The Minister of Justice of Canada v. Pataki, a.k.a. Harrison [Indexed as: Canada (Attorney General) v. Pataki]

112 O.R. (3d) 715

2012 ONCA 656

Court of Appeal for Ontario,

Goudge, Watt and Hoy JJ.A.

October 2, 2012

Criminal law -- Extradition -- Surrender -- Principles set out in decision of Supreme Court of Canada in Németh v. Canada not applying to minister's surrender decision where person sought is not refugee.

The applicant was a dual Canadian and Hungarian citizen. He had never had refugee status. Hungary sought his extradition to stand trial on charges of fraud. The applicant was committed for extradition and the Minister of Justice ordered his surrender. The minister rejected his argument that his surrender would be unjust or oppressive within the meaning of s. 44(1)(a) of the Extradition Act, S.C. 1999, c. 18 because he would not get a fair trial in Hungary. After the release of the Supreme Court of Canada's decision in Németh v. Canada, the applicant asked the minister to reconsider his decision. The minister confirmed his original decision. The applicant appealed the committal order and applied for judicial review of the surrender order. [page716]

Held, the appeal and application should be dismissed.

The extradition judge committed no errors.

Németh, which provides that a person's refugee status establishes that s. 44(1)(b) of the Act applies and that surrender must be refused unless the minister demonstrates on a balance of probabilities that those circumstances no longer exist and that the person is no longer entitled to protection, did not apply to the minister's surrender decision in this case. Németh does not affect the onus on a non-refugee or what the non-refugee must prove.

The minister did not err in finding that the applicant's unconditional surrender was not unjust or oppressive under s. 44(1) of the Act.

APPEAL from the committal order of Thorburn J., [2010] O.J. No. 2061, 2010 ONSC 2663 (S.C.J.); APPLICATION for judicial review of the surrender order of the Minister of Justice and Attorney General of Canada dated November 10, 2010.

Cases referred to Németh v. Canada (Justice), [2010] 3 S.C.R. 281, [2010] S.C.J. No. 56, 2010 SCC 56, 221 C.R.R. (2d) 6, EYB 2010-182579, 408 N.R. 198, 11 Admin L.R. (5th) 159, 91 Imm. L.R. (3d) 165, 2010EXP-3890, J.E. 2010-2098, 263 C.C.C. (3d) 434, 328 D.L.R. (4th) 431, distd Other cases referred to Gavrila v. Canada (Justice), [2010] 3 S.C.R. 342, [2010] S.C.J. No. 57, 2010 SCC 57, 221 C.R.R. (2d) 1, EYB 2010-182580, 408 N.R. 273, 2010EXP-3889, 264 C.C.C. (3d) 305, J.E. 2010-2097, [2011] 2 W.W.R. 581, 328 D.L.R. (4th) 482; Slovenia v. Soba, [2011] O.J. No. 1109, 2011 ONCA 206 [Leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 177]; United States of Mexico v. Hurley (1997), 1997 CanLII 3355 (ON CA), 35 O.R. (3d) 481, [1997] O.J. No. 2487, 101 O.A.C. 121, 116 C.C.C. (3d) 414, 8 C.R. (5th) 354, 45 C.R.R. (2d) 73, 35 W.C.B. (2d) 222 (C.A.) Statutes referred to Extradition Act, S.C. 1999, c. 18, s. 44, (1)(a), (b) Immigration and Refugee Protection Act, S.C. 2001, c. 27 [as am.] Treaties and conventions referred to Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6

Paul Slansky, for appellant. Moiz Rahman and Monika Rahman, for respondents.

[1] BY THE COURT: -- Jozsef Pataki was born in Hungary on October 5, 1953. He is Jewish. He is a dual Canadian and Hungarian citizen. He did not come to Canada as a refugee and has never had refugee status.

[2] Hungary seeks to extradite him to stand trial in Hungary on two counts of fraud.

