Court of Appeal for Ontario
Date: 2024-01-29 Docket: COA-23-CR-0178
Before: van Rensburg, Sossin and Monahan 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 Minister of Justice of Canada and Attorney General of Canada, on behalf of the United States of America Respondent
and
Kyle Jones Applicant
Counsel: Michelle Psutka, for the applicant Heather J. Graham, for the respondent
Heard: January 18, 2024
On application for judicial review of the surrender order of the Minister of Justice, dated September 1, 2022.
Sossin J.A.:
Overview
[1] This is an application for judicial review from the Minister of Justice’s order of surrender under the Extradition Act, S.C. 1999, c. 18. The applicant, Kyle Jones, contends that the Minister’s decision is unreasonable and should be quashed. He has abandoned his appeal against committal under the Extradition Act.
[2] The applicant is wanted by the United States to stand trial in the United States District Court for the Western District of Pennsylvania for sexual exploitation of children and interstate communication-extortion. On March 11, 2022, Braid J. issued an order for the committal of the applicant under s. 29 of the Extradition Act, for child luring contrary to s. 172.1(1) of the Criminal Code, R.S.C., 1985, c. C-46 (the corresponding offence for the conduct in respect of which the applicant is wanted in the United States).
[3] The applicant is charged in the United States with the offence of sexual exploitation of children, and extortion by means of interstate communications. It is alleged that, between 2014 and 2015, Mr. Jones communicated with a 13-year-old female in Pennsylvania, referred to as Victim 4, via multiple social media sites. He asked her to send sexually explicit nude images and videos of herself. On the basis of his threats and coercion, she sent the applicant this material. The applicant sought further material of a similar nature. He told the complainant that he knew where she lived and went to school and threatened to come to her house. He threatened to send the material he had to the complainant’s family and friends if she did not send additional material. After she refused to cooperate further, the applicant carried out his threats to disseminate her sexually explicit photos to her family and friends.
[4] The applicant pleaded guilty to a similar offence involving a different child during the same time period (i.e. child luring under s. 172.1(1)(b) of the Criminal Code) in St. Catharines in 2017. On March 1, 2017, he was sentenced to two years less a day, taking into account 200 days of pretrial custody. He also received 3 years of probation as well as a s. 161(1) prohibition order for 15 years under the Criminal Code. The applicant was released on parole in November 2017.
[5] Following his committal, the applicant made submissions to the Minister arguing that he should not be surrendered to the United States because it would be unjust or oppressive, or alternatively requesting that the Minister seek certain assurances before surrendering him, including an assurance that the U.S. will not pursue federal civil commitment proceedings and that state civil commitment proceedings will be foreclosed. Upon surrender for trial in the United States, the applicant contends that he faces the possibility of indeterminant “civil commitment”, a legal process in the United States that allows for a “sexually dangerous person” to be held in custody for treatment.
[6] The Minister considered and rejected the applicant’s arguments, and on September 1, 2022, issued the order for surrender with no assurances.
The Standard of Review
[7] On judicial review, the standard of review for the exercise of the Minister’s discretion under the Extradition Act is reasonableness. The Minister’s decision to surrender a person for extradition is entitled to substantial deference: Lake v. Canada, 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 41. This is because the Minister’s decision to surrender a person is largely political in nature and therefore falls at the “extreme legislative end of the continuum of administrative decision-making”: India v. Badesha, 2017 SCC 44, [2017] 2 S.C.R. 127, at para. 39. Therefore, if the Minister considered the relevant facts and reached a reasonable conclusion based on those facts, the decision must be upheld: Lake, at paras. 2, 26, 34, 38, and 41.
[8] With respect to the reasons explaining the conclusions, the Supreme Court stated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 85, that a reasonable decision “is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision.”
[9] That said, the Supreme Court in Lake cautions, at para. 41, that “reasonableness does not require blind submission to the Minister's assessment.” The Minister must also apply the correct legal test and the “Minister's conclusion will not be rational or defensible if he has failed to carry out the proper analysis”: at para. 41.
Issues
[10] The applicant raises three grounds for judicial review: first, that the Minister’s conclusion that surrender was not a violation of s. 7 of the Charter, or unjust or oppressive, was unreasonable; second, that the Minister’s decision not to seek assurances in relation to civil commitment was unreasonable; and third, that the Minister’s decision that surrender did not constitute an unjustifiable violation of s. 6 of the Charter was unreasonable.
