COURT OF APPEAL FOR ONTARIO

CITATION:
Czech
    Republic v. Zajicek, 2012 ONCA 99

DATE: 20120214

DOCKET: C51360 and C53764

MacPherson, Juriansz and Epstein JJ.A.

BETWEEN

The Attorney General of Canada on behalf of the
    Czech Republic and the Minister of Justice of Canada

Respondents

and

Bretislav Zajicek

Appellant/Applicant

Julianna A. Greenspan, for the appellant/applicant

Jeffrey G. Johnston, for the respondent

Heard: December 12, 2011

On appeal from the committal order of Justice E. Eva
    Frank of the Superior Court of Justice, dated November 27, 2009, reported at 100
    O.R. (3d) 471, and on judicial review of the surrender order of the Minister of
    Justice dated May 25, 2011.

MacPherson J.A.:

A.
INTRODUCTION

[1]

The appellant
[1]
Bretislav Zajicek appeals from the order of Frank J. of the Superior Court of
    Justice, sitting as an extradition judge, committing the appellant into custody
    for extradition.  Mr. Zajicek also applies for judicial review of the Minister
    of Justices decision to surrender him to the Czech Republic to stand trial for
    the Czech offences of robbery and property damage.

[2]

At the committal hearing, the appellant claimed that the Czech police
    tortured him during interrogation over a two-day period and forced him to sign
    blank pages for use as false confessions.  In her reasons, the extradition
    judge declined to determine whether the appellant had been tortured, reasoning
    that the allegations should be addressed by the Minister of Justice (Minister)
    at the surrender stage of the extradition process.  The appellant contends that
    this was an error and requires a new committal hearing.

[3]

With respect to the Ministers surrender decision, the appellant submits
    that the Minister erred by concluding that despite the appellants affidavit
    detailing his torture, his surrender would not be unjust and oppressive.  The
    appellant also submits that the Minister erred by concluding that the delay by
    the Czech Republic in seeking extradition is not unjust and oppressive, and by
    ordering surrender despite missing evidence and witnesses.

[4]

For the reasons that follow, I agree with the appellants first
    submission.  The extradition judge erred by not addressing the appellants
    claim that he was tortured by Czech police.  I would order a new committal
    hearing.

B.
FACTS

(1)
The parties and events

[5]

By Diplomatic Note dated November 8, 2007, the Czech Republic requested
    the extradition of the appellant for prosecution for the offences of robbery
    and damage to another persons property, contrary to the
Czech

Criminal Code
.  The alleged offences
    occurred between November 2 and 18, 1996, when the appellant, who was 19 years
    old at the time, and his accomplices are said to have broken into two
    electronics shops and a garage and to have stolen electronic equipment and a
    motor vehicle.  In addition, they were alleged to have stolen gold chains from
    a jewellery store.  The Czech Republic also alleged that the appellant and his
    accomplices caused damage to the electronics shops.  The value of the stolen
    items and the property damage was approximately $23,607CDN and $7,565CDN
    respectively.

[6]

The committal evidence is summarized in the Record of the Case (ROC).
    A judicial authority in the Czech Republic has certified that the evidence is
    available for trial and was gathered according to the law of the Czech Republic,
    as required by s. 33(3)(a) of the
Extradition Act
, S.C. 1999, c. 18.
    The evidence implicating the appellant in the offences includes an alleged
    confession that he is said to have provided to Czech police in the presence of
    his counsel.  The ROC also refers to statements provided to Czech investigators
    by three of the appellants alleged accomplices, Petr Kouril, Petr Gasta and
    Marcel Petrik, who are said to have participated in the thefts with the
    appellant.

[7]

The appellant immigrated to Canada on September 13, 1997 and was granted
    refugee status on October 7, 1997.  He obtained Permanent Resident status on
    November 17, 1999.  Seven years later, on April 13, 2006, the Czech Republic
    issued an arrest warrant for the appellant.  After the Canadian Government
    received the Diplomatic Note requesting the appellants extradition, the
    appellant was arrested on November 19, 2008.

(2)
The committal decision

[8]

On November 20, 2009, an extradition hearing took place before Frank J.
    of the Superior Court of Justice.  The appellant conceded that he was the
    person sought by the Czech Republic and that the conduct alleged against him
    was conduct that would amount to the Canadian offences set out in the Authority
    to Proceed.  However, he advanced three arguments against committal: (1) his
    right to life, liberty and security of person pursuant to s. 7 of the
Charter
was breached by the torture he suffered at the hands of the Czech police; (2)
    the delay by the Czech Republic in seeking extradition warranted a stay of the
    extradition proceedings; and (3) there was insufficient evidence in the ROC to
    warrant committal as his confession was manifestly unreliable and the
    statements of other persons failed to meet the minimum standard for evidence.

[9]

The extradition judge rejected each of these submissions.  She determined
    that even without the evidence of the appellants alleged confession, there was
    sufficient evidence to warrant a committal.  She declined to consider the
    appellants claim that his confession was obtained through torture by the Czech
    police, concluding that it is at the Ministerial stage that the allegations of
    torture are to be considered.  She reasoned that the nine-year delay in laying
    charges against the appellant in the Czech Republic was also a matter for the
    Minister to consider at the next stage of the extradition procedure.  Finally,
    she determined that the evidence certified in the ROC, especially the statements
    of two alleged accomplices, warranted a committal order.

(3)
The surrender decision

[10]

In
    opposition to his surrender, the appellant made extensive submissions to the
    Minister on March 26, 2010, February 22, 2011, April 5, 2011, and April 18,
    2011.  Several of these submissions referred to the various reports about the
    case sent to the Minister by the International Assistance Group of the
    Department of Justice.  These reports had been disclosed to the appellant so
    that he would have an opportunity to respond.

[11]

The
    Minister did not accept the appellants submissions.  In his decision dated May
    25, 2011, he rejected the appellants arguments about torture, delay, the
    reliability and availability of the committal evidence, and the appellants Convention
    refugee status.

C.
Issues

[12]

Although
    the appellant raises eight issues in his factum, the combination of an overlap
    of some issues and the way the appellant presented his arguments at the appeal
    hearing leads me to frame the issues in this fashion:

(1)

Did the extradition judge err in
    not considering the appellants claim that he was tortured during the Czech
    Republics police investigation?

