DATE: 20050211
DOCKET: C41426 C42309
COURT OF APPEAL FOR ONTARIO
LABROSSE, GOUDGE AND BLAIR JJ.A.
B E T W E E N :
UNITED STATES OF AMERICA
Mark Ertel for the appellant
(Respondent)
- and -
MOHAMMAD KHALIFE
Kevin Wilson for the respondent
(Appellant)
Heard: January 21, 2005
On appeal from the Order of Committal by Justice Jean Forget of the Superior Court of Justice dated February 20, 2004.
GOUDGE J.A.:
[1] The United States of America has requested the extradition of the appellant, Mohammad Khalife, for the purpose of trying him on offences relating to conspiracy, credit card fraud, and money laundering.
[2] On February 20, 2004, Forget J. ordered the appellant to be committed to await surrender, and on July 28, 2004, the Minister of Justice ordered his surrender to the United States.
[3] Initially Mr. Khalife challenged both orders. In this court he abandoned his attack on the surrender order but pursued his appeal from the committal order.
[4] His primary argument is that the extradition judge erred in committing him for the general offence of fraud without specifying the separate offences of fraud reflecting the various amounts, victims, and dates for which he found specific evidence of criminal conduct. The appellant says that had the extradition judge attempted this, he could not have found sufficient evidence to commit him for surrender for some of the specific instances of alleged fraudulent conduct.
[5] For the reasons that follow, I do not agree that the trial judge erred in proceeding as he did. Nor did he err in the other respects that are advanced by the appellant. I would therefore dismiss the appeal.
[6] The Record of the Case provided by the United States alleges that the appellant, along with five other co-accused, obtained credit cards and opened bank accounts in their own names or by using the identity information of others. It alleges that they then fraudulently inflated the available balances in the accounts by making rapid successive deposits by cheque. Before the bank and credit card companies became aware that the deposited cheques were worthless, the appellant and the other co-accused had purchased readily saleable items such as large quantities of expensive perfumes, jewellery, and store gift cards and obtained cash advances or otherwise withdrew funds from the accounts. Finally, it is alleged that the appellant wired the proceeds of the scheme to bank accounts in Lebanon.
[7] In response to the American request for extradition, the Minister of Justice issued an Authority to Proceed in this matter. Particulars were then sought by the appellant and were ordered. The Minister responded by issuing a substitute Authority to Proceed and then on July 17, 2003, a second substitute Authority to Proceed. The committal hearing was conducted pursuant to the last of these. As required by s. 15(3)(c) of the Extradition Act, S.C. 1999, c. 18 (“the Act”), the Authority to Proceed named the Canadian offences that correspond to the alleged conduct of the appellant.
[8] The appellant’s primary argument focuses on the fraud alleged at paragraph 5 of the Authority to Proceed. The relevant parts of that paragraph are as follows:
- Fraud
| DATE | AMOUNT | VICTIM OR PARTICULARS | |
|---|---|---|---|
| a | June 21, 2002 | In excess of $70,000 US | Chase Manhattan Bank |
| b | June 25, 2002 | In excess of $70,000 US | Standard Federal Bank |
| c | January 18, 2002 | $30,000 US | Standard Federal Bank |
| d | February 7, 2002 | $32,000 US | Standard Federal Bank |
| e | May 7, 2002 | $20,000 US | Standard Federal Bank |
| f | May 24, 2002 | $40,000 US | Standard Federal Bank |
| g | June 20, 2002 | $45,000 US | Standard Federal Bank |
| h | March 12, 2002 | $18,000 US | Huntington National Bank |
| i | February 1 2002 to May 31 2002 | In excess of $40,000 US | Huntington National Bank |
| j | July 22, 2002 | In excess of $40,000 US | Marshall Field’s |
| k | July 27, 2002 | In excess of $4000 US | Marshall Field’s |
| k | August 31, 2002 | In excess of $20,000 US | Marshall Field’s |
| l | Date unknown | Indeterminate amount | Fraudulent purchases at a jewelry store in Dearborn with Rahal and Hazime |
| m | July 16, 2002 | $5,600 US | Cash advance at Huntington National Bank with Hazime |
| n | Date unknown | Approximately $21,000 US | Purchase at Costco store in Madison Heights with Hazime’s American Express card |
