WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding concerning the identity of and any information that would disclose the identity of any party, witness, or other person mentioned in this decision, has been made and continues.

The president further directs that the entire file in this appeal, including all materials filed by or on behalf of the parties, all records, exhibits or other material, of any nature, transmitted to the Court of Appeal for Ontario from the lower court, all correspondence, memoranda, or any other documents or records of any kind contained within the appeal file, be sealed and not made available to any person without an order of this court.

Portions of this judgment have been redacted by order of the Court.

Court Information

Court of Appeal for Ontario

Date: 2017-02-13

Docket: C58068 and C60934

Panel: Sharpe, Rouleau and Benotto JJ.A.

Matter

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 for judicial review pursuant to s. 57 of the Extradition Act, S.C. 1999, c. 18

Parties

Between:

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

and

A.B. Applicant

Counsel

Nancy Dennison, for the respondent

Julie Santarossa, for the appellant

Hearing

Heard and released orally: February 3, 2017

On appeal from: The committal order of Justice [redacted] of the Superior Court of Justice, dated [redacted], and on application for judicial review of the surrender order of the Minister of Justice, dated [redacted].

Endorsement

Committal

[1] The appellant appeals his committal for extradition to the United States. He also seeks judicial review of the Minister's order that he be surrendered to the United States. For convenience we refer to him throughout as the appellant.

[2] At the committal hearing, the Attorney General relied on the evidence of two alleged co-conspirators. One of those co-conspirators is now deceased. The appellant submits that the evidence of the other is manifestly unreliable on the theory that the co-conspirator learned that the appellant was a confidential informer and framed the appellant in retaliation and to absolve himself from the alleged offense.

[3] The committal judge did not err in concluding that the question of the reliability of the co-conspirator's evidence is a matter for the courts of the receiving jurisdiction. We are not persuaded that the death of the co-conspirator materially affects the committal decision. Cooperation with the police to obtain a more lenient sentence does not render a witness's evidence "manifestly unreliable". It is merely a factor that may be taken into account in assessing the reliability of the evidence, a matter that must be left to the trier of fact.

[4] Moreover we agree with the respondent that the appellant's "set up" theory is largely based on speculation.

Minister's Surrender Order

Section 7 of the Charter

[5] The Minister concluded that the possible sentence the appellant would face in the United States would not "shock the conscience" and violate his s. 7 Charter rights. In our view, that conclusion was reasonable. The offense with which the appellant is charged is a serious one [redacted] in Canada. While he may face a minimum [redacted] sentence in the United States, it has consistently been held that sentences of that length for similar offenses do not "shock the conscience".

[6] The Minister determined that it would be open to the US courts to consider the appellant's cooperation with the police in Canada as a mitigating factor. Moreover there is no guarantee of a reduction in sentence in Canada for cooperation with the police with respect to other matters prior to the commission of the offense for which the individual is convicted.

Section 6(1) of the Charter

[7] The Minister considered all of the relevant Cotroni factors. His decision that extradition was a reasonable limit on the appellant's s. 6(1) Charter rights was justified, attracts deference in this Court and was reasonable. The Minister recognized that while the appellant could be tried in Canada, there were several valid reasons for deferring to the on-going proceedings in the United States. The investigation was conducted entirely by the US law enforcement authorities; the physical evidence is in the United States; most prosecution witnesses reside in the United States; other co-accused have already been convicted and sentenced in the United States; and it is in the interests of justice that all co-accused should face justice in the same jurisdiction.

[8] The Minister gave full consideration to the appellant's contention that he would call witnesses residing in Canada and explained why that was not sufficient to amount to a Charter violation.

[9] Evidence that the appellant was a confidential informer is not exculpatory and there was no suggestion that he was acting as a police agent at any time let alone at the time of this alleged conspiracy.

Disposition

[10] Accordingly the appeal from committal is dismissed and the application for judicial review of the Minister's order of surrender is dismissed.

"Robert J. Sharpe J.A."

"Paul Rouleau J.A."

"M.L. Benotto J.A."