Court File and Parties

Court File No.: CR-17-793 Date: 2018 07 17 Ontario Superior Court of Justice

Between: The Attorney General of Canada on behalf of the United States of America, Applicant

And: Douglas Jerry Akhigbe and Karan Uppal, Respondents

Counsel: Adrienne Rice, for the Applicant Deepak Paradkar, for K. Uppal

Heard: April 27, 2018

Judgment

L. Shaw J.

Overview

[1] The United States of America has requested extradition of Mr. Karan Uppal (born January 7, 1984) to face criminal proceedings. Mr. Akhigbe did not oppose the request for extradition. It is alleged that Mr. Uppal was involved in trafficking the controlled substance MDMA, by transporting shipments of these drugs by way of a tractor trailer to Baton Rouge, Louisiana.

[2] The Minister of Justice issued an Authority to Proceed (“ATP”) dated July 28, 2017 pursuant to section 15 of the Extradition Act, S.C. 1999, c. 18, which authorized the Attorney General of Canada to seek an order for Mr. Uppal’s committal for extradition for prosecution. According to the ATP, the Canadian offence which corresponds to the alleged conduct is trafficking in a Schedule I controlled substance contrary to section 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA).

[3] Pursuant to s. 24(1) of the Extradition Act, an extradition hearing must be held upon receipt of an ATP. According to s. 29 of the Extradition Act, the issue to be determined at the hearing is whether “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”.

[4] Sections 31 to 37 of the Extradition Act describe the rules of evidence for the purpose of the extradition hearing. In this matter, a Record of the Case (“ROC”) and two supplemental ROC’s have been filed and each certified by Assistant U.S. Attorneys at the U.S. Attorney’s Office for the Middle District of Louisiana, in compliance with s. 33 of the Act. The ROC summarizes the evidence available to the U.S. for use in the prosecution.

Position of the Parties

[5] Mr. Uppal opposes the granting of the committal order. The basis for his position can be summarized as follows:

I. The court can conduct a limited weighing of the evidence and ought not to consider any anticipated evidence from the corroborating witness (“CW”), whose identity is not identified in the ROC; II. The CW’s evidence is manifestly unreliable and ought not to be considered by the court; III. The ROC contains insufficient evidence to support the inference that Mr. Uppal had knowledge of the drugs located in his truck; IV. The Applicant has failed to establish a prima facie case that Mr. Uppal was the person who committed the offence.

[6] There was no dispute that the person that was before the court was the person being sought by the foreign state. The Applicant’s position, however, is that there is prima facie evidence that Mr. Uppal is the individual believed to have committed the criminal conduct for which committal is sought. It is also the Applicant’s position that evidence presented in the ROC satisfies the essential elements of the offence of trafficking and would justify committal for trial in Canada had the conduct occurred in Canada.

Review of the Evidence in the ROC

[7] The ROC describes the anticipated testimony of the CW, whose identity will be disclosed to Mr. Uppal prior to trial, and law enforcement officials. The following is a summary of the evidence in the ROC:

