United States of America v. Sharif, 2011 ABQB 62

Court of Queen ’ s Bench of Alberta Citation: United States of America v. Sharif, 2011 ABQB 62 Date: 20110207 Docket: 110076031X1 Registry: Edmonton Between: United States of America Respondent - and - Sayfildin Tahir Sharif (also known as Faruq Khalil Muhammad ‘ Isa, Faruk Khalil Muhammad ‘ Isa, and Tahir Sharif Sayfildin) Applicant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F.

Macklin _______________________________________________________ Introduction [ 1 ] On January 19, 2011 Sayfildin Tahir Sharif was arrested pursuant to a Provisional Arrest Warrant issued on January 18, 2011. A warrant for his arrest had previously been issued on January 14, 2011 by the U.S. District Court in Brooklyn, New York on the offences of conspiracy to murder U.S. nationals and providing material support for terrorists. The United States of America has requested Mr. Sharif’s arrest and will be seeking his extradition on the charges.

[ 2 ] Mr. Sharif has applied for release on bail pending the extradition hearing. Counsel for the Attorney General of Canada appeared in opposition to the application on behalf of the United States of America. Judicial Interim Release Provisions and Onus [ 3 ] The Extradition Act , S.C. 1999, c. 18 provides in s. 19 that the Criminal Code provisions relating to judicial interim release apply by analogy to extraditions. The three grounds to consider in determining whether the detention of an individual arrested under the Extradition Act are therefore set out in s. 515(10) of the Criminal Code .

Pursuant to s. 515(6)(a)(iii) of the Criminal Code , an accused who is charged with a terrorism offence has the onus of showing cause why his detention in custody is not justified. [ 4 ] The warrant for the arrest of Mr. Sharif that was issued on January 14, 2011 by the U.S. District Court in New York relates to offences of conspiracy to murder U.S. nationals and providing material support for terrorists. Both are terrorism offences. Accordingly, and pursuant to s. 515(6) of the Criminal Code , Mr. Sharif has the onus of showing cause why his detention in custody is not justified. To do so, Mr.

Sharif must show that his detention is not justified on any of the three grounds set out in s. 515(10) . That is, he must show that: (

a) his detention is not necessary to ensure his attendance in Court; (

b) his detention is not necessary for the protection or the safety of the public; (

c) his detention is not necessary to maintain confidence in the administration of justice, having regard to all the circumstances. Background Evidence [ 5 ] In opposing Mr. Sharif’s application for release, the Respondent relies upon materials submitted in support of its application for the warrant for the provisional arrest of Mr. Sharif. Those materials were contained in, and attached to, the affidavit of RCMP Constable Ken Mah. The Respondent also relies upon a letter dated February 1, 2011 provided by the U.S. Department of Justice. [ 6 ] The Respondent says that this material confirms that Mr.

Sharif is a member of a Tunisian Foreign Fighter Facilitation Network that transports Jihadist fighters from Tunisia to Iraq to conduct suicide bomb attacks against American and coalition forces in Iraq. The material refers to two suicide bomb attacks in Iraq carried out by the Facilitation Network. The first suicide bomb attack was undertaken on or about March 31, 2009 by Tunisian suicide bombers who had travelled to Iraq with the assistance of the Facilitation Network. This attack left seven people dead and seventeen others injured.

The second attack, which occurred on or about April 10, 2009, killed five American soldiers and injured several others. It too was committed by a suicide bomber who had travelled to Iraq from Tunisia with the assistance of the Facilitation Network. [ 7 ] The material further evidences telephone conversations and computer exchanges between Mr. Sharif and individuals believed to be suicide bombers and between Mr. Sharif and other members of the Facilitation Network. According to the Respondent, translations of the communications, which include interpreted alleged code words, confirm Mr.

Sharif’s involvement with the Facilitation Network and his knowledge of, and familiarity with, the suicide bombers. The intercepted communications also reflect Mr. Sharif’s attempt to procure a telescopic rifle with a silencer. [ 8 ] The Respondent points to portions of the intercepted communications as evidencing Mr. Sharif’s anger at the American invasion of Iraq and his desire to take revenge on the United States. It is suggested that they also indicate a willingness on the part of Mr. Sharif to martyr himself and commit attacks in North America. [ 9 ] In support of his application, Mr.

