COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Hillis, 2021 ONCA 447

DATE: 20210622

sDOCKET: C68423

Simmons, Watt and Roberts JJ.A.

BETWEEN

The Attorney General
    of Canada on behalf of the United States of America

Respondent

and

Brady John Hillis

Applicant

Seth P. Weinstein and Michelle Biddulph, for the applicant

Adrienne Rice, for the respondent

Heard: October 2, 2020 by video conference

On judicial review of the
    order of surrender of the Minister of Justice, dated May 12, 2020.

Watt J.A.:

[1]

One evening in June about three years ago, Brady John Hillis (the
    applicant) was at the Fortune Bay Resort and Casino in Minnesota. There, within
    an hour, he is alleged to have inappropriately touched three girls, aged 7, 9
    and 12.

[2]

The alleged offences were reported to security staff at the casino.
    Later, an investigation was undertaken by federal authorities in the United
    States. The applicant was released and allowed to return to Canada.

[3]

The United States has decided to seek the applicants extradition so
    that he can be prosecuted in Minnesota on federal charges. A warrant was issued
    for the applicants arrest. He was arrested and later released from custody on
    a recognizance.

[4]

After an application to stay proceedings failed, the applicant consented
    to committal. A judge of the Superior Court of Justice ordered the applicants
    committal. A few months later, the Minister of Justice ordered the applicants surrender
    for extradition.

[5]

The applicant asks us to quash the surrender order of the Minister. In
    the alternative, he asks us to quash the order and remit the matter to the
    Minister to consider whether the applicant ought to be surrendered on the
    condition that he not be prosecuted for offences that could lead to a mandatory
    minimum sentence. These reasons explain why I would decline to quash the order or
    remit the matter to the Minister.

The Background

[6]

A brief history of the proceedings will provide the background necessary
    to place the claims of error in their appropriate setting.

The Principals

[7]

The applicant is a 32-year-old Canadian citizen. At the time of the
    alleged offences, he was employed as an Ontario Provincial Police officer, and
    he was a guest at the Fortune Bay Resort and Casino on the Bois Forte Indian
    Reservation in the State of Minnesota.

[8]

Each of the complainants were also guests at the resort, as were their
    parents. They were aged 7, 9 and 12 when the offences were alleged to have
    occurred.

The Allegations

[9]

In the Record of the Case and in the indictment handed down by the grand
    jury in the United States District Court, District of Minnesota, each
    complainant is described as Jane Doe, followed by a number.

[10]

Jane
    Doe 1, an enrolled member of the Bois Forte Band of Chippewa, alleged that the
    applicant offered her money if she would let him touch her bum. He rubbed his
    hand over her clothed buttocks a couple of times and up her right leg. This
    occurred in the arcade at the resort. She reported the incident to her parents
    after quickly walking out of the arcade. Jane Doe was 9 years old.

[11]

Jane
    Doe 2, an enrolled member of the Leech Lake Band of Ojibwe, alleged that while
    she was in the kiddie pool at the resort, the applicant asked her to come over
    to where he was sitting at the edge of the pool. He asked her some questions,
    then put his arm under the water and slid his hand under the leg portion of her
    swimsuit. He touched her private part with his fingers. He asked whether she
    liked the touch. Jane Doe 2 said no. The applicant said he would make it
    feel good. Jane Doe 2 tried to move away but the applicant pulled her back,
    then put his hand under the top part of her two-piece swimsuit and touched her
    breast area with his hand.

[12]

Jane
    Doe 2 told her other siblings, who then told her foster parents. Her foster
    parents and siblings contacted security at the resort. Law enforcement was
    called. Jane Doe 2 was 7 years old.

[13]

Jane
    Doe 3 was in the swimming pool at the resort with a friend. The applicant was
    swimming close to them. Jane Doe 3 and her friend decided to race each other to
    the other end of the pool. As she dove down, Jane Doe 3 felt someone touch or
    rub her buttocks. The applicant made a moaning sound. Jane Doe 3 asked her
    friend whether she (the friend) had touched her (Jane Doe 3s) buttocks. The
    friend said she did not. Jane Doe 3 told her mother about the incident as they
    were leaving the resort later that evening, but neither she nor her mother
    reported it to law enforcement that day. Jane Doe 3 was 12 years old.

The Investigation

[14]

The
    incidents were reported first to resort security. Local law enforcement was
    notified. Eventually, the Federal Bureau of Investigation took over. The
    applicant was released and permitted to return to Canada. He immediately
    reported the incident to his superiors at the Ontario Provincial Police.

The Extradition Proceedings

[15]

By a
    Diplomatic Note sent about two months after the alleged offences, the United
    States sought the extradition of the applicant to stand trial on a three-count
    indictment handed down by a grand jury in the United States District Court in
    the District of Minnesota one month earlier. The indictment contained two
    counts of abusive sexual contact with a child under 12 and a single count of
    aggravated sexual abuse of a child under 12.

[16]

Two
    days later, senior counsel with the International Assistance Group for the
    Minister of Justice of Canada issued an Authority to Proceed under s. 15 of the
Extradition Act
, S.C. 1999, c. 18 (the Act) on behalf of the
    Minister of Justice. The corresponding domestic equivalent offence is sexual
    interference under s. 151 of the
Criminal Code
, R.S.C. 1985, c. C-46
.

The Application to Stay Proceedings

[17]

Prior
    to the committal hearing, the applicant applied to a judge of the Superior
    Court of Justice for an order staying the extradition proceedings on the ground
    that they constituted an abuse of process. The application was resisted by the
    Attorney General of Canada on behalf of the extradition partner on the ground
    that there was no basis on which to conclude an abuse of process had occurred.

[18]

The
    application judge concluded that he had no jurisdiction to grant the remedy
    sought. He dismissed the application.

The Committal Hearing

[19]

With
    the applicants consent, the presiding judge ordered the applicants committal.

The Ministerial Phase

[20]

The
    Minister of Justice received written submissions from counsel for the applicant
    on two occasions. The Minister sought and obtained information from the United
    States Department of Justice about the available and likely sentences,
    including the prospect and consequences of both federal and state civil
    commitment proceedings. He also sought and obtained an opinion from the
    Attorney General for Ontario about the sentence likely to be imposed were the
    applicant to be tried in Canada for the Canadian equivalent offence of sexual
    interference.

[21]

The
    Minister also had access to the Record of the Case, four Supplementary
    Summaries of the Case and assurances from the United States Department of
    Justice that no federal civil commitment proceedings would be taken against the
    applicant if he were extradited to the United States to stand trial on the
    federal indictment in Minnesota.

The Surrender Decision

[22]

On
    May 12, 2020, the Minister advised counsel for the applicant that he ordered
    the applicants surrender. The order was subject to the condition that the
    applicant be deported at the conclusion of his criminal proceedings in the
    United States. The Minister relied on the assurance that the applicant would
    not be subject to any form of civil commitment as undertaken by the United
    States Department of Justice. An order of surrender was issued.

The Application for Judicial Review

[23]

The
    applicant invokes ss. 57(1) and (7) of the Act. He asks that we quash the
    surrender order of the Minister on the ground that it is unreasonable, the
    result of flawed legal analysis and inadequate consideration of applicable
    precedent.

[24]

The
    overarching submission of unreasonableness in the Ministers decision to order
    surrender includes several discrete complaints of legal error. To better
    understand the applicants grievances, some more background is helpful.

The Offences Charged

[25]

The
    indictment on which the United States proposes to try the applicant contains
    three counts. Two counts allege abusive sexual contact with a child under 12
    years of age. The third alleges aggravated sexual abuse of a child under 12
    years of age. As the description of the offences would suggest, the count of aggravated
    sexual abuse alleges a more serious offence than the counts of abusive sexual
    contact.

The Likely Sentencing Ranges on Conviction

[26]

The
    offence of abusive sexual contact does not attract a minimum sentence. The
    maximum sentence that can be imposed on conviction is imprisonment for life. The
    statutory sentence on conviction of aggravated sexual abuse is imprisonment for
    not less than 30 years, nor more than life.