Analysis
[11] For the reasons set out below, I am not persuaded by these arguments.
(1) The Minister’s conclusion that surrender was not a violation of s. 7 of the Charter, or unjust or oppressive, was reasonable.
[12] The Minister identified the legal standard for the s. 7 Charter argument to be whether the surrender “would shock the conscience of Canadians”: United States v. Lane, 2017 ONCA 396, 138 O.R. (3d) 167, at para. 85, leave to appeal refused, [2017] S.C.C.A. No. 390, and the principle that refusal to surrender on this basis is available only in very exceptional circumstances: United States v. Akinbobola, 2022 ONCA 29, at para. 18.
[13] The applicant argues that the standard is not necessarily this high, and that a sentence that could be characterized as unjust or oppressive, even if not a violation of s. 7, would be a sufficient basis for declining to surrender.
[14] The respondent contends that there is no merit to the applicant’s claim, and reiterates, as the Supreme Court held in United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, at paras. 67-69, that only circumstances of a “very exceptional nature” will reach the threshold of shocking the conscience of Canadians to justify refusal of surrender and therefore be unjust or oppressive. According to the court in Burns, the “shocks the conscience” terminology might be met, for example, by subjecting an offender to punishments such as “stoning to death individuals taken in adultery” or “lopping off the hands of a thief”: at para. 69. In such circumstances, the punishment is so extreme that it becomes “the controlling issue in the extradition and overwhelms the rest of the analysis”: at para. 69.
[15] The Minister decided that the sentence would not be one that would shock the conscience of Canadians, nor was it one which could be characterized as unjust or oppressive. The Supreme Court stated in Lake that a Minister’s reasons “must make it clear that he considered the individual’s submissions against extradition and must provide some basis for understanding why those submissions were rejected”: at para. 46. The Minister’s decision in this case clearly met this threshold.
[16] The applicant also submits that the Minister’s conclusion that surrender would not be unjust or oppressive is unreasonable because he failed to consider all relevant circumstances, failed to consider them cumulatively, and failed to adequately respond to the applicant’s submissions. In particular, the Minister, according to the applicant, failed to consider his personal circumstances, including that, in relation to the Canadian prosecution for child luring, the applicant immediately waived his Charter rights, and confessed upon being arrested. Moreover, the applicant was in his early 20s when the alleged offences were committed, and he had amassed no additional charges in Canada since finishing his sentence.
[17] I would reject this argument. The Minister clearly was aware of the applicant’s personal circumstances. Unlike in United States v. Leonard, 2012 ONCA 622, 112 O.R. (3d) 496, however, those circumstances did not constitute a significant issue that could have affected the decision to surrender. In Leonard, this court found the Minister acted unreasonably, in part, by failing to address the applicant’s Indigenous status and Gladue sentencing principles properly. Here, there is no similar governing, sentencing principle that was not addressed by the Minister arising from this applicant’s personal circumstances.
[18] The applicant next argues that extradition would result in “split-up” or “piecemeal” prosecutions which, when considered in combination with the applicant’s personal circumstances, the similarity in the offences, and the extreme sentencing disparity, render it impossible for the Minister to conclude that political considerations outweigh the impact of surrender. The only reasonable conclusion, according to the applicant, is that surrender would be unjust or oppressive.
[19] The respondent submits that the applicant’s claim misconstrues the meaning of a piecemeal prosecution. A piecemeal prosecution, the respondent argues, might arise where an accused is subject to different prosecutions in different countries for the same offence or harm to the same victim. That is not the situation here. The Minister stated in his reasons, “[t]he essential character of the two offences is distinct, and they concern different wrongs against two different victims.”
[20] The Minister rejected the applicant’s argument that the extradition amounted to split prosecution over the same crime. The Minister explained that the fact that Mr. Jones’ alleged criminal conduct was committed in a specific time frame, prior to his Canadian prosecution, did not mean that his conduct in relation to each of his victims constituted a single or ongoing transaction. The prosecutions involved different victims and different conduct and circumstances surrounding the commission of the offences. Further, the Minister noted that Pennsylvania Victim 4 endured harms experienced in the U.S., and the Minister accepted the importance of prosecuting the case in the jurisdiction where the harm was done, and the vulnerable victim located.
