Case information
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32842
Minister of Justice of Canada v. Henry Fischbacher
(Ontario) (Criminal) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2009-10-21 | Appeal closed | |
| 2009-10-19 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2009-10-19 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2009-10-16 |
Judgment on the appeal rendered, CJ Bi LeB De F Abe Cha Ro Cro, The appeal from the judgment of the Court of Appeal for Ontario, Number C48582, 2008 ONCA 571, dated August 1, 2008, heard on June 16, 2009, is allowed and the order of the Court of Appeal is set aside. The Minister’s surrender order is restored. Allowed |
|
| 2009-07-03 | Transcript received, (65 pages) | |
| 2009-06-16 | Judgment reserved OR rendered with reasons to follow | |
| 2009-06-16 |
Hearing of the appeal, 2009-06-16, CJ Bi LeB De F Abe Cha Ro Cro Judgment reserved |
|
| 2009-06-16 | Acknowledgement and consent for video taping of proceedings, All parties consented | |
| 2009-06-16 | Respondent's condensed book, Filed in Court June 16/09 | Henry Fischbacher |
| 2009-06-16 | Appellant's condensed book, Filed in Court June 16/09 | Minister of Justice of Canada |
| 2009-06-03 | Notice of appearance, Janet Henchey and Nancy Dennison will be appearing | Minister of Justice of Canada |
| 2009-05-25 | Correspondence received from, (Letter Form), Jeffrey Beedell dated May 25, 2009. Re: replace Tab 3 and Tab 35 (Sent to the Court on May 26, 2009) | Henry Fischbacher |
| 2009-05-15 | Respondent's book of authorities, (11 corrected copies received May 19, 2009), CD missing - Rec'd on May 25, 2009, Completed on: 2009-05-26 | Henry Fischbacher |
| 2009-05-15 | Respondent's factum, CD missing - Rec'd on May 25, 2009, Completed on: 2009-05-26 | Henry Fischbacher |
| 2009-05-08 | Response to the motion to adjourn the hearing of the appeal, (Letter Form), from Janet Hinchey dated May 8/09, Completed on: 2009-05-08 | Minister of Justice of Canada |
| 2009-05-08 | Order on motion to adjourn the hearing of the appeal, (BY BINNIE J.) | |
| 2009-05-08 |
Decision on motion to adjourn the hearing of the appeal, Bi, UPON APPLICATION by the respondent for an order extending the time to serve and file its record, factum and book of authorities to May 15, 2009, presenting oral argument at the hearing of the appeal and adjourning the appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: 1) The motion is granted. 2) The time to serve and file the respondent's record, factum and book of authorities is extended to May 15, 2009. The respondent is also permitted to present oral argument at the hearing of the appeal. 3) The appeal is adjourned and shall be scheduled to be heard June 16, 2009. Granted |
|
| 2009-05-08 | Submission of motion to adjourn the hearing of the appeal, Bi | |
| 2009-05-08 | Motion to adjourn the hearing of the appeal, (joint with an extension of time to file the respondent's factum to May 15/09 and to make oral argument), Completed on: 2009-05-08 | Henry Fischbacher |
| 2009-05-07 | Correspondence received from, V. Rondinelli, dated May 7/09; re: adjourning the appeal | Henry Fischbacher |
| 2009-05-01 | Notice of appearance, Gregory Lafontaine and Vincenzo Rondinelli will be present at the hearing. New notice of appearance received June 4/09 and there is no changes | Henry Fischbacher |
| 2009-04-17 | Appeal perfected for hearing | |
| 2009-04-09 | Order on motion for leave to intervene, (BY ROTHSTEIN J.) | |
| 2009-04-09 |
Decision on the motion for leave to intervene, Ro, UPON APPLICATION by Abdellah Ouzghar for leave to intervene in the above appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion for leave to intervene of Abdellah Ouzghar is dismissed. Dismissed |
|
| 2009-04-09 | Submission of motion for leave to intervene, Ro | |
| 2009-04-03 | Reply to the motion for leave to intervene, Completed on: 2009-04-03 | Abdellah Ouzghar |
| 2009-03-27 | Response to the motion for leave to intervene, (bookform), Completed on: 2009-03-27 | Minister of Justice of Canada |
| 2009-03-27 | Response to the motion for leave to intervene, (Letter Form), from Mr. Lafontaine dated March 27/09, Completed on: 2009-03-27 | Henry Fischbacher |
| 2009-03-19 | Intervener's book of authorities, (on motion only), Completed on: 2009-03-19 | Abdellah Ouzghar |
| 2009-03-19 | Motion for leave to intervene, (book form), Completed on: 2009-03-19 | Abdellah Ouzghar |
| 2009-03-02 | Notice of hearing sent to parties | |
| 2009-03-02 |
Appeal hearing scheduled, 2009-06-16, previously May 13, 2009 (Starting time 9:30 a.m.) Judgment reserved |
|
| 2009-02-20 | Appellant's book of authorities, (2 volumes), Completed on: 2009-02-20 | Minister of Justice of Canada |
| 2009-02-20 | Appellant's record, Completed on: 2009-02-20 | Minister of Justice of Canada |
| 2009-02-20 | Appellant's factum, Completed on: 2009-02-20 | Minister of Justice of Canada |
| 2009-01-16 | Notice of appeal, CD missing - Rec'd on Jan. 22, 2009, Completed on: 2009-01-22 | Minister of Justice of Canada |
| 2008-12-22 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted) | |
