United States of America et al. v. Yang [Indexed as United States of America v. Yang]

56 O.R. (3d) 52

[2001] O.J. No. 3577

Docket No. C35198

Court of Appeal for Ontario

Rosenberg, Moldaver and Goudge JJ.A.

September 11, 2001

Charter of Rights and Freedoms -- Fundamental justice -- Extradition -- Provisions of Extradition Act which permit admission in extradition proceedings of evidence which would not be admissible at Canadian trial because of reliability concerns and evidence which is not under oath do not violate s. 7 of Charter -- Principles of fundamental justice do not require that s. 32 of Extradition Act be read down to permit extradition judge to apply reliability test to evidence tendered by extradition partner -- Canadian Charter of Rights and Freedoms, s. 7 -- Extradition Act, S.C. 1999, c. 18, ss. 32, 33, 34.

Extradition -- Evidentiary basis -- Provisions of Extradition Act which permit admission in extradition proceedings of evidence which would not be admissible at Canadian trial because of reliability concerns and evidence which is not under oath do not violate s. 7 of Charter -- Principles of fundamental justice do not require that s. 32 of Extradition Act be read down to permit extradition judge to apply reliability test to evidence tendered by extradition partner -- Canadian Charter of Rights and Freedoms, s. 7 -- Extradition Act, S.C. 1999, c. 18, ss. 32, 33, 34.

The United States of America sought the extradition of the appellant to stand trial in the United States for attempted murder and other offences. The appellant was ordered committed for surrender. He appealed, submitting that he should not have been committed because the material placed before the extradition judge was inadmissible. The primary basis for this submission was that the provisions of the Extradition Act, S.C. 1999, c. 18 which govern the admissibility of evidence at extradition hearings violate the guarantee of fundamental justice in s. 7 of the Canadian Charter of Rights and Freedoms. Section 32 of the Act provides for the admission of evidence which would not otherwise be admissible under Canadian law if it is contained in the record of the case certified under s. 33(3). The record of the case need only contain a summary of the evidence. A judicial or prosecuting authority must certify that evidence summarized or contained in the record of the case is available for trial.

In addition, the judicial or prosecuting authority must certify either that the evidence is sufficient under the law of the extradition partner to justify prosecution or was gathered according to the law of the extradition partner. Section 34 provides that a document is admissible whether or not it is solemnly affirmed or under oath. The appellant submits that those provisions require the extradition judge to admit unreliable, unsworn evidence, and that this violates the guarantee of fundamental justice in s. 7 of the Charter.

Held, the appeal should be dismissed.

A contextual approach must be taken to applying s. 7 of the Charter. Procedure that in one context would not comport with the principles of fundamental justice may accord with those principles in an entirely different context. In identifying the principles of fundamental justice in the extradition context, the elements of reciprocity, comity and respect for differences in other jurisdictions must be taken into account. Canadian courts must not impose Canadian standards upon our extradition partners. A foreign justice system is not fundamentally unjust because it does not recognize certain safeguards that we would consider principles of fundamental justice. The Extradition Act, to a significant degree, allows the foreign state to make its extradition request in accordance with its own procedures, especially its own rules of evidence. The Act does not, on its face, infringe the s. 7 Charter rights of fugitives.

It is possible to identify certain principles of fundamental justice in the extradition context. The fugitive is entitled to a hearing before an unbiased decision maker and to be present. The fugitive has the right to know the case against him or her, including the materials relied upon to establish the prima facie case. The fugitive also has the right to participate in the hearing free of coercion from the requesting state. However, the fugitive is not entitled to any particular form of evidence. A mere common law rule does not suffice to constitute a principle of fundamental justice. Rather, principles of fundamental justice are those on which there is some consensus that they are vital or fundamental to our societal notion of justice. The hearsay rules, opinion rules or the other common law rules of evidence are not vital to our societal notion of justice in the extradition context.

Fundamental justice does not require that s. 32 of the Extradition Act be read down to permit the extradition judge to apply a reliability test to evidence tendered by the extradition partner. To impose a reliability requirement on the evidence from the foreign state in the extradition process as a matter of fundamental justice would indirectly apply the Charter extraterritorially. The extradition partner would be precluded from relying upon evidence that it had gathered in conformity with its own procedures or that, in its own jurisdiction, would be sufficient to warrant a trial and conviction. Moreover, the extradition judge would not be in a position to make the reliability determination without having a detailed knowledge of the legal system of the extradition partner and then, purportedly passing on its legitimacy. Both concepts are antithetical to the extradition process.

The fact that the impugned provisions of the Extradition Act are valid does not preclude an argument that the application of the provisions may, in a particular case, operate to violate the fugitive's rights. The extradition judge is deemed to be a court of competent jurisdiction for the purposes of the Charter by s. 25 of the Act.

The extradition judge did not err in the admission of evidence in this case.

APPEAL from an extradition order.

