COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Whyte, 2016 ONCA 624

DATE: 20160812

DOCKET: C60027 & C61639

Cronk, Juriansz & Watt JJ.A.

IN THE MATTER OF an appeal of a committal order pursuant to s. 49 of the Extradition Act, S.C. 1999, c. 18

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

BETWEEN

C60027/C61639

The Attorney General of Canada on Behalf of the United States of America and the Minister of Justice of Canada

Respondents

and

William R. Whyte

Appellant

Brian H. Greenspan and Robin K. McKechney, for the appellant

Jeffrey G. Johnston and Roy Lee, for the respondents

Heard: May 6, 2016

On appeal from the committal order of Justice T. Ducharme, dated December 19, 2014 and on application for judicial review of the surrender order of the Minister of Justice, dated August 21, 2015.

Watt J.A.:

[1] In the beginning, a contract. A Canadian company. A foreign government. An agreement to supply armoured vehicles.

[2] Soon, things began to go sideways. Money needed to complete the contract. Funds advanced. Late delivery. Substandard equipment.

[3] In the end, a cancelled contract. Funds advanced, not returned. A prosecution begun. A lawsuit launched. Extradition sought. Committal ordered. Surrender ordered.

[4] An appeal of the committal. A review of the surrender decision. An abuse of process alleged. A stay of proceedings sought. At the end of argument, this court declined to interfere. These reasons explain why.

THE BACKGROUND FACTS

[5] The arguments advanced here focus on the impact on the committal and surrender decisions of the dismissal of a civil claim based on the same allegations contained in the criminal prosecution on which extradition is sought. A brief overview of the contract, the circumstances that gave rise to its cancellation and the civil and criminal proceedings in the United States is sufficient to provide context for this court's decision.

The Contracts

[6] Armet Armoured Vehicles Inc. ("Armet") is a Canadian company that designs, manufactures and sells armoured vehicles. William Whyte was the chief operating officer, sole shareholder and sole director of Armet. He directed all aspects of Armet's business, including the bidding process for contracts and vehicle design. He made production decisions.

[7] The Joint Contracting Command-Iraq ("JCCI") is an agency of the United States Department of Defense. Part of JCCI's responsibility was to use United States' funds to procure essential equipment for the United States' reconstruction efforts in Iraq. This included providing training to Iraqi military and police so that those local forces could eventually assume responsibility for the mission of ensuring safety. In 2006, as part of that safety function, the United States military needed armoured gun trucks, to be operated by United States and Iraqi personnel to protect convoys of VIPs, including senior members of the Iraqi government.

[8] Armet entered into two contracts with JCCI to provide a total of 32 armoured vehicles for use in Iraq. The contracts contained terms that specified standards to ensure the safety of the occupants of these vehicles.

The Progress Payment

[9] Armet failed to deliver vehicles on time. The company sought and obtained a progress payment of $825,000.00 to assist it in completing its obligations under the contracts in a timely way.

[10] By the end of 2007, Armet had delivered only six armoured vehicles, far fewer than what the contracts required.

The Cancellation of the Contract

[11] In March 2008 the United States government cancelled the Armet contracts and demanded repayment of the funds advanced as a progress payment. Armet made an offer to settle in March 2008 and a second, three years later, in April 2011. The United States did not respond to either offer.

The Alleged Deficiencies

[12] The JCCI had several complaints about Armet's failure to abide by the terms of the contracts. Armet failed to make timely delivery of the number of vehicles required under the contracts. The vehicles that were delivered contained inadequate protective equipment. Plywood and Styrofoam were substituted as "blast protective materials". One sheet of armoured steel was on the roof and floor, instead of two. The gear shift space was protected only by a rubber ring. The vehicles were not equipped with run-flat tires. Instead, Armet had substituted cheaper tires that would not run when flat. Whyte knew about these defects and, in some cases at least, had authorized them. Yet he made no disclosure to JCCI.

The Diversion of Funds

[13] JCCI alleges that Armet, through Whyte, diverted the funds received as a progress payment under the contracts to other purposes. For example, to pay expenses unrelated to the contracts with JCCI for the manufacture of armoured vehicles for the agency, including, Whyte's personal expenses.

