United States of America v. Sriskandarajah

United States of America v. Sriskandarajah Collection Decisions of the Court of Appeal Date 2010-12-17 Neutral citation 2010 ONCA 857 Docket numbers C50140, C51419 Judges Doherty, David H.; Moldaver, Michael James; Cronk, Eleanore Ann Subject Criminal Decision Content CITATION: United States of America v. Sriskandarajah, 2010 ONCA 857 DATE: 20101217 DOCKET: C50140/C51419 COURT OF APPEAL FOR ONTARIO Doherty, Moldaver and Cronk JJ.A. BETWEEN The United States of America and Minister of Justice and Attorney General of Canada Respondents and Suresh Sriskandarajah Appellant/Applicant John Norris and Brydie Bethell, for the appellant/applicant Nancy Dennison and Sean Gaudet, for the respondents Heard: September 20, 2010 On appeal from the committal order of Justice Laurence A. Pattillo of the Superior Court of Justice, dated March 5, 2008, with reasons reported at (2009), 95 O.R. (3d) 514, and on application for judicial review of the decision of the Minister of Justice, dated November 17, 2009, ordering the applicant’s surrender to the United States of America. By the Court: I. Background [1] Suresh Sriskandarajah is wanted in the United States to stand trial on terrorism charges for his alleged assistance of the Liberation Tigers of the Tamil Eelam (the “LTTE”), for the purpose of enhancing the LTTE’s ability to engage in terrorism. In particular, Sriskandarajah is alleged to have acquired aviation equipment, submarine and warship design software and other communications equipment for members of the LTTE. Sriskandarajah is also said to have laundered money for the LTTE and to have counselled individuals on methods of smuggling goods to the LTTE in Sri Lanka. [2] On November 20, 2006, the Minister of Justice issued an Authority to Proceed under s. 15 of the Extradition Act, S.C. 1999, c. 18 (the “Act”) to seek a committal order against Sriskandarajah. On October 9, 2007, a replacement Authority to Proceed was issued, in which the following Canadian criminal offences were listed as corresponding to the alleged criminal conduct for which Sriskandarajah’s committal into custody for extradition to the United States is sought: (1) participating in the activity of a terrorist group, contrary to s. 83.18 of the Criminal Code, R.S.C. 1985, c. C-46; (2) providing, making available, etc. property or services for terrorist purposes, contrary to s. 83.03 of the Criminal Code; and (3) instructing to carry out activity for a terrorist group, contrary to s. 83.21 of the Criminal Code. [3] By order of Pattillo J. of the Superior Court of Justice dated March 5, 2008, Sriskandarajah was committed into custody for extradition. On November 17, 2009, the Minister of Justice ordered his surrender to the United States. Sriskandarajah appeals against the committal order and also applies for judicial review of the Minister’s surrender order. [4] Sriskandarajah’s extradition hearing was held together with that of Piratheepan Nadarajah, who is also wanted in the United States to stand trial for unrelated alleged terrorist activity involving the LTTE. Like Sriskandarajah, Nadarajah was committed into custody for extradition and subsequently ordered surrendered to the United States by the Minister of Justice. This court heard Nadarajah’s appeal from his committal order and his application for judicial review of the Minister’s surrender order together with this appeal and judicial review application. Our reasons for decision in Nadarajah’s proceedings are being released concurrently with these reasons. II. Issues [5] At their extradition hearings, both Sriskandarajah and Nadarajah attacked the constitutionality of certain provisions of Canada’s anti-terrorism laws. In particular, they argued that the statutory definition of “terrorist activity” set out in s. 83.01(1)(b) of the Criminal Code, and its operation throughout the terrorism provisions of the Criminal Code, including, in particular, s. 83.18, violated their rights under ss. 2(b), 2(d) and 7 of the Charter of Rights and Freedoms and should be declared unconstitutional. [6] Before this court, Sriskandarajah joined with Nadarajah in renewing their ss. 2(b) and 7 Charter arguments. Neither party pursued the s. 2(d) Charter argument. Counsel for Nadarajah carried the constitutional arguments in this court. We address the merits of those arguments in our reasons in Nadarajah, released concurrently. [7] Sriskandarajah also argues that his committal order cannot be supported by the evidence and, hence, that it is unreasonable. He submits, in particular, that there was no evidence before the extradition judge that he knew that any of his dealings were with LTTE members, that he intended his activities to benefit the LTTE, or that he acted for the purpose of enhancing the LTTE’s ability to facilitate or carry out terrorist activity. Sriskandarajah maintains that, as there was no evidence to support essential elements of the Canadian offences set out in the Authority to Proceed, his committal order was unreasonable and should be set aside. [8] Finally, in support of his judicial review application, Sriskandarajah contends that in making his surrender order, the Minister of Justice denied him procedural fairness, failed to consider several relevant factors, and failed to take account of the submissions and materials placed before him. [9] We would not give effect to these arguments. For the reasons that follow, we conclude that Sriskandarajah’s