Ontario's highest court has rejected Karlheinz Schreiber's latest bid to stave off extradition.
For nearly a decade Mr. Schreiber has been fighting extradition to Germany, where he faces charges of fraud, bribery, corruption and tax evasion.
During a hearing Friday, government lawyers asked the Ontario Court of Appeal to quash Mr. Schreiber's latest bid and the court agreed in a decision released just hours later.
"While this application is creative and inventive it's based on fiction," government lawyers told the court.
Mr. Schreiber's lawyer, Edward Greenspan, wanted a judicial review of what he said is Justice Minister Rob Nicholson's failure to respond to a submission he made to the minister in April.
In the April 20 letter, Mr. Greenspan said Canada's extradition treaty with Germany was never ratified, and may not be enforceable. But at the same time, Greenspan maintains, the treaty - if enforceable - permits German nationals to be tried in Canada.
Despite repeated attempts, Mr. Greenspan said he has not been able to get an answer from Mr. Nicholson, other than to say he is considering the matter.
"Why is it so difficult to get a response?" Mr. Greenspan said in court.
However, in one letter from the minister Mr. Greenspan suggested the wording leads one to believe Nicholson had already reached a decision, which should therefore be subject to judicial review.
"The Minister of Justice is playing word games with us," Mr. Greenspan said.
He said he believes Mr. Nicholson plans to extradite Mr. Schreiber without giving him a decision on the treaty issue, though Mr. Greenspan admitted Mr. Nicholson has no legal obligation to respond to late submissions, such as the one made on April 20.
Department of Justice lawyers say the minister has repeatedly said he is still considering the submission, and there is "absolutely no factual basis" for this latest application.
The panel of Appeal Court judges agreed, saying the evidence doesn't support Mr. Schreiber's claim that Nicholson's failure to so far respond to the submissions means he never will.
"It is clear that the minister has given an unqualified commitment to Mr. Schreiber's counsel to respond to Mr. Schreiber's further submissions, regardless of whether the minister is legally obliged to do so," the panel wrote in its decision.
"There is no reason on this record to doubt that the minister will honour his written commitment."
The government has already promised not to extradite Mr. Schreiber until the conclusion of the inquiry looking into his dealings with former prime minister Brian Mulroney, expected in late July. The report is then due Dec. 31.
Still, Mr. Greenspan said he worries Mr. Schreiber will be whisked away in the dead of night before Mr. Nicholson responds to his submissions. Once he is extradited the court has no jurisdiction, he said.
"The moment he's in the air it's over," Mr. Greenspan said in court.
Mr. Justice James MacPherson replied, "They can't put him in the air before you get a response."
Mr. Greenspan asked why not and Judge MacPherson said, "they shouldn't."
"There is no sanction against the minister should he just send [Mr. Schreiber]out of Canada," Mr. Greenspan said.