M.M. v. United States of America, 2015 SCC 62 (Extradition — Committal hearings — Evidence — Possible Defences)

On appeal from two judgments of the Quebec Court of Appeal (2014 QCCA 681), dismissing an application for judicial review of a surrender order made by the Minister of Justice; and 2012 QCCA 1142, setting aside a decision of Cohen J., (2011 QCCS 4800).

M is the mother of three children. The family was living in Georgia when the parents divorced. The Georgia courts awarded the father sole custody of the children. M was given no visitation rights and was permitted no further contact with the children. However, when the father reported the children missing in 2010, Georgia police located M with her children in a battered women’s shelter in Quebec and arrested her. After being placed in foster care, the children were returned to M’s care following her release on bail. The U.S. sought M’s extradition to face prosecution in Georgia for the offence of interstate interference with custody. The Minister of Justice issued an Authority to Proceed (“ATP”) with extradition, listing the corresponding Canadian offences of abduction in the Criminal Code. The Quebec Superior Court dismissed the U.S.’s application for M’s committal for extradition. The Court of Appeal for Quebec, however, set aside M’s discharge and ordered her committal for extradition (the “committal order”). The Minister of Justice ordered M’s surrender for extradition, and the Court of Appeal dismissed her application for judicial review of the Minister’s decision (the “surrender order”). M appeals both the committal and the surrender orders.

Held (4:3) (Abella, Karakatsanis and Côté JJ. dissenting): The appeal should be dismissed in relation to both the committal order and the surrender order.

Per McLachlin C.J. and Cromwell, Moldaver, and Wagner JJ.:

With respect to the committal order, the extradition judge applied incorrect principles in relation to the double criminality requirement and her role in assessing the reliability of the evidence before her. The extradition judge erred in law in weighing and relying on evidence of defences and other exculpatory circumstances, in finding that the requesting state’s evidence did not justify committal, and in relation to her analysis of the Canadian offences. With respect to the surrender order, potential defences and the best interests of children are relevant to the Minister of Justice’s decision making. In this case, the Minister appropriately considered the children’s best interests and raised on his own motion the question of Georgia law in relation to M’s possible defence of qualified necessity. As such, the Minister’s decision to send M to Georgia for trial was reasonable.

The extradition process serves two important objectives: the prompt compliance with Canada’s international obligations to its extradition partners, and the protection of the rights of the person sought. This requires a careful balancing of the broader purposes of extradition with those individual rights and interests. Extradition is a three-phase process (ATP, committal, and surrender) and, at each stage, concern to balance these interests is apparent. Also underlying all three phases is the broad principle of double criminality expressed in s. 3(1)(b) of the Extradition Act, that is, the principle that Canada should not extradite a person to face punishment in another country for conduct that would not be criminal in Canada.

The committal phase of the extradition process serves an important, but circumscribed and limited screening function. The extradition judge is to determine whether there is evidence of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the ATP; if not, the person must be discharged: s. 29(1)(a) and (3) of the Extradition Act. This incorporates the test that a justice conducting a preliminary inquiry must apply under Canadian law when deciding whether to commit an accused for trial. The extradition judge’s role is to determine whether there is a prima faciecase of a Canadian crime, not to become embroiled in questions about possible defences or the likelihood of conviction. Committal hearings are not trials; they are intended to be expeditious procedures to determine whether a trial should be held.

The extradition judge’s role, like that of the preliminary inquiry justice, is not concerned with defences or other matters on which the accused bears an evidential or persuasive burden. While the role of the extradition judge at the committal phase has evolved as a result of legislative amendments and the requirements of the Charter, the basic principles governing extradition have remained the same. There is nothing in the jurisprudence suggesting any change in the extradition judge’s statutorily defined role. Moreover, the jurisprudence did not and could not change by judicial decree the statutory requirement that the requesting state has only to show that the record would justify committal for trial in Canada.

Overall, the correct approach is a restrained view of the role of the extradition judge in assessing the reliability of evidence. The extradition judge’s starting point is that the requesting state’s certified evidence is presumptively reliable. This presumption may only be rebutted by showing fundamental inadequacies or frailties in the material relied on by the requesting state. It is only where the evidence supporting committal is so defective or appears so unreliable that it would be dangerous or unsafe to act on it that the extradition judge is justified in refusing committal on this basis. In order to admit evidence from the person sought for this purpose, the judge must be persuaded that the proposed evidence, considered in light of the entire record, could support such a conclusion.

