United States of America et al. v. Prudenza et al., (2007) 219 O.A.C. 369 (CA)

• Judge: Doherty, Simmons and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 09, 2007
• Jurisdiction: Ontario
• Citations: (2007), 219 O.A.C. 369 (CA);2007 ONCA 84;85 OR (3d) 380;218 CCC (3d) 225;[2007] OJ No 449 (QL);153 CRR (2d) 20;219 OAC 369;74 WCB (2d) 353

USA v. Prudenza (2007), 219 O.A.C. 369 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. FE.028

The United States of America and The Minister of Justice (respondents) v. Leslie Anderson (appellant)

(C43494; C44386)

Indexed As: United States of America et al. v. Prudenza et al.

Ontario Court of Appeal

Doherty, Simmons and Rouleau, JJ.A.

February 9, 2007.

Summary:

The applicants allegedly operated a telemarketing scheme in Toronto that defrauded American citizens of over $7,000,000. The accused were arrested and charged in Canada with fraud-related offences. The United States requested extradition. The applicants were committed for extradition and ordered surrendered to the United States by the Minister of Justice. The applicants appealed the committal order and sought judicial review of the surrender. Two of the three applicants submitted that the extradition judge erred in refusing to stay the proceedings on the ground of abuse of process and that the Minister breached their s. 6(1) Charter mobility rights by ordering their surrender. The third applicant (Anderson) submitted that the extradition judge erred in refusing to permit him to call a crucial witness (co-conspirator) at the extradition hearing.

The Ontario Court of Appeal, in a judgment reported (2006), 216 O.A.C. 231, dismissed the appeals and judicial review applications of the first two applicants. There was no abuse of process or denial of their s. 6(1) Charter rights. Anderson's appeal and judicial review application was adjourned to permit him to obtain counsel to argue that he should have been permitted to call the witness.

The Ontario Court of Appeal dismissed the appeal and judicial review application. The extradition judge correctly held that Anderson could not call the co-conspirator as a witness at the extradition hearing.

Extradition - Topic 2645

Evidence and procedure before examining judge - Evidence - General - Admissibility - Anderson and others allegedly operated a telemarketing scheme in Toronto that defrauded American citizens of over $7,000,000 - They were arrested and charged in Canada with fraud-related offences - The United States requested extradition - All were committed for extradition and ordered surrendered to the United States by the Minister of Justice - A co-conspirator implicated Anderson in a videotaped statement and grand jury testimony in the United States - The Ontario Court of Appeal held that the extradition judge did not err in refusing to allow Anderson to call the co-conspirator as a witness at the extradition hearing - The judge rejected Anderson's submission that the co-conspirator was to be called for "clarification" purposes, finding that the real purpose was to challenge credibility and the reliability of his evidence, which was impermissible - An extradition judge was not to rule on credibility or the reliability of evidence - The co-conspirator's evidence would be admissible only if, when considered with the rest of the record, it could lead the judge to conclude that the evidence offered as essential for a committal was so manifestly unreliable or defective that it should be disregarded - Where, as here, Anderson could provide no outline of what the co-conspirator's evidence would be or even whether it would be relevant, the judge correctly refused to permit the co-conspirator to be called.

Extradition - Topic 2658

Evidence and procedure before examining judge - Evidence - General - Evidence required to ground proceedings - [See Extradition - Topic 2645 ].

Cases Noticed:

United States of America et al. v. Ferras, [2006] 2 S.C.R. 77; 351 N.R. 1; 214 O.A.C. 326, appld. [para. 2].

United States of America et al. v. Yang (2001), 149 O.A.C. 364; 157 C.C.C.(3d) 225 (C.A.), refd to. [para. 17].

United States of America v. Shephard (1976), 9 N.R. 215; 30 C.C.C.(2d) 424 (S.C.C.), refd to. [para. 25].

United States of America v. Shulman (2001), 268 N.R. 115; 145 O.A.C. 201; 152 C.C.C.(3d) 294 (S.C.C.), refd to. [para. 25].

United States of America v. Thomlison (2007), 219 O.A.C. 322 (C.A.), refd to. [para. 28].

Truscott, Re (2006), 212 O.A.C. 258; 213 C.C.C.(3d) 183 (C.A.), refd to. [para. 37].

R. v. Kutynec (1992), 52 O.A.C. 59; 70 C.C.C.(3d) 289 (C.A.), refd to. [para. 37].

R. v. Lising (R.) et al. (2005), 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 201 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 94].

R. v. Pires; R. v. Lising - see R. v. Lising (R.) et al.

R. v. Garofoli et al. (1990), 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161 (S.C.C.), refd to. [para. 38].

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. 42].

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161, refd to. [para. 42].

United States of America v. Mach, [2006] O.J. No. 3204 (Sup. Ct.), refd to. [para. 44].

United States of America v. Huynh, [2006] O.J. No. 3730 (Sup. Ct.), refd to. [para. 46].

Statutes Noticed:

Extradition Act, S.C. 1999, c. 18, sect. 32(1)(c) [para. 23]; sect. 29(1)(a) [para. 24].

Counsel:

Andrew M. Czernik, for the applicant/appellant;

David A. Littlefield, for the respondents.

This appeal and application were heard on September 29, 2006, before Doherty, Simmons and Rouleau, JJ.A., of the Ontario Court of Appeal.

On February 9, 2007, Doherty, J.A., released the following judgment for the Court of Appeal.