U.S.A. v. Martin

2012 BCSC 2214 U.S.A. v. Martin IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: U.S.A. v. Martin, 2012 BCSC 2214 Date: 20120522 Docket: 26053 Registry: Vancouver In the Matter of the Extradition Act, S.C. 1999, c. 18 as amended and In the Matter of the Attorney General of Canada on behalf of the United States of America and James Gregory Cameron, Sean William Doak & Colin Hugh Martin Before: The Honourable Mr. Justice Silverman Oral Ruling on Application for Judicial Interim Release (Re: Colin Hugh Martin) Counsel for the Attorney General of Canada on behalf of the Requesting State: J. Gibb-Carsley Counsel for the Person Sought, Colin Martin: G. DelBigio, Q.C. Place and Date of Hearing: Vancouver, B.C. May 22, 2012 Place and Date of Judgment: Vancouver, B.C. May 22, 2012 [1] THE COURT: Mr. Martin appears before me seeking his judicial interim release with respect to this extradition matter. [2] He is before the court, sought by the United States of America to face charges which would be in Canada the equivalent of conspiracy to traffic in various controlled substances. I am told that those substances in the Record of Proceedings include allegations of marijuana, cocaine, and MDMA. The allegations are dated between November of 2007 and November of 2009. [3] This is a reverse onus situation for two reasons: one is because the nature of the charges in the United States when compared to similar charges in Canada would carry a maximum of life imprisonment; and second, is because they were allegedly committed while Mr. Martin was before the courts of this country on bail. [4] The Crown is seeking his detention on all three of the s. 515 grounds, that is, the primary ground, the secondary ground and the tertiary ground. From the Crown's point of view, the most important single factor affecting all of those grounds is the fact that he was on bail and I will be going into that in some detail. [5] From the defence point of view, the most important single consideration is that a co-accused, one Sean Doak, also before the courts of this country for extradition to the United States and with similar considerations as those which are before me for Mr. Martin, has been released on bail in the amount of $200,000, with two sureties and a number of conditions. [6] There are two other accused, as well, who are sought for extradition. They are considered to be lesser players in the conspiracy. One has been released on $10,000, and the other is before the courts in Ontario where a decision has been reserved with respect to his bail. [7] The allegations, as they always come before the courts in these extradition matters, are contained in the Record of Proceedings and in that sense are somewhat general and lacking in detail, but I have no difficulty concluding that they at least involve this much: a long period of time; a number of potential transactions - I am talking about the conspiracy as a whole involving a number of people; large quantities of drugs and money; a suggestion of some firearms, as well, used in trade; sophistication involving codes, Blackberries, even helicopters; a discussion and arguably attempts to purchase land in the United States for the landing of a helicopter; money in the high end of hundreds of thousands of dollars and arguably into the millions over the two-year period; quantities of drugs, again talking just about the MDA, hundreds of thousands of pills on a number of occasions. [8] The two men who I have referred to and will be referring to throughout these reasons, Mr. Martin before the court and Mr. Doak, the one released on $200,000 with two sureties, are considered to be at or near the top of the hierarchy of this organization. It is not necessary to go into any more details than that for the purpose of this hearing. I am satisfied that the two of them are roughly equivalent, in their status in this organization, and that if there is any difference between them it is not a large enough difference to have any effect on this proceeding. [9] The consideration of this matter requires an analysis of Mr. Martin's record, an analysis of why he was on bail and what happened during that period, and a comparison of those factors, as well as other factors, to the situation of Mr. Doak. [10] Mr. Martin's record is as follows: · In 1992 he was convicted of production of marijuana, one day in jail and a $1,500 fine. · 1996, possession of a controlled substance, $250 fine. · 2006 - and this is the offence that I am about to relate for which he was actually on bail at the time of the current offence - 2006, conspiracy to export marijuana, conspiracy to traffic in marijuana, possession of proceeds of crime and money laundering, different time periods for each of those, but a total of two and a half years in jail and 12 months probation, which was originally set on June 6, 2007. However, there was a delay before that sentence was served, during which for the most part he remained on bail. [11] I am now going to turn to Mr. Doak's record, which says simply this, that he has one conviction before the current matter before the courts that stems from 2007. It was a conspiracy charge involving drugs, for which he was sentenced to seven years imprisonment. He was at liberty on parole with respect to that matter when the offences before the court were allegedly committed. [12] Going back to the chronology involving Mr. Martin, the 2006 convictions stem from charges prior to his arrest in August of 1999. The convictions were imposed by a jury. He appealed his conviction and was granted bail in the Court of Appeal. His appeal was heard on June 14 and 15, 2010. The decision was reserved. [13] Court of Appeal bail was granted to him on June 11, 2007. It was in the amount of $25,000 and terms; no sureties I am told. He remained on bail from that time until July 7, 2010. It is during that time period, while he was on bail from the Court of Appeal, that the current allegations were allegedly committed. The hearing of his appeal was June 14 and 15, 2010, decision reserved. [14] On July 6, 2010 − and I will be coming back to this - he was arrested for a different drug offence than the one before the court, this was also while he was on bail with respect to the Court of Appeal matter, a grow-op involving 3,299 marijuana plants, 458-and-a-half grams of packaged marijuana bud. [15] The police released him immediately on a recognizance. It was a term of that recognizance -- or it may have been from the Court of Appeal, pardon me. There was a term with respect to one of his bails at that point that he report to a bail supervisor by 4:00 p.m. the next day, which he failed to do. [16] A warrant was issued for his arrest, and he was taken into custody on