Adam v. United States of America et al. [Indexed as: Adam v. United States of America]
64 O.R. (3d) 268
[2003] O.J. No. 1244
Docket Nos. C38889 and M29275
Court of Appeal for Ontario
Catzman, Doherty and Goudge JJ.A.
April 15, 2003
Extradition -- Charter of Rights and Freedoms -- Fundamental justice -- Minister of Justice refusing to amend surrender order to make it conditional upon fugitive receiving enhanced credit in United States for his five years of pre-trial custody in Canada -- American legislation guaranteeing that accused would receive some credit for pre-trial custody but not clear if it would be enhanced -- No guarantee in Canada that accused will receive more than one-for-one credit for pre-trial custody -- No right to demand more than guaranteed in Canada -- Refusal to reconsider or amend surrender order not violating fugitive's rights under s. 7 of Charter -- Canadian Charter of Rights and Freedoms, s. 7.
Extradition -- Jurisdiction -- Minister ordering applicant surrendered for extradition to United States -- Application for judicial review of surrender order dismissed -- Applicant applying for leave to appeal to Supreme Court of Canada -- While leave application pending, applicant asking Minister to reconsider decision and to make applicant's surrender conditional on receipt of assurances that applicant would receive enhanced credit in United States for pre-trial custody in Canada -- Minister refusing -- Court of Appeal having jurisdiction to hear application for judicial review of that refusal -- Review jurisdiction not restricted to Minister's initial surrender order.
The United States of America sought to extradite the applicant, a Canadian citizen, to stand trial in Florida on charges of conspiracy to commit mail fraud, wire fraud, money laundering and related offences. The applicant was arrested pursuant to a warrant of apprehension in August 1997. He was ordered committed for surrender in 1997 and the Minister of Justice ordered his surrender in 1998. The order of the extradition judge was set aside on appeal. Following a new hearing, the applicant was ordered committed for surrender in 2000 and the Minister ordered his surrender to the United States. His appeal from the committal order and application for judicial review of the Minister's surrender order were dismissed. While an application for leave to appeal to the Supreme Court of Canada was pending, counsel for the applicant asked the Minister to make the applicant's surrender conditional on the Minister receiving assurances that the applicant would be given enhanced credit in the United States for his five years of pre-trial custody in Canada. The Minister refused to seek such assurances. The applicant brought an application for judicial review of that decision, arguing that his rights under the Canadian Charter of Rights and Freedoms would be violated by his surrender without the assurances sought. The Minister moved to quash the application on the basis that the court had no jurisdiction to hear it, as the court's review jurisdiction extended only to the Minister's initial surrender order, not to a decision made following a request for reconsideration.
Held, the motion to quash and the application for judicial review should both be dismissed.
The jurisdiction of the court is to hear an application for judicial review "in respect of" the Minister's decision under s. 40 of the Extradition Act, S.C. 1999, c. 18. That jurisdiction is not confined only to judicial review of the Minister's [page269] s. 40 decision. This application was clearly in respect of the Minister's s. 40 decision, as it challenged the Minister's refusal to amend that decision.
If convicted in the United States, the applicant was apparently entitled to some credit for his pre-trial custody, although there was no guarantee that the credit would be more than one-for-one. However, there is no guarantee of enhanced credit for pre-trial custody in Canada. It could not be said that a foreign sentencing regime that does not contain such a guarantee produces unacceptable results. The Minister's refusal to seek an assurance of enhanced credit for pre-trial custody was not "simply unacceptable", and did not shock the conscience. The refusal did not violate the applicant's rights under s. 7 of the Charter.
APPLICATION for judicial review of a decision of the Minister of Justice refusing to amend a surrender order.
