Court File and Parties

COURT FILE NO.: 42/13 DATE: 20180731

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ATTORNEY GENERAL OF CANADA (ON BEHALF OF ROMANIA) - and - GIVAN IUSEIN

Counsel: Heather J. Graham, for the respondent, the Attorney General of Canada David Parry, for the applicant, Givan Iusein

HEARD: March 8-9, April 6, May 10, 2018

K.L. Campbell J.:

I Overview

[1] Romania seeks the extradition of the applicant, Givan Iusein, in relation to his conviction and sentence on a charge of murder. The offence was committed on July 10, 1992. At that time, the applicant was a permanent resident of Canada, having first arrived in Canada, from Romania, in 1988. However, in July of 1992, the applicant was back in his homeland, visiting Constanta, Romania. On the night of July 10, 1992, the applicant became involved, together with three of his friends, in a dispute that culminated in the stabbing death of Mihail Tudorascu. Subsequently, the applicant and his three co-accused were tried, in the Constanta Court of Justice, on a charge of murder for their respective roles in the killing and, in 1993, they were convicted of that offence. The applicant was sentenced to 18 years imprisonment. His subsequent appeal against this conviction was dismissed.

[2] On December 10, 1994, the applicant’s sentence was interrupted when he was released from the penitentiary for medical reasons. His medical leave of absence was periodically extended until it totaled more than 21 months. He was finally scheduled to return to the penitentiary on September 11, 1996. However, before he was returned to complete his sentence, the applicant fled the jurisdiction, eventually making his way back to Canada in late 1996. The applicant still has over 15 years and seven months left to serve on his sentence in Romania. The Romanian authorities seek the return of the applicant, who is now a Canadian citizen, so that he can serve the remainder of this sentence.

[3] The applicant takes no issue with the fact that he was, in fact, convicted and sentenced for this murder in Romania and that the evidence provided in support of his conviction and sentence supports his extradition. The applicant argues, however, that the extradition proceedings against him should be stayed as they amount to an abuse of process. Essentially, the applicant contends that, for literally months after his arrest, first for a few days in the local police station and, thereafter for months while in the provincial police detention facility, he was subjected to frequent beatings, tortures, sexual assaults and other punishments. The applicant argues that it was the statements that he ultimately provided to the police about the killing, as a result of this extended period of horrific abuse, obtained at a time when he was denied access to counsel, which led to his wrongful conviction and sentence. The applicant also contends that the trial proceedings against him in the Romanian court were fundamentally unfair, in that he was not permitted to testify or otherwise present his defence to the court. The applicant also argues that the delay in the extradition process has unfairly impaired his ability to collect and provide evidence in support of his application to stay the extradition process. Finally, the applicant argues that translation “errors” in the record of this case reveal a deliberate attempt by the Romanian authorities to mislead the Canadian authorities. These too, the applicant contends, should result in a stay of the extradition proceedings against him.

[4] For the reasons that follow, the application to stay the extradition proceedings is dismissed. In my view, the evidence on this application does not support the applicant’s ultimate position that the extradition proceedings should be stayed. Further, as there is no suggestion that there is any other basis upon which to contest his extradition, the extradition application brought on behalf of the Romanian authorities is granted, and the applicant is ordered to be committed for extradition so that he may serve the remainder of his sentence for murder.

II The Evidence

1. The Applicant’s Testimony

a. Introduction

[5] The applicant brought an application for disclosure in furtherance of this application to stay the extradition proceedings. In support of that disclosure application, the applicant prepared an affidavit, sworn on February 4, 2016. That disclosure application was heard by R.F. Goldstein J., and was dismissed. See Attorney General of Canada v. Iusein, 2016 ONSC 6758, 134 W.C.B. (2d) 271. The applicant continued to rely on that same affidavit on his application to stay the extradition proceedings. In his viva voce evidence, the applicant confirmed the accuracy of the contents of that affidavit. He was also cross-examined by the Crown. His evidence is essentially as follows.

[6] The applicant is now 48 years old. He was born in Romania. He has two brothers. His family left Romania in 1983. He lived in refugee camps in Turkey and Italy before arriving in Canada on May 31, 1988. He met his wife in 1990, and they were married soon thereafter. They had a child, a son, in 1992. In the summer of 1992, the applicant and his brother decided to travel back to Romania to visit their birthplace. They planned to stay in Romania for approximately one month. By that point, the applicant was 22 years old, and a permanent resident of Canada.

b. The Events of July 10, 1992 – The Murder of Mihai Tudorascu

[7] On the evening of July 10, 1992, the applicant went out for drinks with three men, namely, Sebastian Osman, Valentin Caravan and Ionut Ciobotaru. According to the applicant, Mr. Osman was the applicant’s neighbor when his family lived in Romania, Mr. Caravan was a friend of Mr. Osman, and Mr. Ciobotaru was simply a taxi driver he had hired for the night to drive them out for drinks.

[8] According to the applicant, they stopped at a bar called “Melody.” When he went to buy four cans of beer for their group he noticed that Mr. Osman was having an argument with a large, muscular man, he later learned was Mihai Tudorascu, a professional wrestler. Mr. Caravan got in between the two men to try to stop the argument, but Mr. Tudorascu pushed him away, and into a nearby pool or fountain. Mr. Tudorascu then pushed Mr. Osman to the ground and started hitting him. Mr. Caravan then intervened again and was able to free Mr. Osman. The applicant stood next to Mr. Ciobotaru, watching these events as they unfolded. When the fighting was over, all four men got back into their vehicle and left the area.

[9] As they drove away, the applicant noticed that Mr. Caravan was angry and was looking for one of his friends, who he was unable to locate. Mr. Caravan then told the taxi driver to drive him home so that he could change his clothes. On the way, they stopped at a few places to have a drink. When they arrived at Mr. Caravan’s home, the applicant suggested to Mr. Ciobotaru that they leave Mr. Caravan and drive away. However, Mr. Caravan heard this and threatened Mr. Ciobotaru not to leave. In the result, they waited for Mr. Caravan in the car. When Mr. Caravan returned, he had a bat in his hands, and he told Mr. Ciobotaru to return to the Melody bar. They did.

[10] According to the applicant, when they arrived back at the Melody bar, he wanted to end this dispute, so he offered to go back into the bar “to pretend” to see if Mr. Tudorascu was still there. Mr. Caravan offered him a “large, rusty, kitchen knife,” but the applicant declined to take it. After exiting the vehicle and pretending to walk around looking for Mr. Tudorascu, the applicant returned to the vehicle and told the other men that Mr. Tudorascu was not there. Mr. Caravan appeared to accept this, and they drove to another location for a drink. Mr. Caravan directed Mr. Ciobartaru where he wanted to go.

[11] The applicant testified that when they arrived at another club, they coincidentally found Mr. Tudorascu coming out of the establishment. At that point, according to the applicant, Mr. Osman got out with the bat in his hands. The applicant tried to stop him, but Mr. Osman did not pay any attention to him. Mr. Caravan also got out of the vehicle. While the applicant also exited the vehicle, he remained with Mr. Ciobartaru by the taxi the whole time.

[12] The applicant explained that he watched as Mr. Caravan ran after Mr. Tudorascu. Mr. Osman was swinging the bat at Mr. Tudorascu, and at one point threw the bat. At this point, the applicant and Mr. Ciobartaru were still back at the car, approximately 100 feet away. Everything happened very quickly. The applicant saw Mr. Caravan and Mr. Tudorascu come “face to face.” Then Mr. Tudorascu ran away. Mr. Caravan chased after him and caught him and they both fell to the ground. Mr. Caravan tried to kick him, and Mr. Tudorascu ran away. Mr. Caravan did not chase after him. That was the last time the applicant saw Mr. Tudorascu. When Mr. Caravan returned to the car, the applicant saw him throw a knife on the floor of the back seat of the vehicle. The applicant explained that this was a different knife than the one that Mr. Caravan had offered him earlier that night. This knife looked like a hunting knife. The applicant did not see any blood on the knife, but it was dark outside.

