



COURT OF APPEAL FOR ONTARIO

CITATION:  United States v. Aneja, 2014 ONCA 423

DATE:  20140526

DOCKET: C55716 & C56402

Doherty, Feldman and Lauwers JJ.A.

BETWEEN

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

Respondent

and

Jay Aneja

Appellant/Applicant

Edward L. Greenspan, Q.C. and Joseph S. Wilkinson, for
    the appellant

Faiyaz Amir Alibhai, for the respondent

Heard: March 19, 2014

On appeal from the committal order of Justice Thomas R. Lofchik
    of the Superior Court of Justice, dated July 10, 2012, with reasons reported at
    2012 ONSC 4062, and on application for judicial review of the surrender order
    of the Minister of Justice, dated December 12, 2012.

Doherty J.A.:


I



overview

[1]

In August 2011, the United States of America (the United States) requested
    the extradition of the appellant on various charges.  In July 2012, the
    extradition judge ordered the appellant committed for surrender on various
    charges.  In December 2012, the Minister of Justice (Minister) ordered the
    appellant surrendered to the United States on the charges for which he had been
    ordered committed for surrender.

[2]

The appellant appeals from the committal order and seeks judicial review
    of the Ministers surrender order.  In keeping with the practice of this court,
    the two matters were heard together.

[3]

On the appeal from the committal order, counsel submits that the
    extradition judge erred in refusing to admit evidence tendered by the defence
    to support the contention that the evidence relied upon by the United States in
    support of its request for extradition was unreliable and could not justify
    committal for surrender.  Counsel submits that the evidence proffered by the
    defence tended to show that the evidence of the two accomplices relied on by
    the United States was not credible.  Counsel submits that the extradition judge
    should have admitted the evidence, and gone on to determine whether the
    totality of the evidence on the hearing justified the appellants committal for
    surrender.  The appellant seeks a new extradition hearing at which his evidence
    can be received and the question of committal determined by reference to that
    evidence as well as the evidence relied on by the United States.

[4]

On the judicial review application, counsel focuses on the disparity
    between the length of the jail sentence the appellant will face if convicted in
    the United States of the charges and the length of the jail sentence a person
    would face in Canada if convicted of the comparable offences.  Counsel argues
    that the disparity between the two is so great that the surrender of the
    appellant to face a draconian sentence in the United States would shock the
    conscience of the reasonably informed observer.  Counsel submits that the
    surrender of the appellant absent assurances by the United States authorities to
    the Canadian government that the appellant would receive a sentence comparable
    to the sentence that would be imposed in Canada contravenes s. 7 of the
Charter
and is an unconstitutional exercise of the Ministers discretion.

[5]

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


II



the charges

[6]

The extradition request by the United States sought surrender on several
    offences:

·

Arson and fraud-related charges arising out of a fire in August
    2008 at the business operated by the appellant and his subsequent insurance
    claim for damages caused by the fire.

·

An obstruct justice charge arising out of an alleged misrepresentation
    made by the appellant to an FBI agent in the course of the investigation of the
    fire.  It was alleged that the appellant falsely represented that he was an
    American citizen.

·

A firearm charge arising out of an event in February 2008.  The
    appellant allegedly gave a pistol to Michael Lee, a person whom he knew to be a
    felon.

[7]

The authority to proceed issued by the Minister identified the
    corresponding Canadian offences as:

·

arson for a fraudulent purpose contrary to s. 435 of the
Criminal
    Code
;

·

fraud contrary to s. 380 of the
Criminal Code
;

·

obstructing justice contrary to s. 139 of the
Criminal Code
;
    and

·

unauthorized possession of a firearm contrary to s. 91 of the
Criminal
    Code
.

[8]

The extradition judge ultimately ordered the appellant committed on:

·

arson for a fraudulent purpose;

·

attempted fraud; and

·

unauthorized possession of a firearm.

[9]

The extradition judge committed on the charge of attempted fraud rather
    than fraud because the insurance company did not actually make any payment on
    the claim.  He declined to commit on the obstruct justice charge because he
    concluded that the appellants misrepresentation did not relate to the subject
    matter of the investigation.

[10]

The
    respondent does not challenge the extradition judges refusal to commit the appellant
    on the obstruct justice charge, or his decision to commit the appellant on the
    charge of attempted fraud rather than fraud.


III



the requesting states evidence

[11]

The
    record of the case (ROC) submitted on behalf of the United States consisted
    of an initial record and three supplemental records containing a summary of the
    anticipated evidence relied on by the U.S. authorities.  The evidence was
    certified pursuant to s. 33 of the
Extradition Act
, S.C. 1999, c. 18 (the Act), a
s both
    available and sufficient to justify prosecution in the United States.  The ROC included
    summaries of the anticipated evidence of Michael Lee and Sidney Terry, who,
    according to the U.S. authorities, were hired by the appellant to set the
    fire.  I will summarize the parts of the ROC that relate to the arson/fraud
    charges first and then summarize the part of the ROC concerning the gun charge.

