Minister of Justice of Canada v. Fischbacher [Indexed as: United States of America v. Fischbacher]

91 O.R. (3d) 401

Court of Appeal for Ontario,

Doherty and MacFarland JJ.A. and Kent J. (ad hoc)

August 1, 2008

Criminal law -- Extradition -- Surrender -- Applicant charged with first degree murder in Arizona -- United States requesting his extradition on that charge -- Minister signing Authority to Proceed which stated that Canadian offence corresponding to alleged conduct was murder contrary to s. 231 of Criminal Code without specifying first or second degree murder -- Extradition judge finding that there was no evidence in record of planning or deliberation and committing applicant for extradition on charge of second degree murder -- Evidence before Minister establishing that requirement of premeditation for first degree murder in Arizona is akin to requirements of planning and deliberation in Canada and that penalty for first degree murder is significantly greater than penalty for second degree murder -- Minister ordering applicant surrendered on charge of first degree murder and taking position that first and second degree murder are same offence -- No evidence of premeditation being led at committal stage -- Premeditation essential element of Arizona offence of first degree murder -- Minister's decision unreasonable in absence of evidence of essential element of foreign offence. -- Criminal Code, R.S.C. 1985, c. C-46, s. 231.

The applicant was charged with first degree murder in Arizona. The United States of America requested his extradition on that charge. The Minister signed an Authority to Proceed which stated that the Canadian offence corresponding to the alleged conduct was "murder, contrary to s. 231 of the Criminal Code". The extradition judge held that the reference to "murder contrary to s. 231 of the Criminal Code" must be taken as alleging a charge of second degree murder as the Criminal Code bars a conviction on first degree murder unless the indictment specifically charges that offence. As an alternative position, counsel for the requesting state argued that the Minister's Authority to Proceed should be amended to allege first degree murder. The extradition judge found that there was no evidence in the record before him that the murder was planned and deliberate, and committed the applicant for extradition on the charge of second degree murder. The Minister was provided with an opinion that the requirement for premeditation for first degree murder in Arizona is akin to the requirements of planning and deliberation for first degree murder in Canada, and that the punishment for first degree murder in Arizona, even excluding the possibility of the death penalty, is significantly greater than the potential penalty for second degree murder. The Minister ordered the applicant surrendered on a charge of first degree murder. He rejected the contention that he was surrendering the applicant on an offence that was different from the offence for which the extradition judge had committed him, stating that under Canadian law, first and second degree murder are not different offences. The applicant applied for judicial review of the surrender order.

Held, the application should be granted.

Where there is no evidence at the committal stage of an essential element of the foreign charge, the surrender order is plainly unreasonable, in the absence of an explanation from the Minister as to why it is not. In this case, the requesting state failed to adduce any evidence in the committal proceeding to support a finding of premeditation, an essential element of the charge of first degree murder as defined in Arizona. The Minister's decision to surrender the applicant was presumptively unreasonable, unless there was some adequate explanation from the Minister. The reasonableness of the Minister's order did not depend on the treatment of first and second degree murder under domestic law. The reasonableness of the order depended on whether there was a total absence of evidence at the committal stage on an essential element of the foreign offence for which the Minister ordered the applicant surrendered. Whether first and second degree murder are characterized in Arizona as distinct and separate offences or as branches of the same crime, they are substantively different. Given the absence of any evidence of premeditation at the committal hearing, the Minister's decision to surrender the applicant for the clearly more serious allegation of first degree murder was substantively inconsistent with the evidence led at the committal hearing. The Minister's decision that it would not be unjust in the circumstances to surrender the applicant on the more serious charge was unreasonable.

APPLICATION for judicial review of the Minister's surrender order.

