ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 3036/11
DATE: 2012-03-15

B E T W E E N:

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

Adrienne Rice for the Applicant

Applicant

• and -

Jay Aneja

Leo Adler, for the Respondent / person sought for Extradition

Respondent

HEARD: January 26 th and 27 th , 2011

Lofchik, J.

[ 1 ] The Attorney General of Canada acting on behalf of the United States of America (“USA”) seeks to extradite Jay Aneja from Canada to Virginia upon the following four Canadian offences which are said to correspond to the alleged conduct in the USA:

1. Arson for fraudulent purpose, contrary to Section 435 of the Criminal Code ,

2. Fraud, contrary to Section 380 of the Criminal Code ,

3. Obstructing Justice, contrary to Section 139 of the Criminal Code ,

4. Unauthorized possession of a firearm, contrary to Section 91 of the Criminal Code .

[ 2 ] Section 24(1) of the Extradition Act requires the court to hold an extradition hearing upon receipt of an Authority to Proceed issued by the Minister of Justice pursuant to Section 15 of the Extradition Act . This court’s statutory task is to determine whether there is evidence “…of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offences set out in the Authority to Proceed”. It must also be satisfied on a balance of probabilities that Aneja is the person sought by the extradition partner.

[ 3 ] In support of its application, the USA relies upon the evidence described in the record of the case dated August 15 th , 2011 and its supplements, the supplemental record of case dated September 21, 2011 and the second supplemental record of case dated October 31, 2011 all of which are certified by an assistant US attorney for the Western District of Virginia to be available for trial and sufficient to justify prosecution in the United States. The record of the case and its supplements, therefore, comply with the evidentiary requirements of Section 33(3)(a)(i) of the Extradition Act .

[ 4 ] Counsel for the person sought, Jay Aneja, (“Aneja”), has obtained and seeks to introduce reliable evidence that is relevant to the tests required to be conducted by the judge, as set out in Section 29(1) of the Extradition Act (“the Act”), pursuant to Section 32(1)(c) of the Act.

The Allegations:

[ 5 ] Aneja, who acted as the vice-president of a furniture store in Roanoke, Virginia, The Sofa Outlet, allegedly hired persons to set fire to the store so that he could collect on an insurance policy. Damage to the store and surrounding buildings caused by the fire, which was determined to be intentionally set, was in excess of $800,000. After the fire Aneja filed an insurance claim on behalf of the store to collect benefits for the damage.

[ 6 ] During the investigation Aneja was interviewed by United States Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) special agent Terry Henderson. In the interview, Aneja stated that he had become a US citizen in 1998 although he did not have US citizenship.

[ 7 ] It is alleged that one of the men recruited by Aneja to set the fire, Michael Lee (“Lee”) was given a pistol by Aneja in February 2008.

[ 8 ] The allegations as contained in the record of case and its supplements are based on the anticipated testimony of two of the men who were recruited to set fire to the furniture store (Lee and Sidney Montre Terry (“Terry”)), special agent Henderson, and various officials of the Roanoke’s fire department as well as Sneh Chowdry, who is Aneja’s stepmother, and employees of the Auto Owners Insurance Company, which insured the furniture store.

[ 9 ] For the purposes of this hearing, Aneja is willing to concede the following:

a) that the fire at The Sofa Outlet, in Roanoke, Virginia, on August 3 rd , 2008 was an arson,

b) that Aneja did subsequently submit an insurance claim on behalf of The Sofa Outlet, though the claim was never accepted and no funds were forwarded by the insurance company,

c) that at no time was Aneja a US citizen,

d) that the identity of Aneja as being the person sought is not an issue.

[ 10 ] The record of case relies heavily on the expected testimony of the two co-conspirators, namely Lee and Terry, but especially Lee to support the charges. Lee has a lengthy criminal record, while Terry has a relatively minor one. The remaining evidence set out in the record of case and its supplements is essentially of a technical nature, in the sense that it alludes to who ran the business (Aneja), the correspondence with the insurance company and expert testimony as to the fire being arson.

