2015 QCCA 1172, 2015 QCCA 1172

Unofficial English Translation Provost v. Attorney General of Canada (United States of America) 2015 QCCA 1172 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005578-149 DATE: June 25, 2015 CORAM: THE HONOURABLE JULIE DUTIL, J.A. GUY GAGNON, J.A. MARIE ST-PIERRE, J.A. MARCEL RENÉ PROVOST Plaintiff – interested person v.

ATTORNEY GENERAL OF CANADA on behalf of the UNITED STATES OF AMERICA Respondent – decision maker JUDGMENT [ 1 ] The plaintiff seeks the judicial review of the decision of the Minister of Justice of Canada [1] (the “Minister”), who ordered his extradition to the United States of America to serve a sentence of five years’ imprisonment imposed in 2007. At that time, he had pled guilty to a charge of a sexual nature against an adolescent. The enforcement of his sentence, however, was suspended at the time it was imposed on the condition that he respect conditions equivalent to a probation order.

Facts and legal proceedings [ 2 ] On March 12, 2007, a grand jury of the State of Virginia filed an indictment charging the plaintiff with having touched a minor in a sexual manner. On April 23, 2006, he allegedly had sexual relations with a friend’s son . [2] [ 3 ] On May 30, 2007, the plaintiff pled guilty to the offence set out at

section 18.2-63 of the Virginia Code (carnal knowledge of a minor). [3] [ 4 ] On July 18, 2007, a court of the State of Virginia sentenced him to five years’ imprisonment. As mentioned, the enforcement of this sentence was suspended on the condition that he comply with an order equivalent to a probation order.

In particular, he was required to meet regularly with a probation officer and to follow a treatment program for sex offenders. [4] The court authorized him to serve his sentence in Canada . [5] [ 5 ] On August 9, 2007, the plaintiff filed a motion with the court for permission to return to Canada temporarily. [6] It was dismissed.

The plaintiff was thus required to remain in the United States under the supervision of his probation officer until the details of his transfer to Canada were worked out, and he was authorized to leave the country. [7] [ 6 ] Despite this order, the plaintiff left Virginia on or around August 12, 2007, and settled in Montreal. [8] He contacted his probation officer on August 16, 2007, and informed him that he was no longer in the United States.

He did not plan to return. [9] [ 7 ] On August 21, 2007, the plaintiff’s probation officer filed a report in which he alleged that the plaintiff had violated his probation by failing to attend a meeting scheduled for August 15, 2007, during which they were supposed to fill out the forms required by the Canadian authorities so that the plaintiff could serve his sentence in Canada.

The probation officer suggested that the suspension of the sentence imposed on the plaintiff be revoked. [10] [ 8 ] On August 22, 2007, the suspension of the sentence was revoked by a Virginia court, and an arrest warrant was issued against the plaintiff. [11] It was only on October 31, 2013, however, that the U.S. authorities, invoking

article 9 of the Treaty on Extradition

Between the Government of Canada and the Government of the United States of America [12] (the “Treaty”), requested the extradition of the plaintiff so that he could serve his sentence in the United States. [13] [ 9 ] On January 15, 2014, the plaintiff was arrested in accordance with an arrest warrant issued pursuant to

section 16 of the Extradition Act [14] (the “Act”) . [ 10 ] On February 7, 2014, Hélène Di Salvo J. of the Superior Court ordered the plaintiff’s committal for the purposes of his surrender. [15] The order was not appealed. [ 11 ] On March 20 and April 24, 2014, the plaintiff made submissions to the Minister in accordance with

section 43 of the Act . [16] He submitted that his surrender would violate his constitutional rights guaranteed by the Canadian Charter of Rights and Freedoms (the “Charter”). [17] On August 25, 2014, [18] the Minister ordered the plaintiff’s surrender. [ 12 ] On September 10, 2014, in accordance with

section 57 of the Act , the plaintiff filed an application for judicial review of the order of surrender. [ 13 ] On September 24, 2014, François Doyon J. ordered the plaintiff’s release during the review process. [19] He was released on September 26, 2014.

