IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: AG of Canada on behalf of the USA v. Graham 2005 BCSC 559

Between The Attorney General on Behalf of the United States of America Respondent

And:

John Graham,

also known as John Boy Patton

Applicant

Before: The Honourable Madam Justice Bennett
Oral Reasons for Judgment
February 21, 2005

Counsel for Respondent
D.J. Strachan
J.G. Johnston

Counsel for Applicant
T.E. La Liberte, Q.C.
G. DelBigio

Place of Hearing: Vancouver, B.C.

[1] THE COURT: The United States of America ("U.S.A.") seeks to extradite John Graham to South Dakota to face a charge of murder as a result of the death of Anna Mae Aquash in 1975.

[2] The Minister of Justice issued an authority to proceed on February 12, 2004. Below is the legislation which sets the framework for this stage of an extradition proceeding.

[3] Section 15(3) of the Extradition Act, S.C. 1999, c. 18 (the 'Act') states that:

15(3) The authority to proceed must contain

(a) the name or description of the person whose extradition is sought;

(b) the name of the extradition partner; and

(c) the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person or the conduct in respect of which the person was convicted, as long as one of the offences would be punishable in accordance with paragraph 3(1)(b).

[4] Section 29(1)(a) of the Extradition Act states that:

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 is the person sought by the extradition partner;

[5] The relevant sections pertaining to the evidentiary requirements for an extradition hearing are found in ss. 33(1)(a), (2) and (3)(a) and s. 37, as follows:

33(1) The record of the case must include

(a) in the case of a person sought for the purpose of prosecution, a document summarizing the evidence available to the extradition partner for use in the prosecution;

... (2) A record of the case may include other relevant documents, including documents respecting the identification of the person sought for extradition.

(3) A record of the case may not be admitted unless

(a) in the case of a person sought for the purpose of prosecution, a judicial or prosecuting authority of the extradition partner certifies that the evidence summarized or contained in the record of the case is available for trial and

(i)is sufficient under the law of the extradition partner to justify prosecution, or

(ii)was gathered according to the law of the extradition partner;

...

37 The following are evidence that the person before the court is the person referred to in the order of arrest, the document that records the conviction or any other document that is presented to support the request:

(a)the fact that the name of the person before the court is similar to the name that is in the documents submitted by the extradition partner; and

(b) the fact that the physical characteristics of the person before the court are similar to those evidenced in a photograph, fingerprint or other description of the person.

[6] The new Act which was proclaimed in force on June 17, 1999, made a number of changes to the extradition process. The previous Extradition Act required that evidence be presented in sworn affidavits by persons with first-hand knowledge of the events. By and large, the evidence also had to be admissible in a Canadian court. Further, the evidence had to establish a prima facie case under Canadian law.

[7] The requirements for first-hand knowledge was seen to be cumbersome by many of Canada's extradition partners, particularly those from civil systems of justice. See U.S.A. v. Yang (2001), 56 O.R. (3d) 52 (C.A.) at paras. 23-33, for a discussion of the earlier legislation.

[8] Canada adopted a system under the new Act, which maintains the standard of a prima facie case before committal, but foregoes the requirement of affidavit evidence. All that is required is a summary of evidence, which is certified by a judicial or prosecuting authority from the extradition partner, that the evidence is available for trial and is sufficient under the law of the extradition partner to justify prosecution or was gathered according to the law of the extradition partner.

[9] In this case, the following is said:

The United States requests the extradition of John Graham, a.k.a. John Boy Patton, from Canada for prosecution.

In relation to that request, I, Robert A. Mandel, assistant United States attorney, certify that the evidence summarized or contained in the attached document is available for trial and is sufficient under the laws of the United States to justify prosecution.

[10] It is signed by Robert A. Mandel and dated January 26, 2004.

[11] As a result, under the new system of extradition, hearsay evidence is permissible. This legislation has been upheld as constitutional, however the constitutional validity of these provisions is before the Supreme Court of Canada. See the reasons in U.S.A. v. Graham (11 January 2005), Vancouver 22296 (B.C.S.C.) constitutional ruling.

