Appellant Attorney General of Canada

File No.
35548
SUPREME COURT OF CANADA

(ON APPEAL FROM A JUDGMENT OF THE QUÉBEC COURT OF APPEAL)
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
APPELLANT
(Respondent)
- and -
ANTHONY BARNABY
RESPONDENT
(Applicant)
APPELLANT’S MEMORANDUM OF ARGUMENT

(Rule 42 of the Rules of the Supreme Court of Canada)
Me Ginette Gobeil Me Robert J. Frater

Me Marc Ribeiro Attorney General of Canada
Department of Justice Canada Suite 500, Room 556
East Tower, 9th Floor 50 O’Connor Street
Guy Favreau Complex Ottawa, Ontario
200 René-Lévesque Blvd. West K1P 6L2
Montréal, Québec
H2Z 1X4
Tel.: 514 496-8115 (Me Gobeil) Tel.: 613 670-6289

Tél. : 514 283-6272 (Me Ribeiro) Fax: 613 954-1920
Fax: 514 283-3856 robert.frater@justice.gc.ca
ginette.gobeil@justice.gc.ca
marc.ribeiro@justice.gc.ca
Counsel for Appellant Agent for Appellant
Henri A. Lafortune Inc. 2005 Limoges Street

Tel.: 450 442-4080 Longueuil, Québec J4G 1C4
Fax: 450 442-2040 www.halafortune.ca
lafortune@factum.ca L-3715-13
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Me Clemente Monterosso Me Richard Gaudreau

6697 de la Roche Street Bergeron, Gaudreau
Montréal, Québec 167 Notre-Dame de l’Île Street
H2S 2E2 Gatineau, Québec
J8X 3T3
Tel.: 514 948-2006 Tel.: 819 770-7928

Fax: 514 948-6131 Fax: 819 770-1424
clemente.monterosso@videotron.ca bergeron.gaudreau@qc.aira.com
Counsel for Respondent Agent for Respondent

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TABLE OF CONTENTS
Page
PART I – STATEMENT OF FACTS .........................................1
A. Overview .........................................1
B. The US evidence and procedural history .........................................2
C. The decision of the Minister .........................................7
D. Decision of the Quebec Court of Appeal ....................................... 10
PART II – ISSUE ....................................... 12
PART III – STATEMENT OF ARGUMENT ....................................... 13
A. The principle of comity: deference for the

foreign system of extradition ....................................... 13
B. The “shock the conscience” threshold ....................................... 15
C. Multiple trials in Canada ....................................... 18
D. Multiple trials in the United States ....................................... 22
E. The new evidence ....................................... 26
F. The Minister’s decision is reasonable ....................................... 29
PART IV – ORDER SOUGHT CONCERNING COSTS ....................................... 33
PART V – ORDER SOUGHT ....................................... 34
PART VI – ALPHABETICAL TABLE OF AUTHORITIES ....................................... 35

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TABLE OF CONTENTS
Page
PART VII – STATUTES, REGULATIONS, RULES
Canadian Charter of Rights and Freedoms, Part I of the

Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (U.K.), 1982, c. 11 (Extracts) ....................................... 38
French version ....................................... 41
Extradition Act, S.C. 1999, c. 18 ....................................... 44

_______________
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Appellant’s Memorandum of Argument Statement of Facts
PART I – STATEMENT OF FACTS
A. Overview
1. The Respondent and his co-accused David Caplin are sought by the United States
of America to be tried in connection with the brutal hate-inspired murder of a
lesbian couple in the State of New Hampshire in 1988. This would be the
Respondent’s fourth trial in the requesting State, as the first three trials in 1989
and 1990 each resulted in a hung jury. Mr. Caplin never faced trial because the
prosecution withdrew the charges after successful pre-trial motions to exclude
evidence. Pursuant to US and State law, the New Hampshire prosecuting
authorities reinstated charges against both defendants and are now seeking their
extradition on the basis of a record which includes new evidence. The Minister
agreed to surrender both the Respondent and his co-accused Mr. Caplin.
2. The Quebec Court of Appeal confirmed the Minister’s decision to surrender

Mr. Caplin. However, it quashed the decision in relation to the Respondent,
holding that a fourth trial would be abusive in both Canada and the United States,
in particular as the Court concluded that no "true new evidence" was submitted by
the requesting authorities against the Respondent. In doing so, the Court of
Appeal showed an insufficient level of deference to the Minister’s decision, and
ultimately usurped the responsibility of the trial judge in the United States to
ensure trial fairness.
3. This decision is antithetical to the principles of comity and respect for other
jurisdictions upon which the law of extradition is based. It is settled law that
Canadian authorities are justified to defer to the requesting state's system of law
and its application by its Courts. When a concern is raised by the individual about
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the process he will face in the requesting state, it is only in exceptional

circumstance that Canadian Courts may intervene to quash the surrender order.
The Court of Appeal should have reviewed the reasonableness of the Minister’s
decision based on the “shocks the conscience” standard. This is a very high
threshold applicable only in exceptional cases of “real substance”.
4. The extradition of the Respondent is not one of those exceptional cases. Even if
the Respondent were being tried in Canada, a fourth trial after juries were unable
to reach a verdict in previous trials would not necessarily amount to an abuse of
process. A balancing exercise would have to occur. While new evidence is not
required to justify a new trial, new evidence proposed by the Crown is one of the
factors to be considered in assessing whether a new trial would be appropriate.
Fourth trials have been allowed in recent years in Canada. Under U.S. law, a
similar balancing exercise is applicable to determine whether it is acceptable to
subject an accused to another trial after previous trials resulted in deadlocked
juries. The foreign state in this case therefore has mechanisms to address the
legality of submitting the Respondent to another trial. Extradition to the foreign
state in these circumstances to face two murder charges does not "shock the
conscience". The Minister is owed deference in his assessment in that regard and
the Court of Appeal improperly intervened to quash the surrender order.
B. The US evidence and procedural history
5. In 2011, the United States of America sought the extradition of the Respondent
and David Caplin to face charges of first and second degree murder in the State of
New Hampshire in connection with the 1988 killings of Charlene Ranstrom and
Brenda Warner. 1
1
Appellant’s record hereinafter “A.R.”, Diplomatic note, pages 52 to 55.
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6. The evidence provided by the U.S. authorities in support of the extradition request
alleges that on the night of October 2 and early morning of October 3, 1988, the
Respondent and Mr. Caplin tied up and repeatedly stabbed Charlene Ranstrom
and Brenda Warner to death in the victims’ apartment in Nashua, New Hampshire.
Their bodies were found by Joel Ranstrom, Ms. Ranstrom’s son. 2
7. The victims had complained to the police about a theft of cable from the apartment
building where they resided and this resulted in charges against a friend of the
Respondent. 3 The Respondent allegedly threatened the victims that they would
not live to see the Court date if they did not drop the charges. He also used
profane and anti-lesbian epithets against them and had an altercation with them on
October 2, 1988, the day before their bodies were discovered. 4
8. The Respondent made several verbal and written statements to police during
which he is alleged to have progressively accepted his responsibility in the deaths
of the women. 5 He indicated that he did not like lesbians and that Mr. Caplin was
angry at the women and suggested that they kill them. 6 He described how on the
night of the murders Mr. Caplin obtained the knives and a wooden board and
provided him with one of the knives and one of his socks to wear on his hand so
they would not leave fingerprints. 7 He then described how he and Caplin went to
the victims’ apartment and knocked at the door several times. When Ms. Ranstrom
opened the door, Mr. Caplin swung the board in her face knocking her to the
floor. 8 He stated that he and Mr. Caplin had tied the victims and took turns
repeatedly stabbing them. He then threw his knife off the veranda upon leaving the
2
A.R., page 70, Record of the case (ROC), page 6, para. 19.
3
A.R., page 65, ROC, page 1, para. 4.
4
A.R., pages 65-68, ROC, pages 1-4, paras. 6, 7b), 7c), 12b) and 13.
5
A.R., pages 70-80, ROC, pages 6-16, paras. 20-28.
6
A.R., pages 76-78, ROC, pages 12-14, para. 25j).
7
8
A.R., pages 76-78, ROC, pages 12-14, para. 25j).
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apartment and left the sock that had covered his hand at the bottom of the stairs to
the apartment. 9 He later denied that he had voluntarily disclosed much of this
evidence to police. 10
9. The medical examiner also opined that the sequence of events as described by
the Respondent was consistent with the injuries observed at autopsy. 11 According
to the medical examiner, both victims had been tied up and had died during the
night of multiple stab wounds 12 that were consistent with two knives that were later
recovered from the back yard of the apartment complex. 13
10. The Respondent’s statements are also consistent with the two blood-stained socks
found at the crime scene, one outside the door to the women’s apartment and the
other at the bottom of the stairs leading to their apartment, and the two knives
found in the back yard. 14
11. Several other items were recovered from the crime scene, namely, seven pubic
hairs in various locations of the victims’ apartment 15 and a blood stained denim
jacket in the Respondent’s apartment 16 that witnesses saw Mr. Caplin wearing on
the night of the murders. 17
12. In 1989, the Respondent was indicted on two counts of first degree murder.
He proceeded to trial on three occasions between 1989 and 1990 ending in a hung
9
10
A.R., pages 90-94, ROC, pages 26-30, para. 44.
11
A.R., page 81, ROC, page 17, para. 30c).
12
13
14
15
A.R., page 86, ROC, page 22, paras. 42a)-42e).
16
17
A.R., page 69, ROC, page 5, paras. 16 and 18a).
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jury each time as a unanimous verdict could not be reached. At the conclusion of
the third trial, the prosecution entered a nolle prosequi against him. 18
13. In 1990, Mr. Caplin was charged with first degree murder. Prior to his trial, motions
to exclude evidence were heard by the trial judge who concluded that it should not
be admitted at trial. The trial judge’s decision was later confirmed on appeal. The
prosecution then entered a nolle prosequi against him. 19
14. In 2010, the US authorities reopened the investigation into the alleged murders.
The U.S. authorities now have the following testimonial evidence that was not
available for the first three trials 20:
• Corrections Officer Duane Baron is expected to testify that while incarcerated

in 1989 the Respondent made threats that he would kill Baron by stating: “I’m
going to do you like I did those two bitches.” 21 Mr. Baron did not report these
threats at the time because he thought that the Respondent had already
been convicted for the murders. Only when he learned that the charges
against the Respondent had been dropped did he realize the importance of
this information and reported it to the police. 22
• Frank Metallic is expected to testify that the Respondent indicated to him that
he and Mr. Caplin went up to the victims’ apartment on the night of the
murders and that Mr. Caplin struck Ms. Ranstrom in the face with a two by
four and proceeded to stab the victims, to remove his jean jacket and to look
for money in a cookie jar. 23 Mr. Metallic was uncooperative at the time of the
18
A.R., page 32, Memorandum to the Minister, page 3.
19
A.R., pages 32-33, Memorandum to the Minister, pages 3-4.
20
A.R., pages 33, 36-37, Memorandum to the Minister, pages 4, 7-8.
21
22
23
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initial trials but is now willing to testify against the Respondent and
Mr. Caplin. 24
• Melissa Metallic is expected to testify that a week or two prior to the

homicides, the Respondent told her and her then boyfriend Dion Methot that
he was going to kill two lesbians in Nashua that lived above him and cut them
with a chainsaw. Dion Methot is expected to testify that he was with Melissa
Metallic at the time and that he witnessed this statement. 25
• Richard Barnaby, the Respondent’s cousin with whom he and Mr. Caplin
were living at the time of murders, is expected to testify that he ran into
Mr. Caplin in 2010 and that Mr. Caplin had a kitchen knife sticking out of his
pants. When asked why he had the knife, Mr. Caplin told him it was for
anyone who crossed him and that he would do to them what he did to those
two women. 26
• Detective Bourgeois of the Nashua Police spoke with the Respondent in

