Graham Evidence Upheld

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: A.G. of Canada on behalf of The U.S.A. v. Graham 2004 BCSC 1768 Date: 20041213 Docket: 22296 Registry: Vancouver Between: The Attorney General on Behalf of the United States of America Respondent And: John Graham Applicant Before: The Honourable Madam Justice Bennett Ruling on admissibility of evidence of Inspector Darbyshire and Cheryle Ismirnioglou on Voir Dire December 13, 2004 Counsel for the Respondent D.J. Strachan & J.G. Johnston Counsel for the Applicant T.E. La Liberte, Q.C. & G.P. DelBigio Place of Hearing: Vancouver, B.C.

[1] THE COURT: The United States of America (USA) seeks to extradite a person named John Graham to South Dakota to face a charge of first degree murder arising from the death of Anna Mae Aquash, (also known as Pictou), some 30 years ago. It will be apparent shortly why I have referred to the person sought as a person named John Graham.

[2] Section 29(1)(a) of the Extradition Act, S.C. 1999, c.18 requires, amongst other things, that the USA satisfy me that the person before me is the person they are seeking.

[3] There are two aspects to proof of identity. One is that the person before me is the John Graham, who is sought by the USA. The second is that there is evidence, that if charged in Canada, would result in being committed for trial.

[4] The USA has tendered evidence on the first aspect of the identity issue from two witnesses in a voir dire which is challenged by the defence. Facts

[5] The credibility of neither witness was disputed, therefore, I accept their evidence as follows.

[6] I add that I will refer to the person arrested not as Mr. Graham, but as "the person before me."

[7] The person before me was arrested on a charge of sexual assault on December 1st, 2003. At some point, the Vancouver Police also concluded that there was a provisional arrest warrant in existence for his extradition. I draw this inference because Inspector Darbyshire of the Major Crime Unit of the RCMP was called by the Vancouver Police and advised that the person before me was in custody. Inspector Darbyshire has been involved in the investigation of John Graham in concert with the Federal Bureau of Investigation for some time. Indeed, Inspector Darbyshire swore the affidavit for obtaining the provisional arrest warrant for John Graham under the Extradition Act.

[8] Inspector Darbyshire was taken to a small interview room where a person he believed to be John Graham was waiting. He identified the person before me as the person he met in the interview room.

[9] Inspector Darbyshire was in plain clothes. He entered the interview room alone. He told the person before me his name, rank and showed him his badge. He asked, "Are you John Graham?" The person before me replied, Yes. Then Inspector Darbyshire read the person before me his rights under the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, he told him he had the right to retain and instruct counsel and that if he could not afford a lawyer, a free lawyer would be provided for him. The person before me said that he had already spoken to his lawyer, Mr. La Libert?, and that he was not going to say anything to the police.

[10] Inspector Darbyshire informed him of his right not to speak to him or say anything and that if he did say anything it could be used against him.

[11] Inspector Darbyshire knew that the person had originally been arrested for sexual assault. He did not offer the person before me the use of the telephone or to call his lawyer because, he said, the person had said he had already consulted his counsel.

[12] Inspector Darbyshire then asked the person before me for his name and his date of birth. He replied, "John Graham, August 13, 1955." He also said he did not have an address in Vancouver. The words of Inspector Darbyshire were, "NFA," which I understand to mean "no fixed address."

[13] Inspector Darbyshire read him the provisional arrest warrant word for word and gave him a copy of the warrant and the person before me said that he understood.

[14] Inspector Darbyshire then asked the person before me if he had any identification. He replied that his ID had been stolen, he had no valid passport and no card from Indian Affairs.

[15] Inspector Darbyshire asked the person before me if he was the person, "we were looking for in the Anna Mae Aquash case," and he nodded yes.

[16] Inspector Darbyshire knew that identification was something that had to be established in an extradition. It was important that this was the John Graham with that date of birth. Apparently, the police did not want to arrest the wrong person.

[17] Inspector Darbyshire had been told by the Vancouver City Police that the person before me had denied any knowledge of a sexual assault warrant and Inspector Darbyshire had been told that the person before me was told that his identity would be cleared up at the jail.

[18] At 16:40 hours, Inspector Darbyshire returned the person before me to the custody of the Sheriffs, saw custody transferred to a Corrections Officer named Ms. Ismirnioglou and saw her fingerprint the person before me.

