The Attorney General of Canada (on behalf of the United States of America) v. Viscomi

[Indexed as: United States of America v. Viscomi]

Ontario Reports

Court of Appeal for Ontario

MacPherson, D.M. Miller and Paciocco JJ.A.

June 14, 2019

146 O.R. (3d) 145 | 2019 ONCA 490

Case Summary

Charter of Rights and Freedoms — Fundamental justice — Disclosure — Appellant seeking disclosure of notes and investigative reports of police officers involved in Canadian investigation to support Charter challenge to search warrants at extradition hearing — Extradition judge not erring in dismissing application on basis that there was no realistic possibility that further disclosure could affect outcome of extradition proceedings — Refusal of further disclosure not resulting in unfair extradition hearing.

Charter of Rights and Freedoms — Mobility rights — Extradition — Minister ordering Canadian appellant's surrender for extradition to United States to stand trial on charges arising from Internet luring and sexual exploitation of two American children — Minister not erring in finding that appellant's surrender would not violate his rights under s. 6(1) of Charter — Canadian Charter of Rights and Freedoms, s. 6(1).

Charter of Rights and Freedoms — Search and seizure — Search with warrant — Virginia police obtaining subscriber information from Internet Service Provider for IP address used in exploitive communications with children and sharing information with Ontario police — Ontario police using information to obtain search warrants — Appellant being ordered committed for extradition to United States to stand trial on charges of Internet luring and child exploitation — Record of the case ("ROC") being based entirely on evidence gathered in US — Court of Appeal quashing committal order on basis that ROC contained insufficient information to support inference that appellant was user of IP address in question — Appellant being ordered committed again on basis of second ROC which contained evidence gathered in Canada — Extradition judge correctly rejecting appellant's argument that information to obtain search warrants did not set out sufficient basis for issuance of warrants.

Criminal law — Extradition — Rule against specialty — Minister ordering appellant's surrender to United States to stand trial on charges of Internet luring and child exploitation — Minister reasonably finding that rule against specialty did not preclude American prosecutors from relying on uncharged conduct as aggravating factor in sentencing.

Criminal law — Extradition — Surrender order — Minister ordering appellant's surrender to United States to stand trial on charges of Internet luring and child exploitation — Appellant facing potential sentence of life imprisonment if convicted — Minister's decision that appellant's surrender would not shock conscience of Canadians being reasonable — Minister also reasonably finding that it would not be unjust or oppressive and would not violate s. 7 of Charter to surrender appellant for extradition to United States without assurances that he would not be subject to civil commitment proceedings — Canadian Charter of Rights and Freedoms, s. 7.

Facts

The United States sought the extradition of the appellant to stand trial in Virginia for Internet luring and child exploitation offences involving two American children who lived in Virginia. The Virginia police shared with the Ontario Provincial Police subscriber information from an Internet Service Provider for an IP address associated with the exploitive communications. The Ontario police used that information to obtain a search warrant for a residence which turned out to be the appellant's family home. They found no evidence when they executed the warrant, but they were told that the appellant had moved, taking his laptop computer with him. The police obtained and executed a search warrant for the appellant's new residence and seized a laptop and external hard drive. The appellant was charged with criminal offences in Ontario, but those charges were later withdrawn in favour of the extradition request. The appellant was committed for extradition, and the Minister of Justice ordered his surrender. The record of the case contained only evidence gathered in the United States. The Ontario Court of Appeal, in Viscomi #1, quashed the committal order on the basis that the ROC contained insufficient information to support an inference that the appellant was in fact the user of the IP address that was associated with the acts of exploitation. The appellant was served with a second ROC which relied on both the Canadian and US-gathered evidence. He applied unsuccessfully for disclosure of the notes and investigative reports of the police officers involved in the Canadian investigation in support of a Charter challenge to the Ontario search warrants. The extradition judge held that what was required was sufficient disclosure to permit the appellant to mount a meaningful challenge to the admissibility of the evidence, that more than adequate disclosure had already been made, and that there was no realistic possibility that further disclosure could affect the outcome of the extradition proceedings. The extradition judge also dismissed the appellant's application to quash the Canadian search warrants and exclude evidence under s. 24(2) of the Charter. The appellant was committed for extradition a second time, and the minister ordered his unconditional surrender. The appellant appealed the committal order and applied for judicial review of the surrender order.

Held

The appeal and the application should be dismissed.

Per Miller J.A. (MacPherson J.A. concurring)

A. Overview

[1] The United States of America seeks the extradition of the appellant to stand trial in Virginia for Internet luring and child exploitation offences. The offences relate to Internet communications with a 17-year-old girl on January 5-6, 2012. A series of communications on various platforms culminated in the perpetrator threatening and extorting the girl into engaging in a series of sexual and sexually violent acts with her 13-year-old sister.

[2] From information retrieved from the computer used by the children complainants, the Virginia Beach Police were able to determine that the perpetrator's electronic communications with the children were made via a ten-digit Internet Protocol ("IP") address that was assigned by a residential Internet Service Provider ("ISP") in Ontario to one of its account subscribers. The ISP advised Virginia Beach Police that the IP address was assigned to an account holder named "Mark Viscomi" and provided his subscriber information, including his billing address. The Virginia Beach Police shared this information with the Ontario Provincial Police ("OPP"), who determined from a search of an Ontario driver's licence database that a licence-holder named "Marco Viscomi" had listed the same address as his residential address. It also determined that the phone number associated with the account was registered to "S. Viscomi". The OPP attended at the residence and determined that a vehicle parked in the driveway was registered to "Salvatore Viscomi" at the same address.

[3] Based on this evidence, the OPP swore an information to obtain a search warrant for the Stouffville residence (the "Stouffville ITO"), which it obtained on March 21, 2012 and executed the same day. The OPP seized items from the Stouffville residence including a computer that was subsequently determined not to have been used since 2008. The OPP determined that the Stouffville residence was the Viscomi family home. They were advised by the appellant's sister that the appellant had left that residence on March 18 to live at a residence in Chatham-Kent, and that he had taken his laptop with him. The OPP concluded that the laptop likely contained evidence of the Internet child abuse, swore a second ITO (the "Chatham ITO") and obtained a warrant to search the Chatham-Kent residence. At the Chatham-Kent residence they seized a laptop and an external hard drive.

[4] The appellant was arrested and charged with various criminal offences. Those charges were later withdrawn in favour of the extradition request, and on August 16, 2012, the appellant was detained pending an extradition hearing.

[5] The evidence obtained from the American and Canadian sources included:

• the Skype name and account name used by the individual who had been communicating with the victims;
• the IP address associated with that individual;
• the subscriber information for the IP address, identifying Mark Viscomi as the subscriber, with a billing address in Stouffville, Ontario;
• that the IP address was a static IP address assigned exclusively to that subscriber;
• that the home address for Marco Viscomi, taken from the Ontario driver's licence database, matched the ISP's billing address for Mark Viscomi;
• the appellant's sister's information to the OPP, given during the execution of the warrant at the Stouffville address, that the appellant had moved out a few days earlier and gone to a new address in Chatham-Kent, Ontario, taking his laptop with him; and
• the laptop and hard drive seized from Viscomi's Chatham-Kent residence, which contained the following data:
  • six thumbnail images of the two victims; in three of the images either or both of the victims are topless exposing their breasts to the camera;
  • copies of documents in the name of Mark Viscomi including a driver's licence, a medical indemnity card, school enrollment letter and passport;
  • images of Viscomi in front of a webcam; and
  • videos of Viscomi with a woman.

B. History of Proceedings

[6] After an extradition hearing, the appellant was ordered committed for extradition (the "first committal order"). The United States had presented a Record of the Case (the "2012 ROC") based entirely on evidence gathered by police in the United States, and not relying on any of the Canadian-gathered evidence from the searches of the Stouffville or the Chatham-Kent residences.

[7] Subsequently, the Minister of Justice ordered his surrender to the United States.

[8] This court quashed the first committal order on appeal on June 30, 2015, in United States of America v. Viscomi (2015), 126 O.R. (3d) 427, [2015] O.J. No. 3448, 2015 ONCA 484 ("Viscomi #1"), on the basis that the 2012 ROC contained insufficient information to support an inference that the appellant was in fact the user of the IP address that was associated with the acts of exploitation.

[9] The appellant was then re-arrested and served with a second ROC dated July 24, 2015 (the "2015 ROC"), which relied on both the Canadian and US-gathered evidence. He brought an application for disclosure additional to what he had been provided following his initial arrest on domestic criminal charges. That application was dismissed. He also brought an application to exclude evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms, on the basis of violations of his ss. 8, 9 and 10(b) Charter rights relating to the searches of the Stouffville and Chatham-Kent residences. That application was also dismissed.

[10] The appellant was ordered committed for extradition a second time, on October 25, 2016 (the "second committal order"), and on August 15, 2017, the Minister of Justice ordered the appellant's unconditional surrender to the United States (the "second surrender order").

