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EXTRADITION AND CRIMINAL MUTUAL LEGAL ASSISTANCE

Wednesday, July 03, 2019 @ 8:06 AM  


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Appeal by S from his committal for extradition to the US to stand trial on charges of conspiracy, tax evasion and filing a false return and for judicial review of the Minister’s surrender order. The anticipated trial witnesses included persons who testified in a trial in 2009 and 2010 in the US on an indictment against six people, including S. S was not tried with the other accused because he moved to Canada prior to the indictment. The extradition judge dismissed the appellant’s application to introduce the US trial transcript to challenge the sufficiency of the evidence in the Record of the Case. The appellant argued the extradition judge erred in refusing to admit the transcript evidence, in providing inadequate reasons and in misconstruing the evidence summarized in the Record of the Case to conclude there was sufficient evidence to justify committal. He also argued the Minister failed to appropriately consider dual criminality and misapprehended or failed to adequately consider the materials submitted to her on the appellant’s behalf.

HELD: Appeal and application for judicial review dismissed. The extradition judge did not err in concluding that the proposed evidence contained in the submissions provided to him regarding the New York trial did not meet the high threshold for showing that the evidence summarized in the Record of the Case was so unreliable that it should be disregarded. While the proposed evidence might have revealed some inconsistencies in the Record of the Case evidence, it did not demonstrate that the evidence as a whole was so unreliable that it could not support the appellant’s committal. The evidence the appellant sought to introduce provided an incomplete counter narrative to the evidence in the Record of the Case and would have required the extradition judge to assess the ultimate reliability of the evidence. The judge’s reasons for the committal order performed the functions they were required to serve and were thus adequate. It was not necessary for the judge to give a detailed description of his thought process, and there was a logical connection between the evidence summarized in the Record of the Case, when coupled with the parties’ submissions, and the conclusion reached by the judge. The acceptance by the extradition judge of the Attorney General’s submissions did not rebut the presumption of judicial impartiality. There was no cogent evidence demonstrating that the judge failed to put his mind to the issues and to decide them impartially and independently. The appellant could not demonstrate any misapprehension of the evidence by the judge. The evidence summarized in the Record of the Case, had it occurred in Canada, would justify committal for trial in Canada on the offence of fraud set out in the authority to proceed. The Minister’s decision that she was entitled to rely on the certification of the US prosecutor that the evidence was sufficient to justify prosecution on the charges for which it sought extradition and that she did not need to be satisfied that the elements of the US offence of conspiracy matched the elements of the Canadian offence was reasonable. It was open to the Minister under s. 58(b) of the Extradition Act to order the appellant’s surrender on the conspiracy charges even though committal might have been justified only on other conduct alleged in the Record of the Case.  Section 58(b) gave flexibility to the Minister, and it was not unjust or oppressive, or unreasonable, for her to have surrendered the appellant to stand trial on all the offences for which the US sought his extradition. The appellant did not demonstrate the Minister misapprehended evidence.

United States of America v. Smith, [2019] B.C.J. No. 961, British Columbia Court of Appeal, D.F. Tysoe, E.A. Bennett and J.J.L. Hunter JJ.A., May 31, 2019. Digest No. TLD-July12019004