





CITATION:
Hungary v.
Toth
, 2011 ONCA 532



DATE: 20110726



DOCKET: C52445  C53192



COURT OF APPEAL FOR ONTARIO



Laskin, Rosenberg and Karakatsanis JJ.A.



BETWEEN



The Attorney
          General of Canada on Behalf of the  Republic
          of Hungary and
          the Minister of Justice




Respondent



and



Tibor Toth



Appellant/Applicant



P. Andras Schreck and Crystal Tomusiak, for the appellant



Nancy Dennison, for the respondent



Heard:  June 7, 2011



On appeal from the Order of Committal of Justice G. E. Taylor
          of the Superior Court of Justice, dated July 21, 2010.



Karakatsanis J.A.:



[1]

The appellant is wanted in the Republic of
    Hungary to be prosecuted for fraud over $5,000. He is alleged to have engaged
    in an ongoing fraudulent scheme in which he defrauded banks of about $49,000 CAD
    by submitting false car leasing agreements with information he had access to as
    managing director of a dealership which sells and leases automobiles in
    Hungary. He is also alleged to have defrauded banks and individuals of about
    $35,800 CAD by entering into loan agreements that he did not intend to repay,
    and using collateral that he did not own. The extradition judge found that the
    evidence was sufficient to justify the appellants committal for fraud over
    $5,000.

[2]

The appellant appeals the extradition judges
    order of committal, arguing that there is no evidence in either of the Records
    of the Case that the appellant committed the alleged fraud. He has also filed
    an application for judicial review. He concedes that if the appeal against
    committal is unsuccessful, there is no basis to interfere with the Ministers Surrender
    Order.

[3]

For the reasons that follow, I am of the
    view that the available evidence certified in the Records of the Case is
    sufficient to justify the appellants committal. As a result, I would dismiss
    the appeal and deny the application for judicial review.

The extradition hearing

[4]

The evidence filed in support of the
    extradition consists of a first Record of the Case dated August 3, 2004, and a
    second Record of the Case dated October 29, 2004, as well as a Supplement dated
    January 14, 2009. The Records of the Case allege that the appellant committed
    fraud over $5,000 and summarize the evidence relating to ten different
    transactions, listed as examples.

[5]

A number of the allegations involve the
    submission of false leasing contracts to banks and the misappropriation of the
    resulting leasing fees; they allege that the appellant prepared and submitted
    the false contracts using the information of customers who had in fact
    purchased the vehicles from the car dealership that he managed. The Records of
    the Case identify the injured parties, the false leasing contracts, the vehicles,
    and the customers involved in the purchase.

[6]

The Canadian authorities requested that
    Hungary identify the evidence that establishes the appellants identity as the
    person who committed the acts summarized in the Records of the Case. The
    Supplement certified that the identification of the appellant had been
    performed by virtue of the various contracts and documents attached by the
    injured parties, as well as upon the testimony of the witnesses identified in
    the Records of the Case.

[7]

At the extradition hearing, the appellant
    conceded that the fraud involving the first allegation was sufficient to
    justify committal, based upon the customers identification of the appellant
    from a photograph. He argued that the remaining nine examples did not support a
prima facie
finding of fraud as there
    was insufficient evidence identifying the appellant as the person involved in
    the fraud.

[8]

The extradition judge reviewed the
    evidence as a whole. He noted that

The Record of the Case states ... that the
    identification of Tibor Toth will be proven by the testimony of the injured
    party in each of the examples. How the identification will be proven is not
    specified.

He further noted
    that certification raises a presumption that the evidence in the Records of the
    Case is reliable and that the appellant had presented no evidence to suggest
    that the certification of the identification evidence was incorrect.
    Accordingly, he accepted that there was evidence to establish the identity of the
    appellant in Hungary and was satisfied that there was sufficient evidence which
    would justify a committal for trial in Canada for the offence of fraud over
    $5,000.

The position of the parties

[9]

During the argument on appeal, the
    appellant accepted that the various allegations relate to one charge of fraud
    over $5,000 and that it would not be necessary to show there was sufficient
    evidence for all the examples alleged.

