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

84 O.R. (3d) 161

Court of Appeal for Ontario,

Moldaver, Goudge and Juriansz JJ.A.

January 26, 2007

Extradition -- Committal -- Test for committal -- Fugitive appealing from committal order and for judicial review of Minster's order -- Fugitive conceding that his attack on Minister's order being dependent on outcome of appeal from committal -- Extradition judge concluding that case against fugitive was weak but met standard for committal -- Extradition judge applying correct standard that that committal required if there is some evidence available for trial upon which reasonable jury, properly instructed, could convict and evidence not being not manifestly unreliable -- Extradition judge not having power to refuse to commit fugitive even if concluding that prospects of conviction slim so long as verdict would not be unreasonable -- Appeal from committal order and review of Minister's order dismissed.

Extradition -- Abuse of process -- Officials of requesting state interviewing witness in Canada -- Evidence gathered in Canada not being admissible as part of record of the case under governing law at that time -- Applicant making inquiries and discovering where witness' evidence was taken -- Official of requesting state calling witness from California and asking her to review her earlier statement -- Information given over telephone being considered evidence gathered outside Canada and being admissible as part of record of case -- Requesting state filing supplemental record which was silent as to date of telephone call and which made no mention of earlier interview in Canada -- Extradition judge not erring in concluding that conduct of requesting state did not warrant extreme remedy of stay of proceedings but that it did warrant sanction of excising witness' evidence from proceedings.

The applicant's extradition was sought by the United States of America in connection with allegations of wire fraud, theft of government property and other offences. The applicant was committed for surrender in respect of five offences: theft by a person required to account; theft; fraud; disposal of property to defraud creditors; and laundering proceeds of crime. The fugitive appealed against the committal order arguing that the extradition judge erred in not staying the application due to non-disclosure and an alleged abuse of process by the requesting state and that the evidence adduced was not sufficiently reliable. The fugitive also sought a review of the Minister of Justice's order requiring his surrender but acknowledged that his success on that review was tied to the outcome of the appeal from the committal order.

Held, the appeal and application should be dismissed.

The extradition judge did not err in dismissing an application by the applicant for a stay of proceedings. The original record of the case was silent as to where, when or how the evidence of F, an Ontario residence, had been gathered. According to the case law that governed at the time, if her evidence was gathered in Canada, it would not be admissible as part of the record of the case. The applicant discovered that F had in fact been interviewed in Canada by the American authorities. After the applicant's initial inquiries, one of those authorities called F from California, ostensibly to review her earlier statement. The existing case law [page162] treated the evidence given over the telephone as evidence gathered outside Canada which was admissible as part of the record of the case. The requesting state then filed a supplemental record which was silent as to the date of the telephone call and which made no mention of the earlier interview in Canada. The extradition judge excised F's evidence from the record that he considered on committal. Although not every case of non-disclosure that will require the excision of evidence, the remedy was not inappropriate on the facts as found by the judge. The extradition judge properly found that the conduct of the requesting state, though ill-conceived, did not warrant the extreme remedy of a stay of proceedings.

In light of the decision of the Supreme Court of Canada in United States of America v. Ferras, extradition judges may now assess, to some extent, the availability and quality of the evidence put forward by the foreign state in support of its request for extradition. However, an extradition judge is not entitled to refuse to commit if he or she is of the view that the case against the fugitive is weak and the prospect of conviction slim. So long as there is some evidence, that is available for trial and not manifestly unreliable, on every element of the parallel Canadian crime upon which a reasonable jury, properly instructed, could convict, the test for committal will have been made out, regardless of any opinion the extradition judge might have about the strength of the case or the likelihood of conviction. The extradition judge applied the correct test for committal, and there was sufficient evidence to commit the applicant on the offences identified in the authority to proceed. As the validity of the surrender order was tied to the validity of the committal order, there was no basis for setting aside the surrender order.

APPEAL from the order of Gans J., [2005] O.J. No. 4173, 67 W.C.B. (2d) 316 (S.C.J.), for committal and application for judicial review of a surrender order. [page163]

Cases referred to United States of America v. Ferras, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 214 O.A.C. 326, 209 C.C.C. (3d) 353, 2006 SCC 33, 39 C.R. (6th) 207 (sub nom. United States of America v. Latty), consd Other cases referred to R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, 33 C.R.R. (2d) 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1 (sub nom. R. v. O'Connor (No. 2)); R. v. Zlatic, 1993 CanLII 135 (SCC), [1993] 2 S.C.R. 29, [1993] S.C.J. No. 43, 100 D.L.R. (4th) 642, 151 N.R. 81, 79 C.C.C. (3d) 466, 19 C.R. (4th) 230; United States of America v. Huynh, [2006] O.J. No. 3730, 71 W.C.B. (2d) 263 (S.C.J.); United States of America v. Mach, [2006] O.J. No. 3204, 70 W.C.B. (2d) 318 (S.C.J.); United States of America v. McDowell, 2004 CanLII 36125 (ON CA), [2004] O.J. No. 1190, 185 O.A.C. 306, 237 D.L.R. (4th) 677, 183 C.C.C. (3d) 149 (C.A.); United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, [1976] S.C.J. No. 106, 70 D.L.R. (3d) 136; United States of America v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616, [2001] 1 S.C.J. No. 18, 197 D.L.R. (4th) 69, 268 N.R. 115, 81 C.R.R. (2d) 245, 152 C.C.C. (3d) 294, 41 C.R. (5th) 100 (sub nom. United States v. Shulman); United States of America v. Yang (2001), 2001 CanLII 20937 (ON CA), 56 O.R. (3d) 52, [2001] O.J. No. 3577, 203 D.L.R. (4th) 337, 87 C.R.R. (2d) 300, 157 C.C.C. (3d) 225, 45 C.R. (5th) 205 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 7 Criminal Code, R.S.C. 1985, c. C-46, ss. 330, 332, 334, 380, 392, 462.31 Extradition Act, S.C. 1999, c. 18, s. 29(1)(a), 32(1), 33(1), (2), (3)

