2013 QCCA 1001, 2013 QCCA 1001

Doyle Fowler c. Canada (Minister of Justice) 2013 QCCA 1001 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N o : 500-10-005142-128 (500-36-005044-097) PROCÈS-VERBAL D'AUDIENCE DATE: 14 mai 2013 CORAM : LES HONORABLES FRANCE THIBAULT, J.C.A PIERRE J. DALPHOND, J.C.A JACQUES R. FOURNIER, J.C.A.

APPELANT AVOCATS FRANCIS DOYLE FOWLER Me Véronique Courtecuisse VÉRONIQUE COURTECUISSE, AVOCATE Me Patrick Cozannet PATRICK COZANNET, AVOCAT INTIMÉ AVOCATE MINISTRE DE LA JUSTICE DU CANADA Me Constantina Antonopoulos MINISTRE DE LA JUSTICE DU CANADA En appel d'une révision judiciaire de la décision du ministre rendue le 25 novembre 2009 NATURE DE L'APPEL: Extradition Greffière de l'audience : Elena Captari Salle: Pierre-Basile-Mignault

AUDITION 9 h 40 : Début de l'audience. 9 h 40 : Argumentation de Me Courtecuisse. 10 h 11 : Argumentation de Me Antonopoulos. 10 h 14 : Intervention de Me Courtecuisse. 10 h 14 : Suite de l'argumentation de Me Antonopoulos. 10 h 20 : Réplique de Me Courtecuisse. 10 h 22 : Suspension de l'audience. 10 h 28 : Reprise de l'audience. 10 h 28 : Remarque de Me Courtecuisse. 10 h 29 : PAR LA COUR : Arrêt – voir page suivante. 10 h 29 : Fin de l'audience. Elena Captari Greffière de l'audience PAR LA COUR ARRÊT [ 1 ] Pour des motifs à être déposés dans les jours à venir, l’appel est rejeté. FRANCE THIBAULT, J.C.A PIERRE J. DALPHOND, J.C.A

JACQUES R. FOURNIER, J.C.A. COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005142-128 DATE OF JUDGMENT : MAY 14, 2013 DATE OF FILING OF REASONS FOR JUDGMENT: JUNE 4 th , 2013 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. PIERRE J. DALPHOND, J.A. JACQUES R. FOURNIER, J.A. FRANCIS DOYLE FOWLER APPLICANT – interest person v. MINISTER OF JUSTICE OF CANADA RESPONDENT – decision maker REASONS FOR JUDGMENT RENDERED AT THE HEARING [1] At the conclusion of the hearing on May 14, 2013, the Court dismissed Mr.

Fowler’s application to judicially review the Minister of Justice’s decision to surrender him to the appropriate authorities in the State of Florida, with reasons to follow. [ 2 ] The attached reasons Dalphond, J.A., with which Thibault and Fournier, JJ.A concur, are those of the Court. FRANCE THIBAULT, J.A. PIERRE J. DALPHOND, J.A. JACQUES R. FOURNIER, J.A. Mtre Véronique Courtecuisse VÉRONIQUE COURTECUISSE, AVOCATE Mtre Patrick Cozannet PATRICK COZANNET, AVOCAT For the applicant Mtre Constantina Antonopoulos MINISTER OF JUSTICE CANADA For the respondent Date of hearing: May 14, 2013

REASONS OF DALPHOND, J.A. [ 3 ] At the hearing on May 14, 2013, the Court concluded that the Minister of Justice’s decision to surrender the applicant, Francis Doyle Fowler, to the United States to stand trial in Florida on a charge of second-degree murder with a weapon (not a firearm) was reasonable in the circumstances. Accordingly, the Court dismissed Mr. Fowler’s application for judicial review, with reasons to follow. These are the Court's reasons. THE BACKGROUND [ 4 ] Born on [...], 1991 in Orange County, Florida, where he spent most of his life, Mr. Fowler became a Canadian citizen in 2006.

He is thus a dual citizen of Canada and the United States of America (U.S.A.). In August or September of 2007, he moved from Florida to Longueuil, Québec, where he has since lived with his mother and attended school. [ 5 ] The Florida authorities allege that on April 21, 2007, Mr. Fowler, James Hollriegel and Jerry Henry severely beat Morgan Willis in retaliation for an insult to Mr. Henry’s mother. The offenders then apparently decided to murder Mr. Willis to conceal their assault. They allegedly bludgeoned him with a bicycle chain attached to a stick, stabbed him repeatedly and slit his throat. Mr.

Fowler and Mr. Hollriegel proceeded to bury the victim in a shallow grave and then hid the victim’s car. [ 6 ] According to a friend of the group, Brandon Scrahm, the following day Messrs Fowler, Henry and Hollriegel boasted about the incident and showed him the bloodied bicycle chain and stick as well as the place of burial. On September 5, 2007, the police uncovered the victim’s corpse at the location identified by Mr. Scrahm. On September 25, 2007 charges were laid against Messrs. Henry, Hollriegel and Fowler. An arrest warrant was issued against Mr. Fowler. [ 7 ] Mr.

