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.

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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.

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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. She was unconscious after the blows to the head and the respondent dragged her out to the swimming pool. He told his sister that he thought he had killed his wife - he thought he had drowned her. The cause of death was determined to be multiple traumatic injuries, including blunt injuries to the head and findings consistent with asphyxia. [35] There is no evidence that the murder was both planned and deliberate. There is no indication that it was a calculated scheme or design that had been carefully thought out, or that the consequences of the murder had been thought over and sized up. [36] The circumstances of

* the domestic argument and the killing, * the clear trail of blood and the discarding of the flashlight by the sliding glass door, * the leaving of the body in the pool, * the drive to the airport in Phoenix, Arizona, * the leasing of the vehicle at Buffalo International Airport, * and the call to the sister 5

do not, in my view, point to a calculated scheme or design that had been carefully thought out, or one that the respondent took time to weigh the advantages and disadvantages of. Accordingly, I conclude that in these circumstances, the evidence establishes a prima facie case of second degree murder.

- Reasons of O’Neill, J. for Judgment on Committal, Appellant’s Record, p. 18 at paras. 34-6.

14. The Appellant did not appeal against the refusal to commit the Respondent on a charge of first degree murder.

15. On November 23rd, 2007, the Respondent’s submissions on surrender were sent to the Minister of Justice. A short time later, under a cover letter dated January 2nd, 2008, the Respondent’s materials were supplemented with a legal opinion dated December 18th, 2007, prepared by Stephen M. Weiss, an Arizona attorney. Mr. Weiss compared first degree murder by “premeditation”, the offence charged against the Respondent, against the findings of the extradition Judge and concluded, as stated by Justice Doherty on behalf of the Court of Appeal, that:

“… the requirement of premeditation for first degree murder in Arizona was akin to the requirements of planning and deliberation for first degree murder in Canada. Counsel also provided the relevant statutory material from Arizona indicating that the punishment for first degree murder, even excluding the possibility of the death penalty, was significantly greater than the potential penalty for second degree murder.”

- Reasons of the Ontario Court of Appeal, Appellant’s Record, p. 30 at para. 12.

16. On March 17, 2008, the Minister of Justice, after receiving written submissions on behalf of the Respondent urging that the Respondent’s surrender be limited in accordance with the determinations made by the extradition Judge, ordered that the Respondent be surrendered to the United States for prosecution on one count of first- degree murder conditional on the receipt of sufficient assurances by the United States that the death penalty will not be imposed or carried out against the Respondent. In a portion of the Reasons for Surrender that bore a similarity to the submissions rejected by the extradition Judge at the hearing, the Minister effectively reversed the extradition Judge 6

and, on surrender, reinstalled the view of the first versus second degree murder issue that presumably, had driven the content of the Authority to Proceed but that had been rejected by the extradition Judge. - Letter from the Minister of Justice dated March 17, 2008, Appellant’s Record, p. 23.

17. In a passage that was very reminiscent of a “list” or “offence matching” approach to extradition requests, the Minister offered the following window into the seemingly “non-conduct” driven logic applied in the Respondent’s case:

… in the context of extradition, once the extradition judge has concluded that there is sufficient evidence to justify a committal for the Canadian offence of murder, double criminality has been established for any foreign murder charge irrespective of the degree [cites omitted].

- Letter from the Minister of Justice dated March 17, 2008, Appellant’s Record, p. 23.

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PART II – QUESTIONS IN ISSUE

18. The Appellant frames issues on this appeal as: 1) Did the Court of Appeal err in requiring that a “misalignment test” be applied in considering if surrender was appropriate in the absence of any such requirement in either the Extradition Act or in the Treaty?

2) Did the Court of Appeal further err in finding that the order surrendering the Respondent to the United States of America on the American offence of first degree murder was unjust and unreasonable?

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PART III – STATEMENT OF ARGUMENT

A. “Misalignment Test” Consistent With Extradition Law Principles i. What the Court of Appeal Actually Decided

19. It is respectfully submitted that the Appellant has miscast the conclusion of the Court of Appeal as a product of offence matching – that the Canadian offence of second degree murder does not “align” with the Arizona offence of first degree murder, as follows:

The Court held that, while the surrender order satisfied the principle of double criminality, it would be unjust or oppressive to surrender the Respondent for the offence of first degree murder as there was a “misalignment” between the American offence on which the Respondent was ordered surrendered and the Canadian offence for which his committal was ordered. [Emphasis added.]

- See Appellant’s Factum, paragraph 14.

20. Similarly, the principle that has emerged from the line of authority relied upon by the Court of Appeal has been misstated as a product of offence matching, as follows:

In coming to this conclusion, the Court of Appeal considered several recent cases that introduced a new requirement of “aligning” or “matching” the Canadian offences for which committal was ordered with the foreign offences in the surrender order. [Emphasis added.]

- See Appellant’s Factum, paragraph 15.

21. The Minister has not accurately articulated: (1) the analysis that has been developed by the line of authority at issue, or (2) the analysis employed by the Court of Appeal in this matter. To the contrary, the corresponding Canadian offence listed in the committal Order was not central to the Court of Appeal’s decision. Rather, the conclusion that there was no evidence of “conduct” amounting to premeditation at the extradition hearing was central to a result obtained by the fundamentally different and legislatively mandated approach of conduct driven analysis. In explaining the principle from the cases, casting the issue on the judicial review and in stating the conclusion, all in terms that do not seem particularly ambiguous, the Court of Appeal held: 9

The three cases in this court that have followed and applied Reumayr demonstrate that differences between the offence in the surrender order and the offence for which the fugitive was committed will render the surrender order unreasonable only in limited circumstances. *** Goudge J.A. was careful to distinguish between cases where there was some evidence to support all of the essential elements of the foreign charge led at the committal and cases where there was no evidence of an essential element. It was only in the latter circumstance that surrender on the foreign charge would amount to surrender for an offence substantially beyond that supported by the evidence. *** The question is whether the Minister acted unreasonably in deciding that it was not unjust to order the applicant surrendered on a charge of first degree murder after the requesting state failed to lead any evidence to support an essential element of that charge at the committal proceeding. *** Given the absence of any evidence of premeditation at the committal proceeding, the Minister’s decision to surrender the applicant for the clearly more serious allegation of first degree murder is substantively inconsistent with the evidence led at the committal hearing. The Minister’s decision that it would not be unjust in these circumstances to surrender the applicant on the more serious charge is unreasonable. [Emphasis added.] - Reasons of the Ontario Court of Appeal, Appellant’s Record, pp. 33-37.

ii. Framing the Real Issue to be Determined

22. It is respectfully submitted that the issue before this Honourable Court is whether it was unjust to Order the Respondent’s surrender for extradition to face prosecution for an offence that substantively exceeds the offence supported by the conduct proven at the committal hearing. The Respondent respectfully submits that the Ontario Court of Appeal had correctly determined that the Minister of Justice acted unreasonably by extraditing the Respondent on the foreign charge of first degree murder, as that offence exists under Arizona law, in a surrender Order that described the offence as follows:

One count of first degree murder, in violation of Title 13, Arizona Revised Statutes, sections 1105, 603, 604, 703, and 710, as set out in Indictment number CR2006-3862 filed on October 19, 2006 in the Superior Court of the State of Arizona in and for the County of Pima. - Surrender Order, Appellant’s Record, p. 19. 10

23. It is submitted that the surrender Order in this appeal was not only unjust and/or unreasonable, it was also unlawful in that: (1) it exceeded the scope of a surrender as legally contemplated by the Extradition Act and, in particular, by section 58(b) of the Act, and (2) is contrary to the terms of the applicable Treaty by extraditing the Respondent for a foreign offence that cannot be made out on the established conduct, as Article 2(1) of the Treaty with the United States defines extradition offences as permitting extradition based on conduct, as follows:

“Extradition shall be granted for conduct which constitutes an offense punishable by the laws of both Contracting Parties by imprisonment or other form of detention for a term exceeding one year or any greater punishment.” [Emphasis added.]

