



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Cavan, 2015 ONCA 664

DATE: 20151002

DOCKET: C58169

Watt, Pepall and Huscroft JJ.A.

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

BETWEEN

The Minister of
    Justice and Attorney General of Canada and

The United States of
    America

Respondents

and

Han Cavan

Applicant

John Norris and Meara Conway, for the applicant

Nancy Dennison, for the respondents

Heard: January 30, 2015

On application for judicial review of the surrender order
    of the Minister of Justice, dated December 12, 2013.

Watt J.A.:

[1]

Those who persist in their pursuits have mixed results. Some succeed.
    Others fail.

[2]

Han Cavan persisted in his pursuit of cocaine in the United States for
    sale in Canada. Twice he tried. And twice he failed. The reasons he failed
    differed. But the result was the same. No drugs. And no money.

[3]

Han Cavans troubles were not over. United States authorities wanted to
    prosecute him for his alleged involvement in those failed drug transactions.
    And they wanted Canadas help to pursue the prosecution by returning Cavan to
    the United States for trial.

[4]

Han Cavan agreed that the United States authorities had made out a case
    for his committal for surrender. A judge ordered his committal. The Minister of
    Justice ordered Cavans surrender.

[5]

Han Cavan does not contest the committal order. But he contends that the
    surrender order is fatally flawed by legal errors the Minister made in his
    decision. These reasons explain why I have concluded that, in this pursuit, Han
    Cavan fails again.

THE BACKGROUND FACTS

[6]

A brief tour through the nature of the allegations and the history of
    the proceedings is essential to an understanding of the claims of error
    advanced here.

The Original
    Conviction

[7]

The story begins in Minneapolis, Minnesota, on November 20, 2006, when
    Han Cavan was sentenced to imprisonment for 8 years, 8 months and 8 days on a
    conviction for conspiracy to traffic in nearly 30,000 ecstasy pills.

[8]

Han Cavan is a Canadian citizen. When convicted and sentenced in
    Minneapolis, Cavan was living and had a business in the United States. He began
    serving his sentence in a U.S. prison.

The Transfer to Canada

[9]

On May 9, 2008, under the
International Transfer of Offenders Act
,
    S.C. 2004, c. 21 and governing treaty, Cavan became a treaty transfer case to
    Canada. He arrived in Canada on June 26, 2008 to serve the remainder of his
    sentence.

Accelerated Day Parole

[10]

About
    six weeks after his return to Canada, Han Cavan was granted accelerated day
    parole. He was to reside at a Salvation Army residence in Kitchener while
    subject to the conditions of his day parole.

The First Plan

[11]

United
    States authorities allege that, during the summer of 2008, Han Cavan telephoned
    an individual in the United States in search of kilogram quantities of cocaine.
    The person whom Cavan called was a brother of a man with whom Cavan had been in
    jail in the United States. Unknown to Cavan, however, the man was also a paid
    confidential source who worked with the Drug Enforcement Agency (the DEA).

[12]

The
    communications between Cavan and the DEA source continued into the fall of 2008
    and included visits to New York City by Jo Van Lo, one of Cavans associates,
    to settle the details of the transaction: 17 kilograms of cocaine for $27,000
    per kilogram. The money, about $458,000, was to be transported to the United
    States in a secret compartment in a sports utility vehicle and exchanged for
    the cocaine, which was to be transported back to Canada in the same compartment
    of the same vehicle.

[13]

The
    plan failed. Customs and Border Protection agents stopped the vehicle at the
    Peace Bridge, searched it and found $458,000 in the hidden compartment. The
    driver of the vehicle, William Hicks, explained the scheme in a post-arrest
    statement to United States authorities.

Accelerated Full Parole

[14]

On
    October 2, 2009 the Parole Board of Canada (PBC) granted Han Cavan
    accelerated full parole. He was required to live at a designated address in
    Kitchener and be supervised by the Guelph Parole Office.

The Second
    Plan

[15]

According
    to United States authorities, Cavan continued to call the DEA source about the
    purchase of kilogram amounts of cocaine in 2009. The parties settled on a
    proposed exchange of 10 kilograms of cocaine for $25,000 per kilogram. Delivery
    of the drugs to Cavans associate, John Mawhinney, did not proceed in
    accordance with the original plan. A new plan was formulated. The transfer was to
    take place in Tonawanda, New York.

[16]

In
    Tonawanda, Mawhinney was given a sample of the cocaine by an undercover law
    enforcement agent. Mawhinney then produced a duffle bag containing the purchase
    price and a transportation fee of $500 per kilogram. When Mawhinney turned over
    the money to the DEA source, DEA agents arrested Mawhinney.

The United States Indictment

[17]

On
    November 19, 2009, two days after Mawhinney was arrested in Tonawanda, New
    York, a Grand Jury in the Southern District of New York returned a true bill of
    indictment against Mawhinney, Adam Kaup (who was with Mawhinney in Tonawanda),
    Cavan, Lo and Hicks.

