RULING ON DISCLOSURE MOTION

Court File No.: CR-23-102-MO
Date: 2025-03-24
Ontario Superior Court of Justice
In the Matter of the Extradition Act, S.C. 1999, c. 18, as amended

Between:
The Attorney General of Canada on behalf of the United States of America
and
Juan Andres Donato Bautista

Before: Catrina D. Braid
Heard: October 21, 2024, December 5, 2024, and February 20, 2025

Counsel:

• Adrienne Rice, Counsel for the Requesting State/Respondent
• Brian Greenspan, Naomi Lutes, and Anna Zhang, Counsel for the Person Sought/Applicant

I. OVERVIEW

[1] The United States of America seeks the extradition of Juan Bautista to stand trial in Florida on charges corresponding to the Canadian offence of laundering proceeds of crime, contrary to s. 462.31(1) of the Criminal Code. It is alleged that Mr. Bautista (the “Applicant”) received bribes while he was the Chairman of the Commission on Elections in the Philippines. The purported bribes were paid by companies that were awarded contracts to supply voting machines and election services for the 2016 Philippines elections. It is further alleged that the Applicant laundered $1 million USD in bribe funds to purchase a property in San Francisco.

[2] On November 9, 2023, the U.S. certified its Record of the Case (the “ROC”) for prosecution in support of an extradition request to have the Applicant face trial in Florida. On December 20, 2023, the Minister of Justice (the “Minister”) issued an Authority to Proceed pursuant to s. 15 of the Extradition Act (the “Act”) authorizing the Attorney General of Canada (the “Attorney General”) to seek an order for the Applicant’s committal for extradition. The Applicant was arrested on September 28, 2023, pursuant to a provisional warrant.

[3] Shortly before the extradition hearing was scheduled to be heard, the Applicant filed an application seeking disclosure from the Attorney General of any records or documents relating to the Baumann Enterprises Limited (“Baumann”) bank account (the “Baumann Account”) as referenced in the ROC. More specifically, the ROC describes two wire transfers deposited into an account at the Bank of Singapore, both of which are alleged to be bribe payments. The Applicant had in their possession a letter from the Bank of Singapore suggesting that no remittances were made to that account at the relevant times. The Bank of Singapore letter appeared to contradict the ROC and thus the Applicant believed that further disclosure was necessary.

[4] The following issues arise on this application for disclosure:

A. Overview of the Extradition Process.
B. Has the Applicant Established Threshold Authenticity of the Bank of Singapore Letter?
C. Has the Applicant Satisfied the Test for Disclosure Based on Manifest Unreliability?

[5] For the reasons set out below, the application is dismissed.

II. BACKGROUND

[6] The Applicant is a citizen of the Philippines.

[7] In 2018, the U.S. Department of Homeland Security in Florida began investigating the Applicant for bribery and money laundering after an investigative agency in the Philippines relayed information about the Applicant that came from his wife. The information concerned unexplained wealth and transfers to a company, Baumann, that was partly owned by the Applicant. The transfers came from two apparent shell companies.

[8] During its investigation, Homeland Security established a connection between the shell companies and the company that was awarded contracts for election equipment and services. Homeland Security also learned that, in August 2016, these shell companies tried to send $2 million USD to the Baumann Account at the Bank of Singapore through the U.S. banking system.

[9] The ROC refers to the following transfers (and attempted transfers) to and from the Baumann Account:

i. On August 16, 2016, a $500,000 USD wire transfer was sent from a shell company to the Baumann Account but did not arrive due to an issue at the originating bank.
ii. On August 22, 2016, a second $500,000 USD wire transfer was sent from a shell company to the Baumann Account but did not arrive due to an issue at the originating bank.
iii. On August 29, 2016, $960,000 USD was transferred from the Baumann Account to a bank account in the U.S., and ultimately used to purchase a property in San Francisco.
iv. On August 29, 2016, $499,975 USD was wired from a shell company to the Baumann Account.
v. On August 31, 2016, $500,000 USD was wired from a shell company to the Baumann Account.

III. ANALYSIS

A. Overview of the Extradition Process

[10] Extradition is primarily a function of the executive branch of government and a product of international agreements between states with respect to the surrender of persons who are alleged to have committed crimes in other countries. According to the Act, the functional responsibilities with respect to each stage of extradition are divided between the judiciary and the executive. The phase involving the potential committal of the fugitive is the responsibility of the judiciary. The phase involving the potential surrender of the fugitive to Canada's extradition partner is the responsibility of the executive: USA v. Kwok, 2001 SCC 18, para 27.

