Friday, 29 August 2014

Should the Canadian alleged terrorist to be extradited to the United States?  

Faruq Khalil Muhammad ‘Isa also known as Khalil Muhammad ‘Isa, Sayfildin Tahir Sharif and Tahir Sharif Sayfildin. In this piece, I shall refer to him as Sharif. He is an ethnic Kurd who was born in Iraq but moved to Toronto as a refugee in 1993. Four years later, he became a nationalized Canadian citizen and later he moved to Edmonton, Alberta.
By a diplomatic note dated March 17, 2011, the United States requested his extradition to the U.S. so that he can stand trial at the United States District Court for the Eastern District of New York on charges of conspiracy to murder Americans abroad and providing material support to a terrorist act. An amended diplomatic note from the United States dated January 30, 2012 restated these charges but added five counts of aiding and abetting the murder of US nationals abroad. To be more specific, the Americans allege that Sharif is accused of murder and supporting a terrorist group that took part in a suicide bombing in his native Iraq. Five U.S. soldiers were killed when a truck filled with explosives was detonated at a military checkpoint that was outside a U.S. base in 2009. To be more specific about the charges, the Americans allege that evidence from intercepted Internet and phone conversations shows that Sharif was directly involved in supporting Tunisian terrorists and more specifically, while living in Edmonton, he helped a Tunisian man enter Iraq in 2009 so that the Tunisian terrorist could detonate the truck filled with explosives.  Since both charges are also recognized as offences in Canada, the request for his extradition was considered valid by the Canadian authorities.

What I don’t know is whether or not he came to Canada as a sleeper terrorist or became a home-grown terrorist while living in Canada. Nevertheless, at the request of the American authorities, he was arrested by the Royal Canadian Mounted Police (RCMP) at an Edmonton apartment where he lived with his girlfriend and her children in 2011. He has been in custody ever since his arrest.
In my opinion, this man can be viewed as a terrorist if he really offered some form of assistance to the Tunisian terrorist who was the suicide bomber that killed the five U.S. soldiers. That is the American’s allegation so for this reason, he should be extradited to the U.S. to face those charges. 

The matter finally ended up before three members of the Alberta Court of Appeal. His defence lawyers had argued before that court that the RCMP didn't allow Sharif access to a lawyer or interpreter the day of his arrest, and transcripts of police interviews show he didn't understand what was going on. That may be academic if the Canadian courts were satisfied that the telephone and Internet communications with a terrorist organization included Sharif as a participant in the discussions.

If his allegation is true, then anything he said to the police while in their custody can’t be used against him. That law is applicable in both Canada and the United States.

Further, his lawyers also said that allegations against their client came from three people including his brother who claimed that they were tortured by investigators in Iraq. That’s definitely a no no. I was present in 1975 at the UN headquarters in Geneva during the discussions about the illegality of the torture of suspects. The Americans and Canada along with the majority of delegates agreed that torture of suspects should be classed as being illegal. Its illegality was later was affirmed by the UN General Assembly. If the brother was tortured, then anything he said is not admissible in a courtroom. That law is also applicable in both Canada and the United States.
The court agreed with the defence lawyers that the extradition judge should not have outright rejected the torture allegations by Sharif's brother. The court also said that the judge should have asked Canada’s attorney general to disclose evidence about the brother's interrogation or alternatively, strike the evidence from the deportation proceedings.
Previously, on October 19, 2012, the extradition judge ordered Sharif’s committal into custody to await extradition on the offences listed in the Authority to Proceed. This followed the judge’s dismissal of Sharif’s application for further disclosure of information about, inter alia, (amongst other things) whether any of the witnesses were tortured before providing their statements; and a  voir dire (preliminary hearing) into the admissibility under sections 7, 10(b) and 24(2) of the Charter of Rights and Freedoms of statements made by Sharif to the RCMP and to Investigator Mazzella (with US Justice Department investigators in Mosul) during his post-arrest interviews, which the Crown (prosecutor) had applied to have included in the record of the case. His statements he made to these people formed part of the record at Sharif’s committal hearing.
The record reproduced Sharif’s communications with so-called fighters and other “facilitators” by email and recorded telephone conversations. The Attorney General argued that these communications showed Sharif assisted members of the terrorist facilitation network, attempted to persuade several unidentified individuals as well as members of his family to join the network, took steps to send money to the network and offered to conduct attacks on behalf of the network.

