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| John L. Hill |
An early attempt to have the court stay extradition proceedings by claiming that horrendous prison conditions in the requesting jurisdiction that “shock the conscience” and would be unacceptable suggested there may be hope for success (United States of America v. Dynar [1997] S.C.J. No. 64).
Yet the year after United States of America v. Shulman [1998] O.J. No. 3340, the complaint of egregious conduct by the requesting state’s prosecutor or intolerable prison conditions was rejected on the conclusion that it was the minister of justice who must determine such issues in giving the green light to extradition.
In United States of America v. Cobb, [1999] O.J. No. 3278 the lower court’s stay of extradition was quashed even though the American prosecutor had boasted that the accused would face homosexual rape once imprisoned in the United States. The Cobb appeal decision drastically narrowed the road to using the Charter in extradition cases. The court held, “The first principle is that the role of the extradition judge is a narrow one, confined to that specified in the statute. The second is that the court should not pre-empt the discretion residing in the Minister of Justice to surrender the fugitive in the discharge of our obligations under the treaty.”
Similarly in Gwynne v. Canada (Minister of Justice), [1998] B.C.J. No. 222, the British Columbia Court of Appeal refused relief where Michael Lucian Gwynne’s affidavit pointed out the extreme and horrible conditions he faced in his 120-year Alabama prison sentence. Charter challenges to a minister’s decision to allow extradition must await a ministerial decision. Once that decision is made, the transfer would likely have been made — too late for judicial intervention.
Given this background and the lack of success challengers have experienced, it is surprising to see yet another extradition case being challenged in the courts. The Kingdom of Thailand asked for Canada to deliver up Mzwakhe Memela, a Nigerian national, who went by the name Prince Michael Obi. Obi had been identified as entering a hotel room in Bangkok and murdering its occupant supposedly for her jewelry on March 24, 2019. Obi arrived in Canada shortly afterward.
Thailand wanted his return to stand trial. However, Thailand maintains a death penalty for murderers. On Oct. 16, 2020, Canada’s minister of justice ordered Obi’s surrender to Thailand but conditional upon Thailand providing assurances that Obi would not be executed should he be found guilty of the crime. Thailand made such promises but never to the satisfaction of the minister. Obi remained in Canadian lockup. He made application to be discharged out of custody after a third unsatisfactory assurance was received from the Thai government.
An earlier request in 2021 had been dismissed by an extradition judge on the basis that the minister had established “sufficient cause” for exceeding the usual time limits in the Extradition Act for surrendering a person committed for extradition (Thailand v. Obi 2021 BCSC 1199). The application after the third unsatisfactory assurance was denied for the same reasons by the same extradition judge (Thailand v. Obi [2022] B.C.J. No. 1226). On this last refusal, Obi went to the British Columbia Court of Appeal (Thailand v. Obi 2023 BCCA 154).
The issue at stake was whether the delays involved by Thailand’s failure to provide satisfactory assurance that the death penalty would not be exacted could be sufficient to authorize a court to grant a discharge. This time it was not a Charter value (analogous to the right to a speedy trial) being argued; it was whether there was provision in s. 69 of the Act that would permit a superior court judge who has the power to grant a writ of habeas corpus to order a discharge when a surrender of an accused has not occurred within 90 days after that person’s committal as required by the Act’s s. 40. However, the procedure set out in section 69 is not to be allowed when “sufficient cause is shown.”
The Appeal Court held that the extradition judge was right in both previous attempts at securing a discharge because sufficient cause was shown that the minister was required to await iron-clad assurances that Thailand had not provided. Whether 90 days or four years, there was no delay attributable to the minister. The Appeal Court held that this challenge fails since the requirements of both s. 40 and s. 69 are being met.
Attempts to challenge the minister’s discretion are reminiscent of the Greek myth where Sisyphus is condemned to roll a rock up to the top of a mountain only to have the rock roll back to the bottom every time he tried. It may seem futile but lawyers, like Sisyphus, will keep on trying.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.
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