



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



United States of America v. Johnstone,









2013 BCCA 2




Date: 20130110

Docket:
CA036370

In
the Matter of the

Extradition Act
, S.C. 1999, c. 18, as amended

Between:

The Attorney
General of Canada on behalf of
the United States of America

Respondent

And

Jay Cameron
Johnstone

Applicant






Before:



The Honourable Madam Justice Saunders





The Honourable Madam Justice Neilson





The Honourable Madam Justice Bennett




On judicial review
from: the Minister of Justice, October 6, 2011 and March 23, 2012
(Vancouver Docket Number 24602)






Counsel for the Appellant:



P. Edelmann





Counsel for the Respondent:



D. Strachan
D. Majzub





Place and Date of Hearing:



Vancouver, British
  Columbia

September 18, 2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January 10, 2013









Written Reasons by:





The Honourable Madam Justice Neilson





Concurred in by:





The Honourable Madam Justice Saunders

The Honourable Madam Justice Bennett








Reasons for Judgment of the Honourable
Madam Justice Neilson:

[1]

On October 6, 2011, the Attorney General of Canada, to whom I will
refer as the Minister, ordered that the applicant, Jay Cameron Johnstone, be
surrendered to the United States pursuant to s. 40 of the
Extradition Act
,
S.C. 1999, c. 18 (the 
Act
), to face a charge of child-luring in Maricopa
County, Arizona. On March 23, 2012, the Minister declined Mr. Johnstones
application for reconsideration of that order. Mr. Johnstone now applies for judicial
review of each of those decisions, pursuant to s. 57 of the
Act
. He
argues his surrender is unjust and oppressive, and violates his rights under s.
7 of the
Charter
,

because the United States earlier deported him
to Canada with full knowledge he was facing this charge, and the prolonged
proceedings to return him for trial have led to untenable delay and prejudice
to his defence. As well, he maintains the Minister failed to sufficiently
consider the cruel and inhumane conditions he will face in the custodial
facilities of Maricopa County, Arizona. Finally, he says the Minister, in
declining to reconsider his decision, has unreasonably rejected new and
critical evidence of misrepresentations made by the United States in the
extradition proceedings.

Background

[2]

In February 2006, Mr. Johnstone was arrested in Maricopa County for
child-luring. It is alleged he contacted an undercover officer over the Internet
who was posing as a 13-year-old girl, and discussed engaging in various sexual
acts with her. He purportedly arranged to meet with her for that purpose on
February 6, 2006, and was arrested upon his arrival at the meeting place. He
admitted to police he had been in contact with the fictitious teenager, but said
he had abandoned his intention to have sex with her on his way to their
meeting.

[3]

Mr. Johnstone was released on bail and assigned a Public Defender.
A trial date was scheduled for July 27, 2006. On May 1, 2006,
however, he was detained by the United States Immigration and Naturalization
Service (the I.N.S.) because his visa had expired. Following a deportation
hearing, Mr. Johnstone was deported to Canada on June 12, 2006.

[4]

On October 12, 2007, the United States requested
Mr. Johnstones extradition on the child-luring charge. An authority to
proceed was issued on March 19, 2008, and he was arrested on a warrant
issued under the
Act
on May 27, 2008. On August 12, 2008, a
Supreme Court judge ordered his committal.

[5]

On September 10, 2008, Mr. Johnstone made written submissions
to the Minister objecting to surrender on two grounds. First, he argued his
potential sentence in the United States would be substantially more severe than
that for the same crime in Canada, and maintained this disparity represented a
violation of his rights under s. 7 of the
Charter
. Second, he alleged
the State of Arizona had been aware of his pending deportation, and the ensuing
delay in seeking his extradition violated his right to be tried within a
reasonable time pursuant to s. 11(b) of the
Charter
.

[6]

On January 7, 2009, the Minister ordered Mr. Johnstones
surrender to the United States. After the first sentence he found imposition of
a more severe sentence did not justify a refusal to surrender. As to the
argument founded on delay, the Minister observed Mr. Johnstone attributed
the delay to the United States, and s. 11 of the
Charter
did not
apply to the actions of a foreign State. Further, he noted Mr. Johnstone
could raise the issue of delay at his trial. With respect to Mr. Johnstones
allegation that the State had been aware of the I.N.S. proceedings, the
Minister stated:

The Authorities in the United
States have advised that the State is not notified by I.N.S. when a person is
arrested for a visa violation unless there is a warrant for that persons
arrest. As there was no warrant for Mr. Johnstones arrest I.N.S. had no
way to know that he had criminal proceedings pending, and the State had no way
to know that Mr. Johnstone was being deported. Mr. Johnstone was
deported without the States knowledge and before the warrant was issued for
failing to appear at his July trial date. I note that in his letter to me,
Mr. Johnstones father indicates that the prosecutor on the deportation
matter indicated that the Maricopa prosecutors office knew that
Mr. Johnstone was detained by INS. It is not clear to me how Mr. Johnstone
senior is in possession of this information. In any event, I am not in a
position to choose between competing versions of events occurring in the United
States. In my view, to the extent that the knowledge of the prosecutor with
respect to the deportation hearing is relevant, this matter can be raised in
the trial court in the United States.

