United States v. Hoyeck

United States v. Hoyeck Court Court of Appeal Date 2006-06-29 Citation 2006 NSCA 87 Docket CAC 267948 Judge/Registrar/Adjudicator Saunders, Jamie W. S. (Honourable Justice) (CA) Document Type Decision Decision Content NOVA SCOTIA COURT OF APPEAL Citation: United States v. Hoyeck, 2006 NSCA 87 Date: 20060629 Docket: CAC 267948 Registry: Halifax Between: United States of America Appellant v. Elie Hoyeck Respondent Judge: The Honourable Justice Jamie W. S. Saunders Application Heard: June 29, 2006, in Halifax, Nova Scotia, In Chambers Written Decision: July 12, 2006 Held: Application authorizing release from custody pursuant to s. 20 of the Extradition Act, S.C. 1999, c. 18, is granted Counsel: Duncan R. Beveridge, Q.C., for the appellant James Martin, for Her Majesty the Queen Decision: (Orally) [1] Mr. Elie Hoyeck applies under s. 20 of the Extradition Act, S.C. 1999, c. 18 (the Act) for an order authorizing his release from custody pending the decision by the Minister as to Mr. Hoyeck’s surrender to United States officials. [2] The applicant was arrested on February 8, 2006 on a warrant issued pursuant to s. 16 of the Act in relation to a request by the United States that he be extradited to the state of New Hampshire to again stand trial on charges of felonious sexual assault. As relates to that arrest, Mr. Hoyeck was released on a recognizance with conditions on February 13, 2006. [3] Mr. Hoyeck is in attendance this afternoon under guard with his counsel Mr. Duncan Beveridge, Q.C. Mr. James Martin appears for the respondent in his capacity as counsel to the Attorney General of Canada on behalf of the extradition partner the United States of America. [4] Section 20 of the Act incorporates s. 679 of the Criminal Code, with any necessary modifications required for the judicial interim release of a person pending the Minister’s decision under s. 40 of the Act. In the ordinary situation of bail pending appeal, the applicant must establish three things: (1) That the appeal is not frivolous; (2) That the applicant will surrender into custody in accordance with the terms of the order; and (3) That the applicant’s detention is not necessary in the public interest. [5] The respondent opposes to the application. Mr. Martin does not say that the applicant’s submissions to the Minister are or will be frivolous. Counsel for the respondent suggests that this first threshold in the three-step analysis ought not to be a bar to Mr. Hoyeck’s release. Rather, Mr. Martin argues that there are features here which should be considered as indicative of potential flight risk: first, the fact that Mr. Hoyeck was committed to custody by Nova Scotia Supreme Court Justice Walter R. E. Goodfellow, following a hearing held June 27; second, that Mr. Hoyeck did not go back to New Hampshire to face trial once he became aware that a new trial had been ordered; and third, that he has a criminal record for aggravated assault. I will take these points into account in my analysis of the evidence. Mr. Martin did not make any strong submission this afternoon with respect to the third threshold, that is that Mr. Hoyeck must demonstrate that his detention is not necessary in the public interest. [6] In support of Mr. Hoyeck’s application I have reviewed Mr. Beveridge’s lengthy and helpful memorandum; a series of affidavits, including the applicant’s and other persons close to the case; a book of authorities; and a proposed order that has since been revised by Mr. Beveridge after discussions with Mr. Martin. I have also had the benefit of counsels’ submissions this afternoon for which I am most grateful. [7] I will now briefly refer to a portion of s. 20 of the Act which provides: 20. Section 679 of the Criminal Code applies, with any modifications that the circumstances require, to the judicial interim release of a person pending . . . (b) the Minister’s decision under section 40 respecting the surrender of the person; or . . . It sets out certain circumstances in which that release may be sought. The one that is applicable this afternoon is ss. (b) which relates to the Minister’s decision under s. 40 respecting the surrender of the person. We are all familiar with s. 679 of the Code to which I have already alluded, which sets out the factors which must be considered by a court whenever judicial interim release is sought pending appeal. [8] Here we are obviously dealing with an extradition pending ministerial review as opposed to judicial interim release pending an appeal to this court. In my view, some modification is therefore required to meet the present circumstances. Before considering what that might entail, I will comment briefly on the process of extradition that leads to applications such as this. In this the memorandum filed by Mr. Beveridge provided considerable assistance. [9] The original Extradition Act was replaced in 1999. The new Act is intended to remedy a number of uncertainties and gaps in the original statute, but the process would appear to remain essentially the same. The Minister of Justice is obliged to decide if extradition proceedings will be commenced. He or she issues an authority to proceed or so-called “ATP”. The judicial phase of the extradition process then starts. An extradition judge conducts the committal hearing. The sole function of that judge in those circumstances is to decide, based on the evidence admissible under the statute, whether the conduct impugned - had it occurred in Canada - would justify committal for trial on the offences described in the authority to proceed, and whether the person before the court is the person sought by the requesting state here, the United States. [10] It is well recognized that the test for committal will be satisfied whenever there is some evidence to prove the essential elements of the offences listed in the ATP which could, if believed, result in a conviction. If that test is met, then the person sought is then committed into custody to await surrender. The statutory obligation then falls upon the Minister to actually decide whether the person