COURT FILE NO.: 18-90000121-00MO
DATE: 20201130
SUPERIOR COURT OF JUSTICE – ONTARIO
IN THE MATTER OF an Application pursuant to section 29 of the Extradition Act for an order committing Tenzin Norbu a.k.a. Tenzin Pasang a.k.a. Passang Tsering a.k.a. Sonam Sangpo a.k.a. Tenzin Namgyal a.k.a. Tenzin Lama into custody to await the Minister’s decision on whether he should be surrendered to the United States of America
RE: THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE united states of america, Applicant
AND:
tenzin norbu a.k.a.TENZIN PASANG a.k.a. PASSANG TSERING a.k.a. SONAM SANGPO a.k.a.TENZIN NAMGYAL a.k.a.TENZIN LAMA, Respondent
BEFORE: S.F. Dunphy J.
COUNSEL: Adrienne Rice, for the Applicant
Leo Adler, for the Respondent
HEARD at Toronto: November 20, 2020
REASONS FOR DECISION
[1] On November 20, 2020, I conducted an extradition hearing in respect of Mr. Norbu as prescribed by s. 24(1) of the Extradition Act, S.C. 1999, c. 18. I reserved my decision on the matter until today. These reasons shall constitute my report to the Minister pursuant to s. 38(1)(c) of the Act.
[2] For the reasons that follow, I find that the applicant has discharged its burden of demonstrating that the conditions prescribed by s. 29(1)(a) of the Extradition Act are satisfied in this case. An order of committal in respect of Mr. Norbu shall be made in the form prescribed by s. 29(2) thereof.
[3] There is no serious dispute regarding the first aspect of the test for committal set forth in s. 29(1)(a) of the Extradition Act. The respondent concedes that the record of the case filed contains sufficient particulars of conduct that, had it occurred in Canada, would justify committal for trial for the offence of counselling misrepresentation contrary to s. 126 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 in respect of the three specific instances referenced. The record of the case refers to 31 other instances of alleged conduct that may also constitute offences about which the respondent alleges insufficient particulars have been provided to assess the double-criminality standard. In my view, this objection is no bar to the issuance of a committal order but may warrant comment in my report. I shall expand upon this issue in my reasons which are my report to the Minister under s. 38(1)(c) of the Act.
[4] The main dispute in this case concerned the question of whether the respondent Mr. Norbu before this court and the Mr. Norbu who is being sought by the United States are the same person. I am satisfied that this is so. Mr. Norbu bears the same name as the person sought and his features resemble the man depicted in the photograph of Mr. Norbu included in the record of the case and certified by the United States for the purposes of this proceeding even if that photograph is clearly a dated one. The record of the case also specifically identified the person before this court – then in custody – as the person sought by the United States.
Background facts
[5] Following receipt of a request from the United States of America, the Minister of Justice issued an Authority to Proceed in this matter dated September 7, 2018 pursuant to s. 15 of the Extradition Act authorizing the Attorney General to proceed before the Superior Court to seek an order of committal and certifying that the Canadian offence corresponding to the conduct charged by the United States is that of counselling misrepresentation contrary to s. 126 of the IRPA.
[6] Pursuant to s. 126 of the IRPA “[e]very person who knowingly counsels, induces, aids or abets or attempts to counsel, induce, aid or abet any person to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act is guilty of an offence”.
[7] On July 2, 2018, Ms. Tara M. La Morte, Assistant United States District Attorney for the Southern District of New York certified the record of the case for the prosecution as being “sufficient under the laws of the United States to justify prosecution”, which certificate satisfies the requirements for admission of the record of the case as evidence at this hearing pursuant to s. 33(3)(a)(ii) of the Extradition Act.
