Court File and Parties

COURT FILE NO.: CR-19-00000-117-00MO DATE: 20200227 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an Application pursuant to section 29 of the Extradition Act for an Order committing MOHAMED ABDI SIYAD for extradition

AND IN THE MATTER OF an Application for a stay of proceedings and a declaration pursuant to sub. 52(1) of the Constitutional Act

BETWEEN:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Respondent – and – MOHAMED ABDI SIYAD a.k.a. MOHAMED ABDI SIYAAD a.k.a. “HASSAN” Applicant

Counsel: Heather J. Graham, for the Attorney General of Canada Peter Kott, for Mohamed Abdi Siyaad

HEARD: February 14, 2020

Cavanagh J.

Reasons for judgment on abuse of process and charter APPLICATION

Introduction

1The Attorney General of Canada on behalf of the United States of America seeks the extradition of Mohamed Abdi Siyad a.k.a. Mohamed Abdi Siyaad a.k.a.“Hassan” for prosecution for his alleged role in a human smuggling scheme. I will refer to Mohamed Abdi Siyaad, the applicant on this application, as Mr. Siyaad.

2This is the second extradition request for Mr. Siyaad. The first request involved the same alleged conduct and proceeded to an extradition hearing on May 17, 2019 before Davies J. of this court. On May 24, 2019, Davies J. discharged Mr. Siyaad. Although Davies J. found that there was ample evidence to support a prima facie case of the offence alleged, she was not satisfied on a balance of probabilities that the person before the court was the person sought for extradition.

3Following Mr. Siyaad’s discharge, Canada received a second request for his extradition based on the same conduct as the first request and the Minister of Justice issued an Authority to Proceed under the Extradition Act, S.C. 1999, c. 18 (the “Act”). The extradition hearing on the second extradition application is also before me.

4Mr. Siyaad brings this application for an order staying the extradition proceedings against him on the ground that they constitute impermissible relitigation which is precluded by the common law doctrine of abuse of process or that bringing these proceedings is an abuse of process which infringes his right under s. 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) to a meaningful hearing. In the alternative, Mr. Siyaad seeks a declaration that s. 4 of the Act which provides that the discharge of a person does not preclude further proceedings (unless the judge is of the opinion that those proceedings would be an abuse of process) is unconstitutional and of no force or effect pursuant to s. 52 of the Constitution Act, 1982.

5For the following reasons, Mr. Siyaad’s application is dismissed.

Procedural History

6Mr. Siyaad is wanted by the United States for his alleged role in a scheme to smuggle people from Africa into the United States through South and Central America. On or around August 8, 2018, while he was in custody on immigration charges, Mr. Siyaad was arrested pursuant to an extradition request. An Authority to Proceed (“ATP”) was issued by the Minister Justice on October 17, 2018 and a Record of the Case (“ROC”) was certified by the requesting state on September 27, 2018.

7On May 17, 2019, Davies J. of the Ontario Superior Court of Justice conducted an extradition hearing on the request for Mr. Siyaad’s extradition. The evidence before her was summarized in the ROC dated September 27, 2018.

8In her Reasons for Decision released on May 24, 2019, Davies J. held that there is ample evidence to establish a prima facie case that the person sought committed acts that, if committed in Canada, would amount to an offence under s. 117(1) of the Immigration and Refugee Protection Act.

9Justice Davies considered the real issue to be whether there is evidence to establish, on a balance of probabilities, that the person before the Court is “Hassan”, the person sought by the United States. Justice Davies was not satisfied on a balance of probabilities that Mr. Siyaad, the person before her, is the person sought by the United States and ordered that he be discharged.

10On or around May 29, 2019, Mr. Siyaad was re-arrested in connection with the same allegations at issue in his prior extradition proceedings. An ATP was issued on August 28, 2019, and a new ROC was certified by the United States on July 17, 2019. The alleged conduct set out in the new ROC is the same as the alleged conduct in the first ROC. Additional information and evidence was provided. This additional information was available to the Crown and the United States when the first ROC was certified.

11On September 13, 2019, Mr. Siyaad’s extradition hearing was scheduled to be heard on November 21, 2019. On November 1, 2019, Mr. Siyaad requested an adjournment of the extradition hearing in order to prepare his application for a stay of the extradition proceedings. The request was granted on consent, and the hearing was adjourned to February 14, 2020.

