ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-18271
DATE: 2012/07/10

B E T W E E N:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA

Mr. Adrienne Rice for the Applicant

APPLICANT

• and -

JAY ANEJA

Mr. Leo Adler for the Respondent

RESPONDENT

HEARD: at Hamilton on June 28 and June 29, 2012

LOFCHIK J.

REASONS FOR JUDGMENT

STATEMENT OF THE CASE

[ 1 ] The Minister of Justice has issued an Authority to Proceed pursuant to Section 15 of the Extradition Act , S.C. 1999, c. 18 which authorizes the Attorney General of Canada to seek an order for the committal for extradition of Jay Aneja (“Aneja”). Aneja is being sought for prosecution in the United States of America for among other allegations, recruiting persons to set a fire to a furniture store in order to allow him to claim benefits for damage under the store’s insurance policy. The authority to proceed lists the following Canadian offences:

• Arson for fraudulent purpose contrary to Section 435 of the Criminal Code ;

• Fraud contrary to Section 380 of the Criminal Code ;

• Obstructing Justice contrary to Section 139 of the Criminal Code ; and

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

[ 2 ] Subsection 24.1 of the Extradition Act requires the court to hold an extradition hearing upon receipt of an Authority to Proceed (“ATP”). 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”. ( Extradition Act , s. 29(1) (a)). It must be satisfied on the balance of probabilities that Aneja is the person sought by the Extradition Partner. This latter requirement has been conceded by counsel on behalf of Aneja so that identity is not an issue in this hearing.

[ 3 ] This hearing does not determine whether the Minister will surrender Aneja to the United States. If the court orders committal, Aneja then has a right to make submissions to the Minister as to whether the Minister should decline to surrender, or to surrender with conditions. ( Extradition Act, s. 43 ).

[ 4 ] The evidence available to the United States is described in greater detail in the Record of Case (“ROC”) and its supplements, the Supplemental Record of the Case, the Second Supplemental Record of the Case and the Third Supplemental Record of the Case which are certified by an assistant United States attorney for the Western District of Virginia to be available for trial and sufficient to justify prosecution in the United States. There is no issue as to whether the ROC and its supplements therefore comply with the evidentiary requirements of the Extradition Act . The Attorney General of Canada’s position is that the test for committal is satisfied in relation to the offences set out in the Authority to Proceed.

[ 5 ] Counsel for Aneja argues that he should not be committed on the offences for the reasons set out below.

THE ALLEGATIONS

[ 6 ] Aneja, who acted as 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 the insurance policy. Damage to the store and surrounding buildings caused by the fire, which was determined to be intentionally set, and was in excess of $800,000.00. After the fire, Aneja filed an insurance claim on behalf of the store to collect benefits for the damage.

[ 7 ] During the investigation, Aneja was interviewed by United States Bureau of Alcohol, Tobacco, Firearms and Explosives, Special Agent Terry Henderson. In the interview, Aneja stated that he had become a U.S. citizen in 1998, although he did not have U.S. citizenship. In a subsequent interview with his counsel present, Aneja admitted to not having become a U.S. citizen.

[ 8 ] One of the men recruited by Aneja to set the fire, Michael Lee (“Lee”) was given a pistol by Aneja in February 2008 and told “do something with it”.

[ 9 ] The allegations as contained in the ROC and its supplements are based upon the anticipated testimony of: the two men who were recruited to set fire to the furniture store, Lee and Sidney Montre Terry (“Terry”); Special Agent Henderson; Roanoke City Fire Department officials, Deputy Fire Marshall Ronnie Campbell and Investigator Lt. Sam Stump; Sneh Chowdry (who is Aneja’s stepmother); and employees of the Auto Owners Insurance Company, which insured the furniture store.

LAW

[ 10 ] 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 , the Supreme Court of Canada stated:

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.

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

[ 12 ] The extradition judge need only assess the sufficiency of the evidence against the Canadian offences in the ATP and the legal standard for committal set out in the Act:

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.

[ 13 ] Section 32 of the Extradition Act establishes an evidentiary regime quite different from the rules of evidence applicable in domestic criminal proceedings:

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.

[ 14 ] In this case, I have ruled that there is no evidence that may be adduced by the person sought relevant to the issues to be dealt with in s. 29(1)(a) of the Act. There is no evidence gathered in Canada to be considered at this hearing.

[ 15 ] The most recent statement by the Supreme Court of Canada of the test to be applied under s. 29 of the Extradition Act was set out in United States of America v. Ferras 2006 SCC 33 , [2006] 2 S.C.R. 77.

[ 16 ] Section 29(1)(a) requires some evidence of the existence of each element of the Canadian offence that parallels the offence on which extradition is sought. That evidence must be such as would permit a reasonable jury, properly instructed, to convict on the parallel Canadian offence ( see United States of America v. Ferras at para 38 ). Prior to United States of America v. Ferras , if the evidentiary threshold was crossed, the evidence proffered by the requesting State justified committal. A qualitative assessment of the evidence relied on by the requesting State was beyond the scope of the s. 29(1)(a) inquiry. The extradition judge could not weigh the evidence either by testing the credibility of the sources of that evidence or by examining the reliability of the evidence put forward by the requesting State. Consequently, evidence that could potentially affect the quality of the evidence proffered by the requesting State was irrelevant at the extradition hearing.

