COURT OF APPEAL FOR ONTARIO
CITATION: United States v. Angelov, 2015 ONCA 659
DATE: 20150930
DOCKET: C59020
Laskin, Feldman and Simmons JJ.A.
BETWEEN
The Attorney General of Canada (On behalf of the United States of America)
Appellant
and
Simo Angelov
Respondent
Heather Graham, for the appellant
E. Chozik, for the respondent
Heard: February 4, 2015
On appeal from the discharge entered on June 20, 2014 by Justice Lois B. Roberts of the Superior Court of Justice, sitting without a jury, with written reasons dated July 8, 2014.
Laskin J.A.:
A. Introduction
[1] The United States applied to extradite the respondent Simo Angelov for his role in a fraudulent scheme to steal credit card data from three Automated Teller Machines (ATMs) in Akron, Ohio. The United States claimed that, at the beginning of May 2012, Angelov and three other men drove from Toronto to Akron. By using tape purchased at a local Home Depot store, they installed skimming devices on the ATMs at three branches of FirstMerit Bank in Akron.
[2] After a hearing to decide whether Angelov should be committed for surrender to the United States, the extradition judge dismissed the application. She concluded that the evidence was insufficient to justify committal for two reasons. First, the evidence identifying Angelov as one of the men “interacting” with an ATM was “manifestly unreliable”. Second, the evidence did not show that Angelov had possession of any of the skimming devices or had knowledge of their purpose.
[3] The United States appeals. It raises two issues:
(1) Did the extradition judge misapply the test for committal?
(2) Are the extradition judge’s conclusions on identification and on possession and knowledge unreasonable?
[4] It is not necessary to answer the first question. This appeal turns on the second question. I would answer that question yes. The record of the case, which includes two supplemental records, sufficiently identified Angelov as one of the four men “interacting” with at least one of the ATMs. And from the evidence as a whole, one can reasonably infer that Angelov had both possession of the skimming devices and knowledge of their fraudulent purpose. Thus I would allow the appeal and order Angelov’s committal into custody for surrender to the United States.
B. Background
[5] To put this issue in context, I will briefly review (a) the purpose of extradition proceedings and the standard for committal and (b) the corresponding Canadian offences for which the United States asked to extradite Angelov.
(a) Extradition proceedings and the standard for committal
[6] In United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77, McLachlin C.J. extensively discussed extradition proceedings and the standards to be applied by an extradition judge at a committal hearing.
[7] At para. 21 of her reasons, she pointed out that extradition proceedings have two purposes: to foster efficient extradition where a case for extradition is made out, a purpose that requires a “flexible, non-technical approach”; and to protect individuals in Canada from deportation unless the requesting state has established at least a prima facie case that the person sought for extradition has committed the offence alleged.
[8] Extradition proceedings have two phases: a judicial phase and a ministerial phase. At the judicial phase, the extradition judge decides whether the evidence tendered by the requesting state is sufficient for committal. If it is, then at the ministerial phase, the Minister of Justice decides whether to surrender to the requesting state the person sought for prosecution by that state. This appeal concerns the judicial phase.
[9] The statutory standard for committal is set out in s. 29(1)(a) of the Extradition Act, S.C. 1999, c. 18:
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…
[10] This standard has two branches – in short form:
· Is there admissible evidence that would justify committal for trial in Canada?
· Is the person before the court the person named in the record of the case and sought by the extradition partner?
[11] The second branch must be established on a balance of probabilities: see Danielson v. United States of America, 2008 BCCA 519, 243 C.C.C. (3d) 88, Chiasson J.A., at para. 22. This second branch of s. 29(1)(a) is not in issue in these proceedings. Angelov was before the extradition judge and he was the person named in the record of the case and the person sought by the United States.
[12] This appeal instead concerns the first branch of s. 29(1)(a): whether the record of the case contained admissible evidence 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.
[13] Under the first branch of s. 29(1)(a), to order committal the extradition judge must determine “whether the conduct described by the admissible evidence would justify committal for trial in Canada… Evidence that would justify committal in Canada requires at least some evidence on every element of the parallel Canadian crime”: Ferras, at para. 38.
[14] In this court’s judgment in United States of America v. Thomlison, 2007 ONCA 42, 84 O.R. (3d) 161, leave to appeal refused, [2007] S.C.C.A. No. 179, which came after Ferras, Moldaver J.A. summarized the test for committal the extradition judge must apply, at para. 47:
To summarize, I am satisfied that if there is some evidence, that is available for trial and not manifestly unreliable, on every essential element of the parallel Canadian crime, upon which a jury properly instructed, could convict, the test for committal will have been met. In that regard, it matters not whether the case against the person sought is "weak" or whether the prospect for conviction "unlikely". The ultimate question of guilt or innocence is for the trial court in the foreign jurisdiction.
