United States of America v. Fordham

2003BCSC0696 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: United States of America v. Fordham, 2003 BCSC 696 Date: 20030502 Docket: 21027 Registry: Vancouver Between: The United States of America Requesting State And: Brent William Fordham a.k.a. Brian Bond Person Sought Before: The Honourable Mr. Justice Macaulay Ruling Counsel for the Requesting State: M. Williams Counsel for the Person Sought: D. Gaffar Dates and Place of Hearing: March 26 and 27, 2003 Vancouver, B.C. Introduction [1] Pursuant to an Authority to Proceed under s. 15 of the Extradition Act, S.C. 1999, c. 18, the Attorney General of Canada sought an order for the committal of Brent William Fordham whom the United States of America wants to prosecute for four alleged telemarketing offences. The four offences corresponded to acts of fraud in Canada contrary to s. 380 of our Criminal Code. In each instance, the Authority to Proceed identified the alleged victim of the telemarketing scheme. The names of the victims are Davis, Brown, Winters and Devine. [2] At the conclusion of the hearing, I ordered the committal of Fordham into custody to await extradition on the Davis offence as set out in the Authority to Proceed, but not on the other offences as there was no evidence that Fordham was still involved in the telemarketing scheme by the time those individuals were victimized. [3] During the course of the proceedings, I dismissed an objection by Fordham to the admissibility of certain paragraphs in the record of the case and, later, also ruled against Fordham on a Charter argument based on the inclusion of the impugned paragraphs. [4] In particular, counsel for Fordham objected to the admissibility of all references in the record of the case to the evidence of other victims of the telemarketing fraud scheme. The record included what might broadly be called similar act evidence from these individuals, set out at paragraphs 7 to 10 inclusive. According to counsel for Fordham, this evidence was irrelevant, inadmissible and introduced for the improper purpose of increasing the penalty faced by Fordham in the event of conviction in the United States. While counsel for the requesting state did not concede that the impugned evidence was of similar acts, I have assumed, without expressly deciding, that it is. [5] I stated that I would provide reasons in due course. These are my reasons. Admissibility of the Record of the Case [6] The Extradition Act sets out the very broad rules of evidence applicable to extradition hearings. Sections 32 and 33 govern the admissibility of the record of the case. The relevant portions of the sections read: 32.(1) Subject to subsection (2), evidence that would otherwise be admissible under Canadian law shall be admitted as evidence at an extradition hearing. The following shall also be admitted as evidence, even if it would not otherwise be admissible under Canadian law: (a) the contents of the documents contained in the record of the case certified under subsection 33(3); (b) the contents of the documents that are submitted in conformity with the terms of an extradition agreement; ... (2) Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted. 33.(1) The record of the case must include (a) in the case of a person sought for the purpose of prosecution, a document summarizing the evidence available to the extradition partner for use in the prosecution; ... (3) A record of the case may not be admitted unless (a) in the case of a person sought for the purpose of prosecution, a judicial or prosecuting authority of the extradition partner certifies that the evidence summarized or contained in the record of the case is available for trial and (i) is sufficient under the law of the extradition partner to justify prosecution, or (ii) was gathered according to the law of the extradition partner; ... [7] These sections are broad enough to render admissible evidence gathered outside of Canada that might not be admissible if it had been gathered inside Canada. Here, I am concerned only with evidence gathered in the United States of America. [8] Ordinarily, similar act evidence is inadmissible in Canada unless the party seeking to tender it persuades the court that it fits within an exception. See R. v. Handy (2002), 164 C.C.C. (3d) 481 (S.C.C.). I accept that, if it were necessary, I would not be able to judicially determine the admissibility of the impugned evidence based on the limited information in the record of the case. I conclude that it is not necessary that I do so. [9] Evidence gathered outside Canada and included in the record of the case is admissible on an extradition hearing even if it would not otherwise be admissible. In light of the clear wording of section 32(1), my inability to determine the admissibility of evidence gathered outside Canada does not render the evidence inadmissible. [10] Counsel for Fordham relied on United State of America v. Mahoney (2002), 164 C.C.C. (3d) 76 (Ont. S.C.J.) as a template for judicial consideration of evidence impugned at an extradition hearing. In Mahoney, the requesting state's evidence included hearsay statements of alleged co‑conspirators. Such evidence is only admissible in Canada as an exception to the hearsay rule upon two findings: first, a finding beyond a reasonable doubt that a conspiracy existed and second, a finding on a balance of probabilities that the accused was a member of the conspiracy. As a superior court judge conducting an extradition hearing is in the same position as a provincial court judge conducting a preliminary inquiry, in that no finding of proof of the offence beyond a reasonable doubt is required, the court in Mahoney concluded that