Court File and Parties

Court of Appeal for Ontario Date: 20231031 Docket: C70630 (COA-22-CR-0452)

Gillese, Brown and Nordheimer JJ.A.

Between:

The Attorney General of Canada on behalf of the United States of America Respondent (Respondent)

and

Khodor Ken Aboutaam a.k.a. Ken Aboutaam a.k.a. Khodor Aboutaam Applicant (Appellant)

Counsel: Leo Adler and Kevin Gray, for the appellant Roy Lee, for the respondent

Heard: October 25, 2023

On appeal from the order of committal for extradition by Justice Kirk W. Munroe of the Superior Court of Justice on May 18, 2022, and on judicial review of the order of surrender of the Minister of Justice, dated December 7, 2022.

Reasons for Decision

[1] The Attorney General of Canada, on behalf of the United States of America, sought the extradition of Khodor Ken Aboutaam on fraud-related charges. The appellant was ordered committed for extradition. The Minister of Justice subsequently ordered his surrender. He now appeals the extradition order and seeks judicial review of the Minister’s surrender order. At the conclusion of the hearing, we dismissed the appeal and the application for judicial review, with reasons to follow. We now provide our reasons.

[2] The record of the case before the extradition judge alleged that the appellant, through his immigration consulting firm headquartered in Windsor, was engaged in fraudulently obtaining Temporary Agricultural Worker visas for illegal aliens living in the U.S. In particular, the appellant was said to have counselled these illegal aliens on how to fraudulently obtain these temporary foreign worker visas by falsely stating that they lived outside the U.S. The U.S. investigation began in 2012. In October 2016, an indictment was filed against the appellant.

[3] The main issue on the extradition hearing was whether the appellant was the person who had counselled these illegal aliens on how to obtain these visas. On that point, in the record of the case, two witnesses had been shown different photographs of the appellant. One witness was one of the illegal aliens involved. The other was a special agent from the U.S. Department of Homeland Security, who worked in an undercover capacity as part of the investigation. Both witnesses identified the appellant as the person with whom they had dealt. In addition to this evidence, there was considerable evidence in the record of the case from other witnesses, some of whom were employees of the appellant’s firm, regarding meetings and other communications that had taken place between the appellant and various illegal aliens or persons for whom those illegal aliens worked.

[4] One photograph was from the appellant’s passport application and one was from his driver’s licence. The appellant complains that the Canadian Border Security Agency (“CBSA”) sent his passport photograph and his passport application to the U.S. authorities without his consent and without any judicial authorization. Before the extradition judge, he sought a stay of the extradition proceedings, pursuant to s. 24(1) of the Charter of Rights and Freedoms, based on an alleged breach of his rights under s. 8. Alternatively, he sought to have the evidence of his passport photograph excluded from the evidence on the extradition hearing, pursuant to s. 24(2) of the Charter, for the same alleged s. 8 breach.

[5] The extradition judge made two separate rulings regarding the passport application and photograph issue. On the request for a stay, he ruled that, assuming there had been a breach of s. 8, this was not one of those “clearest of cases” where a stay would be warranted: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31. This decision was discretionary and is entitled to deference. We do not see any error in the extradition judge’s conclusion on this issue.

[6] On his ruling regarding the exclusion of the evidence under s. 24(2), the extradition judge did not reach any definitive conclusion as to whether the appellant had a subjective expectation of privacy in his passport photograph. He did note that the appellant had not asserted such an expectation of privacy in his affidavit. Rather, the extradition judge decided the alleged s. 8 breach based on his conclusion that, if there was a subjective expectation of privacy, it was not objectively reasonable. In so concluding, the extradition judge specifically referred to the fundamental purpose of a passport photograph, which is to be shown to others, including government authorities, both in this country and in others.

[7] We do not see any error in the extradition judge’s conclusion in this regard. His reasoning regarding the purpose of a passport photograph is sound, as is his point that the passport itself remains the property of the federal government at all times. While recognizing that ownership is “but one factor” in the reasonable expectation of privacy analysis, the extradition judge properly relied on the appellant’s lack of ownership to support his finding that there was no reasonable expectation of privacy. We would add that this conclusion appears to be consistent with the reasoning in United States of America v. Anekwu, 2009 SCC 41, [2009] 3 S.C.R. 3, where Charron J. found that there was no s. 8 Charter violation regarding the use of an immigration photograph of the person sought.

[8] This conclusion is dispositive of the s. 8 issue. As McLachlin C.J. said, in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 12: “[if] the claimant did not have a reasonable expectation of privacy in the subject matter of the alleged search, then the state action cannot have violated the claimant's s. 8 right”.

[9] On another point, the appellant renewed his request before us for additional disclosure from the government regarding “all information and communications” shared with the U.S. authorities. While the scope of that request was unclear, counsel said that it related at least to non-public information shared by CBSA with the U.S. authorities. On this same point, the appellant sought to file fresh evidence that the CBSA had provided the passport application of his wife to the U.S. authorities [^1].

[10] We would not admit the fresh evidence. It does not satisfy the test in R. v. Palmer, [1980] 1 S.C.R. 759, as it is not relevant to any issue raised by the appellant. On the same basis, we agree with the extradition judge that there was no sound basis for the appellant’s request for additional disclosure. It does not satisfy the test set out in R. v. Larosa (2002), 166 C.C.C. (3d) 449 (Ont. C.A.), at para. 76. In particular, the appellant’s reason for the request does not have an air of reality nor are the documents sought relevant to the committal issue.

[11] Finally, on his judicial review application, the appellant complains that the Minister “effectively and improperly delegated his authority to the extradition judge”. This submission appears to be based on the fact that the Minister did not separately consider the issues surrounding the photographs and the passport application. In addition, the appellant complains that the Minister did not consider whether he “would better be prosecuted in Canada” citing the principles from United States of America v. Cotroni, [1989] 1 S.C.R. 1469.

[12] We do not see any merit to either of these submissions. The Minister was entitled to rely on the extradition judge’s rulings on the s. 8 Charter issues. The Minister considered all of the Cotroni factors and gave detailed reasons for his conclusion that prosecution in the U.S. was preferable to prosecution in Canada. That conclusion was a reasonable one and is entitled to deference from this court.

[13] It is for these reasons that the appeal and the application for judicial review were dismissed as was the motion to file fresh evidence.

“E.E. Gillese J.A.”

“David Brown J.A.”

“I.V.B. Nordheimer J.A.”

[^1]: The appellant’s wife was separately charged in the U.S. investigation and was arrested when she entered the U.S. on September 14, 2016.