[7]

On March 24, 2009, Mr. Johnstone applied to the Minister for
reconsideration of the surrender order. He provided a certified recording of
his deportation hearing that demonstrated the I.N.S. had been aware of his
pending charge, and argued the request for his extradition a year and a half
after his deportation was an abuse of process and contravened his right to be
tried within a reasonable time. As well, he submitted it was inappropriate to
order surrender based on the false or erroneous evidence the United States
had earlier provided as to the authorities knowledge of his outstanding charge.

[8]

On April 1, 2009, the Minister agreed to reconsider the surrender order.
Mr. Johnstone provided further submissions on April 15, 2009,
November 2, 2009, February 3, 2010, and September 26 and 27,
2011, expanding on his arguments of delay and misrepresentations by the United
States, and raising a new allegation that conditions in the Maricopa County detention
facilities were so egregious that they amounted to cruel and unusual
punishment.

[9]

The recording of the I.N.S. hearing submitted by Mr. Johnstone
included this exchange:

Immigration Judge [J]: Well, that brings up another question
Mr. [Slalom]. If he is due to show up in Court, are you sure that the
government wants to deport him.

S: Well, if he is deported it doesnt necessarily mean that
he is going to be leaving, he could be under departure controls, he can very
well be turned over to the state.

J: Just checking, just checking Mr. [Slalom]. I dont
want to go forward and deport a man that you then later some Sheriffs office
or somebody is going to come back to the government and say why did you deport
him when you knew that he had a court date.

S: Well, it could very well be that we will turn him over to
the Maricopa Sheriffs department to ensure his appearance at his Court
hearing.

J: I just want to get that on the record so that ...

S: OK

J: ... it doesnt come back to
bite me. Well sir, with that arrest, I am going to deny voluntary departure. I
will order you removed from the United States to Canada [...]

[10]

Mr. Johnstone and his father also provided affidavits stating that,
following his arrest by the I.N.S., Mr. Johnstones electronic monitoring ankle
bracelet, required by his bail conditions, had to be removed and
Mr. Johnstone had contacted the Pre-trial Services Coordinator and made
arrangements for his father to return it to that office in May 2006. As well,
Mr. Johnstone swore that during the I.N.S. hearing, while the courtroom
was cleared due to the nature of his charges, the federal prosecutor stated he
had spoken to the Maricopa County Attorneys Office to obtain details of the
case.

[11]

Mr. Johnstone submitted this evidence demonstrated that both the I.N.S.
and the County Attorneys Office had been fully aware he was being deported
while facing an outstanding charge in Maricopa County, and established that the
earlier information from the United States on this point had been false. He
maintained this cast doubt on the reliability of all information and assurances
provided by the requesting state, and reiterated his position that to extradite
him on the same charge three years later condoned unacceptable delay, was fundamentally
unfair, and amounted to an abuse of process.

[12]

As to the custodial conditions in Maricopa County, Mr. Johnstone argued
that deplorable and inhumane conditions had persisted there for many years, and
his surrender to those conditions would be unjust and oppressive, and a
violation of his rights under s. 7 of the
Charter
. He provided an affidavit
describing the overcrowding, threats of violence and unwanted sexual advances
from other inmates, unacceptable food and hygiene, and constant fear he had experienced
during the eight days he spent in custody there before his release on bail. He
submitted these conditions would be particularly oppressive for him as the
medical facilities for inmates were inadequate and he had a history of serious
cardiac problems, which had led to a six-vessel coronary bypass on
April 28, 2009.

[13]

As well, Mr. Johnstone provided over 100 pages of media reports and
court documents dealing with detention facilities in Maricopa County. These included
a 1997 report from Amnesty International about the use of excessive force on
inmates in Maricopa County; media reports on cases of inmate abuse there
between 1997 and 2008; and a 2008 report from the Goldwater Institute on The
Misplaced Priorities of the Maricopa County Sheriffs Office, which focussed
on the expenses arising from a large number of successful lawsuits involving
abuse of inmates, as well as the revocation in 2008 of the accreditation for
the Countys custodial health care facilities by the National Commission on
Correctional Health Care (the N.C.C.H.C.). As well, the material described
the following developments arising from a 1977 class action,
Graves v.
Arpaio
, brought by pre-trial detainees in Maricopa County for violations of
their civil rights. The action was settled in 1980 by a consent judgment that
established custodial standards for Maricopa County jails and ongoing
monitoring to ensure compliance with those standards. Sheriff Arpaio has since brought
several unsuccessful applications to be relieved from those terms. Most
recently, a 2008 hearing led to the termination of some monitoring
requirements, but a number remain in place. Finally, Mr. Johnstones father provided
a letter enclosing media reports to support his allegation that the United
States was providing misleading statements about improvements in the Maricopa
County custodial health care facilities.

