CITATION: Attorney General of Canada v. Iusein, 2016 ONSC 6758

COURT FILE NO.: 13-90000042-00MO

DATE: 20161031

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF ROMANIA

Respondent

– and –

GIVAN IUSEIN

Applicant

Heather Graham, for the Respondent

Paul Genua and Najma Jamaldin, for the Applicant

HEARD: October 7, 2016

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON DISCLOSURE APPLICATION

[1] On July 10 1992 Mr. Iusein, the person sought, was in Constanta, Romania. At the time he was a permanent resident of this country. He eventually became a citizen. He became involved in some way with a scuffle that became a fight that became a murder. On January 10, 1994 Mr. Iusein was convicted of murder in the Constanta Court of Justice. The Court sentenced him to 18 years imprisonment. His appeal was dismissed on December 17, 1994. He began serving his sentence but on December 16, 1994 he was released from the penitentiary for medical reasons. His sentence was “interrupted” and he was released for a total of 21 months while he received medical treatment. He says in his current affidavit that he was subjected to severe torture and beatings in the Romanian prison system. The torture and beatings caused the health issues. The Romanian authorities say he was released because he had hepatitis.

[2] Mr. Iusein left Romania some time after December 16 1994 and eventually returned to Canada in November or December 1996.

[3] On August 10, 2009 Romania filed an extradition request with the Department of Justice and submitted a Record of the Case. Romania submitted a Supplemental Record of the Case on August 27, 2012. Romania appears to have submitted the Supplemental Record in response to queries from the Department of Justice. On January 9, 2013 the Minister of Justice issued an Authority to Proceed against Mr. Iusein. The Minister seeks extradition to Romania in order to enforce the sentence that was pronounced on him. The corresponding Canadian offence is murder contrary to s. 229 of the Criminal Code.

[4] Mr. Iusein is currently in custody. He was originally arrested on an extradition warrant in February 2013 and released on bail in March of that year. In April 2013 one of his sureties withdrew. Mr. Iusein failed to attend a court date. This Court issued a bench warrant. The police located Mr. Iusein on March 10, 2015 and arrested him. He has been in custody ever since.

[5] Mr. Iusein’s counsel, Mr. Genua, argues that it would be an abuse of process to extradite him because of the torture and beatings. He seeks disclosure of various materials in order to build his abuse of process motion. Mr. Genua also argues that the delay by Romania has prejudiced his client’s right to a fair hearing. There was a delay between the initial request from Romania and the Authority to Proceed of over 4 years. Finally, Mr. Genua argues that translation errors in the Record of the Case show that there was a deliberate attempt by the Romanian authorities to mislead the Canadian authorities.

[6] Mr. Genua requests the following material (I reproduce his list verbatim):

(a) All correspondence between the Canadian government and the Romanian government concerning the issue of Mr. Iusein’s extradition from Canada to Romania;

(b) All correspondence that any department or ministry of the Canadian government has ever had with the Romanian government concerning Mr. Iusein;

(c) All information in the possession of the Ministry of Citizenship and Immigration Canada concerning Mr. Iusein, dating back to the time when first entered Canada;

(d) All information in the possession of the Canada Border Services Agency concerning Mr. Iusein, dating back to the time when he first entered Canada;

(e) The entire file/dossier in the possession of either the Romanian government or the Canadian government (which has not yet been disclosed in the ROC [Record of the Case]) in relation to the arrest, interrogation, trial, appeal, sentencing, and incarceration of Mr. Iusein for the murder conviction in Romania for which extradition is now sought.

[7] As I understand Mr. Genua’s argument, he seeks disclosure largely directed towards the issue of torture. I find, however, that there is no air of reality to Mr. Iusein’s claim. Furthermore, the translation errors have no relevance to the decision to be made by the extradition judge. I also find that the allegation of delay has no bearing on this extradition hearing. For the reasons that follow, the application is dismissed.

