T-127-86
Joseph John Kindler (Petitioner)
v.
M. John Crosbie, Minister of Justice, Attorney
General of Canada (Respondents)
INDEXED AS: KINDLER v. CANADA (MINISTER OF JUSTICE)
Trial Division, Rouleau J.—Montréal, December
18, 1986; Ottawa, January 21, 1987.
Extradition — Petitioner, American citizen, sentenced to
death by U.S. court — Escaped to Canada — Minister
declining to seek assurances from U.S. death penalty not
executed if petitioner extradited — Petitioner's request for
oral hearing to assess credibility denied — No violation of
duty to act fairly — Minister's discretion under Art. 6 Cana-
da-U.S. Extradition Treaty not cognizable by courts unless
error in law going to jurisdiction — Minister accurately
assessing all relevant facts — Taking into account public
policy considerations not constituting error in law — Applica
tion to review Art. 6 decision dismissed — Extradition Treaty
between Canada and the United States of America, Dec. 3,
1971, [19761 Can. T.S. No. 3, Art. 6 — Extradition Act,
R.S.C. 1970, c. E-21, s. 18(1)(a) — Immigration Act, 1976,
S.C. 1976-77, c. 52 — Criminal Code, R.S.C. 1970, c. C-34
— Canadian Charter of Rights and Freedoms, being Part I of
the Constitution Act, 1982, Schedule B, Canada Act, 1982,
1982, c. 11 (U.K.), ss. 7, 12.
Judicial review — Prerogative writs — Certiorari — Natu
ral justice — Duty to act fairly — Ministerial decision to
surrender petitioner, American citizen, to U.S. authorities
without seeking assurances death penalty not executed if
petitioner extradited — Petitioner's request to give oral tes
timony denied — No obligation on decision-maker to give
affected party opportunity to be heard orally in cases where
function not calling for procedure similar to adjudication —
Proper exercise by Minister of discretionary power — Duty to
act fairly including duty to give adequate reasons — Accurate
assessment of all relevant facts — Unnecessary to list each
factor influencing decision — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 18.
The petitioner, an American citizen, was found guilty of
murder and sentenced to death by a United States jury. Prior to
the formal sentence being imposed he escaped from custody but
was arrested in Canada. Extradition proceedings were initiated
and the petitioner was committed to prison to await surrender
to the U.S. authorities. The petitioner now applies for a review
of the Minister's decision, made pursuant to Article 6 of the
Extradition Treaty between Canada and the United States of
America, that Canada should surrender the petitioner without
seeking any assurances from the United States that the death
penalty would not be imposed or, if imposed, would not be
carried out. Prior to making his decision, the Minister heard
submissions by the petitioner's counsel but denied the petition
er's request for an oral hearing. It is argued that the Minister,
in refusing the request for oral testimony, violated the princi
ples of natural justice, that he took into account improper
considerations and that extradition to face capital punishment
constitutes "cruel and unusual punishment".
Held, the application should be dismissed.
The duty to act fairly requires that an individual be given an
opportunity to answer the case against him. However, where
the function does not call for a procedure similar to adjudica
tion, a court should not impose on a decision-maker the obliga
tion to give the affected party an opportunity to be heard
orally, although the deciding body has the duty to give fair
consideration to the representations made before it.
The argument that an oral hearing was necessary for the
petitioner to have his credibility assessed by the respondent
could not be accepted. It is not a function of the Minister in
exercising his discretionary power under Article 6 of the Treaty
to do so. The case had been properly dealt with by the
American criminal justice system and it was not open to
respondent to re-try it. Furthermore, there was nothing that the
petitioner could have added to the information already provided
to the Minister by the petitioner's counsel.
An essential component of the duty to act fairly is the duty to
give adequate reasons upon which an adverse decision is made.
That requirement, however, does not extend to imposing an
obligation on the decision-maker to list every conceivable factor
which may have influenced his decision. In the case at bar, the
Minister's decision demonstrated a fair and accurate assess
ment of the relevant facts, including the personal representa
tions made by the petitioner in his letter to the respondent.
