2010 QCCA 2403, 2010 QCCA 2403

Unofficial English Translation Lorenzo Lopez c. Canada (Procureur général) (États-Unis d'Amérique) 2010 QCCA 2403 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004797-104 (500-36-005514-107) DATE: December 23, 2010 PRESIDING: THE HONOURABLE NICHOLAS KASIRER, J.A. WILFREDO LORENZO LOPEZ APPELLANT – person concerned v. ATTORNEY GENERAL OF CANADA, on behalf of the United States of America RESPONDENT – extradition partner JUDGMENT I [ 1 ] Wilfredo Lorenzo Lopez seeks his interim release pursuant to subsections 20 (

a) and 20(

b) of the Extradition Act . [1] He awaits judgment on his appeal of an extradition order and of the Minister of Justice's decision to issue an order of surrender against him. II [ 2 ] In order to obtain the appellant's extradition, the United States of America filed a record of the case for prosecution, supported by two supplemental records of the case. The requesting State seeks extradition regarding charges of conspiracy to traffic in narcotics, specifically, MDMA ("ecstasy") and cocaine.

Moreover, the police investigation revealed that the appellant was seen bearing a firearm. [ 3 ] The authority to proceed dated May 4, 2010, lists as follows the offences in Canadian law corresponding to the alleged wrongful conduct: • Conspiracy to traffic [in] a substance contained in

Schedule I of the Controlled Drugs and Substances Act , contrary to

section 5 of the said Act and

Section 465 of the Criminal Code ; and • Conspiracy to traffic [in] a substance contained in

Schedule III of the Controlled Drugs and Substances Act , contrary to

section 5 of the said Act and

Section 465 of the Criminal Code ; and • Use of a firearm or imitation firearm in the commission of an offence, contrary to

section 85 of the Criminal Code . [ 4 ] According to a letter dated July 22, 2010, from the United States Department of Justice, which was filed into the record, the appellant faces a minimum prison sentence of fifteen years if he is convicted in the United States. [ 5 ] The appellant was arrested on July 16, 2010, and has been incarcerated ever since. [ 6 ] On August 10, 2010, the Superior Court, District of Montreal (the Honourable Mr. Justice Martin Vauclair), ordered the appellant's detention based on the ground set out in paragraph 515(10)(

c) Cr. C. , that is, "the detention is necessary to maintain confidence in the administration of justice...". [ 7 ] On November 9, 2010, following the extradition hearing, Vauclair J. ordered the appellant's committal until his surrender for extradition. [ 8 ] On November 11, 2010, by Notice of Appeal, the appellant appealed this decision before the Court. On November 29, 2010, the appellant made written submissions to the Minister of Justice of Canada in order to oppose his extradition. [ 9 ] In the Notice of Appeal, he argues that the trial judge erred in deciding that the evidence on the extradition record was

reliable when it essentially follows from criminal sources that were insufficiently corroborated. The appellant maintains that he has a serious defence in this matter, which, in his opinion, should be considered under the circumstances. [ 10 ] The appellant is a Canadian citizen and, in his view, all the facts alleged against him occurred in Canada. In his letter addressed to the Minister, he maintains that his extradition would constitute a violation of his rights under

section 6 of the Canadian Charter of Rights and Freedoms since prosecution in Canada is a realistic option. He notes that this argument might also be raised on appeal. [ 11 ] Relying on

section 20 of the Extradition Act , the appellant presents a new affidavit in support of his application for release. In the application, he asserts that his detention is unjustified according to the applicable criteria. He maintains, among other things, that there is no basis to determine that his detention would undermine public confidence in the administration of justice. III [ 12 ]

Section 20 of the Extradition Act provides: 20. Pour décider de la mise en liberté provisoire d’une personne, l’

article 679 du Code criminel s’applique, avec les adaptations nécessaires, jusqu’à, selon le cas :

a) décision définitive sur l’appel de son incarcération au

titre de l’article 29;

b) décision du ministre de prendre ou non un arrêté d’extradition la concernant au

titre de l’article 40;

c) décision définitive sur la révision judiciaire de cet arrêté. 20 .