[8] The record of the case summarizes the evidence expected to be given by five witnesses at the trial of Mr. Norbu which summaries are further condensed by me (for the purposes of these reasons) as follows:
a. Mr. Williams, a supervisory official with the Fraud Detection and National Security Section of the United States Citizenship and Immigration Services will testify regarding the nature of the process by which foreign persons may apply for asylum in the United States. He will describe his analysis of 34 applications that he reviewed and found to be fraudulent in material ways and will state that Mr. Norbu was associated with each of these applications. The applications all contain portions intended to reflect the individual applicant’s personal experience but instead contain one or more paragraphs that are repeated verbatim in other applications. He will describe the process by which these 34 applications and the applicants who made them were reviewed, interviewed and will testify as to the ultimate decision rendered with respect to them. His testimony will also include details with respect to the applications of three of the thirty-four applicants whose testimony is referred to below.
b. D.N., a native of Bhutan, will testify that Mr. Norbu offered to help him prepare documents for asylum benefits for a fee of $6,000 in 2013. Although he advised Mr. Norbu of his birth in Bhutan and his legal status in the United States, the claim prepared by Mr. Norbu for D.N. contained a number of false statements including an allegation that he was born in Tibet instead of Bhutan and had no legal status in Bhutan. Mr. Norbu provided D.N. with false identification documents from the Government of China and from the Tibetan Government in Exile and counseled D.N. about what to say during the proceeding, including as to false statements regarding his ethnicity and background. Mr. Norbu listed “Sonam Sangpo” as the document preparer of Mr. D.N.’s application. The documents and information were presented by Mr. D.N. to an asylum officer of the United States government.
c. S.T., also a native of Bhutan, met Mr. Norbu, whom he also knew as “Passang Tsering”. For a fee, Mr. Norbu offered to assist Mr. S.T. to prepare an asylum application. Although advised that Mr. S.T. was not Tibetan, Mr. Norbu provided Mr. S.T. with application documents and identification documents identifying himself as a Tibetan born in Tibet and relating details of an alleged raid by Chinesse authorities on a monastery in Tibet that Mr. S.T. was supposed to have belonged to. The application documents, listed the document preparer as “Passang Tsering”. The documents were presented by S.T. to an asylum officer of the United States government.
d. Y.Z., also a native of Bhutan, will testify that she met Mr. Norbu, who identified himself to her as “Tenzin Passang” during a visit to the United States. He offered to assist her in preparing documents for an asylum application in the United States for a fee. Although advised that she was not Tibetan, the application documents prepared by Mr. Norbu for her described her as Tibetan. Mr. Norbu provided her with false identification documents including a birth certificate that was not her own and a Tibetan Green Book purporting to be issued by the Tibetan Government in Exile. This false information was presented by Ms. Y.Z. to an asylum officer of the United States government.
e. Ms. Elaine X. Wooten is expected to testify as a forensic document examiner who has examined the alleged Chinese and Tibetan Government in Exile identification documents provided to D.N. and S.T. and found they were produced from a common source in addition to identifying certain other characteristics of them indicating alterations.
[9] The record of the case indicates that D.N. identified a photograph attached to the record of the case as being Tenzin Norbu, the individual who prepared his asylum documents and provided him with the doctored identification documents. It further indicates that S.T. also identified the same photograph as being the person who prepared his asylum application and provided him with false identification documents.
[10] Finally, the record of the case states that Tenzin Norbu sought by the United States government “is currently located at the Toronto East Detention Centre” and provides various aliases of Mr. Nobu and dates of birth as “02/17/1949, OR 09/05/1974 OR 06/07/1975”.
[11] The respondent filed a “Respondent’s Revised Application Record” that included the Notice of Application dated May 10, 2018 by the applicant under s. 13(1) of the Extradition Act for a provisional arrest warrant in respect of Mr. Norbu as well as the affidavit of D.C. Dean of the Toronto Police Service that was filed in connection with that application. The applicant takes the position that these documents ought not to be admitted into evidence at the extradition hearing itself as they do not satisfy the criteria for admissibility.
