The Attorney General of Canada on behalf of the United States of America et al. v. Pakulski

[Indexed as: United States of America v. Pakulski]

Ontario Reports

Court of Appeal for Ontario,

Simmons, Tulloch and Huscroft JJ.A.

July 21, 2015

127 O.R. (3d) 351 | 2015 ONCA 539

Case Summary

Criminal law — Extradition — Surrender — Minister ordering applicant's surrender to stand trial on drug charges in United States — Applicant giving birth — Court referring surrender order back to minister for reconsideration in light of applicant's changed circumstances — Minister rejecting applicant's arguments that surrender order would violate ss. 6 and 7 of Charter and would be unjust or oppressive under s. 44(1)(a) of Extradition Act — Minister maintaining surrender order — Minister's decision not unreasonable — Canadian Charter of Rights and Freedoms, ss. 6, 7 — Extradition Act, S.C. 1999, c. 18, s. 44(1)(a).

The applicant was committed for extradition to the United States to stand trial on a serious drug charge, and the minister ordered her surrender. After the applicant gave birth, the Court of Appeal referred the surrender order back to the minister for reconsideration in light of the applicant's changed circumstances. The minister rejected the applicant's arguments that surrender would violate her rights and the rights of her child under ss. 6(1) and 7 of the Canadian Charter of Rights and Freedoms and would be unjust or oppressive under s. 44(1)(a) of the Charter. The minister maintained the surrender order. The applicant applied for judicial review of that decision.

Held, the application should be dismissed.

In reaching his conclusion under s. 7 of the Charter and s. 44(1)(a) of the Act, the minister did not fail to consider the applicant's role as the sole caregiver for her child. There was evidence that the applicant was well supported by her mother and several siblings, and that surrender would not leave her child without the support and care of a family member. The minister was aware of the likelihood that, if prosecuted and convicted in Canada, the applicant would qualify for the Mother-Child Program, which would allow her child to live with her if she [page352] were incarcerated in the federal system, and that there was no similar program in the United States. There was no guarantee that the applicant would be accepted into the program in Canada. The minister noted that the s. 6(1) rights of the child were not engaged as the child would not be removed from Canada. The minister's decision was not unreasonable.

Cases referred to

BH & Anor v. Lord Advocate & Anor (Scotland), [2012] UKSC 24; Canada (Attorney General) (United States of America) v. M. (M.), [2012] Q.J. No. 5896, 2012 QCCA 1142, EYB 2012-208135, 2012EXP-2507, J.E. 2012-1322 (C.A.) [Leave to appeal to S.C.C. granted [2012] S.C.C.A. No. 252]; M. (M.) v. Canada (Minister of Justice) (United States of America), [2014] Q.J. No. 2910, 2014 QCCA 681, 2014EXP-1268, J.E. 2014-706, EYB 2014-235532 [Leave to appeal to S.C.C. granted [2012] S.C.C.A. No. 252]; United States of America v. Jamieson, 1996 224 (SCC), [1996] 1 S.C.R. 465, [1996] S.C.J. No. 24, 197 N.R. 1, 104 C.C.C. (3d) 575, 30 W.C.B. (2d) 201; United States of America v. Ross, 1996 226 (SCC), [1996] 1 S.C.R. 469, [1996] S.C.J. No. 26, 132 D.L.R. (4th) 383, 197 N.R. 32, 75 B.C.A.C. 239, 104 C.C.C. (3d) 446, 30 W.C.B. (2d) 205; United States of America v. Whitley, 1996 225 (SCC), [1996] 1 S.C.R. 467, [1996] S.C.J. No. 25, 132 D.L.R. (4th) 575, 197 N.R. 169, 104 C.C.C. (3d) 447, 30 W.C.B. (2d) 206

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 1, 6(1), 7

Extradition Act, S.C. 1999, c. 18, s. 44(1)(a)

Treaties and conventions referred to

Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, 213 U.N.T.S. 221, Eur. T.S. 5, art. 8

Convention on the Rights of the Child, Can. T.S. 1992 No. 3

APPLICATION for judicial review of the reconsideration decision of the Minister of Justice dated January 27, 2015 maintaining the surrender order dated June 13, 2013.