Section 679 of the Criminal Code applies, with any modifications that the circumstances require, to the judicial interim release of a person pending (

a) a determination of an appeal from an order of committal made under

section 29; (

b) the Minister’s decision under

section 40 respecting the surrender of the person; or (

c) a determination of a judicial review of the Minister’s decision under

section 40 to order the surrender of the person. [ 13 ] The relevant excerpts of

section 679 of the Criminal Code , to which the Extradition Act refer, list the criteria applicable to an application for release:

(1) Un juge de la cour d’appel peut, en conformité avec le présent article, mettre un appelant en liberté en attendant la décision de son appel : […]

(2) Lorsqu’un appelant demande à un juge de la cour d’appel d’être mis en liberté en attendant la décision de son appel, il donne un avis écrit de la demande au poursuivant ou à toute autre personne qu’un juge de la cour d’appel indique.

(3) Dans le cas d’un appel mentionné à l’alinéa

(1) a) ou c ), le juge de la cour d’appel peut ordonner que l’appelant soit mis en liberté en attendant la décision de son appel, si l’appelant établit à la fois :

a) que l’appel ou la demande d’autorisation d’appel n’est pas futile;

b) qu’il se livrera en conformité avec les termes de l’ordonnance;

c) que sa détention n’est pas nécessaire dans l’intérêt public. […] 679.

(1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if, ...

(2) Where an appellant applies to a judge of the court of appeal to be released pending the determination of his appeal, he shall give written notice of the application to the prosecutor or to such other person as a judge of the court of appeal directs.

(3) In the case of an appeal referred to in paragraph (1)(

a) or ( c ), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that (

a) the appeal or application for leave to appeal is not frivolous; (

b) he will surrender himself into custody in accordance with the terms of the order; and (

c) his detention is not necessary in the public interest. ... [ 14 ] It is incumbent upon the appellant to show that the conditions prescribed in

section 679 Cr. C. are met, with the requisite adjustments required by the application of

section 20 of the Extradition Act . [2] In Rizzuto , [3] my colleague Doyon J.A. explained these adjustments required by

section 20 in the following way: [translation] [11] Bringing the modifications that the circumstances require to

section 679 Cr.

C. adapts the provision to the nature of the proceeding and may, for example, lead the court to: − analyze the question of the public interest in the context of an appeal of a committal order, not of a criminal conviction; − keep in mind the absence of a criminal conviction and the presumption of innocence; − with respect to the waiting period before the Minister’s decision, determine whether the issues raised in the appellant’s submissions to the Minister were not frivolous. [12] However, the modifications that the circumstances require cannot modify the appellant’s burden of demonstrating the existence of the three factors set out in section 679 (3) Cr.

C. IV [ 15 ] The extradition file reports a joint investigation led by the American Drug Enforcement Agency and the Royal Canadian Mounted Police regarding events that took place in 2004 and 2006. According to the file, the appellant, Christian Reinales, Cruceto Oviedo and other unidentified persons were members of an international drug trafficking organization. The organization, of which the appellant is a leader, set up a plan to export MDMA to the United States from Canada and to import cocaine into Canada from the United States.

[ 16 ] The information leading to the investigation came from an agent, identified in the file as the "confidential informant" (CI). He revealed to the American and Canadian authorities that the appellant, along with others, were conspiring to export significant quantities of MDMA from Canada into the United States. One of the individuals involved became an informant following his arrest and denounced the appellant's role to the authorities.

This individual is referred to in the file as the "cooperating witness" (CW). [ 17 ] The information from the CI enabled the authorities to intercept telephone conversations and to surveil a meeting that was held in Montreal on December 8, 2004, during which the appellant and his accomplices expressed the intent to organize an exchange of Canadian-made MDMA for cash and cocaine from the United States.

During the meeting, the appellant confirmed to the CI that his organization could supply the partners in the United States with 100,000 MDMA tablets per week for trafficking purposes in exchange for American cash and cocaine destined for the Canadian market. [ 18 ] The appellant was armed at this meeting held on December 8, 2004. The file sets out this fact as follows: "During this meeting, the CI observed LORENZO-LOPEZ carrying a handgun.