[10]

While the appellant does not dispute that there is
    sufficient evidence to establish fraud, his position is that there is no
    evidence to identify the appellant as the person who created the false
    documents or who entered into the fraudulent transactions with the injured
    parties. The appellant argues that he ought not to be bound by the erroneous
    concession by counsel at the hearing that there was sufficient evidence to
    establish identity on the first allegation.

[11]

The appellant submits that the extradition judge erred
    in law by conflating the concepts of reliability and sufficiency; and, in the
    absence of any indication how the documents or witnesses would establish the
    identification of the appellant as the perpetrator of the fraud, that the
    extradition judge erred by accepting the bald assertion of the requesting state
    that the various documents and witnesses would establish identification.

[12]

While the respondent agrees that conclusory or bare
    assertions are not sufficient to justify committal, the respondent argues that it
    is not necessary to provide the precise source or manner in which the evidence
    is to be proved. It is the position of the respondent that there is sufficient evidence,
    when the Records of the Case are read together, to justify committal.

Guiding legal principles

[13]

Section 29 of the
Extradition
    Act
, S.C. 1999, c. 18 requires the extradition judge to order the committal
    of a person into custody to await surrender only if there is evidence
    admissible under this Act of conduct that, had it occurred in Canada, would
    justify committal for trial in Canada on the offence.

[14]

In
United States
    of America v. Ferras
, [2006] 2 S.C.R. 77, the Supreme Court of Canada noted
    that although certification by the requesting state raises the presumption that
    the evidence in a Record of the Case is reliable and available, the appellant
    is entitled to challenge the reliability and sufficiency of that evidence, with
    evidence or by way of submissions. As the Court noted at para. 58, where a
    state makes only a bare assertion that evidence exists without providing any
    description whatsoever of its content or form  the availability of the
    evidence may be in doubt.

[15]

Similarly, if the material presented in the record of
    the case is so bereft of detail, such as the witness means of knowledge, that
    the judge cannot determine its sufficiency, the judge will have to discharge
    the person sought for prosecution:
United
    States of America v. Yang
(2001), 56 O.R. (3d) 52 (C.A.), at para. 63.

[16]

The extradition judge must look to the whole of the
    evidence presented at the extradition hearing and determine whether it
    discloses a case on which a jury could convict. The judge must be satisfied
    that the evidence adduced contains some evidence, which is available and is not
    manifestly unreliable, on every essential element of the equivalent Canadian
    offences. It does not matter if the case is weak or unlikely to result in a
    conviction, as that is a matter for the trial court in the requesting state:
    see
Ferras
at paras. 54 and 46 and
United States of America v. Thomlison
(2007), 84 O.R. (3d) 161 (C.A.), at para. 42.

The charge
    and available evidence

i.

The
    fraudulent car leasing contracts  examples 1, 2, 3, 7, 9 and 10

[17]

The Records of the Case allege that between October 25,
    1996 and February 26, 1998, the appellant engaged in an ongoing fraudulent
    scheme in which he defrauded banks by submitting false car leasing agreements
    with information he had access to as managing director of Sigma 2000, a car
    dealership selling and leasing cars in Hungary.

[18]

The first three examples in the fraud charge allege
    that the appellant received and misappropriated leasing fees by preparing and
    sending false leasing contracts to banks. The customers named in the false
    documents did not lease the cars; they purchased the cars from Sigma 2000. The
    appellant is alleged to have prepared the false leasing documents using the
    information provided by the customers in the sales contracts. The appellant was
    the managing director of Sigma 2000 and the transactions of leasing deals connected
    therewith belonged, among other, to the scope of his activities.

[19]

The Records of the Case describe the available evidence
    as the contracts and other documents submitted by the banks as well as testimony
    from the customers that the documents were false and that they did not lease, but
    rather purchased the cars from Sigma 2000. The customer from the first
    allegation identified the appellant from a photograph. The customers in both
    the first and second examples purchased their cars from Sigma 2000. Neither
    customer signed the leasing contracts.

[20]

In addition, the third example alleges that the
    customer purchased the car from the appellant; he was given the false leasing
    contract to sign at the time he signed the purchase contract; and he paid cash
    to the appellant for the purchase of the car. The evidence available for the
    third allegation includes the evidence of the customer and the documents.

