ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: E 78/11

DATE: 20120213

BETWEEN:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNTIED STATES OF AMERICA – and – PARAMIJT SINGH a.k.a. PARAMJAT SINGH a.k.a. DEVINDER SINGH a.k.a. PUMMA Respondent

Nancy Dennison , for the Crown

Joseph L. Bloomenfeld , for the Respondent

HEARD: January 26, 2012

L. A. Pattillo J. :

Introduction

[ 1 ] The Applicant, the Attorney General of Canada on behalf of the United States of America seeks extradition of the Respondent Paramjit Singh for prosecution of drug offences in the United States.

[ 2 ] The United States alleges that the Respondent was part of a drug trafficking operation that operated from early 2006 to 2008 and engaged in transporting an average of 500 kilograms a month of cocaine from the Los Angeles area of California to Canada utilizing long-haul truck drivers.

The Extradition Act

[ 3 ] The extradition of a person from Canada is governed by the Extradition Act , S.C. 1999, c.18, as amended (the “Act”). Upon receipt of a request for extradition, the Minister of Justice must first issue an authority to proceed in accordance with s. 15 of the Act authorizing the Attorney General to seek on behalf of the extradition partner, an order of a court for the committal of the person to be extradited under s. 29. A judge must then examine the request for extradition and its supporting material to determine whether the person to be extradited should be committed.

[ 4 ] The test for committal for extradition under s. 29(1) (a) of the Act is twofold: the extradition judge must be satisfied that there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict had the offence occurred here; and that on a balance of probabilities the person before the court is the subject of the extradition request: United States of America v. Sheppard , 1976 8 (SCC) , [1977] 2 S.C.R. 1067 (S.C.C.); United States of America v. Ferras ; United States of America v. Latty , 2006 SCC 33 () , [2006] 2 S.C.R. 77 (S.C.C.); Republic of the Philippines v. Pacificador (1993), 1993 3381 (ON CA) , 83 C.C.C. (3d) 210 (Ont. C.A.).

[ 5 ] The evidence admissible on an extradition hearing is set out in s. 32 of the Act and includes a record of the case (“ROC”). Section 33 provides that the ROC must contain a summary of the evidence available to the extradition partner for use in the prosecution of the person sought and must be certified by a judicial or prosecuting authority of the extradition partner that the evidence summarized is sufficient under the law of the extradition partner to justify prosecution and was gathered according to the law of the extradition partner.

The Application

[ 6 ] On July 27, 2011, the Minister of Justice issued an authority to proceed seeking an order for the Respondent’s committal for extradition for conduct corresponding to the offences in Canada of conspiracy to traffic a Schedule 1 controlled substance contrary to s. 5 of the Controlled Drugs and Substances Act S.C. 1996, C.19, as amended and s. 465 of the Criminal Code R.S.C. 1985, Chap. C-46.

[ 7 ] The United States has provided an ROC setting forth evidence in support of the extradition which has been certified by Assistant United States Attorney Terri K. Flynn as being available for trial and sufficient under the laws of the United States to justify prosecution. The ROC sets forth the anticipated evidence from a number of sources including from a Jason Wei, (“Wei”) referred to as a “cooperating defendant” who was involved in the drug trafficking operation, from an unnamed person referred to as a “cooperating witness” (“CW”) and from law enforcement personal, a forensic chemist, a Punjabi linguist and various phone records.

Respondent’s Evidence

[ 8 ] At the outset of the hearing, the Respondent sought to tender evidence in response to the Application in the form of his affidavit. The Crown objected to the filing of the affidavit on the grounds that it does not meet the test for admissibility under s. 32(1) (c) of the Act . In the alternative, and if the Respondent’s affidavit was admissible, the Crown sought to tender a reply affidavit.

[ 9 ] In order to expedite the hearing of the Application, I directed that the Respondent’s affidavit and the Crown’s proposed reply affidavit be marked as letter exhibits to the hearing. The parties were directed to argue the issue of admissibility as part of their argument on the Application and I would reserve decision on admissibility and deal with it as part of my reasons in the Application.

[ 10 ] In his affidavit the Respondent concedes that he is the subject of the extradition proceedings. He denies, however, any involvement in the matter set out in the Application and states he is totally innocent of all of the allegations made against him by the United States. He denies he has ever been to any of the places in the United States mentioned in the ROC. He says he has only been to the United States once in 1990 for a brief overnight trip to Buffalo, New York with his family. He says that at all material times mentioned he was working full time in Toronto for his brother’s furniture store. He denies that he was a participant in any of the telephone calls set out in the ROC or ever had any involvement with any of the telephone numbers listed.

