Court File and Parties

COURT FILE NO.: EX 181/16 DATE: 2017-01-31

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA – and – JIANGHONG WANG a.k.a. Jason Respondent

COUNSEL: E. KRIVEL, for the Crown A. HERSCOVITCH, for the Respondent

HEARD: December 20, 2016.

McWatt, J.

[1] The United States of America requests the extradition of Jianghong Wang from Canada for prosecution of sexual assault contrary to section 271 of the Criminal Code.

[2] The respondent concedes that he is the person sought and that the evidence of each complaint is sufficient to establish that the corresponding Canadian offence of sexual assault (s.271) has been committed against them. However, he submits that the evidence as disclosed in the Record of the Case (“R.O.C.”) does not provide a sufficient basis to commit him for trial on any of the alleged offences because it “would” not allow a reasonable, properly instructed jury to find that he is the person who committed the sexual offences against any of the complainants.

[3] The respondent’s position is particularized in his factum as follows:

The only identification of the respondent disclosed in the R.O.C. consists of several complainants identifying him from a photo they saw in a news story describing the respondent as the person who sexually assaulted clients at BLG Massage. In the absence of any other identification procedure, this is the equivalent of a police “show-up” where a complainant is shown a single photo of the person identified to them as the suspect. Experience has taught us that this type of identification is manifestly unreliable to the point of having no probative value.

Two of the complainants state that the massage therapist who sexually assaulted them identified himself by the name “Jason”. There is no evidence disclosed in the R.O.C. that the respondent has ever used the name “Jason”. In fact, one complainant states that she received a foot massage from “Jianghong” where nothing improper occurred, then returned on another day and received a massage from “Jason” where she was assaulted. There is no suggestion in the R.O.C. that she received the massage from the same person on both days. As such, the name “Jason” provides no evidence in support of the assertion that the respondent committed these offences, and indeed, provides potentially exculpatory evidence in respect of one of the complainants.

Two complainants describe the masseur who assaulted them as an Asian male with average build, and one complainant describes the masseur as an Asian male with slim build. The respondent can best be described as an Asian male with above average to large build at the time of his detention in February 2016. The R.O.C. provides no evidence about the number of massage therapists at BLC Massage or how many of them are Asian. Thus, the generic and potentially inaccurate description carries virtually no probative value in assessing whether it is the respondent who provided the massages when the assaults occurred.

The Crown seeks the committal of the respondent on one count of the corresponding Canadian offence of sexual assault (Criminal Code s. 271). A count of sexual assault in Canada must be particularized to an individual complainant. In the event that this Court finds that there is sufficient evidence to commit the respondent for extradition in relation to one or more of the complainants, but not others, the doctrine of specialty requires that the respondent only stand trial in respect of those particular complainants.

The Facts

[4] The R.O.C. contains the following facts:

[5] Patrice Perrier is expected to testify that she attended BLC Massage in Suwanee, Georgia on December 10, 2015 for a massage. The masseur was an Asian male with dark hair and average build, who she subsequently identified from a photograph as Mr. Wang. His photo is attached to the R.O.C.. She undressed leaving on only her underwear. During the massage, Mr. Wang:

• Touched the sides of her breasts and repeatedly pressed his clothed penis into her resting hands.
• After he repeatedly asked her to remove her underwear, which she refused to do, he removed it without her consent.
• While massaging her legs and upper thighs, he inserted his finger into her vagina. She sat up, told him to stop and he did.
• The massage continued with him straddling her while he massaged her back. He then began gyrating his genitals against her buttocks. She reached behind her back to grab him to make him stop, and felt his pants’ waistband which was pulled down slightly and felt what she believed to be his pubic hair and penis. She got up, dressed and left.
• Ms. Perrier was very uncomfortable, felt guilty, embarrassed and concerned about telling other people what had occurred.
• While watching the news with her husband in late February, 2016, she saw a report on a masseur at BLC Massage accused of sexually assaulting clients and she recognized Mr. Wang’s picture as the masseur who had assaulted her. The news report urged those with information to contact Detective Dustin Devereaux of the Suwanee police. She reported to the Detective what had happened to her. The photo shown on the news is attached to the R.O.C..

