The United States of America v. Norbu
[Indexed as: United States of America v. Norbu]
Ontario Reports
Ontario Superior Court of Justice
MacDonnell J.
September 9, 2020
152 O.R. (3d) 343 | 2020 ONSC 5389
Case Summary
Extradition — Evidence — United States seeking extradition of applicant for counselling individuals to make false asylum claims — Case relying in part on identification of applicant from a photograph by purported victims — Applicant arguing that identification evidence manifestly unreliable and seeking further disclosure or an order for witnesses to testify — Applicant involved in a fishing expedition and failed to show that disclosure or testimony would assist in establishing manifest unreliability.
The United States of America requested the extradition of the applicant for prosecution for allegedly counselling 34 individuals to make false claims in applications for asylum. The summary of evidence in the record of the case ("ROC") certified by an Assistant United States Attorney for the Southern District of New York indicated that a Supervisory Immigration Officer with United States Custom and Immigration Services was prepared to testify that he had reviewed 34 applications for asylum connected to the applicant, who purported to prepare them as a document preparer, some under his own name and some under aliases. Each application claimed asylum because of persecution due to Tibetan ethnicity. In support of its allegation that the 34 applications were fraudulent, the United States relied, in part, on the uniformity across the applications, including verbatim duplication in the narrative sections of the applications. The ROC also summarized the anticipated testimony of three representative victims, two of whom identified the applicant from a photograph. The applicant proposed to contest committal on the ground that the identification evidence was manifestly unreliable. He applied for further disclosure from the United States concerning the process that led to the identification and/or an order that the witnesses involved in that process be called to testify.
Held, the application should be dismissed.
The applicant failed to show that disclosure of further details surrounding the showing of the photograph to the witnesses would assist in establishing manifest unreliability. It was not enough that the information sought might assist in demonstrating that the evidence in the ROC was unreliable. The application was a fishing expedition based on wishful thinking. For the same reasons, the applicant's alternative request for an order requiring the American authorities to testify failed. In any event, further disclosure or an order requiring the calling of evidence was not likely to affect the outcome of the applicant's proposed argument. [page344]
United States of America v. Mendoza, [2018] B.C.J. No. 249, 2018 BCCA 55 (C.A.); R. v. Rosenau, [2010] B.C.J. No. 2027, 2010 BCCA 461, 292 B.C.A.C. 294, 10 B.C.L.R. (5th) 129, 262 C.C.C. (3d) 515 (C.A.); United States of America v. Heatherington, [2019] B.C.J. No. 82, 2019 BCSC 82 (S.C.), consd
Other cases referred to
M.M. v. United States of America, [2015] 3 S.C.R. 973, [2015] S.C.J. No. 62, 2015 SCC 62, 345 C.R.R. (2d) 1, 394 D.L.R. (4th) 7, 331 C.C.C. (3d) 421, J.E. 2015-1948, 480 N.R. 1; R. v. Larosa, 2002 45027 (ON CA), [2002] O.J. No. 3219, 163 O.A.C. 108, 166 C.C.C. (3d) 449, 98 C.R.R. (2d) 210 (C.A.); United States of America v. Dynar (1997), 1997 359 (SCC), 33 O.R. (3d) 478, [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, 147 D.L.R. (4th) 399, 213 N.R. 321, J.E. 97-1400, 101 O.A.C. 321, 115 C.C.C. (3d) 481, 8 C.R. (5th) 79, 44 C.R.R. (2d) 189; United States of America v. Ferras, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 2006 SCC 33, 268 D.L.R. (4th) 1, 351 N.R. 1, J.E. 2006-1461, 209 C.C.C. (3d) 353, 39 C.R. (6th) 207, 143 C.R.R. (2d) 140; United States of America v. Kwok, [2001] 1 S.C.R. 532, [2001] S.C.J. No. 19, 2001 SCC 18, 197 D.L.R. (4th) 1, 267 N.R. 310, J.E. 2001-782, 145 O.A.C. 36, 152 C.C.C. (3d) 225, 41 C.R. (5th) 44, 81 C.R.R. (2d) 189; United States of America v. Lopez-Turatiz, [2014] B.C.J. No. 154, 2014 BCCA 39, 350 B.C.A.C. 125 (C.A.); United States of Americav. Sandhu, [2019] B.C.J. No. 2563, 2019 BCSC 2282 (S.C.); United States of America v. Thomlison (2007), 84 O.R. (3d) 161, [2007] O.J. No. 246, 2007 ONCA 42, 219 O.A.C. 322, 68 Admin. L.R. (4th) 247, 216 C.C.C. (3d) 97 (C.A.); United States of America v. Viscomi (2019), 146 O.R. (3d) 145, [2019] O.J. No. 3103, 2019 ONCA 490, 435 C.R.R. (2d) 149, 376 C.C.C. (3d) 102 (C.A.); United States of America v. Wilson, [2011] B.C.J. No. 341, 2011 BCCA 96, 302 B.C.A.C. 49, 274 C.C.C. (3d) 193 (C.A.)