[ 11 ] The affidavit also sets out the Respondent’s counsel’s correspondence with the US Attorney in charge of the file detailing efforts to obtain more information in respect of dates and places to enable the Respondent to establish that he is not the person the US authorities seek. Part of this effort involves a request to the US authorities to provide copies of the telephone recordings and the submission of a voice sample from the Respondent to enable the US authorities to compare his recorded voice with the earlier recordings.

[ 12 ] The affidavit further points out errors in the ROC including the Respondent’s height, weight, hair colour and eye colour and that his nickname is Pamma not Pumma.

[ 13 ] Finally, the Respondent states he is currently subject to an order for deportation to India which he is fighting. Based on legal advice, he is optimistic about overcoming his immigration issues but if he is sent to the United States to face the charges against him which are the subject of this Application, it is very likely he will not be allowed back into Canada if he is found not guilty.

[ 14 ] The Crown’s reply affidavit simply attaches a letter from Ms. Flynn, Assistant United States Attorney to the Respondent’s California attorney indicating that the Justice Department intends to continue with the formal extradition process.

[ 15 ] A respondent’s right to call evidence at an extradition hearing is limited. Under s. 32(1)(c) of the Act , the respondent may only introduce evidence that is relevant to the test for committal in s. 29(1) of the Act and the hearing judge considers reliable. Evidence that demonstrates the evidence relied upon by the requesting state is “manifestly unreliable” is relevant and admissible: U.S.A. v. Ferras , supra ; U.S.A. v. Anderson (2007) 2007 ONCA 84 () , 218 C.C.C. (3d) 225 (C.A.) at para. 35 . Evidence purporting to contradict or establish a defence to the requesting state’s evidence is not relevant or admissible: Canada v. Schmidt , 1987 48 (SCC) , [1987] 1 S.C.R. 500 (S.C.C.) at paras. 28 and 29 .

[ 16 ] In my view, the evidence contained in Mr. Singh’s affidavit is not relevant to the issues in the Application and is therefore not admissible in this proceeding. Mr. Singh’s denials of any involvement in the alleged drug operation generally and specifically in relation to the allegations in the ROC, all relate to his ultimate defence of the charges. As well, the dealings with the US Attorney to obtain particulars of the allegations and the attempts to establish that it is not his voice on the phone recordings have no impact on the present proceedings. While the US Attorney has indicated a willingness to be cooperative to a degree in responding to those requests and has in fact provided some information, it has clearly indicated that it wishes the extradition proceeding to proceed. Finally, Mr. Singh’s immigration status has no relevance to the United States request to have him extradited in respect of drug offences in the United States.

[ 17 ] None of the information contained in the affidavit establishes in any way the fundamental inadequacies or frailties of the material relied on by the United States. While it raises issues of credibility and reliability, those are issues for trial. They do not raise concerns of reliability of the evidence which are “sufficiently powerful” to justify a complete rejection of the United States’ evidence of Mr. Singh’s involvement in the offences charged: U.S.A. v. Anderson , supra, at paras. 28 – 30 . Nor does the United States’ failure to deal with the Respondent’s attempts to resolve the allegations against him have any impact on the proceedings. The United States is entitled to insist on proceeding with the extradition proceeding and is under no obligation to deal with the Respondent at this stage.

[ 18 ] Accordingly, the Respondent’s affidavit will not be admitted on the Application. It follows that the Crown’s reply affidavit will not be admitted either.

The Evidence

[ 19 ] The ROC in support of the Application sets out that Wei, who was arrested in January of 2007 and is cooperating with US authorities, was involved in the drug trafficking operation in the Los Angeles area. Wei’s role was to pick up the cocaine, store it for a short period and package it for pick up by truck drivers. In 2006, Wei began arranging for pick-ups by truck drivers over the phone with a person called “Pumma”. Although Wei never met Pumma in person, he spoke with him many times at various cell phone numbers to arrange for truck drivers to pick up the cocaine for delivery to Canada. Their conversations were in English. Cell phone records indicate that between October and December 2006, there were approximately 21 calls between a cell phone used by Wei at that time and the number (203) 522-1502.

[ 20 ] Between June 15 and 19, 2007, law enforcement agencies intercepted a number of calls on Wei’s phone through court-authorized wiretaps. The telephone conversations were drug related and Wei and the person he spoke with utilized a code. They were in English and dealt with the pickup and transport of 45 kilograms of cocaine to Canada by a truck driver named Jagmohan Dhillon. The calls were with both another individual and with Mr. Dhillon. In listening to the tapes, Wei is unable to say whether the other individual he was talking to was the “Pumma” he had dealt with many times before in arranging transport of the cocaine to Canada.

