COURT FILE NO.: Ex164/10
DATE: 20120910
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 29 OF THE EXTRADITION ACT FOR AN ORDER FOR THE COMMITTAL OF LIANG HE a.k.a. TAKAYUKI HARADA TO AWAIT SURRENDER TO JAPAN
BETWEEN:
The Attorney General of Canada on Behalf of Japan
Applicant
– and –
Liang He a.k.a. Takayuki Harada
Respondent
Elaine Krivel, Q.C./Roy Lee, for the Applicant
Robin Parker/Peter Zaduk, for the Respondent
HEARD: June 16, 2011, July 4, 5, 23, 2012
REASONS FOR JUDGMENT
R. Clark J.
INTRODUCTION
[1] On July 30, 1995, a robbery took place in a supermarket in Tokyo, Japan, in the course of which three persons were shot to death. Those crimes remain unsolved, but, as I will explain below, it is the recent efforts of the Tokyo Police to clear the case that have given rise to the proceedings before this court. That said, the applicant, the Attorney General of Canada (“AG”), acting on behalf of Japan, applies to have the respondent, He Liang, committed for extradition to Japan so that he may be prosecuted, not for the above mentioned robbery/murders, but, rather, for an offence arising from his alleged use, in 2002, of an improperly issued Japanese passport. Several ancillary applications have also arisen. What follows are my reasons for decision respecting all the aforementioned applications.[^1]
ACCREDITED INTERPRETER / DELAY OF PROCEEDINGS
[2] To begin, the respondent was arrested in 2010 on a provisional warrant in respect of the passport offence; he was released on bail shortly thereafter and the committal hearing was scheduled for June 16, 2011.
[3] The respondent was born in Fujian Province, in the People’s Republic of China (“PRC”), and his principal language is Fuqing, a relatively rare Chinese dialect. Although apparently content to have his bail hearing interpreted into the Mandarin language, the respondent insisted on having the committal proceedings interpreted into Fuqing.
[4] When the matter was first before me on June 16, 2011, because the proposed interpreter, Ms. Miki Wu, was not accredited by the Ministry of the Attorney General for Ontario (“MAG”), I conducted a voir dire. For reasons delivered orally that day, I determined, over the objection of respondent’s counsel, that Ms. Wu was competent to interpret the proceedings. I do not propose to reiterate those reasons in detail. Suffice it to say, while there is no constitutional right to an accredited interpreter, there is a right to a competent interpreter: R. v. Sidhu, 2005 CanLII 42491 (ON SC), [2005] O.J. No. 4881 (S.C.J.), 203 C.C.C. (3d) 17. That said, “[c]ompetence and accreditation are not co-extensive”: R. v. Ryback, 2008 ONCA 354, 90 O.R. (3d) 81, at para. 84; leave denied, [2008] S.C.C.A. 311. In R. v. Tran, (1992), 1994 CanLII 56 (SCC), 92 C.C.C. (3d) 218 (S.C.C.), [1994] 2 S.C.R. 951, at paragraph 55, the court held that “[w]hile the standard of interpretation is to be high it is not one of perfection…” The standard includes, but is not limited to, “continuity, precision, impartiality, competency, and contemporaneousness." Based on the evidence on the voir dire, I was satisfied that Ms. Wu met that standard and, thus, was competent to interpret the proceedings.
[5] When the matter was not completed on June 16, 2011, I adjourned it to a date in September 2011. The return date was set later than it would otherwise have been because the interpreter was not available earlier. When Ms. Wu did not appear on the September date, the matter had to be further adjourned. Likewise, on various later occasions, the matter could not proceed for want of an interpreter.
[6] Over the course of the time the matter has been before the court, Mr. Michael MacLean, Manager of the Criminal and Jury Office in this courthouse, has made considerable efforts to secure an accredited interpreter. However, despite his having made inquiries as far away as Vancouver and New York, I am advised that Mr. MacLean has been unable to secure the services of a Fuqing interpreter accredited by MAG.
[7] When the matter came back before me for hearing, on July 5, 2012, once again Ms. Wu was the proposed interpreter. She was still not accredited. As more than one year had elapsed since the matter of interpretation was last addressed, I invited the parties to make any further submissions they might have respecting the suitability of the interpreter; neither side had anything to add to its earlier position. There being no change in counsel’s position and, to my knowledge, no change respecting the unavailability of an accredited interpreter, I proceeded with the matter utilizing the services of Ms. Wu. Throughout two full days of argument, no complaint arose concerning her competence.
THE APPLICATIONS
(i) AG’s application to extradite
[8] The foundational application in this matter is, of course, the AG’s application to have the respondent committed for extradition.
(ii) Respondent’s cross-application to stay proceedings as an abuse of process
[9] In response to the AG’s application, the respondent cross-applies to have this court stay that application as an abuse of process.
(iii) Respondent’s supplemental application for disclosure
[10] The respondent also seeks, by way of a supplemental application, further disclosure of materials he contends will better support his cross-application for a stay.
(iv) Respondent’s application to exclude evidence
[11] In the alternative, if the court is not inclined to stay the proceedings as an abuse of process, the respondent applies to have the court exclude certain evidence upon which the AG seeks to rely in its principal application.
(v) AG’s application to summarily dismiss the respondent’s applications
[12] The AG seeks, by way of a supplemental application, to have this court summarily dismiss the respondent’s cross-applications for the reason that none of the motions can succeed in law.
THE FACTS
[13] To put the following discussion in context, the following overview of the facts is required.
[14] According to the AG’s allegations, from some point in the 1990s until 2002, the respondent, a Chinese national, lived in Japan. He is said to have resided first in Yokohama, then Tokyo and, lastly, Nagoya.[^2]
[15] On February 19, 1994, the respondent was found guilty in Yokohama District Court of an immigration offence and sentenced to “one year in prison with 3 year suspension.”[^3] Two months later, on April 22, 1994, the respondent was deported from Japan.[^4] Fingerprint impressions acquired by the Japanese police in the course of processing the respondent in 1994 were compared to fingerprint impressions acquired by the Toronto Police when the respondent was arrested on the provisional warrant. That comparison is relied upon by the AG for its assertion that the respondent is the same person who was arrested in 1994. The respondent does not dispute the validity of that comparison.[^5]
[16] Sometime after he was deported in 1994, the respondent returned to Japan. Neither the precise time of his return nor the means he used is evident in the materials before me.
[17] During part of the time the respondent was in Japan after 1994, the respondent belonged to a criminal gang that was committing burglaries and robberies in and around Nagoya. Another member of that gang was one Teruo Tekada, a Japanese national. Round about April 2002, having become aware that the police suspected them of criminal wrongdoing, both Tekada and the respondent decided to flee to China.
