The Attorney General for Canada et al. v. Raghoonanan [Indexed as: Canada (Attorney General) v. Raghoonanan]
63 O.R. (3d) 465
[2003] O.J. No. 391
Docket No. M29486 (C35694)
Court of Appeal for Ontario
Simmons J.A. (In Chambers)
February 13, 2003
Criminal law -- Extradition -- Bail -- Applicant committed for extradition to Trinidad on charges of murder and accessory after the fact to murder -- Mandatory sentence for murder in Trinidad is death by hanging -- Applicant appealing against committal order -- Applicant applying for bail pending appeal and bail pending Minister of Justice's surrender decision -- Application for bail pending surrender decision granted -- Mandatory death penalty raising non-frivolous issue for Minister's consideration -- Applicant establishing that he would surrender into custody despite temptation to flight provided by death penalty -- Applicant having waived time limits in s. 40 of Act for Minister's surrender decision but delay of 14 months to date of bail application constituted factor weighing in favour of release order -- Applicant establishing that public interest considerations favouring his release outweighed those favouring his detention and that his continued detention pending Minister's surrender decision not necessary in public interest -- Application for bail pending appeal from committal order adjourned -- Extradition Act, 1999, S.C. 1999, c. 18, s. 40.
The applicant was committed for extradition to Trinidad on charges of murder and accessory after the fact to murder. He appealed that decision. He was awaiting a decision from the Minister of Justice under s. 40 of the Extradition Act, 1999 concerning whether he would be surrendered. If convicted of murder in Trinidad, the applicant faced a mandatory sentence of death by hanging. The applicant brought an application under s. 20 of the Extradition Act, 1999 for bail pending appeal and bail pending the Minister's surrender decision.
Held, the application for bail pending the surrender decision should be granted; the application for bail pending appeal should be adjourned.
Section 679(3) of the Criminal Code, R.S.C. 1985, c. C-46 applied to the application in this case. However, in the extradition context, the public interest in having the committal order enforced weighs less heavily against the granting of bail than does the public interest in immediate enforcement of a sentence where the appeal is against a criminal conviction. With respect to the required demonstration of merit required in s. 679(3)(a), it should be modified in the extradition context to read"whether the issues raised in the applicant's submissions to the Minister are not frivolous".
With respect to the application for bail pending the Minister's surrender decision, the applicant satisfied the first branch of the test for release. While there is no absolute constitutional prohibition on extradition to face capital punishment, assurances that the death penalty will not be imposed are required in all but exceptional cases. In this case, because of the mandatory nature of the penalty to be imposed, there was no indication of how such assurances might be provided. However, the Minister is entitled, under s. 44(2) of the Act, to refuse to make a surrender order "if satisfied that the conduct in respect of which the extradition request is made is punishable by death". The mandatory death penalty in this case raised an issue for the Minister's consideration that was far from frivolous. [page466]
There were important factors weighing against the applicant's release under the second and third branches of the test. The mandatory death penalty gives rise to a strong temptation to flee, weighing against the likelihood of surrender. In addition, the following factors all militate against release: a Superior Court Judge found sufficient evidence to warrant a committal; the murder amounted to a contract killing of a state witness; the seriousness of the charge; and Canada's international obligations. However, the applicant had no criminal record, there was no evidence of any attempt to evade the charges and his roots were in Canada. His proposed sureties, his mother and sister, were appropriate sureties, and satisfactory conditions of supervision could be fashioned to minimize any risk that he would not surrender. Both the flight risk posed by the prospect of the death penalty and any risk that the sureties would fail to fulfill their obligations because of it could be minimized by requiring the applicant's arrest or surrender into custody prior to the Minister's surrender decision.
