Graham Bail Upheld: March 23, 2004

Graham Bail Upheld: March 23, 2004

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: U.S.A. v. Graham, 2004 BCCA 162 Date: 20040323 Docket: CA031575 In the matter of the Extradition Act, S.C. 1999. c. 18 as amended Between: The Attorney General of Canada on behalf of the United States of America Applicant (Respondent ) And John Graham also known as John Boy Patton Respondent (Applicant)

Before: The Honourable Madam Justice Levine (In Chambers) D.J. Strachan and J.G. Johnston Counsel for the Appellant T.E. La Liberte, Q.C. Counsel for the Respondent Place and Date of Hearing: Vancouver, British Columbia January 28, 2004 Place and Date of Judgment: Vancouver, British Columbia March 23, 2004 Reasons for Judgment of the Honourable Madam Justice Levine: Introduction

[1] The respondent, is wanted for prosecution in the United States for a murder that occurred in 1975. He was arrested in Vancouver on December 1, 2003. On January 15, 2004, Associate Chief Justice Dohm of the British Columbia Supreme Court released Mr. Graham from custody on his own recognizance, subject to certain terms and conditions.

[2] The appellant, the United States, represented by the Attorney General of Canada, seeks an order detaining Mr. Graham in custody. It argues that Dohm A.C.J. erred in principle in finding that Mr. Graham had satisfied the onus on him to show cause why his detention in custody was not justified. Judicial Interim Release under the Extradition Act

[3] The United States seeks the extradition of Mr. Graham under the Extradition Act, S.C. 1999, c. 18, as amended. Mr. Graham was arrested pursuant to a Provisional Arrest Warrant issued under s. 13 of the Act. Section 19 of the Act provides that Part XVI of the Criminal Code applies to a person arrested under such a warrant. Because the charge against Mr. Graham is equivalent to first-degree murder under the Code, s. 522(2) required him to show cause why his detention in custody was not justified on any of the grounds set out in s. 515(10) of the Code. The three grounds are: 515 (10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and (c) on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution's case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment. Hearing and Order

[4] Mr. Graham's application for judicial interim release was heard on December 23, 2003 and continued on January 15, 2004. Counsel for the United States argued that Mr. Graham had not shown cause that his detention was not justified on either the primary or tertiary grounds of s. 515(10).

[5] At the opening of the hearing on December 23, 2003, Dohm A.C.J. indicated that he had read the material. After hearing submissions, he expressed concern with where Mr. Graham would reside and that sureties be persons resident in British Columbia. On January 15, 2004, those matters having been dealt with to his apparent satisfaction, he released Mr. Graham on the condition that he post $25,500 in cash and five individuals become sureties for $10,000 each, without deposit or security, as well as the following additional conditions: 1) Reside at the residence of Joni Elisabeth Miller at #2-1110 Odlum Drive, Vancouver, BC, V5L 3L7, phone number (604) 215-9426. 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 lawyer's office, c) for medical emergencies, or d) to report to the Vancouver Police Department. When you leave your place of residence for any of the above reasons, it will always be in the presence of at least one (1) of your five (5) sureties. 3) You will report daily to the closest Vancouver Police Department Community Policing Station, located at 312 Main Street, Vancouver, BC in the company of at least one (1) of your five (5) sureties. 4) You will have no contact with Nicoline Richard, or with the family of Anna Mae Aquash by Mr. Graham personally or by any other spokesperson except counsel. 5) You are to surrender any passport or travel document which is in your possession and not to apply for any such documents.

[6] Dohm A.C.J. did not provide reasons for his ruling. He did not express his findings of fact or his conclusions on the primary and tertiary grounds set out in s. 515 (10) of the Code. Nature of Review under the Extradition Act [7] The jurisdiction of a judge of this Court to review the order of Dohm A.C.J. is found in s. 18(2) of the Act, which provides: 18 (2) A decision respecting judicial interim release may be reviewed by a judge of the court of appeal and that judge may (a) confirm the decision; (b) vary the decision; or (c) substitute any other decision that, in the judge's opinion, should have been made.

