2020 QCCA 774, 2020 QCCA 774

Damgajian c. Minister of Justice of Canada (Unites States of America) 2020 QCCA 774 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007079-195 MINUTES OF HEARING DATE: June 10, 2020 THE HONOURABLE ROBERT M. MAINVILLE, J.A.

APPELLANT COUNSEL Joseph Damgajian Mtre Pierre Poupart ( Les avocats Poupart, Touma ) By visioconference RESPONDENT COUNSEL Minister of justice of Canada Mtre Laurent Brisebois ( Ministère de la Justice Canada ) By videooconference IMPLEADED PARTY COUNSEL unites states of america Mtre Laurent Brisebois ( Ministère de la Justice Canada ) By videoconference DESCRIPTION: Application for release (Sections 679 Cr.c. and 31 of the Rules of the Court of Appeal in Criminal Matters ) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 10:20 Commencement of the hearing. Identification of counsel.

Preliminary comments 10:21 The judge addresses counsel 10:22 Submissions by Mtre Brisebois.

10:26 Submissions by Mtre Poupart. 10:30 Comments by Mtre Brisebois. Discussions between counsel and the judge. 10:33 BY THE JUDGE: Judgment – see page 3. 10:36 Conclusion of the hearing.

Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] The applicant seeks his release from custody pending the determination of his application before this Court for judicial review under s. 57 of the Extradition Act of the decision of the Minister of Justice of Canada (“Minister”) ordering his surrender for extradition to the United States of America to face charges in relation to the importation and distribution of pseudoephedrine. That substance is marketed under different names and is principally used as a decongestant. However, it is also a precursor to methamphetamine.

The applicant is alleged to have sold and delivered pseudoephedrine through the postal system to customers in the United States without holding the required permits. [ 2 ] On April 6, 2017, this Court quashed the initial order of the Minister to extradite the applicant and referred the matter back to determine if an order of surrender should be issued: Damagian v.

The Attorney General of Canada (United States of America) , 2017 QCCA 621 , application for leave to appeal to the SCC dismissed November 23, 2017 (file 37601). [ 3 ] The Minister has since reconsidered the matter and, on April 18, 2019, issued a new surrender order with respect to the extradition of the applicant. It is with respect to that new order that the applicant is now seeking judicial review in this Court. A hearing on the matter should be held by the end of 2020. [ 4 ] The applicant was released twice from custody by judges of this Court.

The first release was pursuant to an order dated May 18, 2016 issued by Bich, J.A. pending the outcome of his first successful judicial review application: 2016 QCCA 862 . The second was following an order dated June 9, 2017 issued by Schrager, J.A. pending the Minister’s appeal to the Supreme Court of Canada: 2017 QCCA 931 . [ 5 ] He now asks to be released anew pending the outcome of his judicial review application. [ 6 ] Pursuant to s. 57(4) of the Extradition Act , s. 679 of the Criminal Code (“ Cr.C . ”) governs the application for release.

Specifically, s. 676(3) Cr.C . allows a judge of this Court to order the release of the applicant if he establishes that (

a) the application for judicial review 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. [ 7 ] The pending application for judicial review raises serious questions, notably whether the applicant’s extradition would be contrary to fundamental principles of justice taking into account the disparity in actual sentencing between Canada and the United States of America for similar offences. [ 8 ] The applicant surrendered himself voluntarily into custody under the terms of the two previous release orders issued by judges of this Court, and there is nothing before me that would indicate he would not do so again should he be released from custody anew. [ 9 ] The attorney representing the Minister is also of the view that the detention of the applicant is not necessary in the public interest.

He further agrees that the prior conditions under which the applicant was released should be considerably relaxed in light of the applicant’s good behaviour and the low security risk he represents. [ 10 ] Taking into account the circumstances of this case, including more particularly the consent of the Minister’s representative both to the applicant’s release and to the conditions of release, I conclude that the criteria for ordering the release from custody are satisfied.

FOR THESE REASONS, THE UNDERSIGNED: [ 11 ] GRANTS the application for the release of the applicant pending the disposition of his judicial review application before the Court; [ 12 ] ORDERS the release from custody of Joseph Damgajian pending the outcome of his judicial review application before this Court, subject to the following conditions: 1. Maintain the following undertakings at all times:

(a) $5,000 with deposit by the applicant Joseph Damgajian; (b) $5,000 without deposit by Maurice Damgajian (father); (c) $2,000 with deposit by Amika Damgajian (mother); The whole for a total of $12,000; 2. Keep the peace, be of good behavior and attend court whenever required; 3. Remain within the boundaries of the Province of Quebec for the duration of his release; 4.

Abstain from applying for any passport or travel documents from any jurisdiction, including Canada, and ensure that all his passports previously surrendered to the Registry of the Superior Court, including his Canadian passport, his US passport and his Lebanese passport, remain so surrendered; 5. Reside with his former spouse, Renita Almeida, at [...], Montreal, Quebec, [...], and not change his place of residence without the prior consent of the Court or one of its judges; 6.

Remain at that address ([...], Montreal, Quebec, [...]) between 23:00 hours and 06:00 hours every day of the week, except for the purposes of legitimate employment, legitimate charity work or a medical emergency; 7. Maintain at all times in working order a telephone landline bearing number 514 [...] without call forwarding capabilities or hidden call number features, and answer any call made by a peace officer to said telephone number between 23:00 hours and 06:00 hours; 8.

Starting as of June 16, 2020, report to the Royal Canadian Mounted Police (“RCMP”) twice a week, every Tuesday and Friday, at 4225 Dorchester Blvd., Westmount, Quebec H3Z 1V5, and sign the register provided for this purpose at that address between 10:00 hours and 14:00 hours on each of these days.

However, as long as a public health emergency is maintained by the Government of Quebec with respect to the COVID-19 pandemic, this condition may also be fulfilled by personally calling the offices of the RCMP on those days and during such hours at telephone number 514-[...] from the land line bearing number 514-[...]. 9. Abstain from communicating, directly or indirectly, with any individual who, to his knowledge, has a criminal record or is facing pending criminal charges; 10. Abstain from communicating or attempting to communicate in any manner with persons who use or sell illicit drugs or narcotics; 11.

Abstain from: (

a) having in his possession pseudoephedrine or any illicit drug or narcotic, except in accordance with a validly obtained medical prescription; (

b) selling, sending, procuring, giving or otherwise trafficking to anyone in any manner whatsoever pseudoephedrine or any illicit drug or narcotic; (

c) using the postal system of the United States of America or of Australia; (

d) sending by any means a letter, parcel or any other package to the United States of America or to Australia, directly or indirectly; 12. Refrain from having in his possession or carrying, for any purpose whatsoever, offensive or restricted-use weapons or imitation weapons, including starter pistols and pellet pistols, firearms, cross-bows, prohibited weapons and prohibited devices; 13. Surrender himself to the Rivière-des-Prairies Detention Center situated at 11900 Armand-Chaput Avenue, Montreal, Quebec, H1C 1S7, no later than 16:00 hours on the day prior to the hearing of his application for judicial review.

Failure to do so may also result in the dismissal of his application for judicial review. 14. Keep a copy of these conditions on him at all times outside his place of residence. [ 13 ] ORDERS that all these undertakings and conditions must be entered into by Joseph Damgajian, prior to his release from detention, in a recognizance signed before a justice of the peace assigned to such matters. ROBERT M. MAINVILLE, J.A.