Docket: CACR2177 Valerica Cretu Applicant - v. –, 2012 SKCA 77

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 77 Date: 20120815 Between: Docket: CACR2177 Valerica Cretu Applicant - and – The Attorney General of Canada (on behalf of Romania) Respondent Before: Vancise J.A. in Chambers Counsel: Chris Veeman for the Applicant

Bruce Gibson for the Respondent Application: From: Pursuant to the Extradition Act, S.C. 1999, c. 18 Heard: August 10, 2012 Disposition: Dismissed Written Reasons: August 15, 2012 By: The Honourable Mr. Justice Vancise Vancise J.A. I. Introduction [1] Mr. Valerica Cretu, the applicant, is a Romanian national who applies for the second time for judicial interim release pursuant tosubsection 20(

c) of The Extradition Act, S.C. 1999, c. 18 (the “Act”) which incorporates by reference s. 679 of the Canadian CriminalCode, R.S.C. 1985, c. C-46. [2] It is common ground that the jurisdiction for a judge to hear a second application for judicial interim release pursuant to s. 679 isdependent upon there being a material change in circumstances. [3] This is a fresh application for judicial interim release and not a review of the previous decision denying judicial interim release withthe result that the parties must accept that the first decision was correct. R. v.

Baltovich (2000), (ON CA), 144 C.C.C.(3d) 233 (Ont. C.A.). [4] For the reasons that follow, I find that there has been no material change in circumstances with the result that I do not havejurisdiction to order judicial interim release. II. Facts [5] Mr. Cretu, the applicant, is a Romanian national who entered Canada in 2004. Prior to coming to Canada he was convicted ofessentially impaired driving causing death in Romania. He was given a two year conditional sentence of imprisonment with four yearsprobation.

That sentence was appealed by a relative of the victim and the conditional sentence was increased to three years with a longerperiod of probation. [6] While subject to the conditional sentence of imprisonment, the applicant fled Romania as a stowaway on a ship and arrived inCanada in June 2004. He was detained on arrival in Toronto and immediately claimed refugee protection. He disclosed the fact of hiscriminal conviction in Romania at this time. He was detained in Toronto for approximately seven weeks and released on a cash bond of$5,000 and a surety.

The applicant relocated to Saskatoon where he continued his refugee claim and was essentially declared aConvention Refugee in 2006. [7] As a result of his flight from Romania his conditional sentence of imprisonment was reopened and the sentencing increased inabsentia to a three year prison term.

[ 8 ] Romania initiated extradition proceedings in 2007. The applicant was initially detained by the police on a warrant resulting from the extradition proceedings but released some days later. On June 7, 2012, five years later, he was arrested pursuant to a Warrant for Arrest. Mr. Justice Danyliuk ordered his continued detention and on June 14, 2012, ordered the committal for extradition of the applicant pursuant to s. 29(1) (

a) of the Extradition Act and ordered his continued detention. [ 9 ] The applicant applied for judicial interim release pending the decision of the Minister of Justice’s decision on surrender pursuant to s. 40 of the Extradition Act . The applicant did not appeal the June 14, 2012 order of committal, but retained counsel to make submissions to the Minister of Justice pursuant to s. 43 of the Extradition Act . [ 10 ] Mr. Justice Caldwell dismissed the applicant’s first application for judicial interim release ( 2012 SKCA 69 ). Mr.

Justice Caldwell found that the applicant had not established that he would surrender himself into custody if he were released and denied the application for judicial interim release. [ 11 ] The applicant has now filed his submission to the Minister of Justice pursuant to s. 43 of the Act . Subsequent to the initial decision for judicial interim release, that submission was filed and sets out the grounds he considers relevant to the Minister’s decision regarding surrender.

That submission was required to be made within 30 days of the committal order. [ 12 ] The Minister is required by s. 40(1) of the Act to personally order that the person be surrendered to the extradition partner, in this case Romania, within 90 days. That period was extended by 60 days pursuant to subsection 40(5) of the Act which permits the Minister to extend the time when the person sought for extradition has made submissions with respect to the surrender. III.

Analysis [ 13 ] This is a second application for judicial interim release and as such not a review of the initial decision refusing judicial interim release. It is a fresh application pursuant to s. 679 of the Code . The applicant has the onus to establish that there has been a material change in circumstances since the first application.

In dealing with the second application for judicial interim release, the parties, both the applicant and the respondent, and the reviewing judge accept that, on the basis of the material before the initial judge, that his decision was correct. [ 14 ] That means even if the appellant establishes a material change in circumstances, the threshold for jurisdiction, the first judge’s reasons, will be of assistance in determining whether the case is a proper one for release. See R. v. Baltovich , supra . IV.