| o | May 20, 2002 | $2,500 US | Cash advance at the Comerica Bank |
| p | May 10, 2002 and May 30, 2002 | $4,000 US $3,600 US |
Cash advances at the Huntington National Bank |
| q | March 28, 2002, May 15, 2002 and May 16, 2002 | $4,800 US $1,100 US $3,100 US |
Cash advances at the Standard Federal Bank |
| r | June 5, 2002 and June 14, 2002 | $5,711 US $7,768 US |
Refund cheques on a VISA credit account |
[9] In his reasons for decision, the extradition judge referred to the Authority to Proceed as raising eight different offences. Paragraph 5 names fraud as one of these eight. The judge referred to the lettered subparagraphs in paragraph 5 as sub-items particularizing how the alleged offence was carried out. He concluded that the requesting state had made out a prima facie case against the appellant on the offence of fraud “except as it relates to item 5(c) to (h) inclusive”. Because there was insufficient evidence to establish a prima facie case with respect to those sub-items, the extradition judge discharged the appellant with respect to them. The relevant portion of the Order for Committal reads:
I order the committal into custody of MOHAMAD ABBAS KHALIFE for the offences set out in the Authority to Proceed of July 17, 2003, namely:
• Fraud (in or about January 2002 to in or about August 31, 2002), contrary to sections 21 and 380 of the Criminal Code, save and except paragraph 5(c) to (h) inclusive on which he is to be discharged.
[10] The appellant argues that the extradition judge erred in committing on the general offence of fraud rather than treating each of the lettered sub-items of paragraph 5 of the Authority to Proceed as separate offences and then determining on which of these there was sufficient evidence to order the appellant’s committal for surrender.
[11] I disagree. It certainly would have been possible, and in my view preferable, for the Minister to draft the Authority to Proceed setting out each of the acts of fraud listed in paragraph 5 as a separate offence. Among other things, this would have assisted the extradition judge in knowing the precise conduct about which he was being asked to make evidentiary determinations. Rosenberg J.A. clearly described the advantages of such an approach in Saad v. United States of America (2004), 2004 ONCA 9931, 21 C.R. (6th) 317 (Ont. C.A.) at paragraph 22:
That said, I would encourage the Minister to be as specific as possible in drafting the Authority to Proceed. While the Authority to Proceed is not a charging document in the sense of an indictment or information, it is the foundation for the judicial phase of the proceedings, and greater precision will assist in expediting those proceedings. With a more carefully crafted document, the parties and the judge will have a better understanding of the real matters in issue and can direct their attention to those matters accordingly. Greater precision will also assist at the executive phase of the proceedings, when the Minister of Justice comes to draft the surrender order [footnotes omitted].
[12] Indeed the extradition judge might reasonably have read paragraph 5 of this Authority to Proceed to set out separate offences of fraud. However, he appears not to have done so but to have treated that paragraph as setting out one offence of fraud together with sub-items particularizing how the offence was carried out. In this context the provision in the Order for Committal discharging the appellant on items 5(c) to (h) inclusive is an anomaly.
[13] Despite this anomaly, I do not think the extradition judge erred in proceeding as he did. Taking the Authority to Proceed as he read it, paragraph 5 names the offence of fraud. In its particulars it then specifies the conduct of the appellant said to constitute the offence. Paragraph 5 thus complies with s. 15(3)(c) of the Extradition Act because it properly names fraud as the offence under Canadian law that corresponds to the alleged conduct of the appellant and, given the particulars provided, it respects the appellant’s entitlement to a fair extradition hearing in which he knows the case he has to meet. Thus the Authority to Proceed meets the requirements of both the Act and natural justice, and entitled the extradition judge to proceed with the hearing.
