2007 BCCA 498 Scarpitti v. United States of America

Docket: CA033216

Between:

Michael James Scarpitti also known as

Tre Arrow, Joshua Murray, Matthew Hill, John Pierce and “Ridge”

Appellant

And

The Attorney General of Canada

On Behalf of the United States of America

Respondent

And

On Appeal from the Decision of the Minister of Justice, The

Honourable Vic Toews, on April 24, 2006 at Ottawa, Ontario

Between:

Michael James Scarpitti

Appellant

And:

Canada (Minister of Justice) and

Canada (Minister of Citizenship and Immigration)

Respondents

Before:	The Honourable Chief Justice Finch
	The Honourable Mr. Justice Donald
	The Honourable Mr. Justice Smith

J.J. Blazina	Counsel for the Appellant
J.G. Johnston	Counsel for the Respondent Attorney General of Canada on behalf of the United States of America and the Minister of Justice of Canada
K. Reimer	Counsel for the Respondent Attorney General of Canada on behalf of the Minister of Citizenship and Immigration Canada
Place and Date of Hearing:	Vancouver, British Columbia April 18, 2007
Place and Date of Judgment:	Vancouver, British Columbia
October 19 , 2007

Written Reasons by:

The Honourable Chief Justice Finch

Concurred in by:

The Honourable Mr. Justice Donald

The Honourable Mr. Justice Smith

I INTRODUCTION

[1] Mr. Scarpitti appeals from the 7 July 2005 order of the British Columbia Supreme Court committing him for extradition to the United States of America (USA) for trial on offences alleged to have been committed in the State of Oregon in 2001.

[2] Mr. Scarpitti also applies for judicial review of the order of the Minister of Justice made on 24 April 2006 which surrendered him to the United States (US) without the conditions Mr. Scarpitti sought to have imposed in the event of surrender.

[3] In support of both the appeal and the application for review, Mr. Scarpitti applied to adduce fresh evidence. Those applications were not opposed by the Attorney General or the Minister.

[4] For the reasons that follow, I would dismiss both the appeal from committal and the application for judicial review of the surrender order.

[5] In September 2000, Mr. Michael Scarpitti changed his name to Tre Arrow, in accordance with the laws of the State of Oregon. Pursuant to his request, Mr. Michael Scarpitti will hereinafter be referred to as Mr. Tre Arrow.

II BACKGROUND

[6] The USA has requested the extradition of Mr. Arrow on multiple counts of arson and related charges in Oregon. These charges stem from two separate incidents. The requesting state alleges that in the early morning hours of 15 April 2001 Mr. Arrow, in concert with Jacob Sherman, used incendiary bombs with time-delay mechanisms to set fire to three concrete-mixing trucks at Ross Island Sand and Gravel in Portland, Oregon. The requesting state also alleges that on 1 June 2001, Mr. Arrow, in concert with Mr. Sherman, Angela Cesario, and Jeremy Rosenbloom, used incendiary bombs with time-delay mechanisms to set fire to three logging trucks and a Caterpillar wheel loader at Ray A. Schoppert Logging, Inc. in Eagle Creek, Oregon.

[7] Mr. Arrow was arrested on 13 March 2004 in Victoria, British Columbia on criminal charges for shoplifting, assault and obstructing a police officer. On 16 March 2004 Mr. Arrow was reported under section 44 of the Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27 for “serious criminality” and on security grounds (section 36(1)(c) IRPA). The matter was referred to an admissibility hearing. On 19 April 2004 Mr. Arrow was released from custody on the outstanding criminal charges and was subsequently detained pursuant to proceedings under the IRPA. On 20 April 2004 Mr. Arrow claimed refugee status in Canada, alleging he would face persecution in the United States for his political opinions. His refugee claim was suspended pending the outcome of his admissibility hearing.

[8] On 12 July 2004 Mr. Arrow was found inadmissible to Canada pursuant to section 36(1)(c) of the IRPA on the ground of “serious criminality” and a Deportation Order was made against him. On 14 July 2004 the suspension of his refugee claim was removed, and Mr. Arrow was deemed eligible to make a refugee claim. His case was referred to the Refugee Protection Division of the Immigration and Refugee Board.

