Clarke v Canada (Attorney General), 2023 SKCA 84

Court of Appeal for Saskatchewan Docket: CACR3551 Citation: Clarke v Canada (Attorney General) , 2023 SKCA 84 Date: 2023-08-09 Between: James Henry Clarke Applicant And The Attorney General of Canada (on behalf of the United Kingdom of Great Britain and Northern Ireland) Respondent Before: Leurer, Barrington-Foote and Kalmakoff JJ.A. Disposition: Application denied Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr. Justice Barrington-Foote The Honourable Mr.

Justice Kalmakoff On appeal from: QBG 1000 of 2021, Saskatoon Appeal heard: February 24, 2023 Counsel: Christopher Veeman for the Appellant Sean Sass and Jayme Anton for the Respondent Leurer J.A. I. INTRODUCTION [ 1 ] The United Kingdom [UK] is seeking the extradition of James Clarke so that he may face trial for sexually assaulting two children in his care. The Minister of Justice and Attorney General of Canada [Minister] has ordered, pursuant to s. 40 of the Extradition Act , SC 1999, c 18 , that Mr.

Clarke surrender himself so that he may be sent to the UK [ Minister’s Decision ]. [ 2 ] Section 57(1) of the Extradition Act requires that an application for judicial review of the Minister’s Decision must be brought in the “court of appeal of the province in which the committal of the person was ordered”. In accordance with this provision, Mr. Clarke has applied to this Court for an order quashing the Minister’s Decision . [ 3 ] In the mid-1980s, Mr. Clarke admitted to having abused the two children when he was an employee at separate children’s homes in Northern Ireland in the late 1960s and early 1970s.

However, officials determined, when that admission was given, not to lay charges because the incidents were then considered to be stale-dated. More recently, the relevant UK officials have concluded that this decision was wrong and have proceeded with these charges. [ 4 ] Mr. Clarke says that this change in position amounts to an abuse of process and a breach of his Charter rights.

He also asserts that his advanced age, his serious health problems and other personal circumstances mean that the Minister should have found that his “surrender would be unjust or oppressive having regard to all the relevant circumstances” ( Extradition Act , s. 44(1) (a)). [ 5 ] The Minister considered, but rejected, the same arguments Mr. Clarke makes in this Court. This Court’s task is to review the Minister’s Decision to ensure that it is reasonable. In my view, it is. Accordingly, Mr. Clarke’s application must be dismissed. My reasons follow. II. BACKGROUND A. The extradition request [ 6 ] Mr.

Clarke was born in North Belfast in 1942. He is a dual citizen of Canada and the UK. He moved to Canada in the late 1970s. [ 7 ] In support of its extradition request, UK officials provided a record of case, which included a document summarizing the evidence available for use in the prosecution of the case against Mr. Clarke. In it, the relevant authority certified that the evidence is sufficient under UK laws to justify prosecution. In accordance with s. 32(1) (

a) of the Extradition Act , this

summary shall “be admitted as evidence” in the extradition proceedings. [ 8 ] The

summary alleges that between January 1, 1966, and January 1, 1972, Mr. Clarke touched a youth [W.B.] in a sexual way on two occasions. The first assault took place while W.B. was in the care of a children’s home where Mr. Clarke was the Assistant Head. According to W.B., Mr. Clarke came into his bed. Mr. Clarke laid beside him, and began to touch W.B., including by rubbing W.B.’s penis over his clothing. This stopped when someone came upstairs. On a different occasion W.B. was at Mr. Clarke’s family home. Mr.

Clarke came into W.B.’s bed, masturbated W.B., and placed W.B.’s hand on his penis so he could also be masturbated. W.B. was aged around 13 years when these events occurred. [ 9 ] W.B. reported these incidents to UK police in 1980. An investigation ensued. In June of 1982, an officer travelled to Canada and interviewed Mr. Clarke. Mr. Clarke told the officer that he recalled sleeping in a bed beside W.B. but denied the alleged indecent assault. Mr. Clarke was interviewed again by UK police about other matters in July of 1985. During this interview, Mr.

Clarke admitted to masturbating W.B. at his family home but claimed to not recall the alleged incident at the children’s home.

[ 10 ] The UK police submitted a file to the office of the Director of Public Prosecutions for Northern Ireland [DPP] and a decision was made not to prosecute Mr. Clarke. The recorded reason was that the passage of time had rendered any proceedings “stale and inappropriate”. [ 11 ] In August of 1985, Mr. Clarke wrote to the officer who had interviewed him. Mr. Clarke indicated that he had been going over events in his mind and could recall an incident where he masturbated another youth, P.B. The police acted on this admission. They traced P.B., who then provided a written statement a few weeks later.

The incident was not referred by the police to the DPP because of the earlier decision that had been taken not to prosecute for the offences against W.B. due to the passage of time. [ 12 ] Mr. Clarke was sent a letter in November of 1985 written by the investigating officer advising that the facts had been reported to the Crime Branch of the Royal Ulster Constabulary Headquarters. In the letter, Mr.

Clarke was told that the Crime Branch had “studied the papers and have decided that the particular act is not now punishable in law by reason of the time factor involved”. [ 13 ] In 2012, the Inquiry into Historical Institutional Abuse in Northern Ireland [Inquiry] was established to investigate the abuse of children who had lived in institutions in Northern Ireland between 1922 and 1995. Public hearings began in 2014. The Inquiry concluded its hearings in July of 2016, and its report was published on January 20, 2017.

Based on this report and evidence given to the Inquiry, the British Broadcasting Corporation [BBC] produced a television documentary about the allegations against Mr. Clarke. During an interview, Mr. Clarke admitted to a BBC journalist that he had indecently assaulted teenage boys in care homes in Northern Ireland. This acknowledgment led the Public Prosecution Service for Northern Ireland [PPSNI] to ask the police to conduct a fresh investigation into these matters. [ 14 ] A police file was submitted to the PPSNI in July of 2018.

It concluded that “the decision taken by the office of the [DPP] in 1985 not to prosecute the offences against [W.B.] and the subsequent decision taken by police in respect of the offences against [P.B.] were wrong”. [ 15 ] On June 17, 2019, UK authorities determined to prosecute Mr. Clarke on three counts of indecent assault against a male, contrary to s. 62 of the Offences Against the Person Act, 1861 (UK) 24 & 25 Vict, c 100.

On August 26, 2021, an official with appropriate delegated authority issued an “authority to proceed” pursuant to s. 15(1) of the Extradition Act , allowing extradition proceedings to go ahead. The authority to proceed states that the conduct alleged in the UK charges corresponds to the Canadian offence of sexual interference, contrary to s. 151 of the Criminal Code . [ 16 ] Mr. Clarke consented to his committal for extradition on March 31, 2022.

This meant that he agreed that there was sufficient admissible evidence of “conduct that, had it occurred in Canada, would justify committal for trial in Canada” for the offences ( Extradition Act , s. 29(1) (a)). B. Mr. Clarke’s submission to the Minister [ 17 ] Section 40(1) of the Extradition Act states that the “Minister may, within a period of 90 days after the date of a person’s committal to await surrender, personally order that the person be surrendered” to an extradition partner.

Section 43(1) allows a person facing extradition to “make submissions to the Minister in respect of any ground that would be relevant to the Minister in making a decision in respect of the surrender of the person”. Mr. Clarke provided the Minister with an affidavit and written submissions prepared by his counsel. [ 18 ] In his affidavit, Mr. Clarke explained his personal and family background, which included the fact that he was the victim of abuse as a child. He reviewed his employment history and the events that led him to emigrate to Canada. [ 19 ] Mr.

