COURT OF APPEAL FOR ONTARIO

CITATION:
United States
    v. Leonard, 2012 ONCA 622

DATE: 20120921

DOCKET: C52373, C53726 and C54112

Doherty, MacPherson and Sharpe JJ.A.

C52373 &
    C53726

BETWEEN

The Attorney General of
    Canada                                                                                (On
    Behalf of the United States of America)

Respondent

and

Zachary Leonard

Applicant/Appellant

C54112

BETWEEN

The Attorney General of
    Canada                                                                                (On
    Behalf of the United States of America)

Respondent

and

Rejean Gionet

Applicant

Marlys Edwardh and Jessica Orkin, for Zachary Leonard

Peter Copeland and Erin Dann, for Rejean Gionet

Jeffrey G. Johnston, for the Attorney General of Canada
    on Leonards appeal from committal

Nancy Dennison and Monika Rahman, for the Minister of
    Justice on the applications for judicial review of the ministers surrender
    orders

Jonathan Rudin and Emily Hill, for the intervener
    Aboriginal Legal Services of Toronto Inc.

Heard: April 12, 2012

On appeal from the judgment of Justice John S. Fregeau of
    the Superior Court of Justice, dated June 3, 2012 committing Leonard for
    extradition.

On applications for judicial review from the decisions of
    the Minister of Justice, dated April 14, 2011 (Leonard) and June 8, 2011
    (Gionet) to order the applicants surrender to the United States of America.

Sharpe J.A.:

[1]

These applications for judicial review of ministerial extradition
    surrender orders require us to consider the relevance of an accuseds
    Aboriginal background in the context of extradition. The tragic personal and
    family histories and current circumstances of both applicants closely
    correspond with many of the systemic factors identified by the Supreme Court in
R. v. Gladue,
[1999] 1 S.C.R. 688, as requiring special consideration
    on account of the crisis in the Canadian criminal justice system arising from
    the disproportionate incidence of incarceration amongst Aboriginal peoples.
    Both applicants are sought for extradition to face drug charges in the United States, where their Aboriginality and the
Gladue
principles will not be
    considered. They both could be prosecuted in Canada for the conduct that gave
    rise to the charges in the United States. They face the prospect of
    significantly harsher sentences in the United States than they would face if
    prosecuted in Canada.

[2]

The Minister of Justice concluded that the
    applicants Aboriginal status and the
Gladue
principles were not relevant to his consideration of their s. 6(1)
Charter
right to remain in Canada. The applicants submit that
    that conclusion was wrong in law and that the Ministers consideration of s.
    6(1) was legally flawed. The Minister did consider
Gladue
factors in assessing the applicants s. 7
Charter
claims. However, he decided that surrendering them to the United
    States would not shock the conscience as being contrary to the principles of
    fundamental justice in violation their right to liberty and security of the
    person Nor, he concluded, would surrender be unjust or oppressive under s. 44(1)(a)
    of the
Extradition Act
, S.C. 1999, c. 18

(the Act)
. The applicants submit that those decisions were both wrong in law
    and unreasonable.

[3]

Leonard also appeals his committal order pursuant to s. 49 of the Act,
    submitting that
the extradition judge erred by concluding that
    there was sufficient evidence to justify his committal.

FACTS

(a)

Leonard

[4]

Leonard is sought by the United States of America to face trial on a
    charge of drug trafficking. Leonard and his older cousin, Stacy Peterson, were
    arrested upon entry into the United States on April 5, 2006, after customs
    officials found approximately 46,000 ecstasy pills hidden in the van in which
    they were travelling. Peterson, who was driving the van, pleaded guilty to the U.S. drug charges, agreed to testify against Leonard and others, and was given a 30-month
    sentence. Leonard fled the United States, in violation of his terms of release,
    and returned to Canada.

[5]

The United States sought his extradition on June 19, 2008. On July 9,
    2008 the Minister of Justice issued an Authority to Proceed (ATP) specifying
    the corresponding Canadian offence, trafficking in a Schedule III substance,
    contrary to s. 5(1) of the
Controlled Drugs and Substances Act
, S.C.
    1996, c. 19. On June 3, 2010, Leonard was committed for extradition and, on
    April 14, 2011, the Minister of Justice ordered his surrender.

[6]

Leonard was 18 years old at the time of the alleged offence. He has no
    adult criminal record. He is a Canadian citizen and a member of the Rainy River
    First Nations. He has resided for almost his entire life at Manitou Rapids, the
    main reserve of the Rainy River First Nations.

[7]

It is not disputed that Leonard has suffered from the litany of
    disadvantages that the Supreme Court of Canada has attributed to Canadas sorry history of discrimination and neglect in relation to Aboriginal peoples.
    Leonard was exposed to adult substance abuse throughout his childhood. His
    mother was an alcoholic and died as a result of mixing pills and alcohol when he
    was 12 years old. His father, also an alcoholic, was not capable of caring for
    him and Leonards aunt and her husband became his foster parents. Leonard
    removed himself from foster care at age 15. He had access to alcohol and
    marihuana from age 12 onwards, and abused both substances during his adolescent
    years. He has two daughters. The elder, now eight years old, was born when the applicant
    was 16. The younger daughter is now three years old. Both children live at Manitou
    Rapids. Leonard shares custody of the older child with her mother and has sole
    custody of the two-year-old.

[8]

Many members of Rainy River First Nations, including Leonards paternal
    grandparents and all of his maternal uncles and aunts, were victims of forced
    residential schooling. The intergenerational effects of residential school
    attendance and substance abuse feature prominently in Leonards personal
    history.

[9]

Leonard attaches great importance to his Aboriginal heritage, his
    connection to his community, ancestral lands, and cultural and spiritual
    traditions.

[10]

Since
    his apprehension for extradition in 2008, Leonard has made significant
    rehabilitative efforts. He has been subject to stringent bail conditions with
    which he has fully complied. Leonard has also committed himself to parenting
    his two daughters. If he is extradited, his two-year-old daughter will have to
    be placed in foster care.

[11]

If Leonard is surrendered for extradition to the
    United States, he faces a lengthy sentence of imprisonment and the severance
    of his ties with his Aboriginal community. The presumptive sentence under the United States sentencing guidelines for the drug offence with which Leonard is charged in the United States is 15 years and 8 months to 19 years and 7 months imprisonment with no
    prospect of release until 85% of the sentence has been served. The American
    prosecutor responsible for Leonards case has stated that Leonard is likely to
    receive the presumptive sentence. The American justice system does not take
    Aboriginality into account when determining sentence and, according to the
    affidavit of the American criminal defence lawyer submitted to the Minister by
    Leonard, the U.S. prisons to which Leonard would likely be assigned if
    convicted lack culturally appropriate programs for Aboriginal inmates,

[12]

While the Public Prosecution Service of Canada (PPSC) decided that
    extradition to the United States was preferable to laying charges against
    Leonard in Canada, it is clear that he could be prosecuted here for his
    conduct. The maximum penalty he would face for the offence of trafficking under
    the
Controlled Drugs and Substances Act
would
    be 10 years. There is no minimum penalty. Given his age, lack of criminal
    record, peripheral involvement in the offence, Aboriginal status and the
    significant rehabilitative steps he has taken since his apprehension, it is
    likely that he would receive a conditional or relatively short custodial
    sentence if convicted in Canada.

