2016 QCCA 1423, 2016 QCCA 1423

Forget c. Canada (Procureure générale) (États-Unis d'Amérique) 2016 QCCA 1423 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL No: 500-10-006207-169 (500-36-007873-154) PROCÈS-VERBAL D'AUDIENCE DATE : Le 8 septembre 2016 L’HONORABLE ROBERT M. MAINVILLE, J.C.A. REQUÉRANT AVOCAT MATHIEU FORGET Me CLEMENT MONTEROSSO ( Monterosso Giroux Avocats ) INTIMÉ AVOCATE PROCUREUR GÉNÉRAL DU CANADA POUR Les États-Unis D’amérique Me JOSHUA WILNER ( Ministère de la Justice Canada ) DESCRIPTION : Requête pour mise en liberté (art. 20 (

c) Loi sur l’extradition et arts. 679(1) et 515 Code criminel ) Greffière d'audience : Annabel David SALLE RC-18

AUDITION 9 h 40 Les avocats sont présents pour le prononcé du jugement. Il leur sera d’ailleurs transmis par courriel par la suite. (

s) Annabel David Greffière d'audience BY THE JUDGE JUDGEMENT [ 1 ] The applicant is seeking his release from custody pending the review by this Court of an extradition order issued by the Minister of Justice. [ 2 ] The American government is seeking to have the applicant extradited to the United States of America and to have him face prosecution in the State of New York for a serious drug trafficking offense.

According to the materials provided by the American authorities in support of the extradition request, it is alleged that an investigation carried out by United States law enforcement revealed that, between September 2010 and March 2011, the applicant was part of an organized criminal group that conspired to import large quantities of marijuana from Quebec into the State of New York through the Akwesasne Mohawk Indian Reserve. [ 3 ] It is further alleged that the applicant transported marijuana by boat across the St. Lawrence River as directed by co-defendant Colin Stewart.

It is also alleged that in December 2010, the applicant began directing his own marijuana smuggling operations. [ 4 ] On December 9, 2015, the applicant was arrested on a warrant obtained pursuant to the Extradition Act , RSC, 1985, c. F-32. On February 2, 2016, following an extradition hearing, the Honourable André Vincent of the Quebec Superior Court committed the applicant into custody to await the decision of the Minister of Justice to extradite him. [ 5 ] Justice Vincent denied bail.

He was of the view that the prosecution’s case against the applicant was strong, that the quantity of drugs involved was important (approximately 594 pounds of marijuana) and that the applicant deliberately took over the marijuana smuggling business of his father when he was arrested in the United States for trafficking and subsequently sentenced to a seven year term of imprisonment. [ 6 ] Justice Vincent also took into account the gravity of the offence, the circumstances surrounding its commission (which indicate a well structured organization and the aid of multiple associates) and the length of the potential imprisonment sentence which the applicant will likely have to face. [ 7 ] The applicant subsequently made submissions to the Minister of Justice opposing his extradition. [ 8 ] On March 17, 2016, pending the Minister’s decision, the applicant sought his release by this Court.

Doyon J.A. denied his release on March 18, 2016 ( 2016 QCCA 525 ), principally on the ground that his incarceration was necessary to maintain the public’s confidence in the administration of justice: [10] En l'espèce, la demande d'extradition paraît fondée. Elle a donné lieu à une ordonnance d'incarcération de la Cour supérieure et le dossier révèle une preuve directe de la perpétration des infractions.

S'il est vrai que la crédibilité du témoin "B" pourra être remise en question au procès, il reste qu'il s'agit d'une preuve directe qui permet de conclure que le dossier soutient tout à fait la demande d'extradition . [11] À n'en pas douter, l'infraction est grave, vu notamment les quantités en cause, même s'il ne s'agit pas de la drogue la plus dure. [12] Parmi les circonstances de la perpétration des infractions à prendre en compte, notons le lien avec la criminalité organisée, la durée,

la planification répétée et l'implication notable du requérant. [13] En ce qui a trait à la peine, la preuve permet de croire qu'elle se situerait vraisemblablement au-delà de cinq ou même dix ansd'emprisonnement, selon les quantités qui seront démontrées. […] [16] D'autre part, s'il est vrai que le requérant a des attaches ici et qu'il a deux enfants, j'estime que l'analyse de la confiance du publicdoit aussi se faire à la lumière d'incidents qui seraient survenus assez récemment. [17] En effet, le requérant a été accusé en juillet 2015 de plusieurs infractions qui seraient survenues entre les mois de mars et juillet decette même année, dans un contexte, plaide-t-il, de violence conjugale.

