



COURT OF APPEAL FOR ONTARIO

CITATION:
Canada (Attorney
    General) v. Villanueva-Vera, 2012 ONCA 657

DATE: 20121002

DOCKET: C52733

Goudge, Watt and Hoy JJ.A.

BETWEEN

Minister of Justice

Respondent

and

Maria Villanueva-Vera (a.ka. Maria Mayerova,
    a.k.a. Maria Mayer)

Applicant

Paul Slansky, for the applicant

Moiz Rahman and Monika Rahman, for the respondent

Heard: June 19, 2012

On application for judicial review from the decision of
    the Honourable Minister of Justice and Attorney General of Canada, concerning
    an application brought pursuant to s. 44(1) of the Extradition Act, S.C. 1999,
    c. 18, dated September 27, 2010.

By the Court:

[1]

Maria Villanueva Vera was born in Czechoslovakia on December 13, 1953.
    She came to Canada over ten years ago and claimed refugee status on the basis
    of persecution she faced in the Czech Republic. In August 2001, Canada declared
    her to be a Convention refugee.

[2]

On June 8, 2006, Ms. Villanueva Vera was convicted in the Czech Republic
    of attempted fraud, forgery and counterfeiting currency. Although she was not
    present at her trial, she was represented by counsel. She was sentenced to five
    years imprisonment, which was reduced on appeal to three years.

[3]

In October 2006, Ms. Villanueva Vera became a Canadian citizen. She is a
    dual citizen of Canada and the Czech Republic.

[4]

On April 3, 2009, the Czech authorities requested extradition of Ms.
    Villanueva Vera for the purpose of enforcing her three-year term of imprisonment.

[5]

On September 10, 2009, Ms. Villanueva Vera was arrested in Canada, and,
    after a hearing in the Superior Court of Justice, she was committed to
    surrender for extradition on January 13, 2010. She did not appeal this
    committal order.

[6]

On September 27, 2010, the Minister of Justice ordered her unconditional
    surrender for extradition. He rejected her arguments that he should exercise
    his discretion against surrender because of her health and the inadequate
    medical treatment she would receive in Czech Republic. The Minister was
    satisfied that, should Ms. Villanueva Vera be extradited to the Czech Republic,
    she could get the medical assistance she might need.

[7]

The Minister also rejected Ms. Villanueva Veras argument that her
    surrender should be refused because the 2001 finding that she was a Convention
    refugee meant she had a well-founded fear of persecution if she were
    extradited. In doing so, the Minister considered whether he was required by s.
    44 (1) of the
Extradition Act
, S.C. 1999 c. 18 (the Act), to refuse to
    make the surrender order. That section reads:

44.(1) The Minister shall refuse to make a surrender
    order if the Minister is satisfied that

(a) the surrender would be unjust or oppressive
    having regard to all the relevant circumstances; or

(b) the request for extradition is made for the
    purpose of prosecuting or punishing the person by reason of their race,
    religion, nationality, ethnic origin, language, colour, political opinion, sex,
    sexual orientation, age, mental or physical disability or status of that the
    persons position may be prejudiced for any of those reasons.

[8]

The Minister applied the principles in
United States of Mexico v.
    Hurley
, (1997), 35 O.R. (3d) 481 (C.A.), and found that she had provided
    him with no evidence sufficient to demonstrate that she would, in fact, be
    persecuted if extradited. He therefore concluded that s. 44(1) did not preclude
    her surrender.

[9]

Following the decision in
Né
meth v. Canada (Justice)
, 2010
    SCC 56, [2010] 3 S.C.R. 281, Ms. Villanueva Vera made additional submissions to
    the Minister. She reiterated her earlier position, but also argued that
Né
meth
changed the law that the Minister must apply in her case, and that having once
    been found to have refugee status she could only be extradited if the Minister
    concluded on a balance of probabilities that the circumstances facing her had
    changed so that she no longer required the protection of refugee status. The
    Minister disagreed with this view of
Né
meth
and confirmed his
    original decision to surrender Ms. Villanueva Vera for extradition.

