Court File and Parties

COURT FILE NO.: 1949/16 DATE: 2017 07 20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

AG OF CANADA (on behalf of the United States of America) A. Rice, for the Plaintiff Plaintiff

- and -

COLIN LEVY, a.k.a. “Iley Dread”, a.k.a. “Filed”, a.k.a. “Dread” J. Struthers, for the Defendant Defendants

HEARD: June 12, 2017

JUDGMENT

Extradition Hearing André J.

[1] The United States of America (USA) has requested the extradition of Colin Levy for his alleged involvement in the sale and distribution of an illegal substance known as MDMA and the importation of cocaine into Florida. The Canadian Minister of Justice had issued an Authority to Proceed (ATP) pursuant to section 15 of the Extradition Act, S.C. 1999, c. 18, which authorizes the Attorney General of Canada to seek an order for Mr. Levy’s committal for extradition to the USA. Mr. Levy’s counsel submits that such an order is unwarranted in this case given the paucity of identification evidence linking Mr. Levy to any of the offences he is alleged to have been involved in.

SUMMARY OF THE EVIDENCE AGAINST MR. LEVY

[2] Luloma Cooper advised police authorities that in 2009 she participated in an illegal scheme orchestrated by Mr. Levy and others, which involved the selling of MDMA, or ecstasy, and the importation of cocaine. She advised that on September 23, 2009, September 26, 2009, September 27, 2009, September 28, 2009 and October 2, 2009, she rented a number of hotel rooms with Mr. Levy and stayed there with him. On those days Mr. Levy and herself supplied large amounts of MDMA to an accomplice named Morris Henderson (“Mr. Henderson”). Hotel records confirmed that Ms. Cooper rented the rooms on the indicated dates.

[3] Ms. Cooper confirmed a number of telephone records between herself, Mr. Levy and Mr. Henderson.

[4] On September 23, 2009, and again on September 28, 2009, Ms. Cooper gave Mr. Henderson 2000 MDMA pills at the direction of Mr. Levy.

[5] Ms. Cooper was subsequently shown a photograph of Mr. Levy by the police. She identified it as an accurate depiction of the person she knew as “Iley Dread” and the one who gave her the MDMA pills to transfer to Mr. Henderson.

[6] Christopher Smith, a Special Agent of the U.S. Drug Enforcement Administration (“DEA”), was assigned to investigate a drug distribution and importation scheme involving Mr. Henderson. He obtained a court order to intercept Mr. Levy’s cellular telephone.

[7] Mr. Smith intercepted a number of calls between Mr. Levy and Mr. Henderson which appeared to have been drug related. Wiretap evidence linked Mr. Henderson to an illegal drug distribution scheme in which Mr. Henderson supplied MDMA to local distributors who then distributed the drug to local dealers.

[8] On November 7, 2009, law enforcement agents recovered five bags of MDMA pills in a vehicle driven by Mr. Henderson. He was arrested a short time later. He subsequently began to cooperate with the police investigation.

[9] On February 1, 2010, Mr. Smith was part of a team conducting surveillance of Mr. Levy and an associate. They followed the two to a Florida hotel previously used by Ms. Cooper to distribute MDMA. The two met another male in the hotel’s parking lot. The unknown male and Mr. Levy’s companion followed Mr. Levy’s vehicle to his house. Upon arrival Mr. Levy was seen making furtive movements in the back of the vehicle driven by the unknown male. He was then seen placing a suitcase in the back seat of this vehicle. He later placed it into the trunk of the vehicle. The vehicle was then driven away by a female. Police later conducted a traffic stop on this vehicle and subsequently recovered 6,000 ecstasy pills in a suitcase in the trunk. Agent Smith later identified Mr. Levy’s photograph as that of the male he had seen years ago placing a suitcase in the back seat of the vehicle where the 6,000 ecstasy pills had been found.

COCAINE IMPORTATION

[10] Luloma Cooper flew from Florida to Costa Rica on November 1, 2009 with two other women. In Costa Rica an associate of Mr. Levy provided them with cocaine to smuggle into the USA. The drugs were concealed in the underpants worn by the three women.

[11] The three women returned to Florida with the narcotics. Cooper then delivered the drugs to Mr. Levy who paid her U.S. $3,000.

[12] Ms. Cooper flew to Costa Rica on December 9, 2009 with the other females. The day before, Mr. Levy gave her two heat-sealed packages with an unknown amount of money. He also gave her U.S. $3,000 as a down payment for her role in importing cocaine.

[13] In Costa Rico Ms. Cooper contacted Mr. Levy’s associate who was called “Rappa”. She gave him the two packages which Mr. Levy had given to her. On December 13, 2009, Rappa gave Ms. Cooper and her two companions cocaine filled underwear which he asked them to put on. At the airport, Ms. Cooper and her companies were detained and then subsequently searched. The drugs were discovered. A Costa Rican chemist later tested the drugs and confirmed that it was cocaine. The package recovered from Ms. Cooper weighed approximately 1,262 grams, while that recovered from one of her companions weighed 1,341 grams. The third female was not charged; however a search of a washroom which she had entered led to the recovery of 1,200 grams of cocaine packaged in the same manner as that found on Ms. Cooper and her companion.

GOVERNING PRINCIPLES

[14] Section 246 of the Extradition Act requires a court to have an extradition hearing upon receipt of an ATP.

