Froom v. Canada (Minister of Justice)

Froom v. Canada (Minister of Justice)
Court (s) Database
Federal Court Decisions
Date
2003-11-07
Neutral citation
2003 FC 1299
File numbers
T-2024-01
Notes
Reported Decision
Decision Content
Date: 20031107
Docket: T-2024-01
Citation: 2003 FC 1299
BETWEEN:
ARTHUR FROOM,
Applicant,
- and -
THE MINISTER OF JUSTICE,
Respondent.
REASONS FOR ORDER
LAYDEN-STEVENSON J.
[1] Arthur Froom (also known as Arthur Kissel) wishes to avoid extradition to the United States of America on charges of conspiracy, fraud and laundering the proceeds of crime. In this application, he asks the court, among other things, to judicially review and quash the authority to proceed (ATP) issued by the Minister under the Extradition Act, S.C. 1999, c. 18 (the Act) on July 3, 2001.
FACTUAL AND PROCEDURAL BACKGROUND
[2] Because of the nature of some of the arguments that will be referred to in due course, it is necessary, for contextual purposes, to set out the factual and procedural basis that underlies this particular application. Mr. Froom is an American citizen, is married to a Canadian citizen and is presently resident in Canada. In the past, Mr. Froom travelled to and from Canada regularly for business purposes. In April, 1998, he was arrested in Toronto by Canadian officers for alleged violations of the former Immigration Act, R.S.C. 1985, c. I-2. He was released on conditions.
[3] Mr. Froom appeared before an adjudicator of the Immigration and Refugee Board regarding allegations that he had worked illegally in Canada, that he had been convicted of drinking and driving in the United States and that he was wanted in the United States on charges of fraud related to insurance claims. The allegation with respect to working illegally was not established and the impaired driving allegation was withdrawn. The adjudicator made a conditional deportation order on the basis of the remaining allegation. The adjudicator's order was the subject of an application for judicial review that was dismissed by Mr. Justice Kelen on October 2, 2003.
[4] On June 28, 2001, United States Embassy Diplomatic Note No. 456 was presented to the Department of Foreign Affairs and International Trade requesting the extradition of Arthur Kissel, a.k.a. Arthur Froom. The document indicates that "Kissel is wanted to stand trial on federal fraud offences". The acts for which extradition is sought are acts allegedly committed by Mr. Froom in relation to the business (the provision of medical services) that he ran with his wife. On July 3, 2001, the ATP issued. It was signed by counsel for the International Assistance Group (the IAG) for the Minister of Justice, Canada. It lists the following Canadian offences as being those that correspond to the conduct alleged against Mr. Froom in the United States:
- conspiracy to commit fraud contrary to sections 380 and 465(1) of the Criminal Code of Canada;
- fraud contrary to section 380 of the Criminal Code;
- conspiracy to launder the proceeds of crime contrary to sections 462.31 and 465(1)(c) of the Criminal Code; and
- laundering the proceeds of crime contrary to section 462.31 of the Criminal Code.
[5] The certified legal statement of the Assistant United States Attorney for the Southern District of New York, included as part of the documentation supporting the request for extradition, indicates that the first Grand Jury indictment in relation to this matter was returned on March 28, 1998. After considering additional evidence, the Grand Jury returned a First Superseding Indictment on November 4, 1998, modifying the charge in the original Indictment. On October 20, 1999, after considering additional evidence, the Grand Jury returned a Second Superseding Indictment and on March 29, 2000, after considering additional evidence, the Grand Jury returned a Third Superseding Indictment. The certified legal statement specifies that the Third Superseding Indictment replaces the previous Indictments as the charging document in the case.
[6] An ex parte application was made before a justice of the Superior Court of Justice, Ontario, for a warrant of arrest and it issued on September 11, 2001. Mr. Froom was arrested and later released on a recognizance requiring a cash deposit of $25,000 and a surety for the amount of $20,000. He filed a notice of application on November 12, 2001, seeking a writ of certiorari quashing the ATP, a declaration that it is invalid and of no force and effect and a declaration setting aside the decision of the Minister. In an amended notice of application dated May 5, 2003, Mr. Froom significantly expands the remedies sought and adds requests for various injunctions against the Minister of Justice and the Attorney General relating to the ATP and the extradition proceedings as well as various other remedies with respect to the Ontario Courts and the United States.
