COURT FILE NO.: 40/16 DATE: 20160719 SUPERIOR COURT OF JUSTICE – ONTARIO (TORONTO REGION)
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 29 OF THE EXTRADITION ACT, S.C. 1999, c. 18, FOR AN ORDER COMMITTING JHOAN MANUEL CIPRIAN-GUZMAN TO AWAIT THE MINISTER’S DECISION ON WHETHER HE SHOULD BE SURRENDERED TO THE UNITED STATES OF AMERICA
RE: THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA, Applicant
- and - JHOAN MANUEL CIPRIAN-GUZMAN, Respondent
BEFORE: Justice Spies
COUNSEL: N. Dennison, for the Attorney General of Canada D. Guido, for the Respondent
HEARD: July 8, 2016
ENDORSEMENT – ORDER ON COMMITTAL
[1] The Attorney General, as authorized by the Minister of Justice (“Minister”), sought an order for the committal for extradition of Jhoan Manuel Ciprian-Guzman (“Mr. Guzman”). The Authority to Proceed (“ATP”) issued on April 20, 2016 by the Minister pursuant to s. 15 of the Extradition Act (“the Act”). On July 8, 2016, after hearing oral submissions from counsel representing the Attorney General and Mr. Guzman, I ordered the committal of Mr. Guzman into custody pursuant to s. 29 of the Act to await surrender for prosecution for the Canadian offence of possession of child pornography as set out in the ATP. In doing so I dismissed Mr. Guzman’s cross-application for a stay of the extradition proceedings pursuant to s. 7 and s. 24(1) of the Charter. I gave very brief oral reasons for my decision and advised counsel that I would provide written reasons.
The Issues
[2] Ms. Guido advised that the only defence to this application that Mr. Guzman wanted to raise was his cross-application. She stated that Mr. Guzman did not dispute that the test for committal as set out in ss. 29(1)(a) of the Act had been met, namely that the Mr. Guzman before the court is the person sought by the United States and there is evidence admissible under the Act of conduct, that had it occurred in Canada, would justify committal for trial in Canada on the offence of possession of child pornography, contrary to s. 163.1(4) of the Criminal Code.
[3] The evidence in support of the request for extradition is summarized and contained in the Record of the Case (“ROC”), which is certified to be available for trial and sufficient under the laws of the United States to justify prosecution. The evidence in the ROC complies with the evidentiary requirements of the Act and is presumptively admissible. In summary, a search warrant was executed at Mr. Guzman’s residence in the U.S. He was arrested at the time and admitted that he had been downloading and viewing child pornography for the past three months. A search of his computer revealed 13 files that contained child pornography. There is no doubt that the test for committal has been made out.
[4] Based on Mr. Guzman’s Notice of Application and the factum filed on his behalf, his position was that:
a) the punishment and/or treatment reasonably anticipated in the requesting state; Florida, is relevant and should be considered;
b) the surrender order should be refused pursuant to ss. 44(1)(a) of the Act and s. 7 of the Charter, on the basis that his extradition to Florida would be unjust or oppressive having regard to all of the relevant circumstances and would violate his s. 7 right to life, liberty and security of the person and the right not to be deprived thereof;
c) that assurances guaranteeing his safety cannot be made if the committal order is made.
[5] In her oral submissions, Ms. Guido reframed the Respondent’s application. She advised me that Mr. Guzman’s position is that as the extradition judge I have jurisdiction to stay this proceeding for an abuse of process on residual grounds, unrelated to the fairness of the hearing.
The Evidence Relied On by Mr. Guzman
[6] In support of his application, Mr. Guzman relied on two requests made to the Principal Deputy Assistant Attorney General of the U.S. Department of Justice to investigate conditions of Florida prisons; see Request for an Investigation Into the Use of Solitary Confinement in Florida's Prisons by the American Civil Liberties Union of Florida dated March 11, 2016 and Request for Criminal Rights of Institutionalized Persons Act Investigation into the Florida Department of Corrections by the American Civil Liberties Union of Florida dated October 15, 2015, as well as a newspaper article that discusses the prison conditions in Florida as cruel and unusual; see Deadly Abuse in Florida’s Prisons, a Miami Herald Investigation.