The Minister’s decision [ 14 ] The Minister emphasized that the exercise of his discretionary power to refuse to make a surrender order can only be justified by compelling reasons related to specific provisions of the Act and the Treaty , or by the fact that the surrender would be contrary to the principles of fundamental justice guaranteed by the Charter . [ 15 ] The Minister responded to each of the arguments raised by the plaintiff. [ 16 ] First of all, he submitted that the U.S. authorities did not act abusively with respect to the representations made when the guilty plea agreement was reached.

He came to the same conclusion with respect to their use of evidence that was admitted to be false and the prejudicial effect that the plaintiff’s Canadian nationality had on his sentence. In the Minister’s view, the plaintiff’s surrender would not be unjust for these reasons and would not violate the principles of fundamental justice guaranteed under

section 7 of the Charter . [ 17 ] The Minister then considered the plaintiff’s argument that the time that had passed between his sentencing and the extradition request was abusive. He concluded that there were reasons explaining the delay and that it did not cause the plaintiff any prejudice.

Section 7 of the Charter was not infringed. [ 18 ] The Minister verified the extradition file’s compliance with the requirements set out at

section 33 of the Act . The plaintiff submitted that the actions having resulted in his guilt were not correctly described, as they did not include the victim’s admission that he had initiated the sexual touching. The Minister dismissed this argument. The contents of the file were not contested before Di Salvo J., and nothing suggests that the U.S. authorities failed to include certain information. [ 19 ] The Minister also dismissed the argument that there was an error in the authority to proceed. Under paragraph 15(3)(

c) of the Act , the authority to proceed must contain 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. According to the plaintiff, the offence under

section 151 of the Criminal Code does not correspond to that under

section 18.2-63 of the Virginia Code for which he was convicted because the victim was fourteen years old at the time of the events. In 2006, when the conduct occurred,

section 151 of the Criminal Code applied only to victims under the age of fourteen years. [ 20 ] The Minister explained that pursuant to subsection 29(4) of the Act , the provisions in force when the authority to proceed is issued are those on which any analysis of its compliance must be based.

Section 151 of the Criminal Code therefore corresponds to the acts committed by the plaintiff in Virginia. [ 21 ] The Minister examined the plaintiff’s personal circumstances and concluded that they did not render his surrender unjust. [ 22 ] Finally, the Minister explained in detail the “civil commitment” procedure in order to verify whether it is consistent with the principles of fundamental justice guaranteed under

section 7 of the Charter . He submitted that the Charter afforded sufficient procedural guarantees to protect the plaintiff’s rights. He also stated that, in his view, the plaintiff was an unlikely candidate for this type of procedure. It was his first criminal offence, and he was given a suspended sentence of imprisonment. Analysis [ 23 ] The plaintiff seeks the review of the Minister’s decision. He submits that the extradition sought violates his rights under

section 7 of the Charter and that it would be unjust or oppressive (

section 44 of the Act ). [ 24 ] Before we consider the grounds of appeal raised by the plaintiff, it is relevant to recall the Court’s standard of review in such matters. [ 25 ] In a recent judgment, the Supreme Court reiterated that the Court must determine the reasonableness of the Minister’s decision by examining the Minister’s assessment of the various elements to establish whether the person’s surrender violates “the principles of fundamental justice guaranteed by

section 7 of the Canadian Charter of Rights and Freedoms so as to [ translation ] ‘shock the conscience’ or otherwise be ‘unjust or oppressive’ under s. 44(1) of the Extradition Act , S.C. 1999, c. 18.” [20] [ 26 ] In extradition matters, the Court must show great deference to the Minister’s decision, as it is political. In Canada v. Schmidt , the Supreme Court noted : [21]

What has to be determined is whether or not, in the particular circumstances of the case, surrender of a fugitive for a trial offends against the basic demands of justice. In determining that issue, the courts must begin with the notion that the executive must first have determined that the general system for the administration of justice in the foreign country sufficiently corresponds to our concepts of justice to warrant entering into the treaty in the first place, and must have recognized that it too has a duty to ensure that its actions comply with constitutional standards.