[14]

The Minister sought further information from the United States in
response to Mr. Johnstones submissions and materials. On October 6, 2011,
he issued a decision rejecting Mr. Johnstones arguments and affirming the order
for his surrender.

[15]

With respect to Mr. Johnstones allegation that the United States
had provided false and misleading information, the Minister stated he accepted
further representations from the United States that the Maricopa County Attorneys
Office had not been aware of Mr. Johnstones deportation until
April 28, 2009 and, had they known of the I.N.S. proceedings, would have
opposed his removal. As to the return of the electronic monitoring bracelet,
the Minister accepted the United States advice that Pre-trial Services did not
have a relationship with the County or United States Attorney, and would have
reported this event solely to the court. Finally, the Minister indicated he was
not prepared to accept Mr. Johnstones allegation that an I.N.S.
representative had been in contact with the County Attorney, as there was nothing
to support this statement. While the Minister agreed the United States had been
mistaken in initially advising that the I.N.S. had no knowledge of
Mr. Johnstones pending charges, he did not find this error provided a
basis for questioning the reliability of other information from the requesting
state. The Minister also observed that if this error was relevant to
Mr. Johnstones defence, he would have an opportunity to raise it at his
trial. He attributed the inconsistency in the information from the United
States to a miscommunication, stating:

The Maricopa County Attorneys
Office is the authority responsible for the prosecution against Mr. Johnstone,
and they confirm that they were not aware of the decision to deport
Mr. Johnstone until after his deportation. In my view, the U.S. prosecutor
would have had nothing to gain in allowing Mr. Johnstones deportation to
take effect prior to the completion of the U.S. criminal proceedings and I
accept that the deportation occurred due to a lack of communication between
U.S. government departments.

[16]

As to Mr. Johnstones claim of abuse of process, the Minister said he
detected nothing in the material before him suggesting bad faith, malicious
purpose, or other misconduct integral to establishing such a claim.

[17]

With respect to Mr. Johnstones allegation of unreasonable delay amounting
to a violation of s. 11(b) of the
Charter
, the Minister stated he found
nothing that would alter the views he set out in the first surrender decision.

[18]

Turning to Mr. Johnstones argument about the conditions in Maricopa
County detention facilities, the Minister listed Mr. Johnstones specific
concerns, noting Sheriff Arpaio was one of the most feared and controversial
law enforcement figures in North America. He acknowledged Mr. Johnstones
account of his custodial experience and his cardiac condition, and discussed the
N.C.C.H.C.s revocation of Maricopa Countys accreditation for failure to
provide adequate health care to inmates. He also referred to the materials
provided by Mr. Johnstone and his father.

[19]

The Minister advised that the United States authorities had provided him
with additional information that indicated numerous efforts were being made to
improve the situation in the Maricopa County detention facilities. He referred
to ongoing discussions between the N.C.C.H.C. and Correctional Health Services
(C.H.S.) in Maricopa County, regarding recertification of the detention
facilities, and a N.C.C.H.C. report of December 22, 2010 indicating the
system was ready for a full accreditation survey that would be conducted in the
fall of 2011. The United States also advised that, in the meantime, C.H.S.
continued to adhere to correctional health standards.

[20]

The Minister also reviewed developments in the
Graves v. Arpaio
class action. He said that since 1995 the monitoring of the Maricopa County
detention facilities and related health care services had been reduced by court
order due to increased compliance by the Maricopa County Sheriffs Office,
although there remained areas in which the facilities failed to meet
constitutional standards. The Minister indicated that a team of medical and
mental health consultants was currently reviewing conditions and issuing
reports every 120 days, which had been sent to Mr. Johnstone. He further
noted that the United States had provided a copy of a 
Graves
Notice
that is posted in the Maricopa County detention facilities, and sets out the standards
the Maricopa County Sheriffs Office must meet, and contact numbers for inmates
to report complaints.

[21]

After referring to relevant jurisprudence, the Minister affirmed that
surrender should not be ordered if it would violate principles of fundamental
justice or be unjust or oppressive. He concluded:

Having reviewed all of the materials before me, I am
satisfied that, while conditions in the correctional facilities in Maricopa
County may be difficult, the Maricopa County Sheriffs Office is making serious
efforts to improve their facilities by addressing the issues set out in the
Graves
v. Arpaio
judgment, adhering to the recommendations of health consultants,
and correctional health standards. In that regard, I note that the NCCHC will
be conducting an accreditation survey very shortly to determine whether the
Maricopa County jail system will receive its re-accreditation. Furthermore,
through the 
Graves
Notice, inmates are made aware of the standards the
Maricopa County Sheriffs Office must meet and are provided with a mechanism
through which to lodge complaints if these standards are not met.

