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Lothar Ebke
|
AP2001/016
AP2002/017
IN THE COURT OF APPEAL
FOR THE
NORTHWEST TERRITORIES
IN THE MATTER OF AN APPEAL FROM THE COMMITTAL ORDER DATED
SEPTEMBER 6, 2001;
AND IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
OF THE DECISION OF THE MINISTER OF JUSTICE AND ATTORNEY GENERAL
OF CANADA DATED JULY 31, 2002;
B E T W E E N:
WALTER LOTHAR EBKE
(Applicant/Appellant)
- and -
THE FEDERAL REPUBLIC OF GERMANY
and
THE MINISTER OF JUSTICE AND ATTORNEY GENERAL OF
CANADA
(Respondents)
APPLICANT/APPELLANT'S FACTUM
PART I - STATEMENT OF FACTS
A) Introduction
- The Federal Republic of Germany has requested the extradition
of Walter Lothar Ebke (hereinafter "the appellant")
in relation to allegations that between 1985 and 1993 he was a
member of a terrorist association and, further, that he participated
in a bombing and an attempted bombing in Berlin in 1987 and 1991,
respectively.
- Extradition proceedings against the appellant commenced with
the issuance of a provisional arrest warrant by the Honourable
Mr. Justice Vertes on May 18, 2000. The appellant was arrested
in Yellowknife that same day. He spent thirty two days in custody
before being released on bail with stringent conditions.
Warrant of Apprehension dated May 18, 2000
Appeal Book (Judicial Review), pages 419-21
- The extradition hearing took place before Vertes J. over a number
of days in 2000 and 2001. Vertes J. ruled on several procedural
and substantive matters including a challenge to the constitutionality
of ss. 32(1)(a), 32(1)(b), 33 and 34 of the Extradition Act
(S.C. 1999, c.18). He also ruled on whether the test for committal
pursuant to s.29(1) of the Extradition Act had been met.
In reasons for judgment released on February 23, 2001, Vertes
J. held that the evidentiary scheme in the new Extradition
Act was constitutional. In reasons for judgment released on
September 6, 2001, Vertes J. ordered the appellant's committal
for surrender on all charges listed in the authority to proceed.
Reasons for Judgment released September 6, 2001
Appeal Book, Volume II, pages 651-701
Order of Committal dated September 6, 2001
Appeal Book (Judicial Review), pages 115-17
- On July 31, 2002, the Minister of Justice ordered the appellant's
surrender on all charges for which his extradition was sought.
Letter from the Minister of Justice dated July 31, 2002
Appeal Book (Judicial Review), pages 104-12
Order of Surrender dated July 31, 2002
Appeal Book (Judicial Review), pages 113-14
- By Notice of Appeal dated September 6, 2001, the appellant appeals
against the committal order. By Notice of Application for Judicial
Review dated August 30, 2002, the appellant seeks judicial review
of the Minister's surrender decision.
Notice of Appeal dated September 6, 2001
Appeal Book, Volume II, pages 478-81
Notice of Application for Judicial Review dated August 30,
2002
Appeal Book (Judicial Review), pages 100-03
B) Background to the Extradition Request
- According to the record of the case submitted in support of
the extradition request, the Federal Republic of Germany seeks
the appellant's extradition in respect "investigation proceedings
of the Attorney General at the Federal Court of Justice [. . .]
because of suspicion of the crime of membership in a terrorist
organisation in coincidence with the jointly committed crime of
causing an explosion and the attempted causing of an explosion
by explosives." Three specific offences are listed in the
German arrest warrant that was issued by a judge of the German
Federal Court of Justice on March 9, 2000, to wit:
a) being a member of an association whose aim and activities
are directed toward committing criminal acts causing public
danger pursuant to sections 306 to 308 and section 311 of
the German Penal Code;
b) jointly causing an explosion using explosives on
the night of February 5/6, 1987 in Berlin, thus endangering
third party's property of considerable value;
c) jointly attempting to cause an explosion using explosives,
and thus to endanger third party's property of considerable
value on January 15, 1991 in Berlin.
Exhibit 7 - Arrest Warrant
Appeal Book, Volume II, pages 472-73
- The German investigation into the appellant's possible involvement
in these offences can be traced back to March 28, 1995, when a
quantity of illicit commercial explosives was stolen from a cellar
rented by one Tarek Mousli. When the explosives came to the attention
of the Federal Public Prosecutor's Office (Bundesanwaltschaft,
BAW), an investigation was launched into their possible connection
to a series of bombings allegedly carried out by a now disbanded
political group known as the "Revolutionary Cells" (Revolutionäre
Zellen, RZ). During the 1970's through the early 1990's, the
Revolutionary Cells had claimed responsibility for numerous attacks
on property using explosives and arson, justifying the actions
as being in pursuit of the group's political aims.
- Mousli was one of the main targets of the police investigation
that ensued from the discovery of the explosives. He was eventually
arrested in May 1999 on charges related to storage of the explosives.
After being released, he was rearrested in November 1999 on charges
relating to his membership in a terrorist organization (i.e. the
Revolutionary Cells). It was alleged that as a member of the group,
Mousli had participated in an explosives attack on the building
of the Central Social Relief Office of Asylum Seekers (ZSA) on
February 6, 1987, and in the shootings of two government officials
in 1986 and 1987. In late 1999, Mousli chose to avail himself
of the Crown Witness Regulation (CWR), a program under which lighter
sentences, financial support and witness protection were granted
to people charged with serious crimes if they incriminated others
and cooperated in their prosecution. (The program was ended by
the German Parliament in December 1999, because of concerns about
the integrity and reliability of evidence obtained under the CWR.
Mousli offered his cooperation just before the program was to
end.) As a result, he obtained a suspended sentence on the charges
that were pending against him, significant financial assistance
and witness protection.
- According to Mousli, he and the appellant became friends in
the early 1980's. In 1985 they were recruited to join the Berlin
cell of the Revolutionary Cells. (Material tendered by the requesting
state indicated that the Revolutionary Cells organization was
made up of a number of semi-autonomous sub-groups. The appellant
had no connection whatsoever to many of the activities of the
Revolutionary Cells described in the supporting material, these
having been carried out by other cells at times when the appellant
is not even alleged to have been a member of the Berlin cell.)
Mousli alleges that the appellant aided in the shooting of one
Harald Hollenberg on October 28, 1986; that he aided in the shooting
of one Dr. Karl Korbmacher on September 1, 1987; that he aided
in the bombing of the Central Social Relief Office for Asylum
Seekers in Berlin on the night of February 5/6, 1987; and that
he participated in some fashion in the bombing of the "Victory
Column" (the Siegessaule) on January 15, 1991. (Mousli
himself had left the group when this last incident occurred and
did not participate in it.) Mousli further alleges that all these
activities were carried out under the auspices of the Revolutionary
Cells.
- Prosecution for the Hollenberg and Korbmacher shootings is barred
by the expiry of limitation periods. As a result, the requesting
state only seeks the appellant's extradition for the purpose of
further investigation into the allegations of jointly causing
an explosion on the night of February 5/6, 1987; attempting to
cause an explosion on January 15, 1991; and being a member of
a terrorist organization or association between 1985 and 1993.
The latter allegation is further particularized by reference to
offences related to arson and the use of explosives. There is
no reference to any offence involving acts of violence directed
against persons (e.g. the offences committed in the attacks on
Hollenberg and Korbmacher).
General Legal Declaration of Michael Bruns dated June 21, 2000
Appeal Book (Judicial Review), pages 186-200
C) The Ongoing Proceedings in Germany
- Mousli's uncorroborated allegations are also the cornerstone
of the trial of five other individuals who he alleges were also
members of the Revolutionary Cells and participated in many of
the same incidents as the appellant. The trial of Axel Haug, Sabine
Eckle, Matthias Borgmann and Harald Glöde. began on March
22, 2001, but was aborted when the prosecution sought to join
a fifth accused, Rudolf Schindler. Trial proceedings against all
five commenced on May 17, 2001, and are still continuing. Until
relatively recently, none of the accused had been granted bail
despite repeated requests. On January 18, 2002, Rudolf Schindler
and his wife, Sabine Eckle, were granted bail with the prosecutor's
consent after Schindler made a detailed admission of guilt to
the Court. Schindler's statement refutes and contradicts Mousli's
allegations on a number of material points.
- The German prosecution has been criticized by human rights advocates
and international observers. Of particular concern are the apparent
political motivation of the proceedings, the circumstances under
which Mousli's cooperation was obtained, the prosecutor's failure
to make full and timely disclosure, the conduct of the police,
the conditions under which the accused were detained pending trial,
the repeated denials of bail and the length of time the proceedings
are taking.
D) The Appellant's Personal Circumstances
- The appellant was born in Germany on October 30, 1953. He is
a German citizen. The appellant has lived in Canada on a full-time
basis since April 1996. He first visited Canada as a tourist in
1984. He visited Canada again in 1993 and 1995. He obtained landed
immigrant status in early 1996. He is married to Agnes Billa.
The appellant does not have a criminal record in Canada or in
Germany.
- The appellant resides in the City of Yellowknife where he co-owns
and operates Back Bay Boat Bed and Breakfast. He is also the sole
proprietor of Lothar's Workmanship Solutions, a business in which
he performs general carpentry as well as boat-building and repair.
While living and working in Yellowknife, the appellant has earned
an excellent reputation as a business person and member of the
community. His original application for bail and his later application
for bail pending appeal, both opposed by counsel for the requesting
state, drew strong community support in the form of affidavits,
letters and petitions. The appellant continues to enjoy the support
of his community.
PART II - GROUNDS OF APPEAL
- The appellant raises three main grounds in his appeal against
the committal order and his application for judicial review of
the surrender decision:
a) The extradition judge erred in concluding that ss.
32(1)(a), 32(1)(b), 33 and 34 of the Extradition Act
did not contravene s.7 of the Canadian Charter of Rights
and Freedoms.
b) The extradition judge erred in committing the appellant
into custody to await surrender on all the offences listed
in the authority to proceed.
c) The Minister of Justice committed reviewable error
by ordering the appellant's unconditional surrender on all
the offences in respect of which extradition was requested.
PART III - POINTS OF LAW
A) The Constitutional Challenge
1) Introduction
- In 1999, a new Extradition Act came into force in Canada.
The request for the appellant's extradition has proceeded in accordance
with the procedures and rules of admissibility set out in the
new Act. As a preliminary application, the appellant challenged
the constitutionality of certain key evidentiary provisions in
the Act. The appellant contended that these provisions were an
unjustifiable infringement of the rights guaranteed by s.7 of
the Canadian Charter of Rights and Freedoms ("the
Charter") and, as such, should be struck down. Vertes
J. upheld the constitutionality of the new provisions in a reasons
for judgment released on February 23, 2001. Subsequently, the
Court of Appeal for Ontario rejected a similar challenge to the
new legislation in United States of America v. Yang.
Reasons for Judgment released February 23, 2001
Appeal Book, Volume III, pages 446-76
United States of America v. Yang (2001), 157 C.C.C.
(3d) 225 (Ont. C.A.)
2) The Statutory Provisions
- The new Extradition Act effected a number of significant
changes in the procedures governing extradition and the rules
of evidence applicable at an extradition hearing. It is to the
latter that the appellant's constitutional challenge is directed.