[19] Ms. Ismirnioglou testified that she has been a Corrections Officer for 15 years. She works in the Vancouver jail doing booking, fingerprinting and photographing of inmates as they come into her custody.

[20] She has no independent recollection of fingerprinting and photographing the person before me, as she fingerprints and photographs anywhere between 30 to 60 people a day. However, she initialled and signed the documents where the fingerprints and photographs appear, which tells her that she was the person who took the photographs and fingerprints. I add that the USA does not seek admission of the fingerprints, only the photograph.

[21] Further, Ms. Ismirnioglou testified that before she took the fingerprints and photograph, she would inevitably have confirmed the name and date of birth of the person with whom she was dealing. Further, she asked each person to sign the sheet and the signature of John Graham appears in several places on the booking sheet.

[22] The USA also seeks admission of the confirmation that the person said he was John Graham and provided the date of birth which appears on the booking sheet.

[23] Ms. Ismirnioglou agreed that she knew she could take the person^?s fingerprints by force if necessary.

[24] Ms. Ismirnioglou did not book in the person before me, but in cross-examination, she reviewed the booking procedure in detail. She completed fingerprinting and photographing the person before me at 16:46 hours.

[25] The defence called no evidence on the voir dire. Issues : 1) The admission into evidence of the statement given to Inspector Darbyshire. (i) Was the statement freely and voluntarily made? (ii) Was the statement taken in violation of the person's before me rights pursuant to s. 10(b) of the Charter of Rights and Freedoms? 2) The admission of the statement to Ms. Ismirnioglou. (i) Was the statement freely and voluntarily made? 3) The admission of the photograph and the booking sheet. (i) Is the photograph compelled evidence and therefore should be excluded pursuant to s. 7, 24(1) or s. 24(2) of the Charter of Rights and Freedoms? (ii) Is the booking sheet admissible either pursuant to common law or pursuant to the business record exception to the hearsay rule? 4) Is part of an affidavit of the person before me filed in a bail hearing admissible at the instance of the USA as proof of identification of the person sought? 1) The Statement to Inspector Darbyshire (i) Was the statement freely and voluntarily made?

[26] The evidence sought to be admitted is that upon entering the interview room, Inspector Darbyshire asked the person in the room, "Are you John Graham," and the response was, "Yes." Next, that in response to further questioning, the person before me said his name was John Graham and his date of birth was August 13, 1955. Finally, Inspector Darbyshire asked the person before me if he was the person they were looking for in the Anna Mae Aquash case, and the person before me nodded affirmatively.

[27] Any discussion of whether a statement is voluntary must begin with R. v. Oickle, [2000] 2 S.C.R. 3. In Oickle, the Court determined that the confession rule, as it has developed in Canada, is concerned with voluntariness of a statement in the broad sense.

[28] The Court discussed the sometimes competing goals of the confessions rule. At para. 33, the Court said this: In defining the confessions rule, it is important to keep in mind its twin goals of protecting the rights of the accused without unduly limiting society's need to investigate and solve crimes. Martin J.A. accurately delineated this tension in R. v. Precourt (1976), 18 O.R. (2d) 714 (C.A.), at p. 721: Although improper police questioning may in some circumstances infringe the governing [confessions] rule it is essential to bear in mind that the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of having committed the crime being investigated. Properly conducted police questioning is a legitimate and effective aid to criminal investigation... . On the other hand, statements made as the result of intimidating questions, or questioning which is oppressive and calculated to overcome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible.... All who are involved in the administration of justice, but particularly courts applying the confessions rule, must never lose sight of either of these objectives.

[29] Further, the Court emphasized that the assessment of whether a statement is voluntary is contextual: See paras. 47 and 71, which I will refer to in more detail later.

[30] In this case, there is no evidence of an inducement or threat or that the person before me did not have an operating mind. I bear in mind that the onus is on the prosecution to prove that a statement is voluntary, beyond a reasonable doubt.

[31] Inspector Darbyshire attended at the police station to execute the provisional arrest warrant on John Graham. He was aware that he had to make sure he arrested the right person. He was also aware that identification had to be established in an extradition case. He may also have attended to obtain a statement about the events 30 years ago, but was advised by the person before me that he had spoken with his lawyer and was not going to give a statement.

[32] Further, at the time of providing the information regarding identity, no one else was present, nor did the Crown call any of the people who had been involved in the earlier arrest, nor in my view are they required to do so, in these circumstances.

