The Minister of Justice for Canada v. Pacificador

The Minister of Justice for Canada v. Pacificador [Indexed as: Canada (Minister of Justice) v. Pacificador]

60 O.R. (3d) 685

[2002] O.J. No. 3024

Docket No. C32995

Court of Appeal for Ontario,

Catzman, Sharpe and Simmons JJ.A.

August 1, 2002

• Application for leave to appeal to the Supreme Court of Canada was dismissed February 20, 2003 (Gonthier, Major and Arbour JJ.). S.C.C. File No. 29398. S.C.C. Bulletin, 2003, p. 286.

Charter of Rights and Freedoms -- Fundamental justice -- Extradition -- Requesting state seeking appellant's extradition to stand trial for offences arising out of 1986 assassination of political figure -- Appellant claiming that prosecution was politically motivated and that his co-accused had been subjected to years of detention without trial -- Appellant committed for extradition in 1992 -- Minister of Justice sought and obtained assurances from requesting state that it would use its best [page686] efforts to ensure that appellant's trial would be completed within one year -- Minister ordered appellant surrendered for extradition -- Appellant applied to quash warrant of surrender -- Applications judge found that surrender would violate appellant's rights under s. 7 of Charter -- Applications judge adjourned application several times to enable Minister to expand record and address his concerns -- Applications judge ultimately dismissed application after Minister received further assurances from requesting state -- Appellant's appeal allowed -- Manner in which case proceeded resulted in failure to assess appellant's s. 7 claim on entirety of record -- Requesting state's assurances inadequate to address concerns that appellant's surrender would violate his s. 7 rights -- Appeal allowed -- Canadian Charter of Rights and Freedoms, s. 7.

Extradition -- Charter of Rights and Freedoms -- Fundamental justice -- Requesting state seeking appellant's extradition to stand trial for offences arising out of 1986 assassination of political figure -- Appellant claiming that prosecution was politically motivated and that his co-accused had been subjected to years of detention without trial -- Appellant committed for extradition in 1992 -- Minister of Justice sought and obtained assurances from requesting state that it would use its best efforts to ensure that appellant's trial would be completed within one year -- Minister ordered appellant surrendered for extradition -- Appellant applied to quash warrant of surrender -- Applications judge found that surrender would violate appellant's rights under s. 7 of Charter -- Applications judge adjourned application several times to enable Minister to expand record and address his concerns -- Applications judge ultimately dismissed application after Minister received further assurances from requesting state -- Appellant's appeal allowed -- Manner in which case proceeded resulted in failure to assess appellant's s. 7 claim on entirety of record -- Requesting state's assurances inadequate to address concerns that appellant's surrender would violate his s. 7 rights -- Appeal allowed -- Canadian Charter of Rights and Freedoms, s. 7.

The appellant was wanted to stand trial in the Republic of the Philippines for offences arising out of the 1986 assassination of a political figure. He argued that the evidence against him was the product of political manipulation, that others charged with the same offences had been subjected to several years of harsh detention without trial in the Philippines, and that the Philippines justice system had failed to respect fundamental rights. While the trials of his co- accused had begun in 1988, the Supreme Court of the Philippines had issued a Temporary Restraining Order in 1989 that halted the trials indefinitely. The appellant was ordered committed for extradition in 1992. After he had exhausted the appeal process, the issue of his surrender went before the Minister of Justice. The Minister ordered the appellant's surrender for extradition, but prior to doing so, he sought and obtained an assurance from the Philippines that the Philippines would exert its best efforts to ensure that the appellant's trial would be completed within one year from the date of his surrender. In the Minister's view, surrendering the appellant for extradition in reliance on the assurances would not violate the appellant's rights under s. 7 of the Canadian Charter of Rights and Freedoms. At the time of that decision, the appellant's co-accused were still in custody and the proceedings against them were still subject to the Temporary Restraining Order. The appellant applied for habeas corpus, certiorari, prohibition and relief under s. 24 of the Charter to quash the warrant of surrender. The applications judge found that the assurance from the Philippines was ineffective in responding [page687] to concerns about the appellant's s. 7 Charter rights for several reasons, including the fact that the impediment to a bail hearing and trial being conducted should the appellant be surrendered appeared to flow from a judicial determination, and the government of the Philippines, which presumably did not control the judiciary, could not give an assurance that the court would lift the Temporary Restraining Order. Although the applications judge found that surrendering the appellant in reliance on the Philippines' speedy trial assurance would violate his s. 7 rights, he did not set aside the Minister's surrender order, but instead granted a series of adjournments to permit the Minister to expand the record. After receiving additional material, which indicated that the Supreme Court of the Philippines had lifted the Temporary Restraining Order, the applications judge held that his concerns had been met and dismissed the application. The appellant appealed.

Held, the appeal should be allowed.

A Minister's surrender decision violates s. 7 of the Charter where the individual would face a situation that is simply unacceptable or where the nature of the foreign country's criminal procedures or penalties sufficiently shocks the conscience. To surrender the appellant for extradition in the circumstances of this case would violate his rights under s. 7 of the Charter. The manner in which his case had proceeded had resulted in a failure to assess the appellant's s. 7 claim on the entirety of the record. His claim had been decided bit by bit on a piecemeal basis. Taken as a whole, the record demonstrated that to surrender the appellant would be simply unacceptable, as the manner in which this prosecution had been conducted in the courts of the Philippines shocked the conscience. The Philippines' assurances were unpersuasive and unreliable. This, combined with the fact that the cause of the unconscionable delay in the trial of the co-accused was the unexplained order of the Supreme Court of the Philippines, seriously undermined the Minister's argument that the appellant should be surrendered on the faith the Minister expressed in the Philippines' justice system. The shocking and unacceptable delay in bringing the appellant's co-accused to trial and the shocking and unacceptable period of pre-trial detention and denial of bail fell far below Canadian standards. At the same time that the Temporary Restraining Order violated fundamental rights of the appellant's co-accused, the Philippines' justice system failed to explain why the appellant's treatment on surrender would differ from that of his co-accused. Moreover, no evidence was led to dispute the appellant's serious allegations of political manipulation and fabrication of evidence, and his allegations of appalling treatment of his co- accused during the lengthy period of pre-trial detention. At the very least, those allegations established a significant risk that the appellant would not be treated fairly upon his surrender.

