The Attorney General of Canada on Behalf of the United States of America Respondent/Plaintiff - v. -, 2012 ABQB 641

Court of Queen ’ s Bench of Alberta Citation: Canada (Attorney General) on behalf of the United States of America v.

Muhammad ‘ Isa, 2012 ABQB 641 Date: 20121019 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 Corrected judgment: A corrigendum was issued on October 30, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice A.W.

Germain (Voir Dire Ruling on Admissibility of Interviews ) _______________________________________________________ I. Introduction

[1] Faruq Khalil Muhammad ‘Isa [the “Person Sought”] is facing an extradition hearing to stand trial in the United States oncharges similar to Criminal Code, R.S.C. 1985, c. C-46, ss. 465(1) (conspiracy to murder) and 83.19 (facilitation of terrorist activity). [2] Mr. ‘Isa was arrested by the Royal Canadian Mounted Police [“RCMP”] in Edmonton around 9:00 a.m. on January 19,2011.

After transportation to an RCMP detachment at Sherwood Park, Alberta, he was allowed to contact a lawyer (his present counsel)and, when that contact ended, Mr. ‘Isa was questioned for approximately seven hours by the RCMP, and then for three hours by U.S.authorities. The Crown applies to incorporate a small portion of these interviews into the committal hearing ‘record of the case’, asdefined in the Extradition Act, S.C. 1999, c. 18, s. 33. [3] I conclude the statements by Mr. ‘Isa were both voluntary and Charter compliant, and so may be utilized in the mannerproposed by the Crown.

My conclusion is explained in the reasons which follow. II. The Legal Framework [4] Counsel agree on the underlying law which shapes this application. In light of their significant and substantial agreement it isuseful that I outline the legal framework before reviewing the position of the parties. [5] Section 32(2) of the Extradition Act requires that “... evidence that would otherwise be admissible under Canadian law shallbe admitted as evidence at an extradition hearing ...”.

This means that where statements made by the person sought to persons inauthority are proposed to be used as part of the extradition hearing, (even if only incorporated into the record of the case) then thosestatements must be shown to be voluntary, and compliant with the Canadian 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”]. [6] Mr. ‘Isa claims that his Charter ss. 7, 10(

b) and 14 rights were not afforded to him. In brief, he says: 1. his s. 10(

b) right “... to retain and instruct counsel without delay and to be informed of that right” upon arrest was not met by hisconsultation with his lawyer on the day of his detention; 2. given his restricted comprehension and use of English, his s. 14 “... right to the assistance of an interpreter ...”, in a Charter, s. 7context, was not met during interviews with authorities; and 3. his statements to authorities were not voluntary, and therefore offend the general principle that “Everyone has the right to life,liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamentaljustice.”: Charter, s. 7. [7] The standard of proof for these alleged breaches of Mr. ‘Isa’s rights varies.

In relation to the alleged Charter, s. 7 breach, theCrown must prove beyond a reasonable doubt (R. v. Oickle, 2000 SCC 38 at para. 68, [2000] 2 S.C.R. 3) that the statements arevoluntary. Otherwise, those statements are excluded. The person sought has the obligation to prove, on a balance of probabilities, that hisCharter, s. 10(

b) and 14 rights were breached: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310; R. v. McCrimmon, 2010 SCC 36,[2010] 2 S.C.R. 402; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429; R. v. Tran, (SCC), [1994] 2 S.C.R. 951, 117D.L.R. (4th) 7. [8] Evidence obtained following a breach of either Mr. ‘Isa’s Charter, s. 10(

b) or 14 rights must be excluded, under Charter, s.24(2), if “... having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice intodisrepute.”: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[9] The legal requirement that a statement to authorities must be voluntary predates the Charter. Its historical antecedents wereonly concerned about the physical treatment of the detainee, and to ensure that any confessions or admissions made were factuallyvoluntary, and not extracted by torture or deprivation. A rule of law developed, shaping a practice which became the cornerstone ofvoluntariness, that a detainee be told that he did not have to speak to a person in authority. This rule has a long history (Ibrahim v.

TheKing, [1914] A.C. 599 (P.C.)), and remains embedded in police procedure even today, even though the Supreme Court of Canada hassuggested (R. v. Hebert, (SCC), [1990] 2 S.C.R. 151, 77 C.R. (3d) 145) that the police may no longer have a positiveduty to specifically inform the detainee of that right. [10] In their text, The Law of Evidence in Canada, 3rd Edition, Sopinka, Lederman, and Bryant observe : 8.286 The common law on the admissibility of confessions has remained relatively stable since its review by the Supreme court ofCanada in R. v. Oickle.

While the law will no doubt continue to evolve, it would appear that future jurisprudential advancements will beincremental rather than over arching. [11] R. v. Oickle reconfirmed that a trial judge who reviews a statement given to persons of authority must look at the statement toensure that the individual who is making the statement still has an “operating mind”. That means that the person being interviewed isable to focus on the fact that he or she is entitled to remain silent.

This analysis is done in the context of all of the statement’ssurroundings, including: 1. the manner in which the interview is being conducted, 2. whether there are any threats or promises, 3. any “police trickery”, and 4. the physical condition and mental state of the detainee. [12] The Charter imposes additional obligations on law enforcement authorities.

Significant among the obligations is that not onlymust the persons in authority continue to show that a statement was voluntary, they must also ensure that the statement obtained was infull compliance with the Canadian Charter, as interpreted by the Supreme Court of Canada. [13] The

section 10(

b) right to consult with a lawyer has been the subject of many Supreme Court decisions, most recently R. v.Sinclair, R. v. McCrimmon, and R. v. Willier. It applies to anyone detained by authorities, including a person sought under theExtradition Act. [14] This right has two parts, that the detained person 1. be fully informed of their entitlement to seek legal advice (the “informational component”), and 2. have a reasonable opportunity to do exercise that right (the “implementational component”).

