



COURT OF APPEAL FOR ONTARIO

CITATION:
Canada (Attorney
    General) v. Pataki, 2012 ONCA 656

DATE: 20121002

DOCKET: C52020 and C52935

Goudge, Watt and Hoy JJ.A.

BETWEEN

The Minister of Justice of Canada

Respondent

and

Jozsef Pataki a.ka. Mike Harrison

Applicant (Appellant)

Paul Slansky, for the appellant

Moiz Rahman and Monika Rahman, for the respondents

Heard: June 19, 2012

On appeal from the committal order of Justice Julie A.
    Thorburn of the Superior Court of Justice, dated April 28, 2010, with reasons
    reported at 2010 ONSC 2663, and on application for judicial review of 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 November 10, 2010.

By the Court:

[1]

Jozsef Pataki was born in Hungary on October 5, 1953. He is Jewish. He
    is a dual Canadian and Hungarian citizen. He did not come to Canada as a
    refugee and has never had refugee status.

[2]

Hungary seeks to extradite him to stand trial in Hungary on two counts
    of fraud.

[3]

On April 28, 2010 he was committed for extradition by a judge of the
    Superior Court of Justice. The Minister of Justice subsequently ordered his
    surrender for extradition. He appeals his committal and seeks judicial review
    of the Ministers order.

THE APPEAL

[4]

Mr. Pataki raises three issues in attacking the committal order.

[5]

First, he says that the extradition judge did not properly assess the
    reliability of the evidence in the Record of the Case (the ROC). We do not
    agree. The extradition judge clearly understood that she could reject evidence
    found manifestly unreliable and that the appellant was not required to
    undermine the reliability of the entire ROC. As to certain unsourced
    statements in the ROC, while the extradition judge did not make a finding of
    unreliability, in our view, she assessed the evidence by considering only
    sourced statements. To the extent the extradition judge considered the
    transcript evidence in the ROC, she did not err. Read as a whole, there is no
    basis for finding it manifestly unreliable.

[6]

Second, the appellant says that the extradition judge erred in declining
    to admit certain defence evidence about whether or not there was another
    individual with the same name as the appellant. Again, we do not agree. The
    extradition judge determined that this was simply proper exculpatory evidence
    for the trial itself, since it was an attempt to counter the identification
    evidence in the ROC, not demonstrate its manifest unreliability.

[7]

Third, the appellant argues that there was insufficient evidence to
    support the committal order. Once again, we do not agree. There was ample
    evidence to support the inference that it was the appellant who purchased the oil
    in question without intending to pay for it and thus evidence upon which a
    properly instructed jury could convict him of fraud.

[8]

The appeal of the committal order is dismissed.

THE JUDICIAL REVIEW

[9]

On November 10, 2010 the Minister of Justice ordered Mr. Patakis unconditional
    surrender for extradition. The Minister rejected his argument that his
    surrender would be unjust or oppressive within the meaning of s. 44(1)(a) of
    the
Extradition Act
, S.C. 1999 c. 18 (the Act), because he will not
    get a fair trial in Hungary particularly due to the lack of respect for the
    rule of law, and significant anti-Semitism. The Minister also rejected his
    submission that the Minister should require assurances from Hungary that Mr.
    Pataki would not be prosecuted for an offence other than those for which he is
    extradited (the rule of speciality) and that he would be granted bail pending
    trial. In making this decision, the Minister took his legal guidance from
United
    States of Mexico v. Hurley
(1997), 35 O.R. (3d) 481 (C.A.).

[10]

On
    January 27, 2011, Mr. Pataki requested that the Minister reconsider his
    decision. His primary argument was that the decision of the Supreme Court of
    Canada in
Né
meth v. Canada (Justice)
, 2010 SCC 56, [2010] 3
    S.C.R. 281, changed the law by which the Minister must be guided in deciding whether
    to order Mr. Patakis surrender. He also reiterated his original arguments
    against surrender.

[11]

On
    October 20, 2011, the Minister rejected these submissions and confirmed his
    original decision.

[12]

Mr.
    Pataki now seeks judicial review of both ministerial decisions.

[13]

We
    turn first to the legal arguments raised by Mr. Pataki arising from
Né
meth
.
    While the Minister exercises his discretion to decide whether to order
    surrender of an individual for extradition, that discretion is not unfettered.
    It must be exercised according to law. The Minister purported to do so here,
    but declined to apply the legal principles set out in
Né
meth
.

[14]

There
    is no doubt that if
Németh
sets out legal principles that the Minister
    was required to follow in ordering Mr. Patakis surrender, a failure to do so
    is a legal error that renders the Ministers decision unreasonable and requires
    that it be set aside:
Gavrila v. Canada (Justice)
, 2010 SCC 57, [2010]
    3 S.C.R. 342, at para. 11. Mr. Pataki says that is what happened here.

