2015 QCCA 410, 2015 QCCA 410

Unofficial English Translation March c. Canada (Procureur général) (États-Unis d'Amérique) 2015 QCCA 410 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC MONTRÉAL REGISTRY No: 500-10-005334-139 DATE: February 26, 2015 CORAM: THE HONOURABLE JEAN BOUCHARD J.A. MANON SAVARD J.A. MARTIN VAUCLAIR J.A. ALEXANDER MARCH SIMA MARCH APPLICANTS – Interested parties v.

ATTORNEY GENERAL OF CANADA on behalf of the UNITED STATES OF AMERICA RESPONDENT – Decision maker JUDGMENT [ 1 ] THE COURT , ruling on the application for judicial review of two ministerial extradition orders issued on December 12, 2012; [ 2 ] FOR THE REASONS of Vauclair J.A., to which Bouchard and Savard JJ.A. subscribe: [ 3 ] DISMISSES the application for judicial review. JEAN BOUCHARD J.A. MARTIN VAUCLAIR J.A. MARTIN VAUCLAIR J.A. Mtre. Julius H. Grey, Advocatus Emeritus , and Mtre. Cornelia Herta Zvezdln GREY CASGRAIN S.E.N.C. For the Applicants Mtre.

Toni Abi Nasr ATTORNEY FOR JUSTICE CANADA For the Respondent Date of hearing: January 28, 2015 REASONS OF VAUCLAIR J.A. [ 4 ] The United States of America is seeking the extradition of Sima March and her spouse, Alexander March (the “applicants”) in

order that they answer to criminal charges of fraud in New York State. A provisional arrest warrant was issued on October 26, 2011, and on January 24, 2012, the Minister issued an authority to proceed. [ 5 ] The case having taken an unusual course in certain regards, it is, in my opinion, worthwhile to provide a brief overview. CONTEXT [ 6 ] The applicants were released upon their appearance.

They remained at liberty throughout the proceedings, except following the decision of the Superior Court of Québec, District of Montréal (the Honourable Marc David), ordering their committal. [ 7 ] The applicants were born in the United States and are U.S. citizens. Ms. March also has Israeli nationality and Mr. March, Canadian nationality. It should be noted that the applicants are the parents of five children, 12 years of age (DOB: 24-09-2002), 11 years of age (DOB: . . .-2003), 7 years of age (DOB: . . .-2007), 5 years of age (DOB: . . .-2010) and 3 years of age (DOB: . . .-2012).

This fact is central to two new arguments raised by the applicants. [ 8 ] I note that the youngest child was only five months old at the time of the July 11, 2012 hearing before David J., when he issued the order for the applicants’ committal in accordance with the Extradition Act , S.C. 1999, c. 18 (hereinafter the “ Act ”). [ 9 ] On July 20, 2012, the applicants filed a notice of appeal from that decision. [ 10 ] On September 11, 2012, the attorney for the applicants [1] availed himself of s. 43 of the Act , and sent the Minister relevant submissions in a short, two-page letter.

Apart from the introductory paragraphs, here is the letter: We believe Mr. March and Mrs. March should not be extradited. The Record of the case shows no criminal conduct . The allegations of fraud are completely dependent on an extremely arbitrary “forensic” retroactive assessment of properties. The guilt of the March is thus entirely dependent on whether (

a) those properties were verifiably over appraised by Mr. Young; (

b) Mr. Young consciously over appraised them; and (

c) whether Mr. March and Mrs. March did ask Mr. Young to inflate the value of the properties. While it is clear that the value of the property on which the March allegedly defrauded the municipality of Syracuse exceeded 5,000$, it is much less clear that the first three elements of the charges are backed by reliable or satisfying evidence . First, the allegation that the properties were “grossly inflated” is entirely based on a “Forensic” retroactive appraisal, which reliability is extremely questionable. From the outset, retroactive assessment is far from an exact science.

Further, the assessments used by the prosecution were made over 5 years after the purchase of the properties, which makes those evaluations even less reliable. It should also be noted that those forensic appraisals are grossly inferior to the listed municipal value of the properties for the year 2006, when the properties were acquired by Mr. March. It follows that this forensic evidence is purely speculative and thus highly defective, if of any significance. M. March is a Canadian citizenship, as such, he is entitled to the protection against arbitrary removals from Canada guaranteed by

section 6 of our Canadian Charte r of rights . Both Mr. and Mrs March are entitled to the protection offered by

