






Citation:


Earles 
          v. U.S.A. & Canada


Date:
20030114







2003 
          BCCA 20


Docket:


CA028691















COURT 
          OF APPEAL FOR BRITISH COLUMBIA






BETWEEN:






UNITED STATES OF AMERICA






RESPONDENT






AND:






WALLE WINSTEL EARLES






APPELLANT









A-N-D














Docket:


CA029250








BETWEEN:




WALLE WINSTEL EARLES




APPLICANT






AND:




MINISTER OF JUSTICE FOR CANADA




RESPONDENT












Before:


The 
          Honourable Chief Justice Finch







The 
          Honourable Madam Justice Rowles







The 
          Honourable Madam Justice Huddart
















G.P. 
          DelBigio


Counsel 
          for the Appellant




C.W. 
          Greenwood





D.J. 
          Strachan




Counsel 
          for the Respondent

United 
          States of America



Counsel 
          for the Respondent

Minister 
          of Justice for Canada






Place 
          and Date of Hearing:


Vancouver, 
          British Columbia




November 25, 2002




Place 
          and Date of Judgment:


Vancouver, 
          British Columbia




January 14, 2003








Written 
    Reasons by:

The 
    Honourable Chief Justice Finch



Concurred 
    in by:

The 
    Honourable Madam Justice Rowles

The 
    Honourable Madam Justice Huddart







Reasons 
    for Judgment of the Honourable Chief Justice Finch:





I.



[1]

These are proceedings under the
Extradition Act
, S.C. 
    1999, c.18.  On 5 July 2001 a judge of the Supreme Court of British Columbia, 
    sitting as a extradition judge, ordered that Walle Winstel Earles (the appellant) 
    be committed into custody for the offences of conspiracy to produce marijuana, 
    and production of marijuana, in the State of Oklahoma, in the United States 
    of America.  On 29 November 2001 the Minister of Justice for Canada ordered 
    the surrender of the appellant to the United States of America for those offences.

[2]

Mr. Earles appeals against the committal order, and seeks judicial 
    review of the surrender order.  He says the learned extradition judge erred 
    in refusing his counsel an opportunity to cross-examine the Oklahoma prosecuting 
    attorney, R. T. Raley, whose affidavit was filed in support of the application 
    for extradition.  The appellant says such cross-examination may have disclosed 
    evidence that the request for the appellants return is based on evidence 
    of accomplices that is tainted, suspect and unreliable.  And he says the refusal 
    of an opportunity to cross-examine prevented him from putting evidence before 
    the Minister of Justice that may have caused her to exercise her discretion 
    in his favour.

[3]

On the application for judicial review of the Ministers order for 
    surrender, the appellant argues that the Minister failed to give adequate 
    weight to humanitarian considerations reflecting his age and other circumstances, 
    and the potentially long period of incarceration he faces if convicted in 
    Oklahoma.  The appellant also says the Minister erred in failing to find that 
    his surrender would be unjust or oppressive, which are grounds for refusing 
    extradition under s.44(1)(a) of the
Act
.

[4]

For the reasons which follow I have concluded that the learned extradition 
    judge did not err in denying the appellant the opportunity to cross-examine, 
    and hence did not err in making the committal order.  The appellant has not 
    identified a basis upon which to conduct a review of the Ministers order 
    to surrender Mr. Earles to the United States.

II.  
    FACTS

[5]

The following statement of facts is substantially adopted from the 
    factum of counsel for the United States of America, Mr. Greenwood, which I 
    consider a fair and accurate summary.

[6]

On 8 January 1996, members of the Tulsa Police Department obtained 
    and executed a search warrant for a warehouse in Tulsa, Oklahoma.  They located 
    and seized an extensive hydroponic grow operation consisting of 1,749 plants, 
    documents, and equipment related to the cultivation of the plants.  Two of 
    the documents located were Citibank credit cards in the name of Walle Earles.

[7]

The warehouse containing the grow operation was leased to an individual 
    named Alyce Allardyce, and the appellant was present when the lease was signed.

[8]

In the fall of 1994, the appellant introduced himself to a neighbour 
    as the individual who had leased the warehouse.  Between the fall of 1994 
    and January 1996, the appellant was seen going inside the warehouse once or 
    twice a week.