Brian H. Greenspan and Seth P. Weinstein, for appellant. Kevin Wilson, for respondent.

The judgment of the court was delivered by

[1] MOLDAVER J.A.: -- The appellant, Gregory Thomlison, appeals from the order of the Honourable Mr. Justice Gans, dated September 29, 2005, committing him for surrender to the United States of America in respect of the following five offences specified in an authority to proceed:

(1) Theft by a person required to account (between August l, 1997 and October 31, 1997) contrary to s. 330 and s. 334 of the Criminal Code, R.S.C. 1985, c. C-46;

(2) Theft (between August l, 1997 and October 31, 1997) contrary to s. 332 and s. 334 of the Criminal Code;

(3) Fraud (between August 1, 1997 and October 31, 1997) contrary to s. 380 of the Criminal Code;

(4) Disposal of property to defraud creditors (between August 1, 1997 and October 31, 1997) contrary to s. 392 of the Criminal Code; and

(5) Laundering proceeds of crime (between August 1, 1997 and October 31, 1997) contrary to s. 462.31 of the Criminal Code.

[2] Mr. Thomlison also applies, by way of judicial review, for an order quashing the warrant of surrender issued by the Honourable Vic Toews, Minister of Justice, on March 27, 2006. Little need be said about that application. In oral argument, it became clear that its fate is tied to the committal order. In order words, if the committal order stands, so too will the surrender order; if it falls, so too must the surrender order. No other viable issues exist in relation to the surrender order.

[3] With that in mind, I turn directly to the appeal from the committal order. Of the several grounds of appeal raised, only one involves a matter of broad application. It concerns the test for committal under s. 29(1)(a) of the Extradition Act, S.C. 1999, c. 18, following the Supreme Court's recent decision in United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 209 C.C.C. (3d) 353. In particular, the question arises -- to what extent has Ferras modified the test for committal to ensure that it conforms with the principles of fundamental justice guaranteed by s. 7 of the Charter of Rights and Freedoms? [page164]

[4] On that issue, both sides agree that in light of Ferras, extradition judges may now assess, at least to some extent, the availability and quality of the evidence put forward by the foreign state in support of its request for extradition. Prior to Ferras, extradition judges were effectively precluded from engaging in that limited weighing. According to the majority in United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, [1977] S.C.J. No. 106, in deciding whether the test for extradition had been met -- namely, whether there was some evidence, on every element of the parallel Canadian crime, upon which a reasonable jury, properly instructed, could convict -- extradition judges could not remove from the "some evidence" basket, evidence that was either manifestly unreliable or not realistically available for trial. (See Ferras at para. 40.)

[5] Ferras altered that. Henceforth, in deciding whether the test for committal has been met, Ferras provides that it will no longer be "enough for evidence to merely exist on each element of the crime". Rather, "[t]he evidence must be demonstrably able to be used by a reasonable, properly instructed jury to reach a verdict of guilty" (para. 46).

[6] Therein lies the issue that divides the parties in this case, namely, to what extent can extradition judges now weigh the evidence in deciding whether the test for committal has been met?

[7] The appellant takes the position that in light of Ferras, even if there is some evidence, that is both available for trial and not manifestly unreliable, on every element of the parallel Canadian crime, upon which a reasonable jury, properly instructed, could convict, the extradition judge may nonetheless refuse to commit if he or she is of the view that the case against the fugitive is weak and the prospect of conviction slim.

[8] The respondent, on the other hand, maintains that so long as there is some evidence, that is available for trial and not manifestly unreliable, on every element of the parallel Canadian crime, upon which a reasonable jury, properly instructed, could convict, the test for committal will have been made out, regardless of any opinion the extradition judge might have about the strength of the case or the likelihood of conviction. The ultimate question of guilt or innocence is not for the extradition judge; it is reserved for the trial court in the foreign jurisdiction.

[9] For reasons that follow, I am respectfully of the view that the respondent has accurately stated the law. I am further of the view that the evidence put forward by the foreign state, in support of its request for the appellant's extradition, is both available for trial and not manifestly unreliable. Accordingly, the appellant's challenge to the committal order collapses into an assessment of [page165] whether the available evidence is sufficient to meet the test for committal. In my view, it is. For that reason, along with my opinion that the other grounds of appeal against the committal order have no merit, I would dismiss the appeal. I would likewise dismiss the application for judicial review.

