



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Levy, 2019 ONCA 915

DATE: 20191121

DOCKET: C65722

Strathy C.J.O., Doherty and Tulloch JJ.A.

BETWEEN

The Attorney General
    of Canada

(on Behalf of the
    United States of America)

Respondent

and

Colin Levy

Applicant

Brad Greenshields, for the applicant

Adrienne Rice, for the respondent

Heard: October 2, 2019

On application for judicial review of the surrender order
    of the Minister of Justice dated August 1, 2018.

Tulloch J.A.:

[1]

Mr. Levy seeks judicial review, pursuant to s. 57 of the
Extradition
    Act
, S.C. 1999, c.18, of the order of the Minister of Justice (the
    Minister), dated August 1, 2018, ordering that he be surrendered to the United
    States to stand trial on criminal charges for drug-related offences. I would
    dismiss the appeal and uphold the Ministers order.

Facts

[2]

The applicant is a 53-year-old Canadian citizen who faces charges of
    trafficking and conspiracy to import illegal drugs into the U.S. These
    indictments were filed in the Southern District of Florida in 2010 and 2014.
    Mr. Levy was provisionally arrested in Canada on December 6, 2016, and the U.S.
    authorities requested his extradition to the U.S. by diplomatic note on
    February 3, 2017, clarified on March 5, 2018. The applicant was subject to an
    extradition hearing in front of André J. of the Superior Court of Justice in June
    2017. The extradition judge found that there was sufficient evidence to commit
    Mr. Levy on the offences in question and ordered him committed into custody to
    await the decision of the Minister on extradition.

[3]

The applicant abandoned his appeal of the committal order. However, counsel
    for the applicant made submissions to the Minister on his behalf on three
    occasions between December 2017 and June 2018, arguing that she should refuse
    to extradite on the basis that it could be unjust and oppressive, having regard
    to Mr. Levys health and personal circumstances. On August 1, 2018, the
    Minister ordered that the applicant be surrendered to the U.S. authorities,
    under s. 40 of the
Extradition Act
. She amended this order on July 3,
    2019, under s. 42 of the
Extradition Act
, postponing the applicants
    surrender in light of new charges pending against the applicant in Ontario.

[4]

Mr. Levy suffers from schizophrenia, epilepsy and prostate cancer. He
    experienced several complications following surgery for his prostate cancer in
    December 2016, including extreme leg and back pain and severe incontinence and
    bladder leakage. He is the caregiver for his two adult sons, both of whom also
    suffer from schizophrenia. Counsel for the applicant submitted letters to the
    Minister from the applicants physicians, outlining their concerns that Mr.
    Levys health conditions would worsen if he were extradited. This harm would
    result from the stress of travel itself and his removal from his medical
    support network.

[5]

In light of this medical evidence, the Minister reached out to the U.S.
    authorities to inquire about the availability of treatment for Mr. Levy prior
    to and during the extradition proceedings, if he were to be found guilty and
    incarcerated. She found that Mr. Levys conditions could be treated, managed
    and eventually stabilized in custody in the U.S. and that he should be
    extradited.

Arguments

[6]

The applicant argues that the Minister is obliged to refuse surrender
    under s. 44(1)(a) of the
Extradition Act
because the applicants
    surrender would be unjust or oppressive. He submits the following grounds for
    review:

(a)

The
    Minister applied the wrong legal test and imposed too rigorous a standard in
    her decision under s. 44(1)(a) of the
Act;

(b)

The
    Minister misapprehended the issue to be the adequacy of care in the foreign
    state, as opposed to the likelihood of significant harm to the applicants health
    caused by the act itself of extraditing the applicant to the foreign state; and

(c)

The
    Minister erred by speculating that the expected harm to the applicants health
    would be eventually stabilized in the foreign state, contrary to the
    uncontradicted opinions provided by the applicants treatment team.

Analysis

[7]

The standard of review for the Ministers decision is reasonableness:
United
    States of America v. Cavan
, 2015 ONCA 664, 127 O.R. (3d) 430. Provided she
    applied the correct legal test, discussed below, and did not otherwise err in
    law or contravene the principles of natural justice, this court owes deference
    to her decision:
Cavan
,

at para. 58. Her decision is essentially
    an exercise of discretion, indicated by the statutory requirement that she be
    satisfied that the surrender would be unjust or oppressive:
Cavan
,

at
    paras. 45 and 58.

The Minister did not apply the wrong legal test

[8]

The applicant submits that the Minister applied the wrong legal tests,
    which were: outraging the standards of decency and whether ss. 7 or 12 of the
Charter
were violated.  Instead, she should have asked whether Mr.
    Levys surrender would be unjust or oppressive, as required by s. 44(1)(a).
    The applicant submits that the standard applied by the Minister was outdated
    and drawn from cases that were decided under provisions of the
Extradition
    Act
that have since been amended. The ambit of the
Extradition Act
is
    now broader; in particular, a finding that extradition would breach the
Charter
is not required for the Minister to refuse to surrender under s. 44(1)(a).

[9]

The Minister did not apply the wrong legal test. She stated at p. 5 of
    her reasons:

In determining whether to order Mr. Levys surrender, I must
    consider whether his potential incarceration in a prison in the United States
    may have such a negative impact on his health that his surrender would be
    contrary to the principles of fundamental justice under section 7 of the Charter
    or otherwise unjust or oppressive under section 44(1)(a) of the Act (
Burns
).
    Specifically, health concerns can justify a refusal of surrender where
    extradition would aggravate the adverse effects on the health of a person
    sought to the point where it would outrage the standards of decency (
Larabie
    v. R.
(1988), 42 CCC(3d) 385 (CA)).