sought should in fact be surrendered to the requesting state. That is the procedure that began before Goodfellow, J. and now continues before me this afternoon. [11] It would appear from my review of the other provisions of the Act that the Minister exercises a broad executive discretion with respect to compelling surrender to a foreign state. But of course, as counsel have indicated this afternoon, such a decision must ultimately be in accordance with the principles of fundamental justice. [12] I have considered the authorities referred to by counsel including United States of America v. Turner, [2003] N.J. No. 11 (Nfld. C.A.); Canada (Attorney General) v. Raghoonanan, [2003] O.J. No. 391 (Ont. C.A.); and United States of America v. Thompson, [2005] N.S.J. No. 303 (N.S.C.A.). From my review of this and other jurisprudence, I am satisfied that in any application made pursuant to s. 20 of the Extradition Act, the applicant must persuade me of three things. First, that his submissions to the Minister are in no way frivolous; second that he is not a flight risk; and third that his detention is not required in the public interest. I will apply those three principles in my assessment of the evidence and the merits of Mr. Hoyeck’s submissions. [13] Let me turn now to some brief consideration of Mr. Hoyeck’s personal circumstances. He is a Canadian citizen. He was born July 19, 1974. He has been a resident of Halifax Regional Municipality since he was 17 years of age and he has extended family connections in metro. [14] The facts in this case are quite bizarre. I will refer both to the affidavit evidence and to portions of Mr. Beveridge’s brief just to set out the background. In 1998 Mr. Hoyeck went to the State of New Hampshire for a few weeks to run a gas station while the owner was away on vacation. He was 23 years of age at the time and single. During his trip he became acquainted with several young women, including Ms. Cassandra Hoppie and Ms. Laurie McCormick. Telephone numbers were exchanged. [15] On May 20, 1998 certain of these young women, including Ms. Hoppie and Ms. McCormick called Mr. Hoyeck at the gas station where he was working. While speaking with these girls, it is said that Ms. Hoppie shouted into the telephone that she wanted to perform fellatio on Mr. Hoyeck and planned to have a threesome with another girl and Mr. Hoyeck. Those details were evidently confirmed by at least one of these young women when she gave a statement to the police in New Hampshire. [16] They met at premises in New Hampshire, and as a result of that encounter Mr. Hoyeck was charged with felonious sexual assault. He went to trial in New Hampshire. The three day trial was heard by judge and jury in December 1998. Mr. Hoyeck was represented by counsel named Sven Wiberg. Efforts are now underway to obtain a full transcript of the trial, but it would appear from what has been reconstructed, that there was conflicting evidence as to whether Mr. Hoyeck knew that the complainant was under the age of 16. The prosecution contended that those concerns were irrelevant, and that all they needed to establish was that sexual acts had occurred and that the woman was 15. [17] Apparently the defence put forward at trial was that the jury ought to be given a nullification charge such that it would not be just or fair for any conviction to be entered against Mr Hoyeck. [18] During deliberation, the jurors specifically asked the trial judge if they could find Mr. Hoyeck not guilty even if the prosecution had met its burden and established the essential elements of the offence. The judge declined to give the sought after jury nullification charge and shortly thereafter, the jury returned verdicts of guilty against Mr. Hoyeck. [19] As a consequence, his bail was immediately revoked and he was taken into custody. There then ensued further developments which included 10 of the 12 jurors approaching the trial judge on their own initiative and indicating that they had unanimously decided to acquit Mr. Hoyeck if the court had given them an affirmative answer to their question seeking a jury nullification instruction. [20] There may now be some controversy as to whether the jury was unanimous in its request for such an instruction or whether only 10 of the 12 jurors were so disposed. That is beside the point this afternoon. Suffice it to say that such entreaties were made by the jurors to the trial judge, and there then followed, as I understand it, some consultation with the jurors on the record, for which a transcript has been prepared. As a result of all of that, the judge decided, if I have this correctly, that there ought to be true verdicts of not guilty entered on the record. Defence counsel, Mr. Wiberg, made such a motion on December 17, 1998. Mr. Hoyeck was not present during the course of that motion. Later that day, on December 17, 1998, he was released from jail. He was not obliged to sign any release documents. He was simply told that the judge had left instructions that he was “free to go.” Mr. Hoyeck immediately returned to Nova Scotia where he has lived ever since. Since all of that occurred, there then arose some events or process which directed that there be a new trial. That is the situation in which Mr. Hoyeck presently finds himself. [21] Notwithstanding the points made by Mr. Martin this afternoon which might suggest that the applicant could be a potential flight risk, I have taken those features into account, and I am satisfied that Mr. Hoyeck has met the three criteria stipulated in s. 679. I find that his submissions to the Minister of Justice for Canada, as counsel may advise, will not be frivolous; that he is not a flight risk given his present circumstances; and that his on-going detention is not required in the public interest. For those reasons I will order his release upon the conditions that are set forth in the draft form of order submitted by counsel with a few changes of my own that I will now put on the record. Mr. Beveridge, please explain the terms of my order to your client. Thank you counsel. Saunders, J. A.