Canada has entered into an
extradition treaty with the United States and has therefore recognized that the
United States has a fair and fundamentally just judicial system. Persons who
choose to commit offences in the United States cannot expect to escape
prosecution because the conditions of their incarceration may be difficult. In
my view, in the circumstances of this case, Mr. Johnstones surrender
would not be unjust or oppressive, or violate his rights under the
Charter
on
the basis that the custodial situation in the Maricopa County Sheriffs Office
may be harsh.

[22]

The Minister referred to decisions of the Supreme Court of Canada that
had upheld surrender orders for persons who faced lengthy sentences under harsh
conditions in the requesting state. He addressed Mr. Johnstones medical
concerns, set out information from the United States demonstrating the
facilities of the Maricopa County jail system could deal with them, and decided
that an order for surrender would not be shocking to the Canadian conscience,
or be unjust or oppressive notwithstanding [Mr. Johnstones] health
concerns. The Minister concluded by stating he had considered all of
Mr. Johnstones submissions, and remained of the view his surrender was
warranted and would not be unjust or oppressive, or contrary to either the
Charter
or the
Act
.

[23]

On October 7, 2011, Mr. Johnstone applied to this Court for
judicial review of that decision, and a hearing was scheduled for
March 28, 2012. On March 20, 2012, however, Mr. Johnstones
counsel wrote to the Ministers representative advising he had recently
received a copy of a new document that directly contradicted the
representations made to the Minister that the County Attorney had not been
aware of Mr. Johnstones deportation until April 2009. He requested the
Minister again reconsider his surrender due to the ongoing lack of reliability
of representations by the Requesting State and the fact that the Minister has made
his decision on clearly erroneous information.

[24]

The new document, titled Motion to Revoke Bond and Exonerate Bond, is signed
by Eric G. Crocker, Deputy Public Defender, and dated May 9, 2006. It is
styled In the Superior Court of the State of Arizona in and for the County of
Maricopa, and names the State of Arizona as plaintiff and J. Johnstone as
defendant. The document states:

Defendant was out on release
having posted bond in the above-captioned matter. Defendant was subsequently
picked up by federal authorities on an alleged immigration violation. Defendant
now has a federal immigration hold on him that prevents him from being out on
the bond posted in the instant matter. Wherefore, defendant requests the bond
posted be revoked and the assets used to post said bond be exonerated to the
party posting same so that defendant can get credit for time being served
towards the instant matter.

The document indicates the case is assigned to the
Honourable Teresa A. Sanders, a judge of the Superior Court, and states the
original was filed with the Clerk of the Court of Maricopa County on May 9,
2006. It also states copies of the document were mailed or delivered to Judge
Sanders and to Keith Manning, Deputy County Attorney, on the same date.

[25]

On March 23, 2012, the Ministers representative wrote to
Mr. Johnstones counsel to advise the Minister did not consider it
appropriate to accept this late submission. She pointed out the Minister had
earlier reconsidered his decision on surrender and confirmed his previous surrender
order, and the judicial review was imminent.

[26]

On March 28, 2012, following submissions from Mr. Johnstones
counsel, this Court adjourned the judicial review of the Ministers second
surrender order to permit Mr. Johnstone to bring an application for
judicial review of the Ministers May 23, 2012 decision, refusing to
reconsider his decision to order surrender.

[27]

At the conclusion of his argument before us, Mr. Johnstones counsel
advised he had just received a further document that supported his position.
The State Attorney had been aware of Mr. Johnstones pending deportation.
We decided it would be inappropriate to consider this information on these
judicial reviews, and Mr. Johnstone may approach the Minister directly
with that information should he chose to do so.

Issues on
Appeal

[28]

Mr. Johnstone raises three issues on the first judicial review:

1)       Was the
Ministers conclusion that Mr. Johnstones surrender was not contrary to
s. 44(1)(a) of the
Act
or s. 7 of the
Charter
as a
result of his deportation reasonable?

2)       Was the
Ministers conclusion that Mr. Johnstones surrender was not contrary to s. 44(1)(a)
of the
Act
or s. 7 of the
Charter
based on his allegations
of cruel and unusual punishment reasonable?

3)       Did the
Minister sufficiently respond to Mr. Johnstones submissions?

[29]

With respect to the second judicial review, Mr. Johnstone says the
Minister unreasonably refused to reconsider his order for surrender in the face
of new and relevant evidence.

Analysis

A.       The First
Judicial Review

[30]

Under s. 44(1)(a) of the
Act,
the Minister must refuse to
make a surrender order if satisfied that it would be unjust or oppressive
having regard to all the relevant circumstances. There is significant overlap
between that test and the criteria for establishing a violation of a subjects
s. 7
Charter
rights. If surrender is contrary to the principles of
fundamental justice protected by s. 7, it will in all probability also be
unjust or oppressive, and shock the Canadian conscience:
Fischbacher v.
Canada (Minister of Justice)
, 2009 SCC 46 at paras. 38-39, [2009] 3
S.C.R. 170;
Lake v. Canada (Minister of Justice)
, 2008 SCC 23 at paras.
24, 32, [2008] 1 S.C.R. 761.