The Nigerian Contract

[14] In September, 2007, about six months prior to the cancellation of the contracts, Armet, through Whyte, is alleged to have redirected at least six vehicles, intended for delivery under the contract with JCCI, to the Nigerian government. The vehicles were repainted to the specifications of the Nigerian government and sold to it at a price greater than that payable under the JCCI contracts.

The United States Indictment

[15] William Whyte has been indicted in the United States District Court for the Western District of Virginia on three counts of major fraud against the United States; six counts of wire fraud; and three counts of making false claims against the United States.

The Relator Civil Action

[16] On October 16, 2012 Frank Skinner, the former president of Armet, commenced a relator action on behalf of the United States government in the United States District Court for the Western District of Virginia. The action was commenced under the qui tam provisions of a United States federal statute, the False Claims Act, 31 U.S. Code §§ 3729 et seq.

The Extradition Proceedings

[17] On August 15, 2013, the Minister of Justice authorized the Attorney General of Canada to proceed in the Superior Court of Justice to seek an order for William Whyte's committal for surrender to the United States for prosecution. The corresponding Canadian offence for which committal was sought is fraud.

[18] The evidentiary foundation for the United States' request is contained in the Record of the Case ("ROC"), dated July 16, 2013 and a Supplementary Record of the Case ("SROC"), dated October 21, 2014.

The Committal

[19] On December 19, 2014, a judge of the Superior Court of Justice ordered William Whyte committed for surrender for prosecution in the United States.

The Surrender Order

[20] On August 21, 2015, the Minister of Justice ordered William Whyte's surrender to the United States for prosecution on the outstanding indictment against him in the United States District Court for the Western District of Virginia.

THE APPEAL FROM COMMITTAL

[21] William Whyte appeals the order of committal. To advance his case, he seeks leave to introduce as fresh evidence a record submitted to the Minister in connection with the outcome of the relator action that was concluded after committal was ordered.

[22] A brief description of the committal proceedings and the nature of the evidence proposed for admission is sufficient to understand and determine the argument advanced on appeal.

The Committal Hearing

[23] At the committal hearing, the extradition partner contended that the ROC disclosed that the appellant obtained an advance payment on the contracts on the representation that the money was required to assist in the timely production of the armoured vehicles under the contracts with JCCI. Instead, the appellant directed the funds to his personal use and sold the vehicles to be supplied under the JCCI contracts to the Nigerian government at a higher price. To the extent that any armoured vehicles were delivered to JCCI under the contracts, they failed to comply with the terms of those contracts. The armouring was inadequate. The blast protection substandard. The tires did not run flat. The appellant knew of and authorized these deficiencies. This course of conduct amounted to fraud under Canadian law and warranted committal.

[24] The appellant contended that he was open, honest and transparent in all his dealings with JCCI. He practised no deceit, uttered no falsehoods and engaged in nothing fraudulent in his conduct or discourse. The vehicles provided adequate protection. The contracts did not require flat-run tires. What occurred here is a civil contract dispute that does not rise to the level of criminal fraud under Canadian law.

The Committal Decision

[25] After summarizing the allegations contained in the ROC and SROC, the positions of counsel and the role of a judge presiding at an extradition hearing, the extradition hearing judge framed the issue for decision as "whether there is some evidence to support the finding that the contract was not complied with and that this failure constitutes fraud". He noted that any assessment of the credibility of the proposed witnesses and the reliability of their testimony was for the trial court in the United States, not for him as the extradition hearing judge.

[26] After delineating the essential elements of fraud under Canadian law, the extradition hearing judge examined the evidence contained in the ROC and SROC to determine whether it disclosed evidence of the actus reus of fraud. He concluded that:

i. diversion of the armoured vehicles to the Nigerian government;

ii. diversion of the advance payment to personal expenditures; and

iii. deficiencies in the armouring, ballistics protection and failure to supply run-flat tires

amounted to evidence of deceit, falsehood or other fraudulent means that resulted in deprivation and an actual loss or placing the pecuniary interests of the United States government at risk.