it could not determine the admissibility of the impugned evidence and ignored it for the purpose of determining committal. [11] In my opinion, Mahoney does not assist Fordham in the case at hand. In Mahoney, the court recognized that the constitutional validity of s. 33 had been upheld by the Ontario Court of Appeal in United States of America v. Yang (2001), 157 C.C.C. (3d) 225, notwithstanding that the record of the case under consideration there consisted entirely of second- or third-hand hearsay that would probably not be admissible in a Canadian trial. [12] As pointed out by the judge in Mahoney, the court in Yang specifically rejected the suggestion that fundamental justice mandated any requirement of reliability in extradition hearings. Although reliability is, along with necessity, a fundamental underpinning for the admissibility of hearsay evidence in Canadian trials, the issue must be left for the judiciary of the extradition partner to grapple with. [13] Notwithstanding those references, the judge in Mahoney declined to apply Yang and, instead, followed United States of America v. Drysdale, [2000] O.J. No. 214 (S.C.J.). In that case, however, the court was concerned with the admissibility of evidence gathered before the coming into force of the current Extradition Act with its expanded rules for admissibility. Counsel for the requesting state in Drysdale sought no benefit from the expanded rules and, accordingly, I respectfully disagree with the decision of the judge in Mahoney to rely on Drysdale in determining the question of admissibility. [14] I also note that in Mahoney, the court never expressly disallowed the impugned evidence, although that may have been implicit in the reasons, but simply considered it superfluous to the determination of whether a prima facie case existed. I came to a similar conclusion in the case before me. The references in the record of the case to similar acts were entirely superfluous and, ultimately, I did not rely on them in determining whether the requesting state had established a basis for committal. Section 7 of the Charter and Abuse of Process [15] Following my refusal to find the evidence inadmissible, counsel contended that Fordham's rights under s. 7 of the Charter had been breached and that the proceedings were an abuse of process at common law. As a remedy, counsel sought a judicial stay or, alternatively, an order excluding the impugned paragraphs of the record of the case. [16] This argument stemmed from the apparent increase in sentence available upon conviction in the United States where the evidence discloses victims over the age of 55. In the result, it appears that a conviction on a single extraditable offence may trigger a greater sentence based on the additional alleged victims notwithstanding the decision not to seek extradition relating to the offences involving those victims. [17] I do not accept that the foregoing impacts in any way on the fairness of the extradition hearing before me and, accordingly, neither s. 7 nor the common law doctrine of abuse of process is engaged. In my view these issues are, instead, to be raised by Fordham, if he so chooses, with the minister who must now decide whether to extradite. [18] In arriving at my conclusion, I considered and applied the reasoning in the trilogy of Supreme Court of Canada cases: U.S.A. v. Kwok (2001), 152 C.C.C. (3d) 225 (S.C.C.); U.S.A. v. Cobb (2001), 152 C.C.C. (3d) 270 (S.C.C.); and U.S.A. v. Shulman (2001), 152 C.C.C. (3d) 294 (S.C.C.). I also found U.S.A. v. J.H.K. (2002), 165 C.C.C. (3d) 449 (Ont. C.A.), leave to appeal refused [2002] S.C.C.A. No. 501, of assistance in interpreting the reasons in Cobb, which I refer to in detail below. [19] The court in Cobb set the parameters for the court's jurisdiction pursuant to the Charter and at common law to stay extradition proceedings. There is no question as to the court's power to direct a stay where the abuse is related to the conduct of the hearing itself. This is evident from the facts giving rise to the abuse of process in Cobb, which were very different from the present case. [20] In Cobb, the United States sought the extradition of Canadian citizens on charges of fraud and conspiracy to commit fraud. Attempts were made to intimidate the fugitives. [21] Before the extradition hearing took place, the assigned trial judge in the United States, while sentencing a co‑accused, stated that if the fugitives did not cooperate and come to the United States voluntarily, he would impose the absolute maximum jail sentence that the law permitted. In addition, the American prosecutor appeared on Canadian television and threatened that those fugitives who contested their extradition would serve longer sentences under much more stringent conditions and "be the boyfriend of a very bad man." The extradition judge stayed the proceedings. The Court of Appeal set aside the stay but the Supreme Court restored it. [22] It is important to keep in mind that the reason these concerns were to be addressed at the judicial rather than ministerial phase of the extradition process was that only the judge could address the unfairness that would have tainted any committal order granted in the circumstances. At paragraphs 44 and 45, the court said this: [44] These concerns, and the remedies to which they give rise, properly belong to the judicial phase of the extradition process as they are not dependent on the ultimate outcome of either the committal or the surrender decision. Nothing the Minister could have done would address the unfairness which would taint a committal order obtained under the present circumstances. The Minister is not the guardian of the integrity of the courts. It is