[11] The appellant now appeals the second committal order and seeks judicial review of the second surrender order.

C. Issues

[12] With respect to the appeal of the committal order, the appellant argues that the extradition judge made three errors:

(1) failing to quash the search warrants; (2) applying the wrong test for disclosure; (3) making a disclosure ruling that resulted in an unfair hearing, because of inability to mount a s. 24(2) argument.

[13] With respect to the application for judicial review of the surrender order, the appellant argues that the Minister's order ought to be quashed on the basis that

(1) the Minister erred in concluding that surrender to the United States in the circumstances would not infringe s. 7 of the Charter; (2) the Minister erred in concluding that reliance on uncharged conduct would not violate the rule of specialty in art. 12 of the Treaty on Extradition Between the Government of Canada and the Government of the United States of America, 3 December 1971, C.T.S. 1976 No. 3 (entered into force 2 March 1976) (the "Treaty"); (3) the Minister's order for surrender is unjust without assurances from the United States that it would not (a) use extrinsic evidence obtained from his computer as a basis for prosecution, and (b) subject the appellant to civil commitment proceedings with the potential for indefinite detention; and (4) the Minister's order is an unjustified limit on the appellant's s. 6(1) Charter right to remain in Canada.

D. Analysis

(1) The appeal of the second committal order

[14] The appellant challenged the committal order on the basis that (a) the search warrants were invalid and ought to have been quashed; (b) the committal judge applied the wrong legal test in deciding not to order further disclosure; and (c) the appellant faced an unfair hearing of whether the evidence obtained in violation of his Charter rights should be excluded under s. 24(2) because of the absence of additional disclosure.

(a) The search warrants: reasonable and probable grounds

[15] The appellant brought an application seeking to exclude the Canadian-gathered evidence from the committal proceedings. He argued that the search warrants were obtained in a manner that violated s. 8 of the Charter, and that both the detention of the seized items under s. 489.1 of the Criminal Code, R.S.C. 1985, c. C-46 and the conduct of the police violated ss. 8, 9 and 10 of the Charter. He argued that the evidence should be excluded under s. 24(2) of the Charter.

[16] First, the appellant argues that the ITOs did not establish reasonable and probable grounds to believe that evidence of the offence would be found at either the Stouffville or Chatham-Kent residences. The fruits of the searches, according to the appellant, were therefore obtained in a manner which infringed his s. 8 Charter right to be free from unreasonable search or seizure.

[17] The appellant argues that the reasoning of the panel in Viscomi #1 -- on the question of whether the evidence in the 2012 ROC was sufficient to support a committal for extradition -- is also dispositive of whether search warrants could have been issued based on the Stouffville and Chatham ITOs.

[18] In Viscomi #1, this court held that the extradition judge erred by accepting that the ROC established that the IP address used to commit the offences was accessed from a device at the billing address for that account. This court held that the ROC did not indicate whether an IP address is for a particular subscriber, a particular device, or even whether it is limited to one particular residential location. The extradition judge further erred by drawing the inference that the account holder -- Mr. Viscomi -- was the user of the IP address at the time the offences were committed.

[19] The appellant relies on Viscomi #1 to argue that in this case, the information in the 2015 ITO mirrors that in the 2012 ROC, and suffers from the same shortcoming: it contains no information on what an IP address is, how it works, or any evidence that could identify from what physical location an IP address was used. The appellant argues that the inferences that he was the user of the IP address and that the IP address was accessed from the Stouffville location both fail.

[20] The extradition judge rejected this argument. What was at issue before him on the application was not, as in Viscomi #1, whether there was sufficient evidence capable of linking Mr. Viscomi to the crime. The issue before him was whether the affiants in the ITOs demonstrated reasonable and probable grounds to believe that an offence had been committed, and that there was evidence with respect to the commission of the offence to be found at the places to be searched.

[21] The extradition judge was satisfied that the ITOs provided reasonable grounds to believe each of these things. I agree.

[22] I recognize that there was no information in the ITO as to whether this particular IP address, from this particular ISP, was static or fixed -- that is, whether it was always assigned to the same account, or whether it was periodically re-assigned. However, the Stouffville ITO explained that IP addresses could be static or dynamic, and the ITO contained information about markedly similar offences committed by an individual using the usernames "Johnny Wright" and "Jamie Paisley" -- the username associated with the Virginia offences -- on various dates between December 6, 2011 and January 24, 2012, using the same IP address. Given the similar criminal conduct associated with this same IP address, it was reasonable for the issuing justice to conclude that the IP address was either a static address or a dynamic address that did not change with every login, and that the same person used the same IP address at the same physical location to commit both offences.

[23] Furthermore, the issuing justice did not err in inferring that a subscriber's billing address and the physical location from which the IP address was accessed would likely be the same. This was a logical and available inference. The decision of this court in Viscomi #1 does not hold otherwise.

[24] There were therefore grounds upon which the issuing justice could have concluded that one or more devices used to commit the offence would be present at the Stouffville residence. On executing the Stouffville ITO, the only computer located had not been used since 2008. It therefore could not have been used to commit the offences. It was reasonable to believe that whatever device had been used to commit the offences was no longer there. The additional evidence referenced on the Chatham ITO, that the appellant had just moved to the Chatham-Kent address and had taken his laptop with him from the Stouffville residence, provided a basis for the issuing justice to conclude that evidence of the offence would be found on the laptop or other media storage devices or both, and that the laptop and any media storage devices would be found at the Chatham-Kent residence. The extradition judge did not err in concluding that the search warrants could reasonably have issued and that there was no violation of s. 8 of the Charter on that basis.

(b) Additional disclosure: The wrong test

[25] The appellant brought an application for additional disclosure, seeking the contemporaneous notes and investigative reports of police officers involved in the Canadian investigation. The disclosure was sought to support a s. 8 challenge to the issuance of the search warrants, as well as for Charter challenges to the police conduct in executing the search warrants, including under ss. 9 and 10(a), and in dealing with the seized material.

[26] The appellant argued that he was entitled to the same level of disclosure as would be afforded on a Charter voir dire within a domestic trial. The extradition judge, however, dismissed the application on the basis that Stinchcombe-like disclosure was not required on an extradition hearing, which does not determine guilt or innocence and is intended to move expeditiously. The extradition judge applied "somewhat less stringent" criteria for disclosure than articulated in R. v. Larosa, holding that what was required was sufficient disclosure to permit the appellant "to mount a meaningful challenge to the admissibility of the evidence".

[27] The extradition judge held that given the disclosure the appellant was provided -- including the ITOs, the notes of the affiant from the day of execution of the warrants, and the reports of the forensic examinations of the computers -- he had "more-than-adequate disclosure to permit him to challenge the admissibility of the Canadian-derived evidence based on issues properly raised at this committal stage of the extradition process". The extradition judge was "satisfied that there [was] no realistic possibility that further disclosure could affect the outcome of the extradition application".

[28] The appellant argues that in refusing the application, the extradition judge applied the wrong test for disclosure for an extradition hearing by relaxing the Larosa criteria such that the "air of reality" assessment was not made in relation to whether there had been a breach of the appellant's Charter rights, but whether the further disclosure "could affect the outcome of the extradition application".

[29] The appellant argued that the appropriate test was articulated in dicta of Charron J. in United States of America v. Anekwu, [2009] 3 S.C.R. 3, [2009] S.C.J. No. 41, 2009 SCC 41, at para. 29, which states that Canadian-gathered evidence must comply with the Canadian rules of evidence, including the Charter, and where there is an air of reality to Charter breaches alleged by the appellant, the extradition judge may order production of relevant materials. The appellant argues that in this case there is an air of reality to the alleged breaches, that evidence obtained thereby was relied on in the ROC, and the appellant is therefore entitled to disclosure of all materially relevant police disclosure that otherwise would be disclosed in a domestic criminal trial.

[30] As the Crown argues, however, even where these factual preconditions are met and the applicant has demonstrated an air of reality to a Charter claim for the exclusion of evidence, the decision to order further disclosure remains discretionary: see United States of America v. McAmmond, [2005] O.J. No. 8, 192 C.C.C. (3d) 149 (C.A.), at para. 31; United States of America v. Kwok, [2001] 1 S.C.R. 532, [2001] S.C.J. No. 19, 2001 SCC 18, at para. 102. The extradition judge was well-versed in the long and complex procedural history of this case. There is a high burden to overturning an extradition judge who is exercising a discretion as to how to best control the proceedings. Absent a clearly identifiable error in the application of the law, a material misrepresentation of the relevant evidence, or a result that is clearly wrong in the sense that it is not defensible on an application of the relevant law to the facts, this court is required to defer to the extradition judge: see United States of America v. Mathurin (2015), 127 O.R. (3d) 136, [2015] O.J. No. 4487, 2015 ONCA 581, at para. 38. In my view, the approach taken by the extradition judge was one that was open to him. Based on his review of the evidence before him, and taking the submissions of the appellant at its highest, the extradition judge concluded that there was no path to the remedy sought by the appellant: the exclusion of evidence under s. 24(2). On this basis, and given the expedited nature of extradition proceedings, I see no basis on which to interfere with the extradition judge's exercise of discretion.

