Docket: CACR2177 Valerica Cretu Applicant - v. –, 2012 SKCA 69

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 69 Date: 20120628 Between: Docket: CACR2177 Valerica Cretu Applicant - and – The Attorney General of Canada (on behalf of Romania) Respondent Before: Caldwell J. A. Counsel: Chris Veeman for the Applicant

Bruce Gibson for the Respondent Application: From: Pursuant to the Extradition Act , S.C. 1999, c. 18 Heard: June 27, 2012 Disposition: Dismissed Written Reasons: June 28, 2012 By: The Honourable Mr. Justice Caldwell Caldwell J.A. [ 1 ] Valerica Cretu applies for judicial interim release pursuant to s. 20 (

b) of the Extradition Act , S.C. 1999, c. 18, and s. 679 of the Criminal Code , R.S.C. 1985, c. C-46. Mr. Cretu is Roma and a Romanian national who has resided in Canada since his arrival here exactly eight years ago. Romania seeks Mr. Cretu’s extradition from Canada so that he might serve a three-year prison sentence imposed as a result of his conviction, in that country, for criminally negligent homicide (an offence equivalent to that of manslaughter in Canada). Romania is represented in this proceeding by the Attorney General for Canada. [ 2 ] The factual background to this application is as follows.

On October 6, 2002, Mr. Cretu, then a resident of Romania, while driving his car struck and killed a pedestrian. Mr. Cretu did not remain at the scene of the collision. He was later apprehended and he admitted consuming alcohol and striking the victim. Romania charged him with criminally negligent homicide and leaving the scene of an accident. According to Romanian court records, Mr. Cretu admitted his wrongdoing and, on December 19, 2003, he was convicted and sentenced to two years on the former offence and ten months on the latter, which sentences were to be served concurrently but as non-custodial sentences.

He also received four years’ probation. [ 3 ] Mr. Cretu appealed the decision; but, on April 29, 2004, a Romanian court increased the non-custodial portion of his sentence to three years and extended the probationary term of his sentence to five years. Then, on December 7, 2004, an appellate court converted the three-year non-custodial portion of Mr. Cretu’s sentence to three years imprisonment. In his affidavit Mr. Cretu says the conversion of his sentence to a term of imprisonment occurred after Romanian authorities had learned of his absence from that country and then re- opened his criminal case.

However, Romanian court documents (which were exhibited to Romania’s affidavit in support of its opposition to the within application) indicate Mr. Cretu had initiated, at least in part, the appeals which underlay the December 7, 2004, decision of the Romanian appellate court. [ 4 ] Upon his arrival in this country on June 27, 2004, Mr. Cretu was detained by Canadian authorities for approximately seven weeks, during which time he made a claim for refugee protection pursuant to the Immigration and Refugee Protection Act , S.C. 2001, c. 27.

In his refugee claim documents, he disclosed his criminal conviction and sentence in Romania. He was ultimately released from detention in 2004 on the strength of a $5,000 cash and surety bond. He then relocated to Saskatoon, Saskatchewan. On August 1, 2006, the Refugee Protection Division of the Immigration and Refugee Board of Canada determined Mr.

Cretu to be a “ Convention refugee” and therefore entitled to protection as a refugee under the Immigration and Refugee Protection Act , which status he continues to hold today. “ Convention ” refers the United Nations Convention Relating to the Status of Refugees (the “ Convention” ), to which Canada is a signatory. [ 5 ] In 2007, Romania initiated extradition proceedings against Mr. Cretu. He was briefly detained by Canadian police in 2007, although there is some uncertainty as to whether Canadian authorities had actually issued a warrant for his arrest at that time.

In either case, he was released and heard nothing more for five years. [ 6 ] On March 8, 2012, the Minister of Justice (Canada) (the “Minister”) issued an Authority to Proceed in relation to Mr. Cretu pursuant to s. 15 of the Extradition Act . The Authority to Proceed authorized the Attorney General of Canada to seek an order for Mr. Cretu’s committal for extradition to Romania.

On June 5, 2012, the Minister substituted the Authority to Proceed seeking an order of committal in relation to conduct which corresponds to the Criminal Code offence of manslaughter, contrary to s. 234 . [ 7 ] On May 30, 2012, the Court of Queen’s Bench for Saskatchewan issued a warrant for Mr. Cretu’s arrest. He was arrested on June 7, 2012, and a judge of the Court of Queen’s Bench ordered Mr. Cretu’s continued detention based on the primary and tertiary grounds set out in ss. 515(10) (

a) and (

c) of the Criminal Code . [ 8 ] On June 14, 2012, the Queen’s Bench judge heard a committal application in relation to Mr. Cretu and ordered him committed for extradition in respect of the offence of manslaughter. The judge also ordered that he remain in custody and he remains in custody pursuant to that order. Mr. Cretu has not appealed from the committal order.

