Idziak v. Canada (Minister of Justice) [1992] 3 S.C.R. 631: -- Extradition -- Application to Minister to exercise discretion not to extradite -- Internal memorandum advising minister -- Minister not informing fugitive of memorandum -- Whether s. 7 right to fundamental justice infringed -- Canadian Charter of Rights and Freedoms, s. 7. Prerogative writs -- Habeas corpus with certiorari in aid

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin and Iacobucci JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Constitutional law -- Charter of Rights -- Fundamental justice -- Extradition -- Application to Minister to exercise discretion not to extradite -- Internal memorandum advising minister -- Minister not informing fugitive of memorandum -- Whether s. 7 right to fundamental justice infringed -- Canadian Charter of Rights and Freedoms, s. 7.

Prerogative writs -- Habeas corpus with certiorari in aid -- Fugitive committed for extradition -- Whether writ lies before actual process of extradition commences.

The U.S. sought to extradite appellant to face charges in Michigan of participating in a conspiracy to obtain funds from investors through fraudulent representations regarding two Canadian corporations. Appellant was arrested on a warrant of apprehension in 1987 and a warrant for his committal was issued after the extradition hearing. The Supreme Court of Ontario allowed in part his application to quash the warrant of committal. The prosecution appealed and appellant cross-appealed on the remaining charges on which the warrant of committal was outstanding. Both the appeal and the cross-appeal were abandoned.

Appellant sought, under s. 25 of the Extradition Act, to have the Minister of Justice refuse to exercise the Minister's discretionary authority to surrender him to the U.S. authorities. The minister, however, advised him that there were no grounds justifying a refusal to surrender him and signed the warrant of surrender.

Counsel for appellant then learned of an internal memorandum which the Minister had reviewed before making his decision. Appellant requested but never received a copy. He then commenced these proceedings by applying to the Supreme Court of Ontario for a writ of habeas corpus with certiorari in aid to set aside the warrant of surrender on the ground that the minister had denied his rights to fundamental justice guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms. The application was dismissed as was the appeal to the Court of Appeal. This appeal is from the decision of the Court of Appeal.

At issue here are: (1) whether this Court has jurisdiction to hear the appeal, and (2) if so, whether the Minister breached the principles of fundamental justice guaranteed by s. 7 of the Charter in reaching the decision not to refuse to surrender appellant. Leave to appeal had been restricted to the second issue.

Held: The appeal should be dismissed.

Per L'Heureux-Dubé, Cory and Iacobucci JJ.: When an unrestricted leave to appeal is granted, a respondent may advance any argument supporting the judgment below subject to the sole restriction that it does not require additional evidence to be adduced at trial. Leave to appeal here was granted on only one ground, however, and the Court thereby limited its own jurisdiction. While the grounds of appeal should not be expanded beyond the ground set out in the order, the Court nonetheless should always have the capacity to consider its own jurisdiction and should never be placed in a position requiring it to rule on a matter in which it did not have jurisdiction. An issue as to the Court's jurisdiction is the exception to the rule of limited jurisdiction.

Ontario's superior courts have always had jurisdiction to issue a writ of habeas corpus. The availability of certiorari in aid, recognized by the statute, simply ensures that the reviewing court will have access to the record of the proceedings concerning the detention of the applicant.

The rules dealing with habeas corpus should always be given a generous and flexible interpretation. An individual can properly invoke habeas corpus as a means of challenging increased or secondary detention even though success would not result in the release of the prisoner from a lawful primary detention. Here, the execution of the warrant of surrender would result in appellant's transfer to the custody of the requesting state. This important and far reaching restriction on his residual liberty constitutes a form of secondary detention empowering the superior court to consider the application for the issuance of habeas corpus. To require appellant to wait until the Canadian authorities actually initiated the surrender phase by confining him for the purposes of transfer to the United States before applying for habeas corpus would place an unfair and intolerable burden upon him and would be contrary to the nature of the remedy habeas corpus is designed to provide. The time constraints alone would place the remedy beyond reach.

The provincial superior courts and the Federal Court share concurrent jurisdiction to hear all habeas corpus applications other than those specified in s. 17(6) of the Federal Court Act. The Federal Court Act does not remove the historic and long standing jurisdiction of provincial superior courts to hear an application for a writ of habeas corpus. To remove that jurisdiction from the superior courts would require clear and direct statutory language.

The appellant was not required to proceed in the Federal Court in spite of any concurrency of jurisdiction. Parliament did not provide a comprehensive statutory scheme of review, tailored to the extradition process.
This Court could appropriately consider appellant's allegation of a reasonable apprehension of bias based upon the statutory scheme. Ample notice was given because it was raised in both the application for leave to appeal and appellant's factum. Respondents were given the opportunity to file any additional evidence and have suffered no real prejudice by the loss of the opportunity to respond to this claim in the courts below.

The decision of the Minister to issue a warrant of surrender pursuant to s. 25 of the Extradition Act must be exercised in accordance with the "principles of fundamental justice". This phrase includes the right to be heard by an unbiased decision-maker. At the adjudicative end of the decision-making spectrum, the appropriate test is: could an informed bystander reasonably perceive bias on the part of the adjudicator? At the legislative end, the test is: has the decision-maker pre-judged the matter to such an extent that any representations to the contrary would be futile?

The extradition process has two distinct phases. The first encompasses the court proceedings which determine whether a factual and legal basis for extradition exists. It is judicial in its nature and warrants the application of the full panoply of procedural safeguards. If that process results in the issuance of a warrant of committal, then the second phase is activated. When the Minister of Justice exercises his or her discretion in determining whether to issue a warrant of surrender, no lis is in existence. The decision-making process is political in nature and is at the extreme legislative end of the continuum of administrative decision-making. The Minister must weigh the fugitive's representations against Canada's international treaty obligations. This is not a case of a single official's acting as both judge and prosecutor in the same case.

The Minister acted fairly in considering the issuance of the writ of surrender. There was no evidence of improper influence on the part of anyone involved in prosecuting the extradition proceedings, no evidence of the minister's pre-judging the matter, and no evidence of the minister's having an impermissible bias against appellant.

Solicitor-client privilege protected the memorandum prepared by the Minister's staff. It contained nothing that was not known to the appellant apart from the recommendation and was not evidence for use in an adversary proceeding. Failure to disclose did not constitute unfairness.

Per Lamer C.J. and McLachlin J.: Apart from the issue of grounding the confidentiality of the document on solicitor-client privilege, the reasons of Cory J. were concurred with. That issue was specifically left open.
Per La Forest J.: The reasons of Cory J. were agreed with. In considering the issue of surrender, the minister was engaged in making a policy decision rather in the nature of an act of clemency and was entitled to consider the views of her officials who were versed in the matter. She was dealing with a policy matter wholly within her discretion and there was no reason why she should be compelled to reveal these views. A decision as to whether the memorandum fell with the solicitor-client privilege was therefore unnecessary.

Per Sopinka J.: The reasons of Cory J. were agreed with, subject to the reservation expressed by Lamer C.J.

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