The Attorney General of Canada on Behalf of the United States of America v. Kyeremeh (a.k.a. John Doe a.k.a. Richard Cheremeh a.k.a. Emmanuel Ampaabeng)

[Indexed as: United States of America v. Kyeremeh]

Ontario Reports

Cout of Appeal for Ontario

Paciocco J.A. (Motion Judge),

June 30, 2020

151 O.R. (3d) 522 | 2020 ONCA 438

Case Summary

Criminal law — Compelling appearance, detention and release — Judicial interim release or bail — Grounds for denial — Detention necessary to ensure attendance — Application by Kyeremeh for judicial interim release pending Minister of Justice's decision on surrender dismissed — Applicant entered United States from Ghana in 2001 with passport and visa issued in name of another person — In 2019, after applicant was arrested on charges of making false statement relating to naturalization and aggravated identity theft, he fled to Canada and made refugee claim that was outstanding — Applicant had established history of dishonesty directly related to his desire to avoid being in Ghana — Applicant had not demonstrated he would surrender himself into custody — Extradition Act, s. 20(b).

International law — Extradition and criminal mutual legal assistance — Application by Kyeremeh for judicial interim release pending Minister of Justice's decision on surrender dismissed — Applicant entered United States from Ghana in 2001 with passport and visa issued in name of another person — In 2019, after applicant was arrested on charges of making false statement relating to naturalization and aggravated identity theft, he fled to Canada and made refugee claim that was outstanding — Applicant had established history of dishonesty directly related to his desire to avoid being in Ghana — Applicant had not demonstrated he would surrender himself into custody — Extradition Act, s. 20(b).

Application by Kyeremeh for judicial interim release pending the Minister of Justice's decision on surrender. The applicant entered the United States from Ghana in 2001 with a passport and visa issued in the name of another person. In 2019, the applicant was arrested on charges of making a false statement relating to naturalization and aggravated identity theft. He was released on conditions without sureties. The applicant fled to Canada, entering illegally. He filed a refugee protection claim that was outstanding. He had accurately notified immigration authorities of his address and informed them of the outstanding American charges. In 2020, the applicant was arrested pursuant to a provisional arrest warrant for his extradition to the United States. Four individuals from the Ghanaian community in Brampton had agreed to be sureties. The applicant intended to reside with one of his sureties.

Held, the application should be dismissed.

The issues raised by the applicant were not frivolous. The applicant had an established history of dishonesty directly related to his desire to avoid being in Ghana. The applicant had not demonstrated he would surrender himself into custody. There was a real risk the applicant would breach his bail in Canada to avoid going to Ghana.

Cases referred to

Canada (Attorney General) (United States of America) v. Mordi, [2010] O.J. No. 5204, 2010 ONSC 6666, 91 W.C.B. (2d) 272 (S.C.J.); Cretu v. Romania, [2012] S.J. No. 400, 2012 SKCA 69, 399 Sask.R. 59 (C.A.); R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, [page523] [2017] S.C.J. No. 17, 2017 SCC 17, 36 C.R. (7th) 1, 347 C.C.C. (3d) 257, 409 D.L.R. (4th) 457, 379 C.R.R. (2d) 63, 136 W.C.B. (2d) 189; United States of America v. Edwards, [2010] B.C.J. No. 502, 2010 BCCA 149, 288 B.C.A.C. 15, 89 W.C.B. (2d) 414 (C.A.)

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, s. 679 [as am.], (3), (b), (c)

Extradition Act, S.C. 1999, c. 18, ss. 20(b), 40(2) [as am.], 44(1)(a)

APPLICATION for judicial interim release pending the Minister of Justice's decision on surrender.

Alison Craig, for applicant.

Heather Graham and Kiran Gill, for respondent.

PACIOCCO J.A.: —

Overview

[1] The applicant, who has been ordered committed in an extradition proceeding, seeks an order for judicial interim release pending the Minister of Justice's decision on surrender. For the reasons that follow, this application is denied.

Material Facts

[2] The applicant entered the United States from the Republic of Ghana, his home country, on December 22, 2001. He knowingly used a passport and visa issued in the name of another person, Emmanuel Ampaabeng. His fraudulent use of the documents was not discovered for many years. Prior to that discovery he settled in Worcester, Massachusetts, where he married. Shortly after obtaining a green card through his wife, he and she divorced. While in the United States he worked, and he purchased a home under the name of Emmanuel Ampaabeng.

[3] On February 25, 2019, after suspicion was cast on his identity and his fraudulent entry into the United States was discovered, the applicant was arrested on charges of making a false statement relating to naturalization and aggravated identity theft. Together those charges carry a minimum penalty of two years, and a maximum of five additional years of imprisonment.

[4] Approximately two weeks after his arrest, the applicant was released on conditions without sureties, on an unsecured bond of $25,000. One of the reasons the court did not detain him was because of the applicant's strong roots in the community, including his home and employment. [page524]

[5] On August 4, 2019, despite his roots in the community, the applicant breached the conditions of his release and fled to Canada, entering illegally. Eight days later, on August 12, 2019, he filed for refugee protection under the name of Richy Kyeremeh. He based his refugee protection claim on his fear that if he returns to Ghana, he will be punished by death through an extra-judicial killing for having declined a tribal appointment because of his religious objections. The refugee protection application is still outstanding.

