Carter v Canada (Attorney General), 2021 SKCA 91

Court of Appeal for Saskatchewan Docket: CACR3283 Citation: Carter v Canada (Attorney General) , 2021 SKCA 91 Date: 2021-06-14 Between: Julliette Belle Carter Applicant And The Attorney General of Canada (on behalf of the United States of America) Respondent Before: Richards C.J.S., Schwann and Kalmakoff JJ.A. Disposition: Application dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Kalmakoff On appeal from: QB 285 of 2019, Saskatoon Application heard: February 2, 2021 Counsel: Christopher Veeman for the Applicant Sean Sass and Candace Almightyvoice for the Respondent Richards C.J.S. I. INTRODUCTION [ 1 ] The United States of America seeks the extradition of Julliette Belle Carter to face charges for wire fraud conspiracy, wire fraud, and conspiracy to commit money laundering. Ms. Carter consented to her committal for extradition. The Minister of Justice of Canada then ordered her surrender. [ 2 ] This is a judicial review application brought by Ms.

Carter pursuant to s. 57(1) of the Extradition Act , SC 1999, c 18 [ Act ]. She contests the Minister’s order by arguing that he erred in his assessment of whether her surrender would be “unjust or oppressive” within the meaning of s. 44(1) (

a) of the Act . She argues, in particular, that the Minister did not give proper consideration to the fact of her Indigenous status and how that status will be considered by the United States courts. [ 3 ] I have concluded that Ms. Carter’s application must be dismissed. The Minister made no reviewable error in ordering her surrender. II. BACKGROUND [ 4 ] Ms. Carter is a 24-year-old Cree woman. She presently resides on the Pelican Lake First Nations reserve in northern Saskatchewan. [ 5 ] In October of 2018, the United States formally requested the extradition of Ms.

Carter to stand trial with Mohit Sharma, Kunal Sharma and a corporate entity in the United States District Court for the Northern District of Georgia. The alleged offences in issue are: (

a) Count 1: wire fraud conspiracy, in violation of Title 18, United States Code, s. 1349; (

b) Counts 2–6: wire fraud, in violation of Title 18, United States Code, s. 1343, and aiding and abetting wire fraud, in violation of Title 18, United States Code, s. 2; and (

c) Count 7: conspiracy to commit money laundering, in violation of Title 18, United States Code, s. 1956(h). [ 6 ] In support of the extradition request, the United States provided a Record of the Case [Record]. In it, a United States attorney certified that the evidence summarized therein was available for trial and sufficient to justify prosecution of the offences alleged. The key aspects of the Record are as follows: (

a) Between February of 2014 and November of 2017, Ms. Carter and other co-conspirators engaged in a telephone fraud scheme targeting United States victims in various states. (

b) Victims of the scheme indicated that callers impersonated United States Internal Revenue Service officials seeking to collect fictitious back taxes, penalties and fines. (

c) The callers directed the victims to send wire transfers through Western Union, MoneyGram, or by using other payment methods. The callers often threatened the victims with prosecution or arrest if they did not comply with the requests. (

d) There were at least 241 victims, with a total monetary loss of at least $633,000.00 USD. (

e) Ms. Carter entered the United States on July 13, 2015, and remained there until August 31, 2015. (

f) Prior to Ms. Carter entering the United States, her co-conspirator Mohit Sharma sent her 38 money transfers totalling

$3,987.98. Ms. Carter received these transfers in Edmonton, Alberta. (

g) Between July 15, 2015, and August 28, 2015, Ms. Carter attended at Western Union and MoneyGram locations throughoutthe United States and collected a total of $412,523.49 USD from approximately 138 individual victims of the fraud scheme via 202 wiretransfers. Ms. Carter used her Canadian passport as identification to pick up approximately 119 of the wire transfers. (

h) Ms. Carter and Mohit Sharma had a joint Bank of America chequing account. Ms. Carter signed the signature card on theaccount and provided her passport as identification for the account. Mohit Sharma’s email and birthdate are associated with the account’sonline banking information. (