[ 9 ] Pursuant to s. 40(1) of the Extradition Act , the Minister may, within 90 days after the date Mr. Cretu’s committal, order his surrender to Romania. However, under s. 43 of the Extradition Act , Mr. Cretu has the opportunity to make submissions to the Minister on any ground which may be relevant to the Minister’s decision regarding his surrender, but he must make these submissions within 30 days of his committal order. [ 10 ] By this application, Mr. Cretu seeks an order of this Court releasing him from custody pending the Minister’s decision on his surrender to Romania. Romania opposes the application. [ 11 ]

Section 20 of the Extradition Act provides that Mr. Cretu’s application for judicial interim release shall be determined pursuant to s. 679 of the Criminal Code , with any modifications that the circumstances require. It is important to note that s. 20 of the Extradition Act incorporates the provisions of s. 679 of the Criminal Code , as opposed to those of s. 515 of the Criminal Code .

Section 679 deals with the judicial interim release of an offender pending an appeal against conviction or sentence; whereas, s. 515 deals with the judicial interim release of an accused pending trial. The tests which must be met by an applicant under s. 679 and under s. 515 differ in

part in recognition of the fact that the jeopardy facing the applicant is more immediate in an application for judicial interim release pending an appeal against conviction or sentence than it is in an application for judicial interim release pending trial.

Furthermore, the authority of the reviewing court under s. 679 is confined to determining whether an individual should be released from custody; the Court is not empowered to delve into the validity of the proceedings against the applicant or to assess, other than in a limited way, the merits of the applicant’s appeal therefrom or response thereto. [ 12 ] Section 679(3) of the Criminal Code is straightforward. For the purposes of Mr. Cretu’s application, he must establish the following three things to obtain his release from custody pending the Minister’s decision under s. 40 of the Extradition Act : (

a) the appeal or application for leave to appeal is not frivolous [ i.e. , his submissions to the Minister are 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. [ 13 ] Turning to s. 679(3) (

a) of the Criminal Code , Mr. Cretu must establish that his grounds of appeal are not frivolous. In the context of a review by the Minister under s. 40 of the Extradition Act , this means that he must establish that his s. 43 submissions to the Minister are not frivolous. Here, the Crown concedes that Mr. Cretu has met this low threshold. I agree. He is a Convention refugee. It is not my place to look behind that status on an application of this nature. It is sufficient that Mr.

Cretu’s status as a Convention refugee affords an arguable basis for submitting to the Minister that he should not be surrendered to Romania. I also accept that Mr. Cretu’s submissions to the Minister under s. 43 of the Extradition Act represent his best opportunity to avoid his surrender to Romania. As such, although there is limited evidence before me as to the nature of the case to be met or of his intended submissions in that respect, I am, nevertheless, satisfied that Mr. Cretu has met the s. 679(3) (

a) threshold in that his submissions to the Minister will not be frivolous. [ 14 ] As Mr. Cretu has recognized in his materials, the second test under s. 679(3) presents the most difficult hurdle for him to clear.

Under s. 679(3)(b), he must establish that he will surrender himself into custody in accordance with the terms of any order for his release. [ 15 ] At the outset, Romania points to the jurisprudence under s. 20 of the Extradition Act which stands for the proposition that adherence to the principle of honouring Canada’s international obligations requires that a court, when considering an application for judicial interim release in an extradition proceeding, limit the assumption of risk of non-appearance more severely than might otherwise be acceptable in the case of domestic proceedings, see: United States of America v.

Ross (5 July 1993), Vancouver Registry No. CA017111 (C.A.), at para. 15; United States of America v. Edwards , 2010 BCCA 149 , 288 B.C.A.C. 15 at para. 18 ; and United States of America v. Ibrahim , 2012 BCCA 278 , at para. 26 , among others. [ 16 ] Mr. Cretu notes that in none of the cases cited by Romania was the applicant a Convention refugee; as is Mr. Cretu. He submits this fact, and the recent decision of the Supreme Court of Canada in Németh v.