Statutes referred to
Canadian Charter of Rights and Freedoms
Extradition Act, S.C. 1999, c. 18, ss. 15, 24(1), 29
Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 126
APPLICATION for further disclosure in advance of an extradition hearing.
Adrienne Rice, for respondent.
Leo Adler, for applicant.
MACDONNELL J.
[1] The United States of America has requested the extradition of the applicant, Tenzin Norbu, for prosecution for allegedly counselling 34 individuals to make false claims in the applications for asylum that they made to United States Citizenship and Immigration Services ("USCIS"). Pursuant to s. 15 of the Extradition Act, S.C. 1999, c. 18, the Minister of Justice has issued an authority to proceed, authorizing the Attorney General of Canada to seek an order under s. 29 of the Act for the committal of the applicant to custody to await surrender to the United States. The Canadian offence that is said to correspond [page345] to the conduct alleged by the United States is Counselling Misrepresentation, contrary to s. 126 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Subsection 24(1) of the Extradition Act requires the court to hold an extradition hearing upon receipt of an authority to proceed. Section 29 of the Act provides that the judge conducting the hearing "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. . .".
[3] The evidence available to the United States of America for use in the prosecution of the applicant is summarized in the Record of the Case ("ROC") that was certified by an Assistant United States Attorney for the Southern District of New York on July 2, 2018. The certification recites that the evidence is available for trial and sufficient under the laws of the United States to justify prosecution.
[4] In United States of America v. Ferras, the Supreme Court of Canada held that an extradition judge exercising authority under s. 29 may engage in a limited weighing of the evidence.[^1] Following Ferras, there was debate with respect to what the limits of the weighing were. In United States of America v. Thomlison, the Ontario Court of Appeal held that ". . . if there is some evidence, that is available for trial and not manifestly unreliable, on every essential element of the parallel Canadian crime, upon which a jury properly instructed, could convict, the test for committal will have been met"[^2] (emphasis added). Any concern that the extradition judge might have about the strength of the case or the likelihood of conviction is irrelevant.[^3] In M.M. v. United States of America, with reference to the concept of "manifest unreliability", Cromwell J. stated:
I also agree . . . that "it is only where the concerns with respect to the reliability of the evidence, whatever the source or sources, are sufficiently powerful to justify the complete rejection of the evidence, that these concerns become germane to the s. 29(1)(a) inquiry". . . The extradition judge's starting point is that the certified evidence is presumptively reliable: see Ferras, [page346] at paras. 52-56. This presumption may only be rebutted by evidence showing "fundamental inadequacies or frailties in the material relied on by the requesting state. . ."[^4]
[5] When the s. 29 hearing is finally held in this case, the applicant proposes to contest committal on the basis, inter alia, that the evidence summarized in the ROC concerning the identification of him as the person who counselled the making of the allegedly fraudulent asylum applications is manifestly unreliable within the meaning of Ferras and M.M. Accordingly, he will submit, the test for committal has not been satisfied and he should be discharged. In anticipation of that argument, he seeks further disclosure from the United States concerning the process that led to the identification and/or an order that the witnesses involved in that process be called to testify.
[6] For the reasons that follow, the application is dismissed.
The Evidence Summarized in the ROC
[7] The summary of evidence contained in the ROC indicates that Joseph Williams, a Supervisory Immigration Officer with USCIS, will testify that applications for asylum in the United States are to be completed by the claimant personally or by a document preparer. The claimant signs the form under penalty of perjury. A document preparer must declare that the contents of the form are based on personal knowledge or information from the claimant and must acknowledge that knowingly providing false information can result in criminal penalty.
