T-1945-95
BETWEEN:
RAYMOND DesFOSSÉS,
Applicant,
- and -
ALLAN ROCK, Minister of Justice of Canada,
Respondent.
REASONS FOR ORDER
DUBÉ J:
This motion by the applicant, pursuant to subsections 18(3) and 18.1(3)(b) of the Federal Court Act1, is for an order quashing and setting aside the decision rendered by the respondent ("the Minister") in which he ordered the surrender of the applicant to the United States of America in an extradition matter pursuant to the Extradition Act2 ("the Act") and the Treaty on Extradition between Canada and the United States of America ("the Treaty"). The applicant further seeks his discharge out of custody and release from detention from the Parthenais Prevention Centre ("the Centre") under subsection 24(1) of the Charter of Rights and Freedoms ("the Charter").
| 1. Relevant facts and proceedings |
On March 23, 1992, by Diplomatic Note No. 080 ("the Diplomatic Note"), the United States requested the extradition of the applicant who is wanted to stand trial in the State of Florida on five different charges (conspiracy to traffic cocaine, armed robbery, attempted murder, conspiracy to commit a first degree murder and first degree murder).
On March 23, 1992, a warrant was obtained under the Act and the applicant was arrested near Trois-Rivières, Québec, the next day. On May 29 and June 1, 1992, an extradition hearing was held and on June 19, 1992, Ducros J. of the Quebec Superior Court committed the applicant on all charges to the custody of the Centre in Montréal pending his surrender. On August 21, 1992, an application for habeas corpus was dismissed by Boilard J. On March 23, 1993, the Quebec Court of Appeal dismissed an appeal of that decision. On April 6, 1993, an application was brought for leave to appeal to the Supreme Court of Canada which was eventually dismissed. On May 26, 1994, the applicant brought a second habeas corpus application which was denied on September 30, 1994, by Greenberg J.
Finally, the applicant recently attacked by way of habeas corpus the sufficiency of the Diplomatic Note and Boilard J., on May 4, 1995, rejected the application holding that said Note was sufficient to constitute a valid requisition for surrender of the fugitive. He also rejected the contention that the absence of reports to the Minister under subsections 10(2) and 19(b) of the Act vitiated the extradition proceedings as compliance with the Treaty was a matter for the executive and not the courts.
| 2. The grounds for the application |
The applicant raised a panoply of arguments in support of his application for judicial review. The originating notice of motion itself is a document 177 pages long. The oral presentation was erudite, competent and eloquent, covering all aspects of extradition law and jurisprudence. For the purposes of these reasons for order the applicant's arguments may be abridged as follows:
1. The extradition judge, Ducros J., did not make his report to the Minister as required under subsections 10(2) and 19(b) of the Act, thus depriving the Minister of his jurisdiction to surrender the fugitive under section 25 of the Act.
2. The requesting country, the U.S.A., was represented at the extradition hearing by one Richard Starck, a lawyer with the Canadian Department of Justice who was not duly mandated to represent the requesting country.
3. The same Richard Starck acted in a biased manner by not presenting to the judges and to the Minister all the material provided to him.
4. The evidence discovered subsequently, mostly from other files and hearings in the United States, shows that the affiant of the main affidavit, John Quitoni, upon which the application for extradition is largely based perjured himself.
5. The crime for which the applicant is to be extradited is not a crime in Canada under the Canadian Criminal Code.
6. The warrant of committal signed by the extradition judge is defective.
7. The fugitive was not properly identified at the extradition hearing and is not the applicant.
8. The Minister abdicated his responsibility under the Act and the Treaty by refusing to review the extradition proceedings leading to his surrender and erroneously applying a liberal interpretation to the Treaty and the Act in a case that cried out for vigilance.
9. There was no valid U.S. warrant of arrest at the time of the extradition hearing and the warrant of committal signed by the extradition judge is null and void.
10. Officials of the Canadian Department of Justice failed to place before the Minister a letter from the applicant's counsel dated August 9, 1995, shortly before the Minister's decision, thus depriving the latter of vital information which would have had a potent impact on his decision.
11. The Diplomatic Note was not handled through diplomatic channels contrary to Article 9 of the Treaty but was dealt with by the Canadian Department of Justice.
