



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Karas 
          v. Canada (Minister of Justice and Attorney General),







2009 
          BCCA 1



Date: 20090107

Docket: CA032316

Between:

Michael 
    Joseph Charles Karas

Applicant

And

The 
    Minister of Justice and the Attorney General of Canada

Respondent




Before:


The 
          Honourable Mr. Justice Hall




The 
          Honourable Mr. Justice Low




The 
          Honourable Mr. Justice Bauman








G. 
          Orris, Q.C.
C. Bauman


Counsel for the Applicant




T. 
          Beveridge
M. Namazi


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




15 October 2008




Place 
          and Date of Judgment:


Vancouver, British Columbia




7 January 2009








Written 
          Reasons by
:




The 
          Honourable Mr. Justice Hall




Concurred 
          in by:




The 
          Honourable Mr. Justice Low

The 
          Honourable Mr. Justice Bauman





Reasons 
    for Judgment of the Honourable Mr. Justice Hall:

[1]

The applicant Michael Karas seeks judicial review of the decision of 
    the Minister of Justice that he be surrendered to Thailand to be tried for 
    the killing Ms. Suwannee Ratanaprakorn in Thailand on 23 or 24 September 1996.  
    Mr. Karas and Ms. Ratanaprakorn were married or in a marriage-like relationship.  
    There is evidence that the applicant caused the death of the victim at a hotel 
    in Pattaya, Thailand, where they were residing together at that time.  There 
    also exists evidence that he cut up her body and disposed of her body parts 
    in a swampy area located not far from the area of the hotel.  The torso of 
    the victim was never located but her head, arms and legs were recovered by 
    police officers on 24 September 1996.  The applicant flew to Canada from Thailand 
    on 25 September 1996.  On 27 September 1996, after the recovery of the body 
    parts of the victim, Thai authorities issued an arrest warrant alleging that 
    the applicant, then using the name of Morgan, had intentionally murdered Ms. 
    Ratanaprakorn.  Murder is an offence that can be punishable by death in Thailand.  
    Of course the applicant could not be arrested on the warrant because he had 
    fled to Canada.  Only if he is extradited from Canada will he be prosecuted 
    for the Thailand homicide.

[2]

Canada and Thailand are extradition partners under the
Extradition 
    Act
, S.C. 1999, c. 18 (the 
Act
), as a result of the
Treaty between the United Kingdom

and Siam Respecting 
    the Extradition of Fugitive Criminals
, 4 March 1911, U.K.T.S. 1911 
    No. 23 (the 
Treaty
).  The
Treaty
was entered 
    into force for Canada on 24 November 1911.  The
Treaty
obliges 
    the parties, pursuant to Art. 1, to deliver up fugitive criminals for any 
    of the offences listed in Art. 2.  This list includes murder and manslaughter.

[3]

On 3 October 1996, the applicant was arrested in Vancouver for a matter 
    unrelated to the homicide.  He was discovered at this time to be a parole 
    violator and he was committed to prison to complete a custodial sentence.  
    He has been in custody in Canada since that date, serving time originally 
    for Canadian offences and, more recently, as a result of these extradition 
    proceedings.  The present proceedings originated in July 1997 when Thailand, 
    by diplomatic note, requested the extradition of the applicant from Canada.  
    In October 1999, a Canadian extradition arrest warrant was issued for the 
    applicant.  It was served on the applicant on 25 October 1999 while he was 
    in custody in Canada, serving time for Canadian offences.  Various packages 
    of materials related to the requested extradition were forwarded to the Canadian 
    authorities by Thai authorities between June 1997 and December 1999.

[4]

An authority to proceed against the applicant was issued by the Minister 
    on 9 August 1999, pursuant to s. 15 of the
Act
.  The original 
    authority listed only the crime of murder, but this was amended during the 
    proceedings before the extradition judge, Mr. Justice Lysyk, to include the 
    crime of manslaughter.  On 1 June 2001, in reasons for judgment indexed as 
    2001 BCSC 799, Lysyk J. committed the applicant for surrender on the charge 
    of manslaughter, as set out in the amended authority to proceed.  He said:

[45]      
    I conclude that a properly instructed jury, having regard to the evidence 
    as a whole, could not reasonably draw an inference that the evidence establishes 
    the requisite mental state for the offence of murder.