Briefly, s.32(1) makes admissible in an extradition hearing, in
addition to evidence that would otherwise be admissible under
Canadian law, the documents in a "record of the case"
certified pursuant to s.33 of the Act, documents submitted in
conformity with the terms of an extradition agreement and evidence
adduced by the person sought for extradition. The latter evidence
is admissible provided that it is relevant to the tests for committal
set out in s.29(1) of the Act and the extradition judge considers
it reliable. All of this evidence is admissible "even if
it would not otherwise be admissible under Canadian law."
The only exception (which has no application here) is s.32(2),
which stipulates that evidence "gathered in Canada must satisfy
the rules of evidence under Canadian law in order to be admitted."
Section 33 of the Act outlines the mandatory and optional content
of the record of the case. Section 34 makes a document admissible
whether or not it is sworn or affirmed. Sections 35, 36 and 37
deal with proof of signatures, translations and identity, respectively.
Evidence admissible under the Act is to be considered by the extradition
judge in determining whether that evidence satisfies the test
for committal set out in s.29(1) of the Act, even if, as noted
above, that evidence would not otherwise be admissible under Canadian
law.
- The record of the case is at the heart of the constitutional
challenge. Its nature and contents are described in s.33 of the
Act as follows:
33. (1) The record of the case must include
(a) in the case of a person sought for the purpose
of prosecution, a document summarizing the evidence
available to the extradition partner for use in the
prosecution; and
(b) in the case of a person sought for the imposition
of a sentence,
(i) a copy of the document that records the
conviction of the person, and
(ii) a document describing the conduct for which
the person was convicted.
(2) A record of the case may include other relevant
documents, including documents respecting the identification
of the person sought for extradition.
(3) A record of the case may not be admitted unless
(a) in the case of a person sought for prosecution,
a judicial or prosecuting authority of the extradition
partner certifies that the evidence summarized or contained
in the record of the case is available for trial and
(i) is sufficient under the law of the extradition
partner to justify prosecution, or
(ii) was gathered according to the law of the
extradition partner; or
(b) in the case of a person sought for the imposition
or enforcement of a sentence, a judicial, prosecuting
or correctional authority of the extradition partner
certifies that the documents in the record of the case
are accurate.
(4) No authentication of documents is required unless
a relevant extradition agreement provides otherwise.
(5) For the purposes of this section, a record of the
case includes any supplement added to it.
- Evidence tendered on the constitutional challenge indicated
that Parliament enacted these new rules of evidence and made other
changes to the procedure governing extradition in part in order
to ameliorate the difficulties that had arisen from time to time
in the past when a requesting state, whose legal system may differ
from ours, tried to comply with Canadian domestic evidentiary
requirements. Evidence tendered also indicated that this has been
a common problem encountered in extradition proceedings in other
countries, especially where one state has a common law tradition
and the other is based in the civil law. A particular problem
was that non-common law countries found it difficult to comply
with the requirement of sworn affidavits based on first-hand knowledge
of the events capable of providing proof of a prima facie
case. There was also evidence that the United States, with whom
Canada transacts most of its extradition business and whose legal
system is similar to ours in many respects, found the Canadian
rules requiring first-hand affidavits cumbersome.
- The genesis of the new rules of evidence is summarized succinctly
by Rosenberg J.A. in United States of America v. Yang:
The scheme in the new Extradition Act originates
in negotiations between the law ministers of the Commonwealth.
In 1986, the Government of Australia proposed the abolition
of the prima facie test within the Commonwealth scheme
for rendition. Canada, in particular, was opposed to this suggestion,
which would have abolished any judicial assessment of the sufficiency
of the request. Accordingly, in 1989 at a meeting in New Zealand,
Canada proposed that the prima facie test be retained
but that the requesting state could rely upon a record of the
case. The record of the case would contain a recital of the
evidence. Thus, there would be no requirement for affidavits
containing first-hand accounts. Further, the recital of the
evidence could be based upon evidence admissible in the requesting
state and not necessarily admissible in the requested state.
This proposal would bring the Commonwealth more in line with
the scheme for extradition as set out in the European Convention
on Extradition and the United Nations Model Treaty on
Extradition. The law officers of the Commonwealth adopted
Canada's proposal.
United States of America v. Yang, supra, at 240
- The appellant challenges the new rules of evidence on the basis
that it is contrary to the principles of fundamental justice to
treat the certification of the record of the case as a sufficient
condition for the admissibility of its contents even if those
contents would not otherwise be admissible under Canadian law
(s.32(1)). The appellant also contends that it is contrary to
the principles of fundamental justice to allow for the admission
of documents whether or not they are solemnly affirmed or under
oath (s.34).
3) Extradition Law and the Charter
- The committal hearing has a direct impact on the liberty and
security interests of the person whose extradition has been requested.
If the test under s.29(1) of the Act is met, the extradition judge
"shall order the committal of the person into custody to
await surrender." The committal order is also a necessary
precondition for the matter coming before the Minister of Justice
for his or her decision on surrender. If made, the surrender order
entails the forced removal of the person sought from Canada, his
or her further incarceration in the requesting state, a criminal
trial and the threat of punishment if ultimately found guilty
of the offence.
- The Supreme Court of Canada has confirmed repeatedly that the
Charter applies to extradition proceedings in the sense
that the treaty, the extradition hearing in Canada and the exercise
of the executive discretion to surrender the person sought all
must conform to the requirements of the Charter. With respect
to the judicial phase of the extradition process, the majority
held in United States of America v. Dynar:
The Charter does therefore guarantee the fairness
of the committal hearing. The Minister's discretion in deciding
to surrender the fugitive may also attract Charter scrutiny.
In both instances, s.7 of the Charter, which provides
that an individual has a right not to be deprived of life, liberty
or security of the person, except in accordance with the principles
of fundamental justice, will be most frequently invoked. It
is obvious that the liberty and security of the person of the
fugitive are at stake in an extradition proceeding. The proceedings
must therefore be conducted in accordance with the principles
of fundamental justice: [references omitted].
United States of America v. Dynar (1997), 115 C.C.C.
(3d) 481 at 522 (S.C.C.)
Schmidt v. The Queen (1987), 33 C.C.C. (3d) 193 at 212-14
(S.C.C.)
- The level of protection afforded to a person sought for extradition
is shaped by the context and purpose of the extradition hearing.
As Arbour J. held in United States of America v. Cobb:
The principles of fundamental justice guaranteed by s.7
vary according to the context of the proceedings in which they
are raised: [references omitted]. Where the issues before the
courts involve a liberty and security interest, s.7 is engaged
and requires that the proceedings be conducted fairly. Accordingly,
although the committal hearing is not a trial, it must conform
with the principles of procedural fairness that govern all judicial
proceedings in this country, particularly those where a liberty
or security interest is at stake.
[. . .]
Section 7 permeates the entire extradition process and
is engaged, although for different purposes, at both stages
of the proceedings. After committal, if a committal order is
issued, the Minister must examine the desirability of surrendering
the fugitive in light of many considerations, such as Canada's
international obligations under the applicable treaty and principles
of comity, but also including the need to respect the fugitive's
constitutional rights. At the committal stage, the presiding
judge must ensure that the committal order, if it is to issue,
is the product of judicial fairness.
Similarly, the majority held in Kindler v. Canada:
While the extradition process is an important part of our
system of criminal justice, it would be wrong to equate it to
the criminal trial process. It differs from the criminal process
in purpose and procedure and, most importantly, in the factors
which render it fair. Extradition procedure, unlike the criminal
procedure, if founded on the concepts of reciprocity, comity
and respect for the differences of other jurisdictions.
This unique foundation means that the law of extradition
must accommodate many factors foreign to our internal criminal
law. While our conceptions of what constitutes a fair criminal
law are important to the process of extradition, they are necessarily
tempered by other considerations.
In addition to the need to meet Canada's international obligations,
the principles of fundamental justice that govern a committal hearing
are also shaped by the fact that the committal hearing does not
result in a final determination of guilt or innocence.
United States of America v. Cobb (2001), 152 C.C.C.
(3d) 270 at 284-85 (S.C.C.)
Kindler v. Canada (Minister of Justice) (1991), 67 C.C.C.
(3d) 1 at 51 (S.C.C.)
United States of America v. Dynar, supra, at
523-25
- As a result of the unique context and purpose of the law of
extradition, significant limitations on due process rights in
the extradition hearing have been upheld. Even under the former
regime, the requesting state could rely solely on documentary
evidence, the person sought had no right to require viva voce
evidence or the opportunity to cross-examine foreign witnesses
and had limited rights to call evidence on his or her own behalf.
Similarly, the right to disclosure of evidence from the requesting
state is significantly attenuated compared to the right to disclosure
in a domestic criminal proceeding. In such circumstances, other
safeguards for the liberty and security interests of the person
sought assume a heightened significance. It is submitted that
foremost among these safeguards was the traditional role of the
extradition judge.
4) The Traditional Role of the Extradition Judge
in Protecting the Person Sought
- The role of the extradition judge has repeatedly been described
as a modest one, defined and circumscribed by statute. Yet this
role, modest as it is, has also repeatedly been described as being
critical to the protection of the liberty interests of the person
sought. The role of the extradition judge in assessing the evidence
adduced in support of the extradition request and determining
whether the person ought to be committed for extradition is the
essence of his or her function. As La Forest J. held in United
States of America v. McVey, the most important feature of
the law of extradition to protect the liberty of the person sought
"is the requirement that there be prima facie evidence
that the act charged would constitute a crime in Canada. This
specific matter, about which judges are most competent, is the
task assigned to a judge by the Extradition Act."
La Forest J. goes on to observe that this
critical function for the liberty of the subject is assigned
by the Extradition Act to an extradition judge under
a procedure similar to a preliminary inquiry. This is a matter
the judge is more competent to do. To expedite the procedure
and minimize expense, however, depositions are to be admitted
in evidence in lieu of witnesses at the hearing when properly
certified and authenticated (art. 10(2)). For their validity,
we thus rely on the fairness and good faith of judicial and
political authorities of the requesting state.
United States of America v. McVey (1992), 77 C.C.C.
(3d) 1 at 15, 17, 20 (S.C.C.)
- It is submitted that the traditional function of determining
the admissibility of and, under the test in United States of
America v. Sheppard, assessing the value of the evidence tendered
in support of an extradition request is so deeply ingrained in
Canadian jurisprudence and is so important for counterbalancing
the significant limitations on the rights of the person sought
for extradition that it is a requirement of fundamental justice
in the extradition context. As has been said repeatedly of the
extradition judge under the former Act, he or she plays a central
role in the protection of the liberty and security interests of
the individual in extradition proceedings. The essence of that
function was the reception and assessment of evidence going to
the satisfaction of the double criminality requirement. In turn,
the evidentiary threshold applicable to that determination is
predicated upon the admissibility of evidence in accordance with
domestic rules of evidence. It is submitted that any diminution
of that function lessens the extradition judge's capacity to protect
the liberty and security interests of the person sought for extradition.
The rules of evidence under the new Act do so in a way that is
contrary to the principles of fundamental justice.