[33] As noted above, the competing societal goals must be kept in mind when assessing voluntariness. The only information obtained related to whether Inspector Darbyshire was executing the warrant on the right person. There was no need for the prosecution in this case to tender the evidence of other witnesses with respect to whether inducements or threats had been made. There is no evidence that the statements were obtained in any manner other than through the free will of the person before me. Therefore, I am satisfied beyond a reasonable doubt that the statements were voluntarily made. (ii) Was there a violation of the s. 10(b) right to counsel?

[34] Unlike the question of voluntariness, the onus with respect to this issue lies on the defence to show that the rights of the person before me were violated. When Inspector Darbyshire first entered the interview room, he asked the person there, "Are you John Graham ?" Upon receiving an affirmative answer, he read this person his rights pursuant to the Charter, and was told that he had spoken with his lawyer and was not going to say anything. The person before me was asked to give his name and date of birth and Inspector Darbyshire sought and obtained confirmation that he was the person they were seeking in connection with the extradition.

[35] The argument is twofold: First, Inspector Darbyshire asked for the name of the person before me before he read him his Charter of Rights and secondly, he did not give him an opportunity to consult counsel again after the provisional arrest warrant was read. The defence submits that I should infer that the person before me was read his rights to counsel on the sexual assault charge but not on the extradition.

[36] The defence submits that once his rights had been read in relation to the extradition, that Inspector Darbyshire was obliged to give the person before me another opportunity to consult counsel before he questioned him, as he was in further jeopardy. Counsel referred to the decision in R. v. Evans, [1991] 1 S.C.R. 869. I have also considered R. v. Black, [1989] 2 S.C.R. 138 as well as the case law relating to the obligations of the police when a person is arrested, including the requirement to give him a reasonable opportunity to consult counsel. If an accused asserts his right to counsel, the police have an obligation to hold off questioning the suspect: See R. v. Prosper, [1994] 3 S.C.R. 236.

[37] There is no evidence that the person before me was not given his rights pursuant to s. 10(b) of the Charter in relation to the extradition when he was arrested. The defence could have called either the arresting officer or the person before me to give this evidence. They did not. I am not prepared to draw the inference that he was not told of these rights.

[38] Therefore, there being no evidence of a Charter breach, the evidence is admissible.

[39] Further, even if I am incorrect in that conclusion, Inspector Darbyshire did read the s. 10(b) Charter rights to the person before me after reading the arrest warrant. There is no evidence that the person asserted that he wished to speak to counsel again, so there was no obligation to hold off questioning him. This case is not like Black where the police did not reread Ms. Black^?s rights to her when her jeopardy changed. Thus, in any event, the second of the statements is clearly obtained after the Charter of Rights had been read.

[40] In conclusion, I find that the statements made to Inspector Darbyshire are admissible as being freely and voluntarily made and free from Charter violation, therefore admissible on the extradition proceeding. 2) Statements to Ms. Ismirnioglou.

[41] Ms. Ismirnioglou does not recall speaking to the person before me. However, she said she always confirms the name and date of birth of the person as it is recorded on a sheet she is provided with and she has the person sign the booking sheet. She said on this day she would have confirmed that she was dealing with John Graham and would have confirmed the date of birth given to her. I accept her evidence that she would have confirmed the identity of the person as it is simply common sense that she would not photograph or fingerprint someone if she was not satisfied that she had the correct person. Plus, her evidence is confirmed by the fact that the signature of "John Graham" appears on each page. In addition, Inspector Darbyshire saw her fingerprint the person he interviewed.

[42] In R. v. Richards (1997), 6 C.R. (5th) 154 (B.C.C.A.), the court addressed the issue of the incompleteness of an officer^?s recollection of a statement, and held at paragraph 31: The fact that the investigating officer is unable to recite the exact words spoken does not render a statement inadmissible (R. v. Kennedy (1972), 6 C.C.C. (3d) 390 (B.C.C.A.)). The possibility of incompleteness is a matter of weight for the jury (R. v. Lessard (1982), 10 C.C.C. (3d) 61 (Qu?. C.A.); R. v. Lapointe (1983), 9 C.C.C. (3d) 366 at 377-82 (Ont. C.A.), affirmed [1987] 1 S.C.R. 1253; R. v. Howard (1983), 3 C.C.C. (3d) 399 at 412 (Ont. C.A.); R. v. Ferris (1994), 27 C.R. (4th) 141 at 153 (Alta. C.A.), affirmed [1994] 3 S.C.R. 756).

