USA v. Johal

2011 BCSC 1068 USA v. Johal

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: USA v. Johal, 2011 BCSC 1068 Date: 20110708 Docket: 25456 Registry: Vancouver In the matter of the Extradition Act, S.C. 1999, c. 18 as amended and In the matter of The Attorney General of Canada on behalf of The United States of America and Lakhwinder Singh Johal, also known as Lucky Johal Before: The Honourable Madam Justice Fenlon Oral Reasons for Judgment Counsel for the Attorney General of Canada on behalf of the Requesting State: K. Elvin-Jensen S. Repas Counsel for the Person Sought: M. Jetté Place and Date of Hearing: Vancouver, B.C. June 21-22, 2011 Place and Date of Judgment: Vancouver, B.C. July 8, 2011 [1] THE COURT: The United States of America seeks to extradite Lakhwinder Singh Johal for prosecution in the United States on drug offences. [2] It is alleged that Mr. Johal was involved in transporting into the United States and arranging for the distribution of a large quantity of marihuana. He is also alleged to have smuggled the proceeds of drug sales into Canada from the United States. [3] The Authority to Proceed issued on April 20, 2010, under s. 15 of the Extradition Act, S.C. 1999, c. 18 states that the Canadian offences which correspond to the alleged conduct are conspiracy to traffic in a substance listed in Schedule II of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 contrary to s. 5 of that

Act and s. 465 of the Criminal Code, and failure to report currency or monetary instruments contrary to s. 12 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17. [4] The evidence submitted on this application consists of a summary of the evidence available to the United States for use in a prosecution. The evidence is contained in the Record of the Case which was certified by the prosecuting authority on December 4, 2009, pursuant to s. 32 of the Act. The content of this document is admissible in evidence on the extradition hearing, even if it would not otherwise be admissible under Canadian law. [5] The available evidence, as set out in the Record of the Case, may be summarized as follows: as part of an investigation into the activities of Mr. Johal's brother, Rajinder Johal, that began in March 2004 (involving the Seattle division offices of the United States Drug Enforcement Administration ("DEA"), the United States Bureau of Immigration and Customs Enforcement ("ICE"), and detectives with the Seattle area Narcotics Enforcement Team), an authorization to intercept wire communications of Rajinder Johal's telephone was obtained on March 28, 2005. [6] Interception of that telephone began on March 29, 2005, and ended on May 20, 2005. During the course of the interception, a number of telephone calls pertaining to drug smuggling and

distribution and to bulk currency smuggling were intercepted. [7] Dindyal Jaswal, an indicted co-defendant with Rajinder Johal, entered a guilty plea in Washington State to conspiracy to distribute marihuana. Jaswal was sentenced in November 2006 to a term of imprisonment of 15 months. In his written plea agreement, he agreed to cooperate with the United States to provide information and testimony about his unlawful activities and the unlawful activities of others involved with him. [8] Jaswal will identify the speakers on the relevant intercepted calls as himself, Rajinder Johal, and Lakhwinder Johal. Jaswal will testify that conversations that occurred on April 20, 2005, at 7:40 p.m., between he and Rajinder Johal, a call one minute later between Rajinder Johal and Lakhwinder Johal, and a third call, made about 20 minutes after the second call ended, from Rajinder Johal to Mr. Jaswal, were part of and facilitated a 400‑pound marihuana transaction involving himself, Rajinder Johal, and Lakhwinder Johal. [9] Specifically, Jaswal will testify that 400 pounds of marihuana previously had been transported to California by an unidentified courier, and that at the time of the calls, Mr. Jaswal was trying to help Rajinder find a buyer for the drugs. Jaswal will testify that an item of major concern during this transaction was the poor quality of the marihuana and their inability to

