United States of America v. Kerslake, (1996) 142 Sask.R. 112 (QB)

• Judge: Baynton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 17, 1996
• Jurisdiction: Saskatchewan
• Citations: (1996), 142 Sask.R. 112 (QB)

USA v. Kerslake (1996), 142 Sask.R. 112 (QB)

MLB headnote and full text

In The Matter Of the Extradition Act, R.S.C. 1985, ch. 3-23.

And In The Matter Of An Application By the United States of America, Requesting State, For the Extradition of Lance Edward Kerslake

The United States of America (requesting state) v. Lance Edward Kerslake (fugitive)

(1995 Q.B. No. 2687)

Indexed As: United States of America v. Kerslake

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Baynton, J.

April 17, 1996.

Summary:

The United States of America applied to extradite Kerslake from Canada to stand trial in Colorado on two narcotics charges. Kerslake was jointly indicted with another individual on charges of: (1) conspiring with others to possess with intent to distri­bute more than 100 kilograms of marijuana; and (2) possessing with intent to distribute more than 100 kilograms of mari­juana.

The Saskatchewan Court of Queen's Bench held that the evidence was sufficient to justify the committal of Kerslake.

Civil Rights - Topic 525

Mobility rights - Right to remain in Canada - Extradition - The Saskatchewan Court of Queen's Bench stated that the extradition of a fugitive was not a vio­lation of his s. 6(1) Charter right to remain in Canada - See paragraph 83.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition pro­ceedings - The Saskatchewan Court of Queen's Bench stated that "[e]xtradition procedure does not offend the principles of fundamental justice and accordingly does not deprive a fugitive of his right to liberty under s. 7 [Charter] ... one of the differ­ences between a preliminary inquiry and an extradition hearing is that in the latter, affidavit evidence is permitted which precludes the right of cross-examination by the fugitive on such evidence. The evidentiary standard of extradition pro­ceedings is not so low that it offends the Charter" - See paragraphs 84 and 85.

Civil Rights - Topic 3129

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition pro­ceedings - It was argued that the different and somewhat more preferential treatment afforded an accused at a preliminary inquiry than that afforded a fugitive at an extradition hearing, discriminated against fugitives and violated the rights under ss. 7 and 15 of the Charter - The Saskatchewan Court of Queen's Bench rejected the argument - See paragraph 86.

Civil Rights - Topic 5502

Equality and protection of the law - Whether right to equality abridged - [See second Civil Rights - Topic 3129 ].

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - Application of - General - [See first Extradition - Topic 8 ].

Civil Rights - Topic 8305.1

Canadian Charter of Rights and Freedoms - Application - Section 11 - [See second Extradition - Topic 8 ].

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - [See Extradition - Topic 2646 ].

Extradition - Topic 8

Extradition - Application of Charter - The Saskatchewan Court of Queen's Bench discussed the manner in which the Charter applied to extradition proceed­ings - The court addressed three questions: (1) what rights protected by the Charter were ap­plicable to the extradition process; (2) when Charter submissions should be made (whether at the extradition hearing or subsequently to the Minister of Justice); and (3) how interventionist the courts should be in applying Charter consider­ations to a process which has international ramifications - The court held that it would deal with Charter submissions brought by the fugitive even though they might be premature - See paragraphs 73 to 81.

Extradition - Topic 8

Extradition - Application of Charter - The United States of America sought extradi­tion of a fugitive to stand trial on narcotics charges in Colorado - The issue arose whether the delay by the requesting state in bringing charges against the fugi­tive or in com­mencing the extradition proceed­ings vio­lated his rights under ss. 7 and 11 of the Charter - The Saskatchewan Court of Queen's Bench stated that any delay in the extradition process in Canada was occa­sioned by adjournments requested by the fugitive and any prior delay would involve the actions of foreign authorities which were not subject to Charter scrutiny - Further, the Supreme Court of Canada had held on other occasions that s. 11 was inapplicable to the extradition process - See paragraph 82.

Extradition - Topic 261

Treaties - Interpretation - General - The Saskatchewan Court of Queen's Bench stated that it was trite law that the Extra­dition Act and Treaties should be inter­preted purposively, recognizing that such proceedings are essential to a free and democratic society - See paragraph 17.