section 7 of our Canadian Charte r of rights. We submit that their extradition, in a context where the evidence is so poor and weak, violates their right to liberty without justification . For all the above reasons, we believe that Mr. Alexander March and Mrs. Sima March should not be extradited. Respectfully submitted, [ sic ] [Emphasis added.] [ 11 ] On December 12, 2012, the Minister ordered the applicants’ extradition. He provided a response for each applicant. He responded jointly to the issue raised by the two applicants invoking the weakness of the evidence. [ 12 ] Without reiterating them exhaustively, let us take a closer look at the responses. After presenting a

summary of the evidence and information available in the extradition records, the Minister wrote the following in each of the decisions: I have given full consideration to this case and to the relevant law. After careful review “of all of the material before me, I have decided to order [Mr. and Mrs. March] surrender to the United States on the offences for which [her/his] extradition was sought. . . . [ sic ] [ 13 ] He then justified his decisions. The Minister responded to the main submission in the two records, which dealt with the quality of the evidence.

The Minister saw two arguments: either the record revealed no criminal conduct, or it did not provide evidence regarding all the elements of the counts of the offence and extradition on the basis of such weak evidence violates s. 7 of the Canadian Charter of Rights and Freedoms . [2] [ 14 ] The Minister pointed out that his responsibilities in the extradition process differ from those in the judicial phase. The sufficiency of evidence is part of the judicial phase and the decision regarding the expediency of extradition, taking into consideration the record as a whole, is his to make.

Therefore, he wrote, “l must assess [the] case from the perspective that the committal order was properly issued”. As regards the second argument, the Minister concluded that extradition does not violate s. 7 of the Charter . [ 15 ] Regarding Mr. March’s specific concern that, since he is also a Canadian citizen, his extradition would infringe s. 6 of the Charter , the Minister ruled that it did not. [ 16 ] On January 13, 2013, the applicants’ attorney filed an application for judicial review and asked that the Minister’s decision be

quashed. He raised the following two grounds:

(1) The Minister of Justice failed to consider all relevant circumstances, including the frailty of the evidence included in the Record of the case;

(2) The Minister of Justice failed to consider and properly assess their constitutional right to remain in Canada. [ 17 ] On February 24, 2014, the Court allowed the applicants’ attorney to withdraw from the case. The factums, however, were filed that day by the applicants themselves and the process continued its course. [ 18 ] On June 19, 2014, the appeal hearing was set for October 28, 2014. [ 19 ] On September 11, 2014, a new attorney for the applicants, Mtre.

Julius Grey, appeared in the cases. [ 20 ] Despite that, the applicants, personally and by means of a letter sent to the clerk, requested that the scheduled hearing be postponed. On September 19, 2014, in a letter from its president sent to the applicants’ new attorney, the Court panel refused the request, also informing the applicants that the judicial review record contained no factum. [ 21 ] On October 8, 2014, the applicants produced and sought leave to file a new factum.

The filing was contested by the respondent who reserved his comments for the hearing. [ 22 ] On October 28, 2014, the parties proceeded with both the appeal from and the judicial review of the Minister’s decision. As regards the judicial review, the respondent reiterated his objection to the filing of the new factum, asking in the alternative, given its late filing, that the hearing be postponed so that he could respond adequately.

The Court allowed the filing of additional factums and postponed the arguments on the judicial review until January 28, 2015. [ 23 ] Regarding the appeal from the committal order, the parties were heard and the Court dismissed the appeal. [3] NEW ISSUES [ 24 ] The new factum, received on October 8, 2014, sets forth the following three grounds: ARGUMENT 1. The Minister of Justice failed to produce the counts before the Extradition Judge and led only a series of transactions involving a specific set of immovable. ARGUMENT 2.

The Minister of Justice erred in law and in fact and failed to properly consider the best interest of five minor children. ARGUMENT 3. It is submitted that it shocks the conscience to extradite Appellants, if this, assuming they committed the offence, will have the effect of leaving five minor children without parents. One such decision is unacceptable and arbitrary within the meaning of s. 44 (1) (

a) of the Extradition Act and constitutes a significant reduction of the scope of the notion of the “best interest of the children”. [ sic ] [ 25 ] The applicants seek the following conclusions: GRANT this judicial review and send back to the Minister to consider all the above mentioned issues; REVERSE the extradition orders, rendered by the Minister; ALTERNATIVELY remove Count number 12 from the surrender order; GRANT any other relief that may be required under the circumstances. [ sic ] [ 26 ] According to the respondent, the applicants cannot claim that an error was made in the Minister’s response on the ground that he did not respond to submissions he never received.

The respondent notes that the applicants made no new submissions to the Minister, as s. 43(2) of the Act allows. The respondent nonetheless responded to the new grounds in subsidiary arguments. ANALYSIS [ 27 ]

Section 57 of the Act provides for judicial review of the Minister’s decision to order a person’s extradition. The Minister must analyze the extradition record as constituted.

