CITATION: United States of America v. Pannell, 2007 ONCA 786
DATE: 20071116
DOCKET: C44644 & C46282
COURT OF APPEAL FOR ONTARIO
ROSENBERG, GILLESE and MacFARLAND JJ.A.
BETWEEN:
THE UNITED STATES OF AMERICA and THE MINISTER OF JUSTICE
Respondents
and
JOSEPH COLEMAN PANNELL, aka DOUGLAS NORBERG, aka NATHAN JOE CHAPMAN, aka DOUGLAS GARY FREEMAN, aka JOSEPH CHAPMAN PANNELL, aka YUSUF, aka YUSUF PANNELL, aka JOE NATHAN CHAPMAN
Appellant (Applicant)
John Norris for the appellant
Janet Henchey and Jacqueline Palumbo for the respondents
Heard: September 21, 2007
On appeal from the committal order by Justice David Watt of the Superior Court of Justice dated November 25, 2005, and on application for judicial review of the surrender order issued by the Minister of Justice dated October 30, 2006.
ROSENBERG J.A.:
[1] In March 1969, Chicago police arrested nineteen-year-old Joseph Pannell for the attempted murder of a police officer. He was eventually released on bail, but breached that bail and was rearrested. He was again released on bail, but this time fled to Canada where he has lived peacefully with his wife and children for over thirty years. For the past fourteen years, he has worked in Toronto as a reference librarian. Recently, the police re-opened the case and were able to locate Pannell in Toronto where he had lived under the name Douglas Freeman. The United States of America now seeks Pannell’s extradition. Justice Watt ordered that Pannell be committed for extradition and the Minister of Justice ordered that he be surrendered to the United States authorities. Pannell appeals the committal order and applies for judicial review of the Minister’s order.
[2] To return Pannell to the United States after thirty years of quiet, peaceful living in this country may appear to some as harsh and may seem to exact an onerous and unfair penalty on his wife and children. Indeed, the record is filled with letters of support attesting to Pannell’s good character since he has lived in Canada and the perceived injustice of returning him to Chicago after so many years.
[3] But the appellant does not resist extradition on those grounds. Rather, he mounts a series of legal arguments, principally based on the sufficiency of the prosecution case and concerns that, as an African-American male charged with attempting to kill a Chicago police officer, he cannot receive a fair trial in what he says is a racially-charged criminal justice system. He submits that the extradition judge and the Minister made errors that require that the committal order be overturned and the surrender order quashed. For the following reasons, I would dismiss both the appeal and the application for judicial review.
THE FACTS
[4] The record before the extradition judge included a Record of the Case and a Supplemental Record of the Case. In short, the United States says that there exists evidence that on March 7, 1969, the appellant shot Officer Terrence Knox several times when the officer attempted to question him outside a Chicago high school. Two civilian witnesses saw the shooting and will testify that they followed the appellant as he ran from the scene. They pointed the appellant out to another officer, and later identified the appellant while he was in custody in the back of a police car. A third civilian witness also saw the shooting and later identified the appellant as the shooter when he was returned to the scene by police.
[5] A firearm was recovered near the scene. All of the police officers involved in the arrest of the appellant, the seizure of this weapon and the forensic examination of the weapon are now deceased. The weapon itself has been destroyed. The United States claims in the Supplemental Record of the Case, however, that it can prove that this weapon was used to shoot Officer Knox. It also claims to be able to prove that at the time of his arrest, this weapon was “recovered from [the appellant’s] person”. How it will do so, in view of the deaths of the arresting officers, is unexplained.
[6] The appellant is now wanted in the United states for attempted murder, aggravated battery and bail jumping.
THE APPEAL FROM COMMITTAL
The Issues
[7] The appellant raises the following issues on his appeal from the order of the extradition judge:
The extradition judge misapprehended his role in view of the decision in United States of America v. Ferras; United States of American v. Latty (2006), 2006 SCC 33, 209 C.C.C. (3d) 353 (S.C.C.).
The Record of the Case and the Supplemental Record of the Case do not make out a sufficient case for extradition.
The extradition judge erred in refusing to permit the appellant to attempt to impeach the Record of the Case and the Supplemental Record of the Case by calling Officer Knox and the certifying State’s Attorney.
[8] In his factum, the appellant also submitted that the extradition judge erred in failing to consider the appellant’s defence of self-defence. He did not pursue that issue before this court; the appellant’s counsel concedes that while the Supreme Court may have broadened the judge’s role at an extradition hearing, it is not so broad as to permit consideration of possible defences.