APPEAL from an order dismissing an application to quash a warrant of surrender.

Cases referred to Argentina (Republic) v. Mellino, 1987 49 (SCC), [1987] 1 S.C.R. 536, 52 Alta. L.R. (2d) 1, 40 D.L.R. (4th) 74, 76 N.R. 51, [1987] 4 W.W.R. 289, 28 C.R.R. 262, 33 C.C.C. (3d) 334; Kindler v. Canada (Minister of Justice), 1991 78 (SCC), [1991] 2 S.C.R. 779, 84 D.L.R. (4th) 438, 129 N.R. 81, 6 C.R.R. (2d) 193, 67 C.C.C. (3d) 1, 8 C.R. (4th) 1, 45 F.T.R. 160n; Schmidt v. R., 1987 48 (SCC), [1987] 1 S.C.R. 500, 61 O.R. (2d) 530, 20 O.A.C. 161, 39 D.L.R. (4th) 18, 76 N.R. 12, 28 C.R.R. 280, 33 C.C.C. (3d) 193, 58 C.R. (3d) 1 (sub nom. Schmidt v. Canada); United States of America v. Allard, 1987 50 (SCC), [1987] 1 S.C.R. 564, 40 D.L.R. (4th) 102, 75 N.R. 260, 28 C.R.R. 253, 33 C.C.C. (3d) 501; United States of America v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, 85 B.C.L.R. (3d) 1, 195 D.L.R. (4th) 1, 265 N.R. 212, [2001] 3 W.W.R. 193, 81 C.R.R. (2d) 1, 151 C.C.C. (3d) 97, 39 C.R. (5th) 205; United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, 197 D.L.R. (4th) 1, 267 N.R. 310, 81 C.R.R. (2d) 189, 152 C.C.C. (3d) 225, 41 C.R. (5th) 44; [page688] Whitley v. United States of America, 1996 225 (SCC), [1996] 1 S.C.R. 467, 27 O.R. (3d) 96n, 132 D.L.R. (4th) 575, 197 N.R. 169, 104 C.C.C. (3d) 447n, affg (1994), 1994 498 (ON CA), 20 O.R. (3d) 794, 94 C.C.C. (3d) 99, 25 C.R.R. (2d) D-1, 119 D.L.R. (4th) 693 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 7, 24

Philip Campbell, for appellant. David Littlefield and Kevin Wilson, for respondent.

The judgment of the court was delivered by

[1] SHARPE J.A.: -- The appellant is wanted to stand trial in the Republic of the Philippines for offences arising out of the 1986 assassination of a prominent political figure. The appeal arises from lengthy and protracted extradition proceedings, at the conclusion of which the applications judge dismissed the appellant's application to quash a warrant of surrender to the Philippines. The appellant has argued throughout that the evidence against him is the product of political manipulation, that others charged with the same offences have been subjected to several years of harsh detention without trial in the Philippines, and that the Philippines' justice system has failed to respect fundamental rights in this case. Before this court, the appellant advanced two main grounds of appeal. First, he submitted that his surrender for extradition would violate his rights under s. 7 of the Canadian Charter of Rights and Freedoms. Second, he submitted that he cannot be lawfully surrendered for extradition until his claim for refugee status has been finally determined.

Facts

[2] On February 11, 1986, during the course of an election called by President Ferdinand Marcos, Evelio Javier was assassinated outside the capitol building in San Jose, the Philippines. Javier was a former provincial governor in the Philippines and a prominent supporter of Corazon Aquino, the opposition candidate of President Marcos.

[3] Witnesses at the scene saw armed men approach the capitol building in two jeeps. The men from the first jeep got out, fired at Javier, followed him into a house and killed him. Bystanders were injured in the gunfire. Witnesses identified two known associates of the appellant's family, John Paloy and Vicente Vegafria, as being among the assassins. No witness saw the appellant at the scene of the killing. [page689]

[4] Some witnesses purported to see the appellant together with Paloy shortly after the killing. One witness, Eduardo Aguillon, stated that he saw the appellant and Paloy get out of one of the jeeps when it stopped near a service station after fleeing the scene. However, another witness with the same vantage point as Aguillon, Corporal Rogelio Encarnacion of the San Jose Police Department, contradicted Aguillon's account. A third witness, Fritz Xavier, stated that he saw a group of armed men arrive at the Pacificador family compound after the killing, followed by the appellant and Paloy. However, shortly after making this statement, Xavier recanted his allegation, claiming that he was misled into signing a false affidavit by his cousin, a political opponent of the Pacificadors.

[5] In February 1986, in the aftermath of a post-election revolution, the appellant and his father fled from the Philippines. The appellant's father, Arturo Pacificador, was a well-known supporter of Marcos. In October 1986, the appellant, his father and several other men were charged with offences arising out of the February 11, 1986 assassination. The appellant was charged with one count of murder, one count of frustrated murder and four counts of attempted murder.

[6] In late 1986, two men, Romeo Nagales and Jose Delumen, gave statements to Philippines' prosecutors admitting that they were in the second jeep and naming several men as Javier's killers. They did not name the associates of the appellant's family, Paloy and Vegafria, or give any evidence inculpating the appellant. Nor did they give evidence inculpating the appellant in supplementary statements given later in 1986 and in 1987. Despite their admissions, Nagales was discharged and the case against Delumen was dismissed. In 1991, along with another admitted participant, Nagales and Delumen gave statements alleging that the appellant was involved in approving the murder, supplying masks for the killers, and giving the killers aid and clothing after the killing.

[7] On October 8, 1987, the appellant entered Canada and claimed status as a Convention refugee. In late 1989, Canada and the Philippines negotiated an extradition treaty, which came into force on November 12, 1990. Securing the appellant's return to the Philippines to face trial for Javier's murder was a significant factor motivating the treaty.

