2011 QCCA 37, 2011 QCCA 37

Unofficial English Translation Leclerc c. Canada (Procureur général) 2011 QCCA 37 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF M O NTREAL No.: 500-10-004456-099 and 500-10-004800-106 (500-36-004989-094) RECORD OF PROCEEDINGS DATE: January 10, 2011 CORAM: THE HONOURABLE ANDRÉ ROCHON, J.A. PAUL VÉZINA, J.A. LORNE GIROUX , J.A. No.: 500-10-004456-099 (500-36-004989-094) APPELLANT – person concerned COUNSEL DENIS LECLERC Mtre Richard F.

Prihoda AVOCATS MONTRÉAL LAWYERS RESPONDENT – extradition partner COUNSEL ATTORNEY GENERAL OF CANADA, on behalf of the United States of America Mtre Constantina Antonopoulos DEPARTMENT OF JUSTICE CANADA Director of Public Prosecutions of Canada Appeal from a judgment of the Superior Court, District of Montreal (the Honourable Mr. Justice Jerry Zigman) rendered on September 10, 2009. Motion for release pending the decision of the Court of Appeal No.: 500-10-004800-106

APPLICANT – Interested person COUNSEL DENIS LECLERC Mtre Richard F. Prihoda AVOCATS MONTRÉAL LAWYERS RESPONDENT – Decision maker COUNSEL MINISTER OF JUSTICE OF CANADA Mtre Constantina Antonopoulos DEPARTMENT OF JUSTICE CANADA Director of Public Prosecutions of Canada Application for review of a decision of the Minister of Justice Rob Nicholson, rendered on March 18, 2010 NATURE OF APPEAL : Extradition and judicial review – extradition Court clerk: Marcelle Desmarais Courtroom: Antonio-Lamer HEARING 2:00 p.m. Arguments by Mtre Richard F. Prihoda. 3:02 p.m. Arguments by Mtre Constantina Antonopoulos. 3:27 p.m.

Response by Mtre Richard F. Prihoda. 3:30 p.m. End of arguments on both sides. 3:30 p.m. Recess. 3:41 p.m. Resumption of hearing. PER CURIAM: Judgment – see page 3. Marcelle Desmarais Court clerk PER CURIAM

JUDGMENT 1 The appellant appeals from the judgment rendered on September 10, 2009, by the extradition judge, who ordered hiscommittal. He also seeks, by means of a judicial review, to obtain a stay of the subsequent order of surrender made by the Minister ofJustice on February 25, 2009. 2 Essentially, the appellant adopts the same angle of attack in both files. First, he faults the extradition judge for nothaving taken into account the American indictment. Second, he complains that the Minister did not take into account the insufficiencyof the evidence in support of the charge set out in the indictment.

The appellant raises an additional ground against the Minister ofJustice, criticizing him for not having obtained a guarantee from the partner State that he would receive the treatment required by hismedical condition. 3 These grounds must fail. 4 The extradition judge did not err by refusing to take the foreign indictment into account. In this respect, his decisionis supported by the legislation, particularly in paragraphs 29(1)(

a) and 15(3)(

c) of the Extradition Act[1] ("E.A."). These provisionsprovide that the extradition judge must consider whether the evidence filed in the record justifies returning the case to trial "on theoffence set out in the authority to proceed", namely, the offence which, in the view of the Minister, corresponds in Canadian law to "thealleged conduct of the person". 5 The wording of

section 29 E.A. is clear: the extradition judge is to consider only domestic law. As the Supreme Courtstated in Canada (Justice) v. Fischbacher,[2] "the role of the extradition judge does not include any review of the foreign law". 6 As for the order of surrender made by the Minister, his decision is reviewable on a standard of reasonableness.[3] 7 The appellant argues that the Minister's decision is unjust and oppressive (section 44 E.A.). He argues that theMinister failed to take into consideration the insufficiency of the evidence in support of the foreign charge.

He adds that the Minister alsofailed to demand guarantees from the partner State whereby the medical treatment required for his medical condition would not beinterrupted. 8 In this case, the Minister chose to extradite the appellant for "the offence in respect of which the extradition isrequested", pursuant to

section 58 E.A. 9 In Canada (Justice) v. Fischbacher, supra, the Supreme Court stated the following with regard to subsection 58(b)A.E.: [41] Nothing in s. 58(

b) requires that the Minister match or "align" the surrender offence with that listed in the ATP or the committalorder, nor with the evidence adduced at the hearing. In fact, quite the contrary: s. 58(

b) provides the Minister with flexibility in craftingan order of surrender, and clearly contemplates that the wording of the surrender order may differ from that of the ATP and the order ofcommittal: see, e.g., United States of America v. Saad, (2004), (ON CA), 183 C.C.C. (3d) 97 (Ont.

C.A.), at para. 40. 10 Along the same lines, the Supreme Court adds: [49] With respect, it is my view that to the extent that Reumayr (2003) and its offspring stand for the principle that the Minister isrequired to “align” the Canadian and foreign offences by ensuring that the evidence adduced at an extradition hearing supports eachelement of the foreign offence upon which surrender is ordered, these decisions do not represent the law in Canada.

The “misalignment”test adopted by the Court of Appeal in this case is incompatible with three key components of extradition law: conduct-based doublecriminality; the foundational principle of comity; and the carefully circumscribed role assigned to the extradition judge in the Act. I willexplain. [50] The “misalignment” test is functionally inconsistent with the conduct-based approach to double criminality.