• CW is a cooperating witness who began cooperating with the Drug Enforcement Agency (“DEA”) in September 2008, after his arrest for drug trafficking. At the direction of the DEA, he ordered shipments of MDMA from the drug-trafficking organization with which he had been involved. The shipments were for drugs to be delivered to Baton Rouge, where the CW had previously arranged delivery.
• Two individuals were identified by CW is leaders of the multi-national drug-trafficking organization that was under investigation. CW contacted these two people to arrange shipments of the MDMA.
• Christopher Abney is a Special Agent with the DEA (SA Abney) who was involved with the investigation, and directed CW’s activities in relation to the orders of the MDMA and made arrangements for the shipments to be intercepted.
• Lanny Bergeron is a Louisiana State Trooper (Trooper Bergeron) who stopped Mr. Uppal on October 22, 2009.
• Kevin Istre is a Task Force Agent (TFA Istre) with the Baton Rouge Police Department who searched Mr. Uppal’s truck on November 26, 2009 and uncovered 200,000 MDMA tablets.
• On SA Abney’s instruction, the CW contacted one of the leaders of the drug-trafficking organization named Hung to order 100,000 MDMA tablets to be delivered to Baton Rouge. The CW told Hung to have the driver who would be delivering the pills to contact his people. The telephone number CW provided to Hung was for a phone being used by the undercover officers.
• On October 22, 2009, the CW received a phone call from Hung and was told that the driver was parked in a tractor trailer at a Wal Mart on College Drive in Baton Rouge. The CW informed SA Abney.
• On that date, SA Abney met the driver of the tractor trailer at that location. The truck had Ontario licence plate F5332D. The driver pulled out a box from a side compartment and helped load it into SA Abney’s car and then left.
• That day, Trooper Bergeron located the truck and conducted a traffic stop. The driver identified himself as Karan Uppal and produced a driver’s license corroborating his identity and his address in Brampton, Ontario.
• A representative sample of the tablets were tested by a DEA forensic chemist, who determined that they contained MDMA. The delivery totalled 140,000 tablets.
• In early November 2009, under the direction of SA Abney, the CW contacted one of the other leaders of the drug-trafficking organization, Vinh Trinh, and placed an order for 100,000 MDMA to be delivered to Baton Rouge. The CW told Trinh to have the driver delivering the pills to contact his people, who were undercover officers.
• TFA Istre was working on a task force that was targeting the importation of drugs into Louisiana from Canada. On November 26, 2009, he was carrying out surveillance based on information he received from SA Abney about a person believed to be transporting drugs.
• The CW was contacted by the driver of the shipment and told that he was parked near a truck stop near Baton Rouge waiting to make the delivery. Based on his communication with SA Abney, TFA Istre located the tractor trailer at a gas station in Denham Springs, Louisiana. He followed it and pulled it over for a traffic violation. The driver identified himself as Karan Uppal and provided a Canadian driver’s license in the name of Karan Uppal.
• Mr. Uppal provided consent to search the trailer. During that search, a large trash bag, covered by a blanket, was found on the bed inside the sleeper area of the cab. Inside the trash bag was a duffel bag containing clear plastic bags of multi-coloured pills.
• A DEA forensic chemist tested a representative sample of the pills and determined that they were MDMA. The delivery totalled approximately 200,000 tablets.
• SA Abney reviewed the photograph of Mr. Uppal taken during his booking and identified him as the driver from whom he received the MDMA on October 22, 2009.
• TFA Istre reviewed the photograph of Mr. Uppal taken during his booking and identified him as the driver whom he stopped on November 26, 2009.

The Law

[8] In M. M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, the court considered the test for committal to trial as set out in s. 29 of the Extradition Act and made the following number of findings:

• An individual will not be extradited unless the requesting state makes out a prima facie case (para. 61);
• The modest screening conducted during the extradition hearing is structured around the concept that the actual trial takes place in the requesting state (para. 61);
• In United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77, the court noted that the extradition judge’s role is not to determine guilt or innocence, or to engage in the ultimate assessment of reliability (para. 62);
• The evidence in the ROC is presumed to be reliable unless rebutted. If not rebutted, this presumption will stand and the case will be deemed sufficient to commit for extradition (para. 62)
• The issue is not whether the information in the record is actually true. The extradition judge’s limited weighing goes only to whether there is a plausible case (para. 62);
• There is a high threshold for refusing committal on the basis that the supporting evidence is unreliable. It is only where the evidence supporting committal is manifestly unreliable and that it would be dangerous or unsafe to act on it that the extradition judge is justified in refusing committal on this basis (para. 63);
• Ferras reiterates that the test remains whether there is evidence that is sufficient to justify committal had the conduct occurred in Canada. The extradition judge’s role is not concerned with defences or other matters on which the accused bears an evidential burden (para. 65);
• In United States of America v. Anderson, 2007 ONCA 84, 85 O.R. (3d) 380, at paras. 28-31, Doherty J.A. writing for the court found that Ferras “does not envision weighing competing inferences that may arise from the evidence” other than in the limited sense of considering that the inferences sought to be drawn from circumstantial evidence are reasonable (para. 71);
• The extradition judge does not 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 be weak or unlikely to succeed at trial. Ferras requires the extradition judge to remove evidence from consideration that appears to be so unreliable that it should be disregarded. This may be the result of problems that undermine the credibility or reliability of the source of the evidence. It is only where the concerns with respect to reliability of the evidence are sufficiently powerful to justify the complete rejection of the evidence that those concerns become germane to the s. 29(1)(a) inquiry (para. 72); and
• The test for committal does not require that guilt be the only possible inference that can be drawn from the evidence; it need only be a reasonable inference. The choice between competing inferences – provided the one relied on by the requesting state is reasonable, is a decision for the trial judge and not the extradition judge (para. 83).

