Hungary v. Toth, 2011 ONCA 532

CITATION: Hungary v. Toth, 2011 ONCA 532

DATE: 20110726

DOCKET: C52445 C53192

COURT OF APPEAL FOR ONTARIO

Laskin, Rosenberg and Karakatsanis JJ.A.

BETWEEN

The Attorney General of Canada on Behalf of the Republic of Hungary and the Minister of Justice

Respondent

and

Tibor Toth

Appellant/Applicant

Counsel: P. Andras Schreck and Crystal Tomusiak, for the appellant Nancy Dennison, for the respondent

Heard: June 7, 2011

On appeal from the Order of Committal of Justice G. E. Taylor of the Superior Court of Justice, dated July 21, 2010.

Reasons for Decision

Karakatsanis J.A.:

[1] The appellant is wanted in the Republic of Hungary to be prosecuted for fraud over $5,000. He is alleged to have engaged in an ongoing fraudulent scheme in which he defrauded banks of about $49,000 CAD by submitting false car leasing agreements with information he had access to as managing director of a dealership which sells and leases automobiles in Hungary. He is also alleged to have defrauded banks and individuals of about $35,800 CAD by entering into loan agreements that he did not intend to repay, and using collateral that he did not own. The extradition judge found that the evidence was sufficient to justify the appellant’s committal for fraud over $5,000.

[2] The appellant appeals the extradition judge’s order of committal, arguing that there is no evidence in either of the Records of the Case that the appellant committed the alleged fraud. He has also filed an application for judicial review. He concedes that if the appeal against committal is unsuccessful, there is no basis to interfere with the Minister’s Surrender Order.

[3] For the reasons that follow, I am of the view that the available evidence certified in the Records of the Case is sufficient to justify the appellant’s committal. As a result, I would dismiss the appeal and deny the application for judicial review.

The extradition hearing

[4] The evidence filed in support of the extradition consists of a first Record of the Case dated August 3, 2004, and a second Record of the Case dated October 29, 2004, as well as a Supplement dated January 14, 2009. The Records of the Case allege that the appellant committed fraud over $5,000 and summarize the evidence relating to ten different transactions, listed as examples.

[5] A number of the allegations involve the submission of false leasing contracts to banks and the misappropriation of the resulting leasing fees; they allege that the appellant prepared and submitted the false contracts using the information of customers who had in fact purchased the vehicles from the car dealership that he managed. The Records of the Case identify the injured parties, the false leasing contracts, the vehicles, and the customers involved in the purchase.

[6] The Canadian authorities requested that Hungary identify the evidence that establishes the appellant’s identity as the person who committed the acts summarized in the Records of the Case. The Supplement certified that the identification of the appellant had been performed by virtue of the various contracts and documents attached by the injured parties, as well as upon the testimony of the witnesses identified in the Records of the Case.

[7] At the extradition hearing, the appellant conceded that the fraud involving the first allegation was sufficient to justify committal, based upon the customer’s identification of the appellant from a photograph. He argued that the remaining nine examples did not support a prima facie finding of fraud as there was insufficient evidence identifying the appellant as the person involved in the fraud.

[8] The extradition judge reviewed the evidence as a whole. He noted that

The Record of the Case states ... that the identification of Tibor Toth will be proven by the testimony of the injured party in each of the examples. How the identification will be proven is not specified.

He further noted that certification raises a presumption that the evidence in the Records of the Case is reliable and that the appellant had presented no evidence to suggest that the certification of the identification evidence was incorrect. Accordingly, he accepted that there was evidence to establish the identity of the appellant in Hungary and was satisfied that there was sufficient evidence which would justify a committal for trial in Canada for the offence of fraud over $5,000.

The position of the parties

[9] During the argument on appeal, the appellant accepted that the various allegations relate to one charge of fraud over $5,000 and that it would not be necessary to show there was sufficient evidence for all the examples alleged.

