Rowan v Canada (Attorney General), 2018 SKCA 104

Court of Appeal for Saskatchewan Docket: CACR2933 Citation: Rowan v Canada (Attorney General) , 2018 SKCA 104 Date: 2018-12-31 Between: James Alan Rowan Appellant (And Person Sought for Extradition) And The Attorney General of Canada (on behalf of the United States of America) Respondent Between: James Alan Rowan Applicant (And Person Sought for Extradition) And The Minister of Justice and the Attorney General of Canada Respondent Before: Jackson, Ottenbreit and Whitmore JJ.A.

Disposition: Appeal dismissed, application for judicial review denied Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Whitmore On Appeal From: 2017 SKQB 95 , Saskatoon Appeal Heard: May 11, 2018 Counsel: Christopher Veeman for the Appellant Sean Sass for the Respondent Jackson J.A. I. Introduction [ 1 ] James Alan Rowan has been indicted by the United States of America for offences that are the equivalent of fraud in Canada. [1] The United States alleges that Mr.

Rowan, in his capacity as the Chief Executive Officer of Enviro-Energies LLC, falsely advertised that his company had developed a new, roof-mounted wind turbine (the Mag-Wind Vertical Axis Turbine [Turbine]) that could produce higher than usual amounts of electricity for such a device. Mr.

Rowan is alleged to have known his Turbine did not perform as advertised, but, nonetheless, continued to solicit money for Enviro-Energies. [ 2 ] Upon receiving a request for extradition, the Minister of Justice [Minister] issued an authority to proceed to the Attorney General, under s. 15 of the Extradition Act , SC 1999, c 18, which authorized the Attorney General to seek an order for committal. [ 3 ] As part of the committal process, the United States certified a record of the case and submitted it to the Attorney General in compliance with s. 33 of the Extradition Act .

The record of the case includes the summaries of the testimony of nine individuals who would be expected to testify at trial, six of whom had been engaged in business dealings with Mr. Rowan. The record of the case alleges Mr. Rowan sold distribution rights for the Turbine and, when individuals requested their money back, he converted their distribution rights into Enviro-Energies stock certificates. In some instances, Mr.

Rowan is alleged to have sold stock certificates that were never delivered. [ 4 ] Having a record of the case, and an authority to proceed, the Attorney General sought a hearing before a judge of the Court of Queen’s Bench and an order for Mr. Rowan’s committal into custody under s. 29. In written reasons, a judge of the Court of Queen’s Bench ordered that Mr. Rowan be committed into custody to await surrender to the United States: Canada (Attorney General) v Rowan , 2017 SKQB 95 at para 63 [ Committal Decision ]. [ 5 ] Following receipt of the Committal Decision , Mr.

Rowan opted to make submissions to the Minister under s. 43(1) of the Extradition Act . On August 24, 2017, the Minister, after considering the matter and the submissions, including new issues raised by Mr. Rowan, ordered that he be surrendered to the custody of the United States in accordance with s. 40 of the Extradition Act [ Surrender Order ]. [ 6 ] Mr. Rowan now appeals the Committal Decision under s. 49 and seeks judicial review of the Minister’s Surrender Order under s. 57.

An appeal court can hear the appeal from a committal decision and an application for judicial review of the Minster’s order in one hearing pursuant to s. 57(9). Mr. Rowan also makes two further applications to this Court. He applies to adduce fresh evidence directed to the issue of his committal and he applies for an extension of time to make that application. [ 7 ] For the reasons that follow, I would allow Mr. Rowan to make his fresh evidence application late but, in the result, I would refuse to admit the fresh evidence.

I would also dismiss his appeal with respect to the Committal Decision and his application for judicial review of the Surrender Order .

II. Issues [8] In this judgment, I will consider the following broad questions: (

a) Should the fresh evidence be admitted? (

b) Applying the governing standard of review from the Extradition Act, is the Committal Decision unsupported by theevidence? (

c) Applying the governing standard of review with respect to judicial review applications, is the Surrender Order reasonable? III. Should the Fresh Evidence Be Admitted? A. The Evidence [9] The evidence consists of an affidavit from Mr. Rowan, presenting a waybill, which appears to show he had shipped aTurbine to Mike Angelo Leone. This waybill appears to contradict, at least in part, one individual’s evidence as contained in the record ofthe case. Mr.

Rowan asks this Court to receive this evidence and quash the Committal Decision on the basis that if the extradition judgehad been aware of this evidence, he would not have committed him into custody to await extradition. B. The Framework to Consider the Fresh Evidence [10] Subsection 52(1) of the Extradition Act provides that certain sections of the Criminal Code apply, including s. 683(1)(d),which allows appellate courts to receive fresh evidence: Powers of court of appeal 683(1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice, … (

d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness … . [11] Mr. Rowan relies upon United States of America v Schulman, 2001 SCC 21, [2001] 1 SCR 616 [Schulman], to support hissubmission that the evidence should be admitted and, once admitted, should lead to a quashing of the Committal Decision. Schulmanconfirms an appellate court’s power to receive fresh evidence under the Extradition Act and affirms the applicability of the factors fromR v Palmer, (SCC), [1980] 1 SCR 759 [Palmer], in an extradition context.

The Palmer factors, which will be reviewedmore fully later in these reasons, may be described summarily as the following: diligence, relevance, credibility and materiality. C. The Nature of a Committal Order and an Extradition Judge’s Authority [12] Mr. Rowan asks this Court to assess and ultimately set aside the Committal Decision on the basis of the fresh evidence.

Giventhe particular nature of the extradition process, his arguments require this Court to consider exactly what a committal decision decidesand the authority of an extradition judge to receive evidence that might be used to challenge the record of the case. [13] Subsection 29(1) establishes the legislative parameters of an extradition judge’s powers: Order of committal 29(1) A judge shall order the committal of the person into custody to await surrender if (

a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada,would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person isthe person sought by the extradition partner … . (Underline emphasis added) [14] The authority of the extradition judge under s. 29(1)(

a) to receive defence evidence and weigh the sufficiency and reliabilityof the record of the case has been considered extensively by the Supreme Court. There are two, modern foundational decisions: UnitedStates of America v Ferras, 2006 SCC 33, [2006] 2 SCR 77 [Ferras]; and M.(M.) v United States of America, 2015 SCC 62, [2015] 3SCR 973 [M.(M.)]. [15] In Ferras, the Court declared that the certification of evidence under s. 33(3)(

a) of the Extradition Act “raises a presumptionthat the evidence in a record of the case is reliable” and that “[u]nless challenged, certification establishes reliability” (at para 52). This,then, is the starting point. When the United States certified Mr. Rowan’s record of the case, it became presumptively reliable, unlesssuccessfully challenged. [16] A person who faces extradition may adduce evidence challenging the reliability of the record of the case, but what can beadduced, and how the extradition judge assesses reliability and sufficiency, has been the subject of critical comment by the Supreme

Court. [17] The Supreme Court has made it clear that an extradition judge’s ability to critically assess the evidence contained in the recordof the case is limited (Ferras at para 54). While different expressions are used to describe the standard that must be met, a recurringdescription is that of a “plausible case”, as used in Ferras: [54] Challenging the justification for committal may involve adducing evidence or making arguments on whether the evidence could bebelieved by a reasonable jury.

Where such evidence is adduced or such arguments are raised, an extradition judge may engage in alimited weighing of evidence to determine whether there is a plausible case. The ultimate assessment of reliability is still left for the trialwhere guilt and innocence are at issue. However, the extradition judge looks at the whole of the evidence presented at the extraditionhearing and determines whether it discloses a case on which a jury could convict.

If the evidence is so defective or appears so unreliablethat the judge concludes it would be dangerous or unsafe to convict, then the case should not go to a jury and is therefore not sufficient tomeet the test for committal. (Emphasis added) [18] In M.(M.), the Supreme Court further clarified the extradition judge’s role. In M.(M.), the United States had applied for theextradition of a parent on charges of interstate interference of custody, which would be the equivalent of abduction under the CriminalCode.

The extradition judge had denied the order of committal after admitting evidence that demonstrated the father was abusive (see thetrial decision, United States of America v M.(M.), 2011 QCCS 4800). In doing so, the extradition judge considered the defence ofnecessity under s. 285 of the Criminal Code, which is a Canadian statutory defence to abduction in circumstances where a child is indanger of imminent harm.