[27]

According
    to the United States Department of Justice, the potential sentence the
    applicant would receive if convicted would depend on various factors, including
    the nature of the offences of which he is convicted. For multiple convictions,
    the sentences could be ordered to be served consecutively, although they are
    presumed to be concurrent. A plea agreement involving counts that do not
    trigger the 30-year minimum sentence could reduce the period of imprisonment.

[28]

The
    United States Department of Justice explained that, irrespective of the
    application of a statutory minimum sentence, the sentencing court, with the
    benefit of a pre-sentence report, must also consider the relevant sentencing
    guidelines. The guidelines are discretionary, not mandatory. If the applicant
    is convicted at trial, the likely range of sentence would extend from 30 years
    to imprisonment for life. Alternatively, depending on the nature of the
    convictions or any plea agreement, the guidelines range could be as low as 51
    to 63 months without a mandatory term of imprisonment.

[29]

In a
    statutory declaration, the applicants United States counsel agrees with the
    United States Department of Justice that it is difficult to predict a sentence if
    convictions were entered on the counts of abusive sexual conduct. He also agrees
    that the United States Department of Justice fairly represented the likely
    advisory sentencing guideline sentence. No settlement negotiations have taken
    place. A United States Department of Justice memo on charging and sentencing
    directs federal prosecutors to pursue mandatory minimum sentences and requires
    supervisory approval to depart from sentencing guidelines or mandatory minimum
    sentences, once charged.

Federal Civil Commitment

[30]

According
    to the United States Department of Justice, the applicant could be subject to
    federal civil commitment based on the charges included in the indictment. But
    whether federal civil commitment would occur is subject to myriad factual and
    time-specific circumstances that are extremely difficult to predict at this early
    stage of proceedings.

[31]

Proceedings
    for federal civil commitment begin when the United States Bureau of Prisons Certification
    Review Panel certifies to a federal district judge that a federal prisoner (1)
    previously engaged or attempted to engage in sexually violent conduct or child
    molestation, (2) currently suffers from a serious mental illness,
    abnormality, or disorder, and (3) as a result of that illness, abnormality
    or disorder is sexually dangerous to others. This certification stays the
    prisoners release from custody. This stay permits the United States Government
    to prove its claims in a court hearing before a judge of the federal district
    court. With or without the assistance of a psychiatric or psychological
    evaluation, the Government is required to prove by clear and convincing
    evidence that the prisoner is a sexually dangerous person.

[32]

If
    the United States Government proves that a person is a sexually dangerous
    person, the prisoner is committed to the custody of the Attorney General, who
    may order the prisoners release to a state willing to assume responsibility for
    the prisoners custody, care and treatment. Or the Attorney General may put the
    committed prisoner in a facility for treatment until a state will assume
    responsibility for the prisoner, or the prisoners condition improves to the
    point where they can be safely released. During the civil commitment, the
    facility director submits annual reports and makes recommendations about the
    need for continued commitment. Where the facility director certifies that the
    prisoner is no longer sexually dangerous to others or will not be sexually
    dangerous to others if released under a prescribed regimen, the court that
    ordered the commitment must either discharge the prisoner or hold a hearing to
    determine whether and on what conditions the prisoner should be released.

[33]

The
    Minister sought assurances from the United States Department of Justice that,
    if extradited, the applicant would not face civil commitment. The Criminal
    Division of the United States Department of Justice provided an assurance that
    it would waive the possibility of seeking civil commitment of the applicant as
    a sexually dangerous person. On completion of sentence imposed on conviction, or
    on acquittal, the applicant would not be in state custody. He would immediately
    be placed in federal deportation proceedings, which have priority over any
    state proceedings for civil commitment. Alternatively, if all statutory and treaty
    conditions have been met, the United States Department of Justice would not
    object to a request by Canada or the applicant that he be transferred to serve
    the balance of his sentence in Canada, if made within two years before the
    completion of his sentence.

State Civil Commitment

[34]

The
    State of Minnesota also has a civil commitment procedure. The procedure may be
    invoked by a county attorney filing a petition in state district court against
    a convicted person in federal custody. State civil commitment requires proof by
    clear and convincing evidence that the prisoner is a sexually dangerous person
    or has a sexually psychopathic personality as defined in the applicable state
    legislation. The state may have jurisdiction over a person for these purposes
    if a county in the state is financially responsible for the person or if the
    person is incarcerated or present in the county.

[35]

The
    United States Department of Justice advised the Minister that although the
    applicant may be subject to state civil commitment based on the charges in the
    indictment, whether civil commitment could take place is subject to many
    factual and time-specific circumstances that are extremely difficult to predict
    in this incipient stage of the proceedings.

[36]

The
    United States Department of Justice opined that the State of Minnesota may not
    have jurisdiction to civilly commit the applicant. This is because the
    applicant is not a resident of or incarcerated in Minnesota, nor is any county
    in the state financially responsible for him. Further, the state may decline to
    exercise jurisdiction for a variety of reasons. Cost. Limitations under state
    law. The fact that states do not routinely monitor federal prisoners. The
    prospect that a federal prisoner may be transferred to another federal prison
    outside of Minnesota rendering the state commitment order non-executable. The
    fact that the United States federal government already has an effective system
    in place. And the fact that states strongly support the federal assumption of
    responsibility in this aspect of corrections.

[37]

The
    applicants United States counsel describes the Minnesota sex offender civil
    commitment scheme as one of the most aggressive and far-reaching in the United
    States. The legal standards are distinctly vague and broad. They confine people
    for indeterminate periods based on predictions of future dangerousness. Prior
    convictions are not required, although most commitments occur after conviction
    and completion of imposed sentences. The decision to file a petition for civil
    commitment is made by the State of Minnesota, not the United States.

[38]

If
    the applicant is convicted and sentenced to a term of imprisonment, the United
    States Department of Justice points out, he will serve his sentence in a United
    States Bureau of Prisons facility. This facility could be anywhere in the
    United States. As someone convicted of aggravated felonies, the applicant would
    have no immigration status and would be deportable. United States Immigration
    and Customs Enforcement (ICE) would process an administrative removal order
    prior to the applicants release date. This would result in a detainer for
    deportation. The applicant would go directly from Bureau of Prisons custody to
    ICE custody for deportation to Canada, without serious threat of civil
    commitment by federal or state authorities.

Sentencing for the Domestic Equivalent Offence

[39]

The domestic equivalent offence to those charged in the United
    States District Court indictment in Minnesota is specified in the Authority to
    Proceed as sexual interference. This offence may be prosecuted by summary
    conviction or on indictment. The maximum sentence when prosecuted by indictment
    is imprisonment for a term of 14 years. The mandatory minimum sentence of one
    year has been struck down as cruel and unusual punishment under s. 12 of the
Canadian
    Charter of Rights and Freedoms
, Part I
    of the
Constitution Act, 1982
, being Schedule B to the
Canada Act 1982
(U.K.), 1982, c. 11
.

[40]

The
    Minister solicited and received from the Attorney General for Ontario an
    estimate of the range of sentence likely to be imposed on the applicant if he
    were prosecuted in Ontario and convicted of sexual interference on all three
    counts. The range of sentence suggested was 90 days to 3 years. Statutory
    aggravating factors include the age of the complainants, itself an essential
    element of the offence of sexual interference, and the fact that what was
    involved was abuse of a person under 18. The Attorney General for Ontario also
    noted the potential impact of the principles in s. 718.2(e) of the
Criminal
    Code
and
R. v. Gladue
, [1999] 1 S.C.R. 688 if the applicant
    identified as Aboriginal.