[46]      
    The requirements of s. 29(1)(a) of the
Act
having been satisfied with 
    respect to the offence of manslaughter, an order of committal to await surrender 
    will issue.

[5]

Some background of how this matter came to this Court is set forth 
    in the earlier reasons in
Karas v. Canada (Minister of Justice and Attorney 
    General
), 2007 BCCA 637, 233 C.C.C. (3d) 237:

[4]        
    Mr. Karas has applied under s. 57 of the

Act
for judicial 
    review of the surrender order of the Minister of Justice dated 2 September 
    2005, together with the Ministers subsequent letter dated 20 April 2007, 
    which confirmed the Ministers order surrendering him to Thailand.  The surrender 
    order which is at issue on the review application permits Thailand to proceed 
    with a charge of murder.

[5]        
    The judicial review application is prompted by the fact that the Ministers 
    order of surrender was without condition as to the charge or penalty when 
    the committal order made by Mr. Justice Lysyk was for the non-capital offence 
    of manslaughter, and the fact that the Minister issued the surrender order 
    without a written assurance from Thailand that if Mr. Karas is prosecuted 
    for the offence of murder, the death penalty will not be imposed if he is 
    convicted.

[6]        
    The points put forward by Mr. Karas on the judicial review application, in 
    the order they were advanced in argument, are as follows:

Ground 1:  
    That the Minister violated the Applicants rights under s. 7 of the
Charter 
    of Rights and Freedoms
by ordering the surrender of the Applicant for 
    extradition on the alleged conduct of the Applicant pursuant to s. 58(b) 
    of the
Extradition Act
, which form of order allows the requesting state 
    to charge, try and convict the Applicant for murder when the requesting state 
    could not satisfy the extradition hearing judge that there was evidence capable 
    of supporting such a charge.

Ground 2:  
    That the Minister acted without jurisdiction in ordering the surrender of 
    the Applicant for extradition on the alleged conduct of the Applicant pursuant 
    to the
Extradition Act
, which form of order allows the requesting state 
    to charge, try and convict the Applicant with murder when the requesting state 
    could not satisfy the committal hearing Judge that there was evidence capable 
    of supporting such a charge.

Ground 3:  
    That the Minister violated the Applicants rights under s. 7 of the
Charter 
    of Rights and Freedoms
by ordering him to be surrendered to face a charge 
    of murder in Thailand without first obtaining assurances from the requesting 
    state that the death penalty will not be imposed or, if imposed will not be 
    carried out.

[7]        
    It is the respondents position that the three grounds of review put forward 
    by Mr. Karas should be restated as follows:

Issues 
    1 and 2:  Dual criminality:  Is the surrender order of the Minister supported 
    by the committal order of the extradition judge or does surrender with reference 
    to the conduct found to be criminal by the extradition judge deprive the applicant 
    of the protection of specialty?

Issue 
    3:  Is the applicants case a death penalty case, and if it is, does it fall 
    within the exception set out by the Supreme Court of Canada in
United States 
    of America v. Burns
, [2001] 1 S.C.R. 283, such that surrender of the applicant 
    without assurances is constitutionally compliant?

[6]

This Court allowed the application for judicial review on 24 December 
    2007, and the matter of the surrender of the applicant was returned for reconsideration 
    to the Minister.  The case was thereafter sought to be appealed to the Supreme 
    Court of Canada.  On 12 June 2008, the Supreme Court of Canada gave the following 
    direction:

The 
    application for leave to appeal from the judgment of the Court of Appeal for 
    British Columbia (Vancouver), Number CA032316, 2007 BCCA 637, dated December 
    24, 2007, is remitted to the Court of Appeal of British Columbia for reconsideration 
    in accordance with the standard of judicial review articulated in
Talib 
    Steven Lake v. Canada (Minister of Justice)
(31631).

[7]

It therefore now falls to this Court to act on the direction from the 
    Supreme Court of Canada.