12. The Minister should have ordered an inquiry into the role of Richard Starck and his American counterpart, Mr. Larrinaga, the prosecutor for the state of Florida, to ensure the integrity of the extradition process.
13. The U.S. request was flawed and contrary to Article 9 of the Treaty as it was not accompanied by a proper description of the fugitive to be extradited.
14. The Minister did not have before him clear and convincing evidence that the surrender had to be made.
15. The Minister did not produce any evidence in support of his statement that American authorities had committed themselves not to impose the death penalty on the applicant.
16. The Minister failed to carry out his duty to protect the rights of the applicant under section 7 of the Charter.
17. The Minister allowed U.S. authorities to paint a false picture and to file contradictory and perjured evidence before the Canadian courts and thus failed to protect the integrity of the Canadian judicial system.
| 3. The role of the Minister |
These proceedings before the Federal Court constitute an attack on the decision of the Minister and, obviously, are not to be considered as a judicial review of the aforementioned decisions of the Quebec Superior Court judges. The jurisdiction of the Minister in extradition matters stems from the Act and the Treaty. In broad terms, the requesting country under the Treaty makes a requisition by way of the diplomatic channel to the Government of Canada for the surrender of a person who is accused, or has been found guilty, of a criminal offence in the United States and is now a fugitive in Canada.
The Canadian Government must seek the intervention of Canadian courts as the power to arrest is vested in the judiciary. These judicial proceedings are initiated by the Canadian Department of Justice and the prosecution may be conducted by counsel retained by the U.S. Government (who may be, and usually is, an employee of the Canadian Department of Justice).
Judicial authority in extradition matters is broadly vested in provincial Superior Court Judges. The extradition hearing is not a trial, but an inquiry along the lines of a preliminary hearing to determine whether or not there is a prima facie case. If the judge finds that there is such a case, he must commit the fugitive to prison for surrender. The judges themselves have no power to surrender: they may only commit the fugitive for surrender.
The decision to surrender is a political one that is exercised in Canada by the Minister of Justice. Thus, the Minister has the power to surrender the fugitive but he does not have to. His discretion, however, is circumscribed by the provisions of the Act and the Treaty 's obligations. Section 25 of the Act stipulates that the Minister, on the requisition of the foreign state, "may" order the surrender of a fugitive. Under section 22 of the Act, the Minister may refuse to make an order for surrender where he determines that the offence or the proceedings are of a political character.
A treaty is a binding agreement between states3. Under Article 1 of the Treaty, each contracting party agrees to extradite to the other, subject to the conditions of the Treaty, persons charged with the offences described in Article 2. Article 2 stipulates that extradition "shall" be granted for conduct which constitutes an offence punishable by the laws of both Contracting Parties by imprisonment for a term exceeding one year (the essential component of double criminality). Article 9 provides that the request for extradition "shall be made through the diplomatic channel" and shall be accompanied by a description of the person sought and a statement of the facts of the case and of the law involved. Article 10 provides that extradition "shall" be granted if the evidence "be found sufficient" according to the laws of the requested party.
Double criminality and sufficiency of evidence are matters for the extradition judge, not for the Minister. Thus, the discretion of the Minister is limited. Once the extradition judge has found double criminality and sufficient prima facie evidence to grant the extradition and the Minister is satisfied that the requesting country has met the conditions of the Treaty, he must order the surrender of the fugitive.
