CITATION: AG of Canada v Mihaj, 2017 ONSC 6784

COURT FILE NO.: CR-17/9-064-00M0

DATE: 20171130

SUPERIOR COURT OF JUSTICE (TORONTO REGION)

IN THE MATTER OF an Applicant to pursuant to section 29 of the Extradition Act for an order committing Fabian Mihaj a.k.a. Nikolin Rica a.k.a. Arben Shtogal into custody to await the Minister’s decision on whether he should be surrendered to the United States of America

BETWEEN:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA

Applicant/Requesting State

– and –

FABIAN MIHAJ

Respondent/Person sought for Extradition

Adrienne Rice for the Crown

C.A. Morrow, for the Respondent

HEARD: October 13, 2017

G. DOW, J.

REASONS FOR DECISION

[1] The United States of America has requested extradition of an individual detained in Canada since December 20, 2016. In these proceedings, he is known as Fabian Mihaj (born on July 2, 1980) although it is alleged he has utilized other identities such as Nikolin Rica and Arben Shtogal with alternative birthdates.

[2] The United States of America seeks his return to have him face legal proceedings arising from an arrest warrant issued February 13, 2017 in Ohio. Fabian Mihaj is alleged to be part of a group of individuals arrested in March, 2016 and charged with conspiracy to possess and distribute marijuana and MDMA (ecstasy). Fabian Mihaj is also charged with this offence.

[3] Fabian Mihaj apparently was smuggled from the United States into Canada in or about March, 2015. Fabian Mihaj is alleged to have a personal relationship with a woman who resides in Mississauga and who has a son.

[4] Fabian Mihaj was arrested by a Canada Border Services Agency officer on December 20, 2016. He identified himself as Nikolin Rica. He sought refugee status here but failed to attend an interview in Canada in October, 2011 as he was in custody in the United States awaiting trial on a charge of conspiracy to distribute marijuana. He is believed to be a citizen of Albania.

[5] The United States sought his arrest and extradition by making a request to the Minister of Justice. The Attorney General of Canada issued the requisite Authority to Proceed pursuant to Section 15 of the Extradition Act on May 19, 2017.

[6] The Authority to Proceed is required to list the corresponding Canadian offence and chose trafficking in Schedule I and Schedule II substances contrary to Section 5(1) of the Controlled Drugs and Substances Act.

[7] The individuals arrested by United States authorities in March, 2016 are known as D.A., J.A., L.K. and Rinald Turhani. All four have pleaded guilty to drug related offences. The anonymized individuals are not identified because of the need to comply with American procedural rules where they are expected to be co-operating witnesses for the prosecution.

Analysis

[8] Under Section 24(1) of the Extradition Act, Canadian law requires a hearing to be held on receipt of an Authority to Proceed from the Attorney General of Canada. The issue to be addressed, as stated in Section 29(1)(a) of the Extradition Act is whether “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.”

[9] That is, first, am I satisfied Fabian Mihaj is the person sought by the United States of America? Second, does the Record of the Case presented to me fulfill the requirements under Section 548 of the Criminal Code and the test of whether there is evidence, if believed, that it would be reasonable for a properly instructed jury to infer guilt?

[10] Fabian Mihaj opposed the granting of the committal order which refers the matter back to the Minister of Justice for the ultimate decision whether to surrender him to the extradition partner. This next step in the process, if it is required, permits Fabian Mihaj to make submissions to the Minister of Justice under Sections 40 through 48 of the Extradition Act.

[11] The basis for opposition to the issuance of the committal order is the Record of the Case fails to contain sufficient evidence of each element of the offence of trafficking under Section 5(1) of the Controlled Drugs and Substances Act and to conduct a mechanical review of the evidence tendered in the Record of the Case. I understood this to mean care must be taken to avoid reliance on hearsay evidence.

[12] Dealing first with whether Fabian Mihaj is the person sought, the individual detained by the Canada Border Services Agency identified himself as Nikolin Rica. The Assistant District Attorney who authored the Record of the Case notes the photograph of the individual detained and attached to the Record of the Case has been shown to co-operating witnesses (“CW”). CW-1, CW-3, CW-4 (D.A.) and CW-55 (J.A.) all of whom claimed it accurately depicts Fabian Mihaj.

[13] As a result, there is evidence, I believe, that would make it reasonable for a properly instructed trier or fact to conclude the individual detained is the Fabian Mihaj sought by the United States.