[8] Mr. Justice Lambert considered the scope of the power of review under s. 18(2) in Seifert v. Canada (Attorney General) (2002), 171 B.C.A.C. 203 at para. 6. He said: It is clearly not a hearing de novo, and I am not at liberty to conduct the hearing as if I was conducting the first hearing on the applicability of the statutory provisions. I have to decide whether the judge who made the decision reached the correct decision. I have to do that in accordance with the usual principles governing deference on findings of fact, but a requirement of correctness on matters of law or principle...

[9] This description of the standard of review is similar to the standard applied by a panel of this Court under s. 680(1) of the Code on review of the decision of a single justice on an application for judicial interim release pending appeal made under s. 679(3) of the Code. In R. v. Mapara (2001), 158 C.C.C. (3d) 312 (C.A.), Ryan J.A. for the Court, citing R. v. Wu (B.Q.) (1998), 117 B.C.A.C. 305 at para. 6, summarized the approach to such a review as follows (at para. 13): Thus, we are bound by the facts as found by the Chambers justice, but free to substitute our own conclusions for hers if we disagree that the appellant has met the statutory criteria.

[10] In my opinion, that is the proper approach on this review as well. Evidence and Submissions

[11] At the hearing before Dohm A.C.J., counsel for the United States made written and oral submissions. The written submissions included a summary of the anticipated evidence the United States would be relying on to seek Mr. Graham's extradition and a statement that the U.S. prosecutor had advised that the evidence would be available for trial.

[12] Mr. Graham was charged on April 4, 2003 in the District Court for the District of South Dakota with the murder in 1975 of Annie Mae Aquash. A warrant for his arrest was issued in the U.S. on that date. The Provisional Arrest Warrant was issued by the B.C. Supreme Court on April 30, 2003. [13] The summary of the evidence, consisting of witness interviews with Mr. Graham, his co-accused, Fritz Arlo Looking Cloud and others, identifies Mr. Graham as having fired a single gunshot to the back of Ms. Aquash's head which caused her death. Other witnesses provided evidence that Aquash was killed because she was believed to be an FBI informant. Her death is said to arise out of activities of the American Indian Movement (AIM) in the early and mid 1970s, including the occupation of Wounded Knee, South Dakota in 1973.

[14] In her written submissions, counsel for the United States provided the following information of relevance to the "primary ground" of whether Mr. Graham's detention was necessary to ensure his attendance in court.

[15] On April 4, 2003, following media reports that Mr. Looking Cloud had been arrested in Denver, Colorado on March 27, 2003, Mr. Graham's landlords were alerted to the fact that Mr. Graham had been indicted in the U.S. for murder. The landlords contacted local media. A CBC film crew arrived at Mr. Graham's residence and confronted Mr. Graham. The landlords also contacted the Vancouver Police Department, who in turn contacted the R.C.M.P. When the R.C.M.P. attended at Mr. Graham's residence early in the morning of April 5, 2003, Mr. Graham was gone.

[16] During the next eight months, the R.C.M.P. and the Department of Justice responded to requests under the Mutual Legal Assistance in Criminal Matters Act, R.S. 1985, c. 30 (4th Supp.), aimed at locating Mr. Graham. They followed up leads in Whitehorse, Saskatchewan, Alberta and various parts of British Columbia. In several interviews with Mr. Graham's common law spouse, she denied having contact with Mr. Graham or knowing his whereabouts.

[17] When Mr. Graham was arrested on December 1, 2003, he was in the company of his spouse. At that time, he had no form of identification, no fixed address and no employment.

[18] Mr. Graham has a record of three minor offences, dating back to the late 1970s.

[19] In support of her submissions that the primary ground was of serious concern, counsel for the United States referred to Ross v. United States of America (1994), 51 B.C.A.C. 1, where Wood J.A. (in chambers) stated the following principle (at para. 15): ... the courts in this country have long recognized that a correct approach to extradition proceedings is characterized by good faith in honouring Canada's international obligations; see: Schmidt v. The Queen, [1987] 1 S.C.R. 500. In my view, adherence to that principle requires a court considering a bail application such as this to limit the assumption of the risk of non-appearance more severely than might otherwise be acceptable in the case of domestic proceedings.