(a)

The Arson/Fraud Charges

[12]

On
    Sunday, August 3, 2008, a fire occurred at Sofa Outlet Inc. (Sofa Outlet), a
    furniture store in Roanoke, Virginia.  The fire caused more than $800,000
    damage to the Sofa Outlet and other stores located in the same plaza. 
    Investigation determined that the fire was intentionally set.

[13]

Sofa
    Outlet was operated by the appellant.  Business was bad in August 2008.

[14]

Whoever
    set the fire entered and left the Sofa Outlet premises without setting off the security
    alarm.  The alarm was activated by the fire personnel when they arrived in
    response to the call.  The appellant was one of four persons who had the codes
    needed to activate and deactivate the alarm.

[15]

Sofa
    Outlet is nominally owned by the appellants stepmother, but she has never had
    anything to do with the business.  The appellant operated the business, made
    all business-related decisions and received any proceeds generated from the
    business.  The appellant filed a Proof of Claim with Sofa Outlets insurer,
    seeking compensation for the damages caused by the fire.  Any proceeds that may
    have been paid on the insurance claim would have been available to the appellant.

[16]

Michael
    Lee had pled guilty to certain charges arising out of the arson and was serving
    a lengthy jail sentence.  According to the ROC, he was available and willing to
    testify against the appellant.

[17]

Mr.
    Lee, a convicted felon, met the appellant in February 2008 and did some work
    for him at the Sofa Outlet warehouse.  In late July 2008, the appellant
    approached Lee and told him that his store was not doing very well.  He offered
    to pay Lee to burn the store down so that the appellant could make an insurance
    claim.  Lee agreed to do so.

[18]

The
    appellant gave Lee the key to the store and the code for the security system. 
    He told Lee to make it appear as though the store had been vandalized and then
    set on fire by the vandals.

[19]

Lee
    recruited Sidney Terry and Jason Varona to help him.  On Saturday, August 2
nd
,
    they went to the Sofa Outlet store and entered using the key the appellant had
    given Lee.  Lee deactivated the security system with the code given to him by
    the appellant.  The three men loaded some of the Sofa Outlet inventory into a
    truck and drove it to Richmond, Virginia intending to sell the inventory on the
    street.  Lee also took some business records from the office that the appellant
    had told him he wanted removed before the fire was set.

[20]

Lee
    and Terry, but not Varona, returned to the Sofa Outlet store on Sunday
    afternoon, August 3, 2008.  Once again, they entered using the key the
    appellant had given to Lee and Lee disarmed the security system using the code
    the appellant had given to him.  Lee and Terry then relaxed for a while, drinking
    a beer, having a cigarette and taking a nap.  After they awoke, the two men proceeded
    to spread accelerant around the store.  They started fires in several places
    within the building.  Lee reset the security system and the two men left the
    store locking the door behind them.

[21]

Lee
    received some money from the appellant.  He also received a credit card with a $12,000
    limit.  Lee passed a small amount of money on to Terry.

[22]

Terry,
    like Lee, was serving a sentence for offences relating to the arson.  He was
    also available and willing to testify.  His anticipated evidence was similar in
    most respects to Lees anticipated evidence.  According to Terry, he initially believed
    that he was only there to help Lee remove inventory from the store and take it
    to Richmond, Virginia for a midnight auction.  On Terrys anticipated
    evidence, the appellant was party to the fraudulent removal of the inventory on
    Saturday evening.

[23]

Terry
    first learned of the plan to burn the building while removing furniture from
    the building on Saturday, August 2
nd
.  Apparently, Lee had planned
    to set the store on fire immediately after they removed the furniture.  Terry
    pointed out that as they would be taking the furniture to Richmond in a Sofa
    Outlet truck, it would be wise to wait until the next day to set the fire.  Lee
    agreed.  Terry recounted a conversation in which Lee explained to the appellant
    why the fire had not been set immediately after the property was removed from
    the store.

[24]

Terry
    and Lee returned to the store on Sunday, August 3
rd
.  He and Lee set
    the fire and left the building after Lee had reset the alarm.  Lee locked the
    door as they left the store.

(b)

The Gun Charge

[25]

The
    anticipated evidence relating to the firearm charge comes exclusively from
    Lee.  According to the ROC, in February 2008, he told the appellant that he had
    just spent 20 years in prison.  A short time later, the appellant gave Lee a
    pistol telling him to [d]o something with it.  Lee was arrested in possession
    of the pistol about a month later in March 2008 and charged with the offence of
    being a felon in possession of a firearm.  The firearm was operational.


