Court of Appeal for Ontario

Date: 2019-05-10 Docket: C65656

Judges: MacPherson, Juriansz and Rouleau JJ.A.

In the Matter of an Application Under Section 29 of the Extradition Act

Between

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

and

Samuel Ebanks Respondent (Appellant)

Counsel

Samuel Ebanks, self-represented Peter Copeland, appearing as duty counsel Christopher Bundy, for the respondent

Heard: May 7, 2018

On appeal from the committal order of Justice Mario D. Faieta of the Superior Court of Justice, dated June 7, 2018, and on application for judicial review of the surrender order of the Minister of Justice, dated August 23, 2018.

Reasons for Decision

[1] At the conclusion of the hearing, the court advised that the appeal was dismissed with reasons to follow. These are the court's reasons.

[2] The appellant is wanted for prosecution in the United States for the murder of his girlfriend Vickie Webb. The United States sought his extradition and an Authority to Proceed was issued by the Minister of Justice on June 27, 2017 for the offence of murder. On June 7, 2018, he was ordered committed for extradition and on August 23, 2018, the Minister ordered his surrender to American authorities.

[3] The appellant requested that the Minister of Justice obtain assurances from the United States that he would not be tried for the offence of first-degree murder and that he would not face the death penalty. According to article 12 of the Treaty on Extradition Between the Government of Canada and the Government of the United States of America, 3 December 1971, Can. T.S. 1976 No. 3, the United States could seek Canada's consent "to his detention, trial, punishment for an offence other than that for which extradition was granted" with respect to an American offence which carries with it the possibility of the death penalty. On April 16, 2019, the International Assistance Group, on behalf of the Minister, stated that it would not grant "such waiver of specialty request without seeking and receiving an assurance from the United States that the death penalty will not be sought or imposed, or, if imposed, will not be carried out." On the basis of this assurance, the appellant does not seek a review of the Minister's surrender order.

[4] The appellant, however, appeals the judge's order that he be committed for extradition. He argues that the extradition judge erred in finding that a critical statement contained in the Authority to Proceed is evidence gathered in the United States.

[5] The statement is from a phone conversation the appellant had with a Nashville police detective. In this conversation, the appellant admitted that he had been in a dispute with the deceased, and that there was a knife and a lot of blood. He also stated that he was not sure whether his girlfriend was alive when he left the apartment.

[6] The appellant argues that he never made the statement to the Nashville police detective, and that because he was located in Toronto when he spoke to the Nashville police detective, the evidence was gathered in Canada. Pursuant to s. 32(2) of the Extradition Act, S.C. 1999, c. 18, "[e]vidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted". In the appellant's submission, the evidence would be inadmissible under Canadian law, because, among other bases, there was a violation of the appellant's ss. 7 and 10(b) Charter rights.

[7] We find no basis to interfere with the extradition judge's decision. Whether or not the statement was actually made is an issue for a trial. As for the place where the evidence was gathered, several courts have found that information obtained by telephone where the call is made, as here, by a police officer located in the United States to a person located in Canada, for the purpose of an American investigation, is gathered where the officer is located: see e.g. United States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 136. As a result, the evidence did not have to meet Canadian requirements for admissibility and was properly relied on by the extradition judge as constituting admissible evidence justifying committal for trial in Canada, had the offence occurred in Canada.

[8] For these reasons, the appeal is dismissed.

J.C. MacPherson J.A. R.G. Juriansz J.A. Paul Rouleau J.A.