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Criminal - Extradition - Bail. 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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