United States v. Ellingson

2023 BCSC 1596 United States v. Ellingson

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: United States v. Ellingson, 2023 BCSC 1596 Date: 20230908 Docket: 27433 Registry: Vancouver 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 Requesting State And Roger Ellingson Person Sought Restriction on publication pursuant to s. 26 of the Extradition Act, S.C. 1999, c. 18 Before: The Honourable Justice Marzari Reasons for Judgment Counsel for the Attorney General of Canada on behalf of the Requesting State: R. A. Enoch Counsel for Person Sought: C.A. Armitage I. Donaldson, K.C. Place and Date of Hearing: Vancouver, B.C. May 30-31, 2023 Place and Date of Result Given: Vancouver, B.C. September 8, 2023 Place and Date of Judgment: Vancouver, B.C. September 8, 2023 Table of Contents INTRODUCTION.. 3 THE COMMITTAL APPLICATION.. 4 THE TEST FOR COMMITTAL.. 6 THE ELEMENTS OF CONSPIRACY TO TRAFFIC.. 8 SUFFICIENCY, RELIABILITY AND ADMISSIBILITY OF EVIDENCE.. 9 Reliability. 10 Circumstantial Evidence. 14 Admissibility of Evidence. 16 Hearsay Evidence. 17 SUMMARY OF THE ROC.. 23 The Alleged Conspiracy. 24 Mr. Ellingson's Alleged Involvement in the Conspiracy. 26 PARTY POSITIONS ON SUFFICIENCY OF EVIDENCE TO COMMIT.. 29 DETERMINATION.. 32 CONCLUSION.. 36

INTRODUCTION [1] The Attorney General of Canada on behalf of the United States of America (the "Requesting State") seeks an order committing Roger Ellingson to await surrender to the United States of America for the purposes of prosecution pursuant to s. 29(1)(a) of the Extradition Act, S.C. 1999, c. 18 [Act]. [2] Mr. Ellingson is alleged to be a member of a conspiracy to traffic large quantities of cocaine and marijuana between Canada and the United States using small private planes. The Attorney General says that the Record of the Case (the "ROC") prepared by the Requesting State is sufficient to show that Mr. Ellingson furthered that conspiracy by: a) recruiting pilots to traffic marijuana and cocaine; b) arranging meetings to coordinate the efforts of the conspiracy; c) arranging for encrypted communications for the smuggling group to avoid legal detection of the group; and d) paying legal costs of members of the smuggling group. [3] The Attorney General argues that the evidence indicates that the conspiracy to traffic in marijuana and cocaine predated the evidence collected by the Requesting State in 2007, and that the evidence in the ROC with respect to Mr. Ellingson is evidence of that pre-existing agreement, as opposed to evidence of the formation of the conspiracy itself. [4] The Attorney General concedes that the evidence of Mr. Ellingson's membership in the

conspiracy is circumstantial (as is often the case for the offence of conspiracy). The Attorney General says that Mr. Ellingson's membership in the drug trafficking conspiracy is a reasonable inference arising from the anticipated evidence summarized in the ROC, and that Mr. Ellingson should therefore be committed to await surrender to the Requesting State pursuant to the Act. [5] While Mr. Ellingson generally accepts the legal principles applicable to the Act set forth by the Attorney General, he differs significantly from the Attorney General with respect to the application of those legal principles in this case, and what can be made of the ROC as it relates to him. He challenges the reliability of portions of the ROC, and also the inferences the Attorney General argues may be drawn from the language of the ROC. [6] Read strictly, he says that the ROC contains statements that are manifestly unreliable on their face, and ultimately are not capable of supporting an inference that he agreed to traffic in controlled substances at all. [7] Mr. Ellingson advances no issues with respect to double criminality, and formally admits that he is the person sought by the Requesting State for the conduct referenced in the ROC, and that he is the person depicted in the photograph appended to the ROC. [8] In sum, Mr. Ellingson argues that the Requesting State has not met its burden with

respect to the essential elements of the offence of conspiracy with sufficiently reliable evidence. In the alternative, he argues that even if the court concludes that there is a prima facie case that Mr. Ellingson conspired to traffic marijuana (a substance previously listed in Schedule II of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA]), there is no evidence that he conspired to traffic cocaine.

THE COMMITTAL APPLICATION [9] The Minister of Justice through their representative issued an Authority to Proceed (the "ATP") on February 2, 2018 pursuant to s. 15 of the Act. The ATP provides this Court with the jurisdiction to hear the Attorney General of Canada's application for Mr. Ellingson's committal under s. 29(1) of the Act. [10] The ATP indicates that Mr. Ellingson is sought by the Requesting State for prosecution in relation to conduct equivalent to the Canadian offence of conspiracy to traffic controlled substances listed in Schedule I and Schedule II of the CDSA, contrary to s. 5(1) of the CDSA, and contrary to s. 465(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46. [11] The ATP was executed on February 2, 2018. Since that time, cannabis has been removed from Schedule II of the CDSA and Mr. Ellingson raised, but did not press, the argument that the ATP therefore does not meet the test for double criminality. He concedes that trafficking in large amounts of marijuana across the United States/Canada border as alleged in the ATP remains unlawful in Canada despite the changes to the CDSA. [12] In any event, s. 29(4) of the Act provides that the relevant date for the double criminality inquiry in s. 29(1) is the date of the ATP: see e.g., USA v. Foran, 2016 BCSC 713 at paras. 39-40; The Federal Republic of Germany v. Ebke, 2001 NWTSC 52 at para. 151, aff'd 2003 NWTCA

1. In light of that provision, together with ss. 9-11 of the Cannabis Act, S.C. 2018, c. 16 which continue to make it unlawful to sell, distribute, import or export large amounts of cannabis as alleged in the ROC, I find that the ATP meets the double criminality requirement in s. 29 of the Act. [13] The Attorney General of Canada on behalf of the Requesting State now seeks orders of committal pursuant to s. 29(1)(a) of the Act and relies on the following evidence: a) The ROC certified by the Assistant United States Attorney, Western District of Washington, on October 30, 2017; b) The Supplemental Record of the Case certified by the Assistant United States Attorney, Western District of Washington, on November 12, 2019 (the "SROC"); and c) Admissions signed by Mr. Ellingson dated January 17, 2023 relating to identification.

THE TEST FOR COMMITTAL [14] The Act is founded upon the principle of comity. The principle of comity prohibits second-guessing the requesting state's decision to proceed with prosecution in the first place: Canada (Justice) v. Fischbacher, 2009 SCC 46 at paras. 51-52. Comity requires the extradition judge to recognize that the extradition hearing is not a trial, and must not become one; the business of finding facts is left to the courts in the requesting state: M.M. v. United States of America, 2015 SCC 62 at paras. 2, 38, 64. [15] The role of an extradition judge on committal is not to determine guilt or innocence, make findings based on evidence, or assess reliability. Instead, my role is more limited. The judge's role in the committal phase is described in M.M. as follows: [22] This phase plays an important, although carefully circumscribed, role in protecting the rights of the person sought. That role is defined by s. 29(1)(a) and (3) of the Extradition Act. The extradition judge is to determine two things: (1) whether "there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed"; and (2) "that the person [before the court] is the person sought by the extradition partner" (s. 29(1)(a)). Committal is ordered if the judge finds that these conditions

