The Minister of Justice and the Attorney General for Canada et al. v. Everard [Indexed as: Canada (Minister of Justice) v. Everard]
74 O.R. (3d) 363
[2005] O.J. No. 468
Docket: C42543
Court of Appeal for Ontario,
MacPherson, Sharpe and Cronk JJ.A.
February 14, 2005
Extradition -- Requirements -- Time limits -- United States seeking accused's extradition on drug offences in New York in June 2002 -- Accused consenting to extradition on New York charges in May 2003 -- Later in May 2003, United States making extradition request on drug charges in Ohio -- Minister ordering accused to surrender in June 2003 on New York charges -- Minister deciding not to send accused to New York until after request from Ohio dealt with -- Statute providing 45-day time limit from date of surrender order to when accused [page364] must be conveyed to requesting state -- In September 2004, Minister ordering accused be surrendered on Ohio charges and not rescinding decision regarding New York charges -- Minister not indicating order of priority between surrender orders -- Section 69(b)(i) of Extradition Act stating judge may discharge accused after time limit unless cause shown why should not be discharged -- Accused successfully applying to be discharged on New York charges after Minister filed no evidence to justify delay -- On appeal Minister stating delay justified as accused would receive credit for custody in Canada if sentenced to jail in United States and if accused sent to New York before disposing of Ohio's request, rule of specialty would require that accused be returned to Canada after completing sentence in New York before being sent to Ohio -- Minister's approach engendered delay in dealing with New York trial and did not reflect obligation to deal with extradition matters expeditiously -- Decision discharging accused from extradition proceedings on New York charges upheld -- Extradition Act, S.C. 1999, c. 18, s. 69.
Extradition -- Statutory interpretation -- Section 69 of Extradition Act -- Application for discharge if accused not conveyed to requesting state within 45 days of surrender order -- Whether s. 69(b)(i) of Extradition Act providing that judge "may order [that accused be] ... discharged out of custody unless sufficient cause is shown against the discharge" is mandatory provision -- Minister arguing application judge had discretion to refuse discharge even if time limit not met and sufficient cause against discharge not shown -- Application judge correct in holding that "may" should be interpreted as "must" discharge accused from extradition proceedings unless cause shown discharge should not be granted -- Extradition Act, S.C. 1999, c. 18, s. 69.
Two American states, New York and Ohio, charged the respondent with criminal offences relating to the drug Ecstasy. The United States sought extradition of the respondent to New York in June 2002. In May 2003, the respondent consented to surrender and an order of committal was made. Later that month, the United States requested the extradition of the respondent on the Ohio charges. On June 20, 2003, the Minister ordered the respondent's surrender on the New York charges. However, the Minister decided not to surrender the respondent to New York while he considered the extradition request relating to the Ohio offences. The decision on the Ohio charges was made in September 2004. Pursuant to s. 69 of the Extradition Act, the respondent sought to be discharged from the New York extradition proceedings. Section 69(b)(i) provides that a superior court judge "may" discharge an applicant if Canada has not conveyed him to the extradition partner within 45 days of the Minister's surrender order, unless the Minister can establish that "sufficient cause is shown against the discharge". The application was heard in September 2004. The Minister pointed out that the application of the rule of specialty in this case meant that if the Minister surrendered the respondent to the United States on the New York charges, the respondent could not be transferred to Ohio without first being returned to Canada to respond to the extradition request relating to the Ohio charges. The Minister contended that this was a cumbersome process which should be avoided by delaying the respondent's surrender to New York until the Minister had also disposed of the Ohio request. The application judge held that the Minister had not discharged the burden to show that the delay was reasonable. She ordered that the respondent be discharged out of custody on the New York charges. She further held that the words "discharged out of custody" in s. 69 meant discharged from the extradition proceedings, not simply released on bail. [page365]
The Minister appealed, arguing that the application judge erred in holding that the need to complete the respondent's extradition hearing in relation to the Ohio request was not sufficient cause to delay surrender and conveyance on the New York request and that the application judge erred in interpreting s. 69(b)(i) of the Act as a mandatory provision requiring discharge in the absence of sufficient cause and in failing to exercise the discretion conferred by that section in favour of continued detention and surrender.
