Superior Court of Justice (Central West Region)

File No. CR1189/15EX

IN THE MATTER of an Application by CARLOS MANUEL CORREIA a.k.a. CARLOS GONCALVES CORREIA pursuant to s.18 of the Extradition Act for an Order granting Judicial Interim Release

BETWEEN:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Respondent (Requesting State)

v.

CARLOS MANUEL CORREIA a.k.a. CARLOS GONCALVES CORREIA Applicant (Person Sought for Extradition)

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE MR. JUSTICE S.C. HILL On October 30, 2015, at BRAMPTON, Ontario 7755 Hurontario Street

APPEARANCES

A. Rice, Ms. For the Respondent

C. Kerr, Ms. For the Applicant

R E A S O N S F O R J U D G M E N T

Hill, J. (Orally):

Introduction:

Carlos Correia, the applicant, is currently detained in custody. In this proceeding, he seeks judicial interim release.

A chronology of background facts is necessary. In February of 2009, the applicant, then a permanent resident of the United States, residing in New York State, was arrested and charged in a 20-count Information with tax evasion crimes relating, at least in part, to payroll taxes. On March 12, 2009, he pled guilty to Count 15 and was released on recognizance pending sentencing.

On July 9, 2009, Mr. Correia was sentenced to ten months in jail, a $20,000 fine, three years of supervised release and restitution in the amount of $97,809. The sentencing court ordered October 4, 2009, as a date for the applicant to surrender to commence serving his custodial sentence.

On September 30, 2010, only days before that surrender date, a court allowed an extension to the applicant to August 18, 2011. On that new surrender date, the applicant failed to surrender, as ordered. Investigation of his whereabouts commenced and with a discovery that the applicant had left the United States by air for Lisbon, Portugal. An arrest warrant was issued by the U.S. District Court for the Eastern District of New York alleging a violation of title 18 United States Code s.3146(a)(2).

The evidence in this application disclosed that the applicant left Portugal and came to Canada to stay with a friend in Toronto for two months. He then returned to Portugal and subsequently re-entered Canada on a work permit on December 22, 2012. According to the applicant’s affidavit filed in this proceeding, his family joined him in this country where they took up residency in Brampton.

In August of 2015, the United States Marshalls Service learned that the applicant, a fugitive from their jurisdiction, may have taken up residence in Canada. In due course, following a September 10, 2015 Grand Jury indictment of the applicant for his failure to surrender to serve his sentence, an indictable crime punishable by up to five years’ imprisonment, was issued out of the U.S. courts. There was ongoing communication during this time period between Canadian and United States authorities. The Canadian Border Security Agency (CBSA) advised U.S. authorities that proceedings were underway here to remove the applicant from Canada as an inadmissible person for return to Portugal. A report was written relating to inadmissibility by the CBSA on August 17, 2015, relating to the applicant’s 2009 U.S. conviction - this report having been prepared, apparently, pursuant to s.44 of the Immigration and Refugee Protection Act.

On September 18, 2015, the Attorney General of Canada on behalf of Canada’s extradition partner, the United States, applied to the Superior Court of Justice of Ontario for a provisional warrant of arrest pursuant to sections 12 and 13 of the Extradition Act. Justice Nordheimer issued the warrant leading to the arrest of the applicant.

Also relevant to the background context is the following information. One of the applicant’s proposed sureties, Jose Santos, deposed in his affidavit that he learned from the applicant that the applicant left the United States when he found that, after serving his sentence there, he would be deported from the United States.

The Applicant’s Background:

By way of background relating to the applicant, with a date of birth of June 16, 1971, he is currently 44 years of age. He was born in Portugal and moved to the United States in 1988. He was married in 1992 and subsequently had two children with the family residing in Long Island, New York.

Portugal is a dual-citizenship jurisdiction. The applicant is a Portuguese citizen. He has extensive family in Portugal, as does his spouse. Portugal does not extradite its own nationals.

The applicant’s affidavit maintains that he has been continuously employed in the construction industry up until the time of his arrest.

At the time of the arrest, the applicant was living with his wife and children in rented accommodation in Brampton. From the evidence heard this morning, it appears that the applicant was employed from January 2015 to the time of his arrest when not authorized to do so under a lawful work permit permitting his work in Canada. Although such a permit is now issued, it apparently cannot be activated without the applicant exiting and re-entering Canada.