- Treaty on Extradition Between Canada and the United States of America, E101349 - CTS 1991 No. 37 iii. Omnia Causa Fiunt1

24. Since 2003, whether tagged the “misalignment” doctrine or something else, a principle has been developed and discussed in thirteen decisions2, with seven decisions from the British Columbia Court of Appeal and six from the Ontario Court of Appeal. Although to varying degrees, in all thirteen3 cases, the principle was either: (1) expressly accepted as a component of Canada’s extradition jurisprudence, (2) considered with apparent approval or (3) mentioned without any qualification or question about its validity. The Respondent’s position draws considerable support not only from the number and quality of the decisions, but also from the total absence of a single decision from any Court that entirely rejects or questions the existence of some variation of the principle. Whether or not it was found applicable in a given case, the decisions, which have been listed below, have been unanimous that the principle is good and valid law:

1 A Latin phrase that translates to, “everything happens for a reason”. 2 From a look through the reported decisions, it seems incontestable that of the provincial appellate Courts, the British Columbia Court of Appeal and the Ontario Court of Appeal have heard the majority of the judicial review applications that have been brought pursuant to s. 57 of the Extradition Act. 3 In a fourteenth case, United States of America v. Anekwu, 2008 BCCA 138, the issue was raised but in view of the result of the appeal against committal, the issue was not considered. 11

British Columbia United States of America v. Reumayr, 2003 BCCA 375 [Reumayr 2003] Canada (Minister of Justice) v. Reumayr, 2005 BCCA 391 [Reumayr 2005] Karas v. Canada (Minister of Justice), 2007 BCCA 637 [Karas 2007] Canada (Minister of Justice) v. Narayan, 2008 BCCA 280 Danielson v. United States of America, 2008 BCCA 519 Karas v. Canada (Minister of Justice), 2009 BCCA 1 [Karas 2009] United States of America v. Hislop, 2009 BCCA 94

Ontario Saad v. United States of America, 2004 CanLII 9931 (ON C.A.) [Saad 2004] Canada (Attorney General) v. Saad, 2007 ONCA 75 [Saad 2007] Canada (Attorney General) v. Gorcyca, 2007 ONCA 76 United States of America v. Kissel, 2008 ONCA 208 Canada (Attorney General) v. Fischbacher, 2008 ONCA 571 France v. Ouzghar, 2009 ONCA 69

25. The Appellant has advanced the position that the cases prohibiting surrender to stand trial for an offence “substantially exceeding” the committal offences, represent an errant stream of case law. However, the Appellant has not even attempted to identify:

 the reason(s) for the emergence of the principle,

 the common thread(s) running through the cases that have embraced the principle and accepted its place in modern Canadian extradition law, and

 to identify the perceived potential for injustice that prompted the jurisprudential response developed by the provincial appellate Courts.

26. The Respondent respectfully submits that the principle at issue emerged as a direct result of a “disconnect” that has developed between the committal and surrender phases of the current extradition process. With respect, the “disconnect” is a product of a misperception by the Minister of Justice of the scope of the Minister’s discretion in drafting the surrender Order. The nature of the Ministerial misperception can be articulated as follows: 12

 The Minister of Justice has failed to recognize the scope of the discretion bestowed by section 58(b) of the Extradition Act, which does not permit surrender beyond the extradition crime established by the conduct underlying the committal.

27. The Ministerial misperception has occasionally resulted in surrender Orders that would permit extradition to a foreign state to face prosecution for a crime that substantively exceeded the crime established by the conduct underlying the committal. This was, it is submitted, the injustice perceived by the provincial appellate Courts that spawned the development of the body of “misalignment” jurisprudence. A rule has developed out of the cases that, “unless there is some adequate explanation from the Minister” a surrender Order on a charge that substantively exceeds the committal conduct “is presumptively unreasonable.”4 - Reasons of the Ontario Court of Appeal, Appellant’s Record, p. 35.

iv. Double Criminality Principles are not Engaged

28. The Appellant makes extensive submissions with respect to the application of double criminality [Paragraphs 21-44 of the Appellant’s Factum]. It is respectfully submitted that the case at bar neither engages nor offends the principles of double

4 As mentioned earlier, the Respondent’s research revealed that since 2003, concerns about surrender Orders being substantively excessive have been considered on thirteen occasions by the two provincial appellate Courts. The same research, which included a review of the official websites of both the British Columbia Court of Appeal and the Ontario Court of Appeal, revealed that since the beginning of 2003, the two Courts have determined a total 71 applications pursuant to section 57 of the Extradition Act for judicial review. The thirteen cases represent over 18% of the applications for judicial review heard by the two Courts since the beginning of 2003. Put differently, the issue has been raised on about one of every five judicial review applications brought before the two Courts. The Minister’s present approach to surrender Orders is not merely a concern shared by a not insignificant subgroup of applicants for judicial review, it has also been the only issue that has achieved any lasting success for an applicant – there are two such cases: the Respondent’s case and Kissel. Three British Columbia cases (United States of America v. Taylor, 2003 BCCA 250 – re: insufficient reasons, Reumayr and Karas) met with initial success but after being reconsidered by the Minister (Taylor & Reumayr), or after being referred for reconsideration by this Honourable Court (Karas), were determined in the Minister’s favour. [See Appendix “A” to the Respondent’s Factum for the complete list of decisions.] 13

criminality. Indeed, the Court below dispensed with a similar argument advanced by the Appellant in short shrift, holding:

[14] Counsel for the Minister sees this application as engaging the fundamental principles underlying the extradition process in Canada. I think the ambit is considerably narrower than that…

* * *

[16] I also do not interpret the applicant’s submissions as engaging the double criminality principle. The Minister’s surrender order clearly respects that principle. The conduct alleged by the requesting state constitutes the crime of murder in Canada.

- Reasons of the Ontario Court of Appeal, Appellant’s Record, p. 31.

29. The law is clear that it is for the extradition Judge to decide whether the conduct of the person sought by an extradition partner would have constituted an offence under domestic law, had the conduct occurred in Canada. It is respectfully submitted that is what properly occurred in this case. The relevant question remaining then, is whether the Minister’s surrender order was reasonable in light of this finding of the extradition Judge. - United States of America. v. Ferras; United States of America v. Latty, [2006] 2 S.C.R. 77 at para. 38.

v. The Principle of Comity is not Engaged

30. It is respectfully submitted that the issue in this appeal is not about the comity or Canadian interference with the trial process of a foreign state. The Appellant’s factum has made repetitive assertions that, in effect, any Canadian assessment of the content of the surrender Order against the committal conduct would amount to an affront to international relations.

31. The Appellant’s factum has invoked the principle of comity in the plural, recasting it as the “principles of comity and respect for other jurisdictions”. As the phrase “respect for other jurisdictions” defines “comity”, its inclusion adds very little. Justice LaForest defined comity as “the informing principle of private international law, which has 14

been stated to be the deference and respect due by other states to the actions of a state legitimately taken within its territory”, and then more expansively as follows:

I much prefer the more complete formulation of the idea of comity adopted by the Supreme Court of the United States in Hilton v. Guyot, 159 U.S. 113 (1895), at pp. 163-64, in a passage cited by Estey J. in Spencer v. The Queen, [1985] 2 S.C.R. 278, at p. 283, as follows:

“Comity” in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws . . .

- Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077.

32. It is respectfully submitted that the principle of comity has no application to the issue in this case. The principle derived from Reumayr cannot diminish Canada’s “respect for other jurisdictions”. An analysis of the Appellant’s main submission on the point serves as an example. The Appellant’s paragraph 1, in part, reads:

Although the evidence in support of the extradition request was certified by the United States to be sufficient to justify an American prosecution for first degree murder, and the Respondent had been indicted on first degree murder by an American Grand Jury, the Court of Appeal held that, in its view, the evidence did not support all the elements of the American offence of first degree murder …

- See Appellant’s Factum, para. 1.

33. The foreign decisions reflected by the Indictment and Certification necessarily include a conclusion that the person sought for extradition is the perpetrator. In the absence of any evidence that the person sought was the perpetrator, there would be a complete discharge at the extradition hearing stage. It would not be considered an affront to comity. The complete discharge would be fundamentally at odds with the decision of the grand jury to indict and of the foreign state to certify. It could not, of course, be criticized as offending the principle of comity.

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34. Further, the foreign decisions reflected by the Indictment and Certification necessarily include a conclusion that the criminal act (or actus reus) of the foreign offence was committed. In the absence of any evidence that there was any conduct amounting to the criminal act (or actus reus), there would be a complete discharge at the extradition hearing stage. The complete discharge would be fundamentally at odds with the decision of the grand jury to indict and of the foreign state to certify. It could not be criticized as offending the principle of comity.

35. Finally, in the far from uncommon scenario of an extradition request involving a multi-count foreign Indictment, the foreign decisions reflected by the Indictment and Certification necessarily include a conclusion that the evidence justified a prosecution for a number of criminal offences. In the absence of any evidence of some of the conduct underlying the charges, there could be a partial discharge and/or a determination that the committal conduct could not support surrender on every foreign offence included in the request.5 In respect of the foreign offences not included in the surrender Order, the result would be fundamentally at odds with the decision of the grand jury to indict and of the foreign state to certify. It could not be criticized as offending the principle of comity.

36. As the Appellant has suggested, the foreign decisions reflected by the Indictment and Certification for first degree murder necessarily included a conclusion that there was conduct that amounted to premeditation. In the absence of any evidence of premeditation, there was a partial discharge after the extradition hearing, which the Court of Appeal concluded, in effect, must be reflected in the surrender Order. The decision of the Court of Appeal and the extradition Judge were fundamentally at odds with a single component of the decision of the grand jury to indict and of the foreign state to certify, yet cannot logically be criticized as offending the principle of comity.

37. On the Appellant’s approach, it is respectfully submitted that every decision by an extradition Judge or the Minister that resulted in the refusal of all or part of an extradition

5 See, for example, United States of America v. Kissel, 2008 ONCA 208, which the Appellant’s factum does not appear to suggest was wrongly decided. 16

request would thereby offend the principle of comity. Carried to the extreme, the only way to avoid ever running afoul comity would be to entirely abolish the extradition process and replace it with extradition on demand.

38. By definition, comity cannot possibly be other than a proverbial “two way street”. Comity would seem capable of accommodating, if not requiring the respect of a requesting state for the result of extradition proceedings in the requested state, particularly where the result was the product of bona fide determinations in accordance with the requested state’s extradition laws and any applicable Treaty or agreement.

vi. The Karas Case

39. The Appellant’s discussion of the Karas case merits a response. The Respondent’s position is that the chronology of Karas does not provide a glowing example of an extradition scheme that operated premised on the Rule of Law.

40. Canada’s extradition relationship with Thailand seems less than fully modernized. In fact, to the extent there is one, Canada’s extradition relationship with Thailand is based on an antiquated “list treaty” between the King of England and the King of Siam, that came into effect in Canada on November 24th, 1911.

- Treaty between the United Kingdom and Siam respecting the Extradition of Fugitive Criminals, E103417.

41. Karas was wanted in Thailand on a charge of capital murder. His extradition hearing ended in a committal on a charge of manslaughter and a discharge on a charge of murder. Although there was more than one variation as a result of the issuance of amended Orders, the Minister issued a surrender Order that, at the beginning, was designed to accommodate a return to Thailand to face trial for manslaughter and that required, in any event, that Thailand first provide assurances that the death penalty would not be sought. A confusing series of events followed involving various diplomatic exchanges between Canada and Thailand, during which Thai officials seemed less than unanimous about the correct interpretation of Thai law. The upshot was that Thailand claimed a legal inability to accept the surrender of a fugitive for anything less than what 17

Thailand had been requested – capital murder without assurances that the death penalty would be imposed. It claimed it could not legally accept Karas on a charge of manslaughter and could not legally provide death penalty assurances.6

42. Some might have criticized Thailand’s respect for comity in view of its failure to implement legislative reforms that could better accommodate modern extradition relationships, and in view of its steadfast refusal to accept anything less than exactly what it had requested regardless of the result achieved under Canadian extradition law. In the end, the Canadian system bowed to the demands of Thailand.

43. It is submitted that the principle of comity cannot possibly demand that Canadian extradition law become flexible to the point that it is effectively no longer tethered to principle or a body of clear rules, so as to permit Canada to accommodate the demands of unreasonably inflexible requesting states and from requesting states that have not developed a sufficiently modern legal infrastructure to accommodate the legal requirements of a modern extradition relationship.

B. The Minister’s Decision to Surrender was Unjust and Unreasonable

i. The Forgotten Step: The Minister Usurped the Function of the Extradition Judge

44. In its effort to defend the reasonableness of the Minister’s surrender order, it is respectfully submitted that the Appellant wholly ignores one of the two fundamental phases in the Canadian extradition process: the judicial function. The extradition process involves separate judicial and ministerial phases. The distinction between each phase was described by Justice Cory in Idziak v. Canada (Minister of Justice) as such:

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 extradition exists. If that process results in the issuance of a 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

6 Presumably a function of the long past era when it was negotiated, the Treaty with Siam does not include the death penalty assurances term that can be found in all but the various equally antiquated extradition agreement between Canada and other states. 18

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.

- Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631.

45. Although Idziak dealt with the former Extradition Act, it is respectfully submitted that Justice Cory’s comments are equally applicable to the current Extradition Act as the new Act maintains the dual structure comprised of a judicial decision-making phase and a ministerial discretionary phase.

46. The judicial decision-making phase of the extradition process recently came under the scrutiny of this Honourable Court in United States of America. v. Ferras; United States of America v. Latty where the Court emphasized the need for a separate and independent judicial phase that “must provide a real protection against extradition in the absence of an adequate case against the person sought.” In expanding the powers of an extradition Judge as previously delineated by United States of America v. Shephard, the Court held:

On this view of the law, the combined effect of the relevant provisions (ss. 29, 32 and 33 of the Act) may be to deprive the person sought of the independent hearing and evaluation required by the principles of fundamental justice applicable to extradition. If the extradition judge possesses neither the ability to declare unreliable evidence inadmissible nor to weigh and consider the sufficiency of the evidence, committal for extradition could occur in circumstances where committal for trial in Canada would not be justified. I take as axiomatic that a person could not be committed for trial for an offence in Canada if the evidence is so manifestly unreliable that it would be unsafe to rest a verdict upon it. It follows that if a judge on an extradition hearing concludes that the evidence is manifestly unreliable, the judge should not order extradition under s. 29(1). Yet, under the current state of the law in Shephard, it appears that the judge is denied this possibility. Similarly, I take it as axiomatic that a person could not be committed to trial for an offence in Canada if the evidence put against the person is not available for trial.

