Décision

[1]           Concerning Messrs Caplin and Barnaby's applications for judicial review of the Minister's orders to surrender them to the appropriate authorities in the State of New Hampshire;

[2]           For the reasons of the Chief Justice, with which Levesque and Savard, JJ.A. concur, the Court:

IN THE FILE OF ANTHONY BARNABY (500-10-005141-120):

[3]           GRANTS Mr Barnaby's application and QUASHES the Minister's order to extradite;

IN THE FILE OF DAVID CAPLIN (500-10-005210-123):

[4]           DISMISSES Mr Caplin's application and MAINTAINS the Minister's order to extradite.

[5]           The Minister of Justice of Canada has signed extradition orders ordering the surrender of Applicants David Caplin and Anthony Barnaby to the United States of America on the following offences:

·         First degree murder in connection with the death of Charlene Ranstrom by acting together as an accomplice to another, in violation of New Hampshire Revised Statutes Annotated, sections 626:8 and 630:1-a, I(a);

·         First degree murder in connection with the death of Brenda Warner by acting together as an accomplice to another, in violation of New Hampshire Revised Statutes Annotated, sections 626:8 and 630:1-a, I(a);

·         Second degree murder in connection with the death of Charlene Ranstrom by acting together as an accomplice to another, in violation of New Hampshire Revised Statutes Annotated, sections 626:8 and 630:1-b, I(b); and

·         Second degree murder in connection with the death of Brenda Warner by acting together as an accomplice to another, in violation of New Hampshire Revised Statutes Annotated, sections 626:8 and 630:1-b, I(b).

[6]           Applicant David Caplin was charged on those offences in 1990 but has never been tried. Prior to his trial, the defence filed motions to exclude the forensic analysis of the pubic hairs and Mr. Caplin’s testimony from a pretrial hearing in Applicant Barnaby’s case. The motions were granted. The prosecution appealed to the New Hampshire Supreme Court. A stay of proceedings was granted pending the outcome of the appeal. The trial judge’s decision to exclude the evidence was affirmed. As a result, the prosecution entered a nolle prosequi against Applicant Caplin.

[7]           Applicant Barnaby, on the other hand, as the Minister of Justice acknowledges, proceeded to trial on those charges on three occasions, in 1989 and 1990. Each trial ended in a hung jury. At the conclusion of the third trial, the prosecution entered a nolle prosequi (a dismissal of charges) against Mr. Barnaby.

[8]           In 2010, the New Hampshire State authorities reopened the investigation into the alleged crimes and in 2011, evidence seized from the crime scene was submitted for DNA testing not available at the time of the initial investigation. The profile of Mr. Caplin was identified. Witnesses were again contacted. They would have provided additional information, although nothing in the file indicates that that information would not initially have been available from those same witnesses.

[9]           There is no need to deal with Applicant Barnaby’s request for disclosure of the evidence presented at his three previous trials. The fact is that the new DNA evidence does not link him to the crimes. In these circumstances, the only issue is whether a fourth trial would constitute an abuse of process in his case.

[10]        The Minister of Justice was provided with a letter from Mr. Mark L. Sisti, the American counsel who represented him at his previous trials in 1989 and 1990. Regarding Mr. Sisti’s letter, the Minister states the following:

[that] a fourth jury trial, more than 20 years after the alleged murders, would be unprecedented in the State of New Hampshire and oppressive. He [Mr Sisti] submits that there are no facts, witnesses or circumstances which would make the fourth trial substantially different from the previous trials. According to Mr. Sisti, a fourth trial would be prejudicial to Mr. Barnaby because the witnesses’ memories will have faded due to the passage of time and the defence investigator has died. He points out that the crime scene is no longer preserved and “[a]lmost every police officer involved in this case has retired, moved or passed away”. Finally, Mr. Sisti states that the passage of time is also prejudicial to Mr. Barnaby because his youth weighed heavily in his favour at his previous trials when the juries considered the voluntariness of his statements to police. Neither you nor Mr. Sisti has addressed the new evidence summarized in the Record of the Case relating to the witnesses who are now willing to testify against Mr. Barnaby. 

[11]        As previously mentioned, the witnesses in question are not new witnesses. It simply appears that they would now be “willing to testify”. It is suggested by the Minister that Mr. Barnaby test their evidence in the new proceedings, i.e., his fourth trial.

[12]        As indicated by the Supreme Court of Canada in Lake v. Canada (Minister of Justice):

[22] After an individual has been committed for extradition, the Minister reviews the case to determine whether the individual should be surrendered to the requesting state. This stage of the process has been characterized as falling “at the extreme legislative end of the continuum of administrative decision-making” and is viewed as being largely political in nature […] Nevertheless, the Minister’s discretion is not absolute. It must be exercised in accordance with the restrictions set out in the Extradition Act, as well as with the Charter.

[…]

[41] Reasonableness does not require blind submission to the Minister’s assessment; however, the standard does entail more than one possible conclusion. The reviewing court’s role is not to reassess the relevant factors and substitute its own view. Rather, the court must determine whether the Minister’s decision falls within a range of reasonable outcomes.To apply this standard in the extradition context, a court must ask whether the Minister considered the relevant facts and reached a defensible conclusion on those facts.[…][1]

[13]        There is simply no precedent for submitting an accused to the stress and tribulations of a fourth trial on the same charges, particularly when the only true “new evidence”, in this instance, the DNA evidence, does not in any way implicate him and three previous juries did not once find him guilty.

[14]        The issue, therefore, is whether a fourth jury trial in these exceptional circumstances would, in the absence of any true new evidence linked to Applicant Barnaby, constitute an outrage, in his case, to the community’s sense of fair play and decency, so as to amount to an affront to the fundamental principles of justice applicable in both jurisdictions of concern, and thus constitute an abuse of process. The prosecution is not, after all, expected to go after an accused until it finds a judge or jury willing to convict.

[15]        With due deference to the Minister, in the present case, a fourth trial would be contrary to the protection afforded by the Charter and his decision to extradite does not constitute a defensible conclusion based on the alleged new facts in the case of Applicant Barnaby.

[16]        In the case of Applicant Caplin, however, I see no ground for interfering in the Minister’s decision to extradite him to the United States. 

[17]        For the reasons stated above, I propose to grant Applicant Barnaby’s Application for judicial review and to quash the Minister’s extradition Order. In the case of Applicant Caplin, I would deny his application and maintain the Minister’s extradition Order.