2011 QCCA 825, 2011 QCCA 825

Edwards c. Canada (Minister of Justice) 2011 QCCA 825 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004572-101 500-10-004573-109 DATE: MAY 4, 2011 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. FRANÇOIS PELLETIER, J.A. PAUL VÉZINA, J.A. CHAD EDWARDS and ANSON EDWARDS APPLICANTS – Interested persons v.

MINISTER OF JUSTICE OF CANADA RESPONDENT JUDGMENT [ 1 ] The Applicants Chad Edwards (500-10-004573-109) and Anson Edwards (500-10-004572-101) seek judicial review of the Minister of Justice's decision, dated January 11, 2010, ordering their immediate surrender on the offence for which extradition is sought by the United States of America. [ 2 ] For the reasons that follow, the Court dismisses the Applicants' Application for judicial review.

Overview [ 3 ] On July 17, 2008, the Applicants were indicted on a charge of conspiracy to obstruct, delay, and affect commerce and the movement of articles and commodities in such commerce, by robbery, in violation of Title 18, United States Code,

Section 1951, [1] by a grand jury of the Northern District of New York. [ 4 ] On December 12, 2008, the Applicants were arrested pursuant to

Section 13 of the Extradition Act . [2] [ 5 ] By diplomatic note dated February 9, 2009, the United States of America requested the extradition of the Applicants to stand trial in the District Court for the Northern District of New York on the following offence: Conspiracy to obstruct, delay and affect commerce and the movement of articles and commodities in such commerce, by robbery, in violation of Title 18, United States Code,

Section 1951. [ 6 ] On February 26, 2009, an Authority to proceed was issued on behalf of the Minister authorizing extradition proceedings against the Applicants on the Canadian offence of conspiracy to commit robbery, contrary to Articles 343 , 344 , and 465 of the Criminal Code . [ 7 ] On June 4, 2009, following an extradition hearing, the Applicants were committed into custody to await the Minister's decision on whether to order their surrender to the United States of America on the above-mentioned charge by Décarie J. of the Superior Court of Quebec. [ 8 ] The Applicants did not appeal the order of committal. [ 9 ] On September 8, 2009, the Applicants, through their attorney of record, made submissions to the Minister arguing that the double criminality requirement had not been met insofar as the American authorities were not seeking their extradition on the offences of robbery or conspiracy to commit robbery, but rather on a violation of the Hobbs Act , for which there is no Canadian equivalent. [ 10 ] On January 11, 2010, the Applicants received notice of the Minister's decision to order their surrender to the United States of America on the American offence for which their extradition is sought.

Judicial Review

[ 11 ] The Applicants seek judicial review of the Minister's decision on one ground only: The Minister erred in law by concluding that robbery and conspiracy to commit robbery are "in essence" equivalent offences to a contravention of the Hobbs Act , and thereby failed to respect the requirement of double criminality enshrined in Section 3(1)

b) of the Extradition Act . Analysis [ 12 ] The Applicants do not contest the fact that a robbery was committed. However, they do argue that the United States is not requesting this extradition for robbery (or conspiracy to committ robbery), but rather for having violated the Hobbs Act . In other words, robbery was the means by which the Hobbs Act was violated, not the crime for which their extradition is sought. The requirement of double criminality enshrined in section 3(1)

b) of the Extradition Act is not met inasmuch as in Canada there is not an equivalent crime to the Hobbs Act crime in the United States. [ 13 ] The argument is ill-founded. [ 14 ] The full text of the indictment as decided by the Grand Jury for the Northern District of New York reads as follows: 2. On or about May 12, 2008, and continuing thereafter up to and including at least May 14, 2008, in St. Lawrence County, in the Northern District of New York, the Defendants , […] did conspire with others known and unknown to the Grand Jury to obstruct, delay, and affect commerce as that term is defined in Title 18, United States Code,

Section 1951, and the movement of articles and commodities in such commerce, by robbery as that term is defined in Title 18, United States Code,

Section 1951, in that the Defendants […] did unlawfully conspire to take and obtain personal property consisting of a large quantity of Canadian-grown marijuana and United States currency from the residence of Daniel Simonds against his will by means of actual and threatened force , violence, and fear of injury, immediate and future, to his person and to property in his custody and possession, that is, the Defendants, […] along with others known and unknown to the Grand Jury, planned to, and some of them later went to, Daniel Simonds' residence at 649 Porter Lynch Road, Stockholm, New York, in St.