It is not for the Minister to look into the evidence filed by the requesting state at the extradition hearing with a view to determine whether or not such evidence is sufficient. He has other responsibilities as stated in La Forest's Extradition to and from Canada4, at page 199:
| "In addition to ensuring the performance of its obligations under the extradition treaties at issue, Canada has more general responsibilities, consequent upon its membership in the world community, to ensure that there is co-operation in the investigation, prosecution, and suppression of international crime"5. |
Thus, there are two distinct phases to the extradition process. First, the judicial phase before the extradition judge which may lead to a warrant of committal. The second phase is political and within the jurisdiction of the Minister who must fulfil his treaty obligations. His role is analyzed by Cory J. in these abstracts from his reasons in the Idziak case6:
| It has been seen that the extradition process has two distinct phases. The first, the judicial phase, encompasses the court proceedings which determine whether a factual and legal basis for warrant of committal, then the second phase is activated. There, the Minister of Justice exercises his or her discretion in determining whether to issue a warrant of surrender. The first decision-making phase is certainly judicial in its nature and warrants the application of the full panoply of procedural safeguards. By contrast, the second decision-making process is political in its nature. The Minister must weigh the representations of the fugitive against Canada's international treaty obligations. The differences in the procedures were considered in Kindler v. Canada (Minister of Justice) (1991), 67 C.C.C. (3d) 1 at pp. 22-3, 84 D.L.R. (4th) 438 at pp. 459-60, [1991] 2 S.C.R. 779 |
| ... |
| Parliament chose to give discretionary authority to the Minister of Justice. It is the Minister who must consider the good faith and honour of this country in its relations with other states. It is the Minister who has the expert knowledge of the political ramifications of an extradition decision. In administrative law terms, the Minister's review should be characterized as being at the extreme legislative end of the continuum of administrative decision-making. |
| ... |
| It is correct that the Minister of Justice has the responsibility to ensure the prosecution of the extradition proceedings and that to do so the Minister must appoint agents to act in the interest of the requesting state. However, the decision to issue a warrant of surrender involves completely different considerations from those reached by a court in an extradition hearing. The extradition hearing is clearly judicial in its nature while the actions of the Minister of Justice in considering whether to issue a warrant of surrender are primarily political in nature. This is certainly not a case of a single official acting as both judge and prosecutor in the same case. At the judicial phase the fugitive possesses the full panoply of procedural protection available in a court of law. At the ministerial phase, there is no longer a lis in existence. The fugitive has by then been judicially committed for extradition. The Act simply grants to the Minister a discretion as to whether to execute the judicially approved extradition by issuing a warrant of surrender. |
It is common ground that the Federal Court has jurisdiction to carry out a judicial review of the decision of the Minister since he is making a decision pursuant to a federal statute. In Kindler v. Canada7, the Federal Court of Appeal held that the Minister's decision to surrender a fugitive is not one of judicial or quasi-judicial character. However, the scope of judicial review with reference to Charter obligations is limited in the sense that the surrender of a fugitive under the Act and an extradition treaty, carried out in accordance with principles of fundamental justice, does not constitute per se an offence against the Charter.
In Schmidt v. The Queen8, the Supreme Court of Canada stated that the Minister must first determine whether the general system for the administration of justice in the requesting country sufficiently corresponds to our own concepts of justice. Surely, that issue does not arise in the context of our treaty relationship with the United States. The Court noted that this was an area where the executive is likely to be far better informed than the courts. The Court concluded (at p. 215):
| "In a word, judicial intervention must be limited to cases of real substance". |
Thus, the question to be resolved is whether any of the numerous grounds raised by this application for judicial review of the Minister's decision constitute "cases of real substance".
| 4. Analysis of the grounds for review |
(1) - Failure of the extradition judge to report to the Minister
Under subsection 10(2) of the Act, the extradition judge shall "forthwith send a report of the fact of the issue of the warrant referred to in subsection (1), together with certified copies of the evidence and foreign warrant information or complaint, to the Minister of Justice". Under subsection 19(b), the extradition judge shall "transmit to the Minister of Justice a certificate of the committal, with a copy of all the evidence taken before the judge not already so transmitted, and such report on the case as the judge thinks fit". It is common ground that the extradition judge did not comply with all these statutory requirements.
However, there is nothing in the Act to the effect that failure to transmit those documents to the Minister is a ground for quashing his order of surrender. Under section 25, the Minister on the requisition of the foreign state may order a fugitive who has been committed for surrender to be surrendered accordingly. The Minister may refuse to do so, on proper grounds, as prescribed in section 22 of the Act and the provisions of the Treaty.
In the instant case, before making his surrender decision, the Minister already had before him the very substantial reasons of Ducros J. as well as a record of the evidence and the warrant of committal. As to the "report on the case" under subsection 19(b), that subsection provides that the judge shall transmit "such report on the case as the judge thinks fit". The mere fact that he did not do so is not, in my view, a case of real substance that would vitiate the Minister's subsequent decision.