i) In a recorded phone call between Mohit Sharma and a confidential witness on October 11, 2017, Mr. Sharma outlined manyaspects of the fraudulent scheme, and mentioned Ms. Carter’s involvement. Mr. Sharma shared that Ms. Carter “must have earned [over]$100,000.00 by now”. [7] In March of 2019, Ms. Carter was arrested under the Act. She ultimately consented to her committal for extradition. The Courtof Queen’s Bench issued an order for committal in August of 2019. [8] In September of 2019, this Court, by way of a consent order, directed the preparation of a Gladue report which was madeavailable to the Minister. The main features of that report can be summarized as follows: (

a) Ms. Carter’s parents both attended day schools on their respective reserves. (

b) Ms. Carter’s parents moved to Edmonton before she was born but, over the course of her childhood, moved back and forthbetween Edmonton and Pelican Lake on several occasions. (

c) Ms. Carter was homeschooled for grades 2 and 4 through 7. She did not finish high school. (

d) Ms. Carter’s father abused alcohol and this led her mother to leave him when Ms. Carter was nine years old. Her mother thenraised the family with no financial assistance from the father. (

e) Ms. Carter has never had full or part-time employment. She has always lived either with her mother or a boyfriend and hasnever had a regular income of her own. (

f) Ms. Carter, according to the report writer, appears to be “naïve of the world around her”. Her father describes her as “easilypersuaded” and as someone who “doesn’t speak up for herself”. Ms. Carter’s family reported that she was raised in a lifestyle shelteredfrom the outside world by virtue of the family’s adherence to the strict rules of the church to which they belonged. (

g) Ms. Carter describes herself as having been raised “Christian, non-traditional, and we never attended any [First Nation]ceremonies”. [9] Ms. Carter also provided submissions and materials to the Minister. These outlined issues rooted in her Indigenous heritage,youth and naïveté, and concerns about the severity of the sentence that would be imposed on her in the United States. She submitted thather surrender would violate her rights under ss. 6(1) and 7 of the Charter and would be unjust and oppressive within the meaning ofs. 44(1)(

a) of the Act. (In this Court, Ms. Carter does not pursue any issues related to s. 6(1).) III. THE MINISTER’S DECISION [10] The Minister issued an Order of Surrender on May 26, 2020. On that same date, he provided a 19-page written response[Response] to Ms. Carter’s submission to explain his decision. [11] The Minister thoroughly reviewed Ms. Carter’s personal background and the factors identified in R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue], that are relevant to her situation before concluding as follows at page 17: In my opinion, Ms. Carter’s surrender would not be unjust or oppressive under section 44(1)(

a) of the Act or otherwise violate her rightsunder

section 7 of the Charter, having regard to all the relevant circumstances, including her Indigenous status and the relevant Gladuefactors, based, in part, on the following: • The evidence against Ms. Carter in respect to her involvement in a large-scale fraud targeting United States citizens that defraudedhundreds of victims of at least $633,000. • Ms.

Carter cannot be prosecuted in Canada with respect to her conduct in the fraud that harmed so many American victims. • There is not a large disparity in the likely sentences in the United States and Canada and she will not face a “lengthy, crushing sentencein the United States” ([United States of America v Leonard, 2012 ONCA 622, 291 CCC (3d) 549, leave to appeal to SCC refused [2012]SCCA No 490]). • Ms.

Carter may inform the United States court of her youth, her explanation of the circumstances surrounding her involvement in theoffences, her Indigenous heritage and Canada’s history of mistreatment of Indigenous communities and ask it to take those circumstancesinto account in mitigation of her sentence. • Ms. Carter’s Indigenous heritage and cultural and spiritual needs will be accommodated by American authorities in pre-trial and post-conviction custody. • Canada’s system of extradition is founded on principles of reciprocity, comity and respect for differences, even substantial differences, in

foreign justice systems (India v Badesha, 2017 SCC 44; [M.M. v United States of America, 2015 SCC 62, [2015] 3 SCR 973]). • Ms. Carter will obtain credit for any time served in Canada pending her extradition. After considering all the circumstances of this case, I have concluded that surrendering Ms. Carter would not be unjust or oppressive orotherwise inconsistent with the Act, the Treaty or the Charter. IV. ANALYSIS [12] Ms. Carter seeks to overturn the Minister’s decision on the general basis that he failed to properly account for Gladue-typeconsiderations in his analysis of her situation.

