ONTARIO
SUPERIOR COURT OF JUSTICE
(EAST REGION)
COURT FILE NO.: 12-53
DATE: 2013/04/08
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 29 OF THE EXTRADITION ACT, S.C. 1999, C.18, as amended, FOR THE COMMITTAL OF DARRICK MARTIN TO AWAIT SURRENDER TO THE UNITED STATES OF AMERICA
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
(on behalf of the United States of America)
Applicant
– and –
DARRICK MARTIN
Respondent/
Person Sought for Extradition
Jacqueline Palumbo, counsel for the Applicant
Leo Russomanno, counsel for the Respondent/Person Sought for Extradition
HEARD: Friday, March 1, 2013
LEROY, J.
RULING ON THE EXTRADITION HEARING
[1] The purpose of this hearing was to assess whether there is sufficient evidence to order that DARRICK Martin be committed into custody under section 29 of the Extradition Act (Act) to await the Minister’s decision as to whether he is to be surrendered to the United States.
[2] The Authority to Proceed was issued on June 15, 2012 under s. 15 of the Act authorizing the Attorney General of Canada, on behalf of the United States, to seek a warrant of committal against Mr. Martin.
[3] The contentious issues are:
Whether the evidence admissible under the Act of conduct, had it occurred in Canada, justifies committing Mr. Martin to trial on the offence of conspiracy to traffic in a Schedule II Controlled Substance, contrary to s. 465(1)(c) of the Criminal Code and s. 5(1) of the Controlled Drugs and Substances Act. In short, is there some evidence upon which a reasonable jury, properly instructed, could convict Mr. Martin of these offences?; and
Whether, on a balance of probabilities, Mr. Martin is the individual sought for prosecution by the United States of America.
[4] The evidence relied on by the applicant is the information contained in the Record of the Case for the Prosecution and First Supplemental Record of the Case for Prosecution both certified, as required under subsection 33(3) of the Act, by Carl Eurenius, Assistant United States Attorney.
[5] The extradition partner believes it has a prima facie case for prosecution. An American assistant attorney certifies that the evidence summarized or contained in the Record of the Case is available for trial, is sufficient under the laws of the United States to justify prosecution and was gathered according to the law of the United States.
[6] The Record of the Case is admissible pursuant to s. 32 of the Act. Admissible evidence is presumptively reliable.
[7] The evidence against Mr. Martin derives from two sources.
[8] The first, from an arrest near Massena, New York following a highway traffic stop for speeding, on June 17, 2007. The operator and sole occupant identified himself as DARRICK Martin. Mr. Martin was not the registered owner of the car and denied knowledge of the owner’s identity. Mr. Martin’s explanation as to how he came to be in possession of the car was less than compelling to the officer. The vehicle search revealed a small amount of marijuana scattered through the trunk and console areas totalling less than a gram and cash in a bag in the trunk in the amount of $178,024. Mr. Martin said that he did not know whose money it was. Mr. Martin was photographed, charged with unlawful possession of marijuana and the money was administratively forfeited to the state.
[9] The photograph is Exhibit “G” in the Record of the Case. There were three officers involved in that incident all of whom were face-to-face with Mr. Martin. They confirm that the person who identified himself as DARRICK Martin at the time is the person in the photograph.
[10] That Exhibit G depicts Mr. Martin’s visage is not in issue. The issue is whether or not there is sufficient reliable evidence to raise a prima facie case that Mr. Martin is the courier cooperating witness 1 (CW1) associates with Exhibit G. I will move to that now.
[11] The second source of information comes from CW1, an informant. The Record of the Case and the supplement summarize the evidence that the Americans marshalled in support of their prosecution. CW1 is un-named, for safety reasons, however; his identity will be disclosed prior to trial and he must testify in person.
[12] Mr. Russomanno argues that the case against Mr. Martin comes down to CW1 and core veracity and reliability flaws reduce the value of that person’s evidence to the point of disappearance.
[13] He cites factors, such as CW1’s anonymity and heavy involvement in the Drug Trafficking Organization, as strong indicators of inherent unreliability. He categorizes CW1 as a jailhouse informant. We do not know what drove CW1’s disclosures, whether it was promise of leniency or money and whether flaws in CW1’s perception, memory and sincerity were glossed over.
[14] Mr. Russomanno argues that CW1’s statement that the courier he dealt with is the person depicted in Photograph G is no better than dock identification. Experience tells us that wrongful convictions come from faulty identification procedures and we have no information whatsoever as to the protocol followed when CW1 connected the courier he worked with to the photo of Mr. Martin.
