The Attorney General of Canada on behalf of the Czech Republic et al. v. Zajicek [Indexed as: Czech Republic v. Zajicek]

108 O.R. (3d) 721

2012 ONCA 99

Court of Appeal for Ontario,

MacPherson, Juriansz and Epstein JJ.A.

February 14, 2012

• Vous trouverez la traduction française à la p. 740, post.

Charter of Rights and Freedoms -- Fundamental justice -- Abuse of process -- Extradition -- Foreign state seeking extradition for offences allegedly committed nine years before request -- Appellant alleging that he was tortured by Czech police and forced to sign blank pages for use as false confession -- Appellant seeking stay of proceedings on basis that foreign police violated his s. 7 Charter rights and extradition amounting to abuse of process -- Extradition judge refusing to consider torture allegations as sufficient evidence to commit without confession and holding Charter jurisdiction limited to violations affecting evidence relied upon for committal -- Judge stating Minister would consider torture claims and impact of delay in making determination whether to order surrender -- Appellant appealing from committal by extradition judge and seeking judicial review of Minister's surrender decision -- Appellant's appeal from order committing him for extradition allowed -- Extradition judge interpreting Charter jurisdiction too narrowly given subsequent Khadr decision -- Allegation of torture implicating Canadian extradition court's integrity -- Requesting state arguing committal should be upheld on basis that committal not substantial wrong or miscarriage of justice and need for judicial economy and expediency in extradition proceedings -- Appellant entitled to new committal hearing at which torture allegation would be addressed on merits as different procedural and substantive considerations applying in extradition judge's decision on committal and Minister's surrender decision -- Canadian Charter of Rights and Freedoms, s. 7.

Extradition -- Application of Charter and abuse of process at committal hearing -- Foreign state seeking extradition for offences allegedly occurring nine years before request -- Appellant alleging that he was tortured by Czech police and forced to sign blank pages for use as false confession -- Appellant seeking stay of proceedings on basis that foreign police violated his s. 7 Charter rights and extradition amounting to abuse of process -- Extradition judge refusing to consider torture allegations as sufficient evidence to commit without confession and holding Charter jurisdiction limited to violations affecting evidence relied upon for committal -- Judge stating Minister would consider torture claims and delay while determining whether to order surrender -- Appellant appealing from committal by extradition judge and seeking judicial review of Minister's surrender decision -- Appellant's appeal from order committing him for extradition allowed -- Extradition judge interpreting Charter jurisdiction too narrowly in light of subsequent Khadr decision -- Allegation of torture implicating Canadian extradition court's integrity [page722] -- Requesting state arguing committal should be upheld on basis that no substantial wrong or miscarriage of justice and need for judicial economy and expediency in extradition proceedings -- Appellant entitled to new committal hearing at which torture allegation would be addressed on merits as different procedural and substantive considerations applying in extradition judge's decision on committal and Minister's surrender decisions -- Canadian Charter of Rights and Freedoms, s. 7.

The Czech Republic sought the appellant's extradition to stand trial on charges of robbery and property damage alleged to have been committed nine years before the request was made, when the appellant was 19 years old. At the committal hearing, the appellant claimed that the Czech police tortured him over a two-day period and forced him to sign blank pages for use as false confessions. He sought a stay of proceedings, arguing that his rights under s. 7 of the Canadian Charter of Rights and Freedoms were breached by the torture and that his extradition would amount to an abuse of process. The extradition judge refused to consider the appellant's claim that his confession was obtained through torture. She found that there was enough evidence to order committal even without the confession, and that therefore the court's s. 7 Charter jurisdiction was not engaged as it was restricted to matters directly related to the fairness of the committal proceedings. She ruled that the allegations of torture and the delay in instituting extradition proceedings were both matters for the Minister of Justice at the surrender stage. The Minister had before him an expanded record in which both the requesting states and the appellant provided additional evidence. After reviewing that record, the Minister ordered the appellant's surrender. The appellant appealed the committal order and applied for judicial review of the surrender order.

Held, the appeal should be allowed.

Per MacPherson J.A. (Epstein J.A. concurring): The extradition judge did not have the benefit of the Court of Appeal's decision in United States of America v. Khadr. If Khadr had been in play, she would have approached the appellant's allegation of torture differently. The alleged mistreatment of the appellant implicated the Canadian extradition court's integrity. Because the alleged abuse involved the requesting state's investigation of the offences for which the appellant was sought, the abuse was prima facie a judicial matter to be dealt with by the extradition judge. The requesting state sought to uphold the committal arguing that notwithstanding the error, the proviso should be invoked on appeal as the Minister of Justice had already rejected the appellant's argument based on the expanded record. The effect of the extradition judge's error with respect to the extent of her Charter jurisdiction was that the appellant was deprived of the opportunity to have his Charter application decided on the merits. There are important substantive and procedural differences between the hearing before an extradition judge and the Minister's surrender decision, and the appellant is entitled to a new committal hearing.