The record of the case also referred to: (1) statements allegedly made by an individual identified as “Fighter 1” in the course of interviews (or “debriefings”) with US Justice Department investigators in Mosul; (2) statements allegedly made by Sharif during an interview with US Justice Department Investigator, John Mazzella, following Sharif’s arrest in Edmonton on January 19, 2011; and (3) Mazzella’s own evidence regarding materials obtained from computer searches and regarding code words and terminology used by the network members in the recorded communications in which Sharif was a participant.
On October 19, 2012, the extradition judge ordered Sharif’s committal into custody to await extradition on the offences listed in the Authority to Proceed. This followed the judge’s dismissal of Sharif’s application for further disclosure of information about, inter alia, whether any of the witnesses were tortured before providing those statements; and a voir dire into the admissibility under sections 7, 10(b) and 24(2) of the Charter of Rights and Freedoms of statements made by Sharif to the RCMP and to Investigator Mazzella during his post-arrest interviews, which the Crown had applied to have included in the record of the case. I will describe 24 (2) later in this piece.
Subsequently, on June 25, 2013, the Minister of Justice ordered Sharif’s surrender to the United States. Hey! Don’t leave yet. This case gets more interesting as you read on.
Sharif appealed and the matter ended up before the Alberta Court of Appeal in which the three justices (judges) had to decide on five important issues raised by Sharif’s lawyer in his appeal. They had to decide the following;
(1) if there was any air of reality to the allegation that information in Iraq had been obtained through the use of torture; failing to exclude evidence derived from torture; and failing to apply section 269.1(4) of the Criminal Code, which makes inadmissible any statement obtained by the use of torture;
(2) whether or not Sharif’s statements were voluntary under section 7 of the Charter; (right to liberty etc.)

(3) if Sharif’s rights under section 10(b) of the Charter were breached or not; (right to retain counsel etc.)

(4)  whether or not to admit into evidence the DVD recording of Sharif’s statement to US authorities to show that the record of the case contained unreliable statements; and

(5)  whether or not that Sharif had facilitated terrorist activity and was involved in a conspiracy to kill US soldiers.

Evidence of torture

With respect to the issue of torture the court had this to say;

“It is beyond debate that torture-derived evidence may not be used in legal proceedings and cannot be relied upon by a state seeking extradition or being asked to extradite. Article 15 of the Convention against Torture – to which both Canada and France are signatories  makes this clear. It provides that parties are obliged “to ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

“The extradition judge was therefore obliged to consider, as he did, whether there was an “air of reality” to the allegations of torture of Facilitator 3 justifying further disclosure of the circumstances under which he was interviewed. Judicial statements in the past is what is required to show an “air of reality” to allegations of torture that have tended to state a low standard of proof. There must be “some evidentiary foundation to the allegations”.

This makes sense. To require more than a realistic possibility, based upon some evidentiary foundation to the allegations, that the allegations can be substantiated if further disclosure is made would be to set the bar for further disclosure at a level which will nearly always exceed the capacity of the person sought to meet.

Prohibitions against admitting such evidence will be undermined if the rules for admission set the bar for further disclosure at a level that is generally beyond the abilities of the person sought to meet. In our respectful view, the extradition judge erred in finding no air of reality to the allegation that Facilitator 3 was tortured and that the information obtained from him which appears in the record of the case was derived from torture.
The extradition judge in our view set the standard for establishing an air of reality to the allegations of torture too high. He said that the allegation was based on “speculative and hearsay evidence from ill-defined sources that the brother of the person sought was tortured in Iraq, and that either Americans or Iraqis sympathetic to American interests were behind the torture.

“Evidence adduced to support a disclosure request will always be “speculative” in the sense that it does not prove that the alleged event occurred. That very inability to prove the event without disclosure is, after all, precisely why our law provides a mechanism for obtaining further disclosure.

“We are satisfied that, in these circumstances, to require more than what the appellant provided here would impose an unrealistic evidentiary burden upon him, with the result that for him and for others similarly situated, it would render hollow the remedial mechanism of obtaining further disclosure where an “air of reality” is made out.

“Simply put, when a party alleges that evidence in a proceeding was obtained as the result of torture, the presiding judge must consider whether there is an air of reality to the allegation. The centrality or necessity of the impugned evidence is irrelevant to the nexus between that evidence and the practice of torture. The point is that the air of reality test is triggered, without exception, by the requesting state having elected to include in the record of the case evidence which the person sought alleges is the product of torture.

“It follows that the extradition judge ought to have done one of two things: (1) order the Attorney General to make disclosure of all materials in his possession related to the circumstances of Facilitator 3’s original arrest in January 2011 and resulting captivity, and the circumstances of Facilitator 3’s interview with Investigator Mazzella in April 2011; or (2) ask the Attorney General whether he would proceed to the committal hearing with the information in the record of the case obtained from Facilitator 3 during his interview with Investigator Mazzella struck (and, if so, then dismiss the disclosure request on the basis that it was no longer relevant).

