COURT OF APPEAL FOR ONTARIO
MOLDAVER, MACPHERSON and ROULEAU JJ.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA on behalf of THE REPUBLIC OF HUNGARY
Respondent
and
ADOLF HORVATH
Appellant
AND BETWEEN
ADOLF HORVATH
Applicant
and
THE MINISTER OF JUSTICE FOR CANADA
Respondent
Gregory Lafontaine and Ronald P. Poulton for the appellant/applicant
Croft Michaelson for the respondents
Heard: October 4, 2007
On appeal from the order of committal of Justice Eugene Ewaschuk of the Superior Court of Justice dated June 16, 2005 and on Application for judicial review of the May 17, 2006 decision of the Minister of Justice surrendering the applicant to the Republic of Hungary without conditions.
1The appellant, Adolf Horvath, appeals against his committal for extradition to the Republic of Hungary on three bases: that a stay of the proceeding ought to have been granted on the basis that it was an abuse of process, that the evidence was not sufficient to meet the test for committal, and that various comments made by the extradition judge gave rise to a reasonable apprehension of bias. In oral submissions, counsel focussed on the bias ground and did not pursue the insufficiency of evidence ground.
2Horvath also seeks judicial review of the Minister of Justice’s decision to surrender him to the Republic of Hungary. The grounds advanced are, first, that the Minister had no jurisdiction to surrender Horvath because a Pre-Removal Risk Assessment program (PRRA) officer had concluded that Horvath faced “more than a mere possibility of persecution” if returned to Hungary and declared Horvath to be a “protected person” under the Immigration and Refugee Protection Act S.C. 2001, c. 21 (IRPA). Second, the Minister of Justice had no authority to consult with the Minister of Citizenship and Immigration and, in deciding to do so, the Minister of Justice erred. Further, the information received from the Minister of Citizenship and Immigration and relied on by the Minister of Justice was incorrect and undermined the conclusions reached by the PRRA officer as to the risk of returning Horvath to Hungary. Third, the Minister of Justice committed a jurisdictional error by surrendering Horvath for offences outside the terms of the treaty with Hungary. At the hearing, counsel abandoned the first of these grounds.
3For the reasons that follow, I would dismiss the appeal and the application for judicial review.
Facts
4Horvath is a Hungarian of Roma ethnicity. He, his wife and a son maintain that they fled Hungary in 1999 as a consequence of numerous abuses inflicted upon them. Many of these abuses were perpetrated by the police and skinheads. Abuses of this kind are part of a well documented culture of oppression of persons of Roma heritage in Hungary.
5Horvath was found ineligible to advance a refugee claim but, on October 4, 2004, he was granted the status of “protected person” pursuant to the PRRA process set out in the IRPA. The “protected person” designation was made by a PRRA officer on behalf of the Minister of Citizenship and Immigration. The designation was made because the officer was satisfied that Horvath, because of his Roma ethnicity, would face “more than a mere possibility of persecution” if returned to Hungary.
6On November 12, 2003 an Authority to Proceed was issued by the Minister of Justice. Horvath’s extradition was sought by Hungary for conduct corresponding to the Canadian offences of extortion, uttering threats and robbery. Horvath had fled to Canada during his trial in Hungary on those offences.
The Committal Order
7At the extradition hearing, Horvath sought a stay of proceedings on the basis that the dominant purpose of his criminal prosecution in Hungary and of the extradition proceeding is to persecute him because he is Roma. As a result, the extradition proceeding should be found to constitute an abuse of process. In this court, Horvath submits that the extradition judge erred in refusing the stay and that the conduct of the extradition judge during the proceeding gave rise to a reasonable apprehension of bias. We disagree.
a) Stay Application
8Assuming that the extradition judge was correct in assuming jurisdiction to entertain the abuse of process application, the extradition judge was correct, in my view, in dismissing the application. I agree with the extradition judge’s conclusion that Horvath failed to adduce evidence sufficient to establish a s. 7 Charter violation or an abuse of process warranting a stay of proceedings.
b) Reasonable Apprehension of Bias
9Horvath alleges that a series of inappropriate and culturally insensitive interjections by the extradition judge were such as to give rise to a reasonable apprehension of bias. I would reject this submission.
