Court File and Parties

COURT FILE NO.: CR-18-00000016-00MO DATE: 20190618 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Applicant – and – GREGORY HIBBERT Respondent/Person Sought for Extradition

Counsel: Christopher Bundy, for the Applicant Leo Adler, for the Respondent/Person Sought for Extradition

HEARD at Kingston: 17 June 2019

THE PUBLICATION, BROADCAST OR TRANSMISSION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT OR A WITNESS IN THIS PROCEEDING IS RESTRICTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.

Graeme Mew J. (ORALLY)

Bail Decision (Application by a Person Sought for Extradition)

[1] On 30 August 2017, Gregory Hibbert pleaded guilty in the Ontario Court of Justice to two counts of voyeurism, one count of making child pornography and one count of accessing child pornography. He was sentenced to three years in prison, less the credit of hundred and five days arising from his pretrial custody. He has remained in prison since that time. His statutory release date is on 20 June 2019.

[2] The charges which Mr. Hibbert pleaded guilty to arose from events that had taken place in Ontario, specifically in Bowmanville and Kingston. He had been arrested in Kingston on 7 July 2016. At the time he had, since 1 July, been staying at the apartment that his friend SZ and her eight-year-old daughter lived in. Prior to that he had spent a couple of days in Bowmanville visiting another friend, KM. She had a nine-year-old daughter and seven-year-old son. Mr. Hibbert attempted to surreptitiously record the two young children of KM and took two videos, each two minutes in length of the daughter of SZ engaging in various bathroom activities. A SD card that was seized contained 21 videos that were categorised by the police as child pornography.

[3] Mr. Hibbert, who at the time had no criminal record, was held in custody from the time of his arrest until he was released on bail on 15 September 2016. He then returned to live with his family in British Columbia, subject to a number of conditions, until he came back to Ontario a little under a year later to enter his pleas and commence his sentence.

[4] Electronic devices seized in connection with Mr. Hibbert's arrest also revealed digital images of a female child's genitals which are alleged to have been taken by Mr. Hibbert between 22 June and 29 June 2016 during the course of a visit to the Memphis, Tennessee area where he stayed at the residence of RS and AS and their three-year-old daughter.

[5] In September 2016, Canadian authorities advised the United States authorities of the discovery of images that had been taken in Tennessee. RS and AS were shown some of the images and identified seven which they believed to be close-ups of their daughter as she used the toilet. In several of the photographs the child's pubic area and part of the wall and toilet plunger were visible. In others, only the child's thighs and pubic area were visible. The child's face was not visible in any of the photographs, but AS said that she recognised markings on the child's body and confirmed her belief that it was her daughter in the photographs. In five of the seven photographs, the child's genitals are clearly visible and in two others the child's thigh partially blocks the view of her pubic region.

[6] Also in or around September 2016, the Kingston Police had apparently also contacted the police in British Columbia. Mr. Hibbert's mother, Karen Hibbert, advises that officers from the Royal Canadian Mounted Police in Kamloops attended at her home in mid-September and removed computers and other electronic devices belonging to Gregory Hibbert.

[7] On 14 December 2016, a Grand Jury in the Western District of Tennessee of the United States District Court indicted Mr. Hibbert on three counts, which the Assistant United States Attorney summarises as "producing images of child pornography – i.e., Visual depictions of the minor engaged in sexually explicit conduct, which includes the lascivious display of the genital or pubic area". The equivalent Canadian offence is making child pornography contrary to section 163.1(2) of the Criminal Code.

[8] On 2 November 2017, the United States requested the extradition of Mr. Hibbert to face trial in Tennessee. On 17 November 2017, the Minister of Justice of Canada authorised the Attorney General of Canada to bring extradition proceedings against Mr. Hibbert. On 20 February 2018, Mr. Justice Schreck signed a warrant for Mr. Hibbert's arrest in relation to the extradition request.

[9] Mr. Hibbert resists extradition on the principal ground that evidence upon which the American prosecution will be founded was obtained in Ontario in violation of his rights under sections 7 and 8 of the Canadian Charter of Rights and Freedoms. On 10 December 2018, I dismissed in part an application brought by the Attorney General, on behalf of the United States, for summary dismissal of Mr. Hibbert's application for relief, and ordered that Mr. Hibbert’s claim that the obtaining of evidence from his electronic devices by the Kingston Police Force, and the subsequent sharing of that information with United States authorities breached his Charter rights, should be allowed to proceed: reasons reported at Attorney General of Canada on behalf of the United States of America v. Hibbert, 2018 ONSC 7400.

[10] In the meantime, on 28 November 2018, an information was sworn in Kamloops, British Columbia, charging Mr. Hibbert with three counts of voyeurism, possession of child pornography and making child pornography. Those charges remain outstanding.