The Quebec Court of Appeal reversed the extradition judge’s decision (see United States of America v M.(M.),2012 QCCA 1142), holding that the extradition judge had incorrectly admitted exculpatory evidence aimed at undermining the record ofthe case by considering the parent’s defence. On appeal, the Supreme Court upheld the Court of Appeal’s decision. The majoritydecision, written by Cromwell J., contains several important statements regarding the extradition process. [19] First, as expressed by Cromwell J. in M.(M.), an extradition judge is limited as to the evidence that can be considered in acommittal hearing.

A committal hearing is not a trial, so questions going to the heart of the charge are beyond the scope of the hearing: [36] The committal phase of the extradition process serves an important, but circumscribed and limited screening function.

The role ofthe extradition judge is simply to decide whether he or she is satisfied that the person before the court is the person sought and whether“there is evidence admissible under [the Extradition Act and available for trial] of conduct that, had it occurred in Canada, would justifycommittal for trial in Canada on the offence set out in the authority to proceed”: s. 29(1)(

a) of the Extradition Act; see also Ferras, atpara. 50. … [38] Thus, the language of s. 29(1)(

a) links the role of the extradition judge in relation to double criminality to the test for committal (anddirected verdicts). The incorporation of the test for committal to trial is meant to make the extradition process efficient, permittingprompt compliance with Canada’s international obligations, while also ensuring that there is at least a prima facie case against the personof a Canadian crime: see, e.g., United States of America v. Dynar, (SCC), [1997] 2 S.C.R. 462 (S.C.C.), at paras. 121–22; Ferras, at para. 21.

The extradition judge’s role is to determine whether there is a prima facie case of a Canadian crime, not tobecome embroiled in questions about possible defences or the likelihood of conviction.

Extradition hearings are not trials; they areintended to be “expeditious procedures to determine whether a trial should be held”: Dynar, at para. 122, quoting [McVey (Re); McVey vUnited States of America], (SCC), [1992] 3 S.C.R. 475 (S.C.C.), at p. 551. (Italic emphasis added by Cromwell J., underline emphasis added) [20] Second, while noting the link between the role of the extradition judge and the test for committal and for a directed verdict,Cromwell J. nonetheless confirmed the presence of two important differences: (

a) an extradition judge, unlike a preliminary inquiry judge, may grant Charter remedies that pertain directly to thecircumscribed issues relevant to committal (at para 55); and (

b) an extradition judge, unlike a preliminary inquiry judge, must engage in a limited weighing of the evidence to determinewhether there is a plausible case (at para 62). [21] Nonetheless, Cromwell J. affirmed that the “threshold” is high and the extradition judge can refuse committal in limitedcircumstances only: [63] This means that there continues to be a high threshold for refusing committal on the basis that the supporting evidence is unreliable.It is only where the evidence supporting committal is “so defective or appears so unreliable” or “manifestly unreliable” that it would be“dangerous or unsafe” to act on it that the extradition judge is justified in refusing committal on this basis. (Emphasis added) [22] Later in his reasons, while reiterating the high threshold for refusing committal, Cromwell J. also indicated that an extraditionjudge has a role to remove evidence from consideration – but, again, only in limited circumstances.

An extradition judge can onlyeliminate evidence determined to be “so defective” or “so unreliable” that its complete rejection is warranted: [71] In particular, I largely agree with the

interpretation of Ferras given by Doherty J.A. writing for the court in United States of Americav. Anderson, 2007 ONCA 84, 85 O.R. (3d) 380 (Ont. C.A.) at paras. 28–31. Ferras “does not envision weighing competing inferencesthat may arise from the evidence”, other than in the limited sense noted in Arcuri [2001 SCC 54] of considering that the inferencessought to be drawn from circumstantial evidence are reasonable: Anderson, at para. 28. Ferras does not contemplate that the extradition

judge will decide whether a witness is credible or his or her evidence is reliable beyond determining that the evidence is not “so defective” or “so unreliable” that it should not be given any weight: Anderson , para. 30 . Ferras does not call upon the extradition judge to evaluate the relative strength of the case put forward by the requesting state. There is no power to deny extradition simply because the case appears to the extradition judge to be weak or unlikely to succeed at trial.

Ferras requires the extradition judge, however, to remove evidence from consideration that appears to the judge to be “so defective” or “so unreliable” that it should be disregarded .

This may be the result of problems inherent in the evidence itself, problems that undermine the credibility or reliability of the source of the evidence, or a combination of those two factors. [72] I also agree with Doherty J.A. that “ it is only where the concerns with respect to the reliability of the evidence, whatever the source or sources, are sufficiently powerful to justify the complete rejection of the evidence, that these concerns become germane to the s. 29(1) (

a) inquiry ”: Anderson , at para. 30 . The extradition judge’s starting point is that the certified evidence is presumptively reliable: see Ferras , at paras. 52–56 . This presumption may only be rebutted by evidence showing “fundamental inadequacies or frailties in the material relied on by the requesting state”: Anderson , at para. 31 . … [76] However – and this is a key point – the relevance requirement is linked directly to the test for committal under s. 29 of the Extradition Act .

In other words, the evidence must be relevant to the task of the extradition judge , that is, whether the test for committal under s. 29(1) of the Extradition Act has been met. (This relevance requirement is the same whether the evidence is otherwise admissible under Canadian law or not.) To decide whether the proffered evidence is relevant in this sense, the extradition judge must consider the proposed evidence in the light of the limited weighing of evidence which he or she must undertake in applying the test for committal. … [78] I conclude that in order to admit evidence from the person sought, directed against the reliability of the evidence of the requesting state, the judge must be persuaded that the proposed evidence, considered in light of the entire record, could support the conclusion that the evidence essential to committal is so unreliable or defective that it should be disregarded . (Italic emphasis in original, underline emphasis added) [ 23 ] By way of application of these principles, in M.(M.) , Cromwell J. held that the extradition judge erred by improperly relying on exculpatory evidence pertaining to a defence and not giving weight to the presumption of reliability of the record of the case.

Even though the evidence was capable of supporting both the judge’s conclusion and the requesting state’s assertions, it did not rise to the threshold of manifest unreliability that would justify refusing committal. [ 24 ] In

summary, s. 29(1) of the Extradition Act requires an extradition judge to consider whether the evidence, through a record of the case, if applicable, justifies committal. If a record of the case is available, there is a presumption of reliability. The individual can rebut that presumption by providing evidence that attacks the reliability of the evidence. However, such evidence must demonstrate that the record of the case is so unreliable (expressed in terms of manifest unreliability) so as to justify refusal of a committal order. This is a high standard.

Defences and evidence that are exculpatory are excluded from the analysis because neither are relevant to the question of the sufficiency of the record of the case. If the extradition judge finds that the record of the case is reliable and sufficient, he or she must grant the committal order. The fundamental point is that an extradition hearing is not a trial and any arguments made to rebut the record of the case must relate to the ultimate question of whether the evidence is sufficient to justify committal, and not to innocence or guilt.

Bearing this framework in mind, I now turn to consider the evidence examined by the extradition judge and how he weighed that evidence. D. The Committal Decision [ 25 ] The extradition judge reproduced the record of the case in its entirety in his reasons. In

summary, the record of the case describes the evidence presently available for prosecution, including anticipated evidence that will be received from a number of witnesses who provided money to Mr. Rowan and Enviro-Energies based on allegedly fraudulent representations and claims made by Mr. Rowan. In total, nine witness statements were presented to the extradition judge: Mr. Holloman, Mr. Catalano, Ms. Leone, Mr. Leone, Mr. Vanloan Jr., Mr. O’Brien, Mr. Crant, Special Agent Cox, and a Securities and Exchange Commission [SEC] employee. [ 26 ] Mr.

Holloman states he invested approximately US$420,000.00 in Enviro-Energies, in October of 2008, on the understanding he would receive stock certificates in exchange for his investment, but he never received stock certificates or a refund. [ 27 ] Mr. Catalano states he paid US$270,000.00 to Mr. Rowan and Enviro-Energies, in March of 2011, in exchange for stock certificates, but he never received stock certificates or a refund. [ 28 ] Mr. Vanloan Jr. states he paid Mr. Rowan and Enviro-Energies US$10,000.00 for the rights to distribute the Turbine. When he did not receive any product, Mr.