Bourgeon v. Canada (Attorney General) (2000), 2000 22635 (ON SC), 187 D.L.R. (4th) 542, 74 C.R.R. (2d) 33, 35 C.R. (5th) 25 (Ont. S.C.J.), not folld Kindler v. Canada (Minister of Justice) (1991), 1991 78 (SCC), 45 F.T.R. 160n, [1991] 2 S.C.R. 779, 84 D.L.R. (4th) 438, 129 N.R. 81, 6 C.R.R. (2d) 193, 67 C.C.C. (3d) 1, 8 C.R. (4th) 1 (sub nom. Kindler & Min. of Justice, Re); Schmidt v. R., 1987 48 (SCC), [1987] 1 S.C.R. 500, 61 O.R. (2d) 530n, 20 O.A.C. 161, 39 D.L.R. (4th) 18, 76 N.R. 12, 28 C.R.R. 280, 33 C.C.C. (3d) 193, 58 C.R. (3d) 1 (sub nom. Schmidt v. Canada); United States v. Burns, 2001 SCC 7, 151 C.C.C. (3d) 97, 85 B.C.L.R. (3d) 1, apld Germany v. Ebke, 2001 NWTSC 17, [2001] N.W.T.J. No. 13 (S.C.); United States v. Kwok, 2001 SCC 18, 152 C.C.C. (3d) 225, 197 D.L.R. (4th) 1; United States v. Shulman, 2001 SCC 21, 152 C.C.C. (3d) 294, 197 D.L.R. (4th) 69; United States of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462, 147 D.L.R. (4th) 399, 213 N.R. 321, 44 C.R.R. (2d) 189, 115 C.C.C. (3d) 481, 8 C.R. (5th) 79, consd Other cases referred to Argentina (Republic of) v. Mellino, 1987 49 (SCC), [1987] 1 S.C.R. 536, 52 Alta. L.R. (2d) 1, 40 D.L.R. (4th) 74, 76 N.R. 51, [1987] 4 W.W.R. 289, 28 C.R.R. 262, 33 C.C.C. (3d) 334; Artukovic v. Rison, 784 F.2d 1354 (9th Cir., 1986); Emami v. United States District Court for the Northern District of California, 834 F.2d 1444 (9th Cir., 1987); Glucksman v. Henkel, United States Marshal, 221 U.S. 505 (1911); Government of Republic of Italy v. Piperno, 1982 166 (SCC), [1982] 1 S.C.R. 320, 134 D.L.R. (3d) 53, 40 N.R. 604, 66 C.C.C. (2d) 1, 25 C.P.C. 311, 28 C.R. (3d) 97 (sub nom. Government of the Republic of Italy v. Boilard et al., Italy v. Boilard J. and Piperno); Idziak v. Canada (Minister of Justice), 1992 51 (SCC), [1992] 3 S.C.R. 631, 97 D.L.R. (4th) 577, 144 N.R. 327, 12 C.R.R. (2d) 77, 77 C.C.C. (3d) 65, 17 C.R. (4th) 161; McVey, Re, 1992 48 (SCC), [1992] 3 S.C.R. 475, 73 B.C.L.R. (2d) 145, 97 D.L.R. (4th) 193, 144 N.R. 81, [1993] 1 W.W.R. 289, 77 C.C.C. (3d) 1 (sub nom. McVey R , McVey v. United States of America); Mezzo v. R., 1986 16 (SCC), [1986] 1 S.C.R. 802, 43 Man. R. (2d) 161, 30 D.L.R. (4th) 161, 68 N.R. 1, [1986] 4 W.W.R. 577, 27 C.C.C. (3d) 97, 52 C.R. (3d) 113; Netherlands (Kingdom) v. Clarkson (2000), 2000 BCCA 461, 189 D.L.R. (4th) 1, 77 C.R.R. (2d) 20, 146 C.C.C. (3d) 482 (B.C.C.A.), affg (1998), 1998 6340 (BC SC), 59 C.R.R. (2d) 178 (B.C.S.C.); Philippines (Republic of) v. Pacificador (1993), 1993 3381 (ON CA), 14 O.R. (3d) 321, 16 C.R.R. (2d) 299, 83 C.C.C. (3d) 210, 23 C.R. (4th) 171 (C.A.) [Leave to appeal to S.C.C. refused (1994), 20 C.R.R. (2d) 192n, 17 O.R. (3d) xvi , 1994 19081 (SCC), 28 C.R. (4th) 404n, 175 N.R. 160n]; R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, 148 N.R. 241, 79 C.C.C. (3d) 257, 19 C.R. (4th) 1; R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154, 61 O.R. (2d) 654, 23 O.A.C. 241, 41 D.L.R. (4th) 746, 78 N.R. 377, 35 C.C.C. (3d) 193, 59 C.R. (3d) 97 (sub nom. Monteleone v. R.); R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, 94 D.L.R. (4th) 590, 139 N.R. 323 , 75 C.C.C. (3d) 257, 15 C.R. (4th) 133; Rodriguez v. British Columbia (Attorney General), 1993 75 (SCC), [1993] 3 S.C.R. 519, 82 B.C.L.R. (2d) 273, 107 D.L.R. (4th) 342, 158 N.R. 1, [1993] 7 W.W.R. 641, 17 C.R.R. (2d) 193, 85 C.C.C. (3d) 15, 24 C.R. (4th) 281; United States v. Cobb, 2001 SCC 19, 152 C.C.C. (3d) 270, 197 D.L.R. (4th) 46, 41 C.R. (5th) 81; United States v. Shephard (1976), 1976 8 (SCC), [1977] 2 S.C.R. 1067, 30 C.C.C. (2d) 424, 70 D.L.R. (3d) 136, 34 C.R.N.S. 207, 9 N.R. 215 (sub nom. U.S.A. v. Sheppard); United States of America and Smith, Re (1984), 1984 1913 (ON CA), 44 O.R. (2d) 705, 2 O.A.C. 1, 7 D.L.R. (4th) 12, 8 C.R.R. 245, 10 C.C.C. (3d) 540, 38 C.R. (3d) 228 (C.A.), affg (1983), 1983 1817 (ON SC), 42 O.R. (2d) 668, 150 D.L.R. (3d) 275, 6 C.C.C. (3d) 419 (H.C.J.) (sub nom. United States of America on Behalf of State of California v. Smith); United States of America v. Reid, unreported, May 23, 2000 (Ont. S.C.J.); United States of America v. Waddell (1993), 1993 1165 (BC CA), 87 C.C.C. (3d) , 555 (B.C.C.A.) [Leave to appeal to S.C.C. refused (1994), 174 N.R. 80n]; United States of America v. Wagner (1995), 1995 1815 (BC CA), 104 C.C.C. (3d) 66 (B.C.C.A.) [Leave to appeal to S.C.C. refused (1996), 204 N.R. 74n]; Voss and R., Re (1984), 1984 640 (BC CA), 53 B.C.L.R. 372, 12 C.C.C. (3d) 538 (C.A.) (sub nom. Voss v. Warden of Lower Mainland Regional Correctional Centre and United States of America) Statutes referred to Backing of Warrants (Republic of Ireland) Act, 1965 (U.K.), 1965, c. 45 Canadian Charter of Rights and Freedoms, ss. 1, 7, Criminal Code, R.S.C. 1985, ss. 145(2), 267(a), (b), 268 Extradition Act, An Act to amend the, S.C. 1992, c. 13 Extradition Act, R.S.C. 1985, c. E-23 [repealed S.C. 1999, c. 18, s. 129 (in force June 17, 1999)] Extradition Act, S.C. 1999, c. 18, ss. 3, 14, 15, 19, 20, 21, 25, 29(1)(a), 32, 33, 34, 40, 46, 49, 53 [as am.] Extradition Act, 1989 (U.K.), 1989, c. 33 Young Offenders Act, R.S.C. 1985, c. Y-1 Treaties and conventions European Convention on Extradition, December 13, 1957, Eur. T.S. No. 24 Model Treaty on Extradition, G.A. res. 45/116, annex, 45 U.N. GAOR Supp. (No. 49A) at 212, U.N. Doc. A/45/49 (1990). Authorities referred to McKillop, B., Anatomy of a French Murder Case, The Institute of Criminology Monograph Series (Leichhardt, N.S.W.: Hawkins Press, 1997)

Wes Wilson, for appellant. Thomas Beveridge and Howard Piafsky, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- The appellant is charged with a number of offences, including attempted murder, in the United States. Following an extradition hearing, Dilks J. ordered that he be committed for surrender to the United States. The appellant submits that he should not have been committed because the material placed before the extradition judge was inadmissible. The primary basis for this submission is that certain provisions of the Extradition Act, S.C. 1999, c. 18, which govern the admissibility of evidence at the extradition hearing, are unconstitutional. The appellant argues that these provisions require the extradition judge to admit unreliable, unsworn evidence and that this violates the guarantee to fundamental justice in s. 7 of the Canadian Charter of Rights and Freedoms.

[2] There is no question that s. 7 applies to the judicial phase of the extradition process. As Arbour J. said most recently in United States v. Cobb, 2001 SCC 19, 152 C.C.C. (3d) 270 at p. 284, "although the committal hearing is not a trial, it must conform with the principles of procedural fairness that govern all judicial proceedings in this country, particularly those where a liberty or security interest is at stake." The issue presented by this case is whether, in the context of an extradition hearing, the principles of procedural fairness demand that the evidence meet some minimal standard of reliability before it can be used to deprive the person sought for extradition of his or her liberty. In the particular circumstances of this case, the question is whether these principles of procedural fairness require that the hearing be based upon affidavits sworn to by witnesses with first-hand knowledge of the events. The appellant also attacks the sufficiency of the evidence submitted, on the basis that, in any event, it does not conform to the statutory requirements. For the reasons that follow, I would uphold the constitutionality of the impugned provisions and dismiss the appeal.

The Statutory Scheme

[3] Before turning to the facts of this case, it will be helpful to set out the statutory scheme relating to the judicial committal phase of the extradition process. Since the appellant has not yet been tried by the extradition partner, the only provisions of concern relate to a person sought for prosecution. Section 29(1)(a) sets out the extradition judge's function:

29(1) 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.