(b)

Gionet

[13]

The
    United States seeks Gionets extradition for prosecution in relation to his
    alleged involvement in importing oxycodone into the United States from Canada between August 2003 and July 2004 in cooperation with two Americans. Gionet was
    indicted by a grand jury in August of 2004. Two superceding indictments
    followed in December 2004 and August 2005. The United States requested Gionets
    extradition on April 19, 2006. On January 9, 2009, the Minister of Justice
    issued an Authority to Proceed. Gionet was arrested in March of 2009 and has
    been in custody since that date pending the outcome of the extradition
    proceedings.

[14]

On
    January 4, 2010, the extradition judge committed Gionet for surrender. The
    Minister of Justice ordered his surrender on March 18, 2010. The Minister
    confirmed his decision ordering Gionets surrender with reasons dated June 8,
    2011.

[15]

Gionets
    appeal from committal was dismissed by this court on March 21, 2011:
United
    States of America v. Gionet
, 2011 ONCA 217.

[16]

Gionet
    was born on July 13, 1977 in Thunder Bay. Gionet is a registered status Indian
    and a member of the Ginogaming First Nation. He describes both of his parents
    as alcoholics. His father is French Canadian and his mother is an Ojibway woman
    who is a member of the Ginogaming First Nation. Gionets mother was sent to a
    residential school with three of her siblings.

[17]

Gionet
    completed high school and attended college after graduation. He has a
    common-law partner, a daughter born in 2007 and a step-son. He worked at a
    casino for three or four years but was dismissed for lateness that he
    attributes to his drug problem. He started using alcohol in grade nine and he
    now self-identifies as an alcoholic.

[18]

Gionet
    began using illegal drugs in grade 11, first hashish oil and marijuana
    typically combined with alcohol. He was introduced to cocaine when he was 18 or
    19 years old and, in about 2003, he began using oxycodone in combination with cocaine.
    His use of the drug became an addiction and he acknowledges that his addiction
    to oxycodone resulted in the loss of his job, his home and his vehicle, and
    strained his personal relationships. Since 2004, Gionet has attempted to
    overcome his addiction and, while he has relapsed on occasion, since his
    incarceration for extradition he has benefited from substance abuse programmes
    and says that he has not used oxycodone.

[19]

As
    much of the conduct underlying the offences for which he is sought occurred in Canada, Gionet could be prosecuted here. Gionet faces a more severe sentence in the United States. In support of his submission to the Minister, Gionet filed evidence to
    suggest that in the United States he faces a sentence of about 6 or 7 years on
    a guilty plea or 8 to 10 years if convicted after a trial. He submits that in Canada, the range for sentence is 3 to 5 years and that consideration of his Aboriginal
    status and the
Gladue
principles could yield a lower sentence.

EXTRADITION ACT
AND
CHARTER
PROVISIONS

[20]

The
    applicants invoke this courts jurisdiction to review both the judicial and the
    executive phases of the extradition proceedings in which they are implicated.

[21]

The
    extradition judge was directed by s. 29 of the
Extradition Act
to
    determine whether there is sufficient evidence of conduct that, had it
    occurred in Canada, would justify committal for trial in Canada on the offence
    set out in the authority to proceed.  Leonard appeals that decision to this
    court pursuant to s. 49. As I have noted, Gionets appeal from committal has
    already been heard and dismissed by this court.

[22]

Section
    40 of the Act provides that, following committal, the Minister of Justice may
    personally order that the person be surrendered to the extradition partner.
    Both Leonard and Gionet apply to this court pursuant to s. 57 for judicial
    review of the Ministers surrender order.

[23]

In
    support of their applications for judicial review, the applicants rely on their
    rights protected by ss. 6(1) and 7 of the
Charter
:

6(1) Every citizen of Canada has the right to enter, remain in
    and leave Canada.

...

7. Everyone has the right to life, liberty and security of the
    person and the right not to be deprived thereof except in accordance with the
    principles of fundamental justice.

[24]

The
    respondent concedes that as the applicants are Canadian citizens the surrender
    order constitutes a prima facie breach of s. 6(1), but argues that any breach
    may be justified as a reasonable limit pursuant to s. 1 of the
Charter
:

The
Canadian Charter of Rights and Freedoms
guarantees
    the rights and freedoms set out in it subject only to such reasonable limits
    prescribed by law as can be demonstrably justified in a free and democratic
    society.

[25]

The
    applicants also assert that the Minister should have refused to order their
    surrender pursuant to s. 44 of the Act:

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.

[26]

The
    applicants argue that because they are Aboriginal, they have an enhanced right
    to remain in Canada by virtue of the
Constitution Act, 1982
, s. 35(1):

The existing aboriginal and treaty rights of the aboriginal
    peoples of Canada are hereby recognized and affirmed.

[27]

The
    powers of this court on an application for judicial review from the Ministers
    surrender order are set out in s. 57(6) of the
Extradition Act
:

57(6) On an application for judicial review, the court of
    appeal may

(a) order the Minister to do any act or thing that the
    Minister has unlawfully failed or refused to do or has unreasonably delayed in
    doing; or

(b) declare invalid or unlawful, quash, set aside, set
    aside and refer back for determination in accordance with any directions that
    it considers appropriate, prohibit or restrain the decision of the Minister ...

LEONARDS APPEAL FROM THE COMMITTAL ORDER

[28]

The extradition judge found that the committal
    evidence was not sufficient to justify the appellants committal as a principal
    to the offence of trafficking, but concluded that there was sufficient evidence
    to support a reasonable inference that Leonard was a party to the offence.

[29]

Leonard
    submits that the evidence of his involvement in the alleged offence amounted to
    nothing more than his presence in the van used by his cousin to transport the
    ecstasy pills into the United States. I am unable to accept that submission.

[30]

There are four crucial pieces of evidence in
    relation to the Appellant`s alleged participation in the trafficking of drugs:

·

Petersons evidence that the appellant had
        previously assisted her in trafficking drugs;

·

Petersons evidence that the appellant was aware
        that Petersons vehicle had ecstasy concealed within it as they were crossing
        the Canada-U.S. border;

·

Petersons evidence that the appellant was aware
        that Peterson was delivering ecstasy to a third party in the U.S.; and

·

The appellants intercepted post-arrest
        statement indicating that his involvement went beyond mere presence and that he
        expected to be paid for agreeing to take that shit across the border.

