United States of America v. Collins, 2008 ONCA 72

E N D O R S E M E N T

1The appellant appeals against the order committing him to extradition and seeks judicial review of the Minister’s order of surrender.

The appeal against committal for extradition

2On the appeal against committal, we agree with the motion judge that the Authority to Proceed meets the requirements of s. 15(3) of the Extradition Act, S.C. 1999, c. 18. Read in conjunction with the Record of the Case, the Authority to Proceed gives the appellant notice of the case to be met.

3We also agree with the motion judge that the record of the case is confusing and arguably permits several different theories of how the offences may have been carried out. Nevertheless, we are satisfied that the motion judge did not err in his conclusion that the respondent has met its burden under the Act, as interpreted by this court in United States of America v. Manningham (2004), 183 C.C.C. (3d) 133 at paras. 44–49 (Ont. C.A.), and United States of America v. Saad (2004), 183 C.C.C. (3d) 97 at para. 18 (Ont. C.A.).

4For both counts there is evidence that the client monies in question came under the appellant’s control and did not get paid out to or for the benefit of his clients. That, together with other surrounding circumstances such as forged signatures on relevant cheques and other documents, was sufficient to create a prima facie case. Although the extradition judge did not have the benefit of the Supreme Court of Canada decision in United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77, we are satisfied that its refinement of the test set down in United States of America v. Shephard, [1977] 2 S.C.R. 1067, would not have affected the outcome of this case. The appeal against committal is therefore dismissed.

The application for judicial review of the Minister’s surrender order

5In our view, the Minister’s surrender decision was reasonable: see United States of America v. Lake (2006), 212 C.C.C. (3d) 51 at para. 22 (Ont. C.A.). He considered both cumulatively and individually all of the issues that were raised by the applicant.

6Regarding the serious issue of potential sexual assault in jail in Texas, the Minister investigated the concern that the applicant raised regarding Texas prisons and received information that the state has implemented a “safe prisons” program and a zero-tolerance policy for sexual assault in the Texas prison system. In our view, the Minister acted reasonably in relying on this information to meet the concerns raised by the applicant.

7Paragraph 12 of the Minister’s letter makes it clear that contrary to the submission of the applicant, he gave separate consideration to his duties under s. 44(1)(a) of the Extradition Act and the factors provided by that section, as well as s. 7 of the Charter.

8Regarding the delay by the extradition partner, the Minister considered the issue and exercised his discretion that no effect be given to that delay. He stated that he took into account s. 11(b) Charter values as well as any prejudice to the applicant, and also considered the applicant’s early knowledge of the U.S. charges. The Minister was entitled to exercise his discretion as he did.

9In his able argument, Mr. Norris also submitted that the Minister did not give full consideration to several other grounds the applicant raised in his submissions to the Minister. In support of his request that he not be surrendered, the applicant directed the Minister to the many positive aspects of his life in Canada, his contributions to his community, and his good character. However, the Minister considered each of these in his decision and ultimately determined that the appellant be surrendered. We see no basis to interfere with this decision.

10The application for judicial review of the surrender decision is also dismissed.

Signed: “K. Feldman J.A.”