Court File and Parties
COURT FILE NO.: CR-22-03-MO DATE: 20220913
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA on behalf of THE UNITED STATES OF AMERICA Requesting State
– and –
JOHN FOLIOT Person Sought
Counsel: Adrienne Rice, for the Respondent on the disclosure application Mark Ertel, for the Applicant on the disclosure application
HEARD: May 27, 2022
ruling on an application for disclosure on an extradition proceeding
Muszynski J.
overview
[1] This application for disclosure arises in the context of an extradition proceeding.
[2] The Person Sought, John Foliot, is a Canadian citizen who now resides in Ontario. Mr. Foliot has been charged criminally in the state of California of an offence equivalent to sexual interference in Canada.
[3] The Attorney General of Canada, on behalf of the Requesting State – The United States of America, seeks to extradite Mr. Foliot to stand trial in California. The extradition hearing is scheduled for December 5, 2022.
[4] In advance of the extradition hearing, Mr. Foliot brings this application seeking disclosure from the Requesting State that may support an application to stay the extradition proceeding for abuse of process. Specifically, Mr. Foliot seeks an order compelling the Requesting State to produce:
a. The record of interviews with Mr. Foliot given voluntarily to Riverside County California and Williamson County Police;
b. Record of the Polygraph test and analysis of the results;
c. Police notes of any agreement with Mr. Foliot that a successful polygraph test would conclude the investigation; and
d. The basis for reviving the prosecution after Mr. Foliot was “cleared” of the offences.
ISSUE
[5] Should this court order the Requesting State to disclose the information requested by the Person Sought?
RESULT
[6] For the reasons that follow, Mr. Foliot’s application for disclosure is dismissed.
POSITIONS OF THE PARTIES
[7] Mr. Foliot submits that when the allegations of sexual impropriety were first made against him, he voluntarily submitted to interviews with police on three occasions, including a successful polygraph examination. Mr. Foliot’s cooperation with police and his exoneration established by passing the polygraph test were not mentioned in the Record of the Case (the “ROC”) relied on by the Requesting State nor were they raised by the Requesting State in the context of the contested bail hearing. During the oral hearing, counsel for Mr. Foliot made the submission that further disclosure from the Requesting State was required to establish whether there was any agreement not to prosecute Mr. Foliot if he submitted to, and passed, the polygraph test. Mr. Foliot submits that he may pursue an application for a stay of the extradition proceeding due to abuse of process and requires the disclosure requested to support such application.
[8] The Attorney General of Canada, on behalf of the Requesting State, takes the position that Mr. Foliot has failed to meet the three-part test for ordering the production of documents in an extradition proceeding set out in R. v. Larosa, 2002 CanLII 45027 (ON CA), [2002] O.J. No. 3219, 163 O.A.C 108 [Larosa]. In any event, it is submitted that this court does not have jurisdiction to order production of documents from a foreign jurisdiction.
BACKGROUND FACTS / PROCEDURE
[9] The Extradition Act, S.C. 1999, c. 18 [the Act], provides that a state or entity that has an extradition agreement with Canada may make a request for the provisional arrest or extradition of a person sought. Such requests are made to the Minister of Justice. The United States of America has an extradition agreement with Canada and is therefore considered an extradition partner pursuant to the Act.
[10] In this case, the United States of America requested that Mr. Foliot be committed for extradition to face the charges against him in California. The extradition process requires the requesting state to prepare a ROC that is available to the judge presiding at the extradition hearing and that is disclosed to the person sought. Section 33 of the Act provides that the ROC must provide a summary of the evidence available to the extradition partner for use in the prosecution and may include other relevant documents, including documents respecting the identification of the person sought for extradition.
[11] The ROC can only be admitted if a judicial or prosecuting authority of the extradition partner certifies that the evidence summarized or contained in the ROC is available for trial and is sufficient under the law of the extradition partner to justify prosecution or was gathered according to the law of the extradition partner: see the Act at s. 33(3).
