CITATION: Canada (Attorney General) v. Saad, 2007 ONCA 75
DATE: 20070206
DOCKET: C44381
COURT OF APPEAL FOR ONTARIO
O’CONNOR A.C.J.O., ROSENBERG and CRONK JJ.A.
B E T W E E N :
THE MINISTER OF JUSTICE FOR CANADA
Gregory Lafontaine for the applicant
(Respondent)
- and -
NAJEEB MAJED SAAD
Kevin Wilson for the respondent
(Applicant)
Heard: November 3, 2006
On an application for judicial review of the order of surrender of the Minister of Justice dated October 26, 2005.
O’CONNOR A.C.J.O.:
[1] Najeeb Majed Saad applies for judicial review of the order of the Minister of Justice, the Honourable Irwin Cotler, that he be surrendered to the United States of America on three counts of delivering a controlled substance, cocaine, to a minor and one count of lewd or lascivious battery (sexual assault) in violation of Florida law.
Procedural History
[2] By way of an authority to proceed issued on March 26, 2003, pursuant to s. 15 of the Extradition Act, S.C. 1999, c. 18 (the “Act”), the Minister of Justice authorized the Attorney General of Canada to seek the applicant’s committal for extradition. The authority to proceed identified six Canadian offences. After a hearing, on May 1, 2003, Chapnik J. committed the applicant into custody on three of those offences and discharged him on the other three. The applicant appealed his committal to this court.
[3] Prior to the hearing of the appeal, on November 10, 2003, the then Minister of Justice, the Honourable Martin Cauchon, ordered that the applicant be surrendered for the conduct in respect of which he had been committed. The Minister’s order referred to the charges in the foreign charging document. The applicant sought judicial review of the Minister’s decision.
[4] This court heard the appeal from the decision of the extradition judge and the judicial review of the Minister’s decision together. In United States of America v. Saad (2004), 2004 CanLII 9931 (ON CA), 183 C.C.C. (3d) 97, it ordered that the applicant be discharged with respect to one additional charge relating to trafficking in ecstasy. The court did not interfere with the committal on the two other charges in the authority to proceed, which are:
• trafficking in cocaine, a substance represented to be or held out to be cocaine (between February 1, 2002 and April 15, 2002), contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19; and
• sexual assault with respect to J.R., contrary to s. 271 of the Criminal Code, R.S. 1985, c. C-46.
As a necessary consequence of the decision on committal, the court set aside the Minister’s surrender order and referred the matter back to the Minister for redetermination. The applicant’s application for leave to appeal this court’s decision to the Supreme Court of Canada was dismissed.
[5] After receiving submissions, Minister Cotler reconsidered the surrender order. He wrote to the applicant’s counsel on October 26, 2005, stating that the applicant would be surrendered “only for the conduct for which committal was upheld by the Court of Appeal”. In his letter, he referred to the foreign charges on which the surrender was based as follows:
• Delivery of a controlled substance to a minor in violation of Florida Statutes 893.13(4)(a) as set out in counts 8, 10 and 12 of superseding information number 02-61437-CFA [counts 8, 10 and 12 refer to cocaine transactions on February 9, 24 and 25, 2002]; and
• Lewd and lascivious battery in violation of Florida Statutes 800.04(4)(a) as set out in count 17 of superseding information number 02-[61437]-CFA.
[6] The applicant now applies to this court for judicial review of the second surrender order.
The Jurisdictional Argument
[7] The applicant argues that the Minister exceeded his jurisdiction in ordering surrender for four specific transactions (three cocaine counts and one count of lewd and lascivious battery) because they were not supported by the evidence at the committal hearing. The applicant submits that there is a potential misalignment between the factual basis for the committals on the two specified Canadian charges and the four factual transactions that are the subject of the Minister’s order.
[8] I would not give effect to this submission. To start, this court should be reluctant to consider the jurisdictional argument because the exact same argument was open to the applicant on the earlier application for judicial review to this court and he chose not to make it.
[9] At para. 45 of this court’s decision in Saad, supra, Rosenberg J.A. said:
It would seem to me that, leaving aside specific extradition arrangements in s. 59, if the Minister ordered the surrender of a person for an offence that did not come within the conduct described in the committal order, he would have acted without jurisdiction. However, the onus is on the applicant for judicial review to show that the Minister acted without jurisdiction. The appellant in this case has not met that burden. Although he could have done so, the appellant has made no effort to obtain the foreign charging documents, nor to provide any information to cast doubt on the Minister’s decision.
[10] There was no reason why the applicant could not have raised the jurisdictional argument he now makes on the earlier judicial review application.
[11] In any event, I do not accept the applicant’s jurisdictional argument on its merits. The difference between the evidence led at the committal hearing and the four transactions in the Minister’s surrender order is, at best, minimal and does not meet the test upon which this court should interfere with the Minister’s decision to surrender the applicant.