Cases referred to United States of America v. Gorcyca, [2007] O.J. No. 395, 2007 ONCA 76, 220 O.A.C. 35, 216 C.C.C. (3d) 403, 73 W.C.B. (2d) 120; United States of America v. Kissel (2008), 89 O.R. (3d) 481, [2008] O.J. No. 1127, 2008 ONCA 208, 234 O.A.C. 251, 77 W.C.B. (2d) 184; United States of America v. Reumayr, [2005] B.C.J. No. 1705, 2005 BCCA 391, 214 B.C.A.C. 261, 199 C.C.C. (3d) 1, 66 W.C.B. (2d) 683 (C.A.); United States of America v. Saad, [2007] O.J. No. 396, 2007 ONCA 75, 219 O.A.C. 296, 216 C.C.C. (3d) 393, 72 W.C.B. (2d) 453, apld Other cases referred to Lake v. Canada (Minister of Justice), [2008] S.C.J. No. 23, 2008 SCC 23, 292 D.L.R. (4th) 193, 373 N.R. 339, J.E. 2008-970, 72 Admin. L.R. (4th) 30, 230 C.C.C. (3d) 449, 56 C.R. (6th) 336, EYB 2008-132986; R. v. Droste, 1984 CanLII 68 (SCC), [1984] 1 S.C.R. 208, [1984] S.C.J. No. 11, 6 D.L.R. (4th) 607, 52 N.R. 176, 3 O.A.C. 179, 10 C.C.C. (3d) 404, 39 C.R. (3d) 26, 11 W.C.B. 467; United States of America v. Fischbacher, [2007] O.J. No. 4235, 76 W.C.B. (2d) 62 (S.C.J.); United States of America v. Reumayr, [2003] B.C.J. No. 1504, 2003 BCCA 375, 184 B.C.A.C. 251, 176 C.C.C. (3d) 377, 58 W.C.B. (2d) 237 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 229, 231 [as am.], 235, 582, 745 [as am.] Extradition Act, S.C. 1999, c. 18, ss. 15, 23(2), 29(1), 44(1), 58(b) Ariz. Rev. Stat. 13.703 (2008) Ariz. Rev. Stat. 13.710 (2008)

Vincenzo Rondinelli, for applicant. Nancy Dennison and Chris de Sa, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: --

I. Overview

[1] The applicant is charged with first degree murder in the state of Arizona in the United States. He was arrested in Canada in October 2006, and in December 2006 the United States requested his extradition on the charge of first degree murder. In January 2007, the respondent (the Minister of Justice) authorized the Attorney General of Canada to proceed with the extradition request on the charge of murder contrary to s. 231 of the Criminal Code, R.S.C. 1985, c. C-46. In June 2007, the extradition judge, O'Neill J., ordered the applicant committed on the charge of second degree murder. He provided reasons for that decision in October 2007: see United States of America v. Fischbacher, [2007] O.J. No. 4235, 76 W.C.B. (2d) 62 (S.C.J.). In March 2008, the Minister ordered the applicant surrendered on the charge of first degree murder under the Arizona statute, subject to receiving the necessary assurances that the death penalty would not be imposed or carried out.

[2] The applicant seeks judicial review. He submits that the Minister's decision to surrender him on the charge of first degree murder as defined in the Arizona statute is unreasonable because at the extradition hearing the requesting state failed to lead any evidence of premeditation, an essential element of the offence under Arizona law. Based on this "misalignment", he submits the surrender order must be quashed.

[3] I agree with the applicant's contention. I would quash the order of the Minister and remit the matter to the Minister for further consideration in light of these reasons.

II. Prior Proceedings

[4] The applicant is charged in Tucson, Arizona with one count of first degree murder. The extradition judge summarized the allegations in para. 1 of his reasons:

It is alleged by the Pima County Attorney's Office in Tucson, Arizona that on October 5th, 2006, Henry Fischbacher and Lisa Fischbacher, husband and wife, were engaged in an argument at their home at 9870 North Eastern Fork Trail in Tucson, Arizona. In the amended record of the case for the prosecution, the prosecution alleges that Mr. Fischbacher struck his wife in the head several times with a flashlight. After she fell unconscious, he dragged her to the swimming pool in the backyard and held her underwater for several minutes. Lisa Fischbacher was later found in the swimming pool by law enforcement authorities and pronounced dead. A forensic pathologist performed an autopsy on her and determined that the cause of death was multiple traumatic injuries, including blunt injuries to the head and findings consistent with asphyxia.