[8] Over several days between November 1990 and April 24, 1991, a hearing was conducted before an adjudicator from the Employment and Immigration Commission and a member of the Immigration and Refugee Board (the "Board") to determine whether there was a credible basis on which the Refugee Division of the Board might determine that the appellant was a Convention Refugee. The appellant testified at length. The essence of his [page690] claim was that the Philippines' prosecution against him was a means of persecution. The Board member found that there was no credible basis for the appellant's refugee claim. However, the adjudicator found that there was a credible basis for his claim, with the result that the claim was required to proceed to a full hearing before the Board.

[9] On November 12, 1991, the appellant was arrested on a warrant of apprehension for extradition. On October 5, 1992, Watt J. ordered his committal for extradition. On February 5, 1993, German J. dismissed the appellant's application for habeas corpus. On July 29, 1993, this court dismissed the appellant's appeal. On April 28, 1994, the Supreme Court of Canada refused leave to appeal.

[10] The issue of the appellant's surrender then went before the Minister of Justice, Allan Rock. The appellant urged the Minister to refuse to surrender him to the Philippines on the ground that his surrender would violate his rights under s. 7 of the Charter. The appellant submitted that the record demonstrated the involvement of political forces in the prosecution directed by the deceased's brother, Congressman Exequiel Javier. The appellant adduced evidence concerning a risk of torture in the Philippines as well as evidence concerning the judiciary's lack of independence from political influence. He also argued that the Minister could not lawfully order the surrender of a refugee claimant before the determination of his or her refugee claim.

[11] On October 19, 1996, the Minister ordered the appellant to be surrendered for extradition to the Philippines. The Minister acknowledged "weaknesses and inconsistencies" in the evidence against the appellant. However, he rejected the appellant's submission that the prosecution against him was politically motivated and that the Philippines' extradition request was made for the purpose of punishing him for his political beliefs. The Minister stated that Canada only signs treaties with states having justice systems and political systems that are fair and that offer accused persons adequate procedural protections. While the Minister noted the evidence concerning political conditions and human rights abuses in the Philippines, he expressed the view that the situation had improved in recent years. The Minister concluded that Canada could rely on the Philippines' legal safeguards and political system to ensure the appellant's safety and to ensure that the appellant received a fair trial.

[12] Although the Minister of Justice ordered the appellant's surrender for extradition, prior to doing so, he sought and obtained two assurances from the Philippines. First, he obtained an assurance that the death penalty would not be imposed or [page691] carried out on the appellant. Second, he obtained an assurance that the Philippines would exert its best efforts to ensure that the appellant's trial would be completed within one year from the date of his surrender. The Minister acknowledged that the delays in the cases against the appellant's co-accused "do raise some concerns". While their trials had begun in 1988, the Supreme Court of the Philippines had issued a Temporary Restraining Order in 1989, which had halted their trials indefinitely. In the Minister's view, surrendering the appellant for extradition to the Philippines in reliance on the assurances he had obtained would not violate the appellant's rights under s. 7 of the Charter.

[13] The Minister found that it was the appellant's actions in not pursuing his application that had prevented a full hearing before the Immigration and Refugee Board. However, the parties now acknowledge that the legislation in effect at the time required the Minister of Employment and Immigration (now the Minister of Citizenship and Immigration) to refer the claim to the Board for a full hearing and that the Minister had not done so through no fault of the appellant.

[14] On November 1, 1996, the appellant applied for habeas corpus, certiorari, prohibition and relief under s. 24 of the Charter to quash the warrant of surrender or, in the alternative, to stay or prohibit his surrender pending the determination of his refugee claim. In support of his application, the appellant sought to introduce several affidavits providing evidence on the treatment of co-accused and witnesses and on the Temporary Restraining Order issued by the Supreme Court of the Philippines. This evidence was not contradicted by the respondent, who did not cross-examine the affiants or lead evidence to challenge their evidence.

[15] With respect to the affidavit evidence on the treatment of co-accused and witnesses, two affiants described being subjected to electric shock while in custody. Vegafria swore that Congressman Javier pointed a cocked pistol at him while visiting him in jail and that a jail guard pleaded with him not to shoot. Four witnesses stated that they were bribed or threatened to swear false statements against the Pacificadors. Two affiants provided evidence that Congressman Javier had paid or offered to pay witnesses. A chief of police swore that he had been in the appellant's company elsewhere at the time of the killing, and that the prosecutor was uninterested in verifying the appellant's whereabouts at that time. He also swore that Congressman Javier had tried to bribe him to give inculpatory evidence against the appellant.

[16] With regard to the affidavit evidence on the Temporary Restraining Order, there was uncontradicted evidence as to how the order arose and the delay it has caused in bringing [page692] the co-accused to trial. By May 1989, the prosecution had completed its case against the first two co- accused, Paloy and Vegafria. At that time, the Pacificadors' family attorney, Avelino Javellana, was arrested and charged with Javier's murder. Javellana brought a bail application. However, before his application was heard, the prosecution arrested and charged another co-accused, Oscar Tiauson. The prosecution secured a statement from Tiauson admitting participation in the murder and also implicating Javellana. The prosecution requested to have Tiauson discharged so that he could testify against Javellana at Javellana's bail hearing.

[17] On August 18, 1989, the prosecution filed a petition for certiorari to prevent Javellana's bail hearing from proceeding before a determination was made as to Tiauson's discharge. On August 31, 1989, the Supreme Court of the Philippines issued an initial Temporary Restraining Order requiring that Tiauson's discharge be resolved before Javellana's bail hearing continued.

[18] On September 1, 1989, Judge Maceda refused to order Tiauson's discharge. Judge Maceda observed that the prosecution against Paloy and Vegafria had continued, even though Tiauson's statement exculpated them. He also observed that the prosecution against Nagales and Delumen had not continued, even though they had admitted their participation in the killing. Judge Maceda concluded that the situation lent credence to Javellana's contention that the prosecution had adopted a "scandalous dual theory".

[19] The prosecution immediately served on Judge Maceda a motion for inhibition on the ground of bias. Judge Maceda ruled that Javellana's bail hearing would proceed on September 14. On September 14, the prosecutor walked out of court and Judge Maceda found him in contempt of court and sentenced him to ten days' imprisonment. The prosecution then sought a further restraining order restraining Judge Maceda from ruling on Javellana's bail hearing and taking any other steps on the case.

