ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: EX 542/14
DATE: 2015 07 31
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Elaine Krivel, Q.C., for the Applicant / Requesting State
- and -
ARPINDER GILL
Alan D. Gold and Etai Hilzenrat, for the Respondent / Person Sought
HEARD: July 27, 2015
REASONS FOR COMMITTAL
FAIRBURN J
Overview
[1] The United States seeks the extradition of Arpinder Gill so that he may be tried for drug related matters. The Canadian offence corresponding to the alleged conduct is conspiracy to traffic in substances found in Schedules I and II of the Controlled Drugs and Substances Act [“CDSA”]. The alleged substances are cocaine, marijuana and methylenedioxymethamphetamine, also known as ecstasy [“MDMA”].
[2] On December 22, 2014, the Minister of Justice of Canada authorized the Attorney General of Canada to seek the committal of Mr. Gill to custody to await surrender to the United States. In accordance with the Extradition Act, a certified Record of the Case [“ROC”], as well of two certified Supplementary Records of the Case [“SROC”] have been provided by the United States. The ROC and SROCs set out the grounds relied upon by the Attorney General in seeking committal to custody awaiting surrender.
[3] On September 25, 2014, Mr. Gill was arrested on a provisional warrant under the Extradition Act. The warrant relates to indictments that were issued in the State of Michigan in April 2004 and October 2006. The indictments allege conspiracies to possess with intent to distribute marijuana, cocaine and MDMA. The offences underlying these indictments are said to have occurred between December 2002 and July 2003.
[4] Earlier this year, Mr. Gill applied to this court for disclosure of material held by the American authorities. He sought all information related to the why the United States did not seek his earlier presence at a trial in respect to the outstanding indictments. He suggests that the time that has elapsed between the issuing of the indictments and the seeking his extradition amounts to an abuse of process and contravenes his s. 7 Charter rights.
[5] The application for disclosure was heard and dismissed by Wein J. earlier this year: A.G. Canada v. Gill, 2015 ONSC 2577. In detailed reasons, Wein J. ruled that the applicant would be “required to proceed on this issue at the surrender stage of the extradition process”.
[6] The matter was then set down for a committal hearing which occurred earlier this week. Mr. Gold, on behalf of Mr. Gill, takes the position that while he is not consenting to committal, it is not being contested. By taking this position, Mr. Gold expressed an intention to preserve Mr. Gill’s right to raise the disclosure issue, and its link to the alleged abuse of process, at the surrender stage of the extradition process.
[7] Bearing in mind counsel’s position, we proceeded to a brief hearing on committal. Having reviewed the material filed, and upon being satisfied that the test within s. 29(1)(a) of the Extradition Act has been met for the following reasons, Mr. Gill shall be committed into custody to await surrender.
The Test for Committal
[8] There are three distinct stages to an extradition matter. The first and last stages are handled by the executive branch of government. The first stage involves the Minister of Justice issuing an authorization to proceed [“ATP”]. The last stage involves the Minister determining whether surrender to the foreign authority should occur. The middle stage falls to the courts.
[9] Pursuant to s. 24(1) of the Extradition Act, once an ATP is filed with the court, an extradition hearing “shall” be held. Section 29(1)(a), which is applicable in this case, requires that the person be committed “into custody to await surrender” in the following circumstances:
29(1) A judge shall order the committal of the person into custody to await surrender if
(a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner ….
[10] The task of the judge presiding over an extradition hearing has been described as a “modest one”: United States of America v. Lépine, 1994 116 (SCC), [1994] 1 S.C.R. 286, at p. 296; McVey (Re), 1992 48 (SCC), [1992] 3 S.C.R. 475, at p. 526; United States v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462, at para. 120 (Q.L.) [Dynar]; Argentina v. Mellino, 1987 49 (SCC), [1987] 1 S.C.R. 536, at p. 553. This is owing to the fact that the extradition process, a creature of statute, is strictly circumscribed.