[ 11 ] In this application, counsel on behalf of Aneja seeks to introduce evidence that goes to the reliability of the evidence relied on by the USA in the record of case and its supplements, particularly the reliability of the evidence of the co-conspirators Lee and Terry. It refers to certain omissions of evidence, discrepancies between various statements made by the co-conspirators, the details and timing of the plea agreements made by the co-conspirators in their agreement to give evidence, their criminal records, other character evidence relating to the co-conspirators, and the failure to refer to or rely upon the anticipated evidence of Jason Verona, another alleged co-conspirator and co-accused, in the record of case and its supplements, despite the assertions made in other documentation that he will be a witness against Aneja.

Issues and the Law:

[ 12 ] The jurisdiction of the extradition judge is statutory and limited. In an oft quoted statement from Republic of Argentina v. Melino , 1987 49 (SCC) , [1987] 1 SCR 536, at para. 29 , it was stated that:

The role of the extradition judge is a modest one; absent express statutory or treaty authorization, the sole purpose of an extradition hearing is to ensure that the evidence establishes a prima facia case that the extradition crime has been committed.

[ 13 ] Once the Minister issues the Authority to Proceed, the extradition judge’s sole responsibility under Sections 24 and 29 is to hold a hearing to determine whether the evidence would support a committal on the Canadian offences described in the Authority to Proceed.

[ 14 ] The extradition judge’s role in assessing the evidence is also an extremely limited one. The Court of Appeal has recently underscored this point in United States of America v. Thomlinson (2007), 215 C.C.C. [3d] 97 at para. 47 where it is stated that:

To summarize, I am satisfied that if there is some evidence that is available for trial and not manifestly unreliable, on every essential element of the parallel Canadian crime, upon which a jury properly instructed could convict, the test for committal will have been met. In that regard, it matters not whether the case against the person sought is “weak” or whether the prospect for conviction “unlikely”. The ultimate question of guilt or innocence is for the trial court in the foreign jurisdiction.

[ 15 ] Section 29(1) of the Act provides as follows:

[29(1)] A judge shall order the committal of the person into custody to await surrender if:

(a) in the case of a person sought for prosecution, 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 proceed and the judge is satisfied that the person is the person sought by the extradition partner.

[ 16 ] In paragraph 41 in United States of America v. Anderson , the Ontario Court of Appeal has recently confirmed that only a limited qualitative evaluation of the evidence proffered by the requesting state is permissible as part of the Section 29(1)(a) inquiry, similar to the role of a preliminary inquiry judge. (see United States of America v. Anderson (2007), 218 C.C.C. [3d] 225 at para. 28 and United States of America v. Ferras , 2006 SCC 33 () , [2006] 2 S.C.R. 77 at para. 39 , citing R. v. Arcuri , 2001 SCC 54 () , [2001] 2 S.C.R. 828.)

[ 17 ] In United States of America v. Dinar , 1997 359 (SCC) , [1997] 2 S.C.R. 462, at para. 122 the Supreme Court of Canada noted that an extradition hearing “is intended to be an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canada’s international obligations.” Referring to this and other decisions, Watt J. in Germany v. Schreiber , [2000] O.J. No. 2618 (S.C.J.) at para. 57 stated, “these authorities make it clear that extradition is to be and remain an expedited process to ensure prompt compliance with Canada’s international obligations that our statutes and treaties reflect.” These authorities, and others like them, remind extradition hearing judges that the hearing is not a trial, nor should it be allowed to become a trial, as though it were a domestic criminal proceeding. It is not simply a matter of degree. There is a difference in kind between an extradition hearing and a trial of a domestic criminal case.