[13] Once the four men were back in the car, they drove away. Subsequently, they were stopped by the police. Mr. Ciobartaru was the only person who was able to produce identification documents. The police officers told them to follow their police car to the police station. However, the police car had some mechanical problems. Mr. Ciobartaru, nevertheless, headed toward the police station. When they were not followed by the police, Mr. Osman told Mr. Ciobartaru to stop the car, indicating that he was not going to the police station. Mr. Caravan then gave the knives and the bat to Mr. Osman and told him to get rid of them. Mr. Osman took these items, but the applicant did not see what he did with them. While Mr. Osman suggested to the applicant that he come with him, Mr. Caravan told the applicant that he should simply go to the police station as he was not involved in anything. The applicant, Mr. Caravan and Mr. Ciobartaru then went to the police station. The applicant explained that he was not worried about going to the police station as he had done nothing wrong.

c. The Events at the Local Police Station

[14] The applicant testified that he was held in the local police station for about three days. Shortly after his arrival, the police started questioning Mr. Caravan and Mr. Ciobotaru. The applicant testified that he saw “police officers beating up on Mr. Caravan.” They were hitting him. Mr. Caravan had blood on his face. Then they took Mr. Caravan upstairs for further questioning. At some point, according to the applicant, six police officers came and got him and escorted him to an interrogation room upstairs. His hands were handcuffed behind his back. When the six officers started to question him, the applicant told them that he wanted a lawyer and would not speak to them without a lawyer. At that point, the applicant was struck on the back of the head with something very hard and was knocked unconscious. He regained his consciousness when water was thrown on his face. The police then began beating him. According to the applicant, over the next two or three days, the police continued to interrogate him and administer beatings. Their goal, the police advised him, was to have him write a confession to the crime.

[15] As to the nature of these police beatings, the applicant explained that he was always “handcuffed or tied up” and they would punch him and kick him in the back, the stomach and the kidney area. They would smash his head and face into the wall, while ridiculing and laughing at him. They also used various forms of sticks and batons to beat him on the bottom of his feet and on the palms of his hands. The police forced him to remain on his knees for hours.

[16] While the applicant told the police what actually happened, and committed it to writing, they were not satisfied with his version of the events, and they ripped up the paper and told him what to write. When he refused to write down what the police wanted him to write down, he would be beaten by the police. According to the applicant, over the two or three days, he wrote three statements, each of which the police ripped up. In the fourth written statement, the applicant wrote down what the police wanted him to write down, in order to stop the beatings. The applicant explained that, ultimately, he wrote down, as the police insisted, that he took the rusty knife from Mr. Caravan, and went looking for Mr. Tudorascu in the Melody bar, in order to help the other two men fight with him.

d. The Events at the Provincial Police Station

[17] After his time in the local police station, the applicant was transferred to the Provincial Police Station in Constanta, where he remained for the next five or six months. According to the applicant, the beatings by the police officers continued at this facility, with the apparent goal being to get him to write a further statement admitting that he was the one that stabbed Mr. Tudorascu. The applicant explained that he wanted to write this statement in order to stop the beatings, but he just could not do it. However, he was forced to admit that he had the knife and that he punched Mr. Tudorascu. He could never bring himself to admit that he stabbed him.

[18] The applicant testified that he was “tortured” during his time at the Provincial Police Station. He was subjected to “violent beatings,” during which the police officers would punch him and kick him in the back, abdomen and kidneys. Sticks and batons were used to hit him on the bottom of his feet and the palms of his hands. These beatings were very painful. The applicant explained that he was also subjected to various “punishments,” which included: (1) being handcuffed and chained to a chair in a kneeling position for hours and hours; (2) being chained blindfolded to a chair in a horizontal position, with water being poured over his face such that he felt that he was drowning; (3) being chained by his wrists, naked, to the ceiling pipes in the shower room, such that only his toes could touch the floor, while running cold water over his body for hours. On one occasion, according to the applicant, electrodes were attached to his testicles while he was hanging naked from the ceiling pipes, and electric shocks were administered. This was very painful.

[19] The applicant testified that, initially, these beatings and punishments happened approximately twice a week. As time went on, however, they only happened approximately once weekly.

[20] The applicant explained that there was one man who was present in the Provincial Police Station for most of his beatings and punishments – the “prosecutor” who was conducting the investigation and interrogation, namely, Traian Poenaru. According to the applicant, he “definitely was in charge. The applicant first encountered him in the local police station, where he was “just observing” the conduct of the police. However, when the applicant was transferred to the Provincial Police Station, Mr. Poenaru was “present almost every time” the applicant was beaten or punished, and it was Mr. Poenaru who was conducting the interrogation. While the police beat him, Mr. Poenaru would talk to him and tell him what he wanted the applicant to write down in a further statement. It was Mr. Poenaru who kept telling the applicant to write that he had been the one that had stabbed Mr. Tudorascu. While he was enduring the beatings, the applicant would agree to write the statement as instructed, but when the paper was put in front of him, he could not bring himself to write down that he had stabbed the deceased.

[21] According to the applicant, the prosecutor also sexually assaulted him on a monthly basis. The applicant explained that, on one occasion, as he was chained by the wrists, naked, to the ceiling pipes in the shower room and hanging there alone, Mr. Poenaru approached him, told him that he was cute, and that he was going to be “raped” and he was “going to like it.” The prosecutor then inserted a stick into the applicant’s anus, and then forced the stick into the applicant’s mouth. Mr. Poenaru then further sexually assaulted the applicant. The applicant estimated that the prosecutor sexually assaulted him five or six times during the period of time he was confined at the Provincial Police Station, always when he was chained up, naked, in the shower room. The applicant testified that he was unable to provide any further details of the manner in which he was sexually assaulted by the prosecutor, as they were too “painful, humiliating and traumatic” for him. The applicant feels that openly discussing the details of these sexual assaults would cause him to “lose whatever manhood [he] has left.”

[22] The applicant testified that, at one point, he got so sick that he had to be taken to the hospital because he was vomiting blood and had blood in his urine. While the doctors wanted to keep him in the hospital, the police would not allow it. However, this resulted in him not being the recipient of any more beatings or punishments for a period of about four weeks. However, after he had recovered somewhat, the police mistreatment of him started again.

[23] The applicant testified that, during the times when he was not being beaten or punished, he was kept in a small cell with as many as six, eight or ten other men. All of the prisoners “had their turn at beatings and punishments,” as after each prisoner was removed from the cells, their “screaming and crying” could be heard as they were “beaten and punished” on one of the other floors of the facility.

[24] According to the applicant, while Romanian law only permitted an accused to be kept in police custody for a maximum of 30 days, he remained in police custody for approximately five months. Further, while he had a lawyer defending him during this time, his lawyer was only permitted to visit him once, briefly. More specifically, on one occasion, the applicant was permitted to meet with his lawyer, in the presence of the prosecutor, Mr. Poenaru, who was present for their entire meeting and listened to what was said between them. When his lawyer asked if he was being beaten, the applicant could not answer honestly, as he feared further beatings and punishments, so he just said, “please help me.”

e. The Penitentiary – The Trial Proceedings

[25] The applicant testified that after spending approximately five months in the Provincial Police Station, he was sent to the penitentiary to await his trial. At this point, the beatings and punishments stopped. However, by that point, he had suffered a lot of physical damage, in addition to psychological damage. He continued to vomit blood.

[26] According to the applicant, his trial was a “farce.” The court relied upon the written statements or confessions that had been beaten out of him, as well as the statements that his co-accused made to the police, after being similarly beaten. Neither the applicant nor any of his co-accused were permitted to testify. The applicant was only asked, at the end of the trial, whether he had “any last word.” Part way through his trial, his defence lawyer became frustrated with the proceedings, told the applicant that he could not defend him “in front of these communists,” and said that he would see him in the “Supreme Court.” The applicant was, thereafter, left to defend himself. In the result, the applicant was convicted of murder and sentenced to 18 years imprisonment.

f. The Unsuccessful Appeal

[27] The applicant testified that, subsequently, he appealed his case to the Appeal Court in Costanta, but his appeal was not successful.

g. His Hospital Attendance and Eventual Escape From Romania

[28] The applicant testified that while he was confined in the penitentiary he became so sick that he was sent to a hospital for medical treatment. More specifically, on December 6, 1994, his sentence was interrupted for a three-month period so that he could obtain medical treatment. His hospitalization was thereafter extended a number of times. Ultimately, on his doctor’s orders, the applicant spent a total of some 21 months outside of the penitentiary for medical treatment. By that point, the doctor had indicated that the applicant was medically fit to return to the penitentiary to continue serving his sentence.

[29] The applicant admitted that, at no point during his time in the hospital, did he ever complain to any doctors or nurses about the injuries he had suffered at the hands of the police. The applicant said that it was simply “not relevant” to their consideration of his medical condition. The applicant also claimed that he had made efforts to obtain his medical records regarding his hospitalization in Romania, but he was refused these records.

