The extradition Act (Re)

2001BCSC0980 Citation: Re: The Extradition Act AND U.S.A. and Earles Date: 20010705 2001 BCSC 980 Docket: CC001558 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Ruling The Honourable Mr. Justice Melvin July 5, 2001 IN THE MATTER OF THE EXTRADITION ACT AND IN THE MATTER OF UNITED STATES OF AMERICA v. WALLE WINSTER EARLES Counsel for the Requesting State C. Greenwood Counsel for the Accused G. DelBigio [1] THE COURT: I will be going through some of the material that counsel discussed yesterday and some of the authorities. I will not be reviewing them all, nor will I be reviewing the full extent of all counsel's arguments. I have had a chance to reflect on them, of course, while submissions were made and since. [2] At this stage of the extradition proceedings, counsel for Mr. Earles, the person sought, seeks an order that one individual, if not eventually more, deponents of affidavits be cross-examined. The proposed examination may relate to matters of criminal record, immunity, arrangements, plea-bargaining, sentencing of persons who have by their separate affidavits implicated Mr. Earles in the offence upon which extradition is sought. Specifically, counsel for Mr. Earles wishes to cross-examine a Mr. Robert T. Raley (phonetic), who is an assistant U.S. attorney apparently cognisant of the circumstances surrounding the investigation in the United States in the State of Oklahoma. [3] Mr. Raley deposes that Mr. Earles and others were indicted with the offence of what I will call in our language cultivating marihuana. He also deposes that Mr. Rose (phonetic), who was indicted, testified for the prosecution, having cooperated with the authorities, and that another accused, Mr. Stewart (phonetic), agreed to cooperate with the authorities as well. These individuals have by their affidavit materials directly implicated, if their evidence is accepted, Mr. Earles in the offence, which has been described by me as cultivating marihuana. [4] Counsel for Mr. Earles submits that such cross-examination surrounding the manner of the U.S. authorities collecting evidence is necessary in terms of a s. 7 Charter violation relating to the principles of fundamental justice. It should be noted that no direct violation to Mr. Earles' s. 7 Charter rights is submitted. His rights, it is argued, may be affected by the means used in the United States of America to obtain evidence and/or witnesses to testify against Mr. Earles. [5] Although the initial reaction to this submission is that a plea bargain arrangement, immunity, favourable sentences and the like affect weight and not admissibility, counsel for Mr. Earles urges that if the evidence is collected in a manner that is contrary to the principles of fundamental justice the use of that evidence on an extradition hearing violates this accused's, Mr. Earles', s. 7 Charter rights. The issue then goes beyond mere weight and becomes one of admissibility of the evidence at this hearing. [6] Secondly, counsel submits that this evidence, which may be elicited by cross-examination through this gathering process, may be of assistance to the minister when considering the second stage of extradition if these proceedings reach that stage. [7] I should start from the proposition that the use of affidavit material, properly authenticated in terms of the treaty and statute, is acceptable in support of the requesting state's application and it is admitted and authorized by Article 10(2) of the treaty and s. 32(1)(b) of the Extradition Act. I do not propose to reproduce them. [8] The issue of cross-examination on affidavits was directly in issue in the United States v. Smith, a decision touched on by counsel in submissions. Smith is a decision of the Court of Appeal of Ontario, 1984. In the context of Charter development, it is, even 17 years ago, of some antiquity. Nevertheless, it is important. I read from portions that counsel have touched on, at 552, dealing with the procedure at an extradition hearing: Thus, the procedure at an extradition hearing is governed, not only by the provisions of the Criminal Code relating to preliminary hearings, but also by the s. 16 of the Act and art. 10(2) of the treaty; and both s. 16 and art. 10(2) permit the admission of documentary evidence without cross-examination. Section 16 is now s. 32. Further, at p. 554: Finally, when regard is had to the nature of extradition proceedings, I do not believe that a refusal of cross-examination is contrary to the principles of fundamental justice. The importance of cross-examination varies with the nature of the proceedings. And he refers to a number of authorities. Continuing: The purpose of an extradition hearing is not to determine the guilt or innocence of the fugitive. It is merely an inquiry to determine whether there is sufficient evidence to warrant sending the fugitive to the demand State so that he may stand trial. The extradition judge is not required to weigh the evidence or to decide the credibility of witnesses; his duty is to determine if the evidence would justify the committal of the fugitive for trial if the alleged crime had been committed in Canada. The fugitive can call witnesses if he so desires. He is given an opportunity to point out weaknesses or deficiencies in the evidence of the demanding State and to present argument as to why he should not be extradited, but there is no final determination of his rights. The trial and the full determination of the fugitive's rights will take place in the courts of the demanding country. It is a basic assumption of extradition proceedings that the fugitive will receive a fair and just trial in the demanding State. [9] Now, having said that in terms of the Ontario Court of Appeal in 1984, as I take the position of counsel for Mr. Earles, the submission is that the position of the court or