R. v. Sadeghi-Jebelli, 2011 ONCJ 70

COURT FILE No.: Toronto Region Citation: R. v. Sadeghi-Jebelli , 2011 ONCJ 70 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) J. Smith, ) for the Crown ) — AND — ) ) ) GHOLAM SADEGHI-JEBELLI ) L. Hochberg, ) for the accused ) ) ) ) HEARD: February 7, 10, 14, 2011 FELDMAN J.: Background [ 1 ] Gholam Sadeghi-Jebelli is in custody having been arrested on a Canada-wide warrant and extradited, following a contested hearing, from Brussels, Belgium, on 1995 charges of Abduction of a Child Under 14 and Disobey Court Order. He seeks release on bail.

Given the seriousness of these charges and his personal circumstances he has called evidence to answer very real primary ground concerns, set out in Code s. 515(10)(b). Although he was convicted in 1990 of Personation and in 1994 of Threaten Death and Assault Police, the Crown does not press the secondary or tertiary grounds. As a non-resident, Mr. Sadeghi-Jebelli must bear the burden of a reverse onus. [ 2 ] The applicant is 47 years old. He immigrated to Canada from Iran in 1987 as a political refugee. He was employed for the most part by one of his proposed sureties.

He had a relationship with Madonna Cantwell, the complainant in these charges. They had a son, Paul, but separated soon thereafter. Mr. Sadeghi-Jebelli had informal consent custody of his son from the time he was 6 months old in 1991 and court ordered custody since April 15, 1993, with access to the mother. [ 3 ] However, on May 11, 1995, Ms. Cantwell obtained a family court order granting her interim custody. The applicant was to turn over the child on June 6 th . He did not do so having sent Paul to live with his parents in Iran the previous December.

It is not clear if he had notice of the custody application before he sent his son out of the country. Failing, himself, to appear in court, Mr. Sadeghi- Jebelli was found in contempt. On July 15 th , a Canada-wide warrant was issued for his arrest. He had already left the country. [ 4 ] Paul had no communication with his father from shortly after his arrival in Iran until 2006. He was returned to Canada with his father’s help in February of 2007 to avert his induction into the Iranian army.

Never having had a Canadian passport, the Applicant was unable to accompany his son. [ 5 ] After arriving here, Paul lived with an uncle, an older brother of the Applicant. He was able to locate his mother through Child Find and then lived with her in Hamilton, Ontario, for some time. Ms. Cantell suffers from some undefined mental illnesses possibly related at least in part to the loss of her son. [ 6 ] Paul subsequently boarded with a foster family. He now resides with Mr. Sadeghi-Jebelli’s younger brother, Mehdi, himself a recent political refugee. [ 7 ] Paul’s return ignited police interest in this case.

The authorities contacted Interpol to act on the arrest warrant in the event the Applicant sought return here to be with his son. At the time he was a political refugee in Belgium. He was arrested at the Brussels airport on his return from a family visit in Turkey. [ 8 ] Mr. Sadeghi-Jebelli was extradited to Canada from Brussels on January 17, 2011. He has neither a Canadian, nor EU passport, although he has temporary status here until July in contemplation of his pending trial on these charges. The Mojahedin Khalq Organization [ 9 ] As noted earlier, Mr.

Sadeghi-Jebelli left his son with his own parents and went for military training in Iraq with the Mojahedin Khalq Organization [hereinafter MKO], a political group dedicated to the overthrow of the Iranian Islamic Republic government, and to whose principles he had been dedicated since 1979.

It has been designated a terrorist organization in both Canada and the U.S. [ 10 ] In his testimony, most of which is uncorroborated and must be viewed sceptically in relation to a ‘trustworthy and credible’ standard, the applicant said he became disillusioned with the group’s violent tendencies and the requirement he participate in terrorist acts, unlike his earlier role as a recruiter and fundraiser.

He told the court he was incarcerated early on in 1997 as a dissident until 2006 when he was able to become a ‘protected person’ under American auspices following the invasion of Iraq that ultimately facilitated his return to Iran with the assistance of the Red Cross. There, he was able, with the payment of bribes, to spirit his son, a Canadian citizen, out of that country and back to Canada. There is a degree of objective support in the evidence for this.

[ 11 ] In this regard, I have reviewed materials on the MKO published by Human Rights Watch [hereinafter HRW], an established NGO. It describes this organization as an urban guerilla group that fought against the former Shah of Iran, participated in the 1979 Iranian Revolution and now is focused on the armed overthrow of the present Iranian regime. It is presently lobbying Western politicians to have its designation as a terrorist organization removed.

