



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



United States v. Ibrahim,









2013 BCCA 165




Date: 20130116

Docket: CA039987

Between:

Attorney General
of Canada
on behalf of the United States of America

Respondent

And

Ali Ibrahim

Appellant

Correction: The front
page of the judgment was corrected on July 17, 2013.




Before:



The Honourable Madam Justice Garson





(In Chambers)




On appeal from: Supreme
Court of British Columbia, June 6, 2012
(
U.S.A. v. Ibrahim
, 2012 BCSC 916, Vancouver Registry No. 24593)

Oral Reasons for Judgment




Counsel for the Appellant:



December 21, 2012 -
  G. Botting

January 11, 2013 - F.
  Arbabi





Counsel for the Respondent:



J.M.L. Gibb-Carsley





Place and Date of Hearing:



Vancouver, British
  Columbia

December 21, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 16, 2013








GARSON J.A.
:

1.         Nature of the application

[1]

Mr. Ibrahim applies for judicial interim release pending appeal,
pursuant to s. 20 of the
Extradition Act
, S.C. 1999, c. 18, and
s. 679 of the
Criminal Code
, R.S.C. 1985, c. C-46. This is Mr. Ibrahims
third application for release in this Court. He submits there has been a
material change in circumstance that warrants this further hearing.

2.         Procedural history

[2]

The original charges brought against Mr. Ibrahim relate to tax
evasion and immigration fraud in the United States. In 1994, Mr. Ibrahim
pleaded guilty to one count of immigration fraud and was sentenced to three
years probation with conditions. In 1996, he breached those conditions and in
1997 his probation was revoked. The USA sought Mr. Ibrahims extradition
for the imposition of a sentence. Mr. Ibrahim was arrested in May 2008 on
a warrant issued under the
Extradition Act
. He was released on bail for
the duration of the Supreme Court proceeding. He breached his curfew once in a
fairly minor way in August 2011.

[3]

The lengthy history of this matter, as well as the charges Mr. Ibrahim
is facing are set out in detail by Justice Ehrcke, in the court below:
U.S.A.
v. Ibrahim
, 2012 BCSC 1213 at paras. 910.

[4]

Mr. Ibrahim appealed the June 6, 2012, decision of Justice Ehrcke,
and applied in this court for judicial interim release. On June 25, 2012, Madam
Justice MacKenzie dismissed his application for bail: 2012 BCCA 278.

[5]

Mr. Ibrahim brought a successive application before MacKenzie J.A.
on August 22, 2012, based on a material change in circumstances. The
material change asserted by Mr. Ibrahim included the availability of an
additional surety and an increased pledge. Mr. Ibrahim also claimed that
he had additional affidavit materials relevant to the merits of his appeal that
had not been before MacKenzie J.A. in June at his first application for
release. She concluded that the material changes alleged by Mr. Ibrahim
were insufficient to meet the threshold required for granting interim judicial
release, and she dismissed the application: 2012 BCCA 363.

[6]

Mr. Ibrahim appealed MacKenzie J.A.s order to Finch C.J.B.C.
sitting in chambers, pursuant to s. 680 of the
Criminal Code
. Chief
Justice Finch dismissed the appeal, stating he had no jurisdiction to give a
direction under s. 680 in an extradition proceeding, per
Thailand v.
Saxena
, 2006 BCCA 147: 2012 BCCA 438.

[7]

Mr. Ibrahim has now re-applied for judicial release, citing a further
material change in circumstances.