Issues to be decided
[12] The following issues require a decision by me in order for me to rule on the Attorney General’s application:
a. Ought the various documents tendered by the respondent be admitted into evidence and considered on this application?
b. Has the Attorney General demonstrated that there is evidence of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence described in the Authority to Proceed? and
c. Is the respondent before the Court the person sought by the United States?
Discussion and analysis
(a) Ought the various documents tendered by the respondent be admitted into evidence and considered on this application?
[13] Extradition hearings are intended to be expeditious and efficient proceedings to determine whether the person sought should be surrendered to the foreign requesting state so that a trial may be held. Extradition hearings are not themselves trials. My role in hearing this application is an important one but it is also a circumscribed one. My task is to examine the evidence and determine whether it justifies committal having regard to the two tests set forth in s. 29(1)(a). Those two tests may be referred to for convenience as the “double-criminality” test and the identity test.
[14] The Extradition Act also addresses the types of evidence admissible at the hearing. The primary source of evidence is usually the record of the case where, as here, that record has been certified by the requesting authority as sufficient to justify prosecution: Extradition Act, s. 32(1)(a) and s. 33(3)(a)(i). In effect, Parliament has prescribed that the reliability of this category of evidence is vouchsafed by the process of certification and the process by which Canada’s treaty partners are selected and approvals to proceed are granted. Evidence certified in this manner, even if not otherwise admissible under Canadian law, is presumed to be reliable: United States of America v. Ferras; United States of America v. Latty, 2006 SCC 33, [2006] 2 SCR 77 at para. 52.
[15] The presumption of reliability that attaches to a certified record of the case is not an irrebuttable one nor is the process of reviewing that evidence a mere rubber stamp. The responding party is entitled to seek to impeach the reliability of the applicant’s evidence and this court must examine all of the evidence found to be reliable in order to determine whether the conditions of s. 29(1) for issuing a committal order have been met. Section 32(1)(c) of the Extradition Act permits me to receive evidence adduced by the person sought – even if not otherwise admissible[^1] – if it is relevant to one of the tests in s. 29(1) and “if the judge considers it reliable”.
[16] Because my task under s. 29 is to examine the sufficiency of the evidence relative to the standard of committal and not relative to the standard of guilt beyond a reasonable doubt, it follows that my role does not include the weighing of evidence or an assessment of the strength of the case in the way a trial judge would do. That is what trials are for and this court is not the trier of fact on the ultimate questions of guilt or innocence.
[17] Parliament has enacted a two-stage process to govern the admission of evidence from the person sought: both relevance and reliability must first be made out. These questions are not assessed in a vacuum but must be assessed relative to the task before me. Since it is not my task to weigh the evidence adduced by the applicant or to make findings of credibility, it follows that relevant and reliable evidence adduced by the person sought must be of a type that can reasonably be expected to impeach some or all of the applicant’s evidence as being “so defective or …unreliable that the judge concludes it would be dangerous or unsafe to convict…and is therefore not sufficient to meet the test for committal”: Ferras at para. 54. To the extent that any “weighing” of evidence takes place in an extradition hearing, it is to this standard and for this purpose.
[18] Justice Cromwell, writing for the majority in M.M., summarized the test for admissibility of evidence tendered by the person sought in this way (at para. 78):
I conclude that in order to admit evidence from the person sought, directed against the reliability of the evidence of the requesting state, the judge must be persuaded that the proposed evidence, considered in light of the entire record, could support the conclusion that the evidence essential to committal is so unreliable or defective that it should be disregarded.
[19] This may seem counterintuitive given that the test for relevance and reliability for the purposes of admissibility is not normally a particularly high one. The reason for this goes back to my circumscribed role: my task is not to weigh evidence or to make definitive findings of fact leading to a determination of guilt or innocence. If the proposed evidence is not at least potentially of a nature as to lead me to conclude that I must disregard evidence of the applicant which is otherwise adequate and sufficient to warrant committal, it is not relevant to my task and ought not to be received[^2]. Otherwise, I should be drawn into the task of weighing competing evidence which is not my role at an extradition hearing.
