



COURT OF APPEAL FOR ONTARIO

CITATION: XY v. United
    States, 2015 ONCA 773

DATE: 20151112

DOCKET: C59731

Doherty, Pepall and Brown 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

XY

Applicant/Person Sought

and

The United States of America

Requesting State

and

The Minister of Justice of Canada and the
    Attorney General of Canada

Respondent

Daniel F. Moore, for the applicant

Nancy Dennison, for the respondent

Heard and released orally: November 5, 2015

On application for judicial review of the surrender order
    of the Minister of Justice, dated December 9, 2014.

ENDORSEMENT

[1]

The applicant seeks judicial review of the
    Minister of Justices decision which reconsidered the original decision of the
    Minister to extradite XY to the U.S.A.

[2]

A reasonableness standard applies to the
    surrender decision of the Minister.

[3]

XY argues that the Ministers decision violates his
    s. 7
Charter
rights and he seeks a stay of
    proceedings on the basis that XY will be subjected to cruel and unusual
    punishment upon extradition.  Alternatively, XY argues that the Ministers
    decision was unreasonable on the basis that he applied an improper legal test,
    misapprehended the evidence and did not consider relevant factors.

[4]

XY seeks an order pursuant to s. 57(6)(b) of the
Extradition Act
quashing the determination of
    the Minister or, in the alternative, an order referring the matter back to the
    Minister and, if surrender is to be ordered, directing the Minister to seek
    guarantees of acceptable placement in custody so that his life and security
    will be protected.

[5]

We do not find the applicants submissions to be
    persuasive for the following reasons.  The test for refusing extradition on s.
    7 grounds was described recently by this court in
France v. Diab
as a strict one and available only in exceptional cases where
    extradition would shock the conscience of Canadians and be simply unacceptable:
France v. Diab
, 2014 ONCA 374, 120 O.R. (3d)
    174, at para. 202, leave to appeal refused,
2014 CanLII 67421 (S.C.C.)
.

[6]

Here, the Minister balanced the risks to the
    applicants personal safety against the protective measures available and came
    to the reasonable conclusion that the extradition of XY would not shock the
    conscience.  In reaching that conclusion, the Minister took into account the
    opinion provided by XYs U.S. counsel, although ultimately he did not accept
    much of that opinion.  As well, the Minister was advised by U.S. authorities
    that XY would be protected and they would be responsive to his safety
    concerns.  The U.S. authorities provided outlines of programmes available to
    any inmate who asserts his or her life is at risk from other inmates.  The
    Minister balanced all that information.  He concluded that those protections
    and representations by the U.S. authorities were sufficient to address the
    particular risks to XYs personal safety and to respond to his concerns.  In
    our view, it was reasonable for the Minister to reach that conclusion based
    upon the information before him.

[7]

The applicant submits that the Minister
    significantly understated the risks to his personal safety.  In his
    reconsideration decision, the Minister reviewed at some length the evidence
    concerning the risks faced by the applicant.   In our view, it was open to the
    Minister to conclude, as he did, on the evidence before him, that the applicant
    did not face a level of risk beyond that faced by the vast majority of
    cooperating inmates.

[8]

Moreover, we reject the applicants submission
    that potential placement by U.S. authorities in special housing units would
    amount to torture and cruel and unusual punishment.  The information provided
    by the U.S. authorities indicated that inmates placed in special housing units
    for protective purposes routinely have a cellmate, work assignments,
    recreational opportunities, educational programming, and may place telephone
    calls and receive social and legal visits.

[9]

For those reasons, we dismiss the application for
    judicial review.

[10]

To ensure that nothing in this endorsement
    interferes with the directions contained in the sealing order of Rouleau J.A.
    dated July 2, 2015, we shall send counsel a copy of this endorsement before
    releasing it.  If counsel have any concerns about the content of the
    endorsement, they should advise the court immediately of them.  The order of
    Rouleau J.A. shall continue in force, subject to any subsequent variation by
    this court.

Doherty J.A.

S.E. Pepall J.A.

David Brown J.A.


