2016 QCCA 890, 2016 QCCA 890

Stewart c. Canada (Attorney General) (United States of America) 2016 QCCA 890 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006150-161 (500-36-007874-152) MINUTES OF THE HEARING DATE: May 19, 2016 THE HONOURABLE YVES-MARIE MORISETTE , J.A. APPLICANT COUNSEL COLIN STEWART Mtre PIERRE L'ECUYER (Pierre L'Ecuyer, avocat) RESPONDENT COUNSEL THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Me LAURENT BRISEBOIS (Ministère de la Justice Canada) DESCRIPTION: MOTION TO BE RELEASED FROM CUSTODY PENDING THE DETERMINATION OF THE APPEAL (s. 679 Cr. C .) Clerk: Shirley Thomas Courtroom: RC-18

HEARING 9:30 Commencement of the hearing. Identification of counsel. 9: 31 By the judge: Judgment – see page 3. 9: 32 Conclusion of the hearing. SHIRLEY THOMAS Clerk BY THE JUDGE JUDGMENT [ 1 ] The American government seeks to have the applicant Colin Stewart extradited to the United States of America and to have him face prosecution in the State of New York for a serious offence of drug trafficking. The extradition process began in December of 2015.

On April 12, 2016, Justice Buffoni of the Superior Court issued an order of committal naming the applicant and ordering that he be incarcerated until the Minister of Justice’s decision.

On May 10, the applicant, through his counsel, wrote to the Minister of Justice and invoked various ground on the basis of which he asked not to be extradited. [ 2 ] Meanwhile, on May 5, the applicant served on the Attorney General a motion for his release from prison, based on s. 20 of the Extradition Act [1] (EA) and ss. 515 and 679 of the Criminal Code [2] (CrC) . [ 3 ] The applicant’s motion is governed, more precisely, by ss. 20 (

b) E.A. and 679(3) C.cr . , which allow a judge of this Court to release an applicant from custody pending the determination of the Minister's decision, if the following conditions are met: [3] 1° the applicant's submissions to the Minister are not frivolous; 2° the applicant will surrender into custody in accordance with the terms of an order; and 3° the applicant's detention is not necessary in the public interest.

This last condition, which is centered on the safety of the public and the public trust in the administration of justice, [4] requires that various factors be taken into account and pondered, such as: the apparent strength of the prosecution’s case and the seriousness of the petitioner's submission; the nature and gravity of the offense and the circumstances allegedly surrounding its commission; the possibility that the offense may lead to a lengthy term of imprisonment; the presumption of innocence (which underlies the charges pressed upon the petitioner in the U.S., upon which the extradition proceedings have been engaged); the personal surroundings of the petitioner (family, friends and network, employment situation), if evidence thereof is available; the past criminal record of the petitioner or the commission of other, related or unrelated offenses; the fact that the petitioner was – or was not – on bail during the extradition proceedings before the Superior Court, the existence and stringency of possible release conditions; etc. [ 4 ] The first two conditions are not a matter of serious debate in this case (the applicant’s submission to the Minister of Justice had not been completed when his application was filed in this Court but it has since been added to the record of the case and, whatever its effect on the Minister’s decision, it cannot be considered “frivolous”).

The principal bone of contention is the third condition, especially as regards the offence for which extradition is sought by the American authorities. The applicant does not downplay the gravity of this offence: he states in his application that “the offence … is a serious offence, for which he may be facing a lengthy term of imprisonment (10 years), and the prosecution case is apparently strong”. But, adds the applicant, in his case the crime of trafficking in marijuana on a large scale was neither violent nor heinous nor hateful, and it did not involve vulnerable persons as victims.

