Court of Appeal for Ontario

Date: 20230203 Docket: C70187

Judges: Doherty, van Rensburg and Roberts JJ.A.

Between:

The United States of America, His Majesty the King and Minister of Justice Respondent

And

Paul Douglas Creighton Applicant

Counsel:

Kayvan Vakili, for the applicant Adrienne Rice and Roy Jahchan, for the respondent, Minister of Justice

Heard and released orally: January 31, 2023

On judicial review of the order of surrender of the Minister of Justice, dated December 9, 2021.

Reasons for Decision

[1] The Minister of Justice (“Minister”) ordered the applicant surrendered for extradition to the United States on charges of child luring and the production of child pornography. The applicant challenges the surrender order on two grounds:

• Did the Minister fail to undertake an independent assessment of the Cotroni factors when determining whether surrender of the applicant would contravene s. 6(1) of the Charter?
• Did the Minister fail to sufficiently address the personal circumstances of the applicant when considering whether his surrender would infringe his s. 7 rights, or would be “unjust or oppressive” within the meaning of s. 44(1) of the Extradition Act, S.C. 1999, c. 18?

[2] The Minister’s decision to surrender for extradition is entitled to substantial deference: Lake v. Canada, 2008 SCC 23, at para. 41. The Minister must apply the correct legal principles and engage in the proper legal analysis. The Minister must also reach a “defensible” conclusion on the application of the relevant principles to the facts as found by the Minister: United States of America v. Leonard, 2012 ONCA 622, at para. 48, leave to appeal refused, [2012] S.C.C.A. No. 490.

[3] If the applicant cannot demonstrate a material legal error, this court will interfere with the Minister’s decision only if that decision is outside a range of reasonable outcomes.

A. The Consideration of the Cotroni Factors

[4] The applicant submitted that in his examination of the Cotroni factors, the Minister treated the opinion of the Attorney General of Ontario (“Attorney General”), that it would not be equally effective to prosecute the applicant in Canada, and that consequently no charge would be laid in Ontario, as determinative of the Cotroni inquiry. The applicant accepts that the position of the Attorney General is relevant in the Cotroni analysis, but submits that it is only one of several factors.

[5] The Minister reviewed the relevant evidence. He noted that the Attorney General had not laid charges, and had determined that laying charges in Canada would not be an equally effective or a realistic option. The Minister went on, however, to refer to these factors as “only two of the factors I have considered”.

[6] The Minister proceeded to list several other considerations, including:

• the very young victim, who had been exploited and groomed by the applicant’s conduct for years, lived in the United States;
• the investigation and preparation of the case had been done entirely in the United States by American authorities; and
• the evidence was located in the United States.

[7] The Minister made no error in law, either in identifying the relevant legal principles in the Cotroni analysis, or in his analysis and application of those principles and the facts before him. His conclusion falls well within the reasonableness range.

[8] We reject this ground of appeal.

B. Was the Surrender of the Applicant Contrary to Section 7, and/or “Unjust or Oppressive” Within the Meaning of Section 44(1)(a) of the Extradition Act?

[9] Surrender of a person for extradition in circumstances that would “shock the conscience of the community” contravenes that person’s rights under s. 7 of the Charter: United States v. Burns, 2001 SCC 7, at para. 60; Canada v. Fischbacher, 2009 SCC 46. The Minister must also refuse to surrender a person if, in all the circumstances, the surrender would be “unjust or oppressive”: Extradition Act, s. 44(1)(a). The constitutional standard and the statutory provision overlap: Lake, at para. 24, Fischbacher, at para. 39.

[10] The applicant referred to several factors to support the claim that his surrender would violate both s. 7 of the Charter and s. 44(1)(a) of the Extradition Act. He highlighted the much lengthier sentence that he would inevitably receive in the United States compared to the sentence he would receive for the same conduct in Ontario. The applicant also referred to various medical problems that he has, and to the significant period of time that elapsed after the American authorities became aware of the alleged offences and before they sought extradition. According to the applicant, this passage of time exacerbated his various medical problems.

[11] We note that the Minister had no medical evidence the applicant’s health problems had worsened with the passage of time between the initiation of the investigation and the request for extradition. The Minister also had no evidence that the applicant’s medical problems could not be adequately addressed in the American penal system. The Minister had representations from the American authorities that the applicant’s medical problems could be adequately addressed while he was in custody. The Minister was entitled to accept and act on those representations.

[12] The Minister appreciated the arguments advanced by the applicant, the substance of the evidence in support of those arguments, and the legal principles to be applied in considering the arguments. The Minister canvassed much of the relevant case law. He accepted that some of the relevant considerations, like the length of the sentence the appellant was likely to receive in the United States, supported the argument that extradition would cause undue hardship to the applicant. The Minister was satisfied, however, that those concerns did not mean that the applicant’s extradition would shock the conscience of Canadians, or make the surrender of the applicant unjust or oppressive.

[13] The Minister’s ultimate determination that the applicant had not met the high threshold required under either s. 7 of the Charter, or s. 44(1)(a) of the Extradition Act was reasonably open to him on the entirety of the record. We cannot interfere with that assessment.

[14] The application for judicial review is dismissed.

“Doherty J.A.”

“K. van Rensburg J.A.”

“L.B. Roberts J.A.”