Hollriegel, almost 17 years old at the time of the offence, recited the account of events to the prosecution and agreed to testify against both Messrs Henry and Fowler with the hope that his cooperation would serve as a mitigating factor in his sentencing. M. Hollriegel admitted that he cut Mr. Willis’ neck with a knife and dug a hole to bury his body. According to him, Mr. Fowler bragged later when discussing the incident, claiming that he was the one who had struck the fatal blow to Mr. Willis’ head. [ 8 ] Mr.

Henry, 19 years old at the time of the offence and alleged to have been the principal instigator, pleaded guilty and received an aggregated 40-year prison sentence for the charge of second-degree murder, as well as for two unrelated convictions for violating his probation and felony battery. [ 9 ] Mr. Hollriegel also pleaded guilty. Recently, after the Minister’s decision under review, he was sentenced to 20 years but will serve only 10 if he testifies truthfully and consistently against Mr. Fowler or if he is not asked to testify.

THE EXTRADITION PROCESS [ 10 ] On September 29, 2008, the U.S.A. requested the extradition of Mr. Fowler to stand trial for first-degree murder with a weapon (not a firearm). On March 25, 2009, the U.S.A. also requested extradition on an additional charge of second-degree murder with a weapon in violation of Florida Statute ss. 782.04 (2) and 775.087 (1). [ 11 ] On April 2, 2009, an Authorization to Proceed (ATP) was issued pursuant to s. 15 of the Extradition Act, S.C. 1999, c. 18 (the Act ), authorizing the representative of the Attorney General of Canada to seek Mr.

Fowler’s committal for extradition under the corresponding Canadian offence of murder under ss. 229 and 235 of the Criminal Code . On July 2, 2009, the Québec Superior Court committed Mr. Fowler for extradition on the offence set out in the ATP. [1] [ 12 ] On July 30, 2009, in written submissions to the Minister of Justice, Mr.

Fowler argued that s. 44 of the Act compelled the Minister to refuse the request for extradition in light of the probable sentence of life imprisonment without parole if he were to be convicted, a punishment that it was argued was unjust or oppressive having regard to all the relevant circumstances, including his age at the time of the alleged offence. Mr. Fowler also argued that under s. 47 (

c) of the Act , the Minister was empowered to refuse to extradite him considering that the law of Florida was incompatible with the principles of fundamental justice posited in the Youth Criminal Justice Act , S.C. 2002, c. 1 ( YCJA ). [ 13 ] On November 25, 2009, the Minister of Justice issued his decision. He declined to order the surrender on the charge of first- degree murder, having concluded that it would be unjust or oppressive because, if convicted, Mr.

Fowler would face a mandatory minimum sentence of life imprisonment without the possibility of parole and no mitigating factor – including his age at the time of the alleged offence – could be taken into account by the sentencing judge. The Minister concluded, however, that the order to surrender Mr. Fowler to stand trial for second-degree murder was justifiable and would not shock the Canadian conscience on the basis that the American authorities had advised that, if convicted, Mr. Fowler would face a maximum but not mandatory sentence of life imprisonment, with the possibility of parole.

In his analysis, the Minister also noted that Canada does not possess concurrent prosecutorial jurisdiction over this case and that, therefore, failure to order the surrender of Mr. Fowler would allow him to evade justice completely. Lastly, the Minister noted that it was not s. 47 (

c) of the Act that was engaged in relation to extradition requests from the U.S.A. but rather

article V of the Extradition Treaty Between Canada and the United States of America , December 3, 1971, Can. T.S. 1976 No. 3, as amended, which was not applicable here because Mr. Fowler was not a genuine resident of Canada at the time of the commission of the alleged offence, as requested by the said provision of the Treaty. [ 14 ] On April 14, 2010, Mr.

Fowler filed an application for judicial review of the Minister’s decision with this Court. [ 15 ] On June 9, 2011, the Court set aside the Minister’s surrender order ( 2011 QCCA 1076 , [2011] R.J.Q. 1230) that it found unreasonable because there was no evidence confirming that parole would be available to Mr. Fowler or when he would become eligible

for parole, were he to be convicted (see paras 36, 37, 39, 43 to 46 of the judgment). The Court also referred to the U.S. Supreme Court decision in Graham v. Florida , 560 U.S. (2010), released after the Minister’s surrender order, a case dealing with the consequences of the abolition of the parole system in Florida. For a unanimous Court, Doyon J.A., wrote: [ translation ] [50] In

summary, it would be unacceptable and unreasonable to surrender the applicant if Florida State law allowed life imprisonment without the possibility of parole. Even if the extradition request should have been accompanied by the relevant legislative provisions concerning the punishment, no documentation supporting the Minister’s conclusion that the applicant would be eligible for parole was submitted to him. The same can be said of the parole eligibility period.

