BC Court of Appeal rules that documents not directly before the decision maker did not form part of the record for purposes of judicial review

BC Court of Appeal rules that documents not directly before the decision maker in extradition case did not form part of the record for purposes of judicial review.

Administrative law – Decisions reviewed – Minister of Justice – Judicial review – Disclosure – Procedural requirements and fairness – Standard of review – Reasonableness – Appeals – Criminal matters – Extradition and repatriation

United States of America v. Rabang, [2025] B.C.J. No. 29, British Columbia Court of Appeal, January 9, 2025, P.M. Willcock, G.B. Butler and K. Horsman JJ.A.

The applicant sought judicial review of an order of surrender issued by Canada’s Minister of Justice under the Extradition Act. The applicant had submitted to the Minister that, given his Indigenous heritage, the Gladue principles should be applied to the extradition proceedings in the US, where he was to face charges for a crime. Before the hearing of his judicial review of the Minister’s decision, the applicant brought an application for an order for the disclosure of all communications between certain American authorities and the Department of Justice of Canada’s International Assistance Group (IAG) regarding the treatment of Indigenous persons in the US criminal justice system. He argued that the IAG obtained these communications to enable the Minister to address the issues and arguments raised by the applicant before rendering the surrender decision. He submitted that disclosure of these communications was required to permit the court to meaningfully review the Minister’s decision.

The BC Court of Appeal dismissed the application. It noted that the reviewing court would rely upon the record that was before the Minister to assess whether the Minister’s decision was reasonable and procedurally fair. The subject communications were not directly before the Minister, and thus did not form part of the record. Further, there was no reason to supplement the record with the communications in this case.

In its reasons, the Court also confirmed that the proper framework for considering the applicant’s disclosure application was through judicial review principles developed under the Judicial Review Procedure Act, and not through the test established in R v. Larosa. The circumstances of his application differed from those in Larosa and other cited extradition cases because he sought production of communications that came into existence for the very purpose of his surrender proceeding, not documents created outside of the surrender process and arising from state misconduct.

This case was digested by Kara Hill of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please feel free to contact her directly at [email protected].