COURT OF APPEAL FOR ONTARIO
DATE: 20210622 DOCKET: C68423
Simmons, Watt and Roberts JJ.A.
BETWEEN
The Attorney General of Canada on behalf of the United States of America Respondent
and
Brady John Hillis Applicant
Counsel: Seth P. Weinstein and Michelle Biddulph, for the applicant Adrienne Rice, for the respondent
Heard: October 2, 2020 by video conference
On judicial review of the order of surrender of the Minister of Justice, dated May 12, 2020.
Watt J.A.:
[1] One evening in June about three years ago, Brady John Hillis (the applicant) was at the Fortune Bay Resort and Casino in Minnesota. There, within an hour, he is alleged to have inappropriately touched three girls, aged 7, 9 and 12.
[2] The alleged offences were reported to security staff at the casino. Later, an investigation was undertaken by federal authorities in the United States. The applicant was released and allowed to return to Canada.
[3] The United States has decided to seek the applicant’s extradition so that he can be prosecuted in Minnesota on federal charges. A warrant was issued for the applicant’s arrest. He was arrested and later released from custody on a recognizance.
[4] After an application to stay proceedings failed, the applicant consented to committal. A judge of the Superior Court of Justice ordered the applicant’s committal. A few months later, the Minister of Justice ordered the applicant’s surrender for extradition.
[5] The applicant asks us to quash the surrender order of the Minister. In the alternative, he asks us to quash the order and remit the matter to the Minister to consider whether the applicant ought to be surrendered on the condition that he not be prosecuted for offences that could lead to a mandatory minimum sentence. These reasons explain why I would decline to quash the order or remit the matter to the Minister.
The Background
[6] A brief history of the proceedings will provide the background necessary to place the claims of error in their appropriate setting.
The Principals
[7] The applicant is a 32-year-old Canadian citizen. At the time of the alleged offences, he was employed as an Ontario Provincial Police officer, and he was a guest at the Fortune Bay Resort and Casino on the Bois Forte Indian Reservation in the State of Minnesota.
[8] Each of the complainants were also guests at the resort, as were their parents. They were aged 7, 9 and 12 when the offences were alleged to have occurred.
The Allegations
[9] In the Record of the Case and in the indictment handed down by the grand jury in the United States District Court, District of Minnesota, each complainant is described as Jane Doe, followed by a number.
[10] Jane Doe 1, an enrolled member of the Bois Forte Band of Chippewa, alleged that the applicant offered her money if she would let him touch her “bum”. He rubbed his hand over her clothed buttocks a couple of times and up her right leg. This occurred in the arcade at the resort. She reported the incident to her parents after quickly walking out of the arcade. Jane Doe was 9 years old.
[11] Jane Doe 2, an enrolled member of the Leech Lake Band of Ojibwe, alleged that while she was in the kiddie pool at the resort, the applicant asked her to come over to where he was sitting at the edge of the pool. He asked her some questions, then put his arm under the water and slid his hand under the leg portion of her swimsuit. He touched her “private part” with his fingers. He asked whether she liked the touch. Jane Doe 2 said “no”. The applicant said he would “make it feel good”. Jane Doe 2 tried to move away but the applicant pulled her back, then put his hand under the top part of her two-piece swimsuit and touched her breast area with his hand.
[12] Jane Doe 2 told her other siblings, who then told her foster parents. Her foster parents and siblings contacted security at the resort. Law enforcement was called. Jane Doe 2 was 7 years old.
[13] Jane Doe 3 was in the swimming pool at the resort with a friend. The applicant was swimming close to them. Jane Doe 3 and her friend decided to race each other to the other end of the pool. As she dove down, Jane Doe 3 felt someone touch or rub her buttocks. The applicant made a moaning sound. Jane Doe 3 asked her friend whether she (the friend) had touched her (Jane Doe 3’s) buttocks. The friend said she did not. Jane Doe 3 told her mother about the incident as they were leaving the resort later that evening, but neither she nor her mother reported it to law enforcement that day. Jane Doe 3 was 12 years old.
The Investigation
[14] The incidents were reported first to resort security. Local law enforcement was notified. Eventually, the Federal Bureau of Investigation took over. The applicant was released and permitted to return to Canada. He immediately reported the incident to his superiors at the Ontario Provincial Police.
The Extradition Proceedings
[15] By a Diplomatic Note sent about two months after the alleged offences, the United States sought the extradition of the applicant to stand trial on a three-count indictment handed down by a grand jury in the United States District Court in the District of Minnesota one month earlier. The indictment contained two counts of abusive sexual contact with a child under 12 and a single count of aggravated sexual abuse of a child under 12.
[16] Two days later, senior counsel with the International Assistance Group for the Minister of Justice of Canada issued an Authority to Proceed under s. 15 of the Extradition Act, S.C. 1999, c. 18 (the “Act”) on behalf of the Minister of Justice. The corresponding domestic equivalent offence is sexual interference under s. 151 of the Criminal Code, R.S.C. 1985, c. C-46.
The Application to Stay Proceedings
[17] Prior to the committal hearing, the applicant applied to a judge of the Superior Court of Justice for an order staying the extradition proceedings on the ground that they constituted an abuse of process. The application was resisted by the Attorney General of Canada on behalf of the extradition partner on the ground that there was no basis on which to conclude an abuse of process had occurred.
[18] The application judge concluded that he had no jurisdiction to grant the remedy sought. He dismissed the application.
The Committal Hearing
[19] With the applicant’s consent, the presiding judge ordered the applicant’s committal.
The Ministerial Phase
[20] The Minister of Justice received written submissions from counsel for the applicant on two occasions. The Minister sought and obtained information from the United States Department of Justice about the available and likely sentences, including the prospect and consequences of both federal and state civil commitment proceedings. He also sought and obtained an opinion from the Attorney General for Ontario about the sentence likely to be imposed were the applicant to be tried in Canada for the Canadian equivalent offence of sexual interference.