[11] Mr. Hibbert now seeks bail upon his release from prison later this week pending the hearing of his application for relief. That hearing, although presently scheduled for early October, is likely to be postponed until 2020 so that a constitutional question raised by Mr. Hibbert can be heard and determined.

[12] The Attorney General opposes bail.

[13] It may be helpful, at this juncture, to note that the Parole Board of Canada has imposed certain special conditions to take effect upon Mr. Hibbert's release which it considers reasonable and necessary in order to protect society and to facilitate Mr. Hibbert's successful reintegration into society. These conditions remain in effect for one year. The Parole Board's decision, after referencing the pending BC and US charges records:

You have engaged in your Correctional Plan and your potential for re-integration is assessed as high. Your institutional behaviour was described by CSC as exemplary. You were polite and punctual. You pled guilty and have taken responsibility for your offences. You have shown empathy to your victims. These factors demonstrate insight into your offending.

[14] The specific terms of Mr. Hibbert's conditional release are:

COMPUTER/INTERNET RESTRICTION Not to own, use or possess a computer, as defined in s. 342.1 of the Criminal Code, or any technological device, that would allow you unsupervised access to the internet.

AVOID PERSONS - VICTIM(S) No direct or indirect contact with the victim(s) or any member of the victim's family.

REPORT RELATIONSHIPS Immediately report all intimate sexual and non-sexual relationships and friendships with females and males that have parental responsibility for children under the age of 16 to your parole supervisor.

[15] Additional restrictions that had been recommended by Correctional Services Canada were considered by the Parole Board to be redundant because of prohibition orders that were made for 15 years as part of the sentence imposed on Mr. Hibbert in August 2017, pursuant to section 161(1) of the Criminal Code, that prohibit him:

(a) Attending a public park or public swimming area where persons under the age of sixteen years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; or

(b) Seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of sixteen years; or

(c) Having any contact – including communications by any means – with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate.

Unless the offender does so under the supervision of Delmas Hibbert, William Hibbert, Karen Hibbert, Alissa Neilsen, Jean Faris or an incidental to conducting day to day activities.

(d) Using the internet or other digital network, unless the offender does so in accordance with conditions set by the court.

Except for the purposes of email, or streaming videos such as Netflix, hulu, direct tv, hbo, apple tv, for the purpose of seeking or during the course of employment, for online banking, legal research, under the direct visual supervision of Delmas Hibbert, Karen Hibbert, William Hibbert, Alissa Neilson, Jean Faris.

[16] Pursuant to the Extradition Act, the provisions for judicial interim release, provided for by section 515 of the Criminal Code, apply, with appropriate modifications, in extradition proceedings. The onus is on the Attorney General to demonstrate that the person sought for extradition is not entitled to judicial interim release.

[17] A letter from the office of the United States Attorney for the Western District of Tennessee states that if Mr. Hibbert is convicted of the charge against him, he faces up to 30 years imprisonment. No issue is taken with me relying on this letter to that extent.

[18] The bail plan put forward on behalf of Mr. Hibbert contemplates terms similar to those required by the Parole Board. In addition, it is proposed that he should live either at the John Howard Society Lighthouse facility in Kamloops or, if that facility is not available, at the home of his parents subject to similar limitations that pertained when he was last on bail. On that occasion, Mr. Hibbert entered into a recognizance for $10,000 without deposit, with his father, Delmas Hibbert as surety.

[19] Other terms were suggested that could, if necessary, be implemented to allay any other concerns that the Attorney General might have, including placing all of Mr. Hibbert's bank accounts and other assets under the control of his mother. Guided by an indication from me that I was inclined to grant bail on suitable terms, counsel have crafted terms of bail which I will recite at the end of these reasons.

[20] The Attorney General, in response, nevertheless argues that Mr. Hibbert should be denied bail, having regard to the primary, secondary and tertiary grounds for detention in custody set out in section 515(10) of the Code.

[21] I therefore turn to each of these in order.

[22] The primary ground for denying judicial interim release is where the continued detention of an individual is necessary to ensure his or her attendance in court to be dealt with according to law. In United States of America v. Edwards, 2010 BCCA 149, Mr. Justice Low, in a passage that has been followed in numerous subsequent cases, including many in Ontario, observed, at para 18, that Canada's international obligations require courts considering bail for an individual sought by another country to "look at the risk of non-appearance even more cautiously than might be the case in domestic proceedings".

[23] The Attorney General argues that, faced with the strength of the case against him and a sentence of up to thirty years, Mr. Hibbert poses a significant flight risk.

[24] In response, it is argued on behalf of Mr. Hibbert that despite his knowledge of the possibility of charges in the United States and British Columbia, he flew back from British Columbia to Ontario, unaccompanied, to enter his plea and commence his prison sentence on the Ontario charges. Furthermore, and in the full knowledge of the extradition proceedings, he has not walked out of prison, despite being in a minimum-security facility. Nor would it be easy for him to flee anywhere. He surrendered his passport and his Nexus card in 2016. He has no connections with any other countries.