5) The Rules of Evidence and Extradition
- Like many other treaties, the Treaty between Canada and the
Federal Republic of Germany concerning Extradition identifies
the documents that must be submitted in support of a request for
extradition (Article XIV). The treaty also provides that these
documents shall be admitted in evidence in extradition proceedings
if signed by a competent judge or officer and sealed with the
seal of the Federal Minister of Justice of the requesting state
(Article XV). These rules govern the form of the evidence. Traditionally,
however, the content of the material supporting the extradition
request had to be admissible under Canadian rules of evidence.
In McVey, the Supreme Court observed: "Put simply,
s.18(1)(b) [of the former Act] tells us that the extradition judge's
duty is to commit a fugitive accused of an extradition crime,
if such evidence is produced as would according to the law
of Canada justify his or her committal" (emphasis in
original). And in Dynar, the Court said: "It is true
that the fugitive is entitled to be committed only on the basis
of evidence that is legally admissible according to the law of
the province in which the committal hearing takes place."
Accordingly, while material that complied with the Treaty would
be received, it would be edited (at least notionally) to comply
with the Canadian rules of evidence. So for example a document
containing inadmissible hearsay may be admitted but its contents
would be edited to excise evidence that would not be admissible
under Canadian law.
United States of America v. McVey, supra, at
11
United States of America v. Dynar, supra, at
528
United States of America v. Adam (May 17, 1999) (Ont.
C.A.) [unreported]
United States of America v. Giannini (April 8, 1994)
(Ont. C.A. in chambers) [unreported]
United States of America v. Masini (September 20, 1995)
(Ont. Gen. Div.) [unreported]
La Forest, La Forest's Extradition to and from Canada
(3rd ed.) at 151-61
- The standard of proof operable at the judicial phase of extradition
proceedings under both the old Act and the new one is that set
out in United States of America v. Sheppard, namely:
. . . whether or not there is any evidence on which a reasonable
jury properly instructed could return a verdict of guilty. The
"justice", in accordance with this principle, is,
in my opinion, required to commit an accused person for trial
in any case in which there is admissible evidence which
could, if it were believed, result in a conviction (emphasis
added).
Under the old Act, it was the Canadian rules of evidence that determined
admissibility. Now admissibility is determined by s.32(1) of the
new Act. The central question raised in this challenge to the new
legislation is whether it is consistent with the principles of fundamental
justice to permit the committal decision to be made on the basis
of evidence that may not otherwise be admissible under Canadian
law.
United States of America v. Sheppard (1976), 30 C.C.C.
(2d) 424 at 427 (S.C.C.)
Re Skogman and the Queen (1984), 13 C.C.C. (3d) 161
at 169-71 (S.C.C.)
La Forest, La Forest's Extradition to and from Canada
(3rd ed.) at 148-61
- Under the Sheppard approach, the extradition judge is
prohibited from assessing the quality of the evidence adduced,
or weighing the evidence once it has been found to be admissible.
Assessment of the ultimate reliability of the evidence is the
sole function of the trier of fact. It is important to maintain
the distinction, however, between assessing the ultimate reliability
of evidence and determining whether a threshold level of reliability
has been met in deciding upon the admissibility of evidence. While
a justice presiding over a preliminary inquiry may not engage
in the former, the latter is an inherent part of the discharge
of his or her function. In holding in R. v. Hynes that
a preliminary inquiry justice does not have jurisdiction to exclude
evidence under s.24(2) of the Charter, the majority remarking
on the power of preliminary inquiry justice to make other kinds
of rulings on the admissibility of evidence, quoted the following
passage from R. v. Seaboyer:
The Criminal Code restricts the task of the preliminary
inquiry judge to determining if there is a sufficient case to
warrant prosecution. While evidentiary rulings may be made in
the course of discharging this function, they have no effect
on the outcome of the trial or the accused's guilt or innocence.
To discharge the function of determining if there is sufficient
evidence to warrant committal it is sufficient to accept the
rules of evidence as they stand; the rights of the accused do
not require more at this stage (emphasis added by McLachlin
C.J.).
Later McLachlin C.J. observed: "The justice evaluates the
admissible evidence to determine whether it is sufficient to justify
requiring the accused to stand trial.". And further:
The preliminary inquiry justice, in assessing the sufficiency
of the Crown's case, may rule on the admissibility of evidence.
Section 542(1) of the Code expressly includes statements
made by the accused in the evidence that the Crown may call
at a preliminary inquiry. The traditional rules governing the
admissibility of evidence apply. Most notably, the preliminary
inquiry justice may refuse to admit statements of the accused
to persons in authority if they were not made voluntarily.
R. v. Hynes (2001), 159 C.C.C. (3d) 359 at 374-78 (S.C.C.)
Monteleone v. The Queen (1987), 35 C.C.C. (3d) 193 at
197-98 (S.C.C.)
- Historically, the committal hearing in the extradition context
has been equated with the domestic preliminary inquiry. This has
been so not only with respect to the procedures followed but also
the very test that must be met each proceeding before the matter
is permitted to move on to the trial stage (whether in Canada
or abroad). As Estey J. observed with respect to the preliminary
inquiry in Re Skogman and The Queen:
The purpose of a preliminary inquiry is to protect the accused
from a needless, and indeed, improper, exposure to public trial
where the enforcement agency is not in possession of evidence
to warrant the continuation of the process.
Doherty J.A. addressed the analogy between the preliminary inquiry
and the committal hearing in Pacificador v. Philippines (Republic
of), noting:
Both serve as screening devices. They are designed to ensure
that persons are not placed in jeopardy where their accuser
cannot show that there is a case to answer. Both procedures
also preserve to the appropriate authority the ultimate adjudication
of the allegations. Viewed in this light, s.18(1)(b) [of the
former Act] strikes a balance between the need to assist other
countries who seek vindication of their laws and the need to
protect individuals in Canada from baseless or arbitrary surrender
to foreign jurisdictions.
After quoting the discussion in Schmidt concerning the role
of the extradition hearing in protecting the liberty of the person
sought, Doherty J.A. continued:
This language suggests to me that some judicial assessment
of the validity of the allegation must be a prerequisite to
extradition. It equally suggest that the assessment presented
by s.18(1)(b) is entirely appropriate.
When s.18(1)(b) is viewed in combination with the other
features of the extradition process, it can be seen as providing
a measure of protection for the fugitive against unwarranted
demands for the return of the fugitive to the foreign country.
At the same time, the comprehensive scheme of which s.18(1)(b)
is a part, provides full recognition of Canada's international
obligations and societal interests in having those accused of
crimes in foreign jurisdictions returned to those jurisdictions
for trial. The evidentiary standard demanded by s.18(1)(b) is
appropriate to the task assigned to the judiciary.
Re Skogman and The Queen, supra, at 171
Pacificador v. Philippines (Republic of) (1993), 83
C.C.C. (3d) 210 at 223-24 (Ont. C.A.)
- Until the enactment of the new Extradition Act, it was
also the case that while extradition judges, like preliminary
inquiry justices, could not concern themselves with the ultimate
reliability of the evidence, they did apply the traditional rules
of evidence. It is submitted that these rules have as part of
their principled rationale a concern for reliability. Further,
the need for a minimum threshold of reliability to be met before
evidence may be admitted is a principle of fundamental justice.
It is submitted that Vertes J. and the Court of Appeal for Ontario
erred in concluding otherwise.
R. v. B.(K.G.) (1993), 79 C.C.C. (3d) 257 at 285-94
(S.C.C.)
R. v. Starr (2000), 147 C.C.C. (3d) 449 at 525-35 (S.C.C.)
R. v. Oickle (2000), 147 C.C.C. (3d) 321 at 345-55 (S.C.C.)
Reasons for Judgment released February 23, 2001
Appeal Book, Volume III, page 466
United States of America v. Yang, supra, at 244-51
- While the extradition judge applying the Sheppard test
is prohibited from considering the reliability of evidence once
it has been found to be admissible, the rules of evidence provide
an assurance that evidence that is received at the committal hearing
meets a minimum threshold of reliability. Given the low standard
of proof under the Sheppard test and the limited due process
rights for persons sought for extradition, if the Sheppard
test is to provide any protection at all, the evidence must be
assessed to be admissible according to the ordinary rules of evidence.
Indeed, the Sheppard test itself is premised on this. The
requirements of the material in support of the extradition request
being in the first person, sworn or affirmed, certified, authenticated
and subject to other domestic rules of evidence all afforded the
extradition judge the assurance that the evidence being received
met a minimum threshold of reliability and could, therefore be
relied upon. It is submitted that this prerequisite is a principle
of fundamental justice in any proceeding in which liberty and
security of the person are at stake.
Re United States of America and Smith (1984), 10 C.C.C.
(3d) 540 (Ont. C.A.)
Government of the Republic of Italy v. Piperno (1982),
66 C.C.C. (2d) 1 at 11-14 (S.C.C.)
Netherlands (Kingdom) v. Clarkson (2000), 146 C.C.C.
(3d) 482 at 489-93 (B.C.C.A.)
Re Wong Shue Teen and the United States of America (1975),
24 C.C.C. (2d) 501 at 504-05 (Fed. C.A.)
La Forest, La Forest's Extradition to and from Canada
(3rd ed.) at 151-61
6) The New Regime and the Principles of Fundamental
Justice
- As outlined above, the rules of admissibility under the new
Extradition Act change both the form and the substance
of the evidence that may be considered at the extradition hearing.
With respect to form, the hearing may be conducted on the basis
of what could be little more than a letter from a foreign prosecutor.
With respect to content, s.32(1) states expressly that the requesting
state may rely on evidence even if it would not otherwise be admissible
under Canadian law (as long as it was not gathered in Canada).
As Rosenberg J.A. observed in United States of America v. Yang:
it is apparent that 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 by the Supreme
Court in cases such as R. v. B.(K.G.) [citations omitted],
and R. v. Smith [citations omitted]. Thus, as I will
describe below, the record of the case in the appellant's case
consists entirely of second- or third-hand hearsay that would
probably not be admissible in a Canadian trial. The impugned
provisions would also permit the admission of character or opinion
evidence at the extradition hearing although such evidence might
not be admissible at a Canadian trial.
In the result, the extradition hearing has moved very far
from the typical Canadian trial or preliminary inquiry where
the judge, by applying the common law and statutory rules of
evidence based on the paradigm of trial by the law jury, performs
a gatekeeper function to keep potentially unreliable and prejudicial
evidence away from the trier of fact.
United States of America v. Yang, supra, at 234-35
- As Vertes J. observed, the record of the case in the case at
bar contains "hearsay, character evidence, unqualified opinion
evidence, and other forms of evidence that would not ordinarily
be admissible in domestic Canadian proceedings." It is, however,
admissible under the new Act. And as admissible evidence, the
extradition judge must consider whether it meets the Sheppard
test even if it could never do so in the context of a domestic
preliminary inquiry.
Reasons for Judgment released February 23, 2001
Appeal Book, Volume III, page 452
- It is submitted that the notion of "evidence" has
become so attenuated as to be essentially unrecognizable and the
extradition judge's role is reduced to one not far removed from
a rubber stamp. The efficacy of the hearing as a screening mechanism
and the crucial role of the extradition judge in protecting the
liberty of the person sought are essentially lost.
