



COURT OF APPEAL FOR ONTARIO

CITATION:  France v. Diab, 2014 ONCA 374

DATE:  20140515

DOCKET: C53812 and C55441

Hoy A.C.J.O., Blair and Rouleau 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

AND IN THE MATTER OF an application for judicial review
    pursuant to s. 57 of the
Extradition Act
, S.C. 1999, c. 18

BETWEEN

The Attorney General of Canada on Behalf of the
    Republic of France and the Minister of Justice

(Respondents/Respondents)

and

Hassan Naim Diab

(Applicant/Appellant)

Marlys Edwardh, Daniel Sheppard and Donald Bayne, for
    the applicant/appellant

Janet Henchey and Jeffrey Johnston, for the respondents

Lorne Waldman, for the intervener Amnesty International

Brendan van Niejenhuis and Justin Safayeni, for the
    intervener the British Columbia Civil Liberties Association

Anil Kapoor and Lindsay Daviau, for the intervener
    Canadian Civil Liberties Association

Heard: November 4-5, 2013

On appeal from the committal order of Justice Robert L.
    Maranger of the Superior Court of Justice, dated June 6, 2011, reported at 2011
    ONSC 337, 236 C.R.R. (2d) 248, and on application for judicial review of the
    surrender order of the Minister of Justice, dated April 4, 2012.

By the Court:

Table
    of Contents

I.

OVERVIEW............................................................................................ 4

II.

FACTUAL
    BACKGROUND
.
9

(1)

The
    Paris bombing
. 9

(2)

The
    investigation
. 9

(3)

The
    person sought
10

III.     APPEAL FROM
    COMMITTAL   ..11



A. COMMITTAL FOR EXTRADITION:  AN OVERVIEW....11

(1)

General
    Principles
. 11

(2)

The
    statutory framework
.
12

(3)

The
    governing jurisprudence
.
13

(i)
Ferras
..13

(ii)
Thomlison
and
Anderson
.15

B.  THE COMMITTAL
    HEARING...18

(1)

The
    evidence against the appellant...18

(2)

The
    Bisotti report
19

(3)

The
    critiques of the Bisotti report
21

(4)

The
    parties submissions on whether the Bisotti report was manifestly unreliable
23

(5)

The
    extradition judges decision that the Bisotti report is not manifestly
    unreliable
24

(6)

The
    extradition judges decision on the test for committal
29

C.  MOTION TO ADDUCE FRESH EVIDENCE...32

(1)

Background
. 32

(2)

The
    parties submissions
.
34

(3)

Analysis
. 35

D.

ISSUES
    ON THE COMMITTAL APPEAL
.
36

E.

ANALYSIS
    OF ISSUES ON THE COMMITTAL APPEAL...38

(1)  Threshold reliability in
Mohan
and
Abbey
versus manifest unreliability in the extradition context38

(2)  Misapprehension of the
    evidence.42

(3)  The committal judge imposed
    too high a standard44

(4)

The
    test for committal47

IV.  THE JUDICIAL REVIEW APPLICATION53

A.

DID
    THE MINISTER HAVE JURISDICTION?
.
54

(1)

The
    statutory authority
.
54

(2)

The
    standard of review
.
56

(3)

The
    French system
.. 60

(4)

What
    does for the purpose of prosecuting the person  pour subir son procès 
    mean?
62

(5)

Is
    the Ministers interpretation of s. 3 inconsistent with the French version of
    the statute?
67

(6)

Did
    the Minister err in accepting the French authorities interpretation of the
    procedure under French law?
.
72

B.

TRIAL
    FAIRNESS ISSUES (EVIDENCE BASED ON INTELLIGENCE REPORTS AND/OR POTENTIALLY
    TAINTED BY TORTURE)
75

(1)

The
    test for refusing surrender and the standard of review
.
76

(2)

Use
    of intelligence-based evidence...77

(3)

Dealing with the potential use of
    torture-derived evidence in the surrender context
85

(i)   The appellant's position...85

(ii)  A two-step inquiry and the rationale for it.86

(iii)  "Plausible connection"93

(iv) "Real risk"..94

(v)  The application of the two-stage inquiry in this
    case104

V.    DISPOSITION..110

I.

OVERVIEW

[1]

The appellant, Hassan Diab, is wanted in France for his alleged role in
    a 1980 bombing outside a Paris synagogue that killed four people and injured 40
    others. Following a long and sometimes acrimonious hearing, in June 2011 the
    extradition judge committed the appellant to await surrender. In April 2012,
    the Minister of Justice ordered the appellants surrender to French
    authorities. The appellant appeals from his committal and seeks judicial review
    of the Ministers decision to surrender.

[2]

The case against the appellant is circumstantial. In his reasons on the
    committal order, the extradition judge held that four of the five pieces of
    evidence proffered by the Attorney General on behalf of France were
    insufficient alone to justify committing the appellant for extradition. The
    remaining piece of evidence, a handwriting analysis that linked the appellant
    to the suspected bomber, was dismissed by the appellants experts as
    methodologically flawed and unreliable. While the extradition judge agreed that
    the French experts conclusions were suspect, he concluded that her evidence
    should not be completely rejected as manifestly unreliable and found it tipped
    the scale in favour of committal.

[3]

On appeal, the appellant submits that the extradition judge took too narrow
    a view of his role in assessing the reliability of the requesting states
    evidence.  The appellant submits that, in doing so, the extradition judge
    misinterpreted the leading case on the test for committal,
United States of
    America v. Ferras
;
United
    States of America v. Latty
, 2006 SCC 33, [2006] 2 S.C.R. 77, and the
    decisions from this court that followed.

[4]

Ferras
instructs that, while the evidence presented by a
    requesting state at an extradition hearing is presumptively reliable, s. 7 of
    the
Charter of Rights and Freedoms
requires that the person sought be
    given a meaningful opportunity to rebut that presumption. The extradition judge
    cannot act as a rubber stamp:
Ferras
, at para. 25. This may require the
    court to engage in a limited weighing of the evidence presented by a requesting
    state to decide whether committal is justified:
Ferras
, at para. 46.

[5]

In light of this, the appellant argues, the extradition judge erred in
    holding that the weaknesses in the French handwriting report were matters of
    ultimate reliability for the French judge to assess. The appellant also seeks
    leave to introduce fresh evidence to establish that, contrary to the
    extradition judges suggestion, there is no unique French methodology for
    handwriting analysis that could explain what he says is the French experts
    markedly divergent approach.

[6]

The Canadian Civil Liberties Association (CCLA) intervenes in support
    of the appellants position. It submits that the extradition judges interpretation
    of
Ferras
yields not only an incorrect, but also an unconstitutional,
    result.

[7]

Before the Minister, the appellant resisted surrender on grounds that
    implicitly impugned Frances inquisitorial system of justice. He argued that
    the Minister lacked jurisdiction to surrender him to France, because France had
    yet to make a decision that he would stand trial. The Minister rejected his
    submissions as inconsistent with the principle of comity.

[8]

The appellant also argued that it would be unjust, oppressive and
    contrary to the
Charter
for the Minister to extradite him on the basis
    of unsourced intelligence and/or evidence that was plausibly connected to the
    use of torture. The Minister rejected the appellants proposed plausible
    connection standard, but, in any event, concluded that the appellant had
    failed to establish such a connection. He also noted that, as a party to the
Convention
    Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
,
    10 December 1984, 1465 U.N.T.S. 85 (
Convention Against Torture
),
    France has a duty to ensure that evidence derived from torture is not used in
    any legal proceedings. If the appellant has concerns about the provenance of
    the intelligence used to build the case against him, the Minister concluded, he
    may raise them before the French courts, the European Court of Human Rights
    (ECHR) and the United Nations Committee Against Torture.

[9]

On the judicial review application, the appellant submits that the
    Minister misunderstood his submissions, considered irrelevant factors and
    misapplied the law to reach an unreasonable conclusion.

[10]

Without
    taking a position on the outcome, the intervener Amnesty International submits
    that the Minister must refuse extradition where there is a real risk that
    evidence obtained by torture would be admitted at trial. The intervener the
    British Columbia Civil Liberties Association (BCCLA) submits that if the
    person sought can make out a plausible connection between the evidence
    against him and the use of torture, the Minister must either rebut that
    connection based on specific information or else satisfy himself or herself that
    the evidence will not be used against the person sought.

[11]

For
    the reasons that follow, we dismiss the appeal and the application for judicial
    review.

[12]

In
    our view, the extradition judge did not err in his approach in finding that the
    French experts handwriting analysis was not manifestly unreliable. We conclude
    that the appellant has received the meaningful judicial determination that
Ferras

requires.

[13]

The
    Ministers surrender decision was reasonable. In our view, the Minister had
    jurisdiction to order the appellants surrender even though a trial in France
    is not a certainty. On our reading of the relevant authorities, an extradition
    request must be grounded in the anticipation that there will be a trial in the
    requesting state. In other words, a process or prosecution must have been
    initiated that will, if not discontinued, lead to a trial. A trial of that
    person, however, need not be inevitable.

[14]

We
    agree with the appellant and the interveners that a two-step approach is called
    for when a person facing surrender alleges that the case against him relies on
    evidence that is derived from torture. First, the person facing surrender must
    establish a plausible connection between the challenged evidence and the use
    of torture. This is a relatively low threshold. If that threshold is met, then
    the Minister is called upon to make further inquiries to determine whether
    there is a real risk that torture-derived evidence will be used in the
    proposed foreign proceeding. If the Minister concludes that there is a real
    risk that torture derived evidence will be used in the proposed foreign
    proceeding, surrender should generally be refused.

[15]

Here,
    while the Minister essentially conflated the two steps of the inquiry and did
    not expressly use the real risk language, it is apparent from the assurances
    he sought and the conclusions he reached that he was satisfied this standard
    had been met. That finding is well supported by the record.

II.

FACTUAL BACKGROUND

(1)

The Paris bombing

[16]

Early
    in the evening of October 3, 1980, a bomb exploded outside a synagogue at 24
    Rue Copernic in Paris, France. The bomb was apparently timed to go off as
    worshippers celebrating the holiday of Simchat Torah would be streaming out of
    the synagogue. Fortunately services ran late and the crowd on the street was
    smaller than it might otherwise have been. Still, the impact was devastating:
    four people were killed and dozens more were wounded.

(2)

The investigation

[17]

The
    ensuing investigation led police to believe that the bomb had been planted on a
    parked motorcycle by a man posing under the pseudonym Alexander Panadriyu.
    Panadriyu crossed into France from Spain on a fake Cypriot passport and checked
    into the Celtic Hotel near Rue Copernic on September 22, 1980. In what would
    prove to be the key piece of evidence in the case, Panadriyu signed the hotel
    registration card. He wrote five words, four in block letters: PANADRIYU,
    ALEXANDER, LANARCA, technician, CYPRUS. There was also a date written on the
    registration card. Composite sketches of Panadriyu were made based on physical
    descriptions given by various people who saw him at the hotel and at the shop
    where he bought the motorcycle used in the attack.

[18]

In
    the course of the investigation, detectives discovered that Panadriyu had been
    detained a few days before the bombing for stealing a pair of pliers. Panadriyu
    signed a police report prior to being released. He was not photographed.

[19]

In
    1982, a judicial inquiry into the Paris bombing received a report from the French
    intelligence service stating that the buyer of the motorcycle was a man named
    Hassan, and that he acted on behalf of a splinter group of the Popular Front
    for the Liberation of Palestine (PFLP).

[20]

The
    investigation lay dormant for many years. Then in 1999, the French intelligence
    service passed on information from an unnamed source which identified several
    people involved in the bombing. The bomber was identified as Hassan Diab.

[21]

After
    further investigation, in 2008 France requested Mr. Diabs surrender to face
    charges of murder, attempted murder and mischief. In 2009, Canada issued an
    Authority to Proceed.

(3)

The person sought

[22]

Hassan
    Diab was born in Lebanon on November 20, 1953. He arrived in the United States
    in 1987 and obtained a PhD in sociology from Syracuse University in New York. He
    became a Canadian citizen in 2006. At the time of his arrest, Mr. Diab held
    contract positions as a lecturer at Carleton University and the University of
    Ottawa. He has no prior criminal record. He has the unrelenting support of many
    of his friends and colleagues from Carleton.

III.

APPEAL FROM COMMITTAL

A.

COMMITTAL FOR EXTRADITION:
    AN OVERVIEW

(1)     General
    principles

[23]

As
    this court observed in
United States of America v. Yang
(2001), 56
    O.R. (3d) 52, at para. 31, [t]here is no single universal model for
    extradition in all countries or even in the same country.

[24]

On
    the request of any of more than eighty states or other entities  ranging from
    the United States to Haiti, Tonga and Zimbabwe to the International Criminal
    Court  a person may be extradited from Canada to be prosecuted or sentenced.
    Extradition must be in accordance with the
Extradition Act
, S.C. 1999,
    c. 18 (Act), and the relevant extradition agreement. Under the
Act,
extradition can only be sought for
    serious offences  generally ones punishable in Canada by imprisonment for two
    or more years.

[25]

The
    provisions of the extradition agreements vary. Some date back to the nineteenth
    century and were entered into with colonial powers. Others are more recent and
    reflect Canadas modern international relations.

[26]

The
    request in this case was made by the Republic of France pursuant to a treaty
    entered into in 1989:
Extradition Treaty between the Government of Canada
    and the Government of the Republic of France
, 17 November 1988, Can. T.S.
    1989 No. 38. Article 3 of that treaty provides that Canada and France shall not
    be bound to extradite [their] own nationals. Nationality shall be determined as
    of the date of the offence for which extradition is requested.

[27]

The
    appellant was not a Canadian national in 1980, when the alleged offence for
    which extradition is sought occurred. Accordingly, subject to the provisions of
    the
Act
and the other
    provisions of the treaty, Canada is bound to extradite him.

(2)

The statutory framework


[28]

Section
    29(1)(a) of the Act

provides:

A judge shall order the committal of the person into custody to
    await surrender if in the case of a person sought for prosecution, there is
    evidence admissible under this Act of conduct that, had it occurred in Canada,
    would
justify committal
for
    trial in Canada.

[29]

Evidence
    at an extradition hearing is proffered by way of a record of the case filed
    by the requesting state. Section 32 of the Act provides that evidence that
    would not otherwise be admissible under Canadian law is admissible at an
    extradition hearing if the contents of the documents contained in a record of
    the case are certified under s. 33(3).

[30]

That
    section provides:

A record of the case may not be admitted unless

(a) in the case of a person sought for the purpose of
    prosecution, a judicial or prosecuting authority of the extradition partner
    certifies that the evidence summarized or contained in the record of the case
    is available for trial and

(i) is sufficient under the law of
    the extradition partner to justify prosecution, or

(ii) was gathered according to the
    law of the extradition partner.

[31]

In
    this case, the French
juge dinstruction
certified that the evidence
    in the record of the case was available for trial and was gathered according to
    French law. He did not certify that the evidence summarized or contained in the
    record of the case was sufficient under French law to justify prosecution.
[1]


(3)

The governing jurisprudence

(i)

Ferras

[32]

In
Ferras
,

McLachlin C.J. writing for a unanimous Supreme Court
    held, at para. 46, that the direction in s. 29(1) that the extradition judge
    must decide if there is evidence that would justify committal requires the
    judge to assess whether admissible evidence
shows the justice or rightness

in committing a person for extradition (emphasis in original). If a judge
    on an extradition hearing concludes that the evidence is manifestly unreliable,
    the judge should not order extradition under s. 29(1): at para. 40. Section 7
    of the
Charter

demands that the extradition judge have the
    discretion to refuse committal on insufficient evidence: at paras. 41-43.

[33]

Ferras
reversed the pre-
Charter
case of
United States of America v.
    Shephard
, [1977] 2 S.C.R. 1067, where a majority of the Supreme Court held
    that an extradition judge must commit a person for surrender if there is
any
evidence on all the elements of the offence, no matter how suspect or dubious.

[34]

Chief
    Justice McLachlin set out the test for committal under s. 29(1), at para. 46:

It is not enough for evidence to merely exist on each element
    of the crime. The evidence must be demonstrably able to be used by a
    reasonable, properly instructed jury to reach a verdict of guilty.  If the
    evidence is incapable of demonstrating this sufficiency for committal, then it
    cannot justify committal.  The evidence need not convince an extradition
    judge that a person sought is guilty of the alleged crimes.  That
    assessment remains for the trial court in the foreign state.  However, it
    must establish a case that
could go to trial
in Canada.  This may
    require the extradition judge to engage in limited weighing of the evidence to
    determine, not ultimate guilt, but sufficiency of evidence for committal to
    trial. [Emphasis in original.]

[35]

The
    Chief Justice proceeded to explain that, following from principles of
    international comity, certification under s. 33(3)(a) raises a presumption that
    the evidence in a record of the case is reliable. Certification, she held,
    is the indicium of reliability that Parliament has prescribed for evidence in
    these circumstances. Unless challenged, certification establishes reliability:
    at para. 52. However, the person sought may challenge the sufficiency of the
    case, including the threshold reliability of certified evidence.

[36]

The
    Chief Justice set out the procedure to be followed, at para. 54:

Challenging the justification
    for committal may involve adducing evidence or making arguments on whether the
    evidence could be believed by a reasonable jury.  Where such evidence is
    adduced or such arguments are raised, an extradition judge may engage in a
    limited weighing of evidence to determine whether there is a plausible
    case.