Lawrence County, to rob Simonds of his marijuana and money by use of physical force , and while at the residence they did beat and shoot Simonds before fleeing the scene, and Simonds thereafter died. All in violation of Title 18, United States Code,

Section 1951. (Emphasis added) [ 15 ]

Section 3 of the Extradition Act reads as follows: 3.

(1) A person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner for the purpose of prosecuting the person or imposing a sentence on — or enforcing a sentence imposed on — the person if (

a) subject to a relevant extradition agreement, the offence in respect of which the extradition is requested is punishable by the extradition partner, by imprisoning or otherwise depriving the person of their liberty for a maximum term of two years or more, or by a more severe punishment; and (

b) the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada, (

i) in the case of a request based on a specific agreement, by imprisonment for a maximum term of five years or more, or by a more severe punishment, and (ii) in any other case, by imprisonment for a maximum term of two years or more, or by a more severe punishment, subject to a relevant extradition agreement.

(2) For greater certainty, it is not relevant whether the conduct referred to in subsection (1) is named, defined or characterized by the extradition partner in the same way as it is in Canada.

(3) Subject to a relevant extradition agreement, the extradition of a person who has been sentenced to imprisonment or another deprivation of liberty may only be granted if the portion of the term remaining is at least six months long or a more severe punishment remains to be carried out. [ 16 ] In Canada (Justice) v.

Fischbacher , [2009] 3 S.C.R. 170, 2009 SCC 46 , Justice Charron, writing for the majority, began her analysis of the questions in issue with some comments about the principle of double criminality, a fundamental principle of the extradition process, at paragraphs 26-29: [26] Double criminality requires that the conduct forming the basis of the extradition request be criminal under the law of both the requesting and the requested countries.

The purpose of double criminality is to safeguard the liberty of an individual whose extradition is sought by ensuring that he or she is not surrendered to face prosecution in another country for conduct that would not amount to a criminal offence in the country of refuge. This principle is internationally recognized as central to extradition law.

Double criminality is a clause in all of Canada’s extradition treaties (see, e.g., Articles 2 and 10 of the Treaty ) and is codified in s. 3(1) of the Act: 3. (1) [General principle] A person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner for the purpose of prosecuting the person or imposing a sentence on — or enforcing a sentence imposed on — the person if (

a) subject to a relevant extradition agreement, the offence in respect of which the extradition is requested is punishable by the extradition partner, by imprisoning or otherwise depriving the person of their liberty for a maximum term of two years or more, or by a

more severe punishment; and (

b) the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada, (

i) in the case of a request based on a specific agreement, by imprisonment for a maximum term of five years or more, or by a more severe punishment, and (ii) in any other case, by imprisonment for a maximum term of two years or more, or by a more severe punishment, subject to a relevant extradition agreement. [27] As the term implies, double criminality has two components, one foreign and one domestic. Section 3(1)(

a) codifies the foreign aspect of double criminality by requiring that the offence upon which extradition is requested be criminal in the requesting state and carry the specified penalty. Paragraph (

b) of s. 3(1) describes the domestic aspect of double criminality, which requires that the conduct underlying the foreign offence amount to a criminal offence under Canadian law with the specified penalty. Both elements must be satisfied before double criminality is made out. [28] In theory, double criminality may be satisfied on one of two possible approaches: a conduct-based or an offence-based test. In Norris v.

Government of the United States of America , [2008] UKHL 16, [2008] 2 All E.R. 1103 , the House of Lords considered these methodologies for interpreting extradition legislation (at para. 65): [I]t is useful to stand back from the detail and recognise the essential choice that the legislature makes in deciding just what the double criminality principle requires. It is possible to define the crimes for which extradition is to be sought and ordered (extradition crimes) in terms either of conduct or of the elements of the foreign offence. That is the fundamental choice.

The court can be required to make the comparison and to look for the necessary correspondence either between the offence abroad (for which the accused’s extradition is sought) and an offence here, or between the conduct alleged against the accused abroad and an offence here. For convenience these may be called respectively the offence test and the conduct test.