In this case, the extradition judge erred in concluding that the requesting state’s evidence in the certified record of the case (“ROC”) was insufficient to require committal. She gave no weight to the presumption of reliability of the ROC. The ROC supported committal here. The circumstantial evidence and the reasonable inferences that could be drawn from it were sufficient to conclude that a reasonable jury properly instructed could return a verdict of guilt. The ROC permitted reasonable inferences that M had taken the children from the parent who had lawful care of them, and was sufficient to support a reasonable inference that M had abducted the children in violation of a custody order with the intent to deprive the father of their possession.

The extradition judge also erred in law in relation to the requirements for a prima facie case and in relation to her analysis of the Canadian offences. With respect to s. 280(1) of the Criminal Code(abduction of a person under 16), her conclusions that the children left of their own volition, that they were not taken out of the father’s possession by M, that “all of the evidence” indicates that the three children ran away from their father’s residence and that their elder sister drove them to Canada are wrong in law and in fact. With respect to the law, depriving parents of the “possession” of their children is not limited to circumstances in which the parents were in physical control of the children. The essence of the offence is interference with the parent’s exercise of his or right of control over the child. The prosecution would not have to establish that M physically took the children. As well, the extradition judge failed to recognize that there was conflicting evidence concerning how the children came to be with M in Canada. The record before the extradition judge could not reasonably be thought to meet the threshold of showing either that the evidence in the ROC was so unreliable that it should be discarded or that the inferences relied upon by the requesting state were unreasonable.

With respect to the qualified defence of necessity under s. 285 of the Criminal Code, again the extradition judge erred both in law and in fact. With respect to the law, it was not part of the extradition judge’s role to consider whether there might be valid defences to the Canadian offences. As for the facts, the extradition judge did not consider that s. 285 requires that there be danger of imminent harm either to the children or to M herself. There was evidence of neither.

At the surrender stage of the proceedings, the Minister of Justice must not surrender a person for extradition if this would be “unjust or oppressive”, pursuant to s. 44(1)(a) of the Extradition Act. The basic concern which underlies the broader principle of double criminality, which operates at the ATP and committal phases of the extradition process, may also inform the Minister’s surrender decision. The Minister engages in a weighing exercise of all the relevant circumstances. This is a vitally important role because it provides an additional safeguard of the rights of the person sought and addresses matters that may not be properly considered at the two earlier stages of the extradition process. The Minister has a role to play at the surrender stage in assessing the potential consequences for the person sought of being subjected to the law of the requesting state. Where surrender would be contrary to the principles of fundamental justice, it will also be unjust and oppressive.

In exercising this power to surrender, the Minister must consider, when relevant, the best interests of children who are or may be affected by the extradition and whether there is a significant difference in jeopardy between domestic and foreign law. With respect to this latter consideration, the rationale of the broad principle of double criminality may inform the Minister’s exercise of this authority to refuse surrender if there are defences available in Canada that are not available in the requesting state.

Thus, the availability of possible defences that fall outside of the scope of the double criminality inquiry required at the first two phases of the extradition process can nonetheless be relevant at the third. It follows from this that the Minister should consider, when relevant, how the person sought would be affected by the unavailability of a comparable defence in the requesting state.

However, it does not follow that every difference in the availability of defences or in jeopardy makes extradition unjust or oppressive or contrary to the principles of fundamental justice. There is generally speaking nothing unjust in surrendering a person to face the legal consequences of their acts in the place where they were committed. Differences in legal systems — even substantial differences — should not, generally speaking, constitute grounds for refusing surrender. Before the unavailability of a defence could engage the threshold for refusal, the person sought must show: (1) that there is, in fact, a difference of substance in the respective laws of the requested and requesting state so that the defence is available in Canada but no comparable defence is available in the requesting state; (2) that there is a reasonable prospect of success were the defence to be raised if he or she were tried for the same conduct in Canada; and (3) that the difference between the laws of the two countries must lead to a significantly greater jeopardy for the person sought in the requesting state. If these three elements are present, then the Minister is required to weigh the potential difference in defences along with all the other relevant considerations in making his or her surrender decision. The onus of persuasion remains on the person sought. The Minister’s ultimate conclusion will be treated with deference on judicial review.

In this case, the Minister’s decision was not unreasonable because M did not meet any of the three threshold requirements. First, M did not show that there is any difference in substance between the law in Canada and in Georgia. Given the fact that the U.S. authorities advised the Minister that M could rely on a defence of coercion at her trial in Georgia, there is no reason to assume that there is a significant substantive difference between coercion and necessity. The record contains nothing to support the assertion that there is no defence in Georgia comparable to the statutory necessity defence. Second, the material in the record does not show a reasonable prospect of success on the Canadian qualified defence of necessity if M were tried for the alleged conduct in Canada. This defence is available only if there was “imminent harm”. The material before the Minister did not provide any basis to think that the imminent harm requirement was present here. Furthermore, M’s position on the facts changed dramatically in her submissions to the Minister, such that these contentions could not reasonably be thought to be entitled to much weight. Third, M failed to show that she faced significantly greater jeopardy in Georgia than in Canada.