[31]

Under s. 57 of the
Act
, a person subject to a surrender order may
apply to the Court of Appeal of the province in which he was committed for
judicial review of that order. Section 57(7) sets out the grounds for such a
review by reference to s. 18.1(4) of the
Federal Courts Act
, R.S.C.
1985, c. F-7. Mr. Johnstones arguments on this review fall within s.
18.1(4)(d), which provides this Court may grant relief if the Minister based
the order of surrender on an erroneous finding of fact that [he] made in a
perverse or capricious manner or without regard for the material before [him].

[32]

Review of a surrender order is governed by a standard of reasonableness,
whether the alleged error relates to the application of the test in
s. 44(1)(a) or to a failure to find a violation of the subjects s. 7
Charter
rights. This deferential standard recognizes the complexity of the Ministers
task, which requires a balancing of multiple competing factors, some of which import
political and international considerations that lie within the Ministers
particular expertise. Appellate review therefore does not extend to an
independent assessment of the relevant factors, but simply addresses whether
the Minister considered them and reached a defensible decision that falls
within a range of reasonable outcomes:
Lake
at paras. 34, 41.

[33]

The central question is whether surrender is in accord with the
principles of fundamental justice. Here, the Minister properly framed his
decision in those terms, finding the surrender order was not unjust or
oppressive, or contrary to the
Charter
. The issue is whether that
conclusion was unreasonable, either because of the consequences arising from
Mr. Johnstones earlier deportation, or because his surrender will consign
him to custodial conditions that are fundamentally unjust and oppressive.

1.       Was
the Ministers conclusion that Mr. Johnstones surrender was not contrary
to s. 44(1)(a) of the Act or s. 7 of the Charter as a result of his
deportation reasonable?

[34]

Mr. Johnstone acknowledges that this Court in
United States of
America v. Gillingham
, 2004 BCCA 226 at para. 139, 184 C.C.C.
(3d) 97, affirmed that a requesting state is not precluded from obtaining
extradition of a person whom it earlier deported. His case therefore does not
rest on his deportation alone, but on its consequences, in particular the delay
it has caused, and what he characterizes as the misrepresentations and
falsehoods offered by the United States in an attempt to explain it.

[35]

Mr. Johnstone submits it was unreasonable to order his surrender
when, six years previously, the United States deported him in full knowledge
that he was facing a criminal charge there. He says the Minister erred in accepting
a conflicting and unreliable explanation for this from the United States, and
in failing to give proper weight to his own evidence, which he says clearly
demonstrates two false statements by the American authorities. First, contrary
to their initial representations,  the I.N.S. knew about his pending criminal
charge when it deported him. Second, the County Attorneys Office was aware of the
I.N.S. proceeding before he left the country. In the result, Mr. Johnstone
argues no satisfactory explanation has been provided by the United States for
his deportation, for the untenable delay in seeking his return, and for the
false information initially provided by the requesting state, which contributed
to further delay. He maintains this demonstrates a fundamental lapse in the
obligations of the United States as an extradition partner, and militates
against surrender.

[36]

Mr. Johnstone further argues the delay has been compounded by the Ministers
unexplained and significant delay in conducting the reconsideration. He says
that in simply affirming his initial views on delay in the first surrender
order, the Minister erred by giving no consideration to the further
two-and-a-half years occupied in reconsidering that order. While Mr. Johnstone
stops short of claiming the Ministers delay constitutes an abuse of process,
he submits it must be considered in assessing whether his surrender shocks the
conscience. He maintains the cumulative delay has irretrievably compromised
trial fairness, and says it was unreasonable for the Minister to conclude these
circumstances, taken as a whole, did not create fundamental unfairness and render
it unfair and oppressive to surrender him.

[37]

I am unable to agree. It is apparent from the Ministers decision that
he considered all of the evidence before him, including that proffered by Mr.
Johnstone and his father. It was for him to assess the weight of that evidence,
and the import of any inconsistencies in it. He found no substance to
Mr. Johnstones contention that the I.N.S. and the County Attorneys
Office had been in direct communication before his deportation. While he accepted
the initial statement by the United States that the I.N.S. did not know about
Mr. Johnstones charges before his deportation was erroneous, he attributed
this to a miscommunication that was not of sufficient magnitude to cast doubt
on the reliability of other information from the United States. The Minister
was not convinced the County Attorney was aware of the I.N.S. proceedings
before Mr. Johnstone was removed. He observed the United States
authorities had nothing to gain by permitting Mr. Johnstones deportation
prior to dealing with his criminal charge. As well, he found nothing to suggest
deliberate falsehood or collusion that would add force to Mr. Johnstones
allegation of bad faith and abuse of process. Finally, the Minister indicated
Mr. Johnstone could raise these circumstances at his trial in the United
States to the extent they were relevant.

[38]

I find no reviewable error in these findings and observations. I am
satisfied they are reasonable conclusions, supported by the evidence before the
Minister. It is not for this Court to re-weigh that evidence and substitute our
view of it.

