Jószef Németh v. Jószefne Németh (a.k.a. Józsefne Nagy Szidonia), 2010 SCC 56

SUPREME COURT OF CANADA Citation : Németh v. Canada (Justice), 2010 SCC 56 , [2010] 3 S.C.R. 281 Date : 20101125 Docket : 33016 Between: Jószef Németh and Jószefne Németh (a.k.a. Józsefne Nagy Szidonia) Appellants and Minister of Justice of Canada Respondent - and - Barreau du Québec, Québec Immigration Lawyers Association and Canadian Council for Refugees Interveners Coram : McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

Reasons for Judgment : (paras. 1 to 124) Cromwell J. (McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. concurring) Németh v. Canada (Justice) , 2010 SCC 56, [2010] 3 S.C.R. 281 Jószef Németh and Jószefne Németh (a.k.a. Józsefne Nagy Szidonia) Appellants v. Minister of Justice of Canada Respondent

and Barreau du Québec, Québec Immigration Lawyers Association and Canadian Council for Refugees Interveners Indexed as: Németh v. Canada (Justice) 2010 SCC 56 File No.: 33016. 2010: January 13; 2010: November 25.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. on appeal from the court of appeal for quebec Extradition — Surrender — Convention refugees — Principle of “non-refoulement” — Minister of Justice ordered extradition of Convention refugees to Republic of Hungary — Whether Minister of Justice had legal authority to surrender for extradition refugees whose refugee status had not ceased or been revoked — If so, whether Minister reasonably exercised his authority to surrender — Extradition Act, S.C. 1999, c. 18, s. 44 — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 115 .

Extradition — Surrender — Evidence — Burden of proof — Convention refugees sought for extradition — Statutory grounds justifying Minister of Justice’s refusal to make surrender order — Whether s. 44(1)(

b) of Extradition Act makes risk of persecution mandatory ground of refusal of surrender — Whether Minister of Justice erred by imposing on refugees the burden of showing that they would suffer persecution if extradited — Extradition Act, S.C. 1999, c. 18, s. 44(1) (b). On arriving in Canada in 2001, the Némeths, a couple of Roma ethnic origin, applied for refugee status for themselves and their children, alleging that acts of violence had been committed against them in their country of origin, Hungary. In 2002, the Némeths and their children were granted refugee status and they later became permanent residents.

Years later, Hungary issued an international arrest warrant in respect of a charge of fraud that had been laid against the Némeths and requested Canada to extradite them. The Minister of Justice eventually ordered their surrender for extradition and the decision was upheld on review by the Court of Appeal. Held : The appeal should be allowed and the matter remitted to the Minister of Justice for reconsideration. At the heart of the protections accorded to refugees under the 1951 Convention Relating to the Status of Refugees (“Refugee Convention”) are the provisions relating to expulsion and return.

Article 33 of the Refugee Convention embodies in refugee law the principle of non-refoulement which prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations.

The main legislative vehicle for implementing Canada’s international refugee obligations is the Immigration and Refugee Protection Act (“ IRPA ”) and the provision specifically directed to fulfilling this obligation in relation to non- refoulement is s. 115 which provides that a “protected person”, which includes a refugee, “shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion”.

The meaning of the words “removed from Canada” in s. 115 when read in context has a specialized meaning in the IRPA that does not include removal by extradition. While it is accepted that protection against refoulement under the Refugee Convention applies to expulsion by extradition and where possible statutes should be interpreted in a way which makes their provisions consistent with Canada’s international treaty obligations and principles of international law, the presumption that legislation implements Canada’s international obligations is rebuttable.

If the provisions are unambiguous, they must be given effect and since s. 115 does not address removal by extradition, its clear meaning must be given effect. This

interpretation of s. 115 does not result in Canadian domestic law failing to respect its non-refoulement obligations under the Refugee Convention, as those obligations in the context of extradition are fully satisfied by a correct

interpretation and application of s. 44 of the Extradition Act (“ EA ”). Therefore, s. 115 of the IRPA does not

conflict with the EA because the prohibition on removal from Canada does not apply to extradition. The absence of a provision in the EA expressly addressing the extradition of a person with refugee status does not withhold that power from the Minister of Justice. The “silence” argument is premised on the fact that the EA addresses extradition only in the context of a refugee claimant, not a person with refugee status.

The position that an earlier finding of refugee status under the IRPA is binding on the Minister of Justice under the EA until it is ended using the procedures of cessation or revocation under the IRPA finds no explicit support in the text of the IRPA or the EA and is inconsistent with the apparent intention of Parliament. The Minister of Justice was intended to take the lead when a refugee’s rights are implicated in an extradition decision. The Refugee Convention does not bind the contracting states to any particular process for either granting or withdrawing refugee status.

Moreover, looking beyond the terms of the Refugee Convention, there are no international law norms to the effect that extradition may only be ordered if a previous finding that a person is a refugee has been formally set aside. Therefore, the Minister of Justice in dealing with an extradition request is not bound by a finding under the IRPA that the person sought is a refugee and can surrender that person for extradition even though his or her refugee status has not ceased or been vacated using the procedures provided under the IRPA .

The Minister of Justice’s power to surrender someone for extradition under the EA is discretionary. However, this discretion to order or to refuse surrender is structured and, in some circumstances, constrained by the other provisions of the statute, the applicable treaty and the Canadian Charter of Rights and Freedoms . Although there are no express references to refugees in the EA , it does provide for protections of persons who fear abusive treatment, persecution or torture in the requesting state. The most relevant provision in this regard is s. 44 which sets out mandatory reasons for refusal of surrender.

Under s. 44(1) of the EA , the Minister must refuse to make a surrender order if satisfied that (

a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or (

b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons.

These mandatory reasons for refusal of surrender prevail over provisions of an extradition treaty and as the exercise of the Minister’s power to surrender implicates the liberty and in some cases the security of the person sought, the Minister owes a duty of fairness both at common law and in accordance with the principles of fundamental justice under s. 7 of the Charter . There is thus an overlap between the provisions of s. 44 and the Charter . While s. 44(1)(

a) is not limited to conduct that would constitute a breach of the Charter , it is nonetheless the case that where surrender would be contrary to the principles of fundamental justice, it will also be unjust and oppressive within the meaning of s. 44(1)( a ). Furthermore, where extradition is sought for the purpose of persecuting an individual on the basis of a prohibited ground as contemplated by the first branch of s. 44(1)( b ), ordering surrender will be contrary to the principles of fundamental justice. Section 44(1) (

b) of the EA is Canada’s primary legislative vehicle to give effect to its non-refoulement obligations when a refugee is sought for extradition. This provision is inspired by the provisions in the European Convention on Extradition and the United Nations’ Model Treaty on Extradition and the similarity of their texts makes clear that the provision was adopted to serve the purpose of protecting against prejudice in the requesting state, particularly when extradition would constitute a violation of the requested state’s obligation in relation to non-refoulement . Both the English and the French texts of s. 44(1) (