Rowan informed him his investment would be used to purchase stock certificates, but he did not receive any stock certificates. [ 29 ] Similarly, Mr. O’Brien states he paid Mr. Rowan and Enviro-Energies US$50,000.00 for dealer and distribution rights to distribute the Turbine but he did not receive any product. He, too, was told that his investment would be converted into stock certificates, but he did not receive stock certificates either. [ 30 ] Ms. Leone states she paid Mr.

Rowan and Enviro-Energies US$50,000.00 for a Turbine and rights to a geographic area for distribution and sale of the product but she did not receive the product she paid for or a refund. [ 31 ] Mr. Leone states he paid US$25,000.00 for the purchase of a Turbine from Mr. Rowan and Enviro-Energies, but that he did not receive a Turbine. By contacting American Express, he was refunded the purchase money, but he did not receive a refund from

Mr. Rowan or Enviro-Energies. [ 32 ] At the committal hearing, Mr. Rowan applied to the extradition judge to admit evidence in an attempt to rebut the record of the case. Mr. Rowan submitted three affidavits, including one from himself, and one each from David Sabina and Wayne Horan. Mr. Rowan’s affidavit consisted of 233 pages with a 16-page affidavit proper and 217 pages of appended documents. Mr. Sabina’s affidavit consisted of 109 pages (with a 4-page affidavit and 105 pages of appended documents). Mr.

Horan’s affidavit consisted of 86 pages (of which, 4 pages were a sworn affidavit, with 82 documents appended). [ 33 ] In describing this evidence, the extradition judge referred to the “limited scope that such affidavits could have at this stage (the extradition hearing stage) of the proceedings” ( Committal Decision at para 8). He described Mr. Rowan’s affidavit as advancing “a principle of his defence, that being that he did not have an intention to commit any improper or illegal act” (at para 9). With respect to Mr.

Sabina’s affidavit, the extradition judge described it as an expression of the deponent’s opinion that “nothing appeared to be inappropriate” (at para 10). Regarding Mr. Horan’s evidence, the extradition judge noted that the deponent had assumed the corporate position occupied by Mr. Rowan in 2010. The affidavit was intended to show that Mr. Rowan had not been involved in any of the processes subsequent to that date.

In admitting this evidence, the extradition judge described it as having “limited utility or probative value at the hearing” (at para 12). [ 34 ] After reviewing the legislative provisions of the Extradition Act , and its operative framework as set by the Supreme Court jurisprudence, including the paragraphs referred to above from Ferras and M.(M.) , the extradition judge wrote as follows ( Committal Decision ): [54] Respondent’s counsel, as I have noted, very artfully examined the evidence of each of the proposed witnesses referenced in the record of the case and pointed to, in his view, significant and potential difficulties with the various items of the proposed evidence.

It is Mr. Veeman’s position, in opposition to that of Mr. Sass, that the evidence is inherently unreliable and that it would be dangerous to commit the respondent based upon that evidence. [55] I am satisfied that Mr. Veeman has for some of the evidence provided a cautionary foundation in considering that evidence. Is that, however, enough to defeat the limited evidentiary assessment which I am required to bring to this proceeding? I have after much deliberation concluded that it does not.

I am satisfied that the record of the case provides a foundation for different applications of the broad test for fraud as set forth in s. 380 of the Criminal Code . The reality is that a number of people provided a significant amount of money to James Alan Rowan based upon a variety of representations made by him to those individuals causing them to in one form or another invest in his wind turbine project. It would appear from the record of the case that virtually none of these individuals received valuable consideration back from James Alan Rowan when they had reasonable and unchallenged expectations to do so.

Each of the witness statements contained in the record of the case for prosecution chronicles circumstances which could reasonably be said would fall under the broad auspices of fraud in s. 380 of the Criminal Code . [56] One such example is found in

summary of the evidence of Michael Leone. I have set forth at the outset what Michael Leone’s

summary of evidence would be, however, I reference again specifically para. 22, a matter which I raised with Mr. Veeman for his commentary. Paragraph 22 is part of Michael Leone’s evidence, and it provides: 22. Upon arriving back to Hawaii, Leone wired Rowan $25,000.00 US dollars via PayPal, using Leone’s American Express credit card. This was a deposit toward the purchase of one Mag-Wind turbine unit. Leone was working toward getting the additional $25,000 together for the second unit that would guarantee him the right to be the Hawaii distributor.

Four or five months later, however, Rowan still had not delivered the Mag-Wind turbine he had sold to Leone. Leone requested his money back from Rowan, however, Rowan refused citing Leone’s so-called “dealer obligation”. Leone continued to press Rowan for a refund. Rowan told Leone that he wanted to convert Leone’s deposit into stock in Enviro-Energies. Leone told Rowan that he never wanted to invest and only wanted the turbines. Because Leone was buying a product via American Express and PayPal, Leone attempted to reverse his $25,000.00 deposit through a credit-card chargeback dispute.

Rowan fought Leone’s attempted chargeback by falsely claiming that the unit had, in fact, been delivered to Leone. American Express supported Leone in this disputed transaction and reversed the charge. [57] A reasonable

interpretation to place upon this paragraph is that the respondent misled both Michael Leone and American Express. The jurisprudence surrounding the parameters of the hearing before me dictate that I must assume that the contents of such a paragraph are true. On the fact of the paragraph, the respondent misled both American Express and Michael Leone by “falsely claiming that the unit had in fact been delivered to Leone”. Ultimately in the dispute American Express supported Leone in this disputed transaction and reversed the charge.

While Michael Leone received the return of his $25,000, it is obvious that American Express and PayPal suffered a loss in a similar amount.

This is not an instance of the respondent returning the $25,000 in some form from himself to Michael Leone. [58] Without more, this circumstance in my respectful view amounts to conduct considered fraudulent pursuant to s. 380 of the Criminal Code . [59] This is an example of evidence, were the proceeding before me, a preliminary inquiry under the Criminal Code , I would be led to conclude that there was some evidence of fraud ( s. 380 ) upon which a reasonable jury properly instructed could return a verdict of guilty.

Again I reiterate the proposition that it is not would return a verdict of guilt, but rather could do so.

It may well ultimately be that the respondent, James Alan Rowan, has evidence to present at the trial stage which would cast this example in an entirely different light, a light more consistent with a lack of culpability than a demonstration of culpability. [60] I have chosen to use but one example, but my earlier general remarks are applicable to the transactions involving the respondent with each of the other individuals who are listed under witness statements in the record of the case for the prosecution. [ 35 ] With that, the extradition judge committed Mr.

Rowan into custody to await surrender to the United States. (He was

subsequently placed on judicial interim release pending the Minister’s decision and then, again, pending the decision of this Court.) E. Applying the Palmer Factors [36] It is against this backdrop that Mr. Rowan’s application to adduce fresh evidence must be considered. Mr. Rowan’s counselsubmits the fresh evidence satisfies the criteria in Palmer. It will be recalled that the fresh evidence application in this Court consists ofMr. Rowan’s affidavit saying that he has discovered a “waybill showing that our company did in fact send a wind turbine to Mr.

Leone”. [37] As a preliminary matter, the Crown opposes the admission of the fresh evidence on the basis that Mr. Rowan filed hisapplication outside of the 15-day time period stipulated by The Court of Appeal Rules. I am satisfied, based on the evidence ofMr. Rowan, that he has had limited access to his records such that it is not appropriate to deny him a hearing of this application on theprocedural ground put forward by the Crown. [38] With respect to the substantive issues, the Crown opposes the admission of the evidence on the footings that (

a) it falls shortof the due diligence requirement, (

b) it is not relevant, and (

c) it would not have had an effect on the outcome because it concerned onlyone aspect of the record of the case. The Crown argues that Mr. Rowan has not demonstrated due diligence as the Committal Decisionpredated his application to adduce fresh evidence by almost a year. The Crown does not contest the credibility of the waybill. Thewaybill clearly exists and the Crown does not say that it is fabricated. 1. Due diligence [39] Regarding delay, Mr. Rowan’s affidavit explains why this evidence was not presented to the extradition judge: 2.