The Reasons of the Minister

[41]

The
    Minister considered whether, in all the circumstances, the applicants
    surrender would be unjust or oppressive or otherwise contrary to s. 7 of the
Charter
.
    Since the applicant could be prosecuted in Canada for the offences on which he
    has been indicted in Minnesota, with the consent of the appropriate attorney general,
    the Minister examined whether the decision to prefer extradition over domestic
    prosecution infringed the applicants mobility rights under s. 6(1) of the
Charter
.
    The Minister also acknowledged his authority to refuse surrender where there
    were compelling grounds to do so. He accepted that he could refuse surrender
    even where no
Charter
breach was established and was required to consider
    the direct and indirect potential consequences of the surrender, such as the
    punishment or treatment reasonably anticipated in the extradition partners
    jurisdiction.

[42]

In
    responding to a submission that the applicant would face indefinite civil
    commitment if surrendered, the Minister examined three issues:

i.

whether
    the applicant faces a real risk of state or federal civil commitment if
    surrendered;

ii.

if such a
    risk exists, whether ordering surrender would violate s. 7 of the
Charter
or be unjust or oppressive under s. 44(1)(a) of the Act; and

iii.

if extradition
    to face a real risk of civil commitment is barred by s. 7 of the
Charter
or
    s. 44(1)(a) of the Act, whether an assurance from the United States that no
    petition for civil commitment will be made in this case is required.

[43]

After
    briefly describing the assurance provided by the United States Department of
    Justice on behalf of the Government, the Minister concluded that the assurance
    was reliable, so that ordering the applicants surrender would not be unjust or
    oppressive or contrary to s. 7 of the
Charter
:

I am of the view that the assurance provided by the United
    States is reliable. The United States is a trusted treaty partner and I am
    entitled to rely on its undertakings (
Gervasoni v Canada (Minister of
    Justice)
(1996)
, 72 BCAC
    141). There is nothing in the record before me to suggest that the United
    States does not have the capacity to fulfill its assurance or that it is
    providing it in bad faith. It should not be lightly assumed that a foreign
    country would not act in good faith in complying with an assurance (
Argentina
    v Mellino
, [1987] 1 SCR 536).

The assurance from the United States addresses the risk that
    Mr. Hillis will face civil commitment in the United States and renders the
    remaining
Carroll
issues [the issues the Minister was considering]
    moot. Accordingly, I conclude that ordering Mr. Hillis surrender, in the face
    of such an assurance, would not be unjust or oppressive, or contrary to section
    7 of the Charter.

[44]

The Minister rejected the submission that the prospect of civil
    commitment on surrender violates the principle of double criminality due to a
    reduced standard of proof and the absence of an equivalent Canadian offence.
    The principle of double criminality, expressed in s. 3(1)(b) of the Act, is
    that Canada should not extradite a person to face punishment in another country
    for conduct that would not be criminal in Canada. The Minister said he was
    satisfied that the United States was not seeking the applicants surrender for
    the purpose of civil commitment. The purpose of the extradition request and
    extradition was to prosecute the applicant for the federal offences alleged in
    the indictment. A judge decided there was sufficient evidence to commit the
    applicant for extradition. The double criminality requirement was met based on
    the Canadian equivalent offence of sexual interference. In addition, the
    assurance that the applicant would not face civil commitment on extradition
    establishes that the extradition is not sought for that purpose.

[45]

On
    the issue of sentence disparity, the Minister noted that, death penalty cases
    apart, nothing in the relevant treaty  the
Treaty

on Extradition between
    the Government of Canada and the Government of the United States of America
,
    3 December 1971, Can. T.S. 1976 No. 3 (entered into force 22 March 1976), as
    amended by
Protocol Amending the Treaty on Extradition between Canada and
    the United States of America Signed at Washington on December 3, 1971, as amended
    by an Exchange of Notes on June 28 and July 9, 1974
, 11 January 1988, Can.
    T.S. 1991 No. 37 (entered into force 26 November 1991)  permits refusal of
    surrender based on the applicable penalties. Nonetheless, the Minister accepted
    that there is a significant disparity between the sentence the applicant would
    face if convicted of all the offences after a trial in the United States and
    that which he may receive in Canada. The Minister was required to consider
    whether the applicants surrender to face a potentially lengthy sentence in the
    United States would violate s. 7 of the
Charter
, shock the Canadian
    conscience or contravene s. 44(1)(a) of the Act.

[46]

The
    Minister rejected the applicants submission based on sentence disparity
    between the punishment likely imposed on conviction in the United States and that
    likely on conviction for the equivalent Canadian offence:

Refusing surrender on the basis of the penalty Mr. Hillis may
    face would mean that the principles of comity and fairness to other cooperating
    states in rendering mutual assistance in bringing fugitives to justice would
    not be respected.

Canadian courts have repeatedly found that surrender to face a
    potentially lengthy mandatory minimum sentence in a Requesting State does not
    violate section 7 of the Charter. [Citations omitted.]

Specifically, in cases of alleged sexual offences against children,
    Canadian appellate courts have found that potentially lengthy mandatory minimum
    sentences do not warrant denying surrender to the United States (
United
    States v Wilcox
, 2015 BCCA 39, leave to appeal to SCC refused, [2015] SCCA
    No 124;
United States v K(JH)
(2002), 165 CCC (3d) 449 (ONCA), leave
    to appeal to SCC refused, [2002] SCCA No 501).

Moreover, I must consider Mr. Hillis sentencing exposure
    singly and in combination with other relevant factors, namely, the seriousness
    of the allegations. As noted by the bail judge, at the time of the alleged
    offence, Mr. Hillis was an Ontario Provincial Police Officer. The victims are
    young Indigenous girls, members of a particularly vulnerable population, which
    has been the subject of staggering rates of violence in Canada. In my view, it
    would be a very serious offence for an officer sworn to protect and serve such
    a vulnerable population in Canada, to violate young Indigenous girls at play in
    a hotel where they are vacationing with their families.

The sentences available in the United States and Canada reflect
    the importance of deterring the alleged conduct. The fact that Mr. Hillis would
    face a lesser sentence in Canada, and would not face a mandatory minimum
    sentence, does not make the allegations against him any less serious.

I am reminded of
Burns
in which the Supreme Court of
    Canada held that individuals who choose to leave Canada leave behind Canadian
    law and procedures and must generally accept the local law, procedure and
    punishments which the foreign state applies to its own residents.

The severity of the American sentence and the disparity between
    it and a sentence Mr. Hillis would face if prosecuted in Canada is not so
    extreme or exceptional in the circumstances of this case that surrender would
    be unjust or oppressive under the Act, or shock the Canadian conscience, or
    otherwise be contrary to section 7 of the Charter.

Having regard to all of the circumstances, I am of the view
    that it would not be unjust or oppressive, or contrary to section 7 of the
    Charter to order Mr. Hillis conditional surrender to the United States.

The Arguments on Review

The Applicants Arguments

[47]

The
    applicant says that the Ministers decision to surrender him is unreasonable,
    the result of flawed reasoning and significant omissions in his analysis.

[48]

To
    begin, the applicant contends, the Minister failed to consider how it would be
    fair and just to surrender a Canadian citizen to face a minimum of 30 years in
    prison for offences that Canadian courts have found that a 1-year minimum
    sentence constitutes cruel and unusual punishment. Further, the Minister failed
    to properly consider whether exposing a Canadian citizen to a sentence that
    Canadian courts have identified as cruel and unusual would shock the conscience
    and offend the Canadian sense of what is fair, right and just. In addition, the
    Minister glossed over the impact of a finding of unconstitutionality for the
    mandatory minimum sentence for the Canadian equivalent offence. In essence, the
    Minister failed to engage with the constitutional issue.

[49]

The
    applicant argues that the protection against cruel and unusual punishment under
    s. 12 of the
Charter
is itself a principle of fundamental justice
    protected by s. 7 of the
Charter
, which is applicable to surrender
    decisions. Extradition to face a sentence far in excess of what Canadian courts
    have found to be cruel and unusual punishment violates s. 7 of the
Charter
and shocks the Canadian conscience. Where, as here, a decision has particularly
    harsh consequences for a Canadian citizen, especially where those consequences
    impinge on a persons life, liberty, dignity or livelihood, the decision maker
    must grapple with those consequences. The Minister did not do so here.