(Emphasis added)

[4] The "authority to proceed" referred to in s. 29(1)(a) is defined by s. 15:

15(1) The Minister may, after receiving a request for extradition and being satisfied that the conditions set out in paragraph 3(1)(a) and subsection 3(3) are met in respect of one or more offences mentioned in the request, issue an authority to proceed that authorizes the Attorney General to seek, on behalf of the extradition partner, an order of a court for the committal of the person under section 29.

(3) The authority to proceed must contain

(a) the name or description of the person whose extradition is sought;

(b) the name of the extradition partner; and

(c) the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person or the conduct in respect of which the person was convicted, as long as one of the offences would be punishable in accordance with paragraph 3(1)(b).

[5] The combined effect of ss. 15 and 29 is to implement the double criminality requirement. The authority to proceed sets out the Canadian offence that is equivalent to the offence allegedly committed in the extradition partner state. The extradition judge is therefore not concerned with foreign law. He or she merely determines whether there is evidence of conduct that would amount to the Canadian offence described in the authority to proceed. The evidence must be sufficient as would justify an accused's committal for trial if the offence were alleged to have been committed in Canada.

[6] The provisions attacked in this proceeding are contained in ss. 32, 33 and 34. Section 32 sets out the types of evidence admissible at the extradition hearing:

32(1) Subject to subsection (2), evidence that would otherwise be admissible under Canadian law shall be admitted as evidence at an extradition hearing. The following shall also be admitted as evidence, even if it would not otherwise be admissible under Canadian law:

(a) the contents of the documents contained in the record of the case certified under subsection 33(3);

(b) the contents of the documents that are submitted in conformity with the terms of an extradition agreement; and

(c) evidence adduced by the person sought for extradition that is relevant to the tests set out in subsection 29(1) if the judge considers it reliable.

(2) Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.

(Emphasis added)

[7] In summary, s. 32 contemplates that evidence that would not otherwise be admissible under Canadian law is admissible at the extradition hearing and can be used to make out the case for committal under s. 29. This evidence can fall into three categories. If the evidence is adduced by the person sought for extradition it can be admitted if it is relevant and the judge considers it reliable even if it would not be admissible under Canadian law (32(1)(c)). The contents of documents submitted in accordance with an extradition agreement (treaty) are admissible (32(1)(b)). Finally, the contents of documents contained in the s. 33 record of the case are admissible although those contents would not otherwise be admissible under Canadian law (32(1)(a)). The constitutionality of this provision, s. 32(1)(a), is challenged by the appellant.

[8] However, it is s. 33, which describes the contents of the record of the case, that is at the heart of the constitutional challenge in this case. I will set out its provisions before describing its effect:

33(1) The record of the case must include

(a) in the case of a person sought for the purpose of prosecution, a document summarizing the evidence available to the extradition partner for use in the prosecution; and

(2) A record of the case may include other relevant documents, including documents respecting the identification of the person sought for extradition.

(3) A record of the case may not be admitted unless

(a) in the case of a person sought for the purpose of prosecution, a judicial or prosecuting authority of the extradition partner certifies that the evidence summarized or contained in the record of the case is available for trial and

(i) is sufficient under the law of the extradition partner to justify prosecution, or

(ii) was gathered according to the law of the extradition partner;

(4) No authentication of documents is required unless a relevant extradition agreement provides otherwise.

(5) For the purposes of this section, a record of the case includes any supplement added to it.

(Emphasis added)

[9] The record of the case need only contain a summary of the evidence. A judicial or prosecuting authority must certify that evidence summarized or contained in the record of the case is available for the trial. In addition, the judicial or prosecuting authority must certify either that the evidence is sufficient under the law of the extradition partner to justify prosecution or was gathered according to the law of the extradition partner.

[10] Finally, s. 34 provides that a document is admissible (and this would apply to all of the various types of documents contemplated by s. 32) whether or not it is solemnly affirmed or under oath.

[11] It is important to note that although under s. 32 the prosecuting or judicial authority must certify either the sufficiency of the evidence or the manner in which it was gathered, whether the evidence is in fact sufficient to meet the test under s. 29 must be determined by the extradition judge. Put another way, ss. 32 to 34 determine admissibility only. It is for the Canadian judge presiding at the extradition hearing to decide whether the evidence is sufficient to meet the test under s. 29. Having said that, it is apparent that various types of evidence that would not be admissible at a Canadian trial are admissible at the extradition hearing. In particular, hearsay is admissible although it would not meet a common law or statutory exception and would not meet the necessity and reliability requirements set out by the Supreme Court in cases such as R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, 79 C.C.C. (3d) 257 and R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, 94 D.L.R. (4th) 590. Thus, as I will des cribe below, the record of the case in the appellant's case consisted entirely of second- or third-hand hearsay that would probably not be admissible in a Canadian trial. The impugned provisions would also permit admission of character or opinion evidence at the extradition hearing although such evidence might not be admissible at a Canadian trial.

[12] In the result, the extradition hearing has moved very far from the typical Canadian trial or preliminary inquiry where the judge, by applying the common law and statutory rules of evidence based on the paradigm of trial by the lay jury, performs a gatekeeper function to keep potentially unreliable and prejudicial evidence away from the trier of fact. The new Extradition Act has also moved some distance from the scheme under the Extradition Act, R.S.C. 1985, c. E-23, which required, in most cases, that the evidence be presented in the form of sworn affidavits by persons with first-hand knowledge of the events. Although the deponents of the affidavits were not subject to cross-examination (See Re United States of America and Smith (1984), 1984 1913 (ON CA), 44 O.R. (2d) 705, 10 C.C.C. (3d) 540 (C.A.)), the affidavits usually [See Note 1 at end of document] had to be sworn and contain evidence that would otherwise be admissible in a Canadian court.

The Facts

[13] The evidence in the extradition court was in two parts. First, there was the evidence relevant to the inquiry under s. 29. This was in the form of the s. 33 record of the case as certified by the prosecuting authority, an Assistant District Attorney with the New York County District Attorney's Office. The record of the case consisted of the original record of the case and a supplement. The appellant also adduced certain material. The second type of evidence consisted of testimony and various other materials relevant to the constitutional challenge. I will briefly summarize the two parts.

The facts of the offences

[14] The authority to proceed set out four offences that corresponded to the alleged conduct as follows:

• aggravated assault contrary to s. 268 of the Criminal Code, R.S.C. 1985, c. C-46;
• assault with a weapon contrary to s. 267(a) of the Criminal Code;
• assault causing bodily harm contrary to s. 267(b) of the Criminal Code; and
• fail to appear contrary to s. 145(2) of the Criminal Code.

[15] The Assistant District Attorney summarized the evidence against the appellant in the original record of the case as follows. On September 6, 1995, at approximately 6:15 p.m., several eyewitnesses saw the appellant and numerous other individuals attacking the victim. As a result of the attack, the victim fell to the ground, bloodied. The appellant and others fled the scene. Two named police officers observed the crowd and saw the appellant and the others fleeing. They gave chase and were able to capture the appellant and another person, Shan Zhang, who has since been convicted. When arrested, Zhang was in possession of a knife covered with blood. The victim suffered numerous stab wounds to the back and was hospitalized for a week. The police suspected possible gang activity.

