The Attorney General of Canada on Behalf of the United States of America Respondent/Plaintiff - v. -, 2012 ABQB 344

Court of Queen ’ s Bench of Alberta Citation: United States of America v. Muhammad ‘ Isa, 2012 ABQB 344 Date: 20120525 Docket: 110076031X1 Registry: Edmonton Between: The Attorney General of Canada on Behalf of the United States of America Respondent/Plaintiff - and - Faruq Khalil Muhammad ‘ Isa, also known as Khalil Muhammad ‘ Isa, Sayfildin Tahir Sharif and Tahir Sharif Sayfildin Applicant/Person Sought _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice A.W. Germain _______________________________________________________ 1.

Introduction [ 1 ] The United States of America, an extradition partner with Canada, seeks to extradite Faruq Khalil Muhammad ‘Isa [“ ‘Isa”, or “the person sought”], to stand trial in the United States on charges analogous to Criminal Code , R.S.C. 1985, c. C-46, ss. 83.19 and 465(1) : facilitating a terrorist activity, and conspiracy to murder. On April 18, 2011 the Minister of Justice of Canada issued a directive to the Attorney General of Canada under Extradition Act , S.C. 1999, c. 18, s. 15 to seek an order for the committal of Mr. Faruq Khalil

Muhammad ‘Isa. [ 2 ] In preparation for the extradition hearing counsel to Mr. ‘Isa issued a notice alleging various breaches of the rights provided to Mr. ‘Isa by the Canadian Charter of Rights and Freedoms ,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [the “ Charter ”], and, by companion request, applied for eight items of disclosure. This ruling revisits the issue of disclosure in the context of extradition proceedings. 2. Law A. The Extradition Process [ 3 ] Extradition is a creature of statute, codified in the Extradition Act .

The extradition procedure has three steps, two are executive decisions of the Minister of Justice and the Attorney General, the third is a court hearing, which in Alberta is heard before the Court of Queen’s Bench: 1. the Minister of Justice and Attorney General decides whether to proceed with an extradition ( Extradition Act , s. 15); this step has already occurred in this case; 2. a judge evaluates the case against the person sought, and decides in an extradition hearing whether to commit that person for extradition ( Extradition Act , ss. 24, 29 ); this step is scheduled for September 24, 2012; and 3. if the extradition judge commits the individual for extradition, the Minister of Justice and Attorney General decides whether to surrender the person sought to the extradition partner via a “surrender order”: Extradition Act , s. 40.

A committal order made by a judge is subject to appeal. The surrender order is subject to judicial review. Thus both of these steps may ultimately be appealed (with leave required) to the Supreme Court of Canada. [ 4 ] The distinction between the Ministerial (Attorney General) and Judicial domains is summarized by Justice Watt in Germany v. Schreiber , [2000] O.J. No. 2618 at para. 72 (QL) (Ont. Sup. Ct. J.) : Under the Act, the Minister and extradition judge occupy two (2) different solitudes. The Minister has a role at the beginning and the end of the extradition process.

The judge discharges his or her function in the middle. Each operates independently of the other, except to the extent that the Minister's final involvement is contingent on a judicial order for committal. Neither intrudes into the other's area of responsibility. Neither reviews the other's determination or decision. The reviewing tribunal is the provincial court of appeal. [ 5 ] The role of the committal hearing judge is set in Extradition Act , s. 29: 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; ... ...

(3) A judge shall order the person discharged if the judge does not order their committal under subsection (1). [Emphasis added.] [6] Argentina (Republic) v. Mellino, (SCC), [1987] 1 S.C.R. 536 at 553, 40 D.L.R. (4th) 74 establishes that thethreshold for committal is that the Crown (and extradition partner) have presented evidence that represents a basis to convict, a ‘primafacie’ case: ... absent express statutory or treaty authorization, the sole purpose of an extradition hearing is to ensure that the evidence establishes aprima facie case that the extradition crime has been committed.

The procedure bears a considerable affinity to a preliminary hearing, andthe judge's powers have some similarity to those of a magistrate presiding at such a hearing ... [Emphasis added.] [7] Justices Cory and Iacobucci in United States of America v. Dynar, (SCC), [1997] 2 S.C.R. 462 at 521, 147D.L.R. (4th) 399 stress the limited role of an extradition judge: As a result, the role of the extradition judge has been held to be a "modest one", limited to the determination of whether or not theevidence is sufficient to justify committing the fugitive for surrender ... [8] In United States of America v.

