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Criminal - Extradition - Bail. United States v. Paradkar [fresh evidence on bail review]
In United States v. Paradkar (Ont CA, 2026) the Ontario Court of Appeal considered a federal AG application "on behalf of the United States of America pursuant to s. 18(2) of the Extradition Act, S.C., 1999, c. 18, to review the order ... for judicial interim release of the respondent, ... pending his committal hearing for extradition to the United States".
Here the court considered the "modified Palmer test" for fresh evidence in extradition cases:[37] There is broad scope for the admission of fresh evidence on a s. 18(2) bail review. The test for admission is a modified Palmer test (Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759), such that this court must consider (1) whether the party tendering the fresh evidence proceeded with due diligence, which requires “some reason that is legitimate and reasonable” that the evidence was not tendered at first instance; (2) whether the fresh evidence is relevant to an issue before the court; (3) the credibility or trustworthiness of the fresh evidence; and (4) its materiality, i.e., its significance to the decision of the justice at first instance:[3] St-Cloud, at paras. 129-137. . United States v. Paradkar [bail review]
In United States v. Paradkar (Ont CA, 2026) the Ontario Court of Appeal considered a federal AG application "on behalf of the United States of America pursuant to s. 18(2) of the Extradition Act, S.C., 1999, c. 18, to review the order ... for judicial interim release of the respondent, ... pending his committal hearing for extradition to the United States".
Here the court sets out the interaction of the CCC bail review procedures in extradition situations:Relevant Statutory Provisions
[14] The application for judicial interim release was made under s. 18(1)(b) of the Extradition Act. Pursuant to s. 19, the provisions of Part XVI of the Criminal Code, R.S.C., 1985, c. C-46 apply to bail applications under s. 18, including the criteria for bail set out in s. 515(10). Section 515(10) provides that the detention of an accused in custody is justified only on one or more of the following grounds:(a) where the detention is necessary to ensure the accused’s attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including:
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [emphasis added.] [15] Mr. Paradkar, having been charged but not convicted, is presumed innocent. He also enjoys the protection of s. 11(e) of the Charter – the right not to be denied bail without just cause: Canada (Attorney General) v. Raghoonanan (2003), 2003 CanLII 52132 (ON CA), 63 O.R. (3d) 465 (C.A.), at para. 51. In seeking judicial release pending his committal hearing, however, Mr. Paradkar bore the onus of establishing that his detention was not justified under any of the primary, secondary, or tertiary grounds. The reverse onus applied because the offences are alleged to have been committed for the benefit of a criminal organization: Criminal Code, s. 515(6)(a)(ii); because the charges include conspiracy to traffic in cocaine: Criminal Code, s. 515(6)(d); and because the charges include conspiracy to commit murder: Criminal Code, s. 522.
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Standard of Review
[29] The standard of review for intervention in a bail review under s. 18(2) of the Extradition Act requires that the reviewing court be satisfied that the impugned decision contains an error in principle: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 102; United States v. Pannell (2005), 2005 CanLII 22 (ON CA), 193 C.C.C. (3d) 414 (Ont. C.A.), at para. 24; United States v. Singh, 2014 ONCA 559, at para. 7. The issue is not whether I would grant bail if the matter came before me at first instance, but whether reviewable error on the part of the judge who sat on the initial application is demonstrated: United States v. Chan (2000), 2000 CanLII 5619 (ON CA), 144 C.C.C. (3d) 93 (Ont. C.A.), at para. 2.
[30] An error in principle, for the purposes of s. 18(2), includes errors of law, the failure to consider relevant factors, the over- or underemphasis of relevant factors, and the consideration of irrelevant factors: United States v. Baratov, 2017 ONCA 481, at para. 8.
