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

91 O.R. (3d) 641

Court of Appeal for Ontario,

Laskin, Simmons and Epstein JJ.A.

August 6, 2008

Criminal law -- Extradition -- Surrender -- Minister of Justice ordering applicant's surrender to Germany in 2004 to stand trial for fiscal offences -- Current Minister refusing to accept applicant's further submissions -- Applicant's application for judicial review of that decision dismissed -- Applicant's reciprocity concerns based on fact that Germany would not extradite its own nationals to Canada for fiscal offences having been addressed by former Minister and not raising any new issues of substance.

In 2004, the then Minister of Justice ordered that the applicant be surrendered to Germany to face charges corresponding to the Canadian offences of tax evasion, fraud, uttering a forged document, obtaining a secret commission and bribery of a public official. The applicant's application for judicial review of the surrender order was dismissed, and the Supreme Court of Canada denied his request for leave to appeal. The current Minister of Justice refused to accept the applicant's further submissions on the basis that they raised no new issues of substance that justified reconsideration of the surrender order. The applicant applied for judicial review of that decision.

Held, the application should be dismissed.

It was open to the current Minister to find that the applicant's arguments concerning the former Minister's failure to exercise his discretion under Article V of the Treaty between Canada and the Federal Republic of Germany Concerning Extradition to refuse to extradite Canadian nationals did not raise a new issue of substance. Although the former Minister did not refer specifically to Article V, it was unrealistic to suggest that he was not aware of, or did not consider, his discretion under Article V. The former Minister addressed the applicant's submission that interpreting the Treaty as permitting Canada to extradite for fiscal offences when Germany would not extradite anyone to Canada for fiscal offences violated the principle of reciprocity and would shock the conscience of Canadians, and concluded that reciprocity is not a precondition to extradition and that the important and compelling objectives of extradition trumped the reciprocity concerns raised by the applicant. In his new submissions, the applicant raised more narrow reciprocity concerns, relying on the fact that Germany would refuse to extradite its own citizens for fiscal offences. It was open to the current Minister to conclude that those more narrow reciprocity concerns did not raise a new issue of substance. Finally, the applicant failed to explain how subsection 3 of Article V would have any practical application in the circumstances of this case, and in particular failed to explain how Canada would have territorial jurisdiction to prosecute him in relation to any of the charges he was facing in Germany.

The record failed to establish any foundation for the applicant's arguments based on bias or conflict of interest on the part of the Minister.

The current Minister's reasons for refusing to accept the new submissions were adequate, and the applicant was not denied natural justice. [page642]

APPLICATION for judicial review of a decision of the Minister of Justice not to accept further submissions concerning a surrender order.

Cases referred to Germany (Federal Republic) v. Rauca (1983), 1983 CanLII 1774 (ON CA), 41 O.R. (2d) 225, [1983] O.J. No. 2973, 145 D.L.R. (3d) 638, 4 C.C.C. (3d) 385, 34 C.R. (3d) 97, 4 C.R.R. 42, 9 W.C.B. 325 (C.A.); Lake v. Canada (Minister of Justice), [2008] S.C.J. No. 23, 2008 SCC 23, EYB 2008-132986, J.E. 2008-970, 230 C.C.C. (3d) 449, 373 N.R. 339, 292 D.L.R. (4th) 193, 236 O.A.C. 371, 56 C.R. (6th) 336, 72 Admin. L.R. (4th) 30; United States v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469, [1989] S.C.J. No. 56, 96 N.R. 321, J.E. 89-920, 23 Q.A.C. 182, 48 C.C.C. (3d) 193, 42 C.R.R. 101, 7 W.C.B. (2d) 301 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 6 Extradition Act, S.C. 1999, c. 18, s. 43(2) Treaties and conventions referred to Treaty between Canada and the Federal Republic of Germany Concerning Extradition, 11 July 1977, Can. T.S. 1979 No. 18, arts. I, V, (3)

Edward L. Greenspan, Q.C., and Vanessa Christie, for applicant. Richard Kramer and Howard Piafsky, for respondent.

[1] BY THE COURT: -- The applicant seeks judicial review of the Minister of Justice's decision not to accept the applicant's further submissions filed on February 19, 2008 concerning a 2004 surrender order made in an extradition proceeding.