DEA and RCMP officers can testify that, during surveillance of this meeting, they also observed the handgun, which they knew, through their training and experience, to in fact be a handgun." [ 19 ] In preparation for the first planned deal, the appellant and the CW supplied a five-pill sample to the CI. Intercepted and analyzed by the authorities, this sample turned out to be MDMA. [ 20 ] Still in December of 2004, the appellant asked for the required quantity of cocaine to go from 10 to 20 kilos and for the quantity of MDMA tablets to go from 100,000 to 200,000 units.

The appellant set up a meeting, which was to be held in New York State, between Oviedo and the CI during which the twenty kilos of cocaine were to be exchanged for a cash amount. [ 21 ] In the moments before the New York meeting, Oviedo was intercepted by police officers for a traffic violation. The officers then discovered the sum of $180,000 in his car. It was noted in the file that this money was earmarked for the cocaine deal and could be linked to the appellant.

The money was confiscated and the deal called off. [ 22 ] Following this failure, the CI reached out to the CW to set up a new deal with the appellant and his accomplices. After hesitating for a while, the appellant agreed, in 2006, to go ahead with a new arrangement, similar to the first one. The CI is willing to testify that the appellant, Reinales, and the CW were in agreement to send a ten-tablet sample of MDMA to a postal box in Lindenhurst, New York, an address given to them by the CI.

The sample was intercepted and analyzed by the DEA authorities, who confirmed that it was indeed MDMA. [ 23 ] A meeting was set up for December 5, 2006, between the appellant, the CW, Oviedo, and Reinales in Queens, New York, for the purchase of 100,000 MDMA tablets. On the way there, the appellant was turned away at the border and never made it to the meeting. The CW was arrested in New York. He pleaded guilty to charges of conspiracy to traffic and possession for the purpose of trafficking in MDMA and cocaine. The CW then agreed to assist the American authorities.

The CW is willing to testify that he participated in an organization trafficking in narcotics, whose leader is the appellant. V [ 24 ] The appellant denies having participated in any conspiracy whatsoever. Following his arrest last July, he seeks his release while awaiting the Superior Court's decision on the order of committal for surrender. [ 25 ] During the hearing for his first application for release, the appellant brought affidavit evidence that his detention was unnecessary according to the criteria set out at subsection 515(10) Cr. C.

Before the Superior Court, the Crown challenged every element of the appellant's application by arguing the necessity of the appellant's detention to ensure his presence in court, to protect the public, and to maintain public confidence in the administration of justice. On August 10, 2010, the Superior Court judge decided that detention was unnecessary to ensure the appellant's presence in court. He also decided that detention was unnecessary to ensure the public's protection. Regarding the criterion set out in paragraph 515(10)(

c) Cr. C. , however, the judge accepted that the appellant's detention was necessary to maintain public confidence in the administration of justice. Thus, he refused to order the appellant's release. VI [ 26 ] The respondent's concessions allow us to narrow the issue of whether the application for release pursuant to 679 Cr.

C. is well-founded. [ 27 ] As for the criterion set out in paragraph 679(3)( a ), the respondent acknowledges that the grounds of appeal and the submissions to the Minister of Justice are not frivolous within the meaning of Garneau . [4] [ 28 ] The respondent also does not dispute the appellant's assertion that he would surrender in compliance with the terms of an order pursuant to paragraph 679(3)(

b) Cr. C. [ 29 ] The issue is therefore joined on the application of paragraph 679(3)(

c) Cr. C. The appellant must show that his detention is not necessary in the public interest. [ 30 ] We reiterate the explanation given for the public interest criterion by my colleague Dalphond J.A. in Divito v. Minister of Justice (Canada) : [5] [translation] [43] ... Thus, public interest refers to both the protection of the public and the necessity of processing the petitioner's application for release so as to maintain public confidence in the administration of justice. [ 31 ] Put this way, paragraph 679(3)(

c) Cr. C. is comprised of two aspects, each able to justify independently the appellant's

detention as being "necessary in the public interest". In Divito , for example, Dalphond J.A. found, that there would be no threat to the public if the petitioner was released. He nonetheless decided that to order the release would likely undermine public confidence in the administration of justice. This finding on its own, explained Dalphond J.A., could justify detention pursuant to paragraph 679(3)(

