)) ATTORNEY GENERAL OF CANADA Applicant – v. –, 2017 ONSC 5229

CITATION : Attorney General of Canada v. Chohan, 2017 ONSC 5229 COURT FILE NO.: 16-13262 DATE: 20170905 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) ATTORNEY GENERAL OF CANADA Applicant – and – ASAD HUSSAIN CHOHAN (aka MUHAMMAD AFZAL KHAN, aka MOHAMMED AFZAL KHAN) Respondent ))))))))) ) ) ) ) Jacqueline Palumbo, for the Applicant C.A. Morrow, for the Respondent ) HEARD: May 25, 2017 & July 21, 2017 (Ottawa) REASONS FOR Decision parfett j. [ 1 ] The Attorney-General of Canada acting on behalf of the United Kingdom and Ireland requests an order for committal into custody of Mr.

Asad Hussain Chohan to await the Minister’s decision on extradition. Background [ 2 ] Mr. Asad Hussain Chohan was arrested in November 2000 on charges of conspiracy to contravene s. 170(2) of the UK Customs and Excise Management Act, 1970. Mr. Chohan, his brother Saajid Hussain Chohan and Lee Rathmill were accused of illegally importing tobacco products from Europe and thereby evading the duty payable on those products. [ 3 ] The case against the two brothers was circumstantial. Their jury trial started on March 17, 2006 in the Birmingham Crown court. The Crown closed its case on April 4, 2006 and on that day Mr.

Chohan left the court never to return. [ 4 ] Mr. Chohan’s lawyer continued to represent him and on April 21, 2006, the jury found Mr. Chohan guilty. On August 1, 2006, the judge sentenced Mr. Chohan to four years’ imprisonment. The judge also made a confiscation order for £28,602,059.61 (approximately $47,541,000 CDN). Finally, Mr. Chohan was convicted of failure to appear and sentenced to a further one year of imprisonment. [ 5 ] On September 12, 2016, Mr. Chohan was arrested in Canada pursuant to a Provisional Arrest Warrant.

On December 8, 2016, an Authority to Proceed (ATP) was issued pursuant to s. 15 of the Extradition Act [1] authorizing the Attorney-General of Canada to seek a warrant of committal against Mr. Chohan. Legal Principles [ 6 ] The issues on an extradition hearing are the following: 1. Whether the conduct alleged to have been committed by the Respondent corresponds to a Canadian criminal offence; and 2. Whether the person before the court is the person who was charged and/or convicted in the foreign country. [ 7 ] The onus is on the Crown to prove both of these elements on a balance of probabilities.

The second issue in relation to identity is conceded by the Respondent.

[ 8 ] The role of the extradition judge is a limited one. As noted in Argentina (Republic) v. Mellino , [T]he role of the extradition judge is a modest one; absent express statutory or treaty authorization, the sole purpose of an extradition hearing is to ensure that the evidence establishes a prima facie case that the extradition crime has been committed. [2] [ 9 ] The test for committal differs depending on whether the Respondent is wanted for prosecution or for the enforcement of a sentence. In the present case, s. 29(1) (

b) of the Extradition Act applies to the conviction on the conspiracy charges. That

section states, 29

(1) A judge shall order the committal of the person into custody to await surrender if … (

b) in the case of a person sought for the imposition or enforcement of a sentence, the judge is satisfied that the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed and that the person in the person who was convicted. [Emphasis added] [ 10 ] In United States of America v. Persaud , [3] the nature of the conduct required and the term ‘corresponds’ were analysed. With respect to the issue of the conduct required, the court indicated that the evidence provided by the foreign jurisdiction must be something more than merely ‘bare bones’ or skeletal counts in conclusory form. [4] What is required is at a minimum a

summary of the material facts underlying the convictions with which the judge can assess whether the conduct corresponds to the Canadian offences set out in the ATP. [5] It is important to note that it is not the Respondent’s convictions that must correspond to the Canadian offences, but rather his conduct. The term ‘corresponds’ means ‘corresponds in a general sense’ to the Canadian offences set out in the ATP. [6] [ 11 ] In the present case, and with respect to Mr. Chohan’s conviction and sentence for absconding during his trial, the extradition judge is required to apply the test set out in s. 29(1)(

a) of the Act . That

section states, 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. [ 12 ] In assessing the evidence provided by the foreign jurisdiction, the extradition judge’s role is to determine whether there is sufficient evidence to commit the Respondent to trial had the conduct occurred in Canada.

The judge is not called on to, [weigh] competing inferences that may arise from the evidence. It does not contemplate that the extradition judge will decided whether a witness is credible or his or her evidence is reliable. Nor does it call upon the extradition judge to evaluate the relative strength of the case put forward by the requesting state.

There is no power to deny extradition in cases that appear to the extradition judge to be weak or unlikely to succeed. [7] Positions of the parties [ 13 ] It is the position of the Respondent that the conviction for absconding during his trial is not an extraditable offence. The Respondent points to s. 3(1)(

a) of the Act the relevant portions of which state, 3

(1) A person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner for the purpose of prosecuting the person or imposing a sentence on – or enforcing a sentence imposed on – the person if (

a) subject to a relevant extradition agreement, the offence in respect of which the extradition is requested is punishable by the extradition partner, by imprisoning or otherwise depriving the person of their liberty for a maximum term of two years or more, or by a more severe punishment; and (

b) the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada, (…)

(ii) in any other case, by imprisonment for a maximum term of two years or more, or by a more severe punishment, subject to a relevant extradition agreement. [ 14 ] The Respondent argues that the ATP should be quashed in relation to this offence. The Respondent provided a copy of the UK Bail Act 1976 .

