SUPREME COURT OF CANADA

Citation: Canada (Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170

Date: 20091016

Docket: 32842

Between:

Minister of Justice of Canada

Appellant

and

Henry C. Fischbacher

Respondent

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

Reasons for Judgment:

(paras. 1 to 59)

Concurring Reasons:

(paras. 60 to 88)

Charron J. (McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Rothstein and Cromwell JJ. concurring)

Fish J.

Canada (Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170

Minister of Justice of Canada Appellant

v.

Henry C. Fischbacher Respondent

Indexed as: Canada (Justice) v. Fischbacher

Neutral citation: 2009 SCC 46.

File No.: 32842.

2009: June 16; 2009: October 16.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

on appeal from the court of appeal for ontario

Extradition — Surrender — Powers of Minister — Misalignment test — U.S. seeking F’s extradition on charge of first degree murder — Extradition judge committing F for offence of second degree murder finding insufficient evidence on one element of Canadian offence of first degree murder — Minister of Justice surrendering F for American offence of first degree murder — Whether Minister must ensure alignment between foreign offence upon which person sought ordered to be surrendered and evidence adduced before extradition judge at committal hearing.

F was indicted on a charge of first degree murder in Arizona in relation to the death of his wife. The United States requested his extradition. The Minister of Justice authorized the request, identifying the corresponding Canadian offence in the authority to proceed as “murder, contrary to s. 231 of the Criminal Code” without particularizing the crime as first or second degree murder. The Attorney General proceeded to a committal hearing and the extradition judge committed F for the offence of second degree murder, finding no evidence of planning and deliberation to justify a committal for first degree murder under Canadian law. No appeal was taken from the committal order. The Minister subsequently ordered F’s surrender to face trial for first degree murder in the United States. F sought judicial review of the Minister’s decision. The Court of Appeal held that the principle of double criminality was met but, applying the “misalignment test”, it held that it was unreasonable to order F’s surrender for first degree murder in the absence of evidence of the essential element of premeditation at the committal proceeding. The court allowed the application for judicial review and remitted the matter to the Minister for reconsideration.

Held: The appeal should be allowed and the Minister’s surrender order restored.

Per McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ.: The principle of double criminality codified in s. 3 of the Extradition Act has two components, one foreign and one domestic. The foreign component requires that the offence upon which extradition is requested be criminal in the requesting state and carry the specified penalty. The domestic aspect requires that the conduct underlying the foreign offence amount to a criminal offence under Canadian law with the specified penalty. Consistent with prevailing international practice and the principle of comity, Canada has adopted a conduct‑based approach to determining double criminality and, as a result, it is not necessary that the Canadian offence described in the authority to proceed or the committal order “match” the foreign offence for which the person is sought or surrendered in name or in terms of its constituent elements; it is the essence of the offence that is important under the conduct‑based approach. [4] [29]

The role of the Minister and the breadth of his discretion in extradition matters can only be understood with reference to the legislative scheme established by the Act. The Minister, by authorizing extradition proceedings, establishes that the foreign component of double criminality is satisfied. The function of an extradition hearing is to determine whether the domestic component of double criminality is met. The province of the extradition judge is limited to determining whether the evidence submitted at the committal hearing reveals conduct that would justify committal for trial in Canada for the crime listed in the authority to proceed, if the crime had occurred in Canada. The judge’s role does not include any review of the foreign law. If the extradition judge concludes that the impugned conduct would amount to a criminal offence in Canadian law, the person sought must be committed for extradition. [35]

Following committal, the Minister reviews the case in its entirety to determine whether to order the individual’s surrender, and if so, on what basis. This requires the Minister to determine whether it is politically appropriate and not fundamentally unjust to extradite the person sought. The Minister’s general power to order or refuse surrender pursuant to s. 40(1) of the Extradition Act is subject to the provisions of the Act, the extradition treaty, and the Canadian Charter of Rights and Freedoms. Under s. 44(1)(a) of the Act, the Minister shall refuse to make a surrender order if he is satisfied that the surrender would be unjust or oppressive having regard to all the relevant circumstances. This requires the Minister to balance factors that militate in favour of surrender against those that counsel against it. If the Minister decides to surrender the person sought, his order under s. 58(b) must specify the offence or conduct for which the person is surrendered, but nothing in that section requires that the Minister match or “align” the surrender offence with that listed in the authority to proceed or the committal order, or with the evidence adduced at the hearing. [36‑41]

The “misalignment” test is incompatible with three key components of extradition law. Requiring the Minister to assess the parity between the elements of the Canadian offence and the elements of the foreign offence amounts to adding an offence‑based test for double criminality at the final stage of the extradition process, and is inconsistent with the Act and the extradition treaty. Further, for the Canadian authorities, judicial or executive, to evaluate a foreign state’s decision to prosecute the person sought for a given offence, or to assess the sufficiency of the evidence adduced at the committal hearing against the elements of the foreign offence, would amount to second‑guessing the foreign state’s assessment of its own law and would offend the underlying principle of comity. Lastly, the “misalignment” test is inconsistent with the role of the extradition judge defined by s. 29 of the Act, which specifies that the judge is to consider only the domestic side of double criminality, looking for evidence in respect of each element of the Canadian offence listed in the authority to proceed. [49‑53]

Since the Minister was under no obligation to apply a misalignment test, his failure to do so cannot provide a basis for interfering with the surrender decision. When the reasonableness of the Minister’s surrender decision is assessed having regard to all relevant circumstances and in accordance with the applicable provisions of the Act, there is no basis for interfering with his decision. [6] [58]

Per Fish J.: The Minister’s broad discretion to order surrender is subject to judicial review pursuant to s. 57(7) of the Extradition Act. An absence of evidence on an undisputed element of the foreign offence for which surrender is ordered, without a reasonable explanation, may warrant judicial intervention. This view of the law is firmly rooted in an unbroken line of recent, unanimous appellate court decisions. An absence of evidence on an essential element of the foreign offence for which surrender is ordered is an absence of evidence that the offence was committed. Neither comity nor conduct‑based double criminality authorizes a surrender for trial on an offence for which there is no evidence. The Extradition Act is intended to prevent this from occurring. [60‑61] [63‑64] [73]

To permit the Minister to turn a blind eye to a total absence of evidence on an element of the foreign offence would create a total disconnect between the judicial and executive functions under the Act. These are different, but they are meant to complement and not to contradict one another. The judge and not the Minister determines whether the evidence adduced at the extradition hearing would warrant committal to trial on the Canadian offence set out by the Minister in the authority to proceed if that conduct had occurred in Canada. The judicial determination of whether or not to commit a person sought for extradition is made without reference to the foreign offence, but where a committal order rests on findings of fact that necessarily relate to the conduct of both the Canadian offence and the offence for which extradition is sought, those findings cannot be disregarded by the Minister. [70] [72] [75]

It is not reasonable to surrender a person sought for extradition without an explanation if there is no dispute as to the essential elements of the foreign offence and there is complete lack of evidence on one or more of the elements. The Minister normally should provide the explanation, however it may also appear from the materials before the court. Here, the Minister’s explanation for the surrender order was inadequate, but the record provided a sufficient explanation. The Minister had before him an indictment by a grand jury, a warrant of arrest signed by a Superior Court judge from Arizona, and a Certification of the Record of the Case by a Deputy County Attorney of that state attesting to the sufficiency of the evidence to support a conviction for first degree murder. Nothing in the findings of the extradition judge pursuant to the committal proceedings in Canada is inconsistent with the grand jury indictment, the warrant issued by the Superior Court in Arizona, or the certified opinion of the Deputy County Attorney. In these circumstances, surrendering F to face trial for first degree murder was not unreasonable. [79‑80] [85-86] [88]

Cases Cited

By Charron J.

