Froom v. Canada (Minister of Justice) (T.D.) [2003] 3 F.C. 268
Date: 20021209
Docket: T-2024-01
Neutral citation: 2002 FCT 1278
BETWEEN:
ARTHUR FROOM
Applicant
and
THE MINISTER OF JUSTICE
Respondent
INTRODUCTION
[1] These reasons arise out of an appeal by way of motion from an order of Prothonotary Roger Lafrenière, dated the 2nd of April, 2002, whereby he struck the applicant's ("Mr. Froom"'s) application for judicial review of a decision of the Minister of Justice (the "Minister"), entitled "Authority To Proceed" made under section 15 of the Extradition Act[1]. In his application for judicial review, Mr. Froom set out eighteen (18) grounds as the basis for the application.
[2] In his appeal by way of motion, Mr. Froom seeks the following reliefs:
1. an order setting aside the order made on April 2, 2002 by Roger Lafrenière, Esq., Prothonotary, wherein he dismissed the applicant's judicial review application issued on November 13, 2001;
2. an order directing that the applicant's application for judicial review otherwise proceed in accordance with the Rules of the Federal Court;
3. an award of the costs of this motion together with an award of costs for the hearing on April 2, 2002 before the said prothonotary; an[d]
4. such further and other order as the Court deems appropriate.
BACKGROUND
[3] The Minister's motion that was before Prothonotary Lafrenière sought, in addition to the relief granted by the learned Prothonotary, judgment dismissing Mr. Froom's judicial review application, and costs. As alternative relief, the Minister sought an order striking out certain paragraphs from Mr. Froom's application for judicial review and Mr. Froom's affidavit in support, as well as leave to file the Minister's affidavit material beyond the time limits set out in the Federal Court Rules, 1998[2], and an Order that the application proceed as a specially managed proceeding pursuant to Rule 384. With regard to the alternative relief sought, Prothonotary Lafrenière wrote at paragraph [3] of his reasons:
The parties agreed at the hearing of the motion that it would be more efficient to await disposition of the Minister's request to strike out the application before dealing with the alternative relief. Submissions of counsel were therefore confined to the question as to whether the Notice of Application ought to be struck in its entirety. The balance of the relief requested by the Minister was adjourned pending a determination of this question.
The Minister's request for alternative relief remains outstanding.
[4] By reason of the Minister's Authority to Proceed, Mr. Froom was arrested on the 11th of September, 2001 following an ex parte application by the Attorney General of Canada before the Superior Court of Justice of Ontario. He was subsequently released on a recognisance requiring a cash deposit of $25,000.00 and a surety for the amount of $20,000.00. Thus, although Mr. Froom remains at liberty, he was, by reason of the Minister's Authority to Proceed, for a time deprived of his liberty and the liberty that he now enjoys is conditional.
[5] Prothonotary Lafrenière provided brief but cogent reasons for his decision that is here under appeal. He concluded in the following terms:
Parliament clearly intended that extradition proceedings be dealt with by the provincial superior courts expeditiously in order for Canada to ensure it promptly meets its international obligations. I am satisfied that the extradition procedure contemplated by the Extradition Act is not only an adequate alternative forum to deal with the issues raised by Froom in his Notice of Application, but the only one available to him.
For the reasons above, I conclude that the application for judicial review could not possibly succeed and must therefore be struck.
THE STATUTORY SCHEME OF THE EXTRADITION ACT
[6] Prothonotary Lafrenière, in his reasons for the decision under appeal, describes the process for extradition of an individual from Canada as having two (2) distinct phases, a judicial phase and a ministerial phase. Before me, counsel were in agreement that there are three phases to the process, all comprised within the two (2) phases that Prothonotary Lafrenière describes. For my own part, I am satisfied that there are four (4) distinct phases to the process of extradition from Canada.
[7] The first phase consists of the submission to the Minister of a request for extradition emanating from an extradition partner[3], that is to say:
...a State or entity with which Canada is party to an extradition agreement, with which Canada has entered into a specific agreement or whose name appears in the schedule [to the Extradition Act].
...État ou entité qui est soit partie à un accord d'extradition, soit signataire d'un accord spécifique avec le Canada ou dont le nom figure à l'annexe [de la Loi sur l'extradition].
