ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
COURT FILE NO.: 90000-35/12
DATE: 20120508
B E T W E E N:
DENNIS GEORGE JACKSON a.k.a. JOSEPH KANNON JOHNSON a.k.a. ORSON BOVAIN Applicant - and - THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Respondent
Vincenzo Rondinelli for the Applicant Heather Graham for the Crown
HEARD: April 27, 2012
Thorburn J.:
REASONS FOR DENIAL OF BAIL PENDING EXTRADITION
A. OVERVIEW
[ 1 ] The Applicant, Dennis Jackson, seeks bail pending his extradition to the United States to face charges of intentionally conspiring to possess with the intention to distribute five kilograms or more of cocaine.
[ 2 ] An arrest warrant was issued for Jackson in the United States on October 13, 2011. He was not arrested in the United States as the U.S. Attorney General submits that “according to sources” Jackson fled to Houston Texas. On October 14, 2011, he was declared a fugitive.
[ 3 ] It is agreed that from October 2011 to February 2012, Jackson was living in Canada.
[ 4 ] Pursuant to section 12 of the Extradition Act , the Minister of Justice authorized the Attorney General to apply for a warrant of provisional arrest.
[ 5 ] Jackson was apprehended by Canadian Border Services Agency authorities on February 24, 2012 for returning to Canada without authorization as he was deported and therefore had no immigration status in Canada. At the time of his arrest he was carrying false identification.
[ 6 ] Since the time of his arrest he has been at the Metro West Detention Centre.
[ 7 ] Jackson seeks bail pending his extradition proceeding.
[ 8 ] The Crown contends that Jackson should remain in custody. The Crown claims Jackson is a flight risk, the charges are serious and the case against him is strong.
[ 9 ] The evidence available to me at this hearing consists of the affidavits of Jackson, his wife Mrs. Jackson, his brother-in-law, mother-in-law and father-in-law. Mr. and Mrs. Jackson and Jackson’s mother-in-law testified in this proceeding.
[ 10 ] For the reasons that follow, the request for bail pending the extradition proceeding is denied.
B. THE LAW
[ 11 ] In an extradition proceeding, the person before the court is not charged with an offence in Canada. Section 19 of the Extradition Act incorporates Part XVI of the Criminal Code into the Extradition Act . Part XVI of the Code includes the provisions relating to bail.
[ 12 ] The detention of an accused in custody pending trial can only be justified on one or more of three specified grounds set out in section 515 (10) of the Criminal Code . These are:
a) where detention is necessary to ensure the accused will attend in court as required;
b) where there is a concern for the protection or safety of the public, including a concern that there is a substantial likelihood of the accused committing a further criminal offences if released; and
c) where detention is necessary to maintain confidence in the administration of justice, having regard to all of the circumstances including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.
[ 13 ] Because Jackson is charged with drug trafficking and is not ordinarily resident in Canada, section 515(6)(b) of the Criminal Code provides that Jackson bears the burden, on a balance of probabilities, of showing why his detention is not justified under any of the three grounds for detention in s. 515(10) of the Code . One of the reasons for this reverse onus where the charge is drug trafficking is that the courts have determined that there is a marked danger of flight in such cases. Unlike many other offenders, drug trafficking offenders often have access to large sums of money and to sophisticated organizations that can assist in a flight from justice. There is evidence that those charged with narcotics offences pose a particular danger of absconding while on bail. [1]
[ 14 ] In an application for judicial interim release in an extradition proceeding, "the court must look at the risk of non-appearance even more cautiously than might be the case in domestic proceedings". [2]
[ 15 ] The prospective length of pre-hearing custody is also factor in a decision regarding whether to grant bail. [3]
[ 16 ] The above factors must be considered in the context of the evidence adduced at this hearing.
C. THE POSITIONS OF THE PARTIES
The Applicant’s Position
[ 17 ] Jackson seeks his release on bail pending the extradition hearing.
[ 18 ] He does not contest that the charges against him are serious. He points out however, that no Record of the Case has yet been prepared and the evidence against him has not been completed. He has no criminal record.
[ 19 ] He says he is not a flight risk and can be supervised by his wife and her two parents.
[ 20 ] Jackson’s immediate family reside in Ontario. His wife works regular business hours and is out of the home Monday through Friday from approximately 7:30 a.m. to 6 p.m. Her parents are retired and live in the home owned by Mrs. Jackson. Among them, they are prepared to offer 24 hour supervision and allow Jackson to live with them in their home. They are prepared to escort him as and when he needs to leave the home.
[ 21 ] Jackson’s wife and brother-in-law have sufficient assets to enable them to pledge $25,000.00 each to secure his release from custody.
