Proving and Fighting Committal: Evidentiary Issues

• Author: Nancy L. Dennison/Seth Weinstein
• Pages: 225-257

225

Proving and

Fighting

Committal:

Evidentiary

Issues

11

I. Evidence at the Committal Hearing .......................... 227

A. Record of the Case .................................. 227

B. Evidence Under the Treaty ............................ 236

II. Challenging Committal .................................... 237

A. Challenging the Certification or the “Availability” of the

Evidence .......................................... 238

B. Challenging the Threshold Reliability of the Evidence in

the Record of the Case by Calling Evidence ............... 241

C. Evidence That Is Generally Not Admissible ............... 242

D. Challenging Opinion/Expert Evidence ................... 246

E. Challenging Committal by Arguing That There Is

Insufficient Evidence Contained in the Record of the Case ... 248

F. Challenging the Completeness of the Record of the Case ... 250

G. Challenging Contradictions and Inconsistencies in the

Record of the Case .................................. 251

H. Challenging the Translation of the Record of the Case ...... 252

I. Challenging Canadian-Gathered Evidence ................ 253

Appendix 11.1 Suggested Topics for Committal Factum ......... 255

Appendix 11.2 Sample Certification .......................... 257

226 Prosecuting and Defending Extradition Cases: A Practitioner’s Handbook

The extradition judge has two major decisions to make at the extradition hearing/

committal hearing. The judge must determine, first, whether the evidence is admissible

for the purpose of the hearing and, second, whether that evidence is sucient to justify

committal for extradition.1

The extradition hearing commences when the attorney general files the authority

to proceed.2 The attorney general will then tender its evidence in support of committal.

Usually, this will consist of a paper record of the case (ROC) or evidence that is admis-

sible pursuant to the relevant treaty. The attorney general may also call any evidence

that would otherwise be admissible under Canadian law. The person being sought for

extradition is also permitted to call evidence that is reliable and relevant to the test for

committal. Any arguments made concerning the admissibility of the evidence filed by

either the attorney general or the person sought should be made prior to submissions

regarding the suciency of the evidence. To summarize the order in which extradition

matters generally proceed:

Before the committal hearing

1. Any disclosure motions.

2. Any Charter3 motions that do not relate to admissibility of the evidence (i.e., abuse of

process). Where the evidence overlaps with evidence at the committal hearing, Charter

motions may take place during the committal hearing.

At the committal hearing

3. The authority to proceed is filed.

4. The evidence in support of committal is filed by the attorney general (i.e., the ROC).

5. Arguments are heard regarding the admissibility of the evidence (including the avail-

ability of the evidence, or Charter arguments).

6. Arguments are heard regarding what evidence, if any, the person sought wishes to file

to render the evidence filed by the attorney general manifestly unreliable.

7. Arguments are heard concerning the suciency of the evidence.4

1 United States of America v Ferras; United States of America v Latty, 2006 SCC 33 at para16,

[2006] 2 SCR 77.

2 Section 24(1) of the Extradition Act, SC 1999, c18.

3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being ScheduleB

to the Canada Act 1982 (UK), 1982, c11 [Charter].

4 See e.g. R v Viscomi, 2016 ONSC 1830; R v Viscomi, 2016 ONSC 5423; and R v Viscomi, 2016

ONSC 6658.

Chapter 11 Proving and Fighting Committal: Evidentiary Issues 227

Regardless of whether the rules of the court require it, it is wise to file a factum

prior to the extradition hearing to assist the judge. Appendix 11.1 to this chapter contains

an outline of topics one may wish to include in a factum.

I. Evidence at the Committal Hearing

Extradition has it own rules of evidence reflecting the limited purpose of the extradi-

tion hearing. Section 32(1) of the Extradition Act sets out the evidence that is admissible

at the extradition hearing as follows:

32(1) Subject to subsection (2), evidence that would otherwise be admissible under

Canadian law shall be admitted as evidence at an extradition hearing. The following

shall also be admitted as evidence, even if it would not otherwise be admissible under

Canadian law:

(a) the contents of the documents contained in the record of the case certified

under subsection 33(3);

(b) the contents of the documents that are submitted in conformity with the terms

of an extradition agreement; and

(c) evidence adduced by the person sought for extradition that is relevant to the

tests set out in subsection 29(1) if the judge considers it reliable.

(2) Evidence gathered in Canada must satisfy the rules of evidence under Canadian

law in order to be admitted.

A. Record of the Case

The ROC is the most common way that evidence is filed by the attorney general at the

extradition hearing. The ROC contains a summary of the evidence in support of com-

mittal that is certified by the requesting state. The requirements for the admissibility

of the ROC are set out in section33 of the Act as follows:

33(1) The record of the case must include

(a) in the case of a person sought for the purpose of prosecution, a document

summarizing the evidence available to the extradition partner for use in the prosecu-

tion; and

(b) in the case of a person sought for the imposition or enforcement of a sentence,

(i) a copy of the document that records the conviction of the person, and

(ii) a document describing the conduct for which the person was convicted.

(2) A record of the case may include other relevant documents, including documents

respecting the identification of the person sought for extradition.

The ROC was introduced in the 1999 Extradition Act to modernize the extradition

process. Many non – common law countries found it dicult to comply with the previ-

ous Extradition Act’s requirement of sworn adavits based on first-hand evidence

because these countries did not gather evidence in the same manner as Canada. Even

common law countries, such as the United States, found the requirement of first-hand