ANALYSIS

[8] In domestic prosecutions, the Superior Court has the authority to impose a stay of proceedings as a remedy for an abuse of process. Ordinarily a stay is imposed to remedy procedural unfairness. There is, however, a residual category that comes into play where continuing the court process would violate the community’s sense of fair play and decency.

[9] The court also has the authority to stay extradition proceedings. The court may do so whether the remedy is sought pursuant to the Charter or the common law: United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587; United States of America v. Khadr, 2011 ONCA 358, 106 O.R. (3d) 449. The jurisdiction, however, flows from s. 25 of the Extradition Act. The person sought must demonstrate a nexus between the abusive conduct and the committal hearing itself: United States of America v. Whyte, 2016 ONCA 624.

[10] In a typical domestic prosecution the Crown disclosure would ordinarily provide the information required to mount an abuse of process application. Sometimes a third party records application is required: R. v. McNeill, 2009 SCC 3, [2009] 1 S.C.R. 66; R. v. O’Connor 1995 51 (SCC), [1995] 4 S.C.R. 411. The Crown’s usual disclosure obligations do not apply to the Attorney General in the extradition context: United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532.

[11] How, then, is a defence lawyer to build a record for an abuse of process application in the extradition context? As Doherty J.A. acknowledged in R. v. Larosa (2002), 2002 45027 (ON CA), 166 C.C.C. (3d) 449, [2002] O.J. No. 3219 (C.A.) the information may well be in the possession of the government. The answer, therefore, is a request for production. That said, the court must still exercise its gatekeeper function. The court must do so to prevent fishing expeditions. The court must also ensure that abuse of process applications are properly focussed on the issues. That is because the extradition process is meant to be simple and efficient. An extradition hearing is not a trial: United States of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462.

[12] Accordingly, as Doherty J.A. set out in Larosa, an applicant for production must show that:

• the allegations must be capable of supporting the remedy sought;
• there must be an air of reality to the allegations; and
• it must be likely that the documents sought and the testimony sought would be relevant to the allegations.

[13] Although Doherty J.A. was dealing with a domestic prosecution, some authorities held that the Larosa test did not apply at the committal stage, only the ministerial stage: United States of America v. Qumsyeh, 2012 ONSC 5987. That issue was laid to rest in United States of America v. Mathurin, 2015 ONCA 581 where Benotto J.A. (without analysis) indicated that the Larosa test did apply at the committal stage.

[14] There is no issue that the allegations are capable of supporting the remedy sought. Torture at the hands of the Romanian authorities might well lead to a stay of the extradition proceedings. The real issues are

(a) whether there is an air of reality to the allegations;

(b) whether the documents sought would be relevant to the allegations

(c) whether the translation errors are material; and,

(d) whether documents sought in relation to the alleged delay should be disclosed.

ISSUES

(a) Is there an air of reality to the torture allegations?

[15] Mr. Genua argues that Mr. Iusein’s affidavit sets out a sufficient basis to establish an air of reality to the torture allegations. There is also solid evidence that there was serious abuse in the Romanian justice system at the time.

[16] I respectfully disagree. There is certainly plenty of evidence of systemic torture at the hands of the Romanian authorities at the time. Mr. Iusein’s evidence, however, falls far short of establishing that he was a victim of it. In short, his allegations are simply not credible.

[17] Mr. Iusein set out in his affidavit a horrific litany of torture and abuse at the hands of the Romanian authorities. The torture began when he was first arrested and detained. He says that he is innocent of the crime of murder. He says that he was wrongfully convicted on the basis of a confession that was extracted by torture. He describes in his affidavit beatings with fists and sticks. He says that he was blindfolded and handcuffed to a chair, water-boarded, and hung from the ceiling by his wrists. He also says that he was subjected to electric shocks with electrodes attached to his testicles. Finally, he says that the prosecutor assigned to his case sexually assaulted him five or six times. He confessed to stop the torture.

