Hearsay and its Limits in Extradition Proceedings: Is the Use of Supplementary Records of the Case to Rebut Allegations of Misconduct Constitutional?

• Author: Purser, Stacey M.

Introduction

1. The Mechanics of Ordinary Extradition Proceedings

2. The Rules of Evidence Under the Old Extradition Act and Their Perceived Shortcomings

3. The New Extradition Act and the New Rules of Evidence

4. The Upholding of the Record of the Case Method in Ferras;Latty

5. The Supreme Court's Decision in Cobb and Companion Cases

6. Use of the Record of the Case to Defend Allegations of Impropriety: The Case of Abdullah Khadr

7. Does the Use of the ROC in the Context of Charter Litigation Conform to Procedural Fairness, Being a Principle of Fundamental Justice?

8. Suggestions for Reform: Making Use of the Canada Evidence Act

9. Comparing this Approach to the Current Law of Extraterritorial Disclosure Orders in Extradition Proceedings

10. Why Simply Adopting a Principled Approach to Hearsay Would Not Work Conclusion

    Introduction

    Prior to the overhaul of the Extradition Act (1) in 1999, evidence admitted into Canadian-held extradition hearings was required to conform with Canadian rules of evidence. (2) As such, evidence was received under oath and hearsay was presumptively inadmissible. (3) Given the significant differences in the rules of evidence between civil and common law jurisdictions, it was alleged (4) that many states were "so discouraged by the . . . hurdles imposed . . . that they [did] not even initiate an extradition request". (5) It was said that "[t]he primary problem is that the current legislation mandates that the foreign states submit evidence in support of their request in a form which meets the complicated requirements of Canadian evidentiary rules." (6) While unsupported by any formal legal opinion, it was claimed before Parliament that, as a result of these high evidentiary requirements, Canada was unable to "fulfill its international obligation and expeditiously extradite fugitives to other countries in order to face justice". (7) As a result, the Extradition Act, 1877 was redrafted in its entirety and the "Record of the Case" (ROC) method of proof was adopted. (8)

    Under the new Extradition Act, (9) a Requesting State is permitted to simply summarize the evidence available against the Person Sought in the ROC. There are no restrictions on the inclusion of hearsay nor is the ROC required to be made under oath. To the contrary, as the ROC is generally produced by the "judicial or prosecuting authority" (10) that certifies it, the ROC is full of hearsay evidence. Once the Requesting State certifies that the evidence is available for trial and is either "sufficient under the law of the extradition partner to justify prosecution" (11) or "was gathered according to the law of the extradition partner" (12) it becomes admissible and is presumptively reliable, (13) regardless of the nature of the evidence, what jurisdiction it comes from, or whether there are additional indicia of reliability.

    Prior to the Supreme Court of Canada's 2011 decision in United States of America v Cobb, (14) it was unclear that an Extradition Judge was competent to grant remedies under the Canadian Charter of Rights and Freedoms. (15) As such, in 1998 when the Extradition Act, 1999 was being drafted, whether or not the ROC method of adducing evidence would be utilized where an allegation of a breach of the Charter was alleged in the context of extradition proceedings was not considered. That is, how is an Extradition Judge supposed to weigh conflicting evidence and make findings of fact on the basis of an ROC? Do these rules permitting foreign authorities to submit evidence via an ROC that is not under oath and not subject to cross-examination, yet is presumptively reliable, withstand constitutional scrutiny when examined in the context of Charter litigation? These are questions that, unfortunately, were not considered by Parliament when drafting the portions of Bill C-40 that would later become the Extradition Act, 1999.

    The thesis of this paper is that while the ROC method of adducing evidence withstood constitutional scrutiny in Ferras;Latty (16) in the context of "ordinary" extradition proceedings, its recent use in rebutting allegations of misconduct on the part of the Requesting State was not one of Parliament's intended purposes. Where the Person Sought raises an air of reality to allegations of misconduct, it is inconsistent with fundamental conceptions of what is fair and right in a Canadian society, and violates the principle of fundamental justice that proceedings be conducted fairly, to allow the Requesting State to deny allegations of impropriety through an unsworn document that is full of hearsay and for which cross-examination is not permitted.

