2023 QCCA 560, 2023 QCCA 560

Schueppel c. Attorney General of Canada (United States of America) 2023 QCCA 560 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007499-211 ( 500-36-009468-193 ) MINUTES OF HEARING DATE: April 28, 2023 CORAM: THE HONOURABLE GUY GAGNON, J.A. ROBERT M. MAINVILLE, J.A. STEPHEN W. HAMILTON, J.A.

APPELLANT COUNSEL Andrew schueppel Mtre benjamin wilner ( Shadley Knerr ) Mtre JORDAN TREVICK Absent RESPONDENT COUNSEL ATTORNEY GENERAL OF CANADA, on behalf of the United States of America Mtre erin morgan ( Department of Justice Canada ) Absent IMPLEADED PARTY COUNSEL the united states of america Mtre erin morgan ( Department of Justice Canada ) Absent On appeal from a judgment rendered on September 24, 2020 and January 22, 2021 by the Honourable Marc-André Blanchard of the Superior Court , District of Montreal .

NATURE OF THE APPEAL: Extradition . Clerk at the hearing : Lesly Ramos Courtroom: Pierre-Basile-Mignault HEARING 9:33 Commencement of the hearing. Continuation of the hearing held on April 26, 2023. The parties were excused from appearing in Court. BY THE COURT : Judgment – see page 4. Conclusion of the hearing. Lesly Ramos, Clerk at the hearing JUDGMENT [ 1 ] The Appellant, Andrew Schueppel, appeals from two judgments rendered, respectively, on September 24, 2020 [1] and January 22, 2021 [2] by the Honourable Mr.

Justice Marc-André Blanchard, J.S.C. (the “Extradition Judge”), which judgments dismissed his motions for disclosure and for abuse of process and a stay of proceedings.

The January 22, 2021, judgment also ordered the Appellant’s committal pending his extradition to the Requesting State, the United States of America. [ 2 ] Both motions stem from an error that occurred during the certification process of the Requesting State’s record of the case (“ROC”) [3] and supplemental ROC (“SROC”). [4] More specifically, the error pertains to a photograph of the Appellant which – contrary to what the first and second SROCs stated – ultimately was not the photograph taken by United States Border Patrol Agent Dennis Rascoe on November 1, 2010. [ 3 ] The Appellant initially filed two applications for exclusion of evidence, in which he sought to exclude the photograph contained in Exhibit 1 of the ROC.

In the first application, he alleged that this photograph was taken in 2005 – not in 2010 – contrary to what the ROC and the first and second SROCs indicated.

After the Requesting State produced the correct photograph taken by Agent Rascoe on November 1, 2010, the Appellant requested its exclusion since “Officer Rascoe took a photograph of the Applicant without his permission and unbeknownst to him”. [5] [ 4 ] Over the course of the proceedings, the Requesting State abandoned its reliance on the photograph contained in the ROC as well as on the correct photograph contained in the third SROC, alleging that “they were not necessary to make the case for committal”. [6] As a result, the Appellant’s two motions became moot. [ 5 ] The third SROC clearly explains the source of the error, which resulted from confusion between the correct and incorrect photographs: 2.

On November 1, 2010, United States Border Patrol (“USBP”) Agents Rascoe and Paul Allen accompanied by Royal Canadian Mounted Police (“RCMP”) officials to SCHUEPPEL’s residence at their request.

3. When they arrived at SCHUEPPEL’s residence, SCHUEPPEL voluntarily let Agent Allen, Agent Rascoe, and the RCMP officials into his residence. While inside the residence, Agent Rascoe took the photograph that is attached to this Third Supplemental Record of the Case as Exhibit 1 (hereinafter, “Exhibit 1” while SCHUEPPEL sat at his kitchen table. […] 10. Footnote 4 to the original Record of the Case incorrectly states Agent Rascoe took the ROC PHOTO . In 2017, in connection with the original Record of the Case, the prosecutor asked Agent Rascoe who took the ROC PHOTO.

Agent Rascoe indicated that he did because, at the time, he was under the impression the photograph to which the prosecutor referred was Exhibit 1. The prosecutor did not send Agent Rascoe a copy of the ROC PHOTO . 11. In February 2019 , the prosecutor contacted Agent Rascoe and asked who took the picture of SCHUEPPEL at SCHUEPPEL’s house. Agent Rascoe answered that he did. At that time, the prosecutor did not send him a copy of the ROC PHOTO, so Agent Rascoe thought she was referring to Exhibit 1 . 12.