[43] The next question is whether the USA has to establish the voluntariness of this statement. In R. v. Tran (1999), 129 B.C.A.C. 277, the court considered whether a voir dire was needed before the Crown cross-examined an accused on contrary information he provided when he was booked into cells, including the address that appeared on the sheet, as well as leading the evidence in rebuttal. The Court said the following at paras. 19-20: As to the two prisoner reports, they were completed by police officers for administrative purposes. They were part of the standard procedure for booking the appellant in as a prisoner. The officers asked the appellant for his name, address and telephone number and recorded that information on the forms. The purpose of the documents was to assist in tracking the appellant and his personal effects while he was in custody. The officers were not questioning the appellant in furtherance of an investigation, and his statement to them concerning his address was not within the meaning of the rule requiring proof of the voluntariness of confessions. The officers were not seeking, nor was the appellant providing, information relating to this or any other offence. Completion of the booking-in document is an exception to the rule concerning statements to persons in positions of authority. No voir dire was required either before allowing cross-examination of the appellant on these documents, nor as to the admissibility of the rebuttal evidence tendered by the Crown in calling the justice of the peace and the two police officers who completed the forms.

[44] Counsel for the USA submits that the information gathered by Ms. Ismirnioglou is similar in nature to information gathered by a booking officer and therefore no voir dire was necessary to determine admissibility.

[45] Ms. Ismirnioglou's power to take fingerprints and photographs comes from the Identification of Criminals Act, R.S.C. 1985, C. I-1 of which more will be said later.

[46] The decision in Tran was made before the decision in Oickle. While it is not for me to suggest that Tran was wrongly decided, I have concluded that its application is limited to the actual taking of information at booking as a result of the decision in Oickle.

[47] In Oickle, the Court extensively reviewed, and in some ways, revised, the confession rule. The Court said at para. 47: The common law confessions rule is well-suited to protect against false confessions. While its overriding concern is with voluntariness, this concept overlaps with reliability. A confession that is not voluntary will often (though not always) be unreliable. The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.

[48] Further, at paragraph 71: Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one ... [A] court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession^?s voluntariness, taking into account all the aspects of the rule discussed above.

[49] The context here, is that before Ms. Ismirnioglou took the fingerprints and photographs of the person before me, he acknowledged to her that his name was John Graham and his date of birth was August 13, 1955. She said there were other people around her. I do not know if any of those people said anything to the person before me. I know that Inspector Darbyshire interviewed the person before me minutes earlier, and the statement made to him was voluntary. I know that the person before me consulted counsel before being photographed and fingerprinted. Inspector Darbyshire watched the process of fingerprinting and gave no evidence of anything untoward occurring while this was taking place.

[50] In the context of these circumstances, as informed by the test in Oickle, I am satisfied beyond a reasonable doubt that the acknowledgment by the person before me that his name was John Graham and that his date of birth was August 13, 1955, was freely and voluntarily made and that this statement is admissible during the extradition hearing. 3) The admission of the photograph and the booking sheet (i) Is the photograph "compelled evidence" and therefore should it be excluded pursuant to s. 7, 24(1) or 24(2) of the Charter of Rights and Freedoms?

[51] The person before me submits that the photograph taken by Ms. Ismirnioglou should be excluded from evidence on the basis that it is compelled evidence and therefore the use of it in the extradition hearing violates s. 7 of the Charter of Rights and Freedoms.

[52] The photograph taken by Ms. Ismirnioglou is tendered for two purposes. First, to confirm the identity of the person before me as John Graham. Secondly, this photograph was shown to a witness in the United States, a Mr. Trudell. Mr. Trudell has identified the photo as the John Graham that he knew to be involved in the shooting of Ms. Aquash. Thus, the evidence is significant.

[53] The person before me submits that he was compelled to provide his photograph pursuant to the Identification of Criminals Act, and permitting the United States to use that photograph to prove the case against him violates, amongst other things, his right to silence and his right not to incriminate himself.

