2007 BCCA 407 Italy v. Seifert

Before:	The Honourable Mr. Justice Donald
	The Honourable Madam Justice Huddart
	The Honourable Mr. Justice Smith

D. H. Christie	Counsel for the Appellant
D. J. Strachan and K. L. Swift	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
March 12, 13 and 14, 2007
Place and Date of Judgment:	Vancouver, British Columbia
August 3, 2007

Written Reasons by:

The Honourable Mr. Justice Donald

Concurred in by:

The Honourable Madam Justice Huddart

The Honourable Mr. Justice Smith

Reasons for Judgment of the Honourable Mr. Justice Donald:

[1] As the end of the Second World War approached, Michael Seifert, a member of the German S.S. (Schutzstaffel, the Nazi special police force), found himself at the Bolzano Transit Camp in northern Italy.

[2] The Republic of Italy alleges that between December 1944 and April 1945, while working as a guard at the camp, Seifert beat, tortured, starved and murdered inmates.

[3] After giving notice to Seifert along with an offer to provide him counsel, Italy prosecuted him in absentia. He was convicted of a number of murders and sentenced to life imprisonment. Italy requests his extradition on nine offences of murder.

[4] Seifert testified at the committal hearing before Mr. Justice Romilly. He said he was at the Bolzano camp during the relevant time, but he was there as a prisoner serving a sentence for rape of a local woman, not as a guard, and he harmed no one.

[5] The committal hearing took a long time. Seifert raised an issue as to his fitness to participate in the process and challenged the sufficiency of the evidence adduced by Italy in various ways, including giving evidence for four days in which he denied every allegation of wrongdoing by every witness in Italy's Record of the Case.

[6] On 27 August 2003, Romilly J. committed Seifert to await surrender on seven of the nine offences in the request: 2003 BCSC 1317.

[7] It is alleged on appeal that the judge did not assess the evidence according to the degree of scrutiny now required by the 2006 decision of the Supreme Court of Canada in United States of America v. Ferras; United States of America v. Latty, [2006] 2 S.C.R. 77, 209 C.C.C. (3d) 353, 2006 SCC 33. Seifert seeks a new hearing so that such an assessment can take place. He raises a host of other issues, but this is the most important one.

[8] At the surrender stage, the matter was considered by the Honourable Irwin Cotler, then Minister of Justice and Attorney General of Canada. After another lengthy process, on 28 December 2005 the Minister ordered the surrender to Italy on the seven offences for which Seifert was committed.

[9] Again, although Seifert raises many issues in his challenge to the surrender order, one issue emerges as the most important. It is alleged that the Minister's background as a passionate advocate for Jewish organizations in matters relating to the Holocaust and bringing Nazi war criminals to justice gave rise to a reasonable apprehension of bias. It is said that a well-informed, reasonable person would not think the Minister could bring an open mind to the exercise of the discretionary power to refuse surrender on humanitarian and compassionate grounds or on grounds relating to the Italian process. It is further said that there is a realistic basis for a favourable exercise of the discretion not to surrender: Seifert, who turned 83 years of age during the appeal hearing and who has some health problems, led a peaceful life in Canada for over 50 years, where he worked hard, raised a family and in all respects behaved as a good citizen.

[10] The extradition judge did not have the advantage of Ferras. Seifert is entitled to an assessment of the evidence in conformity with that case. I am not persuaded that a new committal hearing is necessary to fairly accomplish that task. Having reviewed the evidence, I am satisfied that the evidence is sufficient for committal. I would not disturb the order of committal on any of the other grounds of appeal and accordingly I would dismiss the appeal.

[11] On the judicial review of the Minister's surrender order, I do not accept that the Minister's prior activities and representations as a human rights activist created a reasonable apprehension of bias. Nor am I moved to interfere with the order on any other basis advanced by Seifert. I would dismiss the petition for judicial review.

Facts

[12] That Seifert was a member of the German armed forces at the Bolzano Transit Camp in the closing months of the Second World War is not in dispute. What is in question is his identity as the perpetrator of the seven offences for which he was committed.

[13] As mentioned, Italy adopted the Record of the Case method in presenting its request: s. 32(1)(a) of the Extradition Act, S.C. 1999, c. 18. The Record of the Case summarized what Italy considered to be the most important evidence and included copies of statements of the principal witnesses. The military prosecutor of Military Court Verona, Dr. Bartolomeo Costantini, certified that:

... the evidence summarized in the record of the case is available for trial, and that this evidence is sufficient under the law of Italy to justify prosecution certify that the evidence summarized in the record of the case is available for trial, and that this evidence was gathered according to the law of Italy.

[14] This is in accordance with s. 33(1)(a) and s. 33(3)(a)(i) and (ii):

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;

* * *

(3) A record of the case may not be admitted unless

(a) in the case of a person sought for the purpose of 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; ...

[15] As an overview, the following capsule summary, presented by the International Assistance Group in a submission to the Minister at the surrender stage, is both accurate and helpful:

The Government of Nazi Germany was at war with Italy in the latter part of the Second World War, and operated a "Transit Camp" near Bolzano, Italy to house persons engaged in forced labour, political prisoners, hostages, Jews and persons awaiting transit to concentration camps.

Mr. Seifert was a member of the German military in the SS. In 1944, he and another man, named Mr. Otto Sein, were guards at the Bolzano camp. They had been sentenced by a German Military Court to a period of time in the transit camp following a finding of rape made against them. Most of the prisoners in the camp were Italian. Mr. Seifert and this other man were assigned the task of guarding the persons in the "isolation cells", which functioned as a prison within the prison. Mr. Seifert was, therefore, both a prisoner within the camp and a camp guard. Mr. Seifert and Mr. Sein were the only Ukrainian guards within the isolation cells. They worked under Mr. Albino Cologna who was in charge of the isolation cells.

The allegations are that over a period between December 1944 and April 1945, Mr. Seifert tortured and murdered a number of prisoners in the isolation cells.

[16] The setting in which the alleged crimes were committed was described in the Record of the Case in this way:

1. The Bolzano Military Transit Camp

Following is a summary of the evidence relating to the establishment and operation of the Bolzano Transit Camp by German SS occupying forces in 1944 and 1945.

