COURT OF APPEAL FOR ONTARIO

CITATION: Republic of Korea v. Lee, 2013 ONCA 192

DATE: 20130402

DOCKET: C55006 & C55642

Sharpe, Watt and Hoy JJ.A.

IN THE MATTER OF an appeal of a committal order pursuant to s. 49 of the *Extradition Act*, S.C. 1999, c. 18

AND IN THE MATTER OF an application by the Republic of Korea, Requesting State, for the extradition of Pyong Sik Lee

AND IN THE MATTER OF an application for judicial review of the decision of the Minister of Justice

BETWEEN

The Republic of Korea

and

Her Majesty the Queen

and

Minister of Justice

Respondents

and

Pyong Sik Lee

Applicant/Appellant

Brian H. Greenspan and Robin K. McKechney, for the appellant

Heather J. Graham, for the respondents

Heard: March 19, 2013

On appeal from the committal order of Justice E. Eva Frank of the Superior Court of Justice, dated February 2, 2012, with reasons reported at 2012 ONSC 815, and on application for judicial review of the surrender order of the Minister of Justice, dated June 22, 2012.

ENDORSEMENT

[1] The appellant – applicant (the “appellant”) appeals from a committal for extradition and seeks judicial review of the Minister’s surrender order.

[2] The appellant is sought for extradition to the Republic of Korea for fraud and conspiracy to commit fraud. The fraud and conspiracy allegations relate to a government compensation scheme in relation to property that had been unlawfully obtained. Both the appellant and his father were convicted in Korea in relation to the original fraud whereby the property had been illegally obtained (although it is clear that the appellant’s father was the principal author of the scheme). The current charges relate to applications submitted for compensation from the government by various individuals who claimed to have been defrauded in the original scheme. It is alleged that the appellant participated in the presentation of fraudulent claims and in the management and control of funds fraudulently obtained. The appellant’s father has been convicted in Korea in relation to the same scheme.

Appeal from Committal

[3] The appellant alleges that the extradition judge erred in finding that the certified record of the case provided a sufficient basis for committal. The record of the case consists principally of the prosecutor’s recital of the will-say statements of eight witnesses giving rise to six discrete allegations of fraud. Appended to the record of the case are the findings of an investigation conducted by the Korean Board of Audit and Inspection that led the prosecutor to conduct its investigation.

[4] The appellant contends that certain facts recited in the Board of Audit and Inspection report are inconsistent with facts contained in the will-say statements. The appellant also points to some significant translation problems with the record of the case. The appellant submits that when the record of the case is read as a whole, it fails to provide a sufficient basis to warrant committal.

[5] We disagree.

[6] In our view the will-say statements recited in the record of the case provide some evidence of three fraudulent transactions involving witnesses Kim, O and Park. That evidence is analyzed and considered at paragraphs 21 to 33 of the reasons of the committal judge. We agree with the committal judge that the will-say statements provide a basis upon which a properly instructed trier of fact could conclude that the appellant had met with Kim and O to fill out fraudulent application forms, and that the appellant had been involved in handling the funds obtained by Kim, O and Park as a result of the fraud alleged against the appellant and his father. The allegation that the appellant was involved in the management of these fraudulently obtained funds is also supported by banking records.

[7] While the facts recited in will-say statements are not entirely consistent with all the facts included in the Board of Audit and Inspection report, we do not agree that this lack of correspondence undermines the reliability of the evidence in the record of the case to the point of reducing it to below the level required for committal. The Board of Audit and Inspection report was a preliminary investigation that led to the prosecutor’s subsequent investigation which constitutes the record of the case as certified by the Korean prosecutor. To the extent the preliminary investigation by the Board of Audit and Inspection differs in detail from the evidence of the witnesses recited in the record of the case, that is a matter for trial in Korea.

[8] The authority to proceed recites global counts of fraud and conspiracy to commit fraud. In our view the findings of the committal judge as to the three incidents of fraud are sufficient to support committal on those global counts. We do not agree that the absence of evidence or findings of evidence as to all of the alleged incidents of fraud provides a basis for interfering with the committal.

[9] While there are issues concerning the accuracy of the translation of the record of the case, we are not persuaded that they are so serious or significant as to undermine the integrity of the evidence presented by Korea to support the request for extradition. Nor are we persuaded that the committal judge engaged in speculation with respect to the factual inferences required to warrant committal.

Application for Judicial Review of the Surrender Order

[10] The appellant argues that the Minister’s surrender order should be set aside on the ground that he failed to seek assurances from Korea that the appellant would be tried only on particularized allegations that correspond to the findings of the committal judge.

[11] In our view, this argument cannot be sustained in the face of the decision of the Supreme Court of Canada in Canada (Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170.

Disposition

[12] Accordingly, the appeal from committal and the application for judicial review of the surrender order are dismissed.

“Robert J. Sharpe J.A.”

“David Watt J.A.”

“Alexandra Hoy J.A.”