| 2008-12-19 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2008-12-19 | Judgment on leave sent to the parties | |
| 2008-12-18 |
Judgment of the Court on the application for leave to appeal, The application for an extension of time to serve and file the respondent’s response is granted. The application for an extension of time and the application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C48582, 2008 ONCA 571, dated August 1, 2008, are granted. Granted |
|
| 2008-12-18 |
Decision on motion to extend time, to serve and file the respondent's response Granted |
|
| 2008-12-18 |
Decision on motion to extend time to file and /or serve the leave application Granted |
|
| 2008-12-01 | All materials on application for leave submitted to the Judges, LeB De Cha | |
| 2008-12-01 | Submission of motion to extend time to file and/ or serve the leave application, LeB De Cha | |
| 2008-12-01 | Submission of motion to extend time, LeB De Cha | |
| 2008-11-20 | Motion to extend time, to file the respondent's response to Nov.7/08, Completed on: 2008-12-09 | Henry Fischbacher |
| 2008-11-17 | Applicant's reply to respondent's argument, Completed on: 2008-11-17 | Minister of Justice of Canada |
| 2008-11-07 | Respondent's response on the application for leave to appeal, Completed on: 2008-11-25 | Henry Fischbacher |
| 2008-10-15 | Response to the motion to extend the time to file and / or serve the leave application, consent, Completed on: 2008-10-15 | Henry Fischbacher |
| 2008-10-09 | Letter acknowledging receipt of a complete application for leave to appeal | |
| 2008-10-01 | Motion to extend the time to file and or serve the application for leave to appeal, Completed on: 2008-10-01 | Minister of Justice of Canada |
| 2008-10-01 | Application for leave to appeal, Completed on: 2008-10-01 | Minister of Justice of Canada |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Minister of Justice of Canada | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Fischbacher, Henry | Respondent | Active |
Counsel
Party: Minister of Justice of Canada
Counsel
Janet Henchey
Suite 3400, Box 36
130 King Street West
Toronto, Ontario
M5X 1K6
Telephone: (416) 954-8032
FAX: (416) 973-4328
Email: nancy.dennison@justice.gc.ca
Agent
Bank of Canada Building
234 Wellington Street, Room 1161
Ottawa, Ontario
K1A 0H8
Telephone: (613) 957-4763
FAX: (613) 954-1920
Email: robert.frater@justice.gc.ca
Party: Fischbacher, Henry
Counsel
Vincenzo Rondinelli
127 John Street
Toronto, Ontario
M5V 2E2
Telephone: (416) 204-1835
FAX: (416) 204-1849
Email: greg@127john.com
Agent
300 - 50 O'Connor St
Ottawa, Ontario
K1P 6L2
Telephone: (613) 232-7171
FAX: (613) 231-3191
Email: emeehan@langmichener.ca
Summary
Keywords
None.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Extradition - Whether elements of foreign offence and Canadian offence must match before allowing extradition - Whether misalignment may arise between Canadian offence for which fugitive is committed and foreign offence for which fugitive is surrendered - Whether a misalignment test separate and apart from double criminality applies - Whether Minister must undertake comparative analysis between Canadian criminal law and the penal law of the requesting state.
The United States seeks to extradite the Respondent to stand trial in Arizona for first degree murder. Allegedly, the Respondent beat and drowned his wife during a fight in their house in Arizona. The authority to proceed sought his committal for extradition based on the Canadian offence of “murder, contrary to section 231 of the Criminal Code”.
The extradition judge held that the record of the case establishes a prima facie case that Fischbacher murdered his wife. However, he held that the reference in the authority to proceed simply to “murder” indicated intent to seek extradition based only on the Canadian offence of second degree murder. He refused a request to amend the authority to cite first degree murder because the United States had presented no evidence that would constitute planning and deliberation under Canadian law. He ordered committal only in respect of second degree murder. There was no appeal from that order. The Minister held that the distinction in Canada between first and second degree murder is only a sentencing provision and he ordered Fischbacher’s surrender in respect of first degree murder. Fischbacher sought judicial review. The Court of Appeal found “misalignment” between the committal order and the surrender order. It quashed the surrender order and remitted the matter back to the Minister for reconsideration.
Lower court rulings
Ontario Superior Court of Justice
636C/06
Applicant committed for extradition to United States on the offence of second degree murder
Court of Appeal for Ontario
C48582, 2008 ONCA 571
Application for judicial review allowed, surrender order quashed, matter remitted to Minister for reconsideration
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
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Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
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