(2)

Did the Minister err by concluding
    that it would not be unjust and oppressive to surrender the appellant in light
    of the evidence that he was tortured by Czech police?

(3)

Did the Minister err by concluding
    that the Czech Republics delay in seeking extradition did not render
    extradition unjust and oppressive?

(4)

Did the Minister err by concluding
    that, despite missing evidence and witnesses, the surrender of the appellant
    would not be unjust and oppressive?

D.
analysis

(1)

Extradition judge  torture issue

[13]

The
    appellants central attack on the committal decision is that the extradition
    judge erred in not considering whether the appellant was tortured.

[14]

At his
    committal hearing, the appellant sought to introduce as evidence a nine-page
    affidavit he had sworn shortly before the hearing commenced.  In this
    affidavit, the appellant alleged that he had been subject to very serious
    physical and psychological mistreatment by several Czech Republic police
    officers in two different police stations over a two-day period in the late
    autumn of 1996.  Particulars of the alleged police misconduct included
    allegations that the appellant had been handcuffed to a hot radiator that
    caused his skin to burn, he was punched and kicked repeatedly, he was beaten
    with a baton, his head was dunked in a fish tank, he was aggressively
    questioned about various thefts, and he was forced to sign blank pieces of
    paper that were turned into a false confession.

[15]

Based on
    this evidence, the appellant sought a stay of proceedings on the grounds that
    the actions of the Czech Republic police violated his s. 7
Charter
rights such that extradition would be an abuse of process.

[16]

The
    extradition judge found that there was enough evidence to order committal even
    without the appellants confession.  Accordingly, she reasoned that any abuse
    associated with the confession did not engage the courts s. 7
Charter
jurisdiction and was a matter for the Minister.  The extradition judge
    interpreted her
Charter
jurisdiction as being circumscribed to
issues
directly related to the fairness
    of the committal hearing.  In her view, the fairness of the hearing was not
    affected by allegations concerning the manner in which the appellants
    confession was obtained where this evidence was not relied upon in support of
    his committal.  For the same reason, the extradition judge deemed it
    unnecessary to determine the admissibility of the appellants affidavit
    describing the alleged torture.

[17]

The
    extradition judge did not have the benefit of this courts decision in
United
    States of America v. Khadr
, 2011 ONCA 358, leave to appeal to S.C.C.
    refused, [2011] S.C.C.A. No. 316, when she engaged in the above reasoning.  I
    agree with the appellant that if
Khadr
had been in play, the
    extradition judge would have approached the appellants allegation of torture
    in a different way.

[18]

In
Khadr
,
    the extradition judge found that Khadr was physically abused during the first
    three days of his fourteen-month detention by intelligence officials in
    Pakistan.  On appeal, Sharpe J.A. said, at para. 4:

There is no appeal against the extradition judges finding that
    the human rights violations were shocking and unjustifiable.  Because of the
    requesting states misconduct, proceeding with the extradition committal
    hearing threatened the courts integrity.  Responding to that threat was a
    judicial matter to be dealt with by the extradition judge, not an executive
    decision reserved to the Minister.

[19]

Here, the
    appellant alleges that he was detained and mistreated for two days and signed
    blank pieces of paper presented to him by Czech police officers, which may form
    the basis of his alleged confession.  Although the extradition judge did not
    rely on the confession in making her committal decision, the alleged
    mistreatment of the appellant implicates the Canadian extradition courts
    integrity.  Because the alleged abuse involves the Requesting States
    investigation of the offences for which the appellant is sought, the abuse is
prima
    facie
a judicial matter to be dealt with by the extradition judge.

[20]

The
    respondent acknowledges that the extradition judge in this case interpreted her
Charter
jurisdiction in a narrow way that this court has since rejected
    in
Khadr
.  However, the respondent contends that the proviso in s. 53 of
    the
Extradition Act
should be applied to uphold the appellants
    committal in this case.  Section 53 provides, in relevant parts:

53.     On the hearing of an appeal against an order
    of committal of a   person, the court may

(a)     allow the appeal, in respect of any
    offence in respect of    which the person has been committed, if it is of the      opinion

. . .

(ii)      that the order
    of committal should be set aside on   the ground of a wrong decision on a
    question of          law, or

. . .

(b)     dismiss the appeal

. . .

(ii)      even though
    the court of appeal is of the opinion     that on the ground referred to in
    subparagraph     (a)(ii) the appeal may be decided in favour of the          appellant,
    if it is of the opinion that no substantial           wrong or miscarriage of
    justice has occurred and   the order of committal should be upheld.

[21]

In making
    this submission, the respondent relies extensively on the record that was
    before the Minister when he addressed the appellants torture claim in the
    context of the surrender decision.  When the Minister became aware of the
    appellants claim, he, quite properly, requested a response from the Czech
    Republic.  The Czech Republic denied that the appellant provided his
    confessions under torture. The Czech Republic provided information in support of
    its denial, including a statement that the appellant attended for three
    interviews with the police in 1996 and 1997 and that on those occasions the
    interviews took place in the presence of one or both of his lawyers.  Thus, the
    Czech Republic maintains that the torture the appellant claims is simply not
    possible.

[22]

There is
    no doubt that there are weaknesses in the appellants claim of torture.  On the
    appellants side, the weakness is that his claim is a bald (albeit detailed),
    uncorroborated claim.  On the respondents side, there is
now
a good
    deal of material in the record rebutting the claim.

[23]

However,
    in my view the bottom line at this juncture can be summarized in three
    propositions.

[24]

First, an
    allegation of serious abuse by the Requesting State directly implicates the
    Canadian extradition courts integrity; this is the simple message of
Khadr
.

[25]

Second,
    the extradition judge, who did not have the benefit of
Khadr
, did not
    address this issue; she certainly would have done so if
Khadr
had been
    decided before the extradition hearing.  The effect of this error is that the
    appellant was deprived of the opportunity to have his
Charter
application decided on the merits, with his evidence and submissions considered
    and, in the event that a stay was not granted, to be provided with the
    extradition judges reasons that might in turn ground an appeal.