exist; if not, the person must be discharged: s. 29(1)(a) and (3). This means that the requesting state must show that it has evidence available for trial that would justify committal for trial in Canada for the Canadian offences specified in the ATP. [16] Section 29 of the Act governs the assessment of the sufficiency of the requesting state's evidence adduced to secure committal of the person sought. It reads, in part: 29 (1) A judge shall order the committal of the person into custody to await surrender if (a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner; [17] In determining whether a requesting state's evidence is sufficient to "justify committal", the test is a modified version of that which is applied on a preliminary inquiry: whether, considering the evidence as a whole, there is admissible evidence that, if believed, would justify committal for trial in Canada: United States of America v. Ferras, 2006 SCC 33 at para. 48; M.M. at paras. 22, 37. This requires "at least some evidence on every element of the parallel Canadian crime": Ferras at para. 38. [18] This stage of the process does not engage

the weakness or strength of the evidence. The question is whether a jury (properly instructed) could convict, not whether a jury would convict: United States of America v. Hislop, 2009 BCCA 94 at para. 31. [19] My role at this stage of the extradition process is therefore to determine: a) Is Mr. Ellingson, before me in court, the person sought by the Requesting State; and b) Is there admissible evidence of conduct contained in the ROC and SROC that would justify Mr. Ellingson's committal for trial in Canada on the offence of conspiracy to traffic controlled substances? [20] The first issue is not a live one in this proceeding. Mr. Ellingson has formally admitted that he is the person sought. He has also admitted he is the person shown in the photo attached to the ROC, and therefore the person who has been identified as Mr. Ellingson in the ROC by the unnamed cooperating witness (the "CW"), the undercover officer, and the two pilots, Messrs. Hazen and Rock. [21] The second issue requires a consideration of the sufficiency of the evidence as it relates to the elements of conspiracy, which in turn engages issues including the admissibility and reliability of evidence in the ROC, and the use of circumstantial evidence. I will deal first with the elements of the alleged offence, and then with the evidence.

THE ELEMENTS OF CONSPIRACY TO TRAFFIC [22] To commit Mr. Ellingson for surrender to the Requesting State for the purposes of prosecution, this Court must be satisfied that the evidence summarized in the ROC and other materials discloses a prima facie case on which a jury could convict Mr. Ellingson for the Canadian offence of conspiracy to traffic controlled substances listed at Schedule I and II of the CDSA at the relevant times. This requires that there be at least some evidence on each of the elements of that Canadian offence. [23] At the core of the offence of conspiracy is the shared intention to do something unlawful and a completed agreement to bring that common design into effect. The offence can be broken down into the following essential elements: 1. an intention to agree; 2. completion of an agreement; and 3. a common design to do an unlawful act or do a lawful act by unlawful means. See United States of America v. Dynar, [1997] 2 S.C.R. 462 at para. 86. [24] A conspiracy is complete when two or more persons (not including police or police informants) agree to commit an indictable offence, regardless of whether all of the conspirators have been identified: Dynar at para. 88. [25] The actus reus of conspiracy to traffic is the fact of the agreement. An agreement may be found where there has been a "meeting of the minds" regarding a common design to do something unlawful, specifically committing an indictable offence. The actus reus of conspiracy to traffic in a controlled substance will therefore be made out where the evidence establishes the existence of an agreement between two or more persons to transport or deliver controlled substances. It is common for this element to be proven by way of circumstantial evidence: R. v. Pabla, 2013 BCSC 913 at para.

59. Actual participation in the trafficking offence is not an essential element of the offence of conspiracy; a person may be found guilty of conspiracy to do an illegal act without having actually committed that act: United States of America v. Trotter, 2013 BCSC 1985 at para. 54, aff'd 2015 BCCA 413, leave to appeal to SCC ref'd 36665 (10 March 2016). [26] As expressed by Justice Dickson (as she then was) in Pabla, "The focus of inquiry as to the mens rea of a conspiracy is on the intention of the alleged conspirators. Although they need not be aware of all details of the conspiracy, they must know the general nature of the criminal scheme and intend to adhere to what has been agreed": Pabla at para.

60. In the context of conspiracy to traffic controlled substances, it is sufficient that the alleged conspirator had some knowledge of the scheme and had the common goal of trafficking in the controlled substances. It is not necessary that all members of a conspiracy play, or intend to play, equal roles in the ultimate commission of the unlawful object: United States v. Lim and Baruca, 2022 BCSC 723 at paras. 113-114. [27] Evidence that a scheme was discussed, but that does not amount to evidence of an agreement, is not sufficient for the crime of conspiracy in Canada: United States of America v. Akrami, 2001 BCSC 781 at paras. 42, 44, 59-63. SUFFICIENCY, RELIABILITY AND ADMISSIBILITY OF EVIDENCE [28] I must determine whether, considering the evidence as a whole, there is any admissible evidence of conduct that, if believed, could result in a conviction for the Canadian offence in the ATP: Ferras at para. 48; M.M. at paras. 22, 37. In Baruca at para. 26 citing Ferras at para. 19, Justice Watchuk went on to describe the sufficiency inquiry as follows: [26] In order to even determine sufficiency, the requesting state's evidence must possess a threshold level of detail. In U.S.A. v. Yang (2001), 56 O.R. (3d) 52 at para. 63 (C.A.), Rosenberg J.A. cautioned: [63] ... While the judicial phase is not a full-fledged trial, neither "is it a mere formality": Shulman at p. 307 C.C.C.

Thus, the judge must be in a position to exercise that function. If the material presented in the record of the case is so bereft of detail, such as the witness' means of knowledge, that the judge cannot determine its sufficiency, the judge will have to discharge the person sought for prosecution. This is not a question of the judge weighing the evidence or passing on its reliability, but of carrying out the function assigned by statute. For example, if the record of the case contained a statement that the police suspected the fugitive committed the offence, without stating the basis for this opinion, and this was the only evidence proffered by the extradition partner as proof that the fugitive committed the offence then, even if this opinion was admissible in the requesting state as proof of the offence, it would not be sufficient to meet the s. 29 test for committal because it would have no probative value. This is a more detailed articulation of "the basic requirements of justice in the extradition context"; that is, that "[a] person cannot be sent from the country on mere demand or surmise": Ferras at para. 19 citing Glucksman v. Henkel, 221 U.S. 508 (1911), at p. 512. [29] Section 29(1) of the Act grants this court a discretion to refuse to extradite on the basis of insufficient evidence where the reliability of the evidence is successfully impeached: Ferras at para.

50. Evidence that is manifestly unreliable, and on which it would therefore be dangerous or unsafe to convict, must be excluded. [30] The sufficiency of the evidence in the ROC will therefore often turn on its reliability. Mr. Ellingson argues that the reliability of the evidence in the ROC is lacking in key aspects. Reliability [31] Section 33(3) of the Act provides that the judicial or prosecuting authority of the requesting state must certify that the summarized evidence is available for trial and is either sufficient under the law of the Requesting State to justify prosecution, or was gathered according to the law of the Requesting State. Certification imbues the summary of the evidence with presumptive reliability and availability. [32] No issue is raised by Mr. Ellingson regarding the availability of the evidence summarized in the ROC or SROC. [33] The prosecuting authority for the Western District of Washington has certified that the evidence in the ROC and SROC is available for trial and is sufficient under the laws of the Requesting State to justify prosecution. Therefore, the summary of the evidence in the ROC benefits from a presumption of reliability, simply by virtue of having been certified: Ferras at para. 52. [34] The person sought may rebut this presumption "either by reference to the requesting party's own material or by calling evidence to demonstrate

fundamental inadequacies or frailties in the material relied on by the requesting state": United States of America v. Anderson, 2007 ONCA 84 at para. 31; see also Ferras at para. 54. [35] Justice Cromwell, for the majority in M.M. at paras. 54-72, canvasses the changes to the extradition judge's role brought about by Ferras and United States of America v. Kwok, 2001 SCC 18. In order to withstand constitutional scrutiny, these cases confirm that the Act must be construed in such a way that it would not permit committal on the basis of manifestly unreliable evidence: Ferras at para.

