



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



United States of America v. Lopez-Turatiz,









2014 BCCA 39




Date: 20140131

Docket:  CA039463

Between:

Attorney General
of Canada

on behalf of the
United States of America

Respondent

(Applicant/Requesting State)

And

Leandro Lopez-Turatiz

a.k.a. Chino

Appellant

(Respondent/Person
Sought)

And Between:

Leandro Lopez-Turatiz

a.k.a. Chino

Applicant



And

Minister of
Justice

Respondent






Before:



The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Tysoe




On appeal from:  An
order of the Supreme Court of British Columbia, dated October 7, 2011 (
U.S.A.
v. Lopez-Turatiz
, 2011 BCSC 1336,
Vancouver Docket No. 25414), and

On
judicial review from:  An order of surrender issued by the Minister of Justice
on April 3, 2012




Counsel for the Appellant/Applicant:



M.B. Rankin





Counsel for the Respondents:



S.M. Repas





Place and Date of Hearing:



Vancouver, British
  Columbia

October 21, 2013





Place and Date of Judgment:



Vancouver, British Columbia

January 31, 2014









Written Reasons by:





The Honourable Mr. Justice Frankel





Concurred in by:





The Honourable Mr. Justice Lowry





The Honourable Mr. Justice Tysoe








Summary:

The United States sought
L.-T.s extradition on a charge of premeditated first degree murder.  The
prosecution is based on circumstantial evidence.  Following L.-T.s committal
by an extradition judge, the Minister of Justice ordered his surrender on that
charge.  L.-T. appealed the committal and sought judicial review of the
Ministers decision.  Held:  Appeal and application for judicial review
dismissed.

The extradition judge did
not err in refusing to order disclosure with respect to the forensic evidence
contained in the record of the case (i.e., the collection and analysis of blood
samples and fingerprint examination).  L.-T. was unable to point to anything
that could undermine the accuracy and reliability of that evidence.

The Minister did not err in
declining to weigh the strengths and weaknesses of the evidence.

The possibility that the
prosecutor might seek to amend the charge to include an allegation of felony
murder was so remote that it was not a basis for refusing surrender.  It was,
accordingly, unnecessary to decide whether the fact that the constructive
murder provisions of the Criminal Code, the Canadian equivalent of felony
murder, have been held unconstitutional, precludes surrender on a felony murder
charge.  On the arguments presented it was both unnecessary and impossible to
decide whether the rule of specialty would preclude the prosecutor from seeking
to amend without Canadas consent.

Reasons for Judgment of the Honourable
Mr. Justice Frankel:

INTRODUCTION

[1]

The United States of America seeks to extradite Leandro Lopez-Turatiz to
stand trial in the State of Nevada on a criminal complaint charging him with premeditated
first-degree murder.  After Mr. Lopez was committed for extradition on the
Canadian offence of Murder, the Minister of Justice ordered his surrender on
the charge set out in the complaint.

[2]

Pursuant to s. 49 of the
Extradition Act
, S.C. 1999,
c. 18, Mr. Lopez appeals from the order of committal on the basis
that the extradition judge erred in dismissing his application for additional
disclosure relating to forensic evidence tendered at the extradition hearing. 
In addition, he applies, pursuant to s. 57 of the
Extradition Act
, for
judicial review of the order of surrender.  His primary ground on the review is
that the Minister erred by surrendering him for trial in a jurisdiction where a
person can be convicted of murder under the felony murder rule, a rule which
has been held unconstitutional in Canada.  Mr. Lopez further says the
Minister erred by declining to consider the weakness of the prosecutions case.

[3]

For the reasons that follow, I would dismiss both the appeal and the
application for judicial review.

THE
PROSECUTIONS CASE

[4]

The State of Nevada alleges Mr. Lopez shot and killed Francisco
Lambert-Cordero at a residence in Las Vegas and then moved Mr. Lamberts
body to another location. The evidence against Mr. Lopez is circumstantial. 
There are no witnesses who can give evidence directly implicating him in the
shooting.

[5]

The record of the case (ROC) and supplemental record of the case (SROC)
filed by the Attorney General of Canada at the extradition hearing set out, in
summary form, the evidence available to the Nevada prosecutor.  That evidence
discloses the following:

(a)      Mr. Lopez and Mr. Lambert
were friends who arrived in Florida from Cuba in January 2007.  Mr. Lambert
remained in the Miami area and Mr. Lopez moved to Las Vegas;

(b)      In December 2008, Mr. Lopez
travelled to Miami to meet Leonardo Torres-Machado along with Mr. Lambert. 
Mr. Lopez and Mr. Lambert used Mr. Torres to purchase a white,
2001 four-door Mercedes-Benz, which the three of them used to drive to Las
Vegas;

(c)      Mr. Torres rented a
residence on Collingwood Street in Las Vegas for Mr. Lopez and Mr. Lambert
because neither of them had proper identification.  Mr. Torres never
returned to the residence after that;

(d)      Mr. Torres
registered the Mercedes-Benz in his own name in Nevada, using the Collingwood
Street address;

(e)      The Mercedes-Benz was the only
vehicle the landlord of the Collingwood Street residence saw being driven by Mr. Lopez,
Mr. Lambert, and Mr. Torres;

(f)       On May 19, 2009, police
officers who responded to a report of a fire in the Las Vegas Valley found burnt
bed sheets with blood stains.  The person who reported the fire had seen a white
vehicle leaving the area;

(g)      On May 21, 2009, a civilian
discovered Mr. Lamberts body in a remote area near Las Vegas covered with
pine boughs.  That area is some distance from where the burning sheets were
found.  Based on the state of the body, detectives with the Las Vegas
Metropolitan Police Department (the LVMPD) who attended at the scene
estimated it had been placed there within the preceding 48 hours;

