M.M. Appellant v. Minister of Justice Canada on behalf of the United States of America, 2015 SCC 62

SUPREME COURT OF CANADA Citation: M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973 Date: 20151211 Docket: 35838 Between: M.M. Appellant and Minister of Justice Canada on behalf of the United States of America Respondent - and - Criminal Lawyers’ Association (Ontario) and British Columbia Civil Liberties Association Interveners Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner and Côté JJ.

Reasons for Judgment: (paras. 1 to 172) Dissenting Reasons: (paras. 173 to 282) Cromwell J. (McLachlin C.J. and Moldaver and Wagner JJ. concurring) Abella J. (Karakatsanis and Côté JJ. concurring) M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973 M.M. Appellant v. Minister of Justice Canada on behalf of the United States of America Respondent and

Criminal Lawyers’ Association (Ontario) and British Columbia Civil Liberties Association Interveners Indexed as: M.M. v. United States of America 2015 SCC 62 File No.: 35838. 2015: March 17; 2015: December 11.

Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner and Côté JJ. on appeal from the court of appeal for quebec Extradition — Committal hearings — Evidence — Role of extradition judge — Test for committal — Principle of double criminality — Mother of three children facing child abduction charges in U.S. — Whether extradition judge applied correct principles in relation to double criminality and to own role in assessing reliability and sufficiency of evidence — Whether extradition judge should consider evidence about possible defences and other exculpating circumstances in deciding whether to commit for extradition — Whether evidence justified mother’s committal — Extradition Act, S.C. 1999, c. 18, ss. 3(1) , 29(1) (a).

Extradition — Surrender order — Judicial review — Extradition Act providing that Minister of Justice shall refuse to order surrender if unjust or oppressive having regard to all relevant circumstances — Minister ordering mother’s surrender for extradition to U.S. to face child abduction charges — Whether Minister gave appropriate consideration to defence of necessity available under Canadian law but not available under law of requesting state — Whether Minister gave appropriate consideration to effect of extradition on best interests of children — Whether Minister’s decision to surrender was reasonable — Extradition Act, S.C. 1999, c. 18, s. 44(1) (a).

M is the mother of three children. The family was living in Georgia when the parents divorced. The Georgia courts awarded the father sole custody of the children. M was given no visitation rights and was permitted no further contact with the children. However, when the father reported the children missing in 2010, Georgia police located M with her children in a battered women’s shelter in Quebec and arrested her. After being placed in foster care, the children were returned to M’s care following her release on bail.

The U.S. sought M’s extradition to face prosecution in Georgia for the offence of interstate interference with custody. The Minister of Justice issued an Authority to Proceed (“ATP”) with extradition, listing the corresponding Canadian offences of abduction in the Criminal Code . The Quebec Superior Court dismissed the U.S.’s application for M’s committal for extradition. The Court of Appeal for Quebec, however, set aside M’s discharge and ordered her committal for extradition (the “committal order”).

The Minister of Justice ordered M’s surrender for extradition, and the Court of Appeal dismissed her application for judicial review of the Minister’s decision (the “surrender order”). M appeals both the committal and the surrender orders. Held (Abella, Karakatsanis and Côté JJ. dissenting): The appeal should be dismissed in relation to both the committal order and the surrender order.

Per McLachlin C.J. and Cromwell, Moldaver, and Wagner JJ.: With respect to the committal order, the extradition judge applied incorrect principles in relation to the double criminality requirement and her role in assessing the reliability of the evidence before her. The extradition judge erred in law in weighing and relying on evidence of defences and other exculpatory circumstances, in finding that the requesting state’s evidence did not justify committal, and in relation to her analysis of the Canadian offences.

With respect to the surrender order, potential defences and the best interests of children are relevant to the Minister of Justice’s decision making. In this case, the Minister appropriately considered the children’s best interests and raised on his own motion the question of Georgia law in relation to M’s possible defence of qualified necessity. As such, the Minister’s decision to send M to Georgia for trial was reasonable.

The extradition process serves two important objectives: the prompt compliance with Canada’s international obligations to its extradition partners, and the protection of the rights of the person sought. This requires a careful balancing of the broader purposes of extradition with those individual rights and interests. Extradition is a three-phase process (ATP, committal and surrender) and, at each stage, concern to balance these interests is apparent. Also underlying all three phases is the broad principle of double criminality expressed in s. 3(1) (

b) of the Extradition Act , that is, the principle that Canada should not extradite a person to face punishment in another country for conduct that would not be criminal in Canada. The committal phase of the extradition process serves an important, but circumscribed and limited screening function. The extradition judge is to determine whether there is evidence of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the ATP; if not, the person must be discharged: s. 29(1) (

a) and (3) of the Extradition Act . This incorporates the test that a justice conducting a preliminary inquiry must apply under Canadian law when deciding whether to commit an accused for trial. The extradition judge’s role is to determine whether there is a prima facie case of a Canadian crime, not to become embroiled in questions about possible defences or the likelihood of conviction. Committal hearings are not trials; they are intended to be expeditious procedures to determine whether a trial should be held.

The extradition judge’s role, like that of the preliminary inquiry justice, is not concerned with defences or other matters on which the accused bears an evidential or persuasive burden. While the role of the extradition judge at the committal phase has evolved as a result of legislative amendments and the requirements of the Charter , the basic principles governing extradition have remained the same. There is nothing in the jurisprudence suggesting any change in the extradition judge’s statutorily defined role.

Moreover, the jurisprudence did not and could not change by judicial decree the statutory requirement that the requesting state has only to show that the record would justify committal for trial in Canada. Overall, the correct approach is a restrained view of the role of the extradition judge in assessing the reliability of evidence.

The extradition judge’s starting point is that the requesting state’s certified evidence is presumptively reliable. This presumption may only be rebutted by showing fundamental inadequacies or frailties in the material relied on by the requesting state. It is only where the evidence supporting committal is so defective or appears so unreliable that it would be dangerous or unsafe to act on it that the extradition judge is justified in refusing committal on this basis.

In order to admit evidence from the person sought for this purpose, the judge must be persuaded that the proposed evidence, considered in light of the entire record, could support such a conclusion. In this case, the extradition judge erred in concluding that the requesting state’s evidence in the certified record of the case (“ROC”) was insufficient to require committal. She gave no weight to the presumption of reliability of the ROC. The ROC supported committal here.

The circumstantial evidence and the reasonable inferences that could be drawn from it were sufficient to conclude that a reasonable jury properly instructed could return a verdict of guilt. The ROC permitted reasonable inferences that M had taken the children from the parent who had lawful care of them, and was sufficient to support a reasonable inference that M had abducted the children in violation of a custody order with the intent to deprive the father of their possession.

The extradition judge also erred in law in relation to the requirements for a prima facie case and in relation to her analysis of the Canadian offences. With respect to s. 280(1) of the Criminal Code (abduction of a person under 16), her conclusions that the children left of their own volition, that they were not taken out of the father’s possession by M, that “all of the evidence” indicates that the three children ran away from their father’s residence and that their elder sister drove them to Canada are wrong in law and in fact.

With respect to the law, depriving parents of the “possession” of their children is not limited to circumstances in which the parents were in physical control of the children. The essence of the offence is interference with the parent’s exercise of his or her right of control over the child. The prosecution would not have to establish that M physically took the children. As well, the extradition judge failed to recognize that there was conflicting evidence concerning how the children came to be with M in Canada.

