Court File and Parties
COURT FILE NO.: CR-18-90000207-MO DATE: 20181019 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Respondent – and – NADAL DIYA a.k.a. NADAL YOUSSIF DIYA a.k.a NADAL YOUSSIF DIYA Applicant
Counsel: Christopher Bundy & R. Sewell, for the Attorney General of Canada C.S. White, for the Applicant
HEARD: October 18, 2018
REASONS FOR JUDGMENT
FAIETA J.
INTRODUCTION
[1] A warrant for the Applicant’s arrest was issued by the United States District Court for the Southern District of Texas on September 11, 2018. The warrant specifies that the Applicant is charged with “Fraud and misuse of visas, permits and other documents” pursuant to 18 U.S.C. § 1546(a). This charge carries a maximum penalty of up to ten years in prison, a fine of up to US$250,000.00 and a term of supervised release of up to three years after his release from prison, should he be sentenced to imprisonment.
[2] The Applicant was arrested on September 12, 2018 in Toronto after he had travelled by commercial aircraft from Dubai, United Arab Emirates pursuant to a provisional arrest warrant ordered by this Court on that same day made under s. 13(1) of the Extradition Act, S.C. 1999, c. 18 (the “Act”). At the time of his arrest the Applicant was travelling on a passport issued by the Commonwealth of Dominica.
[3] The Applicant’s application for bail was heard yesterday.
[4] For reasons described below, I have granted his application with one modification.
BACKGROUND
[5] The Applicant delivered an affidavit and was examined at the bail hearing. The Applicant is 46 years old. He was born in Syria and has resided in the United Arab Emirates, without interruption, for the last 40 years. He has a Grade 9 education. He is married and has two teenage children and a stepson. They reside in a villa located in Jumeirah Park in Dubai, United Arab Emirates. Since about 2012 he has been the Chief Executive Officer of a business that provides services and engineering support to the petroleum industry in the Persian Gulf area. Currently, his business’s only contracts are in the Abu Dhabi area of the United Arab Emirates.
[6] The Applicant earns US$11,500 per month. The Applicant owns the villa in which he resides with his family. He estimates that it has a value of between US $700,000 - $800,000. The Applicant pays US$3,500 per month towards a mortgage against that property however there is no evidence regarding the amount of that mortgage. The Applicant also owns two other properties, a second villa and an apartment, in the vicinity of his home in the United Arab Emirates. There is no evidence of the value of these properties, net or otherwise. The Applicant states that he also owns equipment presumably the equipment related to his oil service business.
[7] A letter dated October 2, 2018 from Ryan K. Patrick with the Southern District of Texas, U.S. Department of Justice states that:
Diya is a businessman involved in the petroleum industry in the Persian Gulf area and elsewhere. He has been in that business for approximately 20 years and has amassed a large net worth during that time, believed to be at least several million United States dollars. Diya’s financial means alone indicate that he may be a flight risk should he be given a bond in Canada.
[8] The assertion that the Applicant has a net worth of at least several million United States dollars was not directly addressed by the Applicant at the hearing.
[9] There is no evidence of the Applicant’s net worth nor is there any evidence of the Applicant’s income and expenses prior to his arrest, except as described above.
[10] The Applicant has a Syrian travel document that allows him to work in the United Arab Emirates. He is not a citizen of the United Arab Emirates. The Applicant has been a citizen of the Commonwealth of Dominica since December 2016. He obtained Dominican citizenship through a program that grants citizenship in exchange for a donation of US$100,000. The citizenship application process took four or five months and, with legal and other related fees included, cost the Applicant a total of about US$147,000 which was paid in installments over that period.
[11] The Applicant states that at the time of his arrest, he had flown from the United Arab Emirates to Toronto intending to board another flight to Calgary in order to attend meetings regarding the possible purchase of supplies and equipment for his business. Prior to his arrest, the Applicant had never been in Canada.
