COURT FILE NO.: 12/53

DATE: 2012/12/13

ONTARIO

SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 26 OF THE EXTRADITION ACT OF CANADA BY ORDER OF JUSTICE J. LAFRANCE-CARDINAL, SUPERIOR COURT OF JUSTICE DATED JULY 6^TH^, 2012

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MICHAEL WOODS

Accused

Jacqueline Palumbo, counsel for the Crown

Me Alain Leclerc, counsel for the Accused

HEARD: November 26^th^ and 28^th^, 2012

REASONS FOR JUDGMENT

LAFRANCE-CARDINAL, J.

[1] Michael Woods applies for judicial interim release while he awaits an extradition hearing. Mr. Woods was arrested in June of 2012 based on a warrant for arrest issued under section 16(3) of the Extradition Act. He has been detained since June 27^th^, 2012.

[2] The burden of proof is on Mr. Woods to show on a balance of probabilities that continued detention is not justified. Paragraph 515(6)(d) of the Criminal Code provides that an accused charged with having committed an offence punishable by imprisonment for life under sections 5(3), 6(3) or 7(2) of the Controlled Drugs and Substances Act (C.D.S.A.) or with conspiracy to commit those offences shall be detained in custody until trial unless he shows why detention is not justified.

[3] The United States seeks Mr. Woods extradition to face prosecution for his role in an alleged sophisticated and extensive cross-border drug trafficking organization by which thousands of pounds of marijuana is alleged to have been shipped to the United States from Canada in return for millions of dollars.

[4] The Canadian offences that correspond to the criminal conduct alleged by the United States against Mr. Woods are conspiracy to traffic in a Scheduled II controlled substance contrary to section 465(1) of the Criminal Code and section 5(1) of the Controlled Drugs and Substances Act. Both provide for a maximum penalty of life imprisonment.

[5] Section 19 of the Extradition Act provides that part XVI of the Criminal Code in respect of judicial interim release applies to extradition hearings, with modifications to bail that the extradition circumstances may require. The Supreme Court of Canada, in R. v. Pearson, (1992) 1992 SCC 52, 3 S.C.R. 665 approved the reverse onus inherent in paragraph 515(6)(d) of the Criminal Code on the basis that it is necessary to promote the proper functioning of the bail system for specific offences for which the normal bail system would allow continuing criminal behaviour and an intolerable risk of absconding. The Court distinguished trafficking from most other crimes on the basis that:

i) Trafficking in narcotics occurs systematically, often within a highly sophisticated and lucrative commercial setting, so there is significant incentive to carry on with the criminal operation after arrest and release on bail;

ii) The risk of absconding is highly elevated. These accused persons have access to the funds and organization to assist in flight from justice;

iii) The scope of the special rules are tailored to apply differential treatment based on the seriousness of the offence; and

iv) The onus only requires the accused to provide information he is most capable of providing.

[6] The context as set out by the Supreme Court of Canada in Pearson is even more worrisome when we are dealing with the Extradition Act. One of the considerations is that we must ensure adherence to Canada’s International Obligations. Consequently, the risk of non-appearance will be assessed more cautiously than would be the case for a domestic proceeding. One most also note that a finding of guilt for these offences in the United States could result in imprisonment for a minimum of 20 years and possibly life.

THE EVIDENCE

[7] If the record of the case (ROC) is accurate, Mr. Woods does not fall within the scope of the small or casual domestic drug dealer who would normally have no difficulty justifying release. The ROC depicts that Mr. Woods was the CEO of a prosperous, sophisticated and uninterrupted marijuana exportation and American distribution enterprise between 2004 and 2008 involving over 30 associates.

[8] The ROC comprises disclosures from three cooperating witnesses who report that they dealt directly with Mr. Woods in the pursuit of this enterprise. They give particulars of various seizures of marijuana and marijuana proceeds from co-conspirators involved in the case as well as evidence gathered from the investigating officers. To give the particulars of only one example of the illegal activity, one of Mr. Wood’s runners will testify that in the course of five to six months from 2006 to 2007 he was a courier for “Gates” and “Big Boss”: “Big Boss” referring to Michael Woods. He would have delivered approximately 7000 pounds of Canadian grown “hydro” marijuana to U.S. buyers. These U.S. buyers gave him an estimated $16,450,000.00 for the marijuana he delivered. He would have been paid approximately $300,000.00 for the services he rendered for the organization.

[9] It is alleged that it was a sophisticated business involving the smuggling of couriers into the United States, where purchased cars awaited them, with the drugs already in the trunks of the cars. It is alleged that Mr. Woods directed individuals whom he trusted, to purchase a number of big, plain-looking, non-flashy American made cars with large trunks and to register these cars in the name of others who were not involved in criminal activity. Mr. Woods provided the money to purchase the cars which were then used for the delivery of the drugs at different cities in the U.S.A. and/or drug trafficking proceeds. The American government believes it will be able to prove that Mr. Woods was at the head of this organization and that he received more than 10 million dollars during any twelve month period. The charge of conspiracy to traffic involved the distribution of more than 1000 kilos of marijuana.

[CRIMINAL CODE](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) PROVISIONS

[10] Under section 515(10) of the Criminal Code pre-hearing detention is justifiable on one or more of the following grounds:

“(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:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(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 or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.”

