2016 QCCA 1082, 2016 QCCA 1082

Sheppard c. Canada (Procureure générale) (États-Unis d'Amérique) 2016 QCCA 1082 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005521-131 (500-36-006480-126) 500-10-005656-143 DATE: June 21, 2016 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. MARTIN VAUCLAIR, J.A. GENEVIÈVE MARCOTTE, J.A. No : 500-10-005521-131 (500-36-006480-126) KYLE SHEPPARD APPELLANT – person concerned v. LA PROCUREURE GÉNÉRALE DU CANADA REPRÉSENTANT LES ÉTATS-UNIS D’AMÉRIQUE RESPONDENT – extradition partner No : 500-10-005656-143 KYLE SHEPPARD APPELLANT – person concerned v.

LA MINISTRE DE LA JUSTICE DU CANADA RESPONDENT – decision maker JUDGMENT [ 1 ] The appellant appeals from a judgment rendered by the Superior Court, District of Montréal (the Honourable Mr.

Justice Guy Cournoyer), rendered on October 22, 2013, ordering his committal into custody to await his surrender to the United States of America and applies for the judicial review of the decision of Minister of Justice for Canada, rendered on April 28, 2014, ordering the Appellant’s surrender for extradition to the United States of America. [ 2 ] For the reasons of Vauclair, J.A., with which Pelletier, J.A. and Marcotte, J.A. agree, THE COURT : [ 3 ] DISMISSES both the appeal and the application for judicial review. FRANÇOIS PELLETIER, J.A. MARTIN VAUCLAIR, J.A. GENEVIÈVE MARCOTTE, J.A. Mtre Daniel J.

Brodsky DANIEL J. BRODSKY, AVOCAT For the Appellant Mtre Ginette Gobeil

SERVICE DES POURSUITES PÉNALES DU CANADA MINISTÈRE DE LA JUSTICE CANADA For the Respondents Date of hearing: April 26, 2016 REASONS OF VAUCLAIR, J.A. [ 4 ] On October 22, 2013, the Superior Court (the Honourable Guy Cournoyer) ordered the Appellant’s committal into custody to await his surrender (“Order of committal”) to the United States of America following an extradition hearing: 2013 QCCS 5260 . [ 5 ] On April 28, 2014, the Minister of Justice for Canada ordered the Appellant’s surrender (“Order of surrender”) for extradition to the United States of America (“Requesting state”).

He appeals from the judgment and applies for the judicial review of the Minister’s Order. [ 6 ] The Appellant is charged in the State of Ohio with the murder of his wife which occurred on or about November 2, 2012. According to the Record of the Case, a co-worker and friend of the victim, concerned about the latter’s safety, attended at her residence and found the victim’s car in the rear driveway. The house was locked. Later that same day, the victim’s body was found at her home, wrapped in a blanket with a belt around her neck.

Further evidence showed the following: the appellant’s wife was having an extramarital relationship; the appellant learned of the affair; on the morning of the murder, he sent an angry text message with sexually explicit language to his wife’s lover; the appellant also failed to attend work that day and had entered Canada from Detroit, Michigan around 5:30 am. Two days later, the appellant surrendered himself to the Saguenay police.

His car and its contents were seized by the Canadian authorities. [ 7 ] Before the extradition judge, the Appellant agreed to the transfer of the evidence seized when he was arrested on behalf of the Requesting state. The judge so ordered, according to

section 39 of the Extradition Act , S.C. 1999, c. 18 (“the Act”), which corresponds to

article 15 of the Treaty on Extradition between Canada and the United States of America , 3 December 1971, Can TS 1976 No. 3 (“the Treaty”). [ 8 ] The better part of the extradition hearing was devoted to determining whether certain incriminating statements were obtained by the Canadian police in a manner that infringed upon the Appellant’s Charter rights. The extradition judge found a Charter violation and excluded the evidence. That decision is not under appeal.

According to the extradition judge, the balance of the evidence, however, was sufficient to order the Appellant’s committal for the conduct corresponding to sections 229 (Murder) and 235 (Punishment for murder) of the Criminal Code . He declined to specify whether his Order of committal was for first-degree or second-degree murder. [ 9 ] The Appellant is of the view that the extradition partner’s criminal investigation is still evolving and he fears that the Requesting state may prosecute him for an offence punishable by death.