[9] On 4 August 2004 Mr. Arrow was arrested pursuant to a request from the US. By a Diplomatic Note dated 13 September 2004, American authorities requested Mr. Arrow’s extradition. On 7 October 2004, the Minister of Justice issued an Authority to Proceed, authorizing extradition proceedings against Mr. Arrow. By operation of section 105 of the IRPA, Mr. Arrow’s refugee protection proceedings were suspended as a result of the issuance of the authority to proceed, pending the Minister’s final decision regarding the appellant’s discharge or surrender under the Extradition Act, S.C. 1999, c. 18.

[10] The extradition hearing proceeded on 27-29 June and 7 July 2005 before the Honourable Madam Justice Gill of the British Columbia Supreme Court. Mr. Arrow advanced two main arguments in this hearing. First, he argued that Article IV, paragraph 2(iv) of the Treaty on Extradition between the Government of Canada and the Government of the United States of America, [1976] Can. T.S. No. 3 and s. 46(2)(c) of the Extradition Act are unconstitutional insofar as they exclude the offences in respect of which his extradition is sought from being considered offences of a political character. Second, Mr. Arrow took issue with the evidence relied upon by the Requesting State for the committal hearing, specifically the evidence of his alleged co-conspirators, Mr. Sherman, Ms. Cesario, and Mr. Rosenbloom. Mr. Arrow argued that the “co-conspirators exception” to the rule against hearsay should apply, and that its application should lead to his discharge.

[11] Madam Justice Gill held that the court did not have jurisdiction to consider the constitutional issue raised by Mr. Arrow. She also held that it was not necessary to consider the co-conspirators’ exception as it was not engaged in the circumstances of this case. As a result, on 7 July 2005 Madam Justice Gill committed Mr. Arrow on the offences listed in the Authority to Proceed to await the decision of the Minister of Justice on surrender or discharge pursuant to the Extradition Act.

[12] Mr. Arrow made a number of submissions to the Minister of Justice concerning his potential surrender to the United States. He argued that the Minister of Citizenship and Immigration was biased against him in the admissibility hearing. He said the framework of the IRPA placed the Minister of Citizenship and Immigration in an adversarial position to refugee claimants. As a result, he argued that the requirement that the Minister of Justice consult with the Minister of Citizenship and Immigration prior to rendering his decision on surrender (section 40(2) of the Extradition Act) tainted the Minister of Justice with the perception of bias.

[13] Mr. Arrow also claimed that section 105 of the IRPA was unconstitutional insofar as it has deprived him of an independent and impartial assessment of his refugee claim. He argued that he should be granted an oral hearing by the Minister. He sought disclosure of all the records considered by the Minister of Justice as a matter of fundamental justice. He asked the Minister of Justice to postpone the decision on surrender to await the decision of the Court of Appeal on Mr. Arrow’s appeal from committal.

[14] Mr. Arrow also argued that his surrender should be denied on the basis that it would be unjust or oppressive in all of the circumstances of this case, because the offences for which his extradition was sought are offences of a political character. He argued his surrender was sought for a political purpose.

[15] Finally, Mr. Arrow submitted that if the Minister decided to surrender him, the Minister must seek assurances that Mr. Arrow would be provided with a raw vegan diet while in custody in the USA, would not be prosecuted on counts 5 and 14 of the US superseding indictment and for any offence other than those for which his surrender has been ordered, and finally, that he would receive credit for the time spent in pre-trial custody in Canada related to the US request for his extradition. Mr. Arrow sought assurances that he be provided with a raw vegan diet while in custody on the basis that as a follower of Essene Christianity religious beliefs, Mr. Arrow adheres to a dietary regime restricted to fresh fruit and vegetables. Mr. Arrow is a “raw foodist”.

[16] On 24 April 2006, after considering Mr. Arrow’s submissions and consulting with the Immigration Minister, the Minister of Justice ordered the Appellant’s surrender without assurances to the USA. The Minister held that there was no reasonable apprehension of bias. The Minister held that section 105 of the IRPA is constitutional according to current Canadian law, and that he was therefore entitled to rely on it. The Minister held that he had no statutory authority to order an oral hearing before the Immigration and Refugee Board. He also held that it has not been established that an oral hearing before the Minister was necessary. He held that Mr. Arrow has been provided with the disclosure required by Canadian law, and that no further disclosure was necessary or relevant to assist the decision on surrender.

