File No. 32842

SUPREME COURT OF CANADA

(ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)

BETWEEN:

MINISTER OF JUSTICE OF CANADA

APPELLANT (Respondent)

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HENRY C. FISCHBACHER

RESPONDENT (Applicant)

APPELLANT’S FACTUM

DEPARTMENT OF JUSTICE CANADA JOHN H. SIMS, Q.C. 284 Wellington Street Deputy Attorney General of Canada Ottawa, Ontario 1161 - 234 Wellington Street K1A 0H8 Ottawa, Ontario K1A 0H8

Per: Janet Henchey and Per: Robert J. Frater Nancy Dennison 613 948-3003 – Tel. 613 957-4763 – Tel. 613 957-8412 – Fax 613 954-1920 – Fax [email protected] [email protected] [email protected] Solicitor for Counsel for the Counsel for the Appellant Appellant

Supreme Factum Inc. 2005 Limoges Street 613 737-0834 – Tel. Longueuil, Québec, J4G 1C4 450 442-2040 – Fax www.supremefactum.ca [email protected] S-3163-08

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GREGORY LAFONTAINE and EUGENE MEEHAN VINCENZO RONDINELLI LANG MICHENER LLP LAFONTAINE & ASSOCIATES Suite 300 127 John Street 50 O’Connor Street Toronto, Ontario Ottawa, Ontario M5V 2E2 K1P 6L2

416 204-1835 – Tel. 613 232-7171 – Tel. 416 204-1849 – Fax 613 231-3191 – Fax [email protected] [email protected]

Counsel for the Respondent Solicitor for Counsel for the Respondent

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TABLE OF CONTENTS

APPELLANT’S FACTUM Page

PART I – STATEMENT OF FACTS

A. Overview ...... 1

B. The Request ...... 2

C. The Minister’s Surrender Decision ...... 4

D. The Decision of the Court of Appeal for Ontario ...... 6

PART II – QUESTIONS IN ISSUE ...... 9

PART III – STATEMENT OF ARGUMENT ...... 10

A. Overview of Appellant’s Position ...... 10

B. The “Misalignment Test” is inconsistent with the Principle of Double Criminality under the Extradition Act ...... 11

1) The Principle of Double Criminality ...... 11

2) The Conduct Based Test for Double Criminality ...... 13

3) The “Misalignment” or “Substantially Exceeds” Test ...... 16

i) “Substantially Exceeds” test in British Columbia ...... 16

ii) The Emergence of the “Misalignment Test” in Ontario ...... 19

C. The “Misalignment Test” is inconsistent with the Role of the Minister under the Act ...... 21

D. The “Misalignment Test” interferes with the Principle of International Comity ...... 27

E. The “Misalignment Test” is inconsistent with International Practice ...... 30 - ii -

TABLE OF CONTENTS

APPELLANT’S FACTUM Page

F. The Surrender Order cannot be characterized as unreasonable ...... 36

G. Conclusion ...... 39

PART IV – COSTS ...... 40

PART V – ORDER SOUGHT ...... 40

PART VI – TABLE OF AUTHORITIES ...... 41

PART VII – STATUTES, REGULATIONS, RULES

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 7 ...... 47

Criminal Code, R.S.C. 1985, c. C- 46, ss. 229, 231, 235, 582 ...... 48

Extradition Act, R.S.C. 1999, c. 18, ss. 3, 15, 29, 40, 43, 44, 58 ...... 53

Extradition Act, S.C. 1877, c. 25, as amended by R.S.C. 1985, c. E-23 ...... 58

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Appellant’s Factum Statement of Facts

APPELLANT’S FACTUM

PART I – STATEMENT OF FACTS

A. OVERVIEW

1. The Respondent, Henry Fischbacher, was indicted by a grand jury in the State of Arizona for the offence of first degree murder. The extradition judge determined that the Respondent’s conduct would amount to second degree murder pursuant to Canadian law, thereby satisfying the principle of double criminality. Based on the finding of double criminality, the Minister of Justice ordered the Respondent’s surrender on the American offence of first degree murder, as requested by the United States. On judicial review, the Court of Appeal for Ontario incorrectly set aside the Minister’s surrender order as unreasonable. 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 and the Minister’s surrender order was therefore “misaligned” with the Canadian order of committal.

2. The Court of Appeal’s “misalignment test” is inconsistent with the conduct based approach to double criminality adopted by this Court in McVey (Re); McVey v. United States of America 1 which essentially permits extradition from Canada when the conduct underlying the foreign offence amounts to any Canadian offence, however named or characterized. Moreover, neither the Extradition Act (the Act), nor the applicable Treaty between Canada and the United States (the Treaty) provide for a “misalignment test” or contemplate a requirement to assess the foreign evidence against the elements of the foreign offence. The misalignment test requires the Minister of Justice to substitute himself for the foreign trial court, and to second-guess the foreign state’s assessment of its own law, a task for which he is ill-equipped and which is

1 McVey (Re); McVey v. United States of America, [1992] 3 S.C.R. 475. Appellant’s Book of Authorities (A.B.A.), Tab 19. - 2 -

Appellant’s Factum Statement of Facts

antithetical to the principles of comity and respect for other jurisdictions upon which the law of extradition is based.

3. The Minister’s decision, which is characterized as being at the “extreme legislative end of administrative decision making”, should be accorded great deference.2 In this case, the Minister’s decision to order the Respondent’s surrender without applying the “misalignment test” created by the Court of Appeal (and which is found nowhere in the Act or Treaty), cannot be characterized as “simply unacceptable”, “shocking to the Canadian conscience”3, or otherwise unreasonable. Indeed, his decision was eminently reasonable, based on the principle of double criminality as described by this Court in McVey and the principles of comity and respect for other jurisdictions. The Court of Appeal therefore erred in overturning the Minister’s decision on surrender.

B. THE REQUEST

4. At the request of the United States, on October 11, 2006, the Respondent was provisionally arrested pursuant to s. 12 of the Act, based on an outstanding criminal complaint in the state of Arizona, alleging that he had murdered his wife. On October 19, 2006, an Arizona grand jury issued a criminal indictment, charging the Respondent with one count of first degree murder contrary to Arizona state law.4 The United States subsequently made a formal diplomatic request for the extradition of the Respondent for the offence of first degree murder.5 On January 8, 2007, the Minister of Justice issued an Authority to Proceed (hereinafter “the ATP”) seeking the committal of the Respondent for the single Canadian offence: “Murder, contrary to section 231 of the Criminal Code”.6

2 Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761 at paragraphs 34-42, A.B.A. Tab 17. 3 Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 per McLachlin J. at page 849; United States of America v. Burns, [2001] 1 S.C.R. 283 at page 321, A.B.A. Tab 16. 4 Title 13, Arizona Revised Statutes, Sections 1105, 603, 604, 703, 710. 5 Diplomatic Note dated December 7, 2006, Appellant’s Record at page 38. 6 Authority to Proceed, Appellant’s Record at page 40. - 3 -

Appellant’s Factum Statement of Facts

5. The United States provided evidence of the extradition offence in the form of a certified record of the case and certified amended record of the case which were filed as exhibits at the extradition hearing. The certification indicates that the evidence summarized in the records of the case is available for trial and is sufficient under the laws of the State of Arizona, to justify the Respondent’s prosecution. The evidence alleges that, on October 6, 2006 at approximately 6:30 p.m., the Respondent contacted his sister by telephone and advised her that the previous day he and his wife Lisa Fischbacher had had an argument in their home. The Respondent is alleged to have told his sister that he:

š punched his wife in the face and then hit her in the back of the head with a flashlight knocking her unconscious;7

š dragged his unconscious wife from her bedroom, down a hallway, through a sliding glass door to the pool in the backyard; and

š held her head underwater for several minutes until he believed that she was dead.8

6. The Respondent is alleged to have fled his home at about midnight, driven to the airport in Phoenix, Arizona and flown to Buffalo, New York where he leased a car and fled to Canada.9

7. Mrs. Fischbacher’s body was found by law enforcement officials around five p.m. on October 6, 2006, floating face down in the backyard swimming pool. The autopsy confirmed that Mrs. Fischbacher died from asphyxia and multiple traumatic injuries to the head.10

8. At the extradition hearing, the Honourable J.S. O’Neill of the Superior Court of Justice (the extradition judge) held that the word “murder” in the ATP should be read as second degree

7 Certified Record of the Case, Appellant’s Record at page 46, paragraph 1; Certified Amended Record of the Case, Appellant’s Record at page 51, paragraph 1. 8 Ibid. 9 Certified Record of the Case, supra at page 46, paragraphs 1 and 5; Certified Amended Record of the Case, supra at page 51, paragraphs 1 and 5. 10 Ibid at paragraphs 2 and 4. - 4 -

Appellant’s Factum Statement of Facts

murder. In coming to this conclusion the extradition judge relied, in part, on s. 582 of the Criminal Code which provides that in Canadian domestic proceedings, “murder” means murder in the second degree, unless otherwise specified.11

9. On June 4, 2007, the extradition judge committed the Respondent for the Canadian offence of second degree murder.12 He concluded that there was insufficient evidence of planning and deliberation as required by Canadian law to support a committal for first degree murder.13 The Respondent did not appeal the committal decision.

C. THE MINISTER’S SURRENDER DECISION

10. The Respondent made submissions to the Minister pursuant to section 43 of the Extradition Act. He argued that his surrender should be limited to second degree murder in accordance with the determination made by the extradition judge in this case. He further argued that the offences of first degree murder and second degree murder in Canada and Arizona include nearly identical legal components and therefore, based on the findings of the extradition judge, it followed that the evidence was insufficient to justify a committal for trial in Arizona on first degree murder.

11. In support of this argument he provided the Minister with a legal opinion from a lawyer in Arizona indicating that the offence of first degree murder in Arizona required proof of “premeditation” similar to the requirement for proof of “planning and deliberation” for the offence of first degree murder under Canadian law.14 In his submissions to the Minister, the Respondent conceded that his surrender was appropriate, but submitted that given this legal opinion and the extradition judge’s decision to commit on the Canadian offence of second degree

11 Reasons for Judgment of O’Neill J., October 25, 2007, Appellant’s Record at page 13, paragraph 21. It should also be noted that Section 582 of the Criminal Code is not incorporated by reference into the Extradition Act. 12 Order of Committal of O’Neill J., June 4, 2007, Appellant’s Record at page 2. 13 Reasons for Judgment of O’Neill J., October 25, 2007, Appellant’s Record at page 18, paragraphs 35-36. 14 Legal Opinion provided by the Respondent in his submissions to the Minister, Summary of Case and Submissions, Appellant’s Record at pages 134-146. - 5 -

Appellant’s Factum Statement of Facts

murder, the surrender order should be restricted to the American offence of second degree murder.15

12. On March 17, 2008, after carefully considering the Respondent’s submissions, the Minister ordered the Respondent’s surrender for the American offence of first degree murder. The Minister explained:

The Extradition Act provides in section 3(1) that a person may be extradited from Canada, if the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada. That is known as the rule of double criminality. It ensures that no one will be extradited from Canada for conduct which would not be criminal had it occurred in Canada. The corresponding Canadian offence(s), need not be the same offence(s) as long as it arises from the same conduct (McVey (Re); McVey v. United States of America, [1992] 3 S.C.R. 475 (S.C.C.), A.B.A. Tab 19. See also United States of America v. Lepine, [1994] 1 S.C.R. 286, A.B.A. Tab 43; United States of America v. Smith (1982), 15 C.C.C. (3d) 16 (Ont. Co. Ct.), A.B.A. Tab 50; United States of America v. Manno (1996), 112 C.C.C. (3d) 544 (Que C.A.), leave to appeal to the SCC denied, A.B.A. Tab 44; United States of America v. Commisso (2000), 143 C.C.C. (3d) 158 (Ont. C.A.), A.B.A. Tab 34. Accordingly if the extradition judge is satisfied that the person sought has engaged in conduct that, if it had occurred in Canada, would be a crime in Canada, the requirement of double criminality has been met.

[. . .]

You have argued that a surrender order for first degree murder would “substantially exceed” the committal order and thereby violate the principle of double criminality. In support of that argument, you rely on the decision of the Court of Appeal for British Columbia in United States of America v. Reumayr (2003), 176 C.C.C. (3d) 377, and the decision of the Court of Appeal for Ontario in United States of America v. Gorcyca (2007), 216 C.C.C. (3d) 403. I note that neither of these cases dealt with the distinction between first and second degree murder.

You point out that the necessary elements of second degree murder under Arizona law are the same as those under Canadian law. In my view, the application of foreign law is best left to the requesting State. However, even if you are correct that the law on this point is identical as between Canada and the State of Arizona,

15 Respondent’s Submissions to the Minister, November 23, 2007, Summary of Case and Submissions, Appellant’s Record at page 111; Decision of the Minister ordering the Surrender of Mr. Fischbacher, March 17, 2008, Appellant’s Record at page 22. - 6 -

Appellant’s Factum Statement of Facts

for the reasons that follow, it has no bearing on the formulation of the surrender order.