[7] Mr. Froom also made a claim for Convention refugee status in Canada. That claim was denied. There is additionally an action against Her Majesty dealing with issues similar to those involved in this application. The action is presently stayed on the consent of the parties.
[8] In relation to this proceeding, the respondent, by motion, sought to strike the application for judicial review. The prothonotary's decision allowing the motion (Froom v. Canada (Minister of Justice)), [2002] 4 F.C. 345 (Froom No. 1) was appealed and the appeal was allowed by Mr. Justice Gibson (Froom v. Canada (Minister of Justice)) (2002) 225 F.T.R. 173 (Froom No. 2). He concluded that while there exists a "compelling argument that this court does not have jurisdiction to judicially review the issuance of an Authority To Proceed, an equally compelling argument can be made that this court has such jurisdiction by virtue of the Federal Court Act and, in the absence of the ousting of that jurisdiction, this court should fully consider exercising it". In relation to the question whether, if this court has jurisdiction to judicially review an ATP, should it nonetheless refrain from exercising that jurisdiction, Mr. Justice Gibson had this to say:
Counsel for the Minister, without acknowledging that this Court has jurisdiction to review an Authority to Proceed, urged that, if the Court has the jurisdiction, it should not exercise it because there exists an adequate alternative remedy and further, that its exercise would be incompatible with the statutory scheme of the Extradition Act and expeditious fulfilment of Canada's international obligations in the field of extradition.
I am satisfied that this is an issue more appropriately dealt with on the hearing of any application for judicial review and not on a motion to strike an application.
[9] The hearing of this application began on August 12, 2003. The morning of August 12th was consumed by argument with respect to a motion by the applicant that had been scheduled for hearing during general sittings on August 11th. When it became apparent to the motions judge that the matter required significantly more time than was available on general sittings, the motion was directed to be set over and dealt with at the outset of the hearing of the application. Mr. Froom had requested that various portions of the respondent's record and memorandum of fact and law be struck on the basis that it was not apparent what documents were before counsel for the IAG when the decision to issue the ATP was made. Notwithstanding that the motion arguments were substantial, a compromise of the issue was eventually agreed upon, and when the respondent provided correspondence from the IAG counsel in this respect, the motion was withdrawn. It became apparent, however, that the remaining 1½ days would not provide sufficient time within which to canvass material contained in 15 volumes of authorities, 4 volumes of records and requiring the appearances of 5 lawyers. At the end of the day on August 13th, the hearing was adjourned and scheduled to resume on September 2nd.
[10] Matters were somewhat further complicated when one of the applicant's counsel fell ill prior to the September 2nd date and requested an adjournment on the Friday preceding the scheduled date. In response, I directed able counsel to be present on September 2nd to address the request for an adjournment and to be prepared to proceed. When we resumed, I, at the outset, commented on the fact that the counsel in question had not presented any of the oral argument during the first phase of the hearing. The submissions of one of Mr. Froom's counsel revealed that while the incapacitated counsel had not argued orally, there had been interaction and consultation among Mr. Froom's counsel and that it was anticipated that the opportunity for similar interaction and consultation would be afforded between the conclusion of the respondent's argument and the reply.
[11] Reluctant to delay the matter, but at the same time concerned that I not prejudice the applicant in any way, I proposed that the matter continue as scheduled, that the remaining arguments be transcribed, that the reply be given and that the transcript be prepared on an expedited basis. The transcript would be available to the applicant's incapacitated counsel by September 8th. Upon review of the arguments, it would be open to that counsel to submit any reply (within the parameters of proper reply content) that had not been, but in counsel's view should have been, canvassed in the reply. I proposed that the incapacitated counsel be granted until September 17th to provide his augmented reply, if any, in written form.