The record before the extradition judge could not reasonably be thought to meet the threshold of showing either that the evidence in the ROC was so unreliable that it should be discarded or that the inferences relied upon by the requesting state were unreasonable. With respect to the qualified defence of necessity under s. 285 of the Criminal Code , again the extradition judge erred both in law and in fact. With respect to the law, it was not part of the extradition judge’s role to consider whether there might be valid defences to the Canadian offences.

As for the facts, the extradition judge did not consider that s. 285 requires that there be danger of imminent harm either to the children or to M herself. There was evidence of neither. At the surrender stage of the proceedings, the Minister of Justice must not surrender a person for extradition if this would be “unjust or oppressive”, pursuant to s. 44(1) (

a) of the Extradition Act . The basic concern which underlies the broader principle of double criminality, which operates at the ATP and committal phases of the extradition process, may also inform the Minister’s surrender decision. The Minister engages in a weighing exercise of all the relevant circumstances. This is a vitally important role because it provides an additional safeguard of the rights of the person sought and addresses matters that may not be properly considered at the two earlier stages of the extradition process.

The Minister has a role to play at the surrender stage in assessing the potential consequences for the person sought of being subjected to the law of the requesting state. Where surrender would be contrary to the principles of fundamental justice, it will also be unjust and oppressive. In exercising this power to surrender, the Minister must consider, when relevant, the best interests of children who are or may be affected by the extradition and whether there is a significant difference in jeopardy between domestic and foreign law.

With respect to this latter consideration, the rationale of the broad principle of double criminality may inform the Minister’s exercise of this authority to refuse surrender if there are defences available in Canada that are not available in the requesting state. Thus, the availability of possible defences that fall outside of the scope of the double criminality inquiry required at the first two phases of the extradition process can nonetheless be relevant at the third.

It follows from this that the Minister should consider, when relevant, how the person sought would be affected by the unavailability of a comparable defence in the requesting state. However, it does not follow that every difference in the availability of defences or in jeopardy makes extradition unjust or oppressive or contrary to the principles of fundamental justice. There is generally speaking nothing unjust in surrendering a person to face the legal consequences of their acts in the place where they were committed.

Differences in legal systems — even substantial differences — should not, generally speaking, constitute grounds for refusing surrender.

Before the unavailability of a defence could engage the threshold for refusal, the person sought must show: (1) that there is, in fact, a difference of substance in the respective laws of the requested and requesting state so that the defence is available in Canada but no comparable defence is available in the requesting state; (2) that there is a reasonable prospect of success were the defence to be raised if he or she were tried for the same conduct in Canada; and (3) that the difference between the laws of the two countries must lead to a significantly greater jeopardy for the person sought in the requesting state.

If these three elements are present, then the Minister is required to weigh the potential difference in defences along with all the other relevant considerations in making his or her surrender decision. The onus of persuasion remains on the person sought. The Minister’s ultimate conclusion will be treated with deference on judicial review. In this case, the Minister’s decision was not unreasonable because M did not meet any of the three threshold requirements. First, M did not show that there is any difference in substance between the law in Canada and in Georgia.

Given the fact that the U.S. authorities advised the Minister that M could rely on a defence of coercion at her trial in Georgia, there is no reason to assume that there is a significant substantive difference between coercion and necessity. The record contains nothing to support the assertion that there is no defence in Georgia comparable to the statutory necessity defence. Second, the material in the record does not show a reasonable prospect of success on the Canadian qualified defence of necessity if M were tried for the alleged conduct in Canada. This defence is available only if there was “imminent harm”.

The material before the Minister did not provide any basis to think that the imminent harm requirement was present here. Furthermore, M’s position on the facts changed dramatically in her submissions to the Minister, such that these contentions could not reasonably be thought to be entitled to much weight. Third, M failed to show that she faced significantly greater jeopardy in Georgia than in Canada.

On the issue of the best interests of the children, the Minister, in making a surrender decision, can consider personal circumstances, including the hardship extradition will create for families, and it is necessary to do so where the material puts these considerations in play. This obligation extends to considering the best interests of children who will or may be affected by extradition

when the material on record shows that this is a relevant concern. However, the best interests of children on surrender for extradition must be considered in light of other important legal principles and the facts of the individual case. The legal principle of the best interests of the child may be subordinated to other concerns in appropriate contexts; its application is inevitably highly contextual; and society does not always deem it essential that the best interests of the child trump all other concerns.

For example, the consequences of a parent having to face criminal charges elsewhere cannot in themselves be unjust or oppressive. In this case, the Minister was required to consider the best interests of the children in making his surrender decision. The Minister’s key conclusions were that the best interests of the children were unclear, that the impact of extradition on the children was also unclear and that there were important considerations favouring surrender for extradition. These key conclusions were reasonable and they led to a reasonable decision to surrender M.

On any reasonable view of the record, what would be best for these children was anything but clear given their unhappy, unstable and complicated family history and the apparent problems of both parents.

With respect to the impact of M’s extradition on the children, there was nothing before the Minister and nothing in the record before this Court providing any further information about the children’s welfare or M’s parenting abilities after the children were returned to her care, nothing that suggested to the Minister that the children would be returned to their father’s care if their mother were surrendered, nothing in the material about whether M would be incarcerated pending her trial in Georgia or what impact her pending criminal charges could have on her relationship with the children, and no evidence about other possible family placements either in Canada or in the United States.

Per Abella, Karakatsanis and Côté JJ. (dissenting): No one can be extradited unless his or her conduct would have constituted an offence that is punishable in Canada. This is known as the principle of double criminality, a cornerstone of the extradition process in Canada. Its purpose is to ensure that no one is surrendered from Canada to face prosecution in another country for conduct that does not amount to a criminal offence in this country. Double criminality is based on ensuring that a person’s liberty is not restricted as a consequence of offences not recognized as criminal by the requested state.

In other words, where a person is extradited for conduct not amounting to a criminal offence in Canada, the principle of double criminality is offended. Given the context of extradition proceedings and the liberty interests involved, the threshold for committal for extradition is higher than the threshold that applies to preliminary inquiries in criminal proceedings. To justify committal in extradition proceedings, the evidence must be such that a reasonable, properly instructed jury could return a guilty verdict.

Section 285 of the Criminal Code states that no one will be found guilty of an offence under ss. 280 to 283 of the Criminal Code if the taking or harbouring of any young person was necessary to protect him or her from danger of imminent harm. The result of s. 285 is that an accused who would otherwise be guilty of an offence under ss. 280 to 283 , but whose conduct falls under the conditions specified in s. 285 , is not criminally liable for his or her actions. In the words of s. 3(1) (

b) of the Extradition Act , the conduct would not have constituted a punishable offence. Consideration of the s. 285 defence where a person is sought for extradition under ss. 280 to 283 is a necessary component of determining whether a punishable offence has occurred in Canada. Removing consideration of s. 285 from the scope of the extradition judge’s review would fail to give proper effect to the principle of double criminality.

If the double criminality requirement is to achieve its purpose of ensuring that a person is not surrendered to face prosecution for conduct that would not amount to a criminal offence in Canada, s. 285 must be taken into account when deciding whether a person’s conduct would constitute a crime if committed in this country and so justify committal. To preclude its consideration is to unduly narrow the role of the extradition judge in ensuring that double criminality is met, and in providing a meaningful process safeguarding the liberty interests of the person sought for extradition .

