2012 QCCA 1378, 2012 QCCA 1378

Unofficial English Translation Bouarfa c. Canada (Ministre de la Justice) 2012 QCCA 1378 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004991-111 DATE: August 1, 2012 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. NICHOLAS KASIRER, J.A. RICHARD WAGNER, J.A. ABDELHAKIM BOUARFA APPLICANT – Interested person v. MINISTER OF JUSTICE OF CANADA RESPONDENT – Decision maker JUDGMENT [ 1 ] On August 21, 2010, at the request of French authorities, the applicant Abdelhakim Bouarfa was arrested at Pierre Elliott Trudeau Airport as he was deplaning a flight arriving from Algiers.

He was then ordered to be committed pending the Minister of Justice of Canada's decision regarding his extradition to France. [ 2 ] The applicant was born in Morocco in 1957 and has both Canadian and Moroccan citizenship. [ 3 ] On July 26, 1993, the Tribunal de Grande Instance de Lyon convicted him of offences set out under French drug legislation, and more specifically, of the purchase, possession, sale, transfer, transport, and import of drugs and in associating or agreeing with a view to committing these offences.

He was sentenced to a fifteen-year prison term. [ 4 ] On June 24, 1996, the Tribunal de Grande Instance de Lyon also convicted him of transporting, possessing, purchasing and trafficking 3193 kg of cannabis resin and using a forged administrative document.

He was sentenced to a ten-year prison term. [ 5 ] In both cases, the trials leading to convictions and the sentencing hearings were conducted in absentia . [ 6 ] On March 21, 2008, Canada issued a provisional arrest warrant at the request of the French Republic. [ 7 ] On April 25, 2008, the applicant was arrested on Algerian soil by that country’s competent authorities. Pursuant to

article 12 of the Convention entre le Gouvernement de la République algérienne démocratique et populaire et la République française relative à l'exequatur et à l'extradition, signée à Paris le 29 Août 1964 [1] and at the request of the French authorities, the applicant was tried before a correctional tribunal of the Cour d'Alger for the offences on which the 1996 conviction was based. [ 8 ] The Canadian authorities were informed of the applicant's arrest in Algeria, and on October 14, 2008, they asked and obtained from the Honourable Mr.

Justice Brunton of the Superior Court the cancellation of the Canadian arrest warrant previously issued on March 21. [ 9 ] On October 26, 2009, the trial in Algeria, which was held before a jury, resulted in an acquittal by a majority vote. According to the applicant, this decision was upheld by the Supreme Court of Algeria on October 20, 2011. Despite the efforts of the applicant's Canadian counsel, that judgment was not filed into this Court's record.

That being said, the Minister does not question the existence or the content of the said judgment. [ 10 ] On November 2, 2010, by means of an Authority to Proceed, the Minister authorized the Attorney General of Canada to seek an order of committal against the applicant.

On November 22, 2010, the applicant agreed to his committal and the Honourable Madam Justice Charbonneau, sitting as extradition judge, ordered his committal into custody pending his upcoming extradition. [ 11 ] The French authorities informed the Minister that, despite the prosecution in Algeria, the French judicial authorities were free to continue the prosecutions until prescription was acquired. They also indicated that because the applicant had been convicted in absentia ,

if he contested these convictions, he would be entitled to a new trial. [ 12 ] After the Minister's request for additional information, the French authorities informed him that the sentence imposed in 1993 was not prescribed under French law. [ 13 ] On March 25 and June 6, 2011, the applicant presented his submissions to the Minister. [ 14 ] According to the applicant, the sentence imposed in 1993 is now prescribed in France, thus providing an automatic ground for refusal under subsection 46(1) of the Extradition Act . [2] He also fears that he will not be able to contest the 1993 conviction, which constitutes a discretionary ground for refusal under paragraph 47(

b) of the Act . He informed the Minister that he had received confirmation that, contrary to what the French authorities asserted, the facts giving rise to his 1993 conviction were disclosed to the Algerian authorities, which led him to believe that they failed to bring charges for these offences because they were prescribed. [ 15 ] He further claims that his acquittal in Algeria of the charges involved in the 1996 French conviction provides a discretionary ground for refusal under paragraph 47(

b) of the Act .

