United States of America v. Earles

2001BCSC1851 Citation: Re: Extradition Act AND U.S.A. and Earles Date: 20010705 2001 BCSC 1851 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: The hearing now concluded, the issue is whether or not the United States of America should receive the committal order it seeks regarding the extradition of Mr. Earles to stand trial on the charges which are comparable to the cultivation or conspiracy to cultivate marihuana in Canada. In support of the application, authenticated documents were tendered as exhibits. The evidence in support of the application is in the form of affidavits. This affidavit material was subject to extensive challenge on behalf of Mr. Earles. [2] The forms of challenge seem to be in approximately five areas: first, hearsay in the classic sense where the deponent is reporting what others have told to him in the course of interviews or otherwise; second is what I will call "source identification deficiency." It will now become a classic line, since I just made it up, which raises issues of personal knowledge versus information received. In other words, the source of the information is either personal or from third parties; third is the information or record check issue, for example, motor vehicle searches, computer searches, utility record search - examples of that are found in Mr. Dule's second affidavit at para. 22 - without identifying the individual conducting the search, or the mechanism, or the authenticity of the record or the record keeping; fourth, conclusory statements; and, fifth, the description of documents rather than the documents themselves as evidence when the documents apparently exist and there would appear to be no difficulty in reproducing them as exhibits. [3] The classic hearsay objections are valid, in my opinion, and those portions of the affidavit material which are subject to that criticism are to be ignored, and those criticisms relate mainly to statements found in what I will call "police" or "authority" affidavits, as distinguished from the individuals. I do not propose to go through each affidavit and identify each paragraph or sentence as objectionable. I think counsel identified those portions quite clearly in their submissions, and I think it is fair for me to say that counsel for the United States agrees that portions are referred to, which are classic hearsay, are not to be considered as evidence in support of the application today. [4] What I described as "source identification deficiency," the record checking procedures, conclusory statements and description of documents, in my opinion, are to be viewed somewhat differently. The extradition judge is not to weigh evidence or assess its reliability. The admissibility of evidence on this hearing is based on Canadian law, and I agree with counsel for the United States that there is a distinction between objectionable hearsay in the classic sense leading to exclusion of evidence and defects in evidence which may have an impact on weight. [5] As is stated earlier, this hearing is not a trial, but an inquiry to determine if the evidence tendered establishes a prima facie case that an extradition offence has been committed; Mellino was a classic authority for that proposition. United States v. Shephard sets out the standard of the burden, that is, the same as that of a preliminary inquiry. What is required to commit in any case is admissible evidence that could, if believed, result in a conviction. [6] Bearing those principles in mind, I will address the evidentiary issues. First, as to computers or evidentiary record checks, as the case may be, a witness, in my opinion, is entitled to testify to what has been displayed on the computer or the record screen and to report what the witness has seen as a result of activating the mechanism which records the record; R. v. West in our Court of Appeal is authority for that proposition. [7] As to source identification deficiency, in other words, we do not know whether the individual was deposing from personal knowledge, or from what he has heard from third parties, or what documents he or she may have looked at, the evidence in and of itself and on its face is admissible. The issue then becomes one of weight to be attached to that evidence. Conclusory statements, in my view, are in the same category; they go to weight to be attached to the statements, not whether they are admissible. [8] There is a challenge as to the admissibility of statements made in the police officer's affidavit as relating to description of documents, for example, the memo with Mr. Rose's (phonetic) name on it and perhaps Mr. Rose's telephone number on a memo, and the objection was that these items should be produced as exhibits to the affidavits in order that the court can conclude or interpret what the documents were and what they actually say, and, of course, then be able to determine the relevance. [9] I do not agree in this limited sense. In my opinion, a witness may describe what he saw -- what he seized. A witness may describe a document, for example, a contract, as being a number of pages with certain names on the front page, for example, William Smith and George Brown. What the witness cannot do, on the assumption that the document exists, is interpret the document. In the case at bar, the description of the document, a memo with a name on it, in my view, does not offend the interpretation aspect of the ruling which I have just made and as a result the evidence is admissible. [10] Rejecting that classic hearsay statement, which I mentioned, mainly found in authorities' affidavits, police affidavits, or interviews I reported, what evidence is left upon which this court should consider? There is the Stewart (phonetic) affidavits, John Giddon's (phonetic) affidavit, Mark Giddon's affidavit, the Rose affidavit, Snook (phonetic) affidavit, White (phonetic) affidavit, Mr. Well's affidavit concerning seizures, Schroeder's (phonetic) affidavit, the analyst, and Officer Dunlap's (phonetic) affidavit. I considered that evidence as it is admissible, in my view, and relevant to the issues which are to be considered at this hearing. [11] Exhibit 1 is the authority to proceed and it describes Canadian offences which correspond, for example, Count 1, the conspiracy to produce, conspiracy to cultivate. "Conspiracy," as counsel have indicated, is an agreement of two or more to perform an illegal act which can be established by direct evidence of the agreement, which is in many instances unlikely, or circumstantial evidence, or a combination of both. The cumulative effect of the direct or circumstantial evidence may lead to the compelling inference of the existence of the essential agreement, which is the foundation of conspiracy. [12] So far as the second count, production, that is, cultivation of marihuana, the evidence of the affidavits that I refer to, Stewart, the two Giddons, Rose, all establish that there has been cultivation, all establish a participation by Mr. Earles, all of which leads to the conclusion, in my view, considering the evidence cumulatively, that there is overwhelming evidence to justify the committal of Mr. Earles in relation to the offences set forth in the authority to proceed. The order for committal will follow. "F.A. Melvin, J." The Honourable Mr. Justice F.A. Melvin