United States of America v. Ranga, 2012 BCCA 81

• Judge: Newbury, Saunders and Neilson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 16, 2011
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 81;(2012), 317 B.C.A.C. 207 (CA)

USA v. Ranga (2012), 317 B.C.A.C. 207 (CA);

    540 W.A.C. 207

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. FE.035

In The Matter Of the Extradition Act, S.C. 1999, c. 18, as amended

The Attorney General of Canada on behalf of the United States of America (respondent/requesting state) v. Mandeep Kumar Ranga (appellant/person sought)

(CA038520; 2012 BCCA 81)

Indexed As: United States of America v. Ranga

British Columbia Court of Appeal

Newbury, Saunders and Neilson, JJ.A.

February 21, 2012.

Summary:

The United States charged Ranga with drug importation and money laundering offences, and requested his extradition. At the extradition hearing, Ranga contended that the requesting state had not proved on a balance of probabilities that he was the person sought. He requested a voir dire regarding alleged Charter breaches at the time of his arrest and to ask, as a remedy under s. 24(2) of the Charter, that the evidence be declared inadmissible or the proceedings stayed as an abuse of process.

The British Columbia Supreme Court declined to order a voir dire and ordered Ranga's committal for extradition. Ranga appealed, pursuant to s. 49 of the Extradition Act.

The British Columbia Court of Appeal dismissed the appeal.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See second Extradition - Topic 2645 ].

Extradition - Topic 22

General - Bars to extradition - Abuse of process - [See second Extradition - Topic 2645 ].

Extradition - Topic 23

General - Bars to extradition - Charter breaches - [See first and second Extradition - Topic 2645 ].

Extradition - Topic 2645

Evidence and procedure before examining judge - Evidence - General - Admissibility (incl. voir dire) - At his extradition hearing, Ranga contended that the requesting state had not proved on a balance of probabilities that he was the person sought - He requested a voir dire regarding alleged Charter breaches at the time of his arrest and to ask, as a remedy under s. 24(2) of the Charter, that the evidence be declared inadmissible or the proceedings stayed as an abuse of process - The extradition judge declined to order a voir dire: (1) there was no air of reality to the notion that the officers' identification evidence was affected by the alleged breaches, and (2) assuming the breaches posited, the cumulative effect of such breaches would not justify the remedies sought - The British Columbia Court of Appeal stated that the judge's latter reason was unassailable - " ... holding a voir dire was found to be unnecessary for the proper adjudication of the issue of admissibility of the evidence. In my view, this conclusion, in the circumstances disclosed in the record, is a complete answer to the complaint that denying Mr. Ranga the opportunity to cross-examine the officers in a voir dire so reduced the force of his application for a s. 24(2) remedy that we should quash the committal order" - Further it was not remarkable that the photograph in the Record of the Case was used by the judge in determining whether, on a balance of probabilities, the person sought was the person before the court - Under s. 37 of the Extradition Act, the judge was clearly entitled to compare the person before the court with a photograph of the person sought in order to establish identity - The fact that the judge relied on his own comparison of Ranga to the photograph was a full answer to the complaint that the judge considered police evidence identifying Ranga as the person sought - See paragraphs 18 to 24.

Extradition - Topic 2645

Evidence and procedure before examining judge - Evidence - General - Admissibility (incl. voir dire) - At his extradition hearing, Ranga contended that the requesting state had not proved on a balance of probabilities that he was the person sought - He requested a voir dire regarding alleged Charter breaches at the time of his arrest on the extradition warrant and to ask, as a remedy under s. 24(2) of the Charter, that the evidence be declared inadmissible or the proceedings stayed as an abuse of process - The extradition judge declined to order a voir dire - The impugned conduct of the police (allegedly asking questions of Ranga and searching him prior to arrest, failing to inform him of the reasons for his arrest, delaying advice of the right to counsel, and questioning third parties in violation of their rights) did not warrant the remedy of a stay of proceedings - The British Columbia Court of Appeal was not persuaded that the judge committed a reversible error in declining to hold a voir dire, or that a stay of proceedings would have been consistent with the authorities - In seeking a stay for abuse of process it was for Ranga to satisfy the judge that there was an air of reality to his allegations, and they were capable of supporting a stay of proceedings - A stay of proceedings was not lightly ordered - It would have been pointless to engage in a voir dire to explore circumstances as an abuse of process when the remedy of a stay of proceedings was not a realistic possibility - See paragraphs 25 to 30.

