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United States of America c. Sheppard

2013 QCCS 5260

JC00B1

 
SUPERIOR COURT

 

CANADA

PROVINCE OF QUEBEC

DISTRICT OF

MONTREAL

 

No:

500-36-006480-126

 

 

 

DATE:

OCTOBER 22, 2013

______________________________________________________________________

 

IN THE PRESENCE OF:

THE HONOURABLE

GUY COURNOYER, S.C.J.

______________________________________________________________________

 

 

THE UNITED STATES OF AMERICA

Applicant

v.

KYLE SHEPPARD

            Respondent / Person Sought

 

______________________________________________________________________

 

JUDGMENT [1]

______________________________________________________________________

 

 

I - Introduction

[1]           The United States of America is seeking an order for the committal of Kyle Sheppard. He is sought for prosecution for the Canadian offence of murder, contrary to sections 229 and 235 of the Criminal Code, which correspond to the alleged conduct.

[2]           The Record of the Case (ROC) reads as follows:

The United States requests the extradition of Kyle Sheppard to stand trial. The United States prosecution will be based on the evidence summarized as follows:

1. Clarence Walton, grandfather of Katie Sheppard, and County records, which will be introduced into evidence at trial, will show that Kyle and Katie Sheppard were husband and wife. Walton is expected to testify that the couple lived in a home at [...], in Toledo, Lucas County, Ohio. Clarence Walton has viewed the attached photograph and identified it as a photograph of Kyle Sheppard.

2. Gary Resnick. the owner and manager of Lasalle Cleaners, a dry cleaning business, is expected to testify that he employed Katie Sheppard, and that she failed to report to work on Friday, November 2, 2012. Resnick is expected to testify that this was unusual for Katie who was a reliable employee. Resnick contacted Stephanie Plocek, a friend of Katie Sheppard to see if she was ok.

3. Stephanie Plocek is expected to testify that she was a friend of Katie Sheppard’s and that she became very concerned about Katie’s safety after Resnick’s call, and on Friday, November 2, met Walton, at the Sheppard’s residence on [...] to check on her. Katie Sheppard’s car was in the rear driveway, and the house was locked, there was no answer at the door. Plocek is expected to testify that Kyle Sheppard’s car was not at the residence. Plocek is further expected to testify that she had attempted to contact Katie all day by telephone and text and had not heard from her. Plocek is expected to testify that it was very unusual for Katie to be out of touch for that period of time, and that she became very concerned when she did not respond while they were at the house and contacted the Toledo Police to check on her safety.

4. Officer Onstead of the Toledo Police Department is expected to testify that on November 2, 2012, at approximately 10:20 p.m. on a “check the safety” call. Officer Onstead will testify that he went to the Sheppard’s residence and was able to gain entry to the front porch. Officer Onstead located a body wrapped in a blanket on the front porch, with a belt around her neck. Detective Jeff Clark, of the Toledo Police Department, can testify that he is the lead investigator on the case, was present at the scene and the autopsy, and was able to identify Katie Sheppard through a Bureau of Motor Vehicles photo and Katie’s driver license which was recovered at the crime scene.

5. Detective Lenhardt of the Toledo Police Department Scientific Investigation Unit (“SIU”) is expected to testify that he also went to the Sheppard’s residence on November 2, 2012 at approximately 10:45 p.m. Lenhardt will testify that members of the SIU collect evidence at crime scenes, including taking photographs, fingerprints, DNA evidence, and other trace evidence. Lenhardt is expected to further testify that he observed what appeared to be blood dripping from Katie Sheppard’s nose. Detective Lenhardt is expected to testify that the body appeared to have been posed, with the hands folded across each other. Lenhardt observed swelling and discoloration on Katie Sheppard’s head.

6. Laura Lykowski is expected to testify she lives across the street from the Sheppards on [...] and that she left for work on November 2, 2012 and observed that Katie Sheppard’s car was parked in the rear of the house. She is expected to say Kyle Sheppard’s car was not at the home when she left at about 9:00 a.m. Lykowski will further testify that she told the police it was unusual for Kyle’s Jeep not to be at the home when the police were there at about 11:00 p.m. on November 2, 2012.