[18] In order to be able to flee, it was necessary for the respondent to acquire a passport. Although issued by the passport office in Nagoya, the passport the respondent allegedly used was a fake in that it bore the respondent’s photograph, but the name “Takayuki Harada” and biographical information pertaining to a person of that name. Police discovered that the real Takayuki Harada had, for some time, been Tekada’s chauffeur. According to what Harada later told the police, in early 2002 Tekada used a pretext to cause him to believe that he needed a passport. At Tekada’s urging, Harada filled out a passport application Tekada supplied and returned the completed form to Tekada for submission to the Passport Office, but never received a passport.
[19] In early 2002, the Nagoya Police became aware of the impending flight of the respondent and Tekada and made efforts to prevent their departure, but were unsuccessful.
[20] According to Japanese records, on April 23, 2002, the respondent and Tekada departed Nagoya Airport on a commercial flight bound for Hong Kong. They were accompanied by the respondent’s girlfriend, a Chinese national, known to the authorities only by her nickname, “Dan Dan”. She is said to have used a forged Japanese passport bearing the name, Yumiko Komori. According to Chinese records, once in Hong Kong the three then proceeded onward to mainland China.
[21] Having learned that the respondent, Dan Dan, and Tekada had left Japan, the police then sought warrants for their arrest. A warrant for the arrest of the respondent was issued on April 28, 2002.[^6] On a date in June, and again on September 20, 2002, the police sought renewal of those warrants.
[22] In June 2002, the Nagoya Police Department requested the assistance of Interpol Hong Kong in locating the fugitives and made further such requests in February and March, 2003.[^7] The National Police Agency of Japan, on behalf of the Nagoya Police, also contacted both Interpol and the PRC to enlist their cooperation to apprehend the fugitives.[^8]
[23] Once in China, the respondent was involved with Tekada in the sale of illegal drugs.[^9] On or about June 18, 2004, Tekada was arrested in Dalian, a seaport in northeast China, for smuggling and trafficking amphetamines. He was tried, sentenced to death and, ultimately, executed.
[24] Upon learning of Tekada’s arrest, the respondent made efforts to flee China. According to a witness interviewed by Japanese police, one Yoshiyasu Watanabe, it was not until August of 2004 that the respondent could arrange to leave the PRC.[^10] The respondent came to Canada, where he claimed refugee status. According to his counsel, the respondent’s refugee claim was successful and he has since become a Canadian citizen.[^11]
[25] In 2009, in the course of investigating the still unsolved 1995 murders, Tokyo investigators came to believe that Tekada, then awaiting execution in the PRC, might possess information pertaining to those crimes. Members of the Tokyo Police travelled to the PRC and, between September 15 and 18, 2009, were present while Chinese officials interviewed Tekada on their behalf. Tekada indicated that he knew nothing of the 1995 incident, but went on to say that, while he did not think the respondent was responsible, the respondent might have information concerning the incident. Tekada also provided information concerning the respondent’s use of the forged passport.
[26] In October 2009, armed with Tekada’s information, the Tokyo Police then made inquiries of Canadian officials as to the possibility of extraditing the respondent to Japan to be prosecuted for the alleged passport offence. As the following passage from the materials[^12] makes plain, however, another reason they sought the respondent’s return to Japan was to question him concerning the Tokyo homicides:
We, the Tokyo Police Department, believed that it was extremely important to interrogate He Liang to solve this high-profile unsolved murder case in Hachioji. Through the International Investigative Operations Division, Organized Crime Department, Criminal Investigation Bureau, National Police Agency of Japan, we asked the Canadian authorities whether they could place He Liang on a provisional arrest or extradite him into Japan, in the event we brought the case of Passport Act violation against him. (On October 22, 2009, (Eastern Standard Time in Canada) the first meeting was held at the International Assistance Group, Criminal Law Section, Department of Justice. Tomiko SANO, first Secretary of Japanese Embassy in Ottawa, Akihiro TOHI, Second Secretary of Japanese Embassy in Ottawa, and an IAG Counsel in charge of this case attended the meeting.
[Reply from the Department of Justice]
In response to our inquiry, the Canadian Ministry of Justice replied that it was possible to place him on the provisional arrest or extradite him into Japan.
[27] Since the passport offence occurred in Nagoya, and the Nagoya Police had investigated the matter in 2002-03, after receiving assurances that Canada would seek the respondent’s extradition respecting the passport offence, the Tokyo Police initially asked their counterparts in Nagoya to reopen their investigation. However, the Nagoya police indicated that they had “no intention to pursue this Passport Act violation”, saying, “this case is over.”[^13] Upon learning that the Nagoya Police were unwilling to pursue the matter, the Tokyo Police then conducted their own extensive investigation and, in the result, laid a charge against the respondent respecting the alleged passport offence. It is in relation to that offence that Japan now seeks to extradite the respondent.
AG’S APPLICATION TO SUMMARILY DISMISS THE RESPONDENT’S APPLICATIONS
[28] Since, as noted above, the AG sought summary dismissal of the respondent’s cross-applications, I heard that application before the others.
[29] It is clear that a court is not required to conduct a voir dire simply because one of the parties to the proceedings so desires: U.S.A. v. Anekwu, 2009 SCC 41, [2009] 3 S.C.R. 3, at para. 33; R. v. Kutynec (1992), 1992 CanLII 12755 (ON CA), 70 C.C.C. (3d) 289 (Ont. C. A.), 7 O.R. (3d) 277, at para. 12; U.S.A. v. Quinton, 2000 CanLII 22657 (ON SC), [2000] O. J. No. 791 (C.A.), 73 C.R.R. (2d) 237, at para. 43. Relying on those authorities, the AG contends that, as a matter law, the respondent’s applications cannot succeed, such that to entertain them would waste the court’s time and, in turn, amount to an affront to the administration of justice.
[30] The AG makes three arguments in support of its application for summary dismissal:
(i) respecting the respondent’s request for a stay of proceedings as an abuse of process, this court has no jurisdiction to inquire into the purpose for which the requesting state seeks the respondent’s extradition;
(ii) respecting the respondent’s request for further disclosure, the respondent is only entitled to such disclosure as is contained in the Record of the Case, which disclosure the respondent already has; and
(iii) respecting the respondent’s attempt to have the court exclude certain evidence, inasmuch as the evidence in question was not gathered in Canada, the Charter considerations upon which the respondent seeks to rely have no application to this court’s task, which is simply to determine whether there is evidence that would support the charge.
