Canada (Attorney General) v Abdi, 2012 ABQB 17

Court of Queen ’ s Bench of Alberta Citation: Canada (Attorney General) v Abdi, 2012 ABQB 17 Date: 20120109 Docket: 110624582X1 Registry: Edmonton In the Matter of the Extradition Act , c. 18, SC 1999 And in the Matter of an Application by the United States of America For the Extradition of Ahmed Abdulqadir Abdi Between: The Attorney General of Canada Applicant - and - Ahmed Abdulqadir Abdi, also known as Abdi Mohamed Elmi, Ali Abdi Omar, Ahmed Shire Respondent and Person Sought _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________

I. Introduction [ 1 ] The Attorney General of Canada (AGC) seeks an order for the committal of Ahmed Abdi (Abdi) who is wanted for prosecution in relation to the commission of crimes in the United States. The Minister of Justice has issued an Authority to Proceed (ATP) under s 15 of the Extradition Act , SC 1999, c 18 ( Act ), authorizing the AGC to seek an order for the committal for extradition of the Respondent, Abdi.

The ATP provides that the Canadian offence corresponding to the conduct alleged against Abdi is an attempt to commit murder, a crime under s 239 of the Criminal Code constituting extraditable conduct under s 3 of the Act . [ 2 ] The United States government sought the provisional arrest of Abdi to be tried for the offence of attempted first degree murder. The Minister of Justice applied for and obtained from this Court a provisional arrest warrant pursuant to s 12 of the Act . The warrant was issued on May 31, 2011.

The person before the Court and alleged to be Abdi was placed under arrest pursuant to the warrant on June 1, 2011. [ 3 ] Abdi filed but subsequently withdrew a Charter application for exclusion of a statement on the basis of a s 10(

b) breach at the time of his arrest in Canada. II. Test [ 4 ] Pursuant to s 29(1) of the Act , the issues for the Court are whether: - there is evidence admissible under the 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 Court is satisfied that the person before the Court, and alleged to be Abdi, is indeed the person sought by the United States. III.

Evidence [ 5 ] The Supreme Court of Canada decision in United States of America v Ferras ; United States of America v Latty , 2006 SCC 33 , [2006] 2 SCR 77 outlines the two step approach to considering the evidence on an application for committal: 16 This inquiry into the justification for committal raises two evidentiary concerns: the admissibility of evidence, and the evaluation of evidence to determine whether it establishes the case for committal.

Theoretically, these are discrete steps, although in practice the extradition judge may consider them simultaneously. ... 17 In short, the Extradition Act offers two protections to the person whose liberty is at risk: first, admissibility provisions aimed at establishing threshold reliability; and second, a requirement that the judge determine the sufficiency of the evidence to establish the legal requirement for extradition... A. Step 1 - Admissibility of Evidence

A. Step 1 - Admissibility of Evidence [ 6 ] The ATP is filed as Exhibit 1. The evidence before this Court is in the form of a Certification of the Record of the Case for Prosecution and a Certification of First Supplemental Record of the Case for Prosecution (ROC) made by Judith L. Cole, Assistant County Attorney for Hennepin County, Minnesota. Ms. Cole has certified that the evidence itemized in the ROC is available for trial and is sufficient under Minnesota law to justify prosecution.

The ROC is filed as Exhibit 2. [ 7 ] Counsel for Abdi submitted that the ROC was not authenticated and certified as required under Article 10(2) of the Treaty on Extradition between the Government of Canada and the Government of the United States of America ( Treaty ) which he cited as follows: 10(2) The documentary evidence in support of a request for extradition or copies of these documents shall be admitted in evidence in the examination of the request for extradition when, ...in the case of a request emanating from the United States, they are authenticated by an officer of the Department of State of the United States and are certified by the principal diplomatic or consular office of Canada in the United States. [ 8 ]

Article 2 of the Second Protocol Amending the Treaty on Extradition between the Government of Canada and the Government of the United States of America , which entered into force on April 30, 2003, deleted the old Article 10(2) and replaced it with: 10(2) The documentary evidence in support of a request for extradition or copies of these documents shall be admitted in evidence in the examination of the request for extradition when: ... (

b) in the case of a request emanating from the United States for a person who is sought for prosecution, they are certified by a judicial authority or prosecutor who attests that the evidence is available for trial and is sufficient to justify prosecution under the law of the prosecuting jurisdiction...or (

c) they are certified or authenticated in any other manner accepted by the law of the requested State. [ 9 ] Section 33(3) of the Act provides: 33(3) A record of the case may not be admitted unless (

a) in the case of a person sought for the purpose of prosecution, a judicial or prosecuting authority of the extradition partner certifies that the evidence summarized or contained in the record of the case is available for trial and (

i) is sufficient under the law of the extradition partner to justify prosecution, or (ii) was gathered according to the law of the extradition partner... Authentication not required

(4) No authentication of documents is required unless a relevant extradition agreement provides otherwise.

