COURT FILE NO.: CNJ-10090 DATE: 2021/01/04 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Attorney General of Canada on behalf of the Czech Republic v. Rudolf Karicka
BEFORE: Mr. Justice D.A. Broad
COUNSEL: Kandia Aird, Counsel for the Respondent, Attorney General of Canada Christen Cole, Counsel for the Applicant, Rudolf Karicka
HEARD: December 22, 2020
Endorsement
1The Czech Republic seeks the applicant’s extradition to enforce his 2-year sentence imposed following a conviction in an in-absentia hearing, for break and enter and theft. The Attorney General states that, based upon the evidence on hand, the applicant fled the jurisdiction of the Czech courts in the midst of criminal proceedings against him.
2The applicant was arrested on October 5, 2020 and at the time of the present hearing was detained. He applied for judicial interim release pursuant to s. 18 of the Extradition Act, S.C. 1999, c. 18 (the Act”).
3The in-absentia conviction and sentence relate to three incidents of a break and enter and theft in Prague on January 1, 2007, January 18, 2007 and April 20, 2007 respectively. The first incident involved a forced entry into an apartment by the applicant and others where they stole cash, mobile phones, computers, watch, leather jackets, jewelry and other items. The second incident involved a forced entry into a retail establishment by the applicant and others where they stole leather jackets and leather pants. The third incident involved a forced entry by the applicant into a retail shop where he stole computers and accessories.
4The applicant was given notice of the criminal proceedings against him in the Czech Republic on July 1, 2007. The trial took place on July 25, 2012 and the court ruled the same day, convicting the applicant of the three break and enters and thefts. There is no indication that any appeals were filed but the Czech legal statement sets out entitlement to a new trial upon the applicant’s return to the Czech Republic.
5The applicant arrived in Canada on December 26, 2008 with his wife and 2 older children now aged 17 and 19, all of whom claimed refugee status on the basis of their Roma ethnicity. On May 25, 2011 the applicant and his family were determined to be Convention refugees or persons in need of protection. On September 20, 2016 the Minister of Public Safety and Emergency preparedness made an application to the Immigration and Refugee Board to vacate the decision granting the applicant and his family refugee status. On September 19, 2019 the Immigration and Refugee Board allowed the application and nullified the previous decision granting refugee status. On October 8, 2019 the applicant’s counsel filed an Application for Leave and for Judicial Review with the Federal Court. This application has not been disposed of to date.
6The applicant voluntarily surrendered his Czech passport to Canadian immigration authorities, and he is not entitled to a Canadian passport.
7The applicant proposes that he be released to a single surety, his maternal aunt, Marcela Pestova, and that his release be subject to the following conditions:
(a) that he reside with his surety; (b) that he remain within his surety’s residence 24 hours a day, 7 days a week unless (i) attending pre-scheduled medical appointments; (ii) in the direct and continuous presence of his surety; (iii) for medical emergencies involving the applicant, a member of his immediate family or the surety. (c) that he not possess or apply for a passport.
8The Attorney General opposes the application for judicial interim release on each of the primary, secondary ground and tertiary grounds.
9In support of his application, the applicant filed an affidavit deposing, inter alia, to the following:
(a) since his arrival in Canada with his wife and 2 older children, he and his wife have had 4 more children aged 11, 9, 6 and 2 years old; (b) he has extended family in Canada, with whom he is very close, comprising an uncle and his wife and children, and an aunt and her husband and children; (c) his health is not good as he is in pain from a 2015 car accident and does not sleep well. He is not receiving adequate care in jail. He suffers from diabetes, with complications, has a heart condition as well as chronic obstructive pulmonary disease (COPD) for which he used a sleep apnea mask prior to his arrest. He has been unable to use the sleep apnea mask in jail as there is no electrical outlet in his cell; (d) he is concerned about the spread of COVID-19 within the jail setting. Because he has COPD and diabetes, he believes that he is at higher risk for contracting the virus; (e) if he is released from jail, he plans to make appointments to see his doctors as soon as possible. He will also follow public health guidelines to prevent COVID-19 and stay at home as much as possible; (f) Ms. Pestova has previously been his surety in respect of criminal charges involving his wife. He lived with Ms. Pestova and her husband while his she was his surety and he followed the conditions.
