Court File and Parties
Court File No.: CR-20-90000061-00MO Date: 2020-04-20 Ontario Superior Court of Justice
Between: THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA, Respondent – and – SYED ALI RAZA, Applicant/Person Sought
Counsel: Rebecca Sewell, for the Attorney General of Canada Sunny N. Vincent, for the Applicant/Person Sought
Heard: April 15, 2020
Before: R.F. Goldstein J.
[1] Mr. Raza was the leader of an identity theft scheme in the New York area. The perpetrators of the scheme used the identities of immigrants to open bank accounts and obtain loans. The perpetrators also obtained merchant terminals and used them to fraudulently obtain funds. He eventually pleaded guilty to one count of conspiracy to commit access device fraud and one count of aggravated identity theft. He fled from the United States to Canada before his sentence was imposed. He is currently in custody in Canada pursuant to both an immigration hold and an extradition arrest warrant.
[2] Mr. Raza seeks bail on the Extradition Act proceeding. His counsel, Mr. Vincent, argues that there is a plan in place that mitigates the risk that he will flee or commit further offences. Mr. Vincent also argues that Mr. Raza has health issues. He has a vulnerable immune system for which he is taking testosterone treatments. This vulnerability makes him susceptible to the current Covid 19 pandemic. Accordingly, argues Mr. Vincent, he should be released.
[3] For the reasons that follow, the application for bail is dismissed. The possibility that Mr. Raza will flee is very high; indeed, I am as close to certain as a judge hearing a bail application can be that Mr. Raza will try to flee this country to evade justice. The plan of release is totally inadequate. Moreover, the evidence is not sufficient to show that Mr. Raza is especially vulnerable to Covid 19. He is detained on the primary and tertiary grounds.
BACKGROUND
[4] On May 17, 2019 Mr. Raza pleaded guilty to the two counts pursuant to a plea agreement. On September 17, 2019 U.S. District Court Judge Caproni sentenced Mr. Raza to three years in prison.
[5] Mr. Raza and his confederates obtained the personal information of immigrants who had left or were preparing to leave the United States. They used this personal information to open bank accounts and lines of credit, and to apply for business loans. They perpetrated a false refund scheme as well: they would charge credit cards either with colluding merchants or on fraudulently obtained merchant terminals. They would then request refunds based on allegations of fraudulent charges. The credit cards were used to obtain refunds until the card issuers shut them down. Mr. Raza and his confederates also set up shell companies. The shell companies were used to create phony businesses. These phony businesses created the appearance of proper businesses with storefronts, simulated inventory, and signs. The phony businesses were used to obtain merchant terminals for the fraudulent transactions. The phony businesses were also used to fraudulently obtain loans and advances. The victims of the scheme included several unwitting victims who had their identities stolen, merchants, and financial institutions. Mr. Raza was responsible for losses of over $380,000.00.
[6] In the United States, offenders can be ordered to turn themselves in to the Bureau of Prisons at a date in the future. That is different from the Canadian requirement that a sentence is to commence as soon as it is imposed: Criminal Code, s. 719(1). Judge Caproni ordered Mr. Raza to surrender on November 15, 2019.
[7] Mr. Raza had been on bail. On November 7, 2019 he cut his GPS ankle bracelet. A warrant for his arrest was issued on November 8, 2019. Mr. Raza did not surrender to the Bureau of Prisons on November 15, 2019 as Judge Caproni had ordered. Instead, fled to Canada. It is unclear how he crossed the border. The Canada Border Services Agency arrested him on March 3, 2020. On March 5, 2020 CBSA advised the American law enforcement authorities that they had Mr. Raza in custody. Mr. Raza was identified by means of comparison between fingerprints taken by CBSA and his fingerprints on file in the United States. He was subsequently arrested pursuant to a provisional arrest warrant issued under s. 13 of the Extradition Act. He was also identified by an FBI agent. The agent recognized Mr. Raza from a photograph taken by CBSA.
