DATE: 20020618 DOCKET: C33326; C33327

COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O., CRONK and GILLESE JJ.A.

IN THE MATTER OF the Extradition Act, R.S.C. 1985, Chap.E-23, as amended;

AND IN THE MATTER OF an Application by the United States of America, Requesting State, for the Extradition of J.H.K.;

AND IN THE MATTER OF an Application for Judicial Review of the decision of the Minister of Justice;

BETWEEN:

UNITED STATES OF AMERICA

Brian H. Greenspan

for the appellant

and

HER MAJESTY THE QUEEN

Catherine A. Galligan

for the respondents

and

THE HONOURABLE ANNE McLELLAN,

MINISTER OF JUSTICE

(Respondents)

and

J.H.K.

(Appellant)

Heard: April 19, 2002

On appeal from the committal order of Justice J.A. Desotti dated May 21, 1999, and on application for judicial review of the decision of the Minister of Justice to order the fugitive’s surrender, dated November 15, 1999.

McMURTRY C.J.O.:

OVERVIEW

[1] The appellant, a Canadian citizen, is charged with sexual battery in the United States. The charge relates to the appellant’s alleged sexual misconduct involving his daughter while the family was vacationing in the State of Florida. The appellant was also charged with sexual assault in Ontario for conduct involving his daughter, and subsequently pleaded guilty to the Ontario charge. He was serving a separate custodial sentence when the present extradition proceedings were commenced. On May 21, 1999, Mr. Justice J.A. Desotti committed the appellant for extradition. On November 15, 1999, the Minister of Justice ordered the surrender of the appellant to the United States, upon the appellant being granted parole or otherwise released from custody in Canada. The appellant appeals the committal order, and seeks judicial review of the Minister’s surrender order.

[2] For the reasons that follow, I would dismiss both the appeal from the committal order made by the extradition judge and the application for judicial review of the decision of the Minister of Justice.

FACTUAL BACKGROUND

[3] In early 1991, the appellant/applicant J.H.K. (the “appellant”) and his family, all of whom were Canadian citizens and residents of Canada, were vacationing in Florida. On February 11, 1991, the appellant’s wife left him alone with their seven year old daughter in the motor home in which they were travelling. When she returned a few hours later, his wife observed the appellant with his penis exposed and his daughter bent over with her face in close proximity to his penis. The daughter later disclosed that there had been other incidents of sexual abuse in Ontario and, as a result, the appellant’s wife reported the incidents to the Florida police. The daughter provided a videotaped statement to the Belle Glade Police Department describing the nature of the sexual abuse. On February 12, 1991, a warrant for the appellant’s arrest was signed by Judge Michael Miller of the Fifteenth Judicial Circuit for the State of Florida. The appellant was not arrested in Florida, and subsequently returned to Ontario. On March 1, 1991, an information was sworn charging the appellant with sexual battery upon a person less than twelve years of age, contrary to Florida Statute 794.011(2), which provides:

794.011. Sexual battery

(2) A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person less than 12 years of age in an attempt to commit sexual battery upon such person commits a capital felony, punishable as provided in ss. 775.082 and 921.141. …

[4] The penalty is set out in Florida Statute 775.082(1). Under the Statute, the mandatory minimum sentence that must be imposed upon conviction is life imprisonment without possibility of parole for 25 years, unless the sentencing proceeding results in findings by the court that the death penalty should be imposed. The Florida prosecutor stated in his affidavit that Florida case law prevents the imposition of the death penalty for violation of Florida Statute 794.011(2).

[5] The appellant’s wife and children returned to Ontario on February 14, 1991. The next day, the wife advised the Sarnia-Clearwater police of the alleged sexual abuse both in Ontario and in Florida. The daughter disclosed that the appellant had subjected her to a variety of different types of sexual touching over a period of months. As a result, the appellant was arrested and charged with sexual assault and sexual interference. The information alleged that this conduct took place “between May 1, 1990 and December 12, 1990, inclusive, at the Town of Clearwater and elsewhere in the Province of Ontario.”

