



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Pakulski, 2015 ONCA 539

DATE: 20150721

DOCKET: C57319

Simmons, Tulloch and Huscroft JJ.A.

BETWEEN

The Attorney General of Canada on behalf of the
    United States of America and the Minister of Justice

Respondents

and

Joanna Pakulski

Applicant

Joanna Pakulski, in person

Daniel Sheppard, duty counsel for the applicant

Heather J. Graham, for the respondents

Heard: April 8, 2015

On application for judicial review of the reconsideration
    decision of Minister of Justice dated January 27, 2015, maintaining the
    surrender order dated June 13, 2013.

By the Court:


[1]

The applicant seeks judicial review of the
    reconsideration decision of the Minister of Justice dated January 27, 2015. In
    that decision, the Minister concluded that an order dated June 13, 2013
    surrendering the applicant for extradition to the United States should be
    maintained.

[2]

If surrendered, the applicant will face a charge in New
    York of engaging in a conspiracy to distribute and possess with intent to
    distribute 100 kilograms or more of marijuana. It is alleged that between 2003
    and 2007, she participated in a cross-border conspiracy with others to traffic hundreds
    of kilograms of marijuana from Canada into the United States and that her role
    was to collect the cash proceeds from drug sales and transport them back into
    Canada. On March 15, 2008, Canadian border authorities located US$59,540 concealed
    in the paneling of her car.

[3]

The applicant was committed for extradition on
    July 31, 2012. On January 29, 2014, this court dismissed her appeal from the
    committal order and referred her application for judicial review of the June
    13, 2013 surrender order back to the Minister for reconsideration. This court
    made the referral for reconsideration in light of a change in the appellants personal
    circumstances: she gave birth to a child on March 18, 2013.

[4]

In his reconsideration decision, the Minister rejected
    the applicants arguments that a surrender order would violate the s. 7
Charter
rights of her and her child and be unjust or oppressive under s.
    44(1)(a) of the
Extradition Act
,

S.C.
    1999, c. 18. He also rejected her argument that, particularly in light of her
    role as the sole caregiver to a young child, a proper
Cotroni
analysis makes clear that surrender would violate the s. 6(1)
Charter
rights of both the applicant and her child and would not
    be saved under s. 1 of the
Charter
.

[5]

On her application for judicial review to this
    court, the applicant contends that, having regard to the interests of her
    child, the Ministers decision was unreasonable in three respects.

[6]

First, she says that in reaching his conclusion
    under s. 7 of the
Charter
and s. 44(1)(a) of
    the
Extradition Act
,
the Minister failed to
    adequately consider her role as the sole caregiver to her young child and the
    significant impact her surrender would therefore have on her child  as
    demonstrated by an expert assessment she had obtained. She contends that the
    Ministers decision rested on generalizations and failed to adequately consider
    the case-specific information that was presented in this case. Further, she
    says the Minister made a palpable and overriding error in concluding that the
    applicants surrender would not leave [the child] without the support and care
    of a family member.

[7]

We do not accept these submissions. In the
    assessment report the applicant obtained, the assessor noted that the applicant
    rents a one-bedroom apartment from her mother in a Toronto home and that the
    applicant had stated she was well supported by her mother  and several
    siblings. Having regard to these statements it was open to the Minister to
    conclude that the applicants surrender would not leave her child without the
    support and care of a family member.

[8]

Further, the Ministers reconsideration decision
    demonstrates that he was fully aware of the applicants role as the sole
    caregiver of her child and the assessment report she had obtained. Nonetheless,
    after reviewing the relevant principles, the Minister concluded that the
    applicants personal circumstances and the potential impact of her surrender on
    her child do not warrant refusing to honour Canadas obligations to the United
    States and that her surrender would not be shocking to the Canadian conscience
     or unjust or oppressive.

[9]

In our view, the Minister took account of the
    relevant considerations, and the applicant has failed to demonstrate that his
    conclusion was unreasonable.

[10]

Second, the applicant argues that the Ministers decision is
    unreasonable because he failed to properly consider the impact of the differing
    sentencing regimes that exist in Canada and the United States and, in particular,
    the likelihood that the applicant would qualify for the Mother-Child Program if
    prosecuted, convicted, and sentenced to imprisonment in Canada. This program
    would allow the applicants child to live with her if she were incarcerated in
    the federal system. The Minister also failed to properly consider other
    differences in the manner in which any sentence might be served (
e.g.
conditional sentence) that could impact the childs security of the person.