c) Cr. C . [6] [ 32 ] Concerning the protection of the public, I reiterate that in his release order dated August 10, 2010, Vauclair J. came to the conclusion that maintaining the appellant's detention was unnecessary to ensure the protection or security of the public within the meaning of paragraph 515(10)(

b) Cr. C. By deciding this, he accepted that nothing in the evidence before him indicated a marked probability that an offence would be committed by the appellant if he were to be released (para. [42]). He made this observation despite the weak probative value of the appellant's affidavit and the implausible testimony of his spouse on the appellant's lifestyle since 2006. Notwithstanding the weakness of the evidence adduced by the appellant on this issue, the judge was of the view that the security of the public would not be compromised by his release.

I will return to this point. [ 33 ] In her arguments on the application, counsel for the respondent vigorously maintained that the appellant's detention was necessary in the public interest. She kept from explicitly conceding that the release would not constitute a threat to the public.

She did not argue, however, that the appellant presented a danger; instead, she chose to highlight the argument that his release would undermine public confidence in the administration of justice. [ 34 ] Should the application be refused merely because the release would undermine public confidence in the administration of justice? [ 35 ] On this matter, Dalphond J.A., in Divito, explained that the elements listed in paragraph 515(10)(

c) Cr. C can provide inspiration in identifying the main elements relevant for determining whether the release is likely to undermine public confidence. [7] [ 36 ] Paragraph 515(10)(

c) Cr. C. , which has been amended by Parliament since Divito , provides that detention is necessary to maintain public confidence considering 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. [ 37 ] From the outset, we note that the criterion set out in paragraph 679(3)(

c) Cr. C. justifies detention, on its own, in "rare" cases only. [8] The determination of the rarity of a case is dictated by legitimate concerns with ensuring compliance to the principle of presumed innocence. This principle fully enters into play with an application for release at this stage of extradition proceedings concerning a person who is not otherwise dangerous and who will appear in court when required to do so. A judge must also take into account the constitutional right of the person concerned not to be deprived of release without just cause.

Although the appellant must bear the burden of proving that his release is justified according to the applicable criteria, the presumption of innocence must be at the forefront of the judge's mind because the facts alleged against the person concerned have not been subjected to trial. The appellant is still presumed innocent, even if Vauclair J. ordered his committal for the requested extradition. * * * [ 38 ] We will assess whether the detention is necessary in the public interest in these circumstances. To do so, we may refer for guidance to the four elements listed in paragraph 515(10)(

c) Cr. C. [ 39 ] It is not enough, of course, to merely note the presence of the four elements to refuse to release. In the words of Jurianz J.A. of the Court of Appeal for Ontario: No one factor is determinative. The four factors should be analyzed together.

Consideration of their combined effect in the context of all the circumstances enables the court to determine whether it is necessary to deny bail in order to maintain public confidence in the administration of justice. [9] * * * [ 40 ] Does the request for extradition appear to have merit? [ 41 ] Though the grounds of appeal are not frivolous, the respondent maintains that the appellant's extradition will in all likelihood be confirmed, after the appeal, through the Minister's decision. He relies on Rizutto , [10] a contrario , to assert that this likelihood militates in favour of detention at this stage.

The appellant argues the weakness of the extradition case and asserts that the evidence is entirely comprised of the statements of two tainted witnesses, the CI and the CW.

He added that the corroboration from the electronic surveillance suffers from the same weakness insofar as those same tainted witnesses are the ones identifying the voices caught on tape. [ 42 ] Certainly, a lack of independent corroboration of the testimony of the CI and the CW could weaken the case against the appellant at trial. [ 43 ] The respondent argues, however, that the evidence on the record is largely sufficient to justify extradition. He points out that the CI is an agent who collaborated throughout the investigation, not an informant who was arrested before deciding to assist the authorities.

Also, according to the respondent, the extradition file asserts that the testimony of the CI and CW are trustworthy. [11] He also notes that Vauclair J. found that the material evidence provided independent corroboration for the assertions of the CI and the CW.

