2017 QCCA 1562, 2017 QCCA 1562

Unofficial English Translation Ruiz Gomez c. Ministre de la Justice du Canada 2017 QCCA 1562 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005941-156 (550-38-000408-140) DATE: October 10, 2017 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. GENEVIÈVE MARCOTTE, J.A. MARIE-JOSÉE HOGUE, J.A. FERNELLY RUIZ GOMEZ APPLICANT v.

MINISTER OF JUSTICE OF CANADA RESPONDENT JUDGMENT [ 1 ] The applicant filed an application for judicial review of the Minister’s extradition order ( s. 57 of the Extradition Act , S.C. 1999, c. 18). [ 2 ] For the reasons of Justice Hogue, with which Justices Vauclair and Marcotte agree: THE COURT: [ 3 ] GRANTS the appeal in part; [ 4 ] QUASHES the extradition order against Mr. Gomez and refers the file back to the Minister of Justice so that she may make a new determination in light of these reasons. MARTIN VAUCLAIR, J.A. GENEVIÈVE MARCOTTE, J.A. MARIE-JOSÉE HOGUE, J.A.

Mtre Anthony Karkar For the applicant Mtre Claudine Dib Minister of Justice of Canada For the respondent Hearing Date: November 15, 2016

REASONS OF HOGUE, J.A. [ 5 ] The applicant Fernelly Ruiz Gomez seeks judicial review of the July 15, 2015 decision of the Minister of Justice (then the Honourable Peter MacKay) ordering his surrender. [ 6 ] The Circuit Criminal Court 5, Medellín declared the applicant guilty of accesso carnal violento [aggravated sexual assault with a person under the age of 16] (ss. 205 and 211.2 of the C ó digo Penal [Penal Code of Colombia] and s. 14 of the Ley 890 de 2004 [Law 890/2004]).

An appeal from the verdict was dismissed by the Superior Tribunal, Medellín. [ 7 ] The order under review provides for his surrender to Colombia to serve a prison sentence of 170 months and 20 days, or just over 14 years. [ 8 ] The applicant submits that this surrender order is unjust, oppressive, would shock the conscience of Canadians and also violates s. 7 of the Canadian Charter of Rights and Freedoms . [1] [ 9 ] More specifically, he argues that his trial was unjust and unfair, that the sentence imposed is excessive and that his limited financial resources prevented him from retaining counsel at trial and from appealing the decision of the Superior Tribunal, Medellín.

He adds that Colombia is a country rife with corruption and that he was a victim of arbitrary, inadequate and corrupt acts during the course of these judicial proceedings.

Before this Court, he added that the Minister fundamentally erred in considering that the Colombian justice system is fair and just. [ 10 ] He made the same representations to the Minister before the latter rendered his decision, but the Minister determined that these representations did not justify refusing the extradition request. [ 11 ] Although I am of the view that these submissions do not allow us to grant the applicant’s request to definitively block his extradition, I believe that the analytical framework applied by the Minister was flawed and that the file should be returned to the acting Minister of Justice.

Indeed, it seems that the Minister at the time essentially based himself on the well-known, and theoretically adequate, presumption that the Colombian criminal justice system is fundamentally fair and just. In the particular context of this case, it is my opinion that he first had to decide whether the presumption, which is not absolute, was applicable in light of the evidence submitted by the applicant.

The acting Minister will now have to undertake this consideration and, subsequently, re-evaluate the request for extradition and the applicant’s observations in light of her conclusion. [ 12 ] I will provide some background and then explain my reasons for coming to this conclusion. BACKGROUND [ 13 ] The applicant is a Colombian citizen. He is married with two children.

Hoping to offer their children a safe living environment, he and his wife took steps to immigrate to Canada. [ 14 ] They obtained a Certificat de sélection du Québec on May 23, 2007 and filed an application for permanent residency on August 22, 2007. [ 15 ] The facts alleged against the applicant would have taken place in Colombia on July 4, 2007. [ 16 ] The daughter of his wife’s sister, his niece by marriage, then age 14, was sleeping at his home for the weekend.

