2022 ONSC 1271

COURT FILE NO.: CR-21-65 DATE: 20220302

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an Application pursuant to section 29 of the Extradition Act

BETWEEN:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Applicant/Requesting State – and – SAMANTHA CUROW a.k.a. KATHRYN a.k.a. STACI a.k.a. REALSTACIDOLL Respondent/Person Sought for Extradition

Counsel: Mr. C. Bundy, for the Applicant (Crown) Mr. P. Ducharme, for the Respondent (Curow)

HEARD: February 4, 2022

REASONS FOR DECISION

CONLAN J.

I. The Application

[1] The Attorney General of Canada, on behalf of the United States of America, applies for an order for the committal of Samantha Curow, also known as “Kathryn”, also known as “Staci”, also known as “realstacidoll”, hereinafter referred to as “Ms. Curow”, into custody, pursuant to section 29 of the Extradition Act, S.C. 1999, c. 18, as amended (“Act”), to await surrender for the offence set out in the Authority to Proceed (“ATP”) signed by counsel for the Minister of Justice of Canada dated July 27, 2021, namely, extortion contrary to section 346(1) of the Criminal Code.

[2] It is alleged that a celebrity athlete in the United States of America, on or about February 16, 2018, engaged the services of two female sex workers. Sexual activity occurred at the complainant’s apartment, during which activity a video was recorded on one of the sex worker’s mobile telephone. Following the encounter, the sex worker who recorded the video and two other women from Canada, including Ms. Curow, attempted to extort money from the complainant in exchange for not publishing the video.

[3] The requesting state has furnished anticipated evidence provided to the American authorities by the complainant himself, his former companion, the sex worker who recorded the video, and an FBI special agent.

II. The Hearing

[4] The extradition hearing took place at Court, over the Zoom platform, on February 4, 2022. As is typical, no viva voce evidence was adduced by either side. The Applicant filed extensive materials in advance, while Ms. Curow did not file anything. Counsel for Ms. Curow delivered very brief oral submissions in opposition to the surrender order. The hearing lasted about ninety minutes. Two exhibits were entered by the Applicant, without objection – the ATP referred to above (Exhibit 1) and the Record of the Case for the Prosecution, “ROC”, (Exhibit 2), certified by the Assistant U.S. Attorney for the Central District of California on February 18, 2021.

III. The Test for an Order of Committal

[5] Under section 29(1) of the Act, an order of committal is mandatory, it shall be made, if two requirements are met. First, there must be evidence of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the ATP. Second, the judge must be satisfied that the person to be committed is the person sought by the extradition partner.

The First Criterion – Sufficiency of the Evidence

[6] “The reference to evidence that ‘would justify committal for trial in Canada’ in s. 29(1)(a) of the Extradition Act incorporates the test that a justice conducting a preliminary inquiry must apply when deciding whether to commit an accused for trial in Canada”, and “[t]his is also the test that applies to whether a trial judge should order a directed verdict of acquittal at the end of the Crown’s case”. M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at paragraph 37.

[7] “The extradition judge’s role is to determine whether there is a prima facie case of a Canadian crime”. An extradition hearing should be a relatively expeditions proceeding; it is not a trial. M.M., supra, at paragraph 38.

[8] Though it is also true, however, that an extradition judge may grant Charter remedies and must engage in a limited weighing of the evidence to determine whether there is a plausible case. “[W]here the evidence is so defective or appears so unreliable that the judge concludes it would be dangerous or unsafe to convict, then the case is considered insufficient for committal”. M.M., supra, at paragraph 40.

[9] “The test for committal for trial is whether there is any admissible evidence that could, if believed, result in conviction”. “Where the evidence is circumstantial, the judge must conduct a limited weighing of the circumstantial evidence to assess whether, in light of all the evidence including any defence evidence, it is reasonably capable of supporting the inferences that the Crown asks to be drawn”. M.M., supra, at paragraph 45.

[10] There must be a committal for trial if there is some evidence of culpability for each and every essential element of the offence. M.M., supra, at paragraph 46.

[11] The starting point is that the extradition judge should consider the certified evidence presented by the requesting state to be presumptively reliable. That presumption may only be rebutted by evidence that shows fundamental inadequacies or defects in the ROC. M.M., supra, at paragraph 72. There is a high threshold for refusing committal on the basis that the evidence is unreliable. Only where the evidence is so defective or so manifestly unreliable that it would be dangerous or unsafe to act on is the extradition judge justified in refusing committal on that basis. M.M., supra, at paragraph 63.

The Second Criterion - Identification

[12] There are two parts to the identification issue. First, is the person named in the ROC the person who committed the alleged conduct? Second, is the person named in the ROC the person before the Court? That second question is to be examined on the basis of the civil standard of proof – on a balance of probabilities. United States of America v. Danielson, 2008 BCCA 519, at paragraphs 21-22.

[13] Section 37 of the Act sets out two different ways that identity may be established, and either one will suffice. One is that the name of the person before the Court is similar to the name that is in the documentation relied upon by the requesting state. The other is that the physical characteristics of the person before the Court are similar to those evidenced in a photograph, fingerprint, or other description of the person.

