2016 QCCA 1839, 2016 QCCA 1839

Stewart c. Canada (Attorney General) 2016 QCCA 1839 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006274-169 (500-36-007874-152) MINUTES OF THE HEARING DATE : November 11, 2016 THE HONOURABLE MARK SCHRAGER, J.A. PETITIONER COUNSEL COLIN STEWART Mtre PIERRE L’ÉCUYER RESPONDENT COUNSEL ATTORNEY GENERAL OF CANADA Mtre MAGUY HACHEM ( Ministère de la Justice Canada ) DESCRIPTION : Motion to be released from custody pending the determination of the appeal ( art. 57(4) Extradition Act and 679 Cr.c. ) Clerk : Annabel David Courtroom : RC-18

HEARING 9 : 33 Roll call and identification of counsel. The motion is not contested and both parties have agreed on conditions. Suspension of the hearing. 9 : 36 Resumption of the hearing. Judgment – see page 3. 9 : 38 Conclusion of the hearing. (

s) Annabel David Clerk BY THE JUDGE JUDGMENT [ 1 ] The Applicant seeks his release from prison pending judicial review by this Court of the decision of the Minister of Justice of Canada not to intervene into a committal order issued by a judge of the Superior Court under the Extradition Act . [1] [ 2 ] The United States’ Government seeks Applicant’s extradition to stand trial and charges of conspiracy to traffic in marijuana. It is alleged that Applicant was involved in the importation of large quantities of the drug from Quebec to the State of New York through the Akwesasne Mohawk Indian Reservation. [ 3 ] The motion is governed by Section 57(4) of the Extradition Act and

Section 679 of the Cr.c. , which permit me to order Applicant’s release if he establishes that his motion for judicial review is not frivolous, that he will surrender himself into custody and that his detention is not required in the public interest. The latter criterion is really twofold – i.e. does Applicant present a danger if released and would the public’s trust in the administration of justice be depreciated by such release? [2] [ 4 ] The motion is not contested by the Respondent but I must nonetheless be satisfied that the criteria of

Section 679 Cr.c. are met. [ 5 ] The latter criterion was considered in detail by my colleague, the Honourable Yves-Marie Morissette J.A. in May 2016, in deciding to grant release to Applicant pending the Minister’s decision on the committal order. [3] I see no difference in the current facts other than the refusal of the Minister to intervene.

Accordingly, and though I am not, strictly speaking, bound by my colleague’s decision, I do not see that the public interest requires Applicant’s continued detention pending judicial review. [ 6 ] As well, Applicant maintains without contradiction that he complied with all of the conditions imposed by my colleague and would continue to be bound. Applicant surrendered himself into custody at the appropriate time. He has vocational and family ties to the community; he has no passport.

Applicant does not appear to be a flight risk so that the second criterion for release is satisfied. [ 7 ] As for the first criterion, the grounds invoked in support of the motion for judicial review before this Court of the decision of the Minister of Justice are, summarily:

i) Failure to consider all the relevant facts including risk of reprisal by Applicant’s alleged accomplices in the United States, which risk endangers Applicant’s security; ii) Failure by the Minister to fully disclose evidence in her possession; iii) Failure by the Minister to properly apply

Article 17 bis of the Extradition Treaty between Canada and the United States by not opting to prosecute Applicant in Canada. [ 8 ] While the grounds alleged are somewhat general, if not generic, [4] I cannot, at this stage, say that they are frivolous; they are, at the least, arguable. [ 9 ] Accordingly, in my view, the criteria of

Section 679 Cr.c. are satisfied so that I will order release subject to substantially the same conditions imposed in the judgment of my colleague, the Honourable Justice Morissette J.A. and currently negotiated by the parties. FOR THE FOREGOING REASONS, THE UNDERSIGNED: [ 10 ] GRANTS the application for interim release; [ 11 ] ORDERS the release of Applicant pending the judicial review before this Court of the decision of the Minister of Justice, Canada, dated October 12, 2016, subject to the following conditions: 11.1.

Maintain the cash deposit of $5,000 already made before the Superior Court by the Applicant’s sister, Ms. April M. Stewart, residing at […], Hinchinbrook, Quebec; 11.2. Maintain the judicial hypothec of $50,000 already secured by the Applicant’s father, Mr. William R. Stewart, on his dairy farm located at 1882, 3e Concession, Elgin, Quebec; 11.3. Keep the peace and be of good behaviour and appear in Court whenever required; 11.4. Do not attempt to obtain a passport or any other travel document; 11.5.

Reside at 525, 1 st Concession, Elgin, Quebec, unless this Court or a Judge thereof permits otherwise prior any change of address; 11.6. Be at this address between 10:00 p.m. and 6:00 a.m.; 11.7. Remain at all times within the territorial limits of the province of Quebec; 11.8. Provide a landline telephone number registered to this address and answer any calls made by law enforcement during his curfew. This number will be 450-264-0206; 11.9. Do not communicate with Mathieu Forget except in the presence of his attorneys and for the preparation of this case; 11.10.

The Applicant shall work for Mini-Excavation et Plus, the company of which he is the sole shareholder; 11.11. Report in person to the Sûreté du Québec at 25 rue Paul, Ormstown, Quebec, between 8:00 a.m. and 4:30 p.m. and sign the register every Monday, Wednesday and Friday, starting November 14 th , 2016; 11.12. Surrender into the custody of the Rivière-des-Prairies Detention Center no later than 4:00 p.m. on the day prior to the hearing of the application for judicial review.

The Applicant acknowledges having been informed that his failure to do so may result in the petition being dismissed without a hearing; 11.13. The Applicant shall have at all times in his possession and on his person a copy of these conditions. MARK SCHRAGER , J.A.