Balanced against this was the Minister's obligation to take into
account the Canadian public interest. As stated in the Rauca
decision, the Minister's discretion under Article 6 "is exercis-
able by the executive only and it is not a question cognizable by
the courts" except in cases of a blatant error in law going to
jurisdiction. By recognizing that the Canadian government
wished to discourage fugitives from seeking refuge in Canada,
the Minister was doing nothing more than stating a policy
decision. That does not constitute an error in law.
The question whether capital punishment constitutes "cruel
and unusual punishment" was left open, the instant case not
constituting the proper forum to debate that issue.
CASES JUDICIALLY CONSIDERED
APPLIED:
Re Federal Republic of Germany and Rauca (1983), 41
O.R. (2d) 225 (Ont. C.A.).
CONSIDERED:
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177; Cardinal et al. v. Director of
Kent Institution, [1985] 2 S.C.R. 643; 63 N.R. 353;
Howard v. Stony Mountain Institution, [1984] 2 F.C.
642; (1985), 57 N.R. 280 (C.A.); Nicholson v. Haldi-
mand-Norfolk Regional Board of Commissioners of
Police, [1979] 1 S.C.R. 311.
COUNSEL:
Julius Grey for petitioner.
D. J. A. Rutherford, Q.C. and S. Marcoux-
Paquette for respondents.
SOLICITORS:
Grey, Cas grain, Montréal, for petitioner.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
ROULEAU J.: This is an application by the peti
tioner under section 18 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10 to review a deci
sion of the respondent, the Minister of Justice,
made on January 17, 1986, pursuant to Article 6
of the Extradition Treaty between Canada and the
United States of America [Dec. 3, 1971, [1976]
Can. T.S. No. 3], in which he declined to request
assurances from the United States authorities that
the death penalty would not be executed if the
petitioner were extradited to that country.
On November 15, 1983 in Philadelphia, Penn-
sylvania the petitioner was found guilty after trial
by Judge and jury of first degree murder, conspir
acy to commit murder and kidnapping. The
offences arose out of a single transaction in which
the petitioner beat and drowned a witness who was
to testify against him in respect of a charge of
burglary.
Pursuant to section 9711 of the Pennsylvania
Sentencing Code [42 Pa. C.S.A.] a separate sen
tencing hearing was held before the same Judge
and jury in order to determine whether the peti
tioner should be sentenced to life imprisonment or
death in respect of the verdict of murder in the
first degree. On November 16, 1983 the jury
decided that the murder was committed under
aggravating circumstances, that it occurred during
the commission of a felony (kidnapping), that the
deceased had been scheduled to testify against the
petitioner and that there were no mitigating cir
cumstances. The jury imposed the sentence of
death.
On September 19, 1984, prior to formal sen
tence being imposed, the petitioner escaped from
custody. He was arrested near Ste -Adèle, Quebec,
on April 25, 1985 and charged with offences under
the Immigration Act, 1976, S.C. 1976-77, c. 52, as
amended and the Criminal Code, R.S.C. 1970, c.
C-34, as amended. On May 27, 1985 the petitioner
brought an application in this Court to prohibit the
holding of an inquiry which had been commenced
pursuant to section 28 of the Immigration Act,
1976 and the application was granted on July 23,
1985 [[1985] 1 F.C. 676 (T.D.)].
On July 3, 1985 a request for the extradition of
the petitioner was submitted to the Government of
Canada by the United States Government pursu
ant to the Canada-USA Extradition Treaty, 1976.
Proceedings under the Extradition Act, R.S.C.
1970, c. E-21 were commenced and on August 26,
1985 an extradition hearing took place before
Pinard J. of the Quebec Superior Court. At that
time, counsel for the petitioner conceded that a
prima facie case for extradition had been made
out on the evidence and accordingly a warrant for
committal of the petitioner to prison to await
surrender to the United States was issued pursuant
to paragraph 18(1)(a) of the Extradition Act. The
only issue left to be decided was whether Article 6
of the Canada-U.S. Treaty required the extradi
tion judge or the Minister of Justice to seek assur
ances from the United States that the death penal
ty would not be executed should the petitioner be
surrendered. On August 30, 1985 Pinard J. issued
his judgment wherein he held that he had no
jurisdiction to request Article 6 assurances from
United States authorities and committed the peti
tioner to custody to await surrender. On the same
day Pinard J. sent a report on the case and a copy
of his judgment to the respondent Minister of
Justice.
