2014 QCCA 681, 2014 QCCA 681

M.M. c. Canada (Minister of Justice) (United States of America) 2014 QCCA 681 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005343-130 MINUTES OF THE HEARING DATE: April 4, 2014 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. FRANÇOIS DOYON, J.A. JULIE DUTIL, J.A. PETITIONER ATTORNEY(

S) M. M. A.K.A. M. M. M. Mtre Julius Grey Mtre Cornelia Herta Zvezdin Grey & Casgrain s.e.n.c. Mtre Clemente Monterosso Clément Monterosso Avocat RESPONDENT ATTORNEY(

S) MINISTER OF JUSTICE CANADA on behalf of THE UNITED STATES OF AMERICA Mtre Constantina Antonopoulos Public Prosecution Service of Canada Attorney

On appeal form a decision of the Minister of Justice of Canada, Rob Nicholson, rendered on November 28, 2012. NATURE OF THE APPEAL : Extradition Clerk: Marcelle Desmarais Courtroom: Antonio-Lamer HEARING Continuation of March 31 st , 2014, hearing. Judgment – see page 3. Marcelle Desmarais Clerk BY THE COURT: JUDGMENT

[ 1 ] This is a motion for judicial review of a decision rendered on November 28, 2012, by the Honourable Rob Nicholson, Minister of Justice, ordering the surrender of the Petitioner to the United States of America. [ 2 ] The Requesting State seeks the extradition of the Petitioner to face charges in the State of Georgia for Interstate Interference with Custody, in violation of

Section 16-5-45(c)(1) of the Official Code of Georgia Annotated . [ 3 ] The Petitioner raises the following arguments in support of her motion: 1) The Minister of Justice erred in law and in fact and failed to consider properly the superior interest of her children. 2) The Minister of Justice failed to consider and properly assess her constitutional right to remain in Canada, all in the superior interest of her minor children. 3) The Minister of Justice failed to consider the whole of evidence submitted and to properly consider the will of the minor children who alleged abuses from their father. FACTS [ 4 ] R.

P. and the Petitioner were married for six years. They obtained a divorce on September 6, 2001. They have three children, born in 1996, 2000 and 2001. [ 5 ] On June 19, 2008, a Georgia court awarded sole custody of the children to the father, with no visitation rights or any further contact with the children for the Petitioner. The Court found that the Petitioner had chronic substance abuse problems and that she had previously fled the jurisdiction with her children in violation of a temporary custody order. [ 6 ] On October 30, 2010, the father reported his children missing.

The children testified that they ran away on account of their father's ill treatment and violence. They lived in an abandoned house with friends for more than a week before contacting their mother, in November of 2010. [ 7 ] On November 9, 2010, the Petitioner was intercepted by the police for speeding and driving under the influence with her three children present in the car.

As the arresting officer was unaware that the children were listed as missing, he requested a relative of the Petitioner to pick them up. [ 8 ] According to the Petitioner, she was physically assaulted by the children’s father when she refused to tell him where the children were hiding. Consequently, she decided to come to Quebec where she was born and where her mother resides. [ 9 ] In the middle of December 2010, Georgia police tracked the missing children in a battered women's shelter in the Province of Quebec.

Upon confirmation of the presence of Petitioner and the three children by the RCMP, an arrest warrant was issued on December 23, 2010 and the Petitioner was arrested on that date. The children were taken in by the Quebec Youth Protection Director, moved to a foster family and returned to the Petitioner on June 8, 2011, two days after her judicial interim release. [ 10 ] The Requesting State subsequently made a formal request for extradition and on February 23, 2011, an Authority to Proceed was issued listing the following Canadian offences: 1.

Abduction in contravention of a custody order, contrary to s. 282 of the Criminal Code ; 2. Abduction of a person under sixteen, contrary to s. 280 of the Criminal Code. [ 11 ] Petitioner’s committal was ordered on June 15, 2012 by this Court [1] when it allowed an appeal from a judgment rendered by the Superior Court on August 10, 2011. [2] THE MINISTER’S DECISION [ 12 ] On July 13, 2012, the Petitioner made submissions to the Minister of Justice. Here are her main arguments: 1. Her extradition should be denied because her surrender would be unjust and oppressive. 2.

The interests of the children must be given serious consideration. 3. It is in the best interests of the Petitioner’s children that she stays in Canada. 4.

The evidence shows that the Petitioner has a very strong defence to the charges laid against her, based on s. 285 of the Criminal Code ( the abduction was necessary to protect the young person from danger of imminent harm ). [ 13 ] The Minister recognized that the decision-maker must consider children’s best interest as an important factor, but stated: Persons accused of crimes in Canada cannot escape criminal prosecution only on the basis that a prosecution against them may have negative consequences on their spouses, children or other family members.

Canadian courts have the power to lawfully separate an accused person from their child when judicial interim release is refused or when a parent is convicted of a criminal offence and sentenced to a period of incarceration. [ 14 ] He added:

The best interests of Ms. M.’s children are by no means clear. On June 19, 2008, the Superior Court of Cobb County, State of Georgia, awarded the children’s father, Mr. P., sole custody of the children and denied Ms. M. visitation rights on the basis that the children had previously been removed from her home as a result of her chronic substance abuse problems. I further note that according to the Record of the Case, Ms.

M. was arrested in Georgia on November 9, 2010, for driving under the influence of alcohol while her children were passengers in her car. [ 15 ] He concluded on this issue: Although it is unfortunate that Ms. M.’s children, who have already faced so much upheaval, will be separated from their mother, I am satisfied that it would not be unjust or oppressive, or “shock the conscience” to surrender Ms. M. to face trial in the United States in all of the circumstances.

