DATE: 20050303

DOCKET: C41591

COURT OF APPEAL FOR ONTARIO

RE:

MINISTER OF JUSTICE (Respondent) – and – PAULINE THOMSON (Appellant)

BEFORE:

LASKIN, ROSENBERG AND LAFORME JJ.A.

COUNSEL:

Philip Campbell and Vanora Simpson

for the appellant

David Littlefield

for the respondent

HEARD:

February 2, 2005

E N D O R S E M E N T

[1] This is an application for judicial review of the Ministerial Surrender Order, dated March 29, 2004, pursuant to s. 57 of the Extradition Act. The applicant stands charged in Pinellas County, Florida, U.S.A. with impaired driving causing bodily harm.

[2] The applicant has dual citizenship in the U.S. and Canada and is a 36-year-old single mother of two teenage daughters. The father has occasional visits. She has no criminal record. A family assessment report compiled on the request of the applicant’s counsel by Child and Family Consultant, shows that the applicant’s daughters rely heavily on her for support, both emotional and generally. It is this fact that underlies this application.

[3] In sum, the applicant submits that the Minister of Justice erred in four discrete ways:

(i) He failed to consider the interests of the appellant under s. 44(1)(a) Extradition Act.

(ii) He wrongly applied the threshold standard of "shocking the conscience" to the s. 7 Charter claims.

(iii) He erred by considering whether the appellant should be surrendered separate from her proposed conditions of surrender.

(iv) He failed to consider the s. 7 Charter rights of the appellant's two daughters.

[4] We called upon the Crown to respond to submissions (i) and (iii).

Issue (i):

[5] The applicant contends that s. 44(1)(a) of the Extradition Act confers a power on the Minister to refuse surrender beyond the required assessment of whether the Charter would be violated by ordering the fugitive's surrender. That is to say, a conclusion that the Charter would not be violated by surrender does not dispose of the matter. The Minister must nonetheless then go on and conduct an examination under s. 44(1)(a). It is submitted by the appellant that the Minister did not undertake a separate analysis of the applicant's claim pursuant to s. 44(1)(a).

[6] We disagree. The Minister's reasons demonstrate that he decided that the appellant's surrender was not contrary to either the Charter or the Extradition Act. Indeed, he specifically concludes that the appellant's surrender would not be "unjust or oppressive" under s. 44(1)(a) of the Act.

[7] We note that the sentencing of an offender to prison for the same crime in Canada, with the same underlying factual circumstances, would not of itself be unjust or oppressive even though it had the effect of separating the offender from the children. It would be a peculiar result therefore, if it were unjust or oppressive in the context of an extradition to a state with a very similar judicial and penal system.

Issue (iii):

[8] The applicant submits that the Minister erred in failing to consider alternatives advanced by the applicant to that of ordering her immediate surrender. The alternatives included: that the minister request assurances that the applicant be granted a non-custodial sentence if convicted; or that he delay ordering her surrender until her youngest daughter reached the age of majority.

[9] We see no merit to this ground of appeal. Once again, when the Minister's reasons are examined, it is clear that he considered the applicant’s alternatives and rejected them with coherent reasons for doing so. The Minister was aware of the range of sentence the applicant faced if convicted, and he addressed the dangers of a delay in prosecuting her for the serious criminal offence she was charged with.

[10] The standard of review of the Minister's surrender order is found in s. 57 of the Extradition Act. This has been repeatedly stated as being limited to cases of real substance; review must be exercised with the utmost circumspection; and judicial interference must be limited: United States v. Whitley (1994), 94 C.C.C. (3D) 99 (Ont. C.A.). Deference is to be given to the factual analysis and decisions of the Minister.

[11] In the end, we are not persuaded that there are any special features of this case that would compel this court to depart from any of these principles. The Minister fully addressed and considered each of the concerns put forward by the applicant, including those respecting the two daughters. He concluded that none of the concerns raised by the applicant rise to the level of "unjust or oppressive" as required by s. 44(1)(a) of the Extradition Act. We agree with his conclusion.

[12] The applicant has not demonstrated any errors made by the Minister that violate the relevant treaty, the Extradition Act, or the Charter.

[13] The application is therefore dismissed.

“John Laskin J.A.”

“Marc Rosenberg J.A.”

“H.S. LaForme J.A.”