CITATION: United States of America v. Michaelov, 2010 ONCA 819 |
DATE: 20101203 |
DOCKET: C50151 C50872 |
COURT OF APPEAL FOR ONTARIO |
O’Connor A.C.J.O., Feldman and Watt JJ.A. |
BETWEEN |
The Attorney General of Canada on Behalf of the United States of America and the Minister of Justice |
Respondents |
and |
Boris Michaelov a.k.a Boris Micahelov |
Appellant |
Alan D. Gold, for the appellant |
Richard Kramer, for the respondent, Attorney General of Canada |
Heard: May 21, 2010 |
On appeal from the order of Justice Nola E. Garton of the Superior Court of Justice on March 9, 2009, committing the appellant for surrender to the United States of America, and on application for judicial review of the surrender order of the Minister of Justice on July 31, 2009. |
Watt J.A.: |
[1] In New York state, retail sales of motor vehicles attract sales tax. The purchaser pays the tax as part of the purchase price. The dealer collects the tax for the state, then remits it to the state along with prescribed forms that show the details of the sale. Or, at least, that is how things are supposed to work.
[2] The District Attorney in Queen’s County says that Boris Michaelov, a Canadian resident, operated two car dealerships in Queen’s County from 2001 until 2005. Michaelov collected sales tax on retail sales of motor vehicles. But, the District Attorney contends, Michaelov did not remit to the state the amount of sales tax collected at the dealerships. Far from it. And so it is that the United States wants Michaelov returned to New York to stand trial on an indictment handed down by a grand jury in Queen’s County.
[3] A judge of the Superior Court of Justice ordered Michaelov committed for surrender to the United States. The Minister of Justice ordered Michaelov’s surrender.
[4] Boris Michaelov says that both the judge and the Minister were wrong in ordering committal and surrender. He appeals the committal order and seeks judicial review of the Minister’s decision on surrender. In my view, neither the judge nor the Minister made any reviewable error. I would dismiss the appeal and the application for judicial review.
[5] The grounds advanced on appeal and judicial review require some rehearsal of the evidence upon which the United States relies, as well as a brief summary of the procedural history and the circumstances of Boris Michaelov.
[6] In New York state, sales taxes is exigible on retail sales of motor vehicles to state residents. The purchaser pays the sales tax. The dealer, registered as a sales tax vendor, collects the sales tax. The dealer holds the sales tax monies in trust for the state, the deemed owner of the funds. The dealer must remit the sales tax collected to the state on a periodic basis, together with prescribed sales tax returns.
[7] Retail sales of motor vehicles are recorded on a prescribed form, MV-50. The dealer records the transfer of the ownership, the retail price and the applicable sales tax on the form. Filing the form with the Department of Motor Vehicles (DMV) certifies that the dealer has collected all applicable state and local taxes, including the state sales tax.
[8] The dealer completes another form, ST-100, which the dealer remits to the New York State Department of Tax and Finance (NYSDTF). On this form, the dealer records the total of taxable vehicle sales and of the taxes collected on those sales. The total sales made and taxes collected on the MV-50 and ST-100 forms submitted by the dealer should coincide.
[9] The New York prosecution of Michaelov focuses on two dealerships in Queen’s County: Bill Johnston Auto Sales (BJAS) and its successor, Lefferts Auto Sales (LAS). The state alleges that Michaelov was the principal in both dealerships.
[10] Both BJAS and LAS applied for and were granted the authority to collect sales tax on behalf of the state of New York by the NYSDTF. BJAS operated from December 1, 2001 until November 30, 2003; LAS from December 1, 2003, until May 31, 2005. Both dealerships operated out of the same business premises.
[11] From 2001 until 2005, according to an investigator from the NYSDTF, Boris Michaelov could not have obtained a motor vehicle dealers’ licence in his own name from the state of New York. His name does not appear in state records as the president of either BJAS or LAS. The state authorities allege that he ran the dealerships with others, associates who were his nominees, listed as the president. Neither nominee had anything of consequence to do in connection with the daily operation of either business.