[18]

The
    indictment alleged a conspiracy from at least November 2008 until November 17,
    2009 to distribute and to possess with intent to distribute cocaine. Arrest
    warrants were issued the same day.

Suspension and Revocation of Parole

[19]

Within
    a week of the Grand Jury indictment, a warrant suspending Cavans parole was
    issued. The warrant was executed the next day when Cavan attended a scheduled
    supervision interview.

[20]

About
    two and one-half months after Cavans parole was suspended, the PBC revoked his
    parole on the basis that he was involved in the commission of a new criminal
    offence and had breached a specific non-association condition of his parole.
    Cavan was recommitted to custody with a warrant expiry date of July 27, 2015.
    He has not taken any steps to review the suspension or cancellation of his
    parole.

[21]

The
    only new criminal involvement described in the materials provided to parole
    authorities was the charges contained in the U.S. indictment.

The Extradition Request

[22]

By
    diplomatic note on September 14, 2012 the United States requested the
    extradition of Cavan, Lo and Hicks to stand trial on the indictment in the
    United States District Court for the Southern District of New York.

The Authority to Proceed

[23]

About
    three months later, on December 13, 2012, counsel with the International
    Assistance Group issued an Authority to Proceed under s. 15 of the
Extradition
    Act
, S.C. 1999, c. 18 (the Act). The Attorney General of Canada was authorized
    to proceed before the Superior Court of Justice and seek orders of committal
    for Cavan, Lo and Hicks. The corresponding Canadian offence listed in the Authority
    to Proceed is conspiracy to traffic in a Schedule I controlled substance.

The Arrest of Han Cavan

[24]

Han
    Cavan was arrested on March 1, 2013, about three years after his parole had
    been revoked and about 28 months before his warrant expiry date. The arrest
    occurred about three years and four months after the Grand Jury returned a true
    bill of indictment in the Southern District of New York.

The Committal Hearing

[25]

On
    June 7, 2013 Han Cavan consented to his committal for surrender to United States
    authorities. A judge of the Superior Court of Justice ordered his committal.

The Surrender Proceedings

[26]

Counsel
    for Han Cavan sought and obtained further information from officials in the
    International Assistance Group in order to make submissions to the Minister
    about surrender.

[27]

On
    December 12, 2013 the Minister informed counsel for Cavan that he (the
    Minister) was ordering Cavans surrender for extradition to the United States.

THE GROUNDS FOR REVIEW

[28]

Han
    Cavan invokes s. 57(1) of the
Extradition Act
to seek judicial review
    of the surrender order made by the Minister. He contends that the surrender
    order is unsupportable because the Minister made several errors in failing to
    find that surrender would not infringe Cavans s. 7
Charter
rights or
    would not be unjust or oppressive under s. 44(1)(a) of the
Extradition Act
.

[29]

I
    would reframe these alleged errors as follows:


i.

The Minister erred in law by applying the wrong test and confining abuse
    of process to cases of bad faith and improper motive and thereby imposing an
    erroneously high standard on the exercise of his discretion to refuse to order
    surrender;


ii.

by limiting prejudice to the impact of delay on the extradition hearing;
    and


iii.

by unfairly imposing a burden on the applicant to show that an earlier
    extradition request would have resulted in his earlier release from custody.

[30]

I
    will consider each component of the overarching submission of unreasonableness
    separately.

Ground #1: The Abuse of Process Argument

[31]

The
    first complaint advanced by Cavan is that the Minister applied the wrong test
    and imposed too rigorous a standard in responding to the submission that to
    surrender him (Cavan) would constitute an abuse of process.

[32]

To
    determine the validity of this complaint, it is helpful to begin with a
    reference to the Ministers reasons on the issue before reviewing the positions
    of the parties and the principles that govern our decision on this issue.

The Reasons of the Minister

[33]

The
    Minister characterized this submission of counsel as an argument that surrender
    would be unjust and oppressive within s. 44 of the Act and an unjustifiable
    infringement of the applicants s. 7
Charter
rights. After noting that
    the arguments about delay by foreign authorities were analyzed as claims of
    abuse of process, the Minister described his understanding of the applicants
    burden to establish an abuse of process in these terms:

To find an abuse of process, there must be evidence of bad
    faith or improper motive on the part of the foreign authorities. As stated by
    the Supreme Court of Canada, such a finding will be extremely rare and must
    only be made in the clearest of cases (
United States of America v. Cobb
,
    [2001] 1 SCR 587;
R. v. Power
,
supra
). Additionally, it must
    be shown that the delay resulted in actual prejudice of such magnitude that the
    publics sense of decency and fairness is affected (
Blencoe v. British
    Columbia (Human Rights Commission)
, [2000] 2 SCR 307).