Cases referred to Pacificador v. Canada (Minister of Justice) (2002), 2002 41595 (ON CA), 60 O.R. (3d) 685, 216 D.L.R. (4th) 47, 97 C.R.R. (2d) 20, 166 C.C.C. (3d) 321, 6 C.R. (6th) 161 (C.A.); R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, 184 D.L.R. (4th) 385, 252 N.R. 332, 143 C.C.C. (3d) 129, 32 C.R. (5th) 58 (sub nom. R. v. W. (L.W.)); 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 (sub nom. United States v. Burns) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 6, 7, 12 Extradition Act, S.C. 1999, c. 18, ss. 40, 42, 57, 62 18 U.S.C. 3585
Edward L. Greenspan, Q.C., Danny Kayfetz and Vanessa Christie, for appellant. Bradley Reitz, for respondent.
The judgment of the court was delivered by
[1] GOUDGE J.A.: -- The applicant, Richard Adam, is a Canadian citizen. The respondent, the United States of America, seeks to extradite him to stand trial in Florida on charges of conspiracy to commit mail fraud, wire fraud, money laundering, and related offences.
[2] The first chapter in this extradition story began with the applicant's arrest on August 22, 1997. The last chapter began on December 1, 2000 when the Minister of Justice ordered the applicant's surrender to the United States. After failing in his attempt to judicially review that order, Mr. Adam sought to have the Minister of Justice amend it to make it conditional on receiving assurances that Mr. Adam would be given enhanced credit in the United States for the five years he has spent in pre-trial custody in Canada. [page270]
[3] Mr. Adam brings this application for judicial review of the Minister's refusal to amend his order. The Minister moves to quash the application on the basis that the court has no jurisdiction to hear it.
[4] For the reasons that follow, I conclude that this court has jurisdiction to hear the application for judicial review, but that the application must be dismissed.
The Background
[5] This matter has a tortuous history. In outline, it started on August 22, 1997 when the applicant was arrested pursuant to a warrant of apprehension. He was taken first to the Windsor County Jail. Several months later, he was transferred to the Toronto (Don) Jail. He made a number of unsuccessful bail applications, and as a result, he has been held there ever since. Thus he has been in custody for some five and one-half years, in the crowded and adverse conditions all too typical of holding jails.
[6] In October 1997, the extradition judge ordered that the applicant be committed for extradition and, in March of 1998, the Minister of Justice ordered his surrender to the United States. In April of 1998, this court set aside the order of the extradition judge and ordered a new hearing, which rendered moot any judicial review of the Minister's surrender order.
[7] In July 2000, following the new hearing, the extradition judge ordered committal, and on December 1, 2000, the Minister ordered the applicant to be surrendered to the United States.
[8] The applicant appealed the order of committal and sought judicial review of the Minister's surrender order. On October 30, 2001, both were dismissed by this court. On October 3, 2002, the Supreme Court of Canada refused leave to appeal.
[9] While that application for leave was pending, Mr. Greenspan, who had been newly retained by the applicant, wrote to the Minister on July 5, 2002 making fresh submissions with respect to surrender. He submitted that the applicant's surrender should take place only on condition that the Minister receive assurances that the applicant would be given enhanced credit in the United States for his five years spent in pre-trial custody in Canada, on at least a two-for-one basis due to the extremely offensive conditions in which the applicant had been living while in custody in the Toronto (Don) Jail.
[10] On August 16, 2002, having had no response from the Minister, counsel for the applicant wrote again and brought to his attention the recent decision of this court in Pacificador v. Canada (Minister of Justice) (2002), 2002 41595 (ON CA), 60 O.R. (3d) 685, 97 C.R.R. (2d) 20 (C.A.). [page271]
[11] On October 9, 2002, counsel for the applicant served and filed an application for judicial review of the Minister's surrender decision of December 1, 2000 and of the Minister's refusal to consider the applicant's subsequent submissions.
[12] By letter dated October 30, 2002, the Minister replied to the applicant's letters of July 5 and August 16, 2002. He did so in the following terms:
Mr. Adam made extensive submissions to my predecessor during the year 2000. Over 22 months have elapsed since the warrant ordering your client's surrender was signed on December 1, 2000. During this period, the Court of Appeal for Ontario considered and dismissed your appeal on October 30, 2001. Your application for leave to appeal to the Supreme Court of Canada was dismissed on October 3, 2002. There would have to be a truly compelling reason for me to accept further submissions at this late date.
