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For the Defence_34-3_Layout 1 13-08-16 10:41 AM Page 26 UNITED STATES OF AMERICA V. LEONARD: WHY GLADUE PRINCIPLES MATTER IN EXTRADITION Canada is not a realistic option.” The Court went on to list the considerations, now known as the “Cotroni factors,” that will generally be considered in determining whether to prosecute in this country or to allow authorities in a foreign jurisdiction to seek extradition. 8 The Reasons of the Minister Individuals who have been committed for extradition may make submissions against surrender to the Minister and the Minister must consider them before making his decision. If the Minister decides to order surrender, he is required to give reasons for that decision. 9 ... treating Aboriginal defendants exactly the same as non-Aboriginal defendants only serves to perpetuate “the historical patterns of discrimination and neglect that have produced the crisis of criminality and overrepresentation of Aboriginals in our prisons.” In their respective submissions to the Minister, both Mr. Leonard and Mr. Gionet argued that their extradition to the United States would violate their s. 6(1) and s. 7 Charter rights. More specifically, Mr. Leonard and Mr. Gionet each argued that s. 6 of the Charter — informed by s. 35 of the Constitution Act, 1982, the principles articulated by our courts in Gladue and its progeny, and the fiduciary nature of the relationship between the government and Aboriginal Canadians — necessitates a modification of the traditional surrender analysis described by the Supreme Court in Cotroni in the context of extradition proceedings involving Aboriginal accused. The Minister rejected the submission that Aboriginal people have an enhanced s. 6(1) Charter right to remain in Canada by virtue of s. 35(1) of the Constitution Act, 1982 and Aboriginal peoples’ historical ties to their land. The Minister concluded that the right to remain in Canada attaches to citizenship and applies to all Canadian citizens equally. The Minister also rejected the argument that Mr. Gionet’s and Mr. Leonard’s personal circumstances, aboriginal status and the principles articulated in Gladue should be considered in assessing whether extradition to the United States was justified under s. 1 of the Charter as a reasonable limit on their s. 6(1) Charter right to remain in Canada. The Minister accepted that Gladuetype principles are relevant in determining whether extradition would “shock the conscience” and therefore violate s. 7 of the Charter, but went on to find, in Mr. Leonard’s case, that: ...it would be unfair if Mr. Leonard could escape a trial on the offence alleged against him on the basis that he is an Aboriginal defendant or on the basis of his daughters’ needs when accused persons in Canada must generally face prosecution regardless of their heritage, or the fact that surrender would have a negative effect on their family. Similarly, in relation to Mr. Gionet, the Minister concluded: ...that it would be unfair if Mr. Gionet could escape a trial on the serious offences alleged against him on the basis that he is an Aboriginal defendant or on the basis of his family’s needs when accused persons in Canada must generally face prosecution regardless of their heritage, or the fact that surrender would have a negative effect on their family. The Decision of the Court of Appeal The Court of Appeal allowed the applications for judicial review. The Court upheld the Minister’s finding that Aboriginal people do not have an enhanced s. 6(1) Charter right but found that the Minister erred in respect of his analysis of s. 7 and s. 6(1) of the Charter. Justice Sharpe and Justice MacPherson set aside the surrender orders and declined to remit the matters back to the Minister for reconsideration. Justice Doherty, dissenting on the issue of remedy only, would have sent the matters back. Section 7 The Court of Appeal held that the Minister’s reasons revealed “two significant errors of law” in respect of the application of the Gladue factors to the s. 7 analysis. i) Substantive Equality Requires Treating Aboriginal Defendants Differently First, Justice Sharpe, found that while the Minister acknowledged that Gladue principles are relevant to the s. 7 analysis, his reasons reveal that he, in fact, refused to accept and apply the principle that Aboriginal defendants must be accorded special consideration “in order to ensure that entrenched patterns of discrimination are not maintained and repeated.” 10 Instead, the Minister’s reasoning rested on a formal idea of equality. The Minister concluded that taking into account the disadvantages suffered by Mr. Gionet and Mr. Leonard because of their backgrounds and systemic factors related to their aboriginal status would be “unfair” to other persons sought for extradition. As Justice Sharpe explained, such an approach was rejected by the Supreme Court in Gladue 11 and more recently in Ipeelee. 12 These cases emphasize that treating Aboriginal defendants exactly the same as non-Aboriginal defendants only serves to perpetuate “the historical patterns of discrimination and neglect that have produced the crisis of criminality and over-representation of Aboriginals in our prisons.” 13 Rather 26 FOR THE DEFENCE • VOL. 34 • NO. 3
