United States of America v. Ferras; United States of America v. Latty

United States of America v. Ferras; United States of America v. Latty
Collection
Supreme Court Judgments
Date
2006-07-21
Neutral citation
2006 SCC 33
Report
[2006] 2 SCR 77
Case number
30211, 30295
Judges
McLachlin, Beverley; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 30295, 30211
Decision Content
SUPREME COURT OF CANADA
Citation: United States of America v. Ferras; United States of America v. Latty, [2006] 2 S.C.R. 77, 2006 SCC 33
Date: 20060721
Docket: 30211, 30295
Between:
Shane Tyrone Ferras
Appellant
and
United States of America, Her Majesty the Queen
and Irwin Cotler, Minister of Justice
Respondents
and between:
Leroy Latty and Lynval Wright
Appellants
and
United States of America, Minister of Justice and
Attorney General of Canada
Respondents
Coram: McLachlin C.J. and Major,* Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
Reasons for Judgment:
(paras. 1 to 94)
McLachlin C.J. (Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ. concurring)
* Major J. took no part in the judgment.
______________________________
United States of America v. Ferras; United States of America v. Latty, [2006] 2 S.C.R. 77, 2006 SCC 33
Shane Tyrone Ferras Appellant
v.
United States of America, Her Majesty The Queen
and Irwin Cotler, Minister of Justice Respondents
- and -
Leroy Latty and Lynval Wright Appellants
v.
United States of America, Minister of Justice and
Attorney General of Canada Respondents
Indexed as: United States of America v. Ferras; United States of America v. Latty
Neutral citation: 2006 SCC 33.
File Nos.: 30211, 30295.
2005: October 17; 2006: July 21.
Present: McLachlin C.J. and Major,* Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Liberty and security of person — Fundamental justice — Extradition — Committal hearings — Whether provisions of extradition legislation relating to evidence at committal hearing infringe principles of fundamental justice applicable to extradition — Canadian Charter of Rights and Freedoms, s. 7 — Extradition Act, S.C. 1999, c. 18, ss. 29(1) , 32(1) (a), (b), 33 .
Extradition — Committal hearings — Evidence — Powers of extradition judge — Whether extradition judge can weigh evidence and refuse to extradite if evidence unreliable or unavailable for trial — Sufficiency of evidence for extradition purposes — Canadian Charter of Rights and Freedoms, s. 7 — Extradition Act, S.C. 1999, c. 18, s. 29(1) .
Constitutional law — Charter of Rights — Mobility — Right to remain in Canada — Extradition — Whether provisions of extradition legislation relating to evidence at committal hearing infringe right of Canadian citizens to remain in Canada — Canadian Charter of Rights and Freedoms, s. 6 — Extradition Act, S.C. 1999, c. 18, ss. 32(1) (a), 33(3) .
Constitutional law — Charter of Rights — Fundamental justice — Extradition — Whether surrender of accused to US, where they could receive sentences of 10 years to life without parole if convicted, “shocks conscience” of Canadians — Whether Minister of Justice’s refusal to seek assurances for enhanced credit for time served in pre‑trial custody offends fundamental justice — Canadian Charter of Rights and Freedoms, s. 7 .
The US sought the extradition of the accused under the “record of the case” method provided for in ss. 32(1) (a) and 33 of the Extradition Act . The records of the case submitted at their committal hearings consist of unsworn statements from law enforcement agents summarizing the evidence expected to be presented at each trial. The US certified that the evidence is available for trial and is sufficient to justify prosecution under the law of the US. The accused alleged that ss. 32(1) (a) and 33 infringe s. 7 of the Canadian Charter of Rights and Freedoms because they allow for the possibility that a person might be extradited on inherently unreliable evidence. In both cases, the extradition judges rejected the constitutional objection and committed the accused for extradition. The Court of Appeal upheld the decisions.
Held: The appeals should be dismissed and the accused should be committed to extradition.