[31] Finally, the reviewing court also has the authority to vary the order of the application judge if satisfied that there has been a material and relevant change in the circumstances of the case such that the application judge would not have made the order that he did had he been aware of these circumstances: Baratov, at para. 10; St-Cloud, at para. 121.[2]
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[58] In determining whether the three grounds for detention have been rebutted, the court must consider all relevant circumstances bearing on the issue. While the reference in s. 515(10)(c) to “the apparent strength of the prosecution’s case” means the strength of the case for committal and not the ultimate prosecution (R. v. Nygard, 2021 MBCA 27, at para. 29), there is nothing in s. 515(10)(a) that would specifically preclude consideration of the strength or weakness of the case for conviction as part of the assessment of flight risk.
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[61] Even at a committal hearing, “[t]he extradition judge’s role is to determine whether there is a prima facie case of a Canadian crime, not to become embroiled in questions about possible defences or the likelihood of conviction. Extradition hearings are not trials; they are intended to be ‘expeditious procedures to determine whether a trial should be held’”: M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at para. 38. At the committal hearing, the certified information before the court is presumed to be reliable and there is a very narrow scope for the assessment of credibility: M.M., at paras. 71-72. This court recognized in Baratov, at para. 7, “the limited role of the court in assessing the strength of the case in an extradition proceeding” and extended this principle to the context of a bail application pending extradition. See also Nygard, at para. 40.
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[82] I note that, in arguing this ground, the Attorney General does not suggest that there was any error of law or principle here, except in the application judge’s weighing of the factors and the evidence relevant to the tertiary ground. The Attorney General relies on a passage in St-Cloud, in the context of bail reviews under ss. 520 and 521 of the Criminal Code, where the court identified as reviewable a bail decision that is “clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another”. The court immediately went on to note, however, that “[t]he reviewing judge […] does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently.”: at para. 121.
[83] I do not understand St-Cloud to endorse a reweighing of factors relevant to the tertiary ground by the reviewing court. Rather, the review of the application judge’s evaluation of the tertiary ground proceeds from a position of deference. The court observed, at para. 114, that the application judge, in addressing the tertiary ground under s. 515(10)(c), must “balance several factors, including the ones listed in that provision” and in so doing “must for the most part make findings of fact and assess the weight of those findings to determine whether detention is justified.” The court noted that a decision made on the basis of s. 515(10)(c) “calls for the consideration of several factors that may be difficult to balance” and that “[t]his is a delicate exercise whose essence would be distorted if an open-ended discretion to review the initial release decision were to be conferred on the [reviewing] judge”: at para. 117. Similarly, the court cautioned against a reviewing judge substituting his or her assessment of the evidence for that of the justice: at para. 6.
[84] As Trotter J. (as he then was) noted in R. v. Dang, 2015 ONSC 4254, 21 C.R. (7th) 85, “this standard of review does not permit a mere re-weighing of relevant factors” which “would amount to the exercise of an open-ended discretion”, and, “in the absence of some demonstrable error or problem in the handling and balancing of relevant and irrelevant factors, a reviewing judge should not intervene”: at paras. 32, 37.
[85] The same approach is appropriate here. While errors in principle, for the purpose of an extradition bail review, include “failing to give sufficient weight to relevant factors [and] overemphasizing relevant factors” (Baratov, at para. 8), the reviewing court cannot intervene simply because it would have weighed the relevant factors differently. Moreover, an application judge’s findings of fact on a bail application are entitled to deference, absent palpable and overriding error: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250 at para. 61.
