DATE: 20040722

DOCKET: M31457

COURT OF APPEAL FOR ONTARIO

RE: THE UNITED STATES OF AMERICA (Extradition Partner/ Applicant) – and – THI PHUONG MAI LE (Person Sought/ Respondent)

BEFORE: LANG J.A. (in chambers)

COUNSEL: Nancy Dennison for the applicant

Mark Ertel for the respondent

Jacqueline V. Loignon for the intervener Ottawa Police Service

HEARD: July 15, 2004

RELEASED ORALLY: July 15, 2004

Application for review of the interim release order of Justice Gerald R. Morin of the Superior Court of Justice dated June 9, 2004.

E N D O R S E M E N T

[1] This is a review of the decision of the extradition/bail judge ordering Thi Phuong Mai Le’s (“Mai Le”) release pending determination of allegations that she has been involved in extensive drug-related activities, including sophisticated international money laundering. It is agreed that, to succeed, the applicant must demonstrate that the judge made an error in principle. I see no such error.

[2] The extradition/bail judge carefully and fairly reviewed the seriousness of the allegations against Mai Le. He was entitled to conclude, and did conclude, that the allegations against her did not include allegations that she participated in violent activities. Indeed, the judge particularly noted that Mai Le discouraged violence. Although violence was alleged against others in the organization, they were not connected to Mai Le.

[3] In considering the grounds required for Mai Le’s release, the judge gave particular attention to the primary ground. In doing so, he was fully cognizant of the particular considerations at play in drug trafficking cases and the marked danger that an accused so charged will abscond. With the factors in R. v. Pearson (1992), 77 C.C.C. (3d) 124 (S.C.C.) in mind, he carefully crafted terms of release that would minimize the risk of flight during the four to five years it will take before these allegations are determined. The detailed terms of release satisfied the judge that Mai Le was not a significant flight risk. She proposed sureties whom the judge found to be impressive and who were prepared to put virtually all their assets on the line to demonstrate their confidence in their ability to supervise Mai Le.

[4] As I read the judge’s reasons – and my interpretation is confirmed by counsel for the respondent – while Mai Le is on release she would, at all times, be under the supervision of one surety while in the house. When not in the house, for the purpose of attending medical and legal appointments, she would be accompanied by, and under the supervision of, two sureties.

[5] As part of the plan to prevent flight, the judge heard evidence about the suggested further safeguard of electronic monitoring, which it was proposed would be undertaken by the private company that provides such services for the Ministry of Community Safety and Correctional Services in relation to probation and the Temporary Absence Program. The judge adjourned the hearing to garner more information about the proposed electronic monitoring and to ensure its suitability. After comprehensive consideration, and in the particular circumstances of this case, the judge was satisfied with the plan in its entirety, including the electronic monitoring component.

[6] With respect to the particulars of electronic monitoring, questions arose as to how the Ottawa Police Service would respond to a call from the monitoring station indicating the possibility that Mai Le had left her area of confinement. Counsel for the respondent concedes, and I agree, that an extradition/bail judge does not have jurisdiction to order the local police force to respond to such a call in a particular manner. Indeed, the terms before me this morning do not order any particular response by the Ottawa Police Service and, for clarity, the judge himself had suggested the addition of the words “at [the police] option”. While in the process of gathering information, the judge required the Ottawa Police Service to engage in a discussion with the surveillance company to resolve these issues. With the benefit of hindsight, that might have been accomplished by simply calling evidence of how the police would respond to a call from the monitoring station. As I am advised by counsel, this would likely be similar to the response to a call received from a surety.

[7] In the result, I do not accept that the judge exceeded his jurisdiction. To ensure that there is no misunderstanding in this regard, the terms of the release should not require the Ottawa Police Service to take any specific action upon receipt of a call from the monitoring station. It is sufficient that the police have given evidence that they would respond to it as a “Priority 2” call. As such, the police would attend at the house within fifteen minutes to two hours, after receiving the alert, depending on the circumstances then prevailing. The judge was satisfied that such a response would appropriately minimize the risk of flight. Of course, if the electronic monitoring, which is indeed novel for this purpose, posed practical problems in implementation for the Ottawa Police Service, such problems could be addressed by bringing them to the court’s attention for resolution or reconsideration.

[8] I do not see the use of electronic monitoring as analogous to the U.S. bail bondsman system or giving rise to the limitations inherent in that system. The sureties retain primary responsibility for Mai Le. Electronic monitoring is merely a means of taking advantage of modern technology to implement maximum safeguards. Nor do I see the judge’s order – as suggested by the Crown – as delegating risk assessments to a private company or to the local police service. The judge has made the appropriate risk assessment himself and has set out his reasons for concluding that the risk of flight, given the parameters of the terms of release, is acceptable.

[9] Further, I do not accept that the release order favours a “rich” accused, who would be released, while a “poor” accused would be detained. The cost of electronic monitoring is relatively modest. Further, monetary security is an accepted part of decisions about judicial interim release, particularly with regard to sureties.

[10] Despite the submissions of the appellant, it is my view that the judge also considered the secondary and tertiary grounds. That is evident from the transcript and from the conditions of release that he imposed. Out of further caution, I would add an additional term precluding Mai Le from accessing the Internet.

[11] For these reasons, this review is dismissed, subject to the minor modifications made to the terms of release with the input from counsel at the conclusion of this review, and also subject to any further fine tuning of those terms, which is left to the extradition/bail judge. For clarity, a copy of the terms of release is annexed.

Signed: “Susan E. Lang J.A.”