DATE: 20030801

DOCKET: C30530, C32376

COURT OF APPEAL FOR ONTARIO

CRONK, GILLESE and ARMSTRONG JJ.A.

B E T W E E N : )

) Paul Calarco

ESHO YOUSEF ) for the appellant

Appellant )

• and - ) Beverly J. Wilton

) for the respondent

UNITED STATES OF AMERICA )

Respondent )

) HEARD: February 17, 2003

On appeal from the committal order of Justice Frank K. Roberts of the Ontario Court (General Division) (now Superior Court of Justice) dated September 3, 1998 and the application for a judicial review of the Minister of Justice.

GILLESE J.A.:

OVERVIEW

[1] The appellant, Esho Yousef, is alleged to have shot a Chicago man in August 1997 and then fled to Ontario. The United States seeks his extradition on a first-degree murder charge. The extradition judge ordered the appellant committed for surrender to the United States, having determined that the requesting state established a prima facie case against Yousef. In making this determination, the extradition judge relied almost entirely on a statement that Yousef gave to two Chicago police detectives and an Illinois prosecutor who visited him in December 1997 in a Toronto jail, where he was being held pending trial on unrelated Canadian criminal charges. The statement was, in substance, a full confession to the murder.

[2] Before interviewing Yousef, the American officials gave him the standard “Miranda”[^1] warnings required by American constitutional law as a precondition to the admissibility of any statement given by an in-custody suspect. However, those warnings did not fully comply with the warnings required for admissibility of such statements in Canadian courts pursuant to s. 10(b) of the Canadian Charter of Rights and Freedoms. The extradition judge rejected the argument that Yousef’s statement was obtained in violation of the Charter.

[3] The appellant brought a separate judicial review application against the decision of the Minister of Justice to surrender him to the United States. However, he has abandoned that proceeding because the Minister obtained an assurance from the United States that the State of Illinois will neither seek nor impose the death penalty against Yousef should he be surrendered.

[4] Before this court, the appellant renews his Charter arguments relating to the admissibility of the statement. Assuming that the Charter does apply in such circumstances, I would dismiss the appeal on the basis that the statement was properly admitted under s. 24(2) of the Charter.

BACKGROUND

[5] The following factual summary is based on the statement that Yousef gave to the American investigators and the documents upon which the United States relies in support of its extradition request. Yousef did not testify at the extradition hearing or offer any contrary version of events.

[6] In August 1997, a man whom Yousef knew was involved in selling cocaine, hired Yousef to act as his bodyguard. Yousef learned, from the man, that a “well-dressed guy” was selling cocaine through a middleman named Ruben Loyola. The man, whom Yousef refused to identify and who shall be referred to as Yousef’s employer, wanted to deal directly with the “well-dressed guy” and decided to kill Loyola to achieve that result.

[7] On August 13, 1997, the employer drove Yousef to Loyola’s apartment building, handed him a handgun and instructed him to go inside and kill Loyola. Yousef went to the apartment, with the loaded gun tucked in his waistband, and rang the doorbell several times but no one answered. He returned to the employer’s car and handed back the gun. The two men drove off and the employer told Yousef to “forget about Ruben.”

[8] The following afternoon, Yousef was at his girlfriend’s apartment. The employer visited him there and, as he left the apartment, said he would be back later to talk to Yousef about Loyola. The employer returned later that afternoon accompanied by Cesar Reyes. The employer said, “Let’s go to Cesar’s house, because Ruben is going to be there.” The three men drove (in two cars) to Reyes’ home. As Yousef left his employer’s vehicle, the employer said, “Man, you gotta do this for me.” Yousef did not immediately know what the employer meant by this statement.

[9] Once inside the apartment, Reyes told Yousef “We have to wait for somebody – they’re gonna come to move a lot of cocaine.” After waiting for about a half hour, Yousef heard noises in the rear of Reyes’ apartment. He walked to the laundry room, where the back door was located, and saw Loyola. Reyes was standing behind Loyola.

[10] It was then that Yousef realized what his employer meant by the comment, “you gotta do this for me.” The employer wanted Yousef and Reyes to ambush and kill Loyola inside Reyes’ apartment.

[11] Reyes pulled a twelve-inch kitchen-type knife from a pile of laundry and stabbed Loyola. Loyola screamed and Reyes tried to stab him several more times. Then Reyes ran past Yousef toward the front door. Loyola tried to unlock the back door to escape.