[9]

Members of the Tulsa Police Department searched the appellants residence 
    and seized a small amount of marijuana, a marijuana growing formula, a receipt 
    for a supply of PVC pipe, and payment receipts to Jim Rose and Scott White.

[10]

The 
    evidence seized from the grow operation was secured in the Tulsa Police Department 
    Property Room.  The plant material was later analyzed and found to be marijuana.

[11]

The 
    requesting state relied on affidavits sworn by the appellants three accomplices. 
     They directly implicated the appellant in the marijuana grow operation located 
    by the Police.  The three affiants are James Rose, Stephen Stewart and Scott 
    White.

[12]

James 
    Rose was a co-accused who agreed to cooperate with the government, pled guilty 
    and was sentenced for the marijuana offences.  He subsequently testified before 
    a Grand Jury and swore an affidavit which was tendered by the requesting state 
    at the appellants extradition hearing.  He had been approached to help Stephen 
    Stewart and the appellant with their marijuana grow operation.  The appellant 
    taught him about hydroponic marijuana grows and prepared scheduling charts 
    to assist him.

[13]

Stephen 
    Stewart also agreed to cooperate with the government, pled guilty to the marijuana 
    offences and was sentenced.  On the day of his sentencing, he swore two affidavits 
    that were tendered at the appellants extradition hearing.  According to Mr. 
    Stewart, the appellant financed the marijuana growing operation, invested 
    approximately $3,000 for the grow equipment, and had accompanied Mr. Stewart 
    to buy growing supplies on three or four occasions.  The appellant gave Mr. 
    Stewart between half a pound and one pound of marijuana on six occasions and 
    told him to sell half of it and put the proceeds back into the grow operation.

[14]

Scott 
    White, the third accomplice, testified before the Grand Jury in relation to 
    the leadership role of the appellant in the marijuana grow operation, and 
    later swore an affidavit relied on by the requesting state at the appellants 
    extradition hearing.  He helped Mr. Stewart, Mr. Rose, and the appellant construct 
    the interior of the warehouse for the marijuana growing operation.  He also 
    assisted them in topping, watering and moving the plants.

[15]

In 
    Oklahoma, the offence of manufacturing 1,000 or more marijuana plants carries 
    a sentence of not less than 10 years imprisonment, and not more than life, 
    and a fine of up to $4,000,000.  The offence of maintaining a place for the 
    purpose of manufacturing marijuana carries a sentence of not more than 20 
    years imprisonment, and a fine of not more than $500,000.

[16]

The 
    statute which provides the penalty for the manufacture of marijuana also permits 
    an offender to be sentenced to both imprisonment and fined, and provides that 
    a judge shall impose a term of supervised release of at least five years in 
    addition to the other terms of sentence imposed.  A person sentenced in accordance 
    with this provision is not eligible for parole.

[17]

The 
    materials filed in support of the request for extradition do not contain any 
    information concerning the circumstances under which Mr. Stewart, Mr. Rose 
    or Mr. White agreed to cooperate with the government, the terms of the cooperation 
    agreement, the sentences imposed, or the details of any criminal record that 
    any of them might have had.

[18]

In 
    the course of the extradition hearing the appellant applied to cross-examine 
    Robert Raley upon issues including the criminal records, cooperation agreements 
    and sentences imposed upon those persons that provided affidavit evidence 
    against the appellant.  The application was made for two purposes.  First, 
    it was made in order to lead evidence in support of a s.7
Charter
application on the grounds that the United States authorities used improper 
    means to obtain evidence used in support of the extradition of the appellant.  
    Secondly, the application was made in order to gather information which may 
    then have been considered by the Minister of Justice at the second stage of 
    the extradition proceedings.