[8]

In
Lake v. Canada (Minister of Justice)
, 2008 SCC 23, 
    [2008] 1 S.C.R. 761, 292 D.L.R. (4th) 193, the Supreme Court held that the 
    applicable standard for a court reviewing a ministerial decision concerning 
    extradition ought to be reasonableness.  Formerly, a number of decisions in 
    this Court, including the earlier decision of this Court in
Karas
, 
    had posited a correctness standard for the review of a ministerial decision 
    on extradition, including alleged
Charter
violations.  Mr. Justice 
    LeBel found this to not be the appropriate standard.  He said this:

[40]      The appellant also pointed 
    to several decisions of the British Columbia Court of Appeal in which the 
    Ministers assessment of a fugitives
Charter
rights and of whether 
    extradition would be unjust or oppressive within the meaning of s. 44(1)(
a
) 
    of the
Extradition Act
was reviewed on a correctness standard:
Stewart 
    v. Canada (Minister of Justice)
(1998), 131 C.C.C. (3d) 423;
United 
    States of America v. Gillingham
(2004), 184 C.C.C. (3d) 97;
United 
    States of America v. Maydak
(2004), 190 C.C.C. (3d) 71;
United States 
    of America v. Kunze
(2005), 194 C.C.C. (3d) 422;
Hanson v. Canada (Minister 
    of Justice)
(2005), 195 C.C.C. (3d) 46;
United States of America v. 
    Fordham
(2005), 196 C.C.C. (3d) 39;
Ganis v. Canada (Minister of Justice)
(2006), 216 C.C.C. (3d) 337.  In
Stewart
, the first case in which a 
    court held that the appropriate standard was correctness, Donald J.A. 
    expressed the concern that [i]f deference were accorded [the Ministers] 
    assessment of the constitutional validity of [his] own act then I believe 
    that judicial review would be unacceptably attenuated (para. 18).  With respect, 
    this concern is misplaced.  It rests on an incorrect understanding of 
    the Ministers role in assessing the interests at stake in the extradition 
    context.  It is also inconsistent with this Courts jurisprudence on 
    the judicial review of extradition decisions.

[9]

He also observed at para. 34 that [r]easonableness is the appropriate 
    standard of review for the Ministers decision, regardless of whether the 
    fugitive argues that extradition would infringe his or her rights under the
Charter
.  He made reference to the case of
Dunsmuir v. New Brunswick
, 
    2008 SCC 9, [2008] 1 S.C.R. 190, 291 D.L.R. (4th) 577, as explanatory of the 
    reasonableness standard.

[10]

A recent judgment of this Court,
Investment Dealers Association 
    of Canada v. Dass
, 2008 BCCA 413, made reference to the principles 
    set out in
Dunsmuir
.  Smith J.A. said:

[19]      
    Reasonableness is a deferential standard reflecting respect for legislative 
    choices to leave some matters for the decision of administrative tribunals 
    using their processes, and drawing on their particular expertise and experiences 
    (para. 49).  Thus,
Dunsmuir
explained at para. 47,

. . . certain questions that come before administrative 
    tribunals do not lend themselves to one specific, particular result.  Instead, 
    they may give rise to a number of possible, reasonable conclusions.  Tribunals 
    have a margin of appreciation within the range of acceptable and rational 
    solutions.  A court conducting a review for reasonableness inquires into the 
    qualities that make a decision reasonable, referring both to the process of 
    articulating the reasons and to outcomes.  In judicial review, reasonableness 
    is concerned mostly with the existence of justification, transparency and 
    intelligibility within the decision-making process.  But it is also concerned 
    with whether the decision falls within a range of possible, acceptable outcomes 
    which are defensible in respect of the facts and law.

[20]      
    On the other hand, correctness is a more exacting standard of review.  Of 
    this standard, the majority in
Dunsmuir
stated at para. 50,

. . . it is . . . without question that the standard 
    of correctness must be maintained in respect of jurisdictional and some other 
    questions of law.  This promotes just decisions and avoids inconsistent and 
    unauthorized application of law.  When applying the correctness standard, 
    a reviewing court will not show deference to the decision maker's reasoning 
    process; it will rather undertake its own analysis of the question.  The analysis 
    will bring the court to decide whether it agrees with the determination of 
    the decision maker; if not, the court will substitute its own view and provide 
    the correct answer.  From the outset, the court must ask whether the tribunal's 
    decision was correct.

[21]
Dunsmuir
also provides guidance for the identification of jurisdictional 
    questions.  Jurisdiction is now to be given a narrow interpretation for 
    purposes of determining whether a question under review is jurisdictional.  
    As explained at para. 59,

Jurisdiction 
    is intended in the narrow sense of whether or not the tribunal had the authority 
    to make the inquiry.  In other words, true jurisdiction questions arise where 
    the tribunal must explicitly determine whether its statutory grant of power 
    gives it the authority to decide a particular matter.  The tribunal must interpret 
    the grant of authority correctly or its action will be found to be
ultra 
    vires
or to constitute a wrongful decline of jurisdiction . . .