[10]

Ms.
    Villanueva Vera now seeks judicial review of both ministerial decisions.

ANALYSIS

[11]

We
    turn first to Ms. Villanueva Veras principal argument, namely that
Né
meth
changed the law guiding the Ministers decision whether to surrender her for
    extradition. The premise for this argument, with which we agree, is that the
    Minister must exercise his discretion according to proper legal principles. If
    he is guided by erroneous legal principles, he errs.

[12]

Né
meth
addresses the Ministers decision concerning the surrender for extradition of
    an individual with refugee status, where that status has not ceased or been
    revoked at the time the surrender decision is made. The legal principles it
    sets out to guide the Ministers decision are confined to this circumstance, as
    we explain in
Canada (Attorney General) v. Pataki
, 2012 ONCA 656
issued concurrently with
    these reasons.

[13]

In
Pataki
, the appellant was a Canadian citizen who had never been
    granted refugee status by Canada. We found that the Minister did not err in finding
    that
Né
meth
did not change the legal principles that must
    guide his decision. The question in this case is whether the result is any
    different, given that at the time of the surrender decision, Ms. Villanueva Vera
    was a Canadian citizen, but prior to becoming a citizen, she had been accorded
    refugee status by Canada.

[14]

In
    our view, the result is no different. The legal principles in
Né
meth
do not apply to the Ministers surrender decision in this case.

[15]

In
    August 2001, Ms. Villanueva Vera was granted refugee status by Canada. She was
    at that time a citizen of the Czech Republic. She became a Canadian citizen in
    October 2006.

[16]

As
    a citizen, Ms. Villanueva Vera has the protection of Canadian laws including
    the protection of s. 6(1) of the
Charter of Rights and Freedoms
granting her the right to re-enter and remain in Canada. If surrendered for
    extradition, as a Canadian citizen, she would have the right to access Canadian
    consular services in the Czech Republic pursuant to the
Vienna Convention

on Consular Relations
, Can. T.S. 1974 No. 25. In short, as of October
    2006, Ms. Villanueva Vera acquired a new nationality and enjoyed the protection
    of the country of her new nationality.

[17]

The
    Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, to which
    Canada has bound itself, provides that it ceases to apply to an individual who
    has acquired a new nationality, and enjoys the protection of the country of
    his new nationality (Article 1, C(3)).

[18]

The
Immigration and Refugee Protection Act
, S.C. 2001 c. 27, is to the
    same effect. Section 108(1)(c) reads:

108. (1) A claim for refugee protection shall be
    rejected, and a person is not a Convention refugee or person in need of
    protection, in any of the following circumstances:

...

(c) the person has acquired a new nationality and
    enjoys the protection of the country of that new nationality.

[19]

The
    underlying rationale for according refugee status is to serve as a back-up to
    the protection the individual expects from the state of which he or she is a
    national. It is meant to come into play only where that protection is
    unavailable:
Canada (Attorney General) v. Ward
, [1993] 2 S.C.R. 689 at
    para. 9. However, when the individual acquires a new nationality and enjoys the
    protection of the country of that new nationality, the rationale for refugee
    status disappears.

[20]

The
    Court of Appeal of England and Wales came to just that conclusion in
D.L.
    (D.R.C.) v. The Entry Clearance Officer Pretoria; Zn. (Afghanistan) v. The
    Entry Clearance Officer Karachi
, [2008] EWCA Civ 1420. Although the
    Supreme Court of the United Kingdom overturned this judgment, it expressly
    declined to address the issue of refugee status ending upon acquiring
    citizenship. The Court of Appeal said this at paras. 29-31:

29.     In my judgment it is plain that a recognised refugee
    who thereafter obtains the citizenship of his host country, whose protection he
    then enjoys, loses his refugee status. Article 1C(3) of the Refugee Convention
    could not be clearer.