[6] On June 20, 1991, the appellant pleaded guilty to the sexual assault charge before Eddy J. of the Ontario Court (Provincial Division); the sexual interference charge was withdrawn. Although the sexual assault charge detailed in the information excluded the appellant’s Florida conduct, both in terms of the date and location, the factual summary read into the record by Crown counsel to support the conviction included a brief summary of the Florida facts:

MS. FOSTER: This is a summary of information provided by Sergeant Hayward of the Sarnia Clearwater Police Force. The accused J.H.K. was married to L.K. in 1983. That marriage produced two children, a young girl, S., who is now age seven and a son, J., now five years of age. In 1988 the marriage ended in separation as a result of a criminal conviction for sexual assault. In 1988 the accused was struck by a motor vehicle and as a result was admitted to hospital for those injuries. A disability that resulted from the accident required the accused to stay in a warm climate for most of the year.

In April of 1990 the accused returned from the Florida area to a residence … in the City of Sarnia. In September of 1990 the accused moved into a residence …, Sarnia with his mother M.K.

On December 12, 1990, the accused, his ex-wife L.K. and their two children left for a vacation to the Florida area. As the motor vehicle they were driving broke down L.K. and the children were forced to return to the Sarnia area. On January 22, 1991 the motor vehicle was repaired and the vacation to Florida was resumed. On February 11th, 1991 the family was at a campsite in Belle Glade, Florida. L.K. entered the motor home in which they were travelling and found the accused naked and learned from the daughter S. that she had been performing fellatio on her father, the accused.

L.K. demanded to be driven to the airport in Miami Springs, Florida and while awaiting [sic] for a plane flight home learned that several similar acts had occurred in Florida while vacationing and similar sexual acts had occurred while in the Sarnia, Clearwater area.

L.K. returned to Belle Glade and a video taped disclosure of sexual abuse was made to an official of the Belle Glade Police Department and as a result a charge of Sexual Battery warrant was issued for J.H.K., the accused. On February 14, 1991 L.K. and her children flew back to Sarnia and on the 15th of February, 1991 L.K. advised the Sarnia Clearwater Police Force of the alleged sexual abuse both here and in Florida.

On February 15th, 1991 the young lady, S., was examined by Doctor C., a paediatrician here in Sarnia. He concluded that there was a reddening and thickening of S.’s hymen and felt this was caused by a rubbing of her vagina. S.’s anus revealed dilation and strongly suggested digital penetration to her anus.

On February 20th, 1991 a video taped disclosure of S. was conducted at the Children’s Aid Society office in the Village of Point Edward. S. disclosed that the accused, during a period of time while at … in the then Town of Clearwater, took S. to a bedroom in the basement level of the home. There the accused forced S. to perform fellatio in which ejaculation took place. Also the accused on more than ten occasions touched her vagina and anus area causing the reddening the doctor revealed. The victim disclosed that she would cry and tell her dad, the accused, not to do this type of thing. The accused told S. not to tell anyone about what was happening. As a result of this disclosure, a warrant was requested for the accused’s arrest charging him with one count of sexual assault and another count of sexual interference.

On May 10th, 1991 at 5:40 p.m. the police attended at … in the City of Sarnia Clearwater in an attempt to arrest the accused. At 6:33 p.m. the accused was located in the attic of the home and subsequently placed under arrest for the outstanding charges. At the same time the accused was given his rights to counsel which he replied he understood. He was subsequently taken before a Justice of the Peace and later remanded into custody.

Those are the facts relating to the offence Your Honour.

MR. FOREMAN [Defence counsel]: Those facts are in accordance with my instructions.

THE COURT: Upon his plea and his election and upon the facts as read, I find him guilty.

[7] The sentencing proceeding was adjourned to allow time for a pre-sentence report to be prepared. In their submissions, both counsel agreed that a sentence of two to three years imprisonment was warranted. In sentencing the appellant to 30 months imprisonment, in addition to 3 ½ months spent in pre-sentence custody, the sentencing judge made no reference to the appellant’s Florida conduct. Eddy J. said:

…You now come back before the court within a matter of months with a much more serious set of facts and circumstances, to wit: the continued sexual assault upon your own daughter at a very vulnerable age, six or seven years of age and the variety and extent and nature of those sexual assaults, which I will not detail, but which were read into the record, are completely abhorrent to not only the other members of your family, but in my judgment to the whole community and clearly calls for a strong, general deterrent.

This is certainly on the more serious end of this type of assault and that can be seen from the impact and from the facts read into the record.

[8] The appellant served his sentence of imprisonment. No formal request for his extradition was made until 1997. At the time the United States requested the appellant’s extradition, he was in custody in relation to other Canadian criminal matters, and the extradition hearing was delayed pending the resolution of the new charges. Since that time, the appellant was the subject of a dangerous offender proceeding, and he is presently serving a seven year sentence of imprisonment that was imposed pursuant to the legislation then in effect.

