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                       COURT OF APPEAL FOR BRITISH COLUMBIA

Citation: Italy v. Seifert, 2007 BCCA 407                 Date: 20070803
          2007 BCCA 407                                   Docket: CA031164

                       In the Matter of the Extradition Act
Between:

                    The Attorney General of Canada on behalf of
                              the Republic of Italy

                                                          Respondent 
                                                          (Requesting State)
And
                                 Michael Seifert
                                                          Appellant
                                                          (Person Sought)
Before:
         The Honourable Mr. Justice Donald
         The Honourable Madam Justice Huddart
         The Honourable Mr. Justice Smith

D. H. Christie                 Counsel for the Appellant
D. J. Strachan and K. L. Swift Counsel for the Respondent

Place and Date of Hearing:     Vancouver, British Columbia
                               March 12, 13 and 14, 2007
Place and Date of Judgment:    Vancouver, British Columbia
                               August 3, 2007
Written Reasons by:
The Honourable Mr. Justice Donald

Concurred in by:
The Honourable Madam Justice Huddart
The Honourable Mr. Justice Smith

Reasons for Judgment of the Honourable Mr. Justice Donald:

[1]                As the end of the Second World War approached, Michael
Seifert, a member of the German S.S. (Schutzstaffel, the Nazi special police
force), found himself at the Bolzano Transit Camp in northern Italy.  

[2]                The Republic of Italy alleges that between December 1944 and
April 1945, while working as a guard at the camp, Seifert beat, tortured,
starved and murdered inmates.  

[3]                After giving notice to Seifert along with an offer to
provide him counsel, Italy prosecuted him in absentia.  He was convicted of a
number of murders and sentenced to life imprisonment.  Italy requests his
extradition on nine offences of murder.

[4]                Seifert testified at the committal hearing before Mr.
Justice Romilly.  He said he was at the Bolzano camp during the relevant time,
but he was there as a prisoner serving a sentence for rape of a local woman,
not as a guard, and he harmed no one.

[5]                The committal hearing took a long time.  Seifert raised an
issue as to his fitness to participate in the process and challenged the
sufficiency of the evidence adduced by Italy in various ways, including giving
evidence for four days in which he denied every allegation of wrongdoing by
every witness in Italy's Record of the Case.

[6]                On 27 August 2003, Romilly J. committed Seifert to await
surrender on seven of the nine offences in the request:  2003 BCSC 1317.

[7]                It is alleged on appeal that the judge did not assess the
evidence according to the degree of scrutiny now required by the 2006 decision
of the Supreme Court of Canada in United States of America v. Ferras; United
States of America v. Latty, [2006] 2 S.C.R. 77, 209 C.C.C. (3d) 353, 2006 SCC
33.  Seifert seeks a new hearing so that such an assessment can take place.  He
raises a host of other issues, but this is the most important one.

[8]                At the surrender stage, the matter was considered by the
Honourable Irwin Cotler, then Minister of Justice and Attorney General of
Canada.  After another lengthy process, on 28 December 2005 the Minister
ordered the surrender to Italy on the seven offences for which Seifert was
committed.

[9]                Again, although Seifert raises many issues in his challenge
to the surrender order, one issue emerges as the most important.  It is alleged
that the Minister's background as a passionate advocate for Jewish
organizations in matters relating to the Holocaust and bringing Nazi war
criminals to justice gave rise to a reasonable apprehension of bias.  It is
said that a well-informed, reasonable person would not think the Minister could
bring an open mind to the exercise of the discretionary power to refuse
surrender on humanitarian and compassionate grounds or on grounds relating to
the Italian process.  It is further said that there is a realistic basis for a
favourable exercise of the discretion not to surrender:  Seifert, who turned 83
years of age during the appeal hearing and who has some health problems, led a
peaceful life in Canada for over 50 years, where he worked hard, raised a
family and in all respects behaved as a good citizen.

[10]            The extradition judge did not have the advantage of Ferras.
Seifert is entitled to an assessment of the evidence in conformity with that
case.  I am not persuaded that a new committal hearing is necessary to fairly
accomplish that task.  Having reviewed the evidence, I am satisfied that the
evidence is sufficient for committal.  I would not disturb the order of
committal on any of the other grounds of appeal and accordingly I would dismiss
the appeal.

[11]            On the judicial review of the Minister's surrender order, I do
not accept that the Minister's prior activities and representations as a human
rights activist created a reasonable apprehension of bias.  Nor am I moved to
interfere with the order on any other basis advanced by Seifert.  I would
dismiss the petition for judicial review.

Facts 

[12]            That Seifert was a member of the German armed forces at the
Bolzano Transit Camp in the closing months of the Second World War is not in
dispute.  What is in question is his identity as the perpetrator of the seven
offences for which he was committed.

[13]            As mentioned, Italy adopted the Record of the Case method in
presenting its request:  s. 32(1)(a) of the Extradition Act, S.C. 1999, c. 18.
The Record of the Case summarized what Italy considered to be the most
important evidence and included copies of statements of the principal
witnesses.  The military prosecutor of Military Court Verona, Dr. Bartolomeo
Costantini, certified that:  

... the evidence summarized in the record of the case is available for trial,
and that this evidence is sufficient under the law of Italy to justify
prosecution certify that the evidence summarized in the record of the case is
available for trial, and that this evidence was gathered according to the law
of Italy.

[14]            This is in accordance with s. 33(1)(a) and s. 33(3)(a)(i) and
(ii):

33. (1)  The record of the case must include 

(a)  in the case of a person sought for the purpose of prosecution, a document
summarizing the evidence available to the extradition partner for use in the
prosecution;

* * *

    (3)  A record of the case may not be admitted unless

         (a)  in the case of a person sought for the purpose of prosecution, a judicial
         or prosecuting authority of the extradition partner certifies that the evidence
         summarized or contained in the record of the case is available for trial and 

         (i)  is sufficient under the law of the extradition partner to justify
         prosecution, or

         (ii)  was gathered according to the law of the extradition partner; ...

[15]            As an overview, the following capsule summary, presented by the
International Assistance Group in a submission to the Minister at the surrender
stage, is both accurate and helpful:  

The Government of Nazi Germany was at war with Italy in the latter part of the
Second World War, and operated a "Transit Camp" near Bolzano, Italy to house
persons engaged in forced labour, political prisoners, hostages, Jews and
persons awaiting transit to concentration camps.

