2014 QCCA 1609, 2014 QCCA 1609

Bulaman c. Canada (Attorney General) (United States of America) 2014 QCCA 1609 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005597-149 MINUTES OF HEARING DATE: August 27, 2014 THE HONOURABLE MADAM JUSTICE GENEVIÈVE MARCOTTE, J.A. PETITIONER ATTORNEY SEYAZIR BULAMAN Mtre julius h. grey ( Grey & Casgrain s.e.n.

c) RESPONDENT ATTORNEY ATTORNEY GENERAL OF CANADA on behalf of UNITED STATES OF AMERICA Mtre Constantina antonopoulos ( Ministère de la Justice Canada ) DESCRIPTION: Motion for release from prison pending hearing (Under

section 20 of the Extradition Act and

Section 679 of the Criminal Code ) Clerk: Asma Berrak Courtroom: RC.18 HEARING

9 :50 Commencement of hearing. Identification of counsel. Submission by Mtre Grey. 10:12 Submission by Mtre Antonopoulos. 10:31 Reply by Mtre Grey. 10 :34 Judgment will be rendered this afternoon. Attorneys' presence is not required. Conclusion of hearing. Clerk BY THE JUDGE JUDGMENT [ 1 ] The Motion for release from prison pending hearing is dismissed ; [ 2 ] Reasons will follow. GENEVIÈVE MARCOTTE , J.A. Bulaman c.

Canada (Attorney General) (United States of America) 2014 QCCA 1609 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005597-149 (500-36-006542-123) DATE: SEPTEMBER 3, 2014 IN THE PRESENCE OF THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. SEZAYIR BULAMAN PETITIONER – Person sought v. ATTORNEY GENERAL OF CANADA on behalf of UNITED STATES OF AMERICA RESPONDENT – Extradition Partner

REASONS FOR JUDGMENT RENDERED ON AUGUST 27, 2014 [1] I am seized with a Motion for release from prison pending hearing pursuant to

section 20 of the Extradition Act . [1] Mr. Sezayir Bulaman seeks release pending the hearing scheduled for October 30, 2014 of his Motion for judicial review of the Decision and Order of Surrender signed by the Minister of Justice on January 29, 2014 (“ Minister’s Decision ”). [2] The Minister’s Decision follows a request by the United States of America for Mr. Bulaman’s extradition for prosecution in the United States on the offence of conspiracy to distribute and possess five kilograms or more of cocaine. [ 3 ] In March 2013, Mr. Bulaman presented a Motion for judicial interim release pursuant to sub- section 18(1) (

b) and

section 19 of the Extradition Act . These provisions make sub- section 515(10) of the Criminal Code applicable in the circumstances. [ 4 ] In virtue of this sub-section, an accused's detention is only justified on one of the following grounds: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and (

c) on any other just cause being shown and, without limiting the generality of the foregoing, 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 nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment. [ 5 ] On April 11, 2013, following a two-day hearing, Cohen, J. of the Superior Court dismissed Mr. Bulaman’s Motion (“ Cohen judgment ”) for the following reasons: 1) Mr.

Bulaman presented a flight risk, as he lacked connections in Canada and had possible connections in Germany where he lived from 1978 to 1994. He had no other plans than to live with his sister and work for a Ms.

Thompson and could want to flee from Canada because of the strength of the case against him and the fact that he faced a potential sentence of 10 years to life, if convicted. 2) He presented a danger to public safety in light of the probability of conviction and the gravity of the alleged offence. 3) His interim release could undermine the confidence in the administration of justice, given the probability of conviction and the gravity of the offence along with an alleged association with a criminal organisation. [2] [ 6 ] The Motion now before me is a fresh application and not a review of the Cohen judgment. [ 7 ] In the present Motion, Mr.

Bulaman alleges that since the Cohen judgment, an order of committal was entered by Cournoyer, J. of the Superior Court, on August 29, 2013 (“ Committal judgment ”), which acknowledges different weaknesses and deficiencies in the proof presented by the United States in the Record of the Case (“ ROC ”), namely the general lack of details and the lack of surveillance or corroborating evidence. [3] [ 8 ] While Mr.

Bulaman recognizes that these weaknesses were not sufficient to avoid his committal into custody which he has not appealed, he asserts that the judge’s comments regarding certain weaknesses in the proof of the ROC affect the applicable criteria in a Motion for judicial interim release. [ 9 ]

Section 20 of the Act renders

section 679 of the Criminal Code applicable to a hearing such as this one, “ with any modifications that the circumstances may require ”. [ 10 ] Therefore, in order to succeed, Mr. Bulaman must establish on a balance of probabilities all of the following criteria set out in sub-section 679(3), as modified by the extradition context: (

a) that his representations made with respect to the Minister’s Decision are not frivolous [4] ; (

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

c) that his detention is not necessary in the public interest. [ 11 ] On the first criteria, Mr. Bulaman submits that he has a valid argument to present in his Motion for judicial review, based on the Minister’s failure to obtain guarantees from the United States that he will not be returned to Turkey, his country of origin, where he claims that he stands to be returned, upon his eventual release from prison in the United States. [ 12 ] On the second criteria, he submits that he intends to surrender himself into custody in accordance with the order.

He claims that, although a permanent resident of Canada, he is apatrid and has no travel documents. As a result, he states that he is unable to leave Canada or to enter another country and has no interest in entering the United States for obvious reasons. [ 13 ] He is also willing to wear a security bracelet at his own cost to allow the authorities to control his comings and goings and his compliance with any condition that may be imposed.

[ 14 ] Moreover, a number of individuals, including his sister, are willing to post bail for him and his AA sponsor offers to provide him with room and board and to supervise him at least for a portion of his release.

