COURT FILE NO.: CR-18-90000121-00MO
DATE: 20191218
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Respondent
– and –
TENZIN NORBU a.k.a. TENZIN PASANG a.k.a. PASSANG TSERING a.k.a. SONAM SANGPO a.k.a. TENZIN NAMGYAL a.k.a. TENZIN LAMA, EJIRO EFEVWERHA a.k.a. ANDREW EJIRO EFEVWERHA a.k.a. FESTUS AKPOBOME, GREGORY HIBBERT ZONGTAO CHEN a.k.a. MARK CHEN
Applicants
Adrienne Rice, for the Respondent
Leo Adler and Sandra Kimberg, for the Applicants
HEARD: September 19 and 20, 2019
Ruling on the Constitutionality of ss. 2(2) and 3(2) of the Department of Justice Act, R.S.C. 1985 as it applies to the Extradition Act, S.C. 1999
B.P. O’Marra J.
Overview
[1] The four applicants are awaiting extradition hearings in the Superior Court of Justice in three Ontario Regions. Each of them is challenging the constitutionality of ss. 2(2) and 3(2) of the Department of Justice Act, R.S.C. 1985, c. J-2 (DOJA) insofar as it applies to the Extradition Act, S.C. 1999, c. 18. The four applicants specifically claim that the provisions of the DOJA that vests in a single elected individual the distinct roles and responsibilities of the Minister of Justice and the Attorney General unjustifiably infringes their s. 7 rights under the Charter of Rights and Freedoms and are therefore unconstitutional insofar as the DOJA is applicable to the Extradition Act. In other words, the applicants submit that it is “unconstitutional, and contrary to the Charter for the same elected politician, acting under authority of the Extradition Act, no matter what title is utilized, to be in charge of both the legal/prosecutorial (Attorney General) and the political (Minister of Justice) aspect of extraditing a person from Canada”. The applicants seek a declaration that the extradition process against the applicants should be declared null and void and of no effect.
[2] By Order dated April 30, 2019 Chief Justice Heather Smith appointed me pursuant to s. 551.7 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 to preside over the joint hearing of these cases at Toronto. Submissions are now complete. These are my Reasons.
[3] The DOJA in ss. 2(1) and (2) established the Department of Justice presided over by the Minister who is ex officio also the Attorney General of Canada. The Extradition Act in s. 2 defines each of the Attorney General of Canada and the Minister of Justice, unlike the former Extradition Act, R.S.C. 1985, c. E-23. The applicants submit that “Parliament would have no purpose in establishing the differing roles of the AG and Minister with the Extradition Act unless it meant for such positions to be manned by separate personages”. Based on that the applicants submit that the unification of those two positions into one by s. 2(2) of the DOJA constitutes a breach of s. 7 of the Charter and is thus unconstitutional.
[4] The respondent submits that this court is bound by the judicial precedent in Idziak v. Canada (Minister of Justice), 1992 CanLII 51 (SCC), [1992] 3 S.C.R. 631, 77 C.C.C. (2d) 65 that those respective roles can properly be exercised by the same person. The respondent further submits that the applicants have failed to meet the onus that rests with them to establish a breach of s. 7 of the Charter. Carter v. Canada (Attorney General), 2015 SCC 5 at para. 55.
Analysis
[5] The extradition process serves two important objectives: the prompt compliance with Canada’s international obligations to our extradition partners, and the protection of the rights of the person sought. The latter objective places important limits on when extradition can be ordered. M.M. v. United States of America, 2015 SCC 62 at para. 1.
[6] In M.M. at paras. 19-26 Justice Cromwell sets out a helpful summary of the three phases of the extradition process as follows:
• First Phase - Authority to Proceed. This decision is made by the Minister based on ss. 3(1)(a) and 15(1) of the Act.
• Second Phase - Judicial committal or discharge. The role of the judge is set out in s. 29(1)(a) and (3) of the Act. The requesting state must show there was evidence available for trial that would justify committal for trial in Canada for offences specified in the Authority to Proceed. The judge’s role is exhaustively defined in s. 29 of the Act. The constitutionality of the evidentiary provisions in the Act were confirmed in Ferras 2006 SCC 33 at paras. 53-54.