Extradition - Topic 651

Extraditable offences - Canada Extradition Act - General - [See Extradition - Topic 261 ].

Extradition - Topic 717

Extraditable offences - Canada-U.S. Treaty - Drug trafficking - The United States of America applied for the extradi­tion of Kerslake from Canada to stand trial in Colorado on two narcotics charges - He was jointly indicted with another individ­ual on charges of: (1) conspiring with others to possess with intent to distribute more than 100 kilograms of marijuana; and (2) possessing with intent to distribute more than 100 kilograms of marijuana - The Saskatchewan Court of Queen's Bench held that the evidence was sufficient to justify the committal of the fugitive - The court was satisfied that the alleged conduct of the fugitive in the state of Colorado would, if committed in Canada, constitute crimes in Canada that were extraditable crimes - See paragraph 88.

Extradition - Topic 2605

Evidence and procedure before examining judge - Purpose of hearing - The Saskatchewan Court of Queen's Bench reviewed the nature and objective of ex­tradition proceedings and the case law which interpreted the applicable statute law - See paragraphs 16 to 55.

Extradition - Topic 2606

Evidence and procedure before examining judge - Nature of hearing - [See Extradi­tion - Topic 2605 ].

Extradition - Topic 2606

Evidence and procedure before examining judge - Nature of hearing - The Saskatchewan Court of Queen's Bench stated that although an extradition hearing is similar in procedure to a preliminary inquiry, it was different and care had to be exercised in applying principles of law established in cases involving preliminary inquiries respecting crimes committed in Canada - See paragraph 20.

Extradition - Topic 2641

Evidence and procedure before examining judge - Evidence - General - The United States of America applied for the extradi­tion of Kerslake from Canada to stand trial in Colorado on two narcotics charges - He was jointly indicted with another individ­ual on charges of: (1) conspiring with others to possess with intent to distribute more than 100 kilograms of marijuana; and (2) possessing with intent to distribute more than 100 kilograms of marijuana - Kerslake chal­lenged the sufficiency of the evidence on the basis that there was no evidence that Kerslake had any knowledge that 12 boxes which were delivered to him and which were in his possession con­tained narcotics - The Saskatchewan Court of Queen's Bench held that there was evidence from which the trier of fact could infer such knowledge - See paragraphs 66 to 71.

Extradition - Topic 2643

Evidence and procedure before examining judge - Evidence - General - Affidavits - The fugitive at an extradition hearing argued that affidavit evidence was only admissible under s. 16 of the Extradition Act in s. 18(1)(a) extradition proceedings for a convicted fugitive - The Sas­katchewan Court of Queen's Bench held that the fugitive's submission was contrary to the plain reading of the section and the established extradition practice - The court also rejected the fugitive's contention that the documents failed to meet the standards of Saskatchewan law - The court stated that it was obvious from the Act and the case law that one of the basic differences between a preliminary inquiry and an extradition hearing was that affidavit evi­dence is admissible in an extradition hear­ing - Admissibility at a preliminary inquiry was not a condition precedent to admissibility at an extradition hearing - See paragraph 57.

Extradition - Topic 2645

Evidence and procedure before examining judge - Evidence - General - Admissibil­ity - The Saskatchewan Court of Queen's Bench discussed the forms of evidence admissible at an extra­dition hearing - See paragraphs 47 to 55.

Extradition - Topic 2646

Evidence and procedure before examining judge - Evidence - General - Hearsay - The Saskatchewan Court of Queen's Bench held that affidavits submitted at an extra­dition hearing contained a substantial amount of hearsay evidence that was inad­missible - The requesting state conceded that the court should consider only the direct evidence contained in the affidavits - However, that did not mean that hearsay evidence could never be relied on in an extradition hearing - The court stated that "[h]earsay evidence is admis­sible under Canadian law if it meets the joint tests of necessity and reliability ... The nature and function of an extradition hearing, and the practical difficulties and expense facing an applicant to obtain and present direct evidence in a foreign court, lends itself to the consideration in appro­priate cases of reliable second hand evi­dence" - See paragraphs 6 and 7.