Finally, he characterizes the extradition proceedings brought by France against him as abusive, making his removal to France unfair or tyrannical. [ 16 ] In his July 6, 2011, decision—which is the subject of this application for judicial review—the Minister emphasized that the French authorities had advised him that if the applicant was returned to France and contested the convictions rendered in absentia connumaciam , he would be entitled to a new trial. [ 17 ] With respect to the issue of prescription of the 1993 sentence and the discrepancy between the applicant's view and the information given by the French authorities to the Minister, the Minister declared that he trusted the extradition partner’s position and thought that a French court would be better placed to interpret the French law. [ 18 ] As for the acquittal in Algeria and the 1996 conviction in France, the Minister noted that the Algerian verdict was not final, since it was appealed. [3] He also pointed out that the French authorities would not lose their jurisdiction until prescription was acquired.

Again, the Minister deemed it preferable for the plea of autrefois acquit to be raised before a French judge. He also pointed out that the offence with which the applicant was charged was committed in France, and that the evidence was still in France. In light of these facts, he deemed that there was no basis upon which to have the Algerian acquittal prevail over the French convictions. [ 19 ] The Minister also rejected the applicant's argument based on abuse of process.

He stated that he was not convinced there was evidence of bad faith on the part of the French authorities or, in the alternative, that this was a clear case of abuse of process. He was therefore convinced of the bona fides of the request for extradition. He was not of the opinion that the decision to extradite would be unfair or tyrannical and contrary to

section 7 of the Canadian Charter of Rights and Freedoms . [ 20 ] Finally, the Minister did not accede to the request to postpone his decision pending the outcome of the appeal from the acquittal. He ordered the applicant's extradition. [ 21 ] Following the Minister's decision, the applicant renewed his submissions on January 17 and 26, 2012, informing the Minister that the Supreme Court of Algeria had rendered judgment upholding the applicant's acquittal.

The Algerian acquittal thus being final, the applicant drew the Minister's attention to Article 5(2) of the Treaty Between the Government of Canada and the Government of the Republic of France which provides that if a person is convicted or acquitted by a final judgment in a third State (Algeria in this case) of the offence or offences for which extradition is requested, this may constitute a discretionary ground for refusing extradition. [ 22 ] The Minister responded, through counsel from the International Assistance Group, that he had already determined that the impact of the Algerian acquittal should be decided by the French trial court.

He did not respond to the argument he himself raised in his decision, to wit, the fact that the Algerian acquittal [ translation ] "is currently the subject of an appeal and it is therefore not a final judgment". [ 23 ] The Court is of the view that the applicant's arguments for the 1993 and 1996 convictions should be analyzed separately. (A) 1993 Conviction [ 24 ] The applicant's argument that the Minister's decision would be unreasonable or contrary to the principles of fundamental justice is without merit.

The standard of review of reasonableness applies to the Minister's decision, even if it is a question of assessing the constitutional rights of a fugitive. [4] The various subjects addressed by counsel for the applicant and the Minister during their exchanges about the prescription of the 1993 sentence and the possibility that the applicant could contest the 1993 conviction and obtain a new trial concern chiefly the

interpretation of the applicable French law. By deciding that the French trial court was better placed than the Minister to correctly decide these questions, the Minister acted reasonably. [ 25 ] The same may also be said of the applicant's argument that the Algerian acquittal of the 1996 French conviction included an acquittal of the 1993 French conviction.

Although it is true that the Algerian authorities had information about him that was furnished by the French authorities, it is nevertheless purely speculative to argue that the applicant was not officially prosecuted in Algeria for the offences related to this conviction because the Algerian authorities were of the opinion that prescription had been acquired in France. [ 26 ] Therefore, with respect to the 1993 French conviction, the applicant has no valid ground for judicial review to contest the Minister's decision. (B) 1996 conviction [ 27 ] The fact that the Supreme Court of Algeria upheld the acquittal for the 1996 French conviction raises more difficulties, principally because of the position expressed by the French Republic regarding the applicant's right to submit a plea of autrefois acquit

before the French courts. [ 28 ] On this issue, it is important to reproduce an except of the letter written by a representative of the French authorities to the Minister of Justice of Canada, which explains that, according to Cour de Cassation case law, the exception of foreign res judicata does not apply if the offence was allegedly committed on French soil, even when, as in this case, the foreign prosecution was instigated at the request of the French authorities: [ translation ] Conversely, and based on the French territorial jurisdiction established under

