COURT OF APPEAL FOR ONTARIO

CITATION: XY v. United States, 2015 ONCA 773

DATE: 20151112

DOCKET: C59731

Doherty, Pepall and Brown JJ.A.

IN THE MATTER OF an application for judicial review pursuant to s. 57 of the Extradition Act, S.C. 1999, c. 18

BETWEEN

XY

Applicant/Person Sought

and

The United States of America

Requesting State

and

The Minister of Justice of Canada and the Attorney General of Canada

Respondent

Daniel F. Moore, for the applicant

Nancy Dennison, for the respondent

Heard and released orally: November 5, 2015

On application for judicial review of the surrender order of the Minister of Justice, dated December 9, 2014.

ENDORSEMENT

[1] The applicant seeks judicial review of the Minister of Justice’s decision which reconsidered the original decision of the Minister to extradite XY to the U.S.A.

[2] A reasonableness standard applies to the surrender decision of the Minister.

[3] XY argues that the Minister’s decision violates his s. 7 Charter rights and he seeks a stay of proceedings on the basis that XY will be subjected to cruel and unusual punishment upon extradition. Alternatively, XY argues that the Minister’s decision was unreasonable on the basis that he applied an improper legal test, misapprehended the evidence and did not consider relevant factors.

[4] XY seeks an order pursuant to s. 57(6)(b) of the Extradition Act quashing the determination of the Minister or, in the alternative, an order referring the matter back to the Minister and, if surrender is to be ordered, directing the Minister to seek guarantees of acceptable placement in custody so that his life and security will be protected.

[5] We do not find the applicant’s submissions to be persuasive for the following reasons. The test for refusing extradition on s. 7 grounds was described recently by this court in France v. Diab as a strict one and available only in exceptional cases where extradition would shock the conscience of Canadians and be simply unacceptable: France v. Diab, 2014 ONCA 374, 120 O.R. (3d) 174, at para. 202, leave to appeal refused, 2014 CanLII 67421 (S.C.C.).

[6] Here, the Minister balanced the risks to the applicant’s personal safety against the protective measures available and came to the reasonable conclusion that the extradition of XY would not shock the conscience. In reaching that conclusion, the Minister took into account the opinion provided by XY’s U.S. counsel, although ultimately he did not accept much of that opinion. As well, the Minister was advised by U.S. authorities that XY would be protected and they would be responsive to his safety concerns. The U.S. authorities provided outlines of programmes available to any inmate who asserts his or her life is at risk from other inmates. The Minister balanced all that information. He concluded that those protections and representations by the U.S. authorities were sufficient to address the particular risks to XY’s personal safety and to respond to his concerns. In our view, it was reasonable for the Minister to reach that conclusion based upon the information before him.

[7] The applicant submits that the Minister significantly understated the risks to his personal safety. In his reconsideration decision, the Minister reviewed at some length the evidence concerning the risks faced by the applicant. In our view, it was open to the Minister to conclude, as he did, on the evidence before him, that the applicant did not face a level of risk beyond that faced by the vast majority of cooperating inmates.

[8] Moreover, we reject the applicant’s submission that potential placement by U.S. authorities in special housing units would amount to torture and cruel and unusual punishment. The information provided by the U.S. authorities indicated that inmates placed in special housing units for protective purposes routinely have a cellmate, work assignments, recreational opportunities, educational programming, and may place telephone calls and receive social and legal visits.

[9] For those reasons, we dismiss the application for judicial review.

[10] To ensure that nothing in this endorsement interferes with the directions contained in the sealing order of Rouleau J.A. dated July 2, 2015, we shall send counsel a copy of this endorsement before releasing it. If counsel have any concerns about the content of the endorsement, they should advise the court immediately of them. The order of Rouleau J.A. shall continue in force, subject to any subsequent variation by this court.

“Doherty J.A.”

“S.E. Pepall J.A.”

“David Brown J.A.”