(c) Did the ruling on disclosure application result in an unfair hearing?

[31] As the extradition judge noted, because the information contained in the second ROC presented such a compelling case for extradition, everything turned on the admissibility of the Canadian gathered evidence. The appellant had advanced several Charter breaches, including breaches related to arbitrary detention without counsel, overseizure, unauthorized forensic searches of the laptop and external hard drive, and continued detention of seized items.

[32] The appellant argued that he was deprived of the ability to access and test evidence necessary to establish the scope of the alleged Charter breaches, and to probe factors relevant to a s. 24(2) analysis that were known only to the police. Some of the records the appellant sought by way of additional disclosure, such as the handwritten notes made by the arresting officers, he ultimately obtained by way of freedom of information requests. Additionally, there was a significant delay in the return of digital media storage devices seized from the Chatham-Kent residence, well beyond the 90 days permitted in the detention order, which the appellant argued prejudiced him by facilitating the gathering and sending of the digital media storage devices to the American authorities pursuant to a Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) request.

[33] The extradition judge rejected all of the Charter claims, with the exception of the claim of the ss. 9 and 10 breaches consequent to the appellant's arbitrary detention for about two hours outside of the Chatham-Kent residence without access to counsel. For the purpose of the extradition judge's s. 24(2) analysis, he assumed the ss. 9 and 10 breaches without deciding the issue. The extradition judge proceeded in this fashion because of his prior ruling on disclosure. The Crown denied that the appellant had been detained at all during the search of the Chatham-Kent residence, and brought a motion to have the appellant's application dismissed on the basis that there was no admissible evidence to support it. The extradition judge dismissed the Crown's motion and assumed the breach, on the basis that given his decision to refuse to order additional disclosure, the appellant was not in an evidential position to argue the application.

[34] The extradition judge's key findings with respect to the s. 9 and 10 challenge are as follows:

I have concluded that there were no breaches of s. 8 of the Charter. I have held that I am prepared to presume that Mr. Viscomi was detained for a relatively brief period of time while his apartment in Chatham-Kent was being searched. I have indicated that on the record before me, I cannot conclude that any caution that was given upon his detention was in Charter-compliant language. I held, however, that any breaches of sections 9 and 10 of the Charter were not serious; that the police conducted themselves responsibly and in good faith; and that any statements that may have been made by Mr. Viscomi had no bearing whatsoever either on the search or on any other aspect of the investigation.

[35] The extradition judge thus proceeded to a s. 24(2) analysis on the basis of a single assumed Charter breach that he found not to have been serious.

[36] The appellant argued that the approach was unfair and in error.

[37] I disagree. The extradition judge determined, based on his review of the record, that there was no reasonable prospect for success on the application; the evidence would not have been excluded on a s. 24(2) analysis. He was not required to do anything further. The presumed infringements were minimally serious, and their impact on the appellant was minimal. The appellant, who was of course present, chose not to adduce any evidence to the contrary. The evidence obtained was "real, relevant, and reliable", and the societal interest in prosecution was high: "[t]he allegations involve serious predatory cross-border sexual exploitation of children over the internet". The approach followed by the extradition judge is supported by R. v. Kutynec (1992), 7 O.R. (3d) 277, [1992] O.J. No. 347 (C.A.), at pp. 287-89 O.R., which states that where a summary of the anticipated evidence "reveals no basis upon which the evidence could be excluded, then the trial judge need not enter into an evidentiary inquiry". There was no unfairness in the manner in which the extradition judge proceeded.

(2) Judicial review of Minister's order

[38] After the appellant was ordered committed for extradition, he requested that the Minister of Justice exercise her discretion under s. 44(1)(a) of the Extradition Act, S.C. 1999, c. 18, on the basis that it would be unjust and oppressive to surrender him to the United States. He sought a discharge under s. 48 of the Act.

[39] The Minister refused the request and ordered the appellant's surrender, providing her reasons by way of a letter dated August 15, 2017. The appellant seeks judicial review of the Minister's decision.

[40] He has articulated four grounds of review:

(1) surrender to the United States would violate s. 7 of the Charter because the likely sentence the appellant would receive in the United States would "shock the conscience" of Canadians; (2) potential reliance by the United States on uncharged conduct (other than the charges for which the surrender order was obtained) to prosecute or sentence the appellant would violate the rule of specialty or art. 12 of the Treaty; (3) an unconditional surrender order in the circumstances of potential indefinite civil detention would violate s. 7 of the Charter and the rule of specialty or art. 12 of the Treaty; (4) surrender to the United States would violate the appellant's s. 6(1) Charter right to remain in Canada.

[41] The Minister's decision to order surrender is subject to judicial review on a standard of reasonableness: India v. Badesha, [2017] 2 S.C.R. 127, [2017] S.C.J. No. 44, 2017 SCC 44, at para. 39. Provided that the Minister applies correct legal principles, her conclusions are entitled to deference unless they are unreasonable. A decision is not unreasonable simply because a court would have come to a different conclusion had it been the original decision-maker.

[42] For the reasons that follow, I do not agree that that the Minister's decision is unreasonable.

(a) Shock the conscience

[43] As the Supreme Court explained in United States of America v. Burns, [2001] 1 S.C.R. 283, [2001] S.C.J. No. 8, 2001 SCC 7, at para. 68, the question of whether an extradition would "shock the conscience" of Canadians is not an empirical question but a normative one. It duplicates the ultimate question: "whether or not the extradition is in accordance with the principles of fundamental justice".

[44] Case law has established that unless a potential treatment under the criminal justice system of the requesting state would be "simply unacceptable" or "unjust or oppressive", a person sought for extradition must be answerable to the criminal law and procedure of the requesting state, notwithstanding that the law of the requesting state may be substantially different from our own: Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, [1991] S.C.J. No. 63, at pp. 844-45, 849-50 S.C.R.; Badesha, at paras. 35, 40-43; Burns, at paras. 72-73.

[45] Disparities in sentencing between Canada and the requesting state -- even significant disparities -- do not provide, without more, a sufficient basis for judicial interference with a Minister's decision to surrender for extradition: Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761, [2008] S.C.J. No. 23, 2008 SCC 23, at para. 48; United States of America v. Jamieson, [1996] 1 S.C.R. 465, [1996] S.C.J. No. 24; United States of America v. Whitley (1994), 20 O.R. (3d) 794, [1994] O.J. No. 2478 (C.A.), affd , [1996] 1 S.C.R. 467, [1996] S.C.J. No. 25; Ross v. United States of America, [1994] B.C.J. No. 2215, 119 D.L.R. (4th) 333 (C.A.), affd , [1996] 1 S.C.R. 469, [1996] S.C.J. No. 26. As this court recently stated in United States of America v. Lane (2017), 138 O.R. (3d) 167, [2017] O.J. No. 2621, 2017 ONCA 396, 349 C.C.C. (3d) 311, at para. 87, "absent a potential death penalty or a sentence that would involve some form of torture", the mere fact that a sentence is more severe in the requesting state than in Canada would not make an extradition contrary to the principles of fundamental justice.

[46] With respect to the appellant's circumstances, the Minister took note that the appellant could potentially face a life sentence in the United States. But as the Minister also noted, the appellant was initially charged with corresponding Canadian offences that also carry a potential penalty of up to life imprisonment. In any event, the determination of whether a potential sentence is so severe as to be fundamentally unjust, is not established by a simple quantitative comparison of the relative lengths of foreign and domestic sentence ranges. Significantly, the appellant has not provided any case law in which the length of the foreign sentence was found to constitute such an extreme punishment that it infringed s. 7.

(b) Reliance on uncharged conduct

[47] As this court observed in Canada (Minister of Justice) v. Everard (2005), 74 O.R. (3d) 363, [2005] O.J. No. 468 (C.A.), at para. 30, the rule of specialty, reflected in art. 12 of the Treaty, precludes prosecution or punishment for any offence committed before surrender, other than the offence for which the accused was surrendered.

[48] The appellant's concern relates to evidence of extrinsic conduct summarized in the 2015 ROC -- evidence that did not relate to the commission of the offence for which extradition is sought, but of other, similar offences -- taken from forensic examinations of the seized digital media by Canadian and US officials. The appellant argues that although committal was only ordered on the Virginia offences, the rule against specialty nevertheless requires that the Minister obtain assurances that the evidence of the extrinsic conduct not be used to prosecute or sentence the appellant.