[12] In Yang, supra, the court reviewed the role of the extradition judge at para. 47:

... The starting point must be an examination of the role of the judicial phase of the extradition process. That role, described repeatedly as a modest one, is primarily to ensure the identity of the person sought and to protect that person from being surrendered for conduct that we would not recognize as criminal....

Further, at page 248, paragraph 48:

... In the foundation case of United States of America v. Sheppard (1976), 30 C.C.C. (2d) 424 at 433-34, Ritchie J. made it clear that the judge's role in determining sufficiency of evidence did not extend to passing judgment on its reliability. He held at p. 427 that the judge was required to commit the fugitive in any case "in which there is admissible evidence which could, if it were believed, result in a conviction".... Post-Charter cases have held that the Sheppard test applies and that the extradition judge must refrain from weighing the evidence or assessing credibility....

[13] The test in determining whether there is a prima facie case is the same for committal for trial after a preliminary inquiry. The assessment of the reliability of the evidence is determined at the trial in the requesting state.

[14] However, the extradition judge still has a role in assessing the sufficiency of the evidence, in spite of the foreign certification that the evidence is sufficient. Canada maintained the judicial hearing on this issue despite pressure by other governments to abandon it. See Yang, supra, at paras. 24-28.

[15] The judicial hearing is one of the safeguards in place to protect individuals sought for extradition. In United States v. Dynar, [1997] 2 S.C.R. 462 at para. 121, the Court said:

One of the most important functions of the extradition hearing is the protection of the liberty of the individual. It ensures that an individual will not be surrendered for trial in a foreign jurisdiction unless, as previously mentioned, the Requesting State presents evidence that demonstrates on a prima facie basis that the individual has committed acts in the foreign jurisdiction that would constitute criminal conduct in Canada.

[16] The importance of this judicial function was also discussed in Yang, supra.At para. 63, Rosenberg J.A., speaking for the Court, said the following:

Equally, this critical function for protection of the liberty of the individual cannot be reduced to a meaningless ritual. While the judicial phase is not a full-fledged trial, neither "is it a mere formality": Shulman at p. 307. Thus, the judge must be in a position to exercise that function. 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. This is not a question of the judge weighing the evidence or passing on its reliability, but of carrying out the function assigned by statute. For example, if the record of the case contained a statement that the police suspected the fugitive committed the offence, without stating the basis for this opinion, and this was the only evidence proffered by the extradition partner as proof that the fugitive committed the offence then, even if this opinion was admissible in the requesting state as proof of the offence, it would not be sufficient to meet the s. 29 test for committal because it would have no probative value.

Further, at para. 64:

This is to be distinguished from a case that depends solely upon hearsay. If the hearsay statement contains direct evidence of guilt, albeit second- or third-hand, the judge would nevertheless be required to commit, since the judge's function does not include the power to pass on the reliability of that evidence.

[17] Parliament could have done away with the prima facie case requirement and simply required a judicial "rubber-stamping" of the extradition request once the record of the case was certified sufficient. It did not follow this route. Therefore, the judicial function still requires a careful review of the evidence to ensure that the foreign state has established a prima facie case.

[18] What is meant by a prima facie case? There have been many decisions on this issue. I have already referred to the decision in U.S.A. v. Sheppard. In R. v. Arcuri, [2001] 2 S.C.R. 828, the Court once again tackled this question. The test as stated in Sheppard is the same as committal for trial "in any case in which there is admissible evidence which could, if it were believed, result in a conviction." See Arcuri at para. 21.

[19] The Court discussed how the test is applied, depending on whether the evidence is direct or circumstantial. An accused will be committed for trial or ordered committed for extradition if there is direct evidence as to every element of the offence.