[6] Cristin Carpenter is expected to testify that on January 16, 2016, she went to BLC Massage in Suwanee, Georgia for a foot reflexology massage. She signed the log book which listed her requested service as “feet” and the therapist as “Jianghong”. She received a foot treatment with no incident. She returned on January 21st with her boyfriend. They were shown separate rooms. She undressed leaving on only her underwear. She subsequently identified the person who gave her the massage, called “Jason”, as Mr. Wang from a photo (attached to the R.O.C). He was Asian with average build and black hair:

• At Mr. Wang’s request during the massage, she removed her underwear as he claimed it hampered his ability to give her a massage. Throughout the massage, he repeatedly pushed his clothed penis into the palm of her hand, touched the sides of her breast, touched the exterior of her vagina, then inserted his finger into it.
• She closed her legs to stop him, he pushed her legs open, she put her hand over her vagina and told him to stop. At the conclusion, he provided her with a business card with the name “Jason”.
• She didn’t report the incident as she was embarrassed, but she ultimately informed her family and reported it to Detective Devereaux. He interviewed her on February 25, 2016 after she had seen a news report indicating a BLC Massage masseur had been arrested for sexually assaulting clients. She recognized the photo shown on the report as “Jason”, which is the photo of the respondent attached to the R.O.C.. She realized her incident was not isolated and that it had happened to other people.

[7] Stephanie Wright is expected to testify that she went to BLC Massage on January 30, 2016 and signed the massage log book. She was shown into a room by a male who told her to undress, including taking off her underwear and lying on the massage table.

• Eight times during the massage, he rubbed his clothed penis into the palm of her upturned hand and she attempted to move her hand away. He also touched the sides of her breasts.
• He occasionally brushed against her vagina when massaging her lower body, and at one point, used his hand to touch the inside of it. When it was apparent the contact was not accidental, she told him to stop massaging that area.
• She didn’t report the incident because she felt confused, angry and violated. She reported the incident to Detective Devereaux after seeing a news article with the picture of the masseur who assaulted her. The photo was that of Mr. Wang, attached to the R.O.C..

[8] Gabriella Anderson is expected to testify that she purchased a coupon for an hour long massage at BLC Massage. When she went there on January 29, 2016, she was only able to get 30 minutes and was told to come back another day for the remaining 30 minutes. When she returned on February 1, 2016, the massage was performed by “Jason” an Asian male with slim build of average height and weight. He offered her an additional 30 minutes free. She will testify that:

• When she undressed, except for her underwear, and lay face down on the massage table, Jason told her to remove the underwear. When it was mid-thigh, he grabbed it, pulled it off her legs and threw it on a chair.
• During the massage he repeatedly pulled her shoulder exposing her chest and stroked her breast and rib area, including brushing her nipples. He repeatedly pushed his erect or partially erect clothed penis in her hand.
• He spread her legs and kneaded her buttocks apart exposing her anus and vagina. While massaging between her legs, he rubbed her vagina a couple of times and rubbed her clitoris. She told him to stop touching her vagina.
• At the end of massage, after Jason left the room, she cried while dressing. When paying, Jason told her the additional time was “forty” not “free”. She paid without arguing as she wanted to leave as quickly as possible. Jason provided a business card which she tore up after leaving because she was disgusted with the experience.
• Not having had a massage before, she didn’t want to report the incident to the police because she was uncertain if what she experienced was normal. But, after telling her mother and boyfriend, she reported the incident.
• On February 27, 2016, she reported the matter to the police after reading online about someone else’s similar experience. She determined it was necessary because she didn’t want anyone else to go through what she had.

[9] Detective Dustin Devereaux of the Suwanee Police Department is expected to testify that:

• He was assigned the sexual assault case involving allegations made by Gabriella Anderson asserting she had been inappropriately touched during a massage at BLC Massage.
• The city of Suwanee, Georgia business records indicate Jianghong Wang completed an Application of Occupational Tax Certificate as a new owner to operate under the business entity “Relaxing Centre Massage LLC, Blessing Life Case Spa”.
• Business records indicate Jianghong Wang was licensed through the Secretary of State of Georgia as a message therapist.
• A review of Mr. Wang’s massage logs which the respondent produced to the police on February 10, 2016 indicate that:
  • January 16, 2016: Cristin Carpenter, therapist “Jianghong Wang”
  • January 21, 2016: Michael Slocum (Cristin Carpenter’s boyfriend), no therapist listed
  • January 29, 2016: Gabriella Anderson, therapist “Xinmiao (female therapist) [Gabriella Anderson’s first visit]
  • January 30, 2016: Stephanie Wright, therapist, “JH”
• After a news story ran on television and in the newspaper with a picture of Mr. Wang, listing the offences he was charged with, Detective Devereaux was contacted by a number of victims who alleged similar conduct, including Patrice Perrier, Cristin Carpenter and Stephanie Wright.
• There is available as evidence, a copy of an airline ticket purchased by Jianghong Wang showing travel from Tijuana, Mexico to Mexico City to Toronto and then to Beijing, China.
• The R.O.C. indicates that Jianghong Wang has the alias Jason; date of birth February 2, 1974; was born in the People’s Republic of China and has citizenship there; has brown eyes, black hair, 5’8” and weighs 170 lbs.
• Officer Devereaux reviewed the photo attached to the R.O.C. marked Inmate photograph and indicated it is the same person he interviewed on February 10, 2016.

