The Attorney General of Canada on Behalf of the United States of America v. Aneja

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

Ontario Reports

Court of Appeal for Ontario,

Doherty, Feldman and Lauwers JJ.A.

May 26, 2014

120 O.R. (3d) 620 | 2014 ONCA 423

Case Summary

Charter of Rights and Freedoms — Fundamental justice — Extradition — Difference of at least 15 years between sentence applicant would receive if convicted in United States and sentence he would face in Canada not shocking conscience of reasonably informed observer — Minister's surrender order not violating s. 7 of Charter — Canadian Charter of Rights and Freedoms, s. 7. [page621]

Criminal law — Extradition — Evidence — Record of the case ("ROC") containing summaries of anticipated evidence of appellant's accomplices — Appellant seeking admission of evidence showing that witnesses had criminal records, received reduced sentences in return for assisting with prosecution against the appellant and had made inconsistent statements — Extradition judge refusing to admit evidence on basis that it would not fundamentally undermine reliability of evidence in ROC — Appellant's appeal from committal dismissed — Extradition judge conflating question of whether appellant's evidence was inadmissible and question of whether evidence demonstrating manifest unreliability of evidence in ROC — Error not prejudicing appellant as extradition judge would have determined that proffered evidence did not warrant rejection of any part of ROC had he admitted evidence — Although extradition judge having limited power to weigh evidence, Charter not precluding committal where there is reason to doubt ultimate reliability or probative value of evidence — Extradition Act, S.C. 1999, c. 18, s. 32(1)(c).

Criminal law — Extradition — Judicial review of Minister of Justice's surrender order — Application arguing substantial difference between minimum sentence he faced in the United States and likely sentence that would be imposed were he convicted in Canada amounting to violation of s. 7 of Charter — Court rejecting argument that minister required to obtain assurances from United States that applicant not liable to longer sentences than would be imposed in Canada — Charter breach not made out as disparity would not "shock the conscience".

The United States sought the appellant's extradition to stand trial for arson and other offences. It was alleged that the appellant hired others to set fire to his failing business. The record of the case ("ROC") contained summaries of the evidence of two of the appellant's alleged accomplices. At the extradition hearing, the appellant sought to introduce evidence under s. 32(1)(c) of the Extradition Act that was said to be relevant to the credibility of the two accomplice witnesses. The proffered evidence consisted primarily of material provided by American prosecutors and American court records. The evidence indicated that the witnesses had criminal records, initially denied any involvement in the offences, entered into plea arrangements with the authorities and made inconsistent statements. The extradition judge refused to admit the evidence on the basis that it would not fundamentally undermine the reliability of the evidence in the ROC. The appellant was committed for extradition. The minister ordered him surrendered. The appellant appealed the committal order and applied for judicial review of the surrender order. In his application for judicial review, he relied upon the fact that under the American sentencing regime he faced at least 15 years on the fraud and arson charges and up to an additional ten years for the firearm offence. He submitted that in Canada he would likely only have received a sentence of three to five years and that this disparity violated his s. 7 rights under the Charter and required the minister to seek assurances that he would not receive a higher sentence if surrendered than he would likely have received in Canada.

Held, the appeal and application should be dismissed.

The extradition judge conflated the question of whether the evidence was admissible and the question of whether it was inadequate to the task of demonstrating the manifest unreliability of the evidence in the ROC. However, [page622] that error did not prejudice the appellant as, in the circumstances of this case, the question of admissibility under s. 32(1)(c) and the test for committal under s. 29(1) (a) merged for all practical purposes into a single question -- did the proffered material demonstrate the manifest unreliability of the anticipated evidence of the witnesses as summarized in the ROC? Had the extradition judge admitted the evidence as tending to affect the reliability of the evidence in the ROC, he would still have determined that it did not warrant rejection of any part of the ROC. The Charter permits some limited weighing of the evidence by the extradition judge to ensure that a person is not committed based on so manifestly unreliable evidence that it would insufficient to go to a jury, similar to the test an appellate court would apply when considering an allegation that a verdict was unreasonable. This limited weighing does not permit the extradition judge to usurp the role of the finder of fact at trial in making credibility findings.

The fact that the appellant, if convicted in the United States, would receive a sentence that was at least 15 years longer than a sentence he would receive in Canada would not shock the conscience of a reasonably informed observer. The appellant's surrender in the absence of assurances by U.S. authorities that he would receive a sentence comparable to the sentence that would be imposed in Canada did not violate s. 7 of the Charter.

United States of America v. Ferras; United States of America v. Latty, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 2006 SCC 33, 268 D.L.R. (4th) 1, 351 N.R. 1, J.E. 2006-1461, 209 C.C.C. (3d) 353, 39 C.R. (6th) 207, 143 C.R.R. (2d) 140, EYB 2006-107828, 69 W.C.B. (2d) 711, consd

United States of America v. Anderson (2007), 85 O.R. (3d) 380, [2007] O.J. No. 449, 2007 ONCA 84, 219 O.A.C. 369, 218 C.C.C. (3d) 225, 153 C.R.R. (2d) 20, 74 W.C.B. (2d) 353 [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 159]; United States of America v. Thomlison (2007), 84 O.R. (3d) 161, [2007] O.J. No. 246, 2007 ONCA 42, 219 O.A.C. 322, 68 Admin. L.R. (4th) 247, 216 C.C.C. (3d) 97 [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 179], apld