[21] The Minister relied on Canada (Attorney General) on behalf of the United States of America v. Tyndall, 2021 ABCA 95, in which the Court of Appeal of Alberta addressed concerns with respect to overlapping aspects of prosecutions in the U.S. and Canada for criminal conduct involving child luring over the internet and upheld a surrender in analogous circumstances.
[22] I see no basis on which to disturb the Minister’s conclusion on this issue, which is entitled to deference.
[23] Finally, the applicant argues that the significant disparity in sentences between Canada and the U.S. constitutes a ground on which surrender should have been declined as unjust or oppressive.
[24] The U.S. indictment charges Mr. Jones with committing the offences of sexual exploitation of children, which carries a minimum penalty of 15 years’ imprisonment and a maximum penalty of 30 years’ imprisonment; and extortion by means of interstate communications, which carries a maximum penalty of 2 years’ imprisonment.
[25] The Minister stated that U.S. authorities advised him that Mr. Jones’ potential sentence will depend on whether he decides to plead guilty, or is found guilty after trial, to one or more of the counts charged. If Mr. Jones is found guilty at trial, he will be sentenced by the presiding judge who has the discretion to determine the appropriate sentence. The Minister noted that the sentencing judge also has the discretion to impose a sentence consecutively or concurrently.
[26] The Minister emphasized the variability of the sentencing process in the U.S. depending on whether Mr. Jones decided to plead guilty, or to cooperate with the American authorities in related investigations.
[27] The Minister acknowledged that the disparity in potential sentencing in this case was significant – a range of 18 months to 6 years if convicted in Canada (depending on which counsel’s suggested range were accepted) to a minimum sentence of 15 years if convicted in the U.S., with a maximum of 30 years imprisonment. The Minister, having acknowledged the disparity, concluded, “[n]evertheless, with the exception of death penalty cases, nothing in the Treaty allows the Minister to refuse surrender based on sentencing disparity, including a large one.”
[28] A sentence is not unjust or oppressive simply because the applicant would have received a lesser sentence had he been prosecuted domestically: U.S.A. v. Ranga, 2012 BCCA 82, [2012] B.C.W.L.D. 5379, at para. 9. In United States v. Viscomi, 2019 ONCA 490, 146 O.R. (3d) 145, at para. 46, this court stated that “the determination of whether a potential sentence is so severe as to be fundamentally unjust, is not established by a simple quantitative comparison of the relative lengths of foreign and domestic sentence ranges.”
[29] The applicant has provided no case law where the length of the foreign sentence was found to constitute such an extreme punishment that it infringed s. 7 or that it properly should be characterized as unjust or oppressive.
[30] The Minister’s rejection of the applicant’s claim with respect to the disparity of sentence was reasonable.
[31] In my view, this ground of judicial review fails.
(2) The decision not to seek assurances regarding civil commitment was reasonable
[32] The applicant requested that, if surrendered, the Minister seek assurances that the U.S. authorities would not pursue civil commitment in the applicant’s case. The Minister reviewed the applicant’s position in detail, outlined additional information obtained from U.S. authorities on the civil commitment process, and concluded that they did not warrant seeking specific assurances regarding the application of that process to the applicant. He explained:
In the event that Mr. Jones’ circumstances, post-surrender, do give rise to federal civil commitment proceedings, I am satisfied that there are adequate safeguards in the United States’ federal civil commitment process that would allow him to oppose a finding that he is a “sexually dangerous person.” The statutory scheme in place is robust and ensures proper oversight and recourse for persons who may be subjected to those laws. This includes the right to legal representation at the district court hearing that would consider the issue as well as the ability to testify, advance evidence, and cross-examine witnesses. The decision of the district court to order civil commitment can also be appealed.
Moreover, where a person is found to be a “sexually dangerous person” and is confined in an appropriate treatment facility, the director of that facility is required to submit annual reports on the person’s mental condition and to make recommendations on whether ongoing commitment is necessary. A civilly committed person may, every six months, apply to the relevant district court to be discharged.