10The applicant also filed an affidavit of proposed surety Marcela Pestova who deposed, inter alia, to the following:
(a) She is 54 years old, has no criminal record or outstanding charges, and has been a permanent resident of Canada since 2010. She first arrived in Canada as a refugee in 2008; (b) she resides at Hamilton, Ontario and has lived in her current residence since she arrived in Canada in 2008; (c) she has a positive relationship with the applicant. She trusts and respects the applicant and knows that the applicant trusts and respects her. She is confident that he will listen to her as his surety and knows that she will not hesitate to call the police if he breaks any of the conditions set by the court; (d) she has been a surety for the applicant previously and knows her responsibilities as a surety to call the police if the applicant were to breach a condition of his release; (e) she has made it clear to the applicant that she is prepared to return him to jail if he does not obey the conditions or if she no longer wishes to be a surety; (f) she is prepared to pay $2,000, without deposit, in support of the applicant’s release; (g) she supports herself and her family with the Ontario Disability Support Program (ODSP) as she suffers from depression and anxiety which prevent her from working. Her medical conditions will not prevent her from properly supervising or enforcing the bail if the applicant is released; (h) if released, the applicant would live with her and her husband and they have space for him. She would accompany the applicant to visit his family at their home in Cambridge.
11The applicant and Ms. Pestova were each cross-examined on their respective affidavits by Crown counsel.
12At the conclusion of submissions, I ordered, for reasons to follow, that the applicant be released pending his extradition hearing, with Ms. Pestova as his surety with a pledge, without deposit, in the sum of $2,000, subject to the conditions set forth below. The following are those reasons.
Statutory Framework
13S. 19 of the Act provides that the Criminal Code provisions respecting judicial interim release (Part XVI) apply with any modifications that the circumstances require in the extradition context.
14S. 515(6)(b) of the Criminal Code provides that, in the absence of the applicability of a provision of the Criminal Code reversing the onus, the Attorney General must satisfy the court that the applicant’s detention is justified on at least one of the three grounds set forth at subsection 515(10) of the Criminal Code, namely:
(a) the primary ground - where the detention is necessary to ensure attendance in court; (b) the secondary ground - where the detention is necessary for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence; and (c) the tertiary ground - where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the offence, the circumstances surrounding its commission, and the potential for a lengthy term of imprisonment.
15Section 515(6) reverses the onus in some situations including, pursuant to paragraph (b), where the accused is “not ordinarily resident in Canada.”
Position of the Applicant
16The applicant submits that he is ordinarily resident in Canada and accordingly the Attorney General bears the onus of showing that his continued detention is justified on one of the three grounds. He has resided in Canada for approximately 12 years, and although his refugee status was revoked by the Immigration and Refugee Board, he has the legal right to remain in Canada pending the final disposition of his Application for Judicial Review of that decision to the Federal Court.
17In any event, the applicant submits that, if he is found not to be ordinarily resident in Canada, he has nevertheless satisfied the onus of showing that his continued detention is not justified.
18Ms. Cole for the applicant submits that the primary ground is the central focus on an application for bail in the extradition context. Ms. Cole submits that, despite the need in extradition proceedings to approach the primary ground with increased caution, the evidence shows that the applicant is not a flight risk and his release plan adequately mitigates any primary ground concerns.
19Ms. Cole submits that the applicant has an established life in Canada, having resided for almost 12 years in this country. He is actively engaged in the immigration system in Canada and has an Application for Leave and Judicial Review pending in the Federal Court. His wife and two older sons are also subject to those proceedings. The applicant has 4 younger children, one of whom is in ill health, awaiting an organ transplant.
20The applicant also has extended family in Canada, all of whom reside in Ontario, including his aunt Ms. Pestova who has presented herself as a proposed surety.
21Moreover, Ms. Cole points out that the applicant never made any effort to hide from authorities. He receives ODSP benefits and uses the public health care system.
22On cross-examination, the applicant testified that, when the charges that are subject of the extradition proceedings came to his attention in 2016, he entered into extended dialogue with Czech Republic court personnel in Prague to obtain particulars of the situation. He also surrendered his passport to Immigration Canada where it remains. The only citizenship which the applicant holds is Czech and he is not entitled to a Canadian passport. He also suffers from serious medical issues for which he requires care, constituting a further barrier to his fleeing.
23Moreover, Ms. Cole submits that the evidence established that Ms. Pestova is a suitable surety.
24With respect of the secondary ground, Ms. Cole submits that there is no substantial risk that the applicant will re-offend while on release. He has lived in Canada for almost 12 years and has no criminal record in Canada. There is therefore a significant gap in time since the last entry on his criminal record on the Czech Republic in 2008 to the present. Ms. Cole noted that the applicant has been subject to two peace bonds in Canada, one that expired in November 2020 and one due to expire in June 2021, with no allegations of any breaches. This indicates that the applicant takes court orders seriously and obeys them.
25With regard to the tertiary ground, Ms. Cole submits that a reasonable member of the public, familiar with the applicable principles, would not be offended by the applicant’s release on the terms proposed.
26With respect to the first factor under the tertiary ground, Ms. Cole acknowledges that the strength of the Crown’s case relates to the strength of the case for committal rather than the strength of the case for underlying offence. However, she disagrees that all that is required is a prima facie case and confirmation of the applicant’s identity. She submits that the court also has Charter jurisdiction to consider humanitarian factors including the applicant’s position that as a Roma person he faces discrimination and verbal and physical violence in his home country.
