Canada (Attorney General) on Behalf of the Kingdom of Thailand v Dupre, 2022 ABKB 833

Court of King’s Bench of Alberta Citation: Canada (Attorney General) on Behalf of the Kingdom of Thailand v Dupre, 2022 ABKB 833 Date: 20221209 Docket: 220176960X1 Registry: Edmonton Between: Attorney General of Canada on Behalf of the Kingdom of Thailand Applicant - and - Matthew Leandre Ovide Dupre Person Sought for Extradition Corrected judgment: A corrigendum was issued on December 20, 2022; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D. J.

Kiss _______________________________________________________ Introduction [ 1 ] The Kingdom of Thailand (Thailand) seeks the extradition of Mr. Matthew Leandre Ovide Dupre for prosecution for murder. Mr. Dupre and another Canadian citizen, Gene Karl Lahrkamp, are alleged to have shot and killed Jimi Singh Sandhu on February 4th, 2022, in Phuket, Thailand. [ 2 ] On May 5, 2022, the Minister of Justice issued an Authority to Proceed (ATP) pursuant to s 15 of the Extradition Act , SC 1999, c 18 authorizing the Attorney General of Canada to seek an order for Mr. Dupre’s committal for extradition.

The ATP identifies murder as the Canadian offence corresponding to Mr. Dupre’s alleged conduct in Thailand.

[3] Section 24(1) of the Extradition Act requires this Court to hold an extradition hearing upon receipt of an ATP. Thisextradition hearing does not determine whether Mr. Dupre will be surrendered to Thailand. That decision rests with the Minister. If thisCourt orders committal, Mr. Dupre has the right to make submissions to the Minister as to whether the Minister should still decline tosurrender him, or surrender with conditions.

General Principles [4] The purpose of this hearing is to determine whether, pursuant to s 29 of the Extradition Act: • There is evidence admissible under the Act of conduct that, had it occurred in Canada, would justify Mr. Dupre’s committal fortrial on the offence set out in the ATP; and • I am satisfied that Mr. Dupre is the person sought by the Kingdom of Thailand. [5] There are several legal principles applicable to extradition hearings such as this that bear repeating. [6] The first is that an extradition hearing is not a trial.

It has been described as a modest screening device designed to ensurethe identity of the person sought and to protect that person from being surrendered for conduct that we would not recognize as criminal:MM v United States of America, 2015 SCC 62 at paras 36, 38 and 64 [MM] and United States of America v Yang (2001), (ON CA), 56 OR (3d) 52, 203 DLR (4th) 337 (CA) at para 47 [Yang]. It is supposed to be an expedited process to determinewhether a trial should be held.

It is structured in a manner designed to keep expenses to a minimum and to ensure prompt compliancewith Canada’s international obligations: United States of America v Dynar, (SCC), [1997] 2 SCR 462 at para 122 andMM at paras 38, 61 and 64. [7] Second, I am not concerned with the ultimate guilt or innocence of Mr. Dupre. At this stage, I am not permitted to assess anypossible defences that may be available to Mr.

Dupre or other aspects of the crime on which the accused bears the evidential orpersuasive burden of proof: MM at para 65. [8] I note that in his oral submissions, the Respondent’s counsel advised that if Mr. Dupre is convicted of this crime in Thailand,the only sentence available to the Court there is death by lethal injection.

This is simply not a factor I am permitted to consider at thisstage of the extradition proceedings. [9] Third, while the role of the extradition judge in scrutinizing evidence has been somewhat enhanced to ensure Chartercompliance, I am only permitted to engage in a “limited weighing” of evidence to exclude evidence that is “manifestly unreliable”. Thestarting point, however, is that the evidence presented in the certified Record of the Case (ROC) is presumptively reliable: United Statesof America v Ferris, 2006 SCC 33 at para 52 and MM at paras 62 and 72.