[12] The Record of the Case (ROC) discloses that Boris Michaelov owned the property where both BJAS and LAS were located. The same address appears on Michaelov’s New York state driver’s licence. In a dealer acknowledgement statement filed with the DMV for LAS, Michaelov indicated that he had a direct or indirect financial interest in the business that he had not previously disclosed. He was an authorized representative for LAS at auto auctions and authorized others to represent the dealership in a similar capacity. He is alleged to have been the primary purchaser of vehicles for both dealerships at automobile auctions, often paying for his purchases (which aggregated several million dollars) with personal cheques. On one occasion, he paid a civil penalty incurred by BJAS with a personal cheque.
[13] State investigators reviewed various forms filed in Queen’s County by both dealerships. They found a significant discrepancy between reported and actual sales. For BJAS, during the period December 1, 2001, until August 30, 2003, the dealership reported total sales on their ST-100 form of $1,450,000.00. The actual sales recorded on MV-50 forms exceeded $16,000,000.00. The sales tax not remitted was $1,400,000.00. LAS reported sales of $700,000.00, but the MV-50 forms showed actual sales of $11,500,000.00. Based on this discrepancy, LAS failed to remit $927,000.00 in state sales tax.
[14] In the ROC, the District Attorney links Michaelov to the under-reported sales of $28,000,000.00 and under-remitted (but collected) state sales tax of $2,300,000.00 by the anticipated evidence of Kimlee Stewart, a criminal auditor for the NYSDTF. According to Ms. Stewart, who has reviewed all of the MV-50 forms submitted by BJAS and LAS, “most of” the forms bear Michaelov’s signature as seller. Filing the form certifies that all applicable state and local taxes have been collected by the seller from the purchaser.
[15] In his affidavit of April 15, 2008, Boris Michaelov denied signing any MV-50 form on behalf of BJAS or LAS. He described Ms. Stewart’s opinion as “absolutely false”.
[16] In a later affidavit, sworn on October 6, 2008, after counsel for the extradition partner at the committal hearing had produced copies of nine MV-50 forms, Michaelov acknowledged his signature on two of the forms. He explained that, as the landlord of BJAS, he may have prepared a few MV-50s at the request of the manager “to help his employees with their paperwork” while the manager was on vacation. He had forgotten about having done so when he had filed his first affidavit.
[17] The ROC includes as exhibits copies of Michaelov’s application for a New York state driver’s licence, his licence and an authorization that permits him to buy motor vehicles at auction for LAS. Each document bears Michaelov’s name and signature. His signature consists of a distinctive mark followed by the name “Boris” in capital letters. The same combination appears on several MV-50 forms attached as exhibits to his affidavit of October 6, 2008. The similarities in the signatures are consistent, obvious and remarkable.
[18] At the extradition hearing, Michaelov applied for disclosure of the MV-50 forms reviewed by Ms. Stewart. Counsel for Michaelov in New York had sought disclosure of the forms but the District Attorney had refused the request. Under the governing procedural statute, Michaelov is not entitled to disclosure until after he has been arraigned on the indictment handed down by the grand jury.
[19] The basis upon which counsel sought disclosure at the extradition hearing was twofold.
[20] First, Michaelov contended that disclosure was necessary so that he could determine whether he could impeach the presumptively reliable contents of the ROC. His affidavit of April 15, 2008, clothed his claim with the necessary air of reality. In the event that he could demonstrate, by production of the MV-50s, that Ms. Stewart’s opinion of his authorship was manifestly unreliable, he would be entitled to a discharge at the end of the hearing.
[21] Second, Michaelov submitted that disclosure of the MV-50s was necessary in order to ensure a fair extradition hearing, his constitutional due under s. 7 of the Charter.
[22] On October 27, 2008, the extradition hearing judge dismissed the application for disclosure.
[23] On March 9, 2009, the extradition hearing judge ordered Michaelov committed for surrender to the United States authorities.
[24] In her reasons ordering committal, the extradition hearing judge rejected the argument that the opinion of Ms. Stewart about Michaelov’s signature on “most of” the MV-50 forms was inherently unreliable or was rendered unreliable because of Michaelov’s qualified denial and the failure of the United States to produce the relevant MV-50 forms for inspection and analysis.