The Extradition Hearing

[9] The United States requested the arrest and extradition of the appellant by Diplomatic Note No. 449, dated September 26, 1997. The documents supporting the request for extradition included the Florida information, dated March 1, 1991, charging the appellant with sexual battery, a probable cause affidavit sworn by the investigating officer, and the affidavits of the appellant’s daughter and ex-wife. The extradition hearing commenced on May 20, 1999, at Sarnia, Ontario, before Desotti J. of the Superior Court of Justice. It was the appellant’s position that the extradition request should be stayed for the following reasons:

(i) extradition was barred by Article 4(1)(i) of the Treaty (as hereinafter defined) as the offence did not constitute an “extraditable offence”,

(ii) that extradition would violate the appellant’s rights as guaranteed by sections 6 and 7 of the Canadian Charter of Rights and Freedoms, and

(iii) that the affidavit evidence submitted by the requesting State did not comply with s. 16 of the Extradition Act and was not properly authenticated pursuant to Article 10(2) of the Treaty.

[10] In support of the stay application, the appellant swore an affidavit in which he deposed that he had entered his guilty plea in Ontario in 1991 on the understanding that it would effectively resolve the outstanding charges against him, both in Sarnia and in Florida.

[11] On May 21, 1999, Desotti J. committed the appellant for extradition. He rejected the appellant’s argument that the documents forwarded by the requesting State had not been properly authenticated. In addition, Desotti J. concluded that an extradition judge has a limited role to play in the extradition process, and that he neither had jurisdiction to consider the Charter issues raised by the appellant, nor to determine whether extradition was barred by Article 4(1)(i) of the Treaty. Notwithstanding these conclusions, the extradition judge did comment on the arguments advanced by the appellant. Desotti J. said:

The facts as read in prior to sentence on this charge on June 20th, 1991, unequivocally reflected the circumstances of a sexual assault which occurred in Belle Glade, Florida. The purpose of this fact in the sentencing was clearly to convey to the sentencing judge the ongoing nature of the sexual assault and was to be considered by the same sentencing judge as an aggravating factor.

The Crown in Ontario could not have laid a separate sexual offence arising from the accused’s conduct in Florida with the location clearly out of the province. Nevertheless, to avoid this obvious limitation and to bring closure to the process, this fact was read into court before the trial judge and sentencing judge in Ontario. No competent defence counsel would have allowed this additional reference to a sexual offence in Florida without viewing this as a way of effecting closure.

The sentencing in Ontario, and the reference to the separate occurrence in Florida, was to a greater extent to ‘clear the deck’ of criminality with respect to the accused and his criminal sexual conduct with this particular victim.

As stated, my role or function is limited. I am, nevertheless, aware of the realities of the earlier trial, plea of guilt, conviction and sentencing and have attempted to reflect in these comments, the sense, the force and the rationale for the argument presented before me by counsel for the applicant.

Decision of the Minister

[12] The appellant made written submissions to the Minister of Justice, dated June 16, 1999, requesting that she decline to order his surrender. It was submitted that surrender should be denied on the basis of Article 4(1)(i) of the Treaty because the appellant had already been punished in Canada for the offence for which extradition was sought, and that the continuation of the extradition proceedings would be fundamentally unjust and in violation of s. 7 of the Charter. It was also submitted that extradition would violate the terms of an alleged plea agreement made with the Crown in 1991, to the effect that a plea of guilty to the sexual assault charge in Canada would end all the charges against the appellant relating to his daughter both in Canada and in Florida. Finally, the appellant submitted that extraditing him to the United States, when he had been imprisoned in Canada for the very same offence, would violate his right to remain in Canada as guaranteed by s. 6(1) of the Charter.

[13] Counsel for the Department of Justice prepared a summary of the case and the appellant’s written submissions for the Minister. Counsel for the appellant was sent a copy of the summary and given an opportunity to submit written comments. A supplementary summary detailing the appellant’s comments was also prepared for the Minister’s consideration. In addition, counsel for the Department of Justice corresponded with Crown counsel in Lambton County who had been involved in the appellant’s 1991 plea and sentencing proceedings. Crown counsel advised the Minister that she had not intended for the guilty plea to encompass the Florida conduct, and that no undertaking was given to that effect. It was submitted that the Florida allegations were simply read into the record by way of narrative and to explain how the matter had come before the Court. The appellant was not given an opportunity to reply to Crown counsel’s statements.

