Idziak v. Canada (Minister of Justice), 1992 CanLII 51 (SCC), [1992] 3 SCR 631

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631

Boniface Robert Idziak Appellant

v.

The Minister of Justice,

The Honourable Kim Campbell,

and the Superintendent of the Sault

Ste. Marie Jail, Jude Lake Respondents

Indexed as: Idziak v. Canada (Minister of Justice)

File No.: 21845.

1992: May 25; 1992: November 19.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Cory, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for ontario

Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Extradition ‑‑ Application to Minister to exercise discretion not to extradite ‑‑ Internal memorandum advising minister ‑‑ Minister not informing fugitive of memorandum ‑‑ Whether s. 7 right to fundamental justice infringed -- Canadian Charter of Rights and Freedoms, s. 7.

Prerogative writs ‑‑ Habeas corpus with certiorari in aid ‑‑ Fugitive committed for extradition ‑‑ Whether writ lies before actual process of extradition commences.

The U.S. sought to extradite appellant to face charges in Michigan of participating in a conspiracy to obtain funds from investors through fraudulent representations regarding two Canadian corporations. Appellant was arrested on a warrant of apprehension in 1987 and a warrant for his committal was issued after the extradition hearing. The Supreme Court of Ontario allowed in part his application to quash the warrant of committal. The prosecution appealed and appellant cross‑appealed on the remaining charges on which the warrant of committal was outstanding. Both the appeal and the cross‑appeal were abandoned.

Appellant sought, under s. 25 of the Extradition Act, to have the Minister of Justice refuse to exercise the Minister's discretionary authority to surrender him to the U.S. authorities. The minister, however, advised him that there were no grounds justifying a refusal to surrender him and signed the warrant of surrender.

Counsel for appellant then learned of an internal memorandum which the Minister had reviewed before making his decision. Appellant requested but never received a copy. He then commenced these proceedings by applying to the Supreme Court of Ontario for a writ of habeas corpus with certiorari in aid to set aside the warrant of surrender on the ground that the minister had denied his rights to fundamental justice guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms. The application was dismissed as was the appeal to the Court of Appeal. This appeal is from the decision of the Court of Appeal.

At issue here are: (1) whether this Court has jurisdiction to hear the appeal, and (2) if so, whether the Minister breached the principles of fundamental justice guaranteed by s. 7 of the Charter in reaching the decision not to refuse to surrender appellant. Leave to appeal had been restricted to the second issue.

Held: The appeal should be dismissed.

Per L'Heureux‑Dubé, Cory and Iacobucci JJ.: When an unrestricted leave to appeal is granted, a respondent may advance any argument supporting the judgment below subject to the sole restriction that it does not require additional evidence to be adduced at trial. Leave to appeal here was granted on only one ground, however, and the Court thereby limited its own jurisdiction. While the grounds of appeal should not be expanded beyond the ground set out in the order, the Court nonetheless should always have the capacity to consider its own jurisdiction and should never be placed in a position requiring it to rule on a matter in which it did not have jurisdiction. An issue as to the Court's jurisdiction is the exception to the rule of limited jurisdiction.

Ontario's superior courts have always had jurisdiction to issue a writ of habeas corpus. The availability of certiorari in aid, recognized by the statute, simply ensures that the reviewing court will have access to the record of the proceedings concerning the detention of the applicant.

The rules dealing with habeas corpus should always be given a generous and flexible interpretation. An individual can properly invoke habeas corpus as a means of challenging increased or secondary detention even though success would not result in the release of the prisoner from a lawful primary detention. Here, the execution of the warrant of surrender would result in appellant's transfer to the custody of the requesting state. This important and far reaching restriction on his residual liberty constitutes a form of secondary detention empowering the superior court to consider the application for the issuance of habeas corpus. To require appellant to wait until the Canadian authorities actually initiated the surrender phase by confining him for the purposes of transfer to the United States before applying for habeas corpus would place an unfair and intolerable burden upon him and would be contrary to the nature of the remedy habeas corpus is designed to provide. The time constraints alone would place the remedy beyond reach.

The provincial superior courts and the Federal Court share concurrent jurisdiction to hear all habeas corpus applications other than those specified in s. 17(6) of the Federal Court Act. The Federal Court Act does not remove the historic and long standing jurisdiction of provincial superior courts to hear an application for a writ of habeas corpus. To remove that jurisdiction from the superior courts would require clear and direct statutory language.

The appellant was not required to proceed in the Federal Court in spite of any concurrency of jurisdiction. Parliament did not provide a comprehensive statutory scheme of review, tailored to the extradition process.

This Court could appropriately consider appellant's allegation of a reasonable apprehension of bias based upon the statutory scheme. Ample notice was given because it was raised in both the application for leave to appeal and appellant's factum. Respondents were given the opportunity to file any additional evidence and have suffered no real prejudice by the loss of the opportunity to respond to this claim in the courts below.

The decision of the Minister to issue a warrant of surrender pursuant to s. 25 of the Extradition Act must be exercised in accordance with the "principles of fundamental justice". This phrase includes the right to be heard by an unbiased decision-maker. At the adjudicative end of the decision-making spectrum, the appropriate test is: could an informed bystander reasonably perceive bias on the part of the adjudicator? At the legislative end, the test is: has the decision‑maker pre‑judged the matter to such an extent that any representations to the contrary would be futile?

The extradition process has two distinct phases. The first encompasses the court proceedings which determine whether a factual and legal basis for extradition exists. It is judicial in its nature and warrants the application of the full panoply of procedural safeguards. If that process results in the issuance of a warrant of committal, then the second phase is activated. When the Minister of Justice exercises his or her discretion in determining whether to issue a warrant of surrender, no lis is in existence. The decision‑making process is political in nature and is at the extreme legislative end of the continuum of administrative decision‑making. The Minister must weigh the fugitive's representations against Canada's international treaty obligations. This is not a case of a single official's acting as both judge and prosecutor in the same case.

The Minister acted fairly in considering the issuance of the writ of surrender. There was no evidence of improper influence on the part of anyone involved in prosecuting the extradition proceedings, no evidence of the minister's pre‑judging the matter, and no evidence of the minister's having an impermissible bias against appellant.

Solicitor-client privilege protected the memorandum prepared by the Minister's staff. It contained nothing that was not known to the appellant apart from the recommendation and was not evidence for use in an adversary proceeding. Failure to disclose did not constitute unfairness.

Per Lamer C.J. and McLachlin J.: Apart from the issue of grounding the confidentiality of the document on solicitor‑client privilege, the reasons of Cory J. were concurred with. That issue was specifically left open.

Per La Forest J.: The reasons of Cory J. were agreed with. In considering the issue of surrender, the minister was engaged in making a policy decision rather in the nature of an act of clemency and was entitled to consider the views of her officials who were versed in the matter. She was dealing with a policy matter wholly within her discretion and there was no reason why she should be compelled to reveal these views. A decision as to whether the memorandum fell with the solicitor-client privilege was therefore unnecessary.

