COURT OF APPEAL FOR ONTARIO
Trotter J.A. (Motion Judge)
BETWEEN
The Attorney General of Canada on Behalf of the United States of America
Respondent
and
Daniel Likala Emony
Applicant
Jeylan Davies, for the applicant
Adrienne Rice, for the respondent
Heard: January 8, 2025
ENDORSEMENT
A. introduction
1Daniel Likala Emony, the applicant, is wanted in the United States on criminal charges. He has been committed for extradition. He awaits the decision of the Minister of Justice, who must decide whether the applicant should be surrendered to the United States. A decision is expected on March 15, 2025. The applicant seeks bail pending the Minister’s decision.
2The following reasons explain why the application is dismissed.
B. background
3The applicant is 32 years old. He was born in the Democratic Republic of Congo (“Congo”). He moved to the United States in 2013. In his affidavit, the applicant says that he was involved in anti-government activism in Congo, which he continued to engage in after he moved to the United States. He and his family have been the subject of threats as a result of his activism.
4The applicant fled the United States in 2021. He says that someone broke into his house and threatened him and his siblings with a knife. He was told it was his last chance to leave the United States or he would be killed. This caused the applicant to “genuinely fear for [his] life”. He claims he did not flee the United States for any other reason. However, on August 19, 2021, just before his arrival in Canada on September 9, 2021, a warrant was issued for his arrest on criminal charges in the United States.
5The applicant has applied for asylum/refugee status in Canada. His claim has been refused. His deportation order has been temporarily suspended. The applicant previously sought asylum in the United States. In his affidavit on this application, the applicant states that he has attempted to cancel that application, but claims, “[t]his is not an easy process and there have been some issues along the way.”
C. the charges in the united states
6The charges originate in the State of Virginia. The applicant was investigated by the police after he collided with another car and failed to stop. When he was stopped by the police, the applicant did not have his driver’s licence with him. He identified himself to the police as “Gregory Emony,” which is his brother’s name. He was charged with driving under the influence of alcohol, and other offences.
7The applicant went to trial under his brother’s name. He was found guilty in his brother’s name. He reported to the United States Probation Office and completed multiple documents in his brother’s name.
8This scenario came to light when Gregory Emony attempted to renew his driver’s licence, only to discover that he had a criminal conviction for driving while under the influence of alcohol.
9The applicant is charged in an indictment in the State of Virginia with contravening the following provisions of Title 18 of the United States Code: false statements (Section 1001(a)(2)); two counts of aggravated identity theft (Section 1028A(a)(1)); perjury (Section 1623); and false statements (Section 1001(a)(2)).
10The applicant was committed for extradition on August 30, 2024, on a single count of obstructing justice, contrary to s. 139 of the Criminal Code, R.S.C. 1985, c. C-46: see Extradition Act, S.C. 1999, c. 18, s. 29. He now awaits the decision of the Minister as to whether he will be surrendered. He has made written submissions to the Minister under s. 44(1)(a) of the Extradition Act, asking that he not be surrendered on the basis that it would be unjust or oppressive. He fears that, if he is surrendered to the United States, his life will be in danger there. Further, given his lack of status, he fears he will be deported to Congo by the United States authorities. As noted, the Minister has until March 15, 2025 to make his decision.
D. bail history
11The applicant was arrested on November 23, 2023 on a provisional arrest warrant: Extradition Act, s. 13. He has been detained in custody since then.
12The applicant sought bail prior to his extradition hearing. On December 6, 2023, Phillips J. of the Ontario Superior Court denied bail. In oral reasons, Phillips J. observed that the case against the applicant was “overwhelming”. He further found that the applicant was a significant flight risk who “has no interest in returning to the United States. Importantly, given his history, I see a likelihood that he will take what steps he can to frustrate the operation of the law.” The applicant’s release plan, which included electronic monitoring, was found to be insufficient.
13On April 17, 2024, the applicant applied to review his detention order under s. 18(2) of the Extradition Act before Parfett J. of the Ontario Superior Court. He proposed three sureties: his girlfriend, Kaitlin Daigle (now his fiancée); his aunt, Albertina Lieke; and his uncle, Dan Emony. Electronic monitoring was proposed again. Parfett J. found that there was a risk that the applicant would not only flee the jurisdiction but go “underground” within Canada. She was not satisfied that Ms. Daigle would be an appropriate surety. She found that Ms. Daigle misrepresented the stability of her relationship with the applicant in her affidavit.
14Ultimately, she denied bail on the primary, secondary, and tertiary grounds pursuant to s. 515(10) of the Criminal Code.
E. The current application for bail
(1) The Bail Plan
15The applicant proposes that he be released on a recognizance with Ms. Daigle as his surety. She is 27 years old and has no criminal record. She is prepared to pledge $10,000. She reports that she has been engaged to the applicant since February 2024. If released, the applicant would reside with her. The applicant is prepared to pledge $5,000.
16It is further proposed that the applicant be subject to electronic monitoring whereby he would wear two ankle monitors. One would be monitored by Recovery Science Corporation, which would send notifications to Ms. Daigle; the other would be monitored by Tratek Monitoring Services, which would send notifications to the police. Also, their home would be fitted with technology to confirm the applicant’s presence at the residence through fingerprint identification.
(2) The Legislative Framework
17The applicant seeks bail under s. 20(b) of the Extradition Act, which provides:
s. 20 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 section 40 to order the surrender of the person. [Emphasis added.]
