COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., MacPherson and Cronk JJ.A.
BETWEEN
Karlheinz Schreiber
Applicant (Respondent)
and
The Minister of Justice
Respondent (Applicant)
Edward L. Greenspan Q.C. and Vanessa V. Christie, for the applicant, Karlheinz Schreiber
Nancy Dennison and Richard Kramer, for the respondent, the Minister of Justice
July 10, 2009
(1) Introduction
1This is the fifth application before this court by the moving party, Karlheinz Schreiber, for relief styled in the nature of judicial review of a “decision” by the Minister of Justice (the “Minister”) concerning an order to surrender Mr. Schreiber to the Federal Republic of Germany signed by the Minister on October 31, 2004. In this instance, by notice of application filed on June 2, 2009, Mr. Schreiber applies under s. 57 of the Extradition Act, S.C. 1999, c. 18 for relief in respect of the surrender order. Each of his four earlier applications for judicial review was dismissed by this court. Leave to appeal to the Supreme Court of Canada in respect of those dismissals was ultimately denied.
2The background to Mr. Schreiber’s current application is straightforward. On October 17, 2008 and again on April 20, 2009, Mr. Schreiber made further submissions to the Minister concerning the surrender order. Mr. Schreiber’s counsel followed-up on those submissions in subsequent correspondence to the Minister dated May 14, 2009 and May 25, 2009. Receipt of those communications was acknowledged on behalf of the Minister.
3Against this backdrop, Mr. Schreiber’s application has two components. First, he argues that the Minister has failed to respond to the submissions made on April 20, 2009 and that his failure to do so, viewed in the context of the Minister’s alleged earlier actions in October 2007 involving an attempt to remove Mr. Schreiber from Canada, establish that the Minister “has no intention of considering [Mr. Schreiber’s] further submissions”. This, Mr. Schreiber says, constitutes a violation of his right under s. 7 of the Canadian Charter of Rights and Freedoms to security of the person. Alternatively, Mr. Schreiber contends that the Minister’s actions provide a clear indication that the Minister has already rejected Mr. Schreiber’s further submissions and that he “has no intention of informing [Mr. Schreiber] of this before removing him from Canada”. In these circumstances, Mr. Schreiber maintains that this court should direct the Minister “to properly consider [his] submissions in accordance with the Minister’s obligations under the Extradition Act and the Charter”.
4As argued before us, the second component of Mr. Schreiber’s application involves a request for interim relief of short duration – 48 hours – concerning the surrender order. Given the background to this matter, above-outlined, Mr. Schreiber argues that if this court concludes that the Minister is still considering Mr. Schreiber’s further submissions, an order should issue that Mr. Schreiber not be surrendered for at least 48 hours following his receipt of the Minister’s response to those submissions, to allow Mr. Schreiber time to consider the response and any possible legal remedies then available to him under the Extradition Act.
5The Minister, in turn, moves for an order quashing Mr. Schreiber’s application on three grounds. First, the Minister argues that the application is a nullity as no “decision” has been made by the Minister that is susceptible to judicial review. Next, the Minister submits that there is no legal requirement that a response to Mr. Schreiber’s further submissions be delivered within a fixed time frame. Indeed, the Minister contends that he was not obliged to even receive the further submissions since they were provided outside the statutory time lines provided for under the Extradition Act. Thus, Mr. Schreiber has no legal right to any response from the Minister, let alone a response by a set date. Finally, the Minister argues that Mr. Schreiber is not entitled to what the Minister says is, in effect, a stay of the surrender order in this case, on any of the grounds advanced by Mr. Schreiber on this application. The Minister emphasizes that the focus of this application is ss. 57 and 62 of the Extradition Act.
(2) Discussion
6We agree that the record on this application does not support Mr. Schreiber’s claim that the Minister’s failure, to date, to respond to his further submissions reflects a decision never to respond to those submissions. Nor does it support the contention that the Minister has already rejected those submissions without informing Mr. Schreiber of the fact of that rejection.
7Indeed, the record before us suggests the opposite. By letter dated May 14, 2009, counsel on behalf of the Minister wrote to Mr. Schreiber’s counsel, acknowledging that Mr. Schreiber’s correspondence was with the Minister and indicating that “a response will be provided in due course”.
8Then, on June 5, 2009, the Minister wrote personally to Mr. Schreiber’s counsel, expressly informing him that the correspondence in question “is still under consider-ation”.
9Also in his June 5 letter, the Minister advised that Mr. Schreiber would not be surrendered “before the conclusion of the hearings in relation to Part II (Policy Review) of the Oliphant Commission”. This commitment was reiterated by the Minister in subsequent correspondence to Mr. Schreiber’s counsel dated June 26, 2009. In his June 26 letter, the Minister also set out his understanding that the hearings component of Phase II of the Oliphant Royal Commission is scheduled to end on either July 28 or July 29, 2009.
10Thereafter, in a letter to Mr. Schreiber’s counsel dated July 2, 2009, the Minister indicated in part:
[W]ith respect to all your outstanding correspondence, you have been advised that I will reply in due course. Pursuant to the Extradition Act, as the Minister of Justice of Canada, I am tasked with determining whether, when and how to respond to submissions made outside the statutory deadline.
11The Minister added that he would not be responding to any existing or future submissions made on behalf of Mr. Schreiber until Mr. Schreiber’s pending application was dealt with by this court.
12Based on this correspondence, it is clear that the Minister has given an unqualified commitment to Mr. Schreiber’s counsel to respond to Mr. Schreiber’s further sub-missions, regardless of whether the Minister is legally obliged to do so. There is no reason on this record to doubt that the Minister will honour his written commitment.
13In the same correspondence, the Minister or his counsel confirmed that Mr. Schreiber’s further submissions are under consideration. Nothing on this record affords any evidence to the contrary.
14Thus, there is no evidential support for Mr. Schreiber’s contention that the Minister has failed to consider or already rejected Mr. Schreiber’s further submissions. Accordingly, at present, there is no Ministerial “decision” that is judicially reviewable.
15In these circumstances, neither s. 57 nor s. 62 of the Extradition Act is engaged. As relevant to the proceeding before us, the application of those provisions is conditional on the existence of a pending judicial review application. No such application is properly before us.
16We also reject the proposition that the Minister is obliged under the Extradition Act to respond to late submissions delivered by Mr. Schreiber within a fixed time frame. Section 43(1) of the Act, which permits the delivery of submissions to the Minister at any time before the expiry of 30 days after the date of a committal order, has no application here. Thirty days from the date of Mr. Schreiber’s committal order expired years ago.
17We recognize that the Minister is authorized under s. 43(2) of the Act, in the exercise of his discretion, to accept submissions even after the expiry of the 30-day period contemplated by s. 43(1) “in circumstances that the Minister considers appropriate”.
18In this case, the Minister was not obliged to accept Mr. Schreiber’s further late submissions. Nonetheless, as he has done on several past occasions, the Minister chose to accept receipt of those submissions. In addition, in this instance, he has also expressly agreed to respond to them. Nothing in s. 43 of the Act obliges the Minister to do so by a set date. Having agreed to respond to Mr. Schreiber’s submissions, in the absence of any evidence to the contrary, it must be presumed that the Minister’s response will accord with Mr. Schreiber’s statutory and Charter rights.
19In these circumstances, we conclude that the Minister’s motion to quash must be granted.
(3) Disposition
20Accordingly, the Minister’s motion to quash is granted and Mr. Schreiber’s application is dismissed.
RELEASED:
“JUL 10 2009” “Dennis O’Connor A.C.J.O.”
“DOC” “J.C. MacPherson J.A.”
“E.A. Cronk J.A.”