DATE: 20040310

DOCKET: C37643

COURT OF APPEAL FOR ONTARIO

LASKIN, MOLDAVER and GOUDGE JJ.A.

B E T W E E N:

UNITED STATES OF AMERICA

Paul Slansky for the appellant

(Respondent)

D. D. Graham Reynolds, Q.C.

• and -

and Chris de Sa for the

Respondent

MICHAEL McDOWELL

(Appellant)

HEARD: December 16 & 17, 2003

On appeal from the order of Justice Arthur C. Whealy of the Superior Court of Justice dated January 30, 2002, committing the appellant for surrender to the United States of America.

MOLDAVER J.A.:

[1] The appellant Michael McDowell appeals from the order of Whealy J., dated January 30, 2002, committing him for surrender to the United States of America in respect of the following offence specified in the Authority to Proceed: Conspiracy to launder the proceeds of an offence under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, contrary to s. 9(1) of that Act and s. 465(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46. The appellant raises four grounds of appeal. Of these, three can be dealt with summarily.

GROUNDS OF APPEAL

Three Miscellaneous Grounds

[2] First, the appellant’s constitutional attack on s. 32 of the Extradition Act, S.C. 1999, c. 18 and related provisions fails for the reasons given by this court in the United States of America v. Yang (2001), 2001 20937 (ON CA), 56 O.R. (3d) 52 (C.A.).

[3] Second, there is no merit in the appellant’s submission that the record of the case was falsely certified because it states that the evidence summarized in it, including evidence from a confidential informant, is available at trial. The appellant has not provided any evidence to contradict that statement. He merely speculates that the informant may choose to remain anonymous and not testify. That is not a basis for doubting the veracity of the certification.

[4] His further submission that the informant’s evidence should be excised from the record because it is inherently unreliable also fails: See Yang, supra, at paras. 49 and 50.

[5] Finally, for the reasons of this court in United States of America v. Patrick Manningham (File No. C33598), released concurrently, I would not give effect to the appellant’s submission that the extradition judge erred in failing to consider whether the conduct summarized in the record of the case supported not only the offence identified in the Authority to Proceed but the offence or offences identified in the foreign indictment as well. I would also reject the appellant’s submission that the evidence in the record of the case does not support the offence of conspiracy to launder the proceeds of crime specified in the Authority to Proceed. The extradition judge found that the evidence was sufficient to implicate the appellant and his co-conspirator Jeffrey Burns in a “continuing conspiracy … to launder drug proceeds supplied by the affiant [Detective Wilfredo Hernandez of the Fort Lauderdale City Police Department]”. That finding was open to him and there is no basis for interfering with it.

Ground Four

(a) Was the appellant properly identified as the person sought for extradition?

[6] With those issues off the table, the only ground of appeal left for consideration is whether the record of the case contains admissible evidence identifying the appellant as the person sought for extradition. The answer to that question hinges on the interpretation of s. 32 of the Act, which reads as follows:

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.

[7] The particular issue to be decided is whether under s. 32(2), identification evidence gathered in Canada and otherwise admissible under Canadian law can be admitted as part of the record of the case. The appellant submits that it cannot. He points to s. 32(2) and maintains that in this case, given the nature of the evidence relied upon to establish his identity (first hand observations made by Detective Hernandez upon the appellant’s arrest in Canada), to “satisfy the rules of evidence under Canadian law”, that evidence must take the form of viva voce testimony presented at the extradition hearing.

[8] For reasons that follow, I do not agree with that submission. On the contrary, I am satisfied that the identification evidence presented by Detective Hernandez in the record of the case was admissible and properly received.

(b) Identification evidence of Detective Hernandez

[9] In the record of the case, Detective Hernandez asserted that on March 29, 2000, he was present at RCMP headquarters when the appellant was apprehended on a provisional arrest warrant. He further asserted that after the appellant was allowed to call a legal aid duty counsel, the appellant was introduced to him. Each acknowledged recognizing the other’s voice from previous telephone conversations. Detective Hernandez then provided a physical description of the appellant and he noted that while being processed, the appellant offered “personal biographical and identifying information confirming that he was the same Michael McDowell referred to in the indictment, the arrest warrant, and herein.” Finally, as part of the record of the case, Detective Hernandez identified a photograph of the appellant (attachment B of the record) “taken after his arrest in Canada on March 29, 2000”.