IV



the evidence proffered by the appellant

[26]

At
    the extradition hearing, counsel sought to introduce various documents under s.
    32(1)(c) of the
Act
.  The
    material came largely from the U.S. authorities and court records in the United
    States.  The material included statements made by Lee and Terry to the investigators,
    transcripts of court proceedings, including Grand Jury testimony, transcripts
    of sentencing proceedings, other court documents, criminal records, and
    statements made by the appellant to the U.S. investigators.  Most of the
    material was said to be relevant to the credibility of Lee and Terry and,
    therefore, to the reliability of the parts of the ROC that summarized their
    anticipated evidence.
[1]


[27]

The
    material relating to Lee was extensive.  The relevant parts can be summarized
    as follows:

·

Lee and Terry initially agreed to deny any involvement in the
    fire.

·

When Lee was first questioned a few days after the fire, he in
    fact denied any involvement in the fire.

·

Lee first admitted his involvement in the fire some four months
    later in December 2008.

·

Lees statements to the authorities and his Grand Jury testimony
    contained some inconsistencies as to the details of the events surrounding the
    fire.

·

Lee has an extensive and serious criminal record.

·

Lee entered into a plea arrangement with the authorities.  In
    exchange for his cooperation in the prosecution of the appellant, Lee received
    a sentence totalling 14 years as opposed to the sentence of at least 20 years
    that he would have received but for his cooperation.

·

In respect of the gun charge, Lee made no reference to the
    appellant having given him the gun in February 2008 until December 2008 when Lee
    decided to cooperate with the authorities on the arson charge.

·

There were some inconsistencies in the various statements made by
    Lee about the circumstances in which the appellant came to give him the gun.

[28]

The
    material relating to Terry was also quite extensive and revealed the following:

·

Terry and Lee had initially agreed they would deny any
    involvement in the fire.

·

Terry initially denied any involvement in the fire.

·

Terry subsequently chose to cooperate with the authorities in
    exchange for a reduced sentence.  He eventually received a sentence of 20
    months.

·

Terry had a minor criminal record.

·

Terrys various statements and Grand Jury testimony contain some
    inconsistencies.

[29]

The
    admissibility of the documents turned on whether the material was relevant to
    the test for committal in s. 29(1) of the Act.  The extradition judge described
    the issue in these terms, at para. 26:

Could the evidence sought to be admissible render the
    evidence proffered by the requesting state so defective or unreliable as to
    lead to the conclusion that it would be unsafe or dangerous to convict or
    necessary to withdraw the case from a jury,
or does it just raise issues of
    credibility that will have to be decided by the trier of fact?
[2]
[Emphasis added.]

[30]

The
    extradition judge concluded, at para. 44:

The fact that the requesting state relies on evidence of
    accomplices who made plea bargains goes to the weight of the evidence and does
    not render the evidence manifestly unreliable.  The weight of the evidence is a
    matter for the trial judge in the requesting state.  The cases referred to
    above deal with the interrelationship of principles expressed in
Ferras
.
[3]

Each case confirms that in order to be relevant, such evidence to be called
    must be directed to either demonstrating fundamental inadequacies and frailties
    in, or to make manifestly unreliable, the evidence of the requesting state.  In
    this case the evidence which the person seeks to lead does not achieve those
    objects.  In my view this evidence, if received by the court, would not
    fundamentally undermine the reliability of the evidence from the requesting
    state
or change the analysis of the record of the case.  The points raised
    go to credibility.  [Emphasis added.]


V



the appellants arguments

A:  Did the extradition judge conflate the test governing the
    admissibility of evidence with the ultimate test governing committal for
    surrender?

[31]

As
    explained above, counsel for the appellant relied on s. 32(1)(c) of the Act in
    seeking the admission of the material on the extradition hearing.  That section
    provides for the admission of evidence adduced by the person sought for
    extradition if the evidence is reliable and relevant to the tests set out in
    subsection 29(1).  There was no dispute about the reliability of the material
    tendered by the appellant.  The admissibility of the material depended on its
    relevance to the test for committal found in s. 29(1)(a) of the Act.

[32]

Section
    29(1)(a) of the Act directs that the extradition judge should order committal for
    surrender if:

there is evidence admissible under this Act of conduct that,
    had it occurred in Canada, would justify committal for trial in Canada on the
    offence set out in the authority to be proceed

[33]

Ferras
holds that committal is justified under s. 29(1)(a) only if there is evidence
    of the existence of each element of the offence on which surrender is sought that
    would allow a reasonable, properly instructed jury to convict were it trying
    the case in Canada:
Ferras
, at para. 46.

[34]

The
    test for committal in
Ferras
requires the extradition judge to engage
    in a limited weighing of evidence to determine whether there is a plausible
    case.  Chief Justice McLachlin explained, at para. 54:

The ultimate assessment of reliability is still left for the
    trial where guilt or innocence are at issue.  However, the extradition judge looks
    at the whole of the evidence presented at the extradition hearing and
    determines whether it discloses a case on which a jury could convict.  If the
    evidence is so defective or appears so unreliable that the judge concludes it
    would be dangerous or unsafe to convict, then the case should not go to a jury
    and is therefore not sufficient to meet the test for committal.