[8] The second phase consists of an examination by the Minister of the extradition request resulting in satisfaction on his or her part that conditions specified in the Extradition Act are or are not met. On the facts of this matter, the Minister, apparently by her delegate, concluded that the relevant conditions were in fact met. In the Authority To Proceed document, the Minister provides the Authority To Proceed, and expresses her satisfaction that the relevant conditions have been met in the following terms:
The Minister of Justice authorizes the Attorney General of Canada to proceed before the Superior Court of Justice [of Ontario] to seek an order for the committal of Arthur Kissel aka Arthur Froom who is being sought for prosecution by the UNITED STATES OF AMERICA. The Canadian offences which corresponds [sic] to the alleged conduct are:
· conspiracy to commit fraud contrary to sections 380(1) and 465(1)(c) of the Criminal Code of Canada;
· fraud contrary to section 380(1) of the Criminal Code of Canada;
· conspiracy to launder the proceed of crime contrary to sections 462.31 and 465(1)(c) of the Criminal Code of Canada; and
· laundering the proceeds of crime contrary to section 462.31 of the Criminal Code of Canada.[4]
[9] As earlier noted in these reasons, and pursuant to subsection 16(1) of the Extradition Act, the Attorney General of Canada sought and obtained, a warrant for the arrest of Mr. Froom. The warrant was executed, Mr. Froom was incarcerated and subsequently released on conditions as provided for in subsection 18(1) of the Act.
[10] The third phase of the extradition process is an extradition hearing before a judge of the appropriate provincial superior court, on the facts of this matter, according to the reasons of Prothonorary Lafrenière, the Superior Court of Justice of Ontario. While that process has been instituted against Mr. Froom, perhaps by reason of the proceedings in this Court, it has not been carried through to completion which would be represented by, if Mr. Froom were found to be extraditable, an order of committal to await surrender issued pursuant to section 29 of the Extradition Act. If an order of committal to await surrender were issued against Mr. Froom, the judge making the order would report to the Minister pursuant to section 38 of that Act.
[11] Pursuant to section 49 of the Extradition Act, an appeal lies to the appropriate court of appeal from an order of committal.
[12] The fourth phase follows. Section 40 of the Extradition Act provides authority to the Minister, personally, to order surrender to the authority seeking extradition of a person committed to await surrender. Prior to any such order being made by the Minister, the person who might be the subject of the order is entitled to make submissions to the Minister "... in respect of any ground that would be relevant to the Minister in making a decision in respect of the surrender of the person"[5].
[13] Sections 44 to 46 of the Extradition Act set out circumstances in which the Minister is obliged to refuse to make a surrender order. Section 47 of the Act sets out circumstances where the Minister may refuse to make a surrender order. Section 48 of the Act requires the Minister to order the discharge of the appropriate person where the Minister decides not to make a surrender order in relation to him or her.
[14] Subsection 57(1) of the Extradition Act is particularly pertinent for the purposes of these reasons. That subsection reads as follows:
57. (1) Despite the Federal Court Act, the court of appeal of the province in which the committal of the person was ordered has exclusive original jurisdiction to hear and determine applications for judicial review under this Act, made in respect of the decision of the Minister under section 40.
57. (1) Malgré la Loi sur la Cour fédérale, la cour d'appel de la province où l'incarcération a été ordonnée a compétence exclusive pour connaître, conformément au présent article, de la demande de révision judiciaire de l'arrêté d'extradition pris au titre de l'article 40.
[15] It is to be noted that subsection 57(1) of the Extradition Act ousts the jurisdiction of this Court to judicially review a decision of the Minister under section 40 of the Act and vests that jurisdiction in the Court of Appeal of the appropriate province. No equivalent ousting of the jurisdiction of this Court, if there be such jurisdiction, is reflected in the Act in relation of a decision by the Minister to issue an Authority To Proceed under subsection 15(1) of the Act. A defect or defects in the Authority To Proceed process is not among the circumstances set out in sections 42 to 47 of the Act under which the Minister is obliged to, or has a discretion to, refuse to make a surrender order.
THE ISSUES
[16] Four (4) issues were identified on this appeal by way of motion. They are the following:
1) the jurisdiction of a prothonotary to strike Mr. Froom's application for judicial review;
2) if Prothonotary Lafrenière had jurisdiction to strike, the standard of review on this appeal;
3) the jurisdiction of this Court to judicially review an Authority To Proceed issued under the Extradition Act; and
4) if this Court has the jurisdiction to judicially review an Authority To Proceed, whether this Court should exercise that jurisdiction on the facts of this matter.
