person or the conduct in respect of which the person was convicted, as long as one of the offences would be punishable in accordance with paragraph 3(1)(b).
[12] The Authority to Proceed in this case complies with these mandatory requirements. In addition, it sets out the dates of the alleged drug-related offences and, in the case of the sexual offence, the name of the victim. The appellant submits, however, that the Authority to Proceed should set out particulars of the transactions so that he has notice of the case he must meet, and so as to ensure compliance with the rule of specialty. The latter rule prohibits the extradition partner from prosecuting for crimes other than those for which extradition was ordered. See U.S.A. v. Manno (1996), 112 C.C.C. (3d) 544 (Que. C.A.) at p. 552.
[13] I will begin with a consideration of the rule of specialty. An analysis of this claim requires reference to other parts of the Act. I start with s. 29, which sets out the extradition judge’s function upon committal:
(1) A judge shall order the committal of the person into custody to await surrender if
(a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the Authority to Proceed and the judge is satisfied that the person is the person sought by the extradition partner;
(2) The order of committal must contain
(a) the name of the person;
(b) the offence set out in the Authority to Proceed for which the committal is ordered;
(c) the place at which the person is to be held in custody; and
(d) the name of the extradition partner.
[14] Thus, there is nothing in s. 29 of the Act that requires the extradition judge to specify the particulars of the transaction. In this sense, s. 29 tracks s. 15(3), which sets out the mandatory requirements for the Authority to Proceed. The appellant submits that unless the Authority to Proceed contains particulars of the transaction, there is a risk that the person may be returned to the extradition partner on a vague charge and will therefore lose the benefit of the rule of specialty.
[15] In my view, this argument requires consideration of the provisions of the Act relating to the surrender order by the Minister and in particular s. 58, which sets out the requirements for the order of surrender. Section 58 provides, in part, as follows:
An order of surrender must
(a) contain the name of the person who is to be surrendered;
(b) describe the offence in respect of which the extradition is requested, the offence for which the committal was ordered or the conduct for which the person is to be surrendered;
(c) state the extradition partner to which the person is to be conveyed;
[16] Thus, s. 58(b) provides three different ways in which the order of surrender may be made. The first option is for the order of surrender to be based on the offence in respect of which the extradition is requested, which I take to mean that the Minister would make the order in terms of the foreign charging document. That is what was done in this case: the Minister’s order of surrender describes the offences by reference to the specific charges in the Florida charging documents. Alternatively, the Minister may make the order by reference to the offence for which the committal was ordered, which I take to mean in the terms of the Authority to Proceed in accordance with s. 29(2)(b).[^1] Finally, the Minister may make the order by reference to the conduct for which the person is to be surrendered, which I assume would require reference to the Record of the Case.
[17] As I have said, in this case the Minister made the surrender order by reference to the specific charges in the charging document from Florida. The order of surrender provides in part that the Minister orders the surrender of the appellant “for the offences of
- Six counts of delivery of a controlled substance to a minor, in violation of Florida Statutes 893.13(4)(a), as set out in counts 1, 8, 10, 12, 14 and 16 of superseding information number 02-61437-CFA”. Thus, the Minister has stated the offences for which the appellant is being surrendered in clear terms. The surrender order provides sufficient detail to avoid the prosecution of the appellant for crimes other than those for which surrender was ordered. The real issue in this case, it seems to me, is not one involving specialty but whether the surrender order was consistent with the order of committal. This is a matter I will consider when dealing with the application for judicial review.
[18] With respect to the argument based on the need for notice of the case to meet, it is my view that in this case, when the Authority to Proceed is read with the Record of the Case, the appellant had notice of the case he had to meet. The Authority to Proceed describes the conduct by reference to the corresponding Canadian offence and the time frame. Also, in the case of the drug offences, the drug is specified, and in the case of the sexual offence, the victim is specified. The Record of the Case provides the appellant with notice of the alleged conduct. It is true that the Record of the Case sets out a number of incidents that could constitute the offence. This does not, however, affect the sufficiency of the Authority to Proceed. Even an accused in Canada facing a domestic charge of sexual assault or drug trafficking could find that he or she is facing an information alleging that the offence was committed over a period of time. Such an information would not necessarily be invalid because the evidence adduced by the Crown showed that there were a number of incidents over that period of time. See for example, R. v. M. (G.L.) (1999), 1999 BCCA 467, 138 C.C.C. (3d) 383 (B.C.C.A.) and R. v. Selles (1997), 34 O.R. (3d) 332 (C.A.) at 339-41.