Held, the appeal should be dismissed.
In the circumstances of this case, the Minister's explanation did not establish sufficient cause for the delay in surrendering the respondent to the United States. The delay was a very long one. The Minister did not explain why he decided to proceed with the Ohio request in the face of the New York surrender order, especially since the respondent had consented to surrender and was in custody awaiting surrender. The respondent was prejudiced by the delay. The Minister's argument that it was likely that the respondent would receive credit for his Canadian custody in sentencing proceedings in the United States ignored the possibility that the respondent might be acquitted, or that, if convicted, he might receive a sentence less than the long period he had already spent in custody in Canada. The respondent's surrender to New York would not result in an unwarranted delay in the Ohio extradition proceedings. The Ohio proceedings could be recommenced, in accordance with the Act, after the charges against the respondent were resolved in New York. Moreover, the extradition requests from the United States relating to the respondent, including the number (two), timing (a year apart), and omission of any signal concerning priority, were entirely within the control of the United States. Extradition proceedings must proceed expeditiously. The extradition process is designed to keep expenses to a minimum and ensure prompt compliance with Canada's international obligations. The process followed by the Minister was not consistent with these goals. By not surrendering the respondent to New York in compliance with his own order, the Minister set in motion a process which was slow, almost certainly expensive, and unfaithful to Canada's international obligations.
If sufficient cause is not shown under s. 69, the application judge must discharge an applicant. Moreover, it was difficult to see why a judge would ever exercise his or her discretion in favour of refusing a discharge if the Minister has not shown sufficient cause against the discharge. Such a disposition would be illogical.
APPEAL from the judgment of Dunnet J. of the Superior Court of Justice, dated October 7, 2004, granting a discharge from extradition proceedings.
Cases referred to F.H. Martin (Re) (1897), 1897 108 (NWT SC), 8 C.C.C. 326 (N.W.T.S.C.); McVey (Re), 1992 48 (SCC), [1992] 3 S.C.R. 475, [1992] S.C.J. No. 95, 73 B.C.L.R. (2d) 145, 97 D.L.R. (4th) 193, 144 N.R. 81, [1993] 1 W.W.R. 289, 77 C.C.C. (3d) 1 (sub nom. McVey (Re), McVey v. United States of America); R. v. Araujo, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, 193 D.L.R. (4th) 440, 262 N.R. 346, 79 C.R.R. (2d) 1, 149 C.C.C. (3d) 449, 38 C.R. (5th) 307, 2000 SCC 65; R. v. Brixton Prison (Governor), Ex p. Enahoro, [1963] 2 All E.R. 477 (Q.B.); Shuter (No. 2) (Re), [1959] 3 All E.R. 481, [1960] 1 Q.B. 142; United States of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, 147 D.L.R. (4th) 399, 213 N.R. 321, 44 C.R.R. (2d) 189, 115 C.C.C. (3d) 481, 8 C.R. (5th) 79 Statutes referred to Extradition Act, S.C. 1999, c. 18, ss. 15(2), 49, 69 [page366] Treaties and conventions referred to Extradition Treaty between Canada and the United States of America, C.T.S. 1976/3, Art. 12 Authorities referred to La Forest, A.W., La Forest's Extradition to and from Canada, 3rd ed. (Aurora, Ont.: Canada Law Book, 1991)
Croft Michaelson, for appellant. John Norris, for respondent.
The judgment of the court was delivered by
MACPHERSON J.A.: --
A. Introduction
[1] Jamie Everard ("Everard") is a Canadian citizen. Two American states, New York and Ohio, have charged him with criminal offences relating to the drug Ecstasy.