[20] In Arcuri, at paras. 23-24, the Court discussed how the judge is to approach circumstantial evidence, that is, evidence other than eyewitnesses to a material fact. Circumstantial evidence may be testimonial. In these circumstances, the judge has to weigh the evidence, assuming it is true, and assess whether the inference as sought by the Crown, or, as here, the Requesting State, are reasonable inferences to be drawn from the circumstantial evidence. At para. 23, the court said:

... The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. [Emphasis in original]

[21] The traditional test for assessing a prima facie case is affirmed in Arcuri, supra, and restated at paras. 29-30 as follows:

The question that arises in the case at bar is whether the preliminary inquiry judge's task differs where the defence tenders exculpatory evidence, as is its prerogative under s. 541. In my view, the task is essentially the same, in situations where the defence calls exculpatory evidence, whether it be direct or circumstantial. Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as by definition the only conclusion that needs to be reached is whether the evidence is true. 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.

In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. [Emphasis in original]

[22] This case involves a combination of direct and circumstantial evidence. The evidence, in my view, has been presented in a most unsatisfactory manner. Indeed, counsel for the U.S.A. acknowledged that this was not the best worded Record of the Case. This is not a criticism of counsel from the Department of Justice. My comments are directed at the material the U.S.A. provided to them to present to this Court.

[23] An example of a problem with the Record is that the source of some of the evidence relied upon was not identified. Such evidence includes the so-called "identifiers," including height, weight and date of birth, attributed to Mr. Graham, in the Record of the Case.

[24] Identity is a critical issue in this case. The U.S.A. must establish two things. The first is that the person before me is the person sought by the Requesting State. The second relates to the offence itself. Identity is an essential element of the offence and therefore there must be some evidence that the person before me is the person who committed the offence. Given that the offence occurred some 30 years ago, identity of the murderer is a very live issue.

Record of the Case

[25] There is some evidence which, at this point in the proceedings, is not disputed. The body of Anna Mae Aquash was found in February 1976. She had been shot in the back of the head with a .32 calibre gun. It is a reasonable inference to draw that she was the victim of a culpable homicide. Therefore, the double criminality aspect of the extradition is met by the United States of America.

[26] Before I turn to the identity issues, I will address the arguments raised by the defence in terms of what I will refer to as "technical challenges to the certification." I use the term 'technical' not in any disparaging way, but as descriptive.

[27] Briefly, the factual context of these arguments is that there are two witnesses who the defence submits will or cannot testify.

[28] The Record of the Case summarized the evidence of Mr. Al Gates. Mr. Gates passed away before the Record of the Case was certified: See the reasons in U.S.A. v. Graham (31 January 2005), Vancouver 22296 (B.C.S.C.) on the application for a stay of proceedings for further discussion of Mr. Gates' evidence. The U.S.A. has withdrawn Mr. Gates' evidence.

[29] Next, the defence has filed an affidavit of Terry Gilbert, who is counsel for Arlo Looking Cloud, the coaccused in these allegations. Mr. Looking Cloud has already been convicted of the murder of Ms. Aquash in South Dakota. Mr. Looking Cloud's evidence is summarized in the Record of the Case and implicates Mr. Graham. Mr. Gilbert deposed that Mr. Looking Cloud will not testify in any proceedings against Mr. Graham.

[30] The decision on whether to admit documents relating to both of these witnesses has been reserved to deliver as part of these reasons.

[31] The records relating to the unfortunate passing of Mr. Gates are admissible. They are relevant to the arguments that counsel seek to make in relation to the certification itself.

[32] Similarly, the affidavit of Mr. Gilbert is admissible. The Act provides for the admission of defence evidence and the affidavit falls within the ambit of these provisions. It is also relevant to the arguments that counsel seek to make in terms of the certification.

[33] Counsel submits that because Mr. Mandel has stated that evidence is "available for certification," and, in fact, Mr. Gates' evidence is not available, then doubt is cast on the accuracy of the certified document. The summary of the evidence states that the witnesses are "expected to testify," and the defence submits also that Mr. Looking Cloud will not testify and this casts further doubt on the certification.

[34] The U.S.A. submits that until Mr. Looking Cloud is in the witness stand, it is speculation that he will not testify. I will deal shortly with the evidence of Mr. Looking Cloud in more detail.