United States of America v. Wilson, [2011] B.C.J. No. 2419, 2011 BCCA 514, 315 B.C.A.C. 25, 281 C.C.C. (3d) 15, 99 W.C.B. (2d) 329, distd

Other cases referred to

Canada (Attorney General) (United States of America) v. M. (M.), [2012] Q.J. No. 5896, 2012 QCCA 1142, EYB 2012-208135, 2012EXP-2507, J.E. 2012-1322; David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 2005 21093 (ON CA), 76 O.R. (3d) 161, [2005] O.J. No. 2436, 255 D.L.R. (4th) 633, 199 O.A.C. 266, 23 C.C.L.I. (4th) 191, 15 C.P.C. (6th) 1, [2005] I.L.R. I-4422, 19 M.V.R. (5th) 205, 140 A.C.W.S. (3d) 166 [Leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 388-395]; France v. Diab (2014), 120 O.R. (3d) 174, [2014] O.J. No. 2305, 2014 ONCA 374; Green v. Canadian Imperial Bank of Commerce (2014), 118 O.R. (3d) 641, [2014] O.J. No. 419, 2014 ONCA 90, 314 O.A.C. 315, 370 D.L.R. (4th) 402, 50 C.P.C. (7th) 113, 237 A.C.W.S. (3d) 313; United States of America v. Aneja, [2012] O.J. No. 1159, 2012 ONSC 1674 (S.C.J.); United States v. Bennett, [2014] B.C.J. No. 647, 2014 BCCA 145; United States of America v. Edwards, [2011] B.C.J. No. 374, 2011 BCCA 100, 306 B.C.A.C. 160, 271 C.C.C. (3d) 471, 93 W.C.B. (2d) 714; United States of America v. Graham, [2007] B.C.J. No. 1390, 2007 BCCA 345, 243 B.C.A.C. 248, 222 C.C.C. (3d) 1, 74 W.C.B. (2d) 354 [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 467]; United States of America v. Jamieson, 1996 224 (SCC), [1996] 1 S.C.R. 465, [1996] S.C.J. No. 24, 197 N.R. 1, 104 C.C.C. (3d) 575, 30 W.C.B. (2d) 201, revg 1994 5920 (QC CA), [1994] Q.J. No. 524, [1994] R.J.Q. 2144, 197 N.R. 2, J.E. 94-1411, 93 C.C.C. (3d) 265, 34 C.R. (4th) 197, EYB 1994-64450, 24 W.C.B. (2d) 490 (C.A.); [page623] United States of America v. K. (J.H.), 2002 44985 (ON CA), [2002] O.J. No. 2341, 160 O.A.C. 149, 165 C.C.C. (3d) 449, 4 C.R. (6th) 382, 54 W.C.B. (2d) 464 (C.A.) [Leave to appeal to S.C.C. refused [2002] S.C.C.A. No. 501, 101 C.R.R. (2d) 376]; United States of America v. Michaelov, [2010] O.J. No. 5226, 2010 ONCA 819, 279 O.A.C. 373, 264 C.C.C. (3d) 480 [Leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 37]; United States of America v. Orphanou (2011), 107 O.R. (3d) 365, [2011] O.J. No. 4252, 2011 ONCA 612, 285 O.A.C. 143; United States of America v. Pannell, [2007] O.J. No. 4438, 2007 ONCA 786, 232 O.A.C. 56, 227 C.C.C. (3d) 336, 76 W.C.B. (2d) 395; United States of America v. U.S., [2013] B.C.J. No. 2449, 2013 BCCA 483, 344 B.C.A.C. 302, 303 C.C.C. (3d) 541, 110 W.C.B. (2d) 220

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 7

Criminal Code, R.S.C. 1985, c. C-46, ss. 91 [as am.], 139 [as am.], 380 [as am.], 435 [as am.], 686(1)(a)(i)

Extradition Act, S.C. 1999, c. 18, ss. 29(1), (a), 32(1)(c), 33

APPEAL from the committal order of Lofchik J., [2012] O.J. No. 3215, 2012 ONSC 4062 (S.C.J.); APPLICATION for judicial review of the surrender order of the Minister of Justice dated December 12, 2012.

Edward L. Greenspan, Q.C., and Joseph S. Wilkinson, for appellant.

Faiyaz Amir Alibhai, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: —

Overview

[1] In August 2011, the United States of America (the "United States") requested the extradition of the appellant on various charges. In July 2012, the extradition judge ordered the appellant committed for surrender on various charges. In December 2012, the Minister of Justice ("minister") ordered the appellant surrendered to the United States on the charges for which he had been ordered committed for surrender.

[2] The appellant appeals from the committal order and seeks judicial review of the minister's surrender order. In keeping with the practice of this court, the two matters were heard together.

[3] On the appeal from the committal order, counsel submits that the extradition judge erred in refusing to admit evidence tendered by the defence to support the contention that the evidence relied upon by the United States in support of its request for extradition was unreliable and could not justify committal for [page624] surrender. Counsel submits that the evidence proffered by the defence tended to show that the evidence of the two accomplices relied on by the United States was not credible. Counsel submits that the extradition judge should have admitted the evidence, and gone on to determine whether the totality of the evidence on the hearing justified the appellant's committal for surrender. The appellant seeks a new extradition hearing at which his evidence can be received and the question of committal determined by reference to that evidence as well as the evidence relied on by the United States.