[8] Asylum claimants must demonstrate that they have suffered persecution in their country of origin based on enumerated grounds or that they have a well-founded fear of persecution upon return to their country of origin. Their applications must detail the basis of their asylum claim and must include their personal data and travel history. Once an application has been submitted, the claimant is convoked to an interview, under oath, with an officer of USCIS at which s/he can present corroborative evidence in the form of documents or witness testimony. The officer then decides whether asylum should be granted. A supervisory officer reviews the decision[.]
[9] Officer Williams will testify that he has reviewed 34 applications for asylum that are connected to the applicant, who purported to prepare them as a document preparer, some under his own name and some under aliases. Each application claimed [page347] asylum because of persecution due to Tibetan ethnicity. In support of its allegation that the 34 applications were fraudulent, the United States relies, in part, on the uniformity across the applications, including verbatim duplication in the narrative sections of the applications.
[10] The ROC also summarizes the anticipated testimony of three "representative victims", D.N., S.T., and Y.Z.
[11] D.N. will testify that he met Norbu after entering the United States on a visa in 2013 and that Norbu offered to prepare his asylum application in exchange for a fee of $6,000. Prior to submission of the application, there were meetings between D.N. and Norbu. D.N. told Norbu that he was born in Bhutan and that he had entered the U.S. with a valid visa. The asylum application and the supplemental affidavit that Norbu prepared for D.N., however, stated that he was born in Tibet and had no status in Bhutan. The application further falsely stated that while D.N. was living in Bhutan, Chinese government authorities had arrested, interrogated and beat him. The name listed on the application for the document preparer was "Sonam Sangpo".
[12] For the purpose of D.N.'s interview with USCIS, Norbu gave him a Chinese identification card and a Tibetan Green Book. According to Officer Williams' anticipated testimony, a Tibetan Green Book is a document that is issued by the Central Tibetan Administration (the Tibetan Government in Exile) to Tibetans living outside Tibet. This document is accepted by the USCIS as evidence of Tibetan ethnicity. D.N. will testify that the documents Norbu gave him were doctored. Norbu also told D.N. what he should say in his interview, which included false information about his ethnicity and background. D.N. provided the documents and the information to the USCIS interviewer as instructed. In September 2016, USCIS officials denied D.N.'s application for asylum.
[13] S.T. will testify that he was born in Bhutan and that he met Norbu, whom he also knew as "Passang Tsering", after entering the United States for a visit in 2014. Norbu offered to prepare S.T.'s asylum application for several thousand dollars. Although S.T. had told Norbu that he was not from Tibet, the asylum application and supplemental affidavit prepared by Norbu stated that he was, and that he had been born there. The application also falsely stated that S.T.'s monastery had been raided by Chinese Government officials, who beat S.T. for worshipping the Dalai Lama. Norbu told S.T. to memorize the false tale of persecution and gave him a Tibetan Green Book. S.T. presented the false information and documents to the USCIS asylum officer as instructed. [page348]
[14] Y.Z. will testify that she met with Norbu while visiting the United States and that he offered to assist her with an asylum application in exchange for several thousand dollars. He identified himself to her as "Tenzin Passang". Although she had told Norbu that she was not Tibetan, the application prepared by Norbu claimed that she was. Norbu also provided Y.Z. with a forged birth certificate and Tibetan Green Book, both of which she provided to a USCIS officer.
[15] With respect to the identification of the applicant, the ROC states, at para. 6:
On October 3, 2016, law enforcement showed D.N. a photograph of an individual, attached as Exhibit 1, which D.N. positively identified as Tenzin Norbu, the individual who prepared his asylum application and provided him with doctored identity documents. On June 8, 2017 law enforcement agents showed the same photograph, attached as Exhibit 1, to S.T. S.T. identified the individual depicted in Exhibit 1 as the person who prepared his asylum application and provided the false identification documents.
Discussion
[16] As I have said, one of the bases upon which the applicant proposes to contest committal is that the identification evidence summarized in the ROC is manifestly unreliable and, accordingly, that the test for committal has not been satisfied and he should be discharged. He proposes to argue that this is a case of eyewitness identification, that eyewitness identification evidence is inherently unreliable, and that the use of the discredited practice of showing a single photograph to a witness completely negates the probative value of the identification evidence that the requesting state relies on.