In the course of the Second World War, an armistice was signed by the Italian Kingdom with the western allied forces on September 8th, 1943. Thereafter, Germany was at war with Italy and German Military forces occupied certain areas of northern Italy. In June, 1944, the "Polizeiliches Durchgangslager Bozen" (Bolzano Transit Camp) was set up by the occupying German forces and placed under the authority of the SS, the body to which all the Camp officials belonged.

The camp's function was to gather antifascist and antinazi politicians, persons of Jewish religion, deserters and other persons rounded up in all of Italy who were destined to be transferred to the concentration and extermination camps situated in Austria (Mauthausen), Germany (Dachau, Flossenburg, Ravensbruck) and Poland (Auschwitz) and related sub-camps. The camp also gathered family members of deserters from the German military who were captured in order to convince them to return back to the army. The prisoners were both men and women; there were a few children, mainly Jewish ones.

The first activity at the camp was to assemble prisoners who had been evacuated from the Nazi transit camp in Fossoli, an Italian town between Bologna and Verona. The Germans no longer considered this camp secure as a result of the advancement of the allied troops from the South to the North of the Italian peninsula.

The people captured in various areas of northern Italy were quickly deported to the Bolzano camp and were destined to concentration and extermination camps situated in Austria, Germany and Poland. This Camp could hold more than 11,000 people; about 8,000 of these were deported during the Third Reich and few returned home.

Some of the person[s] detained in the Camp were not transported, but were detained at the Camp either to work in factories located outside of the Camp that made weapons and motor trucks for the German military forces (these prisoners were taken to and from the factories by SS members), or to work in the Camp itself to carry out assigned functions (laundry, cleaning, etc.).

Between February and March 1945, the transport of prisoners to the Third Reich became ever more infrequent and then ceased altogether because the rail lines were interrupted by the allied bombings.

The last documented transports of prisoners from the Camp by train were a transport of about 540 prisoners towards Mauthausen which left on Feb. 1, 1945 and a transport of motor trucks of about 20 prisoners towards Dachau which left on March 22, 1945. As a result of the rail lines being unusable, the population at the camp increased.

The prisoners were lodged in a series of huts, situated on two sides of the camp, to the right and the left in relation to the entrance. These huts were called blocks, and each was marked with a letter "A" through "I".

At the end of the camp farthest from the entrance and located apart from the "Blocks", there was a building which contained on the ground floor the Camp isolation cells and on the upper floors, a warehouse of materials. These were the only isolation cells within the Camp. In these cells, certain Camp prisoners were locked up for varying periods of time or even for the entire duration of their imprisonment within the Camp. Prisoners were placed in the isolation cells primarily to subject them to interrogation.

The building containing the isolation cells had over thirty cells which faced each other down a long corridor. Each cell contained a varying number of prisoners. The isolation cells were locked day and night and were kept dark, with the prisoners being permitted out of their cells for only a few minutes a day.

From the time it was instituted in June of 1944 to the moment it closed, the camp was run by the Untersturmfuehrer (second lieutenant) of the SS, Karl Friedrich TITHO, while the <<vice-comandante>> of the camp and responsible for surveillance and discipline was Oberscharfuehrer (sergeant-major or marshall) of the SS, Hans. HAAGE.

The task of surveilling the cells was assigned primarily to Albino Cologna and two SS of Ukrainian origin, Michael SEIFERT and Otto SEIN. SEIFERT and SEIN disappeared before the camp's closure and no other information on them was known.

On the 3rd of May 1945, the Camp was permanently closed with the release of the last approximately 3500 prisoners.

[17] The judge found the evidence sufficient to commit on seven of the nine offences alleged in the Record of the Case. He segregated the offences into counts corresponding with their listing in the Authority to Proceed.

[18] Count 1 alleged the murder of a young Jewish prisoner by starvation. As with all the counts, the judge in his reasons summarized the allegation, described the evidence submitted in support, and expressed his conclusion. By way of a summary on count 1, he wrote:

[73] ... Seifert, either acting alone or together with Sein, deliberately withheld food from a young Jewish prisoner, thereby causing his death.

[19] For the sake of brevity, I will leave a discussion of the evidence on each count until I reach my analysis under the Ferras principles.

[20] The judge discharged Seifert on count 2, which alleged the murder of a pregnant female prisoner, who was raped, tortured for information by dousing her with cold water in wintertime, and found dead in a pool of blood. The judge concluded:

[92] ... Even taking into account his evidence regarding Seifert and Sein's previous physical and sexual abuse of the victim, I find there is an insufficient evidentiary foundation upon which to reasonably infer causation and identity.

[21] Count 3 alleged the murder of Bortolo Pezzuti (Pizzuto) who was beaten with a stick and who had his abdomen gashed. The judge noted:

[95] [Italy] submits that Mella Mascagni (nee Lilli), a prisoner in the isolation cells, came to know another prisoner, Bortolo Pizzuto. The night before Easter 1945, Lilli heard Seifert and Sein take Pizzuto from his cell and beat him with a stick in the corridor of the isolation cell building. Both Lilli and Giovanni Boni saw Pizzuto’s dead body with his abdomen gashed.

[22] Count 4 alleged the murder of a male prisoner who tried to escape. The judge summarized it:

[108] [Italy] submits that in March, 1945, a group of five guards, including Seifert and Sein, beat to death a prisoner who had tried to escape the Camp.

[23] Count 5 alleges the murder of two prisoners in the circumstances summarized by the judge in this way:

[114] [Italy] submits that in March or April, 1945, Seifert, Sein and Cologna kicked two prisoners and then shot them to death in the courtyard of the Camp.

[24] The judge discharged Seifert on count 6, which alleged the murder of a male prisoner who disappeared after Seifert and Sein tortured him by gouging his eyes. The judge's conclusion was:

[126] However, in the absence of the victim’s body, there is no evidence from which to infer causation. In my opinion, the fact that Seifert and Sein physically abused him three to four nights previously is insufficient in this regard.

[25] Count 7 alleges the murder of a Jewish woman, known as Voghera, and her daughter. The judge summarized it as follows:

[129] [Italy] submits that a 50 year old Jewish woman, Voghera, was imprisoned at the Bolzano Transit Camp in early 1945. Her daughter was imprisoned the following day. Seifert and Sein deprived them of food and forced them to sleep naked on the floor. Both women died after being severely beaten by the two guards.