[8] The United States has 60 days to file a formal request for extradition from the date of arrest; the Minister then has 30 days to issue and the Authority to Proceed. The United States has not yet filed its formal request.
ANALYSIS
[9] This is a reverse-onus bail hearing. The bail provisions of the Criminal Code apply to proceedings under s. 19 of the Extradition Act. A person charged with an indictable offence who is not ordinarily resident in Canada must show why his or her detention is not justified: s. 515(6)(b) of the Criminal Code; United States of America v. Correia, 2015 ONSC 6996 at para. 27; United States of America v. Oyola, 2020 ONSC 1804 at paras. 30-34.
[10] There is no doubt that Mr. Raza’s conduct would be criminal in Canada: the equivalent offence here of access device fraud and aggravated identity theft is fraud over $5000: Criminal Code, s. 380(1). It is therefore extraditable conduct: Extradition Act, s. 3(1).
[11] There is also no doubt that Mr. Raza is not ordinarily resident in Canada. He is a citizen of Pakistan. He is a permanent resident of the United States. He crossed the border into Canada illegally. It is unclear how he crossed the border, but it is clear that he did so in a manner designed to evade Canadian border and immigration authorities. He has no status in this country. He has virtually no connections here, other than his brother, who has not come forward as a surety.
[12] I must therefore decide whether Mr. Raza has met his onus on the primary, secondary, and tertiary grounds. These are the issues:
- Is Mr. Raza a flight risk?
- Is Mr. Raza likely to commit further offences?
- Is Mr. Raza’s detention necessary to maintain confidence in the administration of justice?
(a) Is Mr. Raza a flight risk?
[13] Mr. Vincent does not really argue that there is no risk that Mr. Raza will flee. Rather, he argues that the risk of flight can be mitigated with a good plan of release and good sureties. He also points to the health risk posed by Covid 19. Mr. Raza has, he argues, real health issues that require him to be kept out of Ontario’s correctional institutions.
[14] I disagree. For obvious reasons the risk of flight is high and real. Mr. Raza deliberately fled from the United States, where he has the ties of a wife, a business, and a step-daughter. He has no ties here. The health risks he mentions carry little weight, for reasons that I will explain.
[15] I start first with the risk of flight.
[16] One of the documents submitted by the Attorney General was a letter from Geofferey S. Berman, the U.S. Attorney for the Southern District of New York. The letter set out what Mr. Berman described as the “enormous” flight risk. After Mr. Raza cut his GPS ankle bracelet the FBI and U.S. Marshals Service investigated his whereabouts. The investigators discovered that Mr. Raza took pains to plan his escape. They discovered that he liquidated his business assets and took over $50,000 in cash with him. Mr. Raza’s wife understood Mr. Raza’s business assets were to be transferred to her name; instead, the business and family home were left with large debts and tax arrears. The investigators also discovered that Mr. Raza applied for and used over a dozen cell phone numbers so that it would be difficult to track him using cell tower technology. Investigators also learned, from a cooperating witness, that Mr. Raza sought contact with Pakistani officials who could procure false documents for him.
[17] Mr. Vincent objected to placing reliance on Mr. Berman’s letter. The basis of the objection is not clear to me. I do accept the letter. A justice presiding at a bail hearing may “receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case”: Criminal Code, s. 518(1)(e).
[18] The letter is from the U.S. Attorney. It is based on investigation conducted by the FBI and the U.S. Marshals. Information gathered by Canadian police is routinely read into evidence at a bail hearing to form part of the allegations. I see no reason why the information should be treated differently simply because it comes from a foreign law enforcement source. I am aware that some information from foreign law enforcement agencies must be looked upon sceptically depending on the source. The United States is an extradition partner with which Canada has extensive diplomatic, military, cultural, and legal ties. It is a fellow democracy where the rule of law exists. There certainly have been cases where the defence has been able to discredit information coming from the United States or another democratic extradition partner – or at least point to problems and discrepancies. Mr. Vincent does not point to anything in particular other than a general objection.