appeal and judicial review application must be dismissed. III. Discussion (1) Constitutional Challenge [10] For the reasons given in Nadarajah, the constitutional arguments fail. (2) Reasonableness of Committal Order [11] The extradition judge’s reasons for committal reveal that he properly directed himself on the applicable test for committal, set out under s. 29(1)(a) of the Act and discussed in United States of America v. Ferras, [2006] 2 S.C.R. 77; United States of America v. Thomlison (2007), 84 O.R. (3d) 161 (C.A.), leave to appeal refused, [2007] S.C.C.A. No. 179; United States of America v. Anderson (2007), 85 O.R. (3d) 380 (C.A.), leave to appeal refused, [2007] S.C.C.A. No. 159. As the extradition judge indicated, that test is met “if there is some evidence, that is available for trial and not manifestly unreliable, on every essential element of the parallel Canadian crime, upon which a jury properly instructed, could convict”: Thomlison, at para. 47. [12] The evidence before the extradition judge in this case was contained in original and supplemental records of the case certified as being available for trial and sufficient under the laws of the United States to justify prosecution against Sriskandarajah by the responsible prosecuting authority in New York State in accordance with s. 33 of the Act and Article 10(2) of the Treaty on Extradition between the Government of Canada and the Government of the United States of America, 3 December 1971, Can. T.S. 1976 No. 3, as amended by 11 January 1988, Can. T.S. 1991 No. 37 (the “Treaty”). The same records of the case were used in support of the committal request involving Nadarajah and in separate proceedings involving Ramanan Mylvaganam: United States of America v. Mylvaganam (2009), 254 O.A.C. 1. [13] The extradition judge reviewed the evidence against Sriskandarajah in detail. It included the following: (1) Sriskandarajah displayed pictures of LTTE-controlled territory in Sri Lanka on his personal website, including a picture of a large communications tower with satellite dishes; (2) an email in Sriskandarajah’s email account included a logo for an organization called “NTAB” that consisted of the LTTE “tiger” symbol and satellite dishes; (3) in a September 2004 email from Sriskandarajah to Tha-varjah Pratheepan, a senior LTTE arms and technology procurement agent, and an individual called “Elil”, Sriskandarajah stated that he was ready to buy equip-ment and parts for communication towers on receipt of further information; (4) in a March 2005 email, Sriskandarajah provided Pra-theepan with the name of a contact who worked on air traffic radars at a large military contracting company; (5) also in March 2005, Sriskandarajah and two others, allegedly acting on behalf of an LTTE leader, transferred $13,150 in LTTE funds through bank accounts in the United States to a travel agent to pay the costs for two individuals to travel to LTTE controlled territory in Sri Lanka; (6) in October 2005, Sriskandarajah directed three students to smuggle various property and equipment, including computer and GPS items, past Sri Lankan officials into Tamil territory. He provided the students with detailed instructions on how to deceive Sri Lankan customs officials to carry out the directed smuggling. Sriskandarajah’s directions to the students included instructions to advise LTTE territory check-point personnel that, “Waterloo Suresh sent you and you need to see Elil”. Sriskandarajah also told the students, “I need to know you arrived safely and more importantly all the things got there safely”; (7) some months later, in March 2006, Sriskandarajah directed Ramanan Mylvaganam on how to obtain information regarding the purchase of submarine and warship design software, valued at approximately $22,000, from a company in the United Kingdom. He also provided Mylvaganam with false information and a false purchase order to furnish to the vendor to effect the purchase. Sriskandarajah also arranged for payment of the software purchase price; (8) again acting with Mylvaganam, Sriskandarajah attempted to purchase night-vision equipment from a company in British Columbia; (9) in April 2006, Mylvaganam forwarded various com-munications devices to Sriskandarajah, valued in excess of $22,000, that had been purchased from a company in California; and (10) Sriskandarajah instructed Mylvaganam to wire transfer over $5,000 to two smouldering equipment distributor companies in Singapore and Mylvaganam did so. [14] Sriskandarajah admitted, and the extradition judge was satisfied, that he was the person named in the request for extradition by the United States. The issue, therefore, was whether, on assessment by the extradition judge, the evidence in the records of the case was sufficient to justify a committal order against Sriskandarajah on the Canadian offences identified in the Authority to Proceed. [15] The extradition judge concluded that the test for committal had been satisfied. He held at para. 105 of his reasons: There is some evidence [Sriskandarajah] assisted Mr. Pratheepan, a senior procurement officer for the LTTE, in respect of the purchase of communications equipment. There is some evidence that he was involved with an individual in the United States in the purchase or attempted purchase of submarine and warship design software, communications equipment and other technology. There was some evidence that Mr. Sriskandarajah was involved in smuggling equip-ment to