I. Background

[2] The surrender order arose from an extradition proceeding commenced in 1999. On October 31, 2004, then Minister of Justice Irwin Cotler ordered that the applicant be surrendered to Germany to face trial on charges corresponding to the Canadian offences of tax evasion, fraud, uttering a forged document, obtaining a secret commission and bribery of a public official. Among other things, Germany alleges that the applicant: -- hid commission income and made false and fraudulent statements to avoid paying tax on the commission income; -- bribed the German Deputy Minister of Defence to help arrange the sale of 36 German army tanks to Saudi Arabia; and [page643] -- assisted two directors of a German company in defrauding Saudi Arabia through a secret commission contract relating to the sale of the 36 tanks.

[3] On March 1, 2006, this court dismissed the applicant's request for judicial review of the surrender order and the Supreme Court of Canada subsequently denied his request for leave to appeal this court's decision. The February 19, 2008 submissions are the applicant's third set of further submissions requesting that the 2004 surrender order be reconsidered; this application is the applicant's fourth request for judicial review.

[4] On March 3, 2008, the Minister of Justice agreed to the applicant's request that his surrender be delayed so that the applicant may testify at the Mulroney-Schreiber public inquiry.

II. The Decision under Review

[5] The Minister of Justice declined to accept the applicant's February 19, 2008 further submissions by letter dated March 17, 2008. In brief reasons explaining this exercise of his discretion under s. 43(2) of the Extradition Act, S.C. 1999, c. 18, the Minister stated that he had carefully reviewed the 2008 further submissions and was satisfied that they "raise[d] no new issues of substance that justif[ied] reconsideration of the order of surrender". Further, relying on this court's November 15, 2007 decision dismissing the applicant's third request for judicial review, the Minister said he was "entitled to give significant weight to finality concerns given the history of this matter".

III. Analysis

[6] The applicant raises three issues on his request for judicial review of the Minister's March 17, 2008 decision.

(i) Failure to address his discretion to refuse to extradite nationals

[7] First, the applicant submits that the Minister erred by failing to recognize and address his absolute discretion under Article V of the Treaty between Canada and the Federal Republic of Germany Concerning Extradition to refuse to extradite Canadian nationals.

[8] Article V of the Treaty provides that neither contracting party is required to extradite its own nationals. Further, where extradition is refused solely on the ground that the person sought [page644] is one of the requested state's own nationals, subsection 3 of Article V requires that, if asked, the requested state shall "take all possible measures in accordance with its own law to prosecute the person claimed". [See Note 1 below]

[9] The applicant is a citizen of both Canada and Germany. In his February 19, 2008 further submissions, the applicant claimed that Minister Cotler's statement in the 2004 surrender decision that he had "determined that there are no other considerations that would justify ignoring Canada's obligations under the [Treaty]" demonstrates that Minister Cotler did not appreciate that he had a discretion under the Treaty to refuse to surrender Canadian nationals.

[10] The applicant submitted that because Germany does not surrender its nationals, surrendering him for extradition would violate the principle of reciprocity. He claimed that subsection 3 of Article V of the Treaty provides a solution to this problem and asked that the Minister refuse to surrender him for extradition and consider prosecuting him in Canada if requested by Germany.

[11] In this court, the applicant submits that the Minister's failure to at least provide reasons for declining to exercise his discretion under Article V is a violation of the applicant's s. 6 Canadian Charter of Rights and Freedoms right to remain in Canada that cannot be justified under s. 1 of the Charter. Relying on a provision in Germany's constitution that disallows the extradition of nationals, he contends that the Minister has a duty under the Treaty, as an incident of procedural fairness and reciprocity, to protect the interest of Canadian nationals. [page645]

[12] The applicant notes that 31 out of 49 bilateral extradition treaties signed by Canada contain language permitting either signatory to refuse extradition purely because the person sought is a national. Further, seven of the 49 treaties provide that nationals will not be extradited. If the Minister never considers his discretion under such provisions, there is no purpose in including them in extradition treaties. The applicant submits that, at a minimum, the Minister was required to give reasons for failing to exercise his Article V discretion not to extradite.

[13] We do not accept these submissions.

