COURT OF APPEAL FOR ONTARIO

DATE: 20241028 DOCKET: C70345, COA-23-CR-1102, COA-23-CR-1141

Tulloch C.J.O., MacPherson and Monahan JJ.A.

IN THE MATTER OF an appeal of a committal order pursuant to s. 49 of the Extradition Act, S.C. 1999, c. 18

AND IN THE MATTER OF an application for judicial review pursuant to s. 57 of the Extradition Act, S.C. 1999, c. 18

BETWEEN

The Attorney General of Canada on behalf of the United States of America Respondent

and

Bakshinder Palsingh Mann Appellant/Applicant

Counsel: Nusra Khan and John-Paul Radelet, for the appellant Adrienne Rice, for the respondent

Heard: October 2, 2024

On appeal from the order of committal for extradition by Justice Nancy J. Spies of the Superior Court of Justice, dated January 20, 2022, with reasons reported at 2022 ONSC 463 and from the ruling on a disclosure application by Justice Brian P. O’Marra of the Superior Court of Justice, dated November 30, 2021, with reasons reported at 2021 ONSC 7896, and on application for judicial review of the order of surrender of the Minister of Justice, dated September 28, 2022.

REASONS FOR DECISION

[1] The appellant has been charged in the state of California in relation to an alleged sexual relationship with his cousin, who at the relevant time was under the age of 16, and for soliciting pornographic photographs from the cousin. After being charged, he fled to Canada and lived here in hiding for almost two years. Canadian border authorities learned of his whereabouts from an anonymous tipster and on March 19, 2021 arrested him for breaches of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the “IRPA”). As a result of the U.S. authorities’ request for his provisional arrest, the appellant was re-arrested on March 24, 2021 under the Extradition Act, S.C. 1999, c. 18.

[2] The appellant alleged that he was physically abused during the course of his arrest on March 19, 2021, and was also beaten by another inmate while being held in custody at the Maplehurst Correctional Complex (Maplehurst). He sought disclosure of information relating to those incidents but his disclosure application was dismissed on November 30, 2021 on the basis that there was no nexus between the alleged misconduct and the extradition proceedings.

[3] On January 20, 2022, the appellant was committed into custody to await surrender for extradition to the U.S. and on September 28, 2022, the Minister of Justice ordered the appellant’s surrender to the U.S.

[4] The appellant appeals his committal order on two grounds:

(i) The application judge erred in dismissing his request for disclosure; and

(ii) The committal judge erred in finding that his conduct would have constituted an offence punishable under s. 163.1 of the Criminal Code, R.S.C. 1985, c. C-46.

[5] He also seeks judicial review of the Minister’s surrender order on the basis that the order is unreasonable, since the Minister fettered his discretion by adopting the committal judge’s reasons wholesale and also failed to meaningfully consult with the Minister for Immigration, Refugees and Citizenship Canada (IRCC), as required by s. 40(2) of the Extradition Act.

[6] At the conclusion of oral submissions, we dismissed the appeal with reasons to follow. These are our reasons.

BACKGROUND FACTS

[7] The evidence provided by the U.S. in support of its request for extradition, as set out in the Revised Record of the Case (RROC), is as follows.

[8] A.K., who is the appellant’s cousin and lives in Bakersfield, California, will testify that beginning in January 2017, when she was 14 and the appellant was 21, they began engaging in sexual activity. Their sexual relationship continued for approximately two years, during the course of which they had sexual intercourse at least ten times.

[9] A.K. will further testify that the appellant was aware of her age, that they discussed the fact that she was a minor, and that they decided to keep their sexual relationship secret. As a result of their sexual relationship, A.K. became pregnant twice. In November 2018, A.K. delivered a child at her family’s home in Bakersfield and the infant was taken by her mother. The baby was later found buried in the family’s backyard. The second pregnancy resulted in a miscarriage on March 20, 2019.

[10] While conducting an investigation surrounding the baby that was found buried in the backyard, Bakersfield police discovered a cellphone in the garage of the home. The contents of the phone indicated that it had been used by A.K., and it contained several photos of A.K. with her breasts exposed and two videos in which her vagina was exposed (collectively, the “Images”). The data on the phone also revealed that A.K. had sent the Images to the appellant on December 15, 2018, ten days after she had turned 16 years old. A.K. told police that the appellant had asked her to send sexually explicit images of herself to him.

[11] Bakersfield police commenced an investigation into the appellant but in June 2019 he fled to Canada. As noted above, on March 19, 2021 the appellant was arrested by Canadian immigration officials for violations of the IRPA, and on March 24, 2021 he was re-arrested on a provisional arrest warrant obtained pursuant to s. 13 of the Extradition Act.

[12] The appellant made an application for disclosure of information relating to his March 19, 2021 arrest and his subsequent detention at Maplehurst, on the basis that his rights under the Charter had been violated and he intended to bring an application to stay the extradition proceedings. That application was dismissed by the application judge on November 30, 2021 on the basis that even if the appellant’s allegations of wrongdoing were made out, there was no connection to the impending extradition process and therefore the production sought could not support a stay of the extradition proceedings.