Montreal on October 27, 2010. The Respondent told him that he never went
into the victims’ apartment, nor did Mr. Caplin. On November 5, 2010, the
Respondent called Det. Bourgeois and stated that he saw Mr. Caplin exit the
victims’ apartment on the night of the murders wearing a jean jacket and saw
Mr. Caplin stuff the jean jacket into the couch but kept his shirt on. 27
15. Moreover, utilizing technology that was unavailable at the time of the initial
investigation, the FBI crime laboratory reported the following to New Hampshire
authorities in April 2011:
24
25
A.R., page 95, ROC, page 31, paras. 47-48.
26
27
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• Pubic hairs found in various locations in the victims’ apartment including on

the victims, and towels soaked in their blood, were found to be consistent
with Mr. Caplin’s mito-DNA profile. 28
• A clump of cut hair found in the breast pocket of a denim jacket discovered in
the closet of the Respondent’s apartment which also had blood on the sleeve
that belonged to Ms. Warner was consistent with Mr. Caplin’s DNA. 29
16. On September 13, 2011, based on this evidence and following their extradition
hearing, the Respondent and Mr. Caplin were ordered committed to await
surrender for the corresponding Canadian offence of murder. They did not appeal
their committal by the extradition judge. 30
C. The decision of the Minister
17. On November 28, 2011 the Respondent made submissions to the Minister arguing
that surrendering him to the United States to face a fourth trial would amount to an
abuse of process, based on this Court’s decision in R. v. Keyowski 31, and that the
Record of the Case did not allege any new evidence justifying a fourth trial. 32
18. The Respondent provided the Minister with a letter from Mr. Mark K. Sisti, the
Respondent’s U.S. defence counsel at his previous three trials. In this letter,
Mr. Sisti personally opined that a fourth trial twenty years after the alleged murders
would be unprecedented in the State of New Hampshire and that to place the
Respondent on trial a fourth time would not only be novel, it would be oppressive
28
29
30
A.R., pages 109-116, Decision of Justice Zigman.
31
Appellant’s Book of Authorities hereinafter A.B.A., Tab 17, R. v. Keyowski, [1988]
1 S.C.R. 657.
32
A.R., pages 126-128, Letter of Respondent’s counsel dated November 28, 2011 to the
Minister.
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and prejudicial to the Respondent due to the passage of time and the deterioration
of the evidence. 33
19. On March 28, 2012, after carefully considering the Respondent’s submissions, the
Minister ordered his surrender for the American charges of first and second degree
murder. In his decision the Minister summarized the applicable Canadian and U.S.
legal standards regarding multiple trials, and noted the new evidence announced
by the US authorities in his case. The Minister decided this was not a case where
the extradition itself would be unjust or oppressive or contrary to the principles of
fundamental justice, and deferred to the American justice system to assess the
merits of Respondent’s arguments regarding the multiplicity of proceedings:
You have referred me to the decision in R. v. Keyowski, [1988]

S.C.R. 657, which addressed the jurisdiction of a trial judge to
control the proceedings in order to prevent an abuse of
process, including the trial judge's authority to grant a stay of
proceedings. I note that in R. v. Keyowski, the issue before the
court was whether the matter could proceed to trial a third time
when a jury had on two prior occasions been unable to reach a
unanimous verdict. The Supreme Court of Canada held that a
third trial may stretch the limits of the community's sense of fair
play but does not of itself exceed them so as to constitute an
abuse of process, even in circumstances in which there was no
new evidence to be tendered.
In light of your submissions, further information was sought from

the United States regarding the legal basis for a fourth trial. The
United States Department of Justice, Office of International
Affairs, advised that in the State of New Hampshire, a
defendant may be retried on the same charges if the jury
cannot reach a unanimous verdict and the prosecution
subsequently enters a nolle prosequi. The entry of the nolle
prosequi does not affect the State of New Hampshire's ability to
go forward again on the charges, as there is no statute of
limitations for the offence of murder.
33
A.R., pages 124-125, Letter of Respondent’s counsel dated January 30, 2012 to the
Minister.
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The United States authorities have further advised that the Fifth
Amendment to the United States Constitution, and Part 1,
Article 16, of the New Hampshire Constitution protect a criminal
defendant against double jeopardy, and that a deadlocked jury
does not bar a retrial because jeopardy is deemed not to have
ended. Thus, the United States authorities have advised that
since Mr. Barnaby was neither acquitted nor convicted of the
charges upon which he was tried, double jeopardy does not
prevent his retrial. I note that in Canada, the Criminal Code
does not provide for a restriction on the number of times a
person's trial may end with a jury being unable to reach a
unanimous verdict, although the decision to reprosecute is
subject to scrutiny under section 7 of the Charter. In that regard,
I have been advised that Mr. Barnaby will have the opportunity
to move to dismiss the fourth trial as a violation of his due
process rights, on the basis of Part 1, Article 14, of the
New Hampshire Constitution, and claim that the delay in
reinstating these charges has caused him prejudice.
Finally, I note that the Record of the Case summarizes

evidence that was not available at the time of Mr. Barnaby's
three previous trials but that has since come to light. You have
not addressed this new evidence in your submissions, or why
you do not believe it to be new, other than to point out its
possible fallibility. There are a number of witnesses who are
now willing to testify against Mr. Barnaby. He will have an
opportunity to challenge the admissibility and reliability of the
evidence of these witnesses at trial in New Hampshire.
For the reasons set out above, I am satisfied that there is

nothing in the circumstances of Mr. Barnaby's case that would
displace Canada's overall confidence in the American justice
system. The United States has provided information which
shows that under the laws of the State of New Hampshire,
Mr. Barnaby can be prosecuted for the alleged murders of
Ms. Warner and Ms. Ranstrom, and can challenge his
prosecution as a violation of his due process rights. I am also
satisfied that Mr. Barnaby's surrender to the United States
would not be unjust or oppressive, or contrary to the principles
of fundamental justice. 34
34
A.R., pages 7-8, Minister’s decision, pages 7-8.
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20. The Minister also ordered the surrender of the co-accused David Caplin on this
same date.
D. Decision of the Quebec Court of Appeal
21. The Court of Appeal upheld the Minister’s decision to surrender Mr. Caplin. 35
However, the Court of Appeal quashed the Minister’s order to surrender the
Respondent to the United States to face a fourth trial finding that, contrary to the
Minister’s evaluation which it deemed unreasonable, such an order amounted to
an abuse of process. 36 In coming to this conclusion, the Court of Appeal relied on
the letter from the Respondent’s U.S. defence counsel provided to the Minister and
disregarded the information obtained by the Minister from the American
authorities. 37
22. The Court found that there was “no precedent for submitting an accused to the
stress and tribulations of a fourth trial on the same charges, particularly when the
only true “new evidence”, in this instance, the DNA evidence, does not in any way
implicate him and three previous juries did not once find him guilty”. 38 The Court
found that the totality of the 2010-2011 testimony, although providing additional
information, was not “new” evidence because “nothing in the file indicates that that
information would not initially have been available from those same witnesses.” 39
The Court declared that submitting the Respondent to a fourth trial in these
“exceptional circumstances” would, in the absence of any “true new evidence”
linking him to the crimes, constitute “an outrage, in his case, to the community’s
sense of fair play and decency, so as to amount to an affront to the fundamental
principles of justice applicable in both jurisdictions of concern and thus constitute
35
A.R., page 28, Appeal reasons, page 3, para. 16.
36
A.R., page 28, Appeal reasons, page 3, paras. 13-15.
37
38
39
A.R., pages 26-27, Appeal reasons, pages 1-2, para. 8.
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an abuse of process”, adding that “the prosecution is not expected to go after an

