2012 QCCA 1145, 2012 QCCA 1145

Qualls c. Canada (Minister of Justice) 2012 QCCA 1145 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004796-106 MINUTES OF THE HEARING DATE: June 14, 2012 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. NICHOLAS KASIRER, J.A. RICHARD WAGNER, J.A. PETITIONER ATTORNEY THOMAS QUALLS Mtre Olivier Roy Girouard Pappas Lamarche Roy RESPONDENT ATTORNEY MINISTER OF JUSTICE OF CANADA on behalf of THE UNITED STATES OF AMERICA. Mtre Constantina Antonopoulos Public Prosecution Service of Canada Attorney On judicial review from a decision of the Minister of Justice of Canada, Rob Nicholson, rendered on October 15, 2010.

NATURE OF THE APPEAL : Extradition Clerk: Marcelle Desmarais Courtroom: Antonio-Lamer HEARING 9 h 51 Submission by Mtre Olivier Roy. 10 h 17 Submission by Mtre Constantina Antonopoulos. 10 h 27 Reply by Mtre Olivier Roy. 10 h 28 End of arguments 10 h 28 Suspension. 10 h 31 Resumption. BY THE COURT: Judgment – see page 3. Marcelle Desmarais Clerk BY THE COURT JUDGMENT [ 1 ] On October 15, 2012, the Minister of Justice for Canada ordered the surrender of Thomas Qualls for extradition to the United States of America pursuant to powers enjoyed by him under the Extradition Act . [1] Mr. Qualls has asked for judicial review of that order, alleging that the Minister erred in his

interpretation of the Act and the relevant extradition treaty made between the United States and Canada. The sole ground for review advanced by Mr. Qualls before this Court is an alleged error made by the United States of America, as the requesting state, when it petitioned the Canadian authorities for assistance in this matter. Specifically, the United States requested the extradition of Mr. Qualls by diplomatic note addressed to the Department of Foreign Affairs of Canada, but sent supporting documentation directly to the Minister of Justice of Canada. Mr. Qualls contends that this manner of proceeding violated

Article 9 of the Treaty which requires that a request for extradition be made through the diplomatic channel. Mr. Qualls says that as a result of this error, the Minister of Justice had no jurisdiction to order his surrender. *** [ 2 ] It would be useful to provide a brief

summary of the proceedings to date.

[ 3 ] On November 5, 2008, the United States District Court for the Eastern District of New York found Mr. Qualls guilty of charges of conspiracy to commit mail fraud and wire fraud, as well as mail fraud, multiple counts of wire fraud and two counts of obstruction of justice. He is awaiting the imposition of sentence for those convictions. [ 4 ] Mr. Qualls had been free on bail during his trial. He did not attend, however, the last days of those proceedings. He was subsequently charged with failure to appear, for which he has not undergone trial. [ 5 ] On November 1, 2008, Mr.

Qualls made his way to Canada and some six months later he filed a claim for convention refugee status vis-à-vis the United States. [ 6 ] He was arrested in Canada on October 8, 2009 at the request of the United States government pursuant to a provisional arrest warrant under

section 12 of the Act. On December 23, 2009, an Authority to Proceed was issued pursuant to

section 15 of the Act authorizing extradition proceedings against Mr. Qualls. The issuance of the Authority to Proceed suspended Mr. Qualls’ refugee protection proceedings pursuant to

section 105 of the Immigration and Refugee Protection Act . [2] [ 7 ] After an extradition hearing, Madam Justice Sophie Bourque, sitting as an extradition judge in the Quebec Superior Court, rendered judgment on May 20, 2010 in which she decided that there was sufficient evidence on which to commit Mr. Qualls of the offences set out in the Authority to Proceed. Mr. Qualls was committed to custody to await the Minister of Justice’s decision on surrender. The judgment of the Superior Court was not appealed. [ 8 ] On June 14, 2010, Mr. Qualls made submissions to the Minister through counsel.

In those submissions, he argued that surrender should be denied on the basis that surrender would be unjust or oppressive within the meaning of paragraph 44(1)(

a) of the Act or, in the alternative, that surrender should only be ordered if made subject to the assurance that he would receive a new trial. Specifically, Mr. Qualls contended that he would face a risk of persecution should he be surrendered to the United States and that his trial in the United States had been unfair. [ 9 ] By letter dated October 15, 2010, the Minister wrote to Mr. Qualls’ counsel to say that he had considered Mr.