[20] Mr. Graham's affidavit reveals that he was born in Whitehorse in August 1955 and is an Aboriginal person registered with the Champagne and Aishihik First Nation near Whitehorse. He left the Yukon in 1999 and has lived in Vancouver since then. He states: "Until my arrest on December 1, 2003 I was not aware that there was a Provisional Arrest Warrant for me in Canada." He asserts his innocence in the death of Annie Mae Aquash, denies that he ever admitted any involvement in the crime to anyone and denies any involvement whatsoever.

[21] Counsel for Mr. Graham provided the Court with many positive character references for Mr. Graham , commenting on his close ties to his family, community and culture and his peaceful life in the Yukon.

[22] In oral submissions, counsel for Mr. Graham argued that the evidence supporting extradition is not strong and is based on innuendo and hearsay. He advised Dohm A.C.J. that Mr. Graham and others had been interviewed about this matter over a period of years and that Mr. Graham ultimately had a lawyer send a letter to U.S. officials asking them not to "continue to bother our client." He made reference to the case of Leonard Peltier and said: "This is a hot political issue that's been festering for many, many years." He asserted that Mr. Graham was not running away from anything, but was "ready and available to the authorities".

[23] Counsel then addressed the matter of sureties. The proposed sureties were relatives and friends of Mr. Graham who resided and owned property in the Yukon. Counsel submitted that since this was not a provincial matter, that should not be a problem. He asserted that, with suitable bail supervision, the primary ground, whether Mr. Graham was a "flight risk," was satisfied.

[24] Dohm A.C.J. questioned Mr. Graham's counsel about why Mr. Graham "vacated his premise" when this matter became public. Counsel responded by pointing out that Mr. Graham swore that he did not know there was a Provisional Arrest Warrant in Canada and said Mr. Graham was avoiding "media and these cooperative witnesses, they called them, who were FBI agents and U.S. marshals posing as reporters ...."

[25] Counsel for the United States addressed the "tertiary ground," whether Mr. Graham's detention was necessary in order to maintain confidence in the administration of justice. In her written submissions, she referred to the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment in the following terms: Graham is charged with first-degree murder in the execution-style killing of Aquash following her forced abduction and interrogation. Aquash's murder was a crime of calculated violence perpetrated against a defenceless victim. Public confidence in the administration of justice is invariably a relevant consideration where the offence appears to have been committed with wanton, deliberate or cruel violence, particularly against vulnerable victims: per McEachern C.J.B.C. in R. v. Nguyen [(1997), 119 C.C.C. (3d) 269 (B.C.C.A.)] at para. 23. Put another way, the tertiary ground is intended to address horrific and inexplicable crimes such as the offence in the present case: per McLachlin C.J.C. in R. v. Hall [(2002), 167 C.C.C. (3d) 449 (S.C.C.)] at para. 40.

[26] Counsel for Mr.Graham responded that the supporting material filed on behalf of Mr. Graham showed that the administration of justice would not be tarnished by his release. He emphasized again the lack of apparent strength of the prosecution's case, even taking into account the low threshold of the "Shephard" test applicable on the committal hearing, which requires the prosecution to show only a prima facie case similar to that applied on a preliminary hearing for an indictable offence (see United States of America v. Shephard, [1977] 2 S.C.R. 1067; Seifert at para. 10).

[27] Dohm A.C.J. responded to the submissions of counsel with terms he was "thinking about" for release. It was important that the sureties have property and Mr. Graham have a permanent residence in British Columbia. He stated: "there would have to be also probably $25,000 cash put up by no less than five persons who would be available to escort. . . your client as is required." The Court and counsel for the United States would have to be satisfied with the residence and the five individuals. Mr. Graham would be "housebound" except for attending counsel's office, the bail supervisor and court, and on any of those occasions one of the five individuals would accompany him. Dohm A.C.J. also suggested electronic monitoring. The hearing was then adjourned.

[28] When the hearing resumed on January 15, 2004, counsel for Mr. Graham advised Dohm A.C.J. that supporters of Mr. Graham had raised $25,500 from more than five individuals, primarily from members of Mr. Graham's family. He also provided a list of five sureties, who the R.C.M.P., on behalf of counsel for the United States, had determined were members of the community of good character. There was no evidence of the financial circumstances of the proposed sureties or whether they owned property in British Columbia.