* * *

19

Section 29(1)’s direction to an extradition judge to determine whether there is admissible evidence that would “justify committal” requires a judge to assess whether admissible evidence shows the justice or rightness in committing a person for extradition. It is not enough for evidence to merely exist on each element of the crime. The evidence must be demonstrably able to be used by a reasonable, properly instructed jury to reach a verdict of guilty. If the evidence is incapable of demonstrating this sufficiency for committal, then it cannot “justify committal”. The evidence need not convince an extradition judge that a person sought is guilty of the alleged crimes. That assessment remains for the trial court in the foreign state. However, it must establish a case that could go to trial in Canada. This may require the extradition judge to engage in limited weighing of the evidence to determine, not ultimate guilt, but sufficiency of evidence for committal to trial. [Emphasis added.]

- United States of America. v. Ferras; United States of America v. Latty, supra at paras. 23, 40, and 46; - United States of America v. Shephard, [1977] 2 S.C.R. 1067.

47. It is respectfully submitted that the extradition Judge properly discharged his duty in assessing the evidence before him and finding 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. Counsel for the United States saw fit not to exercise its right under s. 49 of the Extradition Act to appeal this finding. The extradition Judge’s findings on committal are deemed to be just. The Minister does not act as an appeal court. As the Court below held:

[32] Coming back to the facts of this case, on the material before the Minister, the charge of first degree murder as defined in Arizona required proof that the murder was premeditated. The extradition judge found, and the Minister does not question this finding, that there was no evidence led at the committal proceeding that could support a finding that the alleged murder was planned and deliberate. The Minister also had information that the concept of premeditation as applied under Arizona law was similar to the notion of planning and deliberation under Canadian law. [Emphasis added.]

- Reasons of the Ontario Court of Appeal, Appellant’s Record, p. 35.

48. In determining that the Respondent should be surrendered for the offence of first- degree murder, the Minister simply stated:

20

In my view, the decision of the extradition judge to commit Mr. Fischbacher for the Canadian offence of second degree murder entitles me to surrender him to the United States of America to face prosecution for the requested offence of first degree murder and I am doing so.

- Letter from the Minister of Justice dated March 17, 2008, Appellant’s Record, p. 23.

49. It is respectfully submitted that the Minister’s Reasons fail to provide any meaningful analysis as to why the Minister is “entitled” to surrender the Respondent for the offence of first-degree murder in the face of the extradition Judge’s opposite conclusion on committal. The Minister’s Reasons do not expose any frailties on the part of the extradition Judge’s duty or analysis in assessing the evidence before him and concluding – to paraphrase Ferras – that the only case that could go to trial in Canada on the evidence before him, was one of second-degree murder. As this Court held in Lake, “Reasonableness does not require blind submission to the Minister’s assessment.” It is submitted that the Court below correctly identified the Minister’s broad discretion on the question of surrender and an appellate Court’s deferential treatment of the Minister’s decision. Justice Doherty stated: [17] Finally, the applicant does not challenge the now well-established standard of review that must be applied to a Minister’s surrender decision. This court must show deference to the Minister’s surrender decision and will interfere with the Minister’s decision only if in all of the circumstances his decision is properly described as unreasonable: see R. v. Lake (2008), 230 C.C.C. (3d) 449 at para. 34 (S.C.C.).

- Reasons of the Ontario Court of Appeal, Appellant’s Record, p. 31; - Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761.

50. It is respectfully submitted that the Ontario Court of Appeal was alive to the issue of the Minister’s role in the surrender process resulting from recent jurisprudence from this Honourable Court. The Ontario Court of Appeal demonstrated no difficulty in interpreting directives established by this Honourable Court in Ferras and Lake. Quite simply, those cases speak for themselves.

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ii. The Proper Role of the Minister

51. The Order for Surrender made by the Minister of Justice is the final step of the last stage of the three-part extradition process, as presently structured in Canada by the terms of the current Extradition Act. The content of the Order for Surrender is not insignificant. It is the procedural vehicle or mechanism, if not the only one, that gives the necessary consideration to the Rule of Specialty.

52. It is submitted that the Minister of Justice must make the Order in conformity with the various terms of s. 58 of the Extradition Act, which inter alia, requires that the Minister of Justice describe the delict upon which surrender is being ordered in one of three ways, as follows: 1) the offence in respect of which the extradition is requested,

2) the offence for which the committal was ordered, or

3) the conduct for which the person is to be surrendered.

53. It is submitted that s. 58(b) of the Extradition Act provides the Minister of Justice with three alternative methods of describing the end result of extradition proceedings in Canada. The alternatives serve to ensure the specification of the individual’s foreign liability in the surrender Order in a manner that accurately and fairly reflects the determination(s) made at the extradition hearing. Depending on the particular scenario, it may be argued that the language of s. 58(b) provides the Minister with three possible alternatives:

Choose #1: If committed for extradition for (i) Canadian corresponding offence that was listed AND (ii) all of the alleged conduct that was alleged to make out that Canadian corresponding offence; or

Choose #2: If committed for extradition for (i) something LESS than the Canadian corresponding offence that was listed BUT (ii) was committed for all of the conduct that was alleged to make out that Canadian corresponding offence (in the case at bar, there was only one single factual matter (conduct) underlying a single corresponding Canadian offence); or

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Choose #3: If committed for extradition for (i) either Canadian corresponding offence that was listed or for something LESS than Canadian corresponding offence that was listed but (ii) was not committed on all of the conduct that was alleged to make out as amounting to the Canadian corresponding offence (in the case at bar, there was only one single factual matter (conduct) underlying a single corresponding Canadian offence).

54. It is respectfully submitted that the Appellant’s position would not require the Minister to make the Order for Surrender in a manner that best and most fairly reflected the determination of the level or quality of the double criminality determined at the extradition hearing stage. Rather, the Appellant’s position would interpret s. 58 of the Extradition Act as a Ministerial trump card that, whenever played, would serve to veto the committal decision of the extradition Judge.

55. It is respectfully submitted that the Respondent’s case called for the Minister’s resort to the Respondent’s suggested option #2 above, for the following reasons:

At Stage one (Authority to Proceed stage) – Commencement of extradition or Authority to Proceed stage falls on the Minister. The Minister would have reviewed the U.S. request and decided it was “murder” and issued the Authority to Proceed that said “murder.”

At Stage two (Extradition Hearing) – The Respondent took issue with “murder” at the extradition hearing, arguing that it should be interpreted as “second-degree murder.” The Appellant’s response was: (1) “murder” just means “murder” or (2) if it means something else, an amendment would be sought and it would want a committal on first degree murder. It is respectfully submitted that the Appellant’s position at the extradition hearing clearly signaled that the difference between first-degree and second-degree murder did matter since the corresponding Canadian offence could have been the lowest common denominator in Canadian criminal law reflecting some criminality for the conduct at issue – i.e. simple assault. The extradition Judge headed off the issue of whether to grant an amendment by finding no evidence to commit for first in any event.

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At Stage three (Surrender Stage) – The requesting state obtained a committal for the factual transaction or delict at issue in the charge but for a lower level of liability alleged than had been determined to be appropriate for the Authority to Proceed. The requesting state had two choices: (1) appeal and ask the Court of Appeal for Ontario to hear why the committal should be for greater liability such as to bring it up to what was gauged by the Minister at Stage one in drafting the Authority to Proceed to be the level of liability in the offence as charged or (2) when considering surrender at Stage three, the Minister could preside over the same appeal against the decision of the extradition Judge made at Stage two against the Minister’s view at Stage one, essentially that the Minister of Justice was wrong at Stage one and had over-gauged the level of liability. In the instance at bar, the Minister heard his own appeal against the extradition Judge, without any argument from an opposing party, as they relied on the finding at Stage two that had not been appealed. In effect, the Minister allowed his own appeal which accepted and incorporated the submissions that the Appellant had filed but had failed with at the extradition hearing.

