Court of Appeal for Ontario

CITATION: Canada (Attorney General) v. He, 2013 ONCA 575

DATED: 20130923

DOCKET: C56017

Doherty, Tulloch and Lauwers JJ.A.

IN THE MATTER OF the Extradition Act, S.C. 1999, c. 18;

AND IN THE MATTER OF an Application by Japan, the Requesting State, for the extradition of Liang He;

AND IN THE MATTER OF an Appeal of the committal of Liang He for extradition;

BETWEEN

Attorney General of Canada

Respondent

and

Liang He

Appellant (Applicant)

Robin Parker, for the appellant (applicant)

Richard Kramer, for the respondent

Heard: September 23, 2013

On appeal from the committal order of Justice Clark of the Superior Court of Justice, dated September 10, 2012.

APPEAL BOOK ENDORSEMENT

[1] The appellant challenges the committal order on the basis that his committal for extradition would constitute an abuse of the Canadian court’s process because the Japanese authorities intend, in addition to prosecuting the offence in which the extradition is sought, to question the appellant qua witness in an unrelated matter. The desire to question the appellant clearly precipitated the extradition request, however, it is accepted that the Japanese authorities have a valid basis to pursue the charge and intend to pursue the charge on which extradition is sought.

[2] The existence of a “dual purpose”, assuming both are legitimate, cannot render the extradition proceeding an abuse of process.

[3] Insofar as the abuse allegation rests on claims relating to the potential mistreatment of the appellant while undergoing custodial interrogation, it cannot succeed. The extradition judge had no evidence before him on which any finding could be made about the manner in which the appellant would be treated. Absent that evidence, there was no basis upon which it could be said that the extradition proceeding was an abuse having regard to the potential for mistreatment of the appellant if surrendered.

[4] We note that the treatment of the appellant upon surrender was the subject matter of submissions before the Minister and subsequent inquiries by the Minister. He satisfied himself that the appellant would not be mistreated and sought certain undertakings from the Japanese authorities. There is no application for judicial review of the decision of the Minister.

[5] The appeal is dismissed. The committal order is affirmed.