Court of Appeal for Ontario
Date: 20231123 Docket: C68937 & C69610
Judges: Benotto, Miller and Paciocco JJ.A.
In the Matter of: an Application Under Section 29 of the Extradition Act And In the Matter of: an Application under Sections 58 and 60 of the Extradition Act
Docket: C68937
Between: The Attorney General of Canada on behalf of the United States of America Applicant (Respondent)
And: Tenzin Norbu a.k.a. Tenzin Pasang a.k.a. Passang Tsering a.k.a. Sonam Sangpo a.k.a. Tenzin Namgyal a.k.a. Tenzin Lama Respondent (Appellant)
Docket: C69610
And Between: The Attorney General of Canada on behalf of the United States of America Respondent
And: Tenzin Norbu a.k.a. Tenzin Pasang a.k.a. Passang Tsering a.k.a. Sonam Sangpo a.k.a. Tenzin Namgyal a.k.a. Tenzin Lama Appellant
Counsel: Leo Adler and Kevin Gray, for the appellant Roy Lee and Heather Graham, for the respondent
Heard: May 11, 2023
On an appeal from the order of committal entered by Justice Sean F. Dunphy of the Superior Court of Justice, dated November 30, 2020, with reasons reported at 2020 ONSC 7360 (C68937).
On application for judicial review of the surrender order of the Minister of Justice, dated May 4, 2021 (C69610).
B.W. Miller J.A.:
[1] Tenzin Norbu appeals a committal order to await his surrender to the United States of America to stand trial on charges arising from an immigration fraud scheme. He also seeks judicial review of a surrender order of the Minister of Justice (the “Minister”). For the following reasons, I would dismiss both the appeal and the application.
Procedural History
[2] The Minister authorized the Attorney General of Canada to seek the appellant’s committal for extradition to the United States of America. The appellant is alleged to have prepared and sold fraudulent documentation to applicants who were seeking asylum in the United States. The applications are said to have falsely claimed that the applicants were Tibetans persecuted by the Chinese government. The appellant is said to have provided the applicants with false Tibetan identity documents and false narratives of persecution to use in asylum interviews. The appellant is alleged to have been paid thousands of dollars for each application.
[3] The Record of the Case for Prosecution (the “ROC”) provides a summary of the evidence of three representative witnesses who will testify that the appellant assisted them in the preparation of false asylum claims. U.S. law enforcement purportedly showed two of those witnesses a photograph of the appellant, whom the witnesses identified as the person who prepared their fraudulent documents. The photograph was attached to the ROC, but the ROC does not state the source of the photograph. The ROC also includes a summary of the expected testimony of a U.S. immigration officer describing allegations made against the appellant with respect to up to 34 fraudulent applications, including those of the three representative witnesses.
[4] On November 30, 2020, the extradition judge ordered that the appellant be committed for extradition. The main issues at the hearing were (1) identification; and (2) whether there was sufficient evidence to commit the appellant for the fraudulent scheme alleged, beyond the allegations involving the three identification witnesses.
[5] The extradition judge was satisfied that the evidence of two witnesses, D.N. and S.T., would be sufficient to identify the appellant as the perpetrator of the offences, and that this evidence was capable of supporting an order for committal. He was satisfied that the appellant was the person sought for extradition.
[6] The extradition judge was also satisfied that there was a sufficient connection between the fraudulent applications of the three representative witnesses whose evidence was provided in the ROC and the documentation of the other 31 applicants that committal was warranted for all 34 counts.
[7] At the Ministerial stage, the appellant argued against surrender on various bases, including that extradition to the U.S. could expose him to subsequent deportation to China, where he would face a risk of persecution. In the alternative, he argued that assurance should be sought from the U.S. that he not be deported to China.
[8] On May 4, 2021, the Minister ordered the appellant’s unconditional surrender to the U.S.
[9] At the time the surrender order was made, the appellant had been denied a refugee claim by the Refugee Protection Division of the Immigration and Refugee Board and his appeal was pending. On October 20, 2021, the appeal was allowed and the appellant was declared to be a Convention refugee. On the strength of that determination, the appellant sought reconsideration of the surrender decision. On July 7, 2022, the Minister issued a reconsideration decision, reasoning that, as the original decision had assumed the appellant faced persecution in China, there was no reason to change the original disposition. The Minister also noted that Convention refugee status in fact reduced the risk that the appellant would be removed to China from the U.S.