Lastly, the Minister did not consider whatsoever the applicant’s argument that Florida’s parole system had been abolished, an argument that does not seem however to be without merit. [51] For these reasons, I would allow the application for judicial review of the surrender order dated November 25, 2009, and would set aside the order. I would further refer the case back to the Minister so that, in accordance with the directions of the Court, as stipulated in section 57(6) (

a) of the Act , he ensures, based on the documents provided by the United States of America, that the substantial prison sentence that could be imposed would actually provide for parole eligibility after a reasonable period. I am obviously sensitive to the impossibility of prosecuting the applicant in Canada; therefore, the Minister could also obtain the necessary assurances to compensate for the lack of parole eligibility, if such were the case, while protecting the applicant’s rights. [ 16 ] In response, the Minister of Justice requested supplementary explanations from the U.S.A.

They were provided by the Associate State Attorney of Florida, Mr. Les Hess, who wrote: If Mr. Fowler is convicted of second degree murder with a weapon in Florida, the judge may impose a maximum sentence of life imprisonment (Florida Statutes 782.04 (2), 775.087 (1) (a), and 775.082 (3) (a) (3). See Appendix A attached. Although Mr. Fowler was 16 at the time of the offence, if convicted of second degree murder, he will not qualify as a youthful offender because Florida Statute 958.04 (1) (

c) states that … “a person who has been found guilty of a capital or life felony may not be sentenced as a youthful offender under this act.” However, I can advise that my office will not seek a life sentence against Mr. Fowler if he is convicted of second-degree murder in relation to the death of Mr. Willis. I anticipate seeking a sentence of no more than 30 years in prison if Mr. Fowler pleads, and no more than 40 years in prison if he is convicted at trial. Although not legally bound by the prosecution’s recommendation, judges usually do not exceed the prosecution’s recommendation.

In this case, because the older co-defendant, Jerry James Henry, who was almost 20 years old at the time of the offence and who is now believed to have instigated the criminal conduct that led to the death of his uncle, Mr. Willis, has not received a life sentence , there is not a realistic possibility that Mr. Fowler, who was only 16 at the time of the murder, will be sentenced to life in prison . Mr. Henry pled guilty to second degree murder with a weapon, and to two other cases which were pending against him at the time, and was sentenced to 40 years in prison. Co-defendant James E.

Hollriegel II, who was almost 17 years old at the time of the murder, pled guilty to second degree murder with a weapon, with no agreement as to the length of his sentence. He has offered to testify against the co-defendants, and plans to ask the judge to take his cooperation into consideration in mitigation of his sentence. The sentence that may be imposed on Mr. Fowler is controlled by the Criminal Punishment Code, Florida Statute 921.002, a copy of which is attached as Appendix B. As described above, the maximum sentence for second degree murder with a weapon (not a firearm) is life imprisonment.

The minimum sentence which may be imposed for this offence is 246 months (20.5 years) incarceration, unless the judge finds a clear and convincing reason to depart from the guidelines, in which case the judge may impose a lesser sentence. Pursuant to Florida Statute 921.0026 (1) […] “ [a] downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to 921.0024, is prohibited unless there are circumstances or factors that reasonably justify the downward departure.

Mitigating factors to be considered include, but are not limited to, those listed in subsection (2). The imposition of a sentence below the lowest permissible sentence is subject to appellate review under

chapter 924, but the extent of the downward departure is not subject to appellate review.” The statutory mitigating circumstances listed in Florida Statute 921.0026 (2) which may apply in this case are : (

a) The departure (sentence) results from a legitimate, uncoerced plea bargain. (

b) The defendant was an accomplice to the offence and was a relatively minor participant in the criminal conduct. (

f) The victim was an initiator, willing participant, aggressor, or provoker of the incident. (

g) The defendant acted under extreme duress or under the domination of another person. (

j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. (

k) At the time of the offense, the defendant was too young to appreciate the consequences of the offence . The mitigating factors listed in Florida Statute 921.0026 (2) are those factors that the legislature has chosen to formally recognize, but the defense and the judges are not limited to this list . Once a valid mitigating circumstance has been found to exist, the judge is free to give any lesser sentence he or she chooses. In this case, Mr. Fowler committed the alleged crime more than four years ago.

His behaviour in the intervening years will be considered by the judge at sentencing, as well as all the circumstances of the crime including any mitigating circumstances Mr. Fowler chooses to raise . Florida abolished its parole system many years ago, but there is a mechanism which provides the judge with another option which is ultimately controlled by the trial judge, rather than a parole commission. A judge may decide to impose a lesser prison sentence (within the sentencing guidelines) and order that it be followed by a term of supervised probation, which may be terminated early with the judge’s approval.

Early termination is often allowed for inmates who successfully comply with the terms of probation.

By way of example, if after considering the circumstances of the crime, the judge has a 30 year sentence in mind, the judge is permittedto sentence the defendant to 246 months (20.5 years) or more, of incarceration and follow the period of incarceration with probation tocomplete the 30 year sentence. This has roughly the same effect as allowing early parole release on a 30 year sentence, but gives thejudge control over when the defendant may be released from confinement.

