United States of America et al. v. Anderson

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

85 O.R. (3d) 380

Court of Appeal for Ontario,

Doherty, Simmons and Rouleau JJ.A.

February 9, 2007

Extradition -- Evidence -- Co-conspirator of applicant giving statements to authorities implicating applicant in telemarketing fraud -- Co-conspirator co-operating with authorities in hope that he would be prosecuted in Canada and would receive lenient sentence -- Sworn videotaped statement of co-conspirator and his testimony before Illinois grand jury included by requesting state in Record of the Case -- Extradition judge not erring in refusing to permit applicant to call co-conspirator as witness at his extradition hearing as applicant could not demonstrate potential relevance of co- conspirator's evidence to determination of whether applicant should be committed for extradition.

The United States of America sought the applicant's extradition, alleging that he was involved in a large-scale telemarketing fraud. The American authorities had initially sought the extradition of L, a co-conspirator, but L had co- operated with the authorities in the hope that he would be prosecuted in Canada and would receive a lenient sentence. The Record of the Case certified by the United States included a sworn videotaped statement provided to the authorities by L and a transcript of his testimony before a grand jury in Illinois. The applicant had subpoenaed L to testify at his extradition hearing, but the extradition judge refused to allow L to testify as the applicant had not outlined the evidence he anticipated from L and demonstrated the potential relevance of that evidence to the determination of whether the applicant should be committed for extradition. The applicant was committed for extradition on fraud charges, and the Minister of Justice ordered his surrender. The applicant appealed the committal and applied for judicial review of the surrender order. [page381]

Held, the appeal and application should be dismissed.

The extradition judge did not err in holding that the applicant was required to demonstrate the relevance of L's evidence before being allowed to call L as a witness. An extradition judge may engage in a limited weighing of evidence to determine whether there is a plausible case, and may disregard evidence which is so defective or appears so unreliable that it should be given no weight for the purposes of deciding whether the test for committal has been met. In this case, there were features of L's evidence that could call his credibility and the reliability of his evidence into question were this a criminal proceeding in Canada. He was a co-conspirator who was seeking a benefit through co-operation with the authorities. There were some inconsistencies between his sworn statement and his grand jury testimony. However, the mere fact that evidence relied on by the requesting state has potential significant weaknesses, or comes from sources that are less than pristine, cannot justify totally discounting that evidence when determining whether the requesting state has met the test for extradition. There was nothing in L's sworn statement or his grand jury testimony or in his status as a co- conspirator seeking a favourable bargain with the prosecuting authorities that could justify characterizing his statement and evidence as so defective or so unreliable as to warrant the exclusion of the statement and testimony from consideration when determining the issue of committal for extradition. The possibility that had L been required to testify, counsel for the applicant may well have elicited testimony that adversely affected L's credibility or the reliability of his sworn statement and grand jury testimony, or even the possibility that the questioning of L could have led the extradition judge to conclude that L's sworn statement and grand jury testimony were totally unreliable and should not be considered in determining the question of extradition, was not enough, without requiring counsel for the applicant to make some offer of proof demonstrating the ultimate relevance of the proposed evidence before being allowed to call L. If anyone who could potentially give evidence that could significantly undermine the reliability or credibility of the evidence relied on by the requesting state could be compelled to testify at the extradition hearing, the extradition judge could not prevent the proceeding from becoming a wide-ranging discovery-like process for the party whose extradition was being sought.

APPEAL from the committal order of Chapnik J. of the Superior Court of Justice, dated May 9, 2005, and an application for judicial review of a surrender order.