[4] On the judicial review application, counsel focuses on the disparity between the length of the jail sentence the appellant will face if convicted in the United States of the charges and the length of the jail sentence a person would face in Canada if convicted of the comparable offences. Counsel argues that the disparity between the two is so great that the surrender of the appellant to face a draconian sentence in the United States would "shock the conscience" of the reasonably informed observer. Counsel submits that the surrender of the appellant absent assurances by the United States authorities to the Canadian government that the appellant would receive a sentence comparable to the sentence that would be imposed in Canada contravenes s. 7 of the Canadian Charter of Rights and Freedoms and is an unconstitutional exercise of the minister's discretion.

[5] For the reasons that follow, I would dismiss both the appeal and the application for judicial review.

The Charges

[6] The extradition request by the United States sought surrender on several offences:

arson and fraud-related charges arising out of a fire in August 2008 at the business operated by the appellant and his subsequent insurance claim for damages caused by the fire;

an obstruct justice charge arising out of an alleged misrepresentation made by the appellant to an FBI agent in the course of the investigation of the fire. It was alleged that the appellant falsely represented that he was an American citizen;

a firearm charge arising out of an event in February 2008. The appellant allegedly gave a pistol to Michael Lee, a person whom he knew to be a felon. [page625]

[7] The authority to proceed issued by the minister identified the corresponding Canadian offences as

arson for a fraudulent purpose contrary to s. 435 of the Criminal Code, R.S.C. 1985, c. C-46;

-- fraud contrary to s. 380 of the Criminal Code;

obstructing justice contrary to s. 139 of the Criminal Code; and

unauthorized possession of a firearm contrary to s. 91 of the Criminal Code.

[8] The extradition judge ultimately ordered the appellant committed on

-- arson for a fraudulent purpose;

-- attempted fraud; and

-- unauthorized possession of a firearm.

[9] The extradition judge committed on the charge of attempted fraud rather than fraud because the insurance company did not actually make any payment on the claim. He declined to commit on the obstruct justice charge because he concluded that the appellant's misrepresentation did not relate to the subject matter of the investigation.

[10] The respondent does not challenge the extradition judge's refusal to commit the appellant on the obstruct justice charge, or his decision to commit the appellant on the charge of attempted fraud rather than fraud.

The Requesting State's Evidence

[11] The record of the case ("ROC") submitted on behalf of the United States consisted of an initial record and three supplemental records containing a summary of the anticipated evidence relied on by the U.S. authorities. The evidence was certified pursuant to s. 33 of the Extradition Act, S.C. 1999, c. 18 (the "Act") as both available and sufficient to justify prosecution in the United States. The ROC included summaries of the anticipated evidence of Michael Lee and Sidney Terry, who, according to the U.S. authorities, were hired by the appellant to set the fire. I will summarize the parts of the ROC that relate to the arson/fraud charges first and then summarize the part of the ROC concerning the gun charge. [page626]

(a) The arson/fraud charges

[12] On Sunday, August 3, 2008, a fire occurred at Sofa Outlet Inc. ("Sofa Outlet"), a furniture store in Roanoke, Virginia. The fire caused more than $800,000 damage to the Sofa Outlet and other stores located in the same plaza. Investigation determined that the fire was intentionally set.

[13] Sofa Outlet was operated by the appellant. Business was bad in August 2008.

[14] Whoever set the fire entered and left the Sofa Outlet premises without setting off the security alarm. The alarm was activated by the fire personnel when they arrived in response to the call. The appellant was one of four persons who had the codes needed to activate and deactivate the alarm.

[15] Sofa Outlet is nominally owned by the appellant's stepmother, but she has never had anything to do with the business. The appellant operated the business, made all business-related decisions and received any proceeds generated from the business. The appellant filed a proof of claim with Sofa Outlet's insurer, seeking compensation for the damages caused by the fire. Any proceeds that may have been paid on the insurance claim would have been available to the appellant.

[16] Michael Lee had pled guilty to certain charges arising out of the arson and was serving a lengthy jail sentence. According to the ROC, he was available and willing to testify against the appellant.

[17] Mr. Lee, a convicted felon, met the appellant in February 2008 and did some work for him at the Sofa Outlet warehouse. In late July 2008, the appellant approached Lee and told him that his store was not doing very well. He offered to pay Lee to burn the store down so that the appellant could make an insurance claim. Lee agreed to do so.

[18] The appellant gave Lee the key to the store and the code for the security system. He told Lee to make it appear as though the store had been vandalized and then set on fire by the vandals.

[19] Lee recruited Sidney Terry and Jason Varona to help him. On Saturday, August 2, they went to the Sofa Outlet store and entered using the key the appellant had given Lee. Lee deactivated the security system with the code given to him by the appellant. The three men loaded some of the Sofa Outlet inventory into a truck and drove it to Richmond, Virginia intending to sell the inventory on the street. Lee also took some business records from the office that the appellant had told him he wanted removed before the fire was set. [page627]

[20] Lee and Terry, but not Varona, returned to the Sofa Outlet store on Sunday afternoon, August 3, 2008. Once again, they entered using the key the appellant had given to Lee and Lee disarmed the security system using the code the appellant had given to him. Lee and Terry then relaxed for a while, drinking a beer, having a cigarette and taking a nap. After they awoke, the two men proceeded to spread accelerant around the store. They started fires in several places within the building. Lee reset the security system and the two men left the store, locking the door behind them.

