Ontario Superior Court of Justice

Court File No.: CR-25-90000055-00MO
Date: 2025-07-18

BETWEEN:
His Majesty the King
– and –
Matias Domingo Sanchez Nanuclef

Appearances:
M. Nati and A. Rice, for the Attorney General of Canada
A. Akinyemi, for Mr. Sanchez-Nanuclef

Heard: 2 July 2025
Judge: S.A.Q. Akhtar

Factual Background and Overview

Background Facts

1On August 31, 2024, the Ben Bridge/Rolex jewellery store in a San Diego, California mall was broken into, and approximately $15 million worth of merchandise was stolen.

2Two days earlier, on August 29, 2024, a group of seven individuals were seen acting in a manner akin to “scoping out” the jewellery store and the layout of the mall. The seven individuals broke up into different smaller groups walking around the mall.

3On August 31, four men dressed as construction workers were recorded by surveillance cameras walking in the mall towards the Ben Bridge/Rolex store. The men appeared as if they were trying to avoid having their faces seen on camera. The men walked towards the jewellery store and then left. The cameras then recorded them approximately three hours later making repeated trips from the jewellery store to a nearby van carrying bags that appeared full. They then departed the mall in that same van.

4When police arrived on scene, they found that a hole had been cut in the roof of the building in the jewellery store’s front showroom. This was the point of entry for the burglars. Paper had been taped onto the store’s interior windows to prevent anyone from seeing inside the store. The security systems had all been destroyed or removed. Improvised blow torches had been used to burn through the wall of the safes to access their contents. As described, approximately $15 million worth of jewellery and watches were stolen.

5One of the individuals captured by surveillance video in the mall near the jewellery store shortly before the burglary is alleged to be Mr. Sanchez-Nanuclef. The police obtained a copy of Mr. Sanchez-Nanuclef’s Chilean national identification and matched it to the person captured in the mall security cameras. Mr. Sanchez-Nanuclef was accompanied by another individual whom the police later identified as Francisco Alaejandro Navaratte-Aravena. Both men were seen looking into the Ben Bridge/Rolex store before moving on to the next store. The two men were seen walking through a mall delivery corridor where the Ben Bridge/Rolex employee entrance is located.

6Other members of the group were identified and arrested. Police found stolen items from the store in their possession. Police also found clothing similar to those worn by the group who were posing as construction workers on August 31, 2024. These items were in the possession of one of the members of the group captured on the surveillance video scoping out the mall.

7Mr. Navaratte-Aravena’s DNA was found at the scene of the crime on a water bottle. He was also identified from the video recording through a comparison with his image on his Chilean identification card.

8On February 18, 2025, US law enforcement officers were informed that both Mr. Navarette-Aravena and Mr. Sanchez-Nanuclef had been arrested in Canada. Three of the other people alleged to have been involved have also been arrested and are currently in custody in San Diego County in California.

9Mr. Sanchez-Nanuclef faces extradition proceedings where the US seeks to return him to Los Angeles to face trial for the burglary committed at the Ben Bridge/Rolex store.

10Mr. Sanchez-Nanuclef is currently in detention awaiting his extradition hearing. He seeks to be released on bail pending that hearing date. The Attorney General of Canada (the “AG”) seeks his continued detention arguing that he is a flight risk and that there is a substantial likelihood of his committing more offences if released on bail. They also argue that Mr. Sanchez-Nanuclef’s detention is necessary to maintain confidence in the administration of justice.

Who Bears the Onus?

11One of the first questions to be decided is who bears the onus to show whether detention is justified or not.

12Mr. Sanchez-Nanuclef is entitled to seek release before this court pursuant to s. 18 of the Extradition Act, SC 1999, c 18. Section 19 of the Act incorporates provisions of Part XVI of the Criminal Code, RSC 1985, c C-46 to apply to anyone arrested under s. 13 of the Act. Accordingly, the bail provisions set out in s. 515(10) of the Code apply.

13Section 515(6)(b) of the Criminal Code states that:

(6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged
(b) with an indictable offence, other than an offence listed in section 469 and is not ordinarily resident in Canada,

14This section places the burden on the accused to show why their detention is not justified if they are found to be “not ordinarily resident in Canada”.

15There is no dispute that when a person is unlawfully in Canada, they fall within the “not ordinarily resident in Canada” definition: R. v. Jonas, 25 C.R. (3d) 325 (Ont. H.C.J.).