Per Juriansz J.A. (dissenting): While the extradition judge's failure to permit the appellant to advance his application for a stay was an error, the appeal should nevertheless be dismissed. Khadr does not stand for the proposition that a stay of proceedings is appropriate in any case where officers of the requesting state have inflicted physical violence on the person being extradited. The appellant's allegations did not provide any basis for a stay of the extradition proceedings, and in any event, the Minister decided a stay was not warranted after considering the appellant's evidence and argument. There was no miscarriage of justice, and no useful purpose would be served by remitting the matter for a new committal hearing. [page723]

APPEAL from the committal order of Frank J. (2009), 2009 CanLII 92138 (ON SC), 100 O.R. (3d) 471, [2009] O.J. No. 5055 (S.C.J.); APPLICATION for judicial review of the surrender order of the Minister of Justice dated May 25, 2011.

Cases referred to

United States of America v. Khadr (2011), 106 O.R. (3d) 449, [2011] O.J. No. 2060, 2011 ONCA 358, 234 C.R.R. (2d) 31, 280 O.A.C. 210, 85 C.R. (6th) 143, 273 C.C.C. (3d) 55, 337 D.L.R. (4th) 638, affg [2010] O.J. No. 3301, 2010 ONSC 4338, 215 C.R.R. (2d) 287, 258 C.C.C. (3d) 231, 78 C.R. (6th) 1, 322 D.L.R. (4th) 483 [Leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 316], apld

Other cases referred to

Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500, [1987] S.C.J. No. 24, 39 D.L.R. (4th) 18, 76 N.R. 12, 20 O.A.C. 161, 33 C.C.C. (3d) 193, 58 C.R. (3d) 1, 28 C.R.R. 280, 2 W.C.B. (2d) 299; Kindler v. Canada (Minister of Justice), 1991 CanLII 78 (SCC), [1991] 2 S.C.R. 779, [1991] S.C.J. No. 63, 84 D.L.R. (4th) 438, 129 N.R. 81, J.E. 91-1495, 67 C.C.C. (3d) 1, 8 C.R. (4th) 1, 6 C.R.R. (2d) 193, 14 W.C.B. (2d) 30; McVey (Re); McVey v. United States of America, 1992 CanLII 48 (SCC), [1992] 3 S.C.R. 475, [1992] S.C.J. No. 95, 97 D.L.R. (4th) 193, 144 N.R. 81, [1993] 1 W.W.R. 289, J.E. 92-1762, 16 B.C.A.C. 241, 73 B.C.L.R. (2d) 145, 77 C.C.C. (3d) 1, 17 W.C.B. (2d) 585; R. v. Tran (2010), 103 O.R. (3d) 131, [2010] O.J. No. 2785, 2010 ONCA 471, 213 C.R.R. (2d) 145, 264 O.A.C. 125, 257 C.C.C. (3d) 18, 76 C.R. (6th) 307; United States of America v. Anderson (2007), 85 O.R. (3d) 380, [2007] O.J. No. 449, 2007 ONCA 84, 219 O.A.C. 369, 218 C.C.C. (3d) 225, 153 C.R.R. (2d) 20, 74 W.C.B. (2d) 353; United States of America v. Dynar (1997), 1997 CanLII 359 (SCC), 33 O.R. (3d) 478, [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, 147 D.L.R. (4th) 399, 213 N.R. 321, J.E. 97-1400, 101 O.A.C. 321, 115 C.C.C. (3d) 481, 8 C.R. (5th) 79, 44 C.R.R. (2d) 189, 35 W.C.B. (2d) 8; United States of America v. Ferras, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 2006 SCC 33, 268 D.L.R. (4th) 1, 351 N.R. 1, J.E. 2006-1461, 209 C.C.C. (3d) 353, 39 C.R. (6th) 207, 143 C.R.R. (2d) 140, 69 W.C.B. (2d) 711, EYB 2006-107828

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 7

Extradition Act, S.C. 1999, c. 18, ss. 33(3)(a), 53, (b)(ii)

Treaties and Conventions

Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221 at 223, Eur T.S. 5 Vienna Convention on Consular Relations, 24 April 1963, 596 U.N.T.S 261

Julianna A. Greenspan, for appellant/applicant. Jeffrey G. Johnston, for respondent.

MACPHERSON J.A. (EPSTEIN J.A. concurring)

A. Introduction

[1] The appellant, [See Note 1 below] Bretislav Zajicek, appeals from the order of Frank J. of the Superior Court of Justice, sitting as an extradition [page724] judge, committing the appellant into custody for extradition. Mr. Zajicek also applies for judicial review of the Minister of Justice's decision to surrender him to the Czech Republic to stand trial for the Czech offences of robbery and property damage.

[2] At the committal hearing, the appellant claimed that the Czech police tortured him during interrogation over a two-day period and forced him to sign blank pages for use as false confessions. In her reasons, the extradition judge declined to determine whether the appellant had been tortured, reasoning that the allegations should be addressed by the Minister of Justice ("Minister") at the surrender stage of the extradition process. The appellant contends that this was an error and requires a new committal hearing.

[3] With respect to the Minister's surrender decision, the appellant submits that the Minister erred by concluding that despite the appellant's affidavit detailing his torture, his surrender would not be unjust and oppressive. The appellant also submits that the Minister erred by concluding that the delay by the Czech Republic in seeking extradition is not unjust and oppressive, and by ordering surrender despite missing evidence and witnesses.

[4] For the reasons that follow, I agree with the appellant's first submission. The extradition judge erred by not addressing the appellant's claim that he was tortured by Czech police. I would order a new committal hearing.