Analysis

12Mr. Siaade’s position is that the second extradition proceeding is an impermissible attempt to relitigate the first extradition proceeding which was decided by Davies J. and, as such, it is an abuse of process at common law and an abuse of process which infringes his right under s. 7 of the Charter to a meaningful hearing.

13In support of these submissions, Mr. Siyaad relies in particular on two decisions of the Supreme Court of Canada. In Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 the Supreme Court of Canada addressed the doctrine of abuse of process in the context of relitigation of decided issues. In United States v. Ferras, 2006 SCC 33 the Supreme Court of Canada held that the basic requirements of justice in the extradition context require a meaningful judicial process which involves a fair and meaningful hearing.

14The Attorney General’s position is that the second extradition proceeding is expressly authorized by s. 4 of the Act, and there is no basis for me to conclude that this proceeding is an abuse of process. The Attorney General also submits that none of Mr. Siyaad’s rights under s. 7 of the Charter has been infringed by the second extradition hearing.

15The following issues are raised on this application:

a. Does the common law doctrine of abuse of process apply to preclude a second extradition hearing after Mr. Siyaad was discharged at the first extradition hearing? b. Is the conduct of the Crown and the United States in commencing the second application for extradition an abuse of process which deprives Mr. Siyaad of his right to a meaningful hearing and breaches his rights under s. 7 of the Charter? c. If the second application constitutes an abuse of process, should the extradition proceedings be stayed? d. Alternatively, is s. 4 of the Act inconsistent with s. 7 of the Charter, such that it is of no force or effect?

Does the common law doctrine of abuse of process apply to preclude a second extradition hearing after Mr. Siyaad was discharged at the first extradition hearing?

16Section 4 of the Act was enacted by S.C. 1999, c. 18 and provides:

Further proceedings

4 For greater certainty, the discharge of a person under this Act or an Act repealed by section 129 or 130 does not preclude further proceedings, whether or not they are based on the same conduct, with a view to extraditing the person under this Act unless the judge is of the opinion that those further proceedings would be an abuse of process.

17Before s. 4 of the Act came into force, the question of whether further extradition proceedings may be initiated following a discharge on an extradition hearing was addressed by the Supreme Court of Canada in Argentina [Republic] v. Mellino, [1987] 1 S.C.R. 536. In Mellino, the respondent was alleged to have killed his wife in Argentina. Extradition proceedings were brought in Canada and the respondent was arrested and held in custody. The respondent was set free when Argentina, the requesting state, failed to produce necessary documentation within two months of the arrest as required by the extradition treaty between Canada and Argentina. Seventeen months later, Argentina made a second request for extradition and the respondent was again arrested. The respondent made an application to have the proceedings stayed on two grounds, including that the seventeen month delay in the proceedings constituted an abuse of process and infringed the respondent’s rights under s. 7 of the Charter.

18La Forest J. writing for the majority, held at paras. 22-27 that assuming that an extradition judge has jurisdiction to deal with the issue of abuse of process and an alleged breach of s. 7 of the Charter, there was no abuse of process or contravention of s. 7 of the Charter. In reaching this conclusion, La Forest J. addressed the fact that this was a new proceeding and held:

Since a discharge at an extradition hearing for lack of evidence, like that at a preliminary hearing, is not final, it has long been recognized that new proceedings may be instituted on new, or even on the same evidence before the judge at the original hearing or another judge: see, for example, Attorney-General of Hong Kong v. Kwok-A-Sing (1873), L.R. 5 P.C. 179; Re Harsha (No. 2) (1906), 11 C.C.C. 62 (Ont. H.C.); Armstrong v. State of Wisconsin, [1972] F.C. 1228 (C.A.). This was recognized by the judge and the parties, who acted on that basis.

19In United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, the Supreme Court of Canada noted at para. 39 that Mellino was decided before the 1992 amendments to the Act, when the extradition judge had a narrow role to play and was subject to the supervisory authority of the superior court exercising habeas corpus jurisdiction. Before the 1992 amendments, the jurisdiction to protect against abuse of process rested with the habeas corpus judge, as the extradition judge had no jurisdiction at common law or under the Charter. With the 1992 amendments, the habeas corpus jurisdiction was consolidated with that of the committal judge, and authority to apply the doctrine of abuse of process on matters relevant to the committal stage vested in the committal court.

