The Republic of France et al. v. Ouzghar [Indexed as: France v. Ouzghar]
94 O.R. (3d) 601
Court of Appeal for Ontario,
Sharpe, Blair and Rouleau JJ.A.
January 23, 2009
Extradition -- Charter of Rights and Freedoms -- Mobility rights -- France seeking extradition of applicant Canadian citizen for offences involving forging travel document and membership in terrorist organization -- Conduct underlying extradition request occurring in Montreal but impact of applicant's actions being felt predominantly outside Canada -- Cotroni assessment clearly favouring prosecution in France and revealing no prospect of prosecution in Canada -- Surrender of applicant not violating his rights under s. 6(1) of Charter -- Canadian Charter of Rights and Freedoms, s. 6(1).
Extradition -- Surrender -- France seeking applicant's extradition for offences involving forging travel document and membership in terrorist organization -- Authority to Proceed authorizing Attorney General to seek applicant's committal on forgery-related charges and participation in criminal organization -- Applicant committed for surrender on forgery offences and discharged on offence of participation in criminal organization -- Minister ordering applicant's surrender on all offences for which extradition was sought -- Application for judicial review of surrender decision dismissed -- Extradition judge finding there wasn't evidence establishing Canadian offence of participation in a criminal organization -- Foreign and Canadian offences need not have identical elements as test for extradition is whether conduct would be offence in Canada -- Findings of fact by judge and evidence supporting Minister's decision to make surrender order for offence of membership in terrorist organization -- Minister's decision not precluded by discharge on charge of participation in criminal organization.
The appellant, a Canadian citizen, was convicted in absentia in France of offences involving forging a travel document and membership in a terrorist organization. France sought the appellant's extradition. The alleged conduct underlying the extradition request occurred in Montreal. The Authority to Proceed authorized the Attorney General to seek the appellant's committal on forgery-related offences and participation in a criminal organization. The appellant was committed for surrender on the offences of forgery, uttering a forged document, conspiracy to commit forgery and conspiracy to utter a forged document. He was discharged on the offence of participation in a criminal organization, as the extradition judge found that there was no evidence that the use of the appellant's [page602] passport was intended for the benefit of a criminal organization or that the appellant had the necessary knowledge of the activities of the alleged members of the organization. The Minister ordered the appellant's surrender on all of the offences for which France sought his extradition. The appellant appealed the committal order and brought an application for judicial review of the surrender order.
Held, the appeal and the application should be dismissed.
The extradition judge did not err in finding that France had made out a prima facie case that the appellant was a party to the offences outlined in the Authority to Proceed.
The appellant's surrender would not violate his right under s. 6(1) of the Canadian Charter of Rights and Freedoms to remain in Canada. The negative impact of the appellant's actions was felt predominantly, if not entirely, outside Canada. The Cotroni assessment clearly favoured prosecution in France and revealed no prospect of prosecution in Canada. The Minister obtained clarification from the French regarding their claim that they had jurisdiction to prosecute the appellant. Absent evidence to the contrary, he was entitled to act upon their assertion of jurisdiction.
The Minister's decision to make a surrender order for the offence of membership in a terrorist organization was not precluded by the fact that the appellant was discharged by the extradition judge on the participation in a criminal organization charge. The elements of the latter offence differ from what is required to make out the offence of membership in a terrorist organization under French law. Under the French Penal Code, forgery and forgery-related offences amount to acts of terrorism "where they are committed intentionally in connection with an individual or collective undertaking the purpose of which is seriously to disturb public order through intimidation or terror". The reasons of the extradition judge did not amount to a finding that there was no evidence to support the elements of the French charge. The extradition judge found that there was some evidence that the appellant had an association with members of an alleged passport forgery ring; had conspired to commit forgery in relation to his passport; had contact and association with others involved in terrorist activities in France; and had committed an overt act in relation to the forgery and use of his passport by those individuals. In light of those findings, as well as the evidence in the record of the particular organization's activities and the appellant's contacts with its members, the Minister's decision to surrender the appellant on the charge of membership in a criminal organization was not unreasonable.
APPEAL from the committal order Himel J. of the Superior Court of Justice dated January 12, 2007; APPLICATION for judicial review of the surrender order of the Minster of Justice and Attorney General of Canada dated January 28, 2008.