Cases referred to R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343, [2005] S.C.J. No. 67, 259 D.L.R. (4th) 441, 136 C.R.R. (2d) 85, 201 C.C.C. (3d) 449, 2005 SCC 66, 49 B.C.L.R. (4th) 33, 33 C.R. (6th) 241; United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33; United States of America v. Mach, [2006] O.J. No. 3204, 70 W.C.B. (2d) 318 (S.C.J.), consd Other cases referred to Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500, [1987] S.C.J. No. 24, 20 O.A.C. 161, 39 D.L.R. (4th) 18, 76 N.R. 12, 28 C.R.R. 280, 33 C.C.C. (3d) 193, 58 C.R. (3d) 1 (sub nom. Schmidt v. Canada); R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, 43 O.A.C. 1, 116 N.R. 241, 50 C.R.R. 206, 60 C.C.C. (3d) 161, 80 C.R. (3d) 317; R. v. Kutynec (1992), 1992 CanLII 12755 (ON CA), 7 O.R. (3d) 277, [1992] O.J. No. 347, 8 C.R.R. (2d) 300, 70 C.C.C. (3d) 289, 12 C.R. (4th) 152 (C.A.); R. v. Truscott, 2006 CanLII 60337 (ON CA), [2006] O.J. No. 4171, 216 O.A.C. 217, 213 C.C.C. (3d) 183 (C.A.); United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, 147 D.L.R. (4th) 399, 213 N.R. 321, 44 C.R.R. (2d) 189, 115 C.C.C. (3d) 481, 8 C.R. (5th) 79; 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. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, [1976] S.C.J. No. 106, 30 C.C.C. (2d) 424, 70 D.L.R. (3d) 136; United States of America v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616, [2001] 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); [page382] United States of America v. Thomlison (2007), 2007 ONCA 42, 84 O.R. (3d) 161, [2007] O.J. No. 246, 219 O.A.C. 322, 216 C.C.C. (3d) 97 (C.A.); 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 Extradition Act, S.C. 1999, c. 18, ss. 29(1), 32(1)

Andrew M. Czernik, for applicant/appellant. David A. Littlefield, for respondents.

The judgment of the court was delivered by

DOHERTY J.A.:--

I

Overview

[1] Leslie Anderson, Lloyd Prudenza and David Dalglish were committed for extradition to the United States on fraud charges in May 2005. They were ordered surrendered to the United States of America by the Minister of Justice in October 2005. They appealed the committal order and sought judicial review of the surrender order.

[2] The appeals and the applications for judicial review came on for hearing on September 29, 2006. At Anderson's request, his appeal and application for judicial review were adjourned to allow him to retain counsel to advance an argument based on the recently released judgment of the Supreme Court of Canada in United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33. The argument did not have any application to the appeals or applications brought by Dalglish and Prudenza. Their appeals and applications proceeded. For reasons released on October 30, 2006, this court dismissed the appeals and applications for judicial review brought by Prudenza and Dalglish.

[3] Anderson retained counsel and it was agreed that the new argument raised on Anderson's behalf could be made by written submissions. Those submissions were received by the court as of December 19, 2006. They address a single issue:

-- Did the extradition judge err in refusing to allow counsel for Anderson to call Mark Lennox, a co-conspirator, as a witness at the extradition proceeding? [page383]

[4] Insofar as Anderson's appeal and application for judicial review raise and rely on the issues raised by Dalglish and Prudenza, this court's reasons for rejecting the submissions made on behalf of Dalglish and Prudenza apply equally to Anderson. These reasons address only the additional issue raised in the written submissions.

II

Factual Background

[5] The United States alleged that Anderson, Prudenza and Dalglish operated a telemarketing scheme in Toronto between September 2001 and the end of December 2002. They hired telemarketers who contacted people in the United States with poor credit records. They told these people that First Capital, the company represented by the telemarketers, could obtain pre- approved credit cards for them in exchange for an advance fee. The amount of the fee varied, but was usually around $200 U.S. First Capital could not and did not provide pre-approved credit cards. Consumers were bilked out of approximately $7,000,000 over 18 months.

[6] The record of the case certified by the United States included a sworn videotaped statement provided in Canada to Canadian and American authorities by Mark Lennox on April 1, 2004. The American authorities had initially sought the extradition of Lennox. On the advice of counsel, he co-operated with the authorities in the hope that he would be prosecuted in Canada and not the United States and would receive a lenient sentence in exchange for his co-operation. In addition to providing the sworn videotaped statement, Lennox gave grand jury testimony in Illinois on May 18, 2004. A transcript of that testimony was also included in the record of the case certified by the United States.