Qualls’ submissions but decided to order his unconditional surrender to the United States. *** [ 10 ] In his petition to this Court for judicial review of the Minister’s October 15, 2010 decision, Mr. Qualls initially alleged that the Minister had wrongly concluded that he would not be persecuted in the United States and that his trial had not been unfair. He also argued that the Minister had erred in his

interpretation of the law applicable to persons asking for refugee status which, in turn, led to a jurisdictional error. He reserved the right, in written argument, to allege new grounds for judicial review. [ 11 ] In his factum, Mr. Quall abandoned all arguments previously made in support of his application for judicial review. Instead, he submitted a new argument that the Minister had not considered in his letter supporting the order of surrender for extradition. Before this Court, he argued that the Minister violated the Act in ordering Mr.

Qualls’ surrender given that the requesting state did not make its petition in conformity with the applicable extradition treaty. In his view, the United States had failed to respect

Article 9 of the Treaty on Extradition between the Government of Canada and the Government of the United States of America [3] by submitting certain supporting documents for the extradition request to the Minister of Justice, rather than to the Department of External Affairs, and by doing so by a means of communication other than through the diplomatic channel. According to Mr. Qualls, this amounted to much more than a mere technical irregularity. As a breach of treaty requirements, it precluded the Minister of Justice from ordering his surrender.

He asks this Court to annul the Minister’s decision ordering extradition. *** [ 12 ] For the reasons that follow, the application for judicial review should be dismissed. [ 13 ] Firstly, it bears recalling that deference is owed to the Minister’s decision whether to order surrender of a fugitive who has been committed for extradition. Among the functions of the Minister under the authority of s. 7 of the Act is the responsibility for the implementation of extradition treaties. Contrary to Mr.

Qualls’ submission, reasonableness is recognized as the appropriate standard of review for the Minister’s decision. [4] [ 14 ] In this case, the error that the Minister is alleged to have committed in his

interpretation of

Article 9 of the Treaty was not addressed by the Minister either in the formal order to surrender or in the Minister’s letter of October 15, 2010 providing a reasoned answer to Mr. Qualls’ submissions. This is in part because Mr. Qualls’ did not raise what he later considered to be the mistake regarding

Article 9 until his pleadings before this Court. [ 15 ] Implicitly, however, the Minister plainly decided that the manner in which the United States made its request for extradition did not preclude him from ordering the surrender of Mr. Qualls for extradition.

It may therefore be understood that the Minister considered that the Treaty requirement had been met because he acceded to the request and ordered surrender under the Act. [ 16 ] In Alberta Teachers’ Association , [5] Justice Rothstein of the Supreme Court addressed the issue as to how an implicit decision can be tested on judicial review according to the norm of reasonableness. He recognized that where the decision-maker’s reasons were not explicit, the reviewing court cannot refer to the process of articulating reasons in the ordinary way.

He explained, however, the following means of analysis: [53] […] the direction that a reviewing court should give respectful attention to the reasons “which could be offered in support of a decision” is apposite when the decision concerns an issue that was not raised before the decision maker. In such circumstances, it may well be that the administrative decision maker did not provide reasons because the issue was not raised and it was not viewed as contentious. If there exists a reasonable basis upon which the decision maker could have decided as it did, the court must not interfere.

[Emphasis added.] *** [ 17 ] The question before this Court is thus whether there was a reasonable basis for the Minister's implicit decision that the request for extradition made by the United States was valid under

Article 9 of the Treaty, even if certain of the supporting documents were not sent through the diplomatic channel. [ 18 ] It is plain that there was. [ 19 ] Subsection 3(1) of the Act provides that extradition from Canada must proceed “in accordance with this Act and a relevant extradition agreement”. [6]

Article 9 of the Treaty sets forth the manner in which requests for extradition are made by the requesting state: 9.

(1) La demande d'extradition doit se faire par la voie diplomatique.

(2) La demande doit être accompagnée du signalement de l'individu recherché, d’un énoncé des faits, du texte des dispositions des lois de l'État requérant décrivant l'infraction et stipulant la peine à infliger à cet égard ainsi que d'un énoncé de la loi relative à la prescription en matière de procédures judiciaires. 9.

(1) The request for extradition shall be made through the diplomatic channel.

(2) The request shall be accompanied by a description of the person sought, a statement of the facts of the case, the text of the laws of the requesting State describing the offense and prescribing the punishment for the offense, and a statement of the law relating to the limitation of the legal proceedings. [ Emphasis added. ] [ 20 ] The diplomatic note sent by the Embassy of the United States to the Department of Foreign Affairs on December 2, 2009 was done, in accordance with

Article 9, “through the diplomatic channel / par voie diplomatique ”. That note did not contain full details of the relevant facts and legislation to the case, but did contain the following express mention: “Documents in support of the request for extradition, including a photograph of the fugitive, were forwarded directly to the Canadian Department of Justice”. A Record of the Case and a Supplementary Record of the Case, dated November 23, 2009 and January 14, 2010 respectively, were forwarded by American authorities to the Minister of Justice. [ 21 ] Mr.

