United States of America v. Johnson

United States of America v. Johnson Collection Decisions of the Court of Appeal Date 2002-12-12 Docket numbers C37443, C38414 Judges Rosenberg, Marc; Cronk, Eleanore Ann; Gillese, Eileen E. Subject Criminal Decision Content DATE: 20021212 DOCKET: C37443 & C38414 COURT OF APPEAL FOR ONTARIO ROSENBERG, CRONK and GILLESE JJ.A. BETWEEN: THE UNITED STATES OF AMERICA & THE MINISTER OF JUSTICE Respondents - and - TILO A. JOHNSON a.k.a. JOSIAH UMEZURIKE Appellant Kevin Wilson, for the respondents Tilo A. Johnson on his own behalf Heard: September 23, 2002 On appeal from the committal order of Justice Gloria J. Epstein dated November 23, 2001 and on application for judicial review of the Minister of Justice’s surrender order dated May 6, 2002. GILLESE J.A.: [1] Tilo A. Johnson brings an inmate appeal from an order dated November 23, 2001 committing him to be held in custody to await surrender to the United States. On May 6, 2002, Justice Minister Martin Cauchon ordered the surrender of Mr. Johnson to the United States. The appellant also brings an inmate notice of appeal (application for judicial review) from the Minister’s Surrender Order and Warrant. Background [2] In response to a tip from informants, the United States Secret Service investigated the appellant, a Nigerian citizen, for passing counterfeit US $100 bills in Georgia. A secret service agent and an assistant United States attorney monitored a transaction in which the appellant sold twelve US $100 bills to the informants in exchange for $800 cash. The secret service arrested the appellant, who was identified as Josiah Umezurike. Twenty-nine additional federal reserve notes were found on the appellant’s person at the time of his arrest. [3] On June 7, 1996, the appellant pleaded guilty in the United States District Court – Northern District of Georgia to two counts of unlawful exchange of counterfeit obligations. On August 29, 1996, he was sentenced to six months imprisonment, concurrent on each count, to be followed by a three-year term of supervised release and was ordered to pay a special assessment of $100. [4] The conditions of supervised release included the following: to not leave the judicial district without the permission of the court or probation officer; to pay any assessment that remained unpaid at the commencement of the term of the supervised release; to report to the probation officer, as directed by the court or probation officer, and submit a truthful and complete report within the first five days of each month; to truthfully answer all inquiries by the probation officer and follow the instructions of the probation officer; and, to notify the probation officer within seventy-two hours of any change in residence or employment. [5] The appellant served the six-month prison sentence and began the supervised release portion of his sentence on December 24, 1996. According to the unsworn statement of the probation officer, the appellant breached the terms of his supervised release in several respects. She stated that he failed to: pay the special assessment as directed, notify the probation officer of a change in employment and residency, submit monthly supervision reports, obtain permission of the probation officer to leave the Northern District of Georgia or to travel to reside in Ontario, and report to probation since April 27, 1997. He also allegedly provided false information to the probation officer. [6] As a result of these alleged violations, the probation officer filed a “Petition for Warrant and Order to Show Cause Why Supervised Release Should Not Be Revoked”. A U.S. District Court judge ordered a warrant for the appellant’s arrest on January 14, 1998 for breach of his supervised release conditions. [7] According to the material filed in this court by the appellant, in or around May of 1997, he received a letter from the United States Immigration and Naturalization Service (“INS”) that stated that he should leave the United States voluntarily within sixty days. According to the appellant, he followed the dictates of the letter and voluntarily left the United States. He arrived in Canada on August 22, 1997. The appellant says that the letter did not specify where he was to go when he left the United States. He says that he understood that the letter was a departure order and that he was required to leave the United States. [8] On April 5, 1999, the INS ordered the deportation of the appellant to Nigeria. [9] It appears that on July 28, 2000, the appellant was arrested under a Warrant for Provisional Arrest and held in custody at the Toronto East Detention Centre. [10] On September 27, 2000, the United States Embassy filed a diplomatic note requesting the appellant’s extradition. [11] On September 29, 2000, the Minister of Justice issued an Authority to Proceed based on the corresponding Canadian offences of possession of counterfeit money and uttering counterfeit money. On November 9, 2000, the Minister issued a second Authority to Proceed for “enforcement of sentences”. [12] On November 23, 2001, the committal order was issued. [13] On May 6, 2002, the Minister of Justice ordered the surrender of the appellant to the United States. [14] If surrendered, the appellant will face a supervised release revocation hearing before a judge who will investigate the probation officer’s allegations that he breached his supervised release. If there is a finding that he breached the terms of his release, the maximum sentence he will face is two years imprisonment. [15] The appellant alleges that if he is deported to Nigeria, pursuant to the outstanding INS deportation order, his life will be in danger. The Committal Order [16] The extradition judge acted pursuant to s. 29(1)(b) of the Extradition Act, S.C. 1999, c. 18 (the “Act”) which provides: 29. (1) A judge shall order the committal of the person into custody to await surrender if … (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] In accordance with the provisions of s. 29(1)(b), the extradition judge is to order committal if two criteria are met: first, that the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed and, second, that the person before the court is the person who was so convicted. [18] The role of the extradition judge, when