In this example, the defendant would be released from prisonwhen he has completed 246 months of imprisonment, less of up to 15% for good behaviour (36.9 months), for a net of 209.1 months, or17.245 years. If the defendant does not violate the terms of his probation, he remains free, but under supervision until the 30 yearsentence is completed, unless the judge allows for early termination of probation. If the defendant violates his probation, he can bereturned to prison.

On the other hand, if, at the time of sentencing, the judge determines that there are valid mitigating factors, the judge may impose aprison sentence of less than 246 months (20.5 years) incarceration, and may or may not follow that sentence with a term of probation. Forinstance, the judge may decide that the entire circumstances of this case merit a sentence of 7 years imprisonment followed by 3 years ofprobation. As stated previously, once a valid mitigating circumstance is found to exist, the extent of the downward departure is notsubject to appellate review.

Finally, an inmate may be released for good behaviour, earlier than the term of imprisonment pronounced bythe judge. The Florida Constitution limits such early release to 15% of the sentence. Early release for good behaviour does not apply to alife sentence.[2] [Emphasis added] [17] In other words, Mr. Fowler, if found guilty, is exposed prima facie to a minimum sentence of 20.5 years and, if a judge agreeswith the position of the prosecuting authorities announced in the said letter, to a maximum of 40 years (30 years if he enters a guiltyplea). However, if Mr.

Fowler is able to show a valid mitigating factor, the judge may impose a sentence of less than 20.5 years. In allscenarios, the judge could include, as part of the sentence, a term of probation that would reduce the period of his imprisonment. Finally,the time spent in jail could further be reduced for good behaviour (up to 15%). [18] On December 4, 2011, in new written submissions to the Minister, Mr.

Fowler insisted that the Assistant State Attorney’sexplanations and assurances do not adequately respond to the concerns voiced in the Court’s judgment rendered on June 9, 2011.Moreover, he argued that the recent announcement that Mr. Hollriegel wanted to withdraw his guilty plea required the Minister toinvestigate the potential implications for Mr. Fowler. (As a matter of fact, Mr. Hollriegel finally did not withdraw his plea and wassentenced to a conditional term of 10 years imprisonment, information communicated to Mr.

Fowler’s lawyer by the Department ofJustice a few months ago with an indication that the prosecuting authorities were apparently ready to offer Mr. Fowler a similar deal). [19] On March 28, 2012, the Minister issued an amended order of surrender. The key portions of the Minister’s decision read: While it is now clear that a traditional parole system no longer exists in Florida, I am satisfied that there is a process in place similar toparole, as set out above, which is controlled by the sentencing judge, rather than a parole board or prison. Although Mr.

Fowler would not benefit from parole as we understand it in Canada, based on the information provided by the authoritiesin Florida, I am satisfied that their sentencing process provides the sentencing judge with sufficient flexibility to ensure that Mr. Fowlerwill be afforded fair treatment. In my view, the sentencing judge has a broad discretion to craft an appropriate sentence taking intoaccount Mr. Fowler’s personal circumstances and the circumstances of the offence. […] In my view, there is nothing unjust or oppressive in surrendering Mr.

Fowler to face prosecution and if convicted, sentencing underFlorida law on the basis that the rules governing their sentencing process do not accord with ours (Canada v Schmidt, (SCC), [1987] 1 SCR 500). While the potential sentence Mr. Fowler faces if convicted is lengthy, I must also consider the gravity of theoffence, the protection of society, and the right of the United States to apply its own sentencing regime to those who commit crimeswithin its jurisdiction (United States v. Jamieson (1994), (QC CA), 93 C.C.C. (3d) 265 (Que. C.A.), rev’d (SCC), [1996] 1 S.C.R. 465; United States v.

Gwynne (1998), (BC CA), 103 B.C.A.C. 1, leave to appealto S.C.C. refused, [1998] 1 S.C.R. ix). […] Nevertheless, in light of Mr. Fowler’s youth, I have decide to amend my surrender order to make it conditional upon receipt of thefollowing assurance from the United States : • That if convicted of second degree murder with a weapon, the prosecution will not seek a sentence greater than 40 years.[3] [Emphasis added] [20] In April 2012, Mr. Fowler applied for judicial review of the Minister’s decision. APPLICANT’S ARGUMENTS [21] Mr.

Fowler argues that being a young offender and exposed to a prison sentence ranging between 20.5 and 40 years withoutparole makes the surrender unjust and oppressive and should have compelled the Minister to refuse his surrender under s. 44 (1) of theAct. According to him, the Minister’s decision also failed to give proper weight to the principles of fundamental justice applicable toyoung offenders, thus infringing s. 7 of the Canadian Charter of Rights and Freedoms (Charter). ANALYSIS

I. The standard of judicial review [22] As mentioned in Idziak v. Canada (Minister of Justice), (SCC), [1992] 3 S.C.R. 631 at 659, the Minister’sdecision is largely political in nature, “at the extreme legislative end of the continuum of administrative decision-making.” Thus theapplicable administrative law standard is reasonableness: Kindler v. Canada (Minister of Justice), (SCC), [1991] 2S.C.R. 779 at 836, even over decisions involving rights under the Charter: Lake v.