[21]

Similarly, the seventh allegation is that the appellant,
    as the managing director of Sigma 2000, sold a vehicle to one customer and then
    drew up and provided the bank with a false leasing contract for the same
    vehicle, based upon information provided by another customer. As a result, the
    appellant received and misappropriated the transferred purchase price. The Records
    of the Case describe the available evidence as reports to the police, the
    contracts and other documents submitted by the banks, and the evidence from the
    customers that the documents provided to the banks were false. The actual
    purchaser of the car will establish his purchase of the car from Sigma 2000, and
    the purported purchaser, Ivady, will confirm he did not lease the car and did
    not sign the leasing contract. Ivady provided information and concluded a
    verbal agreement with the appellant prior to withdrawing from the purchase
    agreement referred to in the ninth example. Ivady was also the purported
    purchaser in the ninth and tenth allegations.

[22]

The final two allegations relate to two separate
    payments for the purchase of the same car by Ivady. The ninth example alleges
    that the appellant, as managing director of Sigma 2000, sold a car to a company
    in order to allow it to conclude a hire-purchase agreement with Ivady. After
    the bank had transferred the purchase price, Ivady withdrew from the contract. The
    appellant agreed to repay the money to the bank but stopped paying after the
    first instalment.

[23]

The tenth allegation is that Toth, as managing director
    of Sigma 2000, also submitted a false leasing agreement to another bank, indicating
    that Ivady had purchased the car (after he had withdrawn from the agreement).  After he received the purchase price sent by
    that bank, the appellant advised the bank that the customer had withdrawn from
    the agreement and promised to repay the entire fee within eight days. He did
    not do so.

[24]

The Records of the Case describe the available evidence
    for examples 7, 9 and 10 as: the contracts and other documents submitted by the
    banks, the reports to police by the banks, and evidence from Ivady that he
    concluded only a verbal agreement with Toth and withdrew from the leasing prior
    to the actual agreement in writing.

[25]

Following the Canadian request for the evidence that
    would prove the appellants identity, the Supplement to the Summary Report
    certifies that the identification of the appellant had been performed by virtue
    of the various contracts and documents attached by the injured parties as well
    as the testimony of witnesses identified in the Records of the Case.

ii.

Personal
    Loans  examples 4, 5, 6, 8 and 9

[26]

The Records of the Case allege that the appellant
    defrauded banks and individuals by entering into loan agreements that he did
    not intend to repay, and using collateral he did not own.

[27]

The fourth example relates to a loan by the appellant, concluded
    before a Notary Public, in which he provided his sons car and property not
    owned by him as collateral. The car was also offered as collateral on the loan
    in the fifth example. With respect to the fourth, the appellant made the first
    payment and then left for an unknown place.

[28]

The sixth and eighth examples relate to loans from two
    individuals. The appellant delayed the repayments and then left for an unknown
    place.

[29]

The Records of the Case indicate as available evidence
    the police reports by the injured parties; the loan and mortgage agreements; and
    the results of unsuccessful efforts to find the collateral as well as the
    appellant. For the fourth example, two witnesses will give evidence that their
    company owned the property offered as collateral and that the appellant did not
    have title to the property.

[30]

Once again, the Supplement to Summary Report certifies
    that the identification of the appellant had been performed by virtue of the
    various contracts and documents attached by the injured party as well as by the
    testimony of the witnesses  identified in
    the Records of the Case. Furthermore, the Supplement states that on the fifth
    allegation, the principal of the bank would identify the appellant as the
    person who concluded the loan agreement and offered the car as collateral (although
    there is no indication of any evidence to show the car did not belong to him
    but to his son). With respect to the unpaid loans in the sixth and eighth examples,
    the lenders will provide documents and testify.

Analysis

[31]

The appellant submits that although the customers can
    identify the appellant as the person involved in the sale of their vehicles,
    there is no indication that they have any knowledge of the appellants dealings
    with the banks. He also submits that the record is silent as to what evidence
    there is that the appellant was the person who had such dealings with the banks.
    The appellant argues that it is not clear whether the transactions were alleged
    to have taken place in person, or whether his name or signature is purported to
    be on the contract. The appellant submits that the statements that the
    documents and testimony could establish that the appellant was the person who
    participated in the fraudulent transactions are bald assertions that evidence
    of identity would be available, and are not a substitute for evidence.