With respect to the third branch of the test, four important considerations militated in favour of the applicant's release. One, although he had been committed for extradition, unlike in the ordinary situation of bail pending appeal, the presumption of innocence remained operative, as did the Canadian Charter of Rights and Freedoms right not to be denied reasonable bail without just cause. Two, the prosecution's case against the applicant was less than formidable. Three, the applicant had raised a very serious issue for the Minister's consideration. Four, although he waived the time limit in s. 40 of the Act for the Minister's surrender decision in order to secure an extension of time for making his submissions to the Minister, the applicant had now been waiting for the Minister's decision for more than 14 months. Absent a waiver, in default of a surrender decision within 150 days from the date of committal, the applicant was entitled to apply for an order that he be discharged out of custody. The giving of a waiver in this case did not mean that it was unnecessary for the Minister's surrender decision to be made in a timely way. The continuing delay was one of the factors weighing in favour of a release order. Taking these four considerations into account, the applicant had demonstrated that the public interest considerations favouring his release outweighed those favouring his detention, and that his continued detention pending the Minister's surrender decision was not necessary in the public interest.
The application for bail pending appeal from the committal order should be adjourned to no fixed date returnable on two days notice following the Minister's surrender decision for two reasons. First, the appeal barely met the "not frivolous" test. Second, as stated above, the risk of flight could change significantly based on the Minister's surrender decision, and the applicant should surrender as a condition of bail pending that decision. In these circumstances, it was more appropriate that the application for bail pending appeal be disposed of after the Minster's surrender decision was made.
APPLICATION for bail pending an appeal of a committal order and for bail pending the Minister of Justice's surrender decision.
Cases referred to R. v. Farinacci (1993), 1993 3385 (ON CA), 109 D.L.R. (4th) 97, 18 C.R.R. (2d) 298, 86 C.C.C. (3d) 32, 25 C.R. (4th) 350 (Ont. C.A.); RJR- MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, 60 Q.A.C. 241, 111 D.L.R. (4th) 385, 164 N.R. 1, 20 C.R.R. (2d) D-7, 54 C.P.R. (3d) 114; United States of America v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, 85 B.C.L.R. (3d) 1, 195 D.L.R. (4th) 1, 265 N.R. 212, [2001] 3 W.W.R. 193, 81 C.R.R. (2d) 1, 151 C.C.C. (3d) 97, 39 C.R. (5th) 205 (sub nom. United States v. Burns); United States of America v. Sheppard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, 70 D.L.R. (3d) 136, 34 C.R.N.S. 207, 9 N.R. 215, 30 C.C.C. (2d) 424 (sub nom. U.S.A. v. Sheppard) [page467] Statutes referred to Canadian Charter of Rights and Freedoms, s. 11(e) Criminal Code, R.S.C. 1985, c. C-46, s. 679(3) Extradition Act, 1999, S.C. 1999, c. 18, ss. 12, 20, 40, 41(1), 44(2), 69 Offences Against the Person (Amendment) (No. 2) Act (Trinidad and Tobago) Offences Against the Person Act (Trinidad and Tobago), c. 11:08, s. 4
John Norris, for applicant. Bradley Reitz, for respondent.
1SIMMONS J.A. (in chambers): -- Simon Raghoonanan applies for bail under s. 20 of the Extradition Act, 1999, S.C. 1999, c. 18 (the "Act").
2Mr. Raghoonanan was arrested in Etobicoke on November 30, 1999 following a request by The Republic of Trinidad and Tobago ("Trinidad") on November 18, 1999 that a provisional warrant be issued under s. 12 of the Act for his arrest.
3On January 18, 2001, Dilks J. committed Mr. Raghoonanan for extradition on charges of murder and accessory after the fact to murder. Mr. Raghoonanan has appealed that decision. He is also awaiting a decision from the Minister of Justice under s. 40 of the Act concerning whether he will be surrendered ("the Minister's surrender decision").
4If convicted of murder, Mr. Raghoonanan faces a mandatory sentence of death by hanging.
5Counsel are essentially agreed on the modifications necessary to the Criminal Code, R.S.C. 1985, c. C-46 test for release when dealing with an application under the Act. Accordingly, the main issue on this application is whether Mr. Raghoonanan has met the requirements of that test.
6For the reasons that follow, Mr. Raghoonanan's application for bail pending the Minister's surrender decision is granted on terms to be settled following submissions of counsel. His application for bail pending appeal is adjourned to no fixed date returnable on two days notice following the Minister's surrender decision.