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, A.B.A. Tab 22; R. v . Droste, [1984] 1 S.C.R. 208), A.B.A. Tab 6. 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.), A.B.A. Tab 31; United States v. Chong [1996] 91 O.A.C. 319 (C.A.) leave to appeal to the S.C.C. refused (1997), 99 O.A.C. 79 (note) (S.C.C.), A.B.A. Tab 33; United States v. Soffitt (1993), 36 B.C.A.C. 155, A.B.A. Tab 49; and United States v. Turner (2001), St. J. No. 3348 (S.C.)), A.B.A. Tab 52. (emphasis added) 16

D. THE DECISION OF THE COURT OF APPEAL FOR ONTARIO

13. The Respondent filed an application for judicial review of the Minister’s decision. This application was heard by the Court of Appeal on June 12, 2008. The Court of Appeal allowed the application for judicial review on August 1, 2008 and remitted the matter back to the Minister for further consideration in accordance with its reasons.17

14. In its decision, the Court of Appeal held that the Minister’s decision to surrender the Respondent for the American offence of first degree murder was unreasonable. 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.

15. 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

16 Decision of the Minister ordering the Surrender of Mr. Fischbacher, Appellant’s Record at pages 22-23. 17 Reasons for Judgment of the Court of Appeal for Ontario, August 1, 2008, Appellant’s Record at page 37. - 7 -

Appellant’s Factum Statement of Facts

committal was ordered with the foreign offences in the surrender order. In particular, the Court of Appeal relied on United States of America v. Gorcyca18 in which Goudge J.A. stated in obiter that there is little room for the misalignment argument when considering if the surrender order is unjust or oppressive except “where there is an absence of evidence on what would appear to be an essential element of the foreign charge in the surrender order”.19

16. In this case, the Court of Appeal held that there was an absence of evidence of premeditation given the findings of the extradition judge. 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.”20

17. The Court of Appeal also took issue with the Minister’s conclusion that, “under Canadian law, first and second degree murder are not different offences”, on the basis that there are significant differences in the essential elements and the potential sentences between first and second degree murder:

The mere fact that the Criminal Code is structured to make first and second degree murder branches of the single crime of murder does not mean that there are not substantive differences between the two levels of murder. There are important and significant differences in the essential elements of first and second degree murder and in the potential penalties applicable upon conviction: see Criminal Code ss. 229, 231, 235 and 745.

[…]

I am satisfied that whether first and second degree murder are characterized in Arizona as distinct and separate offences or as branches of the same crime, they are substantively different, just as they are in Canada. 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

18 United States of America v. Gorcyca 2007 ONCA 76, application to extend time for leave to appeal dismissed, SCC file no. 31903, May 15, 2007, A.B.A. Tab 39. 19 Ibid at paragraph 64. 20 Reasons for Judgment of the Court of Appeal for Ontario, Appellant’s Record at page 36, paragraph 38. - 8 -

Appellant’s Factum Statement of Facts

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.21

18. Counsel on behalf of the Minister of Justice sought leave to appeal the Court of Appeal’s decision. Leave to appeal to this Court was granted on December 19, 2008.

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21 Reasons for Judgment of the Court of Appeal for Ontario, Appellant’s Record at page 36, paragraph 37 and page 37, paragraph 41. - 9 -

Appellant’s Factum Questions in Issue

PART II – QUESTIONS IN ISSUE

19. The issues on this appeal may be stated as follows:

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 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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Appellant’s Factum Statement of Argument

PART III – STATEMENT OF ARGUMENT

A. OVERVIEW OF APPELLANT’S POSITION

20. For the following reasons, the Court of Appeal erred in requiring that a “misalignment test” be applied when determining if surrender is appropriate and further erred in concluding that the surrender order must be set aside as unreasonable as a result of the Minister’s failure to apply such a test:

š The “misalignment test” as framed is inconsistent with the conduct based test used to satisfy the principle of double criminality;

š There is no requirement in the Act or Treaty that the conduct upon which double criminality has been assessed be further scrutinized by the Minister against the elements of the foreign offences;

š The requirement that the offences align interferes with the independence of the foreign state to prosecute a person for an offence that occurred within its jurisdiction pursuant to its own law;

š The “misalignment test” is inconsistent with accepted international standards in extradition; and

š Based on the existing jurisprudence from this Court, and the fact that the Minister’s decision is to be accorded a high degree of deference, the order to surrender the Respondent cannot be characterized as unjust or oppressive.

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Appellant’s Factum Statement of Argument

B. THE “MISALIGNMENT TEST” IS INCONSISTENT WITH THE PRINCIPLE OF DOUBLE CRIMINALITY UNDER THE EXTRADITION ACT

1) The Principle of Double Criminality

21. The principle of double criminality is central to the Canadian system of extradition and is explicitly provided for in ss. 3 and 29 of the Act which require a judicial determination by a Superior Court judge (the extradition judge) as to whether the conduct supporting the foreign request would be criminal had it occurred in Canada. Similarly, a clause is found in all of Canada’s extradition treaties providing that neither party to the treaty is required to extradite in the absence of a finding of double criminality. Double criminality requires the conduct for which extradition is sought to be criminal in both the requesting state and the requested state. Simply put, Canada will not extradite a person to face criminal prosecution in another country for conduct that would not be criminal in Canada. The importance of this principle is identified in A.W. La Forest’s Extradition to and from Canada as follows:

As has been mentioned, it is not sufficient that the act or omission a fugitive is alleged to have committed is a crime in the demanding country; it must also be a crime in the country to which the request for his surrender is made. In Canada, this flows from the requirement in the Act and the treaties that an extradition judge may only commit the fugitive on such evidence as would justify his committal for trial if the crime had been committed here. This assures the liberty of the individual in Canada by making certain he can only be extradited for conduct considered wrongful here, and it makes for close reciprocity between the states, since it ensures that surrender will only be made for criminal acts for which Canada may itself seek extradition.22

[…]

The principle of double criminality, ensuring as it does that a person ought not to be sent abroad unless there is reasonable ground for believing that that person has

22 A.W. La Forest, La Forest’s Extradition To and From Canada, 3d. ed. Aurora: Canada Law Book 1991 at pages 68-69, A.B.A. Tab 67. - 12 -

Appellant’s Factum Statement of Argument

committed an act considered criminal in Canada, ought not to be departed from lightly.23

22. As pointed out by Ivan A. Shearer, in his book Extradition in International Law (1971), the double criminality rule has its roots in the doctrine of reciprocity:

The validity of the double criminality rule has never seriously been contested resting as it does in part on the basic principle of reciprocity, which underlies the whole structure of extradition, and in part on the maxim nulla peona sine lege. For the double criminality rule serves the most important function of ensuring that a person’s liberty is not restricted as a consequence of offences not recognized as criminal by the requested State. The social conscience of a State is also not embarrassed by an obligation to extradite a person who would not, according to its own standards, be guilty of acts deserving punishment. So far as the reciprocity principle is concerned, the rule ensures that a State is not required to extradite categories of offenders for which it, in return, would never have occasion to make demand. (emphasis added)24

23. The principle of double criminality can be satisfied either by an approach that requires a strict matching of the elements of the foreign offence to the elements of a corresponding domestic offence (the offence based test) or by ensuring that the criminal conduct alleged would be criminal had it occurred in the requested state (the conduct based test).25 Recently in Norris v. United States of America,26 the House of Lords considered these two approaches in interpreting extradition legislation in the United Kingdom:

[I]t is useful to stand back from the detail and recognise the essential choice that the legislature makes in deciding just what the double criminality principle requires. It is possible to define the crimes for which extradition is to be sought and ordered (extradition crimes) in terms either of conduct or of the elements of the foreign offence. That is the fundamental choice … For convenience these may be called respectively the offence test and the conduct test. It need hardly be pointed out that if the offence test is adopted the requested state will invariably have to examine the legal ingredients of the foreign offence to ensure that there is

23 Ibid at page 72. See also Canada v. Schmidt, [1987] 1 S.C.R. 500 per La Forest J. at page 515, A.B.A. Tab 3. 24 I. A. Shearer, Extradition in International Law, New York: Oceana Publications Inc. 1971 at pages 137-138, A.B.A. Tab 68. 25 Washington v. Johnson, [1988] 1 S.C.R. 327 per Wilson J. at page 339, A.B.A. Tab 53. 26 [2008] UKHL 16, A.B.A. Tab 21. - 13 -

Appellant’s Factum Statement of Argument

no mismatch between it and the supposedly corresponding domestic offence. (emphasis added)27

24. Canada has adopted a conduct based test for determining double criminality. When applying the conduct based test to satisfy the principle of double criminality, it is irrelevant whether the conduct in question would support the same charge in Canada as in the foreign state. Rather, as articulated by this Court in McVey v. U.S.A.28, what is required is that the conduct constitute an offence according to Canadian law which is an offence recognized in the applicable treaty as an extradition crime.

2) The Conduct Based Test for Double Criminality

25. This Court applied the conduct based test for double criminality in McVey v. U.S.A.29 McVey involved a request for extradition from the United States for an individual who was charged with, among other offences, conspiracy to knowingly export high technology electronic components to the USSR. There was no matching offence in Canada and the offences had elements beyond the equivalent Canadian offences of fraud and forgery. McVey was nevertheless committed for extradition. In determining that the principle of double criminality had been respected, La Forest J. explained that the issue from the Canadian perspective is:

[W]hether the underlying facts of the charge would, prima facie, have constituted a crime listed in the treaty if they had occurred in Canada. That is what is meant by saying that double criminality is conduct based. The courts of both countries deal with the offence under their own law, the law in which they are versed, but each must ascertain whether under that law the facts support the charge. (emphasis added)30

26. The treaty in force at the time of McVey was a list treaty which, rather than defining an extraditable offence as an offence punishable by two years or more, listed categories of extraditable conduct. La Forest J., on behalf of the majority, held that the role of the extradition

27 Ibid, at paragraph 65. 28 McVey, supra per La Forest J. at pages 548-550, A.B.A. Tab 19. 29 Ibid. 30 Ibid at pages 527-528. - 14 -

Appellant’s Factum Statement of Argument

judge did not extend to determining whether the act charged in the requesting state was a crime under the foreign law:

[T]he evidence of American law in this case was not only irrelevant; it was also misplaced. The issue is not whether the crime charged is called forgery or not in either country, but whether the conduct charged can fairly be said to fall within the expressions "forgery" and "conspiracy" in the treaty. The crimes in the treaty are not to be interpreted according to the niceties of the applicable legislation in either country. Rather they are described in a comprehensive and generic sense: it is the essence of the offence that is important. (emphasis added)31

27. The use of the conduct based test to satisfy the principle of double criminality has been repeatedly endorsed by this Court32 and applied by courts across Canada.33 All of these cases reaffirm that the principle of double criminality does not require the Canadian offence for which committal was ordered to match the foreign offence for which surrender is ordered. All that must be shown is that the conduct for which extradition is requested would amount to any Canadian offence had it occurred in Canada.

28. As noted by the Court of Appeal for Ontario in United States of America v. Commisso, the principle of double criminality does not require the elements of the foreign offence(s) for which extradition is sought to match the elements of the Canadian offence(s) established by the conduct:

31 McVey, supra per La Forest J. at pages 551-552, A.B.A. Tab 19. 32 United States of America v. Lepine, [1994] 1 S.C.R. 286 at pages 296-298, A.B.A. Tab 43; United States of America v. Dynar, [1997] 2 S.C.R. 462 per Cory J. and Iacobucci J. at page 481 A.B.A. Tab 37; United States of America v. Kwok, [2001] 1 S.C.R. 532 at page 551, A.B.A. Tab 42; United States of America v. Ferras, [2006] 2 S.C.R. 77 at pages 84-85, A.B.A. Tab 38; Washington, v. Johnson, supra per Wilson J. at pages 339-341, A.B.A. Tab 53. 33 United States of America v. Manno (1996), 112 C.C.C. (3d) (Que C.A.) 544 at pages 560-557; leave to appeal dismissed S.C.C. file no. 25745, June 19, 1997, A.B.A. Tab 44; United States of America v. Commisso, [2000] O.J. No. 468 (Ont. C.A.), 47 O.R. (3d) 257 (Ont. C.A.) at paragraphs 32-35, A.B.A. Tab 34; Stewart v. United States of America, [1998] B.C.J. No. 3010 (B.C.C.A.), 131 C.C.C. (3d) 423 (B.C.C.A.) at paragraphs 9-10, A.B.A. Tab 28; United States of America v. Bounnam, [1995] O.J. No. 877 (Gen. Div.) at paragraphs 7-10, A.B.A. Tab 31; United States of America v. Chong, [1996] O.J. No 2220 (Ont. C.A.), 91 O.A.C. 319 at paragraphs 1-4, leave to appeal refused (1997), 99 O.A.C. 79 (note), A.B.A. Tab 33; United States of America v. Soffitt, [1993] B.C.J. No. 2145 (B.C.C.A.), 36 B.C.A.C. 155 at paragraphs 2 and 9-14, A.B.A. Tab 49; United States of America v. Turenne 2004 MBCA 120 at paragraphs 21-23, A.B.A. Tab 51; Karas v. Canada (Minister of Justice) 2009 BCCA 1 at paragraphs 26-29, A.B.A. Tab 14. - 15 -

