U.S.A. v. Wilcox

2013 BCCA 548 U.S.A. v. Wilcox

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: U.S.A. v. Wilcox, 2013 BCCA 548 Date: 20131122 Docket: CA041188 Between: The Attorney General of Canada, on behalf of the United States of America Respondent (Applicant) And George Ross Wilcox Appellant (Respondent) Before: The Honourable Madam Justice D. Smith (In Chambers) On appeal from: Supreme Court of British Columbia, August 13, 2013 (U.S.A. v. Wilcox, Vancouver Registry No. 25219) Oral Reasons for Judgment Counsel for the Appellant: G.N.A. Botting Counsel for the Respondent: S.M. Repas Place and Date of Hearing: Vancouver, British Columbia November 20, 2013 Place and Date of Judgment: Vancouver, British Columbia November 22, 2013 Summary G. was committed for extradition to the United States for sentencing on two counts and prosecution on a further two counts for the corresponding offence of sexual interference. G. sought judicial interim release pending the Minister's surrender decision. Held: Application dismissed. G. had a history of flight, having fled the United States when he perceived his trial would not end favourably, resulting in the forfeiture of a $100,000 bond. G. was not entitled to the presumption of innocence on the two counts for which extradition was sought for imposition of sentence. The offences were serious and the complainant was a vulnerable person in respect of whom G. stood in a position of trust. In

these circumstances, G. had not demonstrated that his detention was not necessary in the public interest. [1] D. SMITH J.A.: Mr. Wilcox appeals his committal for extradition to the United States of America for prosecution on two counts and the imposition of sentence on a further two counts for the corresponding Canadian offence of sexual interference, contrary to s. 151 of the Criminal Code, R.S.C. 1985, c. C-46. It is anticipated that the Minister's decision on whether to make a surrender order will be rendered by March 10, 2014. In this application, Mr. Wilcox applies for judicial interim release pursuant to s. 20 of the Extradition Act, S.C. 1999, c. 18 (the Act) pending the surrender decision. Background [2] On June 11, 2009, Mr. Wilcox was convicted in absentia by a jury in Arizona on two counts of the comparable offence in Canada of sexual interference. The victim was Mr. Wilcox's severely disabled then 13-year old step-son, who is immobile, legally blind and unable to speak. The circumstances of the offences included Mr. Wilcox manually stimulating the child's penis to the point of ejaculation. A mistrial was declared on the remaining two counts when the jury was unable to reach verdicts. Those counts involve additional allegations of fellatio and masturbation of the child. [3] Mr. Wilcox does not deny performing the acts for which he was convicted. Rather, he asserted

to the police that he did the acts, not for a sexual purpose, but because he had found on the internet "a Dutch doctor's assertion that orgasm and ejaculation could relieve the stress and tension [the child] lived with," adding that, "This should not surprise any male over the age of thirteen, because all of us have had the experience of relieved stress and tension by orgasm." [4] On June 9, 2009, Mr. Wilcox fled the jurisdiction when it became apparent to him that the trial judge would not permit him to advance his theory of the defence at trial in the absence of any evidence to support it. The trial continued in his absence and his trial counsel continued to represent him until the jury rendered its guilty verdicts on June 11, 2009. [5] When Mr. Wilcox was first arrested on the charges in May 2008, he was granted bail on the posting of a $100,000 bond by his brother. As a result of his bail violation, proceedings were taken for forfeiture of the bond. [6] On November 13, 2009, the Minister of Justice received a request from the United States for the extradition of Mr. Wilcox for the retrial of the two counts that were the subject of a mistrial and for the imposition of sentence on the two offences for which he was convicted. The Minister issued an authority to proceed pursuant to s. 15 of the Act and a warrant for Mr. Wilcox's arrest was issued. Mr. Wilcox was arrested on

July 30, 2012, at Surrey, B.C. [7] On August 28, 2012, Mr. Wilcox applied for judicial interim release before Associate Chief Justice Cullen. Cullen A.C.J. declined to grant Mr. Wilcox bail and detained him on the ground that he was a flight risk. In the course of his reasons for detention Cullen A.C.J. stated that Mr. Wilcox "appears to justify everything he has done including ignoring orders of the court to appear at his trial and in taking steps that evidently caused his brother to forfeit $100,000 bail" (para. 12). An application for review of that order was dismissed. [8] The committal hearing proceeded before Cullen A.C.J. on July 23, 2013. After considering Mr. Wilcox's admissions to police, as well as eyewitness and videotape evidence certified in the Record of the Case, on August 13, 2013, A.C.J. Cullen committed Mr. Wilcox for extradition on the offences alleged in the Authority to Proceed. On September 12, 2013, Mr. Wilcox filed a Notice of Appeal. His counsel has also filed submissions to the Minister on the issue of the surrender order. [9] Mr. Wilcox has been detained in custody at Fraser Regional Correctional Centre since his arrest on July 30, 2012. [10] Section 679 (1) of the Criminal Code sets out the conditions under which a judge of the Court of Appeal may release an appellant from custody pending the determination of the appeal: 679. (1) A judge of the

court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if, (a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal or, where leave is required, notice of his application for leave to appeal pursuant to section 678; (b) in the case of an appeal to the court of appeal against sentence only, the appellant has been granted leave to appeal; or (c) in the case of an appeal or an application for leave to appeal to the Supreme Court of Canada, the appellant has filed and served his notice of appeal or, where leave is required, his application for leave to appeal. [11] In the case of a conviction appeal to this Court or an appeal to the Supreme Court of Canada, s. 679(3) lists the criteria to be considered on the application: (3) In the case of an appeal referred to in paragraph (1)(a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that (a) the appeal or application for leave to appeal is not frivolous; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest. [12] Section 20 of the Act provides that s. 679 applies to judicial interim release proceedings pending