In March 2020 , Agent Rascoe talked with the prosecutor again in connection with preparing the Second Supplemental Record of the Case . During those conversations, Agent Rascoe believed the prosecutor was referring to Exhibit 1 because they discussed the photograph depicting SCHUEPPEL at his kitchen table. Both Exhibit 1 and the ROC PHOTO show SCHUEPPEL sitting at that table. 13. On April 3, 2020 , the prosecutor called Agent Rascoe to discuss the matter further.

Agent Rascoe then sent the prosecutor Exhibit 1 and realized that they had been referring to two different photographs. [ U nderlining added ] [ 6 ] On the one hand, the Appellant seeks additional disclosure from the Requesting State, based on allegations of abuse and allegations of manifest unreliability of the evidence contained in the ROC and SROCs. This position is at the heart of his motion for disclosure. Furthermore, the Appellant submits that he has successfully rebutted the presumption of reliability of the evidence contained in the ROC and SROCs.

To further his claims of abuse of process and of manifest unreliability, the Appellant requests disclosure of the following documents, communications, and particular information: A specification of the date, dates, or range of dates during which the offence listed in the ATP would have been committed; Any and all communications between Ms. Kopita and agents Rascoe and Allen regarding the original photo, the second photo, and the newest photo; Any and all notes and reports made by Ms.

Kopita and agents Rascoe and Allen regarding the original photo, the second photo, and the newest photo; Any and all notes and reports made by agents Allen and Rascoe regarding the events of November 1, 2010; Any and all communications between Mr. Rieck and agents Allen and Rascoe regarding the new photo; Any and all notes and reports made by Mr.

Rieck and agents Allen and Rascoe regarding retrieval of the new photo. [ 7 ] On the other hand, the Appellant argues that the error constitutes evolving evidence that rendered the extradition proceedings so unfair as to undermine the integrity of the justice system, thus amounting to an abuse of process in the residual category.

The Appellant claims that the Requesting State’s alleged misconduct is characterized by bad faith, lack of proper diligence, a laissez-faire attitude, negligence, and perversion of process, which in turn vitiated the overall extradition proceedings. [ 8 ] That being said, notwithstanding the issue of identification evidence, the ROC and SROCs also provide convincing evidence against the Appellant, evidence which he did not attempt to contradict. It is appropriate to set out the

summary of said evidence taken from the Respondent’s brief: - USBP agents Allen and Rascoe [U.S agents] will testify that they were on patrol on November 1, 2010, just south of the Canada- U.S. border near the property of Lee Smith (“Smith”), when they observed the Appellant cross the Canada-U.S. border on an ATV transporting several black hockey-style bags; - USBP agents Allen and Rascoe observed the Appellant back into some brush and pause there before continuing on to Smith’s house.

The agents recovered one of the hockey bags from the brush and found that it contained 53 vacuum-sealed bags of what was later determined to be marijuana. - The agents observed the Appellant speaking to Smith, but when the agents tried to approach him, the Appellant fled back to Canadian territory on his ATV; - Later that same day, RCMP officials requested that USBP agents Allen and Rascoe accompany them to the Appellant’s residence to ask him some questions.

The Appellant voluntarily let the agents inside his home, where USBP agent Rascoe took the photo of him. [7] [ 9 ] The Court further notes that the Requesting State’s evidence also consists of three witnesses who participated in the conspiracy and are aware of the Appellant’s role in the marijuana trafficking described in the ROC, not to mention the wiretap evidence that directly implicates the Appellant in the alleged crimes [8] .

Again, none of this evidence is disputed in the extradition proceedings, except the photograph taken by agent Roscoe which has since been withdrawn from the record. [ 10 ] The Appellant’s arguments in support of both his motions essentially consist in claiming that the additional disclosure would have allowed him to demonstrate that the misconduct of the Requesting State had the effect of rendering the evidence manifestly

unreliable such that the entire extradition procedure was vitiated to the point of undermining the integrity of the justice system when analyzed in terms of the residual category of abuse of process. (

I) Judgment on Disclosure [ 11 ] At the outset, the Appellant argues that the Extradition Judge failed to apply the appropriate disclosure regime provided for in Larosa . [9] [ 12 ] The Extradition Judge approached this issue as follows: [37] Since the person sought has no right to particulars of the offence or any information beyond what is mandated by subsection 15(3).