18Section 679 of the Criminal Code is the provision under which bail pending appeal is sought in domestic criminal proceedings. Subsection (3) of that section provides:
(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;
(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.
19A central feature of bail applications under s. 679 of the Criminal Code is the termination of the presumption of innocence: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 17, at para. 35; R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), at p. 37. By contrast, someone in the applicant’s position, who has not been found guilty of any offence in the requesting state, is presumed innocent: Canada (Attorney General) v. Raghoonanan (2003), 2003 CanLII 52132 (ON CA), 63 O.R. (3d) 465 (C.A.), at para. 51; Schreiber v. Germany (Federal Republic), 2007 ONCA 80, at para. 10. Even so, as in the domestic context, an applicant under s. 20 of the Extradition Act bears the onus on a balance of probabilities: Canada (Attorney General) v. Kyeremeh, 2020 ONCA 438, 151 O.R. (3d) 522, at para. 17.
(3) Applying the Factors
(a) Section 679(3)(a): The Appeal Meets the “Not Frivolous” Threshold
20Conceptually, the application of this factor to extradition cases is unusual. Section 679 of the Criminal Code is a critical tool for an appellate court in carrying out its reviewing function of lower court decisions in criminal cases. But in this case, the applicant has consented to his committal for extradition – thus, there is nothing to review.
21In these circumstances, it is accepted that the “not frivolous” criterion is focused on the applicant’s submissions to the Minister of Justice. The applicant must demonstrate that the submissions fall within the purview of the Minister’s jurisdiction under the Extradition Act, and that they are not frivolous: Raghoonanan, at paras. 33, 38-39.
22The respondent fairly concedes that the applicant’s submissions are not frivolous. I agree. The applicant has met his onus on this factor.
(b) Section 679(3)(b): The Applicant Will Not Surrender into Custody
23Flight is a concern in many extradition cases. It is heightened where it is alleged that the person sought has fled the requesting state to avoid criminal justice consequences. Moreover, because of Canada’s international treaty obligations, judges must be more probing in deciding whether the person sought will surrender into custody in accordance with the terms of any bail order that is made: United States of America v. Edwards, 2010 BCCA 149, 288 B.C.A.C. 15, at para. 18; Thailand v. Saxena, 2006 BCCA 145, 224 B.C.A.C. 68, at para. 13.
24In domestic proceedings, at the pre-trial stage, the primary ground focuses on whether the accused person will appear in court for trial. On appeal, the focus is on surrendering into custody prior to the appeal being heard (or some other specified date). In the extradition context, at the post-committal stage, the applicant would be required to surrender into custody prior to the release of the Minister’s decision. But in each instance, the concern is not limited to the prospect of absconding or fleeing from the jurisdiction; it equally applies to the person disappearing within the jurisdiction of Canada – going “underground,” as Parfett J. put it. As Gillese J.A. said in United States v. Viscomi, 2016 ONCA 980, at para. 29: “flight is not limited to places outside of Canada.”
25The applicant has not met his onus on this ground. The applicant proposes Ms. Daigle as his surety. As noted, Parfett J. found her to be unsuitable for this role. Of course, this application is not a review of Parfett J.’s decision, and her finding is not binding on me. Nonetheless, it is valuable to have the views of such an experienced judge who saw Ms. Daigle testify first-hand.
26The applicant submits that things have changed and Ms. Daigle is now a suitable surety because of the additional length of time that they have been together. However, Parfett J. denied the applicant bail less than a year ago.
27As for the applicant’s proposal of electronic monitoring, courts have recognized that it is not a panacea in terms of flight prevention: United States of America v. Singh, 2014 ONCA 559, at para. 17. Electronic monitoring cannot prevent absconding; it only alerts the authorities to the situation as it is happening or at some point afterwards. In my view, this does not tip the balance in favour of release in this case.
28In all of the circumstances, nothing has changed in the applicant’s favour since his committal for extradition. If anything, his bail situation has worsened. Having been committed for extradition, he is but one step away from being surrendered to the United States, thereby increasing his incentive to flee: United States v. Sriskandarajah, 2011 ONCA 4, 280 O.A.C. 180, at para. 9.
29It is clear that the applicant has no desire to return to the United States. He came to Canada within weeks of an arrest warrant being issued by an American court. Moreover, the applicant has a poor track record in Canada. He failed to attend an important appointment with the Canada Border Services Agency. Before being arrested on the extradition warrant, he failed to keep the Agency apprised of his current address. He also failed to attend court in Kingston, Ontario on a street racing charge under the Highway Traffic Act, R.S.O. 1990, c. H.8.
30In addition to the very strong case against the applicant, one that Phillips J. aptly described as “overwhelming,” the applicant faces a lengthy term of imprisonment if convicted in the United States. At this hearing, I was advised that the applicant’s brother, Gregory Emony, will not be involved in the prosecution of his brother in Virginia. Whether that turns out to be the case, I accept the respondent’s submission that the case against the applicant is readily provable without Gregory Emony’s participation.
31In light of all of these circumstances, and in view of the applicant’s tenuous legal connection to Canada, the proposed release plan falls short of the mark.
32I dismiss the application for bail on this basis.
(c) Section 679(3)(c): Detention in the Public Interest
33Given my conclusion on the application of s. 679(3)(b), it is not necessary to consider the public interest ground in s. 679(3)(c).
F. disposition
34The application is dismissed.
“Gary Trotter J.A.”