Consequently, he requested the suspension of the extradition proceedings until the precise extent of his jeopardy, if extradited, can be assessed. The extradition judge again declined, ruling that he did not have jurisdiction to order the suspension of proceedings where the evidence is sufficient to justify the committal. [ 10 ] The extradition judge ordered the committal of the Appellant. * [ 11 ] The Appellant then made submissions to the Minister of Justice. He asked the Minister to seek assurances from the United States that the death penalty will not be imposed if he is convicted.

He further asked the Minister to postpone his surrender until the American police investigation is concluded. The Minister declined both. [ 12 ] The Minister determined that surrender without assurances would not be contrary to the principles of fundamental justice since there is no compelling reason to ask for assurances from the Requesting state.

In so deciding, the Minister understood that both Appellant’s requests are linked to the ongoing police investigation and that the Appellant fears his immediate surrender could expose him to an increased penalty or further criminal charges, without remedy. [ 13 ] In the reasons given for his decision, the Minister agreed that his obligations under the Act and relevant case law, require him to refuse extradition without assurances that the death penalty will not be imposed in cases involving a real risk that the person sought will face the death penalty if surrendered. [ 14 ] The Minister, however, concluded that the death penalty is not an available penalty for the offences for which extradition is sought.

Therefore, there is no justification to seek assurances. The Minister felt comforted by

article 12 of the Treaty which entrenches the protection of speciality and stipulates that without the consent of Canada, the Appellant cannot be prosecuted for any offence other than the offences for which he is surrendered and which are not punishable by death in Ohio. [ 15 ] As for postponement, the Minister believed it would interfere with the conduct of the investigation by the Requesting state and stand contrary to the obligations of the Treaty.

There is no requirement for an Extradition partner to terminate an investigation before requesting extradition. ** [ 16 ] On appeal, the Appellant questions the reasonableness of both decisions. He argues that the extradition judge erred in finding that there was sufficient evidence for committal and in failing to order the suspension of the proceedings. The committal should be

quashed and a discharge entered or the extradition proceedings should be stayed. Alternatively, he asks that a new extradition hearing beordered. [17] Respondent argues that the decision of the extradition judge is correct on both questions. The evidence reveals conduct thatwould have been criminal in Canada and sufficient evidence for committal. Thus, the Extradition judge did not have jurisdiction tosuspend the proceedings pending the termination of the investigation. [18] As for the judicial review, the Applicant asks the Court to quash the Order of surrender and to discharge him.

Alternatively, heasks the Court to remit the matter to the Minister for a new determination and direct the Minister to seek such enforceable assurancesfrom the Requesting state as this Court determines appropriate.

He also suggests that the Minister be compelled to “embed” his decisionletter into the official Order of surrender or to provide a copy of it to the American authorities. [19] While he acknowledges the rule of specialty should prevent a prosecution for offences other than those stated in the Order ofsurrender, he believes that the evidence transferred by Canada to the American police may lead to a new charge in respect of which tocapital punishment would apply. [20] According to the Respondent, the rule of speciality offers all the necessary protection against any risk of the death penalty but,in any case, the Minister’s balancing of the Appellant’s Charter rights is deserving of deference and this Court should not intervene. *** [21] The Supreme Court of Canada recently recalled that the role of the extradition judge is only to determine whether admissibleevidence shows conduct that would justify a committal for trial in Canada on the offence set out in the authority to proceed and that theperson before the Court is the person sought by the extradition partner: M.M. v.

United States of America, 2015 SCC 62 , [2015]3 S.C.R. 973, para. 22. [22] Where the case for the prosecution relies on circumstantial evidence, the judge’s task is to weigh that evidence but in a verylimited way and only to assess whether, if believed, it is capable of supporting the reasonable inferences the Crown asks trier of fact todraw: R. v. Arcuri, 2001 SCC 54 , [2001] 2 S.C.R. 828, paras. 1, 23; M.M. v. United States of America, para. 71.

But “[t]here isno power to deny extradition simply because the case appears to the extradition judge to be weak or unlikely to succeed at trial”: M.M. v.United States of America, para. 71. [23] In this case, the evidence before the extradition judge did constitute a set of circumstances from which one could reasonablyinfer that the Appellant is the person responsible for the death of his wife.

Before the extradition judge and this Court, the Appellantconceded that the act of strangulation may allow the inference that her death was a homicide. [24] I agree with the Respondent that identity of the person who committed the actus reus of the offence may be inferred frommotive. I also agree that the text message sent to the victim’s lover is, in this context, evidence of motive capable of supporting proof ofidentity: R. v. Lewis, (SCC), [1979] 2 S.C.R. 821, p. 834-835, 838; R. v.