[7] Lennox, who had considerable prior experience in the telemarketing business and had worked with Dalglish in the past, was hired by Anderson and Dalglish as the office manager of First Capital. Lennox also knew Prudenza, who had previously been involved in the telemarketing business and had also been convicted of mail fraud. Lennox did not know Anderson before Dalglish introduced them and it did not appear that Anderson had any prior involvement in the telemarketing business.

[8] In his statement and testimony, Lennox indicated that the telemarketing operation was "a complete and total scam". He acknowledged that he played an integral role in that fraud. Lennox described the operation of First Capital in considerable detail. He also outlined the respective roles played by Anderson, Prudenza and Dalglish in that operation. These reasons are not [page384] concerned with the roles played by Prudenza and Dalglish. I need not review that evidence. They acknowledged at the extradition hearing that the evidence provided by the United States in the record of the case justified their committal. I will concentrate on Lennox's description of the role played by Anderson.

[9] Lennox met Dalglish and Anderson in early September 2001. They explained that they were about to begin a telemarketing operation and they wanted Lennox to manage the day-to-day affairs of that operation. Lennox was told that Anderson was the "money man" who would finance the operation. At this first meeting, Dalglish explained to Anderson and Lennox that a very large profit could be made from the venture. According to Dalglish, each successful sale would produce a net profit of about $150 U.S.

[10] Lennox decided to work for Dalglish and Anderson. Anderson gave him a $2,000 signing bonus at this first meeting. It was obvious to Lennox that Anderson was bankrolling the start-up costs of the business. Lennox described Anderson and Dalglish as "co-owners of First Capital". Anderson had signing authority on First Capital's bank accounts and signed the payroll cheques. He also signed leases that were made on various premises used by the telemarketers. In August 2002 when First Capital had serious cash flow problems, Anderson provided additional funding. Lennox indicated that without this [additional] funding, the operation would have stopped.

[11] Lennox's grand jury testimony included the following exchange:

Q. Mr. Anderson, at the first meeting, was he aware that the proposed program was a complete fraud?

A. He was aware that we had no power to actually issue credit cards, yes, sir.

Q. Okay. And how did he know that?

A. Because he was told.

[12] When speaking to potential customers, the telemarketers were instructed by Dalglish and Prudenza to use "scripts" that had been developed by Dalglish and Prudenza. In his sworn statement, Lennox said that Anderson saw the "script" before it was used by the telemarketers. The "script" included the representation that customers would receive a pre-approved credit card if they paid the requested fee. Lennox stated that it was discussed at the first meeting that consumers would be promised a credit card when in fact First Capital was not in a position to provide them with one.

[13] In his statement, Lennox said that Anderson was a party to discussions among Prudenza, Lennox and Dalglish in which it [page385] was made clear that it must be made to appear to the customers that First Capital was operating out of the United States and not Canada. This deception would give the American customers added confidence that they could safely deal with First Capital.

[14] Near the end of his sworn statement, Lennox was asked specifically whether Anderson knew that he was funding a "scam". Lennox replied that Anderson was aware that the operation was a scam and associated himself with the scam throughout.

III

The Arguments at the Extradition Proceeding

[15] Counsel for Anderson subpoenaed Lennox to testify at the extradition hearing. At the time of the hearing, Lennox, who is a Canadian citizen, was living in Windsor, Ontario in a psychiatric/detoxification facility. Although there was some suggestion that Lennox might not be medically able to testify, this concern was not pursued at the hearing and I proceed on the basis that he could have testified had the extradition judge so ordered.

[16] Counsel for Anderson submitted that the vive voce evidence of Lennox coupled with the record of the case could lead the judge to conclude that Anderson's committal for extradition was not warranted under s. 29(1) (a) of the Extradition Act, S.C. 1999, c. 18. The extradition judge refused to allow Lennox to testify. After that ruling, counsel for Anderson conceded that the material in the record of the case, particularly the evidence provided by Lennox, warranted Anderson's committal for extradition. That concession does not bar Anderson from renewing his argument on appeal that Lennox should have been required to testify at the hearing.