Blind judicial deference to executive judgment cannot, of course, be expected. The courts have the duty to uphold the Constitution. Nonetheless, this is an area where the executive is likely to be far better informed than the courts, and where the courts must be extremely circumspect so as to avoid interfering unduly in decisions that involve the good faith and honour of this country in its relations with other states.

In a word, judicial intervention must be limited to cases of real substance . [Emphasis added] [ 27 ] How do these principles apply to the present case? [ 28 ] The main argument of the plaintiff is that the Minister erred in concluding that it was not necessary to ask the U.S. authorities to provide assurances that he would not be subject to the “civil commitment” procedure if he was surrendered. He submits that this procedure, which is civil in nature, violates sections 7 , 11(

h) and 12 of the Charter because its application is based on overly subjective criteria and can lead to indeterminate periods of detention. In support of this argument, he filed a decision of the High Court of Justice of England and Wales, [22] which refused the surrender of a person because of the real risk that the person would be subject, in Minnesota, to the “civil commitment” procedure. According to the English Court, there was a risk that the person’s rights, guaranteed by

article 5 of the European Convention on Human Rights , would be violated. [ 29 ] The “civil commitment” procedure is set out under sections 37.2-900 to 37.2-921 of the Virginia Code . The Minister asked the U.S. authorities for further details in this regard and explained the procedure in detail. He took into account the fact that it is not a penal procedure: [23] I also note that, although civil commitment is not a penal consequence, it could nevertheless be an indirect consequence of extradition.

Therefore, the possibility that a person sought for extradition could be subject to such proceedings is a relevant consideration in the exercise of my discretion. [ 30 ] He was, moreover, of the opinion that this type of procedure exists in Canada in provincial mental health legislation, which provides that a person suffering from mental health problems may be detained in an institution.

Such procedures have not been found contrary to the Charter as they include procedural guarantees. [ 31 ] The Minister also stated that, in his view, it is unlikely that the plaintiff will be subject to such a procedure since he was given a suspended five-year sentence for the offence committed and efforts had been made to transfer him to Canada. He stated: [24] Finally, l am mindful of the fact that Mr. Provost received a suspended 5-year sentence for the offence at issue, and that active efforts were being made to seek a transfer of his probation to Canada.

This suggests to me that there is a low probability that he would be a valid candidate for civil commitment in Virginia. As indicated above, "sexually violent predator" includes any person who "because of a mental abnormality or personality disorder, finds it difficult to control his predatory behaviour, which makes him likely to engage in sexually violent acts". Based on the information before me at this time, it does not appear that Mr.

Provost, who is a first-time offender and who was sentenced to probation, would likely meet these criteria. [ 32 ] The Court is of the opinion that this ground of appeal must be dismissed.

The civil commitment procedure includes the following guarantees: ▪ The right to be represented by counsel throughout the proceedings (§ 37.2-906(C)); ▪ A preliminary hearing before a judge sitting alone to determine whether probable cause exists to believe that the person is a sexually violent predator (§ 37.2-906(E)); ▪ The right to have an expert testify to counter the evidence adduced by the Attorney General and the right to file the expert’s report into evidence (§ 37.2-907(

A) et § 37.2-915); ▪ The right to a trial by jury (§ 37.2-908(B)); ▪ The right to appeal the decision ordering civil commitment or conditional release; [25] ▪ Yearly judicial review hearings for the first six years of commitment and every two years after that (§ 37.2-910(A)); ▪ The burden of proof rests with the Attorney General to prove by clear and convincing evidence that the person is a sexually violent predator (§ 37.2-910(C)); ▪ At any time, the Commissioner of the Behavioral Health and Developmental Services Department may petition the court for the conditional release of a person whom the Commissioner believes is no longer in need of secure inpatient treatment or the unconditional release of a person whom the Commissioner believes is no longer a sexually violent predator (§ 37.2-911(A)); ▪ The committed person may petition the court for conditional release once a year in a year where no annual judicial review is planned (§ 37.2-911(A)); ▪ The right of the person to obtain prior notice of a hearing (§ 37.2-901); ▪ The right of the person to remain silent or to testify (§ 37.2-901); ▪ The right of the person to be present during hearings (§ 37.2-901);