It need hardly be pointed out that if the offence test is adopted the requested state will invariably have to examine the legal ingredients of the foreign offence to ensure that there is no mismatch between it and the supposedly corresponding domestic offence. [29] Consistent with the vast majority of international practice, Canada has adopted the conduct-based approach to determining double criminality , codified in s. 3(2) of the Act: (2) [Conduct determinative] For greater certainty, it is not relevant whether the conduct referred to in subsection (1) is named, defined or characterized by the extradition partner in the same way as it is in Canada.

As a result, it is not necessary that the Canadian offence described in the ATP or the committal order “match” the foreign offence for which the person is sought or surrendered in name or in terms of its constituent elements; it is “the essence of the offence” that is important on the conduct-based approach : A. W.

La Forest, La Forest’s Extradition to and from Canada (3rd ed. 1991), at p. 69. (Emphasis added) [ 17 ] The principle of double criminality thus requires that the conduct upon which the extradition request is made be criminal in both the requesting and requested countries, the idea being to ensure that the individual whose extradition is sought is not surrendered to face prosecution in another country for conduct that would not amount to a criminal offence in Canada. [ 18 ] There is no doubt here that the Applicants' conduct, as described in the indictment and in the Record of the case filed in support of the extradition request, amounts to a criminal offence both in the United States and in Canada. [ 19 ] Canada's approach to double criminality is, as stated in the Fishbaker decision, conduct-based as opposed to offence-based " [it] is not necessary that the Canadian offence (…) 'match' the foreign offence for which the person is sought or surrendered in name or in terms of its constituent elements; it is 'the essence of the offence' that is important (…)" (par. 29). [ 20 ] The Applicants argue that the American offence for which they were indicted by the Grand Jury is different "in essence" from the Canadian offence identified by the Minister in the Authority to proceed.

They astutely read the American offence as being that of having obstructed, delayed and affected commerce (…) and the movement of articles and commodities in such a commerce, with no reference to the words "by robbery" , and they argue that this offence has no Canadian equivalent. In other words, robbery is not the offence per se , but merely the means by which the offence is committed. [ 21 ] The argument is based on a very narrow, and inappropriate, reading of the American offence. Robbery (or conspiracy to commit robbery) is part of the offence.

In fact, as appears from the Diplomatic Note referred to above, the offence is "also referred to as a conspiracy to commit a Hobbs Act robbery". The Hobbs Act is a federal law which criminalizes robbery (and extortion) that obstructs, delays or affects commerce.

It is wrong to say the American offence of obstructing, delaying or affecting commerce by robbery (or conspiracy to commit robbery) is different "in essence" from the Canadian offence of robbery (or conspiracy to commit robbery). [ 22 ] It is not necessary for one offence to match the other in name or in terms of its constituent elements, as explained by Justice Charron in Fischbacher , at paragraphs 49-55 : [49] With respect, it is my view that to the extent that Reumayr (2003) and its offspring stand for the principle that the Minister is required to “align” the Canadian and foreign offences by ensuring that the evidence adduced at an extradition hearing supports each element of the foreign offence upon which surrender is ordered, these decisions do not represent the law in Canada.

The “misalignment” test adopted by the Court of Appeal in this case is incompatible with three key components of extradition law: conduct-based double criminality; the foundational principle of comity; and the carefully circumscribed role assigned to the extradition judge in the Act. I will explain.

[50] The “misalignment” test is functionally inconsistent with the conduct-based approach to double criminality. By requiring theMinister to assess the parity between the elements of the Canadian offence and the elements of the foreign offence before surrenderingthe person sought for the latter, the “misalignment” test effectively amounts to adding an offence-based test for double criminality at thefinal stage of the extradition process.

This approach is inconsistent with the provisions of the Act and Treaty which clearly specify thatconduct — not symmetry between the elements of the Canadian and foreign offences — is determinative of double criminality. [51] By requiring the Minister to evaluate whether the requested offence is “proper” in light of the foreign evidence, the “misalignment”test amounts to a second-guessing of the foreign state’s assessment of its own law. This sends the message that Canada is suspicious ofthe ability of the foreign state to assess the evidence against its own law and decide on the appropriate offence.

