Court of Appeal for Ontario

Date: November 21, 2019 Docket: C65722

Judges: Strathy C.J.O., Doherty and Tulloch JJ.A.

Between

The Attorney General of Canada (on Behalf of the United States of America)

Respondent

and

Colin Levy

Applicant

Counsel

Brad Greenshields, for the applicant

Adrienne Rice, for the respondent

Heard: October 2, 2019

On application for judicial review of the surrender order of the Minister of Justice dated August 1, 2018.

Decision

Tulloch J.A.:

Introduction

[1] Mr. Levy seeks judicial review, pursuant to s. 57 of the Extradition Act, S.C. 1999, c. 18, of the order of the Minister of Justice ("the Minister"), dated August 1, 2018, ordering that he be surrendered to the United States to stand trial on criminal charges for drug-related offences. I would dismiss the appeal and uphold the Minister's order.

Facts

[2] The applicant is a 53-year-old Canadian citizen who faces charges of trafficking and conspiracy to import illegal drugs into the U.S. These indictments were filed in the Southern District of Florida in 2010 and 2014. Mr. Levy was provisionally arrested in Canada on December 6, 2016, and the U.S. authorities requested his extradition to the U.S. by diplomatic note on February 3, 2017, clarified on March 5, 2018. The applicant was subject to an extradition hearing in front of André J. of the Superior Court of Justice in June 2017. The extradition judge found that there was sufficient evidence to commit Mr. Levy on the offences in question and ordered him committed into custody to await the decision of the Minister on extradition.

[3] The applicant abandoned his appeal of the committal order. However, counsel for the applicant made submissions to the Minister on his behalf on three occasions between December 2017 and June 2018, arguing that she should refuse to extradite on the basis that it could be unjust and oppressive, having regard to Mr. Levy's health and personal circumstances. On August 1, 2018, the Minister ordered that the applicant be surrendered to the U.S. authorities, under s. 40 of the Extradition Act. She amended this order on July 3, 2019, under s. 42 of the Extradition Act, postponing the applicant's surrender in light of new charges pending against the applicant in Ontario.

[4] Mr. Levy suffers from schizophrenia, epilepsy and prostate cancer. He experienced several complications following surgery for his prostate cancer in December 2016, including extreme leg and back pain and severe incontinence and bladder leakage. He is the caregiver for his two adult sons, both of whom also suffer from schizophrenia. Counsel for the applicant submitted letters to the Minister from the applicant's physicians, outlining their concerns that Mr. Levy's health conditions would worsen if he were extradited. This harm would result from the stress of travel itself and his removal from his medical support network.

[5] In light of this medical evidence, the Minister reached out to the U.S. authorities to inquire about the availability of treatment for Mr. Levy prior to and during the extradition proceedings, if he were to be found guilty and incarcerated. She found that Mr. Levy's conditions could be treated, managed and eventually stabilized in custody in the U.S. and that he should be extradited.

Arguments

[6] The applicant argues that the Minister is obliged to refuse surrender under s. 44(1)(a) of the Extradition Act because the applicant's surrender would be unjust or oppressive. He submits the following grounds for review:

(a) The Minister applied the wrong legal test and imposed too rigorous a standard in her decision under s. 44(1)(a) of the Act;

(b) The Minister misapprehended the issue to be the adequacy of care in the foreign state, as opposed to the likelihood of significant harm to the applicant's health caused by the act itself of extraditing the applicant to the foreign state; and

(c) The Minister erred by speculating that the expected harm to the applicant's health would be "eventually stabilized" in the foreign state, contrary to the uncontradicted opinions provided by the applicant's treatment team.

Analysis

Standard of Review

[7] The standard of review for the Minister's decision is reasonableness: United States of America v. Cavan, 2015 ONCA 664, 127 O.R. (3d) 430. Provided she applied the correct legal test, discussed below, and did not otherwise err in law or contravene the principles of natural justice, this court owes deference to her decision: Cavan, at para. 58. Her decision is essentially an exercise of discretion, indicated by the statutory requirement that she be "satisfied" that the surrender would be unjust or oppressive: Cavan, at paras. 45 and 58.

The Minister Did Not Apply the Wrong Legal Test

[8] The applicant submits that the Minister applied the wrong legal tests, which were: "outraging the standards of decency" and whether ss. 7 or 12 of the Charter were violated. Instead, she should have asked whether Mr. Levy's surrender would be "unjust or oppressive", as required by s. 44(1)(a). The applicant submits that the standard applied by the Minister was outdated and drawn from cases that were decided under provisions of the Extradition Act that have since been amended. The ambit of the Extradition Act is now broader; in particular, a finding that extradition would breach the Charter is not required for the Minister to refuse to surrender under s. 44(1)(a).

[9] The Minister did not apply the wrong legal test. She stated at p. 5 of her reasons:

In determining whether to order Mr. Levy's surrender, I must consider whether his potential incarceration in a prison in the United States may have such a negative impact on his health that his surrender would be contrary to the principles of fundamental justice under section 7 of the Charter or otherwise unjust or oppressive under section 44(1)(a) of the Act (Burns). Specifically, health concerns can justify a refusal of surrender where extradition would aggravate the adverse effects on the health of a person sought to the point where it would "outrage the standards of decency" (*Larabie v. R.* (1988), 42 CCC(3d) 385 (CA)).