[25] The extradition hearing judge reviewed the presumptively reliable evidence summarized in the ROC, as well as the affidavits submitted by Michaelov. She framed the issue for decision as whether the assertion that Michaelov signed “most of” the MV-50 forms was so unreliable that it failed to meet the standard for committal under s. 29(1)(a) of the Extradition Act, S.C. 1999, c.18.
[26] The extradition hearing judge considered the distinctive nature of Michaelov’s signature, the number of forms involved (thousands) compared to the number located by Michaelov’s American lawyer that did not bear Michaelov’s signature (22), and the inconsistencies in Michaelov’s affidavits about signing MV-50 forms. She was not prepared to draw an adverse inference from the refusal of the United States to produce the MV-50 forms because it was not obliged to do so under American law until after arraignment. The evidence, as a whole, including evidence about Michaelov’s control of BJAS and LAS that was not controverted at the hearing, satisfied the extradition hearing judge that committal was warranted on the domestic offences contained in the Authority to Proceed.
[27] Counsel for the appellant made written submissions to the Minister. Mr. Gold pointed out what he alleged to be errors in the ruling refusing disclosure and in the decision on committal. He described Michaelov’s roots in Canada, his family situation and several medical conditions that he alleged would make his surrender unjust and oppressive.
[28] The Minister declined to postpone his decision on surrender until after this court had heard and determined the appeal from committal. The Minister noted that the correctness of the ruling on disclosure and the decision on committal would be determined by this court. The Minister did not consider the health and personal circumstances of Michaelov would render his surrender unjust or oppressive, thus ordered him surrendered to United States authorities.
[29] Boris Michaelov (the appellant) advances two discrete, yet related grounds of appeal against the decision ordering him committed for surrender. The first has to do with the correctness of the disclosure ruling and its impact on the fairness of the extradition hearing. The second concerns the ability of the ROC to satisfy the standard required for an order of committal under s. 29(1)(a) of the Act.
[30] The circumstances giving rise to this complaint have been outlined earlier. A few more strokes of background will fill out the canvas.
[31] The appellant sought disclosure of the MV-50 forms that provide details of retail sales of motor vehicles to New York state residents made by BJAS and LAS. The form records several details of the vehicle purchase and sale, including the particulars of the vehicle, the sale price, and the names and addresses of the purchaser, selling dealer and previous owner. The dealer or its authorized representative certifies that:
All New York state and local taxes due as a result of this sale have been collected from the purchaser.
False statements on the form are punishable under New York state law. Copies of this form are sent to the DMV and the NYSDTF.
[32] For the appellant, Mr. Gold says that the extradition hearing judge was wrong to refuse disclosure of the MV-50 forms that were crucial to and formed the core of the case against the appellant. The only evidence that linked the appellant to those forms, the lynch-pin of the prosecutor’s case, is the unsupported, lay opinion of Ms. Stewart that the appellant signed those forms.
[33] Mr. Gold submits that the decision of the Supreme Court of Canada in United States of America v. Ferras, [2006] 2 S.C.R. 77 altered the extradition landscape, permitting an extradition hearing judge to consider and reject the case for committal on the ground that its evidentiary underpinnings are manifestly unreliable. It follows from Ferras, Mr. Gold says, that the person sought may attack the reliability of the prosecutor’s case, in other words, may impeach or rebut the presumed reliability of the certified ROC.
[34] Mr. Gold points out that the decision of the Supreme Court of Canada in United States of America v. Kwok, [2001] 1 S.C.R. 532 authorizes an extradition hearing judge to order disclosure of materials relevant to issues properly raised at the committal hearing. Since the reliability of the evidentiary foundation of the prosecutor’s case is in issue at the hearing, according to Ferras, it follows, Mr. Gold urges, that the presiding judge should have ordered disclosure of materials that could have assisted the appellant in that pursuit.
[35] For the respondent, Mr. Kramer is of a different view. He says that, despite the initial attraction of the submission, the extradition hearing judge was right to refuse disclosure. He submits that to characterize the MV-50s as crucial to the prosecutor’s case is a red herring. The evidence of the appellant’s participation in the scheme is overwhelming.
