COURT FILE NO.: EX
DATE: 20180620
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Applicant
– and –
SAMUEL STEPHEN EBANKS
Respondent
Adrienne Rice, for the Attorney General of Canada
Alexandra Mamo, for the Respondent
HEARD: June 7, 2018
REASONS FOR JUDGMENT
faieta j.
[1] The Attorney General of Canada on behalf of the United States of America brings this application for the committal of the Respondent into custody pursuant to section 29 of the Extradition Act, S.C. 1999, c. 18 (the “Act”).
[2] The Minister of Justice issued an Authority to Proceed against Samuel Stephen Ebanks on June 27, 2017 pursuant to section 15 of the Act. It states:
The Minister of Justice authorizes the Attorney General of Canada to proceed before the Superior Court of Justice to seek an order for the committal of Samuel Stephen Ebanks who is being sought for prosecution by the United States of America. The Canadian offence which corresponds to the alleged conduct is:
• Murder, contrary to section 235 of the Criminal Code.
[3] The Certification of Record of the Case prepared by Katrin Novak Miller, Senior District Attorney General, Office of the District Attorney General, 20^th^ Judicial District, Nashville, Davidson County, Tennessee, states:
In the Matter of a request by the United States, on behalf of the State of Tennessee, for the extradition of SAMUEL STEPHEN EBANKS from Canada for prosecution.
The United States, on behalf of the State of Tennessee, requests the extradition of SAMUEL STEPHEN EBANKS from Canada for prosecution.
In relation to that request, I, Katrin Novak Miller, Senior District Attorney General for the 20^th^ Judicial District, Nashville, Davidson County, Tennessee, certify that the evidence summarized or contained in the attached documents is available for trial and is sufficient under the laws of the United States to justify prosecution.
[4] The Record of the Case for Prosecution (the “Record”) provides the following Overview:
On December 10, 2010, the manager at Nashville, Tennessee apartment complex discovered the decomposed body of a woman in the unit leased by Vickie Webb. The medical examiner identified Webb through dental records and determined cause of death to be stabbing with a knife to her carotid artery, which occurred at least two to three weeks prior to the discovery. Investigators learned that Webb had not been seen at the apartment complex or by her family since early to mid-November. Webb was in a relationship with Samuel Stephen Ebanks, whose possessions, including his wallet and identification, as well as his fingerprints, were found in Webb’s apartment, where he was living. Investigators learned that on November 14, 2010, EBANKS told his father than he was in trouble, that people were after him, and he had to leave the United States. EBANKS’ father purchased airline tickets for him to Ontario, Canada, where EBANKS’ mother, Maxine Nugent was living. EBANKS arrived in Canada on November 17, 2010. In a March 2, 2011 telephone call with Nashville police, EBANKS admitted to having been with Webb on November 4, 2010, that they fought, Webb was stabbed and there was a lot of blood, and when EBANKS left, he did not know whether she was still alive.
[5] The Record provides further particulars of the March 2, 2011 telephone call:
On March 2, 2011, at approximately 6 PM, Det. Crumby telephoned Ms. Nugent’s home at [redacted by the Court]. When Ms. Nugent answered, he explained introduced [sic] himself, explained that he worked for the NMPD, and asked to speak to EBANKS. Ms. Nugent told Det. Crumby that her son was there and that she would ask him if he would come to the phone. After a few moments, EBANKS got on the phone and answered to the name “Steven”. Det. Crumby then identified himself as a detective with the NMPD and told him that he was investigating Webb’s death. The call was recorded, and the recording, as well as the transcript of the call is expected to be entered into evidence.
When asked about the death of Webb, EBANKS initially denied knowing that she was dead, but later admitted that they got into an altercation when he tried to leave. Later, he stated that there was a knife and a lot of blood, and he was not sure if Webb was alive when he left the apartment, through the living room window.
After speaking with EBANKS, Det. Crumby again spoke with Ms. Nugent, who confirmed that the person he just spoke to was Samuel Stephen EBANKS, born on April 15, 1984, and that she was his mother.
[6] Clause 29(1)(a) of the Act provides that a judge shall order the committal of a person sought for prosecution into custody to await surrender if:
(a) There is evidence admissible under the 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,
(b) The judge is satisfied that the person is the person sought by the extradition partner.