[19] I am therefore prepared to take the information provided in the letter into account – with the exception of the information provided by the cooperating witness. The information appears consistent with Mr. Raza’s criminality, but it is double hearsay (at best). Moreover, unlike the financial and cell phone information, that information does not seem to have a concrete basis.
[20] Another troubling aspect of the evidence involves Mr. Raza’s passport. During the course of the hearing there was no evidence regarding the fate of Mr. Raza’s passport or green card. I asked during submissions if anyone knew the location of Mr. Raza’s passport. Ms. Sewell, counsel for the Attorney General, did not have any information. Mr. Vincent responded by asking Mr. Raza. Mr. Raza did not directly answer the question. He simply stated that the person who smuggled him into Canada asked for his green card and other identification documents. He has not seen them since he entered this country. He did not specifically mention his passport.
[21] There are problems with that answer. It was not under oath and Mr. Raza was not asked about his passport when he was under oath. I am prepared to take it into account as an explanation for Mr. Raza’s lack of identification in this country. That said, it still does not answer the question of the location of his passport.
[22] Mr. Raza has also been indicted for bail-jumping. That offence carries a further potential sentence of five years in the United States. Mr. Raza is thus no longer liable simply for the three-year penalty imposed by Judge Caproni.
[23] Based on the evidence before me I find that the risk of flight by Mr. Raza is not just high, it is overwhelming. Mr. Raza apparently fled the United States using a well-prepared and sophisticated plan. He fled with over $50,000 in cash and it is not clear what has happened to that money. I infer that he still has access to at least part of it. He appears to have other resources available to him. It is not clear what has happened to those resources. Mr. Raza has demonstrated that he has the skill, motive, and capacity to plan and execute a sophisticated escape plan. Mr. Raza’s passport is also unaccounted for. That is extremely troubling.
[24] The plan of supervision completely fails to mitigate the risk of flight.
[25] Mr. Raza put forward two sureties: Anjam Anjam and Syed Ali Hassan. The plan is that Mr. Raza live with Mr. Anjam and that Mr. Hassan check on them from time to time. There is no further detail.
[26] Mr. Hassan is Mr. Raza’s first cousin. They hail from the same village in Pakistan. He lives in Toronto with his wife. He is a limousine driver. He is able to drive over to Mr. Anjam’s house to check on Mr. Raza from time to time. He has $10,000 that he can pledge. That money represents his life savings.
[27] Mr. Hassan testified that he has not seen Mr. Raza since they were children in Pakistan many years ago. They have kept in touch by text, although the details are very vague. The text messages appear to be part of a family text group. Otherwise they have never communicated one-to-one. He does not know anything about how Mr. Raza came to be in Canada. His wife and children have never met Mr. Raza. He did not visit Mr. Raza in the United States.
[28] Mr. Anjam is an old friend of Mr. Raza’s late father. He ran his own business until 2011, when he was injured in a car accident. He is now on a disability pension. He is a member of the Para Canadian Table Tennis team. He stays home all day and can supervise Mr. Raza. He has $10,000 that he can pledge.
[29] Mr. Anjam also has not seen Mr. Raza since Mr. Raza was a very young child in Pakistan. They appear to have chatted on the telephone once. That was when Mr. Raza’s father died and Mr. Anjam called him to offer his condolences. He also mentioned that they have been in touch by text message, but, again, the details are vague.
[30] I find that these two sureties are well meaning but they are not capable of supervising Mr. Raza. They barely know him. They have not seen him for years. They know nothing about him. They appear to know nothing about how he came to be in Canada. They only know that he is in trouble and needs their help.
[31] Mr. Raza committed a pecuniary crime that victimized innocent people. He fled from the United States taking assets but leaving his wife and stepdaughter with nothing but debts and tax arrears. He has demonstrated that he has no regard for the financial security of others, even those close to him. I have no confidence that the $10,000 that would be posted by each of Mr. Anjam or Mr. Hassan would represent any hindrance at all to him. Although the money is clearly significant to Mr. Anjam and Mr. Hassan, it would not even register as a speed bump on Mr. Raza’s road out of town.
