Complete text of B.C. Court decision re. John Graham extradition
http://www.courts.gov.bc.ca/jdb-txt/ca/07/03/2007bcca0345.htm
United States of America v. Graham,
2007 BCCA 345
The Attorney General of Canada on behalf of
The United States of America
And
John Graham
also known as John Boy Patton
Before:
The Honourable Mr. Justice Donald
The Honourable Mr. Justice Hall
The Honourable Madam Justice Levine
T. E. La Liberté, Q.C., G. P. DelBigio and L. M. Sturgess
17 May 2007
26 June 2007
Written Reasons by:
The Honourable Mr. Justice Donald
Concurring Reasons by:
The Honourable Mr. Justice Hall (P. 18, para. 40)
Concurring Reasons by:
The Honourable Madam Justice Levine (P. 19, para. 43)
Reasons for Judgment of the Honourable Mr. Justice Donald:
[1] John Graham was committed for extradition to the United States of America, to be tried for the murder of Anna Mae Aquash in South Dakota. After the committal order was made, 2005 BCSC 559, the Supreme Court of Canada concurrently released decisions in United States of America v. Ferras; United States of America v. Latty, [2006] 2 S.C.R. 77, 2006 SCC 33, and United Mexican States v. Ortega; United States of America v. Fiessel, [2006] 2 S.C.R. 120, 2006 SCC 34.
[2] Graham requests a new committal hearing on the ground that, deprived of the benefit of Ferras, the extradition judge did not assess the sufficiency of the prosecution case in the manner and to the extent mandated by Ferras, and therefore he is entitled to a reassessment according to the new approach.
[3] Having scrutinized the evidence according to my understanding of what Ferras decided, I am satisfied that it is sufficient for committal and accordingly I would dismiss the appeal.
[4] As the extradition judge noted, there were deficiencies in the "Record of the Case", but on the crucial issue of whether the person known as John Graham, also known as John Boy Patton, was the same person who committed the murder, the judge found that the evidence of John Trudell established identification. With respect, I think that finding was correct and it is not affected by the application of Ferras.
[5] The other elements of the offence are uncontroversial. Anna Mae Aquash was executed by a single gunshot to the back of her head on orders from the American Indian Movement because they believed her to be an informant for the F.B.I. This occurred in late 1975 on the Pine Ridge Indian Reservation in South Dakota. As a planned and deliberate killing, it constitutes murder in Canadian law.
[6] Two persons were indicted for first degree murder, the appellant and Fritz Arlo Looking Cloud. Looking Cloud was tried separately before a Federal Court judge and jury in South Dakota and convicted in 2004. His appeal was dismissed on 19 August 2005 by the United States Court of Appeals for the Eighth Circuit: 419 F.3d 781, 2005 U.S. App. LEXUS 17578. The evidence summarized in the appeal decision at 784-785 mirrors the narrative which emerges from the Record of the Case and provides a useful overview:
Aquash's badly decomposed body was discovered in 1976, and police began to suspect foul play after identifying her as having been involved with the American Indian Movement. Due to lack of cooperation, the investigation made little headway until agents began talking to Looking Cloud in the mid-90s. Looking Cloud and almost every other witness in the case were members of, and were actively involved in, the American Indian Movement at the time of Aquash's death. The government's theory at trial was that Looking Cloud and other American Indian Movement members killed Aquash, who was also a member, because they suspected she was a federal informant, working with the government.
When the rumor began to spread around the American Indian Movement that Aquash was an informant, she fled Pierre to Denver. A few weeks later, Looking Cloud, Theda Clark and John Graham (also called John Boy Patton) received orders from the American Indian Movement to bring Aquash back to South Dakota. They tied her up and drove her to Rapid City to question her about being an informant. Aquash was constantly guarded and her requests to be let free were refused. At some point, Aquash realized that she was about to be killed. Looking Cloud, Clark, and Graham met with other American Indian Movement members in Rapid City and eventually the three drove Aquash to an area near Wanblee. Aquash begged to go free, prayed, and cried. Looking Cloud and Graham marched Aquash up a hill and Graham shot her at the top of a cliff. Her body was either thrown or it tumbled to the bottom of that cliff.
Trudell testified that Looking Cloud told him that when Graham and Clark returned to the car for the last time, Aquash cried and begged them not to kill her. They drove to an area near Wanblee and parked the car. Yellow Wood testified that Looking Cloud told him that Aquash continued to cry, pray, and beg for her life as they forced her out of the car and marched her up the hill to a cliff. Two Elk testified that Looking Cloud told him he handed a gun to Graham and nodded at him. Aquash knelt to the ground, possibly to pray, and Graham held the gun to the back of her head and pulled the trigger. Afterwards, the three buried the gun under a bridge nearby.