Kavaratzis (2004), (ON CA), 181 O.A.C. 230 at para. 18, 182 C.C.C.(3d) 176 (Ont. C.A.), leave denied [2004] S.C.C.A. No. 107 the extradition judge sought to analyse whether the United States hadjurisdiction over the impugned conduct. Kavaratzis was alleged to have been involved in drug trafficking in both the United States andCanada.

In concluding that the Ontario justice erred in imposing an obligation on the United States to prove that it had prosecutorialjurisdiction over the drug trafficking, the Ontario Court of Appeal expressed the following limiting instruction to explain the role ofextradition judges: ... the extradition judge's role is limited to determining whether there is evidence of conduct that would amount to the Canadian offencedescribed in the authority to proceed. In this case, that conduct consists of evidence of Fonseca's international cocaine traffickingconspiracy. ... [Emphasis added.] B.

Disclosure in the Extradition Context [9] Extradition Act, s. 29(1)(

a) states that the committal or release depends on the “... evidence admissible under this Act ...” thatcould warrant a Canadian trial of the person sought. That is a burden on the Attorney General (and indirectly the extradition partner). [10] A judge dealing with an extradition hearing disclosure application must remain focused on the limited judicial role in anextradition process. Requests for disclosure must be adjudicated in the context of what the extradition judge must decide.

Legalauthorities track that understanding. [11] In Canada the modern starting point for disclosure in a criminal trial context is R. v. Stinchcombe, (SCC),[1991] 3 S.C.R. 326, 130 N.R. 277 [“Stinchcombe”]. Stinchcombe, at 340, indicates that as part of the accused’s right to a full defencethe Crown must disclose to the defence anything that it possesses which “may assist” the accused: ... the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of informationwill impair the right of the accused to make full answer and defence ... [Emphasis added.]

[12] Courts have frequently applied the Stinchcombe rules in a wholesome and adaptable way, for example even obligingdisclosure of conduct files of police officers involved in the investigation of the alleged crime: R. v. McNeil, 2009 SCC 3, [2009] 1S.C.R. 66. [13] However, the Stinchcombe rules do not apply to disclosure in the extradition process: United States of America v. Kwok,2001 SCC 18 at para. 100, [2001] 1 S.C.R. 532. [14] The level of disclosure required in extradition cases has been shaped by three cases from the Supreme Court of Canada. Thefirst is United States of America v.

Dynar, (SCC), [1997] 2 S.C.R. 462, 147 D.L.R. (4th) 399. Cory and Iacobucci JJ.at para. 132 identify kinds of information that are not subject to disclosure. There is no obligation for the Crown and extradition partnerdisclose the entire case against the person sought: The obligation on the Requesting State is simply to establish a prima facie case for the surrender of the fugitive and it is not required togo further than this. [15] The relationship between the Crown and a foreign jurisdiction is irrelevant to the case against the accused and not subject todisclosure: para. 132.

The scope of required disclosure is identified at para. 134: ... the fugitive is entitled to know the case against him. ... In light of the purpose of the hearing, however, this would simply entitle himto disclosure of materials on which the Requesting State is relying to establish its prima facie case. Unless the person sought can identify additional disclosure that relates to the case against him, no additional disclosure is required: para.135. [16] An analogous approach was adopted by Nakatsuru J. in R. v.

Sitaram, 2011 ONCJ 199, 277 C.C.C. (3d) 421, who concludedthat disclosure that related to an alleged breach of a conditional sentence order is generally limited to the information about the breachand the evidence that the Crown will be relying on to establish the breach. An application for collateral disclosure touching on the areaof conditional sentence order supervision, or to irrelevant issues was rejected. This is but one application of the disclosure obligationbeing shaped by the matter that is squarely before the court.

These approaches share the same common guiding principle, that evidenceis relevant when it may affect a court’s decision. Irrelevant evidence need not be disclosed. [17] An exception to the ‘prima facie’ evidence limitation in extradition hearings was established in United States of America v.Kwok. A person sought may obtain disclosure of material that could, to some standard, demonstrate the possibility of a Charter breach,and establish that the disclosed information could provide evidence or assistance to a hearing judge who evaluates the possibility of aCharter breach: para. 57.