Griffin, 2009 SCC 28 , [2009] 2 S.C.R.42, paras. 59, 63. [25] The act of strangulation may also allow the inference that the person who commits the homicide “means to cause the victimbodily harm that he knows is likely to cause death, and is reckless whether death ensues or not”: s. 229(a)(ii) Cr.C.; see R. v. Nygaard, (SCC), [1989] 2 S.C.R. 1074, p. 1087-1088; R. v. Cooper, (SCC), [1993] 1 S.C.R. 146; R. v. Moo, 2009ONCA 645, para. 46; R. v. Spencer, 2002 ABCA 32; R. v. Rybak, 2008 ONCA 354, para. 133; R. v. Théroux, (SCC),[1993] 2 S.C.R. 5, 18.

There is thus evidence from which mens rea for murder may be inferred. [26] In the circumstances, the committal order was reasonable and supported by the evidence. I would dismiss this ground of appeal. [27] The Appellant also argues that the extradition judge erred in failing to order the suspension of the extradition proceedingspending the termination of American criminal investigation. I agree with the extradition judge’s reasons and this ground of appeal mustalso fail. [28] The committal phase is carefully circumscribed and the role of the extradition judge is exhaustively defined by the Act: ss.29(1)(

a) and (3) of the Extradition Act; M.M. v. United States of America, paras. 22-23. Where the evidence is sufficient, the personsought must be committed for extradition: Canada (Justice) v. Fischbacher, 2009 SCC 46 , [2009] 3 S.C.R. 170, para. 35. Anorder for the suspension of the committal proceedings was therefore not an option in this case. **** [29] The Minister refused to seek assurances or to postpone the surrender of the Appellant. He also refused to “embed” otherdocuments to the Order of surrender. In my view, his decision is not unreasonable.

All three requests by the Appellant are directedtowards the same end, i.e. to reinforce any temptation from the Requesting state to modify the charge against the Appellant in a way thatcould lead him to face the death penalty. [30] It is unnecessary to decide whether this Court can order the Minister to “embed” any document with the order to surrender. Iagree with the Respondent that the Treaty offers a complete protection in this case. The rule of speciality is recognized in the Treaty.There was thus no obligation for the Minister to grant any of the Appellant’s requests. [31]

Article 12 of the Treaty provides:

1. A person extradited under the presentTreaty shall not be detained, tried or punishedin the territory of the requesting State for anoffense other than that for which extraditionhas been granted nor be extradited by thatState to a third State unless: 1. Un individu extradé en vertu du présentTraité ne doit être ni détenu, ni jugé, ni punisur le territoire de l’État requérant pour uneinfraction autre que celle ayant motivél’extradition et ne peut non plus être livré parledit État à un État tiers, sauf : a. He has left the territory of the requestingState after his extradition and has voluntarilyreturned to it; a.

S’il a quitté le territoire de l’État requérantaprès son extradition et y est revenuvolontairement;b. He has not left the territory of the requestingState within thirty days after being free to doso; or b. S’il n’a pas quitté le territoire de l’Étatrequérant dans un délai de trente jours aprèsêtre devenu libre de le faire; ouc. The requested State has consented to hisdetention, trial, punishment for an offenseother than that for which extradition wasgranted or to his extradition to a third State,provided such other offense is covered byArticle 2. c.

Si l’État requis a consenti soit à ce qu’il soitdétenu, jugé et puni pour une infraction autreque celle ayant motivé son extradition, soit àce qu’il soit livré à un État tiers, à conditionque cette autre infraction soit couverte parl’Article 2.2. The foregoing shall not apply to offensescommitted after the extradition. 2.

Les dispositions qui précèdent nes’appliquent pas aux infractions commisesaprès l’extradition. [32] Thus, even where the law of the Requesting state provides both for the death penalty for certain offences but not for theoffences set out in the Order to surrender, seeking assurances appears, at least prima facie, to be superfluous: see Racine c. Canada(Ministre de la Justice), 2014 QCCA 1639, para. 47; United States of America v. Ranga, 2012 BCCA 82, para. 14. [33] That is not to say the Minister may never seek assurances in this context.