The judge points to Oviedo's being stopped in New York State with $180,000 in his possession, the appellant’s being turned away at the border, and the use of a postal address identified by the appellant as fact that confirm the factual background established by the CI and the CQ and offer additional corroboration for the evidence obtained through electronic surveillance. [ 44 ] According to the respondent, even if the testimony was uncorroborated, this gap in the evidence would only become significant at trial, not at the extradition stage.

In Ferras , the Supreme Court reiterates that "[t]he extradition judge does not determine the guilt or innocence of the person sought. The only issue is whether evidence exists upon which a reasonable jury, properly instructed,

could convict."[12] Doherty J.A. of the Court of Appeal for Ontario gives a useful explanation of the principle in Anderson: [28] U.S.A. v. Ferras, (2006 SCC 33 , [2006] 2 S.C.R. 77), contemplates a limited qualitative evaluation of the evidenceproffered by the requesting state. As this court recently said in United States of America v. Thomlison, 2007 ONCA 42 , [2007]O.J. No. 246 at paras 45-46 (C.A.), U.S.A. v. Ferras, supra, does not envision weighing competing inferences that may arise from theevidence.

It does not contemplate that the extradition judge will decide whether a witness is credible or his or her evidence is reliable.Nor does it call upon the extradition judge to evaluate the relative strength of the case put forward by the requesting state. There is nopower to deny extradition in cases that appear to the extradition judge to be weak or unlikely to succeed at trial.[13] [45] I am of the view that the request for extradition appears to be well-founded. The alleged gaps in the evidence do not weakenthe strength of the arguments in favour of extradition.

As Vauclair J. pointed out, and I share his assessment, there is a [translation]"given set of facts that tends to demonstrate that the tainted witnesses are telling the truth" (para. [23]). Obviously, there is no question ofbinding the panel of the Court who will hear the appeal of the Superior Court judgment rendered on November 9, 2010. But the fact ofthe matter is that in light of the viewpoint of the single judge seized with the present application, the extradition of the appellant appearsto be likely. [46] A Canadian citizen, the appellant argues the protection afforded him under

section 6 of the Charter to oppose the extradition,both on appeal and in his submissions to the Minister. He claims that it was in Canada that the effects of the alleged offences were feltand it was in Canada that the wrongful facts occurred. This would militate in favour of prosecuting the appellant in Canada.

He raises"Canada's constitutional obligation" not to extradite him in these circumstances, citing Libman[14] and Lavoie,[15]among others, tosupport his position. [47] I will not say much about this argument, except to note that in Lake[16] – which judgment the appellant has failed to mention– the Supreme Court lists a number of factors relevant to choosing the jurisdiction in which the prosecution should take place.

In thatjudgment, the Court points out that "the infringement of an individual’s s. 6(1) mobility rights upon surrender will not be unjustifiedmerely because the Minister has decided, rather than prosecuting the individual in Canada, to defer to the foreign authorities seekingextradition."[17] In Cotroni,[18] La Forest J. assesses these considerations as against charges of transborder traffic in narcotics. For themajority, he dismisses the argument that it is irrational to surrender to a foreign country a Canadian citizen who allegedly committed actsfor which he or she could be tried in Canada.

In short, I find that the appellant's

section 6 arguments are highly debatable for an offencetermed "transborder" as in the case before us. [48] Therefore, the appellant has not convinced me that his extradition is without merit. * * * [49] How about the seriousness of the offence? [50] The seriousness of the offence – conspiracy to import drugs which must be characterized as "hard" – seems indisputable tome.

If authorities are needed to support this, I can do no better than refer once again to the words of Dalphond J.A. in Divito:[19] [translation] [50] As to the seriousness of the offence, there can be no question: attempted import of 300 kilos of cocaine, a powerful drug causingaddiction and the degeneration of its users, leaving in its wake the commission of various criminal acts by a number of them, such astheft, breaking and entering, and so on, not to mention the fact that it funds criminal networks.