[9] Mr Uppal has raised identity as an issue. In Danielson v. United States of America, 2008 BCCA 519, the British Columbia Court of Appeal explained that there are two parts to the identification issue under s. 29 of the Extradition Act each with a differing burden of proof. The first is whether there is prima face evidence that person named in the ROC is the person who committed the alleged conduct. Second, there must be evidence proving, on a balance of probabilities, that the person before the court is the person sought by the requesting state. Mr. Uppal does not dispute that he is the person being sought. His position is that there the applicant has failed to provide prima facie evidence in the ROC that he is the person who committed the alleged conduct.

Analysis

[10] With these guiding principles in mind, the first issue to be determined is whether there is prima facie evidence that Mr. Uppal is the person who committed the alleged act. The second issue is whether the ROC sets out sufficient evidence to support the reasonable inference of the existence of all of the essential elements of the comparable Canadian offence under s. 5(1) of the CDSA. The essential elements of trafficking are as follows:

I. That the accused trafficked in a substance; II. That the substance was a controlled substance; III. That the accused knew that the substance was a controlled substance; IV. That the accused intentionally trafficked in the controlled substance.

Identity

[11] Identity is the threshold issue. If there is a lack of prima facie evidence that Mr. Uppal is the person who committed the offence, then the committal order shall not be granted.

[12] The Applicant’s position is that there is prima facie evidence that Mr. Uppal is the person who committed the offence as the ROC includes the anticipated testimony of SA Abney and TFA Istre that they both identified Mr. Uppal in his booking photograph as the person they respectively dealt with in Louisiana. SA Abney interacted with Mr. Uppal on October 22, 2009 as an undercover agent and took a box from him, which he had in a compartment on his tractor trailer, which contained 140,000 MDMA tablets. The tractor trailer was later stopped by Trooper Bergeron who was assisting the DEA and confirmed Mr. Uppal’s identity by way of his Canadian driver’s license. TFA. Istre stopped Mr. Uppal while he was driving a tractor trailer which was searched and 200,000 MDMA tablets were discovered in the sleeper part of the truck.

[13] Mr. Uppal asserts that there was a lack of continuity of surveillance after SA Abney interacted with Mr. Uppal and when he was stopped and identified by Trooper Bergeron. He suggests that this lack of continuity leads to a question as to whether Mr. Uppal was the driver of the truck who interacted with SA Abney on October 22, 2009. Essentially, he asserts that the lack of continuity leads to an inference that there could have been a change of drivers between the time SA Abney interacted with the driver and was given the box of MDMA tablets and when the truck was stopped by Trooper Bergeron and Mr. Uppal was identified as the driver of the truck.

[14] Mr. Uppal relies on United States of America v. Walker, 2008 BCCA 55, in which the court discussed the frailties of eyewitness identification and the history of judicial recognition in Canada of the inherent dangers with such evidence. The court found, at para. 25, that extradition judges should give high risk eyewitness identification a very hard look. The court found that where it could not be determined whether the eyewitness identification is dangerous or unsafe, because the summary is incomplete, then the requesting state has not met its burden: see para. 30 of Walker.

