COURT OF APPEAL FOR ONTARIO
MACPHERSON, SIMMONS and CRONK JJ.A.
B E T W E E N :
THE UNITED STATES OF AMERICA and THE MINISTER OF JUSTICE AND ATTORNEY GENERAL OF CANADA
Respondents
- and -
DARLENE ANNE HARDIN (STAATS)
Applicant
Counsel:
David Littlefield for the respondents
John Norris for the applicant
Heard: June 22, 2006
On review from the decision of the Minister of Justice dated May 2, 2005 ordering the surrender of the applicant to the United States of America.
BY THE COURT:
1The applicant seeks judicial review of the May 2, 2005 order of the Minister of Justice in which he ordered the surrender of the applicant to the United States of America on the allegation of two counts of interference with custody. These charges arose from the applicant’s decision to remove two of her children from the United States contrary to a Tennessee court order that awarded custody of these two children to the applicant’s former husband and forbade her from taking the children out of the United States. The applicant brought the children to Brantford, Ontario, her former home before her marriage.
2In early March 2003, the applicant was indicted in the Limestone County Circuit Court for the 39th Judicial Circuit of the State of Alabama on two counts of interference with custody. Thereafter, the Untied States sought her extradition to Alabama.
3On March 17, 2003, the applicant was arrested under a provisional warrant issued in accordance with the Extradition Act, S.C. 1999, c. 18. She was released on bail.
4On June 9, 2003, the Minister of Justice authorized the Attorney General of Canada to seek an order for the committal of the applicant on the Canadian offences corresponding to the U.S. charges, namely, abduction of her two children in contravention of a custody order. On June 7, 2004, the applicant consented to committal on these offences. She was again released on bail pending the determination of the Minister.
5The Minister rendered his decision on May 2, 2005. He ordered the surrender of the applicant to the United States.
6In her application for judicial review, the applicant attacks the Minister’s order on two broad grounds:
(1) the Minister erred by concluding that the requirement of double criminality was satisfied; and
(2) the Minister erred in not exercising his discretion to refuse surrender because such an order would be unjust or oppressive or would offend the applicant’s rights under s. 7 of the Charter of Rights and Freedoms.
7By way of preliminary comment, we observe that both the Supreme Court of Canada and this court have repeatedly held that ministerial decisions in the extradition domain are entitled to substantial deference in a judicial review context: see Schmidt v. The Queen (1987), 1987 48 (SCC), 33 C.C.C. (3d) 193 (S.C.C.); Argentina (Republic) v. Mellino (1987), 1987 49 (SCC), 33 C.C.C. (3d) 334 (S.C.C.); and United States of America v. Whitley (1994), 1994 498 (ON CA), 94 C.C.C. (3d) 99 (Ont. C.A.) Whitley was affirmed in a one line endorsement: 1996 225 (SCC), [1996] 1 S.C.R. 467. Recently, in Canada (Minister of Justice) v. Thomson, 2005 5078 (ON CA), 2005 CanL II 5078 at para. 10, this court summarized the restrictions on its review of a Minister’s surrender decision in this fashion:
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), 1994 498 (ON CA), 94 C.C.C. (3d) 99 (Ont. C.A.). Deference is to be given to the factual analysis and decisions of the Minister.
8On the double criminality issue, the Minister stated in his decision:
The double criminality was determined to have been met when the extradition judge committed Ms. Staats on the offences listed in the Authority to Proceed, namely the Canadian offence of abduction in contravention of custody order, contrary to section 282 of the Criminal Code.
Double criminality is met when the alleged conduct that underlies the foreign charge constitutes any extradition crime under the law of Canada (United States v. McVey, 1992 48 (SCC), [1992] 3 S.C.R. 475 and United States v. Commisso (2000), 2000 5656 (ON CA), 47 O.R. (3d) 257 (C.A.)). What Ms. Staats admitted before an extradition judge, is that the conduct alleged against her by the State of Alabama, namely removing her children Amy and Dustin from the United States of America in violation of the Alabama custody order, would support a committal for trial in Canada, had she been charged with the Canadian offence of abduction in contravention of a custody order, contrary to section 282 of the Criminal Code. Consequently, Ms. Staats would have to stand trial in Canada if accused of an offence under section 282 of the Criminal Code, even if she were able to raise section 285 of the Criminal Code as a defence.