    To demonstrate this thesis, the case of United States of America v Khadr (17) will be examined to show the perils that can occur when allegations of misconduct are allowed to be addressed by the Requesting State through ROCs, Supplemental ROCs (SROCs), and even sworn affidavits. Ultimately, it will be suggested that ROCs (and SROCs) should be limited to establishing "some evidence" on each element of the offence particularized in the Authorization to Proceed (ATP) as originally intended. Where the Extradition Judge is required to weigh conflicting evidence and make findings of fact, as when allegations of impropriety are made and a stay of proceedings is sought, recourse should be made to the provisions of the Canada Evidence Act (18) and the Criminal Code, (19) which were introduced in Bill C-40, 1999 alongside the new Extradition Act. That is, where facts are in dispute the evidence adduced should conform with Canadian rules of evidence as much as reasonably possible. At minimum, it should be received under oath, contain as little hearsay as possible, and be subject to cross-examination.

1. The Mechanics of Ordinary Extradition Proceedings

   Prior to discussing any rules of evidence, a basic understanding of the Canadian extradition process is essential. In an ordinary extradition proceeding, where the Person Sought is simply putting the Requesting State to their burden of proof (i.e., showing some evidence on each element of the offence specified in the ATP, per United States of America v Shephard), (20) the matter proceeds in Superior Court much like "paper preliminary inquiries" (21) do in lower courts.

   The process begins when the Requesting State asks the Minister of Justice and Attorney General of Canada to surrender an individual that is in Canada back to the Requesting State. The Requesting State (a.k.a. "Extradition Partner") is the jurisdiction that intends to prosecute the Person Sought for an alleged criminal offence. (22) In the Requesting State, the Person Sought would be known as the "Accused". In some cases and commentaries, the Person Sought is referred to as the "Fugitive". (23)

   If the Minister of Justice determines that the alleged offence meets the preconditions set out in the Extradition Act, 1999, (24) and any applicable extradition treaty, the Minister of Justice issues an ATP. The ATP "authorizes the Attorney General to seek, on behalf of the extradition partner, an order of the court for the committal of the person" (25) and specifies the Canadian equivalent of the offence for which the Person Sought is alleged to have committed.

   At the committal hearing, which proceeds in Superior Court, the Attorney General is no longer required to call viva voce evidence or produce statements free of hearsay. Rather, the Attorney General is permitted to place a summary of the evidence before the Court through the ROC. If the ROC establishes that the individual before the Court is the individual sought by the Requesting State and that there is some evidence on each element of the offence, as particularized in the ATP, a warrant of committal for surrender will be issued by the Extradition Judge. From there, whether the Person Sought is ultimately surrendered to the Requesting State is a matter for the Minister of Justice to determine.

   In other words, in an ordinary extradition hearing, like a preliminary inquiry, the Extradition Judge is only engaging in a very limited weighing of the evidence to determine whether there is some evidence upon which a properly instructed trier of fact could convict. (26) Matters of credibility and reliability are generally not considered, unless the Person Sought can establish that the presumptively reliable evidence in the ROC is "manifestly unreliable" (27) per Ferras;Latty, discussed in greater detail below.

2. The Rules Of Evidence Under The Old Extradition Act and Their Perceived Shortcomings

   Prior to the Extradition Act, 1999 coming into force, the Extradition Act, 1877 required that the evidence adduced during extradition hearings conform with Canadian rules of evidence. (28) However, the law did not go so far as to require foreign witnesses to be produced either for examination in chief or cross-examination. (29) As such, extradition hearings proceeded on written forms of sworn statements from witnesses who had first-hand knowledge of the allegations. In that sense, expediency and reliability were appropriately balanced to ensure that extradition hearings proceeded quickly, yet on sworn, direct evidence. (30)

   Given the significant differences in the rules of evidence between civil and common law jurisdictions, however, it was thought that it was very difficult for civilian states to request extradition from Canada. (31) This led to concerns within the government that Canada may become a "safe haven" for criminals, as many civilian states would either fail to meet the evidentiary requirements or give up entirely and not make the request at all. (32)

   As noted by Professor Anne Warner LaForest, the preliminary criminal proceedings of many civilian states do not use evidence taken under oath, there are no penalties for making a false statement, and much of the evidence collected includes second- or even third-hand hearsay. (33) As such, the evidence needed to bring a request for extradition under the Extradition...