By requiring theMinister to assess the parity between the elements of the Canadian offence and the elements of the foreign offence before surrenderingthe person sought for the latter, the “misalignment” test effectively amounts to adding an offence-based test for double criminality at thefinal stage of the extradition process.

This approach is inconsistent with the provisions of the Act and Treaty which clearly specify thatconduct — not symmetry between the elements of the Canadian and foreign offences — is determinative of double criminality. [51] By requiring the Minister to evaluate whether the requested offence is “proper” in light of the foreign evidence, the “misalignment”test amounts to a second-guessing of the foreign state’s assessment of its own law. This sends the message that Canada is suspicious ofthe ability of the foreign state to assess the evidence against its own law and decide on the appropriate offence.

The “misalignment” testis thus incompatible with the principles of “reciprocity, comity and respect for differences in other jurisdictions” that are foundational tothe effective operation of the extradition process: Kindler v. Canada (Minister of Justice), (SCC), [1991] 2 S.C.R. 779,at p. 844. [52] Comity demands that the requested state maintain a limited role in the extradition process to prevent the proceeding from becominga trial on the merits.

The fundamental tension between comity and any assessment by the Canadian judiciary or executive of the law ofthe foreign state has been enunciated on numerous occasions by this Court in the context of defining the mandate of the extradition judgeunder the Act. In Argentina v.

Mellino, (SCC), [1987] 1 S.C.R. 536, at p. 551, this Court explained as follows: At all events, the assumption by a Canadian court of responsibility for supervising the conduct of the diplomatic and prosecutorialofficials of a foreign state strikes me as being in fundamental conflict with the principle of comity on which extradition is based.

[Emphasis added.] See also, e.g., United States of America v. Kwok, 2001 SCC 18, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 99, and McVey, at pp. 508-10. While the comments in Mellino were made in respect of the judicial phase of extradition proceedings, their essential message isequally applicable to the circumstances of the present appeal: it is not for the Canadian authorities, judicial or executive, to evaluate aforeign state’s decision to prosecute the person sought for a given offence, nor to assess the sufficiency of the evidence adduced at thecommittal hearing against the elements of the foreign offence.

To do so offends the underlying principle of comity and risks underminingthe foundation of effective extradition practice. [53] Finally, the “misalignment” test adopted by the Court of Appeal is incompatible with the role of the extradition judge defined by s.29 of the Act.

If the Minister were required to compare the elements of the foreign offence against the evidence adduced at theextradition hearing to ensure that the two are “aligned”, the requesting state would have to lead evidence on every element of the foreignoffence in the context of the extradition hearing before the Minister could surrender for the requested offence.

This would fundamentallychange the nature of the extradition judge’s inquiry under s. 29 of the Act, which specifies that the judge is to consider only the domesticside of double criminality, looking for evidence in respect of each element of the Canadian offence listed in the ATP. [54] That the Minister is not to assess whether the evidence adduced at a committal hearing satisfies the elements of the foreign offenceshould not be understood to mean that the Minister has no scope to consider foreign law in making his determination on the question ofsurrender.

It is well established that in exceptional circumstances, the panoply of relevant factors that inform a surrender decision mayinclude a significant discrepancy between the jeopardy faced by the person sought in the requesting state and that which he would face ifconvicted in Canada in respect of the same conduct: see, e.g., Ross v. United States of America, (1994), (BC CA), 93C.C.C. (3d) 500 (B.C.C.A.), per Taylor J.A., aff’d, (SCC), [1996] 1 S.C.R. 469.

In these circumstances, the Minister isentitled to include the foreign crime and its attendant penalty as one of many factors under consideration at the surrender stage. In doingso, however, the Minister simply takes account of the potential consequences to the person sought under the foreign law, as opposed tomaking his own assessment of how the foreign law should apply to the case at issue.

Accordingly, the Minister remains within the ambitof his proper role under the Act, and the principle of comity is not undermined. 11 This is sufficient to reject the appellant's first argument, especially since, in his answer to the appellant's submissions,the Minister stated that he had taken into account the fact that the partner State had attested that the evidence adduced at the extraditionhearing [translation] "supports the American offence of conspiracy, in respect of which Mr. Leclerc's extradition is requested". 12 The appellant's ground with respect to his medical condition is without merit.

The Minister stated that he was satisfiedwith the statement from the New York Federal Bureau of Prisons whereby it was able to ensure the required medical follow-up on theappellant's medical condition. In the present case, this position is not unreasonable. 13 FOR THESE REASONS, THE COURT: 14 DISMISSES the appeal of the order of committal made by the Superior Court on September 10, 2009; 15 REJECTS the application for judicial review of the Minister's order of surrender made on March 18, 2010. 16 REJECTS, as moot, the motion for release. ANDRÉ ROCHON, J.A. PAUL VÉZINA, J.A.

LORNE GIROUX, J.A. [1] S.C. 1999, c. 18.

[2] [2009] 3 S.C.R 170, 2009 SCC 46 at para. 35. [3] Lake v. Canada (Minister of Justice), 2008 SCC 23 , [2008] 1 S.C.R. 761 at para. 34; Németh v. Canada (Justice), 2010SCC 56 at para. 10.