Background to the Charge
7Mr. Raghoonanan and three others are jointly charged with the murder of Clint Huggins ("Mr. Huggins"). Mr. Huggins was Mr. Raghoonanan's cousin. He was found dead at the side of a road in Trinidad during the early morning of February 20, 1996. He died as the result of being shot and stabbed. [page468]
8At the time of his death, Mr. Huggins was the key prosecution witness in the impending trial of Dole Chadee, a reputed Trinidadian gang leader, and eight of his associates, for four drug-related murders on January 10, 1994. The prosecution alleged that Chadee had ordered the execution of a former gang member and any witnesses to his murder. Mr. Huggins was a party to the murders, but received immunity for implicating and testifying against the others who were involved. Immediately prior to his death, Mr. Huggins was in protective custody, awaiting the trial.
9At about 5 a.m. on February 18, 1996, Mr. Huggins arrived unexpectedly at the home of Leslie Huggins (another cousin) and Leslie's common-law wife, Swarsatee Maharaj ("Maharaj"). Over the next two days, Mr. Huggins spent his time socializing with friends and family, including Mr. Raghoonanan, who was staying temporarily at Leslie Huggins' home.
10On February 21, 1996, Mr. Raghoonanan, Leslie Huggins and Junior Phillip were arrested in connection with the Mr. Huggins' death. Mr. Raghoonanan and Leslie Huggins gave exculpatory statements. Maharaj gave a statement on February 24, 1996 confirming their stories. The three men were released on February 24, 1996. Search warrants were executed at the homes of Leslie Huggins, Junior Phillip and Mr. Raghoonanan's sister on February 25, 1996, but no incriminating evidence was found. Junior Phillip gave an exculpatory statement on November 6, 1996.
11On November 4, 1999, Junior Phillip gave a further statement to police allegedly implicating himself, Leslie Huggins, Arnold Huggins (another cousin), and Mr. Raghoonanan in the murder. Phillip admitted to striking Mr. Huggins on the head three times with a sawed-off shotgun. However, Mr. Raghoonanan contends that the full contents of this statement, including any details about the role of Mr. Raghoonanan, have not been disclosed.
12On November 11, 1999, Maharaj gave a statement to police allegedly implicating Leslie Huggins, Arnold Huggins, Junior Phillip and Mr. Raghoonanan in the murder. Once again, Mr. Raghoonanan contends that the details of this statement have not been disclosed.
13On November 12, 1999, Arnold Huggins gave a statement to police disclaiming any knowledge of a plan to kill Mr. Huggins, but acknowledging that he shot him twice and claiming that it was an accident. Arnold Huggins' statement places Mr. Raghoonanan at the scene of the killing.
14On November 16, 1999, Mr. Raghoonanan, Leslie Huggins, Arnold Huggins and Junior Phillip were jointly charged with the murder of Mr. Huggins. [page469]
15On December 2, 1999, Maharaj gave a further statement to police. She claimed that in the early morning of February 20, 1996, she, Mr. Huggins, Leslie Huggins, Arnold Huggins, Junior Phillip and Mr. Raghoonanan set off in two cars to attend a Carnival event. Leslie Huggins drove a Nissan Laurel with Maharaj in the front passenger seat and Mr. Huggins in the back seat. Mr. Raghoonanan drove a Mitsubishi Lancer with Arnold Huggins in the front passenger seat and Junior Phillip in the back seat.
16According to Maharaj, Mr. Raghoonanan followed the car driven by Leslie Huggins. At some point, Leslie Huggins pulled over to the side of the road. Mr. Raghoonanan pulled in behind him, turned off his headlights, but left the engine running. Arnold Huggins came up to the Laurel, holding a gun, and told Maharaj to go and sit in the Lancer. Junior Phillip joined Arnold Huggins. Mr. Huggins got out of the Laurel and faced Arnold Huggins, who shot him.