[11]

It is first necessary, as observed in para. 62 of
Dunsmuir
, 
    for a reviewing court to determine whether the jurisprudence has already 
    determined in a satisfactory manner the degree of deference to be accorded 
    with regard to a particular category of question.  As noted previously, the 
    standard of review of a ministerial decision concerning the surrender of a 
    fugitive to an extradition partner is now generally to be a standard of reasonableness 
    as was determined by the Supreme Court in
Lake
.  There is no 
    need to consider the second step in para. 62 of
Dunsmuir
as 
    the jurisprudence has already defined the degree of deference for this category 
    of question.

[12]

In its earlier decision concerning this applicant, this Court found, 
    at para. 73, that ministerial decisions on issues of law, including alleged 
    violations of the
Charter
, should be reviewed on the standard 
    of correctness.  The Court observed, at para. 85, that the real issue was 
    the Minister's jurisdiction under the
Act
to permit surrender on different 
    terms than those supported by the committal order.  As noted previously, 
    the order made by Lysyk J., after the committal hearing, was that the applicant 
    Karas should to be committed for surrender on the offence of manslaughter 
    as set out in the amended authority to proceed.  The Minister, after receiving 
    submissions on behalf of the applicant, determined that the applicant should 
    be surrendered on the conduct described by Judge Lysyk in his reasons in 
    support of committal, dated June 1, 2001.  In the result, he was ordered 
    surrendered to face prosecution on the murder charge extant in Thailand, where 
    he would be liable to conviction on that offence or some lesser offence.  
    The prosecution would be on the facts related to the killing of Ms. Ratanaprakorn.

[13]

The
Act
provides as follows in s. 3(1)(b) and s. 3(2):

3 (1) A person may be 
    extradited from Canada in accordance with this Act and a relevant extradition 
    agreement on the request of an extradition partner for the purpose of prosecuting 
    the person or imposing a sentence on  or enforcing a sentence imposed on 
     the person if



(
b
) the conduct 
    of the person, had it occurred in Canada, would have constituted an offence 
    that is punishable in Canada,

(i) 
    in the case of a request based on a specific agreement, by imprisonment for 
    a maximum term of five years or more, or by a more severe punishment, and

(ii) 
    in any other case, by imprisonment for a maximum term of two years or more, 
    or by a more severe punishment, subject to a relevant extradition agreement.

(2) For greater certainty, it is not relevant whether 
    the conduct referred to in subsection (1) is named, defined or characterized 
    by the extradition partner in the same way as it is in Canada.

[14]

As may be observed from the earlier reasons of this Court (see paras. 
    36-57 of
Karas
), there was a certain measure of confusion in 
    the communications between Thai officials and Canadian officials as to what 
    charge the applicant could face in Thailand for the alleged homicide.  Ultimately, 
    the Thai officials advised the Minister that they could not amend the charge 
    in Thailand from murder to manslaughter once laid, in the absence of new evidence, 
    nor could they fetter the discretion of the Thai court to impose the death 
    penalty.  The Court noted:

[49]      
    In a letter to counsel for Mr. Karas dated 2 September 2005, the Minister 
    set out the additional information which he had obtained as a result of these 
    meetings with Thai officials:

·

In the absence of new evidence, 
    Thai law does not allow a prosecutor to amend a charge once laid;

·

After a murder trial, a judge 
    may convict on the lesser included offence of manslaughter;

·

Thailand has legislation pending 
    before the Thai Parliament to allow them to provide a death penalty assurance 
    if requested to do so in the context of an extradition request;

·

A Thai sentencing judge can take 
    into account a diplomatic request from Canada that the death penalty not be 
    imposed;

·

Since 2000, although there have 
    been 318 persons charged with murder in the Pattaya region of Thailand, where 
    the applicant is charged with murder, no one, neither Thai national nor foreigner, 
    has been sentenced to the death penalty; and

·

When a foreign country has provided 
    a diplomatic request seeking clemency from the King of Thailand with respect 
    to one of their citizens who has been sentenced to death in Thailand, the 
    King has granted a pardon in every case.