Clarke also provided a detailed overview of the circumstances that led to his previous acknowledgments of his assaults of W.B. and P.B. As part of this explanation, he appended copies of his communications with UK authorities. He stated that he was aware when he first confessed to assaulting W.B. that he “knew that doing so was highly likely to lead to [him] being charged and being sentenced to prison”. However, he said that, at the time, he was willing to go to prison to try to address this incident from his past.

He stated that, after he had admitted to assaulting P.B., he “again expected to be charged, and potentially jailed”. He also explained the circumstances surrounding the confessions he had made to the BBC and efforts he had taken to speak to both W.B. and P.B. All of this provided context for his statement that, while he has “not trumpeted these incidents from [his] past”, he has done his “best to be open with the authorities” and has “demonstrated a willingness to pay for [his] offences” and show meaningful remorse. [ 20 ] Much of the rest of Mr.

Clarke’s affidavit set out why, from his perspective, it would be unjust or oppressive having regard to all the relevant circumstances that he now be ordered to surrender for extradition after all of these years. In this regard, he explained that, in 1985, he was 43 years old and in good health and therefore “would have been much better able to physically tolerate jail time”. In contrast, he said, at the time of his affidavit, he was just short of his 80th birthday and in overall poor heath, which he detailed. Mr.

Clarke supported his statements with a letter from his family doctor and letters from community members. [ 21 ] Mr. Clarke further explained how he is responsible for the care of his spouse, Irene. He said that she is showing signs of dementia, and he is required to “be careful to keep tabs on what she is doing – particularly in the kitchen, to avoid any major dangers”. Mr. Clarke and Irene also have an adult child who has special needs and lives with them. Although the child has a job through SaskAbilities, he is “unable to care for himself or live independently”. Mr.

Clarke explained that, if he were to be extradited to the UK, the child “would be completely dependent on Irene, who is turning 82, is frail, and has memory issues”. Finally, Mr. Clarke and Irene have a second child, who also has special needs. However, Mr. Clarke did not assert that this child is directly dependent on himself or Irene except for meals, saying the child is unable to cook for himself. [ 22 ] In his written submission to the Minister, Mr. Clarke focused on the requirement, found in s. 44(1) (

a) of the Extradition Act , that the Minister shall refuse to make a surrender order if it would be unjust or oppressive having regard to all the relevant circumstances. Under the heading “Extreme Delay and Abuse of Process”, Mr. Clarke reproduced s. 7 of the Charter . Throughout his submission, Mr. Clarke reviewed many legal authorities.

C. Other material before the Minister [23] In addition to having before him Mr. Clarke’s affidavit and submissions, the Minister was provided with a “Summary of theCase”, “Supplemental

Summary of the Case” and “Second Supplemental

Summary of the Case”, prepared by senior counsel atInternational Assistance Group, Department of Justice Canada. Together, these documents provided an overview of the extradition requestand of Mr. Clarke’s situation and submissions. They also summarized information obtained from UK authorities relating to their decisionto prosecute Mr. Clarke, Mr. Clarke’s ability to raise arguments before the Northern Ireland courts that his prosecution constitutes anabuse of process, as well as factors relating to the potential sentence Mr. Clarke may receive if convicted of these offences.

Finally, thesubmission provided information concerning Mr. Clarke’s health situation, how his health might be managed by prison authorities were heto be imprisoned in the UK, as well as what supports might exist in Saskatchewan for Mr. Clarke’s spouse and adult children. D. The Minister’s Decision [24] The Minister’s Decision is contained in a letter to Mr. Clarke’s counsel dated August 25, 2022. After providing a lengthynarrative as to the background of the matter, the Minister found that he was required to answer the following question (at 3): Whether ordering Mr.

Clarke’s surrender would be unjust or oppressive, or contrary to the Canadian Charter of Rights and Freedoms(Charter) based on the following factors: - The delay by the United Kingdom in prosecuting Mr. Clarke; - Mr. Clarke’s advanced age and health issues; and - Mr. Clarke’s background and personal circumstances. [25] Following the outline that is established by this statement, the Minister then considered the matter under the subheadings“Delay and Purported Abuse of Process by the United Kingdom”, “Mr. Clarke’s Advanced Age and Health Issues” and “Mr. Clarke’sBackground and Personal Circumstances”.

The Minister’s Decision, in relation to the central questions raised by Mr. Clarke, concluded asfollows (at 13): Having considered all the circumstances of this case, and in light of all of the information received, I conclude that Mr. Clarke’s surrenderto the United Kingdom for prosecution on the offences for which his extradition is sought would not be unjust or oppressive, nor would itresult in a violation of his Charter rights. [26] I will review the details of the Minister’s reasons in the context of my analysis of the arguments in this appeal.

At this juncture,I would point out only that one of the other questions the Minister considered dealt with speciality assurances. A specialty assurance is apromise by a state seeking an extradition that the person will only stand trial for the charges that are identified and supported by evidencein the extradition request. Canada had received such an assurance from the UK in this case and the order ultimately made by the Ministerwas “subject to the assurance regarding specialty” (at 14).

Accordingly, the parts of the Minister’s Decision addressing specialtyassurances are not at issue in these proceedings and are not considered in this judgment. III. STANDARD OF REVIEW [27] The Minister’s Decision is to be reviewed by applying the standard of reasonableness: Canada (Minister of Citizenship andImmigration) v Vavilov, 2019 SCC 65 at paras 23 and 143, [2019] 4 SCR 653 [Vavilov].

This aligns with the standard of review that wasapplied prior to Vavilov: Lake v Canada (Minister of Justice), 2008 SCC 23 at para 34, [2008] 1 SCR 761 [Lake]; Carter v Canada(Attorney General), 2021 SKCA 91 at para 17 [Carter]; and United States v Cavan, 2015 ONCA 664 at para 83, 127 OR (3d) 430[Cavan]. [28] The parties also specifically accept that the reasonableness standard applies when an allegation is made that an order ofsurrender will violate s. 7 of the Charter (see: Carter at para 19, quoting Lake at para 32 and India v Badesha, 2017 SCC 44 at para 57,[2017] 2 SCR 127).

I note that Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, described an approach to reasonablenessreview where the issue relates to the impact of an administrative decision on Charter rights or values that has certain unique features. Thatapproach adopted aspects of the test specified by R v Oakes, (SCC), [1986] 1 SCR 103, which is used to determinewhether a violation of the Charter by a law has been justified as a reasonable limit under s. 1 of the Charter.

The question of the potentialeffect of the Doré approach, particularly in light of Vavilov, was not identified by the parties but by the Court at the hearing of this appeal.I have concluded that, in the circumstances of this case, there is no need to explore these issues further or to deal separately with thequestions raised by Doré, as the result would be the same regardless, for substantially the same reasons. Any issues that may arise fromthe application of Doré in an extradition context are best left to an occasion where it matters to the outcome and the Court has the benefitof full argument. IV.

ISSUES [29] In his factum, Mr. Clarke identifies three issues for consideration by this Court: 1. Whether the Minister unreasonably refused to deny surrender as Northern Ireland authorities should have been considered estoppedfrom raising the question of whether Mr. Clarke’s actions were “punishable in law”. 2. Whether Northern Ireland’s extreme delay, combined with the unjustified reversal of the decision on whether the allegations werepunishable at law, meant that the Minister acted unreasonably in refusing surrender.