Sharif also refers to the materials submitted by the Respondent but for the opposite

purpose. He emphasizes the paucity of evidence in the materials that Mr. Sharif has been party to either of the offences charged. Mr. Sharif also relies upon the testimony of his common-law spouse, Ms. Cara Rain, who testified at the bail hearing. Analysis [ 10 ] It must first be recognized that Mr. Sharif does benefit from the presumption that he is innocent until proven guilty. He has not been convicted of any offence. [ 11 ] I will review the evidence as it relates to the three grounds set out in s. 515(10) of the Criminal Code . a. Is Mr.

Sharif’s detention necessary to ensure his attendance in Court? [ 12 ] Mr. Sharif was born in Iraq and is now 38 years old. He came to Canada in 1993 as a refugee and became a Canadian citizen in 1996. He has no criminal record. He has gone back to Iraq on three occasions to visit. Since approximately October 2008, Mr. Sharif has been living in a common-law relationship with Ms. Rain. Ms. Rain has four children and she converted to Islam in or around May 2010. Mr. Sharif has been employed as a stuccoer but, as this is seasonal work, he has been unemployed and was unemployed on the date of his arrest. [ 13 ] Mr.

Sharif points to the fact that he has always returned to Canada from visits to Iraq, and to his relationship with Ms. Rain, as evidence of his stability in the community and likelihood of remaining here if released. He has suggested bail conditions for the Court to consider that, he says, will ensure his attendance in Court in the event that the Court is prepared to grant his release. Mr.

Sharif has suggested that entering into a recognizance for the sum of $10,000 with no cash deposit together with very strict bail conditions amounting to house arrest would be sufficient to ensure his attendance in Court if he is released. [ 14 ] Ms. Rain testified. She is employed at the Real Canadian Superstore and supports herself and her four children. In her evidence in chief, Ms. Rain confirmed that she has known Mr. Sharif since August 2008 and they have lived together since approximately October 2008. She described him as loving, affectionate, supportive, and stable. In her words, he has grounded her.

She said that she did not think he is the person he is accused of being. [ 15 ] A different and more dysfunctional picture was painted in the cross-examination of Ms. Rain. She confirmed that she had planned to move in January 2011 to a new apartment because she and Mr. Sharif were not getting along. They had always had problems because of cultural issues though they had remained together. She also indicated that another individual (“Hussein”) proposed marriage to her in November or December of 2010, though she did not tell this to Mr. Sharif. [ 16 ] Ms.

Rain also stated that at one time, she discussed marriage with an individual known as Ali. She was introduced to Ali by Mr. Sharif, and the purpose for the proposed marriage was to help Ali stay in Canada. There was some discussion about her being paid $15,000 to $20,000 to perform this “favour”. She ultimately decided not to do so, she said, because it was “wrong”. [ 17 ] Ms. Rain testified that Mr. Sharif had also made plans to move but she was not sure of his destination. She assumed he was going to Toronto because she understood that he had family there.

His bags were packed on January 19, 2011 when the RCMP showed up to arrest him. [ 18 ] Ms. Rain testified that if Mr. Sharif was released, she would notify the authorities if he committed any breach of the bail conditions. She also stated that she would be back at work within a day or two which would necessarily mean that she would be away from the home and unable to monitor Mr. Sharif for considerable periods of time. Further, there is clear evidence of an intention by Mr. Sharif, as at the date of his arrest, to leave both Ms. Rain and the City of Edmonton.

Other than his now precarious and unstable relationship with Ms. Rain, there is no evidence of any other ties to, or support from, the community. He has no job nor has there been any evidence of employers or past employers prepared to hire him.

[ 19 ] While Ms. Rain indicated that Mr. Sharif provided her with stability, she also stated that he would not marry her and, as indicated earlier, he in fact tried to get her to marry a third party seemingly for the purpose of deceiving immigration authorities. [ 20 ] Notably, Ms. Rain also testified that Mr. Sharif essentially dictated her life to her. He directed her where to go, when and with whom. The level of control Ms. Rain suggests that Mr. Sharif attempts to exert over her certainly belies any belief that she might have some measure of control over him in a house arrest arrangement. [ 21 ] Mr.