The ultimate assessment of reliability is
    still left for the trial where guilt and innocence are at issue.  However,
    the extradition judge looks at the whole of the evidence presented at the
    extradition hearing and determines whether it discloses a case on which a jury
    could convict.  If the evidence is so defective or appears so unreliable
    that the judge concludes it would be
dangerous or unsafe to convict
,
    then the case should not go to a jury and is therefore not sufficient to meet
    the test for committal.

[Emphasis
    added.]

(ii)

Thomlison
and
Anderson

[37]

United
    States of America v. Thomlison
, 2007 ONCA 42, 84 O.R. (3d) 161, leave to
    appeal refused, [2007] S.C.C.A. No. 179, and
United States of America v.
    Anderson
, 2007 ONCA 84, 85 O.R. (3d) 380, leave to appeal refused, 2007
    S.C.C.A. No. 159, released within weeks of each other, were the first decisions
    from this court to interpret and apply the Supreme Courts decision in
Ferras
.

In both cases, the Court observed that
Ferras

exposed a
    tension between the purpose of extradition proceedings and the demands of the
Charter
.
    On the one hand, extradition hearings are meant to be expeditious and to
    facilitate prompt compliance with Canadas treaty obligations:
Anderson
,
    at para. 42;
United States of America v. Dynar
, [1997] 2 S.C.R. 462,
    at para. 122. On the other hand, s. 7 of the
Charter

requires
    that the person sought must be able to challenge the case against him through a
    meaningful judicial process:
Ferras
, at para. 26.

[38]

Accepting
    that
Ferras

empowered extradition judges to assess the quality
    of the evidence put forth by the requesting state to justify committal, the
    question became, as Moldaver J.A. put it in
Thomlison
, at para. 6: [
T
]
o what extent
can extradition
    judges now weigh the evidence in deciding whether the test for committal has
    been met? (emphasis in original).

[39]

He
    answered, at para. 45:

Unlike the situation that existed post
Shephard
,
Ferras
now authorizes extradition judges to assess the availability and quality of the
    evidence that can legitimately be included in the some evidence basket for
    sufficiency purposes. In my view, that enables them to discard evidence that is
    not realistically available for trial and/or
evidence that is manifestly
    unreliable, i.e. evidence upon which it would clearly be dangerous or unsafe to
    convict.
It does not allow extradition judges to refuse to commit where
    there is available and reliable evidence in the some evidence basket upon
    which a reasonable jury, properly instructed, could convict. [Emphasis added.]

[40]

In
Anderson
, the record of the case included a statement by a
    co-conspirator seeking a favourable bargain with the prosecuting authorities.
    Counsel for the person sought did not argue that the obvious frailties in the
    co-conspirators evidence would justify giving the statement no weight. Rather,
    he argued he should have been able to call the co-conspirator at the
    extradition hearing. He submitted that had he done so, he may have succeeded in
    impeaching the co-conspirators credibility or the reliability of his
    statement. Justice Doherty concluded that the extradition judge correctly held
    that the co-conspirator could not be called as a witness.

[41]

He
    elaborated, at para. 28:

Ferras
,
supra
,

does not envision weighing
    competing inferences that may arise from the evidence  [or deciding] whether a
    witness is credible or his or her evidence is reliable. There is no power to
    deny extradition in cases that appear to the extradition judge to be weak or
    unlikely to succeed at trial.

[42]

Justice
    Doherty described the scenarios in which an extradition judge might reject
    evidence as insufficient to justify committal, at para. 30:

Evidence may be rendered so defective or so unreliable as
    to warrant disregarding it due to problems inherent in the evidence itself, problems
    that undermine the credibility or reliability of the source of the evidence, or
    a combination of these two factors. I would stress, however, that it is only
    where the concerns with respect to the reliability of the evidence, whatever
    the source or sources, are sufficiently powerful to justify the complete
    rejection of the evidence, that these concerns become germane to the s.
    29(1)(a) inquiry.

[43]

Justice
    Dohertys explanation that evidence is manifestly unreliable where the concerns
    as to its reliability justify its complete rejection is not a new one. It is
    rooted in the dissenting reasons of Spence J. in
Shephard
, which were
    essentially adopted by the Supreme Court in
Ferras
.
At p. 1076
    of
Shephard
, Spence J. endorsed the extradition judges description of
    what would constitute manifestly unreliable evidence:

A finding that evidence is manifestly unreliable or dubious
    does, of course, necessarily involve some sort of weighing process, not,
    however, for the purpose of determining whether such evidence proves the
    charge but rather for the purpose of determining whether it has
any weight
    at all
which could prove the charge. [Emphasis added.]

B.

THE COMMITTAL HEARING

(1)

The evidence against the appellant

[44]

The
    record of the case presented to the extradition judge relied on five pieces of
    evidence
[2]
to connect the appellant to the Paris bombing: (1) the appellants Lebanese passport
    dated 1980, with stamps indicating he entered Spain shortly before the bombing
    and left shortly after; (2) evidence of his membership in the PFLP; (3)
    eyewitness descriptions of Panadriyu; (4) composite sketches of Panadriyu that
    bore some resemblance to the appellant; and (5) an expert analysis report by Mme
    Anne Bisotti that compared the appellants handwriting to Panadriyus writing and
    concluded that there was a strong presumption that the appellant was the
    author of the hotel registration card  (the Bisotti report).

[45]

The
    extradition judge held that the first four pieces of evidence, whether taken
    individually or viewed as a whole, were insufficient to justify committing the
    appellant for extradition. At best, the extradition judge explained, they
    create a certain degree of suspicion concerning his involvement in the
    terrorist bombing: at para. 188. That left the Bisotti report.

(2)

The Bisotti report


[46]

The
    Bisotti report was one of three handwriting analyses contained in the record of
    the case. The first two were prepared by handwriting comparison experts Mme
    Evelyne Marganne and Mme Dominique Barbe-Prot. These reports compared the
    writing on the hotel registration card signed by the suspected bomber Panadriyu
    to samples of what were supposedly the appellants writing from his days as a
    graduate student at Syracuse University. Both reports concluded that the
    appellant was likely the author of the hotel registration card.

[47]

In
    late 2009, several months before the start of the committal hearing, the
    appellant brought an application to introduce evidence to establish that the
    Marganne and Barbe-Prot reports were manifestly unreliable. The appellant
    sought to call evidence from four people whom the extradition judge described
    as arguably among the worlds leading experts in the field of handwriting analysis:
    Brian Lindblom, John Paul Osborn, Robert Radley and Dan Purdy.

[48]

All
    of these experts were extremely critical of the French experts methodology.
    Most importantly, they all concluded that the Marganne and Barbe-Prot reports were
    completely unreliable because some of the handwriting samples used for
    comparison were not, in fact, written by the appellant. They were written by
    his then-wife, Nawal Copty. The extradition judge allowed all four expert
    reports to be filed and permitted two of the four experts to be called.

[49]

Five
    months later, France withdrew the Marganne and Barbe-Prot reports from the record
    of the case and replaced them with the Bisotti report. Again the appellant
    sought to introduce evidence to challenge the reliability of the handwriting
    analysis. The extradition judge acknowledged the danger that doing so would
    transform the extradition proceeding into a criminal trial by impermissibly
    weighing competing inferences derived from expert evidence. He explained: The
Extradition Act
legislates that the Bisotti report is admissible and
    presumptively reliable; I am not allowed to weigh its ultimate reliability. On
    the other hand, he held that the line here between expert opinion evidence
    being used to support a competing inference or as evidence demonstrating
    manifest unreliability is blurred. The extradition judge allowed the appellant
    to introduce technical reviews of the Bisotti report from Mr. Lindblom, Mr.
    Osborn and Mr. Radley.

[50]

As
    the extradition judge recounted, at para. 91 of the committal decision, Mme
    Bisotti is the head of the documents, handwriting and traces sections of the
    laboratory of the police scientifique of Paris. She has been an expert in
    handwriting analysis since 1993 and has been consulted on hundreds of cases.
    Her stated mandate was to opine on whether the appellant is certainly or may
    be (in which case, try to indicate a degree of probability) the writer of the
    five words and date contained on the hotel registration card, and the signature
    at the bottom of the police report: at para. 91.

[51]

Mme
    Bisotti compared the hotel registration card and the signature on the police
    report to exemplars of the appellants handwriting from Syracuse University and
    pages taken from the appellants American immigration file. Those exemplars
    dated from between 1994 and 1998. Applying what she described as the ENFHEX
    (European Network of Forensic Handwriting Experts) methodology, she concluded
    that there was a strong presumption that the appellant was the author of the
    five words on the hotel registration card, a weak presumption that he was the
    author of the date on the hotel registration card and a presumption that he
    was the author of the signature on the police report.

(3)

The critiques of the Bisotti report

[52]

The
    appellants experts attacked the Bisotti report as completely methodologically
    unsound. As one example, they said Mme Bisotti purported to establish
    authorship of the hotel registration card in part by counting the similarities
    between the two sets of handwriting. They all maintained that in handwriting
    identification it is the
differences
that establish identification.
    Equally problematic, they said, Mme Bisotti dismissed the differences between
    the two sets of handwriting as natural variations without any evidentiary
    basis for doing so.

[53]

The
    appellants experts were strongly of the view that neither the five words on
    the Celtic Hotel registration card nor the exemplars of the appellants
    handwriting provided a sufficient basis for proper analysis. The hotel
    registration card, they said, provided such a small sample of the bombers
    handwriting as to be basically worthless. This was especially so because
    Panadriyu printed in block letters, presumably in an effort to disguise his natural
    handwriting. Meanwhile, the university papers and the pages from the
    appellants immigration file  dating from the 1990s  were of limited use
    because they were written so long after the subject documents.

[54]

The
    appellants experts were also fiercely critical of Mme Bisottis mandate,
    which they interpreted to preclude the finding that Hassan Diab was
not
the author of the hotel registration card. In addition to arguing that the
    report was inherently biased, the appellants experts also challenged Mme Bisottis
    qualifications. As we discuss below, the appellant abandoned those arguments on
    appeal.

[55]

Each
    of the appellants experts summarized their opinions on the merits of the
    Bisotti report in extremely harsh terms. In short, they all opined that no competent
    handwriting analyst would have reached the same conclusions as Mme Bisotti.

(4)

The parties submissions on whether the Bisotti report was manifestly
    unreliable


[56]

In
    light of the concerns raised about the Bisotti report, the appellant argued
    that it could not meet the standard for threshold admissibility as described in
R. v. Mohan
, [1994] 2 S.C.R. 9, and
R. v. Abbey
, 2009 ONCA
    624, 97 O.R. (3d) 330, leave to appeal refused, [2010] S.C.C.A. No. 125, and addressed
    in Justice Goudges
Report of the Inquiry into Pediatric Forensic Pathology
    in Ontario

(Ontario: Queens Printer, 2008) (Goudge Report). Those
    principles include:

·

The trial judge is the gatekeeper who must vigilantly control the
    admission of expert evidence;

·

The expert must be adequately qualified and scrupulously
    impartial; and

·

Threshold reliability includes careful consideration of the
    methodology used by a given expert.

[57]

The extradition judge described the appellants argument this
    way, at para. 96: [I]
f Ms. Bisotti's report would be found
    to lack threshold reliability in a Canadian court, then it should be considered
    manifestly unreliable evidence for the purposes of an extradition proceeding.

[58]

In
    response, the Attorney General on behalf of France submitted that the
    appellants evidence was simply evidence of competing inferences that went to
    ultimate, not threshold, reliability. The Attorney General noted that, by
    virtue of its certification under s. 33(3) of the Act, the Bisotti report was
    already presumptively reliable. The Attorney General submitted that threshold
    reliability was therefore established; manifest unreliability means evidence
    that is, or can be shown to be, totally unreliable.

(5)

The extradition judges decision that the Bisotti
    report is not manifestly unreliable


[59]

The
    extradition judge first ruled orally on this issue on February 18, 2011, before
    the conclusion of the extradition hearing. At that time, he provided an outline
    of his reasoning supporting his decision to reject the appellants application
    to exclude the Bisotti report from the record of the case and explained that
    his full reasons would be contained in his final written decision. In his oral
    reasons, the extradition judge described the issue before him as whether the
    Bisotti report should be excluded from the Record of the Case as manifestly
    unreliable, or as so defective that it would be dangerous to convict upon [it].

[60]

At
    the outset of his consideration of this issue in his written reasons, at para.
    80, the extradition judge cited the governing principle, taken from this
    courts decision in
United States of America v. Michaelov
, 2010 ONCA
    819, 264 C.C.C. (3d) 480, at para. 47, leave to appeal refused, [2011] S.C.C.A.
    No. 37: the only means available to rebut the presumption of threshold
    reliability is to demonstrate that the evidence is manifestly unreliable or
    so defective that it should be removed from consideration in deciding the
    issue of committal.  He rejected the appellants submission that the
Abbey

framework could be used to rebut the presumption of threshold reliability.
    He explained, at para. 101, that to accept the appellants submission would
    necessitate the imposition of Canadian standards of admissibility of expert
    opinion evidence on the requesting state. The extradition judge held that
    doing so would offend the Act. That statute has its own specific rules of
    evidence that permit the admission of evidence even if it would not be admitted
    under Canadian law.

[61]

As
    to the substance of the appellants arguments, the extradition judge wrote that
    the report has been shown to be based on some questionable methods and on an
    analysis that seems very problematic and is susceptible to a great deal of
    criticism and attack: at paras. 118, 120. He described the report as
    convoluted, very confusing, with conclusions that are suspect: at para. 121.

[62]

He
    found that Mme Bisottis comparison of the appellants signature with the
    illegible fictitious signature on the police report seemed illogical. And he
    observed what he considered an important difference between the samples of the
    appellants handwriting relied on by Mme Bisotti and the letters on the hotel
    registration card that she did not discuss in her report. Significantly, on the
    other hand, the extradition judge agreed that what Mme Bisotti described as an
    important identifier  the slopes and slants within words  clearly existed
    in the samples and the hotel registration card.

[63]

The
    extradition judge concluded that the Bisotti report was not manifestly
    unreliable. Accepting the Attorney Generals submissions, he explained that
    information contained in a record of the case is presumptively reliable for
    purposes of committal. While the appellants experts had exposed major weaknesses
    in the Bisotti report, the extradition judge concluded that choosing between
    the experts competing views was a task for the trier of fact and a question of
    ultimate, not threshold, reliability: at paras. 122-23.

[64]

In
    coming to this conclusion, the extradition judge relied on this courts
    decisions in
Thomlison
,
Anderson
, and
Michaelov
.

[65]

The
    extradition judge held that the parties opposing views of Mme Bisottis objectivity
    raised competing inferences. While he saw merit in the appellants experts criticisms,
    the extradition judge determined that to accept those criticisms would require
    him to weigh competing inferences and perform the work of the trier of fact.
    It is the stuff of a trial, he concluded, at para. 106.

[66]

With
    regard to methodology, the extradition judge wondered (as he had in his earlier
    oral ruling) whether the markedly divergent opinions between the French experts
    and the appellants experts (from Canada, the U.S. and the U.K.) were
    indicative of a unique French methodology. In remarks that form the basis of
    the appellants fresh evidence application, he explained, at para. 112:

While I found that the three experts evidence on appropriate
    methodology was convincing in that it appeared to be the logical approach to
    comparing handwriting, I cannot necessarily conclude that their criticisms
    respecting methodology related exclusively to the report of Ms. Bisotti. There
    were a total of three reports submitted in the area of handwriting comparison
    by three different French experts: Ms. Barbe-Prot, Ms. Marganne and Ms.
    Bisotti. The Diab experts criticized the methodology employed by all three. It
    seems to me that this leaves room for the possibility that the Republic of
    France does have a different approach/methodology in relationship to
    handwriting comparison analysis.

[67]

And,
    at para. 116, he explained what manifest unreliability means in the context
    of an extradition case:

It seems to me that manifest unreliability in the context of an
    extradition case would mean evidence that is so devoid of reliability that it
    should be rejected out of hand when considering the issue of committal. It is
    evidence that is so unreliable that it is not worthy of consideration by the
    trier of fact. A high threshold attaches to the categorization of evidence that
    may be called manifestly unreliable.

[68]

The
    extradition judge noted that handwriting comparison is a soft science that
    Canadian courts have long recognized as an admissible form of expert evidence. He
    continued, at paras. 122 and 123:

The bottom line is that very strong criticism, coupled with
    competing inferences from other experts, does not render another experts
    opinion manifestly unreliable in the context of an extradition.



The complaints levied against the report and its findings, when
    all is said and done, go the ultimate reliability of the opinion, which is a
    matter for trial.

[69]

The
    extradition judge explained what, in his view, the appellant would have had to
    have shown to establish that the Bisotti report was manifestly unreliable, at
    para. 124:

If the only available conclusion
    derived from the [record of the case] and the evidence from the three experts
    presented on behalf of the person sought was that the French expert was biased,
    unqualified, and used improper methodology in every respect, then a finding of
    manifest unreliability would be possible. However, the evidence heard at this
    hearing did not support such an unequivocal finding.