[ 17 ] United States of America v. Ferras modified that approach. The Supreme Court unanimously concluded at paras. 39 and 40 that the principles of fundamental justice enshrined in s. 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 the quality, to support the existence of each element of the parallel criminal offence. The court held that:

[…] since extradition proceedings could result in the removal of the person sought for extradition from Canada, an obvious significant interference 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.

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 .

[ 18 ] The Chief Justice stated at paragraph 59 of Ferras : “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) .”

ANALYSIS

[ 19 ] Counsel for Aneja argues that the evidence relied on by the USA in its ROC is so unreliable that it should not support a committal. He argues that the unreliability of that evidence arises from certain omissions of evidence, discrepancies between various statements made by the co-conspirators, the details and timing of plea agreements made by the co-conspirators and their agreement to give evidence, the criminal records of the co-conspirators and other character evidence relating to these co-conspirators as well as the failure to refer to or rely upon the anticipated evidence of Jason Verona, another alleged co-conspirator and co-accused, in the ROC and its supplements, despite assertions made in other documents that he will be a witness against Aneja.

[ 20 ] 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. 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.

[ 21 ] 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 s. 29(1)(a) assessment, an extradition judge must begin from the premise that the material properly certified by the requesting State pursuant s. 33 is presumptively reliably for the purposes of the Extradition Act , including the s. 29(1)(a) assessment (see United States of America v. Ferras at paras 52-56 ).

[ 22 ] The mere fact that evidence relied upon 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. The fact that a co-conspirator is seeking a favorable bargain with the prosecuting authorities does not 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. (see United States of America v. Anderson (2007), 218 C.C.C. [3d] 225 (Ont. C. A.); application for leave to appeal dismissed, [2007] S.C.C.A. 159).

[ 23 ] 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 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 s. 29(1) (a).

[ 24 ] 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 (see United States of America v. Thomlinson (2007), 215 C.C.C. [3d] 97 (Ont. C.A.); application for leave to appeal dismissed, [2007] S.C.C.A. 179).

[ 25 ] Looking at the case as a whole, I am satisfied that the evidence put forward by the requesting State (the United States of America) in support of the extradition of Jay Aneja is both available for trial and not so manifestly unreliable so as to require it to be discarded when reviewed to the standard set out in Ferras , Thomlinson and Anderson . I find that such evidence is sufficient for the purpose of determining whether the requesting State has met its evidentiary burden under s. 29(1) (a).

[ 26 ] Counsel for Aneja also argues that there are legal defects in the material before this court such that the evidence in the ROC does not justify a committal or trial in Canada on the following offences set out in the ATP.

• Fraud, contrary to s. 380 of the Criminal Code ;

• Obstructing Justice, contrary to s. 139 of the Criminal Code ;

• Unauthorized Possession of a Firearm, contrary to s. 91 of the Criminal Code .

FRAUD

[ 27 ] Counsel for Aneja argues that the count of fraud set out in the ATP cannot be sustained on the facts as set out in the ROC as no one was defrauded. The basis of the charge is that Aneja, being the operator of the Sofa Outlet business, after the fire made a claim under the business fire insurance policy indicating that the insured did not know who had set the fire, after he had recruited Lee to set the fire. The insurance policy did not cover fires that were intentionally set. Aneja misrepresented that he did not know the source of the fire. Aneja’s purpose for having the fire set was to collect benefits under the insurance policy.

[ 28 ] Counsel for Aneja argues that, as the insurance company did not pay the claim, there was no deprivation or risk of deprivation as required to sustain a charge of fraud. Counsel argues that on the basis of the facts before the court, the most that could be supported would be a charge of attempted fraud.

[ 29 ] While to make out a charge of fraud there need not be actual economic loss, there must nevertheless be actual risk of prejudice to the economic interests of the alleged victim. Although only the risk of economic loss, rather than economic loss itself need be proved, risk of economic loss does not arise until a prospective victim takes some action as a result of the fraud that puts its assets at risk (see United States of America v. Schrang (1997), 1997 3588 (BC CA) , 114 C.C.C. (3d) 553 (B.C.C.A.)).

[ 30 ] Here the evidence shows an intent to deceive the insurance company by having it pay a fire claim which was fraudulent. The insurance company apparently was not deceived and did not pay the claim. As the intended victim did not act to their injury, the element of deprivation required to establish fraud is not supported by the facts set out in the ROC. However, there is some evidence before this court to warrant committal on a charge of attempted fraud if the conduct complained of had occurred in Canada.

OBSTRUCTING JUSTICE

[ 31 ] The facts in the ROC relied on to support a committal on a charge of obstructing justice are a statement made by Aneja on or about August 4 th , 2008, when being questioned by Special Agent Henderson concerning the circumstances of the fire, that he was a United States citizen. Subsequently, after the initial interview on August 27 th , 2008, Special Agent Henderson met with Aneja and his attorney Robert Rider at which time that Rider confirmed that Aneja was not, in fact, a citizen of the United States. Authorities for the requesting State have raised the argument that Aneja’s claim of being an American citizen obstructed the investigation into the cause of the fire, in that, time and attention had to be used to confirm or deny this false information. And when it was discovered that he was not, in fact, a U.S. citizen, he further obstructed the investigation because everything that he had said became suspect and had to be either verified or discounted, requiring further investigative effort.