This relates to the requirement that evidence admitted under Extradition Act, s. 29 must not be contrary toCharter principles. [18] The implicit requirement in that case was a threshold that any allegation of unconstitutional misconduct must have an ‘air ofreality’ (para. 100): The extradition judge may only order the production of materials relevant to the issues properly raised at the committal stage of theprocess, subject to his or her discretion to expand the scope of that hearing to allow the parties to establish the factual basis for asubsequent Charter challenge, when it is expedient to do so, including, obviously, when there is at least an air of reality to the Charterclaims ... [Emphasis added.] [19] Legal authorities also recognize that the air of reality test may be applied in a non-Charter context, for example in UnitedStates of America v.

Gunn, 2007 MBCA 21 at para. 43, 212 Man.R. (2d) 241, leave denied [2007] S.C.C.A. No. 108 in response to anabuse of process allegation:

... the very nature of extradition proceedings continues to severely restrict the amount of production and disclosure that will be requiredfrom requesting states.

Broad disclosure standards mandated in domestic criminal trials continue to be excluded from extraditionproceedings, except on the rare occasion where there is an air of reality to the assertion that the accused's sec. 7 right to a fair hearing hasbeen adversely affected or there has been an abuse of process. ... an extradition judge has a greater discretion than that of a judgedetermining the question of committal for trial, such discretion is very much constrained by the realities of the extradition process itself.Extradition hearings continue to be part of an expedited process to comply with Canada's international obligations.

C. An “Air of Reality” [20] An “air of reality” means some realistic possibility that the allegations can be substantiated if the orders requested are made.This test threshold is described in R. v. Durette (1992), (ON CA), 9 O.R. (3d) 557, 54 O.A.C. 81, reversed on othergrounds [1994] 1 S.C.R, 70 O.A.C. 1: ... the accused bears the burden of making a tenable allegation of mala fides on the part of the Crown. Such an allegation must besupportable by the record before the court, or if the record is lacking or insufficient, by an offer of proof.

Without such an allegation, thecourt is entitled to assume what is inherent in the process, that the Crown exercised its discretion properly, and not for improper orarbitrary motives. ... [T]he allegation ... cannot be an irresponsible allegation made solely for the purpose of initiating a "fishing expedition" in the hope thatsomething of value will accrue to the defence. [21] An alternative formula for the “air of reality” is provided in United States of America v. Earles, 2003 BCCA 20 at para. 34,171 C.C.C. (3d) 116, citing United States of America v.

Dynar, (SCC), [1997] 2 S.C.R. 462: ... before a fugitive will be allowed to embark on a Charter inquiry, there must be some 'air of reality' to a contention that the extraditionhearing risks being unfair. [Emphasis added.] [22] In Scarpitti v. United States of America, 2007 BCCA 498 at para. 27, 247 B.C.A.C. 234, Finch J.A. endorsed the standardindicated in United States of America v. Freimuth, 2004 BCSC 154 at para. 46, 183 C.C.C. (3d) 296 that: Allegations of misconduct by foreign authorities should not be given any credence without further proof.

In the absence of suchevidence, entertaining allegations that foreign officials are misleading our Courts "conveys a reflection of the gravest possible kind, notonly upon the motives and actions of the responsible government, but also impliedly upon the judicial authorities of a neighbouring andfriendly power" [Emphasis added.] D. Application of the Air of Reality Test [23] In R. v. Larosa (2002), (ON CA), 163 O.A.C. 108, 166 C.C.C. (3d) 449 (Ont.

C.A.), the Ontario Court ofAppeal outlined at para. 76 a three-part test to determine whether a court should compel the production of additional disclosure: In my view, before ordering the production of documents and compelling testimony in support of allegations of state misconduct, thiscourt should be satisfied that the following three criteria have been met by the applicant: * the allegations must be capable of supporting the remedy sought;

* there must be an air of reality to the allegations; and * it must be likely that the documents sought and the testimony sought would be relevant to the allegations. See also: United States of America v. Rosenau , 2010 BCCA 461 , 292 B.C.A.C. 294, leave refused [2010] S.C.C.A. No. 465; Khadr v. Canada (Attorney General) , 2008 FC 549 , 329 F.T.R. 80 (F.C.A.); United States of America v. Gunn , 2007 MBCA 21 , 212 Man.R. (2d) 241; United States of America c. Larose , 2006 QCCS 45 , 69 W.C.B. (2d) 427, affirmed 2008 QCCA 1846 . 3. Analysis A.