[20] On September 22, 1989, the Supreme Court of the Philippines issued a Temporary Restraining Order with Preliminary Mandatory Injunction. The Temporary Restraining Order required Judge Maceda to "cease and desist from further acting" in the case "including the granting of any bail to Avelino Javellana". The Preliminary Mandatory Injunction directed Judge Maceda to "promptly order the immediate release" of the prosecutor whom Judge Maceda had sentenced to imprisonment. By way of reasons for the Temporary Restraining Order and Preliminary Mandatory Injunction, the Supreme Court of the Philippines stated only that the prosecution's petition "has been found to be sufficient in form and substance". [page693]

[21] Three years after the issuance of the Temporary Restraining Order, on September 25, 1992, the Supreme Court of the Philippines confirmed and ratified the Temporary Restraining Order issued on September 22, 1989. In an affidavit, the appellant's father swore that the docket entry for the Supreme Court's confirmation and ratification of the Temporary Restraining Order stated "internal resolution -- not for release". His evidence has not been contradicted.

[22] Tiauson is currently out of custody without a bail order, apparently on Congressman Javier's order. He runs a business in San Jose and serves occasionally as the Congressman's driver.

[23] The prosecution took the position that the Supreme Court's Temporary Restraining Order prevented any further proceedings against the appellant's co-accused. The co-accused made repeated petitions to the Supreme Court to have the Temporary Restraining Order set aside. The Supreme Court did not respond to any of their repeated petitions.

[24] As noted above, the appellant sought to introduce the foregoing affidavit evidence on the treatment of co-accused and witnesses and on the Temporary Restraining Order during his application to quash or stay the warrant of surrender. The applications judge ruled that the appellant could supplement the record only to show jurisdictional error and refused to admit all but two of the affidavits. The appellant then sought an adjournment to have the opportunity to request that the Minister of Justice, then Anne McLellan, reconsider Minister Rock's decision in light of the new evidence. On consent of the respondent, the applications judge granted the adjournment.

[25] The appellant submitted the affidavit evidence to Minister McLellan together with a request to reconsider Minister Rock's surrender decision. On March 19, 1998, Minister McLellan declined to reconsider the surrender decision. In her view, some of the evidence concerned events that had occurred some time ago, much of the evidence was merely illustrative of issues that Minister Rock had already considered, and the evidence did not contain new information to justify a reconsideration of the surrender decision.

[26] On May 19, 1998, the appellant's application to quash or stay the warrant of surrender came before the applications judge again. With the respondent's consent, the application was amended to include a challenge to Minister McLellan's refusal to reconsider Minister Rock's surrender decision.

Reasons for Decision of the Applications Judge

[27] The applications judge released three sets of reasons. In his reasons dated January 18, 1999, the applications judge held that extraditing the appellant in reliance on the Philippines' [page694] speedy trial assurance would violate the appellant's s. 7 Charter rights. However, he did not set aside the Minister's decision immediately, but withheld final determination to give the respondent an opportunity to file additional material. See [1999] O.J. No. 35 (Gen. Div.). In his reasons dated May 31, 1999, the applications judge considered the additional material and held that the material did not satisfy his concerns. However, he gave the respondent another opportunity to file additional material. See [1999] O.J. No. 1915 (Gen. Div.). Finally, in his reasons dated October 19, 1999, the applications judge considered the additional material, found the material sufficient and dismissed the appellant's application. See [1999] O.J. No. 3866 (Gen. Div.).

[28] In his careful and detailed reasons dated January 18, 1999, the applications judge began by setting out the standard of review of a Minister's surrender decision articulated by Laskin J.A. in Whitley v. United States of America (1994), 1994 498 (ON CA), 20 O.R. (3d) 794 at p. 805, 94 C.C.C. (3d) 99 at p. 110 (C.A.), affd 1996 225 (SCC), [1996] 1 S.C.R. 467, 104 C.C.C. (3d) 447n:

[I]f the Minister violates the fugitive's constitutional rights or otherwise errs in law, or if the Minister denies the fugitive procedural fairness, acts arbitrarily, in bad faith or for improper motives, or if the Minister's decision is plainly unreasonable, then the reviewing court is entitled to interfere; otherwise, the court should defer to the Minister's surrender decision.

[29] The applications judge dismissed several of the appellant's arguments. He dismissed the argument that the Minister's refusal to disclose certain documents and refusal to hold an oral hearing had violated the appellant's right to procedural fairness and his right to a fair hearing under s. 7 of the Charter. He rejected the argument that the Minister's dual role as prosecutor at the extradition stage and adjudicator at the surrender stage created a reasonable apprehension of bias. He dismissed the argument that Minister Rock had erred in ordering the appellant's surrender without a final determination as to his status as a Convention refugee. He rejected the argument that Minister Rock had erred in concluding that the prosecution against the appellant was not politically motivated and the argument that Minister McLellan had erred in her decision not to reconsider the question of surrender. Finally, he dismissed the argument that Ministers Rock and McLellan had erred in finding no s. 7 violation as a result of evidence concerning torture, threats to human safety, inhumane prison conditions and concerns regarding fair trial process. In dismissing that argument, the applications judge held at paras. 63-64: [page695]

Undoubtedly the underlying concerns held by the applicant cannot be said to be frivolous, but in my view, they were given fair and careful consideration by Mr. Rock. In essence, he concluded that Canada could rely on the adequacy of the legal safeguards and political system in the Philippines to ensure that the safety of the applicant is not jeopardized, and that he receives a fair trial. He reached this conclusion based on both systemic and case specific considerations. . . . I am in no position to independently assess the domestic or international significance of harm being done to the applicant should he be surrendered, but I see nothing illogical or unreasonable in the Minister's analysis. I am unable to conclude that he erred in his assessment of the situation or in his conclusion. I am also unable to conclude that he refused to consider the weight or quality of the evidence presented to him, or that he failed to consider any relevant factor . . . Neither am I able to conclude that Ms. McLellan erred in her view that the new material presented to her cast no doubt on the conclusions reached by Mr. Rock, and required no further consideration.