[26]

Third,
    while there is now a substantial record concerning the alleged abuse, most of
    this record was not available at the committal hearing.  As noted above, the
    factual record before this court has expanded since the initial committal
    hearing.  At the surrender stage, the Minister, having sought a response from
    the Czech Republic with respect to the allegation of torture, was provided with
    additional information.  Counsel for the appellant responded to this new
    information with arguments intending to cast doubt on the veracity and
    reliability of the information, based on alleged internal inconsistencies and
    the delay accompanying the release of information by the Czech authorities.
    The expanded record available to date is known.  However, what other
    information might come to light is not known.

[27]

Against
    this backdrop, the fair result is to allow the appellant to have a new
    committal hearing where his claim of torture will be addressed on the merits in
    the context of the procedural rules and legal tests that govern committal
    proceedings.  In the end, as Sharpe J.A. said in
Khadr
at para. 4,
    responding to a potential threat to the courts integrity arising in an
    extradition context is a judicial matter to be dealt with by the extradition
    judge, not an executive decision reserved to the Minister.  The respondent
    would have this court slide the record before the Minister and the contents of
    his surrender decision over into a proviso analysis under s. 53(b)(ii) of the
Extradition
    Act
.  However, doing so in this case
would not respect the important procedural and substantive differences between
    the two stages of the extradition process.  The decision before the Minister is
    not the same as the decision before the committal judge; it would not be fair
    to deprive the appellant of the opportunity to argue for a stay at the
    committal stage.

[28]

I appreciate
    that judicial economy and expediency are important considerations in the
    context of extradition proceedings.  However, in my view, in the circumstances
    of this case, where eight years passed between the time of the alleged offences
    and the appellants being sought by the Requesting State, those considerations
    should not be allowed to overtake his right to a committal hearing based on the
    applicable law and a full record.

[29]

I do not
    agree with the suggestion that a new committal hearing is unnecessary because
    an extradition judge could not possibly order a stay in a case like this one, in
    which uncorroborated allegations of torture have been controverted by the
    Requesting State. I would not speculate, at this stage, about whether a stay
    would be appropriate on the record before a new committal hearing.

[30]

In light
    of this conclusion, it is unnecessary to engage in the judicial review of the
    Ministers decision.

E.      DISPOSITION

[31]

I would
    allow the appeal from the committal decision and order a new hearing.

J.C. MacPherson J.A.

I agree.
G.J.
    Epstein J.A.

Juriansz J.A. (Dissenting):

Introduction

[32]

I
    have read the reasons of MacPherson J.A., and I cannot agree with them or the
    conclusion he reaches. While the extradition judges failure to permit the
    appellant to advance his application for a stay was an error, I would,
    nevertheless, dismiss the appeal of the committal order. I am driven to a
    different conclusion than MacPherson J.A. because I take a narrower view of the
    implications of this courts decision in
United States of America v. Khadr,
2011 ONCA 358, 106 O.R. (3d) 449 (C.A.) for subsequent cases.
Khadr
does not stand for the proposition that a stay of proceedings is appropriate in
    any case where officers of the requesting state have inflicted physical
    violence on the person being extradited. In this case, the appellants
    allegations did not provide any basis for a stay of the extradition
    proceedings, and, in any event, the Minister of Justice decided a stay was not
    warranted after considering the appellants evidence and arguments. There has
    been no miscarriage of justice and no useful purpose would be served by
    remitting the matter for a new committal hearing.

[33]

I
    also conclude that the Ministers decision was entirely reasonable and I would
    dismiss the judicial review application as well.

Facts

[34]

MacPherson
    J.A. has set out the necessary facts. Nonetheless, I would add a few additional
    details.

[35]

The
    alleged accomplices of the appellant specifically indicated in their statements
    that the appellant participated in the crimes with which he has been charged.
    The extradition judge said, at para. 26, The statement of one of the
    accomplices in each of the charges is sufficient to establish a prima facie
    case of theft and mischief against Mr. Zajicek as charged. On the basis of the
    accomplices statements, a committal is warranted.

[36]

The
    information provided by the Czech Republic not only stated that the appellant
    was interviewed in the police station in the presence of one or both of his
    lawyers, but also that he signed a confession in the presence of his lawyer who
    signed the confession as well.

[37]

The
    appellant alleged he was forced to sign at the bottom of a blank sheet of paper
    that was turned into his confession. The Czech Republics response to the
    Minister states that the appellants signature is not at the bottom of the
    page, but exactly where the text ends.

[38]

Canadas
    recognition of the appellant as a Convention Refugee was entirely unrelated to
    his allegations of torture by the Czech police. His claim of refugee status was
    based on his marriage to a woman of the Roma race. In his Personal
    Information Form, the appellant did not make any claim that he had been
    tortured by the Czech police. Moreover, he did not disclose to the Immigration
    and Refugee Board or to Canadian immigration officials that he was under
    criminal investigation in the Czech Republic.

[39]

Before
    proceeding with the analysis, I comment on the terminology the appellant has
    chosen. The municipal police suspected Mr. Zajicek of committing local
    robberies and took him to a local police station where he alleges he was beaten
    while interrogated and forced to sign a confession. He did not allege that the
    beating caused him any injury, or that he required medical attention of any
    kind. The appellant describes his treatment by the Czech police as torture.
    The description is accurate. The infliction of physical violence to extract a
    confession to a crime falls clearly within the meaning of torture. Torture,
    though, is a general term, and its broad meaning includes the infliction of
    excruciating pain and even mutilation for some other purpose such as extraction
    of state intelligence. The alleged violence inflicted on the appellant by the
    police investigating local crimes is often described as police brutality.
    Police brutality is a completely unacceptable form of torture. That said, the
    term police brutality, in my view, more specifically fits the appellants
    particular allegations of torture.

Section 53(b)(ii) of the
Extradition Act

[40]

In
    light of the
Khadr
decision, the extradition judge erred by refusing
    to consider the appellants application for a stay of proceedings because his
    alleged mistreatment did not bear on the fairness of the extradition process.
    Despite that error, there are two different bases on which I would dismiss the
    appeal against the committal order. First, I would apply s. 53(b)(ii) of the
Extradition
    Act, S.C.
1999, c. 18 that allows this court to dismiss an appeal if no
    substantial wrong or miscarriage of justice has occurred. Second, I would
    conclude that applying the law post
Khadr
to the record that was
    before the committal judge would not justify a stay of the extradition
    proceedings against the appellant. Not remitting the matter to the extradition
    judge is more in keeping with judicial economy and an expeditious extradition
    process.