The Applicant was part of that campaign. [ 12 ] Forced into exile by the Ayatollah Khomeini regime in 1981, the MKO settled into military camps across the border in Iraq, receiving financial and logistical support from that government, and from where it made incursions into Iranian territory. With the fall of Saddam Hussein, the U.S. military disarmed the MKO fighters, recognized them as ‘protected persons’ and confined them inside Camp Ashraf. [ 13 ] HRW interviewed some of these former members and documented how the MKO treated those who held dissenting opinions or expressed an intent to leave the organization.

In this regard, it reported abuses ranging from detention and persecution of ordinary members wishing to leave the organization to lengthy solitary confinements, severe beatings and torture of dissident members, some of whom were held in internal prisons. [ 14 ] This information tends to back up the applicant’s explanation for his decade-long absence from his family, further supported by evidence he tendered of a July 9, 2004 agreement he signed with the MKO in which he was offered release from its control and protection in return for his promise to comply with certain conditions set down by the United Nations.

In addition, I rely on a copy of a letter, dated July 21, 2004, from the Deputy Commanding General of the U.S. army in Iraq recognizing the applicant as a protected person under the Fourth Geneva Convention. The Testimony of Gholam Sadeghi-Jebelli [ 15 ] The applicant’s story reads like fiction. He is a man who has devoted himself to a political cause. His family has paid a steep price for his life in the shadows. He appears at times to have operated by stealth and deceit. I think it likely he has sanitized the nature of his work for this designated terrorist organization.

I also draw the inference from the evidence that he has been incarcerated by the MKO and that his life bears some risk should he return to Iran. [ 16 ] Mr. Sadeghi-Jebelli told the court he was incarcerated in Iran from 1981-86 as a member of the Mojahedin, escaping in 1986 and making his way to Canada as a political refugee. Here, he worked in a factory, as a taxi driver and in a used car dealership. The birth of his son was referred to earlier as was his loss of custody. He said he sent his son to Iran on the direction of his organization having himself been ordered to return to Iraq.

He believed they both would be gone only 6 months. [ 17 ] Mr. Sadeghi-Jebelli blamed his contempt of court citation on being required by the MKO to leave the country to do his work for a time in the U.S. and ultimately to attend for military training in Iraq. In addition, he says his handlers failed to have a lawyer represent him in court as they undertook to do.

While in the Los Angeles, he obtained political asylum based on false information he knew MKO was providing to the U.S. immigration authorities. [ 18 ] He claimed that after 2 months of military training in Iraq he had a change of heart about the tactics of the Mojahedin and its treatment of its own members and wanted out. He says he was incarcerated for his betrayal and lost all communication with his family.

He said it was impossible to escape because they were surrounded by Iraqi security that cooperated with his jailers. [ 19 ] As noted earlier, he was a protected person in 2004 at Camp Ashraf, still under MKO jurisdiction. He says he was injured during an unsuccessful escape attempt in 2006, but after being taken to an American camp for treatment, he was helped by the Red Cross to travel to Iran. There, he says, following interrogation by authorities and being released on his father’s signature, he was able to use bribes to get his son secretly out of the country. He claims to have called Det.

Cecille of 41 Division, in Toronto, for help in getting himself to Canada but says he was told that his criminal case was closed and that the officer could not be of assistance. [ 20 ] Mr. Sadeghi-Jebelli made his way to Belgium where he was granted political asylum. He says he was not advised he had the option of waiving extradition after his arrest. Although I am not weighing the evidence, this stretches credulity as does some other of his material claims that appear self-serving and for which there is no independent support.

The reasons for his sending Paul to Iran in advance of his court hearing, his failure to show up in court and his ability to manoeuvre in and out of Iran despite a purported government death threat against him come to mind. [ 21 ] Mr. Sadeghi-Jebelli tells the court he has come to reject the philosophy of the MKO and considers it a political cult. He says now that he has his son and 2 brothers here with him he intends to clear up the charges and make a life in Canada with his family.

What can’t be denied is that his earlier commitment to this organization inalterably changed the lives of his son and his mother and caused them significant personal loss, displacement and trauma. [ 22 ] Evidence of Paul Jebelli [ 23 ] Paul Jebelli is 20 years old. He recalls being taken to Iran when he was 5 years of age. He lived there with his grandparents and the applicant’s brother, Mehdi. He did not speak with his father until he appeared in 2006 and arranged for his return to Canada. He says the applicant has not fully explained why they were not together for so many years.

He considers him a good father but holds him responsible for the lost relationship with his mother. [ 24 ] When he first arrived in Canada he lived with the applicant’s brother, Cyrus, in Mississauga. He found his mother and lived with her for 14 months but their relationship was difficult in light of her mental problems and other personality issues. He is now living with Mehdi. [ 25 ] Mr. Jebelli told the officer in charge that he felt some pressure from his father and his brothers to take a favourable position in the abduction case.

