R. v. Amhaz

2001BCSC1562 Citation: HMTQ v. Amhaz Date: 20011018 2001 BCSC 1562 Docket: BL0249 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Reasons for Judgment Madam Justice Koenigsberg October 18, 2001 BETWEEN: HER MAJESTY THE QUEEN AND: ALI ADHAM AMHAZ Counsel for the Requesting State R. McMeans Counsel for the Accused D. St. Pierre Counsel for the Vancouver Sun K. Woodall BAN ON PUBLICATION s. 26 EXTRADITION ACT [1] THE COURT: This is an application for judicial interim release, which is sought by Mr. Amhaz pending a hearing, no date for which has been set, to determine whether he should be extradited to the United States of America. [2] Mr. Amhaz is wanted for prosecution in the United States. He was arrested on Saturday, October 13, 2001, on a provisional warrant of arrest issued under the Extradition Act. He is named in a U.S. indictment charging him with the offence of "conspiracy to provide foreign material support or resources to a designated foreign terrorist organization." That terrorist organization is said to be Hizballah. [3] It is alleged that from some time before February 24, 1999, and through to July 21, 2000, Mr. Amhaz conspired with three other named conspirators and others "to provide currency, financial services, training, false documentation and identification communications equipment, explosives and other physical assets to Hizballah in order to facilitate its violent attacks." [4] The Crown opposes this release and seeks Mr. Amhaz's detention pursuant to s. 515(10) of the Criminal Code on the first and third grounds set out therein. Section 19 of the amended Extradition Act provides that Part XVI of the Criminal Code, which encompasses s. 515, applies to this proceeding "with any modifications that the circumstances require." [5] It has been held in several cases, including the British Columbia Court of Appeal, that adherence to Canada's international obligations as triggered by extradition proceedings may require that a different and lesser standard may be applied in considering whether detention should be ordered; that is, in considering whether there is a risk of flight, the court should weigh the international obligations of Canada in matters of extradition as it is not only the Canadian system of justice which must absorb any such risk, which is the case with domestic matters, but the risk it is to our international obligations as well. [6] Section 515(10)(a) and (c) are the grounds relied upon by the Crown. These are sometimes referred to as the primary and tertiary grounds for detention. They read as follows: For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; and (c) on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution's case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment. [7] The Crown made the following submissions with regard to the risk of flight or the primary ground. The Crown says Mr. Amhaz is charged with an offence that is punishable by a maximum penalty of ten years in the United States. The Crown is advised that the co-accused, a Mr. Dbouk, has returned to Lebanon and therefore is beyond the reach of the U.S. authorities because there is no extradition treaty between Lebanon and the United States. [8] Mr. Amhaz is originally from Lebanon, is married to a Lebanese woman and has family members living in Lebanon. He holds a Lebanese passport and an expired Canadian passport. He has been shown in the course of this investigation to be able to obtain false identity documents. He must be regarded, says the Crown, as a flight risk. However, the Crown acknowledges that the court should also be aware that Mr. Amhaz has known of the existence of the indictment in the United States for many months and has not fled from Canada. [9] The defence submitted the following in relation to the lack of flight risk. Mr. Amhaz is a Canadian citizen. He has been living in Canada since 1986, and has been a citizen for ten years. He has tradesman skills in the plumbing field and is currently enrolled as a student at Vancouver College due to graduate in December with a certificate of competence in the field of computer electronics. [10] Mr. Amhaz is 35 years of age, has been married for ten years and has four children. His wife and children live in Canada. He has no criminal record. Mr. Amhaz has not only not attempted to flee Canada since learning of the indictment against him in the United States. He has not changed his address, he has lived at the same address for four years, he has not changed his phone number nor sought to evade the press. Perhaps most significantly, says the defence, he has been in regular contact and given interviews to members of CSIS and the FBI regarding, no doubt, information apparently gathered in investigations of his involvement with persons named as conspirators in this indictment. These contacts have been ongoing for around two years and they continue. [11] Mr. Amhaz has a Lebanese passport and his Canadian passport has expired. There is no evidence that he has or has attempted to obtain a false passport or any other travel documents. Most of his relatives still live in Lebanon, except, of course, for his wife and children. There is absolutely no evidence that but for the extradition proceedings against him that Mr. Amhaz poses a flight risk. [12] This is the context, in my view, which frames the test for the balance of risk of flight against Canada's international obligations in matters of extradition. The cases in which the risk of flight was found to be greater than that which is commensurate with Canada's international obligations included, for instance, The United States of America v. Ross (July 5, 1993), Van. Registry No. CA01711). In that case there were facts of flight from the requesting state on two occasions prior to trial in the requesting state and in circumstances in which committal for extradition had already been ordered and the release was sought pending appeal. [13] In The Government of India v. Singh (Jan. 5, 2001, Van. Registry