[12] Once a person has been committed to await surrender, the Minister has a discretion whether to surrender the person or not. The Minister’s authority to order the person’s surrender is found in s. 40(1) of the Act. The language of the section is permissive. [^1] It reads as follows:
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. [Emphasis added.]
[13] The Minister’s discretion, however, is not unlimited. Under the heading “Reasons for Refusal”, the Act sets out a number of directions to guide the Minister’s decision, some mandatory, others discretionary. The only one relevant to this application is s. 44(1)(a), which provides:
44.(1) The Minister shall refuse to make a surrender order if the Minister is satisfied that
(a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; …
[14] Further, the Act provides that the Minister’s decision to surrender a person is subject to judicial review. Section 57 establishes that a person ordered to be surrendered may apply to the court of appeal of the province in which the committal was ordered to have the Minister’s decision reviewed. Section 57(7) establishes that a court of appeal may grant relief on any of the grounds on which the Federal Court may grant relief under subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7.
[15] In the United States of America v. Whitley (1994), 1994 CanLII 498 (ON CA), 94 C.C.C. (3d) 99 at 110 (Ont. C.A.), aff’d (1996), 1996 CanLII 225 (SCC), 104 C.C.C. (3d) 447 (S.C.C.), this court formulated the test on a judicial review application. The court pointed out that the scope for judicial review is limited and said the following:
[I]f the Minister violates the fugitive’s constitutional rights or otherwise errs in law, or if the Minister denies the fugitive procedural fairness, acts arbitrarily, in bad faith or for improper motives, or if the Minister’s decision is plainly unreasonable, then the reviewing court is entitled to interfere; otherwise, the court should defer to the Minister’s surrender decision.
[16] Once the Minister has decided to order a person’s surrender, he must comply with s. 58 of the Act, which sets out the requirements for what must be included in the surrender order. Paragraph (b) directs that the Minister describe one of three things: the offence in respect of which the extradition is requested; the offence for which the committal was ordered; or the conduct for which the person is to be surrendered. The Act, however, does not specifically require that the offences or conduct described in the Minister’s order be aligned with the evidence on which the committal order was based.
[17] That said, there are two possible bases upon which a court may grant relief against a decision to surrender based on a misalignment between the Minister’s decision and the evidence at the committal hearing. If it is shown on the application for judicial review that the Minister’s decision is unjust or oppressive having regard to all the relevant circumstances (s. 44(1)(a) of the Act) or that the decision is plainly unreasonable (Whitley, supra), then a reviewing court would be entitled to interfere. Otherwise, the Minister has a broad discretion as to what offences or conduct he includes in an order to surrender a person to a requesting state.
[18] In support of his misalignment argument, the applicant relies upon United States of America v. Reumayr (2003), 2003 BCCA 375, 176 C.C.C. (3d) 377 (B.C.C.A.). There the court found a surrender order to be deficient on the basis that the Act does not authorize surrender for offences that substantively exceed the offences that are supported by the committal proceedings. At para. 42, the court said:
It would defeat the purpose of the committal hearing if the Minister’s discretion extended to surrender for offences substantively beyond those supported by evidence at the committal hearing. [Emphasis added.]
[19] There are two points about Reumayr that should be emphasized. First, the court pointed out that the Minister need not be concerned about matters of form when reviewing a decision to surrender. It is not necessary that the equivalent Canadian offence have the same name or even the same elements as the foreign offence.
[20] Second, the court spoke of the Minister’s discretion being restricted only to surrendering for offences not “substantively beyond” those supported by the evidence. By that I take the court to mean that the Minister and a reviewing court should not be concerned with differences in details or particulars. As Goudge J.A. points out at para. 64 of The Minister of Justice v. Gorcyca, a judgment being released simultaneously with this one, “[o]nly where there is an absence of evidence on what would appear to be an essential element of the foreign charge in the surrender order could it be argued that the order is plainly unreasonable or unjust or oppressive, at least without an explanation of why it is not.”
[21] Turning now to the facts in this case, the applicant asserts that the evidence disclosed only two possible cocaine transactions – in contrast with the three transactions referred to in the surrender order. That is wrong. The record of the case (the evidence at the committal hearing) set out three distinct cocaine transactions, on February 9, 23 and 25, 2002. The fact that the foreign indictment which is incorporated into the surrender order places the second transaction on February 24, rather than February 23, is a minor detail and an issue for the foreign trial court. Moreover, the applicant’s argument that there is a potential that the committal was based on evidence of transactions other than those reflected in the surrender order is unfounded. Clearly, there is a sufficient nexus between the two.
[22] In my view, the applicant’s misalignment argument falls well short of establishing that the Minister’s surrender order was either “unjust or oppressive” or “plainly unreasonable”.