[30] The applicant decided to flee from Romania instead of returning to the penitentiary. The applicant explained that he knew he was “innocent” and felt that he did not receive a fair trial. Accordingly, after fleeing from Romania, and travelling through a number of other countries, the applicant made his return to Canada in late 1996.

[31] Later, the applicant obtained his Canadian Citizenship, claiming that he did not hide his murder conviction and flight from Romania from the Canadian immigration authorities. In his viva voce testimony on this application, however, the applicant ultimately admitted that he did, indeed, hide this information from the Canadian immigration officials, in that he advised the Canadian immigration officials: (1) that his first absence from Canada was in June of 1996; and (2) he was living at a location in the east-end of Toronto between 1992 to 1997. The applicant made no mention of his trip to Romania in the summer of 1992, and his conviction and sentence there for murder.

2. The Official Court Records From Romania

a. Introduction

[32] The official court records from Romania paint a very different picture. These records, translated into English, show that: (1) on July 13, 1992, when asked to “state everything he knows concerning the crime,” the applicant signed a two-page, typed statement, in the presence of both the prosecutor and his defence lawyer; and (2) on January 19, 1993, during the “public session” of the trial proceedings, when requested to “state everything he knows about the charges” brought against him, the applicant provided and signed a two-page, typed statement, in the presence of the President of the Court and the Court Clerk.

b. The July 13, 1992 Statement

[33] In his July 13, 1992 statement, the applicant detailed the events on the night of the alleged offence. At the conclusion of this statement, the applicant indicated that he “admit[s] having committed the offence,” although the detailed contents of the statement are largely otherwise exculpatory. This was the only pre-trial statement by the applicant that was introduced into evidence in the trial proceedings in this case. More particularly, in this statement the applicant indicated as follows:

• That during the initial incident at the Melody bar between Mr. Osman, Mr. Tudorascu and Mr. Caravan, the applicant was “not involved in this scandal in any way, nobody hit [him] and [he] did not hit anybody;”
• That it was Mr. Caravan who suggested that they return to his home so that they could pick up “some weapons,” and that was where they picked up “two knives and one stick;”
• That when they returned to the Melody bar, the applicant got out of the car, taking with him the black cutting knife, which he put under his shirt, but that he did not see M. Tudorascu;
• That when they got to the second bar (i.e. the “Orient” bar), Mr. Caravan had the bayonet-shaped knife, Mr. Osman had the “stick” and the applicant still had the black cutting knife;
• That he saw Mr. Osman start to fight with Mr. Tudorascu, during which Mr. Osman hit Mr. Tudorascu several times on his head with the stick;
• That when Mr. Tudorascu was trying to escape, he ran past the applicant and punched him in the face and on his head – the applicant was unable to defend himself, and Mr. Tudorascu continue to run away;
• That Mr. Caravan and Mr. Osman chased after Mr. Tudorascu, tripped him to the ground with the stick, and then Mr. Caravan, who still had the knife in his hand, went to the ground with Mr. Tudorascu;
• The applicant did not, at any time, strike Mr. Tudorascu with his knife, and he had no idea why the police found blood on his knife;
• That later, Mr. Osman told them that he had hit Mr. Tudorascu with the stick on his head, and Mr. Caravan told them that he had struck Mr. Tudorascu with his knife;
• That it was Mr. Osman who left the taxi with the weapons in order to hide them before they went to the police station as they were requested.

[34] In his viva voce testimony on this application, the applicant acknowledged his signature at the conclusion of this typed statement, but he testified that his lawyer did not sign that document on that date as he did not have a lawyer at that time. The applicant testified that he did not know who signed this statement in the capacity of his lawyer.

c. The Applicant’s Courtroom Statement

[35] In his January 19, 1993 courtroom statement, admitted during the trial proceedings, the applicant again detailed the events on the night of the alleged offence. More particularly, the applicant indicated as follows:

• That the applicant witnessed the initial incident at the Melody bar between Mr. Osman and Mr. Tudorascu, and had given Mr. Caravan the “sign” to intervene and separate them, and he had seen Mr. Tudorascu hitting Mr. Caravan, and trying to “chase down” Mr. Osman “in order to beat him;”
• That when they went to Mr. Caravan’s house, so that he could change his clothes, when Mr. Caravan came back to the taxi, where the other men were waiting, Mr. Caravan had “two knives on him and one hack iron stick;”
• That when he returned to the taxi, Mr. Caravan gave the applicant one of the knives – the “bigger and broader” knife with the “rusty cutting” edge – but the applicant put the knife on the floor of the vehicle by his feet;
• That Mr. Caravan told the applicant to keep the knife on his person “just in case something happened,” and the applicant thought that they might again meet up with Mr. Tudorascu, who was “a big guy” and a “former wrestler.”
• That when they got to the Orient bar, Mr. Caravan and the applicant both got out of the car. Each of them were in possession of a knife. Shortly thereafter, Mr. Osman also got out of the car, in possession of the stick in his hands;
• That when the three men again encountered Mr. Tudorascu and one of his friends, Mr. Osman and Mr. Tudorascu started insulting each other, and they agreed to fight. Mr. Tudorascu asked Mr. Osman to “throw away the stick.” Mr. Caravan then hit Mr. Tudorascu’s friend and pulled out his knife. Mr. Osman then approached Mr. Tudorascu with his stick, while Mr. Tudorascu defended himself using only his hands.
• That Mr. Tudorascu then ran toward the applicant, punched him and tried to “hammer-lock” him. At that point, the applicant took out his knife. He then “punched” Mr. Tudorascu on his head. The applicant “did not think that the knife could have bruised him” – although he had the knife in his hand. At the same time, Mr. Caravan also hit Mr. Tudorascu.
• That Mr. Tudorascu ran away, but he was caught by Mr. Caravan, who fell down on top of him. Mr. Tudorascu was holding him by his legs, probably trying to prevent him from hitting him. Mr. Osman also hit Mr. Tudorascu with his stick. Then Mr. Tudorascu got up and, again, tried to run away.
• That when Mr. Tudorascu ran way, the men returned to their taxi. Mr. Osman made fun of the applicant because “[his] lips were hurt.” The applicant said that he had “punched” Mr. Tudorascu on his head, but that he “did not think that [he] also hit him with the knife [he] had in [his] hand.” Mr. Caravan indicated that he had hit Mr. Tudorascu with his knife, and Mr. Osman said that he had also hit Mr. Tudorascu.
• That they were “all drunk” as “altogether [they] had drunk [six] pints of beer.”
• As they drove around in the taxi, Mr. Osman threw the knives out of the car.
• As part of his courtroom statement, the applicant stated: “I uphold my statements.” Further, the applicant indicated that, at the “police station,” he was “interrogated correctly.”
• The applicant also indicated that he “committed the crime following the consumption of alcohol and because he was punched by [Mr. Tudorascu]. The applicant noted that, in the car afterwards, he “reproached” Mr. Osman for letting Mr. Tudorascu “punch [him].”
• The applicant also indicated that he and Mr. Caravan did not, at any point in time, exchange knives – the applicant always had the “black cutting knife” on him.
• The applicant indicated that, on the night of the killing, he was wearing a “white track suit,” and admitted that, subsequently, blood was identified on his clothes.
• Subsequently, while the others “boasted” about what they did, the applicant indicated that he “could not do anything” but that, in order to escape the victim [he] punched him on his head.”

[36] In his viva voce testimony on this application, the applicant denied giving any statement or providing any testimony during his trial proceedings in Romania. The applicant maintained that the “only statements” he made were the ones that he was forced to make by the police. He acknowledged, however, his signature at the conclusion of this written statement. He also agreed that he was present in the courtroom, with his lawyer, when this statement was put in evidence the first day of his trial. The applicant agreed that his lawyer tried to defend him and argued that he was not the person who stabbed the deceased, but that the court did not allow him to speak “too much.” The applicant also agreed that his lawyer did not challenge the admissibility of his statements on the basis that they were “beaten out of [him].”