She was very close to the family, particularly his oldest daughter. [ 17 ] A few days later, she was caught with the applicant’s bank cards, which she had purportedly used to withdraw several hundred dollars. [ 18 ] When confronted by her mother, she indicated that she had sought revenge against her uncle for an assault he had committed. She then confided to her mother that while she was sleeping at her uncle’s the week prior, he had come into her room, closed the door and sexually assaulted her.

He allegedly threatened to kill her mother if she didn’t keep quiet. [ 19 ] The mother of the victim immediately informed her sister, the applicant’s wife. [ 20 ] She also informed her that she intended to bring charges against him. The father of the victim was furious and allegedly threatened to kill the applicant. [ 21 ] The applicant decided to go to the police station with his wife to inform the authorities of the accusations that were about to brought against him and the threats the father had made.

[22] On May 16, 2008, charges of aggravated sexual assault were brought against the applicant. [23] The trial began on August 11, 2008 before the Criminal Court, Medellín.

However, it appears that a dispute between the judgeand counsel for the prosecution delayed the trial which was then put off for several months. [24] In the absence of opposition from the Criminal Court, the applicant and his family nevertheless left Colombia to move toQuebec, it being understood that the applicant would participate in the criminal proceedings from his new place of residence. [25] The trial took place in 2009 and the applicant appeared by videoconference from the Colombian Embassy in Ottawa.

Hevehemently denied the allegations against him and submitted that he was at a funeral home with his wife and family throughout theevening on which the alleged act was to have occurred. [26] He maintains that when he came home his daughter and niece were watching television in the living room and he immediatelywent to bed and stayed there for the rest of the night. [27] He was found guilty on June 19, 2009 and sentenced to 170 months and 20 days of imprisonment.

The verdict and the sentencewere confirmed by the appeal court of competent jurisdiction on November 13, 2009. [28] On June 6, 2011, by diplomatic note, the Republic of Colombia requested his extradition so that he might serve his sentence inColombia in accordance with the Treaty between Great Britain and Colombia for the Mutual Surrender of Fugitive Criminals (“theTreaty”) signed on October 27, 1888 and which came into force in Canada on December 16, 1899.[2] This treaty was entered into byGreat Britain before Canada acquired full sovereignty through the Statute of Westminster in December 1931.[3] Canada remains boundby this treaty unless it is formally repudiated or otherwise terminated. [29] Pursuant to the terms of s. 43 of the Extradition Act,[4] the applicant made submissions to the Minister with the hope ofconvincing him to refuse his surrender.

He filed numerous affidavits and letters of support, legal opinions setting out the unjust nature ofthe trial that took place as well as diverse documents stating the serious risk of judicial error and the presence of corruption in Colombia.I will come back to this. [30] His oldest daughter also filed a sworn statement in which she claims to have been in the victim’s presence throughout theevening and night in question, and in which she laments not having been authorized by the judge to testify at the trial.

She was then 15years old. [31] The applicant also sent the Minister a psychological evaluation concluding that he presented no sexual troubles or deviance andno particular psychological needs. [32] He maintains his innocence to this day.

THE MINISTER’S DECISION [33] In a decision dated July 15, 2015, the Minister ordered and gave reasons for the applicant’s surrender. [34] He analysed the arguments raised by the applicant in his submission and asked whether it would be unjust or oppressive and/orcontrary to the principles of fundamental justice (s. 7 of the Charter) to order the surrender. [35] After having reviewed the timeline of events and the context leading to the request for extradition, he cited the decision Canadav.

Schmidt[5] to highlight that in the presence of a treaty, he is required to begin with the notion that the criminal justice system of therequesting state is fundamentally fair. He evaluated all of the applicant’s submissions in light of this premise.

He wrote: I further note that, when there is an extradition treaty in place, I must begin with the notion that the executive has already determined thatthe extradition partner’s criminal justice system is fundamentally fair (Canada v Schmidt, (1987) (SCC), 1 SCR 500).The assumption that a state will treat the person sought for extradition fairly may only be successfully challenged by clear andconvincing evidence to the contrary (Argentina v Mellino, (1987) (SCC), 1 SCR 536). [36] He indicated that he had requested that Colombia clarify what rights are accorded to accused and convicted persons and that hewas satisfied with the response he received.