[17] The merits of the applicant's argument are not directly before me on this application and I express no opinion with respect to the likelihood of the argument succeeding. The sole issue for decision here is whether, prior to making the argument, the applicant is entitled to further disclosure from the United States concerning the process that led to the identification and/or an order that the witnesses involved in that process be called to testify.
[18] It is well-settled that in extradition proceedings the right to disclosure of information beyond what is set forth in the ROC, while not non-existent, is much more limited than the right to disclosure that a defendant would have in Canadian criminal proceedings.[^5] One situation in which a right to further [page349] disclosure might arise is where evidence relied upon by the requesting state in seeking committal was gathered in Canada, and there is an air of reality to a claim by the person sought that the Canadian evidence was obtained in a manner that infringed the Canadian Charter of Rights and Freedoms.[^6]
[19] In United States of America v. Larosa,[^7] the Ontario Court of Appeal articulated a three-part test to be met before further disclosure might be ordered where a breach of the Charter is alleged: the allegations of Charter-infringing conduct must be capable of supporting the remedy sought, there must be an air of reality to the allegations and it must be likely that the disclosure would be relevant to the allegations. The court cautioned that "the [applicant] must, however, do more than simply assert that the documents requested and the testimony sought will assist in determining [the] issues raised . . . 'Fishing' expeditions are not tolerated in any judicial proceeding, particularly one which is intended to provide a simple and expeditious means of responding to Canada's international obligations."[^8]
[20] On this application, the respondent Attorney General initially took the position that in the absence of an allegation of a breach of the Charter -- for example, in the gathering of the evidence relied on for committal -- a right to further disclosure cannot arise. As the impugned identification evidence in this case was gathered entirely in the United States by American authorities with no Canadian involvement, the respondent submitted, no Charter issue is raised and on that basis alone the application for disclosure should be dismissed. Further, the respondent submitted: "There is a long line of cases confirming that an extradition judge does not have jurisdiction to compel evidence from a foreign requesting state."[^9]
[21] Subsequent to oral argument, however, the respondent brought to the court's attention a line of recent cases from British Columbia that hold that notwithstanding that an infringement of the Charter has not been alleged, disclosure might be ordered in support of an argument that the evidence in the ROC is manifestly unreliable: R. v. Rosenau, [2010] B.C.J. No. 2027, 2010 BCCA 461, at para. 55; United States of America [page350] v. Mendoza, [2018] B.C.J. No. 249, 2018 BCCA 55 (C.A.), at paras. 15 and 39; United States of America v. Heatherington, [2019] B.C.J. No. 82, 2019 BCSC 82 (S.C.), at para. 26; United States of Americav. Sandhu, [2019] B.C.J. No. 2563, 2019 BCSC 2282 (S.C.), at paras. 15-16; United States of America v. Wilson, [2011] B.C.J. No. 341, 2011 BCCA 96 (C.A.), at para. 24; United States of America v. Lopez-Turatiz, [2014] B.C.J. No. 154, 2014 BCCA 39 (C.A.), at paras. 14 to 16. Those cases also hold, however, that when considering whether to order disclosure in that context, the Larosa test -- and in particular its "air of reality" component -- remains the appropriate standard.
[22] It is clear from a review of the British Columbia cases that while they expand the basis upon which an order for disclosure can be made, an applicant must still surmount significant hurdles. As noted in Heatherington, the Larosa test, "represents a 'restrictive approach' to disclosure, such that a disclosure order in an extradition hearing context will be a 'rare situation'".[^10] Indeed, in none of the British Columbia cases was the application for further disclosure successful.
