Court File and Parties
COURT FILE NO.: CR-24-9000024-00MO DATE: 20241127 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Attorney General of Canada on behalf of the United States of America v. Ashley Ginette Keenan
BEFORE: Justice S. Nakatsuru
COUNSEL: Milica Potrebic, for the Attorney General of Canada Ashley Keenan, Self-represented Kevin Gray, as amicus curiae
HEARD: November 15, 2024
Endorsement
Overview
1Ashley Keenan is charged with murdering her mother in Ashtabula Township, Ohio. It is alleged, on January 11, 2024, Ms. Keenan, estranged from her family for several years, followed her mother to her mother’s home and shot her in the driveway.
2On January 14, 2024, Ms. Keenan had made her way to Toronto and walked into the front lobby of 22 Division and admitted that she shot her mother. She was arrested. She faces extradition back to the United States. The Attorney General of Canada has been authorized by the Minister of Justice of Canada to seek an order for the committal of Ms. Keenan to await surrender for murder.
3I have been appointed a case management judge in her extradition case. An extradition hearing date has not yet been set. There have been complications and delay. This motion is but one of them.
4Ms. Keenan brings a motion asking me to order disclosure. From many people and organizations. For many things.
5As is her right, she has chosen to represent herself on this motion. To help her and to help me, I have the appointed a lawyer, Mr. Gray. Though Ms. Keenan raises complaints about Mr. Gray, who was her past counsel in this case, his help is necessary. Also given some distinctive things about this case, another lawyer would not be as helpful. That said, the extradition judge can always retain another amicus if they see fit.
6Given her self-represented status and other factors particular to who she is, I will read my decision in court, so Ms. Keenan hears what I have to say and has the best chance of understanding why I decided in this way. Also, I will avoid, the best I can, talking about law and cases. This is not to say I have ignored the helpful legal arguments full of law and legal analysis given to me by the lawyers. And I have also listened very carefully to the lengthy arguments made by Ms. Keenan and have paid close attention to them. One such argument was that she needed further disclosure so that she can properly make a request for disclosure. In other words, to properly conduct this motion itself. I have taken that into account in coming to my decision.
7Let me begin with two observations that do not deal with the merits of the motion but are important to the conduct of the hearing. First, I have no grounds to believe that Ms. Keenan was not fit to conduct the hearing. Ms. Keenan herself strongly disputes she suffers from any mental illness and disagrees with Dr. Roland Jones’ diagnosis of her found in his report of October 7, 2024, that she suffers from a delusional disorder, paranoid type. More relevant is Dr. Jones’ conclusion that Ms. Keenan is fit to conduct this hearing. No party challenges that conclusion. Second, Ms. Keenan said that she would like to retain a lawyer to represent her. Her desire to represent herself has varied over time. Upon questioning of Ms. Keenan, it is clear to me that she wishes to speak for herself in court. She did so at this hearing. And she was able to make her points known. As well, amicus has provided a detailed list of her requests for disclosure. Amicus has also provided law in his written materials, highlighting the law and those authorities that favor her position. I have also tried to help her the best I could at this challenging hearing.
8In sum, I am satisfied that Ms. Keenan has had a fair hearing.
The Disclosure Requests
9Moving onto the merits of the motion. The long list of disclosure materials is set out in detail in amicus’s letter dated July 29, 2024, updated October 25, 2024. Without detailing each request, they broadly are: documents held by the Canadian Border Services Agency and the Toronto Police Service; devices held by the Toronto Police Service; documents held by the Vanier Centre for Women; documents held by hospitals in Ontario; communications between Canada and U.S. authorities; documents from the United States and Mexico; and documents held by the Canadian government.
10I will repeat what I said before in court. An extradition hearing is not a trial. The role of an extradition judge is limited. Also, the disclosure legally required to run a fair and just extradition hearing is different from the disclosure needed from a prosecutor to allow a defendant to make full answer and defence at trial. It is much less. Of a different nature. And for a different purpose.
11For Ms. Keenan’s benefit I will say this, just because I do not order something for the extradition hearing that she feels she needs to defend herself on the charge of murder, this does not mean that she will not receive such evidence before her trial. Likely she will.
12Moreover, my role is not to provide a fugitive disclosure to pursue inquiries into all sorts of complaints they may have against domestic or foreign state authorities. No matter how justified those complaints might be.
