United States of America v. Sriskandarajah

United States of America v. Sriskandarajah Collection Decisions of the Court of Appeal Date 2011-01-06 Neutral citation 2011 ONCA 4 Docket numbers C50139, C50139/C51418, C50140, C50140/C51419, C51418, C51419, M39541, M39543 Judges Cronk, Eleanore Ann Subject Criminal Decision Content CITATION: United States of America v. Sriskandarajah, 2011 ONCA 4 DATE: 20110106 DOCKET: M39543 (C50140/C51419) and M39541 (C50139/C51418) COURT OF APPEAL FOR ONTARIO Cronk J.A. (In Chambers) BETWEEN DOCKET: M39543 (C50140/C51419) The United States of America and Minister of Justice and Attorney General of Canada Respondents and Suresh Sriskandarajah Applicant AND BETWEEN DOCKET: M39541 (C50139/C51418) The United States of America and Minister of Justice and Attorney General of Canada Respondents and Piratheepan Nadarajah Applicant John Norris, for the applicant Suresh Sriskandarajah Breese Davies, for the applicant Piratheepan Nadarajah Nancy Dennison, for the respondent Heard: December 23, 2010 ENDORSEMENT [1] The applicants, Suresh Sriskandarajah and Piratheepan Nadarajah, seek bail pending their applications for leave to appeal to the Supreme Court of Canada from this court’s dismissal of their appeals from their committals to stand trial on charges in the United States and their applications for judicial review of the Minister of Justice’s decisions to order their surrender to the United States: see R. v. Sriskandarajah, 2010 ONCA 857 and R. v. Nadarajah, 2010 ONCA 859 (the “December decisions”). [2] The test for bail pending proceedings in the Supreme Court of Canada is governed by s. 679(3) of the Criminal Code. Under that test, a judge of this court may grant bail pending an application for leave to appeal to the Supreme Court if the applicant establishes three things: (1) the application for leave to appeal is not frivolous; (2) the applicant will surrender into custody in accordance with the terms of any release order; and (3) the applicant’s detention is not necessary in the public interest. [3] On these applications, the Crown argues that neither applicant has met his onus in respect of any criteria under s. 679(3), especially the public interest ground. (1) Merits of the Leave to Appeal Applications [4] As the Crown points out, the applicants do not address in their joint factum the merits of their applications for leave to appeal from this court’s orders dismissing their appeals from the committal and surrender orders. Instead, their submissions as to the merits of their applications for leave to appeal to the Supreme Court are focused on their attack – both in the proceedings below and before this court – on the constitutionality of the definition of “terrorist activity” set out in s. 83.01 of the anti-terrorism provisions of the Criminal Code. On their appeals to this court, the applicants argued that the definition of “terrorist activity” was unconstitutionally overbroad and that the definition of that term, and its application throughout the anti-terrorism provisions of the Criminal Code, had the effect of violating the Charter of Rights and Freedoms, particularly, the protected right of freedom of expression. This court rejected both arguments, holding that the definition of “terrorist activity” was constitutionally sound. [5] The Crown acknowledges that the standard for determining whether an application for leave to appeal is frivolous is a low one. This court has held that an appeal will not be considered frivolous if an arguable ground of appeal is raised: see for example, R. v. Huang (1996), 50 C.R. (4th) 292. This principle also applies to applications for bail pending leave to appeal to the Supreme Court. As Doherty J.A. explained in France (Republic) v. Ouzghar (2009), 95 O.R. (3d) 187 (C.A.), at para. 13: 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. [6] The allegations against the applicants and the evidence in support of those allegations are described in the December decisions and need not be repeated. This court’s reasons for rejecting the applicants’ constitutional challenge are also set out in detail in the December decisions. Similarly, I see no need to recount those reasons for the purpose of the disposition of these applications. [7] Suffice to say that I accept the applicants’ contention that their attack on the constitutionality of the definition of “terrorist activity” in the Code, at least as it relates to s. 2(b) of the Charter, raises an arguable issue of law. I did not understand the Crown to vigorously disagree. I am satisfied that the applicants have met the low bar of demonstrating that their