Not followed: United States of America v. Reumayr, 2003 BCCA 375, 176 C.C.C. (3d) 377, leave to appeal refused, [2006] 1 S.C.R. xiv; United States of America v. Gorcyca, 2007 ONCA 76, 216 C.C.C. (3d) 403; Canada (Minister of Justice) v. Saad, 2007 ONCA 75, 216 C.C.C. (3d) 393; United States of America v. Kissel, 2008 ONCA 208, 89 O.R. (3d) 481; Karas v. Canada (Minister of Justice), 2007 BCCA 637, 233 C.C.C. (3d) 237; Narayan v. Canada (Minister of Justice), 2008 BCCA 280, 257 B.C.A.C. 121; referred to: Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761; McVey (Re), 1992 CanLII 48 (SCC), [1992] 3 S.C.R. 475; Norris v. Government of the United States of America, [2008] UKHL 16, [2008] 2 All E.R. 1103; United States of America v. Johnson (2002), 2002 CanLII 19980 (ON CA), 62 O.R. (3d) 327; Bonamie, Re, 2001 ABCA 267, 293 A.R. 201; United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587; Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; United States of America v. Saad (2004), 2004 CanLII 9931 (ON CA), 183 C.C.C. (3d) 97; Canada (Minister of Justice) v. Reumayr, 2005 BCCA 391, 199 C.C.C. (3d) 1; Kindler v. Canada (Minister of Justice), 1991 CanLII 78 (SCC), [1991] 2 S.C.R. 779; Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536; United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532; Ross v. United States of America (1994), 1994 CanLII 1749 (BC CA), 93 C.C.C. (3d) 500, aff’d 1996 CanLII 226 (SCC), [1996] 1 S.C.R. 469.

By Fish J.

Referred to: Karas v. Canada (Minister of Justice), 2009 BCCA 1, 240 C.C.C. (3d) 293; Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761; United States of America v. Saad (2004), 2004 CanLII 9931 (ON CA), 183 C.C.C. (3d) 97; United States of America v. Gorcyca, 2007 ONCA 76, 216 C.C.C. (3d) 403; Canada (Minister of Justice) v. Saad, 2007 ONCA 75, 216 C.C.C. (3d) 393; United States of America v. Whitley (1994), 1994 CanLII 498 (ON CA), 94 C.C.C. (3d) 99, aff’d 1996 CanLII 225 (SCC), [1996] 1 S.C.R. 467; United States of America v. Kissel, 2008 ONCA 208, 89 O.R. (3d) 481; State v. Thompson, 204 Ariz. 471 (2003); State v. Kiles, 213 P.3d 174 (2009).

Statutes and Regulations Cited

Ariz. Rev. Stat. §§ 13‑603, 13‑604, 13‑703, 13‑710, 13‑1105.

Canadian Charter of Rights and Freedoms, s. 7.

Criminal Code, R.S.C. 1985, c. C‑46, s. 231.

Extradition Act, S.C. 1999, c. 18, ss. 3(1), (2), 15, 23(2), 29, 33, 40(1), 43(1), 44, 46, 47, 48(1), 57(2), (7), 58, 71.

Federal Courts Act, R.S.C. 1985, c. F‑7, s. 18.1.

Treaties and Other International Instruments

Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3, arts. 2, 9, 10.

Authors Cited

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

APPEAL from a judgment of the Ontario Court of Appeal (Doherty and MacFarland JJ.A. and Kent J. (ad hoc), 2008 ONCA 571, 91 O.R. (3d) 401, 239 O.A.C. 211, 235 C.C.C. (3d) 45, [2008] O.J. No. 3029 (QL), 2008 CarswellOnt 4594, quashing a surrender order and remitting the matter to the Minister of Justice of Canada for further consideration. Appeal allowed.

Janet Henchey and Nancy Dennison, for the appellant.

Gregory Lafontaine and Vincenzo Rondinelli, for the respondent.

The judgment of McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ. was delivered by

Charron J. —

1. Overview

[1] Henry Fischbacher was indicted on a charge of first degree murder by a grand jury in Tucson, Arizona, in relation to the death of his wife. The United States has requested his extradition to stand trial on that charge. The Minister of Justice (the “Minister”) authorized the extradition request to proceed to a committal hearing, identifying the Canadian offence corresponding to the alleged criminal conduct as “Murder, contrary to section 231 of the Criminal Code”, R.S.C. 1985, c. C-46. The extradition judge committed Mr. Fischbacher for the offence of second degree murder, finding no evidence of planning and deliberation sufficient to justify a committal for first degree murder under Canadian law. No appeal was taken from the committal order. The Minister then ordered Mr. Fischbacher’s surrender for the American offence of first degree murder, as requested by the United States.

[2] Mr. Fischbacher sought judicial review of the Minister’s decision before the Court of Appeal for Ontario. He conceded that he could be returned to the State of Arizona to face trial on a charge of second degree murder in accordance with the finding of the extradition judge, but argued that the Minister’s decision to surrender him on the charge of first degree murder was unreasonable. In support of this argument, Mr. Fischbacher relied on expert opinion evidence filed with the Minister indicating that, much as proof of planning and deliberation is required to constitute the offence of first degree murder in Canada, premeditation is a necessary element of the offence according to Arizona law. He also relied on appellate decisions that have concluded that a “misalignment” between the offence for which the Minister ordered surrender and the offence supported by the evidence at the committal hearing may render a surrender decision unreasonable: see, e.g., United States of America v. Reumayr, 2003 BCCA 375, 176 C.C.C. (3d) 377, leave to appeal refused, [2006] 1 S.C.R. xiv; United States of America v. Gorcyca, 2007 ONCA 76, 216 C.C.C. (3d) 403; Canada (Minister of Justice) v. Saad, 2007 ONCA 75, 216 C.C.C. (3d) 393; and United States of America v. Kissel, 2008 ONCA 208, 89 O.R. (3d) 481.

[3] The Court of Appeal accepted Mr. Fischbacher’s argument: 2008 ONCA 571, 91 O.R. (3d) 401. In its view, his attack on the surrender order did not engage the principle of double criminality, as contended by the Minister. Double criminality, which requires a finding that the conduct giving rise to the foreign charge also constitutes an offence under Canadian law, was “clearly” respected in this case (para. 16). The question, rather, was whether the Minister acted unreasonably in deciding that it was not unjust to order Mr. Fischbacher’s surrender for the “clearly more serious allegation of first degree murder”, in the circumstances (para. 41). Given the absence of any evidence on the essential element of premeditation at the committal proceeding, the Court of Appeal concluded that the Minister’s decision was unreasonable. The matter was remitted to the Minister for reconsideration.

[4] In deciding how the principle of double criminality should be satisfied, it was open to Parliament to define the crimes for which extradition may be sought and ordered either in terms of the alleged conduct, or the elements of the foreign offence. Canada’s chosen approach is unquestionably conduct-based. Thus, extradition is permitted when the conduct underlying the foreign offence, if it occurred in Canada, would constitute an offence in Canadian law, however named or characterized. So long as the offence also falls in the category of extraditable offences, defined by the Extradition Act, S.C. 1999, c. 18 (the “Act”), double criminality is fulfilled. This approach is not only consistent with prevailing international practice, it also accords with the principle of comity which demands deference and respect for the laws of other nations.