[70]

The
    extradition judge then gave an example of the type of evidence that could have
    led to a finding of manifest unreliability, at para. 125:

[P]erhaps the clearest way to
    describe manifestly unreliable evidence is to provide an example. In truth at
    one point in time it may have existed in this case. This would be in relation
    to the first two handwriting reports [i.e. the Marganne and Barbe-Prot reports].
    If I had found as a fact that these two experts had used the wrong known
    handwriting to arrive at their conclusions respecting the authorship of the
    hotel card i.e. (Nawal Coptys instead of Hassan Diabs) that would have
    amounted to, as the Court in

Michaelov
,

supra
, put it

problems inherent in the evidence,
    problems that undermine the credibility of the source of the evidence or a
    combination of both factors that render the evidence manifestly unreliable.

(6)

The extradition judges decision on the test for committal

[71]

Having concluded that the Bisotti report
    could not be dismissed as manifestly unreliable, the extradition judge
    proceeded to determine whether there was sufficient evidence to justify the
    appellants committal.

[72]

The
    parties differed on whether, if the extradition judge found the Bisotti report was
    not manifestly unreliable,
Ferras
permitted the extradition judge to
    nonetheless weigh the Bisotti report and the other evidence in the record of
    the case in determining whether or not to commit the appellant for extradition.

[73]

The
    appellant submitted that after completing his manifest unreliability inquiry, the
    extradition judge should proceed in the same way as an appellate court
    reviewing an allegation of an unreasonable verdict. In other words, the
    extradition judge should then ask whether a properly instructed jury, acting
    judicially, could reasonably convict on the evidence: see
R. v. Yebes
,
    [1987] 2 S.C.R. 168. Or, as the extradition judge expressed the appellants
    position, could the evidence or the lack of evidence lead to an unreasonable
    verdict?

[74]

The
    extradition judge rejected the appellants approach. In his view, this approach
    would necessarily require him to become engaged in the weighing of evidence
    when deciding whether or not to commit the person: at para 133. Guided by this
    courts decisions in
Thomlison
,
Anderson
and
Michaelov
,
    the extradition judge stated the test this way, at para. 139: Is there
    evidence in the [record of the case] that is available for trial and not
    manifestly unreliable, upon which a reasonable jury, properly instructed, could
    convict?

[75]

The
    extradition judge framed this as a two-stage process: first, the court
    determines whether the evidence in the record of the case is unavailable for
    trial or manifestly unreliable. This requires a limited weighting of the
    evidence. Second, the court considers the remainder of the evidence to
    determine whether to commit the person sought. At this second stage, the extradition
    judge held, the courts ability to weigh the evidence is limited to assessing
    whether the circumstantial evidence, if any, is reasonably capable of
    supporting the inferences that the requesting state seeks to have drawn. The
    court does not go further to consider whether it would conclude that the
    accused is guilty or to draw the factual inferences or assess credibility: at
    paras. 140-41.

[76]

The
    extradition judge held, at para. 142, that, on his reading,

[O]ur Court of Appeal does not contemplate the extradition
    judge analyzing or weighing the evidence that remains in the [record of the
    case] to determine whether or not it would be dangerous to convict upon that
    evidence. The only question to ask at this stage is whether a properly
    instructed jury acting reasonably could convict on that evidence.

[77]

Applying
    this test to the evidence in the record of the case, the extradition judge
    concluded that, whether taken individually or viewed as a whole, the passport, the
    evidence of the appellants membership in the PFLP, and the eyewitness
    descriptions and composite sketches would not be sufficient to justify
    committing the appellant. At best, he held, they create a certain degree of
    suspicion concerning the appellants involvement in the bombing: at para. 188.

[78]

The
    evidence that tips the scale in favour of committal, the extradition judge continued,
    is the handwriting comparison evidence. Once found to be reliable for purposes
    of extradition
i.e. not manifestly unreliable evidence, the
    question became whether a jury considering the handwriting evidence together
    with the other evidence in the [record of the case], could find as a fact that Mr.
    Diab was Alexander Panadriyu and thus one of the persons responsible for the
    bombing. The short answer is yes. Consequently, when all is said and done, a
    committal order is warranted: at para. 189.

[79]

While
    the extradition judge was of the view that the case presented by the Republic
    of France was weak, and the prospects of conviction in the context of a fair
    trial unlikely, he concluded at para. 195: They have presented a
prima
    facie
case against him which justifies his having to face a trial in that
    country.

C.

MOTION TO ADDUCE FRESH EVIDENCE

(1)

Background

[80]

More
    than two months after the extradition hearing was completed, and 12 days before
    the extradition judge was scheduled to render his committal decision, the
    appellant brought an application to adjourn the scheduled date for release of
    the extradition judges decision in order to perfect an application to re-open
    the hearing and call new evidence. The new evidence included recently sourced
    but not yet available expert evidence dealing with the methodology for handwriting
    comparison used in France. As discussed above, in an oral ruling dismissing the
    appellants application to have the Bisotti report excluded because it was
    manifestly unreliable, the extradition judge had pointed to the fact that none
    of the experts could comment on whether or not there is or isnt a different
    type of methodology used in the Republic of France. The appellant argued that
    the new evidence would impact on the extradition judges ruling that the
    Bisotti report was not manifestly unreliable.

[81]

The
    extradition judge denied the application. He concluded that the proposed new
    expert evidence would not change his ruling that the appellants expert
    evidence went to the ultimate reliability of the Bisotti report.

[82]

The
    appellant nonetheless proceeded to obtain the evidence of two further
    handwriting experts, Prof. Pierre Margot and Dr. Raymond Marquis. Although
    Swiss nationals, Prof. Margot and Dr. Marquis are familiar with forensic
    document examination in France. It is their evidence that the appellant now
    seeks leave to adduce as fresh evidence.

[83]

Their
    report makes clear that there is no different French method of handwriting
    analysis. Rather, the methodology for handwriting comparison is universal,
    ENFHEX recommendations correspond to this universal approach and French
    handwriting analysis is conducted in accordance with the ENFHEX guidelines. Like
    the appellants other experts, Prof. Margot and Dr. Marquis say that Mme
    Bisotti failed to adhere to this methodology.

[84]

However,
    their report also acknowledges that Mme Bisotti is recognized as one of the two
    major handwriting experts in France. And while the report takes issue with the
    leading nature of the questions that Mme Bisotti was required to answer, Dr. Marquis
    testified that he did not view Mme Bisotti as biased. Perhaps because of this,
    on appeal the appellant does not challenge the extradition judges conclusion that
    the issues of inherent bias and Mme Bisottis qualifications were matters for
    trial, and did not render the Bisotti report manifestly unreliable.

[85]

The
    appellant filed the Margot and Marquis report with the Minister as part of his
    submissions contesting surrender. Their report therefore forms part of the
    record before this court on the combined appeal and application for judicial
    review.

(2)

The parties submissions

[86]

The
    appellant does not argue that the extradition judge erred in refusing his
    request for a further adjournment to permit him to obtain further evidence.
    Rather, he brings this motion to admit the evidence subsequently obtained as
    fresh evidence. He submits that this proposed fresh evidence meets the four criteria
    in
Palmer v. The Queen
, [1980] 1 S.C.R. 759, for the admission of
    fresh evidence.

[87]

The
    only disputed criteria are whether the proposed evidence is fresh, and whether
    it is relevant. The appellant argues that the evidence could not have been
    adduced at the committal hearing because the notion of a unique French system
    was only raised by the Attorney Generals cross-examination of the appellants
    experts. The appellant also argues that the fresh evidence could reasonably
    have been expected to affect the result. He asserts that the extradition
    judges comment that evidence of this sort would not have changed his decision
    with respect to manifest unreliability was driven by the extradition judges
    mistaken imposition of too high a standard for manifest unreliability.

[88]

The
    Attorney General counters that the proposed fresh evidence does not meet the
    test for admitting fresh evidence on a committal appeal in extradition
    proceedings. It is not fresh; the appellant unsuccessfully applied to adjourn
    the date set by the extradition judge to render his decision to seek to tender
    this very evidence. And it is not relevant; like the appellants other expert
    evidence, it goes to the ultimate reliability of the Bisotti report.

(3)

Analysis

[89]

We
    agree with the Attorney General that the proposed fresh evidence does not meet
    the test for admission. The extradition judge considered what the appellant
    advised him was the substance of the proposed evidence and determined that such
    evidence would not affect his decision.

[90]

As
    the extradition judge said in his reasons dismissing the appellants
    application for an adjournment to gather Prof. Margot and Dr. Marquiss
    evidence, on the issue of reliability, I find it difficult to conceive that
    the French experts will be capable of being more critical than the experts
    already presented by the person sought over the course of approximately 30 days
    of court time.

[91]

It
    is also worth noting that the extradition judges decision dismissing the
    application for an adjournment was delivered just 11 days before he released
    his 195-paragraph committal decision. It is reasonable to presume that the
    extradition judges analysis was substantially advanced by that time and so he
    was in a position to know with certainty that the proposed new evidence would
    not alter his view that the reliability of the Bisotti report was a matter for
    trial.

[92]

The
    substance of the evidence of Prof. Margot and Dr. Marquis is as the appellant
    advised the extradition judge.  Concluding, as we do below, that the
    extradition judge correctly understood and applied the standard for assessing
    manifest unreliability, such evidence could not reasonably have affected the
    result. It follows that the appellants motion to introduce the Margot and
    Marquis report as fresh evidence on the committal appeal is dismissed.

D.

issues on the
    committal appeal

[93]

The
    appellant frames the issue on the committal appeal as this: did the extradition
    judge err by ordering committal on the basis of the methodologically unsound
    Bisotti report, contrary to
Ferras
?

[94]

His
    submissions can be broken down into four discrete alleged errors.

[95]

First,
    he argues that an expert opinion that does not meet the threshold reliability
    test in
Mohan

and
Abbey
is manifestly unreliable and
    should not be considered by a judge at an extradition hearing. He submits that
    the extradition judge erred in law in concluding to the contrary. Applied to
    this case, the appellant argues that the Bisotti report does not meet the
    threshold reliability standard of
Abbey
and is therefore manifestly
    unreliable.

[96]

Second,
    he argues that the extradition judges conclusion that the Bisotti report was not
    manifestly unreliable was rooted in speculation and a misapprehension of the
    evidence. The extradition judge discounted evidence from all of the appellants
    experts that Mme Bisotti used a flawed and totally unreliable methodology on
    the basis that it was possible that France has a different approach to, or methodology
    for, handwriting analysis. The evidence before the extradition judge was that
    there is one accepted method of handwriting analysis used around the world.

[97]

Third,
    the appellant submits that even if the threshold reliability test in
Abbey
is not applicable in an extradition context, the extradition judge imposed too
    high a standard for manifest unreliability. The appellant argues that the
    extradition judges approach makes it nearly impossible to establish that an
    expert report in the record of a case is manifestly unreliable.

[98]

Finally,
    the appellant renews an argument he made to the extradition judge. He submits
    that, having concluded that the Bisotti report was not manifestly unreliable,
    the extradition judge failed to ask the second question that
Ferras
requires: on all of the evidence in the record of the case, would it be
    dangerous or unsafe to convict the appellant? Relying on
United States of
    America v. Graham
, 2007 BCCA 345, 222 C.C.C. (3d) 1, leave to appeal
    refused, [2007] S.C.C.A. No. 467, he argues that the extradition judge must
    apply an unreasonable verdict/conviction test in deciding the issue of
    committal. The extradition judge acknowledged that Frances case turned on the
    Bisotti report.  The appellant submits that given the problems inherent in the
    Bisotti report, the answer to such a question would be yes, and the
    extradition judge should not have committed the appellant.

[99]

The
    CCLA echoes the appellants final argument. It asserts that committal should
    not be ordered if the extradition judge concludes, after looking at the whole
    of the available and reliable evidence, that it would be dangerous or unsafe to
    convict.

E.

analysis OF ISSUES ON
    THE COMMITTAL APPEAL

[100]

We begin by
    noting that absent an error in the application of the
Ferras

standard,
    a misapprehension of the evidence or an unreasonable conclusion, the extradition
    judges determination that the Bisotti report is not manifestly unreliable and
    that the appellant should be committed involves the exercise of judicial
    discretion and is entitled to deference:
Michaelov
, at para. 72.

[101]

With that
    observation, we turn to address each of the extradition judges alleged errors.

(1)

Threshold reliability in
Mohan

and
Abbey
versus
    manifest unreliability in the extradition context

[102]

While our
    reasoning is different, we agree with the extradition judge that the threshold
    reliability inquiry required by
Mohan
and
Abbey
is different than
    the inquiry that an extradition judge must undertake when the person sought
    challenges an expert opinion that forms part of the record of the case.

[103]

In
Mohan
,
    decided more than a decade before
Ferras
, the Supreme Court
    highlighted the danger that a jury is apt to accept an expert opinion as being
    virtually infallible and as having more weight than it deserves: at p. 21. In
Abbey
,
    decided some three years after
Ferras
, this court provided further
    guidance about the cost-benefit or gatekeeper analysis that must be
    undertaken to determine if an expert opinion should be admitted.

[104]

On the benefit
    side, the potential probative value of the expert opinion must be considered. That
    assessment requires a consideration of the reliability of the opinion. And, as
    Doherty J.A. wrote in
Abbey
,

at para. 87: Reliability concerns
    reach not only the subject matter of the evidence, but also the methodology
    used by the proposed expert in arriving at his or her opinion, the experts
    expertise and the extent to which the expert is shown to be impartial and
    objective. On the cost side, the greatest risk is that the jury will be unable
    to critically assess the expert evidence and will abdicate its fact-finding
    role to the expert.

[105]

Keeping in mind
    the dangers posed by expert opinion evidence, the court must determine whether
    the opinion is sufficiently reliable to be considered by the jury. The trial
    judge should not be concerned with the ultimate reliability of the evidence. A
    flexible approach to the determination of reliability at the gatekeeper stage
    is essential. The factors relevant in determining the reliability of the
    opinion will differ depending on the nature of the opinion; there is no bright
    line rule.  The gatekeeper inquiry requires an exercise of judicial discretion.
    As Doherty J.A. wrote, at para. 79: Different trial judges, properly applying
    the relevant principles in the exercise of their discretion, could in some
    situations come to different conclusions on admissibility.

[106]

The lens through
    which a challenged expert opinion in the record of the case must be evaluated
    is different.
Abbey
seeks to protect the trier of fact from material
    that is ultimately detrimental to the truth-seeking function because it might
    overwhelm the fact-finder or cannot be effectively assessed. Its purpose is to
    protect the fairness of the trial process.  That is not the focus of an
    extradition judge reviewing the record of the case. Protecting trial fairness
    is generally the responsibility of the requesting state, not the extradition
    judge. The extradition judge reviews the record of the case to ensure the
    minimum constitutionally acceptable level of scrutiny of the requesting states
    evidence, and not to protect trial fairness in the requesting state.

In
    the words of

Ferras
, at para. 47, the extradition judge
    scrutinizes the evidence to ensure that the appellant is not deprived of his
    constitutional right to a meaningful judicial determination
before
[he] is sent out of the country and loses his  liberty (emphasis in original).

[107]

That is not to
    say
Mohan
and
Abbey

are of no use in the extradition
    context. While the inquiry in
Mohan
and
Abbey
is undertaken
    for a different purpose, and
Mohan
/
Abbey
and manifest unreliability
    analyses may therefore yield different results, the factors discussed in
Abbey
may nonetheless assist an extradition judge in determining whether an expert
    report in a record of the case is manifestly unreliable.

[108]

This case
    illustrates the point. While the extradition judge declined to conduct a full
Mohan
/
Abbey

analysis, he nonetheless considered Mme Bisottis qualifications and allowed
    the appellant to lead evidence questioning her qualifications and raising the
    issue of bias and the validity of her methodology. As Cronk J.A. pointed out in
    her decision granting the appellant bail pending appeal, the criteria set out
    in
Mohan

and
Abbey

are general interpretive
    criteria applicable to the assessment of whether expert evidence meets the test
    of threshold reliability: unreported, July 19, 2011, at para. 34. Flexibly
    applied, these criteria may be useful in the extradition context.

[109]

We would add one
    further observation. The appellants argument assumes that a trial judge
    applying
Mohan
and
Abbey
would inevitably have kept the
    Bisotti report from the jury. We are not convinced that such is the case. According
    to the Goudge Report, at pp. 488-89, a consideration in determining threshold
    reliability is whether other experts are available to evaluate the experts
    technique. This allows the jury to understand the frailties in the tendered
    opinion. Applied to this case, the soft science of handwriting comparison is
    something much more understandable to a lay person than most matters upon which
    experts opine. Given the nature of the issue and the existence of competing
    expert reports,

it is possible that a trial judge properly applying the
    principles in
Mohan
and
Abbey
might have used his or her
    discretion to admit the Bisotti report.

(2)

Misapprehension of the evidence

[110]

We are not
    persuaded that the extradition judges conclusion that the Bisotti report was
    not manifestly unreliable was rooted in impermissible speculation and a
    misapprehension of the evidence.

[111]

We agree with
    the appellant that the evidence of his experts was that there is one accepted
    method of handwriting analysis used around the world and that ENFHEX essentially
    endorses this universal method.