Trafficking by Giving
[23] The applicant submits that the American cocaine charges referred to in the surrender order are entirely dependent upon there being a committal for three instances of “trafficking by giving”. The applicant argues that the offence of “trafficking by giving” is unconstitutional because it violates s. 7 of the Charter and is not saved by s. 1.
[24] This issue was addressed by this court in its earlier decision in this case. In Saad, supra, at para. 37, the court held that it was not necessary to decide the constitutionality of “trafficking by giving” because the evidence established trafficking by other means. There was evidence of trafficking by transporting and/or by distributing.
[25] As there is no question that trafficking by these other means falls within the established definition of trafficking, the conduct that underlies the committal order constitutes an offence in Canada regardless of the merits of the applicant’s “trafficking by giving” argument. That being the case, it does not fall to the Minister or to this court on reviewing the Minister’s decision to assess the American charges against Canadian constitutional requirements.
[26] I see no merit to this ground of appeal.
Flaws in the Minister’s Decision
[27] The applicant raises a number of arguments about flaws in the Minister’s decision to order the applicant’s surrender. As I point out above, the courts play a limited role in reviewing a surrender decision. In my view, none of the flaws alleged by the applicant warrant judicial interference with the Minister’s decision.
[28] I do not agree with the applicant that the Minister relied upon irrelevant facts. It was open to the Minister to consider that if the applicant was not surrendered, Canada would be denying its extradition partner’s legitimate treaty request. In that context, it was fair for the Minister to comment that Canada should not be or be seen to be a safe haven from foreign prosecutions. The applicant was a resident in Florida at the time of the alleged offences. Florida has a legitimate interest in ensuring that the applicant be brought to justice for a proper determination of his guilt or innocence. It was relevant for the Minister to consider that if he denied surrender, the applicant would escape prosecution for those offences.
[29] Moreover, I see no error in the Minister referring to the maximum sentences for the offences in Florida. In doing so, he made the point that the remaining charges on which the applicant was being surrendered (after dropping the ecstasy charge) were still very serious and that there would be considerable room for the Florida trial court to sentence the applicant to a greater period of custody than the time served in Canada. These were proper considerations.
[30] The applicant argues that if he is extradited to the United States, he may face indefinite detention there under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, Pub. L. 107-56, 115 Stat. 272 (2001) (the “USA Patriot Act”), or failing that, he may be deported to Lebanon where he would face persecution. In the earlier surrender process, the applicant raised the same arguments. After consulting with Citizenship and Immigration Canada (“CIC”) (pursuant to s. 40(2) of the Act), Minister Cauchon concluded that it was unlikely that the applicant would face any of the dire consequences that he argued would occur. In Saad, supra, at para. 53, this court declined to interfere with the Minister’s conclusions and specifically found that it was not unreasonable for the Minister to have relied on the CIC information in making the surrender order.
[31] The applicant now argues that Minister Cotler should have reached a different conclusion – relying upon a decision of the Immigration and Refugee Board (“IRB”) in which the applicant’s sister was granted refugee protection in Canada. In that decision, dated April 18, 2004, the IRB noted among other things that the applicant’s sister would face discrimination amounting to persecution should she return to Lebanon, and that she and her family had experienced restrictions that amounted to persecution when they were in Lebanon.
[32] In the current surrender process, the applicant submitted to the Minister that his connection to Lebanon was “identical” to that of his sister and that, therefore, there was little doubt that the U.S. authorities would act against his interests on the basis of immigration or security concerns once his criminal prosecution was concluded. Thus, he argued that the scenarios envisioned in his previous submissions would come to pass.
[33] The Minister rejected these submissions. He noted that the IRB did not find that the applicant’s sister would be subject to detention in the United States for national security reasons. He also noted that the findings of the IRB were with respect to the applicant’s sister’s personal circumstances only, not those of the applicant.
[34] With respect to the possibility of deportation to Lebanon, the Minister noted that the applicant’s argument was previously rejected by Minister Cauchon and that that decision was upheld by this court. Having reviewed the new information, the Minister concluded that there was no evidence that the United States would deport the applicant or that Lebanon would be prepared to accept him. This conclusion was open to him. I see no basis to interfere with the Minister’s conclusions with respect to the immigration/deportation scenarios posited by the applicant.
[35] In the result, I would not give effect to the applicant’s arguments with respect to the alleged flaws in the Minister’s decision-making process.
Disposition
[36] For the reasons above, I would dismiss the application for judicial review.
RELEASED: “DOC” “FEB 06 2007”
“Dennis O’Connor A.C.J.O.”
“I agree M. Rosenberg J.A.”
“I agree E.A. Cronk J.A.”
[^1]: In the same vein, s. 3(1) is also permissive. It reads in part as follows:
3.(1) A person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner for the purpose of prosecuting the person or imposing a sentence on – or enforcing a sentence imposed on – the person if …