It is an important principle of public policy that parents not be allowed to abduct their children in violation of custody orders or use international orders to separate their children from their custodial parent. Ms. M. will have the opportunity to raise her personal circumstances before the courts in the United States. [ 16 ] As to the defence based on s. 285 of the Criminal Code , citing United States v. Yang , [3] Canada v. Schmidt [4] and Argentina v. Mellino , [5] he opined that, even if the Petitioner is not afforded a defence analogous to this

section in Georgia, this does not lead to a conclusion that she will not have a fair trial. He noted as well that consideration of defences should be left to the foreign trial court and that she may raise the defence of coercion before a Georgia court. ANALYSIS [ 17 ] The applicable standard of review is that of reasonableness and a reviewing court’s role is to determine whether the Minister’s decision falls within the range of reasonable outcomes . [ 18 ] In Lake v.

Canada (Minister of Justice) , [6] LeBel, J. described, at par. 41, the degree of scrutiny applicable to a judicial review of the Minister’s decision: [41] Reasonableness does not require blind submission to the Minister’s assessment; however, the standard does entail more than one possible conclusion. The reviewing court’s role is not to re-assess the relevant factors and substitute its own view. Rather, the court must determine 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. [ 19 ] In other words, courts owe due deference to the Minister’s decision and his expertise in relation to Canada’s international obligations must be taken into account. [ 20 ] In Savu c.

Canada (Ministre de la Justice) , [7] Jacques, J. wrote: [51] La norme de contrôle applicable à la Cour d’appel, lorsqu’elle doit statuer sur une demande de révision judiciaire d’une décision du ministre portant sur une extradition, est exigeante et laisse peu de place à intervention. [53] Dans l’exercice de son pouvoir de contrôle, la Cour doit être particulièrement prudente et réservée, afin d’éviter toute ingérence indue dans un domaine où l’exécutif est bien placé pour prendre ce genre de décision. [55] La norme de la raisonnabilité s’applique donc en l’espèce.

Ainsi, il n’appartient pas à cette Cour de substituer sa propre appréciation à celle du ministre qui a procédé à une analyse des considérations pertinentes qu’il lui revenait de plein droit d’évaluer.

La Cour doit plutôt examiner si le ministre a appliqué les critères juridiques appropriés aux questions soumises et si sa décision se situe dans le cadre de solutions raisonnablement acceptables. [ 21 ] A court of appeal cannot overturn the Minister’s decision solely because of negative consequences it might have on the children of the person sought, unless such consequences render the decision unjust, unacceptable or shocking to the conscience of Canadians.

Jacques, J. addressed this issue in Savu : [97] En l’espèce, la décision du ministre vise avant tout le demandeur, bien qu’elle emporte aussi des effets incidents sur ses enfants. [98] Même s’il s’agit d’une considération pertinente, le seul fait d’avoir des enfants ne constitue pas en soi un motif de refuser l’extradition demandée par un pays lié au Canada par un traité.

Si tel était le cas, ce seul fait d’avoir des enfants empêcherait toute extradition, indépendamment de sa justification. [99] Les conséquences sur les enfants du demandeur ne peuvent empêcher son extradition que si elles la rendent injuste ou tyrannique, choquante pour la conscience ou simplement inacceptable, et ce, compte tenu de tous les facteurs, incluant ceux qui penchent en faveur de l’extradition. [ 22 ] It has been long established that Canadian courts have the power to separate a parent from his or her child when, for instance, the parent is convicted of a criminal offence and sentenced to a period of incarceration.

Similarly, the Petitioner cannot escape criminal prosecution simply because of the consequences it would have on her children. [ 23 ] Indeed, mere mention of the children’s interests is not sufficient.

However, in his decision, and contrary to the Petitioner arguments, the Minister did not only mention it; he took it into consideration, evaluated all the relevant circumstances, including the Petitioner’s submissions, and gave proper weight to the best interests of the children. [ 24 ] He balanced the Petitioner’s personal circumstances and the consequences of extradition for her and her children against such factors as the importance for Canada to meet its international obligations and that Canada not be used as a safe haven by fugitives.

[ 25 ] Considering all the circumstances, the surrender of the Petitioner to the United States of America is neither unjust nor oppressive, nor would it result in a violation of her constitutional rights.

It is the Minister who is charged with the task of evaluating the facts that are put before him and it would be inappropriate for this Court to substitute its own evaluation of the facts for that of the Minister, especially when he concludes that the children’s best interests are by no means clear in view of the Petitioner’s past behaviour. [ 26 ] Finally, the Petitioner argues that the Minister should have considered the judgment rendered by the Superior Court, more specifically its findings of fact related to the situation of the children, even though it was quashed in appeal. This argument is not convincing.

First, as mentioned by this Court in its judgment, the Superior Court judge “relied on passages from reports including hearsay evidence, and she referred to the statements of witnesses that had yet to be cross-examined”. Second, counsel for the Petitioner did refer to this judgment and these issues in her own submissions and the Minister carefully analyzed them. [ 27 ] In short, the Minister’s decision is reasonable and contains no reviewable error that would justify the intervention of this Court. FOR THESE REASONS, THE COURT: [ 28 ] DISMISSES the motion for judicial review. FRANCE THIBAULT, J.A.

FRANÇOIS DOYON, J.A. JULIE DUTIL, J.A.