[11] Consistent with the modest role assigned to judges at the second stage of the extradition process, the statutory test for committal is not onerous. Section 29(1)(a) requires that the judge be satisfied of two things: (a) that the information before the court discloses a basis upon which the individual could be committed for trial in Canada on the offence contained in the ATP; and (b) that the individual sought for extradition is actually the person before the court.
[12] The first consideration under s. 29(1)(a) reflects what is commonly referred to in the extradition context as the principle of “double criminality”. This term encapsulates the requirement that the conduct at the core of the extradition request be criminal in both Canada and the requesting jurisdiction: Canada v. Fischbacher, 2009 SCC 46, at paras. 25-26 [Fischbacher]. The double criminality principle is codified in s. 3(1)(a) and (b) of the Extradition Act. As for the role of the committal judge, she or he must only consider the domestic part of the double criminality principle: Fischbacher, at para. 35. It is not for the hearing judge to consider foreign law: United States v. Yang (2001), 2001 20937 (ON CA), 149 O.A.C. 364, at para. 5.
[13] The s. 29(1)(a) inquiry is designed to simply explore whether there is sufficient evidence, “admissible under the Act” of conduct that, had it occurred in Canada, would justify committal for trial after a preliminary inquiry for the offence set out in the ATP: United States of America v. Viscomi, 2015 ONCA 484, at para. 29 [Viscomi]. This test is well known and limits the inquiry to whether there is some evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty: Viscomi, at para. 19. For extradition purposes, this is often referred to in the relevant jurisprudence as a “prima facie case”: Fishbacher, at para. 35.
[14] Where circumstantial evidence is relied upon, the judge must engage in a limited weighing of the evidence to ensure that it is reasonably capable of supporting the inferences that the Attorney General says should be drawn: Viscomi, at para. 20. To the extent that there is a difference between the tasks of preliminary inquiry and extradition judges, this difference arises from the proper approach to the reliability and availability of evidence. In United States of America v. Ferras, 2006 SCC 33, at para. 59, McLachlin C.J. found that the committal judge holds discretion to provide no weight to unavailable or unreliable evidence in determining whether the individual should be committed under s. 29(1). In United States v. Thomlison, 2007 ONCA 42, at paras. 45-6, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 179, Moldaver J.A. (as he then was) found that only evidence that is “manifestly unreliable” may be disregarded by the extradition judge. See also: United States v. Aneja, 2014 ONCA 423, at paras. 33-6; R. v. Anderson, 2007 ONCA 84, at para. 30, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 159.
[15] As it relates to the identity requirement within s. 29(1)(a), the judge must be “satisfied that the person is the person sought by the extradition partner”. Section 37 of the Extradition Act provides that, among other things, similarity in names and physical characteristics in photographs may constitute evidence of identity at an extradition hearing. See also: United States v. Wong, [1995] B.C.J. No. 840 (C.A.), at paras. 64-67. Identity must be established on a balance of probabilities: U.S.A. v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 28.
Has the s. 29(1)(a) test been met in this Case?
(i) Overview
[16] The ATP contains the offence of conspiracy to traffic in Schedule I and II drugs contrary to s. 5(1) of the CDSA. I am satisfied that the ROC and SROCs are properly certified and have been filed in accordance with ss. 32 and 33 of the Extradition Act. I am further satisfied that they contain sufficient evidence upon which a reasonable and properly instructed jury could return a verdict of guilty if Mr. Gill were to be tried in Canada for the conspiracy to traffic offence set out on the face of the ATP.
[17] Conspiracy involves an agreement between at least two people to commit a crime. The actus reus is the formation of the agreement to commit the crime. An intention to agree is not enough to form the actus reus of this offence. There must be an actual agreement: R. v. Cotroni, 1979 38 (SCC), [1979] 2 S.C.R. 256, at p. 276. The mens rea involves the intentional joining into the agreement with knowledge of the general objective and desire to put it into effect: Dynar, at p. 511; R. v. Root, 2008 ONCA 869, at para. 66 [Root].
