The Test for Appealing an Extradition Order?United States of America v Abdullahi, 2019 ABCA 238 (CanLII)
Keywords: Extradition Act, SC 1999, c 18; Facilitating Terrorism; Presumption
The Appellant, Mr. Abdullahi is alleged to be part of a group motivated to fight for the Islamic State of Iraq and Syria (“ISIS”). The U.S. seeks Mr. Abdullahi’s extradition to stand trial on terrorism-related offences; alleges that he committed an armed robbery in Edmonton and later wired funds to two Americans to facilitate their travel to Syria, where they died fighting for ISIS.
Mr. Abdullahi appeals as against an Extradition Judge’s order for committal into custody to await surrender. The appeal is based on arguments that the evidence does not satisfy the test under the Extradition Act, SC 1999, c 18 because it was “manifestly unreliable”. (See para. 24).
The Court of Appeal agrees with the Extradition Judge that the United States’ evidence, contained in the Record of the Case (“ROC”) was sufficient “…to allow a reasonable jury, properly instructed, to convict.” (See para. 28). The appeal is dismissed. For the Court of Appeal, there was no issue with reliability.
The Court of Appeal notes that extradition is supposed to be a “simple and expeditious process”. (See para. 16). An Extradition Judge has limited jurisdiction under s. 29(1) of the Extradition Act, and the purpose of an extradition hearing is to ensure the evidence establishes a prima facie case the crime has been committed. (See para. 17).
As such, once documents and evidence contained in an ROC are “certified in compliance with the Extradition Act”, they become presumptively reliable pursuant to United States of America v Ferras, 2006 SCC 33 (CanLII) at paras. 48, 52-58. Overcoming this presumption is no easy feat, nor should it be. At the very least, however, would Canadians likely agree that how one may or may not overcome the presumption should be clearly intelligible and understood?
For the Court of Appeal, “Mr. Abdullahi can challenge the sufficiency of the case for extradition including the reliability of certified evidence, but the issue is not whether the evidence is, in fact, reliable, but whether the low hurdle of threshold reliability has been met.” (See para. 19).
In other words, whether the evidence is weak or strong and/or whether a conviction is or is not likely are “not the extradition judge’s concern” and so, “do not provide a basis for refusing committal.” For the Court of Appeal, Mr. Abdullahi’s ultimate guilt or innocence is a question for the trial court in the foreign jurisdiction – all the Extradition Judge is looking at is whether the evidence is such that “the trier of fact could convict”. (See para. 20). (Emphasis in original).
Where does that leave Mr. Abdullahi, or any prospective Appellant in this context? What is the test to rebut the presumption of reliability? Citing Ferras at paras. 40 and 54, the Court of Appeal stated it this way: “He must demonstrate that the evidence fails to disclose a case upon which a reasonable jury, properly instructed, could convict. Phrased another way, is the evidence is [sic] so defective, it would be dangerous or unsafe to convict and therefore manifestly unreliable?” (See para. 23).
For the Court of Appeal, Mr. Abdullahi failed to meet this test. The reasons indicate that “[n]o evidence was presented…to rebut the presumption” (see para. 23), that he merely repeated “…the same arguments on appeal as raised before the extradition judge”. (See para. 24).
In arriving at this conclusion, the Court of Appeal stated as follows with respect to these arguments:
In our view, Mr. Abdullahi’s appeal is grounded in the erroneous suggestion that the evidence in the ROC would not meet the evidentiary standards of a Canadian criminal trial. This is not the test. The extradition judge, having been presented with a properly certified ROC, was correct to conclude that the evidence contained in it was presumptively reliable and available for trial in the United States. (See para. 26).
One may reasonably ask what the material difference is between whether the evidence would meet “…the evidentiary standards of a Canadian criminal trial” and the requirement that the evidence be such that “…a reasonable jury, properly instructed, could convict.” Is one of these two descriptions a lower threshold than the other? As a matter of logic, can it ever be the case that a reasonably jury, properly instructed, could convict notwithstanding the evidence does not meet Canadian evidentiary standards? A juridical Rubik’s cube, perhaps?
Furthermore, if an Extradition Judge’s task is to decide whether the evidence discloses a case on which the ultimate trier of fact could convict Mr. Abdullahi, is that on an American criminal standard of evidence? Does this decision leave open significant questions meriting further exploration and appellate guidance?
Counsel for the Respondent: Stacey Dej (Justice Canada, Edmonton)
Counsel for the Appellant: Akram Attia (Attia Reeves, Edmonton)