[20] There were four categories of proposed documents that I was able to determine quite readily do not meet the test for admission after a brief voir dire conducted at the opening of the hearing. These four categories of documents are as follows:
a. Tab 7 of the Respondent’s Revised Application Record was a general historical overview document prepared by the Central Tibet Administration. The record of the case describes the Central Tibet Administration as being akin to the Government of Tibet in exile. The document is an overview of Tibetan history with particular emphasis on disputes regarding China’s claim to sovereignty over Tibet. Whether or not this is a document of which judicial notice might potentially be taken, the respondent readily conceded that the relevance of this document to the issues before me was slight at best.
b. The respondent’s factum contained an appendix with hyperlinks to a number of “secondary sources” including various media articles referencing the case of Mr. Hassan Diab. These unsworn documents also fail to satisfy the minimum standards of relevance and reliability and were not admitted into evidence.
c. Tab 4 of the Revised Record contained a copy of correspondence from Mr. Adler on behalf of his client to the Minister of Justice from May 2018. This document is patently irrelevant to the issues before me and Mr. Adler did not press for its consideration in argument. For greater certainty, it is excluded from evidence.
d. Tab 8 of the Revised Record contained a number of United States government forms in blank, apparently of the type needed to make an asylum claim in the United States. I have no evidence that these forms are the same as the forms in use in the years relevant to the complaint against Mr. Norbu. These documents fail to satisfy the minimum threshold for reliability or relevance and I excluded them.
[21] I reserved my decision on the question of the remaining documents sought to be adduced by the respondent because it quickly became apparent that debate on their admissibility would require a thorough appreciation of the position of both parties on the underlying merits of the application itself. At the suggestion of the respondent I ordered that the matter should proceed in the manner of a blended voir dire. In my view proceeding in any other way was simply inefficient and duplicative.
[22] The remaining disputed documents consisted of documents from this court’s file relating to the application for a provisional arrest warrant in respect of Mr. Norbu, including the affidavit of D.C. Deans (including exhibits) referred to above. This application saw the issuance of the provisional arrest warrant which resulted in Mr. Norbu’s arrest for the purposes of this extradition hearing (Mr. Norbu was subsequently granted judicial interim release).
[23] Mr. Adler for the respondent argued that these documents ought to be admissible. They are part of the court record in this same Superior Court proceeding and contain information relevant to the matter of the identification of Mr. Norbu as the person actually sought by the United States. This evidence has obvious potential relevance to the identification of Mr. Norbu as the person sought by the United States and is sufficiently reliable to be received in evidence here being the very court record upon which a provisional arrest warrant to apprehend Mr. Norbu was issued.
[24] Ms. Rice on behalf of the applicant submitted that the record of the case contains sufficient evidence to permit identification of Mr. Norbu. Under s. 32(1)(c) of the Extradition Act, there is no general right of a respondent to adduce evidence at an extradition hearing unless it can be shown to be both relevant and reliable. The test, she submitted, is not satisfied here because the proposed evidence does not undermine the reliability of the identification evidence in the record of the case, it reinforces it.
[25] I have reviewed all of the proposed evidence and the arguments advanced based upon it. Taken at its highest, this evidence does not lead me to disregard as unreliable the identification evidence otherwise before me. To the contrary, I find that the evidence strengthens – and significantly so - the reliability of the applicant’s evidence regarding the identification of the person sought.
[26] The proposed evidence does raise questions that are not necessarily explicitly answered by that same evidence. By way of example, the proposed evidence contains a photograph provided by the United States Marshall Service and identified as a photograph of Mr. Norbu. That photograph depicts a man with greying hair who is older than the man depicted in the photograph attached to the record of the case. Does such a photograph undermine the reliability of the record of the case to the point of displacing the presumption of reliability attaching to it? In my view it does not.
