Canadian Gathered Evidence in United States of America v Anekwu

The Supreme Court of Canada recently granted leave to appeal to United States of America v Anekwu, 2008 BCCA 138 [Anekwu], a decision of the the British Columbia Court of Appeal. The issue before the Supreme Court of Canada in Anekwu is whether or not the Court of Appeal erred in finding that hearsay evidence that is lawfully gathered in Canada and summarized in the record of the case must still satisfy the rules of evidence under Canadian law.

Facts and Procedural History

Mr. Anewku, a Canadian national, is alleged to have been involved in a fraudulent telemarketing scheme directed primarily at elederly U.S. residents. On October 3, 2005, the Minister of Justice issued an Authority to Proceed pursuant to s. 15(1) of the Extradition Act, SC 1999, c 18 to allow the U.S. government to seek an order for Mr. Anekwu’s commital to the Canadian equivalents of fraud, conspiracy to commit fraud and unlawful telemarketing.

In support of the commital order, the U.S. provided a record of the case against Mr. Anekwu, which included evidence attesting to the fact that he had been prominently involved in multiple fraudulent telemarketing organizations. Significantly however, none of the evidence directly implicated Mr. Anekwu.

Mr. Anekwu challenged the admissability of the Canadian-gathered statements at the extradition hearing. Specifically, he submitted that the impugned evidence was inadmissable for two reasons, (1) that it had been obtained in a manner that violated his section 8 Charter protection against unreasonable search and seizure, and (2) that the evidence constituted hearsay.

The committal judge rejected both arguments by Mr. Anekwu, finding that the impugned evidence was in fact admissable. Mr. Anekwu then appealed the second argument (above) to the British Columbia Court of Appeal.

British Columbia Court of Appeal

A divided British Columbia Court of appeal ruled in Mr. Anekwu’s favour, setting aside committal and surrender orders and ordering a new hearing. After identifying the appropriate standard of review as one of correctness, Prowse J.A., writing for the majority, launched into a consideration of the admissability of the Canadian-gathered evidence. Smith J.A. agreed with Prowse J.A. but wrote a separate concurring opinion.

Prowse J.A. considered the matter before the court as primarily related to the statutory interpretation of s. 32 of the Extradition Act, which reads:

32.(1) Subject to subsection (2), evidence that would otherwise be admissible under Canadian law shall be admitted as evidence at an extradition hearing. The following shall also be admitted as evidence, even if it would not otherwise be admissible under Canadian law:

(a) the contents of the documents contained in the record of the case certified under subsection 33(3);
(b) the contents of the documents that are submitted in conformity with the terms of an extradition agreement; and
(c) evidence adduced by the person sought for extradition that is relevant to the tests set out in subsection 29(1) if the judge considers it reliable.

(2) Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.

Section 33 of the Extradition Act details the rules about introducing evidence through a record of case:

33(1) The record of the case must include

(a) in the case of a person sought for the purpose of prosecution, a document summarizing the evidence available to the extradition partner for use in the prosecution;
…

(2) A record of the case may include other relevant documents, including documents respect-ing the identification of the person sought for extradition.
(3) A record of the case may not be admitted unless

(a) in the case of a person sought for the purpose of prosecution, a judicial or prose-cuting authority of the extradition partner certifies that the evidence summarized or contained in the record of the case is available for trial and

(i) is sufficient under the law of the extradition partner to justify prosecution, or
(ii) was gathered according to the law of the extradition partner; or
…

(4) No authentication of documents is required unless a relevant extradition agreement provides otherwise.

Prowse J.A. thus summarized the issues relating to the statutory interpretation as follows:

The first question raised as a matter of statutory interpretation is whether evidence that is lawfully gathered in Canada and summarized in the record of the case is automatically admissible as part of the record of the case pursuant to s. 32(1)(a) of the Act, or whether that evidence must still satisfy the rules of evidence under Canadian law in order to be admitted in accordance with s. 32(2). The second question concerns what it means “to satisfy the rules of evidence under Canadian law” within the meaning of s. 32(2) where the evidence in issue is hearsay.

With respect to the first question, drawing on United States of America v Martinez, [2000] OJ No 647 (Sup Ct J), Prowse J.A. found that all “Canadian-gathered evidence contained in a record of [a] case ha[s] to satisfy the rules of evidence under Canadian law to be admitted.”

To fortify this finding, Prowse J.A. launched into a purposive analysis of s. 32(2) of the Extradition Act, pointing, among other things, to the fact that Hansard records indicated that Parliament had drawn a distinction between foreign-gathered evidence (which, for reasons of expediency was presumably subject to automatic admission) and Canadian-gathered evidence.

Prowse J.A. then turned her attention to s. 33 of the Act and in her analysis, she drew heavily on Moldaver J.A.’s opinion for the Ontario Court of Appeal in United States of America v McDowell (2004), 237 DLR (4th) 677 (ONCA) [McDowell]. She agreed with Moldaver J.A. that “s. 33 of the Act, which sets forth what may be contained in a record of the case, does not, on its face, preclude the Requesting State from including Canadian-gathered evidence in the record of the case,” however she took issue with the finding in McDowell that “s. 33 is silent with respect to Canadian-gathered evidence gives rise to the inference that Parliament intended to permit such evidence to be admitted at an extradition hearing if it would otherwise be inadmissible under Canadian law.”

“That question” she explained, “is specifically addressed in s. 32(2) of the Act which makes it clear that Canadian-gathered evidence must comply with the Canadian rules of evidence to be admitted at an extradition hearing.” What s. 32(2) does not say, Prowse J.A. continued, was that “Canadian-gathered evidence, except that forming part of a record of the case, must comply with Canadian rules of evidence; nor, in my view, can that be reasonably inferred from these provisions when read together.”

Ultimately, however, the Supreme Court of Canada will have the final say on the precise nature of the evidentiary requirements that attach to Canadian-gathered evidence in extradition hearings.