[37] The Romanian court records show that when the applicant was given the “last word’ at his trial, he indicated that he was “not the author of the deathblow.” The applicant agreed that he did not say anything to the court about having been mistreated by the authorities. The applicant maintained that, while he had tried to say more, he was not allowed to speak further by the court.

d. The Trial Proceedings in Romania

[38] The official court records from Romania show that the accused was represented by counsel (Mihei Valeriu) throughout the trial proceedings in this case. These records show that defence counsel for the applicant argued that the applicant did not inflict the “deathblow” and that, in all of the circumstances, it was more likely Mr. Caravan who caused the death of the deceased. The applicant had only punched the victim in the head, and might have “scratched him” with the knife in so doing. Defence counsel for Mr. Caravan argued, conversely, that he did not ever have possession of a knife, and that the person who hit the victim with the “death weapon” was the applicant, just as one of the other civilian witnesses had indicated.

[39] The official court records also show that, at the conclusion of the trial proceedings, the court drew the following conclusions. The court determined that, on the night of July 10, 1992, the four accused, who knew each other, were together, and were being driven around by Mr. Ciobotaru, who had access to a taxi. After they had been to several “catering units” where they consumed alcoholic beverages, they met the victim, Mr. Tudorascu, and Mr. Osman and Mr. Caravan got into a fight with him. Seeing that they could not beat him, and being “deranged by [his] attitude,” they left the scene to try to acquire the assistance of others, or to arm themselves.

[40] According to these court records, the court concluded that the accused then went to the home of Mr. Caravan, where he obtained two knives and a pickaxe. Each of the accused saw these weapons and they concluded that they were “able to produce death,” and they then drove back to the area, looking for Mr. Tudorascu. When the applicant could not find him at the Melody bar, they drove to the Orient restaurant. There, after Mr. Osman armed himself with the pickaxe, and Mr. Caravan and the applicant armed themselves with knives, they found Mr. Tudorascu. Mr. Osman invited Mr. Tudorascu to fight with him again, and Mr. Tudorascu was willing – but without the weapons the accused men had brought with them. Ultimately, after Mr. Caravan had struck Mr. Tudorascu in the head with his fist, Mr. Osman hit Mr. Tudorascu with his pickaxe in the head and on his body. He tried to escape, but he was chased down by Mr. Caravan and the applicant, who struck him with their knives in different areas of his body. While this attack was unfolding, Mr. Ciobotaru returned to the taxi, approached the scene of the crime, and waited for the other three accused, with the doors of the taxi open. Once the other accused returned to the taxi, and drove away, they began “singing their own praises” and discussing how they each hit the deceased and contributed to his beating. The victim, Mr. Tudorascu, died shortly after, on route to the hospital, from the serious wounds he suffered during this attack.

[41] The court concluded, according to the official court records, that there was no doubt that the accused acted “deliberately” and with “premeditation,” they followed the victim for a long time, “armed themselves with objects capable” of producing the “lethal lesions” suffered by the deceased, and acted in an “organized group” for the realization of their “resolution” or their “established plan” – their aim of “killing the victim.” Each of the accused “directly contributed” to his death and were, therefore, guilty of murder.

3. The Medical Records

[42] In a medical report dated September 9, 1992, regarding a medical assessment of the applicant and his admission to the Constanta Hospital for treatment, the three doctors that conducted the assessment noted that, when the applicant was examined on September 7, 1992, his skin was slightly jaundiced, his liver was enlarged, and he had an injury to one of his finger nails. Further, the doctors noted that the applicant complained of fatigue and loss of appetite. The applicant was ordered hospitalized for further testing and for treatment of acute hepatitis. This medical report did not note any other observed medical problems with the applicant, nor did it note any other complaints made by the applicant.

[43] The official court records from Romania show that, after the applicant was sentenced to 18 years imprisonment for “aggravated murder with premeditation,” his sentence was interrupted on December 10, 1994 for medical reasons. More particularly, medical professionals determined that the applicant was suffering from “progressive chronic hepatitis” and was in “need of complex paraclinical investigations and treatment in a gastroenterology clinic” for a period of months. The interruption of his sentence was subsequently extended, on a number of occasions, on the basis that the applicant was suffering from gastric ulcers, duodenal ulcers, chronic gastritis, digestive disorders, and chronic hepatitis that required further medical and surgical treatment. The interruption of the applicant’s sentence was scheduled to end on September 11, 1996, but the applicant failed to appear. The applicant has been unlawfully at large since that time.

[44] On March 30, 2016, in response to the allegations made by the applicant in his affidavit sworn on February 4, 2016, the Director for International Law and Judicial Cooperation in the Ministry of Justice in Bucharest, Romania, stated as follows:

• In response to claims that the applicant was not allowed to make statements during his trial, the Director indicated that verifications performed by the court show that the applicant was “heard both during the criminal prosecution and during the judicial investigation, both in the first instance and during the judicial review, as revealed by his statements.
• In response to claims that the applicant’s testimony was obtained after torture, and that he was beaten and punished by police authorities, as well as sexually assaulted, the Director indicated that there were “no evidences pointing to this,” and that the case was heard by the trial judge, and in his statement to the court on January 19, 1993, the applicant stated that he had been fairly heard by the police authorities.
• The Director indicated that during the criminal prosecution, the applicant was legally examined to determine if it was medically able to continue to be detained, and this led to a suspicion of “acute hepatitis,” and hospitalization was recommended for appropriate medical treatment. Further, the Director indicated that during the judicial investigation, the accused requested a new investigation into this issue, but on February 22, 1993 refused, in writing, and with the assistance of his chosen lawyer, the “polyclinic and expertise granted by the court.” In addition, the Director indicated that, during his subsequent appeal, the applicant stated that he had been hospitalized between October 12 and 25, 1993, with the diagnosis of “respiratory virosis and chronic evolutionary hepatitis” and received medical treatment. The Director concluded that it was obvious that the authorities showed interest in the applicant’s health condition and took all appropriate measures.

4. The Evidence of Sebastian Osman

[45] On February 5, 2016, Mr. Sebastian Osman, signed an affidavit before a public notary in Romania, attesting to his own experience in police custody in July and August of 1992. He also subsequently provided viva voce testimony, from his home in Constanta, Romania, by way of Skype video-link.

[46] Mr. Osman is a life-long friend of the applicant. They grew up together and have been close friends since childhood. Mr. Osman agreed that, in 1993, he was convicted of murder and sentenced to 18 years imprisonment. His appeal against his conviction was dismissed, and he ultimately served 13 years in prison before he was released on parole.

[47] Mr. Osman testified that when he was arrested for this crime, he was “forcibly taken to be interrogated” and he was threatened “to admit something [he] had not done.” More specifically, for three days, because he “refused to admit what [he] had not done,” he was “beaten and tortured,” not given any food or water, and not allowed to contact his family. He was also denied the right to a lawyer during the investigation.

[48] Mr. Osman testified that, after the first three days, he and the applicant “and the other ones” were taken to a different police station. There, for an entire month, they could not see each other, but Mr. Osman could hear the applicant’s voice as he was being “subjected to various methods of torture.” Mr. Osman explained that the applicant was being interrogated in a room on the floor just above where Mr. Osman was being held. Mr. Osman thought this was done by the police deliberately so that he could hear what was happening to the applicant and admit his guilt for the crime. Mr. Osman testified that he did not “give in” because, like the applicant, he had not committed the offence alleged against him. Mr. Osman testified that he could hear the police telling the applicant to “admit” the offence and asking him why he was not “admitting” the offence, and he heard the applicant telling the police that he was “not guilty.”

[49] Mr. Osman testified that when he met up with the applicant, he appeared “very scared and beaten up.” Further, he seemed “very ill,” but he was not immediately taken for medical treatment. He was only released for medical treatment “after a period of time.”

[50] Mr. Osman agreed that he did not “witness” the applicant being beaten, but afterwards the applicant told him what had happened, and both of them were wondering what to do as they were afraid as they were being forced to admit to something that they had not done.

[51] Mr. Osman explained that he and the applicant became “accustomed to the beating, swearing and lots of other torture methods” used against them. Mr. Osman personally experienced “terrible back pain” from the two or three beatings that he experienced. When asked about the other “torture methods,” Mr. Osman explained that he was not allowed to have any contact with his family, could not contact a lawyer, was taken for haircuts and shaving, and was given “terrible food” to eat. According to Mr. Osman, however, he and the applicant maintained their innocence throughout.

[52] Mr. Osman agreed that, at the trial proceedings, he was represented by a lawyer, who argued that he was not guilty of this offence because he did not cause the victim’s death, and was only armed with a stick, not a knife, and had only used the stick to defend himself. His lawyer never raised any issue as to any police “abuse” to which Mr. Osman was subjected while he was interrogated. However, Mr. Osman maintained that, at one point during the trial, he personally testified that the police had beaten him, but the court would not let him “talk too much,” and it was not “taken into consideration” by the court. Mr. Osman agreed, however, that on his appeal, he made no mention of the beatings by the police.

