United States of America v. Lee, 2009 ONCA 728
CITATION: United States of America v. Lee, 2009 ONCA 728
DATE: 20091016
DOCKET: C49454
COURT OF APPEAL FOR ONTARIO
Moldaver, Goudge and Armstrong JJ.A.
BETWEEN:
The Attorney General on behalf of the United States of America
Appellant
and
Sang Hoon Lee
Respondent
Chris de Sa, for the appellant
Scott Reid, for the respondent
Heard: June 10, 2009
On appeal from the discharge entered by Justice Anne M. Molloy of the Superior Court of Justice on September 9, 2008.
By the Court:
A. INTRODUCTION
[1] The United States of America seeks the extradition of the respondent Sang Hoon Lee for his participation in a human smuggling operation that unlawfully brought Korean and Chinese nationals into the United States via Canada without the legally required documents. On September 9, 2008, Molloy J. found insufficient evidence in the Record of the Case to warrant the respondent’s committal for extradition and thus discharged him. The Attorney General of Canada, on behalf of the United States, appeals that decision. For the reasons that follow, we would allow the appeal.
[2] On February 7, 2008, the Minister of Justice of Canada issued an Authority to Proceed authorizing the Attorney General of Canada to seek an order committing the respondent for extradition. It contained two offences under Canadian law that correspond to the alleged conduct of the respondent for which he is sought to be prosecuted in the United States. These offences are as follows:
Organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by the Immigration and Refugee Protection Act contrary to section 117 of that Act; and
Conspiracy to organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by the Immigration and Refugee Protection Act contrary to s. 117 of that Act and s. 465(1)(c) of the Criminal Code.
[3] Section 117(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) reads as follows:
No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.
B. THE DECISION APPEALED FROM
[4] Pursuant to the Authority to Proceed, the Attorney General of Canada sought an order of committal from the Ontario Superior Court of Justice.
[5] Before the extradition judge, the respondent agreed that he was the person sought for extradition, so identity was not at issue. The Record of the Case prepared by the United States included the certification by an Assistant United States Attorney that the evidence summarized or contained in it is available for trial, and is sufficient under the laws of the United States to justify prosecution. It also contained clear and uncontested evidence that the respondent had received a bus ticket and $2000 from a Mr. Jeong who instructed him to go to Burlington, Vermont, and once there, rent a car and pick up foreign nationals who had crossed the border and transport them to another location in Vermont. The respondent was arrested while transporting them.
[6] The question addressed by the extradition judge was whether, for either charge, the Record of the Case contained any evidence beyond this, from which a trier of fact could reasonably draw an inference of guilt.
[7] The extradition judge first considered the charge under s. 117(1) of the IRPA. She held that the only evidence against the respondent was that he was a driver for the smuggling operation who, on one occasion, transported individuals who had entered the United States illegally from one point in Vermont to another, and that this alone was insufficient to commit the respondent for assisting them to enter the country unlawfully. She decided that the evidence that the respondent was also a guide for the smuggling operation did not permit a reasonable inference that he actually assisted persons to unlawfully enter the country and found that there was no other evidence of his assistance. She thus concluded that there was no evidence upon which the respondent could be found guilty as a principal of the offence under s. 117(1) of the IRPA.
[8] The extradition judge then turned to whether the respondent’s role as driver within the United States was enough for a conviction under s. 117(1) as an aider or abettor. On the basis of R. v. Bell, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 471, a case involving the importing of a narcotic, she found that the offence of unlawfully entering the country was complete once the individual crossed the border. The act of picking up and transporting such a person after that point was therefore not aiding or abetting the commission of the offence, since the offence was already complete.
[9] The extradition judge then considered the evidence before her in the context of the conspiracy charge. She found that there was no evidence that the respondent ever agreed to be part of the human smuggling conspiracy, and that the only evidence was that he agreed to transport people within Vermont. She therefore concluded that there was no evidence upon which a conviction for conspiracy could be based.
[10] Having found insufficient evidence in the Record of the Case to warrant the respondent’s committal for extradition on either charge, the extradition judge discharged him.