[34]

After
    a brief recital of the events that occurred from the Grand Jury indictment of
    the applicant and the others until the making of the extradition request the
    Minister wrote:

Your submissions are to the effect that the delay caused Mr.
    Cavan to be re-incarcerated for at least three years as a result of his parole
    having been suspended and revoked by order of the Parole Board of Canada (PBC).
    However, you have not presented any evidence to suggest that the U.S.
    authorities were involved in the parole suspension or revocation proceedings in
    Canada, other than to provide information to Canadian authorities. In
    particular, your materials indicate that the DEA provided information to
    Canadian officials concerning Mr. Cavans alleged involvement in cocaine
    trafficking while on parole. The U.S. authorities also provided updates at the
    request of Canadian officials on the status of their extradition request.

Your materials reveal that Mr. Cavans parole was not only
    revoked by the PBC because of information suggesting his involvement in drug
    trafficking but also because he violated a condition of his parole not to
    associate with a certain individual or individuals. Moreover, the delay in
    seeking Mr. Cavans extradition did not bring about the parole suspension; it
    was Mr. Cavans alleged conduct itself.

[35]

After
    a brief reference to the conduct of Canadian authorities and the complaint that
    those authorities did nothing to advance the extradition process, the Minister
    wrote:

I am satisfied that the three-year delay in this case (from the
    date of Mr. Cavans arrest on November 26, 2009, to the request for his
    extradition on September 14, 2012, and which was perfected when the ROC was
    certified on December 3, 2012) was not as a result of bad faith, or for an
    improper motive. Therefore, there is no basis to conclude that the conduct of
    Canadian or American authorities was abusive.

[36]

A
    few paragraphs later, the Minister expressed his conclusion on the applicants
    submission about delay and abuse of process.

In conclusion, it has not been established that the delay in
    this case amounts to an abuse of process or that Mr. Cavans surrender under
    the circumstances would be shocking to the conscience of Canadians, be
    simply unacceptable or contrary to the principles of fundamental justice.

Accordingly, I am of the view that Mr. Cavans surrender cannot
    be denied on the basis of delay.

The Arguments on Review

[37]

The
    applicant says that the doctrine of abuse of process is not limited to cases of
    bad faith or improper motive on the part of state authorities. To be certain,
    bad faith or improper motive are relevant considerations in the abuse of
    process analysis, but not conditions precedent to a successful claim. It
    follows, the applicant continues, that he was under no obligation to make out a
    case of either and the Minister was wrong in requiring him to do so.

[38]

The
    applicant contends that the doctrine of abuse of process protects the repute of
    the administration of justice. It has nothing to do with the merits of the
    states case either for extradition or at trial in the requesting jurisdiction.
    The doctrine is flexible and subsumed under s. 7 of the
Charter
. To
    subject the applicant to surrender in light of the delay in the extradition partners
    pursuit of extradition after the alleged offence and Grand Jury indictment
    would offend the communitys sense of fair play and decency, amount to an abuse
    of process and offend the principles of fundamental justice. The emphasis
    placed on the requirement of shocking the conscience or being simply
    unacceptable obscured the test the Minister should have applied in making his
    surrender decision.

[39]

The
    respondents begin with a reminder about the standard of review we are to apply.
    The standard is reasonableness, a benchmark that posits a range of possible
    outcomes, not a single, exclusive response. In this case, the respondents say,
    the Minister considered the relevant facts and reached a conclusion that falls
    within the range of supportable outcomes.

[40]

The
    respondents contend that the applicants argument about abuse of process rests
    exclusively on a claim of unreasonable or undue delay in the initiation of
    extradition proceedings. Unlike in domestic proceedings to which s. 11(b) of
    the
Charter
would apply, the delay here must take cognizance of the
    international nature of these proceedings. To make out a claim of abuse of
    process based on delay, the applicant must invoke the residual category of
    abuse of process. The authorities make it clear that in the residual category,
    stays for abuse of process are extremely rare and granted in only the clearest
    of cases where no other remedy is capable of eradicating the prejudice. This
    case does not ascend to that level.

The Governing Principles

[41]

The
    combined effect of several principles assists in the determination of this
    ground of appeal. Some describe the standard of review of a surrender decision.
    Others define the scope of the doctrine of abuse of process. Still others
    interpret the duty of the Minister under s. 44(1)(a) of the
Extradition Act
.
     And others describe the extent to which, if at all, Canadian authorities can
    direct the manner in which our extradition partners carry out their
    investigation of offences and pursuit of extradition proceedings.

The Surrender Decision

[42]

After
    committal, an extradition request reverts to the Minister who reviews the case
    in its entirety and determines whether, and if so on what basis, to order the
    surrender of the person sought. This requires the Minister to determine whether
    it is politically appropriate and not fundamentally unjust for Canada to
    extradite the person the extradition partner seeks:
Extradition Act
,
    s. 40(1);
Fischbacher v. Canada (Minister of Justice)
, 2009 SCC 46,
    [2009] 3 S.C.R. 170, at para. 36.