There should be both finality to the ministerial phase of the extradition process and respect for the decisions of the courts. Mr. Adam could have raised the issue you now raise either with my predecessor or as a ground of review before the Court of Appeal for Ontario at the time of the judicial review application. I do not think it is appropriate for me to now consider amending the order of my predecessor. In any event, I see no merit to your contention that it would be contrary to the Charter to surrender Mr. Adam without the assurance you seek.
Whether or how Mr. Adam will be credited for time spent in custody in Canada is entirely a matter for the consideration of the American authorities applying their own laws in the event of a conviction. Having considered all of the relevant circumstances of this case and the applicable law, including the Pacificador decision, I see no justification for me to dictate to the United States of America and the relevant trial judge the manner in which they may deal with this issue.
[13] The applicant then amended his application to add a request for judicial review of this refusal by the Minister.
[14] Finally, on November 12, 2002, Laskin J.A. allowed the applicant's motion for an order that he not be surrendered until the court's final decision on the judicial review.
Analysis
[15] I turn first to the issue of this court's jurisdiction to hear the applicant's request for judicial review. In this context, several sections of the Extradition Act, S.C. 1999, c. 18 are relevant.
[16] Section 40(1) provides for the Minister to make a surrender order. It says:
40(1) The Minister may, within a period of 90 days after the date of a person's committal to await surrender, personally order that the person be surrendered to the extradition partner. [page272]
[17] Section 42 permits the Minister to reconsider and amend his order prior to it being carried out. It says:
- The Minister may amend a surrender order at any time before its execution.
[18] Section 57(1) gives this court original jurisdiction to hear an application for judicial review of a surrender order. This section reads as follows:
57(1) Despite the Federal Court Act, the court of appeal of the province in which the committal of the person was ordered has exclusive original jurisdiction to hear and determine applications for judicial review under this Act, made in respect of the decision of the Minister under section 40.
[19] Lastly, s. 62(1) provides for a stay in executing the surrender order. It reads as follows:
62(1) No person may be surrendered
(a) until a period of 30 days has expired after the date of the committal for surrender; or
(b) if an appeal or a judicial review in respect of a matter arising under this Act, or any appeal from an appeal or judicial review, is pending, until after the date of the final decision of the court on the appeal or judicial review.
[20] In moving to quash this application, counsel for the Minister argues that this scheme gives this court jurisdiction to review only the Minister's initial surrender order. He argues that this jurisdiction does not extend to a decision made following a request for reconsideration. He says that if it were otherwise, an applicant could engage in an endless series of requests for the Minister to reconsider, each time seek judicial review of each and thereby frustrate the principle that extradition proceedings are to be conducted expeditiously.
[21] In my view this argument fails for three reasons.
[22] The first is the clear wording of the Extradition Act. The Minister made his original decision under s. 40 of the Extradition Act. Pursuant to s. 42, the appellant seeks an amendment to the Minister's original decision. This court's jurisdiction is to hear an application for judicial review in respect of the Minister's decision under s. 40. That jurisdiction is not confined only to judicial review of the Minister's s. 40 decision. This application is clearly in respect of the Minister's s. 40 decision. It challenges the Minister's refusal to amend that decision.
[23] Second, there is a sound policy reason behind this wording of the Extradition Act. There may often be a time lag between the Minister making a surrender order and its execution. If circumstances arise in that time frame which make a change to that [page273] order essential, a refusal to do so by the Minister may appropriately be the subject of judicial review. The same would be true if, after making a surrender order, the Minister made a change to it that was not warranted, for example, by removing a condition that the accused had insisted upon. The breadth of the jurisdiction given by s. 57 simply recognizes that fundamental changes can occur in the circumstances of an extradition prior to a surrender order being executed.
[24] Third, this interpretation is consistent with the meaning given to the parallel section, s. 62, by Laskin J.A. in his endorsement of November 12, 2002.