B. Facts

(1) The parties and events

[5] By diplomatic note dated November 8, 2007, the Czech Republic requested the extradition of the appellant for prosecution for the offences of robbery and damage to another person's property, contrary to the Czech Criminal Code. The alleged offences occurred between November 2 and 18, 1996, when the appellant, who was 19 years old at the time, and his accomplices are said to have broken into two electronics shops and a garage and to have stolen electronic equipment and a motor vehicle. In addition, they were alleged to have stolen gold chains from a jewellery store. The Czech Republic also alleged that the appellant and his accomplices caused damage to the electronics shops. The value of the stolen items and the property damage was approximately CDN$23,607 and CDN$7,565 respectively.

[6] The committal evidence is summarized in the record of the case ("ROC"). A judicial authority in the Czech Republic has certified that the evidence is available for trial and was gathered [page725] according to the law of the Czech Republic, as required by s. 33(3)(a) of the Extradition Act, S.C. 1999, c. 18. The evidence implicating the appellant in the offences includes an alleged confession that he is said to have provided to Czech police in the presence of his counsel. The ROC also refers to statements provided to Czech investigators by three of the appellant's alleged accomplices, Petr Kouril, Petr Gasta and Marcel Petrik, who are said to have participated in the thefts with the appellant.

[7] The appellant immigrated to Canada on September 13, 1997 and was granted refugee status on October 7, 1997. He obtained permanent resident status on November 17, 1999. Seven years later, on April 13, 2006, the Czech Republic issued an arrest warrant for the appellant. After the Canadian Government received the diplomatic note requesting the appellant's extradition, the appellant was arrested on November 19, 2008.

(2) The committal decision

[8] On November 20, 2009, an extradition hearing took place before Frank J. of the Superior Court of Justice. The appellant conceded that he was the person sought by the Czech Republic and that the conduct alleged against him was conduct that would amount to the Canadian offences set out in the authority to proceed. However, he advanced three arguments against committal: (1) his right to life, liberty and security of person pursuant to s. 7 of the Canadian Charter of Rights and Freedoms was breached by the torture he suffered at the hands of the Czech police; (2) the delay by the Czech Republic in seeking extradition warranted a stay of the extradition proceedings; and (3) there was insufficient evidence in the ROC to warrant committal as his confession was manifestly unreliable and the statements of other persons failed to meet the minimum standard for evidence.

[9] The extradition judge rejected each of these submissions. She determined that even without the evidence of the appellant's alleged confession, there was sufficient evidence to warrant a committal. She declined to consider the appellant's claim that his confession was obtained through torture by the Czech police, concluding [at para. 18] that "it is at the Ministerial stage that the allegations of torture are to be considered". She reasoned that the nine-year delay in laying charges against the appellant in the Czech Republic was also a matter for the Minister to consider at the next stage of the extradition procedure. Finally, she determined that the evidence certified in the ROC, especially the statements of two alleged accomplices, warranted a committal order. [page726]

(3) The surrender decision

[10] In opposition to his surrender, the appellant made extensive submissions to the Minister on March 26, 2010; February 22, 2011; April 5, 2011; and April 18, 2011. Several of these submissions referred to the various reports about the case sent to the Minister by the International Assistance Group of the Department of Justice. These reports had been disclosed to the appellant so that he would have an opportunity to respond.

[11] The Minister did not accept the appellant's submissions. In his decision dated May 25, 2011, he rejected the appellant's arguments about torture, delay, the reliability and availability of the committal evidence, and the appellant's Convention refugee status.

C. Issues

[12] Although the appellant raises eight issues in his factum, the combination of an overlap of some issues and the way the appellant presented his arguments at the appeal hearing leads me to frame the issues in this fashion: (1) Did the extradition judge err in not considering the appellant's claim that he was tortured during the Czech Republic's police investigation? (2) Did the Minister err by concluding that it would not be unjust and oppressive to surrender the appellant in light of the evidence that he was tortured by Czech police? (3) Did the Minister err by concluding that the Czech Republic's delay in seeking extradition did not render extradition unjust and oppressive? (4) Did the Minister err by concluding that, despite missing evidence and witnesses, the surrender of the appellant would not be unjust and oppressive?

D. Analysis

(1) Extradition judge -- torture issue

[13] The appellant's central attack on the committal decision is that the extradition judge erred in not considering whether the appellant was tortured.

[14] At his committal hearing, the appellant sought to introduce as evidence a nine-page affidavit he had sworn shortly before the hearing commenced. In this affidavit, the appellant alleged that he had been subject to very serious physical and [page727] psychological mistreatment by several Czech Republic police officers in two different police stations over a two-day period in the late autumn of 1996. Particulars of the alleged police misconduct included allegations that the appellant had been handcuffed to a hot radiator that caused his skin to burn, he was punched and kicked repeatedly, he was beaten with a baton, his head was dunked in a fish tank, he was aggressively questioned about various thefts and he was forced to sign blank pieces of paper that were turned into a false confession.

[15] Based on this evidence, the appellant sought a stay of proceedings on the grounds that the actions of the Czech Republic police violated his s. 7 Charter rights such that extradition would be an abuse of process.