56. It is the Respondent’s position that the process envisaged by the legislation is a complex, but coherent one. It is the Respondent’s respectful position that issues of interpretation of provisions of the governing legislation should be considered against the backdrop of the entire legislative scheme and the interrelationship between the various stages of the process. These issues should be considered with a view to ensuring the stages function harmoniously within the overall process and that the determinations made by the responsible authority at each stage of the process do not become mere rubber stamps. It is respectfully submitted that the Minister’s veto approach amounts to the

Executive stripping the judiciary of its power by the near wholesale abolition of the extradition hearing as a meaningful process and the powers of the extradition Judge. 24

Should the position of the Appellant be correct, it will eliminate the role of the Court of

Appeal sitting on appeal of discharges.

57. It is respectfully submitted that the Minister cannot possibly have legal power to

exercise option #1 in section 58 of the Extradition Act to surrender for extradition for

foreign prosecution on an Order that creates more liability than an instance where there

had been resort to options #2 or #3.

iii. The Offences of 1st & 2nd Degree Murder: The Same in Arizona and in Canada

58. While the Respondent spent considerable effort in his submissions to the Minister in distinguishing the consequences of the legal conclusions between first and second degree murder, the Minister’s reply was brief in concluding that the difference between first and second degree murder lays at the sentencing phase and need not concern him for his decision to surrender. The Minister stated: Under Canadian law, first and second degree murder are not different offences. The classification of murder as either first or second degree is for sentencing purposes only and relates to the punishment that will be imposed upon conviction. (See R. v. Farrant, [1983] 1 S.C.R. 124; R. v. Droste, [1984] 1 S.C.R. 208). Accordingly, in the context of extradition, once the extradition judge has concluded that there is sufficient evidence to justify a committal for the Canadian offence of murder, double criminality has been established for any foreign murder charge irrespective of the degree. (See United States v. Bounnam, [1995] O.J. No. 877 (Gen. Div.); United States v. Chong, [1996] O.A.C. (C.A.), leave to appeal to the S.C.C. refused (1997), 99 O.A.C. 79 (note) (S.C.C.); United States v. Soffitt (1993), 36 B.C.A.C. 155, and United States v. Turner (2001), St. J. No. 3348 (S.C.)).

- Letter from the Minister of Justice dated March 17, 2008, Appellant’s Record, p. 23.

59. It is submitted that the applicability of these cases, most of which were decided under the previous extradition scheme, were litigated in the submissions before the extradition Judge. The findings made by the extradition Judge with respect to these cases were not challenged by an appeal by Counsel for the Requesting State. Although the Minister acts quasi-judicially on the surrender issue, it is submitted that his mandate does 25 not include sitting in review of an extradition Judge on an issue where the extradition Judge has ruled that the Minister was incorrect in his drafting of the ATP. For the Minister to unilaterally decide that his approach to drafting the ATP is correct without any check or balance from the extradition Judge or this Honourable Court would offend the rule of law.

60. It is further submitted that the Minister’s interpretation of the classification of murder is only half correct. The classification of murder is not only for sentencing purposes. This Honourable Court described the difference between first-degree murder and second-degree murder in R. v. Latimer as:

Parliament has classified murder offences into first and second degree based on its perception of relative levels of moral blameworthiness. Parliament has also provided for differential treatment between them in sentencing, but only in respect of parole ineligibility.

- R. v. Latimer, [2001] 1 S.C.R. 3 at para. 83.

61. It is respectfully submitted that once the hurdle of intent has been cleared, it is the conduct of an accused that drives the result of whether murder is first-degree or second- degree murder. Parliament has chosen to impose the most severe penalties on perpetrators that commit murder in a planned and deliberate fashion, and to those individuals who commit certain underlying offences listed in s. 231(5) of the Criminal Code. These murders are classified as first-degree due to the high moral blameworthiness associated with the conduct. This underlying conduct – whether it be planning and deliberation or other conduct set out in s. 231(5) – must be established by a trier of fact beyond a reasonable doubt. Hence it is the duty of the trial Judge or a jury to determine whether the Crown has proved planning and deliberation before finding the accused guilty of first- degree murder. It is the duty of the preliminary hearing Judge to determine whether sufficient evidence exists upon which a reasonable jury, properly instructed, could conclude that the murder was planned and deliberate before committing the accused to stand trial for first-degree murder. It is the duty of the extradition Judge to determine whether there was evidence of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence of first-degree murder before ordering the 26 committal of the person sought. It is submitted that if the Minister’s interpretation of the law is correct in restricting the classification of murder to sentencing purposes, then all of the aforementioned duties would be abdicated to a sentencing Judge or a Requesting State. This is not the law in Canada.

62. It is submitted that neither R. v. Droste, nor R. v. Farrant stand for the proposition stated by the Minister – that is, that the classification of murder is restricted to the punishment that will be imposed upon conviction. In both cases, this Court describes planning and deliberation as being essential elements of the offence of first-degree murder. In Farrant, the Court held:

The distinction between first and second degree murder in s. 214 is not based upon intent; it is based upon 1) the presence of planning and deliberation (s. 212(2)); 2) the identity of the victim (s. 214(4)); or 3) the nature of the offence being committed at the time of the murder (s. 214(5)). The primary and essential determination for a jury to make is whether murder has been committed, either under s. 212 or, where the evidence warrants it, under s. 213. Considerations of the distinctions between first and second degree murder are irrelevant in making this preliminary determination. Once the offence has been found, it is then classified. [Emphasis added.]

- R. v. Farrant, [1983] 1 S.C.R. 124.

63. In Droste, the Court held:

It is clear, then, that first degree murder and second degree murder are not different offences. The substantive offence is murder. The characterization of murder as being in the first degree or in the second degree is for sentencing purposes only. There is no question of transferring the intent to cause a s. 212(b) offence to the actus reus of first degree murder, nor is it a case of transferring the intent to commit first degree murder upon victim A to the actus reus of committing murder against victim B. I repeat, the substantive offence involved is murder under s. 212(b). The mens rea for that offence is intending the death or grievous bodily harm likely to cause death, to person A. The actus reus for this offence is causing the death of person.

Once these elements have been established, an accused is guilty of murder. Section 214(2) specifies one of several situations in which murder is murder in the first degree, namely, where “it” is planned and deliberate. The “it” refers to murder, committed in any of the relevant ways specified by the 27

Code, including s. 212(b). This means that the element of planning and deliberation must be related to the specific mens rea of the applicable section, which in the present case is, as I have just mentioned, intending to cause death to person A. There may be some mental states specified in ss. 212 or 213 which are incompatible with planning and deliberation, but this mens rea is not one of them. [Emphasis added.]

- Droste v. R., [1984] 1 S.C.R. 208.

64. It is respectfully submitted that this Court has re-iterated in a number of cases that “planning” and “deliberation” are separate and distinct essential elements of the offence of first-degree murder that the Crown must establish beyond a reasonable doubt. - R. v. Aalders, [1993] 2 S.C.R. 482; - More v. The Queen, [1963] S.C.R. 522.

