No Clarification on Extradition: MM v United States of America
In MM v United States of America, 2015 SCC 62 [MM], both the public and the Bench were sharply divided on whether to extradite a mother, MM. The U.S. sought extradition of MM to face child abduction charges in the state of Georgia. MM’s numerous supporters see her as a mother that came to her children’s aid after they ran away from their abusive father. MM has received public support from the BC Civil Liberties Association, an intervener at the Supreme Court of Canada (“SCC”), Women Who Choose to Live, the New Democratic Party’s Immigration, Refugee and Citizenship Critic, Jenny Kwan and other organizations. In much anticipated reasons, the SCC narrowly rejected this characterization and held that MM should be extradited. However, the impact of the SCC’s decision is now unclear, in light of the recent announcement by the new Minister of Justice, the Honourable Jody Wilson-Raybould, that she will reconsider MM’s case.
There have been several factual discrepancies in MM’s submissions. In one version of events, the children’s elder sister drove them to Canada (MM, para 91), while the second version of events is that the mother drove them to Canada (MM, para 137). The undisputed facts are that the three children ran away from their abusive father who had sole custody in late October 2010 and later reached out to their mother in early November 2010. In December 2010, the Georgia police located the mother and her three children in a battered women’s shelter in Quebec.
Brief Overview of Extradition Process
After extradition is requested, there are three stages that occur in Canada: Authority to Proceed (“ATP”), committal phase, and surrender for extradition. The Minister of Justice (“the Minister”) begins the process by using an ATP pursuant to s. 15 of the Extradition Act, SC 1999, c 18 [EA]. At this stage, the Minister is required to identify the corresponding Canadian offences pursuant s. 15(3)(c) of the EA. In MM, the corresponding offences were ss. 280(1) and 281(1) of the Criminal Code, RSC, 1985, c C-46. The ATP was not subject to appeal.
The second stage of the extradition process is the committal phase. At this stage, the extradition judge considers whether the evidence in the certified record of the case (“ROC”) makes out the element of the Canadian offence, pursuant to s. 29(1)(a) of the EA. The extradition judge must also ensure that the person is in fact the person sought by the extradition partner.
At the final stage of the extradition process, the Minister must decide whether to surrender the person or refuse to extradite. The EA sets out a statutory framework either for the Minister to surrender, surrender with conditions, or to refuse surrender. In MM, the relevant provision was in s. 44(1)(a), “[t]he Minister shall refuse to make a surrender order if the Minister is satisfied that the surrender would be unjust or oppressive having regard to all the relevant circumstances” [Emphasis added].
Committal for Trial: A mini-trial?
The SCC was sharply divided on the application of the double criminality principle. This principle requires the conduct of the person, if it had been committed in Canada, to constitute an offence punishable in Canada (EA, s. 3(1)(b)). For the majority, Justice Cromwell correctly held that the extradition judge should be primarily concerned with weighing inculpatory evidence in the ROC. The extradition judge needed to be satisfied that there is “some evidence of culpability for every essential definitional elements of the crime for which the Crown has the evidential burden” (R v Charemski,  1 SCR 679, para 3). The extradition judge was not tasked with conducting a mini-trial. Post-Ferras, the Court allowed for limited weighing of the evidence by the extradition judge at the committal phase (United States of America v Ferras,  2 SCR 77). The rationale for minimal weighing of evidence is to prevent someone from being extradited, depriving them of their liberty, when there is very limited evidentiary basis for the charges against him or her.
Justice Abella, writing for the dissent, held the extradition judges should conduct a more rigorous weighing of the evidence at the committal stage. The dissent held the test was whether a jury could reach a guilty verdict (MM, para 216). As a result, the extradition judge could consider defences. In the ATP, the Minister found ss. 280(1) and 281(1), offences pertaining to child abduction, as the Canadian offences akin to the offences in Georgia. There is a statutory defence found in s. 285, “no one shall be found guilty of an offence under sections 280 to 283 if …[it]was necessary to protect the young person from danger of imminent harm…” [Emphasis added]. The children had fled their abusive father and were allegedly living out of an abandoned house when they contacted their mother. Therefore, Justice Abella held that, given the defence available to MM in Canadian law, a properly instructed jury could not convict.