[11] The Minister and extradition hearing judge occupy distinct roles under the Act. Each operates independently of the other and neither intrudes into the other's area of responsibility: Germany v. Schreiber, [2000] O.J. No. 2618 (S.C.), para 72.

[12] Extradition serves pressing and substantial Canadian objectives: protecting the public against crime through its investigation, bringing fugitives to justice for the proper determination of their criminal liability, and ensuring – through international cooperation – that national boundaries do not serve as a means of escape from the rule of law: M.M. v. USA, 2015 SCC 62, para 15.

[13] There are three stages to the extradition process in Canada:

1. the Authority to Proceed,
2. the extradition hearing and committal, and
3. the surrender phase.

i. The Authority to Proceed

[14] After receiving an extradition request from an extradition partner, the Minister must determine, pursuant to s. 15(1) of the Act, whether to issue an Authority to Proceed. This authorizes the Attorney General to seek, on behalf of the extradition partner, an order of committal respecting the person sought to be extradited and commences the extradition process in Canada.

ii. The Role of the Extradition Judge

[15] Upon receipt of the Authority to Proceed from the Attorney General, a judge holds an extradition hearing pursuant to s. 24(1) of the Act. The limited statutory role of the extradition judge is to assess the evidence to determine whether there is admissible evidence of conduct that, had it occurred in Canada, would justify committal for trial for the alleged offence and confirm that the person sought is the person before the court. If both are answered in the affirmative, the extradition judge is to commit the person sought to await surrender.

[16] Where a requesting state has certified a record of the case, there is a presumption of reliability. Unless rebutted, this presumption of reliability will stand: USA v. Ferras, 2006 SCC 33, paras 52, 66.

[17] Extradition is meant to be an expeditious process by which Canada surrenders persons sought to its partner nations in prompt compliance with its international obligations. The hearing is not a trial, nor should it be allowed to become a trial, as though it were a domestic criminal proceeding: Schreiber, at para. 57.

[18] The committal hearing involves a similar test as a preliminary inquiry. The extradition judge will generally order the committal of the fugitive if there is admissible evidence upon which a reasonable jury, properly instructed, could convict the person sought. There must be sufficient evidence to establish a case that could go to trial in Canada. The extradition judge’s role is not to determine guilt or innocence or to engage in the ultimate assessment of reliability. The extradition judge is permitted, however, to remove evidence from judicial consideration if they are satisfied that the evidence is so manifestly unreliable or defective that it should be disregarded and given no weight: Ferras, paras 40, 46, 48, 54, 59.

[19] Evidence may be rendered so defective or so unreliable as to warrant the court disregarding it due to problems inherent in the evidence itself, problems that undermine the credibility or reliability of the source of the evidence, or a combination of the two factors. However, it is only where concerns regarding the reliability of the evidence are sufficiently powerful to justify the complete rejection of the evidence that these concerns become relevant to the determination of whether committal is justified: USA v. Anderson, 2007 ONCA 84, para 30.

[20] Stated another way, it is only where the evidence supporting committal is "so defective”, “appears so unreliable", or is "manifestly unreliable", such that it would be "dangerous or unsafe" to act on it, that the extradition judge is justified in refusing committal on this basis: M.M. at paras 63, 72. Such a basis for refusing committal attaches a high threshold.

[21] It is not the function of the extradition judge to consider the means by which the foreign officials may have prepared the evidence for the extradition hearing. Nor is it the judge's function to weigh the ultimate issue as to the effect of any delay on the trial in the jurisdiction of the extradition partner. In addition, it is not open to the extradition judge to consider the application of any defences that might be raised at trial by the person sought: Argentina v. Mellino, paras 28-38; USA v. Lépine, paras 10, 20. The ultimate guilt or innocence of the person sought for extradition is not an issue for the extradition court: M.M., at paras 62, 83.

[22] Section 7 of the Canadian Charter of Rights and Freedoms is engaged at the committal stage, as the extradition judge must ensure that any committal order is the product of a fair judicial process: USA v. Cobb, 2001 SCC 19, para 34.

