Court of Appeal for Ontario

Date: 2017-11-10 Docket: C63440

Judges: Simmons, van Rensburg and Nordheimer 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

The Attorney General of Canada on behalf of the United States of America Respondent/Requesting State

and

James Sheldon Norton Applicant/Person Sought

Counsel

Gordon Scott Campbell & Karen G. Kernisant, for the applicant

Richard A. Kramer, for the Attorney General of Canada

Heard

November 3, 2017

Application

On application for judicial review of the surrender order of the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, concerning an application brought pursuant to s. 43(2) of the Extradition Act.

Reasons for Decision

[1] The applicant seeks judicial review of the decision of the Minister of Justice, dated February 9, 2017, that ordered his surrender to the authorities of the United States of America. The applicant seeks to have that order quashed or, in the alternative, have the matter remitted back to the Minister for reconsideration.

[2] The background facts may be stated briefly. On March 26, 2010, after making arrangements by cell phone, Mr. Norton agreed to sell and deliver marijuana to an undercover police officer in the State of New Jersey. Mr. Norton delivered three large duffel bags containing 80 pounds of marijuana to the undercover officer at a hotel in New Jersey. Mr. Norton was immediately arrested.

[3] Mr. Norton was indicted by a grand jury on September 30, 2010. On March 21, 2011, he attended court with counsel and signed a voluntary plea agreement with the prosecutor in which he admitted to the essential elements of the offence. The plea agreement stipulated that Mr. Norton would serve a term of eight years in custody in a New Jersey Correctional facility in exchange for his admission of guilt. Mr. Norton was ordered to appear in court for sentencing on June 24, 2011. The sentencing was adjourned on consent on a number of occasions. It was finally set for March 23, 2012. On March 23, 2012, Mr. Norton failed to appear in court. The matter was adjourned to March 30, 2012, at which point Mr. Norton again failed to appear and a warrant was issued for his arrest.

[4] On September 16, 2015, at the request of the United States, Mr. Norton was provisionally arrested, pursuant to s. 13 of the Extradition Act, S.C. 1999, c. 18. On May 26, 2016, a judge of the Superior Court of Justice found that there was sufficient evidence to commit Mr. Norton on trafficking in a controlled substance as set out in the Authority to Proceed. Mr. Norton was ordered into custody to await the Minister's decision on surrender pursuant to the Extradition Act. Mr. Norton did not appeal the decision of the extradition judge.

[5] Mr. Norton is 54 years old. He was born in the United States and is a Mohawk of Akwesasne. He is registered as an Indian under the Indian Act, R.S.C., 1985, c. I-5 and is officially recognized as a member of the Mohawks of Akwesasne. Mr. Norton has familial and cultural roots throughout the Akwesasne territory, which overlaps Ontario, Quebec and New York State. Mr. Norton's maternal grandparents are both Mohawk, with his grandmother being from Christie Island in Canada, and his grandfather being from Akwesasne in St. Regis, New York. It is unclear whether Mr. Norton is a Canadian citizen.

[6] As a young man, Mr. Norton joined the United States military, where he stayed for eight years. When he left the military, Mr. Norton had trouble finding steady employment. He spent approximately four years in custody in the United States for drug conspiracy related offences, as well as six months in custody for a conviction related to a fight. He has been diagnosed as an alcoholic, and in recent years has attempted to overcome his addiction. Mr. Norton now reports that he rarely drinks. Mr. Norton has three children aged 26, 16, and 6 years old, who do not live with him and appear to all live in the United States. Mr. Norton is currently in a relationship with a woman who lives in the Cornwall, Ontario area.

[7] Submissions were made on behalf of Mr. Norton to the Minister regarding her decision on surrender on October 13, 2016, January 10, 2017 and January 11, 2017. In particular, Mr. Norton submitted that his surrender should be denied based on his personal circumstances, including his Aboriginal heritage under s. 7 of the Canadian Charter of Rights and Freedoms and under s. 6(1) of the Charter. On February 9, 2017, the Minister gave detailed reasons for her decision to surrender Mr. Norton to the authorities of the United States of America.

[8] The applicant asserts that the Minister failed to give proper consideration to the principles set out in this court's decision in United States of America v. Leonard, 2012 ONCA 622, 112 O.R. (3d) 496 and the principles established in R. v. Gladue, [1999] 1 S.C.R. 688. The applicant also seeks to have us provide clarification of the requirement to accord special consideration to Aboriginal defendants, at para. 57 of the decision in Leonard which he asserts requires the Minister to place "predominant emphasis" in her surrender decision on Aboriginal heritage, to address the systemic problems for Indigenous offenders identified in Gladue and emphasized in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433.

[9] We do not agree that the Minister failed to properly apply the decision in Leonard. In her lengthy and detailed reasons responding to the applicant's submissions, she canvassed all of the relevant factors. She specifically reviewed the reasons in Leonard and applied the principles articulated in that case, taking Mr. Norton's Gladue factors into special consideration both in assessing whether his surrender would violate the principles of fundamental justice under s. 7 of the Charter and in determining whether extradition was a justifiable limitation of his s. 6(1) Charter rights.

[10] Recognizing that an individual assessment was required, the Minister nevertheless responded to the applicant's arguments that his circumstances were similar to those of Mr. Leonard and Mr. Gionet (whose surrender was also at issue in the Leonard case), and warranted the same result. She pointed out, correctly in our view, that there were significant differences between the individual circumstances of Mr. Leonard and Mr. Gionet, on the one hand, and the applicant on the other. Those differences included:

(i) that the applicant had a criminal record in the United States for similar offences;

(ii) that it was not clear that the applicant was a Canadian citizen;

(iii) that the applicant could not be prosecuted in Canada for the offence to which he pled guilty in New Jersey;

(iv) that, unlike the situation with Messrs. Leonard and Gionet, the sentence that the applicant faces in New Jersey (and which was part of his plea arrangement) was not so different than what he might face if successfully prosecuted here.

[11] The Minister also expressly considered the factors identified in Gladue. The Minister noted that the applicant's Aboriginal background, along with his other personal circumstances, would be considered at the time of sentencing.[1] She also noted that his Aboriginal background would be considered and accommodated while he was incarcerated in New Jersey. Unlike the situation in Leonard, there is simply nothing to which the applicant can point that would establish that the Minister did not give meaningful consideration to the principles in Gladue in reaching her conclusion that the applicant's surrender should be ordered.

[12] In addition, the Minister had other matters that she had to take into account in reaching her decision on surrender, including Canada's international treaty obligations. As Sharpe J.A. said in Leonard, at para. 69:

The Minister's decision involves a fact-intensive balancing inquiry, weighing not only the Cotroni factors [which are applicable to the s. 6(1) analysis] but also political and international relations concerns.

[13] This court must accord substantial deference to the Minister's decision. The standard of review is reasonableness. Unlike the situation in Leonard, apart from claiming the Minister failed to give proper consideration to Gladue principles, the appellant has not asserted any discrete legal error in the Minister's decision. In light of the considerations outlined in the Minister's reasons, the applicant has failed to establish that the Minister's decision does not fall "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.

[14] Finally, we do not see any reason or need, in the context of this case, to provide any clarification of this court's decision in Leonard.

[15] The application is dismissed. The sealing order made by Doherty J.A. on September 14, 2017 remains in full force and effect.

Janet Simmons J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.

Footnote

[1] The Minister noted that the sentencing judge in New Jersey would have the authority to shorten an agreed upon sentence and that the plea agreement expressly recognized this authority.