49. Nevertheless, in M.M., Cromwell J. notes that: [63] there continues to be a high threshold for refusing committal on the basis that the supporting evidence is unreliable. It is only where the evidence supporting committal is "so defective or appears so unreliable" or "manifestly unreliable" that it would be "dangerous or unsafe" to act on it that the extradition judge is justified in refusing committal on this basis: Ferras, at paras. 54 and 40. [36] The inquiry into reliability is only concerned with threshold reliability, as opposed to ultimate reliability: Ferras at paras. 53-54; United States of America v. Dhanda, 2010 BCCA 200 at para.

16. The reason for this is that the extradition process is not a trial, and should not be permitted to become one: M.M. at para.

2. Ultimate reliability is a question for the finder of fact. As stated by Cromwell J.: "There is no power to deny extradition simply because the case appears to the extradition judge to be weak or unlikely to succeed at trial": M.M. at para. 71. [37] Unreliability may result from "problems inherent in the evidence itself, problems that undermine the credibility or reliability of the source of the evidence, or a combination of those two factors": M.M. at para. 71. [38] Mr. Ellingson raises numerous issues with the reliability of statements made in the ROC to support the facts that the Attorney General says can be drawn from them. Mr. Ellingson argues that the extradition judge is obliged to review the record of the case with care, to ensure that the minimum constitutionally acceptable level of scrutiny of the Requesting State's evidence is carried out. This review by the extradition judge is not about protecting trial fairness in the Requesting State, but instead whether the evidence is manifestly unreliable, and not properly capable of supporting the conclusion sought. In this regard, Mr. Ellingson argues that the ROC should be read strictly, rather than generously, to the Requesting State. While there is a presumption of reliability because the Requesting State has certified the ROC, that presumption cannot go beyond the four corners of the certified ROC itself. The ROC is

drafted by the Requesting State and they control what is stated there, and also what is left unstated. Where there are ambiguities in the ROC, Mr. Ellingson argues that it would be inappropriate to fill in those ambiguities with speculation or supposition. [39] I agree with Mr. Ellingson that the ROC ought to be read with care, without reading in evidence that is not present there. Some of the assumptions that the Attorney General asks me to draw about the anticipated evidence are not supported on the language of the ROC. [40] One such example comes from a portion of the expected evidence of Larry Hazen, a pilot who has been indicted on the conspiracy at issue and entered a guilty plea. A portion of his expected evidence is summarized at paragraph 39 of the ROC as follows: 39. On July 13, 2007, Hazen traveled on a commercial flight to Canada to meet with Grunwald and ELLINGSON. At the meeting, Grunwald told Hazen that they (the smuggling organization) had 700 pounds of marijuana, the load that was removed from the Cessna that crashed on July 6, 2007, that needed to be flown to the United States. In an effort to convince Hazen to fly it, Grunwald offered him a guaranteed CA $100,000, if he should be arrested in connection with the flight. [41] The Attorney General says that it can be reasonably inferred from this summary that if Mr. Hazen was flying to meet with Messrs. Grunwald

and Ellingson, then it can reasonably be inferred that the statements and offers made by Mr. Grunwald to Mr. Hazen were in the presence of Mr. Ellingson, who must also have been at "the meeting." Mr. Ellingson says that if that was the case, it was open to the Requesting State to include that information in the ROC, and they did not. [42] I agree with Mr. Ellingson that paragraph 39 of the ROC, as phrased, is not reliable evidence that Mr. Ellingson was present with Mr. Grunwald and Mr. Hazen when Mr. Grunwald told Mr. Hazen about the 700 pounds of marijuana, or when Mr. Grunwald offered Mr. Hazen guaranteed money to fly that marijuana to the United States if he was arrested. [43] I also note that, although the ROC defines the "conspirators" collectively as six individuals including Mr. Ellingson, and then makes reference to the actions of the defined "conspirators," the ROC cannot be read to be referring to all 6 individuals (including Mr. Ellingson) every time it references the "conspirators." It is manifestly clear from the ROC as a whole that the use of the term "conspirators" frequently refers to one or more of these individuals, not all of them, and therefore not necessarily to Mr. Ellingson. [44] A subtler, but equally problematic, ambiguity in the ROC can be found at paragraph 11 of the ROC, where it states that: 11. Cooperating Witness (CW) is expected to testify to

the following: he is a private airplane pilot who met with a group of Canadian smugglers, including ELLINGSON, beginning in January 2006. [45] On the wording of this paragraph, and the following more detailed summary of the CW's evidence in the ROC, I am not satisfied that the ROC can be read to mean that the CW was meeting with Ellingson beginning in 2006. The more detailed portions of the CW's anticipated evidence indicate that his first contact with Mr. Ellingson was more likely in August 2007. [46] Finally, paragraph 30(i) of the ROC engages a concern with respect to admissibility and reliability. That paragraph summarizes part of the anticipated evidence of John Rock, a pilot who has plead guilty to his participation in the same conspiracy Mr. Ellingson is alleged to be involved in, and provides: 30(i) While in Hemet, Guerra brought them a suitcase which Colling and Guerra said contained US $1.2 million. Rock, Hazen, Colling and Brown flew to Houston, British Columbia, with this suitcase and the US $880,000, where they were met by Grunwald and ELLINGSON. Rock could testify that ELLINGSON knew that the cash was proceeds from the sale of illegal drugs/ marijuana in the United States. [47] This paragraph raises a number of issues, including the admissibility of co-conspirator hearsay evidence, that I will address below. I address here the underlined portion of this summary of

evidence, that Rock "could testify that Ellingson knew that the cash was proceeds from the sale of the illegal drugs/marijuana in the United States." No foundation for this statement about Mr. Ellingson's knowledge is provided: it is a conclusory statement without foundation. I am unable to infer from the material in the ROC that such a foundation is available, and I find this statement to be manifestly unreliable evidence as to the state of Mr. Ellingson's knowledge of the source of this cash. [48] In my summary of the evidence available for the committal hearing detailed below, I have excluded aspects of the ROC summaries of the evidence that I consider are manifestly unreliable. I have not made assumptions that would fill in foundational factual information that is not provided for in the ROC. [49] Despite my concerns with portions of the ROC, I have not found (nor is it alleged) that the ROC demonstrates a sustained pattern of carelessness or misrepresentation that undermines its contents as a whole. As a result, I cannot conclude that the presumption of reliability of the ROC, arising from its certification, has been rebutted. Circumstantial Evidence [50] In this case, the Attorney General accepts that much of the anticipated evidence summarized in the ROC is circumstantial in relation to Mr. Ellingson's participation in the alleged conspiracy. The Attorney General also

concedes that the Requesting State's case requires certain inferences to be drawn from that evidence to make out the elements of conspiracy. [51] It is uncontested, and the law is well-established, that where direct evidence is lacking on any element of the offence charged, a reasonable jury, properly instructed, may infer from circumstantial evidence the facts necessary to prove that element: R. v. Arcuri, 2001 SCC 54 at para.

30. In Arcuri at para. 23, Chief Justice McLachlin explained that the limited weighing of circumstantial evidence in the context of a preliminary inquiry is directed towards whether the evidence is "reasonably capable of supporting the inference that the Crown asks the jury to draw." This same limited weighing of circumstantial evidence to support reasonable inferences has been found to apply equally in the extradition context: M.M. at para. 71; United States of America v. Lorenz, 2007 BCCA 342 at paras. 33-35. [52] A limited weighing of evidence does not permit a judge to draw factual inferences or determine credibility: Arcuri at para.