(b) The authority to proceed and the corresponding Canadian charge
[15] The United States sought Angelov’s extradition to prosecute him for possession of an ATM skimming device. The authority to proceed signed on behalf of the Minister of Justice stipulates that the Canadian offence corresponding to the conduct alleged against Angelov in the United States is possession of instruments for copying credit card data or forging or falsifying credit cards, contrary to s. 342.01(1) of the Criminal Code, R.S.C. 1985, c. C-46. That section states:
342.01 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years, or is guilty of an offence punishable on summary conviction, who, without lawful justification or excuse, makes, repairs, buys, sells, exports from Canada, imports into Canada or possesses any instrument, device, apparatus, material or thing that they know has been used or know is adapted or intended for use
(a) in the copying of credit card data for use in the commission of an offence under subsection 342(3); or
(b) in the forging or falsifying of credit cards. [Emphasis added.]
[16] A person commits an offence under s. 342(3) where that person:
· Fraudulently and without colour of right
· Possesses, uses, traffics in or permits another person to use credit card data, including personal authentication information
· That would enable a person to use a credit card or to obtain the services that are provided by the issuer of a credit card to credit card holders.
[17] “Personal authentication information” is defined in s. 342(4) of the Criminal Code as a personal identification number (commonly referred to as a PIN) that a credit card holder uses to authenticate his or her identity for that credit card.
C. Are the extradition judge’s conclusions on identification and on possession and knowledge unreasonable?
(a) The record of the case
[18] In support of its request to extradite Angelov, the United States filed a certified record of the case and two certified supplemental records. Under s. 33(5) of the Act, a record of the case includes any supplement added to it. The record of the case contained the following summary of the evidence against Angelov:
(i) The trip
· Angelov, together with three associates (Day, Halil, and Kharraz), drove from Toronto to Akron, Ohio, crossing the border at the Peace Bridge, in a white Ford Focus rented by Day.
· The next day, May 3, Angelov and Day rented a room at the Radisson Inn in Copley, Ohio, about ten miles from Akron.
· Surveillance video from a Home Depot store in Akron shows that at 10:24 a.m. on May 3 Day and Halil purchased what appear to be multiple rolls of tape and Sharpie markers.
(ii) ATM video surveillance and identification of Angelov
· The FirstMerit surveillance video on May 3 records Angelov and his three associates “interacting” with ATMs at three bank branches: Portage Lakes, Fairlawn and Montrose.
· Angelov is on the video at the Portage Lakes and Montrose branches.
· The Portage Lakes video shows:
- From 10:59 to 11:00 a.m., and again from 11:03 to 11:05 a.m., Day and Kharraz interact with a drive-through ATM
- At 3:11 p.m., Angelov and Halil interact with the same ATM for a short period of time
- No transactions took place during the times Day, Kharraz, Angelov, and Halil interacted with this ATM
· The Montrose video shows:
- From 12:34 to 12:35 p.m., Day and Angelov are shown walking up to the drive-through ATM and interacting with it for a short period of time
- At 12:44 p.m., Halil drives up to the same ATM and Halil is seen interacting with it
- No transactions took place during the time these three men were seen interacting with this ATM
· An FBI special agent (Cristin McCaskill) identified Angelov as the person interacting with the ATM at the Portage Lakes branch by comparing the photograph on his driver’s licence with a still photograph from the surveillance video. On the basis of that comparison, she believes the still photograph to be a photograph of Angelov at the Portage Lakes branch ATM. The extradition judge concluded that this identification was manifestly unreliable. The United States challenges this conclusion on appeal.
(iii) ATM skimming devices
· On May 3, a criminal investigator with FirstMerit retrieved an ATM skimming device affixed by double-sided tape to the ATM at the Montrose branch.
· Another FirstMerit employee discovered an ATM skimming device in the ATM at the Fairlawn branch.
· A third ATM skimming device, similar in appearance to the two devices seized from the Montrose and Fairlawn branches, was found in a search of the Ford Focus.
· Also found in the search was a plastic Home Depot bag containing three rolls of exterior mounting tape and a receipt for the purchase of two black Sharpie markers, one roll of masking tape, and three rolls of exterior mounting tape.
· McCaskill will testify that an ATM skimming device, such as those seized in the investigation, is an instrument that can be used for copying credit card data and account data, including data from an ATM. The device looks like and fits over the ATM’s legitimate card reader.
· Miniature cameras were used to record the PINs entered by bank customers at the ATMs where skimming devices had been installed.
