2011 QCCA 590, 2011 QCCA 590

Unofficial English Translation Bouarfa c. Canada (Procureur général) 2011 QCCA 590 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004860-118 (500-36-004653-088) DATE: March 29, 2011 PRESIDED BY: THE HONOURABLE JACQUES DUFRESNE, J.A. ABDELHAKIM BOUARFA APPLICANT – Respondent v. THE ATTORNEY GENERAL OF CANADA, on behalf of the REPUBLIC OF FRANCE RESPONDENT – Applicant JUDGMENT [ 1 ] I have before me an application for judicial interim release presented by the applicant pending the Minister's decision on whether or not to issue an order of surrender.

BACKGROUND [ 2 ] The respondent seeks the applicant's extradition consequent to the convictions handed down in the judgments of July 26, 1993, and June 24, 1996, for of the following offences: Judgment dated July 26, 1993 • Conspiracy to traffic in a substance represented as cannabis resin contrary to

section 465 of the Criminal Code and to

section 5 of the Controlled Drug and Substances Act ; • Trafficking in a substance represented as cannabis resin contrary to

section 5 of the Controlled Drug and Substances Act. Judgment dated June 24, 1996 • Trafficking in cannabis resin contrary to

section 5 of the Controlled Drug and Substances Act ; • False statement in relation to a passport, contrary to subsection 57(2) of the Criminal Code . [ 3 ] The Tribunal de Grande Instance de Lyon (affaires correctionnelles) imposed a sentence of fifteen years' imprisonment on July 26, 1993, and of ten years' imprisonment on June 24, 1996.

The quantity of drugs involved was significant. [ 4 ] A brief overview of the main legal proceedings is required at this point. [ 5 ] The applicant has both Canadian and Algerian citizenship. [ 6 ] On March 17, 2008, the Republic of France requested that the Canadian authorities provisionally arrest the applicant. [ 7 ] On March 21, 2008, a Superior Court judge (the Honourable Mr. Justice James L. Brunton), District of Montreal, granted the application and issued a provisional arrest warrant against the applicant, pursuant to

section 13 of the Extradition Act [1] (hereinafter, "the Act"). This warrant was never executed. [ 8 ] The applicant states in his application that, under the Treaty between France and Algeria, he was summoned, arrested, detained, judged, and acquitted in Algeria on October 26, 2009, on the charges of which he was convicted in France in 1993 and 1996. The respondent adds that the applicant was acquitted in Algeria only of the charges from 1996.

Also, an appeal is apparently pending. [ 9 ] On August 21, 2010, the Royal Canadian Mounted Police Investigation Department learned that a temporary Canadian passport had been issued to the applicant on August 19, 2010, so he could visit Canada. Following this information, a new request for a provisional arrest warrant was brought before a Superior Court judge (the Honourable Mr. Justice André Vincent), District of Montreal,

who issued the warrant. [ 10 ] That same day, August 21, 2010, the applicant was arrested at the Montreal-Trudeau International Airport as he was getting off a flight from Algiers. [ 11 ] On September 8, 2010, the Republic of France presented an extradition request to the Canadian authorities concerning the applicant. [ 12 ] On November 3, 2010, the Minister of Justice of Canada issued an authority to proceed authorizing the Attorney General of Canada, on behalf of the Republic of France, to seek an order of committal with respect to the applicant, pursuant to

section 15 of the Act . [ 13 ] On November 22, 2010, the applicant, represented by counsel other than the one acting for him at present consented in writing to his committal for extradition, which was then ordered in accordance with sections 29 and 70 of the Act . The applicant, through counsel, is at the stage of making submissions concerning his possible extradition to the Minister of Justice of Canada, in accordance with

section 43 of the Act. [ 14 ] At the hearing, counsel for the applicant indicated his intention to ask the Minister to defer his decision until such time as the judgment of acquittal rendered in Algeria is final and conclusive. [ 15 ] The respondent argues that the applicant fled France while criminal proceedings were pending against him. The applicant points out that there is no evidence that he had knowledge of these proceedings.

The French legal documents sent to the Canadian authorities refer to his flight to Algeria. [ 16 ] Furthermore, the French authorities sent the Canadian authorities a letter dated November 3, 2010, in which they discuss the application of the Franco-Algerian treaty of August 27, 1964, with regard to exequatur and extradition as well as to the

interpretation given by the Cour de cassation of the question of res judicata . This letter concludes as follows: [ translation ] These facts, which were officially denounced to the Algerian authorities, occurred in France.

As such, in light of the details mentioned herein above, it does not appear in this case, subject to new evidence and to the analysis by the French jurisdiction that may hear the case, that the principle of ne bis in idem cannot prevent the prosecution and enforcement of a new conviction by the French authorities if the interested party is handed over as a result of the extradition request and if he wishes to request a new trial. [ 17 ] In addition, the respondent points out that under the Extradition Treaty Between the Government of Canada and the Government of the Republic of France (art 5, para 2), the fact that there was an acquittal or conviction in a third State is grounds only for discretionary refusal, not for mandatory extradition. [ 18 ] In any event, the impact of the judgments rendered in Algeria compared to the convictions handed down in France, on the basis of which the respondent seeks the applicant's extradition, is a separate issue from that respecting release.