[17] Counsel for the United States acknowledged that Lennox was compellable. He also accepted that Lennox's evidence was sufficiently reliable to meet the reliability requirement in s. 32(1)(c) of the Extradition Act. Counsel submitted, however, that before Lennox was required to testify it was incumbent on counsel to outline the evidence he anticipated from Lennox and to demonstrate the potential relevance of that evidence to the judge's determination of whether Anderson should be committed for extradition. If counsel could not demonstrate relevance then Lennox's testimony was inadmissible under s. 32(1)(c). Relying on 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 paras. 49-52, counsel for the United States argued that questions going to the credibility of Lennox or the reliability of his evidence were irrelevant since the extradition judge could consider neither credibility [page386] nor reliability when deciding whether the evidence met the test for committal in s. 29(1)(a).

[18] Counsel for Anderson, no doubt attempting to escape the strictures of U.S.A. v. Yang, supra, stressed that he was not challenging the credibility of Lennox or the reliability of his evidence. Counsel indicated that he proposed to call Lennox to "clarify" some of the answers he had given in his statement and in his grand jury testimony. Counsel advised that he hoped that these clarifications would remove the inference, available from the statement and the testimony, that Anderson knew the telemarketing operation was a fraud. If the clarifications had that effect, there would be no basis upon which Anderson could be committed for extradition.

[19] By way of example, counsel for Anderson referred to Lennox's statement and testimony concerning the first meeting attended by himself, Dalglish and Anderson. Counsel suggested that additional questions put to Lennox by him could provide a clearer picture of exactly what Anderson was and was not told about the telemarketing operation at that first meeting. According to counsel, this questioning, depending on Lennox's answers, could lead to the conclusion that no reasonable jury would infer that Anderson was aware of the fraudulent nature of the scheme. If the extradition judge reached that conclusion, then Anderson could not be committed for extradition. Counsel candidly acknowledged that he did not know what Lennox would say or how successful his examination might be. He submitted that his inability to predict what Lennox might say should not affect his right to call Lennox as a witness.

[20] In holding that counsel could not call Lennox as a witness, the extradition judge concluded, despite counsel's attempt to characterize the proposed questioning as "clarification", that it was in reality aimed at challenging the credibility of Lennox and the reliability of his evidence. Citing U.S.A. v. Yang, supra, the extradition judge ruled that Lennox's credibility and the reliability of his evidence were irrelevant to the determination she had to make under s. 29(1) (a) of the Extradition Act. The proposed evidence was, therefore, irrelevant and did not meet the admissibility criteria set out in s. 32(1)(c) of the Extradition Act.

[21] The extradition judge went on to state that if she had a discretion to permit Anderson to call Lennox as a witness, she would not exercise that discretion in his favour "in light of Mr. Lennox's condition and what I've heard today".

[22] I do not necessarily agree that an extradition judge has a discretion to prohibit the subject of the extradition proceeding from calling evidence that is otherwise admissible under s. 32(1)(c) and is available at the hearing. In any event, nothing in this record would support the exercise of such a discretion against [page387] Anderson. The record does not justify a finding that Lennox was not available to testify at the extradition proceeding. Nothing else in the record would justify refusing to permit Anderson to call Lennox if Lennox had admissible evidence to give. The extradition judge's ruling stands or falls on whether Anderson was required to demonstrate the relevance of Lennox's evidence before being allowed to call Lennox as a witness.

IV

The Arguments on Appeal

[23] Counsel for Anderson advances essentially the same argument that was made on Anderson's behalf at the extradition hearing. That argument takes on a somewhat different complexion in the light of U.S.A. v. Ferras, supra. Counsel's argument begins with s. 32(1)(c) of the Extradition Act which governs the admissibility of evidence tendered by the subject of the extradition request. That section reads in part:

32(1) . . . The following shall also be admitted as evidence, even if it would not otherwise be admissible under Canadian law:

(c) evidence adduced by the person sought for extradition that is relevant to the tests set out in subsection 29(1) if the judge considers it reliable.