Record of the case and supplements

(5) For the purposes of this section, a record of the case includes any supplement added to it. [10]

Section 32 of the Act provides in part: 32(1) Subject to subsection (2), evidence that would otherwise be admissible under Canadian law shall be admitted as evidence at anextradition hearing. The following shall also be admitted as evidence, even if it would not otherwise be admissible under Canadian law: (

a) the contents of the documents contained in the record of the case certified under subsection 33(3); (

b) the contents of the documents that are submitted in conformity with the terms of an extradition agreement; and (

c) evidence adduced by the person sought for extradition that is relevant to the tests set out in subsection 29(1) if the judgeconsiders it reliable. Exception — Canadian evidence

(2) Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted. [11] I conclude that the evidence contained in the ROC is admissible under s 32(1)(

a) of the Act as it has been certified by aprosecutor as required under s 33(3) and submitted in conformity with the terms of the Treaty. B. Step II - Evaluation of Evidence to Determine Sufficiency to Justify Committal [12] The elements of the offence of attempted murder under s 239 of the Criminal Code are: - an intent to commit the completed offence (mens rea), in this case the specific intent to kill, and - some act more than merely preparatory taken in furtherance of the attempt (actus reus).

See United States of America v Dynar, (SCC), [1997] 2 SCR 462 at para 50; R v Logan, (SCC),[1990] 2 SCR 731. [13] The evidence itemized in the ROC upon which the United States prosecution will ostensibly be based can be brieflysummarized as follows: - Kaisur Nur is expected to testify that on the evening of November 11, 2005, he was in South Minneapolis by the Somali Mall,

located in the area of Elliot Avenue South, when he encountered a male that he knew as Ahmed Shire with whom he had been acquainted with for about a year, although not as friends. He is expected to testify that Ahmed Shire walked up to him, pointed a gun at his head and shot him in the head.

Nur is expected to testify that he was taken to the hospital and suffered brain damage from the shooting and has lost the sight in his right eye; - Bashir Mohamud is expected to testify that he had been acquainted with Abdi (whom he knew as Ahmed Shire) for two years and was with Kaisur Nur at the above noted place and time when he clearly witnessed Abdi (who was with another person whom Bashir Mohamud knew as “ Kentucky ” ) shoot Nur in the head and flee; further, he identified to the police the photograph attached as an exhibit to the ROC as a photograph of the person who shot Nur and whom he knew as Ahmed Shire; - Mohamed Amalle is expected to testify that he was a friend of Nur, and upon exiting the Somali Mall at the relevant time, he saw Nur walking with a male whom he had previously met a couple of times and knew as Ahmed; he observed Ahmed pull out a gun and shoot Nur in the head, and then flee; - Hussein Ahmed is expected to testify that he spoke with Ahmed Shire, an old friend from school, at the above noted place and time and asked him for a ride home; Shire was with a person whom Hussein Ahmed knew as “ Kentucky ” when a group including Nur approached, and he saw Shire turn and shoot Nur in the forehead and then flee; - Liban Ismail Mohamed is expected to testify that his street name is “ Kentucky ” .

Abdi was his best friend and he had known him for at least three years; Abdi and Nur got into a fight at the above mentioned time and place, Liban Mohamed ran from the scene and heard a gunshot, ran back and saw Nur on the ground, ran again and ran into Abdi who stated “ God forgive me.

God forgive me ” ; further he identified to the police the person in the photograph attached as an exhibit as Abdi. [ 14 ] The Supreme Court in Ferras at paras 25 and 40 emphasized that the right to a hearing before a judge under the Act entails, at a minimum, a meaningful judicial assessment of the case on the basis of the evidence and the law in order to be satisfied that they justify committal before ordering extradition. The judge must not act as a rubber stamp.