No. CC001215), the detainee had entered Canada illegally and had a history of assuming different identities and changing residence seeking to evade detection that he was in fact in Canada or where he was. Further, Mr. Singh, in that case, alleged that he had reason to fear that if he did return to India it could mean a likelihood he would be killed for his political activity. In other words, there were real tangible factors indicating a risk of flight aside from the trial or sentence faced for conviction in the requesting state. [14] There are no such factors present here. Thus, in my view, the Crown fails on the primary ground. [15] On the tertiary ground, the Crown submits that the Court should consider the criteria set out in the case of R. v. McDougal (1999) 138 C.C.C. (3d) 38 at 46. Those criteria include: The apparent strength of the prosecution's case, the gravity and nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment. The Crown's position is set out in relation to each of these factors. In relation to the apparent strength of the prosecution's case, the Crown says that in assessing this the court should consider the strength of the case for committal for extradition, not the strength of the case at trial in the requesting state. [16] Although the requesting state has not yet provided its evidence in support of the extradition request, it has represented to the Canadian government that the evidence in support of the said offence consists of electronic surveillance of Mr. Amhaz, Mr. Dbouk and others, physical surveillance, a witness statement and recovered stolen property and false identity documents. [17] I note before elaborating these submissions that one of the problems that the court faces in assessing the apparent strength of the prosecution case is that there is no actual evidence before the court. There is no affidavit evidence of any sort. The court is told that these are very early days in putting together any case for extradition and no affidavit evidence is available as to what evidence for extradition will be available. Nevertheless, representations have been made to this court concerning the evidence available in the U.S. and are to be considered by this court on such a hearing. [18] I will deal with the Crown's submissions one by one with the categories of evidence, which the Crown says will be utilized in the extradition hearing. First is electronic surveillance. That evidence, says the Crown, includes more than 80 operational reports of CSIS interceptions in Canada establishing the conspiracy which is alleged, the procurement activity of Hizballah and its members and the role of Mr. Amhaz in acquiring the equipment. Other electronic surveillance lawfully obtained in the United States has established the ongoing relationship among the alleged conspirators. [19] In this regard, I am advised by the defence and must consider that relative to any assessment of the strength of the prosecution case that rests upon the CSIS tapes, that those tapes may have been destroyed and thus, pursuant to s-s. 29(1)(a) and 33(3)(a) of the Extradition Act, the evidence from these intercepts may not be admissible as the tapes themselves will not be available at trial. [20] I am cognisant that on an extradition hearing, much less on a bail hearing, the judge is not to weigh any evidence or assess the credibility of any evidence to determine if extradition is likely, but the court is to determine whether there is admissible evidence on an extradition hearing. [21] In relation to physical surveillance, the Crown says that there will be evidence that in August of 1999, a co-conspirator by the name of Harb travelled from Charlotte, North Carolina, to Vancouver and that Mr. Harb's movements were surveilled by the FBI. Mr. Amhaz was observed picking up Mr. Harb and a co-operating witness at the Sea Tac airport and driving them to Canada. Surveillance of these men in Canada established that Mr Amhaz, Harb and the co-operating witness, Behl, received fraudulent credit cards and false Canadian identification documents. [22] There are witness statements, says the Crown. At least there is one, a Mr. Behl, a co-operating witness has told U.S. investigators that he and Harb travelled to Vancouver for the purpose of obtaining fraudulent credit cards and identification documents for use in the purchase of goods, including computers and photographic equipment. Behl states that Mr. Amhaz was their contact in Vancouver and confirmed that the fraudulent credit cards were used by all three men and others, to purchase the items. The defence notes that Mr. Amhaz vehemently denies that he has ever used a fraudulent credit card. [23] The fourth category of information, which the Crown says will be available, is recovered stolen property and false identity documents. Search warrants were issued in North Carolina in July of 2000, resulting in the discovery of some of the fraudulent credit cards and false identification documents. Two laptop computers purchased in British Columbia were also recovered. Behl reports that many other items were purchased by the conspirators that were not taken to Charlotte, but remained in Vancouver. [24] With regard to the balance of the factors, the Crown submits, in considering the gravity and nature of the offence, the alleged conduct of providing material to a group such as Hizballah to allow it to carry out its acts of violence is a most serious and grave matter. In my view, there can be no question about that. [25] With regard to the circumstances surrounding the commission of the offence, those have just been outlined. And there is a potential for a lengthy term of imprisonment, that is, the maximum term of imprisonment for this charge in the United States is ten years, which at least by Canadian standards is a lengthy term of imprisonment. [26] The defence points out two significant weaknesses in the apparent strength of the prosecution's case. First, the actual offence in the indictment, which is