[13] At the committal hearing, the appellant did not dispute that the evidence in the RROC established a prima facie case for committal on the offence of sexual assault. However, he argued that his alleged conduct did not establish the offence of accessing child pornography under Canadian law because of the private use exception.

[14] On January 20, 2022 the committal judge ordered the appellant’s committal for extradition on the offence of accessing child pornography because the private use exception was a defence and, consequently, it was not within her jurisdiction to consider it. The committal judge further held that even if it was open to her to take into account the private use exception, it was unclear whether the appellant could bring himself within its ambit since A.K.’s consent to sharing the Images was arguably tainted by their prior exploitative relationship.

[15] The Minister of Justice subsequently ordered the appellant’s surrender to stand trial on the California state charges of unlawful sex with a minor younger than 16 and soliciting a minor to create obscene matter. The Minister concluded that his extradition would not be unjust or oppressive, or contrary to s. 7 of the Charter, and that the applicant’s refugee claim in Canada would not be an impediment to his surrender.

ISSUES

(i) Did the application judge err in dismissing the appellant’s disclosure application on the basis that there was no nexus between the alleged misconduct and the extradition proceedings?

(ii) Did the committal judge err in finding the appellant’s conduct would have constituted an offence punishable under s. 163.1 of the Criminal Code and committing him for extradition on this basis?

(iii) Was the Minister’s decision to order the appellant’s surrender unreasonable?

ANALYSIS

(1) The disclosure judge properly dismissed the application for disclosure on the basis that there was no nexus between the alleged misconduct and the issues relevant to committal

[16] The appellant does not appear to dispute that a stay of extradition proceedings is available only where there is a nexus between the conduct alleged to constitute an abuse of process and the issues relevant to the extradition. The appellant’s argument is that the application judge interpreted the nexus requirement unduly narrowly, by holding that a stay of extradition proceedings would be available only where the requesting state was itself directly or indirectly involved in the alleged misconduct. He further argues that the initial arrest by Canadian authorities on March 19, 2021 was a pre-textual or “disguised” extradition arrest since Canadian officials were aware at the time that the appellant was wanted to face criminal charges in the U.S. Therefore, his arrest by Canadian officials was sufficiently connected with the extradition process such that the abuse he suffered in that arrest could give rise to a stay of his extradition, and he ought to have received the disclosure he requested.

[17] We do not agree.

[18] Contrary to the appellant’s submission, the application judge did not proceed on the basis that a stay of extradition proceedings would be available only if the requesting state had engaged in misconduct. Rather, a fair reading of the application judge’s reasons shows that he identified misconduct by the requesting state as one way in which the connection between the alleged misconduct and the issues relevant to extradition could be established. The application judge found that in the circumstances of this case, there was simply no such connection.

[19] The application judge noted that the evidence established legitimate grounds for Canadian authorities to arrest him on March 19, 2021 for violations of the IRPA, since the appellant had entered Canada while subject to an arrest warrant on criminal charges after cutting off his electronic monitoring bracelet in contravention of his release terms in California. The application judge further pointed out that in this case, the Attorney General was not intending to tender any evidence obtained through the March 19, 2021 arrest at the committal hearing. Given the absence of any connection between the alleged misconduct and the issues relevant to committal, the application judge dismissed the application for disclosure.

[20] We see no error in the application judge’s analysis or conclusion. In oral submissions, counsel for the appellant did not dispute that there were reasonable and probable grounds for Canadian authorities to arrest the appellant for breach of the IRPA on March 19, 2021. This is sufficient to distinguish the circumstances of this case from those relied upon by the appellant in cases such as United States of America v. Tollman (2006), 212 C.C.C. (3d) 511 (Ont. S.C.) where there were no legitimate Canadian immigration concerns regarding the individual detained, and the only reason for the detention was that the individual was wanted on charges in the U.S.

[21] While the evidentiary threshold for disclosure from R. v. Larosa (2002), 166 C.C.C. (3d) 449 (Ont. C.A.) requires only an air of reality to the alleged misconduct, the absence of a connection to the committal hearing means that the allegations could not support the remedy of a stay. The fact that Canadian officials were aware at the time of the arrest under the IRPA that the U.S. had sought the appellant’s provisional arrest under the Extradition Act did not render the March 19, 2021 arrest for breach of the IRPA unlawful or improper, since immigration and extradition investigations can legitimately run in tandem. Nor does the fact that there is cooperation between Canadian and U.S. officials, whose separate duties lead legitimately to the same practical result, constitute evidence of bad faith: Korea v. Jung, 2023 BCCA 113, 424 C.C.C. (3d) 11, at paras. 86-89.

[22] We therefore dismiss the appeal from the application judge’s ruling on the disclosure application.

(2) The committal judge did not err in committing the appellant to stand trial on the offence of accessing child pornography

[23] The appellant argues that the committal judge erred in committing him to stand trial on the offence of accessing child pornography since his conduct in obtaining the Images from A.K. would not be criminal in Canada, as it falls within the private use exception established in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45.