This aspect of the Applicant’s request for disclosure therefore has no chance of success . […] [42] Firstly, the allegations are not capable of grounding the remedy sought since Courts have noted that there is a very high threshold to meet before a stay of proceedings will be granted, and that this is an exceptional remedy, that will only be granted in the clearest of cases. [43] For the application to succeed, he must demonstrate that if the committal hearing is allowed to proceed, this would aggravate the prejudice he claims to have suffered, and that there is no remedy that could remove the prejudice. [44] Since the Requesting State does not rely on the photos that are at the centre of the present motion for disclosure, a defect in a piece of evidence that is not essential for committal cannot ground a stay of proceedings . […] [47] Also, Schueppel has not shown further information on the mix-up of the previous two photos would have any impact on the test for committal. [48] He also requests disclosure of all notes and communications regarding the events of November 1, 2010, and the newest photo accessed via an online new source but does not identify any Charter breach or misconduct related to these elements . [49] He alleges that the filing of four Supplemental ROCs creates unfairness, without identifying any prejudice caused to him by the substitution of one identification photo for another . [References omitted; underlining added] [ 13 ] Reading the judgment as a whole, in the context of the evidence, the arguments and the hearing, with an appreciation of the purposes or functions for which the judgment was delivered, [10] the Court considers that the Extradition Judge did indeed apply the Larosa test, and did so correctly. [ 14 ] With respect to cases where the person sought seeks to obtain disclosure based on an alleged abuse of process, the Court of Appeal for British Columbia wrote: [26] The “air of reality” criterion will not be satisfied by “wishful thinking” or the mere assertion that the disclosure sought will assist in determining the issue the applicant seeks to raise .

Further, the “air of reality” test will not be satisfied on the basis of vague and unsubstantiated suggestions, or conjecture and speculation .

The required “air of reality” to the abuse of process claim must be demonstrated on the basis of the evidentiary foundation before the extradition judge and the facts and inferences that evidence reasonably supports ; in other words, the test must be satisfied independent of speculative assertions as to what the sought-after disclosure might reveal . [27] […] Finally, allegations of misconduct made against the officials of foreign states should not be given credence in the absence of an evidentiary foundation sufficient to meet the Larosa test . As Romilly J. said in United States of America v.

Feimuth , 2004 BCSC 154 at para. 56 , misconduct allegations directed at foreign authorities are very serious because they impugn the motives and actions of a neighbouring and friendly power with whom Canada has an extradition treaty . [11] [References omitted; underlining added] [ 15 ] The Appellant fails on the “air of reality” front. He has not shown that his request for disclosure is such as to enable him to demonstrate an abuse of process. There are two reasons for this.

First, he has not specifically alleged an infringement of his constitutional rights nor, alternatively, has he provided a concrete evidentiary foundation pointing to a violation of his rights. Second, the Appellant has not shown how the disclosure sought can be relevant to the alleged abuse of process. In fact, his entire argument contains no reference to the requested disclosure. On the contrary, the abuse of process allegations are based solely on the imbroglio that surrounded the production of the incorrect photograph.

The Appellant infers from this error that the ROC and the SROCs were not prepared diligently and in good faith, but he does so without even attempting to establish a link between these allegations and the documents enumerated in his request for disclosure. [ 16 ] In addition, his motion for disclosure resembles a fishing expedition. He does not know exactly what he is looking for in all the requested documents, communications, and particular information.

His claims seem empty and broad, akin to “vague and unsubstantiated suggestions, or conjecture and speculation”. [12] The Appellant cannot show an “air of reality” with his “mere assertion that the disclosure sought will assist in determining the issue [he] seeks to raise”. [13]

[ 17 ] The Appellant also seeks disclosure to challenge the reliability of the ROC and SROCs. Here, too, the Appellant fails on the “air of reality” front. He has not put forward “an evidentiary basis demonstrating that the disclosure sought is likely to rebut the presumption of reliability”. [14] It cannot be said that “the disclosure is necessary to allow for meaningful scrutiny of the issues properly raised at the committal stage of the process”. [15] [ 18 ] In addition, the Appellant erroneously claims that he has rebutted the presumption of reliability of the ROC and SROCs.

In fact, the good faith error committed by the Requesting State, which, moreover, relates to evidence that has since been abandoned, cannot have the effect of rebutting the presumption of reliability, since the Appellant does not dispute the rest of the evidence contained in the ROC and SROCs. [ 19 ] In this case, the Appellant has failed to put forward evidence showing fundamental inadequacies or frailties in the material relied on by the Requesting State.

His alleged concerns cannot “justify the complete rejection of the evidence”. [16] In any event, the two photographs at issue are best described as secondary evidence, since the Requesting State already has direct evidence for the purpose of identifying the Appellant – notably, the testimony of Agents Rascoe and Allen, who visited the Appellant on November 1, 2010 [17] . For all these reasons, the presumption of reliability of the ROC and SROCs stands. [ 20 ] In short, the Appellant has failed to show that the judgment on the motion for disclosure warrants the Court’s intervention.