[18] Mr. Iusein also described the trial. He says that the court relied on the confession extracted under torture. He says that the trial was so unfair that his lawyer walked out, saying that he could not represent him under those conditions.

[19] After his conviction, Mr. Iusein was transferred to the penitentiary. He says that he was in such poor physical shape from the beatings that he required significant medical attention. He was released so that he could enter the hospital. His sentence was “interrupted” for 21 months while he received medical treatment. He says he was advised to leave Romania and did so in 1994.

[20] Mr. Genua argues that in order to establish an “air of reality” I must accept the allegations of torture in his client’s affidavit without weighing the evidence. He urges me to adopt the test for an “air of reality” as set out in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3. In that case, the Supreme Court considered how a trial judge should deal with a self-defence claim in the context of a jury trial. The question was whether self-defence should be left to the jury. The Supreme Court determined that a trial judge was required to consider whether there was a basis in the evidence upon which a reasonable jury, properly instructed, could acquit. The trial judge must not weigh the evidence, make findings of fact, or draw inferences: Cinous at para. 86. In the context of a disclosure motion, Mr. Genua argues that Cinous applies. He says that I must accept Mr. Iusein’s evidence taken at its highest.

[21] I cannot accept that submission. I am in a very different position than a judge presiding over a jury trial. The “air of reality” that the defence must establish at a jury trial is not the same “air of reality” as to be made at a disclosure motion. There are some similarities - judges at a jury trial and at a disclosure application both exercise a gatekeeper function. Different gates are being guarded, however. A judge at a trial exercises a gatekeeper function to be sure that only those defences that have a realistic possibility of success face the jury. The judge does not weigh the evidence because that would usurp the fact-finding function that is such a critical part of a jury trial.

[22] On the other hand, a judge at an extradition hearing is required to prevent wasteful fishing expeditions. If no scrutiny were applied to the allegations by the disclosure judge, then any applicant could set off a series of unproductive inquiries to any department of the government. That interpretation would authorize fishing expeditions based only on someone’s untested say-so. That interpretation also flies in the face of Larosa: at para. 78:

The "air of reality" requirement comes from R. v. Kwok, supra, at 267-69. An "air of reality" means some realistic possibility that the allegations can be substantiated if the orders requested are made.

[23] See also: United States of America v. Vreeland (2002), 2002 49652 (ON SC), 164 C.C.C. (3d) 266, [2002] O.J. No. 919 (Sup.Ct.) at paras. 29-37.

[24] I am mindful that these kinds of allegations are extremely serious. They must be taken very seriously and examined carefully. These sorts of allegations engage the most important of Canadian values. The Court must never condone torture or be seen to condone torture. There is certainly evidence that the Romanian prison system in the early 1990’s saw widespread abuse, ill treatment of prisoners, and wretched conditions. There are, however, four major problems with Mr. Iusein’s credibility.

[25] The first problem is that the Record of the Case indicates that the Romanian court did not rely on a confession. According to the Record of the Case, Mr. Iusein gave a statement to the prosecutor three days after his arrest. Mr. Iusein denied assaulting or stabbing the victim. Mr. Iusein also gave two statements in open court. In both he denied stabbing the victim (the cause of death was stabbing). He said that he punched the victim in order to defend himself. There is no suggestion that the record of the case contains anything other than the judgment of the Romanian court. In other words, contrary to Mr. Iusein’s assertion the Romanian court did not, it appears, rely on his confession. It seems that the court rejected his defence of self-defence.

[26] The second problem is that the evidence up until Mr. Iusein’s most recent affidavit – including his own previous affidavit – is that he was released from the penitentiary because he had hepatitis and gastric ulcers. According to the Supplementary Record of the Case, Mr. Iusein requested a release from prison to deal with chronic hepatitis. He received several extensions for his medical treatment but fled when no further extensions were granted.

