COURT OF APPEAL

CANADA

PROVINCE OF QUEBEC

REGISTRY OF MONTREAL

BY THE COURT

[1]          The Appellant appeals from a judgment[1] rendered on August 10, 2011, by the Superior Court (the Honourable Carol Cohen), which dismissed its application for an order of committal of the Respondent, the Person sought in the extradition proceedings below.

[2]          The Appellant sought the extradition of the Respondent on the following ground. Between October 30^th and November 9^th, 2010, in the state of Georgia, United Sates of America, she had abducted her three children in contravention of a custody order awarding their custody to the father, without visitation rights or any further contacts with them in favour of the Respondent.

[3]          In so doing, the Appellant was relying on Subsections 280(1) (abduction of a person under sixteen years of age) and 282(1) (abduction in contravention of a custody order) of the Criminal Code:

280. (1) Every one who, without lawful authority, takes or causes to be taken an unmarried person under the age of sixteen years out of the possession of and against the will of the parent or guardian of that person or of any other person who has the lawful care or charge of that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

282. (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, in contravention of the custody provisions of a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person is guilty of  (a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or (b) an offence punishable on summary conviction.

[4]          In her reasons, the extradition judge considered the principle of “double criminality” as it applies in the law of extradition and held that the Appellant had failed to proffer evidence pertaining to certain essential elements of the offences created by these subsections.

[5]          According to the extradition judge, in respect of the offence of abduction of a person under sixteen years, the Appellant had failed to provide any evidence of (i) the taking or causing to be taken [of the children], without lawful authority, (ii) out of the possession of or against the will of [their guardian]. In respect of the offence of abduction in contravention of a custody order, the judge concluded that the Appellant had failed to provide evidence of the Respondent’s intent to deprive the guardian of the possession of the abducted persons.

[6]          In United States of America v. Ferras[2], the Supreme Court of Canada established as follows the standard upon which an extradition judge should evaluate evidence:

The evidence must be demonstrably able to be used by a reasonable, properly instructed jury to reach a verdict of guilty. If the evidence is incapable of demonstrating this sufficiency for committal, then it cannot "justify committal". The evidence need not convince an extradition judge that a person sought is guilty of the alleged crimes. That assessment remains for the trial court in the foreign state. However, it must establish a case that could go to trial in Canada. This may require the extradition judge to engage in limited weighing of the evidence to determine, not ultimate guilt, but sufficiency of evidence for committal to trial.[3]

[7]          It is an accepted fact that, in the words of Justice Doherty of the Ontario Court of Appeal, this judgment “turned a new jurisprudential page in the law of extradition”[4]. Nevertheless, the role of the extradition judge under Sections 24 and following of the Extradition Act[5] remains limited and cannot be allowed to change incrementally into the trying of the charges set out in the authority to proceed obtained by the requesting state.

[8]          In United States of America v. Thomlinson[6], Justice Moldaver of the Ontario Court of Appeal (as he then was) offered some apt comments of his own on this “new jurisprudential page”. He wrote:

[45]      In the end, when Ferras is read as a whole and against the backdrop of the s. 7 of the Charter issue - namely, the propriety of depriving persons of their liberty and security, by forcibly removing them to another country to stand trial on the basis of evidence that is either unavailable or manifestly unreliable - I am satisfied that the newly-acquired authority conferred on extradition judges is limited in the manner suggested by the respondent. Unlike the situation that existed post Shephard, Ferras now authorizes extradition judges to asses the availability and quality of the evidence that can legitimately be included in the “some evidence” basket for sufficiency purposes. In my view, that enables them to discard evidence that is not realistically available for trial and/or evidence that is manifestly unreliable, i.e. evidence upon which it would clearly be dangerous or unsafe to convict. It does not allow extradition judges to refuse to commit where there is “available and reliable” evidence in the “some evidence” basket upon which a reasonable jury, properly instructed, could convict.