[36] Mr. Kramer submits that the appellant was a directing mind of both dealerships, the person with the exclusive motive of financial gain from failure to remit the collected taxes. He owned the property on which each business was located and was the primary purchaser of millions of dollars worth of vehicles for retail sale. He declared a direct or indirect interest in the business. He authorized others to buy vehicles at auction. He often paid for the vehicles with a personal cheque and paid a civil penalty incurred by BJAS.
[37] Mr. Kramer contends that the decision in United States of America v. Dynar, [1997] 2 S.C.R. 462 defines the principles that control the decision about disclosure. Absent any showing of impropriety, a person sought for extradition is not entitled to disclosure beyond the contents of the ROC, especially where the effect of the order sought would be to provide the person sought more than his entitlement under the procedural law of the extradition partner that seeks his return.
[38] Mr. Kramer says that to obtain disclosure, the appellant must introduce evidence that provides an air of reality for his claim that the presumptively reliable ROC is unreliable. In this, the appellant has failed. The MV-50s exist. Each is signed. The investigator says that most are signed by the appellant. Not so, according to the appellant. The controversy relates to ultimate, not threshold reliability.
[39] Mr. Kramer points out that Ferras has nothing to say about disclosure. Not expressly. And not by necessary implication. A wider scope for judicial review in deciding on committal does not mandate a corresponding enlargement of the disclosure obligation.
[40] Some basic principles that govern the extradition process and hearing inform the decision about disclosure.
[41] The function of the extradition hearing judge is a modest one: Dynar at para. 120. The hearing is not a trial that must be conducted in accordance with domestic trial procedures: Dynar at para. 122. The hearing process must be fair, bearing in mind the history, purposes and policies that underlie extradition: Ferras at para. 19. A person can be extradited only after a judicial determination that the state seeking extradition has established a prima facie case that the person whose extradition is sought committed the crime alleged and should stand trial for it: Ferras at para. 20.
[42] The principles of fundamental justice apply to the extradition hearing and require that the person sought for extradition must receive a meaningful judicial determination of whether the case for extradition prescribed by s. 29(1) of the Act has been established: Ferras at para. 26.
[43] Section 29(1) of the Act defines the standard for committal. As under domestic law, committals must be based on evidence. The evidence must be admissible under the Act. The evidence must be evidence of conduct. And the conduct disclosed by the evidence must be conduct that, had it occurred in Canada, would justify committal for an offence set out in the Authority to Proceed. The judge must also be satisfied that the person in court is the person whose extradition is sought by the extradition partner.
[44] The Extradition Act offers two protections to the person whose liberty is at risk in the proceedings. The Act requires that the extradition hearing judge determine the sufficiency of the evidence to establish the requirements for extradition. And the Act creates admissibility provisions, the aim of which is to establish threshold reliability of the evidence offered in support of committal: Ferras at para. 17.
[45] Under s. 29(1), an extradition judge who concludes that the evidence is manifestly unreliable should not order extradition: Ferras at para. 40. The subsection requires the judge to assess whether admissible evidence shows the justness or rightness of committing a person for extradition. There must be evidence on each element of the offence demonstrably able to be used by a reasonable jury, properly instructed, to reach a verdict of guilt: Ferras at para. 46. The sufficiency of the evidence to support the committal includes the reliability of the certified evidence in the ROC, but threshold not ultimate reliability: Ferras at para. 53.
[46] To satisfy the test for committal in s. 29(1), the extradition partner must adduce some evidence, which is available for trial and not manifestly unreliable, on every essential element of the parallel Canadian crime upon which a reasonable jury, properly instructed, could convict: Ferras at para. 46; United States of America v. Thomlison (2007), 84 O.R. (3d) 161 (C.A.), at para. 47.
[47] It is clear that evidence may be rendered “so defective” or “so unreliable” to warrant disregarding it in making the decision on committal. Problems inherent in the evidence, problems that undermine the credibility or the source of the evidence or a combination of both factors may render the evidence “so defective” or “so unreliable” to warrant its disregard in the committal analysis: United States of America v. Anderson (2007), 218 C.C.C. (3d) 225 (Ont. C.A.), at para. 30. But it is only where these concerns about reliability justify the complete rejection of the evidence that they become germane to the inquiry under s. 29(1)(a): Anderson at para. 30.