[27] The evidence in the Supplementary Record of the Case is corroborated by Mr. Iusein’s bail hearing affidavit. He swore that affidavit in February 2013. He stated the following:

“I served 2.5 years in prison before being released on medical leave to treat hepatitis and an ulcer. After seeking medical treatment I was told by the police in Romania to leave the country and I did without experiencing any complications.”

[28] Mr. Iusein was cross-examined on his affidavit at the bail hearing. He confirmed that had been granted medical leave in order to leave prison. He also admitted that he fled from Romania. That was different from the version of events he swore in his bail hearing affidavit. In that affidavit he swore that the police simply told him that he could leave. Mr. Iusein gave a third version of how he left Romania in his current affidavit: he said that his doctor, a high government official, encouraged him to leave the country.

[29] The third problem with Mr. Iusein’s evidence is that his citizenship file contradicts virtually every claim in his affidavit. His file was obtained by the Attorney General and disclosed at Mr. Genua’s request. It was reproduced in the Attorney General’s responding record. Mr. Iusein arrived back in Canada, according to his evidence, in November or December 1996. He submitted his citizenship application some time in 1997. He failed to disclose the fact that he had been convicted of murder in Romania in 1994. In fact, although he spent over three years in Romania between 1992 and 1996, he indicated that he had spent only 190 days away from Canada between June 1996 and December 1996. On his residence questionnaire Mr. Iusein indicated that he left Canada on June 7, 1996 to visit family. He indicated that he had to spend extra time in Romania in order to sell some family property. That, of course, was a lie. The obvious inference is that he hid his murder conviction.

[30] Mr. Iusein indicated in his current affidavit that he never hid his murder conviction from Canadian immigration and citizenship officials. He swears that one official asked him how he got into trouble in Romania. Another official, he says, was not interested. He swears in his affidavit that the four years it took him to obtain citizenship was a result of the investigation that the authorities did into his Romanian conviction.

[31] That seems very unlikely. There is also nothing to substantiate his assertion that Canadian officials were investigating his murder conviction. Still less was there anything to suggest that Canadian immigration and citizenship officials were even aware of his conviction. There was clearly an investigation of some kind. It may have had something to do with the Canadian criminal record that Mr. Iusein managed to accumulate. It may also have had something to do with the fishiness (so to speak) of his story. At least one memo by an immigration officer in 1997 was sceptical of his story and suggested that, contrary to his questionnaire he had lived in Romania from 1992 to 1996. There is no indication in the file that the immigration officer learned the real reason.

[32] The fourth problem is simply that Mr. Iusein never raised these torture allegations, despite opportunities to do so. In fairness, I am aware that it may well be difficult for torture victims to relate their stories. I am also aware that it may be particularly difficult in cases of sexual violence. I am mindful that Mr. Iusein did mention that he was beaten during the cross-examination on his original bail hearing. The basic problem, however, is that he had a positive duty to disclose his conviction. He could have done that, and made the allegation of torture at that time. He could have made the allegation of torture in his bail affidavit. He did not do so – in fact he positively affirmed that he was released from prison for health reasons related to hepatitis and ulcers. He said nothing about torture, which was the reason he gives in his current affidavit. His current detailed affidavit simply smacks of fabrication, given all of these other lies and misrepresentations.

[33] Accordingly, there is no air of reality to the claim of torture.

[34] Mr. Iusein is not left without a remedy. There is certainly an air of reality that there is, or at least was, widespread abuse in the Romanian prison system. Whether Mr. Iusein should be returned to Romania under those circumstances is fundamentally a question for the Minister of Justice. Mr. Iusein may renew his request at that stage: United States of America v. Kwok, paras. 100-101, 107.

(b) Are the documents sought relevant to the allegations?