This right is linked to the concepts of voluntariness and the right to silence, and now is so intertwined that the majority in R. v. Singh,2007 SCC 48 at para. 37, [2007] 3 S.C.R. 405, expressed the view that: ... A finding of voluntariness will therefore be determinative of the s. 7 issue. In other words, if the Crown proves voluntariness beyond a

reasonable doubt, there can be no finding of a Charter violation of the right to silence in respect of the same statement. The converse holds true as well. If the circumstances are such that an accused is able to show on a balance of probabilities a breach of his or her right to silence, the Crown will not be in a position to meet the voluntariness test. ... [ 15 ] Nevertheless, because the burdens are expressed differently, the standard legal analysis deals first with voluntariness, and then considers whether a statement which would pass the traditional voluntariness test is Charter compliant.

That is the proposed manner in which I will tackle the factual nuances raised by this case. III. The Position of the Parties A. The Crown [ 16 ] The Crown asserts that the statements obtained from Mr. ‘Isa were voluntary, and that he was appropriately treated both during and after his arrest. In particular, the Crown asserts that Mr. ‘Isa’s Charter , ss. 7 , 10(

b) and

section 14 rights were not violated. [ 17 ] The Crown observes that his s. 7 right to silence was made clear to Mr. ‘Isa on more than one occasion. The Crown further asserts that, factually, Mr. ‘Isa spoke to the police despite their warning to him that he did not need to speak to them. Not only were the statements voluntary, but the Crown asserts that Mr. ‘Isa controlled the interview and, in fact, expressed some disappointment at 2:30 a.m. (nearly 18 hours after his arrest) that the American authorities wished to stop the interview. [ 18 ] He was informed of his right to counsel, and exercised that right prior to any interview, meaning his Charter , s. 10(

b) rights were properly administered and properly understood by the police. The Crown’s position is that the police are entitled to assume that after speaking to a lawyer of Mr.

Aloneissi’s professional stature and circumstance, Mr. ‘Isa received advise appropriate for the jeopardy he was facing, which did not change, and that no further entitlement to speak to a lawyer existed on the facts of this case or is required by law. [ 19 ] Given his familiarity with the English language, Mr. ‘Isa did not require an interpreter, so his Charter , s. 14 rights never came into play. [ 20 ] If I conclude that there were any Charter compliance issues, the Crown’s fallback position is that the police acted in good faith, based on their understanding of the law, and that the statements should still be admitted under s. 24(2), as it would be an inappropriate remedy to exclude them.

B.

The Person Sought [ 21 ] In a written “Notice of Infringement of Charter Rights’, dated September 17, 2012, learned counsel for Mr. ‘Isa served a notice on the Crown, alleging the breaches of Mr. ‘Isa’s Charter , ss. 7 , 10(b) , and 14 rights [see also para. 6 ]. [ 22 ] Mr. ‘Isa’s position is that while he was properly instructed by the police about his right to counsel, he did not have his full right to counsel because he had received only incomplete advice, was expected to call counsel back later in the afternoon, and that when his lawyer showed up at the police station he was denied access to his client. [ 23 ] Counsel for the person sought also points to a possible language barrier, and alleges that the denial of an interpreter was a breach of Mr. ‘Isa’s Charter , s. 7 protections, viewed through the filter of the Charter , s. 14 right to language

interpretation. In short, that it was unfair for the police to deny Mr. ‘Isa’s request for an interpreter and to make a value judgment that he was doing fine without one. [ 24 ] Learned counsel for the person sought also asserts that the police created an unreasonable fear of deportation and torture in

Mr. ‘Isa when they referred to him by his original name, rather than the name he used to leave his country and gain entrance to Canada. This, counsel asserts, makes the statement involuntary. [ 25 ] These breaches were egregious, and as a result the interviews should not be entered into evidence via Charter , s. 24(2) . Mr. ‘Isa argues that: 1. his counsel was lied to by the police, 2. Mr. ‘Isa asked to see his lawyer, and 3. Mr. ‘Isa asked for an interpreter. As the evidence obtained were incriminating oral statements the only appropriate remedy is exclusion.

Therefore, neither statement should be admitted as a part of the record of the case. IV. The Alleged Charter Breaches [ 26 ] I wish to deal with the arguments made by learned counsel for the person sought in turn. I note as a preliminary observation that Mr. ‘Isa’s counsel did not press the point, that aside from an alleged implied threat, that the statements taken from Mr. ‘Isa were factually voluntary. In any case, my review of the evidence negates any argument to the contrary. Simply watching the lengthy interview videos proves Mr. ‘Isa voluntarily cooperated with his interviewers. A.

Charter , s. 7 - the Right to Silence 1. The General Timeline [ 27 ] I begin with a time line overview of events on January 19-20, 2011. The majority of these events were recorded. These recordings were played in court for my review. [ 28 ] Mr. ‘Isa was arrested by the RCMP at his apartment around 9 a.m. January 19, 2011. The arrest was audio recorded. He was informed of his right of silence, and the reasons for his arrest and detention.

When Mr. ‘Isa expressed confusion, primarily about how this could be happening to him and not necessarily about what he was being told, the arresting officers repeated their advice, including his right of silence. [ 29 ] Mr. ‘Isa was expeditiously taken to an RCMP detachment at Sherwood Park, Alberta. He immediately was provided the opportunity to contact and retain legal counsel, which he did. By about 10:08 a.m., Mr. ‘Isa was engaged in a lengthy telephone call with his legal counsel - Mr.

Aloneissi, Q.C. [ 30 ] The lengthy confidential telephone conversation between Mr. ‘Isa and legal counsel was interrupted briefly, at Mr. ‘Isa’s request, so that Mr. Aloneissi could be briefed by Cpl. Ross on the nature of the jeopardy faced by Mr. ‘Isa. A printout of a sheet that Cpl. Ross used to brief Counsel became an exhibit. After that briefing, Mr. Aloneissi continued his private interview with his client. When the interview finished at around 10:55 a.m., Mr. ‘Isa advised the police he was finished and that he understood his legal rights. He also asked for an interpreter. None was provided. [ 31 ] Cpl.

