Schreiber to SCC: Save a Last Dance For Me

A fallen international businessman has, until recently, split his time between Parliament hill and a humble detention centre in west Toronto. He was recently granted bail by the Ontario Court of Appeal for $1.31 million dollars. The reputation of a former and sitting Prime Minister hang on his words. While his fate in turn rests on the decision of our country’s highest tribunal, situated on a bluff a few blocks west of Parliament Hill.

Few applicants to the Supreme Court of Canada (“SCC”) gain the notoriety of Karlheinz Schreiber.

Due to the recent testimony to the House of Commons Ethics Committee, both Mulroney and Schreiber have filled the news media. However Schreiber’s current application to the SCC has gained only a passing reference.

What are Schreiber’s chances in getting leave to appeal to the SCC? The Canadian Press quoted Osgoode Hall Law School Dean Patrick Monahan “It’s extremely difficult, in any event, to get leave (to appeal) to the Supreme Court of Canada. You’ve got to show that the case raises a point of law that’s of national importance. So it’s a fairly high bar to get over.” According to Monahan the SCC rejects about nine out of every ten applications it receives.

That being said, the odds are against Schreiber that the SCC will hear his current appeal. But how did he get to the SCC twice before?

Schreiber’s first date at the SCC came nearly a decade ago in Schreiber v Canada (Attorney General), [1998] 1 SCR 841. In 1998 he alleged that the Canadian standard regarding the issuing of search warrants was breached when the federal Department of Justice sent a letter requesting information about his overseas bank accounts to Swiss authorities. The Canadian authorities were seeking assistance from their Swiss counterparts to assist with a criminal investigation against Schreiber in Canada. No search warrant or prior judicial authorization had been obtained in Canada and Schreiber brought a case before the Federal Court.

The SCC held that prior judicial authorization was not required for such a letter of request. Essentially finding that the Department of Justice inquiries initiated a process that would lead to search and seizure but was not search or seizure in itself. L’Heureux-Dubé J. stated:

A search carried out by foreign authorities, in a foreign country, in accordance with foreign law does not infringe on a person’s reasonable expectation of privacy.

Thus the action of the Swiss authorities are not subject to Charter scrutiny, although evidence at the subsequent criminal trial may be.

Schreiber was back at the SCC three years later in Schreiber v Canada (Attorney General), [2002] 3 SCR 269 for a different issue of law connected with his extradition. The Federal Republic of German had issued a warrant for Schreiber’s arrest for tax evasion and other offences. The Canadian Department of Justice authorized the Attorney General of Canada to apply for a provisional arrest warrant pursuant to the Extradition Treaty between Germany and Canada. After spending eight days in Jail before his release on bail, Schreiber brought an action against Germany for personal injuries.

The Federal Republic of Germany was successful in requesting this action be dismissed. Germany claimed sovereign immunity through the provisions of the State Immunity Act. Deprivation of freedom was held to be a reasonable consequence of lawful imprisonment.

Jumping ahead to 2007, Schreiber is still in the courts fighting his extradition to Germany. In a May 2007 decision, Schreiber v Germany, 2007 ONCA 354 of the Ontario Court of Appeal, Schreiber was unsuccessful in his judicial review of the December 14, 2006 decision of the Minister of Justice regarding his surrender to German authorities. The Court of Appeal considered Schreiber’s request for review due to “fresh evidence” of two press reports by German court officials. Schreiber alleged these reports denied him the opportunity for a fair trial in Germany.

The Court of Appeal held the surrender would not be “simply unacceptable” or “sufficiently shock[ing to] the conscience” of Canadians as required to offend s. 7 of the Charter in Kindler v Canada (Minister of Justice), [1991] 2 SCR 779.

The Ontario Court of Appeal dismissed a further request, Schreiber v Canada (Attorney General), 2007 ONCA 791 for judicial review of Schreiber’s extradition order this November. The court deferred to the federal Minister of Justice’s decision that Schreiber’s extradition lacked new information to justify surrender and was nearing finality.

So after two appearances Schreiber’s fate rests once again with the SCC. You can trust that both hungry media commentators and TheCourt.ca will be watching.