[50]      
    The letter of 2 September 2005 also explained the reasons behind the Ministers 
    changes to the Amended Surrender Order.  The Minister stated that by diplomatic 
    note dated 1 September 2005, Thailand had confirmed that while it was unable 
    to provide a death penalty assurance in advance of trial, a pardon was traditionally 
    granted in cases not involving narcotics.

[15]

Based on the information received from the Thai officials, the Minister 
    concluded that it would be appropriate to order surrender of the applicant 
    for trial in Thailand because it could not reasonably be anticipated that 
    the applicant in fact would face the jeopardy of execution in Thailand if 
    convicted of the homicide.  The Minister went on to further conclude that 
    even if it could be considered the applicant would face the possibility of 
    execution upon conviction, the case could be considered as falling within 
    the exceptional circumstances alluded to in
United States v. Burns
, 
    2001 SCC 7, [2001] 1 S.C.R. 283, 195 D.L.R. (4th) 1.  The Minister gave the 
    following reasons for finding that surrender without assurances would not 
    be unjust or oppressive:

·

Canada has no jurisdiction to 
    prosecute the applicant for a murder that took place on Thai soil;

·

If the applicant is not surrendered 
    he will not be prosecuted for the murder and dismemberment of a young Thai 
    woman;

·

A decision not to surrender will 
    not only ensure that the applicant will not face justice, but may also promote 
    lawlessness on the part of Canadians overseas in death penalty jurisdictions;

·

The chance of the applicant being 
    sentenced to death is remote, and there is no real risk that the death penalty 
    will be carried out even if imposed;

·

Thailand cannot, rather than 
    will not, provide a death penalty assurance;

·

While the Thai government cannot 
    provide Canada with a death penalty assurance, the fact that Thai officials 
    are able to advise that the King has never refused a pardon, when clemency 
    was sought by a foreign government, constitutes an informal assurance; and

·

The Supreme Court of Canada in
Burns
did not expressly rule on whether or not it would be unconstitutional 
    to surrender a Canadian citizen without a death penalty assurance in situations 
    where such an assurance is not possible.

The 
    Minister's surrender order was based on the conduct that supported the applicant's 
    committal for surrender on the charge of manslaughter as set forth in the 
    amended authority to proceed.  This surrender order resulted in the judicial 
    review application before this Court and the Supreme Court of Canada.

[16]

It was noted in the case of
United States of America. v. Ferras; 
    United States of America v. Latty
, 2006 SCC 33, [2006] 2 S.C.R. 77, 
    268 D.L.R. (4th) 1, that:

[38]      
    The inquiry into sufficiency of the evidence to commit for extradition involves 
    an evaluation of whether the conduct described by the admissible evidence 
    would justify committal for trial in Canada: s. 29(1).  Evidence 
    that would justify committal in Canada requires at least some evidence on 
    every element of the parallel Canadian crimethe double criminality requirement.  
    The judges inquiry is focused on conductwhether the acts disclosed in 
    the admissible evidence are criminal in Canada (see
McVey (Re)
, [1992] 
    3 S.C.R. 475, at p. 526).

[17]

The task of an extradition judge on a committal hearing is to determine 
    whether the conduct involved would constitute a crime in Canada (the so-called 
    double criminality requirement).  Goudge J.A. noted in
Canada (Attorney 
    General) v. Gorcyca
, 2007 ONCA 76, 216 C.C.C. (3d) 403, that s. 15(3) 
    of the
Act
requires that the named Canadian offences [set out 
    in the authority to proceed] correspond to the alleged conduct of the person 
    sought, not the foreign offences (para. 39) and: the alleged conduct of 
    the person sought, had it occurred in Canada, would warrant committal for 
    an offence named in the Authority to Proceed (para. 45).

[18]

In
Canada (Minister of Justice) v. Reumayer
, 2005 BCCA 
    391 at para. 150, leave to appeal to S.C.C. refused 31072 (December 8, 2005), 
    199 C.C.C. (3d) 1, Ryan J.A., after referring to s. 3(1)(b) of the
Act
, 
    observed that, as long as the conduct supports a Canadian offence, it does 
    not matter what the offence might be or how the constituent elements are described 
    in Canada.  The person is liable to extradition.