section 113-2 of the Penal Code, the Cour de Cassation has consistently asserted in its case law that the exception of foreign res judicata set out in

section 113-9 of the Penal Code and

section 692 of the Code of Penal Procedure cannot constitute a bar to prosecution if the events occurred on national soil. In a judgment dated March 17, 1999, affirmed by another judgment dated June 8, 2005, the Cour de Cassation indicated that when foreigners commit a crime in France and are convicted by final judgment in their own country for this offence, the prosecution in France is not thereby extinguished by res judicata .

It added that this principle should be applied even if the final foreign conviction is the result of an official disclosure of the facts by the French judicial authorities, since the official disclosure does not constitute a waiver by the requesting State to exercise its right to prosecute . The events included in the official disclosure to the Algerian authorities occurred in France.

Thus, pursuant to the particulars provided above , but subject to new elements and to the analysis of the French court that may hear the matter, it appears that in this case the principle of ne bis in idem does not constitute a bar to prosecution or to the enforcement of any new conviction that may be pronounced by the French authorities, in the event the interested party is remanded following the request for extradition and seeks a new trial. [Emphasis added.] [ 29 ] The Minister relies on Canada v.

Schmidt [5] to maintain that he was not even required to analyze the plea of autrefois acquit in the context of deciding the applicant's extradition to France. [ 30 ] Schmidt discusses the extradition to the United States of a Canadian citizen accused of violating an Ohio state statute by committing the offence of child abduction when a federal court had already acquitted her of the charge of kidnapping based on the same events, but brought under an American federal statute.

The Ohio state prosecution began on March 29, 1982, whereas the federal charges followed on March 31, 1982. [ 31 ] The Supreme Court majority, per La Forest J., [6] then applied a two-part test: first, it considered whether, setting aside the Canadian Charter of Rights and Freedoms , the exercise of the discretionary power set out in the Extradition Act required the plea of autrefois acquit [7] to be considered, and if not, whether the Charter rights required such an analysis. [8] [ 32 ] Dismissing all the grounds raised by Ms. Schmidt, the Supreme Court ordered her extradition.

Yet, several aspects of the applicant's file distinguish his situation from that of Ms.

Schmidt. [ 33 ] Even though the Minister has a great deal of leeway in extradition matters, "the Minister’s discretion is not absolute". [9] In Schmidt , for example, La Forest J. explains that to order an extradition, there must be "sufficient evidence of an alleged extradition crime to warrant the Government under its treaty obligations to surrender a fugitive to a foreign country for trial by the authorities there for an offence committed within its jurisdiction". [10] He finds, however, that it is not relevant at that stage to perform an in-depth examination of the pleas that might be raised in the context of a trial on the merits (for example, the plea of autrefois acquit), " unless, of course, the Act or the treaty otherwise provides ". [11] [ 34 ] On this subject, La Forest J. refers to the extradition treaty between Canada and Israel.

He writes: When states wish to provide for a defence of autrefois acquit in circumstances where the fugitive has already been tried in the requesting state, or elsewhere for that matter, they expressly provide for it; see, for example, the extradition treaty with Israel,

article 4, Canada Treaty Series 1969 , No. 25. [12] [ 35 ] This provision provides: [13]

ARTICLE 4 L’individu réclamé ne sera pas extradé : ...

b) S’il a déjà été jugé, acquitté ou puni, en quelque endroit que ce soit pour l’acte qui motive la demande d’extradition; ...

ARTICLE 4 A person claimed shall not be extradited if ... (

b) he has already been tried and acquitted or punished anywhere for the act for which his extradition is requested; ... [ 36 ] There is no similar provision in the extradition treaty between Canada and the United States of America. [14] The treaty between Canada and France, however, provides: [15]

5. L'extradition pourra être refusée: ... 2. si la personne réclamée a fait l'objet d'unjugement définitif de condamnation oud'acquittement dans un État tiers pour l'infractionou les infractions à raison desquelles l'extraditionest demandée ; ... [Emphasis added.] 5.

