United States v. Pakulski

United States v. Pakulski Collection Decisions of the Court of Appeal Date 2015-07-21 Neutral citation 2015 ONCA 539 Docket numbers C57319 Judges Simmons, Janet M.; Tulloch, Michael H.; Huscroft, Grant Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: United States v. Pakulski, 2015 ONCA 539 DATE: 20150721 DOCKET: C57319 Simmons, Tulloch and Huscroft JJ.A. BETWEEN The Attorney General of Canada on behalf of the United States of America and the Minister of Justice Respondents and Joanna Pakulski Applicant Joanna Pakulski, in person Daniel Sheppard, duty counsel for the applicant Heather J. Graham, for the respondents Heard: April 8, 2015 On application for judicial review of the reconsideration decision of Minister of Justice dated January 27, 2015, maintaining the surrender order dated June 13, 2013. By the Court: [1] The applicant seeks judicial review of the reconsideration decision of the Minister of Justice dated January 27, 2015. In that decision, the Minister concluded that an order dated June 13, 2013 surrendering the applicant for extradition to the United States should be maintained. [2] If surrendered, the applicant will face a charge in New York of engaging in a conspiracy to distribute and possess with intent to distribute 100 kilograms or more of marijuana. It is alleged that between 2003 and 2007, she participated in a cross-border conspiracy with others to traffic hundreds of kilograms of marijuana from Canada into the United States and that her role was to collect the cash proceeds from drug sales and transport them back into Canada. On March 15, 2008, Canadian border authorities located US$59,540 concealed in the paneling of her car. [3] The applicant was committed for extradition on July 31, 2012. On January 29, 2014, this court dismissed her appeal from the committal order and referred her application for judicial review of the June 13, 2013 surrender order back to the Minister for reconsideration. This court made the referral for reconsideration in light of a change in the appellant’s personal circumstances: she gave birth to a child on March 18, 2013. [4] In his reconsideration decision, the Minister rejected the applicant’s arguments that a surrender order would violate the s. 7 Charter rights of her and her child and be unjust or oppressive under s. 44(1)(a) of the Extradition Act, S.C. 1999, c. 18. He also rejected her argument that, particularly in light of her role as the sole caregiver to a young child, a proper Cotroni analysis makes clear that surrender would violate the s. 6(1) Charter rights of both the applicant and her child and would not be saved under s. 1 of the Charter. [5] On her application for judicial review to this court, the applicant contends that, having regard to the interests of her child, the Minister’s decision was unreasonable in three respects. [6] First, she says that in reaching his conclusion under s. 7 of the Charter and s. 44(1)(a) of the Extradition Act, the Minister failed to adequately consider her role as the sole caregiver to her young child and the significant impact her surrender would therefore have on her child – as demonstrated by an expert assessment she had obtained. She contends that the Minister’s decision rested on generalizations and failed to adequately consider the case-specific information that was presented in this case. Further, she says the Minister made a palpable and overriding error in concluding that the applicant’s surrender “would not leave [the child] without the support and care of a family member.” [7] We do not accept these submissions. In the assessment report the applicant obtained, the assessor noted that the applicant rents a one-bedroom apartment from her mother in a Toronto home and that the applicant had stated she was “well supported by her mother … and several siblings.” Having regard to these statements it was open to the Minister to conclude that the applicant’s surrender would not leave her child without the support and care of a family member. [8] Further, the Minister’s reconsideration decision demonstrates that he was fully aware of the applicant’s role as the sole caregiver of her child and the assessment report she had obtained. Nonetheless, after reviewing the relevant principles, the Minister concluded that the applicant’s personal circumstances and the potential impact of her surrender on her child do not warrant refusing to honour Canada’s obligations to the United States and that her surrender would not be “shocking to the Canadian conscience … or unjust or oppressive.” [9] In our view, the Minister took account of the relevant considerations, and the applicant has failed to demonstrate that his conclusion was unreasonable. [10] Second, the applicant argues that the Minister’s decision is unreasonable because he failed to properly consider the impact of the differing sentencing regimes that