10The threshold to establish real or perceived bias is a high one requiring cogent and substantial evidence that the judge has done something giving rise to a reasonable apprehension of bias. See R. v. S. (R.D.) (1997), 1997 324 (SCC), 118 C.C.C. (3d) 353 (S.C.C.).
11Some exchanges regarding the definition and origin of the term Roma were unfortunate and not pertinent. As well, some of the comments made by the extradition judge concerning his colleagues could be considered injudicious. They do not, however, when taken in the context of the whole proceeding, satisfy me that he had predetermined the issues or decided them on anything other than the evidence put before him, nor would they cause the reasonable, informed observer to conclude that the extradition judge was anything less than impartial.
12In the context of his bias allegation, Horvath argues that the extradition judge improperly questioned the fact that Horvath was of Roma decent and had been the subject of persecution when in Hungary. The fact that Horvath was a Roma and had suffered persecution had been established by the PRRA assessment and conceded by the Attorney General of Canada at the extradition hearing.
13In my view, the extradition judge’s questions, although of limited relevance, did not give rise to a reasonable apprehension of bias. Several of the questions were asked in response to the abuse of process claim being advanced by Horvath. Horvath alleged that he was being targeted for persecution by the requesting state and, through his questions, the extradition judge was seeking to understand how Horvath could be the subject of persecution in Hungary given that his name and physical appearance did not readily identify him as a Roma. While I acknowledge that the questions could have been framed in a more sensitive fashion and the questioning may not have been necessary, there is no reason to question the extradition judge’s bona fides in seeking to better understand this issue.
The Decision to Surrender
14On May 17, 2006, the then Minister of Justice Toews ordered Horvath’s surrender to Hungary. Subsequently, Horvath asked that the surrender order be reconsidered and, on May 4, 2007, the then Minister of Justice Nicholson advised that he was satisfied the surrender order should be maintained.
15Although Horvath concedes that a “protected person” can be extradited, he argues that the Minister of Justice committed reviewable errors in reaching his surrender decision. Specifically, Horvath submits that Minister Toews erred in consulting the Minister of Citizenship and Immigration. Further, Horvath argues that both Ministers of Justice erred in considering the information provided by the Minister of Citizenship and Immigration because that information sought to and did undermine the finding previously made by the PRRA officer on behalf of the Minister of Citizenship and Immigration. As set out previously, the PRRA officer found that Horvath faced “more than a mere possibility of persecution” if returned to Hungary.
a) Did the Minister of Justice have authority to consult the Minister of Citizenship and Immigration?
16Section 40(2) of the Extradition Act provides that prior to making an order surrendering a person who has made a claim for refugee protection, the Minister of Justice “shall” consult with the Minister of Citizenship and Immigration. Horvath submitted that this provision exists so that, where the person sought has claimed refugee status, the Minister of Justice will receive an assessment of risk from the Minister of Citizenship and Immigration before making a decision on surrender. In the present case, because Horvath was not seeking refugee status and the Minister of Citizenship and Immigration’s risk assessment had already been provided through the PRRA officer’s report, the Minister of Justice had no jurisdiction to seek what would, in effect, be a second risk assessment by the Minister of Citizenship and Immigration.
17I disagree with this interpretation of the provision. Section 40(2) of the Extradition Act does not purport to limit the circumstances in which the Minister of Justice can consult with the Minister of Citizenship and Immigration (nor, for that matter, other ministers); it only requires the Minister to do so in the context of an undecided refugee claim. In fact, in his submissions to Minister Toews, Horvath took the position that, in the circumstances of his case, Minister Toews was required to consult the Minister of Citizenship and Immigration.