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[92] Finally, there is no question that the strength of the bail plan was a relevant consideration at the tertiary stage. As Copeland J. (as she then was) observed in R. v. J.S., 2020 ONSC 1710, at para. 13, an important consideration on the tertiary ground, in addition to the four enumerated factors, is the proposed plan of release: “[a] reasonable and informed member of the community would not have concerns for the administration of justice if proposed release terms are sufficient to address the tertiary ground concerns.” . United States v. Sokolovski
In United States v. Sokolovski (Ont CA, 2026) the Ontario Court of Appeal dismissed a bail review, this brought under EA s.18(2) ['Review by court of appeal'] where a central issue was the threat of absconding:[2] The applicant has been in detention since his arrest on November 18, 2025. After a three-day hearing, on February 23, 2026, the application judge denied his application for judicial interim release, pending his extradition hearing. The application judge relied principally on the primary ground under s. 515(10)(a) of the Criminal Code, R.S.C. 1985, c. C-46,[3] finding that “the risk that [the applicant] will abscond, whether by leaving Canada or going underground within Canada, is too great.” He also concluded that the applicant did not meet his onus under the tertiary ground set out in s. 515(10)(c) because: the prosecution “established a strong case for extradition”; “[t]he allegations are extremely serious, involving international drug trafficking and homicide”; the applicant “faces a very lengthy term of imprisonment if convicted”; and the application judge had “concerns about the reliability of the sureties”. He was not, however, persuaded that the applicant’s detention was necessary for the protection or safety of the public under s. 515(10)(b).
[3] The applicant applies to this court for review of the February 23, 2026 order under s. 18(2)[4] of the Extradition Act and asks to be released on strict terms that include: fairly stringent house arrest; limited access to cellphones and other electronic devices; electronic monitoring; surrender of his passport; four proposed sureties; and monetary pledges without deposit in the total amount of $3.2 million. In support of his review application, he seeks to adduce fresh evidence that he was recently diagnosed with arthritis.
[4] The standard of review on this application requires the applicant to demonstrate that the application judge made an error in principle: United States of America v. Pannell (2005), 2005 CanLII 22 (ON CA), 193 C.C.C. (3d) 414 (Ont. C.A.), at para. 24. As Sharpe J.A. observed in United States of America v. Chan (2000), 2000 CanLII 5619 (ON CA), 144 C.C.C. (3d) 93 (Ont. C.A.), at para. 2, "[t]he issue, accordingly, is not whether I would grant bail if the matter came before me at first instance, but rather, whether the applicant can demonstrate reviewable error on the part of [the application judge]."
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a. The application judge did not err in his treatment of the evidence about the applicant’s finances
[6] The applicant argues that the application judge erred in concluding that he intentionally hid his finances from his proposed sureties, that his lifestyle could not be accounted for based on the earnings he reported to the Canada Revenue Agency and disclosed to the court, and that his proposed sureties lacked reliability or suitability because of their unawareness of his finances.
[7] I see no error in the application judge’s assessment of these issues.
[8] I reject the applicant’s submissions that it was not a fair interpretation of the evidence that the applicant was hiding his finances and that it was an error for the application judge to conclude that the applicant’s lifestyle could not be explained by the evidence. I agree with the application judge’s conclusion that the applicant’s lavish lifestyle remains unexplained, and the evidence amply supports that he is hiding his finances. This includes the applicant’s frankly incredible testimony on these issues. The evidence proffered by the applicant did not account for the millions of dollars in revenue running through his company, as indicated in the produced corporate income tax statements. Nor did he adequately explain his ability to purchase a $4 million dollar home and service a $2.3 million mortgage when he reported little and then no income in his personal tax returns over the last several years and his admitted assets were inadequate to do so. It defies belief that a chartered bank would agree to lend $2.3 million without the applicant demonstrating substantial assets and income to service the $12,000 monthly mortgage payments.
[9] The applicant’s failure to provide a credible picture of his true financial situation gives rise to a concern that he may have hidden assets. His lack of credibility and reliability on these issues belies any trust that the court can have in him being honest with his proposed sureties and obeying the provisions of any release order. As a result, the risk that the applicant would abscond is, as the application judge concluded, very high.