[27] The extradition hearing judge was also satisfied that there was evidence capable of establishing the mens rea of fraud under Canadian law. The appellant was fully aware of the deficiencies of the vehicles and armouring, ballistics protection and the absence of run-flat tires – yet made no effort to advise JCCI or to take steps to correct them. In a similar way, the appellant's knowledge of the diversions supported an inference of deliberate deceit on his part.

The Proposed Fresh Evidence

[28] The appellant seeks to have admitted as fresh evidence, on the appeal from the order of committal, documents associated with the relator civil claim under the False Claims Act. These documents include several records from the United States District Court for the Western District of Virginia:

i. a federal False Claims Act complaint, dated October 16, 2012;

ii. a First Amended False Claims Act complaint, dated September 9, 2014;

iii. the trial court's instructions to the jury on June 3, 2015;

iv. a Special Interrogatories and Verdict Form completed by the jury for persons; and

v. a Judgment Order signed by the presiding judge in the Virginia action on July 6, 2015.

[29] The court records indicate that the relator claim under the False Claims Act was dismissed and judgment given on behalf of the defendants, Armet and the appellant.

The Arguments on Appeal

[30] Essential to the appeal from committal is the successful introduction of the proposed fresh evidence. This material grounds an argument that to order committal to permit prosecution of criminal charges that have already failed as a civil claim amounts to an abuse of process and a breach of the principles of fundamental justice. The remedy sought is a stay of proceedings.

[31] The appellant says that it is a fundamental principle of Canadian criminal law that a person accused of crime should not be required to answer twice for the same allegations. Issue estoppel prohibits such relitigation. Its prerequisites are satisfied here. The civil complaint and criminal prosecution involved the same question and the same parties. The jury decision on the civil complaint is a final decision. The prerequisites of issue estoppel have been met.

[32] The appellant contends that an extradition hearing judge has authority to stay proceedings under s. 25 of the Extradition Act, S.C. 1999, c. 18 for Charter infringements connected with the extradition process. To permit an order of committal to require the appellant to undergo a criminal trial involving the same allegations that the extradition partner cannot establish on a lesser standard of proof amounts to an abuse of process and an infringement of s. 7 of the Charter. The only appropriate remedy is a stay of the extradition proceedings.

[33] According to the appellant, this court should receive as fresh evidence the court records relating to the civil claim. The evidence could not have been obtained, indeed was not available, at the time of the extradition hearing. As a court record, what is proposed for admission is credible, well-worthy of belief. It is relevant to the issues ripe for decision at the extradition hearing and, if admitted, could reasonably be expected to have affected the result when taken with the other evidence adduced at the hearing.

[34] The respondent begins with a reminder that, aside from the submission underwritten by the proposed fresh evidence, the appellant has advanced no claim of error in the committal decision. The respondent rejects any submission that the evidence proposed for admission should be received. But even if the fresh evidence were admitted, the committal order should be sustained.

[35] The respondent says that the proposed fresh evidence fails to satisfy at least two of the requirements established by R. v. Palmer, [1980] 1 S.C.R. 759. The evidence is not relevant. A claim of issue estoppel is a claim advanced in defence at trial. In extradition proceedings, that means a trial in the foreign jurisdiction. Issue estoppel has nothing to do with the statutorily mandated, highly circumscribed function of a judge presiding at an extradition hearing. Since the proposed evidence is irrelevant to the matters in issue at the hearing, it follows that the evidence could not reasonably be expected to have affected the result of that hearing. This equally requires its rejection under Palmer.

[36] The respondent acknowledges the authority of the extradition hearing judge to consider claims of abuse of process and Charter infringement at the extradition hearing. But there must be some nexus between the abuse or Charter infringement and the committal hearing. There is none here. Merely characterizing the claim as an abuse of process or constitutional infringement does not make it any less a defence – issue estoppel – for the foreign court, not an extradition hearing judge, to evaluate and determine.

[37] The respondent also points out that to permit advancement of the argument put forward here risks intruding upon the authority of the Minister in connection with Charter issues. Each participant in the extradition process has a clearly defined and scrupulously enforced authority. To accede to the appellant's submissions would compromise well-settled principles about the extradition process.