Appellant’s Factum Statement of Argument

It is not necessary that the Canadian offence established by the conduct be described by the same name or that it have the same legal elements as the offence charged in the requesting state. The protection afforded by the double criminality rule is ensured if the conduct that underlies the foreign charge constitutes any extradition crime under the laws of Canada. See United States of America v. Smith (1984), 15 C.C.C. (3d) 16 (Ont. Co. Ct.), McVey, Manno, Tavormina and Stewart v. Canada (Minister of Justice) (1998), 131 C.C.C. (3d) 423 (B.C.C.A.). In most cases, particularly when extradition is sought by the United States, where the system of criminal law is similar to our own, there will be a similarity between the offence charged and the Canadian offence against which the assessment is made. However, an equivalency between the two is not a requirement. (emphasis added)34

29. The desire to establish an equivalency between offences, as identified by the Court of Appeal for Ontario, in Commisso, may be tempting when dealing with offences that are similar in Canada and the foreign state. However tempting, an equivalency between offences is not required pursuant to the conduct based test. This is demonstrated in United States of America v. Smith35 (referred to with approval by the majority of this Court in McVey36). Ms. Smith’s extradition was requested by the United States for murder in California. The extradition judge determined that the equivalent Canadian offence would be manslaughter and that this justified committing Ms. Smith for the American offence of murder as was the role of the committal judge under the previous legislation.37 In reaching this conclusion the extradition judge, Borins J, held that the fact that the underlying conduct gave rise to two different offences in the two jurisdictions was of no significance. Borins J. stressed that it was not the matching of the charges that mattered but the fact that the underlying conduct was criminal in both jurisdictions.38

34 Commisso, supra at paragraph 44, A.B.A. Tab 34. See also La Forest’s Extradition to and from Canada, supra at pages 52-55, A.B.A. Tab 67. 35 United States of America v. Smith, [1984] O.J. No. 3466 (Ont. Co. Ct.), 15 C.C.C. (3d) 16 at paragraphs 48-52, aff’d (1984), 16 C.C.C. (3d) 10 (Ont. H.C.), A.B.A. Tab 50. 36 McVey, supra at pages 512-513, A.B.A. Tab 19. 37 Prior to 1999, extradition in Canada was governed by the Extradition Act, 1877, as amended. 38 Smith, supra at paragraphs 48-52, A.B.A. Tab 50. See also Chong, supra at paragraphs 1-4, A.B.A. Tab 33; Soffitt, supra at paragraphs 2 and 9-14, A.B.A. Tab 49; Turenne, supra at paragraphs 21-23, A.B.A. Tab 51; Karas, 2009, supra at paragraphs 26-29, A.B.A. Tab 14. - 16 -

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3) The “Misalignment” or “Substantially Exceeds” Test

30. The present case is the most recent of several appellate decisions that have imposed a “substantially exceeds” or “misalignment” test on the Minister when framing the surrender order. The Court of Appeal in the present case was at pains to distance this test from the principle of double criminality stating:

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.39

31. The Court went on to find that the Minister was required to satisfy himself that the conduct upon which the extradition judge had found double criminality also established all the elements of the foreign offence. It is difficult to see how such an approach, however characterized, does not effectively impose an additional step to the double criminality test. Indeed, in addition to the conduct based test described above, the Court of Appeal has imposed a requirement that the Minister satisfy himself that the foreign evidence satisfies the foreign charge. This looks very much like the offence based test described by the U.K. House of Lords in Norris and flies in the face of this Court’s decision in McVey which limited the role of the extradition judge (who at the time also determined the foreign offences for which extradition would be ordered)40 to a determination of whether the evidence made out criminal offences pursuant to Canadian law.

i) “Substantially Exceeds” test in British Columbia

32. The “misalignment test” can be traced back to a series of cases decided since the advent of the current extradition legislation. In Canada (Minister of Justice) v. Reumayr (2003)41

39 Reasons for Judgment of the Court of Appeal for Ontario, Appellant’s Record at page 31, paragraph 16. 40 As described in paragraph 48, infra, under the previous legislation, once the extradition judge had made a finding of double criminality, he signed a warrant of committal, ordering the person sought committed on the foreign offences for which his or her extradition had been sought. 41 United States of America v. Reumayr 2003 BCCA 375, A.B.A. Tab 45. - 17 -

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Mr. Reumayr was wanted for offences relating to a plot to bomb the trans-Alaska pipeline. The extradition judge found that the conduct alleged by the requesting state justified committal for the equivalent Canadian offence of possession of an explosive substance and possession of materials with intent to cause an explosion. The extradition judge did not commit Mr. Reumayr for the Canadian offence of attempted arson because in his opinion Mr. Reumayr did not go beyond “mere preparation” as required by the Canadian law of attempt.

33. The Minister ordered Mr. Reumayr’s surrender for the American offence of “attempting to bomb the Trans Alaska pipeline”. On judicial review from this decision, the British Columbia Court of Appeal held that the “statutory scheme does not authorize extradition for offences that “substantially exceed” offences that are supported in the committal hearing.”42 The Court remitted the matter to the Minister to consider whether surrender on the American attempt offence was consistent with the extradition judge’s determination that attempt was not made out in Canadian law.

34. On reconsideration, the Minister stated that he had been advised by American officials that the same evidence which supported the Canadian possession offence for which committal had been ordered also supported the American attempt charge for which Mr. Reumayr’s extradition had been requested. It was a matter for the jury in the United States to determine as a question of fact whether the actus reus of an attempt had been established.43

35. In upholding the surrender order on judicial review, the British Columbia Court of Appeal, in a decision hereinafter referred to as Reumayr (2005), did not apply the “substantially exceeds” test but rather applied the conduct based double criminality test established in McVey. Ryan J.A. writing for the majority stated that “as long as the conduct supports a Canadian

42 Ibid, at paragraph 42. 43 United States of America v. Reumayr 2005 BCCA 391 at paragraph 145, A.B.A. Tab 46. - 18 -

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offence, it does not matter what the offence might be or how the constituent elements are described in Canada. The person is liable to extradition.”44

36. In Karas v. Canada (Minister of Justice) (2007),45 the British Columbia Court of Appeal relied on Reumayr (2003) and determined that surrendering Mr. Karas for conduct that would result in his prosecution for murder “substantially exceeded” the offence of manslaughter for which he was committed, disregarding the conduct based test that had been applied by that court in Reumayr (2005). In Karas, Rowles J.A. speaking for the court, found that, insofar as the Minister’s surrender order empowered the requesting state to prosecute Mr. Karas for murder despite the finding of the extradition judge that there was no evidence of intent under Canadian law, the Minister had exceeded his jurisdiction. As in the present case, the court made the mistake of considering the foreign law and concluded that the foreign offence was not established on the evidence.

37. Leave to appeal was sought to this Court from the decision of the Court of Appeal in Karas (2007). This Court remitted the matter back to the British Columbia Court of Appeal to reconsider the decision in light of its recent decision in Lake which clarified the standard of review of ministerial decisions in extradition as one of “reasonableness”.46

38. In its reasons on reconsideration released on January 8, 2009,47 the British Columbia Court of Appeal upheld the surrender order, finding that it was reasonable to surrender Mr. Karas to face a charge of murder in Thailand based on his committal on the Canadian offence of manslaughter. Insofar as the surrender order specified that Karas was being surrendered with reference to the conduct found to be criminal in Canada, it was irrelevant that the conduct was called manslaughter in Canada and murder in Thailand. Accordingly, his extradition would be

44 Ibid, at paragraph 150. 45 2007 BCCA 637 at paragraphs 86-127, A.B.A. Tab 13. 46 Supreme Court of Canada, decision on leave to appeal, No. 32500, June 12, 2008. 47 Karas v. Canada (Minister of Justice) 2009 BCCA 1 at paragraphs 26-29, A.B.A. Tab 14. - 19 -

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consistent with the principle of double criminality as articulated in McVey and confirmed in Ferras.48

ii) The Emergence of the “Misalignment Test” in Ontario

39. The “misalignment” argument, so framed, first arose in the Court of Appeal for Ontario in United States of America v. Gorcyca.49 Mr. Gorcyca argued that based on the principle of double criminality the conduct alleged against him must align with the offences named in the committal order and the foreign offences. Goudge J.A. speaking for the Court rejected this argument finding that neither the Act, nor the Treaty, nor the principle of double criminality required that the offences listed in the committal order and the foreign offences in the surrender order precisely align. He concluded that the Minister was entitled to order surrender on the foreign offence if the conduct was sufficient to justify committal for a Canadian offence that corresponded to the conduct, again applying the McVey approach.

40. Goudge J.A. then considered whether this “misalignment” argument could be recast separately from the principle of double criminality on the basis that a “misaligned” surrender order would be unreasonable pursuant to s. 44(1) of the Act which requires the Minister to be satisfied that surrender would not be unjust or oppressive. He concluded that even recast, the “misalignment test” would not prevent Mr. Gorcyca’s surrender for the following reasons:

Where the Minister chooses to do this [surrender on the foreign charges], the complaint that the evidence in the foreign record does not sufficiently support the foreign charges can have only very limited reach, in my view. The Minister is not charged with evaluating that evidence against the counterpart Canadian charges in the Authority to Proceed. Nor is there a requirement that the Canadian charges exactly match the foreign charges, as I have attempted to explain. Moreover, the Act requires that the foreign state certify that the evidence is sufficient to justify

48 Mr. Karas is seeking leave to appeal the decision of the British Columbia Court of Appeal on reconsideration, to this Court (Application for leave to appeal, Supreme Court of Canada, file no. 32500, February 5, 2009). 49 Gorcyca, supra at note 18, A.B.A. Tab 39. - 20 -

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prosecution on the foreign charges and the principle of international comity requires that this be respected. (emphasis added)50

41. In this context it is difficult to know what Goudge J.A. meant when he made the following statement in obiter:

This leaves little scope for the recast misalignment argument. In my view, only where there is an absence of evidence on what would appear to be an essential element of the foreign charge in the surrender order could it be argued that the order is plainly unreasonable or unjust or oppressive, at least without an explanation of why it is not. In such circumstances it could well be plainly unreasonable to deport someone where, from Canada’s perspective, there would seem to be no possibility of a just conviction. (emphasis added)51

42. In United States of America v. Kissel,52 the Court of Appeal for Ontario accepted that the test for surrender is conduct based but also adopted the obiter comments in Gorcyca stating “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.”53 The Court of Appeal held that it was unreasonable to surrender Mr. Kissel for the American offence of conspiracy to launder money having concluded that the evidence did not make out the elements of the American offence of conspiracy.

43. The Court of Appeal in the present case relied on Reumayr (2003), Kissel and the obiter comments in Gorcyca and held that the Minister’s decision to surrender the Respondent for the offence of first degree murder was unreasonable. The Court found a “misalignment” between the Canadian and foreign offences, as it appeared from the committal order that there was “an absence of evidence on what would appear to be an essential element of the foreign charge in the surrender order.”

50 Ibid at paragraph 63. See also United States of America v. Saad 2007 ONCA 75 at paragraphs 16- 22, A.B.A. Tab 47. 51 Gorcyca, supra at paragraph 64, A.B.A. Tab 39. 52 United States of America v. Kissel (2008), 89 O.R. (3d) 481 (C.A.),A.B.A. Tab 41. See also France v. Ouzghar 2009 ONCA 69 at paragraphs 19-26, A.B.A. Tab 8. 53 Ibid at paragraph 39. - 21 -

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44. This approach which appears to have sprung from a comment made in obiter in Gorcyca, is inconsistent with the breadth of the Minister’s discretion recognized in Lake and the conduct based approach to double criminality as codified in s. 3 of the Act which states that extradition will be granted based on conduct irrespective of how the offence is named or classified.

C. THE “MISALIGNMENT TEST” IS INCONSISTENT WITH THE ROLE OF THE MINISTER UNDER THE ACT

45. Extradition in Canada is governed by the Extradition Act which came into force in 1999 and represents a significant modernization of Canada’s extradition laws. One of the important features of the new legislation is the introduction of a clear code of procedure for domestic extradition proceedings. As stated by Eleni Bakopanos, Parliamentary Secretary to the Minister of Justice when addressing the House of Commons:

This brings me to the second important feature of the reform. The extradition law as it currently stands does not provide for a code of procedure. If one were to consult the Extradition Act or the Fugitive Offenders Act, one would be hard pressed to understand how proceedings commence, whether the fugitive is entitled to bail, how someone is to be arrested, how one can waive proceedings, whether temporary surrender is possible, et cetera. In other words, there is a clear need to spell out the procedure.

It is important at a time when transborder crime is becoming more prevalent to have an extradition process which is effective on a practical level.