[31] For reasons that I will develop below, it was not apparent to me that, as a matter of law, the respondent’s motions were doomed to fail, such that I ought to summarily dismiss them. Accordingly, on July 5, 2012, in a brief oral pronouncement, I dismissed the AG’s application for summary dismissal, indicating that I would give reasons as soon as time permitted; these are those reasons.
RESPONDENT’S SUPPLEMENTAL APPLICATION FOR DISCLOSURE
[32] As noted above, the respondent seeks, by way of a supplemental application, further disclosure of memoranda, aides memoire and other like materials, which he contends the AG must in all likelihood possess, documenting its dealings with Japanese officials in this matter. Counsel argues that these materials will better enable the respondent to make out his complaint that Japan’s primary purpose in seeking to extradite him is not to prosecute him for the passport offence, but, rather, to interrogate him respecting the Tokyo murders. For reasons I will develop when I come to discuss the respondent’s application to stay the AG’s application as an abuse of process, on the basis of the material already before me, I am prepared to assume that Japan would not be seeking to extradite the respondent for the 2002 passport offence but for the fact that the Tokyo Police wish to question him in connection with the 1995 incident. Thus, the issue of further disclosure is effectively moot.
RESPONDENT’S CROSS-APPLICATION TO STAY PROCEEDINGS AS AN ABUSE OF PROCESS
[33] I move now to consider the respondent’s abuse of process application.
Position of the Respondent
[34] The respondent asserts that the AG’s application amounts to an abuse of the court’s process because the requesting state has an oblique motive. The real purpose of the extradition, as plainly stated in the materials, is to facilitate his interrogation by the Tokyo Police in relation to the 1995 murders; as such, the respondent contends, the prosecution of the passport offence is nothing more than a ruse directed toward accomplishing that end.
Position of the Applicant
[35] In response, relying principally on Germany v. Schreiber, [2000] O. J. No. 2618 (S.C.J.), the AG argues that this court lacks the jurisdiction to look behind the request, or to inquire into or judge the motive of the requesting state in seeking extradition. In the alternative, the AG argues, even if the respondent is correct that Japan is only pursuing the passport offence to further the murder inquiry, there is nothing offensive about the investigators simultaneously pursuing dual purposes.
Discussion
[36] It is clear that an extradition judge is empowered to prevent abuse of the court’s process. In U.S.A. v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, at paragraph 33, speaking for the court, Arbour J. stated:
Conduct by the Requesting State, or by its representatives, agents or officials, which interferes or attempts to interfere with the conduct of judicial proceedings in Canada is a matter that directly concerns the extradition judge.
[37] At paragraph 37, Arbour J. went on to adopt the following passage from R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657, at pp. 658-59:
Canadian courts have an inherent and residual discretion at common law to control their own process and prevent its abuse. The remedy fashioned by the courts in the case of an abuse of process, and the circumstances when recourse to it is appropriate were described by this Court in R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657, at pp. 658-59:
The availability of a stay of proceedings to remedy an abuse of process was confirmed by this Court in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128. On that occasion the Court stated that the test for abuse of process was that initially formulated by the Ontario Court of Appeal in R. v. Young (1984), 1984 CanLII 2145 (ON CA), 40 C.R. (3d) 289. A stay should be granted where "compelling an accused to stand trial [page605] would violate those fundamental principles of justice which underlie the community's sense of fair play and decency", or where the proceedings are "oppressive or vexatious" ([1985] 2 S.C.R. [128], at pp. 136-37). The Court in Jewitt also adopted "the caveat added by the Court in Young that this is a power which can be exercised only in the ‘clearest of cases’" (p. 137).
[38] On the one hand, I appreciate that an extradition judge has a Charter jurisdiction as well as certain powers at common law to protect the court’s process. On the other hand, those powers only arise in the narrow scope of an extradition judge’s function to ensure that the committal hearing itself conforms to fundamental principles of justice: Cobb, at paras. 26 and 39. Unfairness that does not impinge on the integrity of the hearing itself is a matter for the Minister to consider. It is clear, however, that, in some circumstances, the conduct of the parties outside the scope of the actual extradition hearing may impact upon the fairness of that hearing. As stated in Cobb, at paragraph 42:
The s. 7 issue before the extradition judge is whether the extrajudicial conduct and pronouncements of a party to the proceedings, or of those associated with that party, disentitle that party from the judicial assistance that it is seeking and whether it would violate the principles of fundamental justice to commit the fugitives for surrender to the Requesting State.
[39] Notwithstanding that Japanese authorities insist they will prosecute the passport offence, respondent’s counsel contends that the proposed prosecution is a sham and, that being so, the AG’s application amounts to an abuse of process. In making this assertion, Ms. Parker relies heavily on U.S.A. v. Tollman (2006), 2006 CanLII 31732 (ON SC), 212 C.C.C. (3d) 511 (Ont. S.C.J.), where Molloy J. stayed an extradition proceeding because of an effort on the part of the requesting state to cause Canadian authorities to misuse the Immigration and Refugee Protection Act (“IRPA”) to accomplish a goal only properly achieved by resort to the Extradition Act. Even when the applicant in that case finally resorted to the Extradition Act, as it should have done in the first place, Molloy J. found that it did not behave in an open and forthright manner with the court.
[40] Counsel for the respondent emphasizes that there is no legitimate means by which the requesting state could compel the respondent to go to Japan to be interviewed respecting the 1995 offences. When faced with that reality, the Tokyo Police, knowing that the respondent had left Japan years before by using a passport issued to him in a false name, decided to pursue that charge as a means by which to have the respondent returned to Japan for their ulterior purpose. This amounts to an abuse, counsel contends.
[41] What the AG should have done, on Japan’s behalf, according to Ms. Parker, was to seek ministerial permission for Japanese investigators to interview the respondent in Canada.[^14] By failing to do so, Japan has put itself in a position analogous to the position of the requesting state in Tollman. Here, so the argument goes, the AG, on behalf of Japan, seeks to use the Extradition Act to avoid recourse to the Mutual Legal Assistance in Criminal Matters Act.
[42] In my view, however, Tollman is distinguishable from the case at bar for several reasons.
[43] First, I disagree with the analogy counsel seeks to draw with Tollman in terms of preferring to use one statute to avoid having to resort to another.