The Appeal of the Committal Order
A. Issues
[10] On appeal of the committal order, the appellant essentially renews the two arguments that were dismissed below; namely, that the application judge erred in finding that there was sufficient evidence to establish that:
- the appellant was the person who is alleged to have committed the offences and is sought for extradition; and
- the appellant (or rather, the person alleged to have committed the offences) knew that the applications of the 31 persons who did not provide affidavits were fraudulent.
[11] I am unpersuaded that the application judge made either error.
B. Analysis
(1) There was sufficient identification evidence for extradition purposes
[12] As noted, the appellant argued that the extradition judge erred in concluding that the identification evidence was sufficient to ground a committal order. He advanced three sub-arguments:
i. the name Tenzin Norbu is so exceedingly common among Tibetans, the fact that he bears the same name as the person named in the ROC cannot be sufficient evidence that he is the person sought; ii. the photo identification provided in the ROC was undated and unsourced and there was no evidence independent of the two identification witnesses to conclude that it was a photograph of the appellant; and iii. the extradition judge erred in making his own identification of the appellant at the hearing, which took place via Zoom.
[13] The role of the application judge in an extradition hearing is established and limited by statute:
[T]he role of the extradition judge is a modest one; absent express statutory or treaty authorization, the sole purpose of an extradition hearing is to ensure that the evidence establishes a prima facie case that the extradition crime has been committed.
Republic of Argentina v. Mellino, [1987] 1 S.C.R. 536, at para. 29.
[14] The criteria for committal of a person sought for prosecution abroad is set out in s. 29(1) of the Extradition Act, S.C. 1999, c. 18:
A judge shall order the committal of the person into custody to await surrender if … (a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner.
[15] An extradition hearing is not a trial. It is intended, rather, to be “an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canada’s international obligations”: United States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 122. Although an extradition judge may not refuse extradition simply because the case appears to be unlikely to succeed at trial, the extradition judge can exclude evidence that is “manifestly unreliable”: United States of America v. Ferras; United States of America v. Latty, [2006] 2 S.C.R. 77, at para. 40. This allows for a limited weighing of the evidence to determine whether the evidence adduced in the ROC is sufficient for the accused to stand trial: Ferras, at paras. 39-49 and 54.
[16] In order to justify committal for extradition, the requesting state must make out a prima facie case of the offence set out in the Authority to Proceed. Sections 32 and 33 of the Extradition Act provide that the determination of whether a prima facie case has been met may proceed on the basis of a certified summary of the evidence that is available for prosecution.
[17] With respect to establishing the identity of the person before the court, s. 37 of the Extradition Act provides that the court may accept as evidence in support of the request for extradition:
(a) the fact that the name of the person before the court is similar to the name that is in the documents submitted by the extradition partner; and (b) the fact that the physical characteristics of the person before the court are similar to those evidenced in a photograph, fingerprint or other description of the person.
[18] The appellant’s name is not merely similar but identical to the name of the person sought for extradition. The appellant does not deny this. The extradition judge accepted the evidence of the appellant’s name as some evidence in support of extradition, as he was entitled to do under s. 37(a).
[19] The appellant alleges mistaken identity, but he has not provided an evidentiary basis for that conclusion, as would be required for the argument to succeed given the evidence to the contrary: United States of America v. Odale, 2013 ABCA 178, 553 A.R. 132, at paras. 14-15, leave to appeal refused, 2013 CarswellAlta 1991. Mere assertion of the commonality of one’s name within one’s ethnic community is insufficient and the extradition judge made no error in this regard.
[20] With respect to the basis of identification provided in s. 37(b) – the similarity of the appellant’s physical characteristics to a photograph or description of the appellant – recall that the appellant takes issue with the fact that the photograph is undated and unsourced. He submits that, in any event, the person in the photograph does not resemble him and the extradition judge erred in finding otherwise.
