Schreiber v. The Minister of Justice [Indexed as: Schreiber v. Canada (Minister of Justice)]

87 O.R. (3d) 641

Court of Appeal for Ontario,

Doherty, Feldman and Armstrong JJ.A.

November 20, 2007

Criminal law -- Extradition -- Surrender -- Refusal of Minister to reconsider previous surrender order being subject to same level of deference as original order -- Minister not erring in giving significant weight to need for finality or in concluding that applicant did not raise any new issues -- Application for judicial review of Minister's decision dismissed.

The applicant brought an application for judicial review of the Minister of Justice's refusal to reconsider a decision by the previous Minister to surrender the applicant for extradition.

Held, the application should be dismissed.

A decision to refuse to consider a surrender order is subject to at least the same high level of deference as the original decision. The Minister did not err in stressing the need for finality or in concluding that there was nothing new in the submissions made by the applicant that would merit reconsideration of the original decision.

APPLICATION for judicial review from the decision of the Honourable Robert Nicholson, Minister of Justice and Attorney General of Canada, on an application brought pursuant to s. 43(2) of the Extradition Act, for refusal to reconsider a surrender order.

Statutes referred to Extradition Act, S.C. 1999, c. 18, s. 43(2)

Edward L. Greenspan, Q.C. and Brian H. Greenspan, for applicant. Nancy Dennison and Richard Kramer, for respondent.

[1] Endorsement by THE COURT: -- We are in a position to address the ultimate merits of the judicial review application brought by Mr. Schreiber. We do not regard the bringing of this application as an abuse of process. The applicant was entitled under the Extradition Act to seek judicial review of the decision of the Minister. We do not propose to address the submissions made by the respondent in support of the abuse of process claim any further.

[2] The Minister's decision was made under s. 43(2) of the Extradition Act, S.C. 1999, c. 18. He, in effect, declined to reconsider the surrender decision made by a previous Minister of Justice and confirmed by another Minister of Justice. [page642]

[3] The ultimate decision to surrender for extradition following judicial committal for extradition is essentially a political decision. Any judicial review of that decision must give significant deference to the decision made by the Minister. A subsequent decision by the Minister to refuse to reconsider a surrender order is subject to at least the same level of deference. The statutory language in s. 43(2) of the Extradition Act further demonstrates the discretionary nature of the Minister's decision.

[4] The Minister declined to reconsider the surrender order for two reasons. First, he concluded that there was nothing new in the submissions made to him by counsel for Mr. Schreiber that would merit reconsideration of the decision. Second, the Minister stressed the need for finality, particularly in the extradition context.

[5] In our view, it was a reasonable assessment of the issues raised in the material put before the Minister to describe that material as not raising anything new in substance that had not been raised previously before the Minister or the courts in the previous proceedings. We are also satisfied that the Minister was entitled to give significant weight to finality concerns given the history of this matter.

[6] Mr. Greenspan also submitted that the Minister did not address the request for reassessment on its merits, but had predetermined the matter before examining any of the material forwarded to the Minister on Mr. Schreiber's behalf. The record before us does not support that submission and we cannot accept it.

[7] The applicant placed before this court an opinion from Professor Byers concerning Canada's international law obligations as they relate to the issue raised before the Minister. That opinion was not before the Minister. Therefore, it does not assist us in our review of the reasonableness of the Minister's exercise of his discretion.

[8] The application for judicial review is dismissed.

Application dismissed. [page643]