(h)      An autopsy conducted by a
forensic pathologist determined that Mr. Lambert died from a bullet wound
to the back of his head;

(i)       On May 21, 2009, Mr. Lopez
called Mr. Torres and told him to discontinue the utilities, electricity
and gas services at the Collingwood Street residence because Mr. Lambert
had returned to Florida;

(j)       Mr. Lopez introduced
Yurisleivy Morales to the landlord of the Collingwood Street residence as the
person who would be taking over the lease as of May 23, 2009;

(k)      On May 27, 2009, Mr. Lopez
went to Mr. Torress residence wanting to sell him the Mercedes-Benz.  Mr. Lopez
again told Mr. Torres that Mr. Lambert had returned to Florida;

(l)       On May 29, 2009, LVMPD
detectives executed a search warrant at the Collingwood Street residence, where
they found:

(i)       Mr. Morales;

(ii)      a dirty and unkempt premises;

(iii)      a
marihuana grow-operation;

(iv)     in the dining room area which
appeared to have been recently cleaned, blood spatter (i.e., a pattern
consistent with the movement of a body or object shedding blood); and

(v)      a latent handprint, in blood, on
a garage wall;

(m)     A LVMPD crime-scene investigator
collected swabs of blood from the walls, baseboards, staircase carpet and
handprint at the Collingwood Street residence;

(n)      A LVMPD forensic scientist determined
that the blood from the residence and the burnt sheets matched that taken from Mr. Lamberts
body at the autopsy;

(o)      A LVMPD latent-print examiner
determined that prints in the blood on the garage wall matched those of Mr. Lopez;
and

(p)      On
July 13, 2009, LVMPD detectives located the Mercedes-Benz.  In the trunk they
found two suitcases which contained identification and clothing belonging to Mr. Lopez
and Mr. Lambert.

COMMITTAL APPEAL

Reasons for Committal

(2011 BCSC 1336)

[6]

The extradition hearing took place in the Supreme Court of British
Columbia before Associate Chief Justice MacKenzie (as she then was).  She
committed Mr. Lopez for extradition on October 7, 2011.

[7]

In opposing committal, Mr. Lopez took the position that the
evidence referred to above was not sufficient to warrant his committal for the
Canadian offence of murder (
Criminal Code
, R.S.C. 1985, c. C-46,
s. 229).  More particularly, he submitted that it was lacking with respect
to the issues of identification and
mens rea
.  As Mr. Lopez no
longer advances those arguments, I will only refer to a few passages of the
extradition judges reasons.

[8]

With respect to identification, the judge stated:

[47]      The evidence permits the following reasonable
inferences:  Mr. Lambert was killed at the Residence; Mr. Lopez and
very few others had ties to the Residence; Mr. Lopez was present at the
Residence at the time, or close to the time of Mr. Lamberts death; Mr. Lopez
had contact with a significant amount of Mr. Lamberts blood; and that Mr. Lopez
controlled access to the vehicle used to transport Mr. Lamberts body to
the remote location.

[48]      This hearing is not a
trial where guilt must be proved beyond a reasonable doubt; instead it is a
proceeding which requires the application of the s. 29(1)(a
) prima facie
test (as amplified by [
United States of America v. Ferras
, 2006 SCC 33,
[2006] 2 S.C.R. 77) to the summary of the evidence.  All the evidence discussed
above properly forms the basis for reasonable inferences upon which a
reasonable, properly instructed jury could find that Mr. Lopez was the
offender.

[9]

With respect to
mens rea
, she stated:

[49]      Again, based on the evidence
summarized in the Records, Mr. Lopezs assertion that the Requesting
States evidence consists of mere conjecture and speculation is without merit. 
This was a homicide in which a jury could infer that the offender had the
intent to kill Mr. Lambert.  Mr. Lambert was shot in the back of the
head; there could be little suggestion of accident, or self-defence.  The
offender then tried to conceal his involvement in the homicide in the manner
described above.

The evidence of the post-offence
conduct is circumstantial evidence of guilt of manslaughter but is not evidence
on which a jury could infer
the
mens rea
for murder.  However, the nature of the wound (gunshot) and its location
(through
the back of the head) is evidence from which the
specific intent required for murder could be inferred.

[50]      Finally, a strong inference arises
that Mr. Lopez knew of Mr. Lamberts death because his handprint
depicted in Mr. Lamberts blood was on the garage wall of the Residence. 
Also, more than a week after Mr. Lamberts death, Mr. Lopez told Mr. Torres
that Mr. Lambert had left for Miami.  In all the circumstances, it is
reasonable to infer therefore that he did so because he killed Mr. Lambert.

. . .

[52]      Although
other inferences may be open on the evidence, it is reasonable to infer that Mr. Lopez
shot Mr. Lambert in the back of the head, tried to clean up blood from the
crime scene, transported the body away in the white Mercedes and dumped it in a
remote location.  Furthermore, it is reasonable to infer that he lied to Mr. Torres
about the whereabouts of Mr. Lambert in order to hide his role in Mr. Lambert's
homicide.

The Disclosure
Application

[10]

During the extradition hearing Mr. Lopez sought an order for
disclosure with respect to the forensic evidence relating to the fingerprints
and blood found on the garage wall.  That evidence was set out as follows in the
ROC:

7.         Crime Scene Investigator Sheree Norman will
testify she processed the scene at [address omitted] Collingwood Street and
collected swabs of apparent blood from walls, baseboards, staircase carpet, and
a hand print in apparent blood on the garage wall.

. . .

10.       Kristina Paulette, LVMPD Forensic Scientist II, will
testify that DNA comparison analysis will identify the hand print in apparent
blood, found at [address omitted] Collingwood Street and recovered from the
garage wall, as the blood of Lambert-Cordero.