16The AG points out that Mr. Sanchez-Nanuclef arrived in Canada sometime in October 2024 and applied for refugee status. It accordingly argues that the onus rests on the applicant because he is not ordinarily resident in Canada.

17Mr. Sanchez-Nanuclef, on the other hand, argues that applying for refugee status does not automatically mean that he is not ordinarily resident in Canada.

18The AG relies on R. v. Kirk, [2001] O.J. No. 5014 (S.C.) where Hill J. found that Mr. Kirk was not ordinarily resident in Canada because he was an American citizen, owned property in the US, and even though he claimed he had a Canadian business there was no evidence of that fact. Hill J. also found there was no evidence of any Canadian bank account held by Mr. Kirk. Finally, although Mr. Kirk said that he intended to settle down with a Canadian woman, there was conflicting evidence about whether that was true. However, Hill J. did remark, at para. 49, that, in his view, the authorities did not “suggest that refugee claimants are to be treated in the same way as illegal entrants in violation of a relevant immigration statute”.

19The Kirk decision was cited in R. v. Oladipo, 191 C.C.C. (3d) 237 (S.C.), a case relied upon by Mr. Sanchez-Nanuclef. There, Wein J. also expressed the view that refugee claimants are lawfully in Canada and therefore do not automatically fall within s. 515(6)(b) of the Code. In Wein J.’s view, when an accused had applied for refugee status, a court had to conduct a more careful and nuanced analysis of their situation. However, the mere fact that they were a refugee should not be given undue weight.

20In light of this caselaw, I turn to scrutinise Mr. Sanchez-Nanuclef’s residency status in Canada.

21Mr. Sanchez-Nanuclef testified that he first arrived in Canada from Chile in 2022 but then entered the United States illegally in March 2023, and ended up in Los Angeles. Mr. Sanchez-Nanuclef returned to Canada in November 2024—shortly after police in Los Angeles began executing search warrants and arresting some of the people who had participated in the Ben Bridge/Rolex Store burglary. Mr. Sanchez-Nanuclef entered Canada illegally by walking across the US-Canada border and shortly thereafter applied for refugee status.

22He was, some time later, arrested by the Canadian Border Services Agency as being a danger to the public and has been in custody awaiting extradition.

23During the time prior to his arrest, Mr. Sanchez-Nanuclef was found in a stolen car and pleaded guilty to possession of stolen property for which he received a suspended sentence and 12 months probation.

24I find that Mr. Sanchez-Nanuclef’s movements show him to be a transitory traveller using Canada as a way of entering the United States. It is noteworthy that he did not apply for refugee status when first arriving in 2022. He left for the US in 2023 and appears to have returned very shortly after the Los Angeles police began executing search warrants on various properties and making arrests of others who are alleged to have been involved in the burglary. It would not be unduly cynical to find that he returned to Canada to flee the law enforcement authorities in the US.

25There is no evidence of any property or assets in this country or any close family ties.

26For these reasons, I find that the totality of the evidence shows that Mr. Sanchez-Nanuclef is not ordinarily resident in Canada and that the burden falls upon him to show why his detention is not justified.

Should Mr. Sanchez-Nanuclef be Released?

27As noted, the bail provisions set out in s. 515(10) of the Code apply to this case and Mr. Sanchez-Nanuclef’s release must be governed by the principles set out in that subsection.

The Primary Ground

28Turning to the primary ground, I must consider whether detention is necessary to ensure Mr. Sanchez-Nanuclef’s attendance in court.

29There can be no doubt that Mr. Sanchez-Nanuclef has no difficulties in moving from location to location without regard for the law. His history crossing into the US from Canada and then re-entering Canada, both without legal authority, illustrates this point.

30Mr. Sanchez-Nanuclef also has an incentive to further flee Canada to avoid being returned to the United States and facing a potentially lengthy sentence if convicted of his crimes.

31There are clearly serious and significant concerns in relation to the primary ground.

The Secondary Ground

32When assessing the secondary ground, an accused's release is only denied when there is a substantial likelihood of committing further offences or interfering with the administration of justice and when it is necessary for the public safety: R. v. Morales, [1992] 3 S.C.R. 711, at p. 737; R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673, at paras. 67-68.

33Here, Mr. Sanchez-Nanuclef continued to engage in criminal activity when he returned to Canada and after he had applied for refugee status. As described, in February 2025, he was charged and pleaded guilty to possession of stolen property, a motor vehicle. He was arrested in the passenger seat along with two other occupants of the car.

34What is even more concerning is that Mr. Sanchez-Nanuclef was willing to commit this offence knowing that it would negatively impact his refugee claim.