[41]

As
    stated s. 53(b)(ii) of the
Extradition Act
allows this court to
    dismiss an appeal of a committal order if it is of the opinion that no
    substantial wrong or miscarriage of justice has occurred and the order of
    committal should be upheld.

[42]

Despite
    the extradition judges failure to consider whether continuing with the
    proceeding would amount to an abuse of process in the face of his allegations,
    the record on the judicial review of the Ministers decision enables this court
    to conclude that the appellants allegations of torture are not borne out.
    Therefore, I conclude that there has been no miscarriage of justice.

[43]

In
    his submissions to the Minister, the appellant renewed his request for a stay
    on the basis of his alleged mistreatment by the Czech police. Before the
    Minister, he filed the same affidavit that he had filed before the extradition
    judge. Thus, the issue of whether the appellants confession was obtained by
    torture, and whether that amounts to an abuse of process justifying a stay of
    the extradition, was before the Minister and is now before this court on the
    application for judicial review.

[44]

The
    Minister sought a response from the requesting state about the appellants
    allegations. The Czech Republic responded that the appellants confession was
    not obtained by torture, that there were three separate confessions given on
    three specific dates that on each of those occasions he had the benefit of
    counsel, that the appellant and his counsel both signed the confession given on
    November 29, 1996 that had been referenced in the record of the case, and that
    the appellants signature on the interview records did not appear at the bottom
    of the sheet, but precisely where the text of the record ends.

[45]

The
    Minister provided the appellant with the opportunity to respond to the
    information provided by the Czech Republic. The appellant did not provide any
    additional evidence in support of his allegations, nor
demonstrate
    that the evidence relied on by the
Czech Republic
was manifestly unreliable
. In this court, he did not seek to tender any
    fresh evidence, and does not suggest that he would have any additional evidence
    to file were the matter remitted. Instead, he demands production of the
    original documents referred to in the Czech Republics response so he can
    attempt to undermine it. In doing so, he misconceives the nature of the
    extradition process, which allows Canadas extradition partners to provide
    certified summaries of evidence.

[46]

The
    Minister concluded that a stay was not warranted. His conclusion is the only
    reasonable one in light of all the evidence. The record before this court on
    the judicial review shows that the appellant has failed to establish his
    allegations of mistreatment by the Czech police.

[47]

As
    the appellant has failed to establish his allegations of mistreatment, no
    useful purpose would be achieved by remitting this matter to the extradition
    judge. The only result of remitting the matter would be the consumption of
    court resources and further delay in the extradition process. No miscarriage of
    justice has occurred. I would apply s. 53(b)(ii) of the
Extradition Act
and
    dismiss the appeal against the committal order.

Applying the Current Law to the Record before the Extradition Judge

[48]

The law is continuously evolving. A practice of unnecessarily
    rehearing cases because the law has changed after they were decided does not
    properly value judicial resources. An appellate court should first consider
    whether it is able to apply the new law to the record that was before the court
    of first instance. This court has used such an approach in the extradition
    context in appeals heard after the Supreme Courts decision in
United
    States of America v. Ferras
, 2006 SCC 33,
[
2006] 2 S.C.R. 77, which
changed the law by expanding the
    scope of the courts
assessment of the evidence
(see
    for example
United States of America v. Anderson
,
2007
    ONCA 84, 85 O.R. (3d) 380).

[49]

Having
    the appellate court apply the new law is particularly suitable in extradition
    cases. As the Supreme Court has often emphasized, extradition proceedings are
    intended to be expeditious.
In
United
    States of America v. Dynar
, [1997] 2 S.C.R.
    462, Cory and Iacobucci J.J. stated, at para. 122, that while an extradition
    judge has an important role to fulfill, i
t cannot be forgotten that the
    hearing is intended to be an expedited process, designed to keep expenses to a
    minimum and ensure prompt compliance with Canadas international obligations.
Cory and Iacobucci J.J. repeated the observation of
La Forest J. in
McVey (Re); McVey v. United States of America
, [1992]
    3 S.C.R. 475, at p. 551, that extradition proceedings are not trials. They are
    intended to be expeditious procedures to determine whether a trial should be
    held.

[50]

Remitting
    the matter for a new committal hearing with the spectre of an appeal of a
    further committal order, a further surrender decision by the Minister, and a
    further judicial review of the Ministers decision, would result in a measure
    of delay entirely inconsistent with the expeditious process envisaged by the
Extradition
    Act.

[51]

Therefore,
    I will apply the current law as set out in the
Khadr
decision to the
    record that was before the extradition judge at the committal hearing.

[52]

The
    appellants allegations stood uncontradicted before the extradition judge. I
    appreciate the argument of counsel for the Attorney General that a court must
    be circumspect in accepting bald and uncorroborated allegations of torture made
    by the person sought. As he points out, the extradition partners certification
    of the record of the case implies a denial of the allegations as it indicates
    the evidence was gathered according to law and is available for trial.
    Gathering evidence by torture is against the law of the Czech Republic. I find
    it unnecessary to deal with this argument. Instead, for the sake of argument, I
    will treat the appellants allegations as established. Taking his allegations
    as established and applying the law in light of
Khadr
, I conclude that
    this is not one of those clearest of cases where a stay is warranted.

[53]

This
    is a case in which local police investigating local crimes physically
    brutalized the appellant to extract a confession. All police brutality is
    unacceptable and should not be tolerated. The fact that the accused was
    subjected to police brutality, however, does not mean that a stay of the
    extradition proceedings is warranted. Unfortunately, allegations of police
    brutality similar to the appellants are made in Canada all too often.
    Generally in Canada, however, such police conduct does not result in a stay of
    proceedings. Generally, some other remedy, such as the exclusion of evidence,
    is deemed adequate and the criminal prosecution is allowed to proceed on other
    evidence. A stay may be imposed in an exceptional case involving conduct that
    is so egregious that proceeding would undermine the integrity of the court.