[5] In October 2006, a grand jury in Tucson, Arizona issued an indictment charging the applicant with one count of first degree murder in violation of the relevant Arizona statute. The United States requested extradition on that charge in December 2006.

[6] On January 8, 2007, the Minister signed the Authority to Proceed ("ATP") required under s. 15 of the Extradition Act, S.C. 1999, c. 18 (the "Act"). The ATP read:

The Minister of Justice authorizes the Attorney General of Canada to proceed before the Superior Court of Justice to seek an order for the committal of Henry C. Fischbacher who is being sought for prosecution by the United States of America. The Canadian offence which corresponds to the alleged conduct is:

Murder, contrary to s. 231 of the Criminal Code. (Emphasis added)

[7] The ATP did not particularize the charge as first or second degree murder.

[8] The judicial phase of the extradition process proceeded in June 2007. At para. 8 of his reasons, the extradition judge observed that s. 29(1) of the Act required him to commit where:

[T]here is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed . . . .

[9] The extradition judge held that the reference to "murder contrary to s. 231 of the Criminal Code" must be taken as alleging a charge of second degree murder. In coming to that conclusion, he relied heavily on s. 582 of the Criminal Code, which provides that no one can be convicted on the charge of first degree murder unless the indictment specifically charges that offence. At para. 21, he held:

The selection of the word murder by the Minister deems, as a matter of law, that the corresponding Canadian offence is second degree murder. The wording of an offence in an ATP should be given its settled legal meaning. For several decades now, as a matter of law, an indictment charging an accused with "murder" is deemed to be a charge of second degree murder.

[10] The extradition judge next considered the argument advanced on behalf of the USA that he should authorize an amendment of the ATP, pursuant to s. 23(2) of the Act, to allege first degree murder. After considering the legal meaning of the words planned and deliberate and examining the evidence in the record before him, he concluded, at para. 35:

There is no evidence that the murder was both planned and deliberate. There is no indication that it was a calculated scheme or design that had been carefully thought out, or that the consequences of murder had been thought over and sized up.

[11] The extradition judge committed the applicant for extradition on the offence of second degree murder. There was no appeal from that order.

[12] In keeping with the scheme of the Act, it then fell to the Minister to determine whether the applicant should be surrendered and, if so, for what offence. In written submissions, counsel for the applicant took the position that the applicant should be surrendered on the offence of second degree murder contrary to the relevant Arizona statute. Counsel provided an opinion from an Arizona lawyer that the requirement of premeditation for first degree murder in Arizona was akin to the requirements of planning and deliberation for first degree murder in Canada. Counsel also provided the relevant statutory material from Arizona indicating that the punishment for first degree murder, even excluding the possibility of the death penalty, was significantly greater than the potential penalty for second degree murder. Counsel made this submission to the Minister:

[T]he evidence in this matter and the legal conclusions on that evidence reached at the committal hearing have the impact of foreclosing a surrender Order framed such as to permit Mr. Fischbacher to be surrendered to the United States for trial for the offence of 1st degree murder, contrary to the Criminal Code of Arizona. It is conceded, however, that a surrender order would be appropriate that surrendered Mr. Fischbacher to the United States for trial for the offence of 2nd degree murder contrary to the Criminal Code of Arizona. (Emphasis added)

[13] In exercising his discretion in favour of surrendering the applicant on the charge of first degree murder, the Minister rejected the contention that he was surrendering the applicant on an offence that was different from the offence for which the committal judge had committed him for surrender. The Minister opined:

Under Canadian law, first and second degree murder are not different offences. The classification of murder as either first or second degree is for sentencing purposes only and relates to the punishment that will be imposed upon conviction. Accordingly, in the context of extradition, once the extradition judge has concluded there is sufficient evidence to justify a committal for the Canadian offence of murder, double criminality has been established for any foreign murder charge irrespective of the degree. (Citations omitted; emphasis added)

III. Is the Surrender Order Unreasonable?

[14] Counsel for the Minister sees this application as engaging the fundamental principles underlying the extradition process in Canada. I think the ambit is considerably narrower than that. I begin my analysis with a description of what I see as the relatively confined metes and bounds of the issue raised on this application.