The provisions of the Extradition Act governing the admission of evidence at a committal hearing are consistent with the guarantee in s. 7 of the Charter that no one may be deprived of liberty except in accordance with the principles of fundamental justice. Section 7 does not guarantee a particular type of process for all situations where a person’s liberty is affected; it guarantees a fair process, having regard to the nature of the proceedings. The principles of fundamental justice applicable to an extradition hearing require that the person sought for extradition receive a meaningful judicial determination of whether the case for extradition prescribed in s. 29(1) of the Act has been established — that is, whether there is sufficient evidence to permit a properly instructed jury to convict. This requires a meaningful judicial hearing before an independent, impartial judge and a judicial decision based on an assessment of the evidence and the law. A person cannot be extradited upon demand, suspicion or surmise. Here, the Extradition Act offers two protections to the person whose liberty is at risk: first, admissibility provisions aimed at establishing threshold reliability; and second, a requirement that the judge determine the sufficiency of the evidence to establish the legal requirement for extradition. These dual protections, considered together, offer a fair process that conforms to the fundamental principles of justice. [1] [14] [17] [26] [34]
Under s. 29(1), the extradition judge is required to determine what evidence is admissible under the Act, and whether the admissible evidence is sufficient to justify committal. The inquiry into admissibility of the evidence depends on the nature of the evidence. Under the record of the case method, the inquiry is whether the certification requirements of the Act have been met. Under the treaty method, the inquiry is whether the evidence meets the requirements of the relevant extradition treaty. The inquiry into the sufficiency of the evidence involves an evaluation of whether the conduct described by the admissible evidence would justify committal for trial in Canada. While pre‑Charter jurisprudence held that an extradition judge may not refuse to order extradition where there is some evidence of every element of the parallel Canadian crime, even if the judge believes that the evidence from the foreign state is unreliable or otherwise inadequate, a fair extradition hearing that accords with the Charter requires that the extradition judge must be able to decline to commit on evidence that is unavailable for trial or manifestly unreliable. Section 29(1) can be interpreted in such a way that the extradition judge may provide the factual assessment and judicial process necessary to conform to the Charter . Section 29(1) requires the extradition judge to assess whether the admissible evidence shows the justice or rightness of committing a person to extradition. The evidence must be demonstrably able to be used by a reasonable, properly instructed jury to reach a verdict of guilty such that a case could go to trial in Canada. Because the requirements for committal of s. 29(1) grant the extradition judge a discretion to refuse to extradite on insufficient evidence, such as where the reliability of evidence is successfully impeached or where it is not shown that the evidence is available for trial, ss. 32(1) (a) and (b) and 33 of the Extradition Act do not violate s. 7 of the Charter . [36‑46] [49‑50]
Due to the principles of comity between Canada and the requesting state, certification under the record of the case method raises a presumption that the evidence is reliable. Pursuant to s. 32(1) (c), the person sought for extradition may challenge the sufficiency of the case. An extradition judge must look at the whole of the evidence and, if it fails to disclose a case on which a jury could convict or it is so defective that it would be dangerous or unsafe to convict, the test for committal is not met. Under the treaty method, showing that the evidence actually exists and is available for trial is fundamental to extradition. The judge cannot commit for extradition under s. 29(1) unless a prima facie case has been made out that evidence exists upon which the person may be tried. Accordingly, where, as in the companion appeals of Ortega and Fiessel, the requesting state does not certify or otherwise make out a prima facie case that the evidence is available for trial, the case for committal is incomplete and should be dismissed. If the evidence is certified as available, that certification results in a presumption of availability for trial, and the person sought for extradition could challenge the presumption. Lastly, since the extradition judge has the discretion to give no weight to unavailable or unreliable evidence when determining whether committal is justified under s. 29(1), the person sought for extradition need not seek a remedy under s. 24(2) of the Charter . However, evidence may be excluded under s. 24(2) for reasons other than the availability and reliability concerns addressed by s. 29(1) . [52-60]