[48] The Extradition Act contains its own rules of evidence. The contents of any documents in a properly certified ROC are admissible under s. 32(1)(a), even if they would not be admissible under Canadian law. Thus, the ROC could include hearsay: Ferras at para. 28. Threshold reliability of the contents of the ROC is presumed, based on its certification: Ferras at paras. 29; 30-32; and 52.
[49] The extent of disclosure required in extradition cases is shaped by the nature of the proceedings: Dynar at paras. 128-129. The degree of disclosure required includes the materials relied upon by the extradition partner, but does not coincide with domestic disclosure standards: Dynar at paras. 128-130 and 134-135; Kwok at paras. 98 and 101.
[50] I would not give effect to this ground of appeal. The extradition hearing judge identified the governing principles and correctly applied them to the circumstances of this case.
[51] The context and purpose of the extradition hearing shapes the level of procedural protection available to the person sought for extradition, including the right to disclosure: Dynar at paras. 128-129. We do not transplant into the extradition process all the disclosure requirements of our domestic law: Dynar at para. 130. The extradition hearing judge plays an important, but limited role and the extent of procedural safeguards required, including disclosure, fall to be considered within that framework: Dynar at para. 130.
[52] The extradition judge may only order disclosure of materials relevant to the issues properly raised at the hearing: Kwok at para. 100. The task of the extradition judge, framed by s. 29(1)(a) of the Act, includes a limited weighing of the evidence to determine whether a case for committal has been made out: Ferras at para. 54. At the hearing it is also open to the person sought to adduce evidence to challenge the sufficiency of the case for extradition, including evidence that impeaches the presumptive reliability of the certified ROC: Ferras at para. 53.
[53] A person sought for extradition may challenge the presumptive reliability of the contents of the certified ROC by introducing evidence under s. 32(1)(c) of the Act. This evidence must have two characteristics: it must be relevant to the test in s. 29(1)(a) (in the circumstances of this case) and it must be reliable. Reliability refers to threshold, not ultimate reliability: Ferras at para. 53.
[54] The appellant seeks disclosure of hundreds, if not thousands of MV-50 forms reflecting retail sales of motor vehicles by BJAS and LAS over a four-year period. The purpose that underlies the request is to impeach the reliability of the claim of the extradition partner, expressed in the conclusion of Ms. Stewart, that the appellant signed “most of” these forms.
[55] The appellant’s claim encounters at least three obstacles that it cannot overcome.
[56] First, the appellant’s submission confuses threshold reliability with ultimate reliability. The nature of extradition proceedings, the limited role of the extradition hearing judge and the circumscribed weighing of evidence permissible under Ferras make it clear that the task of the extradition hearing judge does not involve weighing competing inferences, determining whether evidence is actually reliable or evaluating the relative strength of the case advanced by the extradition partner: Anderson at para. 28.
[57] The conclusion of Ms. Stewart rests at bottom upon a purely mechanical exercise: examining the MV-50 forms for “Boris Michaelov”. Ms. Stewart then says that “Boris Michaelov” is the appellant. For his part, the appellant says first: “I didn’t sign any MV-50s”, then later, “I signed some as a favour for the manager who was on vacation”. We are not concerned here with threshold reliability.
[58] The appellant’s position may be tested in another way. Consider a case in which the participation of the person sought consists of the evidence of several eyewitnesses. Taken to its logical conclusion, the appellant’s submission would require disclosure of the entire identification history from each of the witnesses, thus extending beyond the limited weighing function of the extradition hearing judge.
[59] Second, the appellant relies upon his own denial of authorship of the MV-50s to fund his claim for disclosure. The extradition hearing judge did not consider the affidavits conferred any air of reality on the claim. It was within her province to do so.
[60] Third, the claim for disclosure implicitly assumes that the only way in which liability may be brought home to the appellant is on the basis that he signed “most of” the MV-50 forms. It is not clear to me that this is so, but this is something that must be determined in accordance with the legal principles applicable in the jurisdiction of the extradition partner.
[61] Further, order of the disclosure sought would have the effect of providing to the appellant, in an extradition hearing, a degree of disclosure that far exceeds his due under the procedural law of the extradition partner until 30 days after arraignment. In other words, his right to disclosure at a hearing in which guilt or innocence is not in issue would expand upon his right to disclosure under the procedural rules governing his charges and trial in the requesting state.