Background Facts

[10] The State of California seeks the appellant's extradition in connection with various allegations of wire fraud, foreign transfer of funds obtained by fraud, theft of government property and illegal transfer of bankruptcy assets from Destinet, a company based in San Diego and owned by the appellant.

[11] The allegations relate to funds collected by Destinet on behalf of clients, including the U.S. National Parks Service and the California State Parks and Recreation Department, that were improperly transferred to Canada and allegedly used for business development and the appellant's personal expenses. On January 29, 2003, following a request from the United States of America, an authority to proceed was issued in relation to the appellant. It listed five Canadian offences, including theft, fraud and laundering proceeds of crime, that corresponded to the conduct in California for which the appellant's extradition is being sought.

The original certified record of the case

[12] On March 26, 2003, the appellant was provided with a certified record of the case. It was dated December 17, 2002 and prepared and certified by George Hardy, Assistant United States Attorney for the Southern District of California. The record consisted of a five-page summary of the evidence that was both available for trial and sufficient under the laws of the United States to justify prosecution.

[13] Among other things, the record contained a summary of the evidence that two of the appellant's former employees, Bruce Barshop and Deborah Friedman, were expected to give. Given the centrality of these two witnesses to the issues raised on appeal, their anticipated evidence, as summarized by Mr. Hardy, is reproduced in full below:

1. Bruce Barshop is expected to testify to the following: He is an attorney by training, but, in 1994 he was president of a company called Mistix, a wholly-owned subsidiary of the Home Shopping Network. Mistix was in the business of providing reservation and ticketing services for clients. One of its clients was the National Park Service. Mistix handled the camping reservations and certain other special use fees for a number of the national parks in the National Park Service system, including Yosemite, the Grand [page166] Canyon, and Yellowstone. In 1994, Mistix was purchased by GREGORY E.G. THOMLISON, who kept Barshop on as Vice President and General Counsel. The company was renamed Destinet. GREGORY E.G. THOMLISON installed his brother, Timothy, as president of Destinet in San Diego, California. GREGORY E.G. THOMLISON, however, remained in Canada and communicated with the San Diego office by telephone, email, and occasional personal visits. Almost immediately after GREGORY E.G. THOMLISON took over the company, delays began in paying funds over to the clients. At the same time, all funds collected on behalf of clients, including the National Park Service, were commingled in a single operations account at the Wells Fargo Bank, San Diego, California. Under the terms of the pertinent contracts, Destinet was required to remit balances owed the National Park Service within 10 days of collection, and balances owed the California State Parks and Recreation Department within 2 days of collection. During 1997, the balances were paid over, and became current, only on one occasion with respect to both the National Park Service and the California State Parks and Recreation Department. Later in 1997, as the delays became more acute, Barshop, at the direction of GREGORY THOMLISON, intentionally lied to the National Park Service about the reasons for the delays. As early as the summer of 1997, Barshop suggested the possibility of bankruptcy to GREGORY THOMLISON, who rejected the idea at that time. By August 4, 1997, however, Destinet stopped remitting any funds to the National Park Service. Nevertheless, GREGORY THOMLISON continued to transfer funds after August 4, 1997, from the commingled account at Wells Fargo Bank in San Diego, to the National Bank of Canada, in Ontario. On October 9, 1997, Barshop and GREGORY THOMLISON spoke with an attorney in San Diego for the purpose of filing a bankruptcy petition for Destinet, which was filed on October 22, 1997. After the bankruptcy was filed, GREGORY THOMLISON never returned to the United States, and was held in contempt by the United States Bankruptcy Court in San Diego. Bruce Barshop has identified the attached photograph (Exhibit 1) of GREGORY THOMLISON, and initialled and dated the back of the photograph.

2. Deborah Friedman is expected to testify to the following: She lives and works in Ontario, Canada, and has been employed by GREGORY E.G. THOMLISON at two different companies. The first was Ticketmaster, Canada, where she provided accounting services for a company in the business of selling tickets for sporting events, clubs, theatres, etc. THOMLISON was one of the co-owners of the company. In 1992 or 1993, THOMLISON left the company, and thereafter, asked Friedman to join him in his new company as Accounting Manager. The new company was, in essence, the Canadian office of Destinet. Shortly after taking over the company formerly called Mistix, THOMLISON directed that the accounting records, including the cheque book on the commingled Wells Fargo Bank account, be moved from San Diego to Canada. Friedman was responsible for monitoring the flow of money in and out of the Wells Fargo Account, and became aware that more money was going out then was coming in. Friedman also became aware that the National Park Service, and other clients, were not receiving their money in a timely fashion, and were complaining about that fact. By August 4, 1997, all payments to the National Park Service by Destinet ceased. By September 20, 1997, all payments to the California State Department of Parks and Recreation ceased. Between August 4, 1997, and October 20, 1997, however, at the direction of THOMLISON, 22 cheques were drawn on the commingled account at Wells Fargo Bank, San Diego, and deposited into a bank account at the National Bank of Canada, in Ontario. Most of these cheques were signed by [page167] Friedman, as one of the authorized signatories on the account. All of these cheques were drawn at the direction of GREGORY THOMLISON. After the money was deposited in the National Bank of Canada, Ontario, cheques were drawn on that account, at the direction of THOMLISON. Cheques totalling about $120,000 were made payable to Montgomery- Gowan, a corporate entity used by THOMLISON as his personal holding company. (Between January 1, 1997, and October 20, 1997, Montgomery-Gowan received about $350,000.) Cheques totalling about $325,000 were made payable to Comcheq Services Inc. -- a payroll service company in Canada. Comcheq Services Inc. prepared payroll cheques for employees in the Canada office of Destinet. Payroll cheques were given on a regular basis to several individuals who did not work at Destinet, including GREGORY THOMLISON's wife, his gardener, the caretaker for his father-in-law, and the nanny for his children. As Accounting Manager, Friedman will testify that the reason why the money was not available to pay the National Park Service and the other clients of Destinet was because GREGORY THOMLISON used the money for his personal expenses, and for business development.

