The Court dismissed an appeal by an accused from an order of committal and application for judicial review of the decision of the Minister of Justice to surrender the Appellant to the Republic of Hungary. The Court found that the extradition judge’s questions, although of limited relevance, did not give rise to a reasonable apprehension of bias and the Minister of Justice had not erred in consulting with the Minister of Citizenship and Immigration.

Administrative law – Ministerial decisions – Extradition – Judicial review – Stay of proceedings – Evidence – Reasonable apprehension of bias – Procedural requirements and fairness

Hungary v. Horvath, [2007] O.J. No. 4077, Ontario Court of Appeal, October 24, 2007, M.J. Moldaver, J.C. MacPherson and P.S. Rouleau JJ.A.

The accused, Horvath, appealed from on order of committal and also applied for judicial review of the decision of the Minister of Justice surrendering him to the Republic of Hungary without conditions. The accused was a Hungarian of Roma ethnicity who, with his wife and son, maintained that they fled Hungary in 1999 as a consequence of numerous abuses inflicted upon them by the police and skinheads. The accused had been found ineligible to advance a refugee claim but had been granted the status of “protected person” pursuant to the Pre-Removal Risk Assessment Process set out in the Immigration and Refugee Protection Act. That designation had been made because the officer was satisfied that the accused, because of his Roma ethnicity, would face “more than a mere possibility of persecution” if returned to Hungary.

In 2003, an Authority to Proceed was issued by the Minister of Justice. The accused’s extradition was sought by Hungary for conduct corresponding to the Canadian offences of extortion, uttering threats and robbery. The accused had fled to Canada during his trial in Hungary on those offences.

At the extradition hearing, the accused sought a stay of proceedings on the basis that the dominant purpose of his criminal prosecution in Hungary and of the extradition proceeding was to persecute him because he is Roma, with the result being that the extradition proceeding should be found to constitute an abuse of process. The accused argued in this proceeding that the extradition judge erred in refusing the stay and that the conduct of the extradition judge during the proceeding gave rise to a reasonable apprehension of bias.

In respect of the stay application, the Court agreed with the extradition judge’s conclusion that the accused failed to adduce evidence sufficient to establish a Section 7 Charter violation or an abuse of process warranting a stay of proceedings.

The accused also alleged that a series of inappropriate and culturally insensitive interjections by the extradition judge were such as to give rise to a reasonable apprehension of bias. The threshold to establish real or perceived bias is a high one requiring cogent and substantial evidence that the judge has done something giving rise to a reasonable apprehension of bias. The Court found that some exchanges regarding the definition and origin of the term Roma were unfortunate and not pertinent, and that some of the extradition judge’s comments concerning his colleagues could be considered injudicious. They did not, however, when taken in the context of the whole proceeding, satisfy the Court that the extradition judge had predetermined the issues or decided them on anything other than the evidence put before him, nor would they cause the reasonable, informed observer to conclude that the extradition judge was anything less than impartial.

With respect to the Minister’s decision to surrender, Section 40 of the Extradition Act did not purport to limit the circumstances in which the Minister of Justice can consult with the Minister of Citizenship and Immigration. In this case, there was no error in the Minister of Justice having sought information from the Minister of Citizenship and Immigration. The Ministers were aware of the PRRA officer’s conclusion that the Appellant faced “more than a mere possibility of persecution” if returned to Hungary. The statement contained in the Minister of Citizenship and Immigration’s case summary to the effect that he was not persuaded of a “serious possibility” that the Appellant would be subjected to persecution if returned to Hungary was not intended to contradict nor would it have been understood to be contradicting the PRRA officer’s findings.

In the result, the Appeal and Application for Judicial Review were dismissed.

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