2016 MBCA 90, 2016 MBCA 90

Citation: Canada (Attorney General) v Sunduk, Date: 20160919 2016 MBCA 90 Docket: AR14-30-08274 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Alan D. MacInnes Madam Justice Janice L. leMaistre BETWEEN : THE ATTORNEY GENERAL OF ) J. C. Prober and CANADA on behalf of THE UNITED ) B. T. King STATES OF AMERICA ) for the Appellant ) (Applicant) Respondent ) N.

Reddy ) for the Respondent - and - ) ) SHAUN SUNDUK ) Appeal heard and ) Decision pronounced: (Respondent/Person Sought) Appellant ) September 19, 2016 On appeal from 2014 MBQB 204 , 311 ManR (2d) 88 HAMILTON JA (for the Court): [ 1 ] The appellant appeals the order of a judge of the Court of Queen’s Bench (the extradition hearing judge) committing him into custody for extradition to the United States (the US) pursuant to

section 29 of the Extradition Act , SC 1999, c 18 (the Act ). [ 2 ] He is sought for prosecution in the US on allegations that he participated in drug trafficking. The authority to proceed, issued under

section 15 of the Act , identifies three Canadian offences contrary to

section 5 of the Controlled Drugs and Substances Act , SC 1996, c 19 (the CDSA ), that correspond to the conduct alleged by the US, namely: 1) trafficking in a controlled substance; 2) conspiracy to traffic in a substance represented or held out to be a controlled substance; and 3) trafficking in a substance represented or held out to be a controlled substance. [ 3 ] The record of the case for prosecution (the ROC) describes a series of transactions in which the appellant agreed to sell ecstasy pills to an undercover special agent (the UC) employed by the US Drug Enforcement Administration.

One of the transactions resulted in the arrest by US authorities of an alleged co-conspirator (RH) of the appellant. [ 4 ] The evidence outlined in the ROC includes evidence from the UC and RH, who are expected to testify at the trial. [ 5 ] Prior to, and during the course of the committal hearing, the extradition hearing judge: 1. d ismissed the appellant’s preliminary motion under section 24(1) of the Canadian Charter of Rights and Freedoms (the Charter ) for additional documentary disclosure in which he sought, among other things, the identity of the UC, all of the recorded conversations and text messages obtained by the UC and the statement of RH.

Alternatively, he sought a stay of proceedings or the exclusion of evidence under section 24(2) of the Charter . She concluded that there was no basis for his abuse of process allegations, that several of the appellant’s arguments were premature and would be dealt with at the committal hearing, and that there was no air of reality to his assertion that the evidence of RH and UC was manifestly unreliable; 2. dismissed the appellant’s application, under

section 32 of the Act , to adduce expert evidence from two retired Winnipeg police officers to show that the terms “double stack” and “single stack” referenced in the ROC, in the context of words used by the appellant in conversation with the UC, were not words used in Canada in connection with the sale of ecstasy. The extradition hearing judge concluded that the proffered expert evidence related to issues for trial, but was not relevant to issues that she must decide. See section 32(1)(

c) of the Act ;

3. was “satisfied that the whole of the evidence as set out in the ROC is capable of supporting a prima facie case” (at para 36), andtherefore there was evidence sufficient to satisfy the test for committal under the Act. In doing so, she found that the evidence wasreasonably capable of supporting the inference that the appellant represented or held out substances to be ecstasy; 4. found that the requirement for “double criminality” was established as the alleged conduct would amount to the criminaloffences in Canada, as set out in the authority to proceed (see

section 15 of the Act).

She stated that the ROC was not deficient because itdid not state the US charges and that an extradition judge is not to consider the foreign offences for the purpose of determining whetherthe test for committal has been met; and 5. found that there was no air of reality to the appellant’s allegation of abuse of process related to the fact that the substancealleged to be held out by the appellant to be ecstasy was not, at the time, a scheduled drug under the CDSA. [6] The appellant appeals the order of committal on the basis that the above rulings, findings and conclusions of theextradition hearing judge are errors of law.

He has not sought judicial review of the subsequent order of the Minister of Justice for theappellant to surrender on the US charges. [7] The appellant has not persuaded us that appellate intervention is warranted. He has not demonstrated that the order ofcommittal was unreasonable, that it cannot be supported by the evidence, that it resulted from an error of law or that it amounts to amiscarriage of justice. See

section 53 of the Act. [8] The extradition hearing judge provided written reasons for dismissing the appellant’s two preliminary motions and forcommitting the appellant into custody for extradition to the US. Her reasons are detailed and thorough with respect to the facts, theparties’ positions and the applicable principles. They demonstrate that she understood the many issues before her and that she appliedthe applicable law and jurisprudence.

For example, see United States of America v Dynar, (SCC), [1997] 2 SCR 462;United States of America v Ferras; United States of America v Latty, 2006 SCC 33, [2006] 2 SCR 77; and Canada (Justice) vFischbacher, 2009 SCC 46, [2009] 3 SCR 170. She understood that the committal phase of the extradition process “serves an important,but circumscribed and limited screening function” (MM v United States of America, 2015 SCC 62 at para 36, [2015] 3 SCR 973). Weare in agreement with the decisions and reasoning of the extradition hearing judge. [9] Accordingly, the appeal is dismissed. JA JA JA