Analysis
[9] While the appellant has identified three issues, they all to some extent revolve around the two different versions of events provided by Officer Knox. The first version is set out in an undated, unsigned victim impact statement that was used by the authorities to obtain a provisional arrest warrant in Canada in July 2004. The second version is an account of the expected testimony of Officer Knox as contained in the October 2004 Supplemental Record of the Case. The appellant argues that these two versions of events are “grossly inconsistent” and that as a result, Knox’s evidence is an unreliable basis upon which to make an extradition order. The appellant submits that what remains of the case is so deficient that it cannot support committal. Further, he argues that the failure of the United States to include the victim impact statement in the Record of the Case or the Supplemental Record of the Case was misconduct of such a degree that it could potentially undermine the validity of the certification. He submits that the extradition judge erred in refusing to allow him to investigate this misconduct by calling Knox and the certifying State’s Attorney.
[10] The appellant attributes no blame to the extradition judge for these errors, because the extradition judge did not have the benefit of the Supreme Court’s recent decision in Ferras which he says has altered the role of extradition judges. The appellant submits that Ferras has dramatically enhanced the judge’s role by requiring the judge to consider the reliability as well as the sufficiency of the evidence. The appellant particularly relies on a passage from para. 54 of Ferras, where the court held that “[i]f the evidence is so defective or 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”.
[11] Since so much of the appellant’s appeal is based on the purported conflict between Officer Knox’s two versions of events, I now turn to those versions. The appellant says the important discrepancies are as follows:
- The number of shots
• In the victim impact statement, Officer Knox says that the appellant “pulled out a gun and fired about 13 shots … Three bullets smashed into my right arm.”
• According to the Record of the Case, Officer Knox is expected to testify that the appellant fired “numerous gunshots at him.”
• According to the Supplemental Record of the Case, Officer Knox is expected to testify that the appellant “fired five shots at him” and that he “returned fire with six shots”; the appellant then “fired two more shots at Knox”.
- Officer Knox’s location at the time of the shooting
• In the victim impact statement, Officer Knox says that the appellant fired the shots “through the window and door of the fully marked squad car.”
• The Record of the Case does not indicate where Officer Knox says he was when he was shot, but the civilian witnesses are expected to testify that he was beginning to use his police radio in his squad car when the appellant shot him.
• According to the Supplemental Record of the Case, Officer Knox is expected to testify that he initially “exited the car and told [the appellant] not to move” and that Officer Knox then “moved toward the police radio located inside the car to call for assistance.”
[12] Before dealing with the legal significance of these various statements, it is important to examine the alleged inconsistencies. In my view, on close examination, there is no serious inconsistency as to Officer Knox’s location at the time of the shooting. He was shot through the window and door of the squad car, according to the victim impact statement. He was reaching for the police radio inside the squad car according to the civilian witnesses’ version and Officer Knox’s own version in the Supplemental Record of the Case. I see no inconsistency in these versions. On all three versions, some part of his body must have been inside the car when he was shot. I do not accept the appellant’s submission that on the victim impact statement version he was inside the car, and on the Supplemental Record of the Case version he was outside the car. I certainly do not accept the submission that these are grossly divergent accounts. If Officer Knox’s evidence is so unreliable as to be discarded, it must be because of the inconsistency in the number of shots.
[13] There is no doubt about the inconsistency in the accounts of the number of shots fired by the appellant. Interestingly, the total number of shots involved in the altercation has remained constant. The victim impact statement stated that there were thirteen shots, but all fired by the appellant. The Supplemental Record of the Case stated that there were seven shots fired by the appellant plus six shots fired by Officer Knox.
[14] What, then, is the legal significance of this single inconsistency in Officer Knox’s account of the events? The extradition judge thought it had no legal significance because of the limited role of an extradition judge. As he said at para. 72 of his reasons, “there is no independent reliability requirement for the Record of the Case, and an assessment of reliability lies beyond the reach of an extradition hearing judge.” I agree with the appellant that in light of Ferras, this statement understates the judge’s role. The appellant submits that since the extradition judge misapprehended his role, the case must be sent back for a new hearing.
[15] I do not agree with that submission. Even under Ferras, the reliability inquiry is highly circumscribed. The court described the inquiry in these terms at para. 53:
The issue is threshold reliability. In other words, the question is whether the evidence tendered possesses sufficient indicia of reliability to make it worth consideration by the judge at the hearing. Once it is admitted, its reliability for the purposes of extradition is determined in light of all the evidence presented at the hearing. [Emphasis added.]