20More recently, in United States of America v. Viscomi, (2015), 2015 ONCA 484, 126 O.R. (3d) 427, the Court of Appeal for Ontario made an order setting aside a committal order in an extradition proceeding on the ground that the extradition judge had erred in concluding that there was sufficient evidence identifying the appellant as the perpetrator of the offences. Having made this ruling, Blair J.A., writing for the Court, addressed s. 4 of the Act:

Notwithstanding the foregoing disposition, however, the Crown may still decide to institute further proceedings, whether on new or the same evidence, provided the new proceedings would not constitute an abuse of process: Extradition Act, s. 4. That being the case, there is one issue raised in both the committal and surrender proceedings that warrants comment, in the event the matter should be pursued further. I refer to the effect of the Supreme Court of Canada’s decision in Spencer.

Blair J. A. went on to address the issue raised by the Spencer decision.

21In Viscomi, a new extradition proceeding was initiated, and a second extradition hearing was held. New evidence was filed to address the deficiencies in the record before the first extradition judge. The accused person challenged the new evidence on the ground that there was a violation of s. 8 of the Charter but he did not argue that the second extradition proceeding was an abuse of process at common law or an infringement of the person’s right to a meaningful hearing under s. 7 of the Charter. The s. 8 Charter challenge was dismissed and the application for a committal order was allowed. An appeal to the Court of Appeal from the order allowing the application was dismissed. See United States of America v. Viscomi, 2016 ONSC 5423, [2016] O.J. No. 4566; 2016 ONSC 6658, [2016] O.J. No. 5774; aff’d 2019 ONCA 490.

22Mr. Siyaad submits that the statement made by La Forest J. in Mellino should be read with caution because under the version of the Act which was in force at the time, a committal judge had a limited role in the extradition process and no authority to consider Charter issues. He also points to the language of s. 4 of the Act which expressly directs that the doctrine of abuse of process is to be considered when a person is discharged at an extradition hearing and a further extradition proceeding is initiated.

23Although Mellino was decided when the committal judge had no authority under the Act to consider the doctrine of abuse of process, this distinction does not detract from the general principle expressed by La Forest J. that the nature of a discharge at a committal hearing for lack of evidence is such that further proceedings may be instituted on the same or different evidence before the same or a different judge.

24With respect to Viscomi, Mr. Siyaad submits that this case is not authority for the propositions that a second extradition proceeding after a discharge on the first hearing is not an abuse of process at common law or an infringement of the accused person’s right to a meaningful hearing under s. 7 of the Charter because these questions were not raised by the person sought to be extradited, and the Court of Appeal was not called upon to decide them.

25In this context, I address the decision of the Supreme Court of Canada in C.U.P.E.

26In C.U.P.E., a municipal employee was convicted of sexual assault. The municipality fired this employee a few days after his conviction. The employee grieved his dismissal, and, at the grievance hearing, the employee testified that he did not sexually assault the complainant. The arbitrator held that the criminal conviction was presumptive evidence that the employee had sexually assaulted the complainant, but this presumption had been rebutted. The arbitrator held that the employee had been dismissed without cause. On appeal, the question was whether the employee should be precluded from relitigating his criminal conviction through the employment arbitration proceeding.

27Arbour J., writing for the majority, noted at para. 36 that the doctrine of abuse of process is used in a variety of legal contexts including in circumstances involving unfair or oppressive treatment of an accused person awaiting trial, when unreasonable delay causes serious prejudice, and when the Charter applies and the common law doctrine of abuse of process is subsumed in the principles of the Charter. Arbour J. held that when the Charter applies, the common law doctrine of abuse of process continues to have application as a non-Charter remedy, citing United States v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616, an extradition case.