[12] Neither Mr. Froom's counsel (who were present) nor the respondent's counsel took exception to my proposed solution. It should be noted, however, that Mr. Froom was not present during this discussion and while his counsel took no exception, he noted that his position was subject to any objections Mr. Froom might have. Mr. Froom arrived shortly thereafter and the matter proceeded without further delay. No objections were made.
[13] Counsel's submissions and authorities in support were received on September 17th. Those submissions extend well beyond what constitutes appropriate and proper reply and in some instances canvass issues that were not raised either in the applicant's argument or that of the respondent. To the extent that the September 17th submissions take such liberties, they will not be considered. Counsel for the respondent forwarded an additional brief submission on October 2, 2003, for the purpose of alerting me to and providing me with a copy of a decision of Justice Hoilett of the Ontario Superior Court of Justice dated September 26, 2003. On October 7th, Mr. Froom's counsel responded, in writing, to the respondent's submission.
ISSUE
[14] The issue, leaving aside for the moment the various grounds for judicial review argued by the applicant, is whether or not the court should decline jurisdiction and refuse to exercise its discretion to hear the application for judicial review of the ATP. The issue is delineated in this manner because the respondent, at the hearing, conceded that "Section 18.1 of the Federal Court Act makes it impossible to argue that the decision of the Minister is not a decision within the meaning of the section" or that the court lacks jurisdiction to review it. Thus, if I decline jurisdiction, that will end the matter. However, should I conclude otherwise, the applicant's grounds for review must be examined.
OVERVIEW OF THE POSITIONS OF THE PARTIES
[15] Mr. Froom notes that this is a case of first impression and that no authority exists regarding judicial review of the ATP by the Federal Court. It is beyond dispute that the Act does not oust the jurisdiction of the Federal Court in relation to section 15 of the Act: Froom No. 2. He argues that the decision to issue the ATP should not be treated any differently from any other decision made by any other Minister. Most importantly, it is urged that I should assume jurisdiction because there is nowhere else to go. The law is clear - the extradition judge lacks jurisdiction to quash an ATP.
[16] The respondent agrees that Mr. Froom cannot obtain an order to quash the ATP from the extradition judge, but asks that I look beyond the manner in which Mr. Froom characterizes the issue (inability to quash the ATP) and examine the grounds upon which he relies in support of his request. If the grounds can be argued and determined elsewhere, within the provisions of the Act and without resort to section 18.1 of the Federal Courts Act, R.S.C. 1970 (2nd Supp.), c. 10, as amended, then an adequate alternative remedy exists and I should, in that case, decline to exercise my discretion. Alternatively, the respondent contends that the Minister's decision is an interlocutory one and, as such, is not amenable to judicial review.
STATUTORY SCHEME AND JURISPRUDENCE
[17] The relevant statutory provisions are attached to these reasons as Schedule A. The relevant articles of the extradition agreement between Canada and the United States are attached as Schedule B. Because subsection 3(1) and section 15 of the Act are of particular significance they are, for ease of reference, reproduced here. Subsection 3(3) is omitted because it does not apply to Mr. Froom.
Extradition Act,
S.C. 1999, c. 18
3. (1) A person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner for the purpose of prosecuting the person or imposing a sentence on - or enforcing a sentence imposed on - the person if
(a) subject to a relevant extradition agreement, the offence in respect of which the extradition is requested is punishable by the extradition partner, by imprisoning or otherwise depriving the person of their liberty for a maximum term of two years or more, or by a more severe punishment; and
(b) the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada,
(i) in the case of a request based on a specific agreement, by imprisonment for a maximum term of five years or more, or by a more severe punishment, and
(ii) in any other case, by imprisonment for a maximum term of two years or more, or by a more severe punishment, subject to a relevant extradition agreement.