[62] Finally, the extradition hearing judge considered whether she should exercise her discretion to order disclosure of materials in the hands of United States authorities. She declined to do so in light of the restraints imposed on disclosure at extradition hearings: United States of America v. McAmmond (2005), 192 C.C.C. (3d) 149 (Ont. C.A.), at para. 21. I see no error in the exercise of her discretion.
[63] This ground of appeal fails.
[64] The appellant also challenges the order of committal independently of any alleged error in the ruling on disclosure. No additional background or governing principles need be canvassed in connection with this ground, but some reference should be made to the reasons of the extradition hearing judge and the arguments advanced by counsel on the appeal.
[65] The extradition hearing judge recognized that the appellant was entitled to challenge the presumptive reliability of the contents of the ROC. She concluded that the MV-50 forms were critical to the prosecutor’s case and acknowledged the affidavits filed by the appellant, including their attached exhibits. She concluded that the inconsistencies in the appellant’s affidavits rendered them incapable of rebutting the presumptive reliability of the contents of the certified ROC. She considered and rejected the appellant’s argument that the failure of the extradition partner to produce the MV-50 forms warranted an adverse inference about the reliability of Ms. Stewart’s conclusion.
[66] The extradition hearing judge summarized her conclusion in these terms:
[45] In summary, having considered all of the evidence presented at this hearing, including the affidavits of Mr. Michaelov and Mr. Ripa, as well as Exhibits 5 and 6, I am not satisfied that Ms. Stewart’s evidence is “so defective” or “so unreliable” that I should disregard it and give it no weight for the purpose of deciding whether the test for committal has been met. The evidence adduced by Mr. Michaelov falls far short of being “sufficiently powerful” to justify the complete rejection of her evidence. The presumption of reliability attached to her evidence has not been displaced.
[67] For the appellant, Mr. Gold submits that Ferras changed the landscape considerably in extradition cases, allowing for a more critical analysis of the case presented by the extradition partner. Here, the ROC is inherently unreliable because it is dependent on the bald, conclusory opinion of Ms. Stewart attributing authorship of the bulk of the MV-50 forms to the appellant.
[68] Mr. Gold says that Ferras also permits a challenge to the presumptive reliability of the certified ROC. Here, the appellant’s affidavits and their attachments, together with an adverse inference from the non-production of the MV-50 forms, casts sufficient doubt on the presumptive reliability of the ROC that the appellant should have been discharged.
[69] Mr. Kramer, for the extradition partner, contends that the presumption of reliability that follows from certification of the ROC remains unrebutted. It is wrong to focus exclusively on the MV-50 forms. And what is more, the controverting evidence from the appellant, itself unreliable, is simply inadequate to the task under Ferras to warrant discharge.
[70] The principles that govern determination of this ground of appeal were canvassed earlier and require no repetition.
[71] Despite the persuasive force of Mr. Gold’s advocacy, I would not give effect to this ground of appeal.
[72] The extradition hearing judge was fully cognizant of the scope of her authority under Ferras in deciding whether the test for committal under s. 29(1)(a) of the Act had been met. She considered the controverting evidence advanced by the appellant, including his affidavits, the 22 MV-50s not signed by him and any adverse inference that could be drawn from the non-production of the hundreds, if not thousands of MV-50s, and concluded that the presumptive reliability of the contents of the certified ROC had not been dislodged. She was entitled to make that finding. Absent an error in the application of the Ferras standard, a misapprehension of the relevant evidence or an unreasonable conclusion, her determination is entitled to deference.
[73] The appellant’s submissions treat as dispositive of the viability of the prosecutor’s case authorship by the appellant of “most of” the MV-50 forms. As it seems to me, under domestic law at least, which the extradition hearing judge was to apply in deciding whether the ROC could support committal on the domestic equivalent offences listed in the Authority to Proceed, it is by no means clear that authorship of the MV-50 forms is a sine qua non of liability in light of the other evidence of Michaelov’s involvement in and control of the businesses.
[74] The extradition hearing judge did not err in committing the appellant for surrender. It follows that I would dismiss the appeal from her order.