find a purchaser due to its inferior quality. [10] Jaswal will testify that in the first call he was asking Rajinder Johal to find out the quality before he tried to sell it. Jaswal will testify that in the final call, he understood that Rajinder had called the source of the drugs and learned that the quality was B plus. [11] The middle call on April 20, 2005 (intercepted call 1476), which Jaswal identifies as involving Lakhwinder Johal and Rajinder Johal, includes the following exchange: RJ: LUCKY, THE QUALITY OF THE CD'S IS IT A, B OR C? PEOPLE ARE ASKING. LJ: IT IS LOW QUALITY, IT IS B. RJ: THEN IT WON'T SELL OVER THERE. LJ: THEN SELL IT WHEREVER, NO PROBLEM. RJ: OK, WHO ELSE IS GOING TO BUY IT? LJ: AAAAA RJ: OK, I WILL TALK FURTHER AND LET YOU KNOW. THEY ARE B? LJ: YEAH, YEAH. OK? NO PROBLEM. IT WAS QUALITY STUFF THE OTHER PERSON (SISTER FUCKER) SWITCHED THEM (MOTHER FUCKER). RJ: FROM THERE? THAT PERSON, CAN HE PICK UP ONE CD AND SHOW IT? LJ: YOU DON'T HAVE ANYONE THERE? RJ: WHERE IS THAT GUY? LJ: IN LA. RJ: SO HE HAS THE STUFF AT HOME. [12] On April 24, 2005, at 6:40 p.m., a telephone conversation, (1763), occurred between Rajinder Johal and another person Jaswal will identify as Lakhwinder Johal as follows: RJ: HELLO? LJ: HEY, BROTHER. RJ: YEAH, LAKHWINDER WHATS GOING ON? LJ: NOTHING MUCH. RJ: SO WHAT HAPPENED? LJ: SO STILL ARE WE GOING LITTLE FURTHER ON TUESDAY? RJ:

YES. LJ: OKAY HAVE CHAUDHRY AND WHOEVER ELSE, LAMBOO TAKE A DAY OFF. RJ: OK, OK, OK. LJ: SO WE WILL REACH THERE AND LEAVE IN THE EVENING. RJ: OK. LJ: OR SHOULD WE LEAVE FOR THERE ON WEDNESDAY MORNING INSTEAD? RJ: NO, NO. LJ: OK, NO PROBLEM. I SHOULD BE THERE ON TUESDAY BY 6 OR 7 0 'CLOCK. RJ: OK, GOOD. COME OVER. LJ: SO THEN BOOK IT AROUND 9. RJ: NO, WE WILL GO BY CAR. LJ: WE WILL GO BY CAR? RJ: YES OF COURSE BY CAR. IT WILL BE VERY EXPENSIVE OTHERWISE. LJ: OK. RJ: OK, THEN. LJ: OK.

CALL ENDED [13] Special Agent Kanekoa coordinated an interstate moving surveillance from Kent, Washington, to Castaic, California, and back to Washington State to watch the activities of Rajinder and Mr. Johal and a third travel companion. He and other surveillance agents, including helicopter surveillance, observed three individuals travelling by car in a vehicle owned by Rajinder from Kent, Washington, to Redding, California. In Redding, they left Johal's car at a repair business and rented a Pontiac Grand Prix. They continued their trip south in the rental car, culminating in a meeting in a hotel room in the Castaic, California, area. [14] The surveillance officers identified Rajinder as one of the three men, but were unable to identify whether Lakhwinder Johal was one of the other two men travelling with Rajinder. The Grand Prix arrived at a motel in Castaic, California, at approximately 5:40 p.m. on April 27, 2005. The three male occupants of the Grand Prix got out of the vehicle and went into Room 119. The surveillance witnesses will say that another male was dropped off at the motel and entered Room 119. At about 6:15 p.m., all four males left Room 119 in two separate cars. The two cars went to a nearby residence. [15] Three males exited the residence and left in the Grand Prix travelling north on I‑5 towards Seattle. The occupants of the Grand Prix were in Castaic,