The Prospective Sureties:

In this application, three prospective sureties’ affidavits had been filed - Jose Santos, Mario Mendes and Sonia Mendes. Mr. Santos and Mr. Mendes were born in Portugal. Each of the prospective sureties has known the applicant since 2012. They are friends.

Collectively, these individuals, if they were to become sureties, were prepared to pledge at least $250,000 to $300,000 and to, in addition, provide residency for the applicant and close supervision and to administer a GPS electronic bracelet program through the Recovery Science Corporation technology, which is described in the materials filed in this application.

In cross-examination on his affidavit, Mr. Santos exhibited, at best, a general sense only of the applicant’s legal circumstances in the United States. He did not know that the sentence faced by the applicant in the United States is a ten-month sentence, or what the consequences could be of the failure to surrender in August 2011. The witness indicated that he was reticent to pry into touchy subjects.

When cross-examined on his affidavit, Mr. Mendes expressed the belief that the applicant had gone to jail in the United States, he guessed for tax evasion. He was unaware of other potential legal consequences arising from a return of the applicant to the United States.

Positions of the Parties:

It was agreed that this proceeding was a reverse onus with the obligation on the applicant to establish on balance that his continued detention was no longer necessary. The placement of this onus comes about from the combined authority of s.19 of the Extradition Act and s.515(6)(b) and (c) of the Criminal Code.

Position of the Applicant:

On the primary ground as to whether detention remains necessary to ensure the applicant’s attendance for future court proceedings, s.515(10)(a) of the Code, Ms. Kerr noted that the applicant has roots in this community, having been a resident here with his wife and children, employed until arrested, and with friends in Canada. It was submitted that there was no evidence of such things as we might see in other cases of an applicant using aliases or committing other offences while here.

In submitting that there is no unacceptable risk of flight should the applicant be released on the proposed plan, Ms. Kerr summarized that plan in these terms - counsel noted, first of all, a sincerity and commitment of the prospective sureties, essentially prepared to pledge much of their required assets. The sureties understood their obligations respecting essentially house arrest, and it was submitted that a virtual house arrest plan, augmented by electronic bracelet and residential alarm technology, would amount to a regime in which the court could have real confidence. Deficiencies in the knowledge of Mr. Santos and Mr. Mendes as to the precise details of the applicant’s legal circumstance should not detract from those sureties’ commitment and acceptance of meaningful risk of substantial loss should their suretyship fail.

As to the tertiary ground, Ms. Kerr acknowledged the strength of the Crown’s case, while not foreclosing an abuse of process argument once there is additional disclosure and a more complete record. The offences were described as being of lesser gravity in the circumstances not involving violence or firearms.

In terms of a potentially lengthy sentence for the 10-month sentence and a sentence for the fail to surrender crime, having regard to the U.S. Attorney Burns’ letter (Exhibit 1) in 18 U.S. Code 1346 B2, it would appear that a sentence in the range of 25 to 40 months of imprisonment may be imposed in the United States. Ms. Kerr noted that while that would amount to a Canadian equivalent of a penitentiary sentence, it is still not a “lengthy” sentence in terms of what we understand the meaning of that phrase to be in s.515(10)(c)(iv).

In reviewing these factors and other circumstances, such as the applicant’s personal antecedents, Ms. Kerr submitted that a reasonable member of the public, properly informed, would be unlikely to lose confidence and respect for the administration of justice should the applicant be released on the proposed release plan.

The Crown Respondent:

Ms. Rice placed primary reliance on the primary ground arguing that a strong case exists on the record that the applicant will not appear for court proceedings. Counsel noted the lack of assets in Canada for the applicant and his wife. They have been in this jurisdiction for a short time only and are not Canadian citizens. The applicant and his spouse have family in Portugal.

As well, Ms. Rice submitted that the applicant’s past history is critical to the estimate of risk of flight. In 2011, facing only a 10-month sentence, the applicant was prepared to flee the United States where he was a permanent resident and had lived for 23 years, separating himself from his family and subsequently moving his family from that jurisdiction to another jurisdiction. It was argued that now only three years in Canada, and facing the reality of a longer sentence, there can be no confidence that the applicant will not repeat the process of becoming a fugitive. Counsel further noted the ongoing immigration removal proceedings and the strength of the case respecting the United States’ case for extradition.

