COURT OF APPEAL FOR ONTARIO
Strathy C.J.O., Doherty and Gillese JJ.A.
IN THE MATTER OF an appeal of a committal order pursuant to s. 49 of the Extradition Act, S.C. 1999, c. 18
BETWEEN
The Attorney General of Canada on behalf of The United States of America
Respondent
and
Kai Guo Huang a.k.a. Yu Chen
Appellant
Ravin Pillay, for the appellant
Nancy Dennison, for the respondent
Heard: April 14, 2015
On appeal from the committal order of Justice Harriet E. Sachs of the Superior Court of Justice, dated April 23, 2014.
ENDORSEMENT
1Kai Guo Huang (the “appellant”) appeals an order committing him for extradition to the United States to stand trial for the offences of murder and interfering with a dead human body.
2The appellant is accused of committing murder in the United States in 1998. A few days after the murder was committed, the appellant’s sister and brother-in-law (the “Witnesses”) allegedly gave police statements implicating the appellant in the murder. The Witnesses’ evidence is essential to the American murder prosecution. However, the Witnesses have since sworn affidavits denying that they made the police statements. They have returned to China and have no intention of testifying against the appellant.
3The appellant argued below that he should not be extradited because the crucial evidence of the Witnesses is not available for his murder prosecution in the United States.
4The United States (the “Requesting State”) certified that the Witnesses’ evidence is available for trial and gave details as to how. One argument that it gave was that under a treaty it has with China – the Agreement Between the Government of the United States of America and the Government of the People’s Republic of China on Mutual Legal Assistance in Criminal Matters (“MLAT”) – it could request that China compel the Witnesses to testify.
5The appellant sought to introduce the expert opinion of a law professor from China who stated that under Chinese law, authorities do not have the power to compel the Witnesses to testify in the American proceedings.
6The extradition judge held that it was not the role of an extradition judge to conduct an inquiry into foreign law to determine whether MLAT will enable the Requesting State to obtain the Witnesses’ evidence. She found that the Witnesses’ evidence was available for the murder prosecution and ordered the appellant’s committal.
7On appeal, the appellant argues that the extradition judge erred in failing to admit the expert opinion. He further argues that the committal was unreasonable. In this regard, he says that whether the Witnesses can be compelled to testify under the MLAT depends on the laws of China. The expert opinion was that Chinese law did not permit Chinese authorities to compel the Witnesses to testify at the foreign trial. Even setting aside the expert opinion, he says that the Requesting State has failed to show that the Witnesses’ evidence is available for trial. Therefore, he contends, the Witnesses’ evidence is unavailable and there is insufficient evidence to justify his committal.
8We do not agree.
9It is not the role of the extradition judge to determine issues of foreign law, absent exceptional circumstances. In McVey (Re); McVey v. United States of America, [1992] 3 S.C.R. 475, at pp. 528-29, a majority of the Supreme Court held that, except possibly in rare cases such as political offences, the extradition judge “is not concerned with foreign law at all” and requiring proof of foreign law in the extradition hearing beyond the documents supplied with the requisition “could cripple the operation of the extradition proceedings.”
10That reasoning applies in the present case.
11The Requesting State relied on the MLAT in asserting that the Witnesses’ evidence is available for the prosecution. The principles of international comity require this court to defer to the Requesting State’s interpretation of its treaty with China. The extradition judge is not in a position to determine whether a request under the MLAT will ultimately be successful. It is beyond the scope of the extradition hearing to determine the extent to which Chinese authorities, under local Chinese law, could compel the Witnesses to testify in the American prosecution.
12Accordingly, the extradition judge made no error in refusing to conduct an inquiry into foreign (Chinese) law to determine whether the MLAT will allow the Requesting State to obtain the Witnesses’ evidence.
13The appeal is dismissed.
“G.R. Strathy C.J.O.”
“Doherty J.A.”
“E.E. Gillese J.A.”