13Save for one exception, I do not order disclosure of any items Ms. Keenan wants. They do not meet the legal test of disclosure in R. v. Larosa, 2022 OAC 108 at para. 76. I agree with the written submissions of the Attorney General of Canada about the bulk of Ms. Keenan’s requests. While there may be exceptional circumstances where there is authority to do so, I do not generally have the authority to order foreign actors to disclose, to take actions, or conduct investigations. This is far from such an exceptional case to exercise this authority, even if I had it. Moreover, the various allegations of abuse or misconduct have no air of reality. And if they pass that modest threshold, they are not capable of supporting a remedy of a stay of proceedings for an abuse of process. For example, even if Ms. Keenan has not been adequately protected, treated, or cared for while in custody, they are incapable of leading to a stay of her extradition proceedings. Though I do not need to say, if true, these allegations could lead to other civil or criminal remedies. More specifically, even if her incarceration at the Vanier Center for Women was not Charter compliant, this situation is not capable of supporting the remedy of a stay of the extradition proceedings. Regarding the disclosure of the lengthy list of other items, even leaving aside issues of privilege and jurisdiction, most of these requests are overly broad and have no relevance to any of the allegations Ms. Keenan wishes to bring. They are truly fishing expeditions with the speculative hope that they might uncover something useful to her. Ms. Keenan’s request for disclosure to pursue disclosure is but an example. She hopes to uncover something but has no reasonable basis for her hope. I can easily foresee endless and boundless speculative requests for future ongoing disclosure if this type of motion is even remotely entertained.
14That briefly decided, there are two requests that need more careful scrutiny.
First Category: Police Notes and Recordings
15The first category is disclosure of the police notes, audio/video recordings, or other evidence held by the police about the interactions between Ms. Keenan and the police officers at 22 Division on January 14, 2022. The Record of the Case (ROC) names three officers who did: P.C. Richmond, P.C. Le, and D.C. Burns. There may be others as well who interacted with her during the time she was investigated and detained.
16I find that the test for disclosure has been met for this category of evidence. The ROC outlines how Ms. Keenan came into 22 Division and admitted her involvement in the murder. As I see it, this evidence will be significant for the extradition judge to consider when deciding the issue of committal for surrender. As the ROC reads, while the U.S. investigation up to that point, suspected Ms. Keenan’s involvement, no one could positively identify the shooter, or the vehicle driven by the shooter.
17Two material allegations arise based upon what is said and reasonable inferences from what is said in the ROC.
18The first one. Ms. Keenan disputes the accuracy of what the ROC outlines she told the police that night. The ROC only sets out in summary form what she said, especially to P.C. Richmond who first spoke with her. There is an air of reality to the possibility that Ms. Keenan’s statements were not fully and accurately set out in the ROC. I do not need an affidavit from her to support an inference that there may well be inaccuracies or other statements made by her that could vary the meaning or put into context her statements set out in the ROC. That is simply a matter of commonsense. Moreover, it is a matter of fairness that in these fact specific circumstances, where the ROC depends so heavily on Ms. Keenan’s “confession,” she should receive as complete a record of these statements as there exists for her to challenge her committal at the extradition hearing. The disclosure is relevant to this issue, and they are capable of supporting her remedy which is to challenge the reliability of those statements as found in the ROC.
19Second, Ms. Keenan was not given her right to counsel until she was placed under investigative detention by P.C. Le. However, before then, P.C. Richmond had already interacted and questioned Ms. Keenan. If P.C. Richmond detained Ms. Keenan, her right to counsel was violated given that P.C. Richmond did not tell her she had a right to counsel and by continuing to question her. Detention includes not just physical restraint but also psychological detention. If her right to counsel was violated, the statements she gave to P.C. Richmond as found in the ROC, could be excluded from her extradition hearing as a remedy.
20The Attorney General submits that there was no detention and that Ms. Keenan freely confessed to P.C. Richmond. That may well be the ultimate conclusion by the extradition judge. However, even as set out in the ROC, there is an air of reality to the allegation of a constitutional breach. Even after receiving information from Ms. Keenan that she killed her human trafficker, P.C. Richmond continued to question Ms. Keenan eliciting information about where it happened and who she killed. It is more than arguable that prior to questioning Ms. Keenan, he should have given Ms. Keenan her right to counsel. This allegation is capable of supporting the remedy of the exclusion of her statements at the extradition hearing. And the information sought is relevant to those allegations. Indeed, it would be standard disclosure if this was a domestic criminal prosecution.
21For these reasons, this disclosure is ordered.
