2024 QCCA 164, 2024 QCCA 164

Attorney General of Canada (Republic of Albania) c. Brahimi 2024 QCCA 164 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-008126-235 ( 500-36-010484-239 ) MINUTES OF HEARING DATE: February 8, 2024 THE HONOURABLE PETER KALICHMAN, J.A. APPLICANT COUNSEL attorney general of Canada, on behalf of the Republic of Albania Mtre ERIN MORGAN ( Department of Justice – Canada ) Absent RESPONDENT COUNSEL ëngjëll Brahimi Mtre ANDREW BARBACKI Mtre JORDAN TREVICK Absent DESCRIPTION: Motion for leave to appeal from an order of discharge on a ground that involves a question of mixed fact and law (Sections 49(

b) and 55 of the Extradition Act ). Clerk at the hearing : Anne Dumont Courtroom: RC-18 HEARING

9:38 Commencement of the hearing. Continuation of the hearing held on February 7, 2024. The parties were excused from appearing in Court. BY THE JUDGE: Judgment – see page 3. Conclusion of the hearing.

Anne Dumont, Clerk at the hearing JUDGMENT [ 1 ] The Applicant seeks leave to appeal from a judgment of the Superior Court, District of Montreal (the Honourable Alexandre Boucher), denying the committal for extradition of the Respondent and ordering his discharge. [1] [ 2 ] In 2001, the Respondent was found guilty in absentia by an Albanian court of premeditated murder due to vengeance, murder committed in other specific circumstances, attempted murder, and illegal possession of firearms. [ 3 ] The Republic of Albania seeks his extradition for the imposition of a sentence. [2] [ 4 ] The Applicant seeks leave to appeal on grounds that involve mixed fact and law ( s. 49(

b) of the Extradition Act ). [ 5 ] In determining whether leave should be granted, I must consider whether the appeal has merit and whether an injustice might result from denying leave. [3] [ 6 ] The issue before the judge was whether the evidence demonstrating that the Respondent was the perpetrator of the crime was sufficiently solid to warrant committal. The judge recognized that cases where identification evidence is so unreliable that it should not be put to a jury “are rare.” Nonetheless, he concluded that this was such a case.

In his view, “the identification evidence in support of the extradition request, even if accepted, could not reasonably support a finding of guilt beyond a reasonable doubt”. [4] [ 7 ] He added that even if he had concluded that the evidence was sufficient to be submitted to a jury, he would still have denied committal under the discretionary power recognized in United States of America v Ferras [5] and M.M. v United States of America [6] since the evidence is so “manifestly unreliable that it would be unsafe or dangerous to act on it.” [7] [ 8 ] The Applicant submits that the judge exceeded his jurisdiction by assessing the ultimate reliability of the evidence and points to paragraph 71 of the judgment as an illustration of this error.

The Applicant also argues, referring specifically to paragraph 74 of the judgment, that the judge erred by applying Canadian evidentiary standards to foreign-gathered evidence. Finally, the Applicant submits that even without the evidence that the judge determined to be manifestly unreliable, there was still sufficient evidence to commit the Respondent. [ 9 ] The question of whether the judge exceeded the “limited weighing” [8] function of an extradition judge in his assessment of the evidence will be left to a bench of the Court.

Assuming that the applicant is correct that the errors raised involve mixed questions of fact and law as opposed to questions of law alone – in which case leave would not be required [9] – I am satisfied that the appeal has some merit and that an injustice may result from denying the motion. FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] GRANTS the motion for leave to appeal. PETER KALICHMAN, J.A.