[11] The onus is on Mr. Woods to prove that his plan is one that addresses each and every grounds of pre-hearing detention and satisfies the Court that his detention is not justified and that the conditions of his release can be crafted in such a way to alleviate the Court’s concerns.

MR. WOOD’S PLAN

[12] Mr. Woods relies heavily on a plan which involves electronic monitoring. He has inquired about utilizing the services of Jemtec which has been providing electronic monitoring services on a private basis for specifically bail and some immigration services. The radio frequency, electronic monitoring would ensure compliance with a house arrest condition. The candidate wears an ankle bracelet where an alert is generated if the person steps outside of the perimeters or arrives late after a permitted outing. There is tamper detections. The surety must ensure that they have a smart phone or cell phone at all times in order for them to receive the alerts. Once the alert is activated, a surety has 30 minutes to rectify the situation, ie: inquire why the subject is late, or why the subject has stepped outside the boundaries, or to explain the cause of the alert, failing which the police are called. The system can only detect whether the person is present or absent.

[13] They also offer a GPS tracking system which demands more of a routine including plugging in the bracelet every day for a period of time. The advantage to install both the radio frequency and the GPS is that when the subject is away from their residence their movements can be monitored.

[14] Mr. Woods is hoping to reside at his home on Laflin Avenue in Cornwall with the assistance of the electronic monitoring. His mother, father and ex-wife could check up on him from time-to-time. His ex-wife would be the respondent for Jemtec, she would have a smart phone on her at all times and she would be responsible to give Jemtec an explanation if the alert was sounded. If this plan is not acceptable to the Court, then the alternate plan would be for Mr. Woods to reside with his ex-wife, on Miron Avenue. She is the mother of his two boys, age 19 and 11. The parties married in 1999 and would have separated in 2000 or 2001. They have not resided together since 2001. This plan would permit him to spend quality time with his children and he is confident that he could run his construction company from that home rather than from his own home on Laflin Street. He has been the President, owner and sole shareholder of his construction company since 2005.

[15] Mr. Woods proposes his father, his mother and his ex-wife as surety. Together those 3 individuals are prepared to post bonds of $160,000.00. Mr. Woods is prepared to post $20,000.00 in cash bail.

[16] Has Mr. Woods met his onus?

a) Application of the primary ground

The Supreme Court of Canada in Pearson recognized that drug traffickers have access to a large quantity of money and contacts with organizations who can facilitate flight from justice. Mr. Woods presents a significant risk that he will abscond rather than face extradition. He is facing a mandatory life sentence if he is found guilty of the charges he is facing in the U.S.A.

The amount of money he is alleged to have received and the fact that he faces a substantial prison sentence gives him the money and the motive to flee.

Electronic monitoring cannot prevent someone from absconding; it simply alerts the service provider when the person has left. The service provider then notifies the authorities. Once the person is no longer within range of the receiver he can remove the bracelet without the service provider necessarily knowing it has been tampered with. Once the bracelet is removed, the GPS system does not work and the subject is AWAL, free to use his underground criminal connections to flee. Concerns under the primary ground are not alleviated with the application of electronic monitoring.

Mr. Woods’ plan for release does not ensure someone with him 24 hours per day, seven days per week. He relies on the electronic monitoring to do so which unfortunately is far from fool proof.

b) Application of the secondary ground

The Court in Pearson recognizes that the business of drug trafficking is a sophisticated commercial enterprise with lucrative returns. It is a way of life. There are huge incentives to continuing the criminal behaviour after someone’s release or at least continue the criminal activity to tie loose ends, collect debts, collect money from transactions not quite completed before the arrest. The best predictor of future behaviour is to look at the past. Mr. Woods, as evidenced by his criminal record, has shown a disregard for sanctions imposed by the Court. He has two convictions for failing to attend court, 6 convictions for driving while disqualified and since 2010 he was convicted of three failures to comply with conditions. As recently as February 13^th^, 2012 Mr. Woods plead guilty in front of me of possessing 50 lbs of marijuana for the purpose of trafficking. On a joint submission, he was given a 90 day intermittent sentence and 12 months probation. Mr. Woods was on probation when he was arrested on these extradition proceedings.

Mr. Woods cannot be released on either the primary or the secondary grounds. Consequently, it is not necessary to analyze whether Mr. Woods should also be detained under the tertiary grounds.

Mr. Woods is too much of a flight risk, and the proposed plan does not provide the necessary safeguards needed. The sureties proposed cannot control Mr. Woods, they never have and they probably never will. Mr. Woods in the past has not abided by Court conditions and I have no faith that he would abide by any conditions imposed by me today, he will therefore continue to be detained.

Madam Justice Lafrance-Cardinal

Released: December 13^th^, 2012

COURT FILE NO.: 12/53

DATE: 2012/12/13

ONTARIO

SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 26 OF THE EXTRADITION ACT OF CANADA BY ORDER OF

JUSTICE J. LAFRANCE-CARDINAL, SUPERIOR COURT OF JUSTICE

DATED JULY 6^TH^, 2012

HER MAJESTY THE QUEEN

– and –

MICHAEL WOODS

REASONS FOR JUDGMENT

Madam Justice Lafrance-Cardinal

Released: December 13^th^, 2012