





CITATION:
Slovenia v. Soba, 2011
          ONCA 206



DATE: 20110315



DOCKET: C52023



COURT OF APPEAL FOR ONTARIO



Laskin, Feldman and Armstrong JJ.A.



BETWEEN



The Republic of Slovenia and Minister of Justice and
          Attorney General of Canada



Respondent



and



Bostjan Soba



Applicant



John Norris and Brydie Bethell, for the applicant



Richard Kramer, for the respondent



Heard and released orally: February 17, 2011



An application for judicial review of the decision of the
          Minister of Justice dated July 16, 2009.



ENDORSEMENT



[1]

The applicant seeks judicial review of the Ministers
    decision to extradite him to the Republic of Slovenia. In oral argument the
    applicant focused on two grounds to challenge the decision of the Minister.

[2]

The first is that the Minister denied the applicant
    natural justice by rejecting supporting submissions of the Helsinki Monitor
    Organization. The Minister did so on the ground that he doubted the
    institutions legitimacy and on the ground of its association with the
    applicant. No notice of these grounds was given to the applicant ahead of time and
    therefore he had no opportunity to respond to them.

[3]

We would not give effect to this ground of judicial
    review for two reasons. First, the applicant, in his several submissions to the
    Minister, did not disclose and explain his association with the Helsinki
    Monitor Organization in order to alert the Minister to the issue. Second, the
    applicant could have asked the Minister for a reconsideration of the case based
    on this issue, and he did not do so.

[4]

The applicants second ground is based on the recent
    decision of the Supreme Court of Canada in
Németh
    v. Canada
, 2010 SCC 56, which came out after the Ministers decision and
    which the applicant says changed the law. In particular, he says that in
    interpreting s. 44(1)(b) of the
Extradition
    Act,
S.C. 1999, c. 18, the Supreme Court has broadened the type of prejudice
    that is relevant and has lowered the standard of proof of persecution from a
    balance of probabilities to a mere risk of persecution.

[5]

The Crown in response agrees that the
Németh
case did change the law, but only
    as it applies to certified convention refugees and not to refugee applicants.
    For them, the process is the one that the Minister followed in addressing the
    issue of potential prejudice by persecution in the requesting state.

[6]

The Minister checked with the Ministry of Citizenship
    and Immigration (CIC) to investigate and
advise
on the
    issue. In his reasons the Minister referred to the fact that the CIC found that
    the judicial system in Slovenia is a fair one and that there was no suggestion
    of any concern of the potential for persecution. We accept the submission of
    the Crown.

[7]

In the result, the application for judicial review is
    dismissed.


Signed: John Laskin J.A.

K.
    Feldman J.A.

Robert
    P. Armstrong J.A.