[21] Lee received some money from the appellant. He also received a credit card with a $12,000 limit. Lee passed a small amount of money on to Terry.

[22] Terry, like Lee, was serving a sentence for offences relating to the arson. He was also available and willing to testify. His anticipated evidence was similar in most respects to Lee's anticipated evidence. According to Terry, he initially believed that he was only there to help Lee remove inventory from the store and take it to Richmond, Virginia for a "midnight auction". On Terry's anticipated evidence, the appellant was party to the fraudulent removal of the inventory on Saturday evening.

[23] Terry first learned of the plan to burn the building while removing furniture from the building on Saturday, August 2. Apparently, Lee had planned to set the store on fire immediately after they removed the furniture. Terry pointed out that as they would be taking the furniture to Richmond in a Sofa Outlet truck, it would be wise to wait until the next day to set the fire. Lee agreed. Terry recounted a conversation in which Lee explained to the appellant why the fire had not been set immediately after the property was removed from the store.

[24] Terry and Lee returned to the store on Sunday, August 3. He and Lee set the fire and left the building after Lee had reset the alarm. Lee locked the door as they left the store.

(b) The gun charge

[25] The anticipated evidence relating to the firearm charge comes exclusively from Lee. According to the ROC, in February 2008, he told the appellant that he had just spent 20 years in prison. A short time later, the appellant gave Lee a pistol telling him to "[d]o something with it". Lee was arrested in possession of the pistol about a month later in March 2008, and charged with the offence of being a felon in possession of a firearm. The firearm was operational. [page628]

The Evidence Proffered by the Appellant

[26] At the extradition hearing, counsel sought to introduce various documents under s. 32(1)(c) of the Act. The material came largely from the U.S. authorities and court records in the United States. The material included statements made by Lee and Terry to the investigators, transcripts of court proceedings, including grand jury testimony, transcripts of sentencing proceedings, other court documents, criminal records and statements made by the appellant to the U.S. investigators. Most of the material was said to be relevant to the credibility of Lee and Terry and, therefore, to the reliability of the parts of the ROC that summarized their anticipated evidence.[^1]

[27] The material relating to Lee was extensive. The relevant parts can be summarized as follows:

Lee and Terry initially agreed to deny any involvement in the fire.

When Lee was first questioned a few days after the fire, he in fact denied any involvement in the fire.

Lee first admitted his involvement in the fire some four months later in December 2008.

Lee's statements to the authorities and his grand jury testimony contain some inconsistencies as to the details of the events surrounding the fire.

-- Lee has an extensive and serious criminal record.

Lee entered into a plea arrangement with the authorities. In exchange for his co-operation in the prosecution of the appellant, Lee received a sentence totalling 14 years as opposed to the sentence of at least 20 years that he would have received but for his co-operation. [page629]

In respect of the gun charge, Lee made no reference to the appellant having given him the gun in February 2008 until December 2008, when Lee decided to co-operate with the authorities on the arson charge.

There were some inconsistencies in the various statements made by Lee about the circumstances in which the appellant came to give him the gun.

[28] The material relating to Terry was also quite extensive and revealed the following:

Terry and Lee had initially agreed they would deny any involvement in the fire.

-- Terry initially denied any involvement in the fire.

Terry subsequently chose to co-operate with the authorities in exchange for a reduced sentence. He eventually received a sentence of 20 months.

-- Terry had a minor criminal record.

Terry's various statements and grand jury testimony contain some inconsistencies.

[29] The admissibility of the documents turned on whether the material was relevant to the test for committal in s. 29(1) of the Act. The extradition judge described the issue in these terms, at para. 26:

Could the evidence sought to be admissible render the evidence proffered by the requesting state so defective or unreliable as to lead to the conclusion that it would be unsafe or dangerous to convict or necessary to withdraw the case from a jury, or does it just raise issues of credibility that will have to be decided by the trier of fact?[^2]

(Emphasis added)

[30] The extradition judge concluded, at para. 44:

The fact that the requesting state relies on evidence of accomplices who made plea bargains goes to the weight of the evidence and does not render the evidence manifestly unreliable. The weight of the evidence is a matter for the trial judge in the requesting state. The cases referred to above deal with the interrelationship of principles expressed in Ferras.[^3] Each case [page630] confirms that in order to be relevant, such evidence to be called must be directed to either demonstrating fundamental inadequacies and frailties in, or to make manifestly unreliable, the evidence of the requesting state. In this case the evidence which the person seeks to lead does not achieve those objects. In my view this evidence, if received by the court, would not fundamentally undermine the reliability of the evidence from the requesting state or change the analysis of the record of the case. The points raised go to credibility.

(Emphasis added)

The Appellant's Arguments

A: Did the extradition judge conflate the test governing the admissibility of evidence with the ultimate test governing committal for surrender?

[31] As explained above, counsel for the appellant relied on s. 32(1)(c) of the Act in seeking the admission of the material on the extradition hearing. That section provides for the admission of evidence adduced by the person sought for extradition if the evidence is "reliable" and "relevant to the tests set out in subsection 29(1)". There was no dispute about the reliability of the material tendered by the appellant. The admissibility of the material depended on its relevance to the test for committal found in s. 29(1)(a) of the Act.