65. On the evidence in this matter, counsel for the United States conceded that the only potentially available route to a committal for 1st degree murder in Canadian law was by way of “planning and deliberation”. In United States of America v. Gorcyca, the Ontario Court of Appeal held that a surrender order is presumptively unreasonable “where there is an absence of evidence on what would appear to be an essential element of the foreign charge in the surrender order”. An essential element of the conduct required for first degree murder is “planning” and “deliberation.” - Canada (Attorney General) v. Gorcyca, 2007 ONCA 76 at para. 64; - United States of America v. Kissel, 2008 ONCA 208 at para. 39.

66. The extradition hearing Judge found that the evidence before him was insufficient to establish both planning and deliberation. These findings were not challenged by Counsel for the United States by way of an appeal and should therefore be deemed to be correct. It is submitted that the Minister had no basis on the evidentiary record before him to hold otherwise. Indeed, the Minister pointed to absolutely no evidence to support either an inference of planning or deliberation. - Reasons of O’Neill, J. for Judgment on Committal, Appellant’s Record, p. 18 at paras. 34-6.

28

67. It is further submitted that the Appellant has never disagreed with the proposition of the Respondent, which was articulated in the submissions to the Minister that there are no meaningful differences between relevant provisions of the offences of 1st degree and 2nd degree murder in Canada law and the relevant provisions of the offences of 1st degree and 2nd degree murder in Arizona law.

68. Justice Doherty, on behalf of the Ontario Court of Appeal, reviewed the evidentiary record provided in the Respondent’s submissions to the Minister that established the parallel nature of the offences in the two jurisdictions and then identified the basis upon which the Minister attempted to extricate the Respondent’s case from the result that was seemingly compelled as a matter of law and logic by virtue of the findings of the extradition Judge, as follows: [12] In keeping with the scheme of the Act, it then fell to the Minister to determine whether the applicant should be surrendered and, if so, for what offence. In written submissions, counsel for the applicant took the position that the applicant should be surrendered on the offence of second degree murder contrary to the relevant Arizona statute. Counsel provided an opinion from an Arizona lawyer that the requirement of premeditation for first degree murder in Arizona was akin to the requirements of planning and deliberation for first degree murder in Canada. Counsel also provided the relevant statutory material from Arizona indicating that the punishment for first degree murder, even excluding the possibility of the death penalty, was significantly greater than the potential penalty for second degree murder. Counsel made this submission to the Minister: [T]he evidence in this matter and the legal conclusions on that evidence reached at the committal hearing have the impact of foreclosing a surrender Order framed such as to permit Mr. Fischbacher to be surrendered to the United States for trial for the offence of 1st degree murder, contrary to the Criminal Code of Arizona. It is conceded, however, that a surrender order would be appropriate that surrendered Mr. Fischbacher to the United States for trial for the offence of 2nd degree murder contrary to the Criminal Code of Arizona. [Emphasis added.]

[13] In exercising his discretion in favour of surrendering the applicant on the charge of first degree murder, the Minister rejected the contention that he was surrendering the applicant on an offence that was different from the offence for which the committal judge had committed him for surrender. The Minister opined: 29

Under Canadian law, first and second degree murder are not different offences. The classification of murder as either first or second degree is for sentencing purposes only and relates to the punishment that will be imposed upon conviction. Accordingly, in the context of extradition, once the extradition judge has concluded there is sufficient evidence to justify a committal for the Canadian offence of murder, double criminality has been established for any foreign murder charge irrespective of the degree. [Citations omitted; Emphasis added.]

- Reasons of the Ontario Court of Appeal, Appellant’s Record, p. 30.

69. The evidence contained in the Record of the Case was not complicated. On the evidence in this matter, the Appellant conceded at the extradition hearing that the only potentially available route to a committal for first-degree murder in Canadian law was by way of “planning and deliberation”. It followed then, per Ferras, that the extradition Judge had to make a judicial determination that the requesting state had established a prima facie case that the Respondent committed the crime alleged and should stand trial for it. - Ferras, supra, at para. 46.

70. The extradition Judge determined that there was no evidence led at the committal proceedings that could support a finding that the alleged murder was planned and deliberate. Again, the Appellant did not challenge this finding on appeal. The Appellant further did not challenge on appeal that premeditation is an essential element of the only potentially applicable definition of first-degree murder in the Arizona statute and that the concept of premeditation as applied under Arizona law was similar to the notion of planning and deliberation under Canadian law. Borrowing language from Ferras, it is respectfully submitted that this case could not go to trial on first-degree murder in Canada. Consequently, the unreasonableness of the Minister’s decision to surrender the Respondent is plainly exposed in light of the total absence of evidence at the committal proceeding on an essential element.

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C. Conclusion

71. The Appellant has not mounted any serious opposition to three matters that could be viewed as central to the issue to be determined in the Respondent’s case. Each issue was the subject of material adduced and accepted for consideration at either or both the committal hearing and determination of the surrender issue.

72. First, while the Appellant has clung to the old list treaty view of murder as a broad category that captures any of a number of possible, very distinct offences,7 the Appellant has not taken any issue with the determination of the extradition Judge that there was no evidence of “planning and deliberation.”

73. Second, the Appellant has not taken issue with the validity of the opinion placed before the Minister of Justice that “planning and deliberation” and “premeditation” amount to the functional equivalents of each other.8 In the Reumayr case, after the decision of the British Columbia Court of Appeal referring the surrender issue back to the Minister for reconsideration, the Minister took the approach that the Respondent took in this matter. In Reumayr, the Minister obtained and relied upon a legal opinion from an American attorney to bridge the apparent gap between the committal conduct and the foreign charge listed in the surrender Order. In this matter, the legal opinion adduced by the Respondent confirmed that the apparent gap was one of substance. In the face of that opinion, the Minister has either decided not to pursue a legal opinion from the American authorities9 or has obtained but decided not to disclose the legal opinion.10 In the

7 The earlier “list” variation of the Treaty referred to “Murder; assault with intent to commit murder.” 8 To be entirely accurate, the Appellant did make one oblique reference to the point that did not connote that the opinion was completely embraced by the Minister. However, the Appellant did not follow-up with any actual attack on the substance of the relevant portion of the Court of Appeal’s Judgment: “Based on what he characterized to be the “unchallenged” fact that premeditation was a required element for the offence of first degree murder in Arizona, and the fact that the requesting state had led no evidence of this element at the extradition hearing, Doherty J.A. concluded that the Minister’s surrender order was both “unjust” and “unreasonable.”” 9 In this scenario, the Minister may have simply satisfied himself that the opinion adduced by the Respondent was very much an accurate and reliable opinion. While the Respondent chose to prove the point by the more formal and legally-recognized means of adducing a legal opinion from a qualified foreign lawyer, as with “planning and deliberation”, the legal content of 31

circumstances, the Respondent respectfully suggests that an inference can be drawn that the Appellant has accepted the validity of the opinion adduced by the Respondent.

74. Third, although perhaps better cast as the logical product of the first two items and not an independent item, the Appellant has not mounted a challenge to the evidence adduced by the Respondent that the committal is not founded on any evidence of premeditation required for a conviction for first-degree murder under Arizona law. The Appellant has suggested that the Minister chose reliance on the foreign state’s certification that the case was adequate to justify a prosecution for first-degree murder. The “opinion” in the certification does not, of course, flow from a consideration limited to the conduct established at the committal hearing - a surrender cannot be effected on the basis of a case for extradition that was either never presented at the extradition hearing or that was dependent upon inferences that the extradition Judge determined were not reasonable inferences to draw. The Respondent’s respectful position is that the certification does not sit in opposition to the opinion adduced by the Respondent. It is qualitatively different. It is potentially founded upon different and irrelevant facts. It does not directly address the issue of whether the committal conduct substantiates the offence listed in the surrender Order.