Extradition - Topic 2645

Evidence and procedure before examining judge - Evidence - General - Admissibility (incl. voir dire) - The United States charged Ranga with drug importation and money laundering offences, and requested his extradition - At the extradition hearing, Ranga contended that the requesting state had not proved on a balance of probabilities that he was the person sought - He requested a voir dire in order to advance submissions regarding alleged Charter breaches at the time of his arrest on the extradition warrant and to ask, as a remedy under s. 24(2) of the Charter, that the evidence be declared inadmissible - The extradition judge declined to order a voir dire and ordered Ranga's committal for extradition - Ranga appealed, pursuant to s. 49 of the Extradition Act - The British Columbia Court of Appeal, in dismissing the appeal, stated that "There is, in my view, no room for narrowing the discretion of a judge in deciding whether to conduct a voir dire, or grant an application for a stay, from that which applies in a criminal trial in Canada" - See paragraph 31.

Extradition - Topic 2657

Evidence and procedure before examining judge - Evidence - General - Identification - An extradition judge ordered Ranga's committal for extradition - On the appeal, Ranga contended that the judge, in finding "there is some evidence upon which a jury could convict" in relation to the allegations in the Record of the Case, reached an unreasonable conclusion - He submitted that the evidence before the judge contained frailties and weaknesses in two respects: (1) the eye witness identification of the police officers identifying Ranga as the person sought, and (2) the anticipated evidence of an informant - The British Columbia Court of Appeal rejected the submission - The complaint that the judge considered police evidence identifying Ranga as the person sought was completely met by the judge's reliance upon his own comparison of Ranga to the photograph in the Record of the Case - As to the submission concerning the informant, the evidence before the judge was that the informant was a drug dealer who pleaded guilty to related charges in the United States and was cooperating with the authorities there, with the hope of receiving a more lenient sentence - Apart from the details of alleged dealings between the informant and Ranga, there was no evidence from which one could conclude the informant was unreliable or that threshold reliability was not met - Certification by the requesting state that the evidence met the standards for trial in that state, made the evidence presumptively reliable - In this case there was no evidence to refute the informant's anticipated evidence as set out in the Record of the Case - The presumption of threshold reliability had not been rebutted - See paragraphs 33 to 37.

Extradition - Topic 3809

Practice - General - Stay of proceedings - [See second Extradition - Topic 2645 ].

Cases Noticed:

United States of America v. Asiegbu et al. (2008), 263 B.C.A.C. 152; 443 W.A.C. 152; 243 C.C.C.(3d) 88; 2008 BCCA 519, refd to. [para. 3].

Danielson v. United States of America - see United States of America v. Asiegbu et al.

R. v. Vukelich (M.) (1996), 78 B.C.A.C. 113; 128 W.A.C. 113; 108 C.C.C.(3d) 193; 37 C.R.R.(2d) 237 (C.A.), leave to appeal refused [1997] 2 S.C.R. xvi; 216 N.R. 239; 98 B.C.A.C. 80; 161 W.A.C. 80, refd to. [para. 14].

R. v. Bains (J.S.) (2010), 285 B.C.A.C. 227; 482 W.A.C. 227; 254 C.C.C.(3d) 170; 2010 BCCA 178, refd to. [para. 14].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 15].

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 15].

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. 16].

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. 16].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 17].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 17].

R. v. D.H.W., [2008] 2 S.C.R. 235; 375 N.R. 217; 255 B.C.A.C. 1; 430 W.A.C. 1; 2008 SCC 33, refd to. [para. 17].

R. v. Lauriente (R.M.) et al. (2010), 283 B.C.A.C. 215; 480 W.A.C. 215; 251 C.C.C.(3d) 492; 2010 BCCA 72, refd to. [para. 17].

R. v. Bohn (J.A.) (2000), 136 B.C.A.C. 263; 222 W.A.C. 263; 145 C.C.C.(3d) 320; 2000 BCCA 239, refd to. [para. 17].

R. et al. v. Larosa (N.) (2002), 163 O.A.C. 108; 166 C.C.C.(3d) 449 (C.A.), refd to. [para. 17].

R. v. Cornell (J.M.), [2010] 2 S.C.R. 142; 404 N.R. 133; 487 A.R. 1; 495 W.A.C. 1; 2010 SCC 31, refd to. [para. 17].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 17].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 17].

Canada (Attorney General) v. Khadr (2011), 280 O.A.C. 210; 106 O.R.(3d) 449; 2011 ONCA 358, refd to. [para. 17].

United States of America v. Khadr - see Canada (Attorney General) v. Khadr.

United States of America v. Anekwu, [2009] 3 S.C.R. 3; 393 N.R. 77; 275 B.C.A.C. 282; 465 W.A.C. 282; 2009 SCC 41, refd to. [para. 17].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 28].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 28].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 29].

United States of America et al. v. Ferras, [2006] 2 S.C.R. 77; 351 N.R. 1; 2006 SCC 33, refd to. [para. 33].

Counsel:

M. Nathanson, for the appellant;

D. Majzub, for the respondent.

This appeal was heard at Vancouver, British Columbia, on September 16, 2011, before Newbury, Saunders and Neilson, JJ.A., of the British Columbia Court of Appeal. In written reasons by Saunders, J.A., the Court of Appeal delivered the following judgment, dated February 21, 2012.