United States of America v. Adams

United States of America v. Adams Collection Decisions of the Court of Appeal Date 1999-05-17 Docket numbers C28494, C29501 Judges Carthy, James Joseph; Labrosse, Jean-Marc; Feldman, Kathryn N. Subject Criminal Decision Content DATE: 19990517 DOCKET: C28494 and C29501 COURT OF APPEAL FOR ONTARIO RE: THE UNITED STATES OF AMERICA and THE MINISTER OF JUSTICE (Respondents) v. RICHARD ARMAND ADAM (Appellant) BEFORE: CARTHY, LABROSSE and FELDMAN JJ.A. COUNSEL: Richard Armand Adam, the appellant, in person Iona Jaffe, for the respondent HEARD: April 29 and 30, 1999 On appeal from the committal order issued by Mr. Justice L.R. Morin on October 21, 1997 BY THE COURT: [1] The appellant is facing criminal charges in the United States for fraud-related offences. The United States, pursuant to the Extradition Act, R.S.C. 1985, c. E-23 (“the Act”) sought his extradition on those charges. On October 21, 1997, L. R. Morin J. (“the extradition judge”) issued a warrant of committal and directed that the appellant be detained pending the decision of the Minister of Justice with respect to the surrender of the appellant to the requesting state. On March 20, 1998, the Minister of Justice ordered the surrender of the appellant on all charges. [2] The appellant appeals the committal order. He also seeks judicial review of the Minister’s surrender order. [3] Two of the grounds of appeal are that the extradition judge failed to allow the appellant to give evidence at the hearing and relied on hearsay evidence in reaching his decision. [4] At the hearing, the extradition judge refused to allow the appellant to call evidence. On reviewing the transcript and the reasons for judgment, it appears that the extradition judge was under the mistaken impression that the law prevented him from hearing from the appellant. In reaching this conclusion, the extradition judge noted that if he permitted the appellant to be called as a witness this could only lead to an expectation that the evidence be weighed, which is not the proper function of an extradition judge. [5] The purpose of an extradition hearing is to determine whether there is sufficient evidence to warrant sending the fugitive to the requesting state so that he may stand trial. Under s. 18(1)(b) of the Extradition Act, the role of an extradition judge is to determine whether the evidence produced establishes a prima facie case that would justify the committal of the fugitive for trial, if the crime had been committed in Canada. One should not rush to the conclusion that evidence from the fugitive could not bear upon that issue. [6] Section 13 of the Act provides that an extradition hearing is to be conducted “as if the fugitive was brought before a justice of the peace, charged with an indictable offence committed in Canada.” A fugitive in an extradition hearing is afforded the same protections that he would otherwise be entitled to at a preliminary inquiry for a charge to be tried in a Canadian court. See R. v. Schmidt, [1987] 1 S.C.R. 500. Under s. 541 of the Criminal Code, an accused at a preliminary inquiry has the right to call witnesses. As an extradition hearing is in the nature of a preliminary inquiry, it follows that the fugitive should also have an opportunity to call witnesses. [7] The right to give evidence at an extradition hearing was clearly enunciated by this court in United States of America v. Smith (1984), 44 O.R. (2d) 705; leave to appeal to S.C.C. refused 4 O.A.C. 239. There, Houlden J.A., for the court, held that the fugitive at an extradition hearing can call witnesses. In receiving this evidence, an extradition judge is not required to weigh the testimony or to assess the credibility of the witnesses. Indeed, that is not the role of an extradition judge. Rather, 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. [8] Nothing in Philippines (Republic) v. Pacificador (1993), 14 O.R. (3d) 321(C.A.) detracts from what was said in Smith. Pacificador dealt with whether the Act required the extradition judge to hear evidence to create a record for another proceeding. In holding that there was nothing in the Act which required an extradition judge to hear such evidence, Doherty J.A. stated twice that his comments did not apply to evidence relevant to whether a prima facie case for extradition has been established. In fact, Doherty J.A. found that s. 13 of the Act requires that the statutory procedure established for the conduct of preliminary inquiries should be followed “as nearly as may be” in the conduct of extradition hearings. As already noted, that statutory procedure includes the right to call witnesses. [9] An extradition hearing must be conducted in accordance with the principles of fundamental justice. See United States of America v. Dynar, [1997] 2 S.C.R. 462. As such, the appellant was entitled to a fair hearing before the extradition judge. In our view, the refusal of the extradition judge to permit the appellant to call evidence was contrary to the principles of fundamental justice. [10] Accordingly, the extradition judge erred in refusing to allow the appellant to give evidence. [11] The appellant did not tell this court or the extradition judge what his evidence might be. We are only dealing with the right to speak. If his evidence, as delivered, is contrary to the principles applicable to a preliminary hearing then rulings and exclusionary orders may be made. We cannot conclude that anything he might say will only serve to contradict and thus invite a credibility issue. It may be that his evidence could complement other evidence and lead to a conclusion that there is no prima facie case for extradition. In any event, our reasoning is not based upon the facts of this case. It is directed by the simple principle that the appellant should have been permitted to give evidence -- relevance and admissibility rulings to follow. [12] As to the admissibility of hearsay evidence, the cases speak clearly to the effect that, if admitted, it should be ignored in reaching a conclusion on extradition. See United States of America v. Shaw (1984), 28 Man. R. (2d) 88 (Q.B.). That being said, we see no clear indication that the extradition judge relied on hearsay evidence in reaching his decision, and that is not a ground for our decision. [13] Having found a fundamental error in the proceeding below, we have no choice but to set aside the warrant of committal and direct a new hearing. [14] We did not hear argument on the judicial review appeal from the Minister’s surrender order. That appeal will be stayed as moot in light of our determination of the appeal from the decision of the extradition judge. [15] We heard argument as to the effect of the superseding indictment that was only recently drafted as a result of proceedings in the United States. That issue is left for consideration at the new hearing. [16] Accordingly, the appeal from the extradition judge is allowed, the decision is set aside and a new hearing is ordered.