[21] The Minister also had access to the Record of the Case, four Supplementary Summaries of the Case and assurances from the United States Department of Justice that no federal civil commitment proceedings would be taken against the applicant if he were extradited to the United States to stand trial on the federal indictment in Minnesota.
The Surrender Decision
[22] On May 12, 2020, the Minister advised counsel for the applicant that he ordered the applicant’s surrender. The order was subject to the condition that the applicant be deported at the conclusion of his criminal proceedings in the United States. The Minister relied on the assurance that the applicant would not be subject to any form of civil commitment as undertaken by the United States Department of Justice. An order of surrender was issued.
The Application for Judicial Review
[23] The applicant invokes ss. 57(1) and (7) of the Act. He asks that we quash the surrender order of the Minister on the ground that it is unreasonable, the result of flawed legal analysis and inadequate consideration of applicable precedent.
[24] The overarching submission of unreasonableness in the Minister’s decision to order surrender includes several discrete complaints of legal error. To better understand the applicant’s grievances, some more background is helpful.
The Offences Charged
[25] The indictment on which the United States proposes to try the applicant contains three counts. Two counts allege abusive sexual contact with a child under 12 years of age. The third alleges aggravated sexual abuse of a child under 12 years of age. As the description of the offences would suggest, the count of aggravated sexual abuse alleges a more serious offence than the counts of abusive sexual contact.
The Likely Sentencing Ranges on Conviction
[26] The offence of abusive sexual contact does not attract a minimum sentence. The maximum sentence that can be imposed on conviction is imprisonment for life. The statutory sentence on conviction of aggravated sexual abuse is imprisonment for not less than 30 years, nor more than life.
[27] According to the United States Department of Justice, the potential sentence the applicant would receive if convicted would depend on various factors, including the nature of the offences of which he is convicted. For multiple convictions, the sentences could be ordered to be served consecutively, although they are presumed to be concurrent. A plea agreement involving counts that do not trigger the 30-year minimum sentence could reduce the period of imprisonment.
[28] The United States Department of Justice explained that, irrespective of the application of a statutory minimum sentence, the sentencing court, with the benefit of a pre-sentence report, must also consider the relevant sentencing guidelines. The guidelines are discretionary, not mandatory. If the applicant is convicted at trial, the likely range of sentence would extend from 30 years to imprisonment for life. Alternatively, depending on the nature of the convictions or any plea agreement, the guidelines range could be as low as 51 to 63 months without a mandatory term of imprisonment.
[29] In a statutory declaration, the applicant’s United States counsel agrees with the United States Department of Justice that it is difficult to predict a sentence if convictions were entered on the counts of abusive sexual conduct. He also agrees that the United States Department of Justice fairly represented the likely advisory sentencing guideline sentence. No settlement negotiations have taken place. A United States Department of Justice memo on charging and sentencing directs federal prosecutors to pursue mandatory minimum sentences and requires supervisory approval to depart from sentencing guidelines or mandatory minimum sentences, once charged.
Federal Civil Commitment
[30] According to the United States Department of Justice, the applicant could be subject to federal civil commitment based on the charges included in the indictment. But whether federal civil commitment would occur is subject to myriad factual and time-specific circumstances that are extremely difficult to predict at this early stage of proceedings.
[31] Proceedings for federal civil commitment begin when the United States Bureau of Prisons Certification Review Panel certifies to a federal district judge that a federal prisoner (1) previously “engaged or attempted to engage in sexually violent conduct or child molestation”, (2) currently “suffers from a serious mental illness, abnormality, or disorder”, and (3) “as a result of” that illness, abnormality or disorder is “sexually dangerous to others.” This certification stays the prisoner’s release from custody. This stay permits the United States Government to prove its claims in a court hearing before a judge of the federal district court. With or without the assistance of a psychiatric or psychological evaluation, the Government is required to prove “by clear and convincing evidence” that the prisoner is a “sexually dangerous person”.
[32] If the United States Government proves that a person is a “sexually dangerous person”, the prisoner is committed to the custody of the Attorney General, who may order the prisoner’s release to a state willing to assume responsibility for the prisoner’s custody, care and treatment. Or the Attorney General may put the committed prisoner in a facility for treatment until a state will assume responsibility for the prisoner, or the prisoner’s condition improves to the point where they can be safely released. During the civil commitment, the facility director submits annual reports and makes recommendations about the need for continued commitment. Where the facility director certifies that the prisoner is no longer sexually dangerous to others or will not be sexually dangerous to others if released under a prescribed regimen, the court that ordered the commitment must either discharge the prisoner or hold a hearing to determine whether and on what conditions the prisoner should be released.
[33] The Minister sought assurances from the United States Department of Justice that, if extradited, the applicant would not face civil commitment. The Criminal Division of the United States Department of Justice provided an assurance that it would waive the possibility of seeking civil commitment of the applicant as a sexually dangerous person. On completion of sentence imposed on conviction, or on acquittal, the applicant would not be in state custody. He would immediately be placed in federal deportation proceedings, which have priority over any state proceedings for civil commitment. Alternatively, if all statutory and treaty conditions have been met, the United States Department of Justice would not object to a request by Canada or the applicant that he be transferred to serve the balance of his sentence in Canada, if made within two years before the completion of his sentence.
State Civil Commitment
[34] The State of Minnesota also has a civil commitment procedure. The procedure may be invoked by a county attorney filing a petition in state district court against a convicted person in federal custody. State civil commitment requires proof by clear and convincing evidence that the prisoner is a “sexually dangerous person” or has a “sexually psychopathic personality” as defined in the applicable state legislation. The state may have jurisdiction over a person for these purposes if a county in the state is financially responsible for the person or if the person is incarcerated or present in the county.
[35] The United States Department of Justice advised the Minister that although the applicant may be subject to state civil commitment based on the charges in the indictment, whether civil commitment could take place is subject to many factual and time-specific circumstances that are extremely difficult to predict in this incipient stage of the proceedings.