He spoke to the officer on his own and indicated he knew that what his father did was wrong but that he did not

want to take sides between his parents. He is an important prosecution witness. [ 26 ] Mr. Jebelli cares about his father and would hope to live with him and his uncle. I found him to be a straightforward witness. He appears mature for his age and indicates in his testimony an independence of thought. In these circumstances, I would not keep him separate from his father any longer. The Sureties Saleh Mirsalari [ 27 ] Saleh Mirsalari is 55 years old and came to Canada from Iran in 1985. He is now a citizen. He has an M.A. in Linguistics. He has been married 30 years and has 2 children.

He has owned an auto repair shop for 20 years. In the 1980’s he drove taxi with the Applicant and also employed him in his used car sales business. He lost contact with him in 1994. [ 28 ] Mr. Mirsalari is prepared to act as a surety for his friend. He told the court he has $300,000 equity in his Richmond Hill home and would pledge $20,000. He says any higher amount would require consultation with his wife. He would also employ Mr. Sadeghi-Jebelli if permitted by law and help in his supervision. [ 29 ] I am unimpressed with Mr.

Mirsalari’s view that the criminal allegations are not particularly serious, describing them, as he did, as a “family” matter. Nonetheless, were his home equity on the line, I don’t doubt he would take his surety responsibilities seriously. Mehdi Sadeghi-Jebelli [ 30 ] Mr. Sadeghi-Jebelli is 31 years old and a refugee claimant. He is able to work, but left his employment to assist his brother. He lives in Etobicoke with his nephew. He also had no communication with his brother for almost 10 years. His family is able to send $15-20,000 from Iran as a cash deposit in the event bail is granted.

He hopes to have his brother live with him and believes he will listen to him. He has $3500 in savings. He was hesitant to “judge” whether what his brother did in allegedly abducting his son was wrong. [ 31 ] While an apologist for his brother, I found this witness to be straightforward in his answers. It appears he wishes to make his home in this country and to hold his family together. I believe he would act responsibly as a surety. Position of the Parties [ 32 ] Mr.

Hochberg submits that given the chronology of events it is arguable the Crown will be unable to establish the mens rea element of the offence and that at a minimum the circumstances permit an inference of mitigation in the event of conviction. He says the evidence provides some objective support for the defence position. He makes reference to the Applicant’s roots here and suggests he has every reason to remain and none to return to Iran or live a transient life elsewhere. [ 33 ] Mr. Smith, for the prosecution, submits that the Applicant has no realistic answer to the charges.

He says this man has family in Iran and Turkey, has a history of easily moving across borders and should not be trusted meet his obligations to the court. He is concerned the Applicant would pressure his son to change his evidence. He suggests Mr. Sadeghi-Jebelli has not satisfied his reverse onus. Conclusion [ 34 ] The charges are serious, all the more so given their long-term adverse impact on the lives of the Applicant’s family members. There are, however, triable issues and potential mitigating issues of fact apparent on the evidence. The case is reasonably strong, but not overwhelming. [ 35 ] Mr.

Sadeghi-Jebelli has a history of moving across borders at times using stealth and deceit. He has in the past worked to benefit a deemed terrorist organization although he has renounced support of this organization for which there is some objective support. It is possible he might return to Iran to be with his parents although there is some indication his safety, if not his life, might be at risk as an opponent of that regime. He has political asylum in Brussels, but would be subject to re-arrest on a warrant should he fail to appear for trial. [ 36 ] He also has family in Turkey.

However, the fallout should he leave the jurisdiction is that in avoiding responsibility for these charges the Applicant will be unable put down roots and build his family life here with his brothers and son. It is clear by his effort to get Paul to Canada that he has his interests at heart. Given his roots in this country and his present circumstances, I draw the inference on this evidence that his focus is to remain in Canada. [ 37 ] On all the evidence, Mr.

Sadeghi-Jebelli has satisfied me on a balance of probabilities in relation to his reverse onus that with a substantial Recognizance, in addition to a cash bail, and appropriate safeguards, he will attend in court for his trial. In the result, he will be released on a Recognizance with one or more sufficient sureties in the amount of $150,000. I am prepared to name Saleh Mirsalari as an acceptable surety.

In addition, the Applicant will be required to provide a cash deposit into court of $30,000. [ 38 ] The terms of release will include the following: reside with his brother, Medhi Sadeghi-Jebelli, and follow the rules and discipline of that home; not leave that residence except in the company of his surety, Paul Jebelli, Mehdi Sadeghi-Jebelli or Cyrus Sadeghi-Jebelli; not travel outside the Greater Toronto Area [GTA]; advise the officer in charge 48 hours in advance of any change of address; deposit all immigration and travel documents with the officer in charge within 48 hours of his release and not apply for new documents; have no contact or communication directly or indirectly with Madonna Cantwell; report to the police reporting centre each Monday and Friday between the hours of 9 a.m. and 9 p.m.

Subject to submissions, I am open to other appropriate terms.

Released: February 14, 2011 Signed: “Justice L. Feldman”