acting pursuant to s. 29(1)(a) of the Act, has been consistently held to be limited. Rosenberg J. A., of this court, recently stated in respect of s. 29(1)(a) that: The starting point must be an examination of the role of the judicial phase of the extradition process. That role, described repeatedly as a modest one, is primarily to ensure the identity of the person sought and to protect that person from being surrendered for conduct that we would not recognize as criminal. United States of America v. Yang (2001), 157 C.C.C. (3d) 225 at para. 74 (Ont. C.A.). [19] In my view, the role of the extradition judge when acting pursuant to s. 29(1)(b) is similarly limited. The extradition judge is to ensure that the evidence establishes a prima facie case that the two criteria have been met. [20] Counsel appeared on behalf of the appellant at the committal hearing. Through counsel, the appellant conceded the first criterion. The extradition judge satisfied herself as to the identity of the appellant, thereby meeting the second criterion. [21] The extradition judge properly declined to decide counsel’s submissions in respect of s. 3 of the Act, in my view. She correctly concluded that it is the Minister, not the extradition judge, who is to determine whether Canada’s treaty obligations are engaged with respect to the particular individual whose extradition is being requested. [22] I find no error in the decision of the extradition judge. The Surrender Order [23] Counsel for the appellant made three submissions to the Minister of Justice prior to the Minister’s decision to make the surrender order. [24] First, he argued that s. 3(1)(b)(i) of the Act operated to prevent extradition. Section 3(1)(b)(i) provides that a person may be extradited for the purpose of enforcing a sentence where the conduct of the person, had it occurred in Canada, would have constituted an offence punishable in Canada, in the case of a request based on a specific agreement, by imprisonment for a maximum term of five years or more. The offence in question was the Canadian equivalent of breach of probation. The maximum penalty for breach of probation in Canada is two years imprisonment where the Crown elects to proceed by indictment. Thus, the appellant’s counsel argued, extradition was prohibited by virtue of s. 3(1)(b)(i). [25] Second, he submitted that s. 3(3) of the Act barred extradition because the appellant had already served the totality of his sentence of imprisonment. Counsel argued that extradition could only be ordered where the person who has been sentenced to imprisonment has not completed the totality of his or her sentence and the remaining custodial term is at least six months long. [26] Third, he submitted that extradition should be prevented on humanitarian and compassionate grounds as the appellant had been detained for a significant period of time in deplorable conditions at the Toronto East Detention Centre, where as many as three and sometimes four persons shared one cell. Counsel submitted that “[g]iven that his impugned conduct amounts to nothing more than a breach of probation…his incarceration for so long would be shocking to the public.” [27] At the time of those submissions, the appellant had been in detention for approximately fifteen months. By the time of the Minister’s decision, he had been detained for approximately twenty-two months. [28] Earlier in his submissions, counsel noted that the appellant had been required to leave the United States, during the supervised release portion of his sentence, due to removal proceedings by the INS. He submitted: “It thus appears that the government now seeking Umezurike’s return is the same government that ordered his removal”. [29] The appellant made his own written submissions to the Minister, as well. He referred to his personal circumstances, including the fact that he is married and is the father of a young child in Canada who needs him, that he has made academic progress while in Canada, and that he has not engaged in any criminal activity while in Canada. He alleged that he had been the subject of a beating while in detention, had been denied needed medical care, and has been unjustly treated in the detention centre because he is African. He submitted letters that spoke to his good character and academic performance. [30] The appellant also stated, in his written submissions, that he sought refugee status while in Canada. [31] In a letter dated May 6, 2002 to counsel for the appellant, the Minister responded to the submissions and gave his decision requiring the appellant’s surrender. [32] The Minister considered the first two submissions of the appellant’s counsel, and rejected both. The Minister concluded that s. 3(1)(b)(i) of the Act did not apply. Section 3(1)(b)(i) applies to extradition requests made pursuant to “a specific agreement”. Extradition was not requested pursuant to “a specific agreement”; it was made pursuant to the Treaty on Extradition Between the Government of Canada and the Government of the United States (Amended by an Exchange of Notes), 3 December 1971, Can. T.S. 1976 No. 3 (entered into force 22 March 1976), as amended by the Protocol amending the Treaty on Extradition between the Government of Canada and the Government of the United States, 11 January 1988, Can. T.S. 1991 No. 37 (entered into force 26 November 1991) (the “Treaty”). [33] The Minister noted that s. 3(3) of the Act is expressly subject to the terms of the relevant extradition treaty. The Treaty does not stipulate any minimum remaining period of incarceration. As well, the Minister stated that if the appellant’s supervised release were revoked, he would face a maximum period of incarceration of two years, a period beyond the six-month requirement stipulated in s. 3(3). [34] The Minister expressed the view that the appellant’s personal circumstances were not of such a nature that he should refuse to order surrender. [35] The Minister responded as follows to the submission that extradition should be refused because of the time that the appellant had spent in detention: You have also submitted that Mr. Umezurike has spent a significant period of time in custody as a result of the extradition proceedings, and that I should refuse to order his surrender for this