[112]

ENFHEX has
    published a guide entitled, Overview Procedure for Handwriting Comparisons. It
    is an eight-page document that, in the words of the appellants expert, Robert
    Radley, is a very basic outline of general procedures together with some
    recommendations for reading material. The recommended works  described in the
    guide as some of the significant publications that relate to the examination
    of Handwriting  are published in the U.S., England and Germany. None of the
    referenced works is written in French.

[113]

In her report,
    Mme Bisotti indicates that she followed the ENFHEX method and provides some
    detail of the methodology she employed. The appellant has not established that
    Mme Bisotti failed to follow the general procedures outlined in the ENFHEX guide.
    For example, the guide indicates that [t]he approach relies on an examination
    of the characteristics of the handwriting, and an assessment of the
    similarities and differences found between pieces of handwriting. The guide
    does not indicate that it is the
differences
that are determinative in
    establishing identification.  And while the guide indicates that the expert
    should assess whether there is sufficient handwriting to be able to assess the
    range of variation, it does not direct what amount of handwriting constitutes a
    sufficient basis. The appellants three experts  none of whom was familiar
    with forensic document examination in France  go into much more detail in
    their reports about how they say a competent handwriting expert would apply the
    general principles in the ENFHEX guide.

[114]

Comparing the
    very general ENFHEX guide to the very detailed approach outlined by the
    appellants experts, it would not have been unreasonable for the extradition
    judge at least to contemplate the possibility that forensic document examiners
    in France might have a different approach in their application of the ENFHEX
    guide in handwriting analysis.

[115]

In any event, as
    we explained above, when the extradition judge denied the appellants request
    for an adjournment to lead the evidence of Prof. Margot and Dr. Marquis, he
    made clear that evidence that France does not have a different approach to handwriting
    analysis would not have changed his decision that the Bisotti report was not
    manifestly unreliable. His conclusion was not rooted in the possibility that
    French forensic document examiners might use a different methodology.

(3)

The committal judge imposed too high a standard

[116]

As the
    extradition judge noted, a high threshold attaches to the categorization of
    evidence that may be called manifestly unreliable. We are not persuaded that
    the extradition judge erred in the application of the

Ferras
standard.  We see no basis for appellate intervention with his conclusion that
    the Bisotti report was not manifestly unreliable. In our view, the appellant
    has received the meaningful judicial determination that
Ferras
requires before he can be extradited.

[117]

As noted above,
Anderson

did not deal with opinion evidence. Justice Dohertys remarks responded to
    the submission of the appellant in that case that

Ferras

entitled
    him to engage in what was effectively a speculative, unfocused credibility
    contest between two alleged co-conspirators. Justice Dohertys remark, at para.
    28, that 
Ferras
,
supra
,
does not envision weighing competing inferences
    that may arise from the evidence should not be read as prohibiting an extradition
    judge from engaging in a limited weighing of an expert opinion in the record of
    the case, in light of competing expert opinions proffered by the person sought
    to determine whether it is manifestly unreliable.

[118]

Expert opinions
    are admitted because they are beyond the scope of the expertise of the trier of
    fact. Because of this, in many cases it will be difficult for an extradition
    judge to conclude that the methodology used by the requesting states expert is
    so clearly and obviously improper that the opinion is devoid of reliability and
    should be completely rejected without the assistance of other experts.

[119]

Here, the
    extradition judge evaluated the expert opinion in the record of the case in
    light of the competing expert opinions proffered by the appellant. He carefully
    considered the evidence of the appellants experts and the Bisotti report over
    the course of a protracted proceeding. He determined that the appellants
    expert evidence did not lead him to conclude that the Bisotti report should be
completely
rejected as manifestly unreliable.

[120]

In
Abbey
,
    Doherty J.A. explained the discretionary nature of the gatekeeper analysis
    undertaken in deciding whether an opinion is sufficiently reliable to be
    considered by a jury. To repeat para. 79 of
Abbey
, quoted earlier, [d]ifferent
    trial judges, properly applying the relevant principles in the exercise of
    their discretion, could in some situations come to different conclusions on
    admissibility. That statement is equally applicable to an extradition judge
    determining whether an expert opinion in the record of the case is manifestly
    unreliable.

[121]

The appellant
    argues that the standard for manifest unreliability of an expert opinion reflected
    in para. 124 of the extradition judges reasons is too high. For ease of
    reference, that paragraph, excerpted above, reads as follows:

If the only available conclusion
    derived from the [record of the case] and the evidence from the three experts
    presented on behalf of the person sought was that the French expert was biased,
    unqualified, and used improper methodology in every respect, then a finding of
    manifest unreliability would be possible. However, the evidence heard at this
    hearing did not support such an unequivocal finding.

[122]

We agree with
    the appellant that para. 124, if read literally, and in isolation, reflects too
    high a standard. It is difficult to articulate where the line should be drawn,
    and the extradition judge struggled to do so. However, as we explain below, in
    our view it is clear from the extradition judges reasons read as a whole that
    he understood and applied the correct standard.

[123]

First, at para.
    116, excerpted above, the extradition judge correctly wrote: [M]anifest
    unreliability in the context of an extradition case would mean evidence that is
    so devoid of reliability that it should be rejected out of hand when considering
    the issue of committal.

[124]

Second, it is
    clear from the example the extradition judge provided in para. 125 of what
    would amount to manifest reliability, that the references in para. 124 to bias,
    lack of qualification
and
improper methodology should be read
    disjunctively and not conjunctively. The example in para. 125 is with respect to
    methodology alone: the use by handwriting experts of exemplars not written by
    the appellant would render the opinion manifestly unreliable.

[125]

Third, while the
    extradition judge wrote in para. 124 that the competing opinions must show that
    the expert opinion in the record of the case used improper methodology in
every
    respect
 (emphasis added), it is similarly clear from the example he
    provides at para. 125 that he appreciated that one methodological flaw  if
    sufficiently fundamental  can render an opinion manifestly unreliable.

[126]

In our view, the
    standard effectively applied by the extradition judge was this: where the evidence
    of the expert whose opinion is in the record of the case is so suspect that it
    is devoid of reliability and of utility to the fact finder, an extradition
    judge may properly find the opinion manifestly unreliable. And an extradition
    judge may come to that conclusion for one or more of a variety of reasons. This
    is, in our view, the correct standard where the opinion proffered is in a field
    of science or pseudoscience recognized in Canada as an admissible form of
    expert evidence, as is the case here.

(4)

The test for committal

[127]

In our view the
    extradition judge correctly stated the test for committal, and, having
    concluded that the Bisotti report was not manifestly unreliable, did not err by
    not analyzing the evidence further to decide if it would be dangerous or unsafe
    to convict on all of the evidence in the record of the case. As we will
    explain, the dangerous or unsafe to convict standard properly belongs in the
    test for manifest unreliability, where the extradition judge applied it. Additionally,
    in our view the test for unreasonable verdict/conviction is, by its very
    nature, different from the test for committal. The former is a retrospective
    analysis, performed once all of the evidence has been heard and weighed at the
    trial stage, while the latter is prospective, necessarily avoiding drawing
    conclusions on the ultimate outcome of the trial.

[128]

I
n
Ferras
, the Supreme Court held that it is
    inappropriate to equate the task of the extradition judge with the task of a
    judge on a preliminary inquiry;  it is not enough for evidence merely to exist
    on each element of the crime. The test applied on a preliminary inquiry could
    deprive the person sought of his constitutional right to a meaningful judicial
    determination before he is sent out of the country and loses his liberty. 
    Rather, the evidence in the record of the case must demonstrably be able to be
    used by a reasonable, properly instructed jury to reach a guilty verdict.  As
    explained above, this requires that the extradition judge engage in limited
    weighing of the evidence.

[129]

As this court has
    previously held in
Thomlison
,
Anderson
and
Michaelov
,
    at the first stage, that limited weighing involves determining whether evidence
    in the record of the case is manifestly unreliable. If it is, it must not be
    considered by the extradition judge in stage two of the analysis in determining
    whether there is sufficient evidence to commit the person sought. This second
    stage requires the extradition judge to ask whether there remains available
    and reliable evidence upon which a reasonable jury, properly instructed, could
    convict. This stage will
also
involve limited weighing, to the extent
    that it is inevitable in a reasonableness assessment, where circumstantial
    evidence is involved.

[130]

As the Supreme
    Court explained in
R. v. Arcuri
, 2001 SCC 54, [2001] 2 S.C.R. 828, at
    para. 23, determining whether elements of an offence may reasonably be inferred
    from circumstantial evidence inevitably requires the judge to engage in a
    limited weighing of the evidence because  there is  an inferential gap
    between the evidence and the matter to be established  that is, an inferential
    gap beyond the question of whether the evidence should be believed (citations
    omitted). As explained earlier in these reasons, this is exactly the test
    applied by the extradition judge, articulated at paras. 139-41.

[131]

The appellant challenges
    this courts approach by focussing on the statement of the Supreme Court, at
    para. 54 of
Ferras
: If the evidence is so defective or appears so
    unreliable that the judge concludes it would be dangerous or unsafe to convict,
    then the case should not go to a jury and is therefore not sufficient to meet
    the test for committal. He infers from this that the proper standard for the
    extradition judge to apply is the unreasonable verdict/conviction test.

[132]

Shephard
is the apparent source of the phrases dangerous or unsafe to convict and
    manifestly unreliable employed in
Ferras
. As mentioned above, in
Shephard
,
a pre-
Charter

case
,
the majority of the Supreme
    Court

held that

an extradition judge could not decline to commit
    the person sought on the basis that the evidence proffered by the requesting
    state was manifestly unreliable.
Shephard
seemingly uses the phrases
    manifestly unreliable evidence and evidence that is so dubious as to make it dangerous
    or unsafe to convict interchangeably. In other words, it would be dangerous or
    unsafe to convict if the evidence is manifestly unreliable. As discussed above,
    in
Ferras
, the Supreme Court essentially adopts the dissenting reasons
    of Spence J. in
Shephard
.

[133]

It is clear from the extradition judges oral reasons of
    February 18, 2011, that he addressed whether it would be dangerous to convict
    based on the Bisotti report. There, he phrased the issue before him as whether
    the Bisotti report should be excluded from the Record of the Case as
    manifestly unreliable, or as so defective that it would be dangerous to convict
    upon [it].

[134]

In our view, the
    dangerous or unsafe to convict consideration in
Ferras
is addressed
    by the exclusion of evidence that is manifestly unreliable. The test for
    committal is made out where: (1) evidence that is manifestly unreliable, and on
    which it would therefore be dangerous or unsafe to convict, is excluded; and (2)
    there remains evidence available for trial that possesses
indicia
of
    threshold reliability on each essential element of the corresponding Canadian
    offence, upon which a reasonable jury properly instructed could convict.

[135]

We reject the
    appellants argument that the extradition judge must apply a test comparable to
    the unreasonable verdict/conviction test, and the suggestion that such test
    requires an appellate court to ask whether the verdict was unsafe. We disagree
    with the British Columbia Court of Appeal in
Graham
to the extent that
    it holds otherwise.

[136]

In
Graham
,
    decided six months after
Thomlinson

and
Anderson

were
    released, Donald J.A. criticized what he regarded as this courts emphasis on
    the concept of manifestly unreliable evidence as a component of the test for
    committal. Quoting para. 28, excerpted above, of Doherty J.A.s decision in
Anderson
to the effect that an extradition judge has no authority to deny committal in a
    case that appears weak or unlikely to succeed at trial, Donald J.A. disagreed
    and continued, at para. 31:

My difficulty with that way of putting the limit of discretion
    is that there are
degrees
of weakness and extradition judges should not
    be put off their task of assessing for sufficiency by a dictum that mere
    weakness is not enough. I agree that it is not enough. It may be more helpful
    to speak in terms of the test for reviewing verdicts for unreasonableness on
    appeal or for directed verdicts. [Emphasis in original.]

[137]

The
    unreasonable verdict test was stated by the Supreme Court in

Yebes
,
    at p. 185:

[C]urial review is invited whenever a jury goes beyond a
    reasonable standard. In my view, then

the test is whether the
    verdict is one that a properly instructed jury acting judicially, could
    reasonably
have rendered
.  [Emphasis added.]

[138]

As the Supreme
    Court explained in
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381,
    at para. 36:

[The] formulation of the test imports both an objective
    assessment and, to some extent, a subjective one. It requires the appeal court
    to determine what verdict a reasonable jury, properly instructed, could
    judicially
have arrived at
, and, in doing so, to review, analyse and,
    within the limits of appellate disadvantage, weigh the evidence. [Emphasis
    added.]

And, at para. 40:

[A]cting judicially means not only acting dispassionately,
    applying the law and adjudicating on the basis of the record and nothing else. It
    means, in addition, arriving at a conclusion that does not conflict with the
    bulk of judicial experience.

[139]

The unreasonable
    verdict test is applied
after
trial, on a full record, and permits the
    appeal court to weigh the evidence, subject only to the limits of appellate
    disadvantage: in other words, it is a retrospective analysis. This is a
    completely different perspective from that contemplated by s. 29(1) of the Act
, which
speaks of evidence that would
    justify committal for trial in Canada. In
Ferras
, at para. 46, the
    Supreme Court made clear that the test on an extradition hearing is whether the
    requesting state has established a case that
could go to trial
in
    Canada (emphasis in original).  The analysis is prospective.  And, as
    discussed above, the Supreme Court also made clear in
Ferras
that an
    extradition judge is only to engage in a limited weighing of the evidence.

[140]

Further, in
R.
    v. A.G.
,
2000 SCC 17,
    [2000] 1 S.C.R. 439, which was heard together with
Biniaris
,
the Supreme Court rejected a formulation of the unreasonable verdict test that
    inquired whether the verdict was unsafe and confirmed its formulation of the
    unreasonable verdict test in
Biniaris
.
The existence of dangerous
    or unsafe to convict language in the test for committal, explored above, does
    not support the use of the unreasonable verdict standard. The formulations of
    the tests for unreasonable verdict and for committal are thus quite different,
    although they may seem similar on the surface.

[141]

For these
    reasons, the committal appeal is dismissed. We now turn to the appellants
    application for judicial review of the Ministers extradition order.

IV.

THE JUDICIAL REVIEW APPLICATION

[142]

On the judicial
    review application the appellant advances two grounds: (1) the Minister lacked
    the jurisdiction to order surrender because the appellant is not wanted by
    France for the purpose of a trial; and (2) to surrender the appellant to face a
    trial based (a) on unknown, unsourced and uncircumstanced intelligence reports,
    and (b) on evidence contained in those reports that may have been derived from
    the use of torture, is contrary to s. 7 of the
Charter
as it would
    shock the conscience of Canadians.

[143]

We will deal
    with each of these grounds in turn.

A.

Did the Minister have
    jurisdiction?

[144]

The appellant
    argues that the Minister erred in concluding that he had jurisdiction to
    entertain Frances extradition request. In the appellants submission, the Act,
    properly interpreted, limits the Ministers authority to order extradition to
    cases where the requesting state has decided to put the person on trial.
    Because it is acknowledged that France has yet to make a decision as to whether
    the appellant will be put on trial, the Minister acted without jurisdiction and
    his order ought to be quashed.

[145]

We would not
    give effect to this submission.

(1)

The statutory authority

[146]

Extradition from
    Canada is governed by the Act, which sets out the Ministers power to
    surrender. The appellant, in his submissions to the Minister, explained that
    the Ministers power is circumscribed and its reasonableness must be assessed
    in the context of the
Act
. As explained by the appellant:

1. The Ministers
    power to order or refuse surrender is subject to the provisions of the treaty
    and the Act and must be exercised in accordance with the
Canadian Charter
    of Rights and Freedoms.


2. The
    reasonableness of the [Ministers] decision must be assessed with regard to all
    relevant circumstances and the applicable provisions of the Act.

3. Any
    inconsistency between the Act and the relevant treaty is to be resolved in
    favour of and governed by the Act: For greater certainty, if there is an
    inconsistency between this Act and a specific agreement, this Act prevails to
    the extent of the inconsistency. [Citations omitted.]

[147]

The appellants
    argument that the Minister did not have the authority to grant Frances
    extradition request is based on s. 3(1) of the
Act
. This section outlines the general principle of the Act.
    For our purposes, the critical portion of s. 3(1) is the introductory paragraph
    which reads as follows:



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 .
          [Emphasis added.]



Toute personne peut être extradée du
          Canada, en conformité avec la présente loi et tout accord applicable, à la
          demande dun partenaire
pour subir son procès
dans le ressort de
          celui-ci, se faire infliger une peine ou y purger une peine si. [Emphasis
          added.]



[148]

In the appellants
    submission, s. 3 of the Act imposes at least two limits on jurisdiction. First,
    the request must come from an extradition partner, that is, a country with whom
    an extradition agreement has been entered into. It is clear, therefore, that
    the Minister has no authority to extradite a person unless the request comes
    from an extradition partner.

[149]

A second limit
    is imposed on the Minister: the surrender request must be for the purpose of
    prosecuting the person or, in the French version, pour subir son procès.