[16] The extradition judge found that there was enough evidence to order committal even without the appellant's confession. Accordingly, she reasoned that any abuse associated with the confession did not engage the court's s. 7 Charter jurisdiction and was a matter for the Minister. The extradition judge interpreted her Charter jurisdiction as being circumscribed to issues directly related to the fairness of the committal hearing. In her view, the fairness of the hearing was not affected by allegations concerning the manner in which the appellant's confession was obtained where this evidence was not relied upon in support of his committal. For the same reason, the extradition judge deemed it unnecessary to determine the admissibility of the appellant's affidavit describing the alleged torture.

[17] The extradition judge did not have the benefit of this court's decision in United States of America v. Khadr (2011), 106 O.R. (3d) 449, [2011] O.J. No. 2060, 2011 ONCA 358, leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 316, when she engaged in the above reasoning. I agree with the appellant that if Khadr had been in play, the extradition judge would have approached the appellant's allegation of torture in a different way.

[18] In Khadr, the extradition judge found that Khadr was physically abused during the first three days of his 14-month detention by intelligence officials in Pakistan. On appeal, Sharpe J.A. said, at para. 4:

There is no appeal against the extradition judge's finding that the human rights violations were shocking and unjustifiable. Because of the requesting state's misconduct, proceeding with the extradition committal hearing threatened the court's integrity. Responding to that threat was a judicial matter to be dealt with by the extradition judge, not an executive decision reserved to the Minister. [page728]

[19] Here, the appellant alleges that he was detained and mistreated for two days and signed blank pieces of paper presented to him by Czech police officers, which may form the basis of his alleged confession. Although the extradition judge did not rely on the confession in making her committal decision, the alleged mistreatment of the appellant implicates the Canadian extradition court's integrity. Because the alleged abuse involves the requesting state's investigation of the offences for which the appellant is sought, the abuse is prima facie "a judicial matter to be dealt with by the extradition judge".

[20] The respondent acknowledges that the extradition judge in this case interpreted her Charter jurisdiction in a narrow way that this court has since rejected in Khadr. However, the respondent contends that the proviso in s. 53 of the Extradition Act should be applied to uphold the appellant's committal in this case. Section 53 provides, in relevant parts:

53. On the hearing of an appeal against an order of committal of a person, the court may (a) allow the appeal, in respect of any offence in respect of which the person has been committed, if it is of the opinion . . . . . (ii) that the order of committal should be set aside on the ground of a wrong decision on a question of law, or . . . . . (b) dismiss the appeal . . . . . (ii) even though the court of appeal is of the opinion that on the ground referred to in subparagraph (a)(ii) the appeal may be decided in favour of the appellant, if it is of the opinion that no substantial wrong or miscarriage of justice has occurred and the order of committal should be upheld.

[21] In making this submission, the respondent relies extensively on the record that was before the Minister when he addressed the appellant's torture claim in the context of the surrender decision. When the Minister became aware of the appellant's claim, he, quite properly, requested a response from the Czech Republic. The Czech Republic denied that the appellant provided his confessions under torture. The Czech Republic provided information in support of its denial, including a statement that the appellant attended for three interviews with the police in 1996 and 1997 and that on those occasions the interviews took place in the presence of one or both of his lawyers. Thus, [page729] the Czech Republic maintains that the torture the appellant claims is simply not possible.

[22] There is no doubt that there are weaknesses in the appellant's claim of torture. On the appellant's side, the weakness is that his claim is a bald (albeit detailed), uncorroborated claim. On the respondent's side, there is now a good deal of material in the record rebutting the claim.

[23] However, in my view the bottom line at this juncture can be summarized in three propositions.

[24] First, an allegation of serious abuse by the requesting state directly implicates the Canadian extradition court's integrity; this is the simple message of Khadr.

[25] Second, the extradition judge, who did not have the benefit of Khadr, did not address this issue; she certainly would have done so if Khadr had been decided before the extradition hearing. The effect of this error is that the appellant was deprived of the opportunity to have his Charter application decided on the merits, with his evidence and submissions considered and, in the event that a stay was not granted, to be provided with the extradition judge's reasons that might in turn ground an appeal.

[26] Third, while there is now a substantial record concerning the alleged abuse, most of this record was not available at the committal hearing. As noted above, the factual record before this court has expanded since the initial committal hearing. At the surrender stage, the Minister, having sought a response from the Czech Republic with respect to the allegation of torture, was provided with additional information. Counsel for the appellant responded to this new information with arguments intending to cast doubt on the veracity and reliability of the information, based on alleged internal inconsistencies and the delay accompanying the release of information by the Czech authorities. The expanded record available to date is known. However, what other information might come to light is not known.

[27] Against this backdrop, the fair result is to allow the appellant to have a new committal hearing where his claim of torture will be addressed on the merits in the context of the procedural rules and legal tests that govern committal proceedings. In the end, as Sharpe J.A. said in Khadr, at para. 4, responding to a potential threat to the court's integrity arising in an extradition context is "a judicial matter to be dealt with by the extradition judge, not an executive decision reserved to the Minister". The respondent would have this court slide the record before the Minister and the contents of his surrender decision over into a proviso analysis under s. 53(b) (ii) of the Extradition Act. However, doing so in this case would not respect the important [page730] procedural and substantive differences between the two stages of the extradition process. The decision before the Minister is not the same as the decision before the committal judge; it would not be fair to deprive the appellant of the opportunity to argue for a stay at the committal stage.

