COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Italy v. Seifert,

2007 BCCA 420

Date: 20070816

Docket: CA031164

In the Matter of the Extradition Act

Between:

Michael Seifert

Applicant

And

The Attorney General of Canada on behalf of

The Government of the Republic of Italy

And

Minister of Justice Canada

Respondents

Before:

The Honourable Madam Justice Prowse

(In Chambers)

D.H. Christie

Counsel for the Appellant

D.J. Strachan

K.L. Swift

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

August 10, 2007

Place and Date of Judgment:

Vancouver, British Columbia

August 16, 2007

Reasons for Judgment of the Honourable Madam Justice Prowse:

[1]                Mr. Seifert is applying pursuant to s. 679(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”) for release pending the determination of his application for leave to appeal to the Supreme Court of Canada from the decision of this Court released August 3, 2007 (2007 BCCA 407).  This Court dismissed both his appeal from committal by the Extradition Judge on August 27, 2003 (2003 BCSC 1317), and his application for judicial review of the decision of the Minister of Justice of Canada (the “Minister”) on December 28, 2005, ordering his surrender to the Republic of Italy (“Italy”) where he is wanted for the enforcement of a life sentence for seven murder convictions.  (Italy sought extradition on nine counts, but the Extradition Judge committed, and the Minister ordered surrender, on only seven of those counts.)

[2]                In order to obtain his release, Mr. Seifert must satisfy the criteria set forth in s. 679(1)(c) of the Code, that:

(a)  the appeal or application for leave to appeal is not frivolous;

(b)  he will surrender himself into custody in accordance with the terms of the order; and

(c)  his detention is not necessary in the public interest.

[3]                The Respondents oppose Mr. Seifert’s release primarily on the basis that he has not satisfied the onus on him under s. 679(3)(c) to establish that his detention is not necessary in the public interest.  In summary, the Respondents say that Mr. Seifert’s proposed grounds of appeal are either frivolous or weak; that the risk of his absconding is higher now than it has ever been in the past; and that the public interest in the enforceability of this Court’s order, which will result in Mr. Seifert being surrendered to serve his sentence in Italy, far outweighs Mr. Seifert’s personal interest in the reviewability of the order for error.

[4]                By way of brief introduction, Italy requested the extradition of Mr. Seifert from Canada for the purpose of enforcing a life sentence imposed upon him following his conviction in absentia by the Military Tribunal of Verona of nine offences of “accessory to acts of violence with murder against civilian enemies” committed during World War II.  The convictions were upheld by the Military Court of Appeal and, subsequently, by the Supreme Court of Cassation, which is Italy’s court of last resort.  Mr. Seifert was represented by counsel before these tribunals, although his present counsel is adamant that Mr. Seifert did not retain counsel for those appeals, and suggests that any representation of Mr. Seifert’s interests was token, at best.

[5]                The details of the charges against Mr. Seifert may be found in the reasons for judgment of the Extradition Judge and, in an abbreviated version, in the reasons for judgment of this Court.  I do not propose to repeat that background except to say that the charges and convictions relate to events which occurred toward the end of the Second World War at the Bolzano Transit Camp in northern Italy.  Mr. Seifert admitted at the Extradition hearing that he had been at the camp during the relevant time, but he testified that he was there as a prisoner, not as a guard, and he denied all allegations against him.

[6]                Mr. Seifert has set forth 35 grounds of appeal in his Notice of Application for Leave to Appeal, which has now been filed and served.  (A copy of that Notice is attached as Appendix “A” to these reasons.)  Counsel for the Respondents has grouped these grounds under six discrete headings.  Counsel for Mr. Seifert did not take exception to the Respondents’ categorization of his grounds of appeal for the purpose of this application.

[7]                The six general headings which encapsulate the principal grounds of appeal relied upon by Mr. Seifert are:

(1)  Whether this court erred in reviewing the evidence itself in accordance with the principles enunciated in U.S.A. v. Ferras, [2006] 2 S.C.R. 77, 209 C.C.C. (3d) 353, rather than sending the case back to the Extradition Judge for this purpose;

(Notice of Application for Leave to Appeal, paras. 1, 3, 5, 6 and 10.)