28In C.U.P.E., Arbour J. analyzed the doctrine of abuse of process in the context of circumstances where a party seeks to relitigate issues that have already been judicially determined. Arbour J. considered the related doctrines of issue estoppel and the rule against collateral attack and observed at para. 37 that Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements for issue estoppel (typically, the requirement for privity/mutuality of the parties) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice. Arbour J. explained at para. 51 that in the context of relitigation, the doctrine of abuse of process concentrates on the integrity of the adjudicative process.

29In C.U.P.E., the doctrine of abuse of process was considered where the litigation before the court, the employment arbitration, was alleged to be, in essence, an attempt to relitigate a criminal conviction after a trial where the convicted person had exhausted all of his avenues of appeal. Arbour J. identified at para. 21 the question before the Court as “whether any doctrine precludes in this case the relitigation of the facts upon which the conviction rests” and held at para. 58 that the doctrine of abuse of process applied to bar relitigation of the grievor’s criminal conviction and, accordingly, the arbitrator was required as a matter of law to give full effect to the conviction.

30At an extradition hearing, the nature of the question before the judge is different than the one which was decided in the first proceeding in C.U.P.E., that is, whether the person before the court was guilty of a criminal offence. In Germany v. Schreiber, [2000] O.J. No. 2618 Watt J. (as he then was) explained at para. 57 that extradition is to be and remain an expedited process to ensure prompt compliance with Canada’s international obligations. Watt J. held that the extradition hearing is not a trial, and there is a difference in kind between an extradition hearing and the trial of a domestic criminal case.

31As explained by Arbour J. in United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532 at paras. 27, 28, 32 and 33, extradition is primarily a function of the executive branch of government and a product of international agreements between States. The extradition process in Canada is governed by the Act, which codifies into domestic law Canada’s international obligations to surrender fugitives who have committed crimes, or are alleged to have committed crimes, in other jurisdictions. The extradition process has two stages: committal and surrender. The first phase is judicial in nature while the second is essentially an executive phase. During the judicial hearing, the extradition judge determines whether there is sufficient evidence to order the fugitive committed for surrender. Two criteria must be met before a warrant of committal may issue: (1) the evidence presented must disclose a prima facie case that the conduct alleged to have occurred within the jurisdiction of the requesting state constitutes a crime there, would constitute a crime in Canada if committed here, and is contemplated in the bilateral treaty; and (2) the evidence tendered in support of the request for extradition must, on a balance of probabilities, establish that the person for whom extradition is sought is the person before the court.

32The nature of an extradition hearing, which is not a trial, and the nature of a discharge for insufficiency of evidence, which does not involve the adjudication of any facts, led La Forest J. to decide in Mellino that further extradition proceedings are not precluded by a discharge at an extradition hearing. Section 4 of the Act codifies this principle, unless the judge is of the opinion that those further proceedings would be an abuse of process. The Court of Appeal in Viscomi stated this principle in the decision on the first appeal: (2015), 2015 ONCA 484, 126 O.R. (3d) 427, at para. 43. In the decision in Viscomi on the appeal of the second committal order, the Court of Appeal expressly noted that the committal order on appeal was the “second committal order” and, nonetheless, it did not hold that the second extradition hearing was precluded by the doctrine of abuse of process by relitigation: 2019 ONCA 490.

33I am satisfied that the nature of the decision by Davies J. at the first extradition hearing is such that it is not an abuse of process at common law for the Crown and the United States to have initiated further extradition proceedings or to proceed to a second extradition hearing based on the same conduct as was before the court at the first extradition hearing.

34For these reasons, I conclude that the common law doctrine of abuse of process (in the context of relitigation as articulated in C.U.P.E.) does not operate to preclude the second extradition hearing before me.

Is the conduct of the Crown and the requesting state in commencing the second application for extradition an abuse of process which deprives Mr. Siyaad of his right to a meaningful hearing and breaches his rights under s. 7 of the Charter?

35Mr. Siyaad also submits that if the new extradition hearing is allowed to proceed, he will have been deprived of a meaningful judicial process at his first extradition hearing. He contends that the Crown’s conduct in these circumstances constitutes an abuse of process which is a breach of his rights under s. 7 of the Charter. Mr. Siyaad submits that a stay of proceedings is the proper remedy for this breach.