Per Sopinka J.: The reasons of Cory J. were agreed with, subject to the reservation expressed by Lamer C.J.

Cases Cited

By Cory J.

Applied: United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469; distinguished: R. v. Gamble, 1988 CanLII 15 (SCC), [1988] 2 S.C.R. 595; R. v. Miller, 1985 CanLII 22 (SCC), [1985] 2 S.C.R. 613; Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643; Morin v. National Special Handling Unit Review Committee, 1985 CanLII 24 (SCC), [1985] 2 S.C.R. 662; Pringle v. Fraser, 1972 CanLII 14 (SCC), [1972] S.C.R. 821; Re Peiroo and Minister of Employment and Immigration (1989), 1989 CanLII 184 (ON CA), 69 O.R. (2d) 253; Steele v. Mountain Institution, 1990 CanLII 50 (SCC), [1990] 2 S.C.R. 1385; Radulesco v. Canadian Human Rights Commission, 1984 CanLII 120 (SCC), [1984] 2 S.C.R. 407; considered: Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500; Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177; R. v. Lippé, 1990 CanLII 18 (SCC), [1991] 2 S.C.R. 114; Kindler v. Canada (Minister of Justice), 1991 CanLII 78 (SCC), [1991] 2 S.C.R. 779; referred to: In re Isbell, 1929 CanLII 66 (SCC), [1930] S.C.R. 62; Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536; Perka v. The Queen, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232; R. v. Wigman, 1985 CanLII 1 (SCC), [1987] 1 S.C.R. 246; R. v. Warner, 1960 CanLII 85 (SCC), [1961] S.C.R. 144; Lizotte v. The King, 1950 CanLII 48 (SCC), [1951] S.C.R. 115; Canadian Dredge & Dock Co. v. The Queen, 1985 CanLII 32 (SCC), [1985] 1 S.C.R. 662; Dumas v. Leclerc Institute, 1986 CanLII 38 (SCC), [1986] 2 S.C.R. 459; Masella v. Langlais, 1955 CanLII 77 (SCC), [1955] S.C.R. 263; Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309; Chiarelli v. Canada (Minister of Employment and Immigration), 1992 CanLII 87 (SCC), [1992] 1 S.C.R. 711; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623; Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821.

By La Forest J.

Referred to: Attorney General of Canada v. Inuit Tapirisat of Canada, 1980 CanLII 21 (SCC), [1980] 2 S.C.R. 735.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 7.

Criminal Code, R.S.C. 1970, c. C‑34, s. 423(2)(a).

Department of Justice Act, R.S.C., 1985, c. J‑2, ss. 2(1), (2), 4, 5.

Extradition Act, R.S.C., 1985, c. E‑23, s. 25.

Federal Court Act, R.S.C., 1985, c. F‑7, ss. 17(6)(now part of s. 18 by An Act to Amend the Federal Court Act, the Crown Liability Act, the Supreme Court Act and other acts in consequence thereof, S.C. 1990, c. 8), 18.

Habeas Corpus Act, R.S.O. 1980, c. 193 (am. S.O. 1984, c. 11, s. 182), ss. 1(1), 5.

Immigration Act, R.S.C. 1952, c. 325 (later R.S.C. 1970, c. I‑2).

Parole Act, R.S.C., 1985, c. P‑2.

Securities Act, R.S.O. 1980, c. C‑466.

Authors Cited

La Forest, Anne Warner. La Forest's Extradition to and from Canada, 3rd ed. Aurora: Canada Law Book, 1991.

APPEAL from a judgment of the Ontario Court of Appeal (1990), 1990 CanLII 6623 (ON CA), 67 D.L.R. (4th) 639, 48 C.R.R. 187, dismissing an appeal from a judgment of Doherty J. (1989), 1989 CanLII 4086 (ON SC), 70 O.R. (2d) 498, 63 D.L.R. (4th) 267, 53 C.C.C. (3d) 464, 48 C.R.R. 179 -- made after ruling that habeas corpus lies: (1989), 1989 CanLII 7186 (ON SC), 53 C.C.C. (3d) 385, 48 C.R.R. 165 -- dismissing an application for habeas corpus from an order of Warren Dist. Ct. J. committing accused for extradition. Appeal dismissed.

Henry S. Brown, Q.C., for the appellant.

J. E. Thompson, Q.C. and D. D. Graham Reynolds, for the respondents.

The following are the reasons delivered by

//Lamer C.J.//

Lamer C.J. -- I concur with the reasons of my colleague Justice Cory, except with respect to the issue of the solicitor-client privilege. While it may well be that the nature of the relationship involved here makes this document confidential, I would not want to decide in this case whether the confidentiality is grounded on the solicitor-client privilege. Given the conclusion that s. 7 of the Canadian Charter of Rights and Freedoms has not been violated, we do not need to deal with this issue in this case.

The following are the reasons delivered by

//La Forest J.//

La Forest J. -- I fully agree with Justice Cory including (apart from some reservation as to nomenclature) his reasons regarding the Minister's privilege to refuse to reveal a confidential document. In my view, in considering the issue of surrender in the present case, the Minister was engaged in making a policy decision rather in the nature of an act of clemency. In making a decision of this kind, the Minister is entitled to consider the views of her officials who are versed in the matter. I see no reason why she should be compelled to reveal these views. She was dealing with a policy matter wholly within her discretion; see Attorney General of Canada v. Inuit Tapirisat of Canada, 1980 CanLII 21 (SCC), [1980] 2 S.C.R. 735, at pp. 753-54. It is thus unnecessary to hold that the Minister's privilege to keep the memorandum confidential falls within the solicitor-client privilege, and I prefer not to do so because I have not weighed the full implications of so holding.

The judgment of L'Heureux-Dubé, Cory and Iacobucci JJ. was delivered by

//Cory J.//

Cory J. --

Factual Background

There are two issues that are raised on this appeal.

First, does this Court have jurisdiction to hear the appeal?

Secondly, if the necessary jurisdiction does exist, then did the Minister of Justice breach the principles of fundamental justice guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms in reaching the decision to surrender Mr. Idziak?

The appellant is a 67-year-old American citizen. He is a prospector presently residing in Blind River with his wife of 31 years. He has lived in Canada since 1956 and acquired landed immigrant status in 1962. In 1981, Mr. Idziak was charged with conspiring to commit fraud in excess of $200, theft over $200, and contravening Ontario's Securities Act, R.S.O. 1980, c. C-466. In 1982, he pleaded guilty to two counts of conspiracy contrary to the provisions of what was then s. 423(2)(a) of the Criminal Code, R.S.C. 1970, c. C-34. He was sentenced to 60 days on each count to be served concurrently and the Crown withdrew the remaining charges.