▪ The right of the person to present evidence and to cross-examine witnesses (§ 37.2-901); ▪ The right of the person to examine all petitions and reports in the court file (§ 37.2-901). [ 33 ] It appears from his decision that the Minister carefully considered what this procedure consists of and obtained details in this regard from the U.S. authorities. His decision is reasonable. [ 34 ] The decision of the High Court of Justice is based on facts that can be distinguished from the present matter.

Moreover, the law in effect in Minnesota when the English court ruled on the issue appears different from that in Virginia, which provides procedural guarantees. [ 35 ] Furthermore, the Court shares the Minister’s opinion that it is unlikely that the plaintiff will be subject to civil commitment. The fact that the plaintiff took refuge in Canada does not change the nature of the offence or the fact that he had no prior criminal record. When the plaintiff was sentenced in July of 2007, the court ruled that he could be released and even serve his sentence in Canada.

His conduct was certainly not considered dangerous by the U.S. authorities at that time. Nothing seems to have changed in this regard as it appears from the file that the plaintiff has lived a quiet life and respected the law since his return to Canada. He has managed to shoulder his obligations and take care of his young son. It would be surprising if he could now be considered a “sexually violent predator” within the meaning of the Virginia Code . [ 36 ] The plaintiff also submits that the six-year gap between his conviction and the extradition request presented by the United States is abusive.

The U.S. authorities have been aware of his address in Montreal since 2007. In his view, this reflects the lack of seriousness of their efforts. This abuse of process renders his extradition unjust or oppressive. [ 37 ] The plaintiff does not benefit from the protection of paragraph 11(

b) of the Charter because he was not accused in Canada. The guarantee available to him is the one under

section 7 of the Charter , as already mentioned. The time period, which is allegedly attributable to the U.S. authorities, must constitute an abuse of process and have caused prejudice to give rise to the guarantee provided by

section 7. In Brunton-Guérard v. Canada (Minister of Justice) , [26] this Court aptly summarized the state of the law on this issue: [29] First,

section 11(

b) of the Canadian Charter does not apply to extradition proceedings, nor did the applicant rely on

section 11(

b) in his submissions to the Minister. Reliance may, however, be placed on

section 7, as the Minister's decision acknowledges, but only if the fugitive's rights to fairness of the proceedings and fundamental justice have been compromised by the involvement of Canadian authorities.

Here, the major delays were not occasioned by Canadian authorities. [30] Moreover, as the Minister correctly pointed out in his decision: As well, the Charter does not apply to the actions or failure to take action on the part of our extradition partner, nor is the Charter to be used to reprimand our extradition partner for its delay in requesting extradition. [31] The Minister then quoted the following extract from the reasons of McLachlin, J., as she then was, on behalf of the majority in United States v.

Kindler : This Court has emphasized that we must avoid extraterritorial application of the guarantees in our Charter under the guise of ruling extradition procedures unconstitutional. [32] In addition, he pointed out, again correctly, that the only types of delay that might give rise to a Charter violation would be those that amounted to an abuse of process. … [36] Moreover, the mere fact of delay, standing alone, is insufficient to give rise to a valid Canadian Charter claim, since there must also be prejudice shown arising out of the delay.

No such prejudice has been shown here. [References omitted] [ 38 ] The Minister considered the plaintiff’s arguments in light of the case law and applicable rules. He asked the U.S. authorities for explanations and concluded that the time they took to request the plaintiff’s extradition did not constitute an abuse of process. Moreover, according to the Minister, there is no evidence of prejudice.