22About the Canadian Border Services agents who may have interviewed her at 22 Division, they do not fall within the same category. There is no air of reality to any allegation they may have breached her constitutional rights. The ROC does not refer to the agents or any interview conducted by them. Any interview by a Canadian Border Services agent could only have come after her dealings with the police. After her detention, Ms. Keenan was given her rights to counsel and she spoke with duty counsel for half an hour. I see no air of reality to the allegation any Canadian Border Services agent violated her rights. In addition, given the ROC does not refer to any statements made by her to these agents, no remedy of an exclusion of evidence at her extradition hearing is implicated. Finally, if the remedy is a request for a stay due to the conduct of the agents, even if the agents did violate her rights, this violation is not capable of supporting the remedy of a stay. I conclude this even if I assess all the allegations of constitutional violations including these, cumulatively.
Second Category: Personal Property and Vehicle Contents
23The second category of potential disclosure has to do with her personal property or items found in the Ford Focus she drove to 22 Division.
24I have considered the following factors.
25First, I see that the ROC only mentions that the Toronto Police Service officers took possession of Ms. Keenan’s belongings and sealed and photographed the black Ford Focus bearing Texas license plate TPS 1996. P.C. Richmond then placed all the personal property taken off Ms. Keenan into a property bag which was provided to D.C. Burns. Although not contained in the ROC, it is not disputed that the police sealed the Focus and returned it to the United States with the owner’s consent. Counsel for the Toronto Police Service advised in a letter that the police sealed the Focus without any review or inventory of its contents. The ROC and the motion record does not refer to any evidence, whether inculpatory or exculpatory, as being a part of her belongings or in the Focus, aside from what Ms. Keenan initially told the police which was that she had evidence in her car including a gun in a safe.
26Second, the ROC refers to D.C. Burns providing Detective Ward of the Ashtabula County Sheriff’s Office the VIN and photos of the Ford Focus and certain details of bank and other cards in Ms. Keenan’s name. This sharing of information is something the police can legally do.
27Third, while Ms. Keenan says she has evidence that is exculpatory amongst her possessions, she is not entitled to lead her trial defense at the extradition hearing. So even if there was exculpatory evidence, such evidence is not relevant to the role of the extradition judge.
28Fourth, counsel for the Attorney General advises me that the United States has requested under the Mutual Legal Assistance Treaty, Ms. Keenan’s cellphone, clothing, and bank and financial cards seized by the Toronto Police Service. Ms. Keenan has been given a copy of the ex parte application record, two judicially authorized evidence gathering orders, and information regarding the Attorney General of Canada’s intention to make an application for a sending abroad hearing to which Ms. Keenan will be provided notice of.
29From these factors, I find that there was a reasonable basis to return the Ford Focus to the United States. The car did not belong to Ms. Keenan. It was a rental and reported stolen as it had not been returned to the car sharing agency. The owner consented to the police action to return the vehicle. Thus, there is no air of reality to any allegation that the return of the Focus was done illegally or for any improper purpose.
30More concerning are the contents of the car and Ms. Keenan’s personal property. Regarding the former, the letter from the Toronto Police Service states that the Focus was sealed without review or inventory taken of its contents. It does not say whether it was searched in any fashion before it was sealed. Regarding the latter, the Toronto Police Service have Ms. Keenan’s personal belongings. But under what legal authority did they seize these belongings?
31For the sake of assessing the disclosure request, I will assume the police conducted an illegal search of the vehicle’s interior and an illegal seizure of Ms. Keenan’s belongings or property. Having done that, I have decided that the test for disclosure has not been met.
32No remedy of an exclusion of evidence based on a Charter violation is involved as no evidence obtained from such a search will be presented at the extradition hearing. Therefore, there is no basis to order disclosure to pursue this particular remedy.
33The only other remedy would be a stay of proceedings. In my view, even if the police conducted an illegal search and seizure, their actions would not rise to the level of a stay of proceedings for abuse. I conclude this based on many cases that I know of in my many years as a judge, where the police have searched cars, residences, or persons, without proper legal authority. In none of these cases, on that basis alone, has there been a stay of proceedings. Disclosure of the documents sought by Ms. Keenan in relation to this issue, would not advance the remedy for a stay of proceedings. The standard that must be met for an abuse of process leading to a stay is extremely high. It will only be granted in the clearest of cases. Even assuming an air of reality to the allegation that the police conducted illegal searches and seizures, the allegations on the case specific facts of Ms. Keenan’s extradition is not capable of supporting such a drastic remedy.
Disposition
34For these reasons, the motion is only allowed in part.
Justice S. Nakatsuru Released: November 27, 2024.