III. 
    THE EXTRADITION JUDGES REFUSAL OF CROSS-EXAMINATION

[19]

The 
    learned extradition judge refused the appellant the opportunity to cross-examine 
    any of the affiants on their affidavits.  He said:

This 
    hearing and the cross-examination of affidavits relating to the subject under 
    consideration goes to the matter of weight to be attached to the evidence 
    submitted, and cross-examination of the affidavits in that respect, in my 
    view, is of no utility in this hearing. The weight to be attached to the evidence 
    and circumstances surrounding the manner in which the evidence was obtained, 
    unless it falls in the class of evidence touched on in
Dynar
, 
    is evidence for the tribunal of fact to consider. This court should not embark 
    upon a process of allowing cross-examination merely on the suggestion that 
    something might be obtained, which might be of assistance, which might arguably 
    be a basis for a s.7 challenge. The evidentiary burden, in my respectful view, 
    is on the fugitive to establish a foundation for the exercise of a limited 
    discretion touched on by the Supreme Court of Canada. No such evidentiary 
    burden has been met in the case at bar.



[20]

With 
    respect to the argument that cross-examination could provide useful information 
    on the application to surrender, the extradition judge said:

As to 
    the second branch of argument that the material, which could be of assistance 
    to the Minister at the second stage if these proceedings gets to that stage, 
    a short answer is that it is open to the person sought to introduce whatever 
    evidence or material he or she thinks fit at the ministerial stage. The discretion 
    referred to in the authorities, which indicate that it may be convenient to 
    introduce such evidence at an extradition hearing, although not relevant to 
    the decision of the extradition judge, in my view, should be exercised very, 
    very sparingly. I will only make a quick reference; I will not quote the
Kwok
decision of the Supreme Court of Canada that in relation to the indication 
    that the exercise of discretion is a sparing one at best. Consequently, the 
    applications on behalf of the person sought to order cross-examination on 
    affidavits is dismissed.







IV.  
    THE MINISTERS DECISION TO SURRENDER MR. EARLES

[21]

The 
    Minister held the opinion that humanitarian considerations did not preclude 
    the appellants surrender.  In her letter rejecting counsels submissions 
    opposing surrender she said:

The 
    argument has been made that Mr. Earles should not be surrendered based on 
    his personal circumstances. In my opinion, the circumstances of this case 
    do not justify a refusal of surrender on humanitarian grounds. The Supreme 
    Court of Canada has held that to arrive at a conclusion that the surrender 
    of a person sought would violate the principles of fundamental justice and 
    contravene the
Charter
, it would be necessary to establish that 
    the person sought would face a situation which is simply unacceptable or 
    shockingly and fundamentally unacceptable in our society. In my view, it 
    has not been established that Mr. Earles would face such a situation. I am 
    further of the view that the circumstances of this case do not justify refusal 
    for humanitarian considerations on the basis on my general discretion.



[22]

She 
    declined to review the reliability of the requesting states evidence:

You 
    submit that surrender should be denied basis [sic] of the unreliability of 
    the prosecution evidence in the United States. You indicate that a substantial 
    amount of evidence comes from co-accused who were cooperating state witnesses. 
    In this case, the extradition judge considered the evidence and concluded 
    that the United States met the requirements of Section 29(1)(a) of the
Extradition 
    Act
and that there was sufficient evidence to commit Mr. Earles for 
    extradition on the Canadian offences set out in the Authority to Proceed. 
    As this is a matter for the judicial phase of the extradition process, it 
    would be inappropriate for me to revisit this issue. Further, the issue of 
    the overall sufficiency of the evidence to support a conviction rests with 
    the trier of fact in the United States.



[23]

And 
    she held that surrendering the appellant to face the applicable penalties 
    in Oklahoma would not infringe the appellants rights under s.7 of the
Charter
:

You 
    further submit that surrender should be denied on the basis that if convicted 
    in the United States, Mr. Earles faces a jail sentence that would likely mean 
    he would die in jail. Apart from death penalty cases, nothing in the
Treaty
or the
Extradition Act
allows for refusal to surrender because 
    of penalties applicable in the requesting State. It remains for me, however, 
    to consider whether section 7 of the
Charter
prohibits Mr. Earles 
    surrender.



In the 
    language of the Supreme Court of Canada in
United States v. Burns
(2001), 151 C.C.C. (3d) 97, the issue is whether a particular treatment or 
    punishment may sufficiently violate our sense of fundamental justice. In my 
    view, a decision to surrender Mr. Earles would not violate Section 7 of the
Charter
on the basis of the penalty he would face. In this case, 
    even if the American sentence is harsher than the sentence Mr. Earles would 
    be subject to in Canada, it cannot be said that the extradition of Mr. Earles 
    would be contrary to the principles of fundamental justice.