[2] The United States of America (the "U.S.A.") sought extradition of Everard to New York pursuant to the Extradition Treaty between Canada and the United States of America, C.T.S. 1976/3 (the "extradition treaty"). Everard consented to surrender and the Minister of Justice (the "Minister") ordered his surrender.
[3] Before the Minister conveyed Everard to New York, and indeed before the Minister made the surrender order, the U.S.A. made a second formal request seeking the extradition of Everard to Ohio.
[4] The Minister decided not to surrender Everard to New York while he considered the extradition request relating to the Ohio offences. Pursuant to s. 69 of the Extradition Act, S.C. 1999, c. 18 (the "Act"), Everard sought to be discharged from the New York extradition proceedings. Section 69 authorizes a superior court judge to discharge an applicant if Canada has not conveyed him to the extradition partner within 45 days of the Minister's surrender order, unless the Minister can establish that "sufficient cause is shown against the discharge".
[5] The application judge granted Everard a discharge from the New York extradition proceedings. The Minister appeals. The appeal raises the issue of how the extradition treaty, the Act and the Minister deal with multiple extradition requests from a single extradition partner. [page367]
B. Facts
(1) The parties and the events
[6] There is a long (more than two years) and fairly complicated factual chronology in this case. However, the crucial events occurred in a three-month period commencing on May 2, 2003 and concluding on August 4, 2003.
[7] The U.S.A. requested Everard's extradition for the purposes of prosecution on drug charges, involving the drug Ecstasy, in two American states, New York and Ohio.
[8] The request relating to the New York charges was made by Diplomatic Note dated June 3, 2002. On July 5, 2002, Everard was arrested on an extradition warrant. He was granted bail on July 24, 2002, but was returned to custody on January 24, 2003 when one of his sureties refused to continue to act for him.
[9] On May 2, 2003, Everard consented to surrender on the New York request, and an order of committal was made by Forestall J. of the Superior Court of Justice.
[10] On May 30, 2003, in a second Diplomatic Note, the U.S.A. requested the extradition of Everard on the Ohio charges.
[11] On June 20, 2003, the Minister ordered the surrender of Everard to the U.S.A. on the New York charges. The surrender order made no reference to the Ohio criminal charges or the extradition request relating to them. On July 11, 2003, while still in custody awaiting surrender on the New York charges, Everard was arrested on the Ohio charges.
[12] Section 69 of the Act permits a person who is subject to a surrender order to seek a discharge if he has not been conveyed to the extradition partner within 45 days of the surrender date. In Everard's case, this period expired on August 4, 2003, on which date he was incarcerated in the Niagara Detention Centre in Thorold, Ontario.
[13] Everard brought an application to be discharged out of custody. On September 12, 2003, Kent J. of the Superior Court of Justice ordered Everard discharged out of custody on the New York charges and also ordered that he be released on bail in relation to the Ohio request [See Note 1 at the end of the document].
[14] On November 29, 2003, Everard was arrested and charged with failing to comply with his recognizance. On January 12, 2004, the Crown withdrew this charge. [page368]
[15] On March 10, 2004, following an extradition hearing, Everard was ordered committed for surrender in relation to the Ohio request. He then consented to his surrender, subject to appropriate credit being given for pre-trial custody.
[16] Shortly thereafter, Everard changed his position. On April 5, 2004, he filed a notice of appeal of the committal order on the Ohio request, and on April 14, 2004 he asked the Minister to reconsider the surrender decision on the New York request.
[17] On April 30, 2004, Everard again changed his position. He advised the Minister that he: (1) was going to abandon his appeal against committal; (2) waived his right to make submissions to the Minister concerning surrender on the Ohio request; and (3) wished to be surrendered to Ohio at the earliest possible opportunity. Everard also asked that the Minister deal with the request for reconsideration of the New York request within the time periods applicable to the Ohio request. However, Everard also submitted that, if the Minister decided to surrender him to the U.S.A. on either request, the surrender should be conditional on receiving assurances from the U.S.A. that he would receive credit for the time spent in custody in Canada awaiting extradition.