• Third Phase - Ministerial surrender or refusal. This phase “while subject to the requirements of the statute and the Charter is essentially political in nature.” Sections 44-47 inclusive of the Act refer to the bases on which the Minister may or must refuse surrender. The Minister must refuse surrender “if the surrender would be unjust or oppressive having regard to all the circumstance.” This would include information and factors that are irrelevant at the committal stage.
[7] Counsel for the applicants have stressed and contrasted the limited role of the judge at the committal stage with the authority of the Minister at the first and third stages. However, that fails to consider the much broader role in the overall process of an independent judiciary including appeals and reviews. Section 49 of the Act allows a person to appeal an order of committal to the Court of Appeal. Section 57 of the Act permits a judicial review by the Court of Appeal of a surrender order by the Minister.
[8] In Idziak a warrant for committal was issued after the extradition hearing. The appellant applied under s. 25 of the former Extradition Act, R.S.C. 1985, c. E-23 to have the Minister of Justice refuse to exercise his discretionary authority to surrender him to the U.S. authorities. The Minister advised that there were no grounds to justify a refusal to surrender him and signed the warrant of surrender. Counsel for the appellant learned of an internal memorandum that the Minister reviewed before his decision. The appellant requested but was denied a copy of that memorandum. The appellant then applied to the Supreme Court of Ontario for a writ of habeas corpus with certiorari in aid to set aside the warrant of surrender on the ground that the Minister had denied his rights to fundamental justice guaranteed by s. 7 of the Charter. That application was dismissed, as was an appeal.
[9] A further appeal to the Supreme Court of Canada specifically dealt with the alleged breach of s. 7 of the Charter as follows:
• The court referred to Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500 that held that s. 7 of the Charter applied to extradition proceedings: para. 46.
• The decision of the Minister to issue a warrant of surrender must be exercised in accordance with the principles of fundamental justice: para. 48.
• The principles of fundamental justice refers to substantive and procedural rights: para. 49.
• The extradition process has two distinct phases. The first, the judicial phase, encompasses the court proceedings which determine whether a factual legal basis for extradition exists. If that process results in issuance of a warrant of committal then the second phase is actuated. There the Minister exercises his or her discretion in determining whether to issue a warrant of surrender. The first decision-making phase is judicial in its nature and warrants the application of the full panoply of procedural safeguards. By contrast the second decision-making process is political in its nature. The Minister must weigh the representation of the fugitive against Canada’s international treaty obligations: para. 534.
[10] The court in Idziak specifically addressed the issue of an alleged institutional bias relating to the dual roles allotted to the Minister at paras. 54-58 inclusive:
Parliament chose to give discretionary authority to the Minister of Justice. It is the Minister who must consider the good faith and honour of this country in its relations with other states. It is the Minister who has the expert knowledge of the political ramifications of an extradition decision. In administrative law terms, the Minister's review should be characterized as being at the extreme legislative end of the continuum of administrative decision-making.
The appellant contends that a dual role has been allotted to the Minister of Justice by the Extradition Act. The Act requires the Minister to conduct the prosecution of the extradition hearing at the judicial phase and then to act as adjudicator in the ministerial phase. These roles are said to be mutually incompatible and to raise an apprehension of bias on their face. This contention fails to recognize either the clear division that lies between the phases of the extradition process, each of which serves a distinct function, or to take into account the separation of personnel involved in the two phases.
It is correct that the Minister of Justice has the responsibility to ensure the prosecution of the extradition proceedings and that to do so the Minister must appoint agents to act in the interest of the requesting state. However the decision to issue a warrant of surrender involves completely different considerations from those reached by a court in an extradition hearing. The extradition hearing is clearly judicial in its nature while the actions of the Minister of Justice in considering whether to issue a warrant of surrender are primarily political in nature. This is certainly not a case of a single official's acting as both judge and prosecutor in the same case. At the judicial phase the fugitive possesses the full panoply of procedural protection available in a court of law. At the ministerial phase, there is no longer a lis in existence. The fugitive has by then been judicially committed for extradition. The Act simply grants to the Minister a discretion as to whether to execute the judicially approved extradition by issuing a warrant of surrender.