[12] Yousef had the same handgun that his employer had given him the day before. This time, however, Reyes had given him the gun when the two of them arrived at Reyes’ apartment.

[13] As Loyola attempted to escape, Yousef decided that he had to kill him. He pulled the gun out of his waistband, aimed it at Loyola and pulled the trigger but the weapon did not fire.

[14] Loyola then managed to get the back door open and ran outside screaming for help.

[15] Yousef ran towards the front door but, before leaving the apartment, he tested the gun to see whether it would fire. He pushed the gun against one of the cushions on a couch in the front room and pulled the trigger. The gun discharged into the cushion. Yousef then left the apartment to shoot Loyola whom he could see standing in the rear yard of the house just to the north of Reyes’ apartment building, talking on a cell phone. A man was standing next to Loyola, near a barbecue.

[16] As Yousef approached Loyola, with the gun in his hand, Loyola jumped behind the other man. The other man stated, “I don’t want no trouble.” Loyola said, “You’re not going to shoot me – I’ve got a witness here with me.”

[17] When Yousef was about three feet away from the two men, he pushed the witness away and shot Loyola, hitting him in the stomach. As he got closer to Loyola, Yousef kept firing; Loyola fell to his knees and grabbed at Yousef’s legs. Yousef shot Loyola once in the back of his head. When Loyola did not loosen his grip, Yousef fired two more shots at the back of Loyola’s head.

[18] The witness ran away. In a “will-say” portion of the prosecutor’s affidavit filed in these proceedings, the witness corroborates Yousef’s version of events.

[19] An autopsy report shows that Loyola died after receiving gunshot wounds to the head, back, left arm and left shoulder.

[20] Chicago Police Detective Anthony Wojcik discovered Loyola’s body. There were eight .9 mm Luger cartridge cases nearby the body, along with a cell phone. Inside Reyes’ apartment, Detective Wojcik found a .9 mm cartridge case, a black-handled kitchen knife with blood on it and a cushion with a gunshot hole through it. The police also found a large green duffle bag in the apartment that contained cocaine and drug paraphernalia.

[21] After the shooting, Yousef ran back onto the street where he spied Reyes’ car. He and Reyes drove toward Wisconsin. Yousef wrapped the gun in his shirt and threw the weapon out the window. The two men called their employer and then met with him in a Waukegan, Illinois mall. The three men drove to Racine, Wisconsin. Yousef and his employer dropped off Reyes[^2] and the employer took Yousef to a hotel in Niles, Illinois.

[22] The next day, the employer picked up Yousef at the hotel, handed him $600, drove him to Union Station in Chicago and told him never to contact him. Yousef fled to Canada, eventually making his way to Toronto where he was arrested and charged with a number of Criminal Code offences. He was remanded to the Toronto West Detention Centre.

THE STATEMENT

[23] On December 1, 1997, Chicago Detective Wojcik, Detective Daniel Engel and Cook County prosecutor Patrick Kelly met with Yousef at the Toronto West Detention Centre for more than four hours.

[24] A Metropolitan Toronto Police officer, Sylvie Parent, accompanied the American investigators but did not participate in the questioning.

[25] Wojcik describes the visit in the following terms:

After we each introduced ourselves, Patrick Kelly told Yousif that we were there to investigate the murder of Ruben Loyola … . After Patrick Kelly explained that he went on to recite Esho Yousif’s rights, pursuant to the United State’s [sic] Constitution, which are commonly referred to as the “Miranda Rights.” Patrick Kelly asked Yousif if he understood that he had the right to remain silent and that anything Yousif said or did could be used against him in a court of law. Yousif told us that he understood that right. Kelly asked Yousif if he understood that he had the right to have an attorney present with him during our questioning of him. Yousif told us that he understood that right. Kelly went on and asked Yousif if he understood that he had the right to stop the questioning at any time. Yousif told us that he understood that right. Kelly asked Yousif if he understood that if he could not afford a lawyer that he had a right to have a court appointed lawyer represent him free of charge before any questioning. Yousif told us that he understood that right. Finally, Kelly also advised Yousif that he would be extradited to the United States and tried and sentenced under United States and Illinois law. Yousif said that he understood that.

