



COURT OF APPEAL FOR ONTARIO

CITATION: Romania v. Boros, 2020 ONCA 216

DATE: 20200320

DOCKET: C66606

Strathy C.J.O., Miller
    and Trotter JJ.A.

BETWEEN

The Minister of Justice and the Attorney General of
    Canada on Behalf of Romania

Respondent

and

Clara Eva Boros

Applicant

Julianna A. Greenspan and Brad Greenshields, for the applicant

Adrienne Rice, for the respondent

Heard: March 4, 2020

On judicial review of the decision
    of the Hon. David Lametti, ordering the applicants surrender, dated February
    19, 2019.

REASONS FOR DECISION


Introduction


[1]

Romania seeks the extradition of Clara Eva Boros for fraud and forgery
    offences allegedly committed between 1993 to 1998.

[2]

Ms. Boros was committed for extradition on April 21, 2017. The Minister
    of Justice (the Minister) signed a surrender order on February 19, 2019. The
    applicant applies for judicial review of the Ministers order under s. 57 of
    the
Extradition Act
, S.C. 1999, c. 18. For the following reasons, we allow
    the application and remit the case back to the Minister for further
    consideration.

Background

[3]

Ms. Boros, a Romanian citizen at the time, was charged with offences
    related to embezzlement and forgery in the course of her employment. It was
    alleged that she committed these offences between 1993 and 1998, resulting in
    losses to her employer of roughly CAD $100,000 at the time (estimated to be
    approximately $217,000 today).

[4]

Ms. Boros was employed as a cashier and was responsible for making
    deposits on behalf of her employer into a corporate bank account. It is alleged
    that she falsified documents (i.e., deposit slips and company ledgers), enabling
    her to skim off some of the money that ought to have been deposited to the
    credit of her employer. The employer claims that it had to obtain an
    interest-bearing loan to cope with the loss and that there has been no
    recovery.

[5]

In the Authority to Proceed (ATP), issued under s. 15 of the
Extradition
    Act
, the Minister lists the Canadian offences corresponding to the alleged
    Romanian offences as fraud (
Criminal Code
, R.S.C. 1985, c. C-46, s.
    380) and forgery (s. 368(1)).

[6]

Ms. Boros arrived in Canada on September 24, 1998 and sought refugee
    status, which was granted on October 26, 1999. She obtained permanent resident
    status on December 27, 2000, and Canadian citizenship on August 15, 2005. Ms.
    Boros is currently 54 years old, married, and has three children.

[7]

The applicant was tried and convicted
in absentia
in Romania on
    January 10, 2000. On the same day she was sentenced to 10 years imprisonment,
    fined, and ordered to pay restitution. Her appeal from sentence was dismissed
    on April 13, 2000. As the extradition judge observed in her Reasons for
    Judgment (
Romania v. Boros
, 2017 ONSC 1656), at para. 10, Ms. Boros
    was represented by counsel throughout the proceedings in Romania. However, she
    also notes that Ms. Boros denied being properly summoned. Documentation from
    the Romanian court states that Ms. Boros was legally summoned and has failed
    to appear in court, as she has been absconding from both prosecution and from
    trial.

[8]

There is a serious dispute as to when the Romanian authorities became
    aware that Ms. Boros was in Canada. Ms. Boros takes the position that, by
    virtue of a September 23, 1998 police statement given by a manager of the applicants
    former employer (Ola Ioan), Romanian authorities were aware that she was in
    Canada at that time. In that statement Ms. Ioan said: from unofficial sources
    the cashier Boros Clara is assumed to be in Canada attempting to abscond from
    the offence committed. In fact, Ms. Boros arrived in Canada the very next day,
    on September 24, 1998. The respondent asserts that Romania only learned of Ms.
    Boros whereabouts as a result of receiving an August 11, 2008 Interpol
    notification.

The Extradition Hearing

[9]

On December 4, 2008, the Minister of Justice received provisional
    materials from Romania seeking Ms. Boros extradition. An ATP was issued on May
    13, 2015. An
ex parte
summons was not served on Ms. Boros until November
    16, 2016. This was roughly 18 months after the issuance of the ATP, and almost
    eight years after Romanias request.