[49] The Minister concluded that the rule against specialty prohibits the requesting state from prosecuting for crimes other than which the extradition took place. Article 12 specifies that a person "shall not be detained, tried or punished . . . for an offense other than that for which extradition has been granted". The Minister has taken the position that it would not violate the rule for the American prosecuting authorities to rely on uncharged conduct as an aggravating factor in sentencing on a conviction for the crimes for which the appellant is committed for extradition.

[50] The Minister declined to seek assurances against reliance by the United States on evidence about other victims on sentencing, noting that Canadian courts are similarly entitled in sentencing to take into account surrounding circumstances that could support a separate charge: United States of America v. Logan, [2015] N.B.J. No. 225, 2015 NBCA 59, 329 C.C.C. (3d) 254, at para. 59, leave to appeal to S.C.C. refused [2015] S.C.C.A. No. 503; see also United States of America v. Fordham, [2005] B.C.J. No. 730, 2005 BCCA 197, 196 C.C.C. (3d) 39, at paras. 14-17. To decline to seek assurances in these circumstances is not unreasonable.

(c) Possibility of civil commitment

[51] The appellant submitted to the Minister that it would be unjust and oppressive to surrender him to the United States without assurances that he would not be subject to civil commitment proceedings in the US, which carry the potential for indefinite detention following the completion of the criminal proceedings and any related sentence on conviction. Civil commitment is an administrative process that allows for a "sexually dangerous person" to be held in custody for treatment upon completion of a criminal sentence. According to submissions made by the United States to the Minister, a person is considered "sexually dangerous" if suffering from a serious mental illness, abnormality or disorder and, as a result, would have serious difficulty refraining from sexually violent acts or child molestation if released.

[52] The Minister considered in some detail the procedural protections afforded a person who is subject to civil commitment proceedings, and the high evidential burden placed on the government to justify civil commitment.

[53] The Minister characterized civil commitment as "similar in nature to Canada's mental health laws that were established to protect the community from harm while providing treatment for high risk violent sexual offenders, where certain strict criteria have been met". Accordingly, she concluded that the surrender of the appellant in circumstances where he could face the potential institution of civil commitment proceedings would not violate art. 12 of the Treaty or s. 7 of the Charter, and that it would therefore not be appropriate to seek assurances from the United States that would preclude it from instituting such proceedings.

[54] The appellant maintains that seeking assurances from the United States would be appropriate, irrespective of how unlikely the Minister believes civil commitment proceedings would be.

[55] This submission misunderstands the Minister's reasons for not seeking assurances. Although the Minister does state that it would be premature to conclude that civil commitment would be sought, the basis for the refusal to seek assurances is independent of the likelihood of civil commitment proceedings. The basis for the refusal was stated to be the Minister's satisfaction with the procedural protections afforded a person subject to the civil commitment process, and the similarity of civil commitment to involuntary committal under Canadian mental health laws. Both led to the conclusion that civil commitment proceedings, should they be brought, would not violate either s. 7 of the Charter or art. 12 of the Treaty.

[56] The appellant has not articulated a basis on which judicial review of this aspect of the Minister's decision could be granted.

(d) The appellant's right to remain in Canada under s. 6(1) of the Charter

[57] The appellant argues that the Minister erred in her determination that surrender would not violate the appellant's s. 6(1) Charter right to remain in Canada.

[58] The appellant argues the Minister erred in her analysis by giving undue weight to the factor that the impact of the offence was felt most strongly in the United States, where the complainants were located. He further argues the Minister erred in finding that the case against the appellant was initiated and developed in the United States, overlooking the critical importance of the Canadian-gathered evidence. Finally, he argues that the Minister improperly balanced the factors set out in United States of America v. Cotroni, [1989] 1 S.C.R. 1469, [1989] S.C.J. No. 56, which led to the erroneous conclusion that prosecution would not be as effective in Canada. Therefore, surrender would be contrary to s. 6(1).

[59] The Minister's decision under s. 6(1) of the Charter is entitled to a high level of deference on judicial review and should only be interfered with in the clearest of cases: Lane, at para. 93; United States of America v. Sriskandarajah, [2012] 3 S.C.R. 609, [2012] S.C.J. No. 70, 2012 SCC 70, at paras. 11, 22-23.

[60] The Minister identified the following as "some of the key factors" driving the decision:

• the impact of the alleged conduct was felt most strongly in the United States, where two American children were victimized in their home;
• the United States initiated and developed the case against the appellant;
• the majority of the evidence for prosecution is located in the United States, including testimony from the victims, their father and their sister; and
• the United States has laid charges and is ready to proceed to trial.

[61] There is no basis for the submission that the Minister's reasons place undue weight on where the impact of the offences was felt most strongly. The greatest emphasis, in the Minister's letter, was not placed on where the impact of the offence was felt, but rather on the importance of giving "victims the opportunity to attend and/or participate in the court proceedings of the person alleged to have victimized them, including at the sentencing stage", and the age of the victims as it bore on their ability to participate.

[62] In essence, the appellant invites this court to reweigh the Minister's consideration of the Cotroni factors. There is no basis upon which this court could do so. The Minister properly considered the factors relevant to whether the appellant's extradition should be preferred to a domestic prosecution. The Minister made no error in concluding that extradition would not violate the appellant's s. 6(1) Charter rights.

E. Disposition

[63] I would dismiss the appeal and the application for judicial review.

Per Paciocco J.A. (dissenting)

Overview

[64] I agree with Miller J.A. that there is no basis for interfering in the Minister's decision to extradite Mr. Viscomi. I also agree that, on the record before him, the committal judge did not err in rejecting Mr. Viscomi's s. 8 application.

[65] I cannot agree, however, with the committal judge's ruling denying Mr. Viscomi disclosure of relevant information relating to the Canadian Charter of Rights and Freedoms challenges he wished to bring to the Canadian-gathered evidence. In my view, despite the committal judge's laudable efforts to be fair, even if he had the discretion to deny disclosure that he claimed, he applied the wrong disclosure test and exercised this discretion unreasonably. These errors undermined the ss. 8, 9 and 10(b) Charter rulings that he ultimately made.

[66] This is enough to resolve the appeal, but in my view, there is a more fundamental problem with the committal judge's decision. I am not persuaded that the law conferred the discretion to deny disclosure that the committal judge claimed. As I see it, once it is determined that there is an air of reality to a Charter challenge to the admissibility of Canadian-gathered evidence, which may lead to the exclusion of that evidence, a committal judge must order disclosure of information relevant to the admissibility of that evidence in the possession or control of the prosecuting authorities. The committal judge therefore erred in purporting to exercise discretion to deny relevant disclosure.

[67] I am also of the view that the committal judge's s. 24(2) analysis was not conducted correctly and was unfair. This, too, undermined the fairness of the committal hearing.

[68] I would therefore allow the appeal, quash the committal order, and remit the matter back for re-hearing.

Material Facts

[69] I agree with Miller J.A.'s recitation of the facts and history of this case. More must be said, however, about the committal judge's reasoning related to the disclosure and s. 24(2) issues. I will also repeat material information that my colleague identified but that should be highlighted here, to give context to the analysis I am now undertaking.

[70] Mr. Viscomi was initially charged in Canada on March 22, 2012, after two search warrants obtained in Canada were executed on March 21, 2012. One of those warrants was for the family home in Stouffville, Ontario where Mr. Viscomi had lived with his parents. The other warrant was for his student residence in Chatham-Kent, Ontario.

[71] The March 22, 2012 Canadian charges against Mr. Viscomi were pending, when, on August 9, 2012, he was arrested on an extradition warrant issued at the request of the United States of America for the same criminal allegations. The next day, August 10, 2012, the Canadian charges were withdrawn to yield to the American extradition process.

[72] Also on August 10, 2012, the Ontario Provincial Police applied for a search warrant to re-seize the evidence that had been seized on March 21, 2012. The sworn information used to secure the August 10, 2012 search warrant did not disclose that: Canadian charges had been laid, those charges were subsequently withdrawn, and the purpose of the requested search warrant was to support an extradition request rather than domestic charges.

[73] During the four-month period when Canadian charges were in place, Mr. Viscomi was provided with some disclosure relating to those charges, but further disclosure requests went unanswered. After the Canadian charges were withdrawn, Mr. Viscomi continued to seek the undisclosed information relating to the Canadian investigation, to defend himself against the American extradition request.

[74] He brought an application for disclosure returnable on November 1, 2012, the date scheduled for the committal hearing. On October 11, 2012, his disclosure application was brought forward at the request of the Crown and denied. It failed because the United States was not relying on Canadian-gathered evidence in the record of the case it presented in support of Mr. Viscomi's extradition ("ROC #1"), making disclosure about the Canadian-gathered evidence irrelevant.

[75] The American extradition request based on ROC #1 ultimately failed. On June 30, 2015, this court ruled in United States of America v. Viscomi (2015), 126 O.R. (3d) 427, [2015] O.J. No. 3448, 2015 ONCA 484, that the evidence in ROC #1 did not present the prima facie case required for the committal order.

