The Supreme Court of Canada decided two interesting terrorism cases last Friday. R. v. Khawaja, 2012 SCC 69 has been grabbing most of the headlines because the Court upheld (though narrowly defined) anti-terrorism offences enacted shortly after 9/11. There were constitutional issues in the companion case of Sriskandarajah v. United States of America, 2012 SCC 70 as well, because the Court was asked to overrule one of its extradition precedents, Cotroni.

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 individuals in question had been surrendered by the Minister for Justice to the United States, where they are wanted on charges related to alleged funding of the Tamil Tigers. One of the elements considered by the Minister in his decision to extradite was that the Attorney General had decided not to charge the individuals with an offence in Canada. The appellants were allowed to make submissions, but complained that they were hampered by a lack of disclosure.

Amongst other things, the appellants had requested disclosure of the assessment made by the Public Prosecution Service of Canada in support of the decision not to prosecute. The Minister responded that the assessment was not in his possession. The position is a strange one: in making his extradition determination, the Minister relied on the fact that the appellants were not charged with offences in Canada, but did not rely on, or even request, the basis for the refusal to charge the appellants (see e.g. 2010 ONCA 859 at paras. 48-49).

The circumstances are strange, but the three reasons the Court gave for refusing to oblige disclosure of the assessment are not compelling.

First:

[27]                          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.

But how, then, could the appellants ever see the assessments? They could hardly seek judicial review, because the decision not to prosecute was — in a strange way — favourable to them. And how could they allege bad faith in respect of a decision that they have never seen? Worst of all, how could the appellants be confident that they put their best possible case against extradition to the Minister, in the absence of relevant information, potentially exculpatory in nature?

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:

[28]                          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.

Third:

[29]                          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.