[10] As for the proposed sureties, the application judge made no error in questioning their ability to supervise him. Their belief in the applicant’s innocence of the charges alone would not affect their ability to properly fulfil their obligations as a surety: R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673, at paras. 72-74. However, that is not the issue highlighted by the application judge. Rather, he questioned whether the proposed sureties had the proper wariness and level of sophistication to adequately supervise the applicant based on their unawareness of his finances. The proposed sureties’ testimony reflects their steadfast trust in the applicant to not do anything to jeopardize their pledges. In my view, this suggests a presumption on their part that he would obey release terms. The role of a surety is supervisory. This requires them to remain watchful and not unquestioningly trust the person whom they are supervising. Even though they said they would report a breach, the proposed sureties’ continuing, unquestioning trust in the applicant about everything, notwithstanding that he clearly and so successfully misled them about his financial affairs, undermines the court’s confidence in their being able to properly supervise him.
b. The application judge did not err in his reliance on facts in the bail letter
[11] The application judge was entitled to rely on the factual components of the bail letter submitted by the government seeking extradition. Section 19 of the Extradition Act incorporates certain provisions of the Criminal Code, including s. 518(1)(e), which provides that an application judge “may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case.” Bail letters have previously been found to be credible and trustworthy, at least in relation to the factual allegations they disclose and where they do not amount to mere advocacy: R. v. Nygard, 2021 MBCA 27, at para. 22, leave to appeal dismissed, [2021] S.C.C.A. No. 131; United States of America v. Shahid, 2021 ONSC 88, at para. 35; R. v. Shahid, 2020 ONSC 6308, at para. 20; R. v. Raza, 2020 ONSC 2381, at paras. 17-19; and Gary T. Trotter, The Law of Bail in Canada, 3rd ed (Toronto: Thomson Reuters Canada, 2025) (loose-leaf 2025-Rel. 2), § 14:5.
[12] The application judge made no error in relying on the factual components of the bail letter submitted by the United States Department of Justice, including that: the applicant laundered hundreds of millions of dollars; obtained a $13 million vehicle for Mr. Wedding; and had access to tens if not hundreds of millions of dollars in cryptocurrency and physical assets. These factual components were buttressed by the documentary evidence of the text communications between the applicant and Andrew Clark (whom the application judge described as Mr. Wedding’s “second-in-command”), as well as by the account information of the applicant’s accounts with cryptocurrency exchanges, and by his company’s tax returns showing millions of dollars of unaccounted for revenue and the applicant’s lavish and unexplained lifestyle, including the purchase of the $4 million home. As the application judge correctly observed, this evidence suggests the applicant’s participation in and awareness of the inner workings of the Wedding DTO and support the allegations against him. . United States v. Olaniyan
In United States v. Olaniyan (Ont CA, 2025) the Ontario Court of Appeal denies a bail pending appeal application, this in an extradition context:[1] Adeyanju Olaniyan was committed into custody with two others to await surrender and extradition to the United States of America under s. 29 of the Extradition Act, S.C. 1999, c. 18, by Mirza J., on April 25, 2025, with reasons reported at 2025 ONSC 2374. The applicable test is set out in s. 29 of the Extradition Act, which provides:29. (1) A judge shall order the committal of the person into custody to await surrender if
(a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner ... [2] Mr. Olaniyan appealed the committal order and now applies for bail pending appeal. Section 20(a) of the Extradition Act provides that s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, applies to such an appeal “with any modifications that the circumstances require”. The grounds are that (a) the appeal or application for leave to appeal is not frivolous; that (b) he will surrender himself into custody in accordance with the terms of the order; and that (c) his detention is not necessary in the public interest. The basic onus is on the applicant: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19.
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[4] The extradition context introduces tension between the low threshold of “not frivolous” in the first ground under s. 679, and the lower tolerance for flight risk in the second ground that comes with Canada’s international obligations to its extradition partners to deliver the individual up for extradition once the process has run its course.
[5] In U.S.A. v. Kyeremeh, 2020 ONCA 438, 151 O.R. (3d) 522, Paciocco J.A. set out some modifications in the application of s. 679 required in the extradition context, at para. 17. In the context of extradition: “The question under s. 679(3)(b) is whether the applicant has established, on the balance of probabilities, that the likelihood that he will surrender himself into custody overcomes the concern that if he is released, Canada may be unable to discharge its international commitments to its extradition partner.”