[14] The Minister notified the appellant of her decision to order his surrender to the United States by letter dated November 15, 1999. In ordering the appellant’s surrender, the Minister was of the opinion that Article 4(1) of the Treaty did not apply in the circumstances as Canada did not have the jurisdiction to prosecute the appellant for his Florida conduct. She further stated that the appellant’s section 7 rights were not violated as neither the Crown nor the defence mentioned in their submissions at trial that the Court was dealing with the Florida conduct. The Minister noted that the sentencing judge never specifically referred to the Florida conduct in his reasons for judgment, nor did he mention that he was taking it into consideration in imposing sentence. The Minister also rejected the argument that the surrender should be denied because the prosecution had violated the terms of the alleged plea agreement.

[15] In addition, the Minister concluded that, having regard to the appellant’s status as a repeat offender, the decision to surrender him to face the possible imposition of a twenty-five year sentence would not shock the conscience of Canadians. Finally, the Minister determined that, given that the act for which extradition was sought was alleged to have occurred entirely in the United States, s. 6(1) of the Charter did not preclude the appellant’s surrender.

ISSUES

[16] The issues on the appeal and application for judicial review can be summarized as follows:

(1) Did the extradition judge err by concluding that the requesting State had presented a prima facie case?

(2) Is the appellant’s extradition barred by virtue of Article 4(1)(i) of the Treaty, on the basis that the appellant was punished in Ontario for his Florida conduct?

(3) Would surrender of the appellant to the requesting State violate his rights as guaranteed by sections 6 and 7 of the Charter?

ANALYSIS

(1) Did the extradition judge err by concluding that the requesting State had presented a prima facie case?

[17] The appellant submitted that the extradition judge erred in ordering the appellant’s extradition, on the basis that the requesting state did not present a prima facie case for the appellant’s extradition. The appellant contended that the only evidence adduced at the extradition hearing, the affidavits of the appellant’s ex-wife and daughter, did not support the charge in the Florida information that the appellant committed sexual battery against his daughter on February 11, 1991. These affidavits only alleged a sexual battery on or about January 11, 1991, one month earlier than alleged in the information. As well, the appellant submitted that there was no jurisdiction to amend the American charging document, and therefore the extradition judge was forced to apply the facts adduced against the charging document before him in order to determine whether a prima facie case had been presented.

[18] The respondent argued that the extradition judge only had to examine the evidence of the appellant’s conduct in light of domestic law, and that the judge did not need to be concerned with foreign law at all (see United States of America v. McVey (1993), 1992 48 (SCC), 77 C.C.C. (3d) 1 at 20, 29-30, 33 and 39 (S.C.C.)). Since “foreign law” necessarily includes the foreign charging document, the respondent submitted that it is not the function of the extradition judge to examine the wording of foreign offences or the foreign complaint or indictment and assess whether there is sufficient evidence of each count as specified, since to do so would be to measure the evidence against foreign law rather than simply considering Canadian offences as mandated by McVey, supra. In addition, in oral argument the respondent relied on the decision of Rosenberg J.A. in United States of America v. Yang (2001), 2001 20937 (ON CA), 56 O.R. (3d) 52 (C.A.) for the proposition that the court is not to consider the reliability or credibility of affidavits and other evidence at an extradition committal hearing.

[19] I am of the view that this type of mistake should not be a bar to extradition. The affidavits submitted by the requesting state in support of the extradition request specified that the alleged sexual battery took place on or about January 11, 1991. The material before us indicates that this was an error, and that the alleged offence took place on February 11, 1991, and counsel for the respondent conceded this point at the extradition hearing. As La Forest J. said in R. v. Schmidt (1987), 1987 48 (SCC), 33 C.C.C. (3d) 193 at 215-216 (S.C.C.):

The present system of extradition works because courts give the treaties a fair and liberal interpretation with a view to fulfilling Canada’s obligations, reducing the technicalities of criminal law to a minimum and trusting the courts in the foreign country to give the fugitive a fair trial, including such matters as giving proper weight to the evidence and adequate consideration of available defences and the dictates of due process generally.

[20] In the present case, the appellant is relying on the error in relation to the date of the alleged offence. However, there is clearly no prejudice to the appellant. The factual basis for the allegation is clearly set out in the affidavits and amply supports the charge. Apart from the error in dates, the evidence adduced was sufficient to satisfy the test in United States of America v. Sheppard (1976), 1976 8 (SCC), 30 C.C.C (2d) 424 (S.C.C.). This was conceded by counsel for the appellant at the extradition hearing, who stated: “The only challenge I have is as far as the date.” Extraneous evidence suggests that the evidence that will be led by the prosecution at trial will relate to events that took place in February 1991 and the appellant knows the case he would have to meet.

