



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Kyeremeh, 2020
    ONCA 438

DATE: 20200630

DOCKET: M51603

Paciocco
    J.A. (Motion Judge)

BETWEEN

The
    Attorney General of Canada

on
    behalf of the United States of America

Respondent

and

Richy
    Kyeremeh (a.k.a. John Doe a.k.a.

Richard
    Cheremeh a.k.a. Emmanuel Ampaabeng)

Applicant

Alison
    Craig, for the applicant

Heather
    Graham and Kiran Gill, for the respondent

Heard:
    June 26, 2020 by video conference

REASONS FOR DECISION

OVERVIEW

[1]

The applicant, who has been ordered committed in
    an extradition proceeding, seeks an order for judicial interim release pending
    the Minister of Justices Decision on Surrender. For the reasons that follow, this
    application is denied.

MATERIAL FACTS

[2]

The applicant entered the United States from the
    Republic of Ghana, his home country, on December 22, 2001. He knowingly used a
    passport and visa issued in the name of another person, Emmanuel Ampaabeng. His
    fraudulent use of the documents was not discovered for many years. Prior to
    that discovery he settled in Worcester, Massachusetts, where he married.
    Shortly after obtaining a green card through his wife, he and she divorced.
    While in the United States he worked, and he purchased a home under the name of
    Emmanuel Ampaabeng.

[3]

On February 25, 2019, after suspicion was cast
    on his identity and his fraudulent entry into the United States was discovered,
    the applicant was arrested on charges of making a false statement relating to
    naturalization, and aggravated identity theft. Together those charges carry a
    minimum penalty of two years, and a maximum of five additional years of
    imprisonment.

[4]

Approximately two weeks after his arrest, the
    applicant was released on conditions without sureties, on an unsecured bond of
    $25,000. One of the reasons the court did not detain him was because of the
    applicants strong roots in the community, including his home and employment.

[5]

On August 4, 2019, despite his roots in the
    community, the applicant breached the conditions of his release and fled to
    Canada, entering illegally. Eight days later, on August 12, 2019, he filed for
    refugee protection under the name of Richy Kyeremeh. He based his refugee protection
    claim on his fear that if he returns to Ghana, he will be punished by death through
    an extra-judicial killing for having declined a tribal appointment because of his
    religious objections. The refugee protection application is still outstanding.

[6]

Notably, the applicant disclosed to Immigration,
    Refugees and Citizenship Canada (IRCC) authorities some of the circumstances
    that brought him to Canada, including that he had entered the United States
    using false documentation, settled there, and that he faces outstanding identity
    theft and misrepresentation charges in the United States. He told the
    authorities he came to Canada to avoid being sent back to Ghana by the
    Americans.

[7]

On August 28, 2019, a woman who lived in the
    applicants Worcester, Massachusetts home, faxed a handwritten letter to the
    American court that was processing the applicants charges, advising the court
    that the applicant had returned to Ghana because he could not bear what was
    going on. The information in the letter was false because by the time the
    letter was sent, the applicant was in Canada with no intention of returning to
    Ghana.

[8]

After his entry into Canada the applicant obtained
    a work permit and settled in Brampton, Ontario, where he worked and integrated
    into the large, local Ghanaian community. Since his arrival he has complied
    with all the conditions imposed upon him by IRCC. He has made no attempt to
    hide while in Brampton, accurately notifying the Immigration authorities of his
    address, and using his actual address on his Ontario drivers licence.

[9]

On February 4, 2020, he was arrested in Brampton
    pursuant to a provisional arrest warrant for his extradition to the United
    States, obtained at the request of the United States. The applicant did not
    seek his judicial interim release on that arrest, and on June 12, 2020 a
    consent committal order was issued by Durno J. (subsequently amended on June
    17, 2020).

[10]

The applicant has not appealed his committal,
    but applies before me, pursuant to s. 20(b) of the
Extradition Act
, S.C.
    1999, c. 18, for an order granting judicial interim release pending the
    Ministers Decision to Surrender. The applicant contends that there is
    significant merit in his request to the Minister that he not be surrendered to
    the United States.