[32] Section 29(1)(a) of the Act directs that the extradition judge should order committal for surrender 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 set out in the authority to be proceed[.]

[33] Ferras holds that committal is justified under s. 29(1)(a) only if there is evidence of the existence of each element of the offence on which surrender is sought that would allow a reasonable, properly instructed jury to convict were it trying the case in Canada: Ferras, at para. 46.

[34] The test for committal in Ferras requires the extradition judge to "engage in a limited weighing of evidence to determine whether there is a plausible case". Chief Justice McLachlin explained, at para. 54:

The ultimate assessment of reliability is still left for the trial where guilt or 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. [page631]

[35] Finally, in addressing the nature of the extradition judge's power under s. 29(1) of the Act, the chief justice said, 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).

[36] In providing for a limited weighing of the evidence, Ferras departed from earlier case law addressing the test for committal under s. 29(1)(a) of the Act. The extent to which Ferras contemplated a weighing of the evidence was discussed at length by this court in United States of America v. Thomlison (2007), 84 O.R. (3d) 161, [2007] O.J. No. 246, 2007 ONCA 42, 216 C.C.C. (3d) 97, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 179; and United States of America v. Anderson (2007), 85 O.R. (3d) 380, [2007] O.J. No. 449, 2007 ONCA 84, 218 C.C.C. (3d) 225, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 159. In Anderson, at para. 30, this court explained the limited weighing of the evidence enunciated in Ferras:

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.

(Emphasis added)

[37] Counsel for the appellant submits that if the party sought for extradition tenders reliable evidence that has the potential to impeach the reliability of evidence in the ROC, the extradition judge is obliged to admit the evidence and consider it in the course of engaging in the limited weighing of the evidence contemplated in Ferras: see United States of America v. Wilson, [2011] B.C.J. No. 2419, 2011 BCCA 514, 281 C.C.C. (3d) 15, at para. 37. Counsel submits that the proffered evidence obviously had the capacity to impeach the credibility of Lee and Terry and, therefore, the reliability of parts of the ROC. He argues that this was enough to warrant the admission of the evidence and its consideration along with the ROC in determining the question of committal under s. 29(1)(a).

[38] I agree that there is a difference between the relevance of evidence to the test for committal under s. 29(1)(a) and, hence, its admissibility under s. 32(1)(c), and the ultimate question of whether the totality of the evidence justifies committal under [page632] s. 29(1)(a).[^4] Wilson, relied by the appellant, demonstrates the distinction. In Wilson, the requesting state relied on summaries of conversations in which misrepresentations were made to the alleged victims of the fraud by employees of the person who was the subject of the extradition request. At the extradition hearing, that person sought to introduce actual recordings of some of those conversations, alleging that the conversations would contradict the summaries in the ROC. The extradition judge refused to admit the recordings into evidence. The British Columbia Court of Appeal, at para. 37, held that the conversations should have been admitted and considered in determining the question of committal:

Where evidence is tendered that would tend to impeach the reliability of the ROC, the judge must consider that evidence and engage in a limited weighing of it to determine the sufficiency of the evidence for committal for trial. That function is at the heart of a fair and meaningful judicial process.

(Emphasis added)

[39] The recordings tendered in Wilson went directly to the existence of the misrepresentations, the actus reus of the alleged fraud. Depending on the content of those recordings, they could have rendered the parts of the ROC purporting to summarize the misrepresentations so unreliable as to warrant their outright rejection. The approach of the British Columbia Court of Appeal in Wilson is consistent with that taken in Anderson, at paras. 44-45; see, also, United States of America v. Pannell, [2007] O.J. No. 4438, 2007 ONCA 786, 227 C.C.C. (3d) 336, at para. 23.

[40] This case is, however, quite different from Wilson. Here, the question of the admissibility of the material tendered by the appellant under s. 32(1)(c) and the test for committal under s. 29(1)(a) merged for all practical purposes into a single question. I will explain why.

[41] The ROC contained direct evidence in the form of the anticipated testimony of Lee and Terry, as well as circumstantial evidence implicating the appellant in the arson/ fraud charges. The gun charge depended entirely on the direct evidence of Lee implicating the appellant in his possession of the gun. Taken at face value, the evidence summarized in the ROC fully justified [page633] the appellant's surrender on the arson/fraud charges and the gun charge. The appellant could avoid surrender only by producing evidence that demonstrated the unreliability of some part of the ROC that was essential to committal. He proposed to do so by adducing material that challenged the credibility of Lee and Terry.

[42] The evidence tendered by the appellant had a single purpose. The evidence was offered to show that, for the reasons identified in the material, Lee and Terry were not credible and that the parts of the ROC that relied on their anticipated evidence were, therefore, unreliable and could not justify a committal. The success of the appellant's argument depended entirely on whether the credibility-related factors identified in his material rendered the anticipated evidence of Lee and Terry so clearly unreliable as to warrant its outright rejection by the extradition judge. This argument stood or fell on the material proffered by the appellant. That material either did or did not establish the requisite level of unreliability. This was not a case in which the extradition judge could not fully appreciate the potential impact of the evidence on the ROC when it was proffered by the appellant.