[19] In this case, the appellant knew the nature of the allegations against him. In effect, it was alleged that he engaged in a course of conduct that consisted of supplying juveniles with illegal drugs and other substances and engaging in sexual conduct with them during this time period. This is not a case like United States of America v. Drysdale, [2000] O.J. No. 214 (S.C.J.), where the facts set out in the Record of the Case disclosed a number of different types of conduct of strikingly different levels of severity. In Drysdale, the Authority to Proceed simply listed a number of offences such as “conspiracy to export hashish” without reference to date and, it seems, the Record of the Case described “facts that give rise to numerous possible conspiracy offences, some broad, some narrow, some national, and some international”. In that case, Dambrot J. had the counsel for the requesting state “specify what offences were actually intended to be considered”. In that way, the persons knew what case they had to meet.
[20] It may be that where the Record of the Case sets out conduct showing a number of different transactions of very different levels of severity which, however, would all technically fall within the description of the Authority to Proceed, and the extradition judge finds that only certain of the transactions were made out, the judge could include his findings in his report to the Minister under s. 38(1) of the Act:
A judge who issues an order of committal of a person to await surrender shall transmit to the Minister the following documents:
(a) a copy of the order;
(b) a copy of the evidence adduced at the hearing that has not already been transmitted to the Minister; and
(c) any report that the judge thinks fit.
[21] The appellant was entitled to a fair extradition hearing: United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587 at para. 33. I am satisfied that the absence of particulars did not deprive the appellant of a fair hearing. As I have said, the appellant knew the case against him. I would leave for another day a fuller consideration of the exact parameters of the Charter guarantee to the right to know the case in the extradition context, as well as whether the extradition judge has the jurisdiction to require particulars to an Authority to Proceed that otherwise meets the minimum statutory requirements. See United States of America v. Kavaratzis, [2004] O.J. No. 173 (C.A.) at para. 25.
[22] That said, I would encourage the Minister to be as specific as possible in drafting the Authority to Proceed. While the Authority to Proceed is not a charging document in the sense of an indictment or information,[^2] it is the foundation for the judicial phase of the proceedings, and greater precision will assist in expediting those proceedings. With a more carefully crafted document, the parties and the judge will have a better understanding of the real matters in issue and can direct their attention to those matters accordingly. Greater precision will also assist at the executive phase of the proceedings, when the Minister of Justice comes to draft the surrender order.
[23] I would make one last comment. The appellant submitted that the extradition judge erred in failing to dismiss the Authority to Proceed because the Attorney General failed to produce the American charging documents. I agree with the extradition judge that there is no requirement to produce the charging document from the extradition partner. One of the important aspects of the Authority to Proceed procedure was to do away with the need for the judge to refer to the foreign charging documents. The extradition judge is not concerned with foreign law. See United States of America v. Kavaratzis, at para. 17.
Proof of holding out
[24] The appellant submits that there was insufficient evidence in the Record of the Case to show that he held out the substances that he provided to the juveniles as ecstasy or cocaine. In light of my conclusion below concerning the ecstasy charge, I need only consider this submission as it applies to the cocaine. It is the case that there is no direct evidence in the sense of statements attributed to the appellant where he represented that the substance was cocaine. There was, however, circumstantial evidence of holding out. This included the evidence that the juveniles believed the substance to be cocaine and ingested it as if it was cocaine. I would not give effect to this submission.
