



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Huang, 2015 ONCA 266

DATE: 20150416

DOCKET: C58817

Strathy C.J.O., Doherty and Gillese 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

BETWEEN

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

Respondent

and

Kai Guo Huang a.k.a. Yu Chen

Appellant

Ravin Pillay, for the appellant

Nancy Dennison, for the respondent

Heard: April 14, 2015

On appeal from the committal order of Justice Harriet E. Sachs
    of the Superior Court of Justice, dated April 23, 2014.

ENDORSEMENT

[1]

Kai Guo Huang (the appellant) appeals an order committing him for
    extradition to the United States to stand trial for the offences of murder and
    interfering with a dead human body.

[2]

The appellant is accused of committing murder in the United States in
    1998. A few days after the murder was committed, the appellants sister and
    brother-in-law (the Witnesses) allegedly gave police statements implicating
    the appellant in the murder. The Witnesses evidence is essential to the
    American murder prosecution. However, the Witnesses have since sworn affidavits
    denying that they made the police statements. They have returned to China and
    have no intention of testifying against the appellant.

[3]

The appellant argued below that he should not be extradited because the
    crucial evidence of the Witnesses is not available for his murder prosecution
    in the United States.

[4]

The United States (the Requesting State) certified that the Witnesses
    evidence is available for trial and gave details as to how.  One argument that
    it gave was that under a treaty it has with China  the Agreement Between the
    Government of the United States of America and the Government of the Peoples
    Republic of China on Mutual Legal Assistance in Criminal Matters (MLAT)  it
    could request that China compel the Witnesses to testify.

[5]

The appellant sought to introduce the expert opinion of a law professor from
    China who stated that under Chinese law, authorities do not have the power to
    compel the Witnesses to testify in the American proceedings.

[6]

The extradition judge held that it was not the role of an extradition
    judge to conduct an inquiry into foreign law to determine whether MLAT will
    enable the Requesting State to obtain the Witnesses evidence.  She found that
    the Witnesses evidence was available for the murder prosecution and ordered
    the appellants committal.

[7]

On appeal, the appellant argues that the extradition judge erred in
    failing to admit the expert opinion.  He further argues that the committal was
    unreasonable.  In this regard, he says that whether the Witnesses can be
    compelled to testify under the MLAT depends on the laws of China.  The expert
    opinion was that Chinese law did not permit Chinese authorities to compel the
    Witnesses to testify at the foreign trial.  Even setting aside the expert
    opinion, he says that the Requesting State has failed to show that the
    Witnesses evidence is available for trial.  Therefore, he contends, the
    Witnesses evidence is unavailable and there is insufficient evidence to
    justify his committal.

[8]

We do not agree.

[9]

It is not the role of the extradition judge to determine issues of
    foreign law, absent exceptional circumstances. In
McVey (Re);
McVey
    v. United States of America
, [1992] 3 S.C.R. 475, at pp. 528-29, a
    majority of the Supreme Court held that, except possibly in rare cases such as
    political offences, the extradition judge is not concerned with foreign law at
    all and requiring proof of foreign law in the extradition hearing beyond the
    documents supplied with the requisition could cripple the operation of the
    extradition proceedings.

[10]

That
    reasoning applies in the present case.

[11]

The
    Requesting State relied on the MLAT in asserting that the Witnesses evidence
    is available for the prosecution. The principles of international comity
    require this court to defer to the Requesting States interpretation of its
    treaty with China. The extradition judge is not in a position to determine
    whether a request under the MLAT will ultimately be successful.  It is beyond
    the scope of the extradition hearing to determine the extent to which Chinese
    authorities, under local Chinese law, could compel the Witnesses to testify in
    the American prosecution.

[12]

Accordingly,
    the extradition judge made no error in refusing to conduct an inquiry into
    foreign (Chinese) law to determine whether the MLAT will allow the Requesting
    State to obtain the Witnesses evidence.

[13]

The
    appeal is dismissed.

G.R.
    Strathy C.J.O.

Doherty
    J.A.

E.E.
    Gillese J.A.