I am only able to refuse committal if the evidence is sodefective, or appears so unreliable, that it would be dangerous or unsafe to act on it: MM at para 63. This is a very high threshold. Overview of Thailand’s Evidence [10] The evidence gathered by Thailand against Mr. Dupre is summarized in the ROC, which was certified by Mr. PapasSuttinanarupai of the Office of the Attorney General of Thailand on March 30, 2022. The ROC is certified as containing a

summary ofthe evidence that is available for trial and is sufficient under the laws of Thailand to justify prosecution. The ROC therefore complieswith the evidentiary requirement set out in s 33(1)(3) of the Extradition Act. [11] The evidence against Mr. Dupre, that has been summarized in the ROC, comes from a number of sources.

They include: • Sworn statements from 6 individuals, including: • Police Major Huivejasart related to findings of the Thailand police investigation including the collection and analysis of videoevidence; • Police Major Liemsanguan related to findings of the police search of the villa rented by the victim, Mr. Sandhu; • Tatiana Saitiava, a tourist, related to her observations on the beach on the night of the alleged murder; • The Chief Receptionist at the Novotel Karon hotel relating to his observations of both Mr. Dupre and Mr.

Lahrkamp during theirstay at the hotel; • An employee of the Car Rental company related to her observations of Mr.

Lahrkamp renting a vehicle; and • The driver of a vehicle who was in the relevant area the night of the alleged murder and provided dash camera footage from hervehicle. • Video evidence including CCTV footage from two sources (the Rawai Municipality Office and a Café in Rawai) and dash camerafootage from an individual driving in the area the night of the alleged murder; • Documentary evidence including immigration, hotel and car rental records; and • Physical evidence including ammunition casings, bullets, pistols, clothing, DNA and fingerprint evidence

Position of the Parties [ 12 ] The Applicant submits that both parts of the test for committal are satisfied in relation to the offence set out in the ATP. The Applicant argues that the extensive video, documentary and physical evidence referenced in the ROC establishes a prima facie case against Mr. Dupre for murder and also establishes, on a balance of probabilities, that Mr. Dupre is the person sought for prosecution by Thailand. [ 13 ] The Respondent concedes that the second part of the test for committal has been met and that the Applicant has met its onus under s 29(1)(

a) of the Extradition Act to establish, on a balance of probabilities, that Mr. Dupre is the person sought for prosecution by Thailand. [ 14 ] As well, the Respondent does not dispute that the evidence in the ROC establishes a prima facie case with respect to three of the elements of the offence of murder – being the death of the victim, causation and the requisite mental state. [ 15 ] However, the Respondent submits that I should refuse to order Mr. Dupre’s committal on the basis that the Applicant has failed to present a prima facie case that Mr.

Dupre was one of the perpetrators of the conduct alleged in the ROC. The Respondent argues that the evidence in the ROC is insufficient to establish that the person before this Court is the person who engaged in the alleged conduct that underlies this request for extradition. [ 16 ] The Respondent advances 2 alternative arguments in support of his position: 1.

First, the Respondent submits that the failure of Thailand to include actual copies of the CCTV and dash camera footage referenced in the ROC, or at least stills from the footage, from which it is alleged the Respondent can be identified, is fatal to its case. The Respondent argues that the Court is being asked to rely upon the opinion of a Thailand police officer, Major Huivejasart, who never met the Respondent and only compared some of the footage to a photograph taken of the Respondent when he entered Thailand.

The Respondent suggests that this Court is unable to form an opinion as to whether the Respondent is the individual depicted in the footage without actually reviewing it. 2. Alternatively, the Respondent submits that the ROC lacks sufficient detail for this Court to assess the factual foundation for the Thailand police officer’s identification opinions and that Major Huivejasart’s opinions are therefore inadmissible.

Analysis Issue #1: Can the Applicant establish a prima facie case that the Respondent was one of the perpetrators of the homicide without the Court having the opportunity to review the actual CCTV and/or dash camera footage? [ 17 ] The answer to this question, in my view, is “yes”. [ 18 ] Section 33(1) of the Extradition Act makes it clear that the ROC must include a document summarizing the evidence available to the extradition partner for use in the prosecution.

Section 33(2) of the Act further provides that an ROC may include other relevant documents, including documents respecting the identification of the person sought for extradition. In other words, including other relevant documents, other than the

summary of the evidence, is not a mandatory requirement. [ 19 ] The ROC in this case includes the required

summary of the evidence. The ROC also includes 2 photographs of Mr. Dupre provided by the Thailand immigration authorities. [ 20 ] Section 33(3) of the Extradition Act confirms that this evidence is admissible because the ROC has been properly certified.