the decision of the court in Smith has been overtaken to a degree by subsequent decisions of the Supreme Court of Canada. [10] In Kwok v. United States of America, the Supreme Court of Canada concluded that Charter considerations may be applicable at extradition hearings, but in a very limited manner. The court was concerned in that context with s. 6, and I am going to read a portion of Kwok. Kwok was a decision of a judgment rendered in April of this year, April 5, 2001, Supreme Court of Canada, and reading the bottom of 253, para. 54, referring to s. 9(3): Section 9(3) clearly confers Charter jurisdiction upon the extradition judge insofar as the issues are specific to the functions of the extradition hearing, and to the extent that the Charter remedies could have previously been granted by the habeas corpus judge. This is consistent with this Court's decision in Dynar, which confirmed that the limited role of the extradition judge had not been substantially modified by the 1992 amendments. The added jurisdiction conferred upon the extradition judge must be understood in light of this governing principle. Through s. 9(3), the extradition judge acquired the jurisdiction formerly reserved to the habeas corpus judge, and nothing else. I will come back to Kwok later with reference to the second issue, the second basis for cross-examination. [11] In Cobb, another decision of the Supreme Court of Canada of the same date, April 5, 2001. Cobb, Kwok and one other were issued on the same day by that court. The court also referred to Charter jurisdiction referring to Kwok, and said basically the same thing reading from p. 281, paras. 22 and 23, "The function extends," that is, Charter jurisdiction, "to the determination where the foreign country has put forward sufficient admissible evidence to make out a prima facie case." And then the court reinforced its position in Kwok by stating: I also concluded in Kwok that the extradition judge does possess some Charter jurisdiction, so long as the Charter issues relate to the initial phase of the extradition process. And further: This Court has confirmed in Schmidt and Burns that the Charter applies to extradition proceedings in the sense that the treaty, the extradition hearing in Canada and the exercise of the executive discretion to surrender the fugitive all have to conform to the requirements of the Charter. The committal judge presides over a judicial hearing and he or she must ensure that the hearing itself is conducted in accordance with the principles of fundamental justice. Finally, at para. 26: The extradition judge is therefore competent to grant Charter remedies, including a stay of proceedings, on the basis of a Charter violation but only insofar as the Charter breach pertains directly to the circumscribed issues relevant at the committal stage of the execution process. [12] Another authority which I propose to refer to is Shulman, the third of the decisions of the same date, April 5, 2001, of the Supreme Court of Canada, and again the court concluded that the Charter is available at this stage of the extradition process, and I am reading from para. 56 as it is somewhat of an expansion of what has been previously referred to: An extradition judge has the power to exclude evidence under s. 24(2) of the Charter as a remedy for a violation of a fugitive's constitutional rights. The Charter applies only domestically and has no effect extraterritorially, except to Canadian authorities. Within this passage, which is emphasized, as I take it, by counsel for Mr. Earles: However, in an appropriate case, the extradition judge could exclude evidence gathered by the foreign authorities in such an abusive manner that its admission per se would be unfair under s. 7 of the Charter. And the authority for that proposition he refers to his previous decision in Dynar. [13] Consequently, when one looks at the change in language used by the Supreme Court of Canada, it is submitted that a Charter remedy may be available to persons who are sought within extradition proceedings if the evidence gathering process or the evidence gathering procedures by the foreign authorities were conducted in such an abusive manner that its admission would be unfair under s. 7 of the Charter. In Dynar, the court touched on this a little further, and I want to refer to Dynar again. Dynar was a decision, as I mentioned earlier, of the Supreme Court of Canada (1997). I am reading para. 123: There is no doubt that the Charter applies to extradition proceedings. Yet s. 32 of the Charter provides that it is applicable only to Canadian state actors. Pursuant to principles of international comity as well, the Charter generally cannot apply extraterritorially. And then he went on and discussed s. 7 of the Charter, and the court stated: It is obvious that the liberty and security of the person of the fugitive are at stake in an extradition proceeding. The proceedings must therefore be conducted in accordance with the principles of fundamental justice. And then, finally, the last paragraph I want to refer to in Dynar, para. 126: Mr. Dynar has not argued that the situation he will face in the United States is in any way oppressive or unacceptable. Indeed, before such an argument could succeed the fugitive would have to demonstrate ... Now, I emphasize that: ... the fugitive would have to demonstrate that he will be subjected to egregious conduct that would "shock the conscience" or that would be "simply unacceptable." [14] In the case at bar, one then looks at the evidence as to what has been presented, and what has been presented is affidavit material which would demonstrate that two, three, perhaps even four individuals who testify or depose that they have personal knowledge of Mr. Earles' activities, which directly relate to the true bill that was returned in Oklahoma. They