On October 5, 1983, Mr. Idziak was indicted in the State of Michigan on 41 counts alleging that he had participated in a conspiracy to obtain funds from investors in Michigan through fraudulent representations regarding two Canadian corporations. The United States of America sought his extradition on these counts. In 1987, Mr. Idziak was arrested on a warrant of apprehension and brought before the District Court of Ontario for an extradition hearing. Agents of the Attorney General appeared as prosecutors acting on behalf of the United States. Following the hearing, a warrant for his committal was issued on January 26, 1988. Mr. Idziak then applied to the Supreme Court of Ontario seeking to quash the warrant of committal. He was in part successful on this application. The prosecution appealed the order and Mr. Idziak cross-appealed on the remaining charges on which the warrant of committal was outstanding. Both the appeal and the cross-appeal were abandoned.

Mr. Idziak then applied to the then Minister of Justice, the Honourable Doug Lewis, pursuant to s. 25 of the Extradition Act, R.S.C., 1985, c. E-23, seeking to have the Minister refuse to exercise his discretionary authority to surrender Mr. Idziak to the U.S. authorities. On May 10, 1989, the Minister of Justice wrote to Mr. Idziak advising him that no grounds existed to justify a refusal to surrender him. The Minister then signed the warrant of surrender.

On May 29, 1989, counsel for Mr. Idziak learned for the first time of the existence of an internal memorandum submitted to the Minister of Justice dealing with the case. Before making his decision the Minister had quite naturally reviewed this document. A copy of it had never been delivered to Mr. Idziak or his counsel although a request was made for it. On July 5, 1989, Mr. Idziak commenced these proceedings by applying to the Supreme Court of Ontario for a writ of habeas corpus with certiorari in aid to set aside the warrant of surrender on the grounds that the Minister had denied his rights guaranteed by s. 7 of the Charter. The application was dismissed as was the appeal to the Court of Appeal. This appeal is from the decision of the Court of Appeal.

Relevant Legislation

Canadian Charter of Rights and Freedoms

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Department of Justice Act, R.S.C., 1985, c. J-2

2.(1) There is hereby established a department of the Government of Canada called the Department of Justice over which the Minister of Justice appointed by commission under the Great Seal shall preside.

(2) The Minister is ex officio Her Majesty's Attorney General of Canada, holds office during pleasure and has the management and direction of the Department.

4. The Minister is the official legal adviser of the Governor General and the legal member of the Queen's Privy Council for Canada and shall

(a) see that the administration of public affairs is in accordance with law;

(b) have the superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces;

(c) advise upon the legislative Acts and proceedings of each of the legislatures of the provinces of Canada, and generally advise the Crown on all matters of law referred to the Minister by the Crown; and

(d) carry out such other duties as are assigned by the Governor in Council to the Minister.

5. The Attorney General of Canada

(a) is entrusted with the powers and charged with the duties that belong to the office of the Attorney General of England by law or usage, in so far as those powers and duties are applicable to Canada, and also with the powers and duties that, by the laws of the several provinces, belonged to the office of attorney general of each province up to the time when the Constitution Act, 1867, came into effect, in so far as those laws under the provisions of the said Act are to be administered and carried into effect by the Government of Canada;

(b) shall advise the heads of the several departments of the Government on all matters of law connected with such departments;

(c) is charged with the settlement and approval of all instruments issued under the Great Seal;

(d) shall have the regulation and conduct of all litigation for or against the Crown or any department, in respect of any subject within the authority or jurisdiction of Canada; and

(e) shall carry out such other duties as are assigned by the Governor in Council to the Attorney General of Canada.

Extradition Act, R.S.C., 1985, c. E-23

25. Subject to this Part, the Minister of Justice, on the requisition of the foreign state, may, under his hand and seal, order a fugitive who has been committed for surrender to be surrendered to the person or persons who are, in the Minister's opinion, duly authorized to receive the fugitive in the name and on behalf of the foreign state, and the fugitive shall be so surrendered accordingly.

Earlier Proceedings

The Minister of Justice

The Minister wrote to Mr. Idziak and assured him that he had considered all his submissions with care. He went on to explain that, in light of the importance of Canada's international obligations under extradition treaties, the refusal to surrender a fugitive could only occur in compelling cases, related either to specific exceptions in the treaty or to situations where it was required by the principles of fundamental justice guaranteed in the Constitution. The Minister was of the view that neither of these special exceptions pertained in Mr. Idziak's case.

Supreme Court of Ontario

Doherty J. (September 1, 1989 hearing re: jurisdiction) (1989), 1989 CanLII 7186 (ON SC), 53 C.C.C. (3d) 385, 48 C.R.R. 165

Counsel for the Minister of Justice challenged the jurisdiction of the Supreme Court of Ontario to hear the application for a writ of habeas corpus against the Minister's warrant of surrender. It was submitted that the writ of habeas corpus was an inappropriate remedy because Mr. Idziak was detained pursuant to the lawful warrant of committal and not the impugned warrant of surrender. Further it was submitted that the applicant should have sought judicial review of the Minister's decision by means of the procedures set out in the Federal Court Act, R.S.C., 1985, c. F-7.

Doherty J. recognized that Mr. Idziak was not presently in detention as a result of the impugned warrant of surrender. He held however that imminent custody provides a sufficient basis for invoking the habeas corpus remedy. He cited in support of his conclusion the decision In re Isbell, 1929 CanLII 66 (SCC), [1930] S.C.R. 62. As well he relied on R. v. Gamble, 1988 CanLII 15 (SCC), [1988] 2 S.C.R. 595, for his position that the courts should refrain from applying technical rules to obstruct access to relief under the Charter.

Doherty J. also rejected the Minister's submission that Mr. Idziak should have sought the review in the Federal Court, Trial Division, pursuant to s. 18 of the Federal Court Act. He held that, in light of its institutional expertise, a provincial superior court was the proper forum for an application for a writ of habeas corpus in the extradition process. He therefore chose to exercise his jurisdiction in deference to the choice of forum made by the applicant.

Doherty J. (October 30, 1989 hearing re: application for a writ of habeas corpus) (1989), 1989 CanLII 4086 (ON SC), 70 O.R. (2d) 498, 63 D.L.R. (4th) 267, 53 C.C.C. (3d) 464, 48 C.R.R. 179

Two positions were put forward on behalf of Mr. Idziak. First, it was said that the procedure followed by the Minister in deciding to surrender the applicant contravened the principles of fundamental justice guaranteed by s. 7 of the Charter. Second, it was argued that even if the procedure survives constitutional scrutiny the decision to surrender the appellant breached the substantive component of s. 7.