The admissibility is therefore based on the act of certification, not on the type of evidence that is included in the ROC. [ 21 ] I find support for my conclusion that the Applicant is not required to include CCTV and dash camera footage, or even stills from the videos, as part of its evidence for this hearing, in the case of United States of America v Nuez , 2017 ONSC 4519 [ Nuez ], an extradition case involving fraud charges against several individuals including Mr. Ghahremanpour. Justice Nakatsuru described the ROC in that case as a brief

summary describing the evidence available, noting that it also contained a photograph of Mr. Ghahremanpour attached as an Exhibit. [ 22 ] The information in the ROC in Nuez came from 3 sources. One of the sources was a witness who was initially charged but was now cooperating with the prosecution. This witness knew Mr. Ghahremanpour personally. The witness had viewed the photograph attached to the ROC and confirmed that it was a photograph of Mr. Ghahremanpour. A second source was a police detective who had reviewed video from the company that had been the target of the fraud.

The video footage itself was not contained in the ROC. [ 23 ] Nakatsuru J described the police detective’s review of the video footage at para 9: The final source is New York City Police Detective Daniel Herzog. He reviewed the video footage from the company and compared the footage with known photographs of the alleged conspirators including Mr. Ghahremanpour and Mr. Nuez. Detective Herzog identified specific instances on the video footage in which he states the conspirators directly participated in the scheme. He gives examples of specific dates and describes what each video shows.

He concludes by stating that video footage from March 10 to September 25, 2016,

shows Mr. Ghahremanpour personally participating in the above described scheme at least 10 times at different locations in the UnitedStates. [24] At para 13, on the issue of identification, Nakatsura J stated as follows: In my view, the circle of identification is complete. First the cooperating witness personally knows Mr. Ghahremanpour and identifies aphoto of him. Then Detective Herzog uses that same photograph and compares it to video footage taken from the store on April 5, 2016,and identifies one of the persons participating in the scheme that day to be Mr. Ghahremanpour.

Detective Herzog also identifies Mr.Ghahremanpour in at least 10 other locations in the United States participating in the scheme. [25] Justice Nakatsura ultimately found there was sufficient evidence to order Mr.

Ghahremanpour’s committal to await surrenderon the charge of fraud. [26] R v Angelov, 2015 ONCA 659 [Angelov] is another case where video or CCTV evidence was relied upon to support theidentification of the person sought to be extradited, but not included as part of the ROC. [27] In Angelov, an FBI Special Agent named McCaskill identified Angelov as the person sought for extradition by comparing aphotograph from his driver’s license with a still photograph from surveillance video taken at a bank ATM, and two other photos - onetaken in a locker room and a second at a Radisson Inn.

The extradition judge refused to commit, concluding that identification from thestill photograph from the ATM was manifestly unreliable. The judge declined to rely on the other two photographs because of themanner in which they had been described in the supplemental record. [28] The extradition judge’s decision was overturned on appeal.

With respect to McCaskill’s identification of Angelov, theOntario Court of Appeal stated as follows, at para 31: The original record states that the surveillance video from the Portage Lakes branch shows two men – Halil, and another man said to beAngelov interacting with the ATM at 3:11 pm on May 3rd. The supplemental records of the case state that McCaskill has looked at thissurveillance video and has compared it with the locker room and Radisson Inn photos of Angelov. On the basis of these comparisons,she believes that Angelov is the other man in the surveillance video.

Especially bearing in mind the presumption of the reliability ofevidence in the certified record of the case, McCaskill's identification of Angelov is sufficiently reliable to justify his committal. Theextradition judge’s conclusion that the identification of Angelov is manifestly unreasonable is itself unreasonable. [29] I agree with the Applicant that by suggesting I cannot determine whether Mr.

Dupre is one of the suspects depicted on theCCTV footage without having the opportunity to review it myself, the Respondent is asking this Court to assess the ultimate reliabilityof the Thailand police officer’s evidence.