The accused were properly committed for extradition. The records submitted by the US against the accused contained sufficient admissible evidence that a reasonable jury, properly instructed, could convict had the conduct occurred in Canada. The certifications by the US in compliance with s. 33(3) make the records presumptively reliable and no evidence discloses any reason to rebut the presumption of reliability. With respect to the surrender to the US, the possibility that two of the accused would receive sentences of 10 years to life without parole in the US does not shock the conscience of Canadians, nor does the Minister of Justice’s refusal to seek assurances concerning enhanced credit for pre‑sentence custody. [69-70] [75-79] [87] [90]
Section 6(1) of the Charter is not engaged at the committal stage of the extradition process, only at the surrender stage. Since the Minister is not required to base a surrender decision on evidence submitted at the committal hearing, s. 6(1) cannot be infringed by ss. 32(1)(a) and 33(3) of the Act. [82‑83]
Cases Cited
Modified: United States of America v. Shephard, [1977] 2 S.C.R. 1067; referred to: United Mexican States v. Ortega, [2006] 2 S.C.R. 120, 2006 SCC 34, rev’g (2005), 253 D.L.R. (4th) 237, 2005 BCCA 270; United States of America v. Yang (2001), 56 O.R. (3d) 52; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; R. v. Rodgers, [2006] 1 S.C.R. 554, 2006 SCC 15; Canada v. Schmidt, [1987] 1 S.C.R. 500; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; Glucksman v. Henkel, 221 U.S. 508 (1911); Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, 2004 SCC 42; Bonham’s Case (1610), 8 Co. Rep. 113b, 77 E.R. 646; Valente v. The Queen, [1985] 2 S.C.R. 673; Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, 2003 SCC 45; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; McVey (Re), [1992] 3 S.C.R. 475; R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54; United States of America v. Cobb, [2001] 1 S.C.R. 587, 2001 SCC 19; United States of America v. Kwok, [2001] 1 S.C.R. 532, 2001 SCC 18; United States of America v. Shulman, [2001] 1 S.C.R. 616, 2001 SCC 21; Perka v. The Queen, [1984] 2 S.C.R. 232; R. v. L. (D.O.), [1993] 4 S.C.R. 419; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7; R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18; United States of America v. Adam (2003), 174 C.C.C. (3d) 445.
Statutes and Regulations Cited
18 U.S.C. § 3585(b).
Canadian Charter of Rights and Freedoms, ss. 1 , 6 , 7 , 24 .
Constitution Act, 1982, s. 52 .
Extradition Act, R.S.C. 1985, c. E‑23, s. 13.
Extradition Act, S.C. 1999, c. 18, ss. 24(2) , 29(1) , 32 , 33 .
Magna Carta (1215), clause 39.
Treaties and Other International Instruments
Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3, art. 10.
Second Protocol amending the Treaty on Extradition between the Government of Canada and the Government of the United States of America, Can. T.S. 2003 No. 11.
Treaty of Extradition between the Government of Canada and the Government of the United Mexican States, Can. T.S. 1990 No. 35, art. VIII.
Authors Cited
Botting, Gary. Extradition Between Canada and the United States. Ardsley, N.Y.: Transnational, 2005.
Concise Oxford Dictionary of Current English, 9th ed. Oxford: Clarendon Press, 1995, “justify”.
La Forest, Anne Warner. “The Balance Between Liberty and Comity in the Evidentiary Requirements Applicable to Extradition Proceedings” (2002), 28 Queen’s L.J. 95.
APPEAL from a judgment of the Ontario Court of Appeal (Feldman and Sharpe JJ.A. and McCombs J. (ad hoc)) (2004), 237 D.L.R. (4th) 645, 184 O.A.C. 306, 183 C.C.C. (3d) 119, 117 C.R.R. (2d) 183, [2004] O.J. No. 1089 (QL), affirming an order of committal and an order of surrender. Appeal dismissed.
APPEAL from a judgment of the Ontario Court of Appeal (Feldman and Sharpe JJ.A. and McCombs J. (ad hoc)) (2004), 237 D.L.R. (4th) 652, 185 O.A.C. 1, 183 C.C.C. (3d) 126, 116 C.R.R. (2d) 368, [2004] O.J. No. 1076 (QL), affirming an order of committal and an order of surrender. Appeal dismissed.