(Emphasis added)

[24] Counsel for the United States, for obvious reasons, concedes that Lennox's testimony would be sufficiently reliable to cross the reliability threshold in s. 32(1)(c). The admissibility of his evidence, therefore, turns on whether it was "relevant to the tests set out in section 29(1)". The relevant part of that section reads:

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 . . .

[25] Section 29(1)(a) requires some evidence of the existence of each element of the Canadian offence that parallels the offence on which extradition is sought. That evidence must be such as would permit a reasonable jury, properly instructed, to convict on the parallel Canadian offence: see U.S.A. v. Ferras, supra, at para. 38. Prior to U.S.A. v. Ferras, if that evidentiary threshold was crossed, the evidence proffered by the requesting state justified committal. [page388] A qualitative assessment of the evidence relied on by the requesting state was beyond the scope of the s. 29(1)(a) inquiry. The extradition judge could not weigh the evidence either by testing the credibility of the sources of that evidence or by examining the reliability of the evidence put forward by the requesting state: see United States of America v. Sheppard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, [1976] S.C.J. No. 106, 30 C.C.C. (2d) 424; 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 para. 59. Consequently, evidence that could potentially affect the quality of the evidence proffered by the requesting state was irrelevant at the extradition hearing. For example, on the law as it stood prior to U.S.A. v. Ferras, evidence that Lennox had a motive to falsely inculpate Anderson would have been irrelevant to whether his evidence justified committal for extradition.

[26] U.S.A. v. Ferras, supra, turned a new jurisprudential page in the law of extradition. The Supreme Court unanimously concluded, at paras. 39-40, that the principles of fundamental justice enshrined in s. 7 of the Charter, considered in the context of an extradition proceeding, required a judicial assessment of the evidence beyond a simple consideration of whether there was some evidence, regardless of its quality, to support the existence of each element of the parallel criminal offence. Chief Justice McLachlin explained that since extradition proceedings could result in the removal of the person sought for extradition from Canada, an obvious significant interference with that person's liberty and security, the principles of fundamental justice required some qualitative assessment of the evidence relied on to support the extradition request.

[27] The nature of that qualitative assessment of the evidence is described in several places in U.S.A. v. Ferras, supra, at paras. 46, 50, 54. For example, at para. 54, McLachlin C.J.C. observes:

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. The ultimate assessment of reliability is still left for the trial where guilt and innocence are at issue. 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 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.

(Emphasis added)

[28] U.S.A. v. Ferras, supra, contemplates a limited qualitative evaluation of the evidence proffered by the requesting state. As [page389] this court recently said in United States of America v. Thomlison (2007), 2007 ONCA 42, 84 O.R. (3d) 161, [2007] O.J. No. 246 (C.A.) at paras. 45-46, U.S.A. v. Ferras, supra, does not envision weighing competing inferences that may arise from the evidence. It does not contemplate that the extradition judge will decide whether a witness is credible or his or her evidence is reliable. Nor does it call upon the extradition judge to evaluate the relative strength of the case put forward by the requesting state. There is no power to deny extradition in cases that appear to the extradition judge to be weak or unlikely to succeed at trial.

[29] U.S.A. v. Ferras, supra, does permit an extradition judge to remove evidence from judicial consideration if the extradition judge is satisfied that the evidence is "so defective" or "appears so unreliable" that it should be disregarded and given no weight for the purposes of deciding whether the test for committal has been met under s. 29(1)(a) of the Extradition Act. The Chief Justice put it this way, at para. 59:

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). [See Note 1 below]

[30] Evidence may be rendered "so defective" or "so unreliable" as to warrant disregarding it due to problems inherent in the evidence itself, problems that undermine the credibility or reliability of the source of the evidence, or a combination of those two factors. I would stress, however, that it is only where the concerns with respect to the reliability of the evidence, whatever the source or sources, are sufficiently powerful to justify the complete rejection of the evidence, that these concerns become germane to the s. 29(1)(a) inquiry.