[5] I respectfully disagree with the conclusion of the court below that Mr. Fischbacher’s argument does not engage the principle of double criminality. The “misalignment” test invites the Minister to compare the foreign offence to its Canadian equivalent in a manner that is inconsistent with the conduct-based approach to double criminality. By requiring that the Minister satisfy himself that the conduct upon which the extradition judge found double criminality also establishes all the elements of the foreign offence, the “misalignment” test effectively imports an offence-based test for double criminality at the final stage of the extradition process, an approach that is incompatible with both the Act and the relevant extradition treaty, the Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3 (“Treaty”), in force March 22, 1976. As this case exemplifies, the “misalignment” test would require the Minister to effectively second-guess the foreign state’s assessment of its own law, an approach which also finds no support in the Act and which offends the fundamental principle of comity. Finally, the test conflicts with the circumscribed role of the extradition judge defined under the Act and affirmed by settled jurisprudence.

[6] That said, the Act gives the Minister a broad discretion on the question of surrender and, as I will explain below, differences between the jeopardy faced by the person sought in the foreign country and that which he would face in Canada in respect of the impugned conduct may be a relevant factor in the surrender decision in exceptional circumstances. Ultimately, however, the reasonableness of the Minister’s decision does not turn on whether the elements of the foreign offence “align” with the evidence adduced by the requesting state during the committal hearing. The reasonableness of the decision must be assessed having regard to all the relevant circumstances and in accordance with the applicable provisions of the Act. In the instant appeal, I see no basis for interfering with the Minister’s decision.

[7] For the reasons that follow, I would allow the appeal and restore the Minister’s surrender order.

2. The Extradition Request and the Committal and Surrender Orders

[8] In October 2006, a grand jury in Tucson, Arizona, issued a criminal indictment charging Mr. Fischbacher with one count of first degree murder contrary to the Arizona Criminal Code, Ariz. Rev. Stat. §§ 13-1105, 13-603, 13-604, 13-703 and 13-710, in relation to the death of his wife, Lisa Fischbacher.

[9] The United States requested Mr. Fischbacher’s extradition from Canada for the offence of first degree murder in December 2006, by way of diplomatic note.

[10] On January 8, 2007, the Minister issued an authority to proceed (“ATP”) in accordance with s. 15 of the Act. The ATP sought the committal of Mr. Fischbacher for the corresponding Canadian offence of “Murder, contrary to section 231 of the Criminal Code” but did not particularize the crime as first or second degree murder.

[11] The judicial phase of the extradition process took place in June 2007 in the Ontario Superior Court of Justice. The evidence tendered at the hearing was comprised of the certified record of the case and certified amended record of the case filed by the United States, in conformity with s. 33 of the Act. At this time, it was confirmed that the Department of Justice had received assurances to the effect that the state of Arizona would not seek the death penalty in the event of conviction.

[12] The evidence contained in the record of the case alleges that on October 6, 2006, Mr. Fischbacher telephoned his sister and disclosed that the previous day he and his wife had an argument during which he punched his wife in the face and hit her on the back of the head with a flashlight, knocking her unconscious. Mr. Fischbacher stated that he dragged his unconscious wife from the bedroom to the backyard pool, where he held her head underwater for several minutes until he believed she was dead. He fled his home around midnight, drove to the airport in Phoenix, Arizona, and flew to Buffalo, New York, where he leased a car and crossed the border into Canada.

[13] The record of the case further indicates that Ms. Fischbacher’s body was discovered by police around 5 p.m. on October 6, 2006, floating face down in the backyard swimming pool at her home. An autopsy confirmed that Ms. Fischbacher died from asphyxia and multiple traumatic head injuries.

[14] Relying on the Canadian approach to determining whether an indictment is for first or second degree murder, the extradition judge decided that the Minister’s selection of the word “murder” in the ATP must be taken to mean second degree murder in Canadian law. The United States requested that the judge authorize an amendment to the ATP pursuant to s. 23(2) of the Act, so that the corresponding Canadian offence would read “first degree murder” instead of “murder” simpliciter. The extradition judge concluded that planning and deliberation were necessary elements of the crime of first degree murder in Canada, and that there was no evidence of planning and deliberation in the record of the case. Accordingly, the request to amend the ATP was refused. The judge concluded, however, that the evidence was sufficient to establish a prima facie case of second degree murder. Pursuant to s. 71 of the Act, an order was issued for the committal of Mr. Fischbacher on the Canadian offence of second degree murder: [2007] O.J. No. 4235 (QL).

[15] No appeal was taken from the decision of the extradition judge.

[16] Following committal, it fell to the Minister to determine whether Mr. Fischbacher should be surrendered and, if so, for what offence. In accordance with s. 43(1) of the Act, Mr. Fischbacher made submissions to the Minister on the question of surrender, taking the position that he could be surrendered for the American offence of second degree murder. Mr. Fischbacher supplied the Minister with an opinion from an Arizona lawyer that the element of premeditation necessary to make out first degree murder under Arizona law is akin to the planning and deliberation elements of first degree murder in Canada. Relying on Reumayr and Gorcyca, Mr. Fischbacher argued that a surrender order for first degree murder would “substantially exceed” the evidence supporting the committal order and was therefore unjust.

[17] On March 17, 2008, the Minister issued an order pursuant to s. 58 of the Act surrendering Mr. Fischbacher for the American offence of first degree murder, as requested by the United States. In his reasons for surrender, the Minister rejected Mr. Fischbacher’s submissions on the basis that the application of foreign law is a matter for the requesting state. The Minister stated that double criminality was established by virtue of Mr. Fischbacher’s committal for second degree murder, and the decision of the extradition judge did not preclude the Minister’s discretion to order surrender for the requested offence of first degree murder.

[18] Mr. Fischbacher sought judicial review of the Minister’s surrender order.

3. Judicial Review — Court of Appeal for Ontario

[19] Before the Court of Appeal for Ontario, Mr. Fischbacher acknowledged that the Act affords the Minister a broad discretion on the question of surrender, but pointed out that pursuant to s. 44(1)(a) of the Act, the Minister is obliged to refuse a request to surrender if he is satisfied that “the surrender would be unjust or oppressive having regard to all the relevant circumstances”. Mr. Fischbacher argued that it was unreasonable for the Minister to conclude that it was not unjust to surrender him for first degree murder. The Minister’s exercise of discretion was alleged to be unjust because the extradition judge determined that there was no evidence of planning and deliberation sufficient to satisfy all the elements of first degree murder. Mr. Fischbacher asked the court to quash the surrender order.

[20] The Court of Appeal agreed. Doherty J.A., writing for a unanimous court, found that Mr. Fischbacher’s attack on the reasonableness of the Minister’s decision did not engage the double criminality principle (para. 16) and was based “exclusively on what the case law describes as a ‘misalignment’ between the offence for which the Minister ordered the applicant surrendered and evidence adduced at the committal proceedings” (para. 21). Citing as authority for this “misalignment” rule the appellate cases of Reumayr, Gorcyca, Saad and Kissel, Doherty J.A. concluded that “differences between the offence in the surrender order and the offence for which the fugitive was committed will render the surrender order unreasonable only in limited circumstances” (para. 25). He defined these “limited circumstances” as those where no evidence of an essential element of the foreign charge is led at the committal hearing. To order the surrender of a person sought on a foreign charge in support of which there was no evidence before the extradition judge was deemed an unreasonable exercise of the Minister’s discretion.