18The Minister of Justice’s decision is political in nature. The Minister is not bound by the record before the extradition judge and is entitled to consider various other relevant materials in the exercise of his discretion. See United States of America v. Whitley (1994), 1994 498 (ON CA), 94 C.C.C. (3d) 99 (Ont. C.A.) aff’d (1996), 1996 225 (SCC), 104 C.C.C. (3d) 447 (S.C.C.). I see no error in the Minister of Justice having sought information from the Minister of Citizenship and Immigration.
b) Was the information provided by the Minister of Citizenship and Immigration wrong and did it improperly undermine the finding that Horvath faced “more than a mere possibility of persecution” if returned to Hungary?
19Following the PRRA assessment, Horvath was given the status of “protected person” because of the risk of persecution he faced if returned to Hungary. Since the PRRA officer represents the Minister of Citizenship and Immigration, Horvath argues that the Minister of Citizenship and Immigration cannot, in response to an inquiry by the Minister of Justice, provide advice which is inconsistent with or which would undermine the PRRA officer’s finding. Horvath argues that this is precisely what the information provided by the Minister of Citizenship and Immigration did.
20In support of this submission, Horvath points first to the final paragraph of the case summary provided to the Minister of Justice by the Minister of Citizenship and Immigration. That paragraph states that the Minister is not persuaded of “a serious possibility” that Horvath will be subjected to persecution as a Roma if returned to Hungary. Horvath argues that the Federal Court of Appeal in Adjei v. Canada (Minister of Employment and Immigration), 1989 9466 (FCA), [1989] 2 F.C. 680 and in Ponniah v. Canada (Minister of Employment and Immigration) (1991), 1991 14431 (FCA), 132 N.R. 32 has, in effect, equated the expressions “more than a mere possibility” and “a serious possibility”. As a result, the Minister of Citizenship and Immigration’s statement that he was not persuaded of “a serious possibility” directly contradicts the PRRA officer’s finding that Horvath faced “more than a mere possibility” of persecution.
21Second, Horvath points to portions of the Minister of Citizenship and Immigration’s case summary, which suggests that, somehow, the situation in Hungary has changed and that Romas now benefit from state protection. These statements, Horvath argues, are wrong or misleading. The Minister of Citizenship and Immigration does not set out what had changed in Hungary since the determination made by the PRRA officer. Further, the Minister has not applied the appropriate legal standards with respect to the assessment of state protection. The fact that there have been improvements and serious efforts is not sufficient. The test in matters involving refugee claims is whether the state protection is effective and adequate (see Molnar v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1081, [2003] 2 F.C. 339 (T.D.)). Horvath submits, therefore, that in reaching his decision, the Minister of Justice relied on information that was wrong and misleading.
22I would not give effect to these submissions. The Minister of Citizenship and Immigration and both Minister Toews and Minister Nicholson were aware of the PRRA officer’s conclusion that Horvath faced “more than a mere possibility of persecution” if returned to Hungary.
23The statement contained in the Minister of Citizenship and Immigration’s case summary to the effect that he was not persuaded of “a serious possibility” that Horvath would be subjected to persecution if returned to Hungary could, if read in conjunction with the cases cited by Horvath, suggest that the Minister of Citizenship and Immigration disagreed with or sought to reverse the PRRA officer’s decision. Although the Minister of Citizenship and Immigration’s choice of words was clearly unfortunate, when that statement is considered in the context of what the Minister was asked to do and the whole of the case summary he provided, I am of the view that it was not intended to contradict nor would it have been understood to be contradicting the PRRA officer’s findings. I say this for three reasons.
24First, the Minister of Justice’s decision clearly acknowledged that Horvath was a “protected person” and there is no suggestion in the decisions of Minister Toews and Minister Nicholson that they interpreted the case summary from the Minister of Citizenship and Immigration as overruling or contradicting the PRRA officer’s finding. Minister Nicholson’s decision states as follows: “Minister Toews clearly accepted that Mr. Horvath had ‘protected person’ status in Canada and he actively considered the findings of the PRRA officer as being relevant factors in his assessment.” Minister Nicholson went on to state: “[a]s a result, it is also clear to me that Mr Horvath’s ‘protected person’ status was not in dispute insofar as the findings made in the [Minister of Citizenship and Immigration’s] Case Summary were concerned.”