Thereafter the petitioner applied for habeas
corpus with certiorari in aid to review the decision
of Pinard J. The matter was heard by Greenberg J.
of the Quebec Superior Court who upheld the
decision of Pinard J. and dismissed the application
on September 20, 1985.
On September 23, 1985 the Assistant Deputy
Attorney General sent a letter to the petitioner's
counsel inviting written submissions to the Minis
ter of Justice prior to the latter making a decision
with respect to Article 6 assurances concerning the
execution of the death penalty and the surrender
of the petitioner. In addition, counsel was asked to
consider the possibility of making oral submissions
directly to the Minister in order to assist him
further in making his decision or to permit the
petitioner's position to be better understood.
Correspondence continued to be exchanged be
tween the parties which eventually resulted in
written submissions being received by the Minister
on December 3, 1985, together with a request for a
somewhat elaborate oral hearing during which the
petitioner himself would present evidence to the
Minister concerning his character, disposition and
past. It was proposed that the hearing be one day
in length and would follow the ordinary format of
quasi-judicial or administrative hearings with wit
nesses being called by any interested party or the
Minister and strict rules of evidence not being
applicable. It was suggested by the petitioner's
counsel that the purpose of such a hearing would
be to allow the Minister to assess the petitioner's
credibility and to show the doubt surrounding his
conviction in the United States. In addition, evi
dence was to be submitted at the hearing relating
to the injustice and inhumanity of the use of the
death penalty.
On December 4, 1985 the Assistant Deputy
Attorney General advised the petitioner's counsel
that while the Minister was prepared to hear oral
representations from the petitioner's counsel there
did not appear to be any justifiable basis on which
the Minister should entertain hearing oral testimo
ny from the petitioner. The Minister was of the
opinion that, in the context of extradition, he could
not be expected to re-try the issue of the petition
er's guilt or innocence.
On January 9, 1986 three counsel for the peti
tioner appeared before the Minister in order to
make oral submissions. The hearing lasted for
approximately one and a half hours, legal argu
ments were made on behalf of the petitioner and
the Minister asked questions. During the hearing a
further request that the petitioner be allowed to
make oral submissions to the Minister was refused.
As a result, the petitioner sent a hand-written
letter to the Minister on January 10, 1986.
On January 17, 1986 the Minister issued his
decision now under challenge by the petitioner.
The Minister concluded that Canada should sur
render the petitioner without seeking any assur
ance from the. United States that the death penalty
would not be imposed or, if imposed, not carried
out.
The petitioner is now before the Court challeng
ing the respondent's decision on the following
grounds:
(1) that the respondent's decision not to hear
oral testimony from the petitioner prior to
making a final decision violates the petitioner's
rights under section 7 of the Canadian Charter
of Rights and Freedoms [being Part I of the
Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)] and/or the
common law;
(2) that the respondent failed to consider all the
relevant facts in making his decision;
(3) that the respondent took into account irrele
vant and improper considerations in making his
decision;
(4) that section 12 of the Canadian Charter of
Rights and Freedoms means that capital pun
ishment is "cruel and unusual punishment" and
extradition to face such a sentence is "cruel and
unusual punishment".
Central to the petitioner's argument is Article 6
of the Treaty of Extradition between Canada and
the United States which provides as follows:
ARTICLE 6
When the offense for which extradition is requested is pun
ishable by death under the laws of the requesting State and the
laws of the requested State do not permit such punishment for
that offense, extradition may be refused unless the requesting
State provides such assurances as the requested State considers
sufficient that the death penalty shall not be imposed, or, if
imposed, shall not be executed.
In relation to the petitioner's first argument
outlined above, it is submitted that by refusing the
petitioner's request for an oral hearing, the
respondent failed to act in accordance with the
high standard of natural justice required in this
case. The petitioner relies on the Supreme Court
of Canada decision in Singh et al. v. Minister of
Employment and Immigration, [1985] 1 S.C.R.
177 wherein Beetz J. stated at page 231:
... threats to life or liberty by a foreign power are relevant, not
with respect to the applicability of the Canadian Bill of Rights,
but with respect to the type of hearing which is warranted in
the circumstances.