36In Ferras, McLachlin C.J.C., writing for the Court, held at paras. 19-23 that extradition law requires that the “basic demands of justice” be observed and that a person is not to be extradited without a fair process, having regard to the history, purposes and policies that underlie extradition. Under the extradition process, before a person can be extradited, there must be a judicial determination that the requesting state has established a prima facie case that the person sought committed the crime alleged and should stand trial for it. McLachlin C.J.C. explained that there must be a meaningful judicial process which involves three related requirements: a separate and independent judicial phase; an impartial judge or magistrate; and a fair and meaningful hearing. The independent judicial phase must provide real protection against extradition in the absence of an adequate case against the person sought.

37Section 25 of the Act provides:

For the purposes of the Constitution Act, 1982, a judge has, with respect to the functions that the judge is required to perform in applying this Act, the same competence that that judge possesses by virtue of being a superior court judge.

38In Kwok, the Supreme Court of Canada held that while an extradition judge does not have inherent jurisdiction to consider issues under the Charter, an extradition judge does have the statutory jurisdiction to deal with such issues pursuant to s. 25 of the Act, provided that the Charter issues “pertain directly to the circumscribed issues relevant at the committal stage of the extradition process”: Kwok at para. 57. The alleged Charter breach pertains to the circumscribed issues relevant to the committal stage of the extradition process and, therefore, I have statutory jurisdiction to deal with the issues raised.

39In R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, Moldaver J. noted at para. 31 that the Supreme Court of Canada has recognized that “there are rare occasions - the ‘clearest of cases’ - when a stay of proceedings for an abuse of process will be warranted”. Moldaver J. described two categories in which abuse of process cases generally fall: (1) where state conduct compromises the fairness of an accused’s trial (which he described as the “main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (which he described as the “residual” category).

40For cases in the first category, the concern is whether there will be ongoing prejudice and unfairness to the accused through the conduct of the trial. When the second category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency, and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the administration of justice. See Babos at paras. 34-35.

41Mr. Siyaad submits that the conduct of the Crown and the requesting state falls within the first category of abuse of process cases. He contends that this conduct threatens to prevent him from meaningfully resolving his case and, therefore, his right to a fair extradition hearing has been compromised. He contends that a judicial process whereby the Crown and the requesting state, following a discharge at an extradition hearing, are free to relitigate the same questions in front of another judge, relying on largely the same evidence, is not a meaningful one because the protections afforded by the process would be rendered illusory and meaningless. Mr. Siyaad submits that while he may receive a facially fair hearing at the second extradition hearing, he faces the prospect of a potentially endless succession of committal hearings because, even if he is discharged, there is no reason to expect that the Crown and the United States will not initiate further extradition proceedings.

42Mr. Siyaad submits that the conduct of the Crown and the requesting state also falls within the second category of abuse of process cases. He contends that this conduct evinces a profound disrespect for the Court because it actively seeks to undermine the judicial process by eliciting conflicting rulings on the same issue, thereby threatening to usurp the constitutional function of the judiciary and rendering it subservient to the executive branch. Mr. Siyaad argues that to allow the second extradition hearing to proceed would be an affront to the integrity of the judicial process and basic notions of fairness.

43I do not accept that the possibility that the Crown and the United States may decide to initiate further proceedings if Mr. Siyaad were to be discharged at the second extradition hearing is sufficient to show that a second hearing would be an abuse of process which compromises the fairness of the extradition hearing. Section 4 of the Act does not, absent abuse of process, preclude the Crown and the requesting state from initiating further extradition proceedings where a person is discharged under the Act. On each occasion when further proceedings are brought with a view to extraditing a person who has been discharged, the question would arise of whether those further proceedings would be an abuse of process in the relevant circumstances. In this case, the Crown initiated further extradition proceedings, after an initial discharge, based upon additional information and evidence which was not before Davies J. If, in another case, the Crown initiated extradition proceedings based on the same evidence after successive discharges, different considerations may apply.

44I am also not satisfied that the conduct of the Crown and the United States falls within the second category of abuse of process cases. As was observed by the Supreme Court of Canada in Mellino, it has long been recognized that the nature of an extradition hearing is such that a discharge because of insufficiency of evidence does not preclude further extradition proceedings, whether or not they are based on the same conduct. Section 4 of the Act codifies this principle provided the further proceedings would not be an abuse of process. In Viscomi, the Court of Appeal for Ontario restated this principle.