25Second, the framework within which the PRRA officer assesses risk is different from the framework within which that of the Minister of Justice must assess risk. As noted in Minister Nicholson’s decision:
The decision of the PRRA officer was made in the context of the immigration process, not the extradition process, and it is evident that in concluding that Mr. Horvath would not benefit from the protections generally available to persons in Hungary, the PRRA focused largely on his specific claims of ill treatment. The assessment did not take into account Canada’s obligation to its foreign treaty partner to surrender a person sought on criminal charges, subject, of course, to such surrender being in conformity with the principles of fundamental justice.
26In the extradition process, the risk being assessed is different than the risk assessed in the immigration process. In my view, therefore, the Minister of Justice could quite properly seek input from the Minister of Citizenship and Immigration. This input would be for a purpose different from the assessment made by the PRRA officer. As set out by Minister Nicholson, concerns in the extradition process include “the general availability of protections in the state seeking a person’s extradition, particularly as regards the safeguards in their judicial and correctional systems”. This information “is entirely relevant to the Justice Minister’s executive role in determining whether surrender would be fair. Such information is vital to the proper balancing of the competing interests of Canada’s treaty partner with the individual interests of the person sought for extradition.”
27Minister Toews and Minister Nicholson understood their role and did not misinterpret the information provided by the Minister of Citizenship and Immigration. Specifically, Minister Toews acknowledged that police mistreatment still exists in Hungary. He nonetheless relied on the assessment of the Minister of Citizenship and Immigration that “there are no substantial grounds to believe that [Mr. Horvath] will be tortured and it is unlikely that his life will be at risk or that he will be subjected to face cruel and unusual treatment or punishment, should he be returned to the Republic of Hungary today.” In my view, the Minister properly took this into account.
28Third, the test to be applied by the Minister of Justice when assessing risk is different than the test applied by a PRRA officer. The PRRA officer assesses whether there existed “more than a mere possibility of persecution”. This does not involve being satisfied on a balance of probability standard. By contrast, the test applied by the Minister of Justice is an assessment on a balance of probability standard. Minister Toews acknowledged this different standard of proof when he referred to this court’s decision in United States of Mexico v. Hurley (1997), 1997 3355 (ON CA), 116 C.C.C. (3d) 414 (Ont. C.A.). This decision stands for the proposition that the person sought must establish that he will in fact be subjected to the persecution he alleges and that this must be established on the higher standard of a balance of probability.
29In my view, therefore, the Minister of Citizenship and Immigration’s case summary was not intended to overrule or undermine the PRRA officer’s decision. Nor did it attempt to show that, since the PRRA officer’s assessment, the situation in Hungary had changed such that, if a new PRRA were carried out in accordance with the standard of proof applicable to such assessments, the PRRA officer would conclude that Romas now benefited from improved police and state protection. Rather, the case summary was a risk assessment that acknowledged the PRRA officer’s conclusions and provided additional information relevant to the surrender decision that the Minister of Justice was called upon to make. This difference was understood by the Minister of Justice.
c) Did the Minister of Justice commit a jurisdictional error?
30Horvath argues that the Canadian offence of “uttering threats” is not an offence listed in the treaty between Canada and Hungary. As a result, the committal for those offences was without jurisdiction.
31I would reject this submission. As set out by Sharpe J.A. in Germany (Federal Republic) v. Schreiber (2006), 2006 6189 (ON CA), 206 C.C.C. (3d) 339 (Ont. C.A.) at para. 55, “it is the appellant’s conduct that must be considered when determining whether the offence with which he is charged is included in the offences listed in the treaty.” Crimes listed in treaties are intended to catch broad categories of conduct.
32The treaty with Hungary provides that extradition may be sought in relation to the offences of “[r]obbery with violence or with menaces” and “[t]hreats by letter or otherwise with intent to extort”. In my view, the Minister did not err in concluding that the conduct alleged by Hungary fell within those broad rubrics and there is no basis upon which this court can properly interfere.
Conclusion
33For these reasons, I would dismiss the appeal and the application for judicial review.
“Paul Rouleau J.A.”
“I agree M.J. Moldaver J.A.”
“I agree J.C. MacPherson J.A.”
