The United States of America v. Sepehri

[Indexed as: United States of America v. Sepehri]

68 O.R. (3d) 691

[2003] O.J. No. 5152

Docket No. C39946

Court of Appeal for Ontario

Doherty, Laskin and Blair JJ.A.

December 19, 2003

*Vous trouverez la traduction française à la p. 700, post.

Criminal law -- Extradition -- Test for committal -- Fugitive convicted of criminal harassment in California -- United States seeking fugitive's extradition -- Extradition judge holding that United States had failed to prove on balance of probabilities that conduct giving rise to California conviction corresponded to Criminal Code offence of criminal harassment as California penal law not requiring proof that conduct of accused caused victim to reasonably fear for her safety -- Section 29(1)(b) of Extradition Act places balance of probabilities onus on party seeking extradition -- Transcript of victim's testimony at California trial being admissible pursuant to s. 32(1)(c) of Extradition Act as relevant and reliable -- Not unreasonable for extradition judge to conclude that he was not satisfied that fugitive's conduct had caused victim to reasonably fear for her safety -- Appeal from order discharging fugitive dismissed -- Criminal Code, R.S.C. 1985, c. C-46 -- Extradition Act, S.C. 1999, c. 18, ss. 29(1)(b), 32(1)(c) [page692]

The respondent was convicted in California of various offences, including criminal harassment. He fled to Canada. The United States sought his extradition. The extradition judge committed the respondent for extradition on all charges except the harassment charge. He held that the United States had failed to prove on the balance of probabilities that the conduct giving rise to the conviction in California corresponded to the offence of criminal harassment as set out in s. 264(1) of the Criminal Code. In reaching that conclusion, the extradition judge observed that unlike the Canadian crime of harassment, the harassment charge under California penal law did not require proof that the conduct of the accused caused the victim to reasonably fear for her safety. The Record of the Case submitted by the United States included a description of the conduct for which the respondent was convicted, and stated that the victim was frightened when she was confronted by the respondent. Over the objection of counsel for the United States, the extradition judge admitted the transcript of the victim's testimony at the California trial. He concluded that he was not satisfied on the totality of the evidence that the victim had feared for her safety as a result of the respondent's conduct. He ordered the respondent discharged on the harassment charge. The United States appealed.

Held, the appeal should be dismissed.

Section 29(1)(b) of the Extradition Act places a balance of probabilities onus on the party seeking extradition. Section 29(1)(b) requires, in the case of a person sought for the imposition or enforcement of a sentence, that the extradition judge be "satisfied that the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed and that the person is the person who was convicted". The use of the word "satisfied" connotes a balance of probabilities standard.

Under the California Penal Code, the prosecution was required to prove that the accused intended to place the victim in reasonable fear for her safety but was not required to prove that the victim reasonably feared for her safety as a result of the accused's conduct. Criminal harassment, as defined in s. 264 of the Criminal Code, requires that the prosecution prove that the harassing conduct "causes that other person reasonably in all of the circumstances to fear for their safety".

The extradition judge was entitled to admit the transcript of the victim's testimony pursuant to s. 32(1)(c) of the Act. The conduct underlying the California offence was very much in issue and the transcript which was admittedly reliable, provided the victim's sworn version of that conduct.

On appeal, the United States was required to show that no reasonable trier of fact would have failed to conclude on the balance of probabilities that the United States had established the preconditions to extradition set out in s. 29(1)(b) of the Act. The trial judge's conclusion that the United States had failed to meet its onus was not unreasonable or against the evidence.

APPEAL from a judgment of the extradition judge ordering a fugitive discharged.

The judgment of the court was delivered by

Cases referred to Philippines (Republic) v. Pacificador (Re) (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, 64 O.A.C. 344, 19 Imm. L.R. (2d) 241, [1993] O.J. No. 1753 (QL) (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. Chabot, 1980 54 (SCC), [1980] 2 S.C.R. 985, 117 D.L.R. (3d) 527, 34 N.R. 361, 55 C.C.C. (2d) 385, 18 C.R. (3d) 258; United States of America v. Persaud, [1999] O.J. No. 4992 (QL), [1999] O.T.C. 237 (S.C.J.); United States v. Bonamie (2001), 96 Alta. L.R. (3d) 252, [2002] 1 W.W.R. 247, 90 C.R.R. (2d) 269, 2001 ABCA 267, [2001] A.J. No. 1334 (QL) (C.A.) [page693] Statutes referred to California Penal Code Criminal Code, R.S.C. 1985, c. C-46, s. 264 Extradition Act, S.C. 1999, c. 18, ss. 29, 32(1), 33(1), 55(1) Authorities referred to Krival, E., T. Beveridge and J. Hayward, A Practical Guide to Extradition (Toronto: Carswell, 2002)

Beverly Wilton, for appellant. Gregory Lafontaine, for respondent.