Cases referred to McVey v. U.S.A., 1992 CanLII 48 (SCC), [1992] 3 S.C.R. 475, [1992] S.C.J. No. 95, 97 D.L.R. (4th) 193, 144 N.R. 81, [1993] 1 W.W.R. 289, J.E. 92-1762, 16 B.C.A.C. 241, 73 B.C.L.R. (2d) 145, 77 C.C.C. (3d) 1, 17 W.C.B. (2d) 585; U.S.A. v. Gorcyca, [2007] O.J. No. 395, 2007 ONCA 76, 220 O.A.C. 35, 216 C.C.C. (3d) 403, 73 W.C.B. (2d) 120; U.S.A. v. Kissel (2008), 89 O.R. (3d) 481, [2008] O.J. No. 1127, 2008 ONCA 208, 234 O.A.C. 251, 77 W.C.B. (2d) 184 [Leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 250]; U.S.A. v. Reumayr, [2003] B.C.J. No. 1504, 2003 BCCA 375, 184 B.C.A.C. 251, 176 C.C.C. (3d) 377, 58 W.C.B. (2d) 237 [Leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 474]
Statutes referred to Canadian Charter of Rights and Freedoms, ss. 6(1), 24(1) Code pénal, Art. 421-1 C. pén [page603] Criminal Code, R.S.C. 1985, c. C-46, ss. 366, 368 [as am.], 465(1)(c), 467.1 [as am.], (1) [as am.], (2) Extradition Act, S.C. 1999, c. 18 Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.)
John Norris, for applicant/appellant. Richard Kramer and Ginette Gobeil, for respondent the Minister of Justice and Attorney General of Canada.
The judgment of the court was delivered by
SHARPE J.A.: -- Introduction
[1] The Republic of France seeks extradition of the appellant following his in absentia convictions by the High Court of Paris on April 6, 2001 for offences involving forging a travel document and membership in a terrorist organization.
[2] The appellant was born in Morocco and is a Canadian citizen. The Republic of France alleges that he belongs to a Canadian cell of a militant Islamic organization that engages in international terrorism, the Muhajaddin Katiba (Holy War Battalion). The appellant's alleged conduct underlying the extradition request occurred in Montreal in the spring and summer of 1996.
[3] The appellant is alleged to have served as a contact person for communication with Fateh Kamel, a senior member of the organization who lived in Montreal. Kamel purportedly headed an international forgery ring which falsified travel documents. The appellant is alleged to have provided his own Moroccan passport to the scheme at the request of the alleged group leader, Zoheir Choulah. Choulah gave evidence to the French authorities implicating the appellant in the scheme. Laïfa Khabou served as a courier to pick up passports in Canada. Khabou testified that he was given the appellant's passport and two other passports by an unidentified man, who the respondents allege was the appellant. Khabou provided the passports to Choulah in Turkey. The appellant's doctored passport was used by Choulah, who was stopped in Taiwan on July 28, 1996, while attempting to travel to Canada.
[4] The appellant allegedly made phone calls to other cell members and militants, including those present at an Islamic charity in Istanbul that is allegedly a front for terrorist activities. His [page604] telephone number was found in Khabou's list of phone numbers in coded fashion. There is evidence of the appellant's role as a fighter in the Muhajaddin Katiba in Bosnia in the 1990s. Members or affiliates of the Muhajaddin Katiba allegedly committed numerous armed robberies in France and planned terrorist activities in 1996.
[5] On October 13, 1999, RCMP officers searched the appellant's home and seized numerous items. The appellant was questioned by the officers under oath, pursuant to evidence gathering orders issued under the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) at the request of the Republic of France. The evidence was subsequently sent to France.
[6] The appellant's trial in absentia in France, along with 23 other individuals, resulted in convictions for forging a travel document and membership in a terrorist organization and a sentence of imprisonment for five years on April 1, 2001. France has admitted delay in notifying the appellant of the criminal charges and trial. The Republic of France has advised that if surrendered, the appellant will be entitled to ask for a new trial.
[7] The appellant was arrested in October 2001, under a provisional arrest warrant. The Authority to Proceed authorized the Attorney General to seek the appellant's committal on offences contrary to the Criminal Code, R.S.C. 1985, c. C-46: (a) s. 366 (forgery of passports); (b) s. 465(1)(c) and s. 366 (conspiracy to commit forgery); (c) s. 368 (uttering forged documents); (d) s. 465(1)(c) and s. 368 (conspiracy to utter forged documents); and (e) s. 467.1 (participation in a criminal organization).