[17] The Minister held that it is not necessary to postpone the decision on surrender pending the outcome of Mr. Arrow’s appeal from the decision of the extradition judge.

[18] He held that surrender was not unjust or oppressive in all of the circumstances of this case, and that he did not have to refuse Mr. Arrow’s surrender on the basis that the offences with which he was charged in the USA were “offences of a political character”. The Minister was not persuaded that there was any evidence that the USA sought to punish Mr. Arrow for his political opinion. Finally, the Minister decided that assurances were not required in this case, as authorities in the USA advised him that they would do their best to accommodate Mr. Arrow’s dietary needs and that the local prison where Mr. Arrow will be housed, if surrendered, provides vegan meals as do the federal prison and pre-trial detention facility in Sheridan, Oregon.

III THE APPEAL AND THE APPLICATION FOR JUDICIAL REVIEW

[19] Mr. Arrow appeals from the order for committal and applies for judicial review of the order for surrender. On the appeal, Mr. Arrow seeks an order for disclosure of all correspondence and documents, including cooperation agreements between the US government and his alleged co-conspirators. He seeks an order remitting the application for a stay of the order of committal to the British Columbia Supreme Court on two grounds. First, Mr. Arrow states that as most of the evidence implicating him is that of his alleged co-conspirators, there was no reliable evidence upon which to base the order for committal. Second, he says that the 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, 2006 SCC 33, and United Mexican States v. Ortega; United States of America v. Fiessel, [2006] 2 S.C.R. 120, 2006 SCC 34, decided after the committal order was made, gives the extradition judge the discretion to examine critically, and if necessary the power to exclude, evidence in deciding whether the order for committal should be granted. He states that, in light of Ferras, the order of committal should be re-evaluated by a judge exercising this discretion. Mr. Arrow also seeks an order requiring the attendance of various potential witnesses for the purpose of examination on oath at that hearing, including his alleged co-conspirators, investigator Special Agent Cary Cahoon, and Mr. Stephen F. Peifer, Assistant United States Attorney for the District of Oregon.

[20] On the application for judicial review, Mr. Arrow seeks an order setting aside the decision to surrender him and directing that his application for refugee status be heard and finally determined prior to the Minister reconsidering whether to order the Applicant’s surrender. Mr. Arrow seeks this order on the basis that the Minister’s decision was made in a manner that violated his right to procedural fairness. Specifically, Mr. Arrow argues that he did not have a meaningful opportunity to consider or respond to the case summary prepared by the Minister of Citizenship and Immigration. Mr. Arrow also says that the decision to order his surrender without assurances violated the principles of fundamental justice guaranteed by section 7 of the Charter. Finally, Mr. Arrow seeks an order declaring section 105 of the IRPA unconstitutional.

IV DISCUSSION

A. The order for disclosure.

[21] Mr. Arrow seeks disclosure of all correspondence and documents, including cooperation agreements, between the United States government and his alleged co-conspirators. He says such disclosure will support his contention that he is an innocent man falsely implicated in both conspiracies to commit arson.

[22] As noted above, the Authority to Proceed alleged that Mr. Arrow had been involved in two conspiracies to commit arson. The record of the case states that the alleged co-conspirators pleaded guilty to their involvement on one of these conspiracies (the Eagle Creek bombing) and had “agreed to cooperate and testify” in any further trials or court proceedings. Mr. Sherman is expected to testify that he and Mr. Arrow ignited incendiary devices at Ross Island Sand and Gravel on 15 April 2001. Mr. Sherman, Ms. Cesario, and Mr. Rosenbloom are expected to testify that they and Mr. Arrow ignited and attempted to ignite devices at Ray A. Schoppert Logging, Inc. at Eagle Creek.

[23] These guilty pleas were made as a result of “plea agreements”. In the plea agreements, the US Department of Justice agreed that, in exchange for the guilty pleas and cooperation of Mr. Sherman, Ms. Cesario, and Mr. Rosenbloom, it would dismiss all other charges against them with respect to the arsons, bring no further charges with respect to those events, and agree to a sentence of 41 months.

[24] Mr. Arrow argues that the fact that the guilty pleas tendered by Mr. Sherman, Mr. Rosenbloom and Ms. Cesario were made because of “plea agreements” renders them unreliable. He seeks disclosure of all documents relating to the US government and the co-conspirators in order to demonstrate that there has been improper communication between the US Government and the alleged co-conspirators, and that he has been unfairly targeted with false allegations. In other words, Mr. Arrow alleges state misconduct on the part of the USA.