determination of an appeal from an order of committal made under s. 29 of the Act or from the Minister's decision under s. 40 of the Act: USA v. Graham, 2005 BCCA 131 (Rowles J.A. in Chambers). [13] In support of this application, Mr. Wilcox has filed an affidavit in which he deposes that he is a Canadian citizen. He sets out a plan for his release in which he proposes that he will live in a trailer park near to his sister's residence or perhaps in her backyard. Since filing that affidavit, the park has apparently refused to rent him space. Mr. Wilcox also deposes that he is self-employed as a business software developer, that he will resume working if released and that he cannot work from jail as he does not have access to a computer. He has attached letters of support asserting that he is not a pedophile and will have adequate family support if released. Lastly, he deposes that he is not a flight risk and will comply with any terms and conditions that the court may see fit to attach to a bail order. He says that he fled to Canada after his American counsel "effectively advised" him that he was unlikely to receive a fair trial due to his adherence to the Islamic faith, which remarks he inferred meant that he should flee the jurisdiction. Whether the appeal is frivolous [14] Mr. Wilcox raises a number of grounds of appeal in regard to the order for his committal. While they do

not appear to be strong, I am unable to find that his appeal is frivolous as that term is defined in the jurisprudence. Whether the appellant will surrender himself into custody [15] The Court may take into account an applicant's previous compliance or lack thereof with bail conditions, history of attendance in court and compliance with court orders over the course of the proceedings, age, state of health, employment status, housing status, family circumstances, criminal record, history of deceit and any other circumstances: R. v. Schiel, 2011 BCCA 160; R. v. Jahanrakhshan, 2012 BCCA 341 at para. 79 (Frankel J.A. in Chambers). [16] Mr. Wilcox submits that he only fled the United States because of the comments of his American counsel and that he has family in the community and a job. He submits that he is not a flight risk as non-compliance with an order for judicial interim release would risk an unfavourable outcome in his extradition proceedings. It is significant, however, that when Mr. Wilcox perceived that his trial in Arizona might not end favourably he fled the United States and evidently was content to have his brother forfeit his surety of a $100,000 bond. I agree with the comments of Cullen A.C.J. on this issue. Whether the release is in the public interest [17] The public interest criterion involves two considerations: 1) the protection and safety of the public, and 2) the maintenance of the public's confidence in the administration of justice: R. v. J.W.R., 1999 BCCA 574,129 B.C.A.C.

232. The primary concern relates to public confidence in the administration of justice and the need to maintain a balance between the competing dictates of enforceability and reviewability. The strength of the interest in the reviewability of the decision is primarily measured by examining the likelihood of the success of the appeal. Very strong grounds will tip the scale in favour of reviewability. Detention is in the public interest when the principle of enforceability of a decision outweighs the principle of its reviewability: R. v. Mapara, 2001 BCCA 508,158 C.C.C. (3d) 312, per Ryan J.A. Public perception of the administration of justice must also be based on the views held by well-informed, fair-minded, reasonable persons who represent community values: R. v. O'Grady (1997), 117 C.C.C. (3d) 136 at 138 (B.C.C.A.) per Donald J.A. (in Chambers). [18] Typically, an important distinction in an application for judicial interim release pending an appeal from a committal order in an extradition proceeding from one in an appeal from a criminal conviction is that the presumption of innocence still applies as the accused has not been tried and convicted: United States of America v. Wakeling, 2013 BCCA 166 per Frankel J.A. (in Chambers). In this case, however, that distinction does not apply. Mr. Wilcox was convicted of two very serious offences and therefore the presumption of

innocence no longer applies with respect to those two offences for which his extradition is being sought for sentencing. This case also differs from those cases in which an accused is tried in absentia in that Mr. Wilcox was present for his trial at its commencement, but, when faced with a potentially unfavourable ruling on his proposed defence, deliberately chose to absent himself while still represented by counsel at trial. In such circumstances, I am not persuaded that he should receive any benefit from the fact that he was not present for the balance of his trial. [19] The offences for which Mr. Wilcox is sought are serious ones against a disabled child in respect of whom he was in a position of trust as caregiver. Counsel for Mr. Wilcox brought the Court's attention to numerous cases in which bail was granted to accused persons facing more serious charges. In particular, Mr. Wilcox relies on United States of America v. Acosta, (13 April 2012) Vancouver 39810 (B.C.C.A.) (in Chambers). In my view these authorities are of no assistance to Mr. Wilcox as in each of those cases the applicant was awaiting trial and thus at the time of the application still enjoyed the presumption of innocence. [20] In the circumstances of this case where Mr. Wilcox no longer has the benefit of the presumption of innocence on two of the offences for which his extradition is sought and has a

history of flight and non-compliance with orders for his attendance at court, I am of the view that the principle of enforceability of his convictions must outweigh the principle of their reviewability. I am supported in this view by the comments of Madam Justice MacKenzie in United States of America v. Ibrahim, 2012 BCCA 278, 323 B.C.A.C. 234 (in Chambers), in which she found that in the context of extradition proceedings where the applicant's innocence was not at stake with respect to a conviction under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, when considered with the applicant's history of deceit and increased risk of flight, "the balance shifts in favour of enforceability and detention" (para. 47). [21] Accordingly, Mr. Wilcox has failed to meet the burden for his release under s. 679 and therefore his application is dismissed. "The Honourable Madam Justice D. Smith"