[16] After his arrest, the appellant was charged with attempted murder in the second degree and other charges and released on bail. He was to appear in court on October 3, 1995 but failed to do so. A warrant was issued for his arrest and he was charged with bail jumping in the first degree. The record of the case states that the identity of the victim and the other eyewitnesses has been omitted to protect their safety. The record of the case does contain material relevant to the identification of the appellant.

[17] The record of the case contains the following statement by the Assistant District Attorney:

I have interviewed the several eyewitnesses in the case and was present in the Grand Jury when they testified and offered their accounts of what they personally observed. I have also spoken with the complainant/victim in the case, and the New York City Police Department Officers who were involved in the arrest, apprehension and investigation in this case. The following is a summary based upon information that I have personally received from conversations and/or Grand Jury testimony of the victim/complainant, the several eyewitnesses, the police officers who were at the scene of the incident, from reviewing the Grand Jury minutes, the indictments in the case, in addition to the Criminal Court Papers, other documentation, and the New York City Police Department documents in connection with the above cases.

(Emphasis added)

[18] This statement leaves the impression that the victim had provided information to the Assistant District Attorney.

[19] The record of the case was certified by the Assistant District Attorney in the following terms:

In relation to that request [for extradition of the appellant] I . . . certify that the evidence summarized or contained in the attached documents is available for trial and:

is sufficient under the law of United States, State of New York, County of New York to justify prosecution,

and,

was gathered according to the law of the United States of America, State of New York, County of New York.

(Emphasis added)

[20] Some time later, a supplement to the record of the case was presented. It is certified in the same manner as the original record of the case. The summary of evidence in the supplement is somewhat fuller. The Assistant District Attorney states that this summary is based on the Grand Jury testimony and indicates that there are three eyewitnesses. The summary discloses the locations of two of the witnesses at the time they made the observations. One witness saw the appellant hitting the victim over the head with a plastic milk crate while another assailant appeared to be stabbing him. The evidence of the two arresting officers is also set out in more detail, as is medical evidence concerning the injuries suffered by the victim. The summary also makes clear that the victim did not testify before the Grand Jury and has refused to cooperate with the police or the District Attorney's Office.

[21] After the supplement was signed and authenticated, the Assistant District Attorney wrote a letter that was disclosed to the defence. It would seem that this letter came in response to information in the hands of the appellant's counsel indicating that the New York police had been unable to locate witnesses. In the letter, she states that the prosecution has always relied upon the testimony of several eyewitnesses and the medical records and is prepared to take the case to trial despite the victim's refusal to cooperate. She further states:

The People over the past several weeks have attempted to locate the eyewitnesses in this case to ensure their availability and have located most of them thus far.

[22] In view of this letter and some other material, the appellant submits that the certification is false in so far as it indicates that evidence is available for trial. He also submits that the certification is false because the record of the case states that the victim is one of the witnesses who is available and supplied information to the Assistant District Attorney. The appellant submits that irrespective of the constitutionality of ss. 32 to 34, the record of the case and the supplement should have been excluded on the basis of false certification.

The facts relating to the constitutional challenge

[23] The evidence concerning the constitutional challenge came primarily from three expert witnesses called by the Attorney General of Canada. Two witnesses testified before the extradition judge. The evidence of the third witness was tendered in the form of a transcript of her testimony before Ewaschuk J. in the earlier case of Bourgeon v. Canada (Attorney General) (2000), 2000 22635 (ON SC), 187 D.L.R. (4th) 542, 74 C.R.R. (2d) 33 (Ont. S.C.J.) where a similar constitutional challenge was made. I will make further reference to the decision in Bourgeon below. A Canadian lawyer with expertise in United States law testified on behalf of the appellant. The parties also placed before the extradition judge numerous documents including excerpts from Hansard and various treaties and extradition agreements to which Canada is a party.

[24] The evidence adduced by the Attorney General was directed to explaining the rationale for changes to the evidentiary provisions. At least since the 1980s, Canada has been involved in a project to modernize its extradition process. At that time, Canadian legislation was based upon 19th century Imperial statutes and treaties that did not easily accommodate modern offences and the increasingly global nature of crime itself. A particular problem was that non-common-law states found it difficult to comply with the requirement of sworn affidavits based upon first-hand knowledge of the events. These countries (for convenience I will refer to them as civilian states) do not gather their evidence nor present it in the same way as do the common-law countries. The concept of preparing, at the investigatory stage, a prima facie case based upon affidavits that do not infringe our hearsay rule is foreign to these countries. They had difficulty meeting deadlines in the legislation or the treaties. Extraditi on would be refused for failure to comply with what the civilian states would consider needless technicalities. In the result, there was evidence, admittedly mostly anecdotal, that civilian states had stopped making requests of Canada for extradition. Even the United States, with whom Canada transacts most of its extradition business, found the Canadian rules cumbersome, especially in very complex drug and fraud investigations. The task of gathering affidavits based upon first-hand information from all of the various witnesses and victims was a daunting and expensive one.

[25] The initial attempt to modernize the extradition process was through bilateral negotiations. The former Extradition Act provided that in case of a conflict between the Act and a treaty, the terms of the treaty governed. Thus, if the evidence were admissible in accordance with the treaty, that evidence could be used as a basis for proof of a prima facie case, even if the evidence did not, for example, meet the requirements of sworn affidavits containing evidence that met our hearsay rule. See for example: Netherlands (Kingdom) v. Clarkson (2000), 2000 BCCA 461, 146 C.C.C. (3d) 482, 189 D.L.R. (4th) 1 (B.C.C.A.).

[26] At the same time that Canada was undertaking these bilateral initiatives, the growth in transnational crime had sparked worldwide initiatives to modernize extradition -- to make extradition simpler and more expeditious. Canada participated in a number of meetings, especially with other Commonwealth states. These states -- the United Kingdom, New Zealand and Australia -- were experiencing similar problems. The United Kingdom, in particular, was under pressure from the members of the European Union, with whom most of its extradition business was conducted, to accommodate the civilian system. The civilian states complained about the need for proof of a prima facie case, affidavits without inadmissible hearsay and, in some cases, the requirement that the documentary evidence be made under oath or affirmation.

[27] Various multilateral initiatives favoured abolition of one or all of the requirements of an oath, affidavits based upon first-hand information and proof of a prima facie case. The proponents of these initiatives considered that other safeguards, such as the rules of speciality and double criminality and the right not to extradite for political crimes, provided adequate safeguards for the fugitive. These initiatives have been codified in various documents such as the European Convention on Extradition [Eur. T.S. No. 24 (1957) ], adopted by the European Union in 1957, and the Model Treaty on Extradition [G.A. res 45/116, annex, 45 U.N. GAOR Supp. (no. 49A) at 212], adopted by the United Nations General Assembly in 1990.

[28] The scheme in the new Extradition Act originates in negotiations between law ministers of the Commonwealth. In 1986, the Government of Australia proposed the abolition of the prima facie test within the Commonwealth scheme for rendition. Canada, in particular, was opposed to this suggestion, which would have abolished any judicial assessment of the sufficiency of the request. Accordingly, in 1989 at a meeting in New Zealand, Canada proposed that the prima facie test be retained but that the requesting state could rely upon a record of the case. The record of the case would contain a recital of the evidence. Thus, there would be no requirement for affidavits containing first-hand accounts. Further, the recital of evidence could be based upon evidence admissible in the requesting state and not necessarily admissible in the requested state. This proposal would bring the Commonwealth more in line with the scheme for extradition as set out in the European Convention on Extradition and the United Nations Model Treaty on Extradition. The law officers of the Commonwealth adopted Canada's proposal.