The petitioner maintains that it is the effect of a
decision on an individual which is determinative of
the extent of the duty to act fairly and apart from
the Singh decision there is other jurisprudence to
support this proposition. In Cardinal et al. v.
Director of Kent Institution, [1985] 2 S.C.R. 643;
63 N.R. 353, Le Dain J. stated at pages 653-654
S.C.R.; 358 N.R.:
This Court has affirmed that there is, as a general common law
principle, a duty of procedural fairness lying on every public
authority making an administrative decision which is not of a
legislative nature and which affects the rights, privileges or
interests of an individual: Nicholson v. Haldimand-Norfolk
Regional Board of Commissioners of Police, [1979] 1 S.C.R.
311; Martineau v. Matsqui Institution Disciplinary Board (No.
2), [1980] 1 S.C.R. 602; Attorney General of Canada v. Inuit
Tapirisat of Canada, [1980] 2 S.C.R. 735. In Martineau (No.
2), supra, the Court held that the duty of procedural fairness
applied in principle to disciplinary proceedings within a peni
tentiary. Although administrative segregation is distinguished
from punitive or disciplinary segregation ... its effect on the
inmate in either case is the same and is such as to give rise to a
duty to act fairly.
The same emphasis, the petitioner alleges, is
apparent in this Court's decision in Howard v.
Stony Mountain Institution, [1984] 2 F.C. 642;
(1985), 57 N.R. 280 (C.A.) where Thurlow C.J.
said at pages 663 F.C.; 292 N.R.:
... it appears to me that whether or not the person has a right
to representation by counsel will depend on the circumstances
of the particular case, its nature, its gravity, its complexity, the
capacity of the inmate himself to understand the case and
present his defence.
Accordingly, the petitioner argues that the natu
ral conclusion to be drawn is that he is entitled to
an oral hearing in front of the Minister. This is
especially so in light of the fact that the respon
dent based his decision in large part on disbelief of
the petitioner's insistence of his innocence; the
petitioner's credibility and explanation could rea
sonably have changed the result. On this basis the
petitioner asks this Court to quash the respon
dent's decision and to return the matter to the
respondent in order to allow the petitioner to make
oral representations.
It is beyond question that the duty to act fairly
requires that an individual cannot incur the loss of
liberty for an offence unless he has had a fair
opportunity of answering the case against him. In
order to maintain the integrity of governmental
decision-making the effective participation by the
parties affected by these decisions is essential. The
basic objective of the duty to act fairly is to ensure
that an individual is provided with a sufficient
degree of participation necessary to bring to the
attention of the decision-maker any fact or argu
ment of which a fair-minded decision-maker would
need to be informed in order to reach a rational
conclusion.
There are many situations where, in making a
discretionary decision such as the one in this case,
it is desirable to afford the affected party an
opportunity to be heard but where the type of
function involved is not one that calls for a proce
dure akin to adjudication. In such cases a court
should not impose an obligation on the decision
maker to give the affected party an opportunity to
be heard orally, although the deciding body is
required to give fair consideration to any represen
tations which are in fact made to it.
In this case the petitioner argues that an oral
hearing was necessary so that the respondent could
assess the petitioner's credibility and in order to
show the doubt surrounding his conviction. It is
clear however that this was not a function of the
respondent in exercising his discretionary power
under Article 6 of the Treaty. The petitioner's
guilt or innocence of the crimes with which he has
been convicted in the United States has never been
an issue in any of the extradition proceedings
which have occurred to date. If the petitioner
wished to show the doubt surrounding his convic
tion and wanted to have his credibility assessed by
testifying on his own behalf, it was open to him to
do so at the extradition hearing before Pinard J. in
August 1985. The petitioner chose not to do so
and, in fact, conceded that a prima facie case for
extradition had been made out on the evidence.
Therefore, it was most certainly not open to the
respondent to ignore this fact nor that a jury trial
had been conducted in the United States whereby
the petitioner was convicted of the offences with
which he was charged and to re-try a case which
has been properly dealt with through the criminal
justice system of the United States. As stated by
G. V. La Forest in his text Extradition To and
From Canada, 2nd ed., 1977, at page 23:
Generally, as Hagarty, J., said in Re Burley (1865), 1 C.L.J.