“premeditation” is not an arcane, elusive or complex legal point. It is respectfully suggested that it would not have taken much of an investment in self-research time by a Canadian lawyer to confirm the accuracy of the opinion adduced by the Respondent. 10 This is not an attack on the integrity of the Minister or counsel to the Minister by way of an allegation of inappropriate non-disclosure. Rather, it is quite the opposite. It is premised on the assumption that any non-disclosure would be the product of a good faith determination that the opinion was protected from disclosure by privilege. 32

PART IV – SUBMISSION OF COSTS

75. The Respondent does not seek an order of costs.

33

PART V – ORDER REQUESTED

76. It is respectfully requested that the appeal be dismissed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

DATED at Toronto this day of May, 2009.

______Gregory Lafontaine Vincenzo Rondinelli LAFONTAINE & ASSOCIATES LAFONTAINE & ASSOCIATES Of Counsel for the Respondent Of Counsel for the Respondent

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PART VI – TABLE OF AUTHORITIES

Cases Cited Paragraph(s)

Adam v. United States of America, 2003 CanLII 31874 (ON C.A.) 27

Canada (Attorney General) v. Fischbacher, 2008 ONCA 571 24, 27

Canada (Attorney General) v. Gorcyca, 2007 ONCA 76 24, 27, 65

Canada (Attorney General) v. Saad, 2007 ONCA 75 24, 27

Canada (Attorney General) v. Schreiber, 2008 ONCA 575 27

Canada (Attorney General) v. Siyam, 2007 ONCA 297 27

Canada (Minister of Justice) v. Hajnis, 2006 CanLII (ON C.A.) 27

Canada (Minister of Justice) v. Hanson, 2005 BCCA 77 27

Canada (Minister of Justice) v. Kunze, 2005 BCCA 87 27

Canada (Minister of Justice) v. Mahoney, 2004 CanLII 25287 (ON C.A.) 27

Canada (Minister of Justice) v. Narayan, 2008 BCCA 280 24, 27

Canada (Minister of Justice) v. Reumayr, 2005 BCCA 391 24, 27

China v. Wong, 2009 ONCA 148 27

Danielson v. United States of America, 2008 BCCA 519 24, 27

Droste v. R., [1984] 1 S.C.R. 208. 63

Earles v. U.S.A., 2003 BCCA 20 27

France v. Liang, 2007 ONCA 741 27

France v. Ouzhgar, 2009 ONCA 69 24, 27

Ganis v. Canada (Minister of Justice), 2006 BCCA 543 27

Germany v. Schreiber, 2007 ONCA 354 27

The Hong Kong Special Administrative Region of the People’s Republic of China v. Chan, 2006 CanLII 38169 (ON C.A.) 27 35

Hong Kong Special Administrative Region of the People’s Republic of China v. Dai, 2006 BCCA 179 27

Hungary v. Dascalu, 2009 BCCA 132 27

Hungary v. Horvath, 2007 ONCA 734 27

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631 44

Italy v. Caruna, 2007 ONCA 488 27

Italy v. Seifert, 2007 BCCA 407 27

Karas v. Canada (Minister of Justice), 2007 BCCA 637 24, 27

Karas v. Canada (Minister of Justice), 2009 BCCA 1 24, 27

Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761 49

Manningham v. United Stated of America, 2004 CanLII 27432 (ON C.A.) 27

Maydak v. United States of America, 2004 BCCA 478 27

The Minister of Justice v. Kavaratzis, 2006 CanLII 13237 (ON C.A.) 27

Minister of Justice v. Thomson, 2005 CanLII 5078 (ON C.A.) 27

The Minster of Justice v. Kenrick Stewart Young (4 March 2005), Toronto C41827 (ON C.A.) 27

More v. The Queen, [1963] S.C.R. 522 64

Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077 31

R. v. Aalders, [1993] 2 S.C.R. 482 64

R. v. Farrant, [1983] 1 S.C.R. 124. 62

R. v. Latimer, [2001] 1 S.C.R. 3 60

Republic of India v. Singh, 2007 BCCA 157 27

Saad v. United States of America, 2004 CanLII 9931 (ON C.A.) 24, 27

Scarpitti v. United States of America, 2007 BCCA 498 27 36

Schreiber v. Canada (Attorney General), 2007 ONCA 791 27

Thailand v. Saxena, 2006 BCCA 98 27

U.S.A. v English, 2007 BCCA 169 27

U.S.A. v. Manns, 2004 BCCA 158 27

United States of America v. Anderson, 2007 ONCA 84 27

United States of America v. Anekwu, 2008 BCCA 138 24, 27

United States of America v. Budd, 2006 CanLII 20523 (ON C.A.) 27

United States of America v. Catano, 2007 ONCA 838 27

United States of America v. Chao, 2003 BCCA 458 27

United States of America v. Cheema, 2007 BCCA 341 27

United States of America v. Collins, 2008 ONCA 72 27

United States of America v. D.P.R., 2004 CanLII 39039 (ON C.A.) 27

United States of America. v. Ferras; United States of America v. Latty, [2006] 2 S.C.R. 77 34, 46, 69

United States of America v. Ferras, 2004 CanLII 29665 (ON C.A.) 27

United States of America v. Fong, 2005 CanLII 32190 (ON C.A.) 27

United States of America v. Fordham, 2005 BCCA 197 27

United States of America v. Gillingham, 2004 BCCA 226 27

United States of America v. Graziani, 2008 BCCA 79 27

United States of America v. Hardin, 2006 CanLII 21757 (ON C.A.) 27

United States of America v. Hislop, 2009 BCCA 94 24, 27

United States of America v. Kissel, 2008 ONCA 208 24, 27, 35, 65

United States of America v. Lake, 2006 CanLII 29924 (ON C.A.) 27

37

United States of America v. Latty, 2004 CanLII 27198 (ON C.A.) 27

United States of America v. Lillemo, 2005 BCCA 198 27

United States of America v. Magnifico, 2007 ONCA 535 27

United States of America v. McAmmond, 2005 CanLII 20 (ON C.A.) 27

United States of America v. Murshed, 2006 CanLII 10204 (ON C.A.) 27

United States of America v. Pal, 2008 BCCA 359 27

United States of America v. Pannell, 2007 ONCA 786 27

United States of America v. Park, 2009 ONCA 369 27

United States of America v. Prudenza, 2006 CanLII 36484 (ON C.A.) 27

United States of America v. Reumayr, 2003 BCCA 375 24, 27, 66

United States of America v. Saad, 2007 ONCA 75 27

United States of America v. Scott, 2004 CanLII 32175 (ON C.A.) 27

United States of America v. Shephard, [1977] 2 S.C.R. 1067 46

United States of America v. Singh, 2009 ONCA 247 27

United States of America v. Tariq, 2006 CanLII 21039 (ON C.A.) 27

United States of America v. Taylor, 2003 BCCA 250 27

United States of America v. Taylor, 2005 BCCA 440 27

United States of America v. Thomlison, 2007 ONCA 42 27

Waldman v. Ontario (Minister of Justice), 2003 CanLII 18021 (ON C.A.) 27

Treaties Cited Paragraph(s)

Treaty between the United Kingdom and Siam respecting the Extradition of Fugitive Criminals, E103417 40

Treaty on Extradition Between Canada and the United States of America, E101349 - CTS 1991 No. 37 23 38

PART VII – RELEVANT LEGISLATIVE PROVISIONS

- See Appellant’s Factum 39

APPENDIX “A”

Summary of Judicial Review Applications in the British Columbia and Ontario Courts of Appeal Since 2003