[54] The relevant section of the Identification of Criminals Act is as follows: s. 2(1): The following persons may be fingerprinted or photographed or subjected to such other measurements, processes and operations having the object of identifying persons as are approved by order of the Governor in Council: including, (b) any person who has been apprehended under the Extradition Act;

[55] The person before me does not challenge the constitutionality of this provision but submits that the photograph obtained may be used for a very limited purpose.

[56] The main submission is based on the decisions of R. v. White, [1999] 2 S.C.R. 417, R. v. Fitzpatrick, [1995] 4 S.C.R. 154, British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3, and the decision in R.S.J. v. The Queen, [1995] 1 S.C.R. 451. In White, the Crown in a criminal prosecution, tendered three statements made to police officers which were required to be made pursuant to provincial motor vehicle legislation. The Court ruled that the statements were not admissible.

[57] The Court, in discussing the principle of self-incrimination, confirmed that it is a principle of fundamental justice. At para. 42, quoting Chief Justice Lamer in R. v. Jones, [1994] 2 S.C.R. 229, the Court defined the right as: The principle against self-incrimination, in its broadest form, can be expressed in the following manner: ... the individual is sovereign and ... proper rules of battle between government and individual require that the individual ... not be conscripted by his opponent to defeat himself... Any state action that coerces an individual to furnish evidence against him- or herself in a proceeding in which the individual and the state are adversaries violates the principle against self-incrimination. Coercion, it should be noted, means the denial of free and informed consent.

[58] The Court held that the analysis of whether the principles against self-incrimination have been violated, "demands different things at different times" (para. 45). The application of the principle must be considered contextually. Indeed, the Court said at para. 46, "[A] a court must begin "on the ground", with a concrete and contextual analysis of the circumstances, in order to determine whether the principle against selfincrimination is actually engaged on the facts."

[59] The principle has at least two key purposes: namely, to protect against unreliable confessions, and to protect against abuses of power by the state (para. 43). The s. 7 analysis requires a balancing of both individual and societal interests (para. 47). The balancing involves the principle against self-incrimination and the question of whether relevant evidence should be available to the trier of fact in the search for the truth (para. 47).

[60] In weighing the factors in White, the Court looked at the factors that were of significance in Fitzpatrick, (at para. 51): i) The lack of real coercion by the state in obtaining statements; ii) The lack of an adversarial relationship between the accused and the state at the time the statements were obtained; iii) The absence of an increased risk of unreliable confessions as a result of statutory compulsion; iv) Absence of an increased risk of abuses of power by the state as a result of statutory compulsion.

[61] i) Lack of real coercion: In White, the accused testified that she knew she was obliged to provide statements. Here, the person before me did not testify, however the statute and the evidence of Ms. Ismirnioglou make it clear that had the person before me objected to having his photograph taken, it would have been compelled by force.

[62] ii) There is no dispute that there is an adversarial relationship between the accused and the state when the photograph was taken.

[63] iii) As the objection is to a photograph, there is no risk of an unreliable confession as a result of a compulsion.

[64] iv) The statute permits not only that photographs be taken but that force may be used to obtain photographs from reluctant prisoners. In considering whether there is an absence of increased risk of abuse of power by the state, it may be useful at this juncture to consider some of the other decisions which touch upon this issue.

[65] In R. v. Beare; R. v. Higgins [1988] 2 S.C.R. 387, the Court upheld the constitutional validity of s. 2 of the Identification of Criminals Act. The section was worded differently, however fingerprinting and photographing were part of the section by virtue of an Order in Council: See R. v. Beare; R. v. Higgins, (1987) 56 Sask. R. 173 (C.A.) at paras. 35 to 36. The focus of the decision was on the power to fingerprint.

[66] The Supreme Court of Canada found that the principles of fundamental justice were not violated by requiring a person to submit to fingerprints before conviction. As the person before me points out, the court did not specifically address the issue raised here. However, I have concluded that this decision must guide my conclusion. The person before me submits that this case was decided early in Charter litigation and is no longer valid law. I disagree that the case is no longer valid law.

[67] The reasoning of the Court in Beare is of relevance to the issues in this case. At p. 408, the Court in Beare identified the main purposes of the Identification of Criminals Act as: 1) to establish the identity and criminal record of the accused 2) to discover whether there are warrants outstanding for his arrest or if he has escaped from lawful custody and 3) in some cases, to gather evidence which may be relevant to the question of whether or not he committed the crime with which he has been charged.

[68] The Court examined the importance of fingerprinting to the process of criminal investigation and in the judicial process.