[14] Regarding the second part of the evaluation, I propose to review the 73 paragraphs of the Record of the Case to ensure each of the essential elements of trafficking in a controlled substance which is prohibited under Section 5(1) of the Controlled Drugs and Substances Act is met. The essential elements are:

i) that Fabian Mihaj trafficked in a substance;

ii) that the substances were marijuana and MDMA;

iii) that Fabian Mihaj knew that the substance was marijuana and MDMA; and

iv) that Fabian Mihaj intentionally trafficked in marijuana and MDMA.

[15] The first element requires a definition for trafficking substances. Trafficking is specifically and widely defined under Section 2(1) of the Controlled Drugs and Substances Act and includes selling, administering, giving, transferring, transporting, sending or delivering.

[16] CW-3 is expected to testify being told by Fabian Mihaj that he was sending “molly” (MDMA) to the United States (Record of the Case at paragraph 33). This is supplemented by CW-3 stating he travelled to an area near the Pennsylvania-Ohio border on or about September 4, 2015 at the request of others who were acquainted with Fabian Mihaj and carried two boxes from a truck to a vehicle in which he was an occupant. He later looked in the boxes and stated it contained approximately 10 kilograms of MDMA (at paragraph 35).

[17] CW-5 (J.A.), who should be noted was employed as a part-time police officer in Linndale, Ohio (at paragraph 7), also dated Fabian Mihaj (at paragraph 8). CW-5 is expected to testify taking a trip to Toronto in September 2015 to visit Fabian Mihaj. CW-5 met Fabian Mihaj at a specific gas station and observed Fabian Mihaj meeting with a male person whom Fabian Mihaj described as a truck driver (at paragraph 50) and a friend that owed him money. This truck driver was the person that CW-3 said CW-5 recognized at the truck stop near the Pennsylvania-Ohio border and from whom was obtained the two boxes containing approximately 10 kilograms of MDMA (at paragraph 35).

[18] Regarding the marijuana, CW-1 was told by Fabian Mihaj that he had begun to transport 5 to 10 pounds of high grade marijuana approximately every two weeks from Michigan to Cleveland (at paragraph 9).

[19] On November 30, 2015, CW-5 met an Albanian male in Detroit, Michigan at the request of Fabian Mihaj. He obtained 3.5 pounds of marijuana which CW-5 later sold to someone in Brooklyn, Ohio.

[20] As a result, I conclude the direct anticipated evidence would make it reasonable for a properly instructed trier of fact to conclude that Fabian Mihaj was involved in transporting a substance that falls within the definition of trafficking.

[21] The second essential element is to identify the substance. MDMA or ecstasy is a controlled substance under Schedule I of the Controlled Drug and Substances Act. The substance weighing approximately 10 kilograms was transferred from the truck driver (identified to be a friend of Fabian Mihaj by CW-5) to CW-3. CW-5 observed a portion was given to CW-4 for her use. CW-1 attends at CW-4’s apartment (at paragraph 14) on September 17, 2015 and consumed a substance from a baggie and experienced a sensation consistent with the effect of taking MDMA. Marijuana is a controlled substance under Schedule II of the Controlled Drugs and Substances Act. As stated, CW-5 met an Albanian male in Detroit at the request of Fabian Mihaj and obtained 3.5 pounds of marijuana which he later sold.

[22] CW-1 also is expected to testify being acquainted with Fabian Mihaj and was introduced to Rinald Turhani by Fabian Mihaj.

[23] Later in September, 2015, CW-3 and CW-4 along with Rinald Turhani were arrested in Los Angeles in possession of a substance. CW-3 and CW-4 believed it to be part of the load picked up on or about September 4, 2015, at the Pennsylvania-Ohio border and MDMA. The substance was tested by G. Johnson, a Los Angeles Police Department laboratory technician who is expected to testify the substance contained detectible amounts of MDMA. (at paragraphs 70-73).

[24] As a result, I conclude the direct anticipated evidence, would make it reasonable for a properly instructed trier of fact to conclude the substances being transported and for sale were substances identified in Schedule I and Schedule II of the Controlled Drugs and Substances Act.

[25] The third essential element is Fabian Mihaj knew that the substances he was trafficking were marijuana and MDMA. This can be accomplished by evidence that Fabian Mihaj actually knew the substances were MDMA and marijuana. Here we have the anticipated evidence from CW-1 being told by Fabian Mihaj that he had begun to transport 5 to 10 pounds of high grade marijuana approximately every two weeks from Michigan to Cleveland, Ohio (at paragraph 9). In addition, Fabian Mihaj told CW-1 he was a large scale narcotic trafficker with access to marijuana and MDMA in addition to other controlled drugs (at paragraph 13).