[8]

Those asserted changed circumstances relate primarily to his health. In
support of his application, he has attached to his affidavit the medical report
of Dr. Hasham. Dr. Hasham reports that Mr. Ibrahim had a number
of medical conditions prior to his incarceration. They included: major
depression, for which he was treated and was described as stable;
osteoarthritis and rheumatoid arthritis, which had required referral to a specialist,
after which his symptoms had improved; degenerative spinal disc disease that
required referral to a specialist and for which he is said to be waitlisted for
surgery; also urological problems; and sleep apnea, for which he was using a
CPAP machine. Dr. Hasham visited Mr. Ibrahim in the detention
facility. He noted a worsening of all his pre-existing medical conditions.
Dr. Hashams physical examination of Mr. Ibrahim, noted at page 3 of
his report, was essentially normal. But in Dr. Hashams description of his
mental status examination, he found Mr. Ibrahims memory and concentration
to be significantly impaired. His mini-mental status exam was 23 out of 30.
This would fall into the range of mild dementia. Dr. Hasham found Mr. Ibrahim
to be severely depressed according to a Personal Health Questionnaire he
administered to Mr. Ibrahim.

[9]

In summary Dr. Hasham states:

Mr. Ibrahim
is a 56 year old man who has been in detention for the past six months. He is
awaiting extradition to the USA to respond to charges that took place about 20
years ago. While in detention, this man's mental health as well as physical
health has deteriorated significantly. He has become severely depressed which
has affected his mood as well as his cognition. He needs urgent treatment for
this condition as his general wellbeing depends on this. He requires intense
therapy through a Mental Wellness Health Clinic, such as the one provided by
the Burnaby Mental Wellness Program. If this is not provided in a timely
manner, his mental health and therefore his physical health is likely to
deteriorate. He also needs urgent attention to his sleep apnea problem by
providing him with a CPAP machine to reduce apneic spells during his sleep and
therefore reducing the risk of cardiac complications. Other issues that need
attention are include [sic] surgery for disc herniation in the lumbar spine,
treatment of his urological symptoms, corrective lenses to improve his vision
and assessment of his hearing loss. He may also need further investigations to
assess the recurrent abdominal pains and a new tremor which he has recently
developed.

[10]

After the December 21, 2012, hearing of this matter before me, Mr. Ibrahim
sought leave to tender two further affidavits and make further submissions. I
received those affidavits and heard further submissions on January 11,
2013. I advised counsel that I would rule on the question of whether I should
admit the additional evidence at the same time that I ruled on the substance of
the application for release. As one of the affidavits is the affidavit of Mr. Botting,
his counsel on December 21, 2012, Mr. Ibrahim retained new counsel, Mr. Arbibi,
to appear for him on January 11, 2013.

[11]

Those further materials address three issues.

[12]

The first issue is the non-disclosure of the relationship between Mr. Ibrahim
and his potential employer. In the new affidavit, Mr. Botting says that it
was his omission, not his clients, that led to the failure to disclose that
the employment offer was from Mr. Ibrahims sister.

[13]

Second, the new materials address in further detail Mr. Ibrahims
complaints about the prison conditions he is experiencing. He describes a
sexual assault, other physical threats, and the fact that he witnessed other
criminal activity and is now in danger. He has not disclosed any of this to the
prison authorities because he does not wish to be placed in segregated
protective custody.

[14]

Finally, the new material offers some further details about the asserted
lack of medical treatment. Mr. Ibrahim says he suffered a stroke on the
night of December 5, 2012. He was taken to hospital and kept overnight. He
says a CT scan taken that evening was normal, although he has some remaining
residual numbness in the toes of his left foot and in his face. No medical records
of this incident have been provided.

[15]

Mr. Ibrahim also says in his new affidavit that he has requested
access to a Mental Wellness program, but that no such program is available in
the prison. Mr. Ibrahim attaches as exhibits to his latest affidavit a series
of requests by him to the prison authorities for medical services. In each
case, the prison health services confirm that Mr. Ibrahim will be booked
to see the next available doctor. On October 16, 2012, he requested an
appointment with a prison psychiatrist, Dr. Murphy, to discuss his
depression and anxiety. The response was that he would be booked for the next
available appointment with a psychologist, as a medical referral is required to
see a psychiatrist. However, it is apparent from Mr. Ibrahims affidavit
that he has, on at least one occasion, met with Dr. Murphy. Mr. Ibrahims
affidavit is silent on the question of whether he was offered, or attended, an
appointment with a psychologist.

