Canada v. Fischbacher: “Justice” Exceeding Its Boundaries?

With a ruling soon to come regarding Roman Polanski’s legal woes in Switzerland, the topic of extradition has once again grabbed the public’s attention. Closer to home, the Canadian Supreme Court recently released its judgement in Canada (Justice) v. Fischbacher, 2009 SCC 46, regarding the correct process in surrendering an individual charged with a foreign offence. Several concerns are prevalent in the case, including honouring the principles of comity and determining the extent of discretion afforded to the Minister of Justice. In departing from the unanimous approach of the appellate courts, the Court has created what may become a dangerous precedent. While there may be inherent difficulties in the “misalignment” test, the policy rationale underpinning the test is still alive and kicking.


Henry Fischbacher was indicted of a charge of first degree murder by a grand jury in Tucson, Arizona. The evidence in the record alleges that Mr. Fischbacher telephoned his sister, and disclosed that he and his wife had an argument. During the argument he punched his wife in the face and hit her on the back of the head, knocking her unconscious. He then dragged her out back to the pool and held her head underwater for several minutes until convinced she was dead. Mr. Fischbacher then fled to Canada. The United States requested his extradition from Canada for the offence of first degree murder.

The Minister of Justice issued an authority to proceed in accordance with s. 15 of the Extradition Act, S.C. 1999 c. 18, as amended (the Act).  The extradition hearing Judge concluded the evidence on record did not show the necessary elements of first degree murder, namely planning and deliberation, but was sufficient to establish a prima facie case of second degree murder. An order was issued for committal of Mr. Fischbacher on the Canadian offence of second degree murder. The Minister was satisfied that “double criminality” was established by the committal for second degree murder, but the decision did not preclude the Minister’s discretion to order surrender for the requested offence of first degree murder. The Minister accordingly issued a surrender order for the American offence of first degree murder.

Mr. Fischbacher sought judicial review of the surrender order. The Court of Appeal found that the “misalignment” between the surrender order and the offence for which Mr. Fischbacher was committed rendered the Minister’s order unreasonable, since no evidence was led to support an essential element of the charge on which the foreign State was requesting a surrender order.

The Supreme Court, on the other hand, held that the misalignment test is functionally inconsistent with a conduct-based approach to double criminality. By trying to prove the elements of the foreign offence, an offence-based approach is adopted which is clearly inconsistent with the Act, which specifies conduct is determinative of double criminality. Furthermore, such an approach would be inconsistent with the principles of comity. As Charron J. writes:

By requiring the Minister to evaluate whether the requested offence is “proper” in light of the foreign evidence, the “misalignment” test amounts to a second guessing of the foreign state’s assessment of its own law. This sends the message that Canada is suspicious of the ability of the foreign state to assess the evidence against its own law and decide on the appropriate offence.

Finally, requiring the “alignment” of the evidence and the foreign offence would go beyond the circumscribed role of the extradition judge to consider only the domestic side of double criminality.


It is important not to forget that the main issue was the Minister’s exercise of his discretion. S. 44(1) of the Actimposes a mandatory refusal to surrender a named person if such a surrender would be unjust or oppressive having regard to all the relevant circumstances. Mr. Fischbacher argued the Minister erred in failing to find that the surrender order would be unjust by reason of its “misalignment” with the evidence. In other words, it would be unjust to surrender an individual for a foreign offence where the evidence presented at the committal hearing does not support such a charge.

In United States of America v. Ferras, 2006 SCC 33, the Court held that the Act offers two protections to individuals at risk: admissibility provisions establish threshold reliability of evidence, and the hearing judge is required to determine whether the evidence adduced is sufficient to fulfil the legal requirements for extradition. It is doubtful whether the Act would confirm with principles of fundamental justice without these two processes. In essence, then, the Act attempts to balance the principles of comity which underlie extradition agreements with Canadian fundamental principles of justice.

Section 29(1) states:

29. (1) A judge shall order the committal of the person into custody to await surrender if

(a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner; and

(b) in the case of a person sought for the imposition or enforcement of a sentence, the judge is satisfied that the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed and that the person is the person who was convicted.

The role of the extradition judge under s. 29(1) is to determine what evidence is admissible, and whether the admissible evidence is sufficient to justify committal. Respecting the principles of comity, the requesting State need only to prove is that a reasonable jury could achieve a verdict of guilty should the case go to trial in Canada. If that threshold requirement is met, then upon surrender ultimate guilt will be decided by the court of foreign jurisdiction.  If, however, the Minister is allowed to surrender the individual for an offence where the evidentiary threshold is not met, the individual would then be denied the protection offered by s. 29(1). Although Charron J. is absolutely correct that nowhere does the statute require the Minister to “align” the offences, the principles of fundamental justice demand that the hearing judge be shown sufficient evidence to justify a committal.

The only way one can argue these principles have been respected is to say that the conduct of first degree and second degree murder would be one and the same. Since sufficient evidence of second degree murder has been led, the evidentiary threshold for such conduct has been met. Any other differences between first degree and second degree murder lie in the elements of the offence, which is inconsistent with a conduct based approach.

With respect, I cannot agree. The underlying purpose of adopting a conduct-based approach seems to be to balance the principles of comity with those of fundamental justice by requiring conduct punishable in a foreign state also be punishable in Canada. S. 3(2) of the Act states:

For greater certainty, it is not relevant whether the conduct referred to in subsection (1) is named, defined or characterized by the extradition partner in the same way as it is in Canada.

In other words, the same conduct by any other name remains that conduct. In respecting comity, the “essence of the offence” to which Charron J. alluded is the key; therefore, minor discrepancies in the elements of the offence won’t preclude the Minister’s discretion to surrender. The essence of the offence of first degree murder, however, differs widely from second degree murder.  An individual premeditating a deliberate murder is fundamentally different from that same individual perpetrating second degree murder. Thus, interpreting s. 3(2) in accordance with the overall scheme of the Act requires a wider interpretation of conduct than one encompassing mere physical activity: “conduct” must also include varying degrees of mens rea.

If we then accept there are two different conducts to be shown, then only the evidentiary threshold to show second degree murder has been met. For the Minister to surrender the Mr. Fischbacher on a charge of first degree murder would be to bypass the fundamental protections contained in the Act in forcing a domestic analysis through a Canadian prism. Thus, the Minister would be bound by s. 44(1) to refuse the surrender as being unjust.

In conclusion, while the “misalignment” test is inappropriate in light of its disregard for the principles of comity and contradiction with a conduct-based approach, there remains a lacuna to be addressed. Where evidence is insufficient to meet threshold reliability for the alleged offence committed in a foreign State, some mechanism must exist to ensure the built-in protections of the Extradition Act remain applicable. An expansion of the limited reading of the conduct-based approach may possibly begin to address this. Regardless, pointing out the inherent flaws of the “misalignment” test does not address the underlying concerns of granting the Minister what amounts to essentially unfettered discretion. While the facts of the case at hand may turn either way (as evident from the dissent of Fish J.,) there remains a real concern that, in taking one step forward, the Court has taken two steps back.

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