The Republic of France et al. v. Ouzghar [Indexed as: France v. Ouzghar]
95 O.R. (3d) 187
Court of Appeal for Ontario,
Doherty J.A.
February 13, 2009
Extradition -- Bail -- Bail pending appeal -- Bail pending application for leave to Supreme Court of Canada -- Applicant convicted in France of terrorism offence -- Appeal from order committing him for surrender to France and judicial review of surrender order dismissed -- Applicant's application for bail pending appeal granted pending leave application -- Applicant not flight risk -- Canadian accused being on bail for seven and one-half years -- Applicant's detention not necessary in public interest -- Bar for establishing that appeal is not "frivolous" lower where other two criteria for bail are met -- Application for leave to appeal raising viable question of law -- Application not "frivolous". [page188]
The applicant was convicted in absentia in France of a terrorism offence. His appeal from an order committing him for surrender and his application for judicial review of the surrender order were dismissed. He applied for leave to appeal to the Supreme Court of Canada and applied for bail pending appeal. The accused is a Canadian citizen and had been on bail for seven and a half years. The Crown argued that his release was not in the public interest as it might suggest that Canada was not taking its responsibilities in the effective worldwide prosecution of terrorism seriously.
Held, the bail application should be granted.
The applicant was not a flight risk. The only reason Canada had any cause to place him in custody was to facilitate his surrender to France. The applicant would not be made to surrender before his application for leave to appeal is determined so his detention pending that application would not facilitate his surrender to France. Therefore, the public interest in facilitating his surrender to the requesting state does not require his detention. Where the applicant has demonstrated that he is not a flight risk and that the public interest does not require his detention, recognition of the legitimate liberty interests at stake justifies setting a low bar when determining whether the applicant has shown that his application for leave to appeal is not frivolous. The application raised a viable question of law and there was some basis to think that the legal question could warrant leave to appeal. That was enough to establish that the application was not "frivolous".
APPLICATION for bail pending an appeal.
Cases referred to Germany v. Schreiber, [2007] O.J. No. 431, 2007 ONCA 80, 72 W.C.B. (2d) 366; United States of America v. Cotroni, 1989 106 (SCC), [1989] 1 S.C.R. 1469, [1989] S.C.J. No. 56, 96 N.R. 321, J.E. 89-920, 23 Q.A.C. 182, 48 C.C.C. (3d) 193, 42 C.R.R. 101, 7 W.C.B. (2d) 301; United States of America v. Fischbacher, [2008] O.J. No. 3029, 2008 ONCA 571, 239 O.A.C. 211, 235 C.C.C. (3d) 45, 78 W.C.B. (2d) 844 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 679(3) Supreme Court Act, R.S.C. 1985, c. S-26 Authorities referred to Sopinka, John, and Mark A. Gelowitz, The Conduct of an Appeal (Toronto: Butterworths, 1993)
John Norris and Brydie Bethell, for applicant. Nancy Dennison, for respondents.
[1] DOHERTY J.A.: -- The applicant, a Canadian citizen, is the subject of an extradition request from the Republic of France. He has been on bail without incident since November 30, 2001. The applicant was ordered committed for surrender in January 2007, and the Minister ordered him surrendered in January 2008. An appeal from the committal order and a judicial review of the surrender order were dismissed by a unanimous decision of this [page189] court released on January 23, 2009. The applicant has applied for leave to appeal from that decision in the Supreme Court of Canada. Best estimates are that the leave application will be determined some time in the next six months.
[2] The applicant applies for bail pending the proceedings in the Supreme Court of Canada. That application is governed by the criteria set out in s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46. The applicant must demonstrate that the application for leave to appeal is not frivolous, that he will surrender himself into custody in accordance with the terms of any release order and that his detention is not necessary in the public interest.
[3] The Crown submits that the applicant has failed to demonstrate that his application for leave to appeal to the Supreme Court of Canada is not frivolous. It is difficult for a judge of one court to make an informed assessment of the possibility of leave to appeal being granted by another court. Some cases are obvious candidates for leave, as for example, where the decision from which leave is sought is inconsistent with the decision of another provincial appellate court. That is not this case.
[4] Leave to appeal to the Supreme Court of Canada is of necessity granted sparingly. Leave will be refused in the vast majority of cases. The appellant has raised an arguable question of law in his application; however, more than that is needed to obtain leave: see Supreme Court Act, R.S.C. 1985, c. S-26, s. 40, John Sopinka and Mark Gelowitz, The Conduct of an Appeal (Toronto: Butterworths, 1993), at pp. 165-72.