[14] In our view, it is at least implicit in Minister Cotler's 2004 surrender decision that he was aware of, but declined to exercise, his discretion under Article V to refuse to extradite the applicant because the applicant is a Canadian national. Although it may have been preferable had the current Minister provided a more specific response to this aspect of the applicant's February 19, 2008 further submissions, we conclude that it was open to the Minister to find that this further submission did not raise a new issue that required a response.

[15] Minister Cotler wrote a 27-page letter responding to the applicant's original submissions on surrender. On p. 1 of that letter he referred to Mr. Schreiber's dual citizenship. On p. 7, he referred in general terms to his discretion under the Treaty to refuse surrender. He said:

As a general rule, my discretion to refuse surrender is justifiable only on compelling grounds related to specific provisions set out in the Extradition Act, the Treaty between Canada and Germany Concerning Extradition or when surrender would be contrary to the rights guaranteed by the Canadian Charter of Rights and Freedoms. (Emphasis added)

[16] Although Minister Cotler does not refer specifically in his letter to Article V, viewed in the context of his reference to the applicant's citizenship and the detailed nature of his review of this matter, we consider it unrealistic to suggest that Minister Cotler was not aware of, or did not consider, his discretion under Article V.

[17] Further, in his letter, Minister Cotler addressed, in some detail, a submission by the applicant that interpreting the Treaty as permitting Canada to extradite Canadian citizens for fiscal offences when Germany would not extradite for fiscal offences at all violates the principle of reciprocity and would shock the conscience of Canadians. Although Minister Cotler said that Germany had confirmed that it was able and [page646] willing to extradite "a person" to Canada for fiscal offences, he addressed the applicant's reciprocity concerns on the merits. [See Note 2 below]

[18] Relying in part on Germany (Federal Republic) v. Rauca (1983), 1983 CanLII 1774 (ON CA), 41 O.R. (2d) 225, [1983] O.J. No. 2973 (C.A.), Minister Cotler said, "[r]eciprocity is not a precondition to ... extradition". He noted that "Canadian law allows Canada to extradite both nationals and non-nationals to countries with which there is no treaty". After emphasizing the important objective of extradition of bringing persons who are wanted for prosecution or sentence to justice, he concluded:

Therefore, in my view, whether or not Germany would ultimately extradite a person to Canada for fiscal offences does not affect whether it would be just to surrender Mr. Schreiber to Germany. It is in Canada's broader interest to ensure that persons who are alleged to have committed crimes outside our territory are not sheltered from the proper course of justice.

[19] It is apparent that Minister Cotler concluded that the important and compelling objectives of extradition trumped the reciprocity concerns raised by the applicant. Moreover, the applicant's reciprocity concerns did not prompt Minister Cotler to exercise his discretion not to extradite under Article V.

[20] In the circumstances, we see no error in Minister Cotler's statement in one of the concluding paragraphs of his 2004 surrender decision that "there are no other considerations that would justify ignoring Canada's obligations under the Treaty". Article I of the Treaty is an undertaking to extradite, "subject to the provisions and conditions prescribed in this treaty". Having declined to exercise his discretion not to surrender, the Minister made no error by referring to "Canada's obligations".

[21] Since the assumption that Germany would refuse to extradite any person to Canada for prosecution for fiscal offences did not lead Minister Cotler to exercise his discretion to decline to extradite a Canadian national because of reciprocity concerns, in our view, it was open to the current Minister to conclude that what might be viewed as the more narrow reciprocity concerns raised in the applicant's February 19, 2008 submissions do not raise a new issue.

[22] If extradition objectives outweigh a general absence of reciprocity such that Germany's refusal to extradite any person for fiscal offences did not mandate a refusal to extradite a Canadian national for such offences, those same extradition objectives would necessarily outweigh a more limited absence of [page647] reciprocity. In other words, Germany's more limited refusal to extradite its own citizens would not mandate a refusal to extradite Canadian nationals.

[23] In addition, we observe that Minister Cotler's conclusions about reciprocity issues appear to be consistent with existing jurisprudence. In R. v. Rauca, supra, this court noted that reciprocity in substance is provided through German laws providing for prosecution of extraterritorial crimes [at para. 60]:

Counsel for the respondents also pointed out that while the Constitution of the Federal Republic of Germany expressly prohibits the extradition of its nationals, its criminal law expressly provides for the prosecution of extraterritorial crimes committed by its nationals. Hitherto, the Criminal Code of Canada has not provided for the prosecution of extraterritorial crimes committed by nationals except in limited instances and consequently the extradition of nationals has been permitted for extraterritorial crimes committed by them (ss. 5(2) and 6). In the instant case, when considering "reciprocity", it can be said that there is an equivalence in substance if not in the formal equality of facilities.