At the same time, it is equally important that the process be a clear one and that the written statute detail the nature of that process and the protections accorded to those who are the subject of extradition proceedings. We simply cannot afford to be in the position where we will be criticized by Canadians for having let the country become a haven for criminals by not evolving with our times. Yet we must also produce a reform which addresses the basic procedural requirements needed for a fair extradition process in Canada.

[…]

The current two-track system will be maintained. The judicial track will continue to ensure that the underlying conduct would be criminal in Canada and there is a case against the person. - 22 -

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The Minister of Justice, on the other hand, will have the responsibility for assessing the foreign legal system to ensure that human rights are respected and a fair trial will be provided in the requesting state.54 (emphasis added)

46. Insofar as the Act is intended to codify extradition procedure, it is noteworthy that neither the comments made to the House of Commons by Ms. Bakopanos, nor the Act itself create or describe a “misalignment test”. The Minister’s responsibilities under the Act may be summarized as follows:

š When a request for extradition is received, the Minister of Justice determines if the request relates to “extraditable conduct” which is defined in s. 3 of the Act as conduct that is punishable in the requesting state by at least two years, subject to an extradition agreement (s. 3(1)(a)) and which would have constituted an offence in Canada (s. 3(1)(b)).

š Once the Minister is satisfied that the offence(s) for which extradition is sought are “extraditable” the Minister may issue an Authority to Proceed (“ATP”) pursuant to s. 15 of the Act, listing the Canadian offence(s) that would arise from the conduct contained in the extradition request.

š If the extradition judge determines pursuant to s. 29 of the Act that the conduct would justify committal for trial in Canada on the offence(s) set out in the ATP, double criminality has been established and the matter is referred back to the Minister.

š The Minister has the authority to order a person sought surrendered to the requesting state if satisfied that surrender is otherwise appropriate pursuant to s. 40 of the Act.

54 House of Commons Debates, 1st Session, 36th Parliament, v. 135, Bill C-40, second reading, pages 9005-9006, A.B.A. Tab 56. - 23 -

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š Section 58(b) of the Act permits the Minister to describe the conduct in the surrender order by either listing the foreign offences for which extradition is requested, or the Canadian offences for which committal was ordered, or describing the conduct which was found to meet the test of double criminality.

47. There is nothing in the mandatory or discretionary grounds of refusal set out in the Act that require the Minister, in executing his responsibilities under the Act, to examine the foreign law to satisfy himself that the elements of the foreign offence have been established by the conduct on which double criminality has been assessed.

48. Prior to 1999, extradition in Canada was governed by the Extradition Act, 1877, as amended55 (the old Act). Under the old Act the essential structure of extradition was the same. Double criminality was assessed by a superior court in a judicial phase, followed by a Ministerial phase dealing with the broader political implications of surrendering the person sought to the requesting state. The concept of an Authority to Proceed did not exist under the old Act. The fugitive was brought before a judge who made an assessment of double criminality. Once the extradition judge concluded that there was double criminality, he or she signed a warrant of committal for extradition listing the foreign offences for which extradition had been sought.56 The Minister was required to make a decision on surrender based on the enumerated grounds of refusal in the Act, but if surrender was ordered, the order reflected the foreign offences as listed on the warrant of committal.57 Neither the Minister nor the extradition judge was tasked with considering whether the evidence supported all the elements of the foreign offence.

49. The introduction of the new Act has not altered the role of the Minister. The Minister’s role continues to be political as he must weigh the representations of the person sought against Canada’s international treaty obligations. As such, the Minister’s decisions under the Act are at

55 Extradition Act, S.C. 1877, c. 25, as amended by R.S.C. 1985, c. E-21, infra at pages 57 and ff. See also McVey, supra per La Forest J. at pages 508-510, A.B.A. Tab 19. 56 Ibid, Schedule II, Form Two. 57 Ibid, Schedule II, Form Three. - 24 -

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the extreme legislative end of the continuum of decision making.58 The Minister has to be satisfied that the request is within the terms of the Treaty. This may require the Minister to review legal statutes that set out the statute of limitations for an offence or the statutory provision of the foreign offence so that the Minister can be satisfied that the request for extradition is in relation to a criminal offence. As noted by this Court in McVey:

To monitor the obligation as it applies to the foreign law, a different procedure is adopted. The evidence that the offence is a crime in the foreign country is determined by the executive of the requested state in considering the validity of the requisition. Article 9 of the treaty enables it to do so. That provision requires that the request for surrender be accompanied by, among other things, a statement of the facts of the case and "the text of the laws of the requesting State describing the offense and prescribing the punishment for the offense" (Art. 9(2)). As well, in the case of an accused fugitive (the situation here), the requesting state must provide "a warrant of arrest issued by a judge or other judicial officer of the requesting State" (Art. 9(3)), and in case of a convicted fugitive, "the judgment of conviction and sentence."59 (emphasis added)

50. There is no support in the Act to extend the Minister’s responsibilities to require him to be satisfied that the elements of the foreign charge are established by the evidence which the foreign state has certified to be sufficient for trial, nor is there any need for such an assessment to be made. Pursuant to s. 3 of the Act, extradition proceedings cannot be commenced unless criminal charges are pending in the requesting state or the person sought has already been convicted of a criminal offence. Moreover, the requesting state is required to certify that the evidence provided in support of extradition is sufficient for trial in its jurisdiction. These two requirements are sufficient to establish the existence of a bona fide prosecution in the requesting state. As explained by the British Columbia Court of Appeal in Thailand v. Saxena:

[75] It is one thing to monitor compliance with a treaty to be certain an international obligation is engaged; it is quite another to actually consider and make decisions about the applicability of the foreign legislation as construed under foreign law, and then to refuse to surrender a fugitive on the basis that the requesting state is wrong about the applicability of its own law. That would

58 Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, per Corty J. at page 659, A.B.A. Tab 10. 59 McVey, supra per La Forest J. at page 522, A.B.A. Tab 19. - 25 -

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appear to me to be completely at odds with the respect two nations must mutually afford in order to enter into an international treaty at all.

[76] The monitoring of compliance with the Treaty by the executive does not extend to requiring the Minister to consider Thai law with a view to determining whether in fact Mr. Saxena can be prosecuted under the SEA. That will ultimately be a matter for the judge before whom he will be tried in Thailand. The provision of a legal opinion on Thai law did not alter the requirement of the executive to monitor compliance with the Treaty so as to put the Minister in the position of having to consider Thai law and determine whether Mr. Saxena could still be prosecuted under the law of that country. It is enough that Thailand says he can be prosecuted. The Minister made no error in declining to consider Thai law. (emphasis added)60

51. Not only is it inappropriate for the Minister to assess foreign evidence against foreign law, he is ill-equipped to do so. He is both untrained and unfamiliar with foreign law. Indeed, had it been the intention of Parliament to have the evidence provided by the requesting state assessed against the foreign law, it would no doubt have allocated that task to the extradition judge, however, it chose not do so. This point was addressed as follows by Lowry J.A. in Saxena:

Indeed if a consideration of foreign law and determination of what it provides are required as part of the extradition process, it is difficult to see why that should be left to the executive when it is the courts that regularly grapple with issues of that kind and are best able to do so. In the absence of procedures employed by the courts to resolve conflicting opinions about foreign law, I do not see how the Minister could be expected to properly resolve a contested question about the law of a requesting state.61

52. The difficulties associated with assigning an assessment of foreign law to the Minister are aptly demonstrated by the facts of the present case. The Respondent has been indicted by a grand jury on an offence of first degree murder. The requesting state has certified that the evidence in the records of the case is sufficient to justify prosecution in the State of Arizona. In contrast, the Respondent provided the Minister with the opinion of a lawyer from Arizona that the evidence is

60 Thailand v. Saxena 2006 BCCA 98 at paragraphs 75 and 76. See also Rizzuto v. Canada (Attorney General), 2005 QCCA 1152 at paragraphs 66-80. 61 Ibid at paragraph 71. - 26 -

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insufficient to prosecute him for first degree murder. This opinion was of no assistance to the Minister. Indeed, the Minister has no means by which to assess credibility or choose between competing views on foreign law. He was therefore required to accept that the grand jury indictment establishes the sufficiency of the evidence pursuant to American law. The trial court in the requesting state is in the best position to resolve outstanding legal issues, not the Minister.

53. While neither the Minister, nor the extradition judge should consider or apply foreign law, there is a basic requirement that the surrender order be connected in some way to the decision on committal. This issue was addressed by the Court of Appeal in Commisso as follows, “[p]ut another way, the double criminality rule does not permit an extradition judge to base the committal decision on evidence of conduct that “has nothing to do” with the conduct charged in the foreign jurisdiction.”62

54. It follows that insofar as there is any scope for a “misalignment test”, it can only have a very limited reach. If the Minister makes unreasonable factual conclusions about the connection between the evidence upon which the committal order was based and the conduct underlying the foreign indictment, the reviewing court may be entitled to set aside the surrender order. For example, if the requesting state sought a person’s surrender for two distinct offences arising from two distinct sets of conduct and the extradition judge only found double criminality with respect to one set of conduct, it would be unreasonable for the Minister to surrender for both. In that sense the surrender order must reflect the committal order. In other words, if the conduct assessed by the extradition judge “has nothing to do” with the foreign offence for which extradition is requested, then the surrender would be unreasonable.63 That is not the case here as the killing of Mrs. Fischbacher is the conduct supporting both the Canadian offence of second degree murder and the American offence of first degree murder.

55. If the “misalignment test” were adopted, causing our courts to attempt to apply foreign law, the result would be that our extradition law would be most narrowly and rigorously applied

62 Commisso, supra at paragraph 33, A.B.A. Tab 34. See also, Saad, supra at paragraph 21, A.B.A. Tab 47. 63 Commisso, supra at paragraph 35, A.B.A. Tab 34. - 27 -

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to our most trusted partners, further demonstrating why the Court of Appeal’s decision is flawed. The courts will more likely assume, as the Court of Appeal did in the within case, that they understand the laws of the U.K. and the United States and can therefore “apply” American or British law to the facts of a case. This fails to recognize that other legal systems, although similar to our own, may differ from our own in significant ways. Had this been a request from a country with a different legal tradition which did not operate in either of Canada’s official languages, the folly of attempting to apply foreign law would have been more readily apparent. Such an approach is neither sensible, nor consistent with the principles of comity and trust underlying extradition.

D. THE “MISALIGNMENT TEST” INTERFERES WITH THE PRINCIPLE OF INTERNATIONAL COMITY

56. The requirement by the Court of Appeal that the Minister be satisfied that there is sufficient evidence on each element of the foreign offence pursuant to foreign law is inconsistent with the fundamental principle upon which extradition operates, that we trust the courts in the foreign state to give a fugitive a fair trial pursuant to its laws, as noted by this Court on numerous occasions:

The present system of extradition works because courts give the treaties a fair and liberal interpretation…trusting the courts in the foreign country to give the fugitive a fair trial, including consideration of available defences and the dictates of due process generally.64

The assumption that the requesting state will give the fugitive a fair trial according to its laws underlies the whole theory and practice of extradition.65

We sign treaties only with states which can assure us that their systems of criminal justice are fair and offer sufficient procedural protections to accused persons.66

64 Schmidt, supra per La Forest J. at page 524, A.B.A. Tab 3; adopted in United States of America v. Cotroni, [1989] 1 S.C.R. 1469 per La Forest J. at page 1495, A.B.A. Tab 35; See also Vienna Convention on the Law of Treaties, Article 31, 1969 (Ratified 01/27/80), A.B.A. Tab 66. 65 Argentina [Republic of] v. Mellino, [1987] 1 S.C.R. 536 per La Forest J. at page 554, A.B.A. Tab 2. 66 Kindler, supra per McLachlin J. at page 845, A.B.A. Tab 16. - 28 -

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57. The requirement that the Minister consider whether the elements of the foreign offence have been established in the request for extradition is inconsistent with the underlying purpose of extradition. Extradition is meant to be an expeditious process to determine if there is sufficient evidence to warrant surrendering a person to face trial for conduct that occurred in the requesting state. It is not a trial in Canada. For this reason the requesting state is not required to submit its case for prosecution in its entirety in support of its request for extradition. Rather, in order to satisfy the principle of double criminality, it is only required to provide sufficient evidence to establish a prima facie case that the conduct in question would be criminal had it occurred in Canada.67

58. In effect by imposing a “misalignment test”, the Court of Appeal is asking the Minister to try the foreign case based on the evidence provided in support of extradition, superseding the role of the foreign trial court. Assigning the Minister this task is completely contrary to the principle of comity and reciprocity as it requires him to second guess the requesting state with respect to the application of its own law. In entering into treaties with foreign countries, we do so on the basis that we are satisfied that they have a system of law with sufficient safeguards to ensure a fair trial for persons sought for extradition. By questioning our extradition partner’s assertion that its law allows them to charge particular offences, we are failing to respect the basis for the extradition relationship. The purpose of extradition is to surrender persons to extradition partners so that they may be tried for their criminal conduct. While the principle of double criminality ensures that no one is surrendered from Canada to face prosecution for something that is not considered criminal in Canada, it does not require Canada to conduct trials on behalf of the foreign state. By imposing such a requirement, the Court of Appeal is engaging in an impermissible intrusion on foreign sovereignty.