The choice to seek assurances, however, rests squarelywithin the Minister’s discretion. The Minister’s decision is “largely political in nature” and it is deserving deference: Lake v. Canada(Minister of Justice), 2008 SCC 23 , [2008] 1 S.C.R. 761, paras. 22, 34. One might add that this is even more the case where heis asked to seek assurances already provided for in the Treaty. Interfering with ministerial discretion in this context would not be withoutsignificance in the international relations between the two countries. In Canada v.

Schmidt, [1987] S.C.R. 500, at p. 502-503, Justice LaForest wrote, “the courts must be extremely circumspect so as to avoid interfering unduly in decisions that involve the good faith andhonour of this country in its relations with other states.” [34] Thus, if a Treaty exists, unless there is compelling evidence that the commitments entered in the Treaty are not fulfilled by anextradition partner, courts should not presume they will not be respected: Chan Chui-Mei v. Director of Maison Tanguay (1996), (QC CA), 113 C.C.C. (3d) 270, 303-304 (C.A.Q.).

The Appellant submitted the 1975 case of Peltier as an example to thateffect: Privitera, John J. (1983) "Toward A Remedy for International Extradition by Fraud: The Case of Leonard Peltier" Yale Law &Policy Review: Vol. 2: Iss. 1,

Article 3, and again in Martin, Dianne L., Extradition, the Charter, and due process: is procedural fairnessenough? (2002), 16 S.C.L.R. (2d) 161 and further discussed in the Honourable Fred Kaufman’s book, Searching For Justice, publishedat University of Toronto Press in 2005.

I express no comment on the case itself, but it is not evidence, much less compelling evidence,that the United States will not fulfill its obligations. [35] That said, The Supreme Court of Canada has held that the Minister must seek assurances from the Requesting state if the deathpenalty is “one of many possible outcomes” to prosecution: United States v. Burns, 2001 SCC 7 , [2001] 1 S.C.R. 283, paras.54, 78. The Minister acknowledged this obligation in his decision. The Supreme Court did not suggest, however, that the Minister mustseek assurances if capital punishment is not a possible outcome.

The Applicant’s proposition in that regard is unsustainable in thecircumstances. [36] Further, this Court dismissed a similar argument in Doyle Fowler c. Canada (Ministre de la Justice) 2011 QCCA 1076 at para.33. Justice Doyon concluded it was reasonable not to seek assurances when the offence of second-degree murder for which the personsought was surrendered was not subject to capital punishment, even if that punishment was available for first-degree murder. [37] The Appellant’s main argument relates to the evolving nature of the American criminal investigation.

Putting aside the rule ofspeciality for a moment, the Appellant has failed to point to any element of evidence that could place him at risk of being sentenced todeath. He has also failed to explain how that shift can occur given the fact that Order of surrender specifically refers to the offences andpunishment of articles 2903.02(A)(

B) and 2929.02 of the Ohio Revised Code, under which the death penalty is not an availablepunishment. Again, there is no evidence that the rule of speciality will not have its intended effect here. [38] The fact that the criminal investigation is ongoing has no bearing on extradition that is decided on the record. Hypothetically, ifthe investigation reveals aggravating circumstances or elements that trigger the prosecution on a charge other than that for whichextradition was granted, the Requesting state would have to conform to its international obligations under the Treaty and obtain theconsent of Canada to prosecute for that other offence:

article 12 of the Treaty. [39] The Applicant argues that without appropriate assurances, if this were to occur after extradition, he would then be withoutremedy should he face capital punishment. This argument is rejected. First, there is no evidence that the United States of America willfail their international obligations contained in the Treaty.

Second, the allegation that the Minister would contravene his obligations asdefined by the Act, the Charter and the jurisprudence is totally unfounded. [40] Indeed, the Minister acknowledged in his response to the Appellant that Canadian law requires him to seek assurances when thedeath penalty is a real risk. That is the correct statement of the law. It shows that the Minister, not surprisingly, is well aware of hisduties. There are no reasons to doubt that he would not seek assurances if the Requesting state makes a request as per

article 12 of the

Treaty. [ 41 ] The decision to surrender the Appellant and the decision refusing its suspension pending the ongoing investigation are discretionary in nature. The Appellant has failed to demonstrate that they are unreasonable or contrary to the law. Accordingly, the application for judicial review of the Minister’s decisions is dismissed. [ 42 ] I propose to dismiss both the appeal and the application for judicial review. MARTIN VAUCLAIR, J.A.