CITATION: Schreiber v. Germany, 2007 ONCA 354
DATE: 20070509
DOCKET: C46387
COURT OF APPEAL FOR ONTARIO
MCMURTRY C.J.O., JURIANSZ and ROULEAU JJ.A.
BETWEEN:
KARLHEINZ SCHREIBER
Applicant
and
FEDERAL REPUBLIC OF GERMANY and MINISTER OF JUSTICE AND ATTORNEY GENERAL OF CANADA
Respondents
Brian H. Greenspan and Vanessa Christie for the applicant
Nancy Dennison for the respondents
HEARD: May 4, 2007
Application for judicial review of the December 14, 2006 decision of the Minister of Justice not to rescind the order issued by the former Minister of Justice surrendering the applicant to Germany to face trial on various charges.
ROULEAU J.A.:
[1] The applicant brings this judicial review application to quash the decision of the Minister of Justice refusing to rescind an earlier order by the former Minister of Justice that he be surrendered to Germany to face trial on charges of tax evasion, fraud, forgery, and bribery.
Background
[2] The applicant, a Canadian and German citizen, was arrested in Canada on August 31, 1999 on a provisional warrant of arrest in respect of a request for extradition by Germany. Bail was granted several days later. Motions, evidence, and submissions were made to the extradition judge over the course of the next five years.
[3] On May 27, 2004, the applicant was committed for extradition on all but one of the offences listed in the Authority to Proceed. The formal order was signed on June 3, 2004. On that same day, a notice of appeal was filed in this court and the applicant applied for bail pending appeal which was granted.
[4] Between July 15, 2004 and October 20, 2004, submissions were made to the Minister of Justice regarding his surrender decision. The Minister rejected those submissions on October 31, 2004 and ordered the applicant’s surrender. A notice of application for judicial review was filed with this court on November 29, 2004. On March 1, 2006, this court dismissed the appeal and the judicial review. A notice of application was made to the Supreme Court of Canada which was dismissed on February 1, 2007.
[5] On May 17, 2006 and August 10, 2006, the applicant wrote to the Minister of Justice urging the Minister to reconsider and rescind the earlier surrender decision because of press reports of comments made by the Chief Prosecutor and the judicial spokesperson for the court in Augsburg, Germany about the case. On December 14, 2006, the Minister refused to rescind the earlier surrender decision.
[6] On December 18, 2006, an application for judicial review of the Minister’s decision was filed with this court. On February 8, 2007, the applicant was granted release pending the determination of this judicial review of the Minister’s decision.
Analysis
a) Fresh evidence application
[7] At the outset of the hearing, the applicant brought a fresh evidence application consisting of two documents. The first is a letter from Justus Demmer, the head of media and communications of the press agency that filed the press reports at issue in this application. It confirms that the reporter who wrote the article observed the common journalistic standards. The second is an affidavit of Eberhard Kempf, a respected member of the criminal bar of Frankfurt. It describes the guidelines that apply to judicial spokespersons and opines on the inappropriate nature of the comments reported as having been made by the judicial spokesperson.
[8] In my view, it is in the interests of justice that the court receive and consider the fresh evidence on this application.
b) Applicable standard
[9] Both counsel agree that when s. 7 of the Canadian Charter of Rights and Freedoms is the basis of a challenge to the Minister’s decision to surrender, the applicant must establish on a balance of probabilities that the decision in question violates his Charter rights in that his surrender would be “simply unacceptable” or “sufficiently shocks the conscience” of Canadians: Pacificador v. Canada (Minister of Justice) (2002), 2002 41595 (ON CA), 166 C.C.C. (3d) 321 at para. 44 (Ont. C.A.).
[10] As stated by McLachlin J. in Kindler v. Canada (Minister of Justice) (1991) 1991 78 (SCC), 67 C.C.C. (3d) 1 (S.C.C.) at paras. 67-69:
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. [Emphasis added.]
c) Concerns raised by the comments of the senior prosecutor and the judge spokesperson for the Regional Court of Augsburg
[11] The applicant points to comments in the German media attributed to a senior prosecutor and to the judge who is the spokesperson for the Regional Court of Augsburg, the region in which the applicant is to be tried. He says these comments show that he will not get a fair trial in Germany because the case against him has been prejudged. Consequently, he argues that surrendering him to undergo trial in Germany would violate his right to fundamental justice guaranteed by s. 7 of the Charter.
[12] I agree with the applicant that if the press reports accurately quoted the judicial spokesperson and these quotes are not taken out of context they are of concern. However, assuming that the quotes are accurate and not taken out of context, I do not accept the applicant’s submission that they show that the applicant will not receive a fair trial.