[18] On August 19, 2004, Everard abandoned his appeal of the committal order on the Ohio request. On August 20, 2004, the Minister's counsel advised Everard that any time he spent in custody awaiting extradition would be eligible for credit on sentencing in the U.S.A., in accordance with applicable state law.
[19] On September 13, 2004, the Minister decided not to rescind the surrender decision that had already been made in respect of the New York request. In his letter to Everard's counsel, the Minister stated:
In my view, there is nothing in the circumstances of this case that would make the execution of my predecessor's order of surrender "shocking to the conscience" and therefore contrary to section 7 of the Charter. While the Ohio extradition request did delay Mr. Everard's surrender to the United States, he was granted judicial interim release on the New York matters pending the determination of the Ohio request. He was re-incarcerated as a result of his own actions and at the request of his sureties. It is my view that in those circumstances his incarceration does not justify rescinding the surrender order with respect to the New York offences.
[20] The Minister also ordered that Everard be surrendered on the Ohio charges. The result was that the Minister ordered Everard to be surrendered to the U.S.A. on both the New York and Ohio charges, but without saying anything about the priority of those changes. [page369]
(2) The application for discharge
[21] Four days after the Minister's decision on September 13, 2004, Dunnet J. heard Everard's application to be discharged on the New York request. Everard argued that since he was ordered to be surrendered on the New York request on June 20, 2003, his surrender and conveyance to the U.S.A. had been required by August 4, 2003, pursuant to s. 69(b)(i) of the Act. He contended that the Minister had failed to show sufficient cause for the delay in surrender and, therefore, he should be discharged. The Minister filed no affidavit material to explain the delay.
[22] Dunnet J. held that the Minister had not discharged the burden to show that the delay was reasonable. She ordered that Everard be discharged out of custody on the New York charges. She further held that the words "discharged out of custody" in s. 69 of the Act meant discharged from the extradition proceedings, not simply released on bail.
[23] The Minister appeals Dunnet J.'s decision on two grounds, which are reflected in my statement of the issues on the appeal.
C. Issues
[24] The Minister raises two issues on the appeal:
(1) Did the application judge err in holding that the need to complete Everard's extradition hearing in relation to the Ohio request was not sufficient cause to delay surrender and conveyance on the New York request?
(2) Did the application judge err in interpreting s. 69(b)(i) of the Extradition Act as a mandatory provision requiring discharge in the absence of sufficient cause, and in failing to exercise the discretion conferred by that section in favour of continued detention and surrender?
D. Analysis
(1) Sufficient cause to delay surrender
[25] As I have said, on June 20, 2003, the Minister ordered the surrender of Everard to the U.S.A. on the New York charges.
[26] Section 69 of the Act provides:
- A judge of the superior court of the province in which the person is detained who has the power to grant a writ of habeas corpus, may, on application made by or on behalf of the person, and on proof that reasonable notice of the intention to make the application has been given to the Minister, order the person to be discharged out of custody unless sufficient cause is shown against the discharge if ... [page370]
(b) the person is not surrendered and conveyed to the extradition partner
(i) within 45 days after the order of surrender is made by the Minister under section 40 [. . . .]
(Emphasis added)
[27] By August 4, 2003, when the 45-day period set out in this provision had expired, Everard was still detained in a Canadian jail. He had not been conveyed to New York.
[28] Everard was ordered discharged out of custody by the application judge pursuant to s. 69 of the Act. The Minister appeals this decision. There is no dispute that the determination of whether the circumstances in a particular case amount to "sufficient cause" within the meaning of s. 69 of the Act gives rise to a question of law that is amenable to judicial review: see s. 49 of the Act, and R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, at para. 18. The parties also agree that the onus to establish "sufficient cause" for a delay in surrender rests with the Minister: see R. v. Brixton Prison (Governor), Ex p. Enahoro, [1963] 2 All E.R. 477 (Q.B.), at p. 479; Re F.H. Martin (1897), 1897 108 (NWT SC), 8 C.C.C. 326 (N.W.T.S.C.), at p. 327; and Anne Warner La Forest, La Forest's Extradition to and from Canada, 3rd ed. (Aurora, Ontario: Canada Law Book, 1991), at p. 213.