That is outside the scope of my role in this extradition hearing. [30] The Yang decision I have previously referenced also makes it clear that I must not assess the Thailand police officer’sevidence through the lens of common law concepts applicable to the admissibility of identification evidence in Canadian criminal courts,such as those as reflected in the cases cited by the Respondent – R v Leany, (SCC), [1989] 2 SCR 393 and R vNikolovski, (SCC), [1996] 3 SCR 1197. [31] I am therefore satisfied that it is not necessary for this Court to be able to view the actual CCTV or dash camera footage.

Allthat is required by s 33(1) of the Extradition Act is that a

summary of this evidence be included in the ROC. Issue #2: Is the evidence in the ROC from the Thailand police officer, MajorHuivejasart, identifying the Respondent in the CCTV and dash camera footageinadmissible because the ROC lacks sufficient factual foundation for the Court toassess the officer’s opinion? [32] The Respondent argues that Major Huivejasart’s identification of the Respondent as one of the suspects depicted in the CCTVand dash camera footage is non-expert, opinion evidence. The Respondent submits that, even if I am prepared to rely on theidentification of Mr.

Dupre by the Major without viewing the video footage myself, his identification opinion is still “manifestlyunreliable” because the Court has not been provided with a sufficient factual foundation to assess his opinion. [33] The Respondent concedes that the image of the Mr. Dupre from video footage obtained from the We Café, which wasdescribed in the ROC as “clear”, meets the test and is not manifestly unreliable. However, the Respondent notes this footage is fromapproximately 9 hours before the alleged murder and suggests that, at best, it is some circumstantial evidence in support of a theory thatMr.

Dupre was the second gunman. [34] The Respondent’s concerns appear to focus primarily on the link made in the ROC by Major Huivejasart between the tattooon Mr. Dupre’s arm, as described by the hotel receptionist, and the one observed by the Major in the CCTV and dash camera footage hereviewed. The Respondent suggests that the hotel receptionist’s description of the tattoo is generic. He described Mr. Dupre’s tattoo as“large”, “distinct” and covering his right arm – but gave no description of how it was distinct.

The Major observed a “large” tattoo onthe suspect’s right arm on video footage but provided no further description. [35] The Respondent argues that if Major Huivejasart’s identification opinion is found to be manifestly unreliable, all that thisCourt is left with is circumstantial evidence of association between Mr. Dupre and Mr. Lahrkamp and this evidence of “guilt byassociation” is not sufficient to establish a prima facie case. [36] As I have already noted, the evidence in the ROC is admissible because it meets the certification requirements of theExtradition Act.

As well, the starting point is that this evidence is presumptively reliable. In order to establish that the evidence is

“manifestly unreliable”, the concerns regarding the evidence must be sufficiently powerful to justify complete rejection. It must bedemonstrated that there are fundamental inadequacies or frailties in the material relied upon by the requesting state: MM at paras 71-72. [37] I do not find that the very high threshold to reject this evidence has been met in this case. [38] Unqualified opinion evidence that would not normally be admissible in a Canadian criminal proceeding is admissible inextradition hearings.

As noted by Rosenburg JA in Yang, at para 51, even “fifth-hand hearsay, non-expert opinion and prejudicialcharacter evidence” may be admissible. Rosenburg JA further commented at para 51: This is disturbing only when viewed through the lens of the Canadian system and its paradigm of the jury trial. If such evidence isadmissible in our extradition partners it is because their experience is that this kind of evidence can be weighed by the judicial officialand will be accorded the weight it deserves.

It is not for this country to assume that it alone knows how to arrive at a true verdict. [39] The evidence of Major Huivejasart, as summarized in the ROC, goes far beyond a bare assertion that Mr. Dupre is theindividual who committed the alleged crime. The factual foundation for the Major’s opinion is outlined is considerable detail in theROC. It includes reviewing extensive CCTV footage from prior to the alleged murder, footage of the actual shooting and footage of thesuspects along their escape route after Mr. Sandhu was shot.