[44] In Tollman, the only objective of the American authorities was to get the respondent to the United States for purposes of prosecution by the most expedient means possible, even where resort to that method meant denying the person sought a panoply of rights he would have enjoyed had the requesting state attempted to accomplish its goal properly, namely, by resort to the Extradition Act. There was never any other goal than to remove Tollman to the United States for the purpose of prosecution and the effort by the United States to have the Canadian government use the IRPA to accomplish that end was a transparent attempt to subvert the intent of the Extradition Act. As such, Molloy J. found that it amounted to an abuse of the court’s process. In this case, in contrast, by applying under the Extradition Act in the first place and by making no secret of their other purpose, the Japanese authorities obviously recognize that they are bound to comply with Canadian extradition law. Further, they appear to recognize that there are limitations to what can and cannot be done with a person once extradited.[^15]
[45] Second, in Tollman, although there had been an indictment in existence for some time in the United States and the relevant authorities knew the person sought was in the United Kingdom, they had never made any effort to cause Tollman to be returned to the United States. Only when American authorities learned that Tollman was scheduled to stop over in nearby Toronto did they then solicit Canadian Border Services to refuse to admit Tollman and, in turn, deport him to Buffalo, New York, presumably because it was convenient to do so. In the case at bar, on the other hand, immediately after the passport offence took place, the authorities initiated a concerted effort to apprehend the respondent and have him returned to Japan for prosecution.[^16]
[46] Third, the initial effort in Tollman was covert and surreptitious. In this case, on the other hand, the requesting state has been entirely open and forthright, both with the International Assistance Group and, in turn, with the court, about both the existence and the importance of its investigative purpose.
[47] Fourth, the object in Tollman was to prosecute the person sought. In that behalf, relying on Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121, and R. v. Brixton Prison (Governor), Ex Parte Soblen, [1962] 3 All ER 641 (C.A.), Molloy J. held that “[i]t is an abuse of process to exercise a statutory power for a reason that is unrelated to the purpose for which that power was granted.” She went on to say, “[m]ore specifically, it is an improper use of the IRPA power to remove a foreign national to another country for the purpose of enabling that foreign state to prosecute him or her for offences allegedly committed there.”
[48] While I agree with the statements of Molloy J. in Tollman,[^17] the respondent’s reliance on those authorities is misplaced, because here the requesting state does not seek to use another statute for the purpose of extradition and, in turn, prosecution. On the contrary, the requesting state seeks to use the Extradition Act to extradite and, in turn, to prosecute the respondent for the offence named in the provisional warrant. In terms of the requesting state’s further investigative purpose of which the respondent complains, the Japanese authorities seek only to question the respondent in respect of the 1995 Tokyo incident. No prosecution is intended in relation to the Tokyo crimes and, even if it were to turn out otherwise, presumably the law of speciality would protect the respondent from any legal jeopardy in relation to them.[^18] Moreover, in relation to the wish of Japanese authorities to question the respondent respecting the Tokyo crimes, there is nothing before this court to suggest that the respondent must cooperate with the authorities in that behalf. It seems to me that the respondent can, if he sees fit, simply stand mute in relation to such inquiries as the authorities may choose to make of him.
[49] The question becomes, then, does the fact that, in addition to the prosecutorial purpose for which they seek a person’s extradition, the authorities of the requesting state have a second, investigative purpose invalidate the extradition request and thereby constitute an abuse of the court’s process? The issue of dual purposes was discussed in R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851. While that case dealt with a domestic criminal matter, it is, nevertheless, instructive in answering this question.
[50] In Nolet, a police officer stopped a transport truck in the exercise of his authority pursuant to certain provincial statutes respecting vehicle licencing and safety standards. While acting under that authority, the officer became suspicious that the truck contained contraband. He carried on with his search and ultimately found drugs. The initial stop was held, both at trial and on appeal, to be a legitimate exercise of the officer’s authority under the provincial legislation. The trial judge, however, found that the officer’s ulterior, and predominant, purpose was to search for contraband and disallowed the evidence resulting from the officer’s subsequent search of the truck.
[51] At paragraph 33, Binnie J., speaking for the Court stated:
The officer made no secret at trial of his interest in finding contraband. It was part of his job to take an interest in contraband. In the nature of things, contraband is a bigger issue for police than trucking documents. However, he testified that it was only "at that point" of finding the money that he believed "there was a good possibility there was a secret compartment in the trailer" (A.R., vol. 2, at p. 204).
[52] Binnie J. noted that there had been a discussion at trial of ‘"dual purpose" searches, and whether a "dominant" criminal law purpose would invalidate an otherwise valid regulatory search or, on the contrary, a legitimate regulatory purpose could "sanitize" or "cleanse" an unlawful criminal law purpose...’ He then went on, at paragraph 36, to adopt the following passage expressed by Wilkinson J.A., for the majority in the Court of Appeal:[^19]
[T]he lawful aim cannot be used as a pretext, ruse, or subterfuge to perpetuate the unlawful aim. That, ultimately, is the focal point of the inquiry. It is not a question of degree, or determining which purpose is predominant or subordinate. Rather, it is a question whether a lawful purpose is being exploited to achieve an impermissible aim.
[53] Binnie J. also relied on R. v. Annett (1984), 1985 CanLII 3654 (SCC), 17 C.C.C. (3d) 332 (Ont. C.A.), at p. 335; leave to appeal refused, [1985] 1 S.C.R. v; [1985] S.C.C.A. 222, in which, although they suspected that they might find drugs, officers searched a car acting under the authority of the Liquor Licence Act.[^20] In that case, Martin J.A. held "[t]he lawful search was not converted into an unlawful or an unreasonable search because the officers, in addition, had the expectation that the search might also uncover drugs."
[54] Turning to this case, as Wilkinson J.A. observed in Nolet, “[t]ransposing principles from one context to another can present difficulties.” Having said that, the discussion in Nolet is useful in framing the issue of whether the investigative purpose of the Japanese police invalidates their prosecutorial purpose.
[55] By their own admission, it was only to effect their purpose of interviewing the respondent in respect of the murders, unattainable in itself, at least not by means of the Extradition Act, that the Tokyo Police took up their pursuit of an investigation the Nagoya Police had begun, but, as of 2010, were no longer interested in pursuing. Respondent’s counsel argues that the fact that the Nagoya Police declined to pursue the investigation just underscores the fact that the prosecution is only a ruse by means of which the Tokyo Police seek to accomplish an ulterior goal.
[56] On the other hand, there is clear evidence a passport crime has been committed. Indeed, the respondent concedes that a prima facie case is made out. More importantly, in my opinion, there is clear evidence that, long before the investigative purpose came into existence, there was a bona fide intention to apprehend and prosecute the respondent for the passport crime; further, the evidence shows that serious efforts were made toward accomplishing that end. Accordingly, I cannot agree that the current intention to prosecute is a sham. As for the respondent’s point that the Nagoya Police declined to pursue the matter, absent some evidence as to any geographical limitations on police jurisdiction in Japan, I do not see this as important. Rather, the salient fact is that a bona fide intention to prosecute preceded the existence of the investigative purpose.