b) support the view that it contains two branches and that the “position” of the party is not limited to his or her position in relation to prosecution or punishment. Reading the

section as being confined to prejudice in the prosecution or punishment of the refugee would not allow the

section to achieve the purpose of giving effect to Canada’s obligations with respect to non-refoulement . Given the text and purpose of s. 44(1)(

b) and the

interpretation which has been given to the European Convention on Extradition on which it is based, the closing words of s. 44(1) (

b) are read broadly as protecting a refugee against refoulement which risks prejudice to him or her on the listed grounds in the requesting state whether or not the prejudice is strictly linked to prosecution or punishment. Section 44(1)(

b) must be considered whenever the Minister’s surrender decision concerns a person with refugee status in Canada and the requesting state is the one from which the refugee has been granted protection. Refusal of surrender is mandatory if the Minister is satisfied that the conditions which led to conferral of refugee status still exist and it is not shown that the person sought was or has become ineligible for refugee status. An individual’s status as a refugee under the Refugee Convention has a temporal aspect; the status depends on the situation that exists at the time protection is sought.

In the same way, the relevant time for assessing entitlement to non-refoulement protection is the time removal is sought. The same principle applies to s. 44(1) ( b ). The question of entitlement to protection against refoulement arises at the time surrender is being considered and must be assessed in light of the circumstances at the time.

Where a person has been found, according to the processes established by Canadian law, to be a refugee and therefore to have at least a prima facie entitlement to protection against refoulement , that determination must be given appropriate weight by the Minister in exercising his duty to refuse extradition on the basis of risk of persecution. There should not be a burden on a person who has refugee status to persuade the Minister that the conditions which led to the conferral of refugee protection have not changed.

This approach is not only consistent with Canada’s domestic law in relation to cessation of refugee protection on the basis of changed circumstances, but with Canada’s international undertakings with respect to non-refoulement of refugees. This is a more practical and fair approach than placing a burden on refugees to prove current conditions in the country from which they have been absent perhaps for an extended period. The obligations under the Refugee Convention and the analogy to the cessation and revocation provisions under the IRPA suggest that, under s. 44(1) (

b) of the EA , a refugee should not have to establish at the surrender phase that the conditions which led to conferring refugee status, and thus to non-refoulement protection, continue to exist. When the Minister acting under the EA is in effect determining that refugee protection (and thus non-refoulement protection under the Refugee Convention) of a person sought is excluded or is no longer required by virtue of a change of circumstances in the requesting country, he must be satisfied on the balance of probabilities that the person sought is no longer entitled to refugee status in Canada.

The Minister of Justice must consult with the Minister of Citizenship and Immigration concerning current conditions in the requesting state in considering whether the person sought is no longer entitled to refugee protection on the basis of changed circumstances. Finally, a duty of fairness applies to the Minister’s

consideration of the issue under s. 44(1)(

b) which includes providing the refugee with the case to meet, providing a reasonableopportunity to challenge that case as well as a reasonable opportunity to present his or her own case. In this case, the Minister’s approach to the exercise of his powers failed to give sufficient weight or scope to Canada’snon-refoulement obligations in light of which those powers must be interpreted and applied. The Minister’s consideration of theNémeths’ case was fundamentally flawed. He focussed exclusively on s. 44(1)(

a) of the EA in requiring the Némeths to establish, on thebalance of probabilities, that they would face persecution on their return to Hungary and that the persecution they face would shock theconscience or be fundamentally unacceptable to Canadian society. He imposed too high a threshold for determining whether theNémeths would face persecution on their return and placed the burden of proof on this issue on the Némeths notwithstanding the earlierfinding that they were refugees. Further, the Minister failed to address s. 44(1)(

b) which is the most relevant provision of the EA inrelation to their surrender. The Minister applied incorrect legal principles and acted unreasonably in reaching his conclusions. Cases Cited Referred to: Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761; R. v. Ulybel Enterprises Ltd., 2001 SCC 56,[2001] 2 S.C.R. 867; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Rizzo & Rizzo ShoesLtd. (Re), (SCC), [1998] 1 S.C.R. 27; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559;R. v.

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Secretary of State for the HomeDepartment ex p. Sivakumaran, [1988] 1 A.C. 958; M38/2002 v. Minister for Immigration and Multicultural and Indigenous Affairs,[2003] FCAFC 131, 199 A.L.R. 290; Zaoui v. Attorney-General (No. 2), [2005] 1 N.Z.L.R. 690; Immigration and Naturalization Servicev. Cardoza-Fonseca, 480 U.S. 421 (1987). Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, s. 7. Canadian Human Rights Act, R.S.C. 1985, c. H-6. Criminal Code, R.S.C. 1985, c. C-46, s. 380(1). Extradition Act, S.C. 1999, c. 18, ss. 3(1), 7, 15, 29(1)(a), 40, 44, 45(1), (2), 46, 47.

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L.R. (3d) 16, 2009 CarswellQue 8504, [2009] Q.J. No. 271 (QL), dismissing an application for judicial review of a decision by the Minister of Justice of Canada ordering the appellants’ surrender. Appeal allowed. Marie-Hélène Giroux and Clément Monterosso , for the appellants. Ginette Gobeil and Janet Henchey , for the respondent. Pierre Poupart and Ronald Prégent , for the intervener Barreau du Québec. Johanne Doyon , E laine Doyon and Dan Bohbot , for the intervener the Québec Immigration Lawyers Association. John Norris and Brydie Bethell , for the intervener the Canadian Council for Refugees.

The judgment of the Court was delivered by Cromwell J. — I. Introduction [ 1 ] This appeal requires us to reconcile Canada’s competing obligations with respect to extradition and refugee protection. Under international treaties and domestic law, Canada has undertaken not to return refugees to face the persecution they fled. This is known as the principle of non-refoulement and it is a cornerstone of refugee protection. Canada also has obligations under treaties and domestic law to extradite persons who are sought by foreign states to face criminal prosecutions or serve sentences.

These are important obligations that relate not only to Canada’s engagements with other states, but also to the effectiveness of law enforcement. These two obligations in relation to non-refoulement and extradition may collide, however, when Canada is faced with a request to extradite refugees to a state which they fled to avoid persecution. This case is an example. [ 2 ] The appellants came to Canada and were given refugee protection; they persuaded the authorities that they had a well-founded fear of persecution in their native Hungary on the basis of their Roma ethnic origin.

Years later, Hungary requested Canada to extradite them and the Minister of Justice eventually ordered their surrender for extradition. His decision was upheld on review by the Quebec Court of Appeal: 2009 QCCA 99 , 2009 CarswellQue 8504. The appellants contend on appeal to this Court that, because of Canada’s non-refoulement obligations, they may not be extradited back to Hungary so long as they retain their refugee status in Canada.