[35]

Finally,
    in addressing the nature of the extradition judges power under s. 29(1) of the
    Act, the Chief Justice said, at para. 59:

Simply put, the extradition judge has the discretion to give no
    weight to unavailable or unreliable evidence when determining whether committal
    is justified under s. 29(1).

[36]

In
    providing for a limited weighing of the evidence,
Ferras
departed from
    earlier case law addressing the test for committal under s. 29(1)(a) of the Act. 
    The extent to which
Ferras
contemplated a weighing of the evidence was
    discussed at length by this court in
United States of America v. Thomlison
,
    2007 ONCA 42, 216 C.C.C. (3d) 97, leave to appeal to S.C.C. refused, [2007]
    S.C.C.A. No. 179; and
United States of America v. Anderson
, 2007 ONCA
    84, 218 C.C.C. (3d) 225, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No.
    159.  In
Anderson
, at para. 30, this court explained the limited
    weighing of the evidence enunciated in
Ferras
:

Evidence may be rendered so defective or so unreliable as
    to warrant disregarding it due to problems inherent in the evidence itself,
    problems that undermine the credibility or reliability of the source of the
    evidence, or a combination of those two factors.
I would stress, however, that
    it is only where the concerns with respect to the reliability of the evidence,
    whatever the source or sources, are sufficiently powerful to justify the
    complete rejection of the evidence, that these concerns become germane to the
    s. 29(1)(a) inquiry.
[Emphasis
    added.]

[37]

Counsel
    for the appellant submits that if the party sought for extradition tenders
    reliable evidence that has the potential to impeach the reliability of evidence
    in the ROC, the extradition judge is obliged to admit the evidence and consider
    it in the course of engaging in the limited weighing of the evidence contemplated
    in
Ferras
: see
United States of America v. Wilson
, 2011 BCCA
    514, 281 C.C.C. (3d) 15, at para. 37.  Counsel submits that the proffered
    evidence obviously had the capacity to impeach the credibility of Lee and Terry
    and, therefore, the reliability of parts of the ROC.  He argues that this was
    enough to warrant the admission of the evidence and its consideration along
    with the ROC in determining the question of committal under s. 29(1)(a).

[38]

I
    agree that there is a difference between the relevance of evidence to the test
    for committal under s. 29(1)(a) and, hence, its admissibility under s. 32(1)(c),
    and the ultimate question of whether the totality of the evidence justifies
    committal under s. 29(1)(a).
[4]

Wilson
, relied by the appellant, demonstrates the distinction.  In
Wilson
,
    the requesting state relied on summaries of conversations in which
    misrepresentations were made to the alleged victims of the fraud by employees
    of the person who was the subject of the extradition request.  At the
    extradition hearing, that person sought to introduce actual recordings of some
    of those conversations, alleging that the conversations would contradict the
    summaries in the ROC.  The extradition judge refused to admit the recordings
    into evidence.  The British Columbia Court of Appeal, at para. 37, held that the
    conversations should have been admitted and considered in determining the
    question of committal:

Where evidence is tendered that would tend to impeach the
    reliability of the ROC, the judge must consider that evidence and engage in a
    limited weighing of it to determine the sufficiency of the evidence for
    committal for trial.
That function is at the heart of a fair and
    meaningful judicial process.  [Emphasis added.]

[39]

The
    recordings tendered in
Wilson
went directly to the existence of the
    misrepresentations, the
actus reus
of the alleged fraud.  Depending on
    the content of those recordings, they could have rendered the parts of the ROC purporting
    to summarize the misrepresentations so unreliable as to warrant their outright
    rejection.  The approach of the British Columbia Court of Appeal in
Wilson
is consistent with that taken in
Anderson
, at paras. 44-45; see also
United
    States of America v. Pannell
, 2007 ONCA 786, 227 C.C.C. (3d) 336, at para.
    23.

[40]

This
    case is, however, quite different from
Wilson
.  Here, the question of
    the admissibility of the material tendered by the appellant under s. 32(1)(c)
    and the test for committal under s. 29(1)(a) merged for all practical purposes into
    a single question.  I will explain why.

[41]

The
    ROC contained direct evidence in the form of the anticipated testimony of Lee
    and Terry, as well as circumstantial evidence implicating the appellant in the
    arson/fraud charges.  The gun charge depended entirely on the direct evidence
    of Lee implicating the appellant in his possession of the gun.  Taken at face
    value, the evidence summarized in the ROC fully justified the appellants surrender
    on the arson/fraud charges and the gun charge.  The appellant could avoid
    surrender only by producing evidence that demonstrated the unreliability of
    some part of the ROC that was essential to committal.  He proposed to do so by
    adducing material that challenged the credibility of Lee and Terry.