[ 32 ] Section 139 of the Criminal Code makes it an offence to willfully attempt to obstruct, pervert or defeat the course of justice in any manner.

[ 33 ] The “course of justice” is not restricted to Judicial proceedings already commenced, but includes the investigative stage of proceedings (see R. v. Wijesinha (1995), 1995 67 (SCC) , 100 C.C.C. (3d) 410 (S.C.C.)). In determining whether an offence under s. 139(2) of the Code has been made out, it is not necessary to find that the course of justice was actually obstructed or perverted. It must be shown that the accused willfully preformed acts with the intention that the course of justice be obstructed, whether successful or not (see R. v. David, 2009 37705 at para. 26 ).

[ 34 ] In R. v. Beaudry 2007 SCC 5 , Charron J. held for the majority at page 375: “To sum up, the actus reus of the offence will be established only if the act tended to defeat or obstruct the course of justice.

[ 35 ] In my view, a reading of the case law leads one to conclude that if the act that gives rise to the obstruction of justice charge is, in effect, lying to investigators, the act of lying must be linked to the subject matter of what is being investigated. Here the falsehood seemed to be related to a collateral matter and not the subject matter of the investigation, namely the fire at the Sofa Outlet business.

[ 36 ] I am not satisfied that the evidence contained in the ROC would justify committal for trial in Canada on a charge of obstruct justice had the actions complained of occurred in Canada.

UNAUTHORIZED POSSESSION OF A FIREARM

[ 37 ] The facts in the ROC supporting the charge of Unauthorized Possession of a Firearm come from the testimony of the co-conspirator Lee who is expected to testify that several months prior to the arson, knowing that Lee was a convicted felon, Aneja gave Lee a pistol while Lee was at the Sofa Outlet premises and told Lee to “do something with it”. Subsequently Lee was arrested with the firearm in his possession.

[ 38 ] Section 91(1) of the Criminal Code reads as follows:

“91(1) Subject to subsections (4) and (5), every person commits an offence who possesses a firearm without being the holder of

(a) a license under which the person may possess it; and

(b) a registration certificate for the firearm”

[ 39 ] Under section 117.11 of the Criminal Code , the onus rests on Aneja to demonstrate that he is the holder of a license or registration certificate.

[ 40 ] Special Agent Henderson is expected to testify that the pistol Aneja gave to Lee was a barreled, fully operational weapon from which a bullet or projectile may be discharged and is capable of causing serious bodily injury or death. I find that the facts set out in the ROC establish that Aneja had a pistol in his possession prior to giving it to Lee and that this pistol met the description of a firearm as defined in the Criminal Code .

[ 41 ] I find therefore that there is some evidence admissible under the Extradition Act that would justify committal for trial in Canada had the offence set out in the Authorization to Proceed been committed in Canada.

[ 42 ] Subsections (4) and (5) referred to in subsection (1) provide exceptions whereby a person does not commit an offence under subsection (1) on possessing a firearm under circumstances set out in subsections (4) and (5). There are no facts before me from which I may conclude that the circumstances giving rise to the exceptions under subsections (4) and (5) apply with respect to Aneja’s possession of the pistol referred to above.

[ 43 ] Counsel for Aneja argues that the onus is on the Crown to prove that the exceptions set out in subsections (4) and (5) do not apply with respect to Aneja’s possession of the firearm before he may be convicted of an offence under subsection (1). With respect, I disagree. I find that the exceptions in these subsections allow an accused to raise a defence should the circumstances set out in subsections (4) and (5) apply. The onus is on an accused to prove that the circumstances giving rise to the exceptions to subsection (1) apply to his or her possession of the firearm so as to be able to rely on exceptions in these subsections as a defence to a charge under subsection (1).

[ 44 ] In the result, I order that Jay Aneja be committed into custody, pursuant to Section 29 of the Extradition Act , to await surrender for the following offences as I am satisfied that there is some evidence available for trial and not manifestly unreliable on every essential element of the parallel Canadian crime upon which a jury properly instructed could convict:

• Arson for fraudulent purpose contrary to Section 435 of the Criminal Code ;

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

[ 45 ] I find that the facts contained in the ROC do not support a committal for fraud contrary to Section 380 of the Criminal Code but that such facts do support a committal with respect to the offence of attempted fraud and accordingly, I order that Jay Aneja be committed into custody pursuant to section 29 of the Extradition Act to await surrender with respect to the charge of attempted fraud.

[ 46 ] I find that the facts before this court do not support a committal with respect to the offence of obstructing justice and there will be no order with respect to that charge.

LOFCHIK J.

Released: July 10, 2012

COURT FILE NO.: 10-18271
DATE: 2012/07/10

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. TRL:km

Released: July 10, 2012