These conclusions are reasonable, and the Court is of the opinion that this ground must fail. [ 39 ] In his factum, the plaintiff also submits that the Minister erred by not accepting the following arguments: • The conduct of the U.S. authorities is abusive in regard to the guilty plea; • The conduct of the U.S. authorities is abusive because they refused to consider the victim’s admission that he lied when filing his complaint; • The personal situation of the plaintiff is such as to render his surrender unjust or oppressive. [ 40 ] These grounds of appeal are also dismissed. [ 41 ] The plaintiff first submits that he pleaded guilty because he thought that his sentence could be served in Canada.

He claims to have been misled in this regard. [ 42 ] On this issue as well, the Minister obtained information from the U.S. authorities before making his decision. He explained the following, among other things: [27]

The USDOJ has also advised that after Mr. Provost received his sentence on July 18, 2007, he reviewed the probation order with his Probation Officer. Mr. Provost indicated, in writing, his understanding of the terms and conditions of probation and his agreement to comply with same. Among the conditions imposed by the Probation Officer were, inter alia , that Mr. Provost not change his residence without permission; not leave the State of Virginia without permission; and not abscond from supervision. l am further advised that ongoing discussions between Mr.

Provost's U.S. attorney and the Virginia Department of Corrections took place regarding the viability of transferring Mr. Provost's probation to Canada. In this regard, l note that the Virginia Court stated the following at the time that Mr. Provost was sentenced: "Whereas, the defendant is recommended for approval of transfer to Canada, the court authorizes the transfer of probation to Canada." l understand that, on August 9, 2007, while discussions were underway regarding the possible transfer of probation to Canada, Mr. Provost brought a motion seeking a pass to temporarily return to Canada.

His motion was denied, and the Probation Officer advised the sentencing judge that the transfer of probation might not be possible. Nevertheless, the Probation Officer ordered Mr. Provost to report to him on August 15, 2007 to assist in preparing the documentation required to seek a transfer of sentence. However, Mr. Provost never reported. It is my further understanding that, on August 16, 2007, Mr.

Provost contacted the Probation Officer to advise that he had moved to Canada with no intention of returning to Virginia and that if the United States "wanted to spend thousands of dollars", they could seek his extradition. Based on a review of the materials before me, I am satisfied that there is no evidence of abusive conduct by the U.S. authorities that might warrant a refusaI of Mr. Provost's surrender. While it is clear that the U.S. judge, the prosecutor, Mr. Provost's defence counsel and the Probation Officer were in ongoing discussions on the viability of having Mr.

Provost serve his probation in Canada, there is no information before me to support his claim that he was misled by the U.S. authorities on this issue. His plea agreement dated May 30, 2007 makes no reference to the proposed transfer. In addition, I note Ms. Stanton's statement in her affidavit that, while she and the U.S. prosecutor supported the transfer of Mr. Provost' s sentence to Canada, the Virginia judge was not amenable to this at the outset. [ 43 ] The plaintiff filed a declaration under oath prepared by his U.S. attorney, Mtre Jennifer T. Stanton, in support of his submissions.

Nowhere does she mention that an agreement for the immediate transfer to Canada had been reached. There had been discussions on the possibility of such a transfer, but no more. The Virginia Court could not, alone, authorize the plaintiff’s transfer to Canada. The consent of Canadian authorities was required. Even if we accepted the plaintiff’s argument that the U.S.

Court exceeded its jurisdiction in declaring that “the Court authorizes the transfer of probation to Canada”, this does not mean, as the Minister noted, that the U.S. authorities made misrepresentations or that they were in bad faith. [ 44 ] It appears from the Minister’s decision that it was still possible for the defendant’s file to be transferred after his motion to return to Canada temporarily was dismissed on August 9, 2007. On August 15, he was summoned by his probation officer to complete the paperwork to this effect.