[42]

The
    evidence tendered by the appellant had a single purpose.  The evidence was offered
    to show that, for the reasons identified in the material, Lee and Terry were
    not credible and that the parts of the ROC that relied on their anticipated evidence
    were, therefore, unreliable and could not justify a committal.  The success of
    the appellants argument depended entirely on whether the credibility-related factors
    identified in his material rendered the anticipated evidence of Lee and Terry so
    clearly unreliable as to warrant its outright rejection by the extradition
    judge.  This argument stood or fell on the material proffered by the
    appellant.  That material either did or did not establish the requisite level of
    unreliability.  This was not a case in which the extradition judge could not
    fully appreciate the potential impact of the evidence on the ROC when it was
    proffered by the appellant.

[43]

In
    my view, because of the nature of the evidence offered by the appellant and the
    argument made as to the potential relevance of that evidence to the question of
    committal, the admissibility question under s. 32(1)(c) and the ultimate
    question of whether committal was justified were essentially the same question
     did the proffered material demonstrate the manifest unreliability of the
    anticipated evidence of Lee and Terry as summarized in the ROC?  If the
    evidence did not have that effect, committal followed regardless of whether the
    evidence was said to be inadmissible, or admissible but inadequate to the task
    of demonstrating the manifest unreliability of evidence in the ROC.

[44]

While
    strictly speaking, I think the extradition judge was wrong in characterizing
    the issue as one of admissibility, that characterization did not prejudice the
    appellant in any way.  Had the extradition judge applied
Wilson
and admitted
    the evidence as tending to affect the reliability of the evidence in the ROC,
    he would still, on an application of
Thomlison
and
Anderson
, have
    determined that the proffered evidence did not warrant the rejection of any
    part of the ROC.  The result would have been exactly the result arrived at by
    the extradition judge  the committal for surrender of the appellant.

[45]

The
    approach taken by the extradition judge finds support in the analysis in
United
    States of America v. U.S.
,
2013 BCCA 483, 303 C.C.C. (3d) 541.  In that case, the subject of the
    extradition request sought to tender evidence on the extradition hearing demonstrating
    that for various reasons, the complainant, whose anticipated evidence was
    summarized and relied on in the ROC, was not a credible witness.  The Court of
    Appeal, at paras. 38-39, upheld the extradition judges refusal to admit that
    evidence:

The evidence the appellant sought to introduce at the
    extradition hearing did not contradict or wholly undermine the proposed
    testimony of S.S. [the complainant].  The proffered evidence simply raised
    circumstances that could cast doubt on the credibility of S.S.  The assessment
    of S.S.s credibility is for the trial in Louisiana.  It is not the function of
    the extradition judge to assess her credibility and determine whether the
    appellant is guilty.
Rather, the extradition judge is to determine
    whether there is sufficient evidence upon which a jury could return a guilty
    verdict.

If the evidence sought to be introduced demonstrated that the
    summarized evidence of S.S. was manifestly unreliable, then it would have been
    admissible to establish there was no plausible case against the appellant. The
    extradition judge considered the proffered evidence and concluded that none of
    it demonstrated S.S.s evidence to be manifestly unreliable.  In my view, the
    judge did not err in that regard.   [Emphasis added.]

[46]

In
U.S.
, as in this case, the nature of the evidence tendered was such that
    its relevance to the test for committal and the ultimate question of whether
    committal was justified merged into a single question.

B: Are
Thomlison
and
Anderson
wrongly
    decided?

[47]

In
    deciding whether to order the committal under s. 29(1)(a) of the Act, the
    extradition judge applied, as he was obligated to do, this courts judgments in
Thomlison
and
Anderson
.
In those cases, the court considered, at length, the extent to which the
    extradition judge could weigh the evidence in considering the question of
    committal.  In
Anderson
, at paras. 30-31, the court said:

Evidence may be rendered so defective or so unreliable as
    to warrant disregarding it due to problems inherent in the evidence itself,
    problems that undermine the credibility or reliability of the source of the
    evidence, or a combination of those two factors.
I would stress, however,
    that it is only where the concerns with respect to the reliability of the
    evidence, whatever the source or sources, are sufficiently powerful to justify
    the complete rejection of the evidence, that those concerns become germane to
    the s. 29(1)(a) inquiry.


In deciding whether defects in the case proffered by the
    requesting state are sufficiently serious to justify disregarding some part of
    the evidence relied on by the requesting state when conducting the s. 29(1)(a)
    assessment, an extradition judge must begin from the premise that the material
    properly certified by the requesting state pursuant to s. 33 is presumptively
    reliable for the purposes of the
Extradition Act
, including the s. 29(1)(a)
    assessment:  see
U.S.A. v. Ferras
,
supra
, at paras. 52-56. 
    The party resisting extradition
may rebut the presumption of reliability
    flowing from certification either by reference to the requesting partys own material
    or by calling evidence to demonstrate fundamental inadequacies or frailties in
    the material relied on by the requesting state:
see
U.S.A. v. Ferras
,
    at paras. 66-67. [Emphasis added.]