[50]

The
    applicant accepts that disparity in potential sentences between United States
    offences and their Canadian equivalent does not generally shock the conscience
    of Canadians but adds that this general rule is not unyielding. Where, as here,
    the likely United States sentence is so grossly disproportionate to the gravity
    of the offence, the circumstances of the accused and the sentence warranted for
    the Canadian equivalent offence, surrender to face imposition of such a
    sentence would shock the Canadian conscience.

[51]

The
    standard an applicant is required to meet to establish a breach of s. 12 of the
Charter
is high. What is required is a finding of gross
    disproportionality, not that the sentence is merely excessive. Canadian courts
    have found that the mandatory minimum sentence for sexual interference under s.
    151 of the
Criminal Code
offends s. 12 of the
Charter
. Although
    s. 12 does not directly apply in extradition cases, its protection against
    cruel and unusual punishment is itself a principle of fundamental justice. It
    follows that surrender to face cruel and unusual punishment amounts to a
    deprivation of liberty contrary to s. 7 of the
Charter
. Such surrender
    shocks the conscience of Canadians and warrants quashing the surrender order.

[52]

The
    applicant accepts that the shocks the conscience test only applies where
    courts have deemed the Canadian punishment to be cruel and unusual in the
    context of the actual circumstances of the fugitive. Here, where the mandatory
    minimum under s. 151 has been declared to be cruel and unusual punishment in
    similar circumstances, the shocks the conscience test is met where
    extradition is sought for a person who will face a much lengthier mandatory
    minimum sentence in the United States. That the mandatory minimum sentence is
    not certain does not mitigate or undermine the shocks the conscience test.

[53]

The
    reasons of the Minister, the applicant says, are unresponsive to the issues
    raised. They amount to no more than a generic response to a submission that the
    applicants extradition would infringe s. 7 of the
Charter
. The
    Minister relies on authorities decided before Canadian courts reached a
    consensus on the constitutional infirmity of mandatory minimum sentences. The
    conclusion was also flawed by the erroneous assessment of the seriousness of
    the alleged offences. It was unreasonable for the Minister to stray outside the
    characterization by the Attorney General for Ontario, whose report the Minister
    sought for the range of sentence appropriate for the Canadian equivalent
    offences of sexual interference. The Minister mischaracterized the seriousness
    of the offence by considering irrelevant factors and failed to consider any
    mitigating factors.

The Respondents Arguments

[54]

The
    respondent focuses first on the nature of the determination the Minister was
    required to undertake, then on the scope of our authority to review it.

[55]

The
    Ministers surrender decision resides at the extreme legislative end of the
    continuum of administrative decision making. It is largely political in nature.
    With superior expertise in Canadas international relations and foreign
    affairs, the Minister is in the best position to determine whether the factors
    weigh in favour of or against extradition. The Ministers decision is to be
    accorded substantial deference on review.

[56]

The
    appropriate standard of review for the surrender decision is reasonableness. A
    reasonableness review does not allow the court to re-assess the relevant
    factors and to substitute its own view. In a review of the reasonableness of
    the Ministers decision, a court must keep in mind the constraints imposed on
    the Minister by international law, including Canadas treaty obligations. The
    court must determine whether the Ministers decision falls within a range of
    reasonable outcomes. In an extradition case, this means that the court must ask
    whether the Minister considered the relevant facts and reached a defensible
    conclusion based on those facts. Interference is limited to exceptional cases
    of real substance. No interference should occur where, as here, the decision
    is rational, transparent and responsive to the applicants submissions.

[57]

The
    Minister recognized that he was required to assess the consequences of
    surrender under s. 7 while incorporating the underlying values of s. 12 of the
Charter
.
    He acknowledged that he was required to consider the disparity between the
    potential sentence the applicant would face if convicted in the United States and
    the potential sentence he would face if convicted of the equivalent domestic
    offence in Canada.

[58]

The
    respondent disagrees that the Minister rested his decision on a premise that
    mandatory minimum sentences in the requesting state can never shock the
    Canadian conscience. He considered the constitutional infirmity of the
    mandatory minimum sentences for the Canadian equivalent offence. He was not
    required to accept the declaration of unconstitutionality as a dispositive
    factor. It was one of many he considered in deciding whether surrender to a
    potential mandatory minimum of significantly greater magnitude would offend s.
    7. The applicant has not articulated any specific basis on which a declaration
    of unconstitutionality of the mandatory minimum sentence for the Canadian
    equivalent offence should have concretely altered the Ministers analysis in
    this case.

[59]

Further,
    the respondent continues, the Minister did not err in his assessment of the
    seriousness of the allegations against the applicant. He considered myriad
    factors. The inherent harm of the sexual violence against children and
    consequential harm to members of their family. The Indigenous status of the
    alleged victims, their sex, young age and the particular vulnerability of the
    Indigenous population. The applicants position as a police officer in Canada. This
    assessment was reasonable and commensurate with governing principles. Purported
    mitigating factors should be approached with caution in downgrading the
    wrongfulness of the offence or the harm to the victims.

The Governing Principles

[60]

Our
    review of the Ministers surrender decision engages principles drawn from the
    jurisprudence developed in response to previous challenges of a similar kind.

[61]

A
    convenient point of departure is the authority of the Minister to refuse
    surrender of a person whose committal to await surrender has been ordered after
    an extradition hearing.

The Authority to Refuse Surrender

[62]

The
    Ministers authority to order surrender of a person sought by an extradition partner
    is governed by statute, namely the Act.

[63]

Section
    40(1) of the Act confers on the Minister the discretion to personally order
    that a person committed to await surrender be surrendered to the extradition
    partner. This broad discretion must be exercised in accordance with the
    dictates of the
Charter
:
United States v. Burns
, 2001 SCC 7,
    [2001] 1 S.C.R. 283, at para. 32, citing
Kindler v. Canada (Minister of
    Justice)
, [1991] 2 S.C.R. 779, at p. 846,
per
McLachlin J. and
Canada
    v. Schmidt
, [1987] 1 S.C.R. 500, at pp. 520-21.

[64]

The
    requirement that the Ministers surrender decision be exercised in accordance
    with the
Charter
demands that the discretion demonstrate a balancing
    on the facts of each case with the applicable principles of fundamental
    justice:
Burns
, at para. 32. In some cases, this balancing and the
    ultimate requirement that the Ministers decision adhere to the principles of
    fundamental justice  the basic tenets of our legal system  may require the
    Minister to seek assurances from the extradition partner:
Burns
, at
    para. 32.

[65]

The
    Act confers a discretion on the Minister to seek any assurances the Minister
    considers appropriate from the extradition partner, or subject the surrender to
    any conditions that the Minister considers appropriate, including a condition
    that the person sought not be prosecuted, or that a sentence not be imposed on
    or enforced against the person sought, in respect of any offence or conduct other
    than what is referred to in the order of surrender: s. 40(3). In addition, in
    cases in which the Minister subjects the surrender to assurances or conditions,
    the surrender order must not be executed until the Minister is satisfied that
    the extradition partner has given the assurances or agreed to the conditions: s.
    40(4).

[66]

The
    Act also authorizes the Minister to refuse surrender in some circumstances, as
    may the provisions of the relevant extradition agreement: see, for example, ss.
    44-47 of the Act.

[67]

In
    this case, the applicant invokes s. 44(1)(a) of the Act, which requires the
    Minister to refuse surrender where the Minister is satisfied that, in all the
    circumstances, the surrender would be unjust or oppressive. A surrender order
    is unjust or oppressive where, in all the circumstances, the order would shock
    the conscience of Canadians:
Canada (Attorney General) v. Barnaby
, 2015
    SCC 31, [2015] 2 S.C.R. 563, at para. 2;
Burns
, at para. 68. The
    phrase shocks the conscience is intended to underscore the very exceptional
    nature of the circumstances that would constitutionally limit the Ministers
    decision:
Burns
, at para. 67.