Doherty J. in his careful reasons held that s. 25 of the Extradition Act merely empowers a Minister of Justice to consider the existence of exceptional circumstances which would merit a refusal to issue an order of surrender. He noted that a decision made pursuant to s. 25 must, to a large extent, involve the weighing of policy concerns rather than the adjudication of a legal issue. In those circumstances, he concluded that the appropriate standard of fairness required that the applicant should have sufficient access to the decision-maker to bring forward any argument or fact which a fair-minded person would need to reach a rational conclusion.

The applicant sought the disclosure of a confidential memorandum given to the Minister by a member of the Department of Justice. Doherty J. had earlier seen and reviewed the document and ruled that it was protected by solicitor/client privilege. He went on to reject the applicant's claim that either the use or failure to disclose this confidential document compromised procedural or substantive fairness.

Doherty J. observed that this Court in Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536, had recognized that s. 7 of the Charter imposes a constitutional standard on the exercise of the discretion granted to the Minister of Justice by s. 25 of the Extradition Act. However, he held that the humanitarian considerations put forward by Mr. Idziak did not substantiate a claim of exceptional circumstances. As well, he discounted the relevance of Mr. Idziak's prior conviction on factually related, but not identical, offences in Canada. Lastly, he dismissed the argument that delay by American authorities should prevent the surrender; he noted that such matters should normally be left to the courts of the requesting state. In the result, Doherty J. concluded that both the manner in which the Minister reached his decision and the decision itself accorded with principles of fundamental justice; he therefore dismissed the application for a writ of habeas corpus against the warrant of surrender.

Ontario Court of Appeal (1990), 1990 CanLII 6623 (ON CA), 67 D.L.R. (4th) 639, 48 C.R.R. 187

The Court of Appeal affirmed the decision and the reasoning of Doherty J. on the substantive issue. It did not find it necessary to decide the jurisdictional issue.

Analysis

Jurisdiction

Is It Open to the Respondents to Raise the Issue of Jurisdiction?

The general rule as to the scope of this Court's jurisdiction in hearing appeals seems clear. When an unrestricted leave to appeal is granted, a respondent may advance any argument which would support the judgment below. This is subject to the sole restriction that the argument would not have required additional evidence to be adduced at trial. See Perka v. The Queen, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232, and R. v. Wigman, 1985 CanLII 1 (SCC), [1987] 1 S.C.R. 246. However, in the case at bar, leave to appeal was granted on but one ground. That ground, as framed by counsel for Mr. Idziak, was in this form:

1. The Court of Appeal for Ontario erred in holding that the Applicant's rights under section 7 of the Canadian Charter of Rights and Freedoms was [sic] not violated when the Attorney General of Canada exercised his discretion to surrender the Applicant to the U.S. authorities in accordance with the Extradition Act and the extradition treaty.

By its order, the Court limited the scope of the appeal to this sole ground and thus limited its own jurisdiction. In these circumstances, the grounds of appeal should not be expanded beyond the ground set out in the order. On this point see R. v. Wigman, supra, at p. 258, R. v. Warner, 1960 CanLII 85 (SCC), [1961] S.C.R. 144, at p. 151, Lizotte v. The King, 1950 CanLII 48 (SCC), [1951] S.C.R. 115, at p. 133, and Canadian Dredge & Dock Co. v. The Queen, 1985 CanLII 32 (SCC), [1985] 1 S.C.R. 662, at p. 671.

Nonetheless, the Court should always have the capacity to consider its own jurisdiction. It should never be placed in a position that would require the Court to rule on a matter in which it did not have jurisdiction. That would offend the rule of law underlying the judicial system that, in the absence of the requisite jurisdiction, a court has no authority to hear a case. It follows that an issue as to the Court's jurisdiction must be the exception to the rule of limited jurisdiction pronounced in Wigman, supra. On this basis the respondents' submissions on jurisdiction can be considered.

In this case, the material contained in the record will suffice to resolve the jurisdictional issue. It is true the respondents should have advanced the jurisdictional argument in response to Mr. Idziak's application for leave and should not have delayed in raising the issue until shortly before the hearing. Nonetheless, the issue was argued on the original motion. Doherty J. carefully considered the issue and gave comprehensive reasons for his conclusion that he had jurisdiction to issue the writ of habeas corpus. As a result, no evidentiary problem is raised by considering the question at this stage. As well, the appellant was granted an opportunity to submit further written argument on the question.

Is the Writ of Habeas Corpus a Proper Remedy for the Appellant?

The writ of habeas corpus is steeped in history and was one of the earliest means employed by free subjects to guarantee their liberty. It has for centuries been a weapon in the war against the tyranny of wrongful imprisonment. The remedy has been guaranteed by statute in the United Kingdom since the 17th century. At the time of this application, the governing statute in Ontario was the Habeas Corpus Act, R.S.O. 1980, c. 193, as amended S.O. 1984, c. 11, s. 182 (now with minor revisions, R.S.O. 1990, c. H.1). The relevant sections (ss. 1 and 5) provide:

1.--(1) Where a person, other than a person imprisoned for debt, or by process in any action, or by the judgment, conviction or order of the Supreme Court, District Court or other court of record is confined or restrained of his liberty, a judge of the Supreme Court, upon complaint made by or on behalf of the person so confined or restrained, if it appears by affidavit that there is reasonable and probable ground for the complaint, shall award a writ of habeas corpus ad subjiciendum directed to the person in whose custody or power the person so confined or restrained is, returnable immediately before the judge so awarding the writ, or before any judge of the Supreme Court.

5. Where a writ of habeas corpus is issued under the authority of this Act or otherwise, the court or judge may direct the issue of a writ of certiorari directed to the person by whom or by whose authority any person is confined or restrained of his liberty, or other person having his custody or control, requiring him to certify and return to the court or judge as by the writ may be provided, all the evidence, depositions, conviction and all proceedings had or taken, touching or concerning such confinement or restraint of liberty.

The superior courts of Ontario have always possessed the jurisdiction to issue a writ of habeas corpus in order to obtain the release of a person held in detention. The availability of certiorari in aid, recognized by the statute, simply ensures that the reviewing court will have access to the record of the proceedings concerning the detention of the applicant.

The respondents contended that the writ does not lie on the facts of this case. It was pointed out that Mr. Idziak is currently subject to a warrant of committal issued by the Extradition Court. That warrant has survived appellate review since both the applicant and the prosecuting agent acting on behalf of the United States abandoned their appeals from the District Court Judge. It was argued that Mr. Idziak cannot now challenge the legitimacy of his continued detention pursuant to that warrant of committal. Canadian authorities now hold Mr. Idziak pursuant to that valid, existing warrant of committal even though they may only confine him for the purpose of transporting him to American officials pursuant to a warrant of surrender. Thus, the respondents argued an application for a writ of habeas corpus was an inappropriate means of attacking the Minister's decision since Mr. Idziak's detention remained lawful.