Brian H. Greenspan, for the appellant Ferras.
Edward L. Greenspan, Q.C., and Vanessa V. Christie, for the appellants Latty and Wright.
Robert J. Frater and Janet Henchey, for the respondents.
The judgment of the Court was delivered by
The Chief Justice —
1. Introduction
1 These appeals (the “Ferras appeals”), together with the appeals by Ortega, Shull, Shull and Fiessel (United Mexican States v. Ortega, [2006] 2 S.C.R. 120, 2006 SCC 34 (the “Ortega appeals”)), raise the question of whether the provisions of the Extradition Act, S.C. 1999, c. 18 , for the admission of evidence on a hearing for committal for extradition violate the guarantee in s. 7 of the Canadian Charter of Rights and Freedoms that no one may be deprived of liberty except in accordance with the principles of fundamental justice. I conclude that, properly construed, the provisions of the Act are constitutional and that these appeals should be dismissed.
2 The appellants in the Ferras appeals have been ordered extradited to the United States to face charges relating to either alleged frauds (Ferras) or trafficking in cocaine (Latty and Wright). The extradition proceedings against them were brought by the “record of the case” method under ss. 32(1) (a) and 33 of the Extradition Act . The appellants in the Ortega appeals, by contrast, were ordered extradited for alleged fraud offences under the “treaty” method provided for in s. 32(1)(b) of the Act, Ortega to Mexico and the Shulls and Fiessel to the United States.
3 The appellants in the Ferras appeals argue that the record of the case method does not pass constitutional muster because it allows for the possibility that a person might be extradited on inherently unreliable evidence. More specifically, they argue that the “safeguards” in s. 33 of the Act are inadequate to ensure threshold reliability of evidence in accordance with the principles of fundamental justice as stipulated by s. 7 of the Charter .
4 The appellants in the Ortega appeals argue that the treaty method does not pass constitutional muster because it does not contain even the safeguards of the “record of the case” method, in particular a requirement that the requesting state certify that the evidence is available for trial.
5 In the Ferras appeals, the extradition judges and the Ontario Court of Appeal ((2004), 237 D.L.R. (4th) 645 and (2004), 237 D.L.R. (4th) 652) rejected constitutional objections to ss. 32(1) (a), 32(1) (c) and 33 of the Extradition Act , relying on previous decisions, most notably United States of America v. Yang (2001), 56 O.R. (3d) 52 (C.A.). In the Ortega appeals, the extradition judge presiding over Ortega’s committal hearing accepted his constitutional objection to s. 32(1) (b) and Article VIII(1)(b)(iii) of the Treaty of Extradition between the Government of Canada and the Government of the United Mexican States, Can. T.S. 1990 No. 35 ((2004), 237 D.L.R. (4th) 281, 2004 BCSC 210). The extradition judge presiding over Fiessel and the Shulls’ committal hearings applied the decision in Ortega to exclude evidence submitted by the United States ([2004] B.C.J. No. 1434 (QL), 2004 BCSC 908). These decisions were reversed by the British Columbia Court of Appeal, Donald J.A. dissenting ((2005), 253 D.L.R. (4th) 237, 2005 BCCA 270). The appellants in both sets of cases have appealed to this Court, contending that the courts of appeal below erred in rejecting their constitutional challenges to ss. 32(1) (a), 32(1) (b) and 33 .
2. Analysis
2.1 The Issue
6 The Extradition Act (Appendix A) provides a two-stage process for extradition of a person to face charges in a foreign country. We are not here concerned with extradition to serve a foreign sentence.
7 At the first stage, an extradition judge must examine the request for extradition and supporting material to determine whether sufficient evidence exists to justify committal for trial in Canada. If the extradition judge finds that this test is met, the case moves to the second stage, where the Minister, in the exercise of his or her discretion, decides whether to order extradition (see Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631). The first stage is judicial, the second executive. These cases concern the first, the judicial, stage of the process.
