United States of America v. Rosenau, (2010) 292 B.C.A.C. 294 (CA)

• Judge: Finch, C.J.B.C., Newbury and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 08, 2010
• Jurisdiction: British Columbia
• Citations: (2010), 292 B.C.A.C. 294 (CA);2010 BCCA 461

USA v. Rosenau (2010), 292 B.C.A.C. 294 (CA);

    493 W.A.C. 294

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. OC.023

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) v. Henry C. Rosenau (appellant)

(CA037212; 2010 BCCA 461)

Indexed As: United States of America v. Rosenau

British Columbia Court of Appeal

Finch, C.J.B.C., Newbury and D. Smith, JJ.A.

October 20, 2010.

Summary:

Rosenau was sought for extradition by the U.S.A. for trial on the corresponding Canadian offences of trafficking in cannabis (marijuana) and conspiracy to traffic in cannabis (marijuana). The supplemental record of the case and the second supplemental record of the case disclosed that the only available evidence for trial on each of the elements of both offences was the direct evidence of an accomplice who was said to have entered into a plea agreement with the authorities from the requesting state. The accomplice had not yet been sentenced and his evidence was uncorroborated. Rosenau applied for disclosure of information on the manner in which the accomplice's evidence was procured. The extradition judge dismissed the application (see [2009] B.C.T.C. Uned. 125). The extradition judge granted a committal order (see [2009] B.C.T.C. Uned. 805). Rosenau appealed, arguing that the extradition judge erred in law in dismissing his request for disclosure as the requested information had the potential to demonstrate that the accomplice's evidence was manifestly unreliable and therefore insufficient to justify committal. Rosenau also argued that the extradition judge erred in law by failing to provide sufficient reasons for granting the committal order.

The British Columbia Court of Appeal dismissed the appeal. The court was not persuaded that the extradition judge erred in refusing Rosenau's application for disclosure or that he failed to provide sufficient reasons for committal.

Extradition - Topic 2648

Evidence and procedure before examining judge - Evidence - General - Disclosure - Rosenau was sought for extradition by the U.S.A. for trial on the corresponding Canadian offences of trafficking in cannabis (marijuana) and conspiracy to traffic in cannabis (marijuana) - The supplemental record of the case and the second supplemental record of the case disclosed that the only available evidence for trial on each of the elements of both offences was the direct evidence of an accomplice (Whelpley) - Whelpley was said to have entered into a plea agreement with the authorities from the requesting state - He had not yet been sentenced and his evidence was uncorroborated - Rosenau applied for disclosure of information on the manner in which Whelpley's evidence was procured - The extradition judge dismissed the application on the ground that Rosenau had failed to demonstrate an "air of reality" to the allegation that Whelpley's evidence had the potential to be manifestly unreliable and therefore insufficient to justify committal - Rosenau appealed - The British Columbia Court of Appeal dismissed the appeal - Rosenau was effectively asking for the opportunity to discover if there was a "reasonable possibility" that evidence that could undermine the reliability of Whelpley's evidence existed, without having to demonstrate, from the record or by adducing evidence, that it was manifestly unreliable - That request amounted to no more than a fishing expedition for evidence from which Rosenau might try to mount an attack on Whelpley's credibility - While such an approach might be appropriate at trial, it exceeded the focus of an extradition hearing which was limited to determining threshold reliability of evidence as a requirement of s. 29(1) of the Extradition Act - See paragraphs 36 to 64.

Extradition - Topic 2648

Evidence and procedure before examining judge - Evidence - General - Disclosure - Rosenau was sought for extradition by the U.S.A. for trial on the corresponding Canadian offences of trafficking in cannabis (marijuana) and conspiracy to traffic in cannabis (marijuana) - The supplemental record of the case and the second supplemental record of the case disclosed that the only available evidence for trial on each of the elements of both offences was the direct evidence of an accomplice (Whelpley) - Whelpley was said to have entered into a plea agreement with the authorities from the requesting state - He had not yet been sentenced and his evidence was uncorroborated - Rosenau applied for disclosure of information on the manner in which Whelpley's evidence was procured - The extradition judge dismissed the application on the ground that Rosenau had failed to demonstrate an "air of reality" to the allegation that Whelpley's evidence had the potential to be manifestly unreliable and therefore insufficient to justify committal - Rosenau appealed - The British Columbia Court of Appeal dismissed the appeal - The court stated, inter alia, that "The appellant submits that since Ferras [S.C.C.], the scope of the earlier jurisprudence on disclosure has been or should be expanded. However, the expanded scope of the role of the extradition judge in the limited weighing of the evidence has more to do with weighing inferences that might be drawn from circumstantial evidence in support of committal than the weighing of direct evidence ... Ferras has not, in my view, opened the door to an expansion of the categories of disclosure for the purpose of challenging the reliability of direct evidence that has been certified in the manner authorized by s. 33(3)(a) of the [Extradition] Act" - See paragraph 53.

Extradition - Topic 2916

Provisional arrest and detention - Warrant of committal - General - Reasons for decision - Rosenau was sought for extradition by the U.S.A. for trial on the corresponding Canadian offences of trafficking in cannabis (marijuana) and conspiracy to traffic in cannabis (marijuana) - The extradition judge granted a committal order - Rosenau appealed, arguing that the reasons of the extradition judge to justify committal were insufficient because he failed to identify what aspects of the evidence that he relied upon to justify committal contained sufficient indicia of reliability - The British Columbia Court of Appeal stated that "I am not persuaded the appellant has established that the reasons of the extradition judge were so inadequate to have met the standard for appellate intervention" - See paragraphs 65 to 68.