accused until it finds a judge or jury willing to convict”. 40
----------
40
A.R., page 28, Appeal reasons, page 3, para. 14 (Emphasis added).
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Appellant’s Memorandum of Argument Issue
PART II – ISSUE
23. The issue on this appeal may be stated as follows: did the Court of Appeal err in
finding that the order surrendering the Respondent to the USA was unreasonable?
24. It is the Appellant’s position that the Court of Appeal did so err and the Minister’s
order was reasonable and should be upheld.
----------
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Appellant’s Memorandum of Argument Statement of Argument
PART III – STATEMENT OF ARGUMENT
A. The principle of comity: deference for the foreign system in extradition
25. The issue in this appeal is not whether a fourth trial for the Respondent should be
stayed if it was to take place in Canada, but whether the Minister’s decision was
reasonable when he decided to surrender the Respondent to face the criminal trial
process in the United States.
26. The Charter, like other rules applicable in the extradition context, must be
interpreted in light of the principle of comity and Canada’s international obligations
which dictate a high degree of deference for the requesting state’s legal system. 41
It entails inter alia that: (1) the Minister is generally entitled to defer to the
extradition partner’s legal and constitutional rules even if they are different from
our own, as the Charter and Canadian rules are not to be given extra-territorial
effect vis-à-vis the legal proceedings in the requesting state; and (2) the Minister is
also generally entitled to defer to the extradition partner’s criminal Courts to apply
these foreign rules to the fact of the case.
27. In general, individuals who choose to leave Canada leave behind the Charter,
Canadian law and procedure, and must accept the local law, procedure and
punishments which the foreign State applies to its own residents. 42 A person who
is accused of violating the laws of a foreign country within its jurisdiction therefore
cannot complain of being surrendered to that country for trial in accordance with its
41
A.B.A., Tab 4, Canada v. Schmidt, [1987] 1 S.C.R. 500, p. 515-16, 518, 527; A.B.A.,
Tab 1, Argentina v. Mellino, [1987] 1 S.C.R. 536, p. 554-55; A.B.A., Tab 34, United States
v. Allard, [1987] 1 S.C.R. 564, p. 571; A.B.A., Tab 9, Kindler v. Canada (Minister of
Justice), [1991] 2 S.C.R. 779, p. 844-45; A.B.A., Tab 16, R. v. Hape, [2007] 2 S.C.R. 292,
para 48; A.B.A., Tab 2, Canada (Justice) v. Fischbacher, [2009] 3 S.C.R. 170, para. 52.
42
A.B.A., Tab 35, United States v. Burns, [2001] 1 S.C.R. 283, para. 72.
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procedures, even if they may differ from the specific requirements for trial in
Canada. 43
28. In an unbroken line of cases since the companion cases of Mellino, Schmidt and
Allard, this Court and Courts of appeal across the country have held that it must be
presumed that a person sought for extradition will receive a fair trial in the
requesting state according to its laws and that this assumption underlies the whole
theory and practice of extradition. Matters of due process generally are to be left
for the Courts in which the extradition is sought. Attempts by Canadian Courts to
pre-empt decisions on such matters have been held to directly conflict with the
principle of comity. 44
29. The Courts in the State wishing to try an individual for the fourth time should thus
generally be the ones that determine whether it would be fair to proceed according
to laws applicable in that State. The factors that militate for or against holding a
new trial are factors to be assessed by the Courts in the foreign jurisdiction. There
are practical as well as policy reasons for deferring to the trial Court in the foreign
jurisdiction where the witnesses and the evidence are located. A truly contextual
balancing of all the considerations in determining whether a fourth trial would
violate the rights of the person sought requires access to all the evidence and the
totality of the circumstances which is only possible at trial in the requesting state.
There may be questions to be addressed in the foreign Courts, such as whether
there are witnesses who might not be able to appear because of the delay in
43
A.B.A., Tab 9, Kindler, supra, p. 844-47; A.B.A., Tab 4, Schmidt, supra, p. 518.
44
A.B.A., Tab 1, Mellino, supra, p. 554-555, 558; A.B.A., Tab 4, Schmidt, supra, pages 516,
524; A.B.A., Tab 34, Allard, supra, p. 571; A.B.A., Tab 30, United States of America v.
Cotroni, [1989] 1 S.C.R. 1469, page 1495; A.B.A., Tab 33, United States of America v.
Wacjman, [2002] Q.J. No. 5094 (Que. C.A.), paras. 109-111; A.B.A., Tab 6, China v.
Wong, 2009 ONCA 148, par. 4; A.B.A., Tab 28, Turchin v. United States of America, 2007
QCCA 136, paras. 59-60; A.B.A., Tab 7, Hanson v. Canada (Minister of Justice), 2005
BCCA 77, para. 26.
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laying charges, as well as other circumstances regarding the multiple trials. These
questions are for the criminal Courts in the foreign jurisdiction. 45
30. Rather than deferring to the trial process in the requesting state as the appropriate
forum for adjudicating issues of trial fairness, the Court of Appeal usurped the role
of the foreign Court and decided the issue as part of extradition proceedings in
Canada.
31. Judicial intervention such as the one undertaken by the Court of Appeal in this
case effectively constitutes interference in matters which are within the
competence of judicial authorities in the partner state. 46 Conversely, Canada
would expect foreign Courts not to exercise this kind of pre-emptive jurisdiction in
relation to trials in our country. 47
B. The “shock the conscience” threshold
32. Section 7 of the Charter states that “Everyone has the right to life, liberty and
security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice”. Section 44(1)(a) of the
Extradition Act states that extradition should be refused if “the surrender would be
unjust or oppressive having regard to all the relevant circumstances”. Both these
provisions apply to the Minister’s decision to surrender the individual.
33. The principles of fundamental justice in s. 7 of the Charter are interpreted

differently in the domestic context and in the extradition context. In the domestic
context, s. 7 and other provisions of the Charter apply to their full extent. In the
extradition context, s. 7 must be interpreted in light of the principle of comity
45
A.B.A., Tab 34, Allard, supra, page 572.
46
A.B.A., Tab 4, Schmidt, supra, pages 526-527.
47
A.B.A., Tab 1, Mellino, supra, page 555.
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described in the preceding section, which dictates that the Minister is generally
entitled to defer to the foreign system’s laws and it application by its Courts. Our
Courts may thus intervene to strike a surrender order only in the most severe
cases where extradition would “shock the conscience”. This is a very high
threshold that is reserved for the most exceptional cases where the individual
would face extreme situations that cannot be prevented by the foreign system
such as the death penalty 48, blatant disregard for trial fairness49, torture or other
serious human rights violations 50.
34. The threshold of intervention by our Courts under s. 44(1)(a) of the Extradition Act,
much like for s. 7, is informed by the principle of comity. The same threshold of
intervention by our Courts and the same deference for the Minister is therefore
applicable.
35. It is interesting to note that under the European Convention on Human Rights 51, a
similar threshold applies. Where an individual complains that they face a risk of
trial unfairness in the requesting State, an obligation to refrain from extradition
exists only in the most serious cases where the person would face a “flagrant
denial of justice in the requesting country” 52. This goes beyond an irregularity or
lack of safeguards in the trial procedures which might result in a breach of the “fair
trial” protections of the Convention if it were to occur at the domestic level. What is
required is a breach “which is so fundamental as to amount to a nullification, or
48
A.B.A., Tab 35, Burns, supra, para. 65.
49
A.B.A., Tab 3, Canada (Minister of Justice) v. Pacificador (2002), 60 O.R. (3d) 685 (C.A.),
at para. 44; A.B.A., Tab 9, Kindler, supra, p. 847.
50
A.B.A., Tab 27, Suresh v. Canada (Minister of Citizenship and Immigration), [2002]
1 S.C.R. 3, at para. 56; A.B.A., Tab 4, Schmidt, supra, p. 522; A.B.A., Tab 35, Burns,
supra, para. 69.
51
A.B.A., Tab 38, European Convention on Human Rights, 213 U.N.T.S. 221.
52
A.B.A., Tab 5, Case of Othman (Abu Qatada) v. The United Kingdom, Application
No. 8139/09 (Judgment of 17 January 2012) (European Court of Human Rights) at
para. 258.
- 17 -
destruction of the very essence, of the right guaranteed”. 53 This standard is met in
very exceptional circumstances such as for instance in cases involving convictions
in absentia which are irreversible on the merits, trials that are summary in nature
and conducted with total disregard for the rights of the defence, detention without
access to an independent and impartial tribunal, deliberate and systematic denial
of legal counsel, or the use of evidence obtained under torture 54.
36. This Court has confirmed a balancing process as the proper analytic approach to
determine whether the circumstances are such in a particular case that extradition
would “shock the conscience”. 55 Although our conceptions of what constitutes a
fair criminal law are relevant to the process of extradition, they are necessarily
tempered by other considerations such as the seriousness of the offence for which
extradition is sought and the protections that would be available to the individual in
the requesting state. The analysis remains generally informed by comity and the
good faith of Canada in honouring its international obligations, the presumption
that the person sought will receive a fair trial in the foreign jurisdiction and
reciprocity, and ensuring that Canada is not used as a safe haven by fugitives from
justice. 56
37. The factors being balanced will differ according to the context and “the outcome
may well vary from case to case”. 57 Given the Minister’s expertise and his
obligation to ensure that Canada complies with its international commitments, he is
in the best position to determine whether the factors weigh in favor or against
53
A.B.A., Tab 5, Othman, para. 260.
54
A.B.A., Tab 5, Othman, paras. 259-60, 263.
55
A.B.A., Tab 35, Burns, supra, par. 32, 64-65, 67, A.B.A., Tab 10, Lake v. Canada
(Minister of Justice), [2008] 1 S.C.R. 761, para. 32; see also A.B.A., Tab 2, Fischbacher,
supra, for the balancing exercise under section 44(1)a) of the Extradition Act, paras. 37-
39.
56
A.B.A., Tab 9, Kindler supra, page 844; A.B.A., Tab 29, United States of America v.
Anekwu, [2009] 3 S.C.R. 3, par. 27; A.B.A., Tab 10, Lake, supra, para. 39.
57
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extradition. The Minister’s assessment as to whether surrender would “shock the