[76] Mr. Viscomi was immediately rearrested after the release of this court's ruling, when the United States made a renewed request for his extradition. On July 28, 2015, Mr. Viscomi was served with a new record of the case (ROC #2), which did incorporate Canadian-gathered evidence, including evidence secured by the March 21, 2012 search warrants and re-seized under the authority of the August 10, 2012 search warrant.

[77] On January 15, 2016, Mr. Viscomi brought his second disclosure application, the one now in contest before this court. In it, he sought "the notes of Canadian police officers involved in searches and seizures and other dealings with the applicant on Canadian soil".

[78] On March 17, 2016, the committal judge denied this application. This time it was not that the information sought for disclosure was irrelevant. Indeed, the committal judge concluded that the fate of the American extradition request would come down to whether the "Canadian-derived evidence [in ROC #2] 'satisfies the rules of evidence under Canadian law in order to be admitted'", as required by Extradition Act, S.C. 1999, c. 18, s. 32(2). The committal judge summed up his reasons for denying the application this way:

In these reasons, I conclude that Mr. Viscomi has already been provided with more-than-adequate disclosure to permit him to challenge the admissibility of the Canadian-derived evidence based on issues properly raised at this committal stage of the extradition process. I am satisfied that there is no realistic possibility that further disclosure could affect the outcome of the extradition application.

[79] In coming to this conclusion, the committal judge applied a test for disclosure that he described as being "somewhat less stringent than the [R. v.] Larosa criteria". The Larosa test he was referring to was applied by this court in determining whether evidence, relating to whether alleged misconduct by Canadian authorities warranted a stay of proceedings, was admissible on an extradition appeal. The committal judge accurately cited the test from para. 76 of Larosa:

• the allegations of Charter-infringing misconduct must be capable of supporting the remedy sought;
• there must be an air of reality to the allegations; and
• it must be likely that the disclosure would be relevant to the allegations.

[80] He then said that at the committal stage, his focus was on "whether further disclosure is required in order that Mr. Viscomi's right to a fair determination of the committal hearing issues is protected" (emphasis in original). He ultimately denied disclosure of evidence relating to the issuance of the 2012 search warrants:

In my opinion, Mr. Viscomi has more-than-adequate disclosure to allow him to advance his claim that his Charter rights were violated by the manner in which the search warrants were executed. I am satisfied that further disclosure will serve only to protract the proceedings and there is no air of reality to the assertion that further disclosure will assist Mr. Viscomi.

[81] He gave similar explanations for denying the balance of the disclosure sought.

[82] Subsequently, on September 1, 2016, the committal judge released his decision in Mr. Viscomi's Charter challenge to the admissibility of Canadian-gathered evidence that was included in ROC #2. In that application, Mr. Viscomi raised claims relating to ss. 8, 9 and 10(b) of the Charter.

[83] The committal judge rejected the s. 8 claim on the evidence before him. With respect to the alleged ss. 9 and 10(a) Charter violations, linked to the manner in which the March 21, 2012 Chatham-Kent search was conducted, Mr. Viscomi claimed he had been unlawfully detained during the search and denied his right to counsel. The committal Crown moved to have those claims dismissed summarily, arguing that there was no admissible evidence supporting them. The committal judge explained in his Charter ruling:

I declined to hear the Crown's motion, because I considered that in light of my earlier ruling limiting Mr. Viscomi's disclosure to what was already in his possession, fairness required that I proceed with the Charter application on the assumption that Mr. Viscomi was indeed detained for a period of time and that he may not have received the appropriate Charter-mandated caution. In other words, I was concerned that Mr. Viscomi not be prejudiced in his ability to argue the sections 9 & 10 motions because he did not have every scrap of disclosure relating to those purported breaches.

(Emphasis in original)

[84] The committal judge also went on to note that there was "some support [in the evidence] for the assertion that Mr. Viscomi was detained for about two hours around the time of the search of his apartment in Chatham-Kent" (emphasis in original). That support came, in part, from two sets of officers' notes that the committal judge had refused to order be disclosed, but that Mr. Viscomi secured with an access to information request.

[85] The committal judge then went on to say:

There is nothing in any of the material before me on this Charter application to suggest that Mr. Viscomi was treated disrespectfully or aggressively during the period of his detention. Mr. Viscomi was entitled to adduce evidence on this application but has not done so. I will therefore proceed on the assumption that his detention was not accompanied by otherwise inappropriate conduct by the police.

[86] He then said:

Assuming that Mr. Viscomi was arbitrarily detained contrary to s. 9 of the Charter, and assuming that his s. 10 rights were violated, I am satisfied that the Charter breaches were not serious and that the officers acted in good faith in the manner in which they conducted themselves.

[87] When the committal judge balanced the factors in the "Grant test", he concluded that the evidence should not be excluded despite the ss. 9 and 10(b) breaches that he found.

Issues

[88] As I see it, four issues arise for consideration from the arguments Mr. Viscomi made and from my colleague's decision:

(A) Did the committal judge apply the correct disclosure test?

(B) Did the committal judge exercise his discretion fairly?

(C) Did the committal judge have the discretion to deny disclosure?

(D) Did the disclosure decision render the committal hearing unfair?

Analysis

A. The committal judge did not apply the correct disclosure test

[89] For reasons I will explain, the committal judge should have applied the Larosa test to determine whether to disclose the information Mr. Viscomi was seeking. The committal judge did attempt to apply a test that was, in his words, "somewhat less stringent than the Larosa criteria". If the committal judge had done so successfully, Mr. Viscomi would not be in a position to complain about the test used. In fact, the criteria the committal judge applied were stricter than the Larosa test. He therefore erred in law in the test he used.

[90] As indicated, Larosa is not, strictly speaking, a case about committal proceedings. It sets out a test for the admission of evidence relating to an alleged Charter violation on an extradition appeal. In appeals, the reception of new evidence is typically tightly controlled. I am nonetheless satisfied that the Larosa test does apply at the extradition committal stage as well. This court has used it in evaluating a disclosure request relating to Charter allegations that state misconduct would render committal unfair: United States of America v. Prudenza, [2006] O.J. No. 4321, 213 C.C.C. (3d) 312 (C.A.), at para. 22, and see United States of America v. Wong, [2017] B.C.J. No. 441, 2017 BCCA 109, 346 C.C.C. (3d) 1, at para. 23. It has also been applied by committal judges considering disclosure requests relating to the Charter admissibility of evidence relied upon to support committal: see United States of America v. Cao, [2009] O.J. No. 4987, at paras. 33-34, and United States of America v. Amadi, [2017] O.J. No. 2977, 2017 ONSC 3446 (S.C.J.), at paras. 40-41. The Larosa test commends itself.

[91] First, the imposition of an air of reality criterion to disclosure in extradition cases is well established. Extradition is intended to be an "expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canadian international obligations": United States of America v. Dynar (1997), 33 O.R. (3d) 478, [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, at para. 122. Therefore, "judicial intervention must be limited to cases of real substance": Canada v. Schmidt, [1987] 1 S.C.R. 500, [1987] S.C.J. No. 24, at p. 523 S.C.R., cited in Dynar, at para. 125. A committal judge is not obliged to entertain or make disclosure relating to Charter challenges to evidence, unless those challenges have an "air of reality": United States of America v. Anekwu, [2009] 3 S.C.R. 3, [2009] S.C.J. No. 41, 2009 SCC 41, at paras. 31, 33.

[92] Air of reality standards are meant to ensure that the issue a party seeks to have considered is "tenable": R v. Durette (1992), 9 O.R. (3d) 557, 72 C.C.C. (3d) 421 (C.A.), at p. 437 C.C.C., revd on different grounds , [1994] 1 S.C.R. 469, [1994] S.C.J. No. 22. In the extradition disclosure context, the air of reality test requires that there be an evidentiary foundation demonstrating a "realistic possibility" that the alleged Charter breach can be substantiated by disclosure: Larosa, at para. 78, and see United States of America v. Tollman, [2006] O.J. No. 5588, 2006 CarswellOnt 6831 (S.C.J.), at para. 21. In Dynar, since there was no air of reality to Mr. Dynar's contention that wiretap evidence obtained in the United States was Canadian-gathered evidence -- a necessary condition to the Charter breach alleged -- he was not entitled to the disclosure he was demanding, pertaining to the relationship between Canadian and American authorities: at para. 141.

[93] In Dynar, Cory and Iacobucci JJ. spoke only about the need for the Charter breach allegations to have an "air of reality" to warrant disclosure at a committal proceeding. They did not mention the other two Larosa criteria, namely, that "the allegations [of Charter-infringing misconduct] must be capable of supporting the remedy sought" and that "it must be likely that the [disclosure] sought would be relevant to the allegations": Larosa, at para. 76.

[94] In my view, these latter two Larosa criteria are nonetheless also required. The Dynar court did not mention them because they are obvious, and did not arise on the facts of that case. Clearly, a request for disclosure of evidence that is not likely to be relevant lacks merit, as does a request for disclosure in support of a Charter allegation incapable of supporting the remedy sought -- in this case, the exclusion of the evidence.