[25] In an unreported decision in United States v. Obi, 21 August 2015, Mr. Justice Nordheimer stated, at p. 4:

.... there is always a concern in extradition proceedings that Canada be seen as honouring its obligations to its extradition partners. However that consideration does not mean that just because there may be concerns regarding the release of a person sought, a detention order should be made. No application for interim release is without risk. The issue is the degree of risk that is posed. If the presence of an element of risk alone was a sufficient basis for the granting of a detention order, then the Extradition Act would have so provided.

[26] To similar effect, in United States v. Okoro, unreported, 11 May 2017, Madam Justice Fairburn stated, at p. 3:

While I note that the risk of non-appearance should be assessed more cautiously in this context, a principle of law that seems well-supported in the jurisprudence, it does not mean that it should overwhelm the analysis when determining whether the Person Sought is suitable for release. As for the primary ground, the question remains one of risk assessment and whether, having regard to all of the circumstances, the Persons [sic] Sought’s detention is necessary to ensure his attendance in court to be dealt with according to law.

[27] I regard the risk of Mr. Hibbert failing to appear when required to do so by this court as being very low. There is no indication, other than the seriousness of the charge which he faces in the United States, that suggests he is a flight risk. All of his behaviour since being apprehended shows him to be a person who has complied with every requirement imposed on him by this court and during his time as a federal prisoner. Furthermore, as a practical matter, it seems to me highly unlikely that he would repay the trust and support that his parents, as proposed sureties, are prepared to provide to him, by fleeing. And if he were to flee, there are significant limitations on where he could go. There would be no point in him going somewhere that had an extradition treaty with the United States. The only time he has ever been outside of North America was on a university sponsored trip to Finland. He has no connections with any other countries. Furthermore, he has no passport.

[28] In short, I do not find a basis to deny Mr. Hibbert bail on the primary ground.

[29] The secondary ground for the detention of an accused in custody is where such detention is necessary for the protection or safety of the public, including any person under the age of 18 years, having regard to all of the circumstances including any substantial likelihood that the individual will, if released from custody, commit a criminal offence or interfere with the administration of justice.

[30] The Attorney General argues that Mr. Hibbert's past behaviour is a reliable indicator of his future behaviour. The offences which Mr. Hibbert has already been found guilty of, together with those that he now faces in British Columbia and the United States, are, to adopt the language of Madam Justice Ratushny in R. v. Philion, 2015 ONSC 8171, at para. 28,

... inherently violent and extremely serious and harmful without ... any actual physical sexual assaults against children. Child pornography offences are enormously harmful. Child pornography pictures depict young children who have been subjected to extreme physical, mental and emotional violence.

[31] The British Columbia charges involve not only a point in time coincident with the Ontario offences but, also, the making of child pornography between July 2010 and August 2011.

[32] The Attorney General criticises the bail plan as "non-existent" in terms of protecting the public. Both of Mr. Hibbert's parents work full-time. He would be unsupervised for much of the day. His parents' home is close to two public parks and an elementary school.

[33] On behalf of Mr. Hibbert, it is submitted that his past behaviour while on bail is strongly indicative of him not reoffending. Mr. Hibbert himself has said, in an application for day parole which he did not, ultimately, go through with, that the programming he has taken while in prison will provide him with the knowledge and skills necessary to ensure that he can and will avoid and/or defuse any thoughts, emotions or situations that could lead to him reoffending. He states that he understands the damage and grief that his actions have caused for his victims as well as for his family and loved ones.

[34] In my view, the risk posed by Mr. Hibbert now is no greater now than it was when he was released on bail in September 2016. In fact, if anything, it is lower, particularly if Mr. Hibbert has, indeed, benefited from and absorbed the lessons learned from the programming he has received while incarcerated.

[35] The tertiary ground requires me to consider whether Mr. Hibbert's detention is necessary to maintain confidence in the administration of justice, having regard to all of the circumstances, including:

i. the apparent strength of the case against Mr. Hibbert; ii. the gravity of the offence; iii. the circumstances surrounding the commission of the offence; and iv. the fact that Mr. Hibbert is liable, on conviction, for a potentially lengthy term of imprisonment.

[36] The Attorney General places great emphasis on the seriousness of the charges and in particular the inherently violent characteristics of child pornography offences. The United States has a strong case based on substantially similar evidence to that which led to Mr. Hibbert's guilty pleas in Ontario. And he faces the possibility of a very substantial jail term.