Loi sur l'extradition,
L.C. 1999, ch. 18
3. (1) Toute personne peut être extradée du Canada, en conformité avec la présente loi et tout accord applicable, à la demande d'un partenaire pour subir son procès dans le ressort de celui-ci, se faire infliger une peine ou y purger une peine si_:
a) d'une part, l'infraction mentionnée dans la demande est, aux termes du droit applicable par le partenaire, sanctionnée, sous réserve de l'accord applicable, par une peine d'emprisonnement ou une autre forme de privation de liberté d'une durée maximale de deux ans ou plus ou par une peine plus sévère;
b) d'autre part, l'ensemble de ses actes aurait constitué, s'ils avaient été commis au Canada, une infraction sanctionnée aux termes du droit canadien_:
(i) dans le cas où un accord spécifique est applicable, par une peine d'emprisonnement maximale de cinq ans ou plus ou par une peine plus sévère,
(ii) dans le cas contraire, sous réserve de l'accord applicable, par une peine d'emprisonnement maximale de deux ans ou plus ou par une peine plus sévère.
15. (1) The Minister may, after receiving a request for extradition and being satisfied that the conditions set out in paragraph 3(1)(a) and subsection 3(3) are met in respect of one or more offences mentioned in the request, issue an authority to proceed that authorizes the Attorney General to seek, on behalf of the extradition partner, an order of a court for the committal of the person under section 29.
15. (1) Le ministre peut, après réception de la demande d'extradition, s'il est convaincu qu'au moins une infraction satisfait aux conditions prévues à l'alinéa 3(1)a) et au paragraphe 3(3), prendre un arrêté introductif d'instance autorisant le procureur général à demander au tribunal, au nom du partenaire, la délivrance de l'ordonnance d'incarcération prévue à l'article 29.
(2) If requests from two or more extradition partners are received by the Minister for the extradition of a person, the Minister shall determine the order in which the requests will be authorized to proceed.
(2) En cas de demandes concurrentes visant l'extradition d'une même personne, le ministre détermine l'ordre dans lequel elles seront traitées.
3) The authority to proceed must contain
(a) the name or description of the person whose extradition is sought;
(b) the name of the extradition partner; and
(c) the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person or the conduct in respect of which the person was convicted, as long as one of the offences would be punishable in accordance with paragraph 3(1)(b).
(3) L'arrêté comporte les éléments suivants_:
a) le nom ou description de l'intéressé;
b) le nom du partenaire;
c) la désignation des infractions qui, du point de vue du droit canadien, correspondent à l'ensemble des actes reprochés à l'intéressé ou pour lesquels il a été condamné et dont au moins l'une d'entre elles serait sanctionnée de la façon prévue à l'alinéa 3(1)b).
(4) A copy of an authority to proceed produced by a means of telecommunication that produces a writing has the same probative force as the original for the purposes of this Part.
(4) La copie de l'arrêté reproduite par un moyen de télécommunication qui rend la communication sous forme écrite a, pour l'application de la présente partie, la même force probante que l'original.
[18] Before considering the submissions and arguments of the parties in more detail, it is helpful to review the historical as well as the present statutory scheme and the fundamental principles arising from the jurisprudence in relation to extradition matters.
[19] Extradition is the surrender by one state, at the request of another, of a person within its jurisdiction who is accused or has been convicted of a crime committed within the jurisdiction of the other state: Anne Warner LaForest, LaForest's Extradition To And From Canada, 3rd ed. (Aurora, Canada Law Book, 1991). It is primarily a function of the executive and a product of international agreements made between states: R. v. Schmidt, [1987] 1 S.C.R. 500 (Schmidt). It is a practice that has deep historical roots in Canada and has been a necessary component of the administration of justice since before Confederation. Extradition procedure is founded on the concepts of reciprocity, comity and respect for differences in other jurisdictions: Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 (Kindler).
[20] An overview of the extradition process (including the 1992 amendments) is provided in United States of America v. Kwok, [2001] 1 S.C.R. 532 (Kwok). The summary that follows, with the exception of the passages that deal with the 1999 Act, is derived principally from Kwok and includes the authorities referred to by Madam Justice Arbour.