[31]

I am
satisfied that there was no error on
    the part of the extradition judge in committing Leonard for extradition on the
    basis of that evidence. The extradition judge applied the correct test for
committal: was there available and reliable evidence upon which a
    reasonable jury, properly instructed, could convict a sought person for the
    corresponding Canadian offence listed in the Authorization to Proceed:
United
    States of America v. Ferras; United States of America v. Latty
, 2006 SCC
    33, [2006] 2 S.C.R. 77
. Where, as in this case, the evidence
    is circumstantial in nature, an extradition judge must weigh the evidence, in
    the sense of assessing whether it is reasonably capable of supporting the
    inferences the trier of fact will be asked to make. If the inferences required
    are within the field of inferences available on the whole of the evidence,
    nothing else matters:
Italy v. Caruana
,
[2004]
    O.J. No. 5851 (S.C.), Watt J., at para. 153, affd 2007 ONCA 488, 157 C.R.R.
    (2d) 1, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 474.

[32]

The extradition judge applied this test and concluded:

The actions of a person who accompanies a drug
    courier, for whom he has previously trafficked drugs, across an international
    border to deliver illegal drugs to a third party with the expectation of
    receiving payment for so doing cannot be equated with mere presence or passive
    acquiescence in an attempt to avoid culpability as a party to the offence of
    trafficking by transporting. The inferences suggested by the Applicant, namely,
    that Leonard was available to assist Peterson, or that his presence was an
    attempt to provide a veneer of normalcy are reasonably supportable to
    establish some evidence that Leonard was a party to the offence of trafficking.

[33]

In my view, those findings were supported by the evidence. I see no
    error on the part of the extradition judge and, accordingly, would dismiss the
    appeal from the committal order.

THE SURRENDER DECISIONS

(a)

Leonard

[34]

The
    Minister rejected Leonards submission that Aboriginal people have an enhanced
    s. 6(1)
Charter
right to remain in Canada by virtue of s. 35(1) of the
Constitution Act, 1982
and Aboriginal peoples historical ties to
    their land.

The Minister concluded that the right to remain in Canada attaches to citizenship and applies to all Canadian citizens equally. The Minister
    rejected the contention that Leonards personal circumstances, his
    Aboriginality and the
Gladue
principles had to be considered in assessing
    whether surrendering Leonard to be prosecuted in the United States was
    justified under s. 1 of the
Charter
as a reasonable limit on of his s.
    6(1)
Charter
right to remain in Canada.

[35]

The Minister acknowledged that he had taken into
    account Leonards Aboriginality and the
Gladue
principles in considering Leonards rights under s. 7 of the
Charter
. The Minister reviewed Leonards personal history in relation to the
Gladue
principles and agreed that:

many of the systemic factors identified by
    the Supreme Court of Canada in
Gladue
are
    present in Mr. Leonard's case, including his family's experience with the
    residential school system and his own history with drug and alcohol abuse.

[36]

The Minister recited at some length the
    arguments made by Leonards counsel that because of the presumptive sentence
    Leonard faces in the United States and because no consideration would be given
    to his Aboriginal status, surrender would shock the conscience as violating
    the principles of fundamental justice. He rejected that submission, concluding
    that

it would be unfair if Mr. Leonard
    could escape a trial on the offence alleged against him on the basis that he is
    an Aboriginal defendant or on the basis of his daughters needs when accused
    persons in Canada must generally face prosecution regardless of their heritage,
    or the fact that surrender would have a negative effect on their family.

[37]

The Minister noted that the American courts retained
    the jurisdiction to depart from the presumptive sentencing range and to
    consider an offenders individual circumstances as mitigating factors. The
    Minister cited case law upholding extradition despite the fact that a sought
    person faced a more severe sentence than a Canadian judge would impose for the
    same offence. He added that it would be inappropriate for Canada to impose the
    values underlying our legal system on our extradition partners and observed
    that he was satisfied that the American sentencing judge has sufficient
    discretion to impose a sentence that is fair according to American law.

[38]

The Minister concluded that it would not be
    contrary to the principles of fundamental justice or shock the conscience to
    surrender him as to deny Mr. Leonards surrender in these circumstances would
    violate Canadas treaty obligations and undermine the important interest of
    society in ensuring that persons wanted for criminal offences are brought to
    justice.

[39]

Likewise, the Minister concluded that there was nothing that
    warranted refusing the Applicants surrender pursuant to s. 44(1)(a) of the
Act
.

(b)

Gionet

[40]

The Ministers reached the same conclusion with
    respect to Gionets ss. 6(1) and 7 claims for similar reasons.

[41]

With respect to s. 6(1), the Minister rejected
    the submission that the
Gladue
factors had to
    be considered. The Minister stated that he was mindful of the submission
    regarding the impact of the Gionets aboriginal status on the severity of the
    sentence he was likely to receive in the two jurisdictions but concluded that
    he was not satisfied that the potential disparity in sentences in both
    jurisdictions would unjustifiably violate Mr. Gionets mobility rights.

[42]

The Minister rejected the submission that
    surrender would be unjust or oppressive under s. 44 of the Act or that it
    would shock the conscience under s. 7 of the
Charter
. The Minister acknowledged that Gionets personal circumstances
    reflected many of the systemic factors indentified in
Gladue
as calling for special consideration but concluded, as in Leonard,

that it would be unfair if Mr. Gionet could
    escape a trial on the serious offences alleged against him on the basis that he
    is an Aboriginal defendant or on the basis of his familys needs when accused
    persons in Canada must generally face prosecution regardless of their heritage,
    or the fact that surrender would have a negative effect on their family.

[43]

The Minister added that to refuse surrender
    would, in his view, violate Canadas treaty obligations and undermine the
    important societal interest in ensuring that persons wanted for criminal
    offences are brought to justice.

[44]

The Minister stated that the potential disparity
    of sentence was not sufficient to justify refusal to surrender and that it
    would be inappropriate for Canada to impose its values upon our extradition
    partner.

[45]

The Minister also considered and rejected
    Gionets argument that surrender should be refused on the ground of
    unreasonable delay. That argument had also been made and rejected in Gionets committal
    hearing. I note that delay was not pressed as a ground for judicial review in
    this application.

ISSUES

[46]

The applications for judicial review of the
    Ministers surrender orders raise two issues:

1)

Did the Minister err in law by failing to give
    adequate consideration to the applicants Aboriginal status and the
Gladue
principles in relation to their s. 7
Charter
claims?

2)

Did the Minister err in law by failing to
    conduct a proper analysis of the applicants s. 6(1)
Charter
right to remain in Canada?

ANALYSIS

Standard of Review

[47]

It is well established that, in keeping with the political nature of
    the surrender decision, the Ministers decision is entitled to substantial
    deference. The Minister has the
expertise and [the] obligation to
    ensure that Canada complies with its international commitments and it is the
    Minister who is in the best position to determine whether the factors weigh in
    favour of or against extradition:
Lake v. Canada (Minister of Justice)
,
    2008 SCC 23, [2008] 2 S.C.R. 761, at para. 41.

