Court File and Parties
Court of Appeal for Ontario Date: 20220315 Docket: M53253 (C70377)
Roberts J.A. (Motions Judge)
Between: The Attorney General of Canada on behalf of the United States of America, Applicant (Responding Party)
And: Samantha Curow, Respondent (Moving Party)
Counsel: Patrick J. Ducharme, for the moving party Christopher Bundy, for the responding party
Heard: March 8, 2022 by video conference
Endorsement
[1]
Overview
Ms. Curow seeks interim judicial release pending her appeal of the March 2, 2022 order made by Conlan J. This order committed her into custody to await the Minister of Justice’s decision on surrender under the Extradition Act, S.C. 1999, c. 18, as amended. Ms. Curow is sought for extradition to the United States for prosecution for extortion. This charge arises out of Ms. Curow’s alleged participation in attempts to extort money from a celebrity athlete in consideration for the agreement not to publish a highly compromising videotape. Two sex workers had filmed a sexual encounter with the athlete. According to the Record of the Case (“ROC”), afterwards, one of the women, Alexandra Wells, contacted Ms. Curow for advice on how to extort the athlete for money using the videotape as leverage. She will testify that Ms. Curow then reached out to the athlete via text message and telephone and demanded $2,000,000 in exchange for not publishing the video.
2Ms. Curow’s appeal from the committal order has not yet been perfected and no hearing date for the appeal has been scheduled.
[3]
The Test for Interim Release
To obtain interim judicial release, in accordance with s. 20 of the Extradition Act, Ms. Curow must satisfy the following criteria under s. 679(3) of the Criminal Code, R.S.C., 1985, c. C-46:
i. The appeal is not frivolous; ii. The appellant will surrender into custody as required by the terms of the release order; and iii. The appellant’s detention is not necessary in the public interest.
4The Crown opposes this application. While conceding that Ms. Curow has met her onus on the latter two criteria, the Crown argues that she has not demonstrated that her appeal is not frivolous.
[5]
Analysis
Ms. Curow submits that her appeal is meritorious. She argues that the application judge erred in his application of the test for committal because there was no admissible evidence in the ROC that could, if believed, result in Ms. Curow’s conviction. According to Ms. Curow, the ROC of the Case establishes that Ms. Curow was not involved in the sexual activity or the filming of that activity with the victim’s consent, and that there was no evidence of extortion on her part: rather, she merely acted as a mediator between the parties in order to try to assist the victim to recover the damaging tape. Moreover, the evidence of the two witnesses who implicate Ms. Curow, Ms. Wells and Malisha Brooks (who is believed to be involved in the extortion attempt), is so unreliable that it should have been disregarded by the application judge.
6I am not persuaded by these submissions. Although I appreciate that the bar is low, Ms. Curow has failed to demonstrate that her appeal is not frivolous. An appeal is not frivolous if it raises an arguable issue or ground of appeal: United States v. Viscomi, 2014 ONCA 879, 315 C.C.C. (3d) 530, at para. 13. Ms. Curow’s appeal does not meet this standard.
7The application judge applied the correct test for an order of committal as articulated under s. 29(1) of the Extradition Act. First, he determined that there was available and reliable evidence of conduct by Ms. Curow that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the Authority to Proceed, namely extortion contrary to s. 346(1) of the Criminal Code. Second, he was satisfied that there was evidence in the ROC that was reasonably capable of supporting the inference that Ms. Curow was the person who committed the alleged offence and was the person named in the ROC (Ms. Curow did not dispute the latter point).
8The application judge appropriately followed the guidance set out by the Supreme Court of Canada in M.M. v. United States of America, 2015 SCC 62. As he recognized, his role was to determine whether there was a prima facie case of extortion and not to conduct a trial. As he also noted, the starting point was to consider the certified evidence in the ROC to be presumptively reliable. That presumption could only be rebutted by evidence that showed fundamental inadequacies or defects in the ROC and where the evidence was so defective or so manifestly unreliable that it would be dangerous or unsafe to act on it: see M.M., at paras. 40, 63.
9That was not the case here. I agree with the application judge’s assessment that the ROC set out sufficient evidence of Ms. Curow’s alleged involvement in the offence. This evidence was unchallenged by any evidence from Ms. Curow. The anticipated witness evidence includes that from the victim of the extortion attempts, his former partner, the FBI personnel involved in the investigation, and the two co‑participants in the scheme (Ms. Wells and Ms. Brooks). These witnesses are likely to testify that Ms. Curow carried out the offence by calling and texting the victim with demands for money in exchange for the non-publication of the video, using a telephone number that was associated to her and her Instagram account. Both Ms. Wells and Ms. Brooks identified Ms. Curow as “Staci”, someone they both knew before the extortion attempts. They also identified her telephone number. Ms. Wells identified Ms. Curow’s photo from her Instagram page “@realstacidoll”. Ms. Brooks, who will testify that Ms. Curow recruited her participation, has as a contact “Staci” in her cellular phone with the same telephone number used in the extortion attempts and listed on Ms. Curow’s Instagram page.
10In essence, Ms. Curow submits that the application judge should have undertaken the kind of analysis that is reserved for trial. She argues that he should have assessed the credibility and reliability of the witnesses who implicated her in the extortion attempts and that he should have accepted her characterization of the telephone calls and texts. As already noted, that was not his role on the committal application. As he was required to do, the application judge carried out a limited weighing of the evidence to assess whether it was reasonably capable of supporting the inferences the trier of fact will be asked to make; it was not his task to weigh competing inferences: Viscomi, at paras. 16, 20. Ms. Curow has not identified any arguable error in the application judge’s analysis or reasons that could possibly warrant appellate intervention.
[11]
Disposition
As a result, the motion for interim judicial release is dismissed.
12The parties agree that this appeal should be expedited. The parties may request an expedited date from the appeals scheduling office.
“L.B. Roberts J.A.”