Mr. Seifert was a member of the German military in the SS.  In 1944, he and
another man, named Mr. Otto Sein, were guards at the Bolzano camp.  They had
been sentenced by a German Military Court to a period of time in the transit
camp following a finding of rape made against them.  Most of the prisoners in
the camp were Italian.  Mr. Seifert and this other man were assigned the task
of guarding the persons in the "isolation cells", which functioned as a prison
within the prison.  Mr. Seifert was, therefore, both a prisoner within the camp
and a camp guard.  Mr. Seifert and Mr. Sein were the only Ukrainian guards
within the isolation cells.  They worked under Mr. Albino Cologna who was in
charge of the isolation cells.

The allegations are that over a period between December 1944 and April 1945,
Mr. Seifert tortured and murdered a number of prisoners in the isolation cells.

[16]            The setting in which the alleged crimes were committed was
described in the Record of the Case in this way: 

1.         The Bolzano Military Transit Camp

            Following is a summary of the evidence relating to the
establishment and operation of the Bolzano Transit Camp by German SS occupying
forces in 1944 and 1945.

            In the course of the Second World War, an armistice was signed by
the Italian Kingdom with the western allied forces on September 8th, 1943.
Thereafter, Germany was at war with Italy and German Military forces occupied
certain areas of northern Italy.  In June, 1944, the "Polizeiliches
Durchgangslager Bozen" (Bolzano Transit Camp) was set up by the occupying
German forces and placed under the authority of the SS, the body to which all
the Camp officials belonged.

            The camp's function was to gather antifascist and antinazi
politicians, persons of Jewish religion, deserters and other persons rounded up
in all of Italy who were destined to be transferred to the concentration and
extermination camps situated in Austria (Mauthausen), Germany (Dachau,
Flossenburg, Ravensbruck) and Poland (Auschwitz) and related sub-camps.  The
camp also gathered family members of deserters from the German military who
were captured in order to convince them to return back to the army.  The
prisoners were both men and women; there were a few children, mainly Jewish
ones.

            The first activity at the camp was to assemble prisoners who had
been evacuated from the Nazi transit camp in Fossoli, an Italian town between
Bologna and Verona.  The Germans no longer considered this camp secure as a
result of the advancement of the allied troops from the South to the North of
the Italian peninsula.

            The people captured in various areas of northern Italy were quickly
deported to the Bolzano camp and were destined to concentration and
extermination camps situated in Austria, Germany and Poland.  This Camp could
hold more than 11,000 people; about 8,000 of these were deported during the
Third Reich and few returned home.

            Some of the person[s] detained in the Camp were not transported,
but were detained at the Camp either to work in factories located outside of
the Camp that made weapons and motor trucks for the German military forces
(these prisoners were taken to and from the factories by SS members), or to
work in the Camp itself to carry out assigned functions (laundry, cleaning,
etc.).

            Between February and March 1945, the transport of prisoners to the
Third Reich became ever more infrequent and then ceased altogether because the
rail lines were interrupted by the allied bombings.

            The last documented transports of prisoners from the Camp by train
were a transport of about 540 prisoners towards Mauthausen which left on Feb.
1, 1945 and a transport of motor trucks of about 20 prisoners towards Dachau
which left on March 22, 1945.  As a result of the rail lines being unusable,
the population at the camp increased.

            The prisoners were lodged in a series of huts, situated on two
sides of the camp, to the right and the left in relation to the entrance.
These huts were called blocks, and each was marked with a letter "A" through
"I".

            At the end of the camp farthest from the entrance and located apart
from the "Blocks", there was a building which contained on the ground floor the
Camp isolation cells and on the upper floors, a warehouse of materials.  These
were the only isolation cells within the Camp.  In these cells, certain Camp
prisoners were locked up for varying periods of time or even for the entire
duration of their imprisonment within the Camp.  Prisoners were placed in the
isolation cells primarily to subject them to interrogation.

            The building containing the isolation cells had over thirty cells
which faced each other down a long corridor.  Each cell contained a varying
number of prisoners.  The isolation cells were locked day and night and were
kept dark, with the prisoners being permitted out of their cells for only a few
minutes a day.

            From the time it was instituted in June of 1944 to the moment it
closed, the camp was run by the Untersturmfuehrer (second lieutenant) of the
SS, Karl Friedrich TITHO, while the <> of the camp and
responsible for surveillance and discipline was Oberscharfuehrer
(sergeant-major or marshall) of the SS, Hans. HAAGE.

            The task of surveilling the cells was assigned primarily to Albino
Cologna and two SS of Ukrainian origin, Michael SEIFERT and Otto SEIN.  SEIFERT
and SEIN disappeared before the camp's closure and no other information on them
was known.

            On the 3rd of May 1945, the Camp was permanently closed with the
release of the last approximately 3500 prisoners.

[17]            The judge found the evidence sufficient to commit on seven of
the nine offences alleged in the Record of the Case.  He segregated the
offences into counts corresponding with their listing in the Authority to
Proceed.  

[18]            Count 1 alleged the murder of a young Jewish prisoner by
starvation.  As with all the counts, the judge in his reasons summarized the
allegation, described the evidence submitted in support, and expressed his
conclusion.  By way of a summary on count 1, he wrote: 

[73]  ... Seifert, either acting alone or together with Sein, deliberately
withheld food from a young Jewish prisoner, thereby causing his death.

[19]            For the sake of brevity, I will leave a discussion of the
evidence on each count until I reach my analysis under the Ferras principles.  

[20]            The judge discharged Seifert on count 2, which alleged the
murder of a pregnant female prisoner, who was raped, tortured for information
by dousing her with cold water in wintertime, and found dead in a pool of
blood.  The judge concluded: 

[92]  ... Even taking into account his evidence regarding Seifert and Sein's
previous physical and sexual abuse of the victim, I find there is an
insufficient evidentiary foundation upon which to reasonably infer causation
and identity.

[21]            Count 3 alleged the murder of Bortolo Pezzuti (Pizzuto) who was
beaten with a stick and who had his abdomen gashed.  The judge noted: 

[95]  [Italy] submits that Mella Mascagni (nee Lilli), a prisoner in the
isolation cells, came to know another prisoner, Bortolo Pizzuto.  The night
before Easter 1945, Lilli heard Seifert and Sein take Pizzuto from his cell and
beat him with a stick in the corridor of the isolation cell building.  Both
Lilli and Giovanni Boni saw Pizzuto?s dead body with his abdomen gashed.  

[22]            Count 4 alleged the murder of a male prisoner who tried to
escape.  The judge summarized it: 

[108]  [Italy] submits that in March, 1945, a group of five guards, including
Seifert and Sein, beat to death a prisoner who had tried to escape the Camp.  

[23]            Count 5 alleges the murder of two prisoners in the
circumstances summarized by the judge in this way: 

[114]  [Italy] submits that in March or April, 1945, Seifert, Sein and Cologna
kicked two prisoners and then shot them to death in the courtyard of the Camp.