[48]

However,
    as
Lake
also states at para. 41, [r]easonableness does not require
    blind submission to the Ministers assessment and, when determining whether
    the Ministers decision falls within a range of reasonable outcomes, the court
    is required to ask whether the Minister considered the relevant facts and
    reached a defensible conclusion based on those facts. The Minister must also
    apply the correct legal test and the Ministers conclusion will not be
    rational or defensible if he has failed to carry out the proper analysis.

Issue 1. Did the Minister err in law by failing to give adequate
    consideration to the applicants Aboriginal status and the
Gladue
principles in relation
    to their s. 7
Charter
claims?

(a)

The
Gladue
principles

[49]

In
Gladue
, the Supreme Court stated, at para. 67, that [y]ears of
    dislocation and economic development have translated, for many aboriginals,
    into low incomes, high unemployment, lack of opportunities and options, lack or
    irrelevance of education, substance abuse, loneliness, and community fragmentation.
    These conditions, together with bias and systemic racism, have contributed to
    what the Court described, at para. 64, as a crisis in Canadas criminal justice system: the grossly disproportionate incidence of crime and incarceration
    amongst Aboriginal peoples. Section 718.2(e) of the Criminal Code, which
    directs sentencing judges to consider alternatives to imprisonment for all
    offenders but with particular attention to the circumstances of aboriginal
    offenders, was interpreted in
Gladue
, at para. 33, as a direction to
    sentencing judges to undertake the process of sentencing aboriginal offenders
    differently. The Court held that a different approach was required to meet
    what it had described in
R. v. Williams
, [1998] 1 S.C.R. 1128, at
    para. 58, as widespread bias against aboriginal people within Canada and evidence that this widespread racism has translated into systemic discrimination in the
    criminal justice system. In
Gladue
, the Supreme Court

adopted
    the conclusion of the Royal Commission on Aboriginal Peoples (
Gladue
,
    at para. 62) and the Aboriginal Justice Inquiry of Manitoba (
Gladue
,
    at para. 63) that Canada's criminal justice had failed to take into account the
    substantially different cultural values and experience of aboriginal people.

[50]

Gladue
mandates, at para. 66, a different framework of analysis for
    sentencing aboriginal offenders, taking into consideration
the distinct
    situation of aboriginal peoples in Canada including:

The unique systemic or background factors which may have played
    a part in bringing the particular aboriginal offender before the courts; and

The types of sentencing procedures and sanctions which may be
    appropriate in the circumstances for the offender because of his or her
    particular aboriginal heritage or connection.

[51]

The
    Supreme Court has emphasized, however, that the focus on systemic factors and
    specially tailored sanctions does not amount to reverse discrimination in
    favour of aboriginal offenders by offering them an automatic reduction in
    sentence. To the contrary, the
Gladue
approach is intended to avoid
    the discrimination against aboriginal offenders that flows from the failure of
    the justice system to address their special circumstances. As explained in
Gladue
at paras. 87-88:

The fact that a court is called upon to take into consideration
    the unique circumstances surrounding these different parties is not unfair to
    non-aboriginal people. Rather, the fundamental purpose of s. 718.2(e) is to
    treat aboriginal offenders fairly by taking into account their difference.

[T]he direction to consider these unique circumstances flows
    from the staggering injustice currently experienced by aboriginal peoples with
    the criminal justice system.  The provision reflects the reality that many
    aboriginal people are alienated from this system which frequently does not
    reflect their needs or their understanding of an appropriate sentence.

[52]

The
Gladue
approach has been reinforced by
R. v.
    Ipeelee
, 2012 SCC 13, 280 C.C.C. (3d) 265, a decision handed down
    after the Minister gave his reasons in this case.
Ipeelee
reiterates that
    the
Gladue
approach does not amount to reverse discrimination but is,
    rather an acknowledgement that to achieve real equity, sometimes different
    people must be treated differently:
Ipeelee
, at para. 71.
Gladue
recognizes that Canadian courts have failed to take into account the unique
    circumstances of Aboriginal offenders that bear on the sentencing process and
    is intended to remedy this failure by directing judges to craft sentences in a
    manner that is meaningful to Aboriginal peoples:
Ipeelee
, at para. 75.

[53]

The
Gladue
principles have been extended by decisions of
    this court beyond the context of sentencing to address the need to ensure
    appropriate treatment for Aboriginal people as they interact with the justice
    system.
Frontenac Ventures Corp. v. Ardoch Algonquin First Nation
,
    2008 ONCA 534, 91 O.R. (3d) 1, leave to appeal to S.C.C. refused, [2008]
    S.C.C.A. No. 357, applying
Gladue
in the context of civil contempt of
    court, holds, at para 57: Although
Gladue
was focussed primarily on
    the serious problem of excessive imprisonment of aboriginal peoples, the case
    in a broader sense draws attention to the state of the justice systems
    engagement with Canadas First Nations. In
R. v. Sim
(2005), 78 O.R.
    (3d) 183 (C.A.) this court held, at para. 16, that the
Gladue
principles should not be limited to the sentencing process and that the Ontario
    Review Board has an obligation to consider the principles in reviewing the
    disposition of an Aboriginal NCR accused.

(b)

Did the Minister err in law in his consideration of the
Gladue
factors?

[54]

The Minister indicated that he was prepared to
    consider
Gladue
in relation to the applicants
    s. 7 claims but not in connection with their s. 6(1) claims. In the
    circumstances of this case, there is clearly a very significant overlap in the
    application of
Gladue
to both claims. Both
    turn to a substantial degree on the issue of disparity of sentence and the
    potential impact of severe foreign sentences on aboriginal offenders. As the
Gladue
issue arises more squarely under s. 7 than under s. 6(1), the
    appropriate starting point for analysis is the consideration of
Gladue
in relation to the s. 7 claims.

[55]

I
    agree with the applicants submission that the Minister failed to apply the
    correct legal test and that he failed to carry out the proper analysis of the
    application of the
Gladue
factors when he considered the applicants
    s. 7 claims.

[56]

The
    applicants s. 7 claims required the Minister to consider whether, in the light
    of all the circumstances, the applicants surrender would be inconsistent with
    the principles of fundamental justice and hence shock the conscience of
    Canadians. As the Supreme Court of Canada held in
United States v. Burns
,
    2001 SCC 7, [2001] 1 S.C.R. 283, at para. 68, the phrase shocks the
    conscience conveys the exceptional weight of a factor such as the youth,
    insanity, mental retardation or pregnancy of a fugitive that may tip the
    balance against surrender and

should not be allowed to obscure the ultimate assessment that
    is required: namely whether or not the extradition is in accordance with the
    principles of fundamental justice. The rule is
not
that departures from
    fundamental justice are to be tolerated unless in a particular case it shocks
    the conscience. An extradition that violates the principles of fundamental
    justice will
always
shock the conscience. [Emphasis in original.]