conscience” is therefore accorded deference. 58
38. The approach of the Quebec Court of Appeal does away with the balancing
exercise. The Court of Appeal should have examined whether the Minister was
unreasonable in concluding that surrender would not “shock the conscience” in this
case. The Court examined the situation without any consideration of the
seriousness of the offence for which extradition is sought (a double murder), the
protections that would be available to the Respondent in the requesting state, or
the importance of meeting Canada’s treaty obligations and deferring to the
requesting state’s criminal justice system.
39. The Court of Appeal also misconstrued the law to conclude that a fourth jury trial
for the Respondent would “amount to an affront to the fundamental principles of
justice applicable in both jurisdictions of concern, and thus constitute an abuse of
process”. 59 This further tainted the Court’s analysis. The review of jurisprudence
below demonstrates that a fourth trial would not automatically be illegal in either
jurisdiction. In both jurisdictions, it would rather be assessed in light of all the
circumstances to determine whether the proceedings should be allowed to
proceed.
C. Multiple trials in Canada
40. In Canada, there is no Charter right that would necessarily protect someone from
facing multiple trials for the same offence, if each previous trial had ended in a
mistrial. Section 11(h) of the Charter only applies if the person has been “finally
acquitted of the offence” or “found guilty and punished for the offence”. It is
58
A.B.A., Tab 10, Lake, supra, at para. 34.
59
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interesting to note that the Universal Declaration of Human Rights (UDHR) 60, the
International Covenant on Civil and Political Rights (ICCPR) 61 and the European
Convention on Human Rights 62 also do not contain a provision prohibiting re-trials
for the same offence, if the individual has not been finally convicted or acquitted.
41. The Criminal Code does not provide for a restriction on the number of times a
person may be tried if a conclusive verdict is not reached in previous trials,
although the decision to submit a person to multiple trials for the same offence is
subject to scrutiny under the Canadian doctrine of abuse of process. 63
42. Thus, even if the new prosecution in the present case were to occur in Canada,
there would be a balancing exercise under the abuse of process doctrine to
determine whether a fourth trial is allowed to proceed. The decision whether to
grant a stay is more than a mere mathematical calculation. 64 The balance of
competing factors must always be considered. 65
43. In addition to the number of trials, the particular circumstances of the case must be
considered including the seriousness of the offence, the time taken by the previous
proceedings and the amount of time spent in custody. 66 While new evidence is not
60
A.B.A., Tab 41, Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc.
A/810, at 71 (1948). See Articles 10 and 11.
61
A.B.A., Tab 39, International Covenant on Civil and Political Rights, 999 U.N.T.S. 171.
See Article 14(7). A.B.A., Tab 40, The UN Model Treaty on Extradition, U.N. Doc.
A/RES/45/116, December 14, 1990, does not contain such a provision either.
62
See A.B.A., Tab 38, European Convention on Human Rights, supra, Protocol No. 7,
Article 4.
63
A.B.A., Tab 17, Keyowski, supra, p. 659-60; A.B.A., Tab 14, R. v. Babos, [2014] 1 S.C.R.
309, para. 37.
64
A.B.A., Tab 19, R. v. Nicholson, 2003 ABCA 283, at para. 3; A.B.A., Tab 13, R. v.
B.W.W., [1999] N.W.T.J. No. 42 (NTSC), paras. 28-46.
65
A.B.A., Tab 14, Babos, supra, para. 41.
66
A.B.A., Tab 17, Keyowski, supra, page 660.
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required to justify a new trial, new evidence brought by the Crown increases the
legitimacy of a new trial. 67
44. In the domestic doctrine of abuse of process, repeatedly prosecuting an accused

for the same offence after successive juries have been unable to reach a verdict
falls under the residual category of abuse. 68 In this residual category of abuse of
process, a stay of proceedings will be “exceptional” and “very rare”. It will be
ordered only in the “clearest of cases”. This threshold presents the accused with
an onerous burden which must be met at the outset of a balancing exercise. It is
only where the “affront to fair play and decency is disproportionate to the societal
interest in the effective prosecution of criminal cases” that a stay of proceedings
will be warranted. 69
45. This Court’s decision in R. v. Keyowski involved charges of impaired driving and
dangerous driving which had caused the death of two people. The first two trials
had resulted in a hung jury. The Crown wished to proceed with a third trial. It did
not appear the Crown had any new evidence to present at the third trial. 70 This
Court found that in the circumstance of that case, a third trial stretched the limits of
the community’s sense of fair play but did not of itself exceed them, and allowed
the third trial to proceed. 71
46. Furthermore, fourth trials have been ordered in recent years in Canada, contrary to
the Quebec Court of Appeal’s assertion in that regard.
67
A.B.A., Tab 15, R. v. Badgerow, [2014] ONCA 272, paras. 89-92. Application for leave to
appeal completed on June 6, 2014 (File No.: 35929).
68
69
70
A.B.A., Tab 18 See the decision of the trial court in that case: R. v. Keyowski, [1986] SJ
No. 319 (Sask Q.B.), at p. 4.
71
A.B.A., Tab 17, Keyowski, supra, page 660.
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47. Recently, in R. v. Badgerow, the Ontario Court of Appeal ordered a fourth trial on a
charge of first degree murder, 33 years after the alleged facts. A conviction
following a first trial had been overturned and a new trial ordered. The second and
third trials ended in mistrials as the jury was twice unable to reach a verdict. The
Ontario Court of Appeal set aside a stay of proceedings ordered by the application
judge, and allowed the prosecution to proceed with a fourth trial, in part in light of
evidence that had been excluded and had not been heard by the jury in the first
three trials. 72
48. In R. v. R.T.A., the Ontario Court of Appeal ordered a fourth trial on charges of
assault causing bodily harm, forcible confinement, assault with a weapon,
possession of a weapon dangerous to the public peace and two counts of
threatening death. The first two trials aborted for reasons which were not apparent
on the record before the Court of Appeal. The third trial resulted in an acquittal
which was overturned because evidence had been improperly excluded by the trial
judge. The Court of Appeal rejected the defence’s claim that ordering a fourth trial
in the circumstance would be an abuse of process. 73
49. In R. v. Vanezis, the Ontario Court of Appeal ordered a fourth trial in a murder
case. At the defendant’s, first trial, the jury could not agree and a mistrial was
declared. At his second and third trials, he was found guilty but the convictions
were reversed on appeal. A fourth trial was ordered despite the fact that the
accused had spent 10 years in custody. The Court rejected the defence’s claim
74
that a fourth trial should not be allowed to proceed.
72
A.B.A., Tab 15, Badgerow, supra, see paras. 202-204.
73
A.B.A., Tab 20, R. v. R.T.A., [2002] O.J. No. 443 (Ont. C.A.), leave to appeal dismissed:
[2002] S.C.C.A. No. 402 (File No.: 29162). See in particular, paragraphs 25-35.
74
A.B.A., Tab 21, R. v. Vanezis, [2006] O.J. No. 4515 (Ont. C.A.), see paras. 62-67. Note
that the remedy sought by the defence in relation to the multiplicity of trials in this case
was an acquittal rather than a stay of proceedings based on abuse of process.
- 22 -
50. Thus, even if this had been a domestic case tried in Canada, it is far from clear
that the situation would have warranted a stay of proceedings, even if there had
been no new evidence as the Court of appeal questionably found. 75
51. The Court was also wrong in concluding that a fourth trial in the absence of new
evidence would necessarily amount to an abuse of process in the jurisdiction of
the extradition partner. 76
D. Multiple trials in the United States
52. In his decision, the Minister referred to information sought from the US authorities
on the legal regime applicable to holding a fourth trial in their jurisdiction. The
US authorities advised the Minister that in the State of New Hampshire, as in
Canada, a defendant may be retried on the same charges if the jury cannot reach
a unanimous verdict. The Fifth Amendment to the United States Constitution, 77
and Part 1, Article 16, of the New Hampshire Constitution protect a criminal
defendant against double jeopardy, but a deadlocked jury does not in itself bar the
Respondent’s retrial because jeopardy is deemed not to have ended. 78 The entry
of the nolle prosequi does not as such bar the State of New Hampshire from
proceeding again with prosecuting the charges, and there is no statute of
limitations for the offence of murder. It however remains open for the accused
under U.S. jurisprudence to argue that the multiplicity of trials in the particular facts
75
See also section E below: “The new evidence”.
76
77
A.B.A., Tab 42, The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution, which applies to the State of New Hampshire through the Due Process
Clause of the Fourteenth Amendment (Benton v. Maryland, 395 U.S. 784 (1969))
provides, “nor shall any person be subject for the same offence to be twice put in jeopardy
of life or limb”.
78
A.B.A., Tab 22, Richardson v. United States, 468 U.S. 317, 323-324 (1984) (S. Ct.);
A.B.A., Tab 37, Yeager v. United States, 557 U.S. 110 (2009) (S. Ct), pp. 13, 19-20.
- 23 -
of his case amounts to a violation of due process and to have the proceedings
stayed before trial.
53. As in Canada, there is no mathematical formula under the U.S. case law to have
the proceedings stayed in this type of scenario. A balancing exercise is to be
undertaken taking into account all the circumstances of the case in order to
determine whether a new trial is allowed to go forward after previous inconclusive
trials. The threshold for staying the proceedings, like in Canada, is fairly high.
While new evidence increases the legitimacy of a new trial, absence of new
evidence is not necessarily fatal for the prosecuting authorities.
54. In State of Ohio v. Roper, the Court of Appeals of Ohio, Ninth Appellate District,
ruled that it was acceptable to hold a fourth trial on charges of aggravated murder
and aggravated robbery, following three previous hung juries. 79 Concluding that
there was no violation of due process and fundamental fairness in that case, the
Court noted that, “The question of whether due process has been breached by any
number of retrials does not rest solely on a mechanical application involving the
number of mistrials that have occurred.” 80 Rather, the Court reviewed U.S.
appellate jurisprudence considering a number of factors in balancing the interest of
the public and the fundamental fairness owed to the accused:
The Hawaii Supreme Court listed the following factors to be

considered in reaching such a decision: “1) the severity of the
offense charged; 2) the number of prior mistrials and the
circumstances of the jury deliberation therein, so far as is
known; 3) the character of prior trials in terms of length,
complexity and similarity of evidence presented; 4) the
likelihood of any substantial difference in a subsequent trial, if
allowed; 5) the trial court's own evaluation of the relative case
strength; and 6) the professional conduct and diligence of
79
A.B.A., Tab 25, State of Ohio v. Roper, 2002 Ohio App. LEXIS 7191.
80
Ibid., At para. 76.
- 24 -
respective counsel, particularly that of the prosecuting attorney.”