30.     Moreover this conclusion, in my opinion, is in line
    with the scope and purpose of the laws protection of refugees. A passage in
    the UNHCR Handbook dealing with Article 1C(3) of the Convention includes this:

129.  As in the case of the re-acquisition of nationality,
    this third cessation clause derives from the principle that a person who enjoys
    national protection is not in need of international protection.

130.   The nationality that the refugee acquires is usually
    that of the country of his residence. A refugee living in one country may,
    however, in certain cases, acquire the nationality of another country. If he
    does so, his refugee status will also cease, provided that the new nationality
    of another country. If he does so, his refugee status will also cease, provided
    that the new nationality also carries the protection of the country of his new
    nationality.

31.     The following passage from Professor Hathaways book,
The
    Rights of Refugees under International Law
(Cambridge University Press,
    2005), at p. 916 is instructive. It fills out the point made at paragraph 129
    of the Handbook:

If a refugee opts to accept an offer of citizenship there,
    with entitlement fully to participate in all aspects of that states public
    life, his or her need for the surrogate protection of refugee law comes to an
    end. There is no need for surrogate protection in such a case, as the refugee
    is able and entitled to benefit from the protection of his or her new country
    of nationality.

[21]

We
    therefore conclude that when Ms. Villanueva Vera acquired her Canadian citizenship,
    the justification for her being accorded refugee status disappeared. From
    Canadas perspective, both as a matter of international and domestic law, her
    refugee status ceased.

[22]

Since
    at the time of her surrender decision her refugee status had ceased, the
    Minister was correct to conclude that the legal principles recited in
Né
meth
did not apply.

[23]

It
    may be that an individual who was once accorded refugee status but has since
    acquired Canadian citizenship may be able to rely on that in seeking to
    discharge the burden of proof on him or her. If, for example, the timeline from
    refugee status to citizenship to surrender decision is short, it may be easier
    for the individual to demonstrate that conditions at the time of the surrender
    decision have not changed from those that warranted protection as a refugee,
    thus helping to demonstrate that he or she will be persecuted if surrendered.
    However, Ms. Villanueva Vera does not advance this argument. Nor could she do
    so, given how long ago she acquired refugee status.

[24]

In
    summary, we reject Ms. Villanueva Veras primary argument. The Minister did not
    err in declining to apply
Né
meth
in making the surrender
    decision in her case.

[25]

Ms.
    Villanueva Vera advances two other legal arguments which can readily be
    disposed of. First, she says that the denial of protection to a former refugee,
    now a Canadian citizen, is not a reasonable limit on her s. 6(1)
Charter
right to remain in Canada. We do not agree.
U.S.A. v. Cotroni
, [1989]
    1 S.C.R. 1469, held that extradition does constitute a reasonable limit on the
    s. 6(1) rights of individuals sought for surrender.

[26]

Second,
    Ms. Villanueva Vera appears to argue that the equality rights of citizens
    sought for extradition are violated because they must meet a greater burden
    than those with refugee status, to whom
Né
meth
applies. We
    see no merit in this suggestion. This different treatment can hardly be said to
    perpetuate any historical disadvantage suffered by, or stereotypical treatment
    of, Canadian citizens as a group. Indeed, in this context, the rights
    accompanying citizenship are the antithesis of disadvantage.

[27]

Ms.
    Villanueva Veras final argument is that the Ministers decision to surrender
    her is unreasonable in light of her health and her need for medical care. We do
    not agree. The Ministers decision must be accorded significant deference:
Lake
    v. Canada (Minister of Justice)
, 2008 SCC 23, [2008] 1 S.C.R. 761.

[28]

The
    Minister took into account Ms. Villanueva Veras health, the basis for its
    treatment and the availability of adequate health care in the Czech Republic.
    His surrender decision in these circumstances cannot be said to be
    unreasonable.

[29]

For
    all these reasons, Ms. Villanueva Veras application for judicial review must
    be dismissed.

Released: October 2, 2012 (S.T.G.)

S.T. Goudge J.A.

David Watt J.A.

Alexandra Hoy J.A.