The position taken by the respondents is unduly restrictive. The rules dealing with the historic writ of habeas corpus should always be given a generous and flexible interpretation. Decisions of this Court have enforced and emphasized this approach. A trilogy of cases dealt with the confinement of prisoners in special handling units. In all three, the Court recognized that an individual could properly invoke habeas corpus as a means of challenging increased or secondary detention even though success would not result in the release of the prisoner from a lawful primary detention. See R. v. Miller, 1985 CanLII 22 (SCC), [1985] 2 S.C.R. 613, Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, and Morin v. National Special Handling Unit Review Committee, 1985 CanLII 24 (SCC), [1985] 2 S.C.R. 662, (on the same issue see also Dumas v. Leclerc Institute, 1986 CanLII 38 (SCC), [1986] 2 S.C.R. 459).

Writing for the Court in R. v. Miller, supra, Le Dain J. noted that the confinement of a prisoner separate from the general inmate population constitutes a deprivation of a residual liberty interest of the inmate. He determined that habeas corpus should be available to challenge secondary forms of detention.

Further consideration was given to the use of the writ of habeas corpus in R. v. Gamble, supra. In that case, the impugned provision extended the term of Gamble's ineligibility for parole. Gamble did not challenge the legitimacy of her incarceration but rather the restrictions on her access to consideration for parole. Wilson J. writing for the majority, advocated a flexible approach to the application of the rules concerning access to the writ when it was invoked in a Charter context. She specifically confirmed the use of the writ as a remedy for an alleged s. 7 violation of the Charter. Once again it was recognized that the secondary detention deprived the prisoner of an important residual liberty interest.

In Mr. Idziak's case, the execution of the warrant of surrender would result in his transfer to the custody of the requesting state. Obviously, this is an important and far reaching restriction on his residual liberty. As such it would constitute a form of secondary detention thus empowering the superior court for Ontario to consider the application for the issuance of habeas corpus.

I acknowledge that Mr. Idziak's position differs from that of the applicants' in the Miller, Cardinal, Morin and Gamble cases. Here Mr. Idziak's current confinement results from the issuance of the warrant of committal. The restriction on his liberty imposed by the warrant of surrender remains a future prospect. The respondents argued that because the restriction of liberty is a future prospect, Mr. Idziak does not meet the traditional requirement that habeas corpus can only be effective against actual detention.

In In re Isbell, supra at p. 65, Rinfret J. held that "to make a case for habeas corpus in criminal matters, there must be an actual confinement or, at least, the present means of enforcing it" [emphasis added]. Doherty J. cited this case as authority for the proposition that an individual could seek a writ of habeas corpus for a threat of detention, such as that posed by the issuing of the warrant of surrender. In my view the words of Rinfret J. referred to more immediate threats. It is significant that he found that the writ was available to a person in police custody but not to a person at large on bail. This limitation of the access to the writ was reaffirmed in Masella v. Langlais, 1955 CanLII 77 (SCC), [1955] S.C.R. 263, at pp. 274-75, where Locke J. wrote at p. 274:

If...the fact that there was an order for deportation outstanding under which the applicant might be taken into custody, afforded ground for the issue of the writ, any accused person for whose arrest a warrant has been issued but which has not been executed might apply by habeas corpus for his discharge. I know of no authority for any such proposition.

On its face, this decision would seem to prohibit Mr. Idziak from seeking the remedy of habeas corpus against his surrender before the Canadian authorities actually initiate the surrender phase by confining him for the purposes of transfer to the United States. I think that should not be the case. Such a requirement would place an unfair and intolerable burden upon an applicant.

From a practical point of view to apply such a principle would put anyone in Mr. Idziak's situation in an impossible position. Is it really necessary that the subject be forced to wait until he is incarcerated, perhaps for only a very short time pending his or her transfer to the foreign authorities, before he can move to obtain relief by means of habeas corpus? The time constraints alone would place the remedy beyond reach. To take such a position would be unfair and contrary to the very nature of the remedy of habeas corpus is designed to provide.

It is significant that in Gamble, supra, the validity of the holdings made in Masella, supra, was questioned in the context of a Charter challenge. At page 645 of the reasons, Wilson J. stated:

As did my colleague Le Dain J. in Miller at pp. 638-39, I have found the American authorities helpful in identifying the kinds of liberty interest served by the habeas corpus remedy. I agree that habeas corpus, the `Great Writ of Liberty', is:

"... not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose -- the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty" (Jones v. Cunningham, 371 U.S. 236 (1962), at p. 243).

In the Jones case habeas corpus was held to cover the condition of deprived liberty an applicant on parole was placed under by the state. Lamer J. in Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, held at p. 515 that the restrictions of liberty inherent in probation orders were protected under s. 7 of the Charter. It would be anomalous if the remedy of habeas corpus did not evolve so as to be available to redress illegal deprivations of constitutionally protected liberty interests. This Court's previous decision in Masella v. Langlais, 1955 CanLII 77 (SCC), [1955] S.C.R. 263, is suspect to the extent that it denies habeas corpus as a remedy to vindicate the rights protected under s. 7 of the Charter.

Those words are pertinent and persuasive. The remedy of habeas corpus should be available to those who are subject to an outstanding warrant of detention. To be subject to the issuance of a warrant of surrender which will result in a loss of residual liberty when it is executed at a future date is certainly a sufficient basis to support an application for a writ of habeas corpus.

Was the Appellant Bound to Pursue his Statutory Remedy in the Federal Court?

The respondents argued that the Minister's decision which was made pursuant to s. 25 of the Extradition Act can only be reviewed by the Federal Court. It was said that the Minister of Justice, as the decision-maker, came within the definition of "federal board commission or other tribunal" found in s. 2 of the Federal Court Act which reads:

... any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867;

This same argument was considered and rejected in Miller, supra. Section 18 of the Federal Court Act grants jurisdiction to the Federal Court over all common law writs except that of habeas corpus. The section provides:

18.The Trial Division has exclusive original jurisdiction

(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

The limited exclusive jurisdiction of the Federal Court over the writ of habeas corpus is set out in R.S.C., 1985, c. F-7, s. 17(6) and is now incorporated as a subsection of s. 18 by the Act to Amend the Federal Court Act, the Crown Liability Act, the Supreme Court Act and other acts in consequence thereof, S.C. 1990, c. 8. It provides as follows:

17. ...

(6) The Trial Division has exclusive original jurisdiction to hear and determine every application for a writ of habeas corpus ad subjiciendum, writ of certiorari, writ of prohibition or writ of mandamus in relation to any member of the Canadian Forces serving outside Canada.

Le Dain J. concluded that the Federal Court Act by providing explicitly that the writ of habeas corpus falls within Federal Court jurisdiction to the limited extent provided by s. 17(6) indicates that in all other contexts the Federal Court does not have exclusive jurisdiction over the writ. He also found that the application by seeking to invoke certiorari in aid of habeas corpus did not thereby bring into place the exclusive jurisdiction of the Federal Court which exists over the writ of certiorari simpliciter.