[8] The appellant's position on appeal is encapsulated in the concluding paragraph of its factum, which reads:
103. The fact that almost 30 years had passed since the investigation of Ms. Aquash’s murder began gives rise to particular concerns of availability and reliability that an extradition judge must assess and consider. The ROC [Record of the Case] is silent with respect to whether the summarized evidence is based upon a recent interview, grand jury testimony and, if so, date and subject of the grand jury, or from a statement given 30 years ago. The extradition judge repeatedly expressed concern about this feature of the ROC (T. vol. IV, p.680, ll.24-37; p. 681, ll. 20-33; p. 686, ll. 3-13, 36-39; Reasons for Judgment (on committal), paras. 22, 35-36 @ AB, pp. 220, 224), yet committed the Appellant for extradition in any event because she accepted the current jurisprudence bound her to do so. In the circumstances, the ROC was so bereft of detail as to the circumstances in which the evidence was collected from the anticipated witnesses that the extradition judge was deprived of the information necessary to properly exercise her discretion to evaluate the sufficiency of the Requesting State’s evidence, as required by Ferras. In the circumstances, there were live issues with respect to identification, reliability, availability, and the justice or rightness of a committal. The extradition judge did not have the benefit of the changes in the law and, as a result, no meaningful judicial assessment was conducted in respect of these issues. In the result, there must be a new extradition hearing.
[9] The Record of the Case attracted valid criticism. There are discrepancies between the height, weight and racial "identifiers" in two parts of the evidence. The requesting state allowed (unwittingly, as the judge found) one witness's evidence to go forward as available testimony after he passed away. His evidence was withdrawn when that came to light. The appellant argues that assertions in the Record of the Case of Looking Cloud and another witness, Frank Dillon, to whom it is alleged the appellant admitted his role in the killing, were demonstrated to be unreliable. Looking Cloud's lawyer deposed in an affidavit that Looking Cloud has no intention of testifying in a trial against the appellant. In testimony before a Grand Jury, Frank Dillon resiled from a police statement that the appellant told him he "off'ed" the deceased. As the judge observed in her reasons at paragraph 22, the source of some of the evidence was not identified and she noted that no witness identifies the appellant as the same person in a series of photos, some taken in the 1970's and others more recently.
[10] Nevertheless, it was necessary for the judge to determine whether there was a sufficient case aside from these deficiencies.
[11] Her analysis of what she considered to be the dispositive evidence in the case was as follows:
[71] John Trudell’s evidence is the most significant evidence found in the Record of the Case. Without his evidence there would not be sufficient evidence to commit Mr. Graham for extradition.
[72] I set out Mr. Trudell’s evidence from the Record of the Case in its entirety:
John Trudell was an AIM [American Indian Movement] member at the time of this incident. He is expected to testify that Arlo Looking Cloud told him that he, GRAHAM, and Theda Clarke took Aquash from Troy Lynn Irving’s house in Denver. Looking Cloud stated to Trudell that Aquash was then taken to a house by the old Indian hospital in Rosebud. He further stated that Theda and John Boy then went to the house for a short time. Looking Cloud stated that afterwards they drove to the location where Aquash was shot. He stated to Trudell that he and John Boy marched Aquash up to a ravine and that she was crying and praying for her kids and begging them not to do this. Looking Cloud told Trudell that they made Aquash kneel down in front of them and that John Boy shot her in the back of the head. He is able to identify Graham in Exhibits 3 and 4, [Photograph 3 and 4], Exhibit 3 being a photograph taken in 1983 and Exhibit 4 being a photograph taken on or about the time of Graham’s arrest in Canada in the instant case in December, 2003.
[73] Given that hearsay evidence is admissible, Mr. Trudell’s evidence alone is sufficient to establish identification.
[74] When Mr. Trudell’s evidence is considered along with that of Angela Janis, Troy Lynn Irving and George Palfy, there is clearly sufficient evidence identifying John Boy Patton as John Graham, who is before me, and identifying him as the person who shot Anna Mae Aquash.
[75] Ms. Janis was at Troy Lynn Irving’s house when John Boy Patton took Ms. Aquash away and she has identified the earlier Photographs. Troy Lynn Irving was present for the conversation that Mr. Trudell reiterated from Arlo Looking Cloud.