[8] The appellant was committed for surrender on the offences of forgery, uttering a forged document, conspiracy to commit forgery and conspiracy to utter a forged document. The appellant was discharged on the offence of participation in a criminal organization. The appellant appeals against the order of committal.
[9] The Minister of Justice ordered the appellant's surrender on all the offences for which his extradition was sought by the Republic of France. The appellant seeks judicial review of the surrender decision, that the surrender order be set aside and that a stay of proceedings be entered pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms. [page605]
Analysis
I. Appeal against committal
Did the extradition judge err in finding that France had made out a prima facie case that the appellant was a party to the offences outlined in the authority to proceed?
[10] The appellant concedes that he is the person sought by the Republic of France and that the extradition judge applied the correct test for committal, but contends that she erred in -- finding that there was sufficient evidence that the appellant agreed to provide Choulah with his passport; -- committing the appellant on singular offences of forgery and uttering a forged document as the Authority to Proceed specified multiple offences; and -- finding that there was sufficient evidence to support the broad conspiracy as alleged in the Authority to Proceed.
[11] In my view, there was ample evidence to support the committal judge's findings. I refer, in particular, to the following evidence: -- Choulah was arrested with the appellant's passport; -- Choulah's statement to the French police implicated the appellant; -- there were numerous phone calls between the appellant and members or affiliates of the Muhajaddin Katiba; -- the appellant's connection to the apartment where Khabou stayed in Montreal; and -- the appellant's coded phone number was found in the phone directories of Muhajaddin Katiba members.
[12] While the authority to proceed referred to multiple offences, this was not an essential element as the French conviction was based on single incidents of forgery. In any event, there was some evidence that the appellant was involved in the delivery of more than one passport.
[13] Accordingly, I would dismiss the appeal from the committal order. [page606]
II. Application for judicial review of the surrender decision
[14] The appellant raises several issues with respect to the Minister's surrender decision, arguing that his surrender would violate his s. 6(1) Charter right to remain in Canada and that the Minister's decision was unreasonable.
(a) Was the Minister unreasonable in relying on France's assertion of jurisdiction?
[15] The appellant submits that France's claim to have jurisdiction over him for these purposes is antithetical to Canadian notions of justice and fair process and that the Minister's reliance on France's assertion of jurisdiction over the appellant was unreasonable.
[16] I do not accept this submission. The Minister asked for and received clarification of the basis for jurisdiction from the French authorities. In the absence of clear evidence to the contrary, the Minister was entitled to rely on the legal explanation he received as to the basis for France's assertion of jurisdiction. Moreover, as the Minister pointed out in his reasons, the notion of asserting jurisdiction over offences committed outside of Canada in cases of organized crime and terrorism is not antithetical to Canadian law.
(b) Were the appellant's rights under s. 6(1) of the Charter violated?
[17] The appellant complains that various requests for further disclosure were rejected and asserts that the Minister's conclusion -- that the appellant's s. 6(1) Charter right to remain in Canada would not be violated -- cannot be sustained.
[18] I am not persuaded that there was any denial of procedural fairness or any other grounds that would allow this court to interfere with the Minister's decision. As the Minister noted, the negative impact of the appellant's actions was felt predominantly, if not entirely, outside of Canada. The Cotroni assessment clearly favoured prosecution in France and revealed no prospect of prosecution in Canada. The question of the availability of evidence to prosecute the appellant in France was properly dealt with at the committal stage and the Minister obtained assurances from the French authorities that, despite the considerable delay, they were still in a position to present their case against the appellant.
(c) Is the surrender order inconsistent with the result of the extradition hearing?
[19] The appellant contends that the Minister improperly ordered his surrender on the charge of membership in a terrorist [page607] organization in the face of the committal judge's decision to discharge him on the charge of participation in a criminal organization.