11.       Marnie Carter, LVMPD
Latent Print Examiner, will testify that the latent prints in Lambert-Carderos
blood recovered from the garage wall match the exemplar prints of Lopez-Turatiz
obtained from Canadian authorities.

[11]

Additional information was provided in the SROC:

8.         With respect to paragraph 10 of
the original Record, the following information is provided:  the detectives
will testify that the blood recovered from [address omitted] Collingwood Street
was that of Lambert-Cordero through a DNA analysis which compared blood recovered
from the residence with Lambert-Corderos blood collected at autopsy.  Kristina
Paulette will testify that she is a recognized expert as a forensic scientist
with the Las Vegas Metropolitan Police department forensic laboratory, having
testified as such in Nevada and other state courts.  Ms. Paulette will
testify that she conducted the analysis of the victims blood from the autopsy
and matched it to the blood recovered at the residence.

9.         With
respect to paragraph 11 of the original Record, the following information is
provided:  Officer Clarence Lo, with the Canadian Border Services Agency, is
expected to testify that he arranged to have a full set of prints collected of
Lopez-Turatiz once he was detained by CBSA.  Officer Lo transmitted the
collected prints, which included palm prints, to Detective Hanna
electronically.  The detective will testify that he provided the prints to
Marnie Carter, a recognized expert in latent print examinations, who conducted
the fingerprint analysis.

[12]

In his written submissions on the application, Mr. Lopez described what
he was seeking as follows:

(1)        Notes of Sheree Norman, including her C.V., who
processed the scene (undated), and a copy of the lift of a handprint in
apparent blood on the garage wall.  Described in number 7 from the certificate
of Record of the Case for the Prosecution;

(2)        Reports and Notes of Kristina Paulette, LVMPD
Forensic Scientist II, including her C.V., who will testify on DNA and will
identify the hand print in apparent blood on the garage wall.  Described in
number 10 from the certificate of Record of the Case for the Prosecution; and

(3)        Report and Notes of
Marnie Carter, LVMPD Latent Print Examiner, including her C.V., who will
testify latent prints and apparent blood on the garage wall match the
exemplar prints of Lopez-Turatiz obtained from Canadian sources.  Described in
number 11 certificate [
sic
] of the Record of the Case for the
Prosecution.

[13]

In dismissing the application, the extradition judge said (
U.S.A. v.
Lopez-Turatiz
(September 6, 2011), Vancouver 25414 (B.C.S.C.)):

[23]      Mr. Lopez only argues that
the disclosure requested is relevant to whether the fingerprint and DNA
evidence, as summarized in the ROC and SROC, is reliable
.

He says
that the
disclosure is
necessary
to challenge the reliability
of that forensic evidence.

[24]      In my view, Mr. Lopezs
argument overlooks the effect of the certification of the evidence as
summarized in the ROC and SROC. The certification creates a presumption of
reliability and availability of that evidence.  Mr. Lopez has neither
demonstrated any apparent defect in the ROC or SROC through his submissions,
nor adduced any evidence for an air of reality to his assertion that the
certified evidence is manifestly unreliable or unavailable.

. . .

[27]      There is
no merit to
Mr.
Lopez's application for disclosure that
goes
beyond the certified evidence because he has not adduced evidence
or advanced argument to rebut the presumptions of reliability and availability
arising from certification of the Records of the Case.

[28]      Mr. Lopez's application
amounts to an attempt to garner evidence to challenge the ultimate reliability
of the forensic evidence at issue as discussed at para. 58 of [
United
States v. Rosenau
, 2010 BCCA 461, 262 C.C.C. (3d) 515, leave to appeal
refd [2011] 1 S.C.R. x].

[29]      This
request is a classic fishing expedition to attack presumptively reliable
evidence and therefore is beyond the scope of an extradition hearing which is
limited to determining threshold reliability of evidence as a requirement of
s. 29(1) of the
Extradition
Act
.

Appeal
from the Refusal to Order Disclosure

[14]

Mr. Lopez did not address the committal appeal in oral argument; he
relied solely on his factum.

[15]

Mr. Lopez submits the extradition judge applied too stringent a test. 
He says given the importance of the forensic evidence the judge ought to have
given him more latitude in obtaining disclosure.  While acknowledging that it
falls to him to demonstrate an air of reality supporting the need for the requested
information and material, Mr. Lopez, citing
United States of America v.
Ferras
, 2006 SCC 33, [2006] 2 S.C.R. 77, says the application of that test
must reflect his right to probe the reliability and availability of crucial
evidence.

[16]

The difficulty with this argument is that it was rejected by this Court
in
United States of America v. Rosenau
, 2010 BCCA 461, 262 C.C.C. (3d)
515, leave to appeal refd [2011] 1 S.C.R. x, a case not mentioned in Mr. Lopezs
factum.  In
Rosenau
, Madam Justice Smith undertook an extensive review
of the law relating to disclosure in the extradition context and considered
whether
Ferras
which deals with the limited scope an extradition judge
has to weigh evidencehad expanded the right to disclosure.  She concluded
Ferras
had not done so:  para. 53.