[36] The United States Department of Justice opined that the State of Minnesota may not have jurisdiction to civilly commit the applicant. This is because the applicant is not a resident of or incarcerated in Minnesota, nor is any county in the state financially responsible for him. Further, the state may decline to exercise jurisdiction for a variety of reasons. Cost. Limitations under state law. The fact that states do not routinely monitor federal prisoners. The prospect that a federal prisoner may be transferred to another federal prison outside of Minnesota rendering the state commitment order non-executable. The fact that the United States federal government already has an effective system in place. And the fact that states strongly support the federal assumption of responsibility in this aspect of corrections.
[37] The applicant’s United States counsel describes the Minnesota sex offender civil commitment scheme as one of the most aggressive and far-reaching in the United States. The legal standards are distinctly vague and broad. They confine people for indeterminate periods based on predictions of future dangerousness. Prior convictions are not required, although most commitments occur after conviction and completion of imposed sentences. The decision to file a petition for civil commitment is made by the State of Minnesota, not the United States.
[38] If the applicant is convicted and sentenced to a term of imprisonment, the United States Department of Justice points out, he will serve his sentence in a United States Bureau of Prisons facility. This facility could be anywhere in the United States. As someone convicted of aggravated felonies, the applicant would have no immigration status and would be deportable. United States Immigration and Customs Enforcement (“ICE”) would process an administrative removal order prior to the applicant’s release date. This would result in a detainer for deportation. The applicant would go directly from Bureau of Prisons custody to ICE custody for deportation to Canada, without serious threat of civil commitment by federal or state authorities.
Sentencing for the Domestic Equivalent Offence
[39] The domestic equivalent offence to those charged in the United States District Court indictment in Minnesota is specified in the Authority to Proceed as sexual interference. This offence may be prosecuted by summary conviction or on indictment. The maximum sentence when prosecuted by indictment is imprisonment for a term of 14 years. The mandatory minimum sentence of one year has been struck down as cruel and unusual punishment under s. 12 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[40] The Minister solicited and received from the Attorney General for Ontario an estimate of the range of sentence likely to be imposed on the applicant if he were prosecuted in Ontario and convicted of sexual interference on all three counts. The range of sentence suggested was 90 days to 3 years. Statutory aggravating factors include the age of the complainants, itself an essential element of the offence of sexual interference, and the fact that what was involved was abuse of a person under 18. The Attorney General for Ontario also noted the potential impact of the principles in s. 718.2(e) of the Criminal Code and R. v. Gladue, [1999] 1 S.C.R. 688 if the applicant identified as Aboriginal.
The Reasons of the Minister
[41] The Minister considered whether, in all the circumstances, the applicant’s surrender would be unjust or oppressive or otherwise contrary to s. 7 of the Charter. Since the applicant could be prosecuted in Canada for the offences on which he has been indicted in Minnesota, with the consent of the appropriate attorney general, the Minister examined whether the decision to prefer extradition over domestic prosecution infringed the applicant’s mobility rights under s. 6(1) of the Charter. The Minister also acknowledged his authority to refuse surrender where there were compelling grounds to do so. He accepted that he could refuse surrender even where no Charter breach was established and was required to consider the direct and indirect potential consequences of the surrender, such as the punishment or treatment reasonably anticipated in the extradition partner’s jurisdiction.
[42] In responding to a submission that the applicant would face indefinite civil commitment if surrendered, the Minister examined three issues:
i. whether the applicant faces a real risk of state or federal civil commitment if surrendered;
ii. if such a risk exists, whether ordering surrender would violate s. 7 of the Charter or be unjust or oppressive under s. 44(1)(a) of the Act; and
iii. if extradition to face a real risk of civil commitment is barred by s. 7 of the Charter or s. 44(1)(a) of the Act, whether an assurance from the United States that no petition for civil commitment will be made in this case is required.
[43] After briefly describing the assurance provided by the United States Department of Justice on behalf of the Government, the Minister concluded that the assurance was reliable, so that ordering the applicant’s surrender would not be unjust or oppressive or contrary to s. 7 of the Charter:
I am of the view that the assurance provided by the United States is reliable. The United States is a trusted treaty partner and I am entitled to rely on its undertakings (Gervasoni v Canada (Minister of Justice) (1996), 72 BCAC 141). There is nothing in the record before me to suggest that the United States does not have the capacity to fulfill its assurance or that it is providing it in bad faith. It should not be lightly assumed that a foreign country would not act in good faith in complying with an assurance (Argentina v Mellino, [1987] 1 SCR 536).
The assurance from the United States addresses the risk that Mr. Hillis will face civil commitment in the United States and renders the remaining Carroll issues [the issues the Minister was considering] moot. Accordingly, I conclude that ordering Mr. Hillis’ surrender, in the face of such an assurance, would not be unjust or oppressive, or contrary to section 7 of the Charter.
[44] The Minister rejected the submission that the prospect of civil commitment on surrender violates the principle of double criminality due to a reduced standard of proof and the absence of an equivalent Canadian offence. The principle of double criminality, expressed in s. 3(1)(b) of the Act, is that Canada should not extradite a person to face punishment in another country for conduct that would not be criminal in Canada. The Minister said he was satisfied that the United States was not seeking the applicant’s surrender for the purpose of civil commitment. The purpose of the extradition request and extradition was to prosecute the applicant for the federal offences alleged in the indictment. A judge decided there was sufficient evidence to commit the applicant for extradition. The double criminality requirement was met based on the Canadian equivalent offence of sexual interference. In addition, the assurance that the applicant would not face civil commitment on extradition establishes that the extradition is not sought for that purpose.