[27] I have compared the two photographs. It appears to me that they are very likely two photographs of the same man taken several years apart. Were it my task to make findings of fact – and it is not – I should find that the same man is depicted in both. It is evident from the proposed evidence that Mr. Norbu was in the United States for at least fourteen years prior to his detention in these proceedings and possessed identification issued by the United States government. It is evident from the record of the case that the incidents underlying the complaint took place over a period of years including some identified as early as 2014.
[28] While the proposed evidence does not include an explanation from any official of the United States of the provenance of the two photos identified as being of Mr. Norbu or an assertion that they were both of the same man taken at different ages, the record of the case is not required to anticipate issues that themselves are not essential to the case. In effect the respondent seeks to raise straw men up with the proposed evidence and then to submit that the record of the case is not reliable because it has not knocked them down by anticipation. The inference that the photographs are of the same man is a strong one and supported by the evidence of the chronology.
[29] The simple fact of the matter is that the proposed evidence, viewed as a whole and in the context of the record of the case, does not undermine the reliability of the identification evidence of the applicant. It reinforces it. The description in that affidavit and its attachments of how Toronto police working with Canada Border Services and the United States Marshalls found Mr. Norbu in Peterborough and identified him leads to the very strong inference that the person before the court is the very person sought by the United States. However, the process of arriving at these conclusions and inferences requires me to follow the respondent down a rabbit hole packed full of collateral issues that has no place in an extradition hearing. Can the hearsay evidence of Canada Border Services be admitted? Does it qualify as a business record? How much of the evidence in the affidavit was gathered in Canada and is subject to Canadian evidence law generally and how much was gathered in the United States and is potentially subject to a different standard of admissibility?
[30] While I am ruling that the evidence ought not to be admitted into evidence, my decision on the merits of this application would not be altered in the slightest were I to admit it and rely upon it. As I have said, the additional photographic evidence and the history of how the investigation led to the identification of Mr. Norbu in Peterborough very strongly support the conclusions I have reached without reference to that evidence.
(b) Has the Attorney General demonstrated that there is evidence of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence described in the Authority to Proceed?
[31] Mr. Adler agreed that the record of the case describes conduct by Mr. Norbu that, had it occurred in Canada, would constitute an offence under s. 126 of the IRPA as regards the three named victims (D.N., S.T. and Y.Z.). That conclusion appears to me to be fully justified on the evidence before me. Mr. Norbu is alleged to have knowingly counselled the three identified applicants for asylum status in the United States to make false representations regarding their personal circumstances that were plainly material to the asylum applications being made and provided them with false or altered documents to be used in that connection. Such conduct if proved would unquestionably amount to a violation of s. 126 of the IRPA had it occurred in Canada.
[32] I find that the double-criminality standard is satisfied as regards the conduct alleged against Norbu in respect of the three named victims.
[33] Mr. Adler urged me to find that the record of the case does not satisfy the test of committal as regards the remaining 31 allegedly fraudulent applications described therein. He suggested that the record of the case makes broad and conclusory statements alleging fraud in the case of the 31 other applications supported by general allegations these contained elements in the nature of “boiler-plate” that were copied from other applications. He said that such “boiler-plate” descriptions of common occurrences cannot be the foundation of a claim capable of amounting to a violation of s. 126 of the IRPA had it occurred in Canada and committal could not be ordered in respect of that conduct.
[34] Is this objection well-founded?
[35] The record of the case establishes that Mr. Williams is a Supervisory Immigration Officer attached to the Fraud Detection and National Security Section of the United States Citizenship and Immigration Services. His duties include overseeing investigations and he is responsible for the fraud detection efforts of the New York City branch of his employer.