The defence that it was necessary to rescue the children to protect them from imminent harm is not available in the state of Georgia. The children were 9, 10 and 14 years old. The extradition judge found that the children were afraid of their father and that he had physically and mentally mistreated them. She also found that the children had run away from their father without any assistance or even the knowledge of their mother, that it was more than a week before they contacted her for help and that the mother’s actions in taking the children after they ran away were to protect them from further harm.

Based on a meaningful judicial assessment of the whole of the evidence, the extradition judge correctly determined that the evidence did not reveal conduct that would justify committal. Given the clear wording of s. 285, the mother could not be found guilty on the charge of abduction since her intent was to protect the children from danger of imminent harm at the hands of their father. No reasonable jury in Canada, properly instructed, could therefore return a verdict of guilty on the charge of abduction of the children against the mother in the circumstances.

Committal, as the extradition judge concluded, is therefore not justified. Section 44(1) (

a) of the Extradition Act requires the Minister of Justice to consider all the relevant circumstances in deciding whether surrender would be unjust or oppressive. Even if one were to accept that the requirements for double criminality have been met, this does not relieve the Minister of his responsibility to consider that a statutory defence that goes to the very heart of the offence is available in Canada and not in Georgia.

Such a consideration falls squarely within the Minister’s statutory safety valve function at the surrender stage and is therefore a necessary consideration when discretion is exercised under s. 44(1)( a ). So too are the best interests of the children. In her submissions to the Minister, the mother noted that the children fled from their abusive father and would face serious risks of harm if they were returned to him. The father left the children to take care of themselves most of the time and was physically and mentally abusive.

This abuse was the reason the children ran away from the home, leading them to live in an abandoned house for over a week before contacting the mother. If the children were forced back to the United States or separated from her, they would either suffer additional abuse or face the absence of any parental figure. It is contrary to the best interests of the children to extradite the mother. There is no dispute that the children should not be returned to their abusive father.

To surrender the mother for her conduct in protecting the children is to penalize them for reaching out to her by depriving them of the only parent who can look after them. Moreover, because the defence of rescuing children to protect them from imminent harm does not exist in Georgia, the mother will not be able to raise the defence she would have been able to raise had she been prosecuted in Canada. If extradited, the mother could face up to 15 years imprisonment if convicted of the interference with custody charges. Yet

the Minister makes no reference to the impact of the mother’s surrender on the family. Instead, he observed that the availability of fostercare adequately compensates for the mother’s potential imprisonment in Georgia. This represents an inexplicable rejection of thecornerstone of this country’s child welfare philosophy, namely, to attempt whenever reasonably possible to keep children and parentstogether. The Minister expressed uncertainty as to the children’s best interests.

This ought to have led him to err on the side of thechildren’s right to be with a loving parent, not on the side of surrendering the mother to face a criminal process where a key defencewould be unavailable. In light of all the instability and trauma the children have experienced, it is obvious that what would be least harmful forthem would be to remain in Canada with the mother who put herself in legal jeopardy to protect them, instead of being relegated to fostercare.

What the Minister considered instead was the mother’s conduct three years prior to the incident in question, which led to her losingcustody and access. This history should not be denied, but neither is it of any particular relevance in considering what she did inresponding to the children’s desperate request, or to what her current relationship was to the children. The question is not whether shewas an ideal parent, but whether her conduct in coming to her children’s rescue should deprive them of her care and deprive her of herliberty for up to 15 years.

The very charges the mother faces arose because she acted in what she saw as her children’s best interests. The evidencebefore the Minister unequivocally showed that the children fled from their father’s home because he was abusive and that theyeventually contacted their mother for assistance. She did not remove them from his home. In fact, the evidence accepted throughout theseproceedings is that the children ran away on their own without either the assistance or knowledge of the mother.

Between returning to theabusive household, remaining in an abandoned home or reuniting with their mother, the children felt they had no alternative. Rightly orwrongly, the children believed that taking such measures would be less harmful to their well-being than remaining in their father’sabusive household. They cannot be judged for taking desperate measures to escape intolerable conditions which placed them in harm’sway. The Minister was obliged to take into serious consideration why the children contacted their mother for assistance. They hadsuffered harm. They had no place to go.

Reaching out to their mother was the only realistic alternative for them. And responding to theirpleas for safety was the only realistic alternative for the mother. In penalizing the mother for coming to the assistance of her childreninstead of ignoring their entreaties, the Minister was penalizing her for accepting her responsibility to protect the children from harm. The Minister inadequately considered the children’s best interests, and his conclusions with respect to the availability of thes. 285 defence rendered his decision to order the mother’s surrender unreasonable.

Limiting his assessment of the mother’s trial inGeorgia to whether it would be procedurally fair instead of whether it would be unjust or oppressive to extradite her, sidesteps the properanalysis. Given the liberty interests at stake and the potential for criminal liability in circumstances that may not attract punishment inCanada, it is not enough to determine whether the trial in the requesting state will be procedurally fair.

The presence of a statutorydefence in Canada going directly to criminality where no analogous defence is recognized in the requesting state is, on its face, the verysort of factor that makes surrender unjust or oppressive. There is little demonstrable harm to the integrity of Canada’s extradition process in finding it to be unjust or oppressive toextradite the mother of young children she rescued, at their request, from their abusive father. The harm, on the other hand, of deprivingthe children of their mother in these circumstances is profound and demonstrably unfair. Cases Cited By Cromwell J.

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Canada (Ministre de la Justice), 2013 QCCA 554; United

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Taylor, 2005 BCCA 440, 216 B.C.A.C. 137; R. v. Anderson, 2014 SCC 41, [2014] 2S.C.R. 167; Provost v. Canada (Procureur général), 2015 QCCA 1172; Kunze v. Canada (Minister of Justice), 2005 BCCA 87, 209B.C.A.C. 32; Canada (Minister of Justice) v. Thomson, ; Savu v. Canada (Ministre de la Justice), 2013 QCCA 554;United States of America v. Lucero-Echegoyen, 2013 BCCA 149, 336 B.C.A.C. 188; Canada (Attorney General) v. Aziz, 2013 BCCA414, 342 B.C.A.C. 305; United States of America v. Doak, 2015 BCCA 145, 323 C.C.C. (3d) 219; Agraira v.

Canada (Public Safety andEmergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567;Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817; United States of America v.Cotroni, (SCC), [1989] 1 S.C.R. 1469. Statutes and Regulations Cited Act to amend the Criminal Code and the Young Offenders Act, S.C. 1993, c. 45, s. 6.

Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts inrelation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, s. 20. Canadian Charter of Rights and Freedoms, ss. 6(1), 7, 24(1). Constitution Act, 1982. Criminal Code, R.S.C. 1985, c. C-46, ss. 280 to 283, 282, 285 [formerly s. 250.4; ad. 1980-81-82-83, c. 125, s. 20]. Extradition Act, R.S.C. 1985, c. E-23 [am. 1992, c. 13], s. 13. Extradition Act, S.C. 1999, c. 18, ss. 3(1), (2), 15(1), (3), 24(2), 29, 31 to 37, 32(1), 40, 42, 43(2), 44 to 47.