5. The Evidence of Ionut Ciobotaru

[53] Mr. Ciobotaru testified, through an interpreter, by way of Skype video-link, from Germany, even though he still lives in his birthplace, Constanta, Romania.

[54] Mr. Ciobotaru testified that in July of 1992 he was working as a taxi driver. He explained that, one night, while he was driving the applicant, Mr. Osman and Mr. Caravan, he was stopped by the police and asked to attend at the police station. He did. They all did, with the exception of Mr. Osman, who got out of the car as he had to meet someone.

[55] Mr. Ciobotaru testified that the three men entered a room inside the police station, together with six or seven uniformed police officers. At that point, they were accused of being “criminals,” and the police officers just started hitting them “everywhere” – from top to bottom – with their fists, kicking them with their legs, and hitting them with rubber police sticks. Mr. Ciobotaru suffered injuries to his ribs and head. The police officers continued hitting them even after they were on the floor. Mr. Ciobotaru testified that he heard the applicant and Mr. Caravan also screaming from the pain of the beating. According to Mr. Ciobotaru, the police were talking about their families, and were swearing at them, while they were beating them. The officers were not, however, asking them any questions about the case. Both Mr. Ciobotaru and the applicant were saying that they did not understand why this was happening. Mr. Ciobotaru estimated that this beating lasted for approximately three or four hours, but with periodic breaks of 10 to 15 minutes, and it left them in “trauma.” Mr. Ciobotaru suffered bruising to his ribs, a cut lip, a “broken head” and lesions on his neck.

[56] Mr. Ciobotaru testified that when the beating concluded, they were taken to separate rooms in the basement of the police station. Mr. Ciobotaru was told that someone had died and that he was going to jail. He remained in that room in the basement, alone, until the next day.

[57] Mr. Ciobotaru testified that, the following morning, the police took them to another police station, the provincial police station, where they were placed under arrest, told that there would be an investigation, and housed in a cell with other fellow prisoners. Mr. Ciobotaru was placed in a different cell than the one used to confine the applicant and Mr. Caravan. Mr. Ciobotaru testified that he remained in that cell for approximately the next four months. According to Mr. Ciobotaru, during this four-month period of time, the police never tried to talk to him, or take a statement from him, and he experienced no further beatings or physical violence. However, he was able to overhear “screaming” and the sounds of a beating taking place in the room located above his cell. Further, Mr. Ciobotaru observed “signs of beatings” on the applicant.

[58] Mr. Ciobotaru testified, however, that he did speak to the prosecutor, starting on the second day of his confinement in this police station. During this first meeting, Mr. Ciobotaru told him that he did not know anything about the killing, as he did not see what happened – he was just driving the men around in his taxi. Subsequently, he was forced to sign certain declarations that had been prepared for him, and to “tell a certain name.” He was threatened with a lengthy jail term if he did not cooperate. Mr. Ciobotaru estimated that during the subsequent four-month period he may have met with the prosecutor approximately 20 times. The police, however, never spoke to him. He explained that the police are “not interested in you once you got to the prosecution.”

[59] Mr. Ciobotaru testified that he only saw the applicant and Mr. Caravan about once a month, to renew their arrest mandate, during this four-month period that they were being held separately in the police station. Mr. Ciobotaru testified that, during one of these monthly meetings, he told the judge about the police hitting him. He also testified that he told the prosecutor about the police hitting him.

[60] Mr. Ciobotaru testified that, at the conclusion of his trial, he was convicted and sentenced to 15 years in the penitentiary. However, his subsequent appeal was allowed, and his sentence was reduced to the term of two years and ten months imprisonment that he had already served, and he was set free. Mr. Ciobotaru mentioned the police beatings to the court on his appeal, although the appeal court did not mention it in its judgment. The appeal court accepted that he was not aware of the plan to murder the deceased, but helped them afterwards.

[61] In cross-examination, Mr. Ciobotaru testified that, during his trial, he took the witness stand and gave evidence in his own defence. He did not testify against anyone else because he did not see anything or know anything. Mr. Ciobotaru also testified, however, that he saw the applicant also get into the witness box during the trial and speak and give evidence in his own defence. Indeed, he heard the applicant testify that he “did not stab the victim,” that he did not even have a knife in his possession that night, and that he was “innocent” of the alleged offence. The other co-accused, Mr. Osman and Mr. Caravan, were also allowed to speak in court, and testify and defend themselves.

[62] Mr. Ciobotaru testified that he was able to speak to the judge several times during the trial, but he was not given an opportunity to say whatever he wanted, and his time was limited. His lawyer was, however, able to speak on his behalf. It was the same for all of his co-accused.

6. The Evidence of Gihan Iusein

[63] The applicant’s brother, Gihan Iusein, testified that he visited the applicant, in prison, in the summer of 1993, following his conviction. They were not able to talk openly in that environment, and the applicant never mentioned anything to him about what happened with the police. However, after the applicant was transported to the hospital for medical treatment, Mr. Iusein was able to visit the applicant there, where it was easier for them to talk.

[64] Mr. Iusein testified that during his visits with the applicant, while he was hospitalized, the applicant told him how hard it was following his arrest. The applicant explained that on the day he was arrested he was “really beaten up” and then he was confined for another five months. The applicant explained that, after this beating, he could not even walk for a couple of days, as the police had beaten him on his heels, and hit his body with a telephone book. Mr. Iusein explained that the applicant was “beaten up for the first two, three weeks when he got arrested.”

[65] Mr. Iusein testified that, years later, after the applicant returned to Canada in 1996, the applicant would periodically, “once in a blue moon,” mention the things that had happened to him in Romania. For example, according to Mr. Iusein, the applicant described an incident when a rag was placed over his face and water was poured over his face, which was a type of “torture” to which he had been subjected. The applicant also told him that he had been subjected to “electrocution.”

[66] Mr. Iusein testified that he and his mother were involved in hiring the applicant’s lawyers. He explained that the lawyer they hired for the trial proceedings acted for the applicant “throughout the trial,” and it was only after he was convicted and sentenced to 18 years imprisonment that they hired a new lawyer for the appeal.

III Analysis

1. Jurisdiction to Stay the Extradition Proceedings

[67] While an extradition judge does not have an inherent jurisdiction to consider issues such as abuse of process, or alleged violations of the Charter of Rights, an extradition judge does have the statutory jurisdiction to deal with such issues pursuant to s. 25 of the Extradition Act, S.C. 1999, chap. 18, provided that the issues “pertain directly to the circumscribed issues relevant at the committal stage of the extradition process.” See United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 57; United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, at para. 35; United States of America v. Khadr, 2011 ONCA 358, 106 O.R. (3d) 449, at paras. 29-32, 37-54, leave refused, [2011] S.C.C.A. No. 316; United States of America v. Lane, 2014 ONCA 506, 121 O.R. (3d) 721, at paras 45-51; United States of America v. Whyte, 2016 ONCA 624, 352 O.A.C 45.

[68] Nevertheless, as the Supreme Court of Canada re-affirmed in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 32, 40-41, it will only be legally appropriate to stay proceedings where: (1) there has been prejudice to the accused’s right to a fair trial or the integrity of the justice system, that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome;” (2) there is no other alternative remedy reasonably capable of redressing the prejudice; and, where (after steps one and two) there is still uncertainty over whether a stay is warranted, (3) where the court concludes that the proceedings should be stayed after balancing the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits.” See also R. v. O’Connor, [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1, at paras. 63, 73; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, 118 C.C.C. (3d) 443; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 53-57.

[69] There are two types of prejudice that can result in the granting of a stay of proceedings, namely: (1) prejudice to the accused’s right to a fair trial; and (2) prejudice to the integrity of the justice system. Misconduct which compromises trial fairness is the “main category” of the abuse of process that will lead to a stay of proceedings, whereas misconduct that risks undermining the integrity of the judicial process is the “residual category” of abuse of process that will lead to a stay of proceedings. The legal test is the same for both categories, but the test will often play out differently depending upon which category is invoked. See United States of America v. Lane, at paras. 48-50, leave denied, [2014] S.C.C.A. No. 425; R. v. O’Connor, at para. 73; R. v. Babos, at paras. 31-33, 39, 45.