[29] Counsel for the United States pointed out that there was a defence fund set up for Mr. Graham on the internet and that monies had been raised from all over the world. She suggested that the persons putting up the cash did not have a real financial interest in the attendance of Mr. Graham at his extradition hearing. Dohm A.C.J. disagreed, and accepted the $25,500 cash deposit from the persons who had provided it and required each of the five sureties to become liable for $10,000, without deposit or security.

[30] Counsel for the United States objected to the proposed residence of Mr. Graham, pointing out that he had resided with that individual during part of the eight months between the issue of the Provisional Arrest Warrant and his arrest. Dohm A.C.J. agreed, and an alternative residence, with one of the five sureties, was approved.

[31] Counsel advised Dohm A.C.J. that electronic monitoring was not available. He did not comment on that in his ruling. He proceeded to impose the other terms and conditions of Mr. Graham's release. Review

[32] On this review, counsel for the United States relies on her submissions made on Mr. Graham's application for release. She does not identify any particular error in principle (which is not surprising in the absence of reasons for the ruling), but simply claims that Dohm A.C.J. erred in ordering Mr. Graham's release because Mr. Graham had failed to show cause why his detention in custody is not justified on the primary and tertiary grounds.

[33] On this review, in the absence of reasons, Dohm A.C.J.'s findings of fact must be inferred from the order releasing Mr. Graham. He must have accepted Mr. Graham's evidence that he did not know about the Provisional Arrest Warrant during the eight months that it was outstanding prior to his arrest and did not have the intent to "go underground" or evade arrest during that time but was attempting to avoid the media and continued questioning by U.S. authorities.

[34] The fact that Mr. Graham will likely face life imprisonment in the United States if convicted provides an obvious motive for Mr. Graham to take steps to avoid his extradition. It must be assumed that Dohm A.C.J. recognized that, and the principle set out in Ross, in crafting the restrictive terms and conditions of Mr. Graham's release. Furthermore, Dohm A.C.J. must have accepted the bona fides of those who posted the cash and the five sureties who have committed themselves not only financially but also personally to the conditions of the recognizance by providing, in one case, a residence for Mr. Graham, and in the case of the other four, supervision when Mr. Graham leaves his residence. He must have concluded that as law-abiding citizens, the sureties would abide by the conditions imposed on them.

[35] From my review of the evidence, I am of the opinion that it was open to Dohm A.C.J. to conclude that Mr. Graham had satisfied the onus on him to show that his detention was not necessary to ensure his attendance in court.

[36] I am also of the opinion that Mr. Graham's detention is not necessary to maintain confidence in the administration of justice. McEachern C.J.B.C. (as he then was) discussed the meaning of this phrase in R. v. Nguyen (1997), 119 C.C.C. (3d) 269 (B.C.C.A.). From his review of the authorities, he concluded (at para. 18): The principle that seems to emerge is that the law favours release unless there is some factor or factors that would cause "ordinary reasonable, fair-minded members of society" (per O'Grady [R. v. Gerald Lawrence O'Grady, [1997] B.C.J. No. 1399 (C.A.)] at 4), or persons informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case (per R. v. K.K. [(1997), 113 C.C.C. (3d) 51 (B.C.C.A.)] at 54), to believe that detention is necessary to maintain public confidence in the administration of justice.

[37] Reasonable fair-minded and informed persons would consider the factors set out in s. 515(10)(c) of the Code. They would acknowledge the serious gravity of the nature of the offence, the circumstances surrounding its commission, and the potential for a lengthy period of imprisonment. On the other hand, such reasonable persons would also be aware, in assessing the strength of the prosecution's case, of the underlying historical and "political" aspects of the evidence of Mr. Graham's involvement in this murder. They would consider that Mr. Graham has no history of serious criminal activity, he has the support of his own and a broader community, and there is little or no likelihood that he will be involved in any act of violence while released. Taking into account that "the law favours release" (Nguyen at para. 18), such reasonable fair-minded and informed persons would not lose confidence in the administration of justice because of Mr. Graham's release.

[38] In all of these circumstances, I am of the opinion that Dohm A.C.J. made no error in principle in concluding that Mr. Graham's detention was not necessary on either the primary or tertiary grounds of s. 515(10) of the Code. [39] For all of the above reasons, I dismiss this application for review.

The Honourable Madam Justice Levine.

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