However, the judge ’ s role on a committal hearing is limited: the judge should decline to order extradition only where the evidence is so manifestly unreliable that it would be unsafe to rest a verdict upon it. The Supreme Court discussed the extradition judge ’ s role with respect to the sufficiency of the evidence at the hearing: 54 Challenging the justification for committal may involve adducing evidence or making arguments on whether the evidence could be believed by a reasonable jury. ...an extradition judge may engage in a limited weighing of evidence to determine whether there is a plausible case.

The ultimate assessment of reliability is still left for the trial ... However, the extradition judge looks at the whole of the evidence presented at the extradition hearing and determines whether it discloses a case on which a jury could convict.

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. [ 15 ] Counsel for Abdi urged the Court to exercise its discretion to decline an order for committal of the evidence due to the frailty of the eyewitness evidence and the photographic lineup evidence itemized in the ROC.

Counsel cited in particular Ferras at para 41 and United States of America v Graham , 2007 BCCA 345 , 243 BCAC 248 starting at para 25 regarding the discretion which resides in the extradition judge. [ 16 ] Counsel for Abdi relied on United States of America v Walker , 2008 BCCA 55 , 251 BCAC 214 at para 30 . In that case, there was a single eyewitness, the witness and the accused were not previously known to each other, their encounter was brief, and the circumstances were traumatic for the witness.

The time of day, lighting conditions, and the duration of the encounter were not disclosed, nor were there details regarding the photo montage from which the accused was identified by the witness. [ 17 ] Counsel also relied on United States of America v Anderson , 2007 ONCA 84 , 85 OR (3d) 380 , leave denied [2007] SCCA No 159.

In that case the Court, in dismissing an appeal from an acquittal order, noted that the co-conspirator who was expected to provide evidence was seeking a benefit through cooperation with the authorities, and there were some inconsistencies between his sworn statement and his grand jury testimony. However, the Court also stated that the mere fact that evidence has potential significant weaknesses, or comes from sources that are less than pristine, cannot justify totally discounting that evidence when determining whether the requesting state has met the test for extradition.

Having regard to the entirety of the sworn statement and grand jury testimony, the

Court found nothing that could justify characterizing his statement and evidence as so unreliable as to warrant the exclusion of the statement and testimony from consideration when determining the issue of committal for extradition (para 34). [ 18 ] Both of these cases are clearly distinguishable from the case before this Court. The ROC summarizes anticipated evidence of five witnesses who knew the shooter; one of them claims to have been the shooter ’ s best friend. There is no suggestion that any of them will gain a benefit from cooperating with the authorities.

The evidence is consistent as to date, time and location of the shooting. [ 19 ] The Court must determine whether there is some evidence of each element of the Canadian offence that parallels the offence for which extradition is sought, and that such evidence would be sufficient to permit a reasonable jury, properly instructed, to convict on the parallel Canadian offence. I find that the ROC outlines some evidence upon which a jury properly instructed could find that: the shooter had a specific intent to kill Nur, and that he shot Nur in the head at close range, thereby engaging in

an act more than merely preparatory taken in furtherance of the attempt to kill. Having considered all of the admissible evidence, I conclude that the ROC outlines evidence of conduct that would justify committal for trial in Canada on a charge under s 239 of the Criminal Code . IV. Identification [ 20 ] The Act provides: Evidence of identity 37. The following are evidence that the person before the court is the person referred to in the order of arrest, the document that records the conviction or any other document that is presented to support the request: (

a) the fact that the name of the person before the court is similar to the name that is in the documents submitted by the extradition partner; and (

b) the fact that the physical characteristics of the person before the court are similar to those evidenced in a photograph, fingerprint or other description of the person. [ 21 ] In addition to the above evidence insofar as it relates to the identity of Nur ’ s shooter, the ROC itemizes identification evidence.

Three photos are exhibited to the ROC: 1) photo of Ahmed Abdi obtained by the police from the Minnesota Driver and Vehicle Services website (photo identified by Bashir Mohamud as the shooter); 2) photo of Abdi obtained by police from the Nebraska Department of Vehicle Services website (photo identified by Liban Mohamed as the shooter); and 3) photo obtained by the Hennepin County Sheriff ’ s office, being a copy of Abdi ’ s Minnesota identification card (color photo of photo identified by Bashir Mohamud).