[57] Counsel for the respondent argues that the investigative purpose of interviewing the respondent is improper because Japanese authorities would have no legitimate means by which to have the respondent taken back to Japan for that purpose, standing alone. While that is certainly true, in my opinion it is not dispositive. Presumably, just as would be the case in Canada, I suspect that police in Japan are entitled to question a suspect in custody about matters other than the matter for which the person is actually under arrest. Therefore, the questioning about a matter under investigation is not improper per se. Rather, it seems to me, it is only improper if the reason for which the person comes to be in police custody is itself bogus.
[58] For the foregoing reasons, I am of the view that the AG’s application does not violate “those fundamental principles of justice which underlie the community's sense of fair play and decency"; nor is it is either "oppressive or vexatious" Keyowski, at pp. 658-59. I conclude, therefore, that the application for committal does not constitute an abuse of process.
[59] If I am wrong in concluding that the AG’s application does not constitute an abuse of process, I am of the view that such abuse as there might be is minimal, such that this is not one of “the clearest of cases”, so as to warrant the remedy sought. I say that for four reasons.
[60] First, as earlier noted, there is evidence, predating the existence of the investigative purpose of which the respondent complains, of both a serious crime and a clear intention to prosecute the alleged offender.
[61] Second, the respondent has the option of saying nothing in response to such inquiries as the police may make of him.
[62] Third, the respondent is protected by the law of speciality against any legal jeopardy that might arise from such further investigations as the Japanese authorities may make concerning the Tokyo incident.
[63] Fourth, if the actions of the requesting state have an abusive aspect to them, I do not see it as impacting, either directly or indirectly, upon the fairness of the committal hearing. If that much is so, then any remedy is a matter for the Minister and not this court.
Result
[64] In the result, the respondent’s cross-application to stay the AG’s application is refused.
RESPONDENT’S APPLICATION TO EXCLUDE EVIDENCE
[65] As earlier noted, as well as indicating that the respondent might have information respecting the murder, Tekada also gave the investigators highly incriminatory information concerning the respondent’s involvement in the passport offence. According to counsel for the AG, although Tekada is now deceased, under Japanese law the information he provided to investigators is nonetheless still available for use against the respondent at trial.
Position of the Respondent
[66] The respondent seeks to have the evidence gathered from Tekada excluded from the AG’s principal application on the basis that, inasmuch as Tekada was under sentence of death at the time he imparted the information to the investigators, it is manifestly unreliable. In the alternative, the respondent argues, the evidence should be excluded because it was gathered in a manner repugnant to Charter values, such that to utilize the evidence would compromise his section 7 right to fundamental justice and, by extension, taint the proceedings of this court.
Position of the Applicant
[67] It is the position of the AG that, inasmuch as the Record of the Case certifies that the evidence is both available and admissible, that ends the jurisdiction of this court to inquire into the matter. In the alternative, the AG contends that there is nothing about the manner in which the evidence was gathered that should offend this court.
Discussion
[68] To begin with the reliability issue, the court has a limited discretion to exclude evidence that is “so defective or appears so unreliable that the judge concludes that it would be dangerous or unsafe to convict, [such that] the case should not go to a jury and is therefore not sufficient to meet the test for committal”: U.S.A. v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77, at para. 54.
[69] The respondent’s argument from unreliability centers on a proposition, well known in domestic criminal trials, that calling an accomplice who is awaiting sentence at the time he gives evidence is a practice to be discouraged. In that behalf, the respondent relies heavily on the dissenting opinion of Cromwell J.A., as he then was, in R. v. Dowe, 2007 NSCA 128, subsequently adopted by the Supreme Court of Canada (2008 SCC 55, [2008] 3 S.C.R. 109), in which he deplored the practice of calling an accomplice who had pleaded guilty, but had not yet been sentenced. Counsel argues that, a fortiori, evidence taken from a condemned man is necessarily so unreliable as to require exclusion. Notwithstanding his condemnation of the practice, I do not understand Mr. Justice Cromwell to say that such evidence is inadmissible per se, but, rather, only that there is very good reason for a trier of fact to be concerned about the unsupported evidence of an accomplice awaiting sentence.
[70] In U.S.A. v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616, where the person sought argued that the extradition judge ought not to rely on evidence forthcoming from co-conspirators who had pleaded guilty, but had not yet been sentenced, at paragraph 56, Arbour J., speaking for the court, held that “the Charter applies only domestically and has no effect extraterritorially, except to Canadian authorities...” and went on to observe, in the next paragraph, that such evidence was “not inadmissible in Canadian law” in any event. Despite what she characterized as the grave danger that such a witness might colour his evidence, at paragraph 58 Arbour J. held that the question was one of weight and not admissibility. Thus, the premise that underlies the analogy counsel would have the court draw is not itself made out.
[71] Several points are worthy of note in considering the respondent’s argument concerning unreliability.
[72] First, notwithstanding a powerful inducement to speak to the authorities, the information forthcoming from Tekada as it relates to the robbery/murders was sparse at best. Tekada did not implicate the respondent in the murders; rather, at the highest, all he said was that he thought the respondent might know who was responsible. He did not even go so far as to say that the respondent’s knowledge was firsthand.
[73] Second, the danger in relying on the evidence of a witness of unsavoury character, or with a motive to lie, is diminished proportionally to the extent that his evidence is confirmed by other evidence considered to be reliable: R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811. That said, much, indeed most, of the information Tekada supplied in relation to the respondent was confirmed by other witnesses interviewed by the Japanese police. Admittedly, many of these confirmatory witnesses were themselves convicted criminals. Given, however, that most of them were serving sentences in different prisons in Japan, it is hard to imagine that they could have colluded in any effective way to give the same account and, even assuming that they could, harder still to imagine why they would. Thus, I am of the view that, in the same way as one would treat the evidence of a witness of unsavoury character in a domestic criminal trial, it is a matter of weight and not admissibility.
[74] The respondent further argues that to admit evidence gathered from Tekada would amount to a breach of the respondent’s rights under s. 7 of the Charter because the evidence was gathered in a manner that was “unfair and offensive to Charter values.”[^21] In Ferras, at paragraph 60, speaking for the court, McLachlin C.J. held that an extradition judge has a discretion to exclude evidence where it was gathered “in such an abusive manner that its admission to the committal hearing would be unfair under s. 7 of the Charter…”
[75] On the one hand, the AG argues that any repugnance of Chinese penal law to Charter values is irrelevant since the requesting state is Japan and not China, but that is no answer to the respondent’s complaint because, while clearly the evidence was gathered according to Chinese law, it was gathered at the behest of, and is intended to be used by, Japan.