Sharif has apparently been using the name Sayfildin Tahir Sharif for a considerable period of time, and perhaps since he was granted citizenship in 1996. However, there has been no satisfactory explanation provided as to why he is also known by three other names, two of which are wholly different from the name he currently uses. In the materials provided by the United States, he is also referred to as Faruq Khalil Muhammad ‘Isa and Faruk Khalil Muhammad ‘Isa. [ 22 ] I would also note that some of the evidence tendered by the Respondent does suggest that Mr. Sharif wishes to return to Iraq.

As pointed out by counsel for Mr. Sharif, this evidence can be interpreted in different ways but at the very least, there is some evidence that he does wish to return including a request of his mother to obtain Iraqi identification documents in the name he now uses. While this may show nothing more than a desire to continue using his current name and to have proper identification documents with that name, it may also indicate a desire to return to Iraq with new identification. [ 23 ] Further, there is also a comment made by Mr.

Sharif to Facilitator 3 on May 16, 2009 during discussions about the arrest of another facilitator. In that discussion, Mr. Sharif expresses concern that if the captured facilitator talks to authorities, then that person would have told them about him as well. He then directs the facilitator to “erase everything that you have written to me or anyone else...” (Affidavit of Ken Mah, Exhibit A, p. 10). These comments by Mr. Sharif suggest an intent by him of avoiding detection. [ 24 ] Mr.

Sharif potentially faces very serious charges in the United States and a severe penalty if convicted, which would likely provide motivation for him to flee the jurisdiction pending his extradition hearing. [ 25 ] Mr. Sharif submits that the case against him is not strong which arguably would decrease his motivation to avoid his extradition hearing. It is difficult to assess the strength of the case against Mr. Sharif for a number of reasons, the most obvious being that the communications adduced in evidence before this Court are ostensibly in code. In one conversation, Mr.

Sharif told “Individual 3" to try to avoid using names, for example when he wants to name “the brothers” he says “the farmers” because “they plant metal and harvest metal and flesh” (Exh. A, p. 15). Where such explanations are not contained in the communications themselves, it is necessary to draw inferences in order to determine the intended meaning. This hearing does not allow for a fulsome consideration of the strength of the various inferences proposed by the Respondent.

Therefore, I consider the strength of the Crown’s case in relation to the likelihood of his attendance in Court to be a fairly neutral factor in this particular case. I will, however, discuss it in relation to the other grounds. [ 26 ] Finally, it must also be remembered that Canada has signed an extradition treaty with the United States.

While not determinative, in considering an application for judicial interim release pending an extradition hearing by an extradition partner, a Court must be particularly sensitive to the risk of non appearance by the accused in light of Canada’s treaty obligations. [ 27 ] When considering all of the foregoing, it is difficult to believe that Mr. Sharif would be deterred from leaving Edmonton by any order of release I may make to try and ensure his attendance. I believe Mr.

Sharif to be a significant flight risk if released and the conditions he has put forward are wholly inadequate to ensure his attendance in Court. In other words, Mr. Sharif has failed to show cause why his detention is not necessary to ensure his attendance in Court. b. Is Mr. Sharif’s detention necessary for the protection or safety of the public? [ 28 ] The evidence of Mr. Sharif’s contacts with alleged members of the “Facilitation Network” together with the evidence of his attempt to purchase a telescopic rifle with a silencer are not conclusive. However they do amount to some evidence that Mr.

Sharif is capable of undertaking acts that are or would endanger the protection or safety of the public.

[ 29 ] While counsel for Mr. Sharif emphasizes that the contact between Mr. Sharif and individuals involved directly or indirectly in terrorist attacks in Iraq do not establish Mr. Sharif’s participation in, or facilitation of, specific attacks, they do clearly evidence contact and communication between Mr. Sharif and parties who were directly involved. In one conversation, an individual identified as “Fighter 5” refers to orders coming from the company or organization “from where you are” (Affidavit of Ken Mah, Exhibit A, p. 5). Mr.