[5] Mr. Norris argues that this application raises the same issue on which leave to appeal was recently granted in United States of America v. Fischbacher, 2008 ONCA 571, [2008] O.J. No. 3029 235, C.C.C. (3d) 45 (C.A.). This court's decision in this case does refer to a line of authority relied on in Fischbacher, supra. There are similarities in the legal issue raised on this appeal and the issue decided in Fischbacher. There are also significant differences in the two cases. The fact that leave to appeal has been granted in Fischbacher may give Mr. Norris a "leg up" on his application for leave to appeal in this case. I cannot say, however, how strong that "leg" may be.
[6] I find myself in this position. I cannot say that the applicant has no realistic chance of obtaining leave to appeal. However, beyond that, I cannot quantify his chances of obtaining leave to appeal. I propose to address the other two criteria relevant to bail and then to return to the argument that the application is not frivolous.
[7] The respondent does not argue that the applicant has failed to demonstrate that he will surrender into custody in accordance with the terms of any release order. He is a Canadian [page190] citizen and has been on bail for seven and a half years. He has complied with the terms of his bail, including the various surrender orders.
[8] The respondent does submit that the applicant has failed to demonstrate that his detention is not necessary in the public interest. The respondent argues that the applicant has been ordered surrendered in connection with terrorism-related offences. She argues that Canada, as a responsible member of the international community, must be seen as co-operating fully with other countries who seek to root out and prosecute those involved in terrorist activities. As I understand this argument, the respondent submits that the applicant's continued release on bail would somehow suggest that Canada does not take these matters as seriously as it should. Counsel relies on the well-known passages from the majority judgment of La Forest J. in United States of America v. Cotroni, 1989 106 (SCC), [1989] 1 S.C.R. 1469, [1989] S.C.J. No. 56, at paras. 28-29, in which he stressed the importance of Canada's responsibilities to co-operate in the effective prosecution of international crime in an ever- shrinking world.
[9] I accept the validity of the comment made in Cotroni. That observation seems to me, however, to speak more to the need for an effective and expeditious extradition process than to the question of whether the target of that process should be in or out of custody while the process runs its course.
[10] There is nothing in the record filed on this application, apart from the allegations made by the French authorities, to suggest that the applicant, if released, will commit crimes in Canada or elsewhere, or otherwise engage in any unlawful or dangerous activity. The applicant's track record during the many years that he has been on bail suggests to the contrary.
[11] Nor, as with a person who has been through the domestic criminal process, is the applicant under any sentence. No court in Canada has determined that the applicant has committed an offence and should be incarcerated: see Germany v. Schreiber, [2007] O.J. No. 431, 2007 ONCA 80, at paras. 9-10 (per Lang J.A., in chambers). The conviction entered against the applicant in France was entered in his absence and, apparently, without notice to him. According to the material, the authorities in France agree that the conviction will be set aside upon the applicant's return to France and he will be entitled to a trial on the merits.
[12] In addressing the public interest, it is important to understand the purpose for which the applicant is in custody in Canada. The only reason Canada has any cause to place him in custody is to facilitate his surrender to France. The applicant will not be surrendered while his application for leave to appeal [page191] to the Supreme Court of Canada is outstanding. It cannot be said to be in the public interest to hold the applicant in custody to facilitate his surrender when his surrender will not take place before the application for leave is decided. Absent some substantive cause specific to the applicant to justify detention, the public interest considered in the context of an extradition proceeding is not served by incarceration that does not facilitate the applicant's surrender to the requesting country.
[13] Having concluded that the applicant will surrender himself as required and that his detention is not necessary in the public interest, I return to the question of whether his application for leave to appeal is "not frivolous". Where the applicant has met the substantive considerations relating to bail by demonstrating that he is not a flight risk and that the public interest does not require his incarceration, recognition of the legitimate liberty interests at stake justifies setting a low bar when determining whether the applicant has shown that his application for leave to appeal is not frivolous. I do not think that an applicant who has shown himself otherwise entitled to bail should be held in custody based on my speculative and somewhat uninformed assessment of the likelihood of the applicant obtaining leave to appeal.
[14] The application raises a viable question of law and there is some basis to think that the legal question could warrant leave to appeal to the Supreme Court of Canada. That is enough to satisfy me that this application is "not frivolous". I stress, however, that where legitimate public interest concerns are raised in connection with the applicant's release, a harder look at the merits of the application will be justified in the context of considering the public interest criterion.
[15] The applicant is released on terms and conditions of the draft order provided to me by counsel. I have signed that order.
Application granted.