[ 22 ] Jackson has no Canadian or American passport, and is prepared to surrender all travel documents.
The Attorney General’s Position
[ 23 ] Counsel for the Attorney General objects to Jackson’s release pending extradition. She asserts that Jackson is a serious flight risk for the following reasons:
a) he has had no permanent residence since at least 2003; and
b) neither Jackson’s wife nor her family knew where he was living, what he was doing to earn a living nor were they aware that he was using aliases. Both Mrs. Jackson and her mother testified that they did not discuss these things with him and that he did not tell them what he was doing.
[ 24 ] Counsel for the Attorney General further submits that the charges are serious and the case against him is strong. As such, detention is necessary.
D. REVIEW OF THE CONSIDERATIONS REGARDING RELEASE OR DETENTION PENDING EXTRADITION AS THEY APPLY TO JACKSON
Flight Risk
[ 25 ] Jackson is a forty-eight year old man with no criminal record.
[ 26 ] Jackson admitted that he used two aliases and was found with a forged driver’s licence when he was apprehended by the Canadian Border Services Agency. Jackson has also admitted that he has no immigration status in either Canada or the United States and has been deported from both. Notwithstanding his deportation from Canada and the United States, he has reentered both Canada and the United States illegally.
[ 27 ] Jackson swore in his affidavit that, "I currently reside at 7 Crocker Drive, Brampton Ontario with my wife, our three children and my wife`s parents. We have resided there since March 2005." Jackson admitted under cross-examination that this was not true: he did not reside in Brampton with his family until he returned to Canada in October 2011 and from 2003 to 2011 he resided in the United States and Jamaica.
[ 28 ] For these reasons, I find Jackson to be an untrustworthy person notwithstanding that he has no criminal convictions.
[ 29 ] Mrs. Jackson was a forthright and honest witness. In addition to being a single parent, she has worked hard to buy a home for herself and her family, to get an education and to provide financially for her family. She owns her own home but Jackson has no financial interest in the home. Due to her work schedule and the fact that she has two school aged children to attend to, she is unable to provide constant supervision of Jackson.
[ 30 ] Mrs. Jackson’s parents are retired and thus could provide ongoing supervision. However, it was clear from the testimony given by Mrs. Jackson’s mother that she has never asked Jackson what he is doing for a living or where he is living, (despite the fact that he is the father of all of Mrs. Jackson’s children). She testified that she does not ask Jackson questions about what he is doing or his whereabouts and would only find out his whereabouts if he chose to tell her. She has never and thus is unlikely to be able to exercise any control over Jackson.
[ 31 ] It is unclear what role Mrs. Jackson’s father has played or could play in ensuring that Jackson obey all of the terms of a proposed release. Jackson’s brother-in-law did not testify. In his affidavit he pledged $25,000.00. At the hearing there was no suggestion that he would have any involvement in controlling Jackson’s day to day activities.
[ 32 ] In short, it is clear from the material filed that Jackson is not a trustworthy person and that the proposed sureties have never exercised control over Jackson and are unlikely to be able to do so now. I note that the courts have held that there is a heightened risk in drug trafficking cases that an accused charged with such an offence may abscond. [4]
[ 33 ] For these reasons, I am satisfied that Jackson is a flight risk and has not therefore discharged the onus of establishing a justification for his release on the primary ground.
Public Safety
[ 34 ] The Crown submits that given Jackson’s willingness to lie (he has lied to enter both Canada and the United States illegally, has used aliases and was found with a false driver’s license at the time of his arrest), it is possible he will commit further criminal offences while on bail.
[ 35 ] However, given that Jackson has no criminal record, I find on a balance of probabilities that he has satisfied the secondary ground that he would not be a threat to public safety if released pending the extradition hearing which is to take place shortly.
Confidence in the Administration of Justice
[ 36 ] Jackson is in custody in Canada to facilitate his surrender to the United States. There must be a cause specific to Jackson to justify his continued detention. Some evidence has been cited in support of the extradition, although the Record of the Case that sets out the evidence in support of committal is not yet available. The evidence that was adduced on this Application is set out below:
[ 37 ] According to Terry Lindsey, Assistant United States Attorney, law enforcement agents conducting an investigation of the trafficking of narcotics between Florida and Texas negotiated with an individual to purchase five kilograms of cocaine. It was agreed that the agents would pay for the cocaine once it was sold. This deal was negotiated to establish trust for future deliveries.
[ 38 ] The individual with whom the authorities negotiated, participated in a number of telephone calls and meetings with an undercover agent. In August 2011, the individual met with the undercover agent and took possession of a bag which he believed contained five kilograms of cocaine. The individual was arrested.