[32]

However, while the Record of the Case must contain
    sufficient detail to permit the extradition judge to assess the sufficiency of
    the evidence, it need not describe the specific feature of the documents or the
    specific testimony that will support the summary of the evidence. In
United States of America v. Lee
(2009), 258
    O.A.C. 72 this Court held at
para
. 17: The substance
    of this evidence is clear, even though the Record of the Case does not name a
    particular witness who will give it. There is no doubt about the content of the
    evidence that is certified to be available for trial.  In the instant case, the Records of the Case
    provide summaries of the evidence and particulars of ten specific transactions
    of the alleged fraud and the summaries are sourced to the testimony of named
    witnesses and specific documentary evidence.

[33]

It would, of course, have been preferable if the
    Records of the Case articulated specifically how the false leasing contracts
    implicate the appellant. The Records of the Case do not specify whether the
    appellants name is on the documents, whether the documents are signed by the
    appellant or whether the appellant was the directing mind behind the company
    that submitted the documents. Furthermore, it would have been desirable to have
    a more fulsome description of the nature of the witnesses evidence that will
    identify the appellant as the person who was involved with the false leasing
    documents and the banks. However, it is clear from the response to the Canadian
    request, that the Hungarian officials did not appreciate the level of
    specificity requested in the outline of precisely how the evidence would
    establish identity. They confirmed, apparently of the view that the answer was self-evident,
    that the evidence summarised in the Records of the Case would be proven by
    virtue of the various documents and the various witnesses named. Where legal
    cultures differ, we must be careful not to expect that approaches or styles of legal
    documentation will necessarily follow familiar patterns.

[34]

The Supplement refers back to the summaries in the
    Records of the Case and certifies that identification will be proven by virtue
    of the documents and by the testimony of those witnesses. The assertion must
    therefore be considered in the context of the Records of the Case.

[35]

In the context of the summaries of the specific
    allegations, the assertion that identity would be proven by virtue of the
    documents and the testimony of the witnesses is not a bald assertion of
    identity. Nor is it bereft of detail. It is not based upon the mere demand of
    the requesting state. There can be no doubt of the alleged conduct of the
    appellant; the specific documents and witnesses are integral to the
    transactions and the misconduct alleged. Read as a whole, there is evidence
    from which the appellants identity as the perpetrator could be inferred.

[36]

With respect to frauds involving the car leasing
    documents, the inference that it was the appellant who prepared and submitted
    the false documents to the banks is supported by the evidence that the
    appellant was the directing manager of the dealership, would have had access to
    the information of its customers, and was personally involved in the some of
    the sales transactions involving the vehicles and customers named in the false
    leasing contracts. Those customers named in the false leasing contracts can
    provide evidence that they had not signed, or knowingly signed, the false
    leasing contracts, but had provided the information used in the false documents
    when purchasing their vehicles from Sigma 2000. The appellants photograph can
    be identified by one of the customers (example 1) who bought a car from Sigma
    2000, managed by the appellant. Another customer (example 3) can testify that he
    bought the car directly from the appellant, paid the appellant in cash and was asked
    to sign the false document when signing the sale documents. The evidence of one
    further customer,
Ivady
, (examples 7, 9 and 10) can
    show that he dealt directly with the appellant, concluded an oral agreement to
    purchase a vehicle, but did not sign the agreements submitted to the banks.
    Ivady can also testify that he withdrew from the purchase agreement before the
    false leasing agreement was submitted to the second bank. Finally, the
    appellant was the directing manager of Sigma 2000 and leasing contracts were
    within the scope of his activities.

[37]

It was therefore open to the extradition judge to find
    that there was sufficient evidence of the conduct of the appellant to support
    an inference that the appellant was the person who was involved in providing
    the banks with the false agreements.

[38]

In addition, the
    appellant borrowed money and provided property that was not owned by him as
    collateral for the loans. He pledged the same car to two different lenders and
    left for unknown places.

[39]

These circumstances, read as a whole, provide evidence
    sufficient to support the inference that the appellant was the perpetrator of
    the fraud.

Conclusion

[40]

For these reasons, I am unable to conclude that the
    extradition judge erred in ordering the appellants committal. I would dismiss
    the appeal and, consequently, the application for judicial review.

RELEASED:  JUL 26 2011
    (J.I.L.)

Karakatsanis J.A.

I agree. J.I. Laskin J.A.

I agree. M. Rosenberg J.A.