[39]

As to the impact of delay, two types of delay may have a bearing on
whether it will be oppressive and fundamentally unjust to surrender a person to
a foreign state. The first is delay that has compromised the fairness of the
extradition proceedings. The second is delay so egregious that it is simply
unacceptable and shocks the conscience of Canadians or, alternatively,
constitutes an abuse of process and amounts to violation of the persons rights
under s. 7 of the
Charter
:
Gillingham
at paras. 91-94.

[40]

Mr. Johnstones argument relies on the second residual type of delay. He
does not allege unfairness in the extradition proceedings. Further, although he
maintains trial fairness has been compromised, he provides no details of any specific
prejudice he faces due to delay. Even had he done so, the Minister correctly
observed this issue is best raised at his trial in the United States, where the
sixth amendment to the United States Constitution guarantees the right to a
speedy trial:
Argentina v. Mellino
,

[1987] 1 S.C.R. 536 at 549,
33 C.C.C. (3d) 334.

[41]

Dealing first with the 16-month delay between Mr. Johnstones deportation
and the extradition request, the Minister properly concluded in his first
surrender decision that Mr. Johnstone cannot invoke s. 11(b) of the
Charter
as it does not apply to the activities of a foreign country:
United
States of America v. Allard
, [1987] 1 S.C.R. 564 at 571, 33 C.C.C. (3d) 501;
Mellino
at 547-548. Moreover, delay preceding an extradition request is
analogous to pre-charge delay in Canada, and will only be considered in
exceptional circumstances where there is evidence of prejudice:
Garz v.
United States of America
, 2006 QCCA 222 at paras. 97-99, 215 C.C.C. (3d)
429. As set out above, Mr. Johnstone has produced no such evidence.

[42]

The balance of the delay is comprised of the two-and-a-half years
between Mr. Johnstones request for reconsideration and the second order
for surrender. While the Minister did not expressly consider this delay, for
the following reasons I am satisfied it cannot provide a foundation for setting
aside that order.

[43]

While Mr. Johnstone claims this delay was caused primarily by the need
to clarify erroneous information from the United States, the Ministers
findings that those errors were not deliberate and were effectively
insignificant reduces the force of this argument. Furthermore, it cannot be
ignored that the manner in which Mr. Johnstone has presented his case has
contributed substantially to the delay. Instead of providing all of his
arguments and evidence as submissions on the first surrender order, new issues
and evidence have been submitted in a piecemeal manner, without explanation.
This has required the Minister to make repeated requests for further
information from the United States. The last response was received in August
2011, two months before the second order for surrender. Mr. Johnstones
approach led to an adjournment of this judicial review due to late production
of new evidence. As observed by Madam Justice Ryan in
Canada (Minister of
Justice) v. Reumayr
, 2005 BCCA 391 at para. 129, 199 C.C.C. (3d) 1, a
person facing extradition is entitled to take these steps, but cannot then lay
the blame for the resulting delay at the feet of the Minister or the requesting
state.

[44]

Finally, it is noteworthy that cases involving much longer delays have
resulted in extradition. In
Turchin v.
Étas-Unis dAm
érique,
2007
QCCA 136 at paras. 56-60, 219 C.C.C. (3d) 214, leave to appeal refd [2007]
C.S.C.R. No. 104, Mr. Turchin was extradited to the United States after a
20-year delay between his deportation to Canada and the extradition request.
See also
Hungary v. Dascalu
, 2009 BCCA 132 at paras. 24-25, 244 C.C.C.
(3d) 98, in which there was a five-year delay between an extradition request
and the issue of the authority to proceed.

[45]

In my view, the Minister reasonably concluded nothing in the proceedings
to date provide a foundation for a finding of unacceptable delay that
constitutes an abuse of process or would shock the Canadian conscience. I would
not accede to this ground of appeal.

2.       Was
the Ministers conclusion that Mr. Johnstones surrender was not contrary
to s. 44(1)(a) of the Act or s. 7 of the Charter based on his
allegations of cruel and unusual punishment reasonable?

[46]

Mr. Johnstone reiterates the arguments he made to the Minister,
maintaining the conditions in Maricopa County detention facilities are
oppressive and inhumane as evidenced by his own experience, and the body of
independent evidence he submitted to the Minister. Relying on
Suresh v. Canada
(Minister of Citizenship and Immigration)
, 2002 SCC 1 at para. 56,
[2002]1 S.C.R. 3, he says this evidence establishes he faces a substantial risk
of cruel and unusual punishment to a degree that shocks the conscience and
renders his surrender contrary to the principles of fundamental justice
enshrined in s. 7 of the
Charter
and in Canadas international
treaty obligations. He says that, in ordering surrender, the Minister
unreasonably ignored reliable independent evidence and placed unjustified
weight on assurances by the United States that substandard custodial conditions
in Maricopa County were being addressed. He submits these assurances were not
credible given the Countys appalling record of inmate abuse and the pattern of
misrepresentations by the United States.

