CITATION: United States of America v. Mylvaganam, 2009 ONCA 460

DATE: 20090604

DOCKET: M37607 C49479

COURT OF APPEAL FOR ONTARIO

Watt J.A. (In Chambers)

BETWEEN

The Attorney General of Canada on behalf of the United States of America

Respondent

and

Ramanan Mylvaganam

Applicant

Richard Litkowski, for the applicant

Richard Kramer, for the respondent

Heard and released orally: May 27, 2009

Application for an order granting the applicant judicial interim release pending release of judgment reserved on May 14, 2009.

ENDORSEMENT

[1] On August 22, 2006, Ramanan Mylvaganam (the applicant) was arrested on a provisional arrest warrant issued under the Extradition Act. He was released from custody on October 2, 2006.

[2] On October 7, 2008, over two years after his release from custody, the applicant was ordered committed for surrender by a judge of the Superior Court of Justice. The extradition partner, the United States of America, seeks the applicant’s return for prosecution on criminal charges of providing material support for a terrorist organization, the Liberation Tigers of Tamil Eelam. The corresponding Canadian offences are those of ss. 83.03 and 83.18 of the Criminal Code.

[3] The applicant was released from custody on October 17, 2008 pending the determination of his appeal from the committal order. The Minister has since signed an order for the applicant’s surrender. The applicant has not sought to review the Minister’s surrender decision.

[4] The applicant’s appeal from the order of committal was heard on May 14, 2009. Judgment was reserved. The applicant now seeks his release on stringent terms pending release of the court’s judgment. The extradition partner opposes.

[5] For the applicant, Mr. Litkowski begins with a reminder that the applicant has been out of custody between apprehension and committal, and from committal until his appeal was heard, for nearly two and one-half years. The terms of his release have been strict. No breaches are suggested, much less established. He has diligently pursued advanced studies at a well-known and highly respected Ontario university. Soon, he will accumulate this third Master’s Degree. He plans to pursue a Ph.D.

[6] Mr. Litkowski contends that the prospect that the applicant will now attempt or actually flee to Sri Lanka, the country of his birth, is simply beyond imagination. He has not returned there since his arrival in Canada seventeen years ago and, in the current state of unrest in that country, it would be at the least foolhardy to even contemplate it. All the more so, when family or friends have pledged substantial amounts as sureties to guarantee his compliance with the stringent terms of his proposed release.

[7] What is more, Mr. Litkowski says, the Record of the Case does not suggest that the applicant is himself an active member of the Tamil Tigers, a listed terrorist organization. His involvement in their activities, Mr. Litkowski submits, was of brief duration and the assistance actually provided, minimal.

[8] For the extradition partner, Mr. Kramer acknowledges that he can point to no specific evidence that the applicant is a flight risk. At least nothing that surpasses the assumed: the incentive to flee increases in direct proportion to the proximity of the date of removal. That said, Mr. Kramer does raise some concerns about two replacement sureties, in particular, their ability to offer real property security without the concurrence of their spouses.

[9] The principal concern expressed by Mr. Kramer has to do with the public interest. The applicant faces trial on criminal charges involving terrorist activities. The organization involved is international in its operations, as the Record of the Case amply demonstrates. And besides, the applicant faces a formidable prosecution case in the jurisdiction of the extradition partner, the United States of America.

[10] Mr. Kramer underscores that these proceedings engage Canada’s international obligations and involve allegations of terrorist activity. The authorities emphasize that extradition proceedings are to be conducted efficiently and expeditiously. They involve not only the administration of justice here but also the administration of justice in the jurisdiction of our extradition partners. We have an obligation, Mr. Kramer submits, to ensure that nothing we do compromises the ability of our international partners to pursue their prosecutorial goals.

[11] The applicant was released from custody prior to the extradition hearing. Nothing untoward occurred. The applicant was released pending the hearing of his appeal. Again, without apparent incident. He surrendered as he was required to do. He has been at liberty without incident for the better part of two and one-half years.

[12] The applicant was committed to await surrender on October 7, 2008. Since then, the Minister of Justice has ordered his surrender. For the better part of seven months, the applicant has been at liberty in the knowledge that a judge and the Minister have, in combination, ordered his surrender to face charges in the United States of America.

[13] Thus far, the applicant has not demonstrated any tendency to flee, rather remained compliant with his release terms and has continued to pursue his post-graduate studies. In effect, the only change in his circumstances has been that his appeal from the committal order has been heard by a panel of this court and judgment reserved. The respondent offers no concrete indication of an enhanced risk of flight beyond the proximity of a probable affirmation of the committal.

[14] In some instances, it may well be that a dormant risk of flight may be awakened as the appellate process trudges on towards the inevitable final resolution. But such a prospect seems an unlikely consequence here, all things considered, including but not limited to:

i. the significant period during which the applicant has been at liberty in similar circumstances;

ii. the applicant’s continued enrolment in and active pursuit of post-graduate university studies;

iii. the demonstrated ability of his several sureties to manage the applicant’s compliance with his release terms; and

iv. the magnitude of the risk to the applicant’s sureties in the event of default.

[15] The public interest assessment reflects the tension between enforceability and reviewability in the usual context in which it arises under s. 679(3)(c) of the Criminal Code. Balancing these considerations is neither scientific nor precise. In cases like this, an extradition case in which the merits of the claims of error have already been reviewed, there is an added feature to the enforceability consideration: the need to fulfill and be seen to fulfill our obligations to our extradition partners in an efficient and expeditious way.

[16] The “public interest” assessment was equally a factor for the judge at first instance, as well for the judge of this court who ordered the applicant’s release pending the hearing of his appeal. Neither considered the “public interest” sufficient to warrant detention. I am not persuaded that, in combination, the passage of time and argument of the appeal warrant any different conclusion where release is sought pending judgment.

[17] In the result, I am satisfied that the applicant should be released pending judgment on terms substantially similar to those in the order of MacPherson J.A. made on October 17, 2008, varied to permit a substitution of sureties, provided those to be substituted have the necessary authority to offer their properties as security, and including a term requiring surrender prior to the release of judgment.

“David Watt J.A.”