[6] Notably, the applicant disclosed to Immigration, Refugees and Citizenship Canada ("IRCC") authorities some of the circumstances that brought him to Canada, including that he had entered the United States using false documentation, settled there, and that he faces outstanding "identity theft and misrepresentation" charges in the United States. He told the authorities he came to Canada to avoid being sent back to Ghana by the Americans.

[7] On August 28, 2019, a woman who lived in the applicant's Worcester, Massachusetts home, faxed a handwritten letter to the American court that was processing the applicant's charges, advising the court that the applicant had returned to Ghana because he could not bear what was going on. The information in the letter was false because by the time the letter was sent, the applicant was in Canada with no intention of returning to Ghana.

[8] After his entry into Canada, the applicant obtained a work permit and settled in Brampton, Ontario, where he worked and integrated into the large, local Ghanaian community. Since his arrival he has complied with all the conditions imposed upon him by IRCC. He has made no attempt to hide while in Brampton, accurately notifying the immigration authorities of his address, and using his actual address on his Ontario driver's licence.

[9] On February 4, 2020, he was arrested in Brampton pursuant to a provisional arrest warrant for his extradition to the United States, obtained at the request of the United States. The applicant did not seek his judicial interim release on that arrest, and on June 12, 2020 a consent committal order was issued by Durno J. (subsequently amended on June 17, 2020).

[10] The applicant has not appealed his committal, but applies before me, pursuant to s. 20(b) of the Extradition Act, S.C. 1999, c. 18, for an order granting judicial interim release pending the Minister's decision to surrender. The applicant contends that there is significant merit in his request to the Minister that he not be surrendered to the United States.

[11] Relevant to those merits, the parties agree that the American case against the applicant is strong, and that if he is extradited, he will likely be convicted. In turn, if he is convicted, there is a near certainty he will ultimately be deported to Ghana. [page525]

[12] In addition, the applicant contends that he has presented a strong case in his refugee protection claim that if he returns to Ghana his life will be at risk. He notes that, since he is a refugee protection claimant, s. 40(2) of the Extradition Act requires the Minister of Justice to consult with the Minister of Citizenship and Immigration before ordering his extradition. The applicant contends that given the risk he will be under if sent to Ghana, there is strong reason to believe that this consultation will trigger s. 44(1)(a) of the Extradition Act, which requires the Minister to refuse to make a surrender order if the Minister is satisfied that "the surrender would be unjust or oppressive having regard to all the relevant circumstances".

Issue and Analysis

[13] The only issue before me is whether the applicant should be released pursuant to s. 20(b) of the Extradition Act, pending the Minister's decision to surrender.

[14] Section 20(b) applications incorporate the test for judicial interim release pending the determination of an appeal, set out in s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, "with any modifications that the circumstances require". Section 679(3) provides:

679(3) In the case of an appeal referred to in paragraph (1) (a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that

(a) the appeal or application for leave to appeal is not frivolous;

(b) he will surrender himself into custody in accordance with the terms of the order; and

(c) his detention is not necessary in the public interest.

[15] The Attorney General agrees that the applicant has met the very low threshold of showing that the issues raised in his submissions to the Minister are not frivolous. The Attorney General does not oppose the applicant's release based on public safety concerns; the applicant has led a law-abiding, industrious life. Instead, the Attorney General contests the applicant's release because, in the Attorney General's view, the applicant has not met his s. 679(3)(b) onus of establishing that he will surrender himself into custody in accordance with the terms of the release order. Consequently, he cannot demonstrate under s. 679(3)(c) that his surrender is not necessary in the public interest.

[16] In making this submission the Attorney General stresses that one of the modifications to s. 697(3) required in extradition proceedings is ensuring compliance with Canada's international obligations: [page526] see Canada (Attorney General) (United States of America) v. Mordi, [2010] O.J. No. 5204, 2010 ONSC 6666 (S.C.J.), at para. 4. Even in the case of refugees, given Canada's obligations to its extradition partners,

Canada's non-refoulement obligations do not displace the well-established requirement that a court considering an application for judicial interim release in an extradition proceeding must limit the assumption of risk of non-appearance more severely than might otherwise be acceptable in the case of an application for judicial interim release brought by an offender under the Criminal Code.

See Cretu v. Romania, [2012] S.J. No. 400, 2012 SKCA 69, 399 Sask. R. 59 (C.A.), at para. 17; United States of America v. Edwards, [2010] B.C.J. No. 502, 2010 BCCA 149, 288 B.C.A.C. 15 (C.A.), at para. 18. The Attorney General asks that I bear this in mind when considering the public interest under s. 679(3)(c).