35This incident, along with the US allegations, lead me to believe that there is a substantial likelihood that if released, Mr. Sanchez-Nanuclef would commit further offences that would endanger public safety.

The Proposed Plan of Release

36To allay these concerns, Mr. Sanchez-Nanuclef has advanced two sureties and a plan that he says would relieve the primary and secondary ground concerns.

37The sureties are Ms. Doris Lugo and Mr. Rolando Solano. Ms. Lugo knew Mr. Sanchez-Nanuclef through her ex-partner, who is Mr. Sanchez-Nanuclef’s mother’s second cousin. She saw Mr. Sanchez-Nanuclef in December 2024 but the visit was a quick one, approximately two hours. Prior to that meeting she had only seen Mr. Sanchez-Nanuclef when he and his family travelled to the Dominican Republic and when Mr. Sanchez-Nanuclef was 15 or 16 years old. He is now 26 years old.

38Ms. Lugo has resided in Canada for eight years as a permanent resident and has a 22-year-old daughter who lives with her.

39Mr. Sanchez-Nanuclef’s plan included Mr. Solano moving in with Ms. Lugo to assist in supervising him. Mr. Solano also knew Mr. Sanchez-Nanuclef because Mr. Sanchez-Nanuclef’s father used to visit the Dominican Republic. Mr. Sanchez-Nanuclef’s family stayed with Mr. Solano for approximately five months in 2022.

40There were some troubling inconsistencies in both sureties’ evidence.

41First, Ms. Lugo, in her affidavit, appeared to indicate that she was Mr. Sanchez-Nanuclef’s maternal aunt and then indicated that Mr. Sanchez-Nanuclef’s mother was her second cousin. This was inaccurate as she explained in her testimony. Ms. Lugo also asserted that Mr. Sanchez-Nanuclef “respects and listens to me and he has assured me that he would comply with all my directives”. However, in cross-examination, it was clear that Ms. Lugo had not really spoken directly to Mr. Sanchez-Nanuclef but had been talking to his mother.

42Ms. Lugo appears to be a well-intentioned woman who is friends with Mr. Sanchez-Nanuclef’s mother but also appears to have had little to do with Mr. Sanchez-Nanuclef in the last 10 years or so. Her main contact with Mr. Sanchez-Nanuclef’s family has been through his mother and it is evident that there is very little in terms of a relationship between Ms. Lugo and Mr. Sanchez-Nanuclef. She was not even fully aware of the criminal offence committed by Mr. Sanchez-Nanuclef in February 2025. Nor did she know that he had applied for refugee status.

43I find that Ms. Lugo, despite her best intentions, would not be able to exert any form of control or supervision over Mr. Sanchez-Nanuclef—something essential in this case.

44I take the same view of Mr. Solano. His evidence conflicted with Ms. Lugo in relation to his moving into her property at Vena Way. He said that he would be subletting one of the rooms from her for $650 whereas she did not reference any rental agreement. Mr. Solano said that he had known Ms. Lugo for 12 years even though his affidavit indicated that he had known her for 7 years. Listening to him testify, it is unclear how close their relationship could be.

45Mr. Solano is an older man and on painkiller medication. Even though he indicated in identical wording to that of Ms. Lugo that Mr. Sanchez-Nanuclef respected him and would listen to him, he was also unaware of Mr. Sanchez-Nanuclef’s application as a refugee. I ask rhetorically: how close can the relationship between Mr. Solano and Mr. Sanchez-Nanuclef be when Mr. Sanchez-Nanuclef had not even told him that he was applying for refugee status?

Electronic Monitoring

46Both sureties, in their affidavits, indicated that they had been in contact with Recovery Science Corporation to request their assistance in providing an electronic monitoring bracelet. Both sureties, in almost identical language, stated that GPS monitoring would provide continuous oversight of Mr. Sanchez-Nanuclef and increase certainty that the police would detect any violation of release conditions and act immediately.

47Again, somewhat troublingly, there appeared to be an inconsistency between this affidavit and their testimony. When cross-examined, both Ms. Lugo and Mr. Solano confirmed that they had not spoken to Recovery Science.

48In any event, electronic monitoring is only useful when accompanied with a strong surety release plan. Electronic monitoring has its uses. However, the courts have recognised its limitations in the context of bail: see, for example, R. v. Palijan, [2012] O.J. No. 6549 (S.C.); R. v. Sotomayor, 2014 ONSC 500, at paras. 40-41; R. v. Ma, 2015 ONSC 7709, at para. 56.