7. Work records from Mobis, an auto parts supplier in Toledo, Ohio, will demonstrate that Kyle Sheppard was employed as an assembler at that location, and was scheduled to work on Friday, November 2, 2012 at 5:30 a.m. A representative from Mobis could testify that a recorded voice message from Kyle Sheppard was received at Mobis, at 4:47 a.m. on November 2, 2012, which indicated Kyle Sheppard would not be in to work that day.

8. An agent from the U. S. Border Patrol can testify that records show Kyle Sheppard left the United States and entered Canada from the Detroit, Michigan area on November 2, 2012 at 9:53 am.

9. Nate Resnick, a co-worker of Katie Sheppard’s is expected to testify that in November 2012, he had a relationship with Katie Sheppard and had written her several notes expressing his feelings for her. Detective Lenhardt is expected to testify that he found these notes inside a purse in a drawer in the bedroom on [...].

10. Telephone records obtained pursuant to a court order, are expected to show that a a phone, identifiable by records as belonging to Kyle Sheppard, sent a text to a number which Nate Resnick will testify is his telephone number. Nate Resnick is expected to testify that the text contained the following statement, “Just wanted to let you know hope you had a good night too why my dick and balls where(sic) Katie’s mouth u little bitch.” Records show this text was sent at 12:18 a.m. on November 2, 2012.

11. Police Constable P. Tessier (“Constable Tessier”), with the Saguenay Police in Quebec is expected to testify that on Sunday, November 4, 2012 he responded to the Motel Princesse, 2166 des Etudiants, in Saguenay, Canada in response to a man, later identified as Kyle Sheppard, who wished to turn himself in to police. Constable Tessier is expected to testify that Sheppard requested to ask him a question, but that prior to doing so, he read Sheppard his “Rights upon Arrest or Detention and Police Warning” before speaking with Sheppard. Constable Tessier is expected to say that Sheppard told him that he had killed his wife by strangulation Thursday night. Sheppard said he had been with his wife since high school, and married for four years. He said their relationship had been up and down the last year and that she had been cheating on him.

12. Police Constable Mario Turcotte (“P.C. Turcotte”), also with the Saguenay Police, is expected to testify he also spoke with Kyle Sheppard on November 4, 2012. P.C. Turcotte also read Sheppard his ‘Rights Upon Arrest or Detention and Police Warning”. P.C. Turcotte is expected to say Sheppard understood his rights and agreed to speak to P.C. Turcotte. Sheppard told him the he had already spoken to Michael Obern, his lawyer and was fine with it. P.C. Turcotte is expected to testify that Sheppard told him he strangled his wife and that their relationship had been up and down. Sheppard stated he was trying to control her because he suspected she was cheating on him. P.C. Turcotte is expected to testify that Sheppard further stated that he found out on Thursday, by looking in her cellphone that she was actually cheating on him.

13. Dr. Maneesha Pandey, a Deputy Lucas County Coroner, is expected to testify that she is a forensic pathologist and has been recognized as an expert in forensic pathology in at least five counties in Ohio, including Lucas County Common Pleas Court, as well as U.S. Military Court. Dr. Pandey is further expected to testify that she has performed over 2,000 autopsies during her career as a forensic pathologist. On November 3, 2012 she performed an autopsy on the body of Katie Sheppard. As a result of that autopsy, she will testify that Katie Sheppard died from ligature strangulation, and that her death was a homicide.

[3]           The respondent made three submissions to the Court:

-       The statements he made upon arrest - should be excluded on the basis that
(a) they are unrecorded utterances, (b) there is a reasonable doubt as to their voluntary nature and finally, (c) they should be excluded pursuant to paragraph 24(2) of the Charter on the basis of a violation of his s. 10 b) rights;

-       He should be discharged or, alternatively committed only upon a charge of manslaughter;

-       The extradition proceedings should be stayed until the American police investigation is completed.

[4]           The Court concludes that an order for the committal of Kyle Sheppard for murder should be issued.

II - The right to counsel: urgency and reasonable opportunity to consult

[5]           Contrary to the initial position presented by the requesting state, the Court has jurisdiction to entertain an application under s. 24(2) of the Charter for the exclusion of evidence obtained in contravention of the Charter.[2]

[6]           The evidence establishes a blatant disregard for the s. 10 rights of the respondent. While the respondent was properly cautioned, the police failed to provide him with a reasonable opportunity to exercise his right to counsel before first questioning him. 