[ 22 ] Further, the ROC states: - Sgt.

Kelvin Pulphus is expected to testify that he was assigned to investigate the shooting, interviewed Bashir Mohamud and Liban Mohamed and showed each of them photographic lineups containing the photographs attached as exhibits; - Tim Chmielewski, Deputy Sheriff of Hennepin County, Minnesota, is available to testify that the Nebraska Jail Information form indicates that an individual by the name of Ahmed Abdulqadir Abdi was arrested in Madison County, Nebraska on April 29, 2003 and that he received from Nebraska Law enforcement a set of fingerprints associated with an arrest of Abdi on April 29, 2003; - Michelle Johnson, Custody Records Supervisor at the Hennepin County Sheriff ’ s Office is available to testify that in May 2011 she received, via e-mail from the RCMP, a set of fingerprints belonging to Abdi; - Scott Ford, Latent Print Examiner, Hennepin County Sheriff ’ s Office, Forensic Scientist, Certified Latent Print Examiner, is available to testify that he compared the fingerprints from the April 29, 2003 arrest and those from the RCMP in Brooks, Alberta and concluded that they belong to the same person. [ 23 ] The AGC also adduced viva voce evidence of Cst.

Hebert, a member of the Calgary Police Service. He testified that he received a phone call on May 30, 2011 from the Brooks detachment regarding a person they had in custody on a charge of common assault by the name of Ali Omar. Cst. Hebert notified the RCMP in Brooks of the possibility of an alias for Ahmed Abdi wanted out of Minnesota. RCMP called him back to notify him that they had Ahmed Abdi in custody using the alias of Ali Abdi Omar. [ 24 ] Cst. Hebert went to North Edmonton to obtain a provisional arrest warrant. He was advised that Ali Abdi would be held in the Calgary Remand Centre.

He drove back to Calgary and arrested Abdi under the provisional arrest warrant on June 1, 2011. He compared photographs of Abdi to the person brought to him at the Calgary Remand Centre. He formed the opinion they were one and the same taking into account: the facial features, basic bone structure, general look, his left ear which appeared squared off in comparison with the rounded right ear, a small mole on the left cheek, and slight lighter colouration around brow line.

On cross- examination, he indicated that it would have been the arresting officer who obtained Abdi ’ s fingerprints. [ 25 ] During the hearing, Cst. Hebert identified the person in the dock as being Abdi. [ 26 ] The AGC advised the Court that it has been a long established practice of an extradition hearing judge to compare the photograph of the person sought contained in the ROC marked as Exhibit 2 before the Court with the person before the Court to determine that identity has been established.

In United States of America v Wong , [1993] BCJ No 2984 , Holmes J., in discussing this practice had this to say: 74 The United States of America, however, relies upon the decision of Schultz, J., sitting as an extradition judge, in Re The United States of America and Peltier , unreported, No. 76O176, June 18, 1976 B.C.S.C.

He clearly accepted the use of photographic evidence in respect of the identification process and so I have compared the photographs referred to with the fugitive William James Wong before me in this processing and find the photographs to be a good likeness of him, and accept that he is one and the same person referred to in the evidence as the person who fled following conviction and prior to sentencing on the charge in issue. [ 27 ] I examined the individual in attendance before the Court, and compared his visual appearance with the photographs exhibited in the ROC.

I concluded that the individual in custody in this matter is indeed the person depicted in those photographs and is Abdi. [ 28 ] Counsel for Abdi focused on the fingerprint evidence obtained in Canada and sent to the United States for comparison, arguing that there was no evidence of the circumstances of the arrest in Brooks, nor whether Abdi was ever charged in relation to the alleged incident. He noted that s 2(1)(

b) of the Identification of Criminals Act , RSC 1985, c I-1 provides:

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: (

a) any person who is in lawful custody charged with or convicted of... Counsel notes that the Court in R v Carpenter , 2010 BCPC 175 , 259 CCC (3d) 426 held that the lack of a comma between the words “ custody ” and “ charged ” in the current version results in a requirement that the person is charged or convicted as well as in lawful custody. [ 29 ] Counsel for the AGC points out that the fingerprints in this case are not alleged to tie Abdi to the scene of the crime, and no evidence was tendered from the officer who took the prints, nor the circumstances of the incident in Brooks.