[21] In light of the principles drawn from the “misalignment” jurisprudence, Doherty J.A. was of the view that, given the conclusion of the committal judge that there was no evidence to support a finding of premeditation (which he implicitly accepted as equivalent to planning and deliberation in Canadian law), the Minister’s decision to surrender Mr. Fischbacher on the charge of first degree murder was “presumptively unreasonable, unless there is some adequate explanation from the Minister” (para. 33). The surrender order was quashed and the matter remitted to the Minister for reconsideration.

[22] For the reasons that follow, it is my respectful view that the Court of Appeal erred in applying the “misalignment” test to conclude that it was unreasonable for the Minister to have surrendered Mr. Fischbacher for the requested offence of first degree murder.

4. Analysis

[23] Extradition from Canada is generally said to have two stages: one judicial and one executive: Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 21. This case concerns the executive’s role, which bookends the judicial phase, as the Minister holds a discretionary power at the outset and the close of the extradition process.

[24] The issue in this appeal is whether, in exercising his discretion under the Act to order the surrender of a person sought at the final stage of the extradition process, the Minister is required to ensure “alignment” between the foreign offence upon which surrender is ordered and the evidence adduced at the extradition hearing. In order to properly assess the scope of the Minister’s discretion, it will be useful to review all the stages of Canada’s extradition procedure prior to addressing the specific issue raised by this appeal.

[25] Canada’s international obligation to surrender fugitives from justice to other states is a product of numerous treaties concluded with various extradition partners, including the Treaty between Canada and the United States, relevant to the present appeal. The Extradition Act implements Canada’s extradition treaties into domestic law so that, from a domestic standpoint, extradition is entirely “a creature of statute”: McVey (Re), 1992 CanLII 48 (SCC), [1992] 3 S.C.R. 475, at p. 508. Accordingly, the Minister’s role and breadth of his discretion can only be understood with reference to the legislative scheme established by the Act. I begin with some brief comments about double criminality, a fundamental principle of the extradition process codified by the Act.

[26] Double criminality requires that the conduct forming the basis of the extradition request be criminal under the law of both the requesting and the requested countries. The purpose of double criminality is to safeguard the liberty of an individual whose extradition is sought by ensuring that he or she is not surrendered to face prosecution in another country for conduct that would not amount to a criminal offence in the country of refuge. This principle is internationally recognized as central to extradition law. Double criminality is a clause in all of Canada’s extradition treaties (see, e.g., Articles 2 and 10 of the Treaty) and is codified in s. 3(1) of the Act:

3. (1) [General principle] A person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner for the purpose of prosecuting the person or imposing a sentence on — or enforcing a sentence imposed on — the person if

(a) subject to a relevant extradition agreement, the offence in respect of which the extradition is requested is punishable by the extradition partner, by imprisoning or otherwise depriving the person of their liberty for a maximum term of two years or more, or by a more severe punishment; and

(b) the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada,

(i) in the case of a request based on a specific agreement, by imprisonment for a maximum term of five years or more, or by a more severe punishment, and

(ii) in any other case, by imprisonment for a maximum term of two years or more, or by a more severe punishment, subject to a relevant extradition agreement.

[27] As the term implies, double criminality has two components, one foreign and one domestic. Section 3(1)(a) codifies the foreign aspect of double criminality by requiring that the offence upon which extradition is requested be criminal in the requesting state and carry the specified penalty. Paragraph (b) of s. 3(1) describes the domestic aspect of double criminality, which requires that the conduct underlying the foreign offence amount to a criminal offence under Canadian law with the specified penalty. Both elements must be satisfied before double criminality is made out.

[28] In theory, double criminality may be satisfied on one of two possible approaches: a conduct-based or an offence-based test. In Norris v. Government of the United States of America, [2008] UKHL 16, [2008] 2 All E.R. 1103, the House of Lords considered these methodologies for interpreting extradition legislation (at para. 65):

[I]t is useful to stand back from the detail and recognise the essential choice that the legislature makes in deciding just what the double criminality principle requires. It is possible to define the crimes for which extradition is to be sought and ordered (extradition crimes) in terms either of conduct or of the elements of the foreign offence. That is the fundamental choice. The court can be required to make the comparison and to look for the necessary correspondence either between the offence abroad (for which the accused’s extradition is sought) and an offence here, or between the conduct alleged against the accused abroad and an offence here. For convenience these may be called respectively the offence test and the conduct test. It need hardly be pointed out that if the offence test is adopted the requested state will invariably have to examine the legal ingredients of the foreign offence to ensure that there is no mismatch between it and the supposedly corresponding domestic offence.

[29] Consistent with the vast majority of international practice, Canada has adopted the conduct-based approach to determining double criminality, codified in s. 3(2) of the Act:

(2) [Conduct determinative] For greater certainty, it is not relevant whether the conduct referred to in subsection (1) is named, defined or characterized by the extradition partner in the same way as it is in Canada.

As a result, it is not necessary that the Canadian offence described in the ATP or the committal order “match” the foreign offence for which the person is sought or surrendered in name or in terms of its constituent elements; it is “the essence of the offence” that is important on the conduct-based approach: A. W. La Forest, La Forest’s Extradition to and from Canada (3rd ed. 1991), at p. 69.

[30] The extradition process begins when a request for extradition from Canada is made to the Minister in accordance with Article 9 of the Treaty. The Minister decides whether to authorize the request to proceed to a committal hearing in accordance with s. 15(1) of the Act, which sets out the Minister’s power as follows:

15. (1) The Minister may, after receiving a request for extradition and being satisfied that the conditions set out in paragraph 3(1)(a) and subsection 3(3) are met in respect of one or more offences mentioned in the request, issue an authority to proceed that authorizes the Attorney General to seek, on behalf of the extradition partner, an order of a court for the committal of the person under section 29.

In making the determination required by ss. 15(1) and 3(1)(a) of the Act, the Minister will necessarily consider the law of the foreign state, which is provided as part of the extradition request under Article 9 of the Treaty. The Minister must satisfy himself that the alleged conduct described in the extradition request is criminal in the foreign jurisdiction, and that the associated penalty meets the threshold established by s. 3(1)(a), or the relevant treaty, where applicable. In other words, the Minister must determine, in accordance with s. 3(1)(a), whether the foreign component of double criminality is satisfied. If so, he will issue an ATP pursuant to s. 15.

[31] An ATP permits the Attorney General, acting on behalf of the extradition partner, to initiate extradition proceedings before a superior court judge, called the extradition or committal judge in this context, to seek an order for the committal of the person sought. Section 15(3) of the Act provides that an ATP must contain three elements:

(3) The authority to proceed must contain

(a) the name or description of the person whose extradition is sought;

(b) the name of the extradition partner; and

(c) the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person or the conduct in respect of which the person was convicted, as long as one of the offences would be punishable in accordance with paragraph 3(1)(b).

[32] An ATP is akin to an information or indictment in a domestic prosecution in that the corresponding Canadian offence or offences listed in an ATP provide the focus of the determination to be made at the judicial stage. Accordingly, care must be taken to ensure that an ATP accurately identifies the Canadian offence that most closely resembles the alleged conduct underlying the foreign offence. This will necessarily require the Minister, in drafting the ATP, to undertake some limited interpretation of the domestic law.

[33] If an ATP does not identify the most appropriate Canadian offence, s. 23(2) of the Act authorizes a committal judge, upon application by the Attorney General, to amend an ATP to accord with the evidence produced by the requesting state in the course of the extradition hearing.

[34] With an ATP in hand, counsel for the Attorney General may then proceed to bring the matter before an extradition judge who conducts an extradition hearing in accordance with the Act.

