One of the most despairing legal situations that a person can possibly face is the prospect of being forcibly taken from Canada to a foreign country - and subjected to what may well be a Kafkaesque justice system that operates under unfamiliar rules, before alien judges, in a possibly unknown language, and can lead to hardship and the deprivation of liberty in a prison far from home.
That, is what extradition is all about.
The first thought, therefore, of someone so detained is - how do I get released, pending the extradition hearing and, if necessary, the Ministerial decision?
This is an important question because, apart from the fact that home is always more comfortable than a jail - even a Canadian jail - there are other reasons why the attainment of bail should be a high priority.
Leaving aside the sheer inefficiency and difficulty of meeting with clients who are incarcerated, as is well known, clients in custody tend to want to plead guilty, or "get the process over with," or "get on with serving their time."
The pressures on counsel to just "work out" something, anything, are enormous and are usually detrimental to the client's ultimate best interests.
It therefore becomes extremely challenging to be able to protect the client's rights and interests - including the possibility of negotiating with the prosecutors in the foreign State - from a position of weakness due to the client's incarceration.
Bail is a right protected by s.11(e) of Canada's Charter of Rights and Freedoms. Combined with the presumption of innocence, it is a fundamental entitlement available to all who are facing charges, most especially if those offences are based outside Canada and are the subject of extradition applications.
The Ontario Court of Appeal's recent decision to uphold Justice A.C.R. Whitten's detention order of Karim Baratov, in concert with other recent decisions in Ontario and Alberta, have focused attention upon the very real issue of flight as a ground for the refusal of bail in extradition cases.
Why? Because in Canada, for the most part, the length of sentences imposed for non-murder convictions - even if there are mandatory minimums - are probably thought of as "tolerable" considering:
· the actual time that a person is sentenced to,
· the parole considerations which reduce the real jail time, and
· the accessibility and availability of family and community resources.
The same, however, cannot be said about many foreign courts, the foreign sentences imposed, and foreign jail conditions.
Furthermore, the prospects of overly-lengthy sentences and / or harsh jail settings has generally not found favour as a basis for either the Minister or the Supreme Court of Canada to refuse to uphold an extradition request - unless the maximum actual sentence able to be imposed, or the foreign judicial system in place, would "shock the conscience," or involves the imposition of the death penalty, or would lead to inevitable violations of peremptory norms of international human rights law, such as the infliction of torture.
Therefore, short of such extreme situations, when the factors of foreign sentences, foreign locales, and foreign judicial systems are combined with the realization that many accused have commercial, personal, familial and other significant - or even minor - links to third-party States that either do not have extradition treaties with Canada, or have very complex and difficult to enforce treaties, then it becomes understandable why the courts often look with grave suspicion and a jaundiced eye upon those seeking release in Canada while awaiting an extradition hearing.
Thus - as the Supreme Court pointed out in the recent decision of R. v. St-Cloud, - while bail in extradition cases may differ at the bail review stage, and while the legal principles regarding the actual granting of bail are supposed to be the same as in ordinary cases, the reality of an extradition bail hearing is often quite different from its domestic counter-part.
As such, while an extradition bail hearing does generally comport to the Criminal Code's provisions, including the possible applicability of the reverse-onus aspects, nevertheless it's also clear that the flight factor generally takes on a more important role than it ordinarily would for domestic cases.
And, when, as in his situation, an accused also has access to lots of money, then courts become concerned that sophisticated escape plans can easily be put into play - just in case - as was the situation in the Wilson case, where the accused rented a private plane and fled to Vietnam; although that eventually was of no help to him.
Or, as the Alberta Court of Appeal recently stated in the Andronyk matter, "there is almost a 'B movie' quality" to the extent that people will go when faced with extradition to a jurisdiction known for its heavy sentencing. This includes staging a 'fake' suicide, and having the financial means to then 'go off the grid' and disappear."
What then is a suspect to do in order to convince a court that he or she is deserving of bail in extradition cases, and that they will not disappear?
Traditionally, cash deposits, large financial pledges by sureties, restrictive conditions - including house arrests and electronic monitoring - combined with the honest and well-meaning intentions of those who sign bail recognizances, are just some of the usual indices that persuade courts that releases can be authorized.
However, as was pointed out in the Baratov case, that may not be good enough when there are links to foreign States and the suspect has financial resources available to him or her.
While neither the Superior Court nor the Court of Appeal offered any guidelines as to what more would have been needed to grant bail to Mr. Baratov, a review of the concerns addressed by both of the courts made it obvious that anyone facing bail would realistically have to not only provide proof of cash, sureties and community and/or family support - especially having regard to the seriousness of the allegations and the potential foreign sentence - but, the accused should also be prepared to answer questions such as:
· What exactly is the family history? That is, where do they came from, and when did they arrive in Canada?
· What family members or close friends are still in the "old country"?
· What are the various actual or deemed nationalities of the accused and his / her families?
· What non-Canadian passports would be available to them, their spouses, their families and their proposed sureties?
· What are the travel, immigration, citizenship, passport, visa or nationality requirements of the countries that are linked to the suspect, if the suspect wanted to go there?
· What is the extradition status of these countries and all other nations linked to the family and the proposed sureties?
· How did the family / accused acquire their wealth - and how, if at all, can access by the accused be restricted?
· Were the accused and the families honest in their accounting and reporting of such wealth and fiscal links to the appropriate authorities?
· What business and/or banking connections and/or financial assets does the family have outside Canada?
· Can assurances be obtained from the third-party State that they would immediately report any attempt by the accused to obtain visas or passports or to enter their territory?
While obviously not every question would or could be answered in every case, as long as the bail court's suspicion that flight is easily attainable remains a concern, then every attempt to allay such fears needs to be exhausted.
Nevertheless, it would also be of benefit to all of us if it can be determined whether the perception that flight is more prevalent in extradition cases than it is in domestic situations, is factually true - and, what is the reality regarding "fail to appear" in such circumstances?
Accordingly, it would be interesting to have a professional study commissioned to determine the answers to the following questions:
· What percentage of extradition requests are commenced by summonses, as opposed to arrest warrants? How does that compare to the issuance of summonses, or other immediate forms of release by police in non-extradition situations?
· How many extradition cases result in the granting of bail - whether the hearings are contested or not? How does this percentage compare to domestic bail hearings?
· Of those released, how many accused actually fail to appear for the extradition hearing?
· Assuming extradition is ordered, what percent of those so ordered apply for bail pending the appeal and/or the Ministerial adjudication?
· How many of those released pending appeal actually abscond? Again, how does this compare to domestic statistics?
Perhaps if the cold reality of statistics were to show that extradition cases are no more prone to disappearances than are domestic cases, and that such occurrences are rare, then courts can stop being overly-suspicious.
However, until then, the risk of flight will remain a very real factor in extradition bail hearings. And failing to obtain bail can lead to a waiver of extradition, without any benefit - as may have occurred in Mr. Baratov's case - and a one way flight to the extradition demanding State.