California, for less than four hours before they left and made the long trip back to Kent, Washington. [16] On April 28, 2005, the three males returned the Grand Prix to the rental car service and continued north on I-5 in a black Mercedes Benz belonging to Rajinder Johal. [17] Washington State police stopped the vehicle on April 28 at approximately 11:30 a.m. on Interstate 5, north of Olympia, Washington. They stopped the vehicle as it was travelling northbound towards Seattle. The police officer asked for identification and was given documents by all three occupants identifying one of them as Lakhwinder Johal and another as Rajinder Johal. [18] Jaswal will testify that as a member of this drug enterprise he was aware of the trip to California by Rajinder and Lakhwinder Johal and a third person. Jaswal will testify that the purpose of the trip was to meet with criminal associates in California in order to push the sale of 400 pounds of marihuana, which previously had been delivered to California. [19] Jaswal will testify that the road trip to California was necessary because the 400 pounds of marihuana was of poor quality, and Lakhwinder Johal had to meet with potential brokers of the marihuana to discuss its sale, a conversation which Lakhwinder Johal did not want to conduct over the telephone. [20] The following evidence in the Record of the Case relates to the offence of

failing to report currency. On May 4, 2005, at 2:28 p.m., call 2692, a telephone call between Rajinder and Mr. Johal was intercepted. The following is the relevant portion: RJ SHOULD I CALL YOU BACK? LJ YOU MAY CALL BACK, ACTUALLY I NEEDED FIFTY OF FORTY. MUST. RJ HERE, YOU KNOW LAKHI, NOW HOW IT IS GOING? LJ WHAT? RJ NOT TO WORRY WE. WILL SEE WHAT HAPPENS. LJ WHAT YOU SAY! RJ WILL ARRANGE IT I SAY. WILL DO IT. LJ WHAT? RJ I SAY, WILL DO IT AND CALL YOU BACK. LJ AS I SAID IT IS A MUST, I AM STUCK. I HAVE BEEN TRYING FROM SOMEWHERE. ELSE BUT COULD NOT ARRANGE, RJ OK, YOU WILL GET IT, NOW, NOT TO WORRY. LJ OK. [21] A second call occurred between Rajinder and Mr. Johal the next day, May 5, 2005, at 5:49 p.m., number 2767, which included the following exchange: RJ: OK I'M COMING OVER TOMORROW. LJ: I KNOW THAT. BUT ANOTHER THING. RJ: YEAH? LJ: HELLO. RJ: HUNHH. LJ: ANHAANHAA...SO YOU HAVE TO A WHOLE ONE. MATTER OF FACT WHEN YOU GET HERE THEN CALL ME FIRST. WHAT? LJ: YOU HAVE TO DO ONE WHOLE (COMPLETE). RJ: OK, THEN. I DID'NT EVEN GET THE TEN BACK YET. LJ: WHAT? RJ: I DIDN'T GET THE TEN BACK YET. LJ: OK GO AHEAD AND JUST DO NINETY (90). RJ: OK. LJ: OK. ALL RIGHT. SO WHEN YOU GET HERE CALL ME WE WILL GO TO THE BANK. RJ: OK. TOMORROW. LJ YEAH. RIGHT. RJ: OK. LJ: AND JUST DO IT IN THE BIG ONES. RJ: THAT'S ALL I GOT. LJ: OK. VERY GOOD, VERY GOOD. OK THEN. RJ: OK THEN. [22] Special Agent

Kanekoa will testify that the references to 10 and 90 in the call are consistent with common code terminology used by drug traffickers to refer to currency. "Big ones" is the term often used by drug traffickers and others to refer to large denomination bills. [23] On May 6, 2005, a call occurred between Rajinder and Mr. Johal at 4:25 p.m., (number 2826) : RJ: HELLO. LJ: YES, BROTHER. RJ: YES, YES, YES. LT: YOU LEFT? RJ: NO, YOU LEFT. I AM NOT IDLE HERE. LJ: OK. RJ: WASTING ALL THE TIME. WHEN YOUR SISTER IN LAW COMES BACK FROM WORK THEN WE WILL LEAVE. LJ: OK, IS MANINDER BROTHER COMING? RJ: HE ALREADY LEFT. LJ: HE LEFT ALREADY? RJ: YES, HE CALLED. LJ: YOU SHOULD HAVE DONE PART OF IT THROUGH HIM. RJ: I WILL DO IT ALL MY SELF, SISTER FUCKER, NO WORRIES. LJ: OK, LATER. RJ: OK, BYE. LJ: OK. [24] ICE arranged for an outbound search of Rajinder's vehicle as he crossed the border on May 6, 2005. Rajinder was observed travelling from his residence in Kent, Washington, to the U.S. ‑ Canada border crossing at Blaine, Washington. He arrived at the border at 11:30 p.m., identified himself as Rajinder Johal, and declared that he was carrying $410 in currency. Inspectors searched him and found $90,000 in United States currency hidden around his waist. [25] Rajinder told the inspectors that he knew he was required by U.S. law to declare cash amounts of over $10,000 before leaving the United