[57]

Although
    the Minister appears to accept that the
Gladue
principles are relevant
    to the determination of applicants claims under s. 7 of the
Charter
and
    s. 44(1)(a) of the
Extradition Act
, it is my view that the Ministers
    reasons reveal that he refused to apply the
Gladue
principle that the
    interests of justice require that Aboriginal defendants be accorded special
    consideration in order to ensure that entrenched patterns of discrimination are
    not maintained and repeated. To repeat, in Leonard, the Minister stated:

...I am also of the view that it would be unfair if Mr. Leonard
    could escape a trial on the offence alleged against him on the basis that he is
    an Aboriginal defendant or on the basis of his daughters needs when accused
    persons in Canada must generally face prosecution regardless of their heritage,
    or the fact that surrender would have a negative effect on their family.

[58]

In
    Gionet, the Minister put it in virtually identical terms:

I am of the view that it would be unfair if Mr. Gionet could
    escape a trial on the serious offences alleged against him on the basis that he
    is an Aboriginal defendant or on the basis of his familys needs when accused
    persons in Canada must generally face prosecution regardless of their heritage,
    of the fact that surrender would have a negative effect on their family.

[59]

In
    my view, the Ministers reasons reveal two significant errors of law.

[60]

First,
    the Ministers reasoning rests on the proposition that to consider the
    disadvantages suffered by the applicants on account of the systemic wrongs they
    have suffered because of their Aboriginal backgrounds would be unfair to
    other accused persons. As I have already attempted to explain,
Gladue
stands for the proposition that insisting that Aboriginal defendants be treated
    as if they were exactly the same as non-Aboriginal defendants will only
    perpetuate the historical patterns of discrimination and neglect that have
    produced the crisis of criminality and over-representation of Aboriginals in
    our prisons. Yet it is on the idea of formal equality of treatment the Minister
    rests his
Gladue
analysis. That approach was soundly rejected by the
    Supreme Court in both
Gladue
and
Ipeelee
, which emphasize
    that consideration of the systemic wrongs inflicted on Aboriginals does not
    amount to discrimination in their favour or guarantee them an automatic
    reduction in sentence. Instead,
Gladue
factors must be considered in
    order to avoid the discrimination to which Aboriginal offenders are too often
    subjected and that so often flows from the failure of the justice system to
    address their special circumstances. Treating
Gladue
in this manner
    resonates with the principle of substantive equality grounded in the
    recognition that equality does not necessarily mean identical treatment and
    that the formal like treatment model of discrimination may in fact produce
    inequality:
R. v. Kapp
, 2008 S.C.C. 41, [2008] 2 S.C.R. 483, at para.
    15. The Minister refused to apply this basic
Charter
principle in his
    s. 7 analysis.

[61]

Second,
    the Minister posits his choice as being to either surrender the applicants to
    face justice elsewhere or to allow them to escape prosecution altogether. In my
    view, this analysis is seriously flawed. While no charges have yet been laid in
    Canada, if surrender were refused, it would certainly be open to the PPSC to
    reconsider and to lay charges.

[62]

As I will explain below in relation to the s.
    6(1) claim, the Ministers analysis ignores the possibility that the PPSC could
    reconsider and decide to prosecute in the event that Leonard or Gionet were not
    surrendered. Even if the Minister himself has no authority to overrule the PPSC
    decision not to lay charges in Canada, there would be nothing to stop the PPSC
    from reassessing the matter and laying charges in Canada if surrender to the
    United States is refused. By treating the choice as either surrendering the
    applicants to the United States or allowing them to escape a trial, the
    Minister has created a false dichotomy and erred in law.

[63]

I
    wish to emphasize again that just as
Gladue
is not a get out of jail
    free card (
R. v. Kakekagamick
(2006), 81 O.R. 3d 664 (C.A.), at para. 34), the application of
Gladue
in the context of extradition does
    not mean Aboriginal offenders get favoured treatment. To the contrary,
    application of
Gladue
is intended to guard against and avoid the
    discrimination that, as experience demonstrates, will occur where
    decision-makers fail to advert to the specific and particular problems faced by
    Aboriginal Canadians in our system of justice: see
Ipeelee
, at paras.
    67-68.

[64]

I
    conclude that the Ministers s. 7 analysis reveals significant legal errors. As
    the Minister erred in law and failed to apply legally relevant factors, his conclusion
    that surrender would not shock the conscience is unreasonable and must be set
    aside: see
Lake
, at para. 41;
United States of America v. Thamby
,
    2011 ONCA 333, 280 O.A.C. 298, at para. 21.

[65]

Given
    my conclusion with respect to s. 7, it is not necessary for me to deal with s.
    44(1)(a) of the Act except to say that if follows from my finding of a s. 7
    violation that the unjust or oppressive test in s. 44 has also been met:
Lake
,
    at para. 24.

Issue 2. Did the
    Minister err in law by failing to conduct a proper analysis of the applicants
    s. 6(1)
Charter

right to remain in Canada?

(a)

Extradition, the s. 6(1) right of Canadian
    citizens to remain in Canada and the
Cotroni
assessment

[66]

In
United States of America v. Cotroni; United States of
    America v. El Zein
, [1989] 1 S.C.R. 1469, the Supreme Court of Canada
held that extradition of a Canadian citizen constitutes a
prima
    facie
violation of that citizens s. 6(1)
Charter
right to remain in Canada, but that the infringement can be justified
    under s. 1: see also
Lake
, at paras. 28-30.
Both
    applicants are Canadian citizens and it is common ground that given the
    location of their alleged conduct, they both could be prosecuted in Canada for the offences corresponding to those for which they are sought for trial in the United States.

[67]

Cotroni

holds, at p. 1498, that the prosecutorial authorities
have
    an obligation flowing from s.6(1) to assure themselves that prosecution in Canada is not a realistic option in the context of the extradition regime. They are
    required to

give due weight to the constitutional
    right of a citizen to remain in Canada and ask themselves, in good faith,
    whether prosecution would be equally effective in Canada, given the existing
    domestic laws and international co-operative arrangements.
Cotroni

identified, at pp. 1498-99, a non-exhaustive list of factors that
    are to be considered in the s. 1 analysis:

In practice, the decision whether to prosecute, or not to
      prosecute in this country and allow the authorities in another country to seek
      extradition, is made following consultation between the appropriate authorities
      in the two countries. The factors that will usually affect such a decision include:

- where was the impact of the offence felt or likely to have
      been felt;

- which jurisdiction has the greater interest in prosecuting
      the offence;

- which police force played the major role in the development
      of the case;

- which jurisdiction has laid charges;

- which jurisdiction has the most comprehensive case;

- which jurisdiction is ready to proceed to trial;

- where the evidence is located;

- whether the evidence is mobile;

- the number of accused involved and whether they can be
      gathered together in one place for trial;

- in what jurisdiction were most of the acts in furtherance of
      the crime committed;

- the nationality and residence of the accused;

- the severity of the sentence the accused is likely to receive
      in each jurisdiction.