ANALYSIS
1) The Jurisdiction of a Prothonotary to Strike an Authority To Proceed
[17] The jurisdiction of a prothonotary to hear and dispose of motions under the Federal Court Rules, 1998[6] derives from Rule 50(1). The relevant portions of that rule for the purpose of this matter read as follows:
50. (1) A prothonotary may hear, and make any necessary orders relating to, any motion under these Rules other than a motion
...
f) relating to the liberty of a person;
50. (1) Le protonotaire peut entendre toute requête présentée en vertu des présentes règles - à l'exception des requêtes suivantes - et rendre les ordonnances nécessaires s'y rapportant:
...
f) une requête concernant la mise en liberté ou l'incarcération d'une personne;
[18] As earlier indicated in these reasons, by virtue of the Authority to Proceed issued against him by the Minister, the Attorney General of Canada applied to the appropriate court and obtained an arrest warrant in respect of Mr. Froom, that arrest warrant was executed, Mr. Froom was incarcerated and later released on conditions. Thus, arguably at least, the motion to strike that was here before Prothonotary Lafrenière could be said to relate to the liberty of Mr. Froom or to be "...une requête concernant la mise en liberté ou l'incarcération [of Mr. Froom]". By his application for judicial review, Mr. Froom seeks to strike the authority under which he was incarcerated and under which he now remains conditionally at large. The impact of the motion to strike, if successful, and it was successful before Prothonotary Lafrenière, would be to extinguish Mr. Froom's challenge to the authority under which his liberty was, and continues to be, in jeopardy.
[19] Counsel for the Minister urged before me that the relationship between the motion to strike and Mr. Froom's liberty interest is simply too remote to oust the jurisdiction of a prothonotary by virtue of Rule 50(1)(f) in either its English or French version.
[20] Unfortunately, this issue was apparently not raised before Prothonotary Lafrenière and therefore was not addressed by him in reaching the decision that is here under appeal. For that reason, and in light of my conclusions to follow, I will not address this issue further and will not attempt to decide it definitively, notwithstanding that I have grave doubt that the prothonotary had jurisdiction to deal with the motion to strike that was before him.
2) Standard of Review
[21] In Canada v. Aqua-Gem Investments Ltd.[7], Justice MacGuigan wrote at pages 462-3:
I also agree with the Chief Justice [who dissented in part] in part as to the standard of review to be applied by a motions judge to a discretionary decision of a prothonotary. Following in particular Lord Wright in Evans v. Bartlam [1937] A.C. 473 ..., and Lacourcière J.A. in Stoicevski v. Casement (1983), 43 O.R. (2d) 436 ..., discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or
(b) they raise questions vital to the final issue of the case.
Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo. [citations omitted, emphasis added]
In a footnote, Justice MacGuigan added the following commentary with regard to the concept "the final issue of the case". The note reads in part as follows:
It should be noted that Lord Wright's phrase "the final issue of the case" is quite different from "the final issue in the case." Lord Wright means "vital to the result of the case" rather "vital to the ultimate issue on the merits of the case." [emphasis in the original]
It was not in dispute before me that the decision of Prothonotary Lafrenière here under appeal raises a question or questions vital to the final issue of the case within the meaning attributed to that expression by Lord Wright and by Justice MacGuigan. In the circumstances then, it was equally not in dispute before me that I ought to exercise my own discretion de novo in considering the issues that were before Prothonotary Lafrenière.
[22] I am further guided by the words of Justice Strayer in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc.[8], where he wrote at pages 596-7:
... the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. This case well illustrates the waste of resources and time in adding on to what is supposed to be a summary judicial review proceeding the process of an interlocutory motion to strike. This motion to strike has involved a hearing before a trial judge and over one half day before the Court of Appeal, the latter involving the filing of several hundred pages of material, all to no avail.
At page 600, Justice Strayer continued:
This is not to say that there is no jurisdiction in this Court either inherent or through Rule 5 [now Rule 4] by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion. [emphasis added]
While there is here an issue of statutory interpretation and the intention of Parliament, in addition to an issue as to the adequacy of the allegations in Mr. Froom's notice of motion, I am satisfied that the only question before me remains whether or not Mr. Froom's notice of motion is "so clearly improper as to be bereft of any possibility of success."
3) This Court's jurisdiction to judicially review an Authority To Proceed issued by the Minister under the Extradition Act
[23] Counsel for the Minister urged that this question must be addressed by reference to the scheme of the Extradition Act and the intent of Parliament. She urged that it is apparent both from the record of the debates in Parliament when the Extradition Act was being considered and from the statutory scheme itself, as well as from relevant judicial pronouncements, that the following are essential features of the extradition process:
- first, extradition proceedings are intended to be dealt with expeditiously by the appropriate court in order to ensure prompt compliance with Canada's international obligations;[9]
- secondly, while the extradition process is intended to be expedient, it contains procedural safeguards that permit persons sought for extradition a fair hearing; and
- thirdly, jurisdiction with respect to extradition matters is, by the Extradition Act, vested in provincial superior courts, not the Federal Court of Canada.