alleged, is not a crime in Canada. The specific items which it is alleged were purchased by Mr. Amhaz are not illegal substances nor is their possession or sale illegal. The Crown has indicated that the prosecution need only show that the conduct alleged, if committed in Canada, would be a crime, the label attached to the crime is not the issue, says the Crown. [27] The Crown says the gravamen of the offence in the United States as charged includes conspiracy to commit murder and other crimes known and criminally sanctioned in Canada relating to membership in or participation in criminal organizations, that is, as set out in s. 467.1 of the Criminal Code. [28] The court cannot comment further on the likelihood of linking Mr. Amhaz to any of the allegations which may emerge from the crime alleged or charged in the indictment, but suffice it to say that it would appear the defence has raised two non-frivolous issues as to the extradictability of Mr. Amhaz on the basis of the indictment as it stands. [29] The Crown submits that there is legislation in bill form in Canada which may cure this problem, if it is a problem. Further, says the Crown, the court should understand that there is authority that the amendment to the Extradition Act, particularly the enactment of s. 29(3) provides a change in the law as previously pronounced by the Supreme Court of Canada, U.S.A. v. Allard and Charette, [1991] 1 S.C.R. 861. The law as pronounced in that case, was that a person can only be extradicted if the crime with which he is charged was a crime recognized in Canada as a crime at the time it was committed. [30] In The United States of America v. Ronald Cook, (April 3, 2001, Van. Registry No. CC001135) a recent decision of this court, the court agrees with an Ontario decision in U.S.A. v. Quintin, 45 W.C.B. (2d) 433 in which Mr. Justice Dambrot said this at para. 107 of that decision: Well, on the face of s. 29(1), there would appear to be no reason why Allard would not continue to prevail. Regard must be had to s. 29(3). It provides that the date of the authority to proceed is the relevant date for the purposes of s-s. (1). While this provision is perhaps not as clear as one might wish, the only meaning that I can ascribe to it is that when the extradition judge considers whether committal would be justified in Canada he or she should look to the Canadian law as it existed at the date of the authority to proceed and not at the date of the alleged offence. [31] In my view, even if that decision is correct, I must consider that there is no Canadian law comparable to that relied on in the United States indictment and no evidence before this court that the bill referred to will be law at the date of the authority to proceed. [32] Finally, I have alluded to the second non-frivolous issue as to the potential for significant evidence relied upon by the Crown in this hearing, in support of the apparent strength of the case for the prosecution to be found inadmissible because such evidence will not be available at trial. I note that that evidence is evidence which is, in fact, the evidence in support of Mr. Amhaz's involvement in the conspiracy which is alleged in the United States. I am satisfied that there are significant issues raised casting doubt on the apparent strength of the prosecution case. [33] I add, I in no way wish to be understood to be weighing or assessing evidence; I have none before me to weigh or assess in this exercise. However, the Crown has the burden of showing that there is apparent strength in the prosecution case; it relies on no evidence, but rather representations of American representatives of what evidence they have or may have to present to the extradition judge. [34] The defence has raised, as I said, non-frivolous issues. I cannot weigh the strength of those either, but they are not frivolous with regard to the apparent strength of the prosecution case and I must consider them. In my view, the court must also consider the presumption of innocence and the general care any court in Canada must exercise when deciding whether to deprive a Canadian citizen of his liberty before he has been convicted of a crime, or even had a hearing, or, in this case, before he has been found liable to be committed for extradition, especially when there has been no time set for such a hearing. [35] This court is cognisant that Canada is considering strengthening the powers of government and courts to limit further the freedoms and rights of Canadians in the face of a real and tangible threat from terrorist acts. The allegations here encompass acts of terrorism of the type which constitute that real and tangible threat, but the court is also aware that fundamental principles of the Canadian justice system are at play in the principles to be applied in determining whether Mr. Amhaz should be detained before his hearing. [36] In this case, on these submissions, I am not satisfied that the Crown has met its burden to establish the tertiary ground. It is my view that detention is not necessary to maintain public confidence in the administration of justice having regard to all the circumstances which I have just outlined. In fact, in the face of no real evidence of a risk of flight, an alternative means available to deal with any slight or inferential risk from the gravity of the crime faced, together with the problems which may be faced by the prosecution in obtaining an order for extradition, at least as it appears at this time, it is my view that it could undermine confidence in the administration of justice if detention were ordered in such circumstances. [37] Conditions of release, however, in light of Canada's international obligations in matters of extradition should be stringent and go beyond the provision of a surety. I will entertain submissions with regard to what those conditions should be, but I do tell both counsel that, in my view, they should be stringent. "M.M. Koenigsberg, J." The Honourable Madam Justice M.M. Koenigsberg