DOHERTY J.A.: --

I

[1] The respondent was convicted in California of various offences, including criminal harassment. He fled the United States during his trial, was convicted in absentia and was eventually arrested in Canada. The United States seeks his extradition on the charges for which he was convicted, including the harassment charge, as well as two additional charges that are outstanding against the respondent in the United States.

[2] At the extradition hearing, the respondent moved for a stay alleging abuse of process. That motion was dismissed and there is no appeal from that order.

[3] The extradition judge ordered the respondent committed for extradition on all charges except the harassment charge. He held that the United States had failed to prove on the balance of probabilities that the conduct giving rise to the conviction in California corresponded to the offence of criminal harassment as set out s. 264(1) of the Criminal Code, R.S.C. 1985, c. C-46. In reaching that conclusion, the extradition judge observed that unlike the Canadian crime of harassment, the harassment charge under California penal law did not require proof that the conduct of the accused caused the victim to reasonably fear for her safety. The extradition judge was not satisfied on the totality of the evidence that the victim had feared for her safety as a result of the respondent's conduct. He ordered the respondent discharged on the harassment charge. [page694]

[4] The United States appealed the discharge on the harassment count. There is no appeal from the committal for extradition on the other charges.

[5] The appellant advanced three arguments on appeal. Counsel submitted that the extradition judge erred in law in placing a balance of probabilities onus on the United States under s. 29(1)(b) of the Extradition Act, S.C. 1999, c. 18 (the "Act"). Counsel further submitted that the extradition judge erred in law in admitting a transcript of the evidence given by the victim in the California proceedings. Lastly, counsel contended that even if the trial judge did not commit the two errors outlined above, he erred in holding that the United States had not met its onus under s. 29(1)(b) of the Act.

[6] At the conclusion of oral argument, the court indicated that the appeal was dismissed with reasons to follow.

[7] I agree with the trial judge that s. 29(1)(b) places a balance of probabilities onus on the party seeking extradition. I also think that the trial judge was entitled to admit the transcript of the victim's testimony pursuant to s. 32(1)(c) of the Act. Lastly, I cannot say that his conclusion that the United States had failed to meet its onus was unreasonable or against the evidence.

II

[8] The harassment charge in the California indictment reads:

On or about and between April 14, 2000 and May 3, 2000, in the County of Santa Clara, state of California, the crime of stalking, in violation of Penal Code s. 646.9(a) a felony, was committed by [the respondent] who did willfully, maliciously, and repeatedly follow and harass Jane Doe and make a credible threat with the intent to place her in reasonable fear for her safety and/or the safety of her immediate family.

[9] It was common ground in argument before this court that under California law, the prosecution was not required to prove that the victim reasonably feared for her safety as a result of the conduct of the accused. Under the California Penal Code, the prosecution was required to prove that the accused intended to place the victim in reasonable fear for her safety. Criminal harassment, as defined in s. 264 of the Criminal Code, the corresponding offence relied on by the United States in its extradition request, requires that the prosecution prove that the harassing conduct "causes that other person reasonably, in all of the circumstances, to fear for their safety".

[10] The Record of the Case submitted by the United States on the extradition hearing included a description of the conduct for which the respondent was convicted in California as required by [page695] s. 33(1)(b)(ii) of the Act. According to that description, the victim was frightened on each of the three occasions when she was confronted by the respondent.

[11] Over the objection of counsel for the United States, the extradition judge admitted a transcript of the victim's evidence given in the California proceedings. In doing so, he relied on s. 32(1)(c) of the Act, which permits the admission of evidence that is reliable and relevant. The reliability of the transcript was acknowledged and the extradition judge held that it was relevant since it described the conduct of the respondent and the victim's reaction to that conduct. The victim's description of her state of mind when confronted by the respondent was inconsistent with the information contained in the Record of the Case. The victim's evidence arguably negated any contention that she feared for her safety as a result of the respondent's harassing conduct.

[12] The extradition judge also admitted the transcript of the evidence given by the investigating officer at the California proceedings. That evidence supported the contention that the victim was afraid because of the respondent's harassing conduct.

[13] Relying primarily on the transcript of the victim's evidence, the extradition judge held

This evidence falls far short of establishing or even raising an inference that she feared for her safety.

[14] The extradition judge went on to hold that absent a finding that the victim feared for her safety, it could not be said that the conduct underlying the California conviction corresponded to the offence of criminal harassment as defined in the Criminal Code.