3. Whether the Minister unreasonably failed to deny surrender in light of 1 and 2, considered holistically in light of Mr. Clarke’sserious health concerns and his family responsibilities. [30] I accept these questions as providing an appropriate framework to decide Mr. Clarke’s application. V. ANALYSIS A. Issue estoppel [31] Mr. Clarke’s first argument is grounded in the decisions taken by Northern Ireland authorities in the 1980s not to prosecute himfor the offences against W.B. and P.B.

As discussed, in relation to the first of these, the DPP had then concluded that the passage of timerendered any proceedings involving W.B. to be “stale and inappropriate”. With respect to the second, the Crime Branch had determined,on its own initiative, not to present P.B.’s complaint to the DPP. [32] In this Court, Mr. Clarke advances the proposition that he “was and is entitled to rely on [these determinations] in his favour”.He says, further, that the “principle of issue estoppel now prevents this issue from being resurrected”. In making his arguments under thishead, Mr.

Clarke relies on the following passage from the judgment of McLachlin C.J.C. in R v Mahalingan, 2008 SCC 63, [2008] 3 SCR316: [38] Like most principles of criminal law that have been repeatedly endorsed by the Court, issue estoppel has been sustained over theyears because, whatever its problems, it serves the ends of justice.

Issue estoppel serves three purposes, all integral to a fair criminaljustice system: (1) fairness to the accused who should not be called upon to answer questions already determined in his or her favour;(2) the integrity and coherence of the criminal law; and (3) the institutional values of judicial finality and economy. While these threepurposes have strong counterparts in the civil law context, they take on particular nuances in the criminal sphere. With that in mind, I willconsider each in turn. (Emphasis added by Mr. Clarke) [33] Mr. Clarke’s reliance on issue estoppel is misplaced.

The doctrine is concerned “with particular issues arising in two differentpieces of litigation” (Mahalingan at para 17). The gravamen of what it guards against is relitigation. As McLachlin C.J.C. explained inMahalingan, when issue estoppel is raised, the court must ask if the question before it “is the same as an issue decided in a previousproceeding” (at para 16, emphasis added). It is for this reason that, to quote from the very passage from that case relied upon byMr.

Clarke, fairness directs that an accused “should not be called upon to answer questions already determined in his or her favour” andthat issue estoppel serves “the institutional values of judicial finality and economy” (at para 38, emphasis added). [34] In this case, there has been no judicial determination of any of the issues associated with Mr. Clarke’s alleged criminal liability.Rather, two different levels of Northern Ireland authorities determined not to prosecute him when the complaints surfaced against him inthe mid-1980s.

Accordingly, apart from whether issue estoppel is something that is only properly considered by the UK court that hearsthe charges against Mr. Clarke, the doctrine, as it is known under Canadian law at least, simply does not apply in these circumstances. [35] For this reason, I conclude that it was not unreasonable for the Minister not to have found that Northern Ireland authoritiesshould have concluded that issue estoppel prevented the resurrection of these criminal charges. This determination is sufficient to disposeof Mr. Clarke’s argument under this head.

As a result, I do not need to decide if there are other reasons to reject the application of issueestoppel, such as the fact that Mr. Clarke made no explicit reference to it in his submissions to the Minister. B. Process arguments 1. The issue [36] Mr. Clarke’s second argument is that “Northern Ireland’s extreme delay, combined with the unjustified reversal of the decisionon whether the allegations were punishable at law, meant that the Minister acted unreasonably in refusing surrender”. This submission isbased on the allegation that the Minister erred in failing to find that Mr.

Clarke’s surrender would offend his s. 7 Charter rights, and that itwould be unjust and oppressive regardless of whether that was so. [37] It is common ground that the Minister’s Decision is discretionary. The key legal constraint at play in this case is s. 44(1)(

a) ofthe Extradition Act, which states 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[.] [38] In Canada (Justice) v Fischbacher, 2009 SCC 46 at para 37, [2009] 3 SCR 170 [Fischbacher], Charron J., citing United Statesof America v Johnson (2002), (ON CA), 62 OR (3d) 327 (CA) at para 45, wrote that this provision requires that the“Minister must consider all relevant circumstances, singly and in combination, to determine whether surrender would be unjust oroppressive”.

She further explained that relevance is contextual and identified some of the factors that may be in play in a particular case,as follows: [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 country

before 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 [Extradition Treaty between Canadaand the United States of America, Can.

T.S. 1976 No. 3, in force March 22, 1976] and as a responsible member of the internationalcommunity: see Bonamie, Re, 2001 ABCA 267, 293 A.R. 201, at para. 54, and United States of America v. Cobb, 2001 SCC 19, [2001] 1S.C.R. 587, at para. 34. [39] The decision as to whether a factor is relevant, and the weight to be assigned to it, is also for the Minister.

The question for thisCourt is not whether it would have assigned the same weight to various factors, but rather whether the decision “bears the hallmarks ofreasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legalconstraints that bear on the decision” (Vavilov at para 99). [40] Mr. Clarke alleges that the Minister erred in finding that his surrender would not be unjust and oppressive within the meaningof s. 44(1)(

a) of the Extradition Act and also erred in finding that it would not constitute a breach of his rights under s. 7 of the Charter.The Charter is a constraint that dictates the limits and contours of the space in which the Minister may act and the types of solutions theMinister may adopt. Justice Charron explained the relationship between s. 7 of the Charter and the s. 44(1)(a) “unjust and oppressive” testin Fischbacher, as follows: [39] In carrying out the analysis under s. 44(1)(

a) of the Act, the “relevant circumstances” may also include an alleged breach of therights of the person sought under the Charter. As La Forest J. wrote in Canada v. Schmidt, (SCC), [1987] 1 S.C.R. 500, atp. 522, “in some circumstances the manner in which the foreign state will deal with the fugitive on surrender . . . may be such that itwould violate the principles of fundamental justice to surrender an accused under those circumstances”. The Court elaborated on this testin United States v.

Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, stating, at para. 68: “The rule is not that departures from fundamental justiceare to be tolerated unless in a particular case it shocks the conscience.

An extradition that violates the principles of fundamental justicewill always shock the conscience.” (Emphasis deleted.) In turn, as recognized by this Court in Lake, at para. 24, where surrender is foundto be contrary to the principles of fundamental justice protected by s. 7 of the Charter, it will also be unjust and oppressive under s. 44(1)(a), and the Minister must refuse surrender. … See also: Carter at para 15. [41] Based on this guidance, I will begin my consideration of this issue by reviewing the Minister’s Decision. I will then address thespecific arguments made by Mr. Clarke under this heading. 2.

The Minister’s Decision [42] After dealing with various preliminary matters, the Minister stated that his “discretion to refuse surrender is justifiable only oncompelling grounds related to specific provisions of the [Extradition Act], or where surrender would ‘shock the conscience of Canadians’or otherwise be contrary to the principles of fundamental justice as guaranteed by the Charter”, or where Mr. Clarke faced prosecution foran offence other than that for which extradition has been requested. In doing so, he referred to United States v Burns, 2001 SCC 7, [2001]1 SCR 283 [Burns].

The Minister then introduced his discussion under the heading “Surrender is not Unjust or Oppressive or Contrary toSection 7 of the Charter” by identifying in even greater specificity the matters he must consider (at 4): Pursuant to section 44(1)(

a) of the Act, I must refuse to surrender a person sought for extradition if I conclude that, after balancing all ofthe relevant circumstances of the case, surrender would be “unjust or oppressive having regard to all the relevant circumstances.” As well,I have an obligation to consider the Charter rights of the person sought and, in particular, to assess whether surrender would breach theprinciples of fundamental justice under

section 7. In this regard, I must determine whether Mr. Clarke’s surrender to the United Kingdomwould “shock the conscience” of Canadians or be “simply unacceptable” (Canada (Justice) v Fischbacher, 2009 SCC 46; Burns). [43] Mr. Clarke had relied upon several authorities to assert that “extreme delay and the associated abuse of process are unjust andoppressive”. The Minister accepted that these cases “recognize that delay in proceedings is a relevant consideration in the exercise of [his]discretion to surrender”. However, he determined that they do not, as Mr.