Proof the substance was held out as a controlled drug
[25] As I have pointed out, the Authority to Proceed alleges that one of the Canadian offences corresponding to the conduct alleged against the appellant is:
Trafficking in N-methyl-3,4-methylenedioxyamphetamine (N,alpha-dimethyl-1,3-benzodioxole-5-ethanamine), a substance represented or held out to be ecstasy (between February 1, 2002 and April 15, 2002), contrary to section 5(1) of the Controlled Drugs and Substances Act.
[26] On a charge of trafficking by holding out it is not necessary that the prosecution establish that the drug supplied by the accused was in fact a controlled drug under the Controlled Drugs and Substances Act. The prosecution does, however, have to prove that the accused held out the substance as a controlled drug within the meaning of the Act, i.e. that the drug as held out can be found in one of the Schedules to the Act. The allegation in this case is that the appellant held the substance out as ecstasy. Ecstasy (unlike cocaine or heroin, for example) is not named in the Schedules to the Act. The Authority to Proceed seeks to fill that gap by reference to the chemical name, N-methyl-3,4-methylenedioxyamphetamine (N,alpha-dimethyl-1,3-benzodioxole-5-ethanamine), which is found in Schedule 3 to the Act. That schedule does not, however, state that this substance is ecstasy. The Attorney General therefore had to adduce some evidence to show that the appellant held out N-methyl-3,4-methylenedioxyamphetamine (N,alpha-dimethyl-1,3-benzodioxole-5-ethanamine).
[27] The Record of the Case is replete with references to “ecstasy”. There is, however, no evidence that ecstasy is N-methyl-3,4-methylenedioxyamphetamine (N,alpha-dimethyl-1,3-benzodioxole-5-ethanamine). To the contrary, the Record of the Case sets out that the appellant supplied the juveniles with “methylene-dioxy-methamphetamine, otherwise known as ecstasy”, but methylene-dioxy-methamphetamine is not listed as a controlled substance in the Schedules to the Controlled Drugs and Substances Act.
[28] The appellant submits that the extradition judge erred in ordering his committal in the absence of any evidence that the substance held out as ecstasy was a controlled substance. The extradition judge dealt with this issue as follows:
I take little cognizance of the fact that the scientific terms in related offence #2 do not exactly correspond with those listed in the Schedules to the Act. Clearly, both ecstasy and cocaine are found in the Schedules to the Act and they are controlled substances. [Para. 22 of [2003] O.J. No. 1655.]
[29] In my view, this case falls within this court’s decision in R. v. Bollers (1979), 52 C.C.C. (2d) 62.[^3] In that case, the accused was charged with trafficking “in a substance represented or held out by him to be a Narcotic, to wit: Cannabis sativa, its preparations, derivatives and similar synthetic preparations, namely Tetrahydrocannabinol (THC)”. The evidence was that the accused sold a substance to an undercover officer which he represented to be THC. The evidence from another police officer, however, was that the THC “which they sell on the street is not THC, but PCP which is a narcotic”. In those circumstances, the court held that the charge had not been made out. Speaking for the court, Houlden J.A. said the following at pp. 63-4:
Having alleged that the appellant represented or held out that the substance trafficked in was tetrahydrocannabinol, the Crown had the onus of proving that this substance was that drug: see R. v. Merritt (1975), 27 C.C.C. (2d) 156 at p. 160, 11 N.B. (2d) 393, and R. v. Gladstone and Rodriguez (1977), 37 C.C.C. (2d) 185.
[30] Taken at face value, the evidence in the Record of the Case is not that the appellant held out a controlled drug but that he held out something called methylene-dioxy-methamphetamine, which, as I have said, does not appear to be a controlled drug in Canada.
[31] I have considered whether it is open to this court to take judicial notice that the “ecstasy” referred to in the Record of the Case is indeed N-methyl-3,4-methylenedioxyamphetamine (N,alpha-dimethyl-1,3-benzodioxole-5-ethanamine), notwithstanding the evidence in the Record of the Case. The court may take judicial notice of “any fact or matter which is so generally known and accepted that it cannot reasonably be questioned, or any fact or matter which can readily be determined or verified by resort to sources whose accuracy cannot reasonably be questioned”. See R. v. Potts (1982), 36 O.R. (2d) 195 (C.A.) at p. 201.