By that time, he had already fled to Canada. [ 45 ] As for the argument based upon the fact that the U.S. authorities refused to consider the victim’s admission that he lied, it must also fail. [ 46 ] The Minister requested explanations from the USDOJ [28] in this regard. He wrote: [29] Information was sought from USDOJ on Mr. Provost’s claim that the complainant told the U.S. prosecutor the day before Mr. Provost’s trial that he himself had initiated sexual contact with Mr. Provost. USDOJ has advised that the Virginia prosecuting authorities are not aware of any such information .

Moreover, they note that even if the complainant, who was a minor at the time, had initiated sexual contact, this would not have been a defence to the charge for which Mr. Provost pleaded guilty . I am satisfied that there is no evidence of misconduct, improper motive or other abusive conduct on the part of the U.S. authorities that might warrant a refusal of Mr. Provost’s surrender. There is nothing before me to suggest that the U.S. prosecuting authorities presented evidence to the Virginia Court knowing it to be false or that the U.S. investigators “coached” the complainant into portraying Mr.

Provost as a violent sexual predator. Moreover, the U.S. authorities expressly deny Mr. Provost’s claim that the complainant changed his story the day before Mr. Provost’s case was to be tried. Absent compelling evidence to the contrary, I am entitled to accept the information provided by the U.S. authorities on this issue. [Emphasis added] [ 47 ] The Minister was thus faced with two contradictory versions. He had to assess this information and decide which version he accepted. As the plaintiff’s assertions were not supported by any evidence, the Minister accepted the version of the U.S. authorities.

He added the following: [30] As indicated above, in the context of his probation revocation hearing, he will have the opportunity to raise, in the U.S. courts, any concerns he has, including with respect to the veracity of the evidence underlying his guilty plea. The USDOJ has further advised that a convicted person may, in certain circumstances, collaterally attack his or her conviction under Virginia’s laws by alleging lack of jurisdiction and/or an illegal sentence.

Similarly, under Federal and State laws a convicted person may file a writ of habeas corpus alleging, inter alia , constitutional violations in their plea and/or sentencing proceedings. [ 48 ] The Minister’s decision is therefore reasonable as there is no indication that the U.S. authorities set aside evidence that would have been favourable to the plaintiff. [ 49 ] Finally, the plaintiff submits that he never had any other problems with the law other than the one for which he pleaded guilty in Virginia. He is a law-abiding citizen and an active volunteer within his community.

His son, who is now nineteen years old, needs his support as he is quite sensitive. They lived together, just the two of them, for ten years. [ 50 ] The Minister had to consider the plaintiff’s personal situation to determine whether his surrender would be unjust, oppressive or contrary to the principles of fundamental justice. This is rarely a real obstacle to a person’s surrender. The British Columbia Court of

Appeal stated the following on this issue:[31] 30 The Minister’s task in ordering surrender is to balance the personal circumstances of the appellant against factors militating infavour of extradition. This includes the principle that persons sought for extradition must expect to be answerable to the justice system ofthe requesting state, and the principles of comity and fairness in bringing international fugitives to justice: United States of America v.Burns, 2001 SCC 7 , [2001] 1 S.C.R. 283, 195 D.L.R (4th) 1 at para. 72. 31 The Ganis’ family situation is indeed a sympathetic one.

And in other cases the court has considered the impact of extradition onthe fugitive’s family members: see: United States of America v. Taylor (2005), 2005 BCCA 440 , 200 C.C.C. (3d) 388(B.C.C.A.); United States of America v. Kunze (2005), 2005 BCCA 87 , 194 C.C.C. (3d) 422 (B.C.C.A.); and Hong Kong v.Cheng, [1996] O.J. No. 5581 (Ont. S.C.J.). The cases show that the fugitive must meet a high threshold to warrant a s. 44(1)(

a) refusalby the Minister. 32 Counsel for the respondent referred to cases involving the likelihood of significant hardship to a family following surrender,including Canada (Minister of Justice) v. Thomson, [2005] O.J. No. 762 (C.A.). There the appellant was a single mother with twoteenage daughters who relied heavily on her for support. The Ontario Court of Appeal noted that the sentencing of a person in Canada insimilar circumstances would not in itself be unjust and oppressive, even though the effect would be to separate the offender from herchildren. Similarly in Taylor, this Court upheld surrender where Mr.