Immigration Act, R.S.C. 1985, c. I-2 [repl. 2001, c. 27]. Immigration and Refugee Protection Act, S.C. 2001, c. 27. Immigration Regulations, 1978, SOR/78-172, s. 2.1 [ad. SOR/93-44, s. 2]. O.C.G.A., § 16-5-45(c)(1) (2011). Treaties and Other International Instruments Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 [the European Convention on HumanRights], art. 8. Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, art. 13(b). Convention on the Rights of the Child, Can. T.S. 1992 No. 3, art. 19.

Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3, arts. 2, 10. Authors Cited Canada. House of Commons. House of Commons Debates, vol. XV, 3rd Sess., 34th Parl., May 6, 1993, p. 19017. Canada. House of Commons. House of Commons Debates, vol. XVII, 1st Sess., 32nd Parl., August 4, 1982, p. 20040. Canada. House of Commons. House of Commons Debates, vol. 135, No. 135, 1st Sess., 36th Parl., October 8, 1998, p. 9006. Canada. House of Commons. House of Commons Debates, vol. 135, No. 162, 1st Sess., 36th Parl., November 30, 1998, p. 10591. Canada. House of Commons.

Standing Committee on Justice and Human Rights. Evidence, No. 096, 1st Sess., 36th Parl., November 4,

1998 (online: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=1039051&Language=E&Mode=1&Parl=36&Ses=1),16:40. Canada. Minister of Justice and Attorney General. Information on Bill C-127. Ottawa: Department of Justice, 1983. Canada. Senate. Debates of the Senate, vol. IV, 3rd Sess., 34th Parl., June 16, 1993, p. 3536. Goldstein, Joseph, Anna Freud and Albert J. Solnit. Beyond the Best Interests of the Child, new ed. New York: Free Press, 1979. La Forest, Anne Warner. La Forest’s Extradition to and from Canada, 3rd ed. Aurora, Ont.: Canada Law Book, 1991. Shearer, I. A.

Extradition in International Law. Manchester: Manchester University Press, 1971. Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992. APPEAL from two judgments of the Quebec Court of Appeal (Thibault, Doyon and Dutil JJ.A.), 2014 QCCA 681, [2014]AZ-51061285, [2014] Q.J. No. 2910 (QL), 2014 CarswellQue 3081 (WL Can.), dismissing an application for judicial review of asurrender order made by the Minister of Justice; and (Morissette, Gagnon and Gascon JJ.A.), 2012 QCCA 1142, [2012] AZ-50866680,[2012] Q.J.

No. 5896 (QL), 2012 CarswellQue 6422 (WL Can.), setting aside a decision of Cohen J., 2011 QCCS 4800, [2011]AZ-50778075, [2011] Q.J. No. 12453 (QL), 2011 CarswellQue 9861 (WL Can.). Appeal dismissed, Abella, Karakatsanis and Côté JJ.dissenting. Julius H. Grey, Cornelia Herta-Zvezdin, Clemente Monterosso and Iris Simixhiu, for the appellant. Ginette Gobeil and Diba Majzub, for the respondent. John Norris and Meara Conway, for the intervener the Criminal Lawyers’ Association (Ontario). Brent Olthuis, Greg J. Allen and Michael Sobkin, for the intervener the British Columbia Civil Liberties Association.

The judgment of McLachlin C.J. and Cromwell, Moldaver and Wagner JJ. was delivered by Cromwell J. — I. Introduction [1] The extradition process serves two important objectives: the prompt compliance with Canada’s internationalobligations to our extradition partners, and the protection of the rights of the person sought. The latter objective places important limitson when extradition can be ordered. The appellant in this case says that these limits should prevent her extradition to the state of Georgiato face child abduction charges.

She claims that she would have a good defence if prosecuted in Canada, that there is no comparabledefence in Georgia, and that extraditing her would be contrary to the best interests of her children. [2] The first limit on which the appellant relies is that a person will not be extradited unless a Canadian judge finds thatthere is a case to meet against him or her. The appellant maintains that this requirement is not met here because she has a good defence tothe charges and the evidence against her is weak. But the appellant’s position is based on a misconception of the extradition judge’srole.

Fairness in extradition requires only that the judge find that there is evidence of conduct that, had it occurred in Canada, “wouldjustify committal for trial”: Extradition Act, S.C. 1999, c. 18, s. 29(1)(a). The extradition judge is not to consider defences or weighconflicting evidence other than in limited circumstances that do not exist here. The appellant in effect wants to turn the extraditionprocess into a trial. But the extradition process is not a trial and, as the Court said nearly three decades ago, it should never be permittedto become one: Canada v.

Schmidt, (SCC), [1987] 1 S.C.R. 500, at p. 515. [3] The appellant also invokes a second limit. At the ministerial phase of the extradition process, the Minister of Justicemust not surrender a person for extradition if this would be unjust or oppressive: Extradition Act, s. 44. As I will explain, the appellant isright to say that potential defences and the best interests of her children are relevant to the Minister’s decision making and can beconsidered by the Minister.

But, in this case, the Minister’s decision to send the appellant to Georgia for trial was reasonable,notwithstanding the appellant’s arguments. [4] It will become obvious that I take a markedly different view than my colleague Abella J. of both the content of therecord and of the governing legal principles. As I see it, my colleague’s reasons propose to turn extradition hearings into trials. But theimplications of that approach compellingly demonstrate why this should not be done. II.

Facts and Issues [5] The appellant is the mother of three children, a boy and two girls who were respectively 18, 15 and 13 at the timethis appeal was heard. The family was living in Georgia when the parents separated and divorced. The Georgia courts awarded the fathersole custody of the three children in June 2008. The appellant was given no visitation rights and was permitted no further contact withthe children. [6] In October 2010, the father reported the children missing. That December, Georgia police located the appellant andher children in a battered women’s shelter in Quebec.

She was arrested and initially denied bail pending her committal hearing. InFebruary 2011, the U.S., on behalf of Georgia, sought her extradition to face prosecution in Georgia for interstate interference withcustody. Later that same month, the Minister of Justice issued an Authority to Proceed (“ATP”) with extradition, listing thecorresponding Canadian offences of abduction in contravention of a custody order (s. 282(1) of the Criminal Code, R.S.C. 1985, c. C-46)and abduction of a person under 16 (s. 280(1) of the Criminal Code).

The children were placed in a foster family following a judgmentfrom the Court of Québec: Protection de la jeunesse — 113190, 2011 QCCQ 11853 (Lise Gagnon J.C.Q., May 26, 2011).

[7] In an oral decision rendered June 8, 2011 (with written reasons dated June 20), the Quebec Superior Court grantedthe appellant bail pending her committal hearing and, in an oral decision on July 8, 2011 (with written reasons dated August 10),dismissed the application for committal for extradition: 2011 QCCS 4800. On June 15, 2012, the Quebec Court of Appeal set aside theSuperior Court’s order of discharge and ordered the appellant’s committal for extradition: 2012 QCCA 1142.

On November 28, 2012,the Minister of Justice ordered the appellant’s surrender for extradition and, on April 4, 2014, the Court of Appeal dismissed theappellant’s application for judicial review of the Minister’s decision: 2014 QCCA 681. The most recent information that we have aboutthe children is that the Minister understood that they had been returned to the appellant’s care in June 2011 following her release on bail. [8] The appellant appeals both the committal and the surrender orders. III. Analysis A.

Introduction [9] The appellant raises issues with respect to both the committal process and the surrender process. With respect tocommittal, the appellant submits that the Court of Appeal took too narrow a view of the extradition judge’s role at the committal hearing.Her submissions revolve around two main questions:

(1) Should the extradition judge consider evidence about possible defences and other exculpating circumstances in decidingwhether to commit for extradition?