[10] Although she did use the language of "outraging the standards of decency" and refers to violations of ss. 7 and 12 of the Charter at different points in her reasons, taken as a whole, the decision reasonably applies the appropriate test of whether surrender would be "unjust or oppressive." The Minister referred to the correct test throughout her decision.

[11] In her conclusion on the issue of health at p. 7 of her reasons, the Minister stated "in my view, the effect of extradition on Mr. Levy would not be so extreme as to shock the conscience or outrage the standards of decency, or be otherwise unjust or oppressive, notwithstanding the status of his health" (emphasis added). Discussing his personal circumstances at p. 8 of her reasons, the Minister stated that "I am satisfied that Mr. Levy's surrender would not be unjust or oppressive, or be contrary to the principles of fundamental justice, notwithstanding his personal circumstances" (emphasis added). As the respondent submits, the Minister appears to refer to the case of *R. v. Larabie* (1988), 42 C.C.C. (3d) 385 (Ont. H.C), as an example of a factually similar case, and not as setting out the standard under s. 44(1)(a).

[12] In oral argument, the applicant raised a further issue of whether the Minister understood the "unjust or oppressive" threshold as being equivalent to "outraging the standards of decency". That is, whether she believed that it would only be unjust or oppressive to extradite the applicant if the effect on his health would be so severe as to outrage the standards of decency. Counsel pointed to p. 5 of the Minister's decision, in which she noted the "unjust or oppressive standard" and then stated: "Specifically, health concerns can justify a refusal of surrender where extradition would aggravate the adverse effects on the health of a person sought to the point where it would 'outrage the standards of decency' (*Larabie*)".

[13] The concern is that the Minister meant to convey that health concerns could only justify a refusal if they outraged the standards of decency. The applicant submits that this is not the test, since "unjust or oppressive" is a lower standard than outraging the standards of decency.

[14] This section of the Minister's reasons, read in isolation, is concerning and could support a conclusion that she applied the wrong test. However, read as part of the decision as a whole, this section alone does not demonstrate that she misconstrued the legal standard. As noted above, later in her decision, she finds that the impacts of extradition on the applicant's health would not "shock the conscience or outrage the standards of decency or be otherwise unjust or oppressive" (emphasis added). She considered the standard of "unjust or oppressive" separately from the standard of outraging decency, and not as equivalent to it. Taken with the reasons as a whole, in which she refers to the correct test repeatedly, this section does not show she applied the wrong legal standard.

[15] The test under s. 44(1)(a) is whether the surrender would be unjust or oppressive in all the circumstances. The Minister adverted to the correct test and her decision is not unreasonable under its framework.

The Minister Did Not Misapprehend the Issue of the Effect of Extradition on the Applicant's Health

[16] The applicant submits that the Minister unreasonably focused on the care available to the applicant in the U.S., rather than on the harm he would experience from being extradited. The uncontradicted medical evidence showed that the very act of extradition would cause significant harm to the applicant's health. The applicant argues that the Minister addressed the wrong question in finding that, once this harm had already occurred, the applicant could be adequately cared for in the U.S.

[17] The Minister properly adverted to the overall effect on the applicant of surrender and trial in the U.S. She engaged in the balancing exercise required of her under the Extradition Act. She acknowledged the evidence that the applicant would suffer harm to his physical and mental health upon his extradition. She also considered the care available to him in the U.S. before, during, and following his trial. Both considerations are components of the overall effect of surrender on the applicant.

[18] The Minister considered the public interest in performing Canada's treaty obligations and the U.S. interest in prosecuting crime occurring within its borders. Balancing this with the effects on the applicant's health and the treatment that would be available to him upon his arrival in the U.S., she found that it was not unjust or oppressive to surrender Mr. Levy. This decision was reasonable.

The Minister Was Entitled to Rely on Information from the U.S. Authorities and This Was Not Speculation

[19] Finally, the applicant submits that the Minister should not have relied on "institutional" information from the U.S. Marshals Service and Federal Bureau of Prisons, because this was not necessarily provided by individual medical professionals. Mr. Levy presented evidence from individual doctors in his treatment team giving their opinions that he should not travel or stand trial in the U.S. He argues that the Minister could not rely on general information about the U.S. healthcare system but should have acquired specific evidence about how Mr. Levy himself would be treated upon his arrival in the U.S., ideally from individual healthcare professionals.

[20] The Minister was entitled to rely on the information she received from the U.S. about the care available before and during trial, and in the prison system. She was not required to obtain evidence from individual healthcare professionals. Her conclusions about the care available to Mr. Levy in the U.S. were not speculative but were based on the evidence that she requested and obtained from the relevant authorities. Her decision was reasonable in light of all the evidence before her.

Conclusion

[21] The Minister's decision was reasonable, and the judicial review application is dismissed. She did not apply the wrong legal test, did not misapprehend the issue of negative effects on the applicant's health, and did not speculate about the care available in the U.S. She engaged in a balancing exercise and there is no basis for this court to interfere with her decision.

Released: November 21, 2019

"M. Tulloch J.A."

"I agree. G.R. Strathy C.J.O."

"I agree. Doherty J.A."