



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Qumsyeh, 2015 ONCA 551

DATE: 20150724

DOCKET: C56517 and C59621

Doherty, Gillese and Brown JJ.A.

IN THE MATTER OF an appeal of a committal order pursuant to
    s. 49 of the
Extradition Act
, S.C. 1999, c. 18

AND IN THE MATTER OF an application for judicial review
    pursuant to s. 57 of the
Extradition Act
, S.C. 1999, c. 18

BETWEEN

The Attorney General of Canada on behalf of the
    United States of America and the Minister of Justice

Respondent

and

Jeries Yacob Qumsyeh

Appellant

Anthony Moustacalis and D. Goldbloom, for the appellant

Moiz Rahman, for the respondent

Heard: July 22, 2015

On appeal from the committal order of Justice Kenneth L.
    Campbell of the Superior Court of Justice, dated December 4, 2012, and on
    application for judicial review of the surrender order of the Minister of
    Justice, dated October 20, 2014.

By the Court:

[1]

This appeal and application for judicial review concern the extradition
    of Jeries Yacob Qumsyeh to the United States.

[2]

Mr. Qumsyeh is wanted in the United States for the 1982 murder of his
    ex-wife, Salwa Isaac. Mr. Qumsyeh is a citizen of the Kingdom of Jordan. He
    returned to his homeland before he was charged by United States authorities with
    Ms. Isaacs murder.

[3]

In Jordan, Mr. Qumsyeh was prosecuted and convicted for the murder of
    Ms. Isaac, and sentenced to fifteen years in prison. As part of a general
    amnesty, Mr. Qumsyeh was released from prison after serving six and a half
    years of his sentence.

[4]

After Mr. Qumsyeh came to Canada in 2011, the United States requested
    his extradition so that he could be tried in Michigan for Ms. Issacs murder.

[5]

The extradition judge ordered Mr. Qumsyehs committal. He found that he
    had no jurisdiction to consider Mr. Qumsyehs claim of abuse of process, which
    was based on an allegation of double jeopardy, and that such a claim was a
    matter for the Minister to consider during the surrender phase.

[6]

The Minister ordered that Mr. Qumsyeh be surrendered, despite his prior
    trial and conviction for the same murder in Jordan.

[7]

Mr. Qumsyeh appeals against the committal order and brings a judicial review
    application in respect of the surrender decision. Both the appeal and the
    judicial review application are based on the fact that Mr. Qumsyeh has already
    been convicted and sentenced in Jordan for the same offence for which the
    United States seeks extradition.

[8]

For the reasons that follow, both the appeal and the judicial review
    application are dismissed.

ANALYSIS

The Appeal

[9]

Mr. Qumsyeh submits that his appeal against committal should be granted
    because the committal judge erred in failing to stay the extradition procedure
    as an abuse of process. A principle of fundamental justice is that a person
    should not be placed in double jeopardy by being twice tried for the same
    offence. As he has already been tried and convicted of the murder, and served
    his sentence in Jordan, he says that it is an abuse of process for the United
    States to now seek to retry him for the same murder.

[10]

We
    reject this submission. In our view, the committal judge correctly found that
    the double jeopardy claim was not within his limited
Charter
jurisdiction.

[11]

The
    role of the committal judge under the
Extradition Act
, S.C. 1999, c.
    18 is limited: he or she is to determine whether the foreign authority has put
    forward sufficient admissible evidence to make out a
prima facie
case
    against the fugitive.

[12]

The
    source of the committal judges jurisdiction to consider
Charter
issues
    is not inherent; it flows from s. 25 of the
Extradition Act
. Section
    25 gives the committal judge jurisdiction to consider
Charter

issues
    that pertain directly to the circumscribed issues relevant at the committal
    stage of the extradition process:
United States of America v. Kwok
,
    2001 SCC 18, [2001] 1 S.C.R. 532, at para. 57.

[13]

The
    double jeopardy claim is not closely connected to the committal process. The
    committal judge properly saw that double jeopardy was a matter for the
    Minister: see
United States of America v. J. H. K.

(2002), 165
    C.C.C. (3d) 449 (C.A.), at para. 24. Contrary to the appellants submission,
    this case is not like
United States of America v. Khadr
, 2011 ONCA
    358, 106 O.R. (3d) 449, at para. 45, leave to appeal refused, [2011] S.C.C.A.
    No. 316, in which the requesting state obtained the evidence used at the
    committal hearing through its own misconduct.

