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 Applicant – and – MOHAMED ABDI SIYAD a.k.a. MOHAMED ABDI SIYAAD a.k.a. “HASSAN” Respondent

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 extradition application

Overview

[1] The Attorney General of Canada on behalf of the United States of America seeks the extradition of the respondent Mohamed Abdi Siyad a.k.a. Mohamed Abdi Siyaad a.k.a.“Hassan” for prosecution in the United States. I will refer to the respondent as Mr. Siyaad.

[2] This 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.

[3] Following 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 (“ATP”) under the Extradition Act, S.C. 1999, c. 18 (the “Act”). The extradition hearing before me is pursuant to this ATP.

[4] Mr. Siyaad brought an application which was heard on the same day as this extradition hearing. In his application, Mr. Siyaad requested an order staying proceedings against him or, in the alternative, an order declaring that s. 4 of the Act is unconstitutional and of no force or effect. In a separate decision released with this decision, I dismissed Mr. Siyaad’s application.

[5] For the following reasons, I am satisfied that (i) there is evidence admissible under the Act of conduct that, had it occurred in Canada, would justify committal of the person sought by the United States for prosecution for trial in Canada on the offence set out in the ATP, and (ii) the person before the court, Mr. Siyaad, is the person sought for prosecution by the United States. I make an order of committal pursuant to s. 29(1)(a) of the Act.

Procedural background

[6] Mr. Siyaad is wanted by the United States of America 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 ATP was issued by the Minister Justice on October 17, 2018 and a Record of the Case (“ROC”) was certified by the United States of America on September 27, 2018.

[7] On May 17, 2019, Davies J. conducted an extradition hearing on the requesting state’s request for Mr. Siyaad’s extradition. The evidence before her was summarized in the ROC dated September 27, 2018.

[8] In 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.

[9] Justice 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 the person sought by the requesting state. Justice Davies was not satisfied on a balance of probabilities that Mr. Siyaad, the person before her, is the person sought by the requesting state and ordered that he be discharged.

[10] On or around May 29, 2019, Mr. Siyaad was re-arrested in connection with the same allegations at issue in his prior extradition proceedings. A new ROC was certified by the United States of America on July 17, 2019. An ATP was issued by the Minister of Justice on August 28, 2019. On October 24, 2019 a Supplemental Record of the Case was certified correcting an error in the ROC with respect to the date on which the photograph at Exhibit 1 was taken.

Analysis

[11] The extradition hearing before me was held pursuant to the ATP dated August 28, 2019 by which the Minister of Justice authorized the Attorney General of Canada to proceed before the Superior Court of Justice to seek an order for the committal of Mr. Siyaad who is being sought for prosecution by the United States of America.

Legal Framework

[12] Section 29(1)(a) of the Act provides:

A judge shall order the committal of the person into custody to await surrender if

(a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner;

[13] At this phase of the extradition proceedings, the extradition judge is to determine two things: (1) whether “there is evidence admissible under this Act of conduct that, had it occurred in Canada would justify committal for trial in Canada on the offence set out in the authority to proceed”; and (2) “that the person [before the court] is the person sought by the extradition partner”. Committal is ordered if the judge finds that these conditions exist; if not, the person must be discharged. This means that the requesting state must show that it has evidence available for trial that would justify committal for trial in Canada for the Canadian offences specified in the ATP. See M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at para. 22.

[14] The reference to evidence that “would justify committal for trial in Canada” in section 29(1)(a) of the Act incorporates the test that a justice conducting a preliminary inquiry must apply when deciding whether to commit an accused for trial in Canada. This is also the test that applies to whether a trial judge should order a directed verdict of acquittal at the end of the Crown’s case. The incorporation of the test for committal to trial is meant to make the extradition process efficient, permitting prompt compliance with Canada’s international obligations, while also ensuring that there is at least a prima facie case against the person of a Canadian crime. See M.M., at paras. 37-38.

Is there evidence admissible under the Act of conduct that, had it occurred in Canada, would justify committal of the person sought by the United States for trial in Canada on the offence set out in the ATP?

[15] The Canadian offence which corresponds to the alleged conduct, as stated in the ATP, is organizing entry into Canada, contrary to section 117(1) of the Immigration and Refugee Protection Act (the “IRPA”). Section 117(1) of the IRPA provides:

No person shall organize, induce, aid or abet the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be in contravention of this Act.