In respect to the proposed release plan, Ms. Rice noted the limited knowledge of the two sureties who testified respecting the applicant’s legal circumstances, the relative shortness of their friendships, the lack of commitment of personal assets by the applicant, the uncertainty respecting Mr. Santos’ assets and the limits of electronic bracelet monitoring. It was submitted that even with conscientious sureties, the applicant has an incentive, and has shown a propensity, to flee.

As to the tertiary ground, counsel emphasized the strength of the government case, the irrelevance of the presumption of innocence respecting the service of the lawfully imposed sentence in the United States, and the important circumstance of the extradition context of ensuring in particular that a fugitive serves the sentence already ordered by an extradition partner.

Analysis:

S.18(b) of the Extradition Act provides that following arrest on a provisional warrant, the court before whom the arrestee is brought shall order release, with or without conditions, or detention in custody of the person detained. S.19 of the Act incorporates the statutory scheme relating to bail as codified in Part XXVI of the Criminal Code with such modifications that the circumstances require.

“Extraditable conduct”, as defined in s.3 of the Extradition Act, includes the request of an extradition partner for the purpose of prosecuting the subject person or enforcing a sentence upon a person. The applicant, as a fugitive from the United States, having fled that jurisdiction to escape incarceration relating to a crime to which he had pled guilty and had been sentenced without appeal, further faces an outstanding indictment for the crime of failing to surrender for service of a sentence ordered pursuant to a court order in New York.

The case for an acceptable risk that the applicant will appear in court, should he be released, is strongly driven by the restrictive surety plan described in the evidence in the record filed, the electronic bracelet option and the home alarm factor, all in light of an individual with family and history here in Canada from 2012 to the present. It is further augmented by three sureties prepared, on the basis of their affidavits and the evidence of two of the proposed sureties, to enforce a near house arrest supervision. Standing against this are significant factors which make flight more than speculative:

1. The applicant has no assets here, is unable to lawfully work, and has pending deportation proceedings;

2. The applicant’s tenure in Canada in the neighborhood of approximately three years is not substantial. Neither he, nor his family, are Canadian citizens;

3. The applicant was prepared to evade a court order in 2011 in the United States and to have his family and country of residence for 23 years left behind when only facing the prospect of a 10-month sentence, a shorter period of incarceration than now faced for which no defences on the current record have an air of reality;

4. The applicant and his wife have family in Portugal; he has Portuguese citizenship; and Portugal, his choice of a refuge when he fled from a 10-month sentence, does not extradite its own citizens;

5. The applicant has demonstrated dishonesty before in terms of his 2009 tax evasion crime and his work here in 2015 in Canada without an authorized work permit. While the sureties are undoubtedly well-meaning, they do not have a depth of friendship and knowledge respecting the applicant which inspires confidence despite their proffered pledges.

6. Electronic monitoring has its own limitations, as discussed in some of the Authorities in the Respondent’s casebook, and in R. v. Kahsay 2015, ONSC 1775, at paras. 47-56, 61, 63, 69 and 94; and in R. v. Obi 2015, ONSC 3716, at paras. 34-36.

On the totality of the evidence, the likelihood of the applicant seeking to flee would involve him, I am satisfied, in an effort to defeat the release plan proposed. On balance, it cannot be said that the applicant has discharged the onus that if released, he would appear for court.

The tertiary ground, on the record here, also has not been satisfied, in my view. Release of the applicant would erode the public’s confidence in the administration of the bail system and the criminal justice system more broadly.

The applicant is facing sentence for the 2009 conviction and is also facing an indictment for the failure to surrender. He is a fugitive from a lawfully imposed sentence in the United States and the circumstances of his failure to surrender were to defeat serving that sentence. He is potentially subject in the United States to a penitentiary-equivalent sentence.

I also note the expectations in the extradition context of our international partners expecting that sentences lawfully imposed in their jurisdiction will ultimately be served.

It is important to note as well, in talking about the tertiary ground, that extradition proceedings are meant to be expeditious and to facilitate prompt compliance with Canada’s treaty obligations. (See United States v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 122; France v. Diab 2014, ONCA 374 at para. 37 (leave to appeal refused), [2014] S.C.C.A. No. 317).

Accordingly, on both the primary and the tertiary grounds, I am not satisfied that the applicant has not discharged the onus of demonstrating on balance that his continued detention is no longer necessary.