In preparation for the extradition hearing that occurred before the Court of Queen’s Bench in March 2017, I reviewed the materialsstill available to me that relate to the efforts I undertook to develop and promote the Enviro-Energies wind turbine in Canada and theUnited States. Because of the passage of nearly a decade since the events in question, and because Mr. Leone had never raised this issuewith me previously, I did not have responsive documents immediately at hand. 3. After receiving the reasons for decision of the extradition judge, I again looked for documentation [in] relation to his situation. 4.

Many of the documents relating to Enviro-Energies were located near the former place of business in Fonthill, Ontario. 5. I was not legally permitted to travel to Ontario because I was subject to conditions of release – which included not leaving Saskatoon –after having been arrested on the extradition warrant. 6. It took me almost two months to get permission to travel to Ontario to attend my daughter’s wedding, which took place in September2017. After the wedding, [I] went to the location where some records were kept and I located some boxes of documents and broughtthem back to Saskatoon with me. 7.

After returning to Saskatoon, I began reviewing what was in them. In one of the boxes, I discovered a waybill showing that ourcompany did in fact send a wind turbine to Mr. Leone. A true copy of the waybill is attached as Exhibit “A”. [40] In the appellant factum, his lawyer then explains the delay between the discovery of the evidence and his application in thisCourt: 19. Mr. Rowan provided the Leone waybill to counsel in December 2017.

However, at that time, given the comments from theextradition judge regarding the Court’s inability to consider exculpating evidence, and the prevailing law under the Extradition Act, itwas determined not to submit the evidence to the Court of Appeal, as it could be construed as “defence evidence” that was onlyreviewable at the ultimate trial in the United States. 20.

However, the publicity regarding the Extradition Act arising from the Diab case [2014 ONCA 374], and the fact that – according tothe letter from Amnesty International and the British Columbia Civil Liberties Association – the Minister of Justice and the Minister ofForeign Affairs have indicated that the Extradition Act may be reviewed, led the appellant to a change of opinion on this issue.

The Diabcase may prompt extradition courts to fulfill their role to ensure a judicial process, as opposed to the “mere formality” that the SupremeCourt of Canada has indicated that they should avoid. [41] While I understand fully the Crown’s argument regarding delay, I note, however, that the Supreme Court has cautionedagainst this factor overtaking the analysis. The focus must remain on what would best serve the interests of justice: R v Warsing, (SCC), [1998] 3 SCR 579 at para 56; and R v J.A.A., 2011 SCC 17 at para 8, [2011] 1 SCR 628.

Having regard for thesedecisions with regards to diligence, and the jeopardy Mr. Rowan is facing, I would be inclined not to give much weight to this factor. Inany event, a conclusion on due diligence is unnecessary given the remaining Palmer factors: relevance and materiality, which can beconsidered together. 2. Relevance and materiality [42] Palmer explains the factors of relevance and materiality in these terms (at 775): (

a) relevance – “[t]he evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in thetrial”; and (

b) materiality – “[i]t must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, beexpected to have affected the result”.

[ 43 ] Regarding relevance, Mr. Rowan’s argument centres on how the extradition judge’s treatment of Mr. Leone’s evidence, as an exemplar, should be taken as the only example to which the extradition judge turned his attention. In support of negating this one example (and thus negating the whole record of the case), Mr. Rowan submits that the evidence of the waybill contradicts Mr. Leone’s

summary because a Turbine was sent to him (see paragraphs 56 and 57 of the Committal Decision , which have been reproduced above). According to Mr. Rowan, evidence of the waybill satisfies the second and fourth factors of the Palmer test. In his factum, Mr. Rowan argues “[t]he fact that the record of the case does not mention this fact (i.e., that a turbine was sent to Mr. Leone) renders it misleading and unreliable.

In the appellant’s submission, this is just one more example of a misleading and dishonest element of the record of the case”. [ 44 ] The Crown asserts that the waybill only speaks to one portion of the record of the case and is outside the scope of the extradition judge’s role, in any event. The Crown cites M.(M.) , where the Supreme Court affirmed the decision of the Quebec Court of Appeal to reject the consideration of evidence that might be characterized as paving the way to a defence.

According to this argument, the proposed fresh evidence in this Court is not admissible because defences are not to be weighed by an extradition judge. [ 45 ] The difference between evidence that contradicts and that which undermines reliability is thin, but it nevertheless exists. The waybill can be characterized as casting doubt on the reliability of the record of the case because it undermines a basic factual assertion pertaining to an aspect of the record of the case.

In this regard, the fresh evidence is directed to contesting the reliability of the record of the case; but, providing a single instance of where the record of the case is not sufficient does not rebut the presumption of reliability inherent in the Extradition Act . [ 46 ] The Committal Decision reported on nine summaries of witnesses’ statements (including six investors). The extradition judge acknowledged that “some of [Mr. Rowan’s] evidence provided a cautionary foundation in considering that evidence” (at para 55). The waybill evidence is more of the same of what was placed before the judge.

It gives greater force to the trial judge’s caution regarding the evidence, but it says nothing about the balance of the evidence. [ 47 ] When a court of appeal admits fresh evidence, it must be prepared to say that, taken together with all the other evidence, it could have been expected to have affected the result ( Palmer at 777).

Having regard for the limits on the authority of the extradition judge, the admission of fresh evidence in the extradition context means that the evidence must be so overwhelming as to compel the conclusion that the evidence in the record of the case is manifestly unreliable thus permitting the appeal court, on the basis of the fresh evidence, to quash the committal decision. In this case, evidence of the waybill speaks to one aspect of the record of the case, but not the whole of it and, thus, would have had no impact on the outcome of the committal hearing. [ 48 ] Considered in this light, Mr.

Rowan’s fresh evidence is not so overwhelming that it rises to the level of manifest unreliability in the record so as to compel this Court to set aside the Committal Decision . Thus, I conclude that the fresh evidence should not be admitted as it could not have been expected to affect the result (i.e., the committal). IV. Appeal from the Committal Decision A. Right of Appeal and Powers of the Court [ 49 ]

Section 49 of the Extradition Act provides the right to appeal a committal order to an appeal court of the province where the order was made: Appeal 49 A person may appeal against an order of committal – or the Attorney General, on behalf of the extradition partner, may appeal the discharge of the person or a stay of proceedings – to the court of appeal of the province in which the order of committal, the order discharging the person or the order staying the proceedings was made, (

a) on a ground of appeal that involves a question of law alone; (

b) on a ground of appeal that involves a question of fact or a question of mixed law and fact, with leave of the court of appeal or a judge of the court of appeal; or (

c) on a ground of appeal not set out in paragraph (

a) or (

b) that appears to the court of appeal to be a sufficient ground of appeal, with leave of the court of appeal. Appel 49 L’intéressé peut faire appel de son incarcération et le procureur général – au nom du partenaire –, du refus de délivrer une ordonnance d’incarcération ou de l’arrêt de la procédure. L’appel est entendu par la cour d’appel de la province où la décision a été rendue et se fonde :

a) soit sur une question de droit;

b) soit, avec l’autorisation de la cour d’appel ou de l’un de ses juges, sur une question de fait, ou de droit et de fait;

c) soit, avec l’autorisation de la cour d’appel, sur tout autre motif qu’elle estime suffisant. [ 50 ]

Section 53 of the Extradition Act sets out the powers of a court of appeal in considering a committal order:

