Court of Appeal for Ontario

CITATION: Ernest v. France, 2015 ONCA 907

DATE: 20151222

DOCKET: C60507

Weiler, Pardu and Benotto 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

Cleus Ernest

Applicant

and

Minister of Justice Canada on behalf of the Republic of France

Respondent

Christine Mainville, for the applicant

Heather J. Graham, for the respondent

Heard: December 10, 2015

On application for judicial review of the surrender order of the Minister of Justice, dated April 30, 2015.

ENDORSEMENT

[1] The applicant submits that the decision of the Minister of Justice (the “Minister”) to surrender him for extradition to France must be quashed. France requested extradition of the applicant for “attempted voluntary murder,” and provided a Record of the Case summarizing evidence of the applicant shooting a police officer during an attempted arrest of four men suspected of drug trafficking. The Authority to Proceed (“ATP”) issued by the Minister stated that the Canadian criminal offence corresponding to the alleged conduct was aggravated assault contrary to s. 268 of the Criminal Code, R.S.C. 1985, c. C-46. The applicant consented to his committal on that offence. The Minister, after considering submissions from the applicant, ordered his surrender on the offence of attempted murder.

[2] The applicant advances a number of related arguments:

• The Minister did not have the authority to order surrender for attempted murder after having limited the ATP to aggravated assault.

• Ordering surrender for attempted murder in these circumstances amounted to an abuse of process.

• The Minister erred in refusing his request for disclosure in relation to the alleged abuse of process.

• Surrender for attempted murder would violate principles of fundamental justice.

[3] Here the task on judicial review is to assess whether the Minister’s surrender decision was unreasonable. As pointed out in Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 34, review of the Minister’s decision is assessed on that basis, even where the subject alleges that their Charter rights would be infringed by extradition.

[4] The applicant relies on Canada (Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170, at para. 32, which indicates:

An ATP is akin to an information or indictment in a domestic prosecution in that the corresponding Canadian offence or offences listed in an ATP provide the focus of the determination to be made at the judicial stage. Accordingly, care must be taken to ensure that an ATP accurately identifies the Canadian offence that most closely resembles the alleged conduct underlying the foreign offence. This will necessarily require the Minister, in drafting the ATP, to undertake some limited interpretation of the domestic law.

[5] The applicant also points to the requirements of s. 15(3) of the Extradition Act:

The [ATP] must contain

(a) the name or description of the person whose extradition is sought;

(b) the name of the extradition partner; and

(c) the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person or the conduct in respect of which the person was convicted…

[6] The description of the alleged offence provided by the victim describes a physical struggle during which the applicant is alleged to have shot the officer:

En ce qui concerne l’homme qui m’a tiré dessus, je l’ai vu de manière fugace. Je l’ai ceinturé. Il m’a tiré dessus puis j’ai roulé avec lui au sol. Il en a profité pour se défaire de mon étreinte.

[7] There are many offences in the Canadian Criminal Code that might correspond to the conduct described, including aggravated assault. The applicant consented to committal on aggravated assault. This supports the conclusion that it was reasonable for the Minister to list aggravated assault as a Canadian crime that resembled the alleged conduct giving rise to the extradition process.

[8] This case is not like the hypothetical posed by Sharpe J.A. in dissent in United States of America v. Barbu, 2010 ONCA 891, 265 C.C.C. (3d) 244, which the applicant relies upon. At para. 73, Sharpe J.A. asked whether the Minister could issue an Authority to Proceed citing a relatively minor offence such as common assault, but then issue a surrender order for murder. In this case, there is no basis to conclude that there was any improper reason for selecting aggravated assault in the ATP, but surrendering on attempted murder. The Minister informed the applicant that, even though the ATP cited aggravated assault, the Minister would likely seek to surrender him on the charge of attempted murder. The applicant has not identified any particular unfairness caused by the manner in which the extradition process unfolded.

[9] The applicant’s arguments are foreclosed by Fischbacher and Barbu. As explained in Fischbacher, at paras. 35, the role of the extradition committal judge is to determine whether the conduct alleged by the foreign state would amount to a criminal offence in Canadian law; if so, the domestic component of double criminality is satisfied and the person must be committed for extradition.

[10] The role of the Minister is different. As noted in Fischbacher, at para. 30, “[the] Minister must satisfy himself that the alleged conduct described in the extradition request is criminal in the foreign jurisdiction”.

[11] In Fischbacher, at para. 52, the court stated “it is not for the Canadian authorities, judicial or executive, to evaluate a foreign state’s decision to prosecute the person sought for a given offence, nor to assess the sufficiency of the evidence adduced at the committal hearing against the elements of the foreign offence.” The court also noted at, para. 41, that:

Nothing in s. 58(b) requires that the Minister match or “align” the surrender offence with that listed in the ATP or the committal order, nor with the evidence adduced at the hearing. In fact, quite the contrary: s. 58(b) provides the Minister with flexibility in crafting an order of surrender, and clearly contemplates that the wording of the surrender order may differ from that of the ATP and the order of committal. [Citation omitted.]

[12] Accordingly, there is no air of reality to the abuse of process claim and, therefore, the Minister did not err in refusing the disclosure request.

[13] Moreover, the evidence outlined in the Record of the Case could give rise to an inference that the shooter intended to kill the victim. Apart from the issues described above, the applicant does not impugn as unreasonable any aspect of the Minister’s decision to surrender for attempted murder. Accordingly the application to quash the Minister’s surrender order is dismissed.

“K.M. Weiler J.A.”

“G. Pardu J.A.”

“M.L. Benotto J.A.”