Taylor’s dependent wife suffered from schizophrenia anddepression. Medical reports indicated that his extradition would place her at a much higher risk of committing suicide and that she wouldlikely require hospitalization or institutionalization. And in Kunze, this Court found no error in the Minister’s decision to surrender Mr.Kunze, whose spouse and child were financially dependent on him. [Underlining added — Bold in the original] [51] In Savu v. Canada (Minister of Justice)[32] and M.M. v.

Canada (Minister of Justice) (United States of America),[33] this Courtstated that the impact of the defendants’ surrender on their children did not cause the surrender to be contrary to

section 7 of the Charter. [52] The Minister was of the view that, in the circumstances, the plaintiff’s surrender would not shock the conscience of Canadians.The plaintiff has not established that the Minister committed a reviewable error in this regard. [53] At the hearing, the issue of the compliance of the authority to proceed with paragraph 15(3)(

c) of the Act was raised. This wasnot a ground of appeal raised by the plaintiff. The Court will, however, comment briefly in this regard since some discussion took placeon this issue. [54] In his representations to the Minister, the plaintiff stated that the offence under

section 151 of the Criminal Code did notcorrespond to that under

section 18.2-63 of the Virginia Code pursuant to which he was found guilty because the victim was fourteenyears old when the offence was committed. In Canada, in 2006,

section 151 of the Criminal Code applied only to persons under the ageof fourteen years, not sixteen as it now provides. [55] The Minister responded to this argument in the following terms:[34] l am satisfied that the ATP is not defective. Under section 29(4) of the Act, the date of the ATP is the relevant date for the purpose ofcommittal under section 29(1). Thus, when considering whether committal is justified in Canada, the extradition judge looks to Canadianlaw as it existed on the date of the ATP, not the date of the alleged offence (United States v Quintin, (ON SC),[2000] OJ No 791 (SCJ); Germany v Ebke, 2001 NWTSC 52). The offence of sexual interference under

section 151 of the Criminal Code, which applied as of the date of the ATP, constitutes a crimein Canada with respect to victims under the age of 16 years. As such, the offence listed in the ATP corresponds to the alleged conduct forwhich Mr. Provost was convicted, therefore satisfying the requirements of section 15(3)(

c) of the Act. [56] Paragraph 3(1)(

b) of the Act provides that a person may not be extradited if the conduct of the person, had it occurred inCanada, would not have constituted an offence that is punishable in Canada. This is the principle of “double criminality”. [57] One might think that this provision necessarily implies that the offence punishable in the receiving State must correspond to aCanadian criminal offence at the time when the alleged conduct was committed. Yet

section 29 of the Act specifies the assessment thatthe extradition judge must conduct. The extradition judge is required to ensure that the offences committed by the person at issue wouldconstitute criminal offences under Canadian law. Subsection 29(4) specifies the date that is relevant to the application of subsection29(1). The judge must therefore refer to the date of the authority to proceed and not the date on which the offences were committed. TheCourt in Désilets v. Canada (Ministre de la Justice)[35] states this principle clearly: [translation] III.

Principle of double criminality: [27] In the authority to proceed, the Minister described the corresponding offences under Canadian law as sections 151, 153 and 271of the Criminal Code, which provisions came into force on January 1, 1988. [28] According to the plaintiff, his surrender may only be ordered if the alleged conduct, committed between 1978 and 1984,constituted offences in Canada at that time.

In other words, the principle of double criminality must be assessed at the time when theoffences were committed; according to the plaintiff, those alleged against him did not exist in Canada between 1978 and 1984.Consequently, his surrender may not be ordered. [29] This argument is ill-founded pursuant to

section 3 and subsections 15(3) and 29(1) and (4) of the Act, which provide that doublecriminality must be assessed at the time of the authority to proceed with the surrender.