Powers of the court of appeal 53 On the hearing of an appeal against an order of committal of aperson, the court of appeal may (

a) allow the appeal, in respect of any offence in respect of which theperson has been committed, if it is of the opinion (

i) that the order of committal should be set aside on the ground thatit is unreasonable or cannot be supported by the evidence, (ii) that the order of committal should be set aside on the ground of awrong decision on a question of law, or (iii) that, on any ground, there was a miscarriage of justice; or (

b) dismiss the appeal (

i) if it does not allow the appeal on any ground referred to inparagraph (a), or (ii) even though the court of appeal is of the opinion that on theground referred to in subparagraph (a)(ii) the appeal may be decidedin favour of the appellant, if it is of the opinion that no substantialwrong or miscarriage of justice has occurred and the order ofcommittal should be upheld. Pouvoirs de la cour d’appel en matière d’incarcération 53 La cour d’appel peut, pour statuer sur l’appel concernant uneordonnance d’incarcération :

a) soit accueillir l’appel relativement à toute infraction pourlaquelle l’intéressé a été incarcéré, au motif, selon le cas : (

i) que l’ordonnance est déraisonnable ou n’est pas justifiée par leséléments de preuve, (ii) qu’une décision erronée a été rendue sur une question de droit, (iii) que, pour un motif quelconque, il y a eu erreur judiciaire;

b) soit le rejeter lorsqu’elle n’accepte aucun des motifs invoqués autitre de l’alinéa a) ou si, tout en estimant que l’appel pourrait êtreaccueilli au

titre du sous-alinéa a)(ii), elle est d’avis qu’aucun tortgrave ni déni de justice n’a été causé et que l’ordonnance devraitêtre confirmée. [51] As a preliminary point, the similarity between s. 53(a)(

i) of the Extradition Act and s. 686(1)(a)(

i) of the Criminal Codeevokes the question whether the Supreme Court’s jurisprudence interpreting the latter provision should be applied to the former: Powers of the Court of Appeal Powers 686(1) On the hearing of an appeal against a conviction or againsta verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that Pouvoirs de la cour d’appel Pouvoir 686(1) Lors de l’audition d’un appel d’une déclaration de culpabilitéou d’un verdict d’inaptitude à subir son procès ou de non-responsabilité criminelle pour cause de troubles mentaux, la courd’appel:

a) peut admettre l’appel, si elle est d’avis, selon le cas:(

i) the verdict should be set aside on the ground that it isunreasonable or cannot be supported by the evidence … . (

i) que le verdict devrait être rejeté pour le motif qu’il estdéraisonnable ou ne peut pas s’appuyer sur la prevue … . (Emphases addenda) [52] Unlike with the Criminal Code provisions, there has been little analysis of what these comparable provisions might mean inthe extradition context. In St-Gelais v United States (1994), (QC CA), 90 CCC (3d) 83 (Que CA) at 88 [St-Gelais](leave to appeal to the SCC refused, [1994] 2 SCR ix), the Quebec Court of Appeal held that an unreasonable committal decision canform the basis on which an appellate court can overturn a committal decision.

The Manitoba Court of Appeal affirmatively quoted St-Gelais in United States of America v Gunn, 2007 MBCA 21 at paras 47–49, [2007] 4 WWR 707 [Gunn] (leave to appeal to the SCCrefused, ): [49] In

summary, the appropriate standard of review with respect to an order of committal is derived from the wording of sec. 53 of theAct. A “reasonableness/cannot be supported by the evidence” test is applicable with respect to questions of fact. Nonetheless, deferenceis due to the extradition judge’s findings and conclusions; an appellate court is not free to simply substitute its view of the facts for thatof the committal judge. Under sec. 53(a)(ii), a correctness standard is applied to questions of law.

But an appeal may nonetheless bedismissed even if there is a “wrong decision on a question of law” if “no substantial wrong or miscarriage of justice has occurred”pursuant to sec. 53(b)(ii). [53] Since Gunn, no other court has examined the Extradition Act and the Criminal Code, regarding unreasonableness and verdictsthat are unsupported by the evidence.

Instead, decisions addressing s. 53 merely identify the section, state the standard of review, andmake no distinction between unreasonableness and an order that is unsupported by the evidence: see United States v Costanzo, 2009BCCA 120 at paras 19–20, 243 CCC (3d) 242 [Costanzo] (leave to appeal to the SCC refused, ); United States vBatista–Cervantes, 2014 ABCA 408 at para 6, 588 AR 198 (leave to appeal to the SCC refused, ); and United Statesof America v Wilcox, 2015 BCCA 39 at paras 9–10, 321 CCC (3d) 82 (leave to appeal to the SCC refused, ). [54] The Supreme Court has construed the phrase “unreasonable or cannot be supported by the evidence” in s. 686(1)(a)(

i) of theCriminal Code as providing two distinct paths that must be analyzed to determine whether any given verdict may be set aside: R vBeaudry, 2007 SCC 5, [2007] 1 SCR 190 [Beaudry]; R v Sinclair, 2011 SCC 40 at paras 4, 16 and 19–21, [2011] 3 SCR 3 [Sinclair]; andR v R.P., 2012 SCC 22, [2012] 1 SCR 746 [R.P.].

In R.P., Deschamps J. summarized Beaudry and Sinclair: [9] … The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of factessential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding,or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v. Sinclair,2011 SCC 40 , [2011] 3 S.C.R. 3, at paras. 4, 16 and 19–21; R. v. Beaudry, 2007 SCC 5 , [2007] 1 S.C.R. 190).

[ 55 ] Because s. 686(1)(a)(

i) of the Criminal Code and s. 53 (a)(

i) of the Extradition Act are worded similarly, it would seem that both provisions should be construed as providing two pathways for review, i.e., that of a verdict unsupported by the evidence and also one being unreasonable, within the meaning of the applicable jurisprudence. The same concerns that preoccupied Fish J. in Beaudry , and which were ultimately adopted by the Supreme Court in Sinclair and R.P. , arise with respect to s. 53(a)(

i) of the Extradition Act . A review of the reasons for committal may reveal a conclusion that is supported by the evidence, but which is, nonetheless, unreasonable. [ 56 ] In this case, however, as I analyze Mr. Rowan’s arguments, he is not alleging that the Committal Decision is unreasonable in the sense outlined in paragraph 9 of R.P. (quoted above), but rather that the extradition judge’s decision is unsupported by the evidence. Thus, I will approach the review of the Committal Decision , having regard for that aspect of s. 53 (a)(

i) of the Extradition Act only. [ 57 ] It remains to be seen how this standard is to be applied to a committal decision, which itself is based on a relatively low threshold. B. Grounds of Appeal [ 58 ] Mr. Rowan puts forward two grounds of appeal (as expressed in his factum): (

a) the extradition judge erred in failing to make a determination that the three affidavits admitted into evidence undermined the reliability of the record of the case; and (

b) the extradition judge erred in finding that the record of the case provided some evidence on each element of the reference offence (i.e., fraud). 1. Consideration of the effect of the defence evidence [ 59 ] As I have indicated, Mr. Rowan successfully applied to the extradition judge to introduce three affidavits in support of his position. The affidavits were Mr. Rowan’s, Mr. Sabina’s and Mr. Horan’s. The judge ultimately held that the affidavits had “limited utility or probative value at the hearing” ( Committal Decision at para 12). [ 60 ] Mr.

Rowan does not argue that the extradition judge erred with respect to his exposition of the applicable law. Rather, he claims that the extradition judge did not examine or provide a detailed analysis of each

summary presented in the record of the case or consider the effect of his affidavits on the allegations contained in each

summary. As such, he argues that there is no assurance that the double criminality requirement imposed by the Extradition Act has been met. I take this ground of appeal as challenging the extradition judge’s decision on the basis that the evidence was insufficient or unreliable or, in the words of s. 53 (a)(i), unsupported by the evidence. [ 61 ] As to evidence of an offence, Cromwell J. described the double criminality principle: [16] That said, the rights and interests of persons sought for extradition must be protected.

This requires a careful balancing of the broader purposes of extradition with those individual rights and interests. Extradition is a three-phase process and, at each stage, concern to balance these interests is apparent. Also underlying all three phases is the broad principle of double criminality, that is, the principle that Canada should not extradite a person to face punishment in another country for conduct that would not be criminal in Canada . [17] This broad principle of double criminality is expressed in s. 3(1) (

b) of the Extradition Act : “A person may be extradited from Canada” if “the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada”. [ 62 ] Justice Cromwell, however, went on to make it clear that in the second phase of the extradition process, i.e., at the judicial committal or discharge phase, s. 29(1) (

a) of the Extradition Act “codifies and defines the role of the extradition judge with respect to the double criminality principle” (at para 23). In the appellate context, I take this to mean that, if the court is satisfied the extradition judge’s assessment of the evidence is reasonable and supported by the evidence, the committal order must stand. [ 63 ] In order to assess the sufficiency of the evidence, I will review the record of the case in light of the affidavit evidence filed with the extradition judge. The focus will be on whether the affidavits relied upon by Mr.

