The extradition case concerns a BC man accused of sending fentanyl to US soldiers who then overdosed
The Attorney General of Canada can appeal a lower court’s ruling that an Extradition Act provision about deadline extensions is “unconstitutionally vague,” the British Columbia Court of Appeal ruled in a split decision Thursday, adding it is not an abuse of process for the appeal and a related extradition case to proceed in court at the same time.
However, a BCCA majority ultimately overturned the lower court’s ruling on the constitutionality of the Extradition Act provision, setting aside the court’s declaration that the provision is invalid.
A third justice, Janet Winteringham, disagreed with this latter finding. She argued that the lower court correctly assessed that the provision was unconstitutional.
The case can be traced back to 2019, when a US federal court issued a warrant for the arrest of Thomas Michael Federuik, a BC resident whom the US government accused of sending fentanyl to two US soldiers in Georgia. Both soldiers died of overdoses days after receiving the fentanyl.
In 2022, the US government asked the Minister of Justice to extradite Federuik. The Minister authorized the Attorney General of Canada to apply for a provisional arrest warrant on behalf of the US government under the Extradition Act. Federuik was arrested two days later.
Under the Extradition Act, the US government had to submit a formal extradition request to the BC Supreme Court within 60 days of the provisional request. However, the attorney general, acting on behalf of the US, did not submit the formal request until two days past the deadline.
Months later, the attorney general filed an application to extend the deadline under s. 14(2)(a) of the Extradition Act, which states that a judge “may extend” deadlines related to certain extradition matters upon the attorney general’s request. Federuik responded by asking the court to declare that s. 14(2)(a) was unconstitutionally vague and therefore violated the Canadian Charter of Rights and Freedoms’ guarantee of life, liberty, and security of the person.
The BC Supreme Court agreed with Federuik, ruling that s. 14(2)(a) was unconstitutionally vague because it contained the word “may.” The court declared that the provision could not be enforced. Federuik was discharged.
In response, the attorney general appealed the BC Supreme Court’s finding. The attorney general also launched new extradition proceedings currently underway in the same court and applied to arrest Federuik again. Federuik countered by asking the court to quash the attorney general’s appeal.
All three justices on the panel – Winteringham, Karen Horsman, and Harvey Groberman – agreed not to quash the appeal.
The panel rejected Federuik’s argument that the BCCA did not have jurisdiction over the appeal because the attorney general was not authorized to both appeal the constitutional ruling and launch new extradition proceedings; according to Federuik, the attorney general could only choose one route or the other. Federuik also claimed that by allowing the two proceedings to take place simultaneously, the BCCA was “essentially open[ing] the door to persons sought for extradition to appeal interim rulings made by an extradition judge.”
According to the panel, however, the lower court’s ruling that s. 14(2)(a) of the Extradition Act is unconstitutional, which was not an “interim” order but a final order that could be appealed.
The panel said the proceedings on the constitutional issue had “fallen away from the original extradition proceedings because the [attorney general] recommenced those proceedings,” so the attorney general’s appeal of the constitutional issue “does not fall afoul of the ‘established practice’ limiting interlocutory appeals in criminal matters.
The panel added, “By filing a notice of appeal, the [attorney general] is not delaying the respondent’s extradition proceeding because the two matters are proceeding simultaneously.”
The panel also rejected Federuik’s argument that it is abusive for him to have to respond to both the constitutional appeal and the extradition proceedings, noting that Federuik was the one who initiated the constitutional challenge.
However, the justices disagreed on how to rule on the constitutionality of s. 14(2)(a). Writing for herself and Groberman, Horsman stated she disagreed with the lower court’s finding that the Extradition Act provision was unconstitutionally vague because it contained the word “may.”
“The power to extend time to take a step in a proceeding is, as previously noted, a routine feature of both criminal and civil statutes,” Horsman wrote. “Such discretion is typically expressed in broad terms, with limited or no legislative guidance to the courts as to the criteria they must apply in deciding whether to grant an extension.”
The justice added that “the lack of guidance is by design, as it permits the courts to account for the enormously broad range of factual circumstances that might arise.”
Horsman said case law can then put guardrails on how courts apply their discretion. “To my mind,” she wrote, “there is nothing unconstitutional in permitting guidance to evolve from the case law in the context of these types of procedural powers.”
Winteringham, meanwhile, wrote that in her view, the lower court’s ruling that s. 14(2)(a) is constitutional was correct.
The BC Supreme Court judge “set out the proper test for determining vagueness (the legal debate test), and after considering the legislative context (including Canada’s international treaty obligations) and determining that previous cases were unhelpful, he found the provision was unconstitutional because it violated s. 7 of the Charter,” Winteringham wrote.
In a statement on Monday, a spokesperson for the Department of Justice said, "Mr. Federuik is wanted to stand trial in the United States on charges related to alleged drug trafficking offences.
Counsel for Federuik declined to comment on the BCCA decision because the case is ongoing.
Editor's note: This story was updated on Monday, Sept. 8 with a comment from the Canada Department of Justice.