[26] Count 8 alleges the murder of an Italian male prisoner. The judge referred to the evidence of Josef Brunner in support of this count. The Record of the Case presented Brunner's deposition, in which he declared:

One night, guards took a man, I think a partisan, to the infirmary. He was Italian, he was beaten with clubs, or a sort of whip. I had already finished my duty, so I left and went to my block. The following morning I found that man dead, near a bed in the infirmary. I had to take his corpse to his cell, I do not know what happened afterwards.

[27] Count 9 alleges the murder of another prisoner who tried to escape. The judge stated:

[140] [Italy] submits that one afternoon a few days before Christmas 1944, Seifert and Sein dragged a prisoner who had tried to escape to the end of the Camp where they bound him to a wire fence near the laundry. The inmates of the Camp were required to assemble outside to watch the punishment of this prisoner. He was savagely beaten by the two guards until he lost consciousness. His dead body was still there the following morning.

[28] When hostilities ended in May 1945, Seifert dropped out of sight. His whereabouts were unknown to the Italian authorities until 1999. Seifert entered Canada in the early 1950's and lied about his past.

[29] Upon arrival in Canada, he began a normal life as an immigrant. He worked in a sawmill, married, had children, bought a house, went to church, attained citizenship and retired in due course, all without blemish. This idyllic situation was shattered when out of the past came the announcement by mail in August 1999 that Italy accused him of wartime offences of the most grievous sort and that a prosecution was pending.

[30] In the Minister's surrender decision, the sequence of events was described as follows:

Italian authorities sent 3 written notices to Mr. Seifert, namely, in August 1999, in November 1999, and on September 28, 2000, none of which was in German, his mother tongue. The first notice was in English. According to the conversation Mr. Seifert had with the Royal Canadian Mounted Police (RCMP) who served him with the third notice, he had not read the first notice but had sought legal advice. The second notice, which was sent by mail in November 1999, was not accepted or signed for at Mr. Seifert's address. The third and final notice of September 28, 2000, in both English and Italian, was served upon Mr. Seifert and explained to him, in the presence of his wife, by the RCMP. The notices provided detailed information about, inter alia, the charges against Mr. Seifert, his rights, the time and place of the trial, and the consequences of his not attending, and invited him to contact appointed counsel or the prosecution.

[31] The trial proceeded in Seifert's absence on 20-24 November 2000 before the Military Tribunal of Verona on 15 charges. Verdicts of guilty were returned on the nine charges forming the basis for the extradition request, and a sentence of life imprisonment was passed. Seifert brought appeals from conviction through lawyers he engaged in Italy. His appeal at the first level was dismissed on 18 October 2001 and his further appeal to the court of last resort, the Supreme Court of Cassation, was dismissed on 8 October 2002.

[32] While the appeals were pending, Italy made an extradition request and on 26 April 2002, the Minister of Justice's designate issued an Authority to Proceed under s. 15 of the Extradition Act in relation to nine offences corresponding to murder under s. 229 of the Criminal Code of Canada:

... for the execution of a sentence imposed after he was tried and convicted in his absence.

[33] Italy's extradition request also stimulated a denaturalization proceeding to strip him of his status as a Canadian citizen by reason of a false declaration he made upon entry. Those proceedings paralleled the extradition. Seifert argues that the dual proceedings affected the fairness of the extradition process.

[34] Seifert was arrested on 1 May 2002 in Vancouver by Sergeant Thordarson of the Royal Canadian Mounted Police, who interviewed him regarding whether he was the person sought by Italy. The extradition hearing began on 27 September 2002. The first issue was Seifert's fitness. The hearing into fitness went 18 days between 12 November 2002 and 1 April 2003, during which Sergeant Thordarson's videotaped interview with Seifert was adduced and expert evidence called. In a full set of reasons released 1 April 2003, the judge ruled Seifert fit for the hearing on extradition: 2003 BCSC 501.

[35] The extradition hearing itself began on 2 April 2003, concluded on 27 August 2003, and involved 14 hearing days. Although the Authority to Proceed was directed at the execution of a sentence rather than a prosecution in the requesting state, the judge was required to rule on the adequacy of the evidence in the Record of the Case as though there had been no trial and no conviction. This is because the trial in Verona was held in Seifert's absence. The following provision in the Act is relevant:

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; and

(b) in the case of a person sought for the imposition or enforcement of a sentence, the judge is satisfied that the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed and that the person is the person who was convicted.

* * *

(5) Subject to a relevant extradition agreement, if a person has been tried and convicted without the person being present, the judge shall apply paragraph (1)(a).

Issues

[36] The issues on appeal are:

1. What is the effect of Ferras on the assessment of evidence for extradition?

2. If the evidence must be reassessed, should the case be remitted or should this Court undertake the task?

3. On reassessment, does the evidence satisfy the Ferras test?

4. On the question of fitness, did the judge err:

(a) in restricting cross-examination of an expert;

(b) in admitting the videotaped statement without conducting a voir dire;

(d) in applying an inappropriate test for determining fitness?

5. In refusing Seifert's Rowbotham application for state funding of counsel, did the judge err?

6. In refusing to entertain a constitutional challenge to s. 47(b) of the Extradition Act on the ground that the provision relates to the ministerial stage of extradition, did the judge err?

7. In refusing Seifert's request to embark upon a Charter inquiry into the allegation of mala fides on the part of Italy, did the judge err?

[37] The issues on judicial review of the surrender order are:

8. Do the circumstances give rise to a reasonable apprehension of bias?

9. Seifert requested disclosure relating to an allegation of apprehension of bias and also requested an oral hearing before the Minister. Both requests were refused. Was he denied procedural fairness?

10. Does Italy's conduct constitute an abuse of process?

11. Would Seifert's extradition be unjust or oppressive?

12. Did the parallel citizenship revocation process create an abuse of process?

13. The Minister signed the surrender order after Parliament had dissolved. Did he have the power to issue the order?

[38] I propose to discuss the issues in the order arranged above.

1. The Effect of Ferras

[39] Counsel for Italy urged upon us an interpretation of Ferras that I have said in a recent judgment, United States of America v. Graham, 2007 BCCA 345, was too narrow a view of what that case decided. I will not repeat the analysis in Graham leading to what I consider to be the proper interpretation of Ferras. I need only say in summary that I rejected the proposition that Ferras merely modified the hitherto leading case of United States of America v. Shephard (1976), [1977] 2 S.C.R. 1067, 30 C.C.C. (2d) 424, and held that Ferras not only required a requesting state to produce evidence both reliable and available, but also clothed the extradition judge with the discretion to engage in a limited weighing of the evidence (thereby overruling a key element of Shephard) to determine whether the evidence proffered by the requesting state was sufficient to enable a properly instructed jury, acting reasonably, to convict on the basis of the evidence.