Nor am I satisfied upon a review of the totality of the material before me, on a balance of probabilities, that if the applicant is surrendered, there is a substantial risk that he will be tortured, that his safety will be threatened, that he will be subjected to inhumane prison conditions, or that he will be subjected to an unfair trial, assuming my concerns about a timely trial are met. . . . [T]he quality of the evidence does not satisfy me that Mr. Pacificador will face conditions upon his return that would, standing alone, result in his surrender violating his constitutional rights. Indeed it was the position of counsel for the applicant that it was the cumulative effect of his various allegations that would offend section 7, and that the complaints should not be viewed separately.

[30] While the applications judge dismissed several of the appellant's arguments, he did not dismiss the argument that surrendering the appellant in reliance on the Philippines' speedy trial assurance would violate the appellant's s. 7 rights. The applications judge reviewed the evidence concerning the length of the co-accused's detention and the lack of proceedings against them. By the time of Minister Rock's surrender decision, Paloy and Vegafria had been in custody for over ten years. Their trial had commenced in 1988 but had been brought to a halt after the prosecution's case and had not resumed. Javellana had been in custody for over seven years with neither a bail hearing nor the commencement of a trial against him. Similarly, the appellant's father had been in custody for over a year and a half with neither a bail hearing nor the commencement of a trial, even though he had surrendered himself into custody on an assurance from the Philippines' president that he would be afforded a bail hearing as well as his constitutional right to a speedy trial.

[31] After reviewing this evidence and the evidence concerning the Temporary Restraining Order issued, confirmed and ratified by the Supreme Court of the Philippines, the applications judge held at para. 53: [page696]

I do not pretend to have a full appreciation of the rationale for, or the significance of the procedural goings- on in this case in the courts of the Philippines. I have no view of the legal correctness of the current state of affairs, but what is uncontradicted in the record before me is this: all proceedings arising out of the Javier killing are subject to a restraining order. As a result, the trial of two of the accused, which was in the defence stage, has been halted for several years. Two other accused have been unable to have bail hearings for several years for the same reason. All of these accused remain in custody in the interim. On the face of it, the applicant will find himself in the same position if he is returned to the Philippines. It requires little analysis to come to the conclusion that to surrender a fugitive to a requesting state where he will be unable to have a bail hearing or a trial in the foreseeable future would deprive the fugitive of his right to liberty and security of the person in a manner that does not conform to the principles of fundamental justice, contrary to s. 7 of the Charter.

[32] The applications judge quoted the Supreme Court of Canada's decision in Schmidt v. R., 1987 48 (SCC), [1987] 1 S.C.R. 500, 33 C.C.C. (3d) 193, in which the court held that a surrender decision violates s. 7 where the nature of a foreign country's criminal procedures or penalties "sufficiently shocks the conscience". At paras. 53-56, the applications judge found that surrendering the appellant for extradition on the basis of the Philippines' speedy trial assurance would shock the conscience:

To return the applicant to the Philippines where he will be placed in custody to await the recommencement of a criminal proceeding that has been suspended indefinitely would shock the conscience. If any Minister thought otherwise, he or she would manifestly be wrong.

Of course, neither Minister Rock nor Minister McLellan believed that this represents the welcome awaiting the applicant. They are of the view that the assurance received from the Philippines government overcomes the difficulty. I would not second guess the Ministers' confidence in the good faith of the Philippines government. . . .

Having regard to the extreme circumspection which I am called upon to exercise, I have concluded that I can find no proper basis for concern that the death penalty assurance will not be effective in this case. The same, however, cannot be said with regard to the speedy trial assurance. The concern I have is not with the good faith of the Philippine government in giving its assurance, or the decision of the Minister in accepting that this assurance was made in good faith. What troubles me is that the assurance, on its face, does not appear to meet head on the difficulty faced by the applicant. First, I note that the prosecution in the Philippines is under the control of the state authority, and not the authority of the federal government. Second, and more important, the impediment to a bail hearing and trial being conducted should the applicant be surrendered does not appear on its face to be the direct result of state action, but rather appears to flow from a judicial determination. Presumably, the government does not control the judiciary in the Philippines. Minister Rock himself says, in his letter to [counsel for the appellant], that the "general independence and functioning of the judiciary in the Philippines" is not, in his view, in question. [page697]

Accordingly, I can only conclude that, as would be the case in Canada, the government cannot give an assurance that the court will lift its restraint order and permit the bail hearing and trial of Pacificador, should he be surrendered, to proceed expeditiously, or at all. In those circumstances, the best efforts of the federal government to complete Mr. Pacificador's trial within one year may be ineffective. I note that the President's similar undertaking to Arturo Pacificador is said to have been ineffective. I do not take this as evidence of bad faith on the part of the President. I take it as evidence that the federal government may lack the capacity to fulfil its assurance. I reach this conclusion, I might add, on the basis of all of the material that was before me on this hearing, but I would reach the same conclusion were I restricted to a consideration only of the material that was before Mr. Rock. I agree with counsel for the Minister that the additional material presented to Ms. McLellan adds nothing but details.

[33] Although the applications judge found that surrendering the appellant in reliance on the Philippines' speedy trial assurance would violate his s. 7 rights, he did not set aside the Minister's surrender order. Instead, the applications judge withheld his final determination to allow the Minister an opportunity to supplement the record. At para. 113, he held:

As I have stated, I am satisfied that to extradite the applicant to the Philippines, with the bare assurance placed in the record before me, would violate the applicant's rights, and should not be permitted. The record cries out for a better explanation of why the speedy trial assurance satisfied the Minister, or why the trial of the co-accused has been delayed. It may be that the Minister has additional reasons to be satisfied by the assurance. It may also be that the Philippines can satisfactorily explain the state of the proceedings against the co-accused, or can otherwise assure Canada that there is no cause for concern with respect to the applicant. In other words, the constitutional violation may be more apparent than real. As a result, in the unusual circumstances prevailing here, I will not set aside the surrender order on this basis immediately, but will withhold my final determination for forty-five days from the release of this judgment, or for such further time as I may permit, to afford the Minister an opportunity to supplement the record, if she is so advised, in order to respond to my concern.