[24]

She 
    concluded that there was no reason not to recognize Canadas obligation under 
    the
Extradition Treaty
with the United States of America, and 
    therefore ordered the appellants surrender to the United States of America.

V.   
    THE
EXTRADITION TREATY
AND THE
EXTRADITION ACT

[25]

The 
    following provisions of the
Extradition Treaty
and
Extradition 
    Act
are relevant:

Treaty 
    on Extradition between Canada and the United States of America



ARTICLE 
    10



(1) 
    Extradition shall be granted only if the evidence be found sufficient according 
    to the laws of the place where the person sought shall be found, either to 
    justify his committal for trial if the offense of which he is accused had 
    been committed in its territory or to prove that he is the identical person 
    convicted by the courts of the requesting State.



(2) 
    The documentary evidence in support of a request for extradition or copies 
    of these documents shall be admitted in evidence in the examination of the 
    request for extradition when, in the case of a request emanating from Canada, 
    they are authenticated by an officer of the Department of Justice of Canada 
    and are certified by the principal diplomatic or consular officer of the United 
    States in Canada, or when, in the case of a request emanating from the United 
    States, they are authenticated by an officer of the Department of State of 
    the United States and are certified by the principal diplomatic or consular 
    officer of Canada in the United States.



Extradition 
    Act
, S.C. 1999, c.18

29
.(1) 
    A judge shall order the committal of the person into custody to await surrender 
    if

(a)  in the case of a person sought for         prosecution, 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 set out in the authority 
    to proceed and the judge is satisfied that the   person is the person sought 
    by the extradition    partner;



32
.(1) 
    Subject to subsection (2), evidence that would otherwise be admissible under 
    Canadian law shall be admitted as evidence at an extradition hearing. The 
    following shall also be admitted as evidence, even if it would not otherwise 
    be admissible under Canadian law:

(a)  the contents of the documents contained in the record of the case certified 
    under subsection 33(3);

(b)  the contents of the documents that are     submitted in conformity with 
    the terms of an   extradition agreement; and

(c)  evidence adduced by the person sought for extradition that is relevant.



40
.(1) 
    The Minister may, within a period of 90 days after the date of a persons 
    committal to await surrender, personally order that the person be surrendered 
    to the extradition partner.



(3) 
    The Minister may seek any assurances that the Minister considers appropriate 
    from the extradition partner, or may subject the surrender to any conditions 
    that the Minister considers appropriate, including a condition that the person 
    not be prosecuted, nor that a sentence be imposed on or enforced against the 
    person, in respect of any offence or conduct other than that referred to in 
    the order of surrender.



43
.(1) 
    The person may, at any time before the expiry of 30 days after the date of 
    the committal, make submissions to the Minister in respect of any ground that 
    would be relevant to the Minister in making a decision in respect of the surrender 
    of the person.



44
.(1) 
    The Minister shall refuse to make a surrender order if the Minister is satisfied 
    that

(a)  the surrender would be unjust or oppressive having regard to all the 
    relevant   circumstances; or ...

(2) 
    The Minister may refuse to make surrender order if the Minister is satisfied 
    that the conduct in respect of which the request for extradition is made is 
    punishable by death under the laws that apply to the extradition partner.



57
.(1) 
    Despite the
Federal Court Act
, the court of appeal of the province 
    in which the committal of the person was ordered has exclusive original jurisdiction 
    to hear and determine applications for judicial review under this Act, made 
    in respect of the decision of the Minister under section 40.



(6) 
    On an application for judicial review, the court of appeal may

(a)  order the Minister to do any act or thing that the Minister has unlawfully 
    failed or     refused to do or has unreasonably delayed in      doing; or

(b)  declare invalid or unlawful, quash, set    aside, set aside and refer 
    back for     determination in accordance with any directions    that it considers 
    appropriate, prohibit or      restrain the decision of the Minister referred 
    to in subsection (1).