[35] The function of an extradition hearing is to determine whether the domestic component of double criminality is met, as required by s. 3(1)(b) of the Act. The Act clearly establishes that the province of the extradition judge is limited to consideration of only the domestic side of this issue, as the Minister has already established that the foreign component of double criminality is satisfied. Accordingly, the role of the extradition judge does not include any review of the foreign law. Section 29 delineates the judge’s role as follows:

29. (1) [Order of committal] A judge shall order the committal of the person into custody to await surrender if

(a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner;

The judge must consider the evidence in light of Canadian law and determine whether it reveals conduct that would justify committal for the crime listed in the ATP if it had occurred in Canada. In McVey, at pp. 527-28, La Forest J. explained the role of the extradition judge as follows:

The trial judge in the United States, of course, deals with the offence under the law of that country. The identity of that offence can be determined by reference to the text of that law supplied with the requisition. The extradition judge in Canada, on the other hand, is concerned with whether the underlying facts of the charge would, prima facie, have constituted a crime . . . if they had occurred in Canada. That is what is meant by saying that double criminality is conduct based. The courts of both countries deal with the offence under their own law, the law in which they are versed, but each must ascertain whether under that law the facts support the charge. [Emphasis added.]

If the extradition judge concludes that the impugned conduct would amount to a criminal offence in Canadian law, the domestic component of double criminality is satisfied and the person sought must be committed for extradition.

[36] Following committal, the matter reverts to the Minister who reviews the case in its entirety to determine whether to order the individual’s surrender and, if so, on what basis. This requires the Minister to determine whether it is politically appropriate and not fundamentally unjust for Canada to extradite the person sought. Section 40(1) of the Act sets out the Minister’s general power on the question of surrender:

40. (1) The Minister may, within a period of 90 days after the date of a person’s committal to await surrender, personally order that the person be surrendered to the extradition partner.

The Minister’s power to order or refuse surrender is subject to the provisions of the Treaty and the Act, and must be exercised in accordance with the Canadian Charter of Rights and Freedoms.

[37] Under the Act, the Minister’s decision on surrender is contained by a series of mandatory and discretionary “Reasons for Refusal” set out in ss. 44, 46 and 47. Relevant for the purposes of the present appeal is the broad power of refusal found in s. 44(1)(a):

44. (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that

(a) the surrender would be unjust or oppressive having regard to all the relevant circumstances;

Given the mandatory nature of s. 44(1)(a), the “Minister must consider all relevant circumstances, singly and in combination, to determine whether surrender would be unjust or oppressive”: United States of America v. Johnson (2002), 2002 CanLII 19980 (ON CA), 62 O.R. (3d) 327 (C.A.), at para. 45. Whether the Minister is “satisfied” that surrender would be unjust or oppressive in a given set of circumstances, however, is entirely a matter of his discretion.

[38] Reaching a conclusion on surrender requires the Minister to undertake a balancing of all the relevant circumstances, weighing factors that militate in favour of surrender against those that counsel against. The circumstances that will be “relevant” to a surrender decision will vary depending on the facts and context of each case. Some of these factors may include: any representations made by the person sought on the question of surrender in accordance with s. 43(1) of the Act, the conduct of the proceedings in the requesting country before and after the request for extradition, the potential punishment facing the individual if surrendered, humanitarian issues relating to the personal circumstances of the individual, the timeliness and manner of prosecuting the extradition proceedings in Canada, the need to respect the constitutional rights of the person sought and Canada’s international obligations under the Treaty and as a responsible member of the international community: see Bonamie, Re, 2001 ABCA 267, 293 A.R. 201, at para. 54, and United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, at para. 34.

[39] In carrying out the analysis under s. 44(1)(a) of the Act, the “relevant circumstances” may also include an alleged breach of the rights of the person sought under the Charter. As La Forest J. wrote in Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500, at p. 522, “in some circumstances the manner in which the foreign state will deal with the fugitive on surrender . . . may be such that it would violate the principles of fundamental justice to surrender an accused under those circumstances”. The Court elaborated on this test in United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, stating, at para. 68: “The rule is not that departures from fundamental justice are to be tolerated unless in a particular case it shocks the conscience. An extradition that violates the principles of fundamental justice will always shock the conscience.” (Emphasis deleted.) In turn, as recognized by this Court in Lake, at para. 24, where surrender is found to be contrary to the principles of fundamental justice protected by s. 7 of the Charter, it will also be unjust and oppressive under s. 44(1)(a), and the Minister must refuse surrender. In this case, Mr. Fischbacher does not contend that the decision to extradite him on a charge of first degree murder violates the Charter. Thus a detailed discussion of the relationship between s. 44(1)(a) of the Act and the Charter is beyond the scope of this appeal. However, it is worth emphasizing that s. 44(1)(a) entitles the Minister to refuse surrender even where no Charter breach is alleged or where an alleged breach is not established. Where a surrender is constitutional, the Minister retains “a residual discretion to refuse surrender as being unjust or oppressive in view of the totality of the relevant circumstances, including, but not limited to, the circumstances alleged to make surrender inconsistent with the principles of the Charter”: Bonamie, at para. 47.

[40] If the Minister decides not to surrender the person sought, he must order a discharge in accordance with s. 48(1) of the Act. If surrender is deemed appropriate in the circumstances, the contents of the Minister’s surrender order must conform with s. 58 of the Act. Under s. 58(b), the Minister’s order must specify the offence or conduct for which the person is surrendered in one of three ways:

58. An order of surrender must

(b) describe the offence in respect of which the extradition is requested, the offence for which the committal was ordered or the conduct for which the person is to be surrendered;

[41] Nothing in s. 58(b) requires that the Minister match or “align” the surrender offence with that listed in the ATP or the committal order, nor with the evidence adduced at the hearing. In fact, quite the contrary: s. 58(b) provides the Minister with flexibility in crafting an order of surrender, and clearly contemplates that the wording of the surrender order may differ from that of the ATP and the order of committal: see, e.g., United States of America v. Saad (2004), 2004 CanLII 9931 (ON CA), 183 C.C.C. (3d) 97 (Ont. C.A.), at para. 40.

[42] In the present appeal, the Minister ordered Mr. Fischbacher’s surrender for the American offence of first degree murder, describing the “offence in respect of which the extradition [was] requested” under s. 58(b) of the Act. Mr. Fischbacher submits that the Minister erred in failing to find that a surrender order for first degree murder would be unjust or oppressive under s. 44(1)(a). The alleged injustice results solely from the Minister’s failure to apply the so-called “misalignment” test.

[43] Conceived of in the 2003 decision of the British Columbia Court of Appeal in Reumayr, the “misalignment” or “substantially exceeds” test has been relied upon by appellate courts in British Columbia and Ontario to conclude that the Minister must ensure that the foreign evidence satisfies the elements of the foreign charge before he can surrender the person sought for the requested offence.

[44] In Reumayr (2003), the Minister ordered the surrender of the person sought on the basis of the foreign offences for which extradition was requested, including the American offence of “attempting to bomb the Trans-Alaska Pipeline by means of explosive devices”. The British Columbia Court of Appeal considered the discrepancy between the committal order, which reflected “the conclusion that the facts alleged did not extend beyond preparation to an attempt under Canadian law”, and the Minister’s surrender order (para. 39). In allowing the application for judicial review and remitting the matter back to the Minister, Mackenzie J.A. set out what has come to be known in British Columbia as the “substantially exceeds” test (at para. 42):

In my view, the statutory scheme does not authorize extradition for offences that substantively exceed the offences that are supported in the committal proceedings. It would defeat the purpose of the committal hearing if the Minister’s discretion extended to surrender for offences substantively beyond those supported by evidence at the committal hearing. [Emphasis added.]