[10] While the appellant does not dispute that there is sufficient evidence to establish fraud, his position is that there is no evidence to identify the appellant as the person who created the false documents or who entered into the fraudulent transactions with the injured parties. The appellant argues that he ought not to be bound by the erroneous concession by counsel at the hearing that there was sufficient evidence to establish identity on the first allegation.

[11] The appellant submits that the extradition judge erred in law by conflating the concepts of reliability and sufficiency; and, in the absence of any indication how the documents or witnesses would establish the identification of the appellant as the perpetrator of the fraud, that the extradition judge erred by accepting the bald assertion of the requesting state that the various documents and witnesses would establish identification.

[12] While the respondent agrees that conclusory or bare assertions are not sufficient to justify committal, the respondent argues that it is not necessary to provide the precise source or manner in which the evidence is to be proved. It is the position of the respondent that there is sufficient evidence, when the Records of the Case are read together, to justify committal.

Guiding legal principles

[13] Section 29 of the Extradition Act, S.C. 1999, c. 18 requires the extradition judge to order the committal of a person into custody to await surrender only if “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”.

[14] In United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77, the Supreme Court of Canada noted that although certification by the requesting state raises the presumption that the evidence in a Record of the Case is reliable and available, the appellant is entitled to challenge the reliability and sufficiency of that evidence, with evidence or by way of submissions. As the Court noted at para. 58, “where a state makes only a bare assertion that evidence exists without providing any description whatsoever of its content or form … the availability of the evidence may be in doubt”.

[15] Similarly, “if the material presented in the record of the case is so bereft of detail, such as the witness’ means of knowledge, that the judge cannot determine its sufficiency, the judge will have to discharge the person sought for prosecution”: United States of America v. Yang (2001), 2001 20937 (ON CA), 56 O.R. (3d) 52 (C.A.), at para. 63.

[16] The extradition judge must look to the whole of the evidence presented at the extradition hearing and determine whether it discloses a case on which a jury could convict. The judge must be satisfied that the evidence adduced contains some evidence, which is available and is not manifestly unreliable, on every essential element of the equivalent Canadian offences. It does not matter if the case is weak or unlikely to result in a conviction, as that is a matter for the trial court in the requesting state: see Ferras at paras. 54 and 46 and United States of America v. Thomlison (2007), 2007 ONCA 42, 84 O.R. (3d) 161 (C.A.), at para. 42.

The charge and available evidence

i. The fraudulent car leasing contracts – examples 1, 2, 3, 7, 9 and 10

[17] The Records of the Case allege that between October 25, 1996 and February 26, 1998, the appellant engaged in an ongoing fraudulent scheme in which he defrauded banks by submitting false car leasing agreements with information he had access to as managing director of Sigma 2000, a car dealership selling and leasing cars in Hungary.

[18] The first three examples in the fraud charge allege that the appellant received and misappropriated leasing fees by preparing and sending false leasing contracts to banks. The customers named in the false documents did not lease the cars; they purchased the cars from Sigma 2000. The appellant is alleged to have prepared the false leasing documents using the information provided by the customers in the sales contracts. The appellant was the managing director of Sigma 2000 and “the transactions of leasing deals connected therewith belonged, among other, to the scope of his activities.”

[19] The Records of the Case describe the available evidence as the contracts and other documents submitted by the banks as well as testimony from the customers that the documents were false and that they did not lease, but rather purchased the cars from Sigma 2000. The customer from the first allegation identified the appellant from a photograph. The customers in both the first and second examples purchased their cars from Sigma 2000. Neither customer signed the leasing contracts.

[20] In addition, the third example alleges that the customer purchased the car from the appellant; he was given the false leasing contract to sign at the time he signed the purchase contract; and he paid cash to the appellant for the purchase of the car. The evidence available for the third allegation includes the evidence of the customer and the documents.