Extradition may be refused: ... 2. if the person sought was finally convicted oracquitted in a third State of the offence oroffences for which extradition is requested; ... [Emphasis added.] [37] Obviously, the use of the word "may" in the treaty between Canada and France indicates that this is a discretionary ground forrefusing extradition, not a mandatory one, as in the case of the treaty between Canada and Israel.

Yet, this discretionary power indicatesat the very least that an acquittal in a third State should merit increased attention in the context of an extradition to France as opposed tothe United States, as in Schmidt. This is doubtless the reason that, in this case, the Minister took to the time to explain why he did notintend to use this ground of refusal: [translation]

Section 5 of the Treaty provides that "[e]xtradition may be refused: 2. if the person sought was finally convicted or acquitted in a thirdState of the offence or offences for which extradition is requested", which confers upon me the discretionary power to refuse to extraditehad Mr. Bouarfa been acquitted in Algeria. Yet, in my opinion, it would not be appropriate to do so because of the reasons statedhereinafter. I was informed by the French authorities that the decision of the court in Algeria is currently being appealed; therefore, that decision isnot yet final.

Moreover, the French authorities have indicated that, notwithstanding the Algerian prosecution, France retains itsjurisdiction over the issue until prescription has been acquired and can therefore enforce the sentence given to Mr. Bouarfa.

In my view, the trial judge in France is best placed to examine whether the plea of autrefois acquit applies to the present case (Canada v.Schmidt, (SCC), [1987] 1 S.C.R. 500). [Emphasis added.] [38] Thus, in hearing an application for judicial review, the Court must determine whether this decision has the "qualities that makea decision reasonable" within the meaning of Dunsmuir v.

New Brunswick.[16] [39] In this respect, the Minister now admits, correctly, that the first ground he raised, the non-final nature of the Algerian court'sdecision, no longer stands. [40] The actual dispute therefore concerns his other grounds. These, however, seem to be contradictory. How can the Minister relyon the judgment of the French courts to rule on the plea of autrefois acquit, which the applicant seeks to invoke, when the Frenchauthorities have clearly indicated that the judgment of the Algerian court will have no bearing on the steps it intends to take?

One needonly read the excerpt of the letter from a representative of the French authorities, reproduced in paragraph [28], to conclude that theapplicant will be unable to raise the plea of autrefois acquit despite the Algerian acquittal. [41] In this context, the confidence expressed by the Minister that the applicant will be able to submit his plea of autrefois acquitbefore a French judge is without any real basis.

This confidence is unreasonable and this ground alone justifies the intervention of thisCourt. [42] But there is also the question of knowing whether the applicant's extradition could constitute a breach of his constitutionalrights. [43] On this point, it is important to remember that the Supreme Court, in Schmidt for example, considerably limited the scope ofCharter rights in extradition matters. Paragraph 11(

h) in particular, which constitutionalizes the plea of autrefois acquit, would not beapplicable since the person in question would not be "charged" in Canada, but abroad.[17] Also, while the right to stay in Canada, whichis protected under

section 6, is certainly affected by an extradition order, this violation will generally be justified under

section 1 of theCharter.[18] The analysis should therefore be carried out mainly under

section 7. [44] In Schmidt, La Forest J. points out that the power of extradition belongs to the executive, not the judiciary.

The courts shouldtherefore avoid judging the judicial system of Canada's partner states too harshly merely because they do not apply the same rules orbecause they operate differently.[19] In his view, the courts should be "extremely circumspect so as to avoid interfering unduly indecisions that involve the good faith and honour of this country in its relations with other states".[20] Thus, they should limit theirintervention to "cases of real substance",[21] that is to say to cases likely to shock the conscience.[22] [45] With respect to the requesting State taking into account prior judgments regarding the same facts, La Forest J. points out that weshould not "attempt to export our particular version of the technical pleas of autrefois acquit and res judicata to a foreign country".[23]That being said, he also indicates that the considerations underlying these defences may remain relevant to avoid a situation of

oppression. Indeed, he writes: Repeated attempts by the same prosecutorial authorities to prosecute a person for the same offence may , in certain circumstances, well amount to harassment sufficiently oppressive that surrender of such a person would violate those principles [24] [Emphasis added.] [ 46 ] As noted above, the Supreme Court refused to recognize that Ms. Schmidt's case could constitute such an oppressive situation.