3.         Position
of the parties

[16]

Mr. Ibrahim asserts that his appeal is not frivolous, on the basis
that the issues relating to his 1994 probation have already been dealt with. He
says he has completed his sentence.

[17]

On the question of whether he will surrender himself into custody, Mr. Ibrahim
states that while awaiting his committal hearing he was released on bail.
During that time he generally did not breach conditions and appeared as
required, though he admits to one minor breach. Mr. Ibrahim also notes
that he has strong family and community ties. He says that his mother will
continue to be his surety if he is released. Mr. Ibrahim also says that
his health is a consideration when evaluating his risk of absconding.

[18]

Mr. Ibrahim says that the material changes in circumstances are
such that it is in the public interest he be released.

[19]

The Attorney General contends that there has been no material change in
circumstances. The Attorney General argues that Mr. Ibrahims primary
medical conditions are chronic and date back to at least 2009. Further, there
is no evidence before the Court that the pre-trial detention facility at which Mr. Ibrahim
is detained cannot provide the necessary medical treatment. The Attorney
General also argues that Mr. Ibrahim has failed to demonstrate how his
health issues materially change the specific factors found by Justice MacKenzie
to weigh in favour of the enforceability of the committal order over its
reviewability. The Attorney General says that the offer of employment contained
in a letter placed before the court on this application is not a change in
circumstance and seems to contradict his asserted deteriorating cognitive
condition. Alternatively it is argued that even if a material change threshold
has been demonstrated, Mr. Ibrahim has still failed to discharge the onus
on him under s. 679(3).

4.         Applicable legal test

[20]

Mr. Ibrahim applies for release pending appeal under s. 679(3)
of the
Criminal Code
.

[21]

Section 679(3) provides as follows:

(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.

[22]

This Court has jurisdiction to entertain subsequent applications for
bail pursuant to a purposive interpretation of s. 679, but only on the
basis of a material change in circumstances:
R. v. Wilder
,
2006 BCCA 290, 227 B.C.A.C. 310;
R. v. Daniels
(1997), 35 O.R.
(3d) 737, 119 C.C.C. (3d) 413 (C.A.). A material change is one capable of
leading to a different assessment of one or more of the factors set out in
s. 679(3):
Italy v. Seifert
, 2008 BCCA 25, 250 B.C.A.C. 66. Mr. Ibrahim
does not specify how his change in circumstances is relevant to any particular
factor in s. 679(3). I shall consider each in turn.

5.         Discussion

(a)       Merits
of appeal

[23]

On a subsequent bail application, the first justices evaluation of the merits
should be respected by a justice hearing further applications in chambers: see,
for example,
Sekhon v. Armstrong
, 2003 BCCA 318 at paras. 2728,
183 B.C.A.C. 137, and
J.(J.) v. Coquitlam School District No. 43
,
2010 BCCA 182 at para. 4, 318 D.L.R. (4th) 495.

[24]

Justice MacKenzie noted in her reasons on the first bail hearing that
while Mr. Ibrahims grounds of appeal were not frivolous, the appeal was
weak at best on all grounds. The material change in circumstances alleged here
relates to Mr. Ibrahims health and could not be construed as a material
change that would form the basis of a different conclusion regarding the
strength of the appeal.

(b)       Risk
to abscond

[25]

Regarding Mr. Ibrahims assurances that he will surrender himself
when required, MacKenzie J.A. expressed serious concerns that led her to
conclude Mr. Ibrahim could not be relied upon to meet the conditions of
bail.

[26]

Mr. Ibrahims history documented in earlier proceedings includes
the following points of concern. In the original extradition matter (2009 BCSC
1090), Halfyard J. commented that during his probation in the late 90s, Mr. Ibrahim
travelled to India and then did not return to the United States as was required
by the terms of his probation. At para. 8 of his reasons, Halfyard J.
commented:

In late August 1996, Mr. Ibrahim
left the United States and travelled to India, with the permission of his
probation officer. He was required to return to the United States not later
than October 31, 1996, and to report to the probation officer on
November 1, 1996. He did not return to the United States, or report
to the probation officer, as required. He changed his name. It appears that Mr. Ibrahim
was in India from the fall of 1996 until about late1997, when he moved to
Australia. He deposes that he moved from Australia to Canada in June 2005.