[10]

In
    thorough reasons, the extradition judge concluded, at paras. 34-36, that there
    was sufficient evidence to establish a
prima facie
case that the extradition
    crimes listed in the ATP were committed: see
Extradition Act
, s.
    29(1)(a). The extradition judge considered other arguments advanced by Ms.
    Boros, including whether a stay should be granted for an abuse of process
    because of the delay in seeking her extradition. The extradition judge declined
    to stay the committal order on this basis. As she said, at para. 60:

As the cases above demonstrate, a lengthy delay on the part of
    a foreign government, without any impact on the fairness of the extradition
    hearing, does not constitute an abuse of process warranting a stay of
    proceedings. This is so even when the requesting state is aware of the
    whereabouts of the person sought, and the person was convicted and sentenced
in
    absentia
.

While I am sympathetic to the respondents predicament of being
    sought for extradition years after having settled in Canada, I find that the
    respondent has not demonstrated a negative impact on the fairness of the
    extradition hearing.

[11]

Ms.
    Boros was ordered committed for extradition. She has not appealed this order.

The Decision to Surrender Ms. Boros

[12]

Since
    her committal, Ms. Boros has made numerous submissions to successive Ministers
    of Justice, requesting that they exercise their discretion not to order her
    surrender. These submissions have variously related to the following issues: the
    delay by Romania and Canada in the extradition process; Ms. Boros personal
    circumstances; poor Romanian prison conditions; Ms. Boros medical conditions
    that require ongoing treatment; Ms. Boros Hungarian-Roma minority status that
    is said to attract persecution in Romania; the stark disparity between Romanian
    and Canadian sentences; and the lack of integrity of the
in absentia
trial and sentencing proceedings in Romania.

[13]

In
    a lengthy letter (20 pages), the Minister rejected each of these claims and
    provided reasons. Based on his conclusions, the Minister determined that it
    would be appropriate to surrender Ms. Boros for extradition. In terms of the
    delay occasioned in the proceedings, the Minister said, in my view, this is
    not one of those clearest of cases where the overall delay was occasioned by,
    or constitutes, conduct that is so offensive to notions of fair play and
    decency that surrender would undermine the extradition process. Referencing
    the language of s. 44(1)(a) of the
Extradition Act
, the Minister concluded
    that the applicants surrender would not be unjust or oppressive; with regard
    to the
Charter
, it would not shock the conscience of Canadians or
    unjustifiably violate the principles of fundamental justice.

[14]

The
    Minister ordered that Ms. Boros be surrendered.

The Arguments on the Judicial Review Application

[15]

Ms.
    Boros submits that the Minister exercised his discretion unreasonably in
    concluding surrender would not be unjust or oppressive (
Extradition Act
,
    s. 44(1)(a)) and contrary to s. 7 of the
Charter
, having regard to the
    15-year delay between the
in absentia
foreign proceedings and the
    Authority to Proceed. This submission encompasses both the time it took
    Romanian authorities to request Ms. Boros extradition (8 years from when the
    offences were discovered), as well as Canadas delay in issuing an ATP (7 years
    after Ms. Boros extradition was requested by Romania). Ms. Boros also relies
    on the additional 18 months that elapsed between the issuance of the ATP and
    the summons.

[16]

Ms.
    Boros submits that, in relation to the delay in Romania, the Minister failed to
    make appropriate inquiries of Romanian officials to properly resolve the conflicting
    evidence concerning when Romania first became aware that she was in Canada. With
    respect to Canadas delay, Ms. Boros contends that this lengthy time period is
    not properly accounted for and the manner in which the Minister addressed the
    issue lacks transparency.

[17]

The
    respondent submits that there was no untoward delay on the part of the Romanian
    government. It acted promptly after learning of Ms. Boros location upon
    receiving the August 11, 2008 Interpol notification. Moreover, it takes the
    position that the delay at the Canadian end was not unreasonable, and certainly
    not sufficient to prevent the applicants extradition.


Analysis

[18]

On
    an application for judicial review under the
Extradition Act
, the
    Ministers surrender decisions are to be afforded substantial deference and
    assessed on a standard of reasonableness. In
Lake v. Canada (Minister of
    Justice)
, 2008 SCC 23, [2013] 1 S.C.R. 761, LeBel J. described the
    applicable standard, at para. 41:

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.
[Emphasis added.]

Moreover, in conducting this type of review, this court
    must acknowledge the Ministers superior expertise in Canadas international
    relations and foreign affairs: see
India v. Badesha
, 2017 SCC 44,
    [2017] 2 S.C.R. 127, at para. 39.