[28] I appreciate that judicial economy and expediency are important considerations in the context of extradition proceedings. However, in my view, in the circumstances of this case, where eight years passed between the time of the alleged offences and the appellant's being sought by the requesting state, those considerations should not be allowed to overtake his right to a committal hearing based on the applicable law and a full record.

[29] I do not agree with the suggestion that a new committal hearing is unnecessary because an extradition judge could not possibly order a stay in a case like this one, in which uncorroborated allegations of torture have been controverted by the requesting state. I would not speculate, at this stage, about whether a stay would be appropriate on the record before a new committal hearing.

[30] In light of this conclusion, it is unnecessary to engage in the judicial review of the Minister's decision.

E. Disposition

[31] I would allow the appeal from the committal decision and order a new hearing.

JURIANSZ J.A. (dissenting)

Introduction

[32] I have read the reasons of MacPherson J.A., and I cannot agree with them or the conclusion he reaches. While the extradition judge's failure to permit the appellant to advance his application for a stay was an error, I would, nevertheless, dismiss the appeal of the committal order. I am driven to a different conclusion than MacPherson J.A. because I take a narrower view of the implications of this court's decision in United States of America v. Khadr (2011), 106 O.R. (3d) 449, [2011] O.J. No. 2060, 2011 ONCA 358 for subsequent cases. Khadr does not stand for the proposition that a stay of proceedings is appropriate in any case where officers of the requesting state have inflicted physical violence on the person being extradited. In this case, the appellant's allegations did not provide any basis for a stay of the extradition proceedings, and, in any event, the Minister of Justice decided a [page731] stay was not warranted after considering the appellant's evidence and arguments. There has been no miscarriage of justice and no useful purpose would be served by remitting the matter for a new committal hearing.

[33] I also conclude that the Minister's decision was entirely reasonable and I would dismiss the judicial review application as well.

Facts

[34] MacPherson J.A. has set out the necessary facts. Nonetheless, I would add a few additional details.

[35] The alleged accomplices of the appellant specifically indicated in their statements that the appellant participated in the crimes with which he has been charged. The extradition judge said, at para. 26, "The statement of one of the accomplices in each of the charges is sufficient to establish a prima facie case of theft and mischief against Mr. Zajicek as charged. On the basis of the accomplices' statements, a committal is warranted."

[36] The information provided by the Czech Republic not only stated that the appellant was interviewed in the police station in the presence of one or both of his lawyers, but also that he signed a confession in the presence of his lawyer who signed the confession as well.

[37] The appellant alleged he was forced to sign at the bottom of a blank sheet of paper that was turned into his confession. The Czech Republic's response to the Minister states that the appellant's signature is not at the bottom of the page, but exactly where the text ends.

[38] Canada's recognition of the appellant as a Convention refugee was entirely unrelated to his allegations of torture by the Czech police. His claim of refugee status was based on his marriage to a woman "of the Roma race". In his personal information form, the appellant did not make any claim that he had been tortured by the Czech police. Moreover, he did not disclose to the Immigration and Refugee Board or to Canadian immigration officials that he was under criminal investigation in the Czech Republic.

[39] Before proceeding with the analysis, I comment on the terminology the appellant has chosen. The municipal police suspected Mr. Zajicek of committing local robberies and took him to a local police station where he alleges he was beaten while interrogated and forced to sign a confession. He did not allege that the beating caused him any injury or that he required medical attention of any kind. The appellant describes his treatment by the Czech police as "torture". The description is accurate. The [page732] infliction of physical violence to extract a confession to a crime falls clearly within the meaning of torture. "Torture", though, is a general term, and its broad meaning includes the infliction of excruciating pain and even mutilation for some other purpose such as extraction of state intelligence. The alleged violence inflicted on the appellant by the police investigating local crimes is often described as "police brutality". Police brutality is a completely unacceptable form of torture. That said, the term "police brutality", in my view, more specifically fits the appellant's particular allegations of torture.

Section 53(b)(ii) of the Extradition Act

[40] In light of the Khadr decision, the extradition judge erred by refusing to consider the appellant's application for a stay of proceedings because his alleged mistreatment did not bear on the fairness of the extradition process. Despite that error, there are two different bases on which I would dismiss the appeal against the committal order. First, I would apply s. 53(b)(ii) of the Extradition Act, S.C. 1999, c. 18, that allows this court to dismiss an appeal if no substantial wrong or miscarriage of justice has occurred. Second, I would conclude that applying the law post-Khadr to the record that was before the committal judge would not justify a stay of the extradition proceedings against the appellant. Not remitting the matter to the extradition judge is more in keeping with judicial economy and an expeditious extradition process.

[41] As stated, s. 53(b)(ii) of the Extradition Act allows this court to dismiss an appeal of a committal order "if it is of the opinion that no substantial wrong or miscarriage of justice has occurred and the order of committal should be upheld".

[42] Despite the extradition judge's failure to consider whether continuing with the proceeding would amount to an abuse of process in the face of his allegations, the record on the judicial review of the Minister's decision enables this court to conclude that the appellant's allegations of torture are not borne out. Therefore, I conclude that there has been no miscarriage of justice.