Jurisdiction [ 15 ] The applicant must establish that there are material changes in the factual circumstances that could have resulted in a different result had those changed circumstances been considered by the first judge. The applicant contends that there has been a material change in circumstances since the last application. He relies on the following: a. the applicant has now filed his submissions with the Minister of Justice in relation to the Minister’s decision to surrender him to Romania.

That application was not before the first judge and the applicant argues that this substantive application detailing his request for a refusal of an order to be extradited supports his contention that he will turn himself in in order to hear the Minister’s decision. He argues this is so because his best route for remaining in Canada rests in convincing the Minister of Justice that, as he has argued in his submissions, as a Convention Refugee he should not be extradited. b.

The time for considering the question of his extradition by the Minister has been extended by 60 days with the result that the time he will be required to spend in detention has been increased substantially. He will spend approximately four and a half months in detention if no decision is reached until the near the end of the time limit as extended. c. The applicant now submitted a release plan, something which was not submitted in the first application (see paras. 21 and 22 of Mr. Justice Caldwell’s decision).

The release plan is designed to ensure supervision over the applicant during his release which given the proposed condition amounts to virtual house arrest. He proposes a curfew from 6:00 p.m. to 7:00 a.m. and that he only be allowed out of his residence from 7:00 a.m. to 6:00 p.m. to work and for very limited circumstances such as medical assistance. He has arranged employment with Al-Ro Acrylic Stucco Ltd. and because he also proposes to surrender his driver’s licence, he has made arrangements with his employer to pick him up in the morning and deliver him home at night after work.

The applicant has also made arrangements with Jentec Inc., the provider of electronic monitoring services to the Province of Saskatchewan, to monitor his whereabouts to ensure that he complies with his curfew and to confirm his comings and goings from his residence. The applicant will assume and pay all costs of such electronic monitoring which are estimated to be approximately $6,500 from the day of his proposed release until November 12, 2012, the date at which the Minister must render his decision.

The applicant submits that this additional level of surveillance is a material change from what he proposed on the

initial application because on that application there was essentially no nighttime supervision given that the proposed surety, his partner, worked nights. He has been in a long-term relationship with her and they have lived together for three years. d. The applicant has arranged for additional and more substantial cash surety in the amount of $10,000 to secure his attendance and surrender to the authorities. [ 16 ] The Attorney General of Canada for Romania (hereinafter “Romania”) argues that these changes are not material as contemplated by Baltovich , supra.

Romania contends that the fact that the applicant has filed submissions with the Minister is not a material change. Even though the submission had not been filed at the first application, it was a step in the proceedings which was contemplated and which would follow and did follow in the ordinary course. [ 17 ] The fact that there is an arguable case with respect to the applicant’s refugee status is not a new issue. It was a fact accepted by Mr. Justice Caldwell and indeed referred to by him on a number of occasions in his reasons. (See paras. 13, 16, 17, 26 and 27).

In the respondent’s submission nothing has changed and it cannot be argued that the submission provides additional confidence that the applicant will turn himself in to custody in order to hear the Minister’s decision. The fact that there is an arguable case is not a new issue. [ 18 ] Romania submits that the 60 day extension requested by the Minister is requested in virtually every case in which submissions are filed.

It was something which was a possibility and contemplated at the time of the initial hearing and does not represent a material change. [ 19 ] The proposed release plan does not represent a material change. It is simply an augmentation of the original proposal and does not offer the level of confidence that the applicant will surrender himself to the authorities at the appropriate time. [ 20 ] Romania contends that the cash surety in the amount of $10,000 is not a significant change from what was proposed on the initial application. V. Analysis [ 21 ] As noted in Kyling v.

R. , 2012 QCCA 784 at para. 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 appellant from custody in a further original application. This reflects the nature of the proceeding which is neither appellate in character nor a true review of the first decision. Accepting the first decision as correct, the second judge ruling on subsection 679(3) Cr.C. can only order release if the original order has been "overtaken" by a material change in circumstances.