1. Adam v. United States of America, 2003 CanLII 31874 (ON C.A.) – application for judicial review dismissed

2. Waldman v. Ontario (Minister of Justice), 2003 CanLII 18021 (ON C.A.) – application for judicial review dismissed

3. United States of America v. Scott, 2004 CanLII 32175 (ON C.A.) – application for judicial review dismissed

4. United States of America v. D.P.R., 2004 CanLII 39039 (ON C.A.) – application for judicial review dismissed

5. United States of America v. Taylor, 2003 BCCA 250 – Minister’s decision to surrender set aside due to procedural unfairness, Minister directed to explain his conclusion for surrender

6. United States of America v. Taylor, 2005 BCCA 440 – application for judicial review of the Minister’s reconsideration dismissed

7. Earles v. U.S.A., 2003 BCCA 20 – application for judicial review dismissed

8. United States of America v. Chao, 2003 BCCA 458 – application for judicial review dismissed

9. United States of America v. Reumayr, 2003 BCCA 375 – application for judicial review allowed

10. Saad v. United States of America, 2004 CanLII 9931 (ON C.A.) – submissions on the application for judicial review not given effect

11. Canada (Minister of Justice) v. Mahoney, 2004 CanLII 25287 (ON C.A.) – application for judicial review dismissed

12. Manningham v. United Stated of America, 2004 CanLII 27432 (ON C.A.) – application for judicial review dismissed

13. United States of America v. Latty, 2004 CanLII 27198 (ON C.A.) – application for judicial review dismissed

14. United States of America v. Ferras, 2004 CanLII 29665 (ON C.A.) – application for judicial review dismissed 40

15. United States of America v. Gillingham, 2004 BCCA 226 – application for judicial review dismissed

16. Maydak v. United States of America, 2004 BCCA 478 – application for judicial review dismissed

17. U.S.A. v. Manns, 2004 BCCA 158 – application for judicial review not considered as surrender order quashed due to failure of Minister to meet certain time limits in Extradition Act

18. The Minster of Justice v. Kenrick Stewart Young (4 March 2005), Toronto C41827 (ON C.A.) – application for judicial review dismissed

19. United States of America v. Fong, 2005 CanLII 32190 (ON C.A.) – application for judicial review dismissed

20. United States of America v. McAmmond, 2005 CanLII 20 (ON C.A.) – application for judicial review dismissed

21. Minister of Justice v. Thomson, 2005 CanLII 5078 (ON C.A.) – application for judicial review dismissed

22. Canada (Minister of Justice) v. Hanson, 2005 BCCA 77 – application for judicial review dismissed

23. Canada (Minister of Justice) v. Kunze, 2005 BCCA 87 – application for judicial review dismissed

24. United States of America v. Lillemo, 2005 BCCA 198 – application for judicial review dismissed

25. United States of America v. Fordham, 2005 BCCA 197 – application for judicial review dismissed

26. The Minister of Justice v. Kavaratzis, 2006 CanLII 13237 (ON C.A.) – application for judicial review dismissed

27. United States of America v. Murshed, 2006 CanLII 10204 (ON C.A.) – application for judicial review dismissed

28. United States of America v. Budd, 2006 CanLII 20523 (ON C.A.) – application for judicial review dismissed

29. United States of America v. Hardin, 2006 CanLII 21757 (ON C.A.) – application for judicial review dismissed

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30. United States of America v. Tariq, 2006 CanLII 21039 (ON C.A.) – application for judicial review dismissed

31. United States of America v. Lake, 2006 CanLII 29924 (ON C.A.) – application for judicial review dismissed

32. Canada (Minister of Justice) v. Hajnis, 2006 CanLII (ON C.A.) – application for judicial review dismissed

33. United States of America v. Prudenza, 2006 CanLII 36484 (ON C.A.) – application for judicial review dismissed

34. The Hong Kong Special Administrative Region of the People’s Republic of China v. Chan, 2006 CanLII 38169 (ON C.A.) – application for judicial review dismissed

35. Thailand v. Saxena, 2006 BCCA 98 – application for judicial review dismissed

36. Hong Kong Special Administrative Region of the People’s Republic of China v. Dai, 2006 BCCA 179 – application for judicial review dismissed

37. Ganis v. Canada (Minister of Justice), 2006 BCCA 543 – application for judicial review dismissed

38. United States of America v. Thomlison, 2007 ONCA 42 – application for judicial review dismissed

39. United States of America v. Gorcyca, 2007 ONCA 76 – application for judicial review dismissed

40. United States of America v. Saad, 2007 ONCA 75 – application for judicial review dismissed

41. United States of America v. Anderson, 2007 ONCA 84 – application for judicial review dismissed

42. Canada (Attorney General) v. Siyam, 2007 ONCA 297 – application for judicial review dismissed

43. United States of America v. Magnifico, 2007 ONCA 535 – application for judicial review dismissed

44. Hungary v. Horvath, 2007 ONCA 734 – application for judicial review dismissed

45. Germany v. Schreiber, 2007 ONCA 354 – application for judicial review dismissed 42

46. Italy v. Caruna, 2007 ONCA 488 – application for judicial review dismissed

47. France v. Liang, 2007 ONCA 741 – application for judicial review dismissed

48. Schreiber v. Canada (Attorney General), 2007 ONCA 791 – application for judicial review dismissed

49. United States of America v. Pannell, 2007 ONCA 786 – application for judicial review dismissed

50. United States of America v. Catano, 2007 ONCA 838 – application for judicial review dismissed

51. U.S.A. v English, 2007 BCCA 169 – application for judicial review dismissed

52. Republic of India v. Singh, 2007 BCCA 157 – application for judicial review dismissed

53. United States of America v. Cheema, 2007 BCCA 341 – application for judicial review dismissed

54. Italy v. Seifert, 2007 BCCA 407 – application for judicial review dismissed

55. Scarpitti v. United States of America, 2007 BCCA 498 – application for judicial review dismissed

56. Karas v. Canada (Minister of Justice and Attorney General), 2007 BCCA 637 – application for judicial review allowed

57. Karas v. Canada (Minister of Justice and Attorney General), 2009 BCCA 1 – application for judicial review dismissed

58. United States of America v. Collins, 2008 ONCA 72 – application for judicial review dismissed

59. United States of America v. Kissel, 2008 ONCA 208 – application for judicial review allowed in part

60. Canada (Attorney General) v. Fischbacher, 2008 ONCA 571 – application for judicial review allowed

61. Canada (Attorney General) v. Schreiber, 2008 ONCA 575 – application for judicial review dismissed

43

62. United States of America v. Graziani, 2008 BCCA 79 – application for judicial review dismissed

63. Danielson v. United States of America, 2008 BCCA 519 – application for judicial review dismissed

64. United States of America v. Anekwu, 2008 BCCA 138 – submissions on the application for judicial review not given effect

65. United States of America v. Pal, 2008 BCCA 359 – submissions on the application for judicial review not given effect

66. Canada (Minister of Justice) v. Narayan, 2008 BCCA 280 – application for judicial review dismissed

67. China v. Wong, 2009 ONCA 148 – application for judicial review dismissed

68. France v. Ouzhgar, 2009 ONCA 69 – application for judicial review dismissed

69. United States of America v. Singh, 2009 ONCA 247 – application for judicial review dismissed

70. United States of America v. Park, 2009 ONCA 369 – application for judicial review dismissed

71. United States of America v. Hislop, 2009 BCCA 94 – application for judicial review dismissed

72. Hungary v. Dascalu, 2009 BCCA 132 – application for judicial review dismissed