APPLICATION FOR AN ORDER OF INTERIM RELEASE The applicable criteria [ 19 ] The applicant applies under

section 20 of the Extradition Act for judicial interim release pending the Minister's decision of whether or not to issue an order of surrender against him. [ 20 ]

Section 20 provides that

section 679 of the Criminal Code applies to the decision regarding the appellant’s interim release with any modifications that the circumstances require . The criteria or factors in subsection 679(3) Cr. C. are worded as follows:

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. [ 21 ] The modifications that the circumstances require must be brought to

section 679 Cr. C. They cannot, however, modify the burden borne by the appellant, who must demonstrate the existence of the three factors set out in subsection 679(3) Cr. C. [2] Assessment of the criteria for interim release [ 22 ] The respondent admits that the applicant's submissions are not frivolous within the meaning ascribed to that term in Garneau , [3] that is, they are not devoid of seriousness. The first criterion is thus met (s 679(3) Cr. C. ). [ 23 ] The two other criteria (s 679(3)(

b) and ( c )) remain to be assessed. [ 24 ] With regard to the second criterion, considering all of the circumstances, there is reason to fear that the applicant will not surrender to the authorities should there be an extradition order. [ 25 ] Indeed, the evidence shows that, in the past, the applicant has assumed several identities by using two different names and two different dates of birth, without justification. He also asked a man by the name of Monrad Gahgah to apply for a passport in his own name but using the applicant's picture.

In fact, on June 24, 1996, this same Monrad Gahgah was convicted by the Tribunal de Grande Instance de Lyon (affaires correctionnelles) and given a three-year sentence for his participation in the same offences as the applicant.

[ 26 ] The respondent insists on the fact that the applicant headed, financed, and organized the importation of significant quantities of drugs in connection with his convictions in France, which are at the source of the extradition request. [ 27 ] Also, upon verification by the investigator, the address he gave to the Canadian embassy in Algiers to obtain his temporary passport – apartment 104 at 305 Laviolette Street, Saint-Jérôme – has never been occupied by the applicant, nor could it be.

This building, which the applicant once owned, is a seniors' residence. [ 28 ] In his passport application, the applicant declared that he has been unemployed since 2008. In his affidavit, he states that he is the director and majority shareholder of companies that have received notices of default since he left Canada in 2008. [ 29 ] On August 26, 2010, the Royal Canadian Mounted Police received identification cards (driver's licence, health insurance card, social insurance card) in the names of Abdelhakim Bouarfa and Abdelhakim Sharabi Jamil.

The driver's licences and the health insurance cards in both cases bore the applicant's photograph. [ 30 ] Although he claims that he holds an interest in a piece of land next to 305 Laviolette Street, Saint-Jérôme, the evidence does not confirm this or indicate that the applicant currently owns any property in Canada. There is also no indication that he has any financial resources in Canada; his financial situation is unclear, to say the least.

He has previously sold a building he owned, the one at 305 Laviolette Street in Saint-Jérôme, but the profit from that sale was seized by Revenue Canada. [ 31 ] The applicant points out that he has two children in Canada, which would attest to this interest in staying here during the proceedings. He also indicates that he managed a seniors' residence here for a number of years. According to him, even when physically in Algeria, he never truly left Canada.

He is not, in his view, in a position to leave the country while warrants for his arrest have been issued around the world. [ 32 ] The applicant argues, moreover, that he has the means to provide a reasonable amount as surety. Both his brother Gacem and his sister Shaba could provide a surety to guarantee his presence before the court. The respondent raises doubts as to the quality of such sureties.

Specifically, it is alleged that the applicant's sister is not currently in Canada and has in the past (1995) declared that she has no contact with her brother. [ 33 ] Overall, I find that the applicant’s past conduct, particularly the inducement to make false documents (false passport), the use of false documents (driver's licence, health insurance card, and social insurance card) and the false statement to Canadian authorities to obtain a temporary passport, does not lead one to believe that he would surrender if an extradition order were issued.

Therefore, the applicant does not meet the second criterion of section 679(3)(

c) Cr. C. , which is sufficient to dismiss the application. Moreover, the accused's past conduct would be likely to undermine public confidence in the administration of justice if he were released (s 679(3)(

c) Cr. C. ). [4] [ 34 ] FOR THESE REASONS , the applicant’s application for judicial interim release is dismissed. JACQUES DUFRESNE, J.A. Mtre Alexandre Bergevin Bergevin & Associés For the applicant Mtre Ginette Gobeil Crown Prosecutor For the respondent Date of hearing: February 18, 2011