8 Section 29(1) (a) of the Extradition Act provides that a “judge shall order the committal of the person into custody to await surrender if ... there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada”.
9 The extradition judge’s role and the test for committal have been described in a variety of ways, including a “prima facie” case, a “sufficient” case, a “good” case, an “adequate” case, a case providing “reasonable grounds” for extradition, and a case “justifying” extradition. But the basic premise has remained constant. A judge cannot order extradition unless there is evidence of conduct that would justify committal for trial in Canada. In United States of America v. Shephard, [1977] 2 S.C.R. 1067, this Court said the test for committal for extradition is the same as that employed by a trial judge in deciding whether to withdraw a case from the jury — “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty” (p. 1080). If such evidence is shown, the person sought can be extradited to face prosecution elsewhere. If not, the judge must refuse extradition.
10 The appellants acknowledge this fundamental safeguard. However, they argue that it is undermined by the Extradition Act ’s provisions for the admission of evidence on the record of the case and treaty methods, which in their view may require the extradition judge to order committal for extradition on the basis of unreliable or unavailable material. The appellants in the Ferras appeals emphasize the lack of guarantees of reliability in the record of the case method prescribed by s. 32(1) (a). The appellants in the Ortega appeals focus on the lack of an assurance that the evidence will be available for trial under the treaty method prescribed by s. 32(1)(b) of the Act.
11 The argument of the appellants may be summarized as follows. Section 7 of the Charter guarantees the “life, liberty and security of the person” of every individual, and the right not to be deprived of them “except in accordance with the principles of fundamental justice”. Extradition to face charges in another country constitutes a denial of liberty and security of the person. Therefore a person cannot be extradited except in accordance with the principles of fundamental justice. It is a fundamental principle of justice, they say, that judges must proceed on reliable and available evidence. They say the record of the case and treaty methods of adducing evidence before the extradition judge do not meet this requirement, and therefore violate s. 7 of the Charter . This violation, they argue, is not saved by s. 1 of the Charter because it is not “demonstrably justified in a free and democratic society”.
12 The Crown accepts that extradition constitutes a serious denial of liberty and security of the person. A person is taken from Canada and forcibly removed to another country to stand trial according to that other country’s rules. It follows that the principles of fundamental justice must be respected. The Crown takes issue, however, with the assertion that the principles of fundamental justice require that the extradition judge proceed on reliable evidence that is proven to be available for trial. The Crown also suggests that the claims of unreliability and unavailability are overblown and do not reflect the reality of extradition practice.
13 These arguments, at first glance, suggest that the basic issue that divides the parties is whether it is a principle of fundamental justice that only reliable evidence that is available for trial be placed before the extradition judge. However, the matter is more complex.
14 Section 7 of the Charter does not guarantee a particular type of process for all situations where a person’s liberty is affected: R. v. Rodgers, [2006] 1 S.C.R. 554, 2006 SCC 15, at para. 47. It guarantees a fair process, having regard to the nature of the proceedings at issue. It follows that the evidentiary provisions of the Extradition Act cannot be considered in isolation but must be viewed in the context of the provisions for extradition as a whole. It also follows that the rules of evidence applicable to a criminal trial in Canada do not necessarily apply to the extradition process.
15 Thus, the real issue is whether the provisions of the Extradition Act , for the admission of evidence, render the extradition process unfair when considered together with the other provisions of the Act and the nature of extradition proceedings. In other words, do these provisions raise a real risk that a person may be committed for extradition where the evidence does not establish conduct which, had it occurred in Canada, would justify committal for trial: s. 29(1) ?
2.2 Reliability: a Two-Stage Concern
16 This inquiry into the justification for committal raises two evidentiary concerns: the admissibility of evidence, and the evaluation of evidence to determine whether it establishes the case for committal. Theoretically, these are discrete steps, although in practice the extradition judge may consider them simultaneously. The theoretical distinction becomes important in this case because the appellants’ complaints are grounded in the admissibility of evidence, while the answer to their complaints is found in a judge’s assessment of the sufficiency of evidence to justify committal.