[29] As I have already noted, the Minister provided no evidence to establish "sufficient cause" and relied entirely on the timing of the two extradition requests.
[30] The foundation of the Minister's submissions on the appeal is the extradition principle of specialty, which is reflected in Article 12 of the extradition treaty between Canada and the U.S.A. In her leading text, La Forest's Extradition to and from Canada, Dean La Forest has described specialty in this fashion, at pp. 31-32:
Both under the treaties and the Act, a fugitive cannot be prosecuted or punished for any offence committed before his surrender, other than one for which he was surrendered, unless he has been given the opportunity to return or has been restored to the requested state. This rule, sometimes called the rule of specialty, operates as a safeguard against the possible abuses of surrender. If it were not present, the whole process of the extradition hearing with its requirements of double criminality and a prima facie case would be rendered pointless once one extradition crime was established.
[31] The application of specialty in the present case would mean that if the Minister surrendered Everard to the U.S.A. on the New York charges, Everard could not be transferred to Ohio without first being returned to Canada to respond to the extradition request relating to the Ohio charges. The Minister contends that this is a cumbersome process which can and should be [page371] avoided by delaying Everard's surrender to New York until the Minister has also disposed of the Ohio request.
[32] I accept that there is some logic in this submission. If there are two extradition requests from a single extradition partner, it makes sense to attempt to deal with both of them while the accused is still on Canadian soil. However, in the circumstances of this case, I do not accept that the Minister's explanation establishes "sufficient cause" for the delay in surrendering Everard to the U.S.A. I reach this conclusion for several reasons.
[33] First, and most importantly, the delay in this case was a very long one. The starting point, which must not be forgotten, is that Everard consented to be surrendered on the New York charges on May 2, 2003. The Minister ordered his surrender on June 20, 2003. The statutory 45-day period for conveyance to the U.S.A. expired on August 4, 2003. The only reason Everard was not surrendered by that date was the existence of the second extradition request relating to the Ohio charges. The Minister made his decision on that request on September 13, 2004, more than 13 months after Everard should have been conveyed to New York by virtue of s. 69 of the Act.
[34] The Minister points out that Everard is partially responsible for this delay. On April 14, 2004, Everard asked the Minister to reconsider the surrender decision on the New York request. I agree with this submission. However, that still leaves a period of more than eight months in which Everard remained in limbo. Moreover, he spent about six of those months in jail.
[35] Second, while the Minister acknowledged in his September 13, 2004 decision that "the Ohio extradition request did delay Mr. Everard's surrender to the United States", he does not explain why he decided to proceed with the Ohio request in the face of the New York surrender order, especially since Everard had consented to surrender and, importantly, was in custody awaiting surrender.
[36] Indeed, on the basis of the record, the Minister's decision not to convey Everard on the New York request and to proceed on the Ohio request is puzzling. The New York extradition request was made on June 3, 2002. The Ohio request followed a year later, on May 30, 2003. Presumably, the Minister would be aware of both requests and would consider the relationship between them. There is nothing in the Minister's surrender order on the New York request on June 20, 2003 to suggest that the Ohio request might suspend the operation of the surrender order. Indeed, in a letter to Everard's counsel on June 24, 2003, responding to a request for speedy conveyance to the U.S.A., the Minister's counsel advised: [page372]
As your client has consented to the issuance of an Order for committal and consented to his surrender on May 2, 2003, please be advised that conveyance to the competent American authorities will be effected in conformity with the Extradition Act.
