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EXTRADITION AND CRIMINAL MUTUAL LEGAL ASSISTANCE

Wednesday, December 11, 2019 @ 8:38 AM  


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Application by Sheck for judicial review of an extradition surrender order. The United States alleged that the applicant, an indigenous person, directed 23 transactions laundering several million dollars in proceeds from drug trafficking between 2007 and 2012. In 2015, the United States requested the extradition of the applicant. In 2016, the Minister issued an Authority to Proceed. In 2017, an extradition judge found that the evidence justified committal for extradition. Prior to the surrender decision, the applicant provided the Minister with information regarding his background and current employment and family situation. The Minister also received a justice memorandum regarding the estimated 19 to 27 years sentence the applicant could receive versus the ten-year maximum in Canada, and the extent to which the applicant's indigenous heritage would be a sentencing consideration in the United States. The Minister's surrender decision noted the applicant's heritage, but concluded that surrender, in light of the applicant's background, would not shock the conscience of the public or otherwise breach s. 7 of the Canadian Charter of Rights and Freedoms (Charter). The applicant appealed.

HELD: Application allowed. The Minister failed to properly consider the applicant's indigenous heritage. There was no evidentiary basis for concluding the applicant's heritage would be a mitigating factor for sentencing in the United States. The Minister failed to consider the likely sentence the applicant would receive in Canada, considering only the maximum available sentence. Although the Minister referred to the systemic Gladue factors, they were not analyzed in the context of the applicant's potential sentence in Canada. Based on the applicant's antecedents and the nature of the offences, he was likely to receive a two to four-year sentence in Canada, reflecting a gross disparity between the likely sentence in the United States. In addition, the Minister failed to consider the impact of the applicant's separation from his children in the context of their common heritage and the personal factors unique to indigenous persons. The cumulative effect of the omissions was material and affected the analysis of whether the surrender order would shock the conscience or be unjust or oppressive. The decision was thus unreasonable and unable to stand. The matter was remitted for reconsideration.

Sheck v. Canada (Minister of Justice), [2019] B.C.J. No. 2013, British Columbia Court of Appeal, M.E. Saunders, S.A. Griffin and G.B. Butler JJ.A., October 25, 2019. Digest No. TLD-December92019007