[17]

In
Rosenau
the only evidence identifying Mr. Rosenau as a
participant in drug-related offences came from an accomplice, Kip John
Whelpley.  The SROC in that case contained a summary of Mr. Whelpleys
evidence.  At the extradition hearing, Mr. Rosenau unsuccessfully sought
an order for disclosure of:  (a) copies of Mr. Whelpleys statements
to the American authorities; (b) his plea agreement with American
authorities; (c) the indictment to which he had pleaded guilty; and
(d) his criminal record.  Mr. Rosenau was committed and the dismissal
of the disclosure application was his principal ground of appeal.  In
dismissing that appeal, Smith J.A. held the extradition judge had not erred. 
In part, she stated:

[58]

In
this case, the disclosure requested was made for the sole purpose of attempting
to challenge the direct evidence of Mr. Whelpley.
His evidence was
certified in the SROC and there was no evidence adduced that was able to
demonstrate that his evidence was manifestly unreliable.
The appellants
disclosure application was effectively an attempt to garner evidence with which
to challenge the credibility of Mr. Whelpley, an issue which goes to the
ultimate reliability of Mr. Whelpleys evidence.

[Emphasis added.]

[18]

In the present case, the ROC and SROC set out in summary form the tasks and
tests performed by Ms. Norman (the Crime Scene Investigator), Ms. Paulette
(the Forensic Scientist II), and Ms. Carter (the Latent Print
Examiner).  That these persons
prima facie
have the expertise necessary
to properly carry out their duties is evinced by their respective titles. In
addition, both Ms. Paulette and Ms. Carter are referred to in the
SROC as recognized expert[s] in their fields.  Mr. Lopez has not pointed
to anything that could undermine the accuracy or reliability of the evidence these
witnesses are said to be able to give.

[19]

I would not accede to this ground.

JUDICIAL REVIEW APPLICATION

The Offence for which
Surrender was Ordered

[20]

The order of surrender signed by the Minister, the Honourable Rob
Nicholson, refers to the criminal complaint charging Mr. Lopez with murder
in Nevada.  That complaint reads:

The Defendant above named having
committed the crime of MURDER WITH THE USE OF A DEADLY WEAPON (Felony  NRS
200.010, 200.030, 193.165), in the manner following, to-wit:  That the said
Defendant, on or between May 18, 2009 and May 21, 2009, at and within the
County of Clark, State of Nevada, did then and there wilfully, feloniously,
without authority of law, and with premeditation and deliberation, and with malice
aforethought, kill FRANCISO LAMBERT-CORDERO, a human being, by shooting at and
into the body of the said FRANCISO LAMBERT-CORDERO, with a deadly weapon,
to-wit:  a firearm.

Submissions
in Opposition to Surrender and the Ministers Decision

[21]

Following surrender, Mr. Lopezs counsel wrote to the Minister
advancing several arguments in opposition to surrender.  I need discuss only those
relevant to this application for judicial review.  However, I note the Minister
has received assurance from the United States that the death penalty will not
be sought or imposed should Mr. Lopez be surrendered.

[22]

Mr. Lopezs counsel submitted that the weakness of the committal
evidence weighed against surrender.  He referred to the ROC and SROC as outlining
a highly circumstantial case and urged the Minister to consider the
considerable weaknesses in the case in assessing whether extradition is just in
all the circumstances.

[23]

The Minister responded to that submission in a letter dated April 3,
2012, setting out his reasons for signing the order of surrender that day:

You submit that the Record of the Case and the Supplemental
Record of the Case outline a highly circumstantial case linking Mr. Lopez-Turatiz
to the murder and as such, I should consider the weakness of the United [Statess]
case when assessing whether to surrender is just in all of the circumstances of
this case.

You are effectively asking me to revisit the decision of the
extradition judge in ordering Mr. Lopez-Turatizs committal.  It is not my
role to do so.

The judicial phase of the extradition process is separate and
distinct from my responsibilities in deciding whether to surrender a person who
has been committed for extradition.

The extradition judge determined that there was sufficient
evidence upon which to order Mr. Lopez-Turatizs committal.  In her
reasons for judgment, the extradition judge specifically addressed the
circumstantial nature of the evidence against Mr. Lopez-Turatiz and
concluded that the evidence was sufficient to justify his committal.

I must assess Mr. Lopez-Turatizs case from the
perspective that the

committal order was
properly issued.  There is nothing in the Act, the Treaty, or elsewhere that
allows me to review this decision.  It is the authority of the appellate courts
to do so.  Indeed, Mr. Lopez-Turatiz has appealed the decision of the
extradition judge based on,
inter alia
, the judges assessment of the
evidence contained in the Record of the Case and Supplemental Record of the
Case.

It
is also beyond my function to review the sufficiency of the American evidence
in considering whether surrender would be justified.
To embark on such
an assessment would require me to assume the role of trier of fact.  Such an
approach would be inconsistent with the aim and purpose of extradition.  The
trier of fact in the United States is best placed to consider the sufficiency
of the evidence at Mr. Lopez-Turatizs trial.

[24]

After the order of surrender was signed, Mr. Lopez retained new
counsel who made further submissions to the Minister.  Counsel contended that it
would be unjust and oppressive, and contrary to s. 7 of the
Canadian
Charter of Rights and Freedoms
, Part I of the
Constitution Act, 1982
,
being Schedule B to the
Canada Act 1982
(U.K.), 1982, c. 11, to
surrender Mr. Lopez on the charge of premeditated murder because of the
potential that the Nevada prosecutor might seek to support a conviction for
murder on what in the United States is known as the felony murder rule.  Mr. Lopezs
counsel asked the Minister to seek assurances from the United States that the
Nevada prosecutor would not rely on the felony murder rule.

[25]

Under the felony murder rule an accused can be convicted of murder for a
killing that occurred in the course of committing or attempting to commit
certain other crimes, even though he or she lacked a subjective intent to kill. 
In Canada, the equivalent provisions of the
Criminal Code
, which
provided for what was known as constructive murder, were declared inoperative
by the Supreme Court of Canada on the basis they infringed the principles of
fundamental justice guaranteed by s. 7 of the
Charter
:
R. v.
Vaillancourt
, [1987] 2 S.C.R. 636;
R. v. Martineau
, [1990] 2 S.C.R.
633.

