FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] Tiago Mello-Lima is wanted in the United States of America on charges concerning the unlawful smuggling of individuals across the Canadian border. He is held in custody pending an extradition hearing scheduled for 20 January 2020.

[2] Section 19 of the Extradition Act applies the judicial interim release sections of the Criminal Code to extradition bails “with any modifications that the circumstances require”. In United States of America v. Edwards, 2010 BCCA 149, 288 B.C.A.C. 15, the court found that Canada’s international treaty obligations provided a mandate for courts to consider “risk of non-appearance even more cautiously than might be the case in domestic proceedings”. This principle has been followed in several cases: United States of America v. Mardi, 2010 ONSC 6666, at paras. 4-5; and United States of America v. Ugoh, 2010 O.J. No. 6303 (S.C.), at para. 3.

[3] Although this principle is an important factor in determining whether bail is granted in extradition cases, it is not determinative.

Factual Background

[4] In August 2017, Mr. Mello-Lima, a Brazilian national, illegally entered Canada from the United States after paying $3,000 to be driven in a truck across the US border into Montreal. After being arrested by Canada Border Services Agency (CBSA) officials, in September 2017 Mr. Mello-Lima filed a refugee claim, basing his application on a fear of criminals who wanted him dead if he returned to Brazil. Mr. Mello-Lima was released, pending the completion of the refugee process, on an immigration bond of $5,000 with attached conditions. His bondsperson was named as Danielle Jamur, the primary surety proposed in Mr. Mello-Lima’s bail plan.

[5] The allegations that brought Mr. Mello-Lima to the United States’ attention surfaced on 17 March 2019 when a US resident informed authorities that he had seen a small boat deposit four males on Grand Island, New York, and then leave. The men were stopped and questioned by border patrol agents who discovered the men were from Brazil and had entered the US illegally. Each of the men told the authorities that they had been brought to the US by a man named “Tiago”. Three of them identified Mr. Mello-Lima as “Tiago” when shown a photo array. The fourth man indicated that he had only met “Tiago” that morning and could not positively identify him from the photos shown.

[6] All of the transportees have entered into co-operation agreements with the US Attorney’s office. Those agreements provide immunity in exchange for testimony. All of the men told the authorities that they had agreed to pay “Tiago” amounts ranging $6,000-$8,000 for their entry into the US.

Who Bears the Onus?

[7] In the normal course of events of a bail hearing, the Crown would bear the onus of showing cause why Mr. Mello-Lima’s detention is justified.

[8] However, s. 515(6) of the Criminal Code reverses that onus in certain situations. One of those situations is when a detained accused has been charged with an indictable offence and is not “ordinarily resident in Canada”.

[9] The Crown argues that since Mr. Mello-Lima has been convicted of serious criminal offences in Brazil, he is ineligible for refugee status and cannot be said to be lawfully within the country and therefore not “ordinarily resident in Canada”. The defence does not dispute this principle but argues that in order to rely on the reverse onus provision, the Crown must provide evidence to demonstrate that Mr. Mello-Lima would be deported from Canada by producing documentary evidence to that effect from the immigration authorities.

[10] The phrase “ordinarily resident in Canada” has been held not to apply where a person is in the country unlawfully: R. v. Jonas (1981), 1981 4950 (ON SC), 25 C.R. (3d) 325 (Ont. H.C.); R. v. Oladipo (2004), 2004 46658 (ON SC), 191 C.C.C. (3d) 237, at para. 17. Refugee status, of itself, however, does not mean that the detainee automatically falls within the reverse onus provisions. A person claiming refugee status is still lawfully in Canada even if their status has not been confirmed: Oladipo, at para. 19. A more contextual approach is required when assessing the reverse onus provisions in these circumstances. In Oladipo, Wein J. held that a court should assess whether the refugee claim is unlikely to succeed or inquire into any “indicia of stability” before deciding whether the reverse onus provisions apply.