Extradition - Topic 2930

Provisional arrest and detention - Warrant of committal - Grounds for issue of - Evidence - The British Columbia Court of Appeal stated that "Section 32(1)(c) of the [Extradition] Act provides that relevant evidence to the s. 29(1) requirements is evidence that the extradition judge considers reliable. Reliable evidence in the context of assessing the sufficiency of the evidence for committal refers to threshold reliability. The test to be met is 'whether the evidence tendered possesses sufficient indicia of reliability to make it worth consideration by the judge at the hearing' ... Only if the evidence meets the test of threshold reliability can it be admitted and 'its reliability for the purposes of extradition [be] determined in light of all the evidence presented at the hearing' ... The test for determining the ultimate reliability of the evidence (or the guilt or innocence of the accused) is not the focus of the extradition hearing but is a matter to be left for trial" - See paragraphs 41.

Extradition - Topic 2930

Provisional arrest and detention - Warrant of committal - Grounds for issue of - Evidence - The British Columbia Court of Appeal stated that "the 'air of reality' test from Larosa, Scarpitti and Constanzo provides an appropriate standard for assessing allegations of threshold unreliability or manifest unreliability of the admitted evidence for committal. In other words, in the absence of an allegation of a Charter breach, state misconduct and/or an abuse of process, the sufficiency of the certified evidence must be challenged through arguments that demonstrate an apparent defect (an omission or discrepancy) in the record or supplemental record of the case, or from evidence adduced that goes to the issue of threshold reliability or availability of the evidence" - See paragraph 55.

Extradition - Topic 3803

Practice - General - Disclosure - [See both Extradition - Topic 2648 ].

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; 2006 SCC 33, consd. [para. 6].

United States of America v. Graham (2007), 243 B.C.A.C. 248; 401 W.A.C. 248; 222 C.C.C.(3d) 1; 2007 BCCA 345, leave to appeal denied (2007), 383 N.R. 394; 266 B.C.A.C. 320; 449 W.A.C. 320 (S.C.C.), consd. [para. 8].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 20].

R. et al. v. Larosa (N.) (2002), 163 O.A.C. 108; 166 C.C.C.(3d) 449 (C.A.), consd. [para. 24].

Scarpitti v. United States of America (2007), 247 B.C.A.C. 234; 409 W.A.C. 234; 228 C.C.C.(3d) 262; 2007 BCCA 498, consd. [para. 25].

R. v. Dowe (M.G.), [2008] 3 S.C.R. 109; 382 N.R. 1; 271 N.S.R.(2d) 398; 867 W.A.C. 398; 2008 SCC 55, consd. [para. 31].

R. v. Dowe (M.G.) (2007), 260 N.S.R.(2d) 306; 831 A.P.R. 306; 2007 NSCA 128, consd. [para. 31].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 39].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 40].

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321, consd. [para. 45].

United States of America v. Kwok, [2001] 1 S.C.R. 532; 267 N.R. 310; 145 O.A.C. 36; 2001 SCC 18, consd. [para. 45].

United States of America v. Shulman, [2001] 1 S.C.R. 616; 268 N.R. 115; 145 O.A.C. 201; 2001 SCC 21, consd. [para. 45].

United States of America v. Constanzo (2009), 268 B.C.A.C. 105; 452 W.A.C. 105; 2009 BCCA 120, consd. [para. 45].

United Kingdom v. Tarantino, [2003] B.C.T.C. 1134; 177 C.C.C.(3d) 284; 2003 BCSC 1134, refd to. [para. 51].

United States of America v. Fordham (2005), 211 B.C.A.C. 195; 349 W.A.C. 195; 196 C.C.C.(3d) 39; 2005 BCCA 197, refd to. [para. 51].

United States of America v. Dhanda (2010), 286 B.C.A.C. 112; 484 W.A.C. 112; 2010 BCCA 200, refd to. [para. 53].

United States of America v. Lorenz et al. (2007), 243 B.C.A.C. 219; 401 W.A.C. 219; 222 C.C.C.(3d) 16; 2007 BCCA 342, leave to appeal refused (2008), 384 N.R. 390; 267 B.C.A.C. 322; 450 W.A.C. 322 (S.C.C.), refd to. [para. 53].

United States of America v. Gunn, [2007] 4 W.W.R. 707; 212 Man.R.(2d) 241; 389 W.A.C. 241; 2007 MBCA 21, refd to. [para. 60].

Lake v. Canada (Minister of Justice), [2006] O.A.C. Uned. 587; 212 C.C.C.(3d) 51 (C.A.), affd. [2008] 1 S.C.R. 761; 373 N.R. 339; 236 O.A.C. 371; 2008 SCC 23, refd to. [para. 66].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 66].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 66].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514 (C.A.), refd to. [para. 66].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 66].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 66].

Counsel:

D. Jevning, for the appellant;

D.B. Majzub, for the respondent.

This appeal was heard on September 8, 2010, at Vancouver, British Columbia, before Finch, C.J.B.C., Newbury and D. Smith, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by D. Smith, J.A., on October 20, 2010.