[19]

In my opinion, it is clear from applicable authorities that it is for 
    the extradition judge to decide whether the conduct of the person sought by 
    an extradition partner would have constituted an offence under domestic law, 
    had the conduct occurred in Canada.  If committal for surrender is ordered 
    by the judge, it then devolves upon the Minister to decide whether it would 
    be appropriate to surrender the person for trial to the extradition partner.  
    Under s. 58(b) of the
Act
, an order of surrender can refer either 
    to the offence in respect of which the extradition is requested, the offence 
    for which the committal was ordered or the conduct on which the person is 
    to be surrendered.  Under s. 40(3) of the
Act
, the Minister 
    may seek assurances considered appropriate from the extradition partner, including 
    a condition that the person not be prosecuted for any other matter than that 
    for which the person is surrendered.

[20]

The reason why one of the three methodologies set forth in s. 58(b) 
    should be used arises from the rule of specialty, a key rule in extradition 
    matters.  As La Forest J. noted in
R. v. Parisien
, [1988] 1 
    S.C.R. 950 at 957, 41 C.C.C. (3d) 223, a fugitive surrendered to a requesting 
    state in respect of a particular crime is not to be tried for any other crime 
    previously committed without permission of the surrendering state.  To do 
    so would violate the contractual nature of the arrangement between states 
    that underpins the extradition process.

[21]

Article 6 of the
Treaty
provides:

A person surrendered 
    can in no case be detained or tried in the State to which the surrender has 
    been made, for any other crime or on account of any other matters than those 
    for which the extradition shall have taken place, until he has been restored 
    or had an opportunity of returning to the State by which he has been surrendered.

[22]

Section 18(1)(b) of the former
Extradition Act
, R.S.C. 
    1985, c. E-23, was as follows:

18(1)  The 
    judge shall issue a warrant for the committal of the fugitive to the nearest 
    convenient prison, there to remain until surrendered to the foreign state, 
    or discharged according to law,



(b)  in the 
    case of a fugitive accused of an extradition crime, if such evidence is produced 
    as would, according to the law of Canada, subject to this Part, justify the 
    committal of the fugitive for trial, if the crime had been committed in Canada.

[23]

Section 25 of that statute was as follows:

Subject 
    to this Part, the Minister of Justice, on the requisition of the foreign state, 
    may, under his hand and seal, order a fugitive who has been committed for 
    surrender to be surrendered to the person or persons who are, in the Minister's 
    opinion, duly authorized to receive the fugitive in the name and on behalf 
    of the foreign state, and the fugitive shall be so surrendered accordingly.

[24]

The present
Act
has somewhat different provisions.  Under 
    s. 29 of the current legislation, an extradition judge makes a decision as 
    to 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 authority 
    to proceed.  If an order of committal for surrender is made, the Minister 
    must then decide whether surrender to the extradition partner with or without 
    assurances is appropriate.  The salient provisions are s. 58(b) and (f) which 
    provide that an order for surrender must:

58(b)  describe 
    the offence in respect of which the extradition is requested, the offence 
    for which the committal was ordered or the conduct for which the person is 
    to be surrendered; [and]



(f) 
     set out any assurances or conditions to which the surrender is subject;

[25]

The present
Act
makes explicit the ability of the Minister 
    to surrender an individual on the basis of conduct, which is what was done 
    in the instant case.  This appears to accord with the approach in recent years 
    of courts in the United Kingdom.  See
In re Nielsen
, [1984] 
    A.C. 606, [1984] 2 All E.R. 81(H.L.);
United States Government and others 
    v. McCaffery
, [1984] 2 All E.R. 570, [1984] 1 W.L.R. 867 (H.L.).  
    The House of Lords in the recent decision of
Norris v. Government of 
    the United States of America and others
, [2008] UKHL 16, [2008] 2 
    All E.R. 1103, [2008] 2 W.L.R. 673, has come down in favour of the conduct 
    test as being the appropriate test under the United Kingdom's statutory regime, 
    placing reliance upon the Canadian cases of
McVey (Re)
;
McVey 
    v. United States of America
, [1992] 3 S.C.R. 475, 97 D.L.R. (4th) 
    193, and
In re Collins
(1905), 11 B.C.R. 436, 10 C.C.C. 80 (S.C.).  
    The English legislation contains language similar to our
Act
.