[24]            The judge discharged Seifert on count 6, which alleged the
murder of a male prisoner who disappeared after Seifert and Sein tortured him
by gouging his eyes.  The judge's conclusion was: 

[126]  However, in the absence of the victim?s body, there is no evidence from
which to infer causation.  In my opinion, the fact that Seifert and Sein
physically abused him three to four nights previously is insufficient in this
regard.  

[25]            Count 7 alleges the murder of a Jewish woman, known as Voghera,
and her daughter.  The judge summarized it as follows: 

[129]  [Italy] submits that a 50 year old Jewish woman, Voghera, was imprisoned
at the Bolzano Transit Camp in early 1945.  Her daughter was imprisoned the
following day.  Seifert and Sein deprived them of food and forced them to sleep
naked on the floor.  Both women died after being severely beaten by the two
guards.

[26]            Count 8 alleges the murder of an Italian male prisoner.  The
judge referred to the evidence of Josef Brunner in support of this count.  The
Record of the Case presented Brunner's deposition, in which he declared: 

One night, guards took a man, I think a partisan, to the infirmary.  He was
Italian, he was beaten with clubs, or a sort of whip.  I had already finished
my duty, so I left and went to my block.  The following morning I found that
man dead, near a bed in the infirmary.  I had to take his corpse to his cell, I
do not know what happened afterwards.

[27]            Count 9 alleges the murder of another prisoner who tried to
escape.  The judge stated: 

[140]  [Italy] submits that one afternoon a few days before Christmas 1944,
Seifert and Sein dragged a prisoner who had tried to escape to the end of the
Camp where they bound him to a wire fence near the laundry.  The inmates of the
Camp were required to assemble outside to watch the punishment of this
prisoner.  He was savagely beaten by the two guards until he lost
consciousness.  His dead body was still there the following morning.  

[28]            When hostilities ended in May 1945, Seifert dropped out of
sight.  His whereabouts were unknown to the Italian authorities until 1999.
Seifert entered Canada in the early 1950's and lied about his past.  

[29]            Upon arrival in Canada, he began a normal life as an immigrant.
He worked in a sawmill, married, had children, bought a house, went to church,
attained citizenship and retired in due course, all without blemish.  This
idyllic situation was shattered when out of the past came the announcement by
mail in August 1999 that Italy accused him of wartime offences of the most
grievous sort and that a prosecution was pending.  

[30]            In the Minister's surrender decision, the sequence of events
was described as follows: 

Italian authorities sent 3 written notices to Mr. Seifert, namely, in August
1999, in November 1999, and on September 28, 2000, none of which was in German,
his mother tongue.  The first notice was in English.  According to the
conversation Mr. Seifert had with the Royal Canadian Mounted Police (RCMP) who
served him with the third notice, he had not read the first notice but had
sought legal advice.  The second notice, which was sent by mail in November
1999, was not accepted or signed for at Mr. Seifert's address.  The third and
final notice of September 28, 2000, in both English and Italian, was served
upon Mr. Seifert and explained to him, in the presence of his wife, by the
RCMP.  The notices provided detailed information about, inter alia, the charges
against Mr. Seifert, his rights, the time and place of the trial, and the
consequences of his not attending, and invited him to contact appointed counsel
or the prosecution.

[31]            The trial proceeded in Seifert's absence on 20-24 November 2000
before the Military Tribunal of Verona on 15 charges.  Verdicts of guilty were
returned on the nine charges forming the basis for the extradition request, and
a sentence of life imprisonment was passed.  Seifert brought appeals from
conviction through lawyers he engaged in Italy.  His appeal at the first level
was dismissed on 18 October 2001 and his further appeal to the court of last
resort, the Supreme Court of Cassation, was dismissed on 8 October 2002.  

[32]            While the appeals were pending, Italy made an extradition
request and on 26 April 2002, the Minister of Justice's designate issued an
Authority to Proceed under s. 15 of the Extradition Act in relation to nine
offences corresponding to murder under s. 229 of the Criminal Code of Canada:  

... for the execution of a sentence imposed after he was tried and convicted in
his absence.

[33]            Italy's extradition request also stimulated a denaturalization
proceeding to strip him of his status as a Canadian citizen by reason of a
false declaration he made upon entry.  Those proceedings paralleled the
extradition.  Seifert argues that the dual proceedings affected the fairness of

[34]            Seifert was arrested on 1 May 2002 in Vancouver by Sergeant
Thordarson of the Royal Canadian Mounted Police, who interviewed him regarding
whether he was the person sought by Italy.  The extradition hearing began on 27
September 2002.  The first issue was Seifert's fitness.  The hearing into
fitness went 18 days between 12 November 2002 and 1 April 2003, during which
Sergeant Thordarson's videotaped interview with Seifert was adduced and expert
evidence called.  In a full set of reasons released 1 April 2003, the judge
ruled Seifert fit for the hearing on extradition:  2003 BCSC 501.  

[35]            The extradition hearing itself began on 2 April 2003, concluded
on 27 August 2003, and involved 14 hearing days.  Although the Authority to
Proceed was directed at the execution of a sentence rather than a prosecution
in the requesting state, the judge was required to rule on the adequacy of the
evidence in the Record of the Case as though there had been no trial and no
conviction.  This is because the trial in Verona was held in Seifert's absence.
The following provision in the Act is relevant:  

29. (1)  A judge shall order the committal of the person into custody to await
surrender if 

(a)  in the case of a person sought for prosecution, there is evidence
admissible under this Act of conduct that, had it occurred in Canada, would
justify committal for trial in Canada on the offence set out in the authority
to proceed and the judge is satisfied that the person is the person sought by
the extradition partner; and

(b)  in the case of a person sought for the imposition or enforcement of a
sentence, the judge is satisfied that the conviction was in respect of conduct
that corresponds to the offence set out in the authority to proceed and that
the person is the person who was convicted.

* * *

  (5)  Subject to a relevant extradition agreement, if a person has been tried
and convicted without the person being present, the judge shall apply paragraph
(1)(a).  

Issues  

[36]            The issues on appeal are:

1.         What is the effect of Ferras on the assessment of evidence for
extradition?

2.         If the evidence must be reassessed, should the case be remitted or
should this Court undertake the task?

3.         On reassessment, does the evidence satisfy the Ferras test?

4.         On the question of fitness, did the judge err:

(a)        in restricting cross-examination of an expert;

(b)        in admitting the videotaped statement without conducting a voir
dire;

(c)        in rejecting the evidence of a novel testing technique for cognitive
function; 

(d)        in applying an inappropriate test for determining fitness?