Clarke asserted, “stand as examples of circumstances whereextreme delay was found to be unjust or oppressive”. The Minister stated that the “cases also do not relate to sexual offences, theprosecution of which requires special consideration as discussed below”. He concluded that the “cases do, however, demonstrate thatconsideration must be given to the particular circumstances and context of delay in assessing whether it renders surrender unjust oroppressive” (at 5). [44] The Minister next reviewed case law pertaining to abuse of process and alleged Charter breaches in an extradition context.

Atthe outset of this analysis, he observed that “cases of foreign delay which would attract

section 7 Charter concerns would be those rarecases occasioned by, or amounting to, an abuse of process; those extreme circumstances that would make surrender ‘simplyunacceptable’”, quoting Argentina v Mellino, (SCC), [1987] 1 SCR 536.

He also noted that “the Supreme Court ofCanada has held that a stay of proceedings for an abuse of process will be rare and should be granted only in the ‘clearest of cases’” (at 5,referring to R v Babos, 2014 SCC 16, [2014] 1 SCR 309; United States v Cobb, 2001 SCC 19, [2001] 1 SCR 587; and R v Conway, (SCC), [1989] 1 SCR 1659). [45] As part of his review of legal principles, the Minister also identified that, in R v Z(MJ), 2022 MBCA 61, 416 CCC (3d) 91, theManitoba Court of Appeal had found “egregious police misconduct in investigating allegations of historical sexual assault of three childrenconstituted an abuse of process”.

The Minister observed that, in that case, the Court nonetheless “declined to issue a stay of proceeding onthe basis that it was not the clearest of cases”, finding that “society’s interest in entering convictions and the seriousness of the chargesoutweighed the state misconduct” (at 5). [46] The Minister took the view that a “claim of abuse of process or Charter breach may fall into one of two categories: (1) wherethe impugned conduct of state actors, whether Canadian or foreign, compromises the fairness of the extradition process; or (2) where thereis no threat to the fairness of the extradition process, but the impugned state conduct is so offensive to societal notions of fair play anddecency that surrendering the person sought for extradition would nevertheless undermine the extradition process” (at 5–6).

He also noted

that while “misconduct and/or bad faith on the part of state actors is often a component of an abuse claim, a finding of abuse maynevertheless be made in the absence of misconduct or bad faith” (at 6). [47] Finally, in his

summary of general legal principles, the Minister concluded, with reference to several authorities, that “in theextradition context, delay preceding an extradition request is analogous to pre-charge delay in Canada, and will only be considered inthose exceptional circumstances where there is evidence that the delay has caused actual prejudice in the extradition proceedings beforethe court or the Minister of Justice” (at 6). [48] Next, the Minister stated that, because of Mr. Clarke’s submissions, additional information had been obtained from the PPSNIregarding the delay.

He recounted how the PPSNI had advised that, if Mr. Clarke is extradited to the UK, he will be entitled to apply tothe court for a stay of proceedings as a result of any alleged abuse of process. The PPSNI had also advised that, under UK law, “there aretwo main categories of abuse of process: where the court concludes that an accused cannot receive a fair trial or that it would be unfair foran accused to be tried”. The Minister then reviewed some of the applicable principles relating to these ideas as provided to him by thePPSNI. Finally, the Minister wrote that the PPSNI had also advised that, if Mr.

Clarke were extradited to the UK and convicted of theseoffences, “delay will be an issue to be considered on sentencing, and may result in a reduction or suspension of a custodial sentence, giventhe particular circumstances in this case” (at 6). [49] Having provided this background, the Minister turned to consider whether he should refuse to order Mr. Clarke’s surrenderbecause of the alleged abuse of process or because of a breach of his s. 7 Charter rights.

He gave several interrelated reasons forconcluding that he should order the surrender. [50] The Minister began this part of his analysis by taking account of the explanation offered by UK authorities for deciding toproceed with the charges. He observed that “the PPSNI chose to reconsider” its earlier decision by the DPP not to prosecute Mr. Clarke inrelation to the allegations involving W.B. and the police decision not to refer the complaint involving P.B. to that office (at 6). He foundthat the “reconsideration of whether to prosecute Mr.

Clarke was a decision made by the PPSNI in the exercise of their prosecutorialdiscretion”. He discussed R v Beare, (SCC), [1988] 2 SCR 387, and R v Anderson, 2014 SCC 41, [2014] 2 SCR 167[Anderson], citing the latter for the propositions that the “existence of prosecutorial discretion does not offend the principles offundamental justice” and that courts “have also recognized that matters of prosecutorial discretion are not reviewable absent an abuse ofprocess”. He concluded on this point by saying that, in light of the information provided by the PPSNI, he was “satisfied that the requestfor Mr.

Clarke’s extradition is not abusive or made for an improper purpose” (at 7). [51] The Minister took stock of society’s interest in prosecuting crimes of the nature Mr. Clarke is alleged to have committed. Hefound that “the long-term psychological and emotional harm to victims of sexual offences and the societal interest in protecting children,the most vulnerable members of our society, provide compelling reasons for pursuing prosecution of the perpetrators of these offences,notwithstanding the passage of time”. He also considered the interests of the complainants.

He described the “legitimate interest” thatvictims of sexual assault offences have in seeing those harmed by them face justice (at 7). He noted the seriousness of the allegations, theallegation that Mr. Clarke had abused his position of trust and authority, and that Mr. Clarke had allegedly committed multiple offences. [52] The Minister had regard for norms of international relations. He concluded that “refusal of surrender [would be] deeplyinconsistent with the principles of international cooperation” (at 7). [53] The Minister also weighed whether Mr. Clarke’s ability to defend himself had been compromised.

He observed that, althoughMr. Clarke asserted that witnesses could not be expected to accurately recall events from so long ago, Mr. Clarke had not suggested thatdefence evidence was now unavailable because of the passage of time. He also noted that the PPSNI had confirmed that “the prosecutionis viable and that both victims are willing to testify in criminal proceedings” and that “Mr. Clarke confessed to sexually touching bothvictims” (at 8). [54] Next, the Minister found no evidence that the extradition process itself had been compromised because of delay. He alsoconsidered that Mr.

Clarke would be able to raise issues of delay and abuse of process in the criminal proceedings themselves. Heobserved that “proceedings may be stayed where the United Kingdom courts conclude that an accused cannot receive a fair trial or that itwould be unfair to try an accused in the particular circumstances”. He found that “issues raised with respect to delay and state misconductare appropriately raised before and adjudicated by the United Kingdom as they are best-situated to apply their law, having regard to therelevant policy and societal interests”.

Finally, the Minister considered the advice of the UK authorities, who had stated that “delay in thiscase is a relevant consideration on sentencing if Mr. Clarke were convicted, and that this may lead to a reduced or suspended sentence” (at8). [55] The Minister concluded his analysis in relation to abuse-related issues, as follows (at 8): In all of the circumstances, I am of the view that the United Kingdom authorities have sought Mr. Clarke’s extradition in good faith. In theabsence of evidence of conduct that would amount to an abuse of process, and in light of the fact that Mr.