(2)  Whether this Court in reviewing the evidence, applied the appropriate test under Ferras;

(Notice of Application for Leave to Appeal, paras. 2, 4, 11-20.)

(3)  Whether this Court erred in upholding Romilly J.’s decision regarding the fitness of the Applicant in which he limited cross-examination of the Crown’s expert;

(Notice of Application for Leave to Appeal, para. 8.)

(4)  Whether this Court erred in its conclusions on the parallel denaturalization proceedings;

(Notice of Application for Leave to Appeal, paras. 7 and 34);

(5)  Whether this Court erred in its conclusions regarding the Italian proceedings, including the issues of trial in absentia, delay and trial before extradition; and

(Notice of Application for Leave to Appeal, paras. 9, 21, 25, 27, 30, 31 and 33.)

(6)  Whether this Court erred in finding that there was no reasonable apprehension of bias due to the fact that the order of surrender was made by then Minister of Justice Irwin Cotler.

(Notice of Application for Leave to Appeal, paras. 22, 23, 24, 26, 28, 29, 32 and 35.)

[8]                Counsel for Mr. Seifert submits that this Court had no power to review the Record of the Case (the “record”), but should have remitted the review to the trial court.  In the alternative, counsel submits that if this Court had the authority to engage in such a review, it erred in the manner in which it approached the review in numerous respects.  Counsel submits that the review conducted by the Court was perfunctory and truncated; that it failed to take into consideration the significance of Mr. Seifert’s evidence, either alone, or in conjunction with the other evidence; that the Court failed to take into account “new evidence” from witnesses in parallel denaturalization proceedings which demonstrated, by analogy, the frailties of the evidence upon which the Court relied in upholding the committal and surrender; that the Court failed to properly consider the various bases relied upon by Mr. Seifert for establishing that the evidence was inherently frail and manifestly unreliable on any reasoned analysis; that the wording found in various paragraphs of the judgment do not reflect the test for review found in Ferras and indicate that the Court misdirected itself (for example, in para. 60, where the Court said it would not be “unjust to put the case to a jury”); and that the Court erroneously placed the burden on Mr. Seifert to establish that the committal should be refused.

[9]                In reply, the Respondents submit that provincial courts of appeal have jurisdiction in extradition matters to review the evidence tendered by the requesting state and that such a review is contemplated by s. 53 of the Extradition Act, S.C. 1999, c. 18, and at common law, and is reflected, for example, in United States of America v. Kwok (2001), 152 C.C.C. (3d) 225 (S.C.C.) at para. 38.

[10]            The respondents submit that it was not necessary for this Court to remit the matter to the Supreme Court for review, and that the Court acted appropriately in undertaking the review, particularly given the documentary nature of the vast majority of the evidence.  In relation to the various criticisms of the manner in which the review was conducted, the Respondents say that the credibility of Mr. Seifert’s evidence was of little, if any, import in determining the reliability of the evidence of other witnesses, since it consisted primarily of a broad denial of the charges, and that, in any event, this Court has held in United States of America v. Graham, 2007 BCCA 345, that the determination of credibility, as contrasted with reliability, is the function of the trial court, not the Extradition Judge, nor this Court on review.  The Respondents also submit that the “new evidence” of two of the witnesses tendered by Mr. Seifert on appeal did not relate to the counts upon which Mr. Seifert was committed, and that the evidence of the third witness, although admittedly weakened in cross-examination in the parallel proceedings, was confirmed in substantive respects by other evidence.

[11]            The Respondents also say that this Court did not place the burden on Mr. Seifert to show why he should not be committed but simply noted (at para. 50) that where the official who certified the record represented that the evidence collected is admissible in Italy in proof of the criminal allegations, the certification is presumptively conclusive as to admissibility, unless successfully challenged at the extradition hearing.

[12]            The Respondents note that in Graham, and in this decision, this Court has adopted a far more expansive view of the Ferras test than the Ontario Court of Appeal in United States of America v. Anderson, 2007 ONCA 84, 219 O.A.C. 369.  The Respondents submit that Mr. Seifert has had the benefit of that expansive approach, and that the language used by this Court in its analysis of the issues is consistent with the principles set out in Ferras.