This statement surely presaged compliance with the 45-day period for conveyance in s. 69 of the Act.
[37] Third, I reject the Minister's contention that the delay has not caused Everard any prejudice because he was released on bail and because the American authorities have confirmed that the time Everard spent in custody awaiting extradition will be taken into account in sentencing in the U.S.A.
[38] The argument relating to bail is unconvincing. The Minister states in his factum that Kent J.'s judicial interim release order was probably made in error (Everard also concedes this point, and Dunnet J. alluded to the probable error in her reasons). Moreover, in the 16-month period from May 2, 2003 to September 13, 2004, Everard was out of custody for only 2 months.
[39] The Minister's argument about the likelihood that Everard will receive credit for his Canadian custody in sentencing proceedings in the U.S.A. ignores a crucial variable -- the possibility of acquittal. Moreover, even if Everard were convicted, he might receive a sentence less than the long period he has already spent in custody in Canada.
[40] Fourth, I do not agree with the Minister's submission that the surrender of Everard to New York will result in an unwarranted delay in the Ohio extradition proceedings. The Ohio proceedings can be recommenced, in accordance with the Act, after the charges against Everard are resolved in New York. Moreover, the extradition requests from the U.S.A. relating to Everard, including the number (two, not one), timing (a year apart) and omission (any signal concerning priority), were entirely in the U.S.A.'s control. By proceeding as it did, the U.S.A. triggered, at most, a possible delay in the Ohio extradition proceedings. In contrast, by failing to surrender Everard to New York within 45 days of the surrender order, the Minister created an actual and long delay encompassing a significant period of incarceration for Everard. On this point, I agree with the analysis of Mr. Norris, Everard's counsel, in his factum:
The Minister contends that it would have made little sense to convey the Respondent to the United States for prosecution on the New York charges and then, after the Respondent had returned to Canada at the conclusion of that proceeding and any sentence imposed, to proceed with the request for extradition on the Ohio charges: see Minister's Factum, paragraph 52.
In effect, the Minister asks this court to accept that it makes "little sense" for Canada to comply with an extradition request in a timely manner. Had the [page373] Respondent been surrendered immediately on the New York request, that trial could have proceeded long ago. While the Ohio prosecution would have been delayed, it came second in line so it is only fair that it have to wait its turn. Whether the Respondent was surrendered on one request at a time or on both simultaneously, one of the prosecutions would have to be delayed in any event because the Respondent cannot be prosecuted in both jurisdictions simultaneously. The approach urged by the Minister as the sensible one, on the other hand, guarantees that both prosecutions will be delayed.
[41] Fifth, I observe that an extradition proceeding is not a criminal trial: see Re McVey, 1992 48 (SCC), [1992] 3 S.C.R. 475, [1992] S.C.J. No. 95, at p. 551 S.C.R. Moreover, extradition proceedings must proceed expeditiously; the extradition process is "designed to keep expenses to a minimum and ensure prompt compliance with Canada's international obligations": see United States of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, at para. 122.
[42] The process followed by the Minister in this case is not consistent with these goals. By not surrendering Everard to New York in compliance with his own order, the Minister has set in motion a process which is slow, almost certainly expensive, and unfaithful to Canada's international obligations (Everard has faced no trial in the U.S.A.). In addition, Everard has languished in a Canadian jail for more than two years -- 21 months after he consented to be surrendered to the U.S.A.
[43] In summary, there will be occasional cases in which the Minister is faced with more than one extradition request for a person. A scenario in which more than one country seeks the extradition of a person is dealt with in s. 15(2) of the Act:
15(2) If requests from two or more extradition partners are received by the Minister for the extradition of a person, the Minister shall determine the order in which the requests will be authorized to proceed.
[44] The present case provides a second scenario -- two or more extradition requests from a single extradition partner. Although there is no provision in the Act dealing explicitly with this scenario, there can be no doubt that the Minister will have to determine how to proceed with the requests. Moreover, the principle of specialty introduces an element of complexity into the Minister's analysis. These features suggest a fair measure of deference to the Minister's decision on how to proceed.