[70] The main issue in the present case is whether the alleged misconduct of the Romanian authorities – in allegedly beating and torturing confessions from the applicant, permitting an inherently unfair criminal trial, delaying the extradition process, and then deliberating trying to mislead the Canadian authorities in the extradition process – is so offensive to societal notions of fair play and decency that to permit the extradition of the applicant for purposes of serving the remainder of his sentence, would contravene fundamental notions of justice and undermine the integrity of the justice system. In other words, has the alleged Romanian state misconduct been so egregious and harmful to the integrity of the justice system that extradition of the applicant would suggest that the justice system condones misconduct that offends society’s sense of fair play and decency? See R. v. Babos, at paras. 35-38, 40-44; United States of America v. Lane, at para. 50; Czech Republic v. Zajicek, 2012 ONCA 99, at paras. 13-28.

[71] The appellate court jurisprudence has consistently repeated that the “prospective” remedy of a stay of proceedings is the “ultimate,” “final” and “most drastic” remedy, which permanently concludes the case without any hearing on the merits. Accordingly, a stay of proceedings is reserved for only those “clearest of cases” where the “very high threshold” for abuse of process is reached. It will be only in “exceptional” or “relatively very rare” cases that state misconduct will be “so egregious that the mere fact of going forward in the light of it will be offensive.” See R. v. O’Connor, at para. 68; Canada (Minister of Citizenship and Immigration) v. Tobiass, at para. 91; R. v. Babos, at paras. 35-47.

2. Was the Applicant Subjected to Violent Beatings and Torture?

[72] I am satisfied, at least on the balance of probabilities, that the applicant was subjected to at least some form of police violence immediately after his arrest on July 10, 1992, when he was first confined in the police station. I do not accept that this violence continued for days, or that it was nearly as egregious as the applicant or any of the other accused has asserted, or that this violence was undertaken for the purpose of coercing confessions from the applicant, or any of the other accused men. However, as I have said, I do accept that the applicant was subjected to at least some violence on the part of the police immediately after his arrest. The applicant and two of his co-accused, Mr. Osman and Mr. Ciobotaru, all described, in different ways, experiencing some post-arrest violence by the police. Moreover, in July of 1992, the police abuse of criminal suspects was not uncommon in Romania. See, for example, Helsinki Watch Report, Prison Conditions in Romania (June, 1992), at pp. 34-37, available online at: https://www.hrw.org/sites/default/files/reports/ROMANIA926.PDF; Helsinki Watch Report, Lockups in Romania (January, 1993), at pp. 2,10-12; Nigel S. Rodley, United Nations Economic and Social Council – Report of the Special Rapporteur, (January, 1995), at paras. 603-614, 922-926, available online at: http://hrlibrary.umn.edu/commission/thematic51/34.htm.

[73] That said, I do not accept that the applicant suffered the extensive beatings, torture and sexual abuse that he claims to have been subjected to while he was under arrest and confined in jail in Romania. In my view, his testimony in this regard is almost entirely fabricated and wildly exaggerates the violence he may have actually suffered at the hands of the police. Moreover, as I have indicated, I am satisfied that the police violence that the applicant experienced immediately following his arrest on July 10, 1992, was not associated with the written statement that he ultimately provided, with the assistance of defence counsel, on July 13, 1992. Recall in this regard that, according to Mr. Ciobotaru, during the post-arrest violence, the police were calling the accused men “criminals,” talking about their families, and swearing at them – but they were not asking them any questions about the case. Moreover, neither at trial, nor on appeal, did the applicant or his retained lawyer, raise any issue with respect to the admissibility of his July 13, 1992 statement to the police. Indeed, at trial the applicant indicated that the police had questioned him fairly.

[74] The applicant detailed a horrific catalogue of repetitive torture and violent abuse at the hands of the Romanian police, virtually all of which was personally overseen and prompted by the Romanian prosecutor. The applicant not only described his initial beatings in the police station in the days following his arrest, but he also described how he was repeatedly tortured at the provincial police station for the next five months. There, according to the applicant, he was not only regularly subjected to violent and painful beatings, but he was also subjected to torturous “punishments,” which included being handcuffed and chained to a chair in a kneeling position for hours, being water-boarded while blindfolded horizontally in chair, hung naked by his wrists from ceiling pipes while cold water was poured over his body, having his testicles subjected to electric shocks, and repeatedly sexually assaulted by the prosecutor. I do not accept any of this evidence. In my view, this litany of abuse did not happen, and was simply manufactured by the applicant, in order to avoid being returned to Romania to serve the remainder of his sentence for murder.

[75] This evidence was not confirmed or corroborated by the other evidence in this case. First, Mr. Osman, a life-long friend of the applicant, confirmed some of the initial police violence following their arrest, but he was not subjected to any such alleged torture, nor did he personally witness any of the alleged torture of the applicant in the provincial police station. Mr. Osman indicated only that, during their first month in the provincial facility, he heard the applicant periodically screaming from another room. In my view, in this evidence Mr. Osman was simply trying to provide evidentiary assistance to his old friend. I reject his evidence in this regard. Second, Mr. Ciobotaru also confirmed the initial police violence following their arrest, but he testified that, once they were moved to the provincial police station, there was no further violence against him during any of the four months he was confined in that facility. While Mr. Ciobotaru also claimed to overhear screaming and the sounds of a beating in the room above his cell and said that he saw “signs of beatings” on the applicant, I similarly do not accept his evidence in this regard. Like Mr. Osman, he was simply trying to help the applicant, an old friend, with this evidence. Third, the applicant’s brother never witnessed any of the violence allegedly inflicted on the applicant, but rather was only able to relate previous consistent statements to him by his brother. This evidence does not establish, or even help to establish, in my view, that the applicant was repeatedly subjected, over a period of months, to the horrendous torture, violent beatings, and other punishments he claimed.

[76] Most significantly, however, the applicant’s claims of repetitive horrific torture, during the five months he was confined in the provincial police station, were not confirmed or in any way corroborated by any medical evidence. Indeed, the available medical evidence proves that the alleged torture simply did not take place. Most importantly in this regard, the applicant was examined medically by three doctors on September 7, 1992, nearly two months after he had been transferred to the provincial police station, and in their medical report they noted that they saw no physical injuries on the applicant (apart from an injury to the nail bed on one of his fingers) and the applicant complained to them only of fatigue and loss of appetite. The applicant suggested that this hospitalization was because the beatings and torture had left him vomiting blood and with blood in his urine. In fact, the applicant had been sent to the hospital for this medical assessment because of the symptoms associated with his hepatitis. Moreover, if the applicant had been repeatedly tortured as he claimed, these doctors could not have helped but observe at least some evidence of that torture, and the applicant surely would have complained about that torture to those doctors. Instead, the applicant admittedly made no complaint to the doctors, and the only physical injury the doctors observed on the applicant was an injury to one of his fingernails. In my view, this medical evidence convincingly proves that the applicant was simply not subjected to the extensive torture that he claimed. Indeed, I find as a fact, that the applicant was subjected to no further institutional violence once he arrived, within days of his arrest, at the provincial police station. Indeed, I am satisfied that the applicant suffered no further violence from the police beyond the night of his arrest.

[77] In concluding that the applicant was simply not subjected to the horrendous beatings tortures and other punishments that he claimed, I reject, as I have indicated, the testimony of the applicant himself in support of this claim. The applicant clearly has a motive to invent such a story. He is, I am sure, not the least bit interested in being returned to a prison in Romania to serve out the remainder of his 18 years sentence of imprisonment for murder. However, his credibility as a witness is also suspect for a number of other reasons.

[78] For example, in his Canadian citizenship application, filed in 1997, just months after he returned to Canada, the applicant failed to disclose the fact that he had been convicted of murder in Romania in 1994. Indeed, while the applicant had spent in excess of three years in Romania between 1992 and 1996, the applicant expressly indicated that he had spent only 190 days away from Canada between June 1996 and December 1996. Further, on his residence questionnaire, the applicant indicated that he left Canada on June 7, 1996 to visit family and had to spend some extra time in Romania to sell some family property. That was obviously a lie. The applicant made no mention of the fact that he was arrested on July 10, 1992, for murder, and remained either imprisoned or hospitalized from that time until he fled Romania in September of 1996. Despite his denial, clearly the applicant deliberately concealed his murder conviction from the Canadian immigration authorities. See Attorney General of Canada v. Iusein, at paras. 29-33. In any event, as I have indicated, I reject the testimony of the applicant that he was repeatedly subjected to violent beatings, tortures and other punishments while imprisoned in the provincial police station.