[16] The actus reus of this offence requires proof that the accused undertook acts to organize, induce, aid or abet the coming into Canada of one or more persons in contravention of the IRPA. The term “organize” contemplates initiating, making arrangements for, or enlisting a person or a group. The term “induce” involves influencing another to act. The term “aid” involves assisting or helping to perform a particular act. The term “abet” connotes instigating, promoting, or procuring the commission of a particular act. See R. v. Abdulle, [2014] O.J. No. 6177, at para. 25.

[17] The mens rea of this offence is cast in broad terms and requires that the acts be undertaken with either knowledge or recklessness that the prohibited activities are in contravention of the IRPA.

[18] Section 32 of the Act sets out the types of evidence admissible at the extradition hearing. This evidence includes the contents of documents contained in the record of the case certified by a judicial or prosecuting authority of the extradition partner under s. 33(3). Under s. 34 of the Act, a document contained in the record of the case and any supplements that have been properly certified is admissible, whether or not it is solemnly affirmed or under oath.

[19] The ROC contains summaries of the anticipated testimony of five persons described as “Aliens 1-5” who are available to testify at a trial in the United States. Each witness is anticipated to testify that he paid a fee to be smuggled from Africa into the United States and, upon his arrival from Africa, he met a person in Sao Paolo, Brazil who would assist him to gain entry to the United States. Four of these persons are expected to testify that this person was known to him as “Hassan”. According to the ROC, the expected testimony of “Alien 5” will not include a statement that the person who met him at the airport upon his arrival in Sao Paolo was named “Hassan”.

[20] The ROC, as amended, states that a Special Agent, Homeland Security Investigations, is expected to produce official business records and explain that the person sought by the United States and identified as “SIYAD” entered the United States on August 11, 2013 at a port of entry in California and applied for entry. This person had been photographed and fingerprinted by US Customs and Border Protection (“CBP”) on August 13, 2013. This photograph and the fingerprints are attached to the ROC as Exhibit 1 and Exhibit 2, respectively.

[21] The ROC states that each of the five witnesses is expected to testify that the person depicted in Exhibit 1 is the same person he met with in Sao Paolo, Brazil, known to four of them as “Hassan”. I will refer to this person as “Hassan”.

[22] The five witnesses are expected to testify that they paid fees to various smugglers within the network that the person known as “Hassan” operated in order to be smuggled into the United States. These persons are expected to provide information regarding the organization of the human smuggling network, including the role of “Hassan” within that organization, how he personally assisted them en route to being smuggled into the United States, and the manner in which the network operated, with the participation of “Hassan”.

[23] Mr. Siyaad does not take a position on whether the evidence in the ROC is sufficient to support a prima facie case of human smuggling contrary to s. 117 of the IRPA against the person with whom each of the five “aliens” is expected to testify he met in Sao Paolo, Brazil and who was known to four of them as “Hassan”.

[24] I am satisfied that there is evidence admissible under the Act which is more than sufficient to justify committal for trial in Canada of the person known as “Hassan” on the offence under s. 117 of the IRPA. According to the ROC, “Hassan” received a fee from one of the witnesses. He arranged accommodation for some of them. “Hassan” took a photograph of two witnesses to be sent to other smugglers who would show the photograph to the witness to demonstrate that they worked with “Hassan”. According to the expected evidence of one witness, “Hassan” was in contact with him via Facebook and there was an exchange on Facebook where “Hassan” told him not to enter the United States in California and, instead, he should go to Texas. This is prima facie evidence of the actus reus of the offence under s. 117(1) of the IRPA.

[25] The expected testimony of these witnesses describing their interactions with “Hassan” including payment by one of the witnesses of a fee to him, his taking of photographs of two of them to use in the smuggling operation, his advice via Facebook of border crossing locations, and his discussions with some of these witnesses about the operation is sufficient to raise a reasonable inference that this person, “Hassan”, knew that the acts undertaken would be in contravention of laws prohibiting human smuggling or that he was reckless in this regard. This is prima facie evidence of the mens rea of the offence under s. 117(1) of the IRPA.

[26] Mr. Siyaad submits that the identification evidence in the ROC is insufficient to show a prima facie case that the person sought by the United States for prosecution is the person known as “Hassan” who committed the acts alleged and, therefore, there is not sufficient evidence of conduct that, had it occurred in Canada, would justify committal of this person for trial in Canada of the offence under s. 117(1) of the IRPA.