[12] The Applicant also states that his last visit to the United States of America was in 2014 when he visited to purchase equipment for his business and attend an oil industry conference.
The Charge
[13] The circumstances that give rise to the charge and request for extradition are described in the affidavit of Detective Constable Robert Frigon of the Toronto Police Service, sworn September 12, 2018, and the “Statement of the Facts and Urgency in Support of Provisional Arrest Request” provided by Arthur R. Jones, Assistant U.S. Attorney, Southern District of Texas, U.S. Department of Justice on or about September 11, 2018, which is appended to that affidavit.
[14] The circumstances described in the above noted documents are as follows:
- On July 17, 2014 the Applicant arrived in Houston, Texas on a flight from Dubai on a tourist visa related to business interests that he claimed that he had in Texas;
- On July 19, 2014, he applied to open a business account at a bank in Texas about 45 miles north of Houston for a Texas-based business. The Applicant claimed to be a Guatemalan citizen and presented a fraudulent Guatemalan passport in his name. At the bank, the Applicant was accompanied by a Houston-based business associated (“CC”). The Applicant’s passport information was documented on the bank’s signature card for the account. The Applicant was listed as President and CC was listed as Vice President. The Applicant signed the signature card;
- On August 14, 2014, an FBI undercover employee (“UCE”) and an FBI confidential human source (“CHS”) met with the Applicant and CC in Lake Charles, Louisiana which is about a two hour drive east of Houston. During the meeting, CHS stated that he had obtained eleven fraudulent Guatemalan passports in the past 18 months and said because his contact had recently increased the price for fraudulent passports, he was looking for a new supplier. At the same meeting, the Applicant required a United States passport from the UCE. The UCE negotiated a price of $150,000 for a legitimate U.S. passport, but as discussed later, the Applicant through CC would eventually seek an Argentinian passport from the UCE. This conversation was recorded by the UCE and CHS;
- On August 28, 2014, the Applicant and CC had further discussions with UCE and CHS regarding provision of a fraudulent Argentinian passport. At the meeting, the Applicant and CC paid $10,000.00 to UCE in exchange for delivery of an Argentinian passport. This conversation was recorded by the UCE and CHS;
- On September 10, 2014, the Applicant presented a fraudulent Guatemalan passport to the Guatemalan Consulate in Houston, Texas in order to obtain Consular Identification documents. The Ministry of Immigration for the Guatemalan Government informed the consulate the passport was fraudulent as the passport number belonged to another individual. The Consulate confiscated the passport and delivered it to the FBI;
- On September 17, 2014, the Applicant left the United States and returned to the United Arab Emirates in order to renew his visa to the United States. His visa application was denied and thus he was not legally able to travel to the United States;
- On November 20, 2014, CC arrived at the Houston Bush Intercontinental Airport from Istanbul, Turkey. CC’s laptop was inspected by US Customs and Border Protection officers. The officers found several images of Guatemalan passports contained on his laptop hard drive including the one in the Applicant’s name that had been confiscated about one month earlier;
- UCE and CHS held meetings with CC between December 15-17, 2014 in Lake Charles, Louisiana. During the meetings, CC requested that UCE produce a fraudulent Argentinian passport for the Applicant. CC provided a photocopy of the Applicant’s fingerprints and a copy of his fraudulent Guatemalan passport to the UCE in order to produce the Argentinian passport;
- On or about January 26, 2015 a Federal Express package was delivered to the CHS addressed to the UCE from CC. The contents of the package were two passport-sized photographs of the Applicant and a photocopy of ten print fingerprints;
- On June 4, 2015, the UCE and the CHS spoke to CC by telephone and requested that CC supply the Applicant’s address in order for the UCE to mail the fraudulent Argentinian passport to the Applicant. This conversation was recorded;
- On June 9, 2015, FBI Special Agents mailed a package in a standard FedEx Express cardboard envelope. The package contained a standard letter sized piece of paper stating that the contents were from the UCE. The package was sent to the address provided by the Applicant to CC and purportedly contained the Applicant’s fraudulent Argentinian passport. In fact, the package did not contain a passport; and
- The package was delivered on June 11, 2015. On that same day, CC texted the UCE and asked if the matter was a “joke” which confirmed that the Applicant had received an empty FedEx package except for a piece of paper stating that the contents were from the UCE. The Applicant never received the fraudulent Argentinian passport and later feared that the passport had been intercepted by government authorities.