- It is submitted that the certification requirements do not answer
these concerns. Pursuant to s.33(3)(a) of the Act, a judicial
or prosecuting authority of the requesting state must certify
that the evidence summarized or contained in the record of the
case is "available for trial" and
(i) is sufficient under the law of the extradition partner
to justify prosecution, or
(ii) was gathered according to the law of the extradition
partner.
It is to be noted that the certification may be in either form.
With respect to the manner in which the evidence was gathered, it
is submitted that this cannot be any kind of meaningful assurance
of reliability, particularly for requesting states that do not share
our legal traditions. As for the sufficiency of the evidence to
justify prosecution, it bears repeating that the certification need
not be in these terms. That it can be, however, appears to be the
point upon which the decision of the Court of Appeal for Ontario
in Yang turned. "Put simply," Rosenberg J.A. wrote,
"if we are prepared to countenance a trial of persons, including
our own citizens, in jurisdictions with very different legal systems
from our own, it is open to Parliament to design an extradition
procedure that, with appropriate safeguards, accommodates those
differences."
United States of America v. Yang, supra, at 245
- The appellant's fundamental contention (which, however, neither
Vertes J. nor the Court of Appeal for Ontario accepted) is that
the rules of evidence that traditionally applied at the extradition
hearing are among the fundamental "safeguards" that
cannot constitutionally be removed from the process.
- When Bill C-40 was introduced for Second Reading, Eleni Bakopanos
advised the House of Commons:
This record of the case would be certified by appropriate
authorities in the requesting state and accompanied by certain
assurances in relation to issues such as the availability of
the evidence, its sufficiency for prosecution purposes or its
accuracy.
The notion of a record of the case is consistent with the
recent Supreme Court of Canada decision on hearsay in which
the supreme court [sic] abandoned the strict formalism of the
hearsay rule to adopt a more flexible standard based on necessity
and circumstantial guarantee of trustworthiness.
In some respects, therefore, the existent evidentiary requirements
for a Canadian extradition hearing are more formalistic and
onerous than those for a Canadian trial.
It is respectfully submitted that these comments beg the key question.
While the certification process may be a trustworthy indication
of what the evidence is, it hardly assures us that the evidence
itself is trustworthy.
House of Commons Debates, October 8, 1998, p.9005
Respondent's Record, Volume II, Tab 1
- The appellant acknowledges that defining the principles of fundamental
justice in any given context requires striking the appropriate
balance between the interests of the individual and the interests
of the state. In the extradition context, this entails a balancing
of the individual's interests against, among other considerations,
the principle of comity and the need for Canada to be able to
fulfil its international obligations. It is submitted that the
following considerations are germane to determining whether Parliament
has struck the right balance. First, many of the difficulties
inherent in the previous regime could be and were alleviated by
relaxing the rules governing the form of the evidence. Second,
most of Canada's extradition business is transacted with countries
(most notably, the United States) that share the same legal traditions,
including rules of evidence substantially similar to ours. It
was surely unnecessary to abrogate the rules of evidence to facilitate
the processing of extradition requests from these countries. Third,
the requirement that evidence gathered in Canada must satisfy
Canadian rules of evidence and the requirement that evidence adduced
by the person sought must be judged reliable put the person sought
at a relative disadvantage compared to the requesting state and
suggest that the primary motivation for the changes was administrative
expediency. Fourth, Parliament chose to retain one feature of
the previous regime — the prima facie case requirement — that
had attracted particular complaint and, presumably, will continue
to be problematic for some countries. Fifth, even if the traditional
rules of admissibility were retained, it need not be the case
that all of the requesting state's evidence be admissible according
to Canadian rules of evidence. As long as there is some evidence
admissible under these rules that meets the Sheppard test,
committal may be ordered. Finally, the principles of reliability
that underlie Canadian rules of evidence are inextricably connected
to the truth-seeking function of the criminal trial process. Surely
Canada has no obligation to facilitate a prosecution that does
not pursue this goal.
7) Section 1 of the Charter
- In the court below, the respondent did not rely on s.1 of the
Charter and no evidence was led going to its various elements.
Rather, it was the respondent's position that no violation of
the principles of fundamental justice had been made out. This
was also the position of the Department of Justice in Yang.
8) Remedy
- It is submitted that the appropriate remedy is to declare ss.
32(1)(a), 32(1)(b), 33 and 34 of the Extradition Act of
no force or effect pursuant to s.52 of the Constitution Act,
1982.
B) THE ORDER OF COMMITTAL
1) The Legal Framework
- The Federal Republic of Germany has requested the appellant's
extradition pursuant to the terms of the Treaty between Canada
and the Federal Republic of Germany Concerning Extradition
(C.T.S. 1979 No. 18).
- Article II of the Treaty provides as follows:
(1) Extradition shall be granted only in respect of
any act or omission that constitutes an offence set out
in the Schedule, provided that such act or omission is a
criminal offence punishable under the law of both Contracting
Parties.
(2) Extradition shall only be granted in respect of
an offence for the purpose of
(a) prosecution, where the offence is punishable
under the law of both Contracting Parties by deprivation
of liberty for a maximum period exceeding one year;
[. . .]
(3) Subject to paragraph (2) extradition shall also
be granted in respect of any attempt to commit, conspiracy
to commit or participation in an offence.
[. . .]
(5) The fact that an offence is described differently
by the law of the Contracting Parties shall be irrelevant
if the act or omission can be subsumed within the substance
of any offence set out in the Schedule.
By virtue of Article XXIX, "offence" for the purpose
of the treaty means any act or omission referred to in paragraphs
(1) or (3) of Article II. The Schedule referred to in paragraph
(1) of Article II lists thirty specific offences or types of offences.
It also includes "[a]ny other offence for which extradition
may be granted under the laws of the Contracting Parties."
- Article XIV of the Treaty provides, inter alia, as follows:
(1) The request for extradition shall be in writing
and shall be accompanied by
(a) all available information concerning the description,
identity and nationality of the person claimed;
(b) a description of the offence in respect of which
extradition is requested including the date and place
of its commission unless this information appears in
the warrant of arrest or in the sentence; and
(c) the text of all provisions of the law of the
requesting state applicable to the offence.
(2) A request for extradition for the purpose of prosecution
relating to a person charged with an offence or convicted
by reason of contumacy shall, in addition to the documents
required by paragraph (1), be accompanied by
(a) a warrant of arrest issued by a judge of the
requesting state; and
(b) such evidence as, according to the law of the
requested state, would justify the arrest and committal
for trial of the person claimed if the offence had been
committed in the requested state.
[. . .]
- The Treaty also incorporates the principle of speciality. Article
XXII provides as follows:
(1) A person who has been extradited under this treaty shall
not be prosecuted, punished or detained with a view to carrying
out a sentence for any offence committed prior to his surrender
other than that for which he was extradited, nor shall he be
for any other reason restricted in his personal freedom except
where
(a) the state which surrenders him consents; or
(b) having had the opportunity to lawfully leave
the state to which he was surrendered, he has not done
so within thirty days of his final discharge from custody
or, having left, he has returned to that state. A discharge
under an order of parole or probation which does not
restrict the freedom of movement of the person extradited
shall be deemed equivalent to a final dicharges.
Paragraphs (2) and (3) describe the means by which a request for
consent is to be made. Article XXII then continues:
(4) Instead of the offence for which he was extradited,
the person extradited may be prosecuted or sentenced for a different
offence, provided that it is based on the same facts as were
set out in the request for extradition and supporting documents
and that it is an offence referred to in Article II.
- In United States of America v. McVey, La Forest J. explained
the significance of the principle of specialty (in that case,
as set out in Article 12(1) of the Treaty on Extradition between
the Government of Canada and the Government of the United States
of America) as follows:
In short, [the person surrendered] can only be prosecuted by
the requesting state for the offence for which his surrender
was made. Anglin J. made this abundantly clear in Buck v.
The King (1917), 29 C.C.C. 45 at p.55, 38 D.L.R. 548 at
pp. 577-8, 55 S.C.R. 133, where, in dealing with the offences
for which a person who had been extradited to Canada could be
prosecuted, he stated:
. . . "the offence for which (the accused) was surrendered"
means the specific offence with . . . which he was charged
before the Extradition Commissioner [in the surrendering
state] and in respect of which that official held that a
prima facie case had been established and ordered
his extradition, and not another offence or crime, though
of identical legal character and committed about the same
time and under similar circumstances.
United States of America v. McVey, supra, at 21
- By virtue of Article XXVIII of the Treaty, except where the
treaty otherwise provides, "proceedings with regard to provisional
arrest, extradition and transit shall be governed solely by the
law of the requested state." The domestic law of Canada includes
not only the Extradition Act but also the common law and
the Charter. Indeed, as noted above, the entire extradition
process is subject to the Charter in that the treaty, the
extradition hearing in Canada and the exercise of executive discretion
to surrender the person sought all must conform to the requirements
of the Charter.
Schmidt v. The Queen (1987), supra, at 211-14
United States of America v. Burns (2001), 151 C.C.C.
(3d) 97 at 118 (S.C.C.)
United States of America v. Cobb, supra, at 281-82
- The prerequisites for extradition set out in the Treaty correspond
to various provisions in the Extradition Act. Section 3
of the Act states:
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.
(2) For greater certainty, it is not relevant whether
the conduct referred to in subsection (1) is named, defined
or characterized by the extradition partner in the same
way as it is in Canada.
(3) Subject to a relevant extradition agreement, the
extradition of a person who has been sentenced to imprisonment
or another deprivation of liberty may only be granted if
the portion of the term remaining is at least six months
long or a more severe punishment remains to be carried out.
- The foundation of the committal stage of the extradition process
is the authority to proceed issued by the Minister of Justice
pursuant to s.15 of the Act. Section 15 provides as follows:
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.
[. . .]
(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).
[. . .]
- The test for committal into custody to await surrender is set
out in s.29 of the Act. It provides as follows with respect to
a person who is sought for prosecution:
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;
[. . .]
(2) The order of committal must contain
(a) the name of the person;
(b) the offence set out in the authority to proceed
for which the committal is ordered;
(c) the place at which the person is to be held
in custody; and
(d) the name of the extradition partner.
(3) A judge shall order the person discharged if the judge
does not order their committal under subsection (1).
(4) The date of the authority to proceed is the relevant
date for the purposes of subsection (1).
[. . .]
- The Minister's authority to decide surrender is set out in ss.
40-48 of the Act. The principle of specialty is now enacted in
s.40(3), which provides:
(3) The Minister may seek any assurances that the Minister
considers appropriate from the extradition partner, or may subject
the surrender to any conditions that the Minister considers
appropriate, including a condition that the person not be prosecuted,
nor that a sentence be imposed on or enforced against the person,
in respect of any offence or conduct other than that referred
to in the order of surrender.
- Finally, as Vertes J. observed in his ruling on the constitutional
challenge, under s.3(1) of the Extradition Act, "a
person may be extradited from Canada in accordance with this Act
and a relevant agreement on the request of an extradition
partner" (emphasis added by Vertes J.). Vertes J. held that
this entails that the terms of the applicable treaty are relevant
in addition to the specific legislative provisions. "The
important point", Vertes J. held, "is that these proceedings
must comply with the provisions of both the Act and the treaty
so that if one imposes more restrictive requirements than the
other then those are the ones that must be satisfied. If, on the
other hand, the requirements are similar, then that may aid to
interpret the aims and objectives of the statutory provisions."