More specifically, she contends that the Minister erred in his assessment of her rights unders. 7 of the Charter and thereby failed to properly apply s. 44(1)(

a) of the Act. [13] Before turning to the specifics of these arguments, it is necessary to confirm the basic legal framework that governs theresolution of this application. A. The legal framework [14] A ministerial decision to order the surrender of a person involves a considerable amount of discretion.

It lies at “the extremelegislative end of the continuum of administrative decision-making” and has been characterized as being “largely political in nature” (see:Lake v Canada (Minister of Justice), 2008 SCC 23 at para 22, [2008] 1 SCR 761 [Lake], quoting Idziak v Canada (Minister of Justice), (SCC), [1992] 3 SCR 631 at 659). Nonetheless, the Minister’s authority to order a person’s surrender is conditioned bythe terms of the Act. Section 44(1)(

a) provides as follows: 44(1) The Minister shall refuse to make a surrender order if the Minister is satisfied that (

a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; …. [15] In light of s. 44(1)(a), the Minister must consider all of the relevant circumstances to determine whether a surrender is unjust oroppressive. This was explained as follows in Canada (Justice) v Fischbacher, 2009 SCC 46, [2009] 3 SCR 170 [Fischbacher]: [38] Reaching a conclusion on surrender requires the Minister to undertake a balancing of all the relevant circumstances, weighingfactors that militate in favour of surrender against those that counsel against.

The circumstances that will be “relevant” to a surrenderdecision will vary depending on the facts and context of each case.

Some of these factors may include: any representations made by theperson sought on the question of surrender in accordance with s. 43(1) of the Act, the conduct of the proceedings in the requesting countrybefore and after the request for extradition, the potential punishment facing the individual if surrendered, humanitarian issues relating tothe personal circumstances of the individual, the timeliness and manner of prosecuting the extradition proceedings in Canada, the need torespect the constitutional rights of the person sought and Canada’s international obligations under the Treaty and as a responsible memberof the international community: see Bonamie, Re, 2001 ABCA 267, 293 A.R. 201, at para. 54, and United States of America v.

Cobb, 2001SCC 19, [2001] 1 S.C.R. 587, at para. 34. The person facing extradition has the burden of establishing the circumstances that would make a surrender unjust or oppressive within themeaning of s. 44(1)(a). See: India v Badesha, 2017 SCC 44 at para 41, [2017] 2 SCR 127 [Badesha]. [16] The “relevant circumstances” to be considered in the analysis required by s. 44(1)(

a) may include an alleged breach of theCharter rights of the person in question.

Section 7 of the Charter is often referenced in this regard. It protects against denials of libertythat are undertaken in violation of principles of fundamental justice. In this regard, it is well established that the manner in which the stateseeking extradition will deal with the person in question may be such that surrender will violate these principles. In that situation, i.e.,where surrender is found to be contrary to the principles of fundamental justice, it will be unjust and oppressive within the meaning ofs. 44(1)(

a) and the Minister must refuse the extradition request. See: Fischbacher at para 37. [17] It follows from the discretionary nature of the Minister’s decision under s. 44(1)(

a) that such decisions are reviewable on thereasonableness standard. The Supreme Court explained the proper approach in Lake: [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 reassess 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, acourt 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. [18] The test to be applied in determining if s. 7 will be offended by an extradition involves asking whether such an order would“shock the conscience” or whether the person would face “a situation that is ‘simply unacceptable’”.