“Having carefully reviewed the record of the case, we are satisfied that, even if the information obtained during Investigator Mazzella’s interview of Facilitator 3 had been removed, what remained would have justified the order committing the appellant (Sharif) on the charges of conspiracy to murder and facilitating terrorist activity. The information obtained from that interview constituted [only] a minute part of the information contained in the record of the case.” unquote

That is an important point that can’t be ignored.  It is not unlike ten people in the immediate area of a crime being committed and nine of them say they didn’t see the perpetrator shoot the victim and one of them says that the perpetrator shot the victim. The court would weigh the probabilities and conclude that there is a greater chance that the nine witnesses are more correct in what they saw than just one out of the ten witnesses at the scene of the crime.

Were Sharif’s statements voluntary?

 Section 29(1)(a) of the Charter conditions an order of committal upon “evidence admissible under this section, and section 32(2) of the Charter provides that evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted as evidence against the defendant.
For this reason, the voluntariness of statements relied upon by the requesting state (United States) in the record of the case must, where it is raised as an issue, be considered by the extradition judge. In this particular case, the appellant says that the extradition judge erred in finding that his statements to the RCMP and to Investigator Mazzella were voluntary, in light of what he says was his inability to understand his right to silence, the repeated denial by authorities of his right to counsel, the atmosphere of oppression created by authorities in the course of those interviews, and what he characterizes as the unconscionable trickery of members of the RCMP. If what he says is true, then anything he said to the police and the American  investigator could not be used as evidence in a court hearing.

The court said in response to the allegation;

 “It is clear from our review of the record that the appellant was aware throughout of his right to silence, and that it signified that he did not have to talk to police. He knew this from the time his rights were explained to him upon arrest: ‘I should keep quiet, like not to talk anything, you know. And whatever I say can be maybe against me.’

“We agree with the extradition judge that the RCMP reminded the appellant on multiple occasions thereafter of his right to silence. While the appellant occasionally maintained to the RCMP that he did not understand (what they were saying to him), having reviewed the transcript and the DVD recording of the interviews, we also share the extradition judge’s conclusion that the appellant’s professed inability to understand was in reference not to the substance of his rights, but to why the police were bothering him. As the extradition judge put it, his confusion did not relate to his legal rights but was either sincere bewilderment, or contrived bewilderment, at how he, as a Canadian living in Edmonton could be a suspect in terrorist activity in another country.”

This doesn’t mean that he didn’t understand the instructions of the RCMP that he had the right to remain silent with respect to the questions being put to him.

The concern of the members of the appeal court was whether or not the police breached the appellant’s rights under section 10(b) of the Charter by denying his requests to consult a lawyer after his initial legal consultation which occurred prior to his interview by RCMP. 

This means that he had a conversation with a lawyer prior to the extensive interview (questioning) of the RCMP. That being so; surely he was advised by that lawyer about Sharif’s rights to refuse not to answer questions put to him by the police. 

Sharif’s accusation that the RCMP undermined the voluntariness of his statements by holding out the possibility that he could consult with a lawyer after his initial legal consultation, if he continued to talk to RCMP members. The extradition judge found as a fact that RCMP members made no such promises. The review of the evidence satisfied the members of the appeal court that the extradition judge was not clearly and palpably wrong to make that finding.

I should point out it is a rare occurrence when an appeal court will overturn a particular finding by a lower court if the appeal court is satisfied that the hearing was conducted properly especially when the judge in the lower court has the opportunity to assess the demeanor of the witnesses and the defendant—an advantage that the members of the appeal court don’t have.

The members of the appeal court said;

“Similarly, we find no palpable and overriding error in the extradition judge’s conclusion that the interviews of the appellant by the RCMP and Detective Mazzella created no ‘atmosphere of oppression’. Indeed, our review of the evidence satisfies us that the appellant was reasonably accommodated with breaks, and maintained throughout an even composure. While he professed to be afraid, it is obvious from the context of the interviews that his fear was not generated by the interviews or the interviewers, but by his realization of the information they had about him.” 
Of course, the suggestion that Sharif was in fear when he realized that the RCMP had information about him is speculation on the part of the members of the appeal court.
The court ruled that Sharif’s statements were made voluntarily.
Right to Counsel
Sharif raised several objections which fall generally under his right to counsel by stating that he did not understand his rights; that he did not have a proper opportunity to consult with legal counsel; and that, even if the initial consultation was sufficient, his interview by Investigator Mazzella triggered a right to a second consultation with counsel.