[25] In R. v. Larosa (2002), 166 C.C.C. (3d) 449 (Ont. C.A.), Doherty J.A. of the Ontario Court of Appeal described the test for ordering the production of documents and compelling testimony in support of allegations of state misconduct at para. 76:

[76] In my view, before ordering the production of documents and compelling testimony in support of allegations of state misconduct, this court should be satisfied that the following three criteria have been met by the applicant.

· the allegations must be capable of supporting the remedy sought;

· there must be an air of reality to the allegations; and

· it must be likely that the documents sought and the testimony sought would be relevant to the allegations.

[26] Doherty J.A. defines an “air of reality” as some realistic possibility that the allegations can be substantiated if the orders requested are made.

[27] On the material before us, I am unable to see any air of reality to the allegations that the alleged co-conspirators falsely implicated Mr. Arrow in order to obtain plea agreements. The reasoning of Romilly J. in the United States of America v. Freimuth (2004), 183 C.C.C. (3d) 296 (B.C.S.C.), at para. 56, is apposite. In Freimuth, Romilly J. stated:

Allegations of misconduct by foreign authorities should not be given any credence without further proof. In the absence of such evidence, entertaining allegations that foreign officials are misleading our Courts “conveys a reflection of the gravest possible kind, not only upon the motives and actions of the responsible government, but also impliedly upon the judicial authorities of a neighbouring and friendly power”: United States of America v. Turenne, [1998] M.J. No. 541 (Q.B.), [1999] 8 W.W.R. 405 at para. 25. See also United States of America v. Akrami, [2000] B.C.J. No. 2000, 2000 BCSC 1438 at para. 21.

[28] There is no evidence before us of any improper communication between the US Government and the co-conspirators. I would dismiss the application for disclosure of all communications between the alleged co-conspirators and the USA.

B. Remitting the application for a stay of the committal order.

[29] Mr. Arrow was committed for extradition to the USA on 7 July 2005. On 21 July 2006 the Supreme Court of Canada concurrently released decisions in Ferras and Ortega. Ferras modified the test for extradition, previously set out in United States of America v. Shephard (1976), [1977] 2 S.C.R. 1067, 30 C.C.C. (2d) 424.

[30] Ferras was judicially considered in Ontario in United States of America v. Thomlison (2007), 216 C.C.C. (3d) 97, 2007 ONCA 42; and United States of America v. Anderson (2007), 219 O.A.C. 369, 2007 ONCA 84. In Thomlison, the Ontario Court of Appeal held that:

[8] […] so long as there is some evidence, that is available for trial and not manifestly unreliable, on every element of the parallel Canadian crime, upon which a reasonable jury, properly instructed, could convict, the test for committal will have been made out, regardless of any opinion the extradition judge might have about the strength of the case or the likelihood of conviction. The ultimate question of guilt or innocence is not for the extradition judge; it is reserved for the trial court in the foreign jurisdiction.

[31] Ferras was first applied in this jurisdiction in United States of America v. Graham, [2007] B.C.J. No. 1390, 2007 BCCA 345. In that case, Donald J.A. rejected the “reductionist interpretation” of Ferras adopted by the Ontario Court of Appeal, stating that, in his “respectful opinion…[it] does not give full scope to the reasoning in” Ferras. Donald J.A. described the impact of Ferras, and held that it requires more than the rejection of evidence that is manifestly unreliable:

[20] In Ferras, the Supreme Court of Canada addressed the problem created by two developments since Shephard was decided: the Charter of Rights and Freedoms, particularly s. 7, and the amendments to the Extradition Act, S.C. 1999, c. 18, that brought in the ‘record of the case’ modality which was intended to ease the burden on the requesting state and which admitted evidence not admissible under Canadian law: s. 32(1)(a) and (b).

[21] The court [in Ferras] decided that the Shephard approach did not bring a close enough scrutiny to the case for extradition, that it led to a rubber stamp process, and that in order for the Act to conform to the fundamental justice requirements of s. 7, the law had to move on from Shephard. Those requirements meant that the extradition judge must act only on reliable and available evidence and assess the evidence as a whole to determine the sufficiency of the case for committal. It is in relation to sufficiency that the controversy arises over the meaning of Ferras.

