Henry C. Fischbacher
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File No. 32842 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO) B E T W E E N: THE MINISTER OF JUSTICE APPLICANT - and - HENRY C. FISCHBACHER RESPONDENT _____________________________________________________ FACTUM OF THE RESPONDENT (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada) _____________________________________________________ Gregory Lafontaine & Vincenzo Rondinelli Eugene Meehan, Q.C. LAFONTAINE & ASSOCIATES LANG MICHENER LLP 127 John Street 300-50 O’Connor Street Toronto, ON M5V 2E2 Ottawa, ON K1P 6L2 Tel: 416-204-1835 Tel: 613-232-7171 Fax: 416-204-1835 Fax: 613-231-3191 [email protected] [email protected] Counsel for the Respondent Agent for the Respondent Department of Justice Canada John H. Sims, Q.C. 1161- 284 Wellington Street DEPUTY ATTORNEY GENERAL OF CANADA Ottawa, ON K1A 0H8 1161-234 Wellington Street Per: Janet Henchey and Nancy Dennison Ottawa, ON K1A 0H8 Tel: 613-948-3003 Per: Robert J. Frater Fax: 613-957-8412 Tel: 613-957-4763 [email protected] Fax: 613-954-1920 [email protected] [email protected] Counsel for the Appellant Agent for the Appellant File No. 32842 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO) B E T W E E N: THE MINISTER OF JUSTICE APPLICANT - and - HENRY C. FISCHBACHER RESPONDENT _____________________________________________________ RESPONDENT’S FACTUM (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada) _____________________________________________________ TABLE OF CONTENTS Page PART I – STATEMENT OF FACTS 1 A. Overview 1 B. The Allegations 2 C. Procedural Overview 3 PART II – QUESTIONS IN ISSUE 7 PART III – STATEMENT OF ARGUMENT 8 A. “Misalignment Test” Consistent With Extradition Law Principles 8 i. What the Court of Appeal Actually Decided 8 ii. Framing the Real Issue to be Determined 9 iii. Omnia Causa Fiunt 10 iv. Double Criminality Principles are not Engaged 12 v. The Principle of Comity is not Engaged 13 vi. The Karas Case 16 B. The Minister’s Decision to Surrender was Unjust and Unreasonable 17 i. The Forgotten Step: The Minister Usurped the Function of the Extradition Judge 17 ii. The Proper Role of the Minister 21 iii. The Offences of 1st & 2nd Degree Murder: The Same in Arizona and in Canada 24 C. Conclusion 30 PART IV - SUMISSION OF COSTS 32 PART V - ORDER REQUESTED 33 PART VI - TABLE OF AUTHORITIES 34 PART VII – RELEVANT LEGISLATIVE PROVISIONS 38 APPENDIX “A” 39 RESPONDENT’S FACTUM PART I - STATEMENT OF FACTS A. Overview 1. Henry Fischbacher has not asked for much from Canada’s extradition process. He understands that he will be returned to the State of Arizona to face trial. He accepts that an Arizona jury has the authority to decide whether he is (i) not guilty, (ii) not criminally responsible, (iii) guilty of manslaughter, or (iv) guilty of second degree murder. If that were all, he would have willingly submitted to extradition more than two years ago. 2. However, Mr. Fischbacher cannot accept that he should be extradited to Arizona to face trial for the offence of first degree murder. Mr. Fischbacher’s position throughout these proceedings has been that the death of Lisa Fischbacher was not the product of a premeditated murder or put differently, a planned and deliberate murder. His position has been that there is no evidence that this is a case of premeditated murder. 3. So far as matters of substance have been concerned, the Minister of Justice does not appear to have ever really disagreed with Mr. Fischbacher. The Minister has never seriously contended that sufficient evidence existed to sustain a conclusion of “planning and deliberation”. The Minister has never seriously contended that the concept of “planning and deliberation” in Canadian law is not the functional equivalent of “premeditation” in Arizona law. And the Minister has never seriously taken issue with the logically inevitable result flowing from the combination of the first two propositions – that absolutely no evidence exists that could sustain a conclusion of premeditation. In the end, the Minister does not seem to really disagree with Mr. Fischbacher that, in reality, Arizona does not have a case of first degree murder against him. 2 4. Henry Fischbacher asked the Minister to surrender him to Arizona on terms that, by the operation of the Rule of Specialty, would limit his potential liability to the Arizona offence of second degree murder. The Minister declined the request and ordered that Mr. Fischbacher be surrendered on the Arizona offence of first degree murder. The Minister has not contended that the discretion does not exist that could accommodate a surrender Order that limited potential liability to the Arizona offence of second degree murder. Rather, it would seem that the Minister’s disagreement with the Court of Appeal is that the Minister does not accept that the entire absence of any evidence in support of an element of a foreign offence should fetter the minister’s otherwise almost unlimited discretion to, if the Minister so chooses, surrender for that offence.. B. The Allegations 5. The Respondent does not have a criminal record in the United States or in Canada. He has, however, suffered for many years from bipolar disorder, a very serious mental illness. The Respondent was first diagnosed with bipolar disorder in 1992, while he and his wife Lisa Fischbacher were residing in Chicago. 