[43]

The
    Ministers authority to order or refuse surrender is subject to the provisions
    of the Act and Treaty. The Minister must exercise his authority in conformity
    with the
Charter
:
Fischbacher
, at para. 36.

[44]

Several
    provisions of the Act, under the sub-heading
Reasons for Refusal
, circumscribe
    the Ministers surrender power in s. 40(1). Some provisions are mandatory,
    barring surrender in defined circumstances. Others are discretionary,
    permitting but not requiring refusal in other circumstances.

[45]

Under
    s. 44(1)(a), the Minister must refuse to order surrender if the Minister is
    satisfied that the surrender would be unjust or oppressive having regard to all
    the relevant circumstances. Under this provision, the Minister must consider
    all relevant circumstances, each on its own and together with the rest, to
    determine whether surrender would be unjust or oppressive:
Fischbacher
,
    at para. 37;
United States of America v. Johnson
(2002), 62 O.R. (3d)
    327 (C.A.), at para. 45. Inclusion of the term satisfied in s. 44(1)(a)
    reposes a discretion in the Minister:
Fischbacher
, at para. 37.

[46]

To
    make a surrender decision, the Minister must undertake a balancing of all the
    relevant circumstances, weighing factors that militate in favour of surrender,
    on the one hand, against those that advocate against surrender, on the other.
    The relevant circumstances will vary, of course, from one case to the next.
    Included within the broad embrace of relevant may be:


i.

any representations (on the issue of surrender) made on behalf of the
    person sought;


ii.

the conduct of the proceedings in the requesting state before and after
    the extradition request;


iii.

the potential punishment on conviction in the requesting state;


iv.

the personal circumstances of the person sought;


v.

the timeliness and manner of prosecuting the extradition proceedings in
    Canada; and


vi.

the need to respect the constitutional rights of the person sought and
    Canadas international obligations under the Treaty and as a responsible member
    of the international community: see
Fischbacher
, at para. 38;
United
    States of America v, Bonamie
, 2001 ABCA 267, 293 A.R. 201, at para. 54;
United
    States of America v. Cobb
, 2001 SCC 19, [2001] 1 S.C.R. 587, at para. 34.

[47]

Section
    44(1)(a) entitles the Minister to refuse surrender in the absence of a
Charter
breach, provided the Minister is satisfied that surrender would be unjust or
    oppressive in all the relevant circumstances. A
Charter
breach may not
    be alleged. Or alleged, but not established. Despite the constitutionality of
    surrender, the Minister may refuse surrender if surrender would be unjust or
    oppressive in all the circumstances.

[48]

The
    exercise of the Ministers power of surrender implicates the liberty and, in
    some cases, the security of the person sought. As a result, the Minister owes a
    duty of fairness both at common law and in accordance with the principles of
    fundamental justice under s. 7 of the
Charter
:
Nemeth v. Canada
    (Minister of Justice)
, 2010 SCC 56, [2010] 3 S.C.R. 281, at para. 70.

[49]

Under
    s. 44(1)(a), the Minister must have a wide measure of appreciation of what
    circumstances are unjust or oppressive. The burden of demonstrating that
    unjust or oppressive circumstances exist falls upon the person sought:
Fischbacher
,
    at para. 37;
Nemeth
, at para. 72;
Lake v. Canada (Minister of
    Justice)
, 2008 SCC 23, [2008] 1 S.C.R. 761, at paras. 38-39.

Supervision of Proceedings in
    Foreign Jurisdictions

[50]

Actions
    undertaken by the Government of Canada in extradition proceedings are subject
    to
Charter
scrutiny. But the
Charter
does not govern the
    actions of the extradition partner. The
Charter
does not operate
    extraterritorially to superintend the manner in which offences alleged to have
    been committed in a foreign jurisdiction are investigated and prosecuted:
Canada
    v. Schmidt
, [1987] 1 S.C.R. 500, at p. 518.

Abuse of Process and the
    Principles of Fundamental Justice

[51]

In
    domestic proceedings, we recognize two categories of abuse of process. Each
    would also be captured by s. 7 of the
Charter
. Each is rooted in state
    conduct. The main category encompasses state conduct that affects the fairness
    of the trial. The residual category takes in state conduct that contravenes
    fundamental notions of justice and thus undermines the integrity of the
    judicial process:
R. v. OConnor
, [1995] 4 S.C.R. 411, at para. 73;
R.
    v. Nixon
, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 36;
R. v. Babos
,
    2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31.

[52]

Abuse
    of process does not require evidence of bad faith or an improper motive on the
    part of the foreign authorities. It also captures conduct that falls short of
    bad faith but still risks undermining the integrity of the justice system:
Canada
    (Attorney General) v. Barnaby
, 2015 SCC 31, 323 C.C.C. (3d) 185, at para.
    10;
Babos
, at paras. 36-37.