[35] As Doherty J.A. pointed out at para. 77 of Larosa, “there is no point in engaging in a lengthy evidentiary inquiry where it cannot in law yield the result sought…” That is the case here. Frankly, much of the material sought is not relevant or is simply a fishing expedition. Given my finding that there is no air of reality to the allegation of torture, I do not need to go through each of the categories of documents in great detail. I will, however, briefly do so for the sake of completeness:

[36] All correspondence that any department or ministry of the Canadian government has ever had with the Romanian government concerning Mr. Iusein: It is difficult to describe this request as anything other than a fishing expedition. There is no suggestion, for example, that Mr. Iusein’s family sought Canadian consular assistance while he was in prison due to concern about prison conditions. This is an unfocussed request that has no nexus to the issues that have to be decided on a committal hearing.

[37] All information in the possession of the Ministry of Citizenship and Immigration Canada concerning Mr. Iusein, dating back to the time when first entered Canada: The key information has already been disclosed, and it does not assist Mr. Iusein. Rather, it reveals an active attempt to conceal his murder conviction from Canadian authorities.

[38] All information in the possession of the Canada Border Services Agency concerning Mr. Iusein, dating back to the time when he first entered Canada: Again, it is difficult to see how any of this information could have any relevance to anything to be decided at the committal stage. The key interaction with CBSA was Mr. Iusein’s entry to the country in November or December 1996. According to his own evidence, CBSA made a few inquiries and let him go after about 30 minutes. He did not disclose his murder conviction or torture at the hands of the Romanian authorities. Mr. Iusein has not suggested that there were any other relevant interactions with CBSA or its predecessor. If, for example, Mr. Iusein had taken a shopping trip to Buffalo in 1989, how would that be relevant to the issues on an extradition hearing? Again, this part of the request smacks of a fishing expedition.

[39] The entire file/dossier in the possession of either the Romanian government or the Canadian government (which has not yet been disclosed in the ROC [Record of the Case]) in relation to the arrest, interrogation, trial, appeal, sentencing, and incarceration of Mr. Iusein for the murder conviction in Romania for which extradition is now sought: There is no jurisdiction to order a foreign government to produce documents: R. v. Lore (1997), 1997 10604 (QC CA), 116 C.C.C. (3d) 255 (Que.C.A.); United States of America v. Go, 2008 38267 (ON SC), [2008] O.J. No. 3012 (Sup.Ct.). Mr. Genua conceded as such in his submissions. It is also difficult to see how the entire Canadian government file would have any relevance to anything to be decided at the committal phase. What information would be in the file that could relate to torture and abuse by the Romanian government in the early 1990’s? It is clear that the Department of Justice asked the Romanian government to respond to Mr. Iusein’s allegations of torture and ill-treatment. The Romanian government responded with further information.

[40] Mr. Genua suggested that I could order the Attorney General to seek the documents from the Romanian government. He cites United States of America v. Kerfoot, [2013] B.C.J. No. 598 (B.C.S.C.) where Maisonville J., quoting an earlier ruling of his, stated:

While this Court would not have jurisdiction to order the Requesting State to produce documents, the Court could order that counsel for the Attorney General of Canada produce documents in its possession, control, or power or seek these documents from the Requesting State.

[41] With great respect, I have some doubts about the correctness of that statement insofar as a foreign state is concerned. A judge at an extradition hearing has a very limited function. That function is circumscribed by s. 29 of the Extradition Act:

29 (1) A judge shall order the committal of the person into custody to await surrender if

(a) in the case of a person sought for prosecution, there is evidence admissible under this 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; and

(b) in the case of a person sought for the imposition or enforcement of a sentence, the judge is satisfied that the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed and that the person is the person who was convicted.

[42] The evidence sought must have some relevance to committal: Whyte at paras. 45-46. The only possible reason to ask the Attorney General to obtain the file would be to re-litigate Mr. Iusein’s murder trial here, in Canada, as part of his extradition hearing. I simply do not see where my jurisdiction comes from to make such an order. Such an order would also run entirely counter to the theory and practice of extradition as it is understood in this country. In any event, given my finding that there is no air of reality to the allegation of abuse and torture, it is not necessary for me to go further.

(c) Are the translation errors material?