Ross then began a lengthy three-part interview with Mr. ‘Isa: 10:58 a.m. to 2:01 p.m., 5:16 p.m. to 7:03 p.m., and 9:31 p.m. to 9:44 p.m. All interviews were video recorded, and include some breaks. Between the first, and second segment, Mr. ‘Isa had a lunch break and was booked into the station cells. During the interviews Mr. ‘Isa’s requests for cigarettes, coffee, bathroom, or water

breaks were all reasonably accommodated. [ 32 ] From my review of the recordings, the video reflects that at the end of the interviews Mr. ‘Isa was as composed as he was at the beginning. That is not to say he was without stress, as one would naturally expect in any police/citizen interview, but he was not exhibiting visible stress to any discomfort level or any stress that would appear to be affecting his mental state. In fact, one must agree with the Crown that for many parts of the interview it really appeared that Mr. ‘Isa was controlling the interview, not the other way around. [ 33 ] After Cpl.

Ross concluded his interviews with Mr. ‘Isa, the American authorities conducted a late night to early morning interview. RCMP Cpl. Greene was also present. This interview began around 11:30 p.m., with a re-briefing to Mr. ‘Isa about the right of silence and about his right to have an attorney present. When Mr. ‘Isa expressed some difficulty about these legal concepts in English, the American authorities had an Arabic “Miranda” warning ready to present to Mr. ‘Isa. Mr. ‘Isa then read and signed the warning, and expressed his satisfaction with this Arabic document.

Thereafter Mr. ‘Isa participated in this final interview, which was also video recorded, and in the presence of two American investigators. This interview concluded around 2:30 a.m. the following morning, January 20, 2011. [ 34 ] The American interview concluded with apparent exhaustion on the part of the Americans, and Mr. ‘Isa expressing some disappointment that they did not want to talk any longer. Mr. ‘Isa was then transported from the detachment to the Edmonton Remand Centre. Cpl. Green opines that Mr. ‘Isa still remained talkative and inquisitive even around 3:30 a.m. of that morning. 2.

Counsel for the Person Sought [ 35 ] While the interviews were underway, Mr. ‘Isa’s counsel, Mr. Aloneissi, and another lawyer, Nathan James Whitling attended the Sherwood Park RCMP station. Mr. Whitling is a member of another large Edmonton law firm who has had some expertise in dealing with extradited individuals accused of acts of terrorism. Mr. Whitling did not record any notes of his attendance but was able to give general information that coincides greatly with Cpl. Greene’s understanding of the attendance. Mr.

Aloneissi appeared at the Sherwood Park detachment, willing and wishing to talk to his client, if permitted, but also to inquire about his client. Mr. Aloneissi was told that his client was being interviewed, the interview would not be interrupted and that Mr. ‘Isa was not asking for Counsel. [ 36 ] Mr. Aloneissi did not insist on an interview or that Mr. ‘Isa’s questioning stop until he was able to speak with him in person. After a short attendance, counsel elected to withdraw and not wait until the interview was over to see their client. 3.

Conduct of the Interviews [ 37 ] The manner in which authorities interact with a detained person is relevant as to whether statements are made voluntarily. How was Mr. ‘Isa actually handled by the RCMP and the American authorities during the interviews? Since I have viewed recordings of these interviews I have a strong ability to assess the conduct of the detaining authorities and exactly what transpired. [ 38 ] First, I observe that both the RCMP interviewer, generally Cpl.

Ross, and the American authorities, as personified by Special Agent John Mazzella, made an effort to get Mr. ‘Isa talking by extending sympathetic friendship and understanding. They did not opt for aggressive, mind-bending, or demeaning tactics. Their approach, which was consistently followed through both interviews, was to give Mr. ‘Isa a platform to talk as they attempted - not always with success - to channel his discussion into areas where the interviewers sought clarification. [ 39 ] My observation and impression, having watched the entire video recordings of the interviews between Cpl.

Ross and Mr. ‘Isa, and later Mr. ‘Isa and Special Agent Mazzella, is that the various prohibited components of the contemporary confessions rule, as summarized in R. v. Oickle at para. 47 , simply do not exist in this instance. There is no evidence of any threats or promises, no evidence of oppression, and no appearance at any time that Mr. ‘Isa was not functioning with an operating mind. Any “trickery” used by the police to obtain a confession, if it can be described as such, was restricted to the authorities presenting themselves as sympathetic.

Nothing in the actual tapes of the interviews recorded leads me to conclude that Mr. ‘Isa was not talking voluntarily to the police.

[ 40 ] My second observation is that the law enforcement authorities sought to create an independent and corroborating record of their interactions with Mr. ‘Isa. In result, virtually the entire time from the arrest around 9:00 a.m. on January 19, 2011 to 3:30 a.m. on January 20 was the subject of some type of recording. These recording activities occurred in two ways. [ 41 ] RCMP Cpl. Greene, who handled Mr. ‘Isa’s arrest and supervised him during interview breaks, had a small digital recorder which was on virtually all of the time when Mr. ‘Isa and Cpl. Greene were together. Cpl.

Ross adopted a similar procedure. These digital recordings were played into court and the electronic disks marked as exhibits. [ 42 ] I accept that due to inadvertence or equipment malfunction there were some times when the digital recorders did not record, but these were small, time-limited exceptions, rather than the norm. Nothing turns on these gaps and the recording gaps were not identified as part of defence counsel’s argument. Out of an abundance of caution a transcript of the digital recording was provided to assist the court, and marked as an administrative exhibit.

Although the transcript is nearly accurate there is some transcription error, and some words not identified. [ 43 ] All of the interviews between Cpl. Ross and Mr. ‘Isa, and later Special Agent Mazzella and Mr. ‘Isa were videotaped. Thus there is both video and audio recording. These were played in court and the digital disks marked as exhibits. Transcripts (not certified) were provided to assist the court and were also marked as administrative exhibits. Some names of third parties were deleted from the video recordings, with the consent of counsel, to protect the persons named from risk of retaliation.

Since the interviews by the RCMP and the US authorities went on for over 10 hours, combined, they together with the audio digital recording of Cpl. Greene and Cpl. Ross cover a significant portion of the time that Mr. ‘Isa was in custody during the first 18 hours after his arrest. Nothing in the picture painted by both the recording and the video raises any concern to me that the discussion and statements by Mr. ‘Isa was anything but completely voluntary. [ 44 ] Another procedure adopted by the RCMP in this investigation was that Cpl.