Further, the prints were properly included in the ROC as having been received by the United States authorities. [ 30 ] Both counsel referred to Canada (Attorney General) v Francis , 2009 ABQB 596 , 472 AR 274 , aff ’ d 2010 ABCA 353 , 493 AR 215 , leave denied [2011] SCCA No 47. The Court of Appeal in that case stated: 27 This is not to say that any type of Canadian-gathered hearsay evidence becomes admissible at an extradition hearing simply through its inclusion in a Record of Case.

We reject the Respondent's assertion that the s. 32(2) exception does not apply to any type of hearsay evidence, or that its application be reserved to Charter challenges or issues of substantive evidence rather than admissibility. One can easily imagine types of hearsay evidence which are so inherently unreliable that they should not be considered, notwithstanding their inclusion in a Record of Case.

However, fingerprints gathered in the course of the business of the Calgary Police Service and recorded and maintained by that institution bear a presumption of reliability which supports their inclusion as admissible evidence at this extradition hearing.

Further, as in McDowell , there was no suggestion that Officer Lund could not have been called to testify viva voce as to her taking, recording and preserving the Appellant's fingerprints, had that been necessary. [ 31 ] As in Francis , there is no suggestion here that the officer who took the fingerprints in question could not have been called as to the circumstances surrounding the taking of the fingerprints. Further, as noted by the AGC, the fingerprint evidence is not being relied on in this case to tie Abdi to the crime.

There are five eyewitnesses, including the victim and Abdi ’ s alleged best friend, all of whom are expected to testify that he was the shooter. [ 32 ] As stated previously, I took the opportunity during the hearing to compare the photographs exhibited in the ROC with the individual before the Court and concluded that the individual in custody in this matter is indeed the person depicted in those photographs and is Abdi.

Counsel for Abdi submits that differences in hair and facial hair should lead the Court to question whether the individual in custody before the Court is indeed the person sought. [ 33 ] I am satisfied beyond a doubt that the photographs of Abdi are in fact photographs of the individual who was present before the Court. I find that the fingerprints are reliable as having been gathered in the course of police business and included in the ROC as having been received by the United States authorities.

If I am wrong in this regard, I would add that although the fingerprints might provide comfort that a mistake has not been made in identifying this person as Abdi, even in their absence I would be satisfied that the individual before me is indeed Abdi, and is the person sought by the United States authorities. V. Conclusion [ 34 ] The evidence of the alleged act, set out in the ROC, is presumptively reliable.

I have concluded that there is evidence admissible under the Act of conduct that, had it occurred in Canada, would justify committal of Abdi for trial in Canada on the offence set out in the ATP authority to proceed. In particular, the evidence of identification is sufficient for committal, and it would not be dangerous or unsafe to convict based on it. [ 35 ] On the issue of identification, there is evidence that Abdi is prima facie the person who committed the alleged offence that

underlies the extradition request, and that the individual before the Court is, on a balance of probabilities, Abdi, the person sought by the United States. [ 36 ] The AGC having satisfied its burden under s 29(1) of the Act , I order the committal of Mr. Abdi into custody to await surrender to the United States of America or discharged according to law. [ 37 ] The Act provides: Report of the judge 38.

(1) A judge who issues an order of committal of a person to await surrender shall transmit to the Minister the following documents: (

a) a copy of the order; (

b) a copy of the evidence adduced at the hearing that has not already been transmitted to the Minister; and (

c) any report that the judge thinks fit. Right to appeal

(2) When the judge orders the committal of a person, the judge shall inform the person that they will not be surrendered until after the expiry of 30 days and that the person has a right to appeal the order and to apply for judicial interim release. [ 38 ] Pursuant to s 38(1), a copy of the order, a copy of any evidence adduced at the hearing that has not already been transmitted to the Minister, and a copy of this decision shall be transmitted to the Minister. [ 39 ] As required under s 38(2), Mr.

Abdi, I inform you that you will not be surrendered until after the expiry of 30 days from this order, and that you have the right to appeal this order and to apply for judicial interim release. Heard on the 2 nd day of December, 2011. Dated at the City of Edmonton, Alberta this 9 th day of January, 2012. Don J. Manderscheid J.C.Q.B.A.

Appearances: Cynthia J. Dickins Department of Justice Canada for the Applicant Derek J. Anderson Knisely Shipanoff LLP for the Respondent