[26]

Mr. Lopezs counsel provided the Minister with a detailed legal
opinion prepared by Guyora Binder, a criminal law professor at the State
University of New York Buffalo Law School, with respect to the felony murder
rule in Nevada.  That opinion contains the following summary:

1.         Felony
murder liability is murder liability for killing in the perpetration or attempt
of certain felonies, notwithstanding the lack of intent to kill.  American
felony murder rules are independent in origin and authority.  They vary in
operation and scope among jurisdictions, but most felony murder rules condition
liability on objective foreseeability of death.  Participants in the felony who
do not kill are usually liable for deaths objectively foreseeable to them.

2.         Nevada
imposes felony murder liability.

3.         Nevadas
felony murder rule does not require subjective foresight of death.  It does
require whatever subjective mental state is required for the predicate felony.

4.         Nevada
Prosecutors can amend charges but only if this does not prejudice the
defendants right to be informed of charges with sufficient specificity and
sufficiently early to be able to prepare a defense to the new charges.

5.         In Nevada, a
participant in a fatal predicate felony who does not personally commit the act
causing death is probably liable for felony murder on the basis of the same
mental state required of the killer.  In most cases this will be objective
foreseeability of death.  For certain predicate felonies, objective
foreseeability of death is not required.  Objective foreseeability of death is
arguably entailed in participating in most of these felonies, but not
necessarily all.

With respect to point 4, in the
body of his opinion, Professor Binder stated:

Amendment of the information to
set forth added alternative theories of the mental state required for
first-degree murder does not charge an additional or difference offence.

[27]

In a letter dated April 18, 2013, the Minister confirmed his
decision to surrender Mr. Lopez.  While recognizing that constructive
murder is unconstitutional in Canada, the Minister stated it was neither unjust
nor oppressive to surrender a person to face prosecution in a jurisdiction
where the rules governing the trial process do not accord with our own.  The
Minister noted that as Mr. Lopez is not charged with felony murder the
concerns raised with respect to the felony murder rule did not arise on the
facts of his case.

[28]

The Minister further stated that by reason of the rule of specialty, the
State of Nevada would have to obtain Canadas consent to proceed under the
felony murder rule.  That rule provides that a person who has been extradited
may only be prosecuted for the offence(s) for which he or she was surrendered,
subject to certain exceptions.  It is embodied in Article 12 of the
Extradition Treaty Between Canada and the United States of America
, Can. T.S. 1976, No. 3, as amended
, which reads (in
part):

(1)        A person extradited under the present Treaty shall
not be detained, tried or punished in the territory of the requesting State for
an offense other than that for which extradition has been granted nor be
extradited by that State to a third State unless:



(iii)    The requested State has consented to his detention,
trial, punishment for an offense other than that for which extradition was
granted or to his extradition to a third State, provided such other offense is
covered by Article 2.

[29]

With respect to the rule of specialty, the Minister stated:

Moreover, I note
that the request for Mr. Lopez-Turatizs extradition is for the
substantive offence of murder and not for felony or constructive murder. 
As such, the concern you raise does not arise on the facts of this case.  I am
advised that the Nevada prosecutors office does not intend to prosecute Mr. Lopez-Turatiz
for felony murder.  Furthermore, I note that the Office of International
Affairs, United States Department of Justice, has advised that should Nevada
change its mind after surrender and seek to prosecute Mr. Lopez-Turatiz on
felony murder, Nevada would have to amend its
criminal
complaint
.  In order to prosecute Mr. Lopez-Turatiz
on a different offence than the one for which he was ordered surrendered, the
United States would also have to seek a waiver of specialty from Canada. 
Should such a request be made, it would be assessed at that time on the basis
of the applicable facts.

[30]

The Minister stated that assurances were
unnecessary with respect to the felony murder rule because, by reason of the
rule of specialty, [w]ithout the consent of Canada, the United States could
not prosecute Mr. Lopez-Turatiz for any offence other than the offence for
which he was surrendered.

Challenges
to the Ministers Decision

Failure to Consider the
Weakness of the Case

[31]

Mr. Lopez submits there is only a tenuous case against him and
that the Minister improperly fettered his discretion by declining to take the
overall weakness of the evidence into consideration.  He says that the
Ministers error in this case is virtually identical to the error identified
by this Court in
United States of America v. Lucero-Echegoyen
, 2013 BCCA
149, 336 B.C.A.C. 188.  I disagree.  As I will explain,
Lucero-Echegoyen
is distinguishable and does not support the broad proposition Mr. Lopez
seeks to draw from it.

[32]

Mr. Luceros extradition was sought on drug-related charges.  The ROC
stated that several witnesses would give evidence regarding the activities of a
person known to them as Elmer.  A number of them had been shown photographs
of Mr. Lucero and identified him as Elmer.  Mr. Luceros position
was that those witnesses who identified him were mistaken as he had alibi
evidence, including Canadian government records, that showed he was in Canada
during the time the offences were alleged to have been committed.

[33]

At his extradition hearing, Mr. Lucero sought to tender the alibi
evidence.  Following a
voir dire
the extradition judge ruled that
evidence inadmissible.  Mr. Lucero was committed.  In dismissing his
committal appeal, this Court held that the judge had not erred in refusing to
admit the evidence:  paras.  17  19.

[34]

Mr. Lucero provided his alibi evidence to the Minister.  In
ordering Mr. Luceros surrender, the Minister declined to consider that
evidence stating, in part, that it was beyond [his] function to review the
ultimate reliability of the evidence on which the committal was based:  para. 22. 
On judicial review, this Court set aside the order of surrender and referred
the matter back to the Minister for reconsideration.