[47]

I earlier summarized the evidence presented by Mr. Johnstone, the
responsive material provided by the United States, and the Ministers decision
on this point at paras. 12-13 and 18-22 of this judgment. In essence, the
Minister accepted that while conditions in Maricopa County detention facilities
were difficult, surrender orders had been upheld in other cases in which the
person sought faced a lengthy sentence under harsh conditions. As well, he was
satisfied that recent information indicated serious efforts were underway to
impede custodial conditions in Maricopa County. He also observed that Canada
has an extradition treaty with the United States and thus recognizes the
American justice system is fundamentally fair and just. He concluded that
surrendering Mr. Johnstone to that system would not shock the conscience or be
contrary to s. 7.

[48]

I am satisfied that was a reasonable decision on the jurisprudence and
the evidence available to the Minister. It is clear he was aware of the
widespread criticism of conditions in Maricopa County jails. The Minister was
not required to expressly refer to each document submitted by Mr. Johnstone,
some of which described events occurring over 15 years ago. He properly chose
to rely on the most recent information, which came from credible and
independent sources and described initiatives and improvements since Mr.
Johnstones incarceration in Maricopa County in 2006.

[49]

As to the authorities, the Minister correctly noted that the Supreme
Court in
United States of America v. Burns
, 2001 SCC 7 at
paras. 60, 67-69, [2001] 1 S.C.R. 283, affirmed that the potential
punishment reasonably anticipated in the requesting state was relevant to
whether surrender would shock the conscience or violate the principles of fundamental
justice. The Court also observed, however, that the term shocks the conscience
emphasizes the exceptional nature of circumstances that will constrain the
Ministers discretion to order surrender, and refers to punishment so extreme
that it becomes the controlling factor in the extradition analysis.

[50]

I note that other Canadian authorities to which the Minister referred
have described torture, the death penalty, stoning an individual to death, and
extrajudicial punishment unsanctioned by a law of general application as examples
of exceptional circumstances that would shock the Canadian conscience:
Kindler
v. Canada (Minister of Justice)
, [1991] 2 S.C.R. 779 at 832, 67 C.C.C. (3d)
1;
Gwynne v. Canada (Minister of Justice)
(1998), 103 B.C.A.C. 1 at
paras. 34-37, 50 C.R.R. (2d) 250, leave to appeal refd, [1998] SCCA No. 95;
Burns
at paras. 67-69. In my view, the Minister could reasonably conclude on the
evidence before him that the conditions in Maricopa County detention facilities
did not reach that level of inhumanity.

[51]

The Ministers decision is supported by two decisions of this Court that
found harsh custodial conditions in the requesting state did not justify
refusing surrender. In
Gwynne
, Mr. Gwynne had escaped from a prison
in Alabama where he was serving a 120-year sentence, and the United States
sought his extradition to serve the remainder of that sentence. The Court
considered whether the harsh sentence faced by Mr. Gwynne in the degrading,
dangerous, and apparently endemic prison conditions in Alabama demonstrated
his extradition would shock the conscience and be contrary to principles of fundamental
justice. Mr. Justice Goldie, writing for the majority, was not persuaded
surrender was unreasonable. He concluded that while the conditions
Mr. Gwynne described were subjectively shocking, safeguards of his
constitutional rights in the United States were in place, albeit working
fitfully. As well, Mr. Justice Goldie observed that Mr. Gwynnes argument
invited the Court to examine and condemn the criminal justice system of the
United States, a prospect that he found to be a singularly unsuitable task
for the Court. He accordingly concluded that although the evidence presented
subjectively abhorrent custodial conditions, these were not contrary to the
principles of fundamental justice. Southin J.A. dissented, holding the Alabama
prison conditions, combined with the harsh sentence, were unacceptable.

[52]

In
United States of America v. Reumayr
, 2003 BCCA 375, 176 C.C.C.
(3d) 377, leave to appeal refd, [2005] S.C.C.A. No. 474, the person sought relied
on reports from human rights organizations to argue the degrading and
dehumanizing conditions in United States federal prisons would violate Canadian
principles of fundamental justice. Mr. Justice Mackenzie, writing for the
Court, referred to
Gwynne
and, while accepting custodial conditions in American
federal prisons could be criticized, observed that a decision by the Minister
that they were so shocking as to be unacceptable would have profound
implications for the extradition relationship between Canada and the United
States. He found the Ministers analysis appropriate, and declined to set aside
the order for surrender.

[53]

I would not give effect to this argument.

