



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Norton, 2017 ONCA 866

DATE: 20171110

DOCKET: C63440

Simmons, van
    Rensburg and Nordheimer 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 Attorney General of Canada on behalf of the
    United States of America

Respondent/Requesting State

and

James Sheldon Norton

Applicant/Person Sought

Gordon Scott Campbell & Karen G. Kernisant, for the
    applicant

Richard A. Kramer, for the Attorney General of Canada

Heard: November 3, 2017

On application for judicial review of the surrender order
    of the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney
    General of Canada, concerning an application brought pursuant to s. 43(2) of
    the
Extradition Act
.

REASONS FOR DECISION


[1]

The applicant seeks judicial review of the decision of the Minister of
    Justice, dated February 9, 2017, that ordered his surrender to the authorities
    of the United States of America.  The applicant seeks to have that order
    quashed or, in the alternative, have the matter remitted back to the Minister
    for reconsideration.

[2]

The background facts may be stated briefly.  On March 26, 2010, after
    making arrangements by cell phone, Mr. Norton agreed to sell and deliver
    marijuana to an undercover police officer in the State of New Jersey. Mr.
    Norton delivered three large duffel bags containing 80 pounds of marijuana to
    the undercover officer at a hotel in New Jersey.  Mr. Norton was immediately
    arrested.

[3]

Mr. Norton was indicted by a grand jury on September 30, 2010. On March
    21, 2011, he attended court with counsel and signed a voluntary plea agreement
    with the prosecutor in which he admitted to the essential elements of the
    offence. The plea agreement stipulated that Mr. Norton would serve a term of
    eight years in custody in a New Jersey Correctional facility in exchange for
    his admission of guilt. Mr. Norton was ordered to appear in court for
    sentencing on June 24, 2011. The sentencing was adjourned on consent on a
    number of occasions.  It was finally set for March 23, 2012. On March 23, 2012,
    Mr. Norton failed to appear in court. The matter was adjourned to March 30,
    2012, at which point Mr. Norton again failed to appear and a warrant was issued
    for his arrest.

[4]

On September 16, 2015, at the request of the United States, Mr. Norton
    was provisionally arrested, pursuant to s. 13 of the
Extradition Act
,
    S.C. 1999, c. 18.  On May 26, 2016, a judge of the Superior Court of Justice
    found that there was sufficient evidence to commit Mr. Norton on trafficking in
    a controlled substance as set out in the Authority to Proceed. Mr. Norton was
    ordered into custody to await the Ministers decision on surrender pursuant to
    the
Extradition Act
.  Mr. Norton did not appeal the decision of the
    extradition judge.

[5]

Mr. Norton is 54 years old.  He was born in the United States and is a
    Mohawk of Akwesasne. He is registered as an Indian under the
Indian Act
,
    R.S.C., 1985, c. I-5 and is officially recognized as a member of the Mohawks of
    Akwesasne. Mr. Norton has familial and cultural roots throughout the Akwesasne
    territory, which overlaps Ontario, Quebec and New York State. Mr. Norton's
    maternal grandparents are both Mohawk, with his grandmother being from Christie
    Island in Canada, and his grandfather being from Akwesasne in St. Regis, New
    York.  It is unclear whether Mr. Norton is a Canadian citizen.

[6]

As a young man, Mr. Norton joined the United States military, where he
    stayed for eight years. When he left the military, Mr. Norton had trouble
    finding steady employment. He spent approximately four years in custody in the
    United States for drug conspiracy related offences, as well as six months in
    custody for a conviction related to a fight. He has been diagnosed as an
    alcoholic, and in recent years has attempted to overcome his addiction. Mr.
    Norton now reports that he rarely drinks. Mr. Norton has three children aged
    26, 16, and 6 years old, who do not live with him and appear to all live in the
    United States. Mr. Norton is currently in a relationship with a woman who lives
    in the Cornwall, Ontario area.

[7]

Submissions were made on behalf of Mr. Norton to the Minister regarding
    her decision on surrender on October 13, 2016, January 10, 2017 and January 11,
    2017.  In particular, Mr. Norton submitted that his surrender should be denied
    based on his personal circumstances, including his Aboriginal heritage under s.
    7 of the
Canadian Charter of Rights and Freedoms

and under s.
    6(1) of the
Charter
.
On February 9, 2017, the Minister gave
    detailed reasons for her decision to surrender Mr. Norton to the authorities of
    the United States of America.