23. It does not involve a consideration of the inherent reliability of the evidence. It focuses solely on the question of "whether the evidence, if believed, could reasonably support an inference of guilt": Arcuri at para. 23. [Emphasis in original.] The test is not whether the inference sought by the requesting state is the only or most reasonable inference to be drawn, but it must be a reasonable inference: Arcuri at para. 30. [53] Thus, if the circumstantial evidence is reasonably capable of supporting a number of inferences, and if one of those inferences reasonably supports guilt, the person sought must be committed: M.M. at para.

83. The inferences need not be compelling or even easily drawn in order to be reasonable. A reasonable inference does not have to be the most probable inference. As stated by Justice Garson: "An inference is a conclusion that may, not must, be drawn in the circumstances": United States of America v. Cameron, 2014 BCCA 314 at para.

31. The fact that one of the available inferences is also consistent with innocence is not sufficient to refuse committal: Hislop at para. 31. [54] On the other hand, as described by Justice Doherty in United States v. Akinbobola, 2020 ONCA 331 at para. 8: "An extradition judge cannot commit for extradition if the evidence as a whole does not permit the drawing of the inferences necessary to establish a prima face case. The absence of a link in a circumstantial evidentiary chain will mean that a reasonable trier could not convict, and extradition must be refused." A reasonable inference cannot be grounded in speculation: United States of America v. Heatherington, 2019 BCSC 1809 at para. 60; United States v. Viscomi, 2015 ONCA 484 at para. 21. [55] I turn now to issues regarding the admissibility of portions of the ROC evidence. Admissibility of Evidence [56] I start with s. 32 of the Act, which set out the evidence that is admissible at an extradition hearing: 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; and (c) evidence adduced by the person sought for extradition that is relevant to the tests set out in subsection 29(1) if the judge considers it reliable. (2) Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted. [57] Pursuant to this section, only evidence gathered in Canada will be subject to Canadian exclusionary rules of evidence. The phrase "gathered in Canada" refers to "evidence that is collected, assembled, or put together in Canada": Attorney General of Canada v. Ebanks, 2018 ONSC 3857 at para. 14, aff'd 2019 ONCA 390. Ebanks provides a helpful summary of when evidence will be considered to have been gathered in Canada, and concludes that the focus of this analysis is on the location of the recipient, rather than the source of the information. As a result, Canadian rules of evidence do not apply to evidence obtained by a foreign investigator located in the foreign state, even if the source of that information is Canadian, or was in Canada at the time: Ebanks at para. 29. [58] With respect to evidence gathered in Canada, s. 32(2) of the Act mandates substantive, as opposed to formal, compliance with the Canadian rules of evidence: United States of America v. Anekwu, 2009 SCC 41 at para. 30. [59] No issue is raised by Mr. Ellingson with respect to the legality

of the evidence in the ROC gathered in Canada, including the evidence collected by the undercover officer and the CW in Abbotsford, BC in October 2007. The authorizations for that aspect of the investigation are the subject of the SROC. No Charter application or exclusion application has been made with respect to this, or other evidence in the ROC and SROC. I am satisfied that the legality of the Canadian gathered evidence is not at issue in these proceedings. [60] I turn then to hearsay, and the role that it may play in providing the evidentiary foundation for committal under the Act. Hearsay Evidence [61] As is common, the ROC contains hearsay evidence of various individuals, including statements attributed to alleged co-conspirators, which are said to show both the existence of a conspiracy and Mr. Ellingson's involvement in it. [62] The parties requested the opportunity to provide written submissions regarding the proper legal framework to consider the admissibility of co-conspirator hearsay evidence in the extradition context, which I accepted. I note that neither party identified for the Court the statements in the ROC said to engage the co-conspirator hearsay rule, or what aspects of the ROC they sought to include or exclude from consideration on that basis. Nor were any distinctions suggested on the basis of the evidence gathered in Canada. [63] In his submissions, Mr.

Ellingson concedes that hearsay evidence in the ROC is generally admissible in these proceedings, subject to the overriding duty of the extradition judge to assess the evidence in conformity with the test in Ferras. However, Mr. Ellingson objects to my consideration of hearsay evidence of alleged co-conspirators contained in the ROC with respect to his involvement, on the basis that only direct evidence of his involvement is relevant and admissible in the context of a conspiracy charge. [64] The Attorney General on behalf of the Requesting State says that all of the co-conspirator evidence in the ROC is admissible against Mr. Ellingson, on the basis of a modified R. v Carter, [1982] 1 S.C.R. 938, 1982 CanLII 35 analysis. [65] The Carter analysis applies in Canadian criminal conspiracy trials to the admissibility of evidence of an accused's membership in the conspiracy. In United States of America v. Lorenz, 2007 BCCA 342 at para. 51, Justice Newbury explained: The "two-stage" approach to the conspiracy exception was of course confirmed by the Supreme Court of Canada in R. v. Carter, [1982] 1 S.C.R.

938. The Court ruled that the trier of fact must be satisfied beyond a reasonable doubt that a conspiracy existed and that the accused was probably a member of the conspiracy before the trier of fact may consider evidence of the acts and declarations of the co-conspirators in furtherance of the objects of the conspiracy as evidence against the accused on the issue of his guilt." [66] In Lorenz, the British Columbia Court of Appeal considered the application of the Carter principles in the extradition context, but did not expressly hold that Carter applies to co-conspirator hearsay evidence in that context, preferring to address the issue as one of relevance. Lorenz was later discussed in Trotter by this Court, but the Court of Appeal declined to address the hearsay issue and the application of Carter in that case. Courts in Ontario have also opined on whether Carter applies in preliminary inquiries and extradition cases, and on the proper approach to that type of evidence: see R. v. Rojas, [1997] O.J. No. 3756, 41 O.T.C. 208 (S.C.J.); United States of America v. Drysdale, 2000 CanLII 22651, 32 C.R. (5th) 163 (Ont. S.C.J.), Mahoney and Ebke. The Attorney General submits that this case provides an opportunity for the court to clarify the Carter test in the context of extradition proceedings. [67] In their written submissions, the Attorney General and Mr. Ellingson differ on the

applicability of Carter to the extradition context, but agree that there must be some evidence contained in the ROC, upon which a jury properly instructed could find: a) that a conspiracy existed; and b) from evidence directly admissible against Mr. Ellingson (i.e., his own words and actions), that he was a member of the conspiracy. [68] The disagreement between the parties lies in what happens if these two steps are satisfied. [69] The Attorney General says that if satisfied, all of the co-conspirator hearsay becomes admissible pursuant to Carter and the court may consider that evidence in deciding whether to commit the person sought. They say on this basis that all of the evidence in the ROC is admissible. [70] Mr. Ellingson submits that, if the above two steps were met, it would be unnecessary for the court to consider the co-conspirator hearsay, as the sufficiency test would be met, and a committal order would follow. As a result, Mr. Ellingson argues, there is no need to consider the acts or declarations of others in his case. He submits that they are not legally relevant to the test to be applied by this court at this hearing, and should not be considered. He says that once there is "proof of an accused's probable involvement in the conspiracy," as required pursuant to Lorenz, any hearsay on this point would be superfluous. [71] There is no bar, as far as I have been able