…

[23] […] [T]he Ferras approach … demands a judicial appraisal of the case to ensure that there is a “plausible case” and that the subject is not committed on a case where “it would be dangerous or unsafe to convict, [and] the case should not go to a jury” (Graham, para. 23 citing Ferras, para. 54).

[32] Donald J.A. held that Ferras stands for the proposition that:

[32] […] extradition judges now have the discretion to disregard evidence shown to be unreliable or unavailable. In respect of the evidence that remains, extradition judges have the discetion to determine by an assessment of the evidence, including a limited weighing of the evidence, whether it is sufficient for a properly instructed jury acting reasonably to reach a verdict of guilty in Canada (Graham, para. 32).

[33] Ferras was decided after the order for committal was made in this case. The first question to be addressed is whether in fairness or as a matter of practicality there must be a new committal hearing. As noted by Donald J.A. in Graham:

[34] […] The argument for a new hearing is that the judge was not aware of the discretion available to her and that there are now avenues of defence, such as the impeachment of evidence, and an expanded range of argument, opened up by Ferras that were not explored in the hearing below.

[34] The alternative to a new hearing is for this Court to review the evidence in light of the new rule. This was the approach taken by the Supreme Court of Canada in Ferras, and followed by this Court in Graham and in Italy v. Seifert, [2007] B.C.J. No. 1722, 2007 BCCA 407. In my opinion that is the appropriate course in the present case. The record of the case and the supplemental record are there to be read and considered. This Court is in as good a position as the extradition court to carry out a reassessment.

C. Assessment of the evidence.

[35] There are two questions for this Court to decide with respect to the committal order. The first is whether the appellant’s argument on appeal that the committal evidence (and specifically, the evidence of the co-conspirators) is “manifestly unreliable” would have made any difference in this case had the extradition judge been able to consider this issue. The second issue is whether the evidence that survives scrutiny would form a sufficient basis on which a properly instructed jury acting reasonably could reach a verdict of guilty in Canada.

1. Should evidence be excluded as being manifestly unreliable?

[36] In the record of the case, it is alleged that the acts of arson at Ross Island Sand and Gravel Company were committed by the appellant in concert with Mr. Sherman. It is also alleged that the acts of arson at Ray A. Schoppert Logging, Inc., were committed by the appellant in concert with three others: Mr. Sherman, Mr. Rosenbloom, and Ms. Cesario.

[37] Paragraph 12 of the record of the case states that:

Sherman, Rosenbloom and Cesario will testify that they all pleaded guilty in the United States District Court for the District of Oregon to the Schoppert Logging arson. All three received 41-month prison sentences, they will state, and they agreed to cooperate and testify in any further trials or court proceedings.

[38] Counsel for Mr. Arrow argues that this Court should exercise its discretion to exclude the evidence of the alleged co-conspirators as being “manifestly unreliable”. I respectfully disagree.

[39] Committal evidence, certified in the manner prescribed by s. 33(3) of the Extradition Act, is presumptively reliable. Mr. Arrow seeks to impeach the reliability of the evidence attributed to his alleged co-conspirators as being “manifestly unreliable” on the basis that the three individuals have agreed to testify against him as the result of plea agreements reached with US authorities.

[40] The fact that the alleged accomplices of Mr. Arrow are now co-operating witnesses against him as a result of the plea agreements does not render the evidence attributed to them in either the record of the case or the supplementary record of the case “manifestly unreliable”.

[41] In Canada, evidence given by an accomplice is not inherently untrustworthy. In Vetrovec v. R. (1982), 67 C.C.C. (2d) 1 at 11 (S.C.C.), Dickson J. (as he then was), writing for a unanimous Court, stated that “[t]here is nothing inherent in the evidence of an accomplice which automatically renders him untrustworthy”. Rather, he stated that “[a]n accomplice is to be treated like any other witness testifying at a criminal trial” (p. 17).

[42] Moreover, there is nothing in the record of the case or the supplementary record of the case to suggest that the specific evidence of Mr. Sherman, Mr. Rosenbloom and Ms. Cesario is so defective or manifestly unreliable that it would be dangerous or unsafe to convict.