[26] As a result, I conclude the direct anticipated evidence, would make it reasonable for a properly instructed trier of fact to conclude Fabian Mihaj knew he was trafficking in MDMA and marijuana.

[27] The fourth element is the intention for Fabian Mihaj’s state of mind to traffic in marijuana or MDMA. This requires consideration of what Fabian Mihaj did, how he did what he did and what he said about trafficking in the substances. In this regard, there is the direct evidence from:

a) CW-1 being told by Fabian Mihaj that in order to satisfy his desired style of life, he had begun to transport 5 to 10 pounds of high grade marijuana approximately every two weeks from Michigan to Cleveland, Ohio (at paragraph 9);

b) CW-1 being told by Fabian Mihaj that he was a large scale narcotics trafficker (at paragraph 13);

c) CW-4 discussing with Fabian Mihaj his drug connections to the Toronto area and his facilitating transportation logistics of “molly” or MDMA; and

d) CW-5 meeting with an Albanian male in Detroit to obtain 3.5 pounds of marijuana and transporting it to Brooklyn, Ohio at Fabian Mihaj’s request or as arranged by him (at paragraph 53).

[28] As a result, I conclude this direct anticipated evidence, would make it reasonable for a properly instructed trier of fact to conclude that Fabian Mihaj intended to and was trafficking in marijuana, MDMA or other narcotics.

[29] The Record of the Case contains expected evidence from nine different witnesses. It is not surprising, in my view, the expected evidence contains information that is interwoven between the cooperating witnesses and the four law enforcement officers identified. Further, some of the evidence is indirect and based on what a cooperating witness was told by a third person about Fabian Mihaj’s involvement or what a cooperating witness heard other individuals state to each other relating to Fabian Mihaj’s involvement. This may well be hearsay and its admissibility at a trial yet to be determined.

[30] Counsel for Fabian Mihaj stressed the attempt in the Record of the Case to link Fabian Mihaj and Rinald Turhani as partners (in crime). This is problematic given that Rinald Turhani is not a cooperating witness.

[31] I agree Section 29(1)(a) of the Extradition Act includes the phrase “evidence admissible”. To that end, I examined the Record of the Case for direct statements and observations of the witnesses. I have also matched that evidence with the essential elements of the offence as set out in the Authority to Proceed, being Section 5(1) of the Controlled Drugs and Substances Act.

[32] Counsel for Fabian Mihaj raised discrepancies between the content of the Record of the Case and the Application Record for a Provisional Arrest Warrant to support the position the information in the record may not be reliable. Counsel for the Attorney General relied on Section 33(3)(a) of the Extradition Act that it is the Record of the Case that is admissible before me and not the Application Record for a Provisional Arrest Warrant. I accept the position of counsel for the Attorney General and it is not necessary to review any such discrepancies.

[33] However, the scope of my analysis is wider than a strict interpretation of the test under Section 29(1)(a) of the Extradition Act that had the conduct occurred in Canada, it would justify a committal for trial. Alternatively, this is described as a prima facie case of a Canadian crime (see paragraph 8 of M.M. v United States of America, 2015 SCC 62). Consideration must be given to Charter remedies and “a limited weighing of the evidence to determine whether there is a plausible case” (M.M. v United States of America, supra, at paragraph 40). Where the evidence is so unreliable that it would be unsafe to convict, then the case is insufficient for committal. In addressing this requirement, I am satisfied the anticipated direct evidence referenced above is sufficient to conclude committal for trial is justified. When combined with the remainder of the anticipated observations and what has been heard by those involved, the Record of the Case is more than sufficient to conclude committal for trial is justified.

Conclusion

[34] For the reasons just stated I grant the request of the Attorney General and order the committal of Fabian Mihaj into custody, pursuant to Section 29 of the Extradition Act to await surrender for the offences set out in the Authority to Proceed.

Mr. Justice G. Dow

Released: November 30, 2017

CITATION: AG of Canada v Mihaj, 2017 ONSC 6784

COURT FILE NO.: CR-17/9-064-00M0

DATE: 20171130

SUPERIOR COURT OF JUSTICE (TORONTO REGION)

IN THE MATTER OF an Applicant to pursuant to section 29 of the Extradition Act for an order committing Fabian Mihaj a.k.a. Nikolin Rica a.k.a. Arben Shtogal into custody to await the Minister’s decision on whether he should be surrendered to the United States of America

BETWEEN:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA

Applicant/Requesting State

– and –

FABIAN MIHAJ

Respondent/Person sought for Extradition

REASONS FOR DECISION

Mr. Justice G. Dow

Released: November 30, 2017