La dénonciation fait état de trois chefs de menaces (mars, juin etjuillet), voies de fait (juin), deux chefs de harcèlement (mars et juillet), et conduite dangereuse (juillet). Le requérant est toujoursprésumé innocent, certes, mais au stade de la mise en liberté, l'existence de ces accusations demeure pertinente, d'autant qu'une autreaccusation a été déposée en août lui reprochant d'avoir transgressé ses conditions de mise en liberté. Cette dernière accusation revêt,quant à moi, une importance majeure.

Un public informé, apprenant qu'on reproche au requérant de ne pas avoir respecté ses conditionsde mise en liberté moins d'un mois après s'être engagé, pourrait sérieusement s'interroger sur la manière d'administrer la justice s'il étaitnéanmoins remis en liberté à certaines autres conditions alors qu'il est sous le coup d'une ordonnance de détention en vue d'être extradépour des crimes sérieux. [18] Procédant à l'exercice de pondération prescrit dans St-Cloud, j'estime que, face aux graves accusations portées, à la force de lapreuve, à la probabilité d'extradition et aux événements qui seraient survenus en 2015, la détention est nécessaire pour ne pas miner laconfiance du public dans l'administration de la justice. [9] On June 30, 2016, the Minister of Justice ordered the applicant’s surrender to the United States. [10] On July 18, 2016, the applicant applied to this Court under

section 57 of the Extradition Act for a review of the Minister’s orderon the ground that she committed an error of law by not taking into account the presumption of innocence in her analysis of the bestinterest of his children. [11] The applicant now seeks anew his release pending the determination of this

section 57 application. He submits that new factshave arisen since the decision of Justice Doyon, specifically: (

a) an accomplice and co-accused, Colin Steward, was released from custody on May 19, 2016 pursuant to a judgment of Morissette J.A.(2016 QCCA 890); (

b) he was acquitted of the charge of breach of condition on June 28, 2016, which was the primary motive for Doyon J.A.’s decision todeny his release, and (

c) he no longer has pending cases relating to domestic violence since he pleaded guilty to the charges and received a suspended sentenceon June 28, 2016. [12] The Ontario Court of Appeal held in R. v. Daniels, (1997) (ON CA), 119 C.C.C. (3d) 413 (Ont.

C.A.), that anew original application for release can be brought where there is a material change in circumstances after the first application. [13] Since this is not a review of Doyon J.A.’s decision denying the applicant’s release, but a new consideration of the applicant’srelease within an extradition context, the decision of Doyon J.A. must be held to be correct and the main focus of these proceedings iswhether a material change in circumstances has occurred which has “overtaken” that decision. As noted by Kasirer J.A. in Kyling v.

R.,2012 QCCA 784, at par. 18: The presence of a "material change" is thus a prerequisite to the exercise of the authority of the judge called upon to release an appellantfrom custody in a further original application. This reflects the nature of the proceeding which is neither appellate in character nor a truereview of the first decision.

Accepting the first decision as correct, the second judge ruling on subsection 679(3) Cr.C. can only orderrelease if the original order has been "overtaken" by a material change in circumstances. [14] The release of Colin Stewart is not a material change in circumstances affecting the applicant. Mr. Stewart’s release fromdetention was decided on the facts relevant to his personal circumstances. Mr. Stewart’s circumstances have no direct bearing on therelease of the applicant and cannot be deemed a “material change in circumstances” with respect to the applicant. [15] Moreover, Mr.

Stewart’s personal situation differs considerably from that of the applicant. Mr. Stewart has no previousconviction, while the applicant does. Mr. Stewart lives with his common law spouse, while the applicant is estranged from his formerspouse. Mr. Stewart owns a house and an excavation business in which he is actively employed. If released, the applicant would beresiding with his mother and is unemployed. [16] Moreover, though it is alleged that Mr.

Stewart directed the applicant’s drug smuggling activities for a certain time, theextradition record also indicates that as of December 2010, the applicant began directing his own marijuana smuggling operations. Thecircumstances of the alleged offences, are not necessarily the same.

[17] Doyon J.A.’s decision not to release the applicant was largely based on the charges of uttering threats, of assault and ofharassment which were pending against him. The applicant pleaded guilty to some of these charges and was sentenced on June 28, 2016to 12 month probation. [18] Notwithstanding the presumption of innocence to which the applicant was then entitled, Doyon, J.A. took these charges intoaccount in denying the applicant’s release on the ground that his incarceration was necessary to maintain the public’s confidence in theadministration of justice.