[45] On the issue of sentence disparity, the Minister noted that, death penalty cases apart, nothing in the relevant treaty — the Treaty on Extradition between the Government of Canada and the Government of the United States of America, 3 December 1971, Can. T.S. 1976 No. 3 (entered into force 22 March 1976), as amended by Protocol Amending the Treaty on Extradition between Canada and the United States of America Signed at Washington on December 3, 1971, as amended by an Exchange of Notes on June 28 and July 9, 1974, 11 January 1988, Can. T.S. 1991 No. 37 (entered into force 26 November 1991) — permits refusal of surrender based on the applicable penalties. Nonetheless, the Minister accepted that there is a significant disparity between the sentence the applicant would face if convicted of all the offences after a trial in the United States and that which he may receive in Canada. The Minister was required to consider whether the applicant’s surrender to face a potentially lengthy sentence in the United States would violate s. 7 of the Charter, shock the Canadian conscience or contravene s. 44(1)(a) of the Act.
[46] The Minister rejected the applicant’s submission based on sentence disparity between the punishment likely imposed on conviction in the United States and that likely on conviction for the equivalent Canadian offence:
Refusing surrender on the basis of the penalty Mr. Hillis may face would mean that the principles of comity and fairness to other cooperating states in rendering mutual assistance in bringing fugitives to justice would not be respected.
Canadian courts have repeatedly found that surrender to face a potentially lengthy mandatory minimum sentence in a Requesting State does not violate section 7 of the Charter. [Citations omitted.]
Specifically, in cases of alleged sexual offences against children, Canadian appellate courts have found that potentially lengthy mandatory minimum sentences do not warrant denying surrender to the United States (United States v Wilcox, 2015 BCCA 39, leave to appeal to SCC refused, [2015] SCCA No 124; United States v K(JH) (2002), 165 CCC (3d) 449 (ONCA), leave to appeal to SCC refused, [2002] SCCA No 501).
Moreover, I must consider Mr. Hillis’ sentencing exposure singly and in combination with other relevant factors, namely, the seriousness of the allegations. As noted by the bail judge, at the time of the alleged offence, Mr. Hillis was an Ontario Provincial Police Officer. The victims are young Indigenous girls, members of a particularly vulnerable population, which has been the subject of staggering rates of violence in Canada. In my view, it would be a very serious offence for an officer sworn to protect and serve such a vulnerable population in Canada, to violate young Indigenous girls at play in a hotel where they are vacationing with their families.
The sentences available in the United States and Canada reflect the importance of deterring the alleged conduct. The fact that Mr. Hillis would face a lesser sentence in Canada, and would not face a mandatory minimum sentence, does not make the allegations against him any less serious.
I am reminded of Burns in which the Supreme Court of Canada held that “individuals who choose to leave Canada leave behind Canadian law and procedures and must generally accept the local law, procedure and punishments which the foreign state applies to its own residents.”
The severity of the American sentence and the disparity between it and a sentence Mr. Hillis would face if prosecuted in Canada is not so extreme or exceptional in the circumstances of this case that surrender would be unjust or oppressive under the Act, or shock the Canadian conscience, or otherwise be contrary to section 7 of the Charter.
Having regard to all of the circumstances, I am of the view that it would not be unjust or oppressive, or contrary to section 7 of the Charter to order Mr. Hillis’ conditional surrender to the United States.
The Arguments on Review
The Applicant’s Arguments
[47] The applicant says that the Minister’s decision to surrender him is unreasonable, the result of flawed reasoning and significant omissions in his analysis.
[48] To begin, the applicant contends, the Minister failed to consider how it would be fair and just to surrender a Canadian citizen to face a minimum of 30 years in prison for offences that Canadian courts have found that a 1-year minimum sentence constitutes cruel and unusual punishment. Further, the Minister failed to properly consider whether exposing a Canadian citizen to a sentence that Canadian courts have identified as cruel and unusual would shock the conscience and offend the Canadian sense of what is fair, right and just. In addition, the Minister glossed over the impact of a finding of unconstitutionality for the mandatory minimum sentence for the Canadian equivalent offence. In essence, the Minister failed to engage with the constitutional issue.
[49] The applicant argues that the protection against cruel and unusual punishment under s. 12 of the Charter is itself a principle of fundamental justice protected by s. 7 of the Charter, which is applicable to surrender decisions. Extradition to face a sentence far in excess of what Canadian courts have found to be cruel and unusual punishment violates s. 7 of the Charter and shocks the Canadian conscience. Where, as here, a decision has particularly harsh consequences for a Canadian citizen, especially where those consequences impinge on a person’s life, liberty, dignity or livelihood, the decision maker must grapple with those consequences. The Minister did not do so here.
[50] The applicant accepts that disparity in potential sentences between United States’ offences and their Canadian equivalent does not generally shock the conscience of Canadians but adds that this general rule is not unyielding. Where, as here, the likely United States sentence is so grossly disproportionate to the gravity of the offence, the circumstances of the accused and the sentence warranted for the Canadian equivalent offence, surrender to face imposition of such a sentence would shock the Canadian conscience.
[51] The standard an applicant is required to meet to establish a breach of s. 12 of the Charter is high. What is required is a finding of gross disproportionality, not that the sentence is merely excessive. Canadian courts have found that the mandatory minimum sentence for sexual interference under s. 151 of the Criminal Code offends s. 12 of the Charter. Although s. 12 does not directly apply in extradition cases, its protection against cruel and unusual punishment is itself a principle of fundamental justice. It follows that surrender to face cruel and unusual punishment amounts to a deprivation of liberty contrary to s. 7 of the Charter. Such surrender shocks the conscience of Canadians and warrants quashing the surrender order.
[52] The applicant accepts that the “shocks the conscience” test only applies where courts have deemed the Canadian punishment to be cruel and unusual in the context of the actual circumstances of the fugitive. Here, where the mandatory minimum under s. 151 has been declared to be cruel and unusual punishment in similar circumstances, the “shocks the conscience” test is met where extradition is sought for a person who will face a much lengthier mandatory minimum sentence in the United States. That the mandatory minimum sentence is not certain does not mitigate or undermine the “shocks the conscience” test.
