Procedural Fairness in Extradition
I want to focus, though, on the administrative law challenges addressed in Sriskandarajah. In particular, I want to question the Court’s conclusion that there had been no breach of the appellants’ rights to procedural fairness.
The circumstances are strange, but the three reasons the Court gave for refusing to oblige disclosure of the assessment are not compelling.
 First and foremost, prosecutorial authorities are not bound to provide reasons for their decisions, absent evidence of bad faith or improper motives: Kwok, at paras. 104-108. Not only does prosecutorial discretion accord with the principles of fundamental justice — it constitutes an indispensable device for the effective enforcement of the criminal law: Cotroni, at pp. 1497-98. The appellants do not allege bad faith. Their request to see the prosecution assessment is a thinly disguised attempt to impugn the state’s legitimate exercise of prosecutorial authority.
This approach creates something close to a legal black hole: an important decision disappears from view, as far as the individual in question is concerned, and there is no way to rescue it. I appreciate the general judicial disdain for review of prosecutorial decisions, but this is a relatively unusual set of facts. Imposing an obligation on the Minister to inform himself, with a view to informing the individual in question, would surely help the decision-making process, not hinder it; it would allow the appellants to put relevant material before the Minister.
 Second, as the Minister pointed out, the ability to prosecute in Canada is but one of many factors to be considered in deciding whether to extradite a person for prosecution in another country. Procedural fairness does not require the Minister to obtain and disclose every document that may be indirectly connected to the process that ultimately led him to decide to extradite.
This argument does not respond to the appellants’ argument. They did not want disclosure of every piece of information of possible relevance. Their argument was targeted.
Indeed, if the Minister himself was the only one making an assessment, or if the PPSC made both the assessment and extradition decision, there would surely be no doubt that disclosure of the assessment would be made. Bizarrely, a decision-making mechanism which was established to protect the interests of individuals threatened with deportation (by ensuring that independent decisions would be taken by PPSC and the Minister) makes it more difficult for them to protect themselves at a crucial stage of the decision-making process.
 Finally, concerns that the decision may have been based on out-dated information are met by the appellants’ ability to bring full and correct information to the attention of the Minister. In turn, the Minister must, in good faith, transfer to the prosecution authorities the information he finds relevant.
And one assumes that the Minister will act in good faith. But what if he doesn’t? What if there is a snafu between the Minister’s office and the PPSC? How would the individuals in question even know?
I haven’t had access to the full record in the case, so it may be that, on the facts, there was no unfairness to the appellants. But I do not find the Court’s response to this rather strange set of circumstances compelling.
This content has been updated on June 11, 2014 at 09:47.