Dutil, Schrager, Dumas (ad hoc)
Appeal from a Superior Court judgment dismissing an application for disclosure of evidence and ordering the appellant’s committal to custody to await surrender. Allowed in part.
The United States seeks the extradition of the appellant to answer charges corresponding under Canadian law to the offences of laundering the proceeds of crime and conspiracy to launder the proceeds of crime set out in ss. 462.31 and 465(1)(c) of the Criminal Code (R.S.C. (1985) c. C-46) (Cr. C.)). The proof of identity on which the request for extradition is based was obtained by an American undercover officer. Among other things, the appellant seeks to obtain the disclosure of documents relating to this officer’s involvement in the Canadian investigation, including the authorizations referred to in the extradition record that were obtained to organize meetings.
At the committal stage, a subject of a request for extradition is entitled to the disclosure of the evidence on which the requesting State relies to make out a prima facie case of his or her guilt, unless the person can show, with an air of reality, the existence of a violation of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, app. II, No. 44, Schedule B, Part I). In this case, the extradition judge has the discretion to order the disclosure of additional information. Moreover, the extradition record must contain enough information to determine the admissibility of the evidence gathered in Canada under s. 32(2) of the Extradition Act (S.C. 1999, c. 18). In this respect, it is sufficient to raise a doubt or reasonable possibility that the evidence gathered does not comply with the evidentiary requirements.
In this case, the extradition records do not contain enough information to determine the admissibility under Canadian law of the identification evidence gathered in Canada by the undercover officer. The information in the records does not reveal the origin or nature of the authorizations or the manner in which they were obtained. These authorizations and the documents and information on which they are based are particularly relevant to determining the admissibility of the evidence gathered by the American officer, since s. 462.31(3) Cr. C. provides that some actions must be performed under the direction of a Canadian peace officer in order not to constitute an offence of laundering the proceeds of crime. The fact that the judge failed to assign any significance to these relevant considerations in exercising her discretion justifies the Court exercising its jurisdiction to allow the appeal. The case is referred back to the Superior Court for a new hearing on the order of committal.
*Résumé réalisé par SOQUIJ
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