[76] Fritz Arlo Looking Cloud’s evidence is also summarized in the record of the case, and I will repeat it below:
Fritz Arlo Looking Cloud is a co-defendant and his case will be tried separately from GRAHAM. He is expected to testify that in late November or early December of 1975 Aquash, was taken from Troy Lynn Irving’s residence in Denver, Colorado, in a Ford Pinto station wagon by John GRAHAM a.k.a. John Boy PATTON, Theda Clarke a.k.a. Theda Nelson, and himself, and that Aquash was placed in the back of the station wagon. He is further expected to testify that they drove all night from Denver, Colorado, to Rapid City, South Dakota, and that Aquash was kept at a house in Rapid City until the next evening when she was placed back in the vehicle and the same individuals then drove down to Pine Ridge. He recalled going to a house and staying outside with Aquash while Clarke and GRAHAM went inside the house. After that, when they were heading toward Kadoka, South Dakota, (just north of Wanblee, South Dakota), they stopped by the side of the road. Looking Cloud recalled that Aquash was praying and then was shot in the back of her head by GRAHAM. The gun used was a small silver .32 revolver. Looking Cloud then took the gun from GRAHAM and fired the rest of the rounds in it into the ground.
[77] Mr. Looking Cloud’s evidence is also sufficient to commit Mr. Graham for extradition when considered with Mr. Trudell’s and Ms. Janis’ evidence. However, even without Mr. Looking Cloud’s evidence, there is sufficient evidence of identification to commit Mr. Graham for extradition.
[78] Therefore, I conclude that there is sufficient evidence in the Record of the Case to commit John Graham for extradition to the United States to face the charge of murdering Anna Mae Aquash.
[12] As mentioned, the appellant filed an affidavit from Looking Cloud's lawyer saying that Looking Cloud would not testify. The judge held, correctly in my view, that that did not necessarily make his evidence unavailable:
[51] The only direct evidence of the killing is that of Fritz Arlo Looking Cloud. Mr. Looking Cloud was also charged with the murder of Anna Mae Aquash and, as noted, was convicted of that murder in 2004. As noted above, the defence in this case has tendered the affidavit of Terry Gilbert, Mr. Looking Cloud’s lawyer, which states that Mr. Looking Cloud will not testify in any proceeding against Mr. Graham.
[52] Without an examination of foreign law, which I am not encouraged to undertake in extradition proceedings, I cannot say that Mr. Looking Cloud’s evidence is not available for trial. I appreciate that the Record of the Case says he is expected to testify. However, I do not see how his refusal to testify would necessarily affect whether his testimony is available. Even if Mr. Looking Cloud refused to testify, it does not mean that his evidence is not available. Certainly, under Canadian law there is an argument that the evidence would be admissible even without his testimony. However, until he actually is called upon to testify, it cannot be said, with certainty, that he will not.
[13] Trudell's evidence is hearsay originating with Looking Cloud. Hearsay is admissible under the Extradition Act, S.C. 1999, c. 18. In Ferras, Chief Justice McLachlin, writing for the court, said:
[28] The Act provides that evidence is admissible if it is either properly certified pursuant to s. 33(3) in the case of proceedings on the record of the case or in accordance with the treaty in proceedings under the treaty method of submitting evidence. The evidence may be hearsay, and under the treaties at issue in the Ortega appeals, the evidence need not include certification that it is available for trial.
If the material presented in the record of the case is so bereft of detail, such as the witness' means of knowledge, that the judge cannot determine its sufficiency, the judge will have to discharge the person sought for prosecution.
and the passage from Arcuri at para. 29, quoted at paragraph 21 of the judge's reasons (dealing with circumstantial evidence at a preliminary inquiry):
However, where the Crown's evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty.
[15] I propose to deal with two questions:
(1) What did Ferras decide?
(2) Assuming that this Court can undertake the analysis, does the case for extradition satisfy the Ferras test?
1. What Did Ferras Decide?
[16] The appellant seeks a new committal hearing on the basis that Ferras so altered the law, in the scope of the inquiry and the range of evidence and arguments now available to the person requested, that he should be able to take advantage of the new approach as a matter of fundamental justice.