[13]            Based on the submissions of the Respondents, I am satisfied that this Court had the power to engage in a review of the record rather than remit the case to the Supreme Court.  Further, given the history of this matter and the largely documentary nature of the record, I find little merit in the submission that the Court erred in exercising its discretion in undertaking that review, although I would not be prepared to say that this argument is frivolous.

[14]            I am not persuaded that the language used by this Court in applying the Ferras test indicates that the Court failed to appreciate the nature of the review contemplated by Ferras to the detriment of Mr. Seifert.  As pointed out by the Respondents, Mr. Seifert enjoyed a more expansive interpretation of the Ferras test than has been applied by the Ontario Court of Appeal.  While the Supreme Court of Canada may wish to take this opportunity to comment upon the application of the Ferras test given the divergence in approach reflected in the cases decided to date, I consider it unlikely that the court will adopt an interpretation more favourable to Mr. Seifert than that reflected in the decisions of this Court.

[15]            I am more sympathetic to counsel for Mr. Seifert’s submission that the relatively brief analysis of the individual counts by this Court; the reference to the alleged frailties of the evidence without specific reference to the individual counts; and the manifest problems necessarily inherent in evidence given so many years after events as traumatic as these, found arguable grounds for appeal.  This is particularly so in light of this Court’s interpretation of Ferras, which reflects a significant change in the role of the Extradition Judge (and, in turn, the reviewing Court).  It is important to note, however, that the reasons of this Court cannot be read in a vacuum, but have to be read in the context of the decision of the Extradition Judge, which set forth in more detail the nature of the evidence and the frailties of some of that evidence.  To the extent I am required to assess the relative strength of these grounds of appeal (in accordance with the analysis of this Court in R. v. Mapara (2001), 158 C.C.C. (3d) 312), I would describe them as arguable, but relatively weak.

[16]            With respect to the surrender order, Mr. Seifert’s main grounds of appeal centre on his submission that publications and statements of the Minister concerning the pursuit of war criminals, both before and after his appointment as Minister, created a reasonable apprehension of bias that he could not bring an open mind to the exercise of his discretion in determining whether to surrender Mr. Seifert to the Italian authorities.  This Court rejected those submissions and an alternative submission that the Minister was, in the circumstances, functus, at the time he made the order for surrender.

[17]            I am not persuaded that there is any merit to the submission that the Minister was functus at the time of his decision and I would classify the grounds of appeal relating to the Minister’s decision to surrender Mr. Seifert as weak.  I would not be prepared to say that they are frivolous.  (I note that the Respondents describe these grounds as “extremely weak”.)

[18]            Similarly, I would describe as “weak” the grounds of appeal relating to the manner in which Italy originally tried Mr. Seifert in absentia and subsequently sought his extradition.

[19]            On the other hand, I am satisfied that the grounds of appeal relating to Mr. Seifert’s fitness to stand trial, and the alleged prejudice to him arising from the parallel proceedings, are frivolous.

[20]            In summary, I find that Mr. Seifert has raised some arguable grounds of appeal, but that the best that can be said about those arguable grounds, based on the limited assessment of the merits that can be made on an application such as this, is that they are weak.  Mr. Seifert has, however, met the requirement under s. 679(3)(a) of the Code by raising some grounds of appeal which are not frivolous.

[21]            I am also satisfied that Mr. Seifert has met the onus on him under s. 679(3)(b) of the Code of establishing that, if released, he would surrender himself into custody in accordance with the terms of any order this Court might make.  Given his history of compliance with court orders over the many years that this proceeding has been ongoing, his age, state of health and other circumstances, I am satisfied that there is no significant risk that he will abscond pending his application for leave to appeal.  It is true that he has almost reached the end of the appeal process, and I accept that the possibility of him absconding must be viewed as higher than it has been at earlier stages of the proceedings.  But I would not rely on this ground as a basis for detaining him in custody.

