COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Singh, 2014 ONCA 559

DATE: 20140721

DOCKET: M44027

Strathy C.J.O. (In Chambers)

BETWEEN

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

Respondent

and

Gursharan Singh

Applicant

Frank Addario, for the applicant

Nancy Dennison, for the respondent

Heard: July 18, 2014

On application pursuant to s. 18(2) of the Extradition Act, S.C. 1999, c. 18, to review a detention order by Justice Todd Ducharme of the Superior Court of Justice, dated May 27, 2014, pending a request for extradition.

ENDORSEMENT

[1] Gursharan Singh was denied judicial interim release pending his extradition hearing. He applies to this court for review of that order and asks to be released on strict terms, including house arrest, electronic monitoring, four sureties and a recognizance in the amount of $850,000.

[2] Mr. Singh is sought for extradition by the United States with respect to two sets of offences, one in Massachusetts and the other in New York. The allegations relate to the importation and trafficking of very substantial amounts of cocaine and MDMA.

[3] At the hearing, the Crown did not advance the tertiary ground and the application judge found any concerns on the secondary ground could be met by imposing strict conditions of release. However, he dismissed the application on the primary ground.

[4] He noted the strict sentencing regime for drug trafficking offences in the United States, with the potential for a maximum sentence of life imprisonment in New York and 20 years in Massachusetts.

[5] The application judge also noted that although Mr. Singh has no criminal record, he is facing charges in Canada for trafficking in cocaine, possession of cocaine for the purposes of trafficking, conspiracy to traffic in cocaine and possession of proceeds of crime. Those charges pre-date the extradition requests by the United States.

[6] The application judge observed that the case against Mr. Singh in the United States appears strong and the amount of drugs involved, over 350 kilograms in one case, make the allegations very serious. He observed that, if convicted, Mr. Singh would likely be sentenced to imprisonment of 20 years or more. He concluded that in light of these penalties, and the nature and extent of his involvement in drug activity, Mr. Singh had not discharged the onus with respect to the primary ground.

[7] The standard of review on this application requires demonstration that the application judge made an error in principle: United States of America v. Pannell (2005), 2005 22 (ON CA), 193 C.C.C. (3d) 414 (Ont. C.A.); United States of America v. Ugoh, 2011 ONSC 1810, 269 C.C.C. (3d) 380, at para. 9. In Pannell, at para. 24, MacPherson J.A. referred to the observation of Sharpe J.A. in United States of America v. Chan (2002), 2000 5619 (ON CA), 144 C.C.C. (3d) 93 (Ont. C.A.), 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].”

[8] Mr. Singh points to three alleged errors that he says permit the intervention of this court.

[9] First, he says the application judge misapprehended the evidence in apparently accepting the Crown’s submission that he was capable of accessing large sums of money, thereby making him a flight risk. In my view, this conclusion was open to the application judge and does not reflect an error in principle. There was evidence that Mr. Singh was an important participant in a sophisticated trafficking operation lasting several years, and that he trafficked large quantities of cocaine capable of generating millions of dollars of revenue. The observations of the Supreme Court of Canada in R. v. Pearson, 1992 52 (SCC), [1992] 3 S.C.R. 665, at p. 696, are apt:

Drug importers and traffickers, however, have access both to a large amount of funds and to sophisticated organizations which can assist in a flight from justice. These offenders accordingly pose a significant risk that they will abscond rather than face trial.

[10] Second, Mr. Singh contends there was no evidence to support the application judge’s statement that he would likely spend a minimum of 20 years in prison. The Crown concedes there was no such mandatory minimum sentence and that this observation was in error. In my view, however, it was not an error in principle. There was evidence that Mr. Singh faced a mandatory minimum of 10 years and a maximum sentence of life imprisonment. Under the applicable sentencing guidelines, if convicted after trial he could receive an “advisory range” of sentence of between 30 years and life in New York. The application judge was entitled to conclude that the possibility of a very long sentence increased the flight risk.

[11] Third, Mr. Singh says the application judge made an error in principle in failing to balance his flight risk against his absence of a criminal record, his family support and impending marriage in Canada, his exemplary conduct on bail for the Canadian charges and the strict terms he proposed for house arrest and electronic monitoring.

[12] I do not find the application judge made an error in this regard. The applicant proposed that he would live with some of his sureties, namely his mother and father and brother and sister-in-law. The application judge heard evidence from Mr. Singh’s mother and father. I agree with the respondent that their evidence does not demonstrate a high level of awareness of the seriousness of the charges facing their son. The application judge was well-positioned to assess Mr. Singh’s submission concerning the “pull of bail”: United States of America v. Ugoh, at para. 12.

[13] Mr. Singh relied on the fact that, while on bail for the Canadian charges, the court, with the consent of the Crown, approved a variation of his bail to permit him to travel to India to attend a family wedding. He duly returned. Mr. Singh contends this is strong evidence of his trustworthiness. I agree with the Crown that the playing field has changed dramatically in the interim – he is now facing very serious charges in the United States and the possibility of lengthy imprisonment. As well, as the application judge noted, the case in the United States appears strong, notwithstanding its reliance on cooperating witnesses who were themselves facing long sentences. The application judge also noted that although Mr. Singh’s parents and siblings are in Canada, he has relatives in India.

[14] I do not find it persuasive that two of the other participants in one of the alleged offences in the United State were granted interim release by a judge of the British Columbia Supreme Court. The judge in that case found that the evidence against the accused was of questionable reliability and the identification evidence was weak. The application judge here found the evidence appears to be strong. The Supreme Court judge in British Columbia found that the co-conspirators were not available to assist the accused in flight, presumably because they had been arrested. That conclusion is not available in Mr. Singh’s case because it is a reasonable inference that the alleged conspiracy involved parties outside North America.

[15] I have not overlooked the submission based on United States of America v. Cheema, 2007 BCCA 624, 255 B.C.A.C. 35, at para. 17, that “there is always, in these cases, some possibility of flight.” Prowse J.A. made that observation in the context of being satisfied that the applicant would surrender into custody.

[16] The application judge expressly referred to Mr. Singh’s constitutional right to a reasonable bail. In my view, he undertook an appropriate balancing of all relevant considerations and made no error in principle in concluding Mr. Singh had not discharged the onus on him.

[17] Mr. Singh points to the sophisticated electronic monitoring system that he has agreed to implement and pay for as a term of his release. This proposal was not before the application judge. As Trotter J. observed in R. v. Sotomayor, 2014 ONSC 500, [2014] O.J. No. 359, at para. 40, “[e]lectronic monitoring is not a primary ground panacea. It does not prevent absconding, it merely notifies the authorities when someone has moved out of the zone in which they are meant to remain”. In my view, the electronic monitoring proposal does not tip the balance in favour of release.

[18] For these reasons, the application is dismissed.

“G.R. Strathy C.J.O.”