United States of America v. Shanker, 2011 ONCA 452

CITATION: United States of America v. Shanker, 2011 ONCA 452

DATE: 20110614

DOCKET: C52791 and C53318

COURT OF APPEAL FOR ONTARIO

Rosenberg, Lang and Watt JJ.A.

BETWEEN

The Attorney General of Canada on behalf of the United States of America

Respondent

and

Ravi Shanker

Appellant

Alan D. Gold, for the appellant

Richard Kramer, for the respondent

Heard: May 18, 2011

On appeal from committal by Justice Julie A. Thorburn of the Superior Court of Justice dated September 22, 2010 and an application for judicial review pursuant to s. 57 of the Extradition Act, S.C. 1999, c. 18.

ENDORSEMENT

[1] This appeal from committal and review of the decision of the Minister’s decision raise the same issue: the sufficiency of the evidence in the Record of the Case. We are satisfied that there was sufficient evidence and that there are therefore no grounds to set aside the committal or the Minister’s decision.

[2] The appellant does not dispute that there was evidence of a conspiracy involving persons with whom the appellant was in contact. The conspiracy involved the attempted delivery of 48 kilograms of cocaine from Los Angeles to Toronto. The Authority to Proceed sets out the Canadian offence to which this conduct corresponds as conspiracy to traffic in a substance included in Schedule I to the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The United States authorities alleged that the appellant financed the transaction and oversaw the Canadian brokers involved in securing the deal. The evidence against the appellant and the other alleged conspirators came principally from wiretaps that were in place from May to December 2007. The wiretaps show that by September 18, the alleged conspirators were arranging to ship 50 kilograms of cocaine, later reduced to 48 kilograms, by truck from California. On September 21, the truck was stopped in New Mexico and the cocaine was seized. By September 22, conversations of the alleged conspirators indicated a concern that the shipment may have disappeared.

[3] An important person in the alleged conspiracy is Narinder Singh who was alleged to be the broker and coordinator in Canada. The communications on September 22 show Singh arranging a meeting to discuss the problem of the missing cocaine. He then immediately called the appellant and told him that “there is some small problem … from here 50 shirts … they said they have disappeared”. He told the appellant that he had “gathered everybody”. The appellant replied, “give me 10 to 15 minutes”.

[4] Another important alleged conspirator is Varinder Sahota who, it is alleged, acted as a broker and coordinator in Canada. On September 23, Singh told Sahota that “this is your responsibility”. Sahota in turn said that he was worried and mentioned the figure of $800,000 which he said was the value of the “stuff”. About three weeks later, the intercepted communications show attempts by Singh and Sahota to obtain the funds. Importantly, on October 12, Singh told Sahota to make a cheque in the name of R & S Liquidations, the appellant’s company. A few minutes later Sahota told the appellant “when it comes from England, I transfer it here” to which the appellant replied “take it under R & S name, don’t worry”. A few days later, on October 18, Sahota was in communication with the appellant and told him that he was going to sell his house. The appellant told him not to and also said, “we have to take care of this problem … these guys are crazy” and “problem is that if it doesn’t get resolved, it has to be resolved somehow”. On October 24, Sahota told another of the conspirators that the appellant had advised him “not pay it”.

[5] Counsel for the Minister of Justice puts the case for extradition on two bases. First, that the appellant’s prior involvement in the conspiracy to import can be inferred from the communications that took place immediately after the loss of the shipment. Secondly, that even if the appellant only became involved after the shipment was seized his attempts to find funding bring him within this court’s decision in R. v. Neal (2009), 2010 ONCA 281, 263 O.A.C. 201 (C.A.).

[6] The appellant submits that these communications do not show that the appellant was a member of the conspiracy to import the cocaine into Canada. At most the communications show that the appellant was contacted after the object of the conspiracy had been frustrated. His exact involvement is uncertain; there is no evidence the appellant ever attended any meetings with the other conspirators or that he provided funds for the importing or to cover the loss. He also submits that the extradition judge only committed on the basis of R. v. Neal, which is distinguishable, and that it would be unfair to uphold the committal on the basis of the theory that the appellant was involved in the conspiracy before seizure of the shipment.

[7] We need not decide whether the appellant’s committal and extradition can be supported by the ratio in Neal. In our view, there was sufficient evidence from which it could be inferred that the appellant had been involved in the conspiracy to import before the shipment was seized. It would be a remarkable coincidence that immediately after the shipment went missing the conspirators would contact a stranger to the enterprise to attend a meeting to discuss the loss. The appellant apparently had no difficulty understanding the purpose of the meeting [even though the purpose was referred to in code: a small problem with 50 shirts] and was immediately available to attend it. A reasonable inference from the conversations involving the appellant when placed in context is that the appellant was involved in the importing scheme. Another inference is perhaps available: that the conspirators decided to involve the appellant for the first time after the shipment was seized. It is not for this court or the extradition judge to weigh competing reasonable inferences: see United States of America v. Anderson (2007), 2007 ONCA 84, 85 O.R. (3d) 380 (C.A.), at para. 28 and R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 29 and 30.

[8] This court’s jurisdiction on an appeal from committal is set out in s. 53 of the Extradition Act. We can set aside the committal if the order was unreasonable or on the ground of a wrong decision on a question of law. For the reasons set out above, the committal was not unreasonable. Even if the extradition judge erred in relying upon Neal, a matter we need not decide, the appeal may still be dismissed if the court is of the opinion that no substantial wrong or miscarriage of justice has occurred. Crown counsel argued before the extradition judge that the appellant could be committed for extradition on the basis of Neal or alternatively because the appellant’s prior involvement in the conspiracy could be inferred from the post-seizure conversations. It would not be unfair to uphold the committal on this alternative basis. No substantial wrong or miscarriage of justice has occurred given the sufficiency of the evidence.

[9] The application for judicial review of the Minister’s decision is similarly dismissed. As the Minister pointed out, in effect the applicant sought to have the Minister review the decision of the extradition judge concerning the sufficiency of the evidence, a matter reserved to this court.

[10] Accordingly, the appeal from committal is dismissed and the application for judicial review is dismissed.

Signed: “M. Rosenberg J.A.”

“S. E. Lang J.A.”

“David Watt J.A.”