[46]      In coming to that conclusion, I take comfort in the fact that nowhere in Ferras does the court set out, in explicit terms, the expanded role of the extradition judge suggested by the appellant[7]. On a matter of such importance, I believe that if the court had intended to effectively create a new and more stringent test for committal, such as “a reasonable prospect of conviction” or “a reasonable likelihood of conviction”, it would have said so explicitly.

[9]          In the Court’s respectful opinion, the extradition judge in this instance considered whether there was in essence “a reasonable likelihood of conviction” of the Respondent before concluding that the evidence did not reveal conduct that would justify her committal. In so doing, she placed an undue burden on the Appellant.

[10]       In Lopez v. Attorney General of Canada (United States of America)[8], the Court recently emphasized that according to Ferras, it is not for the extradition judge to weigh the probative value of the evidence. In that case, Justice Kasirer, acting as motions judge[9], also cited with approval these additional words of Justice Doherty in United States of America v. Anderson[10]:

[28]   U.S.A. v. Ferras, ( [2006] 2 S.C.R. 77 ), contemplates a limited qualitative evaluation of the evidence proffered by the requesting state.  As this court recently said in United States of America v. Thomlinson, [2007] O.J. No. 246 at paras. 45-46 (C.A.), U.S.A. v. Ferras, supra, does not envision weighing competing inferences that may arise from the evidence.  It does not contemplate that the extradition judge will decide whether a witness is credible or his or her evidence is reliable.  Nor does it call upon the extradition judge to evaluate the relative strength of the case put forward by the requesting state.  There is no power to deny extradition in cases that appear to the extradition judge to be weak or unlikely to succeed at trial.

[11]       Here, the following elements taken from the Appellant’s record of the case are nowhere refuted and must be taken as admitted:

1. Cobb County Superior Court records, which are available for trial, indicate that R.P. and M. have three natural offspring: X, age 14 years (date of birth - [...], 1996), Y, age 10 years (date of birth - [...], 2000), and Z, age 9 years (date of birth - [...], 2001). On June 19, 2008, the Superior Court of Cobb County awarded custody of the three children to P., with no visitation rights or any further contact with the children for M.. A certified copy of the Amended Final Order is attached Exhibit 1.

2. P. will testify that on October 30^th, 2010, he contacted the Cobb County Police Department to report that his three minor children were missing. P. suspected his ex-wife, M., of taking the kids, because she had been previously charged and convicted in Cobb County, Georgia, for taking the same three children. P. can testify that he gave no one authority to take his children this time. P. has been shown the booking photograph from M.'s prior arrest, attached as Exhibit 2, and can testify that this is M., his ex-wife, and the mother of his three children.

3. Georgia State Patrol Officer Brian Burchett (hereafter "Officer Burchett") can testify that on November 9, 2010, he arrested M. for driving under the influence, and in so doing, endangering the three minor children present in the car, in Gordon County, Georgia. Officer Burchett can identify the booking photograph of M., attached as Exhibit 2, as the person who was driving the car with the three minor children on November 9, 2010. As Officer Burchett was unaware at that time that the children were listed as missing, he requested a Gordon County Deputy to take control of the children until a relative of M.'s choosing could pick them up. Deputy Stafford of the Gordon County Sheriff's Office can testify that he transported the children to his department to await pickup by the children's relative.

4. Investigator Pryor Chesney (hereafter "Investigator Chesney"), of the Cobb County Sheriff's Office, can testify that he was notified, around the middle of December, 2010, that the three children were still missing. Investigator Chesney tracked the children to a Battered Women's Shelter in [Town A], Canada, by tracing the internet service provider logins of the two oldest children. Investigator Chesney then requested Mike McCrory (hereafter "Officer McCrory"), an officer of the Royal Canadian Mounted Police, go to the shelter to confirm whether M. and the three missing children were indeed present. Officer McCrory confirmed that the three missing children and M. were found in the shelter, in [Town A], Canada.