See: United States v Burns, 2001SCC 7 at paras 66 and 68, [2001] 1 SCR 283. [19] In Lake, LeBel J. confirmed that, when a s. 7 breach is alleged, the proper approach for a reviewing court is to “balance thefactors for and against extradition in the circumstances in order to determine whether extradition would tend to ‘shock the conscience’” (atpara 32). The role of the court is not to remake the Minister’s decision in this regard. Rather, it is to consider whether the Minister took

into account the relevant facts and reached a defensible decision based on them. Justice Moldaver explained this as follows in Badesha: [57] As indicated, the central question in this case is whether it was reasonable for the Minister to find that, based on the assurancesprovided by India, surrendering Mr. Badesha and Ms. Sidhu would not violate s. 7 of the Charter or be otherwise unjust or oppressive.The role of a reviewing court in these circumstances is not to re-assess the relevant factors and substitute its own view for that of theMinister: Lake, at para. 41.

Rather, the court must examine whether the decision falls within a range of reasonable outcomes. The questionto be asked is: did the Minister consider the relevant facts and reach a defensible conclusion based on those facts (Lake, at para. 41)? In myrespectful view, the answer in this case is yes. [20] I note, as well, that the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC65, 441 DLR (4th) 1 [Vavilov], does not require any variation in this approach.

Section 57(1) of the Act provides only that an applicationfor the judicial review of a Minister’s decision made under s. 40 is to be pursued in the court of appeal of the province in which thecommittal of the person was ordered. Like the sections of the Federal Courts Act, RSC 1985, c F-7, discussed in Vavilov at paragraph 51,s. 57(1) does not give this Court an appellate function and hence does not engage appellate standards of review. B. Ms. Carter’s argument [21] I turn now to the substance of Ms. Carter’s submission.

Her contention, as expressed in oral argument, is that the realities of herIndigenous background and circumstances will not necessarily be taken into account in sentencing if she is convicted in the United States.She submits that this must be seen to “shock the conscience” and be a breach of s. 7 of the Charter with the result that her extraditionwould be unjust or oppressive within the meaning of s. 44(1)(

a) of the Act. As explained below, I am not persuaded by this line ofargument. [22] The Minister proceeded on the basis that Ms. Carter’s Indigenous background was a relevant consideration in his decision-making and that he must apply the principles articulated by the Supreme Court in Gladue in determining whether her surrender would beshocking to the conscience and therefore violate s. 7.

Citing United States of America v Leonard, 2012 ONCA 622, 291 CCC (3d) 549,leave to appeal to SCC refused, [Leonard], and Sheck v Canada (Minister of Justice), 2019 BCCA 364, 381 CCC (3d)161 [Sheck], the Minister indicated that “I must, as part of my decision on surrender, consider the unique background of Indigenouspersons sought for extradition in order to avoid perpetuating the systemic discrimination and disadvantage Indigenous peoples haveexperienced in the judicial and correctional systems” (at 6). Counsel for both Ms.

Carter and the Attorney General accept this as a correctstatement of the law and, as a result, I am prepared to proceed on that basis. [23] With that point about Gladue confirmed, the Minister went on to consider whether Ms. Carter’s Indigenous background wouldbe given consideration in a sentencing decision rendered in the United States. The key features of his analysis in this regard are as followsat page 12: My officials consulted with the United States Department of Justice (USDOJ) on the extent to which a person’s Indigenous status is takeninto account in the United States’ sentencing regime.

The USDOJ confirms that Indigenous status is considered, both at sentencing andduring any period of detention that may be imposed. Specifically, the USDOJ advises that Ms. Carter’s status as a First Nations woman in the Pelican Lake First Nation and the history of themistreatment of Indigenous communities may be considered as factors contributing to criminal behaviour and potentially as mitigatingfactors in sentencing. The sentencing judge will consider Ms. Carter’s background and circumstances when imposing any sentence, andmay reduce her sentence based on these factors.

The USDOJ advises that, following a conviction, a probation officer will prepare a presentence report that contains information about Ms.Carter, her criminal history, other background information, and a calculation of the advisory sentencing range under the current FederalSentencing Guidelines Manual (2018). Ms. Carter will have the ability to challenge the information and conclusions in the presentencereport. As well, she may raise any mitigating factors with the sentencing judge, including those arising from her Indigenous status, andthis may result in a reduction of her sentence. … Ms.

