2008 BCSC 467err1 Karas v. Canada (Minister of Justice)

Before: The Honourable Mr. Justice McEwan

Reasons for Judgment

Counsel for the Applicant:	C. Bauman
Counsel for The Respondent:	M. Williams
Date and Place of Trial/Hearing:	March 19, 2008
	Vancouver, B.C.

[1] Michael Joseph Charles Karas applies pursuant to section 69(b)(ii) of the Extradition Act, R.S.C. 1999, c. 18, for an order that he be discharged out of custody of the Minister. That section, as it is applicable, reads:

A judge of the superior court of the province in which the person is detained who has the power to grant a writ of habeas corpus, may, on application made by or on behalf of the person, and on proof that reasonable notice of the intention to make an application has been given to the Minister, order the person to be discharged out of custody unless sufficient cause is shown against the discharge if

(b) the person is not surrendered and conveyed to the extradition partner

(ii) if an appeal or judicial review in respect of any matter arising under this Act, or an appeal from such an appeal or judicial review, is pending, within 45 days after the final decision of the court is made.

[2] On March 19, 2008, the motion was heard and I dismissed the application with reasons to follow. These are those reasons.

[3] This matter has a protracted history. In 1996 the Kingdom of Thailand requested the applicant’s extradition from Canada to face prosecution in relation to a homicide. The applicant returned to Canada shortly after the death. He was arrested several days later in Canada for parole violations on other matters and was then arrested on the Thai extradition request.

[4] The applicant was committed for manslaughter on June 1, 2004 by Lysyk J. following an extradition hearing. Over the next several years the applicant made numerous submissions to the Minister. The Minister made the first surrender decision on September 14, 2004, and then, after further communications with Thailand, amended the surrender order twice: on June 16, 2005, and September 2, 2005.

[5] The applicant applied to the British Columbia Court of Appeal for judicial review of the September 2005 surrender decision. The application was heard in May of 2007.

[6] On December 24, 2007, the Court of Appeal handed down extensive reasons setting aside the surrender order and remitting the matter to the Minister with a direction that any further order for the applicant’s surrender be with respect to the offence of manslaughter only.

[7] On February 22, 2008, in accordance with the practice in the Supreme Court of Canada, the Minister filed an application for leave to appeal the decision of the Court of Appeal.

[8] The applicant had applied for bail pending the hearing of his judicial review application, unsuccessfully, in 2005, 2006 and 2007. He has not yet applied for bail pending the leave application to the Supreme Court of Canada.

[9] The applicant’s motion for discharge turns on a particular reading of s. 69(b)(ii) and the 45 day time limit it provides. In Canada (Minister of Justice) v. Reumayr, 2005 BCCA 391, our Court of Appeal considered the provision and observed, per Ryan J.A., at para. 104:

These time limits prescribed in the Act indicate an intention on the part of Parliament to ensure that persons subject to an order of committal do not languish awaiting the Minister’s decision to surrender.

[10] The applicant submits that in accordance with this limitation the Minister is obliged to discharge him, having failed to surrender him and convey him to the extradition partner within 45 days of the “final decision of the court”. This, he submits, must mean the decision of the Court of Appeal. He submits that an application for leave to appeal to the Supreme Court of Canada cannot be interpreted as a “pending” “appeal from … judicial review” because the plain meaning of “pending” according to the Concise Oxford Dictionary (10th Ed.) is:

1. awaiting decision or settlement;

2. about to happen.

He submits that there is no appeal awaiting decision or about to happen, because “leave” is required. He suggests that this is not a statistical probability, and there may never be an appeal, properly speaking. He submits that such an interpretation puts the Minister in the position where he must seek a stay of the effect of such orders, because the legislation properly places the onus on the Minister to seek to expedite appeals.

[11] The applicant further contends that the Extradition Act operates to abridge the 60 day time limit for bringing an application for leave to appeal in the Supreme Court of Canada to 45 days, within which the Minister must “bring an appeal” (how, is not specified), or surrender him to Thailand.

[12] The Minister, for his part, joins the applicant in the view that the 45 day requirement contained in s. 69(b)(ii) conflicts with the procedure in the Supreme Court of Canada, because a leave application precedes the hearing of the appeal proper. The Minister agrees that the language of s. 69(b)(ii) does not encompass “leave” to appeal. The Minister submits, however, that it cannot have been Parliament’s intention to create a remedy that would put a sudden halt to proceedings in the Supreme Court of Canada, and submits that the Court ought not to exercise its jurisdiction under s. 69 in the circumstances, particularly since the applicant has the remedy of seeking judicial interim release in the Court of Appeal under s. 20 of the Extradition Act or of having the leave proceedings in the Supreme Court of Canada expedited.