27With respect to the gravity of the offence, Ms. Cole submits that nothing can be taken from the fact that a two-year sentence was imposed on the applicant in-absentia as there is no evidence as to where such a sentence lies on the spectrum under the Czech Republic justice system.
28With respect to the circumstances surrounding the commission of the offences, Ms. Cole submits that it is not possible to infer that the offences were particularly organized, there is no evidence of any organized criminal organization being involved, and no evidence of the use of any firearms or other weapons.
29With respect to the last factor, namely whether the applicant is liable, upon conviction, for a potentially lengthy term of imprisonment, Ms. Cole notes that if he is returned to the Czech Republic the applicant would be entitled to a form of re-trial. He did serve some time in pre-trial custody from July to December 2007 as well as time following his arrest on the extradition warrant. With credit for pre-sentence custody, there is the spectre of the applicant being returned to the Czech Republic with the entire time of his sentence having been served.
Position of the Attorney General
30With respect to the primary ground, Ms. Aird for the Attorney General submits that the applicant appears to have no assets in Canada, no fixed address, and no plan to support himself in which the Court can have confidence. It says that the applicant has not provided the court with any plan as to where and in what circumstances he might live and with no concrete employment prospects. Moreover, it says that the applicant has demonstrated that he is a flight risk as he fled the Czech Republic at a time when he was facing criminal proceedings.
31With regard to the secondary ground, Ms. Aird asserts that the evidence demonstrates that the applicant has engaged in break and enters and thefts for number of years and was previously convicted of theft in 2004 and 2007 in the Czech Republic. He currently has one active peace bond in Canada, being a family violence and firearms peace bond expiring in July 2021 held by the Hamilton police. She says that it cannot be said that the applicant is unlikely to reoffend.
32With respect to the tertiary ground, Ms. Aird submits that there is an overwhelming case for committal of the applicant for extradition. The only issue on committal, if it is contested, is whether the conviction in the Czech Republic was in respect of conduct that corresponds to the offence set out in the Authority to Proceed and that the applicant is the person who was convicted.
33The Attorney General also submits that the applicant’s offences are serious. The request for extradition describes the organized coordination of three break and enters in Prague, Czech Republic. The applicant committed a pecuniary crime that victimized innocent people.
34The Attorney General submits that confidence in the administration of justice of a reasonable person would be undermined if they were to learn of the applicant’s release into the community.
35With respect to the current COVID-19 pandemic, the Attorney General points out that the applicant does not allege that there has been a significant outbreak at Maplehurst Correctional Complex. There is no evidence of a higher prevalence of the virus in the jail population than among the general public. Maplehurst has taken significant steps to safeguard the health of its inmates.
Analysis
Onus
36With respect to the question of whether the onus rests on the applicant, it is noted that the phrase “ordinarily resident in Canada” is not defined in the Criminal Code.
37In the case of R. v. Oladipo, 2004 ONSC 46658, [2004] O.J. No. 5028 (S.C.J.) Wein, J. stated as follows at para. 19:
Clearly, refugee claimants, pending the determination of their status, are lawfully in the country, even if their status may be said to be tenuous. Both Crown and defence acknowledged at the review hearing before this Court that the determination of whether or not a person is ordinarily resident in Canada is a question of fact, concerning which the status as a refugee claimant is but one factor bearing on the court's determination. That is a correct statement of principle.
38She added the following observations at para. 21:
A principled approach to the definition of "ordinarily resident in Canada" in the context of refugee claimants should logically lead the court to a careful analysis of the situation of the individual who is being detained. A principled approach, considering Charter values including the presumption of innocence, should not lead a court to give any undue weight to the status of a refugee claimant as compared, say, to a landed immigrant or Canadian citizen even though refugee status is by definition tenuous. It was not argued that the indication on the work permit that the permit did not confer temporary resident status had any bearing on the issue. Absent special factors, such as a imminent appeal hearing where the appellant has been advised success will be unlikely, or the complete lack of any surrounding indicia of stability, a refugee claimant ought not to be automatically saddled with the reverse onus simply by reason of his status.
39Taking a principled and contextual approach, I am not satisfied that the applicant is not ordinarily resident in Canada so as to reverse the onus for the purpose of his application for bail. He has resided uninterrupted in Canada with his family since 2008. He and his wife and two older children had earlier been granted refugee status. The revocation of that status is subject to a pending application for leave and judicial review in the Federal Court.
40In any event, even if I am wrong in this determination, the point is immaterial as, even if it is a reverse-onus situation, the applicant has satisfied the onus on him of showing that his continued detention is not justified based upon the proposed release conditions.