[43] In my view, because of the nature of the evidence offered by the appellant and the argument made as to the potential relevance of that evidence to the question of committal, the admissibility question under s. 32(1)(c) and the ultimate question of whether committal was justified were essentially the same question -- did the proffered material demonstrate the manifest unreliability of the anticipated evidence of Lee and Terry as summarized in the ROC? If the evidence did not have that effect, committal followed regardless of whether the evidence was said to be inadmissible, or admissible but inadequate to the task of demonstrating the manifest unreliability of evidence in the ROC.

[44] While strictly speaking, I think the extradition judge was wrong in characterizing the issue as one of admissibility, that characterization did not prejudice the appellant in any way. Had the extradition judge applied Wilson and admitted the evidence as tending to affect the reliability of the evidence in the ROC, he would still, on an application of Thomlison and Anderson, have determined that the proffered evidence did not warrant the rejection of any part of the ROC. The result would have been exactly the result arrived at by the extradition judge -- the committal for surrender of the appellant.

[45] The approach taken by the extradition judge finds support in the analysis in [page634] United States of America v. U.S., [2013] B.C.J. No. 2449, 2013 BCCA 483, 303 C.C.C. (3d) 541. In that case, the subject of the extradition request sought to tender evidence on the extradition hearing demonstrating that for various reasons, the complainant, whose anticipated evidence was summarized and relied on in the ROC, was not a credible witness. The Court of Appeal, at paras. 38-39, upheld the extradition judge's refusal to admit that evidence:

The evidence the appellant sought to introduce at the extradition hearing did not contradict or wholly undermine the proposed testimony of S.S. [the complainant]. The proffered evidence simply raised circumstances that could cast doubt on the credibility of S.S. The assessment of S.S.'s credibility is for the trial in Louisiana. It is not the function of the extradition judge to assess her credibility and determine whether the appellant is guilty. Rather, the extradition judge is to determine whether there is sufficient evidence upon which a jury could return a guilty verdict.

If the evidence sought to be introduced demonstrated that the summarized evidence of S.S. was manifestly unreliable, then it would have been admissible to establish there was no plausible case against the appellant. The extradition judge considered the proffered evidence and concluded that none of it demonstrated S.S.'s evidence to be manifestly unreliable. In my view, the judge did not err in that regard[.]

(Emphasis added)

[46] In U.S., as in this case, the nature of the evidence tendered was such that its relevance to the test for committal and the ultimate question of whether committal was justified merged into a single question.

B: Are Thomlison and Anderson wrongly decided?

[47] In deciding whether to order the committal under s. 29(1)(a) of the Act, the extradition judge applied, as he was obligated to do, this court's judgments in Thomlison and Anderson. In those cases, the court considered, at length, the extent to which the extradition judge could weigh the evidence in considering the question of committal. In Anderson, at paras. 30-31, the court said:

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 those concerns become germane to the s. 29(1)(a) inquiry.

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 [page635] 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 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.

(Emphasis added)

[48] As interpreted in Anderson and Thomlison, s. 29(1)(a) provides for a limited review of the evidence. Where the ROC on its face justifies committal for surrender, the subject of the extradition can successfully challenge that evidence only by showing that some part or parts of the ROC essential to committal should be completely rejected as unreliable. It is not enough to show that there is good cause to doubt the reliability of some part of the ROC, or that evidence relied on in the ROC might well be eventually rejected at trial: see Anderson, at paras. 28, 46.

[49] Applying Anderson to this case, the involvement of Terry and Lee in the arson, their lies to the authorities, their plea bargains, their criminal antecedents and their inconsistent statements were all matters that, while relevant to their ultimate credibility, could not justify the outright rejection of the parts of the ROC summarizing their anticipated evidence. Those factors are the kinds of considerations that are inevitably left to triers of fact to assess based on viva voce evidence and a full hearing. The extradition judge's ultimate ruling, while wrongly characterized as an admissibility ruling, is faithful to the ratio of Anderson and Thomlison.

[50] Counsel for the appellant submits that Anderson and Thomlison are wrongly decided in that they create an unworkable rule of admissibility for evidence tendered by the person sought for extradition, and they mischaracterize and unduly restrict the authority to weigh evidence under s. 29(1) (a) of the Act, recognized in Ferras as essential to maintaining the constitutionality of the extradition scheme set out in the Act. Counsel urges the court to reconsider those cases. I would reject this argument for several reasons.

[51] First, and apart from the merits of Thomlison and Anderson, I do not see this as an appropriate case in which to reconsider the correctness of those decisions. Everyone accepts that Ferras contemplates only a limited weighing of the evidence by the extradition judge. To my knowledge, the furthest any case has gone in describing the extent to which the evidence should be weighed is to equate the extradition judge's [page636] function with that of an appellate court when considering the reasonableness of a verdict under s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46: see United States of America v. Graham, [2007] B.C.J. No. 1390, 2007 BCCA 345, 222 C.C.C. (3d) 1, at paras. 31-32, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 467; and United States v. Bennett, [2014] B.C.J. No. 647, 2014 BCCA 145, at para. 19.[^5] In my view, even if one applies the unreasonable verdict standard to the evidence in the ROC, this committal order could not be successfully challenged.

