BC appeal court quashes extradition of alleged drug trafficker, orders judicial review

Panel says guilty plea in a prior criminal proceeding does not constitute a waiver of constitutional rights

BC appeal court quashes extradition of alleged drug trafficker, orders judicial review
Matthew Nathanson

The British Columbia Court of Appeal has quashed the extradition to the United States of a man accused of heading a large cross-border drug trafficking organization.

In a unanimous decision, the province’s highest court said there is no rule of law preventing someone facing extradition from challenging the admissibility of Canadian-gathered evidence based on a prior guilty plea.

The American extradition request was largely based on encrypted messages between a person alleged to be the accused, Tenny Guon Lim, and cooperating witnesses in the U.S., as well as an American undercover police officer.

However, there was no direct evidence of who sent the encrypted messages from Canada.

 The only evidence identifying Lim was one intercepted phone call with an undercover U.S. officer and a voice I.D. comparison between the party to that call and a post-arrest interview of Lim in a previous, unrelated Canadian drug case in which Lim had pleaded guilty.

Justice Karen Horsman, writing for herself and Justices Mary Newbury and Barbara Fisher, said in the Aug. 1 ruling that a guilty plea in a prior Canadian criminal proceeding does not “constitute a waiver of the appellant’s Charter and common law procedural rights in the extradition process.”

The appeal court panel allowed the accused’s appeal and application for judicial review of the extradition and surrender orders. It also ordered that Lim be provided disclosure of the circumstances surrounding his earlier police statement.

“In the Canadian criminal law context, principles of finality and consistency give way to the criminal law principles of presumption of innocence and the Crown’s burden of proof,” Horsman wrote.

Decision sets a precedent

Matthew Nathanson, the lawyer for Lim, called the decision precedent-setting.

“This case represents the first time any appellate court in Canada has considered the implications of a guilty plea in an earlier, unrelated domestic case on a later extradition hearing.”

The U.S. government’s request for the extradition of Lim was based on allegations that he led a cross-border drug trafficking operation using encrypted devices to communicate with his co-conspirators.

The U.S. government, through the federal Attorney-General, relied on voice identification evidence from an RCMP officer who interviewed Lim in 2014 in an unrelated criminal investigation.

In that case, RCMP officers observed in May 2014 the appellant collecting a shipment from a Vancouver Airport warehouse from his co-accused, an Air Canada employee, and then driving away. Police stopped him, and his vehicle was searched. The shipment in Lim’s vehicle contained a large volume of heroin. Lim was then arrested and interviewed by the RCMP officer.

Lim later pleaded guilty to possession of heroin for the purpose of trafficking and was sentenced to eight years imprisonment, with a deduction for time spent in custody.

In September 2019, Lim was arrested on a warrant issued under the Extradition Act relating to a different investigation. This one accused Lim of leading an international drug trafficking operation between April 2017 and May 2019, moving large quantities of cocaine, methamphetamine, and MDMA between Canada and the USA.

Extradition judge rules appellant waived right to challenge evidence from earlier investigtion

The extradition judge hearing the request made two pre-hearing rulings. The first dismissed Lim’s applications for disclosure of Canadian and American-gathered evidence. The second ruling rejected his application for a voir dire, which challenged the admissibility of the voice identification evidence because it infringed his Charter rights. In her third and final ruling, the extradition judge ordered Lim’s committal to await surrender.

The extradition judge relied on the BCSC case United States of America v. Pavlicevic as authority for the proposition that he had waived the right to challenge evidence gleaned in the earlier investigation.

The federal Minister of Justice later ordered Lin’s surrender. Lim then appealed the committal order and applied for judicial review of the surrender order.

Lim’s counsel Nathanson had argued that Pavlicevic was wrongly decided and should not be followed. The extradition judge disagreed. On appeal, Nathanson renewed this argument, which the panel agreed with.

It sent the matter back to the BCSC, saying Section 32(2) of the Extradition Act requires that Canadian-gathered evidence satisfy the rules of evidence of Canadian law to be admitted at a committal hearing.

Justice Horsman wrote that an accused’s waiver or Charter rights in the criminal process “must be fully informed by the nature of the rights and the effect that the waiver will have on them.”

She added: “One can readily imagine the unfairness that could result if an accused was prevented from challenging the admissibility of evidence that formed part of a prosecution leading to a guilty plea when the Crown seeks to use the evidence in a later, unrelated criminal trial.”

As an analogy, she wrote that an accused might plead guilty to a mischief charge, thus waiving the right to challenge the admissibility of post-arrest statements made to the police that were only of marginal relevance to the mischief prosecution.

However, “after the guilty plea, the statements may become highly relevant in a criminal prosecution of the accused on a more serious charge, such as aggravated assault or attempted murder.”

Using the argument proposed by those who wanted the extradition order, Justice Horsman wrote, “The accused [in her analogy] would be precluded from challenging the admissibility of the statements in the later prosecution because the guilty plea to the mischief charge constituted a waiver of rights for all time and all purposes.”

Justice Horsman said she “cannot see how such an outcome can be justified by the principle of waiver, which is premised on the concept of an informed choice by an accused to waive Charter rights that are of fundamental importance to the fairness of the criminal process.”

Nathanson says the appeal court’s ruling “recognizes the implicit unfairness of holding the waiver of the right to challenge one case, by a guilty plea, amounting to a waiver of all rights, for all purposes, in perpetuity, for all other unrelated cases, including subsequent extradition proceedings.”

Nathanson added: “The Extradition Act’s requirement that Canadian-gathered evidence conform with Canadian law, including the Charter, is not displaced, or waived by the earlier guilty plea to different charges, even though there may be some incidental overlap in the evidence.”

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