[31] In deciding whether defects in the case proffered by the requesting state are sufficiently serious to justify disregarding some part of the evidence relied on by the requesting state when conducting the s. 29(1)(a) assessment, an extradition judge must begin from the premise that the material properly certified by the requesting state pursuant to s. 33 is presumptively reliable for the purposes of the Extradition Act, including the s. 29(1)(a) assessment: see U.S.A. v. Ferras, supra, at paras. 52-56. The party resisting extradition may rebut the presumption of reliability flowing from certification either by reference to the requesting [page390] party's own material or by calling evidence to demonstrate fundamental inadequacies or frailties in the material relied on by the requesting state: see U.S.A. v. Ferras, at paras. 66-67.

[32] In this case, there were features of Lennox's evidence that could call his credibility and the reliability of his evidence into question were this a criminal proceeding in Canada. Lennox was a co-conspirator who was seeking a benefit through co-operation with the authorities. There were some inconsistencies between his sworn statement and his grand jury testimony. At the extradition hearing, counsel did not argue that those features could justify refusing to commit Anderson for extradition. Counsel no doubt appreciated that U.S.A. v. Yang, supra, foreclosed those arguments.

[33] On appeal, post-U.S.A. v. Ferras, supra, counsel still does not argue that the frailties apparent in Lennox's evidence from the material filed by the requesting state would justify a refusal to give Lennox's evidence any weight for the purposes of the s. 29(1)(a) assessment. I think counsel is correct in not advancing that argument. As is evident from the facts in U.S.A. v. Ferras, where much of the evidence came from a co- conspirator, the mere fact that evidence relied on by the requesting state has potential significant weaknesses, or comes from sources that are less than pristine, cannot justify totally discounting that evidence when determining whether the requesting state has met the test for extradition. Having regard to the entirety of Lennox's sworn statement and his grand jury testimony, there is nothing in that material or his status as a co-conspirator seeking a favourable bargain with the prosecuting authorities that could justify characterizing his statement and evidence as "so defective" or "so unreliable" as to warrant the exclusion of the statement and testimony from consideration when determining the issue of committal for extradition.

[34] Although counsel for Anderson does not argue that the problems apparent in Lennox's evidence from the material filed by the requesting state could justify the extradition judge disregarding that evidence, he does argue that those frailties opened the door to evidence called on behalf of Anderson that could reveal difficulties inherent in Lennox's evidence that were sufficiently serious to warrant refusing to commit for extradition based on Lennox's statement and grand jury testimony.

[35] After U.S.A. v. Ferras, supra, the subject of an extradition request may lead evidence to demonstrate that evidence relied on by the requesting state is manifestly unreliable and should be excluded from consideration by the extradition judge: see U.S.A. v. Ferras, at para. 70. Counsel for the United States submits, [page391] however, that before counsel for Anderson could call Lennox, he had to outline the nature of the evidence he anticipated obtaining from Lennox and demonstrate that the anticipated evidence could potentially affect the decision of the extradition judge on the issue of committal. Counsel for the United States contends that Lennox's evidence could be relevant to the question of committal only if it was capable of convincing the extradition judge that Lennox's evidence was so unreliable that it should be disregarded for the purposes of deciding whether Anderson should be committed for extradition.

[36] I think it is beyond question that had Lennox been required to testify, counsel for Anderson may well have elicited testimony that adversely affected Lennox's credibility or the reliability of his sworn statement and grand jury testimony. I can even accept that it is possible that the questioning of Lennox could have led the extradition judge to conclude that Lennox's sworn statement and grand jury testimony were totally unreliable and should not be considered in determining the question of extradition. The essential question on this appeal is whether that possibility is enough, without requiring counsel for Anderson to make some offer of proof demonstrating the ultimate relevance of the proposed evidence, before being allowed to call Lennox on the extradition proceedings. This procedural question was not addressed in U.S.A. v. Ferras, supra.