17 In short, the Extradition Act offers two protections to the person whose liberty is at risk: first, admissibility provisions aimed at establishing threshold reliability; and second, a requirement that the judge determine the sufficiency of the evidence to establish the legal requirement for extradition. The question is whether these dual protections, considered together, offer a fair process that conforms to the fundamental principles of justice.
18 This brings us to the main inquiry: what constitutes fair process in the extradition context? Or to put it another way, what are the principles of fundamental justice for extradition?
2.3 Fair Judicial Process in the Extradition Context
19 Extradition law requires that the “basic demands of justice” be observed: Canada v. Schmidt, [1987] 1 S.C.R. 500, at p. 523. The true principle that emerges from the history of extradition and the test for committal is that a person is not to be extradited without a fair process, having regard to the history, purposes and policies that underlie extradition: see Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, at p. 848. Fair process in this context means the requesting state must establish that there are reasonable grounds to conclude that the person sought may have committed the offence. As stated in Glucksman v. Henkel, 221 U.S. 508 (1911), at p. 512:
For while of course a man is not to be sent from the country merely upon demand or surmise, yet if there is presented, even in somewhat untechnical form according to our ideas, such reasonable ground to suppose him guilty as to make it proper that he should be tried, good faith to the demanding government requires his surrender.
Here we find the basic requirements of justice in the extradition context. A person cannot be sent from the country on mere demand or surmise. The case for extradition need not be presented in a particular technical form. But it must be shown that there are reasonable grounds to send the person to trial. A prima facie case for conviction must be established through a meaningful judicial process. It is an ancient and venerable principle that no person shall lose his or her liberty without due process according to the law, which must involve a meaningful judicial process. The idea is as old as the Magna Carta (1215), Clause 39 of which provided: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals, or by the law of the land.”
20 It follows that before a person can be extradited, there must be a judicial determination that the requesting state has established a prima facie case that the person sought committed the crime alleged and should stand trial for it.
21 These propositions capture not only the history of extradition, but its dual purposes. The first purpose is to foster efficient extradition where such a case is made out, in accordance with Canada’s international obligations. This requires a flexible, non-technical approach. The second purpose is to protect an individual in Canada from deportation in the absence of at least a prima facie case that he or she committed the offence alleged, which must also be an offence in Canada: Schmidt. The two purposes are complementary. International comity does not require the extradition of a person on demand or surmise. Nor does basic fairness to the person sought for extradition require all the procedural safeguards of a trial, provided the material establishes a case sufficient to put the person on trial.
22 The meaningful judicial process just described involves three related requirements: a separate and independent judicial phase; an impartial judge or magistrate; and a fair and meaningful hearing.
23 The need for a separate and independent judicial phase recognizes that extradition involves both executive and judicial acts. The judicial aspect of the process provides a check against state excess by protecting the integrity of the proceedings and the interests of the “named person” in relation to the state process (see Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, 2004 SCC 42, discussing the need for a separate and independent judicial role in relation to investigative procedures under the Anti-terrorism Act, S.C. 2001, c. 41 , which permits compelled statements for investigative purposes under judicial supervision). The judicial and ministerial phases prescribed by the Extradition Act reflect this requirement. However, as emphasized in Application under s. 83.28 of the Criminal Code (Re), the judicial phase must be independent both in appearance and in substance. This is also essential for extradition. The judicial phase must not play a supportive or subservient role to the executive. It must provide real protection against extradition in the absence of an adequate case against the person sought.
24 The need for an independent judicial hearing incorporates the right to have one’s case heard by a neutral magistrate — a right first articulated by Sir Edward Coke, one of England’s most famous lawyers and judges, in Bonham’s Case (1610), 8 Co. Rep. 113b, 77 E.R. 646, at pp. 657-58. Section 7 of the Charter , almost four centuries later, incorporates that principle in stipulating the right not to be deprived of liberty except in accordance with the principles of fundamental justice. A neutral magistrate is an independent and impartial magistrate (see Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 685, per Le Dain J.). The essence of impartiality “lies in the requirement of [a] judge to approach [a] case to be adjudicated with an open mind” (see Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, 2003 SCC 45, at para. 58).