[10]

Although she did use the language of outraging the standards of
    decency and refers to violations of ss. 7 and 12 of the
Charter
at
    different points in her reasons, taken as a whole, the decision reasonably
    applies the appropriate test of whether surrender would be unjust or
    oppressive. The Minister referred to the correct test throughout her decision.

[11]

In her conclusion on the issue of health at p. 7 of her reasons, the
    Minister stated in my view, the effect of extradition on Mr. Levy would not be
    so extreme as to shock the conscience or outrage the standards of decency,
or
    be otherwise unjust or oppressive
, notwithstanding the status of his
    health (emphasis added). Discussing his personal circumstances at p. 8 of her
    reasons, the Minister stated that I am satisfied that Mr. Levys surrender
    would
not be unjust or oppressive
, or be contrary to the principles of
    fundamental justice, notwithstanding his personal circumstances (emphasis added).
    As the respondent submits, the Minister appears to refer to the case of
R.
    v. Larabie
(1988), 42 C.C.C. (3d) 385 (Ont. H.C), as an example of a
    factually similar case, and not as setting out the standard under s. 44(1)(a).

[12]

In oral argument, the applicant raised a further issue of whether the
    Minister understood the unjust or oppressive threshold as being equivalent to
    outraging the standards of decency. That is, whether she believed that it
    would
only
be unjust or oppressive to extradite the applicant if the
    effect on his health would be so severe as to outrage the standards of decency.
    Counsel pointed to p. 5 of the Ministers decision, in which she noted the
    unjust or oppressive standard and then stated: Specifically, health concerns
    can justify a refusal of surrender where extradition would aggravate the
    adverse effects on the health of a person sought to the point where it would
    outrage the standards of decency (
Larabie
).

[13]

The concern is that the Minister meant to convey that health concerns
    could
only
justify a refusal if they outraged the standards of decency.
    The applicant submits that this is not the test, since unjust or oppressive
    is a lower standard than outraging the standards of decency.

[14]

This section of the Ministers reasons, read in isolation, is concerning
    and could support a conclusion that she applied the wrong test. However, read
    as part of the decision as a whole, this section alone does not demonstrate
    that she misconstrued the legal standard. As noted above, later in her
    decision, she finds that the impacts of extradition on the applicants health
    would not shock the conscience or outrage the standards of decency or be
otherwise
unjust or oppressive (emphasis added). She considered the standard of unjust
    or oppressive separately from the standard of outraging decency, and not as
    equivalent to it. Taken with the reasons as a whole, in which she refers to the
    correct test repeatedly, this section does not show she applied the wrong legal
    standard.

[15]

The test under s. 44(1)(a) is whether the surrender would be unjust or
    oppressive in all the circumstances. The Minister adverted to the correct test
    and her decision is not unreasonable under its framework.

The Minister did not misapprehend the issue of the effect
    of extradition on the applicants health

[16]

The applicant submits that the Minister unreasonably focused on the care
    available to the applicant in the U.S., rather than on the harm he would
    experience from being extradited. The uncontradicted medical evidence showed
    that the very act of extradition would cause significant harm to the applicants
    health. The applicant argues that the Minister addressed the wrong question in
    finding that, once this harm had already occurred, the applicant could be
    adequately cared for in the U.S.

[17]

The Minister properly adverted to the overall effect on the applicant of
    surrender and trial in the U.S. She engaged in the balancing exercise required
    of her under the
Extradition Act
. She acknowledged the evidence that the
    applicant would suffer harm to his physical and mental health upon his
    extradition. She also considered the care available to him in the U.S. before,
    during, and following his trial. Both considerations are components of the
    overall effect of surrender on the applicant.

[18]

The Minister considered the public interest in performing Canadas
    treaty obligations and the U.S. interest in prosecuting crime occurring within
    its borders. Balancing this with the effects on the applicants health and the
    treatment that would be available to him upon his arrival in the U.S., she
    found that it was not unjust or oppressive to surrender Mr. Levy. This decision
    was reasonable.

The Minister was entitled to rely on information from the
    U.S. authorities and this was not speculation

[19]

Finally, the applicant submits that the Minister should not have relied
    on institutional information from the U.S. Marshals Service and Federal
    Bureau of Prisons, because this was not necessarily provided by individual
    medical professionals. Mr. Levy presented evidence from individual doctors in
    his treatment team giving their opinions that he should not travel or stand
    trial in the U.S. He argues that the Minister could not rely on general
    information about the U.S. healthcare system but should have acquired specific
    evidence about how Mr. Levy himself would be treated upon his arrival in the
    U.S., ideally from individual healthcare professionals.

[20]

The Minister was entitled to rely on the information she received from
    the U.S. about the care available before and during trial, and in the prison
    system. She was not required to obtain evidence from individual healthcare
    professionals. Her conclusions about the care available to Mr. Levy in the U.S.
    were not speculative but were based on the evidence that she requested and
    obtained from the relevant authorities. Her decision was reasonable in light of
    all the evidence before her.

Conclusion

[21]

The Ministers decision was reasonable, and the judicial review
    application is dismissed. She did not apply the wrong legal test, did not
    misapprehend the issue of negative effects on the applicants health, and did
    not speculate about the care available in the U.S. She engaged in a balancing
    exercise and there is no basis for this court to interfere with her decision.

Released: G.R.S. November 21,
    2019

M. Tulloch J.A.

I agree. G.R. Strathy C.J.O.

I agree. Doherty J.A.