Sharif later says to Fighter 5 “May God make things easy for you and for us” (Exh. A, p. 6). Again, though perhaps inconclusive, this statement does provide some indication that Mr. Sharif considers himself a member of the company or organization he refers to as “us”. In the same conversation, Mr. Sharif stated that the things that “we are about to do are duty on us” (Exh. A, p. 7). On March 24, 2009 Mr. Sharif had another conversation with Fighter 5 where Fighter 5 told him that “we are committed to a date”. Mr. Sharif’s response was “yes, I know” (Exh. A, p. 7).

These discussions all took place before the terrorist attack of March 31, 2009. [ 30 ] A discussion took place between Mr. Sharif and an individual identified as “Facilitator 3" on January 21, 2010 wherein Mr. Sharif asked him to pass on his name to “the one in charge” (Exh. A, p. 10) and he then indicates that even if he cannot work “over there” he can work “here” and get some business going “to benefit us” (Exh. A, p. 11). This is suggestive of a willingness to work in North America if he cannot work in Iraq and to get some business going for the “company”. Mr.

Sharif then states that he “used to send workers before” implying that he had arranged for terrorists to work in Iraq. He reiterates in the discussion that he can do things like “business work” or “sending workers” and again asks Facilitator 3 to tell the boss “that I am doing my share” (Exh. A, pp. 11, 12). [ 31 ] Again, while all of this evidence is inconclusive, and may ultimately be interpreted differently in a subsequent hearing, it does amount to some evidence of Mr. Sharif’s participation in terrorist operations in Iraq and further suggests that he is prepared to engage in operations in North America.

That is, while the evidence put forward by the Respondent requires the translation of often coded communications, at least one

interpretation of those communications accords with the views of the Respondent. The possibility therefore exists that Mr. Sharif is involved in an organization providing active support and assistance to those involved in terrorist activities. The possibility also exists that Mr. Sharif is prepared to undertake activities on behalf of that organization in North America. These possibilities create risks of indiscriminate danger to the public which cannot be ignored.

While understandably the mere possibility of a risk may not be sufficient to warrant continued detention, the gravity of the potential consequences if this risk materializes would be momentous. [ 32 ] In short, I believe the evidence sufficiently supports the suggestion that Mr. Sharif is both capable of taking, and is prepared to take, action that would endanger the protection or safety of the public. Mr. Sharif has failed to show cause why his detention is not necessary for the protection or safety of the public. c. Is the detention of Mr.

Sharif necessary to maintain confidence in the administration of justice? [ 33 ] This ground requires consideration of four factors: 1. the apparent strength of the prosecution’s case; 2. the gravity of the nature of the offences; 3. the circumstances surrounding its commission; and 4. the potential for a lengthy term of imprisonment. [ 34 ] There is no doubt that the offences with which Mr. Sharif is charged are extremely serious, some of the most serious charges that any individual could face.

Clearly there is the potential for a lengthy term of imprisonment. [ 35 ] When considering the apparent strength of the prosecution’s case in a domestic criminal trial, the Court considers the evidence the Crown anticipates leading at that trial. Because the onus is reversed in this case, Mr. Sharif must establish that weaknesses in the case implicating him in the offences render his detention unnecessary. A bail hearing is not the appropriate forum for determinative findings of fact, nor for a protracted test of the allegations ( R. v. Bagri , 2001 BCCA 273 , R. v. Dong , 2008 ONCJ 32 ).

In this case, identification is not in issue, nor is credibility. As stated above, the strength of the case against Mr. Sharif hinges on inferences

to be drawn from interpreted coded communications. The strength or weaknesses of the inferences to be made are, at this point, neitherreadily apparent nor readily ascertainable. [36] In United States of America v.