[14] In addition to the anticipated evidence of Mr. Barshop and Ms. Friedman, the record referred to the following evidence that was also available for trial:

(1) A Wells Fargo Bank custodian of records would authenticate 22 cheques drawn on the Destinet account between August 4, 1997 and October 20, 1997. The cheques were itemized by date, amount and cheque number;

(2) A National Bank of Canada custodian of records would authenticate bank records showing that the 22 cheques, referred to above, were deposited to an account in Canada. The same representative would also "authenticate the cheques showing $120,000 payable to Montgomery-Gowan, and about $325,000 payable to Comcheq Services, during the period August 4, 1997 to October 20, 1997";

(3) David Legge, a contract specialist employed by the National Park Service, would testify "about the ongoing struggle with Destinet and Gregory Thomlison to get them to turn over the money belonging to the National Park Service" and the amount of money owing to the National Park Service by Destinet (about $690,000) on October 22, 1997, the date on which Destinet filed for bankruptcy. Further, he would testify about conversations with Mr. Thomlison in which Thomlison gave false explanations "for the delay in receiving the money due to the National Park Service";

(4) Richard Wong, the chief of the internal audit department at the California Department of Parks and Recreation, would testify about the history of the relationship between his [page168] agency and Destinet, the decision by California to terminate the contract with Destinet due to late payments and the fact that Destinet owed his agency about $940,000 on the date it filed for bankruptcy; and

(5) Information identifying the appellant as the person being sought for extradition.

The supplemental certified record of the case

[15] The original record of the case was silent as to where, when or how the evidence of Ms. Friedman, an Ontario resident, had been gathered. According to the case law that governed at the time, if her evidence was gathered in Canada, it would not be admissible as part of the record of the case. (That line of authority has since been overruled by this court's decision in United States of America v. McDowell, 2004 CanLII 36125 (ON CA), [2004] O.J. No. 1190, 183 C.C.C. (3d) 149 (C.A.).)

[16] With that in mind, counsel for the appellant made inquiries and found out that Ms. Friedman had in fact been interviewed by the American authorities (Special Agent Anna Ryan and Assistant United States Attorney George Hardy) at an Ontario Provincial Police Detachment in Mississauga. Further investigation revealed that shortly after the appellant's initial inquiries, Ms. Friedman received a telephone call from Special Agent Ryan in California. The pretext of the call, as explained to Ms. Friedman, was that because Ms. Friedman could be called to testify in California, Agent Ryan wanted to refresh her memory by reviewing the earlier statement that she had provided in Mississauga.

[17] Following Agent Ryan's conversation with Ms. Friedman, the appellant was served, on June 4, 2003, with a supplemental certified record of the case, dated May 27, 2003. Among other things, it contained a verbatim account of the summary of Ms. Friedman's evidence as outlined in the original certified record of the case. The only additional information in the supplementary record was that Agent Ryan had telephoned Ms. Friedman in Canada. The supplemental record was silent as to the date of that telephone call and it made no mention of the earlier interview conducted by the American authorities in Mississauga. Notably, the existing case law treated such evidence, i.e., the information given over the phone to Agent Ryan in California, as evidence gathered outside of Canada. Hence, it would now be admissible as part of the record of the case. [page169]

Ms. Friedman is called as a witness

[18] On January 28, 2005, Ms. Friedman was called as a witness on the extradition hearing before Gans J. Her evidence related essentially to two matters.

[19] First, she testified about her initial interview in February 2002 at Mississauga with Special Agent Ryan and George Hardy, the Assistant United States Attorney who certified both the original record and the supplementary record. She also testified about the subsequent phone call she received from special Agent Ryan in May 2003, allegedly for the purpose of refreshing her memory should she be called to testify in California.

[20] Second, she testified that the summary of her evidence, as set out in both the original and the supplemental records of the case, was incomplete. According to Ms. Friedman, in her initial interview with Special Agent Ryan and Mr. Hardy, she told them that the appellant had moved funds from California to Canada for legitimate business purposes. She further informed them that prior to the date of Destinet's bankruptcy, the appellant had injected his own personal funds into the company and he was in the process of consummating a joint venture agreement with a Montréal-based company to resolve Destinet's "shortfall of funds" problem. She further testified that to the extent that the appellant had made use of the funds transferred from California to Canada, he had done so for legitimate business purposes. According to Ms. Friedman, any monies received by him or his companies or his family, were properly owing to him as reimbursements for expenses or consulting fees to which he was entitled.

