Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230329 DOCKET: C70190

Nordheimer, Sossin and Copeland JJ.A.

BETWEEN

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

and

Khaophone Sychantha a.k.a. KAO Appellant

Counsel: Frank Miller, for the appellant Roy Lee, for the respondent

Heard and released orally: March 28, 2023

On appeal from the order of Justice Thomas J. Carey of the Superior Court of Justice, dated December 17, 2021.

Reasons for Decision

[1] The Attorney General of Canada (“AG”), on behalf of the United States of America, sought the extradition of Khaophone Sychantha on drug-related charges. The appellant was ordered committed for extradition. He now appeals that order.

[2] The record of the case before the extradition judge involved multiple parties, all of whom had been arrested in the United States for importing drugs into that country. Each of those persons identified the appellant as the source of the drugs that they transported into the United States.

[3] The appellant was unrepresented at the extradition hearing. The appellant had had several lawyers acting for him up to the hearing but, in each case, he had discharged the lawyer. Indeed, a Rowbotham order had been obtained prior to the hearing to provide the appellant with a lawyer but the appellant also discharged that lawyer.

[4] The appellant does not argue that the evidence provided by the requesting state as presented on the committal hearing did not justify committal. Rather, he now contends that the extradition hearing was unfair because the extradition judge did not provide him with sufficient assistance given his unrepresented status. We do not agree. We do not see anything that the extradition judge failed to do that materially affected the fairness of the hearing. It is always possible to argue that the presiding judge could have done more. Perfection is not, however, the standard to be applied. The appellant must demonstrate a serious failure and that he has not done: R. v. Forrester, 2019 ONCA 255, at para 17.

[5] The appellant’s main complaint is that the evidence in the record identifying him as the person who supplied the drugs was flawed. Again, we do not agree. Six separate witnesses identified the appellant by photographs shown to them. In addition, details about each witness’s personal familiarity with the appellant were provided. It is noteworthy that many of the witnesses had ongoing contact with the appellant, mostly in person, on multiple occasions over the course of many months. The appellant was not a stranger to the witnesses.

[6] In any event, any challenge to the quality of the identification process is a matter for trial. In that regard, it is important to remember that the test to be applied by an extradition judge under s. 29(1)(a) of the Extradition Act, S.C. 1999, c. 18 is the committal test applied by a justice at a preliminary inquiry in a domestic Canadian prosecution. Consequently, the extradition judge does not evaluate the strength of the case, nor do they generally evaluate the credibility or reliability of the witnesses. The evidence must be rendered "so defective" or "so unreliable" before an extradition judge can disregard it: U.S.A. v. Anderson, 2007 ONCA 84, at paras 28-31.

[7] The appeal is dismissed.

“I.V.B. Nordheimer J.A.”

“L. Sossin J.A.”

“J. Copeland J.A.”