He highlighted that among these rights were the right to a fair and just trial before animpartial tribunal, to the presumption of innocence, the right to counsel and the right to be tried without unreasonable delay as well as theright to challenge evidence and the right to protection against self-incrimination. [37] From the file before of him, he concluded that the applicant had enjoyed these rights and that the first instance and appealdecisions demonstrated that he had an opportunity to adduce evidence and to contest the evidence put forward by the prosecution. [38] His reading of the reasons provided in the trial judge’s decision led him to conclude that the judge had fully analysed theevidence and that nothing suggested she was not impartial. [39] He emphasized that he did not have authority to review her conclusions, including her conclusions with respect to the credibilityof the witnesses. [40] He also dismissed the applicant’s complaint that the judge had not allowed him to call his daughter to testify, despite the factthat she was a crucial witness for his defense and that the cleaning lady, who had been in the house and near the victim, had also notbeen called to testify.

In his view, these arguments were reviewable by the Colombian appeal court, which had rejected them. [41] He recognized that corruption exists in Colombia, as demonstrated by the numerous documents filed by the applicant, but added

that nothing presented to him suggested there had been any corruption in this particular case. [ 42 ] In the absence of such evidence, he felt entitled to assume that the judicial proceedings had been conducted fairly and that the applicant would be treated fairly if surrendered. He wrote: Although I recognize that corruption has been found to exist in Colombia, there is nothing before me to suggest that any corruption was involved in Colombia’s investigation and prosecution of Mr. Ruiz-Gomez.

There is no information to suggest that the trial or appeal courts in Columbia acted in any arbitrary, improper or corrupt manner, nor do you make this specific assertion. In the absence of any such evidence, I am entitled to assume that Mr. Ruiz-Gomez’s court proceedings were conducted fairly and that he will be treated fairly if surrendered to face his sentence in Colombia. … Moreover, I note that Colombia has made significant efforts in addressing the issue of corruption.

In one of the supporting documents that you provided to me, the Anti-Corruption Resource Centre’s report “ Colombia: Overview of Corruption and Anti-Corruption ”, it is stated that while Columbia received its worst score in the last decade in Transparency International’s 2012 Corruption Perception Index, in that same decade, the government made efforts to improve the rule of law. … While Columbia is still facing structural corruption challenges, it would appear that the government is cognizant of the issues and is actively trying to build a robust sociopolitical framework devoid of corruption and other vulnerabilities.

In all of the circumstances, I find that it would not be unjust or oppressive or shocking to the Canadian conscience to surrender Mr. Ruiz- Gomez to Colombia, notwithstanding the country’s ongoing problems with corruption. As I noted previously, there is nothing in the record before me to suggest that Mr. Ruiz-Gomez was personally subjected to acts of corruption or other human rights abuses during the criminal investigation in Columbia, or the trial and appellate court proceedings that followed. Nor is there information before me to suggest that Mr.

Ruiz-Gomez will be subjected to any inequities in the event that he is surrendered to Colombia. [Emphasis added] ANALYSIS [ 43 ] I begin by recalling that, given the political dimensions of such a decision, the Court must show considerable deference in analysing the Minister’s order for surrender. [6] [ 44 ] In Lake v.

Canada (Minister of Justice) , LeBel J. reiterated the appropriate stance that courts should adopted when seized with an application for judicial review of a ministerial decision in this context: [34] This Court has repeatedly affirmed that deference is owed to the Minister’s decision whether to order surrender once a fugitive has been committed for extradition. The issue in the case at bar concerns the standard to be applied in reviewing the Minister’s assessment of a fugitive’s Charter rights.

Reasonableness is the appropriate standard of review for the Minister’s decision, regardless of whether the fugitive argues that extradition would infringe his or her rights under the Charter . As is evident from this Court’s jurisprudence, to ensure compliance with the Charter in the extradition context, the Minister must balance competing considerations, and where many such considerations are concerned, the Minister has superior expertise.

The assertion that interference with the Minister’s decision will be limited to exceptional cases of “real substance” reflects the breadth of the Minister’s discretion; the decision should not be interfered with unless it is unreasonable ( Schmidt ) (for comments on the standards of correctness and reasonableness, see Dunsmuir v.