[40] The judge's decision in this case preceded Ferras by several years. I think he took a careful look at all the evidence – indeed, he discharged on two counts – but, in an extensive review of the authorities, he noted the limited role of the judge as outlined in Shephard. I cannot say that he fully anticipated the development of the law as set out in Ferras when he assessed the sufficiency of the evidence and so a reassessment is necessary. Who should do it?

2. Remit or decide?

[41] Seifert wants a new hearing. Italy says that this Court should conduct a reassessment. I agree with the latter position.

[42] A new hearing would cause intolerable delay in an already protracted case. Canada's extradition partners are entitled to a swift determination of their requests.

[43] Although Seifert says there are matters of credibility on oral testimony that should be determined by a trier of fact at first instance, I do not think that poses a problem in this case. Seifert's testimony amounts to a long series of denials. His credibility is for trial, not committal. In this regard, I refer to the concurring reasons of Mr. Justice Hall in Graham:

[41] I wish, however, to note that I would consider it an extremely rare situation when an extradition judge could properly enter upon a consideration of the credibility of proposed witnesses. Credibility is pre-eminently a jury question to be left to be considered by the trier of fact. Unreliability of evidence could arise for instance from serious deficiencies in a body of circumstantial evidence or from the opportunity for a witness to know or observe factual matters. But the mere fact that a witness might be thought by an extradition judge to be of less than stellar credibility would not normally suffice as a ground to refuse a committal order. That sort of issue, in my opinion, is best left to be decided by a trial court.

[44] Moreover, Seifert's evidence does not manifest the unreliability of the evidence against him, nor does it demonstrate its unavailability; it simply sets up issues which he had an opportunity to address in the Italian trial, had he decided to participate.

[45] The approach taken by the Supreme Court of Canada in Ferras, which this Court followed in Graham, was to review the evidence in light of the new rule. I propose to take that course in the present case to minimize delay. The Record of the Case is there to read and consider. I do not think we are at a significant disadvantage relative to the extradition court in carrying out a reassessment.

3. Sufficiency of the Evidence

[46] There are two issues of identification:

1. Is Seifert the person sought by the requesting state?

2. Is he the person who committed the offences?

[47] The Act makes provision for evidence on the first question:

33. ...

(2) A record of the case may include other relevant documents, including documents respecting the identification of the person sought for extradition.

* * *

37. The following are evidence that the person before the court is the person referred to in the order of arrest, the document that records the conviction or any other document that is presented to support the request:

(a) the fact that the name of the person before the court is similar to the name that is in the documents submitted by the extradition partner; and

(b) the fact that the physical characteristics of the person before the court are similar to those evidenced in a photograph, fingerprint or other description of the person.

[48] The judge correctly stated that the standard of proof on the first question is proof on the balance of probabilities. There is an abundance of evidence, including photographs of Seifert in his S.S. uniform, and his own testimonial admission that he is the person Italy seeks.

[49] The second question of identity, Did he commit the offences alleged?, is the real issue. I will address this question on a count-by-count analysis in as succinct a manner as I am able.

[50] A few general remarks about Italy's assembly of the evidence in the Record of the Case is in order. Italy's legal system is in the civilist or continental tradition where evidence is gathered in an inquisitorial process, recorded in formal summaries or verbatim statements and then used as a basic reference at trial. The Record of the Case consists of witness statements captured in various forms and at different stages of the inquisitorial process: statements to police officials, to prosecuting magistrates in the course of an incidente probatorio (bearing some similarities to our preliminary inquiry), statements to an investigating magistrate, and, with respect to some witnesses who are now deceased, their testimony at the trial in 1946 regarding one of the prison officials, Albino Cologna, at the Bolzano Transit Camp. The official who certified the Record of the Case represented that the evidence collected in these various ways is admissible in Italy in proof of the criminal allegations and unless successfully challenged at extradition, the certification is presumptively conclusive as to admissibility and, ergo, establishes the availability of the evidence.

[51] Count 1 alleges the murder of a young Jewish prisoner by starvation. The circumstances of the victim's death were witnessed by Ilda Fliri Magri and Gustav Mair, both prisoners. Other witnesses gave evidence that Seifert and Otto Sein controlled the feeding of prisoners in the isolation cells. This is enough evidence to go to a jury and is thus sufficient.

[52] The judge discharged on count 2.

[53] Count 3, alleging the murder of Bortolo Pezzuti (Pizzuto) by beating him with a stick and gashing his abdomen, is supported by two former prisoners who saw the event. Mella (or Nella) Lilli Mascagni gave evidence that the Ukrainians did this. She referred to Seifert by name and identified him from a photograph taken during the War. She knew the name of the victim. Her evidence was confirmed by the other witness, Giovanni Boni. This is sufficient.

[54] Count 4, alleging the murder of a prisoner who tried to escape, was also witnessed by Giovanni Boni. He gave evidence that Seifert, with four others, kicked the victim to death. He identified Seifert by name as one of the two Ukrainian guards who participated in the fatal beating. This is sufficient to go to a jury.

[55] Count 5, alleging the murder of two male prisoners, was also witnessed by Boni, who gave evidence that from his cell window he saw Cologna, Sein and Seifert, whom he referred to as S.S. soldiers, kick the prisoners and then shoot them, one in the head, the other in the back. He said the victims had tried to escape. This is sufficient evidence.

[56] The judge discharged on count 6.

[57] Count 7, alleging the murder of a Jewish woman from Milan by the name of Voghera and her daughter, was supported by three former prisoners. The principal witness was Mario Leoni, who gave evidence that he occupied the cell next to what he called the "death cell", from which he was able to determine that the two women were starved and severely beaten by Seifert and Sein until they died. The other two witnesses confirmed his story in material respects. This is sufficient evidence.

[58] Count 8, alleging the murder of an Italian male prisoner, is supported by the evidence of Joseph Brunner. Brunner was a prisoner who worked in the infirmary of the camp. He identified Seifert in his wartime photograph as one of the two S.S. Ukrainian guards who cudgelled a young man suspected of being a partisan. Brunner brought the victim to the infirmary where he found the victim dead the next morning. This is eyewitness testimony sufficient to commit on count 8.