The respondent takes the view that the appellants may be extradited in spite of their refugee status because they are charged in Hungary with a serious non-political crime and have failed to establish any continuing risk of persecution upon their return. [ 3 ] The resolution of the appeal requires an

interpretation of the Extradition Act , S.C. 1999, c. 18 (“ EA ”), and the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“ IRPA ”), that reconciles the competing obligations in relation to extradition and non-refoulement. I agree with the respondent that, under certain conditions, the appelants may be extradited to their country of origin even though their refugee status under Canadian law has not formally ceased or been revoked. However, my view is that the Minister of Justice (“Minister”) did not apply the correct legal principles when he decided to surrender the appellants for extradition.

He imposed on them the burden of showing that they would suffer persecution if extradited and by doing so, gave insufficient weight to the appellants’ refugee status and to Canada’s non-refoulement obligations. I would therefore allow the appeal and remit the matter to the Minister of Justice for reconsideration according to law. II. Facts and Proceedings [ 4 ] On arriving in Canada in 2001, the appellants, who are a couple, applied for refugee status for themselves and their children, alleging that acts of violence had been committed against them in their country of origin, Hungary.

Their application was based on three incidents between 1997 and 2001 in which the male appellant, together on one occasion with the female appellant, was attacked

by Hungarian citizens because of their Gypsy ethnic origin. The appellants and their children were granted refugee status and became permanent residents . [ 5 ] Some two years later, Hungary issued an international arrest warrant in respect of a charge of fraud that had been laid against the appellants.

The Hungarian authorities allege that in early November 2000, the couple sold the right of lease for premises in Budapest for approximately C$2,700, despite the fact that they did not possess the right to lease the flat. [ 6 ] The Minister sought an order from the Superior Court of Quebec for the appellants’ committal on the Canadian offence of fraud contrary to s. 380(1) of the Criminal Code , R.S.C. 1985, c. C-46, which corresponds to the conduct alleged against them in Hungary. The committal order was granted and has not been appealed. [ 7 ] The Minister then ordered their surrender.

In reaching his decision, he considered the principle of non-refoulement , but concluded it did not stand in the way of ordering the appellants’ surrender. The Minister noted first that there is an exception to non- refoulement with respect to persons who are accused of a serious non-political offence which he noted was defined in the immigration context to be an offence punishable by imprisonment of 10 years or more. Fraud, he noted, is such a crime.

He did not, however, address the appellants’ contention that, given the amount of the alleged deprivation, the offences alleged against them would not attract a punishment of 10 years in Canada. The Minister then turned to the issue of risk of persecution. He stated his view that persons challenging their surrender on the basis that they will be persecuted in the requesting state must establish two things on the balance of probabilities: that the persecution would sufficiently shock the conscience or be fundamentally unacceptable to Canadian society and that they will in fact be subjected to this persecution.

The relevant time for assessing this, he said, is the present, not the time at which refugee status had been granted, in this case, some six years earlier. To assist his consideration of risk the appellants would face if returned to Hungary, the Minister sought and received the views of the Department of Citizenship and Immigration.

The advice was to the effect that, following Hungary’s accession to the European Union in 2004, there was no serious possibility that the appellants would be subjected in Hungary to persecution on the basis of their Roma origin. [ 8 ] The appellants sought judicial review of this decision in the Quebec Court of Appeal. Doyon J.A., writing for the Court of Appeal, dismissed the joint application for judicial review. In his view, the respondent had jurisdiction to order the surrender of the appellants after having consulted with the Minister of Citizenship and Immigration (“MCI”) about this.

Doyon J.A. also concluded that the respondent’s decision was reasonable: [ translation ] He could reasonably conclude that the situation in Hungary is such that extradition of the applicants is not oppressive or unjust, does not shock the conscience of Canadians, and is not unacceptable. The opinion of the Minister of Citizenship and Immigration authorized him to conclude that the situation in Hungary has changed since the applicants’ departure.

Hungary’s accession to the European Union in May 2004 is proof that the country has satisfied certain criteria with regard to the stability of its democratic institutions, the rule of law, human rights, and the respect and protection of minorities; it has also had to harmonize its laws and institutions with those of the European Union.

The detailed risk analysis sent by the Minister of Citizenship and Immigration permits the assertion that the respondent could reasonably conclude that there is no longer a risk of persecution in Hungary on the basis of racial origin and that these changes indicate that the situation there is completely different from the situation there about a decade ago. [para. 38] III. Issues and Standard of Review [ 9 ] The case raises two main issues: 1. Does the Minister have the legal authority to surrender for extradition a refugee whose refugee status has not ceased or been revoked? 2.

If so, did the Minister exercise that authority reasonably in this case? [ 10 ] The standard of judicial review is not contentious. The Minister’s decision to surrender for extradition should be treated with deference; it will generally be reviewed for reasonableness. However, in order for a decision to be reasonable, it must relate to a matter within the Minister’s statutory authority and he must apply the correct legal tests to the issues before him. As LeBel J. said on behalf of the Court in Lake v.

Canada (Minister of Justice) , 2008 SCC 23 , [2008] 1 S.C.R. 761, at para. 41 : [T]he Minister must, in reaching his decision, apply the correct legal test. The Minister’s conclusion will not be rational or defensible if he has failed to carry out the proper analysis. If, however, the Minister has identified the proper test, the conclusion he has reached in applying that test should be upheld by a reviewing court unless it is unreasonable. . . .

Given the Minister’s expertise and his obligation to ensure that Canada complies with its international commitments, he is in the best position to determine whether the factors weigh in favour of or against extradition. [Emphasis added.] IV. Analysis A. Introduction [ 11 ] The parties advance two competing approaches to the question of how to reconcile Canada’s obligations with respect to non-refoulement and extradition.

The appellants (to put their position in broad terms) submit that the powers to extradite under the EA must be read as being subject to the detailed scheme for the treatment of refugees under the IRPA . In brief, a person with refugee status cannot be extradited until the refugee status has ceased or been revoked through the processes set out in the IRPA .

The respondent, on the other hand, submits that the interaction of extradition and non-refoulement is addressed mainly through the EA and, more particularly, through the mandatory and discretionary bases on which the Minister may refuse surrender of a person sought for extradition. [ 12 ] My analysis will be structured around these two competing approaches. In the next

section I will explain why in my view, the appellants’ central contention — that the power to surrender for extradition is subject to the refugee process under the IRPA —

cannot be accepted. In the following section, I will address the respondent’s position, which I largely accept, that protection against refoulement is addressed in the extradition context by the mandatory and discretionary bars of surrender in the EA . I will also explain why, in my view, the Minister applied the wrong legal tests in exercising those powers in this case. B. The Minister’s Authority to Extradite a Refugee [ 13 ] The appellants’ and supporting interveners’ main submission is that, as a matter of statutory

interpretation, the Minister dealing with an extradition request is bound by a finding under the IRPA that the person sought is a refugee and cannot surrender that person for extradition unless his or her refugee status has ceased or been vacated using the procedures provided for under the IRPA . This limitation, the appellants say, must be read into the EA for three main reasons. I will refer to these submissions as the “conflict” argument, the “silence” argument and the “fair process” argument. The first two will be addressed here and the third in the next

section of my reasons.