These concerns have certainly not disappeared by the fact the applicant has now been found guilty and beensentenced for these same charges. The guilty plea rather reinforces the argument that the applicant’s release would undermine thepublic’s confidence in the administration of justice. [19] The respondent’s acquittal to the breach of condition charge results from negotiations with the Crown providing for theapplicant’s guilty plea to charges of uttering threats, of assault and of harassment in exchange for the Crown’s undertaking not to submitevidence on the breach of condition charge.

The fact nevertheless remains that the applicant was acquitted on that charge. This is a newcircumstance which has occurred since Doyon J.A.’s decision. It remains to be determined if that decision has been “overtaken” by thisnew circumstance so as to now justify the applicant’s release. [20] The breach of condition charge was an important factor taken into account in Doyon’s J.A.’s decision denying the applicant’srelease. However, this was not the sole factor on which rested that decision. Many other factors where considered.

It is useful to reviewthese factors anew to determine if the applicant’s detention is still necessary to maintain the public’s confidence in the administration ofjustice. [21] The factors which are to be taken into account to decide whether the applicant’s detention is necessary to maintain theconfidence of the public in the administration of justice include (

a) the apparent strength of the extradition case and of the prosecution ofthe underlying offence; (

b) the gravity of the offence for which the applicant is being extradited; (

c) the circumstances surrounding thecommission of the offence; and (

d) the fact that the applicant is liable, on conviction, for a potentially lengthy term of imprisonment:Divito c. Ministre de la justice (Canada), (QC CA), J.E. 2004-2034, [2004] J.Q 10729 (QL) (C.A.), par. 48; LorenzoLopez c. Canada (Procureur general) (États-Unis d’Amérique), 2010 QCCA 2403, par. 36. [22] These factors are not exhaustive and no single factor is determinative.

It is the combined effect of all the factors in the context ofall the circumstances which enables to determine if the applicant’s continued detention is necessary to maintain the public confidence inthe administration of justice. [23] Both Justice Vincent and Doyon J.A. found the extradition case to be strong. The Minister has since ordered the extradition ofthe applicant under

section 40 of the Extradition Act. The sole ground upon which the applicant challenges that decision in judicialreview is that the Minister committed an error of law by not taking into account the presumption of innocence in her analysis of the bestinterest of his children. Without deciding the matter, it is fair to conclude that the applicant’s challenge appears weak. [24] As for the strength of the prosecution of the underlying offence, again both Justice Vincent and Doyon J.A. found it strong.Witness B is expected to testify for the prosecution.

This witness has pleaded guilty in the United States to the charge of trafficking andis now a prosecution witness. Though the testimony of witness B could be challenged on credibility grounds, the extradition recordindicates that this testimony will likely secure a conviction. [25] The gravity of the offence cannot be denied.

While marijuana was involved rather than other harder drugs, drug trafficking inlarge quantities remains a serious offence in light of the numerous social impacts of drug abuse and the organized criminality required tosupply and distribute the illegal product. [26] In this case, the offence involved over five hundred pounds of marijuana, a well structured organization, numerous accomplices,heavy equipment such as boats and vehicles, and a structured supply and delivery mechanism to acquire the drugs for the purpose oftrafficking them across an international border.

Moreover, the applicant knew that his father had been arrested in the United States fortrafficking and had been convicted and sentenced to a long term of imprisonment, yet he nevertheless took over his father’s illegalactivities. [27] The applicant is facing serious prison time if convicted of the offence. In a letter dated January 13, 2016, Assistant U.S, AttorneyDouglas G.

Grover indicated that one of the applicant’s accomplices was convicted at trial using substantially the same evidence, andwas sentenced to 14 years imprisonment. [28] In addition, the applicant has now been found guilty and sentenced in Canada on charges of uttering threats, of assault and ofharassment. [29] The applicant fails to convince me that his acquittal on the charge of breach of condition in the circumstances of a negotiatedplea bargain is in itself sufficient to disregard all the other factors and circumstances which justify his continued detention. [30] Taking into account the strength of the case against the applicant, the gravity of the offence for which he is being extradited, thecircumstances surrounding the commission of the offence, the potentially lengthy term of imprisonment the he will likely face, and hisprior convictions in Canada on charges of uttering threats, of assault and of harassment, I am of the view that the applicant’s detention isstill necessary to maintain the public’s confidence in the administration of justice.

FOR THESE REASONS, THE UNDERSIGNED: [31] DENIES the applicant’s motion for release from detention and custody pending the determination of the judicial review of theMinister’s decision to order his extradition.

ROBERT M. MAINVILLE , J.C.A.