Legal Principles

Purpose and Jurisdiction

[10] The purpose of extradition is to facilitate a trial on the merits in the country where the person sought is charged. There must be a prima facie case to answer for a committal to be ordered (U.S.A. v. M.M., 2015 SCC 62 at para. 15; United States of America v. Dynar, [1997] 2 S.C.R. 462 at para. 85 and 121; U.S.A. v. Cotroni; U.S.A. v. El Zein, [1989] 1 S.C.R. 1469 at para 27, 28).

[11] The jurisdiction of this Court is limited. The Supreme Court of Canada explained it in R. v. M.(M)., at para 26:

The committal phase of the extradition process serves an important but circumscribed and limited screening function. The role of the extradition judge is simply to decide whether he or she is satisfied that the person before the court is the person sought and where “there is evidence admissible under [the Extradition Act and available for trial] 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.

[12] Section 29(1)(a) of the Act sets out the test for committal. First, the extradition judge must be satisfied that the person is the person sought by the extradition partner. The respondent concedes this. And, second, the judge must be satisfied that evidence admitted under the Act would justify committal for trial in Canada on the offence set out in the authority to proceed (ATP).

[13] Extradition hearings are not meant to be trials, but are intended to be expeditions procedures to determine whether a trial should be held in a foreign jurisdiction, (Dynar, at para 38). The process is intended to “ensure prompt compliance with Canada’s international obligations (Dynar, at para. 122).

[14] The extradition judge, like the preliminary inquiry judge, is not to be concerned with the ultimate guilt or innocence of the person sought (R. v. Thomlinson 2007 ONCA 42, [2007], 216 C.C.C. (3d) 97 at para 47). And, like the preliminary inquiry judge, the extradition judge is not concerned with defences or other matters on which the accused bears an evidential or persuasive burden (M.M. at para. 65).

Test for Committal

[15] In U.S.A. v. Ferras, 2006 SCC 33, [2006] 2 S.C.R.77, the Supreme Court of Canada allowed for a consideration of threshold reliability of the evidence summarized in the R.O.C.. In M.M., however, the Supreme Court went on to clarify that the statutory role of the extradition judge has not changed since Ferras. The Court explained that the extradition judge is “concerned with whether the underlying facts of the charge would, prima facie, have constituted a crime … if they had occurred in Canada (M.M. at para.65), and that Ferras does not:

• Envision weighing competing inferences that may arise from the evidence, other than in the limited sense noted in Arcuri of considering that the inferences sought to be drawn from circumstantial evidence are reasonable.
• Contemplate that the extradition judge will decide whether a witness is credible or his or her evidence is reliable beyond determining that the evidence is not “so defective” or “so unreliable” that it should not be given any weight.
• Call upon the extradition judge to evaluate the relative strength of the case put forward by the requesting state. There is no power to deny extradition simply because the case appears to the extradition judge to be weak or unlikely to succeed at trial.

[16] The Supreme Court went further, saying that Ferras does require the extradition judge to remove evidence from consideration that appears to the judge to be so defective or so unreliable that it should be disregarded. This may be the result of problems inherent in the evidence itself, problems that undermine the credibility or reliability of the source of the evidence, or a combination of those two factors (M.M. at para. 61-72).

[17] As such, as long as there is some direct evidence of the essential elements of the Canadian offences specified in the ATP, or some circumstantial evidence from which a trier of fact could reasonably draw an inference of guilt, the extradition judge must commit. Moreover, where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered”. (R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at para. 29 and 30).

Rules of Evidence at the Extradition Hearing

[18] Section 32 of the Act sets out the type of evidence admissible at the committal hearing. Specifically, documents contained in the R.O.C. and any supplements are admissible. Section 34 specifies that they need not be solemnly affirmed or under oath.