The Stay Application

[21] Against that backdrop, the appellant moved before the extradition judge to have the proceedings against him stayed on account of abuse of process. The motion was heard on March 18, 2005 and the extradition judge reserved his decision. On April 29, 2005, he provided extensive written reasons in which he refused to stay the proceedings. In his view, the conduct of the requesting state, though ill-conceived, did not warrant the extreme remedy of a stay of proceedings. It did, however, warrant a lesser sanction. To that end, he ordered that Ms. Friedman's evidence be "excised in all respects" from the proceedings. Hence, her evidence would not be available to the requesting state in its bid to have the appellant committed for extradition. [page170]

The Extradition Hearing

[22] On August 26, 2005, the extradition hearing proceeded and on September 29, 2005, the extradition judge released detailed reasons in which he concluded that the appellant should be committed for extradition. In his opinion, although the case against the appellant was "weak", there was sufficient evidence to satisfy the test for committal.

The Surrender Order

[23] On November 18, 2005, the appellant provided the Minister of Justice with detailed submissions in support of his request that the Minister decline to order his surrender. The thrust of his argument focused on the "lack of candour and intentional deception" of the American authorities in relation to the content and substance of Ms. Friedman's evidence. It was also suggested that the appellant's extradition was being sought for an ulterior purpose, namely, "as a means of collecting a civil debt on behalf of a foreign state".

[24] On March 27, 2006, the Minister of Justice replied and denied the appellant's request. In his view, the allegations of impropriety by the requesting state had been appropriately addressed by the extradition judge and he declined to revisit the matter. The Minister further refused to give effect to the "ulterior motive" submission. In his view, if the appellant's conduct in transferring and using the funds was legitimate, that could amount to "a defence against the American charges". It did not, however, support the "ulterior motive" allegation which, in any event, the appellant had not raised at the extradition hearing.

[25] Having concluded that the appellant's surrender would not be unjust or oppressive and that there were no other reasons or considerations that would justify a refusal to surrender, the Minister ordered that the appellant be surrended to the United States of America.

Issues on Appeal from the Committal Order

[26] In oral argument, the appellant raised the following four grounds of appeal against the committal order:

(1) The extradition judge erred in failing to stay the proceedings;

(2) The extradition judge erred in failing to excise the evidence of Mr. Barshop;

(3) The extradition judge failed to apply the correct test for committal; and [page171]

(4) Assuming the extradition judge applied the correct test for committal, he erred in concluding that there was sufficient evidence to warrant the appellant's committal on the Canadian offences identified in the Authority to Proceed.

Relevant Statutory Provisions

[27] The Extradition Act, S.C. 1999, c. 18:

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; ...

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. . . .

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; . . .

(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; ...

The Canadian Charter of Rights and Freedoms

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. [page172]

Analysis of the Issues

Issue one: Failure to stay the proceedings

[28] The appellant submits that the extradition judge erred in failing to stay the proceedings on account of abuse of process. I disagree. In my view, this ground of appeal is largely fact driven.

[29] In his reasons for refusing to stay the proceedings, the extradition judge stated that he had "grave concerns about the Friedman evidence that the U.S. Attorney summarized not once but twice" and he characterized the supplementary record of the case as "a transparent attempt on the part of the requesting state to avoid the operation of . . . s. 32 of the Extradition Act and avoid subjecting Ms. Friedman to cross-examination by Thomlison's counsel". That said, he made a clear finding that the preparation of the supplementary record "was not done purposefully to mislead the court, but, was done as a result of the ignorance of the U.S. Attorney, in the absence of input from Canadian counsel, in not being conversant with the operation of the Extradition Act".

[30] In the same vein, the extradition judge refused to give effect to the appellant's submission that the preparation of the supplementary record "was undertaken in a purposeful or aeinsidious' fashion, done to intentionally mislead the Court". Although he considered the steps taken by the requesting state to have been "ill-conceived", he thought it significant that "the U.S. Attorney ultimately agreed to submit Ms. Friedman to cross-examination and waived any privilege that might otherwise be associated with the choice of methodology, thereby, smartly and rightly, avoiding any long term or irreparable prejudice with which the Person Sought was then beset".