[32] I am not persuaded that the chemical composition of ecstasy falls within the first category as a fact that is so generally known and accepted that it cannot reasonably be questioned. As to resort to sources of unquestioned accuracy, the respondent did not refer us to any such source. A quick search of the Internet produces only conflicting information. Thus, the Centre for Addiction & Mental Health, a well-known Canadian institution affiliated with the University of Toronto, describes ecstasy in these terms:
Ecstasy is a drug that has some hallucinogenic properties and is structurally related to amphetamines. Ecstasy can produce a mild intoxication, a strong sense of pleasure, and feelings of euphoria. However, Ecstasy has also been known to have negative and disturbing effects. Its short form chemical name is MDMA (3,4-methylenedioxymethamphetamine). Among the other names Ecstasy goes by are E, XTC, Adam, Euphoria, X, MDM, and Love Doves.[^4] [Emphasis added.]
[33] Without expert evidence I do not see how this court is in a position to determine whether the difference between the description in Schedule 3 and the Authority to Proceed, “methylenedioxyamphetamine”, and the description from the Centre, “methylenedioxymethamphetamine”, is significant. Of course, in this case there is the added complexity that what may be passing as ecstasy in Florida may not be the same substance being passed off as ecstasy in Canada. For what it is worth, the National Institute on Drug Abuse (NIDA) (part of the United States National Institutes of Health, Department of Health and Human Services) describes ecstasy in terms similar to those used by the Centre: “MDMA (3,4-methylenedioxymethamphetamine)”.[^5]
[34] The respondent referred us to the decision of Hill J. in R. v. Hoang, [2002] O.J. No. 1355 (S.C.J.) at para. 28:
N-methyl-3,4-methylenedioxyamphetamine or MDMA is commonly referred to as ecstasy. The drug is a derivative of amphetamine differing by the presence of a methylenedioxy group attached to the phenyl ring which gives MDMA pharmacological properties intermediate between those of amphetamine and of the hallucinogenic drug mescaline.
[35] I note, however, that the issue in Hoang was sentence and, more importantly, that Hill J. had the benefit of a report from a noted professor of pharmacology. No similar material was filed in the extradition proceedings or sought to be adduced in this court.
[36] Accordingly, I would discharge the appellant on the ecstasy offence in the Authority to Proceed.
The constitutional issue
[37] Before the extradition judge and in this court, the appellant argued that he should be discharged on the drug charges because “give” in the definition of traffic in the Controlled Drugs and Substances Act is unconstitutional. In short, the appellant submits that the offence of trafficking by giving violates s. 7 of the Charter. I need not set out the appellant’s submissions on this issue since, in my view, the evidence in the Record of the Case shows that the appellant trafficked by means other than simply giving. The evidence shows that the appellant transported the drugs to distribute them to several juveniles on many occasions. This conduct falls within the established definition of trafficking by distribution and transporting. See for example R. v. Gardiner (1987), 35 C.C.C. (3d) 461 (Ont. C.A.) and R. v. Cole (1981), 34 O.R. (2d) 416 (C.A.), leave to appeal refused [1982] 1 S.C.R. vii.
Judicial Review
Sufficiency of the Authority to Proceed
[38] The alleged insufficiency of the Authority to Proceed also arises in the context of the application for judicial review of the decision of the Minister to surrender the appellant. As I have indicated, in this case the Minister made the surrender order, under s. 58(b) of the Act, by describing the offences in respect of which the extradition is requested. Thus, the surrender order with respect to the drug charges reads in part as follows:
for the offences of 1) Six counts of delivery of a controlled substance to a minor, in violation of Florida Statutes 893.13(4)(a), as set out in counts 1, 8, 10, 12, 14 and 16 of superseding information number 02-61437-CFA
[39] The appellant submits that the Minister had no jurisdiction to surrender the appellant on six counts since the Authority to Proceed only lists two drug offences. In effect, he submits that the surrender order must track those parts of the Authority to Proceed upon which the extradition judge made a committal order.
