DATE: 20060405

DOCKET: C42346 & C43451

COURT OF APPEAL FOR ONTARIO

IN THE MATTER OF THE EXTRADITION ACT S.C. 1996 c. e-18

AND IN THE MATTER OF AN APPLICATION BY THE UNITED STATES OF AMERICA, EXTRADITION PARTNER, FOR THE EXTRADITION OF ALI ABDULRAHMAN AND AHMED MURSHED

RE:

THE UNITED STATES OF AMERICA (Requesting State/Respondent) – and – AHMED MURSHED (Person Sought/Appellant/Applicant)

BEFORE:

GILLESE, BLAIR and LAFORME JJ.A.

COUNSEL:

Ahmad N. Baksh and Raymond Motee

for the applicant

Marco Mendicino

for the respondent

HEARD & ENDORSED:

April 3, 2006

On appeal from committal order of Justice Paul S. Rouleau of the Superior Court of Justice dated August 6, 2004. On judicial review under s. 57 of the Extradition Act from the surrender order of the Minister of Justice dated April 6, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant appeals from the decision of the extradition judge to dismiss his two preliminary stay applications. The first application was based on an abuse of process argument in which it was alleged that the extradition process was tainted by an improper political and/or religious purpose. The second application related to an attempt to have the Record of the Case excluded because of the purported unreliability of the certification process.

Abuse of Process Due to Political or Religious Motivation

[2] As the extradition judge noted in this regard, an extradition judge plays a limited role. In our view, the extradition judge correctly interpreted and applied Re Pacificador and Republic of the Philippines (1993), 1993 3381 (ON CA), 83 C.C.C. (3d) 210 (Ont. C.A.) at para. 13, in holding that these allegations were to be weighed and considered by the Minister at the surrender stage. We do not read United States of America v. Cobb (2001), 2001 SCC 19, 152 C.C.C. (3d) 270 (S.C.C.) as standing to the contrary.

Certification Concerns

[3] The appellant’s concerns about the certification are misplaced. We see nothing in the legislation that would limit the requesting state from supplementing the record in the fashion that it did. We are also of the view that the appellant’s concerns about certification were misplaced as they relate to the reliability of the evidence in the Record of the Case, not its admissibility.

[4] Accordingly, the appeal is dismissed.

Application for Judicial Review

[5] The appellant also brings an application for judicial review of the Minister’s surrender decision.

[6] We see no basis on which to disturb the Minister’s decision. The Minister was entitled to conclude that the reports tendered by the applicant “did not reflect a general policy of neglect for due process in the USA”. We see no factual basis for the applicant’s assertion that the US seeks extradition for any other purpose than to prosecute the applicant for the offence on which extradition was sought.

[7] Accordingly, the application is dismissed also.