DATE: 20060921
COURT OF APPEAL FOR ONTARIO
SIMMONS, ARMSTRONG and ROULEAU JJ.A.
B E T W E E N :
THE MINISTER OF JUSTICE AND ATTORNEY GENERAL OF CANADA and THE CZECH REPUBLIC
Kevin Wilson for the respondents
Respondents
- and -
RICHARD HAJNIS
Anthony Moustacalis for the applicant
Applicant
Heard: July 24, 2006
Application for judicial review of the decision of the Minister of Justice, Irwin Cotler, dated June 30, 2005, ordering the applicant’s surrender to the Czech Republic.
BY THE COURT:
1The applicant applies for judicial review of the June 30, 2005 decision of the Minister of Justice to surrender the applicant to the Czech Republic to face charges relating to production and possession of methamphetamine.
2The Minister issued an Authority to Proceed under the Extradition Act on November 7, 2002. On September 30, 2004, the applicant consented to committal on all charges listed in the Authority to Proceed. He was subsequently committed on October 18, 2004.
FACTS
3Although the applicant consented to a committal order, he opposed his surrender on several grounds. The applicant’s submissions to the Minister can be summarized as follows:
- surrender would amount to an abuse of process in light of the following circumstances:
(a) he was given immunity as a police informer and agent;
(b) the underlying charges and the extradition request are motivated by a property dispute between his family and corrupt senior Czech police officials; and
(c) because of irregularities in the investigation process, the inherent unreliability of the evidence supporting the extradition request and the failure of Czech authorities to question Czech drug investigators about these charges, it is apparent that he would not receive a fair trial;
surrender would be inappropriate because police corruption is a serious problem in the Czech Republic and would preclude him from receiving a fair trial; and
surrender should be refused because, if he is extradited, he would remain in custody for a lengthy period while this matter is dealt with and his life would be at risk because of his status as a police informant.
4In a letter dated June 30, 2005, the Minister rejected the applicant’s submissions and ordered that he be surrendered.
5In oral argument, the applicant abandoned two of the four grounds for judicial review raised in his factum. His submissions, therefore, focused on the allegations that:
the Minister addressed the concerns raised by the applicant only in the context of a s. 7 Charter breach and erred by failing to advert, specifically, to the test for refusing surrender under s. 44 of the Extradition Act; and
the Minister erred by setting too high a threshold for what could constitute a breach of fundamental justice.
6The applicant therefore submits that it is necessary that this matter be remitted to the Minister for reconsideration in accordance with the proper tests. He contends that both grounds of review advanced if established, would constitute errors of law and, therefore, the standard of review is correctness
ANALYSIS
7Having reviewed the Minister’s letter, we are not satisfied that he erred in ordering the surrender of the applicant and, for the reasons that follow, we would dismiss the application.
a) Did the Minister err in failing to advert, specifically, to the test for refusing surrender under s. 44 of the Extradition Act?
8At the outset of his letter, the Minister correctly set out that his discretion “to refuse surrender is justifiable only on compelling grounds related to specific provisions set out in the Extradition Act, the Treaty between the United Kingdom and Czechoslovakia for the Extradition of Criminals, or when surrender would be contrary to the rights guaranteed by the Canadian Charter of Rights and Freedoms [abbreviations omitted].”
9The Minister then carried out a detailed assessment of the facts advanced by the applicant and made a number of findings including the following:
the applicant’s information on the timing of the extradition request was in error and the correct information dispels the applicant’s suggestion that the extradition request was motivated by a property dispute between his family and corrupt senior Czech police officials or for some other improper purpose;
alleged shortcomings in Czech procedures do not support a conclusion that the applicant could not get a fair trial in the Czech Republic; on the contrary, the Czech authorities demonstrated good faith and had been responsive to the applicant’s concerns. The Czech authorities provided confirmation of the applicant having co-operated with the police in drug investigations. Whether the impugned actions underlying the extradition request were committed to assist Czech police in their investigation and whether the applicant was given immunity are matters to be determined at trial in the Czech Republic;
the applicant is not at risk of being treated in an oppressive manner if surrendered to Czech authorities;
the applicant has not established that he would be treated unfairly by virtue of “the general condition of the governmental and judicial apparatus” that currently exist in the Czech Republic;
the claim that the applicant may be at risk of harm in a Czech jail because he has cooperated with police has not been substantiated; and
as to the applicant’s claim that he will face lengthy pretrial detention, Czech law gives adequate bail rights and therefore, the applicant will have a reasonable and timely opportunity to seek pretrial release.
10Having reached the factual conclusions referred to above, the Minister stated:
In conclusion, I am of the view that none of the circumstances which you raise, either individually or cumulatively, would lead to a determination that Mr. Hajnis’ surrender to the Czech Republic would be “shocking or fundamentally unacceptable to our society,” or that his circumstances are such that they “constitutionally vitiate an order of surrender.” [Kindler, supra]. I have also determined that there are no other considerations that would warrant ignoring Canada’s obligations under the Treaty.
11In our view, it is apparent from the Minister’s letter that in assessing the applicant’s submission, the Minister analyzed the circumstances of this case, drew certain factual conclusions and then assessed whether those conclusions could support a claim that the principles of fundamental justice would be breached if he were to order surrender of the applicant. The factual conclusions are well founded and addressed all of the issues raised. These conclusions make it clear that the Minister considered that the threshold for establishing an abuse of process had not been met and that there would be no unfairness in requiring that the applicant’s claims be dealt with as a matter of defence in the Czech Republic.
12In the last portion of his conclusion, the Minister said that he had “determined that there are no other considerations that would warrant ignoring Canada’s obligations under the Treaty”. We agree that it would have been preferable for the Minister to have made specific reference to the test under s. 44 of the Extradition Act. However, in light of the factual conclusions that he reached and reading the letter as a whole, we understand this statement to reflect his conclusion that there was nothing in the record before him to trigger a refusal to surrender either pursuant to the Charter or s. 44 of the Extradition Act. Even assuming that a failure to refer to the specific test under s. 44 of the Extradition Act was an error, we would nonetheless refuse to grant the relief sought. Given the Minister’s factual findings, his failure to refer to the s.44 test did not affect the outcome and no risk of a miscarriage of justice has occurred.
b) Did the Minister set the threshold too high for what could constitute a breach of fundamental justice?
13The applicant submits that the Minister fell into legal error in that he interpreted s. 7 of the Charter as applying only where the surrender of the applicant would “shock the conscience”.
14In United States of America v. Burns, 2001 SCC 7, [2001], 1 S.C.R. 283 the Supreme Court of Canada recognized that the terminology “shocks the conscience” is in some sense a shorthanded way of describing conduct that breaches principles of fundamental justice. However, the court also stated that the use of this terminology must not be allowed to undermine the principle that the test to be applied is whether there has been a breach of the principles of fundamental justice.
15In our view, in this case, the Minister used the “shock the conscience” language as a shorthanded way of referring to whether the applicant’s surrender would amount to a breach of the principles of fundamental justice. Although a more fulsome expression of the test would have been preferable, after reviewing the Minister’s letter as a whole, we are not satisfied that, in this case, he erred in his analysis nor in his conclusion that the surrender would not breach the principles of fundamental justice.
CONCLUSION
16For these reasons, the appeal is dismissed.
“J.M. Simmons J.A.”
“R.P. Armstrong J.A.”
“Paul S. Rouleau J.A.”