17After the shot was fired, Mr. Raghoonanan pulled out from behind the Laurel and drove to the next traffic light. He then made a u-turn and returned to the scene, and stopped on the opposite side of the road. Mr. Huggins ran across the highway towards the Lancer, but Leslie Huggins drove the Laurel across the highway and knocked Mr. Huggins into a chain link fence. Mr. Raghoonanan backed the Lancer up to where the Laurel had stopped. Arnold Huggins, Leslie Huggins and Junior Phillip grabbed Mr. Huggins and put him in the back seat of the Laurel. Leslie Huggins called to Mr. Raghoonanan to come and stab Mr. Huggins but Mr. Raghoonanan remained in the Lancer. After stabbing Mr. Huggins, striking him with a piece of wood, and setting the Laurel on fire with Mr. Huggins' body inside, Leslie Huggins, Arnold Huggins and Junior Phillip got into the Lancer and all five occupants drove away.
18According to Maharaj, after arriving at the Huggins/ Maharaj residence, Mr. Raghoonanan vacuumed the Lancer and told the others to throw their jeans in the latrine. He also suggested that they get their stories straight because the police would be questioning them. Leslie Huggins, Junior Phillip and Mr. Raghoonanan told Maharaj to tell the police that Mr. Huggins had borrowed her car and that they had not seen him since. Maharaj claimed that Leslie Huggins told her that he had $3 million to collect for killing Mr. Huggins. She also said that she was with Leslie Huggins later when he disposed of the gun and a knife.
19On February 26, 2000, based on the foregoing information, the Minister of Justice issued an Authority To Proceed under the Act against Mr. Raghoonanan on a charge of accessory after the fact to murder, even though the Trinidadian charge was murder. [page470]
20On September 27, 2000, the Director of Public Prosecutions for Trinidad undertook not to prosecute Maharaj for any criminal offence she was involved in prior to that date provided she made full disclosure of all information she had relating to Mr. Huggins' murder. On the same day, Maharaj gave a further statement, describing a conversation on February 19, 1996 between Leslie Huggins and Mr. Raghoonanan. Leslie Huggins asked Mr. Raghoonanan"[w]here we going to get a gun from, how we going to do this". Mr. Raghoonanan replied"[w]ell, go up to Mathura for Arnold, he has a gun". Leslie Huggins replied"[o]kay".
21During a deposition on October 6, 2000, Maharaj apparently clarified her understanding of what Leslie Huggins was referring to in saying"how we going to do this". She said she understood he meant to kill Clint Huggins.
22On November 28, 2000, the Minister of Justice amended the Authority To Proceed to include the offence of murder.
Personal Circumstances of Mr. Raghoonanan
23Mr. Raghoonanan was born in Trinidad on March 4, 1962. He first came to Canada as a visitor on December 5, 1988. He applied for refugee status, and, while living in Canada, attended a welding school and obtained a welding certificate. When his refugee claim was denied, he purchased his own ticket and returned to Trinidad.
24In May 1996, Mr. Raghoonanan was married, in Trinidad, to a woman he met while in Canada. On October 31, 1996, with the benefit of his wife's sponsorship, he applied to return to Canada, and eventually re-entered this country on September 30, 1998.
25On November 15, 1998, at age 36, Mr. Raghoonanan suffered a heart attack. He underwent six-artery by-pass surgery on March 1, 1999. He suffered moderate damage as the result of the heart attack, which could place him at risk for the development of heart failure.
26Mr. Raghoonanan does not have a criminal record in Canada. In Trinidad, he was once charged with possession of marijuana for the purpose of trafficking. On September 10, 1998, he was reprimanded and discharged in relation to this charge.
27At the time of his arrest, Mr. Raghoonanan was working as a welder. He and his wife are now separated. Mr. Raghoonanan claims that the separation is the result of the hardship caused by his incarceration.
The Proposed Sureties
28Mr. Raghoonanan's sister, Jean Huggins, and his mother, Lorna Raghoonanan, have offered to act as his sureties. Jean was [page471] born in Trinidad on November 2, 1956. Jean moved to Canada 17 years ago and became a Canadian citizen 13 years ago. She works two jobs, one as a "select packer" at a manufacturing company, and the other as a housekeeper at Etobicoke General Hospital. With the income from her employment she supports herself, her mother, and to a lesser extent, her 25-year-old son.
29Jean purchased a house on November 29, 2001, paying $25,000 in cash on the purchase price of $227,000. Her son co- signed the mortgage and is therefore also listed as an owner on title.
