SUPREME COURT OF CANADA

Citation: Gavrila v. Canada (Justice), 2010 SCC 57, [2010] 3 S.C.R. 342

Date: 20101125

Docket: 33313

Between:

Tiberiu Gavrila

Appellant

and

Minister of Justice of Canada

Respondent

• and -

Amnesty International (Canada Section),

Québec Immigration Lawyers Association

and Canadian Civil Liberties Association

Interveners

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

Reasons for Judgment: (paras. 1 to 13)

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

Gavrila v. Canada (Justice), 2010 SCC 57, [2010] 3 S.C.R. 342

Tiberiu Gavrila Appellant

v.

Minister of Justice of Canada Respondent

and

Amnesty International (Canada Section),

Québec Immigration Lawyers Association

and Canadian Civil Liberties Association Interveners

Indexed as: Gavrila v. Canada (Justice)

2010 SCC 57

File No.: 33313.

2010: January 13; 2010: November 25.

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

on appeal from the court of appeal for quebec

Extradition — Surrender — Convention refugees — Principle of “non-refoulement” — Minister of Justice ordered extradition of Convention refugee to Romania — Whether Minister of Justice had legal authority to surrender for extradition refugee whose refugee status had not ceased or been revoked — If so, whether Minister reasonably exercised his authority to surrender — Extradition Act, S.C. 1999, c. 18, s. 44 — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 115.

Extradition — Surrender — Evidence — Burden of proof — Convention refugees sought for extradition — Statutory grounds justifying Minister of Justice’s refusal to make surrender order — Whether s. 44(1)(b) of Extradition Act makes risk of persecution mandatory ground of refusal of surrender — Whether Minister of Justice erred by imposing on refugees the burden of showing that they would suffer persecution if extradited — Extradition Act, S.C. 1999, c. 18, s. 44(1)(b).

G came to Canada in 2004 and successfully made a claim for refugee protection, alleging that he had been persecuted in Romania because of his ethnic origin and activities in a Roma advocacy association. The Romanian authorities later requested that G be extradited to serve a prison sentence on a conviction for forging visas. G had allegedly been convicted in Romania for participating in the forging of visas for two people in exchange for US$1,800. In 2008, the Minister of Justice ordered that G be extradited to his country of origin to serve his prison sentence. The Court of Appeal dismissed the application for judicial review.

Held: The appeal should be allowed and the matter remitted to the Minister of Justice for reconsideration.

For the reasons given in Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281, the Minister did not apply the correct legal principles given that at the time the