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;