[10] That is the identification evidence in issue. The respondent concedes that it was gathered in Canada. The appellant concedes that Detective Hernandez could have given that evidence had he been called as a witness at the appellant’s extradition hearing. In other words, as viva voce evidence, it was properly admissible and served to identify the appellant as the person sought for extradition.

[11] I agree with these concessions. In the case of the appellant, I would simply add that, regardless of his concession, there is no basis for suggesting that the evidence in question was gathered unlawfully or that it was otherwise inadmissible under Canadian law. Accordingly, the debate boils down to the form in which the evidence was presented.

[12] In oral argument, Mr. Reynolds, for the respondent, acknowledged that s. 32(2) governs the admission of the identification evidence provided by Detective Hernandez. In other words, he accepts that s. 32(2) applies to evidence gathered in Canada that is contained in a record of the case where such record would otherwise be admissible under s. 32(1)(a) of the Act. That is the conclusion which Juriansz J. reached in United States of America v. Martinez, [2000] O.T.C. 131 (Sup. Ct.). At paras. 11 and 12 of his reasons, Juriansz J. analyzed the issue as follows:

Counsel for the extradition partner argued that s‑s. 32(2) had no application to information in a certified record of the case. She pointed out that there are two sentences in s‑s. 32(1) and she contended that the opening limiting words of the subsection, i.e. “subject to subsection (2) …” applied only to the first sentence and s-s. 32(2) had no limiting effect on the second sentence. I find such a construction tortuous. In my view the French version of s-s. 32(1) puts the matter beyond doubt. The French version is comprised of only one sentence and the use of “ainsi que” makes clear that subsection (1) is to be read in totality.[^1]

I conclude, as a matter of statutory construction, that s‑s. 32(2) applies to evidence gathered in Canada that is contained in a record of the case that would otherwise be admissible under para. 32(1)(a) [emphasis added].

[13] That construction of s. 32 would appear to be at odds with LaForme J.’s construction of the same provision in United States of America v. deBarros, [2000] O.J. No. 5664 (Ont. Sup. Ct.). In deBarros, LaForme J. held that affidavits provided by Canadian police officers in Buffalo, New York, which contained evidence gathered in Canada and which formed part of the record of the case were admissible under s. 32(1)(b) of the Act because they had been authorized in accordance with Article 10(2) of the Extradition Treaty between Canada and the United States of America, Can. T.S. 1976 No. 3, which reads:

Article 10(2)

The documentary evidence in support of a request for extradition or copies of these documents shall be admitted in evidence in the examination of the request for extradition when … in the case of a request emanating from the United States, they are authenticated by an officer of the Department of State of the United States and are certified by the principal diplomatic or consular officer of Canada in the United States.

[14] In other words, LaForme J. was of the view that so long as the requirements of s. 32(1)(b) were met, it mattered not that the authenticated documents contained evidence gathered in Canada that would not otherwise be admissible under Canadian law. In such circumstances, it was his view that s. 32(2) did not apply.

[15] In view of the respondent’s concession that s. 32(2) does apply to the identification evidence provided by Detective Hernandez, it is technically unnecessary to resolve the Martinez/deBarros conflict. That said, I believe it would be best to put the matter to rest. Respectfully, I find Juriansz J.’s analysis compelling and I am satisfied that Martinez properly states the law. In addition to the reasons given by Juriansz J., I would simply observe that as a matter of statutory interpretation, this is a clear case in which the general provisions in s. 32(1) must yield to the specific provision in s. 32(2). Moreover, I am satisfied that the Martinez construction is consistent with the policy and legal considerations (discussed below at paragraphs 17 through 23) that inform the meaning of s. 32(2).

(c) Was Detective Hernandez’s identification evidence admissible in the form in which it was presented?

[16] That then brings me to the pivotal issue – does Detective Hernandez’s identification evidence satisfy the rules of evidence under Canadian law? As indicated, that issue depends on whether s. 32(2) is concerned with form and substance, as the appellant submits, or just substance, as the respondent submits.

