



COURT OF APPEAL FOR ONTARIO

CITATION: United States
    v. Singh, 2014 ONCA 559

DATE: 20140721

DOCKET: M44027

Strathy C.J.O. (In Chambers)

BETWEEN

The Attorney General of Canada on Behalf of the
    United States of America

Respondent

and

Gursharan Singh

Applicant

Frank Addario, for the applicant

Nancy Dennison, for the respondent

Heard: July 18, 2014

On application pursuant to s. 18(2) of the
Extradition
    Act
, S.C. 1999, c. 18, to review a detention order by Justice Todd
    Ducharme of the Superior Court of Justice, dated May 27, 2014, pending a
    request for extradition.

ENDORSEMENT

[1]

Gursharan Singh was denied judicial interim release pending his
    extradition hearing. He applies to this court for review of that order and asks
    to be released on strict terms, including house arrest, electronic monitoring,
    four
sureties and a recognizance in the amount of $850,000.

[2]

Mr. Singh is sought for extradition by the United States with respect to
    two sets of offences, one in Massachusetts and the other in New York. The
    allegations relate to the importation and trafficking of very substantial
    amounts of cocaine and MDMA.

[3]

At the hearing, the Crown did not advance the tertiary ground and the
    application judge found any concerns on the secondary ground could be met by
    imposing strict conditions of release. However, he dismissed the application on
    the primary ground.

[4]

He noted the strict sentencing regime for drug trafficking offences in
    the United States, with the potential for a maximum sentence of life
    imprisonment in New York and 20 years in Massachusetts.

[5]

The application judge also noted that although Mr. Singh has no criminal
    record, he is facing charges in Canada for trafficking in cocaine, possession
    of cocaine for the purposes of trafficking, conspiracy to traffic in cocaine
    and possession of proceeds of crime. Those charges pre-date the extradition
    requests by the United States.

[6]

The application judge observed that the case against Mr. Singh in the
    United States appears strong and the amount of drugs involved, over 350 kilograms
    in one case, make the allegations very serious. He observed that, if convicted,
    Mr. Singh would likely be sentenced to imprisonment of 20 years or more. He
    concluded that in light of these penalties, and the nature and extent of his
    involvement in drug activity, Mr. Singh had not discharged the onus with
    respect to the primary ground.

[7]

The standard of review on this application requires demonstration that
    the application judge made an error in principle:
United States of America
    v. Pannell
(2005), 193 C.C.C. (3d) 414 (Ont. C.A.);
United States of
    America v. Ugoh
, 2011 ONSC 1810, 269 C.C.C. (3d) 380, at para. 9. In
Pannell
,
    at para. 24, MacPherson J.A. referred to the observation of Sharpe J.A. in
United
    States of America v. Chan
(2002), 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].

[8]

Mr. Singh points to three alleged errors that he says permit the
    intervention of this court.

[9]

First, he says the application judge misapprehended the evidence in
    apparently accepting the Crowns submission that he was capable of accessing
    large sums of money, thereby making him a flight risk. In my view, this
    conclusion was open to the application judge and does not reflect an error in
    principle. There was evidence that Mr. Singh was an important participant in a
    sophisticated trafficking operation lasting several years, and that he
    trafficked large quantities of cocaine capable of generating millions of
    dollars of revenue. The observations of the Supreme Court of Canada in
R.
    v. Pearson
, [1992] 3 S.C.R. 665, at p. 696, are apt:

Drug importers and traffickers, however, have access both to a large
    amount of funds and to sophisticated organizations which can assist in a flight
    from justice. These offenders accordingly pose a significant risk that they
    will abscond rather than face trial.

[10]

Second,
    Mr. Singh contends there was no evidence to support the application judges
    statement that he would likely spend a minimum of 20 years in prison. The Crown
    concedes there was no such mandatory minimum sentence and that this observation
    was in error. In my view, however, it was not an error in principle. There was
    evidence that Mr. Singh faced a mandatory minimum of 10 years and a maximum
    sentence of life imprisonment. Under the applicable sentencing guidelines, if
    convicted after trial he could receive an advisory range of sentence of
    between 30 years and life in New York. The application judge was entitled to
    conclude that the possibility of a very long sentence increased the flight
    risk.

[11]

Third,
    Mr. Singh says the application judge made an error in principle in failing to
    balance his flight risk against his absence of a criminal record, his family
    support and impending marriage in Canada, his exemplary conduct on bail for the
    Canadian charges and the strict terms he proposed for house arrest and
    electronic monitoring.

[12]

I
    do not find the application judge made an error in this regard. The applicant
    proposed that he would live with some of his sureties, namely his mother and
    father and brother and sister-in-law. The application judge heard evidence from
    Mr. Singhs mother and father. I agree with the respondent that their evidence
    does not demonstrate a high level of awareness of the seriousness of the
    charges facing their son. The application judge was well-positioned to assess
    Mr. Singhs submission concerning the pull of bail:
United States of
    America v. Ugoh
, at para. 12.

[13]

Mr.
    Singh relied on the fact that, while on bail for the Canadian charges, the
    court, with the consent of the Crown, approved a variation of his bail to
    permit him to travel to India to attend a family wedding. He duly returned. Mr.
    Singh contends this is strong evidence of his trustworthiness. I agree with the
    Crown that the playing field has changed dramatically in the interim  he is
    now facing very serious charges in the United States and the possibility of
    lengthy imprisonment. As well, as the application judge noted, the case in the
    United States appears strong, notwithstanding its reliance on cooperating witnesses
    who were themselves facing long sentences. The application judge also noted
    that although Mr. Singhs parents and siblings are in Canada, he has relatives
    in India.

[14]

I
    do not find it persuasive that two of the other participants in one of the
    alleged offences in the United State were granted interim release by a judge of
    the British Columbia Supreme Court. The judge in that case found that the
    evidence against the accused was of questionable reliability and the
    identification evidence was weak. The application judge here found the evidence
    appears to be strong. The Supreme Court judge in British Columbia found that
    the co-conspirators were not available to assist the accused in flight,
    presumably because they had been arrested. That conclusion is not available in
    Mr. Singhs case because it is a reasonable inference that the alleged
    conspiracy involved parties outside North America.

[15]

I
    have not overlooked the submission based on
United States of America v.
    Cheema
, 2007 BCCA 624, 255 B.C.A.C. 35, at para. 17, that there is
    always, in these cases, some possibility of flight. Prowse J.A. made that
    observation in the context of being satisfied that the applicant would
    surrender into custody.

[16]

The
    application judge expressly referred to Mr. Singhs constitutional right to a
    reasonable bail. In my view, he undertook an appropriate balancing of all
    relevant considerations and made no error in principle in concluding Mr. Singh
    had not discharged the onus on him.

[17]

Mr.
    Singh points to the sophisticated electronic monitoring system that he has
    agreed to implement and pay for as a term of his release. This proposal was not
    before the application judge. As Trotter J. observed in
R. v. Sotomayor
,
    2014 ONSC 500, [2014] O.J. No. 359, at para. 40, [e]lectronic monitoring is not
    a primary ground panacea. It does not prevent absconding, it merely notifies
    the authorities when someone has moved out of the zone in which they are meant
    to remain. In my view, the electronic monitoring proposal does not tip the
    balance in favour of release.

[18]

For
    these reasons, the application is dismissed.

G.R.
    Strathy C.J.O.