[32] I turn next to the impact of the current Covid 19 pandemic. The pandemic is a circumstance that I must consider in relation to the risk to Mr. Raza’s health in the context of the risk of flight.
[33] Several judges of have assessed the impact of the pandemic in bail decisions. In R. v. J.S., 2020 ONSC 1710, the accused was detained on drug trafficking charges. He brought a bail review in this court based on two material changes in circumstances: first, a different plan of release from that proposed at the initial bail hearing; and second, the prevalence of Covid 19. Copeland J. agreed that these changes in circumstance were material. She found that there was an elevated risk to inmates as a result of the pandemic. Her view was that the elevated risk to inmates posed by the pandemic should be assessed on the tertiary ground. She stated at para. 19:
But I take notice of the fact, based on current events around the world, and in this province, that the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate at home. The virus is clearly easily transmitted, absent strong social distancing or self-isolation, and it is clearly deadly to a significant number of people who it infects. The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells. I note that this factor concerns not only Mr. S.'s own health, but also the preservation of scarce hospital resources to treat patients. If more people are infected, those resources will be more strained.
[34] In R. v. Rajan, 2020 ONSC 2118, Harris J. agreed with Copeland J. He quoted from J.S. He further stated at paras. 54-57 (I excerpt parts):
There is one watchword heard loud and clear throughout the world today, including in this province. It is "social distancing" or "physical distancing." This is the main tool advocated by the public health professionals and politicians around the globe… In all of this upheaval, to be in a jail as an inmate or a staff member must count as one of the most dangerous places imaginable. Physical distancing in any true sense is simply not possible. One does not have to have been in a jail to realize this. A jail is a government-enforced congregation of people. That is inherent in its very concept. When density and human contact are to be avoided, jail cannot be a safe place to be. Inmates and staff are in close quarters in jail…
[35] Some judges have taken a different view. In R.v. Jeyakanthan, 2020 ONSC 1984, McWatt J. considered an inmate being held at the Toronto South Detention Centre. At the time of the bail review there had been one case of a guard contracting Covid 19. There was no evidence of a Covid 19 outbreak among the inmates or that the authorities were unable to cope. On the contrary, there was evidence of action taken by the institutional authorities to deal with the virus. Mr. Jeyakanthan was a young man. There was no medical evidence that he was more susceptible to the virus. McWatt J. dismissed the application.
[36] In R. v. Nelson, 2020 ONSC 1728 the applicant sought a bail review on the basis of a material change in circumstances. That material change was the Covid 19 pandemic. There was no medical evidence that Mr. Nelson had a medical condition that made him more susceptible to the virus. Edwards J. agreed that the pandemic was a factor to be considered. However, Edwards J. also said this at para. 35:
I suspect that as the virus worsens, we may see more applications for bail. While Mr. Nelson did not specifically address any physical or mental health issues posed by the virus and his continued detention, it will be important that future applications proceed with the benefit of at least some rudimentary evidence that could suggest an accused is more susceptible to contract the virus due to underlying health issues.
[37] In R. v. Kazman, 2020 ONCA 251 an offender sought bail pending appeal. He was convicted of fraud and money laundering. In arguing the public interest aspect of the test for bail pending appeal, the offender’s counsel raised the Covid 19 pandemic. There was evidence that the 64-year old offender suffered from asthma, respiratory issues, and a heart condition. He was also in an age group that was particularly vulnerable. Harvison Young J.A. agreed that in the circumstances of that case the release of Mr. Kazman would not undermine public confidence in the administration of justice. However, Harvison Young J.A. went on to say at para. 20: “I emphasize that this does not mean that bail will be granted in any case where COVID-19 is raised as an issue.”
[38] See also: R. v. Phunstock, 2020 ONSC 2158; R. v. Budlakoti, 2020 ONSC 2159.