to find in the case law, to the court considering all of the evidence (including hearsay and co-conspirator hearsay evidence) in the extradition context on issues other than the participation or membership of the person sought in the alleged conspiracy itself. Furthermore, decisions of our Court of Appeal make it clear that there are several non-hearsay purposes for which the statements and conduct of co-conspirators may be considered under Canadian law, without engaging the co-conspirator exception to the hearsay rule. These non-hearsay purposes would equally apply in the context of an extradition committal hearing. [72] For evidence gathered outside of Canada, there is authority that double, triple or even fifth hand hearsay may be relied upon in the extradition context, provided that it is sufficiently reliable. In Lorenz at para. 57, our Court of Appeal adopted the following statements from United States of America v. Yang, 157 C.C.C. (3d) 225 at 249, 2001 CanLII 20937 (Ont. C.A.) in this regard: On the argument of this appeal, much was made of the disturbing specter of a fugitive being committed for surrender based upon fifth-hand hearsay, non-expert opinion and prejudicial character evidence. For example, in Ebke [Germany v. Ebke, 2001 NWTSC 17], the record of the case from the Federal Republic of Germany is described as containing "hearsay, character evidence,

unqualified opinion evidence, and other forms of evidence that would not ordinarily be admissible in domestic Canadian criminal proceedings" (at para. 13). This is disturbing only when viewed through the lens of the Canadian system and its paradigm of the jury trial. If such evidence is admissible in our extradition partners it is because their experience is that this kind of evidence can be weighed by the judicial official and will be accorded the weight it deserves. It is not for this country to assume that it alone knows how to arrive at a true verdict. [Emphasis added in Lorenz.] [73] Out of this broad acceptance of hearsay generally in extradition cases, the application of the Carter analysis creates an exception for co-conspirator hearsay going to the involvement of the person sought. Ironically, this exception to the presumptive inadmissibility of hearsay in criminal cases becomes an exception to the presumptive admissibility of hearsay in the context of extradition. The applicability of the Carter analysis in extradition committal proceedings remains unsettled on my reading of the case law, including by the BC Court of Appeal: United States of America v. Trotter, 2015 BCCA 413 at paras 36-39. [74] In R v. Tran, 2014 BCCA 343 at paras. 87-123, the Court of Appeal extensively reviewed the application of the Carter test to conspiracy charges in Canada (outside of the extradition context). Justice Frankel, for the Court, points out the "misconception that all acts of alleged co-conspirators fall under the co-conspirator exception to the hearsay rule": Tran at para.

87. In Tran, the Court of Appeal describes a fairly robust non-hearsay role for out-of-court statements by alleged co-conspirators to provide context to the statements of the accused: Tran at paras. 116-119. As in the Court of Appeal decision in R. v. Wang, 2013 BCCA 311 at para. 83, the Tran decision reiterates that in British Columbia at least, unsworn evidence of the statements of an alleged co-conspirator are admissible, without going through the Carter analysis, to provide context for the statements of the accused. [75] Furthermore, in Tran at para. 106, our Court of Appeal adopts the decision of the Ontario Court of Appeal in Regina v. Puddicombe, 2013 ONCA 506, leave to appeal to SCC ref'd 35666 (6 March 2014), including the following at para. 112 of Puddicombe: [112] Evidence offered to prove the existence of the alleged agreement will not often engage the hearsay rule. Generally, at the step one inquiry, testimony of things said and done by alleged conspirators is tendered not for its truth, but as circumstantial evidence of the existence of the agreement. The admissibility of the evidence depends on whether as a matter of logic and human experience an inference of the existence of the agreement is available from the evidence considered in its totality. Admissibility on the question of the existence of the agreement does not depend on whether the evidence consists of

acts and declarations in furtherance of the conspiracy: see David Paciocco & Lee Stuesser, The Law of Evidence, 6th ed. (Toronto, Irwin Law, 2011), at pp. 156-58; R. v. Smith; R. v. James, 2007 NSCA 19, 216 C.C.C. (3d) 490 at paras. 187-91, paras. 235-38. [Emphasis added]. [76] Puddicombe, Tran and R. v. Viandante, 40 C.R. (4th) 353, 1995 CanLII 16408 (Man. C.A.) remind us that the same evidence may be hearsay for one purpose, and direct evidence for another. A declaration of an alleged co-conspirator that he or she is involved in the conspiracy with others is direct evidence of the existence of a conspiracy, but hearsay evidence as to the others' participation in the conspiracy: Viandante at 419. On this view, co-conspirator evidence related to the issue of whether a conspiracy exists, separate and apart from whether the accused was a participant in the conspiracy, is admissible in Canada without the Carter test. [77] In any event, Tran makes it clear that even where there is hearsay evidence on this point in a Canadian conspiracy trial, and recourse is had to the Carter test, that hearsay evidence is admissible to determine if there is, beyond a reasonable doubt, a conspiracy (before moving to the question of whether the accused is a participant in that conspiracy): Tran at paras. 99-107. The existence of the conspiracy is determined on "all of the evidence" and "on a global,

one time, basis" on the standard of beyond a reasonable doubt: Tran at paras. 101-103. In Tran, the Court of Appeal settles the controversial question as to whether or not "all of the evidence" at step one of the Carter analysis includes the hearsay evidence of co-conspirators, and concludes that it does: Tran at para. 102. [78] For the purposes of extradition, I find that the cases and the parties are in general agreement that all that is required is some evidence, upon which a jury could reasonably rely, of the conspiracy or common design, regardless of whether that evidence includes co-conspirator hearsay or not. [79] In addition, in the extradition context, there must be some evidence linking the person sought to membership in the conspiracy or common design. Based on the Court of Appeal's decision in Lorenz, I find that co-conspirator hearsay evidence alone on this point may be insufficient. What is required is some evidence of acts or declarations of the person sought to support their membership in the alleged conspiracy, and not solely the hearsay statements of co-conspirators. [80] The evidentiary burden is therefore no different from the usual burden on the requesting state, but the sufficiency requirement will not be met for a conspiracy charge unless there is some evidence, beyond the conduct and declarations of co-conspirators, to implicate the person sought in the

conspiracy. [81] Both the Attorney General and Mr. Ellingson acknowledge that there need only be some evidence on these points in the extradition context upon which a jury, properly instructed, might find the elements of conspiracy made out. [82] In this case, the vast majority of the evidence of co-conspirator conduct and declarations in the ROC tends to go to the existence of a conspiracy. Only small portions of it relate to Mr. Ellingson's involvement or participation in that conspiracy. [83] Within those portions of the evidence that might be characterized as co-conspirator hearsay in relation to Mr. Ellingson's knowledge and involvement, I find that much of that evidence is nevertheless properly admissible for the purposes of providing context for Mr. Ellingson's own conduct and declarations, without engaging the necessity of considering Carter and the admissibility of co-conspirator hearsay. [84] Ultimately, I have determined that it is unnecessary to resort to the co-conspirator hearsay evidence in the ROC to decide the issue of Mr. Ellingson's participation in the alleged conspiracy. I therefore find that it is unnecessary for me to opine on how or whether Carter applies in this case.