[36] Mr. Williams’ expected testimony will include the results of his review of these application files that are associated with Mr. Norbu “and which contain boilerplate narratives of persecution on account of Tibetan ethnicity” which he will describe as “fraudulent” and will themselves be introduced into evidence. His evidence will indicate an explanation of why the narratives of persecution are material to the decision-making process in respect of the applications in question. He will testify that Mr. Norbu was involved as document preparer in each of the 34 applications (which figure includes the three applications specifically described of D.N., S.T. and Y.Z.). He will testify that none of the applications among the 34 is unique – each contain portions of the narrative intended to reflect the applicant’s personal experience that appear verbatim in one or more of the other applications. He will be able to explain the results of interviews of the applicants and the decisions ultimately rendered in respect of each.
[37] The three essential elements of the offence under s. 126 of the IRPA are that the accused person (i) counselled, induced, aided or abetted another person; (ii) “to directly or indirectly misrepresent …material facts relating to a relevant matter”; and (iii) that such misrepresentation “induces or could induce an error” in the application of that Act.
[38] The record of the case contains some evidence of conduct by Mr. Norbu that, if proved at trial, would discharge the prosecutor’s burden of proof for each of these essential elements.
[39] The record of the case advances a specific allegation that Mr. Norbu was the document preparer in respect of each of the subject asylum applications. That evidence coupled with Mr. Williams’ description of the document-preparer’s role is capable of satisfying the first essential element.
[40] Mr. Williams’ evidence also describes the material nature of the information regarding the personal experiences of persecution of each applicant. It is these passages that are alleged to have been fraudulent. Taken as a whole, this evidence satisfies the third essential element of the analogous Canadian offence as I have described it.
[41] The main issue here is the second essential element which contains both an objective component and a subjective or mental element. The objective component is the counselling to make a statement that is in fact a misrepresentation. The mental element is the knowledge that the statement in question is in fact a misrepresentation.
[42] Mr. Williams reviewed each of the applications and the files relating to them, informing himself of the interviews with the applicants, the investigations made by his department and the ultimate disposition of the files. This same Mr. Williams, having significant responsibilities in the field of fraud detection and investigation in connection with asylum applications described these files as fraudulent and will testify about each of them. A reasonable inference of that description in this context is that he found the applications contained statements relating to material aspects that were untrue and that he reached this conclusion as a result of receiving information about the interviews with the subject applicants and the ultimate disposition of their applications. He described the boilerplate portions of the applications as being intended to reflect personal experiences of persecution and why these statements are material to the application of the law to them. By describing these applications as fraudulent, a reasonable inference is that the boilerplate segments so-described do not represent the personal experiences of persecution of the relevant applicant.
[43] This evidence is sufficient to sustain the objective part of the second essential element. Taken as a whole, the evidence can reasonably be taken to be that the 31 subject applications each prepared by Mr. Norbu contained statements that were in fact misrepresentations regarding the personal experiences of persecution alleged by each of those asylum applicants. As Karakatsanis J.A. (as she then was) explained in Hungary v. Toth, 2011 ONCA 532 at para. 32: “while the Record of the Case must contain sufficient detail to permit the extradition judge to assess the sufficiency of the evidence, it need not describe the specific feature of the documents or the specific testimony that will support the summary of the evidence”.
[44] The path to satisfy the mental element of this second essential element is a little more tenuous. There is no specific statement – in the case of 31 of the 34 applications at least – to the effect that Mr. Norbu knew these applications were fraudulent when he prepared them. Nevertheless, there is evidence from which such an inference might reasonably be made. It can reasonably be inferred that a document preparer repeatedly resorting to boiler-plate accounts of what are required to be individual accounts of personal experiences to describe what are in fact fraudulent accounts of persecution that never happened was aware of the fraudulent nature of the accounts being inserted by him in words that were not those of the client. That inference would be fortified by the similar fact evidence of three instances where the client in question specifically advised Mr. Norbu of the true facts.
[45] I cannot say at this point how compelling the evidence of Mr. Norbu’s knowledge of the fraudulent nature of the 31 applications may prove to be at trial and of course it is not my role to weigh such evidence. The record of the case is not required to recite chapter and verse of the evidence by which such proof would be made. However it does indicate that the applications are available and will be introduced into evidence.