[24] Further, in United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469, [1989] S.C.J. No. 56, La Forest J. outlined certain systemic reasons why common-law countries have not adopted the practice of refusing to extradite their nationals [at paras. 52-53]:

The foregoing considerations are relevant to the respondent El Zein's submission that there was a readily available substitute for extradition that would not infringe on the right of a citizen to remain in Canada. Canada, he maintained, could adopt the practice followed by some European countries of refusing extradition and prosecuting their own nationals for crimes wherever committed. In a recent article, J.G. Castel and Sharon A. Williams . . . recount the widespread criticism of this practice. "This attitude of lack of faith and actual distrust" they observe, "is not in keeping with the spirit behind extradition treaties." They further observe that prosecution by the requested state does not constitute an acceptable substitute for extradition . . .

As I noted earlier, extradition is now part of the fabric of our law. The countries where the system we are invited to adopt exists have a completely different criminal justice system, the inquisitorial system, which includes quite different rules and practices for obtaining and presenting evidence. To apply the concept in relation to those countries would require a substantial revamping of our system . . .

[25] Finally, in our view, the applicant has failed entirely to explain how subsection 3 of Article V would have any practical application in the circumstances of this case. In particular, he has not explained how Canada would have territorial jurisdiction to prosecute him in relation to any of the charges he is facing in Germany.

[26] Further, at his committal hearing, the applicant submitted that this proceeding does not meet even the double [page648] criminality standard in relation to the income tax evasion offences because of differing definitions of income in the two countries. He maintained that position, albeit unsuccessfully, in our court. Given the differing definitions, even if the applicant could be prosecuted for these offences under Canadian law, we fail to see how Canada would have any prospect of success comparable to that of Germany.

(ii) Bias

[27] The applicant also raises the issue of purported bias or conflict of interest. That argument is premised on the assertion that the Minister of Justice has a motive to have the applicant removed from Canada at all costs rather than permit him to remain in order to testify at the Mulroney-Schreiber public inquiry.

[28] The Minister's recent actions belie this argument as he has acceded to the applicant's request to stay in Canada for the purpose of his participation in the inquiry.

[29] The record fails to establish any other foundation for the applicant's arguments relating to bias or conflict of interest and, accordingly, we do not accept the bias/conflict of interest argument.

(iii) Failure to give reasons

[30] The applicant further contends that he was denied natural justice as the Minister's reasons failed to explain the basis upon which his further submissions were being rejected.

[31] Once again, we disagree. Although it may have been preferable had the current Minister provided a more specific response to the applicant's February 19, 2008 submissions concerning the Article V issue, these submissions can be viewed as simply a refinement of the applicant's previous submissions concerning reciprocity and therefore as not requiring a further response. Further, in our view, the record provides a complete answer to the applicant's further submissions concerning bias.

[32] In all of the circumstances, we conclude that the Minister's response to the applicant's February 19, 2008 submissions was adequate. See Lake v. Canada (Minister of Justice), [2008] S.C.J. No. 23, 2008 SCC 23, at para. 46.

IV. Disposition

[33] For these reasons, the application is dismissed

Application dismissed.

Notes

Note 1: The relevant portions of Article V provide:

Article V

Extradition of Nationals

(1) Neither of the Contracting Parties shall be bound to extradite its own nationals.

(3) If a request for extradition is refused only on the ground that the person claimed is a national of the requested state, that state shall, if asked to do so by the requesting state, take all possible measure in accordance to do so by the requesting state, take all possible measure in accordance with its own law to prosecute the person claimed. For this purpose, the files, documents and exhibits relating to the offence shall be transmitted to that state. All expenses incurred in connection with such prosecution shall be borne by the requested state. The requesting state shall be informed of the result of the prosecution.

Note 2: In oral argument, the applicant acknowledged taht Germany will now extradite non-nationals for fiscal offences.