[48]

As interpreted in
Anderson
and
Thomlison
, s. 29(1)(a) provides for a limited review of the
    evidence.  Where the ROC on its face justifies committal for surrender, the subject
    of the extradition can successfully challenge that evidence only by showing that
    some part or parts of the ROC essential to committal should be completely
    rejected as unreliable.  It is not enough to show that there is good cause to
    doubt the reliability of some part of the ROC, or that evidence relied on in the
    ROC might well be eventually rejected at trial: see
Anderson
, at paras. 28, 46.

[49]

Applying
Anderson
to this case, the involvement of
Terry
    and Lee in the arson, their lies to the authorities, their plea bargains, their
    criminal antecedents, and their inconsistent statements were all matters that, while
    relevant to their ultimate credibility, could not justify the outright
    rejection of the parts of the ROC summarizing their anticipated evidence. 
    Those factors are the kinds of considerations that are inevitably left to triers
    of fact to assess based on
viva voce
evidence and a full hearing.  The
    extradition judges ultimate ruling, while wrongly characterized as an
    admissibility ruling, is faithful to the
ratio
of
Anderson
and
Thomlison
.

[50]

Counsel
    for the appellant submits that
Anderson
and
Thomlison
are
    wrongly decided in that they create an unworkable rule of admissibility for
    evidence tendered by the person sought for extradition, and they mischaracterize
    and unduly restrict the authority to weigh evidence under s. 29(1)(a) of the
    Act, recognized in
Ferras
as essential to maintaining the constitutionality
    of the extradition scheme set out in the Act.  Counsel urges the court to
    reconsider those cases.  I would reject this argument for several reasons.

[51]

First, and apart from
    the merits of
Thomlison
and
Anderson
, I do not
    see this as an appropriate case in which to reconsider the correctness of those
    decisions.  Everyone accepts that
Ferras
contemplates only a limited weighing of the evidence
    by the extradition judge.  To my knowledge, the furthest any case has gone in
    describing the extent to which the evidence should be weighed is to equate the
    extradition judges function with that of an appellate court when considering
    the reasonableness of a verdict under s. 686(1)(a)(i) of the
Criminal
    Code
:
see
United States
    of America v. Graham
, 2007 BCCA 345, 222 C.C.C. (3d) 1, at paras. 31-32,
    leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 467; and
United
    States of America v. Bennett
,
2014 BCCA 145, at para. 19.
[5]

In my view, even if one applies the
    unreasonable verdict standard to the evidence in the ROC, this committal order
    could not be successfully challenged.

[52]

The case against the
    appellant on the arson/fraud charges as described in the ROC is particularly
    strong.  That case does not depend, as counsel for the appellant suggested,
    only on the anticipated evidence of the accomplices, Terry and Lee.  Their
    evidence is supported by formidable evidence of the appellants strong
    financial motive and equally strong evidence that the fire was an inside
    job.  The circumstantial evidence points the finger of guilt at the
    appellant.  An appellate court, properly applying the unreasonable verdict standard,
    could not interfere with convictions on the arson/fraud charges based on the
    evidence in the ROC.

[53]

The case against the
    appellant is weaker on the gun charge.  That charge does depend on the
    uncorroborated evidence of Lee.  The timing of his revelation of the
    appellants involvement with the gun is clearly suspicious.  Lee said nothing
    to implicate the appellant in the gun charge until many months after he was
    charged and shortly before he was scheduled to go to trial on that charge.  He
    implicated the appellant in the arson at the same time.

[54]

Despite the obvious potential difficulties with the
    credibility of Lees evidence, a jury would be entitled in Canada to convict on
    his evidence even if unconfirmed.  If a jury did convict, and had received a proper
    caution as to Lees evidence, I do not see how an appellate court, based only
    on the obvious difficulties with Lees credibility, could reverse that
    conviction as unreasonable under s. 686(1)(a)(i).

[55]

Second, the appellants arguments in favour of overruling
Thomlison
and
Anderson
misread those cases.  The appellant reads
Thomlison
and
Anderson
as creating a rule of admissibility governing evidence
    tendered by the subject of an extradition request pursuant to s.
32(1)(c).  In reality, those cases are principally
    concerned with describing the extent to which the extradition judge can weigh
    evidence in deciding whether that evidence justifies committal under s.
    29(1)(a) of the Act.  Specifically, those cases are concerned with the extent
    to which material in the ROC supporting committal can be rejected on the basis that
    it lacks reliability.