(2) - Richard Starck not duly mandated
There is no document on file to the effect that Mr. Starck was duly retained by the Government of the United States. He obviously acted in that capacity. He was provided with U.S. files and documents and clearly worked in liaison with American officials. As pointed out by the Minister in his decision, there is a long standing practice in Canada whereby agents of the Attorney General of Canada represent the requesting state in extradition proceedings. That practice is in accordance with Article 17(1) of the Treaty which provides that "appropriate legal officers of the state in which the extradition proceedings take place shall, by all legal means within their power, assist the requesting state before the respective judges and magistrates". Mr. Starck's particulars of appointment needed not be a concern of the Minister.
(3) - Mr. Starck acted in a biased manner by not presenting all the evidence
The jurisprudence is clear to the effect that the requesting state does not have to provide all the evidence it has against the fugitive. It is sufficient for the requesting state to produce sufficient evidence to mount a prima facie case. Whether Mr. Starck was biased or not was for the extradition judge to decide and surely not for the Minister. Moreover, there are no provisions, either in the Act or the Treaty, to the effect that the requesting country's agent would have to report to the Minister.
(4) - John Quitoni perjured himself
This allegation of perjury may be relevant in the context of an eventual trial in Florida, in view of the evidence discovered by the applicant after the extradition hearing. There is a fair assumption that the requesting state, the United States, which has a democratic legal system and basic human values somewhat similar to ours, will hold a fair trial and that applicant's counsel will be given full opportunity to cross-examine Mr. Quitoni (cross-examination of affiants is not allowed at extradition proceedings). The American prosecution authorities have advised Canadian authorities that he will be called as a witness. It is not for the Minister to assess the credibility of affiants whose affidavits were considered by the extradition judge.
(5) - Double criminality
Article 2 of the Treaty provides that extradition shall be granted for "conduct which constitutes an offence" punishable by the laws of both contracting parties. The applicant's argument is to the effect that felony murder with which he is charged in United States is no longer a crime in Canada. It must be borne in mind, however, that Article 2 does not deal with the name of the alleged offence but with the "conduct" of the fugitive. In other words, the conduct of the fugitive must constitute an offence punishable in both countries. It matters not whether that conduct is called "felony murder" in the United States and something else in Canada. La Forest J. of the Supreme Court of Canada said as follows in U.S.A. v. McVey9 (at pp. 526 and 549) when dealing with "the so-called double criminality rule":
| The function of the extradition hearing, then, as observed in Argentina v. Mellino , [1987] 1 S.C.R. 536, is a modest one. That function is to determine whether there is sufficient evidence that a fugitive accused has committed an act in the requesting state that would, if committed in Canada, constitute a Canadian crime listed or described in the treaty. In short, and I shall have more to say about this later, what the extradition judge must determine is whether the conduct of the accused would constitute a crime if it had been committed in this country. This function, if modest in scope, is critical to the liberty of the individual. This Court thus put the matter in Canada v. Schmidt, [1987] 1 S.C.R. 500, at p. 515 |
| ... |
| ...This is the component and barring express provision, the only component - of the comprehensive definition of extradition crime that is left to be decided by the extradition judge. That jurisdiction is assigned to the extradition judge by s. 18 of the Extradition Act. That function, as I noted, is very limited, but critically important. It ensures that no one shall be extradited from this country unless a judge is satisfied that person has been convicted of an act (or there is prima facie evidence that he or she has committed an act) that, if it had occurred in this country, would be a crime here that is described in the treaty. |
It is to be noted from these quotes that La Forest J. not only bases the component of double criminality on the conduct of the fugitive but also makes it quite clear that the existence of double criminality is to be decided by the extradition judge (not by the Minister).
(6) - The warrant of committal is defective
The warrant of committal was issued by the extradition judge under paragraph 18(1)(b) of the Act which stipulates that the extradition judge shall issue a warrant for the committal of the fugitive accused of an extradition crime, "if such evidence is produced as would according to the law of Canada justify the committal if the crime had been committed in Canada". Ducros J. did find that there was sufficient evidence, decided accordingly and released comprehensive reasons for his decision. The Minister does not have the authority to review that decision and the Federal Court does not have the jurisdiction to review the decision of a Quebec Superior Court. The warrant of committal itself was confirmed by way of habeas corpus.