This record may or may not contain submissions by the person in question. [ 28 ] The standard of review of this decision is reasonableness. [4] Because it is a matter of determining whether the Minister’s decision falls within a range of reasonable outcomes, this standard allows for more than one possible conclusion. [5] It must be remembered that the ministerial phase of extradition is essentially political in nature. [6] Additionally, “[w] hether the Minister is ‘satisfied’ that surrender would be unjust or oppressive in a given set of circumstances . . . is entirely a matter of his discretion”. [7] The standard of review applicable to the Court of Appeal when it must rule on an application for judicial review is rigorous and leaves little room for intervention. [8] The outcome of the initial application for judicial review [ 29 ] First, we must focus on the two grounds raised in the initial application recalling that, at the time, the applicants discussed the weakness of the extradition case and, in Mr.

March’s case, the right to remain in Canada.

[30] On the latter point, beyond the application’s mention of s. 6 of the Charter, there is not a single word in all the documentation -including the applicants’ new factum - or uttered at the hearing to particularize, explain, develop or support the required analysis of Mr.March’s right to remain in Canada. Despite that, the Minister responded to the issue and in the circumstances, in the absence of morespecific criticism, the response was reasonable.

This ground should be dismissed. [31] At the hearing the applicants’ attorney approached the weakness of the evidence from two angles. [32] First, in the initial application, the applicants criticized the Minister for relying on the judicial decision in deciding whether theevidence allowed extradition, without assessing the matter himself. When the response is properly read, it is apparent that this is notwhat the Minister did.

It is true that he relied on the judicial decision, but only in regard to the specific issues relating to that decisionwhich were provided to him, again, by the applicants in their submissions. They reiterated therein that their conduct was not criminal orthat there was an absence of evidence of an essential element of the offence. [33] Recalling that this aspect of the case is within the purview of the extradition judge and that he could consider the judicialconclusion in the case, the Minister nonetheless reviewed the entire record in order to rule on the extradition.

He responded specificallyto the concerns raised by the applicants and concluded that the weakness of the evidence did not make extradition unjust or oppressive.In that regard, it bears repeating that this assessment is wholly within his discretionary power. The applicants demonstrated no error inthe Minister’s approach that would justify the Court’s intervention. This ground cannot be allowed. [34] In fact, at the hearing, the attorney for the applicants conceded that the argument has no real scope unless viewed from theperspective of the children’s interest.

We will come back to that. [35] Simply put, the Court concludes that the applicants did not raise grounds in their initial application that would enable it tointervene. Hence, the initial application for judicial review must be dismissed. The new grounds [36] In Maisonneuve v. Canada (Minister of Justice),[9] our Court explained the following: [TRANSLATION] [25] Under s. 43 of the Act, the person sought may make submissions to the Minister, who must of course bear them in mind whenmaking the decision.

Does this mean that the Minister must inform applicants that submissions have not been received and, regardless,render a decision giving reasons? [26] The Act confers on the person sought the right to make submissions to the Minister within thirty days of the judicial decisionordering committal to custody to await surrender. The Minister may even accept these submissions after this deadline if thecircumstances so justify. [27] If the person sought does not exercise this right conferred by the Act, the Minister will only have the extradition file at his or herdisposal.

Even without the submissions of the person sought, the Minister must still ensure that the surrender should not be refused underthe Act. For example, if the file satisfies the Minister that extradition would be unjust or oppressive (s. 44(1)(

a) of the Act) or thatprosecution is barred by prescription under the law of the extradition partner (s. 46(1)(

a) of the Act), an extradition order must not bemade. On the other hand, without the insight provided by submissions from the person sought, the record may not reveal certain factsthat could cause the Minister to refuse to order surrender. [28] Whatever the situation, the Minister must ensure compliance with the Act in light of the facts brought to his or her knowledge. Butthis does not necessarily mean that the Minister is always obliged to provide reasons for his or her decision when the person sought hasmade no submissions.

In any case, the failure to give reasons does not mean that the Minster has not studied the file before making thedecision; in my view, it should be taken as a given unless the circumstances of the case suggest the contrary, which is not the situationhere. [37] Therefore, it is only logical that facts not in the extradition record and not brought to the Minister’s attention cannot be raised toimpugn the reasonableness of the Minister’s decision. [38] In the case at bar, the petitioners invoked three new grounds, which essentially involve two new issues: (1) the illegality of theirextradition in order to answer to Count No. 12 of the U.S. charges; and (2) the children’s interest. [39] The novelty of the first argument, referring to the illegality of the extradition, does not prevent us from discussing it, since allthe useful elements are in the extradition record.