New Brunswick , [2008] 1 S.C.R. 190, 2008 SCC 9 ). … [37] Second, the Minister’s superior expertise in relation to Canada’s international obligations and foreign affairs remains relevant to the review of his assessment of a fugitive’s claim that extradition would violate his or her rights under the Charter . Whereas the Minister’s discretion must be exercised in accordance with the Charter , his assessment of any Charter infringement that could result from ordering an individual’s surrender is closely intertwined with his responsibility to ensure that Canada fulfills its international obligations.

The right of a Canadian citizen under s. 6(1) to remain in Canada is prima facie infringed by a decision to order that citizen’s surrender for extradition, but the infringement can generally be justified under s. 1, as this Court held in Cotroni . In determining whether the infringement is justified, the Minister is required to consider not only “the possibility of prosecution in Canada, but also the interest of the foreign State in prosecuting the fugitive on its own territory”: Kwok , at para. 93.

Accordingly, the Minister’s assessment of whether the infringement of s. 6(1) is justified rests largely on his decision whether Canada should defer to the interests of the requesting state. This is largely a political decision, not a legal one. The legal threshold for finding it unacceptable is evidence that the decision not to prosecute in Canada was made for improper or arbitrary motives.

This leaves room for considerable deference to the Minister’s conclusion that the infringement of s. 6(1) is justified. [38] Similarly, the Minister’s assessment of whether extradition accords with the fugitive’s s. 7 rights involves a balancing test. As I mentioned above, the Minister must weigh the factors for and against extradition to determine whether the circumstances are such that extradition would “shock the conscience”. In Suresh v.

Canada (Minister of Citizenship and Immigration) , [2002] 1 S.C.R. 3, 2002 SCC 1 ), this Court considered the appropriate standard of review for the Minister’s decision whether a refugee faces a substantial risk of torture upon deportation. In its view, the Minister’s decision in that context requires a fact-driven inquiry involving the weighing of various factors and possessing a “negligible legal dimension” (para. 39). Accordingly, the Court concluded that the Minister’s decision would be entitled to deference upon judicial review.

[39] Whether extradition would “shock the conscience” involves a similar type of inquiry. The Minister must balance the individual’scircumstances and the consequences of extradition against such factors as the seriousness of the offence for which extradition is soughtand the importance of meeting Canada’s international obligations and generally ensuring that Canada is not used as a safe haven byfugitives from justice. This inquiry will also often involve consideration of the protections that would be available to the fugitive and theconditions he or she would face in the requesting state.

To say, as does the appellant in the instant case, that the decision whethersurrender would unjustifiably infringe a fugitive’s Charter rights remains fundamentally a legal matter is to disregard the reality that allexecutive and administrative decisions involving one’s rights are in essence “legal matters”. Yet not all such decisions are subject tojudicial review on a correctness standard. The decision in issue in Suresh was clearly a legal matter.

The Court concluded that deferencewas owed to the Minister’s decision because it was based primarily on the Minister’s assessment of the facts; there was generally noneed for the court to re-weigh the facts. The same is true in the extradition context. … [41] Reasonableness does not require blind submission to the Minister’s assessment; however, the standard does entail more than onepossible conclusion. The reviewing court’s role is not to re-assess the relevant factors and substitute its own view. Rather, the court mustdetermine whether the Minister’s decision falls within a range of reasonable outcomes.

To apply this standard in the extradition context,a court must ask whether the Minister considered the relevant facts and reached a defensible conclusion based on those facts. I agree withLaskin J.A. that the Minister must, in reaching his decision, apply the correct legal test. The Minister’s conclusion will not be rational ordefensible if he has failed to carry out the proper analysis. If, however, the Minister has identified the proper test, the conclusion he hasreached in applying that test should be upheld by a reviewing court unless it is unreasonable.

This approach does not minimize theprotection afforded by the Charter. It merely reflects the fact that in the extradition context, the proper assessments under ss. 6(1) and 7involve primarily fact-based balancing tests.