IV. The Essential Elements of the Canadian Offence of Extortion, section 346(1) of the Criminal Code

[14] As applicable to our alleged facts, there are four essential elements of the offence of extortion: (i) the use of a threat, (ii) the intent to obtain something by means of the threat, (iii) an inducement or attempted inducement, and (iv) the absence of reasonable justification or excuse for the use of the threat and the making of the inducement. R. v. Davis, at paragraph 52.

V. The Test for an Order of Committal as Applied to our ROC

[15] In his brief oral submissions, counsel for Ms. Curow invited this Court to carefully review the ROC to ensure that the evidence is sufficient to make the order for committal. I have done so. I conclude that it is sufficient.

[16] The evidence may be summarized as follows.

[17] First, the alleged victim is expected to testify that he engaged in sexual activity with two previously unknown sex workers. Several days later, he received text messages from a person using the name “Ashley”. Apparently, there was a video of the sexual activity that had occurred in the alleged victim’s apartment. There was a demand by “Ashley”, or at least a suggestion, that the video would go away if the alleged victim paid some money.

[18] Second, the alleged victim’s former companion is expected to testify that she received some electronic communications and spoke on the telephone with someone using the name “Kathryn”. That person sent to the companion several images of the alleged victim nude and engaging in various sexual acts. The existence of the video was also referred to by “Kathryn”.

[19] Third, Alexandra Wells (“Wells”) is expected to testify that she was one of the sex workers inside the alleged victim’s apartment. A video was taken of the activity. Later, Wells sent clips of the video to someone named “Staci”, her friend. “Staci” was also sent the name and telephone number of the alleged victim. Wells wanted “Staci” to help extort money from the alleged victim in exchange for not publishing the video, as Wells believed that “Staci” was an expert in that type of thing.

[20] Frankly, the anticipated evidence of Wells alone is enough to satisfy the test for committal. It, alone, establishes a prima facie case against Ms. Curow with regard to each and every one of the four essential elements of the offence of extortion. According to Wells, she continued to communicate regularly with “Staci”. The subject matter of their communications was the extortion attempt. “Staci” told Wells that she had texted and talked with the alleged victim and had demanded from him $2,000,000.00 in exchange for not publishing the sex video. Wells and “Staci” then met in person in Canada. Wells identified the female shown in the colour photo attached as Exhibit “A” to the ROC (believed to be Ms. Curow) as “Staci”, someone that Wells knew from before this extortion attempt. The said photo was taken by the FBI from Ms. Curow’s public Instagram page. Finally, Wells identified the telephone number for “Staci” as 647-937-0387.

[21] If Ms. Curow is in fact “Staci”, then her apparent confession to Wells that she (i) used a threat, the publishing of the sex video, (ii) with the intent of obtaining something by means of the threat, money, (iii) and attempted to induce the alleged victim to pay to her two million dollars in exchange for not publishing the sex video, makes a prima facie case on three of the four essential elements of the offence of extortion. The final essential element, the absence of reasonable justification or excuse, is obvious from the context, but more important that sub-issue is not relevant to the test for committal – that is a matter for trial.

[22] Fourth, the FBI will testify that another female named Malisha Brooks (“Brooks”) was arrested in Florida on April 14, 2018. For reasons that are not necessary to detail here, Brooks was believed to be involved in the extortion attempt. Upon her arrest, Brooks, a Canadian citizen, made statements to the FBI inculpating her friend “Staci” in the extortion plot. Brooks also consented to the FBI searching her cellular telephone. On that device, a contact was listed as “New Staci Pal” with a telephone number of 647-937-0387, the same number that had been identified by Wells as belonging to “Staci” (believed to be Ms. Curow). The FBI also obtained records from Instagram which show that telephone number as belonging to “@realstacidoll”. That account displays numerous pictures of the account holder, believed to be Ms. Curow. The FBI will testify that both Brooks and Ms. Curow, at different times, used the code name “Kathryn”.

[23] The ROC contains much more detail than what is summarized above, however, what is outlined herein is enough to demonstrate that, unquestionably, there is admissible evidence which, if believed, could result in Ms. Curow’s conviction for extortion.

[24] The first criterion has been met, and the first part of the second criterion has been met (that the person named in the ROC is the person who committed the alleged conduct).

[25] As for the final enquiry, in his brief oral submissions, counsel for Ms. Curow did not dispute that the person before the Court is the person named in the ROC. I find, on balance, that she is. She signed into Zoom for the Court attendance under the surname “Curow”. She answered to the name of Samantha Curow, the same name that is contained in the ROC. She looks strikingly similar to the person shown in Exhibit “A” attached to the ROC.

VI. Conclusion – the Order of this Court

[26] I do not speak for the Minister of Justice of Canada. What transpires at the next stage of the extradition process is for another day.

[27] For today, the Application is granted. This Court orders the committal of Ms. Curow into custody, pursuant to section 29 of the Act, to await surrender. I have signed the Order of Committal and the Report of the Judge. As I am statutorily required to do, I have informed Ms. Curow that she will not be surrendered until after the expiry of thirty days, and that she has the right to appeal the Order of Committal, and that she may apply for judicial interim release.

C.J. Conlan Electronic signature of Conlan J. Released: March 2, 2022