The Federal Court Act does not remove the historic and long standing jurisdiction of provincial superior courts to hear an application for a writ of habeas corpus. To remove that jurisdiction from the superior courts would require clear and direct statutory language such as that used in the section referring to members of the Canadian Forces stationed overseas. It follows that the respondents fail in their contention that the Federal Court has exclusive jurisdiction in this matter. Rather it is clear that there is concurrent jurisdiction in the provincial superior courts and the Federal Court to hear all habeas corpus applications other than those specified in s. 17(6) of the Federal Court Act.

Alternative Argument on Jurisdiction

In the alternative, the respondent submitted that if concurrent jurisdiction exists then the appellant should have proceeded in the Federal Court. There seems to be two lines of authority dealing with this issue which, at first glance, appear to be divergent. The first line of authority includes the trilogy of Miller, Cardinal and Morin. Each of those cases dealt with an applicant for habeas corpus who had available, as an alternative to the superior court, a review procedure in the Federal Court. In those cases, this Court accepted the decision of the applicant to seek the remedy in the provincial superior courts although it acknowledged that the relief could, as an alternative, be sought in the Federal Court.

In the second line of cases, it has been indicated that it would be preferable for the applicant to pursue the avenue for judicial review provided by the applicable statute. See Pringle v. Fraser, 1972 CanLII 14 (SCC), [1972] S.C.R. 821, Re Peiroo and Minister of Employment and Immigration (1989), 1989 CanLII 184 (ON CA), 69 O.R. (2d) 253 (C.A.), application for leave to appeal dismissed November 23, 1989, and Steele v. Mountain Institution, 1990 CanLII 50 (SCC), [1990] 2 S.C.R. 1385.

In Pringle and Peiroo the applicable statute (the Immigration Act, R.S.C. 1952, c. 325, and later R.S.C. 1970, c. I-2) set out a procedure for review. In both cases, it was held that habeas corpus should be denied since the statute provided a complete, comprehensive and expert review. In Steele, the Court was concerned with an application for a writ of habeas corpus brought by an inmate who had been repeatedly denied parole. The Court again stated that the applicant should have proceeded by means of the judicial review, provided by the statute (the Parole Act, R.S.C., 1985, c. P-2), rather than by prerogative writ. If the applicant had sought judicial review of the National Parole Board's decision and succeeded, the Board could still have maintained, through the parole system, supervision over the inmate. In contrast, if he was successful in obtaining a writ of habeas corpus, the inmate would have to be released without any supervision. It was only in light of the very lengthy period of Steele's incarceration that the Court agreed to grant a writ of habeas corpus. However, the order fixed special conditions to his release.

The factors cited in favour of refusal to hear an application for habeas corpus which appeared in the Pringle, Peiroo and Steele cases are not present here. Parliament has not provided a comprehensive statutory scheme of review, tailored to the extradition process, comparable to the immigration scheme referred to in Pringle and Peiroo. Unlike the Steele case, proceedings by way of habeas corpus will not affect the ultimate disposition of the case. It is worthy of note that provincial superior courts routinely hear applications challenging the issue of a warrant of committal in extradition cases. There would seem to be no reasonable basis for prohibiting the provincial superior courts from considering, on the same basis, challenges to the issue of a warrant of surrender. Neither can there be any question that the provincial superior courts possess the necessary experience and skill in extradition matters which may be valuable in reviewing a warrant of surrender. It follows that the Court of Appeal was correct. Doherty J. had jurisdiction to hear the application and properly exercised his discretion in proceeding with the application.

Did the Minister of Justice Breach the Principles of Fundamental Justice Guaranteed by s. 7 of the Charter?

Should the Court Allow the Appellant to Introduce a New Argument?

Once again it is necessary to deal with a preliminary matter before considering the substantive arguments. The respondents have objected to the appellant's submission that the circumstances of the hearing gave rise to a reasonable apprehension of bias and to the appellant's challenging, at this stage, the trial judge's ruling that the confidential memorandum to the Minister was privileged. The respondents argued that the issues of bias and privilege were not raised in the Court of Appeal nor was the trial judge's ruling on privilege ever appealed. The respondents contended that as a result, these issues were not properly before this Court. Yet the respondents have continually refused production on the ground the document is privileged. As well the appellant clearly made the allegation that this statutory scheme raised a reasonable apprehension of bias in the application for leave to appeal as well as in his factum. Thus the respondents have had ample notice of this argument. Further the respondents were given the opportunity to file any additional evidence that they thought would be helpful. In these circumstances, the respondents have not suffered any real prejudice by the loss of the opportunity to respond to this claim in the courts below. It follows that it is appropriate for this Court to consider the issues of privilege and bias.

The Role of the Minister in the Extradition Process

The process of extradition is governed by the provisions of the Extradition Act which was passed to fulfil Canada's international obligations under the extradition treaty. The statutory procedures require the state requesting the presence of an individual to face criminal charges to bring an application under the Extradition Act. Agents of the Attorney General are named to act on behalf of the requesting state. They are said to act as "prosecutors" at the extradition hearing which is in the nature of a trial. The "requested" individual is, of course, entitled to be present and represented at the hearing. If, at the conclusion of the hearing, the extradition court issues a warrant of committal, then the individual may appeal the result by means of an application for a writ of habeas corpus. If this application and the subsequent appeals should fail, then, pursuant to s. 25 of the Extradition Act, the Minister of Justice may issue a warrant of surrender against the individual. Both the Extradition Act and the extradition treaty include specific provisions which empower the Minister to refuse to surrender an individual on the grounds that the pending foreign prosecution is politically motivated; or that the individual is currently subject to the Canadian criminal justice system; or, that despite a request to do so, the foreign state refuses to guarantee that the penalty of death will not be exacted.

The impact of the Charter on Canada's extradition proceedings was considered in Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500. There Justice La Forest, writing on behalf of the Court, held that s. 7 of the Charter applied to extradition proceedings. He concluded that extradition would deprive an individual of his or her rights if it was accomplished in a manner that failed to satisfy the requirements of fundamental justice. He wrote at pages 520-22:

The pre-eminence of the Constitution must be recognized; the treaty, the extradition hearing in this country and the exercise of the executive discretion to surrender a fugitive must all conform to the requirements of the Charter, including the principles of fundamental justice.

I should at the outset say that the surrender of a fugitive to a foreign country is subject to Charter scrutiny notwithstanding that such surrender primarily involves the exercise of executive discretion. In Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, Dickson J. (now C.J.) made it clear that "the executive branch of the Canadian government is duty bound to act in accordance with the dictates of the Charter" (p. 455) and that even "disputes of a political or foreign policy nature may be properly cognizable by the courts" (p. 459)....