[19] Rosenberg J.A., in U.S.A. v. Yang, (2001), 157 C.C.C. (3a) 225 at para. 51-52, dismissed a constitutional challenge to sections 32, 33 and 34 of the Act on this basis. The appellant had contended that the Act required the extradition judge to admit unreliable, unsworn evidence and this violated the guarantee to fundamental justice in s. 7 of the Charter of Rights. His Honour noted:

“the extradition hearing has moved very far from the typical Canadian trial or preliminary inquiry”.

[20] Consequently, even fifth hand hearsay, non-expert opinion and prejudicial character evidence” may be admissible. Rosenberg J.A. emphasized that it is not the Canadian domestic paradigm that ought to be engaged to assess this approach. At paragraphs 51 to 52, His Honour set out the following about the admission of these types of evidence:

This is disturbing only when viewed through the lens of the Canadian system and its paradigm of the jury trial. If such evidence is admissible in our extradition partners it is because their experience is that this kind of evidence can be weighed by the judicial official and will be accorded the weight it deserves. It is not for this country to assume that it alone knows how to arrive at a true verdict.

[21] For this reason, s. 32 of the Act establishes an evidentiary regime quite different from the rules of evidence applicable in domestic criminal proceedings:

32. (1) Subject to subsection (2), evidence that would otherwise be admissible under Canadian law shall be admitted as evidence at an extradition hearing The following shall also be admitted as evidence, even if it would not otherwise be admissible under Canadian law: (a) the contents of the documents contained in the record of the case certified under subsection 33(3); (b) the contents of the documents that are submitted in conformity with the terms of an extradition agreement; and (c) evidence adduced by the person sought for extradition that is relevant to the tests set out in subsection 29(1) if the judge considers it reliable [Emphasis added]

[22] Section 33 sets out the requirements of the R.O.C.:

33. (1) The record of the case must include (a) in the case of a person sought for the purpose of prosecution, a document summarizing the evidence available to the extradition partner for use in the prosecution. (2) A record of the case may include other relevant documents, including documents respecting the identification of the person sought for extradition. (3) A record of the case may not be admitted unless (a) in the case of a person sought for the purpose of prosecution, a judicial or prosecuting authority of the extradition partner certifies that the evidence summarized or contained in the record of the case is available for trial and i. is sufficient under the law of the extradition partner to justify prosecution, or ii. was gathered according to the law of the extradition partner… (4) no authentication of documents is required unless a relevant extradition agreement provides otherwise. (5) For the purposes of this section, a record of the case includes any supplement added to it.

[23] Section 33(1) allows for the inclusion of summaries in a R.O.C. (United States of America v. Lee, 2009 BCCA 728 at para. 16, 17; United States of America v. Yu et al. 2011 ONSC 2777 at para. 114-117). Once it is established that the documents submitted are in a R.O.C., certified in conformity with the provisions of the Act or the terms of the applicable extradition agreement, the enquiry into admissibility is complete. The contents of those documents shall be admitted into evidence, without a right of cross-examination, even if they are unsworn or are not in affidavit form.

[24] In Ferras, the Supreme Court of Canada upheld the constitutionality of the evidentiary provisions of the Act (ss. 32 and 33) and held that the expansive admissibility rules applicable to the R.O.C do not violate the Charter rights of the person sought (para. 50).

Analysis

[25] The respondent is suggesting that I should assess the cumulative eyewitness identification in this case and find that the charges against him would never be proved beyond a reasonable doubt or would not allow a reasonable, properly instructed jury to find the respondent is the person who committed the sexual offences against any of the complainants.

[26] That is not the test. The test for committal for trial is whether there is any admissible evidence that could (not would), if believed, result in a conviction (R. v. Sheppard, [1977] 2 S.C.R. 1067 at para. 1080; R. v. Arcuri, at para. 54). There is no incorporation of a beyond reasonable doubt standard in the test for committal in an extradition. The hearing is not a trial.

[27] The respondent complains that his photo was posted in a local newspaper and he was named and described as a person who sexually assaulted a woman in the massage clinic. As a result, 3 of the 4 complainant’s came forward to police. He maintains that this evidence should be given “little weight” on the issue of eyewitness identification pursuant to the Supreme Court of Canada’s ruling in R. v. Hibbert, [2002] S.C.R. 415 at para. 50. It is no better than an in dock identification and, in fact, taints the whole proceedings.