For the Defence_34-3_Layout 1 13-08-16 10:41 AM Page 27 UNITED STATES OF AMERICA V. LEONARD: WHY GLADUE PRINCIPLES MATTER IN EXTRADITION than amounting to discrimination in their favour, the application of Gladue principles is meant to avoid the discrimination that results from a failure to consider the special and unique circumstances of Aboriginal defendants. ii) A False Dichotomy Second, the Minister improperly framed his decision as being a choice between surrendering Mr. Leonard and Mr. Gionet to the United States or allowing them to “escape” prosecution altogether. The Court of Appeal held that in creating this “false dichotomy,” the Minster erred in law. The Minister’s “either or” reasoning ignored the fact that a prosecution could occur in Canada. While no charges had currently been laid, if surrender were refused, ... the Minister improperly framed his decision as being a choice between surrendering Mr. Leonard and Mr. Gionet to the United States or allowing them to “escape” prosecution altogether. the Public Prosecution Service of Canada (“PPSC”) could reconsider and decide to prosecute in Canada. 14 Section 6 The Court of Appeal found that the Minister also made two errors with respect to his analysis of the applicants’ s. 6(1) Charter right to remain in Canada. i) Circular Reasoning In his reasons responding to the submissions of Mr. Leonard and Mr. Gionet, the Minister stated that he had considered the relevant factors identified in Cotroni and made an independent assessment that prosecution in Canada would not be as effective as in the United States. Nevertheless, the Court of Appeal held that his reasons revealed that the Minister’s conclusion ultimately rested on the decision of the PPSC not to lay charges in Canada. Sharpe J.A. held that the Minister erred by effectively treating the initial charging decision of the prosecutors as determinative. 15 In the response to Mr. Leonard, the Minister stated: [N]o charges have been laid in Canada. Although you submit that prosecuting Mr. Leonard in Canada would be effective and in the public interest, no trial is possible in the absence of charges. The same reasoning was relied on by the Minister in Mr. Gionet’s case: ...I note that the United States has laid charges and is ready to proceed to trial. By contrast, no charges have been laid in Canada. Although you submit that prosecuting Mr. Gionet in Canada would be equally effective, no trial is possible in the absence of charges. This reasoning ignores the possibility that the PPSC could decide to prosecute in Canada in the event that Mr. Leonard and Mr. Gionet were not surrendered. The Court of Appeal held that by positing the choice in these cases as between “surrender and allowing accused drug traffickers to walk free, the Minister has misstated and distorted the true consequences of surrender.” 16 The Minister did not review the PPSC’s Cotroni assessment and refused to provide a copy to counsel for Mr. Leonard, asserting that he had no authority to review or modify the PPSC’s decision. Assuming that assertion was correct, Justice Sharpe held that, in the circumstances, the Minister had engaged in a “form of unacceptably circular reasoning,” which “insulates the Cotroni analysis from judicial review,” by resting his surrender decision on the fact that the PPSC had not brought charges in Canada — a determination that he did not review. 17 Gladue Principles are Relevant to the Cotroni Analysis The Court of Appeal also rejected the Minister’s finding that Gladue principles have no bearing on prosecutorial discretion and held that Gladue must be considered in relation to the s. 6(1) analysis. The factors listed in Cotroni include the severity of the sentence the accused is likely to receive in each jurisdiction. Justice Sharpe held that “[a]ny reasonable evaluation of the severity of the likely sentence in each jurisdiction must take into account the possible effect of Gladue.” The Court of Appeal also accepted that Gladue principles must have a bearing on the exercise of prosecutorial discretion. Justice Sharpe observed that the case law indicates that Gladue factors should be considered by all “decision-makers who have the power to influence the treatment of Aboriginal offenders in the justice system.” 18 Accordingly, he held: Given the central importance of prosecutorial discretion to the administration of Canadian justice and to the extradition process . . . the proper exercise of prosecutorial discretion in this context requires an assessment of the likely result if the case were prosecuted domestically and a comparison of that result to the likely outcome in the foreign state if the individual sought were surrendered, which requires reference to the Gladue principles. 19 Justice Sharpe concluded the Minister erred in law to the extent he “condoned the propriety of prosecutors exercising their discretion whether to lay charges in Canada or allow the prosecution to proceed elsewhere without regard” to those principles. 20 Remedy The remedy in this case — setting aside the surrender order and declin- FOR THE DEFENCE • VOL. 34 • NO. 3 27
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