The Request for Disclosure [ 24 ] This current application has evolved over time, as the Crown has voluntarily made available significant information requested by the Applicant. This has greatly restricted the breath of the Defence application.

Schedule A sets out the notice of motion requests and how the Crown has responded to the Defence application to date, absent court adjudication. [ 25 ] In addition, the Applicant initially sought all documentation and information about any ‘balancing’ that the United States may have engaged in during its evaluation of the merits of prosecuting the person sought in the United States. During the disclosure application counsel for the Applicant clearly conceded that this is an irrelevant public policy consideration and abandoned this element of the application. Counsel’s assessment coincides with my own. [ 26 ] In

summary, the Crown has voluntarily provided copies of all documents intended to be tendered into evidence at the extradition hearing, including: 1. the DVDs of the post-arrest interview of Mr. ‘Isa, and 2. details and record of all of the wiretaps during which the Crown asserts the person sought made comments to third-party co- conspirators or criminal participants which implicate him to the charges for which extradition is sought. B. The Positions of the Parties i.

The Applicant / Person Sought [ 27 ] The present application is for disclosure that would support the Applicant’s thesis that some of the evidence relied on by the Crown in the proposed extradition hearing was obtained by torture. That torture, it is alleged, was inflicted by either investigative or enforcement personnel of the United States of America, or their Iraqi sympathizers.

As such, Canadian values prevent that evidence from being “admissible” ( Extradition Act , s. 29(1)(a)) and being part of the prima facie case against the person sought. [ 28 ] The Applicant asserts he has raised an air of reality to the possibility that some of the individuals who provided information to facilitate this investigation, and the ultimate basis to proceed, were tortured to provide that information and accordingly that information should be excluded. He argues he has satisfied all three elements from R. v. Larosa . ii. The Respondent / Crown

[ 29 ] The Crown disputes that Applicant’s position on a number of basis. First, it argues that the evidence suggested by the Applicant that raises as air of reality to support their argument (i.e. the argument that the evidence used in the extradition hearing was obtained by torture) was filed late and should not be considered. Second, some allegations constitute ‘hearsay upon hearsay’, and have little or no probative value. These second hand allegations do not raise an air of reality that some or any of the evidence proposed to be used at the extradition hearing was obtained by torture.

The Crown also argues that the requests for disclosure are for information that is irrelevant in the context of this extradition hearing. [ 30 ] The Crown categorically denies an obligation to disclose certain categories of information: 1. information that relates to whether others could have been sought to be extradited in the same or related offenses, 2. any Crown analysis of the benefits and disadvantages of prosecuting the person sought in Canada versus his extradition to the United States, and 3. whether the Minister of Justice or Attorney General will be seeking an order for committal of the person sought in relation to other alleged offenses beyond those contained in the April 18, 2011 authority to proceed.

C. The Evidence of Alleged Torture [ 31 ] The Applicant’s evidence tendered in support of their application consists of a mixture of public documents, affidavits, and a ‘medical report’: 1. United States Department of State Country reports on Human Rights Practices 2009: Iraq , 2. Amnesty International, New Order Same Abuses: Unlawful Detentions and Torture in Iraq , September 2010, 3. Affidavit of Mr. Muhammad ’Isa, dated February 27, 2012, 4.

Affidavit of Shaykh Sheikh, dated March 13, 2012, and 5. a medical report concerning Mr M. - a younger brother of the person sought. [Note: this medical report was attached as an exhibit to an affidavit of translation by Shaykh Sheikh dated March 22, 2012] i. The Human Rights Reports [ 32 ] The U.S.

Department of State report and the report of Amnesty International both paint a horrific picture of blatant, extensive, and widespread abuse upon certain citizens and factions within the country of Iraq which would lead a reasonable reader of those reports to conclude that, at any given time, individuals who might not support those immediately in a position of power could face great risk of torture. These reports state that a pro-democracy advocate could entail the same risks.