[52] The case against the appellant on the arson/fraud charges as described in the ROC is particularly strong. That case does not depend, as counsel for the appellant suggested, only on the anticipated evidence of the accomplices, Terry and Lee. Their evidence is supported by formidable evidence of the appellant's strong financial motive and equally strong evidence that the fire was "an inside job". The circumstantial evidence points the finger of guilt at the appellant. An appellate court, properly applying the unreasonable verdict standard, could not interfere with convictions on the arson/fraud charges based on the evidence in the ROC.

[53] The case against the appellant is weaker on the gun charge. That charge does depend on the uncorroborated evidence of Lee. The timing of his revelation of the appellant's involvement with the gun is clearly suspicious. Lee said nothing to implicate the appellant in the gun charge until many months after he was charged and shortly before he was scheduled to go to trial on that charge. He implicated the appellant in the arson at the same time.

[54] Despite the obvious potential difficulties with the credibility of Lee's evidence, a jury would be entitled in Canada to convict on his evidence even if unconfirmed. If a jury did convict, and had received a proper caution as to Lee's evidence, I do not see how an appellate court, based only on the obvious difficulties with Lee's credibility, could reverse that conviction as unreasonable under s. 686(1)(a)(i).

[55] Second, the appellant's arguments in favour of overruling Thomlison and Anderson misread those cases. The appellant reads Thomlison and Anderson as creating a rule of admissibility governing evidence tendered by the subject of an extradition request pursuant to s. 32(1) (c). In reality, those cases are principally concerned with describing the extent to [page637] which the extradition judge can weigh evidence in deciding whether that evidence justifies committal under s. 29(1)(a) of the Act. Specifically, those cases are concerned with the extent to which material in the ROC supporting committal can be rejected on the basis that it lacks reliability.

[56] Anderson also speaks to a procedural question, namely, the manner in which the extradition judge can control the presentation of evidence by the subject of the extradition. Anderson makes it clear that the extradition judge can, where the circumstances dictate, take appropriate steps to determine both the substance of the proposed evidence tendered by the subject of the extradition request and the relevance of that proffered evidence to a matter that is properly the subject of consideration on the committal hearing. These powers, which are not unique to an extradition judge, are not rules of admissibility but are rather procedures that a judge may implement to control proceedings in which questions of admissibility must be resolved.

[57] When Thomlison and Anderson are properly understood as describing the limited weighing function assigned to the extradition judge under s. 29(1)(a), the appellant's arguments that those cases create an unworkable rule of admissibility fall by the wayside and cannot warrant a re-examination of the correctness of those cases.

[58] Third, I am not persuaded that Thomlison and Anderson should be overruled. This court can overrule its own jurisprudence:[^6] see David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 2005 21093 (ON CA), 76 O.R. (3d) 161, [2005] O.J. No. 2436 (C.A.), leave to appeal to S.C.C. refused [2005] S.C.C.A. Nos. 388-395; Green v. Canadian Imperial Bank of Commerce (2014), 118 O.R. (3d) 641, [2014] O.J. No. 419, 2014 ONCA 90, at paras. 15 and following.[^7] When asked to overrule a prior decision, this court looks both to the merits of that earlier decision and the policy implications of overruling that decision: see Polowin, at paras. 118-45.

[59] I see nothing in the present legal landscape that would call for a reconsideration of this court's interpretation of Ferras in Thomlison and Anderson. Leave to appeal to the [page638] Supreme Court of Canada was refused in both Thomlison and Anderson: [2007] S.C.C.A. No. 179 and [2007] S.C.C.A. No. 159, respectively. Both cases have been repeatedly applied by this court without apparent difficulty: see, e.g., United States of America v. Orphanou (2011), 107 O.R. (3d) 365, [2011] O.J. No. 4252, 2011 ONCA 612, at para. 35; Pannell, at para. 20; United States of America v. Michaelov, [2010] O.J. No. 5226, 2010 ONCA 819, 264 C.C.C. (3d) 480, at paras. 46-47, leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 37; France v. Diab (2014), 120 O.R. (3d) 174, [2014] O.J. No. 2305, 2014 ONCA 374, at para. 129. They have also been applied in other provinces: see, e.g., Canada (Attorney General) (United States of America) v. M. (M.), [2012] Q.J. No. 5896, 2012 QCCA 1142, at paras. 10 and 17; United States of America v. Edwards, [2011] B.C.J. No. 374, 2011 BCCA 100, 271 C.C.C. (3d) 471, at paras. 31-32. Nor, in my view, have there been any developments, either in the related jurisprudence or legislatively, that would cast any doubt on the correctness of the approach articulated in Thomlison and Anderson.

[60] As acknowledged in Thomlison, at paras. 39-45, the proper interpretation of Ferras is open to legitimate debate. As noted above, at least two cases in the British Columbia Court of Appeal favour a somewhat broader power to weigh the evidence under s. 29(1)(a) of the Act, akin to the scope of appellate review of the reasonableness of a trial verdict under s. 686(1)(a)(i) of the Criminal Code: Graham, at paras. 31-32; and Bennett, at para. 19. For the reasons in Diab, at paras. 139-40, I favour the approach in Thomlison and Anderson. That approach is more consistent with the nature of the extradition process and the role of the committal hearing in that process. Extradition hearings are preliminary proceedings. They are not trials and cannot be allowed to take on the features of a Canadian domestic trial. A level of review of fact-finding that is appropriate to an after-the-fact assessment of an entire trial record, as contemplated by s. 686(1)(a)(i), is not applicable to the function performed by the extradition judge when determining the question of committal under s. 29(1) (a). While an appellate court could well determine whether a reasonable trier of fact could believe the evidence of Lee and Terry having regard to the entirety of a trial record, I do not see how an extradition judge could make that kind of ultimate assessment of their credibility based on the limited paper record available at a committal hearing.

