



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Ebanks, 2019 ONCA 390

DATE: 20190510

DOCKET: C65656

MacPherson, Juriansz and Rouleau JJ.A.

IN THE MATTER OF
    an application under section 29 of the
Extradition Act

BETWEEN

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

Applicant (Respondent)

and

Samuel Ebanks

Respondent (Appellant)

Samuel Ebanks, self-represented

Peter Copeland, appearing as duty counsel

Christopher Bundy, for the respondent

Heard: May 7, 2018

On appeal from the committal order of Justice Mario D.
    Faieta of the Superior Court of Justice, dated June 7, 2018, and on application
    for judicial review of the surrender order of the Minister of Justice, dated August
    23, 2018.

REASONS FOR DECISION

[1]

At the conclusion of the hearing, the court advised that the appeal was
    dismissed with reasons to follow. These are the courts reasons.

[2]

The appellant is wanted for prosecution in the United States for the
    murder of his girlfriend Vickie Webb. The United States sought his extradition
    and an Authority to Proceed was issued by the Minister of Justice on June 27,
    2017 for the offence of murder. On June 7, 2018, he was ordered committed for
    extradition and on August 23, 2018, the Minister ordered his surrender to American
    authorities.

[3]

The appellant requested that the Minister of Justice obtain assurances from
    the United States that he would not be tried for the offence of first-degree
    murder and that he would not face the death penalty. According to article 12 of
    the
Treaty on Extradition Between the Government of Canada and the
    Government of the United States of America
, 3 December 1971, Can. T.S.
    1976 No. 3, the United States could seek Canadas consent to his detention,
    trial, punishment for an offence other than that for which extradition was
    granted with respect to an American offence which carries with it the
    possibility of the death penalty. On April 16, 2019, the International
    Assistance Group, on behalf of the Minister, stated that it would not grant such
    waiver of specialty request without seeking and receiving an assurance from the
    United States that the death penalty will not be sought or imposed, or, if
    imposed, will not be carried out. On the basis of this assurance, the
    appellant does not seek a review of the Ministers surrender order.

[4]

The appellant, however, appeals the judges order that he be committed
    for extradition. He argues that the extradition judge erred in finding that a
    critical statement contained in the Authority to Proceed is evidence gathered
    in the United States.

[5]

The statement is from a phone conversation the appellant had with a
    Nashville police detective. In this conversation, the appellant admitted that
    he had been in a dispute with the deceased, and that there was a knife and a
    lot of blood. He also stated that he was not sure whether his girlfriend was
    alive when he left the apartment.

[6]

The appellant argues that he never made the statement to the Nashville
    police detective, and that because he was located in Toronto when he spoke to
    the Nashville police detective, the evidence was gathered in Canada. Pursuant
    to s. 32(2) of the
Extradition Act
, S.C. 1999, c. 18, [e]vidence
    gathered in Canada must satisfy the rules of evidence under Canadian law in
    order to be admitted. In the appellants submission, the evidence would be
    inadmissible under Canadian law, because, among other bases, there was a
    violation of the appellants ss. 7 and 10(b)
Charter
rights.

[7]

We find no basis to interfere with the extradition judges decision.
    Whether or not the statement was actually made is an issue for a trial. As for the
    place where the evidence was gathered, several courts have found that
    information obtained by telephone where the call is made, as here, by a police
    officer located in the United States to a person located in Canada, for the
    purpose of an American investigation, is gathered where the officer is located:
    see e.g.
United States of America v. Dynar
, [1997] 2 S.C.R. 462, at
    para. 136. As a result, the evidence did not have to meet Canadian requirements
    for admissibility and was properly relied on by the extradition judge as
    constituting admissible evidence justifying committal for trial in Canada, had
    the offence occurred in Canada.

[8]

For these reasons, the appeal is dismissed.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

Paul Rouleau J.A.