[68]

Where a Canadian citizen sought for extradition
    could be prosecuted in Canada rather than extradited to face prosecution
    abroad, the
Cotroni
factors are to be
    considered initially by the Canadian prosecutor, usually either a provincial
    Crown or the PPSC, and then again by the Minister at the surrender stage.

[69]

The Ministers decision involves a fact-intensive balancing inquiry,
    weighing not only the
Cotroni
factors but also
    political and international relations concerns.
In
United States of
    America v. Kwok,
2001 SCC 18, [2001] 1 SCR 532, at para. 64, quoting
United
    States of America v. Whitley
(1994), 94 C.C.C. (3d) 99 (Ont. C.A.), affd
    [1996] 1 S.C.R. 467, the Supreme Court held that in determining whether
    surrender would unjustifiably violate a sought persons s. 6(1) rights, [t]he
    Minister is charged with the responsibility of weighing these [
Cotroni
]
    factors and ultimately deciding whether prosecution in Canada would be equally
    effective.

[70]

The case law makes it clear that while the prosecutors decision
    not to lay charges in Canada is relevant to the Ministers
Cotroni
analysis
, the Minister cannot treat the prosecutors decision
    not to proceed with charges in Canada as conclusive of the separate and
    distinct
Controni
analysis that the Minister
    is required to conduct. In
Kwok
, Arbour J.
    stated, at para. 89, that while the Minister was entitled to receive assistance
    from local prosecutors in assessing the feasibility of a Canadian prosecution,
    that assistance does not displace the Ministers discretion or his or her
    ability to render a decision. See also
Lake
,
at para. 41, indicating that on judicial review, the court is required to
    assess the Ministers own analysis:

[T]he court must determine whether the
    Ministers decision falls within a range of reasonable outcomes. To apply this
    standard in the extradition context, a court must ask
whether the
    Minister considered the relevant facts
and reached a
    defensible conclusion based on those facts. I agree with Laskin J.A. that
the
    Minister must, in reaching his decision, apply the correct legal test
.
The Ministers conclusion will not be rational or defensible if he
    has failed to carry out the proper analysis. [Emphasis added.]

[71]

In
United States of America v.
    Reumayr
, 2003 BCCA 375, 176 C.C.C. (3d) 377, at para. 22,
    the British Columbia Court of Appeal observed that while the Minister was entitled
    to note the provincial Attorney Generals decision not to initiate a domestic
    prosecution, that decision does not bind the Minister when making his own
Cotroni
assessment. If the Ministers own
Cotroni
assessment concludes that prosecution in Canada would be
    preferable, it is generally open to the Crown to revive or initiate a domestic
    prosecution.

[72]

I agree with the applicants submission that the
    Ministers letters ordering their surrender reveal that the Minister failed to
    conduct an independent
Cotroni
assessment and
    that he effectively treated the initial decisions of the prosecutors not to
    proceed with charges in Canada as being conclusive.

[73]

The Ministers reasons for surrender in the
    Leonard case appear to endorse a framework under which the local prosecutor and
    the Minister engage in separate
Cotroni
i
nquiries:

As the Minister of Justice acting under s. 40
    of the
Act
, my role is essentially political
    in nature. As such, I have no authority to interfere with the exercise of
    prosecutorial discretion, nor do I have the authority to direct the relevant
    Canadian investigative authorities to pursue an investigation or to lay charges
    against Mr. Leonard. However,
notwithstanding the conclusions of the PPSC, I
    am required to ensure that the decision to prefer extradition over domestic
    prosecution does not unjustifiably violate Mr. Leonards s. 6(1)
Charter
rights
(
Cotroni, supra; Kwok, supra; Lake, supra
). [Emphasis  added.]

[74]

The Minister goes on  to conclude that [b]ased
    on the totality of the circumstances, it is my view that surrendering Mr.
    Leonard to the United States would not unjustifiably violate his s. 6(1)
Charter
rights.

[75]

However, the Ministers conclusion in that
    regard ultimately rests on the assumption that the PPSCs decision not to lay
    charges is determinative and that as no charges have been laid, no trial in Canada is possible:

[N]o charges have been laid in Canada. Although you submit that prosecuting Mr. Leonard in Canada would be effective and
    in the public interest, no trial is possible in the absence of charges.

Likewise, in Gionet, the Minister
    stated as follows:

I note that the United States has laid
    charges and is ready to proceed to trial. By contrast, no charges have been
    laid in Canada. Although you submit that prosecuting Mr. Gionet in Canada would be equally effective, no trial is possible in the absence of charges.

[76]

The Ministers
Cotroni
analysis ignores the possibility that the PPSC could reconsider and
    decide to prosecute in the event that Leonard or Gionet were not surrendered.

[77]

As counsel for Leonard submits, deference to the
    PPSCs decision cannot be stretched so far as to itself become a central
    justification for surrender. It would appear from his letters that the Minister
    did not review the PPSCs
Cotroni
assessment.
    Leonard asked that it be produced and the Minister refused on the ground that
    Leonard had been provided all the information the Minister had considered
    except for privileged legal advice given to him by the International Assistance
    Group (IAG).  For the purposes of these reasons I will assume, without
    deciding, the correctness of the Ministers assertion that he has no authority
    to review and modify the PPSC decision, although I note that the applicants
    strongly contest that assertion and the Minister concedes that wearing his
    other hat as Attorney General he would have the power to direct a prosecution.
    For present purposes, it suffices to say that for the Minister to rest his
    decision to surrender the applicants on the ground that PPSC has decided not to
    bring charges in Canada, a decision he has not reviewed, amounts to a form of
    unacceptably circular reasoning that effectively evades his obligation to
    conduct an independent
Cotroni
analysis and
    insulates the
Cotroni
analysis from judicial
    review.

[78]

In
    my view, by positing the choice in these cases as being between surrender and
    allowing accused drug traffickers to walk free, the Minister has misstated and
    distorted the true consequences of refusing surrender.

[79]

I
    am, of course, mindful of the importance of Canada fulfilling its treaty
    obligations to our extradition partners and of the need to defer to the
    Ministers political expertise in that regard. But that cannot justify
    improperly framing the inquiry as a stark choice between either surrender or
    allowing the applicants to escape being brought to justice.

[80]

Accordingly, I conclude that the Minister failed to conduct a
    proper legal analysis of the applicants s. 6(1)
Charter
right to
    remain in Canada and, because of the legal errors that infect the Ministers analysis,
    the surrender order must be set aside.

(b)

Did the Minister err in law by stating that the
Gladue

principles were not relevant to the
Cotroni
analysis?