[68]

Use
    of the terminology shocks the conscience is intended to convey the
    exceptional weight of a factor which, because of its paramount importance, may
    control the outcome of the balancing test on the facts of a particular case.
    The balancing test considers both the global context and circumstances that may
    constitutionally vitiate a surrender order:
Kindler
, at p. 833,
per
La Forest J. The terminology does not cloud the ultimate measuring stick, that
    is, whether the extradition accords with the principles of fundamental justice:
Burns
, at para. 68. A surrender order that breaches the principles of
    fundamental justice will always shock the conscience:
Burns
, at para.
    68.

Sentencing Disparity as a Basis to Refuse Surrender

[69]

A
    surrender order deprives the person sought of their liberty and security of
    their person. In each case, this threatened deprivation must be in accordance
    with the principles of fundamental justice:
Burns
, at para. 59;
Kindler
,
    at p. 831,
per
La Forest J.

[70]

Section
    7 of the
Charter
is concerned not only with the act of extradition, but
    also with the
potential
consequences of the act of extradition. A
    potential consequence of extradition of a person sought by the extradition
    partner for trial is the punishment that may be imposed in the event of
    conviction after trial:
Burns
, at paras. 59-60, citing
Schmidt
,
    at p. 522.

[71]

The
    surrender order of the Minister hands over the person sought to law enforcement
    authorities in the United States, the extradition partner in this case. The
    Ministers order does not impose or constitute punishment. If punishment is to
    be imposed, it will be imposed by law enforcement authorities in the United
    States.

[72]

Since
    any punishment that might be imposed in the event of conviction is determined
    by law enforcement authorities in the jurisdiction of the extradition partner,
    that punishment is not subject to review under s. 12 of the
Charter
:
Burns
,
    at paras. 51, 54-57;
Kindler
, at p. 846,
per
McLachlin J.; and
Schmidt
,
    at pp. 518-19. The degree of causal remoteness between the Ministers order
    surrendering a person and the potential imposition of a term of imprisonment, as
    one of several possible outcomes to the prosecution in the jurisdiction of the
    extradition partner, requires that our review of the Ministers order be
    conducted under s. 7 of the
Charter
, not s. 12:
Burns
, at
    para. 57.

[73]

That
    said, our review of the Ministers order to ensure its compliance with s. 7 of
    the
Charter
must keep in mind that the values underlying s. 12 form
    part of the balancing process under s. 7. In other words, the interpretation of
    s. 7, and thus our review of the Ministers decision, is informed by s. 12:
Burns
,
    at para. 57;
Kindler
, at pp. 831,
per
La Forest J., 847,
per
McLachlin J.; and
Schmidt
, at p. 522.

[74]

The
    shocks the conscience standard described earlier allows for the possibility
    that even though the rights of the person sought are to be considered in the
    context of other applicable principles of fundamental justice, which are usually
    important enough to uphold extradition, a particular treatment or punishment
    may sufficiently violate our sense of fundamental justice that it tilts the
    balance against extradition:
Burns
, at para. 69.

[75]

Disparity
    between the potential sentence the person sought would face if convicted in the
    jurisdiction of the extradition partner and the potential sentence likely
    imposed if the person sought were convicted of the Canadian equivalent offence
    is a factor to be considered in the Ministers decision and on review of that
    decision to determine whether the surrender order shocks the conscience of
    Canadians:
Canada (Justice) v. Fischbacher
, 2009 SCC 46, [2009] 3 S.C.R.
    170, at para. 54;
M.M. v. United States of America
, 2015 SCC 62, [2015]
    3 S.C.R. 973, at paras. 115-20. This difference in potential jeopardy must be
    balanced with myriad other factors, including comity and reciprocity, which
    underpin our extradition regime:
M.M.
, at paras. 26, 115-20;
Kindler
,
    at p. 847,
per
McLachlin J.

[76]

The
    mere fact of disparity between potential sentences in the jurisdiction of the
    extradition partner and those in Canada for the domestic equivalent offence is
    not sufficient to warrant refusal of a surrender order or setting it aside on
    review for want of compliance with the principles of fundamental justice. The
    disparity must be such that it meets the shocks the conscience standard:
Burns
,
    at para. 69;
Schmidt
, at pp. 522-23;
United States of America v.
    Leonard
, 2012 ONCA 622, 291 C.C.C. (3d) 549, at para. 94, leave to appeal
    refused, [2012] S.C.C.A. No. 543; and
United States of America v. Wilcox
,
    2015 BCCA 39, 321 C.C.C. (3d) 82, at para. 41, leave to appeal refused, [2015]
    S.C.C.A. No. 124.

The Canadian Equivalent Offence

[77]

The
    Canadian equivalent offence to those charged in the United States indictment is
    sexual interference, contrary to s. 151 of the
Criminal Code
. This
    offence is a dual procedure offence. When prosecuted by indictment, it is
    punishable on conviction by a minimum sentence of imprisonment of 1 year and a
    maximum sentence of 14 years: s. 151(a).

[78]

A
    sentence for an offence committed in Canada will infringe s. 12 of the
Charter
if the sentence is grossly disproportionate to the punishment that is
    appropriate to the nature of the offence and the circumstances of the offender:
R. v. Nur
, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 39;
R. v.
    Lloyd
, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 22. And a law will
    violate s. 12 if it imposes a grossly disproportionate sentence on the
    individual before the court, or if the laws reasonably foreseeable
    applications will impose grossly disproportionate sentences on others:
Nur
,
    at para. 77;
Lloyd
, at para. 22.

[79]

Challenges
    under s. 12 of the
Charter
involve a two-step analysis. The first step
    requires the court to determine what constitutes a proportionate sentence for
    the offences committed having regard to the applicable objectives and
    principles of sentencing. The second step requires the court to decide whether
    the mandatory minimum sentence requires imposition of a sentence that is
    grossly disproportionate to the offence and its circumstances:
Lloyd
,
    at para. 23.

[80]

The
    Supreme Court of Canada has established a high bar for finding that a sentence
    represents a cruel and unusual punishment. A sentence that is merely excessive
    is not grossly disproportionate. More is required. The sentence must be so
    excessive as to outrage standards of decency and be abhorrent or intolerable to
    society. The wider the range of circumstances and conduct captured by a
    mandatory minimum sentence, the greater the likelihood that the mandatory
    minimum will apply to offenders for whom the sentence will be grossly
    disproportionate:
Lloyd
, at para. 24.

[81]

The
    mandatory minimum sentence of imprisonment for one year upon conviction on
    indictment of sexual interference has been found to breach s. 12 of the
Charter
and declared to be of no force or effect:
R. v. Hood
, 2018 NSCA 18, 45
    C.R. (7th) 269, at para. 156;
R. v. J.E.D
., 2018 MBCA 123, 368 C.C.C.
    (3d) 212, at paras. 107,
per
Steel J. (dissenting, but not on this
    point), 130,
per
Mainella and leMaistre JJ.A.;
Caron Barrette c. R
.,
    2018 QCCA 516, 46 C.R. (7th) 400, at para. 116;
R. v. B.J.T
., 2019
    ONCA 694, 378 C.C.C. (3d) 238, at para. 75;
R. v. Ford
, 2019 ABCA 87,
    371 C.C.C. (3d) 250, at para. 18; and
R. v. Scofield
, 2019 BCCA 3, 52
    C.R. (7th) 379, at para. 89.

[82]

Despite
    the absence of a mandatory minimum sentence for sexual interference, this being
    the result of the declaration of constitutional invalidity just mentioned, that
    an offence involved abuse of a person under 18, or abuse of a person who is
    vulnerable because of personal circumstances, including because the person is
    Aboriginal and female, a sentencing court in Canada is required to give primary
    consideration to the sentencing objectives of denunciation and deterrence:
Criminal
    Code
, ss. 718.01 and 718.04.

The Standard of Review

[83]

The
    appropriate standard of review for the Ministers surrender decision is
    reasonableness. This is so regardless of whether the person sought contends
    that the extradition would infringe their rights under the
Charter
:
Lake
    v. Canada (Minister of Justice)
, 2008 SCC 23, [2008] 1 S.C.R. 761, at
    paras. 34, 41.