July 9, 2010. He sought his release again in the Court of Appeal on August 10, 2010, and his bail was refused by Mr. Justice Chiasson. November 15, 2010, his conviction appeal was dismissed and he commenced serving the two-and-a-half-year sentence that I previously referred to. That ordinarily would have run to December 31, 2012. He qualified and was eligible to apply for parole at the beginning of 2011, and sought bail with respect to the grow-op matter on January 14, 2011. Consequently, on January 14, 2011, he sought bail with respect to the previously mentioned grow-op matter of July 6, 2010. I am told that he was offering $100,000 and that Judge Brown said, either in that decision or later in Doak's decision, that that simply was not sufficient. [17] He remained in custody, continuing to serve his sentence without parole until November 24, 2011, when he sought a bail review in front of Madam Justice Hyslop. She released him on $30,000, with a surety and a variety of stringent terms. I am told that there was no suggestion that Judge Brown had made an error, but rather that circumstances had changed, largely personal circumstances concerning Mr. Martin and his ability to abide by terms if released and the effect, the positive effect, that being in prison had upon him. [18] He was released on December 12, 2011. He remained out of custody without -- that is on the bail granted by Madam Justice Hyslop without any difficulties or new charges until his arrest with respect to this extradition matter under the Extradition Act on April 17, 2012. [19] As I have already indicated, the charges for which he has been arrested predate the grow-op situation, so there is no suggestion that he has committed a new offence or new offences since being released by Madam Justice Hyslop. [20] The two-and-a-half-year sentence is still scheduled to end on December 31, 2012. [21] There are a number of judgments that have dealt with Mr. Martin's bail over the last several years. I have already referred to them. August 10, 2010, was Mr. Justice Chiasson's in the B.C. Court of Appeal. He detained Mr. Martin. That matter, of course, was one where Mr. Martin had already been convicted of the offence which was before the Court of Appeal. It was awaiting his appeal and he had been released to await that. It was during that time period that the grow-op had arisen as an allegation, as well as the breach the following day by failure to attend at his bail supervisors. I am told and I accept that Mr. Justice Chiasson was aware that there were charges apparently laid with respect to a drug matter in the United States, but there were no details to provide and certainly no formal request had been made. [22] January 27, 2011, was Madam Justice Brown's detention order with respect to that same grow-op, and she had also, I am told, been aware of the United States charges, although there was nothing in the way of detail and no formal request. [23] Madam Justice Hyslop's review on November 24, 2011, when she released Mr. Martin on the marijuana charges on $30,000, was also aware, I am told, of the United States charges, but again no details and no formal request and nothing formally before the court. [24] The other judgment of significance, unfortunately for which there is no transcript available, is the release of Mr. Doak, who I previously referred to, on $200,000 and two sureties bail by Madam Justice Brown on May 9, 2012. [25] The Crown says all three grounds should result in his detention. I will deal first with the secondary grounds. [26] While Mr. Martin was awaiting a decision in the Court of Appeal, he had been released on bail. He is now before the court with two outstanding matters, which allegedly occurred during that time period while awaiting Court of Appeal bail. One of them is the grow-op from July 6, 2010, and the other is the one which is before the court now for which the United States seeks his extradition, allegedly committed between November 2007 and November 2009. [27] The defence argues that this situation is no different than that of Mr. Doak, who arguably has while a lesser record in terms of numbers of convictions, at least as significant a record in terms of quality of convictions, seven years for his drug conspiracy offence and a parole violator, as well, which I accept. After he was released, the current allegations before the court arose while Mr. Doak was on parole. Therefore how is it different? If the court is to avoid disparity in matters of this kind the result should be similar. [28] The defence also argues that while it is true that there are two different and unrelated sets of charges before the court, committed allegedly while Mr. Martin was on bail, the second of those was not committed after he had been released on the first. In other words, after he was released by Madam Justice Hyslop with respect to the grow-op, there are no new offences. The current ones before the court predate the grow-op situation. [29] The defence argues that I can craft conditions suitable to enable Mr. Martin's release, just as was done by or for Mr. Doak, and in fact it is my responsibility to do that in appropriate cases. They also refer to a number of materials with respect to Mr. Martin's personal circumstances which suggest that he can be properly supervised in the community, just as Madam Justice Hyslop found, and that he is certainly as safe a risk as Mr. Doak. I certainly acknowledge that Mr. Martin's personal circumstances, based on the materials that have been presented to me, would allow for that in many situations, but here there is a difference between Mr. Martin and Mr. Doak and it is this: [30] Mr. Martin has two sets of significant charges while on bail with respect to a third -- the first in time, but a third set of significant charges before the courts. While on bail he is alleged to have been involved in a large grow operation and a large conspiracy to traffic, and that is what makes his situation different from Mr. Doak, who at worst is alleged to be involved in one matter, not two, while on parole. [31] This is a reverse onus situation and I am not satisfied that onus has been met. Indeed, I am satisfied it has not been met. That leads me to the conclusion, Mr. Martin, that your detention is necessary for the protection or safety of the public, having regard to all the circumstances, including the substantial likelihood that you will, if released from custody, commit a further criminal offence or offences. That is my conclusion with respect to the secondary ground. It is not necessary for me to deal with the primary or the tertiary grounds, and I order Mr. Martin to be detained. "Silverman J." _______________________________ The Honourable Mr. Justice Silverman