United States of America v. Anekwu, (2009) 393 N.R. 77 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 10, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 393 N.R. 77 (SCC);2009 SCC 41;393 NR 77;[2009] 11 WWR 383;247 CCC (3d) 99;310 DLR (4th) 1;69 CR (6th) 48;96 BCLR (4th) 1;275 BCAC 282;[2009] 3 SCR 3

USA v. Anekwu (2009), 393 N.R. 77 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] N.R. TBEd. SE.020

United States of America and Canada (Minister of Justice) (appellants) v. Henry Anekwu (respondent)

(32646; 2009 SCC 41; 2009 CSC 41)

Indexed As: United States of America v. Anekwu

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

September 24, 2009.

Summary:

Anekwu was committed for extradition by an extradition judge under the Extradition Act for alleged conduct corresponding to the Canadian offences of fraud and conspiracy to commit fraud contrary to the Criminal Code and unlawful telemarketing contrary to the Competition Act. The Minister of Justice ordered his surrender to the United States (the requesting state). Anekwu appealed the committal order and applied for judicial review of the surrender decision. The primary issue on appeal was the interpretation and application of s. 32 of the Extradition Act with respect to the admissibility of evidence gathered in Canada that formed part of the record of the case filed by the requesting state and certified under s. 33(3) of the Act. With respect to the judicial review application, Anekwu submitted that the Minister erred in ordering his surrender to face charges of aiding and abetting mail and wire fraud when those offences were not identified as Canadian equivalent offences in the Authority to Proceed, with the result that the surrender order was framed more broadly than the committal order.

The British Columbia Court of Appeal, in a decision reported (2008), 254 B.C.A.C. 30; 426 W.A.C. 30, Chiasson, J.A., dissenting, allowed the appeal, set aside the committal order and the subsequent order of surrender, and ordered a new extradition hearing. The court opined that the Canadian-gathered evidence as summarized in the record was inadmissible hearsay which did not "satisfy the rules of evidence under Canadian law" within the meaning of s. 32(2) of the Act. The respondents (i.e., the United States and the Minister of Justice) acknowledged that, if the Canadian-gathered evidence was not admissible, then neither the committal order nor the surrender order could stand. It was, therefore, unnecessary for the court to analyse the sufficiency of the evidence, or to review the Minister's decision. The United States and the Minister of Justice appealed.

The Supreme Court of Canada held that the Court of Appeal erred in its interpretation of s. 32(2) of the Act. The court interpreted s. 32(2) and discussed the evidentiary regime of the Extradition Act. In the result, the court held that the Canadian-gathered evidence was rightly admitted by the extradition judge, and together with the foreign-gathered evidence, provided ample support for the extradition request. The court therefore allowed the appeal and restored the committal and surrender orders.

Extradition - Topic 2645

Evidence and procedure before examining judge - Evidence - General - Admissibility - [See both Extradition - Topic 2660 ].

Extradition - Topic 2646

Evidence and procedure before examining judge - Evidence - General - Hearsay - [See both Extradition - Topic 2660 ].

Extradition - Topic 2660

Evidence and procedure before examining judge - Evidence - General - The record (incl. certification) - Anekwu was committed for extradition and the Minister of Justice ordered his surrender to the United States (the requesting state) - Anekwu appealed the committal order, arguing that the committal judge erred in admitting and relying upon a summary of the Canadian-gathered evidence set out in the record of the case by the requesting state (i.e., because this was inadmissible hearsay) - The primary issue on appeal was the interpretation and application of s. 32 of the Extradition Act with respect to the admissibility of the Canadian-gathered evidence - The British Columbia Court of Appeal allowed the appeal, holding that the Canadian-gathered evidence summarized in the record of the case was inadmissible hearsay which did not "satisfy the rules of evidence under Canadian law" within the meaning of s. 32(2) of the Act - The United States and the Minister of Justice appealed - The Supreme Court of Canada allowed the appeal, holding that the Court of Appeal erred in its interpretation of s. 32(2) of the Act - The Canadian-gathered evidence was rightly admitted, and together with the foreign-gathered evidence, provided ample support for the extradition request.

Extradition - Topic 2660

Evidence and procedure before examining judge - Evidence - General - The record (incl. certification) - Section 32(1) of the Extradition Act provided that, "(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) ..." - Section 32(2) provided that "Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted" - Section 33(1) provided that the record of the case had to include a "... document summarizing the evidence available to the extradition partner for use in the prosecution" - An issue arose as to whether, as a matter of statutory interpretation, evidence that was lawfully gathered in Canada and summarized in the record of the case by the requesting state was automatically admissible as part of the record of the case pursuant to s. 32(1)(a) of the Act, or whether that evidence had to still satisfy the rules of evidence under Canadian law such as the hearsay rule in order to be admitted in accordance with s. 32(2) - The Supreme Court of Canada interpreted s. 32(2) and discussed the evidentiary regime under the Extradition Act - The court held that s. 32(2) applied to all Canadian-gathered evidence, whether it formed part of the record of the case or not (i.e., the entirety of s. 32(1) was subject to the specific provision contained in s. 32(2)) - The court however rejected the argument that s. 32(2) required traditional adherence to the hearsay rule, rather, ss. 32(2) and 33(1), read together, provided for a modified approach to the hearsay rule unique to the extradition context - The court opined that a flexible approach that did not insist that evidence take a particular form, but that still ensured that the person sought could challenge the admissibility of evidence under the Charter, or its content according to Canadian evidentiary rules, was more consistent with the purpose of the extradition hearing - See paragraphs 1 to 31.

Cases Noticed:

United States of America v. McDowell (2004), 185 O.A.C. 306; 237 D.L.R.(4th) 677; 183 C.C.C.(3d) 149 (C.A.), refd to. [para. 6].

United States of America et al. v. Ferras, [2006] 2 S.C.R. 77; 351 N.R. 1; 214 O.A.C. 326; 209 C.C.C.(3d) 353; 2006 SCC 33, refd to. [para. 8].

United States of America v. Wacjman - see Wacjman v. Canada (Minister of Justice) et al.

Wacjman v. Canada (Minister of Justice) et al. (2002), 171 C.C.C.(3d) 134 (Que. C.A.), refd to. [para. 16].

Vallée (R.) v. United States of America (2006), 213 C.C.C.(3d) 553; 2006 QCCA 229, refd to. [para. 16].

R. v. Hape (L.R.), [2007] S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 25].

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321, refd to. [para. 26].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 27].

United States of America v. Kwok, [2001] 1 S.C.R. 532; 267 N.R. 310; 145 O.A.C. 36; 2001 SCC 18, refd to. [para. 29].

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161, refd to. [para. 31].

United States of America v. Smith (1984), 2 O.A.C. 1; 44 O.R.(2d) 705 (C.A.), refd to. [para. 31].

United States of America v. Earles (2003), 176 B.C.A.C. 231; 290 W.A.C. 231; 171 C.C.C.(3d) 116; 2003 BCCA 20, refd to. [para. 31].

Statutes Noticed:

Extradition Act, S.C. 1999, c. 18, sect. 32(1), sect. 32(2), sect. 33(1), sect. 33(2), sect. 33(3), sect. 33(4), sect. 33(5) [para. 14].

Counsel:

Janet Henchey and Jeffrey G. Johnston, for the appellants;

Sean Hern and Tim Dickson, for the respondent.

Solicitors of Record:

Attorney General of Canada, Ottawa, Ontario, for the appellants;

Farris, Vaughan, Wills & Murphy, Vancouver, B.C., for the respondent.

This appeal was heard on February 10, 2009, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada was delivered in both official languages by Charron, J., on September 24, 2009.