[29] Another important consideration for Canada was its obligation to cooperate with the United Nations Tribunals, which oversee trials of war crimes and crimes against humanity in the former Yugoslavia and in Rwanda. These tribunals designed their own evidentiary and procedural rules that borrowed from both the common-law and civilian systems. In particular, hearsay evidence is admissible at the trials in these tribunals.

[30] Canada has implemented its 1989 proposal in the impugned provisions of the new Extradition Act, which came into force on June 17, 1999. Amendments to the Act came into force October 23, 2000 to deal particularly with requests for extradition from the war crimes tribunals (S.C. 2000, c. 24, ss. 47 to 53). The new Act includes the following protections: the rule of double criminality (s. 3); time limits on proceedings against a person arrested on a provisional warrant (ss. 14, 21); the right to apply for bail (ss. 19, 20); the right of the Minister to seek assurances from the extradition partner (s. 40); the right to attach conditions that the fugitive not be prosecuted for other offences (the rule of speciality) (s. 40); prohibition against surrender for political crimes, certain military crimes and offences barred by a limitation period (s. 46); and the right of the Minister to refuse surrender in cases concerning, inter alia, autrefois acquit or convict, persons convicted in their absence and having no right to have the case reviewed, and young persons where the procedure in the extradition partner is inconsistent with the fundamental principles governing the Young Offenders Act, R.S.C. 1985, c. Y-1. The Act also includes provisions for appealing the committal (s. 49) and reviewing the decision of the Minister to surrender (s. 53).

[31] The parties adduced evidence of extradition schemes in other jurisdictions. There is no single universal model for extradition in all countries or even in the same country. Thus some states treat some countries differently from others. Below is a very brief summary of the extradition schemes in the countries with which Canada would conduct most of its extradition business. I point out, however, that, as is to be expected, the overwhelming number of extradition requests come from and go to the United States.

[32] European countries examine the formal validity of extradition requests but, typically, there is no assessment of the sufficiency of evidence. On the other hand, many of these countries do not extradite their own citizens. The United Kingdom has a bifurcated system as set out in the Extradition Act, 1989 (U.K.), 1989, c. 33. The scheme retains both the prima facie standard of proof and the necessity that evidence be admissible according to the domestic rules of evidence. By Order in Council, however, specified countries may be exempted from these requirements. Where such an exception is permitted, particulars of both the person sought and the offence alleged must be provided. The United Kingdom ratified the European Convention on Extradition in 1989 and member states of the European Union are exempted. Britain also has a special arrangement with Ireland, which involves a scheme of judicial backing of an arrest warrant: Backing of Warrants (Republic of Ireland) Act, 1965 (U.K.), 1965, c. 45.

[33] Australia and New Zealand have schemes that are similar to that of Great Britain. They have adopted the backing of the arrest warrant procedure for extradition between each other. New Zealand has designated Canada as an exempted state. Australia exempts certain states from the prima facie case requirement, but not Canada and other members of the Commonwealth. In the United States, consideration of extradition requests is on a probable cause standard and there is a relaxed standard of admissibility, with hearsay being admissible. See Artukovic v. Rison, 784 F.2d 1354 (9th Cir., 1986). Thus, an affidavit from the prosecutor in the requesting state summarizing the evidence, similar to the record of the case presented in the appellant's case, would be admissible in the United States: Emami v. United States District Court for the Northern District of California, 834 F.2d 1444 (9th Cir., 1987).

The Reasons of the Extradition Judge

[34] In his reasons for dismissing the constitutional challenge to the legislation, Dilks J. pointed out that in deciding whether the principles of fundamental justice have been respected in a particular case it is necessary to balance the importance of the rights with the importance of the legislative purpose. He observed that while the judicial role has been considered to be a critical one in extradition, it is a modest one. He concluded that given the abundance of safeguards existing in the legislative scheme as a whole, the new evidentiary provisions do not infringe s. 7 of the Charter. In particular, he held that any apparent lack of reliability because of s. 32 is compensated for by the certification requirements of s. 33. He summed up his conclusion as follows:

Having regard to the many safeguards built into the process to ensure its integrity and to protect the person sought, any prejudice to that person caused by admission of the type of evidence permitted by the impugned sections is so minimal that when weighed against the limited role of extradition in the whole criminal process and, as well, Canada's international commitments, the result is that there is no violation of the fundamental justice rights of [the fugitive].

[35] Dilks J. refused to follow the decision of Ewaschuk J. in Bourgeon v. Canada (Attorney General), discussed below.

[36] Dilks J. also dealt with the argument that the requirements of s. 32 of the Act had not been met because the affidavit gave the misleading impression that the victim was available to testify when other material clearly showed he was not cooperating. He interpreted the affidavit to mean that the information and the summary of the case came wholly from persons other than the victim. He therefore held that the affidavits were admissible, that the appellant had been properly identified and that there was evidence upon which a jury acting reasonably and properly instructed could convict. Accordingly, he ordered that the appellant be committed for extradition.

The Decision in Bourgeon v. Canada (Attorney General)

[37] A challenge similar to the one made in this case came before Ewaschuk J. in Bourgeon v. Canada (Attorney General). He made the following findings concerning the evidentiary provisions:

(i) Abolition of the requirement of evidence on oath or by way of solemn affirmation did not contravene s. 7 of the Charter.

(ii) Admissibility of otherwise inadmissible foreign evidence must not be determined by foreign standards, varying from country to country.

(iii) Abolition of the common law exclusionary rules as they apply to foreign evidence may result in the deprivation of the fugitive's liberty in a fundamentally unjust manner since the extradition judge may base committal on unreliable evidence. It was "inexplicable" that evidence in favour of the fugitive must meet a reliability threshold under s. 32(1)(c), but evidence adduced by the requesting state need not. This is "fundamentally unfair".

(iv) Thus, s. 32(1)(a) and (b) contravene s. 7 as it is fundamentally unjust to a fugitive to permit an extradition judge to admit evidence at an extradition hearing that would not otherwise be admissible in the absence of "a statutory safeguard against the reception of unreliable evidence". Further, this contravention was not a reasonable limit within the meaning of s. 1 of the Charter.

(v) However, the appropriate remedy was to "read down" the provisions by reading the provisions to authorize the admission of otherwise inadmissible evidence only "if the judge considers it reliable". As so interpreted, the provision, although contravening s. 7, would constitute a reasonable limit.

[38] Justice Ewaschuk's holding that s. 32 of the Extradition Act should be read down, authorizing the admission of otherwise inadmissible evidence at the instance of the demanding state only if the judge considers that evidence to be reliable, has been considered by other superior court judges. As indicated, Dilks J. refused to follow the decision in this case and it was not followed by Low J. in United States of America v. Reid (Ont. S.C.J.; May 23, 2000) or by Vertes J. in Germany v. Ebke, 2001 NWTSC 17, [2001] N.W.T.J. No. 13 (S.C.). Low J. made the point in Reid at p. 22:

[T]he extradition judge has a very limited, indeed a negligible ability to assess the reliability of the evidence, for, apart from the situation relating to evidence adduced viva voce at the extradition hearing, there is no opportunity to assess the quality of the potential witnesses whose evidence is summarized in the authenticated documentary evidence and the record of the case adduced under section 32 of the Act. At best, the extradition judge may be able to say that there is or is not evidence before him to indicate that such evidence may be unreliable.

[39] As I understand it, other judges of the Superior Court of Justice have been following the Bourgeon case and applying a reliability test to evidence tendered on behalf of the extradition partner.