[15] He further argues that neither of Michael Harris or William Scott Morgan, both Boston buyers who transacted delivery and payment with the couriers, identified Mr. Martin as one of the couriers. If they were shown Photograph G and did not recognize Mr. Martin as a courier then that information should have been disclosed and would be exculpatory.
Standard of Review
[16] An extradition hearing is more than ticking boxes and rubber-stamping the submission of the foreign state. Before a person can be extradited, there must be a judicial determination that the requesting state has established a prima facie case that the person sought committed the crime alleged and should stand trial for it – United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77, para 22. A prima facie case is one where a party has produced enough evidence to allow the properly instructed trier of fact to infer the facts at issue and convict.
[17] Justifying a committal depends on a combination of admissibility, double criminality, basic fairness and constitutional guarantees that together inform the decision to commit or not – Ferras para 43. The expanded or relaxed rules of admissibility in the Act merit a limited weighing of evidentiary reliability. Anything less violates s. 7 of the Charter.
[18] That does not mean that the extradition hearing is to turn into a trial. The extradition judge does not rule on ultimate reliability and does not determine facts. The court’s purpose is to protect the respondent from being surrendered to another jurisdiction for conduct that Canada would not recognize as criminal – USA v. Yang (2001) 2001 20937 (ON CA), 157 C.C.C. (3d) 225.
Discussion - Informer Reliability
Is this evidence so inherently unreliable that it cannot form the basis of a prima facie case?
[19] The words informant and scepticism are often in the same paragraph. Informants are not altruistic. That said, informants are an integral part of crime investigation so we have devised enquiries to assess the reliability of an informer’s intelligence. I do not agree that CW1 ought to be categorized as a jail-house informant.
[20] Some of the questions a judicial decision-maker should ask when assessing an informer's intelligence include:
A. What is the degree of detail of the tip?
B. Is there a clear statement of the informer’s source of knowledge?
C. Were clear indicia of informer’s reliability stated?
D. Was there sufficient corroboration, or verification, of the informer's advice?
E. Does all of the foregoing add up in the totality of the circumstances?
[21] Weakness in any one or more criteria can be compensated by strength in another.
CW1 Evidence
[22] CW1 will state that he collected Mr. Martin from a marina on the American side of the river and drove him to a load car more than one time. He will state that he drove Mr. Martin to the load car shortly before the traffic stop in June 2007. He did not know Mr. Martin’s name at the time. He identified the face in photograph G to be the fellow he transported to the load cars.
[23] There is a clear statement of CW1’s source of knowledge. He will state that he was deeply involved in the Drug Trafficking Organization on the American side of the border for years. He took instructions and explanation from Mr. Woods and Gates Dinelle. He describes a trafficking organization the sole purpose of which was to traffic marijuana from Canada into the United States for profit. He describes the key people and the strategies employed. He purchased the load cars and transported couriers to and from the river drop-off sites at the beginning and end of deliveries. He collected the proceeds from couriers and delivered to Mr. Woods. He identified 6 couriers.
[24] Events narrated in detail by CW1 that prove out:
- He knew about Mr. Martin’s arrest on June 17, 2007;
- He knew about Mr. Cumming’s detention and the circumstances on April 13, 2007;
- He knew about Joanna Hyderman’s detention and the circumstances on October 31, 2007;
- As informer, he orchestrated the seizure relative to Jeana MacDonald on January 4, 2008;
- He knew the vehicle driven by Noel Piette on February 24, 2007 was one that CW1 had purchased in the name of Rosebud Cook for use as a courier vehicle. That seizure amounted to 120 pounds of marijuana;
- CW1 was intimately involved as informer in the tracking and stop of Martin Foley on December 2, 2007.
[25] He will state that he learned about the stops from Mr. Woods. The information is independently verified by reliable facts generated by police authorities.
[26] There is real, reliable evidence of a Drug Trafficking Organization that encompassed a common agreement to traffic a controlled substance. The evidence attributed to Michael Harris, William Scott Morgan and Shawn Ryan is consistent with the information regarding the fact of and the inner workings of this Drug Trafficking Organization imparted by CW1.
[27] There are sufficient indicators of independent reliability to raise a prima facie case. Whether CW1 is believed rests with the trier of fact at trial. Although we are not apprised of CW1’s motivation in this, whether it is financial, exemption or reduced sanction or something else, the intelligence he is said to have reported was reliably borne out. His handler would characterize him as a consistently reliable informer. He is an accomplice who capitulated. Unsavoury accomplice witnesses are not uncommon. At trial, we rely on the message contained in the Vetrovec warning and direct the trier of fact to look for independent indicators of reliability.