[ 18 ] In United States of America v. Mach , [2006] OJ No. 3204 at para. 19 , Trafford J. reaffirmed that evidence that tends to exonerate the accused, or contradicts the requesting state’s case for the prosecution [such a as a substantive defence], but does not specifically undermine the reliability of that case cannot be weighed or considered by the extradition judge:

The notion of manifest unreliability articulated by the court in United States of America v. Ferras …requires a body of evidence that directly undermines the reliability of the evidence in the record of case presented by the requesting state. The calling of the defence, as it would be at trial, is not what is contemplated under United States of America v. Ferras .

[ 19 ] In United States of America v. Anderson , supra , the Ontario Court of Appeal affirmed the approach taken by Trafford J. in Mach and confirmed that, before the person sought is permitted to call evidence, she or he must first establish that the proffered evidence, if tendered, could lead the extradition judge to conclude that the evidence offered by the requesting state is so manifestly unreliable or defective that it should be disregarded under Section 29(1)(a) of the Extradition Act .

[ 20 ] Section 32 of the Act sets out the type of evidence admissible at the committal hearing. This section established an evidentiary regime quite different from the rules of evidence applicable in domestic criminal proceedings. It reads as follows:

[32(1)] Subject to subsection (2), evidence that would otherwise be admissible under Canadian law shall be admitted as evidence at an extradition hearing. The following shall also be admitted as evidence, even if it would not otherwise be admissible under Canadian law:

( a ) the contents of the documents contained in the record of the case certified under subsection 33(3);

( b ) the contents of the documents that are submitted in conformity with the terms of an extradition agreement; and

( c ) evidence adduced by the person sought for extradition that is relevant to the tests set out in subsection 29(1) if the judge considers it reliable.

(2) Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.

[ 21 ] The section does not give the person sought a general right to call evidence at the extradition hearing. Under Section 32(1)(c) of the Act, he may only introduce evidence if it is: (1) relevant to the Section 29(1) committal test and (2) considered by the judge to be reliable.

[ 22 ] Moreover, any evidence aimed at contradicting or providing a defence to the evidence adduced by the requesting state, is inadmissible as irrelevant, since an extradition judge has no authority to weigh the evidence presented and decide issues of credibility or draw competing inferences. Furthermore, the judge may decline to embark on an evidentiary hearing where counsel is unable to show a reasonable likelihood that the hearing can assist in determining an issue before the court, namely, the sufficiency of the evidence for committal. (see Anderson supra at para. 28 and paras. 41 to 42)

[ 23 ] Counsel for Aneja argues that evidence from the arrest record, the bail record and other material contained in the application record should be admitted as it would show numerous improbabilities, omissions, contradictions, impossibilities, lies, errors and misstatements in the record of case and its supplements making the evidence relied upon by the USA too unreliable to extradite Aneja.

Analysis:

[ 24 ] I do not question that the evidence sought to be introduced meets the reliability threshold in Section 32(1)(c) of the Act as it is information from the records of various agencies of the requesting state (USA). The admissibility of this evidence therefore turns on whether it is “relevant to the tests set out in Section 29(1) of the Act.”

[ 25 ] In United States of America v. Ferras , the Supreme Court held that the principles of justice required some qualitative assessment of the evidence relied upon to support the extradition request. In dealing with that qualitative assessment, McLaughlin C. J. at para. 54 stated:

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 the jury and is therefore not sufficient to meet the test for a committal.

[ 26 ] The question to be decided in this application therefore is:

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?

[ 27 ] In United States of America v. Anderson , supra, the Ontario Court of Appeal interpreted some of the key elements of the Ferras decision in the following manner:

[26] United States of America v. Ferras turned a new jurisprudential page in the law of extradition. The Supreme Court unanimously concluded at paras. 39-40 that the principles of fundamental justice enshrined in Section 7 of the Charter considered in the context of an extradition proceeding, required a judicial assessment of the evidence beyond a simple consideration of whether there was some evidence, regardless of its quality, to support the existence of each element of the parallel criminal offence.