[30] Commenting on subsection 29(4) of the Act, Elaine F. Krivel, Q.C., Thomas Beveridge and John W. Hayward in Practical Guideto Canadian Extradition, Carswell, 2002, state the following at page 239: Section 29(4) of the new Extradition Act provides that the relevant date for the committal determination is the date of the authority toproceed. This is in contrast to s. 34 of the former Act which required the offence for which extradition was sought to be an offence inCanada, at the time it occurred in the other jurisdiction (see United States v.

Allard (1991), (SCC), 64 C.C.C. (3d) 159(S.C.C.), reconsideration refused (July 11, 1991), Doc. 20626 (S.C.C.)). This is no longer the rule under the new Extradition Act. Therelevant date for the s. 29 (1) committal determination is the date of the authority to proceed. Section 29(4) of the new Act now focuses the inquiry on whether the alleged conduct is an offence in Canada as of the date of theauthority to proceed, a change which may in fact better promote the objectives sought to be advanced by the extradition system. [31] This

interpretation was followed by the Court of Appeal for the Northwest Territories in Germany (Federal Republic) v. Ebke,(2003) 2003 NWTCA 1 , 173 C.C.C. (3d) 261. Paperny J.A., for the Court, stated: [29] Section 29(4) directs that for the purpose of determining whether there is evidence admissible under the Act, of conduct, had itoccurred in Canada, would justify committal for trial, the date of the Authority to Proceed is the relevant date; that is, the date ofdetermining double criminality under Canadian law is the Authority to Proceed. In our view, the

section is clear and unambiguous. Weagree with the conclusion of the learned extradition judge, Dambrot J. in United States of America v. Quintin, (ONSC), [2000] O.J. No. 791 (QL) (Ont. S.C.J.) [reported 73 C.R.R. (2d) 237], that Parliament has changed the law in this Act and the newprovision is in direct contrast to that provided for under the former Act. There is no reason to assume that this was unintentional. [30] Further, such

interpretation is consistent with the underlying context and principles of extradition law. Reciprocity, comity, and therecognition of the validity of foreign law, with the ultimate determination of truth at trial, are guiding principles. [31] Section 29(4) as drafted advances these objectives. Reciprocity is defined by the double-criminality rule, namely, that both statesmust agree that the conduct in question is criminal. That concept is enhanced when the conduct is assessed by the requested state at thetime of the request of the Authority to Proceed.

The request is evaluated on the current societal norms as legislated by Parliament andreflected in the Criminal Code.

Reciprocity has more meaning when double-criminality is assessed by the request state at the time it ismade, not whether historically it might have been. [32] To interpret s. 29(4) otherwise would create a situation in which a person could carry out criminal activity in one country with theknowledge that a safe haven exists where, the conduct is not or has not yet been criminalized and, where that person remains immunizedfrom prosecution despite a subsequent recognition that the conduct is criminal in the new state.

The result would be contrary to theacknowledged purpose of the Act; that is, to foster international legal cooperation. [32] This second ground of appeal must also fail. [References omitted] [58] The Minister did not err in dismissing the plaintiff’s submissions in this regard. [59] To arrive at his conclusion, the Minister considered all of the plaintiff’s arguments, requested details from the U.S. authoritiesand analyzed the whole in light of the applicable principles and the case law. The Court is of the opinion that the plaintiff has notestablished that the Minister’s decision was unreasonable.

FOR THESE REASONS, THE COURT: [60] DISMISSES the appeal. JULIE DUTIL, J.A. GUY GAGNON, J.A. MARIE ST-PIERRE, J.A. Mtre Jack Y. HendlerFor the plaintiff Mtre Claudine DibMINISTER OF JUSTICE OF CANADAFor the respondent Date of hearing: June 3, 2015 [1] Order of surrender and letter of the Minister of Justice dated August 25, 2014 [Judgment under appeal].