applications for leave to appeal are not frivolous. (2) Alleged Flight Risks [8] I turn next to the Crown’s contention that the applicants pose significant flight risks. [9] It is true, as the Crown submits, that the incentive to flee increases at each stage of the extradition process and that the applicants are nearing the end of that process. It is also true that the applicants face significant jail terms in the United States should they be extradited to and convicted in that jurisdiction. (Counsel advised that in Mr. Nadarajah’s case, a mandatory minimum sentence of 25 years imprisonment applies, while Mr. Sriskandarajah, if convicted, could face a sentence of up to 20 years imprisonment.) [10] However, the applicants have faced that jeopardy since the beginning of the extradition process. They have continued to surrender into custody as required at each stage of that process. They have each been on bail for approximately four years without incident or breach. Mr. Nadarajah has been on bail with $735,000 pledged by his sureties, while Mr. Sriskandarajah has been on bail with $445,000 pledged by his sureties. It is proposed that their current sureties, with minor variations and with the same security, will continue. [11] It is also noteworthy that, in contrast to the facts in some of the cases relied on by the Crown in support of its position that the applicants pose a flight risk, there is no evidence before me that either applicant has a history of international or cross-border travel or mobility. There is no evidence before me to suggest that either applicant has the will, or for that matter, the means, to flee. [12] Perhaps more importantly, neither applicant can be surrendered until his pending application for leave to appeal to the Supreme Court has been determined. Each applicant reaches the “end of the road” only when all appeal routes are exhausted. That has not yet occurred. [13] Therefore, I am satisfied that the flight risk criterion does not compel the denial of bail. (3) Detention in the Public Interest [14] Finally, the Crown argues that the applicants have failed to demonstrate that their continued detention is not required in the public interest. The Crown urges the court to consider the factors contemplated by s. 515(10)(c) of the Criminal Code (the strength of the case against the applicants, the gravity of their alleged offences, the circumstances surrounding the commission of the offences, and the fact that they are liable on conviction for lengthy terms of imprisonment) to conclude that bail should be denied in the public interest in order to maintain public confidence in the administration of justice. [15] It is unnecessary for the disposition of these applications to determine the precise interplay, if any, between ss. 679(3) and 515(10)(c) of the Criminal Code. In any event, I regard the factors enunciated by the Crown as relevant to the public interest criterion. [16] The crimes alleged against the applicants are grave and the circumstances surrounding their alleged commission are very serious. Further, in my view, the cases against the applicants are strong. Moreover, as I have said, the applicants face significant terms of imprisonment should they be convicted in the United States of the crimes alleged. But the applicants have not yet been convicted of any crime. Nor has any sentence been imposed on them. The presumption of innocence therefore remains fully engaged. [17] Further, there is nothing on this record to suggest that either applicant, if released on bail, will commit crimes in Canada or elsewhere. They have not done so during the four years that they have each been on bail. [18] To repeat, I do not regard either applicant as a materially greater flight risk than they were prior to this court’s release of the December decisions. And, their leave to appeal applications cannot be said to be frivolous, in the sense of lacking any merit. [19] Finally, the nature of the crimes alleged against the applicants, while very serious, cannot, by itself, justify the denial of bail: see R. v. LaFramboise (2005), 203 C.C.C. (3d) 492 (Ont. C.A.), para. 31. I again emphasize that those crimes have yet to be proved. [20] In all these circumstances, I conclude that the public interest considered in the context of these extradition cases is not served by incarcerating the applicants when their incarceration pending the disposition of their leave applications is not necessary to facilitate their surrender to the United States: see Ouzghar, at para. 12. [21] Accordingly, both bail applications are granted on the terms agreed to by counsel. “E.A. Cronk J.A.”