25 An independent judicial phase and an impartial judge are elements of the third and ultimate right — the right to a “hearing”. The right to a hearing engages procedural guarantees appropriate to the context: see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Substantially, it entails, at a minimum, a meaningful judicial assessment of the case on the basis of the evidence and the law. A judge considers the respective rights of the litigants or parties and makes findings of fact on the basis of evidence and applies the law to those findings. Both facts and law must be considered for a true adjudication. Since Bonham’s Case, the essence of a judicial hearing has been the treatment of facts revealed by the evidence in consideration of the substantive rights of the parties as set down by law. It follows that the extradition judge must judicially consider the facts and the law and be satisfied that they justify committal before ordering extradition. The judge must act as a judge, not a rubber stamp.
26 I conclude that the principles of fundamental justice applicable to an extradition hearing require that the person sought for extradition must receive a meaningful judicial determination of whether the case for extradition prescribed by s. 29(1) of the Extradition Act has been established — that is, whether there is sufficient evidence to permit a properly instructed jury to convict. This requires an independent judicial phase, an independent and impartial judge and a judicial decision based on an assessment of the evidence and the law.
2.4 Do the Provisions of the Extradition Act Comply With the Principles of Fundamental Justice?
27 The question is whether s. 32(1) (a) and (b) and s. 33 of the Extradition Act , which permit the extradition judge to act on the record of the case or evidence adduced pursuant to a treaty, violate the appellants’ constitutional right to a fair judicial hearing when considered together with the judge’s duty to determine the case for extradition under s. 29(1) .
28 The Act provides that evidence is admissible if it is either properly certified pursuant to s. 33(3) in the case of proceedings on the record of the case or in accordance with the treaty in proceedings under the treaty method of submitting evidence. The evidence may be hearsay, and under the treaties at issue in the Ortega appeals, the evidence need not include certification that it is available for trial.
29 The Act recognizes the requirement that evidence put before the extradition judge must possess indicia of threshold reliability. The former Act required either that the evidentiary provisions of the relevant extradition treaty be followed or, in the absence of provisions in a treaty, that the requesting country attest to the reliability and availability of its evidence by affidavits based on first-hand knowledge. The current Act grounds threshold reliability in conformity to treaty, or alternatively, certification by the requesting state that the evidence either justifies prosecution in the requesting state or was gathered according to the law of that state: s. 33(3) (a).
30 “Certification” means the requesting state provides its good word that the evidence meets the requirements set out in s. 33(3) . The Act requires that certifications under the record of the case method be made by “a judicial or prosecuting authority of the extradition partner” (s. 33(3) (a)). Under the treaty method of seeking extradition, admissibility of evidence is subject to extradition agreements, which also often provide indicia of reliability through some form of certification. The treaties here at issue do in fact provide for the admission of evidence pursuant to a certificate (see Appendix B).
31 The requesting state’s certificate is intended to provide a threshold indicator of reliability by reference to the requesting state’s standards. If the requesting state permits prosecution on evidence that would be considered unreliable in Canada, or if it does not but nevertheless permits gathering of unreliable evidence, the evidence is admissible in Canada on the extradition hearing. This deferral to the processes and rules of the requesting state is said to be justified by the principle of comity and the ability of Canada to determine who it will accept as extradition partners.
32 While certification may provide a general indication of reliability, given Canada’s reliance on the good faith and diligence of its extradition partners, it only indicates that the rules in the requesting state have been complied with, and does not preclude the possibility of error or falsification. Moreover, in the case of extradition under the treaties at issue in the Ortega appeals, there is no requirement even to certify the availability of the evidence for trial.
33 The absence of particular indicia of reliability or availability of evidence in itself does not violate the principles of fundamental justice applicable to extradition hearings. No particular form or quality of evidence is required for extradition, which has historically proceeded flexibly and in a spirit of respect and comity for extradition partners. It is thus difficult to contend that the provisions of the Act for the admissibility of evidence, in and of themselves, violate the fundamental norms of justice applicable to extradition.