49Electronic monitoring is a tool that may report non-compliance of some bail conditions but it certainly does not prevent reoffending. It might place an accused in a particular location but cannot identify what they are doing at that time. In other words, although electronic monitoring might be able to disclose that Mr. Sanchez-Nanuclef had left his residence, it would not be able to report an offence that was being committed by Mr. Sanchez-Nanuclef, much less prevent it.

50Moreover, there is nothing to prevent Mr. Sanchez-Nanuclef from simply cutting off the electronic bracelet and fleeing the jurisdiction well before the authorities could attend the residence to prevent his escape.

51I repeat: as a supervisory tool, electronic monitoring is really only useful when there is a strong supervisory set of sureties. For the reasons I have already mentioned, neither Ms. Lugo nor Mr. Solano is capable of providing the strong oversight required in Mr. Sanchez-Nanuclef’s case.

52Accordingly, I find Mr. Sanchez-Nanuclef has failed to satisfy me that he should be released under the primary and secondary grounds.

The Tertiary Ground

53Section 515(10)(c) of the Code sets out the four statutory factors that must be evaluated when determining whether a detention is necessary to maintain confidence in the administration of justice. They are as follows:

(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.

54In R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, the Supreme Court of Canada explained that the tertiary ground is not an appendage to the secondary ground but had to be considered in its own right. The question to be asked is whether a reasonable member of the community would be satisfied that detention is necessary to maintain confidence in the administration of justice.

55The four factors in s. 515(10)(c) are not exhaustive. Other factors may also play a part in deciding whether the tertiary ground requires detention. It is also worth remembering that the four factors must be analysed together and not separately: R. v. E.W.M., 223 C.C.C. (3d) 407 (Ont. C.A.), at para. 31. However, where all four factors have “maximum force”, detention is “entirely to be expected”: E.W.M., at para. 32.

56In extradition cases, the tertiary ground must take into account Canada’s international obligations. In United States of America v. Pannell, [2004] O.J. No 5715 (S.C.), aff’d 2007 ONCA 786, 227 C.C.C. (3d) 336, the court observed at para. 49:

Superimposed over all of those considerations in an extradition case is Canada's obligations to its international treaty partners. This case is not restricted to matters affecting only the administration of justice in this country. It also involves the ability of another country to administer its system of justice. Canada must be seen as fulfilling its obligations to other countries with which it has treaties if it is to expect that those countries will fulfil their obligations to us.

57With respect to the first ground, Miller J.A., in United States v. Baratov, 2017 ONCA 481, at para. 7, remarked:

… The limited role of the court in assessing the strength of the case in an extradition proceeding (and by extension a bail application pending an extradition proceeding) was well articulated by Thorburn J. in Mandall v. United States of America, 2010 ONSC 1202, para. 50:

The role of this Court in an extradition is a limited one and does not involve weighing the merits of the evidence against the person sought and determining whether his conviction in the foreign jurisdiction is likely. In determining the strength of the case against Mr. Mandall in this jurisdiction, the question is not whether he is likely to be convicted in the United States, but rather, whether this Court is likely to order his extradition.

58In this case, Mr. Sanchez-Nanuclef has been captured on video seemingly scoping out the Ben Bridge/Rolex store that was ultimately broken into; he was in the company of other accused who were later found in possession of some of the stolen property and the clothing worn around the time of the offence. As such, “there is some evidence on which a properly instructed jury could convict”: Baratov, at para. 50.

59The offence is clearly a serious one which would, on conviction, attract a lengthy sentence.

60Moreover, Mr. Sanchez-Nanuclef left the United States shortly after the United States authorities began to execute search warrants and discover incriminating evidence. His claim for refugee status, not made when he arrived in 2022, would appear to the reasonable observer to be for the purpose of evading prosecution in the US. Finally, shortly after arriving in Canada and making his refugee claim, Mr. Sanchez-Nanuclef committed an offence to which he pleaded guilty and received a suspended sentence.

61In my view, a reasonable member of the community would be satisfied that detention is necessary to maintain confidence in the administration of justice.

62Mr. Sanchez-Nanuclef is therefore detained on the primary, secondary, and tertiary grounds contained in the Criminal Code.

S.A.Q. Akhtar
Released: 18 July 2025

COURT FILE NO.: CR-25-90000055-00MO
DATE: 2025-08-18
ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:
His Majesty the King
– and –
Matias Domingo Sanchez Nanuclef

REASONS FOR JUDGMENT
S.A.Q. Akhtar