[69] Much the same may be said about photographs. Photographs are frequently used to establish identification of suspects, a process that was recognized, for example, by former Mr. Justice Cory in the inquiry regarding Thomas Sophonow: See the Government of Manitoba, "The Inquiry Regarding Thomas Sophonow: Eyewitness Identification Recommendations". [1]

[70] In R. v. Marcoux and Solomon, [1976] 1 S.C.R. 763, Dickson J., as he then was, speaking for the court said at 764 that: ^?"an important pretrial step in many criminal prosecutions is the identification of the accused by the alleged victim." One of the ways of accomplishing this is by way of photographs.

[71] In Marcoux, which I acknowledge is a pre-Charter case, Dickson J. spoke of the scope of the principle of selfincrimination and said at 770-771: An accused cannot be forced to disclose any knowledge he may have about an alleged offence and thereby supply proof against himself but (i) bodily condition, such as features, exhibited in a courtroom or in a police line-up, clothing, fingerprints, photographs, measurements (see the Identification of Criminals Act ... do not violate the principle.

[72] Returning to the Beare decision, the Court also found at 413 that the taking of fingerprints involved minimal intrusion. The process was of short duration, insubstantial, left no lasting impression upon the suspect nor was there any penetration of the body and no substance was removed from the body. The same may be said regarding the taking of photographs.

[73] Further, the court found that the taking of fingerprints was not an unreasonable search nor did it violate the principle of self-incrimination.

[74] The Court, in concluding that there was no violation of the right not to incriminate oneself, relied with approval on the decision of Re Jamieson and the Queen (1982), 70 C.C.C. (2d) 430.

[75] More recently, in R. v. Stonojlovic, [1999] 4 W.W.R. 690 (Alta. C.A.), the court held that the use of a photograph taken pursuant to the Identification of Criminals Act, in an extradition hearing to prove identity did not violate the fugitive's rights. It does not appear that the issue of compelled evidence was argued, however, the majority was not prepared to limit the use of the photograph in the extradition context.

[76] The issue of compelled testimony and the analysis pursuant to the decision in White was recently undertaken in the context of DNA warrants in R. v. S.A.B, [2003] 2 S.C.R. 678. The Court concluded, at paras. 60-61, after balancing the interests of the accused and the importance of the search for the truth, that the legislation reached an appropriate balance.

[77] The person before me rightly points out that there are safeguards in place to ensure that there is no abuse of power in obtaining a DNA warrant, including prior judicial authorization.

[78] I conclude that there is no concern regarding abuse of power as a result of compelled testimony in this case. The statute already permits the taking of photographs by force. Photographs of persons are legitimately used for investigative purposes to establish identification.

[79] The taking of a photograph involves minimal intrusion and does not require the accused to do anything except stand still for a few seconds. Nothing is taken from his person and no intrusive search occurs. The importance of establishing the identification of criminals is of utmost importance to our society. It is also critical that persons are not wrongfully arrested or detained. When taking all the aforementioned into account, including the discussion in Beare and White, and weighing the "factors that favour the importance of the search for the truth and the factors that favour protecting the individual against undue compulsion by the State," I conclude that permitting the use of the photograph in the extradition hearing does not violate the right of the person before me against self-incrimination: See para. 48 of White and para. 60 of S.A.B.

[80] Therefore, the photograph taken by Ms. Ismirnioglou is admissible on the extradition hearing. ii) Is the booking sheet admissible, either pursuant to common law or pursuant to the business record exception to the hearsay rule?

[81] The USA submits that the booking sheet should be admitted on the basis of common law and on the basis of the business record exception to the hearsay rule.

[82] There are two parts of the booking sheet that require different analysis. The front of the first page, (not including the back of the front page) of the booking sheet contains information that was not obtained by Ms. Ismirnioglou but was obtained by whoever booked the person before me into custody. Some of this information appears on the other pages. Other parts of the booking sheet were created by Ms. Ismirnioglou and she has testified to their contents and identified her signature and initials. [83] I conclude that the parts of the booking sheet prepared by Ms. Ismirnioglou and identified by her are admissible into evidence pursuant to the common law: See R. v. Penno (1977), 76 D.L.R. (3d) 529 (B.C.C.A.).