5.         In refusing Seifert's Rowbotham application for state funding of
counsel, did the judge err?

6.         In refusing to entertain a constitutional challenge to s. 47(b) of
the Extradition Act on the ground that the provision relates to the ministerial
stage of extradition, did the judge err?

7.         In refusing Seifert's request to embark upon a Charter inquiry into
the allegation of mala fides on the part of Italy, did the judge err?

[37]            The issues on judicial review of the surrender order are:

8.         Do the circumstances give rise to a reasonable apprehension of bias?

9.         Seifert requested disclosure relating to an allegation of
apprehension of bias and also requested an oral hearing before the Minister.
Both requests were refused.  Was he denied procedural fairness?

10.       Does Italy's conduct constitute an abuse of process?

11.       Would Seifert's extradition be unjust or oppressive?  

12.       Did the parallel citizenship revocation process create an abuse of
process?

13.       The Minister signed the surrender order after Parliament had
dissolved.  Did he have the power to issue the order?

[38]            I propose to discuss the issues in the order arranged above.

1.         The Effect of Ferras  

[39]            Counsel for Italy urged upon us an interpretation of Ferras
that I have said in a recent judgment, United States of America v. Graham, 2007
BCCA 345, was too narrow a view of what that case decided.  I will not repeat
the analysis in Graham leading to what I consider to be the proper
interpretation of Ferras.  I need only say in summary that I rejected the
proposition that Ferras merely modified the hitherto leading case of United
States of America v. Shephard (1976), [1977] 2 S.C.R. 1067, 30 C.C.C. (2d) 424,
and held that Ferras not only required a requesting state to produce evidence
both reliable and available, but also clothed the extradition judge with the
discretion to engage in a limited weighing of the evidence (thereby overruling
a key element of Shephard) to determine whether the evidence proffered by the
requesting state was sufficient to enable a properly instructed jury, acting
reasonably, to convict on the basis of the evidence.

[40]            The judge's decision in this case preceded Ferras by several
years.  I think he took a careful look at all the evidence ? indeed, he
discharged on two counts ? but, in an extensive review of the authorities, he
noted the limited role of the judge as outlined in Shephard.  I cannot say that
he fully anticipated the development of the law as set out in Ferras when he
assessed the sufficiency of the evidence and so a reassessment is necessary.
Who should do it?

2.         Remit or decide?

[41]            Seifert wants a new hearing.  Italy says that this Court should
conduct a reassessment.  I agree with the latter position.

[42]            A new hearing would cause intolerable delay in an already
protracted case.  Canada's extradition partners are entitled to a swift
determination of their requests.  

[43]            Although Seifert says there are matters of credibility on oral
testimony that should be determined by a trier of fact at first instance, I do
not think that poses a problem in this case.  Seifert's testimony amounts to a
long series of denials.  His credibility is for trial, not committal.  In this
regard, I refer to the concurring reasons of Mr. Justice Hall in Graham:  

[41]  I wish, however, to note that I would consider it an extremely rare
situation when an extradition judge could properly enter upon a consideration
of the credibility of proposed witnesses.  Credibility is pre-eminently a jury
question to be left to be considered by the trier of fact.  Unreliability of
evidence could arise for instance from serious deficiencies in a body of
circumstantial evidence or from the opportunity for a witness to know or
observe factual matters.  But the mere fact that a witness might be thought by
an extradition judge to be of less than stellar credibility would not normally
suffice as a ground to refuse a committal order.  That sort of issue, in my
opinion, is best left to be decided by a trial court.  

[44]            Moreover, Seifert's evidence does not manifest the
unreliability of the evidence against him, nor does it demonstrate its
unavailability; it simply sets up issues which he had an opportunity to address
in the Italian trial, had he decided to participate.

[45]            The approach taken by the Supreme Court of Canada in Ferras,
which this Court followed in Graham, was to review the evidence in light of the
new rule.  I propose to take that course in the present case to minimize delay.
The Record of the Case is there to read and consider.  I do not think we are at
a significant disadvantage relative to the extradition court in carrying out a
reassessment.  

3.         Sufficiency of the Evidence  

[46]            There are two issues of identification:  

1.         Is Seifert the person sought by the requesting state?

2.         Is he the person who committed the offences?

[47]            The Act makes provision for evidence on the first question:

33.       ...

  (2)      A record of the case may include other relevant documents, including
documents respecting the identification of the person sought for extradition.  

* * *

37.       The following are evidence that the person before the court is the
person referred to in the order of arrest, the document that records the
conviction or any other document that is presented to support the request: 

(a)  the fact that the name of the person before the court is similar to the
name that is in the documents submitted by the extradition partner; and

(b)  the fact that the physical characteristics of the person before the court
are similar to those evidenced in a photograph, fingerprint or other
description of the person.

[48]            The judge correctly stated that the standard of proof on the
first question is proof on the balance of probabilities.  There is an abundance
of evidence, including photographs of Seifert in his S.S. uniform, and his own
testimonial admission that he is the person Italy seeks.

[49]            The second question of identity, Did he commit the offences
alleged?, is the real issue.  I will address this question on a count-by-count
analysis in as succinct a manner as I am able.

[50]            A few general remarks about Italy's assembly of the evidence in
the Record of the Case is in order.  Italy's legal system is in the civilist or
continental tradition where evidence is gathered in an inquisitorial process,
recorded in formal summaries or verbatim statements and then used as a basic
reference at trial.  The Record of the Case consists of witness statements
captured in various forms and at different stages of the inquisitorial process:
statements to police officials, to prosecuting magistrates in the course of an
incidente probatorio (bearing some similarities to our preliminary inquiry),
statements to an investigating magistrate, and, with respect to some witnesses
who are now deceased, their testimony at the trial in 1946 regarding one of the
prison officials, Albino Cologna, at the Bolzano Transit Camp.  The official
who certified the Record of the Case represented that the evidence collected in
these various ways is admissible in Italy in proof of the criminal allegations
and unless successfully challenged at extradition, the certification is
presumptively conclusive as to admissibility and, ergo, establishes the
availability of the evidence.

[51]            Count 1 alleges the murder of a young Jewish prisoner by
starvation.  The circumstances of the victim's death were witnessed by Ilda
Fliri Magri and Gustav Mair, both prisoners.  Other witnesses gave evidence
that Seifert and Otto Sein controlled the feeding of prisoners in the isolation
cells.  This is enough evidence to go to a jury and is thus sufficient.  

[52]            The judge discharged on count 2.

