



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Pakulski, 2014 ONCA 81

DATE: 20140129

DOCKET: C55827 and C57319

Feldman, Pepall and Tulloch JJ.A.

IN THE MATTER OF an appeal of a committal order pursuant
    to s. 49 of the
Extradition Act
, S.C. 1999, c. 18

BETWEEN

The
    Attorney General of Canada on behalf of the United
    States of America and Minister of Justice

Respondents

and

Joanna Pakulski

Applicant/Appellant

Joanna Pakulski, in person

Jill Copeland, Duty Counsel for the appellant

Heather J. Graham, for the respondent

Heard: January 13, 2014

On appeal from the committal order of Justice S.G. Himel of
    the Superior Court of Justice, dated July 31, 2012 and judicial review of the
    order of surrender of the Minister of Justice.

ENDORSEMENT

[1]

The appellant appeals an order committing her into custody for the
    purposes of extradition to the United States to face drug trafficking charges. 
    She  also seeks judicial review of the order of surrender made by the Minister
    of Justice.

[2]

Dealing first with the appeal of the committal order, the appellant
    submits that the committal judge erred in two ways. The first was by excluding
    evidence the appellant wished to lead to attack the credibility of the
    co-operating witnesses  to show that they had motive to lie. The second was
    that the committal judge erred by relying on a previous version of the
    appellants factum.

[3]

In our view, there is no merit to either of these grounds of appeal.

[4]

The committal judge gave detailed and careful reasons for her decision
    and we agree with them.   The proposed evidence was properly excluded for the
    reasons advanced by her.  As the committal judge noted, credibility issues
    should be resolved by the trier of fact.   Moreover, quite apart from the
    statements of the two co-operating witnesses, the US $59,540 found in the
    appellants car supported the absence of any manifest unreliability in the
    evidence contained in the record of the case.  We are also not  persuaded that
    the wrong factum was relied upon by the committal judge.

[5]

In conclusion, the committal judge accurately characterized and
    considered the nature and context of the evidence and applied the correct legal
    principles.  We see no error.  The committal appeal is dismissed.

[6]

Turning to the request for judicial review of the Ministers decision, the
    applicants funding application was dismissed and she has been
    self-represented.  There is no dispute that neither the applicant nor the respondent
    made any mention in their communications with the Minister that the applicant
    had recently given birth to a child.

[7]

The Crown submitted that, pursuant to s. 43(2) of the
Extradition
    Act
, s. C. 1999, c. 18, at any time it was open to the applicant to ask
    the Minister to accept further submissions and to reconsider his decision in
    light of the fact that she is a single mother who recently gave birth to a
    child. However, she had failed to do so.

[8]

The appellant relies on a previous decision by the Minister,
The
    Attorney General of Canada on behalf of the United States of America and
    Minister of Justice v. Tania Siyam
, December 12, 2006, where the Minister,
    in reconsidering a surrender decision, observed that a newborn is an important
    factor in determining whether surrender would be unjust or oppressive.

[9]

Under the exceptional circumstances of this case, where the applicant
    was unrepresented when she made her submissions to the Minister, she had a
    newborn which is a relevant fact, and the Crown was aware that that fact was
    not included in the original submission, we are of the view that the motion for
    judicial review should be adjourned to give the applicant the opportunity to ask
    the Minister to accept further submissions and to advise the Minister of her
    circumstances.  There is judicial precedent for such an approach.  See
United
    States v. Johnstone
, 2013 BCCA 2 at para. 61.

Result

[10]

The
    appeal from the committal order is dismissed.

[11]

The
    application for judicial review is adjourned. The applicant shall have 30 days
    to make further submissions to the Minister. Once a response has been received,
    the applicant, Crown counsel and Ms. Copeland shall seek a date before this
    panel for the matter to be returned.

[12]

The
    applicant was granted bail pending both appeals. Following the applicants
    surrender to receive these reasons, the court will approve bail on the same
    terms pending the judicial review.

K. Feldman J.A.

S.E. Pepall J.A.

M. Tulloch J.A.