[16] In my view, it is open to this court to examine the paper record, in light of the Ferras test, to at least see whether the reliability argument is a viable one. In my view, it is not. Officer Knox’s expected testimony as set out in the Record of the Case and the Supplemental Record of the Case, even when measured against the victim impact statement, possesses sufficient indicia of reliability that it was worthy of consideration. In considering this issue, the court cannot be confined to the single inconsistency about the number of shots. Threshold reliability requires the court to look at all of Officer Knox’s proposed testimony. There can be no question that this testimony contains ample indicia of reliability, as set out below:
• Officer Knox describes a consistent version of his encounter with the appellant in terms of when and where the events happened.
• His location inside or leaning into the vehicle at the time of the shooting is consistent.
• He had ample opportunity to identify the shooter since on all accounts he was close enough to speak to him.
• Officer Knox’s explanation for wanting to talk to the appellant is consistent in all the versions, i.e. he wanted an explanation for why he was not in school.
• On all versions, the appellant shot at Officer Knox many times.
[17] Thus, it is apparent that Officer Knox is giving a first-hand account of a traumatic, life-threatening event that happened to him. There is nothing to suggest that his ability to recall and relate the events was impaired through alcohol or drugs or because of lack of opportunity to observe. Given those indicia of reliability, the single inconsistency as to the actual number of shots fired by the appellant is not capable of so undermining the reliability of Officer Knox’s testimony that it should be discarded. There is therefore no reason to refer the matter back for a rehearing.
[18] As to the sufficiency of the evidence, the appellant submits that the eye-witness identification evidence from Officer Knox and all three of the civilian witnesses is fraught with frailties. He points out that all of the civilian witnesses identified the appellant when he was returned to the scene in the custody of the arresting officers. He points to the apparent gaps in the evidence because of the deaths of the arresting officers, namely, whether the person arrested was the person pointed out to police by the civilian witnesses and whether the gun associated with the shooting was in the appellant’s possession. As is so often the case, the prosecution case has not improved with age, especially with the passage of nearly forty years. However, the evidence is not so defective or unreliable that it would be dangerous or unsafe to convict. While there is no suggestion that any of the witnesses, including Officer Knox, previously knew the appellant, this is also not a case where identification was made under circumstances of a fleeting glance. Officer Knox had ample opportunity to observe his assailant and two of the civilian witnesses followed the shooter from the scene and pointed him out to the arresting officers.
[19] Finally, there is the powerful circumstantial evidence relating to the gun. Obviously, the state will not be able to rely on first-hand accounts of the recovery of the weapon to link it to the appellant. But, it says that it can show the appellant was in possession of the weapon. Perhaps it can do so through admissible hearsay evidence or other circumstantial evidence. It is not for the extradition judge to subject the Supplemental Record of the Case to minute examination through the lens of our rules of evidence.
[20] As this court said in the post-Ferras decision of United States of America v. Thomlison (2007), 2007 ONCA 42, 216 C.C.C. (3d) 97 at para. 47, “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.” See also United States of America v. Anderson (2007), 2007 ONCA 84, 218 C.C.C. (3d) 225 (Ont. C.A.) at paras. 28 – 31. There will be ample room for cross-examination of Officer Knox and the other witnesses, but, in my view, there is evidence upon which a properly instructed jury could convict.
[21] The appellant’s final argument turns on the alleged misconduct of the requesting state in failing to include the victim impact statement in the Record of the Case. The appellant submits that he should have been allowed to challenge the certification by the State’s Attorney by calling evidence, including calling the certifying State’s Attorney and even Officer Knox. The extradition judge refused to embark on this inquiry. The appellant submits that the extradition judge erred because the presumption of reliability accorded to the Record of the Case depends upon the certifying authority exercising the utmost diligence and care. Accordingly, the non-disclosure of the victim impact statement in the Record of the Case provides a basis for inquiring into the reliability of the certification. The appellant relies upon the reasoning of Stromberg-Stein J. in United Kingdom of Great Britain and Northern Ireland v. Tarantino (2003), 2003 BCSC 1134, 177 C.C.C. (3d) 284 (B.C.S.C.) where at para. 39 she said:
The certification process presumes and requires a reasonable degree of diligence and accuracy to ensure people are not extradited upon evidence which does not exist, and that court proceedings are not conducted and judgments reached on the basis of important assertions which have not been diligently examined and which are simply not accurate. This is not an unattainable goal for a certifying authority to achieve and reasonable diligence commensurate with the power is not too much to ask. It will be, one expects and hopes, a rare case where it is shown that a particular prosecuting official or authority has demonstrated, in their certification process, a lack of diligence and care resulting in proven important inaccurate assertions in successive records of the case. The case at bar is such a case, given the history of successive important inaccurate assertions.