[14] At the conclusion of the hearing, the extradition judge committed the appellant for surrender on the offence of fraud. The Order for Committal sets this out, as required by s. 29(2)(b) of the Extradition Act which states:
(2) The order of committal must contain
(b) the offence set out in the authority to proceed for which the committal is ordered;
[15] His reasons for judgment make clear that although he found insufficient evidence to establish a prima facie case against the appellant in relation to sub-items (c) to (h) of paragraph 5, there was sufficient evidence to do so in relation to each of the other sub-items of the paragraph. These constitute the conduct of the appellant for which the extradition judge found sufficient evidence to warrant committal if the conduct had occurred in Canada. Hence his committal of the appellant for fraud complies with s. 29(1) of the Extradition Act which says:
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.
[16] The extradition judge could have provided the Minister with a report under s. 38(1) of the Extradition Act setting out which acts of fraud he had found to be made out and which he had not. Here his reasons serve that purpose, which is an important one where the authority to proceed is drafted in general terms, because it not only demonstrates compliance with s. 29(1) of the Act, but also provides clear fact finding for the Minister in drafting the surrender order.
[17] In summary, in respect of paragraph 5, the Authority to Proceed complies with the Extradition Act as does the hearing conducted by the extradition judge, the findings he made at its conclusion, and the committal order which resulted. The appellant’s primary argument must fail.
[18] The appellant also argues that there was insufficient evidence of some of the acts of fraud to order committal. However, whether the sub-items of paragraph 5 of the Authority to Proceed are viewed as particulars of fraud or as separate offences I do not agree with the appellant that for some of them there is insufficient evidence to establish a prima facie case. He concedes that for nine of the nineteen sub-items in paragraph 5 of the Authority to Proceed there is sufficient evidence. That evidence speaks to the pattern of credit card fraud alleged against the appellant in the record of the case. For each of the ten sub-items of paragraph 5 that the appellant contests, there is evidence of a specific transaction which, when it is taken together with the evidence of the appellant’s pattern of conduct and his concessions concerning the sufficiency of evidence supporting the other offences, easily rises to the level of a prima facie case.
[19] The appellant makes a specific complaint about sub-item 5(l) because it alleges fraudulent conduct of the appellant at an unknown date and in an indeterminate amount. The appellant says that both are required for a valid offence in an authority to proceed. I do not agree. Even if this sub-item were treated as a separate offence, the simple answer is that s. 15(3)(c) of the Extradition Act requires only that the authority to proceed contain the name of the offence in Canadian law that corresponds to the alleged conduct of the person sought. Here that offence is fraud which is defined in the Criminal Code without reference to a specific date or a specific amount. While the inclusion of both is preferable, neither is needed for compliance with the Act, at least where both are unknown.
[20] The appellant’s final argument is that the extradition judge erred in committing him to await surrender on the offence of laundering the proceeds of crime given that there was no evidence that the money transferred by the appellant was indeed the proceeds of crime. I disagree. There was evidence that (a) from at least May until August 2002 the appellant was directly involved sometimes with co-accused in various fraudulent schemes that generated tens of thousands of dollars; (b) in September 2002, the appellant indicated that he was unemployed though he said that he sometimes used his computer expertise to help people within the community to fix their credit for a fee of approximately $300 per person; and (c) between January and June of 2002 the appellant made five wire transfers totalling $185,000 US from his accounts in Dearborn, Michigan, to accounts in Beirut, Lebanon. In these circumstances, it would be open to a reasonable jury properly instructed to find that the money transferred was the proceeds of crime.
[21] For these reasons I therefore conclude that the appellant’s arguments must fail and his appeal must be dismissed.
RELEASED: February 11, 2005 “JML” “S.T. Goudge J.A.”
“I agree J.M. Labrosse J.A.”
“I agree R.A. Blair J.A.”