Clarke can raise this argument attrial in the United Kingdom, I am of the view that the claims regarding delay are not a valid basis for concluding that Mr. Clarke’ssurrender would be unjust or oppressive, or contrary to

section 7 of the Charter. 3. Prosecutorial discretion [56] Mr. Clarke’s first submission under this general heading is that the “Minister’s acceptance of the Northern Ireland decision toresurrect charges based on the exercise of prosecutorial discretion was unreasonable”. He bases this argument in the following passagefrom the Minister’s Decision (at 6–7): While I acknowledge that there has been significant delay in this case as a result of the initial decision to not prosecute Mr.

Clarke, I ammindful of the explanation provided by the United Kingdom authorities that the PPSNI chose to reconsider that decision in light of thepublication of a report in 2016 by the Inquiry into Historical Institutional Abuse and a later television documentary, wherein Mr. Clarkeagain admitted his indecent assault of teenage boys in Northern Ireland. In addition, the PPSNI became aware of the allegations by [P.B.],whose statement had not been referred to the DPP for consideration when made in 1985. As a result of this additional information, the

PPSNI reconsidered their initial decision and they took steps to prosecute Mr. Clarke. … In Anderson the Supreme Court of Canada reaffirmed that the existence of prosecutorial discretion does not offend the principles offundamental justice. Courts have also recognized that matters of prosecutorial discretion are not reviewable absent an abuse of process. In light of the information provided by the PPSNI, I am satisfied that the request for Mr. Clarke’s extradition is not abusive or made for animproper purpose.

I note that the long-term psychological and emotional harm to victims of sexual offences and the societal interest inprotecting children, the most vulnerable members of our society, provide compelling reasons for pursuing prosecution of the perpetratorsof these offences, notwithstanding the passage of time. [57] In making this argument, Mr. Clarke refers to the categories of abuse of process as summarized in Cavan: [51] In domestic proceedings, we recognize two categories of abuse of process. Each would also be captured by s. 7 of the Charter.Each is rooted in state conduct.

The main category encompasses state conduct that affects the fairness of the trial. The residual categorytakes in state conduct that contravenes fundamental notions of justice and thus undermines the integrity of the judicial process: R. v.O’Connor, (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, at para. 73; R. v. Nixon, [2011] 2 S.C.R. 566, [2011] S.C.J.No. 34, 2011 SCC 34, at para. 36; R. v. Babos, [2014] 1 S.C.R. 309, [2014] S.C.J. No. 16, 2014 SCC 16, at para. 31. [58] In this case, Mr.

Clarke’s foundational proposition is that the Northern Ireland prosecutors’ decision to resurrect the chargesagainst him fall within the residual category of abuse of process summarized in Cavan because it contravenes fundamental notions ofjustice and thus undermines the integrity of the judicial process. He argues that the Minister’s Decision is unreasonable for notrecognizing this abuse of process. [59] I accept that, while entitled to considerable deference, prosecutorial discretion is not immune from all judicial oversight.

Asnoted in Anderson, with reference to many other authorities, “prosecutorial discretion is reviewable for abuse of process” (at para 48). Itwould, therefore, be circular reasoning to conclude that the fact the decision by Northern Ireland prosecutors to proceed with chargesagainst Mr. Clarke now was a discretionary one in some way immunized the Minister’s Decision from scrutiny. However, I am satisfiedthat the Minister did not reason in this way. [60] I begin my explanation of this conclusion by pointing out that Mr.

Clarke removed from the middle of the passage of theMinister’s Decision from which he quoted, the following statements made by the Minister (at 7): In my view, the reconsideration of whether to prosecute Mr. Clarke was a decision made by the PPSNI in the exercise of theirprosecutorial discretion. The Supreme Court of Canada has repeatedly affirmed that “prosecutorial discretion is a necessary part of aproperly functioning criminal justice system” (R v Anderson, 2014 SCC 41).

Further, in R v Beare, (SCC), [1988] 2 SCR387, the Supreme Court of Canada recognized that a criminal justice system without prosecutorial discretion would be “unworkablycomplex and rigid.” The Court noted that “police necessarily exercise discretion in deciding when to lay charges, to arrest and to conductincidental searches, as prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed byway of indictment or

summary conviction, launch an appeal and so on.” [61] Mr. Clarke does not contend that these statements of law by the Minister evince error. I attach significance to them becausethey identify the Minister’s attention to the importance of discretion in the proper functioning of the criminal justice system. However,they do not suggest in any way that the Minister was of the view that the mere fact that UK prosecutors enjoyed such discretion that theirdecisions were immune from scrutiny by him in the exercise of his own discretion under s. 44(1)(

a) of the Extradition Act. [62] The omitted passage also reveals that, in addition to the other factors referred to in the parts of the Minister’s Decision quotedby Mr. Clarke, the Minister assessed the motivations of the prosecutorial authorities in reversing the earlier decision not to lay charges.Specifically, the Minister identified that, while “misconduct and/or bad faith on the part of state actors is often a component of an abuseclaim, a finding of abuse may nevertheless be made in the absence of misconduct or bad faith” (at 6).

Nonetheless, the existence of badfaith, ill-motive or the exercise of discretion for improper reasons remains relevant to an inquiry as to whether conduct amounts to anabuse of process. It was therefore appropriate for the Minister to consider why the relevant UK authorities had now decided to prosecuteMr. Clarke.

This renders directly relevant, and appropriate, the Minister’s decision to take into account the fact that the PPSNI had chosento reconsider the earlier decisions “in light of the publication of a report in [2017] by the Inquiry into Historical Institutional Abuse and alater television documentary, wherein Mr.

Clarke again admitted his indecent assault of teenage boys in Northern Ireland” and becauseprosecutors had become “aware of the allegations by [P.B.], whose statement had not been referred to the DPP for consideration whenmade in 1985” (at 6–7). [63] The final part of the Minister’s analysis on this issue was to link the exercise of prosecutorial discretion to “the long-termpsychological and emotional harm to victims of sexual offences and the societal interest in protecting children, the most vulnerablemembers of our society, provide compelling reasons for pursuing prosecution of the perpetrators of these offences, notwithstanding thepassage of time”.

Once again in a passage not referred to in Mr. Clarke’s factum, the Minister wrote as follows (at 7): In R v Friesen, 2020 SCC 9, the Supreme Court of Canada considered sentencing principles in relation to sexual interference offencesinvolving children.

The Court stated that “the protection of children is one of the most fundamental values of Canadian society”, and sent“a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and causeprofound harm to children, families, and communities.” The Court also noted that “the criminal justice system and the court process havehistorically failed children, including through rules of evidence premised on the assumption that children are inherently unreliablewitnesses.” Moreover, the victims of sexual assault offences have a legitimate interest in seeing those who harmed them face justice in trialproceedings that enforce the law and publicly recognize the victims’ experiences.

The criminal acts underlying the United Kingdom’sextradition request are very serious; Mr. Clarke is alleged to have abused his relationship of trust and authority, and preyed uponvulnerable children in his care on multiple occasions. The alleged sexual abuse occurred in the United Kingdom, and the victims, as well

as the Northern Ireland community, have the right to see justice in the jurisdiction where the harmful acts occurred. [ 64 ] Taken together, I am satisfied that the Minister has explained, in a fully transparent way, why he decided that the exercise of prosecutorial discretion by the relevant UK authorities did not constitute an abuse of process that would justify a refusal to order Mr. Clarke’s surrender. Rather than presenting a critique of the Minister’s reasoning, such as suggesting that it contains a misstep of logic or omits reference to a relevant consideration, Mr.