[21] Little turns on the fact that the ROC does not disclose either its source or date. The ROC states that two witnesses will attest that this is a photo of the person with whom they were dealing, a person they knew as Tenzin Norbu. It would have been preferable if the ROC had stated the source of the photograph and explained how law enforcement officials had concluded that it was a photograph of the appellant. However, at this stage of proceeding, the requesting state is not required to prove identity beyond a reasonable doubt, and the extradition judge did not err in concluding that the identification evidence was sufficient.
[22] In arguing the appeal, the Crown included in its Appeal Book the appellant’s Supplemental Summary of the Case, which the appellant had submitted as part of his application to the Minister for reconsideration. Included in these materials is a U.S. Employment Authorization Card issued to the appellant in 2017. The photograph on the card appears to be identical to the photo attached to the ROC. The implication is that the authenticity of the ROC photograph is validated by the appellant’s own use of a similar if not identical photo in his application before the Minister. The appellant objects that the card is fresh evidence and inadmissible on appeal. The Crown concedes that this evidence was not before the extradition judge. It nevertheless argues that this court should admit the photo and take comfort from the fact that, whatever the source of the ROC photo, the appellant’s own submissions to the Minister make it impossible for him to continue to deny that the ROC photo is one of him.
[23] Nothing turns on whether the photograph from the appellant’s submission to the Minister is properly before this court. There is no requirement that the ROC provide an account of how the photograph was obtained or why the requesting state believes it to be a photograph of the appellant. The extradition judge is entitled to rely on the requesting state’s certification that the evidence summarized or contained in the ROC is sufficient under the laws of the United States to justify prosecution. This includes certification that the identification evidence is sufficient for prosecution. Whether identification is proved beyond a reasonable doubt is a matter for trial.
[24] Similarly, the extradition judge was not required to provide a detailed explanation for why he believed the person that he saw on the video screen was the same person whose photograph is contained in the ROC. The extradition judge noted dissimilarities between the photo and the person whom he observed via Zoom. He nevertheless concluded that Mr. Norbu was the person photographed. He accounted for the dissimilarities that he had noted by concluding that the photograph had been taken when Mr. Norbu was younger:
While the photograph in question is that of a younger man than Mr. Norbu as he appeared before me via video link … and in person upon the delivery of these reasons, the man before me is still identifiable by me as the man depicted in that photograph. I reach that conclusion having compared my own observations of Mr. Norbu’s features as he has appeared before me to the features of the man depicted in the photograph.
[25] The appellant argues that the extradition judge erred by failing to instruct himself as to the perils of eyewitness identification, particularly with respect to the cross-racial comparative identification of a stranger with a photograph, and by failing to note specific features of Mr. Norbu’s appearance which led him to his conclusion.
[26] The appellant demands, essentially, that his identity be proven beyond a reasonable doubt, as though the committal hearing were a trial. It is not. The extradition judge was entitled to rely on the photograph in the ROC and his visual comparison with the appellant, to satisfy himself that on a balance of probabilities the appellant is the person sought for extradition. He noted differences in appearance and accounted for them. He was not required to provide a forensic analysis of the expected effects of aging on facial appearance. The extradition judge made no error.
[27] The foregoing conclusions also dispose of the appellant’s argument that the extradition judge erred in characterizing one of the appellant’s concessions below. The extradition judge stated that the appellant conceded that the ROC described conduct by Mr. Norbu in respect of the three representative witnesses that would constitute an offence had it occurred in Canada. In fact, the concession was that, although the conduct would have constituted an offence with respect to the three representative witnesses, the appellant did not concede that the ROC properly identified Mr. Norbu. As I have held that the extradition judge made no error in concluding that the appellant was adequately identified for the purpose of committal, nothing turns on the extradition judge’s mistaken framing of the appellant’s concession.
(2) There was sufficient evidence of the appellant’s alleged fraud with respect to non-representative witnesses for extradition purposes
[28] As noted, the appellant argues that the extradition judge erred in determining that the ROC adequately set out a case against the appellant with respect to the 31 asylum applicants who were not representative witnesses. The summary of the evidence of Joseph Williams, a Supervisory Immigration Officer in the Fraud Detection and National Security Section of the United States Citizenship and Immigration Services, states that the three representative witnesses will testify that the appellant knew that the refugee narrative he wrote for them was false. But Mr. Williams does not make the same claim for the remaining 31 asylum applicants. Instead, the ROC simply relies on the allegation that the remaining applications contain “boilerplate” language in documenting the persecution that they experienced.