[76] On the other hand, relying on U.S.A. v. Burns, 2001 SCC 7, the respondent argues that the death penalty is an anathema to Canadian law, such that it would indelibly taint these proceedings if this court were to rely on evidence gathered from a condemned prisoner. That argument is equally flawed because it conflates the fact that China has the death penalty with the manner in which the evidence in this case was gathered. These are separate issues.
[77] One might disagree with use of the death penalty, but it is not for this court to pass upon the propriety of the laws of a foreign state. That point was made in Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536, at p. 551, where the Court held:
At all events, the assumption by a Canadian court of responsibility for supervising the conduct of the diplomatic and prosecutorial officials of a foreign state strikes me as being in fundamental conflict with the principle of comity on which extradition is based.
To my mind, that statement applies equally to the legislators of foreign states in terms of penal laws they see fit to enact. Any repugnance the fact that Takada was under sentence of death at the time he was interviewed might attract is a matter for the Minister and not this court.
[78] As distinct from considering the propriety of the law that caused Tekada to be on death row, the proper focus here is on the manner in which the evidence upon which the requesting state seeks to rely was actually gathered from Tekada in that situation.
[79] This is not a case like U.S.A. v. Khadr, 2011 ONCA 358, where the person sought for extradition was held incommunicado and tortured for many months. Tekada was interviewed by Chinese officials at the behest of the Japanese police under the auspices of a mutual legal assistance treaty between Japan and the PRC.
[80] There is nothing apparent from either the text of the interview or any other evidence before me to suggest any oppressive or coercive treatment by Chinese officials. There is no suggestion that Tekada was subjected to any physical or emotional mistreatment in terms of (i) deciding whether to cooperate with the police in the first place or (ii) saying what he said at any point during the course of his lengthy interview. To my mind, whatever views one may hold respecting the death penalty, the evidence was not gathered in an abusive manner so as to render the extradition hearing unfair.
[81] In the result, I am of the view that the evidence should not be excluded.
[82] As a final point on this issue, I wish to stress that, even if I were to have excluded Tekada’s evidence, the result of the AG’s principal application would inevitably have been the same for the reason that there is an abundance of other evidence establishing to the required standard of proof that the respondent is the person sought by the requesting state.
AG’S PRINCIPAL APPLICATION
[83] The respondent concedes that the materials reveal evidence sufficient to establish a prima facie case that the alleged misconduct in fact occurred and that it constitutes the crimes stipulated. The respondent contends, however, that the evidence is insufficient to establish on a balance of probabilities the person before the court is the person sought by Japan. I disagree.
[84] The respondent takes issue with the reliability of the evidence of several of the witnesses upon whom the requesting state relies.
[85] In his statement, Takeda indicates that he got a passport for the respondent, that that passport was in the name of his driver, Harada, and, further, that the respondent used that passport to leave Japan.
[86] Quite apart from the aforementioned evidence of Takeda, there is ample other evidence to support the conclusion that the respondent is the person sought by the requesting state. What follows is a brief overview of that evidence.
(i) Anticipated Evidence of Yoshiyasu Watanabe
[87] Yoshiyasu Watanabe was interviewed in Osaka Prison on September 3, 2008, and, latterly, on August 20 and October 5, 2009.
[88] Watanabe indicated that, in April 2003 or thereabouts, he was introduced to three men in a Japanese restaurant in Hangzhou, China. One of them he identified as Tekada. Another he described as “a man from Fujian, China, who [was] around 45 years old and who called himself Takayuki Harada.” Later in his statement, Watanabe indicates that Harada and He Liang are one and the same person.
[89] Watanabe indicated that He Liang told him that Tekada had gotten a passport for him in the name of Takayuki Harada and that he had used the passport to leave Japan in company with Tekada. Watanabe indicated that He Liang had actually shown him the passport and he claims to have seen the photograph in the passport, as well as the name, “Takayuki Harada.” Among the numerous stamps in the passport, Watanabe claims that he saw a Japanese stamp that caused him to believe that He Liang had used the passport to leave Japan.
[90] Watanabe described how, in the summer of 2003, he lived with He Liang for a number of months in an apartment in Dalian, China, during which time he delivered amphetamines from Tekada to He Liang. In the fall of that year, according to Watanabe, he lived with He Liang in a different apartment in a suburb of Beijing.
[91] Watanabe indicated that he lost track of He Liang after they had a falling out, but later got back in touch with him at a time when He Liang was living in Toronto. Watanabe described seeing He Liang on two separate trips to Toronto. Watanabe offered to support his account of seeing He Liang in Toronto by showing the investigators his passport to prove that he had in fact travelled to Toronto. That passport showed stamps showing his arrival at Toronto in April and again in May 2007.
[92] Watanabe described He Liang as 170 centimetres tall, with a round face, a “medium and strong build” and weighing approximately 75 kilograms. Though very general, that aptly describes the respondent. Watanabe indicated that He Liang acted as an interpreter for Tekada and stated that they were always together.
[93] In the August 2009 interview, the interviewer showed Watanabe a passport application bearing the name “Takayuki Harada” and asked him whether he could recognize the attached photograph. Watanabe identified the person depicted in the photograph as the man he knew as He Liang.
[94] I am satisfied that, on the basis of the months they lived together in China and the times he saw the respondent in Toronto, Watanabe was in a position to identify He Liang.[^22] Moreover, the fact that Watanabe saw the person he knew as He Liang in Toronto taken together with the fact that the respondent is a resident of Toronto is some circumstantial evidence supporting the proposition that the respondent is the same man of whom Watanabe spoke.[^23]
[95] Counsel for the respondent acknowledges that as the trier of fact on this hearing, I am entitled to examine the photograph and make my own finding concerning whether the photograph is that of the person before the court: R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197. I have examined the photocopy of the photograph and I am satisfied on a balance of probabilities that it depicts the respondent.
(ii) Anticipated Evidence of Akira Oshita
[96] Akira Oshita, then serving a sentence for robbery, was interviewed in Kanazawa Prison, in central Honshu, on November 5, 2009. Oshita indicated that he knew a Chinese man, named He Liang, who had returned from Japan to China using a false passport bearing the name Takayuki Harada. Oshita indicated that he also knew Tekada and knew that Tekada had secured the passport for the respondent. Attached to Oshita’s statement is a photocopy of a photograph that Oshita identified as being that of the He Liang of whom he was speaking.[^24] I am satisfied that the photograph depicts the respondent.
(iii) Anticipated Evidence of Katsumi Arakawa
[97] Katsumi Arakawa was interviewed by Japanese police at Gifu Prison, near Nagoya, on November 11, 2009. Arakawa indicated that, in the fall of 2001, he met a man that he knew by the name of Ko. Arakawa said that he spent time with Ko, including eating with him a number of times. He said that he and Ko belonged to separate groups, each of which was involved in committing burglaries, and that they frequently exchanged information respecting possible burglary sites.