He has also failed to show that the judge misdirected himself or came to a decision that is so clearly wrong that it amounts to an injustice or gives no or insufficient weight to relevant considerations. (II) Judgment on Abuse of Process [ 21 ] The appellant criticizes the impugned judgment for having dealt with the issue of abuse of process solely from the perspective of the fairness of the extradition proceedings by concluding that he had not suffered any prejudice, a conclusion the Appellant does not seem to dispute.

In doing so, he argues, the Extradition Judge failed to address the residual category of abuse, [18] which includes conducts that “connote[s] unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process”. [19] [ 22 ] The following are the relevant passages of the impugned judgment to which this grievance relates: [48] The Applicant’s request for a stay is based on a single issue which is no longer relevant to the

section 29 inquiry – a good faith mix-up between the first and the second photos . […] [50] The U.S. attorney’s error has been fully explained and corrected by the third supplemental, which is presumed to be reliable. Unless there is evidence of the contrary, the extradition judge must presume that foreign officials have acted in good faith. [51] There is no evidence that the U.S. authorities have acted maliciously . There is no evidence that this confusion regarding the photos impacted the reliability of the other evidence in the record , which is extensive.

There is no evidence that it would interfere with the conduct of a fair committal hearing. […] [54] In contrast, Mr Schueppel has not suffered any prejudice as a result of the mix-up regarding the two photos, which are now irrelevant for committal, except for the inconvenience of demonstrating the origin of the first photo and awaiting the explanation of the Requesting State in the third supplemental.

This is not a prejudice that would be perpetuated or aggravated by allowing the hearing to proceed. […] [57] Schueppel has not demonstrated any flaw in the evidence relied upon by the Requesting State for committal, which still benefits from a presumption of reliability.

The photo mix-up has no connection to this evidence , which includes the testimony of three members of the conspiracy who have knowledge of the Applicant’s role in trafficking marijuana, recorded conversations between members of the conspiracy implicating Schueppel, and the eyewitness accounts of the USBP agents who observed him transporting bags across the border, one of which was recovered and determined to contain marijuana. [58] There is therefore no prejudice to the fairness of proceedings against Schueppel in allowing the committal hearing to proceed. [59] Furthermore, the administration of justice favours honoring Canada’s obligations to its treaty partners and allowing the committal hearing to proceed .

It is also not one of the clearest of cases that warrant a stay of proceeding . [ References omitted; underlining added ] [ 23 ] Admittedly, the Extradition Judge did not directly address the issue of disrepute of the justice system.

However, as a whole, his determinations that (1) the Requesting State acted in good faith, (2) the Requesting State adequately explained the cause of its error, (3) the error had no impact on the reliability of the remaining evidence, and (4) “the administration of justice favours honoring Canada’s obligations to its treaty partners and allowing the committal hearing to proceed” constitute a convincing set of factors militating against a finding that the record demonstrates circumstances likely to undermine the integrity of the judicial process.

[ 24 ] In addition, the case at bar is not one where the impugned conduct violates those principles of fundamental justice that underlie the community’s sense of decency and fair play. Neither the Respondent nor the Requesting State have gained a comparative advantage over the Appellant by acting as they did. [ 25 ] The factual matrix of the present case does not evidence a certification process that “[fell] so far below an expected reasonable standard to amount to a complete failure of due diligence”. [20] Perhaps there may have been a momentary lack of diligence in relation to the photograph, but nothing more.

The Extradition Judge described it as a bona fide mix-up, and this determination contains no reviewable error. By no means was there a “complete failure”. [21] On the same question, co-authors Dennison and Weinstein write: [22] Circumstances where the process of certification amounts to an abuse of process are, however, extremely rare. Tarantino has been described as an “exceptional case” and appears to be grounded on the basis that the requesting state knowingly certified the inaccuracies in the ROC. Simple errors or corrections made to ROCs have not been found to amount to an abuse of process.

Indeed, it appears that knowingly certifying incorrect information is often the basis for distinguishing other cases where the certification process was lacking. [References omitted; underlining added] [ 26 ] The Appellant has therefore failed to show that the error made by the Requesting State tends to undermine society’s expectations of fairness in the administration of justice. [23] FOR THESE REASONS, THE COURT : [ 27 ] DISMISSES the appeal. GUY GAGNON, J.A. ROBERT M. MAINVILLE, J.A. STEPHEN W. HAMILTON, J.A.