[43] In short, there is no “air of reality” to the claim that the evidence of these witnesses is “manifestly unreliable”. The points raised by Mr. Arrow go to credibility. These arguments may persuade a jury to disregard the evidence, or some of it, or to give it little weight, but they fall well short of weakening the case to the extent that committal should be refused. I would not give effect to this ground of appeal.

2. Is the evidence as a whole sufficient to support a guilty verdict in Canada?

[44] In Graham, Donald J.A. states that under Ferras, the assessment of sufficiency involves a “holistic appraisal of the case”. As noted in Ferras:

[54] Challenging the justification for committal may involve adducing evidence or making arguments on whether the evidence could be believed by a reasonable jury. Where such evidence is adduced or such arguments are raised, an extradition judge may engage in a limited weighing of evidence to determine whether there is a plausible case. The ultimate assessment of reliability is still left for the trial where guilt and innocence are at issue. However, the extradition judge looks at the whole of the evidence presented at the extradition hearing and determines whether it discloses a case on which a jury could convict. If the evidence is so defective or appears so unreliable that the judge concludes it would be dangerous or unsafe to convict, then the case should not go to a jury and is therefore not sufficient to meet the test for committal (para. 29).

(Emphasis added.)

[45] Donald J.A., in Graham, states that the language used in Ferras suggests the kind of analysis described in R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15 at para. 35 and 40, which describes the test as importing both an objective assessment and, to some extent, a subjective one. It requires the appeal court to “determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and, within the limits of appellate disadvantage, weigh the evidence”. As an additional safeguard, the judge must make this assessment through the lens of judicial experience.

[46] In my opinion, a properly instructed jury acting reasonably could, on the evidence presented, convict Mr. Arrow of arson and the other acts alleged in the authority to proceed. A summary of the evidence that Mr. Arrow committed these acts is contained in the record of the case and the supplemental record of the case. This evidence has been certified in the manner prescribed by s. 33 of the Extradition Act, and is thus presumptively reliable. This evidence comes primarily from Mr. Arrow’s co-conspirators. However, in Vetrovec, the Supreme Court of Canada has held that evidence given by an accomplice is not inherently untrustworthy. There is nothing in the record of the case or the supplementary record of the case to suggest that the evidence of Mr. Arrow’s alleged co-conspirators should be excluded.

[47] I would not give effect to this ground of appeal.

3. Attendance of persons for examination on the application for a stay of the committal order.

[48] As I would refuse to remit the hearing for the application for a stay of the order of committal to the Supreme Court of British Columbia, it is not necessary to address this question.

Conclusion: order from committal

[49] I would not set aside the order of committal. As noted above, there is nothing to suggest the evidence of the alleged co-conspirators is manifestly unreliable. Further, a properly instructed jury acting reasonably could, on the evidence, convict Mr. Arrow of arson and the related acts arising from the events alleged.

D. The order for surrender.

[50] Mr. Arrow states that the order for surrender was made in a manner which violated his right to procedural fairness and the principles of fundamental justice guaranteed by section 7 of the Charter. As a result, Mr. Arrow submits that the application for judicial review of the surrender order be allowed, the decision to surrender the Applicant be set aside, and the application for refugee status be heard and finally determined prior to the Minister reconsidering whether to order the Applicant’s surrender. For the following reasons, I would not set aside the decision to surrender Mr. Arrow.

[51] The first consideration is the issue of the duty of procedural fairness.

[52] Mr. Arrow relies upon R. v. Singh, [1985] S.C.J. No 11, [1985] 1 S.C.R. 177 as support for his contention that the duty of procedural fairness requires the granting of an oral hearing as part of his application to seek refugee status. Singh states that an oral hearing may not be necessary in every determination of refugee status. However, Dickson C.J. and Lamer and Wilson JJ. held that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing.

[53] In my opinion the test established in Singh does not apply to the case at bar. Singh deals with the procedural requirements for the adjudication of refugee status claims. The processing of Mr. Arrow’s refugee claim was suspended by section 105 of the IRPA. At that point, the process mandated by the Extradition Act was engaged.

[54] Mr. Arrow had an oral hearing during the committal stage of the extradition process. The scope of the duty of procedural fairness owed by the Minister to a person sought at the surrender stage of extradition proceedings is set out by Laskin J.A. in Whitley v. United States of America (1994), [1994] O.J. No. 2478, 20 O.R. (3d) 794 (O.C.A.).