[8]

The applicant asserts that the Minister failed to give proper
    consideration to the principles set out in this courts decision in
United
    States of America v. Leonard
, 2012 ONCA 622, 112 O.R. (3d) 496 and the
    principles established in
R. v. Gladue
, [1999] 1 S.C.R. 688.  The
    applicant also seeks to have us provide clarification of the requirement to
    accord special consideration to Aboriginal defendants, at para. 57 of the decision
    in
Leonard

which he asserts requires the Minister to place predominant
    emphasis in her surrender decision on Aboriginal heritage, to address the
    systemic problems for Indigenous offenders identified in
Gladue

and
    emphasized in
R. v. Ipeelee
, [2012] 1 S.C.R. 433.

[9]

We do not agree that the Minister failed to properly apply the decision
    in
Leonard
.  In her lengthy and detailed reasons responding to the
    applicants submissions, she canvassed all of the relevant factors.  She
    specifically reviewed the reasons in
Leonard
and applied the
    principles articulated in that case, taking Mr. Nortons
Gladue

factors
    into special consideration both in assessing whether his surrender would
    violate the principles of fundamental justice under s. 7 of the
Charter

and in determining whether extradition was a justifiable limitation of his
    s. 6(1)
Charter

rights.

[10]

Recognizing
    that an individual assessment was required, the Minister nevertheless responded
    to the applicants arguments that his circumstances were similar to those of
    Mr. Leonard and Mr. Gionet (whose surrender was also at issue in the
Leonard
case), and warranted the same result. She pointed out, correctly in our view,
    that there were significant differences between the individual circumstances of
    Mr. Leonard and Mr. Gionet, on the one hand, and the applicant on the other. 
    Those differences included:

(i)   that the applicant had a criminal
    record in the United States for similar offences;

(ii)  that it was not clear that the
    applicant was a Canadian citizen;

(iii)  that the applicant could not be
    prosecuted in Canada for the offence to which he pled guilty in New Jersey;

(iv)  that, unlike the situation with
    Messrs. Leonard and Gionet, the sentence that the applicant faces in New Jersey
    (and which was part of his plea arrangement) was not so different than what he
    might face if successfully prosecuted here.

[11]

The
    Minister also expressly considered the factors identified in
Gladue
.  The
    Minister noted that the applicants Aboriginal background, along with his other
    personal circumstances, would be considered at the time of sentencing.
[1]
She also noted that his Aboriginal background would be considered and
    accommodated while he was incarcerated in New Jersey.  Unlike the situation in
Leonard
,
    there is simply nothing to which the applicant can point that would establish
    that the Minister did not give meaningful consideration to the principles in
Gladue
in reaching her conclusion that the applicants surrender should be ordered.

[12]

In
    addition, the Minister had other matters that she had to take into account in
    reaching her decision on surrender, including Canadas international treaty
    obligations.  As Sharpe J.A. said in
Leonard
, at para. 69:

The Minister's decision involves a fact-intensive balancing
    inquiry, weighing not only the
Cotroni
factors [which are applicable to
    the s. 6(1) analysis] but also political and international relations concerns.

[13]

This
    court must accord substantial deference to the Ministers decision.  The
    standard of review is reasonableness.  Unlike the situation in
Leonard
,
    apart from claiming the Minister failed to give proper consideration to
Gladue
principles, the appellant has not asserted any discrete legal error in the
    Ministers decision. In light of the considerations outlined in the Ministers
    reasons, the applicant has failed to establish that the Ministers decision
    does not fall within a range of possible, acceptable outcomes which are
    defensible in respect of the facts and law:
Dunsmuir v. New Brunswick
,
    [2008] 1 S.C.R. 190, at para. 47.

[14]

Finally,
    we do not see any reason or need, in the context of this case, to provide any
    clarification of this courts decision in
Leonard
.

[15]

The
    application is dismissed. The sealing order made by Doherty J.A. on September
    14, 2017 remains in full force and effect.

Janet Simmons J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.





[1]

The Minister noted that the sentencing judge in New Jersey
    would have the authority to shorten an agreed upon sentence and that the plea
    agreement expressly recognized this authority.