Rowan at the hearing so undermined the record of the case as to render the evidence “so unreliable or defective that it should be disregarded” ( Ferras at para 54 , M.(M.) at paras 63, 71 and 78). [ 64 ] It is true that the extradition judge did not provide a detailed analysis of every

summary. Instead, he stated, “I have chosen to use but one example, but my earlier general remarks are applicable to the transactions involving the respondent with each of the other individuals who are listed under witness statements in the record of the case for the prosecution” ( Committal Decision at para 60). Mr. Rowan’s appeal on this ground can thereby be recast as whether the extradition judge erred by not explicitly analyzing each

summary in the record of the case and including such analysis in his judgment. [ 65 ] The first

summary in the record of the case is Mr. Holloman, who alleges he was tricked into investing approximately US$420,000.00 into Enviro-Energies. He never received stock certificates for this investment. Mr. Holloman alleges that he invested due to the false and misleading claims made by Mr. Rowan. However, the affidavits of Mr. Rowan suggest that he and Mr. Holloman had a more involved relationship. Mr. Holloman was heavily involved at the beginning of the Turbine project and at the manufacturing stage. With respect to the investment, Mr. Rowan asserts that it was actually a loan and that it was a smaller amount.

During the oral questions at the committal hearing, Mr. Rowan’s counsel could not give a satisfactory answer as to how Mr. Holloman’s initial involvement with Enviro-Energies is relevant to his allegation that he invested money and received nothing in return. Mr. Rowan’s inability to answer this question is fatal to his argument.

[ 66 ] On appeal, Mr. Rowan’s factum provides only minimal information on Mr. Holloman’s

summary and as to why it should be excluded as unreliable: 37. The affidavit of James Alan Rowan provides business records and agreements that demonstrate the utter and complete unreliability of the story told by Richard Holloman as related in the record of the case. The falsehoods, omissions, and errors in the record of the case in this regard are numerous. In

summary, Mr. Holloman: (

a) Fails to disclose that Mr. Rowan and Mr. Holloman carefully negotiated an investment agreement, with the involvement of Mr. Holloman’s attorney (which is attached to the Rowan affidavit but [is] conspicuously absent from the record of the case) that makes it clear that Mr. Holloman’s investment was a loan, not a stock purchase. … (

d) Fails to disclose that while the purchase agreement gave Mr. Holloman an option to convert his loan into stock within 60 days of October 23, 2008, he never exercised this option as confirmed by him in email correspondence in 2009. [ 67 ] This affidavit evidence indicates that Mr. Holloman’s

summary is lacking critical details. However, it does not rebut the primary allegation that Mr. Holloman invested to obtain stock but did not receive any stock certificates. By asserting that Mr. Holloman’s involvement led to various loans, rather than investments, Mr. Rowan effectively asks the Court to favour his affidavit evidence over the record of the case. There is no authority for either the extradition judge to have done this or for this Court to do it on appeal. Moreover, while the affidavit evidence does cast a doubt about the thoroughness of Mr. Holloman’s

summary, it does not undermine its reliability in a way that would show it to be manifestly unreliable. Instead, the affidavit evidence speaks to defences that would be best dealt with at trial, where that evidence can be properly examined. This portion of the Committal Decision presents itself as sufficiently reliable. [ 68 ] Mr. Catalano is another individual described in the record of the case. Mr. Catalano also asserts that he invested in Enviro- Energies but never received stock certificates. To rebut the probative merit of this

summary, in his factum, Mr. Rowan asserts that Enviro-Energies had been taken over by Community Alliance Inc. [Alliance Inc.] by the time Mr. Catalano invested and it would have been that company that would be “responsible for issuing share certificates …” (appellant factum at para 41), not Mr. Rowan. However, the allegation in the record of the case is that Mr. Rowan, whether authorized or unauthorized, offered and sold stock certificates to Mr. Catalano and Mr. Catalano never received stock certificates. It is true that Alliance Inc. acquired Enviro-Energies and Mr.

Rowan correctly notes that any matters related to shares would have been dealt with thereafter by Alliance Inc. However, in this case, both the record of the case and the affidavit evidence paint an incomplete picture. The missing piece is what Alliance Inc. did with the shares or who got the money. For the purposes of committal, however, this

summary remains sufficiently reliable because a difference in a narrative is not a basis upon which a record of the case’s presumed reliability can be rebutted. [ 69 ] In relation to Ms. Leone, Mr. Rowan submits his correspondence with her reveals no fraudulent intention. Simply put, he claims Enviro-Energies failed before he was able to deliver a Turbine to her, which may give rise to a civil claim in damages, but does not amount to the criminal acts alleged. This assertion is related to the broader argument advanced by Mr. Rowan with respect to the mens rea of fraud.

The Crown contests this argument, saying that Mr. Rowan knew all along that the Turbine did not function in the way advertised. On balance, there is merit to both positions. If the Crown’s position is accepted, then the mens rea is established because Mr. Rowan falsely sold distributorship rights for a product that did not exist. If Mr. Rowan’s position is accepted, then he solicited investment for a business venture that ultimately failed – in which case, Ms. Leone’s allegations would be restricted to a civil action and not the criminal offence of fraud. Nonetheless, Mr.

Rowan’s argument does not overcome the standard of review that must be applied to the extradition judge’s committal decision. Mr. Rowan merely advances another conclusion that is equally plausible, but not conclusive, of the matter. Thus, it was reasonable for the extradition judge to accept that Ms. Leone’s

summary was sufficiently reliable. [ 70 ] The summaries of Mr. Vanloan Jr. and Mr. O’Brien are similar and may be addressed jointly. Mr. Rowan’s arguments as to why these summaries should be considered unreliable are similar to those arguments he advanced with respect to Ms. Leone’s

summary. Mr. Rowan asserts that these are civil disputes and that these individuals should resort to civil remedies. However, this assertion is not conclusive of the matter. For instance, both individuals claim they were sold distribution rights. The unresolved issue is whether Mr. Rowan knew at the time of receiving monies for distribution rights that the Turbine was not a viable product. Neither the record of the case nor the affidavit evidence on this point can conclusively resolve this issue.

However, the record of the case does contain evidence that the requisite mental element of fraud is present because Mr. Rowan was aware that independent testing by Mr. Crant demonstrated the Turbine did not perform as advertised. Resolving this conflicting evidence is best addressed at trial. For this reason, these summaries were reasonably viewed by the extradition judge as meeting the test for reliability to support the order for committal. [ 71 ] Mr. Rowan also challenges the

summary of an unnamed employee at the United States SEC, which states that no entries or registration of any securities for Enviro-Energies were made between 2008 and 2010. Various summaries allege Mr. Rowan solicited investments from individuals in exchange for share certificates that did not exist. Thus, this

summary reinforces the summaries of the other individuals. Mr. Rowan argues that this

summary is misleading because it does not speak to the various exemptions that can apply to corporations that are issuing shares. [ 72 ] Mr. Rowan argues that this

summary’s unreliability is evident because it does not canvass all of the relevant exemptions that could apply. For example, under a private placement of shares, the issuing corporation is exempted from various requirements, principally the filing of a prospectus (see Halsbury’s Laws of Canada, Securities at HBC-241, “Prospectus Exempt Distributions”). [ 73 ] I understand these arguments regarding exemptions to securities issuance, but they do not render the allegations made in the record of the case manifestly unreliable.

I say this because the investors under a private placement would still receive shares or some affirmation recognizing their investment. The allegations against Mr. Rowan, with respect to the shares of Enviro-Energies, are that these individuals did not receive anything for their investment. Mr. Rowan’s arguments about exemptions from the law governing the issuance of shares do not affect these allegations in any way.

Further, if there is something to this argument, it is a defence to the charge, which means this argument must be dismissed because it asserts a higher standard than what the Extradition Act or the case law requires.

[74] Ultimately, the extradition judge held that the record of the case is sufficient, in that the presumption of reliability was notrebutted by Mr. Rowan. While Mr. Rowan challenges this conclusion, and asserts that the committal order is not supported by theevidence, there is sufficient evidence in the record of the case to support the extradition judge’s conclusion. Mr.

Rowan’s argumentregarding sufficiency of the evidence misconstrues the power of an appellate court reviewing a committal order. [75] It is important to recall that if the record of the case contains some evidence for each element of the Canadian offence, and thepresumed reliability of the record of the case cannot be rebutted, the extradition judge must order committal, even if the case is believedto be weak. As described above, much of Mr. Rowan’s arguments to this Court review the various summaries in the record of the casealongside Mr.