III

The Onus of Proof

[15] The test to be applied in determining whether to commit a person for an extradition is set out in s. 29(1) of the Act:

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; and

(b) in the case of a person sought for the imposition or enforcement of a sentence, the judge is satisfied that the conviction was in respect of [page696] conduct that corresponds to the offence set out in the authority to proceed and that the person is the person who was convicted.

(Emphasis added)

[16] Section 29(1)(a) addresses situations in which the target of the extradition has been charged in the foreign state but has not been convicted. Section 29(1)(b) addresses extraditions requests where the target has been convicted in the foreign state.

[17] The motion judge described the onus in s. 29(1)(b) in these terms:

I must be satisfied that the conduct for which [the respondent] was convicted would more probably than not, correspond to each and every element of the offence set out in the ATP [Authority To Proceed].

[18] I agree that the use of the word "satisfied" in s. 29(1) (b) connotes a balance of probabilities standard: Philippines (Republic)v. Pacificador (1993), 1993 3381 (ON CA), 14 O.R. (3d) 321, 83 C.C.C. (3d) 210 (C.A.), at pp. 324-25 O.R., p. 214 C.C.C., leave to appeal to S.C.C. refused (1994), 87 C.C.C. (3d) vi. The party seeking extradition must prove on the balance of probabilities that:

-- the foreign conviction is in respect of conduct that corresponds to the Canadian offence relied on by the party seeking extradition;

-- the person before the extradition court is the person who was convicted in the foreign court.

[19] While the appellant concedes that the balance of probabilities standard applies to identity, the second of the two issues described above, the appellant maintains that a much different standard applies to the first. The appellant contends that any evidence to establish the requisite correspondence is sufficient. Section 29(1)(b) uses the word "satisfied" in reference to both issues. It would be contrary to basic principles of statutory interpretation to read the same word as simultaneously having two very different meanings in the same sentence: R. v. Chabot, 1980 54 (SCC), [1980] 2 S.C.R. 985, 55 C.C.C. (2d) 385, at p. 1005 S.C.R., pp. 400-01 C.C.C.

[20] Counsel for the appellant submitted that logic dictated that post-conviction extradition should be easier than extradition before trial. She argued that the imposition of a balance of probabilities standard in s. 29(1)(b) of the Act defies this logic by imposing a higher burden on post- conviction extradition requests than the burden on requests for extradition of persons facing charges under s. 29(1)(a). I disagree with this submission. First, while I think the Act is clearly intended to provide a simplified means of extraditing those convicted in foreign jurisdictions [page697] (see E. Krival, T. Beveridge, J. Hayward, A Practical Guide to Extradition (Toronto: Carswell, 2002) at pp. 234-37), a balance of probabilities standard does not complicate that process, given the measures available in the Act and in the various treaties to facilitate proof of the facts described in s. 29(1) (b).

[21] I also do not find the comparison between the burdens of proof in the two subsections of s. 29 helpful. The two subsections address very different situations and, not surprisingly, do so in different ways. Section 29(1)(a) is a pre-trial process. The onus described in s. 29(1)(a) is the onus customarily used in Canadian criminal law to screen out those charges which do not merit trial. It is entirely consistent with Canadian criminal practice to use this standard in determining whether persons should be extradited to foreign countries to face trial. Section 29(1)(b) is not a pre-trial process. It is concerned with the identity of the person before the extradition court and with the question of whether the conduct underlying the foreign conviction corresponds to the conduct targeted by the Canadian offence. To the extent that the inquiry is factual, it looks to past or existing events. A balance of probabilities standard is the usual standard applied to a fact-finding inquiry. The use of the word "satisfied" confirms that the usual standard is meant to apply to this fact-finding process.

[22] I also see no merit in the contention that a balance of probabilities standard will disrupt the effective and efficient operation of the extradition process in cases where there has been a conviction entered in the foreign state. Given the means provided in the Act and in various treaties to establish the necessary criteria for extradition, I would think that in the vast majority of cases, proof on the balance of probabilities that the foreign conviction was in respect of conduct that corresponds to the identified Canadian offence will be a straightforward matter: e.g., see United States of America v. Bonamie, 2001 ABCA 267, [2001] A.J. No. 1334 (QL), 90 C.R.R. (2d) 269 (C.A.), at para. 31. In deciding whether the requesting state has discharged its burden under s. 29(1)(b), the validity of the foreign conviction must be accepted: Krival, A Practical Guide to Extradition, supra, at pp. 237-38.