did so because they entered into arrangements with the prosecution, arrangements for perhaps reduced charges, perhaps reduced sentence, perhaps no charges at all, granting of prosecutorial immunity in that sense. There is some evidence of that in Mr. Raley's affidavit and defence counsel wishes to have the opportunity to cross-examine that person to examine the circumstances under which those "plea bargain" arrangements were entered into to determine whether or not there is some basis upon which one could conclude that the s. 7 rights of Mr. Earles have been violated. [15] Merely entering into plea bargain arrangements, granting of immunity, agreeing to joint submissions on lesser sentences, or for lesser offences perhaps, does not in the ordinary scheme of things amount to egregious conduct that would shock the conscience or that would be simply unacceptable. Everyone that is remotely associated with the administration of criminal justice recognizes that that is a fact of life within the operation of the criminal courts, not only in the United States, but also in Canada as well as in Great Britain. There is nothing unique about this process. [16] In the case at bar, is there evidence of conduct that could be described as egregious, or of a nature to shock the conscience, or be simply unacceptable in the language used by the court in Dynar? And, as I said a moment ago, the use of affidavits by persons who are or have been subject to prosecution and who have decided to cooperate with authorities is matter of weight. It is not, in my view, a matter of admissibility. [17] In Shulman, an argument similar to that in the case at bar, was considered. I am going to refer again to Shulman in this respect. In para. 55, the court referred to the second argument of the appellant: Second, the appellant argued before the extradition judge that the use of the affidavit material of alleged co-conspirators, who had pleaded guilty in the United States but had not been sentenced at the time of swearing the affidavits, violated his rights under s. 7 of the Charter. He submitted that using such evidence was an invitation to perjury by the alleged co-conspirators, who could tailor their evidence in favour of the prosecution to seek a lesser sentence. He argued that this material should have been excluded from the extradition proceedings under s. 24(2) of the Charter. And the respondent, it is the United States, argued that there was no basis for excluding such evidence. The court referred to a decision of Mr. Justice McIntyre in Williams, cited by approval by Mr. Justice Ritchie in the Supreme Court, United States v. Shephard, and I am looking at the last sentence of the passage as reproduced at para. 58: The effect of the Canadian decisions is to indicate that while such a step [the use of these individuals' evidence] may affect the weight of the evidence offered in this fashion it does not get to the question of admissibility. And, finally, para. 59: The fact that the affiants were awaiting sentence at the time of their evidence goes to weight, not admissibility. Weighing the evidence or assessing credibility is not part of the extradition judge's jurisdiction, as this court established in Shephard, and it is not to that judge to assume responsibility over the actions of foreign officials in preparing evidence or to assume that foreign courts will not give the fugitive a fair trial or cannot properly weigh evidence. The conclusion of the Supreme Court of Canada was that the extradition judge and the Court of Appeal were correct in refusing to exclude this evidence. [18] In my opinion, that reasoning is compelling, that whatever discretion does vest in the extradition judge at this stage, if you apply Charter principles, going to the fairness of the hearing may extend to the exclusion of evidence which is obtained in an abusive matter, as touched on in Dynar, but there is no evidence of such occurring in the case at bar. [19] This hearing and the cross-examination of affidavits relating to the subject under consideration goes to the matter of weight to be attached to the evidence submitted, and cross-examination of the affidavits in that respect, in my view, is of no utility in this hearing. The weight to be attached to the evidence and circumstances surrounding the manner in which the evidence was obtained, unless it falls in the class of evidence touched on in Dynar, is evidence for the tribunal of fact to consider. This court should not embark upon a process of allowing cross-examination merely on the suggestion that something might be obtained, which might be of assistance, which might arguably be a basis for a s. 7 challenge. The evidentiary burden, in my respectful view, is on the fugitive to establish a foundation for the exercise of a limited discretion touched on by the Supreme Court of Canada. No such evidentiary burden has been met in the case at bar. [20] As to the second branch of argument that the material, which could be of assistance to the Minister at the second stage if these proceedings gets to that stage, a short answer is that it is open to the person sought to introduce whatever evidence or material he or she thinks fit at the ministerial stage. The discretion referred to in the authorities, which indicate that it may be convenient to introduce such evidence at an extradition hearing, although not relevant to the decision of the extradition judge, in my view, should be exercised very, very sparingly. I will only make a quick reference; I will not quote the Kwok decision of the Supreme Court of Canada that in relation to the indication that the exercise of discretion is a sparing one at best. Consequently, the applications on behalf of the person sought to order cross-examination on affidavits is dismissed. "F.A. Melvin, J." The Honourable Mr. Justice F.A. Melvin