[3] On April 28, 2010, he was committed for extradition by a judge of the Superior Court of Justice. The Minister of Justice subsequently ordered his surrender for extradition. He appeals his committal and seeks judicial review of the minister's order. [page717]

The Appeal

[4] Mr. Pataki raises three issues in attacking the committal order.

[5] First, he says that the extradition judge did not properly assess the reliability of the evidence in the record of the case (the "ROC"). We do not agree. The extradition judge clearly understood that she could reject evidence found manifestly unreliable and that the appellant was not required to undermine the reliability of the entire ROC. As to certain "unsourced" statements in the ROC, while the extradition judge did not make a finding of unreliability, in our view, she assessed the evidence by considering only "sourced" statements. To the extent the extradition judge considered the transcript evidence in the ROC, she did not err. Read as a whole, there is no basis for finding it manifestly unreliable.

[6] Second, the appellant says that the extradition judge erred in declining to admit certain defence evidence about whether or not there was another individual with the same name as the appellant. Again, we do not agree. The extradition judge determined that this was simply proper exculpatory evidence for the trial itself, since it was an attempt to counter the identification evidence in the ROC, not demonstrate its manifest unreliability.

[7] Third, the appellant argues that there was insufficient evidence to support the committal order. Once again, we do not agree. There was ample evidence to support the inference that it was the appellant who purchased the oil in question without intending to pay for it and thus evidence upon which a properly instructed jury could convict him of fraud.

[8] The appeal of the committal order is dismissed.

The Judicial Review

[9] On November 10, 2010, the Minister of Justice ordered Mr. Pataki's unconditional surrender for extradition. The minister rejected his argument that his surrender would be unjust or oppressive within the meaning of s. 44(1)(a) of the Extradition Act, S.C. 1999, c. 18 (the "Act") because he will not get a fair trial in Hungary, particularly due to the lack of respect for the rule of law and significant anti-Semitism. The minister also rejected his submission that the minister should require assurances from Hungary that Mr. Pataki would not be prosecuted for an offence other than those for which he is extradited (the rule of speciality) and that he would be granted bail pending trial. In making this decision, the minister took his legal guidance from [page718] United States of Mexico v. Hurley (1997), 1997 CanLII 3355 (ON CA), 35 O.R. (3d) 481, [1997] O.J. No. 2487 (C.A.).

[10] On January 27, 2011, Mr. Pataki requested that the minister reconsider his decision. His primary argument was that the decision of the Supreme Court of Canada in Németh v. Canada (Justice), [2010] 3 S.C.R. 281, [2010] S.C.J. No. 56, 2010 SCC 56 changed the law by which the minister must be guided in deciding whether to order Mr. Pataki's surrender. He also reiterated his original arguments against surrender.

[11] On October 20, 2011, the minister rejected these submissions and confirmed his original decision.

[12] Mr. Pataki now seeks judicial review of both ministerial decisions.

[13] We turn first to the legal arguments raised by Mr. Pataki arising from Németh. While the minister exercises his discretion to decide whether to order surrender of an individual for extradition, that discretion is not unfettered. It must be exercised according to law. The minister purported to do so here, but declined to apply the legal principles set out in Németh.

[14] There is no doubt that if Németh sets out legal principles that the minister was required to follow in ordering Mr. Pataki's surrender, a failure to do so is a legal error that renders the minister's decision unreasonable and requires that it be set aside: Gavrila v. Canada (Justice), [2010] 3 S.C.R. 342, [2010] S.C.J. No. 57, 2010 SCC 57, at para. 11. Mr. Pataki says that is what happened here.

[15] The facts in Németh are straightforward but important. Mr. and Mrs. Németh, a couple of Roma ethnic origin, arrived in Canada in 2001. They applied for refugee status, alleging that acts of violence had been committed against them in Hungary, their country of origin. In 2002, they were granted refugee status by Canada. Years later, Hungary sought to extradite them both. They were committed for extradition by the Superior Court of Quebec. The minister subsequently ordered their surrender for extradition. He declined to give effect to their fear of persecution should they be returned to Hungary.

