DATE: 20050106

DOCKET: M32021

COURT OF APPEAL FOR ONTARIO

IN THE MATTER of an Application for Interim Judicial Release Pending the Applicant’s Extradition hearing pursuant to section 18(2) of the Extradition Act.

B E T W E E N :

THE UNITED STATES OF AMERICA

Milica Potrebic for the responding party

Respondent

• and -

JOSEPH C. PANNELL, A.K.A. JOSEPH COLEMAN PANNELL; JOSEPH CHAPMAN PANNELL; YUSUF PANNELL; YUSUF; JOE NATHAN CHAPMAN; DOUGLAS NORBERG; DOUGLAS GARY FREEMAN

Julian N. Falconer and Julian Roy for the moving party

Applicant

Heard: December 23, 2004

A review, pursuant to section 18(2) of the Extradition Act, S.C. 1999, c. 18, of the order of Justice Ian V. B. Nordheimer dated November 8, 2004.

MACPHERSON J.A. (In Chambers):

A. OVERVIEW

[1] The respondent, the United States of America (“the respondent” or “the United States”), seeks the extradition of the applicant, Joseph Pannell (“the applicant” or “Pannell”), for the attempted murder of Terrence Knox, a police officer, in Chicago, Illinois on March 7, 1969. Pannell was arrested in Toronto on July 30, 2004.

[2] Pannell applied for judicial interim release, which was denied by Justice Ian Nordheimer on August 25, 2004. He applied for a review of the detention order, citing “material change of circumstances”. Nordheimer J. dismissed the application on November 8, 2004.

[3] Pannell applies to this court for a further review of the detention order pursuant to s. 18(2) of the Extradition Act, S.C. 1999, c. 18, which provides:

(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.

[4] Pannell seeks an order vacating the detention order made on November 8, 2004 and releasing him from custody on strict conditions, including house arrest, electronic monitoring and recognizance with substantial sureties, pending his extradition hearing.

B. FACTS

(1) The parties and the events

[5] The United States alleges that on March 7, 1969, Terrence Knox, then a 21-year-old police officer, was working in full uniform and driving a marked squad car while assigned to maintain security near Hirsch High School. He pulled his car to the sidewalk and asked 19-year-old Joseph Pannell why he was not in school. Pannell pulled out a handgun and fired several shots at Knox. One of the bullets severed an artery in Knox’s right arm, causing a permanent disability. Several eyewitnesses, including Knox, will testify that Pannell was the shooter.

[6] Pannell was arrested and charged with attempted murder, discharging a firearm with intent, aggravated assault, assaulting a police officer and carrying a concealed weapon.

[7] Pannell was released on bail on November 23, 1970, approximately 20 months after his arrest. He failed to appear in court on May 10, 1971 and a warrant was issued for his arrest. He was re-arrested on June 19, 1972 and was released on bail a second time. Once again, he failed to appear in court and another warrant was issued for his arrest.

[8] Sometime in 1974, Pannell entered Canada, using the name Douglas Gary Freeman (he told the Canadian police officers who detained him in July 2004 that he had chosen this name because he was a “free man” and was not held to any borders). He settled in Quebec and married Natercia Dasilva-Coelho. Prior to the marriage, Pannell told Ms. Dasilva-Coelho his real name and that he had shot a police officer in Chicago, albeit in self-defence. The children were also told about their father’s past.

[9] In 1987, Pannell and his family moved to Mississauga. He worked in the Toronto Reference Library until his arrest last summer. He raised his family, participated in various community activities, and was a law-abiding citizen (with the exception of a single customs violation, relating to a camera, for which he received a $300 fine in 1983).

[10] The minor customs violation proved to be Pannell’s downfall 21 years later. He was fingerprinted in 1983. In a ‘cold case’ investigation in April 2004, Interpol Washington sent Pannell’s fingerprints to the RCMP. When they matched with Freeman’s prints, Pannell was arrested and the United States sought his extradition.

(2) The bail proceedings

(a) Round 1

[11] Pannell applied for judicial interim release. By virtue of s. 19 of the Extradition Act, the application fell to be determined under s. 515(10) of the Criminal Code:

515(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution's case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.

[12] The application judge dismissed the application on the basis of the primary ground. He noted that Pannell was accused of very serious crimes in the United States, with a potential sentence of “up to 20 years in prison”. He observed that, on the basis of eyewitness evidence, including that of Officer Knox, and an alleged confession to military authorities when Pannell was apprehended for being AWOL from the navy, “a conviction on the charges is a very real possibility.”

