The Minister of Justice and the Attorney General of Canada on Behalf of Romania v. Boros

[Indexed as: Romania v. Boros]

Ontario Reports Court of Appeal for Ontario

Strathy C.J.O., Miller and Trotter JJ.A.

March 20, 2020

APPLICATION for the judicial review of an extradition surrender order of Lametti J. dated February 19, 2019.

Counsel: Julianna A. Greenspan and Brad Greenshields, for applicant. Adrienne Rice, for respondent.

BY THE COURT: --

Introduction

[1] Romania seeks the extradition of Clara Eva Boros for fraud and forgery offences allegedly committed between 1993 to 1998.

[2] Ms. Boros was committed for extradition on April 21, 2017. The Minister of Justice (the "Minister") signed a surrender order on February 19, 2019. The applicant applies for judicial review of the Minister's order under s. 57 of the Extradition Act, S.C. 1999, c. 18. For the following reasons, we allow the application and remit the case back to the Minister for further consideration.

Background

[3] Ms. Boros, a Romanian citizen at the time, was charged with offences related to embezzlement and forgery in the course of her employment. It was alleged that she committed these offences between 1993 and 1998, resulting in losses to her employer of roughly CDN$100,000 at the time (estimated to be approximately $217,000 today).

[4] Ms. Boros was employed as a cashier and was responsible for making deposits on behalf of her employer into a corporate bank account. It is alleged that she falsified documents (i.e., deposit slips and company ledgers), enabling her to skim off some of the money that ought to have been deposited to the credit of her employer. The employer claims that it had to obtain an interest-bearing loan to cope with the loss and that there has been no recovery.

[5] In the authority to proceed ("ATP"), issued under s. 15 of the Extradition Act, the Minister lists the Canadian offences corresponding to the alleged Romanian offences as fraud (Criminal Code, R.S.C. 1985, c. C-46, s. 380) and forgery (s. 368(1)).

[6] Ms. Boros arrived in Canada on September 24, 1998 and sought refugee status, which was granted on October 26, 1999. She obtained permanent resident status on December 27, 2000, and Canadian citizenship on August 15, 2005. Ms. Boros is currently 54 years old, married and has three children.

[7] The applicant was tried and convicted in absentia in Romania on January 10, 2000. On the same day she was sentenced to ten years' imprisonment, fined and ordered to pay restitution. Her appeal from sentence was dismissed on April 13, 2000. As the extradition judge observed in her reasons for judgment (Romania v. Boros, 2017 ONSC 1656, at para. 10), Ms. Boros was represented by counsel throughout the proceedings in Romania. However, she also notes that Ms. Boros denied being properly summoned. Documentation from the Romanian court states that Ms. Boros was "legally summoned" and "has failed to appear in court, as she has been absconding from both prosecution and from trial".

[8] There is a serious dispute as to when the Romanian authorities became aware that Ms. Boros was in Canada. Ms. Boros takes the position that, by virtue of a September 23, 1998 police statement given by a manager of the applicant's former employer (Ola Ioan), Romanian authorities were aware that she was in Canada at that time. In that statement Ms. Ioan said: "from un-official sources the cashier Boros Clara is assumed to be in Canada attempting to abscond from the offence committed". In fact, Ms. Boros arrived in Canada the very next day, on September 24, 1998. The respondent asserts that Romania only learned of Ms. Boros' whereabouts as a result of receiving an August 11, 2008 Interpol notification.

The Extradition Hearing

[9] On December 4, 2008, the Minister of Justice received provisional materials from Romania seeking Ms. Boros' extradition. An ATP was issued on May 13, 2015. An ex parte summons was not served on Ms. Boros until November 16, 2016. This was roughly 18 months after the issuance of the ATP, and almost eight years after Romania's request.

[10] In thorough reasons, the extradition judge concluded, at paras. 34-36, that there was sufficient evidence to establish a prima facie case that the extradition crimes listed in the ATP were committed: see Extradition Act, s. 29(1)(a). The extradition judge considered other arguments advanced by Ms. Boros, including whether a stay should be granted for an abuse of process because of the delay in seeking her extradition. The extradition judge declined to stay the committal order on this basis. As she said, at para. 60:

As the cases above demonstrate, a lengthy delay on the part of a foreign government, without any impact on the fairness of the extradition hearing, does not constitute an abuse of process warranting a stay of proceedings. This is so even when the requesting state is aware of the whereabouts of the person sought, and the person was convicted and sentenced in absentia.

While I am sympathetic to the respondent's predicament of being sought for extradition years after having settled in Canada, I find that the respondent has not demonstrated a negative impact on the fairness of the extradition hearing[.]

[11] Ms. Boros was ordered committed for extradition. She has not appealed this order.

The Decision to Surrender Ms. Boros

[12] Since her committal, Ms. Boros has made numerous submissions to successive Ministers of Justice, requesting that they exercise their discretion not to order her surrender. These submissions have variously related to the following issues: the delay by Romania and Canada in the extradition process; Ms. Boros' personal circumstances; poor Romanian prison conditions; Ms. Boros' medical conditions that require ongoing treatment; Ms. Boros' Hungarian-Roma minority status that is said to attract persecution in Romania; the stark disparity between Romanian and Canadian sentences; and the lack of integrity of the in absentia trial and sentencing proceedings in Romania.