[27] Chief Justice McLaughlin explained that since extradition proceedings could result in the removal of the person sought for extradition from Canada, an obvious significant inference with the person’s liberty and security, the principles of fundamental justice required some qualitative assessment of the evidence relied on in support of the extradition request.

[28] United States of America v. Ferras contemplates a limited qualitative evaluation of the evidence proffered by the requesting state. As this court recently said in United States of America v. Thomlinson 2007 ONCA 42 () , [2007] O.J. No. 246 at paras. 45-46 (C.A.), United States of America v. Ferras does not envision weighing competing inferences that may arise from the evidence. It does not contemplate that the extradition judge will decide whether a witness is credible or his or her evidence is reliable. Nor does it call upon the extradition judge to evaluate the relative strength of the case put forward by the requesting state. There is no power to deny extradition in cases that appear to the extradition judge to be weak or unlikely to succeed at trial. United States of America v. Ferras does permit an extradition judge to remove evidence from judicial consideration if the extradition judge is satisfied that the evidence is “so defective” or “appears so unreliable” that it should be disregarded and given no weight for the purposes of deciding whether the test for committal has been met under Section 29(1) of the Extradition Act .

[ 28 ] Following the decision in United States of America v. Ferras , the Ontario Superior Court of Justice developed the procedure in R. v. Mach , [2006] O.J. 3204 (S.C.J.) , for the conduct of an extradition hearing that has since been adopted by trial courts elsewhere in Canada. It was described at para. 14:

[14] In my view the extradition judge may require the respondent in a hearing under Section 29 of the Act to summarize the evidence to be called and its legal significance to the application before granting him an evidentiary hearing. The nature of the evidentiary hearing, if granted, is in the discretion of the hearing judge, subject to Section 32(1)(c) of the Act as interpreted in United States of America v. Ferras , supra at para. 53 . This will ensure the orderliness and fairness of the hearing, and prevent it from assuming the shape of a criminal trial. Where the proffered evidence is admissible and is relevant to an issue to be determined by the extradition judge, such as the reliability of the evidence in the record of case or its sufficiency, permission will be given to call the evidence. However, where it is either inadmissible or irrelevant such permission will not be given by the court. The respondent is not entitled to call evidence that is inadmissible. Nor is he entitled to call evidence that is irrelevant to an issue at the hearing. The essential fairness of the hearing is not diminished by such a ruling of the extradition judge. It is also compatible with the narrow jurisdiction of the court, as described in United States of America v. Ferras supra…

[ 29 ] The Ontario Court of Appeal approved the procedure articulated in Mach in Anderson , at paras. 43 and 46:

[43] The expansion of the judicial role in extradition proceedings affected by United States of America v. Ferras , supra, creates a tension between the limited right to challenge the credibility and reliability of the evidence tendered by the requesting state and the need to maintain the essential nature and narrow focus of the extradition hearing. If anyone who could potentially give evidence that could significantly undermine the reliability or credibility of the evidence relied on by the requesting state could be compelled to testify at the extradition hearing I do not see how the extradition judge could prevent the proceeding from becoming a wide ranging discovery like process for the party whose extradition was being sought.

[46] The procedure adopted by Trafford J. in United States of America v. Mach , supra, was followed in United states of America and Huynh , [2006] O.J. No. 3730 (QL) 71WCB (2d) 263 (S.C.J.) . I think this approach strikes the appropriate balance between the expanded inquiry on committal dictated by United States of America v. Ferras , supra, and the need to maintain the nature and focus of the extradition hearing. The extradition judge must be satisfied that the proffered evidence could when considered in combination with the rest of the record, lead him or her to conclude that the evidence offered by the requesting state that is essential to the committal for extradition is so manifestly unreliable or defective that it should be disregarded for the purposes of determining whether the requesting state has met its evidentiary burden under Section 29(1)(a).