Tenenbaum, 2008 ABCA 396 at para. 30, the Court of Appeal commented on the particularnature of extradition proceedings: 30 While I make no definitive determination as to the precise quality and nature of evidence required on a bail application under theExtradition Act, the nature of extradition proceedings and the role of the extradition judge, as distinct from a domestic criminal trial,must inform the inquiry. ...an extradition judge should engage in a limited weighing of evidence at the committal stage... the evidenceneed not convince an extradition judge of the prisoner's guilt but rather whether the evidence is sufficient to commit to trial... [37] In considering the apparent strength of the prosecution’s case in an extradition hearing, the Court hearing the application forjudicial interim release must consider the strength of the prosecution’s case as it relates to the extradition hearing itself.

As noted by theCourt of Appeal, at an extradition hearing, the Court engages only in a limited weighing of the evidence. The Extradition Act provides ins. 29(1) that the extradition judge must order the committal of the person if the requesting state satisfies the judge that: (

a) there is admissible evidence of conduct that, had it occurred in Canada, would justify committal for trial in Canada; and (

b) the person before the Court is the person sought by the extradition partner. [38] The rules of evidence that apply at an extradition hearing are more relaxed than those which would otherwise apply indomestic proceedings in Canada. That is, while evidence admissible under Canadian law is admissible in the extradition hearing, othertypes of evidence are also admissible, including hearsay evidence (United States of America v. Francis, 2010 ABCA 353; United Statesof America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77; and United Mexican States v.

Ortega, 2006 SCC 34, [2006] 2 S.C.R. 120). [39] Accordingly, on an application for bail pending an extradition hearing, I must consider the strength of the prosecution’s casein the context of the relaxed onus of proof the prosecution must meet at the extradition hearing. Further, the apparent strength of its caseat this time does not have to reach the same level of proof necessary to satisfy the onus required of it at the extradition hearing itself. [40] As discussed above, while the translated coded communications may support the possible

interpretations suggested by theRespondent, those possible

interpretations do suggest Mr. Sharif’s involvement in an organization that has actively supported a terroristorganization responsible for the killing of U.S. Nationals in Iraq and the further possibility that he would endeavour to conduct terroristactivities on American soil. [41] I find that when considering the evidence in the context of the extradition process, Mr. Sharif has failed to establish that theprosecution’s case is weak. The extradition partner, the United States of America, has introduced some evidence which, if accepted,would justify a committal for trial in Canada.

That is, there is sufficient evidence which, if accepted, could cause an extradition judge toorder his extradition. [42] There is no doubt that the crimes alleged to have been committed by Mr. Sharif are horrific. In my view, the comments ofProulx J.A. in R. v. Rondeau at p. 480 are also applicable: It appears to me that the more serious the crime, the more the perpetrator’s participation is characterized by planning and thecommission of the most violent acts, the greater the risk for society. [43] The crimes alleged against Mr. Sharif are extremely serious.

If true, they resulted from considerable planning and ongoingsupport. As McLachlin C.J.C. stated in R. v. Hall, 2002 SCC 64 , [2002] 3 S.C.R. 309 at para. 26:

26 ... To allow an accused to be released into the community on bail in the face of a heinous crime and overwhelming evidence may erode the public’s confidence in the administration of justice. Where justice is not seen to be done by the public, confidence in the bail system and, more generally, the entire justice system may falter.

When the public’s confidence has reasonably been called into question, dangers such as public unrest and vigilantism may emerge. [ 44 ] While the evidence adduced thus far in this case cannot be characterized as “overwhelming”, it is in my view sufficient in the extradition context to warrant continued detention to maintain public confidence. [ 45 ] Therefore, I am satisfied that in all of the circumstances of this case, it is essential for Mr. Sharif to be detained in custody in order to ensure that the public maintains confidence in the administration of justice. Mr.

Sharif has not satisfied the onus on him to show why his detention is not necessary in order to maintain confidence in the administration of justice. Conclusion [ 46 ] The onus is on Mr. Sharif to show why his detention in custody is not justified. He has failed to meet that onus and his application for judicial interim release is denied. Heard on the 2 nd day of February 2011. Delivered Orally on the 4 th day of February 2011. Eric F. Macklin J.C.Q.B.A. Appearances: James Shaw for the Respondent Bob H. Aloneissi and Michael Sparks for the Applicant