59. In R v. Parisien, this Court recognized that “the freedom and independence of states is central to the international legal order and such restrictions are not to be presumed”.68 This

67 Germany (Federal Republic) v. Krapohl, [1998] O.J. No. 2326 (Ont. C.A.), 110 O.A.C. 129 at paragraphs 14-18, A.B.A. Tab 9. 68 R v. Parisien, [1988] 1 S.C.R. 950 per La Forest J. at page 959, A.B.A. Tab 23. - 29 -

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principle militates against any requirement to assess the sufficiency of the foreign evidence to establish the foreign offence. As noted by this Court in McVey, “the issue of whether the act charged was a crime under United States law was for the prosecutors in the United States to decide, and it was for them and the U.S. State Department to assess whether in their view it came within the Treaty, subject to monitoring by Canada pursuant to the treaty”.69 Moreover, in McVey this Court stated that it is not unreasonable for the Minister to rely on the material supplied with the extradition request as proof of foreign law.70 Upon surrender, it properly falls to the trial court in the requesting state to determine whether the evidence justifies a conviction on the charges pending in that country.

60. The implications of dictating to a treaty partner which charges they can prosecute in their own country are demonstrated by the facts in the decisions of the British Columbia Court of Appeal in Karas (2007) and Karas (2009). Mr. Karas, a Canadian citizen, was wanted for prosecution in relation to the murder and dismemberment of his Thai girlfriend. The offence took place entirely in Thailand and accordingly Canada had no jurisdiction to prosecute. The extradition judge committed Mr. Karas for manslaughter, rather than murder, on the basis that there was insufficient evidence of intent pursuant to Canadian law. Based on the “misalignment test”, as applied in the case under appeal, Mr. Karas could not be surrendered on the offence of murder as the surrender order would be “misaligned” with the committal order. Thailand, however, indicated that pursuant to its law, only the trial judge could amend the charge against Mr. Karas once he had been surrendered, and accordingly Thailand would be unable to accept Mr. Karas into their country if he were surrendered on a charge other than that for which his extradition was requested. The result would be that a person wanted for a very serious crime could not be prosecuted, but would be released into the Canadian community, potentially endangering public safety, thwarting the goals of extradition and effectively encouraging international crime.

69 McVey, supra per La Forest J. at page 551, A.B.A. Tab 19. 70 Ibid at pages 522-523; Manno, supra at page 556, A.B.A. Tab 44; Rizzuto, supra at paragraph 77, A.B.A. Tab 26. - 30 -

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61. In the present case the evidence that forms the basis of the committal order (second degree murder) is factually connected to the evidence that forms the basis of the foreign charge (first degree murder). The issue of whether the evidence will ultimately support a finding of guilt for first or second degree murder is a matter for the foreign trial court to determine after hearing all of the evidence, pursuant to its own laws. The Minister is entitled to rely on the information contained in the American request, which includes the fact that the Respondent has been indicted by a grand jury for first degree murder, as a basis to surrender on the foreign offence. The Court of Appeal’s finding that “an essential element of the foreign offence of first degree murder appears to be missing” and therefore the Respondent cannot be surrendered to face a charge of first degree murder, disrespects the American judicial process and effectively overturns a finding made by the grand jury pursuant to American law that there is sufficient evidence to prosecute the Respondent for the offence of first degree murder. This is antithetical to the principles of trust and respect for other nations which are at the heart of extradition.

E. THE “MISALIGNMENT TEST” IS INCONSISTENT WITH INTERNATIONAL PRACTICE

62. Double criminality is an internationally recognized principle in extradition law. Its application has developed quite consistently to require an assessment of the evidence in the requesting state against the law of the requested state. An assessment of the elements of the foreign law has nowhere emerged as an accepted international practice, nor is it reflected in Canada's extradition treaties. Canada’s extradition relationship with the United States of America is governed by the Treaty on Extradition between Canada and the United States. The Treaty provides no support for the “misalignment test” and establishes no requirement for the assessment of foreign evidence; rather it focuses on the need for each country to assess the evidence in accordance with its own law:

Article 2

(1) 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. - 31 -

Appellant’s Factum Statement of Argument

Article 8

The determination that extradition should or should not be granted shall be made in accordance with the law of the requested State and the person whose extradition is sought shall have the right to use all remedies and recourses provided by such law.

Article 10

(1) Extradition shall be granted only if the evidence be found sufficient, according to the laws of the place where the person sought shall be found, either to justify his committal for trial if the offense of which he is accused had been committed in its territory or to prove that he is the identical person convicted by the courts of the requesting State. (emphasis added)

63. While Canada’s international obligations must be found within the confines of the Treaty, assistance in interpreting these obligations may be found by practices followed by other states. As noted by La Forest J, in McVey:

… So far as the international obligations of Canada (and for that matter other states) are concerned, therefore, they must be found within the confines of the treaties. Of course, some assistance may be found in the practices followed by other states and there is considerable similarity in the practices of different states. In discussing these practices, international writers have for convenience identified certain principles or "rules" such as double criminality and so on. These are convenient labels, and this international practice, as noted in Allard (at p. 865), "may no doubt have a certain value in interpreting the law", but in the end the international duty must be found in the terms of the appropriate treaty. This was the position taken by this Court in R. v. Parisien, [1988] 1 S.C.R. 950. (emphasis added)71

64. In recognition of the proliferation of international crime, the following standard language is found in UN multilateral conventions involving extradition obligations:

71 McVey supra per La Forest J. at page 508, A.B.A. Tab 19. - 32 -

Appellant’s Factum Statement of Argument

States Parties shall, subject to their domestic law, endeavour to expedite extradition procedures and to simplify evidentiary requirements relating thereto in respect of any offence to which this [convention] applies. (emphasis added)72

65. The United Nations Model Treaty is further evidence that the conduct based test is the preferred international approach to double criminality. Article 2 of the United Nations Model Treaty states:

Article 2 Extraditable offences

1. For the purposes of the present Treaty, extraditable offences are offences that are punishable under the laws of both Parties by imprisonment or other deprivation of liberty for a maximum period of at least one/two year(s), or by a more severe penalty. Where the request for extradition relates to a person who is wanted for the enforcement of a sentence of imprisonment or other deprivation of liberty imposed for such an offence, extradition shall be granted only if a period of at least four/six months of such sentence remains to be served.

2. In determining whether an offence is an offence punishable under the laws of both Parties, it shall not matter whether:

(a) The laws of the Parties place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology;

(b) Under the laws of the Parties the constituent elements of the offence differ, it being understood that the totality of the acts or omissions as presented by the requesting State shall be taken into account. (emphasis added)73

66. The September 2008 report of the United Nations Office on Drugs and Crime (UNODC) workshop on international cooperation reflects the recommendations of participants, of which Canada was one, from the Organization for Security and Cooperation in Europe (OSCE) for

72 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Article 6, paragraph 7 Can. T.S. 1990 No. 42 (ratified by Canada 1990/07/05; in force 1990/11/11), A.B.A. Tab 61; 2000 UN Convention against Transnational Organized Crime, Article 16, paragraph 8 2225 U.N.T.S. I-39574 (ratified by Canada 13/05/02; in force 29/09/03), A.B.A. Tab 62; UN Convention Against Corruption, Article 44, paragraph 9, 2349 U.N.T.S. I- 42146 (ratified by Canada 2007/ 07/07; in force 2007/11/01), A.B.A. Tab 60. 73 United Nations Model Treaty on Extradition, Article 2 UNGA, 68th Sess., A/RES/45/116 (1990), A.B.A. Tab 63. - 33 -

Appellant’s Factum Statement of Argument

strengthening international legal cooperation to combat transnational organized crime. Among the recommendations with respect to extradition and double criminality are the following:

š Dual criminality protection should be considered satisfied if the conduct constituting the foreign offence, had it occurred locally, would have constituted an offence under domestic law and a punishability standard is met.

š The fact that there are different constituent elements as essential components of the crime in the requesting and requested States should not be a consideration in the determination of double criminality.

š The naming, defining, categorizing or characterizing of offences differently in the requesting and requested States should not be factors in determining dual criminality.

š Mutual trust and broad interpretation should be adhered to in determining dual criminality, as States embark on resorting to the extradition provisions of the UNTOC Convention.74

67. The recent decision of the U.K. House of Lords in Norris, supra, examines the relative merits of utilizing a conduct based test versus an offence based test to assess double criminality. The House of Lords concluded that the U.K. extradition statute was consistent with either approach but adopted the conduct based approach as it was the “most universally followed”, and it avoided the need to investigate the legal ingredients of the foreign offence. The House of Lords recognized the difficulties with the offence based approach and adopted the following reasoning of this Court in McVey:

[T]o require evidence of foreign law beyond the documents now supplied with the requisition would cripple the operation of the extradition proceedings…Flying witnesses in to engage in abstruse debates about legal issues arising in a legal system with which the judge is unfamiliar is a certain recipe for delay and

74 Report on the SPMU-UNODC Workshop on strengthening international legal co-operation among the OSCE participating States to combat transnational organized crime, A.B.A. Tab 64. - 34 -

Appellant’s Factum Statement of Argument

confusion to no useful purpose, particularly if one contemplates the joys of translation and the entirely different structure of the foreign systems of law.75

68. The House of Lords also relied on the comments of Lord Steyn in Re Ismail,76 that “a broad and generous construction” should be given to extradition statutes intended to serve the purpose of bringing to justice those accused of serious crimes, noting that “there is a transnational interest in the achievement of this aim.”77 The House of Lords adopted this comment and held that the conduct based approach to double criminality more readily achieves this vital objective.

69. The European Union’s focus when dealing with requests for extradition between member states has moved away from a strict adherence to the principle of double criminality on the basis that even a conduct based test provides insufficient recognition of the mutual trust amongst European Union member states. In 2002 the Council Framework Decision (FWD) replaced the European Convention between member states and introduced the European arrest warrant. Under the FWD there is a list of approximately thirty offences for which a person may be surrendered to a member state without proof of double criminality on the condition that the offence is punishable by three or more years. This system is premised on the “high degree of trust and solidarity between member states” and their common interest in prosecution of crimes for the protection of the public.78 Even for offences between European Union members, and non- member states where double criminality must be proven, the European Union FWD provides that,

surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing

75 Norris, supra at paragraph 89, A.B.A. Tab 21, quoting from McVey, supra at page 528, A.B.A. Tab 19. 76 [1998] 3 All E.R. 1007. 77 Ibid, at page 1011. 78 Advocaten voor de Wereld VZW v. Leden van Ministerrad, [2008] All ER (EC) 317 at pages 350- 353 and 355-357, A.B.A. Tab 1. See also Spinellis, Dionysios “Extradition- Recent Developments in European Criminal Law”, European Journal of Law Reform, Vol. VIII no. 2/3 223 at pages 227-236, A.B.A. Tab 69. - 35 -

Appellant’s Factum Statement of Argument

Member state, whatever the constituent elements or however described. (emphasis added)79

70. Australia’s approach to double criminality is consistent with this Court’s views in McVey as it is recognized that the magistrate does not have to be satisfied that the conduct that is submitted by the requesting state in support of its extradition request constitutes the foreign offence.80 Rather double criminality is satisfied if the acts in respect of which extradition is sought are criminal under both systems even if the relevant offences have different names or elements.”81

71. New Zealand has also adopted a double criminality test that is codified in its Extradition Act.82 The Act makes it clear that the focus is not on the name or the constituent elements of the offences, rather the focus is on whether the totality of the acts or omissions alleged to have been committed fall within the terms of the applicable treaty.83 The New Zealand Extradition Act also permits extradition without the necessity of satisfying the principle of double criminality if there is no such requirement in a treaty.

72. The Supreme Court of the United States first adopted a conduct based test to satisfy the principle of double criminality in the 1903 decision of Wright v. Henkel.84 In that case, the Supreme Court recognized that “treaties must receive a fair interpretation according to the intention of the contracting parties and so as to carry out their manifest purpose.” In determining

79 Framework Decision, Article 2 (JHA) 2002/584 (OJ 2002 L190), A.B.A. Tab 65. 80 United States of America and the Director of Public Prosecutions v. Holt, [1994] 126 ALR 544 (Fed Ct.) at page 550, A.B.A. Tab 40; Re Guenter Zoeller v. Federal Republic of Germany, [1989] 91 ALR 341 (Fed Ct.) at pages 351-353 and 357-358, A.B.A. Tab 24; McDade v. United Kingdom, [1999] FCA 1868 at paragraphs 14-16 and 23, A.B.A. Tab 18. 81 Zoeller, supra at paragraph 41, A.B.A. Tab 24; Riley v. The Commonwealth of Australia, [1985] 62 ALR 497 (H.C.) per Deane J. at pages 506-511, A.B.A. Tab 25; Extradition Act 1988 (Australia), Section 19(2) (c), Act No. 4 1988, as amended, A.B.A. Tab 57. 82 Extradition Act (New Zealand), Section 19(2) (c), 1999 No. 55, A.B.A. Tab 58. 83 United States of America v. Cullinane, [2003] 2 NZLR 1 (C.A.) at page 17, A.B.A. Tab 36. 84 190 U.S. 40 (1903) at pages 57-58, A.B.A. Tab 55. - 36 -

Appellant’s Factum Statement of Argument

if double criminality was satisfied, the focus is on whether the essential character of the transaction is the same in the requesting and requested state.85

73. The jurisprudence in the United States continues to recognize that the principle of double criminality is satisfied as long as the conduct is criminal in both countries. In particular, there is no requirement that the offences bear the same name or have the same elements, nor does the scope of liability have to match.86

74. In short, the Court of Appeal’s decision in the present case is inconsistent with what has become an almost universal practice to apply a conduct based test in order to assess double criminality. Imposing a “misalignment test” on the Minister puts Canada out of step with its international partners and may result in both the reduced efficiency and effectiveness of the extradition system. As Canada becomes an increasingly more “difficult” treaty partner, it is at risk of becoming an increasingly more attractive haven for criminals.