[21] In Canada, the Act governs the extradition process and codifies into domestic law Canada's international obligations regarding surrender. The first phase is judicial in nature while the second is essentially an executive phase. During the judicial phase, the extradition judge (also referred to as the committal judge) presides over an extradition hearing for the purpose of determining whether there is sufficient evidence to order the individual committed for surrender. For a warrant of committal to issue, two criteria must be met. First, the evidence presented must disclose a prima facie case that the conduct alleged to have occurred within the jurisdiction of the requesting states constitutes a crime there, would constitute a crime in Canada if committed here and is contemplated in the bilateral treaty (the double criminality rule). Second, the tendered evidence must, on a balance of probabilities, establish that the person sought to be extradited is the person before the court (the identity issue).
[22] In an extradition (committal) hearing, the extradition judge is akin to a judge conducting a preliminary inquiry in that he or she has to determine the sufficiency of evidence. Like a preliminary inquiry judge, the extradition judge has to refrain from weighing the evidence or assessing credibility: United States of America v. Shepard, [1977] 2 S.C.R. 1067 (Shepard). The extradition judge cannot consider how foreign officials gathered the evidence, weigh the effect of any delay on the trial in the requesting state, or consider defences that could be raised at trial: Argentina v. Mellino, [1987] 1 S.C.R. 536 (Mellino). The extradition judge's statutory functions are modest and limited: Schmidt; McVey v. United States of America, [1992] 3 S.C.R. 475 (McVey); United States of America v. Lépine, [1994] 1 S.C.R. 286 (Lépine).
[23] Before the 1992 amendments, the Charter applied to extradition proceedings in the sense that the treaty, the extradition hearing in Canada, and the exercise of the executive discretion to surrender the individual all had to conform to the requirements of the Charter. The extradition judge, however, did not have the power to adjudicate on Charter issues or to grant Charter remedies.
[24] If the extradition judge determined that there was sufficient evidence to commit, he or she signed a warrant or order for committal and it was forwarded to the Minister of Justice along with the judge's report. The second stage of the process then began and during that stage, the Minister decided whether the individual should be surrendered to the requesting state. This phase of the process has been considered to be essentially political in nature: McVey; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631 (Idziak).
[25] These phases were additionally considered to be distinct and separate. The extradition judge could not order the actual surrender of the individual to the foreign state because that was the exclusive responsibility of the executive. Conversely, the Minister could not exercise the power to surrender an individual until that person had been committed by the judge. In the exercise of the executive discretion to surrender, the Minister of Justice must have regard to Charter considerations: United States of America v. Cotroni, [1989] 1 S.C.R. 1469 (Cotroni).
[26] Before the 1992 amendments, the Act provided for review of the committal decision by way of habeas corpus. Jurisdiction to issue a writ of habeas corpus lay with a superior court judge sitting on habeas corpus review of the extradition judge's decision to commit. In determining the legality of the fugitive's detention and/or committal, the habeas corpus judge had a limited jurisdiction to consider specific Charter violations and to grant remedies under section 24 of the Charter. This power could not be used to pre-empt the ministerial decision regarding surrender, although there did exist an exceptional power, under section 7 of the Charter, to stay extradition proceedings in circumstances where the decision to surrender an individual for trial in a foreign country would, in the particular circumstances, violate the principles of fundamental justice: Mellino.
[27] Barring obvious or urgent circumstances, a decision to stay the extradition process was only open to a judge of the Federal Court Trial Division sitting in review of the Minister's decision to surrender the individual pursuant to the Federal Court Act [now the Federal Courts Act]. The need to await the exercise of executive discretion was stressed in Schmidt.
[28] Thus, before the 1992 amendments, both the committal proceedings and judicial review of them were curtailed by the existence of the second, executive stage of the extradition process. The latter had to be allowed to follow its course. The dual track of judicial and executive decision-making, each accompanied by its own review process, was cumbersome and time-consuming. An appeal from the habeas corpus review of the committal decision could be taken as of right to the provincial court of appeal and, with leave, to the Supreme Court. The separate ministerial decision concerning surrender, if judicially reviewed in the Federal Court, was subject to further potential appeals to the Federal Court of Appeal and, with leave, to the Supreme Court.