[31] The extradition judge then turned his attention to "the lack of full, frank and fair disclosure or the lack of diligence and care in the preparation" of the summary of Ms. Friedman's evidence and "its ultimate impact on the integrity and reliability of the certification process". On that issue, he stopped short of finding that the actions of the U.S. Attorney were "purposeful" as opposed to "inadvertent or misguided". That said, he was satisfied that the U.S. Attorney "knew or ought to have known that [Ms. Friedman's] evidence was not portrayed in a full, frank and fair manner" and that this rendered "her evidence misleading", something he was not prepared to countenance. Accordingly, he turned his attention to the appropriate remedy and concluded that although a stay of proceedings was not warranted, Ms. Friedman's evidence should be excised from the record [at para. 14]: [page173]

In my view, and as has been stated in countless cases, a stay of proceedings should only be granted in the clearest of cases, "à where the prejudice to the accused's right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued". [R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 103 C.C.C. (3d) 1 at para 82.] While, as I indicated, the court should be ever vigilant to insure that the reliability of the certification process is maintained at all times, such can be accomplished in this case if the evidence of Ms. Friedman is excised, in all respects. The use of the remedy now fashioned, which has been adopted in the extradition context [United States of America v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616, [2001] S.C.J. No. 18, 152 C.C.C. (3d) 294 at p. 640 S.C.R., p. 315 C.C.C.], will in my view provide the requesting state and its Canadian counsel with a message that full, frank and fair disclosure must form the corner stone of the record of the case and, minimally, that there is no room for lack of diligence and care, even if it were inadvertent or misguided.

[32] I see no basis for interfering with the remedy fashioned by the extradition judge. In so concluding, I should not be taken as holding that the remedy of excision will be warranted in all cases where disclosure is found to be incomplete and misleading. To state the obvious, the appropriate remedy, if any, will depend on the facts and circumstances of the particular case. Here, as indicated, I am satisfied that the extradition judge did not overshoot the mark in fashioning the remedy he did. More to the point, given his findings of fact, which I consider to be unassailable, and his correct application of the law, I see no basis for interfering with his conclusion that this was not an appropriate case for a stay of proceedings. Accordingly, I would not give effect to this ground of appeal.

Issue two: Failure to excise Mr. Barshop's evidence

[33] In the stay of proceedings application, the appellant requested, as an alternate remedy, that the evidence of both Ms. Friedman and Mr. Barshop be excised from the record of the case. As noted by the extradition judge, the appellant's position was that Mr. Barshop's evidence should be excised because "read in light of the Friedman oral evidence, [it] was now revealed to be misleading, if not erroneous".

[34] The extradition judge refused to give effect to that argument, in part, because as the law then stood, he was satisfied that as an extradition judge, he was [at para. 17]:

. . . not permitted to assess the evidence even if [he] were of the view that the evidence was manifestly unreliable, incomplete, false, misleading or even contradictory of other evidence. All that is up to the court at the trial of the person requested and does not fall within the jurisdiction of the extradition Judge.

[35] In support of his position, the extradition judge cited two authorities, one being this court's decision in the [page174] United States of America v. Yang (2001), 2001 CanLII 20937 (ON CA), 56 O.R. (3d) 52, [2001] O.J. No. 3577, 157 C.C.C. (3d) 225 (C.A.), at para. 48. Manifestly, his understanding of the law was correct as it stood at the time. Since then, however, it has been overtaken by Ferras, supra. Hence, if the extradition judge had declined to excise Mr. Barshop's evidence solely on the basis that he lacked the jurisdiction to do so, his decision would have been open to review.

[36] That, however, is not what occurred. The extradition judge continued his analysis and found, as a fact, that even if he had assessed Mr. Barshop's evidence in light of Ms. Friedman's oral testimony, he would not have excised it on account of unreliability [at para. 18]:

That having been said, and lest I did not make the distinction clear between my inclination to exclude the Friedman evidence in contrast to the evidence of Barshop, I deemed the former to be misleading in and of itself and not read in light of the evidence of another. I cannot arrive at the same conclusion in respect of the Barshop evidence, which is only perceptibly misleading in light of what Ms. Friedman testified to. Indeed, and I can only speculate about this conclusion, while it is probably unlikely, it may very well turn out that Barshop may not have been privy to the matters to which Ms. Friedman testified and therefore his evidence, in and of itself was not misleading or erroneous.

[37] In my view, it was open to the extradition judge to find, as he did, that at most, Mr. Barshop's evidence was "only perceptibly misleading in light of what Ms. Friedman testified to" and that "it may very well turn out that Mr. Barshop may not have been privy to the matters to which Ms. Friedman testified and therefore his evidence, in and of itself was not misleading or erroneous".

[38] In my view, that assessment of Mr. Barshop's evidence falls well short of finding it "manifestly unreliable", as required by Ferras, to warrant its exclusion from the "some evidence" basket for sufficiency purposes. Accordingly, I would reject this ground of appeal.

Issue three: The correct test for committal

[39] The appellant submits that the extradition judge did not apply the correct test for committal. He contends that in light of Ferras, even if there is some evidence, that is both available for trial and not manifestly unreliable, on every element of the parallel Canadian crime, upon which a jury, properly instructed could convict, that is not enough. The extradition judge must go on to assess the strength of that evidence. If he or she concludes that the case is weak and the prospect of conviction slim, the request for extradition should be denied. [page175]

[40] Counsel for the respondent, on the other hand, rejected the notion that Ferras had expanded the role of the extradition judge to the extent suggested by the appellant. He maintained that so long as there was some evidence, that was both available for trial and not manifestly unreliable, on every element of the parallel Canadian crime, upon which a reasonable jury, properly instructed, could convict, the test for committal was met. In that regard, it mattered not whether the case against the fugitive was "weak" or whether the prospect of conviction was slim; the ultimate question of guilt or innocence was reserved for the trial court in the foreign jurisdiction, not the extradition judge.