The court responded by saying;

 As to the appellant’s first submission (that he did not understand his rights), we note that there is no submission that the RCMP failed to properly convey the required information, such that they could not assume that the appellant understood it. There is, however, one aspect of the limits to his rights which the appellant appears not to have understood, which is that he does not have the right under Canadian law to have a lawyer present during his interview (although the record shows that Corporal Ross told him clearly some hours into the interview that he did not have that right). We do not, however, see this misunderstanding on the appellant’s part to be consequential. Sinclair makes clear that demands for a lawyer, in the absence of a change in circumstances after there has been an initial consultation, are insufficient to give rise to a right to further consultation with legal counsel. Here, as the extradition judge observed, the appellant had the benefit of a lengthy consultation running over 45 minutes (and interrupted only by Corporal Ross taking a few minutes to speak directly with the lawyer) with an experienced criminal defence lawyer who spoke the appellant’s first language, and who had been briefed by the RCMP as to the nature of his jeopardy in Canada and in the United States. Not only did the RCMP have no objectively evident cause for concern that the appellant did not understand his rights, but the appellant went so far at several points in his interview by RCMP members to make clear to them that he understood his right to silence. There was therefore no reason for the RCMP to take further steps to facilitate the appellant’s understanding of his rights.” unquote

I should point out to my readers that as a general rule, many lawyers don’t wish to be present during the questioning by the police because they could be called to testify against their clients if they say something different in court than what they said during the questioning session. It could place them in a position of being in a conflict of interest and as such, the judge would adjourn the case until the defendants retain the services of other lawyers to defend them.

In the United States and in Canada and other commonwealth countries, accused persons have the right to refuse to answer questions put to them by the police other than disclose their names and place of residences. It is important for accused persons to disclose their names and residences if they hope to be released on bail.

Should DVD of Sharif’s statements be used as evidence?

Sharif challenged the committal order on the basis that the extradition judge refused his application to allow the DVD recording of his statement to Investigator Mazzella be heard in the extradition proceedings. The appellant’s purpose in having that recording admitted appears  to have been to support his submission that his statement was obtained in breach of his rights under US law (and specifically under Miranda v Arizona, ) and that, as a consequence, the reliability of the record of the case is undermined.

Sharif didn’t say how the record of the case was undermined, although the point is presumably that it is compromised inasmuch as what he told Investigator Mazzella would be inadmissible under US law at his trial. Generally, if a suspect is questioned by the police un the U.S. and not given the Miranda warning before he makes a statement, what he then says to the police cannot be used as evidence against him in court.

The court of appeal said;

“In our view, the accuracy of the requesting state’s certification as to compliance with US law is not a relevant issue at an extradition hearing [in Canada]. Further, the extradition judge, like this Court, lacks the institutional competence to determine whether the appellant’s statement to Investigator Mazzella is admissible as a matter of US constitutional law.” unquote

Canada has a similar law as the Miranda law however whether or not the questioning by the investigator was done before Sharif was Mirandized by the American investigator would only be considered by the appeal court if the statement was being used against him.

The appeal court said;

“That question, and its implications for that portion (or other portions) of the record of the case are better considered and decided by the US District Court. It follows that the extradition judge did not err in refusing to admit this evidence.”  unquote

And finally, whether or not there was sufficient evidence that Sharif was a terrorist is rather moot considering that the Americans had intercepted conversations between Sharif and terrorists on both the phone and the Internet.  That is surely sufficient grounds to have him extradited to the United States for trial.

It is obvious to me and it certainly was to Sharif that if he is convicted of facilitating the actions of terrorists, he will be sentenced to prison for the rest of his life.  He decided to reach for the last straw in hopes that it will keep him afloat.  His position was that he might receive a sentence of life imprisonment without parole if he is convicted of any of the US offences and as such, it would be oppressive and unreasonable.

One thing you can say about the Americans—they don`t dilly dally about when it comes to sentencing convicted criminals. One man in the United States killed three people and he was sentenced to 500 years for each of the murders and the sentences were to be served consecutively.  He appealed on the grounds that the sentence was ridiculous. The court of appeal agreed with his reasoning that the sentence was ridiculous. They then increased the sentence to 1,000 years for each of the murders and the sentences were still to be served consecutively.

For a convicted terrorist (if he is convicted of terrorism) to complain that he might have to serve the remainder of his life in prison will garner about as much sympathy from the general public that a dog will get when it purposely wanders into a flea convention.

 The test for whether or not the surrender of Sharif to the Americans offends section 7 of the Charter (prohibits cruel and unusual punishment) on account of the penalty which might be imposed in the requesting state—is whether the imposition of that penalty will actually sufficiently shock the Canadian conscience.  I am a Canadian and as such, I for one would only be shocked if he was sentenced to a lesser punishment.

The Eighth Amendment of the United Sates Constitution (passed by Congress in 1791) prohibits cruel and unusual punishments.  You could hardly say that imprisonment for natural life is cruel and unusual. 

Unless Sharif’s lawyer appeals to the Supreme Court of Canada, he will be on his way to the United States to face what is rhetorically referred to as the music.  That old favorite song comes to mind. Don`t fence me in.

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