Analysis

The constitutional issue

[40] The challenge to the constitutionality of the evidentiary provisions of the Extradition Act is based upon s. 7 of the Charter of Rights and Freedoms which provides as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[41] As I have said, there is no question that the appellant's right to liberty is engaged and the question in this case therefore concerns whether the evidentiary provisions in the legislative scheme of extradition accord with the principles of fundamental justice. In Rodriguez v. British Columbia (Attorney General), 1993 75 (SCC), [1993] 3 S.C.R. 519 at pp. 593-94, 107 D.L.R. (4th) 342, Sopinka J. held that in arriving at the principles of fundamental justice the court is required to balance the interests of the state and the individual.

[42] The court must also take a contextual approach. Procedure that in one context would not comport with the principles of fundamental justice may accord with the principles of fundamental justice in an entirely different context. In Kindler v. Canada (Minister of Justice), 1991 78 (SCC), [1991] 2 S.C.R. 779 at p. 844-45, 67 C.C.C. (3d) 1 at p. 51, McLachlin J. identified three elements that must be taken into account in identifying the principles of fundamental justice in the extradition context. They are reciprocity, comity and respect for differences in other jurisdictions. The implications of these contextual factors are profound. First and foremost, the courts are instructed not to impose Canadian standards upon our extradition partners. A foreign justice system is not fundamentally unjust because it does not recognize certain safeguards that we would consider principles of fundamental justice. La Forest J. put the case for accommodating differences in blunt terms when he said in Schmidt v. R., 1987 48 (SCC), [1987] 1 S.C.R. 500 at p. 522, 33 C.C.C. (3d) 193 at p. 214 that the judicial process in the foreign country "must not be subjected to finicky evaluations against the rules governing the legal process in this country". He recognized [at pp. 522-23 S.C.R.] that Canada has no monopoly on fairness or truth-seeking:

A judicial system is not, for example, fundamentally unjust -- indeed it may in its practical workings be as just as ours -- because it functions on the basis of an investigatory system without a presumption of innocence or, generally, because its procedural or evidentiary safeguards have none of the rigours of our system.

[43] In my view, given the pronouncements of the Supreme Court of Canada in post-Charter extradition cases and particularly the need to respect differences in other jurisdictions, the evidentiary provisions of the Extradition Act comply with the principles of fundamental justice. Put simply, if we are prepared to countenance a trial of persons, including our own citizens, in jurisdictions with very different legal systems from our own, it is open to Parliament to design an extradition procedure that, with appropriate safeguards, accommodates those differences. Our extradition process need only meet "the basic demands of justice". The system must be one that is "reasonably effective . . . for the surrender of fugitives from one country to another untrammelled by excessive technicality or fastidious demands that foreign systems comply with our constitutional standards" (Schmidt at p. 523 S.C.R., p. 215 C.C.C.). The United States Supreme Court adopted a similar approach in Glucksman v. Henkel, United States Marshal, 221 U.S. 508 (1911) at p. 512 where Mr. Justice Holmes said:

For while of course a man is not to be sent from the country merely upon demand or surmise, yet if there is presented, even in somewhat untechnical form according to our ideas, such reasonable ground to suppose him guilty as to make it proper that he should be tried, good faith to the demanding government requires his surrender.

[44] A basic tenet of our legal system that informs the nature of fundamental justice for extradition is, as stated in United States v. Burns, 2001 SCC 7, 151 C.C.C. (3d) 97 at p. 130, "that individuals who choose to leave Canada leave behind Canadian law and procedures and must generally accept the local law, procedure and punishments which the foreign state applies to its own residents". The new Extradition Act to a significant degree allows the foreign state to make its extradition request in accordance with its own procedures, especially its own rules of evidence. I have not been persuaded that the Act, on its face, infringes the s. 7 rights of fugitives. Whether the Act may operate unfairly in a particular case is a matter I will discuss at the end of these reasons. I will now set out my reasons for holding that the impugned provisions are constitutional.

[45] In Kindler, at pp. 848-49 S.C.R., p. 54 C.C.C., McLachlin J. held that in defining the principles of fundamental justice relevant to extradition the court "draws upon the principles and policies underlying extradition law and procedure". The court asks whether the impugned provision is "consistent with extradition practices, viewed historically and in the light of current conditions" and whether the provision serves the "purposes and concerns which lie at the heart of extradition policy". I have briefly reviewed the extradition procedure in the countries with which Canada does most of its extradition business as well as the U.N. Model Treaty on Extradition and the European Convention on Extradition. Similar material had persuasive effect in Burns. While there may not be any accepted universal international norm governing extradition process, the trend is towards simplifying the extradition process to accommodate differences in the legal system of extradition part ners.

[46] It is possible to identify certain principles of fundamental justice in the extradition context. The fugitive is entitled to a hearing before an unbiased decision maker and to be present: Idziak v. Canada (Minister of Justice), 1992 51 (SCC), [1992] 3 S.C.R. 631 at pp. 654 and 657, 77 C.C.C. (3d) 65 at pp. 83 and 85. The fugitive has the right to know the case against him or her including the materials relied upon to establish the prima facie case: United States v. Kwok, 2001 SCC 18, 152 C.C.C. (3d) 225 at p. 267, United States of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462 at pp. 517-19, 115 C.C.C. (3d) 481 at pp. 524-25. The fugitive also has the right to participate in the hearing free of coercion from the requesting state: Cobb at pp. 284-85 C.C.C. However, the fugitive is not, in my view, entitled to any particular form of evidence. As Sopinka J. said in Rodriguez at p. 590 S.C.R., "a mere common law rule does not suffice to constitute a principle of fundamental justice." Rather, principles of fundamental justice are ones "upon which there is some consensus that they are vital or fundamental to our societal notion of justice". Bearing in mind the need to respect differences in other jurisdictions, developments in extradition in other jurisdictions and the traditionally modest role of the extradition judge, I cannot find that the hearsay rules, opinion rules or the other common-law rules of evidence are vital to our societal notion of justice in the extradition context.

[47] If, as said by La Forest J. in Schmidt in the passage quoted above, it is not unjust to extradite to a country that does not recognize the presumption of innocence or other evidentiary and procedural safeguards that we would consider fundamental, the question naturally arises whether there are any Canadian evidentiary standards that can be imposed, as constitutional requirements, at the extradition hearing. The starting point must be an examination of the role of the judicial phase of the extradition process. That role, described repeatedly as a modest one, is primarily to ensure the identity of the person sought and to protect that person from being surrendered for conduct that we would not recognize as criminal. In Schmidt at p. 515 S.C.R., p. 209 C.C.C., the hearing was described as protecting the individual from being surrendered "unless prima facie evidence is produced that he or she has done something there that would constitute a crime . . . if committed here". Simi larly, in McVey (Re); McVey v. United States of America, 1992 48 (SCC), [1992] 3 S.C.R. 475 at p. 526, 77 C.C.C. (3d) 1 at p. 20, La Forest J. described the judge's function as to "determine . . . whether the conduct of the accused would constitute a crime if it had been committed in this country". Thus, the judicial hearing acts as a modest screening device. It is structured around the fundamental concept that the actual trial takes place in the requesting state. Accordingly, the hearing is "intended to be an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canada's international obligations": Dynar at p. 514 S.C.R., p. 522 C.C.C. The evidence adduced in this case demonstrates that the procedure under the former Extradition Act has, on occasion, frustrated that fundamental obligation.