[15] Section 29(1)(a) of the Act provides that a court must then decide whether or not there is evidence “of conduct that had it occurred in Canada, would justify committal for trial in Canada on the offences set out” in the ATP. The court must also be satisfied on a balance of probabilities that Mr. Levy is the individual sought by the extradition party: M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at para. 15.

[16] An extradition judge may engage in a limited weighing of evidence to exclude evidence that is manifestly unreliable: see United States v. Ferras, 2006 SCC 33, [2006] S.C.R. 77, at paras. 53 and 54. If the evidence is so defective or unreliable that the judge concludes it would be dangerous or unsafe to convict, then the case should not go to a jury and is therefore not sufficient to meet the test for committal. Ferras, at para. 54.

[17] There is a high evidentiary threshold to be met for a conclusion that evidence is “manifestly unreliable”. As noted by Doherty J.J.A. in United States of America v. Anderson, 2007 ONCA 84, 85 O.R. (3d) 380, at para. 33:

[W]here much of the evidence came from a co-conspirator, the mere fact that evidence relied on by the requesting state has potential significant weaknesses, or comes from sources that are less than pristine, cannot justify totally discounting that evidence when determining whether the requesting state has met the test for extradition.

[18] In United States v. Tomlinson, 2007 ONCA 42, 84 O.R. (3d) 161, at para. 45. Moldaver J.A. (as he was then) noted the following:

Ferras now authorizes extradition judges to assess the availability and quality of the evidence that can legitimately be included in the "some evidence" basket for sufficiency purposes. In my view, that enables them to discard evidence that is not realistically available for trial and/or evidence that is manifestly unreliable, i.e., evidence upon which it would clearly be dangerous or unsafe to convict. It does not allow extradition judges to refuse to commit where there is "available and reliable" evidence in the "some evidence" basket upon which a reasonable jury, properly instructed, could convict.

ANALYSIS

[19] This application raises the following issues:

(1) Is there evidence of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offences set out in the ATP? (2) Has the Crown (i.e. the requesting party) proven on a balance of probabilities that Mr. Levy is the individual sought by the extradition party?

ISSUE NO. ONE: Is there evidence of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offences set out in the ATP.

[20] This issue raises two questions, namely:

(1) Does the conduct set out in the ATP constitute offences in Canada?; and (2) Does the evidence presented by the Crown justify committal for trial in Canada on the offences set out in the ATP?

[21] Regarding the first question, the conduct set out in the ATP constitutes offences under sections 5(1) and 6(1) of the Controlled Drugs and Substances Act in that they involve trafficking of a Schedule I controlled substance and conspiracy to import a Schedule I controlled substance i.e. cocaine.

[22] The second question involves the sufficiency of the evidence relied upon by the requesting party and a determination of whether it justifies committal for trial in Canada on the offences set out in the ATP.

[23] Mr. Levy’s counsel submits that it does not. He submits rather forcefully that credible, reliable and probative evidence that Mr. Levy was the person involved in the impugned conduct does not exist in this case. He notes further that there is not a scintilla of evidence regarding the circumstances, duration, location and the observation made either by Ms. Cooper or Special Agent Smith regarding their identification of Mr. Levy. He relies on the case of United States of America v. Walker, 2008 BCCA 55, 56 C.R. (6th) 150, at para. 30, for the proposition that: “When it cannot be determined whether the eyewitness identification is dangerous or unsafe – because the summary is incomplete – then the requesting state has not met its burden”. Mr. Levy’s counsel insists that a single photo identification in this case, as in Walker, is manifestly unreliable.

[24] Walker, however, is distinguishable from this case in one important respect: it involved the identification of a photograph by someone who had never seen the subject before. Indeed, in United States of America v. Khuc, 2008 BCCA 425, 262 B.C.A.C. 4, at para. 31, the same court cautioned at para. 31 that:

In Walker, this Court noted the difficulty with identification based on a single photograph, but it is clear that this alone does not make the evidence inadmissible or render it unsafe. While this Court did not allow the appeal in Walker, it was not because identification had been based on a single photograph; it did so because it was unable to tell on what the identification had been based.

[25] Additionally, the Court of Appeal noted in R. v. Liebhardt, [2006] O.J. No. 1239 (Q.L.), at para. 2, that identification evidence based on “a single photograph rather than a line-up is a factor to be weighed by the trial judge. It does not … render the evidence incapable of supporting a conviction.” (noted in Khuc, at para. 32).

[26] In this case, the court is in a position to ascertain on what evidence the identification is based. Ms. Cooper had known Mr. Levy prior to identifying his photograph. She had stayed with him at hotels on numerous occasions. He had allegedly given her drugs to sell and had also given her money. Special Agent Smith did not identify Mr. Levy’s photograph after a fleeting view or passing glance. He had conducted surveillance of Mr. Levy. He had therefore made it his business to make mental notes about Mr. Levy’s facial features. Undoubtedly, his credibility will be tested at trial. However, his evidence linking Mr. Levy to the impugned conduct cannot be described as manifestly unreliable and therefore incapable of being relied upon by a trier of fact.

CONCLUSION

[27] I find that the evidence of identification constitutes prima facie evidence that Mr. Levy is the person who committed the alleged conduct outlined in the extradition request and that he is, on a balance of probabilities, the person whose extradition is sought by the United States. Accordingly, I find that the evidence presented by the Crown is sufficient to justify an order for committal on the Authority to Proceed. To that extent, Mr. Levy is ordered committed to await surrender under s. 29 of the Extradition Act.

André J. Released: July 20, 2017