(2)

The standard of review

[150]

Judicial review
    to this court is pursuant to s. 57 of the Act. Section 57(7) provides that this
    court can grant relief from the Ministers decision on any of the grounds set
    out in s. 18.1(4) of the
Federal Courts Act
, R.S.C. 1985, c. F.7.
    Included in those grounds is whether the Minister acted without jurisdiction or
    erred in law. As the Supreme Court stated in
Lake v. Canada (Minister of
    Justice)
, 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 26: [U]nder s. 57(2)
    [of the Act], judicial assessment of the Ministers decision by the court of
    appeal is a form of administrative law review and must be conducted in accordance
    with the applicable administrative law standard.

[151]

In the appellants
    submission, the Minister erred in concluding that he had the necessary
    jurisdiction, and correctness is the applicable standard for reviewing this
    conclusion. The appellant explains that because extradition is wholly a
    creature of statute, the Ministers power must be anchored in the statute: see
Re
    McVey
;
McVey v. United
    States of America
, [1992] 3 S.C.R.
    475,
at p. 508.  Faced with an extradition request, the Ministers
    jurisdiction under the Act is only triggered where: (1) the request comes from
    an extradition partner, and (2) the request is for the purpose of prosecuting
    the person sought. The existence of each of these elements is therefore, in the
    appellants submission, a true question of jurisdiction attracting review on
    a correctness standard.

[152]

We disagree.
    When the Supreme Court reformulated the standard of review analysis for
    judicial review in
Dunsmuir v. New Brunswick
, 2008 SCC 9, [2008] 1
    S.C.R. 190, it retained true questions of jurisdiction as a category
    attracting correctness review: see e.g. para. 59. However, the Court has since
    sharply called into question the viability of the true questions of
    jurisdiction category, notably in
Alberta (Information and Privacy
    Commissioner) v. Alberta Teachers Association
, 2011 SCC 61, [2011] 3
    S.C.R. 654  the very decision the appellant cites in support of his claim that
    the language quoted above from s. 3(1) of the Act presents a true question of
    jurisdiction. Writing for a six-member majority of the Court, Rothstein J.
    suggested, at para. 34, that it may be that the time has come to reconsider
    whether, for purposes of judicial review, the category of true questions of
    jurisdiction exists and is necessary to identifying the appropriate standard of
    review.

[153]

Justice
    Rothsteins reasons in
Alberta Teachers Association
did not
    explicitly eliminate the category of true questions of jurisdiction, but given
    that he could not reference a single legitimate application of the category, he
    was unable to provide a definition of what might constitute a true question of
    jurisdiction: at para. 42. He held, at para. 39: As long as the true question
    of jurisdiction category remains, the party seeking to invoke it must be
    required to demonstrate why the court should not review a tribunals
    interpretation of its home statute on the deferential standard of
    reasonableness.

[154]

This burden will
    rarely, if ever, be met: Experience has shown that the category of true
    questions of jurisdiction is narrow indeed. Since
Dunsmuir
, this Court
    has not identified a single true question of jurisdiction:
Alberta
    Teachers Association
, at para. 33. Citing
Alberta Teachers
    Association
, this court has found that true questions of jurisdiction
    will be exceptional:
Pastore v. Aviva Canada Inc.
, 2012 ONCA 642,
    112 O.R. (3d) 523.

[155]

Granted there is
    a complication in this case because, as noted above, whether the Minister acted
    without jurisdiction is listed in s. 18.1(4) of the
Federal Courts Act
as one ground on which this court can grant relief from the Ministers
    decision. However, that the Court can grant relief on this ground is not
    disputed  the proper standard for judicial review is. Further, as also noted
    above, this exercise of judicial review is a form of administrative law review
    and must be conducted in accordance with the applicable administrative law
    standard:
Lake
, at para. 26. Indeed, in
Lake
, the Supreme
    Court addressed the standard of review generally applicable to the Ministers
    decision to surrender an individual to the requesting state. Justice LeBel,
    writing for a unanimous Court, stated, at para. 22:

After an individual has been committed for extradition, the
    Minister reviews the case to determine whether the individual should be surrendered
    to the requesting state. This stage of the process has been characterized as
    falling at the extreme legislative end of the
continuum
of
    administrative decision-making and is viewed as being largely political in
    nature:
Idziak v. Canada (Minister of Justice)
, [1992] 3 S.C.R. 631,
    at p. 659.

[156]

Justice LeBel
    noted further, at para. 34, that the Supreme Court has repeatedly affirmed
    that deference is owed to the Ministers decision whether to order surrender
    once a fugitive has been committed for extradition, and that reasonableness is
    the appropriate standard of review even where the fugitive argues that
    extradition would infringe his or her rights under the
Charter
. If
    deference is owed to the Ministers interpretation of
Charter
provisions in the context of a decision to surrender, then, in our view,
    deference is
a fortiori
owed to the Ministers interpretation of
    provisions such as s. 3(1) of the Act  with which he is especially familiar,
    and in the application of whose provisions he has particular expertise  in the
    context of such a decision.

[157]

This result is
    confirmed by the approach Rothstein J. adopted in
Alberta Teachers
    Association
, at para. 44: 
Dunsmuir
provided guidance as to how a
    standard of review might be determined summarily without requiring a full
    standard of review analysis. One method was to identify the nature of the
    question at issue, which would normally or, I say, presumptively determine the
    standard of review. On this approach, Rothstein J. concluded, at para. 46,
    that since
Dunsmuir
, for the correctness standard to apply, the
    question has to not only be one of central
importance to the legal system
but also outside the
adjudicators specialized area
of expertise
    (emphasis in original).

[158]

Given
Lake
s
    characterization of the Ministers decision as being largely political in
    nature, the nature of this decision is clearly not of central importance to
    the legal system or outside the Ministers area of expertise. The approach
    adopted in
Alberta Teachers Association
thus confirms the deference
    owed to the Ministers decision on judicial review.

[159]

A reasonableness
    standard is therefore appropriate for review of the Ministers decision
    regarding the application of s. 3(1) of the Act

to the particular
    circumstances of this case. The Ministers decision is one of mixed fact and
    law in that he interprets the Act

and assesses how it applies to the
    factual circumstances of the extradition request. His decision is entitled to
    deference and ought not to be interfered with unless the appellant can show
    that it is unreasonable. As we will explain, the Ministers analysis and
    conclusion on the jurisdictional issue were reasonable.

(3)

The French system

[160]

Before turning
    to the legal issue raised, a brief description of the relevant aspects of the
    French criminal justice system is necessary.

[161]

France has a
    civil law system. In criminal matters a
juge dinstruction
is assigned
    to investigate crimes and may place a specific individual under judicial
    investigation (
mis en examen
). Before an individual can be
mis
    en examen
, that individual must have made a first appearance before the
juge
    dinstruction
and have been allowed to make a statement. Once an individual
    is
mis en examen
, the individual officially becomes the subject of a
    criminal investigation.

[162]

When the
    investigation is complete, the
juge dinstruction
notifies the parties
    and decides whether the evidence justifies referring the matter to a trial
    court or declaring that there is no case to answer.

[163]

With respect to
    this case, the French government has confirmed that the appellant has not yet
    been
mis en examen
. Once he appears before the
juge dinstruction,
    the juge dinstruction
will decide whether he will be
mis en examen
and, assuming he is
mis en examen
, only then can the judge complete
    the investigation and decide whether the appellant will stand trial. As
    explained by the appellant, it is clear, therefore, that no decision has been
    made to have the appellant tried in France.

[164]

France has
    explained why the appellant cannot be
mis en examen
and sent to trial
    until after the appellant has appeared in person before the
juge
    dinstruction
. This is to ensure that the
juge dinstruction
has
    the opportunity to hear from the appellant and allow him to comment on the
    evidence that has been assembled before the
juge dinstruction
moves
    to the next phase. As we will explain, the appellant challenges Frances
    assertion that his appearance is necessary before a decision is made as to
    whether he will be
mis en examen
.

(4)

What does for the purpose of prosecuting the person  pour   subir
    son procès  mean?

[165]

It is well
    settled that the Act does not allow the extradition of a person for mere
    investigative purposes. Extradition is not to be used as a tool by foreign
    states to question people as potential witnesses or suspects. To trigger
    application of the Act, more is required.

[166]

The present case
    requires us to consider more closely the threshold that must be met in order to
    satisfy the requirement in s. 3(1) that the extradition request be for the
    purpose of prosecuting the person.

[167]

In our view,
    although extradition is grounded on the anticipation of a foreign trial, it
    need not be inevitable that a trial will occur. Different legal systems will
    have different processes and steps required to be taken before a trial takes
    place. In Canada, for example, a person charged may be subjected to a
    preliminary inquiry before proceeding to trial. The person charged will not,
    therefore, necessarily undergo a trial.

[168]

Different
    systems will also have different safeguards in place to ensure fairness and due
    process. Again, by way of example, in Canada a prosecutor exercises
    prosecutorial discretion and, based on information received right up to and
    including the trial, can decide to discontinue the prosecution. Similarly, in
    the course of pre-trial proceedings, a judge can, in appropriate circumstances,
    stay the charge and thereby obviate the need for a trial.

[169]

It is accepted
    that the differences in processes and procedures are greatest when one compares
    a common law system such as ours with a civil law system such as Frances.

[170]

In
Re Ismail
,
    [1998] UKHL 32, [1999] 1 A.C. 320, the House of Lords, dealing with an
    extradition request from the Federal Republic of Germany, was presented with
    the argument that because no formal criminal charge had been laid by Germany
    against the person sought, the person sought was not an accused as required
    by the
Extradition Act 1989
(U.K.), 1989, c. 33. Lord Steyn, writing
    for the Court, rejected this submission. He cautioned that a broad and
    purposive interpretation was required. In reaching this conclusion, he made
    several points that apply equally to the Canadian context, including:

·

mere suspicion that an individual has committed an offence is
    insufficient to place him in the category of accused persons.  Something
    more is required: at p. 326;

·

one is concerned with the contextual meaning of accused in a
    statute intended to serve the purpose of bringing to justice those accused of
    serious crimes. There is a transnational interest in the achievement of this
    aim: at p. 326-27;

·

it would be wrong to approach the problem of construction [of
    accused] from the perspective of  [domestic] criminal procedure given the
    divergent systems of law involved and notably the differences between common
    law and civil law jurisdictions: at p. 327;

·

a broad and purposive interpretation of accused ought to be
    adopted in order to accommodate the differences between legal systems. The
    approach should be cosmopolitan and focus on matters of substance over form:
    at p. 327; and,

·

the test is whether the competent authorities in the foreign
    jurisdiction ha[ve] taken a step which can fairly be described as the
    commencement of a prosecution: at p. 327.

[171]

Although these
    points were made with respect to the U.K.s extradition statute, which speaks
    in terms of an accused, the same principles apply, in our view, to the Act
    when it refers to extradition for the purpose of prosecuting the person.

[172]

The appellant
    argues that the approach adopted in
Ismail
should not be followed and
    the approach taken in
Fletcher v. Government of France
(2008), 2007-09 Gib. L.R. 191 (S.C. Gibraltar),
and
The Minister for Justice, Equality and Law Reform v. Bailey
,

[2012] IESC 16 (S.C. Ireland),
is to be preferred.

[173]

We do not view
    the
Fletcher
and
Bailey
cases as providing useful guidance.
    In both cases, the court was considering an extradition request made pursuant
    to a European arrest warrant. Extradition in the
Fletcher
case was
    only authorized by the applicable statute where the requesting state certified
    that both a proceeding against the person had been commenced and 
a

decision
to try him for the offence concerned had been made (emphasis added):
Fletcher
,
    at para. 6. The statute in the
Bailey
case was even stronger. It
    provided that the court shall refuse to surrender the person if it is satisfied
    that
a decision
has not been made to charge the person with,
and
try him or her for, that offence in the issuing state (emphasis added):
Bailey
,
    at para. 70.

[174]

The wording of
    the provisions in those two cases made it quite clear that for extradition to
    occur, both a decision to initiate a proceeding and a decision to try the
    person sought had to have been made. There is no such requirement under our
    legislation. Our legislation is more in line with the British legislation and
    the approach taken in
Ismail
is to be preferred.

[175]

What we conclude
    from the cases and a contextual reading of the statutory provisions is that an
    extradition request must be grounded in the anticipation that there will be a
    foreign trial. In other words, a process or prosecution has been initiated
    against the person sought that will, if not discontinued, lead to a trial. The
    person sought must be more than a mere suspect. A trial of that person,
    however, need not be inevitable.

[176]

The record in
    this case clearly demonstrates that the appellant, if extradited, will not
    simply languish in prison: see
Ferras
, at para. 55. The appellant is
    more than a mere suspect in that France has taken steps that can fairly be
    described as the commencement of a prosecution against him. Specifically, the
    record discloses that the
juge dinstruction
has issued an arrest
    warrant for the appellant. The
juge dinstruction
is satisfied that
    the French authorities obtained very specific information of the appellants
    alleged participation in the French offences that has been corroborated by
    [subsequent] investigations. When the appellant is surrendered, he will be
    taken into custody and brought before the
juge dinstruction
for his
    first appearance and, at that appearance, he will be given an opportunity to be
    heard. A further indication that a trial is anticipated flows from France
    certifying in the record of the case that the evidence set out in the record of
    the case is available for trial.

[177]

In our view, the
    Minister reasonably concluded that the French authorities have taken steps
    consistent with the commencement of a prosecution against the appellant. The
    French arrest warrant clearly shows that the appellant is an accused person
    charged with an offence and wanted for prosecution. He is much more than a mere
    suspect or someone wanted for questioning.

(5)

Is the Ministers interpretation of s. 3 inconsistent with the French
    version of the statute?

[178]

The appellant
    argues that the French version of the statute is more demanding than the
    English version. The French version provides that the extradition request must
    be for the purpose of having the person sought subir son procès that is, to
    stand trial. In the appellants submission, although the English version for
    the purpose of prosecution is broader and might not require that a decision
    have been taken that the person sought will be required to stand trial, the
    French version makes it clear that the purpose of the request must be to have
    the person stand trial. Because the two language versions of s. 3 differ, the
    rules of bilingual interpretation are to be applied to determine the proper
    meaning and scope of s. 3.

[179]

The appellant
    explains that where one version is clear and the other is ambiguous but
    reasonably capable of bearing the meaning of the clear version, the one
    expressed by the clear provision is to be preferred: see e.g.
Schreiber v.
    Canada (Attorney General)
, 2002 SCC 62, [2002] 3 S.C.R. 269, at para. 56.
    Similarly, where one version is narrow, and the other is broad but can
    reasonably be read to include the narrower version, the preferred meaning is
    that expressed by the narrow version: see Pierre-André Côté, Stéphane Beaulac
    & Mathieu Devinat,
The Interpretation of Legislation in Canada
,
    4th edition (Toronto: Carswell, 2011), at pp. 347-49.

[180]

In the appellants
    submission, when both versions are compared, the English version that refers to
    prosecution can reasonably be read to share the meaning of the clearer and
    narrower French version that speaks of trial. The tenets of bilingual
    interpretation of statutes therefore dictate that the correct interpretation is
    the shared meaning as expressed in the French version, which is that the person
    sought be sought to stand trial.

[181]

The appellant
    notes that this conclusion is reinforced when reference is made to s. 33(3) of
    the Act. That section provides that a judicial or prosecuting authority of the
    requesting state must certify that the evidence summarized in the record of the
    case is available for trial.

[182]

The appellant
    acknowledges that the Minister referred to the French version but submits that
    the Minister did not give effect to its clear meaning: that the requesting
    state must have made a decision to send the person sought to trial.

[183]

In our view,
    consideration of the French version does not lead to the interpretation
    advanced by the appellant. We acknowledge that, standing alone, the French
    version of s. 3(1) could be read as requiring that the requesting state has made
    the decision to try the person sought. The reference to standing trial in the
    French version is more specific than the English version that refers to the
    person being sought for prosecution. Even though it is more specific than the
    English version, the French version does not go as far as suggested by the appellant.
    It does not provide that a
decision
must have been made by the
    requesting state that the person is to stand trial. It simply provides that the
    request is made
so that he can
stand trial in the requesting state.

[184]

The correct
    meaning, in any case, should not be based on an interpretation of the words of
    s. 3(1) read in isolation. The modern principle of statutory interpretation is
    that the words of an Act are to be read in their entire context and in their
    grammatical and ordinary sense harmoniously with the scheme of the Act, the
    object of the Act, and the intention of Parliament:
Re Rizzo and Rizzo
    Shoes Ltd.
, [1998] 1 S.C.R. 27, at para. 21 (quoting Elmer Driedger,
Construction
    of Statutes
, 2d ed.

(Toronto: Butterworths, 1983)).

[185]

We agree that
    the principles of interpretation of bilingual statutes provide that where one
    version has a broader meaning than the other, the shared meaning, the meaning
    to be adopted, will usually be the narrower of the two. However, statutory
    interpretation involves more than these principles. As explained by Binnie J.
    in
Canada (Citizenship and Immigration) v. Khosa
, 2009 SCC 12, [2009]
    1 S.C.R. 339, at para. 39:

Linguistic analysis of the text is the servant, not the master,
    in the task of ascertaining Parliamentary intention. A blinkered focus on the
    textual variations [between the English and French versions] might lead to an
    interpretation at odds with the modern rule because, standing alone, linguistic
    considerations ought not to elevate an argument about text above the relevant
    context, purpose and objectives of the legislative scheme. [Citations
    omitted.]