For the last of the three propositions, counsel cited Garcia v. Canada (Minister of Justice)[10]. While that decision of Justice Teiltelbaum clearly stands for the proposition for which it is cited, I am satisfied that it is distinguishable on its facts from this matter and on the basis that it was a decision under the predecessor to the current Extradition Act.
[24] Subsection 18(1) of the Federal Court Act[11] vests in the Trial Division of this Court "exclusive original jurisdiction" to grant a broad range of reliefs against "federal board[s], commission[s] or other tribunal[s]" as that phrase is defined in subsection 2(1) of that Act. By section 18.1 of that Act, such reliefs may be obtained on an application for judicial review made by the Attorney General of Canada or by "anyone directly affected by the matter in respect of which relief is sought".
[25] In Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services[12], Justice Décary, for the Court, wrote at pages 701-2:
When it amended paragraph 18(1)(a) of the Federal Court Act in 1990 to henceforward permit judicial review of decisions made in the exercise of a royal prerogative, Parliament unquestionably made a considerable concession to the judicial power and inflicted a significant setback on the Crown as the executive power, if one may characterize making the government still further subject to the judiciary as a setback. What appears from this important amendment is that Parliament did not simply make the "federal government" in the traditional sense subject to the judiciary, but intended that henceforth very little would be beyond the scope of judicial review. That being so, I must say I have some difficulty giving to s. 18(1)(a) an interpretation which places Ministers beyond the scope of review when they exercise the most everyday administrative powers of the Crown, though these are also codified by legislation and regulation.
[26] While the statutory authority given to the Minister to issue an Authority To Proceed under the Extradition Act might hardly be said to be an "everyday administrative power", I am satisfied that it is an administrative power codified by legislation.
[27] In Fast v. Canada (Minister of Citizenship and Immigration)[13], a motion to strike an application for judicial review of a decision of this Court in a citizenship revocation matter, where a distinctive statutory process quite unlike, but nonetheless analogous, to the extradition process is provided, Justice Lemieux wrote at paragraph [40]:
I am further not satisfied the Minister and the Attorney General have made out a case the Minister, in issuing the notice, was not exercising a statutory power contemplated by section 2 of the Federal Court Act and, in this respect the Federal Court of Appeal's decision[s] in Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Service, ... and Krause v. Canada, ... are apt. [citations omitted]
[28] It is at least arguable that the same might be said on the facts of this matter.
[29] Judges exercising jurisdiction under the Extradition Act have made it clear that they do not regard themselves as being vested by that Act with jurisdiction to review, in a manner equivalent to judicial review, the exercise by the Minister of the power to issue an Authority To Proceed. In Federal Republic of Germany v. Schreiber[14], Justice Watt wrote at paragraph 65:
The Minister of Justice is the guardian of Canadian sovereignty interests. At the front end of the process, it is his or her function to ensure that the request of the extradition partner is compliant with the Act and the applicable treaty. Her decision, albeit of a political nature, may well involve considerations of foreign law that are beyond the scope of the extradition hearing judge's authority. [emphasis added]
[30] In an endorsement dated the 3rd of November, 2000 in the same matter[15], Justice Watt wrote:
In combination, the Extradition Act and governing treaty, which define the limits of jurisdiction of an extradition hearing judge, do not authorize me to inquire into the validity of
i. the provisional arrest warrant; or,
ii. the authority to proceed.
on the ground of impermissible delegation of ministerial authority or actual or apprehended ministerial bias. [underlined in Applicant's Authorities]
[31] Impermissible delegation of ministerial authority and actual or apprehended ministerial bias are two of the issues raised on Mr. Froom's application for judicial review. Thus, if the Minister's exercise of discretion in issuing an Authority To Proceed is reviewable, it must be found elsewhere than in the role of the extradition judge.
[32] As earlier noted in these reasons, the Minister has a front end and a back-end role in the extradition process. Upon receipt of an extradition request from an extradition partner, the Minister has the discretion to issue an Authority To Proceed. This is the front end role of the Minister, earlier referred to as the second phase of the extradition process. Once the judicial element of the process, that carried out by an extradition judge, is completed, the Minister has a back-end role in determining whether or not to make a surrender order earlier referred to as the fourth phase of the extradition process. Once again as earlier noted in these reasons, the Extradition Act sets out a range of circumstances where the Minister is prohibited from making a surrender order. It also sets out a range of circumstances where the Minister is given the discretion to refuse to make a surrender order. It would appear to me that none of such circumstances comprehend a situation where the individual who was the subject of the extradition process manages to convince the Minister that he or she erred in issuing the Authority To Proceed.