(2) Applying the appropriate legal test for committal, did the evidence justify committal? [10] These two questions relate to some of the fundamental principles of extradition law. The first concerns the doublecriminality requirement of extradition — that the conduct alleged against the appellant must be criminal had it been committed inCanada. The second concerns the extradition judge’s role in assessing the weight to be given to the evidence relied on to supportcommittal. This latter question was the subject of the Court’s decision in United States of America v.

Ferras, 2006 SCC 33, [2006] 2S.C.R. 77, which has received varied treatment by our appellate courts. This appeal provides an opportunity to clarify and furtherdevelop the law in relation to the committal process. [11] With respect to the Minister’s surrender decision, the appellant raises two main issues concerning the question ofwhether the Minister’s decision was unreasonable:

(1) Did the Minister fail to give appropriate consideration to the fact that a defence potentially available to the appellant underCanadian law is not available under the law of the requesting state?

(2) Did the Minister fail to give appropriate consideration to the effect of extradition on the best interests of the appellant’schildren? [12] These issues relate to the Minister’s obligation to refuse surrender where extradition would be “unjust or oppressive”(Extradition Act, s. 44(1)(a)) or where extradition would unjustifiably limit the rights under the Canadian Charter of Rights andFreedoms of the person sought for extradition.

They also raise questions about how the committal and surrender phases of theextradition process relate to each other. [13] Before turning to my analysis of these issues, it will be helpful to put them in the context of the purposes and schemeof our extradition law. B. Fundamental Principles of Extradition Law

(1) Introduction [14] Extradition law starts with a basic principle: while a person is in a country, he or she is subject to that country’scriminal law and should expect to be answerable to it (United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, at para. 72). Extraditionis the process by which one state assists another in putting that principle into practice.

The Extradition Act implements, through domesticlaw, Canada’s international obligations to surrender persons found here so that they will face prosecution, or serve sentences imposed, inanother country (I will limit my brief review here to extraditions which are sought for prosecution).

Of course, Canada’s internationalobligations to surrender for extradition are subject to various conditions. [15] Extradition serves pressing and substantial Canadian objectives: protecting the public against crime through itsinvestigation; bringing fugitives to justice for the proper determination of their criminal liability; and ensuring, through internationalcooperation, that national boundaries do not serve as a means of escape from the rule of law (Sriskandarajah v. United States of America,2012 SCC 70, [2012] 3 S.C.R. 609, at para. 10).

To achieve these pressing and substantial objectives, our extradition process is foundedon the principles of “reciprocity, comity and respect for differences in other jurisdictions”: Canada (Justice) v. Fischbacher, 2009 SCC46, [2009] 3 S.C.R. 170, at para. 51, per Charron J. for a majority of the Court, quoting Kindler v. Canada (Minister of Justice), (SCC), [1991] 2 S.C.R. 779, at p. 844, per McLachlin J. (as she then was).

These principles “are foundational to the effectiveoperation of the extradition process” (Fischbacher, at para. 51) and mandate the prompt execution of Canada’s international obligations. [16] That said, the rights and interests of persons sought for extradition must be protected. This requires a carefulbalancing of the broader purposes of extradition with those individual rights and interests. Extradition is a three-phase process and, ateach stage, concern to balance these interests is apparent. Also underlying all three phases is the broad principle of double criminality,

that is, the principle that Canada should not extradite a person to face punishment in another country for conduct that would not be criminal in Canada. [ 17 ] This broad principle of double criminality is expressed in s. 3(1) (

b) of the Extradition Act : “A person may be extradited from Canada” if “the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada”. This broad principle, however, is given more precise meaning and is applied in more precise ways by other provisions of the Extradition Act . The Extradition Act , of course, must be read as a whole and the broad words of s. 3(1)(

b) must be understood in light of the more specific provisions. [ 18 ] At the first two phases of the extradition process, the Extradition Act addresses double criminality in express statutory terms. At the third, the rationale underlying the broad principle of double criminality informs the exercise of the Minister’s power to refuse surrender for extradition where surrender would be “unjust or oppressive” under s. 44(1) (

a) of the Extradition Act .

(2) The First Phase: the Authority to Proceed (‟ATPˮ) [ 19 ] The first phase of the extradition process relates to receipt of an extradition request from a foreign state and the decision of the Minister of Justice whether to proceed with it by issuing an ATP. The Minister’s role is to satisfy him- or herself that two basic requirements for extradition are met. The first is that, subject to any relevant extradition agreement, the offence for which extradition is sought is punishable in the requesting state for a maximum term of two years or more or by a more severe punishment: ss. 15(1) and 3(1) (

a) of the Extradition Act . The second is to identify the Canadian offence or offences that would make the alleged conduct criminal in Canada. The Extradition Act directs that it is not relevant that the alleged conduct under foreign law “is named, defined or characterized . . . in the same way as it is in Canada”: s. 3(2) . [ 20 ] At this stage in the process, the Minister is concerned in part with the foreign law aspect of the double criminality principle: he or she must be satisfied, among other things, that the offence for which extradition is sought is criminal in the requesting state.

The Minister is also concerned with aspects of domestic criminal law because he or she must identify the corresponding Canadian offences: s. 15(3) (

c) of the Extradition Act ; Fischbacher , at para. 27 . [ 21 ] In this case, the requesting state sought extradition for the Georgia offence of interstate interference with custody, in violation of § 16-5-45(c)(1) of the Official Code of Georgia Annotated . The Minister issued an ATP stating that the Canadian offences which correspond to the alleged conduct are abduction in contravention of a custody order ( s. 282(1) of the Criminal Code ) and abduction of a person under 16 ( s. 280(1) of the Criminal Code ).

(3) The Second Phase: Judicial Committal or Discharge [ 22 ] If, as here, the Minister issues an ATP, the extradition moves to the committal phase. This phase plays an important, although carefully circumscribed, role in protecting the rights of the person sought. That role is defined by s. 29(1) (

a) and (3) of the Extradition Act . The extradition judge is to determine two things: (1) whether “there is evidence admissible under this 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 (2) “that the person [before the court] is the person sought by the extradition partner” (s. 29(1)( a )). Committal is ordered if the judge finds that these conditions exist; if not, the person must be discharged: s. 29(1)(

a) and (3). This means that the requesting state must show that it has evidence available for trial that would justify committal for trial in Canada for the Canadian offences specified in the ATP. [ 23 ] It is important to understand that s. 29(1) (

a) codifies and defines the role of the extradition judge with respect to the double criminality principle. That role is not defined by the broad principle of double criminality enunciated in s. 3(1) ( b ). Rather, s. 29(1) (

a) is a specific provision which addresses and exhaustively defines the extradition judge’s role. In my respectful view, the failure to recognize this is a fatal flaw in the appellant’s position in relation to the role of the extradition judge. [ 24 ] The appellant submits that the role of the extradition judge must be conceived of much more broadly than the role of the preliminary inquiry justice. As discussed below, I must reject this submission.

(4) The Third Phase: Ministerial Surrender or Refusal to Surrender for Extradition [ 25 ] If the extradition judge orders committal, the case moves back to the Minister to exercise the power under s. 40 of the Extradition Act to surrender or to refuse to surrender the person sought. This phase of the process, while of course subject to the requirements of the statute and the Charter , is essentially political in nature.