[19]

In
    its recent decision in
Canada (Minister of Citizenship and Immigration v.
    Vavilov
, 2019 SCC 65, the Supreme Court considered the nature of the
    reasonableness standard of review. As part of its analysis, the majority
    addressed transparency in decision-making and its place within a reasonableness
    review framework. As the majority said, at paras. 13, 15, and 95 of its
    reasons:

Reasonableness review is an approach meant to ensure that
    courts intervene in administrative matters only where it is truly necessary to
    do so in order to safeguard the legality, rationality and fairness of the
    administrative process. It finds its starting point in the principle of
    judicial restraint and demonstrates a respect for the distinct role of
    administrative decision makers.
However, it is not a rubber-stamping
    process or a means of sheltering administrative decision makers from
    accountability. It remains a robust form of review.

. . .

In conducting a reasonableness review, a court must consider
    the outcome of the administrative decision in light of its underlying rationale
    in order to ensure that the decision as a whole is transparent, intelligible
    and justified.
What distinguishes reasonableness review from correctness
    review is that the court conducting a reasonableness review must focus on the
    decision the administrative decision maker actually made, including the
    justification offered for it, and not on the conclusion the court itself would
    have reached in the administrative decision makers place.



That being said, reviewing courts must keep in mind the
    principle that the exercise of public power must be justified, intelligible and
    transparent, not in the abstract, but to the individuals subject to it
. It
    would therefore be unacceptable for an administrative decision maker to provide
    an affected party formal reasons that fail to justify its decision, but
    nevertheless expect that its decision would be upheld on the basis of internal
    records that were not available to that party. [Emphasis added.]

We return to the issue of transparency below when evaluating
    the Ministers response to claims of unreasonable delay by the Romanian
    authorities, and the delay in Canada.

[20]

As
    a preliminary matter, it is clear that s. 11(b) of the
Charter
has no
    direct application to extradition proceedings. However, delay is among the
    relevant factors the Minister may take into account under s. 44(1)(a) of the
Extradition
    Act
: see
United States of America v. Cavan
, 2015 ONCA 664, 329
    C.C.C. (3d) 485, at para. 46. In order to foreclose surrender, the delay must
    amount to an abuse of process: see
Argentina v. Mellino
, [1987] 1
    S.C.R. 536, at pp. 547-548;
United States of America v. Allard
, [1987]
    1 S.C.R. 564, at p. 571.

[21]

In
    his letter of February 19, 2019, the Minister acknowledged that delay in
    seeking extradition is a relevant factor. The Minister wrote: I have reviewed
    the delay in seeking Ms. Boros extradition and conclude that it does not
    constitute an abuse of process.

[22]

The
    Minister referenced the conflicting evidence as to when the Romanian
    authorities knew that the applicant was in Canada. He considered the police
    statement given by Ms. Boros former manager on September 23, 1998. The
    Minister wrote:

The Romanian authorities were clearly aware of Ms. Boros
    residence in Canada as of 2008. The evidence presented in the ROC is
    unequivocal on that point.
The brief speculation of Ms. Ioan in her
    statement to police investigators in 1998 is not evidence that the government
    of Romania had knowledge of Ms. Boros residence in Canada.


There is no other evidence to suggest that Romania was aware of
    Ms. Boros location before 2008. [Emphasis added.]

[23]

This
    passage conveys two ideas. First, Ms. Ioans statement amounted to mere
    speculation about Ms. Boros whereabouts. Second, even though Ms. Ioans
    statement was given to a police officer investigating criminal offences, it was
    not evidence that the government of Romania knew of her whereabouts.

[24]

We
    accept Ms. Greenspans submission that the Minister acted unreasonably in purporting
    to resolve this issue without making inquiries of Romanian officials concerning
    knowledge of Ms. Boros whereabouts. It was never properly explained why Ms.
    Ioans statement to the police was not some evidence that, as early as September
    23, 1998, Romanian officials had knowledge that Ms. Boros had travelled to
    Canada.

[25]

Given
    Ms. Ioans said that she assumed that Ms. Boros was in Canada, it was not
    unfair to characterize this information as speculative in nature. Ms. Rice for
    the Respondent also argues that Ms. Ioans statement was inaccurate because Ms.
    Boros was not in Canada at the time. That is true  Ms. Boros did not land in
    Canada until the next day. While the statement was technically inaccurate, it
    was remarkably prescient.

[26]

There
    is no indication that Romanian authorities took any steps to follow up on this
    information. While it would appear that the Interpol notification in 2008
    prompted the Romanian government to make its extradition request a few months
    later, this does not speak to the question of whether any efforts were made to
    follow up on the very helpful Ioan statement, made 10 years earlier. More
    importantly, the Minister appears to have made no inquiries on this issue. This
    type of information could not reasonably be obtained by Ms. Boros. Out of fairness
    to Ms. Boros, and the integrity of the process, it is incumbent upon the
    Minister to make inquiries and get to the bottom of this troubling issue.