In cases where no such material change exists, such as D'Agostino [1998 ABCA 202], a chambers judge should dismiss the application because, as O'Leary, J.A. wrote "a pre-condition to my jurisdiction has not been met".8 This approach has guided the jurisprudence of this Court in like circumstances. [ 22 ] Mr. Justice Rosenberg in Baltovich stated that: [6] . . . A material change in circumstances, for this purpose, would require additional information that could lead the judge hearing the application to alter the assessment of one or more of the statutory factors set out in s. 679(3), namely, (

a) whether the appeal is frivolous; (

b) whether the applicant will surrender into custody in accordance with the terms of the release order; and (

c) whether the applicant's detention is necessary in the public interest. If there is a material change in circumstances, the judge must then consider all of the statutory grounds and must be satisfied that the applicant has met the onus in s. 679(3). [ 23 ] Thus, the question is, are the changes relied on by the applicant capable either individually or collectively, of amounting to a material change in circumstances. I will deal with those issues in order.

a) Submission to the Minister [ 24 ] The submission to the Minister pursuant to s. 43 of the Act considering his status as a refugee is the very decision that the Minister must make in accordance with established case law. The applicant contends that he cannot be extradited because of his status as a Convention Refugee. In this case, that proposition is not so simple by reason of

Article 1.F(

b) of the United Nations Convention Relating to the Status of Refugees. The fact that the applicant has been convicted of a serious criminal offence in Romania the principle of non-refoulement may not apply. This is a fact which was before Mr. Justice Caldwell (see para. 17). In other words, the applicant’s refugee status and Canada’s obligations do not displace the requirements of the Court to limit the assumption of risk of nonappearance.

Indeed, if anything, the risk is higher than in an application for interim judicial release under the Code in a purely domestic matter. Thus, the fact that the submission has been made while a factual change is not a material change.

b) Extension of Time The extension of time requested by the Minister on matters of this kind is routine and cannot be regarded as a material change.

c) Electronic Monitoring [25] The proposal to have the applicant in effect confined to house arrest is a change from the original application in which there waseffectively no release plan to effectively monitor the applicant’s whereabouts. Now he has an offer of daytime employment and submitsthat his off hours can be controlled by a curfew requiring him to be in his residence from 6:00 p.m. until 7:00 a.m. the following morningand his detention will be monitored by electronic monitoring.

This alleviates the problem of his surety, his spouse, to be responsible forhis monitoring during the evening, something that is not possible given the fact that she works nights. [26] The question remains whether the additional measures amount to a material change. The respondent argues that they do notbecause they do not eliminate or even mitigate the flight risk. Electronic monitoring does not track the subject’s whereabouts or evenindicate if he has fled. It just alerts a monitoring service of the fact that he has failed to enter or has left his residence at a time other thanthat permitted.

The use of electronic monitoring in extradition proceedings has been commented on on a number of occasions, notably byMr. Justice Trotter of the Ontario Superior Court in United States of America v. Ugoh, 2011 ONSC 1810, 269 C.C.C. (3d) 380 at paras.150-51. Mr. Justice Trotter noted, as I have on a number of occasions, that electronic monitoring cannot prevent absconding, it merelyhelps notify the authorities. See also: United States of America v. Pannell, (ON CA), [2004] O.J.

No. 5715, affirmed(2005), 193 C.C.C. (3d) 414. [27] While the addition of electronic monitoring is an improvement, it does not, in my opinion, adequately address the lack of a personalstake in the release plan. I note parenthetically that electronic monitoring is a useful tool in securing compliance with conditionalsentences or perhaps in probation matters where the concern simply involves restricting the offender’s movements, but that is a fardifferent matter from concern about an individual fleeing the jurisdiction. Again, while this is change, I am not satisfied that it is amaterial change.

d) Additional Security [28] Finally, the applicant has proposed a cash bond as security to secure his surrender by his spouse in the amount of $10,000 insubstitution for the proposed security on the initial application. That security was $5,000 cash from the applicant and $10,000 non-cash(which represented his automobile); $4,500 non-cash from his spouse and $10,000 non-cash from an acquaintance in the Romaniancommunity in Saskatoon. [29] In this application the applicant’s spouse has agreed to pledge $10,000 cash and to also put up the money for the electronicmonitoring which would total approximately $6,500.

I note that no explanation is forthcoming regarding the fact that a member of theRomanian community one Dorin Vasile Drimus has withdrawn as a surety on this application. [30] In brief, there is nothing in this proposed amendment to the recognizance which would adequately deal with the concerns regardingthe flight risk and ensure that the applicant will surrender. [31] After considering all of the submissions made and material filed, concerning the proposed changes to the application, I am unableto conclude that they constitute a material change in circumstances as contemplated by the jurisprudence with the result that I have nojurisdiction to consider the application for interim judicial release pursuant to s. 679 of the Code. [32] The application is therefore dismissed.

DATED at the City of Regina, in the Province of Saskatchewan, this 15th day of August, A.D. 2012.

“Vancise J.A.” _______________________ Vancise J.A.