Both documents paint a general picture of widespread fear. [ 33 ] The issue for this Court, in the context of the extradition hearing, is to conclude whether a country’s media reputation of being a place where torture exists is a sufficient basis to conclude that the extradition partner, in this case United States of America, engaged or participated in that torture to collect evidence upon which the foreign extradition order against Mr. Muhammad ‘Isa is made.

ii. The ‘Isa Affidavit [ 34 ] Mr. Isa’s 44 paragraph affidavit can be broken into two parts. Paragraphs 1-7 relate to his English language difficulties and recount how he was treated by the RCMP on his arrest on January 19, 2011. That is irrelevant here. The second

part is his information about various conversations he has had with other persons, generally relatives. During these conversations ‘Isa was given first or second hand information about who had informed upon him; he alleges these persons admitted that their allegations were made only after being tortured. [ 35 ] In paragraph 16 Mr. ‘Isa indicates that he saw an electronic photo of one of these informants and felt his physical appearance had been altered by torture [‘Isa Affidavit, para. 16]. This photograph was not presented as an exhibit to the affidavit. [ 36 ] Notably, Mr.

Isa does not allege in his affidavit that he, personally, was tortured. He does not report mistreatment by Canadian or American law enforcement personnel. Paragraph 8 of his affidavit sums this up: I believe that the allegations against me are based on statements from individuals who have been tortured. I further believe those statements have been retracted by those individuals. [ 37 ] The bulk of Mr. ‘Isa’s affidavit is hearsay. Elements of his affidavit which are not hearsay include his innocent, rather than sinister, explanation for sending money to Iraq: he sent that money to assist family members.

Those discussions are however evidence for the trial and not relevant to an extradition hearing. [ 38 ] Of importance is the fact that his hearsay information alleges that his brother, M., reported that he was tortured in Iraq after arrest. However, the date of that arrest was one or two days after Mr. ‘Isa was arrested in Canada [‘Isa Affidavit, para 33]. That undercuts any suggestion that the brother was tortured and provided information that led the police to then arrest Mr. ‘Isa as a consequence of information obtained from the brother’s alleged torture.

The alleged torture of M. is particularly relevant as the arrest of M. is the only instance in Mr. ’Isa’s affidavit which alleged the involvement of American Forces. Mr. ‘Isa deposes that someone has told him that his brother was tortured either by Iraqi military forces, by US forces, or a combination of both. iii. The Sheikh Affidavit [ 39 ] The affidavit of Mr. Sheikh purports to be a third-party account of a conversation that he overheard in his role as an Arabic to English language interpreter.

The call he overheard (with consent) purported to be a telephone call with the lawyer for M. (M. is identified as the younger brother of Farouk Muhammad ‘Isa). The affidavit reports a telephone call on February 26, 2012 that originated in Edmonton and went, according to the affidavit “oversees [sic]”. One person on the line was counsel for Mr. ‘Isa, the other purported to be a lawyer in Iraq.

The affidavit indicate that an unidentified female person, who was identified as M.’s lawyer, confirmed that her client (M.), had been arrested in January 2011 and released February 6, 2012 on an allegation that he was a member of a terrorist group. This further supports the likelihood that the brother was only arrested after the U.S. authorities felt they had a prima facia case. [ 40 ] The affidavit goes on to opine that the alleged Iraqi lawyer became reluctant when she was requested to participate more greatly in an affidavit to present at Mr. ‘Isa’s extradition hearing to the United States. Mr.

Sheikh concludes the female speaker was fearful. The alleged Iraqi lawyer then refused to participate any further, other than to agree to forward a formal decision of the Iraq courts relating to her client, when that decision was released. The affidavit continues to indicate that the Iraqi lawyer does not want to participate any further; she felt that her call was being monitored and that she did not want to participate in any communication by fax or via the Internet. [ 41 ] The affidavit of the interpreter then indicates that he heard and translated conversation between counsel for the person sought, and “M.”.

M. says he heard from his lawyer, who advised M. that the Canadian lawyer would be calling. M. did not want his name or M.’s lawyer named or associated with any documentation.

[ 42 ] Mr. Sheikh’s affidavit then itemizes seven points: 1. M. was arrested on January 22, 2011 and released February 26, 2012; 2. M.’s initial detention was based on an allegation that he had been involved in the killing of five American soldiers in Mosul in April of 2009; 3. M. went on to indicate that American and Iraqi forces attended his home and beat him for approximately one hour and a half; 4. M. was arrested, taken from his home, and tortured for seven days; 5. American forces were present during this period of time and M. became unconscious; he believes he was drugged; 6.