[54]

R.
    v. Tran
, 2010 ONCA 471, 103 O.R. (3d) 131 is one of the few Canadian cases
    where a stay was imposed in a case involving police brutality. It illustrates
    the exceptional nature of the circumstances that would support a stay. Epstein
    J.A., writing for the court, began her analysis by recognizing, at para. 90,
    that [f]ew cases appear in Canadian jurisprudence where a stay has been
    imposed as a remedy specifically for police brutality. A stay of proceedings
    is an exceptional remedy to be employed as a last resort, only after canvassing
    other available remedies. Generally, the misconduct of police brutality is not
    carried forward into the trial. As the judge can guard against its having an
    effect on the trial the integrity of the court is not implicated.

[55]

This
    courts decision in
Tran,
as I read it, did not change the generally
    restrictive approach to granting stays, but turned on its exceptional
    circumstances. Tran had surrendered himself to the police and received a severe
    and entirely gratuitous beating that resulted in permanent injury. Tran claimed
    he was beaten for invoking his
Charter
right to remain silent. He was
    denied prompt medical attention. The police involved attempted to cover-up
    their actions by destroying evidence, lying to fellow officers and perjuring
    themselves before the court.

[56]

Epstein
    J.A. stressed that the misconduct was carried forward to the accuseds trial.
    After the trial judge found in the
voir dire
that Tran had been
    severely beaten by the police, the Crown had one of the officers involved sit
    at the Crowns counsel table. Then, after the trial judge made an order
    excluding the officer from the counsel table, the Crown allowed him to have
    continuing involvement with witnesses. As a consequence, Epstein J.A. stated,
    at para. 97, that the state misconduct continued into the trial and implicated
    trial fairness. The Crown had exhibited a cavalier attitude toward the
    seriousness of the police misconduct and abuse to which Tran had been
    subjected (at para. 98). She concluded, at para. 99, that [t]he Crowns
    conduct was evocative of an alignment with the police, notwithstanding the
    abuse.

[57]

The
    case before us does not have any features similar to the exceptional
    circumstances of
Tran
. I am satisfied that the appellants
    allegations, even if regarded as true, would not result in a stay of
    proceedings in Canada. In Canada, the confession would be excluded, and the
    prosecution would proceed on other evidence. This is beside the point, however.
    The important point is that it is the function of the trial judge to find
    whether the confession was provided voluntarily and to fashion the appropriate
    remedy if it was not. In this case the trial court in the Czech Republic has
    that function.

[58]

In
    carrying out that function, it must be assumed that the trial court in the
    Czech Republic will fairly and appropriately deal with the appellants
    allegations. Canada chooses its extradition partners with deliberation. As
    McLachlin J. observed in
Kindler v. Canada (Minister of Justice)
,
    [1991] 2 S.C.R. 779, at p. 845, We sign treaties only with states which can
    assure us that their systems of criminal justice are fair and offer sufficient
    procedural protections to accused persons. In
Canada v. Schmidt
,
    [1987] 1 S.C.R. 500, La Forest J. said:

[T[he courts must begin with the notion that the executive must
    first have determined that the general system for the administration of justice
    in the foreign country sufficiently corresponds to our concepts of justice to
    warrant entering into the treaty in the first place, and must have recognized
    that it too has a duty to ensure that its actions comply with constitutional
    standards (at p. 523).

[59]

La
    Forest J. added that while blind deference to executive judgment cannot be
    expected, this is an area where the executive is likely to be far better
    informed than the courts, and where the courts must be extremely circumspect so
    as to avoid interfering unduly in decisions that involve the good faith and
    honour of this country in its relations with other states (at p. 523).

[60]

Whats
    more, as the Czech Republic is a member of the European Union, the appellant is
    afforded all of the protections of the
Convention for the Protection of
    Human Rights and Fundamental Freedoms
, 4 November 1950, 213 U.N.T.S. 221
    at 223, Eur T.S. 5 (European Convention on Human Rights). These protections
    include the right to liberty and security, the right to a fair trial, the right
    to life, and a prohibition against torture. The appellant is able to raise his
    allegations of mistreatment before the Czech courts and can resort to the
    European Court of Human Rights, the decisions of which are binding on the Czech
    Republic.

[61]

I
    do not agree with my colleague that the allegations in this case could support
    the application of the principles stated in
Khadr
. On my reading, when
    one takes full measure of the circumstances in that case, the physical
    mistreatment of Khadr played a minor role. The extradition judge in
United
    States of America v. Khadr
, 2010 ONSC 4338, 322 D.L.R. (4th) 483 (S.C.)
    found, at para. 101, I am not satisfied, on a balance of probabilities, that
    the mistreatment of Khadr reached the level of severity alleged. I do not find
    evidence amounting to torture. In this court, Sharpe J.A. described Khadrs
    physical mistreatment this way:

The extradition judge did not accept Khadrs evidence that he
    had been subjected to prolonged torture while in [Pakistans intelligence
    agencys] custody. However, the extradition judge did find that Khadr was
    mistreated and physically abused during the first three days of his detention,
    and that he was thereafter held in a hostile environment (at para. 8).

[62]

Khadr
    was physically mistreated and that physical mistreatment, however one describes
    it, may have coerced him into cooperating with Pakistani and American
    intelligence officers. The stay imposed, though, did not rest solely on that
    fact.

[63]

Khadr
    was a Canadian citizen. He was abducted by the national intelligence service of
    Pakistan (ISI) upon being paid a bounty of $500,000 by the United States. He
    was held in secret detention for 14 months. Pakistan and the United States
    breached their international obligations by collaborating to deny the Canadian
    consul access to Khadr for three months. The purpose of the denial was to
    ensure Canadian Consul access did not interfere with the American intelligence
    interrogations. Khadr was physically mistreated during the first three days of
    his confinement. Khadr was held without charge and was never brought before the
    courts. His detention was both arbitrary and illegal according to the laws of
    Pakistan. Throughout his ordeal, he was denied legal counsel. When Pakistan was
    ready to allow his return to Canada, the United States pressured Pakistan into
    detaining him for another six months. The extradition judge found that the
    United States caused the delay because it was dissatisfied with the RCMPs
    refusal to charge him with criminal offenses before his release. The
    extradition judge added that [t]his delay was contrary to Canadian officials
    expectations and wishes that Khadr be repatriated. It was a source of
    frustration: Canadian officials had fully expected Khadr to be released and had
    made preparations for his return to Canada (at para. 124).