[7]           The evidence before the Court is clear on this point and does not need to be reviewed: the police interrogated the respondent in the police cruiser before he was given a reasonable opportunity to consult with counsel at the police station.

[8]           In R. v. Manchulenko,[3] Watt J.A. of the Ontario Court of Appeal summarised this area of the law:

[62]      The principles that require consideration in connection with this first ground of appeal are those that address the scope of the right to counsel, especially those that consider the rehabilitative effect of a Charter-compliant “fresh start” after an earlier constitutional misstep. A second stream of precedent explains the scope of what might be termed the “nexus” requirement in s. 24(2) that borders the evidence that may be excluded by the terms “obtained in a manner”.

[63]      The purpose of the right to counsel is to allow a detainee not only to be informed of his rights and obligations under the law but, equally, if not more importantly, to obtain advice about how to exercise those rights: R. v. Manninen, [1987] 1 S.C.R. 1233 at pp. 1242-1243; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 26.

[64]      Section 10(b) of the Charter has two components. The first, the informational component, requires and ensures that the detainee is advised of his or her rights to counsel. The second, the implementational component, requires that the detainee be given a reasonable opportunity to exercise his or her right to counsel, should she or he decide to do so. Implicit in the implementational component is a duty on the police to hold off questioning or requiring the detainee to participate in investigative procedures, or eliciting evidence until the detainee has a reasonable opportunity to consult counsel: Sinclair, at para. 27.

[65]      The duties of the police under the implementational component of s. 10(b), however, are not absolute. Unless the detainee invokes the right to counsel and is reasonably diligent in exercising it, the correlative duties of the police to provide a reasonable opportunity for the detainee to exercise the right, and to refrain from eliciting evidence, will either not arise in the first place or will be suspended: Sinclair, at para. 27; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 33; R. v. Tremblay, [1987] 2 S.C.R. 435, at p. 439; and R. v. Black, [1989] 2 S.C.R. 138, at pp. 154-155.

[66]      When a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue contact with a lawyer, s. 10(b) requires the police to explicitly inform the detainee of his or her right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning or otherwise eliciting evidence until then: Willier, at para. 32; Prosper, at p. 274. What amounts to reasonable diligence in the exercise of the right to contact counsel depends on the context, and requires a fact-specific inquiry into all the circumstances: Willier, at para. 33.

[Emphasis added]

[9]           In this case, the implementational component was not complied with.

[10]        The requesting state submits that the failure to provide the respondent with a reasonable opportunity to consult counsel was justified by the urgency of the situation faced by the police. The Court rejects this submission because it is not supported by the evidence. 

[11]        The evidence presented is neither credible nor reliable. The police officers failed to keep appropriate notes, their oral testimony was unreliable and there was no reliable evidence establishing the supposed urgency.

[12]        With respect to police notes taken in this case, the Court is surprised - to say the least - by the nonchalant attitude of the officers who testified. This might be explained either by the relative inexperience of the officers involved or their lack of knowledge of the fundamental principles at stake. Both explanations are troubling.

[13]        In Schaeffer v. Ontario (Provincial Police)[4] the Ontario Court of Appeal examined the principles concerning acceptable note-taking practises expected of diligent police officers. 

[14]        The issue before the Ontario Court of Appeal was whether “police officers who are involved in incidents attracting the attention of the SIU [Special Investigations Unit] are […] entitled to obtain legal assistance in the preparation of their notes regarding the incident [?]”.[5]

[15]        In order to answer the question, Sharpe J.A. explored thoroughly the principles relating to note-taking by police officers. He wrote:

Police officers’ duty to make notes

[66]      Section 9 reinforces the duty of officers “to complete in full the notes on the incident in accordance with his or her duty” [emphasis added]. Applying the contextual and purposive approach that is informed by the presumption of coherence, I conclude that it would be wrong to interpret s. 7(1) in a manner that would undermine or contradict, the duty imposed by s. 9.

[67]      It is common ground on this appeal that the duty to create independent and contemporaneous notes of events that transpire during a police officer’s ordinary duties is fundamental to the professional role of a police officer. In his Report of the Taman Inquiry (Library and Archives Canada, 2008) at p. 133, Commissioner Roger Salhany, Q.C. aptly described note-taking as “an integral part of a successful investigation and prosecution of an accused” and stated that “the preparation of accurate, detailed and comprehensive notes as soon as possible after an event has been investigated is the duty and responsibility of a competent investigator.”