[12] On August 12, 2021, Deputy District Attorney Scott P. Williams signed a “Certification of Record of the Case for the Prosecution” which confirmed that the evidence summarized “is available for trial and is sufficient under the laws of the State of California to justify prosecution.” The ROC includes allegations that Mr. Foliot sexually assaulted the adoptive grandchild of his former common law spouse on five occasions. The five assaults allegedly occurred between 2013 and 2015 when the victim was between the ages of 9 and 10 years old. Specifically, it is alleged that Mr. Foliot showed the child pornography, stroked the child’s penis, and had anal intercourse with the child. Will-say statements of the witnesses for the prosecution are included from: Mr. Foliot’s former common law spouse; the complainant; the complainant’s sister; the complainant’s great-grandfather; and the son of Mr. Foliot’s common law spouse. The ROC includes a photograph of Mr. Foliot and confirms that he was positively identified by the witnesses. The ROC does not include information about Mr. Foliot’s cooperation with investigators or the results of his polygraph test.
[13] Pursuant to section 15 of the Act, on December 13, 2021, the Minister of Justice issued an Authority to Proceed authorizing the Attorney General of Canada to seek an order for Mr. Foliot’s committal for extradition.
[14] Following an application under section 16 of the Act, on January 26, 2022, a warrant for Mr. Foliot’s arrest was issued by Ontario’s Superior Court of Justice.
[15] On February 1, 2022, Mr. Foliot was arrested at his home in Lanark, Ontario.
[16] A bail hearing took place on February 17, 2022, and Mr. Foliot was released on the same day with conditions.
[17] On March 9, 2022, Mr. Foliot wrote to the Department of Justice Canada requesting disclosure of record of interviews and the polygraph test, police notes of any agreement with Mr. Foliot that a successful polygraph would conclude the investigation, and the basis for reviving the investigation.
[18] On March 17, 2022, counsel for the Department of Justice Canada responded to Mr. Foliot’s request for disclosure. Mr. Foliot’s request was denied on the basis that a disclosure request beyond what is contained in the ROC can only be considered in cases of alleged Charter breaches that are inexorably linked to the committal function of the extradition judge, which was not the case here, and that there is no authority for an extradition judge to order production of disclosure that is not in Canada.
[19] Mr. Foliot’s application for disclosure was heard on May 27, 2022.
ANALYSIS
Sufficiency of the ROC
[20] In his written materials, Mr. Foliot submits that the fact that his cooperation with investigators and submission to a polygraph test were not mentioned in the ROC was problematic. However, in oral submissions his counsel acknowledged that it was not necessary for the Requesting State to have included that information in the ROC.
[21] Indeed, the parties agree that the disclosure obligations in an extradition proceeding are vastly different than in a domestic criminal proceeding. In an extradition proceeding, the person sought is generally not entitled to disclosure beyond what is contained in the ROC to establish a prima facie case for committal: United States of America v. Dynar 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, 33 O.R. (3d) 478 at paras. 134, 144. A ROC does not have to include a summary of all the evidence the Requesting State intends to lead at trial to support its request for extradition: United States of America v. Efevwerha, 2020 ONSC 7950 at pages 9-10. More applicable here, and as noted in United States of America v. Tollman [2006] O.J. No. 5588, 2006 CarswellOnt 6831 [Tollman] at para. 71: “There is no obligation on a requesting state to include in a ROC a summary of the evidence that may be of assistance to defence of the person charged.”
[22] I take no issue with sufficiency of the ROC as filed in this case. The ROC establishes a prima facie case against Mr. Foliot, which is all that is required of the Requesting State.
Abuse of Process Claim
[23] An extradition judge has residual discretion to ensure that the committal hearing is fair: United States of America v. Cobb, 2001 SCC 19 [Cobb] at para. 34. If the judicial process is determined to have been unfair, a remedy available to the extradition judge is to stay the proceeding on the basis of abuse of process. It is this remedy that Mr. Foliot may pursue.