[46] While it would have been preferable had the record of the case contained a more direct description of Mr. Norbu’s knowledge of the fraudulent nature of each of these 31 applications, there is evidence in the record of the case that if proved at trial would support the claim that he did. There is no evidence before me that would undermine the presumption of reliability attaching to the record of the case in respect of the 31 applications even if the evidence is somewhat sparser than it ought to have been.
[47] Taken as a whole, the conduct described would amount to a violation of s. 126 of the IRPA had it occurred in Canada in respect of the 31 applications not specifically described in the record of the case. Even were I to reach a different conclusion with respect to the 31 applications by reason of the lack of particulars of the mental element of the offence, I would not draw an adverse inference from that fact for the purposes of my report to the Minister. The record in respect of the three representative victims is plainly sufficient to support a committal order being made and I certainly have no basis to recommend that an undertaking not to prosecute be sought in respect of the 31 additional instances of fraudulent applications associated with Mr. Norbu.
(c) Is the respondent before the Court the person sought by the United States?
[48] The respondent argued very forcefully that the evidence of Mr. Norbu being the person sought by the United States is entirely inadequate and cannot justify committal. Mr. Adler pointed to the very sparse description of the circumstances by which D.N. and S.T. identified Mr. Norbu from a single photograph and to the fact that this photograph is of a man considerably younger than the man before me. He suggested that the lack of a line-up of photographs hopelessly taints this evidence. He urged me to take notice of the danger of relying on such intrinsically weak identification evidence.
[49] There may be cases where the only identification evidence is so tainted and inherently weak and frail as to lead to the conclusion that it could not be left to a jury and thus cannot sustain a committal either. This is not such a case.
[50] D.N. and S.T. are both alleged to have met with Mr. Norbu. They had discussions regarding their applications with him and provided him with information about their personal circumstances. In other words, Mr. Norbu was someone known to them. The fact that Mr. Norbu today looks considerably older than the man depicted in those photographs does not demonstrate that these two men could not have identified him from a younger-looking photograph particularly when their dealings with him were a number of years in the past. This is entirely different from the circumstance of an eye-witness to a traumatic crime who had only a limited opportunity to observe and remember the appearance of someone seen only briefly and in stressful circumstances.
[51] Other evidence ties Mr. Norbu to the applications by Ms. Y.Z. and the other 31 applications none of whom have – yet – been asked to identify Mr. Norbu either in person or from a photograph.
[52] Frailties in identification evidence seldom results in its entire exclusion from a trial – rather it results in a strong jury instruction. Unless the evidence is so frail that it cannot be left to a jury even with a limiting instruction, it is capable of supporting a committal. The identification evidence in this case is galaxies distant from the level of frailty necessary to exclude it from consideration entirely. In my view, the respondent’s arguments regarding the alleged frailty in the identification of the photograph attached to the record of the case as Mr. Norbu are without merit.
[53] I turn now to consider the adequacy of the evidence identifying the person before me as the person sought by the United States.
[54] Section 37 of the Extradition Act provides that evidence of the identity of the person before the court as the person named in the Certificate and record of the case (being the documents upon which this request is based) are “(a) the fact that the name of the person before the court is similar to the name that is in the documents submitted by the extradition partner; and (b) the fact that the physical characteristics of the person before the court are similar to those evidenced in a photograph, fingerprint or other description of the person”.
[55] The person before me has the same name – Mr. Tenzin Norbu – as the person sought by the United States and named in the record of the case and the Certificate of that record.
[56] The record of the case contains a photograph that is identified as being a photograph of Mr. Norbu. It was this photograph that was also identified by D.N. and S.T. The record of the case is presumptively reliable evidence of the matters stated in it for the purpose of this hearing even if that evidence is not otherwise admissible evidence by Canadian law standards.