Reasons for Judgment released February 23, 2001
Appeal Book, Volume III, page 447
2) The Double Criminality Requirement Generally
- Several of the treaty and statutory provisions set out above
articulate the double criminality requirement. It is submitted
that this requirement — that the act or conduct charged in the
requesting state and for which extradition is sought be a crime
in both the requesting state and in Canada — is a fundamental
component of the legal regime governing extradition.
- The principle is stated explicitly in Article II(1) of the Treaty
and s.3(1)(b) of the Extradition Act. The clear import
of these provisions is that a person may not be extradited from
Canada unless it appears that the conduct charged, if it had taken
place in Canada, would have amounted to a crime under the laws
of this country. The rationale of the principle has been described
by I.A. Shearer in Extradition in International Law (1971)
as follows:
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 poena 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 principle of reciprocity 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. The point is by no means an academic one even
in these days of growing uniformity of standards; in Western
Europe alone sharp variations are found among the criminal laws
relating to such matters as abortion, adultery, euthanasia,
homosexual behaviour, and suicide.
In short, as the majority of the Supreme Court of Canada held in
Kindler v. Canada, "We will not extradite for acts which
are not offences in this country." Similarly, La Forest J.
held in United States of America v. Lepine that the underlying
reason for the principle of double criminality is "that no
one in Canada shall be surrendered for prosecution outside this
country for behaviour that does not amount to a crime in this country."
As Cory and Iacobucci JJ. expressed the same point in United
States of America v. Dynar:
One of the most important functions of the extradition
hearing is the protection of the liberty of the individual.
It ensures that an individual will not be surrendered for trial
in a foreign jurisdiction unless, as previously mentioned, the
Requesting State presents evidence that demonstrates on a prima
facie basis that the individual has committed acts in the
foreign jurisdiction that would constitute criminal conduct
in Canada.
United States of America v. McVey, supra, at
28
Kindler v. Canada (Minister of Justice), supra,
at 51
United States of America v. Lepine (1994), 87 C.C.C.
(3d) 385 at 391 (S.C.C.)
United States of America v. Dynar, supra, at
521
- It is submitted further that, as the Supreme Court held in United
States of America v. Allard and Charette, "a fugitive
may only be extradited if the act of which he is charged was a
crime recognized in Canada at the time it was committed."
This aspect of the double criminality principle is considered
further below.
United States of America v. Allard and Charette (1991),
64 C.C.C. (3d) 159 at 164 (S.C.C.)
- Under the Extradition Act, responsibility for ensuring
that the double criminality requirement is met falls upon both
the Minister of Justice and the judge before whom the committal
hearing is held. Looking only at the committal hearing for the
moment, the Supreme Court of Canada has recognized this hearing
as crucial for the protection of the liberty of the person sought
for extradition. La Forest J. held in Schmidt v. The Queen:
as Laskin J. noted in Commonwealth of Puerto Rico v. Hernandez
[citations omitted], concern for the liberty of the individual
has not been overlooked in these rather special proceedings.
That is why provision is made in the treaties and in the Extradition
Act to ensure that, before the discretion to surrender can
be exercised, a judicial hearing must be held for the purpose
of determining whether there is such evidence of the crime alleged
to have been committed in the foreign country as would, according
to the law of Canada, justify his or her committal for trial
if it had been committed here. If so, the judge commits the
fugitive for surrender, and the Executive may then exercise
its discretion to surrender; if not, he or she is discharged
(s.18 of the Act). The hearing is similar to a preliminary hearing,
the presiding judge being ordained by s.13 of the Act to hear
the case in the same manner, "as nearly as may be",
as at a preliminary hearing for a crime committed in this country.
The hearing thus protects the individual in this country
from being surrendered for trial for a crime in a foreign country
unless prima facie evidence is produced that he or she
has done something there that would constitute a crime mentioned
in the treaty if committed here.
In McVey, the extradition judge's role in determining whether
double criminality is present characterized as a "limited,
but critically important" function. Indeed, if the new rules
of evidence are constitutional, the extradition judge's responsibility
for protecting the liberty of the person sought now rests almost
entirely on the determinations of double criminality and the sufficiency
of the evidence under s.29(1) of the Act.
Schmidt v. The Queen, supra, at 208-09
United States of America v. McVey, supra at 526
United States of America v. Dynar, supra, at
521
- Section 29(1) of the new Extradition Act directs the
extradition judge to consider the conduct of the person sought.
This codifies the common law interpretation of s.18(1) of the
former Act, the predecessor to s.29(1). As La Forest J. explained
in McVey, a case concerning an extradition request from
the United States under the former Act:
The trial judge in the United States, of course, deals
with the offence under the law of that country. The identity
of that offence can be determined by reference to the text of
that law supplied with the requisition. The extradition judge
in Canada, on the other hand, is concerned with whether 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.
United States of America v. McVey, supra, at
21-22
- Similarly, in United States of America v. Lepine, La
Forest J. held that what s.18(1)(b) of the former Extradition
Act mandated the extradition judge to determine is
whether the evidence produced establishes a prima facie
case that would justify committal for trial "if the
crime had been committed in Canada" (emphasis added
[by La Forest J.]). McVey has held that the determination
of an extradition crime is conduct based. The question to be
asked, then, is whether, if the impugned acts or conduct had
been committed in Canada, they would constitute a crime here:
[references omitted].
United States of America v. Lepine, supra, at
391
- Section 29(1)(a) of the Extradition Act now makes the
authority to proceed main point of reference for the extradition
judge's inquiry. The extradition judge must ask: Is there evidence
admissible under the 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? Nevertheless, it is submitted
that the conduct charged by the requesting state cannot be ignored.
It is submitted that it is only by having reference to the conduct
charged in the requesting state that the extradition judge can
determine whether the evidence presented in support of the extradition
request meets the test for committal while also ensuring that
the principle of double criminality affords the requisite protection
to the liberty of the person sought.
- The extradition judge is not concerned with whether the conduct
charged in the requesting state is an offence there. This is to
be presumed. But he or she must determine whether the act or conduct
charged would be an offence in Canada if it had been engaged in
in Canada. This is the essence of the double criminality test.
- Courts have consistently held that the offence charged by the
requesting state need not bear the same name as or be described
in a manner identical to a comparable Canadian offence. This principle
is recognized expressly Article II(5) of the Treaty between
Canada and the Federal Republic of Germany Concerning Extradition
and in s.3(2) of the Extradition Act. Variations in how
an offence is defined or characterized in law will not defeat
extradition provided that the conduct underlying the charge would
be an offence in Canada. As La Forest J. observed in McVey,
"it is the essence of the offence which is important."
It is sufficient if the acts constituting the offence in the requesting
state would also amount to a crime in Canada if committed here.
Thus, for example, extradition may be granted for the offence
of engaging in a continuing criminal enterprise even though it
has no analogue in Canadian law when the conduct alleged to constitute
the offence (e.g. large-scale trafficking in a narcotic) would
be a crime under Canadian law if the conduct had taken place here:
see United States of America v. Whitley.
Re McVey, supra, at 39-40
Cotroni v. Attorney-General of Canada, [1976] 1 S.C.R.
219 at 222
United States of America v. Whitley, [1996] 1 S.C.R.
467, aff'g (1994), 94 C.C.C. (3d) 99 (Ont. C.A.)
La Forest, La Forest's Extradition To and From Canada
(3rd ed.) at 70-71
- It is submitted further that, as Proulx J.A. held in United
States of America v. Tavormina, it is necessary "to make
a distinction between the facts which generate the conduct charged
in the accusation and the circumstances surrounding the commission
of the act charged." Only the former may be considered in
determining whether the evidence presented meets the test for
committal.
United States of America v. Tavormina (1996), 112 C.C.C.
(3d) 563 at 569-70 (Que. C.A.)
United States of America v. Manno (1996), 112 C.C.C.
(3d) 544 at 550, 552-60 (Que. C.A.)
Contra: United States of America v. Drysdale (2000),
71 C.R.R. (2d) 133 (Ont. S.C.J.)
- This distinction is illustrated by the facts of Tavormina.
As Proulx J.A. explained:
In the case under discussion, the respondent is charged
in the United States with participating in two distinct conspiracies,
the first concerning the possession of cocaine for the purposes
of distribution, and the second concerning its importation
into the United States. In the context of the extradition proceedings,
the requesting state attempted to use the evidence of his participation
in the first in order to infer his participation in the second.
As I pointed out, paragraphs 25 and 27 of the affidavit of Mauricio
Reyes go into detail about the involvement of the respondent
in the conspiracy to possess for the purposes of trafficking.
His presence at the Days Inn Motel in Florida, his meeting with
Engel and Reyes, the instructions from Manno that he had to
wait for the arrival of the shipment, his undertaking to come
back and take possession of the merchandise later, etc. are
the facts in evidence which support the fugitive's committal
on the charge of conspiracy to possess for the purposes of distribution,
because the "facts underlying the charge" disclose
the commission of a Canadian offence, namely conspiracy to possess
for the purposes of trafficking: this issue was moreover settled
by the committal order rendered by the extradition judge.
That being said, I do not believe that the double criminality
rule permits an extradition judge to base his decision on evidence
of certain conduct and to order the fugitive committed for surrender
to the foreign state when this evidence has nothing to do with
the conduct charged in the accusation for which is extradition
is sought.
In other words, although specific acts can, on occasion,
indirectly support other charges, one must keep in mind that
they must be analyzed having regard to the conduct alleged in
the accusation. The link or connection of relevance is essential.
If one were to charge an accused with participating in a robbery,
the evidence which indicates that, at the time of his arrest,
he was in possession of counterfeit money is far from relevant.
Although this evidence may establish the commission of a crime
under Canadian law, it has no connection with the charge which
weighs against him in the foreign state and for which his extradition
is sought. It would be unfair, even illogical, to use such evidence
to order the committal of a fugitive for a specific crime knowing
quite well that the evidence of this crime is non-existent and
that he will be discharged on this charge after being deprived
of his liberty for an undetermined period of time. The role
of the extradition judge is exactly that, to protect the fugitive
against this kind of injustice.
United States of America v. Tavormina, supra,
at 569-70
- Alternatively, if this approach is no longer valid under the
new Act, then it is submitted that responsibility for ensuring
that there is a "link or connection of relevance" now
rests with the Minister of Justice, particularly in the drafting
of the authority to proceed. This submission is developed below.
But it remains the appellant's primary submission that the extradition
judge must have regard to the conduct charged in the requesting
state and that the principles developed under the old Act remain
valid. It is submitted that these principles are of particular
significance in the case at bar for two reasons. First, it is
submitted that the essence of the offence of membership in a terrorist
organization does not correspond to any criminal offence under
Canadian law. Second, the authority to proceed lists Canadian
offences that can only correspond to conduct which the requesting
state either is not prosecuting or cannot prosecute because of
limitation periods and with respect to which, therefore, the requesting
state is not seeking extradition. To demonstrate these points,
it is necessary to turn to the authority to proceed.