The majority took the position that the evidentiary record simply needs to be rich enough to make a prima facie case for all the elements of the offence. The dissent favored the adoption of a more robust consideration of the evidence, which allowed for the inclusion of exculpatory evidence. There are two problems with the dissent’s analysis. First, the extradition judge is likely not well-equipped to conduct a mini-trial into the merit of the case. For example, since the alleged offence occurred in a foreign jurisdiction, it is unlikely that the judge will have access to oral testimony of witnesses. Furthermore, it is not likely that the ROC will contain as rich an evidentiary record as the prosecutor present at trial. Second, if the extradition judge is required to conduct a mini-trial into each case, it will prevent Canada from promptly meeting its international obligation to its extradition partners. The dissent, aware of this criticism held, “[a] meaningful judicial determination of whether the double criminality requirement is met should not be sacrificed on the altar of potential concerns of expediency, comity, and costs” (MM, para 230). While compelling, it does undermine the principle underlying extradition: while a person is in a country, he or she is subject to that country’s criminal law and should expect to be answerable to it (United States v Burns,  1 SCR 283, para 72)
Surrender for Extradition: The Role of Defences and Best Interest of the Child
The Court was sharply divided on whether the Minister’s decision to surrender MM fell within the ambit of reasonableness. MM raised two points on why the Minister’s decision to surrender was unreasonable. First, Georgia lacks a defence akin to the defence of necessity, as is set out in s. 285. Second, the Minister did not properly consider the best interest of the child.
The Minister held that defences are considered by foreign jurisdiction. In MM, the SCC departed from that stance.
Justice Cromwell established a three part test to determine whether the absence of defence(s) similar to Canadian defence(s) contravened the principles of fundamental justice, rendering surrender “unjust and oppressive” pursuant s. 44(1)(a) of the EA. First, the person sought has the onus of demonstrating that the extradition partner has there is no similar defence. “The difference must be one of substances and not merely a matter of different labels of slight variations in the way the defence is defined” (MM, para 122). Second, the defence must have reasonable prospect of success, if the accused were tried for the same conduct in Canada (MM, para 123). Third, the absence of the defence must cause the individual sought to be at “significantly greater jeopardy” (MM, para 124). Justice Cromwell, in applying the test to the case at bar, held MM failed to meet the first and third element of the test as insufficient evidence was before the Court to make these factual determinations. Justice Cromwell held the second stage of the test was not met because the factual record did not demonstrate that the MM would meet the statutory test set out in s.285.
The dissent conceded that defences do not alter the analysis of whether the domestic component of double criminality is met (MM, para 246). Nonetheless, Justice Abella implies that the Minister should consider the totality of the case, in order to “act as a safety valve to preclude extradition even where the formal legal requirements for committal appear to have been met” (MM, para 251).
Justice Abella provided a more compelling analysis on the need for the Minister to consider the best interest of the child, and how the Minister’s determination that the best interest of the child was unknown was an unreasonable determination. The children ran away from an abusive father. The public’s response to this case represents a moral position of Canadians that the Minister should not punish a mother for coming to the rescue of her children. Additionally, the social worker in Quebec made 15 attempts to contact the father, he only responded once before his number was disconnected (MM, para 273). If MM is extradited, the children are likely to end up in foster care. While the majority and Minister are correct that the best interest of the child and the possibility of foster care do not preclude criminal prosecutions, the Minister is not engaged in criminal prosecution. The extradition process is not a mini-trial. The Minister is not concerned with how the best interest of the child is considered in criminal prosecution. Before the extradition judge, the Minister conceded that he was tasked with considering how extradition will impact the best interest of the child. At its heart MM is a complicated custody dispute that led to MM taking custody of the children in Canada, contrary to a Georgia court order. Given the new Minister’s commitment to review the case less than two weeks after the SCC decision, it seems likely she will reach a different conclusion and will refuse to surrender MM.
The SCC divided on the role of the committal phase, the application of double criminality, the possibility of raising defences at the committal phase, and the weight given to best interest of the child. Given the number of areas the Court divided on, hopefully the Court will provide clarity in future cases, to give vulnerable individuals facing extradition greater guidance on their legal rights and opportunities for recourse.