[29] On December 1, 1992, significant amendments to the Act came into force. Parliament streamlined and simplified the extradition procedure. The amendments provided for a single right of review to the applicable provincial court from both the decision of the extradition judge and that of the Minister. The provincial court of appeal received "exclusive original jurisdiction" to review the judicial decision to commit and the executive decision to surrender.
[30] The amendments also permitted a possible merger of those functions by expressly allowing the court to defer the hearing of an appeal from a committal decision until the Minister's decision with respect to surrender was made, unless the Minister filed a notice of postponement with the court of appeal. In that case, the court of appeal would proceed with the appeal from committal rather than await the ministerial decision on surrender.
[31] Recourse to the writ of habeas corpus to review the committal was eliminated. The powers of the committal judge were expanded to include all the powers that could previously be exercised only by a superior court judge sitting in habeas corpus. Hence, there was a transfer of Charter jurisdiction to grant remedies related to an issue properly before the extradition judge. As stated, the provincial appellate court was granted exclusive jurisdiction regarding judicial review of the Minister's decision to surrender. The 1992 amendments were not, however, meant to alter the fundamental two-tiered structure of the Act. Both the extradition judge and the Minister maintained their separate functions and jurisdictions within the process.
[32] A new Act came into force on June 17, 1999. Significant changes were made. The rationale underlying the 1999 Act is discussed in United States of America et al. v. Yang (2001), 56 O.R. 52 (C.A.) (Yang). Mr. Justice Rosenberg, writing for the court, notes that Canada wished to modernize its extradition process. The process, as it existed, did not easily accommodate modern offences and the increasingly global nature of crime itself. Of particular concern was the difficulty encountered when a requesting state with a different legal system from that of the requested state had to comply with the evidentiary requirements of the requested state. Bilateral negotiations ensued and during this time, the growth in transnational crime sparked worldwide initiatives to modernize extradition - to make it simpler and more expeditious. Another important consideration for Canada was its obligation to cooperate with the United Nations Tribunals that oversee trials of war crimes and crimes against humanity.
[33] The 1999 Act contains: the rule of double criminality (section 3); time limits on proceedings against a person arrested on a provisional warrant (sections 14, 21); the right to apply for bail (sections 19, 20); the right of the Minister to seek assurances from the extradition partner (section 40); the right to attach conditions that individuals not be prosecuted for other offences - the rule of speciality (section 40); prohibition against surrender for political crimes, certain military crimes and offences barred by a limitation period (section 46); and the right of the Minister to refuse surrender in cases concerning, among other things, autrefois acquit or convict, persons convicted in their absence and having no right to have the case reviewed and young persons where the procedure in the extradition partner is inconsistent with the fundamental principles governing the Canadian legislation. The Act maintained the 1992 provisions for appealing the committal (section 49) and reviewing the decision of the Minister to surrender (section 53): Yang.
[34] The rules of evidence in the new Act are found at sections 31 through 37. Section 32 provides that evidence, not otherwise admissible under Canadian law, is admissible at the extradition hearing and can be used to make out the case for committal under section 29. The contents of the record of the case are described in section 33. The record of the case need only contain a summary of the evidence. A judicial or prosecuting authority must certify that the evidence summarized or contained in the record of the case is available for the trial and that the evidence is sufficient under the law of the extradition partner to justify prosecution or was gathered under the law of the extradition partner. A document is admissible whether or not it is solemnly affirmed or under oath. Thus, various types of evidence that would not be admissible at a Canadian trial are admissible at the extradition hearing. In particular, hearsay is admissible although it would not meet a common law or statutory exception and would not meet the necessity and reliability requirements set out in the more recent cases of the Supreme Court: Ibid.
[35] The ATP was introduced in the 1999 Act. The ATP is defined by section 15 and its contents are prescribed. To issue the ATP, the Minister must be satisfied that the conditions set out in paragraph 3(1)(a) and subsection 3(3) have been met. The authority to proceed sets out the Canadian offence that is equivalent to the offence allegedly committed in the extradition partner state. This represents a departure from previous practice. Before 1999, the proceeding was commenced by way of diplomatic note. The note specified the offences for which extradition was sought in the requesting state. The translation to comparable Canadian offences was done by the extradition judge during the committal hearing. Equivalency is now determined by the Minister. I will discuss the ATP, in more detail, later in these reasons.