the LTTE in Sri Lanka. There is also some evidence that he was involved in the laundering of money through bank accounts in the United States to enable two individuals to travel to LTTE controlled territory in Sri Lanka. [16] With respect to the LTTE itself, there was evidence in the records of the case that an expert was expected to testify at Sriskandarajah’s trial about the background, structure, leadership, methods of operation and activities of the LTTE, including suicide bombings and political assassinations carried out by the LTTE. This evidence, if accepted, could establish that the LTTE is a terrorist group. [17] Sriskandarajah asserts, as he did before the extradition judge, that the evidence of an unnamed expert cannot be relied upon as reliable evidence of the LTTE’s status as a terrorist group. However, he concedes on appeal that the Canadian government’s listing of the LTTE as a terrorist group pursuant to s. 83.05 of the Criminal Code as of April 8, 2006, prior to the date of the Authority to Proceed, suffices to establish that the LTTE is a terrorist group, an essential element of the Canadian offences alleged against Sriskan-darajah. [18] Based on his review of the evidence in the records of the case, the extradition judge concluded that there was some evidence in respect of each essential element of the offences under ss. 83.18, 83.03 and 83.21 of the Criminal Code alleged against Sriskandarajah upon which a properly instructed jury could convict. We see no reversible error in this conclusion. On the contrary, in our view, it was amply supported by the evidence before the extradition judge. [19] On appeal, Sriskandarajah renews his argument that the evidence in the records of the case fell short of establishing that he knew of the LTTE or that his activities were carried out with the intention of benefiting the LTTE and for the purpose of enhancing the LTTE’s ability to facilitate or carry out a terrorist activity. Essentially, he asserts that there was no evidence before the extradition judge of the requisite mens rea for the offences listed in the Authority to Proceed. [20] The extradition judge considered and rejected Sriskandarajah’s assertion that these and other alleged evidentiary shortcomings compelled the refusal of a committal order. He reasoned as follows at para. 109: While individually each of the identified pieces of evidence may not connect Mr. Sriskandarajah to the LTTE or indicate his knowledge of it, when the evidence against him is viewed as a whole, there is certainly some evidence in my view from which a jury properly instructed could make that finding. We agree. [21] The evidence against Sriskandarajah, while mostly circumstantial, was extensive. The extradition judge correctly assessed that evidence as a whole. In light of the contents of the records of the case, in part described in paragraphs 13 and 16 above, the extradition judge was fully justified in concluding that there was some evidence which, if accepted, could lead a properly instructed jury to conclude that Sriskandarajah knew of the LTTE and that he knowingly contributed to LTTE activities with the intention that his activities benefit the LTTE and for the purpose of enhancing the LTTE’s ability to facilitate or carry out terrorist activity. We agree with the Crown’s submission that the inferences drawn by the extradition judge regarding the mens rea of the alleged s. 83.18 offence (participating in or contributing to any activity of a terrorist group) were reasonable and supported by the evidence. [22] We reach a similar conclusion regarding the evidence pertaining to the remaining Canadian offences set out in the Authority to Proceed. Simply put, we agree with the extradition judge that there was some evidence in the records of the case which, if accepted, could lead a properly instructed jury to conclude that Sriskandarajah acted contrary to ss. 83.03 (providing, making available etc., property or services for terrorist purposes) and 83.21 (instructing to carry out any activity for a terrorist group) of the Criminal Code in relation to and in support of the LTTE. This included evidence of Sriskandarajah’s collection and provision of, or making available, various types of property for the use or benefit of the LTTE, his instructions to Mylvaganam in March of 2006 to obtain submarine and warship design software, and his directions to students in October 2005 on methods to successfully smuggle equipment into LTTE controlled territory in Sri Lanka. [23] There is, therefore, no basis on which to interfere with the extradition judge’s committal order. (3) Attack on Surrender Decision [24] We also reject Sriskandarajah’s attack on the Minister’s surrender decision. [25] Sriskandarajah’s complaint that he was denied procedural fairness at the surrender stage of the extradition process rests on his contention that the Minister was obliged to disclose the assessment of the Canadian prosecuting authorities concerning the feasibility of prosecution in Canada, conducted in accordance with United States of America v. Cotroni, [1989] 1 S.C.R. 1469. Nadarajah advanced an identical argument on his judicial review application. This contention is flawed. [26] In his reasons in support of his surrender order, the Minister confirmed that: (1) he had provided Sriskandarajah with all non-privileged materials that he considered in making his surrender decision, including a copy of the document containing the conclusion