3) The Authority to Proceed and the Committal Decision
- On November 28, 2000, the Minister of Justice issued an authority
to proceed which listed the following offences as corresponding
to the alleged conduct in respect of which extradition is sought:
1) Aggravated assault upon Harald Hollenberg contrary
to section 268 of the Criminal Code; and
2) Conspiracy to commit aggravated assault upon Harald
Hollenberg contrary to section 465(1)(c) of the Criminal
Code; and
3) Aggravated assault upon Dr. Karl Gunter Korbmacher
contrary to section 268 of the Criminal Code; and
4) Conspiracy to commit aggravated assault upon Dr.
Karl Gunter Korbmacher contrary to section 465(1)(c) of
the Criminal Code; and
5) Placing an explosive substance with intent to destroy
or damage the property of the Central Social Relief Office
for Asylum Seekers (ZSA) contrary to section 81(1)(c) of
the Criminal Code; and
6) Conspiracy to place an explosive substance with intent
to damage or destroy the property of the Central Social
Relief Office for Asylum Seekers (ZSA) contrary to section
465(1)(c) of the Criminal Code; and
7) Placing an explosive substance with intent to destroy
or damage property, to wit: the Siegessaule column contrary
to section 81(1)(c) of the Criminal Code; and
8) Conspiracy to place an explosive substance with intent
to destroy or damage property, to wit: the Siegessaule column
contrary to section 465(1)(c) of the Criminal Code;
and
9) Possession of an explosive substance for the benefit
of, at the direction of or in association with a criminal
organization contrary to section 82(2) of the Criminal
Code; and
10) Participation in the activities of a criminal organization
contrary to section 467.1 of the Criminal Code.
In his decision released on September 6, 2001, Vertes J. ordered
committal in respect of all ten offences listed in the authority
to proceed. It is respectfully submitted that in doing so, Vertes
J. erred in several respects.
Authority to Proceed dated November 28, 2000
Appeal Book, Volume I, pages 1-2
Reasons for Judgment dated September 6, 2001
Appeal Book, Volume II, pages 682-700
Order of Committal dated September 6, 2001
Appeal Book (Judicial Review), pages 115-17
a) The Criminal Organization Offences and
s.29(4) of the Extradition Act
- Vertes J. held that s.29(4) of the Extradition Act permitted
him to order committal, should the evidence warrant it, on the
two criminal organization offences in the authority to proceed
even though the conduct allegedly engaged in by the appellant
occurred between 1985 and 1993 and the criminal organization offences
were not enacted in Canada until 1997. As noted above, s.29(4)
of the Extradition Act states: "The date of the authority
to proceed is the relevant date for the purposes of subsection
(1)." In effect, Vertes J. held that s.29(4) has reversed
the decision of the Supreme Court of Canada in United States
of America v. Allard and Charette and changed substantially
the double criminality requirement. It is respectfully submitted
that this conclusion cannot be supported.
- First, there is no indication that this was Parliament's intention.
If this was the purpose of s.29(4), it could have been stated
much more clearly. It is submitted that it is presumed that the
legislature does not intend to change existing law or to depart
from established principles, policies or practices. As Fauteux
J. held in Goodyear Tire & Rubber Co. of Canada v. T. Eaton
Co.:
a Legislature is not presumed to depart from the general system
of law without expressing its intentions to do so with irresistible
clearness, failing which the law remains undisturbed.
Similarly, in R. v. T.(V.), L'Heureux-Dubé J. held:
[W]hile it is open to Parliament . . ., subject to over-arching
constitutional norms, . . . to change the law in whatever way
it sees fit, the legislation in which it chooses to make these
alterations must be drafted in such a way that its intention
is in no way in doubt.
Goodyear Tire & Rubber Co. of Canada v. T. Eaton Co.,
[1956] S.C.R. 610 at 614
R. v. T.(V.) (1992), 71 C.C.C. (3d) 32 at 42-43 (S.C.C.)
R. v. McIntosh (1995), 95 C.C.C. (3d) 481 at 504-05
(S.C.C.)
Sullivan, Driedger on the Construction of Statutes (3rd
ed.) at 368-69
- Second, as Cory and Iacobucci JJ. held in R. v. Gladue:
"the proper construction of a statutory provision flows from
reading the words of the provision in their grammatical and ordinary
sense and in their entire context, harmoniously with the scheme
of the statute as a whole, the purpose of the statute, and the
intention of Parliament." In this respect it is significant
that, while s.29 of the Extradition Act effects certain
procedural changes, it otherwise leaves the substance of the test
for committal unchanged from the old Act and judicial interpretations
of it. Moreover, the double criminality principle is also stated
elsewhere in the Act and there is nothing to indicate there that
it bears this new meaning. For example, s.3(1)(b) of the Act identifies
one of the prerequisites to extradition as being that "the
conduct of the person, had it occurred in Canada, would have constituted
an offence that is punishable in Canada" by certain maximum
terms of imprisonment. Nowhere does the Act say that any date
other than when the conduct is alleged to have occurred is to
be considered under s.3(1) in determining whether that conduct
would have constituted an offence in Canada. The terms of the
Treaty are to the same effect. It is submitted that Vertes J.'s
interpretation of s.29(4) creates an obvious inconsistency between
s.29(4) and other parts of the statute (which also incorporates
the terms of the Treaty).
R. v. Gladue (1999), 133 C.C.C. (3d) 385 at 397-98 (S.C.C.)
Bell ExpressVu Limited Partnership v. Rex, 2002 SCC
42 at 26
- Alternatively, it may be that Vertes J.'s interpretation of
s.29(4) is the only one it can reasonably bear. As LeBel J. observed
in R. v. Fink with respect to the process of statutory
interpretation:
The interpreter looks first at the purpose of the statute as
this Court held in the well-known and oft-cited Rizzo &
Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21 (see
also Bell Express Vu Limited Partnership v. Rex, 2002
SCC 42, at para. 26). Given this overriding principle, if there
is ambiguity, the interpreter then looks for an interpretation
that will save the law rather than render it unconstitutional.
However, if no reasonable interpretation that is consistent
with the purpose and wording of the Act can be found, the statute
will be held invalid. In the course of such an analysis, courts
must remember that constitutionality is presumed and that invalidity
must be shown. Nevertheless, ambiguity may not be artificially
created in order to save a statute.
R. v. Fink ( 2002), 167 C.C.C. (3d) 1 at 39-40 (S.C.C.)
Bell ExpressVu Limited Partnership v. Rex, supra,
at paras. 26-30
- If Vertes J. is correct that Parliament did seek to change the
double criminality rule with the enactment of s.29(4) of the Extradition
Act, then it is submitted that the provision is unconstitutional
because it infringes s.7 of the Charter. It is submitted
that it is a principle of fundamental justice that, as set out
above, no one may be extradited from Canada for conduct which,
had it occurred in Canada, would not have been a criminal offence.
Moreover, if adopted, Vertes J.'s interpretation of s.29(4) yields
the untenable result that a person could be committed into custody
to await surrender even though he or she was not extraditable
under either the Act or the Treaty because, at the time it occurred,
the conduct was not an offence in Canada. There is no compelling
justification for such a limitation on the rights guaranteed by
s.7 which could make this one of those rare cases where a violation
of s.7 is justifiable under s.1 of the Charter. It is submitted
further that the appropriate remedy pursuant to s.52 of the Constitution
Act and s.24(1) of the Charter is to sever s.29(4)
from the remainder of s.29.
- On the basis of the foregoing, it is submitted that Vertes J.
erred in committing the appellant for extradition on the two criminal
organization offences listed in the authority to proceed. These
committals should be set aside on the ground of a wrong decision
on a question of law pursuant to s.53(a)(ii) of the Extradition
Act.
b) The Offence of Membership
- It is submitted that the essence of the conduct charged in the
requesting state under s.129a is membership or association. No
such offence is recognized in Canadian law. It is submitted that
the evidence of the conduct underlying the s.129a offence cannot
support committal on any of the offences listed in the authority
to proceed.
- c) The Shootings
- As stated above, the appellant cannot be prosecuted for his
alleged involvement in the 1986 shooting of Hollenberg or the
1987 shooting of Dr. Korbmacher because prosecution is now barred
by the expiry of limitation periods. As a result, the requesting
state is not seeking the appellant's extradition for any offence
substantially similar to the offences in relation to Hollenberg
and Dr. Korbmacher set out in the authority to proceed. Moreover,
while the shooting incidents are described in the context of the
narrative setting out the appellant's alleged activities in connection
with his membership in the Revolutionary Cells, the offence of
membership in a terrorist organization is particularized in the
material submitted in support of the extradition request by reference
only to offences related to arson and the use of explosives. There
is no reference to any offence involving acts of violence against
persons (e.g. the offences committed in the attacks on Hollenberg
and Dr. Korbmacher) even though such offences could be incorporated
into the membership offence. Applying the distinction drawn in
Tavormina between "the facts which generate the conduct
charged in the accusation and the circumstances surrounding the
commission of the act charged" and following the "link
or connection or relevance" between the evidence and the
conduct charged, it is submitted that there is no basis upon which
the appellant could be committed for surrender on any of the offences
listed in the authority to proceed relating to Hollenberg or Dr.
Korbmacher. The committal order in respect of these offences should
be set aside on the ground that it is unreasonable or cannot be
supported by the evidence or on the ground of a wrong decision
on a question of law pursuant to s.53(a)(i) and (ii), respectively.
d) The Explosives Offences
- The appellant concedes that the four offences in the authority
to proceed relating to the use of explosives against the Central
Social Relief Office for Asylum Seekers and the Siegessaule column
correspond to conduct charged in the requesting state and, subject
to the constitutional challenge to the evidentiary provisions
in the Extradition Act, also concedes that there is sufficient
admissible evidence to warrant committal for surrender in relation
to these offences.
4) Conclusion
- For the foregoing reasons, the appellant respectfully submits
that Vertes J. erred in committing him for surrender on all the
offences listed in the authority to proceed. The committals on
all offences except those in relation to the use of explosives
against the Central Social Relief Office for Asylum Seekers and
the Siegessaule column should be set aside.
- Alternatively, if, contrary to the appellant's primary position,
the extradition judge is required to ignore the foreign charges
and may only consider the Canadian offences listed in the authority
to proceed, then the appellant submits that it falls to this Honourable
Court, in the exercise of its powers of judicial review over the
Minister of Justice, to determine whether the authority to proceed
issued in the case at bar was in compliance with s.15 of the Extradition
Act. Specifically, do the offences listed therein "correspond
to the alleged conduct" in respect of which extradition has
been requested? This submission is developed below.
C) THE APPLICATION FOR JUDICIAL REVIEW
1) The Scope and Standard of Judicial Review under the Extradition
Act
- The appellant has applied pursuant to s.57 of the Extradition
Act for judicial review of the surrender decision of the Minister
of Justice. The surrender decision is the culmination of the discharge
of the Minister's responsibilities in the extradition process.
The Minister is responsible for the implementation of extradition
agreements, the administration of the Extradition Act and
dealing with requests for extradition. The Minister must determine
whether a foreign request for extradition or for the provisional
arrest of a person meets the statutory and treaty prerequisites
and, if so, for launching a process that can have profound implications
for the liberty of the person sought. The Minister must be satisfied
that the conditions in s.3(1)(a) of the Extradition Act
are met before issuing an authority to proceed. Once the judicial
phase has concluded with an order for committal, the matter returns
to the Minister for his decision on whether the statutory and
treaty prerequisites for surrender have been met.