SUMMARY OF THE ROC [85] I have reviewed the ROC with the above considerations in mind. [86] The ROC itself is difficult to follow, as it is organized by witness as opposed to by chronology or subject matter. There may be connections between the witnesses' evidence that is not obvious on first reading. I have only summarized those portions of the ROC that I consider necessary for my determinations. [87] To make my decision more transparent in this regard, I have summarized the ROC below in two parts: the first summarizes the expected evidence of the conspiracy, and the second summarizes the expected evidence of Mr. Ellingson's participation in the alleged conspiracy. I have included what might be considered co-conspirator hearsay in this summary where I consider that it would be admissible in Canada for non-hearsay purposes, including with respect to the existence of a conspiracy or common design, or as context, or both. The Alleged Conspiracy [88] The conduct Mr. Ellingson is alleged to have participated in, with his agreement and knowledge, is a conspiracy to traffic large quantities of cocaine and marijuana between Canada and the United States using small private planes. The alleged conspirators include (in addition to Mr. Ellingson) Leonard Colling, Ronald Grunwald, Robert Ryan Brown, Huy Duy Hoang and Gustavo Guerra. [89] The ROC summarizes anticipated evidence that,

between January 1, 2006 and July 1, 2008, the DEA, with the permission and assistance of the Royal Canadian Mounted Police (RCMP), engaged the CW. In June 2006, the CW introduced Mr. Rock, a pilot and mechanic from Alaska, to Mr. Colling to repair three planes for the purposes of trafficking drugs. [90] According to the CW, during that June 2006 visit, Mr. Colling told Mr. Rock and the CW that they paid pilots CA $250 per pound of marijuana flown south into the United States and CA $1,000 per kilogram of cocaine flown from the United States to Canada. Mr. Colling told Mr. Rock they had 150 kilograms of cocaine in Los Angeles, California waiting to be flown to Canada. [91] Mr. Rock is expected to testify that he decided to fly planes for Mr. Colling and Mr. Grunwald and to assist the operation in a number of ways, including by registering airline businesses, and leasing airplane hangars in Hemet, California and Olympia, Washington under the names of these flight companies. He flew three different planes for the group, including two Cessnas and a Learjet. [92] In September 2006, Mr. Rock and Mr. Colling flew to Western Washington with a smuggled load of marijuana. A week later, Mr. Rock, Mr. Hazen, Mr. Colling and Mr. Brown flew from Western Washington to Houston, British Columbia with a bag containing an unknown amount of US currency. [93] Mr. Rock and Mr. Hazen are expected to

testify to flying significant amounts of currency to California and to Houston, British Columbia at various times in 2006: a) In 2006, Mr. Rock attempted to fly Mr. Colling and a suitcase containing $880,000 from Illinois, to Hemet, California. When the plane developed engine trouble, Mr. Hazen flew a different plane to retrieve Mr. Rock, Mr. Colling and the currency. The three flew to Hemet, California with the US $880,000, where Mr. Rock saw Mr. Colling and others count the money. b) In late 2006, while in Hemet, Mr. Guerra brought Mr. Rock and Mr. Colling a suitcase which Mr. Colling and Mr. Guerra said contained US $1.2 million. Mr. Rock, Mr. Hazen, Mr. Colling and Mr. Brown flew to Houston, British Columbia, with this suitcase and the US $880,000, where they were met by Mr. Grunwald and Mr. Ellingson. [94] In 2006 and 2007, Mr. Hazen took several trips with Mr. Rock, including some to Canada where they met Mr. Colling and Mr. Grunwald, and flew others to Southern California where they met Mr. Guerra. [95] In May 2007, Mr. Hazen flew a plane that smelled strongly of marijuana to Hemet, California. He stayed in Hemet for a few days with Mr. Colling, and then flew approximately 120 kg of cocaine from Hemet, California to Olympia, Washington with Mr. Colling. Mr. Rock and Mr. Hazen then flew the 120 kg of cocaine from Olympia, Washington to Houston, British Columbia, where

they were met by Mr. Colling and Mr. Grunwald, who took possession of the cocaine. [96] In July 2007, Mr. Rock crashed a Cessna on a takeoff attempt in British Columbia with a load of marijuana. Mr. Brown was in the co-pilot seat. Both Mr. Rock and Mr. Brown were injured. Mr. Brown described to the CW paying $50,000 to a rancher to build a private airstrip, but that the airstrip was poorly constructed, causing the crash. He described that he and Mr. Rock were pinned by 700 pounds of marijuana in the plane. Mr. Brown also told the CW that workers at the ranch unloaded the marijuana from the wrecked plane, and Mr. Grunwald offered CA $10,000 to anyone who would drive the marijuana away from the site. [97] In July 2007, Mr. Hazen was told by Mr. Grunwald that they had 700 pounds of marijuana that had been removed from the crashed Cessna that needed to be flown to the United States. Mr. Grunwald offered Mr. Hazen a guaranteed $100,000 should Mr. Hazen be arrested in connection with the flight. [98] Mr. Guerra was a source of cocaine for Mr. Grunwald and Mr. Colling. Mr. Guerra would receive Mr. Grunwald and Mr. Colling's marijuana from two pilots who flew into a small airport in Hemet, California, where they rented a hangar. Mr. Colling told him that he was purchasing several airplanes, including a jet, to use for smuggling and that he wanted to monopolize the marijuana

market. [99] Mr. Guerra estimated that between 2002 and 2006, he purchased between 2,000 and 3,000 pounds of marijuana from Mr. Grunwald and Mr. Colling, and that he supplied Mr. Grunwald and Mr. Colling with 400 to 500 kilograms of cocaine. [100] By 2007, Mr. Guerra owed Mr. Grunwald and Mr. Colling approximately US $250,000 for marijuana he obtained from them, and distributed in the United States, for which he was unable to pay. Mr. Guerra allowed Mr. Colling to use a house at a location in California that Mr. Hazen describes attending with Mr. Colling and Mr. Rock in 2007. [101] Mr. Hazen, Mr. Rock, and Mr. Guerra were all indicted in the United States in relation to this conspiracy, and have entered guilty pleas and are now cooperating with the prosecution. Mr. Ellingson's Alleged Involvement in the Conspiracy [102] In late 2006, Mr. Ellingson was with Mr. Grunwald in Houston, British Columbia and met Mr. Rock, Mr. Hazen, Mr. Colling, and Mr. Brown when they flew from Hemet, California to Houston, BC with a suitcase containing substantial amounts of US currency. [103] Mr. Ellingson attended at the scene of the July 6, 2007 plane crash and drove Mr. Rock and Mr. Brown to the Royal Inland Hospital in Kamloops, British Columbia. [104] On July 13, 2007, Mr. Hazen traveled on a commercial flight to Canada to meet with Mr. Grunwald and Mr. Ellingson. The ROC is ambiguous as to

whether Mr. Ellingson was present at the meeting that then occurred, and so I have omitted the evidence of what occurred at that meeting in my considerations. [105] On August 13, 2007, the CW answered a telephone call from Mr. Ellingson, who said he wanted to meet. Mr. Ellingson had determined a specific question and answer to identify the CW based on information Mr. Hazen had given him, and the CW answered the question to Mr. Ellingson's satisfaction. Mr. Ellingson stated that he could not enter the United States, so the two agreed to meet in Mexico. [106] On August 18, 2007, the CW received another call from Mr. Ellingson, who said he would not be in Mexico, but would send his partner who had "full authority." Mr. Ellingson told the CW that his partner had "scars from the [airplane] wreck." They agreed that the CW would meet Mr. Ellingson's partner in a specified Mexican hotel lobby on the morning of August 20, 2007. [107] On August 20, 2007, in Mexico, the CW approached a man with healing facial injuries in the motel lobby. The man, who was accompanied by two other men, identified himself as Robert Brown, Mr. Ellingson's partner. Mr. Brown told the CW that he and Mr. Ellingson needed to hire a pilot. Mr. Brown said he would pay CA $300 per pound to transport 700 pounds of marijuana from Canada to Los Angeles, California. [108] Mr. Brown also introduced the CW to two other