[27] In USA v. Danielson (Asiegbu) (2008), 2008 BCCA 519, 243 C.C.C. (3d) 88 (B.C.C.A.), the British Columbia Court of Appeal explained at para. 21 that there are two parts to the identification issue under section 29(1)(a) of the Act regarding a person sought for prosecution, each with a different burden of proof:

On a plain reading of s. 29 of the Extradition Act, there are two issues of identification in an extradition proceeding: one, is the person named in the RoC the person who committed the alleged conduct; two, is the person named in the RoC the person before the court? As noted, the extradition judge expressed these issues at para. 3 as follows:

... There [are] two aspects of the identity issue. They are:

1. that there be prima facie evidence that the person sought is the person who committed the acts alleged; and
2. that there be evidence proving on the balance of probabilities that the person before the court is the person sought by the requesting state.

[...] The lower threshold of a prima facie case derives from the fact the requesting state must establish a case on which a jury reasonably instructed might convict. Although this may require the extradition judge to undertake a limited weighing of the evidence, there is no determination of the merits [citation omitted].

[28] According to the ROC, each of the five witnesses is expected to testify that the person depicted in the photograph at Exhibit 1 is the person he met with in Sao Paolo, Brazil known as “Hassan” or, in the case of the witness identified as “Alien 5”, the other smuggler he met with in Sao Paolo. The ROC also includes the following statement: “When the aliens in this investigation were interviewed, a copy of the photograph taken by CPB on August 13, 2014 (Exhibit 1), was used in the photo lineup shown to the aliens when each was interviewed. When asked whether they saw the person they knew as “HASSAN” in the lineup, the aliens that identified “HASSAN” selected the CBP photograph as the person that they knew as “HASSAN”.

[29] In support of his submission that the evidence in the ROC is not sufficient to make out a prima facie case that the person sought by the United States is the person who committed the criminal conduct in respect of which committal is sought, Mr. Siyaad relies upon R. v. Hay, 2013 SCC 61. In Hay, The Supreme Court of Canada addressed the issue of whether the trial judge erred by instructing the jury that it could convict the accused based on eyewitness evidence alone. Rothstein J., writing for the majority, accepted that the credibility and weight that should be given to eyewitness testimony is an issue for the ultimate trier of fact, and that a trial judge has a duty to caution the jury regarding the frailties of identification evidence. Rothstein J. noted that a properly instructed jury may conclude, notwithstanding the frailties of eyewitness identification, that the eyewitness’ testimony is reliable and may enter a conviction on those grounds, even where the Crown has relied on only a single eyewitness. Rothstein J. cautioned, however, that the jury should not be permitted to convict on the basis of eyewitness testimony alone that could not support an inference of guilt beyond a reasonable doubt. See Hay, at paras. 40-41.

[30] Mr. Siyaad also relies on R. v. Kumi, 2017 ONSC 5508 in support of this submission. In Kumi, an order had been made committing the applicant for trial and an application was brought to quash the committal order. The only issue was whether, absent the principal eyewitness’ identification of the applicant, there was sufficient evidence to commit the applicant for trial. Goodman J. addressed the frailties in the eyewitness evidence in that case and held that this was not a case of frail identification, but one where identification does not meet the threshold requirements of positive identification. Goodman J. regarded the identification evidence in the circumstances to be “so problematic as to be virtually worthless”. The order for committal was quashed.

[31] Mr. Siyaad also relies on the decision of the British Columbia Court of Appeal in United States v. Walker, 2008 BCCA 55. In Walker, the appellant appealed from an order committing him into custody to await extradition to the United States for trial on a charge of murder. The case for the prosecution depended on the identification of the appellant by a single eyewitness. The appellant argued that the Record of the Case presented by the respondent does not provide enough information concerning the eyewitness identification to enable an extradition judge to perform an assessment of the sufficiency of the evidence for committal.

[32] In Walker, Donald J.A., writing for the panel, cited the decision of the Supreme Court of Canada in United States v. Ferras, 2006 SCC 33, at para. 54, as authority for the proposition that at an extradition hearing, the judge is to screen evidence so as to avoid dangerous or unsafe verdicts. Donald J.A. held that extradition judges should give high risk eyewitness identification a “very hard look”. Donald J.A. determined that there were deficiencies in the Record of the Case arising from unanswered questions concerning the evidence in it such that it could not be determined whether the eyewitness identification is dangerous or unsafe. As a result, Donald J.A. held that the requesting state had not met its burden, the committal order was set aside, and the appellant was discharged.

[33] Mr. Siyaad submits, relying on these authorities, including Ferras, that some inquiry into the threshold reliability of the evidence in the ROC is required as part of the assessment of whether the Crown has shown a prima facie case that the person sought by the requesting state is the person who committed the acts alleged. Mr. Siyaad submits that when this inquiry is undertaken, the identification evidence is not sufficient to show a prima facie case that the person sought for prosecution is the person who committed the acts alleged.