Canada (Justice) , 2010 SCC 56 , [2010] 3 S.C.R. 281, leads one to the conclusion that Canada’s legal obligations under the Convention with respect to non-refoulement displace the limiting effect of its legal obligations under international extradition treaties on level of acceptable risk under the s. 679(3)(

b) test; or, as he more bluntly put it, when it comes to the assessment of flight-risk a Convention refugee “deserves the benefit of the doubt.” [ 17 ] I recognize Canada has international obligations under the Convention with respect to non-refoulement , which ostensibly protects a refugee ( i.e. , a victim of persecution) from being surrendered to his or her home-jurisdiction ( i.e. , usually, the persecutor). However, while Canada’s legal obligations with respect to non-refoulement are squarely before the Minister (given the nature of his pending decision under s. 40 of the Extradition Act ), Mr.

Cretu’s application before this Court is for judicial interim release and does not, in my opinion, engage those legal obligations. More directly, I fail to see how either Mr. Cretu’s release or his continued detention pending the Minister’s decision could run afoul of Canada’s international non-refoulement obligations. Put simply, Mr.

Cretu’s status as a Convention refugee and Canada’s non-refoulement obligations do not displace the well-established requirement that a court considering an application for judicial interim release in an extradition proceeding must limit the assumption of risk of non-appearance more severely than might otherwise be acceptable in the case of an application for judicial interim release brought by an offender under the Criminal Code .

It is also common sense that the risk of non-appearance in extradition cases is higher in light of the fact the extradition proceedings arise because the detainee does not wish to be returned to the extradition partner. [ 18 ] As to the merits of his application, Mr. Cretu submits that it would be “non-sensical” for him to flee prior to the Minister’s decision on surrender as this would, obviously, not stand in his favour with respect to that pending decision. And, as noted, Mr. Cretu says he recognizes that a favourable decision from the Minister represents his best opportunity to avoid surrender to Romania.

In furtherance of that recognition, Mr. Cretu submits his release will allow him to more effectively deal with Romania’s attempt to extradite him. He says he has experienced difficulties contacting his Calgary-based legal counsel from the correctional centre in Saskatoon where he is being detained which difficulties would be ameliorated by his release.

[ 19 ] As to flight-risk, Mr. Cretu points to his roots in the community. Among other things, he is in a long-term relationship and his common law spouse has agreed to act as his surety. He has been gainfully employed, by the same employer, since 2009. His employer states, in a letter exhibited to Mr. Cretu’s affidavit, that he will re-employ Mr. Cretu as soon as he is released from detention. He is well- known in the local Romanian community and a member of that community has agreed to act as a surety to assist him in obtaining his release.

He has also submitted several letters from references who aver to his good character. He states he seeks his release so that he can contribute to his family by working and helping at home. [ 20 ] As to other flight-risk factors, although he acknowledges a number of driving infractions, he points out he has no criminal convictions in Canada. Mr. Cretu says he has no passport and no Romanian identification and will undertake not to apply for a passport or other travel documentation if he is released. Mr.

Cretu does not own any real property and is of limited means, but he will put up his Mercedes Benz C230 vehicle as collateral to be forfeited if he fails to surrender to authorities. He estimates its value at $20,000. [ 21 ] Romania opposes Mr. Cretu’s release chiefly on the ground that he poses an unacceptable flight-risk if released from detention. Romania submits Mr. Cretu has failed to proffer satisfactory evidence to overcome the heightened risk of his non-appearance. As to the factors set forth by Mr. Cretu, Romania counters that Mr. Cretu’s roots in the community are minimal.

He resides with his common law partner of four years, but offers minimal information about his intended activities upon release. He owns no real property and has identified no significant activities which connect him to the jurisdiction. In my opinion, Romania’s characterisation in this respect must be qualified because it overlooks the fact that Mr. Cretu has a family and long-term employment in the jurisdiction.

However, Romania makes several compelling counterpoints with respect to the nature and assessment of the flight-risk posed in the circumstances. [ 22 ] In its oral submissions, Romania argued that the surety package proposed by Mr. Cretu is not satisfactory. As noted, the sureties proffered by Mr. Cretu are his common law spouse and a member of the Romanian community in Saskatoon. Romania submits the affidavits from these sureties do not set out any supervision plans and provide no assistance to show how either proposed surety would or could actually ensure that Mr.

Cretu abided by any conditions which might be imposed on his release. Further, as to the proposed surety from the Romanian community, there is no indication as to how long the surety has known Mr. Cretu and the surety candidly acknowledged that he received a conditional discharge in January 2012 for a domestic assault and is therefore presumably himself subject to conditions restricting his activities in the community. As to the actual security proffered, Romania insists the cash and non- cash bond amounts offered by Mr. Cretu and his sureties are, in total, insufficient. Mr.