Greene remained in the interview room with Mr. ‘Isa while the American authorities were conducting their interview. This step was to ensure that Mr. ‘Isa’s Canadian legal rights, as Cpl. Greene understood them, were not violated by the American investigators. [ 45 ] The last special approach taken in handling this investigation is that the RCMP minimized the contact that Mr. ‘Isa had with other members of the police services, and insured in this way that there would not be numerous witnesses required for the issues surrounding the voluntariness of the statements.

Thus, whenever Mr. ‘Isa wished to leave the interview room to go to the washroom or to have a cigarette, the halls were cleared of other nonessential personnel so that during the investigation Mr. ‘Isa’s contact with third-party police officers was reduced to a minimum. [ 46 ] Those contacts gave evidence. Cpl. Greene described the arrest, the transmittal to the RCMP station, and the time he spent with Mr. ‘Isa. Cpl. Ross gave details about his interaction with Mr. ‘Isa. Officers Michael Dmetrichk and Mark Osedowski discussed their time with Mr. ‘Isa, as they assisted both Cpl. Greene and Cpl. Ross.

All their testimony was consistent with each other, and the audio and video recordings. 4. In-Cell Plant [ 47 ] At one point in the afternoon, Mr. ‘Isa was booked into cells. The booking guard did not give evidence, but the tone of the cross examination and the fact that much of this communication was caught on Cpl. Greene’s audio recording leads to an inescapable conclusion that nothing flows from this interaction. [ 48 ] While in the cells at lunch, Mr. ‘Isa was offered a ham sandwich. That was part of a undercover role playing operation.

His cell mate at that time was an undercover RCMP officer who was sympathetic to his religious and cultural prohibition against consuming pork or pork products. The cell mate vociferously complained and Cpl. Ross brought Mr. ‘Isa a beef sandwich to further engender friendship. There is certainly nothing inappropriate about this role playing, nor did counsel pursue the issue in cross examination or argument. 5. Conclusion - the Right to Silence

[ 49 ] I find as fact that during the course of Mr. ‘Isa’s first day in custody, that is from the time of his arrest to the end of the interview conducted by the American authorities, he was treated fairly, decently, and appropriately. The authorities knew from historic phone monitoring and investigation that Mr. ‘Isa smoked and drank coffee. Smoke breaks and coffee breaks were nearly on-demand. When Mr. ‘Isa asked for water it was supplied.

He received meals and despite the length of the interviews they were broken up with reasonably frequent breaks. [ 50 ] The RCMP conceded in their evidence and I find as a fact that Mr. ‘Isa was not given any further opportunity to contact or meet with his lawyer, once his initial call with Mr. Aloneissi ended. Second, an interpreter was not provided for Mr. ‘Isa. This was intentional.

I will discuss the implications of both of these fact findings in the following legal analysis. [ 51 ] How did the police handle Mr. ‘Isa’s Charter , s. 7 rights, here specifically the implied right of silence? [ 52 ] Despite suggestion that the police may no longer have a positive duty to instructed detainees of their right to remain silence, I have already observed how ingrained this procedure is, and how reluctant police forces are to end that age-old practice. This case was no exception.

While the Charter does not specifically enumerate a right of a detained person to not speak to authorities, that protection has been considered to be a principle of fundamental justice. [ 53 ] In this instance, the police elected to inform Mr. ‘Isa of his right of silence over and above any concerns with his Charter , s. 10 rights, including the right to counsel. Mr. ‘Isa was advised at least four times about his right of silence. [ 54 ] Cpl Greene twice gave this warning immediately following Mr. ‘Isa’s arrest. Cpl. Greene’s first recorded words were: Do you wish to say anything?

You are not obliged to say anything unless you wish to do so, but whenever you say may be given in evidence. Do you understand that? When Mr. ‘Isa expressed some difficulty with the concept Cpl. Greene re-explained that Mr. ‘Isa had no obligation to speak. At that point Mr. ‘Isa indicated that he did understand that, but expressed confusion about the reason for his arrest and why the police would want to have anything to do with him.

I conclude that what Mr. ‘Isa was concerned about was not his comprehension of his right of silence, but maintaining his posture that what he did not understand is why the police were bothering him. His confusion did not relate to his legal rights but was either sincere bewilderment, or contrived bewilderment, at how he, as a Canadian living in Edmonton could be a suspect in terrorist activity in another country. [ 55 ] These warnings continued during the interviews. It is clear that Mr. ‘Isa disclosed to the investigating officers that his lawyer told Mr. ‘Isa that he did not have to say anything.

To reinforce this Cpl. Ross reiterated the same cautionary warning at the commencement of his interview. This was a time when the parties were early in their relationship. No misunderstanding of the right of silence appears evident from the video. [ 56 ] The same thing happened at the interview with American authorities. Special agent Mazzella from the United States reemphasized the right of silence which is a part of the standard “Miranda” warning required as a prerequisite for evidence to be admissible in the United States.

Not only was the “Miranda” warning given to Mr. ‘Isa in English, a backup copy written in Arabic was given to him which he then signed. [ 57 ] Counsel for the person sought identifies one particular point in the interview process that, allegedly, rendered that activity involuntary. This issue revolves around the fact that the RCMP revealed at one point to Mr. ‘Isa that they knew his real name - a different name from that he had assumed while in Canada. The RCMP played this card in the interview because Mr. ‘Isa’s initial approach was to encourage them to conclude that they had the wrong man.

What I understand is that Mr. ‘Isa borrowed the name of one of his relatives when he came to Canada. Learned counsel for the person sought raises an interesting and courageous argument. He says that once the police authorities revealed to Mr. ‘Isa that they knew his real name this would engender a genuine fear in the Mr. ‘Isa that, due to immigration dishonesty, he would be deported back to his homeland and then be tortured. The argument is that this revelation was

an implied threat. [ 58 ] Mr. ‘Isa did have an apparent change of attitude when it was revealed that his true identity was known to the police. He indicated that “now you’re scaring me”. This then raises a proposition about whether fear engendered by the truth could amount to fear and oppression that would make an otherwise voluntary statement involuntary. The argument is courageous but is knocked down by the fact that what the police were revealing to Mr. ‘Isa was the truth as they understood it.

Any suggestion that the identification of Mr. ‘Isa’s true identity would lead to automatic deportation back to a country of reputed torture tactics is pure speculation. Real evidence of this would have to be produced. It was not, and the result is this argument goes no further. [ 59 ] Some cases recognize that deliberate falsehoods in police investigation may render a statement inadmissible.