[84]

The
    Ministers surrender decision resides at the extreme legislative end of the
    continuum of administrative decision making. It is a decision that is largely
    political in nature. The Minister has superior expertise in international
    relations and foreign affairs. Thus, the Minister is in the best position to
    determine whether the factors, taken as a whole, tilt the balance for or
    against extradition:
India v. Badesha
, 2017 SCC 44, [2017] 2 S.C.R.
    127, at para. 39.

[85]

The breadth
    of the Ministers discretion is reflected in the authorities that hold that
    interference with the Ministers discretion is limited to exceptional cases of
    real substance. We are not entitled to re-assess the relevant factors and
    replace the Ministers view with our own. We must determine whether the
    Ministers decision falls within a range of reasonable outcomes. In other
    words, we ask whether the Minister considered the relevant facts and rendered a
    defensible conclusion:
Lake
, at paras. 34, 41. In this review, we must
    bear in mind the constraints imposed on the Minister by international law,
    including our treaty obligations:
Canada (Minister of Citizenship and
    Immigration) v. Vavilov
, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 114.

[86]

A
    reasonableness review focuses on the actual decision that is its subject. This
    includes not only the decision makers reasoning process, but also the outcome.
    Our role is to review. At least as a general rule, we are to refrain from
    deciding the issue ourselves. We are not to ask what decision we would have
    made had we been assigned the task of the decision maker. Nor are we to attempt
    to determine the range of possible conclusions that would have been open to
    the decision maker. Nor are we to conduct a
de novo
analysis or try to
    determine the correct solution to the problem. We are to consider only whether
    the Ministers surrender decision  including both its rationale and outcome
    was reasonable:
Vavilov,
at para. 83.

[87]

Vavilov
instructs that a reasonable decision is a decision based on an internally
    coherent and rational chain of analysis and justified in relation to the facts
    and law that constrain the decision maker. Reasonableness is concerned
    principally with the existence of justification, transparency and
    intelligibility within the decision-making process, and with whether the
    decision falls within a range of possible, acceptable outcomes defensible in
    respect of the facts and law. To be reasonable, a decision must be based on
    reasoning that is both logical and rational, and it must be tenable in light of
    the relevant factual and legal constraints:
Vavilov
, at paras. 85, 86,
    99 and 101-2.

[88]

The
    Ministers reasons must be read in light of the record and with due sensitivity
    to the extradition regime in which they were given:
Vavilov
, at paras.
    105-7. The reasons will be unreasonable if, when read holistically, they fail
    to reveal a rational chain of analysis or do reveal that the decision was based
    on an irrational chain of analysis. A decision will also be unreasonable if the
    conclusion cannot follow from the analysis undertaken or if the reasons, read
    in conjunction with the record, do not make it possible to understand the
    decision makers reasoning on a critical point:
Vavilov
, at para. 103.

The Principles Applied

[89]

As I
    will explain, I would not give effect to the submission that the surrender
    decision of the Minister is unreasonable.

[90]

At
    the outset, it is important to be clear about the potential consequences of the
    surrender order so that those consequences can be evaluated against the unjust
    or oppressive and shocks the conscience touchstone the applicant advances as
    the single ground on which a surrender should have been refused.

[91]

The
    surrender order mandates surrender on only three federal charges. Two counts of
    abusive sexual contact with a child under 12 and one count of aggravated sexual
    abuse of a child under 12. Almost by definition, civil commitment is not an
    offence, hence is not the subject of a count or charge in the indictment.
    Indeed, if the purpose for which the extradition partner sought extradition
    were civil commitment, it would be doubtful that this would be permitted by s.
    3(1)(a) of the Act.

[92]

The
    surrender order, as s. 40(3) of the Act permits, is subject to assurances.
    Those assurances are that the applicant, on return to the jurisdiction of the
    extradition partner, will not be subject to any form of civil commitment as
    set out in the attached letter from the United States Department of Justice dated
    March 13, 2020. In that letter, the United States Department of Justice indicated
    that it would not pursue civil commitment of the applicant under federal law
    and that the applicant would not be civilly committed by the state in this case.
    On the conclusion of any sentence imposed on conviction, or on an acquittal,
    the applicant, as a Canadian citizen, would immediately be placed in federal
    deportation proceedings. Thus, the applicant would not be in state custody and
    his deportation would have priority over any state civil commitment
    proceedings. Nor would the United States object to the applicants transfer to
    Canada to serve the remainder of any sentence imposed in the United States if
    the Government of Canada or the applicant requests this within two years before
    the conclusion of any sentence imposed on him.

[93]

The
    United States indictment contains three counts. Two of those counts, of abusive
    sexual contact with a child under 12, do not attract a mandatory minimum
    sentence on conviction. The third, aggravated sexual abuse of a child under 12,
    has a mandatory minimum sentence of imprisonment of 30 years.

[94]

The
    Canadian equivalent offence  sexual interference under s. 151(a) of the
Criminal
    Code
 is subject to a statutory mandatory minimum sentence of imprisonment
    for one year. But that sentence has been declared to be of no force or effect
    because it constitutes cruel and unusual punishment. As a result, there is no
    mandatory minimum sentence for the Canadian equivalent offence to those with
    which the applicant is charged in the United States. A suggested range of
    sentence, were the offences committed in Ontario and the applicant convicted on
    indictment and sentenced here, is imprisonment for a term of between 90 days
    and 3 years. Statutory provisions such as ss. 718.01 and 718.04 accord primary
    consideration to the sentencing objectives of deterrence and denunciation. Also
    relevant are the principles expounded in
R. v. Friesen
, 2020 SCC 9,
    391 C.C.C. (3d) 309, at paras. 60, 68, 70, 74, 77-78 and 101.

[95]

The
    Minister was asked by the applicant to refuse surrender on the ground that the
    surrender would be unjust or oppressive in all the circumstances under s.
    44(1)(a) of the Act. The principal ground advanced on the applicants behalf
    was two-fold:

i.

the
    significant disparity between the sentences imposed on conviction in the United
    States (a minimum sentence of 30 years) and that likely in Canada for the
    equivalent offence under domestic law (no minimum sentence and a likely
    sentence of imprisonment of between 90 days and 3 years); and

ii.

the
    potential of indefinite civil detention under state law after sentence or even
    after acquittal with no meaningful right of review.

[96]

In
    his written reasons, the Minister considered whether surrender would be unjust
    or oppressive or contrary to s. 7 of the
Charter
. He acknowledged his
    obligation to consider the direct and indirect potential consequences of
    surrender, such as the punishment or treatment reasonably anticipated in the extradition
    partners jurisdiction. The Minister accepted that he was to assess the
    implications of surrender through the lens of s. 7 of the
Charter
as
    informed by the values underlying s. 12 of the
Charter
. In declining to
    exercise his discretion to refuse surrender as unjust or oppressive or contrary
    to s. 7 of the
Charter
, the Minister considered, among other factors:

i.

the
    civil commitment regime in the State of Minnesota;

ii.

the
    principle of double criminality; and

iii.

the sentence
    disparity between the potential U.S. sentence and the potential sentence in
    Canada on conviction of the comparable Canadian offence.

[97]

The
    applicants argument that disparity warrants refusal of surrender as unjust or
    oppressive pivots on the impact of determinations by Canadian courts that the
    statutory minimum mandatory sentence of imprisonment for one year for the
    comparable Canadian offence of sexual interference offends s. 12 of the
Charter
as cruel and unusual punishment and, accordingly, is of no force or effect. The
    applicant acknowledges that the finding of constitutional invalidity under s.
    12 is based on reasonable hypotheticals and that s. 12 is not directly
    applicable to the United States minimum sentences, although it informs the
    analysis under s. 7.