34, at p. 50, "The treaty is based on the assumption that each
country should be trusted with the trial of offences committed
within its jurisdiction."
The petitioner has failed to satisfy me that any
reasons exist which would justify an oral hearing
before the respondent. Counsel for the petitioner
has not indicated that there is anything relevant
which the petitioner himself would be able to add
to the information already before the respondent
which was not provided by the petitioner's three
counsel at the time they appeared before the
respondent and were afforded an opportunity to
make submissions on the petitioner's behalf. In my
opinion, that hearing was virtually the equivalent
of the petitioner having an oral hearing in front of
the Minister. In addition, the petitioner sent a
hand-written letter to the respondent prior to the
decision being made. That letter formed part of
the information which was before the Minister
prior to his making a decision and the Minister's
reasons indicate that the statements made by the
petitioner in his letter were taken into consider
ation.
The petitioner's second argument is that the
respondent failed to consider all the relevant facts
and issues in reaching his decision. The respon
dent's decision contains, for example, no reference
to the letters of the petitioner's parents nor to the
psychiatric reports. Accordingly, the petitioner
argues that the possibility or probability of
rehabilitation, an important issue, was never con
sidered by the respondent. The petitioner finds
fault with the respondent's decision because it
included a specific enumeration of things which
were considered thereby leaving one to assume
that any factor not specified was deemed by the
respondent to be unimportant or irrelevant. In
addition, the petitioner maintains that, although
the respondent Minister stated in his decision that
he was mindful of the petitioner's letter, he in fact
discounted it and failed to consider it because of
his concern that he not re-try the case.
In Nicholson v. Haldimand-Norfolk Regional
Board of Commissioners of Police, [ 1979] 1
S.C.R. 311, the Supreme Court of Canada empha
sized that an essential component of the duty to
act fairly is the disclosure by the decision-maker of
the grounds upon which an adverse decision has
been made. A duty to give reasons means that
adequate reasons must be given but leaves open
the question of how one measures the adequacy of
a decision-maker's reasons. If the decision involved
is one which requires the exercise of discretion, the
reasons given should demonstrate two things: first,
that the decision-maker recognized that it had a
power to make a choice and second, the factors
that it considered in exercising its discretion.
Balanced against these requirements, however, is
the consideration that to require elaborate and
overly scrupulous reasons places an unjustifiable
burden on the decision-maker. A requirement to
give reasons should not be interpreted in such a
way as to cause the court to construe the reasons
with technical particularity.
In this case the petitioner complains about the
reasons given by the respondent because they did
not delve into the evidence in sufficiently exhaus
tive detail. However, I am satisfied that the Minis
ter's reasons demonstrate a grasp of the pertinent
issues and of the relevant evidence. It is not neces
sary for the reasons to list every conceivable factor
which may have influenced the decision and I am
not persuaded by the petitioner's argument that
the lack of reference to the psychiatric reports or
the letters of the petitioner's parents means that
they were ignored. The Minister's decision, in my
view, represented a fair and accurate assessment of
the situation; it demonstrated a consideration of
the relevant facts including the petitioner's age,
family circumstances, his behavioural, educational
and employment background as well as the person
al representations of the petitioner in his letter to
the respondent, including his allegations of inno
cence for the crimes with which he was convicted.
Balanced against this, however, the Minister took
into account that the petitioner had been found
guilty of the offences with which he was convicted
in a court of law in the United States, that the jury
had rendered a death sentence verdict after weigh
ing the aggravating and mitigating circumstances
and the remedial avenues open to the petitioner
under the laws of Pennsylvania, including the
capacity of State authorities to dispense clemency
in capital punishment cases. In addition, the Min
ister was cognizant of his obligation to consider the
Canadian public interests. Accordingly, I am satis
fied that the reasons given by the respondent for
his decision more than adequately meet the
requirements of the duty to act fairly.
The petitioner's third argument is that by allow
ing his decision to be influenced by the fact that
the petitioner did not testify at his trial and by
taking into account such public policy consider
ations as discouraging fugitives from seeking
refuge in Canada, the respondent took into
account irrelevant and illegal considerations which
should lead this Court to the conclusion that he
erred in law and to quash the decision.
