Extradition: identification of the sought person may be inferred from circumstantial evidence
I. Introduction
[1] The United Kingdom seeks the extradition of X to stand trial for allegedly physically and/or sexually assaulting 17 minors in Scotland between 1965 and 1972. At that time X was a teacher at boarding schools operated by the De La Salle Order.
[2] On October 23, 2024, Scotland certified the Record of the Case (ROC) in this matter.
[3] On November 25, 2024, the Minister of Justice issued an Authority to Proceed (ATP) under s 15 of the Extradition Act, SC 1999 C 18. The ATP provides X is sought for prosecution of offences corresponding to ss 266 and 151 of the Criminal Code of Canada, RSC 1985, c C-46.
[4] X currently resides in Alberta. The Court must determine whether X should be committed for extradition.
II. Law
[5] Extradition Act s 24 authorizes a superior court judge to hold an extradition hearing upon receipt of an ATP from the Attorney General of Canada.
[6] Extradition Act s 29(a) requires the Extradition Court to commit a person sought for prosecution into custody if there is evidence admissible under the Extradition Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the ATP, and the Extradition Court is satisfied the person before them is the person sought by the extradition partner.
[7] The Extradition Court must assess the evidence to determine whether there is sufficient evidence to justify committal for trial on the Canadian offences described in the ATP (assault contrary to Criminal Code s 266 and sexual interference contrary to Criminal Code s 151). The procedures outlined in Criminal Code Part XVIII apply to the hearing with any modifications that the circumstances require: Extradition Act s 24(2).
[8] The Extradition Court’s role is to determine whether there is a prima facie case of a Canadian crime, not to become embroiled in questions about possible defences or the likelihood of conviction. Extradition hearings are not trials. They are intended to be expeditious procedures to determine whether a trial should be held: MM v United States of America, 2015 SCC 62 at para 38. It is not for the Extradition Court or the Minister to evaluate a foreign state’s decision to prosecute an accused for a given offence or to assess the sufficiency of evidence against the elements of the foreign offence: Canada (Justice) v Fischbacher, 2009 SCC 46 at para 52.
[9] The certified evidence from the requesting state is presumptively reliable: United States of America v Ferras, 2006 SCC 33 at paras 52–56. That presumption may only be rebutted by evidence showing fundamental inadequacies or frailties in the material upon which the requesting state relies: MM at para 72.
[10] An Extradition Court does not evaluate the relative strength of the case put forward by the requesting state. An Extradition Court is only justified in refusing committal where the evidence is so defective or appears so unreliable it would be dangerous or unsafe to act on it: MM at para 63. An Extradition Court does not decide whether a witness is credible or their evidence is reliable beyond determining whether the evidence is so defective or so unreliable that it should be given no weight: MM at para 71.
III. The Allegations
[11] The allegations stem from incidents at two boarding schools in Scotland operated by the De La Salle Order (School A and School B). The ROC contains allegations against “Brother X” from 17 complainants (C1–C17), summarized as follows:
C1: Attended School A aged 9 from 1963 for about 18 months. Alleges Brother X touched his penis on one occasion at night while on duty, reaching under the bed sheets and fondling him for about 30 seconds. Also witnessed Brother X assault other students daily.
C2: Attended School A between 1963 and 1970, aged 10–15. Describes Brother X as “violent.” Alleges Brother X anally raped him weekly when C2 was between 11 and 13, always at night and in the same manner: Brother X would cover C2’s mouth, remove him from his bed, bring him to a separate room, shut the door, remove C2’s clothing, touch his penis, and penetrate his mouth and anus. Also witnessed Brother X take other boys from their beds at night. Alleges multiple incidents of physical assault including punching, striking, and on one occasion deliberately breaking another student’s ankle by standing on it.
C3: Attended School A between 1964 and 1968, aged 10–13. Alleges Brother X threw a tin of food at his head, striking his nose causing bleeding and leaving a permanent mark.
C4: Attended School A between 1964 and 1967. Alleges Brother X punched him in the stomach, causing pain for several days.
C5: Attended School A from late 1964 to 1967, from age 9. Alleges Brother X repeatedly hit him full force, punching, kicking, slapping, and dragging him by the hair.