[26]

The reference to conduct in s. 58(b) of the
Act
seems 
    entirely consistent with the terminology adopted by Parliament in other sections, 
    namely in s. 3(1)(b) and s. 3(2), which also speak of conduct.  As observed 
    by the House of Lords in
Norris
at para. 89, the conduct-based 
    approach should simplify and expedite extradition proceedings since it avoids 
    the need always to investigate the legal ingredients of the foreign offence.  
    What has occurred in the instant case may illustrate a lack of simplicity 
    and expedition given that the proceedings in Canada have lasted some 11 years 
    in duration.  A process that takes so long does not appear to me to be satisfactory.  
    Canada and other extradition partners should be able to do better.  The comments 
    of La Forest J. in
Canada v. Schmidt
, [1987] 1 S.C.R. 500 at 
    524, 39 D.L.R. (4th) 18, appear to me to be apposite:

I 
    would add that the lessons of history should not be overlooked.  Sir Edward 
    Clarke instructs us that in the early 19th century the English judges, by 
    strict and narrow interpretation, almost completely nullified the operation 
    of the few extradition treaties then in existence: see
A Treatise Upon 
    the Law of Extradition
(4th ed. 1903), c. V.  Following the enactment 
    of the British
Extradition Act, 1870
(U.K.), 33 & 34 Vict., c. 
    52, upon which ours is modelled, this approach was reversed.  The present 
    system of extradition works because courts give the treaties a fair and liberal 
    interpretation with a view to fulfilling Canada's obligations, reducing the 
    technicalities of criminal law to a minimum and trusting the courts in the 
    foreign country to give the fugitive a fair trial, including such matters 
    as giving proper weight to the evidence and adequate consideration of available 
    defences and the dictates of due process generally.

[27]

Having reached a decision to surrender a person committed by an extradition 
    judge, the Minister must then sufficiently define what the person is being 
    surrendered for to the extradition partner in order that the rule of specialty 
    will be observed by the requesting state.  In the present case, that requirement 
    is met by surrender on the basis of conduct, namely the killing of Ms. Ratanaprakorn 
    in September 1996, for which the applicant was ordered to be committed for 
    extradition.  There can be no doubt that the applicant may only be tried in 
    Thailand for the killing of Ms. Ratanaprakorn.  The fact that the offence 
    may be differently described by the requesting state or may attract a different 
    penalty appears to me to be not a relevant consideration.  Neither the committing 
    court nor the Minister ought to be required to inquire into details of the 
    foreign law, save only in one respect which I will deal with presently  namely, 
    if prosecution for the foreign crime could involve the imposition of the death 
    penalty.  Of course, if the conduct for which a fugitive is sought would not 
    amount to an extradition crime in Canada, then neither committal nor surrender 
    would be appropriate.  For an example, see
Washington (State of) v. 
    Johnson
, [1988] 1 S.C.R. 327, 40 C.C.C. (3d) 546, as explained in
McVey
.

[28]

Applying here the standard enunciated by the Supreme Court of Canada 
    in
Lake
to the decision of the Minister to surrender this applicant 
    to Thailand, on the basis of the conduct underlying the foreign crime and 
    the committal order made by Lysyk J., namely reasonableness as explained in
Dunsmuir
, I consider the decision of the Minister to be supportable.  
    The killing of Ms. Ratanaprakorn was a serious crime and the reasons given 
    by the Minister in his decision to surrender the applicant appear to me to 
    be intelligible, justifiable and within the jurisdiction of the Minister to 
    decide.

[29]

The applicant made reference to the case of
Canada (Attorney 
    General) v. Fischbacher
, 2008 ONCA 571, a case decided after
Lake
.  
    There appears to be a distinction between the case of
Fischbacher
and the instant case, in that it appears that in
Fischbacher
the surrender decision referred to the foreign charge of first degree murder, 
    whereas the surrender decision in the present case was on the basis of conduct.  
    I would not necessarily want to be taken as agreeing with the case of
Fischbacher
but I need not reach any concluded decision about this because in my view 
    that case is distinguishable from the present case as the basis for surrender 
    here was different.