[37] There is no doubt that most right-thinking citizens find offences involving child pornography highly repugnant. That said, in R. v. St-Cloud, 2015 SCC 27, the Supreme Court at para. 80 serves a reminder that assessing what is in the public interest when considering the tertiary ground must be seen through the eyes of a reasonable member of the public, "a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of the case is inaccurate or who disagrees with our society’s fundamental values".

[38] The Supreme Court in St-Cloud also notes that the four listed circumstances are not exhaustive. A court must not order detention automatically even where the four circumstances support detention. Rather, the court must consider all of the circumstances of each case, paying particular attention to the four listed circumstances. This requires a balancing exercise at the end of which, the ultimate question is whether detention is necessary to maintain confidence in the administration of justice.

[39] I have carefully considered all of the circumstances in this case. Three of the four enumerated factors under the tertiary ground, taken alone, could support detention. However, when placed in the context of the case as a whole, I am not persuaded that detention is appropriate. In my view, the measures already in place as a result of the sentence that was imposed on Mr. Hibbert for the Ontario offences, together with suitable bail conditions, more than adequately satisfy the objective of administering justice in the public interest, such that the circumstances do not justify detention.

[40] The Attorney General suggested if I was minded to grant bail, that, having regard to the approach described by Justice Wagner in R. v. Antic, 2017 SCC 27, at para. 67, the circumstances in this case, with proposed sureties resident in a different province, warrant requiring a substantial cash deposit. I do not agree. The learned justice of the peace who granted bail in 2016 was satisfied with a single non-cash surety. At this juncture, both parents are offered as sureties. The process of recovering financial obligations from someone liable therefor in another common law province or territory of Canada is not unduly difficult.

[41] Admittedly, given the potential sentence in the United States, the stakes for Mr. Hibbert could be said to be higher. I am therefore prepared to set the amount of the recognizance at $40,000, jointly and severally, with both parents as sureties, but with no requirement for a deposit. Mr. Bundy argued that this amount was too low, having regard to the amount typically set for bail in other extradition cases. In setting the figure of $40,000 for each parent, I have endeavoured to select a figure that is proportionate, having regard to the need for the amount to act as a significant penalty in the event of a breach. But the principles articulated in R. v. Antic apply with similar effect in extradition cases as they do in other bail situations.

Conditions

[42] Mr. Hibbert’s bail will be subject to the following conditions. He shall:

(a) Within 24 hours of arriving in Kamloops, BC, report in person to a bail supervisor at the Kamloops Community Corrections Office, located at 102-455 Columbia Street, Kamloops, BC (250-828-4008) between 8 am and 4:45 pm and thereafter as directed by his bail supervisor;

(b) If not done so already, deposit all passports with officer Jesse Dean within 24 hours after release and do not apply for any further travel documents;

(c) Keep the peace and be of good behaviour;

(d) Reside at an address in British Columbia approved of by his parole officer and by his bail supervisor, and be amenable to the routine and discipline of that residence;

(e) Be in his place of residence, daily between 9 pm and 7 am except for medical emergency or while in the company of a surety or William Hibbert or Alissa Neilson;

(f) Remain in the Province of British Columbia except to travel with one or both of his sureties to and from Ontario to attend court or consult with counsel except for the current return to British Columbia as arranged by Corrections Services Canada;

(g) Advise officer Jesse Dean from the Toronto Fugitive Squad (416-808-5935) and his British Columbia bail supervisor within 72 hours of any planned travel to Ontario and provide his itinerary;

(h) If requested by the Court, return to Ontario to attend court within 72 hours of receiving such a request;

(i) Not have any contact or communicate, directly or indirectly, or be in the company of any child under the age of 16 unless in the direct presence of one of his sureties or with William Hibbert or Alissa Neilsen;

(j) Not use, operate, possess a cell phone, tablet or any other electronic device or equipment that has the ability to video record or take a picture/photograph; and

(k) Not possess or use any device capable to accessing the internet except for the purpose of email or streaming video such as Netflix, Hulu, Direct TV, HBO or Apple TV, for the purpose of seeking employment or during the course of employment, for on-line banking, legal research or except under the direct supervision of the same people, Delmas Hibbert, William Hibbert, Karen Hibbert or Alissa Neilsen.

[43] I would add only this. Nothing in these reasons is intended to interfere with the independent evaluation that any other judicial officer may be invited to undertake in the event of Mr. Hibbert being arrested when he returns to British Columbia and subsequently seeking judicial interim release in relation to such charges as are laid against him there.

Graeme Mew J.

Handed down: 18 June 2019 (orally)

COURT FILE NO.: CR-18-00000016-00MO DATE: 20190618 ONTARIO ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Applicant – and – GREGORY HIBBERT Respondent/Person Sought for Extradition

BAIL DECISION (Application by a Person Sought for Extradition)

Mew J.

Handed down: 18 June 2019 (orally)