[48] If fundamental justice does not mandate any particular evidentiary safeguards, does it nevertheless impose a reliability minimum as held in Bourgeon? In my view, it does not. To the contrary, imposing such a requirement is inconsistent with an important aspect of the extradition hearing, which is the need to accommodate differences in procedure in the extradition partners. In the foundation case of United States v. Shephard (1976), 1976 8 (SCC), [1977] 2 S.C.R. 1067, at pp. 1087-88, 30 C.C.C. (2d) 424 at pp. 433-34, Ritchie J. made it clear that the judge's role in determining sufficiency of evidence did not extend to passing judgment on its reliability. He held at p. 1080 S.C.R., p. 427 C.C.C. that the judge was required to commit the fugitive in any case "in which there is admissible evidence which could, if it were believed, result in a conviction". The committal could even be based upon evidence that was, in the opinion of the judge, "manifestly unreliable". Shephard is a pre-C harter case and must be read in that light. It must also be read in light of the statutory framework that existed at the time and required that, absent a treaty provision to the contrary, evidence be presented by way of sworn affidavits based on first-hand knowledge. It does, nevertheless, provide strong support for the view that it has not traditionally been the function of the extradition judge to pass upon the reliability of the evidence presented. Post- Charter cases have held that the Shephard test applies and that the extradition judge must refrain from weighing the evidence or assessing credibility. See, most recently, United States of America v. Kwok, supra, at p. 244 C.C.C. It is certainly open to Parliament to give the extradition judge, as it has in s. 32(1)(c) in respect of evidence adduced by the person sought for extradition, the right to pass on the reliability of evidence, but that does not mean that such a power is fundamental to the fairn ess of the process.

[49] The Supreme Court of Canada has repeatedly stated that in determining whether there is a prima facie case, whether at the preliminary inquiry or trial stage, the judge is not to consider the quality of the admissible evidence. See, for example, Mezzo v. R., 1986 16 (SCC), [1986] 1 S.C.R. 802 at p. 844-45, 27 C.C.C. (3d) 97 at pp. 107-08 and R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154 at pp. 160-61, 35 C.C.C. (3d) 193 at p. 198. In a domestic trial, reliability is a matter for the trier of fact. In the extradition context, it is a matter for the judiciary in the extradition partner. See Re United States of America and Smith (1984), supra, at pp. 554-55 C.C.C., United States of America v. Wagner (1995), 1995 1815 (BC CA), 104 C.C.C. (3d) 66 (B.C.C.A.) and United States of America v. Waddell (1993), 1993 1165 (BC CA), 87 C.C.C. (3d) 555 (B.C.C.A.) at p. 571. As Arbour J.A. said in United States v. Shulman, 2001 SCC 21, 152 C.C.C. (3d) 294 at p. 316, "Weighing the evidence or assessing credibility is not part of the extradition judge's jurisdiction . . . and it is not open to that judge to assume responsibility over the actions of foreign officials in preparing evidence or to assume that foreign courts will not give the fugitive a fair trial or cannot properly weigh evidence".

[50] In Dynar, at p. 522 S.C.R., pp. 527-28 C.C.C., La Forest J. said that the court must exercise extreme caution in excluding foreign evidence from consideration in the extradition process on Charter grounds because it would be "difficult to imagine how such evidence could be excluded without indirectly applying the Charter extraterritorially to the foreign jurisdiction". To impose a reliability requirement on the evidence from the foreign state in the extradition process as a matter of fundamental justice would indirectly apply the Charter extraterritorially. The extradition partner would be precluded from relying upon evidence that it had gathered in conformity with its own procedures or that, in its own jurisdiction, would be sufficient to warrant a trial and conviction.

[51] On the argument of this appeal, much was made of the disturbing spectre of a fugitive being committed for surrender based upon fifth-hand hearsay, non-expert opinion and prejudicial character evidence. For example, in Ebke, the record of the case from the Federal Republic of Germany is described as containing "hearsay, character evidence, unqualified opinion evidence, and other forms of evidence that would not ordinarily be admissible in domestic Canadian criminal proceedings" (at para. 13). This is disturbing only when viewed through the lens of the Canadian system and its paradigm of the jury trial. If such evidence is admissible in our extradition partners it is because their experience is that this kind of evidence can be weighed by the judicial official and will be accorded the weight it deserves. It is not for this country to assume that it alone knows how to arrive at a true verdict.

[52] It seems to me that much of the concern about the reliability of evidence from civilian states is based upon a lack of understanding of that system and a tendency to isolate certain parts of the process, such as admission of hearsay, without an appreciation that there are other safeguards in the system that protect the accused from wrongful conviction. Thus, although all manner of information goes into the dossier that is presented to the court, usually that evidence is gathered under the supervision of a legal officer, either a prosecutor or a magistrate. At all phases of the investigation and trial an expert judge has wide powers to seek out additional evidence, for example from court-appointed neutral experts, and control the investigatory process. [See Note 2 at end of document]

[53] Most telling against the appellant's submission are the remarks of La Forest J. for the majority of the court in Argentina (Republic of) v. Mellino, 1987 49 (SCC), [1987] S.C.R. 536 at p. 555, 33 C.C.C. (3d) 334 at p. 351 that he saw "nothing offensive to fundamental justice in surrendering in accordance with our extradition procedures an accused to a foreign country for trial in accordance with its traditional judicial processes for a crime alleged to have been committed there". And, as he said at p. 558 S.C.R., p. 353 C.C.C., our courts "must assume that he will be given a fair trial in the foreign country. Matters of due process generally are to be left for the courts to determine at the trial there as they would be if he were to be tried here."

The effect of the impugned provisions is simply to permit the extradition partner to rely upon the same type of evidence that it could use to try the accused in that country. The certification requirement ensures that a high official has certified that this is what will happen.

[54] The fact that I have held the impugned provisions of the Extradition Act are valid does not preclude an argument that the application of the provisions may, in a particular case, operate to violate the fugitive's rights. The extradition judge is deemed to be a court of competent jurisdiction for the purposes of the Charter by s. 25 of the Act.

[55] In Kwok at pp. 253-54 C.C.C., Arbour J. explained that the similarly worded section in the Extradition Act, R.S.C. 1985, c. E-23 (as amended by An Act to amend the Extradition Act, S.C. 1992, c. 13) confers Charter jurisdiction upon the extradition judge "insofar as the issues are specific to the functions of the extradition hearing, and to the extent that the Charter remedies could have previously been granted by the habeas corpus judge [under the old Act]". She further explained at p. 255 C.C.C. that this provision permits the extradition judge to give remedies for Charter breaches that "pertain directly to the circumscribed issues relevant at the committal stage of the extradition process". The scope of this power was illustrated in Cobb where the Supreme Court upheld the decision of the extradition judge staying the proceedings because of the conduct of the prosecutor and judge in the demanding state in attempting to fo rce the fugitives to abandon their right to an extradition hearing.

[56] The fact that, for example, evidence is admissible under ss. 32 to 34 because it has been gathered in accordance with the law of the extradition partner, will not preclude the extradition judge from concluding in the particular case that the evidence is inadmissible. This was recently affirmed by Arbour J.A. in Shulman at p. 315 C.C.C.:

[I]n an appropriate case, the extradition judge could exclude evidence gathered by the foreign authorities in such an abusive manner that its admission per se would be unfair under s. 7 of the Charter . . .

[57] There was no suggestion that the evidence in this case should be excluded on that basis.