[22] Tarantino was an exceptional case. The case for extradition turned on the evidence of three witnesses. As the case progressed, the person sought to be extradited was able to demonstrate that the successive Records of the Case were replete with inaccuracies as to the whereabouts and availability of all three witnesses. In the face of those inaccuracies, Stromberg-Stein J. held that it would be unsafe to rely upon the certifications.
[23] But that is not the situation in this case. First, I reject the allegation of non-disclosure. The victim impact statement was used to obtain the provisional warrant. It was available to the appellant. The requesting state is not required to include every possible piece of evidence in the Record of the Case. Second, as I have shown, the victim impact statement is not so different from the facts as represented in the Record of the Case and the Supplemental Record of the Case as to cast doubt on the reliability of the certification. Before he was entitled to embark on an attempt to undermine the presumed reliability of the Record of the Case, the appellant had to be able to show that there was a reasonable likelihood that the inquiry would assist in determining the matter before the extradition judge: see Anderson, supra at paras. 40−41. The appellant failed to do so and the extradition judge was right not to embark on the proposed inquiry.
[24] Accordingly, I would dismiss the appeal from the committal order.
THE APPLICATION FOR JUDICIAL REVIEW
The Issues
[25] On the application for judicial review, the appellant submits that the Minister of Justice erred in failing to find that his surrender would be unjust and oppressive having regard to the history of racial discrimination in Chicago, especially in the Chicago police force. He also submits that the Minister erred in failing to find that the requesting state did not act in good faith.
Analysis
[26] I will deal with the appellant’s second argument first. This argument turns on the various statements from Officer Knox. In his response to the appellant’s submissions, the Minister stated that it was not his role “to re-assess the evidence or review the findings made by the extradition judge”. The appellant submits that the Minister unduly constrained his powers and misapprehended the appellant’s arguments. The appellant says that he was not asking the Minister to review the factual findings of the extradition judge, but rather to find that officials of the requesting state were negligent in certifying the case and had not acted in good faith because they failed to include the inconsistent victim impact statement in the Record of the Case.
[27] I would not give effect to this submission. First, it is not entirely clear that the Minister misapprehended the appellant’s argument. In one of several submissions made to the Minister, the appellant’s counsel expressly raised the “numerous significant inconsistencies, omissions and contradictions” in the materials filed in support of the extradition request as a basis for refusing to surrender the appellant. In any event, as noted above, the victim impact statement is not so inconsistent with the materials contained in the Record of the Case and the Supplementary Record of the Case as to call into question the extradition partner’s good faith.
[28] The appellant’s other argument turns on the allegation that the Minister failed to properly address the issue of racial discrimination. The appellant’s counsel provided a considerable amount of material to the Minister concerning racial discrimination in Chicago. The appellant, who is black, is alleged to have shot a white police officer. The appellant also says that someone, presumably a person associated with the Chicago police force, has falsely alleged that he was a member of the Black Panther Party. He submits that the material provided to the Minister shows that he cannot get a fair trial in Chicago and that his physical safety will be at risk if he is returned to Chicago. Accordingly, his surrender would infringe his right to fundamental justice under s. 7 of the Charter of Rights and Freedoms. In addition, the Minister should have refused extradition under s. 44(1) of the Extradition Act, S.C. 1999, c. 18. For the purposes of this argument, I did not understand the appellant to suggest that there is any material difference between s. 7 and s. 44(1). Section 44(1) provides as follows:
- (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that
(a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or
(b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons.
[29] While there was some mention of para. (b) during argument, as I understand it, the appellant’s argument turned on para. (a), namely that “the surrender would be unjust or oppressive having regard to all the relevant circumstances”. In any event, there was no credible evidence that the “purpose” of the extradition request was to punish the appellant by reason of his race or colour.
[30] In United States of Mexico v. Hurley (1997), 116 C.C.C. (3d) 414 at para. 50, this court set out a two step approach to considering persecution as a basis for refusing surrender:
First, it is necessary to establish if the persecution to which the appellant may be subjected is such that it ‘sufficiently shocks the conscience’ and would be ‘fundamentally unacceptable to our society’. If it does, the second prong of the analysis requires a consideration of whether or not the appellant has demonstrated, in accordance with the applicable onus of proof, that he will, in fact, be subjected to such persecution if he is extradited to Mexico.