[13] The application judge dealt with the large number of sureties who were prepared to support Pannell, including his wife, Ms. DaSilva-Coelho. He bluntly rejected Ms. DaSilva-Coelho as a surety:

It would, in my view, be irresponsible to rely on Ms. DaSilva Coelho to ensure that her husband would now obey the authority of this court when she has spent decades assisting him in deceiving virtually every other authority with whom they have had contact.

He also remarked that none of the sureties proposed to actually supervise Pannell if he were released.

[14] The application judge concluded his reasons with this summary:

In my view, given the history of this matter and the lack of any effective plan of supervision, serious concerns exist under the primary ground. Those concerns provide a rational and demonstrable basis for ordering Mr. Pannell to be detained until the extradition hearing can be held. A detention order will, therefore, issue.

(b) Round 2

[15] Pannell did not seek to review the initial detention order in this court. Instead, two-and-a-half months later, Pannell returned to the application judge with a request that he review his decision because of a material change in circumstances. In support of the application, Pannell proposed a release plan with two major changes.

[16] First, Pannell had taken seriously the application judge’s criticism about the absence of supervision in the initial plan. His remedy was a plan wherein his mother-in-law would move from Quebec and live with the family in Mississauga. In addition, three of Pannell’s friends agreed to live in the family home on occasion to provide supervision. The intended result was that one of the four sureties would live in the home, and supervise Pannell’s house arrest, at all times.

[17] Second, Pannell agreed to wear an electronic monitoring device (an ankle bracelet) installed by JEMTEC Inc., a private security company. The device would sound an alarm if Pannell moved outside 150 feet from his home. If the alarm sounded, JEMTEC would take a maximum of 15 minutes to investigate whether there was an innocent explanation (e.g. equipment malfunctioning), and then would call the police. In a letter to Pannell’s counsel, Inspector Bryan Graham of Peel Regional Police stated:

The Peel Regional Police would assign the Jemtec Inc. report as a ‘Priority 1’ and dispatch it accordingly. It is the policy of this police service to dispatch Priority 1 calls within five (5) minutes of receipt from the complainant. I can not with any degree of certainty or assurance provide the Court with an anticipated response time to the dispatched call for service.

[18] The application judge carefully considered the two major changes in Pannell’s proposed release plan. In the end, he did not think that they constituted a material change in circumstances sufficient to justify vacating the original detention order.

[19] Concerning the lynchpin of the supervision component of the revised release plan, the application judge said:

In this case, I have no valid basis upon which to conclude that the applicant would be amenable to the supervision of his mother-in-law. While it is said that the applicant and the mother-in-law have developed a relationship over the past twenty or so years since the applicant married her daughter, it must be remembered that that relationship was based on a fundamental deception. It is a deception that the daughter aided in.

[20] The application judge also rejected the submission that the electronic monitoring device represented a material change in circumstances relevant to the primary ground (the flight issue). He said:

The simple fact is that electronic monitoring does not ensure the attendance of an accused person in court. To the contrary, all it does is alert JEMTEC, and thereafter the authorities, that the subject has possibly fled or otherwise disappeared. If that occurs, electronic monitoring does not assist in locating the subject nor does it reveal his or her plans. In other words, if there are concerns under the primary ground, electronic monitoring does not alleviate those concerns. It merely informs of the breach in much the same way that a capable surety would.

[21] The application judge concluded that, as on the original application, Pannell continued to represent “a significant flight risk”. Hence he dismissed the application for review of the detention order.

[22] Pursuant to s. 18(2) of the Extradition Act, Pannell seeks a further review of the detention order.

C. ISSUE

[23] The sole issue on this application is whether the application judge erred by continuing, on November 8, 2004, the detention order he originally made against the applicant on August 25, 2004.

D. ANALYSIS

[24] The standard of review on this application requires the applicant to demonstrate an error in principle in the reasons of the application judge: see United States of America v. Chan (2002), 2000 5619 (ON CA), 144 C.C.C. (3d) 93 (Ont. C.A., per Sharpe J.A.) and United States of America v. Le, [2004] O.J. No. 3105 (C.A., per Lang J.A.). The consequence of this standard of review is that, as expressed by Sharpe J.A. in Chan at para. 2, “[t]he 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 [the application judge].”

[25] I note again that the applicant did not seek a review in this court of the original detention order dated August 25, 2004. However, he does seek a review of the continuation of the detention order on November 8, 2004. In so doing, the applicant asserts that the application judge committed two errors in principle in his reasons in support of continuing the detention order.

[26] First, the applicant submits that the application judge erred by failing to recognize that the proposed surety regime placed before him in November was a full and successful response to his expressed concerns (in his August 25 reasons) about inadequate supervision of the applicant. In particular, the applicant contends, the willingness of the applicant’s mother-in-law to move from Quebec to live in the family home in Mississauga, coupled with her commitment of $100,000 as a surety, introduces a significant supervision component to the virtual house arrest of the applicant.