[ 30 ] The post Ferras cases that interpreted the meaning of “manifest unreliability” are instructive. In United States of America v. Thomlinson , supra, the Ontario Court of Appeal described “manifest unreliability” in the following manner at para. 45:

Unlike the situation that existed post Shephard , Ferras now authorizes extradition judges to assess the availability and quality of the evidence that can legitimately be included in the “some evidence” basket for sufficiency purposes. In my view that enables them to discard evidence that is not realistically available for trial and/or evidence that is manifestly unreliable, ie. evidence upon which it would clearly dangerous or unsafe to convict.

[ 31 ] In the case United States of America v. Hulley (2007), 72 WCB (2d) 510 (B.C.S.C.) , Cullen J. offered the following at para. 35:

The standard of manifest unreliability is a stringent one. Manifest is defined in the Shorter Oxford Dictionary as “evident to the eye, mind or judgment; obvious.”

[ 32 ] In Germany (Federal Republic) v. Pushati (2007), 79 WCB (2d) 160 (Alta.Q.B.) at para. 29 the court framed the issue as meaning evidence that would cause the judge to take the case away from the jury. In United States of America v. Molesti [2010] O.J. No. 4755 (S.C.) at paras. 20-21 manifestly unreliable evidence was described as attracting the complete rejection of the evidence.

[ 33 ] A high threshold attaches to the categorization of evidence that may be called “manifestly unreliable”. It seems a reasonable conclusion that “manifest unreliability” in the context of an extradition case would mean evidence that is so devoid of reliability that it should be rejected out of hand when considering the issue of committal. It is evidence that is so unreliable that it is not worthy of consideration by the trier of fact.

[ 34 ] In United States of America v. Anderson , supra, at para. 33 writing for the unanimous court, Doherty J. A. with reference to the argument raised by the person sought that he should be allowed to cross-examine a co-conspirator whose evidence was being relied on by the requesting state wrote as follows:

[32] In this case there were features of Lennox’s evidence that could call his credibility and reliability and reliability of his evidence into question were this a criminal proceeding in Canada. Lennox was a co-conspirator who was seeking a benefit through cooperation with the authorities. There were some inconsistencies between his sworn statement and his grand jury testimony. At the extradition hearing, counsel did not argue that those features could justify refusing to commit Anderson for extradition. Counsel no doubt appreciated that United States of America v. Yang (2001), 2001 20937 (ON CA) , 157 CCC (3d) 225 (Ont.C.A.) foreclosed those arguments.

[33] …as is evident from the facts in United States of America v. Ferras , where much of the evidence came from a co-conspirator, the mere fact that evidence relied on by the requesting state has potential significant weaknesses, or comes from sources that are less than pristine, cannot justify totally discounting that evidence when determining whether the requesting state has met the test for extradition. Having regard for the entirety of Lennox’s sworn statement and grand jury testimony, there is nothing in that material or his status as a co-conspirator seeking a favorable bargain with the prosecuting authorities that could justify characterizing his statement and evidence as “so defective” or “so unreliable” as to warrant the exclusion of the statement and testimony from consideration when determining the issue of committal for extradition.

[ 35 ] In that case the extradition judge refused leave to the person sought to cross-examine the co-conspirator whose evidence was relied on on the basis that it was in reality aimed at challenging the reliability of the co-conspirator and the reliability of his evidence. Citing United States of America v. Yang , supra, the extradition judge ruled that the co-conspirator’s credibility and the reliability of his evidence were irrelevant to the determination she had to make under Section 29(1)(a) of the Extradition Act . The proposed evidence was therefore irrelevant and did not meet the admissibility criteria set out in Section 32(1)(c) of the Act. This conclusion was upheld by the Court of Appeal.

[ 36 ] In Scarpitti v. USA , 2007 BCCA 498 the person sought argued that the evidence of the co-conspirators should have been excluded. The British Columbia Court of Appeal at para. 40 held that:

[40] The fact that the alleged accomplices are now cooperating witnesses against him as a result of plea agreements does not render the evidence attributed to them in the record of case or supplementary record of case “manifestly unreliable”.