[11] In Italy v. Commisso, [2005] O.J. No. 6319 (S.C.), Dunnet J. found that under s. 37(1) of the Immigration and Refugee Protection Act, a permanent resident was not admissible in Canada if they were a member of a criminal organisation. Since the applicant for bail in that case had been convicted of an analogous offence, Dunnet J. found that he was not “ordinarily resident in Canada” and it was his onus to show cause for release.

[12] In this case, the Crown relies upon Mr. Mello-Lima’s prior criminal record in Brazil: convictions for distribution of child pornography and fraud. Mr. Mello-Lima also faces charges of attempted murder with an outstanding arrest warrant waiting in Brazil. The materials filed by the parties show that the child pornography conviction involved the filming and distribution of videos of sexual acts between an underage female and two adult males in August 2008.

[13] Under s. 101(1)(f) of the Immigration and Refugee Protection Act, a refugee claimant would be deemed ineligible if the claimant had been determined to be inadmissible on grounds of serious criminality.

[14] The Crown relies on this section and Oladipo to argue that Mr. Mello-Lima’s criminal record makes it highly unlikely he will succeed in his refugee claim because his criminal history would fall within the definition of “serious criminality”. Following Oladipo and Commisso, the onus to show cause falls on him. Mr. Mello-Lima, on the other hand, submits that the Crown has failed to produce evidence, documentary or otherwise, showing that his claim would fail, and therefore cannot rely on the reverse onus provisions.

[15] I am of the view that this is a reverse onus situation based on Oladipo and Commisso.

[16] However, I am also of the view that the point is immaterial: even if this was a “Crown onus” hearing, I find that the Crown has discharged its burden and has shown cause why Mr. Mello-Lima’s detention is justified.

The Primary Ground Concerns

[17] As described, Mr. Mello-Lima is a refugee claimant who entered the country illegally sometime in August 2017 and filed his application after he was arrested by CBSA officers 30 September 2017. He was released on a $5,000 cash bond with conditions. His bondsperson, Danielle Jamur, is also proposed as a surety in this hearing. He has a teenage son, Victor, who resides in Canada although it would appear that Mr. Mello-Lima and his son have been living separately in recent times due to a conflict with Mr. Mello-Lima’s girlfriend, Jessica Medeiros, with whom Mr. Mello-Lima recently had a son.

[18] There is no doubt that the US charges that Mr. Mello-Lima faces are very serious and carry substantial custodial sentences. The strength of the Crown’s case for committal to the United States is significant: the threshold for committal is low and requires only “some” evidence of the offence – the same standard as required for committal in preliminary hearings.

[19] Here, there is evidence of co-conspirators; Mr. Mello-Lima has been identified by several individuals as the person who transported them to the United States. The seriousness of the allegations cannot be in doubt: Mr. Mello-Lima is accused of smuggling a total of 13 people across the Niagara River to the United States. I accept that Ms. Medeiros has provided an affidavit setting out an alibi for Mr. Mello-Lima, however I note that her evidence is strikingly short on detail and, in any event, would not affect the case for committal.

[20] In light of the likelihood of committal to the US, one of the major concerns that this hearing has sought to address is whether Mr. Mello-Lima poses a flight risk and, if so, what type of interim release order can be created to assuage that concern.

[21] In my view, the risk of Mr. Mello-Lima fleeing the country is very real. The United States Extradition Treaty with Brazil provides that Brazil is not required to extradite its citizens. The evidence shows that the US Department of Justice, Office of International Affairs has advised that the offence Mr. Mello-Lima faces does not appear to be an extraditable offence under the Treaty. There is the distinct possibility that if Mr. Mello-Lima returns to Brazil, that country will decline a US request to extradite him. There is every incentive for Mr. Mello-Lima to return to his native country, with Ms. Medeiros and their son, to avoid the possibility of trial, conviction, and a lengthy jail sentence in the US notwithstanding the outstanding Brazilian arrest warrant.

Secondary Ground Concerns

[22] There are also grounds for finding that there is a substantial likelihood that if released, Mr. Mello-Lima would commit further offences.

[23] Mr. Mello-Lima has a significant criminal record in Brazil. These allegations occurred whilst Mr. Mello-Lima was on an immigration bail, the conditions of which made clear that he was prohibited from engaging in any activity which would result in a criminal conviction. The allegations concern not just one instance of smuggling but several.