F. THE SURRENDER ORDER CANNOT BE CHARACTERIZED AS UNREASONABLE

75. It is established law that the Minister is required to consider whether surrender would violate an individual’s rights under s. 7 of the Charter. Pursuant to s. 44(1) of the Act, the Minister cannot order surrender if it would be “unjust or oppressive in all the circumstances.” This Court in Lake recognized that similar considerations apply under s. 44(1) of the Act and s. 7 of the Charter.87 The applicable test is whether ordering extradition would “shock the conscience”,88 or whether the fugitive faces “a situation that is simply unacceptable.”89

85 Ibid. 86 Kelly v. Griffin, 241 U.S. 6 (1916) at pages 11-15, A.B.A. Tab 15; Collins v. Loisel, 295 U.S. 309 (1922) at pages 309-312, A.B.A. Tab 4; Demjanjuk v. Petrovsk, 776 F2d 571 (6th Cir. 1985) at pages 576-580, cert. denied 475 U.S. 1016 (1986), A.B.A. Tab 5; In the matter of the Extradition of Antonio Manzi, 888 F2d 204 (1st Cir. 1989) at pages 207-208, cert. denied 494 U.S. 1017 (1990), A.B.A. Tab 12; Ernest Wolfgang Brauch v. Robert Raiche, 618 F 2d 843 (1st Cir .1980) at pages 847-848, A.B.A. Tab 7; United States of America v. Sensi, 879 F2d 888 (D.C. Cir.1989) at pages 891-894, A.B.A. Tab 48. 87 Lake, supra at paragraph 24, A.B.A. Tab 17. 88 Kindler, supra per McLachlin J. at page 849, A.B.A. Tab 16; Burns, supra at page 321, A.B.A. Tab 32. 89 United States of America v. Allard, [1987] 1 S.C.R. 564 per La Forest J. at pages 571-572, A.B.A. Tab 30. - 37 -

Appellant’s Factum Statement of Argument

Deference is owed to the Minister’s assessment in order to avoid interfering unduly in decisions that involve the good faith and honour of this country in its relations with other states. 90

76. The Minister’s decision to order surrender for the foreign offence of first degree murder in the face of a committal for second degree murder neither shocks the conscience nor creates a situation that is simply unacceptable. Indeed, in the absence of any requirement in the Act or Treaty to “align’” the foreign conduct with the elements of the foreign offence, arguably it would be unreasonable for the Minister to impose such a restriction on surrender.

77. The Court of Appeal read a “misalignment test” into the wording of section 44 of the Act in the absence of any indication of a Parliamentary intention to do so. As stated earlier, the creation of a “misalignment test” is at complete odds with the decision of this Court in McVey which predates the coming into force of the Act. It is a principle of statutory interpretation that Parliament cannot be presumed to have intended to change the law without clearly expressing such an intention.91 Moreover, this new test is inconsistent with the predominant international trend in the area of double criminality. It follows that there is neither textual, nor contextual support for the creation of a “misalignment test.”

78. The Court of Appeal further erred in considering the possible range of sentence in the United States as part of this new “misalignment test”. If the “misalignment test” requires both an assessment of the elements of the foreign offence and a determination of the appropriate sentence to be applied in the circumstances, it looks increasingly like a foreign trial on Canadian soil. In any event, there is nothing shocking about the possibility of a life sentence for first degree murder in the United States as the penalty for first and second degree murder in Canada is also life imprisonment.92

90 Lake, supra at paragraphs 21-32. See also Kindler, supra per McLachlin J. at page 949, A.B.A. Tab 17. 91 Ruth Sullivan, “Driedger on the Construction of Statutes” 3d ed. (Toronto: Buttersworths, 1994) at page 368, A.B.A. Tab 70. 92 S. 235 Criminal Code of Canada, R.S.C. 1985, Chap. C-46, infra at pages 47 and ff. See also Minister of Justice v. Jamieson, [1996] 1 S.C.R. 465, rev’g, [1994] J.Q. no. 524 (Que. C.A.), A.B.A. Tab 20; Ross v. United States of America, [1996] 1 S.C.R. 469, aff’g [1994] B.C.J. no. 2215 (B.C.C.A.), 119 D.L.R. (4th) 333, at paragraphs 117-122, A.B.A. Tab 27; Whitley v. United States of America, [1994] O.J. no. 2378 (Ont. C.A.), 20 O.R. 794 at paragraphs 49-43, aff’d [1996] 1 S.C.R. 476, A.B.A. Tab 54. - 38 -

Appellant’s Factum Statement of Argument

79. In McVey this Court described the connection that should exist between the foreign offence and the Canadian offence in a list treaty as the same “broad categories of conduct”:

In considering this issue, it must be remembered that the crimes listed in the treaty are not to be interpreted according to the niceties of the applicable legislation of either country. Rather they are described in compendious terms to catch broad categories of conduct; see La Forest's Extradition, 3rd ed., at p. 76, and the cases there cited. In other words, extradition crimes are described in a comprehensive and generic sense.

[…]

As has frequently been stated, it is the essence of the offence that is important; see, for example, Cotroni v. Attorney General of Canada, 1974 CanLII 210 (S.C.C.), [1976] 1 S.C.R. 219, at p. 222. (emphasis added)93

80. In the within case, the Respondent conceded that he could be surrendered for second degree murder. Second degree murder is defined as culpable homicide as are first degree murder and manslaughter by virtue of section 229 of the Criminal Code. As such, the finding by the extradition judge that the conduct amounted to second degree murder in Canada, entitled the Minister to order the Respondent’s surrender for that conduct regardless of how it was characterized in the foreign state. The approach adopted by the Minister is consistent with this Court’s decisions in Droste v. R94 and R v. Farrant95 which recognize that first and second degree murder are not separate offences. The classification of the offence as first and second degree is for sentencing purposes only and relates to the punishment that will be imposed upon conviction.96

81. In this case the Minister concluded that “murder” was the essence of the offence charged in the United States and therefore a finding that the evidence supported a charge of murder in Canada, regardless of degree, was sufficient to justify surrender on the offence charged in the United States. The Court of Appeal misconstrued the Minister’s findings as a statement that there

93 McVey, supra at per La Forest J. pages 552-553, A.B.A. Tab 19. 94 [1984] 1 S.C.R. 208, A.B.A. Tab 6. 95 [1983] 1 S.C.R. 124, A.B.A. Tab 22. 96 Farrant, supra per Dickson J. at pages 140-141, A.B.A. Tab 22; Droste, supra per Dickson J. at pages 217-218, A.B.A. Tab 6. - 39 -

Appellant’s Factum Statement of Argument

was no difference at all between first and second degree murder. While there can be no doubt that the sentence for first degree murder is more severe than that for second, in both Canada and the United States, this is unrelated to double criminality and would not cause surrender to be unreasonable.

G. CONCLUSION

82. The creation and application of the “misalignment test” by the Court of Appeal for Ontario is inconsistent with the conduct based approach to satisfying the principle of double criminality, endorsed by this Court in McVey and Parliament in the Act. There is nothing in the Act or Treaty that requires the Minister to be satisfied that the elements of the foreign offence are proven by the evidence that forms the basis of the committal. Such an approach would interfere with the right of the requesting state to prosecute accused persons pursuant to its own law, for offences charged within its own jurisdiction.

83. Once the committal judge determined that the Respondent’s conduct would amount to second degree murder, which is culpable homicide pursuant to Canadian law, it was within the Minister’s discretion to order the surrender of the Respondent for that conduct. The Minister of Justice acted within his jurisdiction in ordering the surrender of the Respondent for the foreign offence of first degree murder pursuant to s. 58(b) of the Act. The Minister’s decision to order the surrender of the Respondent was consistent with the governing legislation, the Treaty and the principle of double criminality. For all of these reasons, and in light of the broad discretion afforded to the Minister by this Court in Lake, the Minister’s decision to surrender the Respondent is reasonable and should be upheld.

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Appellant’s Factum Order Sought

PART IV – COSTS

84. The Appellant does not seek an order of costs.

------

PART V – ORDER SOUGHT

85. The Appellant seeks an order setting aside the order of the Court of Appeal for Ontario, and reinstating the order surrendering the Respondent to the United States of America to face prosecution for 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.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Dated at Ottawa, this 17th day of February, 2009.

Janet Henchey Of Counsel for the Appellant

Nancy Dennison Of Counsel for the Appellant

- 41 -

Appellant’s Factum Table of Authorities

PART VI – TABLE OF AUTHORITIES

Cases Cited Paragraph(s)

Advocaten voor de Wereld VZW v. Leden van Ministerrad, [2008] All ER (EC) 317 ...... 69

Argentina v. Mellino, [1987] 1 S.C.R. 536 ...... 56

Canada v. Schmidt, [1987] 1 S.C.R. 500 ...... 21, 56

Collins v. Loisel, U.S. 309 (1922) ...... 73

Demjanjuk v. Petrovsk, 776 F2d 571 (6th Cir, 1985), cert. denied 475 U.S. 1016 (1986) ...... 73

Droste v. R, [1984] 1 S.C.R. 208 ...... 80

Ernest Wolfgang Brauch v. Robert Raiche, 618 F 2d 843 (1st Cir. 1980) ...... 73

France v. Ouzghar 2009 ONCA 69 ...... 42

Germany (Federal Republic) v. Krapohl, [1998] O.J. No. 2326 (Ont. C.A.), 110 O.A.C. 129 ...... 57

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631 ...... 49

In re Ismail, [1998] 3 All E.R. 1007 ...... 68

In the matter of the Extradition of Antonio Manzi, 888 F2d 204 (1st Cir. 1989), cert. denied 494 U.S. 1017 (1990) ...... 73

Karas v. Canada (Minister of Justice) 2007 BCCA 637 ...... 36-38, 60

Karas v. Canada (Minister of Justice) 2009 BCCA 1 ...... 27, 29, 38, 60

Kelly v. Griffin, 241 U.S. 6 (1916) ...... 73

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 ...... 3, 56, 75

Lake v Canada (Minister of Justice), [2008] 1 S.C.R. 761 ...... 3, 37, 44, 75, 83

McDade v. United Kingdom, [1999] FCA 1868 ...... 70

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Appellant’s Factum Table of Authorities

Cases Cited (cont’d) Paragraph(s)

McVey (Re); McVey v. United States of America, [1992] 3 S.C.R. 475 ....2, 3, 24-26, 28-29, 31, 35, 38-39, 48-49, 59, 60, ...... 63, 67, 70, 77, 79, 82

Minister of Justice v. Jamieson, [1996] 1 S.C.R. 465, rev’g [1994] J.Q. no. 524 (Que. C.A.) ...... 78

Norris v. the Government of the United States of America and others, [2008] UKHL 16 ...... 23, 31, 67

R v. Farrant, [1983] 1 S.C.R. 124 ...... 80

R v. Parisien, [1988] 1 S.C.R. 950 ...... 59

Re Guenter Zoeller v. Federal Republic of Germany, [1989] 91 ALR 341 (Fed Ct.) ...... 70

Riley v. The Commonwealth of Australia, [1985] 62 ALR 497 (H.C.) ...... 70

Rizzuto v. Canada (Attorney General) 2005 QCCA 1152 ...... 50, 59

Ross v. United States of America, [1994] B.C.J. No. 2215 (B.C.C.A.), 119 D.L.R. (4th) 333, aff’d [1996] 1 S.C.R. 469 ...... 78

Stewart v. United States of America, [1998] B.C.J. No. 3010 (B.C.C.A.), 131 C.C.C. (3d) 423 ...... 27

Thailand v. Saxena 2006 BCCA 98 ...... 50-51

United States of America v. Allard, [1987] 1 S.C.R. 564 ...... 75

United States of America v. Bounnam, [1995] O.J. No. 877 (Gen. Div.) ...... 27

United States of America v. Burns, [2001] 1 S.C.R. 283 ...... 3, 75

United States of America v. Chong, [1996] O.J. No. 2220 (C.A.), 91 O.A.C. 319 ...... 27, 29