C6: Attended School A between 1964 and 1970, aged 8–13. Describes physical abuse as so frequent it “became normal.” Alleges Brother X assaulted him many times; on one occasion grabbed his wrist and bent his hand back, breaking it and requiring hospital treatment.
C7: Attended School A between 1965 and 1968, aged 9–12. Describes Brother X as a bully. Alleges repeated punching and slapping of his head; on one occasion Brother X pushed his face against a wall, breaking his teeth. Also alleges two occasions of anal penetration while Brother X was ostensibly inspecting a bruise on his back, and regular handling of his genitals over his nightshirt during bed-wetting checks.
C8: Attended School A between 1965 and 1968, aged 9–13. Alleges Brother X slapped his head causing it to hit a wall. Witnessed assaults on other students.
C9: Attended School A between 1965 and 1969, aged 8–12. Alleges Brother X punched students full force in the gym as they tried to run past him, causing them to fall.
C10: Attended School A between 1965/66 and 1967, aged 10–11. Alleges Brother X repeatedly hit him and other students on the head with a blackboard duster or cane, threw dusters, and kicked students.
C11: Attended School A between 1966 and 1968, aged 11–13. Alleges Brother X punched him in the body on two occasions and witnessed further assaults on other students. Also alleges Brother X repeatedly watched him and other students shower while masturbating, compelled him to bend over, rubbed his buttocks with cream, and penetrated his anus with fingers, body parts, and objects.
C12: Attended School A between 1967 and 1970, aged 11–15. Alleges daily hitting on body, chest, and back leaving bruises. Witnessed Brother X assault other students every day.
C13: Attended School A for 18 months between 1967 and 1970, from age 9. Alleges repeated slapping and kicking. Also witnessed another De La Salle Brother strike him while Brother X watched.
C14: Attended School A between 1968 and 1969, from age 13. Alleges multiple serious assaults: being hit with a bucket and mop, head slammed against a wall, neck compressed with a leather strap causing bruising and swelling, struck in the head with a cricket bat. Witnessed Brother X assault C15 (his younger brother) and other students. Also witnessed Brother X’s regular behaviour towards younger boys: watching them naked, touching their buttocks while they showered, roughly rubbing their genitals while drying them, and pressing his groin against them while they sat on his lap.
C15: Attended School A between 1968 and 1969, from age 11. Alleges Brother X regularly forced him to sit on his knee, cuddling him and rubbing stubble against his chin and neck. Alleges one serious assault causing a nosebleed, permanent ear ringing, and a facial lump. Also alleges being stabbed in the stomach with a sharpened pencil and a screwdriver, the latter leaving a scar, and being struck on the head with a thrown apple.
C16: Attended School A between 1968 and 1971. Alleges regular punching, hitting, and slapping to the body and head, sometimes to the point of being winded or knocked to the ground. Witnessed Brother X masturbate while watching students shower. Alleges Brother X compelled students to carry soiled underwear on a broom around the dormitory while encouraging others to humiliate them.
C17: Attended School B between 1970 and 1972. Alleges one incident of punching to the body and face. Witnessed Brother X assault other students with a table tennis bat and a leather belt. Alleges Brother X entered the shower naked, embraced C17, rubbed his genitals with soap, and penetrated his anus with his penis.
[12] All complainants identified “Brother X” as a De La Salle Brother, teacher, and House Master at School A or School B. None have seen Brother X since their school days, and none identified X as Brother X in their complaints. Five said they would recognise Brother X if they saw him. In November 2023, Scottish authorities obtained two photos from a regional website showing a person believed to be X. Those photos were shown to C14, who identified the older male in both as Brother X.
[13] A statement was obtained from W1, School A’s Deputy Head and De La Salle Brother who worked at School A from 1956 to 1967, including alongside X between 1966 and 1968. W1 confirmed X was a teacher known at School A as “Brother X,” and that X left the De La Salle Order in 1972 and moved to Canada.
[14] Physical descriptions of Brother X given by complainants are broadly consistent: white male, dark/black hair, tall (approximately 5’8″–6’2″), medium to athletic build, clean shaven, no glasses, well-dressed, described by several as having an “Italian look” and a British (non-Scottish) accent.