[186]

In our case, the
    French authorities advise that the appellants personal presence before the
juge
    dinstruction
is required before he can be
mis en examen
and
    referred to trial. To interpret the Act as the appellant suggests would put
    Canada in breach of its obligations under the extradition treaty with France
    and, likely, under extradition treaties entered into with other countries that
    are civil law jurisdictions and have
juges dinstructions
who operate
    in similar regimes. Such an interpretation ought to be avoided: see
National
    Corn Growers Assn. v. Canada (Import Tribunal)
, [1990] 2 S.C.R. 1324, at
    pp. 1371-1372;
R. v. Hape
, 2007 SCC 26, [2007] 2 S.C.R. 292, at para.
    53.

[187]

Although we
    agree with the appellant that the Act does not specifically implement the
    treaty, the Act is intended to empower the Minister to give effect to the
    various treaties entered into by the government. The Ministers authority,
    therefore, comes from the Act but the Act cannot be interpreted in a vacuum. As
    explained in
Hape
, at para. 53, there is a well-established principle
    of statutory interpretation that as a matter of law, courts will strive to
    avoid constructions of domestic law pursuant to which the state would be in
    violation of its international obligations, unless the wording of the statute
    clearly compels that result; see also
United States of America v. Anekwu
,
    2009 SCC 41, [2009] 3 S.C.R. 3, at para. 25.

[188]

The U.K. courts
    recently rejected a similar argument in
Assange v. Swedish Prosecution
    Authority
, [2011] EWHC 2849 (Admin), affd [2012] UKSC 22. Mr. Assange,
    who was the subject of an arrest warrant for various offences in Sweden, argued
    that he was not extraditable to Sweden, a civil law country, because the case
    against him was only at the investigative stage. Under Swedish law, he could
    not be formally charged until he had appeared before the investigating judge
    and been questioned. It was acknowledged that further pre-trial investigation
    might result in no trial ever taking place. Mr. Assange maintained that in
    these circumstances, he did not have the status of an accused wanted for
    prosecution as required by the British statute. In rejecting this argument, the
    High Court of Justice applied the reasoning in
Ismail
and concluded
    that the fact that additional pre-trial investigation in Sweden might result in
    no trial taking place did not mean that Mr. Assange was a suspect as opposed to
    an accused.

[189]

In the present
    case, the Minister also relied on the reasoning in
Ismail
. As
    explained by the Minister:

[T]he extradition process mandates an approach that is not
    constrained by domestic notions of what constitutes an accused or charged
    person, or the end of the investigative stage and the commencement of the trial
    stage in a given case (
Re Ismail
, [1999] 1 A.C. 320 (H.L.);
United
    States of America v. Coffey
(2006), 210 C.C.C. (3d) (Man. C.A.);
Canada
    v. Schmidt
, [1987] 1 S.C.R. 500).

Rather, in the interest of accommodating differences between
    legal systems, I am required to take an approach that interprets both the
Treaty
and the
Act
in a purposive and flexible manner. To that end, I must
    not subject the judicial process in France to overly technical evaluations
    against the rules that govern the legal process in Canada (
Canada v.
    Schmidt, supra
).

[190]

In our view, the
    conclusion reached by the Minister is in keeping with the context and
    objectives of the Act and is consistent with both the French and English
    versions of s. 3(1) of the Act.

(6)

Did the Minister err in accepting the French authorities interpretation
    of the procedure under French law?

[191]

The appellant
    also argues that the Minister erred in relying on information provided by the
    French authorities to the effect that the appellants personal presence before
    the
juge dinstruction
is required before a decision can be made to have
    the appellant
mis en examen

and refer the case to trial. The appellant
    submits that the Minister should have preferred the opinions of his experts, Mr.
    Stéphane Bonifassi and Prof. Jacqueline Hodgson, over the advice received by
    the Minister from the French authorities. Mr. Bonifassi is a criminal defence
    lawyer in France. Prof. Hodgson is a law professor with expertise in French
    criminal justice.

[192]

Mr. Bonifassi
    expressed the view that the appellant is currently only a mere suspect. He
    asserted, contrary to the information provided by France, that the appellant
    does not have to appear before the
juge dinstruction

for his
    case to be referred to trial. While Mr. Bonifassi conceded that appearing
    before the
judge dinstruction
is the usual way for referring a
    person to trial, he maintained that there is an alternative method. Prof.
    Hodgson expressed a similar view. In her opinion, France was requesting the appellants
    extradition not to stand trial but rather to continue the investigation of the
    case, a case in which he is a mere suspect.

[193]

We disagree. The
    Minister reasonably relied on the information provided by the French
    authorities instead of the opinions of Mr. Bonifassi and Prof. Hodgson. The
    application of French law is a matter for the French authorities. While the
    Minister can take foreign law into account in deciding whether to order surrender,
    he does not make his own assessment of how foreign law should apply, as to do
    so would offend the principle of comity: see
Canada (Justice) v.
    Fischbacher
, 2009 SCC 46, [2009] 3 S.C.R. 170, at para. 54;
France v.
    Ouzghar
, 2009 ONCA 69, 94 O.R. (3d) 601, at para. 16.

[194]

As the Minister
    noted:

It is not for me to resolve any conflict that may exist
    regarding the interpretation and implementation of Frances law and procedure.
    Absent evidence of bad faith or improper motive on the part of France, I am
    entitled and indeed obliged to rely on Frances clarification of its legal
    system.

[195]

The Minister
    refers to
Fischbacher
, among other authorities. In
Fischbacher
,
    at para. 5, Charron J., writing for an eight-member majority, notes that an
    approach requiring the Minister to effectively second-guess the foreign
    states assessment of its own law  finds no support in the [
Extradition
]
    Act and  offends the fundamental principle of comity; see also para. 51.

[196]

In any event, we
    do not understand the matter to be as straightforward as suggested by Mr.
    Bonifassi. He maintains that the combined operation of articles 134, 175 and
    176 of Frances
Code of Criminal Procedure
provides that where an
    arrest warrant has been issued, but the individual cannot be arrested, that
    individual is deemed to have been
mis en examen
and may subsequently
    be referred to trial if the
juge dinstruction
believes that there is
    sufficient evidence to warrant it. The fact is, however, that the search for
    the appellant has not been fruitless. The appellant has now been arrested,
    albeit by the Canadian authorities. The effect of such an arrest on the
    application of articles 134, 175 and 176 of the
Code of Criminal Procedure
is not as clear as Mr. Bonifassi seems to suggest.

[197]

Further, even if
    the
juge dinstruction
has the discretion to refer the appellants
    case to trial
in absentia
, the Minister recognized that it is not for
    Canadian authorities to resolve issues surrounding the application of French
    criminal law and procedure as part of extradition proceedings. As explained by
    the Minister:

[E]ven if the investigating judge has the discretion to close
    the case and refer Mr. Diab to trial without requiring his physical presence in
    France, I have no doubt that the French authorities have followed the
    appropriate and most sensible course of action in this case. France has
    explained that the investigating judge has a truth-seeking function and the
    requirement that the person under investigation be heard before placing them
    under judicial examination is an important part of discharging this role.
    Indeed, it largely appears to be a measure that protects the interests of the
    person who is the subject of an arrest warrant by ensuring that the case
    dossier is complete and includes the defence position. In the face of pending
    extradition proceedings, which may result in Mr. Diabs surrender to France, a
    decision to forego this requirement would seem to be unwise and untimely.

[198]

In conclusion,
    we view the Ministers decision that he had jurisdiction to order the appellants
    extradition to be reasonable.

B.

Trial fairness issues
    (evidence based on intelligence reports and/or potentially tainted by torture)

[199]

The appellants
    second argument on the judicial review application is a
Charter
argument. He submits that his
Charter

rights would be infringed
    by his surrender to face trial in France because the evidence in the French
    proceeding may be based, at least partly, on unsourced and unknown intelligence
    reports and, more particularly, on evidence that may have been obtained by
    using torture.

(1)

The test for refusing surrender and the standard of review


[200]

Section 44(1)(a)
    of the
Extradition Act
provides that the Minister shall refuse to make
    a surrender order if satisfied that the surrender would be unjust or oppressive
    having regard to all the relevant circumstances.

[201]

We note that on
    this ground of appeal, the Ministers decision is attacked under s. 7 of the
Charter
 the right not to be deprived of life, liberty and security of the person
    except in accordance with the principles of fundamental justice. This may
    lessen the level of deference: see e.g.
United States of America v. Kwok
,
    2011 SCC 18, [2001] 1 S.C.R. 532. However, review on a standard of
    reasonableness remains the norm even where the fugitive argues that
    extradition would infringe his or her rights under the
Charter
:
Lake
,
    at para. 34.


[202]

The authorities
    establish that, if surrender would violate s. 7 of the
Charter
, it
    will also bar surrender under s. 44(1)(a). However, the authorities also
    confirm that the test for refusing surrender on s. 7 grounds is a strict one,
    and only precludes surrender in cases of a very exceptional nature where
    surrender to the requesting state would shock the conscience of Canadians and
    be simply unacceptable:
Kindler v. Canada (Minister of Justice)
,
    [1991] 2 S.C.R. 779, at pp. 849-50;
United States v. Burns
, 2001 SCC
    7, [2001] 1 S.C.R. 283, at paras. 66-69;
Canada v. Schmidt
, [1987] 1
    S.C.R. 500, at p. 522; and
Canada (Minister of Justice) v. Pacificador
(2002), 60 O.R. (3d) 685, at para. 47 (C.A.), leave to appeal refused, [2002]
    S.C.C.A. No. 390.

[203]

Provided the
    Minister applies the correct legal test and does not otherwise err in law or
    contravene the principles of natural justice, his or her decision that
    surrender would not be contrary to s. 7 of the
Charter
and s. 44(1)(a)
    of the
Extradition Act
remains entitled to considerable deference.

[204]

The appellants
Charter
argument has two parts and we will address each part separately.

(2)     Use
    of intelligence-based evidence

[205]

The frailties of
    using evidence from international intelligence agencies are universally
    acknowledged. The source of the evidence is unknown.  The circumstances in
    which the evidence was gathered are unknown. Often the intelligence evidence
    itself is unknown because, for national security reasons, the named person is
    denied access to it. In the appellants words, the intelligence information is unsourced,
    uncircumstanced, and unknown. In his submissions to the Minister, the
    appellant argued that the case against him consisted of bald and conclusory,
    anonymous intelligence assertions of his alleged guilt: reasons for surrender,
    at p. 9.
[3]

[206]

As the appellant
    asserts, the far-reaching implication of those frailties is that a named person
     whether in extradition/surrender proceedings, security certificate
    proceedings,
non-refoulement
or other similar proceedings  has no
    meaningful opportunity to challenge, test and refute the information, either in
    the domestic proceeding or at the proposed trial in the requesting state. This
    raises concerns about the violation of deep-seated Canadian and international
    values relating to the principles of fundamental justice, not the least of
    which is the right to a fair trial, including the right of a person in jeopardy
    to know the case he or she is facing and to respond effectively to it.

[207]

The concerns
    with intelligence-based information are reflected in Canadian and international
    law and in the reports of a number of non-governmental organizations and public
    inquiries:
Charkaoui v. Canada (Citizenship and Immigration)
, 2007 SCC
    9, [2007] 1 S.C.R. 350, at para. 61;
International Covenant on Civil and
    Political Rights
, 19 December 1966, 999 U.N.T.S. 171, art. 14(3)(e); Dennis
    OConnor,
Report of the Events Relating to Maher Arar
(Ottawa:
    Minister of Public Works and Government Services, 2006); Frank Iacobucci,
Internal
    Inquiry Into the Actions of Canadian Officials in Relation to Abdullah Almalki,
    Ahmad Abou-Elmaati and Muayyed Nureddin
(Ottawa: Minister of Public Works
    and Government Services, 2010); Human Rights Watch, Preempting Justice 
    Counterterrorism Laws and Procedures in France (New York: Human Rights Watch,
    2008); Human Rights Watch, No Questions Asked: Intelligence Cooperation with
    Countries that Torture

(New York: Human Rights Watch, 2010); and
    International Commission of Jurists, Assessing Damage, Urging Action: Report
    of Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights
    (Geneva: International Commission of Jurists, 2009).

[208]

The appellant
    and the CCLA argue that it would be unacceptable, as a matter of principle, to
    extradite someone where there is the potential that unsourced intelligence
    information will be used against the person at the persons trial in the
    requesting state. Although they recognize the importance of Canadas
    international obligations based on comity and treaties, they submit that these
    considerations can never trump the
Charter
obligation to protect an
    individual from being sent abroad to face a situation that fails to accord with
    our most basic expectations of fairness and decency.

[209]

We agree. However,
    the key consideration is the potential for that situation to arise.  We do not
    think there should be a categorical exclusionary rule against resort to
    intelligence-based information in these kinds of situations. To impose such a
    rule would effectively eviscerate the ability of Canadian and international
    authorities to bring terrorists to justice because the evidence in such cases
    is very often sourced through international intelligence agencies. The central
    issue is the risk that such evidence will be used at trial against the named
    person in a fashion that fails to protect the persons fundamental right to
    make answer and defence and have the benefit of a fair trial.

[210]

The appellant and the CCLA rely on the decision of the
    Supreme Court of Canada in
Charkaoui
. In that case, Mr. Charkaoui
    argued that the security certificate regime then

in place under the
Immigration
    and Refugee Protection Act
, S.C. 2001, c. 27, was unconstitutional

because
    it contravened the s. 7
Charter
rights of persons facing detention and
    deportation for terrorism-related reasons.

The Court agreed.

[211]

Central to the
    Courts conclusion was the view that the security certificate system, as then
    designed, provided no adequate alternative safeguards and unnecessarily
    compromised the right to a fair hearing by denying the person named in the
    certificate the opportunity to know the case put against him or her and,
    therefore, deprived that person of the ability to challenge the governments
    case. Interestingly  given the appellants attack on the role of the French
juges
    dinstruction
here  one of the factors taken into account by the Court in
    finding the security certificate system wanting was that Canadian judges, as
    the system was then structured, were not afforded the power to independently
    investigate all relevant facts that true inquisitorial judges enjoy:
Charkaoui
,
    at para. 51.

[212]

Charkaoui
affirms, however, that [t]he right to know the case to be met is not absolute:
    at para. 57. The question is whether there are adequate safeguards. The Court
    reflected on this in the context of national security and foreign intelligence,
    at para. 61:

Fundamental justice requires substantial compliance with the
    venerated principle that a person whose liberty is in jeopardy must be given an
    opportunity to know the case to meet, and an opportunity to meet the case.  Yet
    the imperative of the protection of society may preclude this.
Information
    may be obtained from other countries or from informers on condition that it not
    be disclosed.  Or it may simply be so critical that it cannot be disclosed
    without risking public security.  This is a reality of our modern world.
If s. 7 is to be satisfied, either the person must be given the necessary
    information, or a substantial substitute for that information must be found.
    [Emphasis added.]

[213]

After
Charkaoui
,
    the Government of Canada implemented a process involving special advocates,
    similar to the mechanism used in the United Kingdom  something alluded to by
    the Supreme Court of Canada as an adequate substitute. Under this system, a
    Federal Court judge appoints a special advocate who is not a party to the
    proceedings or counsel to the named person, but whose role is to protect the interests
    of the named person. The special advocate has access to the secret materials
    and may cross-examine witnesses and make submissions to the Court, but may not
    disclose the information to the named person.

[214]

We conclude,
    therefore, that there is no categorical exclusionary rule regarding resort to
    intelligence-based evidence in surrender cases. The Minister must be satisfied,
    however, that adequate protections exist in the requesting state to ensure the
    named person is subject to a fair prosecution.

[215]

Here, the Minister
    was satisfied that was the case, and we cannot say his decision in this regard
    was unreasonable.

[216]

The Minister
    began by addressing the concerns put forward by the appellant about the French
    system. The appellant submitted to the Minister that:

·

French
juges dinstruction
cannot properly determine the
    reliability of the intelligence allegations made against him because they are
    not allowed to know the sources of the allegations but, rather, presume that
    all information received from intelligence officers is reliable;

·

The defence cannot effectively probe or question the underlying
    material in an intelligence report, and intelligence officers are not required
    to answer when cross-examined; and

·

French courts use intelligence as evidence to prosecute
    terrorists and have admitted torture-derived statements as evidence in the
    past.

[217]

In response to
    these concerns, the Minister made inquiries of the French officials. Frances
    Ministry of Justice provided him with information regarding the features and
    protections of the French system afforded to the appellant.  The Ministry
    represented that:

·

The
juge dinstruction

is tasked with gathering
    the evidence and combines everything, including the intelligence reports, into
    the case dossier, of which the appellant will have a copy;

·

Intelligence allegations alone cannot be used to refer the
    appellants case to trial or to convict him, but, rather, must be corroborated
    by traditional evidence;

·

The appellant may raise concerns with the intelligence evidence
    in his first appearance; he may request to have the
juge dinstruction
question its sources during the judicial examination stage; and he may call the
    sources at trial;

·

The appellant has the right to appeal the
juge
    dinstructions
and the trial courts decisions, including any decision
    not to call or challenge the intelligence sources, and the right, as well, to
    appeal to the European Court of Human Rights; and

·

The appellant will be presumed innocent until he is convicted
    after trial; he will have access to legal representation throughout; he can
    provide the
juge dinstruction
with any document to be included in the
    case dossier; he can direct the
juge dinstruction
to investigate on
    his behalf; and he can call on any witnesses he chooses.