[58] It follows that I do not agree with Ewaschuk J. that fairness requires that the reliability condition imposed by statute upon evidence sought to be adduced by the fugitive must also be applied to the evidence sought to be adduced by the extradition partner. As Vertes J. noted in Ebke at para. 79, this fails to give effect to the reliability requirement inherent in the certification requirements of the Act. Under s. 33(3), the judicial or prosecuting authority must certify that the evidence summarized in the record of the case is available and either would be sufficient under the law of the extradition partner to justify extradition or was gathered according to the law of the extradition partner. In short, the evidence must be available and must satisfy the legal standards of the extradition partner. I do not see why Canada should demand any greater guarantee of reliability from the extradition partner. Further, I do not see how the extradition judge would be in a position to make the reliabil ity determination without having a detailed knowledge of the legal system of the extradition partner and then, purportedly passing on its legitimacy. Both concepts are antithetical to the extradition process. Doherty J.A. made this point in Philippines (Republic of) v. Pacificador (1993), 1993 3381 (ON CA), 14 O.R. (3d) 321 at p. 329, 83 C.C.C. (3d) 210 at p. 218 (Ont. C.A.) in considering the jurisdiction of the extradition judge to require that a Canadian police officer be produced for cross-examination to provide information about his involvement in the extradition request:

The extradition judge could not possibly determine whether certain evidence offered at the extradition hearing is relevant to a fugitive's right to make full answer and defence at some subsequent proceeding, when the extradition judge has no knowledge of what full answer and defence means in the context of the foreign proceeding, and no knowledge of the legal matrix in which the ultimate adjudication of the merits of the charge would occur.

[59] Accordingly, in my view the decision in Bourgeon holding that paras. 32(1)(a) and (b) are unconstitutional and reading in a right to exclude unreliable evidence is incorrect and should not be followed.

[60] One additional comment. The appellant argued that the new provisions of the Extradition Act represent a radical departure from existing extradition practice. They are certainly a departure from the former statutory scheme. However, under s. 3 of the former Act where a treaty provides a different procedure, including different rules of evidence, the treaty governs: Re Voss and R. (1984), 1984 640 (BC CA), 12 C.C.C. (3d) 538, 53 B.C.L.R. 372 (C.A.); Government of Republic of Italy v. Piperno, 1982 166 (SCC), [1982] 1 S.C.R. 320, 66 C.C.C. (2d) 1. Several of the treaties allowed for admission of evidence in the manner contemplated by ss. 32 to 34 of the present Act, for example, the 1989 treaty with the Republic of Philippines: Philippines (Republic of) v. Pacificador, supra, at pp. 326-27 O.R., pp. 215-16 C.C.C. The new Act merely accelerates a process that Canada had embarked upon through bilateral negotiations.

[61] I would conclude my analysis of the constitutionality of these provisions with this comment. The judicial function has been described as a critical one. For example, in Dynar at pp. 513-14 S.C.R., p. 521 C.C.C. the court said:

One of the most important functions of the extradition hearing is the protection of the liberty of the individual. It ensures that an individual will not be surrendered for trial in a foreign jurisdiction unless, as previously mentioned, the Requesting State presents evidence that demonstrates on a prima facie basis that the individual has committed acts in the foreign jurisdiction that would constitute criminal conduct in Canada.

(Emphasis added)

[62] Similarly see Schmidt, at pp. 514-15 S.C.R., pp. 208-09 C.C.C. and McVey at pp. 519, 521-22, 526 S.C.R., pp. 15, 17 and 20 C.C.C. Although the impugned provisions contemplate admission of evidence that a Canadian court would not normally admit nor accord weight to, the extradition judge must still determine whether that evidence is sufficient to warrant committal. The fact that the prosecuting or judicial authority in the extradition partner has certified that the evidence is sufficient under the law of the extradition partner to justify prosecution does not eliminate the function of the extradition judge to determine its sufficiency.

[63] Equally, this critical function for protection of the liberty of the individual cannot be reduced to a meaningless ritual. While the judicial phase is not a full-fledged trial, neither "is it a mere formality": Shulman at p. 307 C.C.C. Thus, the judge must be in a position to exercise that function. If the material presented in the record of the case is so bereft of detail, such as the witness' means of knowledge, that the judge cannot determine its sufficiency, the judge will have to discharge the person sought for prosecution. This is not a question of the judge weighing the evidence or passing on its reliability, but of carrying out the function assigned by statute. For example, if the record of the case contained a statement that the police suspected the fugitive committed the offence, without stating the basis for this opinion, and this was the only evidence proffered by the extradition partner as proof that the fugitive committed the offence then, even if this opinion was admissible in the requesting state as proof of the offence, it would not be sufficient to meet the s. 29 test for committal because it would have no probative value.

[64] This is to be distinguished from a case that depends solely upon hearsay. If the hearsay statement contains direct evidence of guilt, albeit second or third hand, the judge would nevertheless be required to commit, since the judge's function does not include the power to pass on the reliability of that evidence.

Admission of the record of the case in this case

[65] As I have indicated, the appellant submitted that the certification of the initial record of the case is demonstrably false since it left the impression that the victim was available to testify at trial. Dilks J. concluded that a "reasonable reading of the affidavit is such that the information contained therein and the summary of the case comes wholly from persons who do not include the victim". I have considerable difficulty with the proposition that this is a reasonable reading of the initial affidavit. I repeat the critical line from the Assistant District Attorney's affidavit:

The following is a summary based upon information that I have personally received from conversations and/or Grand Jury testimony of the victim/complainant, the several eyewitnesses, the police officers who were at the scene of the incident, from reviewing the Grand Jury minutes, the indictments in the case, in addition to the Criminal Court Papers, other documentation, and the New York City Police Department documents in connection with the above cases.

(Emphasis added)

[66] It seems to me that, at best, the affidavit is unclear as to who or what were the sources of the information for the summary contained in the affidavit. However, I do not agree that this rendered the certification false. The certification is in these terms:

I, Assistant District Attorney Karen Friedman Agnifilo, certify that the evidence summarized or contained in the attached documents is available for trial and:

is sufficient under the law of United States, State of New York, County of New York to justify prosecution,

and,

was gathered according to the law of the United States of America, State of New York, County of New York.

[67] The wording of the certification is consistent with s. 33(3)(a) which requires that the authority certify that the "evidence summarized or contained in the record of the case is available for trial". I do not read s. 33(3)(a) as requiring the prosecuting authority to certify that any particular source of evidence is available, so long as the evidence summarized in the record of the case is available. There is no evidence summarized in the affidavit that could only have come from the victim. This is made plain in the Supplement to the Record of the Case for Prosecution, which is much more detailed and more clearly identifies the source of the evidence to be used at the trial. Similarly, the statement in the letter from the Assistant District Attorney that at the time of the extradition hearing the state had apparently not located all of the eyewitnesses did not render the certification that the evidence was available false. For these reasons, I would not interfere with the decision of the extradition judge admitting the original and supplemental record of the case.

Disposition

[68] Accordingly, I would dismiss the challenge to ss. 32, 33 and 34 of the Extradition Act and dismiss the appeal from the decision of Dilks J. ordering that the appellant be committed into custody to await surrender.

Appeal dismissed.

Notes

Note 1: If a treaty provided for a different procedure, the treaty prevailed under the former Act.

Note 2: For a brief description of the civilian system see B. McKillop, Anatomy of a French Murder Case, The Institute of Criminology Monograph Series (Leichhardt, N.S.W.: Hawkins Press, 19970 and especially c. 12, "Comments on the Case from a Common Law Perspective".