[7] Mr. Guzman also wanted to testify on the Charter application presumably to support the statement in the Respondent’s factum that he “reasonably fears for his safety and security if extradited to Florida and held pending trial within a Florida state prison or correctional centre”, but given my conclusion that I did not have jurisdiction to stay the extradition proceedings on this basis he did not testify.
[8] The particulars of that evidence relied upon by the Respondent are as follows:
Recently the American Civil Liberties Union of Florida requested an investigation under the Civil Rights of Institutionalized Persons Act on the grounds that immediate intervention of the federal government was required and necessary to ensure that these institutions operate in accordance with both their nation’s laws and with common dignity.
The deadly abuse sustained by inmates within Florida prisons has sparked widespread concern and further investigation. Recently, a number of articles and commentary have been written highlighting the culture of brutality within Florida state prisons, corruption, deplorable conditions, and violent and unconstitutional methods of punishment. The methods used within the general populations to “punish” prisoners are unacceptable.
These recent requests from the Civil Liberties Unions of Florida indicate that their data raised concern about both the extent to which confinement is used in Regional Detention Centres, the amount of cases where inmates have died while in solitary confinement and their belief that the abuses catalogued are just a fraction of the wrongs.
Florida Correctional Centres utilize various methods that violate Canadian law and constitutional principles. Torture and death by scalding, torture and death by starvation, excessive use of force and death due to excessive use of force, failure to protect from harm and death due to failure to protect from harm, denial of medical care and death due to denial of medical care, denial of mental health care and misuse of solitary confinement, and death of inmates held in solitary confinement, sexual assaults against inmates, staged suicides, and many unexplained deaths constitute just a small percentage of the deprivations that the American Civil Liberties Union of Florida are aware of. They suspect many go unreported and unaccounted for.
Analysis
[9] In her oral submissions Ms. Guido advised that she was not relying on s. 44(1)(a) of the Act any longer but that section is instructive as it sets out the jurisdiction of the Minister to refuse a surrender order. The section states:
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;
[10] Ms. Guido did not suggest that there was any unfairness with the actual conduct of the committal proceedings. She relied on United States of America v. Khadr, 2011 ONCA 358 at para. 47, leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 316, where the Court of Appeal cited R. v. Larosa (2002), 166 C.C.C. (3d) 449 (ON CA) at para. 52 with approval for the proposition that an extradition judge does have jurisdiction to stay a committal proceeding for an abuse of process on residual grounds, where “proceeding with committal proceedings would amount to an abuse of process or a breach of the principles of fundamental justice ….no matter how fairly that proceeding might be conducted.”
[11] In United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532 at para. 57, the Supreme Court of Canada held that the extradition judge may consider Charter breaches “that pertain directly to the circumscribed issues relevant at the committal stage of the extradition process”.