[40] I would not give effect to this submission. In my view, s. 58 contemplates that the wording of the surrender can differ from the wording of the Authority to Proceed. At the surrender stage of the proceedings, the Minister may consider the foreign law. It is for the Minister to determine whether the offences for which extradition is sought falls within the scope of the Authority to Proceed and the committal order.
[41] Ignoring the exception in s. 59 of the Act[^6] and the complication of specific extradition arrangements, my understanding of the relationship between committal and surrender is as follows. Section 3 of the Act provides, in part, that a person may be extradited from Canada if, inter alia, “the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada” by, for example, imprisonment for a maximum of two years. Under s. 15, the Minister of Justice, after receiving a request for extradition, issues an Authority to Proceed to the Attorney General that, inter alia contains the name of the offence under Canadian law that corresponds to the “alleged” conduct. Thus, the Minister designates the Canadian offence. The Minister does not, however, determine whether in fact the alleged conduct would have constituted an offence in Canada. The Authority to Proceed is framed in the first executive phase of the proceedings. Whether the allegation has been made out is the judicial function.
[42] Under s. 29, the extradition judge orders the committal of the person to await surrender if inter alia “there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the Authority to Proceed”. After the judicial phase is completed, the Minister must make the surrender decision in accordance with ss. 58 to 65. Leaving aside a relevant extradition agreement, and s. 59 of the Act, the Minister is bound by the terms of s. 3 and can only surrender if the conduct of the person, had it occurred in Canada, would have constituted a Canadian offence. The factual part of that issue was determined by the extradition judge.
[43] As I see it, where, as here, the Minister decides to draft the surrender order by reference to the description of the offence in respect of which the extradition is requested, his task is to compare the terms of the Authority to Proceed upon which the committal was made with the foreign charges. It may be that, as is apparently the case here, the Authority to Proceed is broad enough to embrace more than one “count” in the foreign charging document. That determination is, subject to judicial review by a court of appeal, for the Minister in the second executive phase of the process.
[44] The final judicial phase takes place where the person applies to a court of appeal for judicial review. The grounds for judicial review are set out in s. 57(7) which provides that the court of appeal may grant relief on any of the grounds on which the Federal Court may grant relief under subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7. Section 18.1(4) provides as follows:
The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
[45] It would seem to me that, leaving aside specific extradition arrangements and s. 59, if the Minister ordered the surrender of a person for an offence that did not come within the conduct described in the committal order, he would have acted without jurisdiction. However, the onus is on the applicant for judicial review to show that the Minister acted without jurisdiction. The appellant in this case has not met that burden. Although he could have done so, the appellant has made no effort to obtain the foreign charging documents, nor to provide any information to cast doubt on the Minister’s decision.
[46] This case may be contrasted with the decision of the British Columbia Court of Appeal in United States of America v. Reumayr (2003), 2003 BCCA 375, 176 C.C.C. (3d) 377. In Reumayr, the Authority to Proceed set out a number of offences concerning possession of explosives, and offences of attempted arson and attempted mischief. The extradition judge ordered the committal of the person only on the possession charges. The surrender order, however, referred to “attempting to bomb the Trans-Alaska Pipeline by means of explosive devices” in violation of specific sections of the United States Code as charged in the U.S. District Court indictment. Mackenzie J.A. speaking for the court at para. 42 held that:
[T]he statutory scheme does not authorize extradition for offences that substantively exceed the offences that are supported in the committal proceedings. It would defeat the purpose of the committal hearing if the Minister's discretion extended to surrender for offences substantively beyond those supported by evidence at the committal hearing.
[47] He therefore held that the surrender order was deficient and should be set aside in the absence of some explanation for the difference between the committal order and the surrender order. He set out his reasons for this disposition at para. 43:
In this case, the Minister's reasons are silent on the apparent inconsistency between the offences in the committal order and those in the surrender order. If the difference here is simply a difference in characterization of the offence of attempt between Canada and the United States rather than a difference in substance between the request offences and the committal offences, I think that the statutory scheme requires that the Minister give reasons that support the difference as only a "named, defined or characterized" difference. If the difference is substantive then the surrender order is too broad. In the absence of an adequate explanation for the inconsistency, I think that the surrender order is deficient. [Emphasis added.]
