Court of Appeal for Ontario

Date: 2023-06-15 Docket: C70776

Judges: Zarnett, Thorburn and George 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 Czech Republic Respondent

and

Rudolf Karicka Applicant

Counsel: Anthony Moustacalis and Aidan Seymour-Butler, for the applicant Heather J. Graham, for the respondent

Heard and released orally: June 8, 2023

On application for judicial review of the surrender order of the Minister of Justice, dated May 20, 2022.

Reasons for Decision

[1] The applicant, Rudolph Karicka, is a Czech citizen of Roma ancestry. He has been ordered to surrender to the Czech Republic. There, he faces a mandatory minimum two-year sentence for theft, violation of domestic freedom, and damage to another’s property (“the Extradition Offences”), offences for which he was convicted in absentia after having absconded to Canada.

[2] He seeks judicial review of the Minister of Justice’s (“Minister”) decision to return him to the Czech Republic and claims that to do so would shock the conscience of Canadians or otherwise be contrary to his s. 7 Charter rights. He claims that:

i. The Minister failed to appreciate the effect of discrimination against Roma people in the Czech Republic;

ii. The passage of time justifies a refusal to surrender the applicant for extradition where delay compromises the fairness of extradition proceedings or is so egregious that it shocks the conscience of Canadians or amounts to an abuse of process: s. 45 of the Extradition Act, S.C. 1999, c.18;

iii. The Minister failed to appreciate the harsh impact of his two-year minimum sentence in the Czech Republic; and

iv. The Minister failed to take into account the applicant’s personal circumstances.

[3] The Minister concluded that there was no justification to refuse the applicant’s surrender to the Czech Republic as (i) surrender would not be contrary to the relevant extradition agreement in this case, namely the Treaty Between His Majesty and Czechoslovakia, for the Extradition of Criminals [^1], (ii) it would not be unjust or oppressive, and (iii) it would not breach the applicant’s s. 7 Charter rights. He therefore ordered his surrender to the Czech Republic.

[4] The standard of review of the Minister’s decision is reasonableness. Interference with the Minister's decision will be limited to exceptional cases of "real substance". It is not this court’s role to reassess the factors considered by the Minister or substitute its own view. “The court must determine whether the Minister’s decision falls within a range of reasonable outcomes”: Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 41. This reflects the breadth of the Minister's discretion: Lake, at paras. 34-41; India v. Badesha, 2017 SCC 44, [2017] 2 S.C.R. 127, at para. 39; Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609, at para. 22; and United States of America v. Johnstone, 2013 BCCA 2, at para. 32. Courts must also recognize the constraints on the Minister imposed by international law including treaty obligations: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 105-7, 114. In that regard, the Supreme Court of Canada has recognized that the Minister enjoys “superior expertise” in relation to these international obligations and foreign affairs, including the extent to which they factor into his assessment of a fugitive’s claim that extradition would violate their rights under the Charter: Lake, at para. 37.

[5] In arriving at his decision, the Minister is entitled to rely on information provided by the requesting state “without the need for further inquiry”: Scarpitti v. United States of America, 2007 BCCA 498, 228 C.C.C. (3d) 262, at para. 67. The applicant has the onus to demonstrate that he would face actual risk of persecution if he is surrendered to the Czech Republic.

[6] We find the Minister’s decision was reasonable.

[7] First, the Minister recognized the historical and persistent problems with the respect to the treatment of the Roma people and the applicant’s claims about his experiences. The Minister did not find that this was why the applicant left the Czech Republic. He noted the improvements in conditions for Roma people with tangible results in the last decade, and the mechanisms that have been put into place to combat racism. At the oral hearing of this appeal, the applicant’s counsel conceded that the situation has improved. In the absence of any evidence that he will face persecution if surrendered, it was reasonable for the Minister to rely on the improved conditions: Mexico v. Hurley (1997), O.R. (3d) 481, 1997 CarswellOnt 2172, at paras. 50, 61-64 (Carswell) (C.A.); Hungary v. Dascalu, 2009 BCCA 132, 244 C.C.C. (3d) 98, at paras. 27-29.

[8] Second, he reasonably determined that the enforcement of the Czech sentence was not barred by prescription because the passage of time resulted from the applicant’s own decision to abscond to Canada without notifying Czech authorities. The Minister did not accept the applicant’s claims about his unawareness of the charges against him and instead, accepted that he had been provided with notice of his charges while in custody on unrelated charges. Importantly, the applicant misrepresented at his vacation hearing that he had never been arrested in the Czech Republic on the Extradition Offences. He had to have known he had been charged with offences as he had served time in a correctional institution in the Czech Republic before absconding to Canada.

[9] The Minister made inquiries with Czech authorities and received a detailed account of the passage of time between his flight and the extradition request and determined that there was nothing abusive in the timing given the applicant’s decision to abscond, the efforts made by Czech authorities to search for and prosecute him and the completion of a treaty request once he was located. There was no evidence that the fairness of the extradition proceedings was compromised.

[10] Moreover, Czech authorities have confirmed that the applicant will be entitled to a new trial in the Czech Republic if he seeks one, may elect to retain counsel to prepare for that proceeding, and the evidence previously adduced is still available. As such, the Minister reasonably concluded that there is no evidence that the delay caused actual prejudice of such magnitude that the public’s sense of decency and fairness is affected.

[11] Third, the Minister noted that in Canada, the equivalent offences for break and entry causing damage would carry a maximum term of life imprisonment, and he determined that it is not shocking to the Canadian conscience to serve a two-year sentence for these offences with credit for presentence custody on a 1:1 basis with approximately 10 months remaining on his sentence. This is consistent with other cases in which the courts have held that severe sentences will generally not shock the conscience of Canadians unless they invoke consequences comparable to torture, the death penalty or excision of limbs and it is not for the Minister to assess whether foreign mandatory minimum penalties would be unconstitutional under Canadian law as that would amount to an impermissible extraterritorial application of s. 12 of the Charter: United States v. Hillis, 2021 ONCA 447, at paras. 103-106.

[12] Finally, the Minister was satisfied that the applicant’s health conditions could be accommodated in a custodial setting in the Czech Republic. The Minister considered the interests of the applicant’s wife and children, and their medical issues, and observed that this must be weighed with other factors, including the importance of complying with Canada’s international treaty obligations. Moreover, the children’s mother’s immigration status is not inexorably linked to the applicant’s situation, and there was nothing to suggest that the children’s ability to continue accessing care in Canada would be jeopardized by the applicant’s surrender.

[13] For these reasons, the application for judicial review of the Minister’s decision is dismissed.

“B. Zarnett J.A.” “Thorburn J.A.” “J. George J.A”

[^1]: See the Treaty Between His Majesty and Czechoslovakia, for the Extradition of Criminals, United Kingdom and Czechoslovakia, November 11, 1924 (amended by protocol, June 4, 1926; extended to Canada as from August 15, 1928).