[23] If the extradition judge orders committal, the person sought has a right of appeal against this decision to the Court of Appeal.

iii. The Role of the Minister Once Committal is Ordered

[24] If the judge orders the committal at the conclusion of the extradition hearing, the next step of the process permits the Minister to order the surrender of the person sought to the extradition partner. This next step in the extradition process is political in nature: Kwok, para 32.

[25] Under the provisions of the Act, there are a number of considerations that the Minister is obliged to assess. Pursuant to s. 43(1), the person committed may make submissions to the Minister on any ground that would be relevant to the decision as to whether to order surrender.

[26] There are two statutorily enumerated considerations for the Minister to take into account, which applicants can address in submissions. Pursuant to s. 44(1)(a) of the Act, the Minister shall refuse to make a surrender order if satisfied that the surrender would be unjust or oppressive, having regard to all the relevant circumstances. Under s. 47(a) of the Act, the Minister may refuse to make a surrender order if satisfied that the person sought to be extradited would be entitled, if that person were tried in Canada, to be discharged under the laws of Canada because of a previous acquittal or conviction.

[27] In deciding whether or not to order surrender, the Minister must consider whether surrender would violate the person's rights guaranteed by s. 7 of the Charter. The applicable test is whether ordering surrender would "shock the conscience of Canadians" or whether extradition would place the person in an "unacceptable" situation. In making this assessment, the Minister must consider and balance all relevant factors, such as Canada’s international treaty obligations as well as the need to respect the fugitive’s constitutional rights: Cobb, para 34; USA v. Burns, 2001 SCC 7, paras 63-69; and Kindler v. Canada (Minister of Justice).

[28] Many appellate court decisions have stressed the important division of responsibility in relation to potential issues under the Charter. The power is statutorily vested in the executive to order the surrender of the person sought. It is the Minister who is obliged to consider potential surrender against arguments that such would amount to an abuse of process, place the fugitive in double jeopardy, or otherwise violate the guarantees in the Charter: Mellino, para 37; Kwok, paras 35-37; USA v. Logan, 2015 NBCA 60, para 31, leave to appeal refused.

B. Has the Applicant Established Threshold Authenticity of the Bank of Singapore Letter?

[29] When the parties initially made submissions on the disclosure application, the court raised concerns regarding the authenticity of the Bank of Singapore letter. I released an endorsement directing counsel to take certain steps to demonstrate that the letter was genuine.

[30] Before any document can be admitted into evidence, it must be authenticated through testimony of a witness: R. v. Schwartz, p. 476.

[31] At common law, authentication requires the introduction of some evidence that the item is what it purports to be. The requirement is not onerous and may be established by either, or both, direct and circumstantial evidence: R. v. C.B., 2019 ONCA 380, para 66.

[32] The Applicant filed two supplementary records providing updates on their efforts to verify the authenticity of the Bank of Singapore letter. These records included correspondence with the Bank of Singapore and a supporting affidavit from the Applicant. Password-protected correspondence from the Bank of Singapore to the Applicant confirmed the following:

i. the original letter from November of 2022 was written, prepared, and sent by a representative of the Bank of Singapore;
ii. the term “remittance” used in the original letter refers to electronic transfers of funds, including wire transfers; and
iii. bank account 1000304211-1 was the only bank account held by Baumann with the Bank of Singapore.

[33] Although the Applicant’s counsel sent a follow-up letter, not every question was answered and the Bank of Singapore declined to respond directly to counsel.

[34] In summation, the Applicant has attempted to address the court’s concerns regarding the authenticity of the letter, filed in support of the original disclosure motion. His own affidavit sets out the background and context to the letter. The Crown did not seek to cross-examine him on this affidavit. The Applicant has also filed the November 13, 2024, letter from the Bank of Singapore. I am satisfied that these materials provide a sufficient evidentiary foundation of threshold authenticity. The ultimate use of the letter is a question of weight.

C. Has the Applicant Satisfied the Test for Disclosure Based on Manifest Unreliability?

i. Disclosure in Extradition Proceedings

[35] The approach to disclosure in extradition proceedings is fundamentally different to that of domestic Canadian criminal law. A person sought for extradition is ordinarily not entitled to disclosure from the requesting state beyond the evidence that it is relying on to establish its prima facie case under s. 29(1)(a) of the Act. The principles regarding disclosure from R. v. Stinchcombe do not apply. The extradition judge may only order the production of materials relevant to issues properly raised at the committal stage, subject to their discretion to expand the scope of the hearing to allow the parties to establish a factual basis for a subsequent Charter challenge: Kwok, paras 99-100.