(1) The Conflict Argument [ 14 ] The first submission is that the Minister’s powers under the EA should be interpreted as not applying to refugees in order to avoid a conflict between the provisions of the EA and the IRPA . This submission is supported by the principle of statutory

interpretation which presumes harmony, coherence, and consistency between statutes dealing with the same subject matter: R. v. Ulybel Enterprises Ltd. , 2001 SCC 56 , [2001] 2 S.C.R. 867, at paras. 30 and 52 ; Ruth Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 223-25. [ 15 ] The supposed conflict is between the non-refoulement provision (s. 115) of the IRPA and the Minister’s powers of surrender under the EA .

Section 115 of the IRPA provides that a “protected person”, which includes a refugee, “ shall not be removed from Canada to a country where they would be at risk of persecution”. The general powers of the Minister to surrender a person for extradition under the EA have no express limitation or exception relating to refugees. Thus, it is argued that the statutes conflict because the IRPA prohibits removal of a refugee to a place he or she will face persecution while the EA permits the Minister to do so by means of surrendering the person for extradition.

The appellants’ position is that this conflict should be avoided by interpreting the Minister’s power of surrender under the EA as being subject to a requirement that a refugee may only be surrendered to the country he or she fled if the refugee’s status has ceased or been revoked by means of the processes set out in the IRPA . [ 16 ] In my view, there is no conflict between the IRPA and the EA because the prohibition on removal from Canada under s. 115 of the IRPA does not apply to extradition.

Before turning to my reasons for reaching that conclusion, it will be helpful to place the issue in the broader context of refugee protection in Canada. [ 17 ] Canada has ratified the 1951 Convention Relating to the Status of Refugees , Can. T.S. 1969 No. 6 (“Refugee Convention”), as well as the 1967 Protocol Relating to the Status of Refugees , Can. T.S. 1969 No. 29. The Refugee Convention defines “refugee” and sets out a series of obligations to them on the part of contracting states.

While the Refugee Convention applied only to events occurring before January 1, 1951 (Article 1A(2)) and, at the option of the contracting party, only to events occurring in Europe, the state parties to the 1967 Protocol agreed to eliminate this temporal and geographical limitation on the Refugee Convention’s operation, with certain exceptions not relevant here (Article 1).

Thus, under the Refugee Convention and the Protocol, the definition of refugee includes “any person who . . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country” (Refugee Convention,

Article 1A(2)). [ 18 ] At the heart of the protections accorded to refugees under the Refugee Convention are the provisions relating to expulsion and return. Most relevant to the appeal is

Article 33 which addresses the return of refugees to places where they may face persecution. This

article embodies in refugee law the principle of non-refoulement which has been described as the cornerstone of the international refugee protection regime: United Nations High Commissioner for Refugees, Guidance Note on Extradition and International Refugee Protection (April 2008). Underlining the centrality of this provision is the fact that, by virtue of

Article 42 of the Refugee Convention, ratifying states may not make reservations to the non-refoulement protections afforded by

Article 33. [ 19 ] Stated in broad and general terms, the principle of non-refoulement prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations.

The object of the principle is the prevention of human rights violations and it is prospective in scope: Kees Wouters, International Legal Standards for the Protection from Refoulement: A Legal Analysis of the Prohibitions on Refoulement Contained in the Refugee Convention, the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Convention Against Torture (2009), at p. 25.

The principle of non-refoulement has been enlarged beyond its application to refugees by modern international human rights law, but it is its scope in relation to the Refugee Convention that is pertinent to this appeal: William A. Schabas, “Non-Refoulement”, in Expert Workshop on Human Rights and International Co-operation in Counter-Terrorism: Final Report (2007), 20, at p. 23. [ 20 ]

Article 33 of the Refugee Convention provides:

Article 33 Prohibition of Expulsion or Return (“Refoulement”) 1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly

serious crime, constitutes a danger to the community of that country. [21] The main legislative vehicle for implementing Canada’s international refugee obligations is the IRPA. Among thestatute’s stated objectives is fulfilling Canada’s international legal obligations with respect to refugees: s. 3(2)(b). The IRPA providesthat it is to be construed and applied in a manner that ensures that decisions taken under it are consistent with the Canadian Charter ofRights and Freedoms and comply with international human rights instruments to which Canada is signatory: s. 3(3)(

d) and (f). Thestatute expressly incorporates certain provisions of the Refugee Convention. With some exceptions, the MCI is responsible for theadministration of the Act: s. 4(1). [22] That brings me to the provision in the IRPA on which the appellants rely heavily, s. 115.

It is a statutory expressionof the principle of non-refoulement providing that a protected person (which, by virtue of s. 95(2) includes a person on whom refugeeprotection is conferred) “shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race,religion, nationality, membership in a particular social group or political opinion”. The full provision reads: Principle of Non-refoulement 115.

(1) A protected person or a person who is recognized as a Convention refugee by another country to which theperson may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race,religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment orpunishment. (2) Subsection (1) does not apply in the case of a person (

a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger tothe public in Canada; or (

b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, inthe opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of actscommitted or of danger to the security of Canada. [23]

Section 115 is directed to fulfilling Canada’s obligations under the Refugee Convention in relation to non-refoulement and there is, accordingly, a close correspondence between it and the relevant provisions of the Refugee Convention.

Thegrounds on which removal is prohibited in s. 115(1) (i.e., risk of persecution for reasons of race, religion, nationality, membership in aparticular social group or political opinion or a risk of torture or cruel and unusual treatment or punishment) closely parallel those inArticle 33 (life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group orpolitical opinion).

The exceptions to the application of s. 115(1) as set out in s. 115(2) (serious criminality, danger to the public,violating human rights or danger to Canada’s security) closely follow the exclusions from the definition of refugee in

Article 1F of theRefugee Convention (war crime, crime against humanity, serious non-political crime) and the grounds for expulsion of refugees providedfor in

Article 32 (national security or public order). [24] I return, then, to the contention that s. 115, and particularly the phrase “shall not be removed from Canada”,prohibits extradition of a refugee. The submission is that the plain meaning of the words includes removal by extradition, that thisinterpretation is necessary to implement Canada’s obligations under the Refugee Convention; and that the judgment of the Court inSuresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, supports this view.