(7) - Improper identification
Some documents filed at the hearing do indicate that the name of the applicant was misspelled and that the colour of his eyes was not properly identified. The extradition judge found that there was sufficient evidence to ensure that the applicant was in fact the fugitive sought by the American authorities. Subsequent habeas corpus proceedings before the Quebec Courts have dismissed the applicant's allegations of improper identification.
(8) - The Minister abdicated his responsibility
The applicant alleges that it is the Minister's responsibility to protect him at every stage of the extradition proceedings and that he failed to exercise the degree of vigilance expected of him under the Act and the Treaty. Again, it is not for the Minister to monitor the judicial proceedings launched before the courts under the Act. The applicant was well represented before the Canadian tribunals and his rights of appeal were duly exercised. In any event, those extradition proceedings are akin to preliminary hearings and there is no evidence that they were not conducted judicially according to law. There is no obligation on the part of the requesting state to produce all the evidence in its possession. Committal must follow if there is any evidence upon which a jury could convict10.
The applicant launched habeas corpus proceedings wherein the judges involved had to inquire whether the fugitive was the person sought by the requesting state, whether the offence was in fact an extradition crime, and whether there was sufficient evidence to warrant the committal. They were satisfied that these criteria were met.
As to the role of the Minister, he must give a liberal interpretation to the Treaty as it is a binding agreement between two contracting parties. If the conditions of the agreement are met by the requesting state and the conditions under the Act have been fulfilled, the Minister has a legal obligation and a political duty to comply and surrender the fugitive.
(9) - There was no valid U.S. warrant of arrest
It is common ground that following an indictment of a grand jury in Florida a U.S. warrant of arrest or a capias was issued and that the document was placed before the extradition judge in Canada. It is also conceded that following a superseding indictment by a grand jury a fresh capias was issued but not filed at the extradition hearing in Canada. According to the affidavit evidence of Mr. Larrinaga (as discovered later by counsel for the applicant) the superseding indictment invalidated the first capias. Therefore, according to the applicant, a second capias was essential under subsection 10(2) of the Act. In other words, it was mandatory for Ducros J. to deal with the second capias and forward it to the Minister as a basis for the latter's surrender. As this was not done, the applicant claims that the surrender order is invalid.
At first blush, the argument is compelling. The warrant of arrest is indeed a pre-requisite. As mentioned by La Forest J. in McVey11 (at p. 526) "the function of the extradition hearing is a modest one but it is critical to the liberty of the individual". The protection afforded the fugitive, apart from deciding whether there is sufficient evidence that he has committed a crime, does not end there. The requisition from the requesting state must be accompanied by the text of the law "as well as a warrant of arrest issued by a judge or other judicial officer in that state".
Thus, the applicant argues that it was for the Minister to look into the matter and to ensure that the relevant capias be placed before the extradition judge. Counsel for the applicant raises this matter again in his letter to the Minister dated August 9, 1995, shortly before the Minister's decision was released. He refers therein to Mr. Larrinaga's subsequently discovered affidavit to the effect that the first capias was automatically dismissed by the superseding indictment.
It is clear from his decision that the Minister was aware of the superseding indictment against the applicant (at p. 7):
| I have determined that I should presume the superseding indictment pending in Florida against Mr. Desfossés to have been validly issued by an authority, vested with the necessary jurisdiction and that it is not my role to consider evidence as it pertains to the power of the authority issuing the indictment or the jurisdiction of the court before which it is pending. |
| The consideration of such evidence is for the competent U.S. authorities upon issuing process or at trial. I need not go behind the issuance of the indictment pending against a fugitive. |
In my view, whether the extradition judge had before him the first capias or the second one is a technical issue that would have been considered by the extradition judge if the matter had been raised at the time. In dealing with his obligations under the Treaty, it was sufficient for the Minister that there was an indictment by a grand jury. The Treaty provides under Article 1 that each contracting party agrees to extradite persons who have been charged with or convicted of any of the offences covered by Article 2. Article 2 stipulates that extradition shall be granted for conduct which constitutes an offence punishable by the laws of both contracting parties. The capias is not an essential ingredient under the Treaty and it was not the Minister's responsibility to deal with it. Faced with an indictment from a grand jury, the Minister could not have refused to surrender the fugitive to the requesting state merely because the second capias was not before the extradition judge. Whether or not the superseding indictment had the legal effect of rendering the first capias null and void, as claimed by Mr. Larrinaga, is for the legal authorities of the requesting state to decide and certainly not for the Canadian Minister of Justice.