[35] Although I have concerns regarding the wording of the Record of the Case, as noted above, it appears from the multitude of cases that what is contained in the Record of the Case is acceptable under the new Act. My concerns relate to the fact that there is no evidence regarding when the witnesses were interviewed or whether their evidence was obtained from grand jury transcripts, or from prior statements or trial transcripts from Mr. Looking Cloud's trial.

[36] When a comparison is done between this Record and the excerpts in the Yang case, as they appear in the Court of Appeal decision, this Record had little detail in terms of the circumstances under which the evidence was gathered.However, it is clear that those concerns are not relevant to the task that I have of assessing whether there is sufficient evidence for committal unless the evidence falls so short of what is expected, as discussed in Yang at para. 63, that the evidence is so bereft of detail that it cannot be probative. Some of the evidence in this Record falls into this category, which I will refer to shortly. However, the general way the evidence has been summarized and presented in this case is not a basis on which I can deny committal.

[37] The next argument relates again to the evidence of Mr. Gates. The defence submits that the Record of the Case was certified sufficient for prosecution containing the evidence of Mr. Gates. It is submitted that by withdrawing this evidence the entire certification must fall, as some of the evidence on which Mr. Mandel relied to say that the evidence was sufficient is no longer part of the Record of the Case.

[38] The defence submits that the U.S.A. must file a new certified Record of the Case stating that that evidence is sufficient without Mr. Gates' evidence.

[39] Withdrawing the evidence of Mr. Gates still leaves the remainder of the Record of the Case. The U.S.A. is entitled to withdraw evidence from the proceeding. The certification, in my view, is not affected. What is affected is whether there is sufficient evidence remaining for this court to commit. I see no requirement for the U.S.A. to file either a new or supplemental Record of the Case when it withdraws evidence.

[40] I will next address the question of whether Mr. Graham is the person sought by the U.S.A. In my view, the evidence establishes, on the standard I have noted above, that he is the person sought.

[41] There is similarity of the name of John Graham between the authority to proceed and the booking sheet signed by the person before me as "John Graham," (s.37(a) of the Act). Mr. Graham acknowledged to Inspector Darbyshire that he was the person they were looking for in relation to the Aquash matter. Finally, there is the identification by John Trudell, which I will return to when discussing whether there is evidence that Mr. Graham committed the offence charged.

[42] Counsel has submitted that there is a substantial height discrepancy between the height of the Mr. Graham who was arrested, which is recorded as 168 centimetres on the Vancouver booking sheet, and the identifier of 188 centimetres that appears in the Record of the Case.

[43] Although I am not relying on the identifiers as evidence against Mr. Graham, because it is my view that evidence is so bereft of detail in terms of its source that it has no probative value (see Yang at para. 63), I do consider the height in the context of evidence that might suggest that the Mr. Graham before me is not the person sought by the U.S.A., so in other words to the benefit of Mr. Graham. Further, I am also alive to the fact that there was no fingerprint evidence linking the person before me and the person sought. However, taking all that evidence into account and the legal test of sufficiency, there is sufficient evidence on this aspect of identification. The person before me is the John Graham who is sought for extradition.

[44] The next identification issue is considerably more difficult, and that is because no single witness identified both an old picture of someone known as "John Boy Patton" and a current photo of Mr. Graham as being the same person. I raised this issue with counsel for the U.S.A. at an early stage of the hearing, and she acknowledged that this was so, but did not seek to file any supplemental material.

[45] I am left, therefore, to cobble together the pieces of identification evidence, and I am asked to draw an inference that once pieced together there is prima facie evidence of identity to justify a committal. This exercise will require an extensive review of the evidence.

[46] There are four photos attached to the Record of the Case. Photograph 2 is a close-up from Photograph 1. Photograph 3 appears to be a booking photograph, but, as noted in an earlier ruling, there is no evidence about where and when this photo was taken. Photograph 4 is the photo taken by Ms. Ismirnioglou, a Corrections officer, when John Graham was arrested on the provisional warrant.

[47] On page 10 of the Record of the Case there is a list of exhibits accompanied by the assertion that Photographs 1 and 2 are of John Graham taken in approximately 1975, and that Photograph 3 is a photograph of John Graham taken in approximately 1983.