Joanna Pakulski, in person.

Daniel Sheppard, duty counsel for applicant.

Heather J. Graham, for respondents.

[1] BY THE COURT: -- The applicant seeks judicial review of the reconsideration decision of the Minister of Justice dated January 27, 2015. In that decision, the minister concluded that an order dated June 13, 2013 surrendering the applicant for extradition to the United States should be maintained.

[2] If surrendered, the applicant will face a charge in New York of engaging in a conspiracy to distribute and possess with intent to distribute 100 kg or more of marijuana. It is alleged that between 2003 and 2007, she participated in a cross-border conspiracy with others to traffic hundreds of kilograms of marijuana from Canada into the United States and that her role was to collect the cash proceeds from drug sales and transport them [page353] back into Canada. On March 15, 2008, Canadian border authorities located US$59,540 concealed in the panelling of her car.

[3] The applicant was committed for extradition on July 31, 2012. On January 29, 2014, this court dismissed her appeal from the committal order and referred her application for judicial review of the June 13, 2013 surrender order back to the minister for reconsideration. This court made the referral for reconsideration in light of a change in the appellant's personal circumstances: she gave birth to a child on March 18, 2013.

[4] In his reconsideration decision, the minister rejected the applicant's arguments that a surrender order would violate the s. 7 Canadian Charter of Rights and Freedoms rights of her and her child and be unjust or oppressive under s. 44(1) (a) of the Extradition Act, S.C. 1999, c. 18. He also rejected her argument that, particularly in light of her role as the sole caregiver to a young child, a proper Cotroni analysis makes clear that surrender would violate the s. 6(1) Charter rights of both the applicant and her child and would not be saved under s. 1 of the Charter.

[5] On her application for judicial review to this court, the applicant contends that, having regard to the interests of her child, the minister's decision was unreasonable in three respects.

[6] First, she says that in reaching his conclusion under s. 7 of the Charter and s. 44(1)(a) of the Extradition Act, the minister failed to adequately consider her role as the sole caregiver to her young child and the significant impact her surrender would therefore have on her child -- as demonstrated by an expert assessment she had obtained. She contends that the minister's decision rested on generalizations and failed to adequately consider the case-specific information that was presented in this case. Further, she says the minister made a palpable and overriding error in concluding that the applicant's surrender "would not leave [the child] without the support and care of a family member".

[7] We do not accept these submissions. In the assessment report the applicant obtained, the assessor noted that the applicant rents a one-bedroom apartment from her mother in a Toronto home and that the applicant had stated she was "well supported by her mother . . . and several siblings". Having regard to these statements, it was open to the minister to conclude that the applicant's surrender would not leave her child without the support and care of a family member.

[8] Further, the minister's reconsideration decision demonstrates that he was fully aware of the applicant's role as the sole [page354] caregiver of her child and the assessment report she had obtained. Nonetheless, after reviewing the relevant principles, the minister concluded that the applicant's personal circumstances and the potential impact of her surrender on her child do not warrant refusing to honour Canada's obligations to the United States and that her surrender would not be "shocking to the Canadian conscience . . . or unjust or oppressive".

[9] In our view, the minister took account of the relevant considerations, and the applicant has failed to demonstrate that his conclusion was unreasonable.

[10] Second, the applicant argues that the minister's decision is unreasonable because he failed to properly consider the impact of the differing sentencing regimes that exist in Canada and the United States and, in particular, the likelihood that the applicant would qualify for the Mother-Child Program if prosecuted, convicted and sentenced to imprisonment in Canada. This program would allow the applicant's child to live with her if she were incarcerated in the federal system. The minister also failed to properly consider other differences in the manner in which any sentence might be served (e.g., conditional sentence) that could impact the child's security of the person.