[24] When there have been allegations of a Charter breach or an abuse of process made in relation to the committal stage of the extradition process itself, it may be appropriate to order additional disclosure. In this case, Mr. Foliot submits that the disclosure sought may provide evidence of an agreement or deal between Mr. Foliot and the authorities in California and Texas. Specifically, he submits that the authorities in the United States would not prosecute him if he submitted to a polygraph test and passed or otherwise cooperated with the investigation. If such an agreement exists, then Mr. Foliot can advance it as evidence to support his claim of abuse of process and request that the extradition proceeding be stayed.
[25] In these situations, the test set out by the Court of Appeal for Ontario in Larosa must be applied. The Larosa test for ordering production of documents in an extradition proceeding set out in para. 76 is as follows:
a. The allegations of Charter breach or abuse of process must be capable of supporting the remedy sought;
b. There must be an air of reality to the allegations; and
c. It must be likely that the documents sought would be relevant to the allegations.
[26] In my view, Mr. Foliot fails on the first stage of the Larosa test.
[27] To appreciate the evidence before me at this hearing, the entirety of Mr. Foliot’s affidavit is produced below:
I am the person sought in this matter.
I was arrested on February 1, 2022 at my home in Lanark, Ontario.
On February 17th, 2022, I was released on bail. I filed an affidavit and testified at my bail hearing.
In my affidavit and my evidence, I described some history of this matter that was not before the Court in the materials filed by the United States.
Specifically, I mentioned how I cooperated with authorities by submitting myself to two interviews and a polygraph test.
I was informed, by police at Williamson County Sheriff’s Department in Texas, that I ‘passed’ the polygraph test and my innocence had been established. I was advised that I was free to go and I would not be further questioned because I had been entirely truthful in denying the allegations.
My cooperation with police and my exoneration were not mentioned in the record of the case.
On the bail application, the United States responded with a package of materials that included a letter form Michael A. Hestrin who is District Attorney for the county of Riverside. In his letter he states in part that I am a flight risk without any reference to my cooperation with US authorities at every step of the investigation.
At the bail hearing, I was not cross-examined about my cooperation or exoneration, and I was released. The Extradition Bail Judge commented on the relevance of my cooperation to whether I am a flight risk.
I make this affidavit in support of my application for disclosure and for no improper purpose.
[28] The affidavit raises two issues to be addressed: the initial investigation; and the representations by the District Attorney made regarding Mr. Foliot being a flight risk at the bail hearing.
[29] I will first address the bail hearing. As part of a package of documents filed on the bail hearing, the Attorney General of Canada, on behalf of the Requesting State, included a letter from the District Attorney wherein concern was expressed about Mr. Foliot being a flight risk. At the bail hearing itself, the admissibility of the letter was specifically addressed after an objection was made by Mr. Foliot’s counsel. On the record, counsel agreed that the only admissible information from that letter was the length of sentences for the charged offences in California. There is no allegation that the District Attorney’s letter contained any misrepresentations, only that he did not include information about Mr. Foliot’s cooperation with authorities – which is undisputed. I do not accept that the comments contained in District Attorney’s letter, which were not admitted into evidence, could support a finding of an abuse of process capable of staying the broader extradition proceeding in any event.
[30] With respect to the initial investigation, an extradition proceeding can be stayed for abuse of process when the proceeding itself offends an agreement made between the requesting state and the person sought: S.(R.) v. S.(P.) Abuse of Process Decision Unreported February 14, 2005 [S.(R.)].
[31] The caselaw is clear that stays for abuse of process involving “deals” or “agreements” involve situations where the person sought has compromised their position or made a real concession in exchange for an end to a prosecution. The deal must include an actual agreement, not just an understanding that the charges would not be pursued: see S.(R.) at para. 46.
