



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Italy 
          v. Seifert,







2008 
          BCCA 25



Date: 20080104

Docket: CA031164

In the Matter of the
Extradition Act

Between:

The 
    Attorney General of Canada on behalf of

the 
    Republic of Italy

Respondent

(
Requesting State
)

And

Minister 
    of Justice of Canada

Respondent

And

Michael 
    Seifert

Applicant

(
Person Sought
)




Before:


The 
          Honourable Mr. Justice Lowry




(In 
          Chambers)



Oral Reasons for Judgment




D.H. 
          Christie


Counsel for the Applicant




K.L. 
          Swift


Counsel for the Respondent




Place 
          and Date:


Vancouver, British Columbia




4 January 2008



[1]

LOWRY, J.A.
: The Republic of Italy seeks the extradition of the 
    applicant who was convicted
in absentia
of nine murders said to have 
    been committed while he was a guard at a prison camp during the Second World 
    War.  He appealed his convictions unsuccessfully, through two levels of appeal 
    to Italys highest court.  He has been sentenced to life imprisonment.  These 
    extradition proceedings were commenced in 2003.  A committal order has been 
    entered in the Supreme Court of British Columbia and the applicants surrender 
    has been ordered by the Minister of Justice.  The applicants appeal and application 
    for judicial review to this Court has been dismissed.  He has made application 
    for leave to appeal to the Supreme Court of Canada and applies now under s. 
    679(1)(c) of the
Criminal Code
for judicial interim release 
    while that application is pending.  It is his second application in this Court 
    for release; the first was dismissed.  While the grounds of his proposed appeal 
    were seen as weak they were not all considered to be frivolous, but he failed 
    to establish his detention was not, in the public interest, necessary (2007 
    BCCA 420).  The justice said:

[24]  
    The crimes upon which Mr. Seifert has been ordered surrendered are atrocities 
    of the worst order.  I have concluded that none of the grounds of appeal put 
    forward can be described as strong or very strong.  Some of them are frivolous, 
    and I would describe the balance as weak.  The public interest in the enforceability 
    of this Courts order is very high.  In my view, public confidence in the 
    administration of justice would be undermined if I were to order Mr. Seiferts 
    release in these circumstances.

[2]

The applicant is 83 years of age; he is said to be in ill health.  
    He has resided at the same residence in Vancouver, where he lives with his 
    wife, for over 50 years.  He has no passport and only a small pension.  He 
    lived peacefully and lawfully on bail for over five years until he was taken 
    into custody following the judgment of this Court just over four months ago.  
    The justice did not consider him a flight risk.

[3]

An application for judicial interim release under s. 679(3) of the
Code
is a fresh application, as opposed to a bail review application 
    under s. 680.  On a successive application such as this, the applicant must 
    demonstrate, as a preliminary matter, there has been a material change in 
    circumstances (
R. v. Baltovich
(2000), 47 O.R. (3d) 761, 144 
    C.C.C. (3d) 233 (C.A.);
R. v. Daniels
(1999), 35 O.R. (3d) 737, 
    119 C.C.C. (3d) 413 (C.A.);
Saxena v. Thailand
, 2006 BCCA 293, 
    227 B.C.A.C. 307 at para. 4;
R. v. Wilder
, 2006 BCCA 290 at 
    para. 5).  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) of the
Code
:
(a) whether the leave application is frivolous; (b) whether 
    the applicant will surrender himself into custody in accordance with the terms 
    of any release order; and (c) whether the applicants detention is necessary 
    in the public interest (see
Baltovich
at paras. 3-7).

[4]

The applicant contends a decision of the Federal Court in denaturalization 
    proceedings that have in some measure paralleled the extradition proceedings 
    represents a material change in circumstances.  In
Canada (Minister 
    of Citizenship and Immigration) v. Seifert
, 2007 FC 1165, it was determined 
    the applicant gained entry into Canada by misrepresentation and non-disclosure.  
    It was, however, also determined that the evidence adduced in the Federal 
    Court proceedings did not establish, on a balance of probabilities, the applicant 
    had committed the crimes at the prison camp that were alleged against him 
    in that case.  In particular, the judge said:

[210]
Accordingly, I am not satisfied 
    that the allegations against Mr. Seifert ... have been proved on the 
    balance of probabilities.  Indeed, in respect of most of those allegations, 
    there is simply no evidence before me.  In respect of additional accusations 
    made by former prisoners who testified in these proceedings, again, I cannot 
    find that they have been proved.  I do not suggest that witnesses fabricated 
    evidence, or even that they are mistaken.  I simply conclude that the evidence 
    does not establish on the balance of probabilities that Mr. Seifert is responsible 
    for the acts alleged against him.

[5]

While some of the evidence may have been common to both proceedings, 
    the evidence tendered before the Federal Court was not
the
evidence 
    in these extradition proceedings.  In any event, this Court has determined 
    that, on the evidence adduced in these proceedings, the applicants extradition 
    is sound.  Further, whatever may be said of the evidence against the applicant, 
    the Federal Court decision does not undermine in any material way the basis 
    on which the applicants interim release was first denied: his failure to 
    establish his detention is not, in the public interest, necessary given the 
    crimes of which he has been convicted.

[6]

I do not consider the applicant has discharged the burden he bears 
    on this application for interim release and his application is dismissed.

The Honourable Mr. Justice Lowry