[35]

Mr. Lopez points to the fact that the reasons given for ordering
surrender in his case (reproduced in para. 23 above) are strikingly
similar to those which the Minister gave in Mr. Luceros case.  While
this is correct, Mr. Lopezs submission ignores the context in which
Lucero-Echegoyen
was decided.

[36]

The issue in
Lucero-Echegoyen
was whether the Minister should
have taken into consideration alibi evidence that was not admissible at the
extradition hearing and which would be difficult to adduce before the American
trial court; evidence which this Court described as substantial and very
strong:  paras. 7, 25.  In finding that the evidence should have been
considered, Mr. Justice Groberman said this:

[23]

In
my view, the Minister misapprehended the scope of his role in the extradition
process.  He was not being asked to review the decision of the extradition
judge.  Rather, he was being asked to consider,
in light of evidence that
was inadmissible before the extradition judge
, whether the surrender of Mr. Lucero-Echegoyen
would be oppressive or unjust. His role was quite distinct from that of the
judge on the committal hearing.

[24]

Neither
was the Minister being asked to usurp the role of the trial court in the United
States.  The Minister was not being asked to determine guilt or innocence,
per
se
, but was being asked to evaluate whether, in the circumstances, it would
be oppressive or unjust to surrender Mr. Lucero-Echegoyen.  The apparent
strength of the alibi evidence was one factor that should have been considered
in making that evaluation.

[25]

Mr. Lucero-Echegoyen
produced very strong evidence showing he was in Canada during the period when
the requesting state alleges he was in Denver.  That evidence includes official
records of the Canadian government.
Mr. Lucero-Echegoyen might face
serious obstacles in bringing his alibi evidence before a court in Wyoming
,
given his very limited financial resources.  I note that the alibi evidence
comes from witnesses and business records located in Vancouver.  It is not
clear how Mr. Lucero-Echegoyen will go about getting that evidence before
the U.S. District Court for the District of Wyoming.



[29]

I
do not suggest that the Minister must, in every case, come to a preliminary
assessment of the strength of the requesting states case before surrendering
the individual who is sought.  Where, however, the weakness of the requesting
states case is evident and where serious hardship may face the individual if
that person is surrendered, the scope of the Ministers inquiry should not be
artificially narrowed.

[Emphasis added.]

[37]

That
Lucero-Echegoyen
does not stand for the proposition that the
Minister is under a general obligation to consider the strength of the evidence
which supports a committal is discussed in
United Kingdom of Great Britain
and Northern Ireland v. Aziz
, 2013 BCCA 414, 342 B.C.A.C. 305.

[38]

Mr. Azizs extradition was sought for an offence corresponding to
the Canadian offence of possession of stolen property (
Criminal Code
,
s. 354).  The allegation related to a large quantity of pharmaceutical
drugs.  Mr. Aziz was arrested when he attempted to sell those drugs to a
private investigator employed by the company from which they were stolen.

[39]

At the extradition hearing, Mr. Aziz sought to tender his own
affidavit and that of another person to provide his version of the events,
namely that he was an innocent broker who did not know the drugs were stolen. 
The extradition judge refused to admit the affidavits and went on to commit Mr. Aziz. 
In dismissing his committal appeal this Court held that the judge had not erred
in refusing to admit the affidavits, citing, among other cases,
Lucero-Echegoyen
:
Aziz
at paras. 35, 40.

[40]

Mr. Aziz provided the affidavits to the Minister who, in ordering
surrender, declined to consider them.  After noting that Mr. Aziz was
raising the admissibility of the affidavits as a ground on his committal
appeal, the Minister continued:

Furthermore, it is beyond my function to review the
sufficiency of the United Kingdoms evidence in considering whether surrender
would be justified.  To embark on such an assessment would require me to assume
the role of trier of fact.  Such an approach would be inconsistent with the aim
and purpose of extradition.  The extradition process is neither equipped nor
intended to determine the guilt or innocence of the person sought but rather to
ascertain whether surrender to the requesting state is justified in the
circumstances of a particular case (
Kindler v. Canada (Minister of Justice)
,
[1991] 2 S.C.R. 779;
Argentina v. Mellino
, [1987] 1 S.C.R. 536).

While
my function in deciding the issue of surrender is broader than the principles
applied at the committal stage of extradition, I am in no better position to
weigh the strengths and weaknesses of the foreign evidence against Mr. Aziz.
 In the event that Mr. Aziz is surrendered, he will have the opportunity
to present his defence and challenge the evidence against him before a trier of
fact in the United Kingdom.

[41]

In dismissing Mr. Azizs application for judicial review of the
Ministers decision, this Court held that the Ministers failure to consider
the affidavits did not amount to an undue narrowing of matters he is required
to consider.  In particular, Mr. Justice Harris, in discussing
Lucero-Echegoyen
,
stated:

[63]      [Paragraph 29] makes it clear that
Groberman J.A. was not laying down a universal rule that inadmissible
defence evidence,
or the evidence in the case generally
, must be
assessed on a preliminary basis before the Minister can conclude that it would
not be unjust to order surrender.
Rather, such an inquiry is required where
two conditions are met: first, the weakness in the requesting states evidence
must be evident; and second, surrender may face the person sought with serious
hardship.

[Emphasis added.]

[42]

Mr. Lopez is unable to satisfy either of the two conditions just
mentioned. First, in my view, the case against him, while circumstantial, is
not one I would describe as weak.  If unanswered, then a trier of fact may
well be satisfied beyond a reasonable doubt that Mr. Lopez intentionally
killed Mr. Lambert.  Second, Mr. Lopez has not advanced anything which
could support a finding that he would face serious hardship if surrendered.