[53]

The
    test used to determine whether a stay of proceedings is warranted in domestic
    cases under either category comprises three requirements:


i.

prejudice to an accuseds right to a fair trial or the integrity of the
    justice system that will be manifested, perpetuated or aggravated through the
    conduct of the trial or its outcome;


ii.

no alternative remedy capable of redressing the prejudice; and


iii.

in the event of uncertainty after completion of steps i and ii, a
    balancing of interests in favour of the stay against the interest society has
    in having a final decision on the merits: see
Babos
, at para. 32. See
    also
R. v. Regan
, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 54 and
    57.

[54]

In
    the residual category, prejudice to an accuseds interests is relevant, but not
    determinative. In most cases an accused will have to demonstrate that the state
    conduct prejudiced him or her in some significant way in order to make out a
    case for abuse of process. But the prejudice component is better conceptualized
    as an act tending to undermine societys expectations of fairness in the
    administration of justice:
Nixon
, at para. 41. The question is whether
    the states interest is offensive to societys notions of fair play and decency
    and whether proceeding with a trial in the face of that conduct would be
    harmful to the integrity of the justice system. State conduct that exceeds
    societys tolerance harms the integrity of the justice system:
Babos
,
    at para. 35.

[55]

The
    balancing stage of the test, which need only be undertaken when uncertainty
    remains after completion of the first two stages, assumes added importance
    under the residual category:
Babos
, at para. 41. The question there is
    which of two options better protects the integrity of the system: staying the
    proceedings or having a trial despite the impugned conduct:
Babos
, at
    para. 41.

[56]

At
    the root of each category of abuse of process rests state conduct. Where the
    state conduct implicates the fairness of trial proceedings, the main category
    applies. The concern is whether there is ongoing unfairness to the accused:
Babos
,
    at para. 34. In the residual category, the conduct does not implicate the
    fairness of trial proceedings, rather its condonation would tarnish the integrity
    of the court:
Nixon
, at para. 41.

[57]

In
    either category, stays of proceedings for abuse of process are limited to the
    clearest of cases:
Babos
, at para. 31;
OConnor
, at para. 68.
    The balancing of societal interests that must take place and the clearest of
    cases threshold present a claimant who seeks a stay under the residual
    category with an onerous burden. Cases warranting a stay in the residual
    category will be exceptional and very rare:
Babos
, at para. 44;
Canada
    (Minister of Citizenship and Immigration) v. Tobiass
, [1997] 3 S.C.R. 391,
    at para. 91. It is only where the affront to fair play and decency is
    disproportionate to the societal interest in the effective prosecution of
    criminal cases that a stay will be warranted:
Babos
, at para. 44;
R.
    v. Conway
, [1989] 1 S.C.R. 1659, at p. 1667.

The Standard of Review

[58]

On
    review, provided the Minister applies the correct legal test and does not
    otherwise err in law or contravene principles of natural justice, deference is
    owed to the Ministers decision on surrender: see
Lake
, at para. 34,
    41;
United States of America v. Magnifico
, 2007 ONCA 535, 223 C.C.C.
    (3d) 129, at para. 26. The standard of review for the Ministers decision is
    reasonableness even where the person sought contends that extradition would
    offend his or her rights under the
Charter
:
Lake
, at para.
    34. Interference with the Ministers decision is limited to exceptional cases
    of real substance:
Schmidt
, at p. 523;
Lake
, at para. 34.

[59]

The
    standard of reasonableness does not command that reviewing courts be blindly
    submissive to the Ministers assessment. That said, the standard does entail
    more than one possible conclusion. Our role is not to reassess the relevant
    factors and substitute our own view for that of the Minister. What we must
    decide is whether the Ministers decision falls within a range of reasonable alternatives.
    We must ask ourselves:

Did the Minister consider the relevant facts and reach a
    defensible conclusion based on those facts?

Provided the Minister has identified the proper test,
    his conclusion should be upheld unless it is unreasonable, that is to say,
    falls outside the range of reasonable outcomes:
Lake
, at para. 41.

The Principles Applied

[60]

The
    applicant  alleges error in the test the Minister applied in rejecting the
    submission that surrender would constitute an abuse of process or be unjust or
    oppressive within s. 44(1)(a) of the
Extradition Act
. I would not give
    effect to this ground of appeal.

[61]

The
    standard of review in this case is reasonableness. The applicant is correct to
    say that the Minister erred in his statement that bad faith or improper motive
    are conditions precedent to a successful claim of abuse of process; however,
    reading his decision as a whole, the Minister applied the correct test.

[62]

The
    Ministers reasons indicate that he considered all of the relevant factors pertaining
    to the issue before him, including the delay, Cavans re-incarceration and any
    potential prejudice. In addition, as the applicant put the
bona fides
of
    the requesting state in issue, it was appropriate for the Minister to consider
    whether the request for extradition was made in good faith or for some
    colourable purpose.

