The Attorney General of Canada on behalf of the United States of America et al. v. Qumsyeh

[Indexed as: United States of America v. Qumsyeh]

Ontario Reports

Court of Appeal for Ontario,

Doherty, Gillese and D.M. Brown JJ.A.

July 24, 2015

126 O.R. (3d) 641 | 2015 ONCA 551

Case Summary

Extradition — Abuse of process — Double jeopardy — Applicant convicted in Jordan of murdering his ex-wife in United States — Applicant serving six and a half years of 15-year sentence prior to general amnesty set him free — United States seeking applicant's extradition to stand trial for that offence — Extradition judge correctly holding that lacked jurisdiction to consider applicant's claim of abuse of process based on allegation of double jeopardy — Minister's decision to surrender applicant not unreasonable.

Q was convicted in Jordan of murdering his ex-wife in the United States. Q served six and a half years of a 15-year sentence before a general amnesty resulted in his release. The United States sought Q's extradition to stand trial for his ex-wife's murder. The extradition judge found that he had no jurisdiction to consider Q's claim of abuse of process, which was based on an allegation of double jeopardy, an alleged breach of his Canadian Charter of Rights and Freedoms rights. Q was committed for extradition. The minister ordered Q's surrender. Q appealed the committal order and brought an application for judicial review of the surrender order.

Held, the appeal and application should be dismissed.

The extradition judge correctly found that the double jeopardy claim was not within his limited Charter jurisdiction. The source of an extradition judge's jurisdiction to consider Charter issues is not inherent; it flows from s. 25 of the Extradition Act, S.C. 1999, c. 18. Section 25 gives the extradition judge jurisdiction to consider Charter issues that pertain directly to the circumscribed issues relevant at the committal stage of the extradition process. The double jeopardy claim was not closely connected to the committal process.

The minister's surrender decision was not unreasonable. The minister's conclusion that the United States did not materially assist or acquiesce in the Jordanian prosecution was reasonable. The United States did not request or assist in the Jordanian prosecution: the material provided by American authorities indicated that they were not even aware of the prosecution until after Q was sentenced in Jordan. The minister also reasonably found that the American judicial system would provide Q with due process, even if the particular defences and procedural protections available to him in the United States were different from those available to him in Canada. Extradition to face the possibility of life imprisonment without parole would not sufficiently shock the conscience of Canadians so as to make surrender unjust or oppressive.

United States of America v. Khadr (2011), 106 O.R. (3d) 449, [2011] O.J. No. 2060, 2011 ONCA 358, 234 C.R.R. (2d) 31, 280 O.A.C. 210, 85 C.R. (6th) 143, 273 C.C.C. (3d) 55, 337 D.L.R. (4th) 638, 98 W.C.B. (2d) 19 [Leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 316], distd [page642]

Other cases referred to

Canada v. Schmidt, [1987] 1 S.C.R. 500, [1987] S.C.J. No. 24, 39 D.L.R. (4th) 18, 76 N.R. 12, 20 O.A.C. 161, 33 C.C.C. (3d) 193, 58 C.R. (3d) 1, 28 C.R.R. 280, 2 W.C.B. (2d) 299; Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761, [2008] S.C.J. No. 23, 2008 SCC 23, EYB 2008-132986, J.E. 2008-970, 230 C.C.C. (3d) 449, 373 N.R. 339, 292 D.L.R. (4th) 193, 236 O.A.C. 371, 56 C.R. (6th) 336, 171 C.R.R. (2d) 280, 72 Admin. L.R. (4th) 30; United States of America v. Burns, [2001] 1 S.C.R. 283, [2001] S.C.J. No. 8, 2001 SCC 7, 195 D.L.R. (4th) 1, 265 N.R. 212, [2001] 3 W.W.R. 193, J.E. 2001-458, 148 B.C.A.C. 1, 85 B.C.L.R. (3d) 1, 151 C.C.C. (3d) 97, 39 C.R. (5th) 205, 81 C.R.R. (2d) 1, REJB 2001-22580, 48 W.C.B. (2d) 400; United States of America v. K. (J.H.), [2002] O.J. No. 2341, 160 O.A.C. 149, 165 C.C.C. (3d) 449, 4 C.R. (6th) 382, 54 W.C.B. (2d) 464 (C.A.); United States of America v. Kwok, [2001] 1 S.C.R. 532, [2001] S.C.J. No. 19, 2001 SCC 18, 197 D.L.R. (4th) 1, 267 N.R. 310, J.E. 2001-782, 145 O.A.C. 36, 152 C.C.C. (3d) 225, 41 C.R. (5th) 44, 81 C.R.R. (2d) 189, REJB 2001-23416, 49 W.C.B. (2d) 154