[37] In any litigation where the admissibility of evidence is challenged, the presiding judge may require counsel to outline the nature of the anticipated evidence and demonstrate its admissibility based on that outline: see, e.g., R. v. Truscott, 2006 CanLII 60337 (ON CA), [2006] O.J. No. 4171, 213 C.C.C. (3d) 183 (C.A.) at para. 19; R. v. Kutynec (1992), 1992 CanLII 7751 (ON CA), 7 O.R. (3d) 277, [1992] O.J. No. 347, 70 C.C.C. (3d) 289 (C.A.) at p. 289 O.R., p. 301 C.C.C. Where the admissibility of the proffered evidence turns on its relevance, the presiding judge may determine relevance based on counsel's outline of the anticipated evidence or the judge may hear the evidence and then rule on its relevance. Policy considerations will determine which of those two courses should be followed.

[38] R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, [2005] S.C.J. No. 67, 201 C.C.C. (3d) 449, provides a helpful illustration of how policy considerations shape the procedure to be followed where the admissibility of evidence is challenged. In R. v. Pires; R. v. Lising, the accused challenged the admissibility of "wiretap" evidence. In support of that challenge, they wanted to cross-examine the person who swore the affidavit in support of the "wiretap" authorization. The accused argued that they should be entitled to cross- examine the affiant as of right. The Crown argued, relying [page392] on R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, 60 C.C.C. (3d) 161, that the accused could not cross-examine the affiant without first demonstrating that the proposed cross-examination would elicit testimony that was relevant to at least one of the preconditions to admissibility of the "wiretap" evidence.

[39] Charron J., writing for a unanimous court, accepted the Crown's submission and affirmed R. v. Garofoli, supra. She recognized the importance of cross-examination in the context of a criminal trial where an accused has the right to make full answer and defence. She then said, at para. 24:

However, the accused's right to an evidentiary hearing must be considered in context. It must also be balanced against countervailing interests, including the need to ensure that the criminal trial process is not plagued by lengthy proceedings that do not assist in the determination of the relevant issues.

[40] Charron J. stressed that in the context of an admissibility contest, evidence could be received only if that evidence could impact on the determination of the admissibility of the impugned evidence. In other words, proffered evidence had to be relevant to the issue under consideration. She said, at para. 31:

There is no point in permitting cross-examination if there is no reasonable likelihood that it will impact on the question of the admissibility of the evidence.

[41] Charron J. considered and rejected the argument that limits on cross-examination could adequately protect against irrelevant questioning. She noted that "countervailing interests", particularly the needs of preventing prolixity in criminal proceedings and protecting informants, could not be served by simply controlling cross-examination. In respect of the first of these concerns, the prolixity of criminal proceedings, she opined, at para. 35:

The concern over the constructive use of judicial resources is as equally, if not more, applicable today as it was 15 years ago when Garofoli was decided. For our justice system to operate, trial judges must have some ability to control the course of proceedings before them. One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the parties when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court.

(Emphasis added)

[42] I think much of what was said in R. v. Pires; R. v. Lising, supra, has application to the present issue. Extradition proceedings are intended to be expeditious and to facilitate prompt compliance with Canada's international obligations: see United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, at para. 122. The extradition hearing is neither a trial, nor even a precursor to a Canadian trial. The guilt or innocence of the person [page393] whose extradition is sought is irrelevant in the extradition proceeding. That proceeding has but one purpose -- to ensure that the person is not extradited from Canada unless the requesting state has justified extradition as required by s. 29(1)(a): see Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500, [1987] S.C.J. No. 24, at p. 515 S.C.R.; U.S.A. v. Ferras, supra, at para. 68.

[43] The expansion of the judicial role in extradition proceedings effected by U.S.A. v. Ferras, supra, creates a tension between the limited right to challenge the credibility and reliability of the evidence tendered by the requesting state and the need to maintain the essential nature and narrow focus of the extradition hearing. If anyone who could potentially give evidence that could significantly undermine the reliability or credibility of the evidence relied on by the requesting state could be compelled to testify at the extradition hearing, I do not see how the extradition judge could prevent the proceeding from becoming a wide-ranging discovery-like process for the party whose extradition was being sought.