[64]

To
    sum up, the extradition judge found, at para. 111, that the United States was
    the driving force behind Khadrs abduction and fourteen month detention in
    Pakistan, the denial of consular access by Canada, and the prolonging of his
    illegal detention for six months after Pakistan was prepared to allow his
    return to Canada. The United States then sought to benefit from its misconduct
    by seeking Khadrs extradition on the basis of evidence derived through its
    misconduct.

[65]

The
    case before us is a world apart. The police mistreatment of which the appellant
    complains took place several years before he entered Canada, when he had no
    connection with Canada and when Canada bore no responsibility to ensure his
    fair treatment. I do not suggest that the appellants lack of Canadian
    citizenship disqualifies him from bringing an abuse of process application. Clearly,
    an extradition judge has authority to grant a stay of proceedings to a
    non-citizen whose treatment by an extradition partner was so egregious that
    extradition would shock the Canadian conscience and be unjustifiable. Needless
    to say, the appellant is protected by the
Charter
in the extradition
    proceedings.

[66]

That
    said, however, Khadrs Canadian citizenship was a lynchpin for the
    circumstances that made his case shocking to the Canadian conscience. Throughout
    Khadrs ordeal, his rights at international law to Canadas protection were
    denied. The extradition judge analysed the actions of Pakistan and the United
    States in the context of the
Vienna Convention on Consular Relations,
24 April 1963, 596 U.N.T.S 261 (entered into force 19 March 1967). He observed
    that under the Vienna Convention, a contracting state has a duty to inform a
    detainee of his right to contact consular officials and to facilitate that
    right without delay and described this as a fundamental right
.
He found, at para. 121, that Canada did its best to obtain consular
    access and pressed hard for consular access. The three month delay in
    permitting Khadr consular access, prompted by the Pakistani and American
    collaborative decision to refuse consular access until full intelligence
    debriefings were completed, was an important factor in concluding a stay was
    warranted (at para. 113).

[67]

Another
    important factor was the delay in allowing a Canadian national to return to
    Canada. The extradition judge stressed that [t]he United States, contrary to
    Canadas wishes, pressured the ISI to delay Khadrs repatriation because of its
    dissatisfaction with Khadr being released without charge, even though there was
    no admissible evidence upon which to base charges at that time (at para. 150).

[68]

As
    can be seen, a significant part of the circumstances in
Khadr
involved
    the denial of rights he had as a Canadian citizen. Extraditing Khadr on the
    basis of information obtained while he was illegally detained without consular
    access would have condoned the requesting states disregard of not only Khadrs
    rights, but Canadas rights at international law. These elements are entirely
    lacking in the case of Mr. Zajicek. His case provides no basis to deviate from
    the comity that Canadas extradition partners are due.

[69]

One
    final distinction. In upholding the stay in
Khadr,
Sharpe J.A.
    repeatedly observed that a stay would not necessarily mean that Khadr would
    walk free, as Canada could prosecute him for crimes of terrorism committed
    outside Canada. A stay in this case would necessarily result in the appellant
    not being prosecuted for the robberies he is alleged to have committed.

[70]

In
    my view, extraditing the appellant, notwithstanding the conduct of the police
    in the Czech Republic, could not be unjustifiable because the same conduct by
    Canadian police would not result in a stay but in the exclusion of his
    confession at trial. The Canadian conscience would indeed require that the
    appellant be provided with the appropriate remedy for his alleged mistreatment.
    Providing an appropriate remedy is  the function of the trial court in the
    Czech Republic. Comity with Canadas extradition partners requires that a
    Canadian extradition court be satisfied it would do so fairly in accordance
    with the fundamental justice.

[71]

In
    closing, I conclude that a stay of proceedings is not warranted in this case,
    even taking the appellants allegations to be established. This conclusion
    disposes of the appeal.

The Ministers Surrender Decision

[72]

The
    foregoing conclusion also disposes of the judicial review of the Ministers
    surrender decision. In my discussion of s. 53(b)(ii) of the
Extradition Act
,
    I concluded that the Ministers decision to surrender the appellant was
    reasonable on all of the information before him.

[73]

The
    other issues the appellant raises can be dealt with summarily. The appellants
    argument that the information provided by the Czech Republic should be regarded
    as unreliable has no basis. The appellant has no right to the actual evidence
    summarized in the case. As I have already mentioned, Canadas extradition
    partners do not have to provide original documents and evidence to support a
    request for extradition. The Minister acted reasonably in relying on the
    presumptive reliability and availability of the evidence summarized and described
    in Czech Republics correspondence.

[74]

Finally,
    the Ministers conclusion that any delay in requesting the appellants
    extradition does not amount to an abuse of process is reasonable. The appellant
    does not suggest that the delay has an impact on the fairness of the
    extradition process. The delays impact on the criminal trial is a matter the
    appellant can raise before the Czech Republics court or the European Court of
    Human Rights.

Conclusion

[75]

This
    Courts decision in
Khadr
has little import for cases such as this.
    After
Khadr
an extradition judge cannot refuse to entertain an
    application by the person sought for a stay for reasons that do not impact on
    the fairness of the extradition process itself. However, because of the exceptional
    circumstances required by
Khadr
, such applications should be brought
    only in extraordinary cases. Applications brought in cases similar to this one
    should be disposed by the extradition judge in a summary fashion to avoid
    needless delay in the extradition process.

[76]

For
    the reasons above, I would dismiss both the appeal against the committal order
    and the judicial review of the Ministers surrender decision.

Released: February 14, 2012 (J.C.M.)

R.G. Juriansz J.A.

[1]
I will use the word appellant throughout these reasons to describe Mr.
    Zajicek, although he is both an appellant, in relation to the committal order,
    and an applicant, in relation to the surrender decision.


COURT OF APPEAL FOR ONTARIO

CITATION:
Diament Estate v. Ockrant, 2012 ONCA 84

DATE: 20120206

DOCKET: C53675

Doherty, Simmons and Epstein JJ.A.