Nevertheless, I am unaware of any case where the opposite is true, that is the fear of the truth renders a statement inadmissible. [ 60 ] Here, the police did nothing more than reveal to Mr. ‘Isa that they had knowledge of his real name, which was not the name that he used to get out of his homeland or immigrate to Canada. I see nothing wrong with playing that card. The fact that this conduct made Mr. ‘Isa fearful was probably a reflection that the police really did know more about him than he would have liked.

He also probably realized that this was a real investigation and not, in his joking words, a “candid camera” episode. I must reject this argument that revealing the truth to Mr. ‘Isa created a climate of fear rendering a statement inadmissible. [ 61 ] The modern version of the rules relating to voluntariness have been expressed by the Supreme Court of Canada in R. v. Oickle . Here I found as a fact that Mr. ‘Isa’s statements were voluntary, and therefore it follows that my legal analysis must be to confirm that Mr. ‘Isa spoke with the police on an informed and voluntary basis.

Thus, the Crown has proven beyond a reasonable doubt that Mr. ‘Isa voluntarily spoke with both the Canadian and U.S. law enforcement authorities. [ 62 ] The interviews were lengthy, with ample time to break the will of a detainee. This normally requires that a court very cautiously look for a ‘psychological grinding down’ of the detainee, to the point where the detainee’s will is bent. Here, factually, Mr. ‘Isa appeared to end the long day as mentally strong as he started.

I have already commented on the fact that at the end of the interview with the American authorities he seemed to express some disappointment that they were going to stop talking to one another. Despite the length of the interviews , mere duration alone raises no issue. [ 63 ] In conclusion, I am satisfied that the police authorities fairly and appropriately advised Mr. ‘Isa of his right of silence and reminded him of it before they commenced each interview. Mr. ‘Isa participated in all interviews voluntarily. B. Charter , s. 10(b) - Right to Counsel [ 64 ] The RCMP also advised Mr. ‘Isa of his Charter , s. 10(

b) rights shortly after his detention. That includes his opportunity to retain and instruct counsel without delay, to obtain legal advice, and the ability to resort to legal aid if necessary. Mr. ‘Isa was provided the appropriate and typical phonebook and phone room. In addition, Cpl. Ross focussed Mr. ‘Isa’s attention on the desirability that he hire a criminal defence lawyer. [ 65 ] My conclusion, which is uncontradicted by any evidence, is that Mr. ‘Isa had a full opportunity to retain and instruct counsel without delay. Much of what occurred, other than the privileged communications, was recorded.

When Mr. ‘Isa expressed to Cpl. Ross that he did not know any lawyers Cpl. Ross assisted Mr. ‘Isa by pointing out the criminal defence lawyers in the Yellow Pages. He did not steer Mr. ‘Isa to the Beresh law firm but he did fairly say that the law firm has a good reputation. Mr. ‘Isa was free to phone anybody he wanted but he ended up on the phone to Mr. Aloneissi. Cpl. Ross was reconciled to the fact that Mr. ‘Isa was entitled to legal representation and good representation at that. [ 66 ] Shortly after his arrival at the Sherwood Park RCMP station Mr. ‘Isa had private communication with a lawyer.

This communication commenced approximately 10:08 a.m. on the day of the arrest, and continued until 10:55 a.m. The choice of Mr. Aloneissi by Mr. ‘Isa was profoundly appropriate. It was accepted in evidence that Mr. Aloneissi speaks Arabic. It was also given in evidence that Mr. Aloneissi is a Queen’s Counsel with over 20 years legal experience. He is used to dealing with persons in custody, and is a senior partner in a law firm recognized as one of Alberta’s premier criminal defence law firms.

Of all of the lawyers and law firms that Mr. ‘Isa could have picked, through good luck, or perhaps the mere reality that senior partner Mr. Beresh falls early in the alphabet, Mr. ‘Isa reached Mr. Aloneissi.

[ 67 ] The length of the interview indicates these lawyer/client communications were neither rushed nor inappropriately short, particularly given the serious nature of the issues between Mr. ‘Isa and law enforcement authorities. Further, learned counsel was fully briefed on the jeopardy Mr. ‘Isa faced before he concluded his advice to Mr. ‘Isa. At one point Mr. ‘Isa beckoned Cpl. Ross into the interview room by signalling him through the soundproof observation glass. Mr. ‘Isa indicated that the lawyer wished to speak to Cpl. Ross. At that point Cpl. Ross gave Mr.

Aloneissi a detailed briefing about the jeopardy that Mr. ‘Isa was facing. [ 68 ] The briefing sheet had been prepared in advance of Mr. ‘Isa’s arrest and outlined the dual investigations by American and Canadian authorities, that there was a provisional warrant of arrest for Mr. ‘Isa at the request of the American authorities, and developed some detail of the allegations. I have reviewed that document and conclude that

summary is fair. I am satisfied that any advice that Mr. Aloneissi would have given Mr. ‘Isa was shaped by his knowledge of the case as explained to him by Cpl. Ross. Once this explanation was provided Cpl. Ross left the room. The phone interview between client and lawyer continued in private for another 20 minutes. [ 69 ] My conclusion about the access to counsel that occurred here is that it represents, from the concept of phone access, a gold standard. You have a client facing an unusual procedure who links up with a criminal law specialist who speaks his first language.

A phone interview is conducted on a non-rushed basis during regular office hours, where the length of the call was completely controlled by the client and the lawyer. Direct important and relevant information was provided to the lawyer. An explicit record was kept of what information was provided.

At that time of the day Mr. ‘Isa was not suffering any discernable physical or mental limitation that would make the advice illusory, and there is neither evidence nor suggestion that legal counsel who was at that time at work was unable to impart case appropriate, timely, and competent advise. [ 70 ] It would be speculative and inappropriate to guess what this client and competent lawyer discussed, but there is at least one clue. After the interview between client and lawyer, Mr. ‘Isa made very clear to the police officers that he had been advised that he did not have to speak to them.