[32] In this case, Mr. Foliot seeks disclosure from the Requesting State from the initial investigation including any agreement that a successful polygraph test would conclude the investigation. However, Mr. Foliot’s affidavit does not provide an evidentiary foundation for such a request. Mr. Foliot does not allege that there was an agreement of any sort between himself and the American investigators. He does not allege that he entered into a deal. He does not allege that he has been prejudiced or that he altered his position or acted to his own detriment as a result of any agreement or deal.
[33] A stay of proceedings of an extradition proceeding for abuse of process is “rarely warranted” and noted as being an “exceptional remedy reserved for the clearest of cases involving the most egregious forms of state conduct or other abuse, where the continuation of the judicial proceedings would irreparably prejudice the integrity of the justice system.”: United States of America v. Jones, 2022 ONSC 1711 at para. 23.
[34] It is not enough to establish that the police told Mr. Foliot that they would not pursue the charges: see S.(R.) at para. 46. The bald allegation of the potential existence of an agreement advanced by counsel in argument, is simply insufficient without any evidence from Mr. Foliot that corroborates the same or sets out how he acted on such an agreement in a way that resulted in him being prejudiced.
[35] To allow this request for disclosure under these circumstances, given the lack of evidentiary foundation for the request, would be tantamount to allowing Mr. Foliot to engage in a fishing expedition.
[36] On the facts of this case and based on the evidence before me, I find that the allegations are not capable of supporting the remedy sought, which would ultimately be a stay of the extradition proceeding on the basis of abuse of process. Mr. Foliot has failed to meet the first criteria of the Larosa test and, accordingly, his request for disclosure is denied.
Jurisdiction to Order Disclosure from a Foreign Jurisdiction
[37] Although I have ultimately determined that Mr. Foliot’s application must fail, I will briefly address the issue of this court’s jurisdiction to order disclosure from a foreign jurisdiction specifically in the context of an abuse of process application.
[38] The role of the requesting state in an extradition proceeding, as a party, is significant and was acknowledged by the Supreme Court of Canada in Cobb: “The Requesting State is a party to judicial proceedings before a Canadian court and is subject to the application of rules and remedies that serve to control the conduct of parties who turn to the courts for assistance.”: see para. 35.
[39] This sentiment was echoed in Tollman by A.M. Malloy J. who writes at para. 59:
The United States is not a stranger to the proceedings; it is a party litigant. As such, it is subject to the jurisdiction of this court. Having invoked the jurisdiction of this court, it is not open to a litigant to take the position that its foreign status renders it immune from the processes of the court. This is not a situation in which a party requests the court to make an order for production to take effect outside Canadian borders against a stranger to the litigation. The court would not make such an order as there would be no remedy because, in the event of the breach, that party’s right to any relief sought from this court would end. There is nothing unusual about a court in Canada ordering a party to a proceeding who lives outside Canada to produce documents or attend for examination. It happens virtually every day of the week in civil proceedings. From a jurisdictional perspective, ordering production by the United States in connection with this abuse of process application is no different.
[40] Further, the Court of Appeal for Ontario in Larosa acknowledged that a Person Sought may require the assistance of the court to obtain the evidence necessary to support a claim of abuse of process: “Much of the relevant information will be in the possession of the state against whom the allegations of misconduct are made. The appellant may well not have access to that information without the assistance of the court…”: see para. 74.
[41] Although I decline to do so in this case for the reasons set out above, in my view, there is authority that supports the notion that this court has jurisdiction to order disclosure from a requesting state in the context of a claim of abuse of process relating to the committal hearing.
CONCLUSION
[42] The application for disclosure is dismissed.
Muszynski J.
Released: September 13, 2022
ONTARIO SUPERIOR COURT OF JUSTICE
THE ATTORNEY GENERAL OF CANADA on behalf of THE UNITED STATES OF AMERICA Requesting State
– and –
JOHN FOLIOT Person Sought
REASONS FOR JUDGMENT
Justice K. Muszynski
Released: September 13, 2022