[7] The Respondent concedes that the requirement found in s. 29(1)(b) is satisfied. The Respondent also concedes that the requirement found in s. 29(1)(a) of the Act is satisfied if the evidence provided by the Respondent to Detective Crumby of the Nashville Police Department, by telephone, is admissible. The Respondent submits that such evidence is inadmissible because: (1) it is “evidence gathered in Canada” and therefore, under s. 32(2) of the Act, it must satisfy the rules of evidence under Canadian law in order to be admitted; (2) if s. 32(2) of the Act applies, then such evidence is inadmissible as it infringes ss. 7 and 10(b) of the Canadian Charter of Rights and Freedoms (“Charter”).
[8] For the reasons described below, I have determined that the evidence provided by telephone to Detective Crumby of the Nashville Police Department was not “evidence gathered in Canada” and thus there is no need to consider whether such evidence is inadmissible under Canadian law at this extradition hearing. Accordingly, I have granted the Attorney General’s application and have issued a warrant for committal.
ISSUE: WAS THE EVIDENCE OBTAINED BY TELEPHONE BY A POLICE OFFICER LOCATED IN THE UNITED STATES FROM THE RESPONDENT LOCATED IN CANADA “GATHERED IN CANADA”?
[9] Subsection 32(2) of the Act states:
Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.
[10] The Respondent submits that s. 32(2) applies when a person interviewed by telephone is physically located in Canada and does not depend on the location of the interviewer.
[11] A court must take the following three steps when interpreting a statute:
(a) Examine the words of the provision in their ordinary and grammatical sense;
(b) Consider the entire context that the provision is located within, including the history of the provision at issue, its place in the overall scheme of the Act, the object of the Act itself, and the legislature's intent in enacting the Act as a whole and the particular provision at issue; and
(c) Consider whether the proposed interpretation produces a just and reasonable result, namely, a result that promotes applications of the Act that advance its purpose and avoids applications that are foolish and pointless: see Wawanesa Mutual Insurance Co. v. Axa Insurance (Canada), 2012 ONCA 592, paras. 34 and 35.
Ordinary and Grammatical Meaning
[12] The ordinary meaning of the word “gather” includes “come or bring together; assemble or accumulate”; “bring together and take in from scattered places or sources”: Concise Oxford English Dictionary, Twelfth Edition, Oxford University Press, 2011.
[13] The words “in Canada” modify the verb “gather”. As a result, s. 32(2) applies only when the activity of gathering evidence occurs in Canada.
[14] Evidence that is “gathered” in Canada is evidence that is collected, assembled, or put together in Canada. It is not evidence whose source is in Canada. The subject of the verb “gather” is the recipient of information not the person providing the information. Thus, “… if an American police authority or citizen came to Canada and collected evidence here, the evidence collected here is gathered in Canada and must meet Canadian admissibility standards.”: United States v. Ritter, 2005 ABQB 471, paras. 2, 18.
[15] Similarly, in Vallée c. United States of America, 2006 QCCA 229, the Quebec Court of Appeal, at para. 57, stated:
La doctrine et la jurisprudence insistent pour préciser que ce qui importe au sens de l'article 32(2) de la Loi, c'est le lieu de la cueillette de l'information et non le lieu de la source de l'information recueillie..
[16] The reported unofficial English translation of the above passage is as follows:
Commentary and case law have clearly established that section 32(2) of the Act refers to the location of the gathering of the information and not to the location of the source of the information gathered.
[17] Several courts have found that information obtained by a telephone call made by a police officer in the United States to a person in Canada is not information “gathered in Canada”:
(a) In United States of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462, at paras. 136 and 140, the Supreme Court of Canada found that telephone calls made by a person living in Canada and indicted in the United States on a charge of attempting to launder money, to an associate in Nevada that had been recorded by the Federal Bureau of Investigation in the United States had been “gathered by American authorities, on American soil, for an American investigation”.