[30]

The applicant submits the Minister violated his rights under s. 7 of 
    the
Charter of Rights and Freedoms
, by ordering his surrender 
    for trial in Thailand without receiving assurances that the death penalty 
    would not be imposed upon conviction or, if imposed, would not be carried 
    out.  In the earlier decision of this Court, 2007 BCCA 637, it was held that 
    the Minister erred in law by ordering surrender without assurances.  While 
    it was not explicitly stated which standard was being applied, correctness 
    or reasonableness, it appears to me that the previous decision concerning 
    assurances was based on a correctness analysis.  The Court said this in the 
    course of its reasons:

[139]    On 
    appeal, the Supreme Court of Canada held that examination of the death penalty 
    issue was most appropriate under s. 7 of the
Charter
.  The extradition 
    order, if implemented, would have deprived Burns and Rafay of their rights 
    of liberty and security of the person because [t]heir lives [were] potentially 
    at risk. (at para. 59)  The issue before the court was whether this threatened 
    deprivation was in accordance with the principles of fundamental justice.



[148]    
    In my opinion, the standard of review to be applied is correctness.  In this 
    case, the Ministers decision to surrender Mr. Karas to Thailand without assurances 
    that the death penalty will not be imposed or, if imposed, will not be carried 
    out, is one that engages Mr. Karas' rights under s. 7 of the
Charter
.  
    In this case, the Minister has made a decision to surrender without assurances.  
    Executive decisions that engage the rights and freedoms guaranteed by the
Charter
are reviewed on a standard of correctness (
United States 
    of America v. Kwok
, 2001 SCC18, [2001] 1 S.C.R. 532;
United States 
    of America v. Gillingham
, 2004 BCCA 226, 239 D.L.R. (4th) 320;
Ganis 
    v. Canada (Minister of Justice),
2006 BCCA 543, 216 C.C.C. (3d) 337, leave 
    to appeal to S.C.C. refused, [2007] S.C.C.A. No. 111).

[31]

This approach to alleged
Charter
violations by the Minister 
    in the extradition context is no longer the applicable standard, as was made 
    clear by LeBel J. in
Lake
at para. 40.  LeBel J. went on to 
    observe:

[40]      Reasonableness 
    does not require blind submission to the Ministers assessment; however, the 
    standard does entail more than one possible conclusion.  The reviewing courts 
    role is not to re-assess the relevant factors and substitute its own view. 
     Rather, the court must determine whether the Ministers decision falls within 
    a range of reasonable outcomes.  To apply this standard in the extradition 
    context, a court must ask whether the Minister considered the relevant facts 
    and reached a defensible conclusion based on those facts.  I agree with Laskin 
    J.A. that the Minister must, in reaching his decision, apply the correct legal 
    test.  The Ministers conclusion will not be rational or defensible if he 
    has failed to carry out the proper analysis.  If, however, the Minister has 
    identified the proper test, the conclusion he has reached in applying that 
    test should be upheld by a reviewing court unless it is unreasonable.
This 
    approach does not minimize the protection afforded by the
Charter
. 
     It merely reflects the fact that in the extradition context, the proper assessments 
    under ss. 6(1) and 7 involve primarily fact-based balancing tests.  Given 
    the Ministers expertise and his obligation to ensure that Canada complies 
    with its international commitments, he is in the best position to determine 
    whether the factors weigh in favour of or against extradition.

[Emphasis added.]

[32]

As I observed earlier, it appears to me that the Minister was empowered 
    by the
Act
with the jurisdiction to decide whether assurances 
    were required.  The Minister decided that it would not be unjust or oppressive 
    (s. 44 of the
Act
) to order surrender without assurances in 
    the circumstances of this case because he concluded that the applicant faced 
    no realistic jeopardy of execution should he be found guilty of murder.  In 
    my view, this was a reasonable, fact-based conclusion in the circumstances 
    of this case.  Since, in my judgment, the order made by the Minister was not 
    unreasonable, I would not accede to the argument that the Minister erred in 
    making the impugned order for surrender of the applicant to Thailand.

[33]

In view of this conclusion, I do not find it necessary to consider 
    whether the Minister was entitled to take the view that this was a case of 
    exceptional circumstances of the sort referred to in
Burns
.  
    That issue can be dealt with in some future case where it may be necessary 
    to do so, but it is not necessary to explore this in the present case.  I 
    would dismiss the application for review of the decision of the Minister.

The Honourable Mr. Justice Hall

I 
    agree:

The 
    Honourable Mr. Justice Low

I 
    agree:

The 
    Honourable Mr. Justice Bauman