6. Generally speaking, the allegation was that on the evening of Thursday, October 5th, 2006, in the course of a heated argument with his wife, Lisa Fischbacher, at their home in Tucson, Arizona, the Respondent struck her on the head several times with a flashlight, rendering her unconscious. The Respondent then dragged her body from the house and into a swimming pool in their backyard. The pathology report prepared in this case indicated that the cause of death was multiple traumatic injuries, including blunt injuries to the head and findings consistent with asphyxia. - Amended Record of the Case, , Appellant’s Record, pp. 71-75. 7. After his wife’s death, the Respondent travelled to Canada and, after entering Canada, drove to reach Parry Sound. At 3:00 o’clock in the morning on Saturday, October 7th, 2006, he checked into a motel room at the Comfort Inn in Parry Sound. He purchased a knife and some other items later that morning and, at some point after returning to the hotel room, attempted to take his own life. Just before noon on Monday, 3 October 9th, 2006, as long as two days after the suicide attempt, the authorities discovered the Respondent in the motel room. He was very seriously injured and was taken to the Parry Sound District Hospital, where he underwent surgery necessary to save his life. The Respondent remained hospitalized and under the watch of law enforcement until his arrest on October 11th, 2006, on the provisional warrant. On October 12th, 2006, the Respondent was discharged from hospital and taken to the Central North Correctional Centre, where he has remained in custody pending these extradition proceedings. C. Procedural Overview 8. The Respondent was arrested on October 11th, 2006 on the strength of a provisional warrant, issued pursuant to section 13 of the Extradition Act, and detained in custody pending proceedings arising out of a request for his extradition made to Canada by the United States of America. 9. By way of a diplomatic note dated December 7th, 2006, the United States subsequently made a formal diplomatic request for the extradition of the Respondent for, to borrow the Appellant’s words, “the offence of first degree murder.” 10. On January 8th, 2007, an Authority to Proceed [hereinafter “the ATP”] was issued pursuant to section 15 of the Extradition Act, listing a single corresponding Canadian offence in the following terms: “Murder, contrary to section 231 of the Criminal Code.” 11. The extradition hearing proceeded in Parry Sound before the Honourable Mr. Justice O’Neill of Ontario’s Superior Court of Justice on June 4th, 2007. In a response to the Respondent’s position that the Authority to Proceed must be interpreted as indicating a corresponding Canadian offence second-degree murder, the Appellant indicated that in the event of an adverse ruling on the point, the Appellant would seek an amendment of the Authority to Proceed to particularize the corresponding Canadian offence as one of first degree murder. 4 12. The evidence tendered at the hearing was comprised of the “Amended Record of the Case” filed by the United States. In a brief oral Ruling provided at the end of the hearing on June 4th, 2007, the extradition hearing Judge held that the evidence supported a committal for extradition on the corresponding Canadian offence of second-degree murder but did not support a committal for the more serious offence of first degree- murder. The extradition hearing Judge committed the Respondent for extradition on the corresponding Canadian offence of second-degree murder. In view of the request for an amendment of the Authority to Proceed and the agreement of counsel that the matter should proceed to a consideration of the sufficiency of the evidence on first versus second degree murder, the committal decision amounted to a discharge for the offence of first degree murder. 13. On October 25th, 2007, written reasons in respect of the committal decision were released by the extradition hearing Judge. As for the absence of evidence of planning and deliberation, Justice O’Neill examined the evidence and reviewed the applicable law, then determined as follows: [34] Lisa Fischbacher's death occurred in the context of a domestic argument. The respondent punched his wife in the face and he then hit her on the back of the head with a flashlight.