The respondent, on theother hand, submits that “removal” is a term of art under the IRPA and applies only to removal orders made under that Act. [25] For the following reasons, I agree with the respondent. (

a) Ordinary Meaning [26] The appellants emphasize the ordinary meaning of the words “removed from Canada” in s. 115(1) and thatextradition is a form of “removal”. I agree, of course, that the ordinary meaning of these words is broad enough to include removal byany means including extradition. However, according to the often repeated “modern principle” of statutory

interpretation, the wordsused in the IRPA must be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act,the object of the Act, and the intention of Parliament: Rizzo & Rizzo Shoes Ltd.(Re), (SCC), [1998] 1 S.C.R. 27, atpara. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. When this is done, it becomes clearin my view that the term “removed” has a specialized meaning in the IRPA and that it does not include removal by extradition. [27]

Section 115 must be considered in the context of the other provisions of the statute which also deal with the subjectof removal. Division 5 of

Part I of the IRPA addresses “Loss of Status and Removal”. The term “removal” is used in connection with theterm “removal order” which is a specific order authorized by the IRPA in particular circumstances set out in detail therein: see, e.g., ss.44(2), 45(

d) and 48. “Removed” and “removal”, therefore, are words used in relation to particular procedures under the IRPA. Thisview is reinforced by the Immigration and Refugee Protection Regulations, SOR/2002-277.

Section 53 of the IRPA provides that theregulations made under the IRPA may include provisions respecting “the circumstances in which a removal order shall be made orconfirmed against a permanent resident or a foreign national”: s. 53(b).

Part 13 of the Regulations, addresses removal.

Section 223specifies that there are three types of removal orders: departure orders, exclusion orders and deportation orders. Surrender orders underthe EA are not included. The linking of removal to these three types of orders further reinforces the view that the words “removed” and“removal” refer to particular processes under the IRPA. [28] This view is also supported by the terms of s. 115 itself. Section 115(1) provides that a protected person may not be“removed from Canada” to face persecution, risk of torture or cruel and unusual punishment.

However, s. 115(2) creates exceptions tothis prohibition in relation to persons who are inadmissible on certain grounds. Under s. 115(2)(a), protection against removal in s.

115(1) does not apply in the case of a person who is inadmissible on grounds of serious criminality and who in the opinion of the MCIconstitutes a danger to the public. Inadmissibility on the grounds of serious criminality is addressed under s. 36 of the IRPA. Unders. 115(2)(b), the protection does not apply to persons inadmissible on grounds of security, violating human or international rights ororganized criminality if, in the opinion of the MCI, the person should not be allowed to remain in Canada on the basis of the nature andseverity of acts committed or of danger to the security of Canada.

Inadmissibility on the grounds of security, human rights violationsand organized criminality are dealt with in the IRPA: ss. 34, 35 and 37. Thus, s. 115 deals with inadmissibility as defined under the IRPAand calls for the exercise of discretion by the MCI in relation to the danger of the person remaining in Canada. This, in my view, groundsthe

section in the processes of determining inadmissibility and ordering removal under the IRPA. It does not address extradition. [29] It is also worth noting that while s. 115 of the IRPA does not refer to extradition, it is mentioned elsewhere in theIRPA. So, as we shall see shortly, s. 105 of the IRPA deals explicitly with certain aspects of the interaction of extradition proceedingsand refugee claims and s. 112(2)(

a) of the IRPA precludes persons from applying for protection under s. 112(1) when they have beenordered removed from Canada and have extradition proceedings pending against them. The IRPA, therefore, in certain instancesexpressly deals with the interplay between extradition and the refugee and the removal process. The fact that it does supports aninference that when Parliament intended to address that interplay, it did so expressly.

There is, as noted, no express provision in theIRPA dealing with the extradition of refugees. [30] Finally on this point, the time limits for the Minister’s surrender decision under the EA make it unlikely thatParliament intended to require him to await an application by the MCI under the IRPA for revocation or cessation of refugee status beforebeing able to surrender a refugee. Sections 40(1) and (5)(

b) of the EA require the Minister to order surrender, if he so decides, within 90days after the person’s committal, with the possibility of a 60-day extension when the person has made submissions.

These timelines areunrealistically short to allow the Minister to request the MCI to apply to the Refugee Protection Division for cessation or revocation of aperson’s refugee status and for that process to run its course as a precondition for the exercise of the Minister’s surrender powers. [31] To conclude on this point, my view is that when s. 115 is read in context, it is clear that the words “removed fromCanada” in s. 115(1) refer to the removal processes under the IRPA, not to surrender for extradition under the EA. There is, therefore, noconflict between the two statutes. (

b) Canada’s International Obligations [32] The appellants submit that as s. 115 is addressed to the issue of non-refoulement it should be interpreted in a waythat is consistent with Canada’s non-refoulement obligations under the Refugee Convention. That obligation under

Article 33 is not to“expel or return (‘refouler’) a refugee” and it is now widely accepted that this obligation applies to removal by way of extradition. Itfollows, the submission goes, that “removal” in the IRPA should receive the same broad

interpretation. Only this

interpretation, it isargued, is consistent with Canada’s obligations in relation to non-refoulement under the Refugee Convention. While I agree with theprinciple on which this submission is based, I do not agree that it applies here. [33] I accept that protection against refoulement under the Refugee Convention applies to expulsion by extradition. Admittedly, the Refugee Convention does not explicitly say so and a number of states in 1951 were of the view that it did not apply toextradition.

However, this restrictive view is not consistent with the wording of the Refugee Convention or its obvious human rightspurpose and this limited view is no longer generally accepted. The wording of the protection — “No Contracting State shall expel orreturn (‘refouler’) a refugee in any manner whatsoever” — is so broad that it must include return by means of extradition and thecommentators are unanimous in the view that it does: Guy S.

Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rded. 2007), at pp. 257-62; Wouters, at p. 136; Sibylle Kapferer, United Nations High Commissioner for Refugees, The Interface betweenExtradition and Asylum, November 2003; Elihu Lauterpacht and Daniel Bethlehem, “Avis sur la portée et le contenu du principe du non-refoulement” in Erika Feller, Volker Türk and Frances Nicholson, eds., La protection des réfugiés en droit international (2008), 119, atpp. 144-45; United Nations High Commissioner for Refugees, Problems of Extradition Affecting Refugees, 16 October 1980, No. 17(XXXI) — 1980; Cordula Droege, “Transfers of detainees: legal framework, non-refoulement and contemporary challenges” (2008), 90Int’l Rev.

Red Cross 669, at p. 677. [34] I also accept, of course, that, where possible, statutes should be interpreted in a way which makes their provisionsconsistent with Canada’s international treaty obligations and principles of international law. As LeBel J. noted in R. v.

Hape, 2007 SCC26, [2007] 2 S.C.R. 292, at para. 53, it is presumed that the legislature acts in compliance with Canada’s obligations as a signatory ofinternational treaties and as a member of the international community as well as in conformity with the values and principles ofcustomary and conventional international law: see also, for example, Zingre v. The Queen, (SCC), [1981] 2 S.C.R. 392,at pp. 409-10; Ordon Estate v. Grail, (SCC), [1998] 3 S.C.R. 437, at para. 137; Baker v. Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, at para. 70; and Schreiber v.