[57] While the photograph in question is that is of a younger man than Mr. Norbu as he appeared before me via video link at the hearing of the application and in person upon delivery of these reasons, the man before me is still identifiable by me as the man depicted in that photograph. I reach that conclusion having compared my own observations of Mr. Norbu’s features as he has appeared before me to the features of the man depicted in the photograph.
[58] The record of the case also provides a location of Mr. Norbu at the time it was made (July 2, 2018) along with a list of known aliases, three possible dates of birth and eye and hair colour (the latter being described as brown). At the time the record of the case was certified, Mr. Norbu was detained under a provisional arrest warrant and was held at Toronto East Detention Centre, so this was the address given as Mr. Norbu’s location.
[59] The certified record of the case is presumptively reliable evidence of the matters set forth in it relevant to the committal hearing. This includes the statement regarding the location of the Mr. Norbu sought by the United States on July 2, 2020. I do not suggest that the statement is conclusive proof that the man before me is the man sought by the United States. I do however infer from this evidence that the requesting authority (i.e. the United States) was satisfied that the Canadian authorities had arrested and detained the right person. That is some evidence of the matter, even if not conclusive evidence.
[60] Mr. Adler suggested that “Norbu” may be a common Tibetan name and that there was not enough evidence that the Mr. Tenzin Norbu apprehended by Canadian authorities at the request of the United States is the same Mr. Tenzin Norbu named in the record of the case and in the authority to proceed. That submission implicitly misstates the nature of the inquiry at an extradition hearing.
[61] Identity is not required to be proved beyond a reasonable doubt. That is a matter for the trier of fact at trial. At the committal stage, the applicant is required only to prove identification to the balance of probabilities standard: Pacificador v. Philippines (Republic of), 1993 CanLII 3381 (ON CA) at para. 8. Mere speculation – unsupported by any positive evidence - of the possibility of a case of mistaken identity whether through similarity of name or otherwise is not evidence of actual mistaken identity.
[62] The United States has stated its basis for seeking Mr. Tenzin Norbu. Canada has apprehended Mr. Tenzin Norbu at the request of its treaty partner and authorized this hearing to consider the case for his committal. The person before me resembles the person depicted in the photograph attached to the record of the case, albeit several years older. The United States has certified that the man apprehended by Canada and detained by Canada (at that time) is the Tenzin Norbu sought by them. There is no evidence beyond bald speculation of there being an actual case of mistaken identity. I find that the man before this court is the man sought by the United States known as Mr. Tenzin Norbu.
Disposition
[63] I find that the applicant has provided me with evidence admissible under the Extradition Act of conduct that, had it occurred in Canada would justify committal for trial in Canada for the offence of counselling misrepresentation contrary to s. 126 of the IRPA and that Mr. Norbu, the person before this court, is the person sought by the United states.
[64] Accordingly, I find that Mr. Norbu shall be ordered into custody to await surrender pursuant to s. 29(1) of the Extradition Act. An order of committal shall therefore issue committing Mr. Tenzin Norbu to be held for extradition to the United States of America pursuant to the authority to proceed dated September 7, 2018 for conduct amounting to the Canadian offence of counselling misrepresentation contrary to s. 126 of the IRPA. I am directing the Registrar to prepare a formal order of committal that must contain the information prescribed by s. 29(2) of the Extradition Act.
[65] Mr. Norbu, you shall now be taken into custody as required by s. 29 of the Extradition Act. It is my duty to inform you that you will not be surrendered to the United States authorities until after the expiry of 30 days from today and that you have the right to appeal my order or to apply for judicial interim release.
S.F. Dunphy J.
Date: November 30, 2020
[^1]: This exception does not apply to evidence gathered in Canada which must comply with Canadian law in order to be admissible: Extradition Act, s. 32(2). Some of the evidence the applicant seeks to adduce is evidence gathered in Canada.
[^2]: I am not referring here to the narrow category of evidence that may not relate to the tests under s. 29 per se but may relate to matters that may form the subject of my report to the Minister under s. 38(1)(c).