[59] Count 9, alleging the murder of a male prisoner who tried to escape, was supported principally by the evidence of Giuseppe D'Antonio, who said that the two Ukrainian S.S. guards dragged an escapee to a wire fence in the yard of the camp, and in front of the other inmates, who were paraded to watch this event, beat him savagely with clubs. The victim died bound to the fence. This incident was also witnessed by Luciana Menici, who said the "two Ukrainians" killed the victim. Her account is confirmed in material particulars by Giuseppe Kneissl. This is sufficient for committal.

[60] As I reviewed the evidence, I kept in mind what Seifert's counsel argued were inherent weaknesses in the Record of the Case and which he submitted would have demonstrated the insufficiency of the case on the Ferras standard. The alleged defects said to manifest the unreliability of the evidence are: hearsay in some of the evidence; the age of the allegations and fading memories; several key witnesses are deceased; collaboration amongst former prisoners who have maintained contact over the years as survivors and who probably read an account of the camp entitled "The Shadow of Darkness" by L'Omrade de Dubbio; and the leading nature of the questioning of witnesses by police, prosecutors and magistrates. To borrow a phrase from R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15, I have examined the case "through the lens of judicial experience", cognizant of the alleged defects, and I cannot say that in each of the counts for which Seifert was committed it would be unjust to put the case to a jury.

[61] The points raised by Seifert go to credibility. Potentially, they could persuade a jury to disregard the evidence but they fall well short of weakening the case to the extent that committal should be refused.

4. Fitness

[62] Seifert gave evidence at considerable length. The transcript of his testimony reveals no cognitive deficit. The judge recorded his impressions of Seifert's testimony in his reasons for committal in this way:

[8] The Respondent testified for four days during this hearing. I had an excellent opportunity to observe him. He appeared to be a feisty senior. After observing him for these four days, I am more convinced than ever that he does not suffer the dementia or other mental disabilities from which he claimed to suffer at the outset of this hearing. His command of the English language also appeared much better than was initially claimed.

[63] In view of these observations, I find it difficult to take seriously the grounds advanced under the heading of fitness. I propose then to move quickly through those grounds.

(a) Restricted cross-examination of an expert

[64] Italy called an expert on Seifert's fitness. The judge interrupted the questioning by Seifert's counsel of the witness on his qualifications and pointed out that his questions related not to his qualifications but to the value of his expert opinion. The judge did not allow counsel to press the witness on his partiality towards the party who hired him, and invited counsel to take up the issue with the witness on the cross-examination in due course. After the judge accepted the witness's qualifications and the witness testified in chief, Seifert's counsel did not return to the subject. This point has no merit.

(b) The videotaped interview by Sergeant Thordarson

[65] The videotape was entered for the limited purpose of showing Seifert's awareness and understanding and for no other purpose. Seifert argues the voluntariness of the statement should have been tested by a voir dire. The judge correctly held that voluntariness was irrelevant to the issue of fitness and properly refused to embark upon a voir dire.

(c) Novel testing technique

[66] Seifert's expert witness on fitness employed a novel testing technique entitled Quantitative Electroencephalograph (QEEG). The technique was applied twice with conflicting results. Other experts testified that QEEG has not been accepted in the field of neuropsychology. The judge ruled that the techniques produced unreliable results. There is no basis for appellate interference with that ruling.

(d) Applying the wrong test for fitness

[67] This point was poorly articulated in Seifert's factum and was not developed in oral argument. The judge's ruling on fitness recited the relevant authorities which he applied to the facts as he found them. No error has been demonstrated.

5. Rowbotham Application

[68] Seifert applied for a stay of proceedings until state funding was provided. Legal aid had been refused him. After receiving formal notice of an intention to prosecute from Italy, Seifert transferred his undivided half-interest in the family home to his wife. He was able to engage counsel in Italy to pursue two appeals. He produced no financial documentation relating to his assets and liabilities in support of his request for state funding. There was no basis for a stay on Rowbotham principles.

[69] Grounds 6 and 7 should be considered together.

6. Constitutional Challenge to s. 47(b) of the Extradition Act; and

7. Refusal to Entertain a Charter Challenge (s. 7), on an Allegation of Mala Fides

[70] Section 47(b) provides:

47. The Minister may refuse to make a surrender order if the Minister is satisfied that

* * *

(b) the person was convicted in their absence and could not, on surrender, have the case reviewed;

[71] Seifert's counsel did not make it clear what was unconstitutional about s. 47(b). I infer that since the in absentia proceedings were allegedly contrary to fundamental justice, the Minister should have a broader discretion not to surrender than provided in s. 47(b). In any event, this subject and the mala fides question of Italy's conduct were found by the judge to be matters for the Minister and beyond his jurisdiction. In particular, he ruled that he could only entertain matters related to the committal process and that allegations relating to Italy's decision to try the case in a military tribunal rather than a civil court, the widespread publication of the wartime photograph of Seifert when identification was the key issue, other negative publicity, and ineffective assistance of counsel appointed to represent him, are all matters for consideration at the surrender stage and do not affect the integrity or the fairness of the committal stage.

[72] The judge accepted that he had jurisdiction to consider the allegation of an improper motive in conducting his trial in absentia rather than first seeking his extradition because arguably the impropriety could affect the integrity of the committal.

[73] Seifert proposed calling Italian lawyers to provide the foundation for these arguments. This is where the Charter challenge broke down. The judge was given no material relating to the evidence the lawyers could offer to establish an air of reality to the mala fides question. The judge, quite properly in my opinion, refused to infer mala fides simply from the sequence of the proceedings. He ruled (Ruling No. 5, 2003 BCSC 991):

[59] There may be any number of reasons why the Government of the Republic of Italy proceeded first with the respondent's trial, conducted in absentia, and then sought his extradition from Canada. In support of his allegations that Italy acted out of improper motives, the respondent asserts the following: Italy was aware of his presence in Canada; it commenced and concluded a trial of the respondent in his absence; after his appeal rights in Italy had been exhausted, it commenced extradition proceedings; and, state actors should be taken to have intended the results they achieved. While the respondent alleges that Italy deliberately orchestrated the proceedings to deprive the respondent of the right to a fair trial and to use evidence so obtained to support its request for extradition, he has not provided any basis upon which to raise such allegations from conjecture and speculation to the "air of reality" necessary to warrant embarking on a Charter hearing. Particularly given that committal hearings are intended to be an expeditious determination of whether the requesting state's evidence meets the prima facie standard test, I conclude that the respondent has failed to persuade me that there is sufficient potential merit to his claim to justify a hearing into this aspect of his Charter application.