[27] I do not accept this submission. I do not think that the application judge’s rejection of the modified surety regime amounts to an error in principle. The reality is that the applicant faces serious criminal charges in the United States relating to a violent crime, which had disastrous consequences for the victim. Moreover, on two separate occasions, the applicant jumped bail in the United States in order to avoid a trial.

[28] It is true that there is much to be said for the way the applicant has lived his life for 30 years in Canada. He is married to a supportive Canadian wife and has four children. He has worked steadily through the years and has contributed to his community. However, it cannot be forgotten that the anchor of these good aspects of the applicant’s life is planned and deliberate flight from the judicial process in the United States, coupled with profound deception and deceit in Canada.

[29] The applicant contends that the second error in principle committed by the application judge was his failure to recognize that the electronic monitoring device which the applicant would wear at all times would substantially inhibit his ability to leave Canada. Central to this contention is the applicant’s submission that the application judge’s analysis on this issue is inconsistent with the analysis of Lang J.A. in Le.

[30] In Le, the application judge granted bail to a woman who was sought for extradition to the United States for extensive drug-related activities, including sophisticated international money laundering. A component of the release plan was the same electronic monitoring device in issue in this review.

[31] The United States sought a review of the release order pursuant to s. 18(2) of the Extradition Act. Lang J.A. affirmed the release order. The applicant contends that Lang J.A.’s reasons amount to a specific endorsement of the use of electronic monitoring as a means of addressing the primary ground.

[32] I disagree. In my view, in her reasons Lang J.A. did nothing more than conclude that the application judge did not commit an error in principle in his assessment of all the factors, including electronic monitoring, relating to the potential release of Ms. Le. This is clear from the language used by Lang J.A. in the exercise of her statutory review jurisdiction. She said, at paras. 5 and 8:

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.

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.

[33] In the end, there is no inconsistency between Le and the application judge’s decision in this case. In Le, a constellation of factors, including electronic monitoring, led an application judge to make a release order, which was in turn upheld on review by this court. In the present case, a different constellation of factors, although including electronic monitoring, led an application judge to make a detention order. The different circumstances of the alleged criminals and their crimes, and the different components of the proposed release plans, permit such results.

[34] In addition, I do not see any error in principle in the application judge’s description of the limitations of an electronic monitoring device – namely, the device does not restrict the movement of the person wearing it and does not assist in locating a person who decides to flee. Indeed, this description is supported by documentation from both the private company supplying the device and Peel Regional Police.

[35] JEMTEC’s own contract contains an explicit disclaimer:

2. Limitation of JEMTEC’s Legal Liability: …

JEMTEC does not make any warranties whatsoever about the capacity of any electronic monitoring system to prevent victimization or crime, or to restrict the Participant’s movement in any way [emphasis in original].

[36] In a letter from Peel Regional Police to the applicant’s counsel, Inspector Bryan Graham concluded with this observation:

It is the position of Peel Regional Police that even under house arrest with electronic monitoring, there is both opportunity and time for an individual to escape prior to police being notified and responding.

[37] For these reasons, I do not think that the application judge made any error in principle in reaching the conclusion that the applicant “represents a significant flight risk” and ordering his detention on the primary ground.

[38] I conclude with a final observation. An extradition hearing is not a criminal trial. Moreover, an extradition hearing must proceed expeditiously. These two points have been articulated often by the Supreme Court of Canada. For example, in Re McVey, 1992 48 (SCC), [1992] 3 S.C.R. 475 at 551, La Forest J. stated that, “extradition proceedings are not trials. They are intended to be expeditious procedures to determine whether a trial should be held.”

[39] In a similar vein, in United States of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462 at 514, Cory and Iacobucci JJ. said:

A judge hearing an application for extradition has an important role to fulfil. Yet it cannot be forgotten that the hearing is intended to be an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canada’s international obligations.

[40] I point to these statements in order to ground this observation – there is no reason at all for the applicant to languish in a Canadian jail while he contests, as is his right, the extradition request. The application judge stated, “In this case, there is no apparent reason why the extradition proceeding cannot be determined in a matter of months as opposed to years.”

[41] I agree with this statement. The Minister of Justice approved the authority to proceed, pursuant to s. 15 of the Extradition Act, on October 25, 2004. In response to a question at this review hearing on December 23, 2004 about when the judicial hearing could proceed from the perspective of the respondent, counsel responded: “Now.” It is clear, therefore, that although the applicant is currently detained pending the extradition process, the duration of that process can be very short indeed, and is substantially within the applicant’s own control.

E. DISPOSITION

[42] The application is dismissed.

RELEASED: January 6, 2005 (“JCM”)

“J. C. MacPherson J.A.”