United States of America v. Mylvaganam, 2009 ONCA 495

CITATION: United States of America v. Mylvaganam, 2009 ONCA 495

DATE: 20090618

DOCKET: C49479

COURT OF APPEAL FOR ONTARIO

Lang, Juriansz and Watt JJ.A.

BETWEEN

The Attorney General of Canada on behalf of The United States of America

Respondents

and

Ramanan Mylvaganam

Appellant

Counsel:

Richard Litkowski, for the appellant

Richard A. Kramer, for the respondents

Heard: May 14, 2009

On appeal from the order of committal of Justice Kenneth A. Langdon of the Superior Court of Justice, dated October 7, 2008, made under section 29(1)(a) of the Extradition Act, S.C. 1999, c. 18.

ENDORSEMENT

[1] The appellant appeals from the order of the extradition judge dated October 7, 2008, committing him for extradition to the United States for offences corresponding to sections 83.03 and 83.18 of the Criminal Code. In essence, s. 83.03 makes it an offence to make available property or services “intending or knowing” that they will be used for terrorist activity. Section 83.18 makes it an offence to “knowingly” participate in terrorist activity. The appellant does not dispute that he committed the acts contemplated by these offences. He asserts solely that the evidence in the Record of the Case (the “Record”) does not support the extradition judge’s conclusion that the appellant acted with the requisite knowledge and intent to support or participate in terrorist activity.

[2] The evidence in the Record consists primarily of a series of e-mails between the appellant and Suresh Sriskandarajah, an operative of the Liberation Tigers of Tamil Eelam (the “LTTE”), a designated terrorist group. The e-mails establish that Sriskandarajah asked the appellant to purchase submarine and warship design software from a U.K. company. The supplier was required by the U.K. government to verify who was purchasing the software and to what purpose it would be put. The appellant attempted to obtain the software, regularly seeking Sriskandarajah’s advice about what false information and documentation to provide to the supplier in order to satisfy the verification requirements. For example, in one particularly telling e-mail, the appellant wrote to Sriskandarajah:

They are asking me a lot of questions. I don’t want to sound suspicious, so want to give them a good answer. Please see if you can or whoever has a good idea about it to describe what we are going to use it for. [Emphasis added.]

[3] The appellant and Sriskandarajah also attempted to obtain night vision equipment on the basis of false information.

[4] In or about April 2006, the appellant sent approximately $22,000 worth of GPS navigation equipment and radio communication devices to Sriskandarajah. The appellant and two others had earlier tried to bring this equipment into Canada but were turned back at the border. When they attempted to re-enter the United States, the appellant presented the U.S. customs officer with his Ontario driver’s license, which indicated the home address of Sriskandarajah as the appellant’s own address. The e-mail records also indicate that the appellant, on Sriskandarajah’s instructions, transferred more than $5,000 to two companies in Singapore that distribute smouldering equipment.

[5] A portion of the e-mails exchanged between Sriskandarajah and the appellant were in the Tamil language.

[6] The Record sets out no evidence directly linking the appellant to the LTTE. As the extradition judge observed, “[i]n the vast majority of cases the knowledge and purpose of persons who commit the prohibited acts will be a matter of inference from proved circumstances.” The appellant does not take issue with this observation. Instead, he submits that the Record does not set out facts from which the extradition judge could reasonably infer that the appellant had the requisite knowledge that he was participating in or contributing to the activity of the LTTE for the purpose of enhancing the ability of the LTTE to facilitate or carry out terrorist activity. The appellant argues that the extradition judge drew this inference about the appellant’s knowledge and purpose by relying on the appellant’s Tamil origins to improperly impute knowledge to him of the political turmoil in Sri Lanka and of the role of the LTTE.

[7] We do not agree. The extradition judge did not rely exclusively on any single or isolated item of evidence in the Record to support his conclusion. His reference to the appellant’s ethnic origin was only a peripheral part of his reasoning. It is clear from reading the extradition judge’s reasons as a whole that he considered the mass of circumstantial evidence in its totality before inferring that the appellant had the required knowledge and purpose. Considered in the context of the totality of the evidence, the appellant’s furtive close relationship with an LTTE operative and the sophisticated military nature of the software he attempted to obtain on the operative’s instructions using false information and documentation, adequately supported the extradition judge’s conclusion that it could reasonably be inferred that the appellant knew he was assisting the LTTE for the prohibited purpose.

[8] In any event, we also agree with the submission of counsel for the Minister that it was open to the extradition judge to impute the requisite knowledge and purpose to the appellant on the basis of wilful blindness. The Minister submits that it defies logic to suggest that the appellant blindly performed elaborate deceptions involving tens of thousands of dollars worth of military equipment, transferred large amounts of money, and attempted to smuggle military-related equipment into Canada, all at the behest of an LTTE operative, without any knowledge of the purpose of his actions. We agree. At the very least, the following questions would naturally have arisen:

1. why Sriskandarajah asked him to order military software;
2. why Sriskandarajah directed him to make covert inquiries and to deceive the supplier;
3. what was the intended use of the sophisticated military software;
4. what was the final destination of the $22,000 worth of the software;
5. why was he trying to bring equipment that could be used for military purposes across the border into Canada; and
6. why did Sriskandarajah direct him to send $5,000 to companies in Singapore that distribute smouldering equipment?

[9] Thus, while the evidence in the Record could support the reasonable inference that the appellant knew that the joint activity in which he engaged with Sriskandarajah was for the purpose of obtaining military equipment for and to assist the LTTE, it could also support the alternative analysis that the appellant was wilfully blind as to the purpose of his actions.

[10] The appellant raised a second argument. Relying on the Supreme Court’s decision in United States of America v. Ferras, 2006 SCC 33, [2006] S.C.J. No. 33, he submitted that the extradition judge erred by explicitly holding that it was not his role to weigh competing inferences and that he should resolve any doubt in favour of committal. This court held in U.S.A. v. Anderson, 2007 ONCA 84, [2007] O.J. No. 449 at para. 27 that Ferras “does not envision weighing competing inferences that may arise from the evidence”. Ferras does allow the extradition judge to disregard evidence that is so manifestly unreliable it would be unsafe to rest a verdict upon it or is unavailable. The appellant has not suggested that any evidence in the Record is unreliable or unavailable. Nor, for that matter, has he identified any competing inference that reasonably arises from the evidence in the Record.

[11] The appeal is dismissed.

“S.E. Lang J.A.”

“R.G. Juriansz J.A.”

“David Watt J.A.”