ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-90000098-00MO

DATE: 20140826

BETWEEN:

UNITED STATES OF AMERICA
Applicant

– and –

THI LUYEN LE
Person Sought

Adreinne Rice, for the Attorney General of Canada

Barry Fox, for Ms. Le

HEARD: June 12, 2014

r.f. goldstein j.

[1] Ms. Le is wanted in the United States for importing and distributing just over 130,000 pills of “ecstasy”. The United States alleges that in 2006 she sold the pills to a drug dealer, Dan La. Dan La was a drug dealer in Philadelphia, Pennsylvania. He was also a “cooperating witness”. He was cooperating with the U.S. Drug Enforcement Administration.

[2] The Attorney General, on behalf of the United States, now seeks an order from this court committing Ms. Le for extradition. Ms. Le’s counsel, Mr. Fox, opposes the order on the basis that the identification of Ms. Le is weak, and that the evidence of Mr. La is “manifestly unreliable”.

[3] In my view, for the reasons that follow, there is sufficient evidence to commit Ms. Le for extradition.

FACTS:

[4] In February 2006 Dan La was a drug dealer in Philadelphia. He was under indictment. As is not uncommon for criminals both in the United States and this country, he agreed to work for law enforcement authorities in order to reduce his eventual sentence. He became what is known in the United States as a “cooperating witness”. In Canada, such a person would be referred to as an agent, or an agent provocateur.

[5] In January, February, and March 2006 Mr. La and Ms. Le had a series of conversations concerning the sale of ecstasy. These conversations were recorded by the DEA with Mr. La’s consent. Unlike in this country, in the United States law enforcement authorities do not require judicial authorization to intercept communications where one party consents. On February 10 2006 Mr. La met with Ms. Le in Buffalo, New York. Special Agent Truong accompanied Mr. La, posing as an associate. The conversations were held in Vietnamese. Special Agent Truong is an agent of the U.S. Department of Homeland Security. He speaks Vietnamese fluently. Mr. La and Ms. Le agreed on a sale of ecstasy pills and the transport of bulk currency to pay for the drugs. There were further conversations after this meeting.

[6] On March 28 2006 Ms. Le called Mr. La and said that her courier would meet him in Philadelphia. Her courier had 130,000 ecstasy pills. Later that day Mr. La and Special Agent Yoo met with the courier. Special Agent Yoo is an agent of the DEA. The courier gave the keys to his car to Special Agent Yoo. Law enforcement officers later seized 130,520 pills from the trunk. Mr. La later met with another of Ms. Le’s associates, one Nguyen. Mr. Law gave Mr. Ngueyn a bag and told him that the bag contained $500,000.00 in order to pay for the pills. In fact, the bag contained ordinary paper packaged to feel like $500,000.00 in U.S. currency.

[7] The pills seized by the DEA agents were weighed and tested at the DEA laboratory. They weighed 39 kilograms. The pills contained 3, 4-methylenedioxymethamphetamine, or MDMA. MDMA is commonly known as ecstasy. The pills also contained methamphetamine. MDMA and methamphetamine are both classified as Schedule I drugs under the Controlled Drugs and Substances Act.

[8] Mr. La and Special Agent Truong both identified Ms. Le in a photograph. That photograph is attached to the Record of the Case. Mr. La is able to identify Ms. Le’s voice as well as his own from the intercepted communications.

[9] Special Agent Yoo is an expert in the field of drug trafficking. His evidence is that 130,520 ecstasy pill are not consistent with personal use and are consistent with an intent to distribute.

[10] The American authorities did not seek Ms. Le’s extradition until 2013, for reasons that have no relevance to the issues in this matter. See my ruling in United States of America v. Le, 2014 ONSC 1569, [2014] O.J. No. 1245 (Sup.Ct.). On February 7 2013 the Minister of Justice issued an Authority to Proceed under s. 15 of the Extradition Act. The ATP authorized the Attorney General to seek on order committing Ms. Le for extradition on the corresponding Canadian criminal offences of:

• Importing a Schedule I substance contrary to s. 6 of the Controlled Drugs and Substances Act; and

• Conspiracy to possess property obtained by crime contrary to s. 354 and s. 465 of the Criminal Code.

ISSUES:

[11] Mr. Fox did not contest that the offences set out in the ATP correspond to the alleged facts in the record of the case. I am satisfied that the conduct set out in the Record of the Case is evidence of conduct that, had it occurred in Canada, would be criminal activity, specifically importing and conspiracy to possess property obtained by crime. Mr. Fox did not contest that, and focussed his submissions on two issues:

[12]

(1) Is the evidence of Mr. La manifestly unreliable?

(2) Has the Attorney General shown that Ms. Le is the person sought?

ANALYSIS:

[13] Mr. Fox argued that the manifest unreliability of Mr. La, combined with the weakness of the identification evidence, made it too dangerous to commit Ms. Le for extradition.

[14] Under Canadian law, there are 2 phases to the extradition process: judicial and ministerial. At the judicial phase, a judge shall order committal if:

• There is admissible evidence of conduct that, had it occurred in Canada, would justify committal for trial on the offence set out in the ATP; and,

• The person before the Court is the person sought by the extradition partner.

See: Extradition Act, s. 29(1)(a).

