Extradition: Bail Pending the Appeal of a Committal Order
The
Test for Release under s. 20 of the Extradition Act
Section 20(a) of the Act provides that the test to be
applied is that set out in s. 679 of the Criminal Code
[Section
679: Release pending determination of appeal] with any modifications that the
circumstances require. Accordingly, the Applicant must show that:
a)
his appeal is not frivolous;
b)
he is not a flight risk; and
c)
his detention is not necessary in the public interest.
The public interest has two components: (1) public
safety; and (2) public confidence in the administration of justice: R. v. Farinacci (1993), 86
C.C.C. (3d) 32 (Ont. C.A.); and R. v. Forcillo, 2016 ONCA 606, at para. 9.
Public
confidence in the administration of justice
In considering whether continued detention is
necessary to maintain the public’s confidence in the administration of justice,
the court must consider how a reasonable and properly-informed member of the
public would perceive the granting of bail: R. v. St-Cloud, 2015 SCC 27, [2015] 2
S.C.R. 328, at para. 87.
In France
v. Ouzghar, 2009 ONCA 137, 95 O.R. (3d) 187, at para. 14, the Court
of Appeal for Ontario indicated that where legitimate public interest concerns
are raised in connection with the applicant’s release, a “harder look at the
merits of the application will be justified”.
In United States v. Viscomi, 2016 ONCA 980,
for instance, the Court found that while the proposed grounds of
appeal met the low threshold of “not frivolous”, the evidence was extremely
strong that the Applicant had committed the offences for which extradition was
sought. Given the violent, heinous and exploitative nature of the
alleged offences, the very weak merits of the appeal became an important
consideration for the Court within its analysis of whether the Applicant had
established that his detention was not necessary in the public interest. The Court ultimately held that the public
interest required the Applicant’s detention.
Extradition Act
Section 20. Section 679 of the Criminal Code applies, with any
modifications that the circumstances require, to the judicial interim release
of a person pending
(a) a
determination of an appeal from an order of committal made under section 29;
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