[17] I am not persuaded that the mode of analysis offered by the Attorney General is correct. Specifically, I do not believe it to be necessary where an applicant has failed to establish that he will surrender himself into custody in accordance with the terms of his order, to go on and consider the effect of his risk of flight on the public interest, under s. 679(3) (c). In a s. 679 application, the applicant bears the burden of establishing each of the three itemized release considerations, on the balance of probabilities, before an interim judicial release order may be made: R. v. Oland, [2017] 1 S.C.R. 250, [2017] S.C.J. No. 17, 2017 SCC 17 , at para. 19. All considerations relevant to flight risk can be considered under s. 679(3)(b). This includes the lower flight-risk tolerance that applies where an applicant's failure to surrender would frustrate the public interest in Canada's discharge of its international obligations to its extradition partners. The question under s. 679(3)(b) is whether the applicant has established, on the balance of probabilities, that the likelihood that he will surrender himself into custody overcomes the concern that if he is released, Canada may be unable to discharge its international commitments to its extradition partner.

[18] The challenge for the applicant is that he has an established history of dishonesty directly related to his desire to avoid being in Ghana. He successfully acquired and used fraudulent identification to enter the United States under the name Emmanuel Ampaabeng, and then used that false identity to marry and obtain a green card. When confronted by American officials about his identity he lied under oath. He breached bail conditions that he undertook to respect and violated his bail bond, while trying to deceive the court about where he had fled. According to the Attorney General, it cannot be assured that he is indeed Richy Kyeremeh, as he currently claims. American authorities believe his real name is Richard [page527] Ameyaw-Akumfi Cheremeh, a name he told American authorities he wished to adopt as his legal name and has used in an e-mail account.

[19] The applicant argues that three specific considerations should overcome this history and the flight concerns it would otherwise raise.

[20] First, he has been honest with Canadian officials from the outset that he used the false identity, Emmanuel Ampaabeng, to enter the United States, and that, as a result of using that false identity he faces outstanding American charges. He did not attempt to hide when he entered Canada, but instead reported his entry. He has filed a refugee protection application and has provided accurate and up-to-date information as to where he can be found.

[21] Second, the applicant urges that his refugee protection claim is strong, and the likelihood of its success reduces his incentive to flee before the Minister's surrender decision.

[22] Third, he relies on what he claims to be the strong bail release plan he proposes. Four responsible individuals from the Ghanaian community, three of whom attest to having known the applicant from Ghana, and three of whom are ministers or pastors at the applicant's church community, are prepared to pledge sums that are meaningful to them, between $2,000 and $5,000. The applicant would live with one of his sureties and would leave the residence only accompanied by a surety.

[23] The Attorney General does not share the applicant's belief that his submissions to the Minister provide a strong basis for the exercise of the Minister's discretion because the Attorney General contends that there are inconsistencies in the supporting material and other credibility concerns. The Attorney General also contends that the release plan is not strong, given that the applicant is not close enough to any of the sureties to enable them to exact moral suasion over his conduct. Even if they report him after he flees, which he could easily do given his ability to secure and use false identities, it would be too late, and Canada's international commitment to the United States would be defeated or delayed.

[24] I confess to having been challenged by this application. The appropriate outcome is not obvious. However, in the circumstances I am not satisfied that the applicant has met the burden of proof he bears of demonstrating, on the balance of probabilities, that he will surrender himself into custody in accordance with the terms of the proposed release order.

[25] If the applicant is extradited, he acknowledges that it is almost certain that he will be convicted and then deported to Ghana. I am not in a position to decide whether the applicant's desire to avoid Ghana is based on a sincere and reasonable fear of [page528] persecution, but what cannot be questioned is that he is highly motivated not to go there. He has demonstrated that he will use fraudulent means to avoid doing so, and that he would breach bail at great personal expense to achieve that. He had strong personal and financial ties to the United States yet violated a bail release order. If he had to breach his bail in Canada to avoid going to Ghana, there is a real risk that he would do so.

[26] I accept that the applicant's bail release plan is commendable, but I am not persuaded that it would probably prevent him from fleeing, if he feels the need to do so. The applicant does not have meaningful ties to Canada that would be apt to discourage him from violating Canadian law. Although he has known some of the proposed sureties for many years, his reacquaintance with them is recent and the amounts they have pledged may not be sufficient to discourage his flight.

[27] The concerns I express are mitigated to some degree by the fact that the applicant surfaced after his illegal entry into Canada, identified himself to authorities, and brought an application for refugee protection in which he disclosed his time in the United States and his outstanding charges. However, these facts do not right the balance in the applicant's favour. The applicant would have had a difficult time surviving in Canada without Canadian identity, which his refugee application has provided. If he wished to file a credible refugee application, he would have no choice but to provide an accurate and verifiable recent history. Although his application clearly exposed him to the risk of extradition, there is strong reason to believe that immediately after it was filed, he took steps to make his trial look cold to the Americans by notifying the American court that he had already returned to Ghana. This is not a case where I can find that the applicant has been entirely open in trusting his fate to the processes of law.

Conclusion

[28] It was for the applicant to satisfy me that he will surrender himself in accordance with the order. In the circumstances I am not satisfied, on the balance of probabilities. The application for judicial interim release pending the Minister's decision to durrender is denied.

Application denied.

End of Document