men with him, who he said would pay $1000/kilogram to transport cocaine from California to Canada. [109] During the meeting, Mr. Brown referred to Mr. Ellingson as "Uncle" and he suggested that the CW travel to Canada to meet with Mr. Brown and Mr. Ellingson together. [110] Between August 20, 2007, and October 12, 2007, Mr. Ellingson contacted the CW by phone several times. Their conversations related to the CW travelling to Canada with a pilot who was willing to smuggle drugs. [111] On October 12, 2007, in coordination with the RCMP and DEA, and upon receiving permission from the RCMP, the DEA Special Agent and the CW met with Mr. Brown and Mr. Ellingson in Abbotsford, British Columbia. This was evidence gathered in Canada to which Canadian rules of evidence apply. [112] During that meeting, Mr. Brown and Mr. Ellingson discussed with the CW and the undercover officer, the possibility of smuggling marijuana and cocaine between Canada and the United States. Mr. Brown discussed a plane crash, which occurred on July 6, 2007, in which he and Mr. Rock were injured, and expressed a desire to have a more "professional" smuggling group. [113] Mr. Ellingson and the CW also discussed using encrypted Blackberry devices to communicate within the group. Mr. Ellingson stated that he paid CA $300 to ensure that the contents and messages exchanged by the group using the Blackberry devices were

not detectable by law enforcement. Mr. Ellingson also told the undercover officer that he would deliver a Blackberry to him to communicate with the smuggling group. [114] During the October 12, 2007 meeting, Mr. Ellingson appeared wary, and asked how long the undercover officer and the CW had known each other. Mr. Ellingson also unplugged the telephone in the hotel room and looked for the car the undercover officer and the CW drove. [115] When discussing the specifics of transporting marijuana and cocaine, Mr. Brown and Mr. Ellingson told the undercover officer they would pay CA $300 per pound of marijuana and CA $1,000 per kilogram of cocaine. [116] Mr. Brown said the initial marijuana shipment would be approximately 500 pounds, since that was an amount which, if lost, would not significantly affect the group's operations. Mr. Brown told the undercover officer that they needed a successful load before they could trust him. After the initial delivery of 500 pounds of marijuana, Mr. Brown said the subsequent marijuana shipments would weigh 1000 to 1500 pounds. [117] The undercover officer inquired whether Mr. Brown or Mr. Ellingson owned a Learjet. Mr. Brown and Mr. Ellingson said that the group bought a Learjet 24, but that no one flew it. Mr. Ellingson commented that if the Learjet were seized or stolen, no one would care. [118] During the October 12, 2007 meeting, Mr.

Ellingson gave the CW an envelope containing U.S. currency which, according to Mr. Ellingson, was converted from CA $5,000. Mr. Ellingson told the CW the money was for Mr. Hazen, to pay his attorney's fees incurred when re-organizing his charter flight company after the July plane crash. [119] Mr. Hazen is expected to testify that he deposited several money orders into his bank account which represented funds Mr. Ellingson sent him to pay his attorney fees. [120] On May 28 and 29, 2008, the CW and Mr. Ellingson met in Mexico City to discuss the drug smuggling organization. Mr. Ellingson told the CW that Mr. Colling and Mr. Grunwald had engaged a new pilot and a new airplane and were working with Mr. Brown to import and distribute cocaine in Canada.

PARTY POSITIONS ON SUFFICIENCY OF EVIDENCE TO COMMIT [121] The Attorney General on behalf of the Requesting State argues that Mr. Ellingson's membership in the drug trafficking conspiracy is a reasonable inference arising from the Requesting State's evidence. They argue that the evidence contained in the ROC supports a reasonable inference that a conspiracy existed between all of the alleged conspirators, or at the very least between Mr. Brown and Mr. Ellingson, to traffic marijuana and cocaine by plane across the United States/Canada border. They say that Mr. Ellingson's acts of hiring pilots (or attempting to hire pilots) to fly controlled substances between the United States and Canada as described in the ROC amounts to a prima facie case that the group conspired to transport controlled substances, and that Mr. Ellingson was a member of that group. They say that the evidence summarized in the ROC satisfies the test for committal set out in s. 29 (1)(a) of the Act. [122] Mr. Ellingson says that the admissible evidence in the ROC is insufficient to establish an agreement of any kind. He says there is no evidence in the ROC that he agreed to traffic in marijuana or cocaine. [123] First, he says that the ROC does not provide evidence of a formed agreement. Relying on cases such as Akrami, he argues that no agreement was possible with a cooperating witness or an undercover agent.

Further, he argues that the ROC evidence suggests something less than an agreement, and a conspiracy cannot exist without the crystallization of an agreement. [124] Mr. Ellingson further argues that the conduct described in the ROC does not substantiate a pre-existing agreement. He says that there must be evidence of an agreement itself, not merely discussions and negotiations of an agreement: Baruca at paras. 193-197. He says that the ROC discloses nothing more than talk, with no action. Furthermore, he says that most of this talk was by Mr. Brown, not Mr. Ellingson. He says that statements ascribed to both himself and to Mr. Brown at the October 12, 2007 meeting cannot be reliably ascribed to him. [125] Ultimately, Mr. Ellingson says that there is no evidence that anyone acted on the discussions that involved Mr. Ellingson, and that there is no evidence that pilots were paid to fly the drugs discussed, or at the amounts discussed, or that Blackberry phones were actually provided. There is no evidence of subsequent payments (beyond the payments from Mr. Ellingson to Mr. Hazen for legal fees). He says a completed agreement cannot be reasonably inferred from these facts. [126] Mr. Ellingson argues that it is not enough that he knew people, such as Mr. Brown, involved in the trafficking group. Nor is it enough that he might have supplied things to that group, such as Blackberry

phones. Being a supplier to other persons involved in the conspiracy does not automatically make one a conspirator. [127] Mr. Ellingson argues that there may be evidence with respect to Mr. Colling, Mr. Grunwald, Mr. Rock and Mr. Hazen's involvement in the trafficking operation, but not his own. The evidence of his discussions with Mr. Brown he says are not, in and of themselves, sufficient to support an inference that an agreement had been formed between them to traffic in controlled substances. [128] Mr. Ellingson also relies on the case of R. v. Alexander, 2005 CanLII 32566, 32 C.R. (6th) 159 (Ont. C.A.) where Justice Doherty states: "Neither knowledge of or participation in a criminal scheme can be equated with the actus reus of conspiracy": Alexander at para.

47. He says that case establishes that there may be unlawful conduct, but that that does not necessarily establish a common intention to act unlawfully where there is no agreement or common intention proven. (I note that, after the above statement from Justice Doherty, the paragraph concludes with the following: "Knowledge and acts in furtherance of a criminal scheme do, however, provide evidence, particularly where they co-exist, from which the existence of an agreement may be inferred": Alexander at para. 47.) [129] In the end, Mr. Ellingson argues that there is no evidence upon which a reasonable jury, properly instructed, could judicially conclude that Mr. Brown and Mr. Ellingson reached an agreement. It may be reasonable to infer that they agreed to meet with the undercover officer and the CW, with whom they engaged in preliminary discussions about marijuana transportation only. He says there is no evidence of the completed, genuine agreement between anyone. [130] Therefore, even within this court's "modest function", Mr. Ellingson says it is the duty of the court to discharge him. [131] Furthermore, Mr. Ellingson argues that the ROC must disclose sufficient evidence not just of an illicit substance being trafficked, but of the specific substance alleged in the ATP. He says that there is no evidence of his involvement in the trafficking of cocaine in the ROC. He also argues that there is a significant difference between trafficking in cocaine and trafficking in marijuana for the purposes of extradition to the United States.