[48] One witness, Mr. Trudell, identified John Graham in Photographs 3 and 4. Several witnesses identify the person in Photographs 1 and 2 as John Boy Patton.

[49] As will be seen, the issue is whether John Graham, who is before me, is also John Boy Patton.

[50] I cannot rely on the evidence of the dates of the photographs, with the exception of Photograph 4, as there was no evidence as to the source of that information. This aspect of the Record of the Case is again bereft of detail, and I cannot consider these dates as an accurate statement of when those photographs were taken. In other words, the evidence of the dates of the photos has no probative value.

[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.

[53] For clarity, in assessing the sufficiency of the evidence in this case, I have not taken into account the Introduction/Synopsis at the beginning of the Record of the Case, nor have I taken into account the footnote regarding the National AIM and the information regarding National AIM. This was information for background, but is not relied upon by the U.S.A. for committal.

[54] The following is what the U.S.A. relies upon to establish, on a prima facie basis, that Mr. Graham is the person who shot Anna Mae Aquash.

[55] Sometime in November of 1975 Anna Mae Aquash was driven from Pierre, South Dakota, to Denver, Colorado, by Raymond Handboy. This is in the summary of the evidence of Mr. Handboy.

[56] Troy Lynn Irving lived in Denver, Colorado. In late November 1975, Anna Mae Aquash came to stay at her house. Ms. Irving's aunt, Theda Clarke, brought Ms. Aquash to Ms. Irving's house. Ms. Aquash considered Ms. Irving's home a safe house, as she was a Federal fugitive. This is contained in the summary of the evidence of Troy Lynn Irving.

[57] Ms. Irving is also expected to testify that sometime after Ms. Aquash came to stay at her house a number of people arrived for a meeting. The people present were AIM members and members of other activist groups. There is evidence that "AIM" is an acronym for the American Indian Movement. Present, according to Ms. Irving, were Corky Gonzalez, Ernesto Vigil, Theda Clark, Julian Pokrywka and John Boy Patton a.k.a. Graham. Ms. Irving says that Ms. Aquash was frightened and told her that if she was taken from Irving's house no one would ever see her again.

[58] After the meeting, Theda Clarke told Ms. Aquash that she was going to be taken to South Dakota. Present when she left, according to Ms. Irving, were George Palfy and Angela Begay, also known as Angela Janis. Ms. Aquash was taken by Theda Clarke, Arlo Looking Cloud and John Boy Patton.

[59] Ms. Irving is also expected to testify that sometime later she had a conversation with Arlo Looking Cloud in the presence of John Trudell, who is another AIM member. She reports that Arlo Looking Cloud told her the following, and I quote from the record of the case:

Theda, John Boy, and he took Anna Mae to a house in Rapid City. He stated that they then went to another house in Rapid City, and finally took her down to a house on the Rosebud Indian Reservation and Arlo and Annie Mae stayed outside while Theda, John Boy, and others were inside the house. Arlo told her that he and John Boy were given the assignment earlier of guarding Aquash and keeping her in the house. Arlo said that he was told to not let her get out of the car and that while waiting in the car, Aquash begged and pleaded with him to let her go, and he told her that he couldn't do that. Arlo told Irving that Aquash stated, they're in there deciding my fate and they're probably going to make you pull the trigger. Arlo said that, after that Theda and John Boy came out, and he, Theda, John Boy and Aquash drove back towards Pine Ridge and to the Badlands. Arlo said that they parked the car on the side of the road and he and John Boy got out of the car with Aquash and walked some distance while Theda remained in the car. Arlo stated that John Boy had a gun and that Anna Mae asked to pray. They let her pray and then John Boy put the gun to her head and pulled the trigger.

[60] There is no evidence that Troy Lynn Irving identified any of the four photos appended to the record of the case.