[95] The Larosa test therefore applies to disclosure requests related to Charter breaches raised in committal proceedings. As I say, in spite of the committal judge's attempt to soften the Larosa test at the committal stage, the test he applied was in fact stricter than the Larosa test. Instead of asking whether there was "an air of reality to the allegations" -- in this case the alleged Charter breaches -- he asked the more demanding question of whether "there is [an] air of reality to the assertion that further disclosure will assist Mr. Viscomi" (emphasis added).

[96] In other words, instead of assessing whether there was an air of reality to the issue that disclosure was sought to enlighten, he asked whether the disclosure sought would provide additional assistance on that issue.

[97] The standard imposed by the committal judge is a much more difficult standard to meet than the air of reality criterion that forms part of the Larosa test. This is for the simple reason that a party seeking to satisfy the criterion he employed is apt to run headlong into the "catch-22" of being unable to demonstrate how information they have never seen would impact their Charter claim. Elsewhere, the law protects those whose liberty is at stake from losing access to potentially useful disclosure, even though they cannot demonstrate its value.

[98] In R. v. Stinchcombe disclosure cases, if the Crown withholds information claiming it to be clearly irrelevant, the dispute is resolved by judicial inspection of the contentious material. Where a conviction appeal is based on an alleged Stinchcombe violation, no remedy will be forthcoming on appeal unless the improperly withheld information impaired the right to full answer and defence, but this, too, is determined by judicial inspection: R. v. Dixon, [1998] 1 S.C.R. 244, [1998] S.C.J. No. 17, at para. 36. The accused person is not expected, sight unseen, to demonstrate the contribution that the target information would be apt to make.

[99] Third party records in a prosecution for a non-sexual offence must also be inspected by the trial judge for their potential probative value on a mere showing of logical relevance: R. v. O'Connor, [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, at para. 22. Even where disclosure is sought under the R. v. Mills regime where, by statute, consideration of probative value is required before judicial inspection, the Supreme Court of Canada has directed that in order to avoid the inherent "catch-22" risk, "[w]here there is a danger that the accused's right to make full answer and defence will be violated, the trial judge should err on the side of production to the court": at para. 137.

[100] I am mindful that Stinchcombe or even O'Connor or Mills disclosure standards do not apply at extradition proceedings, but that does not mean that their underlying principles are entirely immaterial here. In any context, to demand as a precondition that the party seeking disclosure must show "that the further disclosure will assist" will, in many if not most cases, predestine meritorious applications to failure.

[101] The amped up standard applied by the committal judge outstrips the test articulated in Larosa. Nor is it supported by the air of reality conception identified in Dynar, where the court asks only whether there is an "'air of reality' to the contention that [the subject] could establish a Charter violation by the Canadian officials": at para. 141.

[102] In my view, the committal judge erred by applying the wrong disclosure test, since this test was stricter than the law requires.

B. The committal judge did not exercise his discretion fairly

[103] In my view, even if a committal judge has discretion to deny disclosure of information relevant to the Charter admissibility of Canadian-gathered evidence that is being relied upon by the requesting state, that discretion was not exercised fairly in this case.

[104] This unfortunate outcome, unintentionally produced by a committal judge who was clearly trying to be fair, is easily demonstrated by what occurred during the subsequent Charter voir dire. During that Charter voir dire, the committal judge recognized that because of his disclosure ruling, "fairness required that [he] proceed . . . on the assumption that Mr. Viscomi was indeed detained for a period of time and that he may not have received the appropriate Charter-mandated caution" (emphasis in original).

[105] In my view, the committal judge's felt need to assume Charter violations, because his disclosure ruling deprived Mr. Viscomi of the means to attempt to prove these breaches with evidence, demonstrates that the committal judge did not successfully achieve even the fairness standard he had identified. Specifically, he sought to arrive at a fair disclosure ruling by asking whether "[Mr. Viscomi] has enough ammunition to meaningfully advance his arguments", only to discover during the Charter motion that as a result of the disclosure ruling, fairness required that Mr. Viscomi's application be supplemented by assumptions.

[106] I appreciate that, in one sense, assuming Charter breaches is a generosity. Had the issue been fully litigated even with the benefit of full disclosure, Mr. Viscomi may not have been able to establish any breach at all. On the other hand, with the benefit of more complete disclosure, Mr. Viscomi may have been able to establish different and more serious breaches, committed in more aggravated circumstances than those assumed. This would have made exclusion more likely. The point is that an assumed breach cannot fairly substitute for disclosure.

[107] This is why I am of the view that, at the very least, once the committal judge realized that he had not made sufficient disclosure for the issues to be argued meaningfully on the evidence, he should have revisited his disclosure ruling so that he could order the disclosure that would meet the fairness standard he imposed.

[108] Even leaving this aside, it is my view that the "enough ammunition" standard, used by the committal judge to limit the disclosure Mr. Viscomi received, was contrary to principle.

[109] First, it is inherently arbitrary, as there is no meaningful measure that can be applied to decide when enough is enough. One of the realities that this standard fails to accommodate is that accumulated evidence is often stronger than less evidence. More information will often be the difference between success and failure. Applying an "enough ammunition" standard to deny the disclosure of information, sight unseen, can arbitrarily halt the accumulation of evidence before the true weight of a claim can become known.

[110] Second, the "enough ammunition" standard accepts that the ability to argue meaningfully, but less effectively than possible, is an appropriate measure of fairness. In my view, it is not. As I see it, the purpose of disclosure is not to facilitate a threshold level of argument. Its function is to promote correct outcomes in an adversarial setting by sharing information the Crown controls or possesses with those whose liberty it seeks to deprive. In my view, denying what could prove to be decisive and relevant disclosure because the meaningful argument threshold has been met does little to advance the underlying purpose in making disclosure.

[111] The committal judge derived the "enough ammunition" standard from the general proposition he identified: namely, that fairness in the extradition process is achieved by ensuring "meaningful scrutiny of the Canadian-gathered evidence". With respect, the authorities he cited in support of that proposition do not adopt that measure as a general principle of fairness, and have nothing to do with an appropriate disclosure standard.

[112] Anekwu, at paras. 21 and 28, speaks, in turn, of the committal judge's obligation to scrutinize Canadian-gathered evidence for its admissibility, and generally about how procedural safeguards at a committal hearing need not match those at a trial. The passages cited from Dynar, at paras. 122-124, also note the difference in procedural safeguards between a committal hearing and trial, and speak to the application of the Charter to Canadian state actors. The other authorities cited -- United States of America v. Ferras, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 2006 SCC 33, at para. 29, and France v. Diab (2014), 120 O.R. (3d) 174, [2014] O.J. No. 2305, 2014 ONCA 374, 312 C.C.C. (3d) 471, at para. 106 -- are about a committal judge's responsibilities relating to the reliability of the evidence offered. In my view, these cases do not purport to adopt a "meaningful scrutiny" standard as the measure of fairness in extradition cases generally, or in the disclosure context where the admissibility of Canadian-gathered evidence is at issue.

[113] In summary, the committal judge's recognition that given the disclosure order he made, fairness required that he assume Charter breaches, demonstrates on its own that if he had the discretion to deny disclosure, he did not exercise that discretion fairly. In my view, the exercise of his discretion was also unfair because he erred in principle by using an "enough ammunition" standard to determine whether to order further disclosure.

C. The committal judge did not have the discretion to deny disclosure

[114] More profoundly, in my view, the committal judge's understanding that he had discretion to deny disclosure of information that satisfies the Larosa test is incorrect. If information is likely to be relevant to a Charter challenge to the admissibility of Canadian-gathered evidence, and that Charter challenge has an air of reality and is capable of resulting in the exclusion of evidence, that information must be disclosed.

[115] To be clear, there is discretion related to disclosure of information relevant to Charter violations alleged in committal proceedings, but such discretion does not apply here. That discretion entitles a committal judge to broaden the scope of a committal hearing by permitting evidence that is immaterial to the outcome of the committal hearing to be presented, and to order disclosure of information that is relevant to that broadened issue. In my view, the committal judge erred in purporting to apply this discretion to information in this case. Here, the information was likely to be relevant to an issue that he had to resolve to determine whether the requesting state had a prima facie case: namely, the Charter admissibility of Canadian-gathered evidence the requesting state relied upon. Case law dealing with the discretion to broaden the scope of a committal hearing did not apply.

[116] This distinction is as subtle as it is critical, so I will begin in the beginning, with the scope of an extradition committal hearing.

[117] Whereas domestic trials engage all issues of guilt or innocence and finally determine the charges alleged, committal proceedings are concerned only with whether the requesting state has demonstrated a prima facie case that the individual has committed alleged acts in the foreign state that would constitute criminal conduct in Canada, thereby warranting a trial in the foreign state: Dynar, at para. 121. Disclosure rights in extradition cases are therefore narrower, "constrained by the limited function of the extradition judge under the [Extradition Act], and by the need to avoid imposing Canadian notions of procedural fairness on foreign authorities": Dynar, at para. 133.