[15] Official records confirm X was employed at School A from 1966/67 to 1970/71 and at School B from 1971/72 to 1972/73, ending 31 August 1972. X has been receiving occupational pensions since the late 1990s at his current address in Alberta.
[16] The De La Salle Order’s internal records show X joined the Order in the mid-1950s, began teaching at School A in September 1965, and at School B in September 1970.
IV. Analysis
A. Admissibility of X’s Affidavit
[17] X sought to tender an Affidavit containing the following relevant information:
He attended University Y for the 1969/1970 school year full-time (three 10-week terms, October 1969 to mid-July 1970), receiving a diploma dated July 19, 1970. University Y was approximately seven hours from School A. This contradicts official records showing continuous employment at School A from 1966/67 to 1970/71.
His memory has faded given the passage of time. He does not know the identity of the complainants and cannot recall whether another “Brother X” worked at the schools.
An article by journalist Z (February 2025) suggests investigators had believed the perpetrator was deceased.
He strongly denies the allegations.
[18] The Defence conceded that information about X’s current residence, employment history in Canada, family, and health were not relevant. It sought to adduce the University Y information, the diploma, and the journalist Z article as evidence that the ROC was manifestly unreliable.
[19] The Crown opposed admissibility, arguing the proffered evidence went to alibi and credibility — matters for trial, not extradition — and that the journalist Z article constituted triple hearsay with no indicia of reliability.
The Law [20–25]: The person sought may adduce evidence if relevant and reliable, and only if realistically capable of showing that evidence essential to committal is so unreliable or defective it should be disregarded: MM at paras 77–78. Evidence inviting credibility assessments, establishing competing inferences, or raising defences is generally not admissible at this stage: MM at paras 82–84.
Decision on the journalist Z article [36]: Inadmissible — no sufficient indicia of reliability. Even if admitted, it raises only competing inferences, which are matters for trial.
Decision on University Y evidence [38]: The diploma and accompanying letter are reliable. However, the evidence is not relevant to the committal test. X’s attendance at University Y for one academic year does not undermine the evidence that he was a De La Salle Brother and teacher at the schools during the relevant period. Any discrepancies in employment records are matters of potential alibi or credibility for trial. All inferences fall in favour of the Crown at this stage.
B. Do the Allegations Establish Offences under Canadian Law?
[27–31] The Court reviewed each complainant’s evidence individually.
Assault (Criminal Code s 266): Established with respect to all 17 complainants (C1–C17), based on direct allegations of physical violence or witnessed assaults.
Sexual interference (Criminal Code s 151): Established with respect to C1, C2, C7, C11, C14, C15, and C17, based on touching of a sexual nature of minors under 16.
C. Identification
[32–38] No complainant identified X by name as Brother X. The Defence argued the ROC was insufficient to link X to the perpetrator, pointing to: the “one-man photo line-up” shown to C14; the University Y alibi; possible existence of another “Brother X” at the schools; and the journalist Z article suggesting investigators had believed the perpetrator was deceased.
The Court found sufficient circumstantial evidence to support the inference that X is Brother X:
X was a De La Salle Brother and teacher at both schools during the relevant period
Official employment records and Order records confirm his presence at School A from 1965 and School B from 1970
W1 confirmed X was known as “Brother X”
Physical descriptions given by complainants are consistent with W1’s description of X
C14’s photo identification, while not conclusive alone, is stronger than in comparable cases (Walker #1; Brahimi) given the complainants’ prolonged daily contact with Brother X
Gaps in the evidence (e.g., whether another “Brother X” existed) raise competing inferences — matters for trial, not extradition. All inferences fall in favour of the Crown at this stage.
V. Conclusion
[39–43] The Crown established a prima facie case that X engaged in conduct constituting assault (Criminal Code s 266) and sexual interference (Criminal Code s 151). There is sufficient evidence upon which a reasonably instructed jury could infer X is the man the complainants called “Brother X.”
X is committed into custody to await the Minister of Justice’s determination on surrender to the United Kingdom.
X has the right to appeal the committal order and apply for judicial interim release within 30 days.
The Affidavit is not made a full exhibit, as the Defence did not demonstrate it contained reliable and relevant evidence capable of manifestly undermining the ROC.