[45] The Minister reconsidered the surrender order as directed by the court and issued a second surrender order in 2004. Reumayr again sought judicial review. In Canada (Minister of Justice) v. Reumayr, 2005 BCCA 391, 199 C.C.C. (3d) 1, the British Columbia Court of Appeal did not reference or apply the “substantially exceeds” test formulated in the 2003 case, instead employing the conduct-based test for double criminality to find that although the Canadian and American crimes at issue had different constituent elements, the words of the Act made clear that “as long as the conduct supports a Canadian offence, it does not matter what the offence might be or how the constituent elements are described in Canada. The person is liable to extradition” (para. 150).

[46] Despite the 2005 decision in Reumayr, the “substantially exceeds” test from Reumayr (2003) survived in appellate jurisprudence and became the “misalignment” test in the decision of the Ontario Court of Appeal in Gorcyca. There, Gorcyca argued that the principle of double criminality “protects him from extradition to face foreign charges based on conduct that has not been found to warrant committal in Canada for the counterpart Canadian offences” (para. 23). Goudge J.A. first dismissed this argument (at para. 55):

In summary, I would conclude that neither the Act nor the Treaty nor the principle of double criminality require the Minister to ensure the precise alignment of the alleged conduct, the Canadian offence in the committal order and the foreign offence as the appellant contends. The Minister can order surrender in terms of the foreign offence for which extradition is sought if the conduct alleged by the foreign state to be sufficient for the foreign prosecution has been found both admissible under the Act and sufficient, if committed here, to justify committal for a Canadian offence that corresponds to that conduct. That is exactly what happened here. The appellant’s misalignment argument must be dismissed. [Emphasis added.]

[47] In obiter statements, however, Goudge J.A. went on to consider a “recast version” of the “misalignment” argument which he found “raises the question of whether there is a misalignment between the evidence in the foreign record and the foreign charges sufficient to justify judicial review of the Minister’s decision to order surrender in the terms of those charges” (para. 60). Citing with approval the decision of the British Columbia Court of Appeal in Reumayr (2003), Goudge J.A. stated (at paras. 63-64):

Where the Minister chooses to do this [order surrender in terms of the foreign charges], the complaint that the evidence in the foreign record does not sufficiently support the foreign charges can have only very limited reach, in my view. The Minister is not charged with evaluating that evidence against the counterpart Canadian charges in the Authority To Proceed. Nor is there a requirement that the Canadian charges exactly match the foreign charges, as I have attempted to explain. Moreover, the Act requires that the foreign state certify that the evidence is sufficient to justify prosecution on the foreign charges and the principle of international comity requires that this be respected.

This leaves little scope for the recast misalignment argument. In my view, only where there is an absence of evidence on what would appear to be an essential element of the foreign charge in the surrender order could it be argued that the order is plainly unreasonable or unjust or oppressive, at least without an explanation of why it is not. In such circumstances it could well be plainly unreasonable to deport someone where, from Canada’s perspective, there would seem to be no possibility of a just conviction. [Emphasis added.]

[48] Reumayr (2003) and the obiter statements from Gorcyca have been subsequently relied upon by the British Columbia and Ontario Courts of Appeal in a handful of cases including, e.g., Karas v. Canada (Minister of Justice), 2007 BCCA 637, 233 C.C.C. (3d) 237; Saad (2007), at paras. 17-20; Narayan v. Canada (Minister of Justice), 2008 BCCA 280, 257 B.C.A.C. 121, at para. 26; and Kissel, at para. 39. The instant appeal is the latest in this line of jurisprudence.

[49] With respect, it is my view that to the extent that Reumayr (2003) and its offspring stand for the principle that the Minister is required to “align” the Canadian and foreign offences by ensuring that the evidence adduced at an extradition hearing supports each element of the foreign offence upon which surrender is ordered, these decisions do not represent the law in Canada. The “misalignment” test adopted by the Court of Appeal in this case is incompatible with three key components of extradition law: conduct-based double criminality; the foundational principle of comity; and the carefully circumscribed role assigned to the extradition judge in the Act. I will explain.

[50] The “misalignment” test is functionally inconsistent with the conduct-based approach to double criminality. By requiring the Minister to assess the parity between the elements of the Canadian offence and the elements of the foreign offence before surrendering the person sought for the latter, the “misalignment” test effectively amounts to adding an offence-based test for double criminality at the final stage of the extradition process. This approach is inconsistent with the provisions of the Act and Treaty which clearly specify that conduct — not symmetry between the elements of the Canadian and foreign offences — is determinative of double criminality.

[51] By requiring the Minister to evaluate whether the requested offence is “proper” in light of the foreign evidence, the “misalignment” test amounts to a second‑guessing of the foreign state’s assessment of its own law. This sends the message that Canada is suspicious of the ability of the foreign state to assess the evidence against its own law and decide on the appropriate offence. The “misalignment” test is thus incompatible with the principles of “reciprocity, comity and respect for differences in other jurisdictions” that are foundational to the effective operation of the extradition process: Kindler v. Canada (Minister of Justice), 1991 CanLII 78 (SCC), [1991] 2 S.C.R. 779, at p. 844.

[52] Comity demands that the requested state maintain a limited role in the extradition process to prevent the proceeding from becoming a trial on the merits. The fundamental tension between comity and any assessment by the Canadian judiciary or executive of the law of the foreign state has been enunciated on numerous occasions by this Court in the context of defining the mandate of the extradition judge under the Act. In Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536, at p. 551, this Court explained as follows:

At all events, the assumption by a Canadian court of responsibility for supervising the conduct of the diplomatic and prosecutorial officials of a foreign state strikes me as being in fundamental conflict with the principle of comity on which extradition is based. [Emphasis added.]

See also, e.g., United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 99, and McVey, at pp. 508-10. While the comments in Mellino were made in respect of the judicial phase of extradition proceedings, their essential message is equally applicable to the circumstances of the present appeal: it is not for the Canadian authorities, judicial or executive, to evaluate a foreign state’s decision to prosecute the person sought for a given offence, nor to assess the sufficiency of the evidence adduced at the committal hearing against the elements of the foreign offence. To do so offends the underlying principle of comity and risks undermining the foundation of effective extradition practice.

[53] Finally, the “misalignment” test adopted by the Court of Appeal is incompatible with the role of the extradition judge defined by s. 29 of the Act. If the Minister were required to compare the elements of the foreign offence against the evidence adduced at the extradition hearing to ensure that the two are “aligned”, the requesting state would have to lead evidence on every element of the foreign offence in the context of the extradition hearing before the Minister could surrender for the requested offence. This would fundamentally change the nature of the extradition judge’s inquiry under s. 29 of the Act, which specifies that the judge is to consider only the domestic side of double criminality, looking for evidence in respect of each element of the Canadian offence listed in the ATP.

[54] That the Minister is not to assess whether the evidence adduced at a committal hearing satisfies the elements of the foreign offence should not be understood to mean that the Minister has no scope to consider foreign law in making his determination on the question of surrender. It is well established that in exceptional circumstances, the panoply of relevant factors that inform a surrender decision may include a significant discrepancy between the jeopardy faced by the person sought in the requesting state and that which he would face if convicted in Canada in respect of the same conduct: see, e.g., Ross v. United States of America (1994), 1994 CanLII 1749 (BC CA), 93 C.C.C. (3d) 500 (B.C.C.A.), per Taylor J.A., aff’d 1996 CanLII 226 (SCC), [1996] 1 S.C.R. 469. In these circumstances, the Minister is entitled to include the foreign crime and its attendant penalty as one of many factors under consideration at the surrender stage. In doing so, however, the Minister simply takes account of the potential consequences to the person sought under the foreign law, as opposed to making his own assessment of how the foreign law should apply to the case at issue. Accordingly, the Minister remains within the ambit of his proper role under the Act, and the principle of comity is not undermined.