[33] The Minister also dealt with the possibility of state (as opposed to federal) initiated civil commitment, and stated he was satisfied that this eventuality was not a risk, as no such state-initiated process had ever occurred in the past against a person in federal custody.
[34] The applicant argues that the Minister erred by failing to reconcile why he sought an assurance against federal civil commitment in United States v. Hillis, 2021 ONCA 447, 156 O.R. (3d) 525, but declined to do so in the applicant’s case. According to the applicant, where the Minister previously sought assurances to ensure the justness and constitutionality of a Canadian citizen’s surrender, he should provide an explanation for why he declined to obtain the same assurances for another citizen in similar circumstances.
[35] This argument was raised with the Minister as well. The Minister expressly distinguished Hillis, explaining that, in Hillis, the subject of the extradition application was exposed to state civil commitment under Minnesota’s civil commitment regime, a regime criticized for its serious gaps in due process and insufficient checks and balances for persons who may be subject to the regime.
[36] The applicant notes that Hillis dealt not only with state civil commitment but also with federal civil commitment. The respondent highlights that, while it is true that the analysis in Hillis focuses on the Minnesota civil commitment process, the federal process was added to the assurance sought in an abundance of caution, rather than in relation to any specific concerns with the federal process.
[37] The respondent emphasizes that, as this court reiterated in Hillis, interference with the Minister’s exercise of discretion in this principally political arena is limited to “exceptional cases of real substance”: at para. 85. The respondent contends that there is nothing exceptional about the Minister ordering surrender without an assurance against the remote possibility that the applicant might face civil commitment proceedings in the United States, and that appellate courts have repeatedly upheld surrender orders where the Minister has declined to seek such an assurance (relying on Hillis, at para. 100).
[38] I do not view the different approach taken by the Minister in Hillis and in this case as problematic.
[39] This court affirmed in Viscomi, at para. 55, that the Minister’s reliance on satisfaction with the procedural protections afforded a person subject to the civil commitment process in the U.S., and the similarity of civil commitment to involuntary committal under Canadian mental health laws, were sufficient to ground the Minister’s conclusion that the possibility of civil commitment did not violate s. 7 of the Charter.
[40] I am not persuaded that the Minister acted unreasonably in exercising his discretion, after careful analysis, not to seek specific assurances from the U.S. authorities in relation to civil commitment.
[41] The main basis for the Minister’s decision was that procedural safeguards apply in the U.S. federal context, and that a similar regime exists in Canada for commitment. The applicant has not explained why the Minister’s conclusions in relation to civil commitment are unreasonable or why the principle set out in Viscomi, reproduced above, would not apply here. The fact that the Minister in a different context did seek such an assurance (principally motivated by a specific concern about a specific state’s civil commitment scheme) is not a basis for interference with the Minister’s discretion in this case.
[42] In my view, this ground of judicial review fails.
(3) The applicant’s s. 6 rights were not unjustifiably violated
[43] The applicant’s third ground for the judicial review relates to the violation of his s. 6 rights. In particular, the right of Canadian citizens to remain in Canada under s. 6(1) of the Charter, which provides: “[e]very citizen of Canada has the right to enter, remain in and leave Canada.”
[44] In United States v. Cotroni, [1989] 1 S.C.R. 1469, the Supreme Court determined that extradition is a prima facie limitation on the right to remain in Canada. However, the court also observed that extradition will be generally warranted under s. 1 of the Charter as a reasonable limitation of the right to remain in Canada, given the pressing and substantial objectives of extradition: “(1) protecting the public against crime through its investigation; (2) bringing fugitives to justice for the proper determination of their criminal liability; (3) ensuring, through international cooperation, that national boundaries do not serve as a means of escape from the rule of law”: Akinbobola, at para. 9, citing Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609, at para. 10.
[45] In this application, the Minister concluded that certain factors “weigh[ed] significantly” in favour of surrender, namely that the U.S. has a greater interest in prosecuting the applicant; the minor victim alleged to be exploited over an extended period of time resides in the U.S.; the impact of the applicant’s alleged conduct was felt most strongly in the U.S.; the U.S. has a more comprehensive case pertaining to the applicant’s alleged conduct, and the investigation involving Victim 4 has been undertaken primarily by the Federal Bureau of Investigation; in addition to Victim 4, the victim’s mother and key civilian witnesses all reside in the U.S.; and the one Canadian police officer whose testimony may form part of the U.S. prosecution has given evidence already in possession of the U.S. authorities. The Minister also confirmed that no Canadian prosecutorial agency has expressed interest in prosecuting the conduct for which extradition is sought.