In carrying out his or her duties, the Minister must take into account Canada’s international obligations and the requirement to act as a responsible member of the international community in responding to a request by an extradition partner: see, e.g., Németh v. Canada (Justice) , 2010 SCC 56 , [2010] 3 S.C.R. 281, at para. 64 . [ 26 ] The Extradition Act provides a number of bases on which the Minister may or must refuse surrender: ss. 44 to 47 .

The provision relevant to this appeal provides that the Minister must refuse surrender if “the surrender would be unjust or oppressive having regard to all the relevant circumstances”: s. 44(1) ( a ). The jurisprudence holds that the Minister must also refuse surrender where the consequences of surrender would be contrary to the principles of fundamental justice under s. 7 of the Charter or, in the case of a Canadian citizen, be an unjustified infringement of the right to remain in Canada guaranteed by s. 6(1) of the Charter .

In exercising this power, the Minister must consider, when relevant, the best interests of children who are or may be affected by the extradition and whether there is a significant difference in jeopardy between domestic and foreign law. With respect to this latter consideration, the rationale of the broad principle of double criminality may inform the Minister’s exercise of this authority to refuse surrender if there are defences available in Canada that are not available in the requesting state. C. Appeal From Committal for Extradition

(1) Issues and Overview [ 27 ] The committal appeal raises two main issues:

(1) Should the extradition judge consider evidence about possible defences and other exculpating circumstances in decidingwhether to commit for extradition?

(2) Applying the appropriate legal test for committal, did the evidence justify committal? [28] As I will explain, my view is that the extradition judge applied incorrect principles in relation to the doublecriminality requirement and her role in assessing the reliability of the evidence before her. She also erred, in my respectful view, inconcluding that the evidence in the certified record of the case (“ROC”) was insufficient to require committal. The Court of Appeal wascorrect to set aside the appellant’s discharge and to order her committal for extradition.

(2) First Issue: Exculpatory Evidence and Defences at the Committal Stage (

a) Decisions and Submissions (

i) Extradition Judge [29] In opposing committal, the appellant sought admission of a great deal of evidence to show that she had not abductedthe children but that they had run away from their father, at whose hands they suffered physical and mental abuse, and that the appellantharboured the children for their protection.

Despite counsel for the requesting state’s opposition, the extradition judge admitted most ofthe evidence, holding that it was relevant and sufficiently reliable to be admissible. [30] The extradition judge then considered whether the requesting state’s evidence justified committal for trial in Canadafor the offences of abduction of a person under 16 and abduction in contravention of a custody order (ss. 280(1) and 282(1) of theCriminal Code).

She refused committal on both. [31] With respect to s. 280(1), the extradition judge found that the evidence showed that the appellant had not taken thechildren from their father but that they had run away. With respect to s. 282(1), the extradition judge found that there was no evidencethat the appellant had harboured the children with the specific intent of depriving their father of custody.

She came to this conclusionessentially by relying on the defence found at s. 285 of the Criminal Code, which reads: 285. [Defence] No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticingaway, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger ofimminent harm or if the person charged with the offence was escaping from danger of imminent harm. [32] The extradition judge held that this defence could be considered at the committal stage of extradition proceedingsbecause double criminality requires the extradition judge to proceed to a meaningful judicial assessment of all of the evidence based onCanadian law.

Relying on s. 285, and in light of the evidence adduced by the appellant, the extradition judge ruled that “no reasonablejury could draw the inference, as submitted by the Requesting State, that the mother’s intent was to deprive the father of possession ofthese children”: para. 75 . Moreover, the evidence showed that the appellant’s conduct would not be criminal if it had occurredin Canada. (ii) Court of Appeal [33] The Quebec Court of Appeal found that the evidence that the children had run away on their own and that theappellant harboured the children to protect them from future harm was exculpatory in nature.

It was aimed at contradicting the ROC andlaying the ground for a potential defence of the respondent. By taking such matters into consideration, the judge went beyond the properrole of an extradition judge as defined by Ferras. (iii) Submissions [34] The appellant submits that the Court of Appeal took too narrow a view of the extradition judge’s role and of theinquiry mandated by Ferras. In line with this reasoning, the intervener British Columbia Civil Liberties Association submits that anextradition judge must inquire as to the existence of exculpatory defences.

Both the text of the Extradition Act and the expanded role ofthe extradition judge set out in Ferras mandate this broader inquiry which is also consistent with international law. [35] The respondent opposes this line of reasoning, noting that the Court has repeatedly emphasized the limited scope ofthe extradition judge’s role. Extradition hearings are not trials and extradition judges are not to consider and weigh evidence pertaining todefences. The extradition judge, by virtue of s. 29(1) of the Extradition Act, is concerned solely with determining whether there issufficient evidence to justify committal.

That determination does not involve looking at potential defences, and Ferras did not holdotherwise. (

b) Analysis (

i) Scope of the Extradition Judge’s Role [36] The committal phase of the extradition process serves an important, but circumscribed and limited screeningfunction. The role of the extradition judge is simply to decide whether he or she is satisfied that the person before the court is the personsought and whether “there is evidence admissible under [the Extradition Act and available for trial] of conduct that, had it occurred inCanada, would justify committal for trial in Canada on the offence set out in the authority to proceed”: s. 29(1)(

a) of the Extradition Act;see also Ferras, at para. 50. [37] The reference to evidence that “would justify committal for trial in Canada” in s. 29(1)(

a) of the Extradition Act

incorporates the test that a justice conducting a preliminary inquiry must apply when deciding whether to commit an accused for trial inCanada: see, e.g., Skogman v. The Queen, (SCC), [1984] 2 S.C.R. 93; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828.This is also the test that applies to whether a trial judge should order a directed verdict of acquittal at the end of the Crown’s case: seee.g., United States of America v. Shephard, (SCC), [1977] 2 S.C.R. 1067; Mezzo v. The Queen, (SCC),[1986] 1 S.C.R. 802; R. v. Charemski, (SCC), [1998] 1 S.C.R. 679. [38] Thus, the language of s. 29(1)(

a) links the role of the extradition judge in relation to double criminality to the test forcommittal (and directed verdicts). The incorporation of the test for committal to trial is meant to make the extradition process efficient,permitting prompt compliance with Canada’s international obligations, while also ensuring that there is at least a prima facie caseagainst the person of a Canadian crime: see, e.g., United States of America v. Dynar, (SCC), [1997] 2 S.C.R. 462, atparas. 121-22; Ferras, at para. 21.

The extradition judge’s role is to determine whether there is a prima facie case of a Canadian crime,not to become embroiled in questions about possible defences or the likelihood of conviction. Extradition hearings are not trials; they areintended to be “expeditious procedures to determine whether a trial should be held”: Dynar, at para. 122, quoting McVey (Re), (SCC), [1992] 3 S.C.R. 475, at p. 551. [39] However, the role of the extradition judge at the committal phase has evolved as a result of amendments to otheraspects of the Extradition Act and the requirements of the Charter.

The result is that while the test for committal for trial continues toapply in extradition, the role of the extradition judge in applying that test differs in two respects from the preliminary inquiry context. [40] The first difference is that the extradition judge, unlike the preliminary inquiry justice, may grant Charter remediesthat pertain directly to the circumscribed issues relevant to committal: see, e.g., R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623; UnitedStates of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532.