[29] The appellant argues that this is insufficient to warrant committal: it is entirely possible for identical boilerplate text to have been used for all 31 applicants, and for the narrative conveyed by that text to have been truthful for each of them. That is to say, it is possible for all 31 applicants to have had identical experiences of persecution from China as Tibetans. The narrative from Williams does not expressly state that the 31 applicants had lied in their applications about being Tibetan, that any of their documentation was false, or that they had not genuinely experienced persecution from China. Even if the information was false, the appellant notes that the summary of the evidence of Mr. Williams in the ROC does not state that Mr. Norbu knew that it was false. There is a possibility that Mr. Norbu had been provided with untrue information and he did not know that it was untrue.
[30] I am not persuaded that the extradition judge erred. The ROC summarizes evidence in support of the commission of offences involving the three representative applicants, but it does more than that. Taken together, the evidence of those individual offences is some evidence of a pattern of conduct that is alleged to have been repeated over an additional 31 applicants. The evidence of how the scheme operated with respect to the three representative applicants, together with the evidence that the documentation produced for the other 31 contained identical, boilerplate text, allows for a reasonable inference that those 31 applicants were part of the same, broader scheme: see e.g., United States of America v. Anekwu, [2009] 3 S.C.R. 3; United States of America v. Orphanou, 2011 ONCA 612, 107 O.R. (3d) 365; United States of America v. Beltran, 2010 ONSC 6451.
Judicial Review of the Minister’s Surrender Order
[31] The applicant argued that the surrender order was unreasonable on two bases:
i. the Minister failed to seek an assurance from the United States that if convicted the applicant would not be deported to China; and ii. the surrender order ought to have been limited to the three charges corresponding to the representative asylum applicants.
[32] I disagree. The surrender order was reasonable.
[33] The Minister concluded on reconsideration that the applicant’s surrender to the U.S. would not be unjust or oppressive or otherwise violate s. 7 of the Canadian Charter of Rights and Freedoms. The Minister did so notwithstanding the applicant’s expressed concern that he might face persecution in China if he is surrendered to the U.S. and subsequently deported to China.
[34] The decision to order or refuse surrender is discretionary. The exercise of discretion is guided by the Extradition Act and the relevant treaty with the requesting state, and subject to the Charter. Section 44(1) of the Extradition Act provides that the Minister “shall refuse to make a surrender order if the Minister is satisfied that (a) the surrender would be unjust or oppressive having regard to all the relevant circumstances”. The judicial review of such a decision is conducted on the reasonableness standard: India v. Badesha, 2017 SCC 44, 412 D.L.R. (4th) 411, at para. 39.
[35] At the time of the original surrender decision, the Minister had accepted the applicant’s refugee claim at face value. Accordingly, after the Immigration and Refugee Board subsequently determined that the applicant was a Convention refugee needing protection from China, this determination did not provide the Minister with any reason to revisit the initial decision, which the Minister affirmed.
[36] It is not the role of this court to reassess the factors considered by the Minister or substitute its own view. The Minister considered relevant factors in arriving at a decision: (a) the applicant’s fear that he may face persecution in China if he is deported there; (b) the mechanisms that would be available to the applicant both now in Canada and in the U.S. subsequent to a conviction that would provide for his return to Canada; and (c) the preferability of delaying an assessment of risk posed by a return to China to the time the prospect of any deportation actually materializes. On the Minister’s assessment, the risk of deportation is remote at best, and there is a likelihood that the applicant, bolstered by his Convention refugee status, would be returned to Canada if it occurred. There is nothing in the Minister’s reasons that invite judicial review on this ground.
[37] With respect to the argument that it was unreasonable for the Minister not to limit the surrender order only to the charges arising from the three representative asylum applicants, I see no basis to interfere with the Minister’s decision. As canvassed in the analysis of the appeal of the committal order above, there is nothing improper about the manner in which the ROC sets out the offences.
DISPOSITION
[38] I would dismiss both the appeal and the application.
Released: November 23, 2023 “M.L.B.” “B.W. Miller J.A.” “I agree. M.L. Benotto J.A.” “I agree. David M. Paciocco J.A.”