United States of America v. Anekwu: Standards of Evidence in the Extradition Context
On September 24 the Supreme Court of Canada released its decision in United States of America v. Anekwu, 2009 SCC 41. The case concerned the rules of evidence with regards to the Canadian extradition process: specifically, the admissibility of Canadian-gathered evidence that is presented in summarized form, which would not comply with the hearsay rule as traditionally applied in domestic proceedings. The Court, adopting the reasoning of the dissenting justice on the British Columbia Court of Appeal, unanimously held that ss. 32(2) and 33(1) of the Extradition Act, when read together, call for a modified approach to the hearsay rule in the extradition context.
TheCourt.ca‘s coverage of the British Columbia Court of Appeal’s decision may be found here, in which event what follows is but a brief restatement of the pertinent facts. In 2005 the United States of America sought the extradition of one Henry Anekwu to face charges of mail and wire fraud. In support of the application for committal, the Attorney General of Canada submitted a certified record of the case prepared by the United States containing, pursuant to s. 33(1) of the Extradition Act, “a document summarizing the evidence available to the extradition partner”. The summary described evidence gathered in both the US and Canada. Anekwu objected to the admissibility of the Canadian-gathered evidence contained in the record of case on the basis that it was presented in summary form and, as such, constituted inadmissible hearsay, which would not satisfy “the rules of evidence under Canadian law” as required under s. 32(2) of the Act.
The issue before the Court was one of statutory interpretation and reconciliation, for while according to s. 33(1) of the Act, “[t]he record of the case must include (a) … a document summarizing the evidence available to the extradition partner”, according to s. 32(2), “[e]vidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.” Justice Charron, writing for the Court, framed the question as follows:
“Does s. 32(2) require traditional adherence to the hearsay rule as it is applied in domestic criminal courts … ? Or do ss. 32(2) and 33(1), read together, provide for a modified approach to the hearsay rule unique to the extradition context … ?”
In finding for Anekwu, a majority of the British Columbia Court of Appeal held that Canadian-gathered evidence must comply with the hearsay rule as traditionally applied, rejecting that the Act provided for a modified approach. The practical and contextual accommodation that evidence be allowed to be presented in summary form only applied to foreign-gathered evidence; Canadian-gathered evidence still had to be presented in the traditional form. Thus the summary form of the Canadian-gathered evidence contained in the record of the case constituted inadmissible hearsay.
The Supreme Court rejected the majority of the Court of the Appeal’s reasoning, noting that, “[i]t was open to Parliament to restrict the type of evidence that could be presented in summary form in the record of the case to foreign-gathered evidence … . The main difficulty with this interpretation, however, is that s. 33(1) imposes no such limitation.” The Court resolved the statutory issue by agreeing with the dissenting reasons of Chiasson J.A. as well as those of United States of America v. McDowell (2004), 183 C.C.C. (3d) 149, that “s. 32(2) is concerned with substance over form. In other words, the evidence may be presented in summary form, in accordance with s. 33 of the Act, and can be relied on … if in substance, it would be admissible in a Canadian court.” Again, while perhaps inadmissible in form, it is enough that evidence be admissible in substance, in the extradition context, when reading together both ss. 32(2) and 33(1) of the Extradition Act. Justice Charron found that “th[is] approach[, which] accords with a combined reading of ss. 32 and 33 of the Act … achieves a proper balance between the liberty interests of the person sought and the international principle of comity.” Justice Charron elaborated fully:
“Adherence to the strictures of the hearsay rule in the extradition context would require, as a general rule, that witnesses be called to give viva voce evidence resulting in inevitable delays, increased expenses, and potentially lengthy cross-examinations in a hearing that is neither intended as a vehicle for disclosure nor as a forum to adjudicate on the merits of the foreign prosecution. Traditional adherence to the rule could occasion protracted voir dires to determine whether evidence presented in hearsay form falls into one of the recognized exceptions to the rule or meets the twin criteria of necessity and reliability. In my view, Moldaver J.A. rightly concluded in McDowell that traditional adherence to the hearsay rule ‘would be to allow form to triumph over substance and lead to expensive, time-consuming hearings that would disable Canada from complying with its international obligations in a prompt and efficient manner …’ .”
As Anekwu objected to the admissibility of the evidence only on formal grounds (that it was only in summary form) and not on substantive grounds, the evidence was ruled admissible. The Court also affirmed the extradition judge’s rejection of Anekwu’s other, Charter-based complaints. The Supreme Court concluded that the Court of Appeal had erred in its interpretation and application of s. 32(2) of the Act, thereby allowing the appeal and restoring the extradition judge’s committal and surrender orders.
As mentioned, this was a matter of statutory interpretation, and where, as previously reported by TheCourt.ca‘s Matthew Shogilev, the Court of Appeal conducted a purposive analysis of the statute that looked into the legislative history of the statute (with regards to the foreign- and Canadian-gathered distinction), the Supreme Court textualistically looked at the words of the statute, holding them as conclusively representative of Parliament’s intention. If I am to have an opinion on the outcome of Anekwu, it is that the Supreme Court’s interpretative approach is the preferable one. That not just a majority but a unanamity of the Court arrived at it makes such an opinion an all the more safe bet.