Canada, 2008 SCC 23 , [2008] 1 S.C.R. 761at paras. 34-41. [23] In Lake, LeBel J. described, at para. 41, the level of scrutiny to which courts ought to subject the Minister’s decision: [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. II. The legal parameters [24] Section 44(1)(

a) of the Act requires the Minister to refuse to order a surrender if he is satisfied that it would be unjust oroppressive having regard to all the relevant circumstances: 44.

(1) The Minister shall refuse to make asurrender order if the Minister is satisfied that (

a) the surrender would be unjust or oppressivehaving regard to all the relevant circumstances;[…]. [Emphasis added] 44.

(1) Le ministre refuse l’extradition s’il estconvaincu que :

a) soit l’extradition serait injuste ou tyranniquecompte tenu de toutes les circonstances; […] [25] In Lake, the Supreme Court of Canada acknowledges that s. 44(1) of the Act and s. 7 of the Charter overlap somewhat; whichthe arguments of the applicant confirm this. It suffices to say that if the possible punishment under the law of Florida is unjust oroppressive in the circumstances, especially considering the age of Mr.

Fowler at the time of the alleged crime, his surrender would becontrary to the principles of fundamental justice under s. 7 of the Charter. [26] A punishment will be unjust or oppressive when the person to be surrendered faces a situation that “is simply unacceptable” or“shocks the conscience”, i.e. a situation that infringes the principles of fundamental justice under s. 7 of the Charter. [27] In Lake, relying on Kindler and United States of America v.

Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, LeBel J. described the“shock the conscience” test as involving a balancing analysis: [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. [Emphasis added] [28] In other words, the test involves a fact-based balancing of a multitude of considerations by a person appreciative of ourprinciples of fundamental justice. The Minister of Justice’s outcome may well vary from case to case depending on the mix of contextualfactors put into the balance (Burns, at para. 65).

On the one hand, there are the individual circumstances of the person contestingextradition and the consequences of extradition for him or her and, on the other hand, the factors weighing in favour of that person'ssurrender. [29] In the first group, there are personal factors such as mental condition, age at the time of the alleged crime, current healthcondition, the nature of the criminal procedure and the punishment that the person will likely face, if found guilty. [30] In the second group, the following recognized factors favour extradition: (1) individuals accused of a crime should be brought to trial to determine the truth of the charges;[4] (2) justice is normally best served by a trial in the jurisdiction where the crime was allegedly committed and the harmful impact felt;[5]

(3) Canadian citizens (or dual citizens) who choose to live in a foreign state submit to the local laws, procedures and punishments whichthat state applies to its own residents;[6] (4) the international extradition regime relies on comity and trust between cooperating states in order to bring fugitives to justice[7] andremain effective;[8]

(5) the risk that Canada might earn a reputation for rejecting extradition requests and that such a reputation will tempt (potentiallydangerous) men and women accused of committing violent crimes to flee to Canada to evade justice.[9] [31] In most cases, the factors in this second group will justify the accused’s extradition to a foreign country, even when thataccused's rights under ss. 6 (1) and 7 of the Charter are engaged. [32] The treatment or punishment an accused is liable to receive in the requesting state, however, may be so severe for the allegedoffence that the extradition, notwithstanding these aforementioned factors, would shock the conscience. [33] As pointed out in Kindler, in some cases the resolution of the conflict will be straightforward.

In Burns, the Supreme Court ofCanada gave a few examples of punishments that would invariably shock the conscience: 69 The “shocks the conscience” language signals the possibility that even though the rights of the fugitive are to be considered in thecontext of other applicable principles of fundamental justice, which are normally of sufficient importance to uphold the extradition, aparticular treatment or punishment may sufficiently violate our sense of fundamental justice as to tilt the balance against extradition.Examples might include stoning to death individuals taken in adultery, or lopping off the hands of a thief.

The punishment is so extremethat it becomes the controlling issue in the extradition and overwhelms the rest of the analysis. [Emphasis added] The Minister’s refusal to extradite an accused would also be straightforward where it is established that a prosecution in the requestingstate might involve the infliction of torture (Altun v. Germany (1983), 5 E.H.R.R. 611). [34] Nevertheless, in many instances, the answer will not be so clear. It is then up to the Minister to assess the situation and to drawthe line.

Such a decision will then be reviewed if and only if it is unreasonable considering all the relevant factors. [35] The mere fact that the requesting state’s judicial system is different – without, for instance, a presumption of innocence or aparole mechanism – is not sufficient for courts to conclude that the Minister’s decision to order surrender is unreasonable. As stated byLa Forest J. in Canada v.

Schmidt, (SCC), [1987] 1 S.C.R. 500 at 522-523: I hasten to add, however, that I see nothing unjust in surrendering to a foreign country a person accused of having committed a crimethere for trial in the ordinary way in accordance with the system for the administration of justice prevailing in that country simplybecause that system is substantially different from ours with different checks and balances. The judicial process in a foreign country mustnot be subjected to finicky evaluations against the rules governing the legal process in this country.