After Kelly had explained each of these rights to Yousif, Kelly asked Yousif if he wanted to answer our questions and speak to us about the fatal shooting of Ruben Loyola. Yousif said that he would speak to us. At that time, the three of us had a conversation with Yousif. At the end of our conversation, Kelly asked Yousif if he would like to have what he had told us transcribed by a court reporter or written out by Kelly. Kelly explained to Yousif that either way, he would be able to review his statement, make any corrections, additions or changes to it and sign the final statement if he agreed with its contents. Yousif said that he understood what a court reported statement was, but that he wanted to have Kelly write out the statement and have the opportunity to review it.

Patrick Kelly then prepared a sixteen (16) page handwritten statement, which had various photo Exhibits A through H attached to it. Yousif read a portion of the handwritten statement aloud to us to demonstrate that he could read as he said he could. Yousif read along as Kelly read out the entire statement to him. He also initialed various corrections, which were made to the statement, along with the rest of us. Furthermore, Yousif signed each page at the bottom, along with each of us and he also signed twice on page (1), after his “Miranda Rights,” which appear typewritten on that page, had been read out loud to him and after he again indicated that he understood them. He also signed the back of the Statement Exhibits (A through H) and the front side of the Polaroid photo of Cesar Reyes marked as Exhibit B along with the rest of us. …

[26] The typewritten Miranda statement referred to in the above passage reads as follows:

I understand that I have the right to remain silent and that anything I say can be used against me in a court of law. I understand that I have the right to talk to a lawyer and have him present with me during questioning, and if I cannot afford to hire a lawyer one will be appointed by the court to represent me before any questioning. Understanding these rights, I wish to give a statement.

[27] On December 2, 1997, the Circuit Court of Cook County, Illinois, issued a warrant for Yousef’s arrest for the murder of Ruben Loyola.

JUDGMENT BELOW

[28] The extradition judge determined, on the basis of Yousef’s statement taken at the Toronto detention centre, that the requesting state had made out a prima facie case under the Extradition Act.[^3] He held that the requesting state had proved that the person who allegedly committed the crime in Chicago was Esho Yousef and that the alleged crime met the test required for extradition.

[29] In admitting the statement, the extradition judge held that the persons taking the statement were not Canadian actors and thus the Charter did not apply to their actions. Alternatively, he held that the Miranda warning was in sufficient compliance with the Charter to be admitted at an extradition hearing.

[30] He then ordered Yousef committed for surrender.

THE PARTIES’ POSITIONS

[31] At the extradition hearing and before this court, Yousef did not contest that he voluntarily gave the statement to the American investigators. He asks this court to rule the statement inadmissible, however, on the basis that the Charter applied to his in-custody interrogation. The interrogation took place while he was held in a Canadian jail, subject to Canadian criminal charges and under the control of Canadian authorities. The investigators could not have had access to him but for the permission and involvement of the jail superintendent who had statutory duties for the management of the prison as well as the housing and protection of inmates and the regulation of visitors.

[32] Yousef argues that his rights pursuant to s. 10(b) of the Charter were breached due to the investigators’ failure to inform him that he had the right to obtain immediate assistance from duty counsel and to access a lawyer through a toll-free telephone service.

[33] The respondent argues that even if the American investigators could, in these circumstances, be described as agents of Canadian authorities, it does not necessarily follow that they were required to adhere to the same Charter standards as those that apply to Canadian authorities. Alternatively, the respondent argues that administration of the Miranda warning was sufficient to fulfill the Charter requirements. Finally, the respondent argues that, in any event, the statement is admissible pursuant to s. 24(2) of the Charter.

ANALYSIS

[34] For the purpose of this appeal, I will assume that the Charter applied to Yousef’s interrogation and that Yousef’s s. 10(b) rights were infringed.

[35] Section 24(2) of the Charter provides that:

24. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[36] In R. v. Collins (1987), 1987 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.). the Supreme Court of Canada set out the three factors that are relevant to a determination whether evidence ought to be excluded pursuant to s. 24(2). These are the fairness of the trial, the seriousness of the violation and the effect of excluding the evidence on the administration of justice.

[37] The burden of persuasion on the question whether admission of the evidence would tend to bring the administration of justice into disrepute rests on the party seeking exclusion of the evidence: Collin, supra.