[23] In Rosenau, the United States sought the defendant's extradition to face charges of trafficking in marihuana and conspiracy to traffic in marihuana. The case for committal, as set out in the Supplementary ROC, depended on the evidence provided by an accomplice about the role played by the defendant in the commission of the offences. The accomplice had provided the information as part of a plea bargain with the American authorities. The defendant sought disclosure of the manner in which evidence was procured from the accomplice. He submitted that this information might support his argument that the accomplice's evidence was manifestly unreliable. The extradition judge dismissed the application for disclosure. In upholding the extradition judge's ruling, the Court of Appeal stated:
The appellant submits that since Ferras, the scope of the earlier jurisprudence on disclosure has been or should be expanded. However, the expanded scope of the role of the extradition judge in the limited weighing of the evidence has more to do with weighing inferences that might be drawn from circumstantial evidence in support of committal than the weighing of direct evidence. . . Ferras has not, in my view, opened the door to an expansion of the categories of disclosure for the purpose of challenging the reliability of direct evidence that has been certified in the manner authorized by s. 33(3)(a) of the Act.[^11] [page351]
[24] The Court of Appeal concluded:
The appellant is effectively asking for the opportunity to discover if there is a "reasonable possibility" that evidence that could undermine the reliability of [the accomplice's] evidence exists, without having to demonstrate, from the record or by adducing evidence, that it is manifestly unreliable. This request amounts to no more than a fishing expedition for evidence from which the appellant may try to mount an attack on [the accomplice's] credibility. While such an approach to [the accomplice's] evidence may be appropriate if not essential at trial, in my view it exceeds the focus of an extradition hearing which is limited to determining threshold reliability of evidence as a requirement of s. 29(1) of the Act.[^12]
(Emphasis added)
[25] The reliability issue raised by the defendant in Rosenau in relation to the testimony of an accomplice is different from the reliability issue raised by the applicant in the case at bar. What is significant, however, is that it was not enough in Rosenau to point to a reliability argument arising on the face of the ROC, to assert an intention to make that argument on the s. 29 hearing, and on that basis alone to obtain further disclosure. The Court of Appeal seemed to put the burden on the applicant to demonstrate that the disclosure sought would support the allegation of manifest unreliability, failing which the request would be treated as a fishing expedition and dismissed.
[26] In Mendoza, the defendants were sought for extradition to the United States for, inter alia, conspiracies to export cocaine from the United States to Canada and to import MDMA from Canada into the United States. The central issue at the committal hearing was the identification of the defendants as the persons directing the operation. A key component of the case for committal was the evidence of an undercover police officer who had met with the defendants in British Columbia. The defendants requested further disclosure in aid of their argument that the officer's identification of them was unreliable. In affirming the extradition judge's refusal of that request, the Court of Appeal stated:
Mr. Mendoza sought further disclosure to challenge the reliability of the requesting state's evidence and, in particular, the undercover officer's identification of the appellants as the two men who delivered the MDMA. The test set out in Fraser is inapplicable in this context. In my view, and on established authority (see Rosenau at paras. 25-27, 53-64), Mr. Mendoza was required to establish an air of reality to his contention that additional disclosure would reveal manifest unreliability in the undercover officer's identification evidence. The judge made no error in applying the Larosa test in these circumstances nor did she err in dismissing the application. [page352] What Mr. Mendoza sought was an opportunity to discover whether there might be evidence that could conceivably undermine the reliability of the undercover officer's identification of the appellants. The application, as framed, was a fishing expedition based on wishful thinking. As such, it was properly dismissed. For these reasons, I cannot give effect to this ground of appeal.[^13]
(Emphasis added)
[27] Once again, the British Columbia Court of Appeal held that it was not enough for a defendant to point to the ROC, to make a claim of manifest unreliability, and then to seek further disclosure in the hope that it would support the claim. The application for disclosure in Mendoza failed because the defendant had not shown that the disclosure would have that effect. It was not enough that it might. Once again, the disclosure request was characterized as a fishing expedition.
[28] An application for disclosure failed for the same reason in Heatherington. There, the defendant was being sought for extradition for his alleged participation in a stock fraud. The extradition judge stated:
. . . [The] Applicant has not made out a case for disclosure of the specified items in this context. The Applicant's requests fall within the realm of possibility that further evidence could undermine the reliability of the Requesting State's case, but it is not enough that the information sought might exist or might assist in demonstrating that the evidence in the ROC is unreliable. Having regard to the limited function of an extradition hearing and the narrow scope for pre-hearing disclosure, more is needed to move the Applicant's requests beyond a mere fishing expedition: Rosenau at para. 63.