[98]

As
    it seems to me, the argument advanced proves too much. The submission would
    mean that anytime a mandatory minimum sentence for a comparable Canadian
    offence was struck down as cruel and unusual punishment, if only based on reasonable
    hypotheticals, a mandatory minimum sentence of greater length in an extradition
    partners jurisdiction would constitute a sentence that would shock the
    conscience of Canadians, thus offending s. 7 of the
Charter
, and
    warrant refusal of surrender as unjust or oppressive under s. 44(1)(a) of the
    Act. This argument cannot prevail.

[99]

In combination,
    several factors persuade me that the submission that the Ministers surrender
    decision is unreasonable fails.

[100]

To begin, the
    surrender decision falls at the extreme legislative end of the continuum of
    administrative decision making and is largely political in nature. The Minister
    has superior expertise in international relations and foreign affairs. This
    attracts substantial deference on judicial review. The surrender decision involves
    a balancing of competing interests. Interference on judicial review is limited
    to exceptional cases of real substance. It necessarily follows that we are
    disentitled to re-assess or re-weigh the factors considered by the Minister and
    substitute our own view in place of that of the Minister.

[101]

In our review of the
    reasonableness of the Ministers surrender decision, we must also consider the
    restraints imposed on the Minister under international law, including under
    Canadas treaty obligations. That Canada has entered into an extradition
    agreement with another country demonstrates a certain level of confidence in
    the administration of justice in that country, even if the system may be
    different from ours, with different priorities and disparate punishments.

[102]

The discrepancy in
    potential jeopardy between the extradition partner and Canada is not
    dispositive of whether the surrender shocks the conscience of Canadians, whether
    it would offend s. 7 of the
Charter
or whether it would warrant
    refusal as unjust or oppressive under s. 44(1)(a) of the Act. Other factors include
    the offence for which the penalty may be prescribed. The nature of the justice
    system in the extradition partner. The safeguards and guarantees it affords the
    person sought. And considerations of comity.

[103]

In this case, the
    Minister was well aware of the nature and extent of the disparity and of its
    importance to his surrender decision. He took steps to obtain assurances to
    reduce that disparity. He obtained assurances that no federal civil commitment
    proceedings would (or could) be taken and that state civil commitment
    proceedings would be foreclosed. The potential of civil commitment, a key
    factor in the applicants submissions to the Minister, has been removed from
    the mix by the inclusion of assurances in the surrender order.

[104]

As the Minister recognized,
    it is well settled that, absent sentences that would invoke consequences such
    as torture, the death penalty, excision of limbs and the like, the sentencing
    regimes of other nations, despite their significant severity compared to our
    own, will not generally shock the conscience of Canadians.

[105]

Further, it is
    important to keep in mind that the issue here is
not
whether the
    30-year mandatory minimum sentence for one offence with which the applicant is
    charged in the United States  aggravated sexual abuse of a child under 12  for
    the conduct alleged here would pass constitutional muster under s. 12 of the
Charter
.
    To frame the issue in this way would extend the measuring stick of s. 12 of the
Charter
to the sentencing regime of another country, our extradition
    partner. Rather, the issue, as the Minister recognized, was whether
    surrendering the applicant to an extradition partner where he would face that
    prospect would shock the conscience of Canadians contrary to s. 7 of the
Charter
or be unjust or oppressive contrary to s. 44(1)(a) of the Act.

[106]

Relatedly, implicit in
    the applicants argument is a submission that, since our domestic criminal and
    constitutional law would assuredly affix the label cruel and unusual
    punishment to a mandatory minimum sentence of 30 years imprisonment for our
    comparable offence, to surrender a person sought to an extradition partner
    where he would be subject to such a prospect necessarily offends the principles
    of fundamental justice and is unjust or oppressive. This comes uncomfortably
    close to an extra-territorial application of s. 12 of the
Charter
.
    What is more, it would uproot in the extradition context the holding in
Lloyd
, at paras. 40 and 47,
that
    proportionality in sentencing is not itself a principle of fundamental justice.

Disposition

[107]

For these reasons, I
    would dismiss the application to review the Ministers surrender decision.

Released: June 22, 2021 JS

David Watt J.A.

I agree. Janet Simmons J.A.

I agree. L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Burns v. Brown, 2021 ONCA 450

DATE: 20210621

DOCKET: M52505

(C67833)

Brown
    J.A. (Motions Judge)

BETWEEN

Barbara
    Elizabeth Burns

Applicant

(Respondent/Responding
    Party)

and

James
    Alexander Brown

Respondent

(Appellant/Moving
    Party)

James A. Brown, acting in person

Christina Doris, for the responding
    party

Heard: June 17, 2021 by video conference

ENDORSEMENT

OVERVIEW

[1]

This is a motion in a family law appeal, in
    which the main ground of appeal concerns the amount of parenting time awarded
    to the appellant father, James Brown. He seeks an order extending the time for
    the perfection of his appeal until July 30, 2021. The respondent mother,
    Barbara Burns, opposes his request.

[2]

At all material times during this proceeding,
    the appellant was a practising family law lawyer.

BACKGROUND

[3]

The decision under appeal was released on
    November 22, 2019, following a six-day trial.

[4]

The appellant filed a notice of appeal on
    December 17, 2019. The grounds of appeal fall into two categories: (i) the
    trial judge committed errors, with a monetary effect of just over $10,000, in
    fixing child support arrears and determining inter-party debt; and (ii) the
    trial judge erred in failing to order equal parenting time in respect of the
    parties child who, at the time of the trial, was 4.5 years old.

[5]

In January 2020, the appellant ordered the trial
    transcripts.

[6]

At the end of January, he received correspondence
    from this court about its settlement conference program. The appellant wanted
    to take advantage of the program. In March 2020, the respondent agreed to
    participate. When the appellant followed up with the court office in late
    March, he was advised that a conference could not be held because of the
    courts suspension of operations during the initial stages of the pandemic.

[7]

At that point, the appellant contacted the
    transcriptionist and unilaterally directed that preparation of the transcripts
    be suspended.

[8]

This court suspended operations on March 16,
    2020 and resumed some hearings the following month. Various practice directions
    issued by the court informed the public and the Bar that while the timelines
    for serving and filing documents were suspended from March 16 until July 15,
    2020, those timelines were reinstated effective July 16, 2020.

[9]

However, it was not until early November 2020
    that the appellant contacted the court office to renew his request for a settlement
    conference.

[10]

Although the appellant did not receive a
    response from the court to his settlement conference inquiry until May 14,
    2021, on January 4, 2021 the court sent the parties a Notice of Intention to
    Dismiss Appeal for Delay if the appeal was not perfected by April 27, 2021. The
    appellant deposes that he did not receive the Notice although it bears his
    office address; the respondent deposes that she received it.

[11]

When the appellant renewed his request for a settlement
    conference in May 2021, the respondent advised that she no longer consented to
    a conference. As a result, on May 18, 2021, at the direction of Benotto J.A.,
    the appellant was advised that a settlement conference would not be held and
    that he was required to perfect his appeal within seven days, by May 25, 2021.

[12]

He did not do so. Indeed, he could not do so as
    a result of his earlier unilateral suspension of the preparation of the trial
    transcripts. The appellant has since asked the transcriptionist to continue
    with the transcript preparation. He advises that he has received transcripts
    for all but one day of the trial and anticipates the last transcript will
    arrive by the end of this month.

ANALYSIS

[13]

The overarching principle is that an extension
    should be granted if the justice of the case requires.

The length of the delay and appellants
    explanation for the delay

[14]

The appellant submits that he acted reasonably
    in unilaterally suspending the preparation of the transcripts and his delay in
    perfecting the appeal is explained by court delays resulting from COVID-19 and
    his desire to obtain a settlement conference.

[15]

In assessing the reasonableness of the
    appellants explanation, it is significant that at all material times he was a
    practising family law lawyer. I am not persuaded that the appellant has
    provided an adequate explanation for his over one-year delay in perfecting his
    appeal.

[16]

First, the settlement conference materials the
    appellant received from this court in January 2020 clearly state that to
    request a pre-hearing settlement conference the parties must submit a form
    titled Joint Request for Pre-hearing Settlement Conference. The appellant did
    not do so.