Clarke’s argument amounts to an invitation that this Court simply reach a different conclusion than did the Minister when he looked at these matters. Even if I were of a mind to do so, this would not render the Minister’s Decision unreasonable. [ 65 ] Considering each step in the Minister’s reasons, I am satisfied that the Minister’s conclusion, that Northern Ireland’s exercise of prosecutorial discretion was appropriate, was “based on an internally coherent and rational chain of analysis” and was “justified in relation to the facts and law that constrain the decision maker” ( Vavilov at para 85 ).

For this reason, the Minister did not err as alleged by Mr. Clarke. 4. Delay [ 66 ] Mr. Clarke’s second argument under this head is closely associated with the first. It is that the “compounding effect of excess delay meant that the Minister acted unreasonably in refusing surrender”. Mr. Clarke asserts in his factum that, “[l]ooking only at the passage of time … no person should be put on trial for alleged sexual interference over fifty (50) years after the events in question”.

He adds that “the details of what occurred 50 years ago are, by necessity, murky” and that no witness “can be expected to accurately remember the facts of what happened so many decades ago”. [ 67 ] Mr. Clarke offers no authority for the proposition that the mere passage of time means that the Minister’s Decision was unreasonable. Elsewhere in his factum, he retreats from this idea, which is one I cannot agree with in any event. Were it to be accepted in a case like this one, it would preclude prosecution of historical offences. [ 68 ] Several of the cases Mr.

Clarke cites make clear that, in most cases at least, more than the simple passage of time is required for an abuse of process to arise. In this regard, he quotes from Froom v Canada (Minister of Justice ), 2003 FC 1299 at para 118 , [2004] 2 FCR 154, that it is “delay and abuse of process ” that renders a surrender order to be unjust or oppressive (emphasis added). He also cites USA v Bobiak , 2002 BCSC 1872 at para 7 , that states that “a remedy for delay is available only where the delay affects the fairness of the extradition hearing” (emphasis added).

Cavan , to which he also refers, leaves open the possibility of grounding a finding of an abuse of process in a residual category of cases where the fairness of the process, either at trial or the extradition proceedings themselves, has been compromised. The important point is that delay alone, on facts like these, is not sufficient to have rendered the UK’s extradition request to be abusive. [ 69 ] Apparently accepting that, on its own, the delay in his prosecution does not amount to an abuse of process, Mr.

Clarke submits, more subtly, that it is delay associated with other factors that give rise to the abuse of process. In this regard, Mr. Clarke refers to three specific matters: (

a) the “fact that Northern Ireland authorities decided the matter of whether the allegations against him were punishable in law, and then reversed their decision on this without explanation”; (

b) the existence of “an expressed undertaking by the RUC and the DPP not to prosecute Mr. Clarke in 1985, over 37 years ago”; and (

c) the alleged prejudice to his ability to answer the charges against him. [ 70 ] At the outset, I note that while Mr. Clarke takes issue with the failure by the Minister to find that his surrender would be unjust or oppressive on these grounds, nowhere in his factum does he address what the Minister had to say on these topics. Put more bluntly, Mr. Clarke fails to approach his argument in the way that Vavilov demands, that is, by examining the Minister’s reasons. This omission is important because the Minister addressed each of the arguments that Mr.

Clarke now raises that are said to render the Minister’s Decision unreasonable. [ 71 ] In connection with the first point, namely, the reversal of the position by the prosecutorial authorities, the Minister reasoned as follows (at 6–7): While I acknowledge that there has been significant delay in this case as a result of the initial decision to not prosecute Mr.

Clarke, I am mindful of the explanation provided by the United Kingdom authorities that the PPSNI chose to reconsider that decision in light of the publication of a report in 2016 by the Inquiry into Historical Institutional Abuse and a later television documentary, wherein Mr. Clarke again admitted his indecent assault of teenage boys in Northern Ireland. In addition, the PPSNI became aware of the allegations by [P.B.], whose statement had not been referred to the DPP for consideration when made in 1985.

As a result of this additional information, the PPSNI reconsidered their initial decision and they took steps to prosecute Mr. Clarke. [ 72 ] It was following this passage that the Minister stated that the “reconsideration of whether to prosecute Mr. Clarke was a decision made by the PPSNI in the exercise of their prosecutorial discretion” (at 7), which I have discussed previously in this judgment. [ 73 ] Each of the statements made by the Minister in this passage are well-supported in the case record. It is therefore incorrect for Mr.

Clarke to say that the Northern Ireland authorities reversed their decision “without explanation”. These officials clearly provided the Minister with a justification for the about-face, including by stating that the earlier decision was “wrong”. The Minister’s Decision makes clear that he accepted this explanation.

Accordingly, I find no basis to conclude that on this point the Minister’s Decision presents anything other than an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the Minister. [ 74 ] Likewise, I cannot agree that it was unreasonable for the Minister to have accepted that the prosecutors were permitted to change their mind. I have already discussed the issue of prosecutorial discretion. Beyond this point, Mr. Clarke suggested that an “expressed undertaking” had been given by the Northern Ireland authorities not to prosecute him.

However, there is nothing on the record to support the existence of such an undertaking being given, if by it he means that he was the beneficiary of a promise that no charges would ever be laid against him or that the communicated decisions would never be revisited. [ 75 ] Not only is the record devoid of anything that might amount to a representation or promise that the question of Mr. Clarke’s

potential criminal responsibility would never be reopened, but it is also bereft of any suggestion that Mr. Clarke relied to his detriment onthe communications that were made to him about these potential charges. To be sure, after he gave his confessions and was told that nocharges were being laid, Mr. Clarke went on with his life with the belief that he would not be prosecuted. I also accept that he faceshardships today that are greater than those that would have existed had he been prosecuted in the 1980s. I will discuss these matters in thecontext of the third issue in this application.

However, there is simply no evidence that Mr. Clarke altered any of his life decisions becausehe thought that the possibility of a criminal charge was now behind him. [76] All of this leads me to a consideration of the proposition that the delay and reversal of the decision not to prosecute Mr. Clarkeprejudiced his ability to answer the charges against him. Delay, associated with prejudice to ability to answer to charges, provides theingredients for an abuse of process argument.

This falls squarely within the first category of abuse of process described in R v O’Connor, (SCC), [1995] 4 SCR 411, and as summarized in Cavan. Although s. 7 of the Charter is not directly applicable to actionsof the Northern Ireland authorities, the right it guarantees can be implicated by pre-charge delay that prejudices the ability of an accused tomount a defence: R v L.(W.K), (SCC), [1991] 1 SCR 1091 at 1100. [77] However, it is again important to observe that the Minister assessed the impact of the passage of time on Mr.

Clarke’s ability toanswer the charges in Northern Ireland and to respond to the extradition request. The Minister identified four ways that this reality wasrelevant. First, the Minister considered whether Mr. Clarke’s ability to defend himself had been compromised. In this context, he observedthat, although Mr. Clarke asserted that witnesses could not be expected to accurately recall events from so long ago, Mr. Clarke did notsuggest that defence evidence was now unavailable because of the passage of time.

He also noted that the PPSNI had confirmed that “theprosecution is viable and that both victims are willing to testify in criminal proceedings” and that “Mr. Clarke confessed to sexuallytouching both victims” (at 8). Second, the Minister found no evidence that the extradition process itself had been compromised because ofdelay. Third, the Minister took into account that Mr. Clarke would be able to raise issues of delay and abuse of process in the criminalproceedings themselves.