[53] The reasons of the Minister, the applicant says, are unresponsive to the issues raised. They amount to no more than a generic response to a submission that the applicant’s extradition would infringe s. 7 of the Charter. The Minister relies on authorities decided before Canadian courts reached a consensus on the constitutional infirmity of mandatory minimum sentences. The conclusion was also flawed by the erroneous assessment of the seriousness of the alleged offences. It was unreasonable for the Minister to stray outside the characterization by the Attorney General for Ontario, whose report the Minister sought for the range of sentence appropriate for the Canadian equivalent offences of sexual interference. The Minister mischaracterized the seriousness of the offence by considering irrelevant factors and failed to consider any mitigating factors.
The Respondent’s Arguments
[54] The respondent focuses first on the nature of the determination the Minister was required to undertake, then on the scope of our authority to review it.
[55] The Minister’s surrender decision resides at the extreme legislative end of the continuum of administrative decision making. It is largely political in nature. With superior expertise in Canada’s international relations and foreign affairs, the Minister is in the best position to determine whether the factors weigh in favour of or against extradition. The Minister’s decision is to be accorded substantial deference on review.
[56] The appropriate standard of review for the surrender decision is reasonableness. A reasonableness review does not allow the court to re-assess the relevant factors and to substitute its own view. In a review of the reasonableness of the Minister’s decision, a court must keep in mind the constraints imposed on the Minister by international law, including Canada’s treaty obligations. The court must determine whether the Minister’s decision falls within a range of reasonable outcomes. In an extradition case, this means that the court must ask whether the Minister considered the relevant facts and reached a defensible conclusion based on those facts. Interference is limited to exceptional cases of “real substance”. No interference should occur where, as here, the decision is rational, transparent and responsive to the applicant’s submissions.
[57] The Minister recognized that he was required to assess the consequences of surrender under s. 7 while incorporating the underlying values of s. 12 of the Charter. He acknowledged that he was required to consider the disparity between the potential sentence the applicant would face if convicted in the United States and the potential sentence he would face if convicted of the equivalent domestic offence in Canada.
[58] The respondent disagrees that the Minister rested his decision on a premise that mandatory minimum sentences in the requesting state can never shock the Canadian conscience. He considered the constitutional infirmity of the mandatory minimum sentences for the Canadian equivalent offence. He was not required to accept the declaration of unconstitutionality as a dispositive factor. It was one of many he considered in deciding whether surrender to a potential mandatory minimum of significantly greater magnitude would offend s. 7. The applicant has not articulated any specific basis on which a declaration of unconstitutionality of the mandatory minimum sentence for the Canadian equivalent offence should have concretely altered the Minister’s analysis in this case.
[59] Further, the respondent continues, the Minister did not err in his assessment of the seriousness of the allegations against the applicant. He considered myriad factors. The inherent harm of the sexual violence against children and consequential harm to members of their family. The Indigenous status of the alleged victims, their sex, young age and the particular vulnerability of the Indigenous population. The applicant’s position as a police officer in Canada. This assessment was reasonable and commensurate with governing principles. Purported mitigating factors should be approached with caution in downgrading the wrongfulness of the offence or the harm to the victims.
The Governing Principles
[60] Our review of the Minister’s surrender decision engages principles drawn from the jurisprudence developed in response to previous challenges of a similar kind.
[61] A convenient point of departure is the authority of the Minister to refuse surrender of a person whose committal to await surrender has been ordered after an extradition hearing.
The Authority to Refuse Surrender
[62] The Minister’s authority to order surrender of a person sought by an extradition partner is governed by statute, namely the Act.
[63] Section 40(1) of the Act confers on the Minister the discretion to personally order that a person committed to await surrender be surrendered to the extradition partner. This broad discretion must be exercised in accordance with the dictates of the Charter: United States v. Burns, [2001] 1 S.C.R. 283, at para. 32, citing Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, at p. 846, per McLachlin J. and Canada v. Schmidt, [1987] 1 S.C.R. 500, at pp. 520-21.
[64] The requirement that the Minister’s surrender decision be exercised in accordance with the Charter demands that the discretion demonstrate a balancing on the facts of each case with the applicable principles of fundamental justice: Burns, at para. 32. In some cases, this balancing and the ultimate requirement that the Minister’s decision adhere to the principles of fundamental justice — the basic tenets of our legal system — may require the Minister to seek assurances from the extradition partner: Burns, at para. 32.
[65] The Act confers a discretion on the Minister to seek any assurances the Minister considers appropriate from the extradition partner, or subject the surrender to any conditions that the Minister considers appropriate, including a condition that the person sought not be prosecuted, or that a sentence not be imposed on or enforced against the person sought, in respect of any offence or conduct other than what is referred to in the order of surrender: s. 40(3). In addition, in cases in which the Minister subjects the surrender to assurances or conditions, the surrender order must not be executed until the Minister is satisfied that the extradition partner has given the assurances or agreed to the conditions: s. 40(4).
[66] The Act also authorizes the Minister to refuse surrender in some circumstances, as may the provisions of the relevant extradition agreement: see, for example, ss. 44-47 of the Act.
[67] In this case, the applicant invokes s. 44(1)(a) of the Act, which requires the Minister to refuse surrender where the Minister is satisfied that, in all the circumstances, the surrender would be unjust or oppressive. A surrender order is unjust or oppressive where, in all the circumstances, the order would “shock the conscience” of Canadians: Canada (Attorney General) v. Barnaby, [2015] 2 S.C.R. 563, at para. 2; Burns, at para. 68. The phrase “shocks the conscience” is intended to underscore the very exceptional nature of the circumstances that would constitutionally limit the Minister’s decision: Burns, at para. 67.
[68] Use of the terminology “shocks the conscience” is intended to convey the exceptional weight of a factor which, because of its paramount importance, may control the outcome of the balancing test on the facts of a particular case. The balancing test considers both the global context and circumstances that may constitutionally vitiate a surrender order: Kindler, at p. 833, per La Forest J. The terminology does not cloud the ultimate measuring stick, that is, whether the extradition accords with the principles of fundamental justice: Burns, at para. 68. A surrender order that breaches the principles of fundamental justice will always shock the conscience: Burns, at para. 68.