[55] Ultimately, the reasonableness of the Minister’s surrender decision does not turn on whether the elements of the foreign offence “align” with the evidence adduced by the requesting state at the committal hearing. The reasonableness of the decision must be assessed with regard to all the relevant circumstances and the applicable provisions of the Act.

[56] I return now to the facts of the present appeal.

5. Was the Minister’s Surrender Order Unreasonable?

[57] Under s. 57(2) of the Act, judicial assessment of the Minister’s surrender order by the Court of Appeal is a form of administrative law review. In Lake, at para. 34, LeBel J. confirmed that the appropriate standard to be applied in reviewing a surrender order is reasonableness.

[58] In the present case, the sole ground upon which the Minister’s surrender order is impugned is the failure to “align” the evidence adduced at the extradition hearing with the elements of the foreign offence. Given that the Minister is under no obligation to apply a “misalignment” test in ordering the surrender of the person sought on the requested offence, as discussed above, his failure to do so cannot provide a basis for interfering with his decision. As Mr. Fischbacher points to no other circumstance that would render the surrender decision “unjust or oppressive”, I see no reason to interfere with the Minister’s order.

6. Disposition

[59] The Crown’s appeal is allowed and the order of the Court of Appeal for Ontario set aside. The Minister’s surrender order is restored.

The following are the reasons delivered by

Fish J. —

I

[60] Like Justice Charron, but for different reasons, I would allow the appeal. Unlike Justice Charron, however, and with the greatest of respect, I agree with Justice Doherty, speaking for the court below, that a substantial discrepancy between the evidence placed before the extradition judge and the evidence that is plainly required to establish an undisputed element of the foreign offence may, in the absence of a reasonable explanation, warrant judicial intervention in the Minister’s order of surrender.

[61] As we shall see, this view of the law is firmly rooted in an unbroken line of recent and unanimous decisions of the Ontario Court of Appeal. Not a single decision to the contrary has been brought to our attention, though the British Columbia Court of Appeal has very recently adopted a more deferential approach: see Karas v. Canada (Minister of Justice), 2009 BCCA 1, 240 C.C.C. (3d) 293.

[62] In this light, and in light of the Extradition Act itself (S.C. 1999, c. 18), I am unable to agree with my colleague that judicial intervention in a Minister’s order of surrender on this ground is incompatible with conduct-based double criminality, with the requirement of comity or with the role assigned to the extradition judge under the Extradition Act (reasons of Justice Charron, at para. 49).

[63] An absence of evidence on an essential element of the offence for which extradition is sought is an absence of evidence that the offence was committed. In my respectful view, neither comity nor conduct-based double criminality authorizes the Minister to issue a warrant of surrender for trial on an offence for which there is an absence of evidence. And I believe that the Extradition Act is intended to prevent this from occurring.

[64] I agree, of course, with Justice Charron that the Minister has been granted broad discretion in issuing surrender orders under the Extradition Act. That discretion, however, is subject to judicial review pursuant to s. 57(7) of the Act. Speaking for the Court in Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, where the main issue was “the standard to be applied in reviewing the Minister’s assessment of a fugitive’s Charter rights” (para. 34), LeBel J. thus took care to note (at para. 26):

Section 57(7) provides that the grounds for judicial review of the Minister’s decision to order surrender are those on which the Federal Court may grant relief under s. 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7. Thus, under s. 57(2), judicial assessment of the Minister’s decision by the court of appeal is a form of administrative law review and must be conducted in accordance with the applicable administrative law standard. As I will explain below, it is my view that the applicable standard is reasonableness.

This view of the law, read in the context of the issue in Lake, is not in dispute and it is unnecessary for the present purposes to reproduce all of the grounds of judicial review set out by Parliament in s. 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7. I think it sufficient to say that Lake commands great deference for Ministerial decisions to surrender, but was not intended to subject some of those grounds, for example that the Minister “acted without jurisdiction” (s. 18.1(4)(a)), to the “reasonableness” standard that applies to a weighing of relevant factors or an appreciation of the evidence placed before the Minister.

II

[65] As mentioned at the outset, Justice Doherty’s understanding of the law is firmly rooted in an unbroken line of recent and unanimous decisions in the Ontario Court of Appeal.

[66] In United States of America v. Saad (2004), 2004 CanLII 9931 (ON CA), 183 C.C.C. (3d) 97, Rosenberg J.A. (Moldaver and Simmons JJ.A. concurring) framed the principle I have mentioned in jurisdictional terms:

It would seem to me that, leaving aside specific extradition arrangements and s. 59, if the Minister ordered the surrender of a person for an offence that did not come within the conduct described in the committal order, he would have acted without jurisdiction. [para. 45]

Neither of the mentioned exceptions is relevant here.

[67] In United States of America v. Gorcyca, 2007 ONCA 76, 216 C.C.C. (3d) 403, Goudge J.A. (Weiler and Rouleau JJ.A. concurring) held that “[if] there is an absence of evidence on what would appear to be an essential element of the foreign charge in the surrender order . . . it could well be plainly unreasonable to deport someone where, from Canada’s perspective, there would seem to be no possibility of a just conviction” (para. 64).

[68] In Canada (Minister of Justice) v. Saad, 2007 ONCA 75, 216 C.C.C. (3d) 393, released the same day, O’Connor A.C.J.O. (Rosenberg and Cronk JJ.A. concurring) found that a Minister’s decision to surrender in the face of such a “misalignment” (a term I shall presently explain) could be set aside for two reasons (para. 17). The first is that such an order is unjust and oppressive under s. 44(1)(a) of the Extradition Act. The second is that it is plainly unreasonable and therefore reviewable under s. 57(7) of the Extradition Act and, by reference, s. 18.1(4) of the Federal Courts Act. See United States of America v. Whitley (1994), 1994 CanLII 498 (ON CA), 94 C.C.C. (3d) 99 (Ont. C.A.), at p. 112, aff’d 1996 CanLII 225 (SCC), [1996] 1 S.C.R. 467. In Saad, the Court of Appeal specified that differences in form or in particulars between the Canadian and foreign offences were not sufficient under either test (paras. 19-20). The differences must be substantive.

[69] More recently still, in United States of America v. Kissel, 2008 ONCA 208, 89 O.R. (3d) 481, the Ontario Court of Appeal set aside, in part, an order of surrender on American charges of conspiracy to launder money and witness tampering. Sharpe J.A. (Feldman and Simmons JJ.A. concurring) agreed that the test for surrender is conduct-based, but held that surrender could not be ordered in respect of a foreign offence in the absence of any evidence of the prohibited conduct that is an essential element of that offence (paras. 39-40).

[70] Moreover, to permit the Minister to order surrender in respect of impugned conduct for which no evidence was placed before the extradition judge would, in the absence of a reasonable explanation, create a total disconnect between the judicial and executive functions under the Extradition Act. I agree that these are different functions. But they are meant to complement and not to contradict one another — to operate in a harmonious and not discordant manner.