The Governing Principles

[38] The principles that control this court's decision on this appeal are those that define the authority of an extradition hearing judge to consider substantive defences and allegations of abuse of process, as well as those that govern the reception of fresh evidence on appeal.

The Authority of the Extradition Hearing Judge

[39] Extradition hearings are not trials. Nor are they to become trials. Trials are held in the foreign country according to its laws for an alleged crime said to have been committed there: Canada v. Schmidt, [1987] 1 S.C.R. 500, at p. 515; United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77, at para. 46; M.M. v. United States of America, 2015 SCC 62, at para. 38. Extradition hearings are intended to be expeditious procedures to determine whether a trial should be held in a foreign jurisdiction: United States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 122; McVey (Re), [1992] 3 S.C.R. 475, at p. 551; M. (M.), at para. 38.

[40] Sections 29(1)(a) and (3) of the Extradition Act define the role of the extradition hearing judge. That role is to determine two issues:

i. whether there is evidence admissible under the Act of conduct that had it occurred in Canada, would justify committal for trial here on the offence set out in the authority to proceed; and

ii. that the person before the court is the person sought by the extradition partner.

Satisfaction of these conditions mandates committal, failure to do so, discharge:

M. (M.), at para. 22. The committal phase of the extradition process serves an important, albeit circumscribed and limited screening function: M. (M.), at para. 36; Ferras, at para. 50.

[41] Section 29 of the Extradition Act delineates the role the extradition hearing judge is to perform in determining whether the evidence available to the prosecuting authority in the requesting state meets the domestic component of double criminality. The section directly links that role to the test for committal for trial in domestic proceedings: M. (M.), at para. 52; Canada (Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170, at para. 35.

[42] The tests for which s. 29 provides do not permit the extradition hearing judge to consider aspects of the alleged criminal conduct on which an accused bears an evidential burden: M.(M.), at para. 52; Fischbacher, at para. 52; Schmidt, at p. 515. This means that defences and other issues on which an accused bears an evidential burden occupy no place and exert no influence on the committal decision of the extradition hearing judge: M. (M.), at paras. 53, 65-66.

[43] In domestic prosecutions, res judicata and issue estoppel are raised at trial, not at the preliminary inquiry. In extradition proceedings, they are not issues for the extradition hearing judge, rather for the trial court in the foreign jurisdiction to unravel: United States of America v. Andrews (1991), 65 C.C.C. (3d) 345 (Man. C.A.), at pp. 351-352. They are also relevant for the Minister to consider in deciding whether to order surrender: United States of America v. K. (J.H.), (2002), 165 C.C.C. (3d) 449 (Ont. C.A.), at para. 24, leave to appeal refused, [2002] S.C.C.A. No. 501.

[44] The authority of an extradition hearing judge to consider Charter issues is not inherent, rather it emanates from s. 25 of the Extradition Act. That section gives the extradition hearing judge jurisdiction to consider Charter issues. This authority permits remedies for Charter breaches that pertain directly to the circumscribed issues relevant to the committal stage of the extradition process: United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 57. Where the remedy requested is a stay of proceedings, the person sought must demonstrate a nexus between the conduct alleged to constitute an abuse of process and the committal hearing itself: United States of America v. Khadr, 2011 ONCA 358, 106 OR (3d) 449, at para. 45, leave to appeal refused, [2011] S.C.C.A. 316; R. v. Larosa (2002), 166 CCC (3d) 449 (Ont. C.A.), at para. 52.

[45] A person sought in extradition proceedings may introduce evidence at the hearing if:

i. the evidence is relevant to the tests in s. 29(1) of the Extradition Act; and

ii. the judge considers the evidence reliable.

These twin requirements – relevance and reliability – appear in s. 32(1)(c) of the Act: M.(M.), at para. 74.

[46] The relevance requirement is linked directly to the committal test in s. 29 of the Act. In other words, the evidence must be relevant to the task of the extradition hearing judge. And that task is to determine whether the test for committal under s. 29(1) has been met. This involves consideration of the proposed evidence in light of the limited weighing the extradition hearing judge must undertake in applying the standard set for committal: M.(M.), at para. 76.

