Digest: Rowan v Canada (Attorney General), 2018 SKCA 104

• Date: December 31, 2018

Reported as: 2018 SKCA 104

Docket Number: CA18102 , CACR 2933

Court: Court of Appeal

Date: 2018-12-31

Judges:

• Jackson
• Ottenbreit
• Whitmore

Subjects:

• Extradition � Appeal � Committal Decision
• Extradition � Appeal � Fresh Evidence
• Extradition � Appeal � Surrender Order
• Statutes � Extradition Act

Digest: The appellant was indicted in the United States (U.S.) for fraud equivalent charges. He allegedly continued to solicit money for the company he was CEO of after knowing that the wind turbines it developed did not produce higher than usual amounts of electricity. After a hearing in the Court of Queen�s Bench, the appellant was ordered, pursuant to s. 29 of the Extradition Act, to be committed into custody to await surrender to the U.S. The appellant made submissions to the minister under s. 43(1) of the Act. The minister ordered the appellant to be surrendered to the custody of the U.S. in accordance with s. 40 of the Act. The appellant appealed the committal decision under s. 49 and he sought judicial review of the minister�s surrender order under s. 57. He also applied to adduce fresh evidence and for an extension of time to make the application. The Court of Appeal considered the following issues: 1) should the fresh evidence be admitted; 2) was the committal decision unsupported by the evidence; and 3) was the surrender order reasonable?
HELD: The appeal was dismissed and the application for judicial review was denied. The issues were analyzed as follows: 1) the fresh evidence sought to be introduced was an affidavit from the appellant attaching a waybill that he argued contradicted one individual�s evidence at the application. Section 683(1)(d) of the Criminal Code, regarding fresh evidence, applied by virtue of s. 52(1) of the Act. The Palmer factors for the introduction of fresh evidence have been adopted in extradition matters. The Palmer factors are: diligence; relevance; credibility; and materiality. The case became presumptively reliable when the U.S. certified it. The extradition judge has limited ability to critically assess the evidence and the judge is limited as to the evidence that can be considered in the committal hearing. The appeal court extended the time for the fresh evidence application because the appellant had limited access to his records such that it was not appropriate to deny him a hearing of the application to adduce fresh evidence. The court then considered the Palmer factors: a) the court did not give much weight to the due diligence factor and found it unnecessary, given the remaining Palmer factors considered together; and b) relevance and materiality. The waybill was found to cast doubt on the reliability of the record, but a single instance of where the record of the case is not sufficient does not rebut the presumption of reliability inherent in the Extradition Act. The appeal court concluded that the waybill evidence would have had no impact on the outcome of...