[15] The Act gives the Minister broad powers of surrender. Section 58(b) expressly contemplates that in exercising that broad surrender power the Minister may surrender a fugitive on "the offence in respect of which the extradition is requested". Nothing argued by the applicant questions the Minister's statutory power to surrender a fugitive on the foreign offence for which extradition was requested.

[16] I also do not interpret the applicant's submissions as engaging the double criminality principle. The Minister's surrender order clearly respects that principle. The conduct alleged by the requesting state constitutes the crime of murder in Canada.

[17] Finally, the applicant does not challenge the now well-established standard of review that must be applied to a Minister's surrender decision. This court must show deference to the Minister's surrender decision and will interfere with the Minister's decision only if in all of the circumstances his decision is properly described as unreasonable: see Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] S.C.J. No. 23, 230 C.C.C. (3d) 449, at para. 34.

[18] The applicant accepts that the Act gives the Minister a broad discretion on the question of surrender. However, s. 44(1) of the Act 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

[19] Counsel for the applicant accepts that it is for the Minister to decide whether surrender would be "unjust or oppressive". He contends, however, that the Minister's assessment is subject to review on a reasonableness standard.

[20] He also argues that in the circumstances it was unreasonable for the Minister to conclude that it would not be unjust or oppressive to surrender the applicant on the charge of first degree murder. Counsel submits that the feature that makes the exercise of the Minister's discretion unreasonable is the extradition judge's unchallenged determination that there was no evidence of planning and deliberation and his unchallenged order that the applicant should be surrendered on the charge of second degree murder.

[21] The applicant's attack on the reasonableness of the Minister's exercise of his discretion is based exclusively on what the case law describes as a "misalignment" between the offence for which the Minister ordered the applicant surrendered and evidence adduced at the committal proceedings. Both the British Columbia Court of Appeal and this court have held that this "misalignment" may render the surrender decision unreasonable: see United States of America v. Reumayr, 2003 BCCA 375, [2003] B.C.J. No. 1504, 176 C.C.C. (3d) 377 (C.A.); United States of America v. Gorcyca, 2007 ONCA 76, [2007] O.J. No. 395, 216 C.C.C. (3d) 403 (C.A.); United States of America v. Saad, 2007 ONCA 75, [2007] O.J. No. 396, 216 C.C.C. (3d) 393 (C.A.); and United States of America v. Kissel (2008), 2008 ONCA 208, 89 O.R. (3d) 481, [2008] O.J. No. 1127 (C.A.).

[22] In Reumayr, the first of the "misalignment" cases, the United States sought the applicant's extradition on charges that alleged an attempt to blow up the Trans-Alaska Pipeline. The ATP issued by the Minister referred to the Criminal Code offences as possession of an explosive substance, possession of materials with intent to cause the explosion of explosive substances, attempted arson and attempted mischief. After a hearing, the extradition judge committed the fugitive on the two possession charges, but declined to commit him on the attempted arson and attempted mischief charges. The Minister subsequently ordered the fugitive surrendered on the charges as framed in the request for extradition, including the charge alleging the attempt to bomb the Trans-Alaska Pipeline.

[23] On judicial review of the surrender order, the Minister argued that his surrender power was not limited to the Canadian offences on which the extradition judge had ordered committal. The court agreed that the surrender order was not subject to that limitation. However, it further held that the surrender power could not be exercised without regard to the committal proceedings and the order made in those proceedings. Substantive inconsistencies or misalignments between the committal proceedings and the surrender order would render the surrender order unreasonable. The court said, at para. 42:

[T]he statutory scheme does not authorize extradition for offences that substantively exceed the offences that are supported in the committal proceedings. 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)

[24] The court went on to hold that where the Minister surrenders a fugitive for a different offence than the offence for which the fugitive was committed, the Minister should explain why the difference is not a substantive one. The court remitted the matter to the Minister to determine whether his surrender order on the charge of attempting to bomb the Trans-Alaska Pipeline was "substantively consistent" (para. 44) with the extradition judge's committal order on the possession charges only. [See Note 1 below]