[13] In a lengthy letter (20 pages), the Minister rejected each of these claims and provided reasons. Based on his conclusions, the Minister determined that it would be appropriate to surrender Ms. Boros for extradition. In terms of the delay occasioned in the proceedings, the Minister said, "in my view, this is not one of those clearest of cases where the overall delay was occasioned by, or constitutes, conduct that is so offensive to notions of fair play and decency that surrender would undermine the extradition process". Referencing the language of s. 44(1)(a) of the Extradition Act, the Minister concluded that the applicant's surrender "would not be unjust or oppressive"; with regard to the Canadian Charter of Rights and Freedoms, it would not "shock the conscience of Canadians or unjustifiably violate the principles of fundamental justice".

[14] The Minister ordered that Ms. Boros be surrendered.

The Arguments on the Judicial Review Application

[15] Ms. Boros submits that "the Minister exercised his discretion unreasonably in concluding surrender would not be unjust or oppressive (Extradition Act, s. 44(1)(a)) and contrary to s. 7 of the Charter, having regard to the 15-year delay between the in absentia foreign proceedings and the Authority to Proceed". This submission encompasses both the time it took Romanian authorities to request Ms. Boros' extradition (eight years from when the offences were discovered), as well as Canada's delay in issuing an ATP (seven years after Ms. Boros' extradition was requested by Romania). Ms. Boros also relies on the additional 18 months that elapsed between the issuance of the ATP and the summons.

[16] Ms. Boros submits that, in relation to the delay in Romania, the Minister failed to make appropriate inquiries of Romanian officials to properly resolve the conflicting evidence concerning when Romania first became aware that she was in Canada. With respect to Canada's delay, Ms. Boros contends that this lengthy time period is not properly accounted for and the manner in which the Minister addressed the issue lacks transparency.

[17] The respondent submits that there was no untoward delay on the part of the Romanian government. It acted promptly after learning of Ms. Boros' location upon receiving the August 11, 2008 Interpol notification. Moreover, it takes the position that the delay at the Canadian end was not unreasonable, and certainly not sufficient to prevent the applicant's extradition.

Analysis

[18] On an application for judicial review under the Extradition Act, the Minister's surrender decisions are to be afforded substantial deference and assessed on a standard of reasonableness. In Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761, [2008] S.C.J. No. 23, 2008 SCC 23, LeBel J. described the applicable standard, at para. 41:

Reasonableness does not require blind submission to the Minister's assessment; however, the standard does entail more than one possible conclusion. The reviewing court's role is not to re-assess the relevant factors and substitute its own view. Rather, the court must determine whether the Minister's decision falls within a range of reasonable outcomes. To apply this standard in the extradition context, a court must ask whether the Minister considered the relevant facts and reached a defensible conclusion based on those facts.

(Emphasis added)

Moreover, in conducting this type of review, this court must acknowledge the Minister's "superior expertise in Canada's international relations and foreign affairs": see India v. Badesha, [2017] 2 S.C.R. 127, [2017] S.C.J. No. 44, 2017 SCC 44, at para. 39.

[19] In its recent decision in Canada (Minister of Citizenship and Immigration v. Vavilov, [2019] S.C.J. No. 65, 2019 SCC 65, the Supreme Court considered the nature of the reasonableness standard of review. As part of its analysis, the majority addressed transparency in decision-making and its place within a reasonableness review framework. As the majority said, at paras. 13, 15 and 95 of its reasons:

Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a "rubber-stamping" process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.

In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker's place.

That being said, reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it. It would therefore be unacceptable for an administrative decision maker to provide an affected party formal reasons that fail to justify its decision, but nevertheless expect that its decision would be upheld on the basis of internal records that were not available to that party.

(Emphasis added)

We return to the issue of transparency below when evaluating the Minister's response to claims of unreasonable delay by the Romanian authorities, and the delay in Canada.

[20] As a preliminary matter, it is clear that s. 11(b) of the Charter has no direct application to extradition proceedings. However, delay is among the relevant factors the Minister may take into account under s. 44(1)(a) of the Extradition Act: see United States of America v. Cavan (2015), 127 O.R. (3d) 430, [2015] O.J. No. 5107, 2015 ONCA 664, 329 C.C.C. (3d) 485, at para. 46. In order to foreclose surrender, the delay must amount to an abuse of process: see Argentina (Republic) v. Mellino, [1987] 1 S.C.R. 536, [1987] S.C.J. No. 25, at pp. 547-48 S.C.R.; United States of America v. Allard, [1987] 1 S.C.R. 564, [1987] S.C.J. No. 20, at p. 571 S.C.R.