(b) The extradition judge’s reasons for dismissing the application
[19] The extradition judge gave thorough reasons for her decision. And she held that much of the evidence supported committal. At para. 36 of her decision, she summarized the evidence that supported committal:
Summarizing the evidence in the [record of the case], which is not manifestly unreliable, there is evidence on which a reasonable, properly instructed jury could find the following: Mr. Angelov travelled in the company of his three companions from Canada to the United States, crossing the border on May 2, 2012, at 11:52 a.m., in a white Ford Focus rented by Mr. Day and on which Mr. Halil was named as an additional driver; on May 3, 2012, at some time, Mr. Angelov attended at the FirstMerit Bank Portage Lakes branch, although no transaction took place; on May 3, 2012, at around 4:14 p.m., Mr. Angelov rented and paid for a hotel room in the Radisson Inn; and the white Ford Focus was found in the parking lot of the Radisson Inn.
[20] And at para. 24, she held:
… I am satisfied that there is sufficient evidence in the record of the case that a reasonable, properly instructed jury could find that the ATM skimming devices located in the FirstMerit Bank branches and in the glove compartment of the white Ford Focus are instruments for copying credit card data or forging or falsifying credit cards and that their insertion into the ATMs of the Montrose and Fairlawn bank branches was for those purposes.
[21] Despite this evidence, the extradition judge dismissed the application to extradite Angelov for two reasons. First, she concluded that “the purported identification of Mr. Angelov in the 3:11:05 p.m. Portage Lakes bank branch surveillance video is manifestly unreliable and cannot be considered in determining whether there is sufficient evidence to commit Mr. Angelov” (at para. 29). In support of this conclusion, the extradition judge noted that the still photograph taken from the surveillance video, which McCaskill used to identify Angelov, was not even relied on by the Crown – presumably because of its poor quality.
[22] Second, though the extradition judge accepted that Angelov, together with his three associates, was present at the Portage Lakes ATM, she concluded that “mere presence is not sufficient to be used by a reasonable, properly instructed jury to find that Mr. Angelov had knowing possession of an ATM skimming device or that he participated in any way in the installation or removal of ATM skimming devices on any FirstMerit Bank branch…” (at para. 22).
[23] The reasonableness of these conclusions is at the heart of this appeal. If they are unreasonable, this court is entitled to intervene.
(c) Is the extradition judge’s conclusion that the evidence of identification was manifestly unreliable an unreasonable conclusion?
[24] In determining whether to order committal under s. 29(1)(a) of the Act, the extradition judge must accept that the evidence in the certified record of the case is presumptively reliable: Ferras, at para. 52; see also United States of America v. Anderson, 2007 ONCA 84, 85 O.R. (3d) 380, leave to appeal refused, [2007] S.C.C.A. No. 159, at para. 31.
[25] Still, as the extradition judge in this case recognized, “[a] judge in an extradition hearing is no rubber stamp’” (at para. 5). The extradition judge may engage in a limited weighing of the evidence to determine whether it makes out a case in which a jury could convict. That limited weighing entitles an extradition judge to reject evidence that is manifestly unreliable or defective. As McLachlin C.J. said in Ferras, at para. 54: “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.” Evidence that meets this high threshold of unreliability will rebut the presumption of reliability.
[26] The extradition judge engaged in a limited weighing of the identification evidence and concluded it was too unreliable to be used to commit Angelov for extradition. Angelov submits that she did not err in concluding so. I do not accept his submission.
[27] I do accept that, standing alone, McCaskill’s identification of Angelov from the still photograph of poor quality taken from the surveillance video at the Portage Lakes branch was, as the extradition judge said, “manifestly unreliable”. But that was not the only evidence of identification that McCaskill relied on. The unreliability of the identification evidence in the original record of the case was adequately cured by the evidence in the two supplemental records of the case. Indeed, McCaskill identified Angelov as one of the two men interacting with the ATM at the Portage Lakes branch at 3:11 p.m. on May 3 in two separate ways.
· McCaskill identified Angelov in a locker room photo by comparing the photo of him in the locker room with his photo on his driver’s licence. Then she compared the locker room photo of Angelov with the surveillance video at the Portage Lakes branch.
· McCaskill identified Angelov in a photo from surveillance at the Radisson Inn by comparing this surveillance photo with his photo on his driver’s licence. Then she compared the Radisson Inn photo of Angelov with the surveillance video at the Portage Lakes branch.
[28] The extradition judge refused to give effect to this identification evidence because in referring to the identification of Angelov from the locker room photo, the Radisson Inn photo, and the Portage Lakes branch surveillance video, para. 3 of the second supplemental record of the case stated:
FBI Special Agent Cristin McCaskill is expected to testify that she has watched the surveillance video from the Portage Lakes Branch ATM and that she believes ANGELOV, as he appears in the surveillance video and in conjunction with all of the evidence obtained in this case, is the same individual pictured on the left in the locker room photograph with Halil (Exhibit 2 to the SROC) and pictured on the left in the Radisson Inn surveillance photograph with DAY (Exhibit E to the original Record). [Emphasis added.]