Section 6(7) of that Act indicates that the maximum sentence for absconding after release on bail is 12 months. [ 15 ] With respect to the conviction in relation to importing tobacco products without having paid the necessary duty, the Respondent argues that firstly, the conduct alleged by the UK does not correspond to the offence of s. 32(1) of the Excise Act, 2001 [8] and secondly, the material provided by the foreign jurisdiction is so lacking that it is not possible for the court to determine whether the conduct alleged would justify a committal. [ 16 ] The Crown contends that once the Minister of Justice issues the ATP, the extradition judge’s sole responsibility under sections 24 and 29 is to hold a hearing to determine whether the evidence would support a committal on the Canadian offences set out in the ATP.

Furthermore, she argues that the judge does not consider the law of the foreign state. [9] As noted in United States of America v. Kavaratzis , Section 29(1)(a), therefore, does not authorize the extradition judge to consider foreign law or whether the extradition partner has jurisdiction over the conduct for which extradition is sought.

That the extradition judge is not to be concerned about foreign law is reinforced by s. 33(3) of the Act which provides that the record of the case for extradition … may not be admitted unless it is sufficient under the law of the extradition partner to justify prosecution. [10] [ 17 ] The Crown notes further that s. 59 of the Act indicates that the extradition judge can order surrender of a person if at least one of the offences set out in the ATP qualifies under s. 3 of the Act and all of the offences relate to conduct that had it occurred in Canada would have constituted offences punishable under Canadian law.

Consequently, given the charge of conspiracy to evade duty meets the criteria of s. 3 of the Act , and the conduct relating to Mr.

Chohan’s failure to appear for his trial is conduct that is punishable under Canadian law, it matters not if the offence of absconding during trial does not by itself meet the criteria of s. 3 of the Extradition Act . [ 18 ] With respect to the Respondent’s argument that the conduct alleged in relation to the conspiracy to evade duty on importation of tobacco products does not correspond to s. 32 of the Excise Act , the Crown emphasized that the conduct must correspond in a general sense.

No exact correspondence is required. [ 19 ] The Crown pointed out that the Respondent relies heavily on the decision of United States of America v. Sepheri for its argument in relation to the conspiracy offences. In that case, the offence was criminal harassment. In Canada, the equivalent offence required that the victim fear for her safety. Under Californian law, no such requirement existed. The judge in that case noted that s. 29(1) (

b) of the Extradition Act did not require an exact correspondence between the conduct underlying the foreign offence and each and every element of the Canadian offence. However, that case was argued on the basis that evidence the victim feared for her safety was a necessary element to establish correspondence between the offences and the actual evidence established the victim did not fear for her safety.

It was that contradiction that led the court to conclude the warrant for committal should not be issued. [ 20 ] Finally, the Crown argued that the evidence put before this court is more than adequate to be satisfied the Respondent would be committed for trial in Canada. The Crown pointed out that the evidence before this court was contained in the prosecution’s record of the case and the two supplemental records provided and they must be read in their totality.

Analysis [ 21 ] I agree with the Crown that s. 59 of the Act is a complete answer to the Respondent’s argument with respect to the offence of absconding during his trial. [ 22 ] I also agree with the Crown that while the correspondence between the Canadian offence of evading duty and the UK offence is not exact, the essence of the two charges is the same – evading duty on tobacco products. [ 23 ] The primary argument of the Respondent related to the sufficiency of the evidence placed before this court. The case against Mr.

Chohan was circumstantial and a jury does not give reasons, so the evidence before this court is that provided in the three records of the case. I agree that this evidence must be read in its entirety. I also agree that it is not my role to weigh competing inferences that could be drawn from the evidence. The issue is whether the evidence as a whole would be sufficient to commit the Respondent to trial pursuant to s. 32 of the Excise Act . [ 24 ] The evidence provided by the UK prosecutor is capable of supporting the inferences that the prosecutor asked to be drawn that Mr. Chohan, • employed Mr.

Rathmill as a driver; • was in the business of importing clothes from Europe;

• was on the ferry at the same time as Mr. Rathmill in order to guard Mr. Rathmill’s cargo; and • knew his clothes cargo was being used as a cover for the importation of tobacco products on which duty had not been paid. [ 25 ] As a result, I find that the Attorney-General has met its burden of demonstrating on a balance of probabilities that the conviction in the UK was in respect of conduct that corresponds to the offence set out in s. 32 of the Excise Act . [ 26 ] Therefore a warrant for committal for Mr. Chohan will be issued to await the Minister’s decision on surrender.

Madam Justice Julianne Parfett Released: September 5, 2017 CITATION : Attorney General of Canada v. Chohan, 2017 ONSC 5229 COURT FILE NO.: 16-13262 DATE: 20170905

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ATTORNEY GENERAL OF CANADA Applicant – and – ASAD HUSSAIN CHOHAN(aka MUHAMMAD AFZAL KHAN, aka MOHAMMED AFZAL KHAN) Respondent REASONS FOR Decision Parfett J. Released: September 5, 2017