Canada (Attorney General),2002 SCC 62, [2002] 3 S.C.R. 269, at para. 50. [35] The presumption that legislation implements Canada’s international obligations is rebuttable. If the provisions areunambiguous, they must be given effect: see, e.g., Schreiber, at para. 50. As I have discussed at length earlier, s. 115 does not addressremoval by extradition and so its clear meaning must be given effect. Moreover, I do not accept that this

interpretation of s. 115 results inCanadian domestic law failing to respect its non-refoulement obligations under the Refugee Convention. My view is that thoseobligations in the context of extradition are fully satisfied by a correct

interpretation and application of s. 44 of the EA, as I will explain inthe next

section of my reasons. [36] To sum up, my view is that s. 115 cannot and need not be interpreted as applying to removal by extradition. (

c) Suresh [37] It is submitted that Suresh, at para. 7, supports the position that s. 115 prohibits extradition of a refugee.Respectfully, however, my view is that Suresh does not provide support for this view. [38] Suresh was concerned with deportation of a refugee on security grounds; it had nothing to do with extradition.

Deportation, unlike extradition, is one of the forms of removal provided for in the IRPA Regulations. In para. 7 of the reasons in Suresh , which is the first paragraph of the

section headed “Facts and Judicial Proceedings”, there is a brief reference to s. 53(1) of the Immigration Act , R.S.C. 1985, c. I-2, the predecessor provision of the present s. 115 of the IRPA . The Court stated: “Recognition as a Convention refugee has a number of legal consequences; the one most directly relevant to this appeal is that, under s. 53(1) of the Immigration Act , generally the government may not return (‘ refouler ’) a Convention refugee ‘to a country where the person’s life or freedom would be threatened’” (para. 7).

While the Court used the word “return” instead of the statutory word “remove”, I do not consider this brief description of non-refoulement , which I note starts with the word “generally”, as helpful authority about how the relevant

section of the IRPA relates to extradition. [ 39 ] I conclude that s. 115 of the IRPA does not address removal by extradition. There is, therefore, no conflict between this provision and the provisions of the EA authorizing the Minister to surrender a refugee for extradition. I reject the conflict argument.

(2) The “Silence” Argument [ 40 ] The EA expressly addresses extradition of a refugee claimant (see s. 40(2) ) but it is silent in relation to extradition of a person with refugee status . On this foundation, the appellants erect their silence argument: the absence of a provision in the EA expressly addressing the extradition of a person with refugee status should be understood as withholding that power from the Minister. This view is reinforced, according to the submissions, by two other considerations.

First, claims for refugee status are determined by specialized processes and decision-makers under the IRPA ; the powers of the Minister under the EA should therefore not be interpreted to allow him in effect to usurp the jurisdiction of these specialized processes and decision-makers. Second, the suspension of refugee proceedings when extradition proceedings are initiated, as provided for in s. 105 of the IRPA , does not apply to all extraditable offences. The suspension applies only to extradition proceedings in relation to offences punishable by 10 years or more of imprisonment.

Thus, the legislative intent is to leave in place the normal refugee process for persons sought with respect to less serious offences. This, it is argued, supports the view that suspension is the exception and the general rule is that the refugee process remains in place for individuals not falling within that exception.

The appellants, as persons who have previously been accorded refugee protection, do not fall within the exception and therefore are not subject to removal except in accordance with the provisions of the IRPA . [ 41 ] As noted earlier, I accept the two principles underlying these submissions: non-refoulement protection under the Refugee Convention applies to expulsion by extradition and that our domestic laws are presumed to comply with our international obligations. I do not agree, however, that applying these principles in this case leads where the appellants would take us.

In my view, the IRPA does not and was not intended to implement Canada’s international obligations against refoulement in the context of expulsion by extradition. That role, as I will explain in the next

section of my reasons, is assigned to s. 44 of the EA . [ 42 ] The “silence” argument is premised on the fact that the EA addresses extradition only in the context of a refugee claimant, not a person with refugee status. However, applying the same reasoning to the IRPA , one notes that the IRPA itself expressly deals with extradition in only two contexts, ss. 112 and 105 , neither of which relates to extradition of a refugee. In both contexts, the legislative intent is to give primacy to the extradition proceedings. [ 43 ] Extradition is referred to in s. 112 of the IRPA . That provision deals with applications for protection by those subject to removal orders. Section 112(2) (

a) provides that persons may not apply for such protection if they are the subject of an authority to proceed under the EA . [ 44 ] Another context in which extradition is mentioned in the IRPA is in s. 105 dealing with the extradition of persons with pending refugee claims. The

section provides that the Refugee Protection Division and the Refugee Appeal Division cannot commence and must suspend consideration of any matter concerning a person against whom an authority to proceed has been issued under s. 15 of the EA with respect to certain offences, namely those punishable under federal law by at least 10 years’ imprisonment. The suspension lasts until a final decision under the EA with respect to the discharge or surrender of the person has been made. If the person is discharged at the extradition proceedings, the refugee proceedings may be commenced or continued: s. 105(2).

If the person is ordered surrendered for an offence punishable by a term of imprisonment of at least 10 years, the order of surrender is deemed to be a rejection of the claim for refugee protection based on

section F(

b) of

Article 1 (serious non-political crime) of the Refugee Convention: s. 105(3). The deemed rejection may not be appealed and a person who has not made a claim for refugee status before the order of surrender was made may not do so thereafter: ss. 105(4) and (5). [ 45 ] These provisions address only those seeking refugee status; not those who already have been granted refugee protection. Further, the provisions do not apply in the case of all offences for which extradition may be ordered.

As we shall see, extradition may be ordered if the conduct with respect to which extradition is sought, had it occurred in Canada, would have constituted an offence that is punishable by a term of imprisonment of two years or more (or as specified in the extradition agreement): s. 3(1) of the EA (I put aside the special provision in relation to specific agreements in s. 3(1) ( b )(i)).

However, the suspension of proceedings before the Refugee Protection Division, as set out in s. 105 of the IRPA , applies only if extradition is sought with respect to conduct which under Canadian law is punishable by imprisonment of 10 years or more: s. 105(1). Presumably, this is to permit the suspension provisions to apply only to those excluded from refugee status under the serious crime exception set out in

section F of

Article 1 of the Refugee Convention. Thus, for these purposes Canada has defined “serious crimes” as those punishable by 10 years or more of imprisonment and has decided that if there is sufficient evidence to warrant committal in extradition proceedings, the “serious reasons for considering” test under the Refugee Convention in relation to serious non-political crimes has been met. [ 46 ] These suspension provisions were added to the IRPA as consequential amendments when the EA was enacted in 1999. Their purpose was explained by Departmental officials testifying before Parliamentary committees.

Resort to this material is appropriate where, as here, it is relevant and reliable and provided it is used with caution and not given undue weight: Sullivan, at pp. 609-14; Reference re Firearms Act (Can.) , 2000 SCC 31 , [2000] 1 S.C.R. 783, at para. 17 ; Castillo v.