States for Canada, but said he failed to declare the currency because he was afraid of tax problems with the IRS and had experienced such problems with the IRS in the past. [26] Jaswal will say that in the years 2002 to 2003, Rajinder Johal told him that he was dealing in marihuana and in particular that his brother Lakhwinder Johal got him started in the drug trafficking business, and that Lakhwinder was the right-hand man of an Indo-Canadian organized crime boss. [27] What is the test for committal? Section 29(1) of the Act requires an extradition judge to be satisfied that admissible evidence presented would justify committal for trial in Canada had the events occurred here: United States of America v. Ferras, 2006 SCC 33 [Ferras]. [28] The test for committal for trial in Canada is whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty: United States of America v. Shephard, [1977] 2 S.C.R. 1067, 30 C.C.C. (2d) 424 at 427. [29] As set out in Ferras, an extradition judge has the discretion to disregard evidence shown to be insufficient, including evidence that is manifestly unreliable or unavailable for trial, on the basis that it would be dangerous or unsafe to commit on such evidence. [30] Ferras demands a holistic appraisal of the evidence through the lens of judicial experience to determine whether the

evidence is demonstrably able to be used by a reasonable, properly instructed jury to reach a verdict of guilty. [31] The judicial phase of extradition proceedings requires a hearing before an impartial judge who must consider the facts and the law and be satisfied that they justify committal, before ordering extradition. As stated in Ferras at paragraphs 25 and 27, the judge must act as a judge and not as a rubber stamp. [32] What must the requesting state establish? The requesting state bears the onus of demonstrating a sufficient case for committal. The requesting state must establish that there is evidence admissible under the Act that first, would justify a committal in Canada on the offence as set out in the authority to proceed, and second, would establish identity, i.e. that the person before the court is the person who committed those offences. [33] With respect to the former, evidence that would justify committal in Canada requires at least some evidence on every element of the parallel Canadian crime. This is the double criminality requirement: Ferras at para.

38. However, it is not enough for evidence to merely exist on each element of the crime. The evidence must be demonstrably able to be used by a reasonable, properly instructed jury to reach a verdict of guilty. If the evidence is incapable of demonstrating this sufficiency for committal, then it cannot justify committal: Ferras, para. 46. [34] With respect to identification, as set out in United States v. Asiegbu, 2008 BCCA 519, at para. 71, two aspects of identification must be considered: 1. Whether on a balance of probabilities there is evidence that the person before the Court is the person sought by the extradition partner; and 2. Whether there is prima facie evidence that the person before the court is the person who engaged in the alleged conduct that underlies the extradition request. [35] Turning first to the double criminality requirement, having reviewed the evidence, I am satisfied that it establishes evidence of conduct that, had it occurred in Canada, would justify committal of the perpetrator as a principal in conspiracy to traffic, and as someone who is either a party to the offence of failing to report currency under s. 21 of the Criminal Code or someone who counselled Rajinder Johal to commit the offence under s. 22 of the Code. Indeed, counsel for the respondent does not take issue with the double criminality aspect of the test for committal. [36] As for

identification, the parties filed an admission of fact under s. 655 of the Criminal Code of Canada confirming that Lakhwinder Singh Johal is the person before the Court and the same person referred to in the Record of the Case who is being sought by the Government of the United States for prosecution for the conduct referred to in the Record of the Case. Accordingly, the first aspect of identification has been established. [37] The real issue is the second aspect of identification: whether the evidence proffered by the requesting state in these proceedings meets the test for committal by establishing prima facie evidence that Lakhwinder Johal is the person who engaged in the alleged conduct of conspiring to traffic in marihuana and failing to report currency. [38] The respondent submits that the requesting state has not met this burden, because the evidence in the Record of the Case is not sufficiently reliable to merit consideration. In Ferras, the approach to be taken when addressing challenges to the presumptive reliability of the evidence in the record of the case is addressed at para. 54: [54] Challenging the justification for committal may involve adducing evidence or making arguments on whether the evidence could be believed by a reasonable jury. Where such evidence is adduced or such arguments are raised, an extradition judge may engage in a limited weighing of evidence