[53]            Count 3, alleging the murder of Bortolo Pezzuti (Pizzuto) by
beating him with a stick and gashing his abdomen, is supported by two former
prisoners who saw the event.  Mella (or Nella) Lilli Mascagni gave evidence
that the Ukrainians did this.  She referred to Seifert by name and identified
him from a photograph taken during the War.  She knew the name of the victim.
Her evidence was confirmed by the other witness, Giovanni Boni.  This is
sufficient.

[54]            Count 4, alleging the murder of a prisoner who tried to escape,
was also witnessed by Giovanni Boni.  He gave evidence that Seifert, with four
others, kicked the victim to death.  He identified Seifert by name as one of
the two Ukrainian guards who participated in the fatal beating.  This is
sufficient to go to a jury.

[55]            Count 5, alleging the murder of two male prisoners, was also
witnessed by Boni, who gave evidence that from his cell window he saw Cologna,
Sein and Seifert, whom he referred to as S.S. soldiers, kick the prisoners and
then shoot them, one in the head, the other in the back.  He said the victims
had tried to escape.  This is sufficient evidence.  

[56]            The judge discharged on count 6.

[57]            Count 7, alleging the murder of a Jewish woman from Milan by
the name of Voghera and her daughter, was supported by three former prisoners.
The principal witness was Mario Leoni, who gave evidence that he occupied the
cell next to what he called the "death cell", from which he was able to
determine that the two women were starved and severely beaten by Seifert and
Sein until they died.  The other two witnesses confirmed his story in material
respects.  This is sufficient evidence.

[58]            Count 8, alleging the murder of an Italian male prisoner, is
supported by the evidence of Joseph Brunner.  Brunner was a prisoner who worked
in the infirmary of the camp.  He identified Seifert in his wartime photograph
as one of the two S.S. Ukrainian guards who cudgelled a young man suspected of
being a partisan.  Brunner brought the victim to the infirmary where he found
the victim dead the next morning.  This is eyewitness testimony sufficient to
commit on count 8.

[59]            Count 9, alleging the murder of a male prisoner who tried to
escape, was supported principally by the evidence of Giuseppe D'Antonio, who
said that the two Ukrainian S.S. guards dragged an escapee to a wire fence in
the yard of the camp, and in front of the other inmates, who were paraded to
watch this event, beat him savagely with clubs.  The victim died bound to the
fence.  This incident was also witnessed by Luciana Menici, who said the "two
Ukrainians" killed the victim.  Her account is confirmed in material
particulars by Giuseppe Kneissl.  This is sufficient for committal.

[60]            As I reviewed the evidence, I kept in mind what Seifert's
counsel argued were inherent weaknesses in the Record of the Case and which he
submitted would have demonstrated the insufficiency of the case on the Ferras
standard.  The alleged defects said to manifest the unreliability of the
evidence are:  hearsay in some of the evidencfall well short of weakening the
case to the extent that committal should be refused.

4.         Fitness

[62]            Seifert gave evidence at considerable length.  The transcript
of his testimony reveals no cognitive deficit.  The judge recorded his
impressions of Seifert's testimony in his reasons for committal in this way:

[8]  The Respondent testified for four days during this hearing.  I had an
excellent opportunity to observe him.  He appeared to be a feisty senior.
After observing hm for these four days, I am more convinced than ever that he
does not suffer the dementia or other mental disabilities from which he claimed
to suffer at the outset of this hearing.  His command of the English language
also appeared much better than was initially claimed.  

[63]            In view of these observations, I find it difficult to take
seriously the grounds advanced under the heading of fitness.  I propose then to
move quickly through those grounds.

(a)        Restricted cross-examination of an expert

[64]            Italy called an expert on Seifert's fitness.  The judge
interrupted the questioning by Seifert's counsel of the witness on his
qualifications and pointed out that his questions related not to his
qualifications but to the value of his expert opinion.  The judge did not allow
counsel to press the witness on his partiality towards the party who hired him,
and invited counsel to take up the issue with the witness on the
cross-examination in due course.  After the judge accepted the witness's
qualifications and the witness testified in chief, Seifert's counsel did not
return to the subject.  This point has no merit.

(b)       The videotaped interview by Sergeant Thordarson

[65]            The videotape was entered for the limited purpose of showing
Seifert's awareness and understanding and for no other purpose.  Seifert argues
the voluntariness of the statement should have been tested by a voir dire.  The
judge correctly held that voluntariness was irrelevant to the  Seifert applied
for a stay of proceedings until state funding was provided.  Legal aid had been
refused him.  After receiving formal notice of an intention to prosecute from
Italy, Seifert transferred his undivided half-interest in the family home to
his He was able to engage counsel in Italy to pursue two appeals.  He produced
no financial documentation relating to his assets and liabilities in support of
his request for state funding.  There was no basis for a stay on Rowbotham
principles.

[69]            Grounds 6 and 7 should be considered together.  

6.         Constitutional Challenge to s. 47(b) of the Extradition Act; and

7.         Refusal to Entertain a Charter Challenge (s. 7), on an Allegation of
Mala Fides  

[70]            Section 47(b) provides:

47.       The Minister may refuse to make a surrender order if the Minister is
satisfied that

* * *

(b)  the person was convicted in their absence and could not, on surrender,
have the case reviewed;

[71]            Seifert's counsel did not make it clear what was
unconstitutional about s. 47(b).  I infer that since the in absentia
proceedings were allegedly contrary to fundamental justice, the Minister should
have a broader discretion not to surrender than provided in s. 47(b).  In any
event, this subject and the mala fides question of Italy's conduct were found
by the judge to be matters for the Minister and beyond his jurisdiction.  In
particular, he ruled that he could only entertain matters related to the
committal process and that allegations relating to Italy's decision to try the
case in a military tribunal rather than a civil court, the widespread
publication of the wartime photograph of Seifert when identification was the
key issue, other negative publicity, and ineffective assistance of counsel
appointed to represent him, are all matters for consideration at the surrender
stage and do not affect the integrity or the fairness of the committal stage.  

[72]            The judge accepted that he had jurisdiction to consider the
allegation of an improper motive in conducting his trial in absentia rather
than first seeking his extradition because arguably the impropriety could
affect the integrity of the committal.