[15] In Walker, the eyewitness identification evidence was from a witness to a murder who was shot at by the accused as well. The witness identified the accused from a six-person photo montage and also from a single photo.

[16] The British Columbia Court of Appeal dealt with identification in United States of America v. Khuc, 2008 BCCA 425. The court distinguished Walker, noting that in Walker, the difficulty with identification based on a single photograph does not alone make the evidence inadmissible or render it unsafe. In Khuc the court noted that the appeal in Walker was allowed and the order of committal set aside, as the court was unable to determine on what the identification was based.

[17] At para. 33, in Khuc, the court noted that consideration of eyewitness identification must be placed into context. At para. 36, the court noted that Ms. Khuc was identified by trained police officers and a confidential witness who described her as a friend. The court noted that the exposure of the witnesses to Ms. Khuc was not fleeting and they were not under threat at the time as in Walker.

[18] At para. 37 of Khuc, the court found that the requesting state had to establish a prima facie case only on the first identification issue. The court indicated that in extradition cases, identification is often established using a single photograph, based on the evidence of police officers and others who have been exposed to the person. Under such circumstances, the court found that it would not consider the identification evidence unreliable. The court also commented on the presumption of reliability that follows from the certification of the ROC.

[19] In this matter, two trained investigators identified Mr. Uppal. They both had prior dealings with him. When SA Abney met him on October 22, 2009, it was an arranged meeting at which there was going to be an interception of a shipment of drugs. According to the ROC, SA Abney shook Mr. Uppal’s hand when he met him. He was given the box of MDMA tablets and Mr. Uppal helped him load them into his car. This was not a situation as in Walker where the identifying witness was under duress or stress. This was a planned meeting that took place with a trained officer who attended specifically to intercept the shipment of drugs.

[20] On November 26, 2009, TFA Istre planned to stop Mr. Uppal’s truck for the purpose of intercepting a shipment of drugs. This was not just a routine traffic stop. He then asked for Mr. Uppal’s driver’s licence, searched his truck and located MDMA pills. Again, this is not high risk eyewitness identification as described in Walker. TFA Istre was a trained professional who was involved in the police operations to intercept the trafficking of drugs.

[21] Furthermore, as stated in M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, it is only where the concerns with respect to reliability of the evidence are sufficiently powerful to justify the complete rejection of the evidence should those concerns become germane to the s. 29(1)(a) inquiry (see para. 72). The presumptive reliability of the certified evidence in the ROC is only rebutted by evidence showing fundamental inadequacies in the material relied upon by the requesting state.

[22] I do not consider the potential frailties of the eyewitness identification by two law enforcement officials who interacted with Mr. Uppal and then identified him from a booking photograph to rise to a level of concern to justify complete rejection of the evidence. The presumption of reliability is not rebutted by evidence of fundamental inadequacies in eyewitness identification evidence. Furthermore, I do not consider the identification evidence of two trained police enforcement officers to be high risk eyewitness evidence that is dangerous or unsafe.

[23] Counsel for Mr. Uppal submits that this court ought to draw an inference from the lack of surveillance of Mr. Uppal between the time he interacted with SA Abney and was then stopped by Trooper Bergeron. The suggested inference is that the driver stopped by Trooper Bergeron may not have been the same driver that interacted with SA Abney and gave him a box of MDMA tablets from the truck. In M.M., the court noted that competing inferences that may arise from the evidence are not to be weighed by the extradition judge. The inference that the requesting state proposes that it was the same driver that interacted with SA Abney and Trooper Bergeron is a reasonable one.

[24] I therefore find that there is prima facie evidence that Mr. Uppal is the person who committed the acts alleged in the ROC.

Knowledge

[25] Mr. Uppal’s position is that the court has jurisdiction to conduct a limited weighing of the evidence and that it should exercise that discretion in this matter and find that all evidence from the CW is manifestly unreliable, as the CW is not identified. Mr. Uppal asserts that an extradition judge cannot rely on any evidence from an unidentified source, even if the identity of that source will be disclosed prior to trial.