[21] In his letter of February 19, 2019, the Minister acknowledged that delay in seeking extradition is a relevant factor. The Minister wrote: "I have reviewed the delay in seeking Ms. Boros' extradition and conclude that it does not constitute an abuse of process."

[22] The Minister referenced the conflicting evidence as to when the Romanian authorities knew that the applicant was in Canada. He considered the police statement given by Ms. Boros' former manager on September 23, 1998. The Minister wrote:

The Romanian authorities were clearly aware of Ms. Boros' residence in Canada as of 2008. The evidence presented in the ROC is unequivocal on that point. The brief speculation of Ms. Ioan in her statement to police investigators in 1998 is not evidence that the government of Romania had knowledge of Ms. Boros' residence in Canada.

There is no other evidence to suggest that Romania was aware of Ms. Boros' location before 2008.

(Emphasis added)

[23] This passage conveys two ideas. First, Ms. Ioan's statement amounted to mere speculation about Ms. Boros' whereabouts. Second, even though Ms. Ioan's statement was given to a police officer investigating criminal offences, it was not evidence that the government of Romania knew of her whereabouts.

[24] We accept Ms. Greenspan's submission that the Minister acted unreasonably in purporting to resolve this issue without making inquiries of Romanian officials concerning knowledge of Ms. Boros' whereabouts. It was never properly explained why Ms. Ioan's statement to the police was not some evidence that, as early as September 23, 1998, Romanian officials had knowledge that Ms. Boros had travelled to Canada.

[25] Given Ms. Ioan's said that she "assumed" that Ms. Boros was in Canada, it was not unfair to characterize this information as speculative in nature. Ms. Rice for the respondent also argues that Ms. Ioan's statement was inaccurate because Ms. Boros was not in Canada at the time. That is true -- Ms. Boros did not land in Canada until the next day. While the statement was technically inaccurate, it was remarkably prescient.

[26] There is no indication that Romanian authorities took any steps to follow up on this information. While it would appear that the Interpol notification in 2008 prompted the Romanian government to make its extradition request a few months later, this does not speak to the question of whether any efforts were made to follow up on the very helpful Ioan statement, made ten years earlier. More importantly, the Minister appears to have made no inquiries on this issue. This type of information could not reasonably be obtained by Ms. Boros. Out of fairness to Ms. Boros, and the integrity of the process, it is incumbent upon the Minister to make inquiries and get to the bottom of this troubling issue.

[27] In reaching this conclusion, we note that the Minister had his officials make inquiries of the Romanian authorities about numerous other matters (e.g., the conditions of confinement to which Ms. Boros will be subjected; her access to medical treatment while incarcerated; whether Ms. Boros would be at risk of persecution in Romania; whether Ms. Boros has the right to request a re-trial if returned to Romania; and whether the enforcement of Ms. Boros' prison sentence is time-barred). Yet, there was no effort to address the dispute discussed above. The failure to make this inquiry undermines the reasonableness of the Minister's decision.

[28] In terms of the delay between Romania's request of December 4, 2008, and the issuance of the ATP on May 13, 2015, Ms. Boros submits that the Minister provided no meaningful explanation for the delay. She argues that the Minister's approach to this issue lacks transparency. Ms. Greenspan argues that the Minister did not properly explain the delay and merely "parroted" language from the Supreme Court of Canada's decision in Mellino. We set out below the relevant paragraphs of Mellino and the Minister's letter:

[29] We are not persuaded that the Minister merely "parroted" Mellino as Ms. Boros claims. However, we are not satisfied that the Minister addressed this concern transparently. The above-quoted passage from the Minister's letter covers a long period of time, but sheds very little light on what happened. This general approach denies Ms. Boros the opportunity to understand why the process took so long. It also deprives this court of the ability to gauge the reasonableness of the Minister's decision in terms of whether his officials could have advanced this file more expeditiously and what efforts were made, if any, to encourage Romanian officials to act with diligence in responding to requests from its Canadian counterparts. Moreover, the 18-month delay between the issuance of the ATP and the summons is not explained. The combined Canadian delay of nearly eight years is not addressed beyond an implicit general claim that these matters take a long time. In our view, this is inadequate.

[30] The delay between Ms. Ioan's statement of September 23, 1998 and the issuance of the summons on November 15, 2016 -- more than 18 years -- has not been properly investigated, nor properly explained. In the circumstances, the surrender order cannot stand. On the existing record, we are unable to determine whether the decision to order Ms. Boros' surrender was reasonable. More information is required before we can properly conduct this analysis.

[31] Accordingly, the application for judicial review is allowed and the case is referred back to the Minister for reconsideration in light of these reasons: see Extradition Act, s. 57(6).

[32] We respectfully request that the Minister make inquiries of the Romanian authorities as to when its officials first became aware that Ms. Boros resided in Canada, especially in light of the police statement given by Ms. Ioan on September 23, 1998. After these inquiries are complete, it would be appropriate to disclose the results to Ms. Boros and permit her to make submissions.

[33] We further direct the Minister to provide a detailed explanation for Canada's delay following the issuance of the ATP and leading up to the issuance of the summons.

Application allowed.