reason. I am of the view that this does not provide a basis for me to decline to order his surrender. It will be for Mr. Umezurike to raise this argument with the appropriate authorities in the United States of America. [36] There is no response in the Minister’s decision letter to the appellant’s alleged claim for refugee status in Canada. Analysis [37] The standard of review by this court, of the Minister’s surrender decision, is set out by Laskin J.A. in United States v. Whitley (1994), 94 C.C.C. (3d) 99 (Ont. C.A.), aff’d (1996), 104 C.C.C. (3d) 447 (S.C.C.) at page 110: These passages, together with the requirements of the Act, indicate that if the Minister violates the fugitive’s constitutional rights or otherwise errs in law, or if the Minister denies the fugitive procedural fairness, acts arbitrarily, in bad faith or for improper motives, or if the Minister’s decision is plainly unreasonable, then the reviewing court is entitled to interfere; otherwise, the court should defer to the Minister’s surrender decision. [38] Intervention with a surrender decision due to an abuse of process or a violation of the Canadian Charter of Rights and Freedoms is warranted when, upon surrender, the individual would face a situation that is shocking to the conscience or which Canadians would find simply unacceptable. See Canada (Minister of Justice) v. Pacificador (2002), 166 C.C.C. (3d) 321 (Ont. C.A.); Re Kindler and Minister of Justice (1991), 67 C.C.C. (3d) 1 (S.C.C.); and United States of America v. Burns (2001), 151 C.C.C. (3d) 97 (S.C.C.). [39] Under s. 40(2) of the Act, before making a surrender order with respect to a person who has claimed Convention refugee status, the Minister “shall consult” with the minister responsible for the Immigration Act. There is nothing in the Minister’s response to the appellant, or in any material filed by the respondent, to indicate that the Minister complied with this mandatory obligation. On that basis alone, the case must be remitted to the Minister. [40] Section 44(1) of the Act provides that the Minister “shall” refuse to make a surrender order if the Minister is satisfied that the surrender “would be unjust or oppressive having regard to all the relevant circumstances”. I have already set out the Minister’s response to the appellant’s submission that he should not be surrendered because of the time spent in Canadian custody. I interpret that passage as a finding that the period of custody was an irrelevant factor. The briefing note prepared by the Minister’s staff indicates that, in all probability, the United States judge will not take the time spent in custody in Canada into account. The Minister erred in law in treating this lengthy period of time, for which the appellant may receive no credit, as irrelevant. The fact that the appellant has spent more time in custody in Canada, in harsh conditions, than he would have received for the offence for which his extradition is being sought is a relevant factor under s. 44. A surrender in those circumstances is capable of being unjust or oppressive. [41] That is not to say that the Minister was bound not to surrender the appellant. There may be reasons that would justify the surrender order notwithstanding the lengthy period of custody in Canada. What I do say is that this was a relevant factor which is capable of falling within s. 44(1) and the Minister was required to give reasons for finding that it did not warrant refusal to surrender. [42] The Minister failed to consider two other relevant matters. The appellant submits that he left the United States at the direction of the INS. This, too, was a relevant factor to be considered and one which is capable of falling within s. 44(1). If the appellant committed the offence, in part, at the direction of the United States government, it could be unjust to now return him to the United States. [43] In addition, the question arises as to whether the United States intends to act upon its deportation order if the appellant is surrendered. Although the letter from the Minister acknowledges that the appellant is subject to an outstanding deportation order, nothing is said about that possibility. If the appellant is sent back to the United States for an enforcement of sentence hearing, will he be subject to deportation? If so, extradition in such circumstances may be unjust, particularly given the appellant’s assertion that his life will be in danger if he is deported to Nigeria. [44] Moreover, it is possible that detention, in the circumstances, amounts to an abuse of process that would shock the Canadian conscience. [45] Again, I do not say that the Minister was bound to refuse surrender. However, given the mandatory nature of s. 44(1)(a), I am of the view that the Minister must consider all relevant circumstances, singly and in combination, to determine whether surrender would be unjust or oppressive. See United States of America v. Bonamie (2001), 293 A.R. 201 (C.A.). [46] In my view, the Minister must give reasons for his decision. The holding of L’Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 43, a case arising in the context of deportation, applies equally to the decision to surrender under the Extradition Act. In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached [emphasis added]. [47] The decision to surrender a fugitive to an extradition party is as important as the humanitarian and compassionate determination under s. 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 (now s. 25(1) of the Immigrant and Refugee Protection Act, R.S.C. 2001, c. 27), dealt with in Baker. The appellant was entitled to reasons that were responsive to the factors relevant to his situation. Conclusion [48] In view of these concerns, the Minister’s surrender order cannot stand. However, in the circumstances, it is not possible for this court to determine whether surrender would shock the Canadian conscience or be unacceptable. [49] I would dismiss the appeal from the committal order. I would grant the application for judicial review, set aside the decision of the Minister of Justice and refer the matter back to the Minister for determination in accordance with these reasons. “E.E. Gillese J.A.” “I agree M. Rosenberg J.A.” “I agree E.A. Cronk J.A.” Released: December 12, 2002