[39] I agree that the pandemic is a factor that must be taken into account on a bail hearing, whether it is a material change of circumstances or (as in this case) at an initial bail hearing. I agree with McWatt J. and Edwards J. that Covid 19 should not result in an automatic assumption that jail is clearly more dangerous than release.
[40] So far, there is simply no evidence that Covid 19 represents an elevated risk to inmates in custody or that there is a higher prevalence of Covid 19 in the jail population than among the general public. It may seem intuitive at first glance that jails are a place where a virus can run rampant, but that does not seem to have happened in Ontario. There has been no evidence filed by Mr. Raza that Maplehurst is an institution where there is a higher risk of contracting Covid 19 than any other place in the province.
[41] Crown counsel filed an Information Note regarding the prevalence of Covid 19 in Ontario’s correctional institutions as of April 7, 2020. According to the Note, Ontario has released numerous prisoners. There was a 26.9% reduction in inmates in Ontario’s correctional institutions between March 16, 2020 and April 7, 2020. The inmate population is now at its lowest level since the 1989/1990 fiscal year – a time when Ontario’s population was approximately a third smaller than it is now. As of April 7, 2020, 103 inmates in Ontario’s correctional institutions had been tested for Covid-19; there were 63 negative results, five positive results, and 38 pending results as of that date. According to an Information Note related to Maplehurst dated April 14, 2020 there had been one inmate who had tested positive for Covid 19 on April 12 at that institution. That inmate had been moved to a hospital. There are currently no cases of Covid 19 at Maplehurst. Of course, that could change – as both Notes point out, jails are dynamic places.
[42] Both Notes described the procedures that the institutional authorities have taken to prevent the spread of Covid 19. The Note of April 7 described the screening procedures that have been implemented for both staff and new inmates to prevent the entry of Covid 19 into the jails.
[43] Respectfully, I disagree with the automatic assumption that jails are a place with a higher risk that the pandemic will spread. With respect, that is based more on intuition than on evidence. One may equally intuit the opposite. It is true that jails are a place where people are often at close quarters – yet it is also true that correctional authorities have the means to enforce social distancing and isolation measures that are not available in the general public. Indeed, jail authorities have can monitor and track inmates in ways that the authorities cannot outside the institutions. Of course, the measures that jail authorities may use – lockdowns and isolation – may not be pleasant (and I am not encouraging them) but they exist. Moreover, even without lockdowns and isolation, institutional authorities have the ability to confine non-infected prisoners to separate ranges in an institution. That ability does not exist for persons on bail.
[44] Ironically, this court and the Ontario Court of Justice have consistently credited inmates for time spent in custody on lockdown, where interaction between inmates is highly limited. North J. very recently described one prisoner’s experience of a lockdown in R. v. Behm, 2020 ONCJ 133 at paras. 26-27:
When not subject to a lockdown inmates at the Toronto South Detention Centre are in their cells from 9:30 p.m. until 8:00 a.m…
During a full day lockdown, two to eight inmates in a unit are let out of their cells at a time for thirty minutes to access phones, showers and sometimes the yard. There are four phones and two showers in a unit.
[45] In my view, therefore, it is not enough for an applicant for bail to simply raise the specter of Covid 19 and assert that jails are more dangerous than being out in public. There must be some evidence to show that an inmate more susceptible to the virus or that incarceration places an inmate at higher risk.
[46] At the same time, the Crown must demonstrate that institutional authorities are capable of coping with the pandemic and continue to take appropriate measures. The Information Notes filed by the Crown should be routinely updated. In the absence of such evidence judges may well infer that the authorities are not taking proper measures or that the risk has elevated. That evidence is absolutely necessary so that courts can balance the risk to an accused person against the risks on the primary, secondary, and tertiary grounds.
[47] I turn next to Mr. Raza’s situation.