[11] We do not accept these submissions. The minister specifically adverted to the applicant's submissions concerning the differences in the sentencing regimes in Canada and the United States and to the potential impact on her son of her incarceration in the United States as compared to her incarceration in Canada if she were prosecuted and convicted in Canada. In doing so, he referred explicitly to the existence of the Mother-Child Program in Canada, to the absence of a similar program in the United States, and to the evidence filed by the applicant concerning the possibility of a conditional sentence.

[12] We see nothing unreasonable in the minister's consideration of these issues or in his decision. In particular, we observe that the fact that the Mother-Child Program exists in Canada does not mean that it would be available to the applicant in the place where she was incarcerated if she were prosecuted and incarcerated in Canada. Nor would the availability of the program at a particular institution mean that the applicant and her child would qualify for it. In any event, as the minister noted, the Supreme Court of Canada has repeatedly upheld surrender decisions where the person sought for extradition was potentially facing a lengthy mandatory jail sentence upon conviction in the requesting state: United States of America v. Jamieson, 1996 224 (SCC), [1996] 1 S.C.R. 465, [1996] S.C.J. No. 24; United States of America v. Whitley, 1996 225 (SCC), [1996] 1 S.C.R. 467, [1996] S.C.J. No. 25; [page355] United States of America v. Ross, 1996 226 (SCC), [1996] 1 S.C.R. 469, [1996] S.C.J. No. 26.

[13] Finally, the applicant argued that the minister's decision is unreasonable because he rejected submissions that his decision should be guided by U.K. Supreme Court and European Court of Human Rights decisions concerning art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, 213 U.N.T.S. 221, Eur. T.S. 5 ("European Convention on Human Rights") as art. 8 does not correspond to s. 6(1) or s. 7 of the Charter. The applicant claims that this conclusion is inconsistent with the position the minister took before the Supreme Court of Canada in M. (M.) v. Minister of Justice Canada on behalf of the United States of America, Court File No. 35838, appeal heard and reserved on March 17, 2015,[^1] that art. 8 jurisprudence is informative of issues that arise at the surrender phase of extradition proceedings.

[14] We do not accept this argument. The minister's statements in this case concerning art. 8 were in response to the applicant's submissions concerning s. 6(1) of the Charter and, in particular, her reliance on BH & Anor v. Lord Advocate & Anor (Scotland), [2012] UKSC 24. In that case, the U.K. Supreme Court considered the best interests of six children of two parents sought for extradition on drug charges as an aspect of the art. 8 right to respect for private and family life, and held that only in exceptional circumstances would private or family life outweigh the legitimate goal of extradition.

[15] The minister noted that the s. 6(1) rights of the child are not engaged in this case as the child is not the person sought for extradition and that extradition of the appellant would not result in removal of her child from Canada. The minister went on to note that art. 8 does not correspond to s. 6(1) or s. 7 of the Charter and the U.K. decision has "no direct application" to the applicant's case.

[16] In his factum in M. (M.), the minister makes the same observation, noting that the Charter does not have any provision identical to art. 8. Nonetheless, he adds that judicial consideration of the best interests of the child in the art. 8 context "can be informative", and goes on to explain why his decision in that case is consistent with principles of international law as [page356] contained in the European Convention on Human Rights and the Convention on the Rights of the Child, Can. T.S. 1992 No. 3.

[17] We fail to see any material inconsistency between the minister's position as articulated in this case and his position as set out in his factum in M. (M.).

[18] The application for judicial review is therefore dismissed.

Application dismissed.

Notes

[^1]: On appeal from Canada (Attorney General) (United States of America) v. M. (M.), [2012] Q.J. No. 5896, 2012 QCCA 1142, leave to appeal to S.C.C. granted [2014] S.C.C.A. No. 252 and M. (M.) v. Canada (Minister of Justice) (United States of America), [2014] Q.J. No. 2910, 2014 QCCA 681, leave to appeal to S.C.C. granted [2014] S.C.C.A. No. 252.

End of Document