[25] The three cases in this court that have followed and applied Reumayr demonstrate that differences between the offence in the surrender order and the offence for which the fugitive was committed will render the surrender order unreasonable only in limited circumstances. In Gorcyca, supra, the first of the three cases, Goudge J.A. began by rejecting (at para. 55) the fugitive's argument that the principle of double criminality required that the conduct alleged in the surrender order coincide with the Canadian offence for which the fugitive had been committed. He said:

The Minister can order surrender in terms of the foreign offence for which extradition is sought if the conduct alleged by the foreign state to be sufficient for the foreign prosecution has been found both admissible under the Act and sufficient, if committed here, to justify committal for a Canadian offence that corresponds to that conduct. That is exactly what happened here.

[26] Goudge J.A. then considered a more limited "misalignment" argument. Referring to the above-quoted passage from Reumayr, Goudge J.A. said, at para. 64:

In my view, only 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. In such circumstances it could well be plainly unreasonable to deport someone where, from Canada's perspective, there would seem to be no possibility of a just conviction. (Emphasis added)

[27] Goudge J.A. was careful to distinguish between cases where there was some evidence to support all of the essential elements of the foreign charge led at the committal and cases where there was no evidence of an essential element. It was only in the latter circumstance that surrender on the foreign charge would amount to surrender for an offence substantially beyond that supported by the evidence.

[28] In Saad, supra, O'Connor A.C.J.O., at para. 20, applied the Gorcyca analysis. He held that a surrender order listing the foreign offence in the request would be unreasonable only if there was a total absence of any evidence at the committal proceeding to support what appeared to be an essential element of the foreign charge. After examining the record and the nature of the allegations in Saad, the Associate Chief Justice found that any difference between the offence as described in the surrender order and the evidence adduced at the committal proceedings related to matters of detail and did not result in any substantive difference between the surrender order and the evidence led at the committal proceeding.

[29] In Kissel, supra, the most recent of the "misalignment" cases, the ATP referred to various Criminal Code offences, including conspiracy to commit money laundering and a charge of obstruction of justice by tampering with witnesses. There was no evidence led to support these two charges at the committal proceedings. Counsel for the requesting state did not seek the committal of the fugitive on those charges. The extradition judge did not commit on those two charges but did commit on other charges set out in the ATP.

[30] The Minister ordered the fugitive surrendered on several offences as described in the documentation from the requesting state. These included the conspiracy and witness tampering charges on which the Attorney General had not sought committal and the extradition judge had not committed.

[31] The court allowed the application for judicial review and set aside the surrender order on the charges of conspiracy and witness tampering. Sharpe J.A., at paras. 39-40, explained that ordering the fugitive surrendered for charges that were before the extradition judge but in support of which no evidence was led constituted an unreasonable exercise of the Minister's discretion.

[32] Coming back to the facts of this case, on the material before the Minister, the charge of first degree murder as defined in Arizona required proof that the murder was premeditated. The extradition judge found, and the Minister does not question this finding, that there was no evidence led at the committal proceeding that could support a finding that the alleged murder was planned and deliberate. The Minister also had information that the concept of premeditation as applied under Arizona law was similar to the notion of planning and deliberation under Canadian law.

[33] Applying the analysis in Gorcyca, supra, the requesting state failed to adduce any evidence in the committal proceeding to support a finding of premeditation, an essential element of the charge of first degree murder as defined in Arizona. Despite this failure, the Minister chose to surrender on that charge. Again, applying the Gorcyca analysis, that decision is presumptively unreasonable, unless there is some adequate explanation from the Minister.

[34] The Minister's letter explaining his surrender decision does not acknowledge any inconsistency between the offence on which he ordered the applicant surrendered and the committal proceedings. It would seem that the Minister perceived no misalignment because "under Canadian law, first and second degree murder are not different offences". It would also seem that the Minister regarded any complaint about the differences between the offence for which the applicant was ordered surrendered and the offence for which the applicant was ordered committed as engaging only double criminality concerns. He said:

Accordingly, in the context of extradition, once the extradition judge has concluded that there is sufficient evidence to justify a committal for the Canadian offence of murder, double criminality has been established for any foreign murder charge irrespective of the degree.