[16] Section 44(1) of the Act is the relevant provision for individuals fearing persecution after extradition. Where it applies, the minister must refuse surrender. It reads as follows:

When order not to be made

44(1) The Minister shall refuse to make a surrender order if the Minister is satisfied that (a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or [page719] (b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person's position may be prejudiced for any of those reasons.

[17] The question in Németh concerned the application of s. 44(1)(b) where the minister is deciding whether to surrender a person with refugee status that has not ceased or been revoked: Németh, at paras. 9 and 59.

[18] The court answered that question by relying in significant measure on the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, which Canada has ratified. It speaks to Canada's obligations to those with refugee status, not to Canada's obligations to its citizens. It is those with refugee status to whom Canada owes its international and domestic obligations not to return them to face the persecution from which they fled.

[19] The court also looked for support by analogy to those provisions in the Immigration and Refugee Protection Act, S.C. 2001, c. 27, under which refugee status can cease where the minister can demonstrate that the circumstances upon which it was granted no longer exist. Both these provisions deal with an individual who has refugee status.

[20] Based on these considerations, the court concluded that where the minister's decision concerns a person with refugee status in Canada and the requesting state is the one from which that person has been granted protection, that person does not have the onus of showing that the circumstances giving rise to the conferring of refugee status continue to exist. Rather, the person's refugee status establishes that s. 44(1)(b) applies and surrender must be refused, absent the minister meeting his burden of demonstrating on a balance of probabilities that those circumstances no longer exist and that the individual is no longer entitled to protection.

[21] In other words, the court addressed both the onus and the standard of proof for a person with refugee status. The balance of probabilities onus is now on the minister and the standard the minister must meet is that the circumstances justifying refugee status no longer exist and that the individual is no longer entitled to protection.

[22] All this deals only with a person with refugee status. Németh does not affect the onus on a non refugee or what the non refugee must prove. That is, it does not alter the burden that a non refugee must meet. The court made this explicit, at para. 113: [page720]

Nothing I have said affects the burden on a person who has not been granted refugee status who relies on mandatory grounds of refusal of surrender under s. 44.

[23] In Gavrila, at para. 11, Cromwell J., speaking for the court, confirmed that Németh sets out the legal principles that apply where, at the time the surrender decision is made, the individual's refugee status has not ceased or been revoked.

[24] This court reached the same conclusion in Slovenia v. Soba, [2011] O.J. No. 1109, 2011 ONCA 206, leave to appeal refused [2011] S.C.C.A. No. 177, where it accepted the Crown's argument that Németh changed the law but only as it applies to certified Convention refugees.

[25] Mr. Pataki is a Canadian citizen. He has never had refugee status. We therefore reject his argument that Németh changed the legal principles that must guide the minister in deciding upon his surrender for extradition.

[26] Rather, we conclude that the minister acted correctly in concluding that Németh did not change the onus of proof and standard of proof that he was to apply to a non refugee.

[27] Mr. Pataki also argues that the minister erred in finding that his unconditional surrender was not unjust or oppressive under s. 44(1) of the Act.

[28] We cannot accede to this argument. The minister's decision that Mr. Pataki's surrender would not be unjust or oppressive must be accorded substantial deference in this court. We see no basis for concluding that it was unreasonable. There was ample material before the minister to support his conclusion that Mr. Pataki had not met his onus to show that he will not get a fair trial in Hungary so as to render his surrender unjust or oppressive.

[29] Nor was the minister unreasonable in concluding that Mr. Pataki's surrender should be unconditional. Mr. Pataki established no basis for asserting that Hungary would violate the rule of speciality should he be returned. Moreover, it was open to the minister to find that an assurance requiring bail was unnecessary in light of Hungary's functioning bail system.

[30] For these reasons, we conclude that Mr. Pataki's application for judicial review must be dismissed.

Appeal and application dismissed.