[68]      OPP Orders confirm officers’ professional obligation to take “concise, comprehensive particulars of each occurrence” during an officer’s tour of duty: Ontario Provincial Police Orders, June 2009 Revision, at s. 2.50.3. Police officers are trained that their “[n]otes must contain your independent recollections providing an accurate and complete account of police observations and activities” and that “entries are to be made during or as close to the investigation as possible”: Ontario Police College, Basic Constable Training Program (Student Workbook—Evidence) 2008, at pp. 2, 8.

[69]      Reliable independent and contemporaneous police officer notes are central to the integrity of the administration of criminal justice. Police officers’ notes provide the basis for laying charges and they provide Crown Attorneys with a record upon which to base decisions regarding the prosecution of the case. Furthermore, in the post-Stinchcombe era of mandatory Crown disclosure, police notes provide the accused and his or her counsel with vital information to inform decisions as to how to plead and how to conduct of the defence.

[70]      The police officer’s notes are also used to assist the officer in testifying at trial. When used for that purpose, it is vitally important to the reliability and integrity of the officer’s evidence that the notes used record the officer’s own independent recollection. In R. v. Green, [1998] O.J. No. 3598 (O.C.J. (Gen. Div.) at para. 20, Malloy J. stated:

An officer’s notes perform a valuable function at trial. It is usually many months, sometimes years, from the time of an occurrence to the time that the officer is called upon to testify at trial. Without the assistance of notes to refresh his or her memory, the evidence of the officer at trial would inevitably be sketchy at best. If the officer’s notes are prepared without any indication of which is the officer’s independent recollection and which is somebody else’s recollection, there is every likelihood that that officer at trial will be “refreshing” his or her own memory with observations made by someone else. In effect, the officer will be giving hearsay evidence as if it was his or her own recollection rather than the observations of somebody else written into the notes without attribution.

[…]

[72]      I agree with the submission of the Criminal Lawyers Association that the problem posed by a police officer seeking legal assistance before preparing his or her notes is not that the lawyer would do anything improper. Instead, the concern is that seeking legal advice is geared to the officer’s own self-interest, or the interests of fellow officers, rather than the officer’s overriding public duty. Police officers are public office holders who have “a general duty to prevent and investigate crime [that is] recognized at common law and given statutory force” by the PSA in s. 42: R. v. Simpson (1993), 12 O.R. (3d) 182 (Ont. C.A.), at p. 489. Note-taking is a core element of that public duty. Focusing on the officer’s private interests rather than the interest of the SIU investigation is inconsistent with the officer’s public duty.

[Emphasis added]

[16]        The following principles may be extracted from Schaeffer:

-       Reliable, independent and contemporaneous police officer notes are central to the integrity of the administration of criminal justice;

-       The obligation to create independent and contemporaneous notes of events that transpire during a police officer’s ordinary duties is fundamental to the professional role of a police officer;

-       Note-taking is an integral part of the successful investigation and prosecution of an accused. It is a core element of a police officers’ general duty to prevent and investigate crime;

-       It is the duty and responsibility of a competent investigator to prepare accurate, detailed and comprehensive notes as soon as possible after an event has been investigated;

-       Police officers’ notes provide a vital record upon which to base decisions regarding the prosecution of a case.

-       Police notes provide the accused and his or her counsel with essential information to make informed decisions as to how to plead and how to conduct the defence;

-       Police officer’s notes assist an officer in testifying at trial.  It is essential to the reliability and integrity of the officer’s evidence that the notes used record the officer’s own independent recollection;

[17]        As underlined by Sharpe J.A., it is worth re-emphasizing the importance of note-taking in the disclosure process. Note-taking by police officers is part and parcel of the police "duty to participate in prosecutions,"[6] and “duty to participate in the disclosure process,"[7] i.e. "[t]he corollary duty of the police to disclose to the Crown the fruits of the investigation."[8] 

[18]        Hence, it is appropriate to cite the recommendation of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions chaired by the retired Ontario Court of Appeal Justice G. Arthur Martin in 1993:

The Committee recommends that the Attorney General request that the Solicitor General issue a statement to all police officers emphasizing the importance of careful, accurate, and contemporaneous notes during the investigation.  (The statement should emphasize that disclosure requirements after Stinchcombe cannot be thwarted by making less accurate and less comprehensive notes.).[9]