[34] The Minister took the opportunity offered by the applications judge to supplement the record. The Canadian government requested further information from the Philippines regarding the delay in the trial against the appellant's co- accused. In a diplomatic note dated March 2, 1999, the embassy of the Philippines stated that the Temporary Restraining Order did not apply to the appellant because "the Court had no jurisdiction over his person at the time of the issuance" of the order. The diplomatic note also stated that the Philippines' constitution guaranteed accused persons the right to a speedy trial and the right to judicial remedies if the speedy trial right were violated. On March 3, 1999, the Solicitor General filed a motion in the Supreme Court of the Philippines to lift the Temporary Restraining Order. The Solicitor General [page698] stated that Canadian government lawyers had expressed the opinion "that the Court in Ontario will be drawn to compare the situation of Rodolfo Pacificador with that of his co-accused in the Philippines in light of the constitutional guarantee to speedy trial". Four years earlier, the Solicitor General had supported a similar motion by the appellant's father to lift the Temporary Restraining Order, but the order had not been lifted.

[35] In his second set of reasons dated May 31, 1999, the applications judge found that the foregoing material filed by the Minister did not alter his conclusion that the appellant's surrender would violate his s. 7 rights. At para. 7, the applications judge noted that the Minister had not offered any explanation of the state of proceedings against the co-accused or any additional reasons to be satisfied by the Philippines' speedy trial assurance. Instead, the Minister had simply provided "an attempt by the Philippines to otherwise assure Canada that there is no cause for concern with respect to the applicant". At paras. 8-9, the applications judge held that this attempt failed to meet his concerns:

On the face of it, the supplementary material filed by the Minister provides some assurance that the applicant will be tried expeditiously upon his return to the Philippines. Upon a closer examination, however, some uncertainty persists. My first concern relates to the question of whether the restraining orders will in fact prevent the trial of the applicant if they are not lifted. I do not question the legal soundness of the assertion by [the Justice Secretary] that the orders which have prevented the trial of the applicant's co-accused to date would not apply to him, because the courts had no jurisdiction over him at the time of the issuance of those orders. What remains unexplained, however, is why those orders have prevented the bail hearing and trial of Arturo Pacificador, who apparently was also outside of the jurisdiction of the Philippines at the time the orders were made, and did not surrender until March of 1995. My second concern relates to the question of whether the restraining orders will in fact be lifted. I do not question the good faith of the efforts of the Solicitor General and the State Counsel to have the orders lifted and the trial of the co- accused resume. I have not been advised, however, why previous efforts to lift the orders have failed, or why the outcome is likely to be different this time. As a result, I remain of the view that there is no basis for the Minister, or this Court, to be confident either that the restraining orders will not remain in effect despite the pending application to lift them, or, if they do remain in effect, that they will not in fact apply to the applicant upon his surrender, despite the good faith and best efforts of the government of the Philippines.

. . . I, of course, assume nothing. It may be entirely appropriate for the Philippines Supreme Court to refuse to lift the restraining orders. I do not pretend to know how the Court should decide that matter. All that I say is that, having regard to the history of this prosecution, it would violate the rights of the applicant to be surrendered to the Philippines without being certain that the restraining orders will not preclude a speedy trial of the charges alleged against him. [page699]

[36] Although the applications judge found that the Minister's additional material failed to meet his concerns, he reserved his decision again and gave the Minister another opportunity to file additional material. At para. 10, the applications judge held:

I note again that an application by the Solicitor General to lift the restraining order and permit the recommencement of the prosecution is pending in the Supreme Court of the Philippines. Should it be successful, and should steps then be taken to actually recommence the prosecution, my concerns would evaporate. Accordingly, and despite my enormous reservations about prolonging this application yet again, I will further reserve my judgment in this matter until September 30, 1999. On that date, the surrender order will automatically be set aside, unless on or before that date, the Minister files additional material demonstrating that the restraining order has been set aside, and steps have been taken to recommence the prosecution of the co-accused. If and when such material is placed before me, the application will be dismissed.

[37] The Minister again took the opportunity offered by the applications judge to file additional material. On July 19, 1999, the Supreme Court lifted the Temporary Restraining Order and directed the trial court to proceed with Javellana's bail hearing and the trial of the co-accused. On July 30, 1999, the trial court ordered the trial to resume on September 27, 1999. On August 13, 1999, the prosecutor was directed to commence the prosecution and trial and conclude the proceedings as early as possible.

[38] The applications judge considered this additional material in his third set of reasons, dated October 19, 1999. The Supreme Court had given no reasons for lifting the Temporary Restraining Order, and the trial that was scheduled to resume on September 27, 1999 had been adjourned to November 21, 1999. Counsel for the appellant suggested that the appellant's application be further adjourned to ensure that the trial did in fact resume. However, the applications judge rejected that suggestion. He held that adjourning the proceedings further to await developments in the Philippines would be tantamount to assuming the role of supervising the proceedings in the Philippines. He held that his concerns had been met and dismissed the appellant's application.

Issues

[39] The following issues arise on this appeal:

1. Would surrendering the appellant for extradition violate his s. 7 rights?

2. Did the applications judge err in holding that the appellant may be lawfully surrendered for extradition before his claim for refugee status is determined? [page700]

Analysis

[40] For the reasons that follow, it is my view that to surrender the appellant for extradition in the particular circumstances of this case would violate his s. 7 rights. Because of the conclusion I have reached on this issue, it is unnecessary to consider whether the applications judge erred in holding that the appellant may be lawfully surrendered for extradition before his claim for refugee status is determined.

[41] The respondent neither disputes nor admits the appellant's factual allegations. The respondent essentially rests its case upon the proposition that curial deference to the Minister's surrender decision precludes this court from allowing this appeal.

[42] It is true that a Minister's decision to surrender the appellant is entitled to deference. The Supreme Court of Canada has held that courts must be "extremely circumspect" in interfering with a Minister's surrender decision: Schmidt, supra, at p. 522 S.C.R., p. 215 C.C.C. See also Argentina (Republic) v. Mellino, 1987 49 (SCC), [1987] 1 S.C.R. 536, 33 C.C.C. (3d) 334, Kindler v. Canada (Minister of Justice), 1991 78 (SCC), [1991] 2 S.C.R. 779, 67 C.C.C. (3d) 1, and United States of America v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, 151 C.C.C. (3d) 97.