Yet, a thorough analysis of the Court's reasons show that the applicant's case here could result in a different finding. [ 47 ] Indeed, the analysis performed by the Supreme Court in Schmidt seems closely tied to the context of the federal system in the United States and to the concurrent jurisdiction over criminal matters exercised by the states and the federal government. Thus, the differences between the constitutive elements of the federal offence for which a jury of the United States District Court acquitted Ms.

Schmidt and those of the Ohio State offence for which her extradition was sought seem to have been determinative. [25] Moreover, the fact that the prosecutors involved in these two instances were not the same and were "following their own paths" appears to have reassured La Forest J. that this was not a situation of harassment. [26] The prosecution in Algeria, however, was instigated against the applicant at the request of the French authorities and with their close collaboration. [27] In this context, the intention of the French authorities to have the applicant tried once again, despite the acquittal rendered at their request by the Algerian court, could well constitute a form of harassment within the meaning recognized by La Forest J. in the excerpt reproduced in paragraph [45]. [ 48 ] Such a finding is all the more justified in that, according to the French authorities, the applicant will have no real possibility of submitting any argument to the French courts raising res judicata or even abuse of process.

By contrast, in Schmidt , La Forest J. appears reassured by the fact that while the appellant does not have the possibility of arguing the Fifth Amendment of the United States Constitution, which establishes the plea of autrefois acquit, she nevertheless retains the right to raise the Fourteenth Amendment regarding the fairness of the proceedings to "prevent oppressive behaviour" by prosecutorial authorities. [28] By contrast, this ground does not appear to be available in France. [ 49 ] In this regard,

Section 6 of the European Convention on Human Rights, [29] which applies to France, is silent as to the pleas of autrefois acquit and abuse of process:

Article 6 – Right to a fair trial 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3.

Everyone charged with a criminal offence has the following minimum rights: a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; b. to have adequate time and facilities for the preparation of his defence; c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; e. to have the free assistance of an interpreter if he cannot understand or speak the language used in court. [ 50 ] Furthermore,

article 4 of Protocol No. 7 of this Convention [30] offers the protection of res judicata only in the same State:

Article 4 – Right not to be tried or punished twice 1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. [ 51 ] Thus, it appears that, absent additional assurances from the French authorities, with respect to the charges relating to the 1996 conviction, the applicant's extradition to France could constitute unlawful interference with his right to liberty and security guaranteed under

section 7 of the Charter . [31] [ 52 ] What remedy should the Court favour to take into account the duties of the Minister and the relationship between Canada and France? [ 53 ] Counsel for the applicant asks the Court to quash the order of surrender without even referring the file back to the Minister.

It is difficult to imagine, however, how France could undertake to let the applicant argue abuse of process or autrefois acquit (although it may not be impossible from a strictly political standpoint between the two countries) in spite of the state of French law as described by the French authorities in paragraph [28]. On the other hand, considering the dismissal of the grounds raised by the applicant with respect to the 1993 charges, it would be equally possible for the Minister to order the surrender of the applicant, but only for those actions which were not covered by the Algerian acquittal.

[ 54 ] In the end, it is up to the Minister and not this Court to decide. FOR THESE REASONS, THE COURT: [ 55 ] ALLOWS the motion for judicial review in part; [ 56 ] QUASHES the order of surrender dated July 6, 2011, with respect to the 1996 conviction; [ 57 ] REFERS the case back to the Minister of Justice of Canada so that, following the instructions of this Court, and as set out under paragraph 57(6) (

b) of the Extradition Act , he may receive confirmation from the French authorities that the applicant will have the opportunity of either submitting his arguments regarding res judicata or abuse of process with respect to the 1996 conviction to a French court or that he will be prosecuted only with respect to the 1993 conviction. ALLAN R. HILTON, J.A. NICHOLAS KASIRER, J.A. RICHARD WAGNER, J.A. Mtre Alexandre Bergevin Mtre Audrey-Bianca Chabauty BERGEVIN & ASSOCIATES For the applicant Mtre Ginette Gobeil Me Maguy Hachem MINISTER OF JUSTICE OF CANADA For the respondent Date of hearing: June 12, 2012