R. v. Buencamino

2012 BCCA 265 R. v. Buencamino

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Buencamino, 2012 BCCA 265 Date: 20120528 Docket: CA039783 Between: Regina Respondent And Victor Buencamino Applicant Before: The Honourable Madam Justice Bennett (In Chambers) On appeal from Supreme Court of British Columbia, January 16, 2012 (R. v. Buencamino, Vancouver Registry 25963) Oral Reasons for Judgment Applicant appearing on own behalf (in custody): Counsel for the Respondent: D.J. Strachan Place and Date of Hearing: Vancouver, British Columbia May 25, 2012 Place and Date of Judgment: Vancouver, British Columbia May 28, 2012 [1] BENNETT J.A.: Mr. Buencamino has several matters before this Court. I am dealing with three applications he has brought in an appeal he filed from the decision of Gropper J. dismissing his application for habeas corpus. [2] Madam Justice Gropper's decision was rendered on January 16, 2012, and Mr. Buencamino's notice of application to extend the time to file his Notice of Appeal was filed on March 16, approximately one month out of time. Mr. Buencamino applies for an extension of time to file his appeal, for the appointment of counsel pursuant to s. 684 of the Criminal Code, R.S.C. 1985, c. C-46, and for release from jail. [3] Mr. Buencamino is the subject of extradition proceedings. A summary of those proceedings is set out in Buencamino v. Canada, 2012 BCCA 165, where I refused a bail

pending appeal application. [4] For the purpose of this application; Mr. Buencamino was arrested on June 22, 2010 on a provisional warrant issued out of the BC Supreme Court as a result of the extradition proceeding. A committal order was made on April 19, 2011, and that order has not been appealed. The Minister of Justice ordered Mr. Buencamino's surrender. This order was judicially reviewed, and Mr. Buencamino's appeal was dismissed by this Court; however, Mr. Buencamino is bringing an application to re-open the judicial review. [5] Mr. Buencamino has made numerous arguments, including that there is no valid extradition agreement between Canada and the United States, that the documents on the strength of which he is being held are unlawful, and that he was arrested because of a sealed indictment in the United States. He submits that he is entitled to be released and that habeas corpus is the proper mechanism for reviewing the lawfulness of his detention. I do not consider this application to engage the committal order. This is an application filed solely in relation to the order of Gropper J. [6] It is clear that Mr. Buencamino's habeas corpus application is directly connected to the extradition detention. [7] I will begin with the application to extend time to file the notice of application for leave to appeal. The considerations bearing upon whether to grant an extension of time to appeal are set out in R. v. Smith, [1990] B.C.J. No. 2933 (QL)(C.A.) at para 5: 1) Did the applicant have a bona fide intention to appeal before the expiration date of the appeal date?

2) Was the respondent informed either expressly or impliedly of his intention?

3) Would the respondent be unduly prejudiced by an extension of time?

4) Is there merit in the appeal in the sense that there is a reasonably arguable ground?

5) Is it in the interests of justice that the extension be granted? The weight to be attributed to any of these factors will depend on the circumstances of the case. [8] There is a letter from a lawyer who Mr. Buencamino consulted regarding this appeal, however, the consultation is well outside the time for filing the notice of appeal. There is no evidence of a bona fide intention to appeal; nor is there evidence that the respondent was informed of an intention to appeal. However, I would not refuse the extension solely on this basis in these circumstances. The respondent submits that it is prejudiced because of the additional delay this is causing in terms of Canada meeting its international obligations regarding expedited extradition. Given my conclusion with respect to the merit of this appeal, I do not need to consider this factor. As will be seen, the merit factor is a complete answer to the application. [9] Madam Justice Gropper concluded that she had no jurisdiction to consider habeas corpus because the application was completely connected to the extradition and was a collateral attack on the committal order. She observed that the Extradition Act, S.C. 1999, c. 18, is a complete code. [10] Mr. Buencamino assumes that because this is an appeal court, I have the jurisdiction to do just about anything. However, it is trite to say, that this Court has a limited jurisdiction.

The Court of Appeal is a statutory court, and has no inherent jurisdiction, unlike the Supreme Court. If the jurisdiction does not exist in a statute, then there is none. (The exception is controlling the process of the Court, which has no application here.) [11] In addition, Mr. Buencamino believes that because he is being held in a provincial prison, the Attorney General of British Columbia should be appearing on his application, not the Attorney General of Canada. Mr. Buencamino is being held under the Extradition Act, which is under the jurisdiction of the Federal government. This is not a matter for the Attorney General of British Columbia, and is a matter for the Attorney General of Canada. [12] Canada submits that this Court does not have the jurisdiction to entertain an appeal from a dismissal of a habeas corpus application when the Extradition Act is engaged. It relies on Bezeredi v. Minister of Justice, 2007 BCCA 443, (2007) 228 C.C.C. (3d) 537, where this Court held it had no jurisdiction to consider an appeal from a habeas corpus application brought within the scope of the Extradition Act. The case also considers the issue of whether the appeal was an interlocutory appeal. Mr. Buencamino's appeal is not from an interlocutory judgment. However, that does not mean that the Court has jurisdiction to hear the appeal, as there remains no common law or statutory appeal

from a habeas corpus application brought within the confines of an extradition proceeding. [13] Mr. Buencamino's appeal is a collateral attack on the correctness of the documentation that was before the committal judge. He did not appeal the committal and he cannot attempt to have the committal overturned through a habeas corpus application. In my view, there is absolutely no merit in his appeal. [14] It is not in the interests of justice to grant an extension of time to initiate in an utterly meritless appeal. Therefore, I dismiss the application to extend the time to file the notice of appeal from the order of Gropper J. [15] I will briefly address Mr. Buencamino's application for the appointment of counsel under s. 684 of the Criminal Code. [16] Section 684 permits a judge of this Court to appoint counsel to assist a person with an appeal where it is in the interests of justice and the person does not have sufficient means to obtain legal assistance. It is my understanding that the Legal Services Society has refused funding for this appeal. [17] As of March 13, 2012, Mr. Buencamino apparently paid counsel a retainer of $3,000 to assist him in bringing this appeal. (Mr. Buencamino filed in these proceedings a letter to him dated March 13, 2012, from the counsel.) Although Mr. Buencamino has been in prison since 2010, it appears he may have funds at his disposal. However, this

application does not turn on the possibility that he can fund his own legal defence. It turns on the interests of justice aspect of the appointment. As noted above, the appeal is wholly without merit. It is not in the interests of justice to require taxpayers to fund an appeal in these circumstances. [18] Finally, I will address Mr. Buencamino's application for release. I refused bail pending appeal of the extradition judicial review because Mr. Buencamino is a flight risk. The only thing that has changed is that Mr. Buencamino's appeal has been dismissed. [19] Mr. Buencamino also has an appeal outstanding in a matter in relation to the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980. He believes that this Court has the ability to release him generally so he can prepare his appeal in that matter. Firstly, if I did have such a power, I would not release him because he is, for the reasons stated in the decision noted above, a flight risk. Secondly, I have no jurisdiction to release Mr. Buencamino unless it is pursuant to a statutory authority. [20] Having refused his application to extend time for filing his notice of appeal on the habeas corpus matter, there is no authority under which I can release Mr. Buencamino. I add that, if I had granted the extension, I would not release him as the only change in his circumstances increases his flight risk and weighs in favour of his continued detention. [21] Therefore, the three applications before me are dismissed. "The Honourable Madam Justice Bennett"