[56]

Anderson
also
    speaks to a procedural question, namely, the manner in which the extradition
    judge can control the presentation of evidence by the subject of the
    extradition.
Anderson
makes it clear that the extradition judge
can
, where the circumstances dictate, take appropriate
    steps to determine both the substance of the proposed evidence tendered by the
    subject of the extradition request and the relevance of that proffered evidence
    to a matter that is properly the subject of consideration on the committal
    hearing.  These powers, which are not unique to an extradition judge, are not
    rules of admissibility but are rather procedures that a judge may implement to control
    proceedings in which questions of admissibility must be resolved.

[57]

When
Thomlison
and
Anderson
are properly understood as describing the limited
    weighing function assigned to the extradition judge under s. 29(1)(a), the
    appellants arguments that
those cases
create an unworkable rule of admissibility fall by the wayside and
    cannot warrant a re-examination of the correctness of those cases.

[58]

Third, I am not persuaded that
Thomlison
and
Anderson
should be overruled.  This court can overrule its own jurisprudence:
[6]
see
David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance
    Co.
(2005), 76 O.R. (3d) 161 (C.A.), leave to appeal to S.C.C. refused,
    [2005] S.C.C.A. Nos. 388-95;
Green v. Canadian Imperial Bank of Commerce
,
    2014 ONCA 90, 118 O.R. (3d) 641, at paras. 15 and following.
[7]
When asked to overrule a prior decision, this court looks both to the merits of
    that earlier decision and the policy implications of overruling that decision:
    see
Polowin
, at paras. 118-145.

[59]

I see nothing in the present legal landscape that
    would call for a reconsideration of this courts interpretation of
Ferras
in
Thomlison
and
Anderson
.  Leave to appeal to the Supreme Court of Canada was
    refused in both
Thomlison
and
Anderson
: [2007] S.C.C.A.
    No. 179, and [2007] S.C.C.A. No. 159, respectively.  Both cases have been
    repeatedly applied by this court without apparent difficulty: see
e.g.
,
United States of America v.
    Orphanou
, 2011 ONCA 612, 107 O.R. (3d)
    365, at para. 35;
Pannell
,
at para. 20
;
United States of America v. Michaelov
,
    2010 ONCA 819, 264 C.C.C. (3d) 480, at paras. 46-47, leave to appeal to S.C.C.
    refused, [2011] S.C.C.A. No. 37;
France v. Diab
, 2014 ONCA 374, at
    para. 129.  They have also been applied in other provinces: see
e.g.
,
United
    States of America v. M.M.
, 2012 QCCA 1142, [2012] Q.J. No. 5896, at paras.
    10 and 17;
United States of America v. Edwards
, 2011 BCCA 100, 271
    C.C.C. (3d) 471, at paras. 31-32.  Nor, in my view, have there been any
    developments, either in the related jurisprudence or legislatively, that would
    cast any doubt on the correctness of the approach articulated in
Thomlison
and
Anderson
.

[60]

As
    acknowledged in
Thomlison
, at paras. 39-45, the proper interpretation
    of
Ferras
is open to legitimate debate.  As noted above, at least two
    cases in the British Columbia Court of Appeal favour a somewhat broader power
    to weigh the evidence under s. 29(1)(a) of the Act, akin to the scope of
    appellate review of the reasonableness of a trial verdict under s. 686(1)(a)(i)
    of the
Criminal Code
:
Graham
, at paras. 31-32; and
Bennett
,
at para. 19.  For the reasons in
Diab
,
    at paras. 139-40, I favour the approach in
Thomlison
and
Anderson
. 
    That approach is more consistent with the nature of the extradition process and
    the role of the committal hearing in that process.  Extradition hearings are
    preliminary proceedings.  They are not trials and cannot be allowed to take on
    the features of a Canadian domestic trial.  A level of review of fact-finding
    that is appropriate to an after-the-fact assessment of an entire trial record,
    as contemplated by s. 686(1)(a)(i), is not applicable to the function performed
    by the extradition judge when determining the question of committal under s. 29(1)(a). 
    While an appellate court could well determine whether a reasonable trier of
    fact could believe the evidence of Lee and Terry having regard to the entirety
    of a trial record, I do not see how an extradition judge could make that kind
    of ultimate assessment of their credibility based on the limited paper record
    available at a committal hearing.

[61]

As the Chief Justice explained in
Ferras
, at paras.
    41-49, s. 7 of the
Charter
demands
    that an extradition judge weigh to some extent the evidence tendered at the
    committal hearing.  That weighing process is intended to ensure that persons
    are not surrendered for extradition on the basis of evidence that is
    demonstrably unreliable.  Surrender in those circumstances would offend the
    principles of fundamental justice.  The s. 7 protection does not, however,
    extend to preclude committal where there is reason to doubt the ultimate
    reliability of the evidence or its ultimate probative value.  Those questions are
    left for the tribunal responsible for determining guilt and innocence:
Ferras
, at para. 54.