[38] As Lamer C.J.C. noted in R. v. Bartle (1994), 1994 64 (SCC), 92 C.C.C. (3d) 289 at 315 (S.C.C.), the Crown also bears the burden of establishing that the appellant would not have acted any differently had his s. 10(b) rights been fully respected and that, as a consequence, the evidence would have been obtained irrespective of the s. 10(b) breach. Lamer C.J.C. concluded, at 316:

Section 24(2) applicants thus do not bear the burden of proving that they would have consulted counsel had their s. 10(b) rights not been infringed. Of course, once there is positive evidence supporting the inference that an accused person would not have acted any differently had his or her s. 10(b) rights been fully respected, a s. 24(2) applicant who fails to provide evidence that he or she would have acted differently (a matter clearly within his or her particular knowledge) runs the risk that the evidence on the record will be sufficient for the Crown to satisfy its legal burden (the burden of persuasion).

[39] In R. v. Harper, 1994 68 (SCC), [1994] 3 S.C.R. 343, the Supreme Court of Canada considered the admissibility of a statement made after a breach of s. 10(b). The appellant in that case, on trial for assault causing bodily harm (domestic context), established that he had been denied his informational right under s. 10(b) (duty counsel and the 1-800 number). The appellant did not testify on the voir dire dealing with the admissibility of his statement, which amounted to a confession. Nor did the appellant tender any evidence showing that he would have contacted duty counsel had he been informed of their existence and how to access the service.

[40] Lamer C.J.C. held that the Crown had discharged its burden to establish that the police’s failure to comply fully with the informational requirements did not affect the appellant’s behaviour. He found that the appellant “had an almost irresistible desire to confess” even after being advised of his right to counsel. Consequently, Lamer C.J.C., for the majority, concluded that the incriminating statement would have been made even if the appellant’s s. 10(b) rights had not been violated.

[41] In this case, the appellant gave a complete confession after receiving a full Miranda warning and after extensive efforts had been made to ensure that he understood and had the opportunity to decide whether to exercise those rights. There is nothing on the record to suggest that he would have acted differently had he been provided with the full s. 10(b) warning. As was the case in Harper, the appellant never testified nor did he tender any evidence showing that he would have contacted duty counsel had he been informed of their existence and how to access the service. There is similarly no evidence that the appellant would have refused to speak to the investigators in the circumstances.

[42] In the circumstances, I have no difficulty in concluding that Yousef had an “almost irresistible desire to confess”. Accordingly, I conclude that admission of the statement into evidence did not render the extradition hearing unfair.

[43] As to the seriousness of the breach, I conclude that the violation was neither serious nor a flagrant breach of the appellant’s rights. There is no suggestion that the American investigators acted other than in good faith. They took pains to inform Yousef of his American constitutional rights. It is evident that they complied fully with the Miranda rules. The appellant does not contest the voluntariness of the statement he made to the investigators. There is no suggestion that he was in any way abused or coerced into making the statement. The account of the interrogation was not challenged; that account included the appellant telling the American investigators that he understood his right to consult with counsel prior to any questioning and to have a lawyer present with him during questioning.

[44] As to the third prong of the Collins test, I conclude that the admission of the evidence at the extradition hearing would not bring the administration of justice into disrepute.

[45] The seriousness of the offence with which the appellant is charged and the reliability and importance of the evidence are relevant factors in determining the effect on the administration of justice of the admission or exclusion of the evidence. It need hardly be stated that murder is the most serious of all crimes. The confession is very powerful evidence of Yousef’s involvement in the murder of Ruben Loyola. No question as to its reliability has been raised. The American investigators complied fully with their obligations under the United States Constitution. Canada has an international Treaty obligation to return fugitives to the Untied States when that country establishes, among other things, the conditions for a warrant of committal. There is a compelling public interest in having this matter tried in the jurisdiction in which the crime was alleged to have taken place.

[46] Accordingly, I am satisfied that the extradition judge did not err in admitting the statement into evidence.

DISPOSITION

[47] For the reasons given, I would dismiss the appeal.

RELEASED:

“AUG –1 2003” “E. E. Gillese J.A.”

“EAC” “I agree E. A. Cronk J.A.”

“I agree Robert P. Armstrong J.A.”

[^1]: See Miranda v. Arizona, 384 U.S. 436 (1966).

[^2]: A Cook County grand jury indicted Reyes on a charge of first-degree murder in September 1997.

[^3]: Counsel for the respondent stated at the extradition hearing that it was relying only on the confession, not on the hearsay witness statements contained in the affidavits of the prosecutor and of the detective. If the statement is ruled inadmissible, there will not be evidence sufficient to support a prima facie case.