[31] While in Hurley the court considered the persecution issue from the point of view of s. 7 of the Charter, the parties in this application appeared to agree that the same approach should apply to s. 44(1)(a) of the Extradition Act. The appellant submits that contrary to the holding of the Minister, he clearly made out a case at the first step. He says that there was ample evidence that African-Americans are persecuted in the criminal justice system. The appellant also submits that the Minister “asked himself the wrong question” when dealing with the second step.
[32] I am not persuaded that the Minister made a reviewable error in his treatment of the first step of the Hurley test. The materials submitted by the appellant to the Minister were summarized by the Minister as indicating continuing problems of racism in the United States and as showing that the Chicago Police Department “is one that has had a troubling reputation for brutality in the past”. But the Minister also noted that despite problems in the United States justice system, and particularly in Chicago, the authorities had taken concrete steps to combat discrimination. There were materials before the Minister to support that conclusion. In any event, I am satisfied that the Minister did not err in concluding that the appellant had not shown that he would be persecuted if returned to Chicago.
[33] The appellant submits that the Minister misapprehended the appellant’s position on the second step of the Hurley test. The Minister said the following in response to the appellant’s submissions:
Although I must refuse surrender if it is demonstrated that a person’s position would be prejudiced by his status, I am not satisfied that there is evidence to warrant a conclusion that, if surrendered to the United States, [the appellant] will be prejudiced by reason of his race.
In Canada, the decision to prosecute is based on whether the evidence is sufficient to justify the institution or continuation of proceedings and whether it is in the public interest to require a prosecution to be pursued. The race, national or ethnic origin, colour, religion, sex, sexual orientation, political associations, activities, or beliefs of the accused or of any other person involved in the investigation are considered to be irrelevant criteria in making the decision to prosecute. Indeed, had [the appellant] been charged in Canada with the offence for which the United States wishes to try him, [the appellant] would not be able to avoid a trial on the basis of his race.
[34] The appellant submits that he was not seeking any kind of exemption by reason of his race and that it was beside the point that he could not avoid trial in Canada by reason of his race. Rather, he was alleging that the material showed that racism pervades the United States justice system and that African-Americans are persecuted by the authorities. In this regard, he also submits that the Minister misconstrued the importance of the Black Panther factor. The Minister dealt with this issue as follows:
You have raised concerns that [the appellant] has been publicly identified as a member of the former Black Panther Party, although he denies any association with the party or its members. If the U.S. prosecution wishes to assert that [the appellant] was a member of the former Black Panthers, it will have to present evidence before the U.S. trier of fact to support its claim, and [the appellant] will have the opportunity to rebut the evidence on this point.
[35] The appellant submits that the issue was not whether the state could prove that he had been a member of the Black Panther Party at trial; in fact, that has never been part of the state’s case. Rather, the problem was that he had been publicly identified with the Black Panther Party, and this false allegation together with the allegation that he had shot a white police officer put him at physical risk and made it unlikely that he could receive a fair trial. The appellant submitted his own statement to the Minister stating that he feared for his safety and that this was the reason he fled the United States. For example, he says that he believed that someone shot at him while he was out on bail in Chicago.
[36] Despite any possible misapprehension of the appellant’s position by the Minister, I am satisfied that he properly dealt with the appellant’s case. He rightly took into account that on the two occasions that the appellant was held in custody in Chicago, there was no indication that he was harmed or mistreated in any way. This was important information upon which the Minister could properly conclude that the appellant was not at risk, despite his subjective perception.
[37] As to the allegation that he could not receive a fair trial, the Minister properly relied on the fact that the appellant had not suggested that he had been treated unfairly by state authorities before he fled. As the Minister pointed out, he was granted bail on two occasions notwithstanding the seriousness of the charges and during a time which, according to the appellant, was “a very volatile and ugly period of racial violence” in Chicago. Further, as pointed out by the Minister, the United States legal system is similar to ours and has substantial safeguards to ensure a fair trial. Finally, as counsel for the Attorney General points out, the issue is not what conditions were like in Chicago in the 1970’s, but whether the appellant could receive a fair trial now. I agree with counsel that the appellant failed to demonstrate that the Minister erred in finding that the appellant could receive a fair trial today.
[38] I would dismiss the application for judicial review.
DISPOSITION
[39] Accordingly, I would dismiss the appeal from committal for extradition and dismiss the application for judicial review of the order for surrender.
Signed: “M. Rosenberg J.A.”
“I agree E.E. Gillese J.A.”
“I agree J. MacFarland J.A.”
RELEASED: “MR” November 16, 2007