Extradition - Topic 2666

Evidence and procedure before examining judge - Evidence - Foreign documents - Authentication - General - The fugitive at an extradition hearing challenged two bundles of documents arguing that they were not properly authenticated as required by the Extradition Act and Treaty and that the exhibits were not properly marked and each affidavit was not separately authenti­cated - The Saskatchewan Court of Queen's Bench outlined how the docu­ments were authenticated and held that the fugitive's technical objections had no merit - See paragraphs 58 to 63.

Cases Noticed:

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 7].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 7].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 7].

Schmidt v. Canada, [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161; 33 C.C.C.(3d) 193, refd to. [para. 17].

United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469; 96 N.R. 321; 23 Q.A.C. 182; 48 C.C.C.(3d) 193, refd to. [para. 17].

United States of America v. McVey, [1992] 3 S.C.R. 475; 144 N.R. 81; 16 B.C.A.C. 241; 28 W.A.C. 241, refd to. [para. 27].

United States of America v. Lépine, [1994] 1 S.C.R. 286; 163 N.R. 1; 69 O.A.C. 241, refd to. [para. 27].

United States of America v. Smith (1984), 2 O.A.C. 1; 10 C.C.C.(3d) 540 (C.A.), leave to appeal refused (1984), 55 N.R. 395; 4 O.A.C. 239 (S.C.C.), refd to. [para. 28].

United States of America v. McAllister (1994), 63 Q.A.C. 68 (C.A.), refd to. [para. 28].

Washington (State) et al. v. Johnson, [1988] 1 S.C.R. 327; 83 N.R. 1; 40 C.C.C.(3d) 546, refd to. [para. 29].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215; 34 C.R.N.S. 207; 70 D.L.R.(3d) 136; 30 C.C.C.(2d) 424, refd to. [para. 31].

McVey v. United States (1989), 50 C.C.C.(3d) 277 (B.C.C.A.), refd to. [para. 31].

Armstrong v. Wisconsin (State) (1973), 10 C.C.C.(2d) 271 (F.C.A.), refd to. [para. 38].

Philippines (Republic) v. Pacificador (1993), 64 O.A.C. 344; 14 O.R.(3d) 321 (C.A.), refd to. [para. 41].

United States of America v. Houslander (1993), 13 O.R.(3d) 44 (Gen. Div.), refd to. [para. 41].

Argentina (Republic) v. Mellino, [1987] 1 S.C.R. 536; 76 N.R. 51; 80 A.R. 1; 33 C.C.C.(3d) 334, refd to. [para. 43].

United States of America v. Wong (No. 2) (1995), 59 B.C.A.C. 39; 98 W.A.C. 39; 98 C.C.C.(3d) 332 (C.A.), refd to. [para. 45].

United States of America v. Garcia, [1994] O.J. No. 1027 (Gen. Div.), refd to. [para. 45].

United States of America v. Rennie (1984), 56 A.R. 321; 34 Alta. L.R.(2d) 193 (Q.B.), refd to. [para. 51].

Nixon, Re (1984), 1 O.A.C. 296; 10 C.C.C.(3d) 376 (C.A.), refd to. [para. 52].

United States of America v. Leon (1995), 77 O.A.C. 313; 96 C.C.C.(3d) 568 (C.A.), affd. (1996), 195 N.R. 228; 90 O.A.C. 217 (S.C.C.), refd to. [para. 52].

Grabowsky, Re (1930), 53 C.C.C. 75 (N.S.T.D.), refd to. [para. 55].

Beaver v. R. (1957), 118 C.C.C. 129 (S.C.C.), refd to. [para. 66].

R. v. Larier (1960), 35 C.R. 61 (Sask. C.A.), refd to. [para. 66].

R. v. Skogman, [1984] 2 S.C.R. 93; 54 N.R. 34; 41 C.R.(3d) 1, refd to. [para. 66].

Authors and Works Noticed:

LaForest, Anne Warner, Extradition to and from Canada (3rd Ed. 1991), pp. 21 to 23 [para. 18]; 154 [para. 53]; 172 [paras. 29, 41]; 173, 174 [para. 41].

Counsel:

B. Miller, for the United States of America;

S. Halyk and M. Vanstone, for Lance Edward Kerslake.

This case was heard before Baynton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following oral judgment on April 17, 1996.