Sentencing Disparity as a Basis to Refuse Surrender
[69] A surrender order deprives the person sought of their liberty and security of their person. In each case, this threatened deprivation must be in accordance with the principles of fundamental justice: Burns, at para. 59; Kindler, at p. 831, per La Forest J.
[70] Section 7 of the Charter is concerned not only with the act of extradition, but also with the potential consequences of the act of extradition. A potential consequence of extradition of a person sought by the extradition partner for trial is the punishment that may be imposed in the event of conviction after trial: Burns, at paras. 59-60, citing Schmidt, at p. 522.
[71] The surrender order of the Minister hands over the person sought to law enforcement authorities in the United States, the extradition partner in this case. The Minister’s order does not impose or constitute punishment. If punishment is to be imposed, it will be imposed by law enforcement authorities in the United States.
[72] Since any punishment that might be imposed in the event of conviction is determined by law enforcement authorities in the jurisdiction of the extradition partner, that punishment is not subject to review under s. 12 of the Charter: Burns, at paras. 51, 54-57; Kindler, at p. 846, per McLachlin J.; and Schmidt, at pp. 518-19. The degree of causal remoteness between the Minister’s order surrendering a person and the potential imposition of a term of imprisonment, as one of several possible outcomes to the prosecution in the jurisdiction of the extradition partner, requires that our review of the Minister’s order be conducted under s. 7 of the Charter, not s. 12: Burns, at para. 57.
[73] That said, our review of the Minister’s order to ensure its compliance with s. 7 of the Charter must keep in mind that the values underlying s. 12 form part of the balancing process under s. 7. In other words, the interpretation of s. 7, and thus our review of the Minister’s decision, is informed by s. 12: Burns, at para. 57; Kindler, at pp. 831, per La Forest J., 847, per McLachlin J.; and Schmidt, at p. 522.
[74] The “shocks the conscience” standard described earlier allows for the possibility that even though the rights of the person sought are to be considered in the context of other applicable principles of fundamental justice, which are usually important enough to uphold extradition, a particular treatment or punishment may sufficiently violate our sense of fundamental justice that it tilts the balance against extradition: Burns, at para. 69.
[75] Disparity between the potential sentence the person sought would face if convicted in the jurisdiction of the extradition partner and the potential sentence likely imposed if the person sought were convicted of the Canadian equivalent offence is a factor to be considered in the Minister’s decision and on review of that decision to determine whether the surrender order “shocks the conscience” of Canadians: Canada (Justice) v. Fischbacher, [2009] 3 S.C.R. 170, at para. 54; M.M. v. United States of America, [2015] 3 S.C.R. 973, at paras. 115-20. This difference in potential jeopardy must be balanced with myriad other factors, including comity and reciprocity, which underpin our extradition regime: M.M., at paras. 26, 115-20; Kindler, at p. 847, per McLachlin J.
[76] The mere fact of disparity between potential sentences in the jurisdiction of the extradition partner and those in Canada for the domestic equivalent offence is not sufficient to warrant refusal of a surrender order or setting it aside on review for want of compliance with the principles of fundamental justice. The disparity must be such that it meets the “shocks the conscience” standard: Burns, at para. 69; Schmidt, at pp. 522-23; United States of America v. Leonard, 2012 ONCA 622, 291 C.C.C. (3d) 549, leave to appeal refused, [2012] S.C.C.A. No. 543; and United States of America v. Wilcox, 2015 BCCA 39, 321 C.C.C. (3d) 82, leave to appeal refused, [2015] S.C.C.A. No. 124.
The Canadian Equivalent Offence
[77] The Canadian equivalent offence to those charged in the United States indictment is sexual interference, contrary to s. 151 of the Criminal Code. This offence is a dual procedure offence. When prosecuted by indictment, it is punishable on conviction by a minimum sentence of imprisonment of 1 year and a maximum sentence of 14 years: s. 151(a).
[78] A sentence for an offence committed in Canada will infringe s. 12 of the Charter if the sentence is “grossly disproportionate” to the punishment that is appropriate to the nature of the offence and the circumstances of the offender: R. v. Nur, [2015] 1 S.C.R. 773, at para. 39; R. v. Lloyd, [2016] 1 S.C.R. 130, at para. 22. And a law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur, at para. 77; Lloyd, at para. 22.
[79] Challenges under s. 12 of the Charter involve a two-step analysis. The first step requires the court to determine what constitutes a proportionate sentence for the offences committed having regard to the applicable objectives and principles of sentencing. The second step requires the court to decide whether the mandatory minimum sentence requires imposition of a sentence that is grossly disproportionate to the offence and its circumstances: Lloyd, at para. 23.
[80] The Supreme Court of Canada has established a high bar for finding that a sentence represents a cruel and unusual punishment. A sentence that is merely excessive is not “grossly disproportionate”. More is required. The sentence must be so excessive as to outrage standards of decency and be abhorrent or intolerable to society. The wider the range of circumstances and conduct captured by a mandatory minimum sentence, the greater the likelihood that the mandatory minimum will apply to offenders for whom the sentence will be grossly disproportionate: Lloyd, at para. 24.
[81] The mandatory minimum sentence of imprisonment for one year upon conviction on indictment of sexual interference has been found to breach s. 12 of the Charter and declared to be of no force or effect: R. v. Hood, 2018 NSCA 18, 45 C.R. (7th) 269, at para. 156; R. v. J.E.D., 2018 MBCA 123, 368 C.C.C. (3d) 212, at paras. 107, per Steel J. (dissenting, but not on this point), 130, per Mainella and leMaistre JJ.A.; Caron Barrette c. R., 2018 QCCA 516, 46 C.R. (7th) 400, at para. 116; R. v. B.J.T., 2019 ONCA 694, 378 C.C.C. (3d) 238, at para. 75; R. v. Ford, 2019 ABCA 87, 371 C.C.C. (3d) 250, at para. 18; and R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, at para. 89.