[ 39 ] The individual confessed that he had intended to deliver the cocaine to Jackson and return with the money once the cocaine was sold.
[ 40 ] Thereafter the individual cooperated with the authorities and participated in a number of recorded telephone calls with a person he identified as Jackson.
[ 41 ] On October 5, 2011, the individual told authorities that Jackson would send a relative to pick up the cocaine. A third person met with the authorities and was arrested. The authorities took possession of a bag that was supposed to contain the cocaine.
[ 42 ] According to Terry Lindsey, Assistant United States Attorney, both the individual who first dealt with the authorities and the second person who delivered the bag will identify Jackson as the co-conspirator.
[ 43 ] Counsel for the Attorney General states that the case is a strong one as there are over 40 intercepted telephone calls. Moreover, the charges in this case are serious; the penalty could be ten years to life imprisonment.
[ 44 ] It is agreed that Jackson was deported from the United States for illegal entry and using fraudulent identification in 2004 whilst in the United States illegally. It is also agreed that Jackson was deported from Canada in 1994 for returning to Canada without authorization. Finally, when Jackson was arrested in Canada, he was carrying an altered Jamaican driver’s license. Jackson has not indicated that there is any evidence to suggest that any of these assertions are incorrect. On the contrary, he has confirmed that he used aliases, was deported from the United States and Canada and carried a false driver’s licence. I also note that the time he returned to Canada was approximately the same time as the warrant for his arrest was issued in the United States.
[ 45 ] Counsel for the Attorney General has advised the court that the Record of the Case will be obtained on April 28 th and will be signed on May 28, 2012.
[ 46 ] For these reasons, the Attorney General has satisfied me on a balance of probabilities that Jackson’s detention is necessary in order to maintain confidence in the administration of justice given the seriousness of the charges, the evidence available, and the fact that the Record of the Case outlining the evidence in more detail, will be provided very shortly.
[ 47 ] I would distinguish this case from the cases relied on by Jackson in support of his request for release. In the Adriano case cited above, Adriano had been on immigration bail for three years without incident, during which time the authorities knew where to find him. Moreover, he had a strong attachment to Canada as he had a relationship with his thirteen year old son whom he would no longer see. Similarly, in The Republic of France and The Minister of Justice and Attorney General of Canada v. Abdellah Ouzghar , 2009, ONCA 137 Doherty J.A. held that there was nothing to suggest the Applicant would not surrender to authorities when requested to do so and in fact, "The applicant`s track record during the many years that he had been on bail suggests to the contrary." Moreover, the applicant’s incarceration would not facilitate the applicant’s surrender to the requesting country.
[ 48 ] In this case by contrast, there is evidence that Jackson has tried several times to enter Canada and the United States without the legal authority to do so, and even his own wife did not always know where he was residing or what activities he was engaged in to make a living. Secondly, there is no evidence before me that Jackson’s bond with his wife or children is a strong one. They have resided here but he has not lived here since 2003. His wife and children occasionally visit him in the United States.
E. CONCLUSION
[ 49 ] Jackson is to remain in detention on the grounds that he is a flight risk and the charges are serious and his detention is necessary to maintain confidence in the administration of justice. Moreover, given the undertaking given by counsel for the Attorney General, the length of pre-hearing custody will not be lengthy.
[ 50 ] For these reasons, the Application for bail pending the extradition hearing is denied on the understanding that the Record of the Case is available and the Attorney General will schedule a hearing for extradition on May 24, 2012.
Thorburn J.
Released: May 8, 2012
COURT FILE NO.: 90000-35/12
DATE: 20120508
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:
DENNIS GEORGE JACKSON a.k.a. JOSEPH KANNON JOHNSON a.k.a. ORSON BOVAIN Applicant
- and -
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Respondent
RULING REGARDING BAIL Thorburn J.
Released: May 8, 2012
[^1]: Attorney General of Canada on behalf of the Republic of Italy v. Albano Adriano, Court File No. E. 22/07 (S.C.J.); R. v. Pearson 1992 52 (SCC) , [1992] 3 S.C.R. 665, paras. 59 to 63 .
[^2]: United States of America v. Edwards 2010 BCCA 149 , 288 B.C.A.C. 15 , at para. 18 , per Low J.A.
[^3]: United States v. Ugoh, Kassim et al , (2010) DocCR-10-9000221 (ONSC) O.J. No. 1505, 1987 Carswell Ont 3542
[^4]: R. v. Pearson (1992), 1992 52 (SCC) , 77 C.C.C. (3d) 124 (S.C.C.).