[34] Mr. Siyaad submits that the photograph marked as Exhibit 1 to the ROC is grainy and appear to be distorted. Mr. Siyaad points to the fact that witnesses 3-5 (identified as “Aliens” 3, 4, and 5) met with the person alleged to have been involved in human smuggling only for about one day. He also notes that the ROC does not include the photographs which were shown to the witnesses when they were interviewed in what is described as a “photo lineup”. No details are provided in the ROC about how many photographs were included in the lineup or the order in which the witnesses were shown the photograph marked as Exhibit 1 and other photographs in the lineup. It is not known whether the witnesses were provided with a description of the person known as “Hassan” before they were asked to identify him. Mr. Siyaad points out that the photograph marked as Exhibit 1 was taken on August 13, 2013 and the witnesses met with the person known as “Hassan” in 2016. Mr. Siyaad submits that the frailties of the identification evidence make it unreliable and that it would be dangerous and unsafe for me to act on it.

[35] In Walker, Donald J.A. noted at para. 20 that Canadian courts treat eyewitness identification with suspicion, especially when, as in that case, the witness and the accused were not previously known to each other, their encounter was brief, and the circumstances were traumatic for the witness. In Walker, the single eyewitness accompanied the murder victim and was a person at whom the appellant allegedly also shot a gun. The eyewitness picked out the appellant as the shooter from a six-person photo montage and identified him when shown a single photo.

[36] In this case, the identification evidence is different. The evidence is from five persons and, in respect of two of these witnesses, the evidence is based on several contacts with the person known as “Hassan” on several separate occasions. The first witness, “Alien 1”, is expected to testify that he was taken by the person known as “Hassan” to a hotel where he stayed for approximately 3-4 months. During this period, he had several conversations with “Hassan” discussing when he would be smuggled to the United States. After 3-4 months, he had a physical argument with “Hassan” and, after this argument, he went to the U.S. Consulate to report “Hassan” as a smuggler. The second witness, “Alien 2”, is expected to testify that after his arrival in Sao Paolo, “Hassan” accompanied him and other persons on a train to another area of Sao Paolo. This witness then saw “Hassan” two more times before “Hassan” sent the group by bus to another city in Brazil. Each of the witnesses identified as “Alien 3”, “Alien 4”, and “Alien 5”, is expected to testify that he met with the person depicted in Exhibit 1 when he arrived in Sao Paolo.

[37] The role of the extradition judge in applying the test under the Act differs from the preliminary inquiry context in that the extradition judge, unlike the preliminary inquiry justice, must engage in a limited weighing of the evidence to determine whether there is a plausible case. After Ferras, there continues to be a high threshold for refusing committal on the basis that the supporting evidence is unreliable. It is only where the evidence is so defective or appears so unreliable that the judge concludes it would be dangerous or unsafe to act upon it that the extradition judge is justified in refusing committal on this basis. This ensures that the extradition process does not deprive the person sought of the independent hearing and evaluation required by the principles of fundamental justice applicable to extradition. It remains the case that an extradition hearing is not a trial and it should never be permitted to become one. See M.M., at paras. 39-40 and 63-64.

[38] I have engaged in a limited weighing of the evidence in the ROC to determine whether there is a plausible case for committal. My starting point is that the certified evidence is presumptively reliable: M.M., at para. 72.

[39] Although the photograph at Exhibit 1 appears to have enlarged pixels which contributes to some lack of clarity, I am not satisfied that the photograph is of such poor quality that it would be dangerous or unsafe to rely on the expected identification evidence of the witnesses based on it.

[40] The identification evidence in this case is not limited to a single eyewitness who saw a previously unknown person, under traumatic conditions for the witness, and in a brief encounter, as in Walker. The witnesses identified as “Alien 1” and “Alien 2” had several contacts on several separate occasions with the person known as “Hassan”. The identification evidence of each of the other three witnesses is based on time spent meeting with “Hassan” when the witness arrived in Sao Paolo Brazil. The identification was from a “photo lineup”, even though the number and order of the photographs was not specified in the ROC. I am not satisfied that the expected identification evidence from the five witnesses, particularly witnesses identified as “Alien 1” and “Alien 2”, is so defective or appears so unreliable that it would be dangerous or unsafe to convict based on this evidence.

[41] The expected identification evidence of “Alien 1” and “Alien 2”, by itself or combined with the expected identification evidence of “Aliens” 3, 4, and 5, is prima facie evidence that the person sought by the requesting state is the person who committed the acts alleged.

[42] I am satisfied that there is evidence admissible under the Act of conduct that, had it occurred in Canada, would justify committal of the person sought by the requesting state and named in the ROC as “Mohamed Abdi SIYAD, also known as (“aka”) Mohamed Abdi SIYAAD, aka HASSAN” for trial in Canada on the offence under s. 117(1) of the IRPA.