34 What fundamental justice does require is that the person sought for extradition be accorded an independent and impartial judicial determination on the facts and evidence on the ultimate question of whether there is sufficient evidence to establish the case for extradition. This basic requirement must always be respected; a person cannot be extradited upon demand, suspicion or surmise: Glucksman. If the combined provisions of the Act reduce the judicial function to “rubber stamping” the submission of the foreign state and forwarding it to the Minister for committal, then s. 7 is violated.
35 The Extradition Act states:
29. (1) A judge shall order the committal of the person into custody to await surrender if
(a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner;
36 As noted above, this requires the judge to determine two matters: (1) what evidence is admissible under the Act; (2) whether the admissible evidence is sufficient to justify committal.
37 The inquiry into admissibility of the evidence depends on the nature of the evidence. In the Ferras appeals, the question is whether the “record of the case” meets the certification requirements of s. 33 . If so, it is admissible. In the Ortega appeals, the inquiry is whether the evidence meets the requirements of the treaties. Again, if so, it is admissible. The Act is silent on whether the judge has a residual discretion to exclude evidence that is unreliable or dangerous.
38 The inquiry into sufficiency of the evidence to commit for extradition involves an evaluation of whether the conduct described by the admissible evidence would justify committal for trial in Canada: s. 29(1) . Evidence that would justify committal in Canada requires at least some evidence on every element of the parallel Canadian crime — the double criminality requirement. The judge’s inquiry is focused on “conduct” — whether the acts disclosed in the admissible evidence are criminal in Canada (see McVey (Re), [1992] 3 S.C.R. 475, at p. 526).
39 On current jurisprudence, both inquiries appear to leave little or no room for the judge to evaluate the evidence from the foreign state and decline to extradite if the judge finds it unreliable or otherwise inadequate. This was the view taken by the majority of this Court in Shephard. At issue was whether an extradition judge could refuse to order committal for extradition where there was some evidence on every element of the offence, but the judge was nevertheless of the view that the evidence was so weak that reasonable grounds for extradition had not been made out and that it would be dangerous to commit for extradition. Ritchie J., for a five to four majority, stated that whether evidence is “manifestly unreliable” is not the test for removing evidence from a jury (p. 1087). Rejecting the test of the extradition judge and the dissenting minority, the majority in Shephard held that an extradition judge has no discretion to reject evidence on the ground that it is so dubious as to be dangerous and must commit if there is any evidence on all the necessary elements of the offence. Shephard was decided before the Charter . It has never been overruled or altered, except to permit a judge to engage in limited weighing of circumstantial evidence to ensure that inferences from the evidence are reasonably supportable to establish some evidence on all the required elements of the offence (see R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54).
40 On this view of the law, the combined effect of the relevant provisions (ss. 29, 32 and 33 of the Act) may be to deprive the person sought of the independent hearing and evaluation required by the principles of fundamental justice applicable to extradition. If the extradition judge possesses neither the ability to declare unreliable evidence inadmissible nor to weigh and consider the sufficiency of the evidence, committal for extradition could occur in circumstances where committal for trial in Canada would not be justified. I take as axiomatic that a person could not be committed for trial for an offence in Canada if the evidence is so manifestly unreliable that it would be unsafe to rest a verdict upon it. It follows that if a judge on an extradition hearing concludes that the evidence is manifestly unreliable, the judge should not order extradition under s. 29(1) . Yet, under the current state of the law in Shephard, it appears that the judge is denied this possibility. Similarly, I take it as axiomatic that a person could not be committed to trial for an offence in Canada if the evidence put against the person is not available for trial. As Donald J.A., dissenting in Ortega stated, at para. 51:
If evidence is not available for trial it should not be used as a basis for committal. The concern goes well beyond modalities and rules of evidence, it goes to the heart of the question for the judge: whether there is enough evidence to put the requested person on trial.
Yet on the majority view in Shephar