[Emphasis added]

[19]        While not admissible as primary evidence, personal notes taken by police officers are as pivotal and crucial to the administration of criminal justice as are medical records in the health sector.[10]

[20]        The failure to keep independent and contemporaneous notes, or complete and accurate notes, will always be relevant when assessing the credibility and reliability of the evidence of a police officer.[11] The failure to observe appropriate note-taking practices must be assessed in the circumstances of each case. Any explanation provided for the failure to keep appropriate notes has to be weighed in the context of the totality of the evidence, both testimonial and documentary.

[21]        In this case, the best that can be said is that the police officers regarded the writing of notes as perfunctory. They appear to view the writing of a common report from memory as the functional equivalent of contemporaneous independent personal notes.[12] They are clearly mistaken in that regard.

[22]        While note-taking as an event unfolds will always be a challenge for police officers, a conscientious effort should be made to write them.[13] It should not be regarded from a perspective totally antithetical to its very important institutional function.  A later report might partly serves as the functional equivalent of personal notes but such a conclusion can only be drawn after a careful assessment of the circumstances of each case.

[23]        The issue of note-taking is particularly important in this case with respect to the police officer’s explanation for their failure to delay questioning, i.e. the urgency of the situation.

[24]        According to R. v. Prosper,[14] urgency is not created by mere investigative and evidentiary expediency. The police officers’ own reports, while not contemporaneous, stated that the respondent was sought for the murder of his wife in the United States. 

[25]        There is no evidence of an urgent imperative to question the respondent.

[26]        There is no basis in the evidence to establish an urgency such as the police duty to “protect life,” which includes preventing death or serious injury.[15] 

[27]        The respondent was surrendering himself because he was being sought for the murder of his wife in the United States. Before questioning him, the officers also knew that his car, a Jeep Patriot 2010,[16] had a license plate from Ohio and that the outstanding warrant was issued in Windsor, Ontario. There was no urgency in Saguenay or anywhere else and the notes make no reference to such urgency.

[28]        This is simply not a case of an irresistible desire to confess[17] or a spontaneous declaration. While it is true that the respondent called the police to surrender himself to the authorities, the answers he gave were nevertheless all triggered by the police interrogation at a time when the police officers were required to hold-off questioning by established authorities.  

[29]        In the circumstances of this case, it would be “improper [for this Court] to speculate about the nature of the advice that [the respondent] would have received and whether the evidence would have been obtained had [his] right not been infringed”.[18]

[30]        Therefore, the first unrecorded answers should be excluded pursuant to the application of the three criteria of the s. 24(2) analysis enunciated in R. v. Grant.[19] Statements tend to be excluded under s. 24(2) analysis.[20] This is not a case where the Court can conclude that the statements would have made notwithstanding the Charter breach.[21]

[31]        The violation is even more serious in view of the unsupported ex post facto justification of urgency.[22]

[32]        The seriousness of the impact of the Charter breach on the Charter-protected interests of the respondent favours exclusion of the evidence because of the importance of the principle against self-incrimination.[23]

[33]        The final line of inquiry also supports exclusion of the evidence, particularly in the circumstances of obtaining a statement in a murder investigation without proper personal notes, proper audio or video-recording and the unsubstantiated ex post facto justification.[24]

[34]        With respect to the second statement, the conduct by the police officers prior to the statement, even taking into account the subsequent consultation with counsel by the respondent, does not sever the link between the original taint and the subsequent statement.[25] This conclusion is supported by the absence of an appropriate audio or video record of the surrounding circumstances, which also raises the issue of the reliability of the second statement.[26]

[35]        On balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute. Weighing the interests of truth against the integrity of the justice system, the Court concludes that the vindication of the specific Charter violation through the exclusion of evidence does not exact too great a toll on the truth-seeking goal of the extradition proceedings.[27] The Court cannot turn a blind eye on constitutionally "unacceptable police conduct or practices".[28]

[36]        All the statements purportedly made by the respondent are therefore excluded from the ROC pursuant to s. 24(2) of the Charter

III - Sufficiency of evidence to justify the committal

[37]        The Court must now determine whether the remaining evidence in the ROC provides sufficient evidence to justify Mr. Sheppard's committal. 

