Garcia v. Canada ( Attorney General )
T-382-97
Teitelbaum J.
15/4/97
10 pp.
Application for stay of extradition to United States until after resolution of application for judicial review for order prohibiting Attorney General from surrendering applicant for extradition until resolution of claim for refugee status-Attorney General moved to strike applicant's originating notice of motion on ground Federal Court lacking jurisdiction over extradition matters-Applicant, citizen of U.S.A., alleges facing death penalty in Florida if extradited-Applicant alleging well-founded fear of persecution on basis of race as death penalty applied in discriminatory fashion against Hispanics in U.S.A.-Although Federal Court Rules, R. 419 not directly authorizing striking out of notice of motion, motion to strike appropriate where originating notice of motion so clearly improper as to be bereft of any possibility of success-Federal Court without jurisdiction to hear application for judicial review of extradition decision as ousted by clear and unambiguous terms of Extradition Act-Even if Court had jurisdiction, applicant has failed to prove entitled to interim relief sought-No serious issue to be tried to warrant interim relief-No possibility applicant can be considered Convention refugee and be permitted to remain in Canada-Claim for Convention refugee status ploy to evade inevitable-Filed application four years after first opportunity to do so and only after extradition order-Federal Court Rules, C.R.C, c. 663, R. 419.