The second is that the extradition judge, unlike the preliminary inquiryjustice, must engage in a limited weighing of the evidence to determine whether there is a plausible case. Thus, where the evidence is sodefective or appears so unreliable that the judge concludes it would be dangerous or unsafe to convict, then the case is consideredinsufficient for committal: Ferras, at para. 54.

This ensures that the extradition process does not “deprive the person sought of theindependent hearing and evaluation required by the principles of fundamental justice applicable to extradition”: Ferras, at para. 40; seealso paras. 47-49. [41] The appellant’s position is that the extradition judge is entitled to assess exculpatory evidence including evidence ofnecessity.

It is clear that the preliminary inquiry justice cannot do so in the context of committal to trial and there can be little seriousdoubt that the change proposed by the appellant would constitute a significant alteration of long-settled principles about the nature of theextradition process. Therefore, the question of principle underlying the appellant’s position is whether we should further differentiatebetween the two roles by expanding the role of the extradition judge. [42] In my view, we should not take this step.

The changes in the role of the extradition judge which occurred in Kwokand Ferras were based on legislative changes to the Extradition Act. Both decisions were clear that the basic principles governingextradition remained the same despite these amendments. In this case, there is no legislative or other development that supports thefundamental change proposed by the appellant. [43] In order to explain why I have reached this conclusion, it will be helpful to explore in more detail the role of thepreliminary inquiry justice in relation to committal for trial.

By virtue of s. 29 of the Extradition Act, that is also the framework thatgoverns the role of the extradition judge. We must then consider how and why that role has changed before turning to evaluate theappellant’s submissions. (ii) The Test for Committal to Trial [44] The role the appellant proposes for the extradition judge has no parallel with that of the preliminary inquiry justice.

A preliminary inquiry justice could not refuse to commit for trial on the basis of the sort of exculpatory evidence relied on by theappellant. [45] The test for committal for trial is whether there is any admissible evidence that could, if believed, result in aconviction: Shephard, at p. 1080; Arcuri, at para. 21.

Where the evidence is circumstantial, the judge must conduct a limited weighing ofthe circumstantial evidence to assess whether, in light of all of the evidence including any defence evidence, it is reasonably capable ofsupporting the inferences that the Crown asks to be drawn: Arcuri, at para. 23. [46] The preliminary inquiry justice is concerned only with the essential elements of the offence and any other conditionson which the prosecution bears the evidential burden of proof: Arcuri, at para. 29; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, atpara. 16; R. v.

Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 24. The justice has no role to play with respect to matters on whichthe accused bears an evidential (or persuasive) burden. The rule was perhaps most clearly stated in a directed verdict case to which thesame rule applies: there must be a committal for trial if there is “some evidence of culpability for every essential definitional element ofthe crime for which the Crown has the evidential burden” (Charemski, at para. 3 (emphasis in original), per Bastarache J. for a majorityof the Court, referring to J. Sopinka, S. N. Lederman and A. W.

Bryant, The Law of Evidence in Canada (1992), at p. 136). While theaccused is entitled to present evidence by way of defence, the preliminary inquiry justice cannot weigh the merits of that evidence inreaching his or her decision as to whether to commit for trial: Hynes, at para. 52, per Major J., dissenting.

Thus, where the Crown hasadduced direct evidence on all the elements of the offence, the justice must commit even if the defence proffers exculpatory evidence:Sazant, at para. 16. [47] Nor is the preliminary inquiry justice to assess the quality, credibility or reliability of the evidence, with theexception of the limited weighing to assess whether the inferences which the Crown seeks to be drawn from circumstantial evidence arereasonable as contemplated in Arcuri: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 15.

So, for example, it is ajurisdictional error for the justice to refuse to commit because, in the judge’s view, the identification evidence did not establishidentification beyond a reasonable doubt: Dubois v. The Queen, (SCC), [1986] 1 S.C.R. 366, at pp. 378-79. [48] In light of these principles, a preliminary inquiry justice could not refuse to commit the appellant on the basis of the

evidence on which she relies. The justice could not consider evidence of necessity because there is no evidentiary burden on the Crownwith respect to those circumstances.

Under s. 285 of the Criminal Code, the Crown does not have to make out a prima facie case of theabsence of circumstances of necessity in order to have an accused committed for trial under ss. 280(1) and 282(1) of the Criminal Code.As for other exculpatory evidence, the preliminary inquiry justice could not assess its quality, credibility or reliability or rely on it tojustify discharging an accused. (iii) The Role of the Extradition Judge Before Kwok and Ferras [49] Before Kwok and Ferras, the role of the extradition judge in deciding whether to commit closely resembled that ofthe preliminary inquiry justice.

Thus, as in the case of committal for trial, the extradition judge had no discretion to refuse to extradite ifthere were any evidence supporting each of the elements of the offence alleged: Shephard, at p. 1080. An extradition judge had nojurisdiction to deal with defences unless the governing extradition treaty provided otherwise: Schmidt, at p. 515. Like the preliminaryinquiry justice, the extradition judge (before the legislative amendments in 1992, as discussed in greater detail below) had no Charterjurisdiction.

In short, the test for committal for extradition was tied closely to the test for committal for trial and, like the preliminaryinquiry justice, the extradition judge had no role to play with respect to matters that were not part of the Crown’s prima facie case. [50] This link to the test for committal was stated explicitly in Schmidt: the purpose of the extradition hearing is todetermine “whether there is such evidence of the crime alleged to have been committed in the foreign country as would, according to thelaw of Canada, justify his or her committal for trial if it had been committed here” (p. 515).

More recently, the Court affirmed this link inFischbacher: “The [extradition] judge must consider the evidence in light of Canadian law and determine whether it reveals conduct thatwould justify committal for the crime listed in the ATP if it had occurred in Canada” (para. 35). [51] Extradition judges also distinguished between sufficiency of evidence — which was their concern — and reliability,which was not. So, for example, material that “is so bereft of detail, such as the witness’ means of knowledge, that the judge cannotdetermine its sufficiency” would not justify committal: United States of America v.

Yang (2001), (ON CA), 56 O.R.(3d) 52 (C.A.), at para. 63. Two examples given by the Court of Appeal in Yang are instructive. The first concerned a statement thatpolice suspected the person sought of committing the offence. The court noted that without any basis being disclosed for this suspicion,that statement would not be sufficient to permit committal: para. 63. The second example concerned admissible hearsay evidencecontaining direct evidence of guilt.

This, the court stated, would be sufficient for committal because the judge’s function does not includeassessing the reliability of that evidence: para. 64. [52] The broad principle of double criminality and its underlying rationale are of fundamental importance to ourextradition process, and as I have explained, they operate in specific ways at each of the three stages of our extradition process. However,at the committal stage, the extradition judge’s role with respect to double criminality has been given specific legislative expression in thetest for committal under s. 29 of the Extradition Act.

This provision gives precise statutory definition to the role of the extradition judgewith respect to double criminality. It is s. 29 that delineates the judge’s role in determining whether the evidence meets the domesticcomponent of double criminality and directly links that role to the test for committal at trial: Fischbacher, at para. 35.