[41] In support of his position, counsel for the respondent cited two post-Ferras decisions from the Superior Court of Justice -- United States of America v. Huynh, [2006] O.J. No. 3730, 71 W.C.B. (2d) 263 (S.C.J.) and the United States of America v. Mach, [2006] O.J. No. 3204, 70 W.C.B. (2d) 318 (S.C.J.). In both cases, Beaulieu J. and Trafford J. recognized their newly-acquired authority to weigh and discard from the "some evidence" basket, evidence that was manifestly unreliable; neither, however, interpreted Ferras as having conferred the more extensive jurisdiction advocated by the appellant. On the contrary, both were satisfied that so long as there was some reliable evidence on every element of the parallel Canadian crime upon which a reasonable jury, properly instructed, could convict, it mattered not whether there was conflicting evidence upon which the trial court in the foreign jurisdiction might ultimately acquit. For purposes of committal, it was not for the extradition judge to "weigh in" on the ultimate question of guilt or innocence.

[42] In concluding, as I have, that the respondent's position is the correct one, I readily concede that there are extracts from Ferras that would at first blush appear to support the appellant's position. They include the following:

-- "For a person sought to receive a fair extradition hearing, the extradition judge must be able to evaluate the evidence, including its reliability, to determine whether the evidence establishes a sufficient case to commit" (emphasis added, para. 41).

-- "Section 29(1)'s direction to an extradition judge to determine whether there is admissible evidence that would aejustify committal' requires a judge to assess whether admissible evidence shows the justice or rightness in committing a person for extradition. It is not enough for evidence to merely exist on each element of the crime. The [page176] evidence must be demonstrably able to be used by a reasonable, properly instructed jury to reach a verdict of guilty. If the evidence is incapable of demonstrating this sufficiency for committal, then it cannot aejustify committal'" (underlined words emphasized in original; other emphasis added, para. 46).

-- "This may explain the conclusion in Shephard that the extradition judge has no discretion to refuse to extradite if there is any evidence, however scant or suspect, supporting each of the elements of the offence alleged. This narrow approach to judicial discretion should not be applied in extradition matters, in my opinion" (emphasis added, para. 47).

-- "The effect of applying this test [the test for committal for trial following a preliminary inquiry, which leaves it to a jury, for crimes prosecuted in Canada, to decide whether evidence is sufficiently reliable or persuasive] in extradition proceedings, by contrast, is to deprive the subject of any review of the reliability or sufficiency of the evidence" (emphasis added, para. 47).

-- "Challenging the justification for committal may involve adducing evidence or making arguments on whether the evidence could be believed by a reasonable jury. Where such evidence is adduced or such arguments are raised, an extradition judge may engage in a limited weighing of evidence to determine whether there is a plausible case" (emphasis added, para. 54).

-- "However, the extradition judge looks at the whole of the evidence presented at the extradition hearing and determines whether it discloses a case on which a jury could convict. If the evidence is so defective and appears so unreliable that the judge concludes it would be dangerous or unsafe to convict, then the case should not go to a jury and is therefore not sufficient to meet the test for committal" (emphasis added, para. 54).

[43] There may be other examples. The ones I have cited leave it open to debate whether for purposes of committal, there is a difference between "sufficiency" of the evidence and "reliability" of the evidence; whether there is a difference between evidence that is "scant" and evidence that is "suspect"; the extent of the judge's role in deciding whether the admissible evidence "shows the justice or rightness" of committal; the extent of the judge's [page177] role in determining whether the evidence is "demonstrably able" to support a conviction; and the extent of the judge's role in determining whether there is a "plausible" case against the fugitive.

[44] Other extracts from the decision support the position taken by the respondent. They include the following:

-- "I conclude that s. 32(1)(a) and (b) and s. 33 of the 1999 Act do not violate the right of a person sought under s. 7 of the Charter, because the requirements for committal of s. 29(1), properly construed, grant the extradition judge discretion to refuse to extradite on insufficient evidence such as where the reliability of the evidence certified is successfully impeached or where there is no evidence, by certification or otherwise, that the evidence is available for trial" (emphasis added, para. 50).

-- "Simply put, the extradition judge has the discretion to give no weight to unavailable or unreliable evidence when determining whether committal is justified under s. 29(1)" (emphasis added, para. 59).

-- "Accordingly, we must ask whether the records disclose sufficient evidence upon which a reasonable jury, properly instructed, could convict. As discussed, to answer this question in the affirmative, the extradition judge must consider whether the evidence tendered possesses sufficient indicia of reliability to justify committal. To put it negatively, the judge should not commit, if, viewing the evidence as a whole, it would be dangerous or unsafe to do so" (emphasis added, para. 65).

-- "However, the issue is not whether the information in the record is actually true. The extradition judge does not determine the guilt or innocence of the person sought. The only issue is whether evidence exist upon which a reasonable jury, properly instructed, could convict" (emphasis added, para. 68).