M. indicates that he suffers from asthma; and 7. his older brother (one assumes a reference to the person sought), sent him money in the past which he used for household expenses. Apparently M. declined to be further involved, other than agreeing to send the decision of the Iraqi court, and states his reason for his failure to get involved is his fear of torture. [ 43 ] There is no sworn affidavit from M. Mr. Sheikh’s affidavit is simply his translation of oral statements made by a person identified as M.

There is no independent verification of who M. is, or his relationship to the case other than in the affidavit of Mr. Mohammad ‘Isa. Mr. ‘Isa indicates that his brother M. was caught up in this incident with him. [ 44 ] That same defect is present in the part of the affidavit that relates the conversation with M.’s lawyer. There is no independent verification that the individual with whom Mr. Sheikh was speaking is a lawyer, M.’s lawyer, where she is based and situated, nor any indication of her professional role. iv.

The Medical Report [ 45 ] The final piece of information is a translation of a medical letter that allegedly discusses M. and injuries he suffered. It describes M. as appearing to have injuries. The manner in which this evidence is adduced before the court is again by an affidavit of Mr. Sheikh, sworn March 22, 2012, which attached as exhibits: 1. the original medical report in Arabic, and 2. a translation of the report. The actual medical report is dated June 20, 2011. The actual date of the examination is said to be the same date June 20, 2011.

[ 46 ] The medical report in its substance is as follows: · There are five old bruises, elongated in shape. Each is 10.__ cm long, caused by a long shaped tool, or something like that, on the back and one on the left shoulder. · He claims to have pain in the right ear we recommend that he should be examined by a Nose, Ear and Throat specialist. Note: the description “old” was meant to describe that what occurred was over two weeks before up to an unspecified time. The medical report is stated to be over the signature of Dr.

Samir Ibrahim Abdullah, Director of Medical Justice Department. [3] Does this evidence, taken collectively, raise an air of reality to the allegation that “the evidence to be tendered at the extradition hearing was obtained through torture? D. Evaluation of the Applicant’s Evidence i. Preliminary Issue – Is the Sheikh Evidence Admissible? [4] The first issue raised at the application is the Crown’s objection to the admission of the initial affidavit of Mr.

Sheikh and the affidavit by the same interpreter translating the medical report. [5] The seriousness of the matter justifies that the evidence be considered notwithstanding that it was delivered late and, in the case of the medical report, delivered only in rebuttal. Evidence which could lay a foundation for a further order of disclosure that might affect the root of the case for extradition should not lightly be excluded on technical timing arguments. [6] I will not exclude these documents simply because counsel for the Applicant received the information late or failed to present it early.

That is, the court should act in a fair manner taking into account the difficult burden upon the Applicant to obtain and provide evidence of torture, an activity that is often done surreptitiously and hidden from the eye of public scrutiny. To the extent that there is any ‘elasticity’ in the rules of evidence on the basic admissibility of the evidence upon which the case for disclosure is grounded, (as opposed to the weight accorded to it) that elasticity should be stretched nearly to the snapping point. Where the ‘snapping point’ falls in each case is on a case and fact specific basis. ii. Air of Reality a.

The Crown’s Case is Based on Information From ‘Isa [7] The Applicant argues that he has presented evidence that raises an air of reality that the Crown’s evidence at the extradition hearing was obtained through torture. That means I must outline the notational minimal case advanced by the Crown that would be the basis for extradition. [8] In advance of the actual extradition hearing, this evidence is presented to the Court in the form of a committal hearing record. The Crown’s case has four basic components, plus the necessary expert

interpretations of cultural and “code meanings”: 1. information obtained from Mr. ‘Isa’s arrest and interview on January

19, 2011, 2. inferences drawn from the results of computer searches and wiretap evidence, 3. summaries of interviews with various code-named conspirators who make up the terrorist facilitation network, and 4. inferences that flow from allegations that Mr. ‘Isa is utilizing aliases. [9] This, of course, is not a full analysis of the lengthy case that the extradition state claims to have assembled against this individual. Nor should my review of it, in the context of this disclosure application, be taken as an acceptance of that evidence, nor to have prejudged the merit of the upcoming hearing.