The Proposed Bail Conditions
[15] The Applicant brings this application for an Order, pursuant to section 18(1)(i) of the Act, that he be released on bail on the following terms:
(a) The Applicant reside with surety Nabil Abou-Chalha and his parents Sabir and Amal Abou-Chala at their home at 4733 Owl Circle, Mississauga, Ontario L4Z 2W5; (b) The Applicant remain in the bail residence at all times EXCEPT in the direct presence of Nabil Abou-Chalha, Jihad Abou-Chalha, Ziad Abou-Chalha, or their parents Sabir and Amal Abou-Chalha or for medical emergencies; (c) The Applicant remain in the province of Ontario; (d) The Applicant attend court as necessary at 361 University Avenue, Toronto, Ontario; (e) The Applicant surrender all travel documents including passports, residency cards, visas, etc. and do not apply for any travel documents; (f) At the Applicant’s expense, be subject to electronic monitoring by Recovery Science Corporation (“RSC”) according to the following conditions: a. Enter into RSC’s Participant Agreement and comply with its terms; b. Wear a GPS ankle bracelet at all times; c. Permit RSC to install supplementary equipment and to inspect, replace and maintain equipment as it deems necessary; d. Comply with RSC leave notification and battery charging requirements; e. Cooperate fully with RSC staff; (g) The Applicant deposit $10,000 cash with the Superior Court of Justice; (h) The Applicant is not to possess any weapons or ammunition as defined by the Criminal Code; (i) The Applicant is to keep the peace and be of good behavior; and (j) The Applicant is to keep a copy of the recognizance on the Applicant’s person at all times.
[16] At the bail hearing, the Applicant stated that he would increase his cash deposit from $10,000 to $100,000.
[17] As noted, the Applicant also proposes that his two sureties will pledge the following amounts as security for his compliance with the terms of his release:
(a) Jihad Abou-Chalha: $10,000.00; (b) Nabil Abou-Chalha: $5,000.00.
[18] Although the proposed conditions contemplate that the Applicant will reside in the home of Sabir Abou-Chalha and Amal Abou-Chalha neither Sabir nor Amal delivered an affidavit nor were they examined at the bail hearing. They provided a letter that states that: (1) they became citizens of Canada in 1995; (2) live in Mississauga; (3) have known the Applicant and his family since about 1983: (4) are aware of the charge in respect of which the Applicant faces extradition to the United States; (5) are happy to assist in his supervision.
Jihad Abou-Chalha
[19] Jihad Abou-Chalha delivered an affidavit and was examined at the bail hearing. His evidence is as follows.
[20] Jihad Abou-Chalha (“Jihad”), testified that his father is 73 years old and his mother is 67 years old. He states that they are always home. He and his brothers had decided that his parents should not be sureties given their age. He also testified that he and his brothers decided that it would be best for them if the Applicant lived with their parents. He also states that his brother Nabil Abou-Chalha (“Nabil”) lives with his parents and has installed a video security system that notifies Nabil’s cell phone when an alarm is triggered.
[21] Jihad is 50 years old. He has been a Canadian citizen since 1991. Jihad resides in Mississauga with his wife and two daughters. He owns his home and estimates that it has a net value of about $745,000 taking into account his existing mortgage of about $55,000. He has $300,000 in RRSPs and $40,000 in a TFSA account. He states that it “will mean a lot” if he were to lose the $10,000 that he is prepared to pledge as a surety. Jihad worked as a software developer and has been unemployed since March 29, 2018 after his employer lost its main client.
