COURT OF APPEAL FOR BRITISH COLUMBIA Citation:

A.G. of Canada on behalf of U.S.A. v. Graham, 2005 BCCA 131
Date: 20050302
Docket: CA032715

Between: John Graham Also known as John Boy Patton Appellant (Applicant) And The Attorney General of Canada On behalf of the United States of America Respondent ( Respondent )

Before: The Honourable Madam Justice Rowles (In Chambers) Oral Reasons for Judgment T.E. LaLiberte, Q.C. G.P. DelBigio Counsel for the Appellants R.G. McMeans Counsel for the Respondent

Place and Date: Vancouver, British Columbia 2 March 2005 (bail extradition)

[1] ROWLES J.A. : The United States Government has requested the extradition of John Graham, also known as John Boy Patton, for the purpose of prosecuting him for the offence of murder.

[2] Extradition committal proceedings took place in the Supreme Court of British Columbia, and on 21 February 2005, Madam Justice Bennett determined that there was sufficient evidence to warrant his committal. On 2 March 2005, today's date, she formally ordered his committal into custody to await the Minister's surrender decision. Mr. Graham now seeks his release from custody pending appeal from that decision, and pending the Minister's surrender decision.

[3] This court's jurisdiction to consider Mr. Graham's application for judicial interim release after his order of committal, pending his appeal from committal or pending the Minister's decision whether to order his surrender arises from s. 20 of the Extradition Act. That section provides that s. 679 of the Criminal Code applies, with any modifications 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 s. 29; or (b) the Minister's decision under s. 40 respecting the surrender of the person.

[4] Section 679 of the Criminal Code provides that a judge of the court of appeal may release an appellant from custody, pending the determination of his appeal, if the appellant establishes that: (1) the appeal not frivolous; (2) that he will surrender himself into custody in accordance with the terms of the order; and (3) his detention is not necessary in the public interest.

[5] In this case the only matter in contention is whether the applicant will surrender himself into custody in accordance with the terms of the order. Counsel appearing on behalf of the requesting state has conceded that the appeal is not frivolous. I note that there is an appeal pending before the Supreme Court of Canada about the constitutionality of a provision in the Extradition Act, and that appeal is expected to be heard in October, 2005. The same constitutional issue has been raised in these proceedings. It would therefore appear unlikely that this appeal will be heard before 2006, so there is some considerable time before the appeal will be determined, assuming that the Minister does not say something in the meantime that would give Mr. Graham relief from the committal order.

[6] I have reviewed the material filed in this case including the reasons for judgment of Madam Justice Levine, who heard a review application from an order made by the Associate Chief Justice releasing Mr. Graham from custody on his own recognizance, subject to stringent terms and conditions, after he had been arrested. In her reasons, Madam Justice Levine very carefully went through the material filed by the requesting state as well as the material filed on behalf of Mr. Graham, in part because there were no formal reasons given by the Associate Chief Justice in his ruling. I do not propose to refer to what Madam Justice Levine said in her reasons, as those reasons are well known to counsel and are readily available at 2004 BCCA 162.

[7] In opposing the application for release pending appeal, counsel on behalf of the requesting state has submitted that there is a significant difference between the situation that existed before the Associate Chief Justice and the situation now, in that Madam Justice Bennett has considered the evidence the requesting state proposes to put forward at trial and has concluded that the evidence provides the basis for a prima facie case for the crime charged against Mr. Graham.

[8] I do not have the reasons for committal of Madam Justice Bennett, but I am satisfied from the submissions that have been made to me by Mr. McMeans and Mr. LaLiberte that there is not a sufficient difference in what was before Associate Chief Justice Dohm in terms of the description of the evidence, and what was before Madam Justice Bennett in evidence, for me to await final transcripts of Justice Bennett's reasons from February 21, 2005.

[9] The case relied on by Mr. McMeans in making his submission opposing release is Ross v. United States of America (July 5, 1993, Vancouver Registry CA017111). In that case, Mr. Justice Wood observed that there was an increase in the risk of flight after the committal order had been made than when Ross had been arrested, and that observation obviously makes sense. However, I am not persuaded that, in the circumstances of this particular case, I should deny the application for release. I am satisfied that Mr. Graham has met the tests that are set out in s. 679 of the Criminal Code, and that he should be released.

[10] The terms and conditions that I impose are to be the same as those set out in the order made by Madam Justice Bennett on 23 July 2004, with the two changes I will note. Condition 1: Mr. Graham is to reside at the residence of his daughter Naneek Bear Graham, XXXXXXXXXX, Vancouver, B.C., phone number XXXXXXXXXX. Condition 2: You will be virtually under house arrest.You will not be able to leave your place of residence except a) for the purposes of attending Court, b) to attend at your lawyers office, c) for medical emergencies, or d) to report to the Vancouver Probation Services at 275 East Cordova St. Vancouver, BC, or such other place as directed, twice per week, that being Tuesdays and Fridays at 3 p.m. unless otherwise directed by your bail supervisor or probation officer. When you leave your place of residence for any of the following reasons, it will always be in the presence of at least one (1) of your five (5) sureties. John Graham shall be permitted to attend Britannia Community Centre on Tuesdays, Wednesdays and Thursdays from 3:00 pm to 5:00 pm to allow him to work out at the gym in the presence of one or more of the sureties. John Graham shall then return directly to his residence in the presence of one or more of the sureties. Condition 3: You will report twice a week, on Tuesdays and Fridays at 3:00 p.m. to the Vancouver Probation Services at 275 East Cordova St., Vancouver B.C. or such other time as may be directed by the Probation services. Condition 4: You will have no contact with Nicoline Rickard, or with the family of Anna Mae Aquash - by Mr. Graham personally or by any other spokesperson except counsel. Condition 5: You are to surrender any passport or travel document in your possession and not apply for any such documents. Condition 6: You are to surrender yourself to the sheriffs at 800 Smithe St. at 9 am Monday, 7 November 2005 (end date). "The Honourable Madam Justice Rowles"