Rowan’s affidavits in an attempt to show the record of the case’s unreliability. However, these submissions do notdischarge the burden Mr. Rowan faces. The material and arguments submitted by Mr. Rowan do not undermine how the extraditionjudge applied the standard of committal, but rather, they describe an alternative narrative of the evidence (to borrow the Crown’sphrasing). [76] The extradition judge was limited in how he could address Mr.

Rowan’s arguments made at the extradition hearing as well.Similarly, the Court here, if satisfied the correct test for committal was applied, is limited in its review of the extradition judge’sanalysis. The question is whether the extradition judge’s conclusion – made after discounting the utility of Mr. Rowan’s affidavits, andconcluding the reliability of the record of the case had not been rebutted – is supported by the evidence?

But, even in answering thisquestion, an appeal court must be mindful that the question before the extradition judge is one of sufficiency, against a high threshold ofpresumptive reliability. An appeal court is also reweighing the evidence, but only to the limited extent contemplated by the test in R vYebes, (SCC), [1987] 2 SCR 168. Since Mr. Rowan’s arguments are limited to the sufficiency of the evidence, in orderto intervene I would have to find that the Committal Decision is unsupported by the evidence. [77] Having regard for this standard, Mr.

Rowan’s arguments, which detail how each of the summaries in the record of the case isnot reliable, can be discarded. This conclusion is best illustrated by borrowing Mr. Rowan’s factum language: “this evidencedemonstrates the unreliability of the record of the case, and should have led the extradition judge to … a true judicial inquiry into thejustness of ordering extradition” (at para 52), which is to say, the extradition judge erred because the record of the case is unreliable andthe judge failed to make this determination.

This can be distilled to a basic proposition: the extradition judge’s conclusion is wrong. [78] This, in itself, is not a basis on which an appellate court can intervene. Even if this Court were persuaded by Mr. Rowan’ssubmissions, it could not substitute its own view in the place of extradition judge’s. So long as the record of the case holds sufficientevidence to justify committal, and the extradition judge’s finding on this issue is reasonable, the decision cannot be overturned. [79] The extradition judge’s decision is supported by the evidence. He does not provide a detailed analysis of every

summary, buthe appears to have considered all of the record of the case and this is supported by his statements in paragraph 60: “my earlier generalremarks are applicable to … each of the other individuals …”. The Extradition Act does not require an extradition judge to write out allof his or her reasoning in the detail Mr. Rowan requests; and no authority is cited requiring such. Therefore, this ground of appeal cannotsucceed. [80] The extradition judge’s approach is entirely consistent with the controlling Supreme Court jurisprudence.

As Cromwell J.stated, and I repeat, “The extradition judge’s role is … not to become embroiled in questions about possible defences or the likelihood ofconviction” (at para 41) and, further, the extradition judge is not “to assess the quality, credibility or reliability of the evidence, with theexception of the limited weighing to assess whether the inferences which the Crown seeks to be drawn from circumstantial evidence arereasonable” (at para 42). [81] The judge noted that the case law limits how much the evidence can be scrutinized by an extradition judge.

Which is to say,the extradition hearing is not a trial and any assessment of the evidence is restricted: “I am to determine the sufficiency of the evidenceon the appropriate standard …. I must be satisfied that there is sufficient reliable evidence that had the conduct described in the evidenceoccurred in Canada it would be sufficient to justify a committal for trial” (Committal Decision at para 36).

Further, the judge stated, “Ihave no power to deny extradition simply because the case might appear to me to be weak or unlikely to succeed at trial” (at para 48). [82] The extradition judge acknowledged that the credibility of the record of the case needed to be approached with caution.However, he quite correctly stated that the whole of the record provided a foundation to proceed with the committal. There remainsenough in the record of the case for the extradition judge to have concluded that committal was justified.

To repeat the test from M.(M.),“It is only where the evidence supporting committal is ‘so defective or appears so unreliable’ or ‘manifestly unreliable’ that it would be‘dangerous or unsafe’ to act on it that the extradition judge is justified in refusing committal on this basis …” (at para 63). 2. Elements of fraud [83] Mr. Rowan asserts the extradition judge erred in law by relying upon evidence that was incapable of serving as evidence ofthe actus reus and the mens rea of fraud. [84] On the question of the actus reus, the extradition judge referred to the evidence of Mr.

Leone as satisfying this particularelement. The judge accepted that Mr. Leone had paid for a Turbine using a credit card but, when he did not receive the goods heexpected, he had the charges reversed. The judge determined that while Mr. Leone received his money back, the credit card companysuffered a loss in the same amount, which was evidence that could establish Mr. Rowan had committed fraud. In reference toMr.

Leone’s evidence, and how it related to the evidence provided to him as a whole, the trial judge explained “[t]his is an example ofevidence, were the proceeding before me, a preliminary inquiry under the Criminal Code, I would be led to conclude that there wassome evidence of fraud … upon which a reasonable jury properly instructed could return a verdict of guilty” (at para 59). Mr. Rowanasserts the extradition judge invented facts by claiming the reversal of the credit card charge back to Mr. Leone caused AmericanExpress and PayPal to suffer a loss. Mr.

Rowan’s factum states the following: “This factual finding, which is critical to the decision toorder committal, is unsupported by any evidence. While some deference to the extradition judge’s findings of fact are warranted, thecreation of facts cannot survive review on appeal” (at para 65).

[85] With respect to the mens rea, Mr. Crant tested the Turbine in April of 2009, where it failed to perform as advertised.Sometime between April of 2009 and October of 2009, Mr. Crant informed Mr. Rowan of his results because in October of 2009,“Rowan came to [Mr. Crant’s] offices in Michigan to discuss the results of [his] tests of Rowan’s wind turbine design. Crant said themeeting was heated and Rowan became upset that [Mr. Crant] would not validate Rowan’s power generation claims” (CommittalDecision at para 39). Consequently, according to Mr.

Rowan, he could not know about the falsity of some of his representations prior toOctober of 2009. The investor summaries speak to events that predate 2009. Mr. Rowan asserts that this means the extradition judge hadno evidence before him with respect to the mens rea of fraud. [86] The Crown argues otherwise, saying that the second ground of appeal is simply a more particularized version of the firstground of appeal. Both grounds ask this Court to consider defences.

Since the extradition judge could not engage in such an exercise, theCrown submits this Court has no power to say the extradition judge erred by not giving effect to evidence that can only be used tosupport a defence. [87] To begin the analysis, I note that s. 380 of the Criminal Code reads as follows: Fraud 380(1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of thisAct, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service, (

a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of theoffence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars … . [88] As the extradition judge noted, the Supreme Court has authoritatively set out the elements of fraud, established by s. 380, in Rv Théroux, (SCC), [1993] 2 SCR 5 at 20: These doctrinal observations suggest that the actus reus of the offence of fraud will be established by proof of: 1. the prohibited act, be it

an act of deceit, a falsehood or some other fraudulent means; and 2. deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim’s pecuniary interests at risk. Correspondingly, the mens rea of fraud is established by proof of: 1. subjective knowledge of the prohibited act; and 2. subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist inknowledge that the victim’s pecuniary interests are put at risk). Where the conduct and knowledge required by these

definitions are established, the accused is guilty whether he actually intended theprohibited consequence or was reckless as to whether it would occur. [89] The extradition judge was persuaded that the Mr. Leone

summary showed evidence of the actus reus, i.e. a deprivation or therisk of deprivation. The loss of Mr. Leone’s investment or the potential for such a loss would satisfy this requirement. Mr. Rowan has notprovided any arguments with respect to how the judge’s inference, that the credit card charge reversal is not equivalent to Mr. Rowanreturning the money, is contrary to law. [90] In any event, even if I were to excise Mr. Leone’s

summary, the remainder of the record of the case provides some evidenceof the actus reus. For instance, the summaries of Mr. Holloman, Mr. Catalano and Mr. Vanloan Jr. all indicate they paid for stockcertificates in Mr. Rowan’s company, but never received them. [91] Regarding Mr. Holloman, Mr. Rowan alleges the money was actually stolen from him. This response is not sufficient becauseit merely compares Mr. Rowan’s own affidavit evidence against the record of the case. Such a comparison is neither authorized for thepurposes of a defence nor does it conclusively undermine the reliability of Mr.