(10) - The August 9, 1995 letter
Counsel for the applicant claims that his letter of that date to the Minister was not placed before him by his departmental officials or legal advisers before he released his decision on August 19, 1995. Although the Minister's decision is much detailed, there is no reference to that letter. As mentioned earlier, the letter deals mostly with the second capias and also seeks a personal meeting with the Minister. It refers to the affidavit of Mr. Larrinaga wherein he states that the first capias "was automatically dismissed". Larrinaga's affidavit was annexed to the letter.
It is obvious from reading the decision of the Minister that a large number of documents and arguments were considered. It is clear from the paragraph reported above that he was satisfied that the superseding indictment was valid and that it was not his role to weigh the evidence which led to it. Thus, it cannot be said that his failure to consider that letter, dated shortly before the release of his decision, constitutes a case of real substance.
(11) - The Diplomatic Note
The Diplomatic Note dated March 24, 1992, is a two page document under the letterhead of the Embassy of the United States of America. In the first paragraph, it "presents its compliments to the Department of External Affairs". It then requests the extradition of the applicant for various offences therein described. It refers to some of the facts of the case and to the Treaty. It describes the applicant and two accomplices (Alain Strong and James Allardyce). The letter states that "documentation in support of the request for extradition was sent directly to the Canadian Department of Justice by express mail".
Article 9 of the Treaty stipulates that "the request for extradition shall be made through the diplomatic channel". The request was obviously transmitted from the American Embassy in Ottawa to the Canadian Department of External Affairs which constitutes, of course, "a diplomatic channel". However, the applicant complains that the documentation was expressed to the Canadian Department of Justice and therefore not handled through diplomatic channels.
There are no provisions in Article 9 to the effect that documents related to the request for extradition must also be made through the diplomatic channel. As mentioned by the Minister in his decision (at p. 4), the documents bearing the seal of the State Department of the United States were sent to the International Assistance Group of the Department of Justice by the office of International Affairs of the U.S. Department of Justice.
(12) - Inquiry into the role of Richard Starck and Mr. Larrinaga
As mentioned earlier, it is not the responsibility of the Minister to monitor the conduct of the American prosecutor for the state of Florida or his agent, an official of the Canadian Department of Justice. If the case they made before the extradition judge is replete with contradictions, inconsistencies, or perjury, that will all come out at the trial. If the evidence they marshalled before the Canadian extradition judge was considered to be sufficient by him to establish a prima facie case, it is certainly not for the Minister to launch an inquiry into the matter.
(13) - Improper description of the fugitive in the U.S. request
The Diplomatic Note described the applicant as follows:
| Raymond Joseph Desfosses is a Canadian citizen born on September 22, 1950 in Canada. He is described as a white male, 5'8" tall, weighs 150-170 pounds with grey hair and brown eyes. He is located at 3675 Landerneall, Trois Rivieres, Quebec. |
The information signed at Montreal on March 23, 1992, by Kevin McGarr, a detective sergeant, described the applicant as follows:
| Raymond Desfosse was born on the 22nd of September, 1950. He is a Canadian citizen. He is 5'8" tall, weighs 150-170 pounds, has grey hair and brown eyes. Raymond Desfosse is presently living at 3675 Landerneau, Trois-Rivières, Quebec. |
In his reasons for decision, Ducros J. refers to a photo of the applicant identified on February 18, 1992, which is the same photo as the one annexed to the affidavit of John Quitoni. The learned judge also mentioned that he heard the evidence of the wife of the applicant who stated that her husband "avait les yeux pairs", i.e. that could appear at times to be grey or blue according to the clothing he was wearing. The extradition judge identified the applicant as the fugitive sought by the Americans.
