Land Of the Free? SCC Rules that Refugee Status Is Not Immunity From Extradition But Won’t Send Jószef and Jószefne Németh Homebound Just Yet (Németh v Canada)

What do you do when a foreign state knocks on your door requesting the extradition of individuals facing criminal charges back home? If Karlheinz Schreiber comes to mind, then your answer might be, “No sweat, send him packing.” But the fact that Jószef Németh and his wife, Jószefne Németh, were Roma refugees living in Canada entirely altered the question before the Minister of Justice (“Minister”) and the Supreme Court of Canada (“SCC”) when Hungary issued an international arrest warrant for their return. The Minister decided to order their surrender. The Quebec Court of Appeal unanimously dismissed an application for judicial review. The Némeths then appealed to the SCC. Take a look here for TheCourt.ca’s own speculations on this case.

In a decision released November 25, the SCC in Németh v Canada (Justice), [2010] 3 SCR 281 [Németh], unanimously allowed the appeal. The same ruling took effect with respect to Németh‘s twin decision, Gavrila v Canada (Justice), [2010] 3 SCR 342, in which Romania requested the extradition of Tiberiu Gavrila after his conviction for forging visas. The Németh decision did not come with blanket immunity, however. In a case that beheld a battle between Canada’s various international obligations, the SCC ruled that individuals with refugee status do not necessarily escape extradition. However, the Minister’s decision regarding the Némeths was unreasonable because he had applied the wrong legal test and incorrectly placed the burden on the Némeths to show a continuing risk of persecution.

The Omnipotent’s Dilemma

In 2001, Jószef and Jószefne Németh and their children arrived in Canada seeking refugee protection. They alleged a fear of persecution in their homeland of Hungary because of their Roma ethnic origin. In three incidents between 1997 and 2001, Mr. Németh (and once with his wife) had been attacked by Hungarian citizens for his Gypsy heritage. The Minister of Citizenship and Immigration granted the Németh family refugee status.

In 2003, Hungary issued an international arrest warrant for the Némeths for selling a right of lease in Budapest that they did not actually possess. The Minister sought and was granted an order from the Superior Court of Quebec that confirmed the Némeths’ committal as a Canadian offence of fraud under s. 380(1) of the Criminal Code, RSC, 1985, c C-46 [Criminal Code]. He then ordered their surrender.

The Némeths and the interveners argued that Canada’s Extradition Act, SC 1999, c 18 [EA] ought not to apply to refugees so as to avoid a conflict between the EA and the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The potential conflict concerned the international “principle of non-refoulement” rooted in Article 33 of the United Nation’s Convention Relating to the Status of Refugees [Refugee Convention] and re-articulated in s. 115(1) of the IRPA. In Németh, the Court described non-refoulement as a principle that,

prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations. The object of the principle is the prevention of human rights violations and it is prospective in scope.

The Minister argued that any tension between extradition and non-refoulement was already addressed by the EA in sections I will soon discuss. On this issue the SCC agreed with the Minister.

Harmony: A traditional way of looking at our legislation

First, Justice Cromwell, writing for the Court, accepted that the protection against refoulement in Article 33 of the Refugee Convention included protection against extradition. The article states:

Article 33. – Prohibition of expulsion or return (“refoulement”)

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

However, the corresponding provision in the IRPA only specified general “removal.” Section 115(1) reads:

115. (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

Justice Cromwell decided that the term, “removal,” referred to “removal orders” in the IRPA and therefore had a specialized meaning within that Act that did not include removal by extradition.

Rather, the Court held that ss. 44(1)(a) and (b) of the EA specified the grounds on which the Minister must refuse to surrender a person sought. Section 44(1)(b) in particular reads:

44. (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that…(b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons.

In a detailed analysis of international treaties, Justice Cromwell concluded that s. 44(1)(b) and its inclusive protection of human rights were what gave effect to Canada’s international non-refoulement obligations where the extradition of a refugee was requested. The provision’s drafting was, according to the Court, inspired by the European Convention on Extradition and the United Nation’s Model Treaty on Extradition, which were both considerably influenced by the Refugee Convention. Therefore, the extradition of refugees was already considered in Canada’s EA and there was no conflict between the EA and the IRPA.

No, Minister

With the Némeths’ extradition looming menacingly near, Justice Cromwell then decided that the Minister’s decision in this case was still unreasonable because he had applied the wrong legal principles. The Court concluded that:

1. The Minister did not grant sufficient consideration to the Némeths’ status as refugees, particularly under the “prejudiced position” branch of s. 44(1)(b) (which the Court determined to be distinct from “prosecution by reason of ethnic origin” in the first part of the provision).
2. The Minister erred in requiring the Némeths to prove, on a balance of probabilities, that persecution would occur should they be returned to Hungary. Both the IRPA and the Refugee Convention pointed to a burden of establishing only a risk of persecution.
3. The Minister wrongly imposed the burden of proof on the Némeths. As they had already been granted refugee status, it would be unfair for them to be compelled to show – six years later – that they still required refugee protection. Rather, the burden of proving that refugee status ought to be terminated should have fallen on the state.

In the end, Justice Cromwell allowed the appeal and remitted the matter back to the Minister for reconsideration.

A Fine Balance

After eighty pages, Justice Cromwell and the SCC had delivered a carefully reasoned judgment that meticulously sought out Canada’s position in a labyrinth of international obligations. On one hand, Canada was bound to the protection of refugees by international treaties such as the Refugee Convention and Canada’s own commitment to human rights and the security of the person – note the Charter. On the other hand, Canada also had a responsibility to international extradition agreements between states, including the Model Treaty on Extradition, facilitated by Canada’s domestic EA.

The SCC’s final stance – both giving some and taking some – may have been predictable, but in my opinion, it also represented a reasonable balance of Canada’s international responsibilities. Extradition can be a serious impairment of individual autonomy and, as is clearly expressed in s. 44(1) of the EA, surrender should be refused for certain reasons including oppression and discrimination. It would seem equally unfair, however, to refuse the surrender of an individual facing criminal charges merely based on refugee status, particularly if circumstances in the home country had changed and a risk of persecution no longer existed. The Court may have been overreaching in asserting that the principle of non-refoulement was encapsulated in s. 44(1)(b) – and in the “prejudiced position” part of the provision in particular.  However, I think the drafting of the section was sufficiently ambiguous to come to broader inferences, which is what the Court did here in reaching a reasonable and balanced conclusion.

Article 33 of the Refugee Convention may prohibit the refoulement of a refugee in “any manner whatsoever,” but I would agree with Justice Cromwell that refugee status is temporal. If a risk of persecution no longer persists, it may well be that an individual is no longer considered a refugee. This idea is bolstered by ss. 108 and 109 of the IRPA, which allow the Minister of Citizenship and Immigration to apply for an order to cease refugee protection. The fact that the Minister must be the party to initiate the application likewise indicates that the government ought to bear the burden of proving that refugee status should be terminated. This too was the Court’s conclusion and one of the reasons for deciding that the Minister’s decision was unreasonable.

Although there were no sweeping victories in this ruling, the SCC rendered a closely reasoned decision that will set a much clearer precedent for future extradition cases. I might also add that it is very welcome to see Justice Cromwell finally baring some of his own colours and delivering a strong judgment for the Court. We have much to look forward to as next year’s docket comes around.