[27]

In
    reaching this conclusion, we note that the Minister had his officials make
    inquiries of the Romanian authorities about numerous other matters (e.g., the
    conditions of confinement to which Ms. Boros will be subjected; her access to
    medical treatment while incarcerated; whether Ms. Boros would be at risk of
    persecution in Romania; whether Ms. Boros has the right to request a re-trial
    if returned to Romania; and whether the enforcement of Ms. Boros prison
    sentence is time-barred). Yet, there was no effort to address the dispute
    discussed above. The failure to make this inquiry undermines the reasonableness
    of the Ministers decision.

[28]

In
    terms of the delay between Romanias request of December 4, 2008, and the
    issuance of the ATP on May 13, 2015, Ms. Boros submits that the Minister
    provided no meaningful explanation for the delay. She argues that the
    Ministers approach to this issue lacks transparency. Ms. Greenspan argues that
    the Minister did not properly explain the delay and merely parroted language
    from the Supreme Court of Canadas decision in
Mellino
.
We set
    out below the relevant paragraphs of
Mellino
and the Ministers
    letter:



Mellino
, at para. 23

Ministers letter



23. In assessing the issue, a court must not overlook
          that extradition proceedings must be approached with a view to
conform
          with Canada's international obligations
. The courts have on many
          occasions reiterated that the requirements and technicalities of the criminal
          law apply only to a limited extent in extradition proceedings. One cannot
          view delay resulting from the
complexity
involved in dealing with
          activities that reach across national boundaries and involve
different
          systems of law
and several levels of bureaucracies in the same way as
          that in local prosecutions. This is especially so when one considers that
          extradition proceedings are but a small part of the many and variegated
          responsibilities of diplomatic officials. It is interesting that the time
          schedule set forth in article XIV has been described as hectic and criticized
          as too onerous. [Citations omitted.]

Between December 4, 2008, and
          the issuance of the ATP in 2015, my officials worked with the Romanian
          authorities to prepare extradition request materials in English that
conform
          to Canadian legal requirements
. This delay is attributable to the
complex
,
          time-consuming, and expensive dialogue of treaty partners working together to
          overcome
differences in
language, resources and
legal systems
.
          Romania has a judge-led process for making extradition requests. The
          materials generated by this process, which are often lengthy as they are in
          this case, require translation. This process is often slow. Revisions and
          supplements to materials can be lengthy undertakings in light of the
          differences between Canadian and Romanian administrative approaches to
          extradition.



[29]

We
    are not persuaded that the Minister merely parroted
Mellino
as Ms.
    Boros claims. However, we are not satisfied that the Minister addressed this
    concern transparently. The above-quoted passage from the Ministers letter
    covers a long period of time, but sheds very little light on what happened. This
    general approach denies Ms. Boros the opportunity to understand why the process
    took so long. It also deprives this court of the ability to gauge the
    reasonableness of the Ministers decision in terms of whether his officials
    could have advanced this file more expeditiously and what efforts were made, if
    any, to encourage Romanian officials to act with diligence in responding to
    requests from its Canadian counterparts. Moreover, the 18-month delay between
    the issuance of the ATP and the summons is not explained. The combined Canadian
    delay of nearly 8 years is not addressed beyond an implicit general claim that
    these matters take a long time. In our view, this is inadequate.

[30]

The
    delay between Ms. Ioans statement of September 23, 1998 and the issuance of the
    summons on November 15, 2016  more than 18 years  has not been properly
    investigated, nor properly explained. In the circumstances, the surrender order
    cannot stand. On the existing record, we are unable to determine whether the
    decision to order Ms. Boros surrender was reasonable. More information is
    required before we can properly conduct this analysis.

Disposition

[31]

Accordingly,
    the application for judicial review is allowed and the case is referred back to
    the Minister for reconsideration in light of these reasons: see
Extradition
    Act
, 57(6).

[32]

We
    respectfully request that the Minister make inquiries of the Romanian
    authorities as to when its officials
first

became aware that
    Ms. Boros resided in Canada, especially in light of the police statement given
    by Ms. Ioan on September 23, 1998. After these inquiries are complete, it would
    be appropriate to disclose the results to Ms. Boros and permit her to make
    submissions.

[33]

We
    further direct the Minister to provide a detailed explanation for Canadas
    delay following the issuance of the ATP and leading up to the issuance of the
    summons.

G.R. Strathy C.J.O.

B.W. Miller J.A.

Gary Trotter J.A.