[84] The question regarding the remainder of the booking sheet turns on whether the USA has complied with s. 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5. The relevant parts of s. 30 read: (1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record. ... (7) Unless the court orders otherwise, no record or affidavit shall be admitted in evidence under this section unless the party producing the record or affidavit has, at least seven days before its production, given notice of his intention to produce it to each other party to the legal proceeding and has, within five days after receiving any notice in that behalf given by any such party, produced it for inspection by that party.

[85] The person before me submits that although counsel received a copy of the booking sheet, the USA did not specify that it was going to rely on s. 30 of the Canada Evidence Act. The USA put before me the forms of the notice which made it clear that the USA would be tendering the booking sheet as evidence. Notice was given more than seven days before this hearing. The USA did not specifically invoke s. 30 of the Canada Evidence Act. I do not think the USA is required to specifically state that it intends to rely on a certain provision of the Canada Evidence Act in order for there to be effective notice. The person before me had ample notice of the introduction of this evidence.

[86] What is less clear is whether there is compliance with s. 30(1) and that is whether there is evidence to establish that the booking sheet was made in the usual and ordinary course of business. The evidence of how the booking sheet was created was confusing and only clarified in cross-examination. The process of computerized booking-in of a person in custody was new to me. Insufficient evidence was led that the booking-in process which occurred here was done in the ordinary and usual course of business. I suspect that it was, however, I need to rely on evidence, not speculation.

[87] Therefore, I conclude on the evidence before me in this case, the booking sheet is not admissible as the evidence is insufficient with respect to whether this record was produced as part of the ordinary and usual course of business of the jail, and I refer specifically to the information obtained by someone other than Ms. Ismirnioglou. 4) Is part of an affidavit of the person before me filed in a bail hearing admissible at the instance of the United States as proof of identification of the person sought?

[88] The USA contends that the person before me filed an affidavit on his bail hearing wherein he identified himself as John Graham with a birth date of August 13, 1955. The USA seeks to have this part of the affidavit only admitted into evidence to prove an admission of identity of the person sought.

[89] The defence submits that this evidence should be excluded on two bases. The first that it is compelled evidence and the analysis in White as discussed above should apply. Secondly, the bail hearing is another proceeding and it should be excluded, as its admission would violate s. 13 of the Charter.

[90] I will deal first with the question of whether the affidavit is compelled. Firstly, there is no statutory requirement that a person file an affidavit in this court when applying for bail. Often one is filed and often the judge hearing the bail application will request an affidavit. However, it is not compelled. Further, unlike in White, there is no evidence, that in the absence of statutory compellability, the person before me mistakenly thought he was compelled to give an affidavit on the bail hearing. Therefore, this argument fails.

[91] The next argument is more difficult.

[92] Section 13 of the Charter reads: A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

[93] There are few cases that have considered whether a bail hearing is another proceeding as defined by this section.

[94] In R. v. Buxbaum (1989), 70 C.R. (3d) 20 (Ont. C.A.), the Court of Appeal assumed, without deciding, that a bail hearing was another proceeding.

[95] The only other decision apparently on this point is R. v. Sicurella (1997), 120 C.C.C. (3d) 403 (Ont. Court Prov. Div), where the judge held that a bail hearing was another proceeding for the purpose of s. 13 of the Charter.

[96] The case before me does not deal with whether the USA can cross-examine the person before me on a contradictory statement, but limited to whether it should be permitted to use it substantively to prove identification.

[97] Section 518 of the Criminal Code, R.S.C. 1985, c. C-46 reads in part: (1) In any proceedings under section 515 [which is a bail provision], (a) the justice may, subject to paragraph (b), make such inquiries, on oath or otherwise, of and concerning the accused as he considers desirable; (b) the accused shall not be examined by the justice or any other person except counsel for the accused respecting the offence with which the accused is charged, and no inquiry shall be made of the accused respecting that offence by way of cross-examination unless the accused has testified respecting the offence; This section protects an accused from being questioned on a bail hearing regarding the aspects of the offence.

[98] I conclude that the USA may not introduce the affidavit. I acknowledge I do this in somewhat of a legal vacuum. However, I see no reason to disagree with the lengthy and thorough reasons of Renaud J. in Sicurella as it applies to the USA using the evidence substantively against the person before me.

E.A. Bennett, J. The Honourable Madam Justice E.A. Bennett April 20, 2005 - Revised Judgment Corrigendum to Ruling 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. [1]

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