[38]        The principles are well known.[29]

[39]        The ROC established sufficient evidence to justify his committal for extradition for murder based on the following factual elements:

39.1.     Up until November 2, 2012, the respondent and his wife lived together in Toledo, Lucas County, Ohio.

39.2.     The respondent's wife failed to report for work on November 2, 2012 which was unusual because she was a reliable employee.

39.3.     The same day, around 10:20 p.m., the respondent's wife body was found at the Sheppards residence wrapped in a blanket with a belt around her neck. According to a forensic pathologist, she died from ligature strangulation.

39.4.     It was unusual for the respondent's car not to be at home at night.

39.5.     The respondent failed to report for work on November 2, 2012. He had warned his employer by leaving a message at 4:47 a.m.

39.6.     The respondent entered Canada from the Detroit, Michigan area on November 2, 2012 at 9:53 a.m.

39.7.     At 12:28 am. on November 2, 2012, the respondent sent a text message to Nate Resnick a co-worker of his wife with whom she was having an affair.

39.8.     On November 4, 2012, the respondent was arrested around 5:00 a.m. by the Saguenay police.

[40]        On the basis of the evidence, including motive and flight by the respondent, a reasonable jury properly instructed could return a verdict of guilty on the charge of murder contrary to sections 229 and 235 of the Criminal Code.

IV - Second or first-degree murder

[41]        With respect to the issue of whether the Court should specify that the evidence does not disclose a case for first degree murder, the Court declines to make such a finding.[30]

[42]        The jurisdiction of the Court is defined by section 29 of the Extradition Act.

[43]        The following principles may be gathered from Canada (Justice) v. Fischbacher :

1) The sole function of an extradition hearing is to determine whether the domestic component of double criminality is met;

2) The Act clearly establishes that the province of the extradition judge is limited to consideration of only the domestic side of this issue, as the Minister has already established that the foreign component of double criminality is satisfied. Accordingly, the role of the extradition judge does not include a review of the foreign law;

3) The judge must consider the evidence in light of Canadian law and determine whether it reveals conduct that would justify committal for the crime listed in the ATP if it had occurred in Canada;

4) If the extradition judge concludes that the impugned conduct would amount to a criminal offence in Canadian law, the domestic component of double criminality is satisfied and the person sought must be committed for extradition;

5) Following committal, the matter reverts to the Minister who reviews the case in its entirety to determine whether to order the individual’s surrender and, if so, on what basis. This requires the Minister to determine whether it is politically appropriate and not fundamentally unjust for Canada to extradite the person sought.[31]

[44]        It should be mentioned that the respondent is not without recourse at the surrender stage of the extradition process.[32] 

[45]        Charron J. made that very clear in Fischbacher. The Minister may consider the jeopardy faced by the person whose extradition is sought:

[54] That the Minister is not to assess whether the evidence adduced at a committal hearing satisfies the elements of the foreign offence should not be understood to mean that the Minister has no scope to consider foreign law in making his determination on the question of surrender. It is well established that in exceptional circumstances, the panoply of relevant factors that inform a surrender decision may include a significant discrepancy between the jeopardy faced by the person sought in the requesting state and that which he would face if convicted in Canada in respect of the same conduct:  see, e.g., Ross v. United States of America (1994), 93 C.C.C. (3d) 500 (B.C.C.A.), per Taylor J.A., aff’d [1996] 1 S.C.R. 469. In these circumstances, the Minister is entitled to include the foreign crime and its attendant penalty as one of many factors under consideration at the surrender stage. In doing so, however, the Minister simply takes account of the potential consequences to the person sought under the foreign law, as opposed to making his own assessment of how the foreign law should apply to the case at issue. Accordingly, the Minister remains within the ambit of his proper role under the Act, and the principle of comity is not undermined.

V - Suspension of the extradition proceedings

[46]        Finally, Fischbacher does not support the suspension by the Court of the extradition proceedings against the respondent pending further investigation by the American authorities where the evidence is sufficient to justify the committal.

[47]        FOR THESE REASONS, THE COURT:

[48]        ORDERS the committal of Mr. Sheppard into custody to await surrender to the United States of America;

[49]        ORDERS that the JEEP PATRIOT 2010, VIN 1J4NF2GB1AD510689 and its content, be transferred to the United States of America at the time Mr. Sheppard is surrendered.