[43]

For completeness, there is one further decision of this Court I wish to
mention, namely,
Canada (Minister of Justice) v. Narayan
, 2008 BCCA 280,
257 B.C.A.C. 121, leave to appeal refd [2008] 3 S.C.R. viii.

[44]

Mr. Narayans extradition was sought on drug-related charges.  In
his submissions to the Minister he argued the evidence against him was so weak
that it would be unjust and oppressive to order his surrender.  In ordering
surrender, the Minister declined to assess the cogency of the evidence.  After
noting that the issue of the sufficiency of the evidence was being raised by Mr. Narayan
on his appeal from committal, the Minister stated:

Similarly, it is not my function to engage in a separate
analysis of whether the American evidence is adequate as this would require me
to assume the role of the foreign trier of fact.  Such an approach would be
inconsistent with the aim and purpose of extradition.  The extradition process
is neither equipped, nor intended to determine the guilt or innocence of the
person sought.  Its purpose is to ascertain whether surrender to a requesting
state is appropriate in the circumstances of a particular case
.  I am not in
a position to weight the strengths and weaknesses of the foreign evidence.  The
U.S. trial courts are best placed to consider this question in the venue of Mr. Narayans
trial.

Therefore, in my view, it would not be unjust or oppressive,
or contrary to the principles of fundamental justice to surrender Mr. Narayan
to the United States, notwithstanding your concerns with the strength of the
prosecutions case.

[Emphasis added.]

[45]

In dismissing Mr. Narayans application for judicial review, this
Court held that the Minister had not erred by failing to assess the strength of
the evidence.  In doing so, Mr. Justice Low reviewed a number of
authorities, including
Germany (Federal Republic) v. Schreiber
(2006),
206 C.C.C. (3d) 339 (Ont. C.A.), leave to appeal refd [2007] 1 S.C.R. xiv,
wherein Mr. Schreiber argued that the Minister erred by refusing to
consider the credibility of the prosecutions principal witness.  In rejecting
that argument, Mr. Justice Sharpe, in a passage which Mr. Justice Low
quoted with approval, said:

[64]      To the extent that the
Extradition Act
relaxes the rules of evidence, the Act does not alter the jurisdiction,
responsibility or authority of the extradition judge or that of the Minister
with respect to the assessment of the evidence.
It is for the extradition
judge to determine whether or not there is sufficient evidence to warrant
committal.  Once that determination has been made, weighing the evidence or
assessing its reliability are matters for trial in the foreign jurisdiction. 
There [
sic
] are not matters for the Minister to address when considering
whether to surrender the appellant.
The Minister retains a residual
discretion to refuse surrender where it would be unjust or oppressive. 
However, the exercise of that discretion is accorded a high level of deference
on judicial review. In view of the substantial body of evidence led in support
of the committal, I am far from persuaded that there is any basis for this
court to interfere on this ground.

[Emphasis added.]

[46]

Mr. Justice Low went on to state:

[17]      I would not accede to the first ground [i.e., that
the Minister erred in declining to assess the strength of the committal
evidence].  The applicant submitted that in undertaking an assessment of his
interests, including his liberty interests under the
Charter
, it was
necessary for the Minister to consider the evidence involved in the case
against him.  He says that the strength or weakness of that evidence is a
factor to speak to the fairness of the applicants surrender.
However, the
case law above demonstrates that the sufficiency of evidence is properly
considered by the extradition judge, with subsequent deference to that finding
by the Minister.  Here, the Minister properly deferred to the courts
conclusion that the case against the applicant was sufficient to justify his
committal.
Although the Minister retains a residual discretion to decline
to surrender a person sought if, as stated in [
United States of America v.
Earles
, 2003 BCCA 20, 171 C.C.C. (3d) 116 (B.C.C.A.)], the reliability of
the requesting states evidence is such that to surrender that person would
shock the conscience of Canadians, this discretion is not engaged in the
circumstances of the present case, where the only issue raised is the relative
strength or weakness of evidence that has been found to be sufficient by the
extradition court.

[Emphasis added.]

[47]

For the above reasons, I would not accede to this ground.

The
Felony Murder Rule

[48]

Mr. Lopez acknowledges that currently he is charged with premeditated
first-degree murder, an offence that requires proof of subjective
mens rea
,
i.e., an intent to kill.  His arguments are based on what he submits is the
potential that if he is surrendered, then the prosecutor might seek to rely
on the felony murder rule as a means of imposing liability for first-degree
murder.  Under that rule, a person can be convicted of murder absent proof of a
subjective intent to kill.

[49]

Citing
United States v. Burns
, 2001 SCC 7 at para. 60,
[2001] 1 S.C.R. 283, Mr. Lopez says the Minister was required to consider
his surrender on the basis that there is a possibility that the prosecutor
might seek to rely on the felony murder rule.  In
Burns
, Mr. Burns
and Mr. Rafay were charged with three counts of aggravated first degree
murder.  Aggravated first degree murder is punishable either by the death
penalty or life imprisonment without possibility of parole.  The Supreme Court
of Canada held that Mr. Burns and Mr. Rafay could not be surrendered
without assurances that the death penalty would not be sought or imposed, even
though the prosecutor had yet to decide which penalty to seek.  Assurances were
required because capital punishment was one of the potential consequences of
extradition and the case did not involve exceptional circumstances that would
permit surrender without assurances.

[50]

Mr. Lopez submits that although the Nevada prosecutor has indicated
he does not intend to prosecute for felony murder, he has not unequivocally
committed to never seeking to do so.  Mr. Lopez says there is a realistic
possibility he may advance a defence at trial that would result in the prosecutor
applying to amend the charge to engage the felony murder rule.  In what he
describes as a reasonable hypothetical, Mr. Lopez says he could testify that
Mr. Torres killed Mr. Lambert in circumstances that would expose Mr. Lopez
to criminal liability for first degree murder under the rule.