[218]

Notwithstanding
    the appellants evidence challenging the adequacy of these protections and
    assurances, the Minister concluded that it was not his role to resolve any
    conflicts in how Frances laws and procedures are interpreted and implemented. Rather,
    absent evidence of bad faith or improper motive by France, the Minister was
    entitled and obliged to rely on Frances explanation of its legal system and its
    legal safeguards. The Minister was satisfied that the French system, while
    different from the Canadian or English common law systems, has substantial
    checks and balances at all stages to protect the appellants due process
    rights.

[219]

This was not an
    unreasonable approach, and it reflects the prevailing case law. To suggest that
    the Minister cannot rely on representations by French authorities about French
    law  in the absence of compelling evidence of bad faith to the contrary 
    would be to discredit a respected extradition partner with a long history of
    upholding the rule of law. It would be a reflection of the gravest possible
    kind, not only upon the motive and actions of the responsible Government, but
    also impliedly upon the judicial authorities of a  friendly Power:
Re
    Arton
, [1896] 1 Q.B. 108, at p. 115, cited with approval in
Schmidt
,
    at pp. 526-27.

[220]

In addition, the
    appellant will be afforded the protection of the
Convention for the
    Protection of Human Rights and Fundamental Freedoms
, 4 November 1950, 213
    U.N.T.S. 221 (
European Convention on Human Rights
), the
International
    Covenant on Civil and Political Rights
and the
Convention Against
    Torture
,

which ensure
    the right to a fair trial and the prohibition against torture-derived evidence.
    France is party to all three conventions.

[221]

We would not
    give effect to this ground of review.

(3)     Dealing with the potential use of torture-derived evidence in the
    surrender context

(i)      The appellants position

[222]

The appellants
    second argument on this aspect of the judicial review is that it was
    unreasonable for the Minister to order his surrender to France because there is
    a real risk that the intelligence-sourced evidence on which France will rely in
    prosecuting him includes evidence obtained through means of torture.

[223]

In making this
    submission, he and the interveners again

recognize that two competing
    dynamics are in play  Canadas international comity and treaty obligations, on
    the one hand
,
and, on the other hand, the need to protect individuals against
    violations of their fundamental rights if that is the consequence of the
    surrender decision. They argue, however, that particular difficulties arise in
    terrorism cases where a person facing surrender alleges that evidence gathered
    through the efforts of international intelligence agencies has been derived
    through means of torture. Torture is difficult to prove, and
    intelligence-sourced evidence is,

as discussed above, unknown,
    unsourced, and uncircumstanced. It is, therefore, difficult to attack, and
    requiring a person facing surrender to show a sufficient link between the
    impugned evidence and torture to any significant standard of proof is unfair
    and unrealistic.

[224]

For these
    reasons, the appellant and the interveners urge us to adopt a two-stage
    framework for these purposes. They submit that, in the initial stage, a person
    facing surrender need only establish a plausible connection between the
    challenged evidence and the use of torture. Once this is done, they contend,
    the Minister is then obliged to undertake a further investigation and to
    satisfy himself or herself through appropriate inquiries of and/or appropriate
    assurances from the requesting state that the evidence to be relied upon at
    trial has not been obtained through the use of torture.

(ii)      A two-step
    inquiry and the rationale for it

[225]

We agree that a
    two-step approach should be adopted in cases involving the Ministers decision
    regarding surrender where the person facing surrender alleges that he or she may
    face prosecution on the basis of intelligence-sourced evidence tainted by
    torture. Canadian and international jurisprudence supports this view.

[226]

A two-part
    inquiry where the use of torture-derived evidence is in play has been adopted
    by the Federal Court of Canada in two decisions involving the same individual:
Mahjoub
    v. Canada (Minister of Citizenship and Immigration)
, 2006 FC 1503, [2007]
    4 F.C.R. 247, at pp. 263-66 (
per
Tremblay-Lamer J.); and
Mahjoub
    (Re)
, 2010 FC 787, at paras. 51-59 (
per
Blanchard J.). It is also
    the approach favoured in the United Kingdom and in the jurisprudence of the European
    Court of Human Rights: see, for example,
A & Others v. Secretary of
    State for the Home Department
, [2005] UKHL 71; and
Othman (Abu Qatada)
    v. the

United Kingdom
, Application No. 8139/09 (17 January 2012)
    (Eur. Ct. H.R.).

[227]

These authorities
    all agree that the initial threshold to be met by the person raising the
    concern about the use of torture-derived evidence is a low one. They describe
    this threshold in various ways as a plausible connection, a plausible
    explanation or a plausible reason.

[228]

The same
    authorities are not consistent, however, in their approach to the second stage
    of the inquiry. Some say the onus is on the decision-maker to be satisfied on a
    balance of probabilities that the evidence to be used against the person raising
    the concern is not tainted by torture. Others use the terminology of real
    risk or substantial risk. Still others refer to reasonable grounds. Some
    combine all of these notions at the second stage of the inquiry.

[229]

We would
    simplify these somewhat differing approaches by adopting a plausible
    connection for the first step of the inquiry and a real risk for the second
    step. Accordingly, in our view, the two-step inquiry is properly framed in this
    way: (i) the person facing surrender, and challenging such evidence, must first
    show that there is a plausible connection between that evidence and the use
    of torture; and, (ii) if that threshold is met, the Minister is then called
    upon to make further inquiries and satisfy himself or herself  on the basis of
    the record, any further information obtained and/or assurances received from
    the requesting state  that there is no real risk that torture-derived
    evidence will be used in the proposed foreign proceeding. If the Minister is
    satisfied on that basis, the surrender order should be made; if not, surrender should
    generally be refused.

[230]

Our reasons for
    adopting this test are as follows.

[231]

First, we accept
    that a person facing surrender in these circumstances is placed in an untenable
    position if required to prove on a balance of probabilities or any similar
    standard that torture-derived evidence sourced through intelligence agencies
    will be used in the foreign proceedings. To impose a threshold of that nature
    in such circumstances would be unrealistic and unfair. As Lord Bingham cogently
    put it in
A & Others
, at para. 59, it is inconsistent with the
    most rudimentary notions of fairness to blindfold a man and then impose a
    standard which only the sighted could hope to meet.

[232]

Secondly, we
    accept that extradition proceedings are not intended or expected to be
    determined on the same footing as criminal proceedings in the requesting state,
    for which extradition is sought. The jurisprudence is clear that [e]xtradition
    proceedings are not trials, but are intended to be expeditious procedures to
    determine whether a trial should be held:
McVey
,

at p. 551. This view is as
    relevant to the surrender stage as to the extradition hearing, in our opinion. It
    tells against applying a trial-like threshold of proof, such as a balance of
    probabilities, to the surrender process.

[233]

Finally  given
    these factors  the challenge is to formulate a process that honours Canadas
    obligations internationally and the need to defend society from the ravages of
    terrorism, while at the same time protecting Canadians from unacceptable
    violations of their
Charter
rights. We think the two-step process
    referred to above best reconciles these competing tensions.

[234]

Although the
    test for refusing surrender on s. 7 grounds is a strict one and is only met
    in very exceptional cases, it is beyond debate that torture-derived evidence
    may not be used in legal proceedings and cannot be relied upon by a state
    seeking extradition or being asked to extradite. Article 15 of the
Convention
    Against Torture
to which both Canada and France are signatories  makes
    this clear. It provides that parties are obliged to ensure that any statement which
    is established to have been made as a result of torture shall not be invoked as
    evidence in any proceedings, except against a person accused of torture as
    evidence that the statement was made. Section 269.1(4) of the
Criminal
    Code
, R.S.C. 1985, c. C.46, incorporates this prohibition into Canadian
    domestic law. To similar effect is s. 83(1.1) of the
Immigration and
    Refugee Protection Act
, which excludes from evidence in deportation
    proceedings any information that is believed on reasonable grounds to have
    been obtained as a result of the use of torture.

[235]

This exclusion
    of torture-derived evidence flows from societys abhorrence of torture
    generally. Torture  as the Supreme Court of Canada observed in
Suresh v.
    Canada (Minister of Citizenship and Immigration)
, 2002 SCC 1, 1 S.C.R. 3,
    at para. 51  is so inherently repugnant that it could never be an appropriate
    punishment, however egregious the offence. [It] is an instrument of terror and
    not of justice. As Lord Hoffman expressed it in
A & Others
, at
    paras. 82 and 83:

The use of torture is dishonourable.  It corrupts and degrades
    the state which uses it and the legal system which accepts it. [Its rejection]
    by the common law has a special iconic importance as the touchstone of a humane
    and civilised legal system.

[236]

The use of
    torture-derived evidence is also dishonourable. Civilized society rejects both
    the use of torture itself and the use of torture-derived evidence. In
Othman
,
    at para. 267, the ECHR concluded that the admission of torture evidence is
    manifestly contrary  to the most basic international standards of a fair
    trial and that it would be a flagrant denial of justice if such evidence were
    admitted in a criminal trial. At para. 264, the ECHR was forceful in
    explaining why torture-derived evidence was incompatible with justice: The
    trial process is a cornerstone of the rule of law. Torture evidence damages
    irreparably that process; it substitutes force for the rule of law. Torture
    evidence is excluded to protect the integrity of the trial process and,
    ultimately, the rule of law itself.

[237]

Canada shares
    these values. Torture and torture-derived evidence undermine the basic right to
    a fair trial and their use therefore violates the principles of fundamental justice.
    This underlying concern for human rights must be accounted for in the surrender
    process because the life, liberty and security interests protected under s. 7
    of the
Charter
have to do not only with the act of extraditing but
    also with the potential consequences of that act: see
Burns
, at para.
    60; and
Schmidt
, at p. 522. As a result, Canada must neither tolerate
    resort to torture or the use of torture-derived evidence domestically, nor
    participate in any action that would clearly permit that to occur in a foreign
    state.

[238]

Accordingly,
    just as the Minister should generally decline to deport refugees where, on the
    evidence, there is a substantial risk they will be tortured if that happens (see
Suresh
, at para. 77) so, too, in our view, should the Minister
    generally decline to order surrender where there is a substantial risk that
    torture-derived evidence will be used against the person facing prosecution in
    the requesting state.

[239]

All of these
    considerations favour imposing the two-stage process outlined above  with a
    relatively low plausible connection threshold on the person initially asserting
    the evidence/torture link; and a higher, more rigorous, real risk standard on
    the Minister in the second stage of the inquiry. In our view, this approach
    strikes an appropriate balance. It accommodates both Canadas constitutional
    commitment to liberty, fair process and international human rights and Canadas
    obligations to combat terrorism, deny safe haven for terrorists and protect
    public safety: see
Suresh
, at para. 77.

[240]

These goals are
    accomplished, partially, by the deference that is afforded to the Ministers
    decision and by the high shock the conscience test for refusing surrender on
    s. 7 grounds. They are accomplished partially, as well, by tempering the burden
    a person facing surrender must meet in showing a sufficient link between the
    evidence in question and torture and, when that is done, by shifting the burden
    to the Minister to determine whether there is a real risk of torture-derived
    evidence being used against the person sought in the foreign proceedings. When
    the Minister determines there is a real risk of that happening, he or she
    should generally refuse to order surrender. In this way, the process takes into
    account the inherent difficulties faced by a person seeking to contest the use
    of unsourced, uncircumstanced and usually unknown evidence derived from
    international intelligence agencies, while at the same time honouring basic
    Canadian and international democratic values.

(iii)

Plausible
    connection

[241]

How, then, does
    the person facing surrender show there is a plausible connection between the
    evidence in question and the use of torture? As noted above, the threshold is
    necessarily a low one. It does not require the person to prove anything in
    the conventional sense:
A & Others
, at para. 55 (
per
Lord
    Bingham) and para. 116 (
per
Lord Hope). Plausible connection is a
    threshold that lies somewhere between mere suspicion and balance of
    probabilities, and more towards the former than the latter on the spectrum. We
    take the phrase plausible connection to encompass other terms such as
    plausible reason to believe or a plausible explanation for such a connection.

[242]

We agree with
    the intervener, the BCCLA, that a realistic and pragmatic approach should be
    taken in determining whether the person facing surrender has met the plausible
    connection threshold. The circumstances of the particular case are important. Expecting
    a person facing surrender to be able to show a direct nexus between the
    evidence and the use of torture would be unrealistic. At the same time,
    something more than mere generalized assertions of human rights violations by
    agents of the requesting state (or by agents of the state providing the
    evidence to the requesting state) will usually be required. Were it not so, the
    mere involvement of a state with a questionable human rights record would be
    enough to trigger the Ministers obligations to satisfy himself or herself  a
    standard that would not give sufficient weight to Canadas international comity
    and treaty obligations regarding extradition.

[243]

There may be
    cases where, as the House of Lords suggested in
A & Others
, at
    para. 56, showing the impugned evidence will come from one of those countries
    widely known or believed to practice torture will suffice to satisfy the plausible
    connection threshold. We think, however, the person facing surrender will
    normally have to point, in addition, to some objective factual basis indicating
    a connection between the torture-derived evidence in question and the
    particular circumstances of the case.

(iv)

Real risk

[244]

Once the
    plausible connection threshold is crossed, the onus shifts to the Minister who
    must satisfy himself or herself  on the basis of the record of the case and/or
    any further information or assurances provided by the requesting state  that
    there is no real risk that torture-derived evidence will be used at trial in
    the requesting state.

[245]

A real risk,
    its twin sibling, a substantial risk, and its cousin reasonable grounds or
    reasonable basis for belief,  all lie in a similar range of

the standard
    of proof spectrum  significantly more onerous than a plausible connection
    but less so than a balance of probabilities. We see no need to make fine
    distinctions among them for these purposes. The choice to be made at this stage
    of the analysis is between real risk and balance of probabilities. Support
    may be found for both in domestic and international jurisprudence. None of the
    jurisprudence deals specifically with the requirements relating to the exercise
    of the Ministers discretion to order or refuse to order surrender under the Act,
    however.

[246]

At the end of
    the day, we adopt real risk, as opposed to the somewhat higher standard of
    balance of probabilities, for this part of the surrender analysis. In our
    view, the real risk threshold is more consistent with the prevailing opinion
    in the authorities and more appropriately balances the competing tensions
    between Canadas international comity and extradition obligations, on the one
    hand, and its constitutional mandate to protect against
Charter
violations, on the other hand.

[247]

With the
    exception of the majority in
A & Others
and some other decisions
    in the United Kingdom, European courts have generally accepted the application
    of the real risk threshold as the ultimate test  recognizing that it
    involves a lower threshold than more likely than not  in cases involving the
    use of torture-derived evidence and similar problems relating to proceedings
    tainted by torture. Indeed, in
Othman
, the ECHR rejected the majority
    view in
A & Others
that a balance of probabilities was the
    ultimate test. It concluded that Mr. Othmans deportation to Jordan would
    violate his right to a fair trial in Jordan because there was a real risk of
    the admission of evidence obtained through torture of others. The ECHR is
    responsible for interpreting the
European Convention on Human Rights
for
    all its signatories, which include the United Kingdom and France.

[248]

Othman
is consistent with earlier decisions of the ECHR applying the real risk test:
    see, for example,
Soering v. The United Kingdom
, Application No.
    14038/88 (7 July 1989), at para. 91 (Eur. Ct. H.R.); and
Saadi v. Italy
[GC], Application No. 37201/06 (28 February 2008), at para. 140 (Eur. Ct. H.R.).
    It is also consistent with the approach taken by international expert bodies in
    the context of
non-refoulement
to torture or other ill treatment as
    well as to the risk of the use of torture-derived evidence: United Nations
    Human Rights Committee,
General Comment No. 31: Nature of the General Legal
    Obligation Imposed on States Parties to the Covenant
, 80th Sess., U.N.
    Doc. CCPR/C/21/Rev.1/Add. 13, (2004), at para. 2; and United Nations Committee
    Against Torture,
Summary Record of the First Part (Public) of the 424th
    Meeting
,

24th Sess., U.N. Doc. CAT/C/SR.424, (2001), at para. 17.

[249]

In two reports
    to the United Nations, in 2006 and 2011, the incumbent UN Rapporteur on torture
    expressed the view that, once the plausible connection threshold is met, the
    decision-maker must determine whether there is a real risk that the impugned
    evidence has been obtained by torture: Manfred Nowak,
Report of the Special
    Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or
    Punishment
, U.N. Doc. A/61/259, (2006); and Juan E. Méndez,
Report of
    the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
    Treatment or Punishment
, Human Rights Council, 16th Sess., U.N. Doc. A/HRC/16/52,
    (2011), at para. 53.

[250]

As counsel for
    the Minister of Justice points out, there are Canadian authorities that apply a
    balance of probabilities test in the extradition, deportation and security
    certificate contexts. In his decision, the Minister relied particularly on two
    of them:
United States of America v. Khadr
, 2010 ONSC 4338, 258 C.C.C.
    (3d) 231, affd 2011 ONCA 358, 273 C.C.C. (3d) 55, leave to appeal refused,
    [2011] S.C.C.A. No. 316; and
India v. Singh
(1996), 108 C.C.C. (3d)
    274 (B.C.S.C.). In our opinion, however, neither authority supports using the
    balance of probabilities standard to prove torture-derived evidence in the
    surrender context. Neither involved the discretionary decision of the Minister
    to order or refuse to order surrender.