Castillo , 2005 SCC 83 , [2005] 3 S.C.R. 870, at para. 23 ; Canada 3000 Inc. (Re) , 2006 SCC 24 , [2006] 1 S.C.R. 865, at paras. 57-59 . [ 47 ] The amendments sought to harmonize the extradition and refugee recognition processes and to entrust to the Minister of Justice the ultimate decision about the extradition of a person claiming refugee status: see, for example, testimony of Jacques

Lemire, Senior Counsel, International Assistance Group, Department of Justice, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs , Issue No. 60, 1st Sess., 36th Parl., March 10, 1999, at pp. 60:6 et seq. ; testimony of Gerry Van Kessel (Director General, Refugees, Department of Citizenship and Immigration, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Human Rights (November 17, 1998). As Mr. Van Kessel put it during his testimony: . . . the basic question we believe we face is how to deal with persons who are facing extradition and make refugee claims.

At the present time they are separate processes. . . . Bill C-40 [which became the 1999 Extradition Act ] changes will legislate the rules for the interaction between the extradition process and the refugee determination process for the first time. . . . Bill C-40 also says protection [i.e. of refugees] remains an issue and a concern that the Minister of Justice needs to deal with, and that is also dealt with in Bill C-40.

The choice made there is that the Minister of Justice, before making a final decision on extradition or surrender order, shall refuse to make a surrender if the refugee definition applies . . . . In a sense, what has really changed here is who the decision-maker is. [Emphasis added; at 11:45 and 12:05.] [ 48 ] This evidence is consistent with the text and scheme of the EA and the IRPA : the Minister of Justice was intended to take the lead when a refugee’s rights are implicated in an extradition decision.

In addition, the reference in the evidence to the Minister’s duty to refuse surrender “if the refugee definition applies” clearly refers to s. 44 of the EA , not to s. 115 of the IRPA . I will come back to this point. [ 49 ] The appellants and interveners submit, in effect, that the earlier finding of refugee status under the IRPA is binding on the Minister under the EA until it is ended using the procedures of cessation or revocation under the IRPA .

This position, as I have discussed earlier, finds no explicit support in the text of the IRPA or the EA and is inconsistent with the apparent intention of Parliament. Moreover, this “binding effect” argument is not well supported by international law principles. [ 50 ] Under the Refugee Convention, refugee status depends on the circumstances at the time the inquiry is made; it is not dependent on formal findings. As one author puts it, “it is one’s de facto circumstances, not the official validation of those circumstances, that gives rise to Convention refugee status”: James C.

Hathaway, The Rights of Refugees Under International Law (2005), at pp. 158 and 278. It follows that the rights flowing from the individual’s situation as a refugee are temporal in the sense that they exist while the risk exists but end when the risk has ended. Thus, like other obligations under the Refugee Convention, the duty of non-refoulement is “entirely a function of the existence of a risk of being persecuted [and] it does not compel a state to allow a refugee to remain in its territory if and when that risk has ended”: Hathaway, at p. 302; R. (Yogathas) v.

Secretary of State for the Home Department , [2002] UKHL 36, [2003] 1 A.C. 920 , per Lord Scott of Foscote, at para. 106. The relevant time for assessment of risk is at the time of proposed removal: Hathaway, at p. 920; Wouters, at p. 99. This temporal understanding of refugee status under the Refugee Convention does not support the “binding effect” approach to earlier formal findings of refugee status. [ 51 ] In addition, to the extent that this “binding effect” argument is based on the need for a particular procedural approach, that position is not supported by Canada’s obligations under the Refugee Convention.

The Refugee Convention does not contain specific procedural provisions. While it does provide that refugees shall have free access to the courts (Article 16) and due process in relation to expulsion decisions (Article 32), it does not bind the contracting states to any particular process for either granting or withdrawing refugee status.

Thus, Canada’s international undertaking with respect to non-refoulement does not commit it to any particular procedural scheme for its application in extradition matters. [ 52 ] Moreover, looking beyond the terms of the Refugee Convention, I have not found any international law norm to the effect that extradition may only be ordered if a previous finding that a person is a refugee has been formally set aside. So far as I have been able to determine, state practices on this point vary considerably.

Kapferer notes that, in some countries, recognition of refugee status by the asylum (refugee) authorities is binding on those dealing with extradition requests. She also notes, however, that this is not the case in other states (paras. 273-77): see also M. Cherif Bassiouni, International Extradition: United States Law and Practice (5th ed. 2007), at p. 193; E. P. Aughterson, Extradition: Australian Law and Procedure (1995), at pp. 35-36.

Similarly, the United Nations High Commissioner for Refugees in Guidance Note on Extradition and International Refugee Protection , at para. 53 acknowledges that in some countries, the extradition authorities are not bound by a previous formal conferral of refugee status by the immigration or asylum authorities . It seems that this is not problematic from an international law point of view, provided that the extradition authorities give due weight to the obligation of non-refoulement by fairly examining the question of whether the risk of persecution persists.

I conclude that Canada’s obligations under the Refugee Convention do not require an earlier formal determination of refugee status to be binding on the extradition authorities. (I should add that in this case Canada is both the state that formally accorded refugee protection to the appellants and the requested state in the extradition process. It is not necessary, therefore, to address the situation in which extradition is requested from Canada of a person whose refugee status was formally accorded by another state.) [ 53 ] For these reasons, I reject the appellants’ silence argument.

(3) The “Fair Process” Argument

[ 54 ] The interveners, Québec Immigration Lawyers Association and Canadian Council for Refugees, in different ways, make the point that the powers of the Minister of Justice to surrender a person sought under the EA do not adequately give effect to Canada’s obligations under the Refugee Convention. They submit, in effect, that the protections under the IRPA are different and better than those found in the EA . However, these submissions are based on the wrong comparison.

The protections in the IRPA in relation to non-refoulement do not apply to extradition; the question, therefore, is not whether the EA provides the same protection as the IRPA would if it did apply, but how the Minister’s surrender powers under the EA should be interpreted and applied having regard to its provisions read in light of Canada’s international undertakings and the Charter . I will take up that issue in the next

section of my analysis.

(4) Summary of Conclusions [ 55 ] In my view, the IRPA does not constrain the authority of the Minister to extradite a person with refugee status. I conclude that the Minister has that authority under the EA . That brings us to the question of whether the Minister exercised his authority reasonably in this case. C. Did the Minister Reasonably Exercise His Authority to Surrender the Appellants?

(1) Introduction [ 56 ] Section 44(1) (

a) and (

b) of the EA set out the grounds on which the Minister must refuse to surrender a person sought. In brief, they are first, if the Minister is satisfied that surrender would be unjust or oppressive in all of the relevant circumstances; second, if the Minister is satisfied that the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, etc.; and third, if the Minister is satisfied that person’s position may be prejudiced for any of those reasons. [ 57 ] In this case, the Minister focussed exclusively on the first ground.