[22] Jihad was contacted by the Applicant’s older brother for help following the Applicant’s arrest in September, 2018. Jihad and the Applicant’s brother, Enad, had been friends while in high school in the United Arab Emirates. Jihad knew the Applicant’s family from about 1983 until Jihad left the United Arab Emirates in 1986. Jihad has kept in touch with Enad and his other high school friends through a WhatsApp group account on birthdays and other special occasions.
[23] Jihad’s affidavit states that the Applicant is a “close family friend”. However, this is an overstatement. There has been limited contact between Jihad and Enad over the last 32-33 years. Further, Jihad never had a close relationship with the Applicant. Jihad acknowledged that did not know the names of the Applicant’s wife or children and that, prior to the Applicant’s arrest, his last in person contact with the Applicant or his family was 32 or 33 years ago.
Nabil Abou-Chalha
[24] Nabil Abou-Chalha (“Nabil”) delivered an affidavit and was examined at the bail hearing. Nabil’s evidence is as follows.
[25] Nabil is 37 years old. He was born in the United Arab Emirates and became a Canadian citizen in 1995. He lives in his parents’ home. At the age of 18, he received a conditional discharge and six months’ probation after pleading guilty to a charge of “weapons dangerous” that resulted from playing with a pellet gun in a public place.
[26] Nabil describes the Applicant as a family friend but not his friend. Nabil was 7 years old when he last saw the Applicant. Nabil has not communicated with the Applicant since that time. For the last 8 years he has owned a soccer retail store with his brother, Ziad Abou-Chalha. His salary is $55,000 per year. Although he works 7 days a week he states that his hours are flexible given that he works with his brother.
[27] Nabil indicated that the Applicant will live in his parents’ basement and will have his own room. Nabil’s parents are retired and are always home and thus the Applicant will be “constantly supervised”. Nabil can set a chime or an alarm to be set off on his security system if a door at his parents’ home is opened.
[28] Nabil does not have much savings nor does he own a home. Aside from his interest in his soccer retail business, he does not have any other assets. He states that it would cause him “extreme hardship” if he were to lose the $5,000 that he is pledging in support of the Applicant’s release.
[29] Nabil is prepared to supervise the Applicant and to comply with the requirements of the proposed bail plan in order to help a family friend.
[30] Nabil testified that his older brother Ziad, age 44, became a Canadian citizen in 1996 and has agreed to assist in the Applicant’s supervision. He states that Ziad will check on the Applicant to ensure that he is complying with his bail conditions and is never alone.
Ziad Abou-Chalha
[31] Ziad Abou-Chalha (“Ziad”) did not deliver an affidavit nor was he examined at the bail hearing. However, he provided a letter, similar in form and content to the letter provided by his parents. He states that he became a Canadian citizen in 1996 and lives in Mississauga. Ziad has known the Applicant and his family since about 1983 and is “happy to assist in his supervision”.
ANALYSIS
[32] Part XVI of the Criminal Code (ss. 493-529) includes provisions relating to bail.
[33] The gist of the bail provisions were describe by Justice Molloy in United States v. Khadr, [2006] O.J. No. 105, at para. 23, as follows:
This Part of the Code includes the provisions relating to judicial interim release, or bail. The usual rule is that a person charged with an offence is entitled to be released without conditions upon providing a standard form undertaking, unless the Crown "shows cause" why he should be subject to additional conditions or detained pending trial: Criminal Code s. 515. That general rule, however, is subject to a number of exceptions in which the onus is reversed. In those situations, the accused is required to be held in custody pending trial unless he "shows cause why his detention in custody is not justified": Criminal Code s. 515(6). ...