It is, however, observable that the asserted elements that will be submitted to be capable of inference and

interpretation flow directly from Mr. Isa and not from third parties. In short, it is the position of the United States that the information ‘mined’ from Mr. ‘Isa’s computer, and the records of his communication between himself and third parties, revealed by the computer, may lead to a common-sense inference that the minimal case for an extradition order has been made out. [10] Mr. ‘Isa was the subject to wiretap surveillance. Those wiretaps may also lead to a common-sense inference that Mr. ‘Isa was involved with or assisting terrorist activities.

The Crown assert they intend to relies on wiretap evidence during which Mr. Farouk Khalil Mohammad ‘Isa is heard on the phone talking to third parties identified by descriptors. Their role as a recipients of messages from Mr. Mohammad Isa is also described. The warrants to wiretap in this case were issued by a Canadian Judge and the wiretap evidence obtained through the tedium of police work of reviewing extensive communications. [11] This evidence does not come from persons who were tortured – it comes from Mr. ‘Isa, himself. Mr.

Isa does not advance a disclosure application on the basis of any torture personally inflicted upon himself. If he had, then that could be a basis for further disclosure: United States of America v. Khadr , 2011 ONCA 358 . [12] It is difficult to see how any additional disclosure, even if it did establish that certain other individuals were tortured in Iraq, could have any impact on evidence that flows directly from Mr. Isa’s computer or his own voice.

In short, measuring the limited obligation and requirements necessary to obtain an extradition order, the comments, utterances, and electronic records from Mr. ‘Isa himself may on their own create a strategic jeopardy of an adequate basis to commit Mr. ‘Isa for extradition to the United States. [13] The Applicant originally challenged whether those wiretaps were legal, but that issue was addressed by prior Crown disclosure. That means there is no allegation of unconstitutional search or seizure that relates to Mr. ‘Isa and his communication activities. b.

The Alleged Torture in Iraq [14] An allegation of torture could very well be basis to order further disclosure if the Application established an “air of reality” that the person sought was tortured in the investigative process. I reject the suggestion that further disclosure is warranted after an allegation that other co-conspirators or witnesses may have been tortured. That claim is particularly problematic when it is grounded, on a speculative basis, from the fact the alleged torture victims reside in a country in which torture is known to occur. [15] In Scarpitti v.

United States of America , at para. 27 , Justice Finch of the British Columbia Court of Appeal observed that bald allegations of misconduct by foreign authorities warrant proof:

... entertaining allegations that foreign officials are misleading our Courts "conveys a reflection of the gravest possible kind, not only upon the motives and actions of the responsible government, but also impliedly upon the judicial authorities of a neighbouring and friendly power". Here that neighboring power is the United States, which has a well-established and historic position as a leader in human rights and procedural justice. [16] An allegation of torture is irrelevant if the alleged torture post-dates both the detention of the person sought and the collection of the asserted prima facia evidence.

That is the case for the alleged mistreatment of M. by some combination of the United States personnel or their Iraqi agents. Mr. ‘Isa’s evidence is M. was arrested and tortured after Mr. Isa was arrested and the wiretaps of his phone and surreptitious computer search had occurred. [17] Further, it is a greater stretch to infer that torture was applied to collect the evidence advanced by the Crown simply because an individual identified as “the brother’s lawyer” expresses “fear of involvement”. That is simply bold speculation.

It certainly does not meet the requirement to raise an air of reality, particularly in the context of the standards for evidence in an order of extradition. [18] Some or all of those issues may become important trial issues, but judges in extradition reviews have been consistently reminded by the Supreme Court of Canada and other appeal courts that their limited role does not admit of, or permit, an extensive inquiry as to whether or not a conviction will be achieved.

Our limited role is to determine if the Crown, in their committal materials, can simply establish the it is reasonably shown that the Crown might establish the elements of the offense(

s) at trial, for an analogous offense set in Canada. [19] The Crown does not have to prove the guilt of the person sought and guarantee the outcome. The extradition hearing is to separate allegations that are possible from those that are frivolous, illogical, and incomplete. [20] Last, the United States, the extraditing partner, is not linked or associated in any way with alleged torture.