[43] In his submissions to the Minister, the appellant renewed his request for a stay on the basis of his alleged mistreatment by the Czech police. Before the Minister, he filed the same affidavit that he had filed before the extradition judge. Thus, the issue of whether the appellant's confession was obtained by torture, and whether that amounts to an abuse of process justifying a stay of the extradition, was before the Minister and is now before this court on the application for judicial review. [page733]

[44] The Minister sought a response from the requesting state about the appellant's allegations. The Czech Republic responded that the appellant's confession was not obtained by torture; that there were three separate confessions given on three specific dates that on each of those occasions he had the benefit of counsel; that the appellant and his counsel both signed the confession given on November 29, 1996 that had been referenced in the record of the case; and that the appellant's signature on the interview records did not appear at the bottom of the sheet, but precisely where the text of the record ends.

[45] The Minister provided the appellant with the opportunity to respond to the information provided by the Czech Republic. The appellant did not provide any additional evidence in support of his allegations, nor demonstrate that the evidence relied on by the Czech Republic was manifestly unreliable. In this court, he did not seek to tender any fresh evidence and does not suggest that he would have any additional evidence to file were the matter remitted. Instead, he demands production of the original documents referred to in the Czech Republic's response so he can attempt to undermine it. In doing so, he misconceives the nature of the extradition process, which allows Canada's extradition partners to provide certified summaries of evidence.

[46] The Minister concluded that a stay was not warranted. His conclusion is the only reasonable one in light of all the evidence. The record before this court on the judicial review shows that the appellant has failed to establish his allegations of mistreatment by the Czech police.

[47] As the appellant has failed to establish his allegations of mistreatment, no useful purpose would be achieved by remitting this matter to the extradition judge. The only result of remitting the matter would be the consumption of court resources and further delay in the extradition process. No miscarriage of justice has occurred. I would apply s. 53(b)(ii) of the Extradition Act and dismiss the appeal against the committal order.

Applying the Current Law to the Record before the Extradition Judge

[48] The law is continuously evolving. A practice of unnecessarily rehearing cases because the law has changed after they were decided does not properly value judicial resources. An appellate court should first consider whether it is able to apply the new law to the record that was before the court of first instance. This court has used such an approach in the extradition context in appeals heard after the Supreme Court's decision in United States of America v. Ferras, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 2006 SCC 33, [page734] which changed the law by expanding the scope of the court's assessment of the evidence (see, for example, United States of America v. Anderson (2007), 85 O.R. (3d) 380, [2007] O.J. No. 449, 2007 ONCA 84).

[49] Having the appellate court apply the new law is particularly suitable in extradition cases. As the Supreme Court has often emphasized, extradition proceedings are intended to be expeditious. In United States of America v. Dynar (1997), 1997 CanLII 359 (SCC), 33 O.R. (3d) 478, [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, Cory and Iacobucci JJ. stated, at para. 122, that while an extradition judge has an important role to fulfill, "it cannot be forgotten that the hearing is intended to be an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canada's international obligations". Cory and Iacobucci JJ. repeated the observation of La Forest J. in McVey (Re); McVey v. United States of America, 1992 CanLII 48 (SCC), [1992] 3 S.C.R. 475, [1992] S.C.J. No. 95, at p. 551 S.C.R., that "extradition proceedings are not trials. They are intended to be expeditious procedures to determine whether a trial should be held."

[50] Remitting the matter for a new committal hearing with the spectre of an appeal of a further committal order, a further surrender decision by the Minister and a further judicial review of the Minister's decision, would result in a measure of delay entirely inconsistent with the expeditious process envisaged by the Extradition Act.

[51] Therefore, I will apply the current law as set out in the Khadr decision to the record that was before the extradition judge at the committal hearing.

[52] The appellant's allegations stood uncontradicted before the extradition judge. I appreciate the argument of counsel for the Attorney General that a court must be circumspect in accepting bald and uncorroborated allegations of torture made by the person sought. As he points out, the extradition partner's certification of the record of the case implies a denial of the allegations as it indicates the evidence was gathered according to law and is available for trial. Gathering evidence by torture is against the law of the Czech Republic. I find it unnecessary to deal with this argument. Instead, for the sake of argument, I will treat the appellant's allegations as established. Taking his allegations as established and applying the law in light of Khadr, I conclude that this is not one of those clearest of cases where a stay is warranted.

[53] This is a case in which local police investigating local crimes physically brutalized the appellant to extract a confession. All police brutality is unacceptable and should not be [page735] tolerated. The fact that the accused was subjected to police brutality, however, does not mean that a stay of the extradition proceedings is warranted. Unfortunately, allegations of police brutality similar to the appellant's are made in Canada all too often. Generally in Canada, however, such police conduct does not result in a stay of proceedings. Generally, some other remedy, such as the exclusion of evidence, is deemed adequate and the criminal prosecution is allowed to proceed on other evidence. A stay may be imposed in an exceptional case involving conduct that is so egregious that proceeding would undermine the integrity of the court.

[54] R. v. Tran (2010), 103 O.R. (3d) 131, [2010] O.J. No. 2785, 2010 ONCA 471 is one of the few Canadian cases where a stay was imposed in a case involving police brutality. It illustrates the exceptional nature of the circumstances that would support a stay. Epstein J.A., writing for the court, began her analysis by recognizing, at para. 90, that "[f]ew cases appear in Canadian jurisprudence where a stay has been imposed as a remedy specifically for police brutality". A stay of proceedings is an exceptional remedy to be employed as a last resort, only after canvassing other available remedies. Generally, the misconduct of police brutality is not carried forward into the trial. As the judge can guard against its having an effect on the trial, the integrity of the court is not implicated.