[251]

Mr. Singh was a
    person sought for extradition by the Government of India on a charge of
    conspiracy to commit murder in connection with a series of violent civil
    disturbances that occurred in Punjab. He succeeded in excluding an inculpatory
    statement made by one alleged co-conspirator who was detained in India, on the
    basis that the statement had been obtained as a result of the use of torture. The
    committal judge applied a balance of probabilities standard in arriving at this
    conclusion.

[252]

We note,
    however, that the application of the balance of probabilities threshold in
Singh
was done with counsels consent and without any analysis of other alternatives.
    We need not decide here whether the balance of probabilities is the test to be
    applied where allegedly torture-derived evidence is attacked by the person
    sought in the committal proceedings. In addition, unlike in most extradition
    situations, Mr. Singh knew the content of the allegedly torture-derived
    statements and the identities of those who made them, and was therefore in a
    position to respond and to respond with a more focused attack. He was able to describe
    in specific terms the type of torture inflicted on his alleged co-conspirator. Moreover,
    the torture allegation was not denied by the Indian authorities. It was not
    difficult, in those circumstances, to hold him to a higher test.

[253]

In
Khadr
,
    the U.S. sought the extradition of Abdullah Khadr to stand trial on charges of
    terrorism, alleging that he had procured various munitions and explosive
    components to be used by Al Qaeda against the U.S. and Coalition Forces in
    Afghanistan. Mr. Khadr sought, and obtained, a stay of the extradition
    proceedings based on the physical abuse and mistreatment he had endured at the
    hands of the Pakistani intelligence agency. In imposing the stay, the
    extradition judge held Mr. Khadr to a balance of probabilities standard to show
    that his mistreatment by the authorities amounted to torture  a finding that the
    extradition judge had little difficulty arriving at, since he viewed the human
    rights violations in question as both shocking and unjustifiable: at para.
    150. His decision was upheld in this court, but the appeal did not turn on the
    standard of proof to be applied:
United States of America v. Khadr
,
    2011 ONCA 358, 106 O.R. (3d) 449.

[254]

A number of
    other Canadian authorities are relevant, but not helpful.  In both
Harkat
    (Re)
, 2005 FC 393, 261 F.T.R. 52, and
Charkaoui (Re)
, 2004 FC
    1031, 260 F.T.R. 238, the Federal Court held that the named persons had to
    prove that various confessions, which they sought to exclude, had been obtained
    by torture on a balance of probabilities. Again, however, neither case involved
    the Ministers decision to surrender or not. In addition, both cases predate
    the framework since adopted by the Federal Court in the
Mahjoub
decisions.

[255]

In
United
    States of Mexico v. Hurley
(1997), 35 O.R. (3d) 481 (C.A.), the named
    person resisted extradition and surrender on the grounds that he faced a risk
    of potential persecution in Mexico because of his sexual orientation. He argued
    that he need only establish a reasonable chance that he would be persecuted
    in Mexico. The Court concluded he had to show a likelihood of persecution on a
    balance of probabilities.

[256]

Hurley
is distinguishable from the present case on two bases, however. First, it

did
    not involve extradition and surrender to a state where the named person would
    face trial on the basis of unknown, unsourced and uncircumstanced intelligence
    reports. Evidence of persecution relating to homosexuality could be obtained in
    other ways. Secondly,
Hurley
predates the evolution of the law in Canada
    and Europe in the first decade of this century.

[257]

Li v. Canada (Minister of Citizenship and Immigration)
,
    2005 FCA 1, [2005] 3 F.C.R. 239, leave to appeal refused, [2005] S.C.C.A. No.
    119, affg
Li v. Canada (Minister of Citizenship and Immigration)
, 2003
    FC 1514, [2004] 3 F.C.R. 501, involved the dismissal of a claim for refugee
    status. The claim was based on a fear of persecution on religious and other
    grounds in the refugee claimants home state. The Immigration and Refugee Board
    rejected the claim and concluded that Mr. Li was not a person in need of
    protection under the
Immigration and Refugee Protection Act
. The
    decision was upheld in both the Federal Court and the Federal Court of Appeal. Each
    court rejected Mr. Lis argument that he need only show a reasonable chance
    of torture or of a risk to life in order to meet the test. They applied a
    balance of probabilities test in answering the following question: what is the
    requisite degree of risk of torture envisaged by the expression substantial
    grounds for believing that in the
Immigration and Refugee Protection Act
?

[258]

We do not view
Li
as determinative of the issues before us, however. The Federal Court of Appeal
    relied heavily upon its own earlier decision in
Suresh v. Canada (Minister
    of Citizenship and Immigration)
, [2000] 2 F.C. 592, acknowledging that
    that decision was reversed on other grounds: [2002] 1 S.C.R. 3. Respectfully,
    however, we do not read the Supreme Courts decision in
Suresh

as
    supporting a test requiring a refugee to establish a risk of torture on a
    balance of probabilities.

[259]

Mr. Suresh was a
    Convention refugee from Sri Lanka who had applied for landed immigrant status. The
    Canadian government detained him and initiated deportation proceedings. The
    decision to do so was based on the opinion of the Canadian Security
    Intelligence Service that Mr. Suresh was a threat to national security because
    he was a member of, and fundraiser for, the Liberation Tigers of Tamil Eelam,
    an organization believed to engage in terrorist activities in Sri Lanka. Its members
    were also subjected to torture in Sri Lanka. Mr. Suresh argued he should not be
    deported for that reason.

[260]

The Supreme
    Court of Canada did not hold Mr. Suresh to a balance of probabilities standard
    in assessing whether there was sufficient evidence of a threat of torture if he
    were deported. Section 53(1)(b) of the former
Immigration Act
, R.S.C.
    1985, c. I.2, prohibited removing a Convention refugee from Canada to a
    country where the persons life or freedom would be threatened for reasons of
    race, religion, nationality, membership in a particular social group or
    political opinion unless  the Minister is of the opinion that the person
    constitutes a danger to the security of Canada. In reviewing the Ministers
    decision of whether Mr. Suresh posed a risk to Canadas security and the
    companion question of what legal test should apply regarding the risk of
    torture, the Court used the language of a substantial risk of torture: see, e.g.,
    para 27.  At para. 77, the Court said:

In Canada, the balance struck by the Minister must conform to
    the principles of fundamental justice under s. 7 of the
Charter
.  It
    follows that insofar as the
Immigration Act
leaves open the
    possibility of deportation to torture, the Minister should generally decline to
    deport refugees
where on the evidence there is a substantial risk
of
    torture. [Emphasis added.]

[261]

The decision of
    Blanchard J. in
Mahjoub (Re)
is consistent with this approach and with
    the international authorities reviewed above.

[262]

Mr. Mahjoub was
    the subject of a security certificate naming him as a person inadmissible to
    Canada for reasons of national security. Prior to the hearing on the
    reasonableness of the certificate, he brought a preliminary motion attacking
    the admissibility of information relied upon by the Ministers in question.  He
    sought to exclude the information on the basis that it was believed on
    reasonable grounds to have been obtained as a result of torture or cruel,
    inhuman or degrading treatment or punishment (CIDT), and was thereby
    inadmissible pursuant to ss. 83(1)(h) and 83(1.1) of the
Immigration and
    Refugee Protection Act
.

[263]

Justice
    Blanchard acknowledged, on the one hand, the difficulties facing a person such
    as Mr. Mahjoub who is unable to access much of the information relied on
    against him and, on the other hand, the states obligation to protect the
    security of the public in Canada together with the fundamental need to ensure
    the fairness of the proceeding and the integrity of the administration of
    justice: at para. 51. He noted that the Ministers were in a far better
    position than Mr. Mahjoub to know and address issues concerning the provenance
    of the information and the circumstances surrounding its collection: at para
    56. In conclusion, Blanchard J. adopted the plausible connection/reasonable
    grounds paradigm for determining whether evidence was admissible or
    inadmissible under the Act because of torture allegations. At para. 59, he
    said:

Where torture or CIDT is alleged by the named person, it is for
    the named person to raise the issue that information relied upon by the
    Ministers is obtained as a result of the use of torture or CIDT.  In my view,
    to meet this initial burden, the named person need only show a
plausible
    connection
between the use of torture or CIDT and the information
    proffered by the Ministers.  Depending on the cogency of the evidence of the
    named person, the Ministers may adduce responding evidence.  The Court will
    then, after hearing submissions, decide on all of the evidence before it
    whether the proposed evidence is
believed on reasonable grounds
to
    have been obtained as a result of the use of torture or CIDT. [Emphasis added.]

[264]

As we have stated above, we draw no material distinction
    between reasonable grounds and real risk or substantial risk for purposes
    of analyzing the Ministers decision regarding surrender. Substantial is
    something that has real importance: Katherine Barber, ed.,
Canadian
    Oxford Dictionary
, 2d ed. (Don Mills, ON: Oxford University Press, 2004),
    at p. 1552, or a real existence: William Little et al., eds.,
The

Shorter
    Oxford English Dictionary
, 3d ed. (New York: Oxford University Press,
    1973), at p. 2172. A reasonable basis for belief connotes a bona fide belief
    in a serious possibility based on credible evidence:
Chiau v. Canada

(Minister
    of Citizenship and Immigration)
, [2001] 2 F.C. 297, at para. 60, leave to
    appeal refused, [2001] S.C.C.A. No. 71, and is objectively grounded on
    compelling and credible evidence or information:
Jaballah (Re)
, 2010
    FC 79, [2011] 2 F.C.R. 145, at para. 43. All of these concepts are more or less
    similarly situated on the legal test spectrum in our view, and need not be
    distinguished for these purposes.

(v)

The application of the two-stage inquiry in this case

[265]

This brings us
    to the circumstances of this case.

[266]

The appellant
    submitted that French intelligence officials had worked closely with Syrian
    intelligence in the 1980s in exchanging information on various terrorist
    organizations based in Lebanon, where the appellant was living at the relevant
    time. He also submitted that Syria has a well-documented record of using torture
    to gather information. From this, he argued that there was a plausible
    connection linking the impugned intelligence reports in his case with
    torture-derived evidence from Syria and, therefore, that the Minister had a
    duty to satisfy himself that the intelligence information was not obtained
    through torture.

[267]

The Minister
    acknowledged the two-step approach the appellant was advancing. However, the
    Minister believed that the standard to be met by a person claiming the use of
    torture-derived evidence was a balance of probabilities standard. As we have
    explained above, the Minister was wrong in law to subject the appellants claim
    at the initial inquiry stage to a balance of probabilities standard. Nevertheless,
    that error was not fatal to the Ministers overall determination that surrender
    should not be refused in these circumstances.

[268]

Indeed, after
    finding that the appellants claim could not succeed on a balance of
    probabilities, the Minister still considered whether the claim met the plausible
    connection threshold. The Minister concluded it did not. He emphasized that,
    even in the various reports relied upon by the appellant, France had at all
    times denied any intelligence-sharing arrangement. In any event, he determined,
    even if such an arrangement had existed, it did not reasonably follow that the
    specific intelligence allegations against the appellant were the product of
    torture by Syria. Since the appellant had failed to establish a plausible
    connection between the intelligence evidence against him and the use of
    torture, the Minister said it was unnecessary for him to make any further
    inquiries of, or seek further assurances from, France.

[269]

There are
    aspects of the Ministers reasons which suggest he stopped at the plausible
    connection stage, having concluded that the appellant had not met even that
    threshold. However, the reasons, read as a whole, show that the Minister
    undertook a deeper inquiry.

[270]

After receiving the
    appellants initial submissions, the Minister in fact made further inquiries of
    the French officials. Consequently, he was provided with further information
    and certain assurances about the way in which the French system operates. That
    information and those assurances are referred to at greater length in the
    portion of the Ministers reasons dealing specifically with the use of
    intelligence-based evidence. However, those same assurances and information
    also informed the Ministers decision on the use of torture-derived evidence. In
    this way, the Minister did go beyond the initial step in the inquiry in
    arriving at his decision to order surrender.

[271]

The following
    excerpts from the Ministers reasons confirm that his analysis of the
    torture-derived evidence issue was informed by information obtained from
    further inquiries conducted after the appellants initial submissions:

Mr. Diab is not being surrendered to a country that condones
    the use of torture-derived evidence or that is known to use evidence that is
    the product of torture in its criminal proceedings.
As I formerly stated
[in the portion of his reasons dealing with the use of intelligence-based
    evidence and analysing the further information and assurances he had received
    from France], while Frances legal system is different from that which operates
    in Canada, it is nevertheless one that comports with our overall concepts of
    justice and the duty to uphold constitutional standards, including with respect
    to banning the use of torture-derived evidence to detain and try accused
    persons.

As a party to the UNCAT, France has a duty to,
inter alia
,
    ensure that any statement which is established to have been made as a result
    of torture shall not be invoked as evidence in any proceedings, except against
    a person accused of torture as evidence that the statement was made.  In
    addition,
as stated previously
, France has made a declaration under
    Article 22 that they agree to allow individual complaints to the Committee
    Against Torture.  In my view, this demonstrates Frances sincere commitment to
    upholding the principles underlying the UNCAT, including the ban against the
    use of torture-derived evidence.

Absent clear evidence of
mala fides
or improper motive
    on the part of the French authorities, I must assume that France has acted
    lawfully in the course of their investigation into the Copernic bombing and in
    compliance with their obligations under the UNCAT (
R. v. Power
,

[1994]
    1 S.C.R. 601;
United States of America v. Cobb
, [2001] 1 S.C.R. 587). 
    This includes the manner in which evidence has been gathered in Mr. Diabs case
    and the manner in which that evidence will be used if the investigating judge
    refers his case to trial.

As I stated previously
, any objections Mr. Diab may
    have with Frances use of intelligence reports in the case dossier are matters
    which he should address with the French authorities, including the
    investigating judge, the trial court and the French courts of appeal.  He may
    also pursue a claim of torture-derived evidence in the ECHR and France may be
    made the subject of a complaint to the Committee Against Torture.  Therefore, Mr.
    Diab will have ample opportunities to address his concerns.

In these circumstances, I am satisfied that it would be neither
    shocking to the Canadian conscience nor simply unacceptable to surrender Mr.
    Diab to France. [Emphasis added.]

[272]

These passages,
    together with others in his reasons as a whole, clearly show that the Minister
    considered both the information provided by the appellant and the additional
    information and assurances he obtained from France following the appellants
    submissions. In short, while the Minister may have conflated the two steps of
    the inquiry, he in reality followed the two-step paradigm we have concluded is
    called for in the authorities. It was with the benefit of this additional
    information and assurances received that the Minister concluded that France
    does not condone the use of torture-derived evidence and is committed to
    upholding the ban against the use of torture-derived evidence, and that any
    concerns the appellant may have with respect to the possible use of such
    evidence can be addressed through appropriate mechanisms available to him there.
    Although the Minister does not expressly say that he is satisfied that there is
    no real risk that torture-derived evidence will be used, it is apparent from
    the conclusions he reached that he was indeed so satisfied. That finding is
    well supported by the record and the absence of the words no real risk does
    not, in the circumstances, provide a basis for allowing the application.

[273]

Moreover, as the
    Ministers comments above show, the two-stage plausible connection/real risk
    exercise is not the final step in the surrender analysis. Plausible
    connection and real risk are thresholds to be analyzed on a factual basis,
    and the Ministers decision in respect of them is entitled to deference. Even
    where the risk of torture or the risk that torture-derived evidence will be
    used is established, the ultimate question engaging s. 7 of the
Charter
remains
    whether it would shock the Canadian conscience to deport [the appellant] once
    a substantial risk of torture [or a real risk that torture-derived evidence
    will be used] has been established:
Suresh
, at para. 27. Here, after
    considering the record as a whole  including the further information and
    assurances he had received from France  the Minister decided that it would be
    neither shocking to the Canadian conscience nor simply unacceptable to
    surrender the appellant to France.

[274]

There may be
    rare and exceptional circumstances where deportation or surrender to face a substantial
    risk of torture or a real risk of the use of torture-derived evidence could be
    justified; generally, however, as we have said, the Minister should refuse to
    surrender in such circumstances:
Suresh
, at paras. 54-58, 76-77.

[275]

For the reasons
    discussed above, the Ministers findings and his decision that the surrender of
    the appellant would not shock the conscience of Canadians or be simply
    unacceptable were open to him on the record. They were not unreasonable.

[276]

We would not
    give effect to this ground of judicial review either.

V.

DISPOSITION

[277]

For the
    foregoing reasons, the appeal from committal is dismissed and the application
    for judicial review of the Ministers decision to surrender is also dismissed.

RELEASED:  AH  MAY 15 2014

Alexandra Hoy

R.A. Blair J.A.

Paul Rouleau J.A.





[1]
European countries examine the formal validity of extradition requests but
    there is typically no assessment of the sufficiency of the evidence:
Yang
,
    at para. 32.



[2]
For purposes of the committal hearing, counsel for the Attorney General opted
    not to rely on those parts of the record of the case that could be categorized
    as intelligence.



[3]
We note, again, that none of this evidence was relied upon at the committal
    stage.