It may be that the Applicant can adduce evidence which impacts the identified areas he says are problematic in the ROC at the extradition hearing. However, on the authorities binding upon me, I cannot find that there is an air of reality to the Applicant's claim that disclosure is necessary in order to challenge the presumptive reliability of the contents of the ROC.[^14]
(Italics in the original; underlining added)
[29] The British Columbia line of authority affirms that notwithstanding that the right to disclosure is limited in the extradition context, disclosure is available where there is a basis for believing that it will show that evidence in the ROC is manifestly unreliable. It also affirms, however, that it is not enough that the disclosure may point to or bolster the case for a finding of manifest unreliability. An applicant for disclosure must establish that the disclosure will do that. If all that can be concluded is that the disclosure may or may not have that effect, the application will fail the air of reality test and will be dismissed. [page353]
[30] In the case at bar, the applicant intends to argue that the process through which the two identification witnesses came to say that the photograph they were shown was the photograph of the person who counselled their misrepresentations was manifestly unreliable and not a sufficient basis upon which to order committal. The parties, in both their oral and written submissions, have staked out their positions in relation to that argument. Whether it will succeed is a determination to be made at another time, and I make no comment with respect to its merits other than to say that it is an argument that it is open to the applicant to make.
[31] In my view, however, the applicant has failed to show that disclosure of further details surrounding the showing of the photograph to the witnesses will assist in establishing manifest unreliability. It may or it may not. As in Mendoza, what the applicant seeks is "an opportunity to discover whether there might be evidence that could conceivably undermine the reliability of the identification. . ." As in Heatherington, it is "within the realm of possibility that further evidence could undermine the reliability of the Requesting State's case", but, also as in Heatherington, "it is not enough that the information sought might exist or might assist in demonstrating that the evidence in the ROC is unreliable". As in Rosenau, the application is "a fishing expedition based on wishful thinking". And as in all of those cases, the applicant falls short of establishing what is necessary to justify disclosure in the extradition context and his application for further disclosure fails. So too, and for the same reasons, does his alternative request for an order requiring the American authorities to testify.
[32] Even if the applicant were able to establish an air of reality to his submission that further disclosure would support his claim of manifest unreliability, I would not order disclosure in this case. Even where an applicant has demonstrated the requisite air of reality, a decision as to whether to order disclosure in extradition proceedings remains discretionary: United States of America v. Viscomi (2019), 146 O.R. (3d) 145, [2019] O.J. No. 3103, 2019 ONCA 490 (C.A.), at para. 30. The argument that the applicant proposes to make is simple and straightforward. He was able to forcefully advance it on this application, both in writing and orally, on the basis of the contents of the ROC. I am satisfied that he has all that he needs to argue his challenge to the reliability of the identification process. I am not persuaded that further disclosure or an order requiring the calling of evidence might be expected to affect the outcome of the argument. [page354]
[33] In light of the foregoing, it is unnecessary to address the respondent's submission that this court has no authority to order the United States authorities to provide disclosure.
Disposition
[34] The application for further disclosure and/or an order requiring the calling of evidence is dismissed.
[35] It is startling to observe that notwithstanding that extradition proceedings are meant to provide a simple and expeditious means of responding to Canada's international obligations, a committal hearing has yet to be held, more than two years after the Minister of Justice issued the original authority to proceed. The s. 29 hearing should be scheduled and conducted as soon as practicable.
Application dismissed.
Notes
[^1]: United States of America v. Ferras, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 2006 SCC 33, at para. 54.
[^2]: United States of America v. Thomlison (2007), 84 O.R. (3d) 161, [2007] O.J. No. 246, 2007 ONCA 42 (C.A.), at para. 47.
[^3]: Ibid., at para. 8.
[^4]: M.M. v. United States of America, [2015] 3 S.C.R. 973, [2015] S.C.J. No. 62, 2015 SCC 62, at para. 72.
[^5]: United States of America v. Dynar (1997), 1997 359 (SCC), 33 O.R. (3d) 478, [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, at paras. 130-35, 144.
[^6]: United States of America v. Kwok, [2001] 1 S.C.R. 532, [2001] S.C.J. No. 19, 2001 SCC 18, at paras. 100, 101 and 106.
[^7]: 2002 45027 (ON CA), [2002] O.J. No. 3219, 163 O.A.C. 108 (C.A.).
[^8]: At para. 74.
[^9]: At para. 52 of the respondent's March 2019 Factum.
[^10]: At para. 26.
[^11]: At para. 53.
[^12]: At para. 63.
[^13]: At para. 39.
[^14]: At paras. 59 and 60.
End of Document