[60] In the event I am wrong in this regard, however, I would nevertheless have declined to permit the Italian lawyers to testify on the grounds that their evidence is not logically probative as discussed below.

[74] As to the jurisdiction to entertain the s. 7 Charter challenge to s. 47(b), the judge said in Ruling No. 6, 2003 BCSC 1099:

[13] I have no hesitation in concluding that I do not have jurisdiction to consider the constitutionality of s. 47(b) of the Act. Section 25 of the Act limits my Charter jurisdiction to "functions that the judge is required to perform in applying this Act". The Supreme Court of Canada has also made it amply clear in the passages from United States of America v. Kwok, [(2001), 152 C.C.C. (3d) 225], and United States of America v. Cobb, [(2001), 152 C.C.C. (3d) 270], cited above that the extradition judge does not have plenary Charter jurisdiction, but that rather, his Charter jurisdiction is restricted to matters relevant to the committal stage of the extradition process. Section 47(b) has absolutely no bearing on the committal hearing, pertaining as it does to Ministerial discretion whether to order surrender after an order for committal has been issued. It is therefore inappropriate for me to rule on the constitutionality of this provision.

[75] With respect, this conclusion is soundly based on the law and I would not interfere with it.

Judicial Review of the Surrender Order

[76] As with the grounds on appeal, I will begin this section by addressing the most important point taken by Seifert.

8. Reasonable Apprehension of Bias

[77] The concern for bias is said to be related to the Minister's discretion provided in s. 44(1)(a) of the Act:

44. (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that

(a) the surrender would be unjust or oppressive having regard to all the relevant circumstances;

[78] As mentioned earlier, Seifert's argument is that as a former advocate for Jewish causes related to the Holocaust and the necessity of bringing Nazi war criminals to justice, the Honourable Irwin Cotler could not be seen as fair-minded in addressing the question whether it would be unjust or oppressive to extradite an elderly man who led a blameless life in Canada for over 50 years for matters that occurred in 1944 and 1945. The argument also extends to the other submissions alleging breaches of fundamental justice by Italy.

[79] In submissions to the Minister, Seifert's counsel produced a number of materials such as news reports, a speech to a human rights conference, and commentaries on the campaign of Mr. Cotler (then a law professor) on behalf of B'Nai Brith and the Canadian Jewish Congress to keep the memory of the Holocaust alive and to pursue war criminals associated with it.

[80] Counsel for Seifert requested wide-ranging disclosure of the Minister's prior advocacy, which was denied.

[81] In one submission, counsel produced a list of prior activities said to give rise to an apprehension of bias:

4. The Minister presently has established a long track record of connection to and advocacy of the State of Israel, particulars of which are as follows:

a) family connections and identity at the ceremony of swearing in;

b) educational background;

c) lobbying efforts on behalf of the State of Israel;

d) applications in Israeli courts;

e) dealing with the case of John Demjanjuk;

f) political statements identifying "Nazi Hunting" as a necessary result of prosecution of Second World War Criminals;

g) direct involvement through InterAmicus Human Rights Group in the Demjanjuk case;

h) public statements about a "cycle of impunity";

i) Mr. Cotler's intervention in the Finta case;

j) Mr. Cotler's involvement with the Deschenes Commission, exaggerating the number of alleged "Nazi war criminals";

k) exaggerated claims made publicly outside the Deschenes Commission;

l) unequal application of the standard of justice;

m) Mr. Cotler's accusations of Canadian indifference to the Holocaust and preferring Nazis to Jews;

n) Mr. Cotler's public statements as Minister of Justice;

o) Mr. Cotler's political statements about the nature of the Holocaust;

p) Canadian Jewish Congress demands upon Mr. Cotler personally to change the system so remaining suspects can be prosecuted more quickly;

q) Mr. Cotler's public statements as Minister connecting anyone who may escape conviction under the law with Holocaust denial;

r) Mr. Cotler's statements at the Stockholm International forum on the Holocaust in January 2000;

s) the inequality in treatment between Soviet and Nazi war criminals commented on January 21, 2004 in the Kingston Whig-Standard and the Carleton University School of Journalism Capital News.

5. From the foregoing public utterances, it is entirely clear that Mr. Cotler has politically identified himself with the necessity to find guilt for political, religious, and political reasons. Notwithstanding the probability that a trial may not be adequate, Mr. Cotler has identified himself with the view that punishment is essential. This general perception, amply demonstrated by the foregoing observations, supported by the specific Schedule of actual statements attached, would clearly demonstrate to any reasonable person that it would be impossible for Mr. Cotler to exercise impartiality in the case of Michael Seifert, charged by Italian authorities, and tried in his absence.

[82] In the surrender decision, the Minister answered the apprehension of bias claim:

Reasonable Apprehension of Bias

You submit that because of statements I made and opinions I expressed, both before and after taking office as Minister of Justice, that a reasonable person would be apprehensive about my ability to fairly consider the issue of your client's surrender.

You indicate that your assertions of apprehension of bias are not linked to my identity as a Jewish person, but rather to what I have expressed or advocated as a law professor, as a member of the Canadian Jewish Congress, as a supporter of the State of Israel, and as Minister of Justice.

I readily concede that throughout my career I have spoken out strongly on the need to pursue, apprehend, and bring to justice those accused of war crimes and crimes against humanity, but I equally see no reason to recuse myself from this case because I hold these views. It is hardly unexpected that as Minister of Justice, I have spoken out against impunity for those accused of serious crimes. This would be expected of any Minister of Justice. Your assertion that I have advocated for the conviction and punishment of individuals accused of war crimes regardless of the merits of the case against them is unfounded. My well-known commitment to human rights, both as Minister of Justice and previously, speaks for itself.

The Supreme Court recognized in Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851 that the duty of impartiality imposed on judges does not require that they have no sympathies or opinions, but rather that they keep an open mind. In my view, this principle applies with equal or perhaps greater justification to the performance of the duties assigned to me by the Act, considering that my role in deciding surrender is political rather than judicial in nature and "falls at the extreme legislative end of the continuum of administrative decision making" (Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631.