[82] Despite the absence of a mandatory minimum sentence for sexual interference, this being the result of the declaration of constitutional invalidity just mentioned, that an offence involved abuse of a person under 18, or abuse of a person who is vulnerable because of personal circumstances, including because the person is Aboriginal and female, a sentencing court in Canada is required to give primary consideration to the sentencing objectives of denunciation and deterrence: Criminal Code, ss. 718.01 and 718.04.
The Standard of Review
[83] The appropriate standard of review for the Minister’s surrender decision is reasonableness. This is so regardless of whether the person sought contends that the extradition would infringe their rights under the Charter: Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761, at paras. 34, 41.
[84] The Minister’s surrender decision resides at the extreme legislative end of the continuum of administrative decision making. It is a decision that is largely political in nature. The Minister has superior expertise in international relations and foreign affairs. Thus, the Minister is in the best position to determine whether the factors, taken as a whole, tilt the balance for or against extradition: India v. Badesha, [2017] 2 S.C.R. 127, at para. 39.
[85] The breadth of the Minister’s discretion is reflected in the authorities that hold that interference with the Minister’s discretion is limited to exceptional cases of real substance. We are not entitled to re-assess the relevant factors and replace the Minister’s view with our own. We must determine whether the Minister’s decision falls within a range of reasonable outcomes. In other words, we ask whether the Minister considered the relevant facts and rendered a defensible conclusion: Lake, at paras. 34, 41. In this review, we must bear in mind the constraints imposed on the Minister by international law, including our treaty obligations: Canada (Minister of Citizenship and Immigration) v. Vavilov, 441 D.L.R. (4th) 1, at para. 114.
[86] A reasonableness review focuses on the actual decision that is its subject. This includes not only the decision maker’s reasoning process, but also the outcome. Our role is to review. At least as a general rule, we are to refrain from deciding the issue ourselves. We are not to ask what decision we would have made had we been assigned the task of the decision maker. Nor are we to attempt to determine the “range” of possible conclusions that would have been open to the decision maker. Nor are we to conduct a de novo analysis or try to determine the “correct” solution to the problem. We are to consider only whether the Minister’s surrender decision — including both its rationale and outcome — was reasonable: Vavilov, at para. 83.
[87] Vavilov instructs that a reasonable decision is a decision based on an internally coherent and rational chain of analysis and justified in relation to the facts and law that constrain the decision maker. Reasonableness is concerned principally with the existence of justification, transparency and intelligibility within the decision-making process, and with whether the decision falls within a range of possible, acceptable outcomes defensible in respect of the facts and law. To be reasonable, a decision must be based on reasoning that is both logical and rational, and it must be tenable in light of the relevant factual and legal constraints: Vavilov, at paras. 85, 86, 99 and 101-2.
[88] The Minister’s reasons must be read in light of the record and with due sensitivity to the extradition regime in which they were given: Vavilov, at paras. 105-7. The reasons will be unreasonable if, when read holistically, they fail to reveal a rational chain of analysis or do reveal that the decision was based on an irrational chain of analysis. A decision will also be unreasonable if the conclusion cannot follow from the analysis undertaken or if the reasons, read in conjunction with the record, do not make it possible to understand the decision maker’s reasoning on a critical point: Vavilov, at para. 103.
The Principles Applied
[89] As I will explain, I would not give effect to the submission that the surrender decision of the Minister is unreasonable.
[90] At the outset, it is important to be clear about the potential consequences of the surrender order so that those consequences can be evaluated against the “unjust or oppressive” and “shocks the conscience” touchstone the applicant advances as the single ground on which a surrender should have been refused.
[91] The surrender order mandates surrender on only three federal charges. Two counts of abusive sexual contact with a child under 12 and one count of aggravated sexual abuse of a child under 12. Almost by definition, civil commitment is not an offence, hence is not the subject of a count or charge in the indictment. Indeed, if the purpose for which the extradition partner sought extradition were civil commitment, it would be doubtful that this would be permitted by s. 3(1)(a) of the Act.
[92] The surrender order, as s. 40(3) of the Act permits, is subject to assurances. Those assurances are that the applicant, on return to the jurisdiction of the extradition partner, will not be subject to any form of civil commitment “as set out in the attached letter from the United States Department of Justice dated March 13, 2020”. In that letter, the United States Department of Justice indicated that it would not pursue civil commitment of the applicant under federal law and that the applicant would not be civilly committed by the state in this case. On the conclusion of any sentence imposed on conviction, or on an acquittal, the applicant, as a Canadian citizen, would immediately be placed in federal deportation proceedings. Thus, the applicant would not be in state custody and his deportation would have priority over any state civil commitment proceedings. Nor would the United States object to the applicant’s transfer to Canada to serve the remainder of any sentence imposed in the United States if the Government of Canada or the applicant requests this within two years before the conclusion of any sentence imposed on him.
[93] The United States indictment contains three counts. Two of those counts, of abusive sexual contact with a child under 12, do not attract a mandatory minimum sentence on conviction. The third, aggravated sexual abuse of a child under 12, has a mandatory minimum sentence of imprisonment of 30 years.
[94] The Canadian equivalent offence — sexual interference under s. 151(a) of the Criminal Code — is subject to a statutory mandatory minimum sentence of imprisonment for one year. But that sentence has been declared to be of no force or effect because it constitutes cruel and unusual punishment. As a result, there is no mandatory minimum sentence for the Canadian equivalent offence to those with which the applicant is charged in the United States. A suggested range of sentence, were the offences committed in Ontario and the applicant convicted on indictment and sentenced here, is imprisonment for a term of between 90 days and 3 years. Statutory provisions such as ss. 718.01 and 718.04 accord primary consideration to the sentencing objectives of deterrence and denunciation. Also relevant are the principles expounded in R. v. Friesen, 391 C.C.C. (3d) 309, at paras. 60, 68, 70, 74, 77-78 and 101.