[47] To admit any evidence from the person sought offered to impeach the reliability of the evidence of the requesting state, the extradition hearing judge must be satisfied that the proposed evidence, considered in light of the entire record, could support the conclusion that the evidence essential to committal is so unreliable or defective that it should be disregarded: M. (M.), at para. 78.

[48] As a general rule, evidence that establishes a defence or attempts to establish a different or exculpatory account of events is not admissible at an extradition hearing. This evidence does not affect the reliability of the requesting state's evidence, rather has to do with the ultimate reliability of the requesting state's evidence which is for the foreign court, not the extradition hearing judge to determine: M. (M.), at para. 84.

Fresh Evidence on Appeal

[49] The test to be applied when a party proposes the introduction of fresh evidence on appeal is uncontroversial:

i. the evidence should generally not be admitted if it could have been obtained by the exercise of due diligence at trial;

ii. the evidence must be relevant and bear upon a decisive or potentially decisive issue in the proceedings at first instance;

iii. the evidence must be reasonably capable of belief; and

iv. the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

See, R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775.

The Principles Applied

[50] As I will explain I would reject the evidence proposed for admission in support of this ground of appeal and not give effect to the ground in any event.

[51] To take first, the proposed fresh evidence.

[52] The proposed evidence about the conclusion of proceedings in connection with the False Claims Act relator action in the United States could not have been obtained with the exercise of due diligence at the extradition hearing. The extradition hearing judge was aware of the existence of the relator civil action, but the litigation had not proceeded to trial, much less decision at that time. The proposed evidence consists principally of court records and thus appears reasonably capably of belief.

[53] However, the proposed evidence is not relevant to nor does it bear upon any decisive or potentially decisive issue in the extradition hearing.

[54] The proposed evidence is offered in support of a submission of issue estoppel, that is to say, that dismissal of the civil claim, which involved the same question, the same parties and resulted in a final decision, estops the United States government from proceeding with a criminal prosecution of the appellant. But, as I have already said, the task of the extradition hearing judge does not involve any role in the assessment of any potential defences or other aspects of the crime on which an accused bears an evidential burden. Such an assessment is assigned to the trial judge in the foreign jurisdiction.

[55] Further, it follows inexorably from the irrelevance of the proposed fresh evidence that it cannot satisfy the cogency requirement of Palmer. In other words, when taken together with the rest of the evidence admitted at the hearing, the proposed evidence could not reasonably be expected to have affected the result of that hearing. The extradition hearing judge's committal decision takes no cognizance of, thus cannot be affected by evidence of, defences, justifications or excuses that may be advanced at trial in the foreign jurisdiction.

[56] In addition, even if the claims of abuse of process and Charter infringement could be established without admission of the proposed fresh evidence, neither would warrant an order quashing the committal. Each lacks the nexus required to the circumscribed issues relevant to committal.

[57] Finally, claims of Charter infringement and abuse of process are relevant for the Minister to consider in determining whether to order or decline surrender. Each phase of the extradition process involves different considerations. To assign to the extradition hearing judge a task allocated to the Minister confuses the judicial phase with the executive role.

[58] I would dismiss the appellant's fresh evidence application and his appeal from committal.

JUDICIAL REVIEW OF THE SURRENDER DECISION

[59] The applicant invokes s. 57(1) of the Extradition Act to judicially review the surrender decision of the Minister. He seeks an order quashing the warrant of surrender.

The Decision of the Minister

[60] Counsel for the applicant made written submissions to the Minister on April 24, 2015 and again three months later, on July 23, 2015. The second set of submissions included the materials tendered as fresh evidence on the appeal from committal.

[61] On August 21, 2015, the Minister ordered the applicant's surrender and provided his reasons for doing so in a letter to the applicant's counsel.

The Reasons of the Minister

[62] The Minister considered and rejected the applicant's claims that he should decline to order surrender because:

i. the evidence against the applicant is insufficient and unreliable;

ii. the issues between the applicant and the JCCI are civil in nature and do not warrant extradition proceedings; and

iii. the dismissal of the civil claim against the applicant in the United States is dispositive of the criminal proceedings in which his extradition is sought.