[63]

In
    any event, the standard to be met to establish an abuse of process  a showing
    that the state conduct risks undermining the extradition process  is so far
    removed from what occurred here as to make the error of no consequence to the
    result.

[64]

In
    reviewing the Ministers surrender decision on a standard of reasonableness, I
    proceed from a standard of deference owing to the discretionary nature of the
    decision, the superior expertise of the Minister and his obligation to ensure
    that Canada complies with its international obligations. His decision is
    principally an exercise of executive discretion, essentially political in
    nature, and at the extreme legislative end of the continuum of administrative
    decision-making.

[65]

Further,
    I am mindful of the admonition that interference with the Ministers decision
    on surrender is to be limited to exceptional cases of real substance.

[66]

Two
    reasons persuade me that the Ministers decision to reject the applicants
    claims that an order of surrender would be an abuse of process or unjust or
    oppressive falls within a range of reasonable outcomes and accordingly is not
    unreasonable.

[67]

First,
    the applicants invocation of the residual category of abuse of process
    requires a showing that the state conduct risks undermining the integrity of
    the extradition process. Such a showing would require evidence of conduct that
    is offensive to societal notions of fair play and decency. Cases warranting a
    stay of proceedings, and thus a refusal of surrender, on this ground are
    exceptional and rare. Nothing that occurred here amounts to an affront to fair
    play and decency that is disproportionate to the societal interest in the
    effective discharge of our international obligations to those accused of
    serious crimes in the jurisdiction of our extradition partner.

[68]

Second,
    the claim of abuse of process, injustice or oppression ultimately reduces to a
    submission of undue delay in the initiation of extradition proceedings. A
    complaint of this kind comes uncomfortably close to an attempt to impose our
    standards on the timeliness of trial proceedings on foreign authorities or at least
    to gauge their conduct by such a standard. And this we cannot do. Not directly.
    And not indirectly.

[69]

The
    Minister made an inquiry about the time that had elapsed from indictment to the
    initiation of extradition proceedings. He received a response, on its face
    reasonable  the accused persons had been indicted two days after the
    investigation concluded, and additional information in support of the charges
    had been gathered. The involvement of two different jurisdictions in the
    extradition of one of Cavans co-defendants had required consultation and
    coordination. It was not unreasonable for the Minister to accept this
    response.

Ground #2: Alleged Error in
    Assessment of Prejudice

[70]

The
    second ground on which the applicant argues the Ministers surrender decision
    was unreasonable has to do with the Ministers assessment of prejudice
    attributable to the delay in initiation of the extradition proceedings by the
    U.S. authorities. The error alleged is twofold. First, the Minister limited his
    assessment of prejudice to the impact of delay on the extradition hearing. And
    second, he failed to consider the prejudice caused to the applicant by the
    communication of information about the outstanding charges in the United States
    to Canadian authorities and its impact on the suspension and cancellation of
    the applicants parole and his incarceration to serve the balance of his
    sentence.

The Reasons of the Minister

[71]

In
    addition to the passages of the Ministers letter to counsel cited in paras. 34
    and 35 of this judgment, the following passage is relevant to this ground:

I have considered whether Mr. Cavan has been prejudiced by the
    delay. The Supreme Court of Canada has determined that only delay which impairs
    the ability of the person sought to adequately prepare for an extradition
    hearing is relevant to my decision on surrender. You have not provided me with
    any evidence to suggest that Mr. Cavans ability to defend himself in the
    Canadian extradition proceedings has been prejudiced by delay. Any other delay,
    and in particular delay which impacts on the ability of the defendant to
    present a full answer and defence, should be addressed at trial in the foreign
    state (
United States v. Allard
, [1987] 1 SCR 564).

The Arguments on Review

[72]

The
    applicant contends that the Minister wrongly restricted his consideration of
    prejudice to the impact of delay on the conduct of the extradition hearing. In
    doing so, the applicant says, the Minister wrongly conflated the jurisdiction
    of the extradition judge at the committal hearing with his own authority on
    surrender. The Minister is not required to find a nexus between the conduct
    alleged to constitute an abuse of process and the committal hearing in order to
    refuse surrender. The Ministers authority under s. 44(1)(a) of the Act is more
    expansive and not limited to or dependent upon a finding that the delay
    impaired the applicants ability to prepare for the extradition hearing.

[73]

In
    addition, the applicant says, the Minister took an unreasonably narrow view of
    prejudice in connection with the impact of the extradition partners conduct on
    the parole revocation proceedings. The suspension, later revocation, of the
    applicants parole was based largely on information supplied by the DEA about
    the outstanding U.S. proceedings. The result was that the applicant was
    reincarcerated until his warrant expiry date. Having provided the information
    to Canadian authorities, the applicant submits, the United States was obliged
    to move expeditiously with the extradition proceedings. Its failure to do so
    should have resulted in refusal of surrender.