Statutes referred to

Canadian Charter of Rights and Freedoms

Extradition Act, S.C. 1999, c. 18, s. 25

APPEAL from the committal order of K.L. Campbell J. of the Superior Court of Justice dated December 4, 2012; APPLICATION for judicial review of the surrender order of the Minister of Justice dated October 20, 2014.

Anthony Moustacalis and D. Goldbloom, for appellant.

Moiz Rahman, for respondent.

[1] BY THE COURT: -- This appeal and application for judicial review concern the extradition of Jeries Yacob Qumsyeh to the United States.

[2] Mr. Qumsyeh is wanted in the United States for the 1982 murder of his ex-wife, Salwa Isaac. Mr. Qumsyeh is a citizen of the Kingdom of Jordan. He returned to his homeland before he was charged by United States authorities with Ms. Isaac's murder.

[3] In Jordan, Mr. Qumsyeh was prosecuted and convicted for the murder of Ms. Isaac, and sentenced to 15 years in prison. As part of a general amnesty, Mr. Qumsyeh was released from prison after serving six and a half years of his sentence.

[4] After Mr. Qumsyeh came to Canada in 2011, the United States requested his extradition so that he could be tried in Michigan for Ms. Issac's murder.

[5] The extradition judge ordered Mr. Qumsyeh's committal. He found that he had no jurisdiction to consider Mr. Qumsyeh's claim of abuse of process, which was based on an allegation of double jeopardy, and that such a claim was a matter for the minister to consider during the surrender phase. [page643]

[6] The minister ordered that Mr. Qumsyeh be surrendered, despite his prior trial and conviction for the same murder in Jordan.

[7] Mr. Qumsyeh appeals against the committal order and brings a judicial review application in respect of the surrender decision. Both the appeal and the judicial review application are based on the fact that Mr. Qumsyeh has already been convicted and sentenced in Jordan for the same offence for which the United States seeks extradition.

[8] For the reasons that follow, both the appeal and the judicial review application are dismissed.

Analysis

The appeal

[9] Mr. Qumsyeh submits that his appeal against committal should be granted because the committal judge erred in failing to stay the extradition procedure as an abuse of process. A principle of fundamental justice is that a person should not be placed in "double jeopardy" by being twice tried for the same offence. As he has already been tried and convicted of the murder, and served his sentence in Jordan, he says that it is an abuse of process for the United States to now seek to retry him for the same murder.

[10] We reject this submission. In our view, the committal judge correctly found that the double jeopardy claim was not within his limited Canadian Charter of Rights and Freedoms jurisdiction.

[11] The role of the committal judge under the Extradition Act, S.C. 1999, c. 18 is limited: he or she is to determine whether the foreign authority has put forward sufficient admissible evidence to make out a prima facie case against the fugitive.

[12] The source of the committal judge's jurisdiction to consider Charter issues is not inherent; it flows from s. 25 of the Extradition Act. Section 25 gives the committal judge jurisdiction to consider Charter issues that "pertain directly to the circumscribed issues relevant at the committal stage of the extradition process": United States of America v. Kwok, [2001] 1 S.C.R. 532, [2001] S.C.J. No. 19, 2001 SCC 18, at para. 57.

[13] The double jeopardy claim is not closely connected to the committal process. The committal judge properly saw that double jeopardy was a matter for the minister: see United States of America v. K. (J.H.), [2002] O.J. No. 2341, 165 C.C.C. (3d) 449 (C.A.), at para. 24. Contrary to the appellant's submission, this case is not like [page644] United States of America v. Khadr (2011), 106 O.R. (3d) 449, [2011] O.J. No. 2060, 2011 ONCA 358, at para. 45, leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 316, in which the requesting state obtained the evidence used at the committal hearing through its own misconduct.

