In a rare decision denying a U.S. extradition request, a B.C. Supreme Court judge declined to send a man accused of being part of the "Silk Road" online drug bazaar to America to stand trial.
James Ellingson is accused in the U.S. of selling drugs, including methamphetamine, heroin, cocaine, LSD, MDMA and marijuana, on the Silk Road platform in exchange for Bitcoin between 2011 and 2013.
Silk Road was shut down in 2013 after the FBI arrested its founder, Ross Ulbricht, in San Francisco. A U.S. federal judge sentenced Ulbricht to life in prison in 2015.
In a decision released Wednesday (June 11), B.C. Supreme Court Justice Lisa Warren found there was insufficient evidence that Ellingson was connected to drug trafficking.
Several legal experts ronaldomanosa spoke to described it as "very unusual" for a Canadian judge to decline to commit a person for extradition to a country with which Canada has an extradition agreement in place.
"It just doesn't happen very often," said Tony Paisana, a University of British Columbia law professor and criminal attorney who has also defended high-profile extradition cases. "It's such a low standard to reach committal."
Ellingson was allegedly operating Silk Road accounts under three usernames, "MarijuanaIsMyMuse," "Redandwhite" and "Lucydrop." The extradition evidence is primarily focused on the "MarijuanaIsMyMuse" account, which investigators traced to Bitcoin accounts linked to Ellingson and Silk Road.
Warren found there is enough evidence to tie two Bitcoin accounts and the three Silk Road accounts to Ellingson, and evidence to support the allegations that the accounts were used for illicit drug transactions. But she found U.S. authorities presented no real evidence that Ellingson was controlling those accounts.
Some of the evidence linked to the "Redandwhite" account, which was referred to in the evidence but was not being used as the basis for the extradition request, was so tenuous that the judge immediately discounted it. This includes an allegation that Ellingson undertook an "elaborate ruse" to convince Ulbricht to pay him large amounts of money to kill fictitious persons — "who, being fictitious, were never actually murdered."
Warren ordered Ellingson discharged. The Canadian federal Department of Justice, which handles the prosecution role in these cases on behalf of foreign governments, can appeal to the B.C. Court of Appeals.
A Department of Justice spokesperson said its lawyers are reviewing the decision and have not yet decided whether to appeal. The decision was made on May 30, and the department has 30 days from that day to file the appeal.
Ellingson's lawyer, Marilyn Sandford, told ronaldomanosa that he does not wish to comment on the decision.
Winning 'an uphill battle'
Robert Currie, a law professor at Dalhousie University in Halifax, N.S. and an expert in transnational criminal law, said it is rare for a Canadian court to decline extradition requests. To be successful, the applicant country does not need to provide actual evidence, just a summary that is taken on face value.
Basically, the judge must decide that if what the country applying for extradition says is true, it would constitute a crime under Canadian law.
In this case, Currie said the Americans weren't specific enough about connecting Ellingson to the actual drug trafficking.
"You might even say there's a smell here, but we don't extradite people based on a smell," he said.
Justice Warren goes so far as to lay out all the things that she would have needed to see in the application to rule in favour of extradition, such as copies of specific emails.
"The judge almost draws a map for 'here's what a successful application would look like,'" Currie said.
One of the difficulties for the American investigators in this case is proving connections to crimes perpetrated without a paper trail using Bitcoin and anonymous internet accounts.
"The dark web stuff and these anonymous Bitcoin transactions are really challenging for the police and for investigators," Currie said. He pointed out that the special investigator in the case has over a decade of experience with these types of investigations.
This is why Bitcoin has become the currency of choice for money launderers, transnational gangs and terrorists the world over, he said.
Both Paisana and Currie applauded the judge's efforts in the case. Canada's extradition rules can be criticized at times for being too lax, but this judge did her due diligence.
"It's a really meticulous approach to the evidence by the judge, and I think that's a good thing, because we're talking about the liberty of an individual here," Currie said.
Gary Botting, another B.C. lawyer who defended extradition cases for about 30 years, said he could think of only about a dozen that were similarly discharged. Most often, his goal was to delay as much as possible.
"It was usually an uphill battle," he said.
He speculated that changes may come due to the re-election of U.S. President Donald Trump.
"I think judges are generally thinking twice before they rubber stamp cases like that," he said.