[73]            Seifert proposed calling Italian lawyers to provide the
foundation for these arguments.  This is where the Charter challenge broke
down.  The judge was given no material relating to the evidence the lawyers
could offer to establish an air of reality to the mala fides question.  The
judge, quite properly in my opinion, refused to infer mala fides simply from
the sequence of the proceedings.  He ruled (Ruling No. 5, 2003 BCSC 991):

[59]  There may be any number of reasons why the Government of the Republic of
Italy proceeded first with the respondent's trial, conducted in absentia, and
then sought his extradition from Canada.  In support of his allegations that
Italy acted out of improper motives, the respondent asserts the following:
Italy was aware of his presence in Canada; it commenced and concluded a trial
of the respondent in his absence; after his appeal rights in Italy had been
exhausted, it commenced extradition proceedings; and, state actors should be
taken to have intended the results they achieved.  While the respondent alleges
that Italy deliberately orchestrated the proceedings to deprive the respondent
of the right to a fair trial and to use evidence so obtained to support its
request for extradition, he has not provided any basis upon which to raise such
allegations from conjecture and speculation to the "air of reality" necessary
to warrant embarking on a Charter hearing.  Particularly given that committal
hearings are intended to be an expeditious determination of whether the
requesting state's evidence meets the prima facie standard test, I conclude
that the respondent has failed to persuade me that there is sufficient
potential merit to his claim to justify a hearing into this aspect of his
Charter application. 

[60]  In the event I am wrong in this regard, however, I would nevertheless
have declined to permit the Italian lawyers to testify on the grounds that
their evidence is not logically probative as discussed below. 

[74]            As to the jurisdiction to entertain the s. 7 Charter challenge
to s. 47(b), the judge said in Ruling No. 6, 2003 BCSC 1099:

[13]  I have no hesitation in concluding that I do not have jurisdiction to
consider the constitutionality of s. 47(b) of the Act.  Section 25 of the Act
limits my Charter jurisdiction to "functions that the judge is required to
perform in applying this Act".  The Supreme Court of Canada has also made it
amply clear in the passages from United States of America v. Kwok, [(2001), 152
C.C.C. (3d) 225], and United States of America v. Cobb, [(2001), 152 C.C.C.
(3d) 270], cited above that the extradition judge does not have plenary Charter
jurisdiction, but that rather, his Charter jurisdiction is restricted to
matters relevant to the committal stage of the extradition process.  Section
47(b) has absolutely no bearing on the committal hearing, pertaining as it does
to Ministerial discretion whether to order surrender after an order for
committal has been issued.  It is therefore inappropriate for me to rule on the
constitutionality of this provision.

[75]            With respect, this conclusion is soundly based on the law and I
would not interfere with it.

Judicial Review of the Surrender Order

[76]            As with the grounds on appeal, I will begin this section by
addressing the most important point taken by Seifert.  

8.         Reasonable Apprehension of Bias  

[77]            The concern for bias is said to be related to the Minister's
discretion provided in s. 44(1)(a) of the Act:

 

44. (1)  The Minister shall refuse to make a surrender order if the Minister is
satisfied that 

(a)  the surrender would be unjust or oppressive having regard to all the
relevant circumstances; 

[78]            As mentioned earlier, Seifert's argument is that as a former
advocate for Jewish causes related to the Holocaust and the necessity of
bringing Nazi war criminals to justice, the Honourable Irwin Cotler could not
be seen as fair-minded in addressing the question whether it would be unjust or
oppressive to extradite an elderly man who led a blameless life in Canada for
over 50 years for matters that occurred in 1944 and 1945.  The argument also
extends to the other submissions alleging breaches of fundamental justice by
Italy. 

[79]            In submissions to the Minister, Seifert's counsel produced a
number of materials such as news reports, a speech to a human rights
conference, and commentaries on the campaign of Mr. Cotler (then a law
professor) on behalf of B'Nai Brith and the Canadian Jewish Congress to keep
the memory of the Holocaust alive and to pursue war criminals associated with
it.

[80]            Counsel for Seifert requested wide-ranging disclosure of the
Minister's prior advocacy, which was denied.

[81]            In one submission, counsel produced a list of prior activities
said to give rise to an apprehension of bias: 

4.         The Minister presently has established a long track record of
connection to and advocacy of the State of Israel, particulars of which are as
follows:

a)         family connections and identity at the ceremony of swearing in;

b)         educational background;

c)         lobbying efforts on behalf of the State of Israel;

d)         applications in Israeli courts;

e)         dealing with the case of John Demjanjuk;

f)          political statements identifying "Nazi Hunting" as a necessary
result of prosecution of Second World War Criminals;

g)         direct iecuted more quickly;

q)         Mr. Cotler's public statements as Minister connecting anyone who may
escape conviction under the law with Holocaust denial;

r)          Mr. Cotler's statements at the Stockholm International forum on the
Holocaust in January 2000;

s)         the inequality in treatment between Soviet and Nazi war criminals
commented on January 21, 2004 in the Kingston Whig-Standard and the Carleton
University School of Journalism Capital News.  

5.         From the foregoing public utterances, it is entirely clear that Mr.
Cotler has politically identified himself with the necessity to find guilt for
political, religious, and political reasons.  Notwithstand­ing the
probability that a trial may not be adequate, Mr. Cotler has identified himself
with the view that punishment is essential.  This general perception, amply
demonstrated by the foregoing observations, supported by the specific Schedule
of actual statements attached, would clearly demonstrate to any reasonable
person that it would be impossible for Mr. Cotler to exercise impartiality in
the case of Michael Seifert, charged by Italian authorities, and tried in his
absence.

[82]            In the surrender decision, the Minister answered the
apprehension of bias claim:

Reasonable Apprehension of Bias

You submit that because of statements I made and opinions I expressed, both
before and after taking office as Minister of Justice, that a reasonable person
would be apprehensive about my ability to fairly consider the issue of your
client's surrender.

You indicate that your assertions of apprehension of bias are not linked to my
identity as a Jewish person, but rather to what I have expressed or advocated
as a law professor, as a member of the Canadian Jewish Congress, as a supporter
of the State of Israel, and as Minister of Justice.

I readily concede that throughout my career I have spoken out strongly on the
need to pursue, apprehend, and bring to justice those accused of war crimes and
crimes against humanity, but I equally see no reason to recuse myself from this
case because I hold these views.  It is hardly unexpected that as Minister of
Justice, I have spoken out against impunity for those accused of serious
crimes.  This would be expected of any Minister of Justice.  Your assertion
that I have advocated for the conviction and punishment of individuals accused
of war crimes regardless of the merits of the case against them is unfounded.
My well-known commitment to human rights, both as Minister of Justice and
previously, speaks for itself.

The Supreme Court recognized in Arsenault-Cameron v. Prince Edward Island,
[1999] 3 S.C.R. 851 that the duty of impartiality imposed on judges does not
require that they have no sympathies or opinions, but rather that they keep an
open mind.  In my view, this principle applies with equal or perhaps greater
justification to the performance of the duties assigned to me by the Act,
considering that my role in deciding surrender is political rather than
judicial in nature and "falls at the extreme legislative end of the continuum
of administrative decision making" (Idziak v. Canada (Minister of Justice),
[1992] 3 S.C.R. 631.