[71] Thus, the Minister and not the judge decides which Canadian offence best captures the conduct for which extradition is sought. In virtue of s. 15(3)(c) of the Act, the Minister’s authority to proceed (“ATP” ) with the request for extradition must contain “the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person [sought] . . ., as long as one of the offences would be punishable in accordance with paragraph 3(1)(b)”. These requirements are cumulative, not alternative. The designated offence must, as a matter of law, combine two characteristics: (1) it must “correspond to the alleged conduct” of the person sought; and (2) it must be punishable by imprisonment for a maximum term of five years or more in the case of a specific agreement, or by imprisonment for a maximum term of two years or more in any other case. Neither of these characteristics is alone sufficient to satisfy the plain meaning and evident objective of s. 15(3)(c) of the Act.

[72] The judge and not the Minister then determines whether the evidence adduced at the extradition hearing would warrant committal to trial on the Canadian offence set out by the Minister in the ATP if that conduct had occurred in Canada. This judicial determination is made without reference to the foreign offence. But where it rests on findings of fact that necessarily relate to the conduct of both the Canadian offence and the offence for which extradition is sought, those findings cannot be disregarded by the Minister. To hold otherwise is to amputate one of the two essential characteristics of the Extradition Act: discretionary executive authority vested in the Minister and a judicial determination regarding the conduct in respect of which extradition is sought. That conduct is examined through the prism of Canadian law. But it remains the very conduct which, in the Minister’s own view, crystallized in the ATP, corresponds to the alleged conduct for which the person is sought to be tried by the requesting state.

[73] I hasten to make it clear once more that the extradition judge is not concerned with the essential elements of the foreign offence, and that the Minister, in making an order to surrender, is not limited by the essential elements of the Canadian offence upon which committal has been ordered by the extradition judge. As Doherty J.A. put it in the Court of Appeal, “differences between the offence in the surrender order and the offence for which the fugitive was committed will render the surrender order unreasonable only in limited circumstances” (2008 ONCA 571, 91 O.R. (3d) 401, at para. 25 (emphasis added)). One of those circumstances, in my view, is where there is evidence to support the Canadian offence but a total absence of evidence on one or more of the essential elements of the foreign offence for which surrender is ordered without explanation.

[74] Under Article 9 of the extradition treaty that concerns us here (Can. T.S. 1976 No. 3), the Minister must be provided by the requesting state with “a statement of the facts of the case [and] the text of the laws of the requesting State describing the offense”. The Minister cannot be expected to challenge this required description of the offence for which extradition is sought. But nor, in my view, may the Minister disregard it in determining whether there is at least some evidence on its essential elements. The extradition arrangement leaves no room for wilful blindness regarding either the essential elements of the offence for which extradition is sought or a total lack of evidence with respect to one or more of those elements.

III

[75] In Justice Charron’s view, “the Minister is not to assess whether the evidence adduced at a committal hearing satisfies the elements of the foreign offence” (para. 54). If this is meant to suggest that the Minister can turn a blind eye to a total absence of evidence on an undisputed element of the foreign offence, then, for the reasons given, I respectfully disagree.

[76] My colleague adds that, “in exceptional circumstances, the panoply of relevant factors that inform a surrender decision may include a significant discrepancy between the jeopardy faced by the person sought in the requesting state and that which he would face if convicted in Canada in respect of the same conduct” (para. 54). As I understand my colleague’s reasons, this exception for a discrepancy in jeopardy relates only to punishment, or the relative gravity of the offences, and takes no account of the reasonableness of a conviction on the available evidence — even where there is no evidence at all on one or more elements of the foreign offence. In my respectful view, “jeopardy” is a function not only of the penalty provided, but of the reasonableness and likelihood of its illegal or unjust imposition.

[77] I return now to the issue that concerns us here: what some appellate courts have characterized as a substantive inconsistency — or “misalignment” — between the committal proceedings and the order of surrender. The term “misalignment” has given rise to some misunderstanding which should not obscure its limited meaning.

[78] “Misalignment” does not refer to a difference between the essential elements of the foreign offence specified in the Minister’s order of surrender and the essential elements of the Canadian offence for which the extradition judge has committed the fugitive. In the present context, “misalignment” is simply meant to signify a substantial discrepancy between the evidence placed before the extradition judge and the evidence that is plainly required to establish an undisputed element of the foreign offence.

[79] It is true, as Justice Charron points out, that it will not always be perfectly clear whether the foreign law requires proof of the identified element. There may be disputes between experts as to the precise meaning of the law in question. Where such a dispute exists, the Minister’s decision to surrender would not be an unreasonable exercise of discretion. But where there is no dispute as to the essential elements, nor any question that there is a complete lack of evidence on one or more of the essential elements, it cannot be reasonable to order surrender of the fugitive without explanation.

[80] While that explanation, if there is one, should normally be provided by the Minister, it may also appear from other materials before the court on an application for judicial review. Indeed, it may well appear from the evidence adduced before the extradition judge.

[81] I agree with Justice Doherty, for the reasons he has given, that the Minister’s explanation for the surrender order made in this case was entirely inadequate. With respect, however, I do believe that the record itself provides a sufficient explanation.

[82] It is true that the extradition judge found that there was no evidence of planning or deliberation before him and that Mr. Fischbacher’s impugned conduct, had it occurred in Canada, would not warrant committal to trial for first degree murder. The Minister was entitled to consider, as he evidently did, that the finding of the extradition judge was inconclusive as regards the existence of evidence of “premeditation” within the meaning of the relevant Arizona statute.

[83] The Minister did have before him the opinion of one Arizona attorney that the “premeditation” requirement on a charge of first degree murder in that state means that the murder was “both planned and deliberate” — the standard applicable in Canada. The Minister, however, was hardly bound by that opinion, which was largely based on the judgment of the Arizona Supreme Court in State v. Thompson, 204 Ariz. 471 (2003) — a decision that must now be read in the light of the same court’s subsequent judgment in State v. Kiles, 213 P.3d 174 (2009). In Kiles, at para. 18, the court found no error in the following instruction on the requirement of premeditation under Arizona law:

Premeditation means the defendant acts with the knowledge that he will kill another human being, when such intention or knowledge precedes the killing by a length of time to permit reflection. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.

[84] This is not the test that the extradition judge was required to apply in determining whether, on the evidence before him, Mr. Fischbacher’s conduct was capable of satisfying the “planned and deliberate” requirement for first degree murder in Canada. In light of Kiles, however, I am unable to say there was in this case a total absence of evidence that is plainly required to establish premeditation under Arizona law.

[85] Though this alone would hardly suffice, the Minister did have before him an indictment returned by the grand jury in Arizona, charging Mr. Fischbacher with first degree murder, and a warrant of arrest signed by a Superior Court judge on the strength of that indictment. The Minister had as well a Certification of the Record of the Case for the Prosecution by a Deputy County Attorney attesting to the sufficiency, under Arizona law, of the summarized evidence to support a conviction for first degree murder.

[86] Nothing in the findings of the extradition judge pursuant to the committal proceedings in Canada is inconsistent with the grand jury indictment, the warrant issued by the Superior Court in Arizona, or the certified opinion of the Deputy County Attorney.

IV

[87] I agree with Justice Doherty’s statement of the governing principle of law. Where there is no evidence before the Minister capable of supporting an undisputed and essential element of the offence for which extradition is sought, the Minister’s decision to surrender for that offence may well be unreasonable, absent some explanation.

[88] In this case, however, bearing in mind the elements I have mentioned and the discretion vested in the Minister, I cannot say he acted unreasonably in ordering the surrender of Mr. Fischbacher for trial in Arizona on a charge of first degree murder. As stated at the outset, I would therefore dispose of the appeal as Justice Charron suggests.

Appeal allowed.

Solicitor for the appellant: Attorney General of Canada, Toronto.

Solicitors for the respondent: Lafontaine & Associates, Toronto.