I have no doubt...that in some circumstances the manner in which the foreign state will deal with the fugitive on surrender, whether that course of conduct is justifiable or not under the law of that country, may be such that it would violate the principles of fundamental justice to surrender an accused under those circumstances....Situations...may well arise where the nature of the criminal procedures or penalties in a foreign country sufficiently shocks the conscience as to make a decision to surrender a fugitive for trial there one that breaches the principles of fundamental justice enshrined in s. 7.

La Forest J. went on to emphasize that, although the Charter applies to the executive decision to surrender the fugitive, the court should pay due deference to the detailed information the executive would possess and to the expert knowledge it would exercise in making the decision. On page 523, he wrote:

The courts have the duty to uphold the Constitution. Nonetheless, this is an area where the executive is likely to be far better informed than the courts, and where the courts must be extremely circumspect so as to avoid interfering unduly in decisions that involve the good faith and honour of this country in its relations with other states. In a word, judicial intervention must be limited to cases of real substance.

It is clear then that the application of the Charter to the extradition procedure empowers the courts to examine the fairness of the extradition procedure set out in the legislation. Further, the authorities make it clear that the decision of the Minister to issue a warrant of surrender pursuant to s. 25 of the Extradition Act must be exercised in accordance with the principles of fundamental justice.

It has been held that the phrase "principles of fundamental justice" refers to both substantive and procedural rights. The phrase was considered in Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177. There, at pages 212-13, Wilson J. writing for the Court stated:

...at a minimum the concept of "fundamental justice" as it appears in s. 7 of the Charter includes the notion of procedural fairness articulated by Fauteux C.J. in Duke v. The Queen, 1972 CanLII 16 (SCC), [1972] S.C.R. 917. At page 923 he said:

Under s. 2(e) of the Bill of Rights no law of Canada shall be construed or applied so as to deprive him of "a fair hearing in accordance with the principles of fundamental justice". Without attempting to formulate any final definition of those words, I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity adequately to state his case.

The elements of fairness form a minimum standard of s. 7 protection. The extent and nature of that protection, which is based upon the common law notion of procedural fairness, will depend upon the context in which it is claimed. See, for example, Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653 and Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879, at pp. 895-96. To determine the nature and extent of the procedural safeguards required by s. 7 a court must consider and balance the competing interest of the state and the individual. See R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 361, and Chiarelli v. Canada (Minister of Employment and Immigration), 1992 CanLII 87 (SCC), [1992] 1 S.C.R. 711, at p. 744.

Did the Minister's Review Raise a Reasonable Apprehension of Bias?

(a) Is There Institutional Bias Created by the Extradition Process?

The extradition process in which Mr. Idziak was involved must then meet the minimal standards of procedural fairness. These standards will include the right to be heard by an unbiased decision-maker. It is the appellant's position that the Extradition Act creates an impermissible apprehension of bias. The issue of institutional bias was considered in R. v. Lippé, 1990 CanLII 18 (SCC), [1991] 2 S.C.R. 114. Chief Justice Lamer, with whom the majority agreed on this point, defined the threshold test for a party claiming institutional bias in this way at p. 144:

Step One: Having regard for a number of factors including, but not limited to, the nature of the occupation and the parties who appear before this type of judge, will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases?

Step Two: If the answer to that question is no, allegations of an apprehension of bias cannot be brought on an institutional level, but must be dealt with on a case-by-case basis. [Emphasis in original.]

The requirement that the alleged bias occur in a substantial number of cases is met in this case as the challenged overlapping of the roles of the Minister of Justice in the extradition process would apply to every extradition proceeding. The difficulty arises in applying step two which requires a court to consider the "nature of the occupation" and the parties. In order to comply with this aspect of the test, it is necessary to examine the character of the impugned provisions.

It has been seen that the extradition process has two distinct phases. The first, the judicial phase, encompasses the court proceedings which determine whether a factual and legal basis for extradition exists. If that process results in the issuance of a warrant of committal, then the second phase is activated. There, the Minister of Justice exercises his or her discretion in determining whether to issue a warrant of surrender. The first decision-making phase is certainly judicial in its nature and warrants the application of the full panoply of procedural safeguards. By contrast, the second decision-making process is political in its nature. The Minister must weigh the representations of the fugitive against Canada's international treaty obligations. The differences in the procedures were considered in Kindler v. Canada (Minister of Justice), 1991 CanLII 78 (SCC), [1991] 2 S.C.R. 779, at pp. 798-99:

In this two-step process any issues of credibility or claims of innocence must be addressed by the extradition judge. Kindler had ample opportunity before Pinard J. to challenge the credibility of the evidence led against him at his trial. This he did not do. It was therefore not open to him to seek to adduce fresh evidence before the Minister of Justice as to the credibility of witnesses or his innocence of the offence. The Minister was obliged neither to consider such issues, nor to hear viva voce evidence.

The Minister was not required to provide detailed reasons for his decision. Nonetheless he expressly stated in his letter to counsel for Kindler that he had "examined this case thoroughly and with care" and that the decision was "based on a review of the evidence presented at trial, the extradition proceedings and the materials and representations [which had been] submitted." Among those representations were the written and oral submissions of counsel which dealt with various aspects of the case, including the method of execution used in Pennsylvania. The material presented included a letter from Kindler. The Minister's letter indicates that he considered the submissions and material and found them insufficient to overcome the countervailing policy concerns.

The Minister, both in determining what evidence he should consider on the application and in reaching his decision, complied with all the requirements of natural justice. It follows that the appellant's submissions cannot be accepted.

Parliament chose to give discretionary authority to the Minister of Justice. It is the Minister who must consider the good faith and honour of this country in its relations with other states. It is the Minister who has the expert knowledge of the political ramifications of an extradition decision. In administrative law terms, the Minister's review should be characterized as being at the extreme legislative end of the continuum of administrative decision-making.

The appellant contends that a dual role has been allotted to the Minister of Justice by the Extradition Act. The Act requires the Minister to conduct the prosecution of the extradition hearing at the judicial phase and then to act as adjudicator in the ministerial phase. These roles are said to be mutually incompatible and to raise an apprehension of bias on their face. This contention fails to recognize either the clear division that lies between the phases of the extradition process, each of which serves a distinct function, or to take into account the separation of personnel involved in the two phases.

It is correct that the Minister of Justice has the responsibility to ensure the prosecution of the extradition proceedings and that to do so the Minister must appoint agents to act in the interest of the requesting state. However the decision to issue a warrant of surrender involves completely different considerations from those reached by a court in an extradition hearing. The extradition hearing is clearly judicial in its nature while the actions of the Minister of Justice in considering whether to issue a warrant of surrender are primarily political in nature. This is certainly not a case of a single official's acting as both judge and prosecutor in the same case. At the judicial phase the fugitive possesses the full panoply of procedural protection available in a court of law. At the ministerial phase, there is no longer a lis in existence. The fugitive has by then been judicially committed for extradition. The Act simply grants to the Minister a discretion as to whether to execute the judicially approved extradition by issuing a warrant of surrender.