United States of America v. Commisso, [2000] O.J. No. 468 (Ont. C.A.), 47 O.R. (3d) 257 ...... 27-29, 53-54

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Appellant’s Factum Table of Authorities

Cases Cited (cont’d) Paragraph(s)

United States of America v. Cotroni, [1989] 1 S.C.R. 1469 ...... 56, 79

United States of America v. Cullinane, [2003] 2 NZLR 1 (C.A.) ...... 71

United States of America v. Dynar, [1997] 2 S.C.R. 462 ...... 27

United States of America v. Ferras, [2006] 2 S.C.R. 77 ...... 27

United States of America v. Gorcyca 2007 ONCA 76 ...... 15, 39-44

United States of America and the Director of Public Prosecutions v. Holt, [1994] 126 ALR 544 (Fed Ct.) ...... 70

United States of America v. Kissel (2008), 89 O.R. (3d) 481 (C.A.) ...... 42-43

United States of America v. Kwok, [2001] 1 S.C.R. 532 ...... 27

United States of America v. Lepine, [1994] 1 S.C.R. 286 ...... 27

United States of America v. Manno (1996), 112 C.C.C. (3d) 544 (Que C.A.) ...... 27-28, 59

United States of America v. Reumayr 2003 BCCA 375 ...... 32-34, 36, 43

United States of America v. Reumayr 2005 BCCA 391 ...... 34-36

United States of America v. Saad 2007 ONCA 75 ...... 40, 53

United States of America v. Sensi, 879 F2d 888 (D.C. Cir. 1989) ...... 73

United States of America v. Soffitt, [1993] B.C.J. No. 2145 (B.C.C.A.), 36 B.C.A.C. 155 ...... 12, 27, 29

United States of America v. Smith, [1984] O.J. No. 3466 (Ont. Co. Ct.), 15 C.C.C. (3d) 16 ...... 12, 29

United States of America v. Turenne 2004 MBCA 120 ...... 27, 29

United States of America v. Turner, [2002] N.J. No. 361 (Nfld. S.C.T.D.), 230 Nfld. & P.E.I.R. 127 ...... 12

Whitley v. United States of America, [1994] O.J. No. 2478 (Ont. C.A.), 20 O.R. 794, aff’d [1996] 1 S.C.R. 476 ...... 78

Washington v. Johnson, [1988] 1 S.C.R. 327 ...... 23, 27

Wright v. Henkel, 190 U.S. 40 (1903) ...... 72 - 44 -

Appellant’s Factum Table of Authorities

Statutes and Regulations Cited Paragraph(s)

Canada. House of Commons Debates, 1st Session, 36th Parliament, v. 135, Bill C-40, second reading. Ms. Eleni Bakopanos (Parliamentary Secretary to Minister of Justice and Attorney General of Canada, Lib.) at pp. 9005-9006 ...... 45

Extradition Act 1988 (Australia), Section 19(2)(c), Act No. 4 1988 as amended ...... 70

Extradition Act (New Zealand), Section 4, 1999 No. 55 ...... 71

Treaties and Other International Instruments Cited

Treaty on Extradition Between the Government of Canada and the Government of the United States of America, Canada Gazette Part I, April 3, 1976, 1521-1529, as amended by the First Protocol, Canada Gazette Part I, December 14, 1991, 4058-4060, as further amended by the Second Protocol, Canada Gazette Part 1, June 14, 2003, 1802-1803 ... 20, 24, 39, 49, 62-63, ...... 82-83

United Nations Convention against Corruption, Article 44, paragraph 9, 2349 U.N.T.S. I-42146 (ratified by Canada 2007/07/07; in force 2007/11/01) ...... 64

United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Article 6, paragraph 7 Can. T.S. 1990 No. 42 (ratified by Canada 1990/07/05; in force 1990/11/11) ...... 64

United Nations Convention against Transnational Organized Crime, Article 16, paragraph 8 2225 U.N.T.S. I-39574 (ratified by Canada 13/05/02; in force 29/09/03) ...... 64

United Nations Model Treaty on Extradition, Article 2, UNGA, 68th Sess., A/RES/45/116 (1990) ...... 65

Report on the SPMU-UNODC Workshop on strengthening international legal co-operation among the OSCE participating States to combat transnational organized crime ...... 66

European Union, Framework Decision, Article 2 (JHA) 2002/584 (OJ 2002 L190) ...... 69

Vienna Convention on the Law of Treaties, Article 31, 1969 (ratified by Canada; 1970/10/14; in force 1980/01/27) ...... 56 - 45 -

Appellant’s Factum Table of Authorities

Authors Cited Paragraph(s)

La Forest, A.W., La Forest’s Extradition To and From Canada, 3d. ed. Aurora: Canada Law Book 1991 ...... 21, 25, 28

Shearer, I. A., Extradition in International Law, New York: Oceana Publications Inc. 1971 ...... 22

Spinellis, Dionysios, Extradition- Recent Developments in European Criminal Law, European Journal of Law Reform, Vol. VIII no. 2/3 ...... 69

Sullivan, Ruth, Driedger on the Construction of Statutes, 3d ed. Toronto and Vancouver: Butterworths, 1994 ...... 77 - 46 -

PART VII

RELEVANT LEGISLATIVE PROVISIONS

RELEVANT LEGISLATIVE PROVISION PAGE

Canadian Charter of Rights and Freedoms, Part I of the Constitution 47 Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 7

Criminal Code, R.S.C. 1985, c. C- 46, ss. 229, 231, 235, 582 48

Extradition Act, R.S.C. 1999, c. 18, ss. 3, 15, 29, 40, 43, 44, 58 53

Extradition Act, S.C. 1877, c. 25, as amended by R.S.C. 1985, c. E-23 58

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Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being - 46 - Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 7

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 7

7. Everyone has the right to life, liberty and 7. Chacun a droit à la vie, à la liberté et à la security of the person and the right not to sécurité de sa personne; il ne peut être porté be deprived thereof except in accordance atteinte à ce droit qu'en conformité avec les with the principles of fundamental justice principes de justice fondamentale - 48 -

Criminal Code, R.S.C. 1985, c. C- 46, ss. 229, 231, 235, 582 - 47 -

Criminal Code, R.S.C. 1985, c. C- 46, ss. 229, 231, 235, 582 Murder Meurtre

s. 229 Culpable homicide is murder s. 229 L’homicide coupable est un meurtre dans l’un ou l’autre des cas suivants : (a) where the person who causes the death of a human being a) la personne qui cause la mort d’un être humain : (i) means to cause his death, or (i) ou bien a l’intention de causer sa (ii) means to cause him bodily harm mort, that he knows is likely to cause his death, and is reckless whether death (ii) ou bien a l’intention de lui ensues or not; causer des lésions corporelles qu’elle sait être de nature à causer sa (b) where a person, meaning to cause mort, et qu’il lui est indifférent que death to a human being or meaning to la mort s’ensuive ou non; cause him bodily harm that he knows is likely to cause his death, and being b) une personne, ayant l’intention de reckless whether death ensues or not, by causer la mort d’un être humain ou accident or mistake causes death to ayant l’intention de lui causer des another human being, notwithstanding lésions corporelles qu’elle sait de nature that he does not mean to cause death or à causer sa mort, et ne se souciant pas bodily harm to that human being; or que la mort en résulte ou non, par accident ou erreur cause la mort d’un (c) where a person, for an unlawful autre être humain, même si elle n’a pas object, does anything that he knows or l’intention de causer la mort ou des ought to know is likely to cause death, lésions corporelles à cet être humain; and thereby causes death to a human being, notwithstanding that he desires c) une personne, pour une fin illégale, to effect his object without causing fait quelque chose qu’elle sait, ou death or bodily harm to any human devrait savoir, de nature à causer la being. mort et, conséquemment, cause la mort d’un être humain, même si elle désire atteindre son but sans causer la mort ou une lésion corporelle à qui que ce soit. Classification of murder Classification

s. 231(1) Murder is first degree murder or s. 231 (1) Il existe deux catégories de second degree murder. meurtres : ceux du premier degré et ceux du deuxième degré.

Planned and deliberate murder Meurtre au premier degré

(2) Murder is first degree murder when it is (2) Le meurtre au premier degré est le planned and deliberate. meurtre commis avec préméditation et de propos délibéré. - 49 -

Criminal Code, R.S.C. 1985, c. C- 46, ss. 229, 231, 235, 582 - 48 -

Contracted murder Entente

(3) Without limiting the generality of (3) Sans que soit limitée la portée générale subsection (2), murder is planned and du paragraphe (2), est assimilé au meurtre deliberate when it is committed pursuant to au premier degré quant aux parties an arrangement under which money or intéressées, le meurtre commis à la suite anything of value passes or is intended to d’une entente dont la contrepartie pass from one person to another, or is matérielle, notamment financière, était promised by one person to another, as proposée ou promise en vue d’en consideration for that other’s causing or encourager la perpétration ou la complicité assisting in causing the death of anyone or par assistance ou fourniture de conseils. counselling another person to do any act causing or assisting in causing that death.

Murder of peace officer, etc. Meurtre d’un officier de police, etc.

(4) Irrespective of whether a murder is (4) Est assimilé au meurtre au premier planned and deliberate on the part of any degré le meurtre, dans l’exercice de ses person, murder is first degree murder when fonctions: the victim is a) d’un officier ou d’un agent de police, (a) a police officer, police constable, d’un shérif, d’un shérif adjoint, d’un constable, sheriff, deputy sheriff, officier de shérif ou d’une autre sheriff’s officer or other person personne employée à la préservation et employed for the preservation and au maintien de la paix publique; maintenance of the public peace, acting in the course of his duties; b) d’un directeur, d’un sous-directeur, d’un instructeur, d’un gardien, d’un (b) a warden, deputy warden, instructor, geôlier, d’un garde ou d’un autre keeper, jailer, guard or other officer or a fonctionnaire ou employé permanent permanent employee of a prison, acting d’une prison; in the course of his duties; or c) d’une personne travaillant dans une (c) a person working in a prison with prison avec la permission des autorités the permission of the prison authorities de la prison. and acting in the course of his work therein.

Hijacking, sexual assault or kidnapping Détournement, enlèvement, infraction sexuelle ou prise d’otage

(5) Irrespective of whether a murder is (5) Indépendamment de toute planned and deliberate on the part of any préméditation, le meurtre que commet une person, murder is first degree murder in personne est assimilé à un meurtre au respect of a person when the death is premier degré lorsque la mort est causée caused by that person while committing or par cette personne, en commettant ou attempting to commit an offence under one tentant de commettre une infraction prévue - 50 -

Criminal Code, R.S.C. 1985, c. C- 46, ss. 229, 231, 235, 582 - 49 -

of the following sections: à l’un des articles suivants : (a) section 76 (hijacking an aircraft); a) l’article 76 (détournement d’aéronef); (b) section 271 (sexual assault); b) l’article 271 (agression sexuelle); (c) section 272 (sexual assault with a weapon, threats to a third party or c) l’article 272 (agression sexuelle causing bodily harm); armée, menaces à une tierce personne ou infliction de lésions corporelles); (d) section 273 (aggravated sexual assault); d) l’article 273 (agression sexuelle grave); (e) section 279 (kidnapping and forcible confinement); or e) l’article 279 (enlèvement et séquestration); (f) section 279.1 (hostage taking). f) l’article 279.1 (prise d’otage).

Criminal harassment Harcèlement criminel

(6) Irrespective of whether a murder is (6) Indépendamment de toute planned and deliberate on the part of any préméditation, le meurtre que commet une person, murder is first degree murder when personne est assimilé à un meurtre au the death is caused by that person while premier degré lorsque celle-ci cause la mort committing or attempting to commit an en commettant ou en tentant de commettre offence under section 264 and the person une infraction prévue à l’article 264 alors committing that offence intended to cause qu’elle avait l’intention de faire craindre à the person murdered to fear for the safety la personne assassinée pour sa sécurité ou of the person murdered or the safety of celle d’une de ses connaissances. anyone known to the person murdered.

Murder during terrorist activity Meurtre : activité terroriste

(6.01) Irrespective of whether a murder is (6.01) Indépendamment de toute planned and deliberate on the part of a préméditation, le meurtre que commet une person, murder is first degree murder when personne est assimilé à un meurtre au the death is caused while committing or premier degré si la mort est causée au cours attempting to commit an indictable offence de la perpétration ou de la tentative de under this or any other Act of Parliament perpétration, visée par la présente loi ou where the act or omission constituting the une autre loi fédérale, d’un acte criminel offence also constitutes a terrorist activity. dont l’élément matériel — action ou omission — constitue également une activité terroriste.

Using explosives in association with Usage d’explosifs par une organization criminal organization criminelle - 51 -

Criminal Code, R.S.C. 1985, c. C- 46, ss. 229, 231, 235, 582 - 50 -

(6.1) Irrespective of whether a murder is (6.1) Indépendamment de toute planned and deliberate on the part of a préméditation, le meurtre que commet une person, murder is first degree murder when personne est assimilé à un meurtre au the death is caused while committing or premier degré lorsque la mort est causée au attempting to commit an offence under cours de la perpétration ou de la tentative section 81 for the benefit of, at the de perpétration d’une infraction prévue à direction of, or in association with a l’article 81 au profit ou sous la direction criminal organization. d’une organisation criminelle, ou en association avec elle.