[43] Mr. Genua argues that the Romanian government has sought to perpetuate the abuse of Mr. Iusein. This abuse consists of deliberately attempting to manipulate the judicial process in this country by misstating facts in the Record of the Case. He argues that this is a relevant factor in determining whether disclosure should be made.

[44] I disagree for two reasons. First, there is no indication, let alone evidence, of deliberate manipulation. Second, even if the Romanian government did deliberately seek to manipulate the proceeding, that would not give rise to a basis to order disclosure in this case.

[45] I accept that there were material translation errors in the Record of the Case. Those errors were corrected with a fresh translation of the Record of the Case. As counsel for the Attorney General points out in her submissions, Mr. Iusein raised the deliberate manipulation issue for the first time in his amended factum. That was after he had received the corrected Record of the Case. There is simply no basis or evidence to suggest that there was a deliberate attempt at manipulation. This situation seems to be similar to the one in United States of America v. Wacjman (2002), 2002 38007 (QC CA), 171 C.C.C. (3d) 134 (Que.C.A.).

[46] The second reason is this: I accept that deliberate manipulation may well go to the issue of a stay of proceedings. Certainly Mr. Genua is free to raise it. That said, it is hard to see why or how it is tied to production of any particular document or class of documents.

(d) Should documents sought in relation to the alleged delay be disclosed?

[47] Mr. Genua argues that Mr. Iusein requires correspondence between the Department of Justice and the Romanian government. He argues that Mr. Iusein needs it to establish that there has been delay that has prejudiced his right to a fair hearing. There may have been deliberate delay on the part of the Romanian government. Further, he points to the fact that the original Record of the Case was received in 2009 but the Authority to Proceed only issued in 2013.

[48] I disagree. There are two types of delay in an extradition matter. The first is delay at the hands of the extradition partner. That delay is generally something for the Minister to consider at the surrender phase: Republic of Argentina v. Mellino, 2001 SCC 18, [2001] 1 S.C.R. 532. Although Mellino has been overtaken to some degree, the settled law now is that an extradition judge may consider delay where it compromises the fairness of the extradition hearing: United States of America v. Gillingham, 2004 BCCA 226 at para. 91. A court will grant a stay only in the clearest of cases: Mellino. If the delay has not compromised the fairness of the hearing, then it remains a matter for the Minister.

[49] Mr. Genua is simply unable to point to anything, other than the length of the delay itself that would compromise the fairness of the hearing. He points to the lengthy period of time and inevitably fading memories. That, he argues, inevitably compromises Mr. Iusein’s ability to make an investigation of the torture allegations. That submission bumps against the same hurdle as the other submissions: Mr. Iusein’s assertions simply have no air of reality.

[50] The second delay is the delay occasioned by the Canadian government between the time the Record of the Case was received and the Authority to Proceed was issued. That delay must also have relevance to Charter issues at the committal hearing in order for production to be ordered: Kwok, at para. 44. In this case, that must mean that Mr. Iusein’s right to a fair hearing has been compromised by the delay.

[51] There are two problems with this submission in relation to this second type of delay. The first problem is that a perusal of the material explains the delay. There is no mystery. The Romanian government sent the Supplementary Record of the Case in response to queries by the Department of Justice. The Romanian government sent the July 2016 material in response to the allegations made by Mr. Iusein. The second problem is the same as the main problem with the first type of delay: Mr. Iusein’s assertions have no air of reality.

[52] Accordingly, I will not order production of documents in relation to the alleged delay.

DISPOSITION

[53] The application is dismissed.

R.F. Goldstein J.

Released: October 31, 2016

CITATION: Attorney General of Canada v. Iusein, 2016 ONSC 6758

COURT FILE NO.: 13-90000042-00MO

DATE: 20161031

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF ROMANIA

Respondent

– and –

GIVAN IUSEIN

Applicant

REASONS FOR JUDGMENT ON DISCLOSURE APPLICATION

R.F. Goldstein J.