You have not persuaded me that a reasonably informed person would be
apprehensive that my personal views would in any way impair my ability to carry
out my responsibilities according to law and to fairly and with an open mind,
consider Mr. Seifert's case in accordance with the principles of fundamental
justice.  Moreover, I am satisfied that in the context of my political function
as Minister of Justice, I have complied with the procedural safeguards that
operate in deciding the issue of surrender and, accordingly, can decide this
case without bias and with an open mind.

[83]            For the reasons that follow, I think that was a satisfactory
answer.  What emerges on a review of the materials supporting the bias claim is
a persistent and urgent theme:  that there must be no impunity for war crimes.
That is hardly a controversial proposition.  Canada was a prominent player on
the international stage in promoting the Rome Statute of the International
Criminal Court, for the very purpose of preventing impunity.  One of the
recitals to the preamble of the statute reads:

PREAMBLE

            The States Parties to this Statute,

* * *

            Determined to put an end to impunity for the perpetrators of these
crimes and thus to contribute to the prevention of such crimes,

* * *

            Resolved to guarantee lasting respect for and the enforcement of
international justice,

            Have agreed as follows: ....

[84]            One scholar, in an article entitled "Redressing Impunity for
Human Rights Violations: The Universal Declaration and the Search for
Accountability", 26 Denv. J. Int'l L. & Pol'y 591 at 595, defined impunity:  


III.  THE NATURE OF IMPUNITY

            One authoritative United Nations rapporteur has defined impunity as
"the impossibility, de jure or de facto, of bringing the perpetrators of human
rights violations to account ? whether in criminal, civil, administrative or
disciplinary proceedings ? since they are not subject to any inquiry that might
lead to them being accused, arrested, tried and if found guilty, convicted."
Impunity, then, means exemption or freedom from punishment and connotes the
lack of effective remedies for victims of crimes.  Within the context of human
rights law, impunity implies the lack of or failure to apply remedies for
victims of human rights violations.

[Emphasis added.]

[85]            Consistent with its international commitments, Canada enacted
the Crimes Against Humanity and War Crimes Act, S.C. 2000 c. 24, the full title
of which is:

An Act respecting genocide, crimes against humanity and war crimes and to
implement the Rome Statute of the International Criminal Court, and to make
consequential amendments to other Acts

[86]            The goal pursued by the Minister in his prior life was the
achievement of what has become an international norm and one which Canada has
embraced.

[87]            As the Minister asserted in the passage quoted above, there is
nothing in his record that advocates punishment for war crimes regardless of
the merits.  Neither could I find any expression of a position that would
negate the operation of the discretion in s. 44(1)(a) of the Extradition Act in
the case of an alleged war crime.

[88]            The Minister said in his decision that he brought an open mind
to his consideration of the case.  As a Minister of the Crown, he takes on the
mantle of office and leaves behind the role of advocate, but he is not required
to abandon his beliefs and convictions and they can operate within the duty of
fairness in the political exercise of his surrender function.

[89]            In Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R.
851, Bastarache J. was asked to recuse himself on a reasonable apprehension of
bias arising from past writings on the area relating to the appeal.  In reasons
dismissig the motion, he wrote, at paras. 2-3:  


            The test for apprehension of bias takes into account the
presumption of impartiality.  A real likelihood or probability of bias must be
demonstrated (R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paras. 11 and 113).  I
find nothing in the material submitted by the applicant that would cause a
reasonable person who understands the complex and contextual issues to believe
that I would not entertain the various points of view with an open mind. 

            Given the nature of the aforesaid material, it is fitting to quote
Cory J. in S. (R.D.), at para. 119, on the relevance of past experience to the
question of apprehension of bias: 

            The requirement for neutrality does not require judges to dhat the
judge have no sympathies or opinions; it requires that the judge nevertheless
be free to entertain and act upon different points of view with an open mind.

(Canadian Judicial Council, Commentaries on Judicial Conduct (1991), at p. 12.)

It is obvious that good judges will have a wealth of personal and professional
experience, that they will apply with sensitivity and compassion to the cases
that they must hear.  The sound belief behind the encouragement of greater
diversity in judicial appointments was that women and visible minorities would
bring an important perspective to the difficult task of judging.  See for
example the discussion by the Honourable Maryka Omatsu, "The Fiction of
Judicial Impartiality" (1997), 9 C.J.W.L. 1. See also [Richard F. Devlin, "We
Can't Go On Together with Suspicious Minds: Judicial Bias and Racialized
Perspective in R. v. R.D.S." (1995), 18 Dalhousie L.J. 408], at pp. 408-9.

[90]            The political aspect of the Minister's role was described this
way in Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631 at 659:  

            Parliament chose to give discretionary authority to the Minister of
Justice.  It is the Minister who must consider the good faith and honour of
this country in its relations with other states.  It is the Minister who has
the expert knowledge of the political ramifications of an extradition decision.
In administrative law terms, the Minister's review should be characterized as
being at the extreme legislative end of the continuum of administrative
decision-making.  

[91]            In Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, 2003
SCC 45, the Band, which was unsuccessful on the appeal, [2002] 4 S.C.R. 245,
2002 SCC 79, moved for an order vacating the judgment on the basis that Mr.
Justice Binnie, who participated in the judgment, was disqualified by reason of
his involvement in the case as Associate Deputy Minister of Justice 20 years
earlier.  The court refused the motion, having found no reasonable appre am
unable to say that the Minister's prior involvement in causes related to war
crimes meets that test.

[92]            I am unable to say that the Minister's prior involvement in
causes related to war crimes meets that test.

9.         Refusal of Disclosure and an Oral Hearing  

[93]            The Minister had a discretion whether to provide disclosure or
conduct an oral hearing as requested.  Seifert has not demonstrated to my
satisfaction that either was necessary for a fair process.  

[94]            In this regard, I respectfully adopt what was said by the
Ontario Court of Appeal in United States of America v. Whitley (1994), 94
C.C.C. (3d) 99 at 112, aff'd [1996] 1 S.C.R. 467, 104 C.C.C. (3d) 447:

            In making his surrender decision, the Minister did owe a duty of
fairness to the appellant. This duty exists at common law and is one of the
principles of fundamental justice in s. 7 of the Charter.  In the event the
Minister breaches his duty, this court has jurisdiction to grant relief under
s. 25.2(7) of the Act and by reference, s. 18.1(4)(b) of the Federal Court Act.