IN THE MATTER OF THE ESTATES OF CHARLES DIAMENT also known as
    CHIL MORDECHAI DIAMENT, DECEASED and ANN DIAMENT, DECEASED

BETWEEN

Sandra Deborah Prezes, in her capacity as the
    estates trustee for the estates of Charles Diament also known as Chil Mordechai
    Diament, Deceased and Ann Diament, Deceased

Applicant (Respondent)

and

Raymond David Ockrant

Defendant (Appellant)

Raymond David Ockrant, appearing in person

Liliana Ferreira, for the applicant (respondent), Prezes

Heard:  February 6, 2012

On appeal from the judgment of Justice Whitaker of the Superior
    Court of Justice, dated April 6, 2011.

APPEAL BOOK ENDORSEMENT

[1]

This was clearly a case for summary judgment on liability.  The
    appellant clearly breached his fiduciary duty to his grandparents.

[2]

The quantification of the breach was more difficult due in large
    part to the appellants failure to keep the appropriate records.

[3]

The motion judge was entitled to rely on the admissions made by
    the appellant at earlier stages of the proceedings.  The appellant has not
    convinced us that any of the motion judges calculations are in error.

[4]

The appeal is dismissed.  Costs to the respondent fixed in the
    amount of $2,000, inclusive of all prior appearances, disbursements and
    applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION:
Estates Associates Inc. v. 1645112 Ontario
    Ltd., 2012 ONCA 75

DATE: 20120206

DOCKET: C54242

Laskin, Sharpe and Juriansz JJ.A.

BETWEEN

Estates Associates Inc.
and Musharaff
    Iqbal

Appellant

and

1645112
    Ontario Ltd.; 1793411 Ontario Ltd.; Mr. Ronald McCowan
; Mr.
    Bryon C. Cohen; Remax (All Stars Realty Inc. Brokerage);  Reine Schickedanz

Respondents

Tolulope Adewumi, for the appellant

Jeffrey W. Kramer and S. Kuruganty, for the respondents 1645112
    Ontario Ltd.; 1793411 Ontario Ltd.; and Mr. Ronald McCowan

Heard: January 13, 2012

On appeal from the judgment of Justice Kevin Whitaker of
    the Superior Court of Justice, dated July 26, 2011.

Juriansz
    J.A.:

[1]

This is an appeal from the order of Whitaker J. granting summary
    judgment to the defendants 1645112 Ontario Ltd. (164), 1793411 Ontario Ltd.
    (179) and Ronald McCowan, three of the six defendants in an action arising
    out of a real estate transaction.

[2]

The appellant, Estates Associates Inc.
(Estates),
    was the vendor of the real estate. Musharraf Iqbal is the owner of the
    appellant. 164 was the purchaser, and on closing, 179. provided two mortgages
    to Estates as partial payment for the real estate. McCowan owns both 164 and
    179. Estates sued 164, 179 and McCowan, as well as its real estate agency, real
    estate agent and solicitor. Only 164, 179 and McCowan moved for summary
    judgment. Their motion was successful. Estates appeals the decision of the
    motion judge. For the reasons below, I would grant the appeal.

A.

Facts

[3]

On January 15, 2009, Estates entered into an agreement to sell
    certain property to 164 for $1.4 million. The parties agreed that the purchase
    price would be paid, in part, by the assignment of two mortgages in the amount
    of $350,000 and $300,000 respectively on two properties owned by 179. At the
    time, those two properties were under agreements of purchase and sale between
179 as vendor and Daniel Barnabic as purchaser for $450,000
    and $350,000 respectively.
[1]

[4]

Estate did not have 179s two properties appraised before accepting
    the assignment of the two mortgages as part of the purchase price.
    Subsequently, it turned out that the values of the two properties were well
    below the face values of the two mortgages. In the action, Estates alleges that
    the respondents fraudulently misrepresented the values of the two mortgaged
    properties thus, inducing Estates to accept the mortgages as part payment in
    the real estate transaction.

Decision of the motion judge

[5]

The motion judge applied a four part test for fraudulent
    misrepresentation. I paraphrase the test he set out:

(i) the defendant made a false statement through words or
    conduct;

(ii) the defendant knew the statement was false or was reckless
    as to its truth;

(iii) the defendant made the representation with the intention
    that it would be acted upon by the plaintiff;

(iv) the plaintiff relied upon the statement; and suffered
    damage as a result.

[6]

The motion judge concluded, Having reviewed the detailed record
    which includes the discovery of Iqbal and the examination of [Estates solicitor],
    I cannot find (nor can Estates point to) any false representation made by
    [McCowan, 164 or 179] to Estates during the course of the transaction (at
    para. 27).

[7]

The motion judge observed that Iqbal was warned repeatedly by his
    solicitor to act with more prudence and diligence, to obtain appraisals and to
    visit the properties, and take other steps to be assured of the true value of
    the mortgages. The motion judge went on to find, without discussion, that none
    of the four elements of fraudulent misrepresentation was made out and granted
    summary judgment to McCowan and his two companies.

Analysis

[8]

While the appellant may have failed to identify the relevant
    evidence before the motion judge, the record does contain evidence that McCowan
    made representations to Iqbal as to the value of the mortgaged properties. In
    addition, there is evidence in the record that could support a finding that
    McCowans conduct constitutes a representation as to the value of the mortgaged
    properties. The test applied by the motion judge recognizes that false
    representations can be by conduct.

[9]

The theory of the plaintiffs case, succinctly set out in paras.
    30 and 31 of the statement of claim, is that McCowan made available to Estates
    the agreements of purchase and sale between 179 and Barnabic for the two
    mortgaged properties to convince Iqbal that the two properties were more
    valuable than they turned out to be. The plaintiff pleads that these
    agreements are phony and fraudulent and it was intended to deceive the
    Plaintiff into agreeing to close the transactions if he has doubts regarding
    the value of the properties.

[10]

There is evidence in the record that McCowan arranged and
    attended the meeting between Iqbal and Barnabic; that at that meeting, Barnabic
    told Iqbal what he was agreeing to pay for the properties; that McCowan claimed
    he had renovated the properties and described to Iqbal in detail the
    renovations he claimed to have made; that those renovations, for example
    putting in a new kitchen and flooring, were not in fact made; that McCowan told
    Iqbal that the properties had very good potential and that there is big
    chances for this and that this property will be a million dollar, that he had
    sold the property for the amount and over the mortgage price, and that he had
    given the value of maybe $500,000 for [one of the properties] and $300,000
    [for the other property]; that subsequent appraisals suggest that these
    figures are well above the properties market value; that Barnabic and McCowan
    had known each other for many years; that the transactions between Barnabic and
    McCowan did not close before the institution of Iqbals lawsuit; and that
    Barnabic and McCowan offered contradictory versions of why the closings were
    delayed.