[55] This court's decision in Tran, as I read it, did not change the generally restrictive approach to granting stays, but turned on its exceptional circumstances. Tran had surrendered himself to the police and received a severe and entirely gratuitous beating that resulted in permanent injury. Tran claimed he was beaten for invoking his Canadian Charter of Rights and Freedoms right to remain silent. He was denied prompt medical attention. The police involved attempted to cover up their actions by destroying evidence, lying to fellow officers and perjuring themselves before the court.

[56] Epstein J.A. stressed that the misconduct was carried forward to the accused's trial. After the trial judge found in the voir dire that Tran had been severely beaten by the police, the Crown had one of the officers involved sit at the Crown's counsel table. Then, after the trial judge made an order excluding the officer from the counsel table, the Crown allowed him to have continuing involvement with witnesses. As a consequence, Epstein J.A. stated, at para. 97, that the state misconduct continued into the trial and implicated trial fairness. The Crown had exhibited a "cavalier attitude toward the seriousness of the police misconduct and abuse to which Tran had been subjected" [page736] (at para. 98). She concluded, at para. 99, that "[t]he Crown's conduct was evocative of an alignment with the police, notwithstanding the abuse".

[57] The case before us does not have any features similar to the exceptional circumstances of Tran. I am satisfied that the appellant's allegations, even if regarded as true, would not result in a stay of proceedings in Canada. In Canada, the confession would be excluded, and the prosecution would proceed on other evidence. This is beside the point, however. The important point is that it is the function of the trial judge to find whether the confession was provided voluntarily and to fashion the appropriate remedy if it was not. In this case, the trial court in the Czech Republic has that function.

[58] In carrying out that function, it must be assumed that the trial court in the Czech Republic will fairly and appropriately deal with the appellant's allegations. Canada chooses its extradition partners with deliberation. As McLachlin J. observed in Kindler v. Canada (Minister of Justice), 1991 CanLII 78 (SCC), [1991] 2 S.C.R. 779, [1991] S.C.J. No. 63, at p. 845 S.C.R., "We sign treaties only with states which can assure us that their systems of criminal justice are fair and offer sufficient procedural protections to accused persons." In Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500, [1987] S.C.J. No. 24, La Forest J. said [at p. 523 S.C.R.]:

[T]he courts must begin with the notion that the executive must first have determined that the general system for the administration of justice in the foreign country sufficiently corresponds to our concepts of justice to warrant entering into the treaty in the first place, and must have recognized that it too has a duty to ensure that its actions comply with constitutional standards.

[59] La Forest J. added that while blind deference to executive judgment cannot be expected, "this is an area where the executive is likely to be far better informed than the courts, and where the courts must be extremely circumspect so as to avoid interfering unduly in decisions that involve the good faith and honour of this country in its relations with other states" (at p. 523 S.C.R.).

[60] What's more, as the Czech Republic is a member of the European Union, the appellant is afforded all of the protections of the Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221 at 223, Eur T.S. 5 (European Convention on Human Rights). These protections include the right to liberty and security, the right to a fair trial, the right to life and a prohibition against torture. The appellant is able to raise his allegations of mistreatment before the Czech courts and can resort to the European Court [page737] of Human Rights, the decisions of which are binding on the Czech Republic.

[61] I do not agree with my colleague that the allegations in this case could support the application of the principles stated in Khadr. On my reading, when one takes full measure of the circumstances in that case, the physical mistreatment of Khadr played a minor role. The extradition judge in United States of America v. Khadr, [2010] O.J. No. 3301, 2010 ONSC 4338, 322 D.L.R. (4th) 483 found, at para. 101, "I am not satisfied, on a balance of probabilities, that the mistreatment of Khadr reached the level of severity alleged. I do not find evidence amounting to torture." In this court, Sharpe J.A. described Khadr's physical mistreatment this way [at para. 8]:

The extradition judge did not accept Khadr's evidence that he had been subjected to prolonged torture while in [Pakistan's intelligence agency's] custody. However, the extradition judge did find that Khadr was mistreated and physically abused during the first three days of his detention, and that he was thereafter held in a hostile environment.

[62] Khadr was physically mistreated and that physical mistreatment, however one describes it, may have coerced him into co-operating with Pakistani and American intelligence officers. The stay imposed, though, did not rest solely on that fact.

[63] Khadr was a Canadian citizen. He was abducted by the national intelligence service of Pakistan ("ISI") upon being paid a bounty of $500,000 by the United States. He was held in secret detention for 14 months. Pakistan and the United States breached their international obligations by collaborating to deny the Canadian consul access to Khadr for three months. The purpose of the denial was to ensure Canadian consul access did not interfere with the American intelligence interrogations. Khadr was physically mistreated during the first three days of his confinement. Khadr was held without charge and was never brought before the courts. His detention was both arbitrary and illegal according to the laws of Pakistan. Throughout his ordeal, he was denied legal counsel. When Pakistan was ready to allow his return to Canada, the United States pressured Pakistan into detaining him for another six months. The extradition judge found that the United States caused the delay because it was dissatisfied with the RCMP's refusal to charge him with criminal offenses before his release. The extradition judge added that "[t]his delay was contrary to Canadian officials' expectations and wishes that Khadr be repatriated. It was a source of frustration: Canadian officials had fully expected Khadr to be released and had made preparations for his return to Canada" (at para. 124). [page738]

[64] To sum up, the extradition judge found, at para. 111, that the United States was the "driving force" behind Khadr's abduction and 14-month detention in Pakistan, the denial of consular access by Canada and the prolonging of his illegal detention for six months after Pakistan was prepared to allow his return to Canada. The United States then sought to benefit from its misconduct by seeking Khadr's extradition on the basis of evidence derived through its misconduct.