[33] This Court's jurisdiction to review a ministerial decision to make a surrender order is specifically ousted by subsection 57(1) of the Extradition Act and such jurisdiction is vested in the Court of Appeal of the province in which the committal of the person was ordered. By contrast, and I regard it as a stark contrast, no mention is made in the Extradition Act of judicial review of a decision by the Minister to issue an Authority To Proceed. In my view, it is clear that Parliament understood that it could oust this Court's jurisdiction under the Federal Court Act and vest that jurisdiction either in the extradition judge or the Court of Appeal of the appropriate province. It clearly and unequivocally chose not to do so in respect of a decision by the Minister to issue an Authority To Proceed.
[34] Based upon the foregoing line of analysis, I am satisfied that, while Prothonotary Lafrenière makes a compelling argument that this Court does not have the jurisdiction to judicially review the issuance of an Authority To Proceed, an equally compelling argument can be made that this Court has such jurisdiction by virtue of the Federal Court Act and, in the absence of the ousting of that jurisdiction, this Court should fully consider exercising it.
4) If this Court has jurisdiction to judicially review an Authority To Proceed, should it nonetheless refrain from exercising that jurisdiction?
[35] Counsel for the Minister, without acknowledging that this Court has jurisdiction to judicially review an Authority To Proceed, urged that, if the Court has the jurisdiction, it should not exercise it because there exists an adequate alternative remedy and further, that its exercise would be incompatible with the statutory scheme of the Extradition Act and expeditious fulfilment of Canada's international obligations in the field of extradition.
[36] I am satisfied that this is an issue more appropriately dealt with on the hearing of any application for judicial review and not on a motion to strike such an application.
CONCLUSION
[37] Based upon the foregoing analysis, and with great respect to the learned prothonotary whose decision is under appeal before me, I cannot conclude that, in the words of Justice Strayer in David Bull Laboratories (Canada) Inc.[16] , this is a " very exceptional" case where Mr. Froom's application for judicial review is "...so clearly improper as to be bereft of any possibility of success". In the result, this appeal by way of motion will be allowed, the decision under review will be set aside and the Minister's motion to strike Mr. Froom's application for judicial review will be dismissed. Other elements of the Minister's motion that were adjourned before Prothonotary Lafrenière and that were not before me should be brought forward to be dealt with without delay.
COSTS
[38] Mr. Froom is entitled to his costs of the Minister's motion to strike, both before me and before Prothonotary Lafrenière, payable by the Minister to Mr. Froom in any event of the cause.
_________________________________
J. F.C.C.
Ottawa, Ottawa
December 9, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2024-01
STYLE OF CAUSE: Arthur Froom v. The Minister of Justice
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 27, 2002
REASONS FOR ORDER : GIBSON J.
APPEARANCES:
Lorne Waldman, FOR THE APPLICANT
Jackman, Waldman & Associates
Barrister & Solicitor
Toronto, Ontario
David B. Cousins
Barrister & Solicitor
Toronto, Ontario
Dale Yurka and
Sean Grandet FOR THE DEFENDANT
Department of Justice
Ontario Regional Office
Toronto, Ontario
SOLICITORS OF RECORD:
Lorne Waldman, FOR THE APPLICANT
Jackman, Waldman & Associates
Barrister & Solicitor
281 Eglinton Ave. East
Toronto, Ontario
t. 416-482-6501
f. 416-489-9618
David B. Cousins
Barrister & Solicitor
425 University Ave.
Toronto, Ontario
t. 416-977-8871
f. 416-599-8075
Dale Yurka and FOR THE DEFENDANT
Sean Grandet
Department of Justice
Ontario Regional Office
130 King Street W.
Suite 3400, Box 36
Toronto, Ontario
t. 416-954-8110/1213
f. 416-952-2098
[1] S.C. 1999, c. 18.
[2] SOR/98-106.
[3] Definition "extradition partner" in section 2 of the Extradition Act.
[4] Applicant's Motion Record, page 000065.
[5] Section 43 of the Extradition Act.
[6] Supra, note 2.
[7] [1993] 2 F.C. 425 (C.A.).
[8] [1995] 1 F.C. 588 (C.A.).
[9] See United States of America v. Dynar (1997) 115 C.C.C. (3d) 481 at paragraph [122], page 522 (S.C.C.).
[10] (1997), 129 F.T.R. 174 (T.D.).
[11] R.S.C. 1985, c. F-7.
[12] [1995] 2 F.C. 694 (C.A.).
[13] [2001] 1 F.C. 257 (T.D.).
[14] [2000] O.J. No. 2618 (O.S.C.J.).
[15] Mr. Froom's Authorities, volume 3, Tab 52.
[16] Supra, note 8.