[28] The respondent relies on the extradition case of R. v. Walker, 2008 BCCA 55, [2008] B.C.J. No. 349 for the proposition that where the R.O.C. provides insufficient evidence or unanswered crucial questions in a case where identification is the only or main issue for committal, a judge may be deprived of the ability to determine whether the Crown had a “plausible case”. In the case, the Court referred to the standards of law and procedure on eyewitness identification developed in Canada (para. 24-31).

[29] The Walker case involved a murder and assault with a weapon. The prosecution case depended on the evidence of a single eyewitness who witnessed the shooting then was shot at himself. He later identified Mr. Walker in a six-photo montage. That montage was not appended to the R.O.C., but a single photo of Walker was attached. The Court found that the evidence in the R.O.C. was insufficient to gauge whether procedures followed by the U.S. police measured up to the safeguards required in an eyewitness identification case because it lacked information about how Mr. Walker was identified.

[30] That case is distinguishable from Mr. Wang’s case.

[31] The case of U.S.A. v. Asiegbn, 2008 BCSC 1707 [2008] B.C.J. No. 2437 is more instructive. In that case, a prima facie case of proof Mr. Danielson was the person who had committed fraud was proved by personal information in the R.O.C. matching the respondent, including his general physical description and his address. The Canadian officer who arrested Danielson, identified him by the name he gave the officer and the information in his driver’s licence, which matched the R.O.C. evidence.

[32] In this case, there is more than a questionable photo identification. It cannot be said here that the identification is so defective and unreliable that it should be discarded (Ferras, para. 54).

[33] Ms. Anderson alleges she was sexually assaulted by “Jason” on February 1, 2016. She reported the offence to police February 7, 2016. Officer Devereaux met with Mr. Wang and reviewed the massage clinic logs on February 10, 2016. He confirmed the logs were accurate – the complainants had attended the clinic on dates they said they attended. Detective Devereaux identified Mr. Wang as the person he interviewed, who owned the clinic and who was licenced by the state to perform massages. I have drawn the inference that, as a result of Ms. Anderson’s report of the sexual assault and Detective Devereaux’s investigation of Mr. Wang, the officer identified Mr. Wang as the person who committed all the sexual assaults.

[34] The fact that the remaining three complainants, Patrice Perrier, Cristin Carpenter and Stephanie Wright came forward after identifying Mr. Wang as the man who sexually assaulted them, based on his photograph on the television and in a local newspaper, does not, in my opinion, weaken the case for committal.

[35] Viewed in its entirety, the case meets the threshold for committal for the following reasons:

1. The offences all took place in Mr. Wang’s massage premises. He owned and operated it and worked as a massage therapist at the business. The offences all took place from December 10, 2015 to February 1, 2016;
2. The assaults were similar which could allow for a reasonable inference that the same person committed them;
3. The independent identification by the three complainants of Mr. Wang’s photo is evidence that he committed the offences. There is no evidence that the women knew each other. There is also no evidence of prompting the complainants in there identification of the photograph. The eyewitness identification would not have been fleeting. There is evidence that each session of massage was 60 minutes long. The identifications were not made a long time after the incidents, but within a couple of months from December 10, 2015 (Ms. Perrier) to February, 2016 when the photo of Mr. Wang was published;
4. To some extent, the physical identification of the perpetrator is similar from Ms. Perrier, Mr. Carpenter and Ms. Wright. Again, these descriptions are independent evidence of identification – one complainant from the other;
5. Ms. Perrier identifies the perpetrator as “Jian”, which is part of the respondent’s name. The inference to be drawn from this is “Jian” is Mr. Wang.
6. Ms. Anderson did not identify a photograph of Mr. Wang as the perpetrator of the offence against her, but she told police the man identified himself as “Jason”. The same name – “Jason” – was used on a business card by the perpetrator of the sexual assault against Ms. Carpenter. There is a link between these two complainants which supports the inference “Jason” is Mr. Wang. Ms. Carpenter identified the person she knew as “Jason” from the published photograph of the respondent.

[36] There is more than sufficient admissible evidence to conclude that there is a prima facie case for the respondent to answer contained in the R.O.C. There is no need to address the respondent’s request that I assess the strength of each complainant’s evidence in light of the identification issue and then particularize the ATP to include only the complainants whose evidence meets the threshold for committal. The evidence satisfies me that the evidence, considered altogether, requires a committal on “sexual assault, contrary to section 271 of the Criminal Code.”

[37] The application is granted.

McWatt

Released: January 31, 2017.