Holloman’s allegations. Regarding Mr. Catalano,Mr. Rowan asserts the purchase of stocks was dealt with by Alliance Inc., the successor to Enviro-Energies. However, this does notproperly address the allegation in the record of the case that Mr. Rowan, in his personal capacity, solicited investment from Mr. Catalanofor share certificates. If Mr. Rowan were not in a position to offer those shares, then the actus reus and the mens rea could still beestablished. These individuals are not alleging that they did not receive a specific official document. They allege that they invested inEnviro-Energies, through Mr.

Rowan, and received nothing for their investment. I interpret the allegations of Mr. Holloman, Mr. Catalanand Mr. Vanloan Jr. to refer to this substantive aspect of investment, not the formalistic version Mr. Rowan asserts. [92] Nevertheless, the larger issue with Mr. Rowan’s response to these allegations, as the Crown contends, is that it merely paintsan alternative narrative. As discussed earlier in these reasons, assertions that Mr. Rowan has better evidence that permits a differentconclusion are not the focus in an appeal from a committal order.

The inquiry is whether the extradition judge’s conclusion is areasonable one. [93] Based on the foregoing, the extradition judge reasonably concluded from the record of the case that the actus reus and mensrea of fraud could be made out. While the specific

summary the judge analyzed may not have demonstrated both elements, the record ofthe case, taken as a whole, provides some evidence for each element of fraud. Mr. Rowan’s appeal with respect to this ground of appealis dismissed. V. Application for Judicial Review of the Surrender

Order A. The Minister’s Decision [94] Following receipt of the Committal Decision, Mr. Rowan applied to the Minister under s. 43(1) of the Extradition Act to makesubmissions regarding his surrender. The Minister issued reasons for surrender on August 24, 2017 [Surrender Reasons], whichaccompanied the Surrender Order. Those reasons addressed the two principal submissions made by Mr. Rowan’s counsel: the effect of adelay of proceedings and the sufficiency and reliability of the record of the case. The Minister considered both submissions but was notpersuaded by them. B.

The Law [95] The Extradition Act contains various instances where the Minister must refuse surrender: s. 44, s. 46 and s. 47. Of these, onlys. 44(1)(

a) could apply to this application. It requires the Minister to fully consider all the relevant factors to ensure surrender would notbe unjust or oppressive: When order not to be made 44(1) The Minister shall refuse to make a surrender order if the Minister is satisfied that (

a) the surrender would be unjust or oppressive having regard to all the relevant circumstances … . [96] As Cromwell J. indicated in M.(M.), the jurisprudence also holds that “the Minister must also refuse surrender where theconsequences of surrender would be contrary to the principles of fundamental justice under s. 7 of the Charter or, in the case of aCanadian citizen, be an unjustified infringement of the right to remain in Canada guaranteed by s. 6(1) of the Charter” (at para 26). [97] It should be noted that defences not considered at the committal hearing can nevertheless be considered at the surrender stage:“the availability of possible defences that fall outside of the scope of the double criminality inquiry required at the first two phases of theextradition process can nonetheless be relevant at the third” (M.(M.) at para 116).

However, the Minister’s analysis must be conducted inlight of the unjust or oppressive requirement, which is “clearly a high test” (at para 119). [98] The application of s. 44(1)(

a) was earlier discussed in Canada (Minister of Justice) v Fischbacher, 2009 SCC 46, [2009] 3SCR 170 [Fischbacher]. In Fischbacher the Court held the relevant factors must be considered both individually and cumulatively: [37] … Given the mandatory nature of s. 44(1)(

a) the “Minister must consider all relevant circumstances, singly and in combination, todetermine whether surrender would be unjust or oppressive”: United States of America v. Johnson (2002), (ON CA),62 O.R. (3d) 327 (Ont. C.A.), at para. 45.

Whether the Minister is “satisfied” that surrender would be unjust or oppressive in a given setof circumstances, however, is entirely a matter of [the Minister’s] discretion. [99] Regarding what is a relevant factor, the Supreme Court offered the following guidance: [38] … The circumstances that will be “relevant” to a surrender decision will vary depending on the facts and context of each case.

Someof these factors may include: any representations made by the person sought on the question of surrender in accordance with s. 43(1) ofthe Act, the conduct of the proceedings in the requesting country before and after the request for extradition, the potential punishmentfacing the individual if surrendered, humanitarian issues relating to the personal circumstances of the individual, the timeliness andmanner of prosecuting the extradition proceedings in Canada, the need to respect the constitutional rights of the person sought andCanada’s international obligations under the [Extradition Treaty between Canada and the United States of America, Can TS 1976 No 3]and as a responsible member of the international community: see Bonamie, Re, 2001 ABCA 267, 293 A.R. 201, at para. 54, and UnitedStates of America v.

Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, at para. 34. [39] In carrying out the analysis under s. 44(1)(

a) of the Act, the “relevant circumstances” may also include an alleged breach of therights of the person sought under the Charter. … In turn, as recognized by this Court in Lake, [2008 SCC 23] at para. 24, wheresurrender is found to be contrary to the principles of fundamental justice protected by s. 7 of the Charter, it will also be unjust andoppressive under s. 44(1)(a), and the Minister must refuse surrender. … However, it is worth emphasizing that s. 44(1)(

a) entitles theMinister to refuse surrender even where no Charter breach is alleged or where an alleged breach is not established. Where a surrender isconstitutional, the Minister retains “a residual discretion to refuse surrender as being unjust or oppressive in view of the totality of therelevant circumstances, including, but not limited to, the circumstances alleged to make surrender inconsistent with the principles of theCharter”: Bonamie, at para. 47. [100] An application for judicial review of a Minister’s surrender order is made pursuant to s. 57 of the Extradition Act, which alsosets out the powers of the Court of Appeal:

Review of order 57(1) Despite the Federal Courts Act , the court of appeal of the province in which the committal of the person was ordered has exclusive original jurisdiction to hear and determine applications for judicial review under this Act, made in respect of the decision of the Minister under

section 40 . … Powers of court of appeal

(6) On an application for judicial review, the court of appeal may (

a) order the Minister to do any act or thing that the Minister has unlawfully failed or refused to do or has unreasonably delayed in doing; or (

b) declare invalid or unlawful, quash, set aside, set aside and refer back for determination in accordance with any directions that it considers appropriate, prohibit or restrain the decision of the Minister referred to in subsection (1). Grounds of review

(7) The court of appeal may grant relief under this

section on any of the grounds on which the Federal Court may grant relief under subsection 18.1(4) of the Federal Courts Act . Defect in form or technical irregularity

(8) If the sole ground for relief established in an application for judicial review is a defect in form or a technical irregularity, the court of appeal may (

a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; or (

b) in the case of a defect in form or a technical irregularity in the decision, make an order validating the order, to have effect from the time and on the terms that it considers appropriate. Révision judiciaire 57(1)

Malgré la

Loi sur les Cours fédérales , la cour d’appel de la province où l’incarcération a été ordonnée a compétence exclusive pour connaître, conformément au présent article, de la demande de révision judiciaire de l’arrêté d’extradition pris au

titre de l’

article 40 . … Pouvoirs de la cour d’appel

(6) Saisie de la demande, la cour d’appel peut :

a) ordonner au ministre d’accomplir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable;

b) déclarer nul ou illégal, annuler, infirmer, ou infirmer et renvoyer pour décision suivant ses instructions, l’arrêté d’extradition, en restreindre la portée ou en interdire la prise. Motifs

(7) Elle peut prendre les mesures prévues au présent

article pour les mêmes motifs que la Cour fédérale peut le faire en application du paragraphe 18.1(4) de la

Loi sur les Cours fédérales . Vice de forme

(8) Elle peut rejeter toute demande fondée uniquement sur un vice de forme si elle estime qu’en l’occurrence le vice n’entraîne aucun tort grave ni déni de justice et, le cas échéant, valider la décision entachée de vice et lui donner effet selon les modalités qu’elle estime indiquées. [ 101 ] Subsection 18.1(4) of the Federal Courts Act , RSC 1985, c F-7, referred to in s. 57(7) above, provides as follows: Grounds of review Motifs 18.1(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal 18.1(4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas : (

a) acted without jurisdiction, acted beyond its jurisdiction or refuse

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