[27]

Justice Halfyard also noted Mr. Ibrahims explanation for changing
his name, and his reasons for holding multiple passports, at para. 12:

Mr. Ibrahims explanation
for changing his name was, in substance, to enable him to work in India. He
said that he had been born in India, but had lived with his parents in
Pakistan, and had been issued a Pakistani passport which mistakenly stated that
he was born in Pakistan, which made him ineligible to work in India. His
Canadian passport also stated that he was born in Pakistan, and so he applied
for an Indian passport using a different name, but one which was connected with
his family.

[28]

In Justice MacKenzies June 25 reasons, she commented on Justice
Halfyards observations regarding Mr. Ibrahims use of false identities.
In her discussion of Mr. Ibrahims willingness to surrender into custody,
at para. 31 of her judgment, she stated:

Mr. Justice Halfyard  observed
that under cross-examination, the applicant admitted that he had not only used
three aliases at various times, and had used a false name in applying for an
Indian passport issued in August 2000, but had also changed the names and dates
of birth of his wife and children. The applicant used the same false name in
his application for an Australian passport issued in June 2004. Although he provided
his correct name in applying for a Canadian passport issued in February 2005,
he admitted to making the false statement that he had been born in Karachi,
Pakistan.

[29]

In Justice MacKenzies August 31 reasons, following Mr. Ibrahims
change in circumstances application, she again commented on Mr. Ibrahims
familiarity with aliases at para. 22:

To address my concern about his
extensive familiarity with using aliases for himself and his family, Mr. Ibrahim
deposes that he gave his real name and address to American authorities when his
wife abducted his children to the USA and has lived under his own name in
Canada. However, this evidence does not address or materially change the
evidence of Mr. Ibrahims prior use of aliases. Mr. Ibrahim lived
under false identities for years. Aspects of this conduct are also described in
the transcript of the bail hearing before Mr. Justice Halfyard on May 21,
2008, provided by Mr. Ibrahim on this application.

[30]

MacKenzie J.A. concluded (at paras. 40 and 41, 2012 BCCA 278):

[40]      I recognize that most of the instances of deceit
related by the AG occurred prior to the four-year period that the applicant was
on bail, which passed largely without incident. However, the cumulative effect
of the following circumstances leaves me in a state of doubt regarding the
applicant's willingness to abide by an order of the Court requiring his
surrender into custody: the applicant's failure to return to the USA as
required after his trip to India; the fact that his extradition is sought, in part,
to impose sentence for a crime for which he has already pleaded guilty and been
convicted; his extensive familiarity with the use of aliases for himself and
his family, employed at his convenience; the finding by Halfyard J. that he was
not a credible witness; and the investigation into his failure to declare any
income earned as required for receipt of income assistance benefits, which I
agree provides further evidence of a pattern of dishonesty.

[41]      I further view the
enhanced risk of flight in the aftermath of the extradition order, together
with Canada's international obligations in extradition proceedings that require
the Court to limit the assumption of risk of non-appearance more severely than
might otherwise be acceptable in domestic proceedings, to be significant
considerations in the circumstances of this case. In so commenting, I am aware
that the escalation of risk is not an insurmountable obstacle to securing bail:
Seifert v. Italy,
2003 BCCA 690, 200 B.C.A.C. 4 at para. 13
(Chambers), Esson J.A. However, given the cumulative effect of the
circumstances listed above, I simply cannot conclude that the applicant's word
is sufficiently reliable for the Court to assume the risk that he will
surrender into custody as required.

[31]

The material change in circumstance alleged on this application is Mr. Ibrahims
deteriorating health, as outlined in Dr. Hashams report, and his concerns
for his safety within the prison system.