(b) In United States v. Martinez, [2000] O.T.C. 131 (S.C.), Justice Juriansz, as he then was, ruled that information provided by a person in Ontario by telephone to an American police officer in California was “information gathered by the American police officer in California”. He stated, at para. 20:
In an age of electronic communication the interpretation of the phrase “evidence gathered in Canada” presents some difficulties. In an earlier age, the act of gathering would take place in the same location as what was being gathered. This is not necessarily the case now. In my view, the focus of s-s. 3(2) is on the location of the activity of gathering and not on the location of the source of the information gathered. [Emphasis added]
(b) The Quebec Court of Appeal in États-Unis d'Amérique c. Delvecchio, [2002] J.Q. no. 4754 ruled that evidence provided by an accused in Canada during a telephone call initiated by an American police officer in the United States was not “evidence gathered in Canada”. The Quebec Court of Appeal, at para. 6, stated:
Contrairement à la prétention de l'appelant, quand un enquêteur américain, aux fins d'une enquête américaine, téléphone des États-Unis à l'appelant au Canada, on doit conclure, dans le contexte de l'art. 32(2), que la preuve n'est pas obtenue au Canada, mais bien dans le territoire américain. Dans l'arrêt United States c. Dynar, 1997 359 (SCC), [1997] 2 R.C.S. 462, la Cour suprême du Canada a affirmé que des conversations enregistrées entre des informateurs se trouvant aux États-Unis et Dynar qui était au Canada (p. 470, supra) constituaient, dans le cadre d'une demande d'extradition, une preuve "gathered" aux États-Unis (p. 521, supra). La Cour a ajouté qu'il importait peu que Dynar n'ait jamais quitté le Canada, ses agissements suffisaient pour l'assujettir à la compétence des États-Unis : "The affidavit evidence submitted by the Requesting State discloses that the evidence was gathered by American authorities, on American soil, for an American investigation". Dans le même sens, voir United States of America v. Martinez [2000] O.J. No. 647 (Ontario Superior Court of Justice, Juriansz J.), par. [21]; voir également KRIVEL, BEVERIDGE et HAYWARD "A practical guide to Canadian extradition" (2002) Carswell, p. 281 et 287. [Emphasis added]
(c) In United States of America v. Thomlison, (2007) 2007 ONCA 42, 84 O.R. (3d) 161, at para. 17, the Ontario Court of Appeal acknowledged that existing case law treated information obtained by a police officer in California from someone that she had called in Canada as “evidence gathered outside of Canada”; and
(d) In United States of America v. Bezeredi, 2008 BCSC 752, information gathered by telephone calls made at the request of the FBI from the United States to employees of the accused Respondent in Canada was found to be evidence gathered in the United States.
Purpose of the Extradition Act
[18] The Act received assent in 1999 and it replaced the Extradition Act, R.S.C. l985, c. E-23. Subsection 32(2) of the Act is a new provision that did not exist in the repealed legislation.
[19] As can be seen from the scheme of the Act, described below, extradition is the legal process under which a state surrenders a person within its territory to another jurisdiction for prosecution or punishment for a crime committed in that jurisdiction. Extradition is founded on “principles of reciprocity, comity and respect for differences in other jurisdictions”: M.M. v. United States of America, 2015 SCC 62, para.15. The Act serves three objectives: (1) to protect the public against crime through its investigation; (2) bring fugitives to justice for the proper determination of their criminal liability; (3) ensure, through international cooperation, that national boundaries do not serve as a means of escape from the rule of law: M.M. v. United States of America, 2015 SCC 62, para.15.
[20] The Act implements, through domestic law, Canada’s international obligations to surrender persons found in Canada so that they will face prosecution, or serve sentences imposed in another country: M.M. v. United States of America, 2015 SCC 62, para. 14.
Scheme of the Extradition Act and Place of Subsection 32(2) in the Act
[21] The general principle is set out in section 3 of the Extradition Act. A person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner for the purpose of prosecuting the person or imposing a sentence on – or enforcing a sentence imposed on – the person if: (1) subject to any relevant extradition agreement, the offence for which extradition is sought is punishable in the requesting state for a maximum term of two years or more or by a more severe punishment; and (2) the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada subject to certain conditions.
[22] The Extradition Act has three stages. The first stage of the Extradition Act provides that the Minister of Justice may issue an authority to proceed, under section 15 of the Act, that authorizes the Attorney General to seek, on behalf of an extradition partner, an order of a court for the committal of a person who has committed an offence mentioned in the request made by the extradition partner. The Minister must be satisfied that the offence for which extradition is sought is criminal in the requesting state: M.M. v. United States of America, 2015 SCC 62, para. 20.
[23] The second stage of the Act is the extradition hearing. Upon receipt of an authority to proceed from the Attorney General, the Court shall hold an extradition hearing: s. 24(1). Given the purposes that underlie extradition, the hearing is not a trial that must be conducted in accordance with domestic trial procedures: See United States of America v. Michaelov, 2010 ONCA 819, paras. 41-49. Following the hearing, a Judge shall order the committal of the person into custody to await surrender to the extradition partner, if: (1) in the case of a person sought for prosecution, there is admissible evidence 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; and (2) in the case of a person sought for the imposition or enforcement of a sentence, the judge is satisfied that the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed and that the person is the person who was convicted: s. 29(1).