[23] Difficulties in meeting the required onus arose in the case for two reasons. First, the corresponding Canadian offence contained an element which was not essential to the proof of the California charge. Consequently, the fact that the respondent was convicted in California did not, in and of itself, establish that his conviction was in respect of conduct that corresponded to the Canadian offence. Secondly, the information relied on by the United States to establish the needed additional element was contradicted by the transcript of the victim's evidence given in [page698] the California proceedings. I would think contradictions between the material submitted by the state requesting extradition and the evidence relied on to secure the conviction in the foreign state would be rare.

[24] The appellant also argues that a lower onus of proof was applied in United States of America v. Persaud, [1999] O.J. No. 4992 (QL), [1999] O.T.C. 237 (S.C.J.), and in Bonamie, supra. Neither case addresses the onus of proof under s. 29(1)(b). Ewaschuk J. in Persaud comments, at para. 15:

What s. 29(1)(b) requires is merely a summary of the material facts underlying the foreign convictions. In this case, the documents filed in support of the application make no reference whatsoever to the factual conduct underlying the convictions which will permit me to determine whether the conduct corresponds to the Canadian offences set out in the authority to proceed.

[25] I take no exception to the observations of Ewaschuk J. In this case, unlike Persaud, there was evidence of the factual conduct underlying the American conviction. However, the evidence was not all one way. In my view, the extradition judge was required to consider all of the evidence and decide whether he was "satisfied" that the conduct underlying the California conviction corresponded to the Canadian offence.

[26] Although I agree with the trial judge's holding that s. 29(1)(b) requires proof on the balance of probabilities of both factual issues referred to in that provision, I would not want to be taken as necessarily agreeing that s. 29(1)(b) requires an exact correspondence between the conduct underlying the American offence and each and every element of the Canadian offence. It may be that the word "corresponds" in s. 29(1)(b) permits some variation between the conduct underlying the American offence and the constituent elements of the Canadian offence. This appeal was argued on the basis that evidence that the victim feared for her safety was necessary to establish the requisite correspondence between conduct underlying the American offence and the Canadian offence relied on for the purpose of extradition. I leave the exact meaning of the word "corresponds" to a case where its meaning is put in issue.

The admissibility of the transcript of the victim's evidence

[27] Section 32(1)(c) of the Act reads:

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:

(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. [page699]

[28] Counsel for the appellant submitted that the transcript of the victim's testimony was not relevant because the information in the Record of the Case by the United States established that the victim feared for her safety. Counsel contended that as the extradition judge was not entitled to weigh evidence on the extradition proceeding, evidence which contradicted that provided in the Record of the Case was irrelevant and therefore inadmissible. Counsel acknowledged in oral argument that this submission depended on the court accepting her primary submission that the extradition judge misapprehended the burden of proof under s. 29(1)(b). Counsel acknowledged that if the balance of probabilities standard was applicable, then the transcript of the victim's evidence was relevant in that it contained evidence of the conduct underlying the California charges and in particular, evidence of the victim's state of mind.

[29] Having concluded that the balance of probabilities standard is the appropriate onus under s. 29(1)(b), it follows that I find no error in the trial judge's admission of the transcript of the victim's testimony. The conduct underlying the California offence was very much in issue and the transcript, which was admittedly reliable, provided the victim's sworn version of that conduct.

The reasonableness of the discharge order

[30] Section 55(1)(a)(i) of the Act allows this court to set aside a discharge order if that discharge is "unreasonable and cannot be supported by the evidence". This is the same standard of factual review applied in this court on conviction appeals. The standard is however more difficult for this appellant to meet since, unlike the accused on a conviction appeal, this appellant carried the burden of proof at the extradition hearing. The appellant must show that no reasonable trier of fact would have failed to conclude on the balance of probabilities that the appellant had established the preconditions to extradition set out in s. 29(1)(b) of the Act.

[31] I think it can be fairly said that on the entirety of the material, some judges would have come to the conclusion on the balance of probabilities that the victim feared for her safety as a result of the respondent's conduct. Even the victim's evidence, especially taken in combination with her actions at the time of the relevant events, could support a finding that she feared for her safety.

[32] This court cannot interfere with the decision made by the extradition judge on the basis that a different conclusion could reasonably have been reached. The victim's evidence as [page700] to her state of mind is unclear and arguably internally inconsistent. The extradition judge focused on these ambiguities and inconsistencies in determining whether the appellant had satisfied him that the victim feared for her safety at the relevant time. While the conclusion reached by the extradition judge may not be the conclusion that I would have reached, I cannot describe that conclusion as unreasonable or unsupported by the evidence.

IV

[33] For the reasons set out above, the appeal is dismissed.

Appeal dismissed.