[48] In this case, the appellant rests his argument solely on the basis that the surrender order contains more offences than did the Authority to Proceed. In my view, the mere fact that there are more offences set out in the surrender order than in the committal order is not proof that the Minister acted without jurisdiction. I would therefore not give effect to this submission.
Failure to consider relevant factors
[49] Finally, the appellant submits that the Minister failed to consider relevant factors. To understand this submission it is necessary to return to the facts and in particular the personal circumstances of the appellant. The appellant was born in Kuwait on November 12, 1974. He is the child of Palestinian refugees and, notwithstanding that he was born in Kuwait, he cannot hold Kuwaiti citizenship. During the first Gulf War in 1990, the appellant, who was then 16 years of age, and his family fled Kuwait. The family went to Lebanon, where they were permitted to live as refugees. The appellant alleges that Palestinian refugees live in “appallingly oppressive conditions” in Lebanon. After five months, the family left for the United States. Some members of the family have come to Canada where they have made refugee claims. Most of those members who remained in the United States seem to have been able to regularize their immigration status. For example, the appellant’s father is now an American citizen and his younger brother has a “green card”. The appellant has not regularized his American immigration status. The appellant states that he cannot return to Kuwait.
[50] In December 2001, the appellant was arrested by American authorities, held for two weeks, and then released. He claims that this was a consequence of new security measures following the tragedy of September 11, 2001. The appellant has a criminal record in the United States for four misdemeanour battery convictions. After his arrest in Canada on the extradition warrant, the appellant made a refugee claim.[^7]
[51] On the basis of this background, the appellant asked the Minister to refuse surrender. His argument went as follows. In light of the new security measures in the United States, were he to be surrendered the appellant would probably be held as a security threat, even though he is not one. The appellant says that he is a “stateless person”, and would therefore be held indefinitely. Alternatively, he might be deported to Lebanon, since that country will accept Palestinian refugees, but the conditions there are intolerable and he has no connection with that country. The appellant submits that this state of affairs would shock the conscience and violate his s. 7 Charter rights.
[52] In his reasons for decision to surrender the appellant, the Minister set out all of the circumstances recorded above and concluded that “there is nothing in Mr. Saad’s personal circumstances that would be unjust or oppressive or ‘shock the conscience’ if he were to be surrendered to face trial in the United States”. The Minister also rejected the submission that the appellant faces the risk of indefinite detention in the United States. In reaching that conclusion, the Minister said that he took into account the conclusion reached by Citizenship and Immigration Canada (CIC) “that there is no substantial ground to believe that Mr. Saad will face torture and it is unlikely that he will face cruel, degrading, or inhumane treatment if returned to the United States”. CIC also advised the Minister that they were “not aware of any serious risk that Mr. Saad will be persecuted if he is returned to the United States”. Finally, the Minister stated that there is no reason to believe that there is a serious risk that if he were deported to Lebanon the appellant would face persecution, and commented that “it is unlikely that he will face cruel, degrading, or inhumane treatment”.
[53] I have reviewed the material provided by the appellant to the Minister. That material consists of press releases, press clippings, and reports from Amnesty International and others concerning the treatment in the United States of non-citizens of Arab or Muslim background following September 11, 2001. Also included is information relating to the detention of a refugee from Haiti by the United States Attorney General. Unquestionably, this material raises some concerns. The difficulty for the appellant, as I see it, is in linking this information with the treatment of the appellant upon his return. Aside from the two-week detention in December 1991, there is nothing to show that this appellant would be a person of interest to the national security apparatus in the United States. His allegation that he would be held indefinitely, both as a security risk and because he is a stateless person, is belied by his counsel’s submissions to the Minister that the appellant “believes that he was released and not deported because, as a stateless person, there is no country to which he can be properly deported”. If that was the state of affairs in the immediate aftermath of September 11, 2001, it is difficult to understand why there should be such a dramatic change now. In any event, I cannot say that the Minister’s finding, based on the CIC review, is unreasonable, or in the terms of s. 18.1 of the Federal Courts Act, perverse or capricious.