Moriwake, 65 Hawaii at 56.
Similar factors were suggested by the Iowa Court of Appeals as

follows: “(1) weight of the evidence of guilt or innocence; (2)
nature of the crime involved; (3) whether defendant is or has
been incarcerated awaiting trial; (4) whether defendant has
been sentenced in a related or similar case; (5) length of such
incarceration; (6) possibility of harassment; (7) likelihood of new
or additional evidence at trial; (8) effect on the protection to
society in case the defendant should actually be guilty; (9)
probability of greater incarceration upon conviction of another
offense; (10) defendant's prior record; (11) the purpose and
effect of further punishment; and (12) any prejudice resulting to
defendant by the passage of time." State v. Lundeen (Iowa
App.1980), 297 N.W.2d 232, 236. See, also, Abbati, 99 N.J. at
435.
Both sets of factors include a consideration of the likelihood of

new or additional evidence at another trial. Indeed, several
courts have dismissed proceedings following hung jury mistrials
where it appeared that the same evidence would be presented
and another hung jury was likely. In State v. Witt (Tenn.1978),
572 S.W.2d 913, 917, the court found the case was properly
dismissed following three mistrials for deadlocked juries where
“it [appeared] that at future trials substantially the same
evidence will be presented and that the probability of hung
juries is great.” The Moriwake court similarly found that the case
was properly dismissed by the trial judge after two mistrials due
to hung juries where the same evidence was expected in any
future trial. Moriwake, 65 Hawaii at 49-50. The Ingram court
also approved dismissal of an indictment following two hung
jury mistrials where no new evidence was anticipated. Ingram,
412 F. Supp. at 385. Significantly, the case at bar presents a
situation where new evidence was anticipated, and was, in fact,
presented in the proceeding following the motion to dismiss. 81
55. In State of Alabama v. Anderson, the Court of Criminal Appeals of Alabama

allowed a fourth trial for the same offence – the murder of a uniformed police
officer in the performance of his duty – where three prior trials had ended in
81
Ibid., At paras. 85-87.
- 25 -
properly declared mistrials due to hung juries, even where the record contained no
indication that the state intended to present any new evidence at a fourth trial. 82
The Court balanced the interest of the state against fundamental fairness to the
accused and rejected the argument that a fourth trial violated the Due Process
Clause, weighing such factors as (1) the severity of the offence charged; (2) the
number of prior mistrials and the circumstances of the jury deliberation therein, so
far as is known; (3) the character of prior trials in terms of length, complexity and
similarity of evidence presented; (4) the likelihood of any substantial difference in a
subsequent trial, if allowed; (5) the trial Court’s own evaluation of relative case
strength; and (6) the professional conduct and diligence of respective counsel,
particularly that of the prosecuting attorney.
56. In United States v. Castellanos, the United States Court of Appeals for the Second
Circuit allowed an appeal from an indictment which had been dismissed on double
jeopardy grounds following two previous hung juries. 83 The Court reasoned that
limiting the government to “two bites at the apple,”... “is the kind of ‘mechanical
application of an abstract formula’ that the cases condemn.” 84 The Court made
reference to its decision in Persico, where it upheld a fifth trial of several accused
following two appellate reversals and two mistrials. 85
57. In State of Tennessee v. Folk, the Supreme Court of Tennessee affirmed the
decision of the trial judge who had not allowed a fourth trial for murder in the first
degree to proceed after three mistrials had been declared because of deadlocked
juries. The Court found that “trial judges have the inherent authority to terminate a
82
A.B.A., Tab 23, State of Alabama v. Anderson, 457 So. 2d 435 (1984) (Ala. Crim. App.),
p. 6.
83
A.B.A., Tab 36, United States v. Castellanos, 478 F.2d 749 (1973) (U.S. App.). The Court
of Appeals for the Second Circuit has cited Castellanos with approval as recently as 2011:
A.B.A., Tab 31, United States v. Jackson, 658 F.3d 145 (2011) at p. 153.
84
A.B.A., Tab 36, At p. 752.
85
Ibid., At p. 753, footnote 4. United States v. Persico, 425 F.2d 1375 (2d Cir.), cert. denied,
400 U.S. 869.
- 26 -
prosecution in the exercise of a sound judicial discretion, where, as here, repeated

trials, free of prejudicial error, have resulted in genuinely deadlocked juries and
where it appears that at future trials substantially the same evidence will be
presented and that the probability of continued hung juries is great.” 86
58. In State of North Carolina v. Williams, the Court of Appeals of North Carolina
allowed a fourth trial to proceed on two counts of misdemeanor larceny, following
three previous mistrials, one due to juror misconduct and the two others due to
hung juries. 87 The defence’s motion seeking to stay the proceedings because of
the multiplicity of trials was denied in the circumstances.
59. Given the principle of comity and its limited expertise in foreign law, the Quebec
Court of Appeal should not have usurped the functions of the trial judge in the
United States and, the constitutionality of submitting the Respondent to a fourth
trial ought to have been left to the U.S. Courts in application of U.S. law and in light
of the particular circumstances of the case.
E. The new evidence
60. The Minister noted that in the present case, the American authorities have certified
that new evidence is available for trial against the Respondent. The Minister noted
that the Respondent had not indicated why he did not believe this evidence to be
new. 88 The Minister emphasized in particular the testimonial evidence. 89 He noted
86
A.B.A., Tab 26, State of Tennessee v. Folk, 572 S.W.2d 913 (1978) (S. Ct. of Tennessee)
at p. 917.
87
A.B.A., Tab 24, State of North Carolina v. Williams, 277 S.E.2d 546 (1981) (N.C. App),
pp. 7-8.
88
A.R., page 7, Decision of the Minister, page 7.
89
- 27 -
that the Respondent would have the opportunity to challenge this evidence before
the U.S. Courts. 90
61. In holding that the additional testimonial evidence was not “true new evidence” the
Court of Appeal erred in several ways.
62. The Court of Appeal was wrong in determining that “nothing in the file indicates
that that information would not initially have been available from those same
witnesses”. From the record, it appears that the new information originates from
(1) a witness who came to the authorities after the nolle prosequi had been filed in
the Respondent’s case, (2) from other witnesses who were previously unwilling to
testify, and (3) from witnesses who are willing to testify in relation to facts which
were witnessed only in recent years.
63. In addition, the Respondent had been notified of the new evidence and did not
address in his submissions to the Minister why he did not consider this testimonial
evidence was new evidence. In light of the representations made by the
Respondent and the U.S. authorities, the Minister assumed this testimonial
evidence was new for the purpose of his analysis. The Court should have granted
deference to the Minister’s conclusion rather than second guess it in light of
arguments which were not before the Minister.
64. In any event, the Minister was right in concluding that determinations about this
evidence are ultimately to be left for the Courts in the foreign jurisdiction. It is up to
the foreign Courts to make determinations about the new evidence alleged by the
U.S. authorities in light of the standards applicable under American law, within the
balancing exercise aimed at determining whether a fourth trial would offend due
process under U.S. law. The Court of Appeal was not justified in excluding foreign-
90
- 28 -
gathered evidence tendered as part of extradition proceedings. Issues of

admissibility, much like trial fairness, are properly left to the trial Court in the
foreign state to decide in accordance with foreign law. 91
65. The exclusion of evidence by the Quebec Court of Appeal in this case provides a
stark illustration of the dangers posed by a Canadian Court that effectively
interferes with foreign proceedings. Not having at its disposal many of the facts
that will be available to the Court at the trial in the United States, it should not have
been open to the Court of Appeal to decide if the evidence was new evidence in
the context of a foreign trial.
66. The Court of Appeal’s conclusion regarding the DNA evidence in the file is further
illustration of the dangers of interfering with the foreign trial process. The Court of
Appeal dismissed all of the DNA evidence summarized in the certified record of
the case because, in its estimation, it “does not link” the Respondent to the crime.
Such a determination is ultimately for the trial Court in the foreign state. Although
the DNA results identified Mr. Caplin, the foreign Court may consider, in light of all
the circumstances, that it also further incriminates the Respondent. In that regard,
the foreign Court might consider as relevant that:
• The jeans jacket covered with one of the victim’s blood containing hairs
which were recently matched with Mr. Caplin’s DNA had been seized at the
Respondent’s residence. 92
• The DNA incriminating Mr. Caplin corroborates the Respondent’s confession

to the police that he and Mr. Caplin committed the murders together. 93
91
A.B.A., Tab 34, Allard, supra, page 571.
92
93
- 29 -
• Other physical evidence found (two blood-stained socks found at the crime
scene and two knives found in the back yard), is consistent with the theory
that two people committed these murders. 94
• Mr. Caplin’s involvement and his connection with the Respondent were also
the subject of many of the Respondent’s statements in 1988 and 2010, and
this new evidence could be used to further impeach the Respondent’s
credibility. 95
67. The Court of Appeal erred by considering that no new evidence against the
Respondent was being offered by the prosecuting authorities. This determination
is ultimately for the US Courts to make, in light of all the circumstances and in
application of the US legal rules. Moreover, even if there had been no new
evidence, the impact of this factor is properly left for the foreign Courts in their
determination of whether the proceedings should be stayed according the
applicable law of the foreign state. As noted above, the absence of new evidence
would not necessarily mean that the charges would be stayed.
F. The Minister’s decision is reasonable
68. Reasonableness is the appropriate standard of review for the Minister’s decision.
In Lake, this Court stated:
[34] This Court has repeatedly affirmed that deference is owed

to the Minister’s decision whether to order surrender once a
fugitive has been committed for extradition. … Reasonableness
is the appropriate standard of review for the Minister’s decision,
regardless of whether the fugitive argues that extradition would
infringe his or her rights under the Charter. As is evident from
94
95
See for instance A.R., pages 70-96, ROC, pages 6-32, paras. 20b)f)g), 25h)i)j), 27, 44i),
46d)f), 50.
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this Court’s jurisprudence, to ensure compliance with the

Charter in the extradition context, the Minister must balance
competing considerations, and where many such
considerations are concerned, the Minister has superior
expertise. The assertion that interference with the Minister’s
decision will be limited to exceptional cases of “real substance”
reflects the breadth of the Minister’s discretion; the decision
should not be interfered with unless it is unreasonable
(Schmidt) (for comments on the standards of correctness and
reasonableness, see Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190, 2008 SCC 9). 96
69. The customary deference to the Minister’s extradition decisions is rooted in the
recognition of Canada’s strong interest in international law enforcement
activities. 97 It is generally for the Minister, not the Court, to assess the weight of
competing considerations in extradition policy. 98
70. It is generally accepted that the Minister must have a wide measure of
appreciation of what circumstances are “unjust or oppressive” and that the person
sought bears the burden of demonstrating that such circumstances exist. 99 The
result of the Minister’s balancing under section 44(1)a) and 7 of the Charter to
determine whether extradition in the circumstances would “shock the conscience”
is owed deference.
71. The Minister noted in his decision that in Canada, referring to Keyowski, multiple
trials after previous juries were unable to reach a verdict are not necessarily illegal,
even in circumstances where no new evidence is to be tendered. In fact, fourth
trials have been ordered in recent years in Canada and are not necessarily an
96
A.B.A., Tab 10, Lake, supra, para. 34.
97
A.B.A., Tab 30, Cotroni, supra, at p. 1485, cited by McLachlin J. in Kindler, at pages 843-
44; A.B.A., Tab 11, Libman v. The Queen, [1985] 2 S.C.R. 178, at p. 214; A.B.A., Tab 8,
Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631 at p. 662.
98
99
A.B.A., Tab 2, Fischbacher, supra, para. 37; A.B.A., Tab 10, Lake, supra, paras. 38-39;
A.B.A., Tab 12, Németh v. Canada (Justice), [2010] 3 S.C.R. 281, para. 72.
- 31 -
abuse of process. The outcome depends on a balancing exercise. The foregoing

