Schreiber v. Canada (Attorney General)

Schreiber v. Canada (Attorney General) Collection Decisions of the Court of Appeal Date 2008-04-15 Neutral citation 2008 ONCA 286 Docket numbers C48552, M36204 Judges Doherty, David H. Subject Civil Decision Content CITATION: Schreiber v. Canada (Attorney General), 2008 ONCA 286 DATE: 20080415 DOCKET: M36204-C48552 COURT OF APPEAL FOR ONTARIO DOHERTY J.A. BETWEEN: KARLHEINZ SCHREIBER Applicant and THE MINISTER OF JUSTICE Respondent Edward L. Greenspan, Q.C. for the applicant Nancy Dennison for the respondent Heard: April 14, 2008 An application for release pending judicial review of the decision of the Minister of Justice dated March 17, 2008. ENDORSEMENT [1] The merits of this most recent in a stream of judicial review applications may be dubious. I cannot say, however, at this stage of the proceedings, that the application is so devoid of merit as to be “frivolous” within the meaning of the statutory provisions governing bail pending judicial review. [2] The power of the Minister to decline to consider further submissions under s. 43(2) of the Extradition Act does not appear to have been addressed in the case law. The issue is potentially of some significance to the operation of the Act and the conduct of the Minister. The applicant has made a showing of sufficient merit to clear the very low bar set in the provision governing bail pending judicial review. [3] The respondent acknowledges that the applicant meets the other statutory criteria for release pending judicial review. He has been on bail without incident for eight and a half years. [4] An order will go releasing the applicant on the same terms as the release order made by Sharpe J.A. and dated December 4, 2007 with the following variations: · Paragraph 1 of the order will be varied to require the applicant to surrender as directed by the court or a judge of the court; and · The sureties shall be those listed in the order of Sharpe J.A. save that Michael Cochrane shall not be a surety and John Harding shall be a surety in the amount of $350,000. [5] The respondent requests an expedited hearing of the judicial review application. I direct that the applicant perfect the application no later than May 15, 2008. After the application is perfected, counsel may arrange to speak to me and I will fix a date for the hearing. [6] Lastly, as explored with counsel in the course of oral submissions, I am troubled by the notion that the applicant should be in custody regardless of whether he is seeking judicial review of the Minister’s decision. His custody is justifiable only as an incident of his surrender to Germany in accordance with Canada ’s international obligations. He is detained to facilitate his surrender. The respondent does not suggest that there is any other possible justification for his custody. [7] The respondent has also acknowledged that it is currently not in the public interest to surrender the applicant to Germany pending his testimony in Canada at an upcoming public inquiry. Consequently, as matters now stand, and they could change, the applicant will not be surrendered to Germany for some time. If he is not going to be surrendered, I do not know how his custody can be justified as an incident to that surrender. [8] The problem outlined above is to my knowledge unique to this case and it may be that some procedural and remedial ingenuity is necessary to meet the circumstances of this case. Custody should not, however, be a default position brought about by procedural or remedial deficiencies. Custody that cannot be justified on the grounds associated with custody in the extradition context may well engage Charter protections. [9] As I am satisfied that the applicant can be released under the bail provisions governing judicial review applications, I do not have to come to grips with the question of his continued custody apart from any judicial review application. That issue, however, may arise at some point in the future. “Doherty J.A.”