[79] In a somewhat different context, R.F. Goldstein J. drew the following conclusions, in his disclosure ruling (Attorney General of Canada v. Iusein), at para. 32, about the credibility of the applicant in relation to his allegations of torture:

The … problem is simply that [the applicant] 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 [the applicant] 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.

3. Did the Romanian Prosecutor Rely Upon a Confession Extracted by Police Violence?

[80] While I am satisfied, as I have indicated, that the applicant and his co-accused were likely subjected to some limited police violence immediately after their arrest following the offence, I am not satisfied that this violence resulted in the extraction of any inculpatory confession or statement from the applicant.

[81] In his July 13, 1992 statement to the police, witnessed by the applicant’s defence lawyer, the applicant denied being involved in any way in the initial incident between Mr. Osman, Mr. Tudorascu and Mr. Caravan in the Melody bar. The applicant claimed that he was “not involved in this scandal in any way, nobody hit [him] and [he] did not hit anybody.” Further, while the applicant admitted in this statement that he was subsequently armed with the black cutting knife, which he put under his shirt, he denied that he ever stabbed Mr. Tudorascu with that knife. Rather, the applicant claimed that it was Mr. Tudorascu that struck him in the face, and that it was Mr. Osman that later hit Mr. Tudorascu with the stick on his head and Mr. Caravan that later struck Mr. Tudorascu with his knife.

[82] Accordingly, even if, contrary to my finding, the post-arrest police violence had been undertaken in order to try to extract a confession from the applicant, it simply did not accomplish that goal. Rather, during the first few days that he was in police custody following his arrest, the applicant maintained his innocence. This exculpatory statement was, according to the official record of the Romanian court proceedings, the only post-arrest statement the applicant provided to the police which was placed before the trial court. Therefore, as a matter of fact, the Romanian prosecutor simply did not rely upon any violently extracted inculpatory statement or confession by the applicant in establishing his alleged guilt in connection with this murder.

[83] Moreover, in his January 19, 1993 courtroom statement, the applicant maintained this same exculpatory position, consistent with his earlier statement. He admitted that he had witnessed the initial incident at the Melody bar between Mr. Osman and Mr. Tudorascu and had signaled to Mr. Caravan to intervene and separate them. The applicant also admitted that, later, he accepted possession of the “bigger and broader” knife with the “rusty cutting” edge, given to him by Mr. Caravan, “just in case something happened,” and because the applicant thought that they might again meet up with Mr. Tudorascu, who was “a big guy” and a “former wrestler.” The applicant also stated that, subsequently, when they again encountered Mr. Tudorascu, it was Mr. Osman and Mr. Caravan that were involved in the fight with Mr. Tudorascu and his friend. According to this courtroom statement by the applicant, it was Mr. Tudorascu that ran toward him, punched him and tried to “hammer-lock” him. It was only at that point, that the applicant took out his knife and “punched” Mr. Tudorascu on his head. In his statement, the applicant explained that he did not think that the knife could have even “bruised” Mr. Tudorascu. According to this courtroom statement, while Mr. Tudorascu then tried to run away, he was caught by Mr. Caravan and Mr. Osman, and they inflicted further violence on Mr. Tudorascu, with Mr. Caravan stabbing him with his knife and Mr. Osman hitting him with his stick. Further, as part of his courtroom statement, the applicant stated: “I uphold my statements,” and agreed that, at the “police station,” he was “interrogated correctly.”

[84] It is, in my view, apparent that the applicant was not convicted of murder because of any improper reliance by the Romanian prosecutor on a violently extracted confession by the applicant, but rather because the court rejected the applicant’s exculpatory position – advanced both in his July 13, 1992 statement and in his courtroom statement – that in striking Mr. Tudorascu with his fist (not hitting him with any knife), he was acting only in self-defence. As R.F. Goldstein J. aptly noted, in his disclosure ruling, “the Romanian court did not, it appears, rely on [the applicant’s] confession,” but rather “[i]t seems that the court rejected his defence of self-defence.” See Attorney General of Canada v. Iusein, at para. 25.

4. Were the Romanian Trial Proceedings Fundamentally Unfair to the Applicant?

[85] I reject the suggestion by defence counsel that the Romanian criminal trial proceedings against the applicant were in any way fundamentally unfair. Quite to the contrary. In my view the evidence supports all of the following conclusions.

[86] First, the July 13, 1992 typed statement that was signed by the applicant, was also witnessed, as the statement itself expressly indicates, by his defence lawyer at the time. This may not have been the applicant’s chosen and personally retained defence counsel, but rather may have been some type of duty counsel provided to the applicant for that purpose. Nevertheless, I am satisfied that the applicant had the advice and assistance of defence counsel in making that almost entirely exculpatory statement to the police.

[87] Second, I am satisfied, based upon the evidence of the applicant’s brother, and the official court records from Romania, that the applicant had the assistance of retained defence counsel throughout his criminal trial proceedings – from start to finish. I reject the applicant’s suggestion that his lawyer left the case part-way through the trial, leaving the applicant unrepresented for the remainder of the trial.

[88] Third, based upon the testimony of Mr. Ciobotaru, and the official documents regarding the criminal trial in Romania, I am satisfied that the applicant was permitted to testify – and did in fact testify – in his own defence at trial, explaining to the court that he “did not stab the victim,” and that he was “innocent” of the alleged offence of murder.

[89] In short, I am satisfied that the Romanian trial was fundamentally fair to the applicant, and the nature of those trial proceedings can provide no basis for the stay of proceedings requested by the applicant in this case.

5. Has Delay Prevented the Applicant From Responding to the Extradition Request?

[90] The applicant claims that, given the delay in Romania’s extradition request, and the delay on the part of the Canadian authorities in acting upon that extradition request once it was made by the Romanian authorities, the passage of time has prevented him from collecting and presenting all of the evidence relevant to his claim of “torture, cruelty and inhumane treatment” so as to render these “extradition proceedings irreparably unfair.” I disagree.

[91] The applicant fled Romania in September of 1996, and eventually made his way back to Canada in late 1996. Romania formally requested the extradition of the applicant on August 10, 2009. After the appropriate investigations, the federal Minister of Justice authorized the Attorney General of Canada to proceed with the Romanian extradition request with respect to the offence of murder on January 9, 2013. The applicant was arrested on February 15, 2013, and released on bail on March 5, 2013. While an extradition hearing and a related disclosure application were scheduled by the court, these proceedings could not take place as the applicant fled from the authority of the court. He remained unlawfully at large until he was finally arrested again on March 10, 2015. The applicant has remained in custody since that time.

[92] The delays that have been subsequently been experienced in the continuation of these extradition proceedings have all been at the behest of the applicant. His disclosure application was heard on October 7, 2016, and was dismissed on October 31, 2016. His application for state-funded counsel was heard on January 2, 2018, and was granted January 19, 2018. See Romania v. Iusein, 2018 ONSC 379, 145 W.C.B. (2d) 129. Thereafter, once he obtained counsel, a number of delays in the extradition hearing were caused by adjournment requests by defence counsel for the purpose of trying to locate witnesses and gather further evidence in relation to the pending application to stay the proceedings.

[93] The only potential witness that defence counsel was not successful in locating was his trial counsel, Mihei Valeriu. Had he been located, Mr. Valeriu might have been able to provide some explanatory evidence as to the nature of the Romanian trial proceedings, but we have the official court records in relation to those proceedings in any event. Mr. Valeriu could not have contributed any evidence on the important question of whether or not the applicant was subjected to the beatings, torture and other punishments that he claimed he had been subjected to, as at that point in time, Mr. Valeriu had not yet been retained by the applicant. Of course, when he was retained to act for the applicant at the trial proceedings, Mr. Valeriu did not raise any issue concerning the admissibility of the applicant’s statement to the police, or the manner in which the applicant was treated by the police.

[94] Accordingly, I see no evidentiary basis upon which to conclude that the delay in this case has interfered in any significant way with the ability of the applicant to mount his application to stay the proceedings.

[95] I note in passing that, in any event, the delays in this case have all been caused, in one way or another, by the applicant himself. It is unrealistic to suggest that the Romanian or Canadian authorities should be blamed for any delays given that the applicant has been doing everything in his power to delay and/or prevent his potential return to Romania through these extradition proceedings. See Romania v. Boros, 2017 ONSC 1656.

