Romania v. Alexa, 2010 ONCA 195

Date: 2010-03-12 Docket: M38507 Court of Appeal for Ontario Simmons J.A. (In Chambers)

Between:

The Attorney General of Canada on Behalf of Romania Respondent/ Extradition Partner

And

Cristinel Alexa Applicant/Person Sought

Counsel: Vanessa V. Christie, for the applicant Howard Piafsky, for the respondent

Heard: March 3, 2010

Reasons for Decision

Simmons J.A.:

[1] This is an application under s. 18(2) of the Extradition Act, S.C. 1999, c. 18, for a review of decisions made by judges in the Superior Court, detaining the applicant pending extradition proceedings.

[2] The initial decision to detain was made by Dambrot J. on October 31, 2008. On June 19, 2009, Trotter J. dismissed an application for review based on material change in circumstances. On January 7, 2010, Kiteley J. dismissed a further application for review based on alleged error in principle.

[3] The application before me is essentially a repeat of the application made to Kiteley J. The applicant submits that Dambrot J. erred in principle by denying bail on the tertiary ground, solely on the basis of the strength of the case against the applicant. In addition, he argues that Kiteley J. and Trotter J. both erred in failing to recognize this error.

[4] I do not accept these submissions.

[5] An Amending Authority to Proceed authorized the Attorney General to seek a committal order for the following offences:

i) Trafficking in narcotics contrary to the Controlled Drugs and Substances Act (with Bob Iucian, Martin Daniel, Ulucean Aurel and Cladiu Alexa); and

ii) Trafficking in narcotics contrary to the Controlled Drugs and Substances Act (6 kilograms of cocaine to Tampescu Manuela and Covaci Tiberius Florin).

[6] As I read his reasons, Dambrot J. analyzed this case starting from the premise that the offences set out in the Authority to Proceed are reverse onus offences. He characterized the Crown’s position as raising concerns in relation to the primary and tertiary grounds. Concerning the primary ground, he concluded that the applicant’s release plan, which includes seven sureties willing to pledge approximately $900,000, would permit an acceptable release order. However, he concluded that the tertiary ground was also applicable based on the allegations that the applicant “has been an executive level member of an international trafficking organization over a number of years”.

[7] Dambrot J. then turned to the applicant’s response to the tertiary ground, which consisted of arguments relating primarily to the propriety of the prosecution in Romania. After rejecting these arguments, Dambrot J. concluded that the applicant should be detained on the tertiary ground.

[8] The tertiary ground is set out in s. 515(10)(c) of the Criminal Code. It applied in the hearing before Dambrot J. by virtue of the provisions of s. 19 of the Extradition Act. The relevant portions of s. 515(10)(c) reads as follows:

s. 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:

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

i) the apparent strength of the prosecution’s case,

ii) the gravity of the offence,

iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment…

[9] Reading his reasons as a whole, in my view, it is apparent that Dambrot J. considered all of the factors enumerated in the tertiary ground.

[10] The applicant does not contest that Dambrot J. considered the strength of the prosecution’s case. In my opinion, it is apparent that he considered the gravity of the offences and the circumstances in which they were committed by his references to the applicant being an “executive level member of an international trafficking organization over a number of years” and by earlier references in his reasons to the particular circumstances of the offences.

[11] For example, he observed that the second offence included allegations that the applicant secured the co-operation of a female confederate by threatening the safety of her children. He also noted that, although the applicant was living in Canada at the material times, there was evidence of travel and that the applicant appears to be living beyond his means in Canada.

[12] Further, in my view, it is implicit in Dambrot J.’s reasons that he was aware that the applicant was liable to a potentially lengthy term of imprisonment. In fact, the materials before him disclosed that by the time of the bail application, the applicant had been convicted in Romania in absentia (albeit in the presence of a lawyer he arranged to represent him) and sentenced to 14 years imprisonment.

[13] The applicant also placed significant reliance on comments made by Doherty J.A. at para. 12 of France v. Ouzghar, 2009 ONCA 137, 95 O.R. (3d), 187 (C.A.), which was an application under s. 679 of the Criminal Code in an extradition proceeding for bail pending an application for leave to appeal to the Supreme Court of Canada:

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 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. [Emphasis added.]

[14] I do not read this passage from Ouzghar as suggesting that a person should not be detained on an application for bail in the extradition context where the tertiary ground under s. 515(10) of the Criminal Code is satisfied. On the contrary, I read the emphasized passage as suggesting quite the opposite.

[15] Moreover, this case is quite different from Ouzghar in terms of the public interest considerations that are in play. Although it was alleged that Mr. Ouzghar was a member of a terrorist organization, the primary allegations against him concerning actual terrorist activity were relatively limited; they involved participating in passport forgery and uttering a forged document.[^1] Further, although Mr. Ouzghar had been convicted in France in absentia, it was acknowledged that he did not have notice of the French proceedings and would be entitled to a trial on the merits following surrender. Finally, Mr. Ouzghar had a long record of being on bail in Canada without incident.

[16] By way of contrast, in this case, the applicant is alleged to be a longstanding high level participant in an international drug trafficking organization. Unlike Mr. Ouzghar, the applicant had notice of the proceedings against him in Romania, chose to participate in those proceedings from afar, and has been convicted in those proceedings and sentenced to 14 years imprisonment. Further, by the time of the review before Trotter J., it had emerged that although the scope of the allegations against him may have narrowed somewhat on appeal, the applicant lost his first level appeal in Romania.

[17] I acknowledge that detention solely on the tertiary ground will be justified only in relatively rare circumstances: see R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309; R. v. Laframboise (2005), 203 C.C.C. (3d) 492 (Ont. C.A.); at para. 30; and R. v. Blind (1999), 139 C.C.C. (3d) 87 (Sask. C.A.). However, even though Dambrot J. concluded that an acceptable release order could be crafted to meet the primary ground, nonetheless, it seems to me that it was open to him to find that an informed public would be justifiably concerned about the applicant’s continued presence in the community.

[18] After all, the applicant has been convicted and sentenced in another country, in a proceeding in which he participated, to 14 years imprisonment for high level involvement in an international drug trafficking organization. The charges against him include allegations of intimidation. It is undisputed that the record of the case supporting the claim for extradition is strong. Further, subsequent to the hearing before Dambrot J. it has emerged that the applicant was unsuccessful on his first level appeal in Romania.

[19] I am not persuaded that Dambrot J. made any error in principle. The application is therefore dismissed.

[20] Before concluding, I would like to echo the comments of Trotter J. in United States of America. v. Khadr (2008), 234 C.C.C. (3d) 129 (Ont. S.C.J.), at para. 54, that “[i]nterpreting s. 18(2) of the Extradition Act as conferring concurrent jurisdiction on judges [of the Superior Court] and the Court of Appeal may at times result in the excessive use of judicial resources.” Accordingly, “if the moving party wishes to allege that the judge who made the original decision erred in principle or law, resort should be made to a judge of the Court of Appeal.”

[21] In this case, in my view, it would have been a preferable use of judicial resources had the applicant brought his second review application in the Superior Court to this court.

RELEASED: March 12, 2010 “JS” “Janet Simmons J.A.”

[^1]: See France v. Ouzghar (2009), 2009 ONCA 69, 94 O.R. (3d) 601 (C.A.).