[12]       This notwithstanding, the extradition judge first opined that since the children apparently left of their own volition, a meaningful judicial assessment of the evidence as a whole was in order, and this appraisal of the case before her led her to conclude that it was insufficient to justify committal on the Subsection 280 (1) offence. In that regard, she stressed that the mere suspicion of the father was so defective and unreliable that it was not worthy of consideration.

[13]       The extradition judge failed, however, to discuss the admitted facts stated in the record of the case, namely that (i) the children, whilst in the sole custody of their father, went missing on October 30^th, 2010, and (ii) they were found in a car driven by the Respondent on November 9^th.

[14]       In R. v. Arcuri[11], discussing the role of the preliminary inquiry judge, which bears some similarities to that of the extradition judge pursuant to Section 24 of the Extradition Act, the Supreme Court of Canada had the following comments:

29 The question that arises in the case at bar is whether the preliminary inquiry judge’s task differs where the defence tenders exculpatory evidence, as is its prerogative under s. 541.  In my view, the task is essentially the same, in situations where the defence calls exculpatory evidence, whether it be direct or circumstantial. Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as by definition the only conclusion that needs to be reached is whether the evidence is true.  However, where the Crown’s evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty.

30 In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts.  Nor does she assess credibility.  Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for a properly instructed jury to infer guilt.  Thus, this task of “limited weighing” never requires consideration of the inherent reliability of the evidence itself.  It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

[15]       In our view, the circumstantial evidence offered by the Appellant and the reasonable inferences that could be drawn from it were sufficient to conclude that a reasonable jury properly instructed could return a verdict of guilt on this offence. By setting aside this evidence and these reasonable inferences, the extradition judge went beyond a limited qualitative evaluation of the evidence.

[16]       A review of her reasons indeed shows that amongst others, she assessed some witnesses' credibility such as the father's, she relied on passages from reports including hearsay evidence, and she referred to the statements of witnesses that had yet to be cross-examined. In the end, she evaluated the relative strength of the case put forward by the Appellant.

[17]       This was not her role. In Thomlinson, the Ontario Court of Appeal emphasized that:

[…] if there is some evidence, that is available for trial and not manifestly unreliable, on every essential element of the parallel Canadian crime, upon which a jury improperly instructed, could convict, the test for committal will have been met. In that regard, it matters not whether the case against the person sought is "weak" or whether the prospect for conviction "unlikely". The ultimate question of guilt and innocence is for the trial judge in the foreign jurisdiction.[12]

[18]       Similarly, turning to the Subsection 282 (1) offence, the extradition judge concluded that since the intent of the Respondent was to protect the children from an imminent danger, that is, their abusive father, she did not have the specific intent of depriving him of the possession of the children.

[19]       Yet, the record of the case of the Appellant established that the essential elements of the offence of abduction in contravention of a custody order were present:

·         The Respondent was the mother of the children;

·         Two of the children were under 14 at the time of the commission of the offence;

·         The father never gave anyone the right to take his children.

·         The Respondent was found twice with them, once in the United States and one month later, in Canada;

·         She was aware the father had full custody and she did not have the right to be in contact with them.

[20]       These facts permitted the reasonable inference that Respondent abducted the children in violation of a custody order, with the intent to deprive the father of their possession. From that standpoint, the Appellant offered a plausible record of the case. It should have been sufficient for the issuance of the order for committal.

[21]       The evidence that the extradition judge preferred over this was exculpatory in nature. It was aimed at contradicting the Appellant record of the case and laying the ground for a potential defence of the Respondent. This kind of assessment goes beyond the role of the extradition judge. This is not the purpose of the committal hearing[13].

[22]       It is, of course, possible that in due course a defence along the lines of Section 285 of the Criminal Code might be open to the Respondent[14]. Still, by taking such a factor into consideration at the committal stage of an extradition procedure, the judge went beyond what is allowed under Ferras and subsequent case-law.

[23]       The appeal must therefore succeed.

FOR THESE REASONS, THE COURT:

[24]       ALLOWS the appeal and SETS ASIDE the order of discharge;

[25]       ORDERS the committal of the Respondent.