[36] In this case, the evidence to establish the prima facie case is contained in the certified ROCs. The U.S. has provided its “certification” or “good word” that the evidence is available and sufficient under American law to justify the Applicant’s prosecution. That certification raises a presumption that the evidence in the ROCs is reliable and available for trial: Ferras, paras 30, 52, 58, 77.

[37] Disclosure beyond the ROC will only occur in rare cases. The extradition process is intended to provide a simple and expeditious means of responding to Canada’s international obligations: Larosa v. USA, para 74.

[38] In the case of Larosa, the Ontario Court of Appeal held that an extradition judge has jurisdiction to order the Attorney General to produce documents when certain preconditions are met. Before ordering the production of documents beyond the ROC, an applicant must satisfy the following criteria:

i. the allegations must be capable of supporting the remedy sought;
ii. there must be an air of reality to the allegations; and
iii. it must be likely that the documents sought would be relevant to the allegations.

Larosa, at para. 76.

[39] The air of reality requirement from Larosa applies in cases where the person sought alleges that the evidence contained in the ROC is so manifestly unreliable that it would be unsafe to rest a verdict upon it: USA v. Norbu, 2020 ONSC 5389, paras 29, 31; USA v. Orphanou, 2010 ONSC 1701, paras 20-23; USA v. Rosenau, 2010 BCCA 461, paras 55-64; USA v. Guevara-Mendoza, 2018 BCCA 55, para 39; USA v. Gunn, 2007 MBCA 21, paras 33-44; USA v. Scoppa, 2024 QCCS 3068, paras 32-38. As such, whether an air of reality has been established must be assessed in light of the high threshold for a finding of manifest unreliability: M.M., paras 63, 72.

[40] For something to have an air of reality, it cannot be an irresponsible allegation made solely for the purpose of initiating a "fishing expedition" in the hope that something of value will accrue to the defence: Larosa, para 79.

ii. The Disclosure Application

[41] The original disclosure application relied on a letter addressed to the Applicant from the Bank of Singapore dated November 3, 2022. This letter appears to suggest that no money was transferred into the Baumann Account in 2016. The letter appears to show that, since the account was opened in 2011, only one remittance was ever made into that account in June 2017, which does not correspond to the illicit funds.

[42] The Applicant is not able to obtain copies of 2016 account statements from the Bank of Singapore, as the Bank has not preserved those records. The Bank of Singapore has advised that the earliest available monthly statement is from January 2017.

[43] The Applicant concedes that this court does not have jurisdiction to order the American authorities to produce the documents. In his original disclosure application, the Applicant asked the court to direct the Attorney General to request, from the U.S. authorities, copies of the relevant banking records, electronic communications pertaining to the Baumann Account, and electronic communications pertaining to the purchase of the San Francisco property. If the order was made and the U.S. did not produce the documents requested, the Applicant requested that the court draw an adverse inference.

[44] The Attorney General initially denied this request, in part because the authenticity of the Bank of Singapore letter provided by the Applicant had not been verified. The court shared similar concerns and released the endorsement requesting that counsel follow up with the Bank of Singapore regarding the letter. The Applicant’s counsel made inquiries of the Bank of Singapore in an attempt to verify the authenticity of the letter; and filed further documents.

[45] After receiving the additional documentation, the Attorney General requested an adjournment and stated that they had made inquiries to the central authorities in the U.S. who, in turn, made further inquiries to the U.S. prosecutors. The Attorney General subsequently filed a second supplemental ROC (the “SSROC”), which includes eight out of the thirty-six pages of the Baumann Account statements showing the transactions at issue during the months of August, September, and October 2016. The relevant transactions are as follows:

i. August 23, 2016, Outward SWIFT payment of $960,045, which resulted in an account balance of -725,442.99;
ii. August 30, 2016, Inward SWIFT payment of $499,965;
iii. September 1, 2016, Inward SWIFT payment of $500,000; and
iv. October 18, 2016, reversal of the two payments noted at ii. and iii. above.