(2) Was the appellant punished in Ontario for his Florida conduct?

[21] The appellant submitted that the extradition judge and Minister of Justice both erred by failing to find that the appellant’s extradition was barred by virtue of Article 4(1)(i) of the Treaty on Extradition Between the Government of Canada and the Government of the United States of America (the “Treaty”). Article 4(1)(i) provides that:

ARTICLE 4

(1) Extradition shall not be granted in any of the following circumstances:

(i) When the person whose surrender is sought is being proceeded against, or has been tried and discharged or punished in the territory of the requested State for the offense for which his extradition is requested.

[22] It is common ground that the appellant entered a guilty plea and was punished in Ontario for successive acts of sexual assault against his daughter. The appellant asserts that his Florida conduct was addressed on the record as a factual basis for the conviction and as an aggravating factor on sentence, and that he cannot now be extradited to face charges that are based on conduct for which he has already been convicted and punished.

(i) The Extradition Judge’s Decision

[23] The appellant submits that the extradition judge’s decision was in error as he failed to consider whether the appellant’s extradition was barred by Article 4(1)(i) of the Treaty. It is submitted that the extradition judge would have found that the appellant’s extradition was barred by operation of the Treaty, had he considered the issue. The appellant bases this submission on the extradition judge’s finding that the Florida conduct was considered as an aggravating factor on sentencing, and that the sentencing was intended to “clear the deck of criminality” with respect to the appellant’s conduct involving his daughter.

[24] In my view the extradition judge was correct when he expressed the view that his role in the extradition proceeding was a limited one. In his reasons he stated as follows:

In an extradition hearing, as indicated in the decisions in Republic of Argentina v. Mellino, U.S.A. v. Dyner, and in Regina v. Schmidt, my principal concern is to determine whether there is a prima facie case that an alleged extradition crime was committed and if so, to order the fugitive committed for surrender pursuant to s. 18 of the Extradition Act.

Questions of autre fois acquit or res judicata are matters that must be considered by the executive branch of the government, subject to ultimate judicial review if those considerations are not properly resolved.

The issue of Charter defences or potential abuse of process are other matters that must be considered by the executive or by an appellate court upon a judicial review. In short, an extradition judge’s authority under s. 18 of the Extradition Act is limited to determining whether the fugitive’s act would constitute a crime in Canada…

[25] In my opinion the record of the sentencing of the appellant that was before the extradition judge does not support a finding that the sentencing judge took into consideration the appellant’s conduct towards his daughter in Florida. In any event, the conclusion of the extradition judge was correct when he did not apply Article 4(1) of the Treaty notwithstanding his finding that the appellant was punished in Ontario for the offence for which his extradition was requested.

(ii) The Minister’s Decision

[26] The appellant submitted that the Minister of Justice erred by refusing to deny the appellant’s surrender when she ignored the extradition judge’s findings in relation to the appellant having been punished for his Florida conduct and in her conclusion that Article 4(1)(i) of the Treaty did not apply in the circumstances of this case. The Minister said:

The argument has been made that I should deny surrender on the basis of article 4(1)(i) of the Treaty on Extradition between Canada and the United States because J.H.K. has already been punished in Canada for the offence for which extradition is sought by the United States.

In my view, no issues of double jeopardy arise under Canadian law in this case. Canada did not have jurisdiction to prosecute J.H.K. for the alleged offence which took place outside of Canada.

The charge which was disposed of in Canada related to alleged conduct that took place here. Hence, article 4(1)(i) of the Treaty does not apply in these circumstances to bar extradition.

[27] As stated by Laskin J.A. in United States of America v. Whitley (1994), 1994 498 (ON CA), 94 C.C.C. (3d) 99 at 111 (Ont. C.A.), aff’d, 1996 225 (SCC), 104 C.C.C. (3d) 447 (S.C.C.)), “[t]he comments of the extradition judge are not, of course, binding on the Minister.” Nor are the extradition judge’s “findings” binding on us. It also should be noted that the extradition judge did not have the benefit of all of the information that was before the Minister, including the documents submitted by the Crown counsel who appeared before the sentencing judge to the effect that it was not intended that the guilty plea encompass the Florida conduct.