The Application advanced speculative and hearsay evidence from ill-defined sources that the brother of the person sought was tortured in Iraq, and that either Americans or Iraqi’s sympathetic to American interests were behind the torture. As previously observed, even if that alleged torture of M. did happen it occurred after the arrest of Mr. ‘Isa, and so could have played no

part in circumstances leading to his arrest. [21] There is one further over-arching speculative theory. It was raised by learned counsel for the person sought in questioning from the Court. Factually, suppose somebody is tortured in Iraq and through that torture gives up the name of the person sought, and who is resident in Canada. The law enforcement agencies then comply with the law relating to the collecting of evidence. The evidence collected raises a prima facie case that extradition is warranted.

The concept is that an ‘upstream’ torture event may ‘taint’ all investigations that flow from the torture. [22] This argument may be of more interest to the ultimate trial judge, depending on the manner in which the alleged torture is presented and whether evidence of the role of illegally collected evidence can be developed. However, that broader perspective is not relevant to an extradition process and learned counsel for the person sought clearly concedes that his evidence does not go that far. IV.

Conclusion [23] Mr. ‘Isa’s application for additional disclosure is dismissed on the basis that the Applicant has not raised an air of reality that the information sought will be relevant to the extradition hearing. A second reason for declining to order disclosure is that some of the information sought is simply irrelevant to the proceedings. Heard on the 21 st day of March, 2012.

Dated at the City of Edmonton, Alberta this 24 th day of May, 2012. A.W. Germain J.C.Q.B.A. Appearances: Stacey Dej & Moiz Rahman Department of Justice for the Respondent/Plaintiff Bob H. Aloneissi and Michael Sparks Beresh Cunningham Aloneissi O’Neill for the Applicant/Defendant

Schedule A: Breakdown of the Applicant’s Original Disclosure Request, and Subsequent Developments Nature of Applicant Request Crown Response Applicant Follow-up, Modification, or Judicial comment List and copies of all documents planned to be tendered into evidence at the extradition hearing Crown has disclosed these materials The Applicant is satisfied with this disclosure Evidence gathered by American investigators on January 19, 2011 during the interrogation of the person sought, including, but not limited to, a transcript and DVD copy of the interview Crown has disclosed this information, but no transcript was disclosed as the Crown has not ordered and does not plan to order a transcript of the DVD of the interrogation The Applicant suggests a transcript may be helpful, and the Court encourages that, however the Court is in no position to order that a transcript be created.

Whether: 1. extradition proceedings have been commenced against other individuals who have been arrested or detained in relation to this investigation, and 2. if no extradition proceedings have been commenced against these individuals, and disclosure of the reasons why extradition has not been sought in relation to these individuals are Crown declined to produce this information as irrelevant Ruling: This information is irrelevant to the ‘Isa committal hearing All memorandums, opinions, and correspondence, including electronic correspondence (e- mail), that addressed the pros and cons of prosecuting the person sought in Canada versus his extradition to the United States.

Crown declined to produce that information as it is irrelevant to the committal process and relates to prosecutorial discretion The Applicant abandoned this disclosure request.

This information is irrelevant to the committal stage of the extradition process Whether the Minister of Justice or the Attorney General intend to seek an order for committal of the person sought on allegations other than those listed in the authority to proceed dated April 18, 2011, or if either of them is in possession of any information relating to this issue Crown declined to produce that information as it is irrelevant to the committal process and relates to prosecutorial discretion. The Applicant abandoned this disclosure request.

This information is irrelevant to the committal stage of the extradition process. The names of any witnesses whose statements were relied upon in the revised record of the case for the prosecution. The Crown agreed to and has provided a witness list of those witnesses who will give evidence at the extradition hearing.

The Applicant agreed this disclosure met its request Complete copies of existing transcripts and DVDs of the Crown’s witnesses The Crown agreed to provide the evidence relating to witness statements The Applicant agreed this disclosure met its request Information that relates to the circumstances that surround the statements of the Crown’s witnesses, including but not limited to whether any of these individuals were tortured prior to providing their statements The Crown declined to provide that evidence Ruling: (see reasons) The Applicant has not established an air of reality to its allegations of torture that would support additional Crown disclosure New item [raised after filing of notice of motion]: was any of the audio surveillance of the person sought obtained by the police contrary to a court requirement that communication only be monitored by ‘live surveillance’ The Crown has advised the Applicant and Court it has undertaken to file an affidavit that confirms that no wiretaps are being utilized in this case had a requirement of concurrent live surveillance The affidavit undertaking to be provided by the Crown is directed to be disclosed and satisfies this item