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Criminal - Extradition. United States v. Sychantha
In United States v. Sychantha (Ont CA, 2023) the Court of Appeal considered an appeal of an extradition committal order:[3] The appellant was unrepresented at the extradition hearing. The appellant had had several lawyers acting for him up to the hearing but, in each case, he had discharged the lawyer. Indeed, a Rowbotham order had been obtained prior to the hearing to provide the appellant with a lawyer but the appellant also discharged that lawyer.
[4] The appellant does not argue that the evidence provided by the requesting state as presented on the committal hearing did not justify committal. Rather, he now contends that the extradition hearing was unfair because the extradition judge did not provide him with sufficient assistance given his unrepresented status. We do not agree. We do not see anything that the extradition judge failed to do that materially affected the fairness of the hearing. It is always possible to argue that the presiding judge could have done more. Perfection is not, however, the standard to be applied. The appellant must demonstrate a serious failure and that he has not done: R. v. Forrester, 2019 ONCA 255, at para 17.
[5] The appellant’s main complaint is that the evidence in the record identifying him as the person who supplied the drugs was flawed. Again, we do not agree. Six separate witnesses identified the appellant by photographs shown to them. In addition, details about each witness’s personal familiarity with the appellant were provided. It is noteworthy that many of the witnesses had ongoing contact with the appellant, mostly in person, on multiple occasions over the course of many months. The appellant was not a stranger to the witnesses.
[6] In any event, any challenge to the quality of the identification process is a matter for trial. In that regard, it is important to remember that the test to be applied by an extradition judge under s. 29(1)(a) of the Extradition Act, S.C. 1999, c. 18 is the committal test applied by a justice at a preliminary inquiry in a domestic Canadian prosecution. Consequently, the extradition judge does not evaluate the strength of the case, nor do they generally evaluate the credibility or reliability of the witnesses. The evidence must be rendered "so defective" or "so unreliable" before an extradition judge can disregard it: U.S.A. v. Anderson, 2007 ONCA 84, at paras 28-31. . United States v. Creighton
In United States v. Creighton (Ont CA, 2023) the Court of Appeal considered when surrender of a person under extradition would offend Charter s.7 and the Extradition Act:[2] The Minister’s decision to surrender for extradition is entitled to substantial deference: Lake v. Canada, 2008 SCC 23, at para. 41. The Minister must apply the correct legal principles and engage in the proper legal analysis. The Minister must also reach a “defensible” conclusion on the application of the relevant principles to the facts as found by the Minister: United States of America v. Leonard, 2012 ONCA 622, at para. 48, leave to appeal refused, [2012] S.C.C.A. No. 490.
[3] If the applicant cannot demonstrate a material legal error, this court will interfere with the Minister’s decision only if that decision is outside a range of reasonable outcomes.
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[9] Surrender of a person for extradition in circumstances that would “shock the conscience of the community” contravenes that person’s rights under s. 7 of the Charter: United States v. Burns, 2001 SCC 7, at para. 60; Canada v. Fischbacher, 2009 SCC 46. The Minister must also refuse to surrender a person if, in all the circumstances, the surrender would be “unjust or oppressive”: Extradition Act, s. 44(1)(a). The constitutional standard and the statutory provision overlap: Lake, at para. 24, Fischbacher, at para. 39.
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