That test, as I haveexplained, does not permit the judge to consider aspects of the criminal conduct on which the accused bears an evidential burden: see,e.g., Fischbacher, at para. 52; Schmidt, at p. 515. [53] Basic fairness to the person sought does not require that the extradition process have all of the safeguards of a trial,“provided the material establishes a case sufficient to put the person on trial”: Ferras, at para. 21 (emphasis added). It bears repeatingthat defences and other matters on which the accused bears an evidential burden of proof play no

part in deciding whether the Crown’scase is sufficient to put the person on trial. (iv) Changes to the Role of the Extradition Judge: Kwok and Ferras [54] Kwok and Ferras created significant differences between how the preliminary inquiry justice and the extraditionjudge apply the same legal test for committal. It is helpful in considering the new approach advocated by the appellant to examinebriefly these differences, which, in my view, do not assist the appellant. 1. Charter Jurisdiction: Kwok [55] Before 1992, the extradition judge had no Charter jurisdiction.

The decision to commit was reviewable by way ofhabeas corpus and the judge conducting that review had authority to apply the Charter to issues relevant to the committal decision: seeKwok, at paras. 4 and 35. The Extradition Act, R.S.C. 1985, c. E-23, was amended in 1992 (S.C. 1992, c. 13) so that the functionspreviously exercised by the extradition judge and the judge on review by means of habeas corpus were combined in the extraditionjudge: Kwok, at para. 39.

In addition, the amended legislation specified that a superior court judge sitting as an extradition judge had, forthe purposes of the Constitution Act, 1982, the same competence otherwise possessed by a superior court judge.

The Court in Kwok heldthat the effect of these changes was to permit “the extradition judge to exercise the jurisdiction previously reserved for the habeas corpusjudge, which includes remedies for the Charter breaches that pertain directly to the circumscribed issues relevant at the committal stageof the extradition process”: para. 57. [56] This change does not assist the appellant and the appellant does not suggest that it does. The Court noted that thedecision in Kwok “leaves the powers and functions of the committal court substantially unchanged”: para. 57. 2.

Ferras: Limited Weighing [57] Ferras decided that the extradition judge’s role with respect to weighing evidence must be somewhat enlargedcompared to that of the preliminary inquiry justice. This change was spurred by legislative amendment (i.e., the Extradition Act, S.C.1999, c. 18) as well as by the different demands of s. 7 of the Charter in the extradition, as opposed to the preliminary inquiry, context. [58] The legislative changes considered in Ferras related to what evidence could be admitted at the committal stage andthe definition of the extradition judge’s role in the Extradition Act currently in force.

With respect to evidence, the Extradition Act now

provides for evidence to be admitted, even if not otherwise admissible under Canadian law, if contained in the certified ROC: s. 32(1) ( a ). With respect to the role of the extradition judge, the text of the previous Extradition Act had “cemented the analogy” between the role of the extradition judge and the role of a preliminary inquiry justice: Ferras , at para. 48 . It directed the extradition judge to “hear the case, in the same manner, as nearly as may be, as if the fugitive was brought before a justice of the peace, charged with an indictable offence committed in Canada”: s. 13.

The 1999 amendments to the Extradition Act modified this direction so that it simply provided the extradition judge with the same powers as a preliminary inquiry justice, “with any modifications that the circumstances require”: s. 24(2) ; see Ferras , at para. 48 . This weakened the strength of the analogy between the two roles. [ 59 ] The Court also noted some differences between the committal hearing and a preliminary inquiry that brought different Charter considerations into play.

First, evidence at a preliminary inquiry is admitted according to Canadian rules of evidence and brings with it the “inherent guarantees of threshold reliability” required by those rules: Ferras , at para. 48 . Evidence at an extradition hearing, however, by virtue of the expanded rules of admissibility noted in the previous paragraph, “may lack the threshold guarantees of reliability afforded by Canadian rules of evidence”: ibid . Second, as discussed earlier, the extradition judge, unlike the preliminary inquiry justice, has the authority to grant Charter remedies.

Thus, while the extradition hearing and the preliminary inquiry are both pre-trial screening devices and both use the same test of sufficiency of evidence for committal, the Court found that these differences made it “inappropriate to equate the task of the extradition judge with the task of a judge on a preliminary inquiry”: ibid . [ 60 ] The analysis in Ferras of these differences led the Court to modify the role of the extradition judge.

This adjustment was also prompted by the combination of the limited role of the extradition judge as set out in Shephard and the evidentiary provisions of the 1999 Extradition Act which “effectively removed much of an extradition judge’s former discretion to not admit evidence”: Ferras , at para. 41 . The Court concluded that denying an extradition judge’s discretion to refuse committal for reasons of insufficient evidence would “violate a person’s right to a judicial hearing by an independent and impartial magistrate — a right implicit in s. 7 of the Charter where liberty is at stake”: para. 49.

In light of this, the Court found that the test for committal under s. 29(1) of the Extradition Act granted the extradition judge discretion to refuse extradition on the basis of insufficient evidence: for example, where the reliability of the evidence certified was successfully impeached or where there was no evidence that the evidence was available (para. 50). This was a significant change from the jurisprudence before Ferras , which, as noted above, restricted the extradition judge’s inquiry to the sufficiency of the evidence. (

v) The Extradition Judge’s Role After Ferras [ 61 ] Ferras acknowledged both the importance and the limits of the committal process. It ensures that the person will not be extradited unless the requesting state makes out a prima facie case: see, e.g., Dynar , at para. 119 . But this “modest screening device . . . is structured around the fundamental concept that the actual trial takes place in the requesting state”: Yang , at para. 47 ; see also Ferras , at para. 48 .

Fairness in this context does not require a trial, but simply that there is sufficient evidence to justify putting the person on trial: Ferras , at para. 21 . [ 62 ] Ferras did not envisage any change in the test for committal; there was no challenge to that statutory test in s. 29 of the Extradition Act which links committal for extradition to the test for committal for trial. Nor did Ferras envisage any fundamental change in the nature of the committal process.

The Court noted that the extradition judge’s role is not to determine guilt or innocence or to engage in the ultimate assessment of reliability: paras. 46 and 54. The evidence in the ROC is presumed to be reliable and “[u]nless rebutted, this presumption of reliability will stand and the case will be deemed sufficient to commit for extradition”: para. 66. In Ferras , the fact that some of the evidence was hearsay and came from unsavoury witnesses did not rebut this presumption. The Court underlined the point that “the issue is not whether the information in the record is actually true”: para. 68.

The extradition judge’s limited weighing goes only to whether there is “a plausible case”: para. 54. [ 63 ] This means that there continues to be a high threshold for refusing committal on the basis that the supporting evidence is unreliable.

It is only where the evidence supporting committal is “so defective or appears so unreliable” or “manifestly unreliable” that it would be “dangerous or unsafe” to act on it that the extradition judge is justified in refusing committal on this basis: Ferras , at paras. 54 and 40 . [ 64 ] While the role of the extradition judge in scrutinizing evidence has been somewhat enhanced to ensure Charter compliance, it remains the case that an extradition hearing is not a trial and it should never be permitted to become one: Schmidt , at p. 515.

The process is intended to be expeditious and efficient so as to “ensure prompt compliance with Canada’s international obligations”: Dynar , at para. 122 . [ 65 ] There is nothing in Ferras , or in the analysis that underlies it, suggesting any change in the extradition judge’s statutorily defined role with respect to double criminality. Quite the reverse. Ferras reiterates that the test remains whether there is evidence that is sufficient to justify committal had the conduct occurred in Canada: see para. 46.

The preliminary inquiry justice has never had any role to play in assessing potential defences or excuses or other aspects of the crime on which

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