





CITATION:
United States of
          America v.
Shanker
, 2011
          ONCA 452



DATE: 20110614



DOCKET: C52791 and C53318



COURT OF APPEAL FOR ONTARIO



Rosenberg, Lang and Watt JJ.A.



BETWEEN



The Attorney General of Canada on behalf of the United
          States of America



Respondent



and



Ravi Shanker



Appellant



Alan D. Gold, for the appellant



Richard Kramer, for the respondent



Heard:
May 18, 2011



On appeal from committal by Justice
          Julie A. Thorburn of the Superior Court of Justice dated September 22, 2010
          and an application for judicial review pursuant to s. 57 of the
Extradition Act
, S.C. 1999, c. 18.



ENDORSEMENT



[1]

This appeal from committal and review of the decision of
    the Ministers decision raise the same issue: the sufficiency of the evidence
    in the Record of the Case.  We are
    satisfied that there was sufficient evidence and that there are therefore no
    grounds to set aside the committal or the Ministers decision.

[2]

The appellant does not dispute that there was evidence
    of a conspiracy involving persons with whom the appellant was in contact.  The conspiracy involved the attempted
    delivery of 48 kilograms of cocaine from Los Angeles to Toronto.  The Authority to Proceed sets out the
    Canadian offence to which this conduct corresponds as conspiracy to traffic in
    a substance included in Schedule I to the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19
.
The United States
    authorities alleged that the appellant financed the transaction and oversaw the
    Canadian brokers involved in securing the deal.  The evidence against the appellant and the other alleged conspirators
    came principally from wiretaps that were in place from May to December
    2007.  The wiretaps show that by
    September 18, the alleged conspirators were arranging to ship 50 kilograms of
    cocaine, later reduced to 48 kilograms, by truck from California.  On September 21, the truck was stopped in New
    Mexico and the cocaine was seized.  By September
    22, conversations of the alleged conspirators indicated a concern that the
    shipment may have disappeared.

[3]

An important person in the alleged conspiracy is
    Narinder Singh who was alleged to be the broker and coordinator in Canada.  The communications on September 22 show Singh
    arranging a meeting to discuss the problem of the missing cocaine.  He then immediately called the appellant and
    told him that there is some small problem  from here 50 shirts  they said
    they have disappeared.  He told the appellant
    that he had gathered everybody.  The
    appellant replied, give me 10 to 15 minutes.

[4]

Another important alleged conspirator is Varinder
    Sahota who, it is alleged, acted as a broker and coordinator in Canada.  On September 23, Singh told Sahota that this
    is your responsibility.  Sahota in turn
    said that he was worried and mentioned the figure of $800,000 which he said was
    the value of the stuff.  About three
    weeks later, the intercepted communications show attempts by Singh and Sahota
    to obtain the funds.  Importantly, on
    October 12, Singh told Sahota to make a cheque in the name of R & S
    Liquidations, the appellants company.  A
    few minutes later Sahota told the appellant when it comes from England, I
    transfer it here to which the appellant replied take it under R & S name,
    dont worry.  A few days later, on
    October 18,
Sahota
was in communication with the
    appellant and told him that he was going to sell his house.  The appellant told him not to and also said,
    we have to take care of this problem  these guys are crazy and problem is
    that if it doesnt get resolved, it has to be resolved somehow.  On October 24, Sahota told another of the
    conspirators that the appellant had advised him not pay it.

[5]

Counsel for the Minister of Justice puts the case for
    extradition on two bases.  First, that
    the appellants prior involvement in the conspiracy to import can be inferred
    from the communications that took place immediately after the loss of the
    shipment.  Secondly, that even if the
    appellant only became involved after the shipment was seized his attempts to
    find funding bring him within this courts decision in
R. v. Neal
(2009)
,
263
    O.A.C. 201 (C.A.).

[6]

The appellant submits that these communications do not
    show that the appellant was a member of the conspiracy to import the cocaine
    into Canada.  At most the communications
    show that the appellant was contacted after the object of the conspiracy had
    been frustrated.  His exact involvement
    is uncertain; there is no evidence the appellant ever attended any meetings
    with the other conspirators or that he provided funds for the importing or to
    cover the loss.  He also submits that the
    extradition judge only committed on the basis of
R. v. Neal
, which is distinguishable, and that it would be unfair
    to uphold the committal on the basis of the theory that the appellant was
    involved in the conspiracy before seizure of the shipment.

[7]

We need not decide whether the appellants committal
    and extradition can be supported by the ratio in
Neal
.  In our view, there was
    sufficient evidence from which it could be inferred that the appellant had been
    involved in the conspiracy to import before the shipment was seized.  It would be a remarkable coincidence that
    immediately after the shipment went missing the conspirators would contact a
    stranger to the enterprise to attend a meeting to discuss the loss.  The appellant apparently had no difficulty
    understanding the purpose of the meeting [even though the purpose was referred
    to in code: a small problem with 50 shirts] and was immediately available to
    attend it.  A reasonable inference from
    the conversations involving the appellant when placed in context is that the
    appellant was involved in the importing scheme.  Another inference is perhaps available: that the conspirators decided to
    involve the appellant for the first time after the shipment was seized.  It is not for this court or the extradition
    judge to weigh competing reasonable inferences:  see
United States of America v.
    Anderson
(2007), 85 O.R. (3d) 380 (C.A.), at
para
.
    28 and
R. v. Arcuri
, [2001] 2 S.C.R.
    828, at paras. 29 and 30.

[8]

This courts jurisdiction on an appeal from committal
    is set out in s. 53 of the
Extradition
    Act
.  We can set aside the committal
    if the order was unreasonable or on the ground of a wrong decision on a
    question of law.  For the reasons set out
    above, the committal was not unreasonable.  Even if the extradition judge erred in relying upon
Neal
, a matter we need not decide, the appeal may still be
    dismissed if the court is of the opinion that no substantial wrong or
    miscarriage of justice has occurred.  Crown counsel argued before the extradition judge that the appellant
    could be committed for extradition on the basis of
Neal
or alternatively because the appellants prior involvement in
    the conspiracy could be inferred from the post-seizure conversations.  It would not be unfair to uphold the
    committal on this alternative basis.  No
    substantial wrong or miscarriage of justice has occurred given the sufficiency
    of the evidence.

[9]

The application for judicial review of the Ministers
    decision is similarly dismissed. As the Minister pointed out, in effect the
    applicant sought to have the Minister review the decision of the extradition
    judge concerning the sufficiency of the evidence, a matter reserved to this
    court.

[10]

Accordingly, the appeal from committal is dismissed and
    the application for judicial review is dismissed.

Signed: M. Rosenberg J.A.

S.
    E. Lang J.A.

David
    Watt J.A.


