DesFossés v. Canada ( Minister of Justice )
T-1945-95
Dubé J.
16/10/96
21 pp.
Application for order quashing extradition order to United States of America and for discharge from Parthenais institution under Charter, s. 24(1)-Applicant wanted in Florida on five major charges, including murder in first degree-In habeas corpus proceedings, Canadian judges determined fugitive person sought by requesting state, offence extradition crime and sufficient evidence to warrant committal-Two distinct phases in extradition process: first, judicial phase where extradition judge determines whether or not factual and legal basis for warrant of committal; second phase political, wherein Minister must weigh representations of fugitive against Canada's international treaty (Treaty on Extradition between Canada and United States of America) obligations-Question whether grounds raised by application for judicial review of Minister's decision constitute "cases of real substance"-Application dismissed-Extradition judge did not comply with statutory requirements to forthwith send report together with certified copies of evidence and foreign warrrant information or complaint to Minister of Justice and to transmit to Minister certificate of committal, with copy of all evidence-However, nothing in Act failure to transmit documents ground for quashing order or surrender-Failure to send report on case not case of real substance sufficient to vitiate Minister's decision as Minister had most relevant documents-No basis to argument agent of Attorney General of Canada not duly retained by Government of United States as long standing practice such agents represent requesting state in extradition proceedings-No basis to argument agent of requesting state acted in biased manner by not presenting all evidence as no obligation on requesting state to do so-Required to produce sufficient evidence to mount prima facie case-Allegation affiant may have perjured himself irrelevant in so far as Minister concerned; matter relevant in context of eventual trial-Allegation offence (felony murder) with which applicant charged in U.S. no longer crime in Canada without basis-Treaty, Art. 2 not dealing with name of alleged offence but with conduct of fugitive-Also, existence of double criminality matter to be decided by extradition judge, not by Minister-As to issue of whether warrant of committal defective, Minister without authority to review warrant issued by extradition judge and Federal Court without jurisdiction to review decision of Quebec Superior Court-Allegation of improper identification groundless-Contrary to applicant's allegation, not Minister's responsibility to protect applicant at every stage of extradition proceedings-Applicant well represented before Canadian tribunals and rights of appeal duly exercised-Whether or not second, superseding, indictment had legal effect or rendering first capias null and void, matter for authorities of requesting state to decide and not for Minister of Justice-Considering above, fact Minister failed to consider applicant's counsel's letter wherein validity of surperseding indictment questioned not case of real substance-No provisions in Treaty, Art. 9 requiring documents related to request for extradition must be made through diplomatic channel-Not responsibility of Minister of Justice to monitor conduct American prosecutor for state of Florida or agent, official of Canadian Department of Justice-Whether or not description of fugitive in U.S. request correct, extradition judge identified applicant as fugitive sought by Americans and for extradition purposes, judge's decision stands-Surrender not refused on ground of possible imposition of death penalty upon conviction as Florida has assured death penalty would not be sought against DesFossés-Surrender of person by way of extradition not violation of his Charter, s. 7 rights, provided extradition carried out in accordance with principles of fundamental justice-If it is true that case presented by U.S. authorities loaded with inconsistencies contradictions, and even perjury, applicant will eventually have opportunity to prove it in proper forum-Meanwhile, requesting state has advanced sufficient evidence to establish prima facie case for extradition and no case of real substance has been made to quash Minister's decision-Treaty on Extradition between the Government of Canada and the Government of the United States of America, December 3, 1971, [1976] Can. T.S. No. 3-Extradition Act, R.S.C., 1985, c. E-23-Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 24.