CITATION: The Attorney General of Canada v. Nuradin et al., 2015 ONSC 5934
COURT FILE NO.: 14-90000047
DATE: 20151006
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF an Application pursuant to section 29 of the Extradition Act for orders committing IDRIS NURADIN and HABONE GAYAD to await the Minister’s decision on whether they should be surrendered to the United States of America
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Respondent/Requesting State
– and –
IDRIS NURADIN and HABONE GAYAD
Applicants/Persons Sought for Extradition
Nancy Dennison, Counsel for the Attorney General of Canada
HEARD: September 23, 2015
DUNNET J. (Orally):
RULING ON APPLICATION TO ADDUCE CELL PHONE VIDEO
[1] The Minister of Justice has issued an authority to proceed pursuant to s. 15 of the Extradition Act, S.C. 1999, c.18, seeking an order for the committal for extradition of the applicants who are sought for prosecution by the United States of America for defrauding victims in the requesting state through a telemarketing fraud scheme.
[2] On the committal hearing, the applicants seek to adduce a video taken by the sister of the applicant Habone Gayad on February 16, 2012, when Police Officer Allan Spratt attended at the applicants’ apartment in relation to property that had been seized from their apartment during the execution of a search warrant on August 7, 2009.
[3] The applicants submit that the officer intimidated and harassed them and coerced them into signing a document relinquishing the documents and property seized. They allege that the officer told them that the request for consent had nothing to do with the extradition process.
[4] They allege further that the officer tried to persuade them to cooperate with Canadian authorities because “dealing with the USA authorities, especially District Attorneys like Ellyn Lindsay [who submitted the request for extradition], is a totally different ball game.” It is the applicants’ position that the video is relevant to the credibility of the officer.
[5] Counsel for the respondent does not oppose the court viewing the video, but takes the position that it is not relevant to the committal hearing. It is counsel’s position that this court has already ruled on the matter in the applicants’ motion to stay the proceedings for abuse of process, which was dismissed.
[6] This issue was first raised on an application by the Attorney General of Ontario on behalf of the United States for a sending order pursuant to s. 20 of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c.30 (4th Supp.) (MLACM Act). The Attorney General of Canada sought an order to be removed as a party to the application and to strike certain Charter relief claimed by Nuradin and Gayad.
[7] In their grounds for Charter relief, the applicants stated:
On February 16, 2012, Det. Allan Spratt attended the applicants’ home, and again asked the applicants to sign papers indicating that they did not want the property seized from their home returned to them. The applicants explained that they had applied for Legal Aid on the extradition, and that they wished to have legal advice before signing anything. Det. Spratt told the applicants the extradition was a different matter from the reason for his visit to their home. He also told them that a lawyer would not be able to help them. He made a comment to the effect that if they fought their extradition in Canada, they would only receive a longer sentence in the United States.
[8] In his reasons released on December 17, 2012, A.J. O’Marra J. stated:
Gayad and Nuradin allege that during the time they were remanded to set a date for the extradition hearing and in the process of trying to retain counsel, officers of the Toronto Police Service tried to obtain their consent to relinquish interest in the documents and property seized from their apartment. They allege the officers told them the request for consent had nothing to do with the extradition process. They refused to consent until they had the advice of counsel. (2012 ONSC 7201 at para. 9)
[9] O’Marra J. held that the Attorney General of Canada was not a party to the MLACM Act sending order application, granted the application to be removed as a party and struck the Charter relief sought by Nuradin and Gayad.
[10] In my ruling on the application to stay the proceedings for abuse of process, it states:
Further, they allege that Detective Allan Spratt came to their apartment on February 16, 2012 and tried to induce them to forfeit the evidence needed for the extradition hearing by telling them that if they agreed to forfeit all the property seized from their apartment in 2009, they could have their own money returned to them. The applicants contend that the officer told them that forfeiture was a separate matter from the extradition proceedings and that fighting extradition would result in greater punishment in the United States than in Canada.
The applicants made a video of their conversation with Detective Spratt on their cellular telephone. During argument, they produced a transcription they made of part of the conversation. I note that in their “transcribed” document, they advise the officer that they will not consent to forfeiture until they have had the advice of counsel.
[11] I found that there was no air of reality to the alleged misconduct of the officer amounting to an abuse of process warranting a stay of the extradition proceedings.
[12] Section 32(1)(c) of the Extradition Act provides that evidence may be adduced by the person sought for extradition if it is relevant to the tests set out in s. 29(1) of the Act and if the judge considers it reliable.
[13] Section 29(1) of the Act provides that a judge shall order the committal of the person into custody to await surrender if there is evidence admissible under the Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner.
[14] In United States of America v. Anderson (2007), 2007 ONCA 84, 85 O.R. (3d) 380, at para. 46, the Court of Appeal held, in connection with the doctrine of “manifest unreliability” in extradition proceedings:
The extradition judge must be satisfied that the proffered evidence could, when considered in combination with the rest of the record, lead him or her to conclude that evidence offered by the requesting state that is essential to the committal for extradition is so manifestly unreliable or defective that it should be disregarded for the purposes of determining whether the requesting state has met its evidentiary burden under s. 29(1)(a).
[15] I have had the opportunity to view the video and the transcription prepared by the applicants. I am of the opinion that the transcription fairly accurately records what transpired.
[16] It is clear that anything said by the officer did not coerce the applicants into signing any document. They repeatedly told the officer that they had to speak with their lawyers. Further, during argument on this application, Gayad confirmed that the applicants did not sign anything.
[17] On the video, the officer explains to the applicants that the reason he is there is to prepare a report for the court about what will happen to the property “so if there is anything that we seized that you specifically want back and feel that you are legally entitled to …”. The officer repeatedly tells the applicants that they should take the advice of their lawyers. There is nothing on the video or in the transcription that suggests that the officer is asking the applicants to admit ownership in the property seized.
[18] Thus, I am not persuaded that the evidence sought to be adduced either merits revisiting the abuse of process application or is relevant to the committal hearing.
[19] The application is dismissed.
DUNNET J.
Released: October 6, 2015
CITATION: The Attorney General of Canada v. Nuradin et al., 2015 ONSC 5934
COURT FILE NO.: 14-90000047
DATE: 20151006
ONTARIO
SUPERIOR COURT OF JUSTICE
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Respondent/Requesting State
– and –
IDRIS NURADIN and HABONE GAYAD
Applicants/Persons Sought for Extradition
RULING ON APPLICATION TO ADDUCE CELL PHONE VIDEO
DUNNET J.
Released: October 6, 2015