In my view, the fact that section 285 of the Criminal Code affords a codified defence of qualified necessity to an offence under section 282 of the Criminal Code (R. v. Adam (1993), 1993 8537 (ON CA), 79 C.C.C. (3d) 193 (Ont. C.A.)), does not affect the double criminality of the conduct at issue. It is the conduct underlying the foreign charge and not the defences to it that is relevant. A successful defence of necessity does not mean that the acts were not wrongful, rather it excuses the accused’s conduct because of “moral or normative involuntariness” (R. v. Perka (1984), 1984 23 (SCC), 14 C.C.C. (3d) 385 (S.C.C.)). The consideration of the codified defence of qualified necessity available to her under section 285 of the Criminal Code, is not a relevant consideration in determining whether the conduct alleged against her constitutes an offence punishable by the laws of both the United States of America and Canada.
9The applicant asserts that there are two errors in the Minister’s analysis: (1) he improperly rubber-stamped the decision of the extradition judge on the double criminality issue; and (2) he was wrong in saying that potential defences are not relevant in assessing this issue. We disagree. In our view, the Minister’s analysis on both components of this issue is legally correct.
10On the first component, we see no reason why a Minister, having issued an Authority to Proceed in relation to the Canadian offences, cannot consider, and adopt, the extradition judge’s conclusion that the double criminality requirement for extradition has been established. As was explained by Dambrot J. in United States of America v. Drysdale (2000), 2000 22651 (ON SC), 71 C.R.R. (2d) 133 (Ont. S.C.J.), it is the task of the Minister to determine compliance with s. 3(1)(a) of the Extradition Act, and s. 3(3) where applicable, and then to determine what offences under Canadian law correspond to the conduct alleged in the requesting state. It is then the task of the extradition judge to assess the sufficiency of the evidence. Once these two functions have been performed and the extradition judge has committed the person sought, the test for double criminality has been satisfied. Accordingly, the Minister made no error in saying that double criminality was met when the extradition judge committed Ms. Staats on the offences listed in the Authority to Proceed.
11On the second component of the double criminality issue, the Minister’s conclusion that “[i]t is the conduct underlying the foreign charge and not the defences to it that is relevant” is, in our view, entirely consistent with the case law: see Canada v. Schmidt, supra, and United States of America v. Adam (2001), 2001 4638 (ON CA), 151 O.A.C. 70 (C.A.).
12Turning to the applicant’s second issue, she contends that the surrender order is unjust and oppressive and violates her rights under s. 7 of the Charter. The foundations for this submission are the applicant’s evidence that she removed the children in order to protect them from their father and the existence in Canada of s. 285 of the Criminal Code, which provides:
- No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm.
The applicant maintains that there is no equivalent to this defence in Alabama and, therefore, she should not be surrendered.
13The Minister dealt with this submission in his decision. He had before him information about Alabama law and determined that there were analogues to s. 285 in Alabama. This conclusion was not unreasonable, let alone patently unreasonable. The Minister concluded: “Ms. Staats may raise the Alabama excuse of necessity and defence of duress before the trial court in Alabama.”
14Finally, in support of her Charter argument, the applicant argues that the Minister impermissibly fettered his discretion to decline to order her surrender by requiring that her surrender must “shock the conscience” in order to support a violation of her s. 7 rights.
15In our view, this misconceives the Minister’s decision. It is apparent from the Minister’s reasons, notwithstanding his single reference to the expression “shocks the conscience”, that he was aware that he was obliged to determine whether the applicant’s surrender would be contrary to the principles of natural justice. We, therefore, reject this argument.
16In the result, we see nothing on the record in this case to warrant our interference with the Minister’s analysis or conclusion.
17The application is dismissed.
RELEASED: June 27, 2006 (“JCM”)
“J. C. MacPherson J.A.”
“Janet Simmons J.A.”
“E. A. Cronk J.A.”