[46] With respect to the applicant’s undertaking to plead guilty if charged for criminal conduct in relation to Victim 4 in Canada, the Minister responded that, “[i]t is my view that Mr. Jones’ request to plead guilty in Canada should be denied. Canada’s commitment to fighting crime involves not only prosecuting alleged perpetrators in Canada, but also ensuring Canada does not become a safe haven for those, including Canadians, who victimize persons abroad from within Canada.” The Minister emphasized the importance of this point in the context of internet-based criminal conduct.
[47] The Minister concluded that, in all of the circumstances of the case, it would not be an unjustifiable breach of the applicant’s s. 6 Charter rights to surrender him to face prosecution in the U.S.
[48] According to the applicant, in his s. 6 analysis, the Minister made numerous legal errors: he created a false dichotomy between surrender and the applicant walking free; applied the wrong test to considering sentencing disparity; failed to respond to an important aspect of the applicant’s submissions; and dismissed the applicant’s undertaking to plead guilty for erroneous and/or unfair reasons.
[49] The Minister concluded that surrender did not constitute an unjustifiable breach of s. 6 because it would not shock the conscience of Canadians. The applicant takes issue with the reference to the threshold for a s. 7 violation as part of the s. 6 Cotroni analysis. The applicant argues that the Cotroni analysis is concerned with whether domestic prosecution would be an equally effective or desirable outcome as extradition, not with whether surrender would shock the conscience of Canadians, nor whether surrender would be unjust or oppressive. By conflating the tests to consider sentencing disparity under s. 7 of the Charter and s. 44(1)(a) of the Extradition Act, the Minister erred in dismissing sentencing disparity as a consideration under s. 6 altogether.
[50] The applicant also argues that the Minister erred in failing to accept his undertaking to plead guilty to a Canadian prosecution of criminal conduct in relation to Victim 4, which would best serve the public interest considerations of costs, delays, and inconvenience to witnesses (particularly considering the lack of incentive to plead guilty in the U.S., given the likely sentence).
[51] Again, I am not persuaded by these arguments.
[52] As stated above, the Supreme Court has confirmed that the prima facie infringement of s. 6 that extradition entails can generally be justified under s. 1. The determination of whether it is justified requires the Minister to weigh the factors favouring domestic prosecution against the interest of the requesting state in prosecuting. This means that the Minister’s assessment rests largely on his political decision of whether Canada should defer to the interests of the requesting state: see Lake, at paras. 30, 37.
[53] It was open to the Minister to conclude that, short of a situation where surrender was unjust or oppressive or shocked the conscience of Canadians, the surrender did not constitute an unjustifiable breach of s. 6. This conclusion, in the circumstances of this case, was not unreasonable. Similarly, the Minister’s rejection of the applicant’s undertaking to plead guilty to the child luring charge in relation to Victim 4, if a prosecution was initiated in Canada, also was reasonable, especially where no Canadian agency had expressed any interest in such a prosecution. The applicant also could point to no other case where the rejection of such an undertaking was found to be unreasonable.
[54] In summary, the Minister thoroughly considered the applicant’s s. 6 submissions, consulted with his own officials, as well as the Ministry of the Attorney General of Ontario, to discuss prosecuting the applicant in Canada, considered the evidence before him, and made inquiries to the U.S. Department of Justice about the treatment of this case. The Minister reviewed the applicable law, balanced the relevant factors, and came to the conclusion that extradition would not constitute an unjustified violation of s. 6(1) of the Charter.
[55] I see no basis to interfere with this conclusion and would reject this ground of judicial review.
Disposition
[56] For these reasons, I do not see a basis for concluding that the Minister’s order or reasons were unreasonable. I would dismiss the application.
Released: January 29, 2024 “K.M.v.R.” “L. Sossin J.A.” “I agree. K. van Rensburg J.A.” “I agree. P.J. Monahan J.A.”