[54] As to the prospect of the appellant’s return to Lebanon, the material submitted by the appellant to the Minister is sparse. He relies, for example, on a report from Amnesty International that thousands of Palestinian refugees living in camps in Lebanon continue to face systemic discrimination, restriction on their freedom of movement and restriction from entering some professions. Again, however, the link to the appellant is missing. The appellant has not provided any information about how he was treated when he and his family were in Lebanon following the first Gulf War, or any information to suggest that he would be persecuted in Lebanon. In my view, it was not unreasonable in these circumstances for the Minister to rely on the information from CIC. Despite the appellant’s plea that as a “Westernized young man” he will end up in a country where he has few, if any, family ties, I cannot say that the Minister was wrong in finding that this would not violate his s. 7 rights. As the Minister points out in his letter, the test under s. 7 is a strict one; it must involve circumstances that would be “simply unacceptable” or that sufficiently shock the conscience as to violate the s. 7 right not to be denied life, liberty and security of the person except in accordance with the principles of fundamental justice: See Pacificador v. Canada (Minister of Justice) (2002), 60 O.R. (3d) 685 (C.A.), leave to appeal dismissed [2002] S.C.C.A. No. 390, at paras. 44, 55 and 56.
[55] I would not give effect to this submission.
CONCLUSION
[56] I would allow the appeal from the extradition order and set aside the committal on the ecstasy count in the Authority to Proceed. In view of that disposition, it is necessary to set aside the Minister’s determination since the surrender order was based on the three offences in the Authority to Proceed. Pursuant to s. 57(6)(b) of the Act I would therefore set aside the Minister’s decision to surrender the appellant and refer it back for determination in light of the decision concerning the ecstasy count. No doubt the Minister will entertain submissions from the appellant on whether there should be a surrender order in light of the changed circumstances.
signed:_____ “M. Rosenberg J.A.”
_____ “I agree M.J. Moldaver J.A.”
_____ “I agree Janet Simmons J.A.”
RELEASED: ‘MR’ MARCH 19, 2004
[^1]: This option is the most problematic for application of the rule of specialty. See E. Krivel, T. Beveridge and J.W. Hayward, Guide to Canadian Extradition (Toronto: Carswell, 2002) at p. 404. [^2]: Froom v. Canada (Minister of Justice), at para. 97. [^3]: Also see Ex parte Salajko (1974), 19 C.C.C. (2d) 368 (Ont. H.C.J.) at 370 where Weatherston J. held, “I think at this stage it would be fair to take judicial notice of the fact that "speed" is a controlled drug; but I think it is too much to say that the Court ought to take judicial notice or claim to have judicial knowledge of the technical description of that drug. The Crown has defined the drug in its information and is bound by it.” [^4]: Online: Centre for Addiction and Mental Health http://sano.camh.net/geninfo/ecstasy.htm (date accessed: 29 February 2004). [^5]: Online: National Institute on Drug Abuse http://www.nida.nih.gov/Meetings/MDMA/MDMAExSummary.html (date accessed: 29 February 2004). [^6]: 59. Subject to a relevant extradition agreement, the Minister may, if the request for extradition is based on more than one offence, order the surrender of a person for all the offences even if not all of them fulfil the requirements set out in section 3, if (a) the person is being surrendered for at least one offence that fulfils the requirements set out in section 3; and (b) all the offences relate to conduct that, had it occurred in Canada, would have constituted offences that are punishable under the laws of Canada. [^7]: Because of the refugee claim, as required by s.40 of the Act, the Minister of Justice has consulted with the Minister responsible for immigration. The appellant was provided with a copy of the information provided to the Minister of Justice by Citizenship and Immigration Canada.