Given the Minister’s expertise and his obligation to ensure that Canada complies with itsinternational commitments, he is in the best position to determine whether the factors weigh in favour of or against extradition.[7] [Emphasis added] [45] As broad as the Minister’s discretion may be, it still must be exercised in conformity with the Extradition Act and the CanadianCharter of Rights and Freedoms.[8] [46] At this stage, the Minister must determine “whether it is politically appropriate and not fundamentally unjust for Canada toextradite the person sought.”[9] Extradition will be fundamentally unjust if it would “shock the conscience”.[10] [47] The Minister must act in accordance with the principles of fundamental justice, which “refers to both substantive and proceduralrights”,[11] consider all the relevant facts and apply the correct legal test to reach a defensible conclusion.[12] [48] What of the case at hand? [49] The Minister’s decision is very detailed and reveals his assumption that he did not have authority to consider the quality of theColombian criminal justice system.

On the contrary, due to the existing treaty between the two countries, he considered himself bound tothe executive branch’s prior determination that the system was fundamentally fair.

In my opinion, his position is unequivocal: I further note that, when there is an extradition treaty in place, I must begin with the notion that the executive has already determined thatthe extradition partner’s criminal justice system is fundamentally fair (Canada v Schmidt, (1987) (SCC), 1 SCR 500).The assumption that a state will treat the person sought for extradition fairly may only be successfully challenged by clear andconvincing evidence to the contrary (Argentina v Melino, (1987) (SCC), 1 SCR 536). [Emphasis added] [50] Consequently, although he considered the evidence filed by the applicant, he did not do so in order to determine whether theevidence was sufficient to rebut the presumption and to allow him to consider the applicant’s submissions without assuming that theColombian criminal justice system is fundamentally fair.

Instead, he limited his consideration of the evidence to determining whether theapplicant had himself fallen victim to the ills that seem to affect the Colombian judicial system. [51] In my view, the Minister thus committed an important error resulting in a failure to fully exercise his jurisdiction. Given thisfailure to exercise jurisdiction, s. 57(7) of the Extradition Act and ss. 18.1(4)(

a) and (

f) of the Federal Courts Act justify the interventionof this Court and the return of the file to the acting Minister so that she may undertake a fresh evaluation and ask whether it isappropriate to apply the presumption. [52] I shall explain why. [53] As the Minister indicated, the courts have repeatedly affirmed that the existence of an extradition treaty gives rise to apresumption that an extradition partner’s criminal justice system is fair and just.

The presumption is strong, but contrary to what theMinister understood, these remarks do not apply to his role as established in the Extradition Act. [54] The presumption seems to have been raised for the first time in the decision Re Burley[13] which observed: The treaty is based on the assumption that each country should be trusted with the trial of offences committed within its jurisdiction. [55] More recently, the same principle was taken up by the Supreme Court in Canada v.

Schmidt.[14] This is the decision theMinister cited in support of his conclusion that he must begin with the notion that the Colombian criminal justice system isfundamentally fair. [56] However, a close reading of the decision reveals that the Supreme Court affirmed this principle with respect to the role of thecourts – not that of the Minister. The decision reads:

… In principle, as Hagarty J. long ago reminded us, the country seeking surrender under a treaty must be trusted with the trial of offences . It should not be forgotten either that the good faith of this country in honouring its international obligations is involved. … What has to be determined is whether or not, in the particular circumstances of the case, surrender of a fugitive for a trial offends against the basic demands of justice.

In determining that issue, the courts must begin with the notion that the executive must first have determined that the general system for the administration of justice in the foreign country sufficiently corresponds to our concepts of justice to warrant entering into the treaty in the first place , and must have recognized that it too has a duty to ensure that its actions comply with constitutional standards. Blind judicial deference to executive judgment cannot, of course, be expected .

The courts have the duty to uphold the Constitution. [15] [Emphasis added, internal references omitted] [ 57 ] The Supreme Court made similar remarks in Argentina v. Mellino , [16] a decision rendered the same year, referring again to the role of the courts albeit with respect to extradition judges. The Court wrote: The treaty places Canada under an obligation to surrender the fugitive for trial in the requesting country where such issues are to be considered.

The assumption that the requesting state will give the fugitive a fair trial according to its laws underlies the whole theory and practice of extradition and our courts have over many years made it abundantly clear that an extradition judge should not give effect to any suggestion that the proceedings are oppressive or that the fugitive will not be given a fair trial or give proper weight to the evidence. [17] [Emphasis added] [ 58 ] Justified though this presumption may be in setting the boundaries of judicial intervention, it does not bind the Minister in the same way.

