



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

A non-publication and
    non-broadcast order in this proceeding concerning the identity of and any
    information that would disclose the identity of any party, witness, or other
    person mentioned in this decision, has been made and continues.

The president further directs that the
    entire file in this appeal, including all materials filed by or on behalf of
    the parties, all records, exhibits or other material, of any nature,
    transmitted to the Court of Appeal for Ontario from the lower court, all
    correspondence, memoranda, or any other documents or records of any kind
    contained within the appeal file, be sealed and not made available to any
    person without an order of this court.

Portions of this judgment have been
    redacted by order of the Court.




COURT OF APPEAL FOR ONTARIO

CITATION: United States v. A.B., 2017 ONCA 119

DATE: 20170213

DOCKET: C58068 and C60934

Sharpe, Rouleau and Benotto JJ.A.

IN THE MATTER OF an appeal of a committal order pursuant
    to s. 49 of the
Extradition Act
, S.C. 1999, c. 18

AND IN THE MATTER OF an application for judicial review
    pursuant to s. 57 of the
Extradition Act
, S.C. 1999, c. 18

BETWEEN

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

Respondent

and

A.B.

Applicant

Nancy Dennison, for the respondent

Julie Santarossa, for the appellant

Heard and released orally: February 3, 2017

On appeal from the committal order of Justice
of the Superior Court of Justice,
    dated
and on application for
    judicial review of the surrender order of the Minister of Justice, dated
.

ENDORSEMENT


[1]

The appellant appeals his committal for extradition to the United
    States. He also seeks judicial review of the Ministers order that he be
    surrendered to the United States. For convenience we refer to him throughout as
    the appellant.

Committal

[2]

At the committal hearing, the Attorney General relied on the evidence of
    two alleged co-conspirators. One of those co-conspirators is now deceased. The
    appellant submits that the evidence of the other is manifestly unreliable on
    the theory that the co-conspirator learned that the appellant was a
    confidential informer and framed the appellant in retaliation and to absolve
    himself from the alleged offense.

[3]

The committal judge did not err in concluding that the question of the
    reliability of the co-conspirators evidence is a matter for the courts of the
    receiving jurisdiction. We are not persuaded that the death of the
    co-conspirator materially affects the committal decision. Cooperation with the
    police to obtain a more lenient sentence does not render a witnesss evidence
    manifestly unreliable. It is merely a factor that may be taken into account
    is assessing the reliability of the evidence, a matter that must be left to the
    trier of fact.

[4]

Moreover we agree with the respondent that the appellants set up
    theory is largely based on speculation.

Ministers surrender order

s. 7 of the Charter

[5]

The Minister concluded that the possible sentence the appellant would
    face in the United States would not shock the conscience and violate his s. 7
Charter
rights. In our view, that conclusion was reasonable. The
    offense with which the appellant is charged is a serious one
in
    Canada. While he may face a minimum
sentence in the United States, it has consistently been held that sentences of
    that length for similar offenses do not shock the conscience.

[6]

The Minister determined that it would be open to the US courts to
    consider the appellants cooperation with the police in Canada as a mitigating
    factor. Moreover there is no guarantee of a reduction in sentence in Canada for
    cooperation with the police with respect to other matters prior to the commission
    of the offense for which the individual is convicted.

s. 6(1) of the Charter

[7]

The Minister considered all of the relevant
Cotroni
factors.
    His decision that extradition was a reasonable limit on the appellants s. 6(1)
Charter
rights was justified attracts deference in this Court and was
    reasonable. The Minister recognized that while the appellant could be tried in
    Canada, there were several valid reasons for deferring to the on-going
    proceedings in the United States. The investigation was conducted entirely by
    the US law enforcement authorities; the physical evidence in the United States;
    most prosecution witnesses reside in the United States; other co-accused have
    already been convicted and sentenced in the United States; and it is in the
    interests of justice that all co-accused should face justice in the same
    jurisdiction.

[8]

The Minister gave full consideration to the appellants contention that
    he would call witnesses residing in Canada and explained why that was not
    sufficient to amount to a
Charter
violation.

[9]

Evidence that the appellant was a confidential informer is not
    exculpatory and there was no suggestion that he was acting as a police agent at
    any time let alone at the time of this alleged conspiracy.

Disposition

[10]

Accordingly the appeal from committal is dismissed and the application
    for judicial review of the Ministers order of surrender is dismissed.

Robert J. Sharpe
    J.A.

Paul Rouleau
    J.A.

M.L. Benotto
    J.A.