[43] However, a Minister's surrender decision is not immune from review. In Schmidt, the Supreme Court held at p. 521 S.C.R., pp. 213-14 C.C.C. that "the surrender of a fugitive to a foreign country is subject to Charter scrutiny notwithstanding that such surrender primarily involves the exercise of executive discretion." In United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, 152 C.C.C. (3d) 225, the Supreme Court distinguished the deference required for ministerial decisions concerning the violation of constitutional rights from the deference required for ministerial decisions concerning the prosecution of a fugitive. At p. 580 S.C.R., p. 265 C.C.C., the court concluded that "much less deference" is required for ministerial decisions concerning the violation of constitutional rights:

While prosecutorial discretion is at the heart of the ministerial function and attracts a high standard of deference on judicial review, much less deference is due on the issue of whether the Minister properly considered the fugitive's constitutional rights . . .

[44] The Supreme Court of Canada has held that a Minister's surrender decision violates s. 7 of the Charter where the individual would face a situation that is "simply unacceptable" or where the nature of the foreign country's criminal procedures or penalties "sufficiently shocks the conscience": United States of America v. Allard, 1987 50 (SCC), [1987] 1 S.C.R. 564 at p. 572, 33 C.C.C. (3d) 501 at p. 508 and Schmidt at p. 522 S.C.R., p. 214 C.C.C. In Schmidt, the Supreme Court held at p. 522 S.C.R., p. 214 C.C.C.: [page701]

I have no doubt either that in some circumstances the manner in which the foreign State will deal with the fugitive on surrender, whether that course of conduct is justifiable or not under the law of that country, may be such that it would violate the principles of fundamental justice to surrender an accused under those circumstances. To make the point, I need only refer to a case that arose before the European Commission on Human Rights, Altun v. Germany (1983), 5 E.H.R.R. 611, where it was established that prosecution in the requesting country might involve the infliction of torture. Situations falling far short of this may well arise where the nature of the criminal procedures or penalties in a foreign country sufficiently shocks the conscience as to make a decision to surrender a fugitive for trial there one that breaches the principles of fundamental justice enshrined in s. 7.

[45] In subsequent cases, the Supreme Court of Canada has expanded on the meaning of "simply unacceptable" and "shocks the conscience". In Kindler at pp. 849-50 S.C.R., p. 55 C.C.C., the majority of the Supreme Court held:

[T]he reviewing court must consider the offence for which the penalty may be prescribed, as well as the nature of the justice system in the requesting jurisdiction and the safeguards and guarantees it affords the fugitive. Other considerations such as comity and security within Canada may also be relevant to the decision to extradite and if so, on what conditions. At the end of the day, the question is whether the provision or action in question offends the Canadian sense of what is fair, right and just, bearing in mind the nature of the offence and the penalty, the foreign justice system and considerations of comity and security, and according due latitude to the Minister to balance the conflicting considerations.

In determining whether, bearing all these factors in mind, the extradition in question is "simply unacceptable", the judge must avoid imposing his or her own subjective views on the matter, and seek rather to objectively assess the attitudes of Canadians on the issue of whether the fugitive is facing a situation which is shocking and fundamentally unacceptable to our society.

[46] In Burns at p. 325 S.C.R., pp. 128-29 C.C.C., the Supreme Court held:

Use of the "shocks the conscience" terminology was intended to convey the exceptional weight of a factor such as the youth, insanity, mental retardation or pregnancy of a fugitive which, because of its paramount importance, may control the outcome of the Kindler balancing test on the facts of a particular case. The terminology should not be allowed to obscure the ultimate assessment that is required: namely whether or not the extradition is in accordance with the principles of fundamental justice. The rule is not that departures from fundamental justice are to be tolerated unless in a particular case it shocks the conscience. An extradition that violates the principles of fundamental justice will always shock the conscience. The important inquiry is to determine what constitutes the applicable principles of fundamental justice in the extradition context.

The "shocks the conscience" language signals the possibility that even though the rights of the fugitive are to be considered in the context of other applicable principles of fundamental justice, which are normally of sufficient importance to uphold the extradition, a particular treatment or punishment [page702] may sufficiently violate our sense of fundamental justice as to tilt the balance against extradition. Examples might include stoning to death individuals taken in adultery, or lopping off the hands of a thief. The punishment is so extreme that it becomes the controlling issue in the extradition and overwhelms the rest of the analysis.

[47] Applying that standard to the facts of this case, I have concluded that taken as a whole, the record does demonstrate that to surrender the appellant would be "simply unacceptable" as the manner in which this prosecution has been conducted in the courts of the Philippines "shocks the conscience".

[48] The appellant submits that the manner in which this case has proceeded has resulted in a failure to assess his s. 7 claim on the entirety of the record. I agree. The case has proceeded in several stages. The surrender decision was initially made by one Minister and then considered by another Minister on an expanded record. The appellant's application to quash or stay his surrender order took the unusual course of a series of adjournments to permit the respondent to further supplement the record with additional explanations and assurances. Given the complexity of the case and the manner in which it was presented, the reasons for this step-by-step procedure may be understandable. However, it is my respectful view that this procedure has had an unfortunate and unacceptable consequence. The appellant's s. 7 Charter claim has been decided bit by bit on a piecemeal basis and there has been a failure to assess the record as a whole. I agree with the appellant that he is entitled to a determination on the entire record of his claim that surrender would violate his s. 7 rights.

[49] Minister Rock refused to order the appellant's surrender without an assurance from the Philippines authorities that they would exert their best efforts to ensure that his trial was completed within one year. The applications judge found that to surrender the appellant upon that assurance would violate his s. 7 rights. The Philippines was given another chance, but was unwilling or unable to provide an adequate assurance. Given yet a third chance, the Philippines still failed to provide a reliable assurance as the trial of the co-accused was adjourned beyond the promised date for its resumption.