Identification
[28] Does the evidence adduced establish on a balance of probabilities that Mr. Martin, the person in the photograph and before the court is the person referred to by CW1 in the Record of the Case? Defence submit that the photograph identification is analogous to one made in the dock. Eyewitness evidence is notoriously frail and fraught with problems. Dock identification is particularly so. There is no great difficulty in picking out the person standing rather obviously in the dock.
[29] It is correct that an honest but mistaken witness can be very persuasive. Such evidence has been identified as a major source of wrongful convictions in Canada. A number of factors influence the accuracy of identification of a suspect by a witness, such as whether the suspect is known or a stranger to the witness, the circumstances surrounding the contact between the suspect and the witness, the individual make-up of the witness, and the nature and methods used during pre-trial identification of the suspect. This frailty is elevated when the initial contact between witness and suspect is made under traumatic and unexpected circumstances and when observation conditions are not ideal. Pre-trial identification procedures may be flawed and designed - intentionally or unintentionally - to influence the witness so that a particular suspect is identified.
[30] The risk of honest but false identification diminishes as the level of familiarity between the witness and suspect increases. Here, the familiarity is said to be in a business context. CW1 reports that he attended to collect Mr. Martin at a marina more than one time and drove him to a load car. He connects one contact to the June 2007 arrest. The courier identification protocol at the marina pickup, if CW1 is believed, would not be random. There were no obvious exigent distracting circumstances reported. The familiarity level was developed enough for CW1 to form an opinion as to the intellect of the person he connected to Mr. Martin’s photograph.
[31] The identification markers and procedures that connected the courier identification to Mr. Martin are not revealed in the Record of the Case. The certification confirms that the procedure followed complies with United States law. If identification is the live issue at trial it will be thoroughly fleshed out in cross-examination.
[32] That the Boston contingent did not identify Mr. Martin as one of the couriers may go to reasonable doubt at trial. I conclude however at this preliminary stage that there may be many explanations for that, all of which are speculative and do not assist in this review. The United States prosecution chose to go with the evidence they have from CW1 and that remains the focus.
[33] The only evidence is that CW1 connects one of the couriers he dealt with in fulfillment of his duties in the Drug Trafficking Organization to Mr. Martin’s photograph. His engagement with this courier is represented to be more than casual and more than one time. His opportunity for developing recognition was not thwarted by trauma or exigent circumstances. He will confirm facilitating Mr. Martin’s run when Mr. Martin was stopped for speeding. All identification evidence is afflicted with the possibility of honest error; however the opinion stated by CW1 is beyond the category of in dock identification. I am satisfied that it is more likely than not Mr. Martin is one of the persons the United States government seeks to prosecute for conspiracy to traffic a controlled substance.
Conclusion
[34] The allegation is that Mr. Martin was complicit in illegal and clandestine entry into the United States to deliver marijuana to buyers, collect the proceeds and return for clandestine return to Canada all under the aegis of the Drug Trafficking Organization. The prosecution has the evidence of CW1, the stateside facilitator, Harris and Morgan, buyers and Ryan, a courier all of whom say they were participants in a structured busy trafficking operation run by Woods and Dinelle. Stops and arrests were made in reliance on inside informant information in 2007 and 2008. The allegation is that the couriers were well paid for their services. They had specific instructions in case of apprehension. The Drug Trafficking Organization provided special communication devices for that purpose.
[35] While the operator of a vehicle is not presumed to know the content of the trunk, the trier is not prohibited from connecting the dots. That is a matter for trial.
[36] The evidence adduced at the hearing raises a prima facie case against Mr. Martin as a participant to a conspiracy to traffic marijuana. There is sufficient probative evidence to warrant Mr. Martin’s committal for trial here on the offences of conspiracy to traffic a controlled substance. He is committed into custody to await the Minister’s decision whether he should be surrendered to the United States and that order is to issue.
Justice Rick Leroy
Released: April 8th, 2013
COURT FILE NO.: 12-53
DATE: 2013/04/08
ONTARIO
SUPERIOR COURT OF JUSTICE
(EAST REGION)
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 29 OF THE EXTRADITION ACT, S.C. 1999, C.18, as amended, FOR THE COMMITTAL OF DARRICK MARTIN TO AWAIT SURRENDER TO THE UNITED STATES OF AMERICA
THE ATTORNEY GENERAL OF CANADA
(on behalf of the United States of America)
Applicant
– and –
DARRICK MARTIN
Respondent/
Person Sought for Extradition
RULING ON THE EXTRADITION HEARING
Justice Rick Leroy
Released: April 8th, 2013