He observed that “proceedings may be stayed where the United Kingdom courts conclude that an accused cannotreceive a fair trial or that it would be unfair to try an accused in the particular circumstances”. He found that “issues raised with respect todelay and state misconduct are appropriately raised before and adjudicated by the United Kingdom as they are best-situated to apply theirlaw, having regard to the relevant policy and societal interests”. Finally, the Minister had regard for the advice of the UK authorities that“delay in this case is a relevant consideration on sentencing if Mr.

Clarke were convicted, and that this may lead to a reduced or suspendedsentence” (at 8). [78] Mr. Clarke offers no direct criticism about any part of this analysis by the Minister. To the contrary, in relation to the first ofthe Minister’s points, at the hearing of this appeal his counsel acknowledged that, notwithstanding statements in his factum to the contrary,he could not say that the delay in this case prejudiced in a material way his client’s ability to defend the charges.

Considering thisadmission, and the reasons given by the Minister, I fail to see how the Minister’s Decision could be found to be unreasonable because ofdelay and any associated prejudice to Mr. Clarke’s ability to answer the charges against him or resist the UK’s extradition request. 5. The Charter [79] As I have already explained, in his written submissions to the Minister, Mr. Clarke had focused on the obligation of theMinister to refuse, under s. 44(1)(

a) of the Extradition Act, to order Mr. Clarke’s surrender if it would be unjust or oppressive havingregard to all the relevant circumstances. He also reproduced s. 7 of the Charter, but he did not separately analyze how it was that this rightwas violated by the Minister’s Decision. Instead, after quoting s. 7, Mr. Clarke returned to discuss s. 44(1)(

a) of the Extradition Act toemphasize the extreme delay, and how he will be personally prejudiced if he is called to answer for these charges now, as opposed to if hehad been required to answer them in the 1980s when he confessed to abusing W.B. and P.B. [80]

Section 7 of the Charter guarantees the “right to life, liberty and security of the person and the right not to be deprived thereofexcept in accordance with the principles of fundamental justice”. In Canada v Schmidt, (SCC), [1987] 1 SCR 500 at 518,La Forest J. stated that there is “no doubt that the actions undertaken by the Government of Canada in extradition as in other matters aresubject to scrutiny under the Charter (s. 32)”. He added, though, that “there cannot be any doubt that the Charter does not govern theactions of a foreign country”.

See also: Cavan at para 50. [81] An example of the application of these principles can be found in Burns, wherein it was held that s. 7 of the Charter requiresthat, in all but exceptional circumstances, the Minister shall not order the surrender of a person facing the death penalty in the stateseeking extradition unless assurances are given that the death penalty will not be imposed.

Burns, and other cases, have concluded that thetest to be applied to determine if s. 7 will be offended by an extradition involves asking whether such an order would “shock theconscience” or whether the person being extradited would face “a situation that is ‘simply unacceptable’” (Burns at paras 68 and 66,respectively. See also: Carter at para 18). [82] In this Court, as he did in his written submission to the Minister, although Mr. Clarke refers to s. 7 of the Charter, hisarguments remain focused on the proposition that his surrender would be contrary to the direction given by s. 44(1)(

a) of the ExtraditionAct, which requires the Minister to refuse to approve a person’s removal from Canada if the “surrender would be unjust or oppressivehaving regard to all the relevant circumstances”. He did not explain, at least in a way that I can understand, how it might be that, in thepresent circumstances, the Minister was not required to refuse his surrender under s. 44(1)(

a) of the Extradition Act, because it would be“unjust or oppressive having regard to all the relevant circumstances”, but that his Charter rights would be violated because it would“shock the conscious” to order his surrender. [83] I have previously summarized the Minister’s Decision. I am satisfied from my review of it that, insofar as Mr.

Clarke raises theCharter, the Minister asked the right question, took account of relevant matters, and reached a decision that was “based on an internallycoherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov atpara 85). Accordingly, Mr. Clarke’s attack on the reasonableness of the Minister’s Decision because of an alleged violation of his s. 7Charter rights must fail. 6. Conclusion on process arguments

[ 84 ] Considering the foregoing, I cannot find that “Northern Ireland’s extreme delay, combined with the unjustified reversal of the decision on whether the allegations were punishable at law, meant that the Minister acted unreasonably in refusing surrender”. I would, therefore, reject Mr. Clarke’s second ground for his application for judicial review. C. Other considerations 1. The issue [ 85 ] As previously noted, pursuant to s. 44(1) (

a) of the Extradition Act , the “Minister shall refuse to make a surrender order if the Minister is satisfied” that “the surrender would be unjust or oppressive having regard to all the relevant circumstances”. As noted earlier, the Supreme Court has held that, given “the mandatory nature of s. 44(1) (a), the ‘Minister must consider all relevant circumstances, singly and in combination, to determine whether surrender would be unjust or oppressive’” ( Fischbacher at para 37 . See also: MacKenzie v Canada (Attorney General) , 2020 SKCA 3 at para 26 [ MacKenzie ]). [ 86 ] Mr.

Clarke’s final ground is that the Minister failed to undertake the kind of holistic analysis that these authorities require. More specifically, he says that whether issue estoppel applied, or the authorities’ decision amounted to an abuse of process, the constellation of the facts that underpin those arguments, together with his serious health concerns and family responsibilities, mean that it was unreasonable for the Minister not to find that his surrender would be unjust or oppressive. 2. The Minister’s Decision [ 87 ] I begin my consideration of Mr.

Clarke’s final argument with a detailed review of what the Minister had to say about these matters. [ 88 ] Under the heading “Mr. Clarke’s Advanced Age and Health Issues”, the Minister set out the information before him relating to Mr. Clarke’s medical history and current medical state (at 9): According to the information provided, Mr.

Clarke is an 80-year-old cancer survivor who has considerable health problems, including diabetes, non-alcoholic fatty liver disease, congestive heart failure, chronic kidney disease, coronary atherosclerosis, benign prostatic hyperplasia, essential hypertension, hypertriglyceridemia and recurrent right-sided pleural effusion (fluid on the lungs). Further, Mr. Clarke had a triple bypass surgery in 1996, a partial colectomy complicated by a “Swiss cheese” abdominal hernia in 2015, and he is currently in remission from colorectal cancer. [ 89 ] Because of Mr.

Clarke’s expressed concerns that his health conditions could not be properly managed if in custody, the Minister had sought out information on that issue from UK authorities. He received assurances, which he detailed, that “Mr. Clarke’s medical conditions can be treated during transport to the United Kingdom, while in pre-trial detention if Mr. Clarke were remanded into custody and while in custody, if he were convicted and sentenced to a term of imprisonment” (at 9). Having done so, the Minister offered the following analysis (at 10–11): Mr.

Clarke’s age and health issues are relevant to my decision on surrender. However, refusing surrender on this basis is subject to a high threshold. Only in exceptional cases will such circumstances outweigh the legitimate aims of extradition. In all other cases, persons sought for extradition must generally expect that they will be answerable to the extradition partner’s criminal justice system ( MM v United States of America , 2015 SCC 62 ).

The courts have repeatedly held that the fact that a person sought for extradition has health problems, even serious ones, does not, in itself, render unconditional surrender unjust or oppressive or violate the principles of fundamental justice ( United States of America v Cameron , 2017 BCCA 385 , leave to appeal to the SCC refused, [2018] SCCA No 16; Ganis v Canada (Minister of Justice) , 2006 BCCA 543 , leave to appeal to the SCC refused, [2007] SCCA No 111).