On the issue of the best interests of the children, the Minister, in making a surrender decision, can consider personal circumstances, including the hardship extradition will create for families and it is necessary to do so where the material puts these considerations in play. This obligation extends to considering the best interests of children who will or may be affected by extradition when the material on record shows that this is a relevant concern. However, the best interests of children on surrender for extradition must be considered in light of other important legal principles and the facts of the individual case. The legal principle of the best interests of the child may be subordinated to other concerns in appropriate contexts; its application is inevitably highly contextual; and society does not always deem it essential that the best interests of the child trump all other concerns. For example, the consequences of a parent having to face criminal charges elsewhere cannot in themselves be unjust or oppressive.

In this case, the Minister was required to consider the best interests of the children in making his surrender decision. The Minister’s key conclusions were that the best interests of the children were unclear, that the impact of extradition on the children was also unclear and that there were important considerations favouring surrender for extradition. These key conclusions were reasonable and they led to a reasonable decision to surrender M. On any reasonable view of the record, what would be best for these children was anything but clear given their unhappy, unstable and complicated family history and the apparent problems of both parents. With respect to the impact of M’s extradition on the children, there was nothing before the Minister and nothing in the record before this Court providing any further information about the children’s welfare or M’s parenting abilities after the children were returned to her care, nothing that suggested to the Minister that the children would be returned to their father’s care if their mother were surrendered, nothing in the material about whether M would be incarcerated pending her trial in Georgia or what impact her pending criminal charges could have on her relationship with the children, and no evidence about other possible family placements either in Canada or in the United States.

Per Abella, Karakatsanis and Côté JJ. (dissenting):

No one can be extradited unless his or her conduct would have constituted an offence that is punishable in Canada. This is known as the principle of double criminality, a cornerstone of the extradition process in Canada. Its purpose is to ensure that no one is surrendered from Canada to face prosecution in another country for conduct that does not amount to a criminal offence in this country. Double criminality is based on ensuring that a person’s liberty is not restricted as a consequence of offences not recognized as criminal by the requested state. In other words, where a person is extradited for conduct not amounting to a criminal offence in Canada, the principle of double criminality is offended. Given the context of extradition proceedings and the liberty interests involved, the threshold for committal for extradition is higher than the threshold that applies to preliminary inquiries in criminal proceedings. To justify committal in extradition proceedings, the evidence must be such that a reasonable, properly instructed jury could return a guilty verdict.

Section 285 of the Criminal Code states that no one will be found guilty of an offence under ss. 280 to 283 of the Criminal Code if the taking or harbouring of any young person was necessary to protect him or her from danger of imminent harm. The result of s. 285 is that an accused who would otherwise be guilty of an offence under ss. 280 to 283, but whose conduct falls under the conditions specified in s. 285, is not criminally liable for his or her actions. In the words of s. 3(1)(b) of the Extradition Act, the conduct would not have constituted a punishable offence. Consideration of the s. 285 defence where a person is sought for extradition under ss. 280 to 283 is a necessary component of determining whether a punishable offence has occurred in Canada.

Removing consideration of s. 285 from the scope of the extradition judge’s review would fail to give proper effect to the principle of double criminality. If the double criminality requirement is to achieve its purpose of ensuring that a person is not surrendered to face prosecution for conduct that would not amount to a criminal offence in Canada, s. 285 must be taken into account when deciding whether a person’s conduct would constitute a crime if committed in this country and so justify committal. To preclude its consideration is to unduly narrow the role of the extradition judge in ensuring that double criminality is met, and in providing a meaningful process safeguarding the liberty interests of the person sought for extradition.

The defence that it was necessary to rescue the children to protect them from imminent harm is not available in the state of Georgia. The children were 9, 10 and 14 years old. The extradition judge found that the children were afraid of their father and that he had physically and mentally mistreated them. She also found that the children had run away from their father without any assistance or even the knowledge of their mother, that it was more than a week before they contacted her for help and that the mother’s actions in taking the children after they ran away were to protect them from further harm.

Based on a meaningful judicial assessment of the whole of the evidence, the extradition judge correctly determined that the evidence did not reveal conduct that would justify committal. Given the clear wording of s. 285, the mother could not be found guilty on the charge of abduction since her intent was to protect the children from danger of imminent harm at the hands of their father. No reasonable jury in Canada, properly instructed, could therefore return a verdict of guilty on the charge of abduction of the children against the mother in the circumstances. Committal, as the extradition judge concluded, is therefore not justified.