[21] Similarly, the seventh allegation is that the appellant, as the managing director of Sigma 2000, sold a vehicle to one customer and then drew up and provided the bank with a false leasing contract for the same vehicle, based upon information provided by another customer. As a result, the appellant received and misappropriated the transferred purchase price. The Records of the Case describe the available evidence as reports to the police, the contracts and other documents submitted by the banks, and the evidence from the customers that the documents provided to the banks were false. The actual purchaser of the car will establish his purchase of the car from Sigma 2000, and the purported purchaser, Ivady, will confirm he did not lease the car and did not sign the leasing contract. Ivady provided information and concluded a verbal agreement with the appellant prior to withdrawing from the purchase agreement referred to in the ninth example. Ivady was also the purported purchaser in the ninth and tenth allegations.

[22] The final two allegations relate to two separate payments for the purchase of the same car by Ivady. The ninth example alleges that the appellant, as managing director of Sigma 2000, sold a car to a company in order to allow it to conclude a hire-purchase agreement with Ivady. After the bank had transferred the purchase price, Ivady withdrew from the contract. The appellant agreed to repay the money to the bank but stopped paying after the first instalment.

[23] The tenth allegation is that Toth, as managing director of Sigma 2000, also submitted a false leasing agreement to another bank, indicating that Ivady had purchased the car (after he had withdrawn from the agreement). After he received the purchase price sent by that bank, the appellant advised the bank that the customer had withdrawn from the agreement and promised to repay the entire fee within eight days. He did not do so.

[24] The Records of the Case describe the available evidence for examples 7, 9 and 10 as: the contracts and other documents submitted by the banks, the reports to police by the banks, and evidence from Ivady that he concluded only a verbal agreement with Toth and withdrew from the leasing prior to the actual agreement in writing.

[25] Following the Canadian request for the evidence that would prove the appellant’s identity, the Supplement to the Summary Report certifies that the identification of the appellant had been “performed by virtue of” the various contracts and documents attached by the injured parties as well as the testimony of witnesses identified in the Records of the Case.

ii. Personal Loans – examples 4, 5, 6, 8 and 9

[26] The Records of the Case allege that the appellant defrauded banks and individuals by entering into loan agreements that he did not intend to repay, and using collateral he did not own.

[27] The fourth example relates to a loan by the appellant, concluded before a Notary Public, in which he provided his son’s car and property not owned by him as collateral. The car was also offered as collateral on the loan in the fifth example. With respect to the fourth, the appellant made the first payment and then left for an unknown place.

[28] The sixth and eighth examples relate to loans from two individuals. The appellant delayed the repayments and then left for an unknown place.

[29] The Records of the Case indicate as available evidence the police reports by the injured parties; the loan and mortgage agreements; and the results of unsuccessful efforts to find the collateral as well as the appellant. For the fourth example, two witnesses will give evidence that their company owned the property offered as collateral and that the appellant did not have title to the property.

[30] Once again, the Supplement to Summary Report certifies that the identification of the appellant had been “performed by virtue” of the various contracts and documents attached by the injured party as well as by the testimony of the witnesses identified in the Records of the Case. Furthermore, the Supplement states that on the fifth allegation, the principal of the bank would identify the appellant as the person who concluded the loan agreement and offered the car as collateral (although there is no indication of any evidence to show the car did not belong to him but to his son). With respect to the unpaid loans in the sixth and eighth examples, the lenders will provide documents and testify.

Analysis

[31] The appellant submits that although the customers can identify the appellant as the person involved in the sale of their vehicles, there is no indication that they have any knowledge of the appellant’s dealings with the banks. He also submits that the record is silent as to what evidence there is that the appellant was the person who had such dealings with the banks. The appellant argues that it is not clear whether the transactions were alleged to have taken place in person, or whether his name or signature is purported to be on the contract. The appellant submits that the statements that the documents and testimony could establish that the appellant was the person who participated in the fraudulent transactions are bald assertions that evidence of identity would be available, and are not a substitute for evidence.