The “misalignment” testis thus incompatible with the principles of “reciprocity, comity and respect for differences in other jurisdictions” that are foundational tothe effective operation of the extradition process: Kindler v. Canada (Minister of Justice), (SCC), [1991] 2 S.C.R. 779,at p. 844. [52] Comity demands that the requested state maintain a limited role in the extradition process to prevent the proceeding from becominga trial on the merits.

The fundamental tension between comity and any assessment by the Canadian judiciary or executive of the law ofthe foreign state has been enunciated on numerous occasions by this Court in the context of defining the mandate of the extradition judgeunder the Act. In Argentina v.

Mellino, (SCC), [1987] 1 S.C.R. 536, at p. 551, this Court explained as follows: At all events, the assumption by a Canadian court of responsibility for supervising the conduct of the diplomatic and prosecutorialofficials of a foreign state strikes me as being in fundamental conflict with the principle of comity on which extradition is based. [Emphasis added.] See also, e.g., United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 99, and McVey, at pp. 508-10.

While thecomments in Mellino were made in respect of the judicial phase of extradition proceedings, their essential message is equally applicableto the circumstances of the present appeal: it is not for the Canadian authorities, judicial or executive, to evaluate a foreign state’sdecision to prosecute the person sought for a given offence, nor to assess the sufficiency of the evidence adduced at the committalhearing against the elements of the foreign offence.

To do so offends the underlying principle of comity and risks undermining thefoundation of effective extradition practice. [53] Finally, the “misalignment” test adopted by the Court of Appeal is incompatible with the role of the extradition judge defined by s.29 of the Act.

If the Minister were required to compare the elements of the foreign offence against the evidence adduced at theextradition hearing to ensure that the two are “aligned”, the requesting state would have to lead evidence on every element of the foreignoffence in the context of the extradition hearing before the Minister could surrender for the requested offence.

This would fundamentallychange the nature of the extradition judge’s inquiry under s. 29 of the Act, which specifies that the judge is to consider only the domesticside of double criminality, looking for evidence in respect of each element of the Canadian offence listed in the ATP. [54] That the Minister is not to assess whether the evidence adduced at a committal hearing satisfies the elements of the foreign offenceshould not be understood to mean that the Minister has no scope to consider foreign law in making his determination on the question ofsurrender.

It is well established that in exceptional circumstances, the panoply of relevant factors that inform a surrender decision mayinclude a significant discrepancy between the jeopardy faced by the person sought in the requesting state and that which he would face ifconvicted in Canada in respect of the same conduct: see, e.g., Ross v. United States of America (1994), (BC CA), 93C.C.C. (3d) 500 (B.C.C.A.), per Taylor J.A., aff’d (SCC), [1996] 1 S.C.R. 469.

In these circumstances, the Minister isentitled to include the foreign crime and its attendant penalty as one of many factors under consideration at the surrender stage. In doingso, however, the Minister simply takes account of the potential consequences to the person sought under the foreign law, as opposed tomaking his own assessment of how the foreign law should apply to the case at issue.

Accordingly, the Minister remains within theambit of his proper role under the Act, and the principle of comity is not undermined. [55] Ultimately, the reasonableness of the Minister’s surrender decision does not turn on whether the elements of the foreign offence“align” with the evidence adduced by the requesting state at the committal hearing.

The reasonableness of the decision must be assessedwith regard to all the relevant circumstances and the applicable provisions of the Act. (Emphasis added) [23] The Minister's decision to order the Applicants' surrender to the United States of America on the American offence for whichtheir extradition is sought is a reasonable one with which the Court will not interfere. [24] FOR THESE REASONS, THE COURT: [25] DISMISSES the Applicants' application for judicial review of the Minister of Justice's decision dated January 11, 2010. JACQUES CHAMBERLAND, J.A. FRANÇOIS PELLETIER, J.A.

PAUL VÉZINA, J.A. Mtre Jeffrey K. Boro BORO POLNICKY LIGHTER For Applicants Mtre Christian Jarry Joyal Leblanc Public Prosecution Service of Canada Attorney For Respondent Date of hearing: April 7, 2011