[44] In United States of America v. Mach, [2006] O.J. No. 3204, 70 W.C.B. (2d) 318 (S.C.J.), Trafford J. was faced with a post-U.S.A. v. Ferras, supra, request to call evidence at an extradition hearing that counsel claimed would demonstrate the unreliability of portions of the evidence relied on by the requesting state. Trafford J. required counsel to outline the anticipated evidence before proceeding to hear that evidence. He explained at para. 14:

In my view, the extradition judge may require the respondent in a hearing under s. 29 of the Act to summarize the evidence to be called and its legal significance to the application before granting him an evidentiary hearing. The nature of the evidentiary hearing, if granted, is within the discretion of the hearing judge, subject to s. 32(1)c of the Act, as interpreted in U.S.A. v. Ferras, supra, at para. 53. This will ensure the orderliness and fairness of the hearing, and prevent it from assuming the shape of a criminal trial. Where the proffered evidence is admissible and is relevant to an issue to be determined by the extradition judge, such as the reliability of the evidence in the Record of the Case or its sufficiency, permission will be given to call the evidence. However, where it is either inadmissible or irrelevant, such permission will not be given by the Court. The respondent is not entitled to call evidence that is inadmissible. Nor is he entitled to call evidence that is irrelevant to an issue in the hearing. The essential fairness of the hearing is not diminished by such a ruling by the extradition judge. It is also compatible with the narrow jurisdiction of the Court, as described in U.S.A. v. Ferras, supra. . . .

(Emphasis added)

[45] After hearing the outline of the proposed evidence, Trafford J. concluded at para. 19 that it was not relevant to the limited reliability inquiry contemplated in U.S.A. v. Ferras, supra:

The notion of manifest unreliability articulated by the Court in U.S.A. v. Ferras, supra, in para. 40 requires a body of evidence that directly undermines the reliability of the evidence in the record of the case presented by [page394] the requesting state. The calling of the defence, as it would be at trial, is not what is contemplated under U.S.A. v. Ferras, supra. In this case, the proffered evidence is not relevant to the reliability of the evidence contained in the record of the case, or its sufficiency. Rather, it merely amounts to another interpretation of the conversation to which he admits he was a party, denies being a party to the other incriminating conversations and leaves, unchallenged, the evidence of the monitors and interpreters. Accordingly, the request for permission to call it was denied.

[46] The procedure adopted by Trafford J. in U.S.A. v. Mach, supra, was followed in United States of America v. Huynh, [2006] O.J. No. 3730, 71 W.C.B. (2d) 263 (S.C.J.). I think this approach strikes the appropriate balance between the expanded inquiry on committal dictated by U.S.A. v. Ferras, supra, and the need to maintain the nature and focus of the extradition hearing. The extradition judge must be satisfied that the proffered evidence could, when considered in combination with the rest of the record, lead him or her to conclude that evidence offered by the requesting state that is essential to the committal for extradition is so manifestly unreliable or defective that it should be disregarded for the purposes of determining whether the requesting state has met its evidentiary burden under s. 29(1)(a).

V

Application to this Case

[47] Counsel for Anderson candidly acknowledged that he could not offer any outline of the proposed evidence of Lennox that would render the proposed evidence relevant to the question of committal. He frankly acknowledged that he had no idea whether Lennox would give evidence that would turn out to be relevant to the question of committal. Nor, in the light of U.S.A. v. Ferras, supra, has counsel attempted to put anything before this court which would demonstrate the relevance of any evidence Lennox might give to the issue of committal. The extradition judge correctly held that Lennox could not be called as a witness by Anderson in the extradition proceedings.

VI

Conclusion

[48] I would dismiss the appeal from the committal order and the application for judicial review of the Minister's surrender order.

Appeal and application dismissed. [page395]

Notes ----------------

Note 1: There is no issue as to the availability of Lennox's evidence for the purposes of a prosecution in the United States. These reasons address only the reliability component of the qualitative assessment called for by U.S.A. v. Ferras, supra.