[24] I find that there is a substantial likelihood of Mr. Mello-Lima reoffending if released.

Tertiary Grounds

[25] Under this ground, s. 515(10)(c) of the Criminal Code states that detention can only be justified 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.

[26] I have already noted that the Crown’s case appears to be very strong in the context of committal for extradition. I repeat my observation that the allegations are very serious. The circumstances of the commission of the offence show repeated illegal visits to the United States smuggling individuals who had no right to be there. Finally, if convicted, Mr. Mello-Lima would be facing a mandatory minimum five-year sentence in the United States. As the Crown also points out, the sentence for the offence, if convicted in Canada, amounts to a mandatory minimum of three years.

[27] In short, a consideration of the cumulative effect of all four tertiary ground factors leads me to the conclusion that the Crown has shown that detention is justified under this heading.

The Surety

[28] In order to assuage the court’s concerns on all three grounds, Mr. Mello-Lima called, as his surety, Danielle Jumar. Ms. Jumar, now 38 years old, has known Mr. Mello-Lima since the age of 13 when they both lived in Brazil. According to Ms. Jumar, the two had a romantic relationship when they were younger but are now friends. In cross-examination, Ms. Jumar testified that they had never been romantically involved since Mr. Mello-Lima came to Canada. As noted, Ms. Jumar is Mr. Mello-Lima’s bondsperson whilst he awaits a decision on his refugee application.

[29] Ms. Jumar is the mother of three children aged 15, 12 and 2 years and works as a cleaner. She testified that she works approximately 17-19 hours a week and earned approximately $5,000-6,000 per month. The plan is that Mr. Mello-Lima, Ms. Medeiros and their son would move in with Ms. Jumar into her three-bedroom condominium apartment. Ms. Jumar offered herself as a surety testifying that she had $35,000 in savings, all of which could be the amount of surety if Mr. Mello-Lima was released.

[30] I have little confidence in Ms. Jumar both as a witness and a surety. During the course of her cross-examination, it was clear that she had told falsehoods to the CBSA when offering herself as a bondsperson for Mr. Mello-Lima.

[31] For example, she told the court that any romantic relationship with Mr. Mello-Lima ended in Brazil. She made clear that after he arrived in Canada, they were not intimately involved. However, in her answers to the CBSA, when asked about her relationship to Mr. Mello-Lima, she responded that he was her boyfriend. The Crown argues that she did so because she was seeking to portray a closer relationship to Mr. Mello-Lima to enhance her status as bondsperson. She also told the CBSA that she earned $25,000, a figure that contradicts her testimony at this hearing when she described an annual income ranging from $48,000 to $72,000. Again, the Crown argues that this was to attempt to get a lower bond rate than would have been otherwise imposed. I agree with the Crown on both points.

[32] I find that Ms. Jumar has no difficulty massaging the truth when she feels there is an advantage in doing so and cannot be relied upon as a surety. I also find her personal circumstances to erect a barrier to being a surety in this matter. She works during the day and would have no supervisory control over Mr. Mello-Lima at that time. Although she testified to working 17-19 hours a week, Mr. Mello-Lima said that he understood her to be employed for 40 hours a week. She has three children including a two-year-old which would require the bulk of her attention.

[33] Accordingly, I find that Mr. Mello-Lima’s plan for release is fatally deficient and must be rejected.

[34] For these reasons, I find that the Crown has shown cause that Mr. Mello-Lima’s detention is justified.

S.A.Q. Akhtar J.

Released: 8 November 2019

COURT FILE NO.: CR-19-00000134-00MO

DATE: 20191108

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA

– and –

TIAGO MELLO-LIMA

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

Attorney General of Canada v. Mello-Lima, 2019 ONSC 6457

Case Summary

FACTUAL BACKGROUND AND OVERVIEW

Introduction

Factual Background

Who Bears the Onus?

The Primary Ground Concerns

Secondary Ground Concerns

Tertiary Grounds

The Surety

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 2