30Jean does not have a criminal record. She is aware of the allegations against her brother. She claims that she learned about the possibility of charges from her sister in Trinidad soon after the co-accused were arrested, and discussed the possibility of an arrest with her brother. She says that he did not attempt to hide or run away. She is prepared to sign a recognizance for $25,000 and have her brother live in her home.
31Lorna was born in Trinidad on November 27, 1939. She came to Canada nine years ago, is a Canadian citizen, and does not have a criminal record. Although she goes out occasionally, most days she is at home. She has about $3,000 in savings and does occasional babysitting. Her daughter supports her. She is prepared to sign a recognizance in an appropriate amount.
Interpretation of Legislation Setting Out the Test for Release
32Mr. Raghoonanan applies for bail under both s. 20(a) and (b) of the Act:
- Section 679 of the Criminal Code applies, with any modifications that the circumstances require, to the judicial interim release of a person pending
(a) a determination of an appeal from an order of committal made under section 29;
(b) the Minister's decision under section 40 respecting the surrender of the person; or
(c) a determination of a judicial review of the Minister's decision under s. 40 to order the surrender of the person.
(Emphasis added)
33Subsection s. 679(3) of the Criminal Code is the applicable provision in this case:
679(3) In the case of an appeal referred to in paragraph (1)(a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that
(a) the appeal or application for leave to appeal is not frivolous; [page472]
(b) he will surrender himself into custody in accordance with the terms of the order; and
(c) his detention is not necessary in the public interest.
34Mr. Raghoonanan relies on two distinct footings for bail under s. 20 of the Act. Both counsel suggest that they be considered separately. With respect to the application for bail pending appeal, the only modification Mr. Raghoonanan's counsel suggests is under ss. 679(3)(c) of the Criminal Code. He submits that, in the extradition context, the public interest in having the committal order enforced weighs less heavily against the granting of bail than does the public interest in immediate enforcement of a sentence where the appeal is against a criminal conviction: see R. v. Farinacci (1993), 1993 3385 (ON CA), 86 C.C.C. (3d) 32, 109 D.L.R. (4th) 97 (Ont. C.A.).
35Counsel for the respondent does not contest this modification, and I agree that it is appropriate.
36With respect to the application for bail pending the Minister's surrender decision, Mr. Raghoonanan's counsel submits that, in addition to the modification required under s. 679(3)(c), a modification is also necessary under s. 679(3)(a). He says that two options are available. One is to ignore s. 679(3)(a) altogether, because there is no appeal to evaluate. The other option is to apply a test modelled on that used in interim stay applications, namely, whether the applicant has raised a serious question for the Minister's determination: see RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385.
37Counsel for the respondent submits that s. 679(3)(a) should not be ignored, and that the modified test should be "whether the issues raised in the applicant's submissions to the Minister are not frivolous".
38I agree that s. 679(3)(a) should not be ignored. Parliament has indicated a clear intention in that section that bail not be granted unless the issues raised by an applicant reach a certain threshold. The Minister's surrender decision is triggered only once a committal order has been made. Although an executive decision embracing considerations well beyond the Sheppard [See Note 1 at end of document] test, and a decision subject to only limited judicial review, I see no reason to exempt applicants from the obligation of demonstrating issues warranting the Minister's consideration as a pre-condition to a release order.
39I adopt the test proposed by the respondent. It preserves the language of s. 679(3)(a), and, in my view, is the practical [page473] equivalent of the test proposed by the applicant. See RJR -MacDonald at p. 337 S.C.R., para. 50 where the test is also expressed as follows:
Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests . . .
(Emphasis added)
Analysis
(i) Application for release pending the Minister's surrender decision
40I will deal with the application for bail pending the Minister's surrender decision first. Counsel for the respondent concedes that Mr. Raghoonanan has satisfied the first branch of the test for release. I agree. The charge pending against Mr. Raghoonanan in Trinidad is murder. Section 4 of the Offences Against the Person Act (c. 11:08, Trinidad and Tobago) provides:
Every person convicted of murder shall suffer death.