I am not prepared to accept the applicant’s argument in its entirety, for the scale of the operation in which he took part, his leadership role in it, and the disastrous consequences, socially and otherwise, of this kind of offence must also figure in the picture. [ 5 ] The applicant has a stronger point when he states that the likelihood of a long term of imprisonment and the strength of the prosecution’s case do not automatically warrant detention: all the attending circumstances merit examination. [ 6 ] In this instance, the following factors seem to me rather telling. [ 7 ] Apart from the events which led to the request for extradition, and which took place between 2008 and 2011, the applicant was

never accused, let alone suspected, of any offence between 2008 and 2016. He has no previous conviction. He is a Canadian citizen, does not have a dual citizenship and does not possess a passport. He lives with his common law spouse with whom he had a son in 2014. He owns a house and owns an active excavation business. Members of his family support his application: to this end, his sister is prepared to put up a bond and his father to secure a judicial mortgage on his dairy farm. [ 8 ] Last March, in Forget v.

Canada (Procureure générale) (États-Unis d’Amérique) , [5] my colleague Justice Doyon dismissed an application for release from prison by Mathieu Forget, an alleged accomplice of Colin Stewart who is named in the same request for extradition by the American authorities. However, there is at least one significant difference between that case and this one.

The following passage from my colleague’s judgment underscores it: [16] D’autre part, s’il est vrai que le requérant a des attaches ici et qu’il a deux enfants, j’estime que l’analyse de la confiance du public doit aussi se faire à la lumière d’incidents qui seraient survenus assez récemment. [17] En effet, le requérant a été accusé en juillet 2015 de plusieurs infractions qui seraient survenues entre les mois de mars et juillet de cette même année, dans un contexte, plaide-t-il, de violence conjugale.

La dénonciation fait état de trois chefs de menaces (mars, juin et juillet), voies de fait (juin), deux chefs de harcèlement (mars et juillet), et conduite dangereuse (juillet). Le requérant est toujours présumé innocent, certes, mais au stade de la mise en liberté, l’existence de ces accusations demeure pertinente, d’autant qu’une autre accusation a été déposée en août lui reprochant d’avoir transgressé ses conditions de mise en liberté. Cette dernière accusation revêt, quant à moi, une importance majeure.

Un public informé, apprenant qu’on reproche au requérant de ne pas avoir respecté ses conditions de mise en liberté moins d’un mois après s’être engagé, pourrait sérieusement s’interroger sur la manière d’administrer la justice s’il était néanmoins remis en liberté à certaines autres conditions alors qu’il est sous le coup d’une ordonnance de détention en vue d’être extradé pour des crimes sérieux. No such circumstance is present in the applicant’s case. [ 9 ] In light of all these elements, I conclude that the application should be granted.

FOR THE FOREGOING REASONS , I therefore: [ 10 ] GRANTS the applicant’s application and ORDERS his release pending the Minister of Justice's decision under s. 40 of the Extradition Act , on the following conditions: 10.1. A cash deposit of $5,000, to be made in the Office of the Superior Court by Ms. April M. Stewart (the applicant's sister), residing at 2130, 1 st Concession, Hinchinbrook, Quebec; 10.2. A judicial of $50,000 to be secured by Mr William R. Stewart (father of the applicant) on his dairy farm located at 1882, 3e Concession, Elgin, Quebec; 10.3.

The applicant shall have at all times in his possession and on his person a copy of these conditions 10.1 to 10.10; 10.4. The applicant shall reside at [...], Elgin, Quebec, unless this Court or a judge thereof permits otherwise prior to any change of address; 10.5. The applicant shall remain at all times within the territorial limits of the province of Quebec; 10.6. The applicant shall be at his residence every day from 12: 00 a.m. to 6:00 a.m; 10.7. The applicant shall not attempt to obtain a passport or any other travel document; 10.8.

The applicant shall work for Mini-Excavation et Plus, the company of which he is the sole shareholder; 10.9. Report in person to the RCMP at 461, rue Dufferin, Salaberry-de-Valleyfield, every Monday, Wednesday and Friday, between 8:00 a.m. and 4:00 p.m. and sign the register; 10.10. Provide a landline telephone number registered to this address and answer any calls made by law enforcement during his curfew. This number will be ______. 10.11. The applicant shall surrender into custody if and when ordered to do so. YVES-MARIE MORISSETTE , J.A.