A judicial system is not, for example,fundamentally unjust—indeed it may in its practical workings be as just as ours—because it functions on the basis of an investigatorysystem without a presumption of innocence or, generally, because its procedural or evidentiary safeguards have none of the rigours of oursystem. [36] In fact, our extradition process does not require that there be conformity between the requesting partner’s laws and applicableCanadian norms and standards.

McLachlin J. (as she then was) writes in Kindler, supra at 844-845 that: Most importantly, our extradition process, while premised on our conceptions of what is fundamentally just, must accommodatedifferences between our system of criminal justice and the systems in place in reciprocating states. The simple fact is that if we were toinsist on strict conformity with our own system, there would be virtually no state in the world with which we could reciprocate. Canada,unable to obtain extradition of persons who commit crimes here and flee elsewhere, would be the loser.

For this reason, we require alimited but not absolute degree of similarity between our laws and those of the reciprocating state. We will not extradite for acts whichare not offences in this country. We sign treaties only with states which can assure us that their systems of criminal justice are fair andoffer sufficient procedural protections to accused persons. We permit our Minister to demand assurances relating to penalties where theMinister considers such a demand appropriate.

But beyond these basic conditions precedent of reciprocity, much diversity is, ofnecessity, tolerated. [37] In United Sates of America v.

Barbu, 2010 ONCA 891, 265 C.C.C. (3d) 244, the Ontario Court of Appeal summarizes thatimportant point as follows, at para. 43: The legal system of a requesting state did not have to mirror that of Canada in order for extradition to be consistent with the principles offundamental justice or for the Minister’ surrender order to be reasonable. [38] The fact that the requesting party imposes more severe sentences than would be the case under Canadian law also does notsuffice to render someone's extradition unjust or oppressive. In United States of America v.

Jamieson, (SCC), [1996] 1S.C.R. 465, the accused faced a sentence of 20-30 years imprisonment, without parole eligibility, for having allegedly trafficked 10ounces of a mixture containing cocaine. In this Court, United States of America v. Jamieson, (QC CA), [1994] R.J.Q.2144, 93 C.C.C. (3d) 265, Fish J.A. (as he then was) writing for the majority, set aside the Minister’s order to surrender while BaudouinJ.A. dissented, though he found the relevant Michigan legislation to be extremely severe.

In a brief judgment, the Supreme Court ofCanada reversed this Court, citing supportively the reasons elaborated in Baudouin J.A.’s dissenting opinion that it was not up to courtsto impose Canadian sentencing standards on other countries. To the same effect see: United States of America v. Ross, (SCC), [1996] 1 S.C.R. 469. [39] In Gwynne v. Canada (Minister of Justice), (1998) (BC CA), 103 B.C.A.C. 1, 50 C.R.R. (2d) 250 (C.A.),leave to appeal to the S.C.C. dismissed, June 4, 1998, [1998] 1 S.C.R. ix, the accused had been convicted on two counts of attemptedextortion in Alabama.

He was sentenced as a habitual offender to serve two consecutive 60-year sentences. Gwynne escaped from jailafter 9 years and fled to Canada. When Alabama issued a warrant for his arrest, Gwynne argued that returning him to the United States,given the length of his consecutive sentences and the prison conditions in Alabama, would amount to a violation of his right not to bedeprived of liberty except in accordance with the principles of fundamental justice. The British Columbia Court of Appeal dismissed hisapplication:

[27] But the severity alone of Mr. Gwynne’s sentence is not in itself ground for refusing to extradite him. It is harsh indeed to impose consecutive sixty-year sentences. Nevertheless, it is possible under the Criminal Code of Canada , although not for crimes of extortion, for a person to be sentenced for a term during which he or she is ineligible for parole that could cause a middle-aged offender to doubt his or her normal life expectancy would exceed the period of parole ineligibility. [ 40 ] In United States of America v.

Thamby, 2011 ONCA 333 , 85 C.R. (6th) 133, the Ontario Court of Appeal stated at para. 15: […] As severe as that may be, the mere possibility that a Canadian citizen may face a much higher sentence if extradited does not turn a stay of the domestic proceedings in favour of extradition into an abuse of process […] [ 41 ] And, finally, in the recent decision of United States of America v.

Ranga, 2012 BCCA 82 , 317 B.C.A.C. 219, the British Columbia Court of Appeal summarized the state of the law as follows: [9] Courts have repeatedly held that a sentence is not unjust or oppressive because the punishment the person may face in the requesting state is greater than the punishment that might be faced in Canada. [References omitted] [ 42 ] In

summary, the “shocks the conscience” threshold is high and those seeking a judgment that the Minister’s assessment in this regard is unreasonable have, in most cases, an extremely demanding burden to satisfy. [ 43 ] When dealing with a young offender, the Minister must also take into account the principle of fundamental justice, enshrined in s. 7 of the Charter , that young persons are entitled to a presumption of diminished moral blameworthiness or culpability flowing from the fact that, because of their age, they have heightened vulnerability, less maturity and a reduced capacity for moral judgment ( R. v.