Primary Ground
41In connection with the primary ground, it has been emphasized in the jurisprudence that because of Canada’s international treaty obligations, the risk of absconding must be examined even more carefully in extradition cases than it might be in domestic proceedings (see United States of America v. Ugoh, 2011 ONSC 1810 (S.C.J.) and the cases therein referred to). Moreover, risk of flight is not limited to concerns about risk of flight outside of Canada.
42It is noteworthy that when the proceedings in the Czech Republic came to the applicant’s attention in 2016 he made no attempt to flee or to hide from authorities. To the contrary, he took active steps to engage with court authorities in the Czech Republic and voluntarily surrendered his Czech passport to Immigration Canada. He is closely tied to his immediate and extended family in Canada and has pending proceedings in the Federal Court respecting the refugee status of not only himself but his wife and two older children. I am satisfied that the proposed supervision plan, involving 24/7 supervision by his surety, combined with his past conduct of not fleeing and cooperating with immigration authorities and of initiating legal proceedings seeking judicial review of the revocation of his refugee status is sufficient evidence to warrant judicial interim release in consideration of the primary ground.
Secondary Ground
43With respect to the secondary ground, it is noteworthy that the applicant has no criminal record in Canada. Under the proposed plan of release the applicant will be under the constant supervision of his surety. Although Ms. Pestova proposes to pledge only $2,000, this represents a significant amount for her as it is virtually her entire monthly ODSP income upon which she and her husband rely. It is evident that she has no savings.
44Although Ms. Aird pointed to the applicant’s criminal record in the Czech Republic as supporting a risk that the applicant would re-offend if released, I understood her to acknowledge in submissions that the risk is not “substantial” as required under the secondary ground.
45I am satisfied that there is sufficient evidence to warrant the applicant’s release on the basis of the proposed plan on the secondary ground.
Tertiary Ground
46With respect to the tertiary ground, I accept that in relation to the first enumerated factor, there is a strong Crown case for the applicant’s committal for extradition.
47With respect to the gravity of the underlying offences and the circumstances of their commission, the applicant was convicted in-absentia to three break and enters, one to a residence and two to retail establishments. At least two of the incidents involved participation and apparent planning with others. The offences are serious, however, there appears to be no indication of the use of weapons and the offences were property crimes which did not involve any assaultive behaviour or from which physical harm to individuals would be expected to result.
48With respect to the potential for a lengthy term of imprisonment, the applicant’s counsel has pointed out, as noted above, that with credit for pre-sentence custody, the applicant may have already served all, or a substantial part, of the two-year sentence imposed.
49Regardless of the strength of the four factors specifically enumerated in s. 515(10)(c) of the Code, the Supreme Court of Canada in R. v. St.-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 emphasised that all of the relevant circumstances must be balanced on the question of whether a reasonable member of the community would be satisfied that denial of release is necessary to maintain confidence in the administration of justice (see paras. 67-71).
50Moreover, Wagner, J. (as he then was) noted at para. 70 that it is important not to overlook the fact that release of accused persons is the cardinal rule and detention the exception.
51Copeland, J. in the case of R. v. J.S., 2020 ONSC 1710 (S.C.J.), confirmed at para. 13 the direction in St.-Cloud that the proposed plan of release is an important consideration, stating as follows:
The tertiary ground requires a consideration of all of the circumstances and is not limited to the four enumerated St-Cloud factors. An important consideration is the proposed plan of release. A reasonable and informed member of the community would not have concerns for the administration of justice if proposed release terms are sufficient to address the tertiary ground concerns.
52The applicant’s plan of release calls for effective house arrest, with very limited exceptions, with 24/7 supervision, representing among the most onerous type of bail. In my view the proposed release terms are sufficient to address the tertiary ground concerns.
53At para. 71 of St.-Cloud Wagner, J. included among the non-exhaustive list of factors that the court may consider under the tertiary ground, the personal circumstances of the accused. In the case at bar the evidence indicates that the applicant suffers from a number of health-related issues, including persistent pain from the effects of a 2015 car accident, diabetes, a heart condition and COPD which are actually or potentially exacerbated by his incarceration.
54I am satisfied that, in considering and balancing of all of the relevant circumstances, the continued detention of the applicant is not necessary in order to maintain confidence in the administration of justice.
Disposition
55At the conclusion of the hearing I made an Endorsement that the applicant be granted judicial interim release subject to following conditions:
(a) that he reside with his surety Marcela Pestova; (b) that his surety Marcela Pestova pledge, without deposit, the sum of $2,000; (c) that he remain in his surety’s residence 24 hours a day, 7 days a week, unless (i) attending pre-scheduled medical appointments; (ii) while in the direct and continuous presence of his surety; (iii) for medical emergencies involving him, a member of his immediate family, or his surety. (d) that he remain in the Province of Ontario; (e) that he forthwith advise Detective Constable Stephen Douglas of the Toronto Fugitive Squad of any change of address.
D.A. Broad, J.
Date: January 4, 2021