[61] Mary Johnson was at Troy Lynn Irving's house the night Anna Mae Aquash was taken away. She is expected to testify that Theda Clarke told her that they were going to get rid of Anna Mae because she knew too much. Ms. Johnson says she saw "John Boy, Anna Mae and Theda" leave from Irving's. She does not mention Mr. Graham by name nor does she identify any of the Photographs.

[62] Angela Janis, who was also known as Angela Begay, knew Anna Mae Aquash. She is expected to testify that she lived with John Graham, also known as John Boy Patton, in the 1970s. She said that both were involved in the American Indian Movement in Denver, Colorado.

[63] Ms. Janis was at Ms. Irving's when Anna Mae Aquash was there. She is expected to testify that she received a call from Thelma Rios from South Dakota and was told that Ms. Aquash was an informant and she had to be brought to Rapid City. She said she gave this information to someone, possibly "John Boy or Theda." She said that "Theda, John Boy and Arlo Looking Cloud then tied Ms. Aquash up and took her from the residence." Ms. Janis knew that Theda Clarke drove a red Pinto. Ms. Janis identified John Graham in Photographs 1 and 2.

[64] George Palfy was an AIM member in Denver, Colorado, in 1975. He is expected to testify that he knew John Graham as John Boy Patton. His evidence is summarized as follows, and I quote from the Record of the Case:

In late 1975, he received a call from Troy Lynn Irving to come to her residence in Denver. She told him there was a lady in her house that National AIM had told them to keep there and that they wanted to take her to South Dakota because she had been accused of being an FBI informant. Irving asked Palfy to go over there and talk to them and help them decide what to do. Irving said the girl was named Anna Mae Aquash. At Irving's home, a discussion took place between Troy Lynn, Theda Clarke, and two individuals that he knew were from the Chicano Movement, Corky Gonzalez and Ernesto Vigil. One of these individuals stated that the way they dealt with informers was to take them out into the hills and get rid of them.

[65] Mr. Palfy is also expected to testify that Ms. Aquash's hands were tied behind her back and she was placed in the back of a red Pinto station wagon with wood trim. Mr. Palfy is able to identify Photograph 2 as Mr. Graham.

[66] Candy Hamilton was an AIM member in Rapid City in 1975. She saw Ms. Aquash at the Wounded Knee Legal Defence/Offense Committee house in Rapid City in December 1975. She said Aquash was upset at the time. She makes no identification.

[67] Cleo Gates was an AIM member living on the Pine Ridge Indian Reservation in Allen, South Dakota, in 1975. She is expected to testify that in late November or early December Theda Nelson (other witnesses say that Theda Nelson is also known as Theda Clarke), Arlo Looking Cloud, John Boy Graham and Anna Mae Aquash came to her house. She said that the three, Theda, Arlo and John Boy, spoke with her husband, Dick Marshall. Her husband later told her that they wanted to hide Aquash at their house, but they refused and the four left. She makes no identification.

[68] Frank Dillon had a relationship with Troy Lynn Irving at the time of these events. He said, "John Boy (Graham)" came over to his house and told him that, "We had to move an informant. We had to off her." He was present when John Boy told Troy Lynn Irving that Ms. Aquash's body had been found. Mr. Dillon is also expected to testify that in 1976 Mr. Graham told him that he put a gun to the back of Aquash's head and shot her. Mr. Graham said also he told Mr. Dillon that Theda Clarke was with him.

[69] Richard Two Elk is expected to testify that he knew "Graham" at the time as John Boy Patton and as a fellow AIM member. He identified Graham in Photographs 1 and 2.

[70] Darlene Nichols is expected to testify that she was also an AIM member at the time and will say that she knew "Graham" as John Boy Patton and can identify him in Photographs 1 and 2. Neither of these witnesses say how they know John Boy Patton is now "Graham," nor is there a reference to John Graham in the summary of their evidence.

[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 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's 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.

E.A. Bennett, J. The Honourable Madam Justice E.A. Bennett

April 20, 2005 - Revised Judgment

Corrigendum to the Oral Reasons for Judgment issued advising that the style of cause was incorrect. It should read:

Attorney General of Canada on behalf of the United States of America v. Graham

This has now been amended.