You have not persuaded me that a reasonably informed person would be apprehensive that my personal views would in any way impair my ability to carry out my responsibilities according to law and to fairly and with an open mind, consider Mr. Seifert's case in accordance with the principles of fundamental justice. Moreover, I am satisfied that in the context of my political function as Minister of Justice, I have complied with the procedural safeguards that operate in deciding the issue of surrender and, accordingly, can decide this case without bias and with an open mind.

[83] For the reasons that follow, I think that was a satisfactory answer. What emerges on a review of the materials supporting the bias claim is a persistent and urgent theme: that there must be no impunity for war crimes. That is hardly a controversial proposition. Canada was a prominent player on the international stage in promoting the Rome Statute of the International Criminal Court, for the very purpose of preventing impunity. One of the recitals to the preamble of the statute reads:

PREAMBLE

The States Parties to this Statute,

* * *

Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,

* * *

Resolved to guarantee lasting respect for and the enforcement of international justice,

Have agreed as follows: ....

[84] One scholar, in an article entitled "Redressing Impunity for Human Rights Violations: The Universal Declaration and the Search for Accountability", 26 Denv. J. Int'l L. & Pol'y 591 at 595, defined impunity:

III. THE NATURE OF IMPUNITY

One authoritative United Nations rapporteur has defined impunity as "the impossibility, de jure or de facto, of bringing the perpetrators of human rights violations to account – whether in criminal, civil, administrative or disciplinary proceedings – since they are not subject to any inquiry that might lead to them being accused, arrested, tried and if found guilty, convicted." Impunity, then, means exemption or freedom from punishment and connotes the lack of effective remedies for victims of crimes. Within the context of human rights law, impunity implies the lack of or failure to apply remedies for victims of human rights violations.

[Emphasis added.]

[85] Consistent with its international commitments, Canada enacted the Crimes Against Humanity and War Crimes Act, S.C. 2000 c. 24, the full title of which is:

An Act respecting genocide, crimes against humanity and war crimes and to implement the Rome Statute of the International Criminal Court, and to make consequential amendments to other Acts

[86] The goal pursued by the Minister in his prior life was the achievement of what has become an international norm and one which Canada has embraced.

[87] As the Minister asserted in the passage quoted above, there is nothing in his record that advocates punishment for war crimes regardless of the merits. Neither could I find any expression of a position that would negate the operation of the discretion in s. 44(1)(a) of the Extradition Act in the case of an alleged war crime.

[88] The Minister said in his decision that he brought an open mind to his consideration of the case. As a Minister of the Crown, he takes on the mantle of office and leaves behind the role of advocate, but he is not required to abandon his beliefs and convictions and they can operate within the duty of fairness in the political exercise of his surrender function.

[89] In Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, Bastarache J. was asked to recuse himself on a reasonable apprehension of bias arising from past writings on the area relating to the appeal. In reasons dismissing the motion, he wrote, at paras. 2-3:

The test for apprehension of bias takes into account the presumption of impartiality. A real likelihood or probability of bias must be demonstrated (R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paras. 112 and 113). I find nothing in the material submitted by the applicant that would cause a reasonable person who understands the complex and contextual issues to believe that I would not entertain the various points of view with an open mind.

Given the nature of the aforesaid material, it is fitting to quote Cory J. in S. (R.D.), at para. 119, on the relevance of past experience to the question of apprehension of bias:

The requirement for neutrality does not require judges to discount the very life experiences that may so well qualify them to preside over disputes. It has been observed that the duty to be impartial

does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those with whom we share the planet. Indeed, even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities of humanity required of a judge. Rather, the wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave.

True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.

(Canadian Judicial Council, Commentaries on Judicial Conduct (1991), at p. 12.)

It is obvious that good judges will have a wealth of personal and professional experience, that they will apply with sensitivity and compassion to the cases that they must hear. The sound belief behind the encouragement of greater diversity in judicial appointments was that women and visible minorities would bring an important perspective to the difficult task of judging. See for example the discussion by the Honourable Maryka Omatsu, "The Fiction of Judicial Impartiality" (1997), 9 C.J.W.L. 1. See also [Richard F. Devlin, "We Can't Go On Together with Suspicious Minds: Judicial Bias and Racialized Perspective in R. v. R.D.S." (1995), 18 Dalhousie L.J. 408], at pp. 408-9.

[90] The political aspect of the Minister's role was described this way in Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631 at 659:

Parliament chose to give discretionary authority to the Minister of Justice. It is the Minister who must consider the good faith and honour of this country in its relations with other states. It is the Minister who has the expert knowledge of the political ramifications of an extradition decision. In administrative law terms, the Minister's review should be characterized as being at the extreme legislative end of the continuum of administrative decision-making.

[91] In Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, 2003 SCC 45, the Band, which was unsuccessful on the appeal, [2002] 4 S.C.R. 245, 2002 SCC 79, moved for an order vacating the judgment on the basis that Mr. Justice Binnie, who participated in the judgment, was disqualified by reason of his involvement in the case as Associate Deputy Minister of Justice 20 years earlier. The court refused the motion, having found no reasonable apprehension of bias. The court reaffirmed the long-standing test for reasonable apprehension of bias, at para. 60:

In Canadian law, one standard has now emerged as the criterion for disqualification. The criterion, as expressed by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [[1978] 1 S.C.R. 369], at p. 394, is the reasonable apprehension of bias:

... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."

[92] I am unable to say that the Minister's prior involvement in causes related to war crimes meets that test.

9. Refusal of Disclosure and an Oral Hearing

[93] The Minister had a discretion whether to provide disclosure or conduct an oral hearing as requested. Seifert has not demonstrated to my satisfaction that either was necessary for a fair process.

[94] In this regard, I respectfully adopt what was said by the Ontario Court of Appeal in United States of America v. Whitley (1994), 94 C.C.C. (3d) 99 at 112, aff'd [1996] 1 S.C.R. 467, 104 C.C.C. (3d) 447:

In making his surrender decision, the Minister did owe a duty of fairness to the appellant. This duty exists at common law and is one of the principles of fundamental justice in s. 7 of the Charter. In the event the Minister breaches his duty, this court has jurisdiction to grant relief under s. 25.2(7) of the Act and by reference, s. 18.1(4)(b) of the Federal Court Act.

