April 15, 2019
Marcotte, Hogue, Rancourt
Application for judicial review of a decision by the Minister of Justice of Canada dismissing the applicant’s request to reconsider the previous Minister’s decision and ordering her extradition to the United States. Dismissed, with dissenting reasons.
The applicant is facing extradition proceedings following criminal charges of child abduction in contravention of a custody order filed against her in the state of Georgia. She appealed the committal and surrender orders issued by the Minister of Justice at the time all the way up to the Supreme Court of Canada. There she argued that the defence of necessity, under which the acts committed were necessary to protect her children from imminent harm, had no equivalent in Georgia, which contravenes the fundamental principle of double criminality. The Supreme Court proposed an analytical framework and established the three conditions that must be met before the unavailability of a defence could engage the Minister’s refusal to extradite: 1) the defence is available in Canada, but not in the requesting state; 2) there is a reasonable prospect of success were the defence to be raised in Canada for the alleged conduct; and 3) the difference between the laws of the two countries leads to a significantly greater jeopardy in the requesting state. The Supreme Court, however, felt that the applicant did not satisfy these conditions and that the Minister’s decision to extradite was justified. Asked by the applicant to reconsider her predecessor’s decision based on this new analytical framework, the Minister upheld the extradition order.
Marcotte J.A., with whom Hogue J.A. concurs: The applicant failed to convince the Minister that a defence equivalent to the qualified defence of necessity under s. 285 of the Criminal Code (R.S.C. (1985), c. C-46) does not exist in the requesting country. Indeed, even if the defence of justification available in Georgia does not apply solely to child abduction cases, it is not unreasonable to believe that it could be raised in this case. Moreover, the applicant failed to convince the Minister that there is a reasonable prospect the defence of necessity will be successful in Canada. In such circumstances, the Minister did not have to analyze the condition of significantly greater jeopardy. The Minister had to weigh the applicant’s situation, the consequences of extradition, the seriousness of the offence, as well as the importance of Canada’s compliance with its international obligations, and her decision is owed deference.
Rancourt J.A., dissenting: The application for judicial review should be granted. The surrender order should be set aside and the file reverted to the Minister of Justice so that he may determine whether the difference between the laws of the two countries leads to a significantly greater jeopardy for the applicant in the requesting state and, in the affirmative, examine the potential differences in defences along with all the other relevant considerations in deciding whether to order her surrender.
*Summary by SOQUIJ
Text of the decision:
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