[25] I recognize the Minister's concern about an endless series of judicial review applications frustrating the expeditious execution of a surrender order. That, however, is primarily a consequence of the wording of s. 62(1) of the Extradition Act, which provides for a stay of execution of the surrender order without the need to demonstrate an arguable case, irreparable harm and a favourable balance of convenience as is required for most stay orders. As Laskin J.A. said, the Minister can always seek to expedite the hearing of a judicial review application. If that is not a sufficient answer to the Minister's concern, a change in the wording of s. 62(1) may be required.
[26] This reading of the Extradition Act declines to treat the concern for finality -- that is, repeated requests made to the Minister to revisit his surrender decision, followed by judicial review, thereby effectively frustrating expeditious extradition -- as a limit on this court's jurisdiction. However, that does not mean that finality is not a relevant consideration for the Minister or subsequently for the court in considering the merits of a judicial review application. Indeed, in some cases, it may be a sufficient basis for the Minister to deny reconsideration and for this court, in its discretion, to deny judicial review.
[27] However that issue need not be addressed in this case, because, as the Minister's letter of October 30, 2002 makes clear, he considered the applicant's submission and rejected it. The Minister found no merit to the applicant's contention that it would violate his Canadian Charter of Rights and Freedoms rights if he were surrendered without assurances that on conviction he would be credited on an enhanced basis for his time in pre-trial custody in Canada. It simply cannot be said, as the applicant argues, that the Minister failed to consider the applicant's submissions that the surrender order must be amended.
[28] The applicant's fundamental argument on judicial review is that the Minister's failure to amend the surrender order to [page274] assure that he receive enhanced credit for his pre-trial custody constitutes a violation of his Charter rights.
[29] While the applicant also raises s. 6 and s. 12 of the Charter, it is s. 7 that must govern the outcome of this case, just as it did in United States of America v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, 195 D.L.R. (4th) 1.
[30] Section 6 cannot be properly stretched to reach this case because there is no showing that the applicant's right to remain in Canada is affected by the presence or absence of the condition sought by the applicant.
[31] Section 12 is inappropriate because with or without the condition sought, any punishment to be visited on the applicant is at this point a matter of speculation.
[32] As to s. 7, the question is whether the Minister's refusal to seek an assurance of enhanced credit for pre-trial custody means that on surrender, the applicant would face a penalty that is simply unacceptable or shocks the conscience. See Pacificador, supra, at para. 44. In this context all we know about American sentencing practices is that the federal sentencing law, Title 18 U.S.C. 3585, requires that a defendant shall be given credit for pre-sentencing custody. Hence it appears that if convicted in the United States, the applicant would have a statutory entitlement to some credit for his pre-trial custody, although with no guarantee that the credit would be more than one-for-one.
[33] Can it be said to be "simply unacceptable" for the applicant to be sentenced in the United States in the absence of a guarantee of enhanced credit for pre-trial custody fixed at some level greater than one-for-one, for example, at a minimum of two-for-one as Mr. Greenspan suggests?
[34] The simple answer must surely be no, where we have no such guarantee in Canada for domestic sentencing. Given that we do not guarantee enhanced credit ourselves, we can hardly say that a sentencing regime that does not do so either, produces unacceptable results. The Supreme Court of Canada made clear in R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, 184 D.L.R. (4th) 385 that according credit for pre-trial custody is to be done on a case-by-case basis, not on the basis of guarantees. At para. 45, the court put it this way:
The credit cannot and need not be determined by a rigid formula and is thus best left to the sentencing judge, who remains in the best position to carefully weigh all the factors which go toward the determination of the appropriate sentence, including the decision to credit the offender for any time spent in pre-sentencing custody. [page275]
[35] Thus I conclude that the Minister's refusal to amend the surrender order to attach the condition sought does not violate the applicant's Charter rights.
[36] In summary, therefore, I would dismiss both the motion to quash and the application for judicial review.
Application dismissed.