During the subsequent opening interview which took place between Mr. ‘Isa and Cpl. Ross, Cpl. Ross spent considerable time going through the details of what the investigation was all about. He again reminded Mr. ‘Isa that Mr. ‘Isa did not have to speak to the police. [ 71 ] I conclude that the first telephone interview between Mr. ‘Isa and Mr. Aloneissi discharged the post-detention Charter , s. 10(

b) requirement for access to counsel. Mr. ‘Isa had this opportunity to exercise his Charter , s. 10(

b) rights and that led Mr. ‘Isa to contact Mr. Aloneissi. There appears to be no issue raised about the quality, manner, or opportunity that was presented to Mr. ‘Isa at this point. Counsel’s significant concern, as expressed in their written material and oral argument, is that the access was limited only to the one phone call. Mr. ‘Isa’s counsel likens this to the Hollywood stereotype of an entitlement to one call and argues that the concept of ‘one call’ does not exist in Canadian criminal law. I will now discuss this issue. [ 72 ] First, the procedure in the United States and Canada is not the same.

The American “Miranda” rights may give someone the right to counsel throughout an interview, but that is not a right equally shared in Canada. The right in Canada is to have an opportunity to promptly retain and instruct counsel as set out in

section 10(

b) of the Charter . [ 73 ] Three recent Supreme Court of Canada cases address this right, and whether it continues after the post-detention opportunity to consult and retain counsel: R. v. Sinclair , R. v. McCrimmon , and R. v. Willier . The R. v. Sinclair case is particularly relevant, and at para. 47 makes clear that once an individual has had access to counsel, further “counsel on demand” opportunities are not required to preserve Charter compliance:

Section 10(

b) should be interpreted in a way that fully respects its purpose of supporting the detainee’s s. 7 right to choose whether or not to cooperate with the police investigation. Normally, this purpose is achieved by a single consultation at the time of detention or shortly thereafter . This gives the detainee the information he needs to make a meaningful choice as to whether to cooperate with the investigation or decline to do so.

However, as the cases illustrate, sometimes developments occur which require a second consultation, in order to allow the accused to get the advice he needs to exercise his right to choose in the new situation . [Emphasis added.] [ 74 ] The Court goes on to observe that a second consultation may be appropriate in three scenarios: 1. a “new procedure” that involves the detainee is going to occur; the Supreme Court of Canada indicates these are “non-routine

procedures”, such as an in-person lineup or administration of a polygraph test (para. 50); 2. a “change in jeopardy”, which is the emergence of a new and more serious legal risk to the detainee (para. 51); and 3. that authorities conclude that the detainee has misapprehended his Charter , s. 10(

b) right to counsel or not had an adequate opportunity to exercise that right (para. 52). [ 75 ] There is no suggestion of a “new procedure”. Factually in this case there was neither a change of jeopardy nor is there any evidence that suggests that there was inadequate access to counsel or that the advice given was inappropriate or not understood. I conclude that with the facts of this case, the single consultation shortly after detention appears to qualify as adequate and appropriate exercise of Mr. ‘Isa’s Charter , s. 10(

b) rights. [ 76 ] I reiterate several observations in coming to this conclusion: 1. the style, manner, and timing of the consultation, 2. the detailed explanation Cpl. Ross gave to learned counsel of the case against his client, and 3. the revelation about the rights Mr. ‘Isa gleaned from the interview. Although, from time to time, Mr. ‘Isa would repeat the request for a lawyer these requests were short-lived, not persisted, and the interview went on. Further, the Supreme Court of Canada has been explicit that no rights flow from any demand of that kind: R. v. Sinclair , at para. 2 ; R. v.

McCrimmon , at para. 3 . [ 77 ] Counsel for the person sought raises some collateral issues to embellish this argument that Mr. ‘Isa’s Charter s. 10(

b) right was breached. The first is the fact that counsel showed up in person. Bluntly, that is irrelevant, unless counsel indicate that this appearance means that the initial telephone consultation was inadequate, and that fact was communicated to police. While the appearance by counsel at the police station is certainly tangible evidence that a client/lawyer relationship has been forged, mere attendance in and of itself does not warrant or entitle other detainee/lawyer meetings.

It is speculative to assume physical appearance by counsel raises proof on a balance of probabilities that the former advice received was incomplete or inadequate. [ 78 ] The police are entitled to conduct their investigation and to interview a detainee once his s. 10(

b) rights have been provided. Nor is the fact that there was going to be follow-up calls between lawyer and client at 2:00 p.m. relevant of the issue, unless that too is communicated to police authorities as indication that the initial consultation was inadequate or incomplete. [ 79 ] At no time did Mr. ‘Isa indicate that he had received only an incomplete explanation of his legal rights at the initial consultation, or that those communications were interrupted and were intended to be continued. To the contrary, after the interview he said “I’m finished”.

The suggestion that a proposed follow-up phone call at 2:00 p.m. can lead to a factual conclusion that there was a failure to fully inform Mr. ‘Isa of his legal rights is neither supported by the evidence, nor plausible after extended consultation with expert legal counsel. [ 80 ] Finally, counsel suggests that they were lied to by Cpl. Greene when they were told that Mr. ‘Isa was not asking about a lawyer. There may have been confusion in what was being asked and answered. There is no evidence that around the time the lawyers showed up Mr. ‘Isa was asking for them. Cpl.

Greene may have taken the question out of context. In observing Cpl. Green on the witness stand he strikes me as an experienced officer with integrity. I do not believe that he intentionally lied to legal counsel, but he may have misunderstood their question.

[ 81 ] In any case, any alleged misstatement is irrelevant to Mr. ‘Isa’s Charter , s. 10(

b) rights. The Supreme Court of Canada has not indicated that renewed demands for a lawyer are a basis for a second consultation. I note that in R. v. Sinclair , at para. 58 , the majority explicitly conclude that a ‘demand for a lawyer’ should not be a tactic available to delay or frustrate investigation: ...

The purpose of the right to counsel is not to permit suspects, particularly sophisticated and assertive ones, to delay “needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence to be lost, destroyed or [for whatever reasons, made] impossible to obtain” ...