The Judicial Review Application

[14]

Mr.
    Qumsyeh submits that the Ministers decision is unreasonable because:

1.

He made erroneous findings of fact;

2.

It resulted in him being forced to endure double jeopardy;

3.

Extradition would constitute an abuse of process; and

4.

Deporting someone to face life imprisonment without the possibility     of
    parole would shock the conscience of the court.

[15]

We
    do not accept these submissions.

[16]

Before
    turning to these various grounds of appeal, we note that the standard of review
    of the Ministers surrender decision is reasonableness and interference with
    that decision is limited to exceptional cases of real substance:
Lake v.
    Canada (Minister of Justice)
, 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 34.

Alleged Erroneous Findings of Fact

[17]

The
    applicant submits that the Minister erroneously found that the United States
    did not materially assist the prosecution in Jordan or acquiesce in it.

[18]

In
    our view, the Ministers conclusion about the lack of United States
    involvement in Mr. Qumsyehs trial in Jordan was reasonable. The Minister was
    entitled to rely on the information provided by the United States, which
    indicated that the American authorities did not request that Jordan prosecute
    Mr. Qumsyeh. Indeed, the record shows that the United States only learned of
    the prosecution after Mr. Qumsyeh had been tried, convicted and begun serving
    his sentence.

[19]

As
    for the suggestion that the Minister erred in finding that the applicant would
    be able to raise double jeopardy issues in the United States trial, we
    disagree. The Minister did not ignore the applicants evidence on American law
    nor did he treat it unreasonably. He said that it was not his role to attempt
    to anticipate whether that defence would succeed. Instead, the Ministers focus
    was on whether the applicant would receive a fair trial in the United States. In
    our view, the Minister did not act unreasonably.

The Double Jeopardy Submissions

[20]

Both
    the second and the third submissions relate to the applicants double jeopardy
    claim.

[21]

The
    Minister concluded that the availability of the
autrefois convict/acquit
defence
    in the American proceedings was not determinative. He was of the view that the
    American judicial system would provide the applicant with due process, even if
    the particular defences and procedural protections available to him in the
    United States were different than those available to him in Canada.

[22]

Were
    this a domestic prosecution, it is an open question whether the foreign
    conviction for murder would bar a Canadian prosecution for that murder. However,
    even if the foreign conviction would bar a subsequent Canadian prosecution, we
    do not see the Ministers conclusion as unreasonable. In
Canada v. Schmidt
,

[1987] 1 S.C.R. 500, LaForest J. explained that a foreign justice system is
    not fundamentally unjust simply because its procedural or evidentiary
    safeguards differ from those of Canada. He held that surrender should only be
    refused where it offends against the basic demands of justice. The Minister
    acted reasonably in following the principles set out in
Schmidt
.

[23]

Furthermore,
    contrary to the appellants submission, the Minister did consider all of the
    relevant factors pertaining to this issue. This includes the applicants
    personal circumstances and his treatment while in custody in Jordan. At p. 10
    of his surrender decision, the Minister states that for the purposes of his
    decision, he accepted as true Mr. Qumsyehs evidence that he was tortured and
    subject to deplorable prison conditions while in Jordanian custody.  We note
    that there is no suggestion whatsoever that the United States was implicated in
    or even aware of this.

Would surrender shock the conscience?

[24]

If
    the applicant is convicted of first-degree murder in Michigan, he will receive
    a mandatory life sentence without the possibility of parole. He says that this
    harsh punishment would shock the conscience of the Canadian public and,
    consequently, that the Ministers decision to surrender him is unreasonable.

[25]

Extradition
    to face the possibility of life imprisonment without the possibility of parole
    is not unreasonable:
United States of America
v. Burns
, 2001
    SCC 7, [2001] 1 S.C.R. 283. In
Burns
, the Supreme Court refused to
    allow extradition where the accused would face the death penalty. However, at
    para. 71 of
Burns
,
the Court states that although a sentence of
    life imprisonment without parole is not a sentence available in Canada, the
    Ministers surrender decision would not sufficiently shock the conscience of
    Canadians so as to make surrender unjust or oppressive where that is the
    sentence facing the accused in the foreign jurisdiction.

[26]

In
    light of
Burns
,
it cannot be said that the Ministers decision
    is unreasonable.

DISPOSITION

[27]

Accordingly,
    the appeal and application are both dismissed.

Released: July 24, 2015 (E.E.G.)

Doherty J.A.

E.E. Gillese J.A.

David Brown J.A.