The applicant has been, according thefacts alleged, a key player, if not the head, of this type of criminal organization. [51] In the present case, the quantity of narcotics at the centre of the conspiracy – 100,000 or more MDMA tablets per week andtwenty kilos of cocaine – make the charge serious within the meaning of Divito. Admittedly, as counsel for the appellant points out, theconspiracy was stymied, or practically so, since the 100,000 MDMA tablets or twenty kilos of cocaine in question were not seized, onlythe samples offered to establish the quality of the narcotic.

But the quantities at play in the conspiracy, though stymied, and the fact thata significant quantity of cocaine was to be used as currency are aggravating circumstances. [52] We know that no offence justifies detention merely on the basis of its seriousness.[20] The appellant maintains that the factsalleged against him have nothing of the heinous nature observed in Hall,[21] the seminal case in the subject matter that was decidedbefore the amendments to the Criminal Code.

Certainly, the violent aspect of Hall is not present here, but I cannot accept the argumentthat the offences alleged against the appellant are insufficiently serious to warrant the application of paragraph 679(3)(

c) Cr. C. In lightof the objective seriousness of the offence of conspiracy to import narcotics for trafficking purposes, this element is fully met. * * * [53] With regard to the quantum of the sentence that the appellant may receive, I add the following. [54] The appellant would incur a long period of incarceration – a minimum of fifteen years according to the letter by the Americanauthorities – should he be convicted. This factor is relevant pursuant to subparagraph 515(10)(c) (iv) Cr. C.

I am of the view that itstrongly militates in favour of his detention to maintain public confidence. * * * [55] The circumstances surrounding the perpetration of the alleged offence also include signs militating in favour of the necessityof detention in the public interest. [56] The appellant seeks to minimize the significance of the firearm in the facts – the account in the extradition file is apparentlyunclear when referring to this fact; use of the firearm was allegedly entirely limited to Canadian soil and it was not used in the

international conspiracy; violence was not alleged. It is certainly accurate to state, as Healy J. noted in Cantave , that [translation] "Parliament has not said that an accused must be denied bail whenever possession or use of a firearm is involved". [22] I find, however, that the alleged use of a firearm is an aggravating circumstance, even if the weapon was not otherwise used.

I note that this recent addition to the legislative criteria listed in subparagraph 515(10)( c ) (iii) is directly linked to the criterion of public confidence. [ 57 ] Even if I do not sit in review of Vauclair J.'s judgment dated November 9, 2010, I share his analysis of the appellant's involvement in the criminal enterprise alleged against him: [translation] "As to the applicant’s degree of involvement, it is total.

The evidence reveals that on at least one occasion LORENZO-LOPEZ was armed during a meeting and that he was, according to an accomplice, a leader of the criminal organization having access to an ecstasy manufacturing laboratory" (para. [35]). [ 58 ] The respondent insists on the significance of the appellant's role in what the file refers to as "an international drug trafficking organization" and of the testimony that the CW is ready to give in this respect.

Vauclair J. notes that the appellant puts himself [translation] "at the head" (para. [45]) of this organization. [ 59 ] What significance must we give to the facts assembled in the extradition file linking the appellant to a criminal organization? Certainly, the consideration is relevant in assessing the matter, among others, of whether detention is necessary to maintain public confidence. [23] At the hearing, counsel for the appellant questioned the significance of this observation in the facts and pointed out that the file contains few elements shoring up the nature of the organization in question.

Admittedly the organization’s size and its ability to act concertedly are not obvious on the face of the record. There is little on which to base the theory that it is a structured organization. Furthermore, the observation of the appellant's role as the leader of the organization is based, at this stage, on the inferences drawn from his role in the conspiracy and on the CW's assertion.

However, the appellant was unable to weaken the strong impression left after reading the file of an organization behind the alleged conspiracy enabling the appellant to work with others to mobilize 100,000 MDMA tablets on a weekly basis, to ensure the resale of considerable quantities of cocaine in Canada, and to amass significant amounts of money, including the $180,000 seized, to support the operation.

This also would undermine public confidence if the appellant were released. * * * [ 60 ] One of the circumstances likely to reassure a public faced with the possibility of the appellant's release is the time lapse between the last criminal acts alleged and the appellant’s arrest. [24] In this case, the extradition file lists the month of December of 2006 as the last relevant date in the alleged conspiracy. The appellant was arrested in July of 2010.