At this stage, since the Minister’s decision is essentially a political one, the presumption may certainly, in theory, provide reasonable assurance that the justice system of the requesting state sufficiently corresponds to our concepts of justice. [ 59 ] That said, the rationale which justifies imposing this presumption upon the courts does not apply to the same extent to exercises of ministerial jurisdiction.

First, as the attorney general of Canada and a member of the executive, the Minister knows the motives which may have justified concluding an extradition treaty with a foreign country, as well as those for maintaining the treaty.

If necessary, the Minister also has all the resources necessary to determine whether the presumption is still founded, just as he is, at the following stage, in the best position to determine whether the various factors weigh in favour of or against extradition. [18] [ 60 ] Remember that dual considerations guide the Minister in fulfilling his duties: political considerations, certainly, but also the duty to uphold the rights enshrined in the Canadian Constitution. [ 61 ] As a result, it is my view that it is essential for the Minister to exercise this jurisdiction because any number of events may have occurred between the moment a treaty is signed and the moment the treaty is invoked to request the extradition of an individual. [ 62 ] The political regime in a foreign state may change radically, the rule of law may lose its force or a justice system may become dysfunctional.

It is equally conceivable that a coup d’état might bring on the demise of judicial institutions.

There are numerous reasons why a system considered fundamentally just at the time a treaty is concluded may no longer be so when the treaty is invoked to request the extradition of an individual or when a trial is held. [ 63 ] To this end, in this undoubtedly rare case, three cumulative factors might unsettle the presumption and, a priori , compel consideration of that possibility: the presence of a treaty more than a century old, the absence of a continuous and contemporaneous extradition relationship with the country in question, and evidence of generalized corruption affecting the judicial system in that country. [ 64 ] The fact that the treaty was signed in 1899 is not in itself negative, although there can be no question that the two societies have evolved.

Counsel for the Minister was unable to provide any information on the existence of previous extradition experiences and, without necessarily concluding that this case is a first, it is clear that surrender to Colombia is rare. The absence of this extradition experience complicates consideration of this evolution. The record of the requesting state being a relevant factor that the Minister may consider when evaluating the assurances given, [19] the paucity or absence of such a record may also be relevant when the Minister is deciding whether to apply the presumption.

In light of the information the applicant submitted to the Minister, this is a case where the Minister could question whether the presumption should apply and should have given reasons to this effect. [ 65 ] To paraphrase the Supreme Court in Canada v. Schmidt , just as the courts may not blindly defer to the executive, the Minister may not blindly apply the presumption simply by claiming that he is bound to do so. [ 66 ] We cannot ignore that Canada has requested extradition from Colombia at least once in R. c.

Nicolucci , [20] and that Colombia has been a designated state under the Mutual Legal Assistance in Criminal Matters Act since 1994. [21] Our two countries have thus maintained a certain relationship in criminal matters, as in other areas – notably commercial and environmental matters. It may be that all this serves to establish sufficient links between Canada and Colombia – I do not know – but, in my view the file submitted by the applicant was sufficiently robust that the Minister should have considered whether to apply the presumption.

He could not simply affirm his obligation to do so. [ 67 ] To say that the Minister must, like courts and judges, always presume that a foreign judicial system is fundamentally fair would, in my view, create an important risk that individuals will be extradited to states in which the criminal justice system which may have been fair and just at one time is no longer so. This could shock the conscience of Canadians.

[ 68 ] In seeking refuge in the presumption, the Minister erred and abandoned, in part, his duty to verify whether surrender was compatible with the Constitution. The question here is not whether his decision was reasonable, but rather whether an error was made in the analytical framework applied resulting in, due to his belief that he was bound by the presumption, a failure to exercise the discretion which he nevertheless possessed. [ 69 ] In this very particular case, it was unreasonable to require the applicant to demonstrate corruption in his own file.

The argument he makes is not that acts of corruption were committed in a system that otherwise corresponds to the Canadian concept of justice, but rather that as a result of widespread corruption the system does not correspond to this concept of justice. [ 70 ] While the Court has rejected the first argument many times, [22] it has rarely been called to consider the second.