[15]

The
    facts in
Né
meth
are straightforward but important. Mr. and
    Mrs. Németh, a couple of Roma ethnic origin, arrived in Canada in 2001. They
    applied for refugee status, alleging that acts of violence had been committed
    against them in Hungary, their country of origin. In 2002, they were granted
    refugee status by Canada. Years later, Hungary sought to extradite them both.
    They were committed for extradition by the Superior Court of Quebec. The
    Minister subsequently ordered their surrender for extradition. He declined to
    give effect to their fear of persecution should they be returned to Hungary.

[16]

Section
    44(1) of the Act is the relevant provision for individuals fearing persecution
    after extradition. Where it applies, the Minister must refuse surrender. It
    reads as follows:

When order not to be made

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 or that the
    persons position may be prejudiced for any of those reasons.

[17]

The
    question in
Németh
concerned the application of s. 44(1)(b) where the
    Minister is deciding whether to surrender a person with refugee status that has
    not ceased or been revoked:
Németh
, at paras. 9 and 59.

[18]

The
    Court answered that question by relying in significant measure on the
Convention
    Relating to the Status of Refugees
, Can. T.S. 1969 No. 6, which Canada has
    ratified. It speaks to Canadas obligations to those with refugee status, not
    to Canadas obligations to its citizens. It is those with refugee status to
    whom Canada owes its international and domestic obligations not to return them
    to face the persecution from which they fled.

[19]

The
    Court also looked for support by analogy to those provisions in the
Immigration
    and Refugee Protection Act
, S.C. 2001 C.27, under which refugee status can
    cease where the Minister can demonstrate that the circumstances upon which it
    was granted no longer exist. Both these provisions deal with an individual who
    has refugee status.

[20]

Based
    on these considerations, the Court concluded that where the Ministers decision
    concerns a person with refugee status in Canada and the requesting state is the
    one from which that person has been granted protection, that person does not
    have the onus of showing that the circumstances giving rise to the conferring
    of refugee status continue to exist. Rather the persons refugee status
    establishes that s. 44(1)(b) applies and surrender must be refused, absent the
    Minister meeting his burden of demonstrating on a balance of probabilities that
    those circumstances no longer exist and that the individual is no longer
    entitled to protection.

[21]

In
    other words, the Court addressed both the onus and the standard of proof for a
    person with refugee status. The balance of probabilities onus is now on the
    Minister and the standard the Minister must meet is that the circumstances
    justifying refugee status no longer exist and that the individual is no longer
    entitled to protection.

[22]

All
    this deals only with a person with refugee status.
Né
meth
does not affect the onus on a non refugee or what the non refugee must prove.
    That is, it does not alter the burden that a non refugee must meet. The Court
    made this explicit at para. 113:

Nothing I have said affects the burden on a person who has not
    been granted refugee status who relies on mandatory grounds of refusal of
    surrender under s. 44.

[23]

In
Gavrila
, at para. 11, Cromwell J., speaking for the Court, confirmed
    that
Né
meth
sets out the legal principles that apply where,
    at the time the surrender decision is made, the individuals refugee status has
    not ceased or been revoked.

[24]

This
    court reached the same conclusion in
Slovenia v. Soba
, 2011 ONCA 206,
    [2011] O.J. No. 1109, leave to appeal refused, [2011] S.C.C.A. No. 177, where
    it accepted the Crowns argument that
Né
meth
changed the law
    but only as it applies to certified convention refugees.

[25]

Mr.
    Pataki is a Canadian citizen. He has never had refugee status. We therefore
    reject his argument that
Né
meth
changed the legal principles
    that must guide the Minister in deciding upon his surrender for extradition.

[26]

Rather,
    we conclude that the Minister acted correctly in concluding that
Né
meth
did not change the the onus of proof and standard of proof that he was to apply
    to a non refugee.

[27]

Mr.
    Pataki also argues that the Minister erred in finding that his unconditional
    surrender was not unjust or oppressive under s. 44(1) of the Act.

[28]

We
    cannot accede to this argument. The Ministers decision that Mr. Patakis
    surrender would not be unjust or oppressive must be accorded substantial
    deference in this court. We see no basis for concluding that it was
    unreasonable. There was ample material before the Minister to support his
    conclusion that Mr. Pataki had not met his onus to show that he will not get a
    fair trial in Hungary so as to render his surrender unjust or oppressive.

[29]

Nor
    was the Minister unreasonable in concluding that Mr. Patakis surrender should
    be unconditional. Mr. Pataki established no basis for asserting that Hungary
    would violate the rule of speciality should he be returned. Moreover, it was
    open to the Minister to find that an assurance requiring bail was unnecessary
    in light of Hungarys functioning bail system.

[30]

For
    these reasons, we conclude that Mr. Patakis 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.


