COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Pakulski, 2014 ONCA 81

DATE: 20140129

DOCKET: C55827 and C57319

Feldman, Pepall and Tulloch JJ.A.

IN THE MATTER OF an appeal of a committal order pursuant to [s. 49](https://www.canlii.org/en/ca/laws/stat/sc-1999-c-18/latest/sc-1999-c-18.html) of the [Extradition Act](https://www.canlii.org/en/ca/laws/stat/sc-1999-c-18/latest/sc-1999-c-18.html), S.C. 1999, c. 18

BETWEEN

The Attorney General of Canada on behalf of the

United States of America and Minister of Justice

Respondents

and

Joanna Pakulski

Applicant/Appellant

Joanna Pakulski, in person

Jill Copeland, Duty Counsel for the appellant

Heather J. Graham, for the respondent

Heard: January 13, 2014

On appeal from the committal order of Justice S.G. Himel of the Superior Court of Justice, dated July 31, 2012 and judicial review of the order of surrender of the Minister of Justice.

ENDORSEMENT

[1] The appellant appeals an order committing her into custody for the purposes of extradition to the United States to face drug trafficking charges. She also seeks judicial review of the order of surrender made by the Minister of Justice.

[2] Dealing first with the appeal of the committal order, the appellant submits that the committal judge erred in two ways. The first was by excluding evidence the appellant wished to lead to attack the credibility of the co-operating witnesses to show that they had motive to lie. The second was that the committal judge erred by relying on a previous version of the appellant’s factum.

[3] In our view, there is no merit to either of these grounds of appeal.

[4] The committal judge gave detailed and careful reasons for her decision and we agree with them. The proposed evidence was properly excluded for the reasons advanced by her. As the committal judge noted, credibility issues should be resolved by the trier of fact. Moreover, quite apart from the statements of the two co-operating witnesses, the US $59,540 found in the appellant’s car supported the absence of any manifest unreliability in the evidence contained in the record of the case. We are also not persuaded that the wrong factum was relied upon by the committal judge.

[5] In conclusion, the committal judge accurately characterized and considered the nature and context of the evidence and applied the correct legal principles. We see no error. The committal appeal is dismissed.

[6] Turning to the request for judicial review of the Minister’s decision, the applicant’s funding application was dismissed and she has been self-represented. There is no dispute that neither the applicant nor the respondent made any mention in their communications with the Minister that the applicant had recently given birth to a child.

[7] The Crown submitted that, pursuant to s. 43(2) of the Extradition Act, s. C. 1999, c. 18, at any time it was open to the applicant to ask the Minister to accept further submissions and to reconsider his decision in light of the fact that she is a single mother who recently gave birth to a child. However, she had failed to do so.

[8] The appellant relies on a previous decision by the Minister, The Attorney General of Canada on behalf of the United States of America and Minister of Justice v. Tania Siyam, December 12, 2006, where the Minister, in reconsidering a surrender decision, observed that a newborn is an important factor in determining whether surrender would be unjust or oppressive.

[9] Under the exceptional circumstances of this case, where the applicant was unrepresented when she made her submissions to the Minister, she had a newborn which is a relevant fact, and the Crown was aware that that fact was not included in the original submission, we are of the view that the motion for judicial review should be adjourned to give the applicant the opportunity to ask the Minister to accept further submissions and to advise the Minister of her circumstances. There is judicial precedent for such an approach. See United States v. Johnstone, 2013 BCCA 2 at para. 61.

Result

[10] The appeal from the committal order is dismissed.

[11] The application for judicial review is adjourned. The applicant shall have 30 days to make further submissions to the Minister. Once a response has been received, the applicant, Crown counsel and Ms. Copeland shall seek a date before this panel for the matter to be returned.

[12] The applicant was granted bail pending both appeals. Following the applicant’s surrender to receive these reasons, the court will approve bail on the same terms pending the judicial review.

“K. Feldman J.A.”

“S.E. Pepall J.A.”

“M. Tulloch J.A.”