[34] In this case, there is no dispute that, given the nature of the charge, the onus rests with the Applicant to justify his release pending the extradition hearing. Counsel advise that the extradition hearing is tentatively scheduled for December 20, 2018.
[35] Pursuant to section 19 of the Act, the provisions of Part XVI of the Criminal Code apply, with any modifications that the circumstances require, in respect of a person arrested under section 13 of the Act.
[36] Under section 515(10) of the Criminal Code, the detention of an accused is necessary for one or more of the following reasons:
(a) to ensure his or her attendance in court in order to be dealt with according to law; (b) for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and (c) to maintain confidence in the administration of justice, having regard to all the circumstances, including: (i) the apparent strength of the prosecution’s case; (ii) the gravity of the offence; (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used; and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
[37] Other courts have found that the circumstances of an application for bail pending an extradition hearing requires that the usual principles governing a bail hearing to be modified:
- Where appropriate, the rules of evidence are relaxed to permit the admission of evidence, not normally admissible on a domestic bail application: United States of America v. Mordi, 2010 ONSC 6666, paras. 6-9. In this regard, I note that the assertion regarding the Applicant’s wealth found in Mr. Patrick’s letter dated October 2, 2018 is not supported by either by the Record of the Case (which has not been filed with the court) nor by the affidavit evidence filed;
- Ensuring adherence to Canada’s international obligations in extradition proceedings, as reflected by section 3 of the Act, is an additional matter for the court to consider in deciding whether to grant bail pending an extradition hearing. This point was made long ago by Justice Borins in United States of America v. Leibowitz, [1987] O.J. No. 1505, at paras. 11-12;
- Adherence to the principle of good faith in honouring Canada’s international obligations requires a court considering a bail application to view the risk of non-appearance more severely than might otherwise be acceptable in the case of domestic bail proceedings: United States v. Ross, 1993 CarswellBC 2753, para. 15 (B.C.C.A.); United States v. Edwards, 2010 BCCA 149, para. 18 (B.C.C.A.); Mordi, para. 5; United States v. Ugoh, 2011 ONSC 1810, para. 13.
The Applicant’s Position
[38] Counsel for the Applicant briefly raised a concern regarding the strength of the charge laid against the Applicant given that he had previously paid for a passport – namely, the passport issued by the Republic of Dominica. Given the evidence regarding the circumstances of the charge described above, much too little was said about this supposed weakness in the charge to give any weight to this submission.
[39] The Applicant submits that this case turns on the notion of the supervision of the Applicant by a “family friend”. Counsel submits that given that the members of the Abou-Chalha family are not too close to the Applicant and therefore they can better be trusted to ensure that the Applicant complies with the conditions of bail in order to protect their own interests than could be expected of a close family member. However, their financial exposure, totaling $15,000, if the Applicant fails to comply with the conditions of bail is very limited.
The Respondent’s Position
[40] The Respondent relies primarily on the first of the three grounds outlined in s. 515(10) of the Criminal Code for detention, namely, that the Applicant’s detention is necessary to ensure his attendance at the extradition hearing.
[41] The Respondent submits that the Applicant is a flight risk for the following reasons:
- The Applicant has access to significant funds as demonstrated by his ability to purchase a passport from the Republic of Dominica;
- The Applicant has demonstrated have access to, and the ability to use, fake passports;
- The Applicant has little or no connection to Canada;
- The Applicant lives and works in the United Arab Emirates; and
- Although the Abou-Chalha family appears sincere in their willingness to help the Applicant, neither they nor an ankle bracelet can prevent the Applicant from absconding.
[42] In support of the above position the Respondent also refers to the third ground in s. 515(10) of the Criminal Code, namely, that it would not maintain confidence in the administration of justice having regard to all the circumstances to grant bail pending the extradition hearing.