[17] I have no difficulty resolving that dispute in favour of the respondent. As a matter of policy, I reject the appellant’s position. To give effect to it would be to allow form to triumph over substance and lead to expensive, time-consuming hearings that would disable Canada from complying with its international obligations in a prompt and efficient manner: see United States of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462 at para. 122.

[18] In addition to policy considerations, the appellant’s position is not sound in law for several reasons.

[19] First, as my colleague Rosenberg J.A. explained in Yang at para. 46, of the various principles of fundamental justice that apply in the extradition context, the “form of evidence” presented at the hearing is not one.

[20] Second, the relevant provisions of the Act do not support the position advocated by the appellant. Section 33 of the Act speaks to the contents of the record of the case. It reads as follows:

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

(b) in the case of a person sought for the imposition or enforcement of a sentence,

(i) a copy of the document that records the conviction of the person, and

(ii) a document describing the conduct for which the person was convicted.

(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; or

(b) in the case of a person sought for the imposition or enforcement of a sentence, a judicial, prosecuting or correctional authority of the extradition partner certifies that the documents in the record of the case are accurate.

[21] Significantly, that provision does not prohibit the inclusion of evidence gathered in Canada from the record of the case. On the contrary, s. 33(1)(a) speaks to “a document summarizing the evidence available to the extradition partner for use in the prosecution”, not the evidence, apart from evidence gathered in Canada, available to the extradition partner. Given the significant procedural implications flowing from the appellant’s position, I am satisfied that if Parliament had intended to confine the record of the case to evidence gathered outside of Canada, it would have said so in clear terms. The fact that it did not substantially weakens the appellant’s position.

[22] Finally, there is good reason for Canada to insist that evidence gathered in Canada conform substantively with our rules of evidence. Such a rule does not place an onerous burden on the requesting partner. It does, however, preserve the integrity of our justice system by affording fugitives the protection of our laws and values while they remain in Canada. In that way, the Act provides a front-line check on the methods used by both foreign and domestic law enforcement agencies to collect evidence in Canada.

[23] Insisting that evidence gathered in Canada comply substantively with our rules of evidence is one thing; insisting that it take a certain form is quite another. The latter does nothing to preserve or protect the integrity of our justice system and it creates a barrier to the prompt and efficient discharge of our international obligations.

[24] As it is, matters of this nature tend to drag on far too long. The case at hand is no exception. On March 29, 2000, the appellant was arrested in Canada on a provisional warrant. On January 30, 2002, Whealy J. ordered his committal for surrender. On April 19, 2002, the Minister of Justice authorized his surrender to the requesting state. It is now almost four years from the date of his arrest and the appellant continues to remain in Canada.

[25] That track record hardly speaks to the prompt and efficient discharge of our international obligations. To add another layer of delay to the process by requiring that evidence, lawfully gathered in Canada and otherwise admissible under our rules of evidence, must (absent an exception under our law) take the form of viva voce testimony at an extradition hearing, runs contrary to the spirit and purpose of the Act and the timely fulfillment of our international obligations. Such an interpretation of s. 32(2) should be avoided.

CONCLUSION

[26] The identification evidence provided by Detective Hernandez was lawfully gathered in Canada and properly admissible under Canadian law. There was no requirement that it take the form of viva voce testimony at the extradition hearing. Rather, it was admissible as part of the record of the case.

[27] Accordingly, I would dismiss the appeal.

Signed: “M. Moldaver J.A.”

“I agree John Laskin J.A.”

“I agree S.T. Goudge J.A.”

RELEASED: “JL”MARCH 10, 2004

[^1]: The French version of s. 32(1)(a) reads:

s. 32. (1) Sont admis comme faisant preuve au cours de l’audition de la demande, sous réserve du paragraphe (2), les éléments de preuve admissibles en vertu du droit canadien ainsi que les éléments de preuve suivants même si le droit canadien ne prévoit pas par ailleurs leur admissibilité:

a) le contenu des documents qui font partie du dossier d’extradition certifié en conformité avec le paragraphe 33(3);