



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



U.S.A. v. Kerfoot,









2011 BCCA 33




Date: 20110121

Docket:
CA037346

In
the Matter of the Extradition Act, R.S.C. 1999, c. 18

Between:

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

Respondent

And

Kevin Donald
Kerfoot

Appellant




Before:



The Honourable Mr. Justice Hall





The Honourable Madam Justice Levine





The Honourable Mr. Justice Tysoe




On appeal from: Supreme
Court of British Columbia, August 4, 2009
(
U.S.A. v. Kerfoot
, Vancouver Registry 24183)

Oral Reasons for Judgment




Counsel for the Appellant (appearing via teleconfernece):



K.I. Tousaw





Counsel for the Respondent:



K.L. Swift





Place and Date of Hearing:



Vancouver, British
  Columbia

January 20, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 21, 2011








[1]

HALL J.A.
: This case involves an appeal from a committal order of
Ker J. dated August 4, 2009 and an application for review of an order of
the Minister surrendering the fugitive Mr. Kerfoot, to the United States
on charges of conspiracy and trafficking in cocaine and a derivative of
methamphetamine in Washington State.

[2]

Counsel for the requesting state has placed before us a second
Supplemental Record of Case for Prosecution
in view of a
number of factual developments in this case since it was before Ker J. These
include the death of an alleged co-conspirator
Canupp
,
an American. As a result of his death, it appears from the newly filed material
that very nearly all of the evidence that it was anticipated could be adduced
at any trial in the United States from this individual is now unavailable. Another
alleged co-conspirator,
Purdom
, a Canadian who was
formerly incarcerated in a U.S. prison has now taken up residence in British
Columbia and has purported in affidavit material to resile from statements
given earlier to U.S. authorities. In these statements, he implicated
Mr. Kerfoot in the drug transactions that underpin these extradition
proceedings. It is submitted by counsel for Mr. Kerfoot that the present
location of this witness and his stance adverse to the U.S. prosecution
authorities may place in some doubt the availability of his evidence. Counsel
for the United States submits that the question of the weight of any evidence
of this witness is for a trier of fact in the United States and that as stated
in the Supplemental Record of Case, this evidence remains available.

[3]

There is a reference in the amended case record to telephone
conversations allegedly held between the fugitive and
Canupp
at the time of the alleged transaction of drug trafficking. It appears that
U.S. law enforcement personnel may have overheard at least a portion of such
conversations. Having regard to the state of the record, it is not at present
possible to precisely determine the cogency of such evidence. Counsel for the
United States also adverts to certain circumstantial evidence possibly
supportive of an inference of participation of the fugitive in the drug
transaction, namely a meeting of him with the two persons arrested in the United
States with the drugs. Also present at this meeting was a man called Long who
apparently furnished to the fugitive a phone said to be connected to the drug
transaction. This meeting occurred at the Peace Arch border at a time shortly
before the transaction in Washington State.

[4]

The fugitive through counsel seeks to adduce fresh evidence and suggests
that developments in factual matters after the time of the hearing before
Ker J. should result in a result different from her ruling on disclosure
of additional material by U.S. authorities as well as her ruling declining to
accede to an abuse of process argument.

[5]

The fugitive also seeks to adduce as fresh evidence the opinion of a
British Columbia lawyer, Mr. Botting, touching on the existence of valid
extradition arrangements between Canada and the requesting state.

[6]

Counsel for the requesting state asks this Court to itself consider the
amended
Record of Case for Prosecution
to determine
that presently available material should be found sufficient to sustain the
order of Ker J. directing the committal of the fugitive. Reliance is
placed upon previous cases in this Court, of which
United States v. Costanzo
,
2009 BCCA 120, 243 C.C.C. (3d) 242, is representative where such a course was
adopted and approved by this Court. Counsel for the United States, the
requesting state, also submits that this Court ought not to interfere with the
order of surrender made by the Minister. Counsel also opposes the admission of
certain of the fresh evidence sought to be tendered on behalf of the fugitive.

[7]

There are applications for admission of fresh evidence. We made orders
yesterday marking as Exhibits certain material that was uncontested. Concerning
certain material that was not agreed, we reserved and had some items marked for
identification only.

[8]

I would not receive the Scales affidavit. It is of perhaps rather
doubtful relevance in view of the present state of the evidentiary record and
it is clearly hearsay.

[9]

The United States objects to the Botting material sought to be filed on
the review application. I consider for the reasons adverted to by counsel for
the respondent that there are formidable issues that may prove a bar to the
admissibility of this material. However, in view of our decision on the
committal appeal, I need not reach any concluded decision on this question of
admissibility.

[10]

While it is permissible on the authorities for this Court to receive
supplemental material and rule on the sufficiency of such for the purposes of
committal, I am of the view that in the quite unusual circumstances of this
case, that would not be a fair course to adopt. The case as disclosed in the
Second Supplemental Record of Case discloses very much altered circumstances
from the case that was before Ker J. Her order was certainly supportable
on the then extant material before her.

[11]

However, substantial portions of the case probative of the involvement
of the fugitive sought by the requesting state for trafficking in drugs are now
either unavailable or in a significantly altered condition. This was a case
heavily dependent on incriminating evidence expected to emanate from two
co-conspirators arrested in Washington State, Canupp and Purdom. I have
adverted above to the present situation as it relates to the evidence of these
parties.

[12]

As the Second Supplemental Record of Case stands, it would in my view be
inappropriate for this Court to enter upon a consideration of factual matters
and the conduct of the limited weighing of evidence mandated by previous
authority. That will often be possible at the appellate level but there may
arise cases, such as the present one, where the evidentiary landscape has so
dramatically altered that such a course would not be a prudent exercise of
discretion. It must always be borne in mind that a decision of this Court is
only appealable to the Supreme Court of Canada, often a formidable task. In my
opinion, the only appropriate disposition of this case is to remand
consideration of the revised case to a court of first instance for a new
hearing. It can then be considered by such tribunal whether a plausible case
exists  see
United States of America v. Ferras,
2006 SCC 33, [2006] 2
S.C.R. 77. Since there is to be a new hearing, I deem it not necessary to
express any views upon issues such as additional disclosure or arguments
addressing possible abuse of process. I do venture to express the view that I
see nothing to disagree with in the rulings on these subjects made by
Ker J. on the state of the record before her. On any new hearing, it will
be for counsel to determine what arguments to advance on the then state of the
record and for the judge hearing the matter anew to rule on all such issues as
may arise. By this methodology, a proper record may be established for further
review on any future appeal or appeals. I would allow the appeal from the order
of committal and order a new hearing before a judge of the Supreme Court of
British Columbia.

[13]

Because of this disposition of the appeal from committal, it follows
that the order of the Minister for surrender founded on the committal order
cannot be sustained. Therefore, the review application must succeed for that
reason and the surrender order of the Minister is set aside.

[14]

LEVINE J.A.
: I agree.

[15]

TYSOE J.A.
: I agree.

[16]

HALL J.A.
: The judgment is rendered in the terms that I have
outlined, and the matter is remanded to the Supreme Court of British Columbia
for re-hearing.

(discussion with
counsel re. bail)

[17]

HALL J.A.
: Bail in the terms of the previous release terms will
be extended until February 25, 2011. The only additional term in the bail will
be that Mr. Kerfoot is obligated to report before the Supreme Court of British
Columbia on such date as counsel may advise. Counsel can work out the details
of the appearance and it will then be in the hands of that court to deal with
any bail matters that may then arise.

The Honourable Mr. Justice Hall