[62]

I would not reverse
Thomlison
and
Anderson
.  I would dismiss the appeal from the committal
    order.


VI



the judicial review application

[63]

Counsel
    made only one argument in his oral submissions challenging the Ministers
    surrender order.  He submits that under the American sentencing regime, the
    appellant will receive a minimum sentence of 15 years on the fraud/arson
    charges plus a potential consecutive sentence of up to 10 years on the gun
    charge.  Counsel submits that the appellant, if convicted of the charges, will
    receive sentences totalling 20 years or more.  He compares that sentence to the
    three to five-year total sentence the appellant would likely receive if
    convicted of the comparable offences in Canada.

[64]

Counsel argues that surrender to face a sentence that is at
    least 15 years longer than the appellant would face in Canada must shock the
    conscience of the reasonable member of this community.  Surrender to face those
    sentences, therefore, violates the appellants rights under s. 7 of the
Charter
unless the Minister obtains assurances from the
    United States that any sentence imposed on the appellant would be consistent
    with comparable Canadian sentences.

[65]

This same submission was
    made to the Minister and he considered it in his reasons ordering the appellants
    surrender.  The Minister appreciated the submission and his obligation to
    consider whether a surrender order in the face of a potential sentence well in
    excess of any sentence that the appellant would face in Canada would violate s.
    7 of the
Charter
.  In
    making that determination and exercising his discretion, the Minister considered
    the relevant jurisprudence.  Many cases have addressed this exact issue.  The
    case law supports the Ministers conclusion that the potential sentence faced
    by the appellant in the United States, whether considered on its own or
    compared to the potential sentence in Canada, did not render his surrender
    contrary to the principles of fundamental justice.

[66]

I will not review the
    case law in detail.  Reference to three cases adequately demonstrates the
    reasonableness of the Ministers decision.  In
United States of
    America v. Jamieson
, [1996] 1 S.C.R.
    465, revg (1994), 93 C.C.C. (3d) 265 (Que. C.A.), a unanimous Supreme Court of
    Canada upheld an order surrendering a 26-year-old man to the state of Michigan
    to face a 20-year minimum sentence for trafficking in cocaine.  In
United
    States of America v. J.H.K.
(2002),
    165 C.C.C. (3d) 449 (Ont. C.A.), leave to appeal to S.C.C. refused, [2002]
    S.C.C.A. No. 51, this court upheld a surrender order in the face of a mandatory
    life sentence with no parole for 25 years on a charge of sexually assaulting a
    child.  In
U.S.
, the
    British Columbia Court of Appeal upheld a surrender order in the face of a
    mandatory minimum 25-year sentence on charges of sexually assaulting a child
    and making child pornography.

[67]

In the cases cited above
     and there are others  the difference between the sentence faced in the
    United States and the comparable sentence in Canada was greater than the no
    doubt substantial disparity that exists in this case.  In light of this
    jurisprudence, it cannot be said that the surrender of the appellant, without
    the requested assurances, would shock the conscience of the reasonably
    informed observer.  Surrender is not a violation of the appellants s. 7
    rights.  There is no other basis in this record upon which the court could
    interfere with the Ministers exercise of his discretion to order the surrender
    of the appellant.

[68]

I would dismiss the
    application for judicial review.

RELEASED: MAY 26 2014  DD

Doherty J.A.

I agree K. Feldman
    J.A.

I agree P. Lauwers
    J.A.





[1]
In addition to the evidence relating to Lee and Terry, the appellant also
    sought to introduce evidence of a statement and the Grand Jury testimony of
    Jason Varona.  The extradition judge did not admit that evidence.  That
    evidence is not relied on for the purposes of the appeal.

Counsel also sought to introduce documents obtained
    from the American authorities containing statements the appellant had made to
    the investigators to the effect that he was not an American citizen.  The
    extradition judge admitted this evidence and declined to commit on the related
    charge.  This evidence is not in issue on the appeal.



[2]
The extradition judges reasons are reported as
United States of America v.
    Aneja
, 2012 ONSC 1674.



[3]

United States of America v. Ferras; United States of America v. Latty
,
    2006 SCC 33, [2006] 2 S.C.R. 77.
Ferras
is discussed below.



[4]
I think the extradition judge also recognized the distinction.  He admitted
    certain material referable to the obstruct justice charge on the basis that it
    could have the effect of making the case on the obstruction of justice charge
    manifestly unreliable (at paras. 39-40).



[5]
An application for leave to appeal to the S.C.C. has been filed in
Bennett
.



[6]
The appellant, in keeping with this courts practice where a party seeks to
    overrule a prior decision, sought a five-judge panel.  That request was denied.



[7]
Applications for leave to appeal to the S.C.C. have been filed for the three
    cases decided in
Green
.