[81]

As I have stated, the starting point for
    consideration of
Gladue
is s. 7 where
Gladue
has a more direct bearing. There are, however, two issues that
    arise in relation to s. 6(1) that, for the sake of completeness I will address
    as they were fully argued by the parties.

[82]

First, I do not agree with the applicants
    submission that their Aboriginal status gives them an enhanced s. 6(1) right to
    remain in Canada. The applicants have a s. 6(1) right to remain in Canada because they are Canadian citizens. As the Minister correctly stated, the s. 6(1)
    right applies to all Canadian citizens equally. Aboriginal people do, of
    course, have rights that are not enjoyed by other Canadian citizens and that
    are protected by s. 35 of the
Constitution Act
,
1982
. Those rights are derived in part from the
    distinctive relationship between Aboriginal peoples and their lands. I cannot
    agree, however, that the special connection between Aboriginal peoples and
    traditional Aboriginal lands shapes, strengthens or redefines the s. 6(1) right
    to remain in Canada, which attaches to the citizenship that Aboriginal people
    share with all other Canadians.

[83]

The second s. 6(1) issue relates to the
    Ministers statement that as
Gladue
bears upon
    sentencing and the
Cotroni
analysis involves
    prosecutorial discretion,
Gladue
need not be
    considered in relation to s. 6(1). For the following reasons, I reject the
    Ministers proposition that the
Gladue
factors
    have no bearing on prosecutorial discretion.

[84]

While most of the listed
Cotroni
factors
    bear upon the circumstances of the offence and the feasibility of prosecution
    in Canada or elsewhere, two factors do call for consideration of the individual
    circumstances of the person sought, namely,
the nationality and
    residence of the accused and the severity of the sentence the accused is
    likely to receive in each jurisdiction. As the circumstances of these cases
    demonstrate,
Gladue
clearly has a bearing on the question of the
    severity of the sentence the accused is likely to receive in each jurisdiction.
    Any reasonable evaluation of the severity of the likely sentence in each
    jurisdiction must take into account the possible effect of
Gladue
. In
    Leonard, the Minister stated that only one of the factors articulated by the
    Supreme Court of Canada in
Cotroni
, the nationality and residency of
    the accused, addresses the individual circumstances of the person sought. This
    is incorrect to the extent that the persons individual circumstances affects
    the severity of the sentence likely to be received in each jurisdiction.

[85]

The jurisprudence that I have already reviewed indicates that the
Gladue
factors are not limited to criminal sentencing but that they should be
    considered by all decision‑makers who have the power to influence the
    treatment of aboriginal offenders in the justice system (
Gladue
at
    para. 65) whenever an Aboriginal persons liberty is at stake in criminal and
    related proceedings. That category includes extradition. Indeed, the Minister
    himself appears to have recognized that the reach of
Gladue
extends
    beyond sentencing when he agreed that the
Gladue
principles are
    relevant to the determination of whether a sought persons personal
    circumstances would make extradition contrary to s. 7 of the
Charter
.

[86]

The
    sound exercise of prosecutorial discretion is fundamental to the fair
    administration of criminal justice. The decisions of prosecutors have enormous
    implications for accused persons and for the justice system. Discretionary
    decision-making was identified in the
Report of the Aboriginal Justice
    Inquiry of Manitoba
, vol. 1, ch. 4 (Winnipeg: Aboriginal Justice
    Implementation Commission, 1999),  as a source of injustice to Aboriginal
    people in the criminal justice system:

Many opportunities for subjective decision making exist within
    the justice system and there are few checks on the subjective criteria being
    used to make those decisions. We believe that part of the problem is that while
    Aboriginal people are the objects of such discretion within the justice system,
    they do not benefit from discretionary decision making, and that even the
    well-intentioned exercise of discretion can lead to inappropriate results
    because of cultural or value differences.

[87]

Given
    the central importance of prosecutorial discretion to the administration of
    Canadian justice and to the extradition process, I cannot accept the
    proposition that the
Gladue
principles have no bearing upon its
    exercise. In my view, the proper exercise of prosecutorial discretion in this
    context requires an assessment of the likely result if the case were prosecuted
    domestically and a comparison of that result to the likely outcome in the
    foreign state if the individual sought were surrender. In the case of an
    aboriginal offender, I fail to see how that assessment and comparison could be
    accomplished without reference to the
Gladue
principles.

[88]

I
    wish to emphasize here that I do not wish to be taken as saying that
    application of
Gladue
somehow requires prosecutors to lay charges in Canada rather than agree to foreign proceedings.  That would be inconsistent with
Gladue
,
    which merely states that some consideration must be given to the distinct
    situation of Aboriginal peoples in Canada to avoid the further perpetuation of
    discrimination and disadvantage.

[89]

Accordingly, I conclude that to the extent the
    Minister condoned the propriety of prosecutors exercising their discretion
    whether to lay charges on Canada or allow the prosecution to proceed elsewhere
    without regard to the
Gladue
factors, he erred
    in law.

REMEDY

[90]

Section
57(6)(b) of the Act confers broad remedial
    powers on the court hearing an application for judicial review of a Ministerial
    surrender order. We can simply declare invalid or unlawful, quash, set aside
    the surrender decision, we can set aside and refer back to the Minister for
    determination in accordance with directions, or we can prohibit or restrain
    the decision of the Minister.

[91]

The
    Ministers surrender decision is discretionary and involves the exercise of
    political judgment. Where a surrender decision is set aside by the court on
    account of legal error, but where the courts decision leaves open the
    possibility of more than one reasonable disposition, it will be appropriate to
    remit the matter to the Minister for reconsideration in the light of the legal
    principles articulated by the court. The court should not usurp the Ministers
    political role by choosing among reasonable alternatives. For example, where it
    is conceivable that the Minister could articulate reasons for surrender
    consistent with the courts articulation of the applicable legal principles or
    take additional steps, such as seeking assurances from the extradition partner,
    that would make surrender consistent with the
Charter
,

the
    matter should be remitted.

[92]

However, as provided by s. 57(6)(b) and as recognized in the case
    law, there are cases where it will be appropriate for a court to exercise a
    statutory power simply to set aside a discretionary decision, namely where
    remitting the case for reconsideration would be pointless because, in light
    of the circumstances and the evidence in the record, only one interpretation or
    solution is possible, that is, where any other interpretation or solution would
    be unreasonable:
Stetler v. The Ontario Flue-Cured Tobacco Growers'
    Marketing Board
, 2009 ONCA 234, leave to appeal to S.C.C. refused, [2005]
    S.C.C.A. No. 428, at para.
42, citing
Giguère v. Chambre
    des notaires du Québec
, 2004 SCC 1, [2004] 1 S.C.R. 3, at para.
66.
    For application of this principle in the context of extradition, see e.g.
Canada
    (Minister of Justice) v. Pacificador
(2002), 60 O.R.(3d) 685 (C.A.), leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 390.