[26] According to Mr. Uppal, without the CW’s evidence, there would be no evidence to justify the inference that Mr. Uppal had knowledge of what he was transporting in his truck. Mr. Uppal’s position is that this is not a case of a competing inference, but rather than there is no evidence from which an inference can be drawn that Mr. Uppal had such knowledge.

[27] Referring to M.M. again, I start with the presumption of reliability of the evidence in the certified ROC. That presumption can be rebutted if there are concerns with respect to reliability of the evidence that are sufficiently powerful to justify the complete rejection of the evidence.

[28] Mr. Uppal’s position is that CW’s evidence is manifestly unreliable because he is not identified. There are no other particulars of unreliability other than the fact that his identify is unknown at this time. SA Abney’s anticipated evidence is that the CW was acting under his direction to contact persons CW knew to make arrangements for the delivery of MDMA to Baton Rouge. The CW will testify about the conversations he had with these individuals and how arrangements were made for the shipments to be intercepted by undercover officers.

[29] There is no suggestion that the anticipated evidence from the various enforcement officers, including those with the DEA is not reliable. SA Abney’s anticipated evidence corroborates CW’s evidence of phone calls being made and then arrangements made to deliver drugs and those deliveries being intercepted. It is a very high bar for evidence to be manifestly unreliable. Looking at the evidence as a whole in the ROC, I do not have concerns that CW’s evidence is manifestly unreliable and ought not to be considered by the extradition court.

[30] If I am not correct and the evidence from an unidentified witness is manifestly unreliable and should not be considered, I can still consider the balance of the available and reliable evidence to determine if that is evidence upon which a reasonable jury, properly instructed, could convict. (United States of America v. Thomlison, 2007 ONCA 42, at para. 45).

[31] I do not accept Mr. Uppal’s submission that there is no evidence upon which to base an inference of knowledge. Mr. Uppal gave SA Abney a box from his truck that contained 140,000 MDMA tablets. There is no direct evidence that Mr. Uppal knew what was in the box when he gave it to SA Abney. There is no evidence that the box was opened in Mr. Uppal’s presence. While there is no evidence of the value of those drugs, given the number of tablets in the box, in can be reasonably inferred that the drugs entrusted to him for delivery had significant value.

[32] In the second incident, the pills were found in the sleeper of Mr. Uppal’s truck. Mr. Uppal’s counsel submitted that Mr. Uppal’s consent to have the truck searched and the lack of any evidence regarding his behaviour or response to the discovery of the drugs supports a finding of a lack of an inference of knowledge. Mr. Uppal’s position is that had he known of the drugs in his truck in November 2009, there would be evidence that he acted nervously or an in a matter consistent with an inference of knowledge.

[33] The evidence of CW making arrangements for the delivery of drugs and then those shipments being intercepted by police enforcement officers while in the possession of Mr. Uppal is sufficient evidence to justify the inference of knowledge. Even if I were to exclude CW’s evidence for being manifestly unreliable, there is still sufficient evidence for a properly instructed jury to find that Mr. Uppal had knowledge that what he was transporting was drugs.

[34] On two separate occasions, over a relatively short period of time, Mr. Uppal had significant quantities of MDMA tablets in his truck. He was entrusted to deliver these drugs, which the court can infer had a significant value given the number of tablets discovered. It is unlikely that he would have been entrusted with that number of tablets without having knowledge of what he was transporting.

[35] The requesting state has made out a prima facie case that Mr. Uppal had knowledge that he was transporting drugs in his truck. It is not for this court to determine if the evidence in the ROC is weak. That will be determined by the trier of fact.

[36] Mr. Uppal did not raise any issue regarding the remaining elements of the offence of trafficking, and I am satisfied that the certified ROC sets out presumptively reliable evidence that would justify committal for trial in Canada.

Conclusion

[37] For these reasons, I grant the request of the Attorney General and order the committal of Karan Uppal into custody, pursuant to s. 29 of the Extradition Act, to await surrender for the offence set out in the Authority to Proceed.

L. Shaw J. Released: July 17, 2018