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.
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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