[17] The respondent, citing decisions from the Ontario Court of Appeal: United States of America v. Thomlison, 216 C.C.C. (3d) 97, 2007 ONCA 42; and United States of America v. Anderson, 219 O.A.C. 369, 2007 ONCA 84, submits that Ferras took only an incremental step beyond the landmark case of United States of America v. Shephard (1976), [1977] 2 S.C.R. 1067, 30 C.C.C. (2d) 424, and that, save in one respect – the ability of the extradition judge to disregard "manifestly unreliable" evidence – Shephard remains the controlling authority.
[18] The question "What did Ferras decide?" is important to this case and to extradition practice in this jurisdiction as it has arisen in several other cases presently before the Court. At least one judge of the Supreme Court of British Columbia has taken the limited view expressed in the Ontario cases just mentioned: United States of America v. Graziani, 2007 BCSC 178.
[19] With respect, I do not think the respondent's interpretation of Ferras fully embraces the extent of the change envisioned in that case. My chief criticism is in the concentration on the phrase "manifestly unreliable", to the exclusion of other powerful and expressive language in Ferras.
[20] In Ferras, the Supreme Court of Canada addressed the problem created by two developments since Shephard was decided: the Charter of Rights and Freedoms, particularly s. 7, and the amendments to the Extradition Act, S.C. 1999, c. 18, that brought in the "record of the case" modality which was intended to ease the burden on the requesting state and which admitted evidence not admissible under Canadian law: s. 32(1)(a) and (b).
[21] The court decided that the Shephard approach did not bring a close enough scrutiny to the case for extradition, that it led to a rubber stamp process, and that in order for the Act to conform to the fundamental justice requirements of s. 7, the law had to move on from Shephard. Those requirements meant that the extradition judge must act only on reliable and available evidence and assess the evidence as a whole to determine the sufficiency of the case for committal. It is in relation to sufficiency that the controversy arises over the meaning of Ferras.
[22] As I understand the respondent's argument and the cases on which it relies, the extradition judge can now reject manifestly unreliable or unavailable evidence (which Shephard did not allow), but if there remains reliable and available evidence on each element of the offence in question, then the judge must commit on the presumption of sufficiency arising from the certification by the requesting state. That is, in my respectful opinion, a reductionist interpretation of Ferras and does not give full scope to the reasoning in that case.
[23] As I will soon develop, the Ferras approach demands more; it demands a judicial appraisal of the case to ensure that there is a "plausible case" and that the subject is not committed on a case where "it would be dangerous or unsafe to convict, [and] the case should not go to a jury" (para. 54).
[24] I return to my criticism of the undue concentration on the phrase "manifestly unreliable". The phrase came up in Ferras during the discussion of the majority reasons of Ritchie J. in Shephard. The context, at para. 39 of Ferras, is this:
On current jurisprudence, both inquiries appear to leave little or no room for the judge to evaluate the evidence from the foreign state and decline to extradite if the judge finds it unreliable or otherwise inadequate. This was the view taken by the majority of this Court in Shephard. At issue was whether an extradition judge could refuse to order committal for extradition where there was some evidence on every element of the offence, but the judge was nevertheless of the view that the evidence was so weak that reasonable grounds for extradition had not been made out and that it would be dangerous to commit for extradition. Ritchie J., for a five to four majority, stated that whether evidence is "manifestly unreliable" is not the test for removing evidence from a jury (p. 1087). Rejecting the test of the extradition judge and the dissenting minority, the majority in Shephard held that an extradition judge has no discretion to reject evidence on the ground that it is so dubious as to be dangerous and must commit if there is any evidence on all the necessary elements of the offence. Shephard was decided before the Charter. It has never been overruled or altered, except to permit a judge to engage in limited weighing of circumstantial evidence to ensure that inferences from the evidence are reasonably supportable to establish some evidence on all the required elements of the offence (see R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54).
[26] That there is more to Ferras than just rejecting "manifestly unreliable" evidence is apparent from the following passages suggesting reliability is part, not the whole, of the new approach:
[41] ... For a person sought to receive a fair extradition hearing, the extradition judge must be able to evaluate the evidence, including its reliability, to determine whether the evidence establishes a sufficient case to commit.
[50] I conclude that s. 32(1)(a) and (b) and s. 33 of the 1999 Act do not violate the right of a person sought under s. 7 of the Charter, because the requirements for committal of s. 29(1), properly construed, grant the extradition judge discretion to refuse to extradite on insufficient evidence such as where the reliability of the evidence certified is successfully impeached or where there is no evidence, by certification or otherwise, that the evidence is available for trial.