3.       Did
the Minister sufficiently respond to Mr. Johnstones submissions?

[54]

Under this heading Mr. Johnstone seeks to advance a stand-alone
complaint that the reasons for surrender given by the Minister were inadequate.
Relying on
Baker v. Canada (Minister of Citizenship and Immigration)
,
[1999] 2 S.C.R. 817 at para. 43, 174 D.L.R. (4th) 193, and
United States of
America v. Taylor
, 2003 BCCA 250 at paras. 15-16, 175 C.C.C. (3d) 185, he
submits his surrender was clearly a significant decision and the Minister was
obliged to provide reasons that were responsive to his submissions, explain why
he rejected them, and demonstrate that he had considered all relevant
circumstances as required by s. 44(1)(a) of the
Act
.
Mr. Johnstone says the Ministers decision fails to meet these criteria
and is simply conclusory. The order for surrender was thus made without regard
to the material before [him], contrary to s. 18.1(4)(d) of the
Federal
Courts Act
, and the matter must be remitted to the Minister for further
consideration.

[55]

I am unable to agree. First, the Supreme Courts decision in
Newfoundland
and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board)
,
2011 SCC 62, [2011] 3 S.C.R. 708 [
N.L.N.U.
], has shed significant doubt
as to whether adequacy of reasons is a stand-alone basis for setting aside a
decision on a judicial review undertaken on a standard of reasonableness.
Instead, Justice Abella, writing for the Court, held at para. 14 that, rather
than conducting two discrete inquiries, the reviewing court should adopt a
more organic exercise and review the reasonableness of the outcome and the adequacy
of the reasons together.

[56]

Here, the link between these two issues is evident in my analysis on the
first two issues raised by Mr. Johnstone, which, of necessity, involved an
examination of the Ministers reasons to ensure he had addressed all relevant
circumstances as required by s. 44(1)(a). I am satisfied that examination
revealed the Ministers decision met the standard affirmed by Justice Abella at
para. 16 of
N.L.N.U.
: his reasons are sufficient to allow this Court to
understand why he made his decision to surrender Mr. Johnstone, and to
determine whether that decision fell within the range of reasonable outcomes.

[57]

In
Lake
at para. 46, Justice LeBel affirmed the Minister must
provide reasons sufficient to allow the person to understand why he is being
surrendered, and to permit appellate review. The reasons need not be
comprehensive or analyze every factor, but they must demonstrate the Minister
considered the individuals submissions, and explain why he rejected them. The
Ministers reasons unquestionably met this standard.

[58]

I am satisfied the Minister considered all of the material provided to
him, and reasonably concluded that surrender was justified. I would therefore
dismiss Mr. Johnstones application for judicial review of the second
order of surrender.

B.       The
Second Judicial Review

[59]

Mr. Johnstone maintains it was unreasonable for the Minister to
refuse reconsideration in the face of the Motion to Revoke Bond and Exonerate
Bond that he sent to the Minister on March 20, 2012. Mr. Johnstone
says this document clearly contradicts earlier statements from the United
States to the effect the County Attorney was unaware of his deportation proceedings,
and adds to the continuing pattern of misleading representations made by the
requesting state. He says the Ministers refusal to reconsider his decision in
light of this new information exemplifies his unreasonable approach.

[60]

Section 43(1) of the
Act
states the general rule that the
Minister may accept submissions from the person sought for 30 days after
committal. Section 43(2), however, gives the Minister broad discretion to
receive later submissions in circumstances that the Minister considers appropriate.

[61]

The order committing Mr. Johnstone was made four years ago. The Minister
earlier exercised his discretion in Mr. Johnstones favour by agreeing to
reconsider the first surrender order. This led to a prolonged exchange of
submissions and responses. Further, the Minister did not strongly oppose
Mr. Johnstones application to adjourn the hearing of the first judicial
review on March 28, 2012 to enable Mr. Johnstone to apply for further
reconsideration.

[62]

Given this history, I am not persuaded it was unreasonable for the
Minister to refuse further reconsideration on March 23, 2012. Mr. Johnstone
has had ample opportunity to put forward his case over the last four years but,
as mentioned previously, he has done this in a piecemeal and incomplete manner
without any explanation for this approach. Moreover, the bond document by
itself is not conclusive. It simply states Mr. Johnstone is on an immigration
hold. There is nothing to say what transpired in the proceeding thereafter and
what, if any, role the County Attorneys Office played in it. It is a
reasonable inference that the bond holder was someone known to Mr. Johnstone
who might have provided this information but, without explanation, failed to do
so.

[63]

Finally, as earlier described, the alleged misrepresentations as to the
County Attorneys knowledge of Mr. Johnstones deportation do not go to a
question of substance in this proceeding. As the Minister observed, that office
had nothing to gain by permitting his deportation, and any errors and
miscommunications by the United States authorities in trying to explain why it
happened do not appear to be rooted in malice or bad faith. To the extent these
communications, and the bond document, are relevant, Mr. Johnstone may raise
them at his criminal trial in Arizona.

[64]

I would accordingly dismiss the second judicial review.

Conclusion

[65]

The judicial review of the second order for surrender, and the judicial
review of the decision declining reconsideration, are both dismissed.

The Honourable Madam Justice Neilson

I Agree:

The
Honourable Madam Justice Saunders

I Agree:

The Honourable Madam Justice
Bennett