analysis shows that even if the proceedings were to occur in Canada, the present
case would likely not amount to an abuse of process. This renders even more
inappropriate the Court of Appeal’s interference with the decision of the Minister
and ultimately with the jurisdiction of the Court in the foreign state.
72. As the Minister noted, in the present case the United States has mechanisms to
address the constitutionality of submitting an accused to a fourth trial after juries
were unable to reach a verdict in previous trials, including delays. In some cases
the trials have been stayed after multiple previous trials were inconclusive, while in
other cases the proceedings were allowed to continue. The result depends on the
balancing of the circumstances of the case.
73. The Respondent will thus have the opportunity to make arguments before the US
Courts to seek a stay of the proceeding before trial. With regards to extradition to
the United States, which has a judicial system that is similar to our own, this Court
has held as highly relevant the fact that a person sought will have the benefit of
comparable protection before the American Courts. 100 This alone is sufficient to
conclude that the Respondent’s extradition does not "shock the conscience", and
to defer to the foreign Courts to assess the Respondent's arguments on this issue.
74. In his decision, the Minister summarized the extensive original evidence on file
supporting the indictment of the Respondent for first and second degree murder of
the two victims. The Minister also referred to the new evidence announced by the
U.S. authorities against the Respondent, whose admissibility, relevance and
weight is ultimately to be decided by the U.S. Courts in light of all the
circumstances and in accordance with U.S. law.
100
A.B.A., Tab 4, Schmidt, supra, p. 529; A.B.A., Tab 32, United States of America v.
Jamieson, [1996] 1 SCR 465, confirming United States of America v. Jamieson (1994), 93
C.C.C. (3d) 265 (Que. C.A.), para. 87.
- 32 -
75. The reviewing Court’s role is not to re-assess the relevant factors and substitute its
own view. Rather, the Court must determine whether the Minister’s decision that
extradition would not “shock the conscience” in the circumstances falls within a
range of reasonable outcomes.
76. Contrary to the view expressed by this Court in Lake, the Quebec Court of Appeal
did not consider if the Minister had appreciated the relevant facts and applied the
correct legal principles. Rather, the Court of Appeal substituted its own view for
that of the Minister and considered what it held to be the fairness of a fourth trial in
the requesting state. The Court of Appeal arrived at a conclusion of “exceptional
circumstances” amounting to a breach of fundamental justice by making legal
determinations and ultimate findings of fact which should have been properly left
for the Court in the foreign jurisdiction.
77. The Minister’s decision to order the surrender of the Respondent for a fourth trial in
the United States is reasonable. It neither shocks the conscience nor creates a
situation that is simply unacceptable for the Respondent. It falls within a range of
reasonable outcomes. The Court of Appeal therefore improperly quashed the
surrender order and its decision must be reversed.
----------
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Appellant’s Memorandum of Argument Order Sought Concerning Costs
PART IV – ORDER SOUGHT CONCERNING COSTS
78. The Appellant makes no submission in relation to costs.
----------
- 34 -
Appellant’s Memorandum of Argument Order Sought
PART V – ORDER SOUGHT
79. The Appellant seeks an order setting aside the order of the Court of Appeal of
Quebec, and reinstating the order surrendering the Respondent to the United
States of America to face prosecution on one count of first degree murder in
connection with the death of Charlene Ranstrom by acting together as an
accomplice to another, in violation of New Hampshire Revised Statutes Annotated,
sections 626:8 and 630:1-a, I(a), one count of first degree murder in connection
with the death of Brenda Warner by acting together as an accomplice to another,
in violation of New Hampshire Revised Statutes Annotated, sections 626:8 and
630:1-a, I(a), one count of second degree murder in connection with the death of
Charlene Ranstrom by acting together as an accomplice to another, in violation of
New Hampshire Revised Statutes Annotated, sections 626:8 and 630:1-b, I(b),
and one count of second degree murder in connection with the death of Brenda
Warner by acting together as an accomplice to another, in violation of New
Hampshire Revised Statutes Annotated, sections 626:8 and 630:1-b, I(b), as set
out in the arrest warrants issued on April 8, 2011, and May 13, 2011, by the
Nashua District Court, Hillsborough County, New Hampshire.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Dated at Montreal this 29th day of August, 2014
________________________________ _________________________________
Me Ginette Gobeil Me Marc Ribeiro
Department of Justice Canada Department of Justice Canada
Counsel for Appellant Counsel for Appellant
- 35 -
Appellant’s Memorandum of Argument Alphabetical Table of Authorities
PART VI – ALPHABETICAL TABLE OF AUTHORITIES
Caselaw Paragraph(s)
Argentina v. Mellino, [1987] 1 S.C.R. 536 ............................... 26,28,31
Canada (Justice) v. Fischbacher, [2009] 3 S.C.R. 170 ............................... 26,36,70
Canada (Minister of Justice) v. Pacificador (2002), 60

O.R. (3d) 685 (C.A.) ......................................... 33
Canada v. Schmidt, [1987] 1 S.C.R. 500 ................ 26,27,28,31,33,73
Case of Othman (Abu Qatada) v. The United

Kingdom, Application No. 8139/09 (Judgment of 17
January 2012) (European Court of Human Rights) ......................................... 35
China v. Wong, 2009 ONCA 148 ......................................... 28
Hanson v. Canada (Minister of Justice), 2005 BCCA

77 ......................................... 28
Idziak v. Canada (Minister of Justice), [1992] 3

S.C.R. 631 ......................................... 69
Kindler v. Canada (Minister of Justice), [1991] 2

S.C.R. 779 ..................... 26,27,33,36,69
Lake v. Canada (Minister of Justice), [2008] 1 S.C.R.

761 .......................... 36,37,68,70
Libman v. The Queen, [1985] 2 S.C.R. 178 ......................................... 69
Németh v. Canada (Justice), [2010] 3 S.C.R. 281 ......................................... 70
R. v. B.W.W., [1999] N.W.T.J. No. 42 (NTSC) ......................................... 42
R. v. Babos, [2014] 1 S.C.R. 309 ............................... 41,42,44
R. v. Badgerow, 2014 ONCA 272 .................................... 43,47
R. v. Hape, [2007] 2 S.C.R. 292 ......................................... 26
R. v. Keyowski, [1988] 1 S.C.R. 657 .......................... 17,41,43,71

- 36 -
Caselaw (cont’d) Paragraph(s)
R. v. Keyowski, [1986] S.J. No. 319 (Sask Q.B.) ......................................... 45
R. v. Nicholson, 2003 ABCA 283 ......................................... 42
R. v. R.T.A., [2002] O.J. No. 443 (Ont. C.A.) ......................................... 48
R. v. Vanezis, [2006] O.J. No. 4515 (Ont. C.A.) ......................................... 49
Richardson v. United States, 468 U. S. 317 (1984)

(S. Ct) ......................................... 52
State of Alabama v. Anderson, 457 So. 2d 435

(1984) (Ala. Crim. App.) ......................................... 55
State of North Carolina v. Williams, 277 S.E.2d 546

(1981) (N.C. App.) ......................................... 58
State of Ohio v. Roper, 2002 Ohio App. LEXIS 7191 ......................................... 54
State of Tennessee v. Folk, 572 S.W.2d 913 (1978)

(S. Ct. of Tennessee) ......................................... 57
Suresh v. Canada (Minister of Citizenship and

Immigration), [2002] 1 S.C.R. 3 ......................................... 33
Turchin v. United States of America, 2007 QCCA 136 ......................................... 28
United States of America v. Anekwu, [2009] 3 S.C.R.

3 ......................................... 36
United States of America v. Cotroni, [1989] 1 S.C.R.

1469 .................................... 28,69
United States of America v. Jackson, 658 F.3d 145

(2011) (U.S. App.) ......................................... 56
United States of America v. Jamieson, [1996] 1

S.C.R. 465; (1994), 93 C.C.C. (3d) 265 (Que. C.A.) ......................................... 73
United States of America v. Wacjman, [2002]

Q.J. No. 5094 (Que. C.A.) ......................................... 28
United States v. Allard, [1987] 1 S.C.R. 564 .......................... 26,28,29,64

- 37 -
Caselaw (cont’d) Paragraph(s)
United States v. Burns, [2001] 1 S.C.R. 283 ................ 27,33,35,36,37,69
United States v. Castellanos, 478 F.2d 749 (1973)

(U.S. App.) ......................................... 56
United States v. Persico, 425 F.2d 1375 (2d Cir.),

cert. denied, 400 U.S. 869 ......................................... 56
Yeager v. United States, 557 U.S. 110 (2009) (S. Ct.) ......................................... 52
Other Sources
European Convention on Human Rights, 213

U.N.T.S. 221 .................................... 35,40
International Covenant on Civil and Political Rights,

999 U.N.T.S. 171 ......................................... 40
UN Model Treaty on Extradition, U.N. Doc.

A/RES/45/116, December 14, 1990 ......................................... 40
Universal Declaration of Human Rights, G.A. Res.