[118] The "constrained" function of the committal judge -- determining whether there is a prima facie case -- makes it unnecessary for the subject to receive disclosure of all relevant, unprivileged information in the possession and control of the prosecuting Crown, as occurs in a domestic criminal prosecution. Much of that information will have nothing to do with whether the prosecuting Crown has a prima facie case.

[119] Since it is relevant at a committal proceeding, however, the subject is entitled to "materials on which the requesting state is relying to establish its prima facie case": Dynar, at para. 134, citing United States of America v. Whitley (1994), 20 O.R. (3d) 794, [1994] O.J. No. 2478, 94 C.C.C. (3d) 99 (C.A.), affd , [1996] 1 S.C.R. 467, [1996] S.C.J. No. 25.

[120] What is also relevant at the committal proceeding is information about the admissibility of Canadian-gathered evidence that the requesting state relies upon to establish the prima facie case. Information about evidence that has not been gathered in Canada is generally irrelevant and need not be disclosed because, in order to avoid "imposing Canadian notions of procedural fairness on foreign authorities", such evidence can be considered by the committal judge even if it does not meet Canadian rules of admissibility. Canadian-gathered evidence is different. The Extradition Act, s. 32(2) provides:

Exception -- Canadian Evidence

32(2) Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.

[121] This rule would be pointless if the committal judge and the parties were unarmed with sufficient information about Canadian-gathered evidence to determine its admissibility. As a result, in Anekwu, at para. 29, Charron J. said that "the record of the case should contain sufficient information to enable the person sought and the extradition judge to ascertain whether any item of evidence has been gathered in Canada and, when that is the case, some information should also be provided on how it was obtained".

[122] In Anekwu, for example, the record of the case included sufficient information to ascertain that, notwithstanding the Canadian hearsay rule, the Canadian-gathered information relied upon by the requesting state was "comprised of corporate records, mailbox records, bank records, first-hand police surveillance evidence and an immigration photograph of Mr. Anekwu, all of which would have been admissible if the actual records were filed": at para. 32. Where the record of the case does not disclose sufficient information to ascertain the admissibility of Canadian-gathered evidence, disclosure or even discovery by compelling material witnesses to appear for examination or cross-examination can fill that need: Anekwu, at para. 31.

[123] Just as Canadian-gathered hearsay evidence may be inadmissible, evidence relied upon by the requesting state that was obtained by Canadian authorities in a manner that violates the Charter may too be inadmissible. As a result, a committal judge has jurisdiction to entertain an application under s. 24(2) of the Charter for the exclusion of evidence gathered by Canadian authorities in contravention of the Charter, and to order disclosure relating to such applications: Anekwu, at para. 29.

[124] However, there are other kinds of Charter issues that can arise in extradition proceedings that are unrelated to whether committal should be ordered. There is no "right" to disclosure relating to such Charter applications. In United States of America v. Kwok, [2001] 1 S.C.R. 532, [2001] S.C.J. No. 19, 2001 SCC 18, for example, Mr. Kwok argued that his extradition to the United States would violate his mobility rights under s. 6 of the Charter. The committal judge refused to order disclosure relating to that Charter challenge. Arbour J., for the court, upheld that decision because Charter compliance with s. 6 is unrelated to the function of the committal judge.

[125] And here is where the discretion comes in. Arbour J. accepted, at para. 74, that since a s. 6 Charter challenge may be tenable before the Minister at the surrender phase of the extradition proceedings, "on efficiency grounds, it has been recognized that extradition judges could have the discretion to hear, without deciding, evidence on alleged s. 6 Charter violations when the allegations hold an air of reality" (emphasis in original). She said that she would not want to preclude the exercise of this "residual discretion of the part of the extradition judge to allow evidence on some of these [non-admissibility Charter challenges] in a proper case, and to order disclosure accordingly": at para. 102.

[126] In my view, the heart of her decision on the state of the law is found in paras. 100 and 101:

The extradition judge may only order the production of materials relevant to the issues properly raised at the committal stage of the process, subject to his or her discretion to expand the scope of that hearing to allow the parties to establish the factual basis for a subsequent Charter challenge, when it is expedient to do so, including obviously, when there is at least an air of reality to the Charter claims. Requests for disclosure of materials related to issues which properly belong to the executive phase of extradition, and to the judicial review thereof, have no independent relevance before the [committal] judge and are subsumed in his or her discretion to hear evidence related to such issues.

In this case, the appellant was entitled to know the case against him, including the materials upon which the United States relied upon to establish a prima facie case. Since the Requesting State was not relying upon materials in the possession of Canadian authorities, and in the absence of any indication of bad faith or improper motives on the part of prosecuting authorities, there was no obligation to provide further disclosure of materials requested.

(Citations omitted)

[127] It is clear, in my view, that at no point did Arbour J. speak of discretion to disclose information relevant to issues properly raised at the committal stage, such as the Charter admissibility of Canadian-gathered evidence that the requesting state relies upon. When she used the word "may" in the opening sentence of para. 100, she was describing the authority to order disclosure -- what a committal judge is empowered to or "may" do. The discretion she spoke about was discretion to expand the scope of the committal hearing to receive evidence about Charter challenges relating to issues not properly raised at the committal stage, and to order disclosure accordingly. She was not speaking of discretion to refuse disclosure of relevant evidence related to the issues which are properly before the committal judge.

[128] Indeed, when she referred, at para. 101, to disclosure relating to the issues properly before the committal judge, she spoke in terms of what "the appellant was entitled to know" (emphasis added). She explained that since the information sought by Mr. Kwok had no independent relevance before the committal judge "there was no obligation to provide further disclosure of the materials requested" (emphasis added). A few paragraphs later, speaking of Ministerial disclosure obligations, she commented at para. 106, "the disclosure requests made by the appellant to the Minister did not bear on issues sufficiently relevant to the surrender decision, or to the constitutional rights of the appellant in that process, to require compulsory disclosure" (emphasis added). In my view, she was clearly expressing the view that where there is an air of reality to Charter claims related to issues properly belonging to the committal judge, disclosure is obligatory, not discretionary.

[129] Similarly, in Dynar, Cory and Iacobucci JJ. explained that "no additional disclosure was required" (emphasis added), because it did not relate to the prima facie case: at para. 135. In United States of America v. Costanzo, [2009] B.C.J. No. 699, 2009 BCCA 120, 243 C.C.C. (3d) 242, at paras. 26-27, leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 196, Rowles J.A. spoke of the "obligation to provide additional disclosure" that arises where an air of reality exists for a Charter claim that "pertain[s] directly to the circumscribed issues relevant at the committal stage". In United States of America v. Fafalios, [2010] O.J. No. 1357, 2010 ONSC 1994 (S.C.J.), affd on other grounds (2012), 110 O.R. (3d) 641, [2012] O.J. No. 2394, 2012 ONCA 365, at paras. 24-26, Backhouse J. ordered that the applicants were "entitled to full disclosure" after finding an air of reality had been established for a Charter challenge related to the admissibility of Canadian-gathered evidence relied upon by the requesting state. In United States of America v 'Isa, [2014] A.J. No. 796, 2014 ABCA 256, at para. 39, leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 445, in a per curiam opinion the Alberta Court of Appeal determined that Mr. 'Isa was entitled to "disclosure of all materials" after demonstrating an air of reality to an allegation of torture relating to US-gathered evidence relied upon in the record of the case.

[130] None of these decisions speak of a discretion relating to disclosure and all proceed on the basis that where there is an air of reality to a Charter violation relevant before a committal judge, disclosure must be made. They did not consider the Kwok discretion, in my view, because that discretion does not apply in these circumstances. Fittingly, the Kwok discretion was subsequently described in M. (M.) v. United States of America, [2015] 3 S.C.R. 973, [2015] S.C.J. No. 62, 2015 SCC 62, at para. 79, as the "limited discretion exceptionally to admit evidence that is not, strictly speaking, relevant to the committal inquiry but will be relevant to the Minister's task at the surrender stage of the proceedings", and includes whether to order the disclosure of evidence relevant to those claims. That is not the situation that the committal judge was addressing in this case.

[131] In my view, compulsory disclosure at the committal hearing of information relating to Charter challenges that must be decided to determine committal makes perfect sense where the Larosa test is met. The discretion to deny such disclosure does not.

[132] I have already advanced the proposition that the discretion to deny relevant disclosure has the potential to operate arbitrarily, and to undercut meritorious Charter claims. I will begin with that in mind.