[32]

Although, health
may
be a consideration in determining an
individuals risk of absconding:
Italy v. Seifert
, 2007 BCCA 420, 246
B.C.A.C. 69, here, Mr. Ibrahims health issues are not, in my view,
relevant to the assessment of his reliability to surrender, one way or the
other.

[33]

On this application Mr. Ibrahim also presented evidence of a new
offer of employment available to him, if he is released from custody. He states
in his first affidavit on this application that he has secured part-time
employment commencing within a week of his release. He produced a letter from
the proposed employer. He did not reveal that the proposed employer was his
sister. This fact was drawn to the courts attention by counsel for the
Attorney General. (I note as an aside that the responsibilities required of him
in this prospective employment as an information technology recruitment
consultant seem somewhat inconsistent with his complaints of deteriorating
mental faculties.)

[34]

The omission to disclose that the employment offer was made by his
sister could be relevant to questions of his truthfulness. That in turn may be
relevant to the assessment of the risk to abscond. Mr. Bottings
explanation provided in his affidavit filed on January 11, 2013, is that
the failure to disclose the familial relationship with the potential employer
was his own error. Mr. Ibrahim argues that this should not be a factor
assessed against him. It is a troubling omission but as I decide this
application on other grounds it is unnecessary to comment further on this
aspect of the evidence.

[35]

I conclude generally that there is no material change in circumstances
that is relevant to the assessment of his risk to abscond as assessed by Madam
Justice MacKenzie.

[36]

As Mr. Ibrahims health concerns are not ones that would lead to a
different assessment of his assurance that he will surrender himself into
custody as required, or his willingness to comply with the conditions of his
bail than the assessment made by MacKenzie J.A., I turn next to the third
factor.

(c)       Detention
not necessary in the public interest

[37]

In
Wilder
at paras. 810, Justice Donald stated that health
concerns may be of relevance to the public interest factor, although he did not
accept that that was so in the
Wilder
case. (See, however:
R. v. Michel
(1996), 72 B.C.A.C. 237 (Proudfoot J.A. in chambers);
R. v. Clouden
,
2011 ABCA 262 (in chambers).)

[38]

In a very general way, I would characterize Mr. Ibrahims
submissions as one asserting hardship owing to the ill effects of imprisonment
on his health.

[39]

The question in this case is whether Mr. Ibrahims health is a
material change in his circumstances and if so, whether it would alter the
reviewability/enforceability assessment of MacKenzie J.A.

[40]

The Attorney General drew to the courts attention a medical report from
2009 in which Mr. Ibrahim complained of the same or similar symptoms now
exhibited, including dementia. Thus, it would seem that his most significant
health complaint of severe depression/dementia is one of long duration.

[41]

Other than Dr. Hashams statement that he does not believe the
treatment he recommends is available in the correctional facility, there is no
evidence that Mr. Ibrahim is unable to access appropriate medical
treatment.

[42]

In summary, it is my view that the circumstances alleged by Mr. Ibrahim
do not address the concerns that led Justice MacKenzie to initially deny him interim
release. Further, although the medical conditions alleged by Mr. Ibrahim
could be serious if left untreated, Mr. Ibrahim has not provided evidence other
than Dr. Hashams unsupported opinion that appropriate treatment is
unavailable to him while he is incarcerated. To the contrary, his new affidavit
would indicate that he is receiving necessary medical care including an
emergency admission to hospital, and referral to a psychologist.

[43]

Mr. Ibrahims concerns about his safety and well being within the
prison system are questions that are within the control of the prison system
and not properly before this court on an application for release. The evidence concerning
the conditions in prison do not demonstrate hardship that is sufficient to lead
to the conclusion that it is in the public interest that Mr. Ibrahim be
released.

6.         Disposition

[44]

I would grant leave to introduce the new evidence tendered on January 11,
2013, and dismiss this application.

The Honourable Madam Justice Garson