But the content of an administrative decision-maker's duty of fairness varies depending on the nature of the proceedings, the consequences of the decision for the individual affected and any applicable statutory provisions: Knight v. Indian Head School Division No. 19 (1990), 69 D.L.R. (4th) 489, [1990] 1 S.C.R. 653, 43 Admin. L.R. 157, and Syndicat des Employes de Production du Quebec et de L'Acadie v. Canada (Canadian Human Rights Commission) (1989), 62 D.L.R. (4th) 385, [1989] 2 S.C.R. 879, 11 C.H.R.R. D/1. The Minister's surrender decision is political in nature, not judicial. It lies at the legislative end of the spectrum of administrative decision-making. The Minister is obligated to ensure that a fugitive has adequate disclosure of the case against him and a reasonable opportunity to state his or her own case. The Minister, however, is not obligated to hold an oral hearing nor is he required to provide the kind of disclosure or the kind of procedural safeguards applicable in judicial proceedings. He is not bound by the record before the extradition judge but may consider other material relevant to the exercise of his discretion, and he is not even obligated to provide detailed reasons for his decision though he certainly did so in this case: Kindler v. Canada, [(1991), 67 C.C.C. (3d) 1, 84 D.L.R. (4th) 438, [1991] 2 S.C.R. 779], Idziak v. Canada (Minister of Justice) (1992), 77 C.C.C. (3d) 65, 97 D.L.R. (4th) 577, 12 C.R.R. (2d) 77 (S.C.C.).

10. Italy's Conduct – Abuse of Process?

[95] The principal allegation of abuse is the decision to proceed with a trial before extradition. At paragraph 73 of these reasons, I have set out the judge's opinion on the sequence of proceedings. The Minister said in his decision that Seifert cannot be heard to complain about in absentia proceedings he refused to join:

A review of the judgment of the Italian trial court indicates that it considered the evidence and defences put forward, entered acquittals on six of the fifteen charges, and satisfied itself that the offences on which convictions were entered were "established and proved".

Nevertheless, I must consider whether surrendering Mr. Seifert in these circumstances would cause him to face a situation which is "simply unacceptable".

In Canada, criminal trials generally require the presence of the accused. However, the right to be present at one's trial is not absolute. It can be waived, allowing the trial to proceed in the absence of the accused, if he or she absents himself or herself from trial or interrupts the proceedings so that continuation in his or her presence would not be feasible (R. v. Czuczman (1986), 26 C.C.C. (3d) 43 (Ont. C.A.).

As noted previously, Italian authorities took reasonable steps to notify Mr. Seifert of his trial. Having been notified of the proceedings, he simply chose to have the trial proceed in his absence, without even instructing court-appointed counsel.

With respect to your claim that Mr. Seifert was unable to defend himself, I note that defence counsel was appointed by the court to act for Mr. Seifert at his trial, that counsel asked questions of the witnesses and made submissions on Mr. Seifert's behalf, and that Mr. Seifert was, in fact, acquitted on 6 of the 15 charges for which he was tried.

Further, I note that, with the assistance of counsel he retained, Mr. Seifert appealed the conviction. He retained a second lawyer to act for him on the appeal in July 2001. On October 18, 2001, the Military Court of Appeal dismissed Mr. Seifert's appeal. He further appealed to the Supreme Court of Causation [Cassation], the final appellate court, with the assistance of counsel. That appeal was also dismissed.

As the Court of Appeal for Ontario noted in R. v. Czuczman, supra, Mr. Seifert should not be able to thwart the rights of others and of society by deliberately not participating at his trial.

[96] I agree with these remarks.

[97] It was also argued that there was an inordinate delay in making the request for extradition. The record shows that Italy moved promptly when they discovered Seifert's whereabouts. There is no merit in the argument that Italy's conduct amounts to an abuse of process.

11. Unjust or Oppressive?

[98] In applying his mind to s. 44(1)(a) of the Act, the Minister considered all of Seifert's personal and family circumstances bearing on the question: age, health, family connections, his good behaviour in Canada and his reputation in the community. The Minister referred to the leading case on the subject: United States of America v. Burns, [2001] 1 S.C.R. 283, 151 C.C.C. (3d) 97, 2001 SCC 7.

[99] The Minister concluded with this:

The convictions for which Mr. Seifert is wanted for the enforcement of sentence are serious.

If Mr. Seifert is not surrendered, Canada would be denying its extradition partner's legitimate treaty request and allowing Mr. Seifert to escape justice (U.S.A. v. Cotroni, [1989] 1 S.C.R. 1469).

I am also mindful that it is important that Canada not be a safe haven for fugitives from justice, including its own citizens. The Supreme Court of Canada emphasized this in United States v. Burns, supra.

Neither the fact that Mr. Seifert's family members will suffer from the loss of a husband and father nor the support shown by members of the community would, in my view, justify a refusal of surrender in this case.

[100] The standard of review of the Minister's decision whether surrender would be unjust or oppressive is correctness: Ganis v. Canada (Minister of Justice), 216 C.C.C. (3d) 337, 2006 BCCA 543.

[101] Seifert must be accountable for his criminal acts. They are high crimes of the worst order. They overwhelm his personal circumstances. It is not unjust or oppressive for him to face the consequences of nine murders accompanied by extreme cruelty. I think the Minister was correct in his determination under s. 44(1)(a).

12. Parallel Proceedings

[102] The extradition and the Citizenship revocation proceedings did not cross over in any way. Since the evidence in one did not appear in the other, it cannot be said that Seifert was prejudiced in any way.

[103] The proceedings were also independently pursued without coordination between government departments or between the respective officials acting in concert.

[104] Each was validly based on separate grounds: criminal conduct in Italy for extradition; and making a false declaration on emigrating to Canada in the case of the revocation.

[105] Seifert's rights in the extradition were not compromised by the revocation.

13. Dissolution of Parliament

[106] The proposition that the Minister lost the authority to issue the surrender order when Parliament was dissolved is unsupported by reason or authority. It is said that the Minister lost his mandate. If that were so, all governance would grind to a halt until the next election, which is absurd.

[107] It is sufficient to refer to Professor Hogg's text, Constitutional Law of Canada, 4th ed. (Toronto: Carswell, 1997) at 256:

The period between the dissolution of one House of Commons and the election of another may be as long as several months, but the government must remain in office and exercise its functions: the country cannot be left without any government at all.

Disposition

[108] I would dismiss the appeal and the petition for judicial review.

“The Honourable Mr. Justice Donald”

I agree:

“The Honourable Madam Justice Huddart”

I agree:

“The Honourable Mr. Justice Smith”

Citation:	*Italy v. Seifert,*
	2007 BCCA 407