Other provisions confirm that any sentence of death is to be carried out by hanging. [See Note 2 at end of document]
41In United States of America v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, 151 C.C.C. (3d) 97, the Supreme Court of Canada confirmed that, while there is no absolute constitutional prohibition on extradition to face capital punishment"assurances [that the death penalty will not be imposed] are required in all but exceptional cases". In this case, because of the mandatory nature of the penalty to be imposed, there is no indication of how such assurances might be provided. However, the Minister is entitled, under s. 44(2) of the Act, to refuse to make a surrender order "if satisfied that the conduct in respect of which the request for extradition is made is punishable by death". In addition, under s. 40(3) of the Act, the Minister is entitled to impose a condition that the person be prosecuted only for the offence specified in the surrender order.
42It is not for this court to speculate concerning the Minister's ultimate decision. However, in my view, it is clear that the [page474] mandatory death penalty provision raises an issue for the Minister's consideration that is far from frivolous.
43Nevertheless, there are important factors weighing against Mr. Raghoonanan's release under the second and third branches of the test. On the second branch of the test, the mandatory death penalty in the event of conviction undoubtedly gives rise to a strong temptation to flee weighing against the likelihood of surrender. On the third branch of the test, there are several factors that weigh against release. They include the finding by a Superior Court judge that there is sufficient evidence to warrant a committal; the seriousness of the charge; the fact that the murder amounted to a contract killing of a state witness; and the importance of Canada fulfilling its international obligations.
44However, I am satisfied that Mr. Raghoonanan has met the test for release for four reasons.
45First, dealing with the second branch of the test, aside from the discharge that I have referred to, Mr. Raghoonanan has no criminal record. In particular, he has no history of offences for failing to appear or breaching court orders. Significantly, there is no evidence in the record before me of any attempt to evade these charges. [See Note 3 at end of document]
46Second, other than in Trinidad, Mr. Raghoonanan's roots are in this community. He lived and worked here after leaving Trinidad between 1988 and 1995, and again, subsequent to 1998. His mother, one sister and his estranged wife all live here. Aside from an unsubstantiated suggestion in the Trinidadian request for a provisional arrest warrant, dated November 18, 1999, that Mr. Raghoonanan "is a member of a notorious drug gang" in Trinidad, there is no suggestion that, once his travel documents have been surrendered, Mr. Raghoonanan has the type of connections that could enable him to flee. Finally, although his health problems would not appear to preclude his ability to flee, they do not enhance the prospect of flight.
47Third, I am satisfied that Mr. Raghoonanan's mother and sister are appropriate sureties and that satisfactory conditions of [page475] supervision can be fashioned to minimize any risk that Mr. Raghoonanan will not surrender. I had concerns that, in their affidavits, neither proposed surety addressed their views on fulfilling their obligations even if it means Mr. Raghoonanan will face the death penalty. However, both indicated their willingness to comply with the obligations of a surety, and neither was cross-examined. Moreover, the decision in Burns raises a serious question concerning the likelihood of an outright surrender.
48Significantly, Jean has worked long and hard to establish herself, her son, and her mother in this country. Lorna is dependent on Jean for her support. I conclude that there is a strong probability that neither would do anything to jeopardize all that Jean has accomplished in this country. In my view, both the flight risk posed by the prospect of the death penalty and any risk that the sureties would fail to fulfill their obligations because of it can be minimized by requiring Mr. Raghoonanan's arrest or surrender into custody prior to the Minister's surrender decision.
49In summary, I am satisfied that, provided appropriate conditions are imposed, Mr. Raghoonanan has established that he will surrender into custody.
50Fourth, turning to the third branch of the test, I conclude that four important considerations militate in favour of Mr. Raghoonanan's release.
51One, although Mr. Raghoonanan has been committed for extradition, unlike in the ordinary situation of bail pending appeal, the presumption of innocence remains operative, as does the Charter right not to be denied reasonable bail without just cause. [See Note 4 at end of document]
52Two, to the extent that it has been disclosed, the prosecution's case against Mr. Raghoonanan rests primarily on the testimony of a witness who has provided contradictory and piecemeal statements and who has been granted immunity from prosecution. While I would not describe the prosecution's case against Mr. Raghoonanan as frail, I conclude that it is less than formidable.