217 A (III), U.N. Doc. A/810, at 71 (1948) ......................................... 40
Bill of Rights and Later Amendments – Constitution of

the United States of America ......................................... 52
PART VII
SATUTES & REGULATIONS
- 38 -
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (Extracts)
1+1 Ciovemment Gouvernement

of Canada dts Canada Canada
Justice Laws Website
Home 1 Laws Website Home 1 Constitutional Documents 1 Constitution Acts, 1867 to 1982 Table of Contents
1 Constitution Acts, 1867 to 1982
CONSTITUTION ACT, 1982 @ill

PARTI
CANADIAN CHARTER OF RIGHTS AND FREEDOMS
Whereas Canada is founded upon principles that recognlze the supremacy of God and the rule
of law:
GUARANTEE OF RIGHTS AND FREEDOMS
Rights and freedoms in Canada
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in
it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratie society.
FUNDAMENTALFREEDOMS
Fundamental freedoms
2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and
other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
DEMOCRATIC RIGHTS
Democratie rights of citizens
3. Every citizen of Canada has the right to vote in an election of members of the House of
Commons or of a legislative assembly and to be qualified for membership therein.
Maximum dura !ion of legislative bodies
4. (1) No House of Commons and no legislative assembly shall continue for longer than five
years from the date fixed for the return of the writs at a general election of its members . .ffil.}.
Continuation in special circumstances
(2) In tlme of real or apprehended war, invasion or insurrection, a House of Commons may be
continued by Parliament and a legislative assembly may be continued by the legislature beyond
flve years if such continuation is not opposed by the votes of more than one-third of the members
of the House of Commons or the legislative assembly, as the case may be.
Annual sitting of legislative bodies
s. There shall be a sitting of Parliament and of each legislature at least once every twelve
months . .(@
- 39 -
MOBILITY RIGHTS
Mobility of citizens
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
Rights to move and gain livelihood
(2) Every citizen of Canada and every person who has the status of a permanent resident of
. Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
Limitation
(3) The rights specified in subsection (2) are subject to

(a) any laws or practices of general application in force in a province other than those that
discriminate among persons primarily on the basis of province of present or previous residence;
and
(b) any laws providing for reasonable residency requirements as a qualification for the receipt
of publicly provided social services.
Affirmative action programs
(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object
the amelioration in a province of conditions of individuals in that province who are socially or
economically disadvantaged if the rate of employment in that province is below the rate of
employment in Canada.
LEGAL RIGHTS
Life, liberty and security of persan
7. Everyone has the right to life, liberty and security of the persan and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.
Search or seizure
8. Everyone has the right to be secure against unreasonable search or seizure.

Detention or imprisonment
9. Everyone has the right not to be arbitrarily detained or imprisoned.

Arrest or detention
10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be
released if the detention is not lawful.
Proceedings in criminal and penal matters
11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specifie offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that persan in respect of the
offence;
- 40 -
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by
an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the
.benefit of trial by jury where the maximum punishment for the offence ls imprisonment for five
years or a more severe punlshment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or
omission, it constituted an offence under Canadian or international law or was criminal
according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and
punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between
the time of commission and the time of sentencing, to the benefit of the fesser punishment.
Treatment or punishment
12. Everyone has the right not to be subjected to any cruel and unusual treatment or
punishment.
Self-crimination
13. A witness who testifies in any proceedings has the right not to have any incriminating
evidence so given used to incrlminate that witness in any other proceedlngs, except ln a
prosecution for perjury or for the givlng of contradictory evidence.
Interpreter
14. A party or witness in any proceedings who does not understand or speak the language in
which the proceedings are conducted or who is deaf has the right to the assistance of an
interpreter.
EQUALITY RIGHTS
Equality before and under law and equal protection and benefit of law
15. (1) Every individual is equal before and under the law and has the right to the equal
protection and equal beneflt of the law without discrimination and, in particular, without
discrimination based on race, national or ethnie origin, colour, religion, sex, age or mental or
physlcal disabllity.
Affirmative action programs
(2) Subsectlon (1) does not preclude any law, program or actlvity that has as its abject the
amelioration of conditions of disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnie origin, colour, religion, sex, age or mental or
physical disability . .@±).
OFFICIAL LANGUAGES OF CANADA
Official languages of Canada
16. (1) English and French are the official languages of Canada and have equality of status and
equal rights and privileges asto their use in ali institutions of the Parliament and government of
Canada.
Official languages of New Brunswick
(2) English and French are the official languages of New Brunswick and have equality of status
and equal rights.and privileges asto their use ln ali institutions of the legislature and government
of New Brunswick.
- 41 -
Charte canadienne des droits et libertés, partie I de la Loi constitutionnelle de
1982 édictée comme l’annexe B de la Loi de 1982 sur le Canada, 1982, ch. 11
(R.-U.) (extraits)
1+1 Gouvernemant Govemment

du 0 anada of Canada Canada
Site Web de la législation (Justice)
Accueil 1 Site Web de la législation accueil 1 Textes constitutionnels
1 Lois constitutionnelles de 1867 à 1982- Table des matières 1 Lois constitutionnelles de 1867 à 1982
LOI CONSTITUTIONNELLE DE 1982 mQl

PARTIE 1
CHARTE CANADIENNE DES DROITS ET LIBERTÉS
Attendu que le Canada est fondé sur des principes qui reconnaissent la suprématie de Dieu et
la primauté du droit :
GARANTIE DES DROITS ET LIBERTÉS
Droits et libertés au Canada
1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés.
Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables
et dont la justification puisse se démontrer dans le cadre d'une société libre et démocratique.
LIBERTÉS FONDAMENTALES
Libertés fondamentales
2. Chacun a les libertés fondamentales suivantes :

a) liberté de conscience et de religion;
b) liberté de pensée, de croyance, d'opinion et d'expression, y compris la liberté de la presse et
des autres moyens de communication;
c) liberté de réunion pacifique;
d) liberté d'association.
DROITS DÉMOCRATIQUES
Droits démocratîques des citoyens
3. Tout citoyen canadien a le droit de vote et est éligible aux élections législatives fédérales ou
provinciales.
Mandat maximal des assemblées
4. (1) Le mandat maximal de la Chambre des communes et des assemblées législatives est de
cinq ans à compter de la date fixée pour le retour des brefs relatifs aux élections générales
correspondantes. ill1}
Prolongations spéciales
(2) Le mandat de la Chambre des communes ou celui d'une assemblée législative peut être
prolongé respectivement par le Parlement ou par la législature en question au-delà de cinq ans en
cas de guerre, d'invasion ou d'insurrection, réelles ou appréhendées, pourvu que cette
prolongation ne fasse pas l'objet d'une opposition exprimée par les voix de plus du tiers des
députés de la Chambre des communes ou de l'assemblée législative . .ffi.2.l
Séance annuelle
- 42 -
(R.-U.) (extraits)
s. Le Parlement et les législatures tiennent une séance au moins une fois tous les douze mols.
[ill
LIBERTË DE CIRCULATION ET D'ËTABLISSEMENT
Liberté de circulation
6. (1) Tout citoyen canadien a le droit de demeurer au Canada, d'y entrer ou d'en sortir.
Liberté d'établissement
(2) Tout citoyen canadien et toute personne ayant le statut de résident permanent au Canada
ont le droit :
a) de se déplacer dans tout le pays et d'établir leur résidence dans toute province;
b) de gagner leur vie dans toute province.
Restriction
(3) Les droits mentionnés au paragraphe (2) sont subordonnés :

a) aux lois et usages d'application générale en vigueur dans une province donnée, s'ils
n'établissent entre les personnes aucune distinction fondée principalement sur la province de
résidence antérieure ou actuelle;
b) aux lois prévoyant de justes conditions de résidence en vue de l'obtention des services
sociaux publics.
Programmes de promotion sociale
( 4) Les paragraphes (2) et (3) n'ont pas pour objet d'interdire les lois 1 programmes ou activités
destinés à améliorer, dans une province 1 la situation d 1individus défavorisés socialement ou
économiquement, si le taux d'emploi dans la province est inférieur à la moyenne nationale ..
GARANTIES JURIDIQUES
Vie, liberté et sécurité
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté

atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
Fouilles, perquisitions ou saisies
s. Chacun a droit à la protection contre les fouilles, les perquisitions ou les saisies abusives.
Détention ou emprisonnement
9. Chacun a droit à la protection contre la détention ou l'emprisonnement arbitraires.

Arrestation ou détention
10. Chacun a le droit, en cas d'arrestation ou de détention :

a) d'être informé dans les plus brefs délais des motifs de son arrestation ou de sa détention;
b) d'avoir recours sans délai à l'assistance d'un avocat et d,être informé de ce droit;
c) de faire contrôler1 par habeas corpus1 la légalité de sa détention et d'obtenir, le cas échéant,
sa libération.
Affaires criminelles et pénales
11. Tout Inculpé a le droit :

a) d,être informé sans délai anormal de !,infraction précise qu'on lui reproche;
b) d'être jugé dans un délai raisonnable;
- 43 -
(R.-U.) (extraits)
c) de ne pas être contraint de témoigner contre lui-même dans toute poursuite intentée contre
lui pour l'infraction qu'on lui reproche;
d) d'être présumé innocent tant qu'il n/est pas déclaré coupable, conformément à la loi, par un
tribunal indépendant et impartial à l'issue d'un procès public et équitable;
e) de ne pas être privé sans juste cause d1 une mise en liberté assortie d'un cautionnement
raisonnable;
f) sauf s'il s'agit d'une infraction relevant de la justice militaire, de bénéficier d'un procès avec
jury lorsque la peine maximale prévue pour l'infraction dont il est accusé est un
emprisonnement de cinq ans ou une peine plus grave;
g) de ne pas être déclaré coupable en raison d'une action ou d'une omission qui 1 au moment où
elle est survenue, ne constituait pas une infraction d 1après le droit Interne du Canada ou le droit
International et n'avait pas de caractère criminel d'après les principes généraux de droit
reconnus par l'ensemble des nations;
h) d 1une part de ne pas être jugé de nouveau pour une infraction dont il a été définitivement
acquitté, d'autre part de ne pas être jugé ni puni de nouveau pour une infraction dont il a été
définitivement déclaré coupable et puni;
i) de bénéficier de la peine la moins sévère 1 lorsque la peine qui sanctionne l'infraction dont il
est déclaré coupable est modifiée entre le moment de la perpétration de 11infraction et celui de
la sentence.
Cruauté
12. Chacun a droit à la protection contre tous traitements ou peines cruels et inusités.
Témoignage incriminant
13. Chacun a droit à ce qu/aucun témoignage incriminant qu il donne ne soit utilisé pour
1
l'incriminer dans d 1autres procédures/ sauf lors de poursuites pour parjure ou pour témoignages
contradictoires.
Interprète
14. La partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu'ils ne
comprennent pas ou ne parlent pas la langue employée, soit parce qu'ils sont atteints de surdité,
ont droit à l'assistance d'un interprète.
DROITS A L'ÉGALITÉ
Égalité devant la loi, égalité de bénéfice et protection égale de la loi
15. (1) La loi ne fait acception de personne et s'applique également à tous 1 et tous ont droit à
la même protection et au même bénéfice de la loi, indépendamment de toute discrimination/
notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur1 la
religion, le sexe, 11âge ou les déficiences mentales ou physiques.
Programmes de promotion sociale
(2) Le paragraphe (1) n/a pas pour effet d'interdire les lois, programmes ou activités destinés à
améliorer la situation d 1individus ou de groupes défavorisés1 notamment du fait de leur race, de
leur origine nationale ou ethnique 1 de leur couleur, de leur religion, de leur sexe, de leur âge ou de
leurs déficiences mentales ou physiques. (84)
LANGUES OFFICIELLES DU CANADA
Langues officielles du Canada
16. (1) Le français et l'anglais sont les langues officielles du Canada; ils ont un statut et des
droits et privilèges égaux quant à leur usage dans les institutions du Parlement et du
gouvernement du Canada.
- 44 -
Extradition Act, S.C. 1999, c. 18 (Extratcts)
CANADA
CONSOLIDATION CODIFICATION
Extradition Act Loi sur l'extradition
s.e. 1999, c. 18 L.C. 1999, ch. 18
Current to August 5, 2014 À jour au 5 août 2014
Last amended on July 19, 2005 Dernière modification le 19 juillet 2005
Published by the Minister ofJustice at the following address: Publié par le ministre de la Justice à l'adresse suivante :
http://laws-lois.justice.gc.ca http://lois-lawsJustice.gc.ca
- 45 -
OFFICIAL STATUS CARACTÈRE OFFICIEL