Carter will also have an opportunity to explain how she came to be involved in the offences and the nature of her role in the offencesas the sentencing judge must consider, among other things, the nature and circumstances of the offences and the history and characteristicsof Ms. Carter. … … The USDOJ also advises that there are a number of measures in place to accommodate Ms. Carter's Indigenous background were she to beplaced in pre-trial or post-conviction custody in the United States. [24] The Minister also considered and compared the likely sentence that Ms.

Carter would receive in Canada and the United Statesfor the offences alleged. He recounted that, according to the United States Department of Justice, Ms. Carter would face an estimatedsentence of three years and ten months to four years and nine months if she was convicted. The consideration of mitigating circumstances,including those arising from her Indigenous heritage, could result in a reduction of her sentence. As for Canada, counsel for theSaskatchewan Ministry of Justice estimated that Ms.

Carter would likely receive a sentence in the range of three to six years ofimprisonment if she were tried and convicted in Canada for offences of the sort in issue. Counsel for the Public Prosecution Service ofCanada suggested that Ms. Carter would receive a non-custodial sentence but did not reference the nature of such a sentence.

In thisregard, the Minister noted that a conditional sentence is not available for a fraud offence involving amounts in excess of $5,000. [25] In conclusion, the Minister explained at page 15 of his Response that, although there was no evidence the United States courtwould be “required to take into account Ms. Carter’s Indigenous heritage as a mitigating factor on sentence, or that the court would takejudicial notice of Canada’s mistreatment of Indigenous communities as factors contributing to criminal behaviour in the same way thatwould a Canadian court [by virtue of s. 718.2(

e) of the Criminal Code]”, it would be within the sentencing judge’s discretion to take suchfactors into consideration. He also noted that Ms. Carter would be entitled to inform the sentencing judge, if she was convicted, of

mitigating factors arising from her Indigenous background. All of this led the Minister to determine that ordering Ms. Carter’s surrenderwould not violate her s. 7 rights or, for that matter, otherwise be unjust or oppressive within the meaning of those terms as they are used ins. 44(1)(

a) of the Act. [26] In my view, nothing in the approach taken by the Minister supports the idea that his decision was unreasonable. There is nosuggestion that he misunderstood or misapprehended the governing legal principles. He reviewed the evidence thoroughly and madefindings of fact firmly grounded in it. The Minister then considered the facts and reached a defensible conclusion based on them. [27] In assessing the Minister’s decision, it is important to note that not every difference in jeopardy makes an extradition unjust oroppressive or contrary to the principles of fundamental justice.

As the Supreme Court said in M.M. v United States of America, 2015 SCC62 at para 120, [2015] 3 SCR 973, “[t]here is generally speaking nothing unjust in surrendering a person to face the legal consequences oftheir acts in the place where they were committed. Differences in legal systems — even substantial differences — should not, generallyspeaking, constitute grounds for refusing surrender”. See also, Canada v Schmidt, (SCC), [1987] 1 SCR 500 at 522.

Thus,a difference between Canadian and United States’ sentencing regimes in relation to the consideration given to an offender’s Indigenousbackground does not, in and of itself, lead to a conclusion that extradition would shock the conscience. [28] It must also be remembered that s. 718.2(

e) of the Criminal Code says only that all available sanctions other than imprisonmentthat are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for alloffenders, with particular attention to the circumstances of Indigenous offenders. While, as per Gladue and R v Ipeelee, 2012 SCC 13,[2012] 1 SCR 433 [Ipeelee], a sentencing judge dealing with an Indigenous offender must consider the systemic or background factors thatplayed a role in bringing that offender before the court, s. 718.2(

e) does not require an automatic sentence discount for such offenders. See,for example: R v Chanalquay, 2015 SKCA 141 at para 36, [2016] 4 WWR 242. Viewed from this angle, the difference between theUnited States’ sentencing regime and the Canadian regime is perhaps less dramatic than it might appear at first blush. [29] In her submissions, and relying on paragraph 36 of Ipeelee, Ms. Carter characterized the requirement for a judge to consider andgive effect to Gladue factors when sentencing as being a “constitutional obligation”.