53Three, Mr. Raghoonanan has raised what I would describe as a very serious issue for the Minister's consideration. Again, without speculating on the Minister's ultimate decision, Mr. Raghoonanan's submissions raise a very serious issue concerning whether a surrender order will be made. [page476]
54Four, although he waived the time limit in s. 40 of the Act for the Minister's surrender decision in order to secure an extension of time for making his submissions to the Minister, Mr. Raghoonanan has now been waiting for the Minister's decision for more than 14 months. Counsel for the respondent advises that the Minister is actively considering this matter. However, the outer limit under the Act for the Minister's surrender decision is 150 days [See Note 5 at end of document] from the date of committal.
55Absent a waiver, in default of a surrender decision within the stipulated time periods, a detained person is entitled to apply, under s. 69 of the Act, for an order that he be discharged out of custody. Although a waiver was given in this case, I do not consider that that means it is therefore unnecessary that the Minister's surrender decision be made in a timely way. Excluding the time frame required for Mr. Raghoonanan['s] submissions, the elapsed time in this case is almost three times the usual outer limit, and there is no indication of when the Minister's surrender decision will be forthcoming. I conclude that the continuing delay is one of the factors weighing in favour of a release order.
56Taking these four considerations into account, I am satisfied that Mr. Raghoonanan has demonstrated that the public interest considerations favouring his release outweigh those favouring his detention, and that his continued detention pending the Minister's surrender decision is not necessary in the public interest.
(ii) Application for release pending appeal of the committal order
57I have decided to adjourn Mr. Raghoonanan's application for bail pending his appeal of the committal order for two reasons. First, in my view, if his appeal from the committal order meets the test of "not frivolous", it does so barely. Second, I have concluded that the risk of flight could change significantly based on the Minister's surrender decision, and that Mr. Raghoonanan should surrender as a condition of bail pending that decision. In these circumstances, it is more appropriate that the application for bail pending appeal be disposed after the Minister's surrender decision is made. [page477]
Disposition
58Mr. Raghoonanan's application for bail pending the Minister's surrender decision is granted on terms to be settled following submissions of counsel. The release order shall not be effective until the terms of release are settled. Counsel were to submit proposed conditions for release in any event. If deemed appropriate, counsel may seek an appointment for an attendance through the registrar of this court. Any such attendance may be in person or by conference call.
59Mr. Raghoonanan's application for bail pending appeal is adjourned to no fixed date returnable on two days' notice following the Minister's surrender decision.
Application for bail pending surrender decision granted; application for bail pending appeal adjourned.
Notes
Note 1: United States of America v. Sheppard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, 70 D.L.R. (3d) 136.
Note 2: On October 13, 2000, the Offences Against the Person (Amendment) (No. 2) Act was enacted. It apparently creates three categories of murder, only one of which carries a mandatory sentence of death. However, in his submissions to the Minister Mr. Raghoonanan claims that the new law will make no difference in this case because, even if the new law applies, capital murder includes contract killings and the murder of a witness.
Note 3: There is a statement in the November 18, 1999 letter from the Attoreny General of Trinidad requesting that a provisional arrest warrant be issued that "Leslie Huggins and Junior Phillip are in custody for the murder of Thackoor Boodram, Dole Chadee's brother. When these two men were arrested for the murder of Thackoor Boodram, Simon Raghoonanan left Trinidad for Canada". However, it is not clear that this was intended as a suggestion that Mr. Raghoonanan fled as a result of these arrests. In any event, there is no evidence or particulars in the record supporting such an inference nor any response to Mr. Raghoonanan's assertion that he applied to return to Canada on October 31, 1996 and that his application required clearance from Trinidadian police.
Note 4: Canadian Charter of Rights and Freedoms, s. 11(e), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11.
Note 5: Section 40(1) of the Act prescribes an initial period of 90 days for the surrender decision. Section 40(5)(b) allows the Minister to extend that time frame for one additional period, not exceeding 60 days. Although s. 41(1) allows the Minister to postpone the surrender decision pending appeal of the committal order on filing a notice of postponement with the court of appeal within the time period stipulated in s. 40(1), there is no indication that that was done in this case.