France v. Ouzghar

France v. Ouzghar Collection Decisions of the Court of Appeal Date 2009-02-13 Neutral citation 2009 ONCA 137 Docket numbers C48310, M37232 Judges Doherty, David H. Subject Criminal Decision Content CITATION: France v. Ouzghar, 2009 ONCA 137 DATE: 20090213 DOCKET: M37232-C48310 COURT OF APPEAL FOR ONTARIO Doherty J.A. BETWEEN The Republic of France and The Minister of Justice and Attorney General of Canada Respondents and Abdellah Ouzghar Applicant John Norris and Brydie Bethell, for the applicant Nancy Dennison, for the respondents Heard: February 10, 2009 Doherty J.A.: [1] The applicant, a Canadian citizen, is the subject of an extradition request from the Republic of France. He has been on bail without incident since November 30, 2001. The applicant was ordered committed for surrender in January 2007 and the Minister ordered him surrendered in January 2008. An appeal from the committal order and a judicial review of the surrender order were dismissed by a unanimous decision of this court released on January 23, 2009. The applicant has applied for leave to appeal from that decision in the Supreme Court of Canada. Best estimates are that the leave application will be determined some time in the next six months. [2] The applicant applies for bail pending the proceedings in the Supreme Court of Canada. That application is governed by the criteria set out in s. 679(3) of the Criminal Code. The applicant must demonstrate that the application for leave to appeal is not frivolous, that he will surrender himself into custody in accordance with the terms of any release order, and that his detention is not necessary in the public interest. [3] The Crown submits that the applicant has failed to demonstrate that his application for leave to appeal to the Supreme Court of Canada is not frivolous. It is difficult for a judge of one court to make an informed assessment of the possibility of leave to appeal being granted by another court. Some cases are obvious candidates for leave, as for example, where the decision from which leave is sought is inconsistent with the decision of another provincial appellate court. That is not this case. [4] Leave to appeal to the Supreme Court of Canada is of necessity granted sparingly. Leave will be refused in the vast majority of cases. The appellant has raised an arguable question of law in his application, however, more than that is needed to obtain leave: see Supreme Court Act, R.S.C. 1985, c. S-26, s. 40, Sopinka, Gelowitz “The Conduct of an Appeal”, (Butterworths 1993) at pp. 165-172. [5] Mr. Norris argues that this application raises the same issue on which leave to appeal was recently granted in R. v. Fischbacher (2008), 235 C.C.C. (3d) 45 (Ont. C.A. ). This court’s decision in this case does refer to a line of authority relied on in Fischbacher, supra. There are similarities in the legal issue raised on this appeal and the issue decided in Fischbacher. There are also significant differences in the two cases. The fact that leave to appeal has been granted in Fischbacher may give Mr. Norris a “leg up” on his application for leave to appeal in this case. I cannot say, however, how strong that “leg” may be. [6] I find myself in this position. I cannot say that the applicant has no realistic chance of obtaining leave to appeal. However, beyond that, I cannot quantify his chances of obtaining leave to appeal. I propose to address the other two criteria relevant to bail and then to return to the argument that the application is not frivolous. [7] The respondent does not argue that the applicant has failed to demonstrate that he will surrender into custody in accordance with the terms of any release order. He is a Canadian citizen and has been on bail for seven and a half years. He has complied with the terms of his bail, including the various surrender orders. [8] The respondent does submit that the applicant has failed to demonstrate that his detention is not necessary in the public interest. The respondent argues that the applicant has been ordered surrendered in connection with terrorism-related offences. She argues that Canada , as a responsible member of the international community, must be seen as co-operating fully with other countries who seek to root out and prosecute those involved in terrorist activities. As I understand this argument, the respondent submits that the applicant’s continued release on bail would somehow suggest that Canada does not take these matters as seriously as it should. Counsel relies on the well known passages from the majority judgment of LaForest J. in United States of America v. Cotroni, [1989] 1 S.C.R. 1469 at paras. 28-29 in which he stressed the importance of Canada ’s responsibilities to co-operate in the effective prosecution of international crime in an ever shrinking world. [9] I accept the validity of the comment made in Cotroni. That observation seems to me, however, to speak more to the need for an effective and expeditious extradition process than to the question of whether the target of that process should be in or out of custody while the process runs its course. [10] There is nothing in the record filed on this application, apart from the allegations made by the French authorities, to suggest that the applicant, if released, will commit crimes in Canada or elsewhere, or otherwise engage in any unlawful or dangerous activity. The applicant’s track record during the many years that he has been on bail suggests to the contrary. [11] Nor, as with a person who has been through the domestic criminal process, is the applicant under any sentence. No court in Canada has determined that the applicant has committed an offence and should be incarcerated: see Schreiber v. Germany ( Federal Republic) (2007), ONCA 80 at paras. 9-10 (per Lang J.A. in chambers). The conviction entered against the applicant in France was entered in his absence and, apparently, without notice to him. According to the material, the authorities in France agree that the conviction will be set aside upon the applicant’s return to France and he will be entitled to a trial on the merits. [12] In addressing the public interest, it is important to understand the purpose for which the applicant is in custody in Canada . The only reason Canada has any cause to place him in custody is to facilitate his surrender to France . The applicant will not be surrendered while his application for leave to appeal to the Supreme Court of Canada is outstanding. It cannot be said to be in the public interest to hold the applicant in custody to facilitate his surrender when his surrender will not take place before the application for leave is decided. Absent some substantive cause specific to the applicant to justify detention, the public interest considered in the context of an extradition proceeding is not served by incarceration that does not facilitate the applicant’s surrender to the requesting country. [13] Having concluded that the applicant will surrender himself as required and that his detention is not necessary in the public interest, I return to the question of whether his application for leave to appeal is “not frivolous”. Where the applicant has met the substantive considerations relating to bail by demonstrating that he is not a flight risk and that the public interest does not require his incarceration, recognition of the legitimate liberty interests at stake justifies setting a low bar when determining whether the applicant has shown that his application for leave to appeal is not frivolous. I do not think that an applicant who has shown himself otherwise entitled to bail should be held in custody based on my speculative and somewhat uninformed assessment of the likelihood of the applicant obtaining leave to appeal. [14] The application raises a viable question of law and there is some basis to think that the legal question could warrant leave to appeal to the Supreme Court of Canada. That is enough to satisfy me that this application is “not frivolous”. I stress, however, that where legitimate public interest concerns are raised in connection with the applicant’s release, a harder look at the merits of the application will be justified in the context of considering the public interest criterion. [15] The applicant is released on terms and conditions of the draft order provided to me by counsel. I have signed that order. RELEASED: “DD” “FEB 13 2009” “Doherty J.A.”