Intimidation Intimidation d’une personne associée au système judiciaire

(6.2) Irrespective of whether a murder is (6.2) Indépendamment de toute planned and deliberate on the part of a préméditation, le meurtre que commet une person, murder is first degree murder when personne est assimilé à un meurtre au the death is caused while committing or premier degré lorsque la mort est causée au attempting to commit an offence under cours de la perpétration ou de la tentative section 423.1. de perpétration d’une infraction prévue à l’article 423.1.

Second degree murder Meurtre au deuxième degré

(7) All murder that is not first degree (7) Les meurtres qui n’appartiennent pas à murder is second degree murder. la catégorie des meurtres au premier degré sont des meurtres au deuxième degré. Punishment for Murder Peine pour meurtre

s. 235(1) Every one who commits first s. 235(1) Quiconque commet un meurtre au degree murder or second degree murder is premier degré ou un meurtre au deuxième guilty of an indictable offence and shall be degré est coupable d’un acte criminel et sentenced to imprisonment for life. doit être condamné à l’emprisonnement à perpétuité.

Minimum punishment Peine minimale

(2) For the purposes of Part XXIII, the (2) Pour l’application de la partie XXIII, la sentence of imprisonment for life sentence d’emprisonnement à perpétuité prescribed by this section is a minimum prescrite par le présent article est une peine punishment. minimale.

High treason and first degree murder Haute trahison et meurtre au premier degré - 52 -

Criminal Code, R.S.C. 1985, c. C- 46, ss. 229, 231, 235, 582 - 51 -

s. 582 No person shall be convicted for the s. 582 Seules les personnes inculpées offence of high treason or first degree expressément dans l’acte d’accusation de murder unless in the indictment charging haute trahison ou de meurtre au premier the offence he is specifically charged with degré peuvent être déclarées coupables de that offence. ces infractions. - 53 -

Extradition Act, R.S.C. 1999, c. 18, ss. 3, 15, 29, 40, 43, 44, 58 - 52 -

Extradition Act, R.S.C. 1999, c. 18, ss. 3, 15, 29, 40, 43, 44, 58

3. (1) A person may be extradited from 3. (1) Toute personne peut être extradée Canada in accordance with this Act and a du Canada, en conformité avec la présente relevant extradition agreement on the loi et tout accord applicable, à la demande request of an extradition partner for the d’un partenaire pour subir son procès dans purpose of prosecuting the person or le ressort de celui-ci, se faire infliger une imposing a sentence on — or enforcing a peine ou y purger une peine si : sentence imposed on — the person if a) d’une part, l’infraction mentionnée (a) subject to a relevant extradition dans la demande est, aux termes du agreement, the offence in respect of droit applicable par le partenaire, which the extradition is requested is sanctionnée, sous réserve de l’accord punishable by the extradition partner, applicable, par une peine by imprisoning or otherwise depriving d’emprisonnement ou une autre forme the person of their liberty for a de privation de liberté d’une durée maximum term of two years or more, or maximale de deux ans ou plus ou par by a more severe punishment; and une peine plus sévère;

(b) the conduct of the person, had it b) d’autre part, l’ensemble de ses actes occurred in Canada, would have aurait constitué, s’ils avaient été constituted an offence that is punishable commis au Canada, une infraction in Canada, sanctionnée aux termes du droit canadien : (2) For greater certainty, it is not relevant whether the conduct referred to in (2) Il est entendu que la concordance entre subsection (1) is named, defined or l’appellation juridique, la désignation, la characterized by the extradition partner in classification ou la définition donnée à the same way as it is in Canada. l’ensemble des actes de l’intéressé par le droit canadien et celle donnée par le droit applicable par le partenaire n’est pas prise en compte.

15. (1) The Minister may, after 15. (1) Le ministre peut, après réception receiving a request for extradition and de la demande d’extradition, s’il est being satisfied that the conditions set out in convaincu qu’au moins une infraction paragraph 3(1)(a) and subsection 3(3) are satisfait aux conditions prévues à l’alinéa met in respect of one or more offences 3(1)a) et au paragraphe 3(3), prendre un mentioned in the request, issue an authority arrêté introductif d’instance autorisant le to proceed that authorizes the Attorney procureur général à demander au tribunal, General to seek, on behalf of the au nom du partenaire, la délivrance de extradition partner, an order of a court for l’ordonnance d’incarcération prévue à the committal of the person under l’article 29. section 29. - 54 -

Extradition Act, R.S.C. 1999, c. 18, ss. 3, 15, 29, 40, 43, 44, 58 - 53 -

(2) If requests from two or more (2) En cas de demandes concurrentes extradition partners are received by the visant l’extradition d’une même personne, Minister for the extradition of a person, the le ministre détermine l’ordre dans lequel Minister shall determine the order in which elles seront traitées. the requests will be authorized to proceed.

(3) The authority to proceed must contain (3) L’arrêté comporte les éléments suivants : (a) the name or description of the person whose extradition is sought; a) le nom ou description de l’intéressé;

(b) the name of the extradition partner; b) le nom du partenaire; and c) la désignation des infractions qui, du (c) the name of the offence or offences point de vue du droit canadien, under Canadian law that correspond to correspondent à l’ensemble des actes the alleged conduct of the person or the reprochés à l’intéressé ou pour lesquels conduct in respect of which the person il a été condamné et dont au moins was convicted, as long as one of the l’une d’entre elles serait sanctionnée de offences would be punishable in la façon prévue à l’alinéa 3(1)b). accordance with paragraph 3(1)(b).

(4) A copy of an authority to proceed (4) La copie de l’arrêté reproduite par un produced by a means of telecommunication moyen de télécommunication qui rend la that produces a writing has the same communication sous forme écrite a, pour probative force as the original for the l’application de la présente partie, la même purposes of this Part. force probante que l’original.

29. (1) A judge shall order the 29. (1) Le juge ordonne dans les cas committal of the person into custody to suivants l’incarcération de l’intéressé await surrender if jusqu’à sa remise :

(a) in the case of a person sought for a) si la personne est recherchée pour prosecution, there is evidence subir son procès, la preuve — admissible under this Act of conduct admissible en vertu de la présente loi — that, had it occurred in Canada, would des actes justifierait, s’ils avaient été justify committal for trial in Canada on commis au Canada, son renvoi à procès the offence set out in the authority to au Canada relativement à l’infraction proceed and the judge is satisfied that mentionnée dans l’arrêté introductif the person is the person sought by the d’instance et le juge est convaincu que extradition partner; and la personne qui comparaît est celle qui est recherchée par le partenaire; (b) in the case of a person sought for the imposition or enforcement of a b) si la personne est recherchée pour se sentence, the judge is satisfied that the faire infliger une peine ou pour la conviction was in respect of conduct purger, le juge est convaincu qu’elle est that corresponds to the offence set out celle qui a été déclarée coupable des - 55 -

Extradition Act, R.S.C. 1999, c. 18, ss. 3, 15, 29, 40, 43, 44, 58 - 54 -

in the authority to proceed and that the actes et que ceux-ci correspondent à person is the person who was convicted. l’infraction mentionnée dans l’arrêté.

40. (1) The Minister may, within a 40. (1) Dans les quatre-vingt-dix jours period of 90 days after the date of a qui suivent l’ordonnance d’incarcération, le person’s committal to await surrender, ministre peut, par un arrêté signé de sa personally order that the person be main, ordonner l’extradition vers le surrendered to the extradition partner. partenaire.

(2) Before making an order under (2) Si l’intéressé demande l’asile au titre subsection (1) with respect to a person who de la Loi sur l’immigration et la protection has made a claim for refugee protection des réfugiés, le ministre consulte le under the Immigration and Refugee ministre responsable de l’application de Protection Act, the Minister shall consult cette loi avant de prendre l’arrêté. with the minister responsible for that Act.

(3) The Minister may seek any assurances (3) Avant d’extrader, le ministre peut that the Minister considers appropriate demander au partenaire de lui fournir les from the extradition partner, or may subject assurances qu’il estime indiquées ou poser the surrender to any conditions that the les conditions qui lui paraissent Minister considers appropriate, including a appropriées, y compris celle voulant que condition that the person not be prosecuted, l’intéressé ne soit poursuivi, se fasse nor that a sentence be imposed on or infliger une peine ou la purge qu’en rapport enforced against the person, in respect of avec les infractions pour lesquelles any offence or conduct other than that l’extradition est accordée. referred to in the order of surrender.

(4) If the Minister subjects surrender of a (4) Le cas échéant, l’extradition est person to assurances or conditions, the retardée jusqu’à ce que le ministre soit order of surrender shall not be executed satisfait des assurances reçues ou qu’il until the Minister is satisfied that the estime que les conditions sont acceptées. assurances are given or the conditions agreed to by the extradition partner.

(5) If the person has made submissions to (5) Le ministre, s’il est d’avis qu’un délai the Minister under section 43 and the supplémentaire est nécessaire pour rendre Minister is of the opinion that further time une décision par suite des observations que is needed to act on those submissions, the lui présente l’intéressé en vertu de l’article Minister may extend the period referred to 43, peut proroger le délai qui lui est imparti in subsection (1) as follows: au paragraphe (1) : (a) if the person is the subject of a a) dans le cas où l’intéressé fait l’objet request for surrender by the d’une demande de remise par la Cour International Criminal Court, and an pénale internationale et qu’il doit se issue has been raised as to the pencher sur une question de recevabilité admissibility of the case or the ou de compétence, d’au maximum jurisdiction of that Court, for a period quarante-cinq jours après que la Cour - 56 -

Extradition Act, R.S.C. 1999, c. 18, ss. 3, 15, 29, 40, 43, 44, 58 - 55 -

ending not more than 45 days after the pénale internationale a rendu une Court’s ruling on the issue; or décision sur la remise;

(b) in any other case, for one additional b) dans les autres cas, d’au maximum period that does not exceed 60 days. soixante jours.

(6) If an appeal has been filed under (6) En cas d’appel interjeté conformément section 50 and the Minister has extended à l’article 50 et de prorogation du délai de the period referred to in subsection (1), the quatre-vingt-dix jours, le ministre dépose Minister shall file with the court of appeal un avis de prorogation à la cour d’appel a notice of extension of time before the avant l’expiration de ce délai. expiry of that period.

43. (1) The person may, at any time 43. (1) L’intéressé peut, au plus tard before the expiry of 30 days after the date trente jours après la délivrance d’une of the committal, make submissions to the ordonnance d’incarcération, présenter ses Minister in respect of any ground that observations au ministre sur toute question would be relevant to the Minister in touchant son extradition éventuelle vers le making a decision in respect of the partenaire. surrender of the person. (2) Le ministre peut toutefois, si à son avis (2) The Minister may accept submissions les circonstances le justifient, accepter les even after the expiry of those 30 days in observations après l’expiration du délai de circumstances that the Minister considers trente jours. appropriate.

44. (1) The Minister shall refuse to 44. (1) Le ministre refuse l’extradition make a surrender order if the Minister is s’il est convaincu que : satisfied that a) soit l’extradition serait injuste ou (a) the surrender would be unjust or tyrannique compte tenu de toutes les oppressive having regard to all the circonstances; relevant circumstances; or b) soit la demande d’extradition est (b) the request for extradition is made présentée dans le but de poursuivre ou for the purpose of prosecuting or de punir l’intéressé pour des motifs punishing the person by reason of their fondés sur la race, la nationalité, race, religion, nationality, ethnic origin, l’origine ethnique, la langue, la couleur, language, colour, political opinion, sex, la religion, les convictions politiques, le sexual orientation, age, mental or sexe, l’orientation sexuelle, l’âge, le physical disability or status or that the handicap physique ou mental ou le person’s position may be prejudiced for statut de l’intéressé, ou il pourrait être any of those reasons. porté atteinte à sa situation pour l’un de ces motifs. - 57 -

Extradition Act, R.S.C. 1999, c. 18, ss. 3, 15, 29, 40, 43, 44, 58 - 56 -

(2) The Minister may refuse to make a (2) Il peut refuser d’extrader s’il est surrender order if the Minister is satisfied convaincu que les actes à l’origine de la that the conduct in respect of which the demande d’extradition sont sanctionnés par request for extradition is made is la peine capitale en vertu du droit punishable by death under the laws that applicable par le partenaire. apply to the extradition partner.

58. An order of surrender must 58. L’arrêté d’extradition énonce les points suivants : (b) describe the offence in respect of which the extradition is requested, the b) soit la désignation de l’infraction à offence for which the committal was l’origine de la demande d’extradition ou ordered or the conduct for which the figurant à l’ordonnance d’incarcération, person is to be surrendered; soit les actes ayant donné lieu à l’extradition; - 58 -

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Extradition Act, S.C. 1877, c. 25, as amended