[13] The Minister did not elaborate, but apparently takes this limited view of the course open to this Court because there are occasions where the shoe is on the other foot (i.e., it is not the Minister who seeks recourse in the Supreme Court of Canada, but a person who is subject to extradition), that is, where the Minister takes the view that he must act within 45 days notwithstanding. For this reason the Minister’s position is founded on this Court declining to apply s. 69, rather than on the basis it may be interpreted in a manner harmonious with the time limitations applied in the Supreme Court of Canada.

[14] The Minister submits, in the alternative, that if s. 69 is applied, the Minister has shown sufficient cause, within its terms, to make out a case against discharge, because he has filed an application for leave to appeal the decision of the Court of Appeal in a timely manner. The Minister submits that to grant the application would effectively render the Minister’s leave application moot.

[15] It may be that I am lacking in subtlety, but I do not share the difficulties both counsel have with s. 69(b)(ii).

[16] Mr. Karas was ordered committed by a judge of this Court acting under s.29. It reads:

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.

[17] The Minister ultimately issued a surrender order under s. 40, which caused Mr. Karas to seek judicial review. Judicial review is governed by s. 57:

57.(1) Despite the Federal Courts Act, the court of appeal of the province in which the committal of the person was ordered has exclusive original jurisdiction to hear and determine applications for judicial review under this Act, made in respect of the decision of the Minister under section 40.

[emphasis added]

[18] When the Court of Appeal rendered its decision, the parties had 60 days to apply for leave to the Supreme Court of Canada. The only possible meaning of an “appeal from … judicial review” in the context of the statute would be the Supreme Court of Canada. The primary meaning of “pending” in the Concise Oxford Dictionary, 3rd Edition Oxford University Press (1973) is “in suspense, not concluded or settled.”

[19] It seems obvious to me that a legal process that affords an appeal period is only “concluded” when the appeal period runs out, or the appeal, taking its ordinary course, proceeds to its termination, whether that be by denial of leave, or abandonment, or adjudication. The period of the 45 day deadline is, as the Minister says in submission:

to prevent situations where persons languish while waiting for the Minister of Justice to make or execute a surrender order … Section 69 is intended to provide an avenue for a person who is the subject of extradition proceedings to appear before a court when there are no more judicial proceedings ongoing in relation to his extradition proceedings.

[20] I also agree with the Minister’s position as expressed elsewhere of his written argument:

In the present situation, where a person has applied for a judicial review of the surrender decision, and the Court of Appeal has sent the matter back to the Minister for reconsideration, but the Minister has instead file a leave application to the Supreme Court of Canada, there would simply be no purpose served by granting a discharge, in other words, ending the extradition proceedings, before the Supreme Court of Canada has made its final decision. After the SCC renders its final decision, s. 69(b)(ii) would require Ministerial action within 45 days. And that makes sense since there would be no other extant leave proceedings in the Supreme Court of Canada.

[21] The distinction the Minister draws seems to be between what he terms “extant leave proceedings” and “pending” proceedings as the term appears in the Act.

[22] I find it difficult to consider the failure of the Act to specify an application for leave to appeal (which is a necessary step in the appeal process, in this context), a troublesome gap. Quite clearly, the Act is meant to provide a remedy where process has been exhausted in the Courts. It does not make sense to suggest that the 45 day period operates to reduce the time limited for initiating process in the Supreme Court of Canada, or to require, contrary to the requirements of that Court, that the process must somehow be advanced past leave before 45 days expires. In this case, in my view, an appeal of the judicial review is “pending” until 60 days expire without an application for leave, or until leave is refused (a final decision), or until the matter has proceeded to a final decision.

[23] If, as both parties seem to agree, I am wrong about that, I would certainly be of the view that in the circumstances, there being an extant process within which the applicant’s liberty may be addressed, I need not apply s. 69. I would, in the further alternative, find, if pressed, that the fact that there is an unresolved process in the Supreme Court of Canada is, per se, sufficient cause to rule against discharge in the circumstances of this case.

[24] The application is accordingly dismissed.

_______________________________

The Honourable Mr. Justice McEwan

May 9, 2008 – Revised Judgment

Corrigendum to the Reasons for Judgment issued advising that on page 2, paragraph 3, the second sentence should be replaced with:

[3] “… In 1996 the Kingdom of Thailand requested the applicant’s extradition from Canada to face prosecution in relation to a homicide.”

This change is made in order that the reasons for judgment comply with s. 26 of the Extradition Act.

Citation:	*Karas v. Canada (Minister of Justice)*,
	2008 BCSC 467