[98] Arakawa was shown 51 photographs, including two of the respondent and identified one of them as a photograph of the man he knew as Ko. I have examined a photocopy of that photograph and, although the quality is poorer than some of the other photographs, it appears to me to be a photograph of the respondent. [^25]
[99] Arakawa indicated that Ko introduced him to Tekada, approximately six months after he met Ko and only three days before Arakawa said Ko and Tekada left Japan for China in April of 2002. Arakawa said that Ko told him he would be leaving Japan by air from Nagoya Airport.
(iv) Anticipated Evidence of Weng Wu
[100] Weng Wu was interviewed by Japanese police at Yokohama Prison on September 18, 2009.
[101] Weng indicated that he is from Fujian Province and went to the same high school as a man named He Liang. He said that he and He Liang belonged to what he referred to as “a robbery group.”
[102] Weng indicated that He Liang contacted him in Fujian Province round about August 2002. At that time, He Liang told Weng that he had left Japan because he did not feel it was safe to remain because of crimes in which he had been involved.
[103] Weng was shown a passport application with an attached photograph. He identified the photograph as being that of his childhood friend, He Laing. I have examined the photocopy of that photograph and I am satisfied it depicts the respondent.[^26]
(v) Fingerprints
[104] As earlier noted, the AG relies upon the comparison of fingerprint impressions taken from the person He Liang arrested in Japan in 1994 with impressions taken from the respondent by the Toronto Police in 2010 for its assertion that the respondent is the same person who was arrested in 1994.
[105] As earlier noted, the respondent does not challenge that comparison, but argues that, apart from the identity of the name, He Liang, there is no link between the person arrested in 1994 and the person sought by Japan for the 2002 passport offence. Counsel further points out that the Japanese police acknowledge that they have criminal records for at least three other persons with the name He Liang, thereby casting further doubt on the AG’s proposition that the 1994 prints can be used to establish identity. I disagree.
[106] I have compared the photocopy of the photograph taken by the Japanese police in 1994 with the photocopy of the 2002 photograph used on the passport[^27] and, while I cannot say to an absolute certainty that they depict the same person, allowing for the differences in appearance one might expect in photographs taken eight years apart, there is a considerable resemblance.
[107] In addition to having the same name, the person from whom fingerprints were taken in 1994 and the person who committed the passport offence in 2002 both come from Fujian Province and are both roughly the same age.[^28]
[108] Moreover, even if a link between the person arrested in 1994 and the person depicted in the passport photograph taken in 2002 could not be made, it is of no consequence to the AG’s application. The evidence I have already reviewed clearly establishes a link between the person who fled Japan in 2002 using the false passport and the respondent. Whether the respondent is also the same person who was arrested in 1994 really adds little, if anything, to the AG’s case for committal.
Respondent’s Argument Re Unreliability
[109] The respondent argues that aspects of the case relied on by the AG demonstrate an unacceptable level of carelessness on the part of the police. I agree that there are certain aspects of the materials that suggest a degree of carelessness.[^29] That said, I find, on balance, that the materials are well prepared and appear to be reasonably comprehensive.
[110] There are also aspects of the evidence that counsel contends are manifestly unreliable.
[111] For example, respondent’s counsel points to one of Watanabe statements in which he indicates that he wrote to the respondent at an address of “5041 China Town, Toronto” in October 2007 and received confirmation through his brother that the respondent received his letter.[^30] The problem with this assertion, according to the affidavit of Heather Davidson, is that there is no such address in Toronto. The term “China Town” refers to an area of Toronto not a street, thereby making it virtually impossible that the respondent could have received a letter that Watanabe says he sent in October 2007 and, by extension, impossible that he could have received the confirmation he alleges he got.
[112] Inasmuch as both parties agree that there is no street in Toronto named “China Town”, obviously, someone has made a mistake. I do not agree, however, that it necessarily casts doubt on the veracity of the witness, Watanabe. I say that because Superintendant Hara made the same mistake.[^31] Moreover, one has to take into account that there is a wealth of material in the Record of the Case and Supplemental Record of the Case, virtually all of which had to be translated; it is to be expected that there will be some errors.
[113] Ms. Parker also notes certain apparent inconsistencies between the statements of some of the principal witnesses when compared with the statements forthcoming from the police investigators. These differences are, with respect, sufficiently minor that I do not propose to deal with them in any detail. Suffice it to say, I agree with the AG that, insofar as they refer to what the witnesses had earlier imparted to them, the officer’s statements are merely summaries and do not purport to track exactly what the witnesses said in their individual accounts. That said, there are no inconsistencies of any real substance. To the extent that there are some apparent inconsistencies, there is nothing about any particular statement, either in and of itself or when compared to the statement of any other witness, that rises to the level of manifest unreliability so as to warrant the exercise of my discretion to exclude evidence.
[114] As noted above, counsel for the respondent admits that there is a prima facie case of conduct that, were it to occur in Canada, would constitute the offences enumerated. That said, given, further, that I am satisfied on a balance of probabilities that the person before the court is the person sought by the requesting state, in the result, I hereby order that the respondent be committed to await surrender to Japan.
Clark J.
Released: September 10, 2012
COURT FILE NO.: Ex164/10
DATE: 20120910
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 29 OF THE EXTRADITION ACT FOR AN ORDER FOR THE COMMITTAL OF LIANG HE a.k.a. TAKAYUKI HARADA TO AWAIT SURRENDER TO JAPAN
The Attorney General of Canada on Behalf of Japan
Applicant
– and –
Liang He a.k.a. Takayuki Harada
Respondent
REASONS FOR JUDGMENT
Clark J.
Released: September 10, 2012
[^1]: Although the roles of the parties change depending on which application one is considering, for ease of reference I refer throughout to the AG as the applicant and to Mr. He as the respondent.
[^2]: Although the respondent acknowledges that his name is He Liang, he argues that there is insufficient evidence for this court to conclude that he is the same He Liang sought by the requesting state. Indeed, because the respondent admits that the AG can make out a prima facie case concerning the alleged criminality, the identity of the person before the court as the person Japan seeks is sole live issue on the AG’s principal application. Because I am satisfied on a balance of probabilities that the respondent is the person sought, for simplicity’s sake the following narrative refers to the respondent as such.
[^3]: Applicant's Extradition Hearing Record, Tab 39, pp. 347-48, Letter of Reply to Inquiry on Previous Convictions, dated November 16, 2009.
[^4]: Applicant's Extradition Hearing Record, Tab 38, pp. 344-45, Research Results on Records, dated November 6, 2009.
