Court of Appeal for Ontario
Date: 2017-02-08 Docket: M47407 Judge: Laskin J.A. (In Chambers)
Between
The Attorney General of Canada on behalf of the United States of America Responding Party
and
Delroy McGowan Applicant
Counsel
James Lockyer and Gabriel Gross-Stein, for the applicant
Adrienne Rice, for the responding party
Heard: January 23, 2017
Endorsement
1Delroy McGowan has been committed for extradition. He applied under s. 20(b) of the Extradition Act for bail pending the Minister's surrender decision. On January 23, 2017, I granted him bail with reasons to follow. These are my reasons.
A. Background
2The background is unusual. In 2001, McGowan was charged in Cook County, Illinois with possession of and trafficking in 105 kilograms of marijuana. He attended court dates until early May 2004. Then he received advice from his counsel that if convicted, he could face 30 to 60 years in jail. He fled to Jamaica and in November 2004, he was convicted in his absence. In February 2005, he was sentenced to 16 years in custody, again in his absence.
3In 2006, McGowan immigrated to Canada and has been living here ever since in Brampton, Ontario. In 2009, he became a Canadian citizen. He is engaged to be married, and in 2014, he and his fiancée bought a house together. They have extensive family in the Brampton area. Until these present proceedings, McGowan worked as a train master for CN. He is now 44 years old. Apart from his convictions in Illinois, he has no criminal record.
B. Extradition Proceedings
4In April 2016, McGowan's mother died in Jamaica. He went to renew his passport so he could go to the funeral. He was then arrested under the Extradition Act.
5On June 10, 2016, Durno J. released McGowan on a recognizance of bail in the amount of $750,000 pending his committal hearing. He has five sureties, four relatives of his and his fiancée. He has complied with all of the conditions of his release.
6On January 23, 2017, McGowan consented to his committal for extradition. He now seeks bail pending the Minister's surrender decision.
C. Discussion
7Under s. 20 of the Extradition Act, the criteria for bail in s. 679 of the Criminal Code apply "with any modifications that the circumstances require". The criteria for bail under s. 679(3) of the Code are threefold. McGowan must show:
The application – in his case his request not to be surrendered for extradition – is not frivolous;
He will surrender himself into custody when ordered; and
His detention is not necessary in the public interest.
8I was satisfied McGowan met this three-part test.
(a) McGowan's application is not frivolous
9In the typical application for bail pending appeal of a committal order, or pending the Minister's surrender decision, the applicant has not yet been convicted. This case is different. McGowan has been convicted, which may suggest that his position on the merits is not strong. I accept that to be so. But although his request not to be surrendered may not be strong, I cannot say it is frivolous. The Minister has a broad discretion under s. 44(1)(a) of the Extradition Act to refuse to make a surrender order if satisfied that the order "would be unjust or oppressive having regard to all the relevant circumstances". Here, those circumstances include:
McGowan was tried and sentenced in his absence, a procedure not permitted under Canadian law;
Section 47(b) of the Extradition Act specifically provides that the Minister may refuse to make a surrender order if the person was convicted in his or her absence and could not, on surrender, have the case reviewed. Admittedly McGowan was convicted in his absence because he chose not to appear for his trial. Moreover, on the material submitted to me it is unclear whether, if surrendered, McGowan could have his case reviewed in Illinois. Still, I cannot dismiss out of hand the relevance of s. 47(b) to the Minister's surrender decision;
The sentence of 16 years for a marijuana offence seems high, despite the large quantity of the drug involved;
McGowan is a Canadian citizen and has been a contributing member of the community with substantial family support for a decade.
(b) McGowan will surrender into custody when ordered
10In one sense, as the Crown argued, McGowan has been a fugitive from justice for over a decade. But I am satisfied he will surrender himself into custody if required to do so.
11He appeared for his extradition hearing and consented to committal knowing he may be sent back to the United States. He has complied fully with his terms of release. Durno J., in lengthy reasons, found McGowan "to be a candid and truthful witness". Durno J. also found McGowan's sureties to be "terrific""diligent", and "exceptional". He especially found McGowan's cousin Stafford Lowe, a school vice-principal, to be a person who would ensure that all the sureties and McGowan himself were fulfilling their obligations. Moreover, McGowan is subject to electronic monitoring and has no passport. He is not a flight risk.
(c) McGowan's detention is not necessary in the public interest
12After careful consideration, and taking account of Canada's obligations to the United States in extradition proceedings, Durno J. concluded that McGowan's detention was not necessary to achieve the purpose of maintaining confidence in the administration of justice. Durno J. reached that conclusion likely knowing that McGowan's committal for extradition was inevitable.
13I see no reason to second guess Durno J.'s conclusion, especially in the light of his strong findings on McGowan's credibility and the credibility of McGowan's sureties. Moreover, McGowan has been living in Ontario for over ten years. Up until last April, no extradition proceedings were taken against him. The public interest would not be adversely affected if McGowan remained on bail for a few more months as the Minister considers her surrender decision.
D. Conclusion
14McGowan is released on bail pending the Minister's surrender decision on the terms of the release order, which I have already signed.
"John Laskin J.A."
1S.C. 1999, c. 18.