(a)

Leonard

[93]

In my view, when all the circumstances
    pertaining to Leonard are taken into account, it would be pointless to remit
    the matter to the Minister for reconsideration. I can see no possibility that
    the Minister could marshal reasons to support surrender on the basis that
    political considerations outweigh the devastating impact of the drastically
    different treatment to which Leonard would be subjected if surrendered. There
    has been no suggestion that the Minister could seek assurances that will reduce
    that disparity.

[94]

It would be contrary to the principles of
    fundamental justice to surrender this young Aboriginal first-offender to face a
    lengthy, crushing sentence in the United States that would almost certainly
    sever his ties to his family and Aboriginal culture and community with which he
    so closely identifies. Leonards personal history corresponds precisely with
    the factors identified in
Gladue
and
Ipeelee
as requiring special consideration. It is clear that he will not
    get that consideration if surrendered to the United States and that he did not
    get it here from the Minister of Justice. His involvement in the alleged
    offence was, at worst, peripheral, and he has made substantial strides towards
    rehabilitation since his apprehension. I recognize that there is a considerable
    body of authority to the effect that extradition will not be refused simply
    because the person sought will receive a lengthier sentence in the foreign
    state: see, e.g.
United States of America v. J.H.K.
(2002), 165 C.C.C. (3d) 449 (Ont. C.A.). However, in this case, the
    sentence the applicant faces in the United States  about fifteen to nineteen
    years, as compared to a conditional or short custodial sentence in Canada  is
    so grossly disproportionate in light of the applicants personal circumstances
    that I conclude this is one of those exceptional cases where the shocks the
    conscience test outlined in
Burns
, para. 69,
    quoted above at para 88, has been met.

[95]

On these facts, there is only one possible
    conclusion and accordingly, I would set aside the surrender order but not remit
    this matter to the Minister for further consideration.

(b)

Gionet

[96]

Gionets is a 34 year old Aboriginal man whose
    personal history also corresponds precisely with the factors identified in
Gladue
and
Ipeelee
as calling for special
    consideration. His mother attended residential school and both his parents were
    alcoholics. He had serious alcohol and drug addictions and his alleged offences
    were non-violent and linked to his addiction. He has only a minor criminal record
    for shoplifting.

[97]

Gionet faces a sentence of six to ten years in
    prison in the United States if convicted for an offence alleged to have
    occurred seven years ago. He has made significant rehabilitative efforts to
    overcome his addictions and has not consumed alcohol or drugs for several
    years. He has a long-term spousal relationship and a five year old daughter.

[98]

While the disparity in sentence Gionet faces if
    surrendered to the United States is not as severe as that faced by Leonard,
    Gionet has been in custody since his arrest in March, 2009. The three and one
    half years he has already served falls within the three to five year range of
    the sentence he would likely face if prosecuted in Canada. If the matter were
    remitted to the Minister for reconsideration, Gionets time in custody would
    creep even closer to the likely six to ten year sentence in the United States.

[99]

When all these factors are considered, I find it difficult to
    imagine how the Minister could marshal reasons to support surrender on the basis
    that political considerations should override the harsh consequences that surrender
    would have on this Aboriginal offender who already has served a substantial
    period in prison and who has made substantial strides on the way to
    rehabilitation and reintegration in his community. Accordingly, I would set
    aside the surrender order but not remit the matter to the Minister for further
    consideration.

DISPOSTION

[100]

For these
    reasons, I would dismiss Leonards appeal from the committal order but allow
    his application for judicial review of the Ministers surrender order and set
    that order aside. I would also allow Gionets application for judicial review
    of the Ministers surrender order and set aside that order.

Robert J. Sharpe
    J.A.

I agree J.C.
    MacPherson J.A.

Doherty J.A. (Dissenting):

[101]

I have had the
    pleasure and advantage of reading the reasons of Sharpe J.A.  I agree with
    those reasons save and except his proposed remedy.  While I too would allow the
    applications and set aside the Ministers surrender orders, I would remit both
    matters to the Minister for reconsideration in accordance with the reasons of
    this court.

[102]

Like Sharpe
    J.A., I recognize that the decision to surrender a Canadian citizen to a
    foreign jurisdiction for trial is essentially a political decision.  The
    Minister is charged with the heavy responsibility of balancing competing
    interests and upholding Canadas international obligations under its treaties.
    The failure to meet those obligations may have serious ramifications.  Courts
    are given limited authority to review the Ministers surrender orders. They are
    not, however, responsible for Canadas international obligations. The courts
    cannot, and should not, assume those responsibilities in the context of a
    judicial review application.  The surrender decision is for the Minister.  It
    must be a rare case where the court will take it upon itself to make that
    decision.

[103]

In these cases,
    the Minister was required to consider, apparently for the first time, the
    intersection of the
Gladue
principles with those principles governing
    the exercise of the Ministers jurisdiction to surrender under the
Extradition
    Act
.   The Minister took a certain view of that interaction, which this
    court has held was wrong in law.  The Minister exercised his discretion to
    order surrender based on a misapprehension of the relevance of the
Gladue
principles.  He should have an opportunity to exercise his discretion on a
    proper application of those principles.

[104]

Sharpe J.A.
    opines that on a proper application of the
Gladue
principles surrender
    orders in both cases would inevitably violate s. 7. My colleagues analysis
    assumes that the record would be the same were the matters to be remitted to
    the Minister for reconsideration.  I do not think that assumption should be made.
    The Minister, with the benefit of my colleagues analysis of the interaction
    between the
Gladue
principles and the surrender power under the
Extradition
    Act
, might well require additional information about the backgrounds of
    Mr. Leonard and Mr. Gionet and their potential treatment in the American
    justice system were they to be surrendered for extradition.  Indeed, in light
    of my colleagues reasons, the authorities might well reconsider the merits of
    a prosecution in Canada. Were that to occur, the Minister might well decline
    surrender on that basis.

[105]

By remitting
    both matters to the Minister and giving him an opportunity to exercise his
    discretion in accordance with the principles set down in my colleagues
    reasons, we allow the parties to develop a full record responsive to the
    principles as articulated by Sharpe J.A.  Those principles emerge for the first
    time in this case.  More importantly, by remitting the matter to the Minister,
    the court ensures that the ultimate decision on the question of surrender
    remains with the entity responsible for the consequences of that decision.

[106]

If these matters
    are remitted to the Minister and the record before the Minister remains the
    same, my colleagues reasons make out a strong argument against surrender,
    particularly in Mr. Leonards case.  No doubt the Minister will appreciate the
    force of that argument.  If, however, new material is placed before the
    Minister, he will have an opportunity to address that material in light of the
    analysis of the impact of the
Gladue
principles on the surrender
    decision provided in my colleagues reasons.  In either case the Minister will
    make the decision and if necessary this court will review that decision in
    accordance with the applicable statutory provisions and the established jurisprudence.

D. Doherty J.A.

Released:
21 September, 2012