2018 QCCA 427, 2018 QCCA 427

Chengberlin c. Procureure générale du Canada (États-Unis d'Amérique) 2018 QCCA 427 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N o : 500-10-006159-162 (500-36-007377-149) PROCÈS-VERBAL D'AUDIENCE DATE : Le 15 MARS 2018 CORAM : LES HONORABLES ALLAN R. HILTON, J.C.A. CLAUDINE ROY, J.C.A. CAROL COHEN, J.C.A. (ad hoc) APPELANT AVOCAT DEWO CHENGBERLIN m e ANDREW BARBACKI (André Barbacki, avocat) INTIMÉE AVOCATE PROCUREURE GÉNÉRALE DU CANADA pour les États-Unis d’Amérique Me CONSTANTINA ANTONOPOULOS (Ministère de la Justice Canada) En appel d'un jugement rendu le 19 mai 2016 par l'honorable Michel Pennou de la Cour supérieure, district de Montréal.

NATURE DE L'APPEL : Extradition – Jugement de la Cour supérieure Greffière d’audience : Ermioni Tomaras Salle : Antonio-Lamer AUDITION 10 h 35 Début de l’audience. Argumentaire de Me Barbacki. 11 h 11 Argumentaire de Me Antonopoulos. 11h 29 Réplique de Me Barbacki. 11 h 31 Suspension de l’audience. 11 h 38 Reprise de l’audience. Le juge Hilton informe les parties que l’appel est rejeté, les motifs seront déposés au procès-verbal en date d’aujourd’hui. PAR LA COUR : voir jugement – page 3. Fin de l’audience. (

s) Ermioni Tomaras Greffière d’audience BY THE COURT JUDGMENT [ 1 ] The United States of America sought the extradition of the appellant to stand trial in Colorado on drug related charges. On January 8, 2015, an Authority to Proceed (“ATP”) was issued in accordance with the Record of the Case (“ROC”), listing the Canadian offence of: Trafficking in a substance included in

Schedule I of the Controlled Drugs and Substances Act , contrary to section 5(1) of the Controlled Drugs and Substances Act . [ 2 ] On May 19, 2016, Pennou, J. granted the extradition request by the United States and ordered the committal of the appellant into custody, awaiting surrender in accordance with the ATP. [ 3 ] The appellant requests this Court to set aside the judgment, arguing that the judge erred in his review of the evidence and in the inferences he drew from this evidence.

The appellant is also arguing that the judge erred in refusing to order access to additional evidence for the purpose of the committal hearing, namely a photo which allegedly shows him mailing a package containing 863 pills of a controlled substance. [ 4 ] The United States pleads that the extradition judge made no reviewable errors and that the evidence adduced at the committal hearing could reasonably support an inference of guilt, based upon the criteria set out by the Supreme Court of Canada in M.M. [1]

[ 5 ] The appeal should be dismissed. [ 6 ] The standard of review on an appeal from a committal order is correctness on questions of law and palpable and overriding error on questions of mixed fact and law. The extradition judge committed no such error. [ 7 ] On the issue of sufficiency of the evidence, the judge concluded that the ROC and evidence submitted by the United States was sufficient to draw a reasonable inference of guilt.

In particular, he listed (at paragraph 51) 12 facts which he felt permitted the Court to draw such a reasonable inference, after which he added the following comment at paragraph 52 of the judgment: By saying that such reasonable inferences can be drawn, the Court is in no way suggesting these are the only inferences that could be drawn from the evidence presented.

The Court is not suggesting that the case mounted against Chengberlin is a strong one or that it does not present numerous and significant gaps. [ 8 ] The judge did not commit a palpable and overriding error in deciding that the evidence justified appellant’s committal in order to await surrender to the United States, despite his comment that the case mounted against him might not be a strong one. The reasonable inference of guilt need not be the only inference, so long as it is a reasonable one. [ 9 ] Before the extradition judge, the appellant also relied upon

section 7 of the Canadian Charter in order to claim that his rights were violated when the United States refused to disclose a photograph allegedly showing him mailing a package of 863 pills of a controlled substance. [ 10 ] This ground of appeal also fails. [ 11 ] The judge dealt with the request for disclosure at paragraphs 22 and following of the judgment. He rightly noted at paragraph 29 that an extradition judge is competent to grant Charter remedies, but only insofar as the Charter breach pertains directly to the circumscribed issues relevant at the committal stage.

This was not such a case. [ 12 ] The right to disclosure does not apply to its fullest extent in the context of a committal hearing [2] and the rules in Stinchcombe [3] do not apply to extradition proceedings, as the right to full answer and defense is not engaged and the extradition process is not concerned with issues of guilt or innocence. FOR THESE REASONS, THE COURT: [1] DISMISSES the appeal. ALLAN R. HILTON, J.A. CLAUDINE ROY, J.A. CAROL COHEN, J.A. (AD HOC)