[28] In addition, there is no information in the record before us from the defence counsel who represented the appellant at the plea and sentencing proceedings in Ontario which supports the appellant’s statement that he understood that a plea of guilty to the Ontario sexual assault charge would “effectively end” all the outstanding charges against him.

[29] In conclusion, I do not find any error on the part of the Minister in concluding that Article 4(1)(i) of the Treaty does not apply in the circumstances of this case.

(3) Constitutional issues

(i) Would the surrender of the appellant violate his rights under [s. 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[30] The appellant submitted that the extradition judge and the Minister of Justice both erred by failing to properly consider whether extradition in the circumstances of this case was contrary to s. 7 of the Charter. Section 7 provides as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In particular, the appellant contended that his surrender would be contrary to the principles of fundamental justice, having regard both to the issue of double jeopardy and also the severity of the penalty that he would face in Florida. I have already concluded that the appellant was not punished in Ontario for his conduct while in Florida, and I will now address the appellant’s section 7 argument as it concerns the severity of the minimum sentence in Florida.

[31] It is submitted by the appellant that the extradition judge had jurisdiction to deal with the s. 7 Charter issue, insofar as s. 7 may relate to the severity of the sentence. The appellant relied on the decisions of the Supreme Court of Canada in United States of America v. Cobb (2001), 2001 SCC 19, 152 C.C.C. (3d) 270 and United States of America v. Kwok (2001), 2001 SCC 18, 152 C.C.C. (3d) 225 for this proposition. In Cobb, Arbour J. said at pp. 281-282:

I concluded in Kwok, supra, that the Charter jurisdiction of the committal court must be assessed in light of the court’s limited function under the Act. This function only extends to the determination of whether the foreign authority has put forward sufficient admissible evidence to make out a prima facie case against the fugitive.

The extradition judge is therefore competent to grant Charter remedies, including a stay of proceedings, on the basis of a Charter violation, but only insofar as the Charter breach pertains directly to the circumscribed issues relevant at the committal stage of the extradition process.

[32] And at p. 285 Arbour J. states:

Section 7 permeates the entire extradition process and is engaged, although for different purposes, at both stages of the proceedings. After committal, if a committal order is issued, the Minister must examine the desirability of surrendering the fugitive in light of many considerations, such as Canada’s international obligations under the applicable treaty and principles of comity, but also including the need to respect the fugitive’s constitutional rights. At the committal stage, the presiding judge must ensure that the committal order, if it is to issue, is the product of a fair judicial process.

[33] I am of the view that the extradition judge was correct in not applying s. 7 in the circumstances of this case. As expressed by Arbour J. in Cobb, supra, the extradition judge’s jurisdiction to grant Charter remedies is generally limited to the circumscribed issues relevant at the committal stage of the extradition process, including determining whether the hearing is conducted in accordance with the principles of fundamental justice. However, when it comes to considering whether the severity of the potential penalty to be imposed would breach s. 7 of the Charter, that issue is not for the extradition judge to determine but should be left for the Minister’s consideration.

[34] In ordering the appellant’s surrender, the Minister of Justice stated as follows:

…[I]t is my opinion that in the particular circumstances of this case, a decision to surrender J.H.K. would not “shock the conscience of Canadians” such that it would infringe section 7 of the Charter. J.H.K., a repeat offender, is wanted to stand trial in the United States for an alleged sexual assault upon his eight-year-old daughter. It is my view that if J.H.K. were to be sentenced in Canada on these facts, given his prior criminal record, he would very likely face a lengthy custodial sentence. Therefore, considering the circumstances of this particular alleged offender and offence, I am of the view that surrender to face possible imposition of a twenty-five year sentence would not shock the conscience of Canadians.

[35] The appellant submitted that the Minister erred in finding that the appellant’s surrender would not shock the conscience of Canadians, in circumstances in which a life sentence with no parole eligibility for twenty-five years would be imposed upon conviction. The appellant placed particular reliance upon the following factors:

(i) That the same conduct was already considered as an aggravating factor in the imposition of a penitentiary sentence;

(ii) The severity of the sentence that would apply to a single act in Florida, as contrasted with the more than ten individual sexual assaults for which the appellant was sentenced to a term of imprisonment of 30 months in Ontario;

(iii) That the appellant and his family were Canadian citizens and residents vacationing in the United States when the conduct arose;

(iv) That the extradition judge was of the opinion that the appellant had already been punished for the Florida conduct; and

(v) There was a six year, seven month delay between the date the warrant was issued and when the requesting State sought the appellant’s extradition.