The applicant's counsel referred to evidence from other persons to the effect that the person they saw on the scene of the crime looked different. I presume these witnesses will be called at the trial, but for extradition purposes the decision of the Canadian extradition judge still stands.
(14) - The absence of clear and convincing evidence
For the reasons mentioned earlier, the Minister had before him the evidence necessary under the Act and the Treaty to compel him to fulfil his obligations and to order the surrender.
(15) - The death penalty
As mentioned earlier, the Minister stated in his decision that "while this case originally involved the possible imposition of the death penalty upon conviction, the competent prosecution authorities of that state have advised in writing that the death penalty will not be sought against Mr. DesFossés". He concluded that in view of that assurance on the part of the Florida authorities, he need not seek further assurances under Article 6 of the Treaty: therefore surrender would not be refused on that ground.
In the course of the hearing before me, counsel for the applicant argued that he had seen no such document from U.S. authorities and that he feared that his client would have no written guarantee should he be surrendered for trial in Florida. I pointed out that, if necessary, the Court could order the Minister to file the assurance in question but that there was no reason to cast doubt on the integrity of the Minister. Counsel did not raise the matter any further.
(16) - Section 7 of the Charter
Section 7 of the Charter endows everyone with the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. As mentioned earlier, it has already been held by the Supreme Court of Canada that surrender of a person by way of extradition is not a violation of his rights, provided the extradition is carried out in accordance with the principles of fundamental justice.
The applicant raised at this judicial review hearing of the Minister's decision several allegations of miscarriage of justice, or denial of fundamental rights, or failure to abide by the principles of procedural fairness, having occurred at several stages of the extradition proceedings. Surely, all these arguments were made at the proper time throughout the several hearings and appeals thereof. So far, all judicial decisions in this matter have been confirmed.
(17) - The integrity of the Canadian judicial system
This final argument is a compendium of all the others and must suffer the same fate. It is not for the Minister to go behind the decisions of the Superior Court judges or the Appeal Courts. The judges in question are neither deaf nor blind. They must be viewed by the Minister as honest and competent. If the U.S. authorities have painted a false picture and "deliberately fooled Canadian judges", as claimed by the applicant, it will all come out at the trial.
I hasten to add that counsel for the applicant did not allege that the Canadian judges were less than honest and competent. The thrust of his argument is to the effect that it has been discovered since the extradition hearings that the case presented by the U.S. authorities is loaded with contradictions, inconsistencies and even perjury. If that be so, the applicant will eventually have the opportunity to prove it in the proper forum. Meanwhile, the requesting state has advanced sufficient evidence to establish a prima facie case for extradition and no case of real substance has been made to quash the Minister's decision.
| 5. Disposition |
For all these reasons, this application for judicial review is dismissed.
O T T A W A
October 16, 1996
Judge
__________________1 R.S.C. 1985, c 10.
2 R.S.C. 1985, c. E-23.
3 P.W. Hogg, Constitutional Law of Canada, 2nd ed., at p. 241.
4 Third Edition, by Anne Warner La Forest.
5 United States of America v. Cotroni (1989), 48 C.C.C. (3d) 193, at pp. 215-16.
6 Idziak v. Canada (Minister of Justice) 77 C.C.C. (3d) 65.
7 (1986), 69 N.R. 227 (Fed. C.A.).
8 (1987), 33 C.C.C. (3d) 193 (S.C.C.) at p. 250.
9 [1992] 3 S.C.R. 475.
10 United States of America v. Shepperd (1976), 30 C.C.C. (2d) 424 (S.C.C.).
11 supra, no. 7.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1945-95
STYLE OF CAUSE: Raymond DesFosses v.
Allan Rock, Minister of Justice of Canada
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: September 30 & October 1,2, 1996 REASONS FOR ORDER OF: The Honourable Mr. Justice Dube DATED: October 16, 1996
APPEARANCES:
Mr. Jack Waissman FOR THE APPLICANT Ms. Isabelle Teolsis
Mr. Morris Manning Q.C.
SOLICITORS OF RECORD:
Laurin, Frigon, Waissman FOR THE APPLICANT Montreal, Quebec
George Thompson FOR THE RESPONDENT Deputy Attorney General of Canada
Mr. David Lucas FOR THE RESPONDENT Mr. Eric Lafreniere