[74]

The
    respondents disclaim any nexus amounting to an abuse of process between the
    extradition proceedings and the decision of PBC to suspend, then revoke, the
    applicants parole.

[75]

The
    respondents say neither the initiation nor the timing of extradition
    proceedings were of any moment to the authority or decision of the PBC to
    suspend and later revoke the applicants parole. The PBC exercises an
    inquisitorial function. It can rely on a wide variety of information from
    domestic and foreign sources to carry out its mandate. The range of material on
    which the Board can rely includes information indicative of a return to
    criminal activity whether charged, proven, stayed, withdrawn or dismissed. The
    extradition partner had no status before the Board. The applicant had the right
    to appeal or judicially review to Boards decision but chose not to do so.

[76]

The
    respondents point out that the delay in instituting extradition proceedings had
    no impact on the period the applicant would spend in custody. Once parole had
    been revoked, subject to his right to re-apply or review the revocation
    decision, the applicant would remain in custody until his warrant expiry date
    with or without any extradition proceedings.

The Governing Principles

[77]

In
    addition to the principles already canvassed and in no need of repetition, it
    is helpful to add a brief reference to the relationship between the domestic
    proceedings before the PBC and the impact of parole revocation on surrender for
    extradition.

[78]

Whether
    a prisoner serving a penitentiary sentence in Canada will receive parole and,
    if so, when and on what basis is determined by the PBC. It is of no moment to
    eligibility whether the sentence being served is for a domestic crime or for an
    offence committed elsewhere and served here under the
International
    Transfer of Offenders Act
.  The Board is not a court. It is not bound by
    the traditional rules of evidence, but rather may act on information that would
    not be admissible in criminal trial proceedings.

[79]

Nothing
    disentitles the PBC from acting on information gathered in a foreign
    jurisdiction. That said, foreign law enforcement authorities have no standing
    before the Board. Whether the foreign information is conveyed to the Board
    depends on domestic authorities. The use, if any, the Board makes of the
    information is determined by the Board in the exercise of its discretion.

[80]

Section
    64(1) of the
Extradition Act
governs cases in which a surrender order is
    made in respect of a person who was serving a sentence in Canada after
    conviction of an offence. The general rule enacted by this section is that the
    surrender order does not take effect until the person has been discharged from
    custody. It is of no moment whether the discharge is the result of an
    acquittal, the expiry of the sentence, or some other reason. The timing of the
    extradition proceedings would seem of no consequence to the prisoners
    surrender, absent a contrary order by the Minister:
Hanson v. Canada
    (Minister of Justice)
, 2005 BCCA 77, at para. 12.

[81]

The
    rule of no surrender until discharge is not unyielding. Section 64(1) expressly
    authorizes the Minister to order otherwise. And s. 66(1) permits the Minister
    to make an order of temporary surrender to the extradition partner.

The Principles Applied

[82]

I
    would reject the applicants claim that the surrender decision is unreasonable
    because the Minister erred in his assessment of prejudice when considering
    whether to refuse surrender under s. 44(1)(a) of the Act.

[83]

The
    decision of the Minister under s. 44(1)(a) of the Act is essentially an
    exercise of discretion. This arises from the use of the term satisfied and
    despite the mandatory shall refuse in the introductory words of the
    subsection. The subsection contains no exhaustive or illustrative list of
    factors for the Minister to consider, but rather envisages an assessment of all
    the circumstances and a balancing of those factors that favour surrender and
    those that counsel otherwise. Decisions that involve the exercise of discretion
    are notoriously the subject of deference on review.

[84]

Second,
    the fact that the extradition proceedings were outstanding formed no part of
    the decision of the PBC to suspend and later revoke the applicants parole.
    That decision was based on the applicants alleged involvement in an agreement
    to unlawfully import cocaine into Canada for sale here and his association with
    others with whom contact was prohibited under the terms of his parole. It was
    the applicants own conduct that compromised his conditional liberty, not the
    fact of extradition proceedings or any delay in initiating them.

[85]

Third,
    it does not follow, as the applicant seems to suggest, from the fact U.S.
    authorities provided information to their Canadian counterparts about the
    alleged criminal activity of the applicant that the United States authorities
    were bound to accelerate the initiation of extradition proceedings.

[86]

Extradition
    proceedings inevitably involve alleged criminal activity in the jurisdiction of
    the extradition partner. The manner in which the investigation proceeds in
    connection with the activity is up to the law enforcement authorities in the
    jurisdiction where it occurs. Likewise, the decision about extradition
    proceedings. Whether they will be taken. When. On what basis. The requested
    state does not call the tune. International comity dictates otherwise.

