CITATION: Schreiber v. Germany (Federal Republic), 2007 ONCA 80

DATE: 20070208

DOCKET: C46387/M34701/M34703

COURT OF APPEAL FOR ONTARIO

RE:

KARLHEINZ SCHREIBER (Applicant) – and – THE FEDERAL REPUBLIC OF GERMANY and THE MINISTER OF JUSTICE and ATTORNEY GENERAL OF CANADA (Respondents)

AND RE:

THE MINISTER OF JUSTICE (Applicant/Respondent) – and – KARLHEINZ SCHREIBER (Respondent/Applicant)

BEFORE:

LANG J.A. (In Chambers)

COUNSEL:

Edward L. Greenspan Q.C. and Vanessa Christie

for the applicant/respondent Karlheinz Schreiber

Moiz Rahman

for the respondent/applicant, Attorney General of Canada

HEARD:

February 7, 2007

On a motion for release pursuant to s. 20(c) of the Extradition Act pending the determination of the judicial review of the decision of the Minister of Justice dated December 14, 2006, and on a motion to expedite the judicial review of the decision of the Minister of Justice dated December 14, 2006.

E N D O R S E M E N T

[1] Mr. Schreiber (the applicant) applies for bail pending determination of his judicial review application. That application is opposed by the Crown (the respondent), which seeks an order expediting the judicial review.

[2] The Crown concedes that it has no concern that the applicant will either flee or re-offend if released. Indeed, the applicant has complied with all terms during the many years he has been on release. However, the Crown opposes Mr. Schreiber’s current application on the basis that the judicial review is frivolous. In the alternative, the Crown argues that, even if not frivolous, the merits of the judicial review are so weak that, when combined with the delay caused by seven and a half years of extradition hearings, judicial reviews and appeals, it is in the public interest to detain the applicant.

[3] This judicial review, the second in these extradition proceedings, is based on comments reported in the German press attributed to the chief prosecutor and the judicial spokesperson for the regional court in Augsburg, Germany. Those comments were reported in March 2006 in the days following this court’s dismissal of the applicant’s first judicial review and appeal.

[4] In those reports, the chief prosecutor is reported as having given his opinion that the applicant would “definitely be imprisoned on remand” in Germany. In addition, the court spokesperson, a judge, is reported as having referred to the applicant as “the trigger of the entire affair and has caused damage to Germany”.

[5] On the basis of those comments and others, the applicant sought a reconsideration of the Minister of Justice’s earlier surrender order, arguing that the comments reflected a prejudgment of the bail hearing and an abuse of process of sufficient gravity to violate the fundamental principles of justice.

[6] On December 14, 2006, the Minister refused to reconsider his surrender decision. In doing so, he distinguished this case from United States of America v. Cobb (2001), 2001 SCC 19, 152 C.C.C. (3d) 270 (S.C.C.) on the facts. He also noted that neither the chief prosecutor nor the judicial spokesperson was assigned to the applicant’s trial in Germany and, as well, that the fact of different processes in the extradition partner’s justice system, such as a judicial spokesperson, “does not mean that they are fundamentally unfair”. It is the Minister’s refusal to reconsider his surrender decision that is the subject of the judicial review.

[7] I am unable to agree that the judicial review is frivolous because it does raise issues for consideration. However, in my view, the grounds for judicial review are far from strong.

[8] In relying on the public interest grounds, as I have said, the Crown is not concerned with the possibility that the applicant will commit further offences or interfere with the process of justice. Rather, the Crown’s concern rests with Canada’s obligation to fulfill its international commitments and to enforce the surrender order. In this sense, the Crown emphasizes the public interest in enforcing the surrender order over the public interest in the reviewability of that order.

[9] In Trinidad and Tobago (Republic) v. Raghoonanan (2003), 2003 52132 (ON CA), 173 C.C.C. (3d) 294 (Ont. C.A.) Simmons J.A. noted, in the extradition context, that the public interest in having a committal order enforced “weighs less heavily” against the granting of bail than does the public interest in the immediate enforcement of a sentence following a criminal conviction. In response, the Crown argues that the enforcement interest should be given more weight in this case because this is not simply the enforcement of a committal order, but of both committal and surrender orders that have been upheld throughout the judicial process, to and including the Supreme Court of Canada.

[10] However, even in these circumstances, I am of the view that there continues to be an important distinction between judicial interim release following extradition orders and release following sentencing dispositions. In the case of conviction and sentence, the applicant has been convicted of an offence and the Crown is seeking to maintain the enforceability of the order for punishment. With a surrender order, the applicant has not been found guilty of any crime; he continues to be presumed innocent.

[11] The Crown understandably raises the concern many would have that these proceedings have continued for seven a half years, at what this court has described as a “snail’s pace”. However, the reason for this delay is rooted in our procedures for extradition. The Crown does not suggest that the applicant has caused delay by his conduct of these proceedings.

[12] In my view, the public interest does not lie in imprisoning Mr. Schreiber simply out of frustration about the years these extradition proceedings have endured. Moreover, in this case, imprisoning the applicant will not serve the purpose sought by the Crown of enforcing the extradition, but in the absence of any other relevant concerns, will only serve to punish the applicant for availing himself of the very procedural avenues provided by Parliament. Accordingly, while the delay in this case is both frustrating and inordinate, it cannot be relevant.

[13] In saying this, I recognize the public interest that Canada fulfills its international obligations promptly. However, this new judicial review is based on statements allegedly made by the German prosecutor and spokesperson following the release of this court’s decision. Accordingly, there are new grounds for this judicial review. It is not simply a thinly-veiled attempt to relitigate earlier dispositions. Thus, I would grant the application for bail.

[14] However, as the Crown submits, this case does cry out for an expeditious disposition because Germany has suffered prejudice.

[15] Mr. Greenspan argues against the Crown’s expedition motion for two reasons. First, he wishes to undertake further investigation on the applicant’s behalf, including obtaining an affidavit about the role of the court spokesperson in the German justice system. Second, Mr. Greenspan is committed to a lengthy trial in Chicago from March until June.

[16] Regarding the first point, any further investigation needed for the applicant’s case can be completed with dispatch. In saying this, I note that the German press reports date back to March 2006 and the applicant has had the Minister’s refusal to reconsider his surrender order since December 14, 2006. On the second point, Mr. Greenspan’s Chicago commitment leaves him available on Fridays, absent any untoward scheduling problems with that case.

[17] It seems to me that the factors at issue are balanced fairly if the appeal is expedited for hearing to May 4, 2007. The applicant shall perfect his judicial review by March 23 and the respondent shall deliver its materials by April 13. The appellant will be allowed fifty minutes for argument and the respondent thirty minutes.

[18] In the result, since I am persuaded that the applicant has demonstrated that his continued detention is not necessary in the public interest, I release the applicant pending the judicial review hearing on the agreed-upon terms that have been filed with the court. As well, I am persuaded that this matter should be expedited and set May 4, 2007 as the hearing date for the judicial review application.

“S.E. Lang J.A.”