Caplin v. Canada (Justice)

The Court — To satisfy the Minister that extradition should be refused, Mr. Caplin must show that his surrender would “shock the conscience” and thereby violate s. 7 of the Canadian Charter of Rights and Freedoms , or be “unjust or oppressive” under s. 44(1) of the Extradition Act , S.C. 1999, c. 18 . In our view, the Court of Appeal did not err in concluding that it was reasonable for the Minister to order surrender (2013 QCCA 1305). As we explain in the companion appeal in Canada (Attorney General) v. Barnaby, 2015 SCC 31, [2015] 2 S.C.R. 563, the fundamental issue for the Minister was whether surrendering Mr. Caplin to the “particular treatment” that awaits him in New Hampshire is contrary to Canadian principles of fundamental justice: United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, at para. 69. It appears from the material that the New Hampshire courts will decide whether Mr. Caplin’s trial, in all of the circumstances, is fair and just in accordance with principles that are broadly similar to those that would be applied in Canada if the issue arose here. This is not contrary to our sense of fundamental justice, but rather consistent with it.

Mr. Caplin suggests that there is no new evidence. He raises arguments about alleged weaknesses in the DNA analysis and submits that, in reality, the testimonial evidence is not new. He further submits that, in any event, the “new” evidence is of limited probative value because it does not conclusively establish his guilt. He also argues that the passage of time has caused prejudice that would justify denying extradition.

We are not persuaded by these arguments. In our view, it was reasonable for the Minister to conclude that it would not shock the conscience or be otherwise unjust or oppressive to allow the New Hampshire courts to address these concerns, rather than to preclude them from doing so by refusing surrender. Concerns about due process — including arguments related to delay — are generally a matter for the foreign court. As this Court held in Argentina v. Mellino, [1987] 1 S.C.R. 536, at p. 558:

Matters of due process generally are to be left for the courts to determine at the trial there as they would be if [the accused] were to be tried here. Attempts to pre-empt decisions on such matters, whether arising through delay or otherwise, would directly conflict with the principles of comity on which extradition is based . . . .

The Minister examined all of the relevant circumstances, including the importance of international cooperation in the extradition context. In light of all of these considerations, it was reasonable for him to conclude that it would not offend Canadian principles of fundamental justice or be otherwise unjust or oppressive to leave the decision about whether there should be a trial to the New Hampshire court. We would therefore uphold the Court of Appeal’s decision to affirm the surrender order. The appeal is dismissed.