[^5]: Although he does not dispute the validity of the comparison of his fingerprints acquired by Toronto Police in 2010 with those acquired by Japanese authorities in 1994, the respondent vigorously disputes the proposition that the comparison proves that he is the same person as the Japanese police sought to arrest in 2002.
[^6]: Applicant’s Extradition Hearing Record, Tab 50. See also Tabs 44 to 49 inclusive for further details concerning various extensions of the arrest warrants.
[^7]: Applicant’s Extradition Hearing Record, Tab 28, p. 300-51.
[^8]: Applicant's Extradition Hearing Record, Tab 27, p. 293-95.
[^9]: Applicant's Extradition Hearing Record, Tab 9, p. 110, Translated Statement of Yoshiyasu Watanabe, dated September 3, 2008.
[^10]: Applicant's Extradition Hearing Record, Tab 29, p. 312, Statement of Tokyo Police Superintendant Yuichi Hara, dated October 22, 2009.
[^11]: Although it is a matter of no consequence vis a vis the outcome of these applications, the only evidence before me indicates that, as opposed to being a Canadian citizen, as his counsel contends, the respondent has permanent resident status in this country.
[^12]: Applicant's Extradition Hearing Record, Tab 2, p. 31, Statement of Tokyo Police Superintendant Yuichi Hara, dated November 18, 2009.
[^13]: Applicant's Extradition Hearing Record, Tab 2, p. 32, Statement of Tokyo Police Superintendant Yuichi Hara, dated November 18, 2009.
[^14]: Mutual Legal Assistance in Criminal Matters Act R. S.C. 1985, c. 30, as amended. I was advised by counsel during oral argument that there is no treaty extant between Canada and Japan in this regard. That notwithstanding, pursuant to ss. 6 (1) of the Act, the Minister of Foreign Affairs, with the concurrence of the Minister of Justice, is empowered to enter into an administrative arrangement with a foreign state, with which Canada does not have a treaty in this behalf, to provide the investigative authorities of that state the opportunity to pursue a criminal investigation in Canada.
[^15]: Applicant's Extradition Hearing Record, Tab 29, p. 311, Report of Police Superintendant Yuichi Hara. In this report, in which the author details an inquiry to Interpol in Ottawa concerning the possibility of having the respondent extradited from Canada, the officer also indicates that he inquired “[i]f extradition is possible, whether there is any limitation or condition attached to it.”
[^16]: As noted earlier, the Nagoya Police secured a warrant for the arrest of the respondent, renewed that warrant several times, and sought the assistance of the Japanese National Police as well as international assistance to locate the respondent, whose whereabouts were at that time unknown. I suspect that the fact that the respondent had earlier been convicted and imprisoned for an immigration offence would have added, in some measure at least, to the seriousness with which the Nagoya Police apparently viewed the passport offence.
[^17]: Although Tollman was not appealed, it was cited with approval in U.S.A. v. Khadr, 2011 ONCA 358.
[^18]: The principle of speciality is considered a customary rule of international law: R. v. Parisien, 1988 CanLII 85 (SCC), [1988] 1 S.C.R. 950 at para. 13. Respecting Ms. Parker’s concern, as expressed in oral argument, that speciality is not always observed, it is certainly open to the respondent to ask the Minister “to limit surrender to the conduct described in the Record of the Case, and to seek assurances from the requesting state that it would prosecute only for conduct described in the surrender order”: U.S. A. v. Ranga, 2012 BCCA 82.
[^19]: 2009 SKCA 8, [2009] S.J. No. 40 (C.A.), at para. 81.
[^20]: R.S.O. 1980, Chap. 224.
[^21]: Respondent’s Factum, para. 50.
[^22]: Watanabe gave a further statement on September 3, 2009.
[^23]: Applicant's Extradition Hearing Record, Tab 8, pp. 108, Statement of Yosiyasu Watanabe, August 20, 2009, contains a photocopy of the photograph attached to Watanabe’s statement. The photograph purports to be signed by Watanabe and it bears a fingerprint impression said to be Watanabe’s.
[^24]: Applicant's Extradition Hearing Record, Tab 13, p. 181, Statement of Akira Oshita.
[^25]: Applicant's Extradition Hearing Record, Tab 14, p. 192, Statement of Katsumi Arakawa.
[^26]: Applicant's Extradition Hearing Record, Tab 16, p. 211, Statement of Weng Wu.
[^27]: Applicant's Extradition Hearing Record, Tab 25, p. 265, Statement of Assistant Police Inspector Takashi Mizunashi.
[^28]: The birth date of the He Liang to whom the 1994 fingerprints are attributed is October 24, 1970 whereas the birth date on the forged Harada passport is January 5, 1970. See Applicant's Extradition Hearing Record, pp. 300 - 01.
[^29]: For example, the vast bulk of the material in the Applicant's Extradition Hearing Record suggests that Tekada and the respondent left Japan on April 23, 2002, and did not return. However, at Tab 29, pp. 293-94, “Report of Police Superintendant Yuichi Hara”, dated October 31, 2009, the author refers to information to the effect that as late as September 29, 2002, Takeda was in Japan and participated in a home invasion style robbery. Further, the report states that Takeda left Japan for Hong Kong on November 23, 2002, supposedly in the company of “a Chinese man who held a passport in the name of Takayuki Harada.” While it is possible that either the respondent and/or Tekada could have returned to Japan after leaving in April 2002, it is, in the least, confusing and, arguably, inconsistent with the rest of the materials.
[^30]: Applicant's Extradition Hearing Record, Tab 10, pp. 138-39, Statement of Yosiyasu Watanabe, October 5, 2009.
[^31]: See the Applicant's Extradition Hearing Record, Tab 29, p. 312, a report written by Police Superintendant Yuichi Hara, dated October 22, 2009, in which the author states that the respondent possesses a driver’s licence from the “State of Ontario” and that “[h]is address on the licence is China Town in Toronto.” [Emphasis added.] See also Tab 30, p. 314, entitled “Report on the Suspension of the Statute of Limitations”, where the same author describes the suspect’s present address as “China Town, Toronto, Canada.” The mistake may originate with information forthcoming from Interpol Ottawa. See Tab 2, p. 23, entitled “Comprehensive Summary of Investigation”, where Hara details that “[i]n response to our inquiry on his whereabouts, the Interpol Canada ...based on his domestic driver’s licence, he resides at China Town in Toronto.” For a further demonstration that such mistakes are easily made, see the Davidson affidavit (filed in support of the respondent’s argument that the police were careless in assembling the material upon which they ask this court to rely) where the author transposes the numbers in the address to which Watanabe said he mailed his letter from 5041 to 5401.