[133] The Supreme Court of Canada has recognized that the extradition hearing in Canada has to conform to the requirements of the Charter: United States of America v. Cobb, [2001] 1 S.C.R. 587, [2001] S.C.J. No. 20, 2001 SCC 19, at para. 24. It bears consideration that Charter exclusion under s. 24(2) preserves the repute of the administration of justice. In my view, the fortunes of that reputation should not be resolved on incomplete information.

[134] Conformity with the requirements of the Charter includes the entitlement of accused persons to challenge how the evidence being used against them was obtained. That is why committal judges have the jurisdiction to entertain Charter applications for exclusion. The committal hearing is the only opportunity that a Charter claimant will have to vindicate those rights. That sole chance should not be weakened by limited access to relevant information that is available and in the custody or possession of the Crown that is prosecuting the extradition.

[135] In that regard, the observation of Sopinka J. in Stinchcombe, supra, at p. 333 S.C.R., is germane: "the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done". The same holds true, in my view, of Canadian-gathered information relevant in securing committal.

[136] Indeed, it is the immediate availability of such information, and its possession by the prosecuting Crown agent, that distinguishes disclosure from the kinds of discovery requests where discretion does have a role to play, such as cross-examining an affiant on a search warrant information. Unless the information is protected, if the prosecuting Crown has possession or control of information likely relevant to a viable application for Charter exclusion, so too should the party whose liberty interest is at stake. The obligation of state agents to share that information should not be subjected to the vagaries of discretion.

[137] The important admonition in Dynar that, in the interests of reciprocity and comity, less complex and extensive extradition proceedings are required, is not served by discretion to deny relevant disclosure. There is no reason to believe that requiring complete disclosure of information relevant to the admissibility of Canadian-gathered evidence the requesting state relies upon will cause delays. One of the driving premises in Stinchcombe for the adoption of a disclosure regime was the "compelling evidence that much time would be saved and therefore delays reduced": at p. 334 S.C.R. Disclosure can demonstrate that issues are not viable, and promote settlement. The same efficiencies would apply to Charter challenges in extradition proceedings.

[138] Indeed, the discretion contemplated by the committal judge in this case is more apt to prolong the proceedings. Granting the committal judge discretion to deny relevant disclosure removes the bright line by which disclosure compliance can be measured by police officers and prosecutors. A corollary of granting the committal judge discretion to deny relevant disclosure is an invitation to police officers and prosecutors to exercise their discretion about where they think the line should be drawn. This can only promote litigation and unsettle the efficiency of extradition proceedings with needless disclosure applications.

[139] Nor does the compulsory disclosure of information relevant to the outcome of committal proceedings contradict the observation in Dynar that trial disclosure practices should not be transplanted into the extradition context. There is a world of difference between the Stinchcombe disclosure rules and the extradition disclosure regime the Supreme Court of Canada endorsed in Kwok. In a domestic trial, the fruits of the entire criminal investigation in the hands of the prosecuting Crown must be handed over unless clearly irrelevant or privileged. By contrast, the disclosure regime I am describing requires disclosure only of information bearing on Charter challenges that must be decided to determine committal. Even then, disclosure is required only where there is a showing that the information is likely to be relevant to that Charter claim, and where that claim has both an air of reality and the potential to result in the exclusion of the evidence.

[140] In my view, there is no Supreme Court of Canada authority that has moved from the sensible regime described by Arbour J. in Kwok. I do not believe that Charron J.'s comment in Anekwu, at para. 29, that "the extradition judge may order the production of materials relevant to any issue properly raised at the committal stage of the process where there is an air of reality", can fairly be read as having done so. Charron J. was simply responding to Mr. Akenwu's argument that, given the difficulties in acquiring information needed to establish Charter breaches in extradition proceedings, the requesting state should have to prove that Canadian-gathered evidence was gathered in compliance with the Charter. She rejected the underlying premise of Mr. Akenwu's argument by listing the various ways that the required information could be gathered, one of which "may" be through a committal judge ordering disclosure. She was not, in that single comment, while speaking on an unrelated issue, purporting to reconfigure the discretion to deny disclosure that had been addressed in Kwok.

[141] In United States of America v. McAmmond, [2005] O.J. No. 8, 192 C.C.C. (3d) 149 (C.A.), at para. 31, Laskin J.A. did say that "[e]ven where there may be an air of reality to the [Charter] complaints alleged, it remains a matter of the proper exercise of discretion on the part of the extradition judge". If applied generally, that dictum does have a breadth that outstrips what Kwok said. When Laskin J.A. said this, however, he was not dealing with a Charter challenge to the admissibility of Canadian-gathered evidence, but with "matters extraneous to the issues on the extradition hearing itself", where the Kwok discretion does apply: at para. 21. I do not read McAmmond as being inconsistent with what I am now saying.

[142] My colleague relies upon this court's decision in United States of America v. Mathurin (2015), 127 O.R. (3d) 136, [2015] O.J. No. 4487, 2015 ONCA 581, 328 C.C.C. (3d) 85, to support the committal judge's discretion to deny disclosure. In that case, Mr. Mathurin appealed his committal on several grounds, including that the trial judge erred by failing to grant disclosure relating to several Charter breaches that could have affected the admissibility of Canadian-gathered evidence. In her analysis for the court, Benotto J.A. did quote the passage from McAmmond, at para. 31, and expressed the usual caution about the need to defer to discretionary decisions. However, that discretion was not relied upon to dismiss Mr. Mathurin's appeal. With one exception, his disclosure ground of appeal was dismissed because none of his Charter claims met the Larosa test: they all lacked an air of reality. The remaining disclosure request was sent back to the committal judge for reconsideration, because the committal judge had denied disclosure in the mistaken belief that the conduct it related to would not violate the Charter. I do not read Mathurin as having settled the question of whether a committal judge has discretion to deny disclosure of information relating to the admissibility of Canadian-gathered evidence that the requesting state relies upon, where the Larosa test has been met.

[143] For the reasons I have given, it is my view that such discretion does not exist. With respect, the committal judge erred by relying on discretion he did not have to deny Mr. Viscomi's disclosure claims.

D. The disclosure decision rendered the committal hearing unfair

[144] In my view, the committal judge's disclosure decision rendered the committal hearing unfair by undermining his s. 24(2) decision. As indicated, after denying Mr. Viscomi's disclosure requests, the committal judge proceeded based on assumed breaches of Mr. Viscomi's ss. 9 and 10(b) rights. This was done in the spirit of fairness, but it did not achieve that result. Section 24(2) requires a judge to consider whether the admission of evidence in the proceedings would bring the administration of justice into disrepute "having regard to all the circumstances". That mandate cannot be discharged without identifying all of the actual circumstances of a Charter breach.

[145] In my view, the assumptions that the committal judge made were also unfair. If a Charter application is going to be resolved without a full evidentiary record, the Charter application should be taken at its highest. Doing so removes the unfairness of rejecting it without seeing the actual evidence. In M. (M.), at para. 77, this was the standard the Court endorsed when describing when it is appropriate to dispense summarily with a request to present evidence about the claimed unreliability of evidence included in the record of the case.

[146] Here, the committal judge did not take Mr. Viscomi's Charter claim at its highest. Because of the absence of what may have been a full evidentiary record resulting from his disclosure ruling, the committal judge said:

There is nothing in any of the material before me on this Charter application to suggest that Mr. Viscomi was treated disrespectfully or aggressively during the period of his detention. Mr. Viscomi was entitled to adduce evidence on this application but has not done so. I will therefore proceed on the assumption that his detention was not accompanied by otherwise inappropriate conduct by the police.

[147] By proceeding on the assumption that Mr. Viscomi's detention was not accompanied by otherwise inappropriate conduct by the police, the committal judge was not taking his Charter claim at its highest.

[148] As well, Mr. Viscomi's failure to adduce evidence may have been attributable to the lack of disclosure, and cannot therefore be relied upon as confirming good faith on the part of the police.

[149] Moreover, it cannot fairly be assumed that the disclosure would not have provided information undermining the good faith assumption that was made.

[150] I say this with tremendous respect for the committal judge, but the good faith assumption he made could only serve to undermine Mr. Viscomi's Charter claim.

[151] In my view, the committal judge therefore erred, and the remedy he applied to overcome the unfairness arising from the lack of disclosure actually rendered the committal hearing unfair.

Disposition

[152] In my view, the approach used in Stinchcombe appeals, described in Dixon, at para. 36, operates where extradition committal decisions are appealed because of non-disclosure. Even if non-disclosure occurs, appellate relief is not required unless there is a reasonable possibility that the non-disclosure may have compromised the subject's ability to defend and answer the committal proceedings. That standard is met here. The committal judge's felt need to assume Charter breaches because of the state of disclosure demonstrates his own appreciation that Mr. Viscomi's ability to challenge the admission of evidence the requesting state relied upon was prejudiced by the order he made. My finding that the fairness of the s. 24(2) determination was compromised also meets this standard.

[153] I would therefore allow the appeal, set aside the committal order and order a new hearing.

Disposition

Appeal and application dismissed.

End of Document