[22]            The difficulty Mr. Seifert faces on this application is found in the application of s. 679(3)(c), that is, whether he has established that his detention is not necessary in the public interest.  Although I have found that Mr. Seifert has arguable grounds of appeal, I have also found that those grounds are weak (and some are weaker than others.)  I am simply unable to find that any one ground of appeal, or combination of grounds, can be said to be sufficiently strong that Mr. Seifert’s interest in the reviewability of this Court’s decision outweighs the public interest in having this Court’s order enforced.  In coming to this conclusion, I have taken into consideration Mr. Seifert’s age, his state of health, and his good behaviour while living in Canada.

[23]            The relevant authority in assessing the public interest under s. 679(3)(c) in this regard is Mapara, supra.  There, Madam Justice Ryan, speaking for the Court, noted the difficulty in determining in any particular case whether the public interest criterion in s. 679(3)(c) had been met and the need to articulate principles which can be applied in that determination.  At paras. 32-35 of the decision, she stated:

An analysis of the section's objectives was undertaken by Arbour J.A. (as she then was) in R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.). She said at pp. 47-8:

Section 679(3)(c) of the Criminal Code provides, in my opinion, a clear standard against which the correctness of any decision granting or denying bail pending appeal can be reviewed. The concerns reflecting public interest, as expressed in the case-law, relate both to the protection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability. It is the need to maintain that balance which is expressed by reference to the public image of the criminal law, or the public confidence in the administration of justice.

The "public interest" criterion in s. 679(3)(c) of the Code requires a judicial assessment of the need to review the conviction leading to imprisonment, in which case execution of the sentence may have to be temporarily suspended, and the need to respect the general rule of immediate enforceability of judgments. Public confidence in the administration of justice requires that judgments be enforced. The public interest may require that a person convicted of a very serious offence, particularly a repeat offender who is advancing grounds of appeal that are arguable but weak, be denied bail. In such a case, the grounds favouring enforceability need not yield to the grounds favouring reviewability.

On the other hand, public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, be corrected. This is particularly so in the criminal field where liberty is at stake. Public confidence would be shaken, in my view, if a youthful first offender, sentenced to a few months' imprisonment for a property offence, was compelled to serve his or her entire sentence before having an opportunity to challenge the conviction on appeal. Assuming that the requirements of s. 679(3)(a) and (b) of the Criminal Code are met, entitlement to bail is strongest when denial of bail would render the appeal nugatory, for all practical purposes. This same principle animates the civil law dealing with stays of judgments and orders pending appeal. It is a principle which vindicates the value of reviewability.

In R. v. Baltovich (31 March 2000), No. C12090 (Ont. C.A., in Chambers) [reported 144 C.C.C. (3d) 233], Rosenberg J.A. quoted the above passage from Farinacci with approval. Noting the appellant in that case was a mature offender with no previous record, and there was no suggestion he represented a danger to the public or would interfere with the administration of justice, Rosenberg J.A. concluded (para. 25) that "the matter that is most influential on the question of the public interest is the strength of the grounds of appeal".

I agree with the analyses in Farinacci and Baltovich. Public confidence in the administration of justice requires that verdicts, properly rendered, be enforced. Where an appellant establishes that he or she does not pose a flight risk and is unlikely to reoffend, the public interest also acknowledges that actual punishment for a crime be avoided if strong grounds exist for setting aside the verdict.

… In my view the strength of the interest of reviewability must primarily be measured by examining the likelihood of the success of the appeal.  Very strong grounds will tip the scale in favour of reviewability.

[Emphasis added.]

[24]            The crimes upon which Mr. Seifert has been ordered surrendered are atrocities of the worst order.  I have concluded that none of the grounds of appeal put forward can be described as “strong” or “very strong”.  Some of them are frivolous, and I would describe the balance as “weak”. The public interest in the enforceability of this Court’s order is very high.  In my view, public confidence in the administration of justice would be undermined if I were to order Mr. Seifert’s release in these circumstances.

[25]            In the result, I would dismiss Mr. Seifert’s application for release pending the hearing of his application for leave to appeal.  It is open to him to renew his application in the event leave is granted.  In the meantime, I would urge counsel to take all necessary steps to expedite the leave process.

“The Honourable Madam Justice Prowse”

APPENDIX “A”