Cretu has no real property and Romania views the potential forfeiture of his personal vehicle as being of little assurance. In sum, Romania submits there is little in Mr. Cretu’s proposed surety package which would give him an incentive to surrender himself into custody. [ 23 ] On the whole, Mr. Cretu’s submissions under s. 679(3)(

b) were well-argued and directed to the issues at hand. That said, the strongest factor in Mr. Cretu’s favour under s. 679(3)(

b) is, in my assessment, the fact that when he was released from detention in 2004 on the strength of a $5,000 cash and surety bond he appears to have complied with the terms of that release. Nevertheless, Romania correctly, in my opinion, submits Mr. Cretu has provided few substantive assurances that he will surrender himself into custody given the risk posed. [ 24 ] In that respect, Romania notes that Mr. Cretu fled Romania in 2004 in the face of what was then a sentence of community-based incarceration and with an appeal of that sentence pending. Romania submits that Mr.

Cretu’s failure to abide by the terms of a community-based sentence illustrates his inability to comply with court orders in general. Furthermore, the sentence to which he is subject in Romania is now that of three years imprisonment and his rights of appeal in that country are now, according to Romania, exhausted. In addition, Romania notes that Mr. Cretu is also subject to a court order to pay damages to the deceased victim’s estate with which he has not, but presumably could have, complied even though he has resided in Canada for the past eight years.

These facts, Romania contends, all serve to heighten the risk of Mr. Cretu’s non-compliance with the terms of any order for his release. [ 25 ] The risk of non-appearance is further heightened, in Romania’s submission, by the fact Mr. Cretu has now been committed for extradition. In this respect, see: United States of America v. Ross , at para. 12. It is also of considerable note that Mr. Cretu does not face a trial in Romania with a potential for conviction and then potential incarceration; he has already been convicted and sentenced to a term of imprisonment in that country. [ 26 ] Mr.

Cretu says that his flight from Romania was precipitated by his persecution in that state and that his Convention refugee status indicates an acceptance by Canada of the gravamen of that persecution as fact and nothing before me displaces that fact. He submits his failure to abide by the terms of his Romanian sentence cannot be taken as indicative of an inability to, or a determination not to, abide by court orders. I have considered this argument but I conclude the nature of the application before me is such that I must also accept the substance of the Romanian court documents as fact. While Mr.

Cretu invites me to look behind these documents to the gravamen of his persecution in Romania, this is not an inquiry I can make on the limited materials available to me; nor, in my view, is it appropriate for me to make such an inquiry as these are matters clearly and properly left to the Minister under s. 40 of the Extradition Act . [ 27 ] Nor do I propose to look behind Mr. Cretu’s Convention refugee status; that he holds this status is a fact as well.

However, any question as to whether he would face persecution if he is surrendered to Romania in 2012 or after is a matter for the Minister to determine under s. 40 of the Extradition Act . Furthermore, it is a fact that he failed to abide by the terms of his Romanian community- based sentence and has not satisfied the compensation judgment awarded against him. In this respect, all of Romania’s points are well- made in that these facts do serve to elevate the risk of Mr. Cretu’s non-appearance. [ 28 ] In my assessment, the elevated risk of flight in light of the committal order, Mr.

Cretu’s failure to abide by a community-based sentence, the nature of the sentence to which he is now subject in Romania, the exhaustion of his appeal rights in Romania, and his desire not to be returned to Romania are important considerations in this case. These considerations are met, to some degree, by Mr. Cretu’s compliance with his 2004 release conditions and his connections to this jurisdiction.

Nevertheless, as noted, Canada’s international obligations in extradition proceedings mean that I must limit the assumption of risk of non-appearance in this case more severely than the Court would do in an application by an offender made directly under s. 679 of the Criminal Code . In this respect, although I reject Romania’s characterisation of Mr. Cretu’s ties to the community as being “minimal”, neither are they great. Finally, Romania’s submissions as to the deficiencies in the nature and extent of the sureties proffered by Mr. Cretu are compelling and I have concluded

that the risk of non-appearance is such that it cannot be sufficiently mitigated by release conditions which, on the materials before me, he might be able to meet. [ 29 ] Put simply, Mr. Cretu has not established that he will surrender himself into custody were I to release him. I do not mean to say that the onus on him under s. 679(3)(

b) is insurmountable in this case; rather, I find that he has not met that onus on the materials before the Court at this juncture. [ 30 ] In light of my conclusion under s. 679(3)(b), there is no reason to consider the third test under s. 679(3)(c). [ 31 ] I hereby dismiss Mr. Cretu’s application for interim judicial release. DATED at the City of Regina, in the Province of Saskatchewan, this 28 th day of June, A.D. 2012. “ Caldwell J.A.” _____________________ Caldwell J.A.