It is significant that the appellant's argument has already been rejected by this Court in United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469. At page 1500, La Forest J. noted:
... I find the argument that the fact that the executive discretion to refuse surrender and the duty to present requests for extradition in court, both fall within the responsibilities of the Minister of Justice, somehow create an unacceptable conflict to have no merit.
I agree with this comment. Certainly the arrangement could not raise apprehension of bias in a fully informed observer. The appellant's allegation of institutional bias must fail.
[11] In USA v. Monsalve, [1993] O.J. No. 1180 (Gen. Div.) the applicant sought an order removing any counsel from the Department of Justice as counsel for the requesting state. The stated grounds for this were that any such counsel would be in a position of conflict of interest and that the applicant had a reasonable apprehension of bias if any such staff member was permitted to act for the requesting state at the judicial phase of the extradition hearing. The court referred to Idziak and dismissed this application, including the following at para. 10:
More fundamentally, it is my view that the Idziak case, supra, defines for all purposes the separate and distinct functions of judge and minister. When the first phrase is totally finished, the second phase commences. Either staff counsel or an agent can represent the requesting state. Their role in that function ends when the fugitive is ordered extradited and the judicial report is sent to the Minister. A completely separate role exists for the Minister and his or her advisors which is not judicial in nature. It becomes irrelevant that the same person is involved as counsel in both phases. Each may be considered a separate brief, which may involve one counsel or two separate counsel.
[12] In dismissing the appeal at [1994] O.J. No. 1099 the court made clear that Idziak was the governing authority on this issue at para. 4:
Throughout both branches of his argument, counsel for the appellant objected that the extradition proceedings at all stages were conducted by counsel employed by the Attorney General of Canada. It is clear, however, that this issue has been resolved against the appellant by Idziak v. Minister of Justice et al. (1992), 1992 CanLII 51 (SCC), 77 C.C.C. (3d) 65 (S.C.C.).
[13] In Philippines (Republic) v. Pacificador, 1998 CanLII 14777 (ONSC) the applicant on an extradition case submitted that an appearance of bias arose whenever counsel from the Department of Justice’s International Assistance Groups failed to restrict their involvement to the ministerial stage. In rejecting this argument at para. 7 Justice Dambrot referred to the ruling in Idziak “that the distinct nature of the two phases of the extradition process permits the Minister to perform his two roles without an apprehension of bias arising.”
[14] Counsel for the applicants submitted that the very fact that the Minister is also an elected official and member of the Cabinet is inconsistent with the proper role of prosecutor. This issue was addressed in R. v. Cawthorne, 2016 SCC 32. That case involved the issue of the authority of the Minister of National Defence to appeal from decisions of a Court Martial or the Court Martial Appeal Court under the National Defence Act, R.S.C. 1985, c N-5.
[15] In Cawthorne the court addressed the constitutional obligation of a prosecutor, “whether he be an Attorney General, a Crown Prosecutor, or some other public officer exercising a prosecutorial function, to act independently of partisan concerns and other improper motives.” The court drew the important distinction between “partisan” and “political” related to a Minister’s membership in Cabinet at paras. 27, 28, 31 and 32:
I emphasize that the scope of “partisan” in this context is narrow. “Partisan” is not broadly synonymous with “political”. An Attorney General — like other public officials exercising a prosecutorial function — is a “protector of the public interest”: Sterling and Mackay, at p. 179. As L’Heureux-Dubé J. explained in Power, at p. 616:
… the Attorney General is a member of the executive and as such reflects, through his or her prosecutorial function, the interest of the community to see that justice is properly done. The Attorney General’s role in this regard is not only to protect the public, but also to honour and express the community’s sense of justice. Accordingly, courts should be careful before they attempt to “second-guess” the prosecutor’s motives when he or she makes a decision.