[55] In Whitley, Laskin J.A. stated that:

[34] […] 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.

[56] The denial of an oral hearing during the surrender stage of the extradition proceedings is not a denial of procedural fairness, provided that Mr. Arrow had a reasonable opportunity to state his case through written submissions.

[57] Mr. Arrow says he was denied the procedural fairness required by section 7 of the Charter at the ministerial stage of the extradition proceedings, to the extent that he did not have a meaningful opportunity to consider or respond to the case summary prepared by the Minister of Citizenship and Immigration, referred to in the Minister’s decision on surrender (MCI Case Summary). In support of this submission, Mr. Arrow relies on the affidavit of Timothy J. Russell, former counsel for the appellant, admitted by consent on appeal as fresh evidence.

[58] With respect, Mr. Russell’s affidavit does not fully describe what occurred in this case in relation to the circumstances surrounding the disclosure of the MCI Case Summary and Mr. Arrow’s opportunity to comment on this material.

[59] Specifically, it appears that Mr. Russell was advised by Ms. Gagliardi, counsel for the International Assistance Group, by her letter of 7 April 2006 enclosing the Summary that the MCI Case Summary would follow by courier on 10 April 2006 and that Mr. Russell was also advised by this letter that he had until 13 April 2006 to provide any additional comments to the Minister in relation to this material. The summary also reproduces that portion of the MCI Case Summary specifically brought to the Minister’s attention and ultimately referred to the decision to Surrender.

[60] Mr. Russell’s assertion that he only became aware of the MCI Case Summary over the weekend of 22-23 April 2006 does not appear to be correct. Ms. Gagliardi’s letter of 7 April 2006 and the enclosed Summary both make references to this document. The MCI Case Summary was delivered to Mr. Russell’s office on 11 April 2006. Mr. Russell responded to the 7 April 2006 correspondence by his letter to Ms. Gagliardi dated 13 April 2006. The time constraints imposed by the 24 April 2006 deadline for the Minister’s decision on surrender were not inflexible. Mr. Arrow refused an April 2006 request by the International Assistance Group at the Department of Justice to extend the deadline for the Minister’s decision beyond 24 April 2006.

[61] On the material before us it appears that Mr. Arrow was afforded and availed himself of the opportunity to provide additional comments to the Minister in relation to the Summary, and that Mr. Arrow had the opportunity to respond to the MCI Case Summary and chose not to exercise this right beyond his letter of 13 April 2006. In these circumstances, I am satisfied that Mr. Arrow had adequate disclosure of the case against him and a reasonable opportunity to state his own case. I conclude that Mr. Arrow was afforded procedural fairness at the Ministerial stage of the extradition proceedings as required by section 7 of the Charter.

[62] The second consideration is whether the order for surrender infringed the principles of fundamental justice guaranteed by section 7 of the Charter.

[63] Specifically, the issue is whether the surrender of Mr. Arrow without assurances is contrary to the principles of fundamental justice guaranteed by section 7 of the Charter, or unjust or oppressive within the meaning of section 44(1)(a) of the Extradition Act. The answer to this question depends on whether the surrender “sufficiently shocks the Canadian conscience” or is “simply unacceptable”: United States of America v. Burns (2001), 151 C.C.C. (3d) 97, 2001 SCC 7 at paras. 67-69. The same standard applies to this determination under both section 7 and section 44(1)(a): United States of America v. Fordham (2005), 196 C.C.C. (3d) 39 (B.C.C.A.) at para. 13.

[64] Mr. Arrow is a “raw foodist”. He adheres to a strict diet, eating only raw food consisting of fresh fruit and vegetables that have been grown organically and are not packaged. His belief in raw foodism is closely connected to his environmentalist and Essene Christian beliefs. Mr. Arrow alleges that if he is extradited to Oregon, there is a real possibility he would be in danger of malnourishment or severe health problems due to the lack of a suitable diet. As a result, Mr. Arrow insists that surrender without an assurance that he will be provided with a raw vegan diet as a condition of his surrender is contrary to section 7 of the Charter, or “unjust or oppressive” within the meaning of section 44(1)(a) of the Extradition Act.