Logically, that would be equally true where the ‘demand to consult’ comes from the lawyer, rather than the person detained. [ 82 ] Further, that decision does not sanction instances where investigators promise renewed access to counsel: The police, of course, are at liberty to facilitate any number of further consultations with counsel. In some circumstances, the interrogator may even consider it a useful technique to reassure the detainee that further access to counsel will be available if needed . For example, in the companion case of R. v.

Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429, a skilled interrogator commenced the interview by making it clear to the detainee that he would be free at any time during the interview to stop and call a lawyer . The question here is when a further consultation is required under s. 10(

b) of the Charter . ... [Emphasis added.] [ 83 ] Recently, Yamauchi J. in R. v. Briscoe , 2012 ABQB 111 , 255 C.R.R. (2d) 37 considered the related question of whether police investigators have an obligation to provide access to a lawyer after having promised that access. He concluded at para. 119 that no such right exists, and I agree. [ 84 ] I therefore conclude that this case parallels R. v. Sinclair where the majority found that a detainee’s Charter , 10(

b) rights had not been violated even though Mr. Sinclair did from time to time request the presence of a lawyer. C. Right to a Translator [ 85 ] The last question is whether Mr. ‘Isa’s Charter , s. 14 right was breached when he was not provided an interpreter, and that makes an otherwise voluntary statement inadmissible. The person sought has the burden to raise at least on a balance of probabilities that Mr. ‘Isa’s

section 7 rights were affected negatively by the failure of the police to provide him an interpreter.

Learned counsel’s argument is an enhancement of a s. 7 breach as coloured by the s. 14 right to have an interpreter at trial: [ 86 ] First, I note that the Charter does not globally provide for a right of translation, but rather that a right to interpreter exists in a trial context: A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. [Emphasis added.] [ 87 ] The Charter , s. 14 protects a person’s right, in appropriate circumstances, to an interpreter at a trial in the interest of a fair trial .

The legislature did not extend this right to an investigative procedure, however, I am not prepared to rule out a circumstance where the failure to provide an interpreter could lead to a breach of Charter , s. 7 , even at the interview stage. Translation or communication support would be context specific, as well restricted to instances where the person detained was not able to functionally communicate with authorities. [ 88 ] Did Mr. ‘Isa need a translator to communicate with the authorities with whom he spoke?

Here, there was no specific evidence of a language barrier on the part of Mr. ‘Isa except what one can glean from the recordings. I have reviewed those in detail. While Mr. ‘Isa does not speak English as a first language, his command of the language is nevertheless impressive. I also accept that individuals

who speak English as a second language may have trouble with sophisticated legal concepts, as these are not part of everyday life. However, I watched Mr. ‘Isa for over 10 hours communicate with police investigators on a video recorded basis. He appeared able to understand the questions he was posed. He was able to answer appropriately to the questions asked and where he was confused or uncertain, he had no hesitation to ask for language clarification. [ 89 ] The evidence discloses that Mr. ‘Isa had been in Canada for a long time. He had lived in Toronto and Edmonton, both English-speaking communities.

He appears to have a good grasp of the English language. He has had relationships and friendships with individuals not conversant in Arabic. He has sufficient mastery of the English language that he is able to joke in English and he understands local slang.

Not only does Mr. ‘Isa have a good handle on the English language, his requests for an interpreter were never pursued or followed up and he showed no reticence to talk about his situation with the police, even after they made clear that no interpreter would be provided. [ 90 ] When Mr. ‘Isa was not sure of a concept he was quick to ask for clarification about words that he did not understand. There was simply no significant time during which Mr. ‘Isa appeared to be incapacitated because of a language barrier. Quite the contrary the interviews reflect an individual attempting to exonerate himself.

First, he suggested the police had the wrong person. When that approach failed, he provided an innocent explanation of his conduct. In pursuing these objectives, Mr. ‘Isa’s communication in English is fairly fluent and very fluid. [ 91 ] Mr. ‘Isa does not exhibit the tendencies of an individual who has been schooled formally in a language, but has mastered little of the nuances in utilizing that language. Even at the moment of his arrest this comes into play.

Mr. ‘Isa asks the police about whether they are sure that they have the right person and in a joking manner asks if this is some type of “Candid Camera” trick. That is not the response of a person who has no comprehension of the events then underway. There is no basis to infer that Mr. ‘Isa’s Charter rights were violated by the police turning aside his lightly pursued request for an interpreter.

He was able to functionally communicate with those by whom he was held, and he understood what was going on. [ 92 ] I conclude that Mr. ‘Isa’s request for interpreter was likely his incorporation of a suggestion made to him by legal counsel, recognizing that English was not his first language, or alternatively that this request was an attempt by Mr. ‘Isa to give himself a language advantage. The police did not have to succumb to this request.

There is no legal obligation based on the Charter as it has been interpreted to date that guarantees the right of an interpreter during police questioning, simply because the interview is conducted in the detainee’s second language. Here, based on these facts I am not prepared to extend s. 7 to this scenario. D. Conclusion [ 93 ] I conclude that, despite their length, all of the statements made by Mr. ‘Isa to the RCMP, and the American authorities would be admissible at a Canadian trial. The statements were voluntary, and the person sought has not established on a balance of probabilities any Charter breach.

Despite this and in the event of appellate review I wish to test the alleged Charter breaches against the direction from the Supreme Court of Canada in R. v. Grant and perform a Charter , s. 24(2) analysis as to the appropriate remedy. V. Charter , s. 24(2) [ 94 ] Charter , s. 24(2) permits a court to admit evidence obtained in breach of a Charter right in certain circumstances. The test for this analysis was recently reviewed by the Supreme Court of Canada in R. v. Grant . That case made clear to judges that a s. 24(2) analysis is required in every case where a Charter breach is said to have occurred.

This is because not every proven Charter breach will result in the exclusion of evidence. Although I have not found that a Charter breach occurred I make some comments about whether an order of exclusion would have followed, even had I found one or more Charter breaches. [ 95 ] In R. v. Grant , at para. 71 the majority identified three criteria which drive this analysis: 1. an analysis of the seriousness of the Charter infringing conduct, 2. the impact of the breach on the Charter -protected interests of the accused, and

3 society’s interest in the adjudication of the case on the merits. A. Failure to Provide

Interpretation [ 96 ] The first alleged Charter breach was the failure to provide an interpreter where, with the benefit of hindsight, one should have been provided. I am satisfied that Mr. ‘Isa was aware of his right of silence. During the American interview he even signed a document in Arabic confirming this fact. [ 97 ] The language concerns may take on more significance when a trier of fact views the statements in the context of the weight to be given to them.