- The application for judicial review is brought with respect
to the surrender order. It is submitted, however, that the decision
to authorize the application for a provisional arrest warrant
and the framing of the authority to proceed are legal pre-conditions
to the ultimate surrender decision and can be reviewed by this
Honourable Court in an application for judicial review of the
surrender decision. Otherwise these executive acts are immune
from judicial review.
- Pursuant to s.57(6), on an application for judicial review,
this Honourable Court may
(a) order the Minister to do any act or thing that the
Minister has unlawfully failed or refused to do or has unreasonably
delayed doing; or
(b) declare invalid or unlawful, set aside, set aside
and refer back for determination in accordance with any
directions that it considers appropriate, prohibit or restrain
the decision of the Minister referred to in subsection (1)
[i.e. the surrender decision made under s.40].
- Pursuant to s.57(7) of the Extradition Act, the grounds
for granting such relief are those enumerated in s.18.1(4) of
the Federal Court Act, namely that the Minister has
(a) acted without jurisdiction, acted beyond his jurisdiction
or refused to exercise his jurisdiction;
(b) failed to observe a principle of natural justice,
procedural fairness or other procedure that he was required
by law to observe;
(c) erred in law by making a decision or an order, whether
or not the error appears on the face of the record;
(d) based his decision or order on an erroneous finding
of fact that he made in a perverse or capricious manner
or without regard for the material before him;
(e) acted, or failed to act, by reason of fraud or perjured
evidence; or
(f) acted in any other way that was contrary to law.
- In addition, the Minister is required to respect the constitutional
rights of the person sought for extradition in deciding whether
to exercise his discretion to surrender the person to the requesting
state. In the event that the ministerial decision to surrender
were to violate the Charter rights of the person sought,
this Honourable Court is the "court of competent jurisdiction"
in which the claim of a constitutional infringement is to be taken
up. This Honourable Court has an original jurisdiction to receive
evidence relevant to an alleged Charter violation, to determine
whether a Charter violation has occurred and, if one has
occurred, to grant the appropriate and just remedy.
United States of America v. Kwok (2001), 152 C.C.C.
(3d) 225 at 256-62 (S.C.C.)
- The standard of review of the Minister's decision has been set
to give due deference to the exercise of executive discretion
in the discharge of Canada's international obligations. Even so,
where the Minister has violated the constitutional rights of the
person sought or otherwise erred in law, has denied the person
sought procedural fairness, has acted arbitrarily, in bad faith
or for improper motives, or has made a decision that is plainly
unreasonable, the reviewing court is entitled to intervene. These
grounds of review are codified in s.57(7) of the new Act. Moreover,
while ministerial decisions are generally owed curial deference,
much less deference is required for decisions concerning the violations
of constitutional rights.
Schmidt v. The Queen, supra, at 215
Kindler v. Canada, supra, at 55 per McLachlin
J. (as she then was); at 13-14 per La Forest J.
United States of America v. Whitley (1994), 94 C.C.C.
(3d) 99 at 108-110 (Ont. C.A.); aff'd (1996), 104 C.C.C. (3d)
447 (S.C.C.)
United States of America v. Burns, supra, at
118-19
Pacificador v. Canada (Minister of Justice) (2002),
166 C.C.C. (3d) 321 at 337-39 (Ont. C.A.)
2) The Decision to Authorize the Application for
a Provisional Arrest Warrant
- Upon receipt of a request for the appellant's extradition, the
Minister authorized the Attorney General pursuant to s.12 of the
Extradition Act to apply for a provisional arrest warrant
in respect of the appellant. Section 12 states:
12. The Minister may, after receiving a request by an
extradition partner for the provisional arrest of a person,
authorize the Attorney General to apply for a provisional
arrest warrant, if the Minister is satisfied that
(a) the offence in respect of which the provisional
arrest is requested is punishable in accordance with
paragraph 3(1)(a); and
(b) the extradition partner will make a request
for the extradition of the person.
- By diplomatic notes dated May 1, 2000, and May 3, 2000, the
Federal Republic of Germany had requested the "provisional
arrest of Walter Lothar Ebke in view of his possible extradition."
Under both the Act and the Treaty, a person's extradition may
be requested for one of two purposes: for the purpose of prosecuting
the person or for the purpose of imposing or enforcing a sentence
in respect of the person. Clearly the request in the case at bar
is not for the purpose of imposing or enforcing a sentence. The
request must therefore be for the purpose of prosecuting the appellant.
It is submitted that the Minister erred in determining that this
was the case. On the contrary, it is submitted that the request
was for the purpose of effecting the appellant's transfer to the
requesting state so that further investigations into his suspected
involvement in certain offences could be pursued. It is submitted
that the requirements of the Act and the Treaty were not met and,
further, that the decision to seek the appellant's arrest on the
grounds then available resulted in a violation of the appellant's
rights under ss. 7 and 9 of the Charter.
- The original request for extradition was supported by the German
Warrant of Arrest dated March 9, 2000. It is apparent on the face
of that document that the requesting state seeks the appellant's
detention "pending further investigations", that the
appellant is "strongly suspected" and "urgently
suspected". The prosecutor's summary of the case speaks of
the matter as "investigation proceedings against Walter Lothar
Ebke because of suspicion."
Exhibit 7 - Arrest Warrant
Appeal Book, Volume II, pages 460-61, 472-73
- The provisional arrest warrant was issued on May 18, 2000. The
certification of the record of the case that was prepared subsequently
does speak of the purpose of the request as being "for prosecution".
It is submitted that this statement, which simply tracks the requirements
of s.33(1) of the Act, does not assist for two reasons. First,
it was not before the Minister when the original decision was
made to seek the appellant's arrest. Second, in any event its
probative value is lessened not only by the conflicting statements
elsewhere in the supporting materials but also by the fact that,
even as of May 22, 2001, no charges against the appellant had
been filed in the German court. It is submitted that the weight
of the evidence indicates that the appellant is wanted merely
for investigation and only on the basis of suspicion.
Exhibit 11 - Record of the Case
Appeal Book, Volume II, pages 587-88
Exhibit 12 - Affidavit of Martin Rubbert
Appeal Book, Volume II, pages 646-50
- It is submitted that this is not a purpose that the law of extradition
is intended to serve. As reflected in s.3(1) of the Extradition
Act, the extradition process serves as a mechanism for removing
someone from Canada to a foreign jurisdiction "for the purpose
of prosecuting the person or imposing a sentence on or enforcing
a sentence imposed." While there may be no need for a prosecution
actually to be commenced in the requesting state before extradition
proceedings can be launched in Canada, it is submitted that prosecution
must be imminent or, at least, intended. If that is not demonstrated,
extradition proceedings, which entail a significant deprivation
of liberty, ought not to be engaged.
- This argument was made before Vertes J. as part of an application
for a stay of proceedings. Vertes J. rejected the argument, holding
as follows:
On this issue I agree with counsel for the Attorney General.
It would not be warranted to conclude, merely from an examination
of the wording of the German documents, that Ebke is wanted
just for investigation purposes. More importantly, this is not
an issue that is within my statutory mandate as the extradition
judge to decide. In my opinion, any determination as to the
"purpose" for the extradition request or the request
for the arrest warrants rests with the Minister. There is nothing,
in the Act or otherwise, to suggest that the extradition judge
has jurisdiction to determine whether someone is a person sought
for the "purpose of prosecution" or to review the
decision of the Minister in this regard.
Reasons for Judgment released September 6, 2001
Appeal Book, Volume II, pages 661-62
- Assuming that Vertes J. is correct in this regard, it is submitted
that it therefore falls to this Honourable Court to determine
whether the Minister erred in approving the initiation of the
extradition proceedings on the basis of the material before her
and, in any event, whether the appellant's arrest on the basis
of mere suspicion and for the purpose of further investigation
infringed ss. 7 and 9 of the Charter. In the circumstances,
the only appropriate and just remedy is a stay of the extradition
proceedings.
3) The Authority to Proceed
- As described above, on November 28, 2000, the Minister of Justice
issued an authority to proceed in respect of the appellant pursuant
to s.15 of the Extradition Act If, contrary to the appellant's
submissions above, the extradition judge must limit him or herself
to the authority to proceed and may not consider what conduct
has actually resulted in charges in the requesting state, then
it is submitted that it is incumbent upon the Minister to draft
the authority to proceed in a way that accurately and fairly reflects
the alleged conduct in the requesting state in respect of which
extradition is sought. To paraphrase Proulx J.A.'s comments in
Tavormina, although the evidence may establish the commission
of one or more crimes under Canadian law, it would be "unfair,
even illogical" to list Canadian offences in the authority
to proceed which have no connection with the charges that weigh
against a person in the foreign state and for which his extradition
is sought. Here, as noted above, the authority to proceed lists
Canadian offences which correspond to conduct which the requesting
state either has not charged or cannot charge because of the expiry
of limitation periods. Given the central role of the authority
to proceed, these offences have no place therein. If it is no
longer for the extradition judge to screen out such charges and
protect a person sought from the injustice that would flow from
committal upon them, then this role must be performed by the Minister
at the outset of the extradition process. It is submitted that
the Minister failed to do so here and this tainted the entire
proceeding that followed. The surrender decision should therefore
be set aside.
4) The Membership in a Terrorist Organization Offence
- In United States of America v. Drysdale, Dambrot J. observed
that "while the rule of double criminality is preserved by
the new Act, the extradition judge is not its sole guardian. The
extradition judge has a modest role to play in ensuring that the
rule is respected. The minister has a significant role. In the
end, the appellate courts have the final word."
United States of America v. Drysdale, supra,
at 156-57
- It is submitted that in ensuring that the rule of double criminality
is respected, the Minister must have regard to s.3(1)(b) of the
Act as well as, in the case at bar, Article II(2)(a) of the Treaty.
As developed above, it is submitted that, whatever may be import
of s.29(4) of the Act for the extradition judge, the rule of double
criminality that the Minister must apply has not been modified
by the new Act. In particular, the principle in Allard and
Charette that a person "may only be extradited if the
act of which he is charged was a crime recognized in Canada at
the time it was committed" still applies. Accordingly, it
is submitted that the Minister erred in law in ordering the appellant's
surrender on the offence under s.129a of the German Code because
the acts of which the appellant is charged in respect of that
offence were not a crime recognized in Canada at the time they
were committed.
United States of America v. Allard and Charette, supra,
at 164
5) The Political Offence Exception
- The extradition request is based in part on the allegation that
between 1985 and 1993 the appellant was "a member of an organization
whose aim and activities are directed toward committing criminal
acts causing public danger pursuant to sections 306 to 308 and
section 311 of the German Penal Code." As particularized,
the activities of the organization in which the appellant is alleged
to have been involved are directed toward committing offences
relating to arson and causing explosions. If proven, membership
in such an association is an offence contrary to section 129a
of the German Penal Code. That provision states in part:
(1) Whoever sets up an organization whose purpose or
activity consists in the commission of:
1. murder, manslaughter or genocide (sections 211,
212 or 220a)
2. criminal acts directed against person freedom
in the cases of Section 239a or Section 239b or
3. crimes falling under Section 305a or crimes endangering
the public falling under Sections 306 to 308, 310b Subsection
1, Section 311 Subsection 1, Section 311a Subsection
1, Sections 312, 315 Subsection 1, Section 316b Subsection
1, Section 316c Subsection 1 or Section 319
or whoever participates as a member in such an organization
shall be punished by imprisonment of between one and ten
years.