The judicial review application

[14] Mr. Qumsyeh submits that the minister's decision is unreasonable because

(1) he made erroneous findings of fact;

(2) it resulted in him being forced to endure double jeopardy;

(3) extradition would constitute an abuse of process; and

(4) deporting someone to face life imprisonment without the possibility of parole would shock the conscience of the court.

[15] We do not accept these submissions.

[16] Before turning to these various grounds of appeal, we note that the standard of review of the minister's surrender decision is reasonableness and interference with that decision is limited to "exceptional cases of 'real substance'": Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761, [2008] S.C.J. No. 23, 2008 SCC 23, at para. 34.

Alleged erroneous findings of fact

[17] The applicant submits that the minister erroneously found that the United States did not materially assist the prosecution in Jordan or acquiesce in it.

[18] In our view, the minister's conclusion about the lack of United States' involvement in Mr. Qumsyeh's trial in Jordan was reasonable. The minister was entitled to rely on the information provided by the United States, which indicated that the American authorities did not request that Jordan prosecute Mr. Qumsyeh. Indeed, the record shows that the United States only learned of the prosecution after Mr. Qumsyeh had been tried, convicted and begun serving his sentence.

[19] As for the suggestion that the minister erred in finding that the applicant would be able to raise double jeopardy issues in the United States trial, we disagree. The minister did not ignore the applicant's evidence on American law nor did he treat it unreasonably. He said that it was not his role to attempt to anticipate whether that defence would succeed. Instead, the minister's focus was on whether the applicant would receive a fair trial in the United States. In our view, the minister did not act unreasonably. [page645]

The double jeopardy submissions

[20] Both the second and the third submissions relate to the applicant's double jeopardy claim.

[21] The minister concluded that the availability of the autrefois convict/acquit defence in the American proceedings was not determinative. He was of the view that the American judicial system would provide the applicant with due process, even if the particular defences and procedural protections available to him in the United States were different than those available to him in Canada.

[22] Were this a domestic prosecution, it is an open question whether the foreign conviction for murder would bar a Canadian prosecution for that murder. However, even if the foreign conviction would bar a subsequent Canadian prosecution, we do not see the minister's conclusion as unreasonable. In Canada v. Schmidt, [1987] 1 S.C.R. 500, [1987] S.C.J. No. 24, La Forest J. explained that a foreign justice system is not fundamentally unjust simply because its procedural or evidentiary safeguards differ from those of Canada. He held that surrender should only be refused where it offends against the basic demands of justice. The minister acted reasonably in following the principles set out in Schmidt.

[23] Furthermore, contrary to the appellant's submission, the minister did consider all of the relevant factors pertaining to this issue. This includes the applicant's personal circumstances and his treatment while in custody in Jordan. At p. 10 of his surrender decision, the minister states that for the purposes of his decision, he accepted as true Mr. Qumsyeh's evidence that he was tortured and subject to deplorable prison conditions while in Jordanian custody. We note that there is no suggestion whatsoever that the United States was implicated in or even aware of this.

Would surrender shock the conscience?

[24] If the applicant is convicted of first degree murder in Michigan, he will receive a mandatory life sentence without the possibility of parole. He says that this harsh punishment would shock the conscience of the Canadian public and, consequently, that the minister's decision to surrender him is unreasonable.

[25] Extradition to face the possibility of life imprisonment without the possibility of parole is not unreasonable: United States of America v. Burns, [2001] 1 S.C.R. 283, [2001] S.C.J. No. 8, 2001 SCC 7. In Burns, the Supreme Court refused to allow extradition where the accused would face the death penalty. However, at para. 71 of Burns, the court states that although a sentence of life imprisonment without parole is not a sentence [page646] available in Canada, the minister's surrender decision would not sufficiently shock the conscience of Canadians so as to make surrender unjust or oppressive where that is the sentence facing the accused in the foreign jurisdiction.

[26] In light of Burns, it cannot be said that the minister's decision is unreasonable.

Disposition

[27] Accordingly, the appeal and application are both dismissed.

Appeal and application dismissed.

End of Document