In this way, she attempted to cast the situation thatshe would face in the District Court for the Northern District of Georgia, which operates without an equivalent to s. 718.2(

e) of theCriminal Code, as being something that would shock the conscience, violate s. 7 of the Charter and hence indicate that her surrenderwould be unjust or oppressive within the meaning of s. 44(1)(

a) of the Act. [30] In my respectful view, this argument involves an unjustifiably broad reading of paragraph 36 of Ipeelee. In that paragraph,LeBel J. explained that the fundamental principle of sentencing is that a sentence must be proportionate to both the gravity of the offenceand the degree of responsibility of the offender. He indicated that proportionality has a “constitutional dimension” in that s. 12 of theCharter prohibits the imposition of grossly disproportionate sentences that would outrage society’s standards of decency.

He alsoobserved that, in a similar vein, “proportionality in sentencing could aptly be described as a principle of fundamental justice under s. 7 ofthe Charter”. There is no suggestion in any of this that s. 718.2(

e) of the Criminal Code is somehow constitutionally mandated or that asentencing judge cannot respect or satisfy the principle of proportionality unless he or she operates under a statutory regime that features aprovision like s. 718.2(e), as interpreted by Gladue and Ipeelee. [31] I would note as well that the situation in this case is readily distinguishable from that in Leonard. There, the Court of Appealfor Ontario set aside a committal order with respect to Indigenous offenders on the basis of two factors.

The first was that the Minister’sreasoning had been grounded on the proposition that considering disadvantages endured by the applicants on account of the systemicwrongs they had suffered because of their Indigenous backgrounds would be “unfair” to other accused persons. The second was that theMinister had wrongly proceeded on the basis that failing to surrender the applicants would allow them to escape prosecution altogether.Neither of these concerns are present in the Minister’s reasoning in the instant case.

He engaged in a considered analysis of relevantGladue factors and accepted that it was his duty to do so. The Minister also examined the possibility of prosecuting Ms. Carter in Canadaand found that Canada had no jurisdiction in this regard. Ms. Carter does not dispute that conclusion. [32] The decision of the Court of Appeal for British Columbia in Sheck is also distinguishable. There, the United States sought theextradition of a Métis man to face charges related to the laundering of several millions of dollars of drug trafficking proceeds.

The Courtset aside the Minister’s extradition order because she had concluded, without any evidentiary basis for so doing, that Mr. Sheck would beable to advance his Aboriginal background as a mitigating factor that could result in a sentence reduction if he were prosecuted andsentenced in the United States. The Court found that the Minister had also erred by failing to consider the effect of Mr. Sheck’sIndigenous status on the likely sentence he would receive in Canada for offences in the nature of those being alleged in the United States.Neither of these points is applicable here.

The Minister had a solid evidentiary basis for concluding that Ms. Carter would be able to raisefactors tied to her Indigenous background as mitigating circumstances in a United States’ sentencing proceeding and that such factorscould result in a lower sentence. Further, there is no suggestion here that the Minister did not take Gladue considerations into accountwhen he examined the likely sentence that Ms.

Carter might face in Canada if she were tried and convicted for crimes similar to thosealleged in the United States. [33] This case is much more like Martin v Canada (Minister of Justice), 2017 BCCA 220, 352 CCC (3d) 193, than it is likeLeonard or Sheck. In that case, Mr. Martin sought judicial review of the Minister’s surrender decision by contending that the Ministershould have taken account of the fact that, in the United States, “there is no codified recognition of the need to sentence Aboriginaloffenders differently” (at para 68). The Court of Appeal for British Columbia rejected his argument.

As explained in Sheck, it held that theextradition of an Indigenous person is not foreclosed because the state requesting extradition has different and less ameliorative sentencingprinciples for individual offenders than does Canada. [34] In the end, therefore, I conclude that Ms. Carter has not established that the Minister’s decision to order her surrender wasunreasonable.

V. CONCLUSION [ 35 ] Ms. Carter’s judicial review application must be dismissed. There will be no order with respect to costs. “Richards C.J.S.” Richards C.J.S. I concur. “Schwann J.A.” Schwann J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.