The Minister’s alleged error can therefore be validly submitted to the Court forexamination. [40] According to the applicants, in the absence of specific evidence about that count in the judicial hearing, the Minister could notorder their extradition on Count No. 12 of the U.S. charges. With respect, the Supreme Court’s

interpretation of s. 58 of the Act inFischbacher provides a complete answer to this complaint. That

section does not compel the Minister to ensure that the offence forwhich the person is extradited is aligned with the evidence adduced at the hearing. In fact, it was precisely in regard to that

interpretationthat Fish J. dissented. Charron J. wrote the following: [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]

[ 41 ]

Section 58 (

b) of the Act explicitly provides that an order of surrender must: (

b) describe the offence in respect of which the extradition is requested, the offence for which the committal was ordered or the conduct for which the person is to be surrendered; [ 42 ] Thus, the applicants were aware of the Minister’s latitude in crafting the order of surrender.

But, not having deemed it worthwhile to make their submissions to him regarding the offences that - according to them - were to appear in the order of surrender, it is difficult for them to complain of that now. [11] In the circumstances, the Minister was permitted to rule as he did. [ 43 ] As for the fate of the children, the extradition record does not allow us to conclude that the Minister committed an error.

In fact, that argument can have an air of reality only after new submissions - manifestly not in the record - are made. [ 44 ] The applicants reiterated their argument regarding the weakness of the evidence, this time relating it to the children’s interest. According to them, in the context of such a weak extradition case the children’s interest dictates that the Minister reject the parents’ extradition. They ask the Court to weigh that situation, quash the Minister’s decision and return the case to him. [ 45 ] There is no reason to rule on this ground as formulated.

In adding the new dimension of the children’s interest to the weakness of the evidence, the applicants invite the Court to examine a ground requiring the assessment of factual elements that are not found in the extradition record or, as a result, in the Minister’s response. [ 46 ] Everyone agrees that the issue of the children was never brought to the Minister’s attention. We have no idea why, even today. The applicants were, in fact, represented by counsel and still are.

Moreover, they do not allege that they were poorly represented or that the attorney did not act according to their instructions. [ 47 ] It is equally difficult to understand why, since October 8, 2014, new submissions have not been made to the Minister under s. 43(2) of the Act . The applicants say that their family situation is obvious. In the same breath, they admit in their factum that having children is not in and of itself an obstacle to extradition - a statement with which I agree. That being so, the evidence crumbles.

Apart from the observation that there will necessarily be a separation, which is common to any extradition or committal, the applicants raised nothing in particular. [ 48 ] At the hearing, the applicants made the weak argument that before rendering his decision it was up to the Minister to inquire on his own initiative about all relevant circumstances - personal or otherwise - that might affect a person’s extradition, regardless of the submissions he received. This burden does not appear in either the Act or the jurisprudence.

Moreover, the Minister certainly cannot be criticized for failing to consider elements known only to the persons concerned and never submitted to him. [ 49 ] Judicial review in extradition matters is a delicate exercise that brings into play both the legality of a process and the marked political expediency that characterizes ministerial decision-making. For that reason alone, it is dangerous to rule on the impact of new arguments extrinsic to the extradition record and raised for the first time before the Court, given the Court cannot consider the political dimension in its analysis. [ 50 ] But there is more.

The Act provides for the possibility of the Minister agreeing to receive submissions after the 30-day deadline. Although the wording does not explicitly suggest that successive requests are authorized, the Minister may still agree to receive them. The respondent’s factum follows one line of authority [12] in acknowledging that possibility. At the hearing, the applicants’ attorney indicated that he would make new submissions to the Minister if the Court dismissed his application. [ 51 ] In the circumstances, it is not appropriate to allow the applicants’ request.

It is obvious that all their arguments - with the exception of the children’s interest, concerning a matter on which I will not comment - should be dismissed. [ 52 ] Hence, it cannot be a question of returning the case to the Minister, as the applicants suggest in their factum.

The Minister may, as mentioned, exercise his discretion in order to receive additional submissions. [ 53 ] I do not rule out the possibility that there will be other cases in which, in light of the facts, explanations or evidence in the record, it will be appropriate to suspend the debate on judicial review while awaiting a new response to new submissions, [13] but that avenue cannot be routine.

In the case at bar, the applicants’ new argument regarding the children’s interest and the conclusions sought are much more akin to a safeguard motion than a judicial review, but without the demonstration required by the former. In these circumstances, I do not believe there is reason to grant the application. [ 54 ] I therefore recommend that the application for judicial review be dismissed. MARTIN VAUCLAIR J.A.