Saskatchewan Court of Appeal clarifies appeal powers under the Extradition Act
There is comparatively little jurisprudence interpreting the powers of an appellate court hearing an appeal against an order of committal in the extradition context. An order of committal is a judicial order requiring an accused person to be committed into custody to await surrender to an extradition partner (such as the United States). It is not a conviction. An appeal lies from such an order under s. 49 of the Extradition Act, with or without leave depending on the grounds of appeal put forward.
In Rowan v. Canada (Attorney General), 2018 SKCA 104, the Court of Appeal for Saskatchewan interpreted these appeal mechanisms and applied the principles developed under the comparable provisions of the Criminal Code. This aspect of Rowan will provide useful guidance to future courts faced with interpreting their jurisdiction and powers in the context of extradition appeals.
The accused person, the CEO of an energy company, was indicted in the United States on charges equivalent to fraud in Canada. He was physically present in Canada, and the United States exercised its treaty right to request his extradition to face trial in an American court. Following a hearing featuring the evidence of the United States against the accused (the “record of the case”), the Court of Queen’s Bench issued an order committing the accused into custody to await surrender to the United States (the “Committal Order”). The Minister of Justice then ordered the accused to be surrendered into the custody of the United States under s. 40 of the Act (the “Surrender Order”). The accused appealed the Committal Order and applied for judicial review of the Surrender Order.
Appeal mechanism under the Extradition Act
As set out in Sopinka and Gelowitz on the Conduct of an Appeal, Fourth Edition, all appeals are creatures of statute (with limited possible exceptions discussed in Chapter 1, Part A). In the case of committal orders under the Extradition Act, the appeal mechanisms are found in ss. 49 and 53. The accused person has a right of appeal in respect of grounds of appeal that involve questions of law alone (s. 49(a)). Where the ground of appeal involves a question of fact or a question of mixed fact and law, an appeal lies only with leave (s. 49(b)). For other grounds of appeal, leave to appeal is also required, with an additional requirement that the ground “appears to the court of appeal to be a sufficient ground of appeal” (s. 49(c)). The Attorney General (on behalf of the extradition partner) has parallel appeal rights when the person is discharged or a stay of proceedings is granted.
There does not appear to have been an issue in Rowan regarding whether an appeal lay to the Court of Appeal. However, the Court of Appeal was called upon to interpret its powers on appeal. Specifically, s. 53(a)(i) of the Extradition Act provides that a court of appeal may allow an appeal where it is of the opinion “that the order of committal should be set aside on the ground that it is unreasonable or cannot be supported by the evidence”. Prior to Rowan, there was little judicial guidance interpreting this statutory power, including whether it describes one singular standard, or whether “unreasonable” and “cannot be supported by the evidence” are separate and distinct tests.
The Court of Appeal, per Justice Jackson, answered this question with reference to the deep jurisprudence interpreting the comparable provisions of the Criminal Code. Section 686(1)(a)(i) of the Criminal Code does not apply directly because a committal order under the Extradition Act is not a conviction following trial, but the appeal provision uses similar language to the Extradition Act. Specifically, s. 686(1)(a)(i) allows a court of appeal to set aside a verdict “on the ground that it is unreasonable or cannot be supported by the evidence”. The case law under that provision is addressed extensively in Sopinka and Gelowitz on the Conduct of an Appeal, in Chapter 4, Part B.
Justice Jackson referred to the interpretation of s. 686(1)(a)(i) that Justice Fish developed in dissenting reasons in R. v. Sinclair, 2011 SCC 40, and which the majority of the Court adopted in R. v. R.P., 2012 SCC 22. As Justice Fish held in Sinclair, “a verdict may be unreasonable even if supported by the evidence” (emphasis in the original). Justice Jackson accordingly held as follows:
 Because s. 686(1)(a)(i) of the Criminal Code and s. 53(a)(i) of the Extradition Act are worded similarly, it would seem that both provisions should be construed as providing two pathways for review, i.e., that of a verdict unsupported by the evidence and also one being unreasonable, within the meaning of the applicable jurisprudence. The same concerns that preoccupied Fish J. in [R. v. Beaudry], and which were ultimately adopted by the Supreme Court in Sinclair and R.P., arise with respect to s. 53(a)(i) of the Extradition Act. A review of the reasons for committal may reveal a conclusion that is supported by the evidence, but which is, nonetheless, unreasonable. [emphasis added]
This is significant beyond Justice Jackson’s clear articulation of the difference between review for whether the order is supported by the evidence (which is how the accused person in Rowan articulated his appeal), and the review for unreasonableness articulated in Sinclair and R.P. (where defects in the trial judge’s reasoning process may support an allegation of unreasonableness). More broadly, Justice Jackson’s decision confirms that the cases interpreting s. 686(1)(a)(i) of the Criminal Code apply to extradition appeals engaging s. 53(a)(i) of the Extradition Act. Given the depth of the criminal jurisprudence, this guidance will be valuable for future extradition appeals.
Application in Rowan
As noted, the accused in Rowan alleged that the Committal Order was unsupported by the evidence. Justice Jackson reviewed that allegation against the evidence and the elements of fraud under the Criminal Code, and concluded that the extradition judge’s order was reasonable. Applying the principles of judicial review, Justice Jackson also concluded that the Surrender Order was reasonable. As a result, the accused was ordered to surrender himself into RCMP custody. The criminal trial will be heard in the U.S. District Court for the Eastern District of North Carolina.