 

 

__________________________________

GUY COURNOYER, J.C.S.

 

Me Toni Abi Nasr

Attorney for the applicant

 

 

Me Daniel J. Brodsky

Attorney for the respondent

 

 

Dates of hearing:

July 16 and 19, 2013; August 21, 2013.

Oral judgment:

October 3, 2013

 



[1]     Brief oral reasons were provided on October 3, 2013. These are the detailed revised reasons.

[2]     U.S.A. v. Anekwu, [2009] 3 S.C.R. 3, par. 29.

[3]     2013 ONCA 543.

[4]     (2011), 278 C.C.C. (3d) 57 (Ont. C.A.) leave to appeal granted [2012] 2 S.C.R. x. Judgment reserved since April 13, 2013.

[5]     Ibid., par. 1.

[6]     R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, par. 23.

[7]     Ibid.

[8]     Ibid., par. 24.

[9]     Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Toronto, Queen's Printer, 1993, at 150-151. See also: K. Jacob, A Guide to Police Writing, Third Edition, Carswell, 2002, at 27-38; Gordon Scott Campbell, The Investigator's Legal Handbook, Thomson Carswell, 2006, at 49-77.

[10]    See for example Ares v. Venner, [1970] S.C.R. 608.  See also Paul Calarco, What Happens When Evidence Has Not Been Recorded? Staying Charges to Ensure a Fair Trial (2001), 44 C.L.Q. 514, at 525-528.

[11]    See for example in another context: R. v. Ibanescu, 2011 QCCA 2304, par. 33 reversed on other grounds 2013 SCC 31.

[12]    R. v. Thompson (2013), 1 C.R. (7th) 125, par. 212 (Ont. S.C.). It should be pointed out that the issue raised in this case is a fact-finding issue, not a disclosure issue: see R. v. Wicksted (1996), 106 C.C.C. (3d) 385 (Ont. C.A.), aff'd [1997] 1 S.C.R. 307; R. v. Korski (2009), 244 C.C.C. (3d) 452, par. 79 (Man. C.A.).

[13]    R. v. Thompson (2013), 1 C.R. (7th) 125, par. 212 (Ont. S.C.).

[14]    [1994] 3 S.C.R. 236, at p. 275.

[15]    See for example R. v. Godoy, [1999] 1 S.C.R. 311.

[16]    The transfer pursuant to s. 39 of the Extradition Act of the JEEP PATRIOT 2010, VIN 1J4NF2GB1AD510689 and its content to the United States is not opposed by the respondent.

[17]    R. v. Harper, [1994] 3 S.C.R. 343, par. 15; R. v. Auclair (2004), 183 C.C.C. (3d) 273 (Qué. C.A.); United States v. Yousef (2003), 178 C.C.C. (3d) 286 (Ont. C.A.).

[18]    R. v. Bartle, [1994] 3 S.C.R. 173, at p. 217.

[19]    R. v. Grant, 2009 SCC 32,  [2009] 2 S.C.R. 353.

[20]    Ibid., para. 89-98.

[21]    Ibid., par. 96.

[22]    R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, par. 20.

[23]    R. v. Grant, 2009 SCC 32,  [2009] 2 S.C.R. 353, par. 77.

[24]    R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, par. 26 ; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, par. 88.

[25]    R. v. Manchulenko, 2013 ONCA 543, par. 67-73.

[26]    See R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493 (Ont. C.A.) ; R. v. Caron, 2007 QCCA 1569.

[27]    R. v. Grant, 2009 SCC 32,  [2009] 2 S.C.R. 353, par. 82.

[28]    R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, par. 113.

[29]    See U.S.A. v. Ferras, [2006] 2 S.C.R. 77, 2006 SCC 33;  R. v. Arcuri, [2001] 2 S.C.R. 828,
2001 SCC 54; U.S.A. v. Anderson (2007), 218 C.C.C. (3d) 225 (C.A. Ont.); U.S.A. v. Thomlinson (2007), 216 C.C.C. (3d) 97 (Ont. C.A.); U.S.A. v. M.M., 2012 QCCA 1142.

[30]    Canada (Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170, par. 5-7.

[31]    Ibid., par. 35-36.

[32]    It would appear from the police report that assurances were provided to the respondent that the death penalty would not be sought.

AVIS :
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