to determine whether there is a plausible case. The ultimate assessment of reliability is still left for the trial where guilt and innocence are at issue. However, the extradition judge looks at the whole of the evidence presented at the extradition hearing and determines whether it discloses a case on which a jury could convict. If the evidence is so defective or appears so unreliable that the judge concludes it would be dangerous or unsafe to convict, then the case should not go to a jury and is therefore not sufficient to meet the test for committal. [Emphasis added.] [39] The respondent submits that the evidence in the Record of the Case fails to rise to the level of reliable identification evidence, both with respect to visual identification and voice identification of Mr. Johal. The key evidence linking Lakhwinder Johal to the person who conducted the alleged offences is the evidence of Jaswal, which first identifies the voice of Lakhwinder Johal on the telephone intercepts in which trafficking of marihuana is allegedly discussed, and on the telephone intercepts which allegedly involve directions being given to Rajinder Johal to bring money across the border into Canada. The second key evidence that Jaswal will give linking Lakhwinder Johal to the person who conducted the alleged offences is his identification of Lakhwinder Johal from the viewing of a single

photograph. [40] The respondent submits that the evidence in the Record of the Case underpinning how Jaswal can make these two identifications is so lacking in detail that it should be disregarded as unreliable. That evidence is found at page 23 of the Record of the Case and reads as follows: Mr. Jaswal will testify to meeting Lakhwinder Johal on three or four occasions in the past few years. He will testify that, based on his familiarity with Lakhwinder from these meetings, and his close familiarity with Rajinder Johal, he believes that it is indeed Lakhwinder and Rajinder Johal speaking on the telephone with each other in the intercepted telephone calls for which transcripts are included as labelled in the transcripts above. Mr. Jaswal will testify that Exhibit 1 is a photograph of the person he knows as Lakhwinder Johal. [41] The respondent submits that the underpinnings of Mr. Jaswal's identification of the voice and the picture of Mr. Johal is thus nothing more than, "I met Mr. Johal on three to four occasions over the past few years, and so know him and his voice." [42] In particular, counsel for the defendant submits the Record of the Case offers nothing further in support of Jaswal's anticipated identification evidence: the meetings with Lakhwinder Johal on three or four occasions are not described. There are no dates for those meetings; the circumstances under which

these meetings took place are not described. Jaswal offers no physical description of Lakhwinder Johal. It is not known how often Jaswal spoke with Lakhwinder Johal or the extent to which he had an opportunity to listen to Mr. Johal speak. His relationship with Rajinder Johal is described as one of close familiarity, in obvious contrast to limited contact with and knowledge of Lakhwinder Johal. [43] Jaswal's identification of Lakhwinder Johal in the Record of the Case comes from the showing of a single photograph, a notoriously unreliable procedure, if it should turn out that Jaswal's opportunity to observe Lakhwinder Johal in the flesh was limited in time or was less than ideal, given the surrounding circumstances, whatever they might have been. [44] Jaswal is not observed with Lakhwinder Johal in the surveillance described in the Record of the Case, nor is he a party to one of the intercepts where it is alleged that Lakhwinder Johal was on the phone. [45] The respondent argues that the bald assertion of previous contact with Mr. Johal does not provide a sufficient basis for establishing the reliability of Mr. Jaswal's evidence, because the Court cannot determine if he had sufficient opportunity to observe Mr. Johal to either form and retain a clear picture of him or to remember the sound of his voice. [46] In support of the need for detail to anchor the reliability of