(7) 
    The court of appeal may grant relief under this section on any of the grounds 
    on which the Trial Division of the Federal Court of Canada may grant relief 
    under subsection 18.1(4) of the
Federal Court Act
.







[26]

The 
    provisions of the
Federal Court Act
, R.S.C. 1985, c.F-7 referred 
    to in s.57(7) are:

18
.1(4) 
    The Trial Division may grant relief under subsection (3) if it is satisfied 
    that the federal board, commission or other tribunal



(a)  acted without jurisdiction, acted beyond   its jurisdiction or refused 
    to exercise its         jurisdiction;



(b)  failed to observe a principle of natural   justice, procedural fairness 
    or other procedure     that it was required by law to observe;



(c)  erred in law in making a decision or an    order, whether or not the 
    error appears on the    face of the record;



(d)  based its decision or order on an     erroneous finding of fact that 
    it made in a    perverse or capricious manner or without regard     for the 
    material before it;



(e)  acted, or failed to act, by reason of fraud or perjured evidence; or



(f)  acted in any other way that was contrary   to law.



VI.  
    THE APPEAL AGAINST THE COMMITTAL ORDER

[27]

The 
    appellant says that the order refusing cross-examination was a breach of his 
    rights under s.7 of the
Charter
.  He says the requesting states 
    reliance on evidence obtained in an abusive way, untested by cross-examination, 
    rendered the hearing unfair.  He argued that his counsel should be entitled 
    to cross-examine on the affidavits filed in support of extradition because 
    the evidence provided by alleged accomplices during a plea bargaining process, 
    and in the face of draconian sentencing provisions, is inherently unreliable.  
    The material filed does not disclose the penalties imposed on the accomplices 
    in exchange for their cooperation with the authorities.  The appellant contends 
    that the potentially harsh sentences would inevitably have led the accomplices 
    to shade the truth, or to be dishonest.  He says cross-examination of the 
    affiants would demonstrate whether the plea bargaining process was fair or 
    unfair.

[28]

He 
    says the circumstances in which the affidavits were obtained erode their reliability, 
    and give rise to the concern that there has been an abuse of process.  The 
    appellant says that discrediting the accomplices evidence is not simply a 
    matter affecting its weight for the purposes of trial.  He says cross-examination 
    in the extradition process would have provided the opportunity to show that 
    due process was not followed, and that the process was abusive, unfair and 
    not in accord with the principles of fundamental justice.

[29]

Counsel 
    for the requesting state emphasizes the fundamental nature and purpose of 
    an extradition hearing, and relies upon the provisions of the
Extradition 
    Treaty
and
Extradition Act
quoted above.  In particular, 
    he referred to s.10(1) and (2) of the
Treaty
, and s.32(1)(b) 
    of the
Act
.

[30]

Counsel 
    points out that neither the
Treaty
nor the
Act
contemplates cross-examination of foreign witnesses.  And he relies upon what 
    LaForest J. said in
U.S.A. v. McVey
(1992), 77 C.C.C. (3d) 1 
    (S.C.C.) at 17:

To expedite 
    the procedure and minimize expense, however, depositions are to be admitted 
    in evidence in lieu of witnesses at the hearing when properly certified and 
    authenticated (art.10(2)). For their validity, we thus rely on the fairness 
    and good faith of judicial and political authorities of the requesting state.



[31]

Counsel 
    for the requesting state stressed that the purpose of an extradition hearing 
    is to determine whether there is sufficient evidence to warrant committal, 
    not to determine the appellants guilt or innocence.  He says the authorities 
    show that refusal of cross-examination on an extradition hearing does not 
    constitute a breach of the appellants s.7 rights citing:
U.S.A. v. 
    Smith
(1984), 10 C.C.C. (3d) 540 (Ont.C.A.);
U.S.A. v. Davenport
(1986), 32 C.C.C. (3d) 209 (B.C.C.A.);
Schmidt and the Queen
(1984), 10 C.C.C. (3d) 564 (Ont.C.A.) affd (1987), 33 C.C.C. (3d) 193 (S.C.C.); 
    and
Re: State of Wisconsin v. Armstrong
(1973), 10 C.C.C. (2d) 
    271 (F.C.A.) leave to appeal refused (1973), 10 C.C.C. (2d) 271n.