[36] The respondent submitted that the Supreme Court of Canada has repeatedly upheld surrender decisions where the person sought was facing lengthy mandatory minimum sentences. In addition, individuals who choose to commit an offence in a foreign jurisdiction generally must accept the local law, procedure and punishments which the foreign state applies to its own residents. Canada should seek to avoid being a safe haven given its more lenient sentences. The respondent also submitted that the punishment in question is not so severe that it would “shock the conscience” of Canadians, relying on the examples of such punishment set out by Arbour J. in United States of America v. Burns (2001), 2001 SCC 7, 151 C.C.C. (3d) 97 (S.C.C.) at para. 69.

[37] The test to be applied in assessing whether surrender of the appellant in the present circumstances would violate s. 7 of the Charter on account of the penalty that the appellant would face in the foreign jurisdiction was set out by McLachlin J. in Kindler v. Canada (Minister of Justice) (1991), 1991 78 (SCC), 67 C.C.C. (3d) 1 (S.C.C.). McLachlin J. said at p. 55:

The test for whether an extradition law or action offends s. 7 of the Charter on account of the penalty which may be imposed in the requesting state, is whether the imposition of the penalty by the foreign state “sufficiently shocks” the Canadian conscience: Schmidt, per La Forest J. at p. 214. The fugitive must establish that he or she faces “a situation that is simply unacceptable”: Allard, supra, at p. 508. Thus, the 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 Canadian on the issue of whether the fugitive is facing a situation which is shocking and fundamentally unacceptable to our society.

[38] Recently, in United States of America v. Burns, supra, the Supreme Court of Canada affirmed that the proper analytical approach for assessing the potential consequences of extradition under s. 7 of the Charter was set out in the Court’s earlier decisions in Kindler v. Canada (Minister of Justice), supra, and Reference Re Ng Extradition (Can.) (1991), 1991 79 (SCC), 67 C.C.C. (3d) 61 (S.C.C.). The Court commented at pp. 128-129:

While we affirm that the “balancing process” set out in Kindler and Ng is the correct approach, the phrase “shocks the conscience” and equivalent expressions are not to be taken out of context or equated to opinion polls. The words were intended to underline the very exceptional nature of circumstances that would constitutionally limit the Minister’s decision in extradition cases. The words were not intended to signal an abdication by judges of their constitutional responsibilities in matters involving fundamental principles of justice.

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 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.

[39] While decisions of the Minister are subject to judicial review, the courts should only intervene in exceptional circumstances. In Republic of Argentina v. Mellino (1987), 1987 49 (SCC), 33 C.C.C. (3d) 334 (S.C.C.), La Forest J. said at p. 353:

Not only are the actions of Canadian officials in relation to extradition proceedings subject to review under the Charter, so too as I noted in Schmidt, supra, is the executive’s exercise of discretion in surrendering a fugitive. However, this jurisdiction, as I there observed, must be exercised with the utmost circumspection consistent with the Executive’s pre-eminent position in matters of external relations. The courts may intervene if the decision to surrender a fugitive for trial in a foreign country would in the particular circumstances violate the principles of fundamental justice. But, as already noted, it does not violate such principles to surrender a person to be tried for a crime he is alleged to have committed in a foreign country in the absence of exceptional circumstances.

[40] There are a number of reported judgments in which Canadian courts upheld decisions of the Minister to surrender fugitives to the United States to face lengthy prison terms. In United States of America v. Whitley, supra, the appellant faced mandatory minimum sentences of 20 years and 10 years imprisonment without eligibility for parole for his role in a marijuana exportation and distribution scheme. Whitley challenged the Minister’s surrender order on the ground that it violated his rights under s. 7 of the Charter based on the length of the mandatory minimum sentences he would face in the United States. This Court dismissed Whitley’s appeal and application for judicial review, and the Supreme Court of Canada adopted the reasons of Laskin J.A. in dismissing a further appeal. Laskin J.A. said at p. 118:

The appellant submits that mandatory minimum sentences of 20 years and 10 years for offences involving not hard drugs but marijuana violate our principles of fundamental justice. The scope for denying extradition on this basis is narrow. The Supreme Court of Canada has indicated that only where the criminal procedures or penalties that the fugitive would face in a foreign country “shock the conscience” or are “simply unacceptable” or are fundamentally, unjust, should extradition be refused: see Kindler, supra. To paraphrase McLachlin J. in Kindler (at p. 56 C.C.C., p. 492 D.L.R.), the issue in this case is not whether a 20-year mandatory minimum sentence for the conduct alleged against the appellant would be constitutional or even desirable in Canada, but whether sending the appellant to face such a sentence in the United States offends our sense of what is fair and just.