[6] In this assessment, the court must bear in mind “all considerations relevant to flight risk”, which includes “the lower flight-risk tolerance that applies where an applicant's failure to surrender would frustrate the public interest in Canada's discharge of its international obligations to its extradition partners.” If the applicant has not established that he will surrender himself, then the court need not go on to “consider the effect of his risk of flight on the public interest, under s. 679(3)(c).” . United States v. Emony
In United States v. Emony (Ont CA, 2025) the Ontario Court of Appeal considered an extradition bail application pending the Minister of Justice's extradition surrender decision, which adopts CCC 679 bail pending appeal law:(2) The Legislative Framework
[17] The applicant seeks bail under s. 20(b) of the Extradition Act, which provides:s. 20 Section 679 of the Criminal Code applies, with any modifications that the circumstances require, to the judicial interim release of a person pending
(a) a determination of an appeal from an order of committal made under section 29;
(b) the Minister’s decision under section 40 respecting the surrender of the person; or
(c) a determination of a judicial review of the Minister’s decision under section 40 to order the surrender of the person. [Emphasis added.] [18] Section 679 of the Criminal Code is the provision under which bail pending appeal is sought in domestic criminal proceedings. Subsection (3) of that section provides:(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. [19] A central feature of bail applications under s. 679 of the Criminal Code is the termination of the presumption of innocence: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 17, at para. 35; R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), at p. 37. By contrast, someone in the applicant’s position, who has not been found guilty of any offence in the requesting state, is presumed innocent: Canada (Attorney General) v. Raghoonanan (2003), 2003 CanLII 52132 (ON CA), 63 O.R. (3d) 465 (C.A.), at para. 51; Schreiber v. Germany (Federal Republic), 2007 ONCA 80, at para. 10. Even so, as in the domestic context, an applicant under s. 20 of the Extradition Act bears the onus on a balance of probabilities: Canada (Attorney General) v. Kyeremeh, 2020 ONCA 438, 151 O.R. (3d) 522, at para. 17.
(3) Applying the Factors
(a) Section 679(3)(a): The Appeal Meets the “Not Frivolous” Threshold
[20] Conceptually, the application of this factor to extradition cases is unusual. Section 679 of the Criminal Code is a critical tool for an appellate court in carrying out its reviewing function of lower court decisions in criminal cases. But in this case, the applicant has consented to his committal for extradition – thus, there is nothing to review.
[21] In these circumstances, it is accepted that the “not frivolous” criterion is focused on the applicant’s submissions to the Minister of Justice. The applicant must demonstrate that the submissions fall within the purview of the Minister’s jurisdiction under the Extradition Act, and that they are not frivolous: Raghoonanan, at paras. 33, 38-39.
[22] The respondent fairly concedes that the applicant’s submissions are not frivolous. I agree. The applicant has met his onus on this factor.
(b) Section 679(3)(b): The Applicant Will Not Surrender into Custody
[23] Flight is a concern in many extradition cases. It is heightened where it is alleged that the person sought has fled the requesting state to avoid criminal justice consequences. Moreover, because of Canada’s international treaty obligations, judges must be more probing in deciding whether the person sought will surrender into custody in accordance with the terms of any bail order that is made: United States of America v. Edwards, 2010 BCCA 149, 288 B.C.A.C. 15, at para. 18; Thailand v. Saxena, 2006 BCCA 145, 224 B.C.A.C. 68, at para. 13.
[24] In domestic proceedings, at the pre-trial stage, the primary ground focuses on whether the accused person will appear in court for trial. On appeal, the focus is on surrendering into custody prior to the appeal being heard (or some other specified date). In the extradition context, at the post-committal stage, the applicant would be required to surrender into custody prior to the release of the Minister’s decision. But in each instance, the concern is not limited to the prospect of absconding or fleeing from the jurisdiction; it equally applies to the person disappearing within the jurisdiction of Canada – going “underground,” as Parfett J. put it. As Gillese J.A. said in United States v. Viscomi, 2016 ONCA 980, at para. 29: “flight is not limited to places outside of Canada.”
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