[32]

Counsel 
    for the requesting state also relies on
Argentina v. Mellino
(1997), 33 C.C.C. (3d) 334 (S.C.C.) at 349, where LaForest J. said:

Responsibilities 
    for the conduct of our foreign relations, including the performance of Canadas 
    obligations under extradition treaties, is, of course, vested in the executive. 
    I repeat: the role of the extradition judge is a modest one; absent express 
    statutory treaty authorization, the sole purpose of an extradition hearing 
    is to ensure that the evidence establishes a prima facie case that the extradition 
    crime has been committed.



[33]

In 
    my respectful view, the learned extradition judge did not err in refusing 
    the appellant the opportunity to cross-examine on the affidavits filed by 
    the requesting state.

[34]

U.S.A. v. Dynar
(1997), 115 C.C.C. (3d) 481 (S.C.C.) holds that foreign law enforcement 
    authorities are not subject to the
Charter
and, an argument 
    against admissibility pursuant to s.24(2) must necessarily fail.  The Supreme 
    Court did not say that there may never be circumstances in which an extradition 
    hearing would be rendered unfair by the conduct of the requesting state in 
    gathering evidence, but said that would be a rare and exceptional case.  The 
    Court held that before a fugitive will be allowed to embark on a
Charter
inquiry, there must be some air of reality to a contention that the extradition 
    hearing risks being unfair.

[35]

The 
    material before the extradition judge did not provide an air of reality 
    to the contention that the extradition hearing would be so unfair as to violate 
    s.7.

[36]

Counsel 
    for the appellant suggested during the hearing of the appeal that the obligation 
    to adduce evidence of improper conduct in order to be permitted to cross-examine 
    Mr. Raley  put the appellant in a Catch 22 situation: he could only obtain 
    evidence of improper conduct of the requesting state if he was permitted to 
    cross-examine; but he could not cross-examine unless he could show improper 
    conduct on the part of the requesting state.

[37]

With 
    respect, I do not think this is sound.  The authorities do not impose an absolute 
    bar on cross-examination in all circumstances in the extradition process:
United States v. Kwok
(2001), 152 C.C.C. (3d) 225 (S.C.C.).  But before cross-examination may be 
    permitted, there must be some evidentiary foundation for the request, or an 
    air of reality to the allegation that the extradition hearing was unfair or 
    an abuse of process.  The fact that some of the affiants were accomplices, 
    who made plea bargains, does not provide the basis of a s.7
Charter
violation.  In my view, the extradition judge properly concluded on the evidence 
    before him, that cross-examination would only go to weight, and not to admissibility.  
    The weight of the evidence is a matter for the trial judge in the requesting 
    state.

[38]

I 
    would not give effect to this ground of appeal.

[39]

The 
    appellant advanced a second argument based on s.7 of the
Charter
.  
    He contended that the learned extradition judge erred in refusing cross-examination, 
    because it prevented him from making a record of evidence for the Minister 
    when she came to decide whether the appellant should be surrendered to the 
    U.S.A.

[40]

The 
    appellant says the learned extradition judge erred in holding that his discretion 
    to permit cross-examination for that purpose should be exercised very very 
    sparingly.  He says the discretion acknowledged by the Supreme Court of Canada 
    in
Kwok v. U.S.A.
,

supra,
is not so limited: 
    see paras.74 and 75.

[41]

The 
    appellant relies on s.44(1) of the
Extradition Act
, quoted above, 
    which provides in part:

44
.(1) 
    The Minister shall refuse to make a surrender order if the Minister is satisfied 
    that

(a)  the surrender would be unjust or oppressive having regard to all the 
    relevant   circumstances; or



[42]

He 
    emphasizes that these provisions are mandatory and that therefore the discretion 
    to adduce evidence of injustice or oppression should not be limited in the 
    way suggested by the extradition judge.  Any evidence of fraud, perjury or 
    lack of natural justice would be sufficient to put the Minister on her inquiry, 
    so that the appellant should have a proper opportunity to cross-examine to 
    explore such areas.