[29] The extradition judge was apparently concerned about the phrase “in conjunction with all of the evidence in this case”. At para. 34 of her reasons, she said:
If Agent McCaskill had seen Mr. Angelov interacting with the Portage Lakes bank branch ATM in the 3:11 p.m. Portage Lakes surveillance video or had seen him in the Montrose bank branch surveillance video, it would have been a simple thing to include her expected testimony to that effect in a further supplemental record of the case… This was not done. As a result, there is no identification of Mr. Angelov as the person who appeared to be interacting with the ATM in the Portage Lakes bank branch surveillance video…
[30] Respectfully, this is a highly technical approach to the assessment of the evidence, an approach that the Supreme Court of Canada said in Ferras is to be avoided. The United States did not have to repeat the evidence contained in the original record of the case. The original record and the two supplemental records constitute the certified record of the case.
[31] The original record states that the surveillance video from the Portage Lakes branch shows two men – Halil, and another man said to be Angelov – interacting with the ATM at 3:11 p.m. on May 3. The supplemental records of the case state that McCaskill has looked at this surveillance video and has compared it with the locker room and Radisson Inn photos of Angelov. On the basis of these comparisons, she believes that Angelov is the other man in the surveillance video. Especially bearing in mind the presumption of the reliability of evidence in the certified record of the case, McCaskill’s identification of Angelov is sufficiently reliable to justify his committal. The extradition judge’s conclusion that the identification of Angelov is manifestly unreliable is itself unreasonable.
(d) Is the extradition judge’s conclusion that Angelov did not have possession of a skimming device or knowledge of its purpose an unreasonable conclusion?
[32] The extradition judge accepted that Angelov was at the Portage Lakes ATM on May 3 and that the skimming devices seized during the investigation were instruments of fraud. But she refused to draw the inference that Angelov had possession of these instruments and knew of their fraudulent purpose or that he participated in installing or removing any of them from a FirstMerit ATM. Angelov submits that her refusal to draw this inference was reasonable. In support of this submission, he points to the use throughout the record of the case of the vague verb “interacting”. Without more, Angelov contends it could plausibly mean an innocent attendance at an ATM.
[33] Perhaps the United States could have chosen a better word than “interacting”. Even so, and even assuming one could plausibly infer Angelov alone among the four men who drove to Akron was not there to engage in wrongdoing, that inference is not available to the extradition judge. She herself recognized, at para. 10 of her reasons:
Where the evidence is capable of supporting more than one reasonable inference, the extradition judge must prefer the inference that supports the position of the extradition partner.
[34] Although the extradition judge accepted this principle, she did not apply it. From all the circumstantial evidence in this case, it can reasonably be inferred that Angelov and his three associates drove to Ohio to carry out a fraudulent scheme of installing skimming devices on FirstMerit ATMs to steal credit card information from the bank’s customers. And it can also reasonably be inferred that, together with his associates, Angelov had these skimming devices in his possession and knew of their fraudulent purpose.
[35] From the evidence that Angelov and Halil were briefly “interacting” with the Portage Lakes ATM in the afternoon of May 3, it can reasonably be inferred that they were removing, and therefore had in their possession, the skimming device installed by Day and Kharraz four hours earlier. It can also reasonably be inferred that this skimming device was the one later seized from the Ford Focus and that it was used to steal credit card data from customers of the bank. The reasonableness of these inferences is supported by the following evidence:
· No business transactions took place when Day and Kharraz and then Angelov and Halil “interacted” with the Portage Lakes ATM on May 3.
· The Portage Lakes ATM was the only machine Angelov and his associates returned to later in the day and “interacted” with again.
· No skimming device was found at the Portage Lakes ATM. Skimming devices were, however, seized from the ATMs at the Montrose and Fairlawn branches.
· The skimming devices seized from the ATMs at the Montrose and Fairlawn branches were similar in appearance to the device seized from the Ford Focus.
[36] Thus, on all the evidence, one can reasonably infer that Angelov had possession of at least one skimming device, that he knew of its fraudulent purpose, and that he participated with his three associates in a scheme to steal credit card data, especially the PINs, of the bank’s customers. The extradition judge’s conclusion to the contrary was unreasonable.
D. Conclusion
[37] The extradition judge’s conclusion that the evidence and the record of the case did not support committal was unreasonable. I would allow the appeal, set aside the discharge granted by the extradition judge, and order that Simo Angelov be committed for surrender to the United States.
Released: September 30, 2015 (“J.L.”)
“John Laskin J.A.”
“I agree. K. Feldman J.A.”
“I agree. Janet Simmons J.A.”