He also claims that he will be able to find work. [ 15 ] On the third criteria, he argues that his detention is not necessary in the public interest and that a well-informed member of the public would not be shocked or disturbed by the fact that he is released in a case where his involvement in the alleged criminal activities is not clearly established, where he has no criminal record and where, as a result, the risk of reoffending is low. [ 16 ] He underlines that he has been incarcerated for 21 months already without having stood trial and that he will only be extradited in the fall, if not later, if the case is returned to the Minister or is appealed to the Supreme Court of Canada. [ 17 ] The Attorney General of Canada acting on behalf of the United States of America (“ Attorney General ”) contests his Motion, arguing that Mr.

Bulaman’s situation has not improved since the Cohen judgment which refused his initial Motion for judicial interim release. [ 18 ] In fact, the Attorney General submits that the flight risk has increased since Mr. Bulaman offers less guarantees than he did in March 2013, with the withdrawal of his former spouse and his cousins’ offers to post bail.

He has no current job offer and his connections to Canada are no greater than they were in 2013, as he has no children and is in the midst of a divorce. [ 19 ] The Attorney General takes no comfort from the proposed security bracelet which cannot eliminate flight risk. Rather, the Attorney General claims that it is highly improbable that Mr. Bulaman will surrender himself into custody prior to the hearing on the Motion for judicial review scheduled in less than 2 months. [ 20 ] The Attorney General emphasizes that the absence of travel documents is no guarantee that Mr.

Bulaman will not leave the country as he initially entered Canada using a false Italian passport, prior to claiming refugee status in Canada. [ 21 ] Finally, the Attorney General insists on Canada’s international treaty obligations which weigh against Mr. Bulaman’s release. [ 22 ] In his Motion for judicial review, Mr. Bulaman asks that, prior to his surrender, the Minister be ordered to obtain guarantees from the United States that he will not be returned to Turkey upon his release from prison. [5] [ 23 ] To satisfy sub- section 679

(3) a) of the Criminal Code , it is sufficient for the Petitioner to demonstrate that his argument is not frivolous. [6] I believe that he has done so. [ 24 ] However, I am unable to conclude that the other two criteria of sub- section 679(3) of the Criminal Code are satisfied. [ 25 ] Indeed, on the second criteria, in view of his alleged association with a criminal organization for the purpose of drug distribution and transport and the fact that he faces a potential jail sentence of 10 years to life for the offence for which he is charged in the United States, the burden of showing that he will surrender himself into custody is a heavier one, as underlined by Dalphond, J. in Divito c.

Canada (Ministre de la justice) . [7] [ 26 ] As in the Divito matter, Mr. Bulaman has no concrete plans, other than to either live with his sister on her farm in Hemmingford (where the security bracelet will not be available in the absence of proper coverage for the device in the area), or alternatively, to live with his AA sponsor in Montreal (where the latter will only be able to supervise him for a portion of his stay), prior to the hearing on the Motion for judicial review. [ 27 ] I agree with the Attorney General’s argument that, in any event, the bracelet is not a guarantee against flight risk.

Neither is the lack of travel documents, given Mr. Bulaman’s past use of fraudulent travel documents. Moreover, the financial guarantees offered by friends and relatives at this stage have been reduced from what they were initially, when Mr. Bulaman’s was first denied interim judicial release in April 2013. Furthermore, his association with a criminal organization undermines the proposition that he is likely to surrender himself into custody, when required. [ 28 ] Finally, in analyzing the third criteria as it pertains to determining whether Mr.

Bulaman’s detention is necessary in the public interest, I refer to the principles set out by Dalphond, J. in Divito [8] , and applied by Kasirer, J. in Lorenzo-Lopez, c. Etats-Unis D’Amérique [9] , taking into account the relevant elements of sub- section 510

(10) c) of the Criminal Code , while adapting them to the context of extradition. These elements are:

i) Whether the extradition appears to be founded; ii) The gravity of the offence; iii) The circumstances of the offence; iv) The potential sentence in case of conviction. [ 29 ] While Mr. Bulaman asserts that there are weaknesses in the proof in the ROC, as pointed out by Cournoyer, J., and that they expose him to the risk of being imprisoned in the United States while being innocent, the fact remains that he has already been ordered into custody regardless of these weaknesses and the Committal judgment has not been appealed. As a result, there is no doubt that the extradition is founded at this stage. [ 30 ] Regarding the other relevant elements under sub- section 510

(10) c) of Criminal Code as they relate to the gravity of the offence, its circumstances and the potential sentence of conviction, it is undeniable that conspiracy to distribute and process in excess of 5 kg of cocaine (in fact 100 kg were seized) is a very serious offence because of the devastating impact of this illegal drug on society as a whole, resulting addiction and the criminality to which it gives rise. It is for this very reason that this type of offence is punishable in the United States by imprisonment ranging from 10 years to life sentence.

[ 31 ] In light of the foregoing, I am unable to conclude that Mr. Bulaman’s detention is not necessary in the public interest or that granting his release pending a hearing scheduled in two months would not discredit the administration of justice in the eyes of a well- informed public. [ 32 ] Given that Mr. Bulaman has failed to satisfy all of the criteria of sub- section 679(3) of the Criminal Code , his Motion for release from prison pending the hearing scheduled on October 30, 2014 must be dismissed. FOR THESE REASONS, THE UNDERSIGNED: [ 33 ] DISMISSES the Motion for release from prison pending hearing.

GENEVIÈVE MARCOTTE, J.A. Mtre Julius Grey GREY & CASGRAIN For Petitioner Mtre Constantina Antonopoulos MINISTER OF JUSTICE OF CANADA For Respondent Date of hearing: August 27, 2014