[43]

He 
    also says that s.44 of the
Extradition Act
must be read in light 
    of s.40(3) which provides in part:

40
.(3) 
    The Minister may seek any assurances that the Minister considers appropriate 
    from the extradition partner, or may subject to the surrender to any conditions 
    that the Minister considers appropriate, including a condition that the person 
    not be prosecuted, nor that a sentence be imposed on or enforced against the 
    person, in respect of any offence or conduct other than that referred to in 
    the order of surrender.



[44]

The 
    appellant says he was entitled to present evidence to the Minister and therefore 
    to obtain it on the extradition hearing in respect of conditions that might 
    be imposed upon a surrender, or in respect of assurances which might be sought 
    from the requesting state.

[45]

Finally, 
    the appellant says the Supreme Court of Canada in
Dynar
, 
    supra
, recognized that the Ministers discretion may attract
Charter
scrutiny.  He therefore contends that he may present evidence and make submissions 
    on potential
Charter
violations at the surrender hearing.

[46]

In
Kwok
, supra
, the Supreme Court of Canada held (para.74) 
    that the decision to hear evidence that is premature at the committal stage 
    is entirely within the discretion of the extradition judge.  It said the 
    judge should bear in mind the need for an expeditious decision on whether 
    there is enough evidence to commit the person sought for surrender.  Accordingly, 
    the extradition judge is not bound to hear evidence relevant only at the Ministerial 
    phase of the extradition process.

[47]

In 
    my view, therefore, the refusal of the extradition judge to exercise his discretion 
    in favour of the appellant, for the purposes of creating a record for the 
    Minister is not a reviewable error in this court.

[48]

I 
    would not give effect to this ground of appeal.

[49]

It 
    follows that I would dismiss the appellants appeal of the committal order.

VII. 
    JUDICIAL REVIEW OF THE MINISTERS DECISION TO SURRENDER

[50]

The 
    appellant seeks judicial review of the Ministers decision to surrender Mr. 
    Earles.  The appellant says the Minister failed to take into account relevant 
    factors, and fettered her discretion, by deferring to the trial judge on 
    the issue of the reliability of the requesting states evidence.  In other 
    words, the Minister, in the proper exercise of her jurisdiction, had an obligation 
    to consider, independent of the extradition judge, the appellants contention 
    that the United States authorities conduct amounted to an abuse of process, 
    and that the accomplices affidavits were inherently unreliable.

[51]

The 
    appellant says the unreliability of the prosecution evidence in the United 
    States is a relevant factor which would render the surrender unjust or oppressive.  
    Under s.44(1)(a) of the
Extradition Act
, the Minister is obliged 
    to refuse to make a surrender order where the surrender would be unjust or 
    oppressive having regard to all the relevant circumstances.

[52]

The 
    role of the Minister in the surrender process is to consider Canadas good 
    faith and honour in its relations with other states, the constitutional rights 
    of the person sought, and the political ramifications of the extradition decision: 
    see
Ibziak v. Canada (Minister of Justice)
(1992), 77 C.C.C. 
    (3d) 65 (S.C.C.) and
U.S.A. v. Whitely
(1994), 94 C.C.C. (3d) 
    99 (Ont.C.A.) affd (1996), 104 C.C.C. (3d) 447 S.C.C.

[53]

As 
    the executive branch of government has expertise in political matters, the 
    Minister is responsible for ensuring compliance with the conditions for extradition 
    described in the
Extradition Act
.  The functions performed by 
    the Minister and the extradition judge are separate and distinct, and do not 
    overlap.  The Minister and the extradition judge do not review each others 
    decisions; those decisions are reviewed by the Court of Appeal.

[54]

There 
    is nothing in the record to suggest that the evidence presented to the Minister 
    in this case was manufactured or motivated by malice on the part of the witnesses 
    or the prosecution authorities.  The appellants argument is simply that the 
    accomplices evidence in this case is inherently unreliable.  While there 
    may be circumstances under which the reliability of the requesting states 
    evidence is such that to surrender the fugitive would sufficiently shock 
    the conscience, thereby engaging s.7 of the
Charter
or s.44(1)(a) 
    of the
Extradition Act
, the facts of this case do not, in my 
    view, rise to this level.