Is there evidence sufficient to satisfy me on a balance of probabilities that Mr. Siyaad is the person sought by the requesting state?

[43] The second requirement which must be satisfied under s. 29(1)(a) of the Act for an order for committal to be made at an extradition hearing is that the extradition judge must be satisfied that the person before the court is the person sought for prosecution by the extradition partner. The requesting state is required to establish identity on the balance of probabilities: Philippines (Republic) v. Pacificador, [1993] OJ No. 1753 (C.A.), at para. 8.

[44] The ROC, as corrected by the Supplemental ROC, includes a statement that a Special Agent, Homeland Security Investigations, is expected to produce official business records and explain:

a. On August 11, 2013, the person identified as “SIYAD” entered the United States at the San Ysidro port of entry in Otay Mesa, California, and applied for entry. At the time that he entered, “SIYAD” provided the name “Mohamed Abdi Siyaad” and claimed to have been born in Kebri Dahar, Ethiopia, in 1989. In a subsequent interview with CBP, with Ethiopian interpreters present, “SIYAD” claimed that he was from Somalia. b. On January 31, 2014, “SIYAD” was ordered to be removed from the United States. On August 13, 2014, “SIYAD” said he would not comply with the removal; however, he was removed and sent back to Ethiopia on September 9, 2014. c. “SIYAD” had been photographed and fingerprinted by CBP on August 13, 2013. Copies of those items were and are maintained in his U.S. Immigration and Customs Enforcement Alien File, an official file, as a business record. This photograph and the fingerprints are attached to the ROC as Exhibit 1 and Exhibit 2, respectively. d. Copies of the August 13, 2013 photograph and fingerprints taken by CBP were included in the first request for provisional arrest that the United States submitted to Canada on August 8, 2018. On August 10, 2018, a person identified in the ROC as “HASSAN” was arrested in Canada pursuant to that request. At the time of this arrest, this person was in the custody of Canada Border Services Agency (“CBSA”) in relation to pending immigration proceedings. e. According to Canadian law enforcement authorities, when CBSA detained this person - after he entered Canada using the name “Mohamed Abdi Siyaad” - they took his fingerprints. CBSA subsequently made those fingerprints available to the Toronto Police Service (“TPS”) and TPS eventually shared the prints with the FBI. The CBSA print card associated with “HASSAN” is attached to the ROC as Exhibit 3. When the TPS arrested “HASSAN” on August 10, 2018 pursuant to the United States’ provisional-arrest request, TPS took custody of “HASSAN” directly from CBSA. f. An FBI fingerprint analyst can testify that FBI conducted an analysis comparing the two aforementioned print cards taken in the U.S. by CBP, and in Canada by CBSA. The analysis determined that the fingerprints on both cards belong to the same person.

[45] Section 37 of the Act specifies two types of evidence upon which the requesting state may rely to establish that the person before the court is the person sought for extradition. Section 37 provides:

The following are evidence that the person before the court is the person referred to in the order of arrest, the document that records the conviction or any other document that is presented to support the request:

(a) the fact that the name of the person before the court is similar to the name that is in the documents submitted by the extradition partner; and (b) the fact that the physical characteristics of the person before the court are similar to those evidenced in a photograph, fingerprint or other description of the person.

[46] The person sought by the United States is depicted in the photograph attached to the ROC as Exhibit 1 and his fingerprints are attached as Exhibit 2. Based upon the evidence that an FBI analysis has determined that the fingerprints of the person sought by the United States match the fingerprints of the person before the court, Mr. Siyaad, I am satisfied on a balance of probabilities that the person before the court is the person sought for extradition by the United States. I note that the fingerprint evidence was not included in the record of the case which was before Davies J. at the first extradition hearing.

[47] It is not necessary for me to consider other evidence upon which the Crown relies for identification for this purpose, that is, a comparison of Mr. Siyaad’s appearance in court with the photograph at Exhibit 1 or the fact that Mr. Siyaad’s name is the same as the name of the person sought by the United States.

Disposition

[48] Accordingly, I order the committal of the respondent, Mohamed Abdi Siyaad, into custody to await surrender pursuant to s. 29 of the Act.

[49] I hereby inform Mr. Siyaad pursuant to s. 38(2) of the Act that he will not be surrendered until after the expiry of 30 days and that Mr. Siyaad has a right to appeal my order committing him to await surrender and to apply for judicial interim release.

Cavanagh J.

Released: February 27, 2020