[50] In his first set of reasons, the applications judge stated: "The record cries out for a better explanation of why the speedy trial assurance satisfied the Minister or why the trial of the co-accused has been delayed." I agree with that statement. Regrettably, more than three years later and despite the indulgence of several opportunities to give a better explanation, none has been forthcoming. Particularly disturbing is the fact that the assurances that have been given have been unpersuasive and unreliable. [page703] This, combined with the fact that the cause of the unconscionable delay is the unexplained order of the Supreme Court of the Philippines, seriously undermines the respondent's argument that the appellant should be surrendered on the faith the Minister expressed in the Philippines' justice system. It is now apparent that the Supreme Court, the very institution to which the appellant would have to look for protection from delay and political manipulation and interference, is the cause of the unconscionable delay in proceeding with the prosecution. Neither the Philippines authorities nor the respondent has ever explained the reason for the order, the reason for its confirmation and ratification, or the reason for its continuation for more than a decade. The confirmation and ratification of the order were the result of a decree apparently made in secret. The Supreme Court repeatedly failed to respond to requests to lift the order by the appellant's co- accused, who were in detention. The order was in place for an unconscionable period of time and produced unconscionable results. The shocking and unacceptable delay in bringing the appellant's co-accused to trial and the shocking and unacceptable period of pre-trial detention and denial of bail fall far below Canadian standards.

[51] At the same time that the Temporary Restraining Order has violated fundamental rights of the appellant's co-accused, the Philippines' justice system has failed to explain why the appellant's treatment on surrender will differ from that of his co-accused. Both the Minister and the applications judge found this aspect of the case troubling. Minister Rock found it necessary to obtain assurances from the Philippines that the appellant's case would be properly expedited before he would order the appellant's surrender. The applications judge found that surrendering the appellant in reliance on the first two sets of assurances by the Philippines would violate the appellant's s. 7 rights. I agree with his findings in that regard. The Philippines' authorities failed to provide an adequate assurance that the delay and pre-trial detention of the appellant's co-accused would not be inflicted on the appellant as well. The authorities' apparent assurance that the Temporary Restraining Order would not apply to the appellant because the Supreme Court of the Philippines had no jurisdiction over him when the order was issued failed to explain why the order had prevented proceedings against the appellant's father, who was also outside the Philippines' jurisdiction when the order was issued. At best, the assurance regarding the application of the Temporary Restraining Order was unpersuasive.

[52] In my view, the Philippines' final set of assurances does not alter the conclusion that the appellant's surrender would violate his s. 7 rights. The Philippines' authorities had advised the [page704] applications judge that proceedings against the appellant's co-accused would recommence on September 27, 1999. Instead of commencing on that date, the proceedings were adjourned. When the Supreme Court of the Philippines finally lifted its Temporary Restraining Order after more than a decade, it provided no reason for doing so. For years, requests to lift the order by the appellant's co- accused remained unfulfilled and unanswered. The Supreme Court lifted the order only after the Solicitor General's motion suggesting that Ontario courts would compare the appellant's situation with that of his co-accused and only after the applications judge held that he would set aside the appellant's surrender if the Temporary Restraining Order were not lifted. I find it significant that the only arguments to catch the court's attention for over ten years were the submission that nothing else would procure the appellant's surrender and the indication from a Canadian judge that the appellant's surrender order would soon be set aside.

[53] I have focused my analysis on the serious delay and lengthy pre-trial detention of the appellant's co-accused. However, as I have explained, it is important to view this record as a whole. The initial surrender decision in 1996 and the refusal to reconsider that decision in 1999 were made on the basis of a record less complete than that before this court. The appellant makes serious allegations of political manipulation and fabrication of evidence, as well as allegations of appalling treatment to his co-accused during the lengthy period of pre-trial detention. No evidence has been led to dispute those allegations. At the very least, they establish a significant risk that the appellant will not be fairly treated upon his surrender. Minister Rock stated in his October 19, 1996 decision to surrender the appellant in the face of these allegations that "the fundamental issue is whether Canada can rely on the adequacy of the legal safeguards in the Philippines" to ensure the appellant fair treatment and fair trial. The Minister also stated that "the fundamental point is that the judiciary in the Philippines is in charge of the various proceedings" and that the proper forum for consideration of the allegations of political interference with the judicial process "is the appellate courts in the Philippines".

[54] If that expression of faith were to be assessed in the abstract, a court would hesitate to interfere with the Minister's conclusion. However I would emphasize that the appellant's case does not rest on an abstract assessment of the Philippines' justice system. Rather, the appellant's case rests on concrete evidence that in this very prosecution, there have been serious violations of the fundamental right to trial within a reasonable time and the fundamental right not to be held indefinitely in custody without bail. I find it impossible to reconcile the Minister's conclusion [page705] with the more complete record that has now been placed before this court and that was not available to the Minister. In my view, when one looks at the record as a whole, the failure of the Philippines to provide acceptable explanations of what has gone on in the past or to provide adequate assurances about what might happen in the future, seriously undermines this fundamental element of the Minister's decision.

Conclusion

[55] Ministerial decisions assessing the appropriate balance between the rights of the individual and the considerations favouring surrender are entitled to curial deference. Extradition is based upon principles of comity and mutual cooperation and respect between states. Extradition plays a vital role in the international community's effort to fight crime and to ensure those accused of serious wrongdoing are brought to trial. On the other hand, these important values are subject to the rights guaranteed by the Charter. Where an individual establishes that he or she would face a situation that would be "simply unacceptable" or that would "shock the conscience", a s. 7 claim has been established and a Ministerial surrender order must be set aside.

[56] In my view, to surrender the appellant in the circumstances of this case would be "simply unacceptable". The foreign country's criminal procedures have been interpreted and applied in this very prosecution in a manner that "sufficiently shocks the conscience" that to surrender the appellant would violate his s. 7 right not to be denied life, liberty and security of the person except in accordance with the principles of fundamental justice. The respondent makes no submissions concerning s. 1 of the Charter. Accordingly, it is my view that the appellant has established his s. 7 claim.

[57] For the foregoing reasons, I would allow the appeal and set aside the order of the applications judge and the warrant of surrender.

Appeal allowed.