[17]

Second, those materials also clearly state that
    the parties must still comply with rule 61.05(5) of the
Rules of Civil
    Procedure
. That rule requires the appellant to file proof that he has
    ordered a transcript of all relevant evidence. While the appellant did so, he
    unilaterally suspended the preparation of the transcripts, an act inconsistent
    with the obligation imposed by r. 61.05(5), which contemplates the continuing
    preparation of transcripts once ordered. The respondent did not consent to the
    suspension. That unilateral suspension has materially contributed to the delay
    in perfecting the appeal.

[18]

Third, the appellant failed to pursue, with the
    required diligence, the availability of a settlement conference and the
    perfection of his appeal. By mid-July 2020 this courts normal operations had
    resumed, relying on videoconference technology, and the timelines under the
    rules were reinstated. Yet the appellant waited months before making a
    follow-up inquiry in November 2020 and then essentially sat on his hands until
    he received the May 14, 2021 email from the court. Regardless of the timeliness
    of communications from the court office, an appellant is obligated to pursue
    the steps in an appeal with due diligence. Mr. Brown did not.

[19]

Fourth, the respondent has submitted evidence of
    the appellants litigation conduct leading up to the trial. In an endorsement
    dated July 3, 2019, about a year and a half after the respondent had initiated
    her application (
Burns v. Brown
, 2019 ONSC 4004), W.L. MacPherson J.
    found that the appellant was litigating in bad faith stating, at para. 27 of
    her reasons:

There are ample reasons to make a finding of
    bad faith which include:

a) bringing the constitutional challenge
    and refusing to abandon same, despite being given opportunities to do so;

b) the [appellant] abandoning several
    claims (orders of May 25, 2018 and November 6, 2018
to

remain in effect and only be adjusted as of the March
    2019; request to amend pleadings;  disclosure of Canada Revenue Agency
    documents by applicant) during the motion in response to the courts inquiry only,
    without any advance notice to the applicant or her counsel;

c) the amount of time taken to deal with
    the motion including preparation of multiple factums and two-and-half-days of
    argument;

d) the [appellant] disputing the consent order
    of November, 6, 2018 suggesting that he was under duress in signing same and
    misrepresenting to the court that Nightingale J. had directed the applicant as
    to the commencement date of reduced spousal support;

e) the [appellant] alleging fraud and
    misrepresentation by the applicants former counsel, which was totally
    unfounded;

f)

the [appellant] alleging fraud by the
    applicants current counsel during argument, without any prior notice or
    foundation, and only retracting same upon questioning from the court;

g) the main objective of the motion
    amounted to nothing more than an appeal in disguise.

[20]

These judicial comments disclose that the
    appellant has engaged in various forms of delay tactics during this proceeding.
    That, in turn, informs my assessment of his conduct on this appeal since March
    2020. I regard the appellants delay in perfecting his appeal not as the product
    of forces beyond his control or attributable to the respondent but as
    indicative of an indifference to his obligation, as an appellant, to perfect
    his appeal with all due diligence.

[21]

The appellants inordinate delay in perfecting
    his appeal and the absence of a reasonable explanation for most of that delay
    weigh heavily against his request for an extension. As well, they indicate that
    he did not maintain an intention to appeal throughout the relevant period of
    time:
Issasi v. Rosenzweig
, 2011 ONCA 112, 277 O.A.C. 391, at para. 5.

Prejudice to the respondent

[22]

The respondent deposes that the appellants
    delay causes harm to her and their daughter, who is entitled to certainty when
    it comes to her parenting schedule. As well, the delay causes harm to the
    respondent due to the significant emotional and economic cost of litigating
    against the appellant who, as a self-represented lawyer litigant, does not
    incur the legal costs the respondent must incur.

Merits of the appeal

[23]

If an extension is not granted, the appellants
    appeal will be dismissed as he has not complied with the direction of Benotto
    J.A. communicated on May 18, 2021 to perfect his appeal by May 25, 2021. Consideration
    therefore must be had of the merits of his appeal.

[24]

The appellants grounds of appeal concerning the
    calculation of child support arrears and the amount of debt he owed the
    respondent are questions of fact, which are subject to a deferential standard
    of review. The appellants notice of appeal does not assert that the trial
    judge made a palpable and overriding error of fact in either regard.

[25]

While the appellant alleges that the trial judge
    misapprehended the evidence regarding his child support arrears, the trial
    judge dealt at length with the issue of child support at paras. 54-63 of her
    reasons. The trial judges reasons disclose, at para. 64, that her calculation
    of the amount of arrears was based on the parties consensus as to the amount
    of support the appellant had paid:

It is acknowledged by both parties that James
    contributed to child support during this period in the amount of $9580. The arrears
    of support for this period are, therefore, $14,835 less $9580, which equals
    $5255.

[26]

As to the amount of the debt payable by the
    appellant, I see no merit in this ground of appeal as the trial judge accepted
    the appellants position at trial writing, at para. 82:

James position is that he will pay $5000 to
    Barbara. That position is accepted. That amount, when paid, is enough to
    satisfy his obligation regarding all Visa expenses, all Jeep insurance payments
    and all Jeep loan payments up to the date of sale.

[27]

In respect of the appellants ground of appeal
    alleging inadequate parenting time, the trial judge spent considerable time in
    her reasons dealing with the issues regarding the child. She ordered joint
    custody but directed that the 4.5 year old child primarily reside with the
    respondent mother, reflecting the long-standing
status quo
. The trial
    judge specifically addressed the appellants claim for equal parenting time at
    paras. 46-51:

James asserts that the application of the
    maximum contact principle mandates that Joya should share time equally between
    her parents. This submission ignores or glosses over the aspect of the test,
    which specifies that a child should have as much contact with each parent
as
    is consistent with the best interests of the child.

James provided virtually no evidence as to why
    an equal timesharing regime would be in Joyas best interest compared to the
status
    quo
(expanded to include a midweek overnight).

James asks for a 2-2-5 parenting regime. He
    led no specific evidence to explain how he would implement this schedule, what
    changes this would entail for Joya, or what benefits this would provide for
    Joya.

James also led no evidence to outline or
    highlight deficiencies in the parenting schedule proposed by Barbara. Barbara
    proposes that James have Joya on alternate weekends and one overnight per week.
    The midweek overnight is a change from the current schedule, which includes two
    non-overnight evenings per week.

James position is simply that Barbaras
    proposal is not enough and shared parenting should be the default.

In the absence of any evidence establishing
    for the child additional benefits in a pure shared parenting regime, where the
    child is thriving and has positive relationships with each parent and with her
    extended family, the
status quo
is to be respected.

[28]

In his notice of appeal, the appellant does not
    identify any specific legal or factual error made by the trial judge in
    arriving at her parenting order. The notice simply baldly asserts that the
    trial judge erred in fact and law in imposing an Order that departed
    significantly from equal parenting time.

[29]

When considered as a whole, I regard the
    appellants grounds of appeal as very weak. As a result, I do not regard the
    prejudice to the appellant from denying an extension to outweigh his inordinate
    delay and lack of reasonable explanation for the delay.

Conclusion

[30]

Assessing the circumstances as a whole, I
    conclude that the justice of the case points to denying the appellant an
    extension of time to perfect his appeal: his delay has been inordinate; he has
    not provided a satisfactory explanation for the delay; his conduct indicates
    that he did not maintain an intention to pursue his appeal after filing the
    notice of appeal; his desultory litigation conduct reflects a pattern of delay
    throughout this litigation; the merits of his appeal are very weak; and there
    is a strong need for finality in respect of the parenting arrangements for the
    young child.

DISPOSITION

[31]

Accordingly, I dismiss the appellants motion.

[32]

The appellant shall pay the respondent her costs
    of this motion in the amount of $2,500, inclusive of disbursement and
    applicable taxes, payable within 30 days of the release of these reasons.

David Brown J.A.