[95] The Minister was asked by the applicant to refuse surrender on the ground that the surrender would be unjust or oppressive in all the circumstances under s. 44(1)(a) of the Act. The principal ground advanced on the applicant’s behalf was two-fold:
i. the significant disparity between the sentences imposed on conviction in the United States (a minimum sentence of 30 years) and that likely in Canada for the equivalent offence under domestic law (no minimum sentence and a likely sentence of imprisonment of between 90 days and 3 years); and
ii. the potential of indefinite civil detention under state law after sentence or even after acquittal with no meaningful right of review.
[96] In his written reasons, the Minister considered whether surrender would be unjust or oppressive or contrary to s. 7 of the Charter. He acknowledged his obligation to consider the direct and indirect potential consequences of surrender, such as the punishment or treatment reasonably anticipated in the extradition partner’s jurisdiction. The Minister accepted that he was to assess the implications of surrender through the lens of s. 7 of the Charter as informed by the values underlying s. 12 of the Charter. In declining to exercise his discretion to refuse surrender as unjust or oppressive or contrary to s. 7 of the Charter, the Minister considered, among other factors:
i. the civil commitment regime in the State of Minnesota;
ii. the principle of double criminality; and
iii. the sentence disparity between the potential U.S. sentence and the potential sentence in Canada on conviction of the comparable Canadian offence.
[97] The applicant’s argument that disparity warrants refusal of surrender as unjust or oppressive pivots on the impact of determinations by Canadian courts that the statutory minimum mandatory sentence of imprisonment for one year for the comparable Canadian offence of sexual interference offends s. 12 of the Charter as cruel and unusual punishment and, accordingly, is of no force or effect. The applicant acknowledges that the finding of constitutional invalidity under s. 12 is based on reasonable hypotheticals and that s. 12 is not directly applicable to the United States minimum sentences, although it informs the analysis under s. 7.
[98] As it seems to me, the argument advanced proves too much. The submission would mean that anytime a mandatory minimum sentence for a comparable Canadian offence was struck down as cruel and unusual punishment, if only based on reasonable hypotheticals, a mandatory minimum sentence of greater length in an extradition partner’s jurisdiction would constitute a sentence that would shock the conscience of Canadians, thus offending s. 7 of the Charter, and warrant refusal of surrender as unjust or oppressive under s. 44(1)(a) of the Act. This argument cannot prevail.
[99] In combination, several factors persuade me that the submission that the Minister’s surrender decision is unreasonable fails.
[100] To begin, the surrender decision falls at the extreme legislative end of the continuum of administrative decision making and is largely political in nature. The Minister has superior expertise in international relations and foreign affairs. This attracts substantial deference on judicial review. The surrender decision involves a balancing of competing interests. Interference on judicial review is limited to exceptional cases of “real substance”. It necessarily follows that we are disentitled to re-assess or re-weigh the factors considered by the Minister and substitute our own view in place of that of the Minister.
[101] In our review of the reasonableness of the Minister’s surrender decision, we must also consider the restraints imposed on the Minister under international law, including under Canada’s treaty obligations. That Canada has entered into an extradition agreement with another country demonstrates a certain level of confidence in the administration of justice in that country, even if the system may be different from ours, with different priorities and disparate punishments.
[102] The discrepancy in potential jeopardy between the extradition partner and Canada is not dispositive of whether the surrender shocks the conscience of Canadians, whether it would offend s. 7 of the Charter or whether it would warrant refusal as unjust or oppressive under s. 44(1)(a) of the Act. Other factors include the offence for which the penalty may be prescribed. The nature of the justice system in the extradition partner. The safeguards and guarantees it affords the person sought. And considerations of comity.
[103] In this case, the Minister was well aware of the nature and extent of the disparity and of its importance to his surrender decision. He took steps to obtain assurances to reduce that disparity. He obtained assurances that no federal civil commitment proceedings would (or could) be taken and that state civil commitment proceedings would be foreclosed. The potential of civil commitment, a key factor in the applicant’s submissions to the Minister, has been removed from the mix by the inclusion of assurances in the surrender order.
[104] As the Minister recognized, it is well settled that, absent sentences that would invoke consequences such as torture, the death penalty, excision of limbs and the like, the sentencing regimes of other nations, despite their significant severity compared to our own, will not generally “shock the conscience” of Canadians.
[105] Further, it is important to keep in mind that the issue here is not whether the 30-year mandatory minimum sentence for one offence with which the applicant is charged in the United States — aggravated sexual abuse of a child under 12 — for the conduct alleged here would pass constitutional muster under s. 12 of the Charter. To frame the issue in this way would extend the measuring stick of s. 12 of the Charter to the sentencing regime of another country, our extradition partner. Rather, the issue, as the Minister recognized, was whether surrendering the applicant to an extradition partner where he would face that prospect would “shock the conscience” of Canadians contrary to s. 7 of the Charter or be unjust or oppressive contrary to s. 44(1)(a) of the Act.
[106] Relatedly, implicit in the applicant’s argument is a submission that, since our domestic criminal and constitutional law would assuredly affix the label “cruel and unusual punishment” to a mandatory minimum sentence of 30 years’ imprisonment for our comparable offence, to surrender a person sought to an extradition partner where he would be subject to such a prospect necessarily offends the principles of fundamental justice and is unjust or oppressive. This comes uncomfortably close to an extra-territorial application of s. 12 of the Charter. What is more, it would uproot in the extradition context the holding in Lloyd, at paras. 40 and 47, that proportionality in sentencing is not itself a principle of fundamental justice.
Disposition
[107] For these reasons, I would dismiss the application to review the Minister’s surrender decision.
Released: June 22, 2021 “JS” “David Watt J.A.” “I agree. Janet Simmons J.A.” “I agree. L.B. Roberts J.A.”