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

90 O.R. (3d) 381

Court of Appeal for Ontario,

Doherty J.A.

April 15, 2008

Criminal law -- Extradition -- Judicial review -- Bail pending judicial review -- Applicant seeking bail pending his application for judicial review of decision of Minister to order his surrender for extradition -- Bail granted -- Judicial review application not being so devoid of merit as to be frivolous -- Applicant meeting other statutory criteria for bail pending judicial review.

The applicant brought an application for release pending judicial review of the decision of the Minister to order his surrender for extradition.

Held, the application should be granted. [page382]

The application was not so devoid of merit as to be frivolous. The power of the Minister to decline to consider further submissions under s. 43(2) of the Extradition Act, S.C. 1999, c. 18 did not appear to have been addressed in the case law, and the issue was potentially of some significance to the operation of the Act and the conduct of the Minister. The respondent acknowledged that the applicant met the other statutory criteria governing bail pending judicial review.

APPLICATION for bail pending judicial review.

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

Edward L. Greenspan, Q.C., for appellant. Nancy Dennison, for respondent.

[1] ENDORSEMENT OF THE COURT: -- The merits of this most recent in a stream of judicial review applications may be dubious. I cannot say, however, at this stage of the proceedings, that the application is so devoid of merit as to be "frivolous" within the meaning of the statutory provisions governing bail pending judicial review.

[2] The power of the Minister to decline to consider further submissions under s. 43(2) of the Extradition Act, S.C. 1999, c. 18 does not appear to have been addressed in the case law. The issue is potentially of some significance to the operation of the Act and the conduct of the Minister. The applicant has made a showing of sufficient merit to clear the very low bar set in the provision governing bail pending judicial review.

[3] The respondent acknowledges that the applicant meets the other statutory criteria for release pending judicial review. He has been on bail without incident for eight and a half years.

[4] An order will go releasing the applicant on the same terms as the release order made by Sharpe J.A. and dated December 4, 2007, with the following variations:

-- Paragraph 1 of the order will be varied to require the applicant to surrender as directed by the court or a judge of the court; and

-- The sureties shall be those listed in the order of Sharpe J.A. save that Michael Cochrane shall not be a surety and John Harding shall be a surety in the amount of $350,000.

[5] The respondent requests an expedited hearing of the judicial review application. I direct that the applicant perfect the [page383] application no later than May 15, 2008. After the application is perfected, counsel may arrange to speak to me and I will fix a date for the hearing.

[6] Lastly, as explored with counsel in the course of oral submissions, I am troubled by the notion that the applicant should be in custody regardless of whether he is seeking judicial review of the Minister's decision. His custody is justifiable only as an incident of his surrender to Germany in accordance with Canada's international obligations. He is detained to facilitate his surrender. The respondent does not suggest that there is any other possible justification for his custody.

[7] The respondent has also acknowledged that it is currently not in the public interest to surrender the applicant to Germany pending his testimony in Canada at an upcoming public inquiry. Consequently, as matters now stand, and they could change, the applicant will not be surrendered to Germany for some time. If he is not going to be surrendered, I do not know how his custody can be justified as an incident to that surrender.

[8] The problem outlined above is to my knowledge unique to this case and it may be that some procedural and remedial ingenuity is necessary to meet the circumstances of this case. Custody should not, however, be a default position brought about by procedural or remedial deficiencies. Custody that cannot be justified on the grounds associated with custody in the extradition context may well engage Canadian Charter of Rights and Freedoms protections.

[9] As I am satisfied that the applicant can be released under the bail provisions governing judicial review applications, I do not have to come to grips with the question of his continued custody apart from any judicial review application. That issue, however, may arise at some point in the future.

Application granted.