[75] Boris Michaelov also applies for judicial review of the surrender order made by the Minister of Justice. Some additional background is necessary to put the claim in its proper context.
[76] On Michaelov’s behalf, Mr. Gold made written submissions to the Minister of Justice to persuade him not to order surrender. Mr. Gold sought to have the Minister withhold his decision until the appeal from the order of committal had been heard and determined by this court. Mr. Gold also advanced several reasons why it would be unjust or oppressive to order surrender, including Michaelov’s personal circumstances and medical condition, as well as:
· the alleged deficiencies in the ROC;
· the evidence adduced on Michaelov’s behalf denying authorship of the MV-50 forms;
· the failure of the extradition partner to produce the MV-50 forms for examination;
· the inherent unfairness of the extradition hearing as a consequence of the failure to order disclosure.
[77] The Minister declined to postpone his surrender decision until after the appeal from committal had been heard and decided. The Minister also declined to consider the submissions relating to the sufficiency of the evidence adduced at the extradition hearing since he considered those issues would be decided on the appeal from the order of committal. The Minister further considered Michaelov’s personal circumstances, including the state of his health, but concluded that neither alone nor in combination were they sufficient to tip the balance against surrender.
[78] In his brief submissions, Mr. Gold acknowledged that deference is due to the Minister’s decision on surrender. He pointed out, however, that the Minister was bound to consider all the circumstances in deciding on surrender. The Minister’s refusal to consider the refusal of disclosure and the inherent unreliability of the case reflects a failure to consider all the circumstances and warrants an order remitting the case to the Minister for a reconsideration.
[79] Mr. Kramer says that the Minister’s decision involves an inherently subjective fact-based balancing of relevant factors. Removed from our authority on judicial review is any reweighing of the factors or substitution of our view for that of the Minister. Mr. Kramer rejects the suggestion that the Minister’s failure to consider the sufficiency or reliability of the case for the extradition partner amounts to a failure to consider all the circumstances. Those circumstances are for the extradition hearing judge to consider and for this court to review.
[80] Under s. 57(2) of the Act, the standard of review is reasonableness: Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761, at para. 26. The surrender decision of the Minister is a determination to which this court owes deference: Lake at para. 34. Interference with the decision is limited to exceptional cases of “real substance”: Lake at para. 34.
[81] On judicial review it is not for us to reassess the relevant factors and to substitute our own view of where the balance falls. What we must do is ask whether the Minister considered the relevant facts and reached a defensible conclusion, one that falls within a range of reasonable outcomes: Lake at para. 41. The Minister’s conclusion is not defensible if he has failed to carry out a proper analysis: Lake at para. 41.
[82] I would not interfere with the Minister’s surrender decision.
[83] The Minister recorded his understanding of his obligation to consider whether surrender would be contrary to the principles of fundamental justice and recognized that he could refuse surrender where to order it would be unjust or oppressive in the circumstances. He noted the submissions of counsel, which reiterated his [counsel’s] position before the extradition hearing judge and formed the basis of his appeal from committal. The Minister pointed out that the correctness of the conclusions of the extradition hearing judge would be decided here. It was in that context that the Minister determined that those considerations were not appropriate for him to take into account when the appeal was outstanding. Our affirmation of the conclusions of the extradition hearing judge on the disclosure issue, as well as the sufficiency and reliability of the ROC confirms the reasonableness of the Minister’s decision.
[84] It is well-settled that the extradition hearing judge and the Minister occupy different roles in the extradition process. It is for the extradition hearing judge to determine whether the evidence on the hearing warrants committal. For the Minister, an order of committal is a fait accompli. In a sense, the Minister’s view of the proximity of the case to the committal standard is immaterial.
[85] In the result, I am satisfied that the Minister’s determination that the surrender of the person sought would not be unjust or oppressive is reasonable. I would dismiss the application for judicial review.
[86] For these reasons, I would dismiss both the appeal from the committal order and the application for judicial review of the Minister’s surrender decision.
RELEASED: December 3, 2010 “DO”
“David Watt J.A.”
“I agree Dennis O’Connor A.C.J.O.”
“I agree K. Feldman J.A.”