[ 21 ] In addition, the ROC sets out that CW who is a long-haul truck driver, is expected to testify that in 2007, he was introduced to a person at a truck stop who said his name was Paramijt but his nickname was “Pumma”. Paramijt told him he could make money transporting shipments of cocaine to and from various locations in the United States inside semi-tractor trailers. The drugs would end up in Canada for distribution. Paramijt gave CW two cell phone numbers, one US ((203) 522-1502) and the other Canadian, to contact him. Subsequently, Paramijt called him regularly to see if he was interested in transporting the drugs.

[ 22 ] In June 2007, CW made a consensually monitored and recorded telephone call from Ohio to (203) 522-1502, the US number Paramijt had given him. He recognised the person who answered and he spoke with as the same person he had met with who introduced himself as Paramijt and who he had subsequently spoken with on the phone a number of times thereafter about transporting drugs. Paramijt told him that there was a trailer that would be ready to transport $5 million worth of product from the Los Angeles area to the Detroit, Michigan area and that he would be paid $20,000 to transport the trailer.

[ 23 ] On June 28, 2007, CW made or received eleven telephone calls to or from Paramijt, nine of which were consensually monitored and recorded by law enforcement agents. The calls dealt with the details of CW’s trip to California to pick up and transport the cocaine. On June 30, 2007, CW and law enforcement personnel travelled to Los Angeles. While in Los Angeles, a total of 50 consensually monitored and recorded telephone calls were made to or received from Paramijt by CW involving transporting the drugs. Paramijt provided CW with a code to tell the “drop-off” person in order to verify CW was the intended recipient and provided him with the telephone number for the “drop-off” person. CW subsequently utilized the information and received 23.64 kilograms of cocaine for transport.

[ 24 ] CW reviewed a photograph and identified the individual in the photograph as the person he knew as Paramijt. The photograph was of the Respondent and was received from Canadian law enforcement agents. CW also listened to the recordings of the telephone calls between Wei and another individual between June 15 and 19, 2007. CW identified the voice on the calls with Wei to be the same person he spoke with on the phone later that same month who introduced himself to him as Paramijt.

[ 25 ] Amad Arshad, certified by the FBI as a linguist and language monitor fluent in Punjabi and who has been trained as a skilled voice identifier, listened to the recordings of the court authorized wiretaps of Wei’s phone calls between June 15 and 19, 2007 and compared the voice of the unidentified person Wei was talking to with the voice of the person CW was talking to at the end of June, early July 2007 who CW said is the person he met called Paramijt or Pumma. Based on his understanding, training and experience with the Punjabi language, Mr. Arshad believes that the person speaking to Wei is the same person who was speaking to CW.

[ 26 ] As noted earlier, the Authority to Proceed in this matter provides that alleged conduct for which the extradition of the Respondent is sought corresponds to the offence in Canada of conspiracy to traffic a Schedule 1 controlled substance contrary to s. 5 of the Controlled Drugs and Substances Act S.C. 1996, C.19, as amended (“ CDSA ”) and s. 465 of the Criminal Code R.S.C. 1985, Chap. C-46.

[ 27 ] Section 5(1) of the CDSA makes it an offence to traffic in a substance included in Schedules I – IV of the CDSA . Cocaine is included in Schedule I. Section 2(1) of the CDSA defines “traffic” in a substance included in any of Schedules I to IV to mean, among other things, to sell, administer, give, transfer, transport, send or deliver the substance.

[ 28 ] Section 465 of the Criminal Code provides that everyone who conspires with anyone to commit a summary or indictable offence is guilty of the summary or indictable offence and is liable to the same punishment. Conspiracy consists of an agreement by two or more persons to commit a criminal offence and the intention to put the agreement into effect: R. v. Papalia; R. v. Cotroni (1979), 1988 22 (SCC) , 45 C.C.C. (3d) 1 (S.C.C.) at p. 17.

[ 29 ] In my view, the ROC contains sufficient evidence to establish that there was a conspiracy to ship cocaine from the United States to Canada utilizing long-haul truck drivers and that the Respondent was a member of the conspiracy. The evidence of both Wei and CW establishes that numerous individuals, including the Respondent were involved in arranging and transporting significant amounts of cocaine from the United States to Canada utilizing long-haul truck drivers. Wei was involved directly in the transportation of the cocaine and had contact with numerous individuals to arrange pick up of the drugs including the Respondent. CW was solicited by the Respondent to participate in transporting the drugs and was subsequently hired by the Respondent and directed by him to go to California and pick up cocaine to transport it across the United States.