for the courts themselves to guard and preserve their integrity. This is therefore not a case that must await the executive decision. The violations of the appellants' rights occurred at the judicial stage of the process and call for redress at that stage and in that forum. [45] Under the Extradition Act, the Requesting State must come before the courts in Canada to show that it has a case against the fugitive that entitles it to proceed to request a surrender order from the Minister. That judicial phase is mandatory unless the fugitive consents to being committed. In the course of that process, the Requesting State is governed by the rules of fundamental justice that prevail when liberty interests are at stake, and by the doctrine of abuse of process that governs the conduct of all litigants before Canadian courts. [23] The court went on to find that the conduct was that of a litigant before a Canadian court and thus capable of triggering both Charter scrutiny and the doctrine of abuse of process. The impugned conduct was the placing of undue pressure on Canadian citizens to forego due legal process in Canada and thus bore directly upon the very proceedings before the extradition judge. [24] The companion cases highlight the importance of separating the functions of an extradition judge from those of the minister. In Kwok, the court addressed the distinction in the following passages: [44] The overall statutory framework does not reveal any intent to alter the respective tasks of the judiciary and the executive. The function of the committal judge is not expanded by the 1992 amendments beyond the acquisition of the powers of the habeas corpus judge. That function remains the determination of whether a prima facie case has been made out. As the habeas corpus judge formerly could, the extradition judge can now grant appropriate Charter remedies on matters relevant to the committal stage, provided that he or she does not usurp the Minister's function. ... [54] In my view, the 1992 amendments did not confer unlimited Charter jurisdiction on the extradition judge and therefore do not render obsolete all previous extradition case law. 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, supra, 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. ... [85] This Court's decision in Dynar, which held that the pre-amendment cases on the limited role of the judiciary in extradition proceedings are still applicable, is dispositive of the appeal against committal. I find that s. 9(3) empowers the extradition judge to grant remedies for Charter violations, including, where appropriate, a stay of proceedings, but only insofar as the Charter breaches pertain directly to the circumscribed issues relevant at the committal stage of the extradition process. Extradition judges should not pre-empt the executive with respect to those issues which fall under the Minister's responsibility under the Act. In this light, while the surrender-related ss. 6 and 12 issues must be first determined by the Minister, allegations of violations of other Charter rights are properly dealt with by the extradition judge, for example when the Charter infringements are related to the fair process of the extradition hearing itself. [86] This Court's decision in Cobb, supra, released concurrently, illustrates the extradition court's competence to grant the Charter remedy deemed just and appropriate in circumstances where the fairness of the extradition hearing itself is compromised through the actions of the Requesting State. [25] Returning to the case at bar, the content of the record of the case will not determine what transpires in the United States in the event Fordham is extradited and eventually convicted. The record simply confirms that the additional evidence is available to the prosecuting attorney in the United States. Whether a less fair trial will be conducted or a more severe penalty attach in the event of conviction does not itself impact on the fairness of the extradition hearing. Returning to Cobb as an illustration, the court addressed the significance of this distinction, at para. 33: [33] The respondent argues that any concern that the appellants may face unfair proceedings in the United States is a matter for the Minister, not for the extradition judge, whose sole function is to assess the sufficiency of the evidence. True as this may be, it misses the real issue here. The issue at this stage is not whether the appellants will have a fair trial if extradited, but whether they are having a fair extradition hearing in light of the threats and inducements imposed upon them, by those involved in requesting their extradition, to force them to abandon their right to such a hearing. The focus of the fairness issue is thus the hearing in Canada, to which the Charter applies, and not the eventual trial in the U.S., which it may be premature to consider pending the Minister's decision on surrender. Conduct by the Requesting State, or by its representatives, agents or officials, which interferes or attempts to interfere with the conduct of judicial proceedings in Canada is a matter that directly concerns the extradition judge. [26] In my view, it is entirely within the province of the minister to consider issues relating to the severity of punishment at the time of making the surrender decision. See Cobb at para. 42 and J.H.K. at para. 33. I further observe that it is not open to me, as an extradition judge, to assume that the United States will not give Fordham a fair trial. See Shulman at para. 59. [27] I dismiss the applications for relief pursuant to the Charter and for a stay of proceedings at common law. "M.D. Macaulay, J." The Honourable Mr. Justice M.D. Macaulay