[46] Section 29(1)'s direction to an extradition judge to determine whether there is admissible evidence that would "justify committal" requires a judge to assess whether admissible evidence shows the justice or rightness in committing a person for extradition. It is not enough for evidence to merely exist on each element of the crime. The evidence must be demonstrably able to be used by a reasonable, properly instructed jury to reach a verdict of guilty. If the evidence is incapable of demonstrating this sufficiency for committal, then it cannot "justify committal". The evidence need not convince an extradition judge that a person sought is guilty of the alleged crimes. That assessment remains for the trial court in the foreign state. However, it must establish a case that could go to trial in Canada. This may require the extradition judge to engage in limited weighing of the evidence to determine, not ultimate guilt, but sufficiency of evidence for committal to trial.
[54] Challenging the justification for committal may involve adducing evidence or making arguments on whether the evidence could be believed by a reasonable jury. Where such evidence is adduced or such arguments are raised, an extradition judge may engage in a limited weighing of evidence to determine whether there is a plausible case. The ultimate assessment of reliability is still left for the trial where guilt and innocence are at issue. However, the extradition judge looks at the whole of the evidence presented at the extradition hearing and determines whether it discloses a case on which a jury could convict. If the evidence is so defective or appears so unreliable that 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 to meet the test for committal.
. U.S.A. v. Ferras, supra, does not envision weighing competing inferences that may arise from the evidence. It does not contemplate that the extradition judge will decide whether a witness is credible or his or her evidence is reliable. Nor does it 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 in cases that appear to the extradition judge to be weak or unlikely to succeed at trial.
The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence has been unequivocally expressed in Yebes as follows:
[C]urial review is invited whenever a jury goes beyond a reasonable standard.... [T]he test is 'whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered'.
(Yebes, [ [1987] 2 S.C.R. 168] at p. 185 (quoting Corbett v. The Queen, [1975] 2 S.C.R. 275, at p. 282, per Pigeon J.).)
That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and, within the limits of appellate disadvantage, weigh the evidence.
[33] I have considered the reasons of Newbury J.A. in United States of America v. Lorenz; United States of America v. Narayan, 2007 BCCA 342, at paras. 31-41, on the proper reading of Ferras, and I am in respectful agreement with those reasons.
2. Does the Case for Extradition Satisfy the Ferras Test?
[34] It must first be decided whether in fairness or as a matter of practicality there must be a new hearing. The argument for a new hearing is that the judge was not aware of the discretion available to her and that there are now avenues of defence, such as the impeachment of evidence, and an expanded range of argument, opened up by Ferras that were not explored in the hearing below. I regard those opportunities in this case to be merely theoretical. If there was more that the appellant could have done to impeach the evidence in some effective way or if he left an argument unsaid, it was not brought to our attention.
[35] I prefer to follow the lead in Ferras where the court revised the rules and then went on to apply them.
[36] In my opinion, a properly instructed jury acting reasonably could convict on the evidence that the appellant brought the deceased from Denver to South Dakota and there carried out her execution with the assistance of Looking Cloud.
[37] On identification, I think the evidence that the appellant is the person sought was proved on the balance of probabilities by his acknowledgment to a police officer that he was the person U.S. authorities were looking for in the Aquash matter: see the judge's reasons at paragraph 41.
[38] As to the question whether the person known as John Graham is the same as John Boy Patton, Trudell's evidence is sufficient and it is supported by other witnesses connected with the American Indian Movement who knew him at the material time.
Disposition
[39] For the foregoing reasons, I would dismiss the appeal.
[40] I have had the privilege of reading in draft the reasons of my colleague, Donald J.A. I generally agree with his reasons and with his conclusion that the evidence in this case was sufficient to support the committal order made by Bennett J.
[41] I wish, however, to note that I would consider it an extremely rare situation when an extradition judge could properly enter upon a consideration of the credibility of proposed witnesses. Credibility is pre eminently a jury question to be left to be considered by the trier of fact. Unreliability of evidence could arise for instance from serious deficiencies in a body of circumstantial evidence or from the opportunity for a witness to know or observe factual matters. But the mere fact that a witness might be thought by an extradition judge to be of less than stellar credibility would not normally suffice as a ground to refuse a committal order. That sort of issue, in my opinion, is best left to be decided by a trial court.
[42] Subject to this caveat, I am in respectful agreement with the reasons of Donald J.A.
[43] I have had the privilege of reading in draft form the reasons for judgment of both of my colleagues, Donald and Hall, JJ.A. I agree with them that this appeal should be dismissed, and with the reasons of both of my colleagues.
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