[18] Conspiracy is complete when members of the conspiracy agree to commit a particular offence. While acts taken in furtherance of accomplishing the objective(s) of a conspiracy are not necessary to prove the offence, any such acts may provide evidence of the existence of an agreement and one’s knowledge of and intention in respect to the agreement: Root, at para. 67.
[19] Here, the alleged agreement pertains to trafficking in cocaine, marijuana and MDMA, thereby contravening s. 5(1) of the CDSA. These drugs fall within Schedules I and II of the CDSA. Trafficking enjoys a broad definition. Among other things, s. 2 of the CDSA defines trafficking as to sell, administer, give, transfer, transport, send or deliver a substance falling within Schedules I to IV of the Act.
[20] The ROC and SROCs contain evidence, including wiretap intercepts resulting from two authorizations issued under Part VI of the Criminal Code, that amply support the s. 29(1)(a) threshold for committal having been met. The evidence upon which I base this conclusion is summarized below.
(ii) Seizure of 72 kgs of cocaine in Sacramento, California: June 2003
[21] On June 9, 2003, Ravinder Sekhon and “Babu”, were intercepted speaking about “bricks” and whether there was anyone “to buy”. Shortly after, Gill and Sekhon were intercepted. Gill provided Sekhon with a telephone number in California. Just over half an hour later, Sekhon provided this number to “Babu”.
[22] A few days later, on June 12, 2003, under the ruse of a traffic stop, the person believed to be “Babu” was stopped by the police while driving a truck. The truck was searched and 72 kgs of cocaine were located. The person driving the truck was Satwinder Singh. The police believe Singh to be “Babu”.
[23] On June 14, 2003, the police intercepted a call between Gill and “Baba”. During the call they discuss the one million dollars being requested for bail. Baba asked Gill “[h]ow much did they have” and Gill answered “[s]eventy-two”. Baba asked Mr. Gill how it had “fuckin’ happen[ed]” and Gill responded that he did not know. He then said “I’ll tell you how it happened when I meet you”.
(iii) Seizure of 238 kgs of marijuana, Michigan and Tennessee: June 2003
[24] On June 16, 2003, a conversation between Gill and Varinder Makkar was intercepted. They spoke about something having been picked up. Numerous intercepted conversations followed between Gill and others, all relating to pick up times and various meetings. Later in the day Gill spoke with Jaspreet Pannu about giving “it to him”. After this call, Gill is intercepted speaking to an unknown male, inquiring as to whether he was “ready”. Gill then asked, “[h]ow many today”, to which he received the response: “it’s more than five, I think”.
[25] During the late evening on the same day as these calls, a commercial truck was searched at Port Huron, Michigan. The truck contained frozen pastries. It was also found to contain cardboard boxes which held 58 kgs of marijuana. When the truck was released and taken to a warehouse in Tennessee, it was unloaded. During this process, another 180 kgs of marijuana were located, totaling 238 kgs or 523 pounds of marijuana.
[26] On June 17, 2003, at 6:25 a.m. a conversation took place between Gill and Makkar where, among other things, Gill asked whether “he get caught”? Gill said: “I had fuckin’ fear buddy”. They then speak about a “random check” and the fact that it may be publicized and that they shouldn’t tell.
(iv) Seizure of 205 kgs of marijuana, Port Huron, Michigan: July 12, 2003
[27] On July 7, 2003, Gill was intercepted speaking with “Dan”. They appear to be discussing a shipment, Philly, and moving soon. Gill was then intercepted speaking with Dung Duc Vu about whether Vu would go to Philadelphia. Gill told him to go on July 9, 2003. On July 9, Mr. Gill was intercepted speaking with Makkar about various locations in the United States, including Boston, Philadelphia, Miami, Mississippi and Chicago.