[65] The case before us is a world apart. The police mistreatment of which the appellant complains took place several years before he entered Canada, when he had no connection with Canada and when Canada bore no responsibility to ensure his fair treatment. I do not suggest that the appellant's lack of Canadian citizenship disqualifies him from bringing an abuse of process application. Clearly, an extradition judge has authority to grant a stay of proceedings to a non-citizen whose treatment by an extradition partner was so egregious that extradition would shock the Canadian conscience and be unjustifiable. Needless to say, the appellant is protected by the Charter in the extradition proceedings.

[66] That said, however, Khadr's Canadian citizenship was a lynchpin for the circumstances that made his case shocking to the Canadian conscience. Throughout Khadr's ordeal, his rights at international law to Canada's protection were denied. The extradition judge analyzed the actions of Pakistan and the United States in the context of the Vienna Convention on Consular Relations, 24 April 1963, 596 U.N.T.S 261 (entered into force 19 March 1967). He observed that under the Vienna Convention, a contracting state has a duty to inform a detainee of his right to contact consular officials and to facilitate that right without delay and described this as a "fundamental right". He found, at para. 121, that "Canada did its best to obtain consular access" and "pressed hard for consular access". The three-month delay in permitting Khadr consular access, "prompted by the Pakistani and American collaborative decision to refuse consular access until full intelligence debriefings were completed", was an important factor in concluding a stay was warranted (at para. 113).

[67] Another important factor was the delay in allowing a Canadian national to return to Canada. The extradition judge stressed that "[t]he United States, contrary to Canada's wishes, pressured the ISI to delay Khadr's repatriation because of its dissatisfaction with Khadr being released without charge, even though there was no admissible evidence upon which to base charges at that time" (at para. 150). [page739]

[68] As can be seen, a significant part of the circumstances in Khadr involved the denial of rights he had as a Canadian citizen. Extraditing Khadr on the basis of information obtained while he was illegally detained without consular access would have condoned the requesting state's disregard of not only Khadr's rights, but Canada's rights at international law. These elements are entirely lacking in the case of Mr. Zajicek. His case provides no basis to deviate from the comity that Canada's extradition partners are due.

[69] One final distinction. In upholding the stay in Khadr, Sharpe J.A. repeatedly observed that a stay would not necessarily mean that Khadr would "walk free", as Canada could prosecute him for crimes of terrorism committed outside Canada. A stay in this case would necessarily result in the appellant not being prosecuted for the robberies he is alleged to have committed.

[70] In my view, extraditing the appellant, notwithstanding the conduct of the police in the Czech Republic, could not be unjustifiable because the same conduct by Canadian police would not result in a stay but in the exclusion of his confession at trial. The Canadian conscience would indeed require that the appellant be provided with the appropriate remedy for his alleged mistreatment. Providing an appropriate remedy is the function of the trial court in the Czech Republic. Comity with Canada's extradition partners requires that a Canadian extradition court be satisfied it would do so fairly in accordance with the fundamental justice.

[71] In closing, I conclude that a stay of proceedings is not warranted in this case, even taking the appellant's allegations to be established. This conclusion disposes of the appeal.

The Minister's Surrender Decision

[72] The foregoing conclusion also disposes of the judicial review of the Minister's surrender decision. In my discussion of s. 53(b)(ii) of the Extradition Act, I concluded that the Minister's decision to surrender the appellant was reasonable on all of the information before him.

[73] The other issues the appellant raises can be dealt with summarily. The appellant's argument that the information provided by the Czech Republic should be regarded as unreliable has no basis. The appellant has no right to the actual evidence summarized in the case. As I have already mentioned, Canada's extradition partners do not have to provide original documents and evidence to support a request for extradition. The Minister acted reasonably in relying on the presumptive reliability and [page740] availability of the evidence summarized and described in Czech Republic's correspondence.

[74] Finally, the Minister's conclusion that any delay in requesting the appellant's extradition does not amount to an abuse of process is reasonable. The appellant does not suggest that the delay has an impact on the fairness of the extradition process. The delay's impact on the criminal trial is a matter the appellant can raise before the Czech Republic's court or the European Court of Human Rights.

Conclusion

[75] This court's decision in Khadr has little import for cases such as this. After Khadr, an extradition judge cannot refuse to entertain an application by the person sought for a stay for reasons that do not impact on the fairness of the extradition process itself. However, because of the exceptional circumstances required by Khadr, such applications should be brought only in extraordinary cases. Applications brought in cases similar to this one should be disposed by the extradition judge in a summary fashion to avoid needless delay in the extradition process.

[76] For the reasons above, I would dismiss both the appeal against the committal order and the judicial review of the Minister's surrender decision.

Appeal allowed.

Notes

Note 1: I will use the word "appellant" throughout these reasons to describe Mr. Zajicek, although he is both an appellant, in relation to the committal order, and an applicant, in relation to the surrender decision.