D.B. , 2008 SCC 25 , [2008] 2 S.C.R. 3). In light of this principle, in considering whether to order the surrender of a young person, the Minister must be satisfied that the requesting state, during trial and sentencing, will accord due consideration to the accused’s age and diminished moral capacity. [ 44 ] For a young offender, life imprisonment without parole or any other means of conditional early release may well infringe upon this principle of fundamental justice. The Minister acknowledged as much in his decision to refuse to surrender Mr.

Fowler on the charge of first-degree murder. [ 45 ] This does not mean that the requesting state must have a system in place for young offenders that mirrors Canadian law's focus on rehabilitation and reintegration. To hold otherwise, as the applicant is proposing, would be tantamount to imposing the standards of the YCJA on our extradition partners and would run contrary to the guidance of the Supreme Court that Canadian courts must avoid giving our laws, including the Charter , an extraterritorial effect ( Schmidt , supra ; Kindler , supra ; Lake , supra ). III.

The Minister’s decision is reasonable [ 46 ] As it appears from his decision, the Minister considered numerous factors, including Mr. Fowler’s age at the time of the offence and the sentence he may face if convicted in Florida. [ 47 ] A number of factors highlighted by the Minister need to be repeated here. First, if Mr. Fowler, a US citizen, is not extradited to Florida, he will successfully evade justice for a very serious alleged offence because Canada does not possess concurrent prosecutorial jurisdiction. Second, the United States has a compelling interest in trying Mr.

Fowler and subjecting him to the American criminal justice system given that the alleged crime occurred in the United States and the alleged perpetrators and victim were all US residents at the time. Third, Mr. Fowler submitted himself to the laws of the United States, and of Florida in particular. He is, after all, a dual citizen and has resided most of his life in this state .

Fourth, Canada must avoid appearing to be a safe haven for alleged criminals. [ 48 ] Nevertheless, the applicant claims that being exposed to a potential sentence of 40 years without any possibility of parole, in conjunction with his age at the time of the offence, renders his extradition unjust or oppressive. The Minister disagreed. [ 49 ] A 40-year sentence for a young offender, without parole eligibility, might shock the conscience of Canadians or be considered a simply unacceptable situation if it was the likely result of his surrender. That may not be, however, considering that if Mr.

Fowler were tried and convicted in Canada for second-degree murder, and sentenced as an adult, he would face a maximum sentence of life imprisonment (albeit with the possibility of parole after 7 years) and that, despite not having a parole system, Florida allows a portion of a term of imprisonment to be exchanged for a probationary period, and provides for early release for good behaviour (up to 15% of the sentence). [ 50 ] In any event, the Court does not have to make that determination since the Minister’s conclusion that a 40-year term of imprisonment is not likely to be imposed on Mr.

Fowler is reasonable considering the following facts: - the principal instigator, Mr. Henry, received an aggregated sentence of 40 years for the charge of second-degree murder and two unrelated convictions; Mr. Fowler cannot logically receive a similar sentence; - Mr. Fowler was the youngest of the group, has no criminal record and has not been charged with any other criminal act either in the USA or Canada; - Mr.

Fowler will likely be able to establish one or more mitigating factors which justify a departure from the minimum sentence of 20.5 years; and - the sentencing judge is vested with the discretion to divide Mr. Fowler’s eventual incarceration between time spent in a penitentiary and time spent under supervised probation.

[ 51 ] The applicant’s lawyer argued nevertheless that the Minister’s decision should be quashed because he did not give enough weight in his analysis to the fact that Mr. Fowler was 16 at the time of the alleged offence and should not be treated as an adult in Florida. She also argued that the Minister had the obligation to obtain assurances from the prosecuting authorities that her client would be sentenced as a young offender. [ 52 ] It is clear from the Minister’s reasons that he considered Mr. Fowler’s age and concluded that the Florida courts would accord due consideration to Mr.

Fowler’s diminished moral capacity when he is sentenced if he is found guilty: […] I am satisfied that their sentencing process provides the sentencing judge with sufficient flexibility to ensure that Mr. Fowler will be afforded fair treatment. In my view, the sentencing judge has a broad discretion to craft an appropriate sentence taking into account Mr. Fowler’s personal circumstances and the circumstances of the offence. [ 53 ] The reasonableness of that assumption cannot be seriously challenged considering the recent decisions of the US Supreme Court in Graham v. Florida , supra , and in Miller v.

Alabama , 567 U.S. ___ (2012). For the majority in Miller, Justice Kagan wrote at p. 10-11: Graham concluded from this analysis that life-without-parole sentences, like capital punishment, may violate the Eighth Amendment when imposed on children. To be sure, Graham ’s flat ban on life without parole applied only to nonhomicide crimes, and the Court took care to distinguish those offenses from murder, based on both moral culpability and consequential harm. See [ Graham v. Florida , 560 U.S. ___ (2010), 130 S. Ct. 2011, 176 L. Ed. 2d 825 ], at ___, (slip op., at 18).