[43] I agree with the flight risk concerns noted by the Respondent. The conditions of release proposed by the Applicant are inadequate to discharge the onus that he has to demonstrate that he will not abscond. He has no connection to Canada other than the Abou-Chalha family that he has not seen for more than 30 years. His life is in Dubai. He has a wife and three children in Dubai. He has a business that he runs in Dubai. He has a charge with serious consequences awaiting him in Texas if he is extradited.
[44] While the Applicant testified that he wishes to clear his name and to respond to the charge, he initially proposed to post only a $10,000 bail deposit and later, upon questioning increased that amount to $100,000. The fact that the Applicant proposed the sum of $10,000 as a deposit causes me concern about his intentions given his means. The sum of $100,000 is still inadequate considering his means.
[45] However, I do not agree with the Respondent’s submission that there is no amount of money that could be paid on deposit by the Applicant to ensure that he complies with the conditions of bail. When asked by counsel whether he could post a deposit of CDN $500,000, the Applicant indicated that he would have to sell one of his properties. In my view, the risk that the Applicant will abscond and not attend court is eliminated if he is required to post a very significant deposit commensurate with his means and the circumstances such that it will, as a practical matter, compel him to attend. Anything short of that measure does not provide me with comfort that the Applicant will not abscond.
[46] Accordingly, having considered all the circumstances and the principles described above, I grant the Application on the terms proposed by the Applicant subject to one modification, namely, that the amount of CDN $1,000,000.00 be paid by the Applicant as a deposit with the Ontario Superior Court of Justice in advance of his release rather than CDN $10,000.00.
[47] Following the oral delivery of these reasons the parties agreed to the modify the terms of release as follows so that:
(a) The Applicant shall reside with surety Nabil Abou-Chalha and his parents Sabir Abou-Chala and Amal Abou-Chala at their home at 4733 Owl Circle, Mississauga, Ontario L4Z 2W5; (b) The Applicant shall remain in the bail residence at all times EXCEPT in the direct presence of Nabil Abou-Chalha, Jihad Abou-Chalha, Ziad Abou-Chalha, or their parents Sabir and Amal Abou-Chalha or for medical emergencies; (c) The Applicant shall remain in the province of Ontario; (d) The Applicant shall attend court as necessary at 361 University Avenue, Toronto, Ontario; (e) The Applicant shall surrender all travel documents including passports and residency cards, to Detective Constable Frigon of the Toronto Police Service and shall not apply for any travel documents; and (f) At the Applicant’s expense, the Applicant shall be subject to electronic monitoring by Recovery Science Corporation (“RSC”) according to the following conditions: a. Enter into RSC’s Participant Agreement and comply with its terms; b. Wear a GPS ankle bracelet at all times; c. Permit RSC to install supplementary equipment and to inspect, replace and maintain equipment as it deems necessary; d. Comply with RSC leave notification and battery charging requirements; e. Cooperate fully with RSC staff; (g) The Applicant shall deposit CDN $1,000,000 cash with the Superior Court of Justice prior to his release from custody; (h) The Applicant is not to possess any weapons or ammunition as defined by the Criminal Code; (i) The Applicant is to keep the peace and be of good behavior; (j) The Applicant is to keep a copy of the recognizance on the Applicant’s person at all times; (k) As surety Jihad Abou-Chalha shall pledge CDN $10,000 cash with the Superior Court of Justice prior to the Applicant’s release; (l) As surety Nabil Abou-Chalha shall pledge CDN $5,000 cash with the Superior Court of Justice prior to the Applicant’s release; (m) The Applicant is to not be within 250 metres of Toronto Pearson Airport or any other airport, train station or bus depot, except when travelling on TTC, GO Transit, Viva or other public transit with his sureties; (n) The Applicant is not to possess a cell phone; and (o) A copy of the surety cautions filed with the Court as Exhibit #2 and Exhibit #3 are to be signed by the named sureties and attached as Appendix “A” to the bail release document.
[48] Accordingly, I order that the Applicant’s application for bail be granted on the terms shown in the above paragraph.
FAIETA J.