[28] On July 12, 2003, Gill was intercepted speaking with Makkar about a load with “auto parts”. They also discussed certain markings. Gill said: “MPs, those … are Mississippi and the ones which are MAs, those are Miami.” A truck was stopped and searched on July 12, 2003, at the Port Huron, Michigan border. Nineteen cardboard boxes were found with 205 kgs of marijuana in them. This was followed by a 5:02 a.m. call on July 13, 2003, between Gill and Makkar. The conversation was lengthy and establishes Gill’s displeasure with Makkar for what he perceived to be missteps on Mr. Makkar’s front.
(v) Ecstasy: May 30 and 31, 2003
[29] A conversation between Gill and Vu was intercepted on May 30, 2003. Gill told Vu that he would give him an additional $10,000 “if is not going today”. Vu said that he wanted to “add …. ten thousand candy”. An officer from the United States, with expertise in drugs, will testify that the word “candy” is commonly used to refer to ecstasy pills because they are coloured and feature various cartoon shapes on them.
[30] Later in the same day, Vu and another were intercepted discussing “fifteen shirt buttons” and a hundred “rice noodles”. The officer above will testify that in his experience as a narcotics investigator, this is a reference to ecstasy pills and marijuana.
[31] Gill was further intercepted on May 30, 2003, directing Babu to two people who had arrived at a Tim Horton’s near Pearson airport. A short while later, Gill was in conversation with Pannu, discussing how many candies a person was to be picking up at the same time as Babu was at the Tim Horton’s. Gill was later intercepted discussing the amount of candy and the destination of the shipment. The same officer will testify that the amounts discussed refer to 110 pounds of marijuana and 15,000 ecstasy pills.
[32] There were calls on May 31, 2003 that suggest that the recipient of the drugs in the United States was one thousand ecstasy pills short. A Dung Lnu is intercepted speaking with Vu and telling him that: “The other things is only fourteen … Nine ah, nine in blue color, okay? Five ah, ah, three letters”. On June 2, 2003, Gill and Vu were intercepted and appear to be discussing the missing 1,000 ecstasy pills. Gill promised to look into the matter.
(vi) Search warrant executed on the Gill home: July 23, 2003
[33] The evidence also reveals that Mr. Gill’s home was searched under warrant and $2,195,895 Canadian and $1,238,024 US funds were found secreted behind a false wall. The evidence reveals that Mr. Gill was home at the time of this search.
Conclusion
[34] I am satisfied that the above evidence is reliable and available for trial. The ROC reveals that even the wiretap and search warrant affiant is available for trial.
[35] The intercepted conversations provide evidence that Mr. Gill was involved in a drug conspiracy. Through a combined effect of the intercepted calls and their temporal nexus to various drug seizures, there is evidence of an agreement to traffic in illicit substances. The intercepted calls and corresponding seizures, provide evidence that Mr. Gill not only knew of this agreement, but that he intended to join it and had knowledge that the objective was to put it into effect.
[36] Coming back to the s. 29(1)(a) test, there is some evidence upon which Mr. Gill could be committed to trial in Canada for the offence of conspiring to traffic in Schedules I and II drugs contrary to s. 5(1) of the CDSA.
[37] As for the second prong of the s. 29(1)(a) test, I am satisfied on a balance of probabilities that the person before the court is Arpinder Gill. I have reviewed a photograph of Mr. Gill, contained at Appendix “A” to the ROC, and it reflects the same person as before the court.
[38] Mr. Gill is committed to await surrender to the United States for the offence set out in the ATP.
FAIRBURN J
Released: July 31, 2015
COURT FILE NO.: EX 542/14
DATE: 2015 07 31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Applicant / Requesting State
- and -
ARPINDER GILL
Respondent / Person Sought
REASONS FOR COMMITTAL
FAIRBURN J
Released: July 31, 2015