The Supreme Court, for its part, recently recognized that the Minister may consider evidence concerning the general situation in a state: In the extradition context, when evaluating whether there is a substantial risk of torture or mistreatment in the requesting state, it logically follows that the Minister can consider evidence of the general human rights situation in that state, which may include reports from reputable government and non-governmental organizations. [23] [ 71 ] The problem of corruption the applicant raises is clearly of the second type because he claims the system as a whole is affected.

This type of argument raises difficulties not relevant to the first type. While it is possible to demonstrate that a judicial system has serious problems with corruption, often by way of reports from organizations specialising in the field, it is much more difficult for someone to demonstrate the impact of such corruption in a particular case.

Corruption is, by its very nature, covert and the resources necessary to demonstrate that it has influenced a particular decision are often beyond the reach of an individual. [ 72 ] This is why I do not believe that the Minister must systematically ask whether it is appropriate to apply the presumption.

The Minister is only obliged to do so when the party opposing surrender submits that the presumption should be set aside and offers compelling prima facie evidence to this effect. [ 73 ] As far as the Minister is concerned, the presumption is therefore rebuttable and he erred in holding that he could not set it aside but rather was bound to begin with the notion that the Colombian criminal justice system is fundamentally fair. [ 74 ] This is not a harmless error.

It may have tainted his consideration of the applicant’s evidence and submissions, and may also have influenced the burden he imposed on the applicant to provide clear and convincing evidence that the system had failed in his specific case. For the reasons outlined above, doing so was an error in this case. [ 75 ] After a reasonable assessment of the facts, the Minister may choose to set aside the presumption which may, in turn, lead him to re-evaluate the submissions before him without beginning with the notion that the foreign justice system is fundamentally fair.

The Minister is also free to impose a less onerous evidentiary burden for establishing that extradition would be unjust and would shock the conscience of Canadians by not necessarily requiring evidence that the system failed in a specific case. [ 76 ] This certainly would not be contrary to the Treaty itself which does not require surrender in all cases, but rather provides, at

Article III, that either government may, in its absolute discretion, refuse to deliver up its own subjects to the other government. [24] [ 77 ] Here, the applicant filed numerous documents to demonstrate deeply rooted corruption in the Colombian justice system. He filed two legal opinions setting this out in the course of addressing other matters.

He also filed numerous reports from a variety of organizations. [ 78 ] It is not the Court’s role to evaluate the probative value of these documents or the credibility of the organizations that produced them, except to confirm that the evidence submitted is, prima facie , sufficiently compelling that the Minister may consider it and determine whether it convinces her that there is reason to set aside the presumption that the Colombian justice system is fundamentally fair.

If necessary, the quality of her reasoning and inquiries will determine whether her conclusion is reasonable. [ 79 ] Had he proceeded thus, the previous Minister might have concluded that there was reason to set aside the presumption which, in turn, could have led him to evaluate the applicant’s submissions regarding the unfolding of his trial differently and to be less demanding with respect to the evidence he required. [ 80 ] The applicant pleads that his numerous submissions take on a different hue if the presumption is set aside: for example, the fact that the Colombian courts refused to allow his daughter to testify at his trial, a submission that the Minister considered insufficient to refuse his extradition.

In the applicant’s view, that conclusion may have been different had the Minister considered the submission without beginning with the notion that the Colombian system is just because, in some circumstances, this refusal could violate the right to make full answer and defense. [ 81 ] I am in no way suggesting that the Minister must ipso facto refuse surrender when of the view that the evidence submitted is sufficient to set aside the presumption; rather I suggest that the Minister should make a decision only after a complete analysis of all the circumstances which, here, required a preliminary determination of whether it was appropriate to apply the presumption that the criminal justice system of the requesting state is fundamentally fair. [ 82 ] In such cases, the Minister must determine whether surrender would be unjust or oppressive in light of all the circumstances, including the weaknesses or failings of the justice system of the requesting state. [25] The courts may then exercise their powers of review if necessary, and in so doing will benefit from the full analysis and conclusions of the Minister. [ 83 ] In these circumstances, I therefor propose that the file be returned to the Minister so that she may reconsider the applicant’s submissions and the documents he filed, determine whether to set aside the presumption that the Colombian criminal justice system is fundamentally fair and, depending on her conclusion, consider the applicant’s submissions in light of that determination.

MARIE-JOSÉE HOGUE, J.A.