[46] After receiving the SSROC, the Applicant filed an amended disclosure application that narrowed the relief sought to the remaining pages from the banking records that had not been provided. The Applicant submits that there are significant omissions from the Baumann Account records for August, September, and October 2016. Page 10 of the SSROC contains a “table of contents” outlining the banking information included in each portfolio summary statement. This includes details about the account’s portfolio distribution, currency distribution, current balance, investment holdings, and monthly transactions. The records disclosed only show a selected portion of the Baumann Account’s monthly transactions.

iii. Application of the Test to this Case

[47] The Applicant submits that the Bank of Singapore letter raises an air of reality to the allegation that the ROC is manifestly unreliable; and that production of a complete copy of the Baumann Account portfolio summary statement records for the months of August, September, and October 2016, is necessary to demonstrate that the sufficiency and admissibility of the evidence contained in the original ROC is “wholly unreliable”.

[48] The Applicant argues that the funds used to purchase the San Francisco apartment were unrelated to any alleged bribe money. The two wire transfers totaling approximately $1 million USD in alleged bribe money were deposited into the Baumann Account one week after the $960,045.00 was transferred out of the Baumann Account to purchase the San Francisco property. Counsel submits that there is an air of reality that the requested records would enable the Applicant to challenge the presumptive reliability of the ROC.

[49] I do not accept this submission, as it conflates the reliability of the ROC with the sufficiency of the evidence. Extradition judges have a circumscribed function, which is to determine whether there is a prima facie case of a Canadian crime, and not to become embroiled in questions about possible defences or the likelihood of conviction: R. v. Mann, 2024 ONCA 785, para 24, citing M.M., para 38.

[50] Generally speaking, evidence that establishes a basis for competing inferences of guilt or innocence is inadmissible at the committal hearing as it cannot rebut the presumed reliability of a record of the case or show that inferences relied on by the requesting state are unreasonable. The fact that evidence can support inferences consistent with the innocence of the person sought is not relevant to the test for committal: M.M., para 83.

[51] The Applicant must first establish an evidentiary foundation to demonstrate that there is a real risk that relying on the presumption of reliability of the ROC would lead to a committal on the basis of manifestly unreliable evidence; and that the disclosure sought is likely to rebut that presumption of reliability: In the Matter of Hulley, 2007 BCSC 240, para 24. Stated another way and clarifying para. 78 of Larosa, as cited by the Applicant in support of their disclosure position, “the air of reality test requires that there be an evidentiary foundation demonstrating a “realistic possibility” that the alleged Charter breach can be substantiated by disclosure”: USA v. Viscomi, 2019 ONCA 490, para 92 [Emphasis added].

[52] The fact that disclosure is necessary to meet the air of reality test is not a basis for ordering disclosure: Earles v. USA, 2003 BCCA 20, paras 36-37; USA v. Elofer, 2023 ONSC 2474, paras 68-69; USA v. Gill, 2015 ONSC 2577, para 29; USA v. Cao, para 38.

[53] It is not enough that the disclosure may point to, or bolster the case for, a finding of manifest unreliability. An application for disclosure must establish that the disclosure itself will establish manifest unreliability. If not, the application will fail the air of reality test and will be dismissed: Norbu, para 29.

[54] What the Applicant seeks is an opportunity to discover whether there might be evidence that could conceivably undermine the strength of the prosecutor’s case for laundering proceeds of crime. However, it is not enough that the information sought might exist or might assist in demonstrating that the evidence in the ROC is unreliable. The Applicant falls short of establishing what is necessary to justify disclosure in the extradition context and his application for further disclosure fails: Norbu, para 31.

[55] I find that the Applicant has not satisfied the test for disclosure, for the following reasons:

i. The documents contained in the SSROC are consistent with the original ROC with respect to the key transactions that the Attorney General relies on to argue for committal, and they reinforce the reliability of the original ROC. There is no air of reality to the claim that the evidence in the ROCs is manifestly unreliable.
ii. At its highest, the additional pages from the August 2016 bank statement may demonstrate that there were other sources of funds used to purchase the property. The manifest unreliability of the evidence as described in Ferras is not the same thing as the sufficiency of the evidence.

[56] The Applicant has not demonstrated an air of reality to the allegation that there is a real risk that relying on the presumption of reliability would lead to a committal based on manifestly unreliable evidence, nor has he established that the disclosure sought is likely to rebut that presumption.

IV. CONCLUSION

[57] For all of these reasons, the application for disclosure is dismissed.

Braid, J.
Released: March 24, 2025