[45] However, the Minister must comply with the Act. In the context of a surrender order, his obligation is to convey the person to the requesting state within 45 days. If the Minister does not do this, the person can obtain from a judge an order of discharge out of custody unless the Minister shows "sufficient cause" against the discharge. For the reasons I have identified [page374] and elaborated on above, I do not think that the Minister met this onus in Everard's case.
(2) Section 69(b)(i) -- mandatory or discretionary?
[46] Section 69 of the Act provides that a superior court judge "may" order the discharge out of custody of a person unless sufficient cause is shown.
[47] The application judge concluded her analysis on the issue of sufficient cause in this fashion:
Accordingly, the respondents have not discharged their burden of showing that the Minister's delay is reasonable, having regard to all of the circumstances. He must, therefore, be discharged out of custody pursuant to s. 69(b) of the Act.
(Emphasis added)
[48] The Minister contends that the application judge erred by interpreting s. 69 as a mandatory provision in the face of the word "may". Using this as a launch point, he submits that even if there were no sufficient cause for delay, the application judge should have exercised the discretion conferred by s. 69 in favour of continued detention in custody and surrender. On September 13, 2004, the Minister ordered that Everard be surrendered to the U.S.A. on the Ohio request, and also decided not to rescind the previous surrender order made on the New York request. Everard was on the verge of being surrendered on both requests. The Minister argues that there were no good reasons, either in law or public policy, for ordering Everard's discharge on the New York request, which necessitates that extradition proceedings on that matter now be recommenced from the beginning. Rather, the dictates of international comity and the honouring of Canada's international obligations required the application judge to refuse to discharge Everard so that he could be surrendered to the U.S.A.
[49] I disagree with this submission. In La Forest's Extradition to and from Canada, Dean La Forest considered the predecessor of s. 69 of the Act and concluded at p. 213:
A sufficient cause is shown if the delay is reasonable having regard to all the circumstances, but unless the cause is shown, the judge must release the fugitive even though the statute reads that he "may".
This conclusion is supported by judicial decisions interpreting the analogous provision in the United Kingdom extradition legislation: see, for example, Re Shuter (No. 2), [1959] 3 All E.R. 481, [1960] 1 Q.B. 142, at p. 483 All E.R. and Brixton Prison (Governor), supra, at p. 479 All E.R. [page375]
[50] Moreover, it is difficult to see, on the merits, why a judge would ever exercise her discretion in favour of refusing a discharge if the Minister has not shown "sufficient cause" against the discharge. Such a disposition, in my view, would be illogical, a non sequitur.
[51] The present case exemplifies the non sequitur. The Minister contends that Everard should not now be discharged, even though the Minister has not shown "sufficient cause", because a discharge would mean that Everard could not be surrendered to the U.S.A. on the New York charges, which would be contrary to international comity and the honouring of Canada's international obligations.
[52] The problem with this analysis is obvious. The Minister ordered Everard's surrender on June 20, 2003. He then failed to convey Everard to the U.S.A. by August 4, 2003. If the Minister had followed through on his original surrender order, Everard would have been in New York long ago, his trial would probably be finished, and the values of international comity and honouring Canada's international obligations would have been accorded full respect. In short, it was the Minister's own decision that undercut these important values. It was, therefore, unconvincing for the Minister to rely on these values 13 months later to oppose Everard's discharge even though the Minister could not establish "sufficient cause" for the long delay in the extradition proceedings.
E. Disposition
[53] I would dismiss the appeal.
Appeal dismissed.
Notes
Note 1: In her reasons, Dunnet J. doubted the correctness of the component of Kent J.'s order relating to bail on the Ohio charges. Everard concedes that this component of Kent J.'s order was in error. However, the Minster did not appeal it and it is not before us on this appeal.