[43] …in short there is no “air of reality” to the claim that the evidence of these witnesses is “manifestly unreliable”. The points raised by Mr. Arrell go to credibility. These arguments may persuade a jury to disregard the evidence or some of it or to give it little weight, but they fall well short of weakening the case to the extent that committal should be refused. I would not give effect to this ground of appeal.

[ 37 ] In Earles v. USA , 2003 BCCA 20 , the person sought appealed the committal order on the basis that the extradition judge erred in refusing his counsel an opportunity to cross-examine the prosecuting attorney whose affidavit was filed in support of the application for extradition on the basis that such cross-examination may have disclosed evidence that the request for the appellant’s return was based on evidence of accomplices that was tainted, suspect and unreliable. The British Columbia Court of Appeal upheld the trial judge’s ruling stating that the fact that some of the affiants and affidavits giving evidence against the person sought were accomplices who made plea bargains did not provide the basis of a Section 7 Charter violation. The Court of Appeal found that the extradition judge properly concluded on the evidence before him that cross-examination would only go to weight and not to admissibility. The weight of the evidence is a matter for the trial judge in the requesting state.

[ 38 ] Aneja’s counsel has referred me to statements made in a summary of facts filed on behalf of the requesting state in proceedings relating to an application for judicial interim release of Jay Aneja. At paragraph 20 of that summary there is a statement by an unknown person, presumably a person of authority, who says that they were present at a meeting with Aneja and his lawyer on August 2, 2008 where it was confirmed that Aneja was not a US citizen. The next paragraph states that on August 4, 2008, Terry Henderson, an ATF special agent, interviewed Aneja who said that he was a US citizen, which was untrue at the time when Aneja knew that Henderson was investigating an arson of Aneja’s building. These statements relate to a charge of obstruct justice and are clearly contradictory as far as what Aneja said concerning his citizenship. They can also be evidence of Aneja’s state of mind or intent to obstruct justice.

[ 39 ] Evidence of the statement of August 2 nd , 2008 and any other statements relating to Aneja’s citizenship could have the effect of making the case on the obstruction of justice charge manifestly unreliable as the issue of intent to obstruct is called into question by this contradictory evidence.

[ 40 ] I find, therefore, that the evidence of the statement of August 2 nd , 2008 and any other evidence surrounding statements made by Aneja concerning his citizenship status to be relevant to the tests set out in S. 29 of the Act and counsel for Aneja may enter this evidence at the extradition hearing.

[ 41 ] I find that the rest of the evidence counsel for Aneja seeks to introduce goes to the reliability of the evidence of the co-conspirators and other potential witnesses. It refers to omissions of evidence, discrepancies between various statements made by the co-conspirators, the details and timing of plea agreements made by the co-conspirators, the criminal records and other character evidence relating to the co-conspirators.

[ 42 ] The weight to be attached to this evidence and circumstances surrounding the manner in which the evidence was obtained is a matter for the trier of fact to consider.

[ 43 ] Evidence contained in a properly certified record of the case, even if from accomplices or co-conspirators, is presumptively reliable. (see Attorney General of Canada v. Fester , 2009 BCSC 1331 )

[ 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 . Each case 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 sought 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.

[ 45 ] The person sought seeks to include the proposed evidence to challenge the credibility of the co-conspirators. It may be, as was said in Scarpitti , that the applicant’s arguments may persuade a jury to disregard the evidence of co-conspirators, but they do not weaken the case for committal.

[ 46 ] Except for the evidence relating to the obstruct justice charge referred to above, the application is dismissed.

Lofchik J.

Released: March 15, 2012

COURT FILE NO.: 3036/11
DATE: 2012-03-15

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: The Attorney General of Canada on Behalf of the United States of America Applicant - and – Jay Aneja Respondent REASONS FOR JUDGMENT Lofchik, J. dm

Released: March 15, 2012