[41] A similar argument was rejected by the Supreme Court of Canada in United States of America v. Jamieson (1994), 1994 5920 (QC CA), 93 C.C.C. (3d) 265 (Que. C.A.), rev’d, 1996 224 (SCC), 104 C.C.C. (3d) 575 (S.C.C.). Jamieson, who faced 20 to 30 years imprisonment in Michigan for trafficking in 10 ounces of a mixture containing cocaine, argued that the Minister’s surrender order violated his rights under s. 7 of the Charter in light of the constitutional prohibition against cruel and unusual punishment found in s. 12 of the Charter. In a dissenting judgment, ultimately approved by the Supreme Court of Canada, Baudouin J.A., who would have dismissed Jamieson’s appeal, said at p. 270:

The issue is not to extol the virtues of our own system (much more liberal, it goes without saying), nor to put on trial the American system (very repressive), but only to decide whether the law and the justice system which will be applied to the person who will be extradited are unacceptable to our conscience.

[42] In the letter notifying the appellant of her decision, the Minister referred to the tests set out in the leading cases of Kindler v. Canada (Minister of Justice), supra, Republic of Argentina v. Mellino, supra and R. v. Schmidt, supra, and considered the specific circumstances of this case. She concluded that surrender of the appellant to face possible imposition of a twenty-five year sentence would not shock the conscience of Canadians. Although I am of the view that the imposition of a life sentence without parole for twenty-five years is extremely severe in the circumstances of this case, I am unable to conclude that the sentence would “shock the conscience” or be “simply unacceptable” given the horrific nature of the assault on the appellant’s seven year old daughter in Florida.

(ii) Would surrender violate the appellant’s rights under [s. 6](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[43] Finally, the appellant submitted that the Minister of Justice erred by failing to properly consider that surrender of the appellant would be an unjustified infringement of his rights as guaranteed by s. 6 of the Charter. In her decision, the Minister stated as follows:

In my view, nothing in section 6(1) of the Charter would preclude surrender in this case. J.H.K. has been charged and is wanted to stand trial in the State of Florida for sexual abuse of a child. The act for which his extradition is sought is alleged to have occurred entirely in the United States. Neither article 17 bis nor the Cotroni case is applicable, given that Canada has no jurisdiction to prosecute for the alleged conduct in Florida.

[44] Our courts have confirmed on numerous occasions that extradition, while a prima facie infringement of the right to remain in Canada guaranteed by s. 6(1) of the Charter, is a reasonable limit that can be justified under s. 1 of the Charter: see United States of America v. Cotroni (1989), 1989 106 (SCC), 48 C.C.C. (3d) 193 (S.C.C.); United States of America v. Burns, supra.

[45] However, a person whose extradition is sought can submit that, in the circumstances of the case, a surrender order would be an unjustified infringement of s. 6(1) if, for example, prosecution in Canada would be an equally viable option: see United States of America v. Kwok, supra, at 256 (S.C.C.). The appellant relied on the following statement of La Forest J. in Cotroni, supra at p. 225:

Of course, the authorities must give due weight to the constitutional right of a citizen to remain in Canada. They must in good faith direct their minds to whether prosecution would be equally effective in Canada, given the existing domestic laws and international co-operative arrangements. They have an obligation flowing from s. 6(1) to assure themselves that prosecution in Canada is not a realistic option.

In Cotroni, the Supreme Court upheld extradition of two fugitives as being a reasonable limit on their rights under s. 6(1) of the Charter even though the fugitives had never been in the requesting state, all of their alleged criminal activities had been carried out in Canada, and both could have been charged with criminal offences in Canada.

[46] It is clear that the Minister was correct in concluding that prosecution in Canada was not a viable option for conduct that occurred in Florida. The surrender of the appellant in these circumstances represents a reasonable limit on his rights under s. 6(1) of the Charter.

CONCLUSION

[47] I would dismiss the appeal and the application for judicial review.

_____ “R. Roy McMurtry C.J.O.”

_____ “I agree. E. A. Cronk J.A.”

_____ “I agree. Eileen E. Gillese J.A.”

Released: June 18, 2002

“RRM”