[63] In connection with the first two grounds, the Minister noted that each had been argued before and rejected by the extradition hearing judge. This was, according to the Minister, the proper forum in which to advance those arguments. Each would be subject to appellate review. In any event, he was of the same view in connection with each as the extradition hearing judge.

[64] The conclusion of the Minister in connection with the impact of the dismissal of the civil claim is captured in two passages of his reasons:

The appropriate forum to raise a claim of abuse of process on the basis of impermissible relitigation is the trial court in the United States. In the context of impermissible relitigation, the doctrine of abuse of process engaged "the inherent power of the court to prevent the misuse of its procedure, in a way that would…bring the administration of justice into disrepute" (Canam Enterprises Inc. v. Coles (2000), 51 OR (3d) 481 (CA), at para. 55, per Goudge J.A., dissenting (approved 2002 SCC 63, [2002] 3 SCR 307), (emphasis added)). The outcome of the civil proceedings conducted in the United States, which are of a different nature and based on an unknown record, is not, in my view, relevant to my decision on surrender.

Mr. Whyte will have an opportunity to challenge the criminal proceedings against him on the basis of the outcome of the civil claim before the trial court in the United States. In these circumstances, the issue of whether the result of the civil claim in the United States is dispositive of the criminal proceeding against Mr. Whyte is a matter for the trial court in the United States to determine, and there is no basis to deny surrender on this ground.

The Arguments on Review

[65] The applicant says that in making his decision on surrender, the Minister was required to take into account the conduct of proceedings in the requesting state, both before and after the extradition request. This included the conduct of, and the result in, the civil proceedings based on the same allegations that ground the counts included in the indictment on which extradition is sought.

[66] The applicant contends that the Minister wrongly concluded that the disposition of the civil action was not relevant to his surrender decision. He also erred, according to the applicant, in concluding that the criminal prosecution did not represent an attempt to impeach a judicial finding by relitigating it a different forum. The Minister's failure to consider the impact of the dismissal of the civil claim, leaving it to the foreign trial court to decide its effect, offends the principles of fundamental justice.

[67] The respondent begins with a reminder that the standard of review we are to apply to the Minister's surrender decision is reasonableness. His decision is entitled to substantial deference, less so with respect to the application of s. 7 of the Charter, but subject to a high threshold. Section 7 may be successfully invoked only where the particular treatment to which a person sought will be subject in their requesting state would violate Canada's sense of fundamental justice or amount to an abuse of process. And that is simply not this case.

[68] The respondent argues that the applicant seeks to have Canadian authorities apply domestic legal principles to charges pending in a foreign jurisdiction as if extradition proceedings were a domestic trial on the merits. This is contrary to the presumption that the applicant will get a fair trial in the foreign jurisdiction; pays no heed to the deference due to the criminal law and procedure of the requesting state; and amounts to an attempt to pre-empt the decision of the foreign trial court.

[69] According to the respondent, before the unavailability of a defence could engage the threshold for a refusal under s. 44(1)(a) of the Extradition Act, or contravene the principles of fundamental justice, there must be a difference in substance in the laws of the requesting and requested state such that a defence available in Canada has no functional equivalent in the foreign jurisdiction; there must be a reasonable prospect that the defence would be successful if an accused were tried for the same conduct here; and the disparity between the laws in the two countries must lead to a significantly greater jeopardy for the person sought in the requesting state. This threshold is not met in this case.

The Governing Principles

[70] Several principles exert an influence in a determination of the outcome of this review of the Minister's surrender decision.

[71] First, the applicable standard of review is that of reasonableness. Blind submission to the Minister's assessment is not permissible. Nor is a reviewing court to re-assess the relevant factors and substitute its view for that of the Minister. Our task is to determine whether the Minister's decision falls within a range of reasonable outcomes. The court does this by asking whether the Minister considered the relevant facts, applied the correct legal test and reached a defensible conclusion: Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 41; M.(M.), at para. 106.