But none of what it said about children—about their distinctive (and transitory) mental traits and environmental vulnerabilities—is crime-specific . Those features are evident in the same way, and to the same degree, when (as in both cases here) a botched robbery turns into a killing. So Graham ’s reasoning implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses. Most fundamentally, Graham insists that youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole.

In the circumstances there, juvenile status precluded a life-without-parole sentence, even though an adult could receive it for a similar crime . And in other contexts as well, the characteristics of youth, and the way they weaken rationales for punishment, can render a life-without-parole sentence disproportionate.

Cf. id ., at ___ (slip op., at 20-23) (generally doubting the penological justifications for imposing life without parole on juveniles). “An offender’s age,” we made clear in Graham , “is relevant to the Eighth Amendment,” and so “criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.” Id ., at ___ (slip op., at 25). The Chief Justice , concurring in the judgment, made a similar point.

Although rejecting a categorical bar on life-without-parole sentences for juveniles, he acknowledged “ Roper ’s conclusion that juveniles are typically less culpable than adults,” and accordingly wrote that “an offender’s juvenile status can play a central role” in considering a sentence’s proportionality. Id ., at ___ (slip op., at 5-6); see id ., at ___ (slip op., at 12) (Graham’s “youth is one factor, among others, that should be considered in deciding whether his punishment was unconstitutionally excessive”).

But the mandatory penalty schemes at issue here prevent the sentencer from taking account of these central considerations. By removing youth from the balance —by subjecting a juvenile to the same life-without-parole sentence applicable to an adult— these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes Graham ’s (and also Roper ’

s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children . [Note omitted; emphasis added] [ 54 ] Quite clearly, age is a factor to be considered in sentencing juvenile offenders in the United States.

Moreover, the distinctive and transitory mental traits and vulnerability of juvenile offenders, the basic assumption of our youth justice system, also seem to have been recognised in the USA. [ 55 ] How this should translate in practice, namely in the sentencing analysis and in the modalities of imprisonment, including a parole system, must however be left to the State of Florida.

As Laforest put it in Schmidt , supra at 523-524: A decision to surrender a fugitive for trial in a foreign country cannot be faulted as fundamentally unjust because the operation of the foreign law in the particular circumstances has not been subjected to scrutiny to see if it will conform to the standards of our system of justice. The present system of extradition works because courts give the treaties a fair and liberal

interpretation with a view to fulfilling Canada’s obligations, reducing the technicalities of criminal law to a minimum and trusting the courts in the foreign country to give the fugitive a fair trial, including such matters as giving proper weight to the evidence and adequate consideration of available defences and the dictates of due process generally . [Emphasis added] [ 56 ] It suffices here to note that the law of Florida recognizes the young age of the accused as a mitigating factor in sentencing (Florida Statute 921.0026 (2)), and may even justify a sentencing judge to depart from the otherwise applicable mandatory minimum sentence of 20.5 years. [ 57 ] The subsidiary question remains whether the Minister, in the exercise of his discretion, should have sought assurances from the Florida Attorney General that Mr.

Fowler’s age at the time of the alleged crime would be taken into account in proposing a sentence closer to the low end of the spectrum than its upper limit of 40 years (or 30 if he pleads guilty)? [ 58 ] As the Supreme Court has consistently reminded the courts, judicial intervention must be limited to cases of real substance and must remain sensitive to the dangers of over-zealous interference with the extradition system and the key role of the Minister in assessing competing considerations or factors ( Schmidt , supra ; Kindler , supra ; Lake , supra ).

[ 59 ] In the case at bar, Mr. Fowler is not facing the death penalty (a punishment offending the principles of fundamental justice: Burns , supra ) or life imprisonment without parole (the Minister has already excluded a surrender order on a first-degree murder charge). Moreover the Minister sought assurances that the prosecution will not seek more than 40 years if there is need for a trial. In light of these factors and the principles mandated by the US Supreme Court in sentencing youth offenders, the Minister ordered the surrender on the assumption that Mr.

Fowler would, in all likelihood, receive a sentence much shorter than 40 years and thus there was no need for further assurances. In other words, he expressed trust in the Florida system and its capacity to take into account all relevant factors, including the age of Mr. Fowler at the time of the alleged offence.

This conclusion appears reasonable in the circumstances, and to order him to seek further assurances about a potential sentence would constitute an improper interference by this Court with the Minister's political assessment. [ 60 ] Finally, the reasonableness of the Minister’s assessment is confirmed by the post-decision fact that Mr. Hollriegel, who admitted to cutting the throat of the victim and was also 16 years old at the time of the crime in which Mr.

Fowler is alleged to have participated, was sentenced to a conditional 10-year imprisonment, a few months ago, and could be released from jail after 8.5 years on good behaviour. There is no reason to doubt that Mr. Fowler could not benefit from a similar arrangement. CONCLUSION [ 61 ] For these reasons, the Court dismissed the application. PIERRE J. DALPHOND, J.A.