Decisions to prosecute (or to not prosecute) can have broad social repercussions, and regard for those repercussions properly informs prosecutorial discretion: Sterling and Mackay, at p. 179; Rosenberg, at pp. 821-22, fn. 24. It is not open to a court to scrutinize this exercise of discretion, or to question a prosecutor’s particular conception of the public interest. A government policy of strict prosecution of certain offences, if motivated by concerns for the public interest, does not offend s. 7. It is only when the considerations underlying a prosecution are partisan — that is, when a prosecutor acts not for the public good, but “for the good of the government of the day” — that a court’s intervention is warranted: Sterling and Mackay, at p. 179, citing I. Scott, “Law, Policy, and the Role of the Attorney General: Constancy and Change in the 1980s” (1989), 39 U.T.L.J. 109, at p. 121.
There is no evidence of any improper prosecutorial conduct in the cases before us. But the respondents say such evidence is unnecessary. In their view, the principle of prosecutorial independence requires both that a prosecutor be independent and that a reasonable person perceive him or her as independent. The Minister, they say, is independent neither in fact nor in appearance. They emphasize that the Minister is a member of Cabinet not bound by the conventions of independence that apply to the Attorney General, and that the Minister’s “quasi-judicial” role is incompatible with his control and administration of the Canadian Forces. Accordingly, the respondents argue that the law’s conferral on the Minister of authority over appeals in the military justice system violates s. 7 of the Charter.
I cannot agree. The Minister, like the Attorney General or other public officials with a prosecutorial function, is entitled to a strong presumption that he exercises prosecutorial discretion independently of partisan concerns. The mere fact of the Minister’s membership in Cabinet does not displace that presumption. Indeed, the law presumes that the Attorney General — also a member of Cabinet — can and does set aside partisan duties in exercising prosecutorial responsibilities. There is no compelling reason to treat the Minister differently in this regard.
[16] The applicants seek to distinguish Idziak by noting it was decided under the predecessor to the current Extradition Act. The DOJA was in force at the time Parliament legislated the new Extradition Act. Parliament is presumed to know the law. R. v. Jarvis, 2019 SCC 10 at para. 56. There was no explicit provision that would remove the Extradition Act from the DOJA.
[17] Federal Republic of Germany v. Schreiber, [2000] O.J. No. 2618 involved proceedings under the new Extradition Act of 1999. Justice Watt referred to jurisprudence under the predecessor statute at para. 53:
The new Extradition Act, S.C. 1999, c. E-18, which came into force on June 17, 1999, as well as the Treaty between Canada and Germany govern these proceedings. There is much to be learned, however, from existing jurisprudence. No one suggests that its precedential value ceased or was significantly diminished upon the proclamation of the new Act.
[18] Common law courts are bound by authoritative precedent. Subject to extraordinary exceptions, a lower court must apply the decisions of higher courts to the facts before it. R. v. Comeau, 2018 SCC 15 at paras. 26-35.
[19] Notwithstanding the very able presentation and submissions by counsel for the applicants in my view the decision in Idziak is dispositive of the issues raised and binding on this court.
RESULT
[20] The applications are dismissed.
B.P. O’Marra J.
Released: December 18, 2019
COURT FILE NO.: CR-18-90000121-00MO
DATE: 20191218
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Respondent
– and –
TENZIN NORBU a.k.a. TENZIN PASANG a.k.a. PASSANG TSERING a.k.a. SONAM SANGPO a.k.a. TENZIN NAMGYAL a.k.a. TENZIN LAMA, EJIRO EFEVWERHA a.k.a. ANDREW EJIRO EFEVWERHA a.k.a. FESTUS AKPOBOME, GREGORY HIBBERT ZONGTAO CHEN a.k.a. MARK CHEN
Applicants
Ruling on the constitutionality of ss. 2(2) and 3(2) of the department of justice act, R.S.C. 1985 as it applies to the extradition act, S.c. 1999
B. P. O’MARRA J.
Released: December 18, 2019