[72] Second, at the surrender stage, the Minister is required to decide whether it is politically appropriate and not fundamentally unjust for Canada to extradite the person sought. To make this decision, the Minister must consider all the relevant circumstances, not only individually, but also cumulatively, to determine whether surrender would be unjust or oppressive: Fischbacher, at paras. 36-37; M.(M.), at para. 113.

[73] Third, it is incumbent on the Minister to assess the potential consequences for the person sought of being subjected to the law of the foreign state. The foreign state, for example, may deal with a person sought on surrender in such a way that it would violate the principles of fundamental justice, and thus be unjust and oppressive to order surrender: Schmidt, at p. 522; Lake, at para. 24; M.(M.), at para. 115.

[74] Fourth, the availability of potential defences, which fall outside the scope of the double criminality inquiry required at the Authority to Proceed and committal phase of the process, can nonetheless be relevant at the surrender stage. This is so where a significant discrepancy and jeopardy exists for the same conduct between Canada and the requesting state. As a consequence, the Minister should consider, when relevant, how the person sought would be affected by the unavailability of a comparable defence in the requesting state to that available in Canada in equivalent circumstances: Fischbacher, at para. 54; M.(M.), at paras. 116-118.

[75] It does not follow, however, that every discrepancy in the availability of defences, justifications or excuses or in jeopardy, as between Canada and the requesting state, stamps an extradition as unjust or oppressive or contrary to the principles of fundamental justice. The language "unjust or oppressive" posits a high test, one that falls to be applied in light of a panoply of relevant factors, including not only the circumstances of the person sought, but also the principles of comity and reciprocity that are the bedrock of extradition: Fischbacher, at para. 54; M.(M.), at para. 119.

[76] As a general rule, the mere existence of differences in legal systems between Canada and the requesting state, in this case the United States of America, is not, without more, a basis upon which the Minister should refuse surrender. Before the unavailability of a defence in the foreign jurisdiction could engage the threshold for ministerial refusal under s. 44(1)(a) or be considered as contrary to the principles of fundamental justice, the person sought must show:

i. a difference of substance, not of mere labeling or slight variations in definition, in the respective laws of the requesting and requested state;

ii. a reasonable prospect of success were the defence to be raised if the person sought were tried for this same conduct in Canada; and

iii. the difference between the laws of the two countries must lead to a significantly greater jeopardy for the person sought in the requesting state.

See, M.(M.), at paras. 120 and 122-124.

The Principles Applied

[77] The standard of review applicable to the surrender decision is reasonableness, not correctness. This court does not re-assess the relevant factors and substitute its own view of how those factors play out in this case. To determine whether the surrender decision falls within a scope of reasonable outcomes, the court asks whether the Minister considered the relevant facts and reached a defensible outcome. In my view, subject to what I will say about his treatment of issue estoppel, he did so.

[78] For three reasons, I would not interfere with the surrender order.

[79] First, the conclusion of the Minister that the appropriate forum to raise a claim of abuse of process, in relation to the dismissal of the civil claim, is the trial court in the United States, is entirely reasonable. The Minister considered the relevant facts, the applicable law and reached a defensible conclusion that this issue did not provide a basis for denying surrender. That decision falls well within the range of reasonable outcomes and is entitled to deference.

[80] Second, the applicant has adduced no evidence that issue estoppel, perhaps differently labeled, is not available as a defence in the requesting state. Indeed, decisions such as Ashe v. Swenson, 90 S. Ct. 1189, 397 U.S. 436 (1970) confirm its availability as a rule of federal law albeit with a different description – collateral estoppel.

[81] Third, accepting that the Minister failed to consider that the unavailability of issue estoppel as a defence in the requesting state could engage the threshold for refusal under s. 44(1)(a) of the Extradition Act, or be considered contrary to the principles of fundamental justice, the circumstances here fall well short of that threshold. The defence is available in the requesting state. That it is labeled differently is not a difference in substance. Any differences do not lead to a significantly greater jeopardy for the applicant in the requesting state.

CONCLUSION

[82] For the reasons given, I would dismiss the appeal from committal and the application for judicial review of the Minister's surrender order.

Released: August 12, 2016 (DW)

"David Watt J.A."

"I agree E.A. Cronk J.A."

"I agree R.G. Juriansz J.A."