of the Canadian prosecuting authorities on their Cotroni inquiry; (2) he had not been furnished with a copy of the Cotroni assessment itself; and (3) he conducted his own independent analysis of the Cotroni factors, having regard to all the materials before him, the results of which were set out in his reasons. In all these circumstances, the non-disclosure of the Cotroni assessment did not impair procedural fairness and the Minister’s decision not to provide a copy of the requested Cotroni assessment was reasonable. [27] We also do not accept Sriskandarajah’s claim that the Minister failed to take account of relevant factors, submissions and materials in deciding to order his surrender. [28] As Sriskandarajah acknowledges in his factum, the Minister expressly considered a number of relevant factors in his assessment of whether surrender would be a justifiable limitation on Sriskandarajah’s s. 6(1) Charter rights. Sriskandarajah argues, however, that the Minister acted unreasonably by failing to consult with the relevant authorities in the United States about the current status of his co-accused and by failing to consider his alleged inability to challenge, in the United States, the lawfulness of a search of his residence conducted by the Royal Canadian Mounted Police. He further submits that the evidence discloses a “highly tenuous link, if any, between [his] conduct and the interests of the United States”. [29] We disagree. As we have said, the Minister stated in his reasons that he had conducted his own Cotroni inquiry. There is no basis on the record before us to doubt that the Minister did precisely what he said he had done. Moreover, the Minister was not obliged to refer expressly to each Cotroni factor in his reasons: see United States of America v. Lake (2006), 212 C.C.C. (3d) 51 (Ont. C.A.), at para. 29, affirmed [2008] 1 S.C.R. 761. Thus, his failure to indicate in his reasons whether he had confirmed the status of Sriskandarajah’s co-accused, or his failure to comment on Sriskandarajah’s assertion that he would be unable to challenge the lawfulness of the search of his residence in a trial held outside Canada, does not render his surrender decision unreasonable. [30] More importantly, the Minister detailed in his reasons the basis for his conclusion that surrendering Sriskandarajah to the United States was a justifiable breach of Sriskandarajah’s s. 6 Charter right to remain in Canada. The reasons reveal that the Minister weighed and balanced the interests and ability of the United States to prosecute Sriskandarajah against those factors that arguably favoured his prosecution in Canada. The Minister noted: [S]ince 1999, agents of the United States Federal Bureau of Investigation and other United States law enforcement personnel have been investigating individuals and charitable organizations that allegedly provide material support to the LTTE. It is this investigation which linked Mr. Sriskan-darajah to the LTTE and which is the basis of the allegation that Mr. Sriskandarajah was involved in providing material support to the LTTE in the period from September 2004 to April 2006. [31] As this court has said, “The Minister is entitled to rely on the validity of the assertion of jurisdiction made by the requesting state” and, further, “[T]he determination of jurisdiction of the foreign court is a matter first for the foreign authorities and ultimately for the foreign court”: United States of America v. Kavaratzis (2006), 208 C.C.C. (3d) 139 (Ont. C.A.), at para. 10. [32] In this case, the Minister explicitly addressed, among other factors, the interests of the United States in prosecuting Sriskandarajah, the genesis of the allegations against him, the fact of Sriskandarajah’s Canadian citizenship, the place where his conduct is alleged to have been committed, the fact that the search of his residence in Canada was conducted at the request of authorities in the United States, and the fact that no charges have been laid and none are contemplated in Canada. Based on his review of these and other considerations, the Minister determined that the United States has the superior interest in prosecuting Sriskandarajah. The Minister put it this way: In the circumstances of this case, insofar as the investigation was initiated and developed by the American authorities, all of the co-accused have been charged there, and most of the witnesses are located there, it would not in my view be an unjustifiable breach of Mr. Sriskandarajah’s section 6 Charter rights to surrender him to face prosecution in the United States. Nor am I persuaded that this is a case where surrender would be either unjust or oppressive under paragraph 44(1)(a) of the Act or would otherwise warrant a refusal of surrender under the Treaty. [33] As appears from these comments, and contrary to Sriskandarajah’s submission, the evidence before the Minister revealed strong links between Sriskandarajah’s conduct and the interests of the United States. The Minister’s assessment of the strength of those interests in this case attracts considerable deference from a reviewing court. [34] In the end, we are not persuaded that the Minister’s surrender decision is unreasonable. On the contrary, we think that it is fully supported by the evidence in this case. IV. Disposition [35] For the reasons given, both the appeal and judicial review application are dismissed. RELEASED: “DD” “DEC 17 2010” “Doherty J.A.” “M.J. Moldaver J.A.” “Cronk J.A.”