Any risks that the law enforcement authorities have about Mr. ‘Isa explaining away some of his comments as being a misunderstanding do not go to the issue of voluntariness or Charter compliance. Here the police concluded that an interpreter was not warranted because their detainee appeared to be communicating effectively. [ 98 ] If the police erred in depriving Mr. ‘Isa of an interpreter, then they did so in good faith. There is no recognized Charter or statutory right to an interpreter being present during a police interview.

I can only conclude that the relevance of a language barrier that would involve Charter , s. 7 rights is that communication difficulty would result in involuntary statements or a failure to understand a person’s rights, such as the s. 10(

b) right to counsel. Otherwise, there is no stand alone need for communication assistance. I observe that Cpl. Ross and Mr. ‘Isa actually talked through the interpreter issue and agreed to carry on. Therefore, even if this was a Charter breach, (which I have specifically found it not to be) it would not be serious or intentional misconduct on the part of state authorities. [ 99 ] The second part of the R. v. Grant analysis requires a study as to whether a prevention of the breach would have made any difference. That is, did the breach lead to obtaining evidence that would not otherwise have been obtained.

I observe the during his interviews Mr. ‘Isa could hardly be contained. He talked frequently and enthusiastically, almost like a gushing fountain. He would not be deterred from explaining his conduct. [ 100 ] The lack of an interpreter would have made no difference. In the unique context and circumstances in this case, Mr. ‘Isa, despite having received proper legal advice and informed about his right of silence, elected to build his defence in the police interviews. He started by attempting to repudiate his identity as not being the person that the police were looking for.

When confronted with his real name he quickly changed tactics taking the position that what he said was all ‘hot air’, or some form of religious doctrine. [ 101 ] The police simply let Mr. ‘Isa talk and he obliged them. In most instances where a detainee gives statements, it is reasonable to infer that their disclosures were the consequence of the breach of a Charter right, otherwise their lips would have been sealed. That is not an absolute proposition. Here, there is absolutely no reason to make that assumption, it is proven intuitively incorrect when one carefully watches Mr. ‘Isa in the video interviews.

Mr. ‘Isa had a communication plan and he pursued his plan. [ 102 ] The last R. v. Grant factor revolves on the seriousness of the misconduct, and the role of the evidence in the case against an accused person. Mr. ‘Isa is charged with conduct which, if true, is extremely troubling. It is said that he assisted citizens of one country enter the country of his birth, and become suicide bombers. There is no societal interest in preventing the adjudication of this case on its merits. The evidence should not be excluded. B.

Inadequate Opportunity to Consult Counsel [ 103 ] The second alleged breach was that Mr. ‘Isa should have had more access to counsel, or perhaps counsel in attendance at the American interview. I conclude that, as with the absence of an interpreter, more access to counsel would have made no difference. [ 104 ] I note that Mr. Aloneissi has not argued that his initial consultation with Mr. ‘Isa was inadequate, perhaps only incomplete or to be continued. Mr. ‘Isa never expressed a concern on that point during his interviews.

If a defect in the person sought’s access to counsel exists, it occurred at some later point.

[ 105 ] There is clearly no Canadian right to counsel during police interviewing. Where this occurs it is by negotiated agreement. If a future need arises for an American court to determine whether Mr. ‘Isa’s “Miranda” rights were violated, it will be for that court to decide. Since we have not expanded this right to detainees being interviewed in Canada for charges which will be prosecuted in Canada, expanding this right to give it to persons sought for the purpose of extradition raises public policy concerns and is contrary to common sense. [ 106 ] Cpl.

Ross concluded that Mr. ‘Isa’s jeopardy did not change through the entire interviews and also concluded that he felt that Mr. ‘Isa did receive adequate and comprehensive legal advice as provided by the Charter . Cpl. Ross did not act in bad faith nor did Cpl. Greene. Nor is it bad faith to refuse counsel an attendance with his client and thereby interrupt an ongoing interview simply because the lawyer attends at the police station. [ 107 ] I conclude that the RCMP did not act in bad faith in denying Mr. Aloneissi contact to his client when they were in the interview. It is true that the RCMP indicated to Mr.

Aloneissi that his client was not asking for a lawyer. Mr. Aloneissi asserts that the officers lied to him, which is in and of itself bad faith. Cpl. Greene was of the view that at that time Mr. ‘Isa was not asking for a lawyer. I earlier noted that I found Cpl. Greene to be fair in his dealings with Mr. ‘Isa and I would not subscribe bad faith to him.

I therefore rate the seriousness of the Charter infringing conduct, if any had been found, to be low and limited. [ 108 ] As with the question of translation services, I do not think further participation by counsel would have affected Mr. ‘Isa’s interrogation strategy. As previously noted, the alleged misconduct is of a most serious kind, as is society’s interest in the prosecution of offences of this kind. I therefore conclude that if Mr. ‘Isa’s Charter , s. 10(

b) right to counsel was infringed, then that is not a basis to exclude the interview evidence. C. Conclusion [ 109 ] Although I have found there were no Charter breaches, this follow-up analysis to identify the proper remedy reveals that despite the evidence sought to be excluded being actual statements from the person sought, the alleged breaches, even if established on a balance of probabilities, would not lead automatically to an exclusion of the evidence. To the contrary, the three-part R. v. Grant analysis might well result in those statements being included. VI.

Ruling [ 110 ] The Crown has proven beyond a reasonable doubt that the statements made by Mr. ‘Isa on February 19-20, 2011 were voluntary. The person sought has not raised a Charter breach on a balance of probability. Finally an independent Charter , s. 24(2) analysis might not result in the exclusion of the statement. Heard on the 25 to 29 st day of September , 2012. Dated at the City of Edmonton, Alberta this 19 st day of October, 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 _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice A.W. Germain _______________________________________________________ Paragraph 30, line 3 has been changed from “...the nature of the jeopardy facing Mr. Aloneissi.” to “...the nature of the jeopardy faced by Mr. ‘Isa.”