[11]

We do not accept these submissions. The Minister specifically
    adverted to the applicants submissions concerning the differences in the
    sentencing regimes in Canada and the United States and to the potential impact
    on her son of her incarceration in the United States as compared to her
    incarceration in Canada if she were prosecuted and convicted in Canada. In
    doing so, he referred explicitly to the existence of the Mother-Child Program in
    Canada, to the absence of a similar program in the United States, and to the
    evidence filed by the applicant concerning the possibility of a conditional
    sentence.

[12]

We see nothing unreasonable in the Ministers
    consideration of these issues or in his decision. In particular, we observe
    that t
he fact that the Mother-Child Program exists in Canada does not
    mean that it would be available to the applicant in the place where she was
    incarcerated if she were prosecuted and incarcerated in Canada. Nor would the
    availability of the program at a particular institution mean that the applicant
    and her child would qualify for it. In any event, as the Minister noted, the
    Supreme Court of Canada has repeatedly upheld surrender decisions where the
    person sought for extradition was potentially facing a lengthy mandatory jail
    sentence upon conviction in the requesting state:
United States of American
    v. Jamieson
,

[1996] 1 S.C.R. 465;
United States of American v.
    Whitley
, [1996] 1 S.C.R. 467;
United States of America v. Ross
,
    [1996] 1 S.C.R. 469.

[13]

Finally, the applicant argued that the
    Ministers decision is unreasonable because he rejected submissions that his
    decision should be guided by UK Supreme Court and European Court of Human
    Rights decisions concerning Article 8 of the
Convention for the
    Protection of Human Rights and Fundamental Freedoms
, 4
    November 1950, 213 U.N.T.S. 221, Eur. T.S. 5 (
European Convention on
    Human Rights
)

as Article 8 does not correspond to
    s. 6(1) or s. 7 of the
Charter
. The applicant
    claims that this conclusion is inconsistent with the position the Minister took
    before the Supreme Court of Canada in
M.M. v. Minister of Justice
    Canada on behalf of the United States of America
,
Court File No. 35838, appeal heard and reserved on March 17, 2015
[1]
, that Article 8
    jurisprudence is informative of issues that arise at the surrender phase of
    extradition proceedings.

[14]

We do not accept this argument. The Ministers
    statements in this case concerning Article 8 were in response to the
    applicants submissions concerning s. 6(1) of the
Charter
and, in particular, her reliance on
BH & Anor v. The
    Lord Advocate & Anor (Scotland)
,
[2012] UKSC 24. In
    that case, the UK Supreme Court considered the best interests of six children
    of two parents sought for extradition on drug charges as an aspect of the
    Article 8 right to respect for private and family life, and held that only in
    exceptional circumstances would private or family life outweigh the legitimate
    goal of extradition.

[15]

The Minister noted that the s. 6(1) rights of
    the child are not engaged in this case as the child is not the person sought
    for extradition and that extradition of the appellant would not result in
    removal of her child from Canada. The Minister went on to note that Article 8
    does not correspond to s. 6(1) or s. 7 of the
Charter
and

the UK decision
    has no direct application to the applicants case.

[16]

In his factum in
M.M.
,
the Minister makes the same observation, noting  that the
Charter
does not have any provision identical to Article 8. Nonetheless, he
    adds that judicial consideration of the best interests of the child in the
    article 8 context can be informative, and goes on to explain why his decision
    in that case is consistent with principles of international law as contained in
    the
European Convention on Human Rights and the Convention on the
    Rights of the Child
,
Can.
    T.S. 1992 No. 3.

[17]

We fail to see any material inconsistency
    between the Ministers position as articulated in this case and his position as
    set out in his factum in
M.M.

[18]

The application for judicial review is therefore
    dismissed.

Released :                      Janet
    Simmons J.A.

MT                               M.
    Tulloch J.A.

JUL 21 2015                 Grant
    Huscroft





[1]
On appeal from
Canada (Attorney General) (United States) v. M.M.
,

2012
    QCCA 1142, leave to appeal to S.C.C. granted, [2014] S.C.C.A. No. 252 and
M.M.
    v. Canada (Minister of Justice)(United States of America)
, 2014 QCCA 681,
    leave to appeal to S.C.C. granted, [2014] S.C.C.A. No. 252.