OF CONSOLIDATIONS DES CODIFICATIONS
Subsections 31 (1) and (2) of the Legislation Les paragraphes 31 (1) et (2) de la Loi sur la
Revision and Consolidation Act, in force on révision et la codification des textes législatifs,
June 1, 2009, provide as follows: en vigueur le 1er juin 2009, prévoient ce qui
suit:
Published 31. (1) Every copy, of a consolidated statute or 31. {1) Tout exemplaire d'une loi codifiée ou d'un Codifications
consolidation is consolidated regulation published by the Minister règlement codifié, publié par le ministre en vertu de comme élément
evidence under this Act in either print or electronic fonn is ev- la présente loi sur support papier ou sur support élec- de preuve
idence of that statute or regulation and of its contents tronique, fait foi de cette loi ou de ce règlement et de
and every copy purporting to be published by the son contenu. Tout exemplaire donné comme publié
Minister is deemed to be so published, unless the par le ministre est réputé avoir été ainsi publié, sauf
contrary is shown. preuve contraire.
lnconsisteucies (2) In the event of an inconsistency between a (2} Les dispositions de la loi d'origine avec ses lucompatibilité
in Acts consolidated statute published by the Minister under modifications subséquentes par le greffier des Parle- -lois
this Act and the original statute or a subsequent ments en vertu de la Loi sur la publication des lois
amendment as certified by the Clerk of the Parlia- l'emportent sur les dispositions incompatibles de la
ments under the Publication ofStatutes Act, the orig- loi codifiée publiée par le ministre en vertu de la pré-
inal statute or amendment prevails to the extent of sente loi.
the inconsistency.
NOTE NOTE
This consolidation is current to August 5, 2014. The Cette codification est à jour au 5 août 2014. Les
last amendments came into force on July 19, 2005. dernières modifications sont entrées en vigueur
Any amendments that were not in force as of Au- le 19 juillet 2005. Toutes modifications qui n'étaient
gust 5, 2014 are set out at the end of this document pas en vigueur au 5 août 2014 sont énoncées à la fin
under the heading "Amendments Not in Force". de ce document sous le titre « Modifications non en
vigueur».
- 46 -
Extraditian~August 5, 2014
SUBMISSIONS OBSERVATIONS DE L'INTÉRESSÉ
Submissions 43. (1) The person may, at any time before 43. (1) L'intéressé peut, au plus tard trente Observations
the expiry of 30 days after the date of the com- jours après la délivrance d'une ordollllance
mittal, make submissions to the Minister in re- d'incarcération, présenter ses observations au
spect of any ground that would be relevant to ministre sur toute question touchant son extra~
the Minister in making a decision in respect of dition éventuelle vers le partenaire.
the surrender of the person.
Late acceptanee (2) The Minister may accept submissions (2) Le ministre peut toutefois, si à son avis Délai
of submissious supplémentaire
even after the expiry of those 30 days in cir- les circonstances le justifient, accepter les ob-
cumstances that the Minister eonsiders appro- servations après l'expiration du délai de trente
priate. jours.
REASONS l'OR REFUSAL MOTIFS DE REFUS
Wheu order not 44. (l) The Minister shall refuse to make a 44. (1) Le ministre refuse l'extradition s'il Motifs de reftts
to be made
surrender order if the Minis ter is satisfied that est convaincu que :
(a) the surrender would be unjust or oppres- a) soit l'extradition serait injuste ou tyran~
sive having regard to ali the relevant circum- nique compte tenu de toutes les circons-
stances; or tances;
(b) the request for extradition is made for b) soit la demande d'extradition est présen-
the purpose of prosecuting or punishing the tée dans le but de poursuivre ou de punir
person by reason of their race, religion, na- 1' intéressé pour des motifs fondés sur la race,
tionality, ethnie origin, language, colour, po- la nationalité, l'origine ethnique, la langue, la
litical opinion, sex, sexual orientation, age, couleur, la religion, les convictions poli-
mental or physical disability or status or that tiques, le sexe, l'orientation sexuelle, l'âge,
the person's position may be prejudiced for le handicap physique ou mental ou le statut
any ofthose reasons. de l'intéressé, ou il pourrait être porté at-
teinte à sa situation pour l'un de ces motifs.
Wben Minister (2) The Minister may refuse to make a sur- (2) Il peut refuser d'extrader s'il est Pouvoir de
may refuse lo refuser
makeorder
render order if the Minister is satisfied that the convaincu que les actes à l'origine de la de-
conduct in respect of which the request for ex- mande d'extradition sont sanctionnés par la
tradition is made is punishable by deatll under peine capitale en vertu du droit applicable par
the laws that apply to the extradition partner. le partenaire.
Refiisal in 45. (1) The reasons for the refusai of sur- 45. (1) Les motifs de refus prévus à l'ac~ Primauté des
extradition accords
agreement
render contained in a relevant extradition cm·d applicable - sauf à un accord multilatéral
agreement, other than a multilateral extradition -l'emportent sur ceux prévus aux articles 46
agreement, or the absence of reasons for refusai et 47 et l'absence de tels motifs également.
in such an agreement, prevail over sections 46
and47.
Exception- (2) The reasons for the refusai of surrender (2) Ceux prévus dans un accord multilatéral Accord
multilateral multilatéral
extradition
contained in a relevant multilateral extradition l'empmtent sur les dispositions incompatibles
agreement agreement prevail over sections 46 and 47 only des articles 46 et 47.
to the extent of any inconsistency between ei-
ther ofthose sections and those provisions.
When arder not 46. (l) The Minister shall refuse to make a 46. (1) Le ministre refuse l'extradition s'il Refus
to be made obligatoire dans
surrender order if the Minister is satisfied that est convaincu que: certains cas
(a) the prosecution of a person is bm-red by a) toute poursuite à l'endroit de l'intéressé
prescription or limitation under the law that est prescrite en ve1tu du droit du paltenaire;
aP,plies to the extradition partner;
18

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File No.

SUPREME COURT OF CANADA

THE ATTORNEY GENERAL OF CANADA

APPELLANT’S MEMORANDUM OF ARGUMENT

Me Ginette Gobeil Me Robert J. Frater

Tel.: 514 496-8115 (Me Gobeil) Tel.: 613 670-6289

Counsel for Appellant Agent for Appellant

Henri A. Lafortune Inc. 2005 Limoges Street

Me Clemente Monterosso Me Richard Gaudreau

Tel.: 514 948-2006 Tel.: 819 770-7928

Counsel for Respondent Agent for Respondent

APPELLANT’S MEMORANDUM OF ARGUMENT

PART I – STATEMENT OF FACTS .........................................1

B. The US evidence and procedural history .........................................2

C. The decision of the Minister .........................................7

D. Decision of the Quebec Court of Appeal ....................................... 10

PART II – ISSUE ....................................... 12

PART III – STATEMENT OF ARGUMENT ....................................... 13

A. The principle of comity: deference for the

B. The “shock the conscience” threshold ....................................... 15

C. Multiple trials in Canada ....................................... 18

D. Multiple trials in the United States ....................................... 22

E. The new evidence ....................................... 26

F. The Minister’s decision is reasonable ....................................... 29

PART IV – ORDER SOUGHT CONCERNING COSTS ....................................... 33

PART V – ORDER SOUGHT ....................................... 34

PART VI – ALPHABETICAL TABLE OF AUTHORITIES ....................................... 35

PART VII – STATUTES, REGULATIONS, RULES

Canadian Charter of Rights and Freedoms, Part I of the

Extradition Act, S.C. 1999, c. 18 ....................................... 44

Appellant’s Memorandum of Argument Statement of Facts

APPELLANT’S MEMORANDUM OF ARGUMENT

PART I – STATEMENT OF FACTS

2. The Quebec Court of Appeal confirmed the Minister’s decision to surrender

Appellant’s Memorandum of Argument Statement of Facts

the process he will face in the requesting state, it is only in exceptional

B. The US evidence and procedural history

Appellant’s Memorandum of Argument Statement of Facts

Appellant’s Memorandum of Argument Statement of Facts

Appellant’s Memorandum of Argument Statement of Facts

• Corrections Officer Duane Baron is expected to testify that while incarcerated

Appellant’s Memorandum of Argument Statement of Facts

• Melissa Metallic is expected to testify that a week or two prior to the

• Detective Bourgeois of the Nashua Police spoke with the Respondent in

Appellant’s Memorandum of Argument Statement of Facts

• Pubic hairs found in various locations in the victims’ apartment including on

C. The decision of the Minister

Appellant’s Memorandum of Argument Statement of Facts

You have referred me to the decision in R. v. Keyowski, [1988]

In light of your submissions, further information was sought from

Appellant’s Memorandum of Argument Statement of Facts

Finally, I note that the Record of the Case summarizes

For the reasons set out above, I am satisfied that there is

Appellant’s Memorandum of Argument Statement of Facts

D. Decision of the Quebec Court of Appeal

Appellant’s Memorandum of Argument Statement of Facts

an abuse of process”, adding that “the prosecution is not expected to go after an

Appellant’s Memorandum of Argument Issue

Appellant’s Memorandum of Argument Statement of Argument

PART III – STATEMENT OF ARGUMENT

A. The principle of comity: deference for the foreign system in extradition

Appellant’s Memorandum of Argument Statement of Argument

Appellant’s Memorandum of Argument Statement of Argument

B. The “shock the conscience” threshold