[55]

With 
    respect, the reliability of the evidence is not otherwise a relevant consideration 
    for the Minister.  In due course, it will be for the trier of fact in the 
    United States to assess the credibility and reliability of the evidence and 
    the sufficiency of the case for the prosecution according to the law of Oklahoma.

[56]

I 
    do not consider that the Minister took the wrong approach to the sufficiency 
    of the evidence, and I would not give effect to this ground of review.

[57]

The 
    appellants other issues on the application for judicial review merge the 
    Ministers consideration of the humanitarian issues affecting the appellants 
    case, with a consideration of the potential penalties facing the appellant 
    if convicted in the United States, and the appellants rights under s.7 of 
    the
Charter
.  Counsel says the Minister erred in her treatment 
    of the potential penalties because of the significant disparity between the 
    penalties the appellant faces in the requesting state, as compared with the 
    potential sentences for similar offences if committed in Canada.  He says 
    the United States penalties shock the conscience and are fundamentally unacceptable.

[58]

Counsel 
    for the appellant then says the Minister erred in failing to consider adequately 
    the specific effect the United States penalties would have on the appellant 
    having regard for his age of 59 years, and the fact that he is married, gainfully 
    employed and has no criminal record.  The appellant says those are grounds 
    on which surrender should have been refused, and the Minister erred in failing 
    to do so.

[59]

Finally, 
    counsel says that given these humanitarian considerations, the order for surrender 
    amounts to a breach of the appellants rights guaranteed by s.7 of the
Charter
.

[60]

A 
    Ministers decision on the issue of surrender attracts a high degree of deference 
    from the court: see
Gervasoni v.
Canada (Minister of Justice)
(1996), 72 B.C.A.C. 141 (B.C.C.A.), leave refused [1996] 2 S.C.R. 
    viii, per Cumming J.A. at para.24;
U.S.A. v. 
    Kwok
, supra
, at paras.32, 94 and 95; and
U.S.A. v. Burns
(2001), 
    151 C.C.C. (3d) 97 (S.C.C.) at 117.

[61]

The 
    potential penalties applicable in the United States do not meet the standard 
    of shocking the conscience, or being completely unacceptable.  While the penalties 
    are substantially greater than those that apply in Canada for similar offences, 
    the disparity is no greater than in cases where the standard for refusing 
    surrender was not met: see
Ross v. U.S.A.
(1994), 93 C.C.C. 
    (3d) 500 (B.C.C.A.) affd (1996), 104 C.C.C. (3d) 446 (S.C.C.);
U.S.A. 
    v. Whitely
, supra
; and
Re: Jamieson and United States 
    of America et al
(1994), 93 C.C.C. (3d) 265 (Que.C.A.) revd (1996), 
    104 C.C.C. (3d) 575 (S.C.C.).

[62]

Nor, 
    in my view, do the appellants age and other personal circumstances considered 
    in conjunction with the potential penalties provide any basis for concluding 
    that the Ministers discretion was wrongly exercised or that her decision 
    amounts to a breach of the appellants s.7 rights.

[63]

The 
    principles of fundamental justice require that a fugitive not be surrendered 
    where, to do so, would sufficiently shock the conscience (see:
Schmidt 
    and the Queen
,
supra
).  In her decision, the Minister reached 
    the conclusion that Mr. Earles had not established that he would face a situation 
    if surrendered which is simply unacceptable or shockingly and fundamentally 
    unacceptable in our society.  The Ministers approach was correct at law.  
    The appellant has failed to  advance any basis for the Court of Appeal to 
    review her decision.  I do not consider that the appellants age and other 
    personal circumstances, give rise to a situation which would sufficiently 
    shock the conscience.  Accordingly, the Ministers decision to surrender 
    Mr. Earles does not amount to a breach of his s.7
Charter
rights.

[64]

I 
    would dismiss the application for judicial review of the Ministers decision.

VIII.  
    DISPOSITION

[65]

I 
    would dismiss the appellants appeal against the extradition judges order 
    for committal.  I would dismiss the appellants application for judicial review 
    of the Ministers decision for surrender.



The 
    Honourable Chief Justice Finch







I AGREE:







The Honourable Madam 
    Justice Rowles







I AGREE:







The Honourable Madam 
    Justice Huddart


