2018 QCCA 1833, 2018 QCCA 1833

Fernandes c. Attorney General of Canada (United States of America) 2018 QCCA 1833 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500- 10-006514-176 , 500-10-006647-182 (500-36-007997-169) MINUTES OF THE HEARING DATE: November 6, 2018 CORAM: THE HONOURABLE François Doyon , J.A. Claudine Roy , J.A. Stephen W. Hamilton , J.A. N o : 500-10-006514-176 APPELLANT COUNSEL MATTHEW FERNANDES Mtre TEDDY TABET for Mtre MARIE-HÉLÈNE GIROUX (MGL Avocats) RESPONDENT COUNSEL ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Mtre SAROM BAHK (Ministère de la Justice Canada) N o : 500-10-006647-182

PLAINTIFF COUNSEL MATTHEW FERNANDES Mtre TEDDY TABET for Mtre MARIE-HÉLÈNE GIROUX ( MGL Avocats ) RESPONDENT COUNSEL MINISTER OF JUSTICE OF CANADA Mtre SAROM BAHK (Ministère de la Justice Canada) 500-10-006514-176 On appeal from a judgment rendered on August 25, 2017 by the Honourable Justice Pierre Labrie of the Superior Court, District of Montreal. 500-10-006647-182 On judicial review of an extradition order rendered on January 19, 2018 by the Honourable Jody Wilson-Raybould, Minister of Justice of Canada.

NATURE OF THE APPEAL : 500-10-006514-176 Extradition – Committal. 500-10-006647-182 Extradition – Judicial review of the decision rendered by the Minister of Justice of Canada. Clerk: Lory Zakarian Courtroom: Pierre-Basile-Mignault (RC.08) HEARING

9:30 Commencement of the hearing. Identification of counsel. 9:32 Submissions by Mtre Teddy Tabet. 9:51 Commentary by the Court. Recess of the hearing. 11:18 Resumption of the hearing. Continuation of the submissions by Mtre Tabet. 11:19 Intervention of Mtre Sarom Bahk. 11:59 Intervention of the Court. 12:00 Recess of the hearing. 12:05 Resumption of the hearing. Commentary by the Court. The submissions of Mtre Bahk are not necessary. BY THE COURT: Judgment rendered forthwith by the Honourable François Doyon, J.A. – see page 4. Commentary by the Court. 12:06 Conclusion of the hearing.

Lory Zakarian Clerk BY THE COURT JUDGMENT The Appeal [ 1 ] Given the limited role of the extradition judge at the committal hearing [1] and the evidence set out in the record of the case, the Appellant failed to convince the Court that the judge made any reviewable error in ordering the Appellant’s committal. [ 2 ] The evidence in the record of the case was duly certified under Section 33(3) of the Extradition Act , [2] and it is presumed to be reliable and available. [3] It constitutes sufficient evidence of the Appellant’s participation in the conspiracy for which his extradition is sought.

The evidence tendered by the Appellant to counter the evidence submitted by the Respondent is not sufficient to rebut the presumption of reliability or to justify a refusal to commit, but rather should be presented at the trial as grounds for defence. [ 3 ] The refusal of the judge to order the communication of additional evidence was well founded.

All of the evidence relied upon by the Respondent for the committal hearing was communicated and the Charter arguments put forward by the Appellant do not justify any additional communication. [4] The Judicial Review [ 4 ] The Appellant does not demonstrate that the Minister’s decision was unreasonable. The Court must show deference towards the Minister’s decision. [5] [ 5 ] The Minister gave the Appellant the opportunity to make representations on three occasions. The Minister examined the argument on the severity of the sentence under

Section 7 of the Charter in an appropriate manner.

There is nothing that could lead to the conclusion that the sentence could “shock the conscience” of Canadians or would be “fundamentally unacceptable to Canadian society”. [6] [ 6 ] Moreover, allegations concerning prison conditions in the United States in general cannot constitute the sole basis for concluding that the Minister’s decision was unreasonable. [7] To the contrary, the Minister obtained complementary information from the requesting state and this information establishes the reasonable character of the decision. [ 7 ] Finally, while the prosecution could have been instituted in Canada, it was instituted in the United States and the Minister considered all of the appropriate factors before concluding that the extradition of the Appellant did not constitute a breach of the rights protected by

Section 6 of the Charter . [8]

FOR THESE REASONS, THE COURT : [ 8 ] DISMISSES the appeal from the judgment rendered on August 25, 2017 by Mr Justice Pierre Labrie of the Superior Court; [ 9 ] DISMISSES the motion for judicial review of the decision rendered by the Minister of Justice on January 19, 2018. François Doyon, J.A. Claudine Roy, J.A. Stephen W. Hamilton, J.A.