[20] The Extradition Act, S.C. 1999, c. 18, the relevant treaty and the applicable jurisprudence do not require that the foreign offences set out in the surrender order align precisely with the Canadian offences that formed the basis for the committal order. The test is conduct-based and it is sufficient that the conduct of the person sought, if it occurred in Canada, would have constituted an offence punishable under Canadian law: McVey v. U.S.A., 1992 CanLII 48 (SCC), [1992] 3 S.C.R. 475, [1992] S.C.J. No. 95. However, the appellant relies on the principle that the Minister has no discretion to surrender for offences involving conduct that is not supported by the evidence at the committal hearing: see, e.g., U.S.A. v. Gorcyca, 2007 ONCA 76, [2007] O.J. No. 395, 216 C.C.C. (3d) 403 (C.A.), at paras. 61-63; U.S.A. v. Kissel (2008), 2008 ONCA 208, 89 O.R. (3d) 481, [2008] O.J. No. 1127 (C.A.), at paras. 39-40 (leave to appeal to SCC refused, [2008] S.C.C.A. No. 250); U.S.A. v. Reumayr, 2003 BCCA 375, [2003] B.C.J. No. 1504, 176 C.C.C. (3d) 377 (C.A.), at para. 42 (leave to appeal to SCC refused [2005] S.C.C.A. No. 474). The appellant places particular emphasis on the following passage from the reasons of the committal judge:
[I]n my view, there is no evidence that Mr. Ouzghar had knowledge that persons participated [in the criminal organization] in the preceding five years with a series of indictable offences. The evidence that might support that Mr. Ouzghar had an operational connection to the organization is not sufficient to provide the essential ingredients of the offence. I agree with counsel for Mr. Ouzghar that there is no evidence that the use of Mr. Ouzghar's passport was intended for the benefit of a criminal organization or that Mr. Ouzghar had the necessary knowledge of the activities of the alleged members of the organization.
[21] In my view, those findings must be read in the light of the specific issue the committal judge was addressing, namely the elements required to establish the Canadian offence, as it stood at the time, of participation in a criminal organization. Section 467.1 of the Criminal Code stated:
467.1(1) Every one who (a) participates in or substantially contributes to the activities of a criminal organization knowing that any or all of the members of the organization engage in or have, within the preceding five years, engaged in the commission of a series of indictable offences under this or any other Act of Parliament for each of which the maximum punishment is imprisonment for five years or more, and (b) is party to the commission of an indictable offence for the benefit of, at the direction of or in association with the criminal organization for which the maximum punishment is imprisonment for five years or more [page608]
is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. (Emphasis added)
Section 467.1(2) defined "criminal organization" as:
467.1(2) Any group, association or other body consisting of five or more persons, whether formally or informally organized, having as one of its primary activities the commission of an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, and any or all of the members of which engage in or have, within the preceding five years, engaged in the commission of a series of offences. (Emphasis added)
[22] To make out a case on this offence the prosecution was required to prove that the accused had participated or actively contributed to the "the activities of a criminal organization" and that the accused had knowledge that the members of the organization had committed certain offences within a stated period of time.
[23] As the Minister noted, those elements differ from what is required to make out the offence of membership in a terrorist organization under French law. Article 421-1 of the French Penal Code [Code pénal] provides that forgery and forgery related offences amount to acts of terrorism "where they are committed intentionally in connection with an individual or collective undertaking the purpose of which is seriously to disturb public order through intimidation or terror".
[24] I do not agree that the Minister's decision to make a surrender order for this offence was precluded by the fact that the appellant was discharged by the committal judge on the participation in a criminal organization charge. The reasons of the committal judge do not amount to a finding that there is no evidence to support the elements of the French charge. The fact that the elements of the Canadian offence, related to the activities of the organization and the prior misconduct of its members, were not established before the committal judge is simply not relevant to the French charge which relates to the purpose of the undertaking and the commission of certain specified crimes, including forgery.
[25] The committal judge found that there was some evidence that the appellant -- had an association with members of the alleged passport forgery ring; -- had conspired to commit forgery in relation to his passport; [page609] -- had contact and association with others involved in terrorist activities in France; and -- had committed an overt act in relation to the forgery and use of his passport by those individuals.
[26] In the light of those findings, as well as the evidence in the record of the Muhajaddin Katiba's activities and the appellant's contacts with its members, I cannot agree that the Minister's decision to surrender the appellant on the charge of membership in a terrorist organization was unreasonable.
Disposition
[27] Accordingly, I would dismiss the appeal and the application for judicial review.
Appeal and application dismissed.