[36] The previously discrete two-tiered system of the extradition process was not altered with the coming into force of the 1999 Act. Although variously described as consisting of two, three or four stages, there remains a function for the Minister and a function for the extradition judge. In Federal Republic of Germany v. Schreiber, [2000] O.J. No. 2618 (Schreiber), Mr. Justice Watt of the Ontario Superior Court of Justice describes the functions as follows:
Under the Act, the Minister and the extradition judge occupy two (2) very different solitudes. The Minister has a role at the beginning and the end of the extradition process. The judge discharges his or her function in the middle. Each operates independently of the other, except to the extent that the Minister's final involvement is contingent on a judicial order for committal. Neither intrudes into the other's area of responsibility. Neither reviews the other's determination or decision.
ADEQUATE ALTERNATIVE REMEDY
The Respondent
[37] The respondent argues that Mr. Froom's application is nothing other than an attempt to avoid going through the extradition process. The "quashing of the ATP" per se is not the only remedy available. It is submitted that there are many remedies available to Mr. Froom and all are contained, in one form or another, within the Act. I am urged to have regard to the entire extradition process and conclude that the judicial phase of that process lies exclusively with the provincial courts.
[38] The respondent relies on the various Supreme Court decisions that categorize extradition as an executive function involving political decisions made in furtherance of Canada's international obligations. Although intended to be an expedited process, it incorporates procedural safeguards for those whose extradition is sought. The procedural safeguards are contained in the Act and the Act constitutes a complete code in this regard. The argument is that extradition matters historically have been, and should continue to be, left to the superior courts of the provinces where there is expertise in the area. While the Federal Court has expertise in relation to judicial review of decisions, it lacks expertise in this subject matter.
[39] The respondent relies heavily on Reza v. Canada, [1994] 2 S.C.R. 394 (Reza) and Fast v. Canada (2001), 288 N.R. 8 (F.C.A.) (Fast). In Reza, the respondent Minister of Employment and Immigration sought to stay Reza's application in the Ontario Court (General Division) seeking declarations and injunctive relief in relation to the Immigration Act, R.S.C. 1985, c. 28. The Minister was successful and the trial court, after concluding that it had jurisdiction to grant the relief, declined to do so, on the basis that the review of immigration matters should be left with the Federal Court of Canada. The Ontario Court of Appeal (Madam Justice Abella dissenting) reversed the trial judge, holding that the issue was a constitutional one, jurisdiction was concurrent and the choice of court should lie with the applicant. The Supreme Court concluded that the trial judge had properly exercised his discretion on the basis that Parliament had created a comprehensive scheme of review of immigration matters, the Federal Court was an effective and appropriate forum and there was, therefore, no reason to interfere with the exercise of the trial judge's discretion.
[40] In Fast, the respondent Minister of Citizenship and Immigration applied to strike the application for judicial review of the Minister's notice of proposed revocation of citizenship. Mr. Justice Lemieux concluded that judicial review was not available. He determined that section 18.5 of the Federal Court Act barred the application. The Federal Court of Appeal dismissed the appeal, substantially agreeing with the decision of Mr. Justice Lemieux. The court added that even if section 18.5 had not applied, the court could have exercised its discretion to refuse the judicial review application on the basis that the reference procedure contemplated by section 18 of the Citizenship Act, R.S.C. 1985, c. C-29 with respect to revocation of citizenship was an adequate alternative remedy.
[41] Relying on a number of authorities, the respondent contends that the applicant's challenges, in substance, deal with the sufficiency or nature of the evidence relied on by the United States in relation to the alleged offence; matters relative to American law; non-compliance with the treaty; and, non-compliance with the Act. Some of these matters have been definitely determined by the Supreme Court and the remainder can be dealt with by the extradition judge, the Minister, the provincial appellate court (in this case the Ontario Court of Appeal) or, if Mr. Froom is surrendered, by the trial court in the United States. Thus, there exists an adequate alternative remedy and I should decline to exercise my discretion to grant judicial review.