[13] Canada has an extradition treaty with Germany which, as stated by La Forest J. in Schmidt v. The Queen (1987), 1987 48 (SCC), 33 C.C.C. (3d) 193 at 215 (S.C.C.), means that, when determining whether the surrender of a fugitive offends the basic demands of justice:
[T]he courts must begin with the notion that the executive must first have determined that the general system for the administration of justice in the foreign country sufficiently corresponds to our concepts of justice to warrant entering into the treaty in the first place, and must have recognized that it too has a duty to ensure that its actions comply with constitutional standards.
In addition, while there should not be blind judicial deference, “the courts must be extremely circumspect so as to avoid interfering unduly in decisions that involve the good faith and honour of this country in its relations with other states. In a word, judicial intervention must be limited to cases of real substance.”
[14] Further, as appears from the Minister’s decision, the comments led him to ask his officials to follow up with German authorities. From these inquires, it is apparent that the prosecutor whose comments are at issue, will not be involved in prosecuting against the applicant. The judicial spokesperson, whose comments are impugned, will not be on the panel of three judges who tries the applicant’s case in Germany. In Germany, the applicant’s right to be presumed innocent until proven guilty and his right to a fair trial are guaranteed by the German constitution.
[15] I do not, therefore, regard the reported comments as providing a basis for a reasonable belief that the applicant will not be accorded his rights to fairness and due process in the German trial.
d) The Minister’s decision
[16] The applicant further submits that given the comments made and the obvious political undertones of this case fairness demands that the Minister not accept general assurances concerning the fairness of the German legal system and that he fully investigate the concern that this particular applicant receive a fair trial in Germany. The applicant submits that the present case is similar in nature to United States of America v. Cobb (2001), 2001 SCC 19, 152 C.C.C. (3d) 270 (S.C.C.).
[17] The applicant argues that the responses received by the Minister to his inquiries were not full and frank. The applicant points to the fresh evidence which states that the reported comments of the judicial spokesperson represent a remarkable violation of the recognized standards applicable to such spokespersons. The fresh evidence also postulates that the factual information about the case that the spokesperson may have used as a basis for his comments would logically have come from the chamber of the judges who are responsible for the trial of the applicant’s case in Germany.
[18] The applicant maintains that this fresh evidence demonstrates that the Minister’s understanding of the role of a judicial spokesperson under the German system and of the appropriateness of the reported comments was wrong and that this misunderstanding has tainted his decision. The applicant submits that the Minister’s misunderstanding is apparent from the comment contained in his December 14, 2006 letter that “in the German system, it must be that there is no necessary conflict between a judicial spokesperson commenting on a prosecution and the state’s ability to guarantee a fair trial.”
[19] It is not clear to me that the statement should be interpreted as suggested by the applicant. However, in light of the fresh evidence, I agree that, at the time of writing his letter, the Minister may not have appreciated that the reported comments of the judicial spokesperson could be seen by German criminal lawyers as being significantly at variance with appropriate conduct. That said, however, the Minister correctly noted that the reported comments cannot be understood as an attempt to interfere with the exercise by the applicant of his rights within the Canadian extradition process as was found to be the case in R. v. Cobb.
[20] Further, I do not understand the Minister to have based his decision on whether the comments were or were not appropriate. The Minister’s decision was based on his conclusion that the German courts could be trusted to deal with issues such as the apprehension of prejudgment and the potential prejudice that these comments may have caused. This is apparent from the sentence in the Minister’s letter that followed the sentence that concerned the applicant and which is quoted above. The Minister went on to state as follows:
In my view, even if it could be concluded that Judge Haeusler’s comments could potentially give rise to prejudice for Mr. Schreiber, this is a matter where the German court, should be trusted to deal with the issue and fashion a remedy, if necessary.
[21] In a sense, the fresh evidence supports the Minister’s conclusion. Mr. Kempf refers to decisions made by German courts, including the Higher Regional Court of Düsseldorf, to the effect that any comments by prosecutors and spokespersons of a court should be objective and restricted to what is absolutely necessary to inform the public. According to Mr. Kempf, the German courts he refers to have underlined the importance of fairness and respect for the presumption of the innocence of the accused. In my view, this serves to confirm the Minister’s conclusion that there is no systemic problem in Germany that would operate to prevent the applicant from receiving due process and a fair trial.
[22] In the circumstances of this case, I consider that it is for the German’s courts to deal with the applicant’s apprehension of prejudgment and to fashion the appropriate remedy, if one is warranted.
Disposition
[23] I am satisfied that the Minister did not err in his interpretation and application of s. 7 of the Charter. The extradition of the applicant will not offend the Canadian sense of what is fair, right, and just bearing in mind the factors set out in Kindler. For these reasons I would dismiss the application.
“Paul Rouleau J.A.”
“I agree R.R. McMurtry C.J.O.”
“I agree R. Juriansz J.A.”