exist in Canada and the United States and, in particular, the likelihood that the applicant would qualify for the Mother-Child Program if prosecuted, convicted, and sentenced to imprisonment in Canada. This program would allow the applicant’s child to live with her if she were incarcerated in the federal system. The Minister also failed to properly consider other differences in the manner in which any sentence might be served (e.g. conditional sentence) that could impact the child’s security of the person. [11] We do not accept these submissions. The Minister specifically adverted to the applicant’s submissions concerning the differences in the sentencing regimes in Canada and the United States and to the potential impact on her son of her incarceration in the United States as compared to her incarceration in Canada if she were prosecuted and convicted in Canada. In doing so, he referred explicitly to the existence of the Mother-Child Program in Canada, to the absence of a similar program in the United States, and to the evidence filed by the applicant concerning the possibility of a conditional sentence. [12] We see nothing unreasonable in the Minister’s consideration of these issues or in his decision. In particular, we observe that the fact that the Mother-Child Program exists in Canada does not mean that it would be available to the applicant in the place where she was incarcerated if she were prosecuted and incarcerated in Canada. Nor would the availability of the program at a particular institution mean that the applicant and her child would qualify for it. In any event, as the Minister noted, the Supreme Court of Canada has repeatedly upheld surrender decisions where the person sought for extradition was potentially facing a lengthy mandatory jail sentence upon conviction in the requesting state: United States of American v. Jamieson, [1996] 1 S.C.R. 465; United States of American v. Whitley, [1996] 1 S.C.R. 467; United States of America v. Ross, [1996] 1 S.C.R. 469. [13] Finally, the applicant argued that the Minister’s decision is unreasonable because he rejected submissions that his decision should be guided by UK Supreme Court and European Court of Human Rights decisions concerning Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221, Eur. T.S. 5 (“European Convention on Human Rights”) as Article 8 does not correspond to s. 6(1) or s. 7 of the Charter. The applicant claims that this conclusion is inconsistent with the position the Minister took before the Supreme Court of Canada in M.M. v. Minister of Justice Canada on behalf of the United States of America, Court File No. 35838, appeal heard and reserved on March 17, 2015[1], that Article 8 jurisprudence is informative of issues that arise at the surrender phase of extradition proceedings. [14] We do not accept this argument. The Minister’s statements in this case concerning Article 8 were in response to the applicant’s submissions concerning s. 6(1) of the Charter and, in particular, her reliance on BH & Anor v. The Lord Advocate & Anor (Scotland), [2012] UKSC 24. In that case, the UK Supreme Court considered the best interests of six children of two parents sought for extradition on drug charges as an aspect of the Article 8 right to respect for private and family life, and held that only in exceptional circumstances would private or family life outweigh the legitimate goal of extradition. [15] The Minister noted that the s. 6(1) rights of the child are not engaged in this case as the child is not the person sought for extradition and that extradition of the appellant would not result in removal of her child from Canada. The Minister went on to note that Article 8 does not correspond to s. 6(1) or s. 7 of the Charter and the UK decision has “no direct application” to the applicant’s case. [16] In his factum in M.M., the Minister makes the same observation, noting that the Charter does not have any provision identical to Article 8. Nonetheless, he adds that judicial consideration of the best interests of the child in the article 8 context “can be informative”, and goes on to explain why his decision in that case is consistent with principles of international law as contained in the European Convention on Human Rights and the Convention on the Rights of the Child, Can. T.S. 1992 No. 3. [17] We fail to see any material inconsistency between the Minister’s position as articulated in this case and his position as set out in his factum in M.M. [18] The application for judicial review is therefore dismissed. Released : “Janet Simmons J.A.” “MT” “M. Tulloch J.A.” “JUL 21 2015” “Grant Huscroft” [1] On appeal from Canada (Attorney General) (United States) v. M.M., 2012 QCCA 1142, leave to appeal to S.C.C. granted, [2014] S.C.C.A. No. 252 and M.M. v. Canada (Minister of Justice)(United States of America), 2014 QCCA 681, leave to appeal to S.C.C. granted, [2014] S.C.C.A. No. 252.