[15] Under the Ministerial phase, the Minister of Justice determines whether the person sought should be surrendered to the extradition partner. I turn now to the issues:

1. Is the evidence of Mr. La manifestly unreliable?

[16] The court may not order committal for extradition unless it meets the “Shephard Test” – is there is any evidence upon which a reasonable jury properly instructed could return a guilty verdict? United States of America v. Shepard, 1976 8 (SCC), [1977] 2 S.C.R. 1067. An extradition judge may refuse to admit evidence that is manifestly unreliable: United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77.

[17] Mr. Fox argues that the key evidence in the Record of the Case is the evidence of Mr. La. He says that it is manifestly unreliable. Mr. La was under indictment at the time of the offences, but there is no indication as to the extent of his criminal activity, the sentence he may have received as a result of his assistance to the authorities, or even whether he was paid. He further argues that there is no reference to the telephone number that was contacted, but only to a telephone. There is an issue of voice identification. Mr. La says that he will identify Ms. Le’s voice, but it is unclear, Mr. Fox argues, as to how he will do that.

[18] I respectfully disagree. I accept that the un-corroborated evidence of an agent provocateur could be manifestly unreliable. It is true that the United States authorities have not supplied the recordings, or transcripts of recordings, as part of the record of the case. They have, however, supplied summaries of the key calls. I am satisfied that these recordings exist. I am further satisfied that there is some evidence upon which a jury could find that they are calls in furtherance of a drug transaction between Ms. La and Mr. Le. Mr. La indicates in the record of the case that he can identify Ms. Le’s voice. Given the number of phone calls and the two physical meetings between the two, this provides some evidence of voice identification.

[19] More importantly, according to the record of the case American law enforcement officers accompanied Mr. La when he met with Ms. Le and when he met with Ms. Le’s courier to obtain the ecstasy. Those officers have provided evidence in addition to the evidence provided by Mr. La. As noted, Special Agent Truong met with Ms. Le on February 10 2006. Special Agent Yoo met with Ms. Le’s associate, Mr. Evans, on March 28 2006 when the ecstasy was supplied. There was a telephone call between Ms. Le and Mr. La on March 27 2006 during which the arrangements were made for the transfer of the drugs the next day. That call was recorded. Ms. La supplied a telephone number for her courier. That number was used to arrange a meeting. The courier showed up with over 130,000 pills of ecstasy.

[20] Meeting with Mr. La to discuss the sale and supplying the telephone number of the courier were clearly key acts in furtherance of the offences by Ms. Le. Mr. La’s evidence is clearly not the only evidence of those acts. The reliability of the evidence does not turn on Mr. La’s credibility alone.

[21] I am therefore satisfied that the evidence of Mr. La is corroborated by intercepted communications and by law enforcement officers. It is not manifestly unreliable and need not be excluded.

2. Has the Attorney General shown that Ms. Le is the person sought?

[22] More persuasively, Mr. Fox argues that the single photograph in the Record of the Case casts doubt upon the identification. He points out that in Exhibit 2E of the Application for a Provisional Arrest Warrant contains a photograph that has some differences with the photograph in Exhibit “A”. The Record of the Case contains no other photographs.

[23] There is certainly evidence that the person in Exhibit “A” of the Record of the Case is the person who arranged for and sold the 130,520 ecstasy pills to Mr. La. Mr. La and Special Agent Truong both identified the person who sold the ecstasy pills as the person in the photograph.

[24] There is no doubt that the person sought by the United States is Ms. Le, and that Ms. Le is the person before the Court. The photograph purports to be a photograph of Ms. Le. A single photograph can be sufficient evidence upon which extradition can be founded: United States of America v. Singh, [2012] O.J. No. 614 (Sup.Ct.). In court, Ms. Le appears to be the person in the photograph: United States of America v. Orphanou, 2011 ONCA 612, [2011] O.J. No. 4252, 107 O.R. (3d) 365 (C.A.) at para. 38.

[25] As an aside, I reviewed the photograph at Exhibit 2E of the Application for a Provisional Arrest Warrant even though that document is not technically part of Record of the Case and not before me. Although there are some differences in the photographs, there are also similarities so I do not entirely agree with Mr. Fox.

[26] I do, however, share Mr. Fox’s concerns about the strength of the identification evidence. I conclude that the evidence of identification is weak, but it is not manifestly unreliable. It may not be enough to obtain a conviction, but that is not the test. As long as there is some evidence available for trial, and it is not manifestly unreliable, the person sought will be committed for extradition. It is not for the extradition judge to determine the strength or weakness of the evidence beyond determining whether it is manifestly unreliable: United States v. Thomlinson, 2007 ONCA 42, [2007] O.J. No. 246, 84 O.R. (3d) 161, 216 C.C.C. (3d) 97 (C.A.); United States v. Singh at paras. 30-33.

DISPOSITION

[27] Ms. Le is committed for extradition.

R.F. Goldstein J.

Released: August 26, 2014

COURT FILE NO.: CR-13-90000098-00MO

DATE: 20140826

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

UNITED STATES OF AMERICA
Applicant

– and –

THI LUYEN LE
Person Sought

REASONS FOR JUDGMENT

R.F. Goldstein J.