The Applicant
[42] Mr. Froom says the opposite. He submits that Schreiber is unequivocal - the extradition judge is obliged to accept the statement of the Minister that the alleged conduct corresponds to the named Canadian offences. The provincial appellate court is similarly restricted: United States of America v. Kucan (2001) O.A.C. 131 (Kucan). It is argued that this initial decision of the Minister, described by Mr. Justice Gibson in Froom 2 as the second phase in the process, is reviewable only by the Federal Court pursuant to section 18.1 of the Federal Courts Act because there is no jurisdiction for review elsewhere. The provincial appellate court can hear an appeal of a committal order, but the subject matter will not include the Minister's decision to issue an ATP because the extradition judge is obliged to accept it.
[43] Mr. Froom acknowledges that under section 43(1) of the Act, he may make submissions to the Minister on "any" ground, but only with respect to the decision to surrender. The provincial appellate court can entertain an application for judicial review of the Minister's surrender decision, but will be restricted to the record upon which the decision was made. The decision to issue the ATP will not be part of that record.
[44] The Reza and Fast decisions are distinguishable, says Mr. Froom. In Reza, there was concurrent jurisdiction but the Ontario court, recognizing the Federal Court's expertise in immigration matters, deferred to it. The extradition judge's expertise is with respect to the sufficiency of evidence and committal; jurisdiction does not extend beyond those areas. In Fast, all issues raised in the judicial review proceeding could be raised during the revocation reference hearing. That is distinct from this situation where issues of delegation and abuse of process cannot be determined in the context of the ATP.
[45] Last, Mr. Froom contends that this Act is new and section 15 is a new provision with a new role for the Minister. Although the Federal Court's jurisdiction with respect to judicial review of section 40 (surrender) decisions has been ousted by subsection 57(1), that is not so for section 15 (ATP) decisions. The only mechanism available for judicial review of the latter is pursuant to section 18.1 of the Federal Courts Act.
Analysis
[46] Mr. Froom's extradition is sought by the United States of America pursuant to the provisions of the Extradition Act and the treaty between Canada and the United States. The Minister of Justice (section 2) is responsible for the implementation of extradition agreements, the administration of the Act, and dealing with requests for extradition (section 7). The ATP is the document whereby the Minister of Justice authorizes the Attorney General of Canada, on behalf of the requesting state, to seek a committal order under section 29. The ATP is a condition precedent and without it there can be no committal hearing.
[47] In exercising his statutory authority to administer the act and to engage his statutory discretion to issue an ATP under subsection 15(1), the Minister must receive a request for extradition and be satisfied that the requirements of paragraph 3(1)(a) and subsection 3(3) of the Act have been met with respect to at least one of the offences mentioned in the request. Paragraph 3(1)(a) deals with extradictable conduct. It does so by making reference to the punishment provided for the offence in the jurisdiction of the extradition partner. The section also refers to the purpose of the request of the extradition partner. It may be for any one of three purposes: prosecuting the person; imposing a sentence on the person; or enforcing a sentence earlier imposed on the person in the requesting state for an offence described in paragraph 3(1)(a). It is inevitable that the Minister will be obliged to consider the purpose of the extradition request in determining whether the requirements of paragraph 3(1)(a) have been met: Schreiber.
[48] In relation to Mr. Froom, because paragraph 3(1)(a) is subject to a relevant extradition agreement, "punishment'" is determined by reference to Article 2 of the treaty where the alleged offence is 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".
[49] The contents of the ATP are prescribed in subsection 15(3). Because of paragraph 15(3)(c), the Minister must specify in the ATP the Canadian offence that corresponds to the conduct for which the person is sought. The combined effect of sections 15 and 29 is to implement the double criminality requirement. The authority to proceed sets out the Canadian offence that is equivalent to the offence allegedly committed in the extradition partner state. The extradition judge is therefore not concerned with foreign law. The judge's task is merely to determine whether there is evidence of conduct that would amount to the