[12] As Ms. Dennison submitted, the potential future treatment and punishment that Mr. Guzman may face in Florida does not pertain to the issues relevant to the committal hearing but rather, is a matter for the Minister to consider. As explained by the Court of Appeal in United States of America v. Khadr, supra, at para. 40, the Minister and extradition judge have separate roles as it relates to Charter considerations and it is only where the stay is necessary to protect the fairness of the extradition hearing or the court’s integrity that the extradition judge may consider alleged Charter breaches. As the Court explained:
The division of responsibility between the Minister and the courts in relation to the application of the Charter and the common law jurisdiction to grant a stay of proceedings was dealt with in United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, and United States of America v. Kwok, [citation omitted]. Those cases hold that Charter issues which by their very nature arise only at the surrender stage - the s. 6 Charter right to remain in Canada and the s. 12 Charter right not to be subjected to cruel and unusual treatment or punishment - fall within the jurisdiction of the Minister, not the extradition judge. Cobb also holds that issues which by their very nature pertain to the committal stage - including the court's common law power to stay proceedings on grounds of abuse of process in order to protect the court's integrity - fall within the jurisdiction of the extradition judge, not the Minister. [Emphasis added]
[13] More recently in United States v. Lane, 2014 ONCA 506 at para. 45, the Court of Appeal explained that there must be a sufficient nexus between the alleged misconduct and the extradition hearing for the extradition judge to exercise her Charter jurisdiction to protect the integrity of the Court:
Further, an extradition judge's jurisdiction to consider Charter issues is not inherent; it flows from s. 25 of the Extradition Act, which gives the judge jurisdiction to consider Charter issues that "pertain directly to the circumscribed issues relevant at the committal stage of the extradition process": United States of America v. Kwok, [citation omitted] at para. 57. This means that where a stay of proceedings is sought, there should be "a nexus between the conduct alleged to constitute an abuse of process and the committal hearing itself": United States of America v. Khadr [citation omitted] at para. 45. Such a nexus has been found to exist where the evidence introduced at the committal hearing was obtained through the misconduct of the requesting state (Khadr), where threats or inducements are made to force the person sought to abandon the right to a committal hearing (United States of America v. Cobb, [2001] 1 S.C.R. 587, [2001] S.C.J. No. 20, 2001 SCC 19), and where the committal hearing itself was the result of misconduct by the requesting state (United States of America v. Tollman, [2006] O.J. No. 3672, 212 C.C.C. (3d) 511 (S.C.J.)). [Emphasis added]
[14] All of these cases; Khadr, Cobb and Tollman, are cases where the abuse of process occurred before the extradition hearing. Where the potential consequences to Mr. Guzman, if he is detained in a Florida prison or sentenced to serve time in one, only arise if the Minister orders his surrender to the United States, that is a matter for the Minister to consider, not the extradition judge. The Supreme Court has repeatedly held that the potential treatment (for example, cruel and unusual punishment) that a person may face if ordered surrendered is a relevant matter for the Minister to consider. As the Supreme Court of Canada explained in Kwok at para. 95:
Extradition judges should not pre-empt the executive with respect to those issues which fall under the Minister's responsibility under the Act. In this light, while the surrender-related ss. 6 and 12 issues must be first determined by the Minister, allegations of violations of other Charter rights are properly dealt with by the extradition judge, for example when the Charter infringements are related to the fair process of the extradition hearing itself.
[15] Ms. Guido was not able to bring any jurisprudence to my attention in support of her assertion that as the extradition judge I have authority to consider the potential sentence or treatment that may be imposed if Mr. Guzman is actually surrendered by the Minister. To the contrary, all of the jurisprudence cited by Ms. Dennison demonstrates that it is for the Minister to consider whether a particular sentence or treatment violates the Charter.
[16] Finally, Mr. Guzman’s concern that assurances guaranteeing his safety cannot be made if the committal is made out is incorrect. Section 40(3) of the Act provides that the Minister may seek assurances that she considers appropriate, which may include assurances to ensure that surrender of an individual does not violate the Charter. This provision further demonstrates the issues raised by Mr. Guzman should be considered by the Minister.
[17] For these reasons I concluded that I had no alternative but to order the committal of Mr. Guzman. Mr. Guzman has the right to make submissions to the Minister pursuant to s. 43(1) of the Act as to why she should decline to surrender him, or do so with conditions. His concerns about conditions in Florida prisons and his concern for his safety are matters for the Minister to consider.
Disposition
[18] For these reasons I dismissed Mr. Guzman’s cross-application and I ordered his committal into custody pursuant to s. 29 of the Act to await surrender for prosecution of the offence set out in the ATP.
[19] I advised Mr. Guzman, that pursuant to s. 38 (2) of the Act, he had 30 days from the date of committal; July 8, 2016, to apply for an appeal of my order of committal and to apply for bail; essentially for judicial interim release. I also advised him that during that 30-day period he also had the right, pursuant to s. 43(1) of the Act, to make submissions to the Minister as to whether she should decline to surrender him, or should surrender him with conditions.