[48] Mr. Raza deposed in a supplementary affidavit that he has a weak immune system. For the past three years he has been given a testosterone injection every four months. He says that the injection is to boost his immune system. Mr. Raza is currently incarcerated at Maplehurst Institution. He has not received a testosterone injection since he has been there. Mr. Raza also deposed that he has high blood pressure.
[49] In cross-examination on his affidavit, Mr. Raza was unable to name his condition. He says that his doctor told him: “your body does not work”. He testified that he provided the name of his doctor in New Jersey to his lawyer but that he has obtained no documents. He does not have a prescription for this injection because, he testified, it is given to him by a urologist at a medical facility. He did agree that there is a nurse at Maplehurst who makes rounds three times per day. He also testified that the prison authorities have given him his high blood pressure medication as well as Tylenol.
[50] It is very difficult to assess Mr. Raza’s medical condition. He appears to suffer from high blood pressure, but he is receiving blood pressure medication regularly. There is no evidence before me as to whether high blood pressure is a factor that places people at higher risk during the pandemic.
[51] It is also very difficult for me to assess whether Mr. Raza’s allegedly compromised immune system places him at a greater risk. I have grave doubts about the credibility of his assertion. It is not backed up by any documentary evidence. There is no medical opinion. There appears to have been no effort made to obtain Mr. Raza’s medical records from New Jersey, and no explanation why the records were not sought. Mr. Raza could not even name the condition that requires him to take testosterone shots. Mr. Raza is a convicted fraudster who has been less than forthcoming with the truth about the manner in which he came to Canada. It is simply too convenient for Mr. Raza to assert a medical condition that cannot be named or documented. In the absence of any documents or other medical assessment I give his assertion no weight.
[52] In my view, the plan is totally inadequate given the flight risk represented by Mr. Raza. Quite frankly, I doubt that even the strongest plan with the best sureties would mitigate the flight risk. This is not the strongest plan with the best sureties; this is a weak plan with well-meaning but weak sureties. The balance therefore falls towards detention. The risk of flight is extremely high as compared to the inchoate medical risk to Mr. Raza. Mr. Raza has failed to meet his onus on the primary grounds.
(b) Is Mr. Raza likely to commit further offences?
[53] There is no specific evidence that Mr. Raza is likely to commit further offences. There is no evidence that he has a criminal record or that he was on bail for other offences when he committed these crimes. Nonetheless, Mr. Raza’s criminality reveals a pattern. It was not a one-time thing. Some aspects of the crime could be committed, I am sure, simply with a computer. While I cannot discount the possibility that Mr. Raza will not commit further offences, I am not able to point to anything specifically. Ultimately, I find that he has met his onus on the secondary ground – barely.
(c) Is Mr. Raza’s detention necessary to maintain confidence in the administration of justice?
[54] Mr. Raza bears the onus of showing that his detention is not necessary to maintain confidence in the administration of justice. In my view, he cannot do so.
[55] Subsection 515(10)(c) of the Criminal Code states:
515(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:
(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.
[56] Turning to the factors, the apparent strength of the prosecution’s case is obvious. Mr. Raza pleaded guilty. The gravity of the offence is also obvious: Mr. Raza pleaded guilty to fraud-related offences and was to receive a significant sentence. I note as well that although no firearm was used, the scheme involved vulnerable victims.
[57] This is not a close call. Mr. Raza does not enjoy the presumption of innocence. He fled under dubious and somewhat mysterious circumstances. He used a sophisticated scheme that included liquidating his assets and abandoning his wife and stepdaughter. He represents a clear and present risk of flight. The public would surely lose confidence in the administration of justice if Mr. Raza was released – even accounting for the Covid 19 pandemic.
DISPOSITION
[58] The application is dismissed.
Released: April 20, 2020
COURT FILE NO.: CR-20-90000061-00MO DATE: 20200420 ONTARIO SUPERIOR COURT OF JUSTICE THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Respondent – and – SYED ALI RAZA Applicant/Person Sought REASONS FOR JUDGMENT ON EXTRADITION BAIL APPLICATION R.F. Goldstein J. Released: April 20, 2020