[11]

Relevant to those merits, the parties agree that
    the American case against the applicant is strong, and that if he is extradited,
    he will likely be convicted. In turn, if he is convicted, there is a near
    certainty he will ultimately be deported to Ghana.

[12]

In addition, the applicant contends that he has
    presented a strong case in his refugee protection claim that if he returns to
    Ghana his life will be at risk. He notes that, since he is a refugee protection
    claimant, s. 40(2) of the
Extradition Act
requires the Minister of
    Justice to consult with the Minister of Citizenship and Immigration before
    ordering his extradition. The applicant contends that given the risk he will be
    under if sent to Ghana, there is strong reason to believe that this
    consultation will trigger s. 44(1)(a) of the
Extradition
Act, which
    requires the Minister to refuse to make a surrender order if the Minister is
    satisfied that the surrender would be unjust or oppressive having regard to
    all the relevant circumstances.

ISSUE AND ANALYSIS

[13]

The only issue before me is whether the
    Applicant should be released pursuant to s. 20(b) of the
Extradition Act
,
    pending the Ministers Decision to Surrender.

[14]

Section 20(b) applications incorporate the test
    for judicial interim release pending the determination of an appeal, set out in
    s. 679(3) of the
Criminal Code
, R.S.C. 1985, c. C-46, with any
    modifications that the circumstances require. Section 679(3) provides:

679 (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.

[15]

The Attorney General agrees that the applicant
    has met the very low threshold of showing that the issues raised in his
    submissions to the Minister are not frivolous. The Attorney General does not oppose
    the applicants release based on public safety concerns; the applicant has led
    a law-abiding, industrious life. Instead, the Attorney General contests the
    applicants release because, in the Attorney Generals view, the applicant has
    not met his s. 679(3)(b) onus of establishing that he will surrender himself
    into custody in accordance with the terms of the release order. Consequently,
    he cannot demonstrate under s. 679(3)(c) that his surrender is not
    necessary in the public interest.

[16]

In making this submission the Attorney General
    stresses that one of the modifications to s. 697(3) required in extradition
    proceedings is ensuring compliance with Canadas international obligations: see
A. G. of Canada on behalf of the USA v. Mordi
, 2010 ONSC 6666, at para.
    4. Even in the case of refugees, given Canadas obligations to its extradition
    partners,

Canadas
non-refoulement
obligations do
    not displace the well-established requirement that a court considering an
    application for judicial interim release in an extradition proceeding must
    limit the assumption of risk of non-appearance more severely than might
    otherwise be acceptable in the case of an application for judicial interim
    release brought by an offender under the
Criminal Code
.

See
Cretu v. Romania
, 2012 SKCA
    69, 399 Sask.R. 59, at para. 17;
U.S.A. v. Edwards
, 2010 BCCA 149, 288
    B.C.A.C. 15, at para. 18. The Attorney General asks that I bear this in mind
    when considering the public interest under s. 679(3)(c).

[17]

I am not persuaded that the mode of analysis
    offered by the Attorney General is correct. Specifically, I do not believe it
    to be necessary where an applicant has failed to establish that he will
    surrender himself into custody in accordance with the terms of his order, to go
    on and consider the effect of his risk of flight on the public interest, under
    s. 679(3)(c). In a s. 679 application, the applicant bears the burden of
    establishing each of the three itemized release considerations, on the balance
    of probabilities, before an interim judicial release order may be made:
R.
    v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19. All considerations
    relevant to flight risk can be considered under s. 679(b). This includes the
    lower flight-risk tolerance that applies where an applicants failure to
    surrender would frustrate the public interest in Canadas discharge of its international
    obligations to its extradition partners. 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.

[18]

The challenge for the applicant is that he has
    an established history of dishonesty directly related to his desire to avoid
    being in Ghana. He successfully acquired and used fraudulent identification to
    enter the United States under the name Emmanuel Ampaabeng, and then used that
    false identity to marry and obtain a green card. When confronted by American
    officials about his identity he lied under oath. He breached bail conditions
    that he undertook to respect and violated his bail bond, while trying to
    deceive the court about where he had fled. According to the Attorney General,
    it cannot be assured that he is indeed Richy Kyeremeh, as he currently claims. American
    authorities believe his real name is Richard Ameyaw-Akumfi Cheremeh, a name he
    told American authorities he wished to adopt as his legal name and has used in
    an email account.