[61]As the chief justice explained in Ferras, at paras. 41-49, s. 7 of the Charter demands that an extradition judge weigh to [page639] some extent the evidence tendered at the committal hearing. That weighing process is intended to ensure that persons are not surrendered for extradition on the basis of evidence that is demonstrably unreliable. Surrender in those circumstances would offend the principles of fundamental justice. The s. 7 protection does not, however, extend to preclude committal where there is reason to doubt the ultimate reliability of the evidence or its ultimate probative value. Those questions are left for the tribunal responsible for determining guilt and innocence: Ferras, at para. 54.

[62] I would not reverse Thomlison and Anderson. I would dismiss the appeal from the committal order.

The Judicial Review Application

[63] Counsel made only one argument in his oral submissions challenging the minister's surrender order. He submits that under the American sentencing regime, the appellant will receive a minimum sentence of 15 years on the fraud/arson charges plus a potential consecutive sentence of up to ten years on the gun charge. Counsel submits that the appellant, if convicted of the charges, will receive sentences totalling 20 years or more. He compares that sentence to the three- to five-year total sentence the appellant would likely receive if convicted of the comparable offences in Canada.

[64] Counsel argues that surrender to face a sentence that is at least 15 years longer than the appellant would face in Canada must shock the conscience of the reasonable member of this community. Surrender to face those sentences, therefore, violates the appellant's rights under s. 7 of the Charter unless the minister obtains assurances from the United States that any sentence imposed on the appellant would be consistent with comparable Canadian sentences.

[65] This same submission was made to the minister and he considered it in his reasons ordering the appellant's surrender. The minister appreciated the submission and his obligation to consider whether a surrender order in the face of a potential sentence well in excess of any sentence that the appellant would face in Canada would violate s. 7 of the Charter. In making that determination and exercising his discretion, the minister considered the relevant jurisprudence. Many cases have addressed this exact issue. The case law supports the minister's conclusion that the potential sentence faced by the appellant in the United States, whether considered on its own or compared to the potential sentence in Canada, did not render his surrender contrary to the principles of fundamental justice. [page640]

[66] I will not review the case law in detail. Reference to three cases adequately demonstrates the reasonableness of the minister's decision. In United States of America v. Jamieson, 1996 224 (SCC), [1996] 1 S.C.R. 465, [1996] S.C.J. No. 24, revg 1994 5920 (QC CA), [1994] Q.J. No. 524, 93 C.C.C. (3d) 265 (C.A.), a unanimous Supreme Court of Canada upheld an order surrendering a 26-year-old man to the state of Michigan to face a 20-year minimum sentence for trafficking in cocaine. In United States of America v. K. (J.H.), 2002 44985 (ON CA), [2002] O.J. No. 2341, 165 C.C.C. (3d) 449 (C.A.), leave to appeal to S.C.C. refused [2002] S.C.C.A. No. 501, 101 C.R.R. (2d) 376, this court upheld a surrender order in the face of a mandatory life sentence with no parole for 25 years on a charge of sexually assaulting a child. In U.S., the British Columbia Court of Appeal upheld a surrender order in the face of a mandatory minimum 25-year sentence on charges of sexually assaulting a child and making child pornography.

[67] In the cases cited above -- and there are others -- the difference between the sentence faced in the United States and the comparable sentence in Canada was greater than the no doubt substantial disparity that exists in this case. In light of this jurisprudence, it cannot be said that the surrender of the appellant, without the requested assurances, would "shock the conscience" of the reasonably informed observer. Surrender is not a violation of the appellant's s. 7 rights. There is no other basis in this record upon which the court could interfere with the minister's exercise of his discretion to order the surrender of the appellant.

[68] I would dismiss the application for judicial review.

Appeal and application dismissed.

Notes

[^1]: In addition to the evidence relating to Lee and Terry, the appellant also sought to introduce evidence of a statement and the grand jury testimony of Jason Varona. The extradition judge did not admit that evidence. That evidence is not relied on for the purposes of the appeal. Counsel also sought to introduce documents obtained from the American authorities containing statements the appellant had made to the investigators to the effect that he was not an American citizen. The extradition judge admitted this evidence and declined to commit on the related charge. This evidence is not in issue on the appeal.

[^2]: The extradition judge's reasons are reported as United States of America v. Aneja, [2012] O.J. No. 1159, 2012 ONSC 1674 (S.C.J.).

[^3]: United States of America v. Ferras; United States of America v. Latty, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 2006 SCC 33. Ferras is discussed below.

[^4]: I think the extradition judge also recognized the distinction. He admitted certain material referable to the obstruct justice charge on the basis that it "could have the effect of making the case on the obstruction of justice charge manifestly unreliable" (at paras. 39-40).

[^5]: An application for leave to appeal to the S.C.C. has been filed in Bennett.

[^6]: The appellant, in keeping with this court's practice where a party seeks to overrule a prior decision, sought a five-judge panel. That request was denied.

[^7]: Applications for leave to appeal to the S.C.C. have been filed for the three cases decided in Green.

End of Document