It also includes reviewing dash camera footage from a vehicle that was inthe area shortly after the time of the shooting and relying on information obtained from other witnesses regarding the large tattoo on Mr.Dupre’s right arm. [40] The Supreme Court has made it very clear that I am not to assess the credibility or reliability of the evidence in the ROC,except for the limited weighing of the evidence required to determine whether there is a plausible case: MM at paras 40, 62, 71 and 76. [41] “This limited weighing of the evidence does not involve determining if witnesses are credible or if the evidence is, in fact,reliable.

Whether the evidence is weak, or a conviction is unlikely”, are not the concern of the extradition judge: United States ofAmerica v Abdullahi, 2019 ABCA 238 at para 20. [42] A similar argument to the Respondent’s alleging the manifest unreliability of a police officer’s identification of a suspect fromvideo footage only was raised in the Nuez case. At para 14, Justice Nakatsuru responded as follows: The detective made comparisons using photographs including the one the witness identified and was able to identify the respondent in avideo footage of the store.

While again few details are provided about the exact nature of the video reviewed or the process in which theofficer conducted this comparison, there is nothing inherently unreliable about that evidence. The source material used in the comparisonis identified. The officer compared the images as he was entitled to do. I find that this constitutes prima facie evidence of MrGhahremanpour being the man involved in the alleged fraud transaction of April 5th, 2016: See U.S.A. v Asiegbu (2008) 2008 BCCA519 , 243 CCC (3d) 88 (BCCA) at paras 21-22.

While a trial may uncover deficiencies in the process or the evidence ofidentification, an extradition hearing is not Mr. Ghahremanpour’s trial. [43] Having considered these principles and case authorities, I find that the evidence of Major Huivejasart is admissible and that itis not so dangerous or unsafe that I would be justified in refusing to consider it. Issue #3: Is there sufficient reliable evidence in the ROC to establish, on a prima faciebasis, that Mr.

Dupre is the person who committed the alleged conduct? [44] The Ontario Court of Appeal in Yang, at para 62, pointed out that: The fact that the prosecuting or judicial authority in the extradition partner has certified that the evidence is sufficient under the laws ofthe extradition partner to justify prosecution does not eliminate the function of the extradition judge to determine its sufficiency. [45] The Court of Appeal went on to consider the amount of detail required in the ROC and at para 63 stated: If the material presented in the record of the case is so bereft of detail, such as the witness’ means of knowledge, that the judge cannotdetermine its sufficiency, the judge will have to discharge the person sought for prosecution.

This is not a question of the judgeweighing the evidence or passing on its reliability, but of carrying out the function assigned by statute.

For example, if the record of thecase contained a statement that the police suspected that the fugitive committed the offence, without stating the basis for this opinion,and this was the only evidence proffered by the extradition partner as proof that the fugitive committed the offence then, even if theopinion was admissible in the requesting state as proof of the offence, it would not be sufficient to meet the s.29 test for committalbecause it would have no probative value. [46] I am required to commit Mr.

Dupre if there is some direct evidence on each of the essential elements of the Canadian offencespecified in the ATP, or some circumstantial evidence from which a trier of fact could reasonably draw an inference of guilt.

If morethan one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered by me: R v Sazant,2004 SCC 77 at para 18. [47] The Respondent concedes that there is sufficient evidence in the ROC on all of the elements of the offence of murder with theexception of identity. [48] Therefore, I am required to look at the totality of the evidence to determine whether it establishes a prima facie case ofidentification. The most compelling evidence includes the following: 1. The photographs of Mr.

Dupre taken by the Thailand Immigration authorities upon his entry into the country and the “clear” image

of both Mr. Dupre and Mr. Lahrkamp obtained when they entered the We Café in Rawai District on Feb 4, 2022, the day of the alleged murder. These images were compared by the Thailand police investigator, Major Huivejasart. He confirmed a match, and then used to the images to identify Mr. Dupre in other CCTV and dash camera footage; 2. Evidence linking Mr. Dupre to the Toyota Fortuner vehicle Mr. Lahrkamp rented on February 2, 2022, including CCTV footage of both Mr. Dupre and Mr.