In my opinion, these arguments are not support
able by the evidence. The decision of the Minister,
made pursuant to Article 6 of the Canada-U.S.
Treaty, is an administrative one involving an exer
cise of discretion. This discretion is always, of
course, subject to the requirements of natural jus
tice and to the control which the judiciary will
normally exercise over the executive; that is, in
exercising its powers the executive must act law
fully. Whether the executive has so acted is a
matter to be determined by looking at the relevant
legislation and its scope and object in conferring a
discretion on the Minister.
I agree with the respondent's submissions that
the object of the Extradition Act is to provide for
the return of fugitive offenders to the country in
which the offence was committed. Extradition pro
ceedings leading to the surrender of such an
individual are not for the purpose of determining
guilt or innocence. The discretion which the Minis
ter enjoys pursuant to the terms of the Canada-
United States Treaty is exercised only after it has
been determined by the courts that the individual
in question is liable to extradition. The courts have
recognized the broad nature of this type of discre
tion. In Re Federal Republic of Germany and
Rauca (1983), 41 O.R. (2d) 225 (Ont. C.A.) the
Court held at page 241:
The discretion of the executive has been a recognized and
accepted qualification in extradition treaties for over a century.
Free and democratic societies have refused to extradite for
"political crimes" as they determine them. It must be noted
that here the discretion is entirely in favour of the "fugitive".
The Minister can accept the extradition order made by the
court, or he can refuse to follow it where the treaty provides for
the discretionary surrender of nationals; the discretion is exer-
cisable by the executive only and is not a question cognizable
by the courts: Re Galwey, [1896] 1 Q.B. 230 at p. 236; R. v.
MacDonald, Ex p. Strutt (1901), 11 Q.L.J. 85 at p. 90.
[Emphasis added.]
This does not mean that the decision of the
Minister cannot be subject to judicial review.
What it does mean is that, in the absence of a
blatant error in law going to jurisdiction, a court
should not review a decision of this nature on its
merits.
The Minister's reasons do make mention of the
fact that the petitioner did not testify at his trial in
Pennsylvania in the face of compelling evidence
against him. However, there is nothing to indicate
that this fact more than any other influenced the
Minister's decision, nor is there anything to indi
cate that the Minister's decision would have been
different if the petitioner had in fact testified. It
was one consideration among many and, in a
discretionary decision of this nature, the Court
would be exceeding its function of judicial review
by quashing the Minister's decision on this ground
alone. By having regard to this fact, the Minister
cannot be said to have committed an error in law
of such magnitude as to warrant this Court's
interference and as would justify quashing the
Minister's decision.
Furthermore, the Minister did not take into
account illegal considerations when he had regard
to Canadian public interests. By recognizing that
the Canadian government wished to discourage
fugitives from seeking refuge in Canada, the Min
ister was doing nothing more than stating a policy
decision. That does not constitute an error in law.
One would in fact be somewhat surprised if such
public policy considerations were not taken into
account.
I am not prepared to enter into a discourse on
the petitioner's fourth argument that capital pun
ishment constitutes "cruel and unusual punish
ment" contrary to section 12 of the Canadian
Charter of Rights and Freedoms. Admittedly, this
is a question which may find its way before the
courts at some point in the future. But the circum
stances of this case do not present the proper
forum for a debate of the issue. Again, the Court
would be exceeding its judicial review function by
making a decision one way or another as to wheth
er the use of capital punishment in the State of
Pennsylvania constitutes "cruel and unusual pun
ishment". As previously stated, the decision of the
Minister in this case is essentially a policy one and
the determination of whether assurances should be
sought from the United States is a matter wholly
within the Minister's discretion.
I am satisfied that the petitioner has been
availed of all the fairness to which he is entitled.
He well knew the case against him and was afford
ed every reasonable opportunity to answer to it.
The Minister's decision demonstrates clearly that
he had before him all the relevant facts necessary
in order to reach a rational conclusion, including
written submissions from the petitioner's counsel,
the petitioner's hand-written letter, psychiatric
reports, letters of the petitioner's parents, evidence
presented at the extradition hearing and the report
of Pinard J. There are no grounds on which to
quash the Minister's decision and, accordingly, the
petitioner's application is dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.