[32] However, while the Record of the Case must contain sufficient detail to permit the extradition judge to assess the sufficiency of the evidence, it need not describe the specific feature of the documents or the specific testimony that will support the summary of the evidence. In United States of America v. Lee (2009), 2009 ONCA 728, 258 O.A.C. 72 this Court held at para. 17: “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.” In the instant case, the Records of the Case provide summaries of the evidence and particulars of ten specific transactions of the alleged fraud and the summaries are sourced to the testimony of named witnesses and specific documentary evidence.

[33] It would, of course, have been preferable if the Records of the Case articulated specifically how the false leasing contracts implicate the appellant. The Records of the Case do not specify whether the appellant’s name is on the documents, whether the documents are signed by the appellant or whether the appellant was the directing mind behind the company that submitted the documents. Furthermore, it would have been desirable to have a more fulsome description of the nature of the witnesses’ evidence that will identify the appellant as the person who was involved with the false leasing documents and the banks. However, it is clear from the response to the Canadian request, that the Hungarian officials did not appreciate the level of specificity requested in the outline of precisely how the evidence would establish identity. They confirmed, apparently of the view that the answer was self-evident, that the evidence summarised in the Records of the Case would be proven by virtue of the various documents and the various witnesses named. Where legal cultures differ, we must be careful not to expect that approaches or styles of legal documentation will necessarily follow familiar patterns.

[34] The Supplement refers back to the summaries in the Records of the Case and certifies that identification will be proven by virtue of the documents and by the testimony of those witnesses. The assertion must therefore be considered in the context of the Records of the Case.

[35] In the context of the summaries of the specific allegations, the assertion that identity would be proven by virtue of the documents and the testimony of the witnesses is not a bald assertion of identity. Nor is it bereft of detail. It is not based upon the mere demand of the requesting state. There can be no doubt of the alleged conduct of the appellant; the specific documents and witnesses are integral to the transactions and the misconduct alleged. Read as a whole, there is evidence from which the appellant’s identity as the perpetrator could be inferred.

[36] With respect to frauds involving the car leasing documents, the inference that it was the appellant who prepared and submitted the false documents to the banks is supported by the evidence that the appellant was the directing manager of the dealership, would have had access to the information of its customers, and was personally involved in the some of the sales transactions involving the vehicles and customers named in the false leasing contracts. Those customers named in the false leasing contracts can provide evidence that they had not signed, or knowingly signed, the false leasing contracts, but had provided the information used in the false documents when purchasing their vehicles from Sigma 2000. The appellant’s photograph can be identified by one of the customers (example 1) who bought a car from Sigma 2000, managed by the appellant. Another customer (example 3) can testify that he bought the car directly from the appellant, paid the appellant in cash and was asked to sign the false document when signing the sale documents. The evidence of one further customer, Ivady, (examples 7, 9 and 10) can show that he dealt directly with the appellant, concluded an oral agreement to purchase a vehicle, but did not sign the agreements submitted to the banks. Ivady can also testify that he withdrew from the purchase agreement before the false leasing agreement was submitted to the second bank. Finally, the appellant was the directing manager of Sigma 2000 and leasing contracts were within the scope of his activities.

[37] It was therefore open to the extradition judge to find that there was sufficient evidence of the conduct of the appellant to support an inference that the appellant was the person who was involved in providing the banks with the false agreements.

[38] In addition, the appellant borrowed money and provided property that was not owned by him as collateral for the loans. He pledged the same car to two different lenders and left for unknown places.

[39] These circumstances, read as a whole, provide evidence sufficient to support the inference that the appellant was the perpetrator of the fraud.

Conclusion

[40] For these reasons, I am unable to conclude that the extradition judge erred in ordering the appellant’s committal. I would dismiss the appeal and, consequently, the application for judicial review.

RELEASED: JUL 26 2011 (“J.I.L.”)

“Karakatsanis J.A.”

“I agree. J.I. Laskin J.A.”

“I agree. M. Rosenberg J.A.”