[19]

The applicant argues that three specific
    considerations should overcome this history and the flight concerns it would
    otherwise raise.

[20]

First, he has been honest with Canadian
    officials from the outset that he used the false identity, Emmanuel Ampaabeng,
    to enter the United States, and that, as a result of using that false identity
    he faces outstanding American charges. He did not attempt to hide when he
    entered Canada, but instead reported his entry. He has filed a refugee protection
    application and has provided accurate and up-to-date information as to where he
    can be found.

[21]

Second, the applicant urges that his refugee
    protection claim is strong, and the likelihood of its success reduces his
    incentive to flee before the Ministers surrender decision.

[22]

Third, he relies on what he claims to be the
    strong bail release plan he proposes. Four responsible individuals from the
    Ghanaian community, three of whom attest to having known the applicant from
    Ghana, and three of whom are ministers or pastors at the applicants church
    community, are prepared to pledge sums that are meaningful to them, between $2,000
    and $5,000. The applicant would live with one of his sureties and would leave
    the residence only accompanied by a surety.

[23]

The Attorney General does not share the
    applicants belief that his submissions to the Minister provide a strong basis
    for the exercise of the Ministers discretion because the Attorney General
    contends that there are inconsistencies in the supporting material and other
    credibility concerns. The Attorney General also contends that the release plan
    is not strong, given that the applicant is not close enough to any of the
    sureties to enable them to exact moral suasion over his conduct. Even if they
    report him after he flees, which he could easily do given his ability to secure
    and use false identities, it would be too late, and Canadas international
    commitment to the United States would be defeated or delayed.

[24]

I confess to having been challenged by this
    application. The appropriate outcome is not obvious. However, in the
    circumstances I am not satisfied that the applicant has met the burden of proof
    he bears of demonstrating, on the balance of probabilities, that he will
    surrender himself into custody in accordance with the terms of the proposed
    release order.

[25]

If the applicant is extradited, he acknowledges
    that it is almost certain that he will be convicted and then deported to Ghana.
    I am not in a position to decide whether the applicants desire to avoid Ghana
    is based on a sincere and reasonable fear of persecution, but what cannot be
    questioned is that he is highly motivated not to go there. He has demonstrated
    that he will use fraudulent means to avoid doing so, and that he would breach
    bail at great personal expense to achieve that. He had strong personal and
    financial ties to the United States yet violated a bail release order. If he
    had to breach his bail in Canada to avoid going to Ghana, there is a real risk
    that he would do so.

[26]

I accept that the applicants bail release plan
    is commendable, but I am not persuaded that it would probably prevent him from
    fleeing, if he feels the need to do so. The applicant does not have meaningful
    ties to Canada that would be apt to discourage him from violating Canadian law.
    Although he has known some of the proposed sureties for many years, his
    reacquaintance with them is recent and the amounts they have pledged may not be
    sufficient to discourage his flight.

[27]

The concerns I express are mitigated to some
    degree by the fact that the applicant surfaced after his illegal entry into
    Canada, identified himself to authorities, and brought an application for
    refugee protection in which he disclosed his time in the United States and his
    outstanding charges. However, these facts do not right the balance in the
    applicants favour. The applicant would have had a difficult time surviving in
    Canada without Canadian identity, which his refugee application has provided.
    If he wished to file a credible refugee application, he would have no choice
    but to provide an accurate and verifiable recent history. Although his
    application clearly exposed him to the risk of extradition, there is strong
    reason to believe that immediately after it was filed, he took steps to make
    his trial look cold to the Americans by notifying the American court that he
    had already returned to Ghana. This is not a case where I can find that the
    applicant has been entirely open in trusting his fate to the processes of law.

CONCLUSION

[28]

It was for the applicant to satisfy me
    that he will surrender himself in accordance with the order. In the
    circumstances I am not satisfied, on the balance of probabilities. The
    application for judicial interim release pending the Ministers Decision to
    Surrender is denied.


David
    M. Paciocco J.A.


