





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 courts 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 Justices 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 applicants
    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 courts
    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 courts 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 Crowns 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. Nadarajahs 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 courts 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.