[35] As the "misalignment" cases establish, the reasonableness of the Minister's surrender order does not depend exclusively on whether that order offends the double criminality principle. As indicated above, I do not think the Minister's surrender order runs afoul of that principle. The question is whether the Minister acted unreasonably in deciding that it was not unjust to order the applicant surrendered on a charge of first degree murder after the requesting state failed to lead any evidence to support an essential element of that charge at the committal proceeding.

[36] The Minister observed that first and second degree murder are not distinct crimes in Canada. It would appear that he drew the further conclusion that because first and second degree murder are two categories of the single crime of murder, there is no substantive difference under Canadian law between first and second degree murder. Because the two crimes are the same offence, there could be no "misalignment" between a surrender order on first degree murder and a committal order on second degree murder.

[37] The Minister correctly describes first and second degree murder as defined in the Criminal Code: see R. v. Droste, 1984 CanLII 68 (SCC), [1984] 1 S.C.R. 208, [1984] S.C.J. No. 11, 10 C.C.C. (3d) 404, at p. 414 C.C.C.; however, the mere fact that the Criminal Code is structured to make first and second degree murder branches of the single crime of murder does not mean that there are not substantive differences between the two levels of murder. There are important and significant differences in the essential elements of first and second degree murder and in the potential penalties applicable upon conviction: see Criminal Code, ss. 229, 231, 235 and 745.

[38] More to the point, under the "misalignment" cases, the reasonableness of the Minister's order does not depend on the treatment of first and second degree murder under Canadian domestic law. The reasonableness of that order depends on whether there was a total absence of evidence at the committal proceedings on an essential element of the foreign crime for which the Minister ordered the applicant surrendered. It is unchallenged that premeditation is an essential element of the only potentially applicable definition of first degree murder in the Arizona statute. It is also accepted that the requesting state led no evidence of premeditation at the committal proceeding. The injustice lies in the surrender of the applicant on the Arizona charge of first degree murder when no evidence to support an essential element of that charge was led at the committal. It is no answer to that injustice to observe that in Canada first and second degree murder are but two categories of the substantive crime of murder.

[39] When considering whether surrender on the charge of first degree murder as defined in the Arizona statute was substantively beyond the second degree murder charge supported by the evidence at the committal hearing, it is also helpful to examine the potential penalties for first and second degree murder under Arizona law. Apart from circumstances that have no application here, a person convicted of second degree murder is sentenced to a presumptive term of 16 calendar years. That term may be mitigated or aggravated by up to six years, depending on the circumstances of the particular case: see Ariz. Rev. Stat. 13-710 (Lexis 2008).

[40] Setting aside the death penalty, a person convicted of first degree murder in Arizona faces life imprisonment. Under the legislation, life imprisonment can mean "natural life" in which case the convicted person is not ever eligible for parole or any form of release. Life imprisonment may also mean a "life sentence". A convicted person who receives a "life sentence" is, subject to certain situations that do not apply here, eligible for parole after 25 years: see Ariz. Rev. Stat. 13-703 (Lexis 2008).

[41] I am satisfied that whether first and second degree murder are characterized in Arizona as distinct and separate offences or as branches of the same crime, they are substantively different, just as they are in Canada. Given the absence of any evidence of premeditation at the committal proceeding, the Minister's decision to surrender the applicant for the clearly more serious allegation of first degree murder is substantively inconsistent with the evidence led at the committal hearing. The Minister's decision that it would not be unjust in these circumstances to surrender the applicant on the more serious charge is unreasonable.

IV. Conclusion

[42] I would allow the application, quash the surrender order and remit the matter to the Minister for further consideration in accordance with these reasons.

Application granted.

Notes

Note 1: The case subsequently returned to the British Columbia Court of Appeal on issues that are irrelevant to this application: see United States of America v. Reumayr, 2005 BCCA 391, [2005] B.C.J. No. 1705, 199 C.C.C. (3d) 1 (C.A.).