[51]

Mr. Lopez takes the position that a person can never be surrendered
to stand trial for murder if there is a possibility that the prosecutor might
seek to obtain a conviction on the basis of the felony murder rule.  Based on
Professor Binders opinion, he further argues that felony murder would not be
considered a different offence and, therefore, the rule of specialty would not
operate to preclude an amendment without Canadas consent.

[52]

The Ministers position is that it is open to him to surrender a person
to be tried for felony murder.  However, he says that the issue of surrender
for felony murder does not arise in this case because:  (a) Mr. Lopez
is not charged with felony murder; (b) the Nevada prosecutor has indicated
he does not intend to prosecute Mr. Lopez for felony murder; and (c) in
any event, by reason of the rule of specialty, Mr. Lopez could not be
tried for felony murder without Canadas consent.

[53]

It is unnecessary to decide whether the Minister is precluded from ever surrendering
on a charge of felony murder.  Mr. Lopez is charged with premeditated
murder and there is no air of reality to his submission that the prosecutor might
change his position and seek to rely on the felony murder rule.  Accordingly,
there is no need for me to discuss the cases the Minister cites as support for
his position that a person can be surrendered for felony murder:
United
States of America v. Chong
(1996), 91 O.A.C. 319, leave to appeal refd [1997]
1 S.C.R. vi (
sub nom. Chung v. The Queen
);
DesFoss
és v. Canada (Minister of Justice)
(1996), 120 F.T.R. 294, appeal
dismissed (1997), 216 N.R. 152 (F.C.A.), leave to appeal refd [1997] 3 S.C.R.
viii.

[54]

Mr. Lopez relies on the statement in
Burns
(at para. 60)
that, Section 7 [of the
Charter
] is concerned not only with the act of
extraditing, but also the
potential
consequences of the act of
extradition (emphasis in original).  However, that sentence has to be read
with the immediately preceding one, in which the Court stated, This Court has
recognized from the outset that the punishment or treatment
reasonably
anticipated
in the requesting country is clearly relevant (emphasis
added).

[55]

As the Supreme Court noted in
Burns
, the crimes alleged in that
case were brutal and shocking cold blooded murder[s]:  para. 9. 
Further, s. 7 was engaged because the only possible punishments that could
be imposed on Mr. Burns and Mr. Rafay were the death penalty or life
imprisonment without possibility of parole:  para. 28.  In other words, surrender
without assurances would reasonably expose them to being tried for a capital
offence.  I note this Court has held it is open to the Minister to surrender
without formal assurances for an offence for which capital punishment could be
imposed when the requesting state has indicated it will not seek the death
penalty; in other words, when that penalty is not reasonably anticipated
: 
Gervasoni v. Canada (Minister of Justice)
(1996), 72 B.C.A.C. 141 at paras. 25
 29, leave to appeal refd [1996] 2 S.C.R. vii;
Hong Kong Special
Administrative Region of the Peoples Republic of China v. Dia
, 2006 BCCA
179 at paras. 8  14, 267 D.L.R. (4th) 49.

[56]

In the present case, it cannot be said that an application by the
prosecutor to amend the charge against Mr. Lopez to allege felony murder
is reasonably anticipated.  As the matter presently stands, there is no
evidence to support a theory of criminal liability under the felony murder
rule.  Mr. Lopezs submission that this could change if he testifies is no
more than conjecture, based on the supposition that he might recount a version
of events that would bring the rule into play.

[57]

Further, based on Professor Binders opinion, it appears doubtful that
an application to invoke the felony murder rule on the basis of evidence given
by Mr. Lopez would succeed.  That opinion cites two decisions of the
Supreme Court of Nevada in which it was held that the prosecution should not
have been allowed to invoke the rule at the eleventh hour.  In
Alford v.
State
, 906 P. 2d 714 (Nev., 1995), there was no mention of felony
murder in the indictment, but the trial judge, at the request of the
prosecutor, improperly gave the jury a felony murder instruction.  In
Jennings
v. State
, 998 P. 2d 557 (Nev., 2000), Professor Binder describes the impermissible
amendment to the indictment as having been made,

mid-trial, after the defendant
testified that he had summoned the victim to approach him by motioning with a
gun.  The State amended its information to add a felony-murder theory alleging
Jennings kidnapped the victim before shooting him.

[58]

The last matter I wish to mention is the rule of specialty.  As indicated
above, Mr. Lopez and the Minister disagree as to whether that rule would
preclude Mr. Lopez being tried for felony murder without Canadas consent. 
It is both unnecessary and impossible to resolve this question.  It is
unnecessary, because the possibility of the present charge being amended to
include an allegation of felony murder is remote.  It is impossible, because
the matter was not fully argued.  Professor Binder was not asked for an opinion
on this rule and we have not received submissions on whether the United States
or the State of Nevada hold the same view of it as does the Minister.  There is
also the question of whether Mr. Lopez would have standing before the
Nevada court to raise the rule of specialty in opposition to an application by
the prosecutor to amend the charge.

[59]

Notwithstanding the possibility of the prosecutor seeking to rely on the
felony murder rule is remote, I would expect that on Mr. Lopezs
surrender, the current Minister, the Honourable Peter MacKay, will inform the
United States of Canadas position on the rule of specialty, as expressed by
Minister Nicholson.

DISPOSITION

[60]

I would dismiss both the appeal and the application for judicial review.

The
Honourable Mr. Justice Frankel

I AGREE:

The Honourable Mr. Justice
Lowry

I AGREE:

The Honourable Mr. Justice
Tysoe