Section 44(1)(a) of the Extradition Act requires the Minister of Justice to consider all the relevant circumstances in deciding whether surrender would be unjust or oppressive. Even if one were to accept that the requirements for double criminality have been met, this does not relieve the Minister of his responsibility to consider that a statutory defence that goes to the very heart of the offence is available in Canada and not in Georgia. Such a consideration falls squarely within the Minister’s statutory safety valve function at the surrender stage and is therefore a necessary consideration when discretion is exercised under s. 44(1)(a).

So too are the best interests of the children. In her submissions to the Minister, the mother noted that the children fled from their abusive father and would face serious risks of harm if they were returned to him. The father left the children to take care of themselves most of the time and was physically and mentally abusive. This abuse was the reason the children ran away from the home, leading them to live in an abandoned house for over a week before contacting the mother. If the children were forced back to the United States or separated from her, they would either suffer additional abuse or face the absence of any parental figure.

It is contrary to the best interests of the children to extradite the mother. There is no dispute that the children should not be returned to their abusive father. To surrender the mother for her conduct in protecting the children is to penalize them for reaching out to her by depriving them of the only parent who can look after them. Moreover, because the defence of rescuing children to protect them from imminent harm does not exist in Georgia, the mother will not be able to raise the defence she would have been able to raise had she been prosecuted in Canada.

If extradited, the mother could face up to 15-years imprisonment if convicted of the interference with custody charges. Yet the Minister makes no reference to the impact of the mother’s surrender on the family. Instead, he observed that the availability of foster care adequately compensates for the mother’s potential imprisonment in Georgia. This represents an inexplicable rejection of the cornerstone of this country’s child welfare philosophy, namely, to attempt whenever reasonably possible to keep children and parents together. The Minister expressed uncertainty as to the children’s best interests. This ought to have led him to err on the side of the children’s right to be with a loving parent, not on the side of surrendering the mother to face a criminal process where a key defence would be unavailable.

In light of all the instability and trauma the children have experienced, it is obvious that what would be least harmful for them would be to remain in Canada with the mother who put herself in legal jeopardy to protect them, instead of being relegated to foster care. What the Minister considered instead was the mother’s conduct three years prior to the incident in question, which led to her losing custody and access. This history should not be denied, but neither is it of any particular relevance in considering what she did in responding to the children’s desperate request, or to what her current relationship was to the children. The question is not whether she was an ideal parent, but whether her conduct in coming to her children’s rescue should deprive them of her care and deprive her of her liberty for up to 15 years.

The very charges the mother faces arose because she acted in what she saw as her children’s best interests. The evidence before the Minister unequivocally showed that the children fled from their father’s home because he was abusive and that they eventually contacted their mother for assistance. She did not remove them from his home. In fact, the evidence accepted throughout these proceedings is that the children ran away on their own without either the assistance or knowledge of the mother. Between returning to the abusive household, remaining in an abandoned home or reuniting with their mother, the children felt they had no alternative. Rightly or wrongly, the children believed that taking such measures would be less harmful to their well-being than remaining in their father’s abusive household. They cannot be judged for taking desperate measures to escape intolerable conditions which placed them in harm’s way. The Minister was obliged to take into serious consideration why the children contacted their mother for assistance. They had suffered harm. They had no place to go. Reaching out to their mother was the only realistic alternative for them. And responding to their pleas for safety was the only realistic alternative for the mother. In penalizing the mother for coming to the assistance of her children instead of ignoring their entreaties, the Minister was penalizing her for accepting her responsibility to protect the children from harm.

The Minister inadequately considered the children’s best interests, and his conclusions with respect to the availability of the s. 285 defence rendered his decision to order the mother’s surrender unreasonable. Limiting his assessment of the mother’s trial in Georgia to whether it would be procedurally fair instead of whether it would be unjust or oppressive to extradite her, sidesteps the proper analysis. Given the liberty interests at stake and the potential for criminal liability in circumstances that may not attract punishment in Canada, it is not enough to determine whether the trial in the requesting state will be procedurally fair. The presence of a statutory defence in Canada going directly to criminality where no analogous defence is recognized in the requesting state is, on its face, the very sort of factor that makes surrender unjust or oppressive.

There is little demonstrable harm to the integrity of Canada’s extradition process in finding it to be unjust or oppressive to extradite the mother of young children she rescued, at their request, from their abusive father. The harm, on the other hand, of depriving the children of their mother in these circumstances is profound and demonstrably unfair.

Reasons for decision by Cromwell J.

Dissenting reasons by Abella J.

Neutral Citation: 2015 SCC 62  Docket No. 35838