Qualls does not allege that the proper documents were not sent to the Canadian authorities but merely that the mode of transmission of the accompanying documents, referred to in Article 9(2) of the Treaty, was mistaken. He says that the Embassy should have sent those documents to the Department of Foreign Affairs through the diplomatic channel and not to the Minister of Justice by some other means. [ 22 ] Mr. Qualls position rests on a narrow and formalistic

interpretation of the Treaty that does a disservice to the manner in which a reading of such instruments should be undertaken. As La Forest J. wrote in Schmidt , “[t]he present system of extradition works because courts give the treaties a fair and liberal

interpretation with a view to fulfilling Canada’s obligations, reducing the technicalities of criminal law to a minimum and trusting the courts in the foreign country to give the fugitive a fair trial [...]”. [7] In this case, the request was sent by diplomatic note, meeting the letter of Article 9(1) of the Treaty. Mr. Qualls argues that Article 9(2) requires the accompanying documents necessarily be physically attached to the request and sent through the diplomatic channel, such that extradition is impossible if the documents accompanying the request were sent by another means. This is an unfair and illiberal

interpretation of

Article 9 given Canada’s international treaty obligations to its extradition partner, the United States of America. [ 23 ] Courts have been confronted with this problem in the past. In DesFossés , [8] as in the present case, a request for extradition was sent to the Department of Foreign Affairs through the diplomatic channel but the supporting documents were sent directly to the Minister of Justice. The Federal Court held that supporting documents were properly sent, noting that Article 9(2) does not require that accompanying documents need be sent by diplomatic note.

Similarly, in Sagarra , [9] the Court of Appeal for Newfoundland and Labrador held that this method did not impugn an order to surrender subsequently issued by the Minister: [32] I am essentially in agreement with the positions outlined on behalf of the Minister.

It is too formalistic, too devoid of substance to be argued credibly that because the request for extradition was contained in a diplomatic note to the Department of Foreign Affairs and International Trade, while the necessary supporting documents came under separate cover to the Department of Justice that that constituted a failure to comply with the legal requirements set out in the Act and the Treaty. Mr. Sagarra's position rests on this basis; it cannot succeed. [ 24 ] The same reasoning applies here. The Minister’s decision to order the surrender of Mr.

Qualls, which reflected an implicit conclusion that the American authorities had satisfied the formal requirements in

Article 9 of the Treaty bearing on the request for extradition, was a reasonable one. It should not be disturbed on review. *** [ 25 ] The Minister pleaded that even if one were to view the request for extradition as irregular, that irregularity was a mere defect of form. Thus, even if the Treaty was not followed to the letter, the defect could not be the basis of a successful application for judicial review, given subsection 57(8) of the Act:

(8) Elle [la cour d'appel] peut rejeter toute demande fondée uniquement sur un vice de forme si elle estime qu’en l’occurrence le vice n’entraîne aucun tort grave ni déni de justice et, le cas échéant, valider la décision entachée de vice et lui donner effet selon les modalités qu’elle estime indiquées. 57.

(8) If the sole ground for relief established in an application for judicial review is a defect in form or a technical irregularity, the court of appeal may • (

a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; or • (

b) in the case of a defect in form or a technical irregularity in the decision, make an order validating the order, to have effect from the time and on the terms that it considers appropriate. [ 26 ] It should be said that the petitioner has not shown any prejudice or injustice caused to him by the choice of the United States Embassy to communicate certain documents to the Minister as it did.

Furthermore, the petitioner acknowledged that even if he succeeded in this appeal, nothing would preclude the requesting state from presenting a new request for extradition, accompanied by the appropriate supporting materials, by the diplomatic channel. [ 27 ] The better view is that even if the strict terms of the Treaty were not respected here, this was a technical irregularity of no consequence. [ 28 ] In such circumstances, the Newfoundland appellate court held in Sagarra that if the means of communication chosen by the requesting state were viewed as irregular, that irregularity would be cured by subsection 57(8) of the Act: [33] To the extent an issue remains relating to whether the supporting documents provided to the Department of Justice should have been forwarded with the diplomatic note, I would note s. 57(8) of the Extradition Act , which reads: […] If the supporting documents should have been forwarded with the diplomatic note (rather than being forwarded separately), it seems to me that this would be a "technical irregularity" and that "no substantial wrong or miscarriage of justice has occurred" thereby. [10] [ 29 ] Insofar as recourse to subsection 57(8) of the Act is understood to be necessary, this reasoning in Sagarra on this point applies to the present case.

FOR THESE REASONS , the Court: [ 30 ] DISMISSES the application for judicial review of the order to surrender. ALLAN R. HILTON, J.A. NICHOLAS KASIRER, J.A. RICHARD WAGNER, J.A.