[24] Amongst other things, the Act relaxes the existing rules of evidence to provide for the use in an extradition hearing of evidence from other jurisdictions that might not be admissible in a Canadian trial. Subsection 32(1) of the Act provides that at an extradition hearing, a judge shall receive: (1) evidence admissible in Canada; (2) the contents of a certified “record of the case” in which the requesting jurisdiction attests to a summary of the available evidence against the person sought and certify that such evidence was available for trial and was sufficient to justify prosecution in that jurisdiction, or had at least been legally obtained according to the law of that jurisdiction, even if such evidence would be inadmissible in Canada. : Bill C-40 A New Extradition Act, David Goetz, Law and Government Division, November 30, 1999. As noted, under s. 32(2) evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.
[25] The third stage of the Act arises in the event that a Judge grants a committal order. In that case, the Minister must decide whether to surrender or to refuse to surrender the person sought. In exercising this discretion the Minister must, amongst other things, take into account Canada’s international obligations and the requirement to act responsibly in response to a request by an extradition partner: M.M. v. United States of America, 2015 SCC 62, para. 25; Extradition Act, ss. 44-47.
[26] Within these three stages, subsection 32(2) ensures that the person’s Charter rights are protected despite the relaxation of the rules of evidence in the extradition hearing. However, the Canadian government does not have the power to compel law enforcement officers from other jurisdictions to follow Canadian law when they are operating in their own territory. While in this case the telephone number at which the Respondent was reached may have given a strong indication that the Respondent was physically present in Canada, that conclusion might not necessarily be the case. The officer might have called the Respondent on his US cellphone and had no indication the Respondent was physically in Canada. In a different scenario, the officer may have contacted the Respondent through the web, perhaps while the Respondent was using tools to deliberately conceal his location.
[27] It is an overly broad interpretation of subsection 32(2) that would compel foreign law enforcement officers to turn their minds to Canadian Charter protections when they are in their own country and investigating an individual they may not even have reason to believe is in Canada. Even forcing those law enforcement officers to turn their minds to whether the individual might be in Canada would be an imposition of Canadian law on a foreign law enforcement agency.
[28] Further, if foreign law enforcement officers were expected to be aware and comply with Charter protections, it would be reasonable for other nations to have similar expectations. This would make investigation of persons in an unknown country incredibly burdensome. In particular, it could significantly hamper web-based investigations.
[29] Courts have refused to apply the Charter to evidence gathered by police officers located outside of Canada. In R. v. Terry, 1996 199 (SCC), [1996] 2 S.C.R. 207, the Supreme Court of Canada held that a statement given by a fugitive from Canada to a law enforcement officer in California was not governed by the Charter of Rights and Freedoms as the gathering of evidence by these foreign law enforcement officers was subject to the rules of that country and none other. Similarly, wiretap evidence gathered in Nevada that was in conformity with the law of the United States but not in a manner that complies with the Charter, was not excluded at an extradition hearing as to do so would indirectly apply the Charter extraterritorially to a foreign jurisdiction: United States of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462, para. 142. More recently the Ontario Court of Appeal in United States of America v. Viscomi, 2015 ONCA 484, para 47, has stated:
... it is well-established that the Charter governs the conduct of Canadian state actors, but does not apply to the conduct of foreign authorities conducting a lawful investigation within their sovereign jurisdictions, even where Canadian authorities may have cooperated with them …
[30] Accordingly, principles of state sovereignty and international comity, which underlie the Extradition Act, do not support the broad interpretation of the phrase “evidence gathered in Canada” advanced by the Respondent.
Conclusion
[31] The evidence provided by the Respondent by telephone to a police officer in the United States is not “evidence gathered in Canada” and thus I will not address whether such evidence should have been excluded at the extradition hearing under s. 24(2) of the Charter.
[32] Given the evidence before this Court and the Respondent’s concessions, I find that: (1) the Respondent is the person sought by the requesting state; (2) the evidence would justify committal for trial in Canada for the offence of murder contrary to section 235 of the Criminal Code. Accordingly, I grant the committal order sought as the test for committal, as described in United States of America v. Michaelov, supra, is satisfied.
FAIETA J.
Released: June 20, 2018
COURT FILE NO.: EX
DATE: 20180611
ONTARIO
SUPERIOR COURT OF JUSTICE
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Applicant
– and –
SAMUEL STEPHEN EBANKS
Respondent
REASONS FOR JUDGMENT
FAIETA J.
Released: June 20, 2018