As Vauclair J. points out, during almost four years in between those two dates, the appellant was never in trouble with the law. [ 61 ] His counsel argues that there is nothing in the appellant's profile that would indicate any criminal activity since 2006. Employed by a cleaning service until October of 2008, the appellant was laid off and decided to devote himself to his family for a time. His spouse gave birth to a second child.

The family led a [ translation ] "quiet life", to quote the appellant's counsel, lived in a relatively modest apartment, with a lifestyle befitting the modest means the appellant and his spouse had at their disposal.

Counsel for the appellant invokes Coates , rendered by this Court, where the significant time lapse between the end of the alleged criminal activities was taken into account in deciding the issue of release. [25] [ 62 ] The respondent, reiterating the doubts expressed by Vauclair J. in his judgment on the appellant's application for release, finds the evidence submitted by the appellant regarding his uneventful life since 2006 to be lacking. According to the respondent, despite his modest means, the appellant owns a Mercedes; even used, such a vehicle is hardly compatible with the simple life he is putting forth.

Repeated trips to the Dominican Republic, a country where the appellant has family, suggests that he has access to other revenue, as does his decision not to work after October of 2008. His EI benefits and the parental benefits received by the family cannot sufficiently explain how the appellant supports his family. The respondent questions the appellant's chances of finding work should he be released. At the hearing for his first application for release, the appellant had submitted a letter from his former employer Solnex promising to give him a job, a promise that no longer stands.

The appellant asserts that he has employment opportunities but, other than his affidavit, the evidence is unpersuasive. [ 63 ] Even if the evidence submitted by the appellant is indeed lacking, and the quality of the affidavit leaves something to be desired, I am not ready to infer from this evidence of misconduct on the appellant's part. [ 64 ] But though there is no evidence to infer criminal activity, I do not see any evidence as powerful as that found in Coates to reassure the public concerning the possibility of releasing the appellant.

In Coates , the quality of the evidence concerning the applicant's blameless life was strong. The applicant thus used it to his benefit to demonstrate that he was not a danger to the public and that his release would not undermine public confidence. In this case, the persistent doubts regarding the appellant's income are such that his period of "good conduct" does not have the same reassuring effect as in Coates . We must not forget that the burden of proof rests with the appellant.

At best, this evidence is neutral as to whether the release would undermine public confidence. * * * [ 65 ] I am of the view that this is one of those rare cases where the appellant's detention is necessary in order to maintain public confidence. There is no denying that the elements relevant for assessing this aspect of the public interest are present.

Applying three of these considerations to public confidence leaves no room for doubt in this case: the request for extradition appears to be well-founded, even likely; the seriousness of the offence is established; and the term of imprisonment that the appellant faces should he be convicted is lengthy. These three elements strongly militate in favour of detention.

In the circumstances of this case, a well-informed member of the public would not easily accept the appellant’s release at this point, even taking into account the presumption of innocence. [ 66 ] As for the criterion of the circumstances surrounding the offence, including the use of a firearm, I am of the opinion that this also militates in favour of detention. Though according to the extradition file the use of a firearm is not at the heart of the criminal deal, it cannot be ignored, and the appellant was not able to reduce its significance.

Even though the criminal organization to which the appellant is allegedly tied may not have the structure of some others in this country, it nonetheless creates a circumstance that would diminish an informed public's confidence, if the appellant were to be released.

[ 67 ] Finally, I reiterate that Vauclair J. considered the evidence in support of the request for extradition and he ordered the appellant's committal. This fact, taken on its own, is obviously insufficient to justify detention, but it is one more reason weighing against the appellant. Releasing the appellant after a judge has made an order of committal risks undermining public confidence in the extradition system when, according to the evidence, the extradition appears to be well-founded. FOR THESE REASONS , the undersigned: [ 68 ] DISMISSES the application; NICHOLAS KASIRER, J.A.

Mtre Marie-Hélène Giroux MONTEROSSO GIROUX For the appellant Mtre Ginette Gobeil DEPARTMENT OF JUSTICE CANADA For the respondent Date of hearing: December 17, 2010