[ 30 ] Mr. Singh submits that the evidence in the ROC that purports to identify him as the individual who committed the offences in question is, on its face, unreliable and dangerous and should be disregarded and given no weight by this court. In particular, Mr. Singh points to his identification by CW on the basis of a single photograph. He submits that CW’s identification is further tainted because the photograph, Exhibit “A” to the ROC, has the name “Paramijt Singh” typed under the picture, giving rise to the possibility of improper suggestion. Finally, he submits that, based on a visual examination of Mr. Singh in the courtroom, it should be clear that his physical characteristics, particularly his height, weight, colour of hair and eyes, do not match the descriptions contained in the ROC.

[ 31 ] In my view, the identification evidence in the ROC is not, on its face, manifestly unreliable. While the identification evidence raises issues of reliability, those issues must be dealt with at trial. CW has identified a picture of Mr. Singh as the person who he met at the truck stop and had discussions with about becoming involved in a drug trafficking operation. Although there are issues of reliability arising out of the use of a single photograph to effect an identification, a single photograph can be sufficient to support a finding of guilt: R. v. Liebhardt , [2006] O.J. No. 1239 (C.A.) .

[ 32 ] Further, I do not consider the labelling of the photograph, if indeed it was labelled at the time CW viewed it, to make the identification evidence “so defective” or “so unreliable” that it should be disregarded. While it is not clear from the ROC whether the photograph shown to CW was labelled as Exhibit “A”, I accept for the purpose of this Application that it was. In my view, the labelling of the photograph has no impact on the issue of identification. CW identified the person in the photograph as the person he met and had a conversation with him. The encounter was not brief and CW’s view of the individual close and unobstructed. The presence of a name under the photograph in my view would have very little if any impact on the issue of identification. In any event, the presence of the name under the photograph is simply another factor to consider in relation to the question of ultimate reliability of the identification at trial. It does not, in my view, make the evidence of identification so unreliable that it should be disregarded in this proceeding.

[ 33 ] Finally, having regard to the totality of the evidence in the ROC and particularly CW’s identification of the photograph of Mr. Singh as the person he met with, I do not consider that any errors in the physical description of the individual in the ROC have any impact on the issue. Firstly, I am not prepared to say based on a simple visual observation of Mr. Singh in the courtroom that the physical descriptions in the ROC are wrong. Assuming they are, however, a number of years have passed since the alleged offences making such a comparison not appropriate. Mr. Singh’s weight and colour of hair could easily have changed. I note that the photograph, Exhibit “A”, Mr. Singh has a moustache whereas he was clean shaven in court. Finally, even if I was to conclude the physical identification information in the ROC is so wrong that it is “manifestly unreliable”, such a finding results in that evidence being disregarded and given no weight. There remains, however, the other identification evidence which in my view is sufficient.

[ 34 ] The Respondent does not take issue with fact the he is the person sought in the request for extradition by the United States. In my view, the evidence establishes on a balance of probabilities that that is in fact the case. Section 37 of the Act provides that the fact that the name of the person before the court is similar to the name of the person sought in the extradition request and the physical characteristics of the person before the court are similar to those evidenced in, among other things, a photograph, are evidence that the person before the court is the person referred to in the ROC.

[ 35 ] The name of the Respondent who is before the court is identical to the name of the person sought in the ROC submitted by the United States. Further, the Respondent resembles the person depicted in the photograph that is attached as Exhibit “A” to the ROC which was identified by CW as the person who dealt with him in respect of the transportation of drugs.

Conclusion

[ 36 ] Accordingly, I am satisfied on the evidence provided that there is sufficient evidence available for trial which is not manifestly unreliable in respect of each essential element for the Canadian offence set forth in the Authority to Proceed against the Respondent upon which a jury, properly instructed, could convict and that the Respondent is the subject of the United States’ extradition request.

[ 37 ] An order will therefore issue pursuant to s. 29 of the Act committing the Respondent into custody for extradition to the United States of America in respect of charges corresponding to conspiracy to traffic a Schedule I controlled substance contrary to s. 5 of the CDSA and s. 465 of the Criminal Code .

L. A. Pattillo J.

Released: February 13, 2012

Additional Header Block

COURT FILE NO.: E 78/11

DATE: 20120213

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN HER MAJESTY THE QUEEN – and – THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNTIED STATES OF AMERICA REASONS FOR JUDGMENT PATTILLO J.

Released: February 13, 2012