C. ANALYSIS
(1) The Section 117(1) Charge
[11] We cannot agree with the extradition judge that the Record of the Case contains no evidence that the respondent actually assisted foreign nationals to cross the border and enter the country unlawfully. The pertinent parts of the Record of the Case are as follows:
The government’s evidence will show an agreement among …Sang Hoon Lee, Jun Park, and other named and unnamed co-conspirators to commit the crimes of smuggling and transporting illegal aliens for private financial gain.
The operation involved transporting aliens and recruiting others – including Sang Hoon Lee and Jun Park – to transport aliens from Toronto Airport to “safe houses” located in Canada where the persons would stay for a limited period of time while awaiting instructions to be smuggled into the United States. The defendants … Sang Hoon Lee and Jun Park …further arranged for drivers to transport the illegal aliens from the “safe houses” to an area along the border of Canada and the United States, and for guides to direct the illegal aliens on how to cross the Canada-United States border without detection or apprehension.
Ko identified Sang Hoon Lee, Sang Hyun Lee, and Kitae Park as people who acted as drivers for the Jangs. He further stated that Sang Hoon Lee also acted as a guide for the Jang smuggling organization.
[12] As summarized in the Record of the Case, the evidence on this issue is that part of the human smuggling operation was to provide guides to direct the illegal aliens on how to cross the Canada-United States border without detection or apprehension. As well, Sang Soo Ko, a co-defendant who worked in the operation, identified the respondent as someone who was not only a driver for the operation, but who also acted as a guide for it. This is sufficient evidence to support the reasonable conclusion that, as part of the smuggling operation, the respondent assisted illegal aliens to cross the border without detection or apprehension.
[13] The conclusion of the extradition judge that there was no evidence upon which the respondent could reasonably be found guilty of an offence under s. 117(1) of the IRPA is therefore in error. There was sufficient evidence to commit the respondent for extradition on this charge.
[14] In light of this conclusion, we need not address the argument that the extradition judge erred in applying the reasoning of R. v. Bell.
(2) The conspiracy charge
[15] We also disagree with the extradition judge’s view that there is no evidence that the respondent agreed to be part of the human smuggling conspiracy.
[16] It is important to remember that pursuant to s. 33(1) of the Extradition Act, S.C. 1999, c. 18, the Record of the Case must contain “a document summarizing the evidence available to the extradition partner for use in the prosecution”. Section 32(1) makes the contents of that document admissible as evidence in an extradition hearing if the Record of the Case is certified. The certification provided by a representative of the requesting state raises a rebuttable presumption that the evidence so summarized meets the requisite threshold of reliability for admission: see United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77. As this court said in United States of America v. McDowell (2004), 2004 CanLII 36125 (ON CA), 183 C.C.C. (3d) 149, these legislative provisions are concerned with substance rather than form. They strike a balance between the liberty interests of the person sought and the international principle of comity.
[17] Here the Record of the Case prepared by the requesting state contains a summary of the government’s evidence that is certified to be available for trial and sufficient under the laws of the United States to justify prosecution. That summary describes evidence of an agreement between the respondent and others to commit the crimes of smuggling and transporting illegal aliens for private financial gain. The operation is described as involving the respondent and others who arranged for the transporting of aliens from Toronto to the United States border and providing guides to direct these illegal aliens on how to cross the border without detection. The substance of this evidence is clear, even though the Record of the Case does not name a particular witness who will give it. There is no doubt about the content of the evidence that is certified to be available for trial.
[18] The evidence so summarized is admissible before the extradition judge pursuant to s. 32(1) of the Extradition Act. It is presumptively reliable pursuant to the certification process, and the respondent raises no reliability challenge to the evidence based on the absence of a named witness who will give it, or for any other reason. We are of the view that it is sufficient to support a committal order on the conspiracy charge.
[19] We therefore conclude that there is sufficient evidence to support the committal for extradition on both charges. We would allow the appeal and order that the respondent be committed for extradition.
RELEASED: October 16, 2009 (“S.T.G.”)
“M.J. Moldaver J.A.”
“S.T. Goudge J.A.”
“Robert P. Armstrong J.A.”