Lahrkamp driving in this vehicle to and from Siyuan 9 Alley on February 3, 2022, where they were observed inspecting what appeared to be a GPS tracker installed on the victim’s vehicle; CCTV footage of both Mr. Dupre and Mr. Lahrkamp parking this same vehicle at the We Café on February 4, 2022, and CCTV footage from later that evening of both Mr. Dupre and Mr. Larhkamp parking the vehicle in Siyuan 9 Alley prior to the time of the alleged murder and then returning to the vehicle together afterwards; 3. Evidence identifying Mr. Dupre by reason of his arm tattoo. The hotel receptionist, who interacted with Mr.

Dupre, confirmed that Mr. Dupre had a distinctive large tattoo from his right shoulder to his right wrist. The ROC indicates that clear images from the We Café CCTV showed Mr. Dupre’s face, appearance and large tattoo. The tattoo was also visible on the CCTV and dash camera footage of Mr. Dupre and Mr. Lahrkamp leaving the scene of the alleged murder and was used by Major Huivejasart to confirm Mr. Dupre’s identity; 4. Significant evidence establishing a link between Mr. Dupre and Mr.

Lahrkamp, for whom the Respondent’s counsel has conceded there is sufficient evidence of identity to establish a prima facie case against. This includes the evidence that they both arrived in Thailand on the same flight and left the country the same day; they stayed together in the first hotel and then both moved to a different hotel the same day; they were observed to “hang out” together; they had lunch together at the We Café the day of the shooting; and were seen driving together in two different rental vehicles; and 5.

Extensive CCTV surveillance and dash camera footage that the ROC states: “captured images of Mr. Lahrkamp and Mr. Dupre prior to the incident as they visited the crime scene for observation and placement of the suspected GPS device, while they were walking and hiding nearby, while the shooting took place, and also while they were fleeing.” This provided the investigators with a “complete picture” of the incident so that they could connect the pieces of evidence together.

The ROC details how Major Huivejasart and the investigative team analyzed and compared the CCTV footage with the photos received from the Thailand immigration authorities and the We Café, with the information received from the car rental companies, and with the description from the hotel employee of Mr. Dupre’s tattoo in order to identify Mr. Dupre as a suspect in this case. [ 49 ] I find that this evidence, viewed holistically, supports the reasonable inference that Mr. Dupre was involved in the alleged conduct and that the Applicant has established a prima facie case against Mr. Dupre.

That is all that is required at this stage of the extradition process. Conclusion [ 50 ] For the reasons I have provided, I am satisfied that the test for committal under s 29 of the Extradition Act is met. [ 51 ] The ROC, which is admissible and presumptively reliable under the Act , satisfies me that had the alleged conduct occurred in Canada, prosecution would be justified. [ 52 ] I am also satisfied that Mr. Dupre is the person sought by Thailand. [ 53 ] I therefore order Mr.

Dupre’s committal into custody to await a determination by the Minister of Justice whether to surrender him to Thailand. [ 54 ] As is my obligation under s 38(2) of the Extradition Act , I advise Mr. Dupre that he will not be surrendered until the expiry of 30 days from his committal, that he has the right to appeal this ruling and that he has the right to apply for judicial interim release. [ 55 ] Finally, pursuant to s 38(2) of the Act , I direct that the following documents be transmitted to the Minister of Justice: (

a) A copy of the committal order; (

b) A copy of the evidence adduced at this hearing; (

c) Copies of all exhibits introduced at this hearing; and (

d) A copy of this decision. [ 56 ] I would like to thank counsel for their very thorough written briefs and helpful oral submissions. Heard on the 27 th day of September, 2022 Dated at the City of Edmonton, Alberta t his 9 th day of December, 2022.

D. J. Kiss J.C.Q.B.A. Appearances: C.G. Regehr & H. Graham Attorney General of Canada J. Lockyer Lockyer Zaduk Zeeh Counsel for the Person Sought for Extradition _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Madam Justice D. J. Kiss _______________________________________________________ Citation line, “ Attorney General of Canada on Behalf of the Kingdom of Thailand v Dupre, 2022 ABKB 833” was corrected to “ Canada (Attorney General) on Behalf of the Kingdom of Thailand v Dupre, 2022 ABKB 833”. Docket number, “Docket: 2201-76960X1” was correct to “Docket: 220176960X1”. Page numbering was corrected to begin on Page 2 .