It is significant that the appellant's argument has already been rejected by this Court in United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469. At page 1500, La Forest J. noted:

... I find the argument that the fact that the executive discretion to refuse surrender and the duty to present requests for extradition in court, both fall within the responsibilities of the Minister of Justice, somehow create an unacceptable conflict to have no merit.

I agree with this comment. Certainly the arrangement could not raise apprehension of bias in a fully informed observer. The appellant's allegation of institutional bias must fail.

(b) Is There Actual Bias Demonstrated by the Acts of the Minister?

The appellant next raised the argument that in the particular circumstances of this case, the reasonably informed person could have had a reasonable apprehension of bias by the Minister against the appellant. The determination of bias in a specific case will depend upon the characterization of the decision-maker's function. Administrative decision-making covers a broad spectrum. At the adjudicative end of the spectrum, the appropriate test is: could a reasonably informed bystander reasonably perceive bias on the part of the adjudicator? At the opposite end of the continuum, that is to say the legislative end of the spectrum, the test is: has the decision-maker pre-judged the matter to such an extent that any representations to the contrary would be futile? See Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623, at p. 638.

The basis for the distinction is that, in an adjudicative proceeding, the parties' confidence in the result will depend upon the decision-maker's adhering to a standard of judicial impartiality. On the other hand, an administrative body created to determine policy issues may need the expert knowledge of members who are representative of interested parties. The legislative goal in creating such administrative bodies would be frustrated if courts held their members to the strict reasonable apprehension of bias standard. The exercise by the Minister of Justice of the authority to surrender an individual already judicially committed for extradition clearly falls in the legislative end of the continuum. The closed mind test applied in Newfoundland Telephone, supra, is applicable in this case.

There is no suggestion that the Minister was improperly influenced by anyone involved in prosecuting the extradition proceedings against Mr. Idziak nor is there any evidence that the Minister in any way pre-judged the matter. The appellant has certainly not established that the Minister as decision-maker held an impermissible bias against him. This submission of the appellant cannot be sustained.

Did the Failure to Disclose the Internal Memorandum Breach the Appellant's Procedural Rights?

The appellant alleges that the Minister of Justice violated the principles of audi alteram partem by considering a confidential memorandum when determining whether to issue a warrant of surrender. That memorandum was prepared by staff counsel and not by the agents of the Minister who acted in the judicial proceedings in the District Court which resulted in the issuing of the warrant of committal. It included: a summary of all the proceedings involving Mr. Idziak, a summary of Mr. Idziak's representations to the Minister concerning the surrender decision, and a recommendation. The appellant did not learn of this document until after the Minister had issued the warrant. The appellant contends that this breached the requirements of procedural fairness. The appellant has maintained that he should have received a copy of the memorandum so that he could have prepared his own representations with full knowledge of "the case against him". The appellant asserts this claim despite the contention of the Minister upheld in the courts below that the document should enjoy solicitor-client privilege and should not have been disclosed.

Once again there can be no doubt that the Minister, in considering the issuance of the writ of surrender, must act fairly. What must be assessed is whether the legislative scheme of ministerial review achieves a reasonable balance between the interest of the state and that of the individual. Mr. Idziak has of course a right to expect that the Minister will exercise his or her discretion fairly. The state as well has an interest in honouring Canada's international commitment to the extradition process. In perpetrating crimes, criminals have never had any particular respect for international boundaries. Fraud and particularly offences involving narcotics are prime examples of such crimes. Extradition treaties support the endeavours of law enforcement agencies on both sides of our international borders. It is certainly appropriate that criminals should be prosecuted in the country where the crime was allegedly committed and where the persons and witnesses most interested in bringing the accused to trial may live. As well, the state from which a fugitive is requested has a legitimate interest in seeing that it does not become a haven for criminals. La Forest, in her helpful text La Forest's Extradition to and from Canada (3rd ed. 1991), comments at p. 15 to this effect:

The desirability of the [extradition] procedure is evident, especially in these days of rapid communication. It strengthens the law enforcement agencies within the state requesting the surrender by reducing the possibility of its criminals escaping. And it is to the advantage of the state to which a criminal has escaped, for no country desires to become a haven for malefactors. These benefits could be obtained, it is true, if states punished criminals for offences committed outside their jurisdiction -- such as may be done, for instance, in the cases of piracy and of bigamy committed abroad by a Canadian citizen who has left Canada for the purpose -- but it is better in general that a crime be prosecuted in the country where it is committed and where the witnesses and the persons most interested in bringing the criminals to justice reside.

All Canadians have a very real interest in seeing that Canada's obligations under our extradition treaties are properly fulfilled. If they were not, it would be increasingly difficult to expect that our country's requests would be granted to extradite accused persons to Canada.

The Minister quite properly claims solicitor-client privilege for the memorandum. As a result of the nature of the proceedings before the Minister and the conclusion that s. 7 of the Charter has not been violated, very little need be said on this issue and what little will be said should be restricted in the application to the situation presented on this appeal. It is noteworthy that, apart from the recommendation, there was nothing in the document that was not known to the appellant. Further the confidential memorandum was not evidence to be used in an adversary proceeding. Rather, it was a briefing note to the Minister from a staff member who did not have any interest in the outcome. I agree with the findings and conclusion of Doherty J. that this document was indeed privileged. It meets the criteria outlined in Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821 at p. 837. As a result, it did not have to be disclosed to the appellant. The failure to disclose it did not constitute unfairness viewed in light of the nature of the proceedings before the Minister.

The appellant relied upon the decision of Radulesco v. Canadian Human Rights Commission, 1984 CanLII 120 (SCC), [1984] 2 S.C.R. 407. Yet that case is clearly distinguishable. There the decision-making body had conceded that access should have been granted to the confidential document. It is far different from the case at bar, where the Minister has constantly and correctly claimed solicitor-client privilege for the document.

Summary

In summary, it can be said that:

(a) there is no institutional bias or unfairness in the statutory procedures enacted for the extradition of an individual;

(b) there was no apprehension of bias demonstrated at any point in the course of Mr. Idziak's hearings;

(c) viewed in light of the nature of the ministerial decision whether to issue a warrant of surrender, no unfairness was demonstrated by the refusal to produce the memorandum of a Department of Justice lawyer prepared for the Minister. Taken in the context of the ministerial decision, the document was properly entitled to solicitor-client privilege and need not have been produced.

Disposition

In the result the appeal must be dismissed.

The following are the reasons delivered by

//Sopinka J.//

Sopinka J. -- Subject to the reservation expressed by Chief Justice Lamer which I share, I agree with Justice Cory.

Appeal dismissed.

Solicitors for the appellant: Gowling, Strathy & Henderson, Ottawa.

Solicitors for the respondents: The Attorney General of Canada, Ottawa.