[45] In the end, when Ferras is read as a whole and against the backdrop of the s. 7 Charter issue -- namely, the propriety of depriving persons of their liberty and security, by forcibly removing them to another country to stand trial on the basis of evidence that is either unavailable and/or manifestly unreliable -- I am satisfied that the newly-acquired authority conferred on extradition judges is limited in the manner suggested by the respondent. Unlike the situation that existed post Shephard, [page178] Ferras now authorizes extradition judges to assess the availability and quality of the evidence that can legitimately be included in the "some evidence" basket for sufficiency purposes. In my view, that enables them to discard evidence that is not realistically available for trial and/or evidence that is manifestly unreliable, i.e., evidence upon which it would clearly be dangerous or unsafe to convict. It does not allow extradition judges to refuse to commit where there is "available and reliable" evidence in the "some evidence" basket upon which a reasonable jury, properly instructed, could convict.

[46] In coming to that conclusion, I take comfort in the fact that nowhere in Ferras does the court set out, in explicit terms, the expanded role of the extradition judge suggested by the appellant. On a matter of such importance, I believe that if the court had intended to effectively create a new and more stringent test for committal, such as, "a reasonable prospect of conviction" or "a reasonable likelihood of conviction", it would have said so explicitly.

[47] To summarize, I am satisfied that if there is some evidence, that is available for trial and not manifestly unreliable, on every essential element of the parallel Canadian crime, upon which a jury properly instructed, could convict, the test for committal will have been met. In that regard, it matters not whether the case against the person sought is "weak" or whether the prospect for conviction "unlikely". The ultimate question of guilt or innocence is for the trial court in the foreign jurisdiction.

[48] In the case at hand, the extradition judge applied the traditional test for committal against the backdrop of evidence that fit within the precepts of Ferras, i.e., evidence that was both available for trial and of sufficient reliability to warrant its reception into the "some evidence" basket. He did not err in failing to apply the more stringent test advocated by the appellant. Accordingly, I would not give effect to this ground of appeal.

Issue four: Was there sufficient evidence to commit on the offences identified in the authority to proceed?

[49] The extradition judge provided extensive reasons for concluding that there was sufficient evidence to warrant the appellant's committal on the offences identified in the authority to proceed. In doing so, he let it be known that in his view, the case against the appellant was "weak". That said, he considered it improper "to embark upon the limited weighing and assessing sought by Mr. Greenspan in resolving the aeambiguity of the surrounding circumstances' or to assess the commercial realities within which Mr. Thomlison and Destinet were then [page179] functioning". In that regard, he agreed with counsel for the requesting state that the activities giving rise to the charges were "consistent with inferences of guilt and innocence" and "any competing inferences should be left to the eventual trier of fact to resolve".

[50] The appellant submits that the extradition judge erred in concluding that there was sufficient evidence to commit. He contends that the evidence against him does not rise above suspicion or conjecture and as such, the request for extradition should have been refused. (See Ferras at para. 34.)

[51] In assessing this issue, the appellant concedes, and I agree, that Ms. Friedman's evidence (whether helpful or harmful to him) is to be treated as though it did not exist. That is how the extradition judge approached it, with the appellant's concurrence, and that is how the record of the case should be approached for appeal purposes.

[52] With that in mind, the crucial remaining evidence comes essentially from Mr. Barshop and, to a lesser extent, Mr. Legge and Mr. Wong, the two Park Authority representatives.

[53] Taken at its highest, it would, in my view, be open to a jury to find that at the appellant's instance, the National Park Service ("National") and the California State Parks and Recreation Department ("California") were dishonestly deprived of funds to which they were entitled under the terms of Destinet's contract with them. Significantly, at a time when Destinet was on the verge of bankruptcy and either delaying or not paying anything to National or California, while intentionally deceiving them as to the reason for this, Destinet, through the appellant, was transferring large amounts of money from its Wells Fargo account in California to its account at the National Bank in Canada. On that evidence, I am satisfied that it would be open to a jury to find that but for Destinet's dishonesty, had National and California known the true state of Destinet's affairs, they would have taken steps to secure the funds that Destinet moved to Canada between August 4, 1997 and October 20, 1997. As it is, they did not do so and those funds were, at very least, put at risk by reason of Destinet's dishonesty. On that scenario, even if the appellant was truly trying to rejuvenate Destinet so that it could pay the monies it owed to National and California, it is open to debate whether that would afford him a defence if he otherwise knowingly exposed National and California to economic risk by intentionally misleading them as to the reason why Destinet could not pay them. (See R. v. Zlatic, 1993 CanLII 135 (SCC), [1993] 2 S.C.R. 29, [1993] S.C.J. No. 43, 79 C.C.C. (3d) 466, at p. 49 S.C.R., p. 481 C.C.C.) [page180]

[54] For those reasons, I am satisfied that there was sufficient evidence to warrant the appellant's committal for trial. Accordingly, I would not give effect to this ground of appeal.

The Surrender Order

[55] As I indicated at the outset of these reasons, the validity of the surrender order is tied to the validity of the committal order. No other viable grounds of appeal exist in relation to it. Accordingly, in view of my refusal to set aside the committal order, there is no basis for setting aside the surrender order. Hence, I would also dismiss the application for judicial review.

Appeal and application dismissed.