[11]

In my view, the foregoing evidence makes it a genuine issue for
    trial whether the transactions between McCowan and Barnabic were phony and
    intended to mislead Estates as to the value of the mortgages. A trial judge
    could infer from all the circumstances that McCowan, by words and/or conduct,
    made a representation that he knew was false; namely, that the mortgaged
    properties were of the values indicated in the agreements of purchase and sale
    with Barnabic.

[12]

The other factors considered by the motion judge, i.e. that Iqbal
    did not heed the advice of his solicitor, and that Iqbal was not concerned
    about the value of the mortgaged properties, did not provide the motion judge
    with a basis to conclude that it was appropriate to grant summary judgment.

[13]

First, whether Iqbals solicitor gave him wise advice cautioning
    him to be more careful in assuring himself about the value of the mortgaged
    properties has no logical bearing on whether McCowan made a false
    representation to Iqbal. In fact, Iqbals decision to proceed without following
    his solicitors advice could strengthen the inference that he relied on the
    representations of McCowan. In any event, Iqbals action against the solicitor
    is proceeding to trial. It will be for the trial judge to decide whether to
    believe the solicitors assertions that he gave such advice to Iqbal or Iqbals
    assertion that he did not.

[14]

Second, in my view, the motion judge made too much of the
    evidence that Iqbal was not concerned with the value of the two mortgaged
    properties. Iqbal was asked, The two properties, was it important to you to
    know
exactly
how much those properties were worth? (emphasis added).
    Iqbal responded that he was interested in the mortgage only. Clearly, Iqbal
    was interested in the value of the two mortgages, and he made clear he expected
    they would provide him with income of $6,000 every month and repayment of the
    principle of $650,000 after two years. It is not possible to divorce the value
    of the mortgages from the value of the underlying real estate.

[15]

The respondents argued on appeal that even if the discrepancies
    between the purchase prices and appraised values of the two mortgaged
    properties considered in all the circumstances supported an inference of a
    false representation of their value, the appellant suffered no damages. The
    respondents point out that the appellant, on receiving the mortgages in the
    transactions, immediately reassigned them. The appellant assigned one mortgage
    to McCowan as security for a $132,000 loan, and assigned the other mortgage to
    the real estate agent as security for commissions.

[16]

I would not give effect to this argument. The appellant suffered
    damage by receiving mortgages of less value than the amount credited to the
    purchaser in the real estate transaction. The quantification of the damage he
    suffered in light of his subsequent dealing is a question for trial.

Conclusion

[17]

I would allow the appeal, set aside the order of the motion judge
    and replace it with an order dismissing the respondents motion for summary
    judgment. The motion judges award of costs in the amount of $40,000 against
    the appellant and Iqbal is replaced by a costs award of $20,000 in the
    appellants favour. The appellants costs of the appeal are fixed in the amount
    of $12,500 including disbursements and applicable taxes.

R.G. Juriansz J.A.

I agree John Laskin
    J.A.

I agree Robert J.
    Sharpe J.A.

Released: February 6, 2012

[1]
These are the facts found by the trial judge, which reflect the content of the
    affidavits, cross-examinations and discoveries of the parties. The agreements
    of sale in the record, however were between a company 1083018 Ontario Ltd. and
    Barnabic in trust for a company to be incorporated. Neither party provided any
    explanation.


COURT OF APPEAL FOR ONTARIO

CITATION: Fernandez v. Unique Auto Collision
    Network Solution Corp.,

2012 ONCA 118

DATE: 20120221

DOCKET: C54015 & C54016

Lang, LaForme JJ.A. and Pattillo J. (
Ad Hoc
)

BETWEEN

Frank Fernandez

Plaintiff (Respondent)

and

Unique Auto Collision Network Solution Corp.

Defendant (Appellant)

Yusuf Barre, acting in person for the appellant

Deborah Corcoran, for the respondent

Heard: February 16, 2012

On appeal from the judgment of Justice Beth A. Allen of
    the Superior Court of Justice, dated July 11, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The judgment of Allen J. of July 11, 2011 must be set aside.  The motion
    judge effectively granted default judgment on a motion that sought only a writ
    of possession.  For that reason alone the appeal must succeed.

[2]

In addition, we note that the earlier default judgment had been set
    aside by Penny J. on February 7, 2011.  It was not subsequently reinstated.

[3]

There are also a number of difficulties with the material that was filed
    in support of the motion before Allen J., including clarity on the defaults at
    issue.  In the result, the material before Allen J. was inadequate to support
    the relief requested.

[4]

The appeal is allowed and the judgment and award of Allen J. is set
    aside as are the writs of possession.  In the circumstances, there will be no order
    as to costs.


COURT OF APPEAL FOR ONTARIO

CITATION:
Force
    10 Capital Management Inc. v. Bulk, 2012 ONCA 100

DATE: 20120214

DOCKET: C54269 & C54274

Lang and LaForme JJ.A. and Pattillo J. (
Ad
    Hoc
)

BETWEEN

Force 10 Capital Management Inc.

Plaintiff (Respondent)

and

Jake Bulk
,
Paul Wemple
, Susan Lehnen, Estate Trustee of Richard
    Lehnen, deceased, Renee Lehnen, Estate Trustee of Richard Lehnen, deceased, Christa
    Lehnen, Estate Trustee of Richard Lehnen, deceased, Miser Lighting Inc., Huron
    Tract Holdings Inc., Huron Tract Holdings Developments Inc., and CFM II
    Technologies Inc.

Defendants (
Appellants
)

Andrew F. Camman, for the appellant, Paul Wemple

Gerald K. Culliton, for the appellant, Jake Bulk

Michael J. Valente, for the respondent

Heard: February 13, 2012

On appeal from the judgment of Justice Barry H. Matheson
    of the Superior Court of Justice, dated August 3, 2011.

APPEAL BOOK ENDORSEMENT

[1]

Counsel advise that they have resolved the matter in terms of the
    settlement, a copy of which they have filed.

[2]

The appeal is dismissed without costs.