6. Did the Romanian Authorities Try to Deliberately Mislead the Canadian Authorities?

[96] There is no question that the original record of the case provided by the Romanian authorities contained a number of material translation errors. Those translation errors were subsequently corrected with a fresh translation of the record of the case. The applicant argues that those translation “errors” show that the Romanian authorities were deliberately attempting to mislead the Canadian authorities. I disagree.

[97] In his ruling on the disclosure motion, R.F. Goldstein J. concluded this argument was raised for the first time by defence counsel only after he had received the corrected record of the case. See Attorney General of Canada v. Iusein, at para. 45. Defence counsel maintains, however, that the Romanian authorities only offered their translation “corrections” after their earlier “misrepresentations” were brought to their attention by materials filed on behalf of the applicant.

[98] It matters not, in my view, how this issue unfolded chronologically. There is simply no evidence to support the applicant’s argument that the translation errors that were contained in the original record of the case where anything more than just that – translation errors. The fact that these translation errors were made in the original record of the case does not support the speculative notion that they were part of some deliberate attempt by the Romanian authorities to mislead the Canadian authorities.

[99] In short, I agree with the conclusion reached by R.F. Goldstein J. in his disclosure ruling that “[t]here is simply no basis or evidence to suggest that there was a deliberate attempt at manipulation” of these proceedings by the Romanian authorities. See Attorney General of Canada v. Iusein, at para. 45. See also United States of America v. Wacjman, 171 C.C.C. (3d) 134 (Que.C.A.).

7. The Remedy of a Stay of Proceedings is Not Justified in the Circumstances

[100] In the final analysis, I am satisfied that the applicant has been able to establish only that he and his co-accused were likely subjected, immediately following their arrest on July 10, 1992, to some limited form of police violence. This violence was not nearly as extensive as claimed and did not lead to the police coercively extracting any inculpatory statement or confession from the applicant. Further, the applicant was subject to none of the subsequent abuse, violence, torture, sexual assaults and other punishments he claimed. Subsequently, the applicant was fairly tried and ultimately convicted of the murder of Mr. Tudorascu. During his trial proceedings he was represented throughout by his own retained counsel, and he was permitted to testify in furtherance of his own defence. His defence was simply rejected by the court.

[101] The only further issue to consider is, accordingly, whether or not the post-arrest police violence toward the applicant justifies the permanent stay of these extradition proceedings against the applicant. As this issue invokes the “residual category” of abuse of process prejudice, the main question is whether Romania has engaged in conduct that is so offensive to societal notions of fair play and decency that proceeding with the extradition of the applicant in the face of that conduct would be harmful to the integrity of the justice system. See R. v. Babos, at para. 35. In my view, a stay of proceedings is not an appropriate remedy for this state misconduct by the Romanian authorities. This is simply not one of the “clearest of cases” where such a drastic remedy might be appropriate. See R. v. O’Connor, at para. 68; R. v. Babos, at para. 31.

[102] First, while the violence of the police amounted to serious misconduct by the Romanian authorities and would, undoubtedly, have been painful for the applicant, he suffered no lasting injuries (physical or emotional) from this incident, and it was not subsequently repeated. Further, the applicant suffered no prejudice to his fair trial interests, in that the Romanian police did not coercively obtain any inculpatory statement or confession from the applicant as a result of that police violence. While violence by police officers against arrested suspects is invariably damaging to the integrity of the justice system, the fact that it failed to produce any evidence damaging to the fair trial interests of the applicant means that this prejudice to the overall integrity of the justice system will not be manifested, perpetuated or aggravated through the conduct of the extradition proceedings, or its result, nor will this prejudice be manifested, perpetuated or aggravated by the fact that, if the applicant is ultimately surrendered to the Romanian authorities through the extradition process, he will have to serve the remaining portion of his 18 year sentence for his role in the murder of Mr. Tudorascu.

[103] Second, this is not a case where there is no other remedy reasonably capable of removing the perceived prejudice. Whether the applicant should ultimately be surrendered to Romania is a question for the Minister of Justice. See United States of America v. Kwok, paras. 100-101, 107. The applicant may, of course, argue that the Minister should not order the surrender of the applicant based upon the post-arrest violence he suffered at the hands of the police. The Minister may refuse to order the applicant’s surrender if the Minister concludes that his surrender would be unjust or oppressive in all of the circumstances. In addition, if the applicant is ultimately surrendered to the Romanian authorities, he may seek clemency, or perhaps a reduction in his sentence, as an effective remedy for his violent mistreatment by the police. Further, the applicant may also consider commencing a civil action for monetary damages or other remedial sanctions against the Romanian police. These various alternative remedies, if granted, would remedy the only actual prejudice suffered by the applicant. These potential remedies, alone or in combination, would also appropriately “dissociate the justice system from the impugned state conduct going forward.” See R. v. Babos, at para. 39.

[104] Third, to the extent that there is any need to balance the affront to fair play and decency caused by the violent police misconduct following the arrest of the applicant, against society’s interest in the extradition of the applicant to serve the remainder of his 18-year sentence of imprisonment for his role in the murder of the deceased, this balancing also leads me to conclude that the “drastic” remedy of a stay of proceedings would be excessive and inappropriate in the circumstances of this case. It would effectively permit an escaped, convicted murderer to avoid serving the remainder of his lawfully imposed sentence, simply because he was once subjected to some limited violence by the police immediately following his arrest for the murder. There is no doubt that violent police misconduct against an arrested suspect may, in some circumstances, justify the imposition of a stay of proceedings. See, for example, R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131, at paras. 53-62, 68, 83-90, 92-96. Such abuse may directly implicate the integrity of the Canadian extradition court. See also United States of America v. Khadr, at para. 4, 40-52; Czech Republic v. Zajicek, at paras. 18-19, 24.

[105] In my view, however, this is not one of those cases. Murder is the most serious offence known to the criminal law. The applicant has already been fairly tried and convicted of this offence and sentenced. Needless to say, there is a compelling public interest in having offenders who are convicted of such crimes serve their lawfully imposed sentences – in the country where they committed the offence. Canada cannot become a sanctuary for convicted murderers from other countries. In contrast, the affront to fair play and decency caused by the violent, but brief, single incident of violent state misconduct by the Romanian police officers against the applicant and his co-accused is less significant. The balancing process, to the extent that it is relevant in this analysis, weighs heavily against the requested remedy of a stay of proceedings.

[106] In the final analysis, I am simply not satisfied that the applicant has established that the limited violent post-arrest misconduct by the Romanian police against the applicant, in all of the circumstances of the present case, brings this case within the “clearest of cases” where a stay of proceedings is an appropriate remedy for any perceived abuse of process.

IV Conclusion

[107] In the result, the application to stay the extradition proceedings is dismissed.

[108] As I have indicated, while I am satisfied the applicant was likely subjected to some limited physical violence at the hands of the police immediately after his arrest on July 10, 1992, I also find as a fact that the applicant was not subjected to any of the further alleged violent abuse, torture, sexual assaults and other punishments that he claimed. Moreover, I am not satisfied that the initial police violence inflicted on the applicant led to the police extracting any inculpatory statement or confession from the applicant. Rather, the applicant continued to maintain that he was not involved in the killing of the deceased. Further, the trial proceedings that were conducted in the Romanian court were not fundamentally unfair. The applicant was represented by his own retained defence counsel throughout those trial proceedings, and the applicant was personally permitted to provide the court with his own exculpatory testimony. He was also permitted to have the “last word” in the court proceedings where he was, again, permitted to speak directly to the court. The delays in the extradition process have not prevented the applicant from perfecting and presenting his application to stay the extradition proceedings. Finally, the translation errors that were found in the original record of the case were corrected and were not part of any attempt by the Romanian authorities to mislead the Canadian authorities and manipulate these extradition proceedings. There is, in short, no basis upon which to properly stay these extradition proceedings.

[109] Finally, I am satisfied that there is otherwise sufficient evidence to justify an order committing the applicant to extradition. Indeed, the parties have jointly expressly agreed that, if the applicant is not successful in his request to have the extradition proceedings stayed, the evidence otherwise justifies the requested committal order. Accordingly, the applicant is committed for extradition to Romania to serve out the remainder of his sentence for the murder of Mihail Tudorascu.

Kenneth L. Campbell J.

Released: July 31, 2018

COURT FILE NO.: 42/13 DATE: 20180731 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ATTORNEY GENERAL OF CANADA (ON BEHALF OF ROMANIA) - and - GIVAN IUSEIN REASONS FOR JUDGMENT K.L. Campbell J. Released: July 31, 2018