45In this case, the Crown is not proceeding on the same evidence (although the authorities do not necessarily preclude such a process). The Crown is not “judge shopping” by trying to have the second extradition hearing before a judge other than Davies J., who is not seized, in the hope of securing a different outcome on the same evidence. I am satisfied that Mr. Siyaad will receive a judicial determination of whether the case presented for extradition prescribed by s. 29(1) of the Act has been established in an independent judicial phase of the extradition process before an impartial judge and based on an assessment of the evidence and the law. This is a meaningful judicial determination according to Ferras, at para. 26.

46For these reasons, I am not satisfied that the conduct of the Crown and the requesting state in initiating further extradition proceedings after Mr. Siyaad was discharged by Davies J. constitutes an abuse of process which deprives Mr. Siyaad of a meaningful hearing in breach of his rights under s. 7 of the Charter.

47Because of this decision, I do not need to decide whether, if I had decided otherwise, the remedy of a stay of proceedings would be warranted.

Is s. 4 of the Act inconsistent with s. 7 of the Charter, such that it is of no force or effect?

48Mr. Siyaad submits, in the alternative, that if the pending proceedings are authorized by s. 4 of the Act and do not constitute an abuse of process, s. 4 of the Act deprives him of liberty and security of the person in a manner that fails to comply with the principles of fundamental justice. Mr. Siyaad submits that s. 4 of the Act is inconsistent with s. 7 of the Charter and of no force or effect under s. 52(1) of the Constitution Act, 1982.

49Mr. Siyaad submits that his liberty and security of the person are impaired by the possibility of him being forcibly removed to another country to stand trial and are further impaired by the elimination of any reasonable prospect of being permanently discharged at a committal hearing. He contends that s. 4 of the Act creates the prospect of a potentially endless succession of re-arrests and further proceedings based on the same conduct, and he is thereby effectively denied his right to a meaningful judicial process in accordance with the principles of fundamental justice.

50In Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 the Supreme Court of Canada explained the approach for a court to follow in order to determine whether a law interferes with life, liberty and security of the person and whether such law conforms to the principles of fundamental justice under s. 7 of the Charter. McLachlin C.J.C. held at paras. 19-22 that s. 7 of the Charter requires not a particular type of process, but a fair process having regard to the nature of the proceedings and the interests at stake. The procedures required to meet the demands of fundamental justice depend on the context. Societal interest may be taken into account in elucidating the applicable principles of fundamental justice. McLachlin C.J.C. explained that the question at the s. 7 stage is whether the principles of fundamental justice relevant to the case have been observed in substance, having regard to the context and the seriousness of the violation. The issue is whether the process is fundamentally unfair to the affected person. If so, the deprivation of life, liberty or security of the person simply does not conform to the requirements of s. 7. McLachlin C.J.C. explained that the inquiry then shifts to s. 1 of the Charter, at which point the government has an opportunity to establish that the flawed process is nevertheless justified having regard, notably, to the public interest.

51In Cobb, s. 7 of the Charter was considered in the context of an extradition hearing. The Supreme Court of Canada held at paras. 24, 32 and 34 that the committal judge must ensure that the extradition hearing is conducted in accordance with the principles of fundamental justice and that the committal order, if it is to issue, is the product of a fair judicial process.

52I am not satisfied that the extradition proceeding before me is unfair to Mr. Siyaad or that he is deprived of a meaningful judicial process in accordance with the principles of fundamental justice. Section 4 of the Act expressly provides that a further extradition proceeding following a discharge is not precluded “unless the judge is of the opinion that those further proceedings would be an abuse of process”. As I have noted, if in other circumstances a person became subject to repeated extradition proceedings based on the same conduct after successive discharges, it would be open to the judge on each occasion to consider whether the further proceeding is an abuse of process. Because of this protection built into s. 4, the extradition process is not fundamentally unfair to Mr. Siyaad.

53I conclude that s. 4 of the Act is not unconstitutional and of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982.

Disposition

54For the foregoing reasons, Mr. Siyaad’s application is dismissed.

Cavanagh J.