[65] The standard of review of the legal question of whether surrender would contravene section 7 of the Charter or section 44(1)(a) of the Extradition Act is one of correctness. Any factual findings made by the Minister underpinning this legal determination, however, are entitled to significant deference on review and can only be disturbed if patently unreasonable: Thailand (Kingdom) v. Saxena (2006), 207 C.C.C. (3d) 106 (B.C.C.A.) at paras. 46-48.

[66] The Minister concluded that it was not necessary for him to seek an assurance that Mr. Arrow will be provided with a raw vegan diet as a condition of his surrender, relying on the fact that the Requesting State has stated its intention to do its best to accommodate Mr. Arrow’s dietary needs. The Requesting State has advised that if Mr. Arrow is surrendered, the local prison where he will be housed pending trial, provides vegan meals, that the federal prison and the pre-detention facility at Sheridan, Oregon also provides vegan meals, and that in the United States, and particularly in Oregon, vegan diets are recognized as raw food diets that include fresh fruits and vegetables.

[67] The Minister was entitled to rely on the representations provided by the Requesting State without the need for further inquiry. For this Court or the Minister to reject these representations would be to impugn the good faith and integrity of the Requesting State: Gervasoni v. Canada (Minister of Justice), [1996] B.C.J. No. 506 (C.A.) at para. 27-28. As noted in Gervasoni:

[27] The accuracy of advice and information conveyed, and of representations made, like compliance with undertakings given in international diplomatic communications, is a matter of national honour, any breach of which carries serious international repercussions.

[28] The advice or representation given by the United States … is integral to the Minister's decision to issue the warrant of surrender without further consideration of the question of … assurances.

[68] In my respectful opinion the Minister applied the correct legal test to the question of whether Mr. Arrow’s surrender without assurances would be contrary to section 7 of the Charter or unjust or oppressive under section 44(1)(a) of the Extradition Act. On the basis of the factual information provided by the Requesting State, the Minister concluded that his refusal to seek an assurance with respect to Mr. Arrow’s dietary needs would not make his surrender “shocking to the Canadian conscience” or “unjust or oppressive”. I can see no basis for interfering with the Minister’s decision to surrender Mr. Arrow without assurances.

E. Does the operation of section 105 of the IRPA infringe section 7 of the Charter?

[69] As part of his application for judicial review, Mr. Arrow challenges the constitutionality of section 105 of the IRPA, which provides that a person’s refugee claim is deemed to be rejected if the person sought is ordered surrendered under the Extradition Act. Mr. Arrow argues that section 105 violates section 7 of the Charter because the operation of section 105 results in the final determination of his refugee claim without an oral hearing.

[70] This issue was addressed by this Court in United States of America v. Maydak (2004), 190 C.C.C. (3d) 71. In Maydak, the appellant, like Mr. Arrow, was facing extradition to the United States and had made a refugee claim. In the course of the extradition proceedings, Mr. Maydak argued that section 105 of the IRPA, the “deemed rejection” section, was of no force and effect because it violates section 7 of the Charter.

[71] Writing for the court, Oppal J.A. held that the extradition process provided sufficient procedural safeguards to satisfy the requirements of the Charter. He held the lack of an oral hearing did not in and of itself constitute a breach of section 7, provided that the appellant has had full disclosure and a full opportunity to respond to the allegations against him.

[72] In the present case, Mr. Arrow was afforded all of the substantive and procedural safeguards mandated by the committal process including several opportunities to make submissions and present evidence. He received an oral hearing before the extradition judge at which he was entitled to make submissions and present evidence. Following his committal by Madam Justice Gill, he was provided with an opportunity to make submissions to the Justice Minister as to why he should not be ordered surrendered to the USA. As part of that process, the Appellant was provided with all of the relevant information and advice produced for the Minister of Justice’s consideration including the MCI Case Summary.

[73] The extradition process followed in Mr. Arrow’s situation was consistent with the Charter and principles of natural justice. The surrender of Mr. Arrow does not violate section 7 of the Charter. In these circumstances, for the reasons provided by the court in Maydak, it is neither necessary nor appropriate to consider whether section 105 of the IRPA, at large, is contrary to the provisions of the Charter.

[74] For the foregoing reasons, I would dismiss the application for judicial review.

“The Honourable Chief Justice Finch”

I agree:

“The Honourable Mr. Justice Donald”

I agree:

“The Honourable Mr. Justice Smith”

Citation:	*Scarpitti v. United States of America,*
	2007 BCCA 498