            But the content of an administrative decision-maker's duty of
fairness varies depending on the nature of the proceedings, the consequences of
the decision for the individual affected and any applicable statutory
provisions: Knight v. Indian Head School Division No. 19 (1990), 69 D.L.R.
(4th) 489, [1990] 1 S.C.R. 653, 43 Admin. L.R. 157, and Syndicat des Employes
de Production du Quebec et de L'Acadie v. Canada (Canadian Human Rights
Commission) (1989), 62 D.L.R. (4th) 385, [1989] 2 S.C.R. 879, 11 C.H.R.R. D/1.
The Minister's surrender decision is political in nature, not judicial.  It
lies at the legislative end of the spectrum of administrative decision-making.
The Minister is obligated to ensure that a fugitive has adequate disclosure of
the case against him and a reasonable opportunity to state his or her own case.
The Minister, however, is not obligated to hold an oral hearing nor is he
required to provide the kind of disclosure or the kind of procedural safeguards
applicable in judicial proceedings.  He is not bound by the record before the
extradition judge but may consider other material relevant to the exercise of
his discretion, and he is not even obligated to provide detailed reasons for
his decision though he certainly did so in this case:  Kindler v. Canada,
[(1991), 67 C.C.C. (3d) 1, 84 D.L.R. (4th) 438, [1991] 2 S.C.R. 779], Idziak v.
Canada (Minister of Justice) (1992), 77 C.C.C. (3d) 65, 97 D.L.R. (4th) 577, 12
C.R.R. (2d) 77 (S.C.C.). 

10.       Italy's Conduct - Abuse of Process?

[95]            The principal allegation of abuse is the decision to proceed
with a trial before extradition.  At paragraph 73 of these reasons, I have set
out the judge's opinion on the sequence of proceedings.  The Minister said in
his decision that Seifert cannot be heard to complain about in absentia
proceedings he refused to join: 

A review of the judgment of the Italian trial court indicates that it
considered the evidence and defences put forward, entered acquittals on six of
the fifteen charges, and satisfied itself that the offences on which
convictions were entered were "established and proved".

Nevertheless, I must consider whether surrendering Mr. Seifert in these
circumstances would cause him to face a situation which is "simply
unacceptable".

In Canada, criminal trials generally require the presence of the accused.
However, the right to be present at one's trial is not absolute.  It can be
waived, allowing the trial to proceed in the absence of the accused, if he or
she absents himself or herself from trial or interrupts the proceedings so that
continuation in his or her presence would not be feasible (R. v. Czuczman
(1986), 26 C.C.C. (3d) 43 (Ont. C.A.).

As noted previously, Italian authorities took reasonable steps to notify Mr.
Seifert of his trial.  Having been notified of the proceedings, he simply chose
to have the trial proceed in his absence, without even instructing
court-appointed counsel.

With respect to your claim that Mr. Seifert was unable to defend himself, I
note that defence counsel was appointed by the court to act for Mr. Seifert at
his trial, that counsel asked questions of the witnesses and made submissions
on Mr. Seifert's behalf, and that Mr. Seifert was, in fact, acquitted on 6 of
the 15 charges for which he was tried.

Further, I note that, with the assistance of counsel he retained, Mr. Seifert
appealed the conviction.  He retained a second lawyer to act for him on the
appeal in July 2001.  On October 18, 2001, the Military Court of Appeal
dismissed Mr. Seifert's appeal.  He further appealed to the Supreme Court of
Causation [Cassation], the final appellate court, with the assistance of
counsel.  That appeal was also dismissed.

As the Court of Appeal for Ontario noted in R. v. Czuczman, supra, Mr. Seifert
should not be able to thwart the rights of others and of society by
deliberately not participating at his trial.  

[96]            I agree with these remarks.

[97]            It was also argued that there was an inordinate delay in making
the request for extradition.  The record shows that Italy moved promptly when
they discovered Seifert's whereabouts.  There is no merit in the argument that
Italy's conduct amounts to an abuse of process.  

11.       Unjust or Oppressive?

[98]            In applying his mind to s. 44(1)(a) of the Act, the Minister
considered all of Seifert's personal and family circumstances bearing on the
question:  age, health, family connections, his good behaviour in Canada and
his reputation in the community.  The Minister referred to the leading case on
the subject:  United States of America v. Burns, [2001] 1 S.C.R. 283, 151
C.C.C. (3d) 97, 2001 SCC 7.

[99]            The Minister concluded with this: 

The convictions for which Mr. Seifert is wanted for the enforcement of sentence
are serious.

If Mr. Seifert is not surrendered, Canada would be denying its extradition
partner's legitimate treaty request and allowing Mr. Seifert to escape justice
(U.S.A. v. Cotroni, [1989] 1 S.C.R. 1469).

I am also mindful that it is important that Canada not be a safe haven for
fugitives from justice, including its own citizens.  The Supreme Court of
Canada emphasized this in United States v. Burns, supra.

Neither the fact that Mr. Seifert's family members will suffer from the loss of
a husband and father nor the support shown by members of the community would,
in my view, justify a refusal of surrender in this case.

[100]        The standard of review of the Minister's decision whether
surrender would be unjust or oppressive is correctness:  Ganis v. Canada
(Minister of Justice), 216 C.C.C. (3d) 337, 2006 BCCA 543.  

[101]        Seifert must be accountable for his criminal acts.  They are high
crimes of the worst order.  They overwhelm his personal circumstances.  It is
not unjust or oppressive for him to face the consequences of nine murders
accompanied by extreme cruelty.  I think the Minister was correct in his
determination under s. 44(1)(a).

12.       Parallel Proceedings

 

[102]        The extradition and the Citizenship revocation proceedings did not
cross over in any way.  Since the evidence in one did not appear in the other,
it cannot be said that Seifert was prejudiced in any way.  


[103]        The proceedings were also independently pursued without
coordination between government departments or between the respective officials
acting in concert.  


[104]        Each was validly based on separate grounds:  criminal conduct in
Italy for extradition; and making a false declaration on emigrating to Canada
in the case of the revocation.  


[105]        Seifert's rights in the extradition were not compromised by the
revocation.  


13.       Dissolution of Parliament

 

[106]        The proposition that the Minister lost the authority to issue the
surrender order when Parliament was dissolved is unsupported by reason or
authority.  It is said that the Minister lost his mandate.  If that were so,
all governance would grind to a halt until the next election, which is absurd.

 

[107]        It is sufficient to refer to Professor Hogg's text, Constitutional
Law of Canada, 4th ed. (Toronto: Carswell, 1997) at 256: 


The period between the dissolution of one House of Commons and the election of
another may be as long as several months, but the government must remain in
office and exercise its functions: the country cannot be left without any
government at all.  


Disposition

[108]        I would dismiss the appeal and the petition for judicial review.

                                              The Honourable Mr. Justice Donald

I agree:  
The Honourable Madam Justice Huddart

I agree:  
The Honourable Mr. Justice Smith


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