[24] The committal judge rejected the appellant’s submission in this regard on the basis that the private use exception is a defence to a charge under s. 163.1. The committal judge noted that extradition judges have a circumscribed and limited screening function. Their role is to determine whether there is a prima facie case of a Canadian crime having been committed, and not to become embroiled in questions about possible defences or the likelihood of conviction: M. M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at para. 38. The committal judge therefore found that it was beyond her jurisdiction to consider the applicability of the private use exception. In the alternative, she held that even if she had jurisdiction to consider the applicability of the private use exception, the appellant could not avail himself of the exception because his relationship with A.K. was exploitative, thereby vitiating A.K.’s consent to providing the Images to the appellant.

[25] The appellant argues that the committal judge erred in finding that the private use exception operated as a defence to a charge of possessing child pornography. In the appellant’s view, the private use exception defines the scope of the offence of possessing child pornography and is therefore properly considered in the context of a committal hearing. He also argues that the evidence that his relationship with A.K. was exploitative is entirely circumstantial and ignores the fact that she was 16 years old when she transmitted the Images to him.

[26] We do not agree. The Supreme Court in Sharpe at para. 116 described the private use exception as functioning in the same manner as the defences of artistic merit, educational, scientific or medical purpose and public good. More recently, in R. v. Barabash, 2015 SCC 29, [2015] 2 S.C.R. 522, at paras. 16 and 19, the Supreme Court expressly described the private use exception as operating as a defence to a prosecution under s. 163.1. The committal judge correctly characterized the private use exception as a defence and therefore did not err in finding that it was not an appropriate issue for consideration on the committal application.

[27] We also find that there was ample evidence in the RROC to support the extradition judge’s alternative finding that the appellant’s relationship with A.K. was exploitative, including that the alleged sexual assaults on A.K. began when she was 14 and the appellant was 21. Moreover, the sexual assaults occurred in secret while A.K. was living in her family’s home and resulted in AK becoming pregnant twice. It was open to the committal judge to conclude that AK’s supposedly free will in sending the Images to the appellant just ten days after she turned 16 was tainted by their prior exploitative relationship.

[28] We therefore dismiss this ground of appeal.

(3) The Minister of Justice’s surrender order was reasonable

[29] It is agreed that the standard of review of the Minister’s decision to order the applicant’s surrender is reviewable on a standard of reasonableness.

[30] The appellant argues that the Minister’s reasons on the private use exception relied exclusively on the committal judge’s reasons, which amounts to an impermissible delegation of discretion. We do not agree that the Minister did so. The Minister reviewed the appellant’s submissions and the record in front of him before agreeing with some of the committal judge’s conclusions. The Minister further noted that he must balance any absence of an equivalent defence in the U.S. against other criteria such as Canada’s treaty obligations. We see no basis to disturb the discretionary balancing engaged in by the Minister.

[31] The appellant further argues that the Minister’s decision was unreasonable because he failed to meaningfully consult with the IRCC, as required by s. 40(2) of the Extradition Act. While the appellant concedes that the Minister of Justice did consult with the IRCC, he argues that this consultation was insufficient because the latter concluded that it would be premature to conduct a risk assessment in relation to the appellant’s potential deportation to India following his extradition to the United States.

[32] We see no merit to this ground of appeal. The Minister of Justice provided the IRCC with relevant information respecting the appellant’s circumstances and the proposed extradition to the U.S. The IRCC subsequently provided the Minister with its assessment, which included information on the potential implications of the extradition proceedings on the appellant’s Canadian immigration status, a risk assessment for the U.S., and potential relief available to the appellant to resist removal from the U.S.

[33] It is true that the IRCC concluded that it would be premature to conduct a risk assessment with respect to the appellant’s potential deportation to India, as such deportation was not an entirely foreseeable consequence of his extradition to the United States. As the IRCC pointed out, even if extradited, the appellant still faced trial in the U.S. and potential incarceration if convicted before any removal to India could be contemplated. The IRCC’s finding of prematurity aligns with the Charter and Canada’s international human rights obligations, which require that a risk assessment be contemporaneous with a refugee claimant’s removal to the country against which they claim protection: Németh v Canada, 2010 SCC 56, [2010] 3 S.C.R. 281, at paras. 50, 103 and 114; Bulaman v. Canada, 2015 QCCA 1473, at paras. 62-69.

[34] The IRCC’s assessment was meaningfully taken into account by the Minister of Justice in his surrender decision. In particular, the Minister relied upon the information provided by the IRCC regarding avenues available to the appellant to challenge his potential removal from the U.S. The Minister made further inquiries with the U.S. Department of Justice about the removal process and the availability of mechanisms throughout to prevent deportation. All this information enabled the Minister to knowledgeably evaluate the appellant’s concerns regarding the possibility of his subsequent deportation to India if he were extradited to the U.S.

[35] The Minister meaningfully consulted with the IRCC, as required by s. 40(2) of the Extradition Act, and his surrender order was reasonable. We therefore dismiss the appellant’s application for judicial review of that order.

DISPOSITION

[36] The appeal of the committal order and the judicial review application of the Minister’s surrender decision are dismissed.

“M. Tulloch C.J.O.”

“J.C. MacPherson J.A.”

“P.J. Monahan J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.