The courts have also held that the fact that health problems may be exacerbated by detention, does not, in itself, render surrender unjust or oppressive or violate

section 7 of the Charter ( Larabie v R (1988), 43 CCC (3d) 385 ). As a general matter, I am entitled to rely on the representations provided by Canada’s extradition partner without the need for further inquiry ( United States v Levy , 2019 ONCA 915 ; Cameron ; Scarpitti v United States of America , 2007 BCCA 498 ). The United Kingdom authorities have been made aware of Mr. Clarke’s medical conditions. The information they have provided indicates that the authorities will be able to address Mr. Clarke’s health concerns and have the appropriate medical care facilities in place to do so.

Based on the information provided, I am satisfied that should Mr. Clarke require care outside of the carceral system, arrangements are in place to accommodate such an eventuality. I have no reason to doubt their ability to treat Mr. Clarke as required. While Mr. Clarke’s physical health concerns and advanced age are significant factors to be considered, these concerns must be weighed against the need to ensure respect for the law and Canada’s international obligations, and recognize the interest on the part of the United Kingdom to prosecute Mr. Clarke for serious criminal conduct.

From a broader justice perspective, it is important to give victims the opportunity to attend and/or participate in the court proceedings of the person alleged to have victimized them, including at the sentencing stage. I note that by their very nature, historical sexual offence prosecutions often involve elderly defendants suffering from illnesses who may be unlikely to reoffend ( R v Leroux , 2014 SKCA 60 ). Accordingly, in my view, Mr. Clarke’s age and health concerns, while serious, do not render his surrender unjust or oppressive, or otherwise contrary to

section 7 of the Charter . Although I acknowledge that extradition will be difficult for a man of Mr. Clarke’s age and circumstances, the United Kingdom authorities have represented that they will be able to provide care and treatment during his transfer to the United Kingdom and if he is held in custody, pending trial or if convicted and sentenced to a term of imprisonment. [ 90 ] The Minister next considered the other circumstances Mr. Clarke had raised, under the heading “Mr. Clarke’s Background and

Personal Circumstances”. These included Mr. Clarke’s own traumatic background, including his own history as a victim of sexual abuse, his education, military service and work history, and his responsibilities to his spouse of over 50 years and his dependant child. The Minister had regard to the fact that Mr. Clarke “has no criminal record, and no allegations of criminal offences other than in this case”, as well as his history of service of others as a pastor and social worker (at 11–12). The Minister advised that, in light of Mr.

Clarke’s submissions, his officials had “explored whether resources, programming, and social support networks may be available to assist Mr. Clarke’s wife and children, should Mr. Clarke be extradited” (at 12). He then explained what health and social services would be available. Having provided this background, the Minister offered the following analysis (at 12–13): Mr. Clarke’s personal circumstances are relevant to my decision on surrender. However, as with his age and health concerns, refusing surrender on this basis is subject to a high threshold. You [Mr. Clarke’s lawyer] and Mr.

Clarke identified some of the challenges Mr. Clarke has experienced in his life including being an alleged victim of sexual child abuse himself and having a difficult family life. You and Mr. Clarke have also outlined the negative impact that his surrender would have on his wife and their adult children, who need assistance to live independently. As detailed in the information above, resources, programming and social support networks are available in the Province of Saskatchewan to assist Mr. Clarke’s wife and children. In my view, Mr.

Clarke’s separation from his dependant spouse and children, and the resulting impact on them, is not a sufficient basis on which to refuse surrender. If this were the case, Canada would be prevented from fulfilling its obligations in extradition matters in every case where a person sought had dependant family members ( Savu c Canada (Ministre de la Justice) , 2013 QCCA 554 ). Mr.

Clarke’s personal circumstances and the impact on his family if he were surrendered do not amount to the type of compelling and overriding factors that would shock the conscience and require me to decline surrender in the face of compelling evidence of criminal conduct ( Burns ). His personal circumstances will, however, be relevant to his sentence should he be extradited, tried, and convicted in the United Kingdom. As stated above, Mr. Clarke is charged with serious sexual assault offences in the United Kingdom and Mr.

Clarke’s personal circumstances do not displace Canada’s obligations to extradite or the United Kingdom’s right to try him for the offences alleged to have been committed against two of their citizens. I am of the view that Mr.

Clarke’s personal circumstances do not render his surrender to the United Kingdom shocking to the conscience; nor do they violate our sense of fundamental justice so as to “tilt the balance against extradition” especially when balanced against the seriousness of the allegations in the United Kingdom. [ 91 ] Finally, after considering the issue of specialty assurances, the Minister concluded his analysis by stating as follows (at 13): Having considered all the circumstances of this case, and in light of all of the information received, I conclude that Mr.

Clarke’s surrender to the United Kingdom for prosecution on the offences for which his extradition is sought would not be unjust or oppressive, nor would it result in a violation of his Charter rights. 3. Mr. Clarke is asking for an impermissible re-weighing [ 92 ] As I have previously noted, and as Richards C.J.S. stressed in Carter , the role of this Court is not to remake the Minister’s Decision .

As I have also emphasized at several junctures, Vavilov now requires that an administrative decision not only be justifiable – that is, fall within a range of reasonable outcomes – it must “also be justified , by way of those reasons, by the decision maker to those to whom the decision applies” (at para 86, emphasis in original). For the reasons I have given, I am satisfied that the Minister’s Decision meets this mark. [ 93 ] In expressing this conclusion, it is important to note, at the outset, that Mr. Clarke has not identified any overt legal error in the Minister’s analysis.

He also has not pointed to any material evidence he brought forward, or argument that he advanced, that the Minister failed to address in his reasons. [ 94 ] Rather than identifying any overt or explicit error, Mr. Clarke is left to suggest that the Minister failed to consider the relevant matters holistically. To accept this proposition, I would have to ignore the Minister’s express words when he stated that he had “considered all the circumstances of this case” (at 13). I would also have to set to the side the Minister’s careful consideration of each of the factors that Mr.

Clarke raises in this Court as providing the basis for his submission that it would be unjust or oppressive to order his surrender. [ 95 ] Mr. Clarke’s personal circumstances have many similarities to MacKenzie , in which this Court refused to quash an order that an 87-year-old man be surrendered for extradition to face historic charges of physical and sexual assault of schoolboys.

In that case, Richards C.J.S. referred to a number of other cases where surrender orders have been upheld, notwithstanding that the person facing extradition was dealing with serious medical hardships. [ 96 ] I accept that it may not be possible to find another case where there is a constellation of a medically disadvantaged individual, the compelling circumstance of other dependants who will be disadvantaged by an extradition, together with a change in position by prosecutorial authorities after a previous decision had been taken not to prosecute.

However, it was up to the Minister to weigh these matters and consider them against those that favoured ordering Mr. Clarke’s surrender in order to determine if it would be unjust or oppressive to surrender Mr. Clarke. [ 97 ] I am left to conclude that Mr. Clarke’s argument under this head amounts to a request that this Court re-weigh the considerations that bear on whether his surrender would be unjust or oppressive in all the circumstances. This task is not this Court’s role, in an application of this nature. 4. Conclusion on other considerations [ 98 ] For all these reasons, I am unable to accept Mr.

Clarke’s argument that the Minister failed to undertake the required holistic

analysis of all relevant factors bearing on whether surrender would be unjust or oppressive in the circumstances of this case. VI. CONCLUSION [ 99 ] For the reasons I have given, I would dismiss Mr. Clarke’s application for judicial review of the Minister’s Decision. The Minister did not request costs, and none are ordered. “Leurer J.A.” Leurer J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.