COURT OF APPEAL FOR ONTARIO

DATE: 20000202

DOCKET: M25327

RE: THE UNITED STATES OF AMERICA (Extradition
Partner/Applicant) and KWOK YEUNG CHAN, a.k.a OI,
a.k.a. CHESTER, a.k.a. AH YEUNG (Person
Sought/Respondent)

BEFORE: SHARPE J.A. (IN CHAMBERS)

COUNSEL: H. Piafksy
For the Extradition Partner/Applicant,
the United States of America

Brian Greenspan and Joseph Di Luca
For the Person Sought/Respondent

HEARD: February 1, 2000

E N D O R S E M E N T

[1] The respondent was arrested on a warrant of apprehension issued pursuant to the Extradition Act, S.C. 1999 on December 3, 1999. The respondent was released on January 18, 2000 by order of LaForme J. sitting as an extradition bail hearing judge. The Attorney General of Canada, on behalf of the United States, seeks review of the release order pursuant to s.18(2) of the Extradition Act, supra. It provides as follows:

18(2) A decision respecting judicial interim release may be reviewed by a judge of the court of appeal and that judge may

(a) confirm the decision;

(b) vary the decision; or

(c) substitute any other decision that, in the judge’s opinion, should have been made.

[2] This is a new provision and counsel for the United States was unable to provide me with any authority providing guidance as to the standard of review. It would appear to me that by way of analogy to the review of judicial interim release or detention orders, there is an onus upon the applicant to demonstrate an error in principle to justify review: See Ewaschuk, Criminal Pleadings and Practice in Canada (2d ed.) Vol. I, para. 6:1400. The issue, accordingly, is not whether I would grant bail if the matter came before me at first instance, but rather, whether the applicant can demonstrate reviewable error on the part of LaForme J.

[3] The respondent was arrested in Toronto in 1997 and charged with importing heroin and conspiracy to import heroin. He was granted judicial interim release with respect to those charges. The respondent was further charged with various drug offences in Vancouver in December 1999. The time frame for the Vancouver charges spans from April 26, 1998 to December 6, 1998. It would appear that the United States charges forming the basis for the extradition proceedings, span the period of June to July 1998 and overlap with the Vancouver charges in that they arise from the same conspiracy.

[4] It is common ground that the judicial interim release provisions of the Criminal Code apply by analogy to extradition. The applicant, United States, submits that LaForme J. failed to apply the reverse onus provision of s.515(6) which are applicable to the respondent for two reasons. First, the respondent is charged with a serious drug offence punishable by imprisonment for life (s.516(6)(d)) and secondly, he is charged with an offence alleged to have been committed while he was at large after being released in respect of another indictable offence (s.516(6)(a)).

[5] I do not accept the submission that LaForme J. failed to apply the reverse onus provision. It was conceded by counsel for the United States that at the extradition bail hearing, it was common ground between all counsel that the reverse onus provision applied. The case was presented and argued on that basis and I can see nothing in the reasons of LaForme J. to indicate that he failed to perceive that the applicant bore the onus.

[6] Nor am I persuaded that , on the facts, it was not open to LaForme J. to conclude that the reverse onus provision was satisfied. The reverse onus provision applied to the respondent when he was granted judicial interim release on the Toronto charges in 1997. It applied again when he was released on the Vancouver charges in 1999. The trial on the Toronto charges is scheduled to commence next week and a trial date in May 2000 has been set for the Vancouver charges. LaForme J. was faced with a situation where on two prior occasions, faced with the same reverse onus provision, the respondent was given judicial interim release by posting substantial sureties. Despite the gravity of the charges he faces and the virtual certainty of a lengthy term of imprisonment if he is convicted, the respondent has not fled.

[7] In my view, it was open on this record for LaForme J. to reach the conclusion that the respondent had demonstrated that the extradition request by the United States was not a sufficient additional factor to warrant his detention. The facts relied upon by the applicant as justifying detention date from 1998 and, presumably, were available to the authorities in Vancouver when judicial interim release was granted on those charges. The trial of the respondent on the Toronto charges will start within days. He is subject to relatively strict bail conditions and he remains very much in the sights of the Canadian authorities.

[8] On these facts, I cannot say that LaForme J. lacked a sufficient basis to conclude that the respondent does not pose a significant flight risk, particularly as there are now significant additional sureties from whom LaForme J. heard viva voce evidence.

[9] Given the overlap between the Vancouver and American charges and the fact that the evidence now relied upon to show the alleged criminal network of the respondent was previously available, I am not persuaded that LaForme J. erred in rejecting the argument that the respondent should now be detained on the secondary ground.

[10] Finally, I find the contention that the respondent should be detained on the tertiary ground of satisfying Canada’s international obligations to be unpersuasive. The Canadian authorities did not seek review of the judicial interim release orders on the Canadian charges. I fail to see why the situation should suddenly and dramatically change at the instance of another state, given the apparent link between the foreign charges and the charges pending in this country and in view of the fact that trial on one set of charges here is imminent.

[11] For these reasons, the application for review of the order of LaForme J. is dismissed.

“Robert J. Sharpe J.A.”