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EXTRADITION AND CRIMINAL MUTUAL LEGAL ASSISTANCE - Bars to extradition - Ability to prosecute in Canada

Monday, March 12, 2018 @ 8:32 AM  

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Appeal by Guevara-Mendoza and Mendoza from committal orders made against them in extradition proceedings. They also sought judicial review of the Minister of Justice’s decision to order their surrender to the US for prosecution. The US sought the extradition of the pair to stand trial for drug-related charges including conspiracy to export cocaine from the US into Canada, and conspiracy to import MDMA from Canada into the US. The Record of the Case (ROC) identified four shipments of narcotics that occurred in 2012 and 2013, the first three of which involved the exportation of over 54 kilograms of cocaine from the US into Canada, and the fourth of which involved the delivery of almost 60 kilograms of MDMA to a Canadian undercover officer on Canadian soil, under direction to transport the MDMA across the border and to deliver it to California. The central issue on the committal was whether Guevara-Mendoza and Mendoza directed the activities in question. In addition to the evidence from the police, a confidential witness (CW) who had consented to the interception of his communications was expected to testify that he served as the American contact for the appellants and was engaged by them to facilitate the movement of drugs in and out of Canada on all four occasions.

HELD: Appeal dismissed and application dismissed. There was no injustice worked in denying the appellants further disclosure of the case against them. They failed to identify a reason why the evidence collected by the Canadian authorities would not be admissible against them in court. There was no air of reality to their contention that additional disclosure would reveal manifest unreliability in the undercover officer’s identification evidence. The Authority to Proceed (ATP) alleged that the Canadian offence corresponding to the conduct for which the appellants were sought for prosecution in the US was a single conspiracy that had more than one illegal object. The extradition judge was entitled to conclude that this was an offence known to Canadian law. The orders of committal were not unreasonable or unsupported by the evidence. The appellants were linked to all four shipments by the voice identification of the CW, not shown to be manifestly unreliable. In addition to the other evidence, there was sufficient support for the case against the appellants to order extradition. The Minister had a reasonable basis to conclude that the US authorities were better equipped to prosecute the case against the appellants. The Minister was not at fault for failing to consider the relevant severity of the sentences faced by the appellants in the US versus Canada in rendering her decision, where the appellants had never asked her to do so. She gave due consideration to the impact that extradition would have on Mendoza’s three children.

United States of America v. Guevara-Mendoza, [2018] B.C.J. No. 249, British Columbia Court of Appeal, S. Stromberg-Stein, L. Fenlon and G.J. Fitch JJ.A., February 19, 2018. Digest No. TLD-Mar122018002