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Monday, April 27, 2020 @ 10:14 AM  

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Appeal by Duong from a committal order for extradition to Germany. The appellant, a Canadian citizen, was charged with cultivation of marihuana in Germany. After attending 12 days of trial, he was released from custody. He left Germany before the conclusion of his trial and was convicted and sentenced in absentia. The Record of the Case and the Supplemental Record of the Case were translated from German. The English translation of the Record of the Case read that the German prosecutor confirmed that the documents were correct, as opposed to certified. Germany sought the appellant’s committal pursuant to s. 29(1)(b), as a person who had been convicted. The appellant tendered evidence to show that he was not properly summoned to court, as required by the German authorities as he had been released by them and told to go home and was therefore not present for his hearing. The extradition judge excluded this evidence on the basis that it was not relevant to the tests set out in s. 29(1). The appellant acknowledged that he was not told that his case was over, nor did he contact his lawyer. The appellant argued the extradition judge erred by refusing to admit his evidence tendered in relation to the issue of the proper section of the Act that applied for committal, applying the wrong committal section, concluding that the appellant had been duly summoned to appear in Germany, and concluding that the extradition documents were properly certified when they used the word confirmed.

HELD: Appeal dismissed. The extradition judge did not err in concluding that the documents were properly certified, and that the use of the word confirm was a translation issue. The documents were identified as accurate by an authority with the knowledge to do so. The use of the word confirm instead of certify did not defeat the Record of the Case. The extradition judge applied an incorrect test to assessing both the reliability and the relevance of the appellant’s evidence as to whether the appellant was properly summoned to appear in court in Germany. She placed too high a burden on the reliability aspect of the evidence when she refused the admission of the evidence. The sequence of events leading to his release from custody could not, however, support the conclusion that the evidence essential to committal was so unreliable or defective that it should be disregarded. The Record of the Case which was properly certified stated that the appellant was summoned to appear the day after he absconded.

The appellant was present at his trial and could thus not avail himself of s. 29(5). He attended a significant part of his trial, and had a lawyer represent him throughout the proceedings, including on the hearing dates he missed while in Canada. The Record of the Case stated that he was properly summoned to attend. He clearly had notice of the proceedings brought against him.

Germany v. Duong, [2020] B.C.J. No. 339, British Columbia Court of Appeal, M.E. Saunders, H. Groberman and E.A. Bennett JJ.A., March 5, 2020. Digest No. TLD-April272020001