(2) If the perpetrator is a ringleader or supporter,
imprisonment of not less than three years shall be imposed.
(3) Whoever supports or recruits for an organization
described in Subsection 1 shall be punished by imprisonment
from six months to five years.
General Legal Declaration of Michael Bruns dated June 21,
2000
Appeal Book (Judicial Review), pages 195-98
- Section 44(1)(b) of the Extradition Act states that,
among other things, the Minister shall refuse to make a surrender
order if the Minister is satisfied that the request for extradition
is made for the purpose of punishing the person by reason of their
political opinion. In addition, s.46 of the Extradition Act
states in part as follows:
(1) The Minister shall refuse to make a surrender order
if the Minister is satisfied that
. . .
(c) the conduct in respect of which extradition
is sought is a political offence or an offence of a
political character.
(2) For the purpose of subparagraph (1)(c), conduct
that constitutes an offence mentioned in a multilateral
extradition agreement for which Canada, as a party is obliged
to extradite the person or submit the matter to its appropriate
authority for prosecution does not constitute a political
offence or an offence of a political character. The following
conduct also does not constitute a political offence or
an offence of a political character:
(a) murder or manslaughter;
(b) inflicting serious bodily harm;
(c) sexual assault;
(d) kidnapping, abduction, hostage-taking or extortion;
(e) using explosives, incendiaries, devices or substances
in circumstances in which human life is likely to be
endangered or serious bodily harm or substantial property
damage is likely to be caused; and
(f) any attempt or conspiracy to engage in, counselling,
aiding or abetting another person to engage in, or being
an accessory after the fact in relation to, the conduct
referred to in any of paragraphs (a) to (e).
- Finally, Article III of the Treaty provides:
(1) Extradition may be refused if
(a) the offence in respect of which it is requested
is considered by the requested state to be a political
offence;
or
(b) the requested state considers that the request
for extradition has been made for the purpose of prosecuting
or punishing a person on account of his race, religion,
nationality or political opinion or that his position
would be prejudiced for any of those reasons.
(2) For the purpose of this treaty, a murder, kidnapping
or other wilful assault on the life or physical integrity
of a person in relation to whom the Contracting Parties
have or the requesting state has a duty according to international
law to give special protection shall be deemed not to be
a political offence.
- It is submitted that, as Vertes J. held, the provisions of both
the Act and the Treaty must be considered and if they differ,
the more stringent conditions must be satisfied before extradition
may be ordered. Thus, it is submitted that the Minister erred
in holding that he need only consider the terms of the Treaty
on the question of political offences.
- In light of s.46(2)(e) and (f) of the Act, the appellant does
not contend that the conduct alleged in relation to the 1987 bombing
is a political offence or an offence of a political character.
It is submitted, however, that the conduct alleged in relation
to the 1991 attempted bombing and the s.129a offence (membership
in a terrorist association) are political offences or offences
of a political character and, further, that the request for extradition
in respect of the latter allegation is made for the purpose of
prosecuting the appellant by reason of his political opinion.
It is submitted that the Minister erred in declining to refuse
surrender in relation to these allegations (assuming for the sake
of this argument that the s.129a offence meets the double criminality
requirement).
- Under the Treaty, it is for the Canadian authorities to determine
whether the offence in respect of which extradition is requested
is a political offence and whether the request for extradition
has been made for the purpose of prosecuting or punishing the
appellant on account of his political opinion. The jurisprudence
as well as ss. 44(1)(b) and 46(1)(c) of the Extradition Act
suggest that these determinations are to be made by the Minister.
These determinations are, of course, subject to judicial review
by this Honourable Court.
- It is submitted that neither s.129a nor the 1991 attempted bombing
are excluded from the category of political offences or offences
of a political character by either the statute or the treaty.
While the attempted bombing of the Victory Column did involve
the use of explosives, it is submitted that it nevertheless does
not fall within either s.46(e) or (f) of the Extradition Act
because there is no basis upon which to conclude that, even if
it had been successful, it was carried out in circumstances in
which human life is likely to be endangered or serious bodily
harm or substantial property damage is likely to be caused. There
is no evidence of the property damage that might have been caused
and, with regard to the risk to life or safety, it is to be noted
that the explosion occurred in the early morning hours during
a period when public access to the monument was blocked off because
of ongoing renovations. As for the s.129a offence, it does not
engage any of the excluded offences.
- "Political offence" and "offence of a political
character" are not defined in the Extradition Act
or the treaty. Anne Warner La Forest explains the notion of a
"political offence" as follows:
Although the terminology of "political offence"
is widespread, a satisfactory definition remains to be formulated.
The term embraces two concepts: first, the purely political
offence, which is an act directed against the political organization
or government of a state and contains no element of common crime;
and secondly, what is described in the Act as an offence of
a political character, one that is a common crime but is so
closely integrated with political acts or events that it is
regarded as political.
While La Forest was writing with the previous Extradition Act
in mind, the distinction she draws still obtains in s.46(1)(c) of
the new Extradition Act. It is submitted that the 1991 attempted
bombing and the s.129a offence fall within one or the other of these
sub-categories.
La Forest, La Forest's Extradition To and From
Canada (3rd ed.) (1991) at 83 (references omitted)
- First, it is submitted that the s.129a offence is a purely political
offence. La Forest describes this type of offence as follows:
The purely political offences create no problem since they
are easily identified as being against the security of the state
and are generally limited to three categories of acts: treason,
sedition and espionage. These are obviously political. As such,
they injure only public rights and contain no element of common
crime. The perpetrator is motivated by a political purpose.
He often acts as an instrument or agent of a political party.
Malice or personal vendetta against some individual is not the
motivating factor.
It is submitted that this description fits s.129a, at least as
it is being applied to the appellant, almost perfectly. Apart from
the suggestion that generally only treason, sedition and espionage
are so classified, all of the other features identified by La Forest
are present here. By definition, s.129a applies only to "membership"
in "organizations". On the requesting state's own evidence,
the Revolutionary Cells was an overtly political group acting against
the German government of the time. The appellant's alleged motivation
for being a member of the Revolutionary Cells was also clearly political.
The offence of membership — as distinguished from serious substantive
offences that might be carried out under the auspices of the organization
— at worst injures only public rights and contains no element of
common crime.
La Forest, La Forest's Extradition To and From
Canada (3rd ed.) (Canada Law Book, 1991) at 83-84
(references omitted)
- It is submitted further that additional support for classifying
s.129a as a political offence may be found in the fact that it
was first introduced in response to a political crisis in Germany
in the 1970's, that it is only used against groups espousing political
objectives and that it has been used overwhelmingly against left-wing
groups critical of the German government. In this connection it
should be noted that German law draws a distinction between the
offence of membership in a criminal organization (s.129) and the
offence of membership in a terrorist organization (s.129a). It
is the latter, not the former, that the appellant is "strongly
suspected" of having committed.
- In the alternative, if the s.129a offence is not a political
offence per se, it is submitted that this can only be because
it contains an element of common crime. But even if that is the
case, it is submitted that it should still be characterized as
an offence "of a political character" and, thus, as
falling within s.46(1)(c) of the Extradition Act. Similarly,
while the 1991 attempted bombing cannot be characterized as a
political offence per se, it is submitted that it is an
offence of a political character. It is submitted that the Minister
erred in concluding otherwise.
- There is no exhaustive definition of what it is to be an offence
of a political character but several common themes that emerge
from the jurisprudence are present in the case at bar. Crucially,
on the requesting state's own evidence, the offences alleged had
clear political motives. The organization in which membership
is alleged was overtly and expressly dedicated to attempting to
force the German government of the day to change its policies
on matters of public interest and, indeed, to challenging the
government itself. While the appellant concedes that the 1987
bombing is excluded by statute from the category of offences of
a political character, this is not the case with the attempted
bombing or the s.129a offence. Membership in the Revolutionary
Cells was a political act aimed directly at the German government
and its policies. It is submitted that the same is true of the
attempted bombing of the Victory Column.
- In the further alternative, if surrender is not precluded by
s.46(1)(c) of the Extradition Act, the foregoing submissions
demonstrate that the Minister nevertheless erred in declining
to refuse surrender under s.44(1)(b) of the Act on the basis that
the request for extradition is made for the purpose of prosecuting
or punishing the appellant by reason of his political opinion.
The request in relation to the s.129a offence in particular is
not founded on the enforcement of the criminal law in its ordinary
aspect but is directed instead to the prosecution and punishment
of political opinion.
6) Section 44(1)(a) of the Extradition Act
- Section 44(1)(a) of the Extradition Act provides that
the Minister shall refuse to make a surrender order if the Minister
is satisfied that "the surrender would be unjust or oppressive
having regard to all the relevant circumstances." It is submitted
that the Minister erred in declining to refuse surrender on this
basis. Among the circumstances that the appellant relied on before
the Minister to demonstrate that surrender would be unjust or
oppressive were his personal circumstances, including the strong
community support he enjoys; the dubious nature of the evidence
presented in support of the extradition request; and the troubling
history of the proceedings against his alleged confederates. In
such circumstances, surrender must be refused.
7) The Need for Assurances
- If, contrary to the foregoing submissions, it was open to the
Minister to order the appellant's surrender on some or all of
the offences for which extradition has been requested, it is submitted
that the Minister erred in declining to make surrender conditional
upon charges first being laid in the requesting state and upon
receipt of satisfactory assurances from the requesting state that
the appellant will not be denied reasonable bail and that he will
receive a fair and speedy trial. The history of the ongoing proceedings
in Germany raises a serious concern that, if surrendered, the
appellant will not be treated fairly and in accordance with the
principles of fundamental justice without such assurances. It
is submitted that the Minister erred in concluding otherwise.
PART IV - NATURE OF RELIEF DESIRED
- The appellant respectfully requests the following relief:
(a) with respect to the appeal from the committal order
(i) an order declaring ss. 32(1)(a), 32(1)(b), 33
and 34 of the Extradition Act of no force or
effect pursuant to s.52 of the Constitution Act;
(ii) if necessary, an order declaring s.29(4) of
the Extradition Act of no force or effect pursuant
to s.52 of the Constitution Act or an order severing
it from the balance of the provision pursuant to s.24(1)
of the Charter;
(iii) further, or in the alternative, an order setting
aside the committal on the criminal organization offences
listed in the authority to proceed (s.467.1 and s.82(2)
of the Criminal Code);
(iv) further, or in the alternative, an order setting
aside the committal on all offences in the authority
to proceed pertaining to Harald Hollenberg and Dr. Karl
Gunter Korbmacher; and
(b) with respect to the application for judicial review
(i) an order staying the proceedings against the
appellant pursuant to s.24(1) of the Charter;
(ii) in the alternative, an order declaring invalid
or unlawful, quashing or setting aside the surrender
decision made by the Minister of Justice in respect
of all offences for which extradition is sought.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
D A T E D at Toronto, Ontario, this 29th day of
November, 2002.
______________________
JOHN NORRIS
Ruby & Edwardh
Barristers
11 Prince Arthur Avenue
Toronto, Ontario
M5R 1B2
Tel. (416) 964-9664
Fax (416) 964-8305
Of counsel for the Appellant
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