DETERMINATION [132] A conspiracy is complete when there is a meeting of the minds between two or more people regarding the common design to do something unlawful, specifically an indictable offence: Dynar at para.

86. There must be some evidence that there was such a common design or agreement (in this case the trafficking of cocaine and marijuana across the United States/Canada border), and that Mr. Ellingson intentionally and knowingly agreed to and participated in this common design. There must also be some evidence that the agreement crystallized; I accept Mr. Ellingson's argument that it is not sufficient that there only be preliminary discussions about a potential agreement. [133] The ROC provides substantial evidence of a number of persons working together to traffic marijuana and cocaine across the United States/Canada border in small planes. There is evidence that Mr. Colling, Mr. Grunwald and Mr. Brown were knowing participants in this operation, with evidence that Mr. Brown and Mr. Colling described the group's purpose and needs to various pilots, and attempted to recruit pilots for this purpose prior to October 2007. [134] There is also evidence that in 2007, cocaine was flown from the United States to Canada by some of the alleged conspirators, and that Mr. Brown was in a plane with Mr. Rock, and 700 pounds of marijuana, that failed to take off. [135] I find that there is some evidence of an agreement or common design to traffic cocaine and marijuana between the United States and Canada during this period. [136] With respect to Mr. Ellingson's knowledge and involvement in

the alleged common design to traffic in cocaine and marijuana, I find that the evidence summarized above includes evidence that may be relied upon in Canada when considering the crime of conspiracy based on the direction in Wang and Tran, despite the source being co-conspirator hearsay statements. For example, Mr. Brown's statement to the CW in Mexico in August 2007 that he is Mr. Ellingson's "partner" is hearsay for its truth, but is also context for the statement Mr. Ellingson himself made that the CW would meet "his partner" at the time and place the CW met Mr. Brown. Mr. Brown's statement that he and Mr. Ellingson want to hire a pilot, and the purposes and terms for that hiring, are hearsay for their truth, but also provide potential context for what Mr. Ellingson was referring to when Mr. Ellingson stated that his "partner" at this meeting had his "full authority". [137] With respect to the October 2007 meeting between Mr. Ellingson, Mr. Brown, the CW and the undercover officer, the summary of the undercover officer's evidence expressly includes Mr. Ellingson in some of the statements made, and in other places states that only Mr. Brown said certain things. Mr. Ellingson argues that where the summary includes statements by Mr. Brown and Mr. Ellingson, as opposed to just Mr. Brown, I cannot assume Mr. Ellingson also said those things. [138] While there is some

over-inclusion of Mr. Ellingson in other elements of the ROC, this aspect of the ROC is more precise. I consider that the distinctions made in the summary of the undercover officer's evidence as between when Mr. Ellingson and Mr. Brown said things, or when only Mr. Brown or only Mr. Ellingson said something, are reliable distinctions. I find that where the summary of the evidence in the ROC states that Mr. Brown and Mr. Ellingson said or discussed something that these statements were made by both Mr. Brown and Mr. Ellingson, and is therefore some direct evidence of Mr. Ellingson's words and conduct. [139] With respect to some of the statements attributed to Mr. Brown alone at that meeting, I have considered them because they provide context for Mr. Ellingson's own declarations and participation in that same discussion. [140] Having noted all of the above, I consider that the ROC, even without Mr. Brown's statements included for context, contains evidence of Mr. Ellingson's own words and conduct of his knowledge and membership in the alleged conspiracy. Furthermore, my conclusions would be the same without these contextual passages altogether. [141] Ultimately, I find that there is some evidence that could reasonably support a finding that Mr. Ellingson was a knowing participant with Mr. Brown, and others, in a common scheme to traffic both marijuana and cocaine. This includes

the ROC evidence that: a) In August 2007 Mr. Ellingson arranged a meeting between Mr. Brown and a pilot; b) In arranging this meeting, he described Mr. Brown as his "partner" with "full authority;" c) A meeting occurred between the pilot and Mr. Brown at the time, date and location directed by Mr. Ellingson, at which Mr. Brown described a trafficking operation of both cocaine and marijuana across the United States/Canada border; d) At a meeting in October 2007, Mr. Ellingson and Mr. Brown met with two pilots, one of which was a cooperating witness and one of which was an undercover agent. No agreement was reached with these would-be pilots at that meeting, and no such agreement could, in and of itself, constitute the actus reus of conspiracy. Nevertheless, Mr. Ellingson's statements and conduct at that meeting are some evidence of his knowledge of the common design, the activities, and acts in furtherance of those activities. e) Some evidence of Mr. Ellingson's knowledge of a scheme involving Mr. Brown and others to traffic cocaine and marijuana, and acts in furtherance of that scheme at that meeting include: i. Mr. Ellingson's involvement in the recruitment of these pilots to fly cocaine and marijuana between Canada and the United States, including discussing a rate per pound of marijuana and per kilo of cocaine trafficked; ii. Mr. Ellingson's statement that he arranged

encrypted communication used by "the group" and his offer to provide a similar device to one of the pilots; iii. Mr. Ellingson's knowledge of a Learjet, and his apparent willingness to speak for others about its utility; iv. Mr. Ellingson's payments to Mr. Hazen for his legal fees, including legal fees in relation to a registered flight company used for the smuggling group's purposes; and f) In May 2008, Mr. Ellingson met the CW in Mexico to discuss the drug smuggling organization. Mr. Ellingson's words at that meeting are further evidence of his knowledge of the scheme, including that Mr. Colling and Mr. Grunwald had engaged a new pilot and a new airplane and were working with Mr. Brown to import and distribute cocaine in Canada. [142] If the only evidence of the common design to smuggle cocaine and marijuana between the United States and Canada was the October 2007 meeting with Mr. Brown, Mr. Ellingson, the CW and the undercover officer, it may have been arguable that this evidence related to a potential agreement, as opposed to a completed agreement. [143] However, I am satisfied that the ROC provides some evidence that the trafficking operation discussed by Mr. Brown and Mr. Ellingson in October 2007 already existed as a common design, and that Mr. Ellingson was already knowledgeable and directly involved in furthering that agreement before that date. His words and conduct

after that date also provide some evidence of an ongoing knowledge of the "smuggling organization" and its efforts to traffic cocaine. [144] With respect to Mr. Ellingson's complaint that many of the witnesses relied upon in the ROC have made plea deals, I do not consider that this alone affects the reliability of their evidence for my purposes. It is well established that the evidence of accomplices testifying under a plea agreement does not render their testimony unreliable for the purposes of an extradition hearing: Scarpitti v. United States of America, 2007 BCCA 498 at para. 40. [145] I need not deal with the interesting question of what to do when the ATP alleges trafficking of both cocaine and marijuana, but the ROC only provides evidence with respect to one of these substances. I find that the ROC provides some evidence of Mr. Ellingson's knowledge of and intent to conspire to traffic in both substances.

CONCLUSION [146] I therefore find that the requirements of s. 29(1)(a) of the Act for committal for extradition are met. There is admissible evidence of conduct by Mr. Ellingson that, had it occurred in Canada, would justify his committal for trial in Canada on the offence of conspiracy to traffic drugs. I am also satisfied that Mr. Ellingson is the person sought by the extradition partner and described as Mr. Ellingson in the ROC. [147] Mr. Ellingson, I therefore order you committed into custody to await surrender to the United States of America. I must advise you, that you will not be surrendered until after the expiry of 30 days, and that you have a right to appeal this order and a right to apply for judicial interim release. "Marzari J."