identification evidence, the respondent points to USA v. Walker, 2008 BCCA 55 at paras. 26 and 27, in which the requesting state's record of case was found to be deficient because it failed to disclose the time of day, lighting conditions, and duration of the encounter between the identification witness and the person sought. [47] Walker involved the identification of the person sought from a single photograph and based on a fleeting view. Counsel for the respondent in the case at bar does not suggest that lighting details should have been provided by the requesting state, but he does insist that some description of the duration and nature of the circumstances of the meetings is necessary in order to permit the Court to do the limited weighing of reliability of the evidence required to determine whether the test for committal has been met. [48] The respondent contrasts Jaswal's bare assertion of three to four meetings with the evidence contained in the record of the case in United States v. Gallacher and Brown, 2008 BCSC 708, where a meeting between the person sought and the witness was described as a meeting in a coffee shop on a particular date. [49] The respondent submits that the bald assertion of previous meetings with Mr. Johal with no underlying facts, information, or context does not permit me as the extradition judge to judicially assess the probative value of the

identification evidence. [50] I respectfully disagree. If a person says he has been involved in a common enterprise with another and has met the other person three to four times over a few years in relation to that common enterprise, that provides some reliable evidence that he knows the sound of the other person's voice and what he looks like. [51] There is no threshold requirement for reliability of identification evidence. Evidence that has been accepted by extradition judges ranges from a fleeting view by a victim during a traumatic crime to a friendship of many years. In the matter before me, there is evidence of a common enterprise and previous meetings. There is accordingly more than a bald assertion that Jaswal knows Mr. Johal. Whether the degree of contact between them is in fact sufficient to establish identification beyond a reasonable doubt will be for the judge or jury at trial. [52] What I must consider is whether Jaswal's evidence, considered along with all of the other evidence in the Record of the Case, establishes a prima facie case. In one of the key telephone calls intercepted, Rajinder Johal refers to the other speaker as "Lucky" (number 1476). A police officer will testify that "Lucky" is a nickname used by Mr. Johal, although it is true, as counsel for the respondent pointed out, that the Record of the Case does not provide the basis for the officer's

knowledge of that nickname. In another intercepted call (1763), Rajinder Johal addresses the other speaker as "Lakhwinder". [53] Finally, there is surveillance evidence and the evidence of the officer who pulled the Grand Prix over at the end of the journey from Castaic, California. While it may be difficult, based on the surveillance evidence, to prove that Mr. Johal was one of the men involved in the earlier part of the journey, the surveillance evidence in conjunction with the telephone calls arranging just such a trip, and Mr. Jaswal's evidence that he, Lakhwinder Johal, and Rajinder Johal were all involved in the common enterprise of selling 400 pounds of marihuana in the United States, provide evidence from which an inference could be drawn that Mr. Johal was one of the three men observed travelling to Castaic. [54] R. v. Arcuri, [2001] 2 S.C.R. 828 is authority for the proposition that where direct evidence is lacking on any element of an offence charged, a reasonable jury, properly instructed, may infer from the circumstantial evidence facts necessary to prove that element. [55] In United States of America v. Lorenz; United States of America v. Narayan, 2007 BCCA 342, the British Columbia Court of Appeal recognized Ferras as having extended the Arcuri reasoning to extradition cases: paras. 33 to 35. [56] In the case before me, I am not satisfied that there is a basis

for disregarding any of the proffered evidence as being unreliable or unavailable. [57] Having considered all of the evidence and having engaged in a limited weighing of it, I conclude that there is some evidence upon which a properly instructed jury acting reasonably could find that the respondent is the person who engaged in the conduct described in the Record of the Case, and to reach a guilty verdict if the conduct had occurred in Canada. [58] I therefore order that the respondent Lakhwinder Singh Johal be committed into custody to await surrender pursuant to s. 29 of the Act. [59] Mr. Johal, under s. 38(2) of the Extradition Act, I am obliged to inform you that you will not be surrendered until after the expiry of 30 days and that you have a right to appeal the order I have made and to apply for judicial interim release or bail. [60] Finally, under s. 38 of the Act, I direct that the following documents be transmitted to the Minister: A copy of the committal order and all exhibits introduced at this hearing. I do not intend to make a report to the Minister under s. 38 of the Act. The Honourable Madam Justice L.A. Fenlon