[87]

Fourth,
    any collateral consequences in Canada of alleged criminal activity in the
    United States are of no moment to United States authorities. Neither the fact
    nor the nature of these consequences imposes any obligation on the United
    States authorities to hasten their decision about extradition proceedings or the
    pace at which those proceedings are pursued. It is their case to make, not ours
    to dictate.

[88]

In
    addition, once the PBC revoked the applicants parole and he was recommitted to
    serve the balance of his sentence, failing a contrary order by the Minister, s.
    64(1) of the Act mandated that no surrender would take effect until the remanet
    of the applicants sentence expired. No prejudice ensued from the pace at which
    extradition proceedings were pursued.

[89]

Reading
    the reasons of the Minister as a whole, I am not persuaded that the erroneous
    reference to the impact of delay on the applicants ability to adequately
    prepare for the extradition hearing (which had already been held) renders the
    surrender decision unreasonable. The applicant consented to committal, a step
    that put paid to any claim of prejudice in that respect. But the Minister went
    on to consider other aspects of prejudice that might ensue from delay. Such as
    its effect on the applicants ability to defend himself in the United States
    proceedings. He also weighed potential prejudice against Canadas international
    obligations to its extradition partner. His conclusion was not unreasonable.

Ground #3: Alleged Unfair Burden of Proof

[90]

The
    final ground advanced by the applicant concerns the Ministers authority under
    s. 64(1) of the Act to order that surrender take place before expiry of a
    sentence of imprisonment the person sought is then serving.

The Reasons of
    the Minister

[91]

The
    Minister considered the submission that Canadian authorities did nothing to
    advance the extradition proceedings while the United States charges prevented
    the applicants release on parole. The Minister wrote:

With respect to your submission that Canadian authorities did
    nothing to advance this matter while the pending U.S. charges prevented Mr.
    Cavan from being released on parole, I note that an earlier extradition request
    would not have changed the fact that the U.S. charges would still have been
    pending until at least such time as Mr. Cavan was surrendered to the United
    States. With respect to persons sought serving sentences in Canada, I note that
    section 64 of the Act provides that, unless I order otherwise, a surrender
    order does not take effect until after the person has been discharged whether
    by expiry of the sentence or otherwise. Your materials indicate that Mr. Cavan
    was not eligible for statutory release until September 5, 2013, and that his
    sentence does not expire until July 27, 2015. In the circumstances, it is not
    apparent that an earlier request for extradition would have resulted in Mr.
    Cavans earlier release from custody in relation to the sentence he is
    currently serving in Canada.

The Arguments on Review

[92]

The
    applicant contends that the Minister placed an unfair burden on him to show
    that an earlier request for extradition
would
have resulted in his
    earlier release from custody on his U.S. sentence that had been transferred to
    Canada. Early surrender is in the hands of the Minister. It follows, the
    applicant says, that the burden should be on the Minister to explain why he
    would not have made an order under s. 64(1) had the extradition proceedings been
    instituted more promptly. In addition, the Minister failed to consider an order
    for temporary surrender under s. 66 of the Act.

[93]

The
    respondents point out that the complexities inherent in extradition proceedings
    engender delay. The underlying investigation within the jurisdiction of the
    extradition partner must be completed. In this case, the offence alleged to
    have been committed extended over a year, involved several alleged
    participants, included two separate prosecutorial authorities and required
    concurrent proceedings against the alleged parties to ensure contemporaneous
    apprehension. The Minister cannot dictate the pace of the foreign investigation
    or extradition proceedings.

[94]

The
    respondents say a fair reading of the Ministers reasons fails to reveal the
    imposition of any burden on the applicant as he claims. As a general rule,
    surrender awaits sentence expiration. The Minister simply pointed out that it
    was not apparent that an earlier extradition request would have made a
    difference. Such an observation does not impose a burden on the applicant to
    demonstrate the contrary.

The Governing Principles

[95]

Earlier
    in these reasons, I canvassed the operation of the provisions of s. 64(1) of
    the Act. No purpose will be served by their repetition here.

The Principles
    Applied

[96]

I
    would not give effect to this complaint. My reasons for rejecting it are brief.

[97]

First,
    I do not read the reasons of the Minister as imposing a burden on the applicant
    to demonstrate that more timely initiation of the extradition proceedings would
    have resulted in the applicants earlier release. The reasons simply point out
    the general rule that s. 64(1) puts in place. This observation about the
    practical impact of the statutory provision does not, in terms or by necessary
    implication, impose any burden on the applicant.

[98]

Second,
    a contrary order by the Minister based simply on delay would offend comity in
    that it would necessarily imply ministerial authority to superintend the manner
    in which foreign authorities conduct their business. No such authority resides
    in the Minister.

CONCLUSION

[99]

For
    these reasons, I would dismiss the application for judicial review and affirm
    the surrender decision of the Minister.

Released: October 2, 2015 (DW)

David
    Watt J.A.

I
    agree S.E. Pepall J.A.

I
    agree Grant Huscroft J.A.