He required the appellants to establish, on the balance of probabilities, that they would face persecution on their return to Hungary and that the persecution they face would shock the conscience or be fundamentally unacceptable to Canadian society. [ 58 ] In my view, the Minister applied incorrect legal principles and acted unreasonably in reaching his conclusions. His decision in this case related to the surrender for extradition of refugees to the country they fled.

The Minister’s approach to the exercise of his powers, in my respectful view, failed to give sufficient weight or scope to Canada’s non-refoulement obligations in light of which those powers must be interpreted and applied. While the mandatory grounds for refusal set out in s. 44 must be considered as a whole, the most relevant provision in this case is the second branch of s. 44(1) (

b) set out in the closing words of that subsection. This provision was included in the EA in part to give effect to Canada’s non-refoulement obligations under the Refugee Convention in the extradition context. While the Minister considered the appellants’ status as refugees and examined current conditions in Hungary, his approach in practical terms gave their refugee status no weight and took too narrow a view of Canada’s non-refoulement obligations.

The Minister in my respectful view applied incorrect legal principles by imposing too high a threshold for determining whether the appellants would face persecution on their return and, by placing the burden of proof on this issue on the appellants notwithstanding the earlier finding that they were refugees. My reasons for these conclusions follow.

(2) Grounds for Refusal of Extradition [ 59 ] In my view, this case turns on the

interpretation and application of s. 44 of the EA . For the purposes of this appeal, there are three key interpretative issues about s. 44 which must be resolved:

(1) What is the most pertinent ground under s. 44 where, as here, the Minister is deciding whether to surrender a person with refugee status? This turns on whether the protection afforded by s. 44(1) (

b) is available only in relation to the risk of prejudice resulting from the prosecution or punishment of the person sought or whether it applies to prejudice resulting from discrimination generally;

(2) Does a person with refugee status in Canada meet the threshold for invoking this protection? and

(3) Who bears the onus of proof that the risk exists? To address these issues, I will first place s. 44 in the context of the extradition process and explain how it interacts with the refugee determination process. I will then turn to a detailed discussion of the purpose of s. 44 and conclude with my analysis of these three interpretative issues. (

a) Section 44 in Context [ 60 ] Extradition is mainly an executive branch function stemming from international agreements between states: United States of America v. Kwok , 2001 SCC 18 , [2001] 1 S.C.R. 532, at para. 27 . The EA ’s main purpose is to provide the means which give effect to Canada’s obligations in this regard. Under the EA , the Minister of Justice is responsible for the implementation of extradition agreements, dealing with extradition requests and generally for the administration of the EA : s. 7 . [ 61 ] Charron J. recently outlined the scheme of the act in Canada (Justice) v.

Fischbacher , 2009 SCC 46 , [2009] 3 S.C.R. 170. I will not repeat it in detail here other than to briefly outline the three phases of the extradition process under the EA . [ 62 ] In the first phase, the Minister considers an extradition request and decides whether to proceed with it. If he decides in favour of proceeding, he issues an authority to proceed.

Where, as here, extradition to face trial is sought, the EA simply requires the Minister to be satisfied that the conduct described in the extradition request is criminal in the foreign jurisdiction and that the associated penalty meets the threshold established by s. 3(1) ( a ) (of at least two years or as specified in the relevant treaty).

There is no reference to the immigration status of the person in relation to the Minister’s discretion to issue the authority to proceed. [ 63 ] The authority to proceed authorizes the Attorney General, acting on behalf of the extradition partner, to initiate extradition proceedings to seek the order of a superior court judge for the committal of the person sought. The process thus moves into its judicial phase.

The function of an extradition hearing is to determine whether the domestic component of double criminality is met (i.e., if the conduct had occurred in Canada, it would have been an offence with the requisite punishment) as required by s. 3(1) (

b) of the EA . The judge is required to order committal of a person sought for prosecution if there is evidence admissible under the Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the

judge is satisfied that the person is the person sought by the extradition partner: s. 29(1)(a). Nothing in the EA specifies that the role ofthe extradition judge is affected by the fact that the person sought is a refugee. [64] Following committal, the matter reverts to the Minister for the third phase of the process. It is at this point which heexercises his power under s. 40 of the EA to surrender, or to refuse surrender, the person sought to the extradition partner. This is thephase which is in issue in this case.

At the surrender stage, the extradition process is essentially political in nature; the Minister musttake into account the requirements of good faith and honour of Canada in responding to the request under an extradition treaty and mustweigh the political and international relations ramifications of the decision whether or not to surrender. [65] In general, the power to surrender is discretionary; as s. 40(1) provides, the Minister “may . . . order that the personbe surrendered to the extradition partner”.

However, this discretion to order or to refuse surrender is structured and, in somecircumstances, constrained by the other provisions of the statute, the applicable treaty and the Charter. The statute sets out discretionarygrounds on which the Minister may refuse surrender in s. 47. It also sets out mandatory and qualified mandatory grounds of refusal in ss.44 and

Section 44, as noted, is most relevant to this appeal and I will return to it in a moment. [66] The refugee determination process is not expressly mentioned in the EA, other than in s. 40(2). It provides that,before ordering the surrender of “a person who has made a claim for refugee protection”, the Minister of Justice must consult with theMinister responsible for the IRPA: s. 40(2). Note that the provision refers to those who have claimed refugee protection; it does not referto those who, like the appellants, have been granted refugee protection.

It follows that, in the case of a person with refugee status, s.40(2) does not require the Minister to consult with the MCI. However, it has been held that the provision does not preclude the Ministerfrom doing so: see Hungary (Republic) v. Horvath, 2007 ONCA 734, 65 Imm. L.R. (3d) 169, at paras. 16-18, leave to appeal refused,[2008] 1 S.C.R. ix. Moreover, the Minister took the position in oral submissions before us that such consultation is required by virtue ofs. 7 of the Charter when he considers the surrender of a refugee.

I agree that such consultation must occur when the surrender decisionconcerns a person with refugee status. [67] Although there are no other express references to refugees in the EA, it does provide for protections of persons whofear abusive treatment, persecution or torture in the requesting state. The most relevant provision in this regard is s. 44 which sets outmandatory reasons for refusal of surrender. I turn now to a detailed examination of this key provision. (

b) Section 44 — General Considerations [68] Under s. 44(1) of the EA, the Minister must refuse to make a surrender order if “satisfied” that